Geftlic v Merhi - [2010] NSWCA 256

NEW SOUTH WALES COURT OF APPEAL
CITATION:
Geftlic v Merhi [2010] NSWCA 256
FILE NUMBER(S):
2009/298550
HEARING DATE(S):
EX TEMPORE DATE:
20 September 2010
PARTIES:
Appellant: Layla Hassan Geftlic
Respondent: Mariam Merhi
JUDGMENT OF:
Sackville AJA Handley AJA
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
1175 of 2009
LOWER COURT JUDICIAL OFFICER:
Garling DCJ
LOWER COURT DATE OF DECISION:
14 August 2009
COUNSEL:
Appellant: J. M Patel
Respondent: U. Coustas
SOLICITORS:
CATCHWORDS:
APPEAL
civil
application for leave to appeal
appeal from a decision of an Assessor in the Small Claims Division of the Local Court to the District Court then to the NSW Court of Appeal
competency of appeal
LEGISLATION CITED:
Local Court Act 2007 s 39 (2)
District Court Act 1973 s 127 (2)
CATEGORY:
Principal judgment
CASES CITED:
Cook v Head [1976] 1 NSWLR 176
Druett v Director-General of Community Services [2001] NSWCA 126
Spruill v Director-General of the Department of Community Services [2001] NSWCA 413
TEXTS CITED:
DECISION:
Application for leave dismissed with costs
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA2009/298550
HANDLEY AJA
SACKVILLE AJA
20 September 2010

GEFTLIC v MERHI

Ex Tempore Judgment
1 SACKVILLE AJA: The matter listed before the Court is an application for leave to appeal from a decision of the District Court. In an ex tempore judgment given on 14 August 2009, Garling DCJ dismissed a summons filed by the present applicant.
2The summons filed in the District Court sought to appeal against orders made by an assessor in the Small Claims Division of the Local Court on 23 February 2009. The assessor returned a verdict in favour of the present respondent (the plaintiff in the Local Court) against the applicant (the defendant in the Local Court) in the sum of $10,000. The respondent’s claim, on which she succeeded, was to recover moneys lent to the applicant.
3Each party was represented in the proceedings before the assessor. The assessor gave reasons for his decision at the conclusion of the hearing. The reasons run for some five pages of single spaced transcript.
4The applicant appealed to the District Court pursuant to s 39(2) of the Local Court Act 2007 (“Local Court Act”). Section 39 of the Local Court Act provides as follows:
“(1)A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2)A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.”

5Mr Patel, who appeared on behalf of the applicant, submitted in this Court that the proceedings in the District Court were not a statutory appeal, but rather an action in the civil jurisdiction of the District Court. The summons filed in…

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 Geftlic v Merhi

Details

AGLC: Geftlic v Merhi [2010] NSWCA 256
Case: [2010] NSWCA 256
Decision Date: 20 September 2010

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal to the NSW Court of Appeal from a decision of the District Court, which itself had heard an appeal from an Assessor in the Small Claims Division of the Local Court. The central dispute revolved around the competency of the further appeal to the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the District Court's decision was one from which an appeal lay to the Court of Appeal as of right, or whether leave to appeal was required. This question turned on the interpretation of the relevant legislative provisions governing appeals from the District Court in this specific context.

The Court of Appeal determined that the appeal from the Assessor to the District Court was an appeal in the nature of a rehearing. Consequently, the District Court's decision was not a judgment or order made by the District Court in the exercise of its original jurisdiction, nor was it a judgment or order made in the exercise of its appellate jurisdiction in a matter that originated in the Local Court in its general jurisdiction. Therefore, an appeal to the Court of Appeal from the District Court's decision required leave. As leave was not granted, the application was dismissed.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave dismissed 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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