Dokas v Gallagher (No 2)

Case [2024] NSWCA 236


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Dokas v Gallagher (No 2) [2024] NSWCA 236
Hearing dates: 23 September 2024
Date of orders: 25 September 2024
Decision date: 25 September 2024
Before: Kirk JA; Griffiths AJA
Decision:

Dismiss the summons filed on 26 July 2024, with costs.

Catchwords:

APPEALS — Leave to appeal — Where statutory right to appeal confined to “a question of law” — Where applicants contend that the application for leave to appeal is brought under “a question of fact, law and jurisdiction” — Where no error or question of law is clearly identified

ADMINISTRATIVE LAW — Supervisory jurisdiction — Where summons also sought certiorari for error of law on the face of the record — Conduct of judicial review refused where applicants also sought leave to appeal

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 34, 80, 83, Sch 4, cl 12(1)

Residential Tenancies Act 2010 (NSW), ss 41, 44, 87, 114, 115, 187

Supreme Court Act 1970 (NSW), ss 48, 51, 69

Cases Cited:

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

Bauskis v Liew [2013] NSWCA 297

Dokas v Gallagher [2024] NSWCA 223

Fong BHNF Fong v Weller [2024] NSWCA 46

Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80

Hamod v State of New South Wales and Anor [2011] NSWCA 375

Islam v Australian Real Estate Relations Pty Ltd [2023] NSWCA 131

Mendonca v Legal Services Commissioner [2020] NSWCA 84

Mohareb v Office of the Director of Public Prosecutions NSW [2024] NSWCA 93

Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235

Shapkin v The University of Sydney [2024] NSWCA 156

Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; (2023) 20 BPR 43,135

Texts Cited:

Nil

Category:Principal judgment
Parties: Tobias Lazarus Dokas (First Applicant)
Lazarakis Dokas (Second Applicant)
David Gallagher (Respondent)
Representation:

Counsel:
Tobias Dokas (Litigant-in-person)
S M Foda (Respondent)

Solicitors:
Strata Title Lawyers (Respondent)
File Number(s): 2024/275296
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
New South Wales Civil and Administrative Tribunal
Jurisdiction:
Appeal Panel
Citation:

[2024] NSWCATAP 129

Date of Decision:
28 June 2024
Before:
M Harrowell, Deputy President
G Sarginson, Senior Member
File Number(s):
2024/155225

JUDGMENT

  1. THE COURT: On 26 July 2024, the applicants filed a summons seeking leave to appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The effect of that provision is that a party to an Appeal Panel decision may appeal to the Supreme Court on a question of law, but only with leave granted by the Court. The summons relates to a decision dated 28 June 2024 by an Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT) (see Dokas v Gallagher [2024] NSWCATAP 129) (“AP Decision”). In brief, the Appeal Panel dismissed the applicants’ appeal against an earlier NCAT decision dated 27 March 2024 by General…

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Details
AGLC
Dokas v Gallagher (No 2) [2024] NSWCA 236
Case
[2024] NSWCA 236
Decision Date

CaseChat Overview and Summary

The applicants, Dokas and Gallagher, sought leave to appeal from a decision of the primary judge. The dispute concerned the applicants' contention that their application for leave to appeal was brought under a question of "fact, law and jurisdiction," while the statutory right to appeal was confined to a "question of law." The matter came before the Court of Appeal of New South Wales, constituted by Kirk JA and Griffiths AJA.

The primary legal issues before the Court of Appeal were whether the applicants had identified a clear error or question of law sufficient to ground an application for leave to appeal under the relevant statutory provisions, and whether the Court should exercise its supervisory jurisdiction to grant certiorari for an alleged error of law on the face of the record, particularly when an application for leave to appeal was also being pursued.

The Court reasoned that the applicants had failed to clearly identify any error or question of law that would permit an appeal under the statutory limitation. Consequently, the Court determined that the application for leave to appeal was not properly before it. Furthermore, the Court declined to exercise its supervisory jurisdiction for judicial review, noting that the applicants were simultaneously seeking leave to appeal, which indicated a preference for the appellate route rather than a separate supervisory intervention.

The summons filed on 26 July 2024 was dismissed, with costs awarded to the respondent.

Orders

Orders of the court

Dismiss the summons filed on 26 July 2024, with costs.

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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