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Mahmoud v Sutherland

Mahmoud v Sutherland

Case [2012] NSWCA 306 26 September 2012

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mahmoud v Sutherland [2012] NSWCA 306
Hearing dates: 12 September 2012
Decision date: 26 September 2012
Before: Barrett JA (at [1]), Tobias AJA (at [54]), Blanch J (at [55])
Decision:
1. Order that the order of dismissal made by the District Court on 6 May 2011 be set aside insofar as it dismissed the appeal of Tosson Mahmoud against the costs order made against him by the Local Court on 20 April 2010.
2. Order that the appeal of Tosson Mahmoud against the said costs order be remitted to the District Court for determination according to law.
3. Order that the summons filed by Tosson Mahmoud in this Court on 4 October 2011 be otherwise dismissed.
4. No order as to costs of the proceedings in this Court.
[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: ADMINISTRATIVE LAW - judicial review - apprehended violence order - Local Court dismisses application for apprehended violence order and makes costs order against applicant - appeal by applicant to District Court dismissed - applicant seeks review of District Court's decision by Court of Appeal - scope of review limited to jurisdictional error - function of District Court on appeal by way of rehearing - no jurisdictional error with respect to decision on making of apprehended violence order - failure to address statutory pre-condition to existence of power to make costs order - jurisdictional error established in relation to the costs order.
Legislation Cited: Crimes (Appeal and Review) Act 2001, ss 18, 19
Crimes (Domestic and Personal Violence) Act 2007, ss 19(1), 20(1), 20(2), 84, 99
District Court Act 1973, ss 127, 176
Cases Cited: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192
DAR v Director of Public Prosecutions (Qld) [2008] QCA 309
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Garde v Dowd [2011] NSWCA 115
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Spanos v Lazaris [2008] NSWCA 74
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73
Texts Cited: Aronson, "Jurisdictional error without the tears", in Groves and Lee (eds), Australian Administrative Law - Fundamentals, Principles and Doctrines (2007)
Category: Principal judgment
Parties: Tasson Mahmoud - Plaintiff
Vincent Sutherland - First Defendant
District…

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 Mahmoud v Sutherland

Details

AGLC: Mahmoud v Sutherland [2012] NSWCA 306
Case: [2012] NSWCA 306
Decision Date: 26 September 2012

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application for judicial review by Tosson Mahmoud (the applicant) concerning a decision of the District Court. The District Court had dismissed the applicant's appeal against an apprehended violence order (AVO) and a costs order made against him by the Local Court. The applicant sought to challenge the District Court's decision, with the scope of review limited to jurisdictional error.

The legal issues before the Court of Appeal were whether the District Court had committed jurisdictional error in its decision to dismiss the applicant's appeal against the AVO, and whether it had similarly erred in its handling of the costs order made by the Local Court. The Court was required to consider the function of the District Court on an appeal by way of rehearing and the statutory preconditions for the exercise of power to make a costs order.

The Court of Appeal found that there was no jurisdictional error with respect to the District Court's decision on the making of the apprehended violence order. However, it determined that the District Court had made a jurisdictional error by failing to address a statutory pre-condition to the existence of its power to make a costs order. This failure meant that the District Court had not properly exercised its appellate jurisdiction in relation to the costs order.

Consequently, the Court of Appeal ordered that the District Court's order of dismissal be set aside insofar as it dismissed the applicant's appeal against the costs order made by the Local Court. The appeal against the costs order was remitted to the District Court for determination according to law, while the remainder of the applicant's summons in the Court of Appeal was dismissed. No order was made as to the costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

1. Order that the order of dismissal made by the District Court on 6 May 2011 be set aside insofar as it dismissed the appeal of Tosson Mahmoud against the costs order made against him by the Local Court on 20 April 2010.

2. Order that the appeal of Tosson Mahmoud against the said costs order be remitted to the District Court for determination according to law.

3. Order that the summons filed by Tosson Mahmoud in this Court on 4 October 2011 be otherwise dismissed.

4. No order as to costs of the proceedings in this Court.

[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.

