Hansen v Slattery Transport (NSW) Pty Ltd

[2011] NSWCA 193

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hansen v Slattery Transport (NSW) Pty Ltd [2011] NSWCA 193

Hearing dates:

4 July 2011

Decision date:

04 July 2011

Before:

Basten JA

Decision:

(1) The notice of motion filed 24 June 2011 be dismissed.

(2) The costs of the motion are to be costs in the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - objection to competency - appeal involving an amount at issue of less than $100,000 - whether correct to add both parties claims - whether greater amount a realistic possible outcome

Legislation Cited:

District Court Act 1973 (NSW), s 127
Judiciary Act 1903 (Cth), s 35

Cases Cited:

Blackmore v Browne [2011] NSWCA 114
Gillard v Hunter Wire Products t/as Hunter Screen Products (No 2) [2001] NSWCA 450
Pegela Pty Ltd v Oates [2010] NSWCA 186

Category:

Procedural and other rulings

Parties:

Peter Hansen - First Appellant
Lyschrome Pty Ltd - Second Appellant

Slattery Transport (NSW) Pty Ltd - First Respondent
Noel Christopher Hawkins - Second Respondent

Representation:

Counsel:

R A Parsons - Appellants

S G Campbell SC/A R Davis - Respondents
Solicitors:

CLS Legal - Appellants

Lance Brennan - Respondents

File Number(s):

CA 2011/77980

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-03-11 00:00:00

Before:

Balla DCJ

File Number(s):

DC 2010/99885

Judgment

1. HIS HONOUR : This case involves a challenge to the competency of an appeal from a decision of Balla DCJ in the District Court. Her Honour gave judgment in relation to a collision involving two motor vehicles in favour of the respondent. The amount of the verdict was less than $100,000 when interest was taken into account, although only marginally so. The loss involved to the appellant was the cost of the damage caused to the other motor vehicle, but it also suffered damage to its own vehicle. The combined amounts in issue exceed $100,000.

1. The question of competency turns in effect on what is meant by "an appeal ... that involves a matter at issue amounting to or of the value of $100,000 or more", as found in s 127(2) of the District Court Act 1973 (NSW). Reference has been made to a number of authorities. First, I accept the proposition which is set out in the judgment of Campbell JA in Blackmore v Browne [2011] NSWCA 114 at [32], that it is not helpful to turn to the authorities under the Judiciary Act 1903 (Cth), s 35 for assistance, the language of the statute being different. There is however authority for the proposition that the amount at issue is to be understood in the sense of there being a real prospect of changing the judgment below by an amount of more than $100,000, in respect of which I have been directed to the statements in Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 at [12] (Priestley JA and Sperling J) as applied in Pegela Pty Ltd v Oates [2010] NSWCA 186 at [61]-[63] (Young JA).

1. The issue in some cases may involve a judgment as to the quantum of damages. That is not so in the present case. Alternatively, there may be an issue as to apportionment of liability. It is quite possible that one outcome of the present case would be an apportionment of liability and counsel for the respondent relied upon that as the most likely outcome. It is a possibility and it is no doubt a realistic possibility, with the result that what will ultimately be involved may be a variation by an amount of less than $100,000.

1. On the other hand, where the appellant seeks to set aside a judgment of almost $100,000 and recover its own damage in an amount of $30,000, the amount put in issue by the appellant's claim is in excess of $100,000 and it cannot be seen on the face of the documents that the result of the appeal cannot realistically involve such an amount, it would be inappropriate for this Court to treat the matter as one requiring leave to appeal. In many such cases leave is sought. It may be that this is an important case in that respect because there might be little reason, apart from the amount involved, for granting leave to appeal. That is a matter on which I express no opinion, but I presume that is why we are here today.

1. Nevertheless, in the circumstances I think the appropriate course is to accept that the amount in issue is in excess of $100,000; accordingly leave is not required and the objection to competency should be dismissed.

1. The Court makes the following orders:

(1) The notice of motion filed 24 June 2011 be dismissed.

(2) The costs of the motion are to be costs in the appeal.

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Amendments

13 October 2011 - Correcting case title

Amended paragraphs: Coversheet

Decision last updated: 13 October 2011