Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Menzies Lord Wheatley	[2013] CSIH 66 XA114/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the motion by the applicant MBR Applicant; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______

Act: Bovey QC, McGuire; Drummond Miller LLP

Alt: Drummond QC, JNM MacGregor; Office of the Advocate General

17 May 2013

Background

[1] This is an application in the following terms:

"... to hold [the procedural judge's] interlocutor of 12 February 2013 pro non scripto and, in any event, for determination of the application for leave by a quorum of three judges of the Inner House".

[2] The background is that the applicant is an Iranian national, who originally claimed asylum on or about 1 September 2008. The respondent rejected his claim on the basis that it was not credible. An appeal against that determination was refused by an Immigration Judge (Hamilton) on 19 November 2008. The reasoning in the appeal was also that the applicant was not considered credible, especially in relation to his account of being involved in a protest as an employee at a tyre factory. The applicant attempted to make "fresh" claims in both 2009 and 2010. These were both unsuccessful, but a judicial review by the Court of Session resulted in a remit to the respondent for reconsideration.

[3] On 19 February 2011, the applicant's claim was once again rejected on credibility grounds. An appeal against that decision was heard by a different Immigration Judge (Forbes) in June 2011. The contention for the applicant was essentially that he had been entitled to have his original asylum interview by the respondent's officials audio recorded (Dirshe v Secretary of State for the Home Department [2005] 1 WLR 2685). The failure to do so had resulted in procedural unfairness and, by analogy with certain criminal precedent concerning the need for legal advice prior to police interviews (Cadder v HM Advocate 2011 SC (UKSC) 13), evidence of the interview ought to have been excluded from consideration. This argument was rejected, partly because the Immigration Judge took the view that applications for international protection required to be treated in an "holistic" fashion (Determination, para 28). In order for the application for asylum to be considered by the respondent in the first place, the applicant required to assist in establishing facts to support his claim. Even if the evidence of the interview would have been excluded as unfairly obtained in a criminal court, the Judge held that the provisions of paragraph 51(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 permitted its admission in the tribunal setting.

[4] The applicant appealed that decision to an Upper Tribunal. At that stage however, counsel for the applicant did not advance any of the grounds of appeal based upon the absence of an audio recording or analogy with criminal precedent. Rather, two new submissions were advanced. The first was that, contrary to the Immigration Judge's view, rule 51(1) of the 2005 Rules actually assisted the applicant, albeit that it seemed permissive rather than exclusionary in nature. The submission was that the rule entitled a tribunal to discount evidence altogether, on the grounds of unfairness. The Upper Tribunal held that the tribunal had no jurisdiction to do this. A second submission, which was advanced as a refinement of that based on the criminal law analogy, was that no reasonable immigration judge could have placed any weight on the content of the interview, standing the absence of an audio recording and, in addition, the references in the interview to the applicant feeling unwell. The appeal was refused. The Upper Tribunal held that there had been no unfairness as would have justified excluding consideration of the interview.

[5] The applicant applied to the Upper Tribunal for leave to appeal to the Court of Session. This was refused on 29 May 2012, with the Tribunal noting that the grounds of appeal all related to the absence of an audio recording, which had been the subject of the appeal to the Immigration Judge (Forbes), rather than any issue arising out of the fresh claims. The Tribunal considered that the grounds of appeal were misconceived, in so far as they suggested that evidence of the interview ought to have been excluded. The applicant had not said that the interview had been unfair or even that the evidence of the interview had been in any way inaccurate.

[6] The applicant applied to the Court of Session for leave to appeal, essentially on the same grounds as had been presented to the Upper Tribunal. It is with the competency of the decision on that application by a procedural judge of the Inner House that this application is concerned.

The Rules of Court

[7] The power of the Court of Session to regulate its own procedure is consolidated by section 5 of the Court of Session Act 1988. The section provides that the Court has power, by Act of Sederunt:

"(a) to regulate and prescribe the procedure and practice to be followed in various categories of causes in the Court ... whether originating in the said court or brought there by way of appeal ...".

There is a specific power, which was introduced into section 5 by the Judiciary and Courts (Scotland) Act 2008 (section 46(3)), as follows:

"(ba) to make provision as to the quorum for a Division of the Inner House considering solely procedural matters ...".

Otherwise, section 2(4) of the 1988 Act prescribes that "the quorum for a Division of the Inner House shall be three judges".

