Lukaszewicz v Polish Club Ltd - [2020] NSWCA 99

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lukaszewicz v Polish Club Ltd [2020] NSWCA 99
Hearing dates: 21 May 2020
Date of orders: 21 May 2020
Decision date: 21 May 2020
Before: Ward JA at [1];
White JA at [2];
Emmett AJA at [49]
Decision:
(1) Order that the summons seeking leave to appeal and cross-appeal be dismissed.
(2) Order that the purported notices of appeal and cross-appeal be dismissed as incompetent.
(3) Order that there be no further order as to costs of the appeal, cross-appeal or applications for leave to appeal.

Catchwords:
CIVIL PROCEDURE — Court of Appeal — Competency of appeal – where purported appeal and cross appeal commenced as of right – where only the availability of declaratory and injunctive relief in issue on appeal – where leave to appeal required by s 101(2)(r) of the Supreme Court Act 1970 (NSW)
CIVIL PROCEDURE — Court of Appeal — Leave to appeal – where the provision of declaratory relief alone as a result of a finding of oppression– where underlying controversy between the parties has been quelled – whether substantive injustice arises if primary judgment allowed to stand – whether issue of principle or public importance that is more than merely arguable if declaratory relief given is allowed to stand
Legislation Cited: Corporations Act 2001 (Cth), ss 232, 233
Judiciary Act 1903 (Cth), s 35
Registered Clubs Act 1976 (NSW), s 41E
Supreme Court Act 1970 (NSW), s 101
Cases Cited: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513; [2007] FCAFC 146
Ballas v Theophilos (No. 1) (1957) 97 CLR 186
Be Financial Pty Ltd as trustee for the Financial Operations Trust v Das [2012] NSWCA 164
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Collier v Lancer (No. 2) [2013] NSWCA 186
Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563
Gibson v Drumm [2016] NSWCA 206
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267
Lukaszewicz v Polish Club Ltd [2019] NSWSC 446
Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1
Nanschild v Pratt [2011] NSWCA 85
Oertel v Crocker (1947) 75 CLR 261
Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543; [2006] SASC 306
Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195
The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Wykrota v Polish Club Ltd [2020] NSWSC 239
Category: Principal judgment
Parties: Kazimiera Lukaszewicz (First Appellant/First Cross-Respondent)
Mick Wykrota (Second Appellant/Second Cross-Respondent)
Dariusz Plust (Third Appellant/ Third Cross-Respondent)
Polish Club Limited (Respondent/Cross-Appellant)
Representation:
Counsel:
J Ireland QC (Solicitor Advocate) with M Castle and M J Davis (Appellants)
M McCulloch SC with R Notley (Respondent)
Solicitors:
Knap Lawyers…

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: [2020] NSWCA 99
Decision Date: 21 May 2020

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal and cross-appeal commenced as of right by the parties. The central dispute on appeal concerned only the availability of declaratory and injunctive relief, following a primary judgment.

The legal issues before the Court of Appeal were whether leave to appeal was required under section 101(2)(r) of the *Supreme Court Act 1970* (NSW), and if so, whether such leave should be granted. Specifically, the Court had to determine if the provision of declaratory relief alone, as a consequence of a finding of oppression, warranted leave to appeal, particularly where the underlying controversy between the parties had been resolved. The Court also considered whether a substantive injustice would arise if the primary judgment were allowed to stand, or if the issue presented was one of principle or public importance that was more than merely arguable.

The Court reasoned that the nature of the relief sought on appeal, being limited to declaratory and injunctive relief, meant that an appeal as of right was not available. Section 101(2)(r) of the *Supreme Court Act 1970* (NSW) requires leave to appeal in circumstances where the appeal concerns only the granting or refusal of certain types of relief, including declaratory relief. The Court found that the underlying controversy had been quelled by the primary judgment, and therefore, the threshold for granting leave to appeal based on substantive injustice or an issue of principle or public importance was not met.

Consequently, the Court ordered that the summons seeking leave to appeal and cross-appeal be dismissed, and that the purported notices of appeal and cross-appeal be dismissed as incompetent. No further order was made as to the costs of the appeal, cross-appeal, or applications for leave to appeal.

Orders

Orders of the court

(1) Order that the summons seeking leave to appeal and cross-appeal be dismissed.

(2) Order that the purported notices of appeal and cross-appeal be dismissed as incompetent.

(3) Order that there be no further order as to costs of the appeal, cross-appeal or applications for leave to appeal.

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:	Lukaszewicz v Polish Club Ltd [2020] NSWCA 99
Hearing dates:	21 May 2020
Date of orders:	21 May 2020
Decision date:	21 May 2020
Before:	Ward JA at [1]; White JA at [2]; Emmett AJA at [49]
Decision:	(1) Order that the summons seeking leave to appeal and cross-appeal be dismissed. (2) Order that the purported notices of appeal and cross-appeal be dismissed as incompetent. (3) Order that there be no further order as to costs of the appeal, cross-appeal or applications for leave to appeal.
Catchwords:	CIVIL PROCEDURE — Court of Appeal — Competency of appeal – where purported appeal and cross appeal commenced as of right – where only the availability of declaratory and injunctive relief in issue on appeal – where leave to appeal required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) CIVIL PROCEDURE — Court of Appeal — Leave to appeal – where the provision of declaratory relief alone as a result of a finding of oppression– where underlying controversy between the parties has been quelled – whether substantive injustice arises if primary judgment allowed to stand – whether issue of principle or public importance that is more than merely arguable if declaratory relief given is allowed to stand
Legislation Cited:	Corporations Act 2001 (Cth), ss 232, 233 Judiciary Act 1903 (Cth), s 35 Registered Clubs Act 1976 (NSW), s 41E Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513; [2007] FCAFC 146 Ballas v Theophilos (No. 1) (1957) 97 CLR 186 Be Financial Pty Ltd as trustee for the Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Collier v Lancer (No. 2) [2013] NSWCA 186 Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 Gibson v Drumm [2016] NSWCA 206 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 Lukaszewicz v Polish Club Ltd [2019] NSWSC 446 Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1 Nanschild v Pratt [2011] NSWCA 85 Oertel v Crocker (1947) 75 CLR 261 Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543; [2006] SASC 306 Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195 The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Wykrota v Polish Club Ltd [2020] NSWSC 239
Category:	Principal judgment
Parties:	Kazimiera Lukaszewicz (First Appellant/First Cross-Respondent) Mick Wykrota (Second Appellant/Second Cross-Respondent) Dariusz Plust (Third Appellant/ Third Cross-Respondent) Polish Club Limited (Respondent/Cross-Appellant)
Representation:	Counsel: J Ireland QC (Solicitor Advocate) with M Castle and M J Davis (Appellants) M McCulloch SC with R Notley (Respondent) Solicitors: Knap Lawyers…