Young v Sprague

Judgment 1SACKVILLE AJA: The background to the objections to competency filed by the respondents is explained in the judgment in the appellant's (as I shall describe him) application for leave to appeal delivered at the same time as this judgment: Young v Sprague [2014] NSWCA 456 (Principal Judgment). The Principal Judgment was prepared on the assumption that the objections to competency would succeed and thus the appellant required leave to appeal. On that assumption, the Court dismissed the summons for leave to appeal. 2The respondents' objection to competency was heard by a single judge, as required by the Supreme Court Act 1970 (NSW): see ss 46(2)(b), 46B(1)(b); Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15] (per curiam). 3As the Principal Judgment explains, the appellant filed a notice of appeal on 25 June 2014. The notice of appeal was not served until 15 July 2014. It should have been filed and served by 10 June 2014. I leave to one side the lateness of filing and service. 4The fourth respondent (the State) filed a motion on 11 August 2014 seeking an order that the proceedings be dismissed as incompetent pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.41. The State submits that the appellant requires the leave to appeal against the decision of the District Court as the purported appeal does not involve any claim or matter at issue of the value of $100,000 or more: District Court Act 1973 (NSW) (District Court Act) s 127(2)(c). The State also submits that the appellant has failed to comply with UCPR r 51.22, which requires him to file an affidavit setting out the material facts upon which he relies to show that his claim exceeds the threshold specified by s 127(2)(c) of the District Court Act. The State further contends that the notice of appeal filed by the appellant does not comply with UCPR r 51.18, in that it does not identify briefly and specifically the grounds relied on in support of the appeal. 5The remaining respondents filed their motion on 6 August 2014 seeking an order that the notice of appeal be struck out as incompetent. That motion also contended that the appellant had not complied with UCPR rr 51.18 or 51.22. 6The notice of appeal filed on 25 June 2014 seeks orders that the appeal be allowed, the primary judgment set aside and the respondents pay the appellant's costs. Other material filed by the appellant suggests that he seeks compensatory damages for trespass to chattels totalling $50,000, together with exemplary damages of $50,000 to be paid by the State and $30,000 to be paid by the RSPCA. The claim founded on the State's breach of contract is said to justify an award of damages for $50,000 as compensatory damages and a further award of $50,000 as exemplary damages "as a deterrent to the State ... for failure to supervise its employees". The basis on which the appellant says that these amounts are appropriate or justified as damages is not explained. 7The appellant has not filed an affidavit in compliance with UCPR r 51.22, which provides as follows: "(1) This rule applies if an appeal ... as of right is restricted by any Act by reference to: (a) a specified amount or value, or ... (2) The appellant ... must, on filing the notice of appeal ... file and serve on each necessary party an affidavit that: (a) identifies the nature of the restriction (including a reference to the provision of the Act that imposes the restriction), and (b) sets out the material facts on which the appellant ... relies to show that the restriction does not apply." 8The principles governing the competency of the appeal and the requirements of UCPR r 51.22 were stated by McColl JA (Macfarlan JA and Tobias AJA agreeing) in Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371: "[70] An appeal to this Court from a final judgment or order only lies by leave if the appeal does not involve 'a matter at issue amounting to or of the value of $100,000 or more', or involve '(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': s 127(2)(c), District Court Act; s 101(2)(r) of the Supreme Court Act. ... [71] The object s 127(2) of the District Court Act and the like provisions in s 101(2)(r) of the Supreme Court Act seek to achieve, 'is to discourage small appeals where the amount in issue does not justify the cost delay and inconvenience of the appeal process and to ensure that the Court is not burdened by appeals which do not warrant the Court's time': Ozpinar v Assaily [2001] NSWCA 23 (at [13]) per Powell JA (Sheller JA and Rolfe AJA agreeing). To 'satisfy the requirement of s 127(2)(c)(i) ... it is necessary for an appellant to establish that he or she has a realistic prospect of increasing his wealth by $100,000 or more if the appeal were to succeed': Schepis v Commonwealth [2012] NSWCA 398 (at [12]) per Campbell JA, referring to Pawlowska v Zajglic [2011] NSWCA 118 (at [14], [16]-[21] and Jensen v Ray [2011] NSWCA 247 (at [9]-[12]). [72] As s 127(2)(c) constitutes a statutory restriction on the right of appeal, imposed by reference to a specified amount or value (UCPR 51.22(1)), it was necessary for the appellant, on filing the notice of appeal, also to file and serve an affidavit that identified the nature of the restriction and set out 'the material facts on which the appellant ... relie[d] to show that the restriction does not apply': UCPR 51.22(2)(b); Maynes v Casey [2011] NSWCA 156 (at [7] per Basten JA, Allsop P agreeing. [73] In Maynes v Casey (at [8]), Basten JA explained that '[a]n affidavit by a solicitor expressing an opinion as to the amount of damages likely to be awarded is neither necessary, nor sufficient ... [w]hat is required, in order to comply with the rule, is an affidavit setting out "material facts" which may demonstrate the likely amount of the damages'. These propositions are well-established, as the authorities to which his Honour referred demonstrate: see Ozpinar v Assaily (at [12]-[14]) (Powell JA, Sheller JA and Rolfe AJA agreeing); Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 at [47] (Rolfe AJA, Ipp AJA agreeing); Bracks v Smyth-Kirk [2009] NSWCA 401 (at [40]) (McColl JA, Allsop P and Young JA agreeing). [74] An affidavit which 'amount[s] to no more than bald assertions which did not provide any evidentiary basis for the deponent's belief as to the sum which might be awarded' does not comply with the UCPR 51.22(2)(b) requirement (Bracks v Smyth-Kirk (at [40]))." In determining whether the $100,000 threshold has been exceeded, costs are left out of account: Schepis v Commonwealth of Australia [2012] NSWCA 398 at [13] (Campbell JA). 9The appellant has neither complied with UCPR r 51.22 nor established that he has a realistic prospect of increasing his wealth by $100,000 or more if his appeal were to succeed. Even if his appeal were to succeed, there is no evidence suggesting that an award of damages would realistically amount to at least $100,000. The appellant has merely asserted that a successful appeal would result in an award of damages exceeding $100,000. This is clearly insufficient to establish that he is entitled to appeal as of right from a decision of the District Court. 10The notice of appeal must be struck out as incompetent. The appellant must pay the respondents' costs of the motions objecting to competency.