Coric v Grotto & Ors; Nelson v Grotto & Ors; Estate of Late F.A. Grotto & 2 Ors [2007] NSWSC 1080

Coric v Grotto & Ors; Nelson v Grotto & Ors; Estate of Late F.A. Grotto & 2 Ors [2007] NSWSC 1080

By application of Supreme Court Rules 1970 Pt 60 r 17(d), any appeal from a decision of an Associate Judge in Family Provision Act proceedings—including interlocutory refusals of summary dismissal—lies to the Court of Appeal, not to a single Judge of the Division. Therefore, I have no jurisdiction to hear the appeals, and the appeals must be removed to the Court of Appeal in accordance with s51 of the Supreme Court Act 1970.

Jurisdiction
Australia
Judgment Date
25 September 2007
Procedural Posture
Appeal / Appeal From Associate Judge's Interlocutory Decision (summary Dismissal Motion) to Supreme Court (equity Division) – Determination as to Proper Appellate Path
Outcome
Appeal proceedings to be removed to Court of Appeal; orders for costs and mediation made; procedural directions given.
Legal Topics
['appeals and Appellate Procedure' 'family Provision Act Applications' 'summary Dismissal' 'mediation']
['equity' 'succession Law' 'civil Procedure'] ['appeals and Appellate Procedure' 'family Provision Act Applications' 'summary Dismissal' 'mediation']

Case Brief

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Procedural Posture

Appeal / Appeal From Associate Judge's Interlocutory Decision (summary Dismissal Motion) to Supreme Court (equity Division) – Determination as to Proper Appellate Path

Legal Issues

  1. 1 ["Whether appeal from Associate Judge's interlocutory refusal to grant summary dismissal in Family Provision Act proceedings lies to a single Judge of the Division or to the Court of Appeal under relevant rules and statutes" 'Proper construction and interaction of Supreme Court Act 1970 s101, s104, Supreme Court Rules 1970 Pt 60 r 17, and Family Provision Act 1982 (NSW) s20']

Ratio Decidendi

By application of Supreme Court Rules 1970 Pt 60 r 17(d), any appeal from a decision of an Associate Judge in Family Provision Act proceedings—including interlocutory refusals of summary dismissal—lies to the Court of Appeal, not to a single Judge of the Division. Therefore, I have no jurisdiction to hear the appeals, and the appeals must be removed to the Court of Appeal in accordance with s51 of the Supreme Court Act 1970.

Court Disposition

Appeal proceedings to be removed to Court of Appeal; orders for costs and mediation made; procedural directions given.

Orders

  • ['Order pursuant to s51(1) of the Supreme Court Act 1970 that the appeal proceedings be removed into the Court of Appeal.' 'Direct defendants to apply to the Registrar of the Court of Appeal for directions on further conduct of appeal proceedings, including for leave to appeal.' 'Order that costs of proceedings...