Legal Research
Cases
Toth v State of New South Wales

Toth v State of New South Wales

Case [2023] NSWCA 206 1 September 2023

No judgment structure available for this case.

Type to search within this case.

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Toth v State of New South Wales [2023] NSWCA 206
Hearing dates: 27 July 2023
Date of orders: 01 September 2023
Decision date: 01 September 2023
Before: Meagher JA at [1];
Payne JA at [70];
White JA at [71]
Decision:
(1)   Dismiss the notice of appeal filed on 14 November 2022 as incompetent.
(2)   Extend the time for the filing of the summons seeking leave to appeal to 21 September 2022.
(3)   Dismiss the summons seeking leave to appeal in relation to each of the grounds of appeal in the draft notice of appeal dated 13 September 2022.
(4)   Order that Mr Toth as appellant / applicant pay the costs of the State of New South Wales as respondent in summons proceeding 2022/282107 and appeal proceeding 2022/362371.

Catchwords:
APPEALS — competency of appeal — where claimed damages at first instance below statutory threshold — where appellant seeks to justify assessment of damages above threshold — whether further evidence sufficient to establish that amount in issue exceeds threshold — appeal dismissed as incompetent
APPEALS — application for leave to appeal — where applicant seeks damages for false imprisonments, battery, assault and malicious prosecution — where damages in issue do not exceed threshold — leave refused

Legislation Cited:
Crimes Act 1900 (NSW), s 91L
District Court Act 1973 (NSW), s 127(2)(c)
Summary Offences Act 1988 (NSW), s 4(1)
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 51.22

Cases Cited:
A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414
Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164
Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17
Berry v Nicholls [2016] NSWCA 272
Collins v Wilcock [1984] 1 WLR 1172
Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527; [1938] HCA 2
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1
Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48
Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Savile v Roberts (1698) 1 Ld Raym 374; 91 ER 1147
State of New South Wales v Le [2017] NSWCA 290
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344
Toth v State of New South Wales (District Court (NSW), Gibson DCJ,…

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 Toth v State of New South Wales

Details

AGLC: Toth v State of New South Wales [2023] NSWCA 206
Case: [2023] NSWCA 206
Decision Date: 01 September 2023

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal by Mr Toth against the State of New South Wales. Mr Toth sought to appeal a decision concerning damages awarded for alleged false imprisonment, battery, assault, and malicious prosecution. The central issue was whether the damages in dispute met the statutory threshold required for an appeal as of right.

The court was required to determine whether Mr Toth could establish that the amount in issue on appeal exceeded the statutory threshold, thereby rendering his appeal competent. This involved assessing whether any further evidence he sought to rely upon was sufficient to justify an assessment of damages above that threshold. The court also considered an application for leave to appeal, which was contingent on the damages in issue not exceeding the threshold.

The court reasoned that the appellant had failed to demonstrate that the amount in issue exceeded the statutory threshold for an appeal as of right. Consequently, the notice of appeal was deemed incompetent. The court also refused the application for leave to appeal, finding that the damages in issue did not meet the necessary threshold.

The court ordered that the notice of appeal filed on 14 November 2022 be dismissed as incompetent. Time was extended for the filing of a summons seeking leave to appeal to 21 September 2022, but this summons was subsequently dismissed. Mr Toth was ordered to pay the costs of the State of New South Wales in both the summons and appeal proceedings.

Orders

Orders of the court

(1) Dismiss the notice of appeal filed on 14 November 2022 as incompetent.

(2) Extend the time for the filing of the summons seeking leave to appeal to 21 September 2022.

(3) Dismiss the summons seeking leave to appeal in relation to each of the grounds of appeal in the draft notice of appeal dated 13 September 2022.

(4) Order that Mr Toth as appellant / applicant pay the costs of the State of New South Wales as respondent in summons proceeding 2022/282107 and appeal proceeding 2022/362371.

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.

