Schepis v Commonwealth of Australia - [2012] NSWCA 398

Court of Appeal

New South Wales

Case Title: Schepis v Commonwealth of Australia

Medium Neutral Citation: [2012] NSWCA 398

Hearing Date(s): 19 November 2012

Decision Date: 05 December 2012

Before: Campbell JA

Decision:
(1) Dismiss the appeal purportedly commenced by Notice of Appeal filed 22 August 2012 as incompetent.

(2) Order Appellant to pay costs of the Respondent of the appeal, and of the Notice of Motion filed 19 September 2012.

[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: APPEAL AND NEW TRIAL - Court of Appeal (jurisdiction and powers) - appeal from District Court - whether appeal brought as of right - whether matter at issue amounting to a value of $100,000 or more - affidavit filed in connection with Notice of Appeal insufficient to establish monetary threshold - reliance on evidence not before trial judge and not meeting tests for admission as fresh or further evidence on appeal cannot establish material facts - appeal dismissed as incompetent

APPEAL AND NEW TRIAL - Court of Appeal (jurisdiction and powers) - appeal from District Court - motion to dismiss appeal as frivolous and vexatious - proper course to hear dismissal application at time of hearing of appeal - motion not granted on that ground

Legislation Cited: Civil Liability Act 2003 (Qld)
Civil Liability Regulation 2003 (Qld)
District Court Act 1973
Uniform Civil Procedure Rules

Cases Cited: Bracks v Smyth-Kirk [2009] NSWCA 401
Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290
Coshott v Shipton Lodge Cobbitty Pty Ltd [2006] NSWCA 316
Gurr v Robinson (NSW Court of Appeal, 10 February 1986, unreported)
Harbrett Pty Ltd v Susanne Ruth Butler (NSW Court of Appeal, 14 December 1989, unreported);
Jensen v Ray [2011] NSWCA 247
Kassem v Colonial Mutual General Insurance Company Ltd [2001] NSWCA 38
Ozpinar v Assaily [2001] NSWCA 23
Pawlowska v Zajglic [2011] NSWCA 118
Trad v Harbour Radio Pty Ltd [2010] NSWCA 41
Wall v Wall [1994] NSWCA 336

Category: Interlocutory applications

Parties: Commonwealth of Australia (Applicant)
Anthony Demetrius Schepis (Respondent)

Representation

- Counsel: Counsel:
Ms M Fisher (Applicant)
In person (Respondent)

- Solicitors: Solicitors:
Australian Government Solicitor (Applicant)
In person (Respondent)

File Number(s): 2012/196679

JUDGMENT

CAMPBELL JA:

Nature of the Application

The Appellant was subjected to a bag search by a customs officer at Brisbane International Airport on 16 May 2008. It appears that the Appellant was less than totally calm during that search. He was (ultimately) charged with an offence of intimidation of a Commonwealth public official. A magistrate dismissed the charge. The Appellant then brought a civil claim in the District Court in Sydney in which he sued (ultimately) 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: [2012] NSWCA 398
Decision Date: 05 December 2012

CaseChat Overview and Summary

The appeal before the Court of Appeal concerned an attempt by the appellant, Schepis, to appeal a decision from the District Court against the Commonwealth of Australia. The central dispute revolved around whether the appeal was competent, specifically whether it met the jurisdictional threshold for an appeal as of right.

The primary legal issue before the Court of Appeal was whether the appeal from the District Court was brought as of right, which requires the matter at issue to amount to a value of $100,000 or more. The court had to determine if the appellant had sufficiently established this monetary threshold, and whether reliance on evidence not presented to the trial judge could satisfy this requirement. A secondary issue involved a motion to dismiss the appeal as frivolous and vexatious, and the proper procedure for dealing with such a motion.

Campbell JA reasoned that an affidavit filed in connection with the Notice of Appeal was insufficient to establish the requisite monetary threshold. The court held that reliance on evidence not before the trial judge, and which did not meet the tests for admission as fresh or further evidence on appeal, could not be used to establish the material facts necessary to found jurisdiction. Consequently, the appeal was dismissed as incompetent. The motion to dismiss the appeal as frivolous and vexatious was not granted on that specific ground, with the court indicating the proper course was to hear such an application at the time of the appeal hearing.

The Court of Appeal ordered that the appeal purportedly commenced by the Notice of Appeal filed on 22 August 2012 be dismissed as incompetent. The appellant was also ordered to pay the costs of the respondent for both the appeal and the Notice of Motion filed on 19 September 2012.

Orders

Orders of the court

(1) Dismiss the appeal purportedly commenced by Notice of Appeal filed 22 August 2012 as incompetent.

(2) Order Appellant to pay costs of the Respondent of the appeal, and of the Notice of Motion filed 19 September 2012.

[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.

Case Title:	Schepis v Commonwealth of Australia
Medium Neutral Citation:	[2012] NSWCA 398
Hearing Date(s):	19 November 2012
Decision Date:	05 December 2012
Before:	Campbell JA
Decision:	(1) Dismiss the appeal purportedly commenced by Notice of Appeal filed 22 August 2012 as incompetent. (2) Order Appellant to pay costs of the Respondent of the appeal, and of the Notice of Motion filed 19 September 2012. [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:	APPEAL AND NEW TRIAL - Court of Appeal (jurisdiction and powers) - appeal from District Court - whether appeal brought as of right - whether matter at issue amounting to a value of $100,000 or more - affidavit filed in connection with Notice of Appeal insufficient to establish monetary threshold - reliance on evidence not before trial judge and not meeting tests for admission as fresh or further evidence on appeal cannot establish material facts - appeal dismissed as incompetent APPEAL AND NEW TRIAL - Court of Appeal (jurisdiction and powers) - appeal from District Court - motion to dismiss appeal as frivolous and vexatious - proper course to hear dismissal application at time of hearing of appeal - motion not granted on that ground
Legislation Cited:	Civil Liability Act 2003 (Qld) Civil Liability Regulation 2003 (Qld) District Court Act 1973 Uniform Civil Procedure Rules
Cases Cited:	Bracks v Smyth-Kirk [2009] NSWCA 401 Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290 Coshott v Shipton Lodge Cobbitty Pty Ltd [2006] NSWCA 316 Gurr v Robinson (NSW Court of Appeal, 10 February 1986, unreported) Harbrett Pty Ltd v Susanne Ruth Butler (NSW Court of Appeal, 14 December 1989, unreported); Jensen v Ray [2011] NSWCA 247 Kassem v Colonial Mutual General Insurance Company Ltd [2001] NSWCA 38 Ozpinar v Assaily [2001] NSWCA 23 Pawlowska v Zajglic [2011] NSWCA 118 Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Wall v Wall [1994] NSWCA 336
Category:	Interlocutory applications
Parties:	Commonwealth of Australia (Applicant) Anthony Demetrius Schepis (Respondent)
Representation
- Counsel:	Counsel: Ms M Fisher (Applicant) In person (Respondent)
- Solicitors:	Solicitors: Australian Government Solicitor (Applicant) In person (Respondent)
File Number(s):	2012/196679