[8] The background to the 2008 amendment, quantum valeat, was a concern amongst the judiciary that "procedural matters including the question of the competency of an appellate cause" required a full quorum of three (Policy Memorandum to the 2008 Bill, para 105). This had flowed from Lord Penrose's first Review of Inner House Business in 2006. The Bill, as originally framed, had permitted the court to fix the quorum generally for all categories of Inner House business. However, it was thought by Parliament's Justice Committee that this was going too far and that the power should be limited to "solely procedural matters" (amendment 46). In the debates, it is tolerably clear that Parliament had in mind that an application for leave to appeal, which it noted was a particular concern of the judiciary, fell into the category of "procedural matters" (see eg Pauline McNeill MSP, Justice Committee, 10 June 2008).

[9] In his second Review in 2009, Lord Penrose recommended (para 6.7) that the new power in section 5(ba) be applied to reduce the quorum required at all of the stages in the appellate process up to (and including) the point at which a final hearing was appointed to dispose of the merits of an appeal. His proposed rules, which were duly subjected to consultation through the Rules Council, resulted in Chapter 37A of the Rules of Court being introduced in 2010, whereby:

"37A.1.(1) In relation to such procedural business of the Inner House as is specified in paragraph (2), the quorum of a Division of the Inner House shall be one judge.

(2) The procedural business mentioned in paragraph (1) is such business as arises under -

...

(d) an appeal to the court under Chapter 41 (appeals under statute);

...

(ii) in the case of an appeal under Part III of that Chapter (appeals in Form 41.25), up to and including the procedural steps mentioned in rule 41.32(2)".

Rule 37.A.2 created the rôle of "procedural judge" of the Inner House. The procedural steps mentioned in RCS 41.32(2) are those taken at a procedural hearing, prior to the appointment of the appeal to a hearing on the Summar Roll or Single Bills.

[10] The current form of RCS 41.3, which was introduced in 2011, is headed "Determination of applications for leave to appeal". It provides that any such application shall be brought before a procedural judge on the first available day after it is lodged so that appropriate orders for service on interested parties may be made. The rule allows such parties to lodge answers. Thereafter it continues as follows:

"(6) ... the applicant may apply by motion to a procedural judge for the application to be granted".

The rule goes on to stipulate the procedure which is to follow in the event of leave being granted or refused.

The procedure followed

[11] In terms of RCS 41.3, the applicant's application for leave to appeal was brought before a procedural judge, who made the appropriate order for service, on 24 July 2012. There then followed a significant delay before the applicant enrolled to appoint the application, and the answers thereto, to a hearing on the Single Bills. By interlocutor dated 4 January 2013, the court appointed the application and answers to be heard "before a procedural judge" on 12 February. This procedure was in line with the terms of RCS 41.3(6) (supra) and no objection was proffered by the applicant to the terms of the interlocutor. On 12 February 2013, the hearing, which lasted in the region of two hours, took place following upon the previous lodging of written submissions. At no time prior to or during the hearing before the procedural judge was any point taken about the competency of a single judge determining the application. At the conclusion of the hearing, the procedural judge refused the application for leave to appeal. In so doing, he applied the well-known test in Hoseini v Secretary of State for the Home Department 2005 SLT 550 of whether the grounds of appeal had any real prospects of success or there was some other compelling reason why the appeal should be heard. The procedural judge did not consider that the grounds of appeal, which had been advanced, were competent given the terms of section 13(1) of the Tribunals, Courts and Enforcement Act 2007, which restricts appeals from the Upper Tribunal to the court to those raising "any point of law arising from a decision made by the Upper Tribunal". He reasoned that no point of law arising from the Upper Tribunal's decision had been raised given that all of the points, which were sought to be raised in the appeal to the court, had not been pursued by the applicant before the Tribunal. The appeal was not therefore one "arising from" a Tribunal decision.

[12] Notwithstanding the failure to take any point concerning competency at the time, the applicant enrolled the present motion several weeks after the procedural judge's refusal of leave. Because of the unusual nature of the motion, coming after what appeared to have been a determination of the issue in terms of the rules, and given the fact that there have been many applications for leave to appeal determined by a procedural judge in a similar manner, the applicant was asked to provide a note, setting out the basis upon which the motion was presented. That having been done, the court, sitting with a quorum of three, agreed to hear the applicant's contentions as a matter of some urgency since there are many other applications for leave pending before the Inner House.

