N'Ge-Sala v NSW Police Force

[2015] NSWCA 76

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	N’Ge-Sala v NSW Police Force [2015] NSWCA 76
Hearing dates:	16 March 2015
Date of orders:	16 March 2015
Decision date:	16 March 2015
Before:	Ward JA
Decision:	1.The appeal is dismissed as incompetent. 2.Mr N’Ge-Sala pay the State’s costs of the appeal proceedings.
Catchwords:	APPEAL – general principles – appeal from summary dismissal – interlocutory decision - requirement of leave to appeal – incompetency   COSTS – general rule that costs follow the event
Legislation Cited:	Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) [2001] FCA 237; (2001) 183 ALR 700 Page v McKensey [2004] NSWCA 437 Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1
Category:	Principal judgment
Parties:	Sonni Michael Angelo N’Ge-Sala (Appellant) NSW Police Force (Respondent)
Representation:	Counsel: Mr N’Ge-Sala (in person) M Hutchings Solicitors: Makinson & d'Apice Lawyers
File Number(s):	CA 2014/00370215
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Citation: [2014] NSWSC 1567 Date of Decision: 7 November 2014 Before: McCallum J File Number(s): 2011/405499

EX TEMPORE Judgment

1. WARD JA: In this matter, Mr N’Ge-Sala filed a notice of appeal on 17 December 2014. In that notice of appeal, Mr N’Ge-Sala appeals from a decision of McCallum J on 7 November 2014 in which her Honour summarily dismissed proceedings brought by Mr N’Ge-Sala against the New South Wales Police Force. Her Honour did so on the basis that it was within her power, either implicitly within the statutory powers to which her Honour had referred, namely s 56 and s 61 of the Civil Procedure Act2005 (NSW), or within the court’s inherent power to control proceedings.

2. Her Honour did so and dismissed the proceedings on the basis that Mr N’Ge-Sala was wholly failing to engage with the processes of the court or to conduct the hearing of his claim in an appropriate and rational way.

3. Mr N’Ge-Sala, as I said, filed a notice of appeal on 17 December 2014. The only appeal ground was set out in [2] and reads: “Perversion of justice, before the dismissal of my case I asked this Supreme Court to provide me with another judge.”

4. Mr N’Ge-Sala was informed when the matter was before the Registrar that he had no appeal as of right to the Court of Appeal from the summary dismissal by her Honour of his proceedings. That is the case pursuant to s 101(2) of the Supreme Court Act 1970 (NSW) which, relevantly, provides that “An appeal should not lie as of right to the Court of Appeal, except by leave of the Court of Appeal, from” a number of proceedings, one of which being proceedings for summary dismissal.

5. There have been a number of cases where it has been held that an order for summary dismissal or dismissing proceedings for want of prosecution or the like require leave to appeal. (see National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) [2001] FCA 237; (2001) 183 ALR 700; Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1 at 11; Page v McKensey [2004] NSWCA 437 at [30]; Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11]).

6. Mr N’Ge-Sala has made it very clear today that he does not intend to seek leave to appeal and that he does not accept that leave is required to appeal. He has made no application for leave to appeal. If Mr N’Ge-Sala wishes to maintain an appeal from the summary dismissal by her Honour of his proceedings, then he needs leave to appeal and he needs to file an application for leave to appeal. He has not done so.

7. In the circumstances the orders sought by the State of New South Wales in its notice of motion filed on 22 December 2014 should be made, namely that the appeal should be dismissed as incompetent. The State has sought its costs of the proceedings. In the circumstances I see no reason why costs should not follow the event. The orders that this court will make are as follows:

1. The appeal is dismissed as incompetent.

2. Mr N’Ge-Sala pay the State’s costs of the appeal proceedings.

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Decision last updated: 27 March 2015