New South Wales Supreme Court CITATION : Miller v Ruscio & Anor [2003] NSWSC 372 HEARING DATE(S) : 29 April 2003 JUDGMENT DATE : 5 May 2003 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The appeal is dismissed; (2) The orders AJB George LCM dated 22 July 2003 are affirmed; (3) The summons is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS : Appeal decision of Local Court Magistrate - Amendment of statement of claim - Adjournment application Local Court (Civil Claims) Act 1970 (NSW) - s 69 LEGISLATION CITED : Local Court (Civil Claims) Rules - Part 16 Supreme Court Rules - Part 20 Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 CASES CITED : Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Ceil Comfort Insulation Pty Limited v ARM Equipment Finance Pty Limited [2001] NSWSC 619 House v The King (1936) 55 CLR 499 Stephen Miller (Plaintiff) PARTIES : Loreto Ruscio (First Defendant) Syeno Pty Limited (Second Defendant) FILE NUMBER(S) : SC 12290/2002 Mr M W Anderson (Plaintiff) COUNSEL : Mr P J Gow (Defendants) Mr Stephen Miller (Plaintiff) SOLICITORS : Mr Evan Economou of Deacons (Defendants) LOWER COURT Local Court JURISDICTION : LOWER COURT 363/02 FILE NUMBER(S) : LOWER COURT AJB George LCM JUDICIAL OFFICER : - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON MONDAY, 5 MAY 2003 12290/2002 - STEPHEN MILLER v LORETO RUSCIO & ANOR JUDGMENT (Appeal decision of Local Court Magistrate - amendment of statement of claim; adjournment application) 1 MASTER: By amended summons filed 2 December 2002, the plaintiff seeks, firstly, an order granting leave to appeal from the decision of LCM AJB George made on 22 July 2003 in Manly local court proceedings 363/02 which refused an adjournment of the plaintiff's notice of motion. The plaintiff, who was the defendant in the Local Court proceedings, submits that the Magistrate's decision was erroneous in law and that it was thereby substantially prejudiced. Secondly, the plaintiff seeks an order setting aside the magistrate's decision refusing the plaintiff's orders sought in the notice of motion as being erroneous in law. The plaintiff relied on his affidavits sworn 2 December 2002 and 21 February 2003. The defendant, who was the defendant in the Local Court proceedings, relied on the affidavit of Luke Paul Aiken sworn 20 December 2002. For convenience, in these proceedings I will refer to Mr Stephen Miller as the plaintiff and Mr Loreto Ruscio as the defendant. The list Judge has referred this matter to a Master for hearing. 2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the appellant to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. Section 69 (2B) provides that despite subsection (2) but subject to subsection (2A) an appeal does not lie to this Court against an interlocutory order except by leave. The orders made by the Magistrate are interlocutory in nature and leave is required. As the plaintiff's claim is unmeritorious and the amount in dispute is $10,000, and for the reasons which appear below, it is my view that justice is best served if leave is refused. The Local Court proceedings 3 On 7 January 2002, the defendant issued a statement of liquidated claim in the Local Court. It named Loreto Ruscio t/as Syeno P/L as plaintiff and Stephen Miller as the defendant and sought payment of the sum of $10,879 for work done and materials provided by the plaintiff for the defendant at the defendant's request. It was pleaded that the services were provided in November 2000 at the defendant's premises at North Balgowlah. 4 On 27 May 2002, the defendant filed an amended statement of claim which was endorsed "pursuant to Part 16 r 2". The amended statement of claim deleted the words "Loreto Ruscio (male) t/as" which left the plaintiff in the claim named as Syeno Pty Limited. The amended statement of claim also re-pleaded and expanded the claims for the work done. 5 On 7 June 2000, the plaintiff's solicitor filed a notice of motion seeking orders that the proposed amendment substituting Syeno Pty Ltd as plaintiff in the proceedings for Loreto Ruscio be disallowed and the proposed amendment to the existing cause of action and the addition of the further causes of action be disallowed. The adjournment application 6 When this motion came before the Local Court, the plaintiff's solicitor sought an adjournment on the basis that he had been served with an affidavit recently and, consequently, he had been instructed to issue subpoenas and needed time to issue them. The Magistrate decided not to grant the adjournment on the basis that he could see no disadvantage to the plaintiff and, in keeping with the spirit of the civil claims rules, the matter needed to be brought to some sort of finality as expeditiously as possible. 7 As Sully J stated in Ceil Comfort Insulation Pty Limited v ARM Equipment Finance Pty Limited [2001] NSWSC 619, at para 35: "The principles according to which this Court is to decide whether the learned Magistrate's discretionary decision to refuse the adjournment application did indeed miscarry are not in doubt. They are stated definitively in a short passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505. It is, I think, useful to re-state them as follows: "The manner in which an appeal against an exercise of 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." 8 The Magistrate considered the merits of the application and in the exercise of his discretion elected not to grant the adjournment. This he was entitled to do. There is no error of law. Whether the amendments in the statement of claim ought to have been allowed 9 The Magistrate heard argument on the substantive issue, specifically, whether the defendant made a mistake in his name which was capable of amendment pursuant to Part 16 of the Local Courts (Civil Claims) Rules, These rules are identical to Part 20 of the Supreme Court Rules. 