Saqa v Bainivalu - [2005] NSWSC 1091

CITATION:
Saqa v Bainivalu [2005] NSWSC 1091

HEARING DATE(S): 24 October 2005

JUDGMENT DATE :

28 October 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Michael Grove J at 1

DECISION:
PLAINTIFF'S MOTION DISMISSED

CATCHWORDS:
REVIEW OF DECISION BY REGISTRAR - REFUSAL OF EXTENSION OF TIME FOR APPEAL - SMALL CLAIMS DIVISION OF LOCAL COURT - STATUTORY LIMITATION ON AVAILABLE GROUNDS OF APPEAL - NO PROSPECT OF ESTABLISHING LACK OF JURISDICTION OR DENIAL OF NATURAL JUSTICE - GRANT OF EXTENSION FUTILE

LEGISLATION CITED:
Local Courts (Civil Claims) Act 1970

CASES CITED:
Australian Broadcasting Tribunal v Bond 1990 170 CLR 321
Horsley v Phillips Fine Art Auctioneers NSWSC (Santow J) unreported 5/9/95
Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153
Soulemezis v Dudley (Holdings) Pty Ltd 1987 10 NSWLR 247

PARTIES:
Metuisela Saqa v Frances Bainivalu

FILE NUMBER(S):
SC 14025/05

COUNSEL:
T. Wong (Plaintiff)
U. Coustas, solicitor (Defendant)

SOLICITORS:
Gilbert & Tobin (Plaintiff)
Coustas & Co (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 28 October 2005

14025/05 METUISELA SAQA v FRANCES BAINIVALU

JUDGMENT

1 HIS HONOUR: The motion before the Court seeks review of a decision by Assistant Registrar Howe, the making of an order for extension of time having been declined by him and, for leave to file a further amended summons in the form of a submitted draft.

2 It is necessary to sketch some background to the dispute. The parties are of Fijian ancestry. On 20 April 2003 the defendant gave birth to a son, Abraham Isaiah Bainivalu. The father of the child is Atunaisa Saqa. He is the son of the plaintiff Metuisela Saqa. The parents of Abraham are not married.

3 On 23 April, after the discharge of the defendant from hospital where she had given birth, a request was communicated to her to see the baby, as a result of which on 24 April the plaintiff and a group of people including Atunaisa Saqa and other family members visited the home of the defendant’s sister where the defendant, her mother and the infant were present.

4 The visitors brought with them some items which are foundational to the litigated dispute. These were a carved whale’s tooth, four plaited tapa cloths and four woven woollen mats.

5 It can be noted that the defendant’s father was not present when the visitors came. The plaintiff was witnessed to put the whale’s tooth around Abraham’s neck and the child was seen swaddled in a tapa. Thereafter a dispute arose concerning the right of the plaintiff (paternal grandfather) to name the baby. When the visitors left they did not take with them the above described items.

6 In May 2003 the defendant presented the baby at a dedication ceremony. At such a ceremony a pastor is present and prayers are offered. During the ceremony the tapa cloths and the mats were spread on the floor. After the ceremony these, together with the whale’s tooth…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saqa v Bainivalu

Details

AGLC: Saqa v Bainivalu [2005] NSWSC 1091
Case: [2005] NSWSC 1091
Decision Date: 28 October 2005

CaseChat Overview and Summary

In the case of Saqa v Bainivalu, the appellant, Saqa, sought an extension of time to appeal a decision made in the Small Claims Division of the Local Court. The respondent, Bainivalu, opposed the application. The crux of the dispute revolved around the timeliness of Saqa's appeal and whether the grounds advanced for the extension were permissible under the statutory framework.

The primary legal issue before the court was whether the appellant had demonstrated a valid reason for the delay in lodging the appeal, and if the grounds of appeal were within the statutory limitations. The court also had to determine if there was a prospect of Saqa establishing that the Local Court lacked jurisdiction or had denied natural justice, as these are the only grounds that could potentially justify an extension of time under the applicable legislation.

The court examined the statutory provisions governing appeals and the circumstances of the case. It found that Saqa had not presented a compelling case for an extension of time. The court noted that the grounds of appeal proposed by Saqa did not fall within the narrow exceptions permitted by statute and concluded that there was no realistic prospect of establishing that the Local Court lacked jurisdiction or had denied natural justice. Consequently, the court held that granting an extension of time would be futile. The application for an extension of time was dismissed.

The court did not make any further orders beyond dismissing the application for an extension of time. Saqa's appeal was therefore barred due to the untimeliness of the application.

Orders