Tsekouras v Evangelinidis

[1999] NSWCA 382

CITATION:	Tsekouras v Evangelinidis [1999] NSWCA 382
FILE NUMBER(S):	CA 40097/99
HEARING DATE(S):	11 October 1999
JUDGMENT DATE:	11 October 1999
PARTIES :	Con Tsekouras v Viveca Evangelinidis
JUDGMENT OF:	Mason P at 1; Handley JA at 7

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 9445/97
LOWER COURT JUDICIAL OFFICER:	Cripps ADCJ

COUNSEL:	C: In person O: Ms J Crittenden (solicitor)
SOLICITORS:	C: Not represented O: Mallesons Stephen Jaques, Sydney
CATCHWORDS:	APPEAL - Sum at issue less than $100,000 - Dismissed as incompetent - Appellant claiming negligence of his solicitor in earlier proceedings - No question of principle
DECISION:	Appeal dismissed as incompetent, with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40097/99
DC 9445/97

MASON P
HANDLEY JA

Monday, 11 October 1999

Con TSEKOURAS v Viveca EVANGELINIDIS

JUDGMENT

1    MASON P: Mr Tsekouras, to whom I shall refer to as the appellant, brought proceedings in the District Court against Ms Evangelinidis who was his solicitor in earlier court proceedings. The earlier proceedings were heard in this Court by Badgery-Parker J who awarded damages which were reduced by forty per cent for contributory negligence, and came at a sum of $111,151.00. There was an appeal to the Court of Appeal in 1994 and a slightly larger sum of money was awarded. 2    The claim against Ms Evangelinidis was that she was negligent in her conduct of the earlier proceedings. Cripps ADCJ dismissed the claim because he was not persuaded that the solicitor had acted negligently. I have looked at the material appearing in Cripps ADCJ’s judgment and placed before us by way of affidavit and I am satisfied that the appellant’s appeal would not involve a sum at issue more than $100,000. Accordingly, the appeal is incompetent. It requires the grant of leave to be able to continue in this Court. 3    I have considered whether the appeal has any real prospect of success. The appellant argued that the solicitor had been negligent in not arranging for an accident report to be tendered into evidence at the earlier trial. That report would not have been admissible and it contained material that was damaging to the appellant's case. The parts of the report that were useful were in fact used by Mr Evatt, who represented the appellant at the earlier trial. In my view Cripps ADCJ was quite correct in deciding that there was no negligence in relation to the report. 4    The second matter relied upon was the claim that the solicitor had been negligent in not putting before Badgery-Parker J evidence about the income by way of tips earned by the appellant before he was injured. It is clear that that evidence was before the judge because it was the basis of the amended award of damages substituted by the Court of Appeal in 1994. 5    The third matter was the argument that the solicitor had been negligent in not ensuring that evidence of the appellant's net earnings by way of salary of $435 per week in 1985/86 was put before Badgery-Parker J. Cripps ADCJ found that there was no negligence because the appellant's medical condition meant that there had to be a significant discount of the earnings of comparable employees at the time the appellant was injured. These matters were canvassed in the Court of Appeal in the earlier proceedings in 1994. 6    In my view there is no real prospect of success in the foreshadowed appeal. Accordingly I would refuse leave to appeal. I propose the following formal orders:

(1) Appeal dismissed as incompetent.

(2) Leave to appeal refused.

(3) Appellant to pay respondent's costs.

7    HANDLEY JA: I agree.

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