AZRIEL v SFHIR [1997] NSWCA 34

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

MASON P, PRIESTLEY JA and HANDLEY JA 25 September 1997

[1997] NSWCA 34

Mason P. This is a difficult and sad case. In March 1992 there was a traffic accident involving cars driven by Mr Azriel and Mr Sfhir. Mr Azriel brought proceedings in the Local Court to recover damages. They were listed for hearing in September 1992 before a magistrate.

Shortly before the hearing commenced, Mr Sfhir gave notice of a cross-claim whereby he sought to recover the damage he suffered in the event that the magistrate found that it was Mr Azriel who was responsible for the accident. The magistrate embarked upon a hearing. It was a case of believing one party or the other and, for reasons given by the magistrate, he was satisfied that it was Mr Azriel who was responsible for the accident. We are not concerned today with whether he was right or wrong in that decision on the facts.

Mr Azriel brought proceedings in the Supreme Court. He correctly understood that the Supreme Court could only interfere with the magistrate's decision if the magistrate acted without jurisdiction or had denied natural justice. The matter was heard by Grove J who concluded that there was no error of either category.

Mr Azriel filed a notice of appeal. Because that in the eyes of the law put him in the position of being a claimant for relief in a court, it entitled Mr Sfhir to apply for an order for security for costs. This was done and Mr Azriel was ordered to pay $ 2,500 into court for security for the costs of the appeal.

The appeal was heard. The Court decided that there was indeed no right of appeal from Grove J's order. The judges considered whether the Court would grant leave to appeal but were not satisfied that the matter had prospects of success and leave was refused. An order for costs was made. The costs were assessed and with the costs involved in that assessment exercise it came to a figure of $ 2,886. The Registrar of the Court of Appeal concluded that that appeared to be a proper or sustainable assessment for the total costs in relation to the appeal. The Registrar was asked to order the payment lodged as security of the $ 2,500 to Mr Sfhir. This was opposed by Mr Azriel on the ground that he had in the meantime made an application to the High Court for special leave to appeal. That matter is listed in November 1997.