Nagle v Trustees of the Christian Brothers [2003] NSWSC 1214

New South Wales Supreme Court

CITATION : Nagle v Trustees of the Christian Brothers [2003] NSWSC 1214 HEARING DATE(S) : 1 and 4 December 2003 JUDGMENT DATE : 4 December 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Proceedings for review of Magistrate's decision dismissed.

CATCHWORDS : ADMINISTRATIVE LAW [51] - Judicial review at common law and generally - Procedural fairness - In general - Duty to act fairly - Whether breached. LEGISLATION CITED : Local Court (Civil Claims) Act 1970 s 69 PARTIES : Mary Nagle (P) Trustees of the Christian Brothers (D) FILE NUMBER(S) : SC 3272/03 COUNSEL : In person (P) Ms K Yager, Solicitor (D) SOLICITORS : In person (P) Laurence & Laurence (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 4 DECEMBER 2003

3272/03 MARY NAGLE v TRUSTEES OF THE CHRISTIAN BROTHERS JUDGMENT 1 HIS HONOUR: This matter arises from the long and sorry history of proceedings brought in the Downing Centre Local Court by the present defendant, the Trustees of Christian Brothers, against Mary Nagle, the plaintiff. The proceedings were to recover a debt for the education at Waverley College of the sons of Mrs Nagle. One curious feature of the case is that for some reason the proceedings by way of appeal from or review of the Local Court decision have been brought in the Equity Division rather than the Common Law Division, which is the usual repository of such proceedings. However, I have thought it appropriate to determine the proceedings rather than to create a further delay by transferring the matter to the Common Law Division. 2 The unhappy history in the Local Court included a number of occasions when no appearance was made by Mrs Nagle and she suffered consequences accordingly. The first was on 16 September 2002 when she did not appear at a callover; her grounds of defence which had been filed were struck out and default judgment was applied for by the plaintiff. A notice of motion seeking to reinstate the defence and set aside the judgment was fixed for hearing on 4 December 2002. On that day again Mrs Nagle did not appear. That motion was dismissed and default judgment was applied for. On the following day, 5 December 2002, a notice of motion was filed by Mrs Nagle seeking to reinstate her defence. That motion was heard on 23 January 2003 and was successful; the matter was listed for callover on 13 March 2003. On 29 January 2003 Mrs Nagle filed amended grounds of defence. Because on 13 March 2003 she did not appear at the callover, an order was again made that the defence be struck out. Final judgment was entered against Mrs Nagle in the plaintiff's favour and there was also a costs order against her in the sum of $450. 3 On 19 March 2003 Mrs Nagle filed yet another notice of motion seeking to reinstate her defence. This motion was heard in the Local Court before Magistrate Barkell on 15 May 2003. It is the order that was made on that day by Magistrate Barkell that is the subject of attack in these proceedings and it is on what occurred on that day in her Worship's Court that the evidence is focused. The plaintiff in her summons seeks an order that the order of 15 May 2003 "be set aside based on the grounds of procedural fairness which had not been followed, in that the appellant's defence had not been heard, and in the interest of equity, in that the appellant had a bona fide defence … ". 4 The two powers which are vested in this Court to set aside judgments or orders of a Local Court in civil proceedings are an appellate procedure under s 69 of the Local Court (Civil Claims) Act 1970 ("the LCCCA") and proceedings for prerogative relief, the modern procedure as to which is governed by s 69 of the Supreme Court Act 1970 ("the SCA"). In my view relief cannot be sought by way of appeal under s 69 of the LCCCA because sub-s (2B) excludes from the ambit of appellate review "an interlocutory judgment or order." In my view the order of 15 May 2003 refusing to reinstate the defence or set aside the judgment was an interlocutory order. If the plaintiff can obtain relief it must be obtained by way of prerogative order. 5 It seems to me the appropriate relief in the circumstances would be certiorari. Relief is sought on the ground of denial of procedural fairness, which certainly is a ground on which certiorari may be sought and granted. Certiorari can also be sought on the basis of an error of law on the face of the record. That expression includes an error appearing in reasons for the decision by reason of s 69(4) of the SCA. However, it is dubious whether there is any written record of the learned Magistrate's reasons for judgment. In any event, none is laid before me and no relief is sought on this ground rather than on the ground of denial of procedural fairness. 6 No transcript is available and what occurred before Magistrate Barkell on 15 May 2003 is deposed to by the participants, Mrs Nagle on the one hand and, on the other, Ms Yager, who appears for the defendant before me as she did before Magistrate Barkell. In a sense there is not a great deal of difference between their accounts. Probably the greatest difference is as to whether a specific amount was mentioned in relation to the costs to be paid as the price for an order to set aside the judgment, or whether Magistrate Barkell spoke of those costs only in terms of costs of stipulated days (rather than the stipulation of a sum of money). As I have already stated, an order for costs in the sum of $450 was made against Mrs Nagle in the Local Court on 13 March 2003. For reasons that will appear I do not think it necessary to determine the correctness of these different versions as to the specification of the relevant costs. 7 Mrs Nagle has appeared before me for herself in these proceedings. It is important for her to understand and, indeed, for the defendants to understand the limited function which this Court has to perform in these proceedings as they are constituted. The review is only of Magistrate Barkell's decision in May 2003. And the review is only on the basis that Magistrate Barkell in making that decision denied Mrs Nagle procedural fairness. It is not this Court's function to adjudicate upon the validity of her defence to the Local Court proceedings. Without determining that defence Magistrate Barkell decided in her favour, and this Court assumes in her favour, that her defence to the Local Court proceedings was arguably a good defence. 8 This narrows the issue further. The Magistrate decided the question of whether there was a reasonably arguable defence in Mrs Nagle's favour. The denial of natural justice to be operative must be in the area of other matters on which the Magistrate proceeded in coming to her decision. Her Worship was understandably perturbed by the fact that Mrs Nagle had failed to appear in the Local Court not on one, not on two, but on three occasions. On Ms Yager's evidence, which in this regard I accept, the learned Magistrate did ask Mrs Nagle for her explanations of those non appearances. They were, in at least summary form, given by Mrs Nagle to the Magistrate. Although they were not given in the form of sworn evidence, it appears that the Magistrate did not discard them for that reason. It appears rather that she accepted them as the reasons but, in the exercise of her discretion, determined that, despite the arguably good defence on the merits, the defence should not again be reinstated, nor should the judgment be set aside, unless, within a short time, some payment was made by Mrs Nagle to the defendant in respect of costs. 9 There is dispute as to whether the quantum mentioned was the sum $450 on the one hand or the costs of two specified days on the other. It is clear that Mrs Nagle made it plain to the Court that those costs could or would not be paid within the time contemplated by the Magistrate. Again there is some difference between the witnesses as to what precisely was said in this regard, but in the end it was clear that Mrs Nagle indicated that she rejected the proposition that costs should or would be paid. It was on that basis, as to which essentially there is no dispute, that Magistrate Barkell made the determination that the motion should be dismissed. 10 Whilst I am not without some sympathy for a litigant who, it would seem, is impecunious and who has not had determined the merits of a defence found by the Magistrate to have been arguable I am unable to find on this material that the plaintiff was on 15 May 2003 denied natural justice. 11 I should add that even if I am wrong in my conclusion in [4] that the Magistrate's order was interlocutory rather than final, no different result would flow. Even if Mrs Nagle's proceedings be regarded as an appeal rather than an application for certiorari there is no ground of appeal advanced other than denial of natural justice and my view expressed in [10] is that there was no denial. 12 Whilst Mrs Nagle initially came to Court with a motion for an interlocutory injunction to restrain a process of execution which had been commenced in the Local Court and the defendant had already filed a motion for the summary dismissal of the plaintiff's summons, I did not proceed on either of those applications by way of side wind. The facts were in short compass; I determined that a final hearing of proceedings by summons was appropriate. Although I afforded opportunity for cross examination on the evidence before me as appropriate upon a final hearing neither side chose to cross examine. The matter having proceeded as a final hearing the appropriate orders as a result of the findings I have made are as follows: (1) Judgment for the defendant on the plaintiff's claim. (2) Order that the plaintiff pay the defendant's costs of these proceedings.