Hussain v Tam - [2016] ACTCA 21

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Hussain v Tam
Citation:	[2016] ACTCA 21
Hearing Date:	22 and 27 June 2016
DecisionDate:	27 June 2016
Before:	Refshauge J
Decision:	1. The application for leave to appeal (ACTCA 6 of 2015) be dismissed for want of prosecution. 2. The appeal (ACTCA 38 of 2015) be dismissed for want of prosecution.
Catchwords:	APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Service of documents – service on self-represented litigant – address for service APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Striking out – non-compliance with directions – want of prosecution – appeal dismissed – application for leave dismissed
Legislation Cited:	Court Procedures Rules 2006 (ACT), rr 2803, 5191(2), 6420(c), 6420(d), 6420(g), Div 5.3.5
Cases Cited:	Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 GJ v AS [2015] ACTCA 12 Hussain v Tam [2015] ACTSC 197 Stead v Government Insurance Commission (1986) 161 CLR 141
Parties:	Hasin Hussain (Appellant) Chung Lai Tam (Respondent)
Representation:	Counsel No appearance (Appellant) Mr C Tam (Self-represented) (Respondent)
Solicitors No appearance (Appellant) Self-Represented (Respondent)
File Number:	ACTCA 6 of 2015 ACTCA 38 of 2015
Decision under appeal:	Court: ACT Supreme Court Before: Burns J Date of Decision: 5 August 2015 Case Title: Hussain v Tam Citation: [2015] ACTSC 197

REFSHAUGE J:

A dispute between Hasin Hussain, the appellant, and Chung Lai Tam, the respondent, arose over the sale of a motor vehicle in August 2009. Mr Tam commenced proceedings in the Magistrates Court suing Mr Hussain for the unpaid price of the motor vehicle.

On 6 May 2014, judgment was given for Mr Tam in the sum of $8,276.75, together with interest and costs.

Mr Hussain, however, appealed against the judgment. That appeal was heard by Burns J on 13 August 2015. On 5 August 2015, his Honour dismissed the appeal with costs. See Hussain v Tam [2015] ACTSC 197.

Proceedings on Appeal

Mr Hussain appealed against that judgment to this Court. He also separately sought leave to appeal out of time from an interlocutory order made by Burns J on 5 December 2014 when his Honour ordered that the proceedings be listed for hearing on 2 March 2015 and directed that the appeal would proceed to a hearing on that day.

Mr Hussain was represented in the Magistrates Court and in the Supreme Court. Mr Tam was not represented in the Magistrates Court or the Supreme Court.

When Mr Hussain’s appeal was lodged in this Court, the Notice of Appeal showed that it was lodged by Mr Hussain and gave his contact details as the Address for Service but it did not provide particulars of the solicitor said to be the appellant’s solicitor.

A different solicitor attended at a number of the directions hearings to settle the Index to the Appeal Papers. The solicitor was given leave to appear, apparently because he was not fully instructed and had not filed a notice under r 2803 of the Court…

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 Hussain v Tam

Details

AGLC: Hussain v Tam [2016] ACTCA 21
Case: [2016] ACTCA 21
Decision Date: 27 June 2016

CaseChat Overview and Summary

The proceeding concerned an appeal and an application for leave to appeal before Refshauge J in the ACT Civil and Administrative Appeals Tribunal. The dispute arose from the appellant's failure to comply with directions issued by the Tribunal, leading to applications to strike out the appeal and the application for leave to appeal for want of prosecution.

The primary legal issues before the Tribunal were whether the appeal and the application for leave to appeal should be dismissed due to the appellant's non-compliance with Tribunal directions and whether the service of documents on the appellant, a self-represented litigant, was effective.

Refshauge J determined that the appellant had failed to prosecute the appeal and the application for leave to appeal. The Tribunal applied the principles relating to the dismissal of proceedings for want of prosecution, which require a party to actively pursue their case. The Tribunal also considered the requirements for service on a self-represented litigant, noting that the appellant had provided an address for service. Ultimately, the Tribunal found that the appellant's lack of engagement and failure to comply with directions warranted the dismissal of both the appeal and the application for leave to appeal.

The Tribunal ordered that the application for leave to appeal be dismissed for want of prosecution, and similarly, the appeal was dismissed for want of prosecution.

Orders

Orders of the court

1. The application for leave to appeal (ACTCA 6 of 2015) be dismissed for want of prosecution.

2. The appeal (ACTCA 38 of 2015) be dismissed for want of prosecution.

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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