Prouten v Buxton

[2024] NSWCA 262

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Prouten v Buxton [2024] NSWCA 262

Hearing dates:

28 October 2024

Date of orders:

28 October 2024

Decision date:

28 October 2024

Before:

Basten AJA

Decision:

(1)    The notice of appeal filed on 4 September 2024 be struck out.

(2)    The appellant to pay the respondent's costs of the motion.

Catchwords:

CIVIL PROCEDURE – appeal – leave to appeal – notice of appeal filed – satisfaction of threshold to appeal without leave – claim in defamation dismissed at trial – contingent assessment of damages well below threshold – pro forma certificate by solicitor

Legislation Cited:

District Court Act 1973 (NSW), s 127

Uniform Civil Procedure Rules 2005 (NSW), r 51.22

Category:

Procedural rulings

Parties:

Sandra Prouten (Appellant)
Anthony Buxton (Respondent)

Representation:

Counsel:
J Levine (Appellant)
M Cowden (Respondent)

Solicitors:
Matrix Legal (Appellant)
Moray & Agnew Lawyers (Respondent)

File Number(s):

2024/235644

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court New South Wales

Jurisdiction:

Civil

Citation:

[2024] NSWDC 182

Date of Decision:

4 June 2024

Before:

Gibson DCJ

File Number(s):

2020/192782

JUDGMENT

1. BASTEN AJA: In this matter the respondent, being the applicant on a notice of motion, sought to have a notice of appeal struck out on two bases. The first was that it was filed late. That matter may now be put to one side as an affidavit explaining the delay has been read and has been accepted as sufficient by the respondent on the appeal. If necessary, the Court will make an order dealing with that matter. Secondly, the respondent seeks to challenge the competency of the appeal on the basis that it does not involve a matter where the amount in dispute exceeds $100,000 as required by the District Court Act 1973 (NSW), s 127(2)(c).

2. The question is whether the plaintiff in the District Court who brought proceedings in defamation which proceedings were unsuccessful, would have received, in the event that the claim were upheld, an amount by way of damages exceeding the threshold. Gibson DCJ, who presided at the trial, assessed the likely damages on a contingent basis (in the event that she was wrong in dismissing the proceedings) in an amount of $15,000. ^[1] There has been significant discussion as to whether or not that assessment was correct. It is for the appellant to demonstrate that the amount was not only greater than $15,000, but in the order of seven times that figure in order to justify filing a notice of appeal as of right. The notice of appeal contained a pro forma certificate under Uniform Civil Procedure Rules 2005 (NSW), r 51.22.

   1. Prouten v Buxton [2024] NSWDC 182 (4 June 2024) at [239].

3. The issues which have to be considered in relation to that assessment are not the subject of evidence before this Court, and the parties have, to a large extent, relied upon the findings made by the trial judge. The claim arises from a post on Facebook which appeared…