Assali v Gerard MALOUF trading as GERARD MALOUF AND PARTNERS [2008] NSWCA 272

Appeal Outcome: Special leave application dismissed 29 April 2009 (S458/2009)

New South Wales Court of Appeal

CITATION: Assali v Gerard MALOUF trading as GERARD MALOUF AND PARTNERS [2008] NSWCA 272

HEARING DATE(S): 14 October 2008

JUDGMENT DATE: 14 October 2008

JUDGMENT OF: Hodgson JA at [1], [14]; Macfarlan JA at [13]

EX TEMPORE JUDGMENT DATE: 14 October 2008

DECISION: Application for leave to appeal dismissed with costs.

CATCHWORDS: PROCEDURE – APPEALS – Application for leave to appeal – insufficient prospect of success.

CATEGORY: Principal judgment

PARTIES: John ASSALI (Applicant) Gerard MALOUF trading as GERARD MALOUF AND PARTNERS (Respondent)

FILE NUMBER(S): CA 40116/08

COUNSEL: Applicant in Person G CURTIN (Respondent)

SOLICITORS: Connery Partners (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 7114/02

LOWER COURT JUDICIAL OFFICER: Bishop DCJ

LOWER COURT DATE OF DECISION: 11 March 2005, 15 April 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40116/08

HODGSON JA MACFARLAN JA

TUESDAY 14 OCTOBER 2008 John ASSALI v Gerard MALOUF trading as GERARD MALOUF AND PARTNERS Judgment 1 HODGSON JA: This is an application for leave to appeal from a decision of Judge Bishop in the District Court, in which Judge Bishop dismissed proceedings brought by the applicant insofar as those proceedings related to a claim against his previous solicitors in negligence concerning an appeal from an earlier decision by Judge Christie in the District Court. 2 In his submissions before this Court this morning, the applicant has submitted that he did not obtain in the proceedings before Judge Christie compensation for his disability, and that he was seeking justice in that respect. However, the only matter that we can deal with is the question whether there are grounds for granting leave to appeal from the decision of Judge Bishop insofar as it dismissed the applicant's claim against his solicitors. 3 The history is briefly as follows. 4 On 3 September 1996, in proceedings brought by the applicant against one Mosao Igarashi, Judge Christie gave a verdict for the applicant in the sum of a little over $40,000, from which was deducted about $7,000 of expenses which the defendant had previously paid. 5 On 1 October 1996 the applicant filed a holding appeal in the Court of Appeal, but the notice of appeal which was required to be filed within three months was not filed as required. About three years later, new solicitors acting for the applicant applied to reinstate this appeal, and that application was dismissed by Handley JA in August 1999. 6 In 2002, the applicant commenced proceedings in the District Court, claiming damages against the solicitors who were acting for him in 1996, for negligence in failing to advise him properly concerning his appeal and failing to take proper steps to institute a valid appeal. 7 For the purposes of these proceedings, the applicant obtained an expert report from a Queen's Counsel, which expressed an opinion on what the range of damages may have been for the applicant as at 1996 to 1997. This report ultimately gave a figure of around $97,000. The Queen's Counsel expressed no view on the likelihood of success of any such appeal. 8 On 11 March 2005, Judge Bishop dismissed that claim. He was not satisfied of either of the allegations of negligence made by the applicant, that is, an allegation that his solicitors did not advise him of the need to file a proper notice of appeal within three months, and secondly, that the applicant had authorised the solicitors to apply the verdict numbers as costs of the appeal. Judge Bishop also assessed the applicant's chance of success on an appeal as of no value. 9 What is before this court is an application for leave to appeal from that decision of Judge Bishop, filed in May 2008. The proposed grounds of appeal include challenges to the primary judge's factual findings, absence of reasons, and error in relation to his valuation of the chance of success as being nil. An explanation has been given for the long delay in bringing the application. 10 In my opinion, this proposed appeal has insufficient prospect of success to justify an order extending time and granting leave to appeal. The amount at issue is at most of the order of $60,000, plus interest from 1996 or 1997. The grounds of appeal depend on overturning factual findings or establishing insufficiency of reasons, and in my assessment are not strong, and at best could possibly lead to a retrial with very unclear prospects. 11 Although there may be problems with the reasoning of the primary judge in reaching his nil valuation, the Court of Appeal could well take the view that the valuation was reasonable, when the chance of success and the value of possible success is weighed against the extensive costs that would have been incurred in pursuing the appeal and possible retrial; and could well decide that, even if error was shown, there was no miscarriage of justice. 12 For those reasons, as I have said, in my opinion this proposed appeal has insufficient prospect of success to justify the grant of leave, and in my opinion the application for leave to appeal should be dismissed with costs. 13 MACFARLAN JA: I agree with the presiding judge. 14 HODGSON JA: So the order of the court is that the application for leave to appeal is dismissed with costs. oOo