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 Judgment 1CAMPBELL JA: Nature of the Application 2The Appellant was subjected to a bag search by a customs officer at Brisbane International Airport on 16 May 2008. It appears that the Appellant was less than totally calm during that search. He was (ultimately) charged with an offence of intimidation of a Commonwealth public official. A magistrate dismissed the charge. The Appellant then brought a civil claim in the District Court in Sydney in which he sued (ultimately) the Commonwealth, alleging malicious prosecution. 3Her Honour Judge Balla heard the case over five days in April and May 2012. Her Honour dismissed it on 25 May 2012. 4On 22 June 2012, the Appellant filed a Notice of Intention to Appeal. On 23 June 2012, he emailed a copy of that Notice of Intention to Appeal to a solicitor at the Australian Government Solicitor's Office, but used an incorrect email address. The error arose from mis-spelling the name of the solicitor to whom he was trying to send the email. Her name formed part of her email address. On 6 July 2012, he emailed another copy of the Notice of Intention to Appeal to that officer of the Australian Government Solicitor, this time at the correct email address. He also posted a hard copy of the Notice to the Australian Government Solicitor on 6 July 2012. On 21 August 2012, he filed a Notice of Appeal against the decision of Judge Balla, purportedly as of right. 5This judgment concerns a Notice of Motion filed by the Commonwealth on 19 September 2012. It seeks the dismissal of the Appellant's appeal on two separate grounds. The first is that the appeal is incompetent. The second is that the appeal is frivolous and vexatious. The Bases of Alleged Incompetence 6There are three bases upon which the Commonwealth contends that the appeal is incompetent. Section 127(2)(c) District Court Act 1973 provides that leave is required for: "(c) an appeal from a final judgment or order, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more." 7The first basis upon which the appeal is contended to be incompetent is that this is not an appeal that involves more than $100,000. 8Uniform Civil Procedure Rule 51.22(2) provides that, when an appeal as of right is restricted by reference to a specified amount or value: "The appellant or cross-appellant must, on filing the notice of appeal or cross-appeal, file and serve on each necessary party an affidavit that: (a) identifies the nature of the restriction (including a reference to the provision of the Act that imposes the restriction), and (b) sets out the material facts on which the appellant or cross-appellant relies to show that the restriction does not apply." 9The Appellant did not file a Uniform Civil Procedure Rule 51.22 affidavit with the Notice of Appeal. Following a direction from the Registrar, the Appellant filed an affidavit sworn 31 October 2012, in purported compliance with UCPR 51.22(2). He has supplemented that with an affidavit made on 14 November 2012. 10The second basis upon which the Commonwealth contends that the appeal is incompetent is that the affidavits are inadequate to satisfy UCPR 51.22(2). 11The third basis upon which the Commonwealth contends that the appeal is incompetent is that the Notice of Intention to Appeal was served on the Commonwealth outside the twenty-eight days required by UCPR 51.8. The Requirement for More Than $100,000 to be Involved - Legal Principles 12The amount "at issue" on an appeal is not established by the amount that was claimed in the proceedings appealed from, nor is it established by the orders sought on the appeal. Rather, to satisfy the requirement of s 127(2)(c)(i) District Court Act it is necessary for an appellant to establish that he or she has a realistic prospect of increasing his wealth by $100,000 or more if the appeal were to succeed: Pawlowska v Zajglic [2011] NSWCA 118 at [14], [16]-[21]; Jensen v Ray [2011] NSWCA 247 at [9]-[12]. The only "property or civil right" that could be involved in the present case is the value of the Appellant's claim for damages. To satisfy s 127(2)(c)(ii) it would likewise be necessary for the Appellant to show that success on the appeal would give him a realistic prospect of obtaining more than an extra $100,000. 13In calculating the $100,000 threshold, costs are left out of account: Gurr v Robinson (NSW Court of Appeal, Kirby P, Hope and Samuels JJA, 10 February 1986, unreported); Harbrett Pty Ltd v Susanne Ruth Butler (NSW Court of Appeal, Gleeson CJ, Clarke and Meagher JJA, 14 December 1989, unreported); Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290 at [35]; Coshott v Shipton Lodge Cobbitty Pty Ltd [2006] NSWCA 316 at [14]. The Claims in the Court Below 14The first way in which the Commonwealth puts its submission that the appeal is incompetent requires it to undertake the onus of showing that the appeal does not involve more than $100,000. 