Liristis v White

1. [1]

   HIS HONOUR: Before this Court is an application by the appellant, Mr Tony Liristis for a stay of the proceedings currently on foot in the Local Court (2023/349463) until the appeal against two judgments of the District Court delivered on 24 October 2024 by Newlinds DCJ (ex tempore) and on 26 November 2024 by Abadee DCJ (Liristis v White [2024] NSWDC 557), and the Supreme Court judgment of Meek J given on 20 December 2024 is heard: Liristis v White [2024] NSWSC 1654.

2. [2]

   By an amended notice of motion filed in Court with leave on 17 February 2025, the appellant seeks the following orders:

3. [3]

   There is some urgency in the appellant’s application for a stay of the Local Court proceedings (2023/349463) as it has been fixed for a two day hearing at Liverpool Local Court commencing on 27 February 2025.

4. [4]

   The appellant filed a notice of appeal on 5 February 2025. He sought to appeal the orders made by Newlinds DCJ, Abadee DCJ, and Meek J in the judgments referred to in [1] above.

5. [5]

   The matter came before me as the referrals judge on 17 February 2025. The appellant appeared self-represented, and Mr Sukkar of counsel appeared for the respondent.

6. [6]

   As each of the judgments which are the subject of the appellant’s notice to appeal are interlocutory judgments, Mr Liristis was advised that he required leave to appeal: Supreme Court Act 1970 (NSW) s 101(2)(e). He informed the Court that he understood that he had sought leave to appeal but that was a misunderstanding on his part. The appellant’s application was stood over until this morning to enable him to file a summons seeking leave to appeal and a white folder, and to allow further submissions to be made in relation to that material.

7. [7]

   A copy of a summons for leave to appeal was provided to my chambers by the appellant on Thursday last week, 20 February 2025. In essence, the appellant seeks leave to appeal from the interlocutory orders which I have detailed and also seeks that the Court of Appeal make an order transferring the Local Court proceedings to the District Court.

8. [8]

   What purports to be the appellant’s white folder was sent by email to my chambers at 8pm last Friday, 21 February 2025. It consists of 229 pages. It may not comply with the requirements under r 51.12 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The summons for leave to appeal and white folder were filed in the Court Registry this morning. The appellant was granted a fee waiver.

9. [9]

   The appellant has filed affidavits dated 13 February 2025 and 16 February 2025. The respondent has filed an affidavit of Mr Jack Townend, Solicitor, affirmed on 18 February 2025.

10. [10]

    The grounds of appeal against the judgment of Newlinds DCJ may be summarised as follows:

11. [11]

    The proposed grounds of appeal against the judgment of Abadee DCJ may be summarised as follows:

12. [12]

    The grounds of appeal against the orders made by Meek J may be summarised as follows:

Principles

1. [13]

   The principles to be applied when exercising the Court’s power to grant a stay pending the hearing of an appeal are well known: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695 (Kirby P, Hope and McHugh JJA); Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20] (Handley, Sheller and Ipp JJA) (“Kalifair”).

2. [14]

   The applicable principles were conveniently summarised by Gleeson JA in Lawrence v Gunner [2015] NSWCA 322 at [11]-[13] as follows:

3. [15]

   It is also useful to set out the Court of Appeal’s recent summary of the applicable principles for a stay pending an appeal in Foundas v Arambatzis (No 6) [2024] NSWCA 231 at [45]-[47] (Ward P, White and Kirk JJA) (“Foundas”):

A short history of the proceedings between the parties

1. [16]

   On 3 November 2023, the appellant filed a statement of claim in the Local Court for damages resulting from a motor vehicle accident with the respondent that occurred on 26 October 2023. The appellant initially sought damages in the amount of $12,650 but later increased that amount to $22,380.06 when he filed an amended statement of claim on 5 February 2024.

2. [17]

   On 28 February 2024, the respondent filed its amended defence in the Local Court proceedings. In its amended defence the respondent has admitted liability for the motor vehicle accident but disputes the quantum of damages.

3. [18]

   The Local Court proceedings are fixed for hearing on 27 and 28 February 2025.

