Sharma v Shandil - [2011] NSWCA 155

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales

Case Title: Sharma v Shandil

Medium Neutral Citation: [2011] NSWCA 155

Hearing Date(s): 30 May 2011

Decision Date: 30 May 2011

Jurisdiction:

Before:
Allsop P at 1, Sackville AJA at 9

Decision:
Application for leave to appeal dismissed 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:
APPEAL - application for leave - refusal of primary judge to allow withdrawal of concession by counsel - need to prove that counsel had been overborne - no reasonable prospects of success.

Legislation Cited:

Cases Cited:
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588

Texts Cited:

Category: Principal judgment

Parties:
Sunil Sharma (Applicant)
Ashok Shandil (Respondent)

Representation

- Counsel:
Counsel:
Mr K Smark SC, Ms S Chrysanthou (Applicant)
Mr C A Evatt, Mr R Rasmussen (Respondent)

- Solicitors:
Solicitors:
Kalantzis Lawyers (Applicant)
Brydens Law Office (Respondent)

File number(s): 2010/422009

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Gibson DCJ

- Date of Decision: 08 December 2010

- Citation: Shandil v Sharma [2010] NSWDC 273

- Court File Number(s) 2009/4920

Publication Restriction:

JUDGMENT

ALLSOP P: This is an application for leave to appeal from orders for judgment in a defamation case in the District Court. The defamation found to have occurred arose from publication of allegations of forgery made by the defendant (applicant) in relation to the plaintiff (respondent) at a parents and citizens (P & C) meeting of a school teaching the Hindi language. The plaintiff and the defendant, were members of the P & C committee and members of the Indian-Australian community in Sydney. The learned primary judge, Gibson DCJ, heard five days of evidence and a number of days of submissions and ordered the entry of judgment in the sum of $80,000 plus costs.
Three substantive grounds of appeal were put forward as the basis for leave. I will deal with them in the order in which they were presented in argument today. The three grounds reflect ground 1, ground 5 and grounds 2, 3 and 4 in the draft notice of appeal dated 8 March 2011 and filed with the papers. Ground 1 identifies a putative complaint that the primary judge erred in finding that the plaintiff proved that the matter complained of had been published. I am unpersuaded of any likely prospects of success in this respect. The question of publication involved the assessment over a period of days of a number of witnesses in the context…

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 Sharma v Shandil

Details

AGLC: Sharma v Shandil [2011] NSWCA 155
Case: [2011] NSWCA 155
Decision Date: 30 May 2011

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal a decision of a primary judge who had refused to allow a party to withdraw a concession made by their counsel. The parties involved were Sharma (applicant) and Shandil (respondent).

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing to permit the withdrawal of the concession. This required the Court to consider the circumstances under which a party should be allowed to resile from a concession made by their legal representative, particularly where the concession was made during the course of proceedings.

The Court of Appeal reasoned that for a party to be permitted to withdraw a concession, it must be demonstrated that counsel was overborne in making the concession, or that there were other compelling reasons to allow the withdrawal. In this instance, the Court found that there were no reasonable prospects of success for the appeal, as the applicant had not established that counsel had been overborne or that the concession was made under duress or error. The Court noted the importance of the finality of litigation and the need for parties to be bound by concessions made by their representatives, absent exceptional circumstances.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed 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.

Case Title:	Sharma v Shandil
Medium Neutral Citation:	[2011] NSWCA 155
Hearing Date(s):	30 May 2011
Decision Date:	30 May 2011
Jurisdiction:
Before:	Allsop P at 1, Sackville AJA at 9
Decision:	Application for leave to appeal dismissed 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:	APPEAL - application for leave - refusal of primary judge to allow withdrawal of concession by counsel - need to prove that counsel had been overborne - no reasonable prospects of success.
Legislation Cited:
Cases Cited:	State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588
Texts Cited:
Category:	Principal judgment
Parties:	Sunil Sharma (Applicant) Ashok Shandil (Respondent)
Representation
- Counsel:	Counsel: Mr K Smark SC, Ms S Chrysanthou (Applicant) Mr C A Evatt, Mr R Rasmussen (Respondent)
- Solicitors:	Solicitors: Kalantzis Lawyers (Applicant) Brydens Law Office (Respondent)
File number(s):	2010/422009
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Gibson DCJ
- Date of Decision:	08 December 2010
- Citation:	Shandil v Sharma [2010] NSWDC 273
- Court File Number(s)	2009/4920
Publication Restriction: