New South Wales Supreme Court Rahman v Edward T David [2005] NSWSC 1251 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 1/12/05 JUDGMENT DATE : 1 December 2005 JUDGMENT OF : James J at 1 DECISION : Appeal dismissed CATCHWORDS : Civil Law – appeal from Local Court – decision of an assessor – whether lack of jurisdiction – whether denial of natural justice Civil Procedure Act Local Courts Act LEGISLATION CITED : Local Court (Civil Claims) Act Supreme Court Rules Uniform Civil Procedure Rules CASES CITED : Wakim v Mathiew Pty Ltd t/a Dove Migration Services [2002] NSWSC 405 PARTIES : Mohammed Tabibar Rahman v Edward T David & Co Pty Limited t/a Davis Breene Conti (Solicitors) FILE NUMBER(S) : SC 011181/05 In Person - Plaintiff COUNSEL : J Hogan-Doran - Defendants Self - Plaintiff SOLICITORS : Davis Breene Conti Solicitors - Defendants LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 4859/04 LOWER COURT JUDICIAL OFFICER : Mr G Roberts - Assessor IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Progressive List JAMES J THURSDAY 1 DECEMBER 2005 011181/05 - MoHAMMED TABIBAR RAHMAN v edwarD t david & co pty limited t/a DAVIS BREENE CONTI (SOLICITORS) JUDGMENT 1 HIS HONOUR: This is an appeal from a number of decisions made in the Local Court exercising its civil jurisdiction. The principal decision appealed from is a decision of an assessor, Mr Roberts, made in the Small Claims Division of the Local Court on 7 October 2004. 2 On 7 October 2004 the assessor entered a judgment for the plaintiffs in the Local Court, Edward T Davis & Co Pty Ltd trading as Davis Breene Conti Solicitors, against the defendant in the Local Court, Mr Rahman. The judgment entered was for an amount of $236.78 and the assessor also made an order for costs. 3 Mr Rahman has sought to appeal from the assessor's decision of 7 October 2004, from a decision made in the Local Court on 10 March 2005 refusing an application by Mr Rahman to set aside the judgment of 7 October 2004 and a decision made in the Local Court refusing an application by Mr Rahman to set aside a writ of execution issued by the plaintiff to enforce the judgment of 7 October 2004. 4 In the interests of clarity I will refer to Mr Rahman, who was the defendant in the Local Court and who was the plaintiff on this appeal simply as "Mr Rahman" and I will refer to the other party to the litigation as "the solicitors". 5 Mr Rahman was not legally represented and appeared for himself in the Local Court and he has acted and appeared for himself on this appeal. In the Local Court the solicitors were represented by Mr Breene, a partner in the firm of solicitors and a director of the company Edward T Davis & Co Pty Ltd. On the hearing of this appeal the solicitors have been represented by counsel. 6 Mr Rahman did not fully comply with the rules of the Court governing appeals of this kind, including rules requiring the filing of an affidavit to which a copy of the transcript of the proceedings in the Local Court and a copy of the judgment given in the Local Court are annexed. Mr Rahman did subpoena the Local Court to produce its file and the file produced by the Local Court does disclose the history of the proceedings. 7 I will not endeavour to summarise all of the facts giving rise to the proceedings or of all the steps which have occurred in the litigation. I will however endeavour to summarise some of the more salient points. In about April 2003 Mr Rahman made a telephone call to the solicitors. On 23 April 2003 a conference took place between Mr Rahman and Mr Breene. At this conference Mr Rahman asked Mr Breene a number of questions regarding Mr Rahman's employment or possible employment by the New South Wales Department of Education and Training. 8 On 31 May 2003 the solicitors sent a bill to Mr Rahman charging for the service performed on 23 April 2003. Mr Rahman objected to paying the bill and on 16 June 2003 the solicitors made an offer to settle their claim for costs by accepting the sum of $160. No settlement occurred. The solicitors took proceedings in the Local Court seeking to recover the amount of the bill. Witness statements by Mr Breene and Mr Rahman were prepared and filed with the Court. An application by Mr Rahman that he be permitted to cross-examine Mr Breene was disallowed by the Local Court. As I have already stated, the hearing of the Local Court claim took place in the Local Court on 7 October 2004 before Mr Assessor Roberts. In October 2004 Mr Rahman wrote to the Court applying for a transcript of the proceedings on 7 October 2004 and of the judgment given by Mr Roberts on 7 October 2004. Despite Mr Rahman's request, he was not supplied with a copy of the transcript of 7 October 2004. 9 On 10 February 2005 the solicitors applied for a writ of execution to enforce the judgment debt. On 4 March 2005 the application to set aside the judgment of 7 October 2004 to which I have already referred was made and this application was dismissed on 10 March 2005. An application by Mr Rahman to set aside the writ of execution was refused. The appeal to this Court was filed in March 2005. 10 Between the filing of the appeal and to-day the Civil Procedure Act and the Uniform Civil Procedure Rules have commenced. By the Civil Procedure Act the Local Court (Civil Claims) Act was repealed and the Local Courts Act was amended. Furthermore, part 51A of the Supreme Court rules was repealed and part 46 of the Uniform Civil Procedure Rules came into force. There would, however, not appear to be any significant differences between the old procedural law and the new procedural law. It seems to me that I should apply the old procedural law, except that, insofar as Mr Rahman seeks an extension of time in which to file his appeal, I should apply part 46 of the Uniform Civil Procedure Rules. 