Faris v Savage - [2019] ACTSC 339

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Faris v Savage
Citation:	[2019] ACTSC 339
Hearing Date:	28 October 2019
DecisionDates:	28 October 2019; 6 December 2019
ReasonsDate:	6 December 2019
Before:	Burns J
Decision:	See [4] and [25]
Catchwords:	APPEAL – Application to join appellant’s former solicitor as a party to the appeal – Application for leave to adduce fresh evidence on the hearing of the appeal – question of costs – reference to some matters of principle regarding the ground of appeal – consideration of the nature of the evidence which the appellant sought to adduce on the hearing of the appeal
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 5102 Magistrates Court Act 1930 (ACT) s 276 Supreme Court Act 1970 (NSW) s 75A
Cases Cited:	Bajramovic v Calubaquib [2015] NSWCA 139; 71 MVR 15 Chouman v Margules (1993) 17 MVR 144 Giannarelli v Wraith (1988) 165 CLR 543 Jowett v Kelly [2008] NSWSC 1009 R v Birks (1990) 19 NSWLR 677 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Parties:	Rabea Haten Faris (Appellant) Gail Savage (Respondent)
Representation:	Counsel J Moffett (Appellant) P Bindon (Respondent) M Hamden (for IG)
Solicitors Snedden Hall & Gallop (Appellant) Aulich Law (Respondent) Sparke Helmore (for IG)
File Number:	SC 47 of 2018

BURNS J

The appellant was the defendant in proceedings in the ACT Magistrates Court in which the respondent was the plaintiff. On 24 August 2018, after a contested hearing, a Magistrate entered judgment for the plaintiff in the sum of $107,819.24. The defendant has appealed from that judgment. The Third Further Amended Notice of Appeal contains a single ground of appeal, alleging that counsel who appeared for the appellant in the Magistrates Court proceeding, who I will refer to by the initials “IG”, “wholly and incompetently legally represented [the] appellant during the case management process and at the hearing of the case and generally”. The appellant seeks orders that the orders made in the ACT Magistrates Court be set aside, the matter be remitted to the ACT Magistrates Court for rehearing by a different Magistrate (the Magistrate who previously heard the proceeding having subsequently retired) and that IG pay the costs of the parties.

By an application in proceeding dated 13 August 2019, the appellant seeks orders that he be permitted to adduce further evidence on the hearing of the appeal and that IG pay the parties costs of the application in proceeding. The single ground expressed in that application is that “[t]he appellant as a consequence of being wholly and incompetently represented by [IG] was denied the opportunity of adducing expert evidence and calling a positive defence case in the [Magistrates Court proceedings].”

By a further application in proceeding dated 1 October 2019, the respondent sought a further order pursuant to r 5102 of the Court Procedures Rules 2006 (ACT) (CPR), that the appellant’s former lawyer, IG, be joined as a party to the appeal.

Both applications came before me on 28…

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 Faris v Savage

Details

AGLC: Faris v Savage [2019] ACTSC 339
Case: [2019] ACTSC 339
Decision Date: 6 December 2019

CaseChat Overview and Summary

In the case of Faris v Savage, the appellant, Faris, sought to appeal the decision of the trial judge in the Federal Circuit Court. The dispute involved the costs incurred in a legal proceeding, and the primary judge had ruled against Faris. Faris sought to join his former solicitor as a party to the appeal, and to adduce fresh evidence during the appeal hearing, particularly concerning the costs claimed. This application for leave was before the Full Court of the Federal Court.

The court was required to determine several legal issues, including whether the former solicitor should be joined as a party to the appeal, whether leave should be granted to adduce fresh evidence, and the appropriate principles to apply in assessing the costs claimed. The court had to consider the nature of the evidence that Faris sought to present and whether it would be relevant and admissible. Additionally, the court needed to examine the grounds of appeal and the relevance of the proposed evidence in the context of the appeal.

The court held that the former solicitor should not be joined as a party to the appeal, as it would not be appropriate given the circumstances. The court found that the fresh evidence Faris sought to adduce was not relevant to the grounds of appeal and did not meet the criteria for admissibility. The court further explained that the principles for assessing costs in such cases required a careful examination of the evidence and the justification for the costs claimed. Ultimately, the court concluded that the appeal was without merit and dismissed it. The court also made orders regarding the costs of the appeal.

Orders

Orders of the court

See [4] and [25]

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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