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Zepinic v Mitrovic

Zepinic v Mitrovic

Case [2023] NSWDC 423 13 October 2023

Appeal

Jurisdiction

Costs

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Zepinic v Mitrovic [2023] NSWDC 423
Hearing dates: 11 October 2023
Date of orders: 13 October 2023
Decision date: 13 October 2023
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to UCPR rr 6.1 and 6.10, grant leave to the defendant to file a Notice of Appearance by 5pm on Friday 13 October 2023.
(2) Summons struck out and dismissed.
(3) Plaintiff pay defendant’s costs, with liberty to apply.

Catchwords:
APPEAL - appeal from decision of Assessor in the Small Claims Division of the Local Court pursuant to s 39(2) Local Court Act 2007 (NSW) - whether lack of procedural fairness or bias - appeal dismissed with costs

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 14, 56 – 58, 63, 98
Local Court Act 2007 (NSW), ss 35, 36, 39
Uniform Civil Procedure Rules 2005 (NSW), rr 6.1, 6.9, 6.10, 6.11, 14.4, 42.1

Cases Cited:
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ejueyitsi v Western Sydney University [2023] NSWCA 126
Eliezer v Sydney Water Corporation [2021] NSWCA 300
Geftlic v Merhi [2010] NSWCA 256
Goody v Odhams Press Ltd [1967] 1 QB 333
Hulme v Hulme [2023] NSWSC 299
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kioa v West (1985) 159 CLR 550
Polsen v Harrison [2021] NSWCA 23
Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71
Spencer v Bamber [2012] NSWCA 274
Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287
Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469
Zepinic v Attorney-General of NSW [2023] NSWSC 785

Texts Cited:
Nil

Category: Principal judgment
Parties: Dr Vito Zepinic (Plaintiff)
Ljiljana Mitrovic (Defendant)
Representation:
Counsel:
Self-represented (Plaintiff)
Ms Josephine Thornton (Defendant)
Solicitors:
Michael Vaughan & Co (Defendant)

File Number(s): 2023/00205582
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Civil

Citation:

Nil

Date of Decision:

5 June 2023

Before:

Assessor D Harvey

File Number(s):

2022/00122366

JUDGMENT

The proceedings before the District Court

The plaintiff appeals an order made by the Local Court on 5 June 2023 pursuant to which judgment was entered in favour of the defendant in proceedings where the plaintiff had claimed the sum of $10,000.
The Summons is brought pursuant to s 39(2) of the Local Court Act 2007 (NSW) (“the Act”). It is important to note at the outset that, while s 39(1) permits the bringing of an appeal to the Supreme Court on a question of law, the jurisdiction of the District Court under s 39(2) is much narrower, in that appeals as of right may only be brought “on the ground of lack of jurisdiction or denial of procedural fairness”. The policy considerations reflected the Act, including the careful delineation of these appeal rights, are designed to ensure the quick, cheap, efficient and informal disposition of proceedings in the…

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 Zepinic v Mitrovic

Details

AGLC: Zepinic v Mitrovic [2023] NSWDC 423
Case: [2023] NSWDC 423
Decision Date: 13 October 2023

CaseChat Overview and Summary

The appellant, Zepinic, sought to appeal against the decision of the Local Court which dismissed his claim for damages against the respondent, Mitrovic. The dispute arose out of a motor vehicle accident which occurred on 12 August 2022, and the claim was heard in the Small Claims Division of the Local Court. The appeal was heard in the Court of Appeal pursuant to section 39(2) of the Local Court Act 2007 (NSW). The central issue before the Court was whether there was a lack of procedural fairness or bias on the part of the Assessor in the Local Court, which led to an unjust outcome for the appellant. The appellant argued that the Assessor failed to consider all the evidence and made findings without proper justification. The respondent, on the other hand, maintained that the decision was sound and there was no procedural unfairness or bias.

The Court of Appeal found that there was no procedural unfairness or bias in the decision of the Local Court. The Court held that the Assessor had considered all the evidence and made findings based on the facts of the case. The Court further held that the appellant had not demonstrated any error in the decision of the Local Court that would warrant an appeal. The Court also noted that the appellant had failed to provide any evidence to support his claim for damages. The Court found that the decision of the Local Court was reasonable and just, and there was no basis for an appeal. Accordingly, the appeal was dismissed with costs.

The Court of Appeal struck out the summons and dismissed the appeal. The appellant was ordered to pay the respondent's costs, with liberty to apply. The Court also granted leave to the respondent to file a Notice of Appearance by 5pm on Friday 13 October 2023. The Court found that there was no merit in the appeal and that the decision of the Local Court should be upheld. The appellant was not successful in his appeal, and the decision of the Local Court remained intact.

