Arabi v Glad Cleaning Service Pty Limited

HIS HONOUR : This is an application for an order that an appeal be dismissed as incompetent. The application is brought out of time and in circumstances where a number of procedures in the appeal have been undertaken. I am not certain that it would have been appropriate to extend the time for making the application although, as pointed out by Mr Sleight, it is better that such an application be made late but before the hearing, rather than the question of competence or incompetence of the appeal arising for the first time at the hearing.

In my opinion, the original affidavit supporting an appeal as of right was inadequate. It referred merely to the claims for damages made at first instance. Mr Daly has sought to explain this by pointing out that the first instance judgment was not available at the time. However, in my opinion, even if the first instance judgment is not available, some better effort should be made to comply with UCPR 51.22 and provide an affidavit that does show an evidentiary basis for the assertion that more than $100,000 is in issue; and if such an attempt is really impossible because of lack of availability of the primary judge's judgment, then that should be not only referred to in the affidavit, but what should then happen is a supplementary affidavit put on as soon as it is possible to provide a satisfactory affidavit.

In an affidavit provided for this application sworn 10 December 2009, there is some evidentiary basis shown for the contention that $100,000 is in issue. Mr Sleight has criticised this material on the basis that it involves assertions and very brief summaries of the evidence rather than, for example, annexing doctors' reports. There is some force in that, but, on the whole, I think the present affidavit does do enough to show that there is over $100,000 in issue in the appeal.

For that reason, I propose to dismiss the notice of motion. I also propose to make the costs of the notice of motion costs in the appeal because, although this application was brought late, the fact does remain that the original affidavit was inadequate.

For those reasons the orders I make are: notice of motion dismissed, and the costs of the notice of motion to be costs in the appeal. oOo