New South Wales Supreme Court CITATION : Bessemer v Ku-Ring-Gai Municipal Council [2000] NSWSC 116 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12453/99 HEARING DATE(S) : Tuesday 29 February 2000 JUDGMENT DATE : 29 February 2000 PARTIES : Lorraine Helen Bessemer v Ku-Ring-Gai Municipal Council JUDGMENT OF : Michael Grove J at 1 COUNSEL : In person ({Plaintiff) G. McVay (Defendant) SOLICITORS : N/A Fox & Staniland CATCHWORDS : Local Courts - Challenge to Finding that Cross Claim Frivolous and Vexatious - Transcript of Reasons Unavailable - Adjournment DECISION : Matter Adjourned THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Tuesday 29 February 2000 12453/99 - LORRAINE HELEN BESSEMER v KU-RING-GAI MUNICIPAL COUNCIL JUDGMENT 1 HIS HONOUR: This matter was listed for hearing today. It was before Sperling J on 29 November 1999 when he fixed the matter for today and at an estimated hearing time of half a day plus. 2 The applicant/plaintiff appears in person and Mr McVay appears for the defendant/respondent, Ku-Ring-Gai Municipal Council. 3 The dispute between the parties commenced, so far as the litigation is concerned, with a summons issued by the council seeking to recover unpaid rates. The amount involved was a little less than $600. The resistance to payment of this account is founded upon a cross-claim which a magistrate dismissed pursuant to the Local Court Rules as frivolous and vexatious. 4 Mrs Bessemer has stated that that conclusion followed an observation by the presiding magistrate that the matters had been litigated previously. 5 The problem is the absence of any transcript of the magistrate's reasons for judgment. The commencement of the challenge to his ruling encountered some procedural difficulties in the sense that the plaintiff in person being, understandably, unfamiliar with the court rules, also was seeking to obtain remedy from this Court at about the time of the change from the previous stated case procedure to procedure by way of summons. Insofar as any time limits have expired, I am of the view that relief should be granted to the plaintiff. 6 There is, however, before the Court, an affidavit handwritten by the plaintiff which, amongst other things, exhibits the cross-claim which she proposed to advance before the magistrate. It would be less than frank of me not to disclose and record that so far as I can perceive that cross-claim is highly unlikely to be sustainable in its terms or at all. 7 Nevertheless the problem has arisen that I do not have before me the transcript of the magistrate's reasons and Mrs Bessemer, the plaintiff, has been in touch recently with the Local Court and has been told that it should be available within the next two weeks. Why such application was not made earlier during the span of three months since Sperling J fixed the matter has not been explored. Nevertheless, I would be reluctant to finally terminate the plaintiff's opportunity to be heard in the absence of being able to read the magistrate's reasons. It is fair to point out that I have also canvassed with counsel for the defendant that the result of my acting peremptorily may be simply to provoke further litigation about a new issue, namely, whether or not acting in such a peremptory manner I denied natural justice or procedural fairness, as it is more properly called, to the plaintiff. 8 The plaintiff got in touch with the solicitor for the defendant last week and it is common ground that she then indicated she wanted an adjournment to enable the production of the magistrate's reasons. Consent was not forthcoming. Given that notice and the knowledge common to both parties that the transcript was not available, it seems to me, that the balance of justice requires that Mrs Bessemer have her adjournment, bleak though I regard her prospects of ultimately obtaining any relief in the proceedings. 9 That leads to the question of today's costs. As I have remarked, no explanation has been offered for the relative recency of application for the magistrate's reasons, although it was pointed out that some of the staff at Hornsby Court have apparently been on holidays. Nevertheless, the defendant has been brought here today and, given the history of the matter and the basis upon which the litigation was terminated before the magistrate, which included judgment for the defendant, for its virtually irresistible claim for unpaid rates, I do not conclude it was unreasonable for the defendant to decline to accede to the request for an adjournment even though as the events have turned out I regard it as appropriate to grant it. 10 The plaintiff must pay the defendant's costs thrown away as a result of the adjournment today. An application was made for an order that those costs be assessed and paid forthwith with a corollary order that proceedings be stayed until payment was made. I decline to make such an order although I state that my reasons for so doing are considerably inspired by the situation of the plaintiff in which she has complained, although irrelevantly to the issues before me, that she has been attempting to pay the council over a long period of years and that she is distressed by the circumstances that the council chose to sue her when, according to her, they well knew that she was doing her best to pay the debt for rates to it. 11 I am, of course, making those remarks having heard only one side of the story and it should not be taken that what I have said is some judgmental conclusion after hearing both sides of the argument. 12 I expressly specify that this matter is not part-heard before me. The orders I propose to make are as follows: 1. The hearing today is vacated and the matter is adjourned. 2. I direct that the matter be placed in a holding list for reallocation of a hearing date when the parties indicate to the Registry that they are ready to proceed. 3. I order the plaintiff to pay the defendant's costs thrown away as a result of the adjournment today including counsel's fees. ********** Last Modified: 09/25/2000 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.