15The Commonwealth submitted that one reason why $100,000 was not involved in the appeal was that it was very unlikely that the court would overturn the decision of Balla DCJ on liability. While the submission was made, it was not argued for, beyond saying that the grounds of appeal do not identify any error of legal principle on the part of the judge. I do not accept the latter submission. For example, one ground of appeal is that her Honour erred in not finding that the prosecution was launched on obviously insufficient material. Another is that she should have found that the insufficiency of material supported an inference of malice. On the scanty argument before me, I am not persuaded that the finding on liability is so unlikely to be overturned that there is no realistic prospect of the Appellant obtaining any damages. Demonstrated That No Realistic Chance of Damages Exceeding $100,000? 16Alternatively, and really as its principal submission, the Commonwealth submits that there is not a realistic chance of any damages exceeding $100,000. The Appellant claimed the following heads of damage: "(a) Damages for pain and personal injury; (b) Aggravated and exemplary damages for malicious prosecution; (c) Damages for loss of income and economic loss at the rate of $2,884.61 per week from 30 June 2008 (date about 6 weeks after incident) and continuing; (d) Out-of-pocket expenses including legal fees and medical costs relative to the prosecution ... [quantified at a little over $21,000 in the statement of claim; and around $35,000 by the time of trial]; (e) Interest; and (f) Costs." 17The pain and personal injury claim was, it was conceded, one that was required to be assessed in accordance with the Civil Liability Act 2003 (Qld). That Act imposed various limitations upon the recovery of damages. At the hearing in the court below on 17 May 2012, counsel for the Appellant accepted that the evidence would justify a finding that any psychiatric or psychological injury that the Appellant had suffered would fall within the category of a minor mental disorder. Section 61(1) of the Queensland legislation required personal injuries to be assigned a numerical value, called an "Injury Scale Value" ("ISV") on a scale from one to one hundred. Counsel for the Appellant accepted that the appropriate ISV was in the range of zero to one. 18Part 1 of Schedule 6A of the Queensland Civil Liability Regulation 2003 identifies a sum of money by which the ISV is multiplied to derive a general damages sum. For an ISV assessed as one, the damages award is $1,000.00. Thus, the maximum damages that could have been recovered for pain and personal injury were $1,000.00. 19At the hearing on 17 May 2012, the Appellant's counsel withdrew the claim for aggravated and exemplary damages. 20Concerning the claim for loss of income and economic loss, the evidence in the court below included an affidavit of the Appellant made on 9 March 2012. Neither the Commonwealth nor the Appellant provided this Court with that affidavit. The submissions of the Commonwealth say that paragraph 60 of the affidavit stated: "I had many out-of-pocket expenses in defending the charge which had been brought against me. These include sundry expenses incurred in Australia of $35,302, air fares and Fiji living expenses of $79,675, salary loss after tax of $452,234, interest on past loss of $41,710 and future loss to June 2013, of $87,572. These are set out in the report of Darel Hughes and total $696,493." 21The report of Darel Hughes, referred to in that paragraph of the affidavit, was not tendered in evidence in the court below, nor was Mr Hughes called to give oral evidence there. 22One of the Appellant's affidavits in the present application exhibits Mr Hughes' report, and also various vouchers that the Appellant says justify his claim for out-of-pocket expenses. However, those documents were not tendered in the court below. When those documents were not before the primary judge, and were clearly available for tender at the time of the hearing in the court below, they could not be received by the appeal court in accordance with the tests for admission of fresh or further evidence on appeal. 23It is clear from the material in the application that there was a tender bundle at the hearing, which included (but was not restricted to) medical reports. Neither side has tendered that bundle in the present application. The incompleteness of the material on the present application has the effect that the Commonwealth has not positively demonstrated that the claim for economic loss (other than out-of-pocket expenses) has no realistic prospect of exceeding $100,000. Thus, I reject the first basis on which the Commonwealth claims the appeal is incompetent. Inadequate UCPR 51.22 Affidavit? 24The second basis on which the Commonwealth contends that the appeal is incompetent is the absence of an affidavit complying with UCPR 51.22. 25The Appellant filed an affidavit on 31 October 2012 purportedly in compliance with UCPR 51.22. It sets out the heads of damage claimed in his Amended Statement of Claim. It exhibits the report of Mr Hughes, and identifies the heads of damage referred to in Mr Hughes' report, which total a little less than $700,000. It continues: "6 I persisted in my claim for damages throughout the proceedings. 