11 As I have already mentioned, the claim by the solicitors was a claim falling within the Small Claims Division of the Local Court (see section 12(3) of the Local Court Courts (Civil Claims) Act). As a claim falling within the Small Claims Division of the Local Court, the claim was subject to section 23B of the Local Courts (Civil Claims) Act. This section provided: "23B(1) proceedings in the Small Claims Division of a Court are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (2) The rules of evidence do not apply to an action being heard or other proceedings in the Small Claims Division of the Court. (3) An assessor or magistrate exercising the jurisdiction conferred on a Court sitting in a Small Claims Division may inform himself or herself on any matter relating to an action being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit. (4) Proceedings in the Small Claims Division of the Court other than any judgment given or order made in respect of the proceedings are not required to be recorded". 12 Under section 69 of the Local Courts (Civil Claims) Act, by subsection (1) all judgments and orders of the Court exercising jurisdiction under the Act were final and conclusive. Under subsection (2) a party dissatisfied with a judgment or order of the Court which was erroneous in point of law might appeal to the Supreme Court. However, subsection (2) was subject to subsection (2A), which provided that in the case of proceedings in the Small Claims Division an appeal under subsection (2) could only be on the ground of lack of jurisdiction or denial of natural justice. 13 Part 51A rule 3(1) of the Supreme Court rules, which was in force up until August 2005, provided that an appeal to the Supreme Court of the kind here in question had to be instituted within 28 days after the material date or within such extended time as the Supreme Court might fix. "Material date" was defined in part 51A rule 2 as meaning, when the appeal was from a decision of a Court, the date on which the decision of the court, was given. 14 The principal decision of the Local Court was given on 7 October 2004 and hence 7 October 2004 was the material date of that principal decision. An appeal was not filed until March 2005 and hence the appeal was several months out of time. In deciding whether I should extend the time in which Mr Rahman might appeal, it seems to me that I should apply not section 51A rule 3, but the provisions of the Uniform Civil Procedure Rules which replaced it, namely part 46 rule 3 of the Uniform Civil Procedure Rules. 15 It seems to me that I should be prepared to extend the time for filing the appeal. It is apparent from the Local Court file that Mr Rahman promptly gave notice that he was dissatisfied with the decision of the assessor and intended to appeal. It is a notorious fact that difficulties are experienced in timeously obtaining transcripts of proceedings in the Local Court. It was not suggested to me by counsel for the solicitors that any unfair prejudice would be suffered by the solicitors if I extended the time for appealing. I make an order extending the time for appealing up to and including 31 March 2005. 16 APPELLANT: Thank you, your Honour. 17 HIS HONOUR: Earlier in this judgment I referred to the provisions of section 69 of the Local Courts (Civil Claims) Act. The Local Courts (Civil Claims) Act was repealed by the Civil Procedure Act but the provisions of section 69 of the Local Courts (Civil Claims) Act were substantially re-enacted by the insertion of sections 72 and 73 into the Local Courts Act and consequently an appeal can only be brought on a point of law and then only on a point of law involving a lack of jurisdiction or a denial of natural justice. 18 It was submitted by Mr Rahman that the assessor had not been properly appointed and hence lacked jurisdiction to hear the claim by the solicitors against Mr Rahman. Reference was made by Mr Rahman to part 5 of the Civil Procedure Act. However, part 5 of the Civil Procedure Act refers to arbitration and has no application to assessors in the Local Court. 19 Section 10 of the Local Courts (Civil Claims) Act, which was in force as at 7 October 2004, provided that the Minister could appoint any qualified person to be an assessor and that a person was qualified to be appointed as an assessor if the person was or was eligible to be admitted as a barrister or solicitor of the Supreme Court. 20 There is in evidence a letter from the Law Society stating that Mr Roberts was admitted as a legal practitioner in this State in 1988 and, although he has not held a practising certificate issued by the Law Society of New South Wales, I hold that he was a qualified person within section 10 of the Local Courts (Civil Claims) Act and had been properly appointed as an assessor. 21 The matter which Mr Rahman particularly pressed was an assertion by him that at the conference or meeting with Mr Breene he asked a large number of questions, none of which was satisfactorily answered by Mr Breene, and that the level of the professional service purportedly rendered by Mr Breene was below the standard to be expected of a legal practitioner and indeed amounted to professional misconduct. Mr Rahman referred to sections 496 to 498 of the Legal Profession Act. A similar point was raised by Mr Rahman before the assessor. 22 Whether or not there is any substance in this complaint by Mr Rahman, it is in my opinion quite clear that, even if the complaint was made out, it would not show that the assessor had made any error of law involving a lack of jurisdiction or a denial of natural justice. 23 A further point raised by Mr Rahman was that he asserted that the assessor had mistakenly treated Mr Rahman as a person applying for work, whereas in fact Mr Rahman was already a casual employee of the Department of Education and Training. It is unclear to me whether the assessor made this mistake but, even if he did, it would not in my opinion amount to an error of law involving a lack of jurisdiction or the denial of natural justice. 