New South Wales Supreme Court CITATION : Carver v Stevens & Anor [2003] NSWSC 692 HEARING DATE(S) : 11 July 2003 JUDGMENT DATE : 30 July 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. CATCHWORDS : Appeal from Local Court - no error of law - misconception as to issues. LEGISLATION CITED : N/A CASES CITED : N/A Mark Andrew Carver (Plaintiff) PARTIES : v Colin Stevens (First Defendant) Dick Smiths Electronics Pty Limited (Second Defendant) FILE NUMBER(S) : SC 10012 of 2003 COUNSEL : N/A (Plaintiff) Mr R Johnson (Defendants) SOLICITORS : Star Carver & Sons (Plaintiff) Burt & Allen (Defendants) LOWER COURT Local Court JURISDICTION : LOWER COURT 132 of 2001 Local Court Bankstown FILE NUMBER(S) : LOWER COURT J E Betts, LCM JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Wednesday 30 July 2003 10012 of 2003 Mark Andrew Carver v Colin Stevens & Anor JUDGMENT 1 MASTER: The second defendant appointed the plaintiff to the position of casual salesperson at its Bankstown Square store. The terms of employment may be found in the copy document which is Exhibit B in these proceedings. 2 I shall briefly refer to certain of those terms. The employment was to commence on 18 April 2000. The employment was expressed to be subject to a three-month probationary period during, and at the end of which his performance was to be reviewed. Termination could be effected by either party on one week's notice. 3 The plaintiff served the probationary period. On the day that it came to an end, his employment was terminated. 4 The plaintiff brought abortive proceedings in the Industrial Commission. It appears that these proceedings foundered because of jurisdictional problems. 5 The plaintiff then brought proceedings in the Local Court. A copy of the Ordinary Statement of Claim is Exhibit A in these proceedings. 6 This pleading is a somewhat puzzling document. It seems to be common ground that the case propounded in the Local Court was one founded in tort. 7 The pleading in paragraphs 3 and 4 alleges the making of a representation and the plaintiff's reliance on that representation. It does not plead any duty of care. However, it does plead a breach of duty owed to the plaintiff. The breach is specified to be the wrongful termination of the plaintiff's employment at 5.45 pm on 17 July 2000 without giving the plaintiff any notice. 8 The court has been told that the allegations made in paragraph 6 of the pleading and the alternative causes of action pleaded in paragraph 8 were not pressed. 9 There is a claim for loss and damages. The particulars of injury were emotional trauma, anxiety, stress, nervous shock and emotional distress. It was said in this Court that the claim was in the order of $6 – 7,000. 10 The claim was heard by Betts, LCM. The hearing proceeded over three days. The plaintiff gave evidence. His mother and father gave evidence. Two employees of the second defendant (Colin Stevens and Amanda Mula) also gave evidence. 11 The learned Magistrate was confronted by conflicting evidence. She made findings as to credibility. She accepted the evidence of Mr Stevens and Miss Mula. She found Mr Carver's evidence to be wanting in a number of respects. 12 She did not accept that the alleged representation had been made. She was satisfied that Mr Carver's work performance caused the termination of his employment. She was not satisfied that the plaintiff had suffered any psychiatric injury or any other injury as a result of the dismissal. She proceeded to say that she was not satisfied that the plaintiff had made out his claim in any area as outlined in the pleadings. She entered a verdict for the defendants. 13 Although it was not expressly said, it is implicit in the findings that the allegation of breach of duty had failed. 14 On 6 January 2003, the plaintiff filed a Summons in this Court. It seeks to bring an appeal from the decision of the learned Magistrate. It is accepted by the plaintiff that he bears the onus of demonstrating error of law which justifies the disturbing of the decision. 15 The plaintiff's father appeared for the plaintiff on the appeal. Mr Johnson of counsel appeared for the defendants. 16 On behalf of the plaintiff, lengthy and detailed submissions have been made. I have read and listened to those submissions. An attack is made on various findings of fact made by the learned Magistrate. Largely, these relate to findings made in respect of work performance and the justification for the dismissal. There was challenge to her assessments of credibility. 17 Although these attacks were presented as being made in relation to findings upon which there was no evidence, in substance it was being said that the learned Magistrate should have made different findings on the evidence before her. The findings were based on evidence and were made after she had made assessments of credibility. These matters did not give rise to any error of law. 18 Be that as it may, these attacks were not directed to the real grounds on which the plaintiff's case failed in the Local Court. It failed inter alia because there was a failure to prove the alleged representation and a failure to demonstrate a breach of duty. 19 I need not dwell on the deficiencies of the plaintiff's pleadings. The precise nexus between the alleged representation and whatever the duty of care was never seems to have been enunciated and at all times remained unclear. However, the case was presented and dealt with on the basis that there was a connection between the alleged representation and the alleged duty of care. 20 There were submissions made on behalf of the plaintiff which could suggest that the plaintiff's case was one of wrongful dismissal. This was not the case run in the Local Court and to the extent these submissions were pressed they were misconceived. 21 I am not satisfied that there was any error of law. The onus borne by the plaintiff has not been discharged. 22 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. ********** Last Modified: 08/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.