Doyle v Turner [2004] NSWSC 756

New South Wales Supreme Court

CITATION : Doyle v Turner [2004] NSWSC 756 HEARING DATE(S) : 17 August 2004 JUDGMENT DATE : 31 August 2004 JURISDICTION: Common Law 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; any application for indemnity costs referred to a registrar for determination.

CATCHWORDS : Denial of natural justice - role of Small Claims Division. PARTIES : Stephen John Doyle (Plaintiff) Douglas Turner (Defendant) FILE NUMBER(S) : SC 13001/03 COUNSEL : In person (Plaintiff) Mr S Cook (Defendant) Stephen Doyle & Associates (Plaintiff) SOLICITORS : Mr D Turner (Defendant)

LOWER COURT Local Court JURISDICTION : LOWER COURT 1265/03 FILE NUMBER(S) : LOWER COURT Assessor J Connelly JUDICIAL OFFICER :

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

Master Malpass

Tuesday 31 August 2004

13001 of 2003 Stephen John Doyle v Douglas Turner

JUDGMENT 1 Master: The plaintiff is a solicitor. In January 2002, the defendant was a solicitor employed by him. 2 On 31 January 2002, the defendant gave a month's notice of termination of employment. On the following day, a meeting took place between the parties. The meeting saw the defendant ceasing work for the plaintiff. 3 The defendant brought proceedings in the Local Court. The claim for inter alia four weeks salary fell within the jurisdiction of the Small Claims Division. It came on for hearing before an assessor in that division. The hearing took place on 30 September 2003. On that day, the assessor determined the matter in the defendant's favour. He recovered a judgment in respect of his claim, together with interest and costs. 4 The usual procedure in the Small Claims Division was followed in this case. The parties relied on written statements. The statements and other documentation were put before the assessor. The parties were given an opportunity to put submissions. The hearing took about an hour. 5 The plaintiff appeared in person. The defendant was represented by counsel. 6 On 27 October 2003, the plaintiff filed a summons in this court. It propounds an appeal against the decision of the assessor. 7 The appeal was heard on 17 August 2004. The plaintiff was not present in court when the summons was called on for hearing. At about 10.10am, upon application by the defendant to do so, I proceeded to hear the appeal ex parte. After the conclusion of the hearing and whilst I was in the course of delivering an extemporaneous judgment, the plaintiff appeared. Although it was opposed by the defendant, I allowed the plaintiff to argue his case. He relied on written submissions which were supplemented by extensive oral argument. 8 The court had before it a document which set out the grounds of appeal, a supporting affidavit sworn by the plaintiff himself, and a bundle of documents (Exhibit A). 9 Exhibit A contained inter alia documents that were before the assessor and a transcript of the hearing (including the expression of the assessor's decision making process). 10 There is a narrow avenue of appeal from a decision of the Local Court. It is restricted to error in point of law. Where the appeal comes from the Small Claims Division of that court, it is further restricted to lack of jurisdiction or denial of natural justice. 11 In the present case, the appeal is presented on the basis of denial of natural justice only. 12 The grounds of appeal contain inter alia the following:- … Assessor Connelly a) failed in her duty "to come to a decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice"; b) failed in her duty to act in good faith and fairly listen to both sides; c) failed to determine the case according to the facts and/or evidence presented and in applying the general law applicable to the particular action.