Liristis v Gadelrabb - [2012] NSWCA 137

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Liristis v Gadelrabb [2012] NSWCA 137
Hearing dates: 7 May 2012
Decision date: 07 May 2012
Before: Tobias AJA
Decision:
(a)The hearing of the summons for leave to appeal, fixed for 17 May 2012 is vacated.
(b)I grant either party liberty to apply to the Registrar to obtain a new date for hearing of the summons for leave to appeal on twenty four hours written notice when the result of the applicant's appeal against the refusal of the Commission to provide him legal aid has been determined and communicated to him.
(c)I note that the applicant undertakes to the Court first, that he will expeditiously provide the Commission with all information it requires in order for it to determine his appeal and, secondly, that upon receiving any information from the Commission with respect to the determination of his appeal that he will immediately communicate that information to the respondent's solicitor.
(d)The costs of the notice of motion will be costs in the summons for leave to appeal.
(e)In the notice of motion the applicant has sought a review of some orders for costs made by the Registrar, I stand that part of the notice of motion over generally and it can be restored on seven days notice.
[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 - Application for Leave to Appeal - Date for hearing of the summons for leave to appeal vacated - Applicant seeking to appeal against refusal of legal aid to the Legal Aid Review Committee - Application of ss 56 and 57 of the Legal Aid Commission Act 1979 - Exercise of Court's discretion to vacate hearing date pending determination of Legal Aid appeal.
Legislation Cited: Legal Aid Commission Act 1979
Category: Procedural and other rulings
Parties: Tony LIRISTIS (applicant)
Julia GADELRABB (respondent)
Representation: Counsel:
Tony Liristis in Person (applicant)
P J Webb (respondent)
Solicitors:
Unrepresented (applicant)
Julie Abood, Meridian Legal (respondent)

File Number(s): 2008/280586
Decision under appeal

Date of Decision:

2012-06-20 00:00:00

Before:

Ward J

File Number(s):

SC 2006/259403; 2008/278152

Judgment

TOBIAS AJA: The dispute in this matter involves premises at xxx xxxx xxxxxxx xxxx Penshurst (the premises). The applicant, Mr Liristis, who represents himself, occupies the premises which are owned by Ms Julia Gadelrabb, the respondent.

On 20 June 2011 Ward J in the Equity Division of the Court ordered that the applicant vacate the premises six weeks from that date and granted leave for a writ of possession to be issued and executed for that purpose on 1 August 2011. Her Honour made other consequential orders, which, together with the…

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.

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Details

Case: [2012] NSWCA 137
Decision Date: 07 May 2012

CaseChat Overview and Summary

In Liristis v Gadelrabb, the applicant sought to appeal against a decision of the Legal Aid Review Committee refusing him legal aid. The summons for leave to appeal was scheduled for hearing on 17 May 2012.

The primary legal issue before the Court was whether to vacate the hearing date for the summons for leave to appeal pending the determination of the applicant's appeal to the Legal Aid Commission. This involved considering the application of sections 56 and 57 of the Legal Aid Commission Act 1979 and the Court's discretion in managing its proceedings.

Tobias AJA determined that it was appropriate to vacate the hearing date. His Honour reasoned that it would be more efficient to await the outcome of the applicant's appeal to the Legal Aid Commission before proceeding with the summons for leave to appeal. The Court granted liberty to either party to relist the summons upon twenty-four hours' written notice once the result of the legal aid appeal was known and communicated. The applicant provided undertakings to expedite the provision of information to the Commission and to promptly inform the respondent's solicitor of any determination. The costs of the notice of motion were made costs in the summons for leave to appeal, and a review of certain costs orders made by the Registrar was stood over generally.

Orders

Orders of the court

(a)The hearing of the summons for leave to appeal, fixed for 17 May 2012 is vacated.

(b)I grant either party liberty to apply to the Registrar to obtain a new date for hearing of the summons for leave to appeal on twenty four hours written notice when the result of the applicant's appeal against the refusal of the Commission to provide him legal aid has been determined and communicated to him.

(c)I note that the applicant undertakes to the Court first, that he will expeditiously provide the Commission with all information it requires in order for it to determine his appeal and, secondly, that upon receiving any information from the Commission with respect to the determination of his appeal that he will immediately communicate that information to the respondent's solicitor.

(d)The costs of the notice of motion will be costs in the summons for leave to appeal.

(e)In the notice of motion the applicant has sought a review of some orders for costs made by the Registrar, I stand that part of the notice of motion over generally and it can be restored on seven days notice.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Liristis v Gadelrabb [2012] NSWCA 137
Hearing dates:	7 May 2012
Decision date:	07 May 2012
Before:	Tobias AJA
Decision:	(a)The hearing of the summons for leave to appeal, fixed for 17 May 2012 is vacated. (b)I grant either party liberty to apply to the Registrar to obtain a new date for hearing of the summons for leave to appeal on twenty four hours written notice when the result of the applicant's appeal against the refusal of the Commission to provide him legal aid has been determined and communicated to him. (c)I note that the applicant undertakes to the Court first, that he will expeditiously provide the Commission with all information it requires in order for it to determine his appeal and, secondly, that upon receiving any information from the Commission with respect to the determination of his appeal that he will immediately communicate that information to the respondent's solicitor. (d)The costs of the notice of motion will be costs in the summons for leave to appeal. (e)In the notice of motion the applicant has sought a review of some orders for costs made by the Registrar, I stand that part of the notice of motion over generally and it can be restored on seven days notice. [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 - Application for Leave to Appeal - Date for hearing of the summons for leave to appeal vacated - Applicant seeking to appeal against refusal of legal aid to the Legal Aid Review Committee - Application of ss 56 and 57 of the Legal Aid Commission Act 1979 - Exercise of Court's discretion to vacate hearing date pending determination of Legal Aid appeal.
Legislation Cited:	Legal Aid Commission Act 1979
Category:	Procedural and other rulings
Parties:	Tony LIRISTIS (applicant) Julia GADELRABB (respondent)
Representation:	Counsel: Tony Liristis in Person (applicant) P J Webb (respondent) Solicitors: Unrepresented (applicant) Julie Abood, Meridian Legal (respondent)
File Number(s):	2008/280586
Decision under appeal	Date of Decision: 2012-06-20 00:00:00 Before: Ward J File Number(s): SC 2006/259403; 2008/278152