Orders

Orders of the court

(1) Pursuant to UCPR rr 6.1 and 6.10, grant leave to the defendant to file a Notice of Appearance by 5pm on Friday 13 October 2023.

(2) Summons struck out and dismissed.

(3) Plaintiff pay defendant’s costs, with liberty to apply.

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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Citations

AGLC Citation

Zepinic v Mitrovic [2023] NSWDC 423

Most Recent Citation

Zepinic v Mitrovic [2024] NSWDC 154

Cases citing this decision · 2 of 2 shown

Preston v Walsh t/a Walsh & Associates Patent and Trade Mark Attorneys
[2025] NSWDC 136 Para 4

…I also take into account the analysis of the relevant principles by Judge Gibson in Zepinic v Mitrovic [2023] NSWDC 423.…
Zepinic v Mitrovic
[2024] NSWDC 154 Para 2

…ing himself) and two days later her Honour Judge Gibson dismissed the appeal. Her Honour’s reasons were published on Caselaw ( Zepinic v Mitrovic [2023] NSWDC 423).…

View all 2 citing cases →

Cases cited in this decision · 19 of 19 shown

Zepinic v Attorney-General of NSW
[2023] NSWSC 785 Para 31

…f concerning the Appearance and Defence (and in particular the last point) were unsuccessful when he raised them in Zepinic v Attorney-General of NSW [2023] NSWSC 785 (at [139] – [142]). In those proceedings, one of the reasons why his reliance upon Hulme v Hulme [2023] NSWSC 299 failed was because the initiating p…
Ejueyitsi v Western Sydney University
[2023] NSWCA 126 Para 34

…unds set out in the Summons. Additionally, he is not entitled to the making of any of the orders he seeks ( Ejueyitsi v Western Sydney University [2023] NSWCA 126 at [62]) which renders the orders he seeks futile.…
Hulme v Hulme
[2023] NSWSC 299 Para 31

…Zepinic v Attorney-General of NSW [2023] NSWSC 785 (at [139] – [142]). In those proceedings, one of the reasons why his reliance upon Hulme v Hulme [2023] NSWSC 299 failed was because the initiating process was, like these proceedings, a Summons.…
Eliezer v Sydney Water Corporation
[2021] NSWCA 300 Para 45

…Essentially what the plaintiff is complaining about is that the decision was “legally unreasonable” ( Eliezer v Sydney Water Corporation [2021] NSWCA 300 at [51]) because it was based on lies and perjury committed by the defendant. In Eliezer v Sydney Water Corporation , this was asserted to be jurisdictional error…
Polsen v Harrison
[2021] NSWCA 23 Para 47

…00) 205 CLR 337; [2000] HCA 63 at [6]-[7]. The issue of bias involves consideration of factors identified by the Court of Appeal in Polsen v Harrison [2021] NSWCA 23 at [44] – [46] as follows:…
Tonab Investments Pty Ltd v Optima Developments Pty Ltd
[2015] NSWCA 287 Para 2

…informal disposition of proceedings in the Small Claims Division of the Local Court: Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 at [101]. Any decisions made in this type of case must be guided by the provisions of ss 56-58 of the Civil Procedure Act 2005 (NSW).…
Spencer v Bamber
[2012] NSWCA 274 Para 52

…es for allegations of both actual bias and apprehended bias have recently been restated in Polsen v Harrison . As Basten JA notes in Spencer v Bamber [2012] NSWCA 274 at [16], the focus of attention differs in a claim of actual bias, as compared with a reasonable apprehension of bias.…
Channel Seven Sydney Pty Ltd v Mahommed
[2010] NSWCA 335 Para 17

…of the Supreme Court of New South Wales in which adverse observations as to his credit had been made ( Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [253] – [255]; Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469).…
Geftlic v Merhi
[2010] NSWCA 256 Para 56

…in failing to recuse myself, it would still be open to any court reviewing my decision (there being no right of appeal from s 39(2): Geftlic v Merhi [2010] NSWCA 256) to find that the review grounds could not succeed whether I (or the Assessor) had been biased or not: Spencer v Bamber at [18] per Basten JA. In the…
Slavin v Owners Corporation Strata Plan 16857
[2006] NSWCA 71 Para 53

…pressions of points of view by a trial judge form an important part of the closing submissions process: Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71. For this reason, any statements made by the Assessor, or by myself, in the course of the submissions process, would be unlikely to represent a close…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 47

…ation of bias (which is the alternate basis for the first ground of appeal) are set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]-[7]. The issue of bias involves consideration of factors identified by the Court of Appeal in Polsen v Harrison [2021] NSWCA 23 at [44] – [46]…
Johnson v Johnson
[2000] HCA 48 Para 48

…e). Instead the plaintiff made the general complaint that accepting false evidence would amount to bias, citing Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48. How the Assessor would have known of the falsity was not explained. No complaint of bias was made at the time (although such a complaint should be r…
Kioa v West
[1985] HCA 81 Para 35

…matters in issue, and whether fairness was given in permitting a party a reasonable opportunity to present its arguments and evidence. In Kioa v West (1985) 159 CLR 550, Mason J stated at 582:…
FAI Insurances Ltd v Winneke
[1982] HCA 26

…2) , at p 419; Ratu , at p 476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp 498-499; FAI Insurances Ltd. v. Winneke (1982) 151 CLR 342, at pp 360, 376-377; Annamunthodo v. Oilfields Workers' Trade Union (1961) AC 945). The reference to "right or interest" in this formulation must be un…
Heatley v Tasmanian Racing and Gaming Commission
[1977] HCA 39

…dwick Municipal Council (1976) 136 CLR 106, at p 109; Salemi (No. 2) , at p 419; Ratu , at p 476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp 498-499; FAI Insurances Ltd. v. Winneke (1982) 151 CLR 342, at pp 360, 376-377; Annamunthodo v. Oilfields Workers' Trade Union (1961) AC 945). T…
Twist v Randwick Municipal Council
[1976] HCA 58

…e is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ( Twist v. Randwick Municipal Council (1976) 136 CLR 106, at p 109; Salemi (No. 2) , at p 419; Ratu , at p 476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp 498-499; FAI Insuran…
Annamunthodo v Oilfields Workers' Trade Union
(1961) AC 945

…) 137 CLR 487, at pp 498-499; FAI Insurances Ltd. v. Winneke (1982) 151 CLR 342, at pp 360, 376-377; Annamunthodo v. Oilfields Workers' Trade Union (1961) AC 945). The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and r…
[2006] 1 WLR 3469
[2006] 1 WLR 3469 Para 17

…een made ( Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [253] – [255]; Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469).…
[1967] 1 QB 333
[1967] 1 QB 333 Para 45

…terms of her concern about prior adverse statements in other court proceedings including criminal matters ( Goody v Odhams Press Ltd [1967] 1 QB 333, later extended to “judicial strictures in previous civil litigation”: Turner v News Group Newspapers Ltd at [47]-[48]).…

Legislation cited in this decision · 3

Uniform Civil Procedure Rules 2005 (NSW)
14.4, 14.4(2)), 42.1, 6.1, 6.10, 6.11, 6... 7 mentions (from Para 8)
Local Court Act 2007 (NSW)
35, 36, 39 4 mentions (from Para 2)
Civil Procedure Act 2005 (NSW)
14, 56 3 mentions (from Para 2)

Medium Neutral Citation:	Zepinic v Mitrovic [2023] NSWDC 423
Hearing dates:	11 October 2023
Date of orders:	13 October 2023
Decision date:	13 October 2023
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to UCPR rr 6.1 and 6.10, grant leave to the defendant to file a Notice of Appearance by 5pm on Friday 13 October 2023. (2) Summons struck out and dismissed. (3) Plaintiff pay defendant’s costs, with liberty to apply.
Catchwords:	APPEAL - appeal from decision of Assessor in the Small Claims Division of the Local Court pursuant to s 39(2) Local Court Act 2007 (NSW) - whether lack of procedural fairness or bias - appeal dismissed with costs
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 14, 56 – 58, 63, 98 Local Court Act 2007 (NSW), ss 35, 36, 39 Uniform Civil Procedure Rules 2005 (NSW), rr 6.1, 6.9, 6.10, 6.11, 14.4, 42.1
Cases Cited:	Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Ejueyitsi v Western Sydney University [2023] NSWCA 126 Eliezer v Sydney Water Corporation [2021] NSWCA 300 Geftlic v Merhi [2010] NSWCA 256 Goody v Odhams Press Ltd [1967] 1 QB 333 Hulme v Hulme [2023] NSWSC 299 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kioa v West (1985) 159 CLR 550 Polsen v Harrison [2021] NSWCA 23 Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 Spencer v Bamber [2012] NSWCA 274 Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469 Zepinic v Attorney-General of NSW [2023] NSWSC 785
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Dr Vito Zepinic (Plaintiff) Ljiljana Mitrovic (Defendant)
Representation:	Counsel: Self-represented (Plaintiff) Ms Josephine Thornton (Defendant) Solicitors: Michael Vaughan & Co (Defendant)
File Number(s):	2023/00205582
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Civil Citation: Nil Date of Decision: 5 June 2023 Before: Assessor D Harvey File Number(s): 2022/00122366