10 The relevant portions of Part 16 provides: "Part 16 r 1 (1) The court may, at any stage of any action, on application by any party or of its own motion, order that any document in the action be amended, or that any party have leave to amend any document in the action, in either case in such manner as the court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the action, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings. (3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if the person were a party. (3A) An order may be made, or leave may be granted, under subrule (1) notwithstanding that the effect of the amendment is, or would be, to add or substitute a cause of action arising after the commencement of the action, but in such a case the date of commencement of the action, so far as concerns that cause of action, shall subject to rule 4, be the date on which the amendment is made. (4) … Part 16 r 2 (1) A party may, without leave, at any time before a date is fixed for the trial of the action, amend once any document filed by the party. (2) … (3) Subject to subrules (3A) and (3B), this rule applies to an amendment which would have the effect that a person is added as, or ceases to be, a party, as it applies to other amendments. (3A) This rule does not apply to an amendment which would have the effect of adding a person as a plaintiff unless: (a) the plaintiff immediately before the amendment is made acts by a solicitor; and (b) that solicitor at the time the amendment is made certifies on the amended document: (i) that he acts for the person added as a plaintiff; and (ii) that the person consents to being added as a plaintiff; (3B) This rule does not apply to an amendment which would have the effect that a person ceases to be a party unless that person consents to ceasing to be a party. (4) … (5) The rights to amend under subrules (2) and (4) are in addition to the right to amend under subrule (1). Part 16 r 4 (1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the court may, in the circumstances mentioned in that subrule, make an order giving leave accordingly, notwithstanding that that period has expired. (2) … (3) Where there has been a mistake in the name of a party and the court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party. (4) … (5) Where a plaintiff, in a statement of claim, makes a claim on a cause of action arising out of any facts, the court may order that the plaintiff have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim on that new cause of action. (5A) An amendment made pursuant to an order made under this rule shall, unless the court otherwise orders, relate back to the date of filing of the statement of claim. (6) This rule does not limit the powers of the court under rule 1." 11 Part 16 r 1 is the applicable rule. The limitation period has not yet expired so it is not necessary to have regard to Part 16 r 4. 12 The defendant deposed that he was listed as the plaintiff in the Local Court proceedings, and was a director and shareholder of Syeno Pty Limited and as such was authorised to make an affidavit on behalf of Syeno. The main business of Syeno was concreting. Syeno contracted with Barclays Homes (Australia) Pty Ltd to perform work at the plaintiff's house at 11 and 11A Coramba Street, North Balgowlah. Syeno separately contracted with the plaintiff to do work at the plaintiff's premises and the claim against the plaintiff was in relation to that work. The defendant physically performed the work himself. 13 In January 2002, the defendant attended the registry at Fairfield Local Court in order to prepare a statement of liquidated claim. According to the defendant, the registry staff drew the statement of claim, as he was not legally represented and had not obtained legal advice in relating to the drafting of the statement of claim. The defendant deposed that it was a misunderstanding between himself and the registry staff regarding the proper identification of the plaintiff and that the plaintiff to the claim should have always been Syeno. As a result of this misunderstanding, the plaintiff was incorrectly named as "Loreto Ruscio trading as Syeno Pty Limited". The defendant stated that this should not have been the case as he does not trade as Syeno Pty Limited as Syeno Pty Limited is the company of which he is the director and shareholder. He retained a solicitor in relation to this matter was when he attended the offices of Galluzzo Golotta Andriano Simone Barristers and Solicitors in about December 2000. At the time, they were only retained to prepare a letter of demand and were not retained to prepare a statement of liquidated claim. However, this notice of demand describes the plaintiff in the same way as it was in the original statement of claim. The invoice however, refers to the plaintiff as "Syeno Pty Limited". 14 The Magistrate stated: "It's difficult to see what disadvantage the defendant confronts. The average person not being well versed in the niceties of the law would assume I think that they were being sued by Syeno Pty Limited given the terms of the original Statement of Claim. Loretta Rushyo trading as. There's no doubt where the claim is coming from. The affidavit prepared by Rushyo certainly suggests that he has gone to the Court at Fairfield and sought some assistance from the registry staff and quite possibly handed over a letter in much the same terms as the letter of 1 December from Galuzzo Ballotta Adriana Simone (?) which the court staff have then proceeded to act on as being the appropriate way to describe the plaintiff. I can't see that there is any disadvantage at all to the defendant by what is being proposed. In my view the Notice of Motion is unnecessary and certainly against the spirit of the civil claims rules which certainly try to get matters resolved as expeditiously as possible and in the one proceedings. Any person viewing this objectively would say that there is no disadvantage to the defendant by the change in the name, however unusual it might be and that commonsense would tell the Court where the nature of the claim was coming from. In the circumstances the Notice of Motion is refused." 15 Part 16 r 1 gives a wide discretion to allow amendments. Amendments shall be made to correct any defect or error in any proceedings or to avoid the multiplicity of proceedings. 16 In the Local Court proceedings, the plaintiff submitted that the defendant should discontinue the proceedings and commence fresh proceedings naming Syeno Pty Limited as the plaintiff. While it is unusual for the defendant not to have known its true identity, the Magistrate had a wide discretion as to whether or not to grant amendments under Part 16(1). He was entitled to permit the amendments so that the real issues in dispute between the proper parties could be argued at the hearing. There was no utility in dismissing one set of proceedings in order that the correctly named plaintiff would be obliged to commence fresh proceedings for the same cause of action. The appeal is dismissed. The orders of the Magistrate dated 22 July 2003 are affirmed. The amended summons is dismissed. Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. 17 The court orders that: (1) The appeal is dismissed. (2) The orders of AJB George LCM dated 22 July 2003 are affirmed. (3) The summons is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** Last Modified: 05/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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