Archive for leave to appeal

Appeal from District Court on seperate determination of liability

Damjanovic v. Sharpe Hume & Co. (Services) Pty. Ltd, .Damjanofic v. York Agencies Pty. Ltd., Damjanovic v. Rosier & Ors, Damjanovic v. Z. Spehar, Damjanovic v. I. Spehar [2001] NSWCA 130

3   The question of fact which was determined giving rise to the dismissal of the proceedings was essentially whether a signature of the plaintiff on a deed of assignment of debt was or was not a forgery. Had the finding been that the signature was a forgery, then that would have left it open to the plaintiff to proceed with the claim for the debts in question. However, the finding of the District Court Judge was that the signature was not a forgery, but was a genuine signature of the plaintiff, and that accordingly the debts were no longer debts owing to the plaintiff, but rather debts owing to the assignee under the deed of assignment.

4   It seems that it was considered that leave was required because the District Court decision was given on the basis of determination of a separate question of fact. It is common ground before the Court today that in each case the decision did involve a matter at issue amounting to or of the value of $100,000 or more.

5   It may be noted that s.103 of the Supreme Court Act, dealing with appeals from single Judges of the Supreme Court, provides that:

An appeal shall, by leave of the Court of Appeal, lie to the Court of Appeal from a decision in proceedings in the Court on any question or issue ordered to be decided separately from any other question or issue.

6   One question that arises is whether there is a similar requirement for leave in relation to a decision of the District Court. There is in the District Court Act no provision similar to s.103. Appeal to the Supreme Court is provided by s.127 of the District Court Act which is in the following terms:

127(1) A party who is dissatisfied with a Judge’s judgment or order in an action may appeal to the Supreme Court. 
(2) The following appeals lie only by leave of the Supreme Court: 
(a) an appeal from an interlocutory judgment or order, 
(b) an appeal from a judgment or order as to costs only, 
(c) an appeal from a final judgment or order, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or 
(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more, (d) an appeal from a judgment or order on an application for summary judgment under the rules. 
(3) In any other case, an appeal lies as of right. 

7   In my opinion, the decision in this case, even though it was arrived at as a result of a decision of a separate question, was a “judgment or order in an action” within the meaning of s.127(1) of the District Court Act. In my opinion, the decision did not fall within any of the categories in s.127(2) of the Act. It was not, in my opinion, an interlocutory judgment or order, nor was it a judgment or order on an application for summary judgment.

Leave to appeal – principles

Gibson v Drumm [2016] NSWCA 206
  1. There are no exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170. However, it has been consistently stated that leave should only be granted where there are substantial reasons that call for appellate review: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 564, and, in particular, where there is an error of principle, a matter of public importance, or injustice which is reasonably clear in the sense of going beyond what is merely arguable: see Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401; Niemann v Electronic Industries Ltd [1978] VR 431; BHP Petroleum Pty Ltd v Oil Basins Ltd[1985] VR 756; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Minogue v Williams (2000) 60 ALD 366; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Clarke v State of New South Wales [2015] NSWCA 27. In Collier v Lancer (No 2) [2013] NSWCA 186, the Court reiterated that appellate review will be warranted where, for instance “there is an error of principle which, if uncorrected, will result in substantial injustice”.
  2. Another consideration in determining whether to grant leave is the sum in issue in the proposed appeal: Dunn v Ross Lamb Motors (1978) 1 NSWLR 26. Although there is no minimum amount specified in the rules of court below which leave will not be granted, the Court has refused leave in matters because of the small amount involved, such as where it was considered the grant of leave was not warranted having regard to the appropriate allocation of court resources and the disproportionate costs to the parties: see Wilson v Tetley [2003] NSWCA 124; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56; Jaycar Pty Ltd v Lombardo. Accordingly, whilst the mere fact that a small amount is in issue will not necessarily disentitle a person to a grant of leave, having regard to the case management principles enshrined in the Civil Procedure Act, it will nonetheless be a relevant factor and in an appropriate case may be decisive.

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