4. [19]

   The controversy that has occurred since the appellant amended his statement of claim in the Local Court has arisen from the appellant’s claim that his damages exceed the Local Court’s jurisdiction of $100,000.

5. [20]

   There have been applications in the Local Court for the hearing date to be vacated and proceedings in the District Court before Newlinds DCJ and Abadee DCJ and in the Supreme Court before Meek J.

Submissions

1. [21]

   The appellant submits that if the stay is not granted, the appeal will be meaningless and have no practical effect. The appellant is critical of Mr Townend’s affidavit. He submits there is no evidence to contradict or deny the appellant’s evidence which is an abuse of process. Further, he contends there is no evidence to contradict or deny the appellant’s evidence that his claim in the Local Court is now in excess of $200,000.

2. [22]

   The appellant submits that there is nothing in Mr Townend’s affidavit which challenges the appellant’s evidence that he did not file the originating process which is the subject of his proposed grounds of appeal.

3. [23]

   The respondent submits that the appellant’s seeking leave to appeal is out of time and no satisfactory explanation has been provided to excuse the delay; that even if time was to be extended the materials in the appellant’s white folder disclose no arguable error in respect of the decisions below; even if arguable error was disclosed, the appeal is inutile because the appellant’s principal complaint is that the courts below erred by determining the originating application which were not in fact filed. If this argument is accepted, it would result in proceedings remaining in the Local Court.

4. [24]

   The respondent further submits that a stay of the Local Court proceedings, less than three days before the hearing would cause the respondent irreparable prejudice, particularly as costs orders made in its favour would likely be futile.

Consideration

1. [25]

   In determining whether a stay is the fairest outcome and least likely to be productive of injustice, an important factor is the appellant’s prospects of success in his application for leave to appeal.

2. [26]

   In his application, the appellant will require an extension of time. A summons seeking leave to appeal was required to be filed within 28 days of each of the decisions: UCPR r 51.10.

3. [27]

   Rather than leave to appeal being sought after the judgment of Newlinds DCJ on 24 October 2024, the litigation between the parties took the unusual course of the proceedings before Abadee DCJ and Meek J. Success in obtaining an extension of time is by no means certain, particularly in relation to the District Court judgments. However, “the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties, thereby ensuring that the time limitation does not become an instrument of injustice”: Nguyen v Nguyen [2021] NSWCA 161 at [12]. The appellant has not, at the present time provided an explanation for the delay.

4. [28]

   The principal contention of error by the appellant on the part of Newlinds DCJ and Abadee DCJ is that each of their Honours dealt with an originating process that had not been filed.

5. [29]

   On the material before me, it is unlikely that the appellant will be able to establish those complaints.

6. [30]

   In his Honour’s judgment, Newlinds DCJ refers at [8] to “an application by summons filed on 15 October 2024, … [the appellant] makes application to transfer the Local Court proceedings to this Court”. It makes no sense that someone other than the appellant would file such a document as a transfer of the Local Court proceedings is the outcome that the appellant sought and continues to seek in his summons seeking leave to appeal.

7. [31]

   It is also apparent from Newlinds DCJ’s judgment that the appellant asked his Honour to proceed to hear the summons. His Honour states at [8]:

8. [32]

   Abadee DCJ in his judgment refers at [13]-[14] to the appellant having “appeared” to file a summons which sought inter alia, that the Local Court proceedings be transferred to the Parramatta District Court “[a]s the matter now exceeds the jurisdiction of the Local Court”. Furthermore, a copy of the summons is exhibited at pages 78-83 to Mr Townend’s affidavit which bears a District Court stamp and purports to bear the signature of the appellant (together with the approval of a fee waiver application).

9. [33]

   Once again it makes no sense that someone other than the appellant would file such a document seeking that order and making a fee waiver application. Furthermore, it appears from Abadee DCJ’s judgment that the appellant sought to proceed with the summons; later asked the Judge to recuse himself and then subsequently disavowed “the circumstance that he brought the current District Court proceeding”.

10. [34]

    In any event, even if the appellant was able to establish that the District Court Judges dealt with what is said to be unfiled originating process, the result would have no impact on the proceedings remaining in the Local Court. If the originating process was not filed, there would be no proceeding to transfer.

