CAROLAN v AMF BOWLING PTY LTD T/AS BENNETTS GREEN BOWL [1995] NSWCA 69

CAROLAN v AMF BOWLING PTY LID T/AS BENNETTS GREEN BOWL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, SHELLER and COLE JJA 16 November 1995, 16 November 1995

[1995] NSWCA 69

INFERIOR COURTS AND TRIBUNALS — District Court — appeal concerns amount less than $10,000 purported appeal as of right — reference to claim at trial — belated acceptance of incompetence — whether leave should be granted — reasons for requirement of leave in small cases — whether suitable for leave whether injustice more than arguable — held: Not leave refused. Dunn v Ross Lamb Motors and Anor [1978] 1 NSWLR 26 (CA) applied and explained.

COSTS — District Court — incompetent appeal failure to take point and move for dismissal — held: successful respondent on dismissal of application for leave, denied costs — parties must move to strike out incompetent appeals.

INFERIOR COURTS AND TRIBUNALS — District Court — incompetent appeal — amount at stake less than $10,000 — requirement for leave belatedly accepted — whether leave should be granted — no issue of important principle or public importance — whether injustice more than arguable — held: Leave to appeal refused — observations made on considerations relevant to the exercise of leave discretion under District Court Act 1973 s130 for grant of leave in small cases — private and public costs — interests of finality — pressure on Court of Appeal list — absence of issue of legal principle or public importance — reasons for requirement of leave — duty to bring alleged incompetency of purported appeal to notice of opponent — if not, no costs.

District Court Act 1973, s131(a)(iv); s131(b) Supreme Court Rules Pt51 R17A.

Sheller JA This is an application by the plaintiff, Gladys May Carolan, for leave to appeal from a judgment of Patten DCJ of 24 June 1992 in which his Honour gave a verdict for the defendant, AMF Bowling Pty Ltd. Even though his Honour gave a verdict for the defendant he went on to assess damages at $8,000 and no challenge is made to that assessment. Accordingly, as the applicant accepts, there is no appeal as of right under the District Court Act 1973 to this Court and leave is required.