New South Wales Supreme Court CITATION : Oliveri Legal Pty Limited v Lohning International Pty Limited [2004] NSWSC 987 HEARING DATE(S) : 22 October 2004 JUDGMENT DATE : 29 October 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; the exhibit may be returned. CATCHWORDS : Appeal from Small Claims Division of Local Court - denial of natural justice - rejection of tender of statement not filed in accordance with practice note - denial of hearing - misconceived appeal. LEGISLATION CITED : Local Courts (Civil Claims) Act 1988 CASES CITED : State of Queensland & Anor v JL Holdings Pty Limited (1997) 141 ALR 353 PARTIES : Oliveri Legal Pty Limited (Plaintiff) Lohning International Pty Limited (Defendant) FILE NUMBER(S) : SC 11112 of 2004 COUNSEL : Mr Sahadi (Plaintiff) Submitting appearance (Defendant) SOLICITORS : Oliveri Legal (Plaintiff) Hancock Alldis (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 9695 of 2003 FILE NUMBER(S) : LOWER COURT Maloney LCM, Syme LCM JUDICIAL OFFICER : - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass 29 November 2004 11112 of 2004 Oliveri Legal Pty Limited v Lohning International Pty Limited JUDGMENT 1 Master: The plaintiff was the defendant in proceedings in the Local Court. The proceedings were listed in the Small Claims Division of that court. Mr Oliveri is a solicitor. He is a director of the plaintiff. He was acting for it in the Local Court proceedings. He filed a defence on behalf of his client. 2 The proceedings were case managed in accordance with the procedures that have application to proceedings listed in the Division (Practice Note 3/2001). On 14 November 2003, there was a Pre-trial review. Directions were given for the filing and exchange of statements (this was to be done by 19 January 2004). The proceedings were set down for a hearing to take place on 16 February 2004. In accordance with the usual practice, the case was to be heard and determined on the statements and other relevant documentation. The rules of evidence did not apply. 3 The plaintiff failed to comply with the directions. It appears that a statement was prepared on or about 19 January 2004. It was served by DX on the same day. An unsuccessful attempt to file it was made on 20 January 2004. The attempt was unsuccessful because it is said that it was contrary to directions that had been given by the court to counter staff. 4 At the hearing, what might be regarded as a tender of the plaintiff's statement was rejected by Maloney LCM. It appears that a firm policy has been adopted by the Local Court to enforce strict compliance with the practice note. The hearing continued. The defendant (which was the plaintiff in those proceedings) relied on its statements. The only evidence upon which the plaintiff sought to rely was the rejected statement. Mr Oliveri made submissions on its behalf on both the question of the admissibility of the statement and the merits of the claim (inter alia he submitted that this material did not substantiate the claim made against his client). 5 After hearing the submissions, the magistrate found in favour of the defendant and entered judgment in the sum of $6,609.93 plus interest and costs. 6 Thereafter, the plaintiff filed a notice of motion seeking an order that the judgment be set aside. It was heard by Syme LCM on 8 April 2004. After hearing from the parties, the court dismissed the application. 7 The power to set aside judgment may be found in r 3 of Pt 26 of the Local Courts (Civil Claims) Act 1988. In the present case, it would seem that relief could only be granted where the judgment was made, irregularly, illegally or against good faith. It was not a case where judgment had been entered by default. 8 By summons filed on 21 April 2004, the plaintiff brings an appeal to this court from the decision of the Local Court. The summons is supported by an affidavit sworn by Mr Oliveri. 9 The appeal was heard on 22 October 2004. The plaintiff was represented by counsel. The defendant has filed a submitted appearance. 10 Because this is an appeal from the Small Claims Division, an appeal lies only on the ground of lack of jurisdiction or denial of natural justice. In this case, denial of natural justice is the only ground that is said to be available. 11 The onus rests with the plaintiff. A denial of natural justice or procedural fairness is not an area in which a code of principles may be found. Natural justice is a flexible concept involving fairness. Each case may turn on its own particular facts. 12 The appeal brought against the decision of Maloney LCM is presently incompetent. It has been brought out of time. No application is made for an extension of time. 13 The summons is deficient. It does not comply with the rules. There is no statement of grounds of appeal. The substance of the complaint has not been identified with any precision. 