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 the District Court, however, expressly identifies the proceedings as an appeal under s 39(2) of the Local Court Act from the decision of the Small Claims Division of the Local Court.

6Both parties were represented on the appeal heard and determined by Garling DCJ.  His Honour rejected the applicant’s arguments that:

the Local Court lacked jurisdiction to decide the respondent’s claim; and

the applicant had been denied procedural fairness by the assessor.

7The draft notice of appeal filed by the applicant states that the appeal to this Court is brought pursuant to s 127(2)(c)(i) of the District Court Act 1973 (“District Court Act”). Section 127 provides as follows:

“(1)A party who is dissatisfied with a Judge’s or a Judicial Registrar’s judgment or order in an action may appeal to the Supreme Court.

(2)The following appeals lie only by leave of the Supreme Court:

(a)        an appeal from an interlocutory judgment or order;

(b)        …

(c)an appeal from a final judgment or order, other than an appeal:

(i)that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii)that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.

…

(3)        In any other case, an appeal lies as of right.”

The term “action” is defined by s 4 of the District Court Act relevantly to mean “action in the Court”. 

8The District Court has a civil jurisdiction consisting of jurisdiction conferred by Part 3 of the District Court Act and the jurisdiction conferred on it by any other Act or Part: s 9. Part 3 of the District Court Act includes s 44, which confers jurisdiction on the Court to hear and dispose of “actions” of the kind identified in the section. The matters identified do not include statutory appeals, such as those provided for by s 39(2) of the Local Court Act.

9There is an established line of authority in New South Wales holding that a statutory appeal to the District Court is not an “action in the Court”: Cook v Head [1976] 1 NSWLR 176, at 180, per Glass JA; at 185, per Mahoney JA; Druett v Director-General of Community Services [2001] NSWCA 126, at [11]-[13], per Hodgson JA (with whom Giles and Ipp JJA agreed); Spruill v Director-General of the Department of Community Services [2001] NSWCA 413, at [23]-[24], per Beazley JA.

10Mr Patel asserted that these authorities did not apply to an appeal to the District Court under s 39(2) of the Local Court Act.  He did not, however, cite any authority to support the assertion.  Nor did he offer any cogent or plausible reason why the line of authority to which I have referred should not be applied in the present case.

11It follows that this Court has no jurisdiction to entertain an appeal or application for leave to appeal from the District Court on a decision made pursuant to the right of appeal conferred by s 39(2) of the Local Court Act. The application for leave to appeal is therefore incompetent and must be dismissed, with costs.

12        HANDLEY AJA: I agree.  The orders of the Court will be as pronounced by Acting Justice Sackville.

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LAST UPDATED:
1 October 2010