Submissions

Applicant

[13] The applicant maintained, first, that the Rules of Court did not entitle a single procedural judge to refuse leave to appeal. It was not contended that RCS 41.3 was ultra vires section 5(ba) of the Court of Session Act 1988 (supra). Rather, it was said that, because section 2(3) of the 1988 Act provided that a quorum of a Division was three judges, this meant that RCS 41.3 could not be interpreted as meaning that the court, which was not composed of a quorate Division, could refuse leave. The terms of the rule had to be read so as to be intra vires the enabling legislation. If RCS 41.3 were read in this way, it could be seen that RCS 37A did not apply at the stage of an application for leave to appeal, albeit that the terms of RCS 37A.1.(2)(d)(ii) made it applicable in relation to appeals, for which leave had been granted, up to the stage of the appointment of the appeal itself to a hearing on the Summar Roll or Single Bills (see supra).

[14] The second and related submission was that the 1988 Act, and the rules made under it, did not permit a procedural judge to make decisions, such as the grant of leave to appeal, which were not solely procedural in nature. The refusal of leave was a decision on the merits of the case and therefore not procedural (Currie, Petitioner 2010 SLT 71, Lord Hodge at paras [5]-[8]; KP v Secretary of State for the Home Department [2012] CSIH 38, Lord Eassie at paragraph [23]; Robertson v Robertson's Ex 1991 SC 21, LP (Hope) at 23-24; and Davies v Scottish Commission for the Regulation of Care [2013] UKSC 12, Lord Hope at para 45). The general terms of section 5(a) of the 1988 Act were insufficient to enable the court to make a provision reducing the statutory quorum of a Division (see Taylor v Marshalls Food Group 1998 SC 841). The only potentially relevant provision was section 5(ba).

[15] Thirdly, it was said that, in refusing leave, the procedural judge had not made a decision of a procedural nature and therefore his interlocutor was fundamentally flawed. The procedural judge had refused leave to appeal on the basis that the original points of appeal to the Upper Tribunal had been abandoned. That was, of itself, a decision on the merits. In fact, the Tribunal had decided the merits of these points, as well as the additional grounds presented at the hearing. In terms of R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, these points were still live before that Tribunal and remained live before the procedural judge. The procedural judge had also taken the view, as a "fall-back" position, that there was no real prospect of success on the merits of the appeal. His determination was therefore a decision on these merits.

[16] Fourthly, the applicant maintained that the court could competently "recall" the interlocutor of the procedural judge (Hoekstra v HM Advocate (No. 2) 2000 JC 391 LJG (Rodger) at paragraph [17]). Notwithstanding the terms of RCS 4.16A(5), the court was entitled to "correct" or "alter" the interlocutor of the procedural judge. The court could, using its inherent powers, correct fundamentally flawed interlocutors (Laing v Scottish Arts Council 2001 SC 493; McFarlane v Scottish Borders Council 2006 SLT 721; Bailey, Petitioners 1969 SLT (notes) 70; Rottenburg v Duncan (1896) 24 R 35; and McChesney v Harper 1993 SCLR 170, Lord Caplan at 172). The inherent jurisdiction of the court, in this regard, had been confirmed in Tonner v Reiach & Hall, 2008 SC 1 (Lord Abernethy at para [46]). It was accepted that the jurisdiction to do so was an equitable one. In that connection, it could not be said that the failure of the applicant to take the point of competency before the procedural judge had amounted to waiver. Although the applicant had been represented by senior counsel before the procedural judge, senior counsel had not been instructed, nor had he focussed, upon the competency of a single procedural judge hearing the application for leave in the first place. It was only two weeks or so later that he had received instructions from law agents to consider this point.

Respondent
[17] The respondent countered that the arguments which the applicant had put forward to challenge the procedure adopted were academic. Before the Upper Tribunal the applicant's counsel had abandoned all of the grounds which were now presented to the court as a basis for the grant of leave to appeal. The procedural judge had refused leave because these grounds had not been argued and were therefore not points of law arising from a decision made by the Upper Tribunal. Even if that had been the wrong approach, the allowance of grounds, which had previously been abandoned, would require the court to exercise a discretion to permit them to be argued and no basis had been identified as to why any discretion should be exercised in favour of the applicant. Whether the application for leave were to be determined by a single procedural judge, or a quorum of three, it still did not identify any relevant error of law.

