MARRICKVILLE MUNICIPAL COUNCIL v MOUSTAFA [2001] NSWCA 50

New South Wales Court of Appeal

CITATION : MARRICKVILLE MUNICIPAL COUNCIL v MOUSTAFA [2001] NSWCA 50 FILE NUMBER(S) : CA 40526/99 HEARING DATE(S) : 12 March 2001 JUDGMENT DATE : 12 March 2001

PARTIES : Marrickville Municipal Council - Claimant Yousef Moustafa - Opponent JUDGMENT OF : Sheller JA

LOWER COURT JURISDICTION : District Court LOWER COURT 8757/97 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER :

COUNSEL : E Frizell - Claimant E Pike - Opponent SOLICITORS : Phillips Fox - Claimant Jones Staff & Co - Opponent CATCHWORDS : Application to amend grounds of appeal LEGISLATION CITED : N/A CASES CITED: N/A DECISION : 1. Claimant granted leave to amend the notice of appeal generally; 2. Opponent granted leave at the date of the hearing of the appeal or on earlier application if so advised, to seek to have those grounds of appeal struck out on the basis that they are outside the terms and conditions upon which leave was granted and should not be entertained.; 3. Claimant to pay the costs of this application.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40526/99 SHELLER JA

Monday, 12 March 2001

MARRICKVILLE MUNICIPAL COUNCIL v MOUSTAFA

JUDGMENT (Application) 1 SHELLER JA: This is an application by Marrickville Municipal Council for leave to amend its notice of grounds of appeal in proceedings brought against it by the opponent, Yousef Moustafa. Those proceedings were heard in the District Court and judgment given on 16 June 1999 in favour of the opponent. 2 Apparently because of the operation of a finding that the opponent was guilty of contributory negligence, the amount of the judgment was such that in order to appeal the claimant had to seek leave to appeal from this Court. I am told that that course was followed and this Court granted leave to appeal. 3 I am also told that in support of the application a submission was put that the case was of the nature of a test case which raised unsettled questions of law. On that basis, the claimant appellant was ordered to pay the costs of the appeal in any event. Subsequently, a red appeal book was filed apparently in October 2000 and submissions by both parties have also been filed. 22 February 2001 was the date set before the Registrar for fixing a date for hearing of the appeal. 4 On the previous night, I am informed, the respondent/opponent's advisers were told that the claimant wished to make this application. The application is supported by two affidavits by Jane Elizabeth Green, the first of 28 February 2001 and the second of 7 March 2001. I may say that on my reading of those affidavits no mention is made of the circumstances surrounding the grant of leave to appeal. To the second of those affidavits there is annexed an amended notice of appeal in which new grounds 13 to 20, both inclusive, are set out. 5 It is fairly obvious from looking at those grounds that they are outside the scope of what ordinarily would be described as a test case or a case concerned with unsettled areas of the law. Indeed, as I pointed out to counsel, most of them at heart seem to involve an attack on the fact finding process. It was put to me that although expressed as an error in fact finding what is intended is that there be an attack on inferences that were drawn by the trial Judge from accepted factual conclusions. 6 I think there is considerable force in the opponent's opposition to this grant of leave at such a late stage. I think it is fairly submitted that if leave to appeal was granted on the basis that has been described to me the present application comes perilously close to reinvestigating the conditions upon which that leave was granted. The dilemma that it seems to me has to be faced is that if that application is refused it may only mean that some further application is made to the Full Court to amend and that may be made even as late as the date when the hearing of the appeal is called on. 7 This seems to me entirely unsatisfactory. I may say that I am not satisfied with the terms of the notice of appeal as they are presently put before me. My inclination is to give the claimant general leave to amend the grounds of appeal. However, that is to be on the basis that it is left open to the opponent to challenge those grounds of appeal when the matter comes on for hearing on the basis that they are outside the conditions upon which leave was granted and for that reason the Court should not entertain them. 8 Accordingly, the order that I make is that the claimant, Marrickville Municipal Council, has leave to amend the notice of appeal generally, that the opponent has leave at the date of the hearing of the appeal or on earlier application if so advised, to seek to have those grounds of appeal struck out on the basis that they are outside the terms and conditions upon which leave was granted and should not be entertained. The claimant Council is to pay the costs of this application. 9 PIKE: Your Honour, in relation to the first order you made to say that the possibility of the matter may come before the Court and then be required to be adjourned if the amendment is made at the last minute, could there be a time within which--