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: Clark v Robards [2016] NSWCA 187
Clark v State of New South Wales [2018] NSWCA 13
Clarke v Herrick [2020] NSWCA 71
Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213
Melham v Katter [2013] NSWDC 203
Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307
Potier v Attorney General in and for the…
Continue reading Melhem v Katter
Sign in free to access the full text
- AGLC
- Melhem v Katter [2021] NSWCA 273
- Case
- [2021] NSWCA 273
- Decision Date
CaseChat Overview and Summary
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
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.