7 Her Honour Justice Balla did not deal with the question of damages in Her judgment. 8 To assist the Court I have provided a copy of the said cases similar to mine where damages were awarded in excess of $100,000.00 some of them even without taking into account economic loss and are exhibited hereto (Exhibit 3). 9 The restriction in terms of Section 127 of the District Court Act 1973 of $100,000.00 as a specified amount or value does therefore not apply." 26It is insufficient for the deponent of an affidavit designed to comply with UCPR 51.22 to merely assert, or state a belief, that the relevant amount is involved: Ozpinar v Assaily [2001] NSWCA 23 at [14] per Powell JA, with whom Sheller JA and Rolfe AJA agreed; Kassem v Colonial Mutual General Insurance Company Ltd [2001] NSWCA 38 at [46], [47], [53] and [57] per Rolfe AJA, with whom Powell JA and Ipp AJA agreed; Bracks v Smyth-Kirk [2009] NSWCA 401 at [37]-[41] per McColl JA, with whom, relevantly, Allsop P and Young JA agreed; Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 at [8] per Tobias JA. 27Nor is it sufficient to seek to demonstrate the amount involved in the appeal by reference to evidentiary material that was not before the trial judge, and has no prospect of being admitted by the appeal court as fresh evidence or further evidence. As the text of UCPR 22 makes clear, it is necessary for an affidavit under UCPR 51.22 to state "material facts" demonstrating that the restriction does not apply. Those facts can only be ones that could enter into the appeal court's ultimate assessment of damages. Thus, in the present case, Mr Hughes' report, and the vouchers that were said to justify the claim for out-of-pocket expenses, cannot enter into consideration of whether UCPR 51.22 has been complied with. There is no other basis for the claim for out-of-pocket expenses. 28A supplementary affidavit of the Appellant made on 14 November 2012 was also relied upon. So far as the claim for loss of income is concerned, it annexed certain pages (53-78) of the transcripts in the court below. I have read those pages. They refer to some matters, that I will not set out in this judgment, that could be a cause of difficulty for the Appellant in obtaining employment, for reasons that are not attributable to the way he was treated by customs officers in Brisbane on 16 May 2008. Some parts of the transcript cannot be understood without reference to documents that were being cross-examined on, and that are not before the court now. The pages contain an acknowledgment that the Appellant was bankrupt from August 2007 until August 2010, and that various of his expenses that were claimed as damages had been paid by friends and family, and a company, Coachcode Pty Ltd, of which the Appellant had not been a director since 2005. The pages of transcript are insufficient to establish that, if he were to succeed in overturning the judge's finding on liability, the Appellant had a realistic chance of recovering more than $100,000 damages. 29For these reasons, the affidavit material filed by the Appellant does not in substance provide the information that UCPR 51.22 requires. For that reason, I would dismiss the appeal as incompetent. The Appellant's affidavit material is not in a single affidavit, and was served late, contrary to the requirements of UCPR 51.22. That is unimpressive, but not of itself fatal. Service Out of Time? 30The Commonwealth also places reliance upon the Notice of Intention to Appeal having been served out of time. While it is correct that the Notice of Appeal has been served out of time, if that were the only problem with the appeal it may well be solved by an application to extend the time for service of the Notice of Intention to Appeal. Particularly is that so when the lateness is explained by the mistaken attempt to serve at the wrong email address; the Commonwealth accepts that it has suffered no prejudice in consequence of the delay; and the extent of the lateness is not great. Unsurprisingly, when the Appellant is a litigant in person, he has not sought an extension of time. In those circumstances, I do not rely upon the lateness of the Notice of Intention to Appeal as an additional ground for holding that the appeal is incompetent. Dismissal as Frivolous and Vexatious? 31The Commonwealth also relies upon the appeal being frivolous and vexatious. However, it accepts that, if that were the only ground on which the dismissal of the appeal was sought, the application to dismiss the appeal would be stood over to the hearing of the appeal: Wall v Wall [1994] NSWCA 336. I would not grant the motion at this time on the basis of the appeal being vexatious. 32I order: (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. ********** 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. Decision last updated: 05 December 2012