New South Wales Court of Appeal CITATION: Minotti v State Rail Authority of NSW [2006] NSWCA 91 HEARING DATE(S): 4 April 2006 JUDGMENT OF: Giles JA; Bryson JA; Young CJ in Eq EX TEMPORE JUDGMENT DATE: 04/04/2006 DECISION: Application for leave to appeal dismissed with costs. CATCHWORDS: Application for leave to appeal- Summary judgment- Test as to whether there is a real question to be tried- Obiter dicta that Civil Procedure Act 2005 might widen the test. LEGISLATION CITED: Civil Procedure Act 2005 Transport Authorities Act 1980, Sch 5 cl 5 PARTIES: Kenneth John Minotti (Claimant) State Rail Authority of NSW (Opponent) FILE NUMBER(S): CA 40694/05 COUNSEL: C Hart (Claimant) A B Parker (Opponent) SOLICITORS: Bale Boshev Lawyers (Claimant) Moroney Betts (Opponent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): 14882/90 LOWER COURT JUDICIAL OFFICER: Associate Justice Malpass IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40694/05 GILES JA BRYSON JA YOUNG CJ in EQ Tuesday 4 April 2006 KENNETH JOHN MINOTTI v STATE RAIL AUTHORITY OF NSW Judgment 1 THE COURT: This is an application for leave to appeal from a decision of Associate Justice Malpass who, on a motion by the opponent, ordered that summary judgment be given for the opponent. Technically, the opponent should have given evidence on which the Court could have concluded that there was no document that constituted a notice in writing of election under Sch 5 cl 5 of the Transport Authorities Act 1980. 2 The opponent put on an affidavit showing that there was a document, which was annexure A to the learned Associate Judge's reasons, and the case was conducted before the learned Judge and before us with that being the only relevant document. 3 Indeed no other document was ever put before the Court, nor was it suggested before us that there was any other document. Furthermore, the evidence shows that the claimant received payment under cl 5 of Sch 5 to the Act for a considerable period. 4 The case has been argued before us on the basis of the traditional view that in a summary judgment application the applicant is only entitled to succeed where there is no real question to be tried. It may well be that under the Civil Procedure Act 2005 and recent decisions in England under the CPRs that in this twenty-first century courts should take a wider view. However this is not the case to explore that matter. 5 We have approached the matter on the traditional test and on the traditional test this is a proper case for summary judgment. 6 Mr Hart, who appears for the claimant, submitted that the matter was not unarguably clear and the case should go to trial so that the factual matrix of the execution of the document could be produced. He said that the claimant should be given that opportunity. With respect, we cannot see anything to be gained by doing so. 7 In our view leave to appeal should be refused. The result reached by the learned Associate Judge was correct. The application should be dismissed with costs. 8 GILES JA: That will be the order of the Court. ******************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.