PAPAELLINAS v MOSSOP [1994] NSWCA 248

PAPAELLINAS v MOSSOP SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 31 May 1994, 29 July 1994

[1994] NSWCA 248

Facts

Appeal from stated case. The appellant and the respondents were all members of an unincorporated association known as "Writers in the Park" which has, since 10 September 1985, organised readings, forums, book launches, and other writing based events in the Lounge Bar of the Harold Park Hotel at Glebe. Tuesday night readings were recorded. The Harold Park Hotel supplied the sound recording equipment and Writers in the Park purchased the blank tapes. The recordings were done by members of Writers in the Park.

The appellant, through his agent negotiated a sale of the tapes to the Mitchell Library for the sum of $15,000 and dishonestly kept the money. As this finding could not be challenged by the appellant, the appellant was left with technical points of appeal only.

Held (per Clarke JA; Priestley and Meagher JJA concurred) The application to state and sign a case and a stated case should be in the prescribed form of Form 41B (Pt32 R11 Supreme Court Rules).

Was the statement of claim a nullity as a result of the procedural irregularities? No.

ORDERS

Appeal dismissed with costs.

Priestley JA I agree with Clarke JA. As appears from his detailed consideration of the appeal, the nature of the proceedings by which the magistrate's decision was brought under the Supreme Court's consideration and the circumstances of the case precluded any challenge to the magistrate's finding on what was the substantial matter litigated before him, which was whether the appellant had dishonestly retained the proceeds of sale of the tapes. The appellant was left only with the more technical points dealt with by Clarke JA, and for the reasons given by him, I do not think the appellant succeeds on those points.