Makucha v Brian Tucker & Associates [2005] NSWSC 164

New South Wales Supreme Court

CITATION : Makucha v Brian Tucker & Associates [2005] NSWSC 164

HEARING DATE(S) : 8 March 2005

JUDGMENT DATE : 22 March 2005

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 : Application to Magistrate for disqualification - alleged bias rejected - refusal to accept rulings and to co-operate so as to enable hearing of opponents' case to proceed - plaintiff cited for contempt and removed to cells - case proceeds in his absence - alleged denial of procedural fairness.

Paul Makucha (Plaintiff) PARTIES : Brian Tucker & Associates Pty Limited (Defendant)

FILE NUMBER(S) : SC 12743/04

Mr C Jeffreys (Solicitor) (Plaintiff) COUNSEL : Mr P Griffin (Defendant)

Jeffreys & Associates (Plaintiff) SOLICITORS : Newnhams (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 1188/02

LOWER COURT JUDICIAL OFFICER : O'Shane LCM

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

Master Malpass

22 March 2005

12743 of 2004 Paul Makucha v Brian Tucker & Associates Pty Limited

JUDGMENT 1 Master: The plaintiff was a defendant in proceedings in the Local Court. He was being sued by the defendant in those proceedings. The defendant is a surveyor and was seeking to recover moneys in respect of work done by him for the plaintiff. 2 The proceedings came before O'Shane LCM. The hearing took place during two days. 3 The first of the two days was 19 May 2004. Both parties were represented by counsel. What happened on this day is recorded in the transcript (annexure C to the affidavit sworn by the plaintiff and filed on 29 October 2004). I shall briefly summarise the principal matters that took place. Argument took place concerning the defendant's defence. It resulted in the striking out of four paragraphs of the defence. He was given leave to file an amended defence. Evidence was taken from the defendant. At the end of the first hearing day, he had been partly cross-examined. 4 The second of the two hearing days was 30 July 2004 (there was an interval of about 10 weeks. 5 During the interval, certain matters took place. The plaintiff ceased to be legally represented. He decided to appear thereafter in person. About three weeks before the second hearing date, he applied for the transcript of the first hearing day. On 29 July 2004, he wrote to the Chief Magistrate (see Annexure D to the affidavit of Brian Tucker sworn 10 November 2004). The letter sought, inter alia, a vacation of the hearing date for the second day of hearing. In effect it gave notice of an application to have the Magistrate disqualified on the basis of "Bias". 6 The adjournment was sought because of the unavailability of the transcript. The transcript was said to be important because it was claimed that it evidenced the "serious bias" which prevailed at the last hearing date. 7 When the hearing resumed on the second day, the plaintiff appeared in person. 8 An amended defence had been prepared by or on behalf of the plaintiff. The defendant had consented to the filing of the amended defence. Despite this, no application was made on 30 July 2004 for leave to file the amended defence. 9 What happened on 30 July 2004, is recorded in the transcript (annexures D and E to the affidavit sworn by the plaintiff and filed on 29 October 2004). 10 At the commencement of the hearing, the Magistrate raised the matter of the amended defence. Rather than respond to her questioning, the plaintiff raised the matter of the letter. After exchange between the Magistrate and the plaintiff concerning his letter, the Magistrate observed that there was no basis for an adjournment and no basis for her to disqualify herself. She then proceeded to inform the plaintiff that the matter would proceed that day. 11 The Magistrate then stood the matter down for 15 minutes, so as to enable the plaintiff to consider his position. 12 When the hearing resumed after the short adjournment, the Magistrate confirmed that she was proceeding with the hearing of the case. 13 I shall now set out certain passages from the transcript of 30 July 2004. What is set out is not intended to be exhaustive. 14 Page 5 of the transcript records the following;- Defendant: Which proves the wrongdoing by the Tucker parties, okay. Now, I will not be proceeding without the transcript and the hearing of bias against yourself will take first precedent. … … … Defendant: Excuse me, I am not proceeding and I will make an application to the Supreme Court. Her Honour: You're withdrawing your defence, are you? Defendant: No, you're not permitting me the-- … … … Defendant: You have changed and struck out my points of defence. You have created bias. I have no transcript. It is improper for you to force this matter to go on because I read a letter dated 24 May, 2002--