Damjanovic v. Sharpe Hume & Co. (Services) Pty. Ltd, .Damjanofic v. York... [2001] NSWCA 130 | Case summary

1 HODGSON JA: We have before us a summons for leave to appeal from a decision of Judge Gibb in the District Court which was given on 11 August 2000. 2 The judgment arose out of a determination of a question of fact pursuant to the provisions of Part 26 Rule 5AA(2) of the District Court Rules, and in that sense was a decision on a separate question rather than a hearing of the whole case. However, the result of the decision of this separate question of fact was an order dismissing the proceedings, those proceedings in fact being five separate proceedings seeking payment of certain debts. It seems that essentially the plaintiff's claim was that each of the defendants in each of the proceedings was liable for the whole of the debts in question. 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. 8 In my opinion, therefore, there is an appeal as of right in this case and it is unnecessary to consider whether a case for leave is made out. I would add that, even if this had been an appeal from a single Judge of the Supreme Court, it seems to me that it would be an appeal as of right under s.101 of the Supreme Court Act. It seems to me that s 103 is giving an additional right of appeal in those cases where a decision on a separate question does not give rise to a final judgment disposing of the proceedings. 9 A question could arise as to the time at which the appeal is brought. There was a holding summons for leave to appeal filed on 8 September 2000, and the summons itself for leave to appeal was filed on 8 December 2000. In those circumstances, it may be that an extension of time is necessary to make it clear that the appeal is not defeated because it is brought out of time. 10 In circumstances where an application for leave was brought within time, but leave was not required, it seems to me appropriate to grant whatever extension of time is necessary for the appeal itself. 11 Some incidental questions have been raised. 12 Firstly, there is the question of an address for service for some of the respondents. Two of the respondents, Zelka Spehar and Ivan Spehar, are present in court today in person. It seems to me appropriate to direct that, if they wish to participate in the appeal, they should provide an address for service within fourteen days. 13 Mr Cohen, appearing for two of the respondents, has sought a direction that the appellant obtain legal representation rather than continue to seek to be represented by an unqualified person, Ms Vukic. This Court today gave leave to Ms Vukic to appear as the plaintiff's representative, but for the purposes of this hearing only. It seems to me that it would be a matter for the Court hearing the appeal to decide whether or not it is appropriate to grant that leave again. 14 Mr Cohen sought some direction as to expedition, arising out of delay caused by the application for leave. At this stage no particular ground for expedition has been shown, and I would not propose to make any order as to expedition. 15 Mr Cohen has sought an order that the claimant pay the opponent's costs of the application for leave. In my opinion, the absence of need for leave was reasonably clear, and costs could have been reduced if that position had been pointed out clearly and given effect to much earlier. On the whole, I think the appropriate order is that the costs of the application for leave be costs in the proceedings. 16 So that there be no doubt, nothing I have said indicates any view whatsoever as to the merits of the appeal: a decision on the merits will be made when the appeal is heard. All that is being decided today is that leave to appeal is not necessary. 17 The orders that I propose are these: to declare that there is an appeal as of right in this matter; to extend the time for filing the notice of appeal with appointment until and including 3 May 2001; to direct that notice of appearance be filed and served by those respondents who wish to participate in the appeal within fourteen days; and to order that the costs of the application for leave be costs in the appeal. 18 The declaration that I propose is conditional on an affidavit being filed verifying that at least $100,000 is in issue, and I would direct that such affidavit be filed and served within fourteen days. 19 ROLFE JA: I agree with the reasons and the orders proposed by Justice Hodgson. 20 HODGSON JA: Accordingly, the orders I have proposed are the orders of the Court. 21 HODGSON JA: Mr Cohen it just occurs to me that while everyone is here there may be some merit if the Registrar is available to approach the Registrar just to get some sort of timetable as to the steps that are to be taken. 22 COHEN: I am not sure if the Registrar is still sitting but if it is not convenient for us to be referred to the Registrar now certainly-- 23 HODGSON JA: He may be prepared to see you in Chambers. 24 COHEN: Yes, if not I apprehend there is a hearing by way of call over for various matters in the Court of Appeal this afternoon so it may be a convenient course that we be stood into that list if that's the most-- 25 HODGSON JA: Alright well whether we stand it formally into a list or simply suggest - you could approach the Registrar and tell him that it is our suggestion that if he can give procedural directions then that would be an appropriate course. *********

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

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Judgment (8 paragraphs)

Cited By (4)