SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Faris v Savage (No 2) |
Citation: | [2020] ACTSC 219 |
Hearing Date(s): | 15 June 2020 |
DecisionDate: | 11 August 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [62] |
Catchwords: | APPEAL – Appeal from Magistrates Court – single ground of appeal – whether appellant’s former solicitor advocate incompetent – whether incompetence gave rise to miscarriage of justice |
Legislation Cited: | Building Act 2004 (ACT) Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) r 5052 Magistrates Court Act 1930 (ACT) ss 274, 276 |
Cases Cited: | Adapt Constructions Pty Ltd v Whittaker and Luff [2015] ACTSC 188 Ahmu v The Queen [2014] NSWCCA 312 Bajramovic v Calubaquib [2015] NSWCA 139 Bellgrove v Eldridge (1954) 90 CLR 613 Chouman v Margules (1993) 17 MVR 144 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 Faris v Savage [2019] ACTSC 339 Fox v Percy [2003] HCA 22; 214 CLR 118 Goreski v de Costa [2014] ACTSC 233 Jowett v Kelly [2008] NSWSC 1009 Malek v Remondis Australia Pty Ltd [2015] ACTSC 135 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Stekovic v Polyseal Waterproofing Technologies Pty Ltd [2013] ACTSC 195 Stevens v McCallum [2006] ACTCA 13 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 |
Parties: | Rabea Hatem Faris (Appellant) Gail Savage (Respondent) |
Representation: | Counsel J Moffett (Appellant) J Redwood with P Bindon (Respondent) |
| Solicitors Snedden, Hall & Gallop (Appellant) Aulich Law (Respondent) | |
File Number(s): | SCA 47 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Fryar Date of Decision: 24 August 2018 Case Title: Savage v Faris Citation: [2018] ACTMC 17 |
LOUKAS-KARLSSON J
Introduction
The appellant in this matter was the defendant in proceedings conducted in the Magistrates Court in 2018. Following a contested hearing on 24 August 2018 Magistrate Fryar entered judgment for the plaintiff, who is the respondent in in this appeal, in the sum of $107,819.24 plus costs to be agreed or assessed.
By way of application in proceeding dated 13 August 2019, the appellant sought leave to appeal the decision of Magistrate Fryar. Legal error by the learned Magistrate was not alleged. The basis of the appeal is that the appellant’s former solicitor had been incompetent in the Magistrates Court proceedings to such a degree that it had caused a miscarriage of justice. The application for leave to appeal, an application to join the appellant’s former solicitor (IG) to the proceedings, and the application to adduce further evidence on appeal was heard by Burns J on 28 October and 6 December 2019.
Burns J delivered his reasons on 6 December 2019, dismissing the application to join IG as a party to the appeal, but allowing the appeal to proceed and for further evidence to be adduced pursuant to s 276 of…
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- Faris v Savage (No 2) [2020] ACTSC 219
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CaseChat Overview and Summary
The primary legal issue before the court was whether the appellant's former solicitor advocate was indeed incompetent, and if such incompetence resulted in a miscarriage of justice. The appellant argued that their former solicitor advocate failed to properly advise and represent them, which ultimately led to an unjust outcome in the Magistrates Court. The court had to determine whether the appellant's claims of incompetence were substantiated and if this alleged incompetence was significant enough to warrant a reversal of the lower court's decision.
In delivering its decision, the court examined the evidence presented regarding the competence of the former solicitor advocate and the impact of any alleged deficiencies on the proceedings. The court found that there was no clear evidence of incompetence on the part of the solicitor advocate, and thus, the appellant's claims of a miscarriage of justice due to the alleged incompetence were not substantiated. Consequently, the court dismissed the appeal, affirming the decision of the Magistrates Court. As a result, the appellant's appeal was unsuccessful, and no further orders were made beyond affirming the original decision of the Magistrates Court.
Orders
Orders of the court
See [62]
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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