Melhem v Katter [2021] NSWCA 273

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Melhem v Katter [2021] NSWCA 273 Hearing dates: 5 October 2021 Date of orders: 5 October 2021 Decision date: 05 October 2021 Before: Brereton JA at [1], [23]; McCallum JA at [21]; Garling J at [22] Decision: (1) Grant leave to the applicant to file an Amended Summons Seeking Leave to Appeal in the form initialled, dated this day and placed with the papers. (2) Extend time to apply for leave to appeal to the date on which the Summons Seeking Leave to Appeal was filed. (3) Grant leave to the applicant, insofar as leave be required, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), to commence the proceedings for leave to appeal and the consequent appeal. (4) Grant leave to appeal. (5) Allow the appeal. (6) Set aside the orders made by the District Court on 5 November 2020. (7) Remit the proceedings to the District Court to be dealt with according to law. (8) Order that the respondents pay the applicant's costs of the appeal. Catchwords: JUDGMENTS AND ORDERS – Enforcement – Appeal from setting aside of examination orders – Where District Court had given two inconsistent judgments – Where Court of Appeal previously prohibited District Court from taking any further steps in proceedings on basis that second judgment was valid – Where District Court on remittal considered itself to be functus officio – Whether District Court entirely prohibited from taking any further steps in the proceedings – Court of Appeal only quashed second judgment – Court of Appeal only prohibited steps on basis of validity of second judgment – Distinction between adjudication and enforcement – Appeal allowed APPEALS – Right of appeal – Who may exercise – Felons – Application of Felons (Civil Proceedings) Act 1981 (NSW), s 4, in Court of Appeal APPEALS – Leave to appeal – Whether leave required – Interlocutory decisions – Setting aside of examination orders – Decision had effect of finally disposing of proceedings – Evident merit to appeal – Leave granted APPEALS – Procedure – Time limits – Extension of time – Where respondents on notice of intention to appeal prior to time elapsing – No prejudice identified – Extension granted Legislation Cited: Crimes Act 1900 (NSW), s 4 District Court Act 1973 (NSW), ss 44, 51 Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5 Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), r 38.2(3) Cases Cited: Chen v Zhang [2009] NSWCA 202 Clark v Robards [2016] NSWCA 187 Clark v State of New South Wales [2018] NSWCA 13 Clarke v Herrick [2020] NSWCA 71 Ford v Simes [2009] NSWCA 351 Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 Melham v Katter [2013] NSWDC 203 Mr D v Ms P [2020] NSWCA 174 Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105 Category: Principal judgment Parties: Robert George Melhem (Applicant) Joseph Katter (First Respondent) Susan Vera Katter (Second Respondent) Representation: Counsel: A Moutasallem (Applicant) P E King (Respondents)