Dust v Fekonia & Anor [2005] NSWSC 793

New South Wales Supreme Court

CITATION : Dust v Fekonia & Anor [2005] NSWSC 793

HEARING DATE(S) : 4 August 2005

JUDGMENT DATE : 15 August 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS : Application for rehearing - plaintiff and her solicitor fail to attend arbitration hearing - failure to satisfy that there was good reason for non-attendance - court need not make an order - discretionary power and legislative intention.

Arbitration (Civil Actions) Act 1983, ss18, 18A LEGISLATION CITED : Local Courts (Civil Claims) Act 1970, s69

CASES CITED : Carne v United Medical Protection Ltd [2005] NSWSC 556

Sharon Lee Dust (Plaintiff) PARTIES : Robin Fekonia & Margaret Campbell (Defendants)

FILE NUMBER(S) : SC 11116/05

Mr A Porthouse (Plaintiff) COUNSEL : Mr S A Benson (Defendants)

Herbert Weller (Plaintiff) SOLICITORS : Ramensky Lawyers (Defendants)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 1168/04

LOWER COURT JUDICIAL OFFICER : Burdett LCM

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

Associate Justice Malpass

15 August 2005

11116 of 2005 Sharon Lee Dust v Robin Fekonia & Anor

JUDGMENT 1 His Honour: The defendants were the owners of a property known as 41 Regent St, Riverstone (the property). The property was leased to the plaintiff. The defendants contended that she had caused damage to the property during the tenancy. 2 On 9 June 2004, the defendants brought proceedings in the Local Court claiming damages. The proceedings were referred to arbitration. An arbitration hearing was fixed for 25 November 2004. 3 At the time, the plaintiff had instructed a solicitor (Mr Weller) to act for her and defend the claim. Neither he nor the plaintiff attended the arbitration hearing. An ex parte hearing took place before the Arbitrator (Mr Eagle). He awarded the defendants the sum of $25,119.95 plus costs. 4 On 13 December 2004, Mr Weller applied for an order under s18(2) of the Arbitration (Civil Actions) Act 1983 (the Act) for the rehearing of the proceedings. 5 On 25 February 2005, the application for rehearing came before Burdett LCM. The Magistrate did not make an order for rehearing. 6 The plaintiff has brought proceedings in this court. She now proceeds on a further amended summons filed on 18 July 2005. Her process purports to bring an appeal against the decision of the Magistrate. It alleges error of law. 7 An appeal lies from a decision of the Local Court where there has been error in point of law. The plaintiff bears the onus of satisfying the court that there has been such error and that it justifies the disturbing of the decision. 8 In this case, the plaintiff accepts that the appeal is being brought against an interlocutory order and that the appeal only lies if leave is granted pursuant to s69(2B) of the Local Courts (Civil Claims) Act 1970. 9 The appeal was heard on 4 August 2005. All parties were represented by counsel. 10 Before proceeding further, I should mention one matter that would seem to confront the plaintiff with a near-insurmountable hurdle. Whilst certain of the transcript is available, that part which is relevant to the disclosure of the Magistrate's reasoning process, is not available. It appears that the cassette used to record that part of the proceedings may have been lost. 11 The power to order a rehearing is conferred by s18A of the Act. The section contains, inter alia, the following:- 18A Order for rehearing (1) The court by which an action was referred to an arbitrator, or the registrar of that court, must order a rehearing of the action if an application for a rehearing of the action is made before the award becomes enforceable as a judgment or order of the court. (2) An order for rehearing cannot be made if the amount claimed in the action, or the value of the property to which the action relates, does not exceed the amount prescribed by the regulations for the purposes of this section. (3) An order for rehearing need not be made if it appears to the court or registrar that the applicant failed to attend a hearing before an arbitrator on the action and the applicant fails to satisfy the court or registrar that there was good reason for the failure to attend the hearing. 12 In the present case, it is not said that subs (2) is applicable. It seems to be common ground that the application was made as required by subs (1). It is said by the plaintiff that the Magistrate erred in the performance of the exercise required by subs (3). 13 The intention of the section seems to be that, save for what may be seen as a qualification imposed by subs (3), where application is made that satisfies subs (1), the court must order a rehearing. 14 The effect of subs (3) is that, where it appears that the applicant failed to attend the hearing before the Arbitrator and he or she fails to satisfy that there was good reason for the failure to attend the hearing, an order for rehearing need not be made. 15 The provision imposes what may be regarded as two threshold requirements. If and when these are met, there is a discretionary power to not make an order. 16 In the present case, there is no issue that the plaintiff failed to attend the hearing before the arbitrator. The disputed questions are whether or not there was good reason for the failure to attend the hearing and whether or not there was error in not making an order for a rehearing. 17 The decision of the Magistrate is consistent with the plaintiff failing to satisfy him that there was good reason for the failure to attend the hearing and it does not seem to be suggested that he was not so satisfied. If he was so satisfied, the Magistrate was empowered to not order a rehearing. 18 The court has before it the material that was placed before the Magistrate. The plaintiff was represented by her solicitor, Mr Weller. The defendants were represented by their solicitor (Mr Vahl). 19 I shall now refer to that part of the material which was regarded by the parties as being significant. It threw up conflicting evidence which was left untested because there was no cross-examination. This made the fact finding process more difficult. 20 There was an affidavit sworn by Mr Weller (it was sworn on the date of the hearing before the Magistrate, 25 February 2005). There was an affidavit sworn by Mr Vahl (it was sworn on 3 February 2005). It contained a number of annexures (including a copy facsimile dated 29 September 2004 from Mr Vahl to Mr Weller, a letter from Mr Woods to Mr Vahl dated 25 November 2004 (Mr Woods was the counsel who appeared for the defendants at the arbitration) and a copy of the notes made by the Arbitrator). 21 The affidavit sworn by Mr Weller contained the following:- 2. I believed that these proceedings were listed for Call Over on the 25th November 2004. 3. On that morning I telephoned the Solicitor for the Plaintiff for the purpose of requesting that he mention my appearance at the Call Over and obtain a mutually convenient hearing date. I was informed that he had left for Court. 4. Not long after the telephone call in paragraph 3, I spoke to Mr Harry Woods Barrister, with whom I am acquainted. He informed me that the matter was listed for an Arbitration hearing. I said: "I did not know that, nor did the Defendant. Would you have any problem with me filing a Notice of Rehearing of the Arbitrated Action". He said: "No, you can do that".