Schepis v Commonwealth of Australia [2012] NSWCA 398

Schepis v Commonwealth of Australia [2012] NSWCA 398

Although the Commonwealth did not positively demonstrate that the appellant's economic loss claim had no realistic prospect of exceeding $100,000, the appeal was incompetent because the appellant's UCPR 51.22 affidavit material did not set out admissible material facts establishing a realistic prospect of recovering more than $100,000; it relied on assertions, material not before the trial judge, and transcript extracts insufficient to show the threshold was met.

Jurisdiction
Australia
Judgment Date
05 December 2012
Procedural Posture
Interlocutory Application in an Appeal From the District Court / Notice of Motion by the Commonwealth to Dismiss the Purported Appeal as Incompetent or as Frivolous and Vexatious
Outcome
Appeal dismissed as incompetent.
Legal Topics
['court of Appeal Jurisdiction and Powers' 'appeal From District Court' 'appeal as of Right' 'monetary Threshold for Appeal' 'ucpr 51.22 Affidavit' 'fresh or Further Evidence on Appeal' 'malicious Prosecution' 'frivolous and Vexatious Appeal']
['appeal and New Trial' 'civil Procedure' 'torts'] ['court of Appeal Jurisdiction and Powers' 'appeal From District Court' 'appeal as of Right' 'monetary Threshold for Appeal' 'ucpr 51.22 Affidavit' 'fresh or Further Evidence on Appeal' 'malicious Prosecution' 'frivolous and Vexatious Appeal']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Interlocutory Application in an Appeal From the District Court / Notice of Motion by the Commonwealth to Dismiss the Purported Appeal as Incompetent or as Frivolous and Vexatious

Legal Issues

  1. 1 ['Whether the appeal from the District Court was competent as an appeal as of right under s 127(2)(c) of the District Court Act 1973.' 'Whether the matter at issue or relevant property or civil right amounted to or had a value of $100,000 or more.' "Whether the appellant's affidavits complied with UCPR 51.22 by setting out material facts showing that the monetary restriction did not apply." 'Whether late service of the Notice of Intention to Appeal made the appeal incompetent.' 'Whether the appeal should be dismissed at that time as frivolous and vexatious.']

Ratio Decidendi

Although the Commonwealth did not positively demonstrate that the appellant's economic loss claim had no realistic prospect of exceeding $100,000, the appeal was incompetent because the appellant's UCPR 51.22 affidavit material did not set out admissible material facts establishing a realistic prospect of recovering more than $100,000; it relied on assertions, material not before the trial judge, and transcript extracts insufficient to show the threshold was met.

Court Disposition

Appeal dismissed as incompetent.

Orders

  • ['Dismiss the appeal purportedly commenced by Notice of Appeal filed 22 August 2012 as incompetent.' 'Order Appellant to pay costs of the Respondent of the appeal, and of the Notice of Motion filed 19 September 2012.']