Najib Altos v Fairfield Liverpool Legal Pty Ltd

[2012] NSWCA 279

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Najib Altos v Fairfield Liverpool Legal Pty Ltd [2012] NSWCA 279

Hearing dates:

17 August 2012

Decision date:

17 August 2012

Before:

Macfarlan JA
Sackville AJA

Decision:

1. Dismiss the Notice of Appeal filed on 14 May 2012 as incompetent.

2. Dismiss the Summons seeking leave to appeal filed on 14 June 2012.

3. The applicant to pay the respondent's costs of its notice of motion and of the application for leave to appeal.

[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.]

Legislation Cited:

District Court Act 1973
Uniform Civil Procedure Rules 2005

Cases Cited:

Gillard v Hunter Wire Products (No 2) [2001] NSWCA 450
Najib Benjamin Altos v Fairfield Liverpool Legal Pty Ltd (NSWDC, 14 February 2012, Gibb DCJ)

Category:

Procedural and other rulings

Parties:

Najib Bejamin Altos (Applicant)
Fairfield Liverpool Legal Pty Ltd (Respondent)

Representation:

Counsel:
Applicant appeared in person
Dominic Priestley (Respondent)
Solicitors:
Applicant N/A
Bruce Alexander Yeldham (Respondent)

File Number(s):

2012/70608 2012/187018

 Decision under appeal 

Date of Decision:

2012-02-14 00:00:00

Before:

Gibb DCJ

File Number(s):

2010 / 358114

THE COURT:

1. The unsuccessful plaintiff in proceedings in the District Court (to whom I shall refer as "the applicant") has filed a notice of appeal and a summons seeking leave to appeal from the decision of the District Court (Gibb DCJ).

1. The primary Judge dismissed proceedings brought by the applicant against his former solicitors ("the respondent") seeking damages for negligence and breach of retainer. The allegations of professional negligence were based on the respondent's conduct of a Workers Compensation claim brought on behalf of the applicant and which led to a determination by an arbitrator of the Workers Compensation Commission on 21 November 2005. The applicant alleged that the solicitors had breached their duty by failing to identify and inform the Arbitrator of an applicable industrial award which was relevant to the calculation of the applicant's weekly Workers Compensation entitlement. In addition, the applicant claimed that the respondent had negligently conducted proceedings in the Supreme Court seeking judicial review of the Arbitrator's decision, resulting in the applicant incurring unnecessary legal costs.

1. The District Court proceedings were heard over three days. The primary Judge delivered a lengthy judgment on 14 February 2012 finding in favour of the respondent: Najib Benjamin Altos v Fairfield Liverpool Legal Pty Ltd (NSWDC, 14 February 2012, Gibb DCJ). Her Honour rejected the applicant's claim in relation to the worker's compensation proceedings on the ground that even if the alleged negligence of the respondent had not occurred, the applicant would not have been in any better position. Her Honour rejected the second claim on the ground that it was the applicant's own decision to institute the Supreme Court proceedings. Accordingly, her Honour entered judgment for the respondent against the applicant and ordered the applicant to pay the respondent's costs.

1. On 2 March 2012, the applicant filed a Notice of Intention to Appeal. On 14 May 2012, he filed a Notice of Appeal.

1. On 7 June 2012, the respondent filed a Notice of Motion and a supporting affidavit seeking an order that the appeal be dismissed as incompetent pursuant to Uniform Civil Procedure Rules ("UCPR"), r 51.41. The respondent contended that less than $100,000 was in dispute in the purported appeal and that, accordingly, the applicant required leave to appeal by s 127(2) of the District Court Act 1973. The respondent also contended that the Notice of Appeal did not comply in a number of respects with UCPR, r 51.18, which sets out the requirements for a notice of appeal.

1. The applicant then filed a Summons seeking leave to appeal on 14 June 2012. He subsequently filed an affidavit in support of his application for leave to appeal.

1. The respondent's objection to competency of the appeal and the application for leave to appeal have been heard together.

1. The respondent has correctly submitted that leave to appeal is required because a sum of less than $100,000 is realistically at issue in the appeal (see Gillard v Hunter Wire Products (No 2) [2001] NSWCA 450, at [11], per Priestley JA and Sperling J). The judgment of the primary Judge demonstrates that the quantum of the applicant's first claim (relating to his workers compensation entitlements) could not have exceeded $4,280. The judgment also demonstrates that the applicant's second claim (relating to the judicial review proceedings) could not have resulted in damages (independently of any interest calculation) exceeding $11,082.

1. The applicant handed up a handwritten document headed "Summary of Costs" which purports to show that the appeal involves a sum greater than $100,000. However, the document incorporates amounts which do not relate to issues arising on the appeal. It therefore does not detract from the judgment of the District Court which indicates that less than $100,000 is in issue and therefore the applicant requires leave to appeal.

1. In support of his application for leave, the applicant has read an affidavit sworn by him on 25 June 2012. He also relies on a handwritten document described as "Summary of Argument". In addition he has made oral submissions with the assistance of an interpreter. It has been explained to the applicant that the critical question for this Court is whether he is able to identify an error made by the primary Judge in her decision. Neither the affidavit nor the Summary of Argument identifies any error of law or of fact by the primary Judge that would warrant the grant of leave to appeal. The applicant's oral submissions did not advance his case.

The following orders should be made:

1.Dismiss the Notice of Appeal, filed on 14 May 2012, as incompetent.

2.Dismiss the Summons seeking leave to appeal, filed on 14 June 2012.

3.Order the applicant to pay the respondent's costs of its notice of motion and of the application for leave to appeal.

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Decision last updated: 06 September 2012