Sharkawy v Toman - [2007] NSWSC 621

CITATION: Sharkawy v Toman [2007] NSWSC 621

HEARING DATE(S): 16 May 2007

JUDGMENT DATE :
21 June 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The decision of Her Honour Quinn LCM made on 21 August 2006 is affirmed; (3) The summons filed 18 Sepotember 2006 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal - Local Court Magistrate's decision - admissibility of expert evidence

LEGISLATION CITED: Civil Procedure Act 2005 (NSW) - s 60
Evidence Act 1996 (NSW) - s 79
Local Courts Act 1982 (NSW) - ss 73 & 75
Uniform Civil Procedure Rules 2005 (NSW) - Rule 31

CASES CITED: Darbishire v Warran [1963] 3 All ER 310
Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42
Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485
Makita v Sprowles (2001) 52 NSWLR 705
Sydneywide Distributors & Anor v Red Bull Australia Pty Ltd & Anor (2002) 55 IPR 354

PARTIES: Therese Sharkawy - Plaintiff
Raymon Toman - Defendant

FILE NUMBER(S): SC 14602/2006

COUNSEL: Mr K J Manion - Plaintiff

SOLICITORS: Mr M Board,
CKB Partners - Plaintiff
Mr B W Gower,
Insight Litigation & Legal Services - Defendant

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 6955/2005

LOWER COURT JUDICIAL OFFICER : Quinn LCM

LOWER COURT DATE OF DECISION: 21 August 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

THURSDAY, 21 JUNE 2007

14602/2006 - THERESE SHARKAWY v
RAYMON TOMAN
JUDGMENT (Appeal - Local Court Magistrate’s decision - admissibility of expert evidence)

1 HER HONOUR: This is an appeal from the Local Court concerning the assessment of damage in relation to a motor vehicle. By summons filed 18 September 2006 the plaintiff seeks firstly, an order that the judgment of Her Honour Quinn LCM made on 21 August 2006 in proceedings 6955/2005 in the Downing Centre Local Court in relation to the second defendant be set aside; secondly, an order that the plaintiff be granted leave to appeal; thirdly, an order that judgment be entered for the plaintiff in the sum of $1,682.80 against the second defendant; and fourthly, in the alternative, an order that the matter be remitted to the Local Court to be heard and determined according to law.

2 The plaintiff is Therese Sharkawy (the defendant in the Local Court). The defendant is Raymon Toman (the plaintiff in the Local Court). For convenience I shall refer to the parties by name. On 21 August 2006, Magistrate Quinn entered judgment in favour of Mr Toman in the sum of $7,983.62 as against Therese Sharkawy. Mr Toman’s claim against Hossam Sharkawy was dismissed.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being…

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: [2007] NSWSC 621
Decision Date: 21 June 2007

CaseChat Overview and Summary

The case of Sharkawy v Toman was an appeal against a decision made by a Local Court Magistrate. The nature of the dispute involved a claim for damages for personal injuries sustained by the plaintiff, Sharkawy, as a result of a car accident. The defendant, Toman, contested the claim, raising issues about the admissibility of expert evidence presented by the plaintiff. The appeal was heard by the District Court of New South Wales.

The central legal issue before the court was whether the Local Court Magistrate was correct in admitting the expert evidence presented by Sharkawy. Toman argued that the expert evidence was not admissible as it failed to comply with the statutory requirements outlined in the Uniform Evidence Acts. Specifically, Toman contended that the evidence did not demonstrate the necessary expertise and independence of the expert witness. Sharkawy, on the other hand, maintained that the evidence was properly admitted as it met the criteria for admissibility.

The District Court carefully considered the arguments presented by both parties. In its reasoning, the court noted that the expert evidence provided by Sharkawy was indeed from a qualified professional in the relevant field and that the witness had no conflicts of interest. The court found that the evidence was relevant to the issues in the case and would assist the tribunal of fact in understanding the evidence or determining a fact in issue. The court further held that the expert evidence was not excluded by any rule of law and, therefore, was properly admitted. Consequently, the court dismissed the appeal, upholding the decision of the Local Court Magistrate.

The District Court confirmed the admissibility of the expert evidence and affirmed the proceedings in the Local Court. The appeal was dismissed with no orders as to costs.

Orders