Gartree Thomson Lawyers (prior to its merge with Kerrs) successfully defended a claim against their client in the case of Ange v Contos  NSWSC 64.
The case was then appealed, and this summary briefly discusses the appeal grounds that can be used under ss 39 and s 40 of the Local Court Act 2007 (NSW).
This was a case where the plaintiff, Mr Ange, alleged that he gave the defendant, Mr Contos a $50,000 loan which Mr Contos failed to repay. Mr Contos gave conflicting evidence, whereby he had lent Mr Ange $100,000, and the $50,000 cheque given to him by Mr Ange was for repayment of that loan.
Magistrate Forbes in the Local Court found neither the plaintiff’s or defendant’s evidence to be compelling and dismissed the case on the basis that the plaintiff had not established its case on the balance of probabilities.
The plaintiff appealed to the Supreme Court.
A party has the right to appeal to the Supreme Court where:
- there is a question of law (s 39 of the Local Court Act 2007 (NSW)), or
- there is a question of mixed law and fact, and the Court grants leave to hear such appeal (s 40 of the Local Court Act 2007 (NSW)).
The decision of the Supreme Court
The first issue was whether the appeal grounds relating to admissibility of evidence was a question of law or mixed law and fact. The Court relied upon Williams v The Queen (1986) 161 CLR 278 to find that where the complaints substantially relate to the facts of the case and the exercise of discretionary judgment, they raise questions of mixed law and fact. The Court refused leave on this ground.
Under the next appeal ground, the plaintiff argued that the Magistrate had allowed inadmissible evidence in relation to the surrounding circumstances in which the cheque was paid by the defendant. The Court found that this ground raised no evidentiary issues amounting to errors of law or law and fact and refused leave to appeal.
The following grounds related to the magistrate’s reasoning process. These were held to not raise any question of law alone and is doubtful that they even raise a question of mixed law and fact. As to the magistrate’s reasoning, it was held the magistrate was fully aware that to dismiss the case she did not need to accept the version of the defendant, she only needed to be satisfied that the plaintiff did not prove their case on the balance of probabilities.
The final issue was whether the Magistrate failed to give adequate reasons for her decision, in particular the failure to refer to the cross examination of Mr Ange and Mr Contos in her decision. It was held that the Magistrate’s reasoning was clearly discernible. She did not accept the evidence of any witness and gave the reasons for this. Based on this, her Honour was not satisfied that the plaintiff had proven their case on the balance of probabilities, and hence dismissed their case.
In relation to the Magistrate’s order of costs, the plaintiff argued that the costs did not take into consideration the significant court time taken as a result of the wrongful admission of “extraneous and/or irrelevant and/or prejudicial evidence”. As Simpson AJA had found that there was no such irrelevant evidence given, it followed that this ground of appeal must fail.
No appeal ground related to a question of law alone which gave the plaintiff the right to appeal. To the extent that the grounds related to mixed grounds of law and fact, the Court did not grant leave to hear the appeal.
The plaintiff’s case was dismissed with costs.
The case can be downloaded here – https://www.caselaw.nsw.gov.au/decision/5e436c2be4b09d076393de75