Ozpinar v Assaily

[2001] NSWCA 23

CITATION:	OZPINAR v. ASSAILY [2001] NSWCA 23
FILE NUMBER(S):	CA 40739/99
HEARING DATE(S):	19/02/01
JUDGMENT DATE:	19 February 2001
PARTIES :	NERMIN OZPINAR (APPELLANT) GEORGE ASSAILY (RESPONDENT)
JUDGMENT OF:	Sheller JA at 16; Powell JA at 1; Rolfe AJA at 17

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 4879/97
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL:	A.J. Lidden (Appellant) G.J. Bateman (Respondent)
SOLICITORS:	L.J. Sharpe & Co. (Rockale) (Appellant) Hunt & Hunt (Respondent)
CATCHWORDS:	APPEAL AND NEW TRIAL - Appeal - From District Court - As of right - When lies - Final judgment - Amount or value of matter at issue - Practice - Affidavit to be filed - Contents - PRACTICE AND PROCEDURE - Appeal to Court of Appeal - Where restricted to a specified amount or value - Affidavit to be filed - Contents D
LEGISLATION CITED:	Supreme Court Act 1970 s.101(2)(r) Supreme Court Rules Pt 51 rr 8, 25 District Court Act 1973 s 127(2)(c)
CASES CITED:	Anthony v. Maglovenos (Court of Appeal 11 July 1978 (unreported))
DECISION:	Appeal dismissed as incompetent

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40739/99
DC 4879/97

SHELLER JA

POWELL JA

ROLFE AJA

19 February 2001

OZPINAR V. ASSAILY

JUDGMENT

1    POWELL JA: There is listed before the Court today what purports to be an appeal as of right from a judgment delivered and verdict found in the District Court by Naughton DCJ on 30 August 1999.

2    In the proceedings the Appellant, who was the plaintiff below, sought to recover damages in respect of what she claimed were injuries received in a motor vehicle accident, in which she was involved on 23 August 1994 - those injuries were claimed to be damage to the L4/5 disc in her back and low lumbar strain.

3    At the time of the accident the Appellant was 28 years or age or thereabouts. She was a married woman who had two comparatively young children, one aged 7 years, and the other aged 5 years.

4    The Appellant, who was a Turkish national, had come to this country in 1985 with her husband, whom she had married in 1985. Neither when living in Turkey nor during her time in Australia had the Appellant ever worked outside the home or sought any form of paid employment.

5    Although liability was admitted there was a significant dispute at trial as to the manner in which the motor vehicle accident occurred, the Appellant claiming that her car was struck from behind at a time when she was driving at speeds which have been variously estimated by her as being between 40 kph to 60 kph, and the Respondent claiming that, at the point of impact, the Appellant's vehicle was travelling at only about 10 kph.

6    The collision was reported by the Appellant to the Auburn Police Station on the day of the accident. In the report (CAB 57) which was tendered and became Exhibit 2 at…