AB v State of New South Wales [2014] NSWCA 243

AB v State of New South Wales [2014] NSWCA 243

An order for summary dismissal under r 13.4 UCPR is interlocutory in law and requires leave to appeal pursuant to s 101(2)(e) Supreme Court Act 1970 (NSW); therefore, an appeal brought as of right is incompetent. The costs of the objection to competency fall within 'costs of the appeal' under r 51.41(2), with no order as to costs since the application to dismiss was out of time and the regime thereby applies.

Parties
Appellant/respondent on the Motion: AB; 1st Respondent/applicant on the Motion: State of New South Wales; 2nd Respondent: The School
Jurisdiction
Australia
Judgment Date
22 July 2014
Procedural Posture
Appeal / Determination of Motion to Dismiss Appeal as Incompetent
Outcome
Appeal dismissed as incompetent.
Legal Topics
Competency of Appeal, Interlocutory Orders, Summary Dismissal, Costs
Civil Procedure Appeals Competency of Appeal Interlocutory Orders Summary Dismissal Costs

Case Brief

Summary, issues, holding and outcome

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Parties

AB

Appellant/respondent on the Motion

State of New South Wales

1st Respondent/applicant on the Motion

The School

2nd Respondent

Procedural Posture

Appeal / Determination of Motion to Dismiss Appeal as Incompetent

Legal Issues

  1. 1 Whether an appeal lies as of right or by leave from a summary dismissal under r 13.4 UCPR
  2. 2 Whether the appeal is incompetent for want of leave
  3. 3 Application of r 51.41 UCPR to objection to competency and associated costs

Ratio Decidendi

An order for summary dismissal under r 13.4 UCPR is interlocutory in law and requires leave to appeal pursuant to s 101(2)(e) Supreme Court Act 1970 (NSW); therefore, an appeal brought as of right is incompetent. The costs of the objection to competency fall within 'costs of the appeal' under r 51.41(2), with no order as to costs since the application to dismiss was out of time and the regime thereby applies.

Court Disposition

Appeal dismissed as incompetent.

Orders

  • The appeal be dismissed as incompetent.
  • No order as to costs.