Geftlic v Merhi [2010] NSWCA 256

New South Wales Court of Appeal

CITATION: Geftlic v Merhi [2010] NSWCA 256

JUDGMENT OF: Sackville AJA at 1; Handley AJA at 12

EX TEMPORE JUDGMENT DATE: 20 September 2010

DECISION: Application for leave dismissed with costs

CATCHWORDS: APPEAL - civil - application for leave to appeal - appeal from a decision of an Assessor in the Small Claims Division of the Local Court to the District Court then to the NSW Court of Appeal - competency of appeal

LEGISLATION CITED: Local Court Act 2007 s 39 (2) District Court Act 1973 s 127 (2)

CATEGORY: Principal judgment

Cook v Head [1976] 1 NSWLR 176 CASES CITED: Druett v Director-General of Community Services [2001] NSWCA 126 Spruill v Director-General of the Department of Community Services [2001] NSWCA 413

PARTIES: Appellant: Layla Hassan Geftlic Respondent: Mariam Merhi

FILE NUMBER(S): CA 2009/298550

COUNSEL: Appellant: J. M Patel Respondent: U. Coustas

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1175 of 2009

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 14 August 2009

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA2009/298550

HANDLEY AJA SACKVILLE AJA

20 September 2010 GEFTLIC v MERHI Ex Tempore Judgment 1 SACKVILLE AJA: The matter listed before the Court is an application for leave to appeal from a decision of the District Court. In an ex tempore judgment given on 14 August 2009, Garling DCJ dismissed a summons filed by the present applicant. 2 The summons filed in the District Court sought to appeal against orders made by an assessor in the Small Claims Division of the Local Court on 23 February 2009. The assessor returned a verdict in favour of the present respondent (the plaintiff in the Local Court) against the applicant (the defendant in the Local Court) in the sum of $10,000. The respondent's claim, on which she succeeded, was to recover moneys lent to the applicant. 3 Each party was represented in the proceedings before the assessor. The assessor gave reasons for his decision at the conclusion of the hearing. The reasons run for some five pages of single spaced transcript. 4 The applicant appealed to the District Court pursuant to s 39(2) of the Local Court Act 2007 ("Local Court Act"). Section 39 of the Local Court Act provides as follows: "(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. (2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness." 5 Mr Patel, who appeared on behalf of the applicant, submitted in this Court that the proceedings in the District Court were not a statutory appeal, but rather an action in the civil jurisdiction of the District Court. The summons filed in the District Court, however, expressly identifies the proceedings as an appeal under s 39(2) of the Local Court Act from the decision of the Small Claims Division of the Local Court. 6 Both parties were represented on the appeal heard and determined by Garling DCJ. His Honour rejected the applicant's arguments that: the Local Court lacked jurisdiction to decide the respondent's claim; and