Douglas v Mikhael - [2024] NSWCA 60

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Douglas v Mikhael [2024] NSWCA 60
Hearing dates: 18 March 2024
Date of orders: 19 March 2024
Decision date: 19 March 2024
Before: Payne JA
Decision:
see [11]

Catchwords:
CIVIL PROCEDURE – Practice and Procedure – filing appeal books – contents of appeal books – unrepresented appellant – no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) Part 6
Evidence Act 1995 (NSW) s 136
Supreme Court Act 1970 (NSW) s 75A

Cases Cited:
Douglas v Mikhael & Ors [2023] NSWSC 979

Category: Procedural rulings
Parties:
Appellant:
Joseph Douglas
Respondents:
Fadi Mikhael
Mary Karborani
FBM Enterprises Pty Ltd
Representation: Counsel:
Mr A Duc (appellant)
Mr A J Munro (respondent)

File Number(s): 2023/285206
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 979

Date of Decision:

18 August 2023

Before:

Richmond J

File Number(s):

2021/151712

JUDGMENT

PAYNE JA: On 18 August 2023, Richmond J determined a case between Mr Douglas and the respondents: Douglas v Mikhael & Ors [2023] NSWSC 979. On 17 November 2023, Mr Douglas filed a notice of appeal. On 13 December 2023, the appeal was set down for a one day hearing on 2 April 2024.
The preparation for the appeal is substantially advanced:

the Red Appeal Book has been filed;

the Black Appeal Book has been filed;

the Blue Appeal Book index has been prepared and exchanged and (subject to what appears below) is ready to be filed; and

written submissions on the appeal in chief have been filed by Mr Douglas and the respondents. All that remains to complete the Orange Book are any submissions on behalf of Mr Douglas in reply.

Complaints were made by the respondents about the contents about the Black Book and proposed Blue Book. On 6 March 2024, Registrar Jones ordered:

1.    Orders made in accordance with paragraphs 1 to 7 of the Short Minutes of Order.
SHORT MINUTES OF ORDER
1.    The Court notes that the Appellant served the Blue Appeal Book, which had been due for service by 20 February 2024, on 23 February 2024.
2.    The Court notes that the Respondents have given notice of a dispute regarding the content of the Black Appeal Book and Blue Appeal Book.
3.    Order that the following documents be removed from the Black Appeal Book:
(a)    The document marked in the Index as "G", being submissions filed in proceedings 2020/300636 on 14 May 2021, at page 363-376.
(b)    The document marked in the Index as "H", being submissions filed in proceedings 2020/300636 on 1 June 2021, at page 368-372.

4. Order that the following document be removed from the Blue Appeal Book:
(a) The document marked in the Index as "L", being an Affidavit of the Appellant dated 2 February 2023, at page 587-677.

5. The Court notes that with respect to the Blue Appeal Book, the Appellant has not complied with UCPR rule 51.29(2)(a)(ii)…

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 Douglas v Mikhael

Details

AGLC: Douglas v Mikhael [2024] NSWCA 60
Case: [2024] NSWCA 60
Decision Date: 19 March 2024

CaseChat Overview and Summary

The appellant, Mr. Douglas, an unrepresented litigant, sought to appeal a decision of the District Court of New South Wales. The dispute concerned the contents of the appeal books that Mr. Douglas was required to file in support of his appeal. The primary issue before the Court of Appeal was whether the appeal books complied with the relevant rules of court.

The Court of Appeal was required to determine whether the appellant had complied with the requirements of the *Uniform Civil Procedure Rules 2005* (NSW) concerning the preparation and filing of appeal books, particularly in circumstances where the appellant was unrepresented. The court also considered whether there was any issue of principle arising from the appellant's non-compliance.

Justice Payne acknowledged the appellant's unrepresented status and the difficulties faced by self-represented litigants in navigating complex procedural rules. However, his Honour emphasised that procedural rules must be followed to ensure the efficient administration of justice. The court found that the appeal books filed by the appellant did not meet the mandatory requirements of the rules, and there was no compelling reason to depart from those requirements in this instance. The court noted that the appellant had been given ample opportunity to rectify the deficiencies.

Consequently, the Court of Appeal dismissed the appeal.

Orders

Orders of the court

see [11]

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:	Douglas v Mikhael [2024] NSWCA 60
Hearing dates:	18 March 2024
Date of orders:	19 March 2024
Decision date:	19 March 2024
Before:	Payne JA
Decision:	see [11]
Catchwords:	CIVIL PROCEDURE – Practice and Procedure – filing appeal books – contents of appeal books – unrepresented appellant – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW) Part 6 Evidence Act 1995 (NSW) s 136 Supreme Court Act 1970 (NSW) s 75A
Cases Cited:	Douglas v Mikhael & Ors [2023] NSWSC 979
Category:	Procedural rulings
Parties:	Appellant: Joseph Douglas Respondents: Fadi Mikhael Mary Karborani FBM Enterprises Pty Ltd
Representation:	Counsel: Mr A Duc (appellant) Mr A J Munro (respondent)
File Number(s):	2023/285206
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2023] NSWSC 979 Date of Decision: 18 August 2023 Before: Richmond J File Number(s): 2021/151712