Saberi v Bakhshizadeh

[2022] NSWCA 142

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Saberi v Bakhshizadeh [2022] NSWCA 142

Hearing dates:

5 August 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Before:

Macfarlan JA at [1];
Kirk JA at [16]

Decision:

(1) Notice of appeal filed on 23 February 2022 dismissed as incompetent, with costs.

(2) Summons seeking leave to appeal filed on 28 April 2022 dismissed with costs.

Catchwords:

COSTS — security for costs — whether plaintiff “ordinarily resident outside of Australia” — proceedings dismissed after non-provision of security — r 42.21(1)(a) and (3) of UCPR — application for leave to appeal dismissed — no arguable prospects of success on appeal

Legislation Cited:

Evidence Act 2005 (NSW) s 75

Uniform Civil Procedure Rules 2005 (NSW) r 42.21(1)(a)

Cases Cited:

Cheng v Motor Yacht Sales Australia Pty Ltdt/as The Boutique Boat Company [2022] NSWCA 118

Dogramaci v Director of Public Prosecutions (NSW) [2022] NSWCA 83

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Li v State of New South Wales [2013] NSWCA 165

Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235

PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 65 ALJR 642; [1991] HCA 36

Secretary of the Department of Planning, Industry and the Environment v Blacktown City Council [2021] NSWCA 145

Category:

Principal judgment

Parties:

Bahram Saberi (Applicant)
Samira Bakhshizadeh (Respondent)

Representation:

Counsel:
E Bartley (Respondent)

Solicitors:
O’Brien Criminal and Civil Solicitors (Respondent)

File Number(s):

2022/00125622
2021/00331209

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Before:

Robison DCJ (20 May 2021)
Smith SC DCJ (19 November 2021)

File Number(s):

2019/00138366

JUDGMENT

1. MACFARLAN JA: Before the Court is a purported notice of appeal and an application for leave to appeal. The latter relates to decisions of Robison DCJ of 20 May 2021 and Smith SC DCJ of 19 November 2021 and the former to Judge Smith’s decision only. As these decisions were interlocutory, the applicant requires leave to appeal. For the reasons appearing below, I propose that the application for leave to appeal be dismissed. In the absence of a grant of leave, the purported appeal proceedings should also be dismissed as incompetent. Costs should follow the event in relation to both.

2. The District Court action to which the decisions relate was a claim by the present applicant, Mr Bahram Saberi, against his former wife, Ms Samira Bakhshizadeh, for damages for malicious prosecution. The applicant alleged that the respondent made to the police false accusations of domestic violence by the applicant towards her, leading to his prosecution.

3. By his decision of 20 May 2021 Robison DCJ ordered that within 6 months the applicant provide security for her costs of the action in the sum of $40,000, the action to be stayed until that occurred. His Honour had the power to make that order by reason of his finding that the applicant was “ordinarily resident outside of Australia” (see r 42.21(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (the “UCPR”)). His Honour described the evidence and parties’ submissions in considerable detail but noted that his task of making findings was rendered difficult by the absence of any cross-examination on the parties’ affidavits. Nevertheless, on the limited material available to him, his Honour found that the applicant was ordinarily resident in Iran (the place of his birth), he having departed Australia in about November 2019 and not having returned to Australia by the time of the hearing on 19 and 20 May 2021 (nor has he done so since).

4. His Honour had regard to a number of considerations relevant to the exercise of his discretion, including the impecuniosity of both parties and the restrictions on travel arising out of the COVID-19 pandemic. Amongst the authorities to which his Honour had regard was PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 65 ALJR 642; [1991] HCA 36 where McHugh J, in a statement of particular relevance to the present case, said at 643:

“To make or refuse to make an order for security for costs involves the exercise of a discretionary judgment, that means that the Court exercising the discretion must weigh all the circumstances of the case.

…

However, for over 200 years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction.”

5. The applicant did not provide the security that Robison DCJ ordered, with the result that Smith SC DCJ in his judgment of 19 November 2021 ordered that the action be dismissed, with costs. His Honour recorded that the applicant had not provided the security, and did not propose to do so, and that instead the applicant argued that there should be a stay of his action for a further six months to enable him to return to Australia to pursue it.

