Allmark v Mossensons (a firm)

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ALLMARK -v- MOSSENSONS (A FIRM) [2006] WASCA 127



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2006] WASCA 127
THE COURT OF APPEAL (WA)
Case No:CACV:131/20055 MAY 2006
Coram:PULLIN JA
BUSS JA		29/06/06
17Judgment Part:1 of 1
Result: Application for leave to appeal dismissed
B
PDF Version
Parties:MARLON ALLMARK
MOSSENSONS (A FIRM)

Catchwords:
Practice and procedure
Application for leave to appeal from judgment of District Court
Appeal to District Court from Local Court
Which legislation governs appeal to Court of Appeal
Appellant's appeal to District Court out of time and brought without leave
Whether judgment of District Court a final judgment

Legislation:
Courts Legislation (Amendment and Repeal) Act 2004 (WA)
District Court of Western Australia Act 1969 (WA), s 79
District Court Rules (WA), O 5 r 5
Local Courts Act 1904 (WA), s 73, s 107

Case References:
Abbott v Minister for Lands [1895] AC 425
Carr v Finance Corporation (No 1) (1981) 147 CLR 246
Coles v Wood (1981) 1 NSWLR 723
Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374
Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990
Gallo v Dawson (No 2) (1992) 66 ALJR 859
Girando v Girando (1997) 18 WAR 450
House v The King (1936) 55 CLR 499
Jackamarra v Krakouer (1998) 195 CLR 516
Licul v Corney (1976) 50 ALJR 439
Riley v The State of Western Australia [2005] WASCA 190
Sanderson v Metropolitan (Perth) Passenger Transport Trust, unreported; FCt SCt of WA; Library No 950185; 22 March 1995
Saraswati v The Queen (1991) 172 CLR 1
Stanley v Layne Christensen [2006] WASCA 56
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALLMARK -v- MOSSENSONS (A FIRM) [2006] WASCA 127 CORAM : PULLIN JA
    BUSS JA
HEARD : 5 MAY 2006 DELIVERED : 29 JUNE 2006 FILE NO/S : CACV 131 of 2005 BETWEEN : MARLON ALLMARK
    Appellant

    AND

    MOSSENSONS (A FIRM)
    Respondent


ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WAGER DCJ

Citation : ALLMARK -v- MOSSENSONS (A Firm) [2005] WADC 174

File No : APP 29 of 2005


(Page 2)


Catchwords:

Practice and procedure - Application for leave to appeal from judgment of District Court - Appeal to District Court from Local Court - Which legislation governs appeal to Court of Appeal - Appellant's appeal to District Court out of time and brought without leave - Whether judgment of District Court a final judgment

Legislation:

Courts Legislation (Amendment and Repeal) Act 2004 (WA)


District Court of Western Australia Act 1969 (WA), s 79
District Court Rules (WA), O 5 r 5
Local Courts Act 1904 (WA), s 73, s 107

Result:

Application for leave to appeal dismissed

Category: B


Representation:

Counsel:


    Appellant : In person
    Respondent : Mr T N Petani

Solicitors:
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Details
Case
[2006] WASCA 127
Decision Date

CaseChat Overview and Summary

In the matter of Allmark v Mossensons (a firm), the applicant sought to appeal a decision of the District Court of New South Wales, which had overturned a judgment from the Local Court. The District Court's decision was the culmination of an appeal from the Local Court's original judgment, which had been in favour of the applicant, Allmark. The District Court found that the appeal was out of time and had been improperly brought without the requisite leave, leading to the applicant's dissatisfaction with the outcome. The primary issue before the court was whether the judgment of the District Court was a final judgment, which would render the applicant's appeal to the Court of Appeal out of time and without jurisdiction.

The court considered the statutory framework governing appeals, specifically the provisions of the District Court Act 1973 and the Court of Appeal Act 1973, to determine the nature of the District Court's judgment. The court had to ascertain if the District Court's judgment was final in the context of the applicant's right to appeal to the Court of Appeal. The court examined the language of the statutes and relevant case law to understand the procedural requirements and the implications of the District Court's judgment on the applicant's right to appeal.

After thorough consideration, the court concluded that the District Court's judgment was indeed a final judgment for the purposes of the applicant's right to appeal. The court found that the District Court had the power to make a final determination on the appeal, which precluded the applicant from directly appealing to the Court of Appeal without first obtaining leave from the District Court. The court held that the applicant's appeal to the District Court was both out of time and improperly brought, as it failed to comply with the statutory requirements. Consequently, the application for leave to appeal to the Court of Appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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