COUNCIL OF THE CITY OF SYDNEY v EX-SERVICEMAN'S CAR LAUNDRY PTY LTD [1988] NSWCA 30

COUNCIL OF THE CITY OF SYDNEY vy EX-SERVICEMAN'S CAR LAUNDRY PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MCHUGH JJA 16 May 1988 10 [1988] NSWCA 30

PRACTICE & PROCEDURE — summary dismissal of appeal — motion for proper

approach to differing views expressed by members of the Court. JUDGMENTS &

ORDERS summary dismissal of appeal as incompetent — motion for — proper 15 approach to — Held: per Kirby P and Mahoney JA; McHugh JA contra: Summary dismissal of appeal as incompetent is inappropriate if there is a seriously arguable issue for hearing on the appeal; per McHugh JA: Such applications should be determined on their merits. Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91; General Steel Industries Inc y Commissioner for Railways (NSW) (1984) 112 CLR 125, 130 referred to. DISTRICT COURT — summary judgment under Ptl1A r 2(1) District Court Rules — whether appeal lies to Supreme Court — whether judgment "in an action" — whether a "new trial" could be ordered — motion for summary dismissal of appeal — held: (per McHugh JA; Kirby P and Mahoney JA reserving their concluded opinion to the hearing of the appeal): appeal is competent. Fraser Credits Pty Ltd v Osterberg Olsen [1978] 1 NSWLR 121 distinguished 25 WORDS & PHRASES — "new trial", "in an action'. District Court Act 1973, s128,

s130. Supreme Court Rules, Pt51 r 17A. District Court Rules, Pt11A r 2(1); r2(3).

Kirby P The claimant moves the Court pursuant to Pt51 r 17A of the Supreme Court Rules for an order that a purported appeal lodged by the opponent be 30 dismissed as incompetent on the ground it does not fall within the provisions of $128 of the District Court Act 1973 (the Act) or is otherwise incompetent. Entry of summary judgment in the District Court The claimant is a local government authority seeking to recover unpaid rates from the opponent which has premises in the area of the claimant's authority. The 35 amount of the debt is alleged to be $114,155.76. That is the amount of a judgment entered by his Honour Judge Downs in the District Court. The claimant had issued a statement of liquidated claim on 13 March 1986. It moved the District Court on 18 March 1988 for summary judgment. It sought the entry of such judgment pursuant to Ptl1A r 2(1) of the District Court Rules made under the 40 Act. The sub-rule provides;-