Jaffari v Grabowski

Case [2013] NSWCA 114

Court of Appeal

New South Wales
Case Title: Jaffari v Grabowski
Medium Neutral Citation: [2013] NSWCA 114
Hearing Date(s): 3 April 2013
Decision Date: 13 May 2013
Before: McColl JA at [1]; Ward JA at [106]
Decision:

1. Extend the time for the filing of the motion to review Barrett JA's order of 6 December 2012 to 1 February 2013.
2. Dismiss the motion to review Barrett JA's order.
3. Applicants to pay the costs of the motion.

[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 - Court of Appeal - review of decision of single judge of appeal - where judge of appeal refused application to extend time for filing notice of appeal - whether applicants demonstrated relevant error in single judge's decision
Legislation Cited: Civil Procedure Act 2005
Reciprocal Enforcement of Judgments Act 1934 (NZ)
Supreme Court Act 1970
Surveillance Devices Act 2007
Uniform Civil Procedure Rules
Cases Cited: Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Grabowski v Jaffari (District Court of New South Wales, Gibb DCJ, 15 July 2011, unreported)
Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274
Lo v Iverach [2009] NSWCA 92
Patrick v Howorth [2002] NSWCA 285
Porter v Gordian Runoff Ltd [2004] NSWCA 171
Richards v Cornford (No 3) [2010] NSWCA 134
See v Hardman [2002] NSWSC 234
Thomas v Nash [2010] SASC 153; (2010) 107 SASR 309
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143
Category: Principal judgment
Parties: Mehdi Jaffari - first applicant
Tracey Jaffari - second applicant
Livia Grabowski - respondent
Representation
- Counsel: Counsel:
Applicants in person - Mr C Henry (McKenzie friend)
M Hutchings - Respondent
- Solicitors: Solicitors:
Applicants in person
McIntosh McPhillamy & Co - Respondent
File Number(s): 2012/315253
Decision Under Appeal
- Before: Barrett JA
- Date of Decision:  08 December 2012
- Citation: Jaffari v Grabowski [2012] NSWCA 425
- Court File Number(s): 2012/315253
Publication Restriction: No

JUDGMENT

  1. McCOLL JA: Mehdi Jaffari and Tracey Jaffari, the applicants, seek a review pursuant to s 46(4) of the Supreme Court Act 1970 of Barrett JA's ex tempore judgment dismissing their application for an extension of time for the filing of a notice of appeal: Jaffari v Grabowski [2012] NSWCA 425 (the "review judgment").

  2. The application for review was heard by two judges of appeal by direction of Bathurst CJ pursuant to s 46B(2) of the Supreme Court Act.

Background

  1. The applicants…

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AGLC
Jaffari v Grabowski [2013] NSWCA 114
Case
[2013] NSWCA 114
Decision Date

CaseChat Overview and Summary

In *Jaffari v Grabowski*, the applicants sought to review an order made by a single judge of the Court of Appeal who had refused their application to extend the time for filing a notice of appeal. The core of the dispute concerned whether the applicants had demonstrated a relevant error in the single judge's decision to refuse the extension.

The Court of Appeal was required to determine whether the single judge had erred in law or fact in refusing the extension of time for the filing of the notice of appeal. This involved considering the principles governing the grant or refusal of such extensions, particularly in light of the time limits prescribed by the Uniform Civil Procedure Rules 2005 for setting aside or varying judgments or orders.

The Court of Appeal, comprising McColl and Ward JJA, ultimately extended the time for the filing of the motion to review the single judge's order, but then dismissed the motion itself. This outcome indicates that while the applicants were permitted to bring their review application out of time, the Court found no substantive error in the original decision to refuse the extension of time for the notice of appeal. Consequently, the applicants were ordered to pay the costs of the motion.

Orders

Orders of the court

1. Extend the time for the filing of the motion to review Barrett JA's order of 6 December 2012 to 1 February 2013.

2. Dismiss the motion to review Barrett JA's order.

3. Applicants to pay the costs of the motion.

[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.]

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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