Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McDonald v Cottenham Nominees Pty Limited [2013] NSWCA 83 Hearing dates: 10 April 2013 Decision date: 10 April 2013 Before: Barrett JA Decision: 1.I order that if and to the extent that an appeal has been initiated by Mrs McDonald, that appeal is dismissed as incompetent. 2.I order that if and to the extent that an application for leave to appeal has been initiated by Mrs McDonald, that application is struck out under rules 13.4 and 14.28 of the Uniform Civil Procedure Rules. 3.I order that Mrs McDonald pay the costs of Cottenham Nominees Pty Ltd of the notice of motion challenging competency. 4.I order that Mrs McDonald pay the costs of Cottenham Nominees Pty Ltd and Dama Enterprises Pty Ltd of the appeal. 5.I make order 1 in the notice of motion filed on 12 November 2012 by Cottenham Nominees Pty Ltd. [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 - competency - when amount in issue not shown to be at least $100,000 Legislation Cited: Civil Liability (Non Economic) Loss Order 2010 District Court Act 1973, s 127(2)(c) Cases Cited: Petronaitis v Rowles (2012) NSWCA 236 Category: Interlocutory applications Parties: Susan McDonald - Appellant Cottenham Nominees Pty Limited - First Respondent Dama Enterprises Pty Limited - Second Defendant Representation: Appellant in person N J Maley - First Respondent C M Kakakios - Second Respondent Appellant in person Gilchrist Connell - First Respondent Gadens Lawyers - Second Respondent File Number(s): 2012/93029 Decision under appeal Date of Decision: 2012-03-06 00:00:00 Before: Murrell SC DCJ File Number(s): 2010/284885 Judgment 1I am dealing with a motion filed by the first respondent seeking dismissal of the appeal as incompetent or, by implication, summary disposal of any application for leave to appeal that is on foot. 2The appellant or prospective appellant, Mrs McDonald, sued in the District Court for damages for injuries she sustained in a fall on the stairs of the residential flat building in which she is a tenant. The District Court judge found that Ms McDonald had not established any entitlement to damages because negligence had not been proved. The proceedings were therefore dismissed. 3The judge also made findings about the damages that would have been awarded had liability been established. At paragraph 54 of the judgment, her Honour assessed the non-economic loss to be 28% of a most extreme case (that is, a sum equivalent to $72,800, being 14% of the maximum imposed by the Civil Liability (Non Economic) Loss Order 2010) to which was added at paragraph 55, future medical treatment of $22,000. The finding therefore was that damages, if awarded, would have been $94,800. 4The defendants in the District Court proceedings were the landlord and managing agent of the building. All three parties were legally represented in the District Court proceedings that extended over some five days. 5The District Court judgment was given on 6 March 2012. Thereafter, Mrs McDonald, who is no longer legally represented, filed various documents in this Court or in some cases delivered documents without filing, as follows: Notice of Intention to Appeal filed on or about 23 March 2012; Notice of Appeal filed on or about 6 June 2012; Summons seeking Leave to Appeal filed on or about 30 November 2012; Unfiled amended Noticed of Appeal served on 12 March 2013; Unfiled amended Summons seeking Leave to Appeal sent on about 12 March 2013; 6The first respondent, being the managing agent of the building, filed the notice of motion challenging competency on 5 July 2012. The second respondent, the landlord, supports that application. 7The proposition that any appeal is incompetent is based on the judge's assessment of $94,800 as the damages that would have been awarded had liability been established. Because the amount in issue on that basis does not exceed $100,000, s 127(2)(c) of the District Court Act 1973, precludes appeal unless leave to appeal has been granted. 8Mrs McDonald did eventually file a summons seeking leave to appeal. She did so on 30 November 2012 and, as I have said, an amended summons was delivered but not formally filed on 12 March 2013. Both were thus very substantially out of time. There is a claim for an extension of time but Mrs McDonald has not articulated any reasons for the delay, apart I suppose, from her unfamiliarity with the legal requirements or any other matter relevant to an extension of time. In any event, the purported applications for leave to appeal were not accompanied by all the material required by r 51.12. 9There is then the significant point that Mrs McDonald has not come to grips in any way with the need to show that the amount in issue exceeds $100,000. She has not pointed to any medical evidence and has contented herself with references to hearsay about the likely costs of certain surgical procedures. She says she needs these and that this is because of the fall. But the matter of quantification is not taken beyond her bald assertions. 10Turning to the substance of the case Mrs McDonald would wish to pursue on appeal, it can, I think, be said that none of her documents articulates any clear basis for an appeal as envisaged by r 51.18. The main matters she refers to seem to be these: First, available evidence was not before the judge and was therefore not taken into account; Second, the judge was "quite confused"; Third, the judge erred in being more focussed on the question of contribution between the defendants than on the primary liability; Fourth, the judge erred in accepting the evidence of a witness named Ryan or Raynor; Fifth, the judge should have accepted evidence that she did not accept; Sixth, "her Honour erred in finding that there was evidence to support a conclusion that the respondents withheld producing files that were under subpoena and records". 11In relation to the first of these matters, Mrs McDonald has not made or foreshadowed any application to adduce further evidence nor has she identified further evidence beyond general statements at previous hearings that telephone records may disclose particulars she considers advantageous to her. 12As to the second matter, the judge's alleged "confusion" is not explained and there is no explanation of how the confusion, if it existed, led the judge into error. 13As to the third matter, the judgment shows that the judge did not deal at all with the question of contribution in her judgment. There was no occasion to do so as negligence had not been established. 14As to the fourth and fifth matters, there is no explanation of why the evidence of the particular witnesses should or should not have been accepted or how the judge fell into error in making the credibility finding she did make. 15As to the sixth matter, there is no such finding in the judgment. 16The respondents submit that, even on the most beneficial reading of all of Mrs McDonald's documents, they do not disclose any arguable ground of appeal. For the reasons I have stated, I accept that submission. The position is as put by Mr Kakakios, the solicitor for the second respondent who said, "there is no arguable ground throughout the totality of the material". 17I would add two final matters. 18First, Mrs McDonald was the beneficiary of a direction that the Registrar of the Court of Appeal refer her for pro bono legal assistance limited to advice on her prospects of success on appeal. That direction was made by me on 16 July 2012. Mrs McDonald received such advice but, of course, neither the Court nor the respondents are aware of the advice she was given. It is therefore not as if she has had to rely entirely on her researches and efforts to progress her attempts to appeal. 19The second matter is related. The deficiencies in Mrs McDonald's case were made known to her in July 2012 and nothing has been done to deal with any of them. 20In the whole of the circumstances, the appropriate orders are the following and I now makes these orders: 1. That if and to the extent that an appeal has been initiated by Mrs McDonald, that appeal is dismissed as incompetent. 2. That if and to the extent that an application for leave to appeal has been initiated by Mrs McDonald, that application is struck out under rules 13.4 and 14.28. 21The second of these orders is appropriate in the circumstances for reasons corresponding with those that commended themselves to Beazley JA in the case of Petronaitis v Rowles (2012) NSWCA 236. [Submissions on costs] 3. I order that Mrs McDonald pay the costs of Cottenham Nominees Pty Ltd of the notice of motion challenging competency. 4. I order that Mrs McDonald pay the costs of Cottenham Nominees Pty Ltd and Dama Enterprises Pty Ltd of the appeal. 5. I make order 1 in the notice of motion filed on 12 November 2012 by Cottenham Nominees Pty Limited. ********** 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: 17 April 2013