11. [35]

    The sole consequence of success in these grounds of appeal would be the overturning of the costs orders that were made. The same observation may be made about the complaints of a “gross miscarriage of justice”; an “abuse of process”; a denial of “procedural fairness” and a denial of “natural justice”.

12. [36]

    As to the grounds of appeal against the judgment of Meek J it is readily apparent that his Honour dealt with the appellant in a very fair way. There is nothing to suggest that there was a “gross miscarriage of justice”; an “abuse of process”; a denial of “procedural fairness” and a denial of “natural justice”. The appellant had little prospect in succeeding with his application to transfer the Local Court proceedings to the Supreme Court, the evidence of the appellant’s damages could not justify a transfer to the Supreme Court as the District Court’s jurisdictional limit is $1.25 million: District Court Act 1973 (NSW) ss 4(1), 44(1).

13. [37]

    In oral submissions this morning, the appellant pointed out that Meek J recounted at [26] the table he provided to his Honour detailing the costs of the hire car which totalled the amount of $104,105.00. He submitted that this amount did not include the damage to his vehicle.

14. [38]

    It appears to me that the appellant may have an arguable case that his claim exceeds the jurisdictional limit of the Local Court. In the appellant’s affidavit dated 13 February 2025, the appellant at paragraph 94 provides the same table which is reproduced at [26] of Meek J’s judgment. At paragraphs 96-98 of the appellant’s affidavit, he refers to annexures “M”, “N” and “O” which appear to be rental agreements with Sydney Ute and Truck Rental, that provides some support for his damages claim. It is not apparent whether that material was before Meek J.

15. [39]

    In any event, the appellant no longer seeks a transfer of the proceedings to the Supreme Court. Accordingly, success in the appeal against Meek J’s judgment in declining to transfer the Local Court proceedings to the Supreme Court will have no impact on the appellant’s present application seeking a transfer to the District Court. However, Meek J observed at [43] that:

16. [40]

    Although the lack of apparent merit of the appellant’s appeal is an important factor to be taken in account in determining where the lower risk of injustice lies if a stay be granted, it is not the only factor: Foundas at [75].

17. [41]

    I take into account that the respondent has a real interest in the finalisation of the proceedings. The respondent has incurred significant costs in the various applications in the Local Court, District Court and Supreme Court. In written submissions, the respondent contended that a stay of the Local Court proceedings some three days before the hearing is likely to cause irreparable prejudice to the respondent.

18. [42]

    The respondent is insured, liability has been admitted and the issue in the proceedings is the quantum of damages. From discussions with the respondent’s counsel this morning, the principal concern is the recovery of the costs orders which have not been paid.

19. [43]

    I am mindful that to dismiss the appellant’s application, the Local Court hearing will in all likelihood proceed on Thursday of this week. This will render nugatory the appellant’s application to transfer the proceedings to the Parramatta District Court.

20. [44]

    Section 56 of the Civil Procedure Act 2005 (NSW)(“CPA”) provides that the overriding purpose of the Act is to facilitate the “just, quick and cheap” resolution of the real issues in the proceedings. Section 58 of the CPA obliges the Court to act in accordance with the dictates of justice. As I have observed, it seems to me from the appellant’s affidavit he has an arguable case that his damages may exceed the jurisdictional limit of the Local Court.

21. [45]

    The real issue in dispute has been the costs of hiring a substitute vehicle that is “broadly equivalent” to the appellant’s damaged vehicle: Arsalan v Rixon (2021) 274 CLR 606; [2021] HCA 40 at [2] (Kiefel CJ, Gageler (as his Honour then was), Keane, Edelman and Steward JJ) (“Arsalan”). Importantly, the High Court observed in Arsalan at [3] that:

22. [46]

    There is nothing in the respondent’s evidence that shows that the hire car costs claimed by the appellant are unreasonable: Arsalan at [3], [36].

23. [47]

    Taking into account the competing interests of the parties, I am persuaded that the course least likely to lead to an injustice is to grant the stay.

24. [48]

    Accordingly, I make the following order:

    1. (1)

       The Local Court proceedings file number 2023/349463 be stayed until the appellant’s summons seeking leave to appeal is determined.

    2. (2)

       No order as to costs.