[18] The applicant had provided no legal basis or authority for seeking to have the interlocutor treated as "pro non scripto". The grounds for correcting or altering an interlocutor were limited in terms of RCS 4.15, 4.16 and 4.16A. The power permitted alteration only to bring an interlocutor into line with the court's original intention by, for example, correcting errors, removing ambiguities or clarifying what the court had intended to say. Any alteration could not depart from what the court had intended to do at the time the interlocutor had been pronounced (Laing v Scottish Arts Council (supra) at para [14]; Macfadyen ed: Court of Session Practice, para K [41]). The interlocutor complained of did not contain any mistake, clerical error or omission. If the applicant had wished to take issue with the competency of the procedural judge determining the application, he should have done so at the time of the hearing. The interlocutor contained a decerniture and required to be treated as final. It could not be revisited by this court (Maclaren: Court of Session Practice 1095; McFarlane v Scottish Borders Council (supra), Lady Smith at para [17]).

[19] RCS 41.32(2) made provision for what a procedural judge could do at a procedural hearing. Every step in the procedure up until the procedural hearing, including the initial application for leave to appeal, could be dealt with by the procedural judge (RCS 37A.1.(1)). RCS 41.3(6), was clear in that it allowed the procedural judge to make the decision on an application for leave to appeal. Such a matter was properly classified as a procedural decision. The essential question before the court, at the stage of determining leave, was whether the appeal had a real prospect of success (Hoseini v The Secretary of State for the Home Department (supra), Lord President (Cullen) at para [5]). This could entail a broad consideration of the merits of the application in order to determine whether the appeal ought to be filtered out as unmeritorious. However, this did not involve a determination of whether the appeal would succeed. It was overly simplistic to suggest that the limited consideration of the merits under the Hoseini test had transformed a decision on the procedural requirement to obtain leave, before an appeal were determined on its merits by a quorum of three, into a substantive determination. If the applicant's contention were correct, there would be little or no merit in having a requirement for leave, as both the leave stage and the subsequent determination, were leave to be granted, would both be hearings on the substantive merits of the case. The leave stage would in effect be rendered practically pointless.

[20] A number of procedural decisions taken by courts did involve some degree of assessment of the merits. For example, this was done in considering an application for leave to appeal out of time. In Lord Advocate v Mirrielees Trustees 1945 SC (HL) 1, Lord Thankerton (at 14) had endorsed the view of Lush LJ in Poyser v Minors (1881) 7 QBD 329 (at 333) that the word "practice" denoted the mode of proceeding by which a legal right was enforced, as distinct from the law which gave or defined the right. The substantive right here was to appeal on a point of law arising out of the Upper Tribunal's decision. Leave had to be granted before that right could be invoked. That decision was a purely procedural one. It did not determine the merits and did not restrict the substantive right of appeal. The present case was readily distinguishable from KP (supra) in which former RCS 41.59 was declared ultra vires. The relevant rules had been lawfully introduced in exercise of the powers contained under section 5 of the 1988 Act. If there were any doubt about the vires, the Parliamentary material (supra), notably the clear statements made during the course of the passing of the Bill, could be considered (Pepper v Hart [1993] AC 593).

Decision

[21] The first question is whether the court can hold the interlocutor of 12 February 2013 as pro non scripto (ie as if it had never been written). This power, which is undoubtedly occasionally used in practice, is one which is confined to a very restricted category of situations (see generally Lees: Interlocutors (2^nd ed) 35). It is a course which is normally only adopted of consent of the parties (Rottenburg v Duncan (1896) 24 R 35) or where it is instantly verifiable that an interlocutor has been pronounced as a result of a clear error on the part of the court induced by a party (Harvey v Lindsay (1875) 2 R 980). The commonest example of the use of this power is where there has been a fundamental procedural or similar irregularity prior to the interlocutor being pronounced, such as a lack of proper intimation of the motion upon which the interlocutor was based (see Lord Carloway: Decrees and Interlocutors at para [41]-[200] in Macfadyen ed: Court of Session Practice; McChesney v Harper 1993 SCLR 170, Lord Caplan at 171; cf Bailey, Petitioners 1969 SLT (notes) 70). It is a course which, as a practical expedient not formally recognised in the Rules of Court, avoids the need for an appeal, or other competent mode of review, in circumstances where such an appeal or review would inevitably succeed. However, it is also a course which can only be taken by the judge who has pronounced the interlocutor in the first place. For obvious reasons, judges cannot simply declare the interlocutors of other judges as never having been written.

