Boulos v Martin (No 3) - [2012] NSWCA 162

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Boulos v Martin (No 3) [2012] NSWCA 162
Hearing dates: 18 May 2012
Decision date: 18 May 2012
Before: Whealy JA at [1]
Barrett JA at [12]
Tobias AJA at [15]
Decision:
1. Application dismissed.
2. Order that the applicant pay the costs of the respondent.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: INTERLOCUTORY APPLICATION - application to review interlocutory decision dismissing appeal as incompetent - self-represented litigant - District Court Act 1973 (NSW), s 127(2)(c) - Uniform Civil Procedure Rules 2005 (NSW), r 51.22 - no affidavit filed identifying why leave was not required - whether the application should be regarded as competent simply because it was permitted to be filed by the Registrar - Supreme Court Act 1970 (NSW), s 46(4) - no basis to suggest earlier refusal of leave was unreasonable or unjust - application dismissed.
Legislation Cited: - District Court Act 1973 (NSW) - s 127
- Supreme Court Act 1970 (NSW) - s 46(4)
- Uniform Civil Procedure Rules 2005 (NSW) - r 51.22
Cases Cited: Lo v Iverach [2009] NSWCA 92
Category: Interlocutory applications
Parties: Barry Boulos (Applicant)
Dr Peter Martin (Respondent)
Representation: Counsel:
Barry Boulos (in person) (Applicant)
G M Gregg (Respondent)
Solicitors:
Unrepresented (Applicant)
DibbsBarker (Respondent)

File Number(s): 2010/422495

Judgment

WHEALY JA: In this matter Colefax DCJ SC determined to dismiss a Statement of Claim before him on the basis that it was an abuse of process.

Mr Boulos, who was the plaintiff in those proceedings and whom I will call the applicant, filed a Notice of Appeal in the Supreme Court Registry on 23 September 2011. Thereafter, the solicitors for Dr Martin, who was the respondent in the present motion, took objection to the competence of the appeal and thereafter took steps to have the appeal dismissed on the basis that it was incompetent.

It appears that Mr Boulos accepted that this was the situation because thereafter he filed an application for leave to appeal. That application was dismissed by this Court, a two member bench comprising myself and Acting Justice Tobias in March 2012 and this morning on a review application, a motion seeking to challenge the March order was itself dismissed.

Dr Martin's Notice of Motion to dismiss the appeal came on for hearing on 16 April 2012 and the appeal was dismissed by Young JA with costs. Mr Boulos has filed a Notice of Motion of 30 April 2012 which in part seeks this Court constituted as it presently is to review the decision of Young JA.

The question of the competency of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boulos v Martin (No 3)

Details

AGLC: Boulos v Martin (No 3) [2012] NSWCA 162
Case: [2012] NSWCA 162
Decision Date: 18 May 2012

CaseChat Overview and Summary

In *Boulos v Martin (No 3)*, the Supreme Court of New South Wales, Court of Appeal, considered an interlocutory application by a self-represented litigant seeking to review a prior decision that dismissed his appeal as incompetent. The applicant sought to have the earlier decision set aside.

The primary legal issue before the Court was whether the applicant's appeal to the District Court was competent, particularly in light of the failure to file an affidavit explaining why leave to appeal was not required, as stipulated by s 127(2)(c) of the *District Court Act 1973* (NSW) and r 51.22 of the *Uniform Civil Procedure Rules 2005* (NSW). A further issue was whether the Registrar's acceptance of the filing of the application for review was determinative of its competence, and whether the earlier refusal of leave to appeal was unreasonable or unjust.

The Court reasoned that the filing of an application by the Registrar did not render an otherwise incompetent application competent. It was necessary for the applicant to demonstrate that leave to appeal was not required, or to seek leave to appeal, which had not been done. The Court found no basis to suggest that the earlier refusal of leave was unreasonable or unjust, and therefore, the application to review that decision lacked merit.

Consequently, the Court dismissed the application and ordered the applicant to pay the costs of the respondent.

Orders

Orders of the court

1. Application dismissed.

2. Order that the applicant pay the costs of the respondent.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Boulos v Martin (No 3) [2012] NSWCA 162
Hearing dates:	18 May 2012
Decision date:	18 May 2012
Before:	Whealy JA at [1] Barrett JA at [12] Tobias AJA at [15]
Decision:	1. Application dismissed. 2. Order that the applicant pay the costs of the respondent. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	INTERLOCUTORY APPLICATION - application to review interlocutory decision dismissing appeal as incompetent - self-represented litigant - District Court Act 1973 (NSW), s 127(2)(c) - Uniform Civil Procedure Rules 2005 (NSW), r 51.22 - no affidavit filed identifying why leave was not required - whether the application should be regarded as competent simply because it was permitted to be filed by the Registrar - Supreme Court Act 1970 (NSW), s 46(4) - no basis to suggest earlier refusal of leave was unreasonable or unjust - application dismissed.
Legislation Cited:	- District Court Act 1973 (NSW) - s 127 - Supreme Court Act 1970 (NSW) - s 46(4) - Uniform Civil Procedure Rules 2005 (NSW) - r 51.22
Cases Cited:	Lo v Iverach [2009] NSWCA 92
Category:	Interlocutory applications
Parties:	Barry Boulos (Applicant) Dr Peter Martin (Respondent)
Representation:	Counsel: Barry Boulos (in person) (Applicant) G M Gregg (Respondent) Solicitors: Unrepresented (Applicant) DibbsBarker (Respondent)
File Number(s):	2010/422495