Bahraini v Atkinson & Anor [2002] NSWSC 659

New South Wales Supreme Court

CITATION : Bahraini v Atkinson & Anor [2002] NSWSC 659 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 13965/01 HEARING DATE(S) : 23 July 2002 JUDGMENT DATE : 29 July 2002

Joseph Bahraini PARTIES : Santina Atkinson Thomas Geoffrey Cleary LCM JUDGMENT OF : Sperling J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 2164/01 FILE NUMBER(S) : LOWER COURT Cleary LCM JUDICIAL OFFICER :

COUNSEL : Mr E White for the Plaintiff Mr R McHugh for the First Defendant SOLICITORS : John Byrnes and Associates Solicitors for the Plaintiff Horowitz & Bilinsky Solicitors for the First Defendant CATCHWORDS : Appeal - appeal from Local Court - refusal of adjournment LEGISLATION CITED : Suitors Fund Act 1958 CASES CITED : House v The King (1936) 55 CLR 499 DECISION : 1. Appeal allowed; 2. Verdict for the defendant set aside; 3. Remit the proceedings to the Local Court for determination according to law; 4. The first defendant to pay the plaintiff's costs of the appeal; 5. The first defendant to have a certificate under the Suitors Fund Act 1958.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Duty List

Sperling J

Monday, 29 July 2002

13865/01 Bahraini v Atkinson & Anor

Judgment 1 His Honour: On 22 November 2001, proceedings were heard by Mr T G Cleary, magistrate, sitting in the Local Court. His Worship entered a verdict for the defendant on the plaintiff's claim, having refused an adjournment requested by the plaintiff. The appeal is against the final order but, in substance, it is against the decision to refuse the adjournment. The purpose of the adjournment was to obtain further evidence. The proceedings below and on appeal were conducted on the common understanding that, without further evidence, the entry of a verdict in favour of the defendant was unchallengeable. 2 The plaintiff in the summons on appeal is Mr J Bahraini ("the plaintiff"). The first defendant on appeal is Ms S Atkinson ("the defendant"). The second defendant on appeal is the learned magistrate. In the Local Court, the plaintiff and the defendant were plaintiff and defendant respectively. 3 The plaintiff and the defendant were respectively tenant and landlord of residential premises. The claim in the Local Court was for damages for alleged conversion by the defendant of household furniture and furnishings the property of the plaintiff. A pre-trial direction had been given for the exchange of witness statements but neither side complied with the direction. 4 The plaintiff was represented by Mr Buckman of counsel at the hearing in the Local Court. The defendant was represented by Mr Docker, solicitor. 5 The plaintiff's evidence was that he last occupied the premises in July 1997, that he was then overseas and, later, in prison, that he returned to the premises to recover his property, and that he was shown certain furniture in a shed, which the defendant asserted was his but which the plaintiff asserted was not (with the exception of a washing machine). 6 When that evidence had been given, the learned magistrate observed that there was no evidence as to the value of the property. The plaintiff's case was reopened and further evidence was given. The learned magistrate then made, in effect, the same observation. It was at this stage that application was made for an adjournment, for the purpose of obtaining expert evidence as to value. The application was refused and the verdict was entered for the defendant. 7 It is not possible to tell from the transcript precisely where the learned magistrate's reasons for refusing the adjournment begin. I should not take into account observations made purely in the course of argument. On the other hand, I should not omit reference to matters which the learned magistrate intended to be taken as part of his reasons for decision. Doing the best I can, I take the following passage from the transcript as incorporating the learned magistrate's reasons for refusing the adjournment. "BENCH: Well, he knew the position, when the case is fixed for hearing you have to prepare yourself, come to court, present your case, and the Court then is able to make a decision. You can't put the Court to inconvenience. You can't put parties to inconvenience, you can't put counsel or legal practitioners to inconvenience. You have to look after your own affairs. Now [ in] many of these cases costs would cover the situation, but I don't know whether really costs is the answer to this problem when the plaintiff hasn't done what I would have expected him to do, and I think what any reasonable person would have expected him to do. If I had to present a case to court, I would do my utmost to ensure that I was in a position to present my case, and get everything necessary to present evidence to support my claim. Now, maybe he didn't understand the law, that was all the more reason why he should have sought advice through a legal practitioner. Chamber magistrates are also available if you don't understand the law. "He who asserts must prove." That's an old saying. He has been talking about the law of this country, and there is a law in this country. I have to abide by it, and so does everyone else. But unless you abide by the law then you can't complain about the law. There is a law requires you to prove a case when you assert a claim then so be it. You have to prove your case. And if you say there is some person owes you money because they have done the wrong thing by you, then you have to be in a position to show to the Court how much money is owed. That seems basic and elementary to me. BUCKMAN: Well, your Worship, all I can submit is he instructs me as a legitimate claim, and notwithstanding that he may have done things a bit sooner, and perhaps it would have been in his best interests to have been represented from the outset, I would ask your Worship to allow him to have this claim assessed on the merits, and that -- BENCH: The hearing could have been finalised today – it means additional expense would go to the defendant. The other additional expense wouldn't be fully know [n] until the case is finally determined. But then if you were in a difficult position as to proof also, Mr Buckman, then you should as you know have approached the Court immediately by way of motion, seeking that the hearing date be vacated. Now the chances are that it may well have been vacated if you were instructed a mere three days prior to the hearing – it doesn't give you very much time to organise statements, to organise evidence, to organise witnesses. The plaintiff bore that responsibility up until the time he handed it over to you. But you should have considered your position also. BUCKMAN: Well, your Worship I was just trying