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-- During this period, Mr Tucker may have returned to the witness box. 15 Page 5-6 records also the following:- Her Honour: Just stop there, please. I do not want to hear any statement from you. You indicated to the Court just a moment ago that you are not proceeding, is that correct? Defendant: Well, I don't know how you will interpret-- Her Honour: I just want to clarify what you've said to the Court. You made the statement-- Defendant: Don't verbal me. Her Honour: You are not-- Defendant: Don't verbal me. Her Honour: Mr Makucha-- Defendant: Please, don't verbal me. I am not a lawyer. Her Honour: Just answer my question, please, are you indicating-- Defendant: Are you refusing an adjournment so that the transcript-- Her Honour: Yes, I have already indicated there will be no adjournment, the matter is proceeding. 16 Page 6 of the transcript records the following:- Defendant: Are you refusing an adjournment so that the transcript-- Her Honour: Yes, I have already indicated there will be no adjournment, the matter is proceeding. … … … Her Honour: I have indicated to you that the matter is proceeding. There will be no adjournment today, I've indicated that to you. Defendant: You will not permit time sufficient to have the transcripts available, is that right? Her Honour: I am saying to you that there will be no adjournment of these proceedings today, they will continue. Now, you made the statement to the Court a short time ago that you are not continuing. Are you indicating that you are withdrawing? Defendant: No, I don't know what you're trying to trick me into putting on the record because I don't know what the rules state and given that what I observed I don't know what's going on here. 17 Page 7 of the transcript records the following:- Defendant: No, but, hold on, am I being entrapped so as that you can ask a leading question, the leading question is "Are you withdrawing the case?". I'm not withdrawing the case, I need the transcripts. You're refusing time for the transcripts to be available. You have called for the sheriff because I saw you playing the flute with the Bic pen in your mouth. Now, I can hardly see that that's a reason to call a sheriff. I'm a serious man. … … … Defendant: Well, I will not proceed, I cannot proceed. I cannot proceed. What is the reason you cite me for contempt? 18 The plaintiff persisted in behaving unresponsively to questions put to him by the Magistrate (including questions as to whether or not he wanted to cross-examine Mr Tucker). She called for the Sheriff and informed the plaintiff that she was going to cite him for contempt. 19 He was asked many times to take a seat (see transcript pp8-9). It appears that he refused to do so and kept addressing the Magistrate. Discussion between the Magistrate and counsel for the defendant was attempted concerning whether the plaintiff had indicated that he did not intend to proceed with the case when it was offered to him. The plaintiff said "That is not correct" on a number of occasions. He was then removed from the court to the cells by the Sheriff. 20 The transcript of the proceedings following the removal of the plaintiff indicates that the Magistrate had come to the view that the plaintiff was no longer defending the matter and did not intend to further participate in the proceedings. 21 The hearing then proceeded in the absence of the plaintiff. The Magistrate satisfied herself that the debt had been proved and entered judgment in the sum of $18,319.25. 22 The plaintiff now appeals to this court from what was done by the Magistrate. He proceeds on an amended summons filed in court on 8 March 2005. The hearing of the appeal took place on that day. The plaintiff was represented by counsel. 23 The amended summons contains one ground of appeal. It is as follows:- The learned Magistrate erred in law by: a) Denying the Plaintiff procedural fairness by proceeding to hear and determine the case against the plaintiff in the absence of the plaintiff who had been arrested and removed from the court for contempt by order of the magistrate. 24 The matter of denial of procedural fairness is not the subject of a codified body of principles or the like. It seems to be common ground that the question of whether there has been such a denial will turn on the particular circumstances of this case. 25 Counsel for the plaintiff has prepared a written outline of submissions. It contains passages from the transcript. Certain of it has been reproduced in this judgment. 26 The thrust of the case presented on behalf of the plaintiff is that he was not given the opportunity of adequately presenting his case before the Magistrate. This submission was otherwise embellished. It was said, inter alia, that he was not told that the hearing would proceed in his absence, he was not given a clear choice and that the Magistrate failed to adequately warn him of what may happen. 27 It appears that the Magistrate had regard to material contained in the letter. She came to the view that there was no good reason to either adjourn the hearing or to disqualify herself. I see no error in either of those rulings. I should add that I have read the transcript and it seems to me to do little to give support to an allegation of bias. 28 Whilst it was made abundantly clear to him that the hearing would be proceeding before her on that day, he was not told that the hearing would continue in his absence. However, it seems to me that what his counsel says should have been made clear by the Magistrate to the plaintiff would not have made any difference. 29 I am not satisfied that he intended to continue participating in a hearing of the defendant's claim by the Magistrate. 30 He did not take steps to rely on the amended defence. He did not give a responsive answer to questions as to whether he wanted to cross-examine Mr Tucker. He would not answer questions directed to whether or not he was withdrawing either his defence or from the proceedings. At times, he clearly said that he was not proceeding and that he would make an application to the Supreme Court. 31 The transcript makes it clear that the plaintiff did not accept the rulings of the Magistrate and that he did not intend abiding by them. He adopted a truculent role of persisting with his applications and being unresponsive to what was said to him by the Magistrate. Despite what was otherwise said by him during the hearing on the said day, he intransigently insisted that the matter not proceed without the transcript and that his application for her discharge be first dealt with. It seems to me that he had no intention of co-operating so as to enable the defendant's case to be heard by the Magistrate. 32 I consider that it was reasonably open to the Magistrate to come to the view that inter alia the plaintiff did not intend to further participate in the hearing of the defendant's case before her. 33 The plaintiff bears the onus of satisfying the Court that the decision of the Local Court should be disturbed. 34 In the light of what is before this Court, I am not satisfied that the onus has been discharged. 35 I am not satisfied that the plaintiff was denied procedural fairness. 36 The summons is dismissed. The plaintiff is to pay the costs of the summons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.