Schepis v Commonwealth of Australia - [2013] NSWCA 354

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Schepis v Commonwealth of Australia [2013] NSWCA 354
Hearing dates: 18 September 2013
Decision date: 25 October 2013
Before: Beazley P at [1];
Leeming JA at [2]
Decision:
Leave to appeal refused, with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE - application for leave to appeal - proposed challenges to factual findings - proposed challenge to costs discretion based on "walk-away" offer by defendant - no substantial prospects of success - leave refused
Legislation Cited: Criminal Code (Cth)
Federal Court Rules 1979 (Cth)
Federal Court Rules 2011 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: A v State of New South Wales [2007] HCA 10; 230 CLR 500
Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224; (2002) 190 ALR 121
Australian Competition & Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192; 201 ALR 618
Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343
Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336
Seven Network Ltd v News Ltd [2007] FCA 1489; (2007) 244 ALR 374
Vasram v AMP Life Ltd [2002] FCA 1286
Whitney v Dream Developments Pty Ltd [2013] NSWCA 188
Category: Principal judgment
Parties: Anthony Demetrius Schepis (applicant)
Commonwealth of Australia (respondent)
Representation: Counsel:
Applicant (in person)
M Fisher (respondent)
Solicitors:
Australian Government Solicitor (respondent)

File Number(s): 2013/128951
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-06-01 00:00:00

Before:

Balla DCJ

File Number(s):

2010/100590

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Leeming JA. I have also viewed those portions of the video to which his Honour refers in his judgment. I agree with his Honour's observations as to the CCTV footage and with his understanding of the judgment of Balla DCJ. I agree with his Honour's reasons as to why leave to appeal should be refused and with his costs order.

LEEMING JA: This application for leave to appeal arises out of unusual factual circumstances, and has had a relatively complex procedural history. For those reasons, it has been appropriate to review the material more carefully, and to give reasons which are more detailed, than ordinarily would be the case.

The applicant was subjected to a bag search at Brisbane International Airport on 16 May 2008 upon his arrival from Fiji. The…

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.

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Details

Case: [2013] NSWCA 354
Decision Date: 25 October 2013

CaseChat Overview and Summary

The applicant, Schepis, sought leave to appeal from a decision of the Supreme Court of New South Wales. The dispute concerned an application to set aside or vary a judgment and costs order made against the applicant. The applicant's proposed grounds of appeal included challenges to factual findings made by the primary judge and a challenge to the costs discretion, which was based on a "walk-away" offer made by the respondent, the Commonwealth of Australia.

The primary legal issues before the Court of Appeal were whether the applicant had demonstrated substantial prospects of success on appeal, particularly in relation to the proposed challenges to the factual findings and the costs discretion. The Court was required to consider the relevant rules of the Uniform Civil Procedure Rules 2005 concerning the entry, setting aside, and variation of judgments and orders, including the time limits prescribed for such applications.

Beazley P and Leeming JA refused leave to appeal. Their Honours concluded that the applicant had not shown substantial prospects of success. The proposed challenges to the factual findings were unlikely to succeed, and the challenge to the costs discretion, in light of the "walk-away" offer, also lacked merit. The Court noted the time limits for setting aside or varying judgments under the Uniform Civil Procedure Rules 2005.

Consequently, leave to appeal was refused, and the applicant was ordered to pay the costs of the Commonwealth of Australia.

Orders

Orders of the court

Leave to appeal refused, with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Schepis v Commonwealth of Australia [2013] NSWCA 354
Hearing dates:	18 September 2013
Decision date:	25 October 2013
Before:	Beazley P at [1]; Leeming JA at [2]
Decision:	Leave to appeal refused, with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE - application for leave to appeal - proposed challenges to factual findings - proposed challenge to costs discretion based on "walk-away" offer by defendant - no substantial prospects of success - leave refused
Legislation Cited:	Criminal Code (Cth) Federal Court Rules 1979 (Cth) Federal Court Rules 2011 (Cth) Uniform Civil Procedure Rules 2005
Cases Cited:	A v State of New South Wales [2007] HCA 10; 230 CLR 500 Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224; (2002) 190 ALR 121 Australian Competition & Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192; 201 ALR 618 Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 Seven Network Ltd v News Ltd [2007] FCA 1489; (2007) 244 ALR 374 Vasram v AMP Life Ltd [2002] FCA 1286 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188
Category:	Principal judgment
Parties:	Anthony Demetrius Schepis (applicant) Commonwealth of Australia (respondent)
Representation:	Counsel: Applicant (in person) M Fisher (respondent) Solicitors: Australian Government Solicitor (respondent)
File Number(s):	2013/128951
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2012-06-01 00:00:00 Before: Balla DCJ File Number(s): 2010/100590