Schepis v Commonwealth of Australia [2012] NSWCA 398

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Schepis v Commonwealth of Australia [2012] NSWCA 398 Hearing dates: 19 November 2012 Decision date: 05 December 2012 Before: Campbell JA Decision: (1) Dismiss the appeal purportedly commenced by Notice of Appeal filed 22 August 2012 as incompetent. (2) Order Appellant to pay costs of the Respondent of the appeal, and of the Notice of Motion filed 19 September 2012. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL AND NEW TRIAL - Court of Appeal (jurisdiction and powers) - appeal from District Court - whether appeal brought as of right - whether matter at issue amounting to a value of $100,000 or more - affidavit filed in connection with Notice of Appeal insufficient to establish monetary threshold - reliance on evidence not before trial judge and not meeting tests for admission as fresh or further evidence on appeal cannot establish material facts - appeal dismissed as incompetent

APPEAL AND NEW TRIAL - Court of Appeal (jurisdiction and powers) - appeal from District Court - motion to dismiss appeal as frivolous and vexatious - proper course to hear dismissal application at time of hearing of appeal - motion not granted on that ground Legislation Cited: Civil Liability Act 2003 (Qld) Civil Liability Regulation 2003 (Qld) District Court Act 1973 Uniform Civil Procedure Rules Cases Cited: Bracks v Smyth-Kirk [2009] NSWCA 401 Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290 Coshott v Shipton Lodge Cobbitty Pty Ltd [2006] NSWCA 316 Gurr v Robinson (NSW Court of Appeal, 10 February 1986, unreported) Harbrett Pty Ltd v Susanne Ruth Butler (NSW Court of Appeal, 14 December 1989, unreported); Jensen v Ray [2011] NSWCA 247 Kassem v Colonial Mutual General Insurance Company Ltd [2001] NSWCA 38 Ozpinar v Assaily [2001] NSWCA 23 Pawlowska v Zajglic [2011] NSWCA 118 Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Wall v Wall [1994] NSWCA 336 Category: Interlocutory applications Parties: Commonwealth of Australia (Applicant) Anthony Demetrius Schepis (Respondent) Representation: Counsel: Ms M Fisher (Applicant) In person (Respondent) Solicitors: Australian Government Solicitor (Applicant) In person (Respondent) File Number(s): 2012/196679