Cohen & Anor v Blair & Anor [2000] NSWSC 1076

New South Wales Supreme Court

CITATION : Cohen & Anor v Blair & Anor [2000] NSWSC 1076 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 12573 of 2000 HEARING DATE(S) : 23/10/2000; 25/10/2000 JUDGMENT DATE : 22 November 2000

Philip Lawrence Cohen & Jennifer Anne Cohen (appellants) PARTIES : Robert Charles Blair & Susan Lucy Blair (respondents)

JUDGMENT OF : Hidden J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT J Swanson, LCM JUDICIAL OFFICER :

COUNSEL : Appellant in Person Respondent in Person SOLICITORS : CATCHWORDS : LOCAL COURT - appeal from decision in Small Claims Division - no question of lack of jurisdiction or denial of natural justice Local Courts (Civil Claims) Act 1970 LEGISLATION CITED : Residential Tribunal Act 1998 Residential Tenancies Act 1987 CASES CITED : Barendse v Comp-General (Customs) (1996) 93 ACrim R 210 Murray v Hay [2000] NSWSC 190. DECISION : Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J Wednesday 22 November 2000 No 12573 of 2000 Philip Lawrence Cohen & Anor v Robert Charles Blair & Anor Reasons for judgment

1 HIS HONOUR: This is an appeal from the decision of a magistrate in a Small Claims Division matter. The appellants had been the tenants of premises owned by the respondents at Saratoga on the Central Coast of New South Wales. The lease was terminated prematurely and the respondents commenced proceedings in the Local Court claiming unpaid rent, the costs incurred in securing a new tenant, and expenses arising from cleaning the premises and effecting certain repairs. The matter was contested, the parties appearing without legal representation. In all, the respondents claimed $1,356.75 plus court costs. The learned magistrate found the majority of their claims made out, and entered judgment for $866.45 plus court costs and disbursements. 2 The parties were also unrepresented in this Court and the matter was argued by Mr Philip Cohen, the first appellant, and Mr Robert Blair, the first respondent. Mr Blair was formerly in practice as a solicitor but is now the proprietor of a small business. 3 The appellants filed a summons seeking leave to appeal against the magistrate's decision, but I do not understand that leave is required. A right to appeal against the decision of a magistrate in a civil claim is conferred by s69(2) Local Courts (Civil Claims) Act 1970. However, s69(2A) permits an appeal from a decision in the Small Claims Division only on the ground of lack of jurisdiction or denial of natural justice. The appellants' summons sets out eighteen grounds of appeal, none of which on its face meets the requirements of that sub-section. However, at the hearing of the appeal the argument centred upon three issues only. 4 Firstly, Mr Cohen expressed concern that the magistrate may not have been impartial because it appeared to him that Mr Blair was known to staff at the Gosford Local Court, where the matter was heard. Mr Blair acknowledged that that was so, as he had practised as a solicitor in that area and had appeared from time to time at that court. However, he denied that he was personally known to the magistrate and there is nothing to suggest that he was. Equally, there is nothing to suggest any improper communication to the magistrate by any member of the court staff about Mr Blair. I am sure that his Worship would have disqualified himself from hearing the matter if there had been. There is no basis on which his Worship's impartiality could be questioned. 5 Secondly, Mr Cohen argued that the dispute should have been resolved by the Residential Tribunal, established by the Residential Tribunal Act 1998. By s16 of the Residential Tenancies Act 1987, the Tribunal would have had jurisdiction to deal with the matter. It does not follow, however, that the Local Court could not also have done so. The position may well have been different if the respondents had chosen to proceed by way of application to the Tribunal: s22 of the Residential Tribunal Act, but they did not. It is clear that the learned magistrate had jurisdiction to hear the case. 6 Thirdly, Mr Cohen complained that the magistrate's reasons are inadequate and that the arguments he advanced in defence of the respondents' claim do not appear to have been considered. The parties had provided written statements and accompanying documentary material. His Worship received that material, inviting Mr Cohen and Mr Blair to speak to it before he had read it. He then read the material in his own time and gave judgment a week later, without inviting the parties to address him further. No objection was taken to this course in the Local Court or before me. No doubt, it is a practical approach to cases of this kind and is consistent with the injunction in s23B(1) of the Local Courts (Civil Claims) Act that proceedings in the Small Claims Division "be conducted with as little formality and technicality as the proper consideration of the matter permits". The situation is very different from that with which I was dealing in Murray v Hay [2000] NSWSC 190. 7 It is true that the magistrate's reasons for judgment are very brief, given that he was called upon to deal with a number of disputed questions of fact. I also feel some concern about his Worship's finding that the appellants' conduct in terminating the lease prematurely reflected adversely upon their credibility. It is unnecessary to examine the circumstances in which the lease was terminated. It is sufficient to say that they appear to me to be a tenuous basis upon which to resolve the conflicting versions of events appearing in the material presented to the court. His Worship did not have the advantage of observing any of the parties giving oral evidence: Barendse v Comptroller-General of Customs (1996) 93 ACrim R 210 at 216-24 8 That said, it is to be remembered that not all of the respondents' claims were upheld. Brief as his reasons were, it does not appear that his Worship considered the matter with an uncritical eye. In any event, nothing which Mr Cohen raised in criticism of the magistrate's approach amounts to a denial of natural justice so as to found an appeal under s69(2A) of the Local Courts (Civil Claims) Act. 9 It follows that the appeal must be dismissed. **********