A & P Parkes Constructions v Brad Horn [2001] NSWSC 608

New South Wales Supreme Court

CITATION : A & P Parkes Constructions v Brad Horn [2001] NSWSC 608 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11447/01 HEARING DATE(S) : 20/6/01 JUDGMENT DATE : 20 June 2001

PARTIES : A & P Parkes Constructions pty Limited v Brad Horn T/as Brad Horn Concreting JUDGMENT OF : O'Keefe J

LOWER COURT Local Court JURISDICTION : LOWER COURT 149/00 (Toronto) FILE NUMBER(S) : LOWER COURT Magistrate C A Elliott JUDICIAL OFFICER :

COUNSEL : Mr S Ioannou - For plaintiff Mr M Pesman - For defendant For plaintiff: Macedone Christie Willis Jannali NSW SOLICITORS : For defendant: Ross Fiddes Solicitors New Lambton NSW CATCHWORDS : Local court - Ambit of appeal from local court (civil) - Refusal of adjournment - Withdrawal of legal representative - Natural justice - Procedural fairness - Failure of party to comply with directions Pace v Read [2000]NSWSC 823, 18 Auugst 2000 (unreported) Kojima v Australian Chinese Newspapers [2000] NSWSC 1153; 7 December 2000 (unreported) CASES CITED : House v The King (1936) 55 CLR 499 Connelly v Department of Local Government & Ors (1985) 11 IR 362 Queensland v J L Holdings Pty Ltd (1996-97) 189 CLR 146 DECISION : Summons dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES SYDNEY COMMON LAW DIVISION

CORAM: O'KEEFE J

Wednesday, 20 June 2001

11447/01 - A & P PARKES CONSTRUCTIONS PTY LTD -V- BRADHORN JUDGMENT

1 HIS HONOUR: This is an appeal by way of summons against a decision of a Magistrate sitting in the Local Court of Toronto in which he gave judgment for $17,392.04 in favour of the plaintiff in the action before him. 2 That action had been instituted by Bradhorn, trading as Bradhorn Concreting and was against A & P Parkes Constructions Pty Ltd. The amount of the award was made up of a claim of $10,137.50, court costs of $345, professional costs of $3767.75, witnesses' expenses of $1000 and interest of $2141.79. 3 The judgement in favour of the plaintiff in that matter was as a result of a hearing at which the defendant in those proceedings was not represented. That arose in circumstances in which on the day of the hearing the agent for the solicitor for the defendant sought an adjournment. That adjournment was refused. As a consequence of that refusal the agent withdrew from the proceedings before the Magistrate, who then heard the matter and entered the judgment to which I have referred. 4 In the summons presently before the court there are nine grounds of appeal. However the case really involves consideration as to whether or not in refusing the adjournment the Magistrate denied the defendant in the proceedings before him natural justice. It is common ground between the parties before this court that if the Magistrate relevantly erred in refusing the adjournment then the judgment cannot stand and the matter would have to be remitted to the Local Court. If, however, the Magistrate did not relevantly err in refusing the adjournment, then his decision in relation to the entry of judgment should stand. 5 The claim by Bradhorn arises out of work done and materials provided in 1998. The action was commenced in the Local Court claiming the value of the work done and material provided. A date for call-over was notified to the parties. 6 The matter was the subject of a notice of listing on 26 October 2000 and of a call-over notice on 22 December 2000, which nominated the listing date in the matter as 17 January 2001. That was a date on which directions would normally have been given in relation to the preparation of the case and a date fixed for hearing. However on that date there was no appearance on behalf of the defendant in the proceedings and as a consequence the defence of the defendant was struck out. 7 However, it appears that the non-appearance occurred because of a failure on the part of the agent for the solicitor for the defendant to record the date and to appear. As a consequence of a notice of motion the order of 17 January 2001 was vacated and the defence was reinstated. 8 On that same date, a date for hearing was fixed for 27 April 2001 and notice of such hearing date was given to the parties formally on 1 February 2001. 9 It appears that at the same time as the hearing date was fixed an order was made by the Magistrate that the parties to the proceedings in that court file statements of their evidence by 13 April 2001. As is clear from the material before the court, the plaintiff in the proceedings before the Local Court complied with that order; the defendant, who is the plaintiff in these proceedings, did not. It is also clear that no application was made on behalf of the defendant before the Local Court for an extension of time within which to file the statements or take other steps. It is also clear that no summons or subpoena for records, of either the telephone carrier, Telstra, or other entities was sought. 10 The defence filed on behalf of the defendant in the proceedings before the Magistrate was most general. In the absence of particularisation and due to the non-compliance by that defendant with the Magistrate's order for the filing of statements, it is likely that there could have been prolongation of the proceedings before the Magistrate had they proceeded on the date fixed for their hearing. 11 However, the solicitors for the defendant in the Local Court advised on 24 March 2001 that they would be seeking an adjournment. The basis of that adjournment was the prospect of a change in counsel. Counsel briefed in the matter, it was said, would not be available in Toronto on the date fixed for hearing but would have been available to appear on that date in Sydney had the matter been heard in Sydney. Of course it was never going to be heard in Sydney. It was filed in the Toronto court, was listed for hearing in Toronto. Quite understandably, the solicitors for the plaintiff indicated that they would consent not to an adjournment. 12 The first reason for the proposed adjournment having been rejected, the solicitor then advised that they would be seeking an adjournment because of "circumstances beyond (their) client's control in relation to the gathering of evidence". That basis for adjournment was not advanced until 24 April 2001. It was rejected on behalf of the plaintiff. It was further pressed again on the very same day, but this time on the basis that there had been difficulties experienced "in obtaining certain records from the owners of the premises where the work was carried out, including telephone records". How the owners of the premises, unless they themselves were Telstra (and that does not emerge from the evidence), could be responsible for the non-obtaining of telephone records is a mystery unsolved by the evidence and unexplained from the bar table. 13 The matter came before the Magistrate and an application was made for adjournment. After an initial adverse response the solicitor for the defendant in those proceedings argued the matter at some length and the Magistrate having considered that argument, delivered a short judgment. In it he recited the following: