Liristis v White

The summons for leave to appeal

1. A copy of a summons for leave to appeal was provided to my chambers by the appellant on Thursday last week, 20 February 2025. In essence, the appellant seeks leave to appeal from the interlocutory orders which I have detailed and also seeks that the Court of Appeal make an order transferring the Local Court proceedings to the District Court.
2. What purports to be the appellant's white folder was sent by email to my chambers at 8pm last Friday, 21 February 2025. It consists of 229 pages. It may not comply with the requirements under r 51.12 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The summons for leave to appeal and white folder were filed in the Court Registry this morning. The appellant was granted a fee waiver.
3. The appellant has filed affidavits dated 13 February 2025 and 16 February 2025. The respondent has filed an affidavit of Mr Jack Townend, Solicitor, affirmed on 18 February 2025.
4. The grounds of appeal against the judgment of Newlinds DCJ may be summarised as follows: 1. The judge erred in law by hearing an originating process that was not filed. 2. The judge erred in law by making orders, including costs orders, for an originating process that was not filed. 3. The appellant was denied natural justice and procedural fairness. The appellant complains that he was denied the right to cross-examine a deponent of an affidavit and that the appellant's evidence was ignored. 4. It would be in the interests of justice for the appellant's proceedings in the Local Court to be transferred to the District Court as the claim exceeds the Local Court's jurisdictional limit of $100,000 (see Local Court Act 2007 (NSW) s 29).
5. The proposed grounds of appeal against the judgment of Abadee DCJ may be summarised as follows: 1. The judge erred in law by hearing an originating process that was not filed. 2. The judge erred in law by making orders, including costs orders, for an originating process that was not filed. 3. The judge erred in law by granting leave for the plaintiff to withdraw the originating process that was not filed. 4. The appellant was denied natural justice and procedural fairness. He complains that his evidence was ignored. 5. It would be in the interests of natural justice to have the appellant's proceedings transferred to the District Court. By proceedings, the appellant is referring to the proceedings in the Local Court.
6. The grounds of appeal against the orders made by Meek J may be summarised as follows: 1. The orders made by the judge dismissing the appellant's application to transfer the Local Court proceedings to the Supreme Court have caused a "gross miscarriage of justice"; an "abuse of process"; a "denial of procedural fairness"; and a "denial of natural justice". 2. The orders dismissing the appellant's application to transfer the Local Court proceedings to the Supreme Court will cause the plaintiff serious financial hardship as the Local Court's jurisdiction is capped at $100,000. 3. The appellant also complained that the two judgments of Abadee DCJ and Newlinds DCJ were admitted into evidence by Meek J over objection. 4. A further complaint is that the application before Meek J was supposed to have run uncontested as the respondent did not file any evidence.

Principles

1. The principles to be applied when exercising the Court's power to grant a stay pending the hearing of an appeal are well known: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695 (Kirby P, Hope and McHugh JJA); Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20] (Handley, Sheller and Ipp JJA) ("Kalifair").
2. The applicable principles were conveniently summarised by Gleeson JA in Lawrence v Gunner [2015] NSWCA 322 at [11]-[13] as follows: "[11] A successful party is prima facie entitled to the fruits of his or her judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal and that there is a risk that if money is paid it will be unable to be recovered if the appeal succeeds, or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104; 48 NSWLR 381 at [15]. The Court will weigh considerations such as the balance of convenience and the competing rights of the parties. [12] It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties … [13] It is appropriate to consider first whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies …"
3. It is also useful to set out the Court of Appeal's recent summary of the applicable principles for a stay pending an appeal in Foundas v Arambatzis (No 6) [2024] NSWCA 231 at [45]-[47] (Ward P, White and Kirk JJA) ("Foundas"): "[45] … The onus is on the applicants to persuade the Court that a stay would be the fairest outcome and the outcome least likely to be productive of injustice (Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 695; Vaughan v Dawson [2008] NSWCA 169 at [17]). [46] In Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331 Basten JA said: [15] The established basis upon which this Court may intervene to grant such relief pending an appeal is, in broad terms, to prevent the subject matter of the appeal being destroyed or substantially impaired in such a way as to render a successful appeal nugatory. A common example may be found in cases where an appellant resists payment of a sum in accordance with the judgment under appeal on the basis that the money will probably be irrecoverable notwithstanding success on the appeal. [16] More broadly, the Court is exercising a discretionary power and will need to weigh the hardship and inconvenience likely to be caused to each party by granting or not granting the order sought. The relevant circumstances are likely to include the period for which the relief will need to operate, the promptness with which the applicant for relief has come to the Court and the strength of the proposed appeal. [17] So far as the last matter is concerned, the inquiry is usually constrained to a determination whether the appeal is reasonably arguable. … [47] Account is to be taken of the various factors in favour of and against the granting of a stay including whether it can be granted on terms that fairly take account of the competing interests of the parties (Alexander v Cambridge Credit Corporation Ltd at 694; Bobolas v Waverley Council [2014] NSWCA 131). The strength of the proposed appeal can also be a relevant factor if an assessment about the appellant's prospects of success can be assessed having regard to the necessary attenuation of argument on an application for a stay. In Alexander v Cambridge Credit Corporation Ltd this Court said (at 695): "… Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case …"

A short history of the proceedings between the parties

1. On 3 November 2023, the appellant filed a statement of claim in the Local Court for damages resulting from a motor vehicle accident with the respondent that occurred on 26 October 2023. The appellant initially sought damages in the amount of $12,650 but later increased that amount to $22,380.06 when he filed an amended statement of claim on 5 February 2024.
2. On 28 February 2024, the respondent filed its amended defence in the Local Court proceedings. In its amended defence the respondent has admitted liability for the motor vehicle accident but disputes the quantum of damages.
3. The Local Court proceedings are fixed for hearing on 27 and 28 February 2025.
4. The controversy that has occurred since the appellant amended his statement of claim in the Local Court has arisen from the appellant's claim that his damages exceed the Local Court's jurisdiction of $100,000.
5. There have been applications in the Local Court for the hearing date to be vacated and proceedings in the District Court before Newlinds DCJ and Abadee DCJ and in the Supreme Court before Meek J.

Submissions

1. The appellant submits that if the stay is not granted, the appeal will be meaningless and have no practical effect. The appellant is critical of Mr Townend's affidavit. He submits there is no evidence to contradict or deny the appellant's evidence which is an abuse of process. Further, he contends there is no evidence to contradict or deny the appellant's evidence that his claim in the Local Court is now in excess of $200,000.
2. The appellant submits that there is nothing in Mr Townend's affidavit which challenges the appellant's evidence that he did not file the originating process which is the subject of his proposed grounds of appeal.
3. The respondent submits that the appellant's seeking leave to appeal is out of time and no satisfactory explanation has been provided to excuse the delay; that even if time was to be extended the materials in the appellant's white folder disclose no arguable error in respect of the decisions below; even if arguable error was disclosed, the appeal is inutile because the appellant's principal complaint is that the courts below erred by determining the originating application which were not in fact filed. If this argument is accepted, it would result in proceedings remaining in the Local Court.
4. The respondent further submits that a stay of the Local Court proceedings, less than three days before the hearing would cause the respondent irreparable prejudice, particularly as costs orders made in its favour would likely be futile.

Consideration

1. In determining whether a stay is the fairest outcome and least likely to be productive of injustice, an important factor is the appellant's prospects of success in his application for leave to appeal.
2. In his application, the appellant will require an extension of time. A summons seeking leave to appeal was required to be filed within 28 days of each of the decisions: UCPR r 51.10.
3. Rather than leave to appeal being sought after the judgment of Newlinds DCJ on 24 October 2024, the litigation between the parties took the unusual course of the proceedings before Abadee DCJ and Meek J. Success in obtaining an extension of time is by no means certain, particularly in relation to the District Court judgments. However, "the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties, thereby ensuring that the time limitation does not become an instrument of injustice": Nguyen v Nguyen [2021] NSWCA 161 at [12]. The appellant has not, at the present time provided an explanation for the delay.
4. The principal contention of error by the appellant on the part of Newlinds DCJ and Abadee DCJ is that each of their Honours dealt with an originating process that had not been filed.
5. On the material before me, it is unlikely that the appellant will be able to establish those complaints.
6. In his Honour's judgment, Newlinds DCJ refers at [8] to "an application by summons filed on 15 October 2024, … [the appellant] makes application to transfer the Local Court proceedings to this Court". It makes no sense that someone other than the appellant would file such a document as a transfer of the Local Court proceedings is the outcome that the appellant sought and continues to seek in his summons seeking leave to appeal.
7. It is also apparent from Newlinds DCJ's judgment that the appellant asked his Honour to proceed to hear the summons. His Honour states at [8]: "Even though that matter was not listed for hearing today, with the agreement of Mr Sukkar of counsel … and at the urging of Mr Liristis, I will deal with that summons."
8. Abadee DCJ in his judgment refers at [13]-[14] to the appellant having "appeared" to file a summons which sought inter alia, that the Local Court proceedings be transferred to the Parramatta District Court "[a]s the matter now exceeds the jurisdiction of the Local Court". Furthermore, a copy of the summons is exhibited at pages 78-83 to Mr Townend's affidavit which bears a District Court stamp and purports to bear the signature of the appellant (together with the approval of a fee waiver application).
9. Once again it makes no sense that someone other than the appellant would file such a document seeking that order and making a fee waiver application. Furthermore, it appears from Abadee DCJ's judgment that the appellant sought to proceed with the summons; later asked the Judge to recuse himself and then subsequently disavowed "the circumstance that he brought the current District Court proceeding".
10. In any event, even if the appellant was able to establish that the District Court Judges dealt with what is said to be unfiled originating process, the result would have no impact on the proceedings remaining in the Local Court. If the originating process was not filed, there would be no proceeding to transfer.
11. The sole consequence of success in these grounds of appeal would be the overturning of the costs orders that were made. The same observation may be made about the complaints of a "gross miscarriage of justice"; an "abuse of process"; a denial of "procedural fairness" and a denial of "natural justice".
12. As to the grounds of appeal against the judgment of Meek J it is readily apparent that his Honour dealt with the appellant in a very fair way. There is nothing to suggest that there was a "gross miscarriage of justice"; an "abuse of process"; a denial of "procedural fairness" and a denial of "natural justice". The appellant had little prospect in succeeding with his application to transfer the Local Court proceedings to the Supreme Court, the evidence of the appellant's damages could not justify a transfer to the Supreme Court as the District Court's jurisdictional limit is $1.25 million: District Court Act 1973 (NSW) ss 4(1), 44(1).
13. In oral submissions this morning, the appellant pointed out that Meek J recounted at [26] the table he provided to his Honour detailing the costs of the hire car which totalled the amount of $104,105.00. He submitted that this amount did not include the damage to his vehicle.
14. It appears to me that the appellant may have an arguable case that his claim exceeds the jurisdictional limit of the Local Court. In the appellant's affidavit dated 13 February 2025, the appellant at paragraph 94 provides the same table which is reproduced at [26] of Meek J's judgment. At paragraphs 96-98 of the appellant's affidavit, he refers to annexures "M", "N" and "O" which appear to be rental agreements with Sydney Ute and Truck Rental, that provides some support for his damages claim. It is not apparent whether that material was before Meek J.
15. In any event, the appellant no longer seeks a transfer of the proceedings to the Supreme Court. Accordingly, success in the appeal against Meek J's judgment in declining to transfer the Local Court proceedings to the Supreme Court will have no impact on the appellant's present application seeking a transfer to the District Court. However, Meek J observed at [43] that: "If I be wrong and the jurisdictional limit of the Local Court would be exceeded in Mr Liristis' claim, both parties expressly accepted that the claim is well within the jurisdictional limit of the District Court …"
16. Although the lack of apparent merit of the appellant's appeal is an important factor to be taken in account in determining where the lower risk of injustice lies if a stay be granted, it is not the only factor: Foundas at [75].
17. I take into account that the respondent has a real interest in the finalisation of the proceedings. The respondent has incurred significant costs in the various applications in the Local Court, District Court and Supreme Court. In written submissions, the respondent contended that a stay of the Local Court proceedings some three days before the hearing is likely to cause irreparable prejudice to the respondent.
18. The respondent is insured, liability has been admitted and the issue in the proceedings is the quantum of damages. From discussions with the respondent's counsel this morning, the principal concern is the recovery of the costs orders which have not been paid.
19. I am mindful that to dismiss the appellant's application, the Local Court hearing will in all likelihood proceed on Thursday of this week. This will render nugatory the appellant's application to transfer the proceedings to the Parramatta District Court.
20. Section 56 of the Civil Procedure Act 2005 (NSW)("CPA") provides that the overriding purpose of the Act is to facilitate the "just, quick and cheap" resolution of the real issues in the proceedings. Section 58 of the CPA obliges the Court to act in accordance with the dictates of justice. As I have observed, it seems to me from the appellant's affidavit he has an arguable case that his damages may exceed the jurisdictional limit of the Local Court.
21. The real issue in dispute has been the costs of hiring a substitute vehicle that is "broadly equivalent" to the appellant's damaged vehicle: Arsalan v Rixon (2021) 274 CLR 606; [2021] HCA 40 at [2] (Kiefel CJ, Gageler (as his Honour then was), Keane, Edelman and Steward JJ) ("Arsalan"). Importantly, the High Court observed in Arsalan at [3] that: "… it will not usually be difficult for a plaintiff to prove loss against a negligent defendant who causes the plaintiff's vehicle to be unavailable for a period of repair. That loss will commonly consist of (i) the physical inconvenience from the plaintiff's inability to use the damaged vehicle during the period of repair and (ii) loss of amenity or enjoyment of the use of the vehicle. Those heads of damage can usually be inferred from the plaintiff's ownership and past usage of the vehicle and, but for the damage, the plaintiff's ability to continue to use the vehicle during the period of repair. Recovery of damages under these heads of damage will usually be necessary to restore the plaintiff to the position they would have been in but for the defendant's actions that caused the accident. Once the plaintiff acts to mitigate that loss by hiring a substitute vehicle, the onus of proof will lie upon the defendant to show that the costs incurred in mitigation were unreasonable."
22. There is nothing in the respondent's evidence that shows that the hire car costs claimed by the appellant are unreasonable: Arsalan at [3], [36].
23. Taking into account the competing interests of the parties, I am persuaded that the course least likely to lead to an injustice is to grant the stay.
24. Accordingly, I make the following order: 1. The Local Court proceedings file number 2023/349463 be stayed until the appellant's summons seeking leave to appeal is determined. 2. No order as to costs.

Amendments 24 February 2025 - Changes to numbering at [11], [12], [13]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2025