AZRIEL v SFHIR and ANOR [1996] NSWCA 37

AZRIEL v SFHIR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 28 March 1996, 28 March 1996 [1996] NSWCA 37

Practice and Procedure — Appeal — From Local Court (Small Claims Division) — To Supreme Court in Common Law Division — Further Appeal to Court of Appeal — Not without leave — Leave not granted

Powell JA There is listed before the court today what purports to be an appeal from the Judgment delivered, and order made, by Grove J in the Common Law Division of this Court on 21 May 1993, on which day his Honour ordered that the Summons which had been filed by the Appellant on 1 April 1993, which Summons sought (inter alia) an order that the Judgment entered by the Second Respondent, Bailey LCM, in favour of the First Respondent in the Waverley Local Court on 24 September 1992 in proceedings No. 709/92 be set aside, be dismissed. For the reasons which I will shortly record, the appeal is incompetent, and, even if that were not so, the appeal is lacking in substance.

Although the materials which are before the court are incomplete - in particular, they do not include the Statement of Claim which originated the proceedings in the Local Court and the Notice of Grounds of Defence which was filed on behalf of the First Respondent in the Local Court - the statement of facts which I set out below is, I believe, not the subject of any real dispute.

The proceedings in the Local Court arose out of a motor accident which occurred in March 1992 near the intersection in Bondi which, at least in former times, was known as "Six Ways". At the time, the Appellant's motor vehicle, which had been standing near, or adjacent, to the Northern side of O'Brien Street, was undertaking a U-turn at the intersection of O'Brien Street and Glenayr Avenue with a view to parking on the Southern side of O'Brien Street, when it was struck by the First Respondent's motor vehicle, which was proceeding East in O'Brien Street in the centre lane. The Appellant's case appears to have been that, at the time when he commenced his U-turn, there was no vehicle to be seen to his rear for some considerable distance, whilst the First Respondent's case was that, as he approached the "Six Ways" intersection, the Appellant, without warning, moved from the Northern side of O'Brien Street across his front and, although he took immediate evasive action, and applied his brakes, he was unable to avoid a collision.