14 The summons is supported by two affidavits sworn by Mr Oliveri. The affidavits either exhibit or annex what is said to be the relevant material (including the transcript of the proceedings before both magistrates). 15 During the hearing of the appeal, the court was taken to various passages in the transcript. Following the reserving of judgment, I took the opportunity of reading the entirety of the transcript. 16 I shall first turn to what happened on 16 February 2004. The oral submissions made on behalf of the plaintiff gave me the impression that the appeal was maintained only in respect of what happened on this day. 17 The court was taken to inter alia what was said in State of Queensland & Anor v JL Holdings Pty Limited (1997) 141 ALR 353. This was relied on in support of what was said in relation to the rejection of the admissibility of statement. It was also said in effect, inter alia, that the plaintiff was denied a hearing and was shut out altogether. 18 In my view, what was said in JL Holdings has no relevance to the present case. The plaintiff does not have an appeal on error in point of law. It must demonstrate a denial of natural justice. 19 It seems to me that it is erroneous to contend that the plaintiff was denied a hearing. A reading of the transcript does not support that contention. Despite the initial approach taken by the learned magistrate (to strike out the defence and enter default judgment), he did not ultimately pursue that course and, save for the rejection of the tender, otherwise allowed the plaintiff to present its case. 20 The transcript reveals a situation where there was exchange between the parties and the court on issues raised by the defence. On behalf of the plaintiff argument was put on at least two questions (who was the party entitled to sue and a breach of contract issue). At the conclusion of submissions, the learned magistrate delivered reasons (pp 7-8 of transcript). 21 The rejection of the tender may seem harsh in the circumstances of this case. But, Mr Oliveri did have more than ample opportunity to prepare a statement for his client. The task of preparation seems to have been left to a very late stage. The explanation that is offered for failure to comply with the directions (inter alia computer failure and an unexpected urgent attendance in China) concerns what happened during January 2004 (the transcript reveals that he was unable to explain why the work had not been done during November and December 2003). 22 Whilst the sufficiency of the explanation may be an irrelevance for present purposes, in my view, it falls well short of being sufficient. 23 The aim of the practice procedures adopted by the Division are to ensure timely and cost-effective resolution of small claims. Strict compliance with directions is regarded as a matter of importance and enables the parties to know where they stand. 24 The plaintiff failed to comply with the direction of the court. It placed itself in the position where it was at risk of being not allowed to rely on the statement that was not filed within time. The tender of the statement was rejected. The court exercised its power to admit or reject tendered evidence. It makes little difference whether or not another judicial officer may have exercised the power in a different manner. Any error in such exercise does not assist the plaintiff in the present case. 25 Although the complaint now sought in relation to that decision is dressed up as a denial of natural justice, it is in fact no more than a challenge to a ruling on the admissibility of evidence which was not made in the plaintiff's favour. 26 In my view, it is erroneous to contend that the plaintiff was denied natural justice (inter alia, it had a reasonable opportunity to present evidence and to put submissions). 27 Putting aside the question of the incompetence of the appeal against the decision of Maloney LCM, it seems to me that the appeal is misconceived. There being no merit in the appeal, it would be futile to grant any extension of time. 28 I now turn to what happened on 8 April 2004. As earlier said, I gained the impression that the appeal against the decision made on that day is no longer maintained. However, for the purposes of completeness, I shall make some brief observations concerning it. 29 Leaving aside the question of the basis on which the application was rejected, it seems to me that the court lacked jurisdiction to make the order sought by the plaintiff (this may be the reason why this aspect of the appeal was not pressed during oral argument). Whether or not that be the case, it seems to me that the appeal is otherwise misconceived. Again, it is not a case of denial of natural justice. The parties were given a reasonable opportunity to present their respective cases. It is merely another instance of the plaintiff being unhappy with a decision of the Local Court. 30 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibit may be returned. ********** Last Modified: 11/01/2004 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.