Melhem v Katter

Case [2021] NSWCA 273


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Melhem v Katter [2021] NSWCA 273
Hearing dates: 5 October 2021
Date of orders: 5 October 2021
Decision date: 05 October 2021
Before: Brereton JA at [1], [23];
McCallum JA at [21];
Garling J at [22]
Decision:

(1) Grant leave to the applicant to file an Amended Summons Seeking Leave to Appeal in the form initialled, dated this day and placed with the papers.

(2) Extend time to apply for leave to appeal to the date on which the Summons Seeking Leave to Appeal was filed.

(3) Grant leave to the applicant, insofar as leave be required, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), to commence the proceedings for leave to appeal and the consequent appeal.

(4) Grant leave to appeal.

(5) Allow the appeal.

(6) Set aside the orders made by the District Court on 5 November 2020.

(7) Remit the proceedings to the District Court to be dealt with according to law.

(8) Order that the respondents pay the applicant’s costs of the appeal.

Catchwords:

JUDGMENTS AND ORDERS – Enforcement – Appeal from setting aside of examination orders – Where District Court had given two inconsistent judgments – Where Court of Appeal previously prohibited District Court from taking any further steps in proceedings on basis that second judgment was valid – Where District Court on remittal considered itself to be functus officio – Whether District Court entirely prohibited from taking any further steps in the proceedings – Court of Appeal only quashed second judgment – Court of Appeal only prohibited steps on basis of validity of second judgment – Distinction between adjudication and enforcement – Appeal allowed

APPEALS – Right of appeal – Who may exercise – Felons – Application of Felons (Civil Proceedings) Act 1981 (NSW), s 4, in Court of Appeal

APPEALS – Leave to appeal – Whether leave required – Interlocutory decisions – Setting aside of examination orders – Decision had effect of finally disposing of proceedings – Evident merit to appeal – Leave granted

APPEALS – Procedure – Time limits – Extension of time – Where respondents on notice of intention to appeal prior to time elapsing – No prejudice identified – Extension granted

Legislation Cited:

Crimes Act 1900 (NSW), s 4

District Court Act 1973 (NSW), ss 44, 51

Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5

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

Uniform Civil Procedure Rules 2005 (NSW), r 38.2(3)

Cases Cited:

Chen v Zhang [2009] NSWCA 202

Clark v Robards [2016] NSWCA 187

Clark v State of New South Wales [2018] NSWCA 13

Clarke v Herrick [2020] NSWCA 71

Ford v Simes [2009] NSWCA 351

Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213

Melham v Katter [2013] NSWDC 203

Mr D v Ms P [2020] NSWCA 174

Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307

Potier v Attorney General in and for the…

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AGLC
Melhem v Katter [2021] NSWCA 273
Case
[2021] NSWCA 273
Decision Date

CaseChat Overview and Summary

The applicant, Melhem, appealed to the Court of Appeal of New South Wales against orders made by the District Court on 5 November 2020, which had set aside earlier examination orders. The dispute arose from the District Court having delivered two inconsistent judgments in the proceedings, leading to a previous Court of Appeal decision that prohibited the District Court from taking further steps on the basis that the second judgment was valid. Upon remittal, the District Court considered itself *functus officio*.

The primary legal issues before the Court of Appeal were whether the District Court was entirely prohibited from taking any further steps in the proceedings, and whether the applicant, a convicted felon, required leave under section 4 of the *Felons (Civil Proceedings) Act 1981* (NSW) to commence the appeal proceedings. The Court also considered whether leave to appeal was required for the setting aside of the examination orders, given their effect on the proceedings, and whether an extension of time to appeal was warranted.

The Court of Appeal reasoned that its previous orders had only quashed the second judgment and prohibited further steps based on the *validity* of that second judgment. It distinguished between the adjudication of a matter and its enforcement, concluding that the District Court was not entirely prohibited from taking further steps. The Court found that the setting aside of the examination orders had the effect of finally disposing of the proceedings, thus warranting leave to appeal, which was granted due to the evident merit of the appeal. The Court also granted an extension of time to apply for leave to appeal, noting that the respondents had notice of the intention to appeal and identified no prejudice. Leave was granted under section 4 of the *Felons (Civil Proceedings) Act 1981* (NSW) to commence the proceedings.

Consequently, the Court of Appeal allowed the appeal, set aside the District Court's orders of 5 November 2020, and remitted the proceedings to the District Court to be dealt with according to law. The respondents were ordered to pay the applicant's costs of the appeal.

Orders

Orders of the court

(1) Grant leave to the applicant to file an Amended Summons Seeking Leave to Appeal in the form initialled, dated this day and placed with the papers.

(2) Extend time to apply for leave to appeal to the date on which the Summons Seeking Leave to Appeal was filed.

(3) Grant leave to the applicant, insofar as leave be required, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), to commence the proceedings for leave to appeal and the consequent appeal.

(4) Grant leave to appeal.

(5) Allow the appeal.

(6) Set aside the orders made by the District Court on 5 November 2020.

(7) Remit the proceedings to the District Court to be dealt with according to law.

(8) Order that the respondents pay the applicant’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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