6. His Honour considered a variety of factors relevant to the exercise of his discretion, including that the applicant did not adduce evidence of any effort on his part to obtain funds from a source other than employment or to return to Australia. His Honour concluded that the applicant did not have any genuine desire to return or reside in Australia for the purpose of pursuing his action and ordered that the action be dismissed with costs.

7. It is well established in this Court that “a grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable” (Cheng v Motor Yacht Sales Australia Pty Ltdt/as The Boutique Boat Company [2022] NSWCA 118 at [15]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]). In his submissions in support of his application for leave to appeal, the applicant did not identify any issue of principle or question of public importance which would arise on the appeal if leave were granted. Moreover, he did not identify any arguable injustice to him arising from the two decisions the subject of his application. In particular, he did not put any fairly arguable submission that any factual finding upon which either of the judges proceeded was erroneous, nor did he raise a fairly arguable case that either of the discretions exercised by their Honours was liable to be set aside in accordance with the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504–505.

8. In large measure the applicant’s lengthy submissions, both oral on his appearance before this Court by telephone from Iran and in writing, restated the submissions that he put and which were addressed in the District Court, without focussing on arguments that might found a successful appeal. In these circumstances it is unnecessary for this Court to address the detail of those submissions to the extent that they are not of arguable relevance and merit (see Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]; Secretary of the Department of Planning, Industry and the Environment v Blacktown City Council [2021] NSWCA 145; Dogramaci v Director of Public Prosecutions (NSW) [2022] NSWCA 83 at [6]).

9. Consistently with these principles, it suffices to refer to the following points raised by the applicant.

10. First, the applicant submitted that Robison DCJ should have found, on the basis of the applicant’s evidence, that he had no intention of staying in Iran “forever”. The relevant issue was however as to the applicant’s “ordinary residence” as at 20 May 2021 and, irrespective of the applicant’s long term intentions, his Honour was well justified in taking into account his lengthy absence from Australia (then since November 2019) and his evidence to the effect that he was living in Iran, to conclude that his “ordinary residence” was outside Australia.

11. His Honour relied in this context, inter alia, on a questionnaire completed by the applicant and dated 15 October 2020 stating that the applicant was living with his parents. The respondent’s affidavit, in a part not denied by the applicant, asserted that the applicant’s parents lived in Iran and have never visited Australia.

12. Secondly, the applicant complained that Robison DCJ had regard to a statement in the respondent’s affidavit that “[i]n or around November 2020, I was contacted by a family friend who lives in Iran and remains a mutual friend of myself and Bahram. This friend said words to me to the following effect: ‘I saw Bahram in Mashhad [in Iran] today, he told me that he is starting [an] exporting business in Khorassan [in Iran], and will be living in Iran permanently’”. His Honour was conscious that the name of the mutual friend was not given and the friend was only identified by his or her residency in Iran and by being a mutual friend of the parties but took the view that it had the “ring of truth about it” and was “not implausible”, and noted that it had not been the subject of cross-examination. Bearing in mind the latitude allowed in interlocutory proceedings in respect of the hearsay rule (s 75 Evidence Act 2005 (NSW)), I do not consider that his Honour’s reliance on the evidence raises a significant prospect of the applicant succeeding on an appeal if leave were to be granted. The evidence was arguably admissible and the weight to be given to it was a matter for his Honour.

13. Thirdly, the applicant complained that his Honour found that a letter written by a doctor and proffered by the applicant to the Court suggested that the applicant “might be working at least at the time of the letter which is 30 August 2021”. The inference was not a strong one as the doctor relevantly simply said that the applicant would need at least six months rehabilitation after knee surgery for “full recovery and return to work”. However, bearing in mind the limitations of the evidence available to his Honour (see [3] above) I do not consider it an error for his Honour to have attached some significance to the letter. It was a matter for his Honour whether he did so, not one for this Court to reconsider on an application such as the present.

14. In conclusion, I record my view that no “substantial reasons to allow an appellate review” have been shown and that the challenged decisions are not “attended with sufficient doubt to warrant [their] reconsideration” (Li v State of New South Wales [2013] NSWCA 165 at [5]).

15. For the reasons above, I propose the following orders:

1. Notice of appeal filed on 23 February 2022 dismissed as incompetent, with costs.

2. Summons seeking leave to appeal filed on 28 April 2022 dismissed with costs.

16. KIRK JA: I agree with the orders proposed by Macfarlan JA, and with his Honour’s reasons.

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Decision last updated: 11 August 2022