Citations

AGLC Citation

Mahmoud v Sutherland [2012] NSWCA 306

Most Recent Citation

V'landys v Land and Environment Court of NSW [2012] NSWLEC 218

Cases citing this decision · 11 of 11 shown

Licha v Joseph
[2025] NSWCA 192 Para 6

…SW), to succeed on a judicial review of a decision of the District Court the applicants must establish jurisdictional error (see Mahmoud v Sutherland [2012] NSWCA 306 at [8] per Barrett JA, Tobias AJA and Blanch J agreeing).…
Smith v Blanch
[2025] NSWCA 188 Para 21

…nlivened and available to be exercised only if the Court has reached the specified state of satisfaction as to those matters ( Mahmoud v Sutherland [2012] NSWCA 306 at [21], [23] and [25]).”…
Attorney General for the State of New South Wales v Mahmoud
[2015] NSWSC 899

…ranted in respect of costs order and matter remitted to DC. Otherwise, appeal dismissed. Mahmoud v Sutherland [2012] NSWCA 306 24 October 2014 HCA (2012/309) AVO against Vincent Sutherland 11 February 2013 Application for special leave to appeal to HCA. Heydon J orders directions. Amended application for special le…
Dyason v Butterworth
[2015] NSWCA 52 Para 29

…In Mahmoud v Sutherland [2012] NSWCA 306 Barrett JA (Tobias AJA and Blanch J agreeing) explained the matters of which a court must be satisfied before making an APVO:…
Veness v Hodge
[2015] NSWCA 20 Para 4

…s enlivened and available to be exercised only if the Court has reached the specified state of satisfaction as to those matters (Mahmoud v Sutherland [2012] NSWCA 306 at [21], [23] and [25]).…
Ferris v Atherton (No 2)
[2014] NSWDC 273 Para 2

…should be applied. In my judgment in Mahmoud v Sutherland [2013] NSWDC 140, I referred to the decision of the Court of Appeal in Mahmoud v Sutherland [2012] NSWCA 306. The reason I referred to the Court of Appeal’s decision was that the Court of Appeal in that case, which involved an application for a apprehended p…
Firth v Director of Public Prosecutions
[2013] NSWCA 403 Para 1

…that that provision requires jurisdictional error to be demonstrated: see Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [10] ; Mahmoud v Sutherland [2012] NSWCA 306 at [7]-8] and [51]; and Landsman at [13] and [37].…
Landsman v Director of Public Prosecutions
[2013] NSWCA 369 Para 1

…n held that the provision requires jurisdictional error to be demonstrated: Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [10]; Mahmoud v Sutherland [2012] NSWCA 306 at [7]-[8] and [51] and as much was common ground when the summons for leave was heard. I agree with Macfarlan JA that by declining to submit a quest…
High Court Bulletin
[2013] HCAB 5

…[2012] NSWCA 306 Application Dismissed…
Tosson Mahmoud v Vincent Sutherland
[2013] NSWDC 140

…99(1), 99(2), 99(3). Cases Cited: Cachia v Hanes (1994) 179 CLR 403. DAR v Director of Public Prosecutions (Qld) [2008] QCA 309. Mahmoud v Sutherland [2012] NSWCA 306. Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166. Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 L…
V'landys v Land and Environment Court of NSW
[2012] NSWLEC 218 Para 1

…the valid exercise of a power: Spanos v Lazaris [2008] NSWCA 74 at [15] per Basten JA (Beazley and Bell JJA agreeing), cited in Mahmoud v Sutherland [2012] NSWCA 306 at [26] - [29]; Kirk at [66]. In other words, jurisdictional error is an error of law of such a nature that it renders the decision invalid as being…

View all 11 citing cases →

Cases cited in this decision · 11 of 11 shown

Garde v Dowd
[2011] NSWCA 115 Para 1

…al function forms part of the criminal jurisdiction of the District Court, with the result that s 176 of the District Court Act applies: Garde v Dowd [2011] NSWCA 115 at [9]. Section 176, which is within Part 4 headed "The Criminal Jurisdiction of the Court", is in these terms:…
Downey v Acting District Court Judge Boulton (No 5)
[2010] NSWCA 240 Para 133

…by this Court, but to limit their availability to cases involving jurisdictional error: see, eg, Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [133]-[134]. No greater intrusion on the powers of this Court would be constitutionally valid: Kirk v Industrial Relations Court of N…
Kirk v Industrial Court of New South Wales
[2010] HCA 1 Para 1

…Jurisdictional error of this kind was established in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531. The inferior court, by misconstruing a statutory provision, misapprehended the limits of its functions and powers and thereby made orders in circumstances where it had no power to do…
DAR v Director of Public Prosecutions (Qld)
[2008] QCA 309 Para 1

