Kassem v Colonial Mutual General Insurance Co Ltd

The New South Wales Court of Appeal considered an appeal by Kassem against Colonial Mutual General Insurance Co Ltd. The central dispute concerned the competence of Kassem's appeal from a decision of the District Court, specifically whether it met the threshold requirements for an appeal to the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the appeal was incompetent at the time the Notice of Appeal was filed due to a failure to comply with procedural rules regarding affidavits, and whether the nature of the claim itself rendered the appeal incompetent. Additionally, the court had to determine whether to grant leave to appeal, considering the amounts involved and the presence of any substantial questions of principle.

Powell JA, with whom Ipp AJA and Rolfe AJA agreed, held that the appeal was incompetent at its inception. This was because the affidavit filed pursuant to Part 51 rule 8 of the Supreme Court Rules did not disclose facts demonstrating the required monetary threshold, but rather expressed a belief. Furthermore, the court found that the claim involved liquidated damages for which the plaintiff could not sue under the policy, having elected to affirm it, citing established authorities. The application for leave to appeal was refused, as the amounts in dispute did not justify it, and no significant questions of principle were raised. Leave to amend the Notice of Appeal was also refused.

Consequently, the Court of Appeal ordered that the appeal be dismissed as incompetent, leave to appeal be refused, and leave to amend the Notice of Appeal be refused. Each party was ordered to bear its own costs of the appeal.