Kazas-Rogaris v Gaddam [2014] NSWSC 1465

Kazas-Rogaris v Gaddam [2014] NSWSC 1465

The appeal was dismissed because no pleaded ground disclosed a reversible error of law. The complaints about calling Mr Haj, his presence in court, discontinuance, burden of proof and alleged apprehended bias were either not errors, not material, or were waived by failure to object at trial. The affidavit issue was cured when the affidavit was ultimately excluded. The Magistrate's refusal to admit the late affidavit of Lena Pace was a discretionary case-management decision open on the material and showed no House v The King error.

Jurisdiction
Australia
Judgment Date
09 December 2014
Procedural Posture
Appeal From Local Court Judgment in a Trespass to Land Claim / Appeal Pursuant to S 39 Local Court Act 2007 (nsw) on Alleged Errors of Law
Outcome
Appeal dismissed. The Plaintiff is to pay the Defendant's costs.
Legal Topics
['trespass to Land' 'appeal From Local Court' 'witness Competence and Compellability' 'affidavits by Persons Unable to Read Written English' 'discontinuance' 'apprehended Bias' 'waiver of Procedural Objections' 'burden and Onus of Proof' 'case Management and Late Evidence']
['common Law' 'civil Procedure' 'evidence' 'torts'] ['trespass to Land' 'appeal From Local Court' 'witness Competence and Compellability' 'affidavits by Persons Unable to Read Written English' 'discontinuance' 'apprehended Bias' 'waiver of Procedural Objections' 'burden and Onus of Proof' 'case Management and Late Evidence']

Case Brief

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Procedural Posture

Appeal From Local Court Judgment in a Trespass to Land Claim / Appeal Pursuant to S 39 Local Court Act 2007 (nsw) on Alleged Errors of Law

Legal Issues

  1. 1 ["Whether the Magistrate erred by allowing the Second Defendant in the Local Court to be called as a witness in the Plaintiff's case below." 'Whether the Magistrate erred by admitting the affidavit of the Second Defendant in the Local Court where he could not read English and the affidavit had not been read by a qualified interpreter.' 'Whether the Magistrate erred by allowing the Second Defendant in the Local Court to remain in court after his evidence commenced and before it concluded while other witnesses gave evidence.' "Whether the Magistrate's statement about the Second Defendant in the Local Court created a reasonable apprehension of bias." 'Whether the Magistrate erred by permitting discontinuance against the Second Defendant in the Local Court without the consent of the other defendant or leave of the Court.' 'Whether the Magistrate misdirected herself as to the burden and onus of proof.' 'Whether the Magistrate erred by refusing to admit the late-served affidavit of Lena Pace.']

Ratio Decidendi

The appeal was dismissed because no pleaded ground disclosed a reversible error of law. The complaints about calling Mr Haj, his presence in court, discontinuance, burden of proof and alleged apprehended bias were either not errors, not material, or were waived by failure to object at trial. The affidavit issue was cured when the affidavit was ultimately excluded. The Magistrate's refusal to admit the late affidavit of Lena Pace was a discretionary case-management decision open on the material and showed no House v The King error.

Court Disposition

Appeal dismissed. The Plaintiff is to pay the Defendant's costs.

Orders

  • ['Appeal dismissed.' "The Plaintiff is to pay the Defendant's costs."]