[22] Perhaps recognising the difficulty of invoking this particular power, because of the very restricted circumstances in which an interlocutor can, almost in passing, be treated as effectively cancelled, the applicant founded in submissions upon the terms of the Rules of Court which permit interlocutors to be corrected or altered "on cause shown" (RCS 4.15(6), 4.16(7), 4.16A(5)). The contention was that such correction or alteration permitted the deletion of an entire interlocutor. However, these rules have, as their origins, the practice that a "mistake, clerical error, or omission" in an Inner House interlocutor (or an Outer House one with consent) may be corrected de recenti (Maclaren: Court of Session Practice 1096; see Lord Deas on this "immemorial practice" in Harvey v Lindsay (supra) at 982). There are two critical points to notice, both of which are fatal to the applicant's motion in this context. First, the power to correct is available, in the case of an interlocutor of a procedural judge, only to the judge who has signed the interlocutor, except in certain circumstances which do not apply here (RC 4.16A(5)). Secondly, the power is for use in order "to bring an interlocutor into line with the court's original intention" and thus also to cure any clerical error or ambiguity (Laing v Scottish Arts Council 2001 SC 493, Lord Prosser at para [14]). It cannot be used to depart from what the court was trying to say when it issued the interlocutor (Laing op cit). What the applicant is essentially attempting to do is to cancel an interlocutor pronounced by an Inner House procedural judge. While a motion to alter is competent, it is not competent for this court to make any alteration using this procedure and there is no basis, in any event, for doing so.

[23] The second question is whether it is competent for the court to revisit the interlocutor of 12 February 2013, which is one formally recording a decision of the Inner House, albeit that the hearing took place before a single procedural judge. Section 39 of the Court of Session Act 1988 provides:

"The judgment pronounced by the Inner House shall in all causes be final in the Court".

That section is determinative of this question once it is appreciated that the interlocutor of the procedural judge is an Inner House judgment. The procedural judge has refused the applicant leave to appeal. His judgment is, by virtue of section 39, final. It is, in its terms, a decerniture and such an interlocutor is, for reasons surrounding the need for finality and certainty in litigation, not open to reconsideration in this process (cf reduction). In that regard, the court endorses the views of Lady Smith to that effect in McFarlane v Scottish Borders Council 2006 SLT 721 (at para [17]).

[24] It is not without importance that, had the applicant considered that a single judge of the Inner House could not competently deal with his application, he could have, indeed ought to have, taken issue with the preceding interlocutor of 4 January. He did not do so, but rather acquiesced in the procedure appointed. Nor did the applicant raise the matter before the procedural judge at the hearing on 12 February. At any stage, he could have requested that his application be dealt with by a quorum of three (see 1988 Act s 36 and RCS 37A.2(3)). His failure to take any objection to the jurisdiction of the single judge amounted to a waiver of any objection to the competency of the procedure (see eg Hill v Black 1914 SC 913). Were it to be otherwise, a party would be enabled to keep any plea to the competency in his pocket, await the outcome of the decision and thereafter challenge any adverse decision on the basis of a point not advanced before the judge. Although there may be scope for raising new matter in the context of a competent appeal or other form of review, that is entirely different from asking the same court to reverse its own decision because a party has thought of some new ground of challenge after the decision has been taken. The court does not consider that the applicant's senior counsel's protestations of prior ignorance of the point are either relevant or convincing. When counsel is instructed to appear at any hearing, consideration of the competency of that hearing ought, it may be thought, to be uppermost in any legal analysis of a party's position.

[25] Even if the failure to raise the point with the procedural judge, or to challenge the earlier interlocutor, did not amount respectively to waiver or acquiescence, in determining whether to hold the interlocutor, or rather interlocutors, as pro non scripto or to alter or correct them, the court would have considered that the lack of objection and challenge were such that it would have been bound to refuse the application on the basis that the equities ran contrary to the applicant's position.

