Amgad v Cairns

[2022] NSWCA 256

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Amgad v Cairns [2022] NSWCA 256

Hearing dates:

01 December 2022

Date of orders:

01 December 2022

Decision date:

01 December 2022

Before:

Macfarlan JA at [1], [14];
Kirk JA at [10]

Decision:

Dismiss the summons seeking leave to appeal

Catchwords:

APPEAL — application for leave to proceed — adjournment application refused

Legislation Cited:

Limitation Act 1969 (NSW), s 14(1)

Cases Cited:

Amgad v Cairns [2022] NSWCA 101

Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category:

Procedural rulings

Parties:

Jamal Amgad (Applicant)
Stephen William Cairns (Respondent)

Representation:

Counsel:
Applicant (Self-represented)
S W Cairns (Respondent)

Solicitors:
Turnbull Kasif Lawyers (Respondent)

File Number(s):

2022/14115

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

03 December 2021

Before:

Robison DCJ

File Number(s):

2020/144093

EX TEMPORE JUDGMENTS

1. MACFARLAN JA: This is an application for leave to appeal from a decision of Judge Robison in the District Court, the decision being dated 3 December 2021. Before this Court Mr Amgad has represented himself and Mr Cairns, who is a barrister and the respondent, represents himself also. Mr Amgad has made an application for adjournment, which this Court has decided to refuse. To understand the reasons for refusing the application, it is necessary to outline some of the history of the matter.

2. Judge Robison’s judgment was apparently given after a final hearing in the District Court and, although White JA in a previous judgment to which I will later refer, referred to it as involving a summary dismissal, it appears that the decision of Judge Robison was, in fact, a final decision.

3. Mr Amgad filed a summons in this Court on 24 March 2022 seeking leave to appeal. He chose to do that, rather than file a notice of appeal, presumably on the basis that he accepts that he needs leave to appeal because, although the judgment below is a final judgment, he is not in a position to establish that, if successful, he would obtain a judgment from this Court of or in excess of $100,000.

4. On 22 June this year Gleeson JA of this Court delivered a judgment declining to make a pro bono referral in favour of Mr Amgad. His Honour described the proposed appeal as devoid of merit. I have given independent consideration to the materials before us and to Gleeson JA’s judgment and have formed the view that Gleeson JA was correct and that the appeal is, in fact, devoid of merit.

5. On 7 November this year, Mr Amgad, by notice of motion, sought an adjournment of the hearing fixed for today, that is, 1 December, until he could find a legal representative. On 21 November White JA delivered a judgment with full reasons refusing the adjournment. I have mentioned that White JA referred, mistakenly in my view, to the judgment in the District Court being one of summary dismissal but, apart from that, I agree with what his Honour said. Thus, I have given independent consideration to what White JA said and formed the view that his reasons were appropriate in relation to the application then made.

6. Subsequently, Mr Amgad filed a further notice of motion seeking an adjournment of the present hearing. His affidavit of 24 November provided evidence to the same effect as that which was before White JA. In my view, the reasoning and conclusions White JA apply equally in relation to this further application of Mr Amgad.

7. A further event that has occurred since White JA gave his decision is that a communication was received by the Court yesterday from Mr Amgad, which included the statement, “Please pass this email to the judge as I am at Concord Hospital regarding COVID-19. And I suspect not able to come tomorrow and I am not received about any about my notice of motion and affidavit filed on 25 November 2022” [sic]. The reference to a notice of motion was to Mr Amgad’s further notice of motion seeking adjournment of today’s hearing.

8. In response, the Court indicated that Mr Amgad could appear today by AVL or by telephone and provided the links to enable him to do that. We have heard from Mr Amgad by telephone today and he has provided copies of pharmaceutical prescriptions which were given to him when he was discharged after a visit to a hospital yesterday. On their face the prescriptions do not indicate that Mr Amgad has COVID-19 or any condition that would preclude him from appearing and representing himself today. Further, he has been unable to produce any certificate or other evidence to the effect that he has COVID. In his oral submissions, he relied particularly on the evidence that was given before White JA and repeated before this Court that he suffers from mental conditions. Also he asserted, as he did before White JA, that he should be entitled to await a response to his application for Legal Aid.

9. In my view, Mr Amgad has not made out a basis for adjournment, particularly bearing in mind the history that I have described and I refer in particular to the reasons given by Gleeson JA and White JA. So far as the summons itself is concerned, as I have said, I am of the view that the proposed appeal is devoid of merit. In those circumstances, I propose that the summons for leave to appeal be dismissed.

10. KIRK JA: I agree with the reasons and orders proposed by Macfarlan JA and would briefly add the following comments in relation to the substance of the matter. The claims made by the applicant the subject of the decision below relate to work undertaken by the respondent as a barrister for the applicant on two occasions. The first of those was an appearance in this Court on 2 October 2013. The second was a brief appearance at Burwood Local Court on 25 October 2013. As is revealed in the judgment sought to be appealed from, there is an almost complete absence of evidence in support of the allegations of negligence and broader allegations of wrongdoing made against Mr Cairns. There is no basis found in the evidence to support the allegations made.

11. Secondly, and in any event, this appears to be a case directly covered by advocates immunity, noting that the work complained of undertaken by the respondent was work directed towards judicial determination of proceedings: see Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16.

12. Thirdly, as was noted by Gleeson JA in the judgment earlier referred to, it appears that the claims were, in any event, statute barred: Amgad v Cairns [2022] NSWCA 101 at [19]. The proceeding below was filed on 12 May 2020, some six and a half years subsequent to the appearances in question. So far as can be discerned from materials, it seems that actual damage is claimed to have been suffered by the applicant on each of those two occasions. In those circumstances, the cause of action would have accrued some six and a half years earlier than when the matter was filed. The matter is, thus, statute barred pursuant to s 14(1) of the Limitation Act 1969 (NSW).

13. As this Court has said many times, generally speaking it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment going beyond what is merely arguable: see, eg, The Age Company Ltd v Liu (2013) 82 NSWLR 268 at 274; [2013] NSWCA 26 at [13]. No issue of public importance or matter of principle is raised by this application and it is absolutely clear, in my view, that it has not been established that there is any injustice going beyond what is merely arguable. Indeed, there is good reason to think there is no injustice that has been suffered at all. For those reasons, along with those given by the presiding judge, in my view, leave should be refused.

14. MACFARLAN JA: The Court’s order is that the summons seeking leave to appeal is dismissed.

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Amendments

23 January 2023 - 23/01/2023 - spelling of respondent's middle name corrected from "Williams" to "William" on coversheet.

Decision last updated: 23 January 2023