New South Wales Supreme Court CITATION : MAHMOUD v ABBAS [2002] NSWSC 691 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10586/02 HEARING DATE(S) : 9 July 2002 JUDGMENT DATE : 9 July 2002 Tosson Mahmoud (Plaintiff) PARTIES : v Hassan Abbas (Defendant) JUDGMENT OF : Adams J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : COUNSEL : Plaintiff in person Mr Patrick Griffin (Defendant) SOLICITORS : Plaintiff in person Defendant in person LEGISLATION CITED : Local Courts (Civil Claims) Act 1970 DECISION : Summons dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J TUESDAY 9 JULY 2002 10586/02 TOSSON MAHMOUD v HASSAN ABBAS JUDGMENT 1 HIS HONOUR: This is an appeal under s 69 of the Local Courts (Civil Claims) Act 1970 from the decision of an assessor sitting at Parramatta Local Court on 13 November 2001. That date had been fixed by the assessor following a hearing on 9 October 2001 at which the assessor received evidence from the parties. It is disputed by the plaintiff that the time was fixed on the second date at 4pm to suit his convenience as a teacher. He did not appear at 4pm and the assessor proceeded to complete the hearing and gave judgment against him. 2 The plaintiff filed a notice of motion seeking to set aside the assessor's decision, giving an explanation for his absence on the 13 November 2001. That notice of motion was served on the 5 December 2001 and the affidavit in support states the reasons then given by the plaintiff for his non-attendance. Those reasons are that the plaintiff wished to set aside the judgment of 13 November because he could not come to Court on time at 4 o'clock. He said - "For reasons totally beyond my control for the matter slipped off my mind and I only remember it at 3.40pm because of tragic event on the previous day which stressed me heavily and as a result went to bed very early and very exhausted and consequently be aware of the appointment of the 13 November 2001 and completely forget that appointment. I am shocked, angry and very sad because of forgetting that appointment. I possess strong evidence and documents to present to Court to show clearly I am not in debt to Hassan Abbas. I need another chance to present my documents and evidence to Court and for the Court to set another date for hearing. I called Court at 3.40 on 13 November 2001 to allow me to come at 4.45 but it refused and the assessor refused to speak to me." 3 In affidavits tendered in this Court the plaintiff has elaborated extensively on this explanation. I do not propose to set out that elaboration. In his affidavit of the 4 March 2002 the plaintiff asserted the assessor said, when setting the time and date for the resumed hearing, that if the plaintiff was unable to be there because of work he would wait after 4pm. I am sceptical as to the reliability of this assertion, given its absence from the affidavit in support of the plaintiff's notice of motion, which is set out above. However, accepting that such an adjustment was offered, the plaintiff's reason for not attending was that he had simply forgotten. The plaintiff said that he remembered the appointment at 3.40pm and spoke to an officer in the Court to inform the assessor that he could arrive at the Court at 4.45pm. His request to speak to the assessor was denied. The plaintiff objected to the tender by the defendant of the assessor's notes of the proceedings which may have explained the reasons for which the assessor refused either to speak to the plaintiff or further adjourn the hearing. I rejected it principally on the ground that it was difficult to read and the plaintiff asserted that he was unable to understand it. It is evident that the plaintiff has an excellent command of English, especially in its written form, but in the circumstances I was not prepared to reject his assertion that he was unable to decipher the proffered notes. However the plaintiff has not himself sought to tender those notes and the Court is therefore left in the position where it does not know the reasons given by the assessor, if any, for proceeding with the matter despite the plaintiff's absence. Nor am I able to say at what time the assessor proceeded with the resumed hearing. 4 Having regard to the nature of the proceedings under the Local Courts (Civil Claims) Act 1970 I do not think there is a proper basis for me to conclude as a matter of law that the assessor was bound to adjourn the proceedings, as was apparently requested through the officer of the Court through which he, the plaintiff, communicated. 5 The mere fact that the matter proceeded in the absence of the plaintiff does not demonstrate an error of law. Accordingly the summons is dismissed with costs. ********** Last Modified: 08/09/2002 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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