[26] In order to avoid the obvious consequences of finality, the applicant resorted to cases decided by the High Court of Justiciary, notably Hoekstra v HM Advocate (No 2) 2000 JC 391. The court does not consider that a comparison with the criminal jurisdiction of the High Court is useful, partly because of the differences in the availability of remedies in the appeal and review of civil and criminal appellate decisions. However, a significant feature of Hoekstra was that the appeal was still live. The court had not determined it, even if some of the grounds had been considered and rejected. There was therefore no interlocutor such as would have precluded review in terms of the finality provision in section 124 of the Criminal Procedure (Scotland) Act 1995 (cf Beck, Petitioner 2010 SCCR 222).

[27] RCS 41.3 is not challenged as ultra vires the terms of section 5(ba) of the 1988 Act. The contention was that it must be read in the light of section 2(3) of the 1988 Act as meaning that a quorum of three is still required to refuse leave to appeal. The court is unable to sustain this submission. RCS 41.3 is clear in its meaning. It provides that the method of proceeding with an application for leave to appeal is for the applicant to "apply by motion to a procedural judge for the application to be granted" (RCS 41.3.(6)). The only interpretation to be placed upon the rule, which then continues by stating what is to occur if the motion is granted or refused, is that the decision is to be made by a procedural judge alone, unless he decides to remit it to a larger bench (supra). This is the interpretation which affords the words their plain and ordinary meaning in the statutory context in which they are expressed. There is no ambiguity. Indeed, this no doubt explains why the rule has been in force for well over a year and applied in a consistent manner without objection. In the absence of a successful challenge to the existence of the rule itself, decisions on leave to appeal are competently placed before, and decided by, a single procedural judge of the Inner House.

[28] Were there to have been any ambiguity in interpretation, the court would have had little hesitation in construing the rule in the same manner. The mischief which the rule was designed to address was the need for three judges to consider the issue of leave and thereafter for the same or another bench of three judges to consider the merits of the appeal itself. The duplication of effort was such that a practice had grown up whereby an application for leave was not even determined in limine but remitted to a Summar Roll hearing months, and sometimes years, after the application had been lodged. The application was heard by a Division at the same time as the merits of the appeal itself; thus defeating the purpose of having a system of leave to appeal in the first place. The concern of the judiciary in that regard was raised with Parliament. The Parliamentary papers and other materials presented to the court reveal that, as a consequence of noting judicial concern, Parliament had in mind that the grant or refusal of leave to appeal was a procedural matter such as could be dealt with by a reduced quorum of the Inner House.

[29] Although RCS 41.3 is not itself challenged, the applicant maintained that a decision on leave to appeal was not a decision which is procedural in nature in terms of RCS 37A.1.(2) or, indeed, section 5(ba) of the 1988 Act. In the absence of a challenge to RCS 41.3, this does not appear to be of great moment given the express power conferred by that rule on procedural judges to deal specifically with applications for leave to appeal. However, the court considers that a decision on whether to grant leave to appeal is solely a procedural one. It is, after all, a determination only of whether an appeal is to be allowed to "proceed". It does no more than that. Although, as in many procedural applications, some consideration may be given to the strength of the merits of the grounds of appeal, the court does not determine these merits when granting or refusing leave. It simply decides, in terms of the test in Hoseini v Secretary of State for the Home Department 2005 SLT 550, whether the grounds have a real prospect of success or there is some other compelling reason for the appeal to be heard.

[30] Procedure, as was said in Poyser v Minors (1881) 7 QBD 329 (Lush LJ at 333):

"denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding the Court is to administer the machinery as distinguished from its product".

As it might also be said (Walker: Oxford Companion to Law 1001"Procedure"):

"[Procedure] encompasses all the steps to be taken in initiating and carrying through a legal claim or other proceeding from framing the writ, petition, or other means of initiating the claim, to final judgment".

Put more simply (Lexis Nexis: Words and Phrases Legally Defined 580 "Practice and Procedure", under reference to White v White [1947] ALR 342 at 344), procedure:

"comprehends all steps necessary to be taken in litigation for the establishment of a right in order that the right may be judicially recognised".

Obtaining leave to appeal is a procedural step which is required as part of the process of an appeal en route from a decision of an inferior court or tribunal to the final judgment of the superior or appellate court. It is a solely procedural matter which, under the new Rules of Court prompted by the recognised need for reform, can be determined by a procedural judge. Given that his decision will normally have followed upon an earlier consideration of leave by the inferior court or tribunal, this second opportunity to seek leave provides a reasonable balance in civil procedure between the need for justice in an individual case and the necessity of having an efficient system which provides justice for all.

[31] For all of the foregoing reasons, the application is refused.