Local Court of New South Wales CITATION: IBM Global Financing Australia v Cousins [2004] NSWLC 5 JURISDICTION: Civil PARTIES: IBM Global Financing Australia Ltd Bradley Cousins FILE NUMBER: 6890/03 PLACE OF HEARING: Downing Centre DATE OF DECISION: MAGISTRATE: Magistrate H Dillon CATCHWORDS: Procedure - Local Court - Small Claims Division - Circumstances in which oral evidence may be given - Whether motion irregularly filed - Dispensation with compliance with Rules LEGISLATION CITED: Local Court (Civil Claims) Act 1970 ss 12, 23A, 23B Local Court (Civil Claims) Rules Pts 1 r5, 15 r (2), 21 r9 CASES CITED: Woodside Petroleum Development Ptyu Ltd v H & R v E & W Pty Ltd SC WA Unrep 28/4/97 Anderson JBC 9701947 Self for applicant REPRESENTATION: Mr R Kemp Norman Waterhouse Solicitors for respondent ORDERS: 1. The order requiring the attendance of the defendant to give evidence in person be set aside.; 2. He is to give oral evidence by way of video link if available, otherwise by way of conference telephone link at a time set by the Court in due course.; 3. Costs of disposal of the motion are to be costs in the cause.; 4. The matter is to be returned to the call over list to be listed for hearing. Judgment 1. This is a motion brought by the defendant who is resident in Western Australia. He applies for an order setting aside a previous order made by an Assessor requiring his attendance for cross-examination in the hearing of the plaintiff's claim for liquidated damages in the Small Claims Division of this court. This motion is, in effect, a request for review of that decision. At the request of the applicant, the motion has been dealt with in chambers. Written submissions were sought from and filed by the respondent. 2. Before proceeding to that question, however, the preliminary issue arises whether this motion is brought regularly. It is submitted by the respondent that it is not because Pt 15 r 1(2) of the Local Court (Civil Claims) Rules ("LCR") limits the purposes for which motions may be brought within the Small Claims division. These are to do with such matters as change of venue, costs, enforcement of judgments made in trade names and so on, most of which could not be relevant here. The only possible avenue for the applicant under the Rules is that it is asserted that the previous order was made irregularly, illegally or without good faith. There does not appear to be any evidence of such irregularities or illegalities or bad faith in this case. It would appear that this motion is therefore itself irregular and could properly be dismissed on that basis alone. 3. Lest I am wrong in that supposition, however, I propose to deal with the merits of the argument. The applicant's primary submission is that it would be inconvenient for him to attend for cross-examination as he would have to travel from WA for the hearing. If Mr Cousins still lives in South Hedland, he would have a considerable distance to travel to Perth for a connecting flight to Sydney. No doubt this would cause him considerable expense. That is unfortunate as, on the evidence on this court's file, Mr Cousins is an invalid pensioner. It is a matter of common knowledge that pensioners are generally have low incomes and few assets. He stated that he is unable to afford to travel to Sydney. If that is so, he submits that there would be an denial of natural justice if the order is not set aside as he would effectively be disabled from giving evidence in the proceedings. 4. The argument put before the Assessor previously by the plaintiff, and which was accepted by him, was and remains that this is a case which will turn entirely on the credibility of the defendant's version of events. The claim is in respect of a sum of money (approximately $3000 when interest is added) said to be outstanding on a contract asserted to have been entered by the defendant with the plaintiff. The defence is that the contract was never entered by Mr Cousins but was executed without his knowledge or consent in his name by his ex-wife. Mr Cousins claims to be unable to read or to write anything other than his own signature. 5. I can fully understand why the plaintiff would wish to cross-examine the defendant on this issue, and why the plaintiff asserts that a telephone cross-examination would be unsatisfactory: Face-to-face cross-examination is generally to be preferred if an adequate assessment of credibility is to be made and there is no other means by the issue can be determined. The Chief Magistrate's Practice Note contemplates that the Small Claims Division may deviate from its usual procedure if an issue of credibility is likely only to be resolved by oral examination of witnesses (or a particular witness). No 3 of 2001 [2] 6. It has, however, been held that, althought it is not the optimal method, it is possible to judge the credibility of a witness through a video-link. Woodside Petroleum Development Pty Ltd v H&R—E&W Pty Ltd (SC(WA) Unrep 28/04/97 Anderson J BC9701947) This court has the power to take evidence by way of video-link and telephone. LCR Pt 23 r 1C. A telephone cross-examination is, naturally, even less satisfactory in gauging the credibility of a witness but, depending on what materials are available for that exercise and the conduct of the cross-examination, it does not seem to me to be an insurmountable problem. 7. Here, moreover, there is other evidence which can be examined on the question. I have had the opportunity to examine the court file and to read the affidavit tendered by the applicant previously. Attached to that affidavit is a copy of the contract in question. It is, of course, a photocopy only and I do not pretend to have handwriting expertise but it is evident from looking at the document that there is a clear similarity between the signature of Debbie Cousins, Mr Cousins's ex-wife, which also appears on the document, and the signature that purports to be that of Mr Cousins. That signature bears little resemblance to the signatures which appear on other documents apparently signed by Mr Cousins, such as his statement of 21 November 2003, his affidavit of 9 September 2003 and a copy of a tenancy agreement he apparently signed on 9 February 2001. Other documents can be tendered to the same effect by Mr Cousins. 8. It is available to the plaintiff to call expert handwriting evidence which, I would have thought, would be very powerful evidence one way or the other if there is a sufficient sample of Mr Cousin's writing to examine. As I have remarked, there appear to be a significant number of examples of Mr Cousins's signature available for examination on the court file (and also perhaps in the possession of the plaintiff already). I do not think that this is a case which turns entirely on the oral evidence to be given by Mr Cousins, nor his demeanour in giving it. Conclusions 9. I agree with the respondent's submission that this motion appears to have be filed irregularly. Nonetheless, the Rules are meant to be the servants of the Court's procedures rather than the masters. See LCR Pt 1 r 5. In an appropriate case, this Court may, if it thinks fit, dispense with strict compliance. I think that this is such a case. 10. There appear to be strong grounds to reason that there may be a denial of natural justice to Mr Cousins if he is required to attend in person in Sydney for cross-examination, because of his inability to attend due to financial constraints, and given that there are other avenues reasonably open to the plaintiff by which to mount its case and to test the defendant's case. It is to be noted that there is no right of appeal from a decision of the Small Claims Division except on grounds of denial of natural justice. This Court must therefore be assiduously careful not to expose a litigant in the Small Claims Division to an unjust result from which there is no right of appeal. I conclude that it would be in the interests of justice to grant the motion. Orders 1. The order requiring the attendance of the defendant to give evidence in person is set aside. 2. He is to give oral evidence by way of video-link, if available, or otherwise by way of conference telephone link at a time set by the Court in due course. 3. Costs of disposal of the motion are to be costs in the cause. 4. The matter is to be returned to the call-over list to be listed for hearing. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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