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

1. 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.

1. 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.

1. 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.

1. 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.

1. The question of the competency of the appeal may, on one view of it, turn on whether the order made by Colefax DCJ was an interlocutory or final order. It is clear, of course, that leave to appeal is required from an interlocutory order. However, assuming that the order was a final one, the question of the need for leave then arises under s 127 of the District Court Act 1973 (NSW) and that section, to which we directed Mr Boulos' attention a short time ago, provides that:

"A party who is dissatisfied with a Judge's judgment or order in an action may appeal to the Supreme Court."

1. Subsection (2), however, makes it clear that leave to appeal from the Supreme Court is required in:

"(c) An appeal from a final judgment or order, other than an appeal:

(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more."

1. It is necessary to refer also to r 51.22 of the Uniform Civil Procedure Rules 2005 (NSW). This rule applies if an appeal as of right is "restricted by any Act by reference to a specified amount or value". In such a situation, the rule requires that the appellant must, on filing the Notice of Appeal or cross appeal, file and serve on each necessary party an affidavit that identifies the nature of the restriction and sets out the material facts on which the appellant relies to show that the restriction does not apply.

1. Mr Boulos' Notice of Appeal was not accompanied by such an affidavit. However, Mr Boulos has made it clear to the Court today that he does not maintain that his claim in the District Court, had it been allowed to continue, would have been a claim for $100,000 or more. He accepts that it would have been a claim that earned damages and expenses of an amount of money less than $100,000.

1. Confronted with this obviously difficult situation, Mr Boulos has argued that the Court ought in fairness treat the appeal as competent because it was permitted to be filed by the Registrar even though the value of the claim in the Court below was less than the requisite amount.

1. Secondly, he argues that having been allowed to file the appeal, it would be unfair to him and offend the dictates of justice if he were not allowed to maintain it as an appeal as of right. In my opinion, the Registrar had no obligation to check the competency of the appeal upon the filing of the document. The very purpose of r 51.22 is that the onus falls on the applicant to file an affidavit to demonstrate that leave is not required and that was not done here. As I have said earlier, the evidence before us shows that Dr Martin's lawyers took immediate objection to the appeal's competence and soon thereafter took steps to have the appeal dismissed as incompetent.

1. In my view, in the circumstances I have outlined, it has not been demonstrated that Justice Young's order was incorrect or that it ought to be varied, set aside or discharged. Accordingly, I propose that so much of the Notice of Motion filed by Mr Boulos as seeks to set aside Justice Young's order be dismissed.

1. BARRETT JA: I agree with the presiding judge and would add only this. The application in respect of the order of Justice Young is necessarily brought under s 46(4) of the Supreme Court Act 1970 (NSW). The approach to be taken under that section was described in Lo v Iverach [2009] NSWCA 92 at [29] which I incorporate by reference in these oral reasons.

1. Mr Boulos in the course of his submissions has not shown any basis on which it could conceivably be said that Young JA acted on a wrong principle or by reference to extraneous or irrelevant matters, or upon a mistake of fact or in disregard of some material consideration, nor has anything been put that could conceivably lead to a conclusion that his Honour's decision was unreasonable or plainly unjust. The question before Justice Young was purely and simply one of how to dispose of an appeal requiring leave to appeal where leave had been sought and expressly refused.

1. The position at this point is that the refusal of leave to appeal stands by virtue of the decision of Justice Whealy and Acting Justice Tobias earlier today. It is entirely consistent with that that the earlier outcome before Justice Young should not be disturbed and that this Court's discretion should be exercised in favour of leaving the orders of Justice Young untouched.

1. TOBIAS AJA: I agree with the orders proposed by the presiding judge for the reasons he has expressed. I also agree with the additional remarks of Barrett JA.

1. WHEALY JA: That leaves us only with one matter to conclude with today and that is the part of the motion that seeks to review the decision by Macfarlan JA. You would accept I think Mr Boulos that since we have refused leave today and we have dismissed the appeal as incompetent, that there really is no utility in examining any further Macfarlan JA's order.

[Discussion]

1. WHEALY JA: The final order therefore the Court will make is that in dismissing the motion today the Court orders that the applicant pay the respondent's costs.

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Decision last updated: 12 June 2012