Nouri v Australian Capital Territory

[2019] ACTCA 21

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Nouri v Australian Capital Territory

Citation:

[2019] ACTCA 21

Hearing Date:

6 February 2019

DecisionDate:

6 February 2019

Before:

Burns J

Decision:

See [7]-[8]

Catchwords:

APPEAL – Application for certain documents to be included in the appeal papers – the affidavits were relied upon by the plaintiffs in an interlocutory application – whether the affidavits were before the trial judge at trial

Parties:

Einas Nouri (First Appellant)

Musab Shaor (Second Appellant)

Australian Capital Territory (Respondent)

Representation:

Counsel

A Campbell (First and Second Appellant)

D Higgs (Respondent)

Solicitors

Gerard Malouf & Partners (First and Second Appellant)

ACT Government Solicitor (Respondent)

File Number:

ACTCA 60 of 2018

BURNS J:

1. I have before me an application dated 24 December 2018 filed on behalf of the appellants. On its face the application seeks orders that an affidavit of the first plaintiff filed on 18 April 2017, an affidavit of the second plaintiff filed on the same date, and a transcript of the proceedings on 26 April 2017 be included in the appeal papers.

1. The affidavits to which I have referred and which are the subject of the application, were relied upon by the plaintiffs, as they then were, in an interlocutory application before the trial judge, which took place on 26 April 2017. Subsequently, the matter proceeded to trial before the same judge. It is not disputed that in the course of the trial the legal representatives of the plaintiffs did not seek to read those affidavits in the course of the trial, and did not seek to tender those affidavits.

1. It is submitted by Mr Campbell on behalf of the appellants that the material was in effect before the trial judge because, firstly, the material was relied upon in the interlocutory application to which I have referred, and secondly because there was some reference made to the interlocutory proceedings in the opening of Mr Higgs, who was Senior Counsel for the defendants in the trial.

1. In my opinion, these submissions should be rejected. The application, which was before his Honour on 26 April 2017, was apparently a discrete application, that is effectively separate proceedings to the final trial. The references by Mr Higgs to the earlier proceedings, set out in the affidavit of Mr Saric affirmed on 21 December 2018, are clearly references in passing. Indeed these references were based upon the submissions by Mr Higgs, which have not been the subject of criticism by Mr Campbell in reply, were made for a particular purpose, being whether the proceedings could or should continue at that time.

1. In my opinion, the evidence clearly shows that the material, the subject of the present application, that is the affidavits of the first and second plaintiff, was not in evidence before the trial judge. Nor was there any reason why the trial judge should have taken account of any transcript of the proceedings on 26 April 2017 when he came to give his decision at the trial.

1. The application, in my opinion, is misconceived. It is not an application to have material, which was before the trial judge included in the appeal books. It is in effect an application to put further evidence before the Court of Appeal, which was not before the trial judge. That should be the subject of a separate application by the appellants if they choose to pursue that matter. It is not a matter, in any event, which a single judge can address in the exercise of the jurisdiction of the Court of Appeal.

1. The orders that I make are that the application will be dismissed.

1. I will order that the appellants pay the respondent's costs of the application.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: