Stojanovski v Parevski [2004] NSWSC 1144

New South Wales Supreme Court

CITATION : Stojanovski v Parevski [2004] NSWSC 1144 HEARING DATE(S) : 2 December 2004 JUDGMENT DATE : 10 December 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS : Appeal from Small Claims Division - magistrate rejects tender of statement (not filed and exchanged in accordance with directions) and refuses adjournment application - not a denial of natural justice - the scope of such ground of appeal and the object of the Division. LEGISLATION CITED : Local Court (Civil Claims) Rules 1988 Tony Stojanovski (Plaintiff) PARTIES : Pale Parevski (First Defendant) Luba Parevski (Second Defendant) FILE NUMBER(S) : SC 11486 of 2004 COUNSEL : Mr J Burrell (Solicitor) (Plaintiff) Mr J Collins (Defendant) SOLICITORS : Burrell Solicitors (Plaintiff) Universal Consolidated Group (Defendants)

LOWER COURT Local Court JURISDICTION : LOWER COURT 1295 of 2003 FILE NUMBER(S) : LOWER COURT Kennedy LCM JUDICIAL OFFICER :

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

10 December 2004

11486 of 2004 Tony Stojanovski v Pale Parevski & Anor

JUDGMENT 1 Master: The plaintiff was the plaintiff in the Local Court proceedings. The proceedings were dealt with in the Small Claims Division of the court. The court followed the usual procedure applicable to claims in that division. 2 The plaintiff carried on business as a tiler. He had laid some floor tiles for the defendants at their premises. He was seeking to recover the costs of the work done by him. The claim was defended on the basis of defective work and the defendants brought a cross-claim for the costs of rectifying the defective work. 3 A pre-trial review was had on 21 January 2004. An order for an inspection was made (Part 20 rule 8 of the Local Court Rules). The purpose of the order was to enable the plaintiff to have an expert attend the premises of the defendants and inspect the work. The inspection did not take place. 4 On 10 March 2004, the matter was again before the court. The plaintiff was given the further opportunity to have an inspection. He declined that opportunity. 5 The proceedings were adjourned for hearing on 8 April 2004. Directions were given for the filing and exchange of statements by 24 March 2004. 6 On 23 March 2004, the plaintiff instructed a solicitor (Mr Burrell) to act on his behalf. At that time, the plaintiff had not filed or served any statements. The defendant had complied with the directions (inter alia, a statement from an independent expert had been filed and served by about 10 February 2004). By early March 2004, the plaintiff had filed a notice of grounds of defence to the cross-claim. The matters relied on by way of defence were set forth in what was described as a "response". In substance, it was the plaintiff's answer as a fellow expert to the report of the defendant's expert. 7 On or about 24 March 2004, Mr Burrell served statements on behalf of the plaintiff. On 25 March 2004, Mr Burrell filed a notice of motion seeking a further order for access for an expert to inspect the subject tiling work. The notice of motion was listed before the registrar on 31 March 2004. There was no appearance on behalf of the plaintiff and the registrar refused the application. Mr Burrell then sought a review of the decision of the registrar. The review took place on 6 April 2004. What was done by the registrar was upheld by the magistrate. 8 The matter came before the court on 8 April 2004. The plaintiff was represented by a solicitor (Mr Burrell). The defendants were unrepresented. 9 By that time, Mr Burrell had prepared a further statement from the plaintiff. It had not been served on the defendants. It was a document that may be described as a clarification and embellishment of the "response". Mr Burrell sought to tender the statement during the hearing. The tender was rejected by the magistrate. 10 Mr Burrell then sought an adjournment so that an inspection by an independent expert could be had. The application was refused. The hearing proceeded. The magistrate had before him, inter alia, both the response and the statements served on 24 March 2004. The Local Court found in favour of the defendants on the plaintiff's claim and they recovered a judgment in the sum of $7,391.40 on their cross-claim. 11 For completeness, I observe that in the circumstances of the case it was reasonably open to the court to both refuse the tender and the application. 12 On 21 May 2004, the plaintiff filed a summons in this court. It is filed out of time. An extension of time is required. 13 The summons propounds an appeal which is presented on the ground of denial of natural justice. The denial of natural justice is said to arise from both the refusal to admit the tender and to grant the adjournment. 14 The parliament has limited the grounds of appeal from matters dealt with in the Small Claims Division. The intention was to achieve finality in small claims and restrict that which could be the subject of an appeal. It was not intended to extend the scope of denial of natural justice so as to embrace matters that could be regarded as errors of fact and/or law. 15 In determining whether or not there has been a denial of procedural fairness, the task for the court is to look at the particular circumstances of the case before it. Procedural fairness is a flexible concept. Each case can be expected to turn on its own circumstances. The onus rests with the plaintiff to demonstrate entitlement to relief. In this case, it is my view that such onus has not been discharged. 16 The plaintiff had a reasonable opportunity to prepare and present his case. In particular, he had a reasonable opportunity to either make an inspection himself or to retain an expert and have him or her make an inspection. The plaintiff did not take advantage of the opportunity had by him. Why that was so has been largely left unexplained. What took place subsequent to 23 March 2004 can be seen as being a consequence of advice given by Mr Burrell. 17 The substance of the appeal is an unhappiness with rulings made by the Local Court (the ruling to refuse both the tender and the adjournment application) that cannot be otherwise challenged by reason of the limited appellate entitlement (it cannot be challenged by reason of alleged error). In my view, the refusal of the application did not bring about a denial of natural justice. What it effectively saw was a refusal of applications for further indulgence. 18 The plaintiff has stressed the importance of the material that he was not allowed to rely on. The question of whether or not it was of importance need not be addressed. It is not a determinative matter in the circumstances of this case. 19 If the plaintiff was placed at some disadvantage as a result of the rulings made by the magistrate, it was not because he had not been afforded natural justice. He had been the maker of his own problems. He had not complied with the directions of the court. He placed himself in a position where he needed further indulgence from the court. In making the rulings the magistrate had to have regard to the interests of justice and to consider the position of the defendants as well as that of the plaintiff. 20 This is another of the many cases that are brought before this court and dressed up in a presentation of denial of natural justice in an endeavour to circumvent the limited avenue of appeal that is available when matters are heard in the Small Claims Division. Error in point of law does not give rise to an appeal. 21 In cases such as this, plaintiffs often quote authority of appellate courts dealing with questions such as the refusal of applications for an adjournment or to amend a pleading. Generally speaking, such authority is not of assistance where the court is dealing with a question of denial of natural justice. The considerations involved can be expected to be different. 22 It needs to be borne in mind that the object of the Division is to provide litigants with a fast, cheap and informal resolution of their small disputes. So that can be done, there needs to be strict compliance with orders of the court. Adjournments should be rare. The costs to the parties and the public are to be kept to a minimum. Because of the restriction on the awarding of costs in the Division, the prejudice or inconvenience that may result from, inter alia, granting an adjournment may not be met by an order for costs. 23 Because the appeal is doomed on the merits, it is unnecessary to further consider the application for extension. Whilst the unfortunate happenings that befell Mr Burrell go towards explaining how the appeal was brought out of time, it would be futile to grant an extension. 24 The summons is dismissed. The plaintiff is to pay the costs of the proceedings. **********