New South Wales Supreme Court CITATION : Azar v Berry Kitchens P/L & Anor [2001] NSWSC 678 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 10694/01 HEARING DATE(S) : 06/08/01 JUDGMENT DATE : 6 August 2001 Elias Azar (Appl) PARTIES : Berry Kitchens Pty Ltd (1st Resp) Fair Trading Administration Corporation (2nd Resp) JUDGMENT OF : Kirby J LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT B V Maloney LCM JUDICIAL OFFICER : COUNSEL : In Person (Appl) M H Southwick (1st Resp) Unrepresented (Appl) SOLICITORS : Macquarie Lawyers (1st Resp) Hunt & Hunt (2nd Resp) CATCHWORDS : Denial of natural justice - Failure to apprise unrepresented litigant of right to object to evidence and seek adjournment DECISION : Ref para 21 THE SUPREME COURT Extempore - Checked OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY J Monday 6 August 2001 10694/01 - ELIAS AZAR v BERRY KITCHENS PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: Mr John Alagha was the owner of premises at 62 Miller Road, Chester Hill. Mr Alagha approached Berry Kitchens Pty Ltd to install a kitchen. It was found by the Magistrate that Berry Kitchens Pty Ltd approached Mr Elias Azar, stonemason, to install a granite bench top in the kitchen. The bench top was said to be defective in various ways. Principally the granite bench top was said to have had various holes which had been filled with resin and was unsightly. 2 Mr Alagha complained to the Fair Trading Administration Corporation which was constituted under the Home Building Act 1999. The Corporation brought proceedings in the Local Court against Mr Azar as first defendant and Berry Kitchens Pty Ltd as second defendant. 3 The bench top was said to have been installed on 21 October 1994. The ordinary statement of claim was issued by the Corporation on 25 June 1998. It was set down for hearing in the Fairfield Local Court before Mr Mahoney, Magistrate, on 14 February 2001. The day before that hearing solicitors instructed on behalf of Berry Kitchens Pty Ltd spoke with Mr Azar. They indicated that they wished to discuss settlement and that the following day they would seek to file a document in Court which stated that Mr Azar was the sub-contractor of Berry Kitchens, such that if the Court held that company responsible it was Mr Azar who was the one who did the job. Mr Azar denied that conversation. I don't believe it is necessary for me to resolve that issue for reasons that I will state shortly. 4 When the matter proceeded before the learned Magistrate the following day Mr Saab, Solicitor appearing for Berry Kitchens, sought leave to file a third party notice which was then tendered to the Court. The discussion, according to the transcript, was in these terms: "Mr SAAB: Your Worship, I also seek leave to file a third party notice. MAGISTRATE: A bit late in the piece, isn't it? MR SAAB: It is, your Worship, but ... MAGISTRATE: Well. MR SAAB: A lot of principles of the State Queensland of general holdings, the facts are exactly the same, your Worship, there's no new evidence to produce for the third party notice it's been served to the whole parties. MR KHANDHAR: Plaintiff consent. MAGISTRATE: All right, of course you would it doesn't affect you in the slight. All right just thought you would be safe Mr Saab." 5 I should mention that the Fair Trading Corporation and Berry Kitchens were represented at the hearing; Mr Azar, however, appeared for himself. He was assisted by his wife. He is a person from Lebanon. He has said the communication with him by the solicitor the day before the hearing was in Lebanese. He, however, speaks reasonable English as demonstrated from the Court transcript and his submissions to me; that is not to say that his English is perfect. 6 It appears from the transcript that at no stage did the learned Magistrate invite Mr Azar to indicate his attitude to the late filing of the third party notice, nor was he asked whether, in the circumstances, he sought an adjournment. 7 The matter then proceeded and various witnesses gave evidence and Mr Azar appears to have cross-examined some but not all. Berry Kitchens relies in part upon a failure of Mr Azar to cross-examine a particular person employed by that company who, on the case which he now seeks to make, was a person who might relevantly have been asked a number of questions to support that case. 8 In the proceedings before me Mr Azar again appears for himself. He is assisted by his wife. He has, however, had the assistance of a lawyer who has prepared submissions which have been annexed to an affidavit upon which he relies. The affidavit complains of a number of things, principally a denial of natural justice resulting in certain unfairness to Mr Azar in not apprising him of his right to object to the third party notice or to seek an adjournment in order to obtain legal advice as to how best he could meet it. 9 Having read the material placed before me three matters are of concern: first, it does not appear that the learned Magistrate ever invited Mr Azar to state his attitude to the late filing of the third party notice and whether, in the circumstances, he sought an adjournment in order to obtain legal advice or evidence to meet the allegations made by that notice; secondly, there is room for the inference on the material that Mr Azar, because of certain advice given to him by a chamber Magistrate before the hearing, may have been at a real disadvantage throughout the hearing because of a belief which that advice may have fostered. 10 The third aspect concerns whether, in the circumstances, the Magistrate was in error in believing himself unable, in the circumstances to apportion responsibility between Berry Kitchens Pty Ltd and Mr Azar, he having expressed the view that both were at fault. 11 Dealing with each of these matters, it is said by counsel for Berry Kitchens that there is no duty on the part of the Magistrate to draw to the attention of a litigant who is unrepresented his right to an adjournment. That right is obvious and had Mr Azar wished to adjourn the matter no doubt he would have sought such an adjournment; nor is there a positive duty, in counsel's submission, for the Magistrate to solicit the views of Mr Azar. Had Mr Azar objected to the course which was proposed, no doubt he would have said so. However, no such objection was made. 12 For my part I am unpersuaded by these arguments. The primary duty of the learned Magistrate was to ensure that there was a fair hearing. He was confronted by an unrepresented litigant, and the unrepresented litigant was the target of the document which Mr Saab, on behalf of Berry Kitchens, sought to tender. As the events demonstrated, matters of some complexity arose. They required not only an understanding of the issues as to apportionment of liability as between Mr Azar and Berry Kitchens but also the right of Berry Kitchens to seek a Bullock order in respect of its costs against Mr Azar. Such an order was ultimately made by the Magistrate. 