Gundowda Pty Ltd v Gray [1968] HCA 47

Gundowda Pty Ltd v Gray [1968] HCA 47

The order of Lee J. was not a final order within s. 35 of the Judiciary Act 1903-1965 Cth, so the appeal lodged as of right was incompetent. Leave to appeal was refused because s. 12 (2) of the Prickly-pear Act, 1924-1964 N.S.W., on its plain construction, made the relevant moneys repayable by the applicant owner and contemplated recovery by the Commissioner.

Jurisdiction
Australia
Procedural Posture
Application for Leave to Appeal and Appeal Lodged as of Right / High Court Objection to Competency and Application for Leave to Appeal
Outcome
Objection to competency upheld and application for leave to appeal refused in each case with costs.
Legal Topics
['competency of Appeal' 'final Order' 'leave to Appeal' 'recovery of Prickly Pear Eradication Costs']
['civil Procedure' 'statutory Interpretation'] ['competency of Appeal' 'final Order' 'leave to Appeal' 'recovery of Prickly Pear Eradication Costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Lodged as of Right / High Court Objection to Competency and Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the order of Lee J. was a final order within the meaning of s. 35 of the Judiciary Act 1903-1965 Cth.' 'Whether s. 12 (2) of the Prickly-pear Act, 1924-1964 N.S.W. gave the Commissioner a cause of action to recover money from the applicant as owner of land from which prickly-pear was eradicated.']

Ratio Decidendi

The order of Lee J. was not a final order within s. 35 of the Judiciary Act 1903-1965 Cth, so the appeal lodged as of right was incompetent. Leave to appeal was refused because s. 12 (2) of the Prickly-pear Act, 1924-1964 N.S.W., on its plain construction, made the relevant moneys repayable by the applicant owner and contemplated recovery by the Commissioner.

Court Disposition

Objection to competency upheld and application for leave to appeal refused in each case with costs.

Orders

  • ['Objection to competency upheld.' 'Appeal lodged as of right dismissed with costs as incompetent.' 'Application for leave to appeal refused with costs.']