Casali v Broderix [2005] NSWSC 1325

New South Wales Supreme Court

CITATION : Casali v Broderix [2005] NSWSC 1325

HEARING DATE(S) : 7 December 2005

JUDGMENT DATE : 16 December 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Harrison

DECISION : (1) The appeal is dismissed; (2) The decision of her Honour Magistrate Keogh dated 17 June 2005 is affirmed; (3) The further amended summons filed 20 September 2005 is dismissed; (4) The plaintiff is to pay the defendant's costs on an indemnity basis.

CATCHWORDS : Appeal decision of Local Court Magistrate - Small Claims Division - denial of natural justice

LEGISLATION CITED : Local Courts Act 1982 (NSW) - ss 73(2) & 75

Kioa v West (1985) 159 CLR 550 CASES CITED : Swain v Waverley Municipal Council [2005] HCA 4

Enzo Casali (Plaintiff) PARTIES : Kai Broderix (Defendant)

FILE NUMBER(S) : SC 13097/2005

Mr Sean Brennan (Plaintiff) COUNSEL : Mr J Horowitz (Defendant)

Ms Natalia Veksle, SOLICITORS : Colquhoun & Colquhoun (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 243/04

LOWER COURT JUDICIAL OFFICER : Her Honour Magistrate Keogh

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 16 DECEMBER 2005

13097/2005 - ENZO CASALI v KAI BRODERIX

JUDGMENT (Appeal decision of Local Court Magistrate - Small Claims Division- denial of natural justice)

1 HER HONOUR: By further amended summons filed 20 September 2005 the plaintiff seeks to appeal the decision of her Honour Magistrate Keogh in respect of the evidence heard by her and the judgment delivered in Local Court proceedings No 243/04 at Ryde on 17 June 2005. The plaintiff is Enzo Casali. The defendant is Kai Broderix. The plaintiff relied on his affidavit sworn 7 October 2005. For convenience I will refer to the parties by name. 2 Casali submitted that there was a denial of natural justice. At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73(2) of the Local Courts Act 1982 (NSW) allows an appeal to this court on the grounds of lack of jurisdiction and/or denial of natural justice. Section 75 of the Act provides that the court may determine an appeal by either (a) varying the terms of the judgment or order or (b) setting the judgment or order aside (c) by setting the judgment or order aside and remitting the matter to the court for determination in accordance with the Supreme Court's directions or (d) by dismissing the appeal. 3 Recently, in Swain v Waverley Municipal Council [2005] HCA 4, the Chief Justice at [2] reiterated that in the common law system of civil justice, the issues between the parties are determined by the hearing process. The system does not regard the hearing as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. 4 Mr Casali appeared unrepresented at the hearing in the Local Court and he drafted this appeal. At the hearing before this Court, Mr Casali was represented by Counsel.