GEAR v MORAHAN [1995] NSWCA 165

GEAR v MORAHAN [1995] NSWCA 165

No error has been demonstrated in Smart J's refusal to order the magistrate to state a case; no arguable case for leave to appeal exists, especially in light of the Water Board's undertaking not to plead Anshun estoppel if Mrs Gear brings new proceedings; the statutory and constitutional arguments are without merit.

Parties
Claimant: Mrs Ethel Gear; Opponent: Water Board; Magistrate: Mr M Morahan
Jurisdiction
Australia
Judgment Date
13 November 1995
Procedural Posture
Application for Leave to Appeal / Court of Appeal (nsw Supreme Court) Determination of Application for Leave to Appeal From Smart J
Outcome
Application for leave to appeal dismissed; costs ordered against the claimant (Mrs Gear) on a party and party basis.
Legal Topics
Leave to Appeal, Garnishment, Pensioner Rebates, Anshun Estoppel, Magna Carta and Property Rights, Coronation Oath, Independent Commission Against Corruption Act
Civil Procedure Estoppel Constitutional Law Local Government Law Leave to Appeal Garnishment Pensioner Rebates Anshun Estoppel +3 more

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Parties

Mrs Ethel Gear

Claimant

Water Board

Opponent

Mr M Morahan

Magistrate

Procedural Posture

Application for Leave to Appeal / Court of Appeal (nsw Supreme Court) Determination of Application for Leave to Appeal From Smart J

Legal Issues

  1. 1 Whether leave to appeal from the decision refusing to direct a magistrate to state a case should be granted
  2. 2 Whether the requirement of leave to appeal is unconstitutional or contrary to Her Majesty's Coronation Oath
  3. 3 Whether garnishment of tenant's rent constitutes deprivation of property contrary to Magna Carta

Ratio Decidendi

No error has been demonstrated in Smart J's refusal to order the magistrate to state a case; no arguable case for leave to appeal exists, especially in light of the Water Board's undertaking not to plead Anshun estoppel if Mrs Gear brings new proceedings; the statutory and constitutional arguments are without merit.

Court Disposition

Application for leave to appeal dismissed; costs ordered against the claimant (Mrs Gear) on a party and party basis.

Orders

  • Summons dismissed
  • The claimant to pay the opponent's costs assessed on a party and party basis