Hampson v Maleski [2014] NSWCA 155

Hampson v Maleski [2014] NSWCA 155

Harrison AsJ's decision striking out the defence was an interlocutory decision, so the applicant's challenge should have been brought by notice of motion in the Common Law Division rather than by summons for leave to appeal in the Court of Appeal. Given the procedural error and the nature of the issues raised, the appropriate course was to remit the proceedings to the Common Law Division under Supreme Court Act 1970, s 51(2)(b).

Jurisdiction
Australia
Judgment Date
19 May 2014
Procedural Posture
Summons for Leave to Appeal From an Interlocutory Decision of an Associate Judge / On the Papers; Proceedings Wrongly Instituted in the Court of Appeal and Remitted to the Common Law Division of the Supreme Court
Outcome
Proceedings remitted to the Common Law Division of the Supreme Court.
Legal Topics
['appeal From Interlocutory Decision of Associate Judge' 'remitter to Division of the Supreme Court' 'striking Out Defence' 'foreign Judgment and Fraud Defence']
['civil Procedure' 'appeals' 'enforcement of Foreign Judgments'] ['appeal From Interlocutory Decision of Associate Judge' 'remitter to Division of the Supreme Court' 'striking Out Defence' 'foreign Judgment and Fraud Defence']

Case Brief

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Procedural Posture

Summons for Leave to Appeal From an Interlocutory Decision of an Associate Judge / On the Papers; Proceedings Wrongly Instituted in the Court of Appeal and Remitted to the Common Law Division of the Supreme Court

Legal Issues

  1. 1 ["Whether the applicant's summons for leave to appeal from Harrison AsJ's interlocutory decision was wrongly brought in the Court of Appeal rather than by notice of motion in the Common Law Division of the Supreme Court." 'Whether the proceedings should be remitted to the Common Law Division of the Supreme Court under Supreme Court Act 1970, s 51(2)(b).']

Ratio Decidendi

Harrison AsJ's decision striking out the defence was an interlocutory decision, so the applicant's challenge should have been brought by notice of motion in the Common Law Division rather than by summons for leave to appeal in the Court of Appeal. Given the procedural error and the nature of the issues raised, the appropriate course was to remit the proceedings to the Common Law Division under Supreme Court Act 1970, s 51(2)(b).

Court Disposition

Proceedings remitted to the Common Law Division of the Supreme Court.

Orders

  • ['Remit the following proceedings to the Common Law Division of the Supreme Court: Donald Hampson v Nadine Maleski CA 2014/51000.']