Asciak v Jackson [2016] NSWDC 87

District Court New South Wales

Medium Neutral Citation: Asciak v Jackson [2016] NSWDC 87 Hearing dates: 26 November 2015, February 2016 Decision date: 11 April 2016 Jurisdiction: Civil Before: Colefax SC DCJ Decision: (1) Appeal from Local Court (Small Claims) Division allowed

(2) Matter remitted back to the Local Court Catchwords: APPEAL - appeal from Local Court - scope and nature of appeal from Local Court (Small Claims) Division to District Court - denial of procedural fairness - confirmation of cause of action extends limitation period Legislation Cited: Local Court Act 2007 (NSW), ss 29, 39 Limitation Act 1969 (NSW), ss 14, 54 Cases Cited: Eberstaller v Poulos [2014] NSWCA 211 Category: Principal judgment Parties: Constantine Asciak (Appellant/Plaintiff) Douglas Jackson (Respondent/Defendant) File Number(s): 2015/205446 (Armidale Registry) Publication restriction: Nil

REASONS FOR JUDGMENT

Introduction: 1. "The first duty of every court is to determine whether it has jurisdiction" – see Eberstaller v Poulos [2014] NSWCA 211 per Leeming JA at [1] with whom Beazley P and Meagher JA agreed. 2. This judgment is principally concerned with whether or not this court has jurisdiction to hear an appeal from a decision of the Local Court sitting in its Small Claims Division on 25 May 2015. But, as I shall reveal, determining the question of jurisdiction necessarily involves the making of findings which determine the appeal. 3. In this context, section 39 of the Local Court Act 2007 (NSW) relevantly provides: "… (2) A party to proceedings before the [Local] 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." (emphasis added)