13 Mr Azar says in his defence that at all times he dealt with Berry Kitchens. He had no dealings whatever with Mr Alagha, the person for whom the kitchen bench was ordered. The selection of the bench top was a matter between Mr Alagha and Berry Kitchens. He was simply told the nature of the material. Indeed, as he stated from the bar table today, his case was or it is his case, perhaps not advanced before the Magistrate, that Berry Kitchens was responsible for the selection of the supplier of the piece of granite to which objection was ultimately taken. 14 Mr Southwick, appearing for the company, says that the case advanced by his client at the hearing was that the matter was dealt with by sample and Mr Azar acknowledged in cross-examination that he was both the supplier and the installer of the bench top. 15 It seems to me that in the circumstances which have been identified, and which I have described, it was important, not simply in a theoretical sense, but in a practical sense, that Mr Azar be told of his right to object to the late service of the third party notice, be told of the implications of that notice by the Magistrate, and be told of his right to seek an adjournment in order to assemble evidence or to obtain legal advice if that is what he wished to do. 16 I believe in the circumstances there was a denial of natural justice. I believe on the facts as identified by Mr Azar that it would not be an exercise in futility in referring the matter back for re-hearing in order to resolve the issues which may exist between the company and Mr Azar. 17 Moving to the second ground, it happens that Mr Azar had seen a chamber Magistrate before the hearing. He had shown the Magistrate the then state of the pleading. The pleading did not include the third party notice. He had been told by the Magistrate that, since on his case at all times the contractual arrangements were with Berry Kitchens and not with him, that he was no vulnerable. As it happens the Magistrate accepted that position and found contrary to the submission of Berry Kitchens that Berry Kitchens had made the contractual arrangements with Mr Alagha and retained Mr Azar as its sub-contractor. However, that brought into play the third party notice in respect of which Mr Azar had not received legal advice, and in respect of which he was vulnerable. I believe it was important that he have legal advice in respect of that document or at least the opportunity to obtain such advice, if he wished to do so. 18 The third aspect concerns a comment by the learned Magistrate that there was fault on the part of both Berry Kitchens and Mr Azar. It rather appears to me from the reasons given by the learned Magistrate that notwithstanding a belief that there appeared to be fault on the part of both Mr Azar and the company, he did not believe himself able to determine any apportionment of liability between the two. 19 Looking at the third party notice it is in these terms: "To the third party: Elias Azar 56 Riverview Road FAIRFIELD. NSW Copies of the statement of claim and notice of grounds of defence in this action are served herewith if you are not already in possession of them. The defendant claims against you contribution towards or indemnity for any judgment recovered against him by the plaintiff in the action for the following reasons: 1. The second defendant (Berry Kitchens) is and was all material times a company duly incorporated pursuant to the laws of New South Wales and entitled to sue in its corporate name. 2. The third party/first defendant (Azar) was at all material times was a licensed tradesman holding a stonemason licence and entitled to be sued in his name. 3. The Azar was the licensed tradesman who supplied and installed a granite bench top to the premises located at 62 Miller Road Villawood. 4. At all material times Azar was the licensed tradesman ultimately responsible in insuring that the granite bench top was supplied and installed in a good and workmanlike manner. 5. Berry Kitchens is entitled to indemnity from Azar against any liability that Berry Kitchens may be determined to have to the plaintiff in these proceedings on the basis that Azar was the contractor ultimately responsible for the work. You have the same rights, and are subject to the same liabilities, in respect of the action as you would have had and been subject to if you had been sued in a separate action by the defendant. You are liable to suffer judgment unless notice of the grounds of your defence, prepared in accordance with the Rules, is received at the Registry at the address shown above within 28 days after service of this third party notice upon you. The notice must include any grounds on which you dispute the plaintiff's claim against the defendant or the defendant's claim against you." 20 It is not clear to me whether the claim was in contract though, presumably, that was what was intended. I am told the Magistrate dealt with it on that basis. Nonetheless, it seems to me important in the circumstances, given the factual context which I have identified, that the learned Magistrate identify the terms of that contract and the way or ways in which they were said to have been breached. Insofar as the breach was depending upon the nature of the stone which, on Mr Azar's case, was supplied by him but through the company having made the selection and identifying the supplier then issues would arise as to responsibility. Insofar as it was Mr Azar who supplied the stone and was responsible for its selection then that needed to be stated. 21 It seems to me there are factual issues that needed to be addressed that were not addressed. My attention has been drawn to section 110 of the Justices Act. However, having regard to the matters which I have dealt with which I believe to be matters of substance and involving errors of law I believe that the appropriate course is to make the following orders: 1. I allow the appeal against the orders made in the action on the third party notice by Berry Kitchens Pty Ltd against Elias Azar; 2. I remit the matter to the Local Court to be determined according to law; 3. I order that the defendant in the proceedings before me, that is Berry Kitchens, should pay the plaintiff's costs, if any. I won't make a suitors' fund order. ******* Last Modified: 08/17/2001 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.