CAROLAN v AMF BOWLING PTY LID T/AS BENNETTS GREEN

INFERIOR COURTS AND TRIBUNALS - District Court - incompetent appeal

• amount at stake less than $10,000 - requirement for leave belatedly accepted - whether leave should be granted - no issue of important principle or public importance - whether injustice more than arguable - held: Leave to appeal refused - observations made on considerations relevant to the exercise of leave discretion under District Court Act 1973 s130 for grant of leave in small cases - private and public costs - interests of finality - pressure on Court of Appeal list - absence of issue of legal principle or public importance - reasons for requirement of leave - duty to bring alleged incompetency of purported appeal to notice of opponent - if not, no costs.

District Court Act 1973, s131(a)(iv); s131(b) Supreme Court Rules Pt51 R17A.

Sheller JA This is an application by the plaintiff, Gladys May Carolan, for leave to appeal from a judgment of Patten DCJ of 24 June 1992 in which his Honour gave a verdict for the defendant, AMF Bowling Pty Ltd. Even though his Honour gave a verdict for the defendant he went on to assess damages at $8,000 and no challenge is made to that assessment. Accordingly, as the applicant accepts, there is no appeal as of right under the District Court Act 1973 to this Court and leave is required.

The plaintiff's claim arises out of an accident that occurred at a ten pin bowling alley of which the respondent defendant was the occupier. The alley was open to the public; the plaintiff paid an entrance fee and went there to participate in ten pin bowling. In the course. of bowling a bowl her foot, instead of sliding as is the ordinary way, stuck on the floor and she fell down and was injured.

The allegations of negligence against the respondent involve, amongst others, an assertion that there was a failure to inspect and maintain the floor and a failure to prevent the floor from becoming and remaining in an abrasive condition.

The learned trial Judge concluded that no breach of the defendant's duty was established and it is against that conclusion that the plaintiff now seeks leave to appeal.

In Dunn v Ross Lamb Motors [1978] 1 NSWLR 26 at 28 Reynolds JA said, speaking of leave applications from the District Court, that without attempting to categorise cases in which it is appropriate to grant leave, no features were apparent in that case even if the learned Judge was arguably wrong, which would have justified a grant of leave.

In order to be granted leave to appeal the applicant must demonstrate something more than that the trial Judge was arguably wrong in the conclusion arrived at. I am not satisfied in this case that it can be said that the learned trial Judge was even arguably wrong. The circumstances were, as has been pointed out, that this was a public place and that the plaintiff paid a fee in order to be able to play bowls in that place. It was established that there was a sticky substance on the floor but there was no evidence upon the basis of which the trial Judge could be satisfied that even if some steps should have been taken which were not taken to maintain the floor in a sliding or slippery condition, the want of taking those steps would have avoided the accident which occurred.

It has been said in a number of cases that such evidence is required. In that regard I need do no more than refer to the judgment of Clarke JA in Sleiman v Franklin Food Stores Pty Ltd (1989) ATR 80-266 at 68,834 to 68,835. In my opinion the applicant has failed to demonstrate a case for the grant of leave and accordingly that application should be refused.

The solicitor for the claimant purported to file a notice of appeal as of right. He lodged with the notice an affidavit sworn as long ago as 21 July 1992. This asserted that "The appellant claimed the sum of $100,000 in respect of the injury suffered by her and the claim is above the value referred to in s131(a)(iv) of the District Court Act 1973 as amended". However, the assessment of damages to which the claimant would be entitled if she were successful was in much smaller order.

It is now accepted for the claimant that the appeal was brought in breach of s131(b) of the District Court Act and that leave to appeal is required. The matter has therefore proceeded as if it were a summons for leave. However, I point out that the matter has never been regularised in that no summons or statement under the Rules was ever filed. We have simply treated the purported appeal as of right as if it were a summons for leave to appeal. We have done so although it is now very much out of time and no adequate or, indeed, any explanation has been given for the delay, except by inference that the solicitor for the claimant made a mistake. That mistake would have been repaired by a reading of a decision of the Court in Dunn v Ross Lamb Motors and Anor (above) to which Sheller JA has referred. The issue in the determination of whether or not the claim gave rise to an appeal as of right under the District Court Act is not, nor could it realistically be, the claim made at the trial by the disappointed party. It is, as Reynolds JA pointed out in Dunn, what is involved directly or indirectly in the appeal.

What is the reason for the limitation which Parliament has imposed in this regard? Without attempting to exhaust the reasons, they include:

(1) A respect for the office of a Judge of a District Court who is entitled to determine matters within jurisdiction and to have such determination regarded as final unless for good reason the matter may come to this Court;

UR@AROLAN v AMF BOWLING PTY LTD T/AS BENNETTS GREEN BOWL (Cole JA) 3

(2) The respect for, and recognition of, the heavy work load of this Court. It is commonly known that unless appeals are expedited they will normally require a delay, given the state of our list, of eighteen months to two years before they will be heard;

(3) The discouragement of unnecessary litigation in small amounts where pub}ic costs are necessarily involved including the time of the Judges, court officers, use of court buildings and functions, court reporters and the other expensive features of public litigation;

(4) A recognition of the fact that, particularly in small claims, the amount of costs that can be recovered on a party and party costs order, are typically below those which are actually incurred by a party and which, in respect of a small claim, may be completely disproportionate to the amount actually at stake;

(5) The need ordinarily to conserve the time of the Court of Appeal in small claims to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable.

I keep in mind these purposes for which the requirement of leave is provided in appeals such as this from the District Court. It seems to me that this Court must conform to the inferences which are inherent in that enactment by Parliament of the requirement of leave.

When I look to whether or not any issue of general principle or of public importance is involved in this case, it is clear that it is not. It has not been suggested by counsel for the claimant that it is. However, it was suggested that the case involved an injustice and that the Court would be concerned to remedy that injustice. I agree that, if an injustice were demonstrated, that that is the kind of consideration that would be taken into account to provide leave. However, when I look to the issues in the appeal, as they are stated in the written submission and as they have been outlined in the argument for leave, I am not convinced that such injustice has occurred which requires the grant of leave.

I therefore agree that the appeal, which has been treated as an application for leave must be dismissed.

I reserve the question of costs. Given that it would always have been competent for the opponent, the named respondent to the appeal, to have taken the point of the incompetence of the appeal at an earlier stage and to have sought to have it struck out as incompetent, the failure to do so has resulted in the running up of the costs of an appeal which has been listed before the Court. I would therefore hear separate argument on the question of costs.

Cole JA I agree with the judgment of Sheller JA. I also agree with the enumeration of at least some of the factors which must have moved the legislature to impose a financial ceiling or limit on the right to bring an appeal to this Court. The consequence of there being a limit now of $10,000 below which there is no appeal save as by leave means, in my opinion, that it will be an exceptional case in which an appeal to this Court is likely to receive leave where the sum involved is less than that limit. It should be recognised that where such small claims are involved there must be an early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute.

Kirby P: The order of the Court is the application for leave to appeal is refused. (Counsel addressed on costs)

Kirby P: In this matter the Court has just determined that the purported appeal of the claimant was incompetent, that leave to appeal was therefore required, and that leave should be refused. Reasons have just been given for that determination.

The question has now arisen as to what order should be made providing for the costs of the proceedings. As is often the case, that matter has consumed almost as much time in argument as did the substantive application for leave.

Ordinarily where application for leave is refused the claimant must pay the costs of the opponent. That is simply the consequence of the ordinary rule governing costs in this Court. But this case has some special features. Where the notice of appeal was filed, the solicitor for the claimant filed an affidavit in which he baldly asserted that his client had a ground for an appeal as of right upon the footing that in the original summons in the District Court, a sum of $100,000 was claimed in respect of the injury suffered by the claimant. That statement was, on its face, a mis-statement of the correct legal position. A reasonably competent lawyer, defending the interests of the opponent, would have drawn that mis-statement to the attention of the solicitor for the claimant.

If doing so had not caused the incompetency of the appeal to be noticed and the reconstruction of the proceedings, the solicitor for the opponent would then have advised the opponent and taken steps in this Court to have the purported notice of appeal struck out on the footing that the appeal was incompetent. None of this was done. The matter was simply allowed to sail on to its hearing date today, more than three years later.

As Cole JA pointed out during argument, by taking its place in the list today, on which two other matters are listed, the Court has been delayed by an hour. The consequence has been that another short appeal, which might have taken its place in our list, has been excluded. It is notorious that delays in the Court of Appeal are unacceptable. The Court must take steps to defend those who are waiting in the queue for the hearing of appeals which are competent which come to the Court as of right. By Pt51 rl17A of the Supreme Court Rules it is provided:

"17A (1) A respondent who objects to the competency of an appeal shall, by motion on notice filed and served on all other parties to the appeal within 21 days after service upon the respondent of the notice of appeal with appointment, apply to the Court of Appeal for an order striking out the appeal as incompetent.

(2) If the respondent fails to comply with subr(1), but the appeal nevertheless is dismissed as incompetent, he shall not, unless the Court of Appeal otherwise orders receive any costs of the appeal, and the Court of Appeal may order that he pay to the appellant any costs of the appeal proving useless or unnecessary."

That rule came into force on 24 July 1992. In terms it may not apply to the case in hand because this was not a notice of appeal with appointment. However, the purpose of the rule is simply to give expression to the sensible procedure which would be followed which I have set out above. The exercise of reasonable competence in the legal profession requires such steps even without the Rule.

The question before the Court is whether some costs should be allowed to the opponent on the footing that some costs would probably have been incurred by the opponent in order to remove the purported appeal as of right. But it cannot be certain that, had the opponent brought the manifest incompetence of the appeal to the notice of the claimant, that the claimant would not, reconsidering her position, have determined and been advised that she should not bring the matter before the Court and would have abandoned the purported appeal.

URCAROLAN v AMF BOWLING PTY LTD T/AS BENNETTS GREEN BOWL (Kirby P) 5

It is notable that in subr(2) (above) the sanction which the Rules now provide in plain terms include a sanction that a party which fails to move the Court for this remedy may have to pay the costs even though it is successful in the appeal. That is not a course which I would contemplate in this case. However, it indicates the kind of consideration which the Court may now take into account in disposing of costs in cases of this kind.

The Court must, in determining the particular case, also keep in mind the consequence of its orders for the practice of the Court and for the message that the Court's orders send through this case to cases generally and to the professional generally.

In my opinion the message which the Court should send in plain terms is it is the duty of ordinarily competent lawyers to scrutinise notices of appeal. If on their face they are incompetent, it is the duty of lawyers to bring this to the attention of their opponent and if this produces no response to move the Court for the dismissal of the appeal and to do so promptly.

That was not done in this case. The result has been unnecessary delay, costs and inconvenience, including costs to the public.

In my view the Court should make no order as to the costs of the purported appeal and motion for leave to appeal.

Cole JA. I disagree. In my opinion the appropriate order for costs would be that the successful respondent to the motion for leave to appeal should have its costs. The initial error it is true was that of the solicitor for the appellant because he filed an affidavit which was clearly incorrect. The secondary error was that of the solicitor for the respondent who did not take the step which the rules contemplate for striking out the appeal on the basis that it was incompetent. However, once the need for leave was drawn to the attention of the solicitor for the appellant the appellant did not take the step which it then should have taken of seeking the leave of this Court to appeal. Had that been done as it turns out that application would have been unsuccessful and the appellant would have paid the costs of that application. The alternative course for the appellant was to abandon the appeal but it did not do that and indeed today sought but was refused leave to appeal. In this case in my opinion the appropriate order is that the respondent should not get any costs of the appeal but should be given costs of an application for leave to appeal.

1. That the purported appeal is dismissed as incompetent and the application for leave to appeal dismissed; and

2. That there be no order as to the costs of the purported appeal or of the application for leave to appeal.

1. Purported appeal dismissed as incompetent and application for leave to appeal dismissed; and
2. No order as to costs.

SOLICITORS: Appellant/Claimant: Turnbull Hill Partners