Droga v Cannon - [2015] NSWSC 1502

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Droga v Cannon [2015] NSWSC 1502
Hearing dates: 12 October 2015
Date of orders: 12 October 2015
Decision date: 16 October 2015
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Ground 4 of the Summons filed 16 July 2015 is struck out.
2. The Plaintiff has leave to file an amended summons in the form of annexure “I” to the affidavit of Vanessa Leonie Naidu sworn 10 September 2015 but omitting paragraph 4 therefrom.
3. The Plaintiff is to pay the costs of the Defendant’s Motion filed 10 September 2015.
4. The Plaintiff is to pay the costs of the Plaintiff’s Motion filed 10 September 2015.

Catchwords: APPEAL – appeal to the Court from Local Court – grounds of appeal – whether a ground alleging the magistrate allowed lawyers to fail to comply with s 56 Civil Procedure Act should be struck out – whether an error of law – whether vexatious and embarrassing – ground struck out
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015
Local Court Act 2007 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Avery v R [2015] NSWCCA 50
Baulderstone Hornibrook Engineering Pty Ltd V Gordian Runoff Ltd [2008] NSWCA 243
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116
White v Overland (2001) FCA 1333
Zreika v R [2012] NSWCCA 44
Texts Cited: Mark Aronson & Matthew Groves, Judicial Review of Administrative Action (5th Ed 2013, Thomson Reuters)
Category: Procedural and other rulings
Parties: Lisa Droga (Plaintiff)
Duncan Cameron (First Defendant)
State Transit Authority of NSW (Second Defendant)
Representation:
Counsel:
S Walsh (Plaintiff)
K Oliver (Defendants)
Solicitors:
CME Legal (Plaintiff)
JHK Legal (Defendants)

File Number(s): 2015/207735

Judgment

This is the hearing of two Motions in an appeal brought by the Plaintiff from a decision of Magistrate Bradd in the Local Court on 18 June 2015. Both Motions concern the form of the Plaintiff’s Summons appealing from that decision.
The proceeding below was an action for damages arising from a motor vehicle collision. The Court gave judgment for the Plaintiff in the sum of $11,416.97. It subsequently awarded the Plaintiff only 40% of her costs and ordered the Plaintiff to pay 60% of the Defendants’ costs and that those latter costs should be paid on an indemnity basis after 17 June 2015.
The Court below ordered general damages for loss of use assessed by reference to interest on the capital value of the Plaintiff’s vehicle. The Court below declined to assess general damages for loss of use claimed by reference to the cost of hire of a replacement vehicle because it was not satisfied on the evidence that the Plaintiff had a need for a replacement vehicle at any material time. The present appeal is in substance an appeal against the Court below’s assessment of that part of the Plaintiff’s damages that consisted of the loss of use…

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 Droga v Cannon

Details

AGLC: Droga v Cannon [2015] NSWSC 1502
Case: [2015] NSWSC 1502
Decision Date: 16 October 2015

CaseChat Overview and Summary

The appeal was brought by the defendant, Cannon, against a decision made in the Local Court. The dispute involved a conviction for breaching a local environmental by-law. The Court of Appeal was tasked with evaluating the grounds of appeal and determining whether the magistrate had allowed lawyers to fail to comply with section 56 of the Civil Procedure Act. The primary issue before the court was whether the ground alleging non-compliance with section 56 should be struck out. Additionally, the court needed to decide if this amounted to an error of law and whether the ground was vexatious and embarrassing. The reasoning of the court focused on the nature of the ground of appeal and its relevance to the proceedings. The court concluded that the ground alleging non-compliance with section 56 was not a valid ground of appeal. It was not an error of law, nor was it vexatious and embarrassing. Therefore, the ground was struck out. The appeal was dismissed, and the conviction in the Local Court was upheld.

Orders