Melhem v Katter

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.