…at 109 per Dixon J) so that the appeal "becomes, in substance, a hearing of the case for a second time" ( DAR v Director of Public Prosecutions (Qld) [2008] QCA 309 at [9] per Keane JA).…
Federal Commissioner of Taxation v Futuris Corporation Ltd
[2008] HCA 32 Para 1

…In Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 at [134], Kirby J observed that the recognised "jurisdictional error" categories in Australia are not closed and that the following have been recognised by "a leading Australian academic authority on the subject" (Aronson…
Spanos v Lazaris
[2008] NSWCA 74 Para 1

…I turn to the issue of jurisdictional error described compendiously by Basten JA (Beazley and Bell JJA agreeing) in Spanos v Lazaris [2008] NSWCA 74 at [15] as "failure to comply with an essential precondition or limit to the valid exercise of a power, whether either the precondition or power arises under the gene…
Fox v Percy
[2003] HCA 22 Para 1

…In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23], Gleeson CJ, Gummow and Kirby JJ, referring to the requirements and limitations of an appeal by way of rehearing, said (at [23]):…
Allesch v Maunz
[2000] HCA 40 Para 1

…of that court had never been made. The focus must be on the question whether there was "some legal, factual or discretionary error": Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23].…
Craig v South Australia
[1995] HCA 58 Para 1

…In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, the High Court gave examples of situations in which an inferior court acts beyond jurisdiction by entertaining a matter outside the limits of its functions and powers. One of them was as follows (at 177-8):…
Da Costa v Cockburn Salvage & Trading Pty Ltd
[1970] HCA 43 Para 1

…evidence the Local Court received as appearing in the record of the proceedings before the Local Court: Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192 at 208. A right to a rehearing "smacks rather of original jurisdiction" ( Victorian Stevedoring and General Contracting Co Pty Lt…
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan
[1931] HCA 34 Para 1

…4 CLR 192 at 208. A right to a rehearing "smacks rather of original jurisdiction" ( Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 109 per Dixon J) so that the appeal "becomes, in substance, a hearing of the case for a second time" ( DAR v Director of Public…

Legislation cited in this decision · 4

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
19(1), 20(1), 20(2), 84, 99 6 mentions (from Para 1)
Crimes (Appeal and Review) Act 2001 (NSW)
18, 19 3 mentions (from Para 1)
District Court Act 1973 (NSW)
127, 176 3 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention

Medium Neutral Citation:	Mahmoud v Sutherland [2012] NSWCA 306
Hearing dates:	12 September 2012
Decision date:	26 September 2012
Before:	Barrett JA (at [1]), Tobias AJA (at [54]), Blanch J (at [55])
Decision:	1. Order that the order of dismissal made by the District Court on 6 May 2011 be set aside insofar as it dismissed the appeal of Tosson Mahmoud against the costs order made against him by the Local Court on 20 April 2010. 2. Order that the appeal of Tosson Mahmoud against the said costs order be remitted to the District Court for determination according to law. 3. Order that the summons filed by Tosson Mahmoud in this Court on 4 October 2011 be otherwise dismissed. 4. No order as to costs of the proceedings in this Court. [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:	ADMINISTRATIVE LAW - judicial review - apprehended violence order - Local Court dismisses application for apprehended violence order and makes costs order against applicant - appeal by applicant to District Court dismissed - applicant seeks review of District Court's decision by Court of Appeal - scope of review limited to jurisdictional error - function of District Court on appeal by way of rehearing - no jurisdictional error with respect to decision on making of apprehended violence order - failure to address statutory pre-condition to existence of power to make costs order - jurisdictional error established in relation to the costs order.
Legislation Cited:	Crimes (Appeal and Review) Act 2001, ss 18, 19 Crimes (Domestic and Personal Violence) Act 2007, ss 19(1), 20(1), 20(2), 84, 99 District Court Act 1973, ss 127, 176
Cases Cited:	Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192 DAR v Director of Public Prosecutions (Qld) [2008] QCA 309 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Garde v Dowd [2011] NSWCA 115 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Spanos v Lazaris [2008] NSWCA 74 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73
Texts Cited:	Aronson, "Jurisdictional error without the tears", in Groves and Lee (eds), Australian Administrative Law - Fundamentals, Principles and Doctrines (2007)
Category:	Principal judgment
Parties:	Tasson Mahmoud - Plaintiff Vincent Sutherland - First Defendant District…