to help him as much as I could, that's why I asked him those questions as to whether there was any directions made for exchange of statements. That's why I tried to contact my friend. BENCH: Well, you can't really rely on persons when you ask them those questions, because, as indicated here, a lot of people don't understand, and [I] can accept that. But if you don't know you should seek advice. And the unfortunate part here, this case was fixed for hearing so long ago, four months and 11 days, that's a long time, the plaintiff himself would have expected the case to complete today. Likewise the defence. But this is a situation which has been created by the plaintiff himself. Now, maybe that some would say that interests of justice would be affected adversely if I refused to grant an adjournment, but that's not the only consideration. Some would say that costs would meet the defence here. That's not the only consideration, either. What is a consideration is that the Court is in a position to proceed, the plaintiff has not complied with, through ignorance perhaps, a direction in the first instance, nor with his responsibility to properly prepare his case and present it – "He who asserts must prove", and it seems to me that he really wasn't doing himself a favour by instructing a legal practitioner three days prior to the hearing to represent him at a hearing, when other matters had not been complied with by way of service of statements, which is now a requirement in all these cases, and has been a requirement for years. BUCKMAN: Yes. That's why I asked him that question, the first question I asked him. BENCH: Perhaps in a fraud case there is some reluctance by some Registrars not to [sic] give directions, but that's the only occasion when directions would not be given in claims under the Local Courts Civil Practice, the Civil Courts Act. And of course in small claims, which is up to $10,000, the cases are determined on statements, unless a direction is given for the attendance of a witness to be cross examined – but that's exceptional. And the other thing that concerns me is the value of this property. I think the claim, on my assessment, is far in excess of what he would be entitled to in any event. It's probably a case that would come within the small claims division. Probably, and as I say I don't know what the true value of this property is, and that's the issue here, the evidence is not available to me to allow me to proceed beyond the case to answer. As for discretion, and I think when I consider all those reasons, including the prejudice to the vendor by the further adjournment referred to by Mr Docker, that's not the most important consideration, but when you have a look at the role I think played by the plaintiff here, he [has] really created the situation himself and I think the interests of justice demand that I should not further adjourn the proceedings. And I have a discretion, I don't think that costs would properly meet the interests of justice here in all the circumstances, and the fact, as you indicate, that he was in financial difficulties up until a short time ago to afford legal representation is really not a consideration, so that in the exercise of my discretion I refuse to further adjourn the proceedings." 8 The principles relating to adjournment and to appeal based on refusal of an adjournment are well settled. The following statements of principle are taken from Ritchie's Supreme Court Procedure. They are supported by the authorities cited in the text. There is a general principle that proceedings brought on for trial by the proper process should be heard and determined at the time fixed for trial. But the court does have an inherent power to adjourn the hearing of any matter in order to do justice between the parties. The granting of an adjournment is a matter for the discretion of the trial judge. Where there is a proper basis for the application, and refusal would seriously prejudice a party, then the adjournment should ordinarily be granted. At least this is so where an adjournment would not prejudice the other party. An appellate court will be extremely slow to allow an appeal on the basis of a wrongful refusal of an adjournment. This is because the carriage of the trial is within the discretion of the trial judge, and it will only be if that discretion was not exercised judicially or was based upon the wrong principle or that gross injustice comes about, that an appeal will be successful. 9 The principles applicable to review of a discretionary determination were stated as follows in House v The King (1936) 55 CLR 499 at 504-5: "The manner in which an appeal against an exercise or discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 10 The failure to serve a witness statement in relation to the value of the property was not relevant. On the assumption that expert evidence was necessary, it was the failure to appreciate that this was so – not the absence of a witness statement – which led to the need to apply for an adjournment. And it is not asserted that an adjournment would have prejudiced the defendant in some way which would not have been so if a witness statement had been served. 11 There was insufficient information before the court to enable a finding to be made that the plaintiff was unlikely to be good for an order for costs thrown away as a result of the adjournment. 12 There was insufficient evidence before his Worship of any serious prejudice to the defendant not compensable by an order for costs. The suggestion that the property held by the defendant might be vandalised or otherwise damaged or lost before the hearing was resumed could not be sustained as a valid consideration in the context that the defendant had held what the defendant contended was the plaintiff's property for something more than four years at the time of the trial. 13 On the assumption that there was a lacuna in the plaintiff's proofs for lack of expert evidence as to the value of the property, this was a straightforward case of ignorance on the part of the plaintiff, in the preparation of the case before counsel was briefed, and / or of oversight or misjudgment on the part of counsel. 14 Failure to grant the adjournment effectively deprived the plaintiff of a determination of the proceedings on their merits. That was a serious prejudice. There was no basis on which to find any material prejudice to the defendant arising from an adjournment that would not have been substantially compensated for by an order for costs. In these circumstances, the balance of interest was so plainly in favour of granting the adjournment that the failure to do so was a miscarriage of the court's discretion constituting error of law. 15 I make the following orders: