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Kazas-Rogaris v Gaddam

Kazas-Rogaris v Gaddam

Case [2014] NSWSC 1465 9 December 2014

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Kazas-Rogaris v Gaddam [2014] NSWSC 1465
Hearing dates: 24 October 2014
Decision date: 09 December 2014
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Appeal dismissed.
2. The Plaintiff is to pay the Defendant's costs.

Catchwords: APPEAL - from Local Court - claim for trespass to land - neighbour cuts down trees on Plaintiff's land - various procedural errors alleged - whether errors of law - one party calls another party to give evidence - whether an abuse of process - magistrate permits discontinuance against one defendant - whether consent of other defendant needed - apprehended bias -failure of appellant to object at trial to matters now complained of - whether waiver by failing to raise matters
Legislation Cited: Civil Procedure Act 2005 (NSW).
Evidence Act 1995 (NSW)
Local Court Act 2007 (NSW)
Oaths Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
House v The King (1936) 55 CLR 499
James Hardie and Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382
Vakuta v Kelly (1989) 167 CLR 568
SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283
Texts Cited: Mark Aronson & Matthew Groves, Judicial Review of Administrative Action (5th Ed 2013, Thomson Reuters)
J D Heydon, Cross on Evidence (8th Australian Edition 2010, Lexis Nexus Butterworths)
Category: Principal judgment
Parties: Anne Kazas-Rogaris (Plaintiff)
Felicia Gaddam (Defendant)
Representation: Counsel:
B Levet (Plaintiff)
R Lee (Defendant)
Solicitors:
Bechara and Company Lawyers (Plaintiff)
Rhodes Legal (Defendant)

File Number(s): 2014/122269
Decision under appeal

Date of Decision:

2014-03-26 00:00:00

Before:

Skinner LCM

File Number(s):

2012/383582

Judgment

On 23 July 2012 the Plaintiff Anne Kazas-Rogaris, by her agent Kodr Haj, a tree lopper, cut down 16 Cyprus pine trees on the neighbouring property owned by the Defendant Felicia Gaddam. The Defendant sued the Plaintiff and Mr Haj for trespass. Mr Haj was the Second Defendant in the Local Court.

On 26 March 2014 Magistrate Skinner LCM gave judgment in favour of the Defendant against the Plaintiff for $20,000 general damages for rectification work and $5,000 exemplary damages together with costs.

The Plaintiff appeals to this Court pursuant to s 39 Local Court Act 2007 (NSW). Four grounds of appeal are relied upon as follows:

(1) In relation to the Second Defendant in the Court below ("the Second Defendant"), her Honour erred in:

(a) Allowing the Second Defendant to be called as a witness in the case of the plaintiff in the Court below;

(b) Allowing the Affidavit…

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 Kazas-Rogaris v Gaddam

Details

AGLC: Kazas-Rogaris v Gaddam [2014] NSWSC 1465
Case: [2014] NSWSC 1465
Decision Date: 09 December 2014

CaseChat Overview and Summary

The appeal involved Kazas-Rogaris, the plaintiff, against Gaddam, the defendant. The dispute originated from an action in the Local Court where the plaintiff sought damages for trespass to land. The plaintiff alleged that the defendant had unlawfully cut down trees on the plaintiff's property. The defendant contended that the trees were on their own property and that their actions were lawful. The case was heard in the Local Court and subsequently appealed to a higher court.

The appeal raised several legal issues, including whether there were procedural errors in the Local Court proceedings, whether these errors constituted an abuse of process, and whether the magistrate's decision to allow the discontinuance of the claim against one defendant without the consent of the other was proper. The plaintiff also argued that the defendant's calling of a witness was an abuse of process, and that the failure to object to certain matters during the trial constituted a waiver of those objections.

The court considered the procedural errors alleged by the plaintiff and found that many of them did not constitute errors of law but rather were procedural irregularities that did not impact the fairness of the proceedings. The court held that the defendant's calling of a witness was not an abuse of process, and that the failure of the plaintiff to object to certain matters at the trial stage constituted a waiver of those objections. Regarding the discontinuance of the claim, the court found that the magistrate did not err in permitting it, as the consent of the other defendant was not required. Finally, the court held that there was no apprehended bias on the part of the magistrate.

The appeal was dismissed, and the decision of the Local Court was upheld. The court found that the procedural irregularities did not amount to an abuse of process or errors of law, and that the plaintiff's failure to object to certain matters at the trial stage constituted a waiver of those objections. The court also found that the magistrate did not err in permitting the discontinuance of the claim against one defendant without the consent of the other.

Orders