24 It was submitted by Mr Rahman that, if Mr Roberts was a lawyer, he was biased in favour of the solicitors as fellow lawyers. I do not consider that there is any substance in this submission. Judges are lawyers and they frequently hear disputes between parties, one or some of whom are lawyers. 25 An argument was put by Mr Rahman in written submissions that he had been denied natural justice in that he had not been permitted to cross-examine Mr Breene on his witness statement. However, section 23B of the Local Courts (Civil Claims) Act, as I have earlier stated, provided that proceedings in the Small Claims Division of the Local Court were to be conducted with as little formality and technicality as possible and that the rules of evidence did not apply to proceedings being heard in the Small Claims Division of the court. 26 Counsel for the solicitors referred in his submissions to the terms of a practice note applying to proceedings in the Small Claims Division which was in force at the time of the hearing, practice note number 3 of 2001. Paragraph 5 of this practice note provided that the option of a "formal hearing" – "the normal adversarial hearing, evidence being taken on oath, cross-examination and addresses, will no longer be available in the Small Claims Division, such a procedure being repugnant to the Division's object of providing litigants with a fast, cheap, informal but final resolution of their disputes" (Attorney-General second reading speech 22 November 1990). 27 The paragraph goes on to provide that where the Court is of the opinion that the issues likely to arise are so complex or difficult as to law or fact that the proceedings should not be heard in the Small Claims Division, the Court may order its transfer to the general division. Such an order may be made at any time before judgment on the Court's own motion or on the application of any of the parties. 28 A practice note in these terms was considered by O'Keefe J in Wakim v Mathiew Pty Ltd t/a Dove Migration Services [2002] NSWSC 405. In paragraph 29 of his judgment O'Keefe J said, "The requirements of natural justice may in a given case not confer on a party the right to cross-examine" and in paragraph 32 of his Honour's judgment his Honour said, having referred to the practice note "there is nothing inherent in the procedure adopted by the Small Claims Division of the Local Court that runs counter to the requirements of natural justice". 29 I am not satisfied that there was any denial of natural justice on this ground. 30 Mr Rahman contended that there was a denial of natural justice arising from what he asserted was the physical condition of the assessor during the hearing. Mr Rahman asserted that at least at times during the hearing the assessor had been comatose. Although Mr Rahman has said that from the bar table, there is no actual evidence of the assessor's physical condition during the hearing. My own reading of the transcript of the proceedings on 7 October 2004 does not disclose any lack of attention by the assessor to the resolution of the dispute before him. 31 Mr Rahman submitted that a passage on page 2 of the transcript in which, after Mr Rahman had said that he would take the matter to the Law Society, the assessor said, "The Law Society won't do anything if I have already ruled" indicated bias on the part of Mr Roberts, as showing that Mr Roberts at an early stage of the hearing had prejudged what his decision would be. In my opinion that is to read too much into the remark by the assessor. The assessor was merely expressing a view that, if the assessor had already ruled on the matter, the Law Society would not take any action. 32 Reference was made by Mr Rahman to the sheet attached by the Court Reporting Services Branch to the transcript of the proceedings of 7 October 2004, in which the Court Reporting Services Branch referred to problems encountered in providing a transcript of the proceedings. On this sheet there are some typed or printed standard form parts and there is some handwriting. Mr Rahman sought to rely on a portion of the printed parts in which reference is made to tribunal members not speaking in a normal conversational tone. However, this is part of the standard form document used by the Reporting Services branch. Of more importance is the handwritten part in which someone in the Reporting Services Branch, with specific reference to these proceedings, stated that difficulties in producing the transcription of the proceedings were attributable to difficulty experienced by the reporter in reporting what Mr Rahman has said. 33 I have reached the conclusion that Mr Rahman has not made out any error of law involving lack of jurisdiction or a denial of natural justice and accordingly the appeal against the decision of the assessor of 7 October 2004 fails. 34 Having dismissed the appeal from the judgment of 7 October 2004, I would dismiss the appeal from the refusal to set aside that judgment and the appeal from the refusal to set aside the writ of execution. 35 Mr Rahman, I am afraid I have dismissed your appeal. You have only got a very limited - you and anybody else only have a very limited right to appeal to this Court from a decision of the Local Court. The whole idea of the Local Court jurisdiction is, if a claim is for a pretty small amount, then the claim is to be heard in a very informal fashion and there's to be a right of appeal only in the most limited circumstances. I dismiss the plaintiff's summons. 36 Mr Hogan-Doran, I have read your submissions. I am disinclined to make an order for indemnity costs. I make an order that the plaintiff pay the defendant's costs of the appeal. ********** 06/12/2005 - - Paragraph(s) 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.