Portelli v Goh [2002] NSWSC 997

New South Wales Supreme Court

CITATION : Portelli v Goh [2002] NSWSC 997 FILE NUMBER(S) : SC 12861/01 HEARING DATE(S) : 08/10/02 JUDGMENT DATE : 31 October 2002

PARTIES : Appellant - Peter Mario Portelli Respondent - Shueh Liang Goh JUDGMENT OF : Newman AJ

LOWER COURT Local Court JURISDICTION : LOWER COURT 10445/2000 FILE NUMBER(S) : LOWER COURT D Sweeney LCM JUDICIAL OFFICER :

COUNSEL : SOLICITORS : Appellant - Mr Bruce White Respondent - Mr Liang Goh CATCHWORDS : APPEAL, PRACTISE AND PROCEDURE - general principles - s69 Local Courts (Civil Claims) Act 1970 - exercise of a Court's discretion to permit or refuse leave to a lay advocate to appear for an unrepresented litigant - rights of audience of unqualified persons - appeal dismissed LEGISLATION CITED : Local Courts (Civil Claims) Act 1970 (NSW) Pace v Reid [2000] NSWSC 823 Carr v Neil [1999] NSWSC 1263. O'Toole v Scott (1965) AC939 CASES CITED : Damjanovic v Maley [2002] NSWCA 230 Teese v State Bank of New South Wales [2002] NSWCA 219 Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, Court of Appeal, 6 September 1994). R v Schagen (1993) 65 A Crim R 500 House v The King (1936) 55 CLR 499 at 504 - 505 DECISION : Judgment be entered for the respondent plus costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Newman AJ

Thursday 31 October 2002

12861/01 - Peter Mario Portelli v Shueh Liang Goh

JUDGMENT 1 HIS HONOUR: This is an appeal by way of summons pursuant to s69 of the Local Courts (Civil Claims) Act 1970 against a decision given by a magistrate in the Local Court. 2 The appeal with which I am now dealing is one which seeks to set aside a judgment made in favour of the respondent by Magistrate Sweeney on 24 September 2001. Originally the appellant sought to appeal against an earlier decision of Magistrate Garbett when that magistrate declined to add a defendant on the motion of the appellant before her. However events have overtaken the matter and the appellant no longer wishes to pursue the appeal against the order made by Magistrate Garbett on 16 August 2001. 3 The subject of the hearing before Magistrate Sweeney on 24 September 2001 involves a claim made by the present respondent for monies allegedly owing under a lease between the present appellant and another and the present respondent. In the event, her Worship entered a judgment in the sum of $51,939 which judgment sum included the claim for monies owing under the lease, interest, solicitors costs, subpoena expenses and disbursements. 4 In an amended summons bearing the filing date of 28 September 2001 the appellant set out the following grounds of appeal: "2. In respect of the judgment given in the Local Court on 24th September 2001. The magistrate was wrong in law on the question of representation for the appellant in the Local Court on 24th September. The appellant requested the magistrate to allow his friend to appear for him. The magistrate determined the request by referring to Pt37 of the Local Court (Civil Claims ) Rules. The magistrate was told but did not acknowledge that an inherent discretion exists for the magistrate to allow appearance by a person other than a solicitor or barrister. The magistrate asked the solicitor for the plaintiff if he objected to the defendant being represented by his friend. The solicitor for the plaintiff said he did object but gave no reasons. The magistrate refused to ask the plaintiff's solicitor the reason for his objection and refused the appellant's request. The magistrate was wrong in law because either. a) The magistrate did not believe she had a discretion outside the Rules and a discretion does exist despite Part 37 of the Civil Claims Rules . b) If the magistrate did exercise a discretion when she refused the appellant's request to be represented by his friend then the discretion was not properly exercised because the magistrate let the decision be made by the plaintiff's solicitor.