Actions

Citations

Toth v State of New South Wales [2023] NSWCA 206

Most Recent Citation

Police v Hunt [2024] SASC 107

Cases Citing This Decision

Police v Hunt [2024] SASC 107
Citation 1 (Para 7)

…in thereby detaining the other person will be unlawful.” (Footnote omitted) [52] [2017] NSWCA 290. See also Toth v New South Wales [2023] NSWCA 206 at [50]-[52] (Meagher JA, Payne and White JJA agreeing). [53] Ibid at [5].…

See all citing cases →

Cases Cited

Toth v State of New South Wales [2022] NSWDC 263
Citation 1 (Para 1)

…lse imprisonment, battery, assault and malicious prosecution. Mr Toth was wholly unsuccessful at first instance ( Toth v State of New South Wales [2022] NSWDC 263).…
Lewis v Australian Capital Territory [2020] HCA 26
Citation 2 (Para 56)

…essarily barring a claim for unlawful detention. To have done so would have involved error ( Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 at [45] (Gordon J); CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [155] (Hayne and Bell JJ)).…
Gaynor v Attorney General of New South Wales [2020] NSWCA 48
Citation 3 (Para 17)

…fs about what he might recover on his claim as advanced at first instance ( Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [17]).…
Lee v Lee [2019] HCA 28
Citation 4 (Para 49)

…lanation prior to bringing the charge. There is no basis for this Court to disturb these credit findings (see Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]).…
Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344
Citation 5 (Para 11)

…e. His appeal to the District Court was unsuccessful. That decision was quashed by the Court of Appeal ( Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344) and the appeal remitted to a differently constituted District Court. In 2019, Flannery SC DCJ upheld the conviction appeal because her Honour was no…
State of New South Wales v Le [2017] NSWCA 290
Citation 6 (Para 52)

…n support of the primary judge’s holding that there was no unlawful detention, the respondent refers to and relies on State of New South Wales v Le [2017] NSWCA 290. In that case, the plaintiff was stopped by a transport officer who wanted to check his Opal card. The plaintiff was asked to produce supporting identi…
Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267
Citation 7 (Para 16)

…The relevant principles are summarised in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80]. The monetary limit requires that the realistic worth of the claim or claims made exceed $100,000. As Campbell JA observed in BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 at [150], in…
Berry v Nicholls [2016] NSWCA 272
Citation 8 (Para 22)

…e the function of the monetary threshold, which recognises the desirability of early finality in the determination of small claims ( Berry v Nicholls [2016] NSWCA 272 at [6]). But his schedule is not determinative of that entitlement, particularly in circumstances where the primary judge declined to make any contin…
Be Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton [2016] NSWSC 485
Citation 9 (Para 16)

…tary limit requires that the realistic worth of the claim or claims made exceed $100,000. As Campbell JA observed in BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 at [150], in circumstances involving a claim for an unliquidated amount:…
CPCF v Minister for Immigration and Border Protection [2015] HCA 1
Citation 10 (Para 56)

…ian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 at [45] (Gordon J); CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [155] (Hayne and Bell JJ)).…
Beckett v New South Wales [2013] HCA 17
Citation 11 (Para 44)

…ceeding without reasonable and probable cause and that, in doing so, the prosecutor acted with malice ( Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 at [4]). That is a high burden. Each element is to be established separately. Even if a claimant can point to certain inferences said to support the…
The Age Company Ltd v Liu [2013] NSWCA 26
Citation 12 (Para 35)

…ear, and not just merely arguable, that an injustice has occurred through error of the primary judge ( The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 at [32]-[38]).…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Citation 13 (Para 35)

…( The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 at [32]-[38]).…
BE Australia WD Pty Ltd v Sutton [2011] NSWCA 414
Citation 14 (Para 16)

…hat the realistic worth of the claim or claims made exceed $100,000. As Campbell JA observed in BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 at [150], in circumstances involving a claim for an unliquidated amount:…
A v New South Wales [2007] HCA 10
Citation 15 (Para 44)

…e unreasonableness of the conclusions drawn is capable of supporting a further inference of malice ( A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [40], [90]). However it remains the task of the claimant to show that is the case.…
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55
Citation 16 (Para 37)

…as is generally required, deal first with the actual bias ground (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [117]).…
Minister for Immigration And Multicultural Affairs v Jia Legeng [2001] HCA 17
Citation 17 (Para 38)

…ation, whatever evidence or arguments may be presented” ( Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]).…
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12
Citation 18 (Para 29)

…conscious and contumelious disregard for [his] rights” ( XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; [1985] HCA 12). As has been noted above at [14], Mr Toth was denied leave by Gibson DCJ to further amend his pleaded case to incorporate a serious and wholly unsubstanti…
Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2
Citation 19 (Para 25)

…n defending the charge ( Savile v Roberts (1698) 1 Ld Raym 374; 91 ER 1147; Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 544; [1938] HCA 2). While Mr Toth ostensibly claimed under each head (ASOC [33]), his claim at first instance was almost entirely directed to the issue of reputational…
A v State of New South Wales [2007] HCA 1021
Citation 20 (Para 44)

…e occasions where the unreasonableness of the conclusions drawn is capable of supporting a further inference of malice ( A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [40], [90]). However it remains the task of the claimant to show that is the case.…
[1984] 1 WLR 1172 [1984] 1 WLR 1172
Citation 21 (Para 53)

…uestion is whether his or her departure from an otherwise planned course is “voluntary” or “consensual” ( Le at [5]; citing Collins v Wilcock [1984] 1 WLR 1172 at 1180).…
Savile v Roberts (1698) 91 ER 1147
Citation 22 (Para 25)

…heads of damage are for loss of reputation, deprivation of liberty and interference with property, including costs expended in defending the charge ( Savile v Roberts (1698) 1 Ld Raym 374; 91 ER 1147; Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 544; [1938] HCA 2). While Mr Toth ostensibly claimed…
Savile v Roberts 91 ER 1147
Citation 23 (Para 25)

…ion, deprivation of liberty and interference with property, including costs expended in defending the charge ( Savile v Roberts (1698) 1 Ld Raym 374; 91 ER 1147; Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 544; [1938] HCA 2). While Mr Toth ostensibly claimed under each head (ASOC [33]…
Pty Ltd v Caltex Oil Australia Pty Ltd 77 ER 1150
Citation 24 (Para 29)

…ied no particular aspect of SC Perry’s conduct that demonstrates a “conscious and contumelious disregard for [his] rights” ( XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; [1985] HCA 12). As has been noted above at [14], Mr Toth was denied leave by Gibson DCJ to further amend his pleaded case to incorporat…

Legislation Cited

Crimes Act 1900 (ACT) 91L
2 mentions (from Para 1)
District Court Act 1973 (NSW) 127(2)(c), 127(2)(c))
2 mentions (from Para 2)
Summary Offences Act 1988 (NSW) 4(1), 4(1))
2 mentions (from Para 10)
Supreme Court Act 1970 (NSW) 75A, 75A(7))
2 mentions (from Para 18)
Uniform Civil Procedure Rules 2005 (NSW) 51.22, 51.22(3)
2 mentions (from Para 17)

Medium Neutral Citation:	Toth v State of New South Wales [2023] NSWCA 206
Hearing dates:	27 July 2023
Date of orders:	01 September 2023
Decision date:	01 September 2023
Before:	Meagher JA at [1]; Payne JA at [70]; White JA at [71]
Decision:	(1) Dismiss the notice of appeal filed on 14 November 2022 as incompetent. (2) Extend the time for the filing of the summons seeking leave to appeal to 21 September 2022. (3) Dismiss the summons seeking leave to appeal in relation to each of the grounds of appeal in the draft notice of appeal dated 13 September 2022. (4) Order that Mr Toth as appellant / applicant pay the costs of the State of New South Wales as respondent in summons proceeding 2022/282107 and appeal proceeding 2022/362371.
Catchwords:	APPEALS — competency of appeal — where claimed damages at first instance below statutory threshold — where appellant seeks to justify assessment of damages above threshold — whether further evidence sufficient to establish that amount in issue exceeds threshold — appeal dismissed as incompetent APPEALS — application for leave to appeal — where applicant seeks damages for false imprisonments, battery, assault and malicious prosecution — where damages in issue do not exceed threshold — leave refused
Legislation Cited:	Crimes Act 1900 (NSW), s 91L District Court Act 1973 (NSW), s 127(2)(c) Summary Offences Act 1988 (NSW), s 4(1) Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 51.22
Cases Cited:	A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 Berry v Nicholls [2016] NSWCA 272 Collins v Wilcock [1984] 1 WLR 1172 Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527; [1938] HCA 2 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Savile v Roberts (1698) 1 Ld Raym 374; 91 ER 1147 State of New South Wales v Le [2017] NSWCA 290 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 Toth v State of New South Wales (District Court (NSW), Gibson DCJ,…