Kwon v O'Neil [2002] NSWCA 116

Kwon v O'Neil [2002] NSWCA 116

The claimant’s notice of motion was incompetent because the correct procedure to challenge a Registrar’s decision is by notice of motion under Part 61 rule 4, not by separate proceedings. Leave to appeal was not required for this type of order. The notice of motion was therefore dismissed.

Parties
Claimant: Ki Bun Kwon; Opponent: Peter O'Neil
Jurisdiction
Australia
Judgment Date
12 April 2002
Procedural Posture
Notice of Motion (review of Registrar's Decision) / Application for Review of Registrar's Decision in the Court of Appeal
Outcome
Notice of Motion dismissed
Legal Topics
Review of Registrar’s Decision, Procedure for Challenging Interlocutory Orders, Competency of Appeal, Leave to Appeal
Civil Procedure Review of Registrar’s Decision Procedure for Challenging Interlocutory Orders Competency of Appeal Leave to Appeal

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Parties

Ki Bun Kwon

Claimant

Peter O'Neil

Opponent

Procedural Posture

Notice of Motion (review of Registrar's Decision) / Application for Review of Registrar's Decision in the Court of Appeal

Legal Issues

  1. 1 Whether the notice of motion seeking review of the Registrar's decision was competently brought
  2. 2 What is the correct procedure for challenging a Registrar’s decision in the Court of Appeal
  3. 3 Whether leave to appeal was required against the Registrar’s procedural orders

Ratio Decidendi

The claimant’s notice of motion was incompetent because the correct procedure to challenge a Registrar’s decision is by notice of motion under Part 61 rule 4, not by separate proceedings. Leave to appeal was not required for this type of order. The notice of motion was therefore dismissed.

Court Disposition

Notice of Motion dismissed

Orders

  • Notice of motion filed 1 November 2001 dismissed
  • No order as to costs