New South Wales
Court of Appeal
CITATION: SULLIVAN v ST GEORGE COMMUNITY HOUSING LIMITED [2010] NSWCA 248 HEARING DATE(S): 24 September 2010
JUDGMENT DATE:
27 September 2010JUDGMENT OF: Basten JA at 1 DECISION: (1) Refuse to extend the time within which to file an application for leave to appeal from the judgment of the District Court delivered on 29 January 2010.
(2) Refuse leave to the applicant to amend his summons in order to seek relief under s 69 of the Supreme Court Act in relation to the proceedings in the District Court.
(3) Dismiss the summons.
(4) Order the applicant to pay the respondent’s costs of the proceedings in this Court.CATCHWORDS: ADMINISTRATION LAW - judicial review - whether District Court failed to accord procedural fairness - APPEAL - civil - whether appeal from District Court exercising appellate jurisdiction from Consumer, Trader and Tenancy Tribunal - jurisdiction arising under another Act - District Court Act 1973, ss4, 9, 44, 127 - PROCEDURE - amendment - leave to amend summons seeking leave to appeal to seek judicial review - whether arguable case of jurisdictional error - WORDS & PHRASES - "action" - District Court Act 1973 (NSW), ss 4, 9, 44, 127 LEGISLATION CITED: Children (Care and Protection) Act 1987 (NSW), s 81
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Commercial Agents and Private Inquiry Agents Act 1963 (NSW)
Compensation Court Repeal Act 2002 (NSW)
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 67, 68
Courts and Crimes Legislation Amendment Act 2008 (NSW), Schedule 5 [1]
District Courts Act 1912 (NSW), s 142
District Court Act 1973 (NSW), ss 4, 9, 44, 127, 142N; Pt 3
Supreme Court Act 1970 (NSW), ss 69, 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 4.15CATEGORY: Principal judgment CASES CITED: Allesch v Maunz [2000] HCA 40; 203 CLR 172
Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135
Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86
Cook v Head [1976] 1 NSWLR 176
Dayeian v Davidson [2010] NSWCA 42
Druett v Director-General of Community Services [2001] NSWCA 126
Fraser Credits Pty Ltd v Osterberg-Olsen [1978] 1 NSWLR 121
Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWSC 312
Kostas v HIA Insurance Services Pty Ltd [2010] HCA Trans 57
Martin v O’Reilly (1914) 14 SR(NSW) 277
Platz v Osborne [1943] HCA 39; 68 CLR 133
Samuel v Blackwood (1920) 20 SR(NSW) 317
Spruill v Director-General of the Department of Community Services [2001] NSWCA 413TEXTS CITED: Second Reading Speech, Parliamentary Debates, NSW Legislative Council (24 June 2008), p 9008 at 9012 PARTIES: Owen Noel Sullivan - Applicant
St George Community Housing Limited - RespondentFILE NUMBER(S): CA 2010/45059 COUNSEL: S Blount - Applicant
A Fernon - RespondentSOLICITORS: R G Christie - Applicant
Gibara & Soubris Lawyers - RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4535/09 LOWER COURT JUDICIAL OFFICER: Elkaim DCJ LOWER COURT DATE OF DECISION:
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Details
- Case
- [2010] NSWCA 248
- Decision Date
CaseChat Overview and Summary
The applicant, Mr Sullivan, sought to appeal a decision of the District Court of New South Wales. The dispute concerned whether the District Court had failed to accord procedural fairness to Mr Sullivan in its appellate review of a decision made by the Consumer, Trader and Tenancy Tribunal. Mr Sullivan sought to amend his summons to pursue judicial review of the District Court's decision.
The primary legal issue before the Court of Appeal was whether it had jurisdiction to hear an appeal from the District Court's decision, particularly given the District Court was exercising its appellate jurisdiction under the *District Court Act 1973* (NSW) in relation to a decision of the Consumer, Trader and Tenancy Tribunal. A further issue was whether leave should be granted to amend the summons to seek judicial review under section 69 of the *Supreme Court Act 1970* (NSW).
Basten JA determined that the District Court's appellate jurisdiction in this instance did not give rise to a right of appeal to the Court of Appeal under section 44 of the *District Court Act 1973*. His Honour found that the proceedings in the District Court were not an "action" within the meaning of section 44, which pertains to appeals from original jurisdiction. Consequently, the Court of Appeal lacked jurisdiction to entertain an appeal from the District Court's decision. Furthermore, Basten JA refused leave to amend the summons to seek judicial review, as there was no arguable case of jurisdictional error by the District Court.
The Court of Appeal refused to extend the time for filing an application for leave to appeal, refused leave to amend the summons to seek judicial review, and dismissed the summons. Mr Sullivan was ordered to pay the respondent's costs.
The primary legal issue before the Court of Appeal was whether it had jurisdiction to hear an appeal from the District Court's decision, particularly given the District Court was exercising its appellate jurisdiction under the *District Court Act 1973* (NSW) in relation to a decision of the Consumer, Trader and Tenancy Tribunal. A further issue was whether leave should be granted to amend the summons to seek judicial review under section 69 of the *Supreme Court Act 1970* (NSW).
Basten JA determined that the District Court's appellate jurisdiction in this instance did not give rise to a right of appeal to the Court of Appeal under section 44 of the *District Court Act 1973*. His Honour found that the proceedings in the District Court were not an "action" within the meaning of section 44, which pertains to appeals from original jurisdiction. Consequently, the Court of Appeal lacked jurisdiction to entertain an appeal from the District Court's decision. Furthermore, Basten JA refused leave to amend the summons to seek judicial review, as there was no arguable case of jurisdictional error by the District Court.
The Court of Appeal refused to extend the time for filing an application for leave to appeal, refused leave to amend the summons to seek judicial review, and dismissed the summons. Mr Sullivan was ordered to pay the respondent's costs.
Orders
Orders of the court
(1) Refuse to extend the time within which to file an application for leave to appeal from the judgment of the District Court delivered on 29 January 2010.
(2) Refuse leave to the applicant to amend his summons in order to seek relief under s 69 of the Supreme Court Act in relation to the proceedings in the District Court.
(3) Dismiss the summons.
(4) Order the applicant to pay the respondent’s costs of the proceedings in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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