Lin v Commissioner of Victims Rights

[2024] NSWCA 226

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lin v Commissioner of Victims Rights [2024] NSWCA 226

Hearing dates:

16 September 2024

Date of orders:

16 September 2024

Decision date:

16 September 2024

Before:

Kirk JA

Decision:

(1) The appeal commenced by notice of appeal filed on 18 July 2024 is dismissed as incompetent.

(2) Appellant to pay the respondent’s costs of the appeal.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Objection to competency of appeal – Where leave to appeal required but not sought

COSTS – Costs of appeal which dismissed as incompetent – Minor and inconsequential delay in service of motion – No reason costs not to follow event

Legislation Cited:

District Court Act 1973 (NSW), s 127(2)(c)

Electronic Transactions Act 2000 (NSW), Sch 1 cl 13

Supreme Court Act 1970 (NSW), s 101(1), 101(2)

Victims Rights and Support Act 2013 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 10.5, 51.22, 51.41

Cases Cited:

Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) [2014] NSWCA 89; (2014) 86 NSWLR 360

Toth v State of New South Wales [2022] NSWCA 185

Category:

Principal judgment

Parties:

H N Lin (Appellant) (Self-represented)
Commissioner of Victims Rights (Respondent)

Representation:

Counsel:
E Dunlop (Respondent)

Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s):

2024/178467

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2024] NSWSC 423

Date of Decision:

22 April 2024

Before:

Schmidt AJ

File Number(s):

2023/423037

EX TEMPORE JUDGMENT (REVISED)

1. In July 2017 the appellant in this matter, Ms Huai Ning Lin, was convicted of an assault charge. In 2023 the respondent, the Commissioner of Victims Rights, made a restitution order against Ms Lin pursuant to the Victims Rights and Support Act 2013 (NSW) requiring her to pay $5,000 to the victim of the assault. Ms Lin unsuccessfully challenged that order in the Civil and Administrative Tribunal, and appealed that decision to the Appeal Panel, again without success. She then sought to challenge the decision of the Appeal Panel in the Supreme Court. Schmidt AJ dismissed the appeal with costs: Lin v Commissioner of Victims Rights [2024] NSWSC 423. On 18 July 2024 Ms Lin filed a notice of appeal in this Court with respect to that decision of her Honour.

2. The appeal came before the Acting Registrar of this Court for directions on 14 August 2024. A note in the Court file indicates that the Registrar raised with Ms Lin that she required leave to appeal given s 101(2)(r) of the Supreme Court Act 1970 (NSW). The note indicates that Ms Lin said she did not agree. The Registrar made orders extending time to enable Ms Lin to file and serve a summons seeking leave to appeal by 4 September 2024. Ms Lin did not take up that opportunity. The respondent filed a notice of motion challenging the competency of the appeal, pursuant to r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), on 15 August 2024. The matter came back before the Registrar on 26 August 2024, who made orders for the exchange of submissions on the motion and listed it for hearing today.

3. The amount in dispute in the appeal is $5,000. Section 101(1) of the Supreme Court Act provides for appeals to this Court from any judgment or order of the Court in a Division of the Supreme Court. Section 101(2) then qualifies the entitlement of any party to appeal by providing that “An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from –”, after which it sets out a series of categories of matters for which leave to appeal is required. The last listed category, in par (r), is in these terms:

a final judgment or order in proceedings of the Court, other than an appeal—

(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.

4. Ms Lin argues that the provision “clearly states that an appeal from a final judgement that involves matter at issue amounting to or more than $100,000 is required leave” (as written). She asserts that “the effect of the provision is that large appeals require leave” but small ones do not.

5. Ms Lin’s understanding is incorrect. The effect of s 101(2)(r) is that a final judgment or order in proceedings of the Supreme Court requires leave unless it falls into one or both of the two categories listed in subparagraphs (i) and (ii), each of which involves a threshold of $100,000. That that is so follows from the words “other than an appeal”, which sets out types of appeals from a final judgment or order which do not require leave. If an appeal from such a judgment or order is not within one of the two subparagraphs then leave to appeal is required. The references in each subparagraph to “amounting to or of the value of $100,000 or more” indicate that the monetary threshold sets a minimum amount.

6. Ms Lin submitted that the words “other than an appeal” require that the proceedings relate to an appeal heard by the Supreme Court. That is not so. The appeal referred to is the appeal in this Court.

7. The effect of the provision (and the equivalent provision in the District Court Act 1973 (NSW)) and its significance were explained, for example, by this Court in Toth v State of New South Wales [2022] NSWCA 185:

[6] The applicant does not have a right of appeal to this Court. Leave to appeal is required because the judgment or order that is challenged involves a matter at issue amounting to less than $100,000. Section 127(2)(c) of the District Court Act 1973 (NSW), which sets that requirement, is in materially the same terms as s 101(2)(r) of the Supreme Court Act 1970 (NSW). …

[14] Leaving aside cases raising issues of principle or public importance, it will be rare that justice will require that an application for leave to appeal involving a small amount will merit the expenditure and use of resources in having an appeal determined by this Court. ...

8. As it was put in Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) [2014] NSWCA 89; (2014) 86 NSWLR 360 at [25], “small appeals require leave”.

9. Ms Lin referred in her written submissions to r 51.22 of the UCPR, asserting that the rule indicates that “a specified amount of value in an Act cannot be a reason to hinder or dismiss a notice of appeal”. That rule applies where a right to appeal is restricted by reference to a specified amount or value, as here. It requires certification that the amount in issue exceeds that amount or value. The rule builds upon provisions such as s 101(2)(r); it does not detract from them. Nor does it cut across the operation of r 51.41, which addresses appeals being dismissed as incompetent.

10. Ms Lin requires leave to appeal in this matter. The appeal she has filed is not competent and should be dismissed.

11. The respondent’s motion was filed within 28 days of the notice of appeal being filed. The Commissioner has drawn attention to the fact that a technical argument can be made that it was not served within 28 days, as it was emailed shortly after 5pm on 15 August 2024: cf UCPR, rr 10.5 and 51.41; Electronic Transactions Act 2000 (NSW), Sch 1 cl 13. It is not necessary to determine the legal issue raised in that regard. Any delay in service here was minor and of no consequence. The Court has power otherwise to order in relation to costs pursuant to r 51.41(2). In the circumstances there is no reason the respondent should not have costs of the proceedings, noting that the Registrar had previously raised s 101(2)(r) with Ms Lin and provided her an opportunity to file a summons seeking leave to appeal.

12. The orders of the Court are as follows:

1. The appeal commenced by notice of appeal filed on 18 July 2024 is dismissed as incompetent.

2. Appellant to pay the respondent’s costs of the appeal.

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Decision last updated: 16 September 2024