New South Wales Supreme Court CITATION : Sasterawan v SSS Electronics Pty Ltd [2006] NSWSC 119 HEARING DATE(S) : 3 March 2006 JUDGMENT DATE : 8 March 2006 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Harrison EX TEMPORE JUDGMENT DATE : 03/13/2006 DECISION : (1) The appeal is dismissed; (2) The decision of her Honour Magistrate J Carney dated 3 June 2005 is affirmed; (3) The summons filed 28 June 2005 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS : Appeal decision of Local Court - Small Claims Division - Denial of Natural Justice - VCR - $663.85 LEGISLATION CITED : Local Courts Act 1982 (NSW) - s 73(2) Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 CASES CITED : Swain v Waverley Municipal Council [2005] HCA 4 Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 Wahyu Saterawan (Plaintiff) PARTIES : SSS Electronics Pty Ltd (Defendant) FILE NUMBER(S) : SC 12766/2005 COUNSEL : Mr J O'Connor (Defendant) Mr W Sasterawan (Plaintiff in person) SOLICITORS : Feeney Lawyers (Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 1042/2004 LOWER COURT JUDICIAL OFFICER : J Carney LCM IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE HARRISON WEDNESDAY, 8 MARCH 2006 12766/2005 - WAHYU SASTERAWAN v SSS ELECTRONICS PTY LTD JUDGMENT (Appeal decision of Local Court - Small Claims Division - Denial of Natural Justice – VCR - $663.85) 1 HER HONOUR: By summons filed 28 June 2005, the plaintiff seeks to appeal the decision of her Honour Magistrate J Carney in respect of the evidence heard by her and the judgment delivered in Local Court proceedings No 1042/2004 at Waverley Local Court on 3 June 2005. 2 The plaintiff is Wahyu Sasterawan. The defendant is SSS Electronics Pty Ltd. The plaintiff relied on his affidavits sworn 24 August 2005, 6 October 2005, 27 October 2005 and 7 November 2005. The defendant did not rely upon any affidavit evidence. 3 The plaintiff submitted that there was a denial of natural justice on the grounds that the decision was not fair and equitable. At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73(2) of the Local Courts Act 1982 (NSW) allows an appeal to this court on the grounds of lack of jurisdiction and/or denial of natural justice. Section 75 of the Act provides that the court may determine an appeal by either (a) varying the terms of the judgment or order or (b) setting the judgment or order aside (c) by setting the judgment or order aside and remitting the matter to the Local Court for determination in accordance with the court's directions or (d) by dismissing the appeal. 4 Recently, in Swain v Waverley Municipal Council [2005] HCA 4, the Chief Justice, at [2], reiterated that in the common law system of civil justice, the issues between the parties are determined by the hearing process. The system does not regard the hearing as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. 5 The plaintiff appeared unrepresented at both hearings in the Local Court and this court. Before this court, I formed the opinion that he was articulate and had a good grasp of court procedure. Grounds of appeal 6 The plaintiff seeks order that firstly, judgment be set aside and a fresh hearing be commenced; secondly, that all available evidences be called in and be justified accordingly; thirdly, that the SLV EZ2000Y Sony VCR Unit including Remote Control, carrying box and all the supplied cables were delivered at the time be presented before this court; and lastly, recover costs of $663.85 for the plaintiffs damaged VCR, plus other costs. 7 In Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 and Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J (at [23]-[24] and at [20]-[21] respectively) made essentially identical observations on natural justice. In Kojima he stated: "The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Court. This is clear from the nature of the function to be performed by that tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act. The content of the requirements of natural justice is not fixed. The content is fluctuating. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to: (i) act judicially; (ii) deal with the matter for decision without bias; (iii) give each party the opportunity of adequately presenting its case; (iv) observe the procedural and other rules provided for in the relevant statute; (v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice." 8 In oral submissions the plaintiff specifically drew the Court's attention to two purported fraudulent invoices, an inconsistency in affidavit evidence as to who actually took the photographs of the interior of the VCR and updated job log entries. Overall the plaintiff submitted that there had been a "crisis of honesty". The Local Court proceedings 9 By statement of claim filed 20 September 2004 the plaintiff sought the sum of $663.85 in respect of monies owed to him by the defendant for damages to a Sony VCR, damages incurred whilst the defendant was repairing the VCR and upon return of the VCR unit it immediately failed to work. The defendant's defence pleaded firstly, that the Sony VCR serviced by it on behalf of the plaintiff, was extensively tested with all due diligence and care prior to contacting the plaintiff on 12 March 2004 to collect the VCR; secondly, that the plaintiff collected the Sony VCR on Saturday 13 March 2004 in good working order and condition; and thirdly, that when the VCR was collected by the plaintiff the VCR did not have any of the defects and/or damage that it had when it was returned to the defendant on Monday 15 March 2004. 10 On 3 June 2005 at the hearing before the Magistrate at the Local Court, Waverley, the plaintiff relied upon a written statement from him, a statutory declaration from his wife, oral evidence. He made submissions. The defendant relied on the affidavits of Michele Wise, Khanh Quach, Rebecca Zadravec and Mario Gauci and the defendant's legal representative also made submissions. 11 At the outset the Magistrate stated: "The proceedings in the small claims jurisdiction are more informal, all right, than they are say for example in a criminal matter or in a general division civil claims matter so each will have a turn and then I'll give my decision. I've read all the material, thank you, in the meantime and your statements that have both been filed including other statutory To Whom It May Concern document attached to the plaintiff's statement. Now, I don't think there's any dispute that you were engaged to perform some work on the VCR, there's no dispute there." (t 1.35-45) 12 and "Let's just begin formally, what do you want to say in relation to your claim. You bear the onus of establishing on the balance of probabilities that you're entitled to that amount of money all right then." (t 2.36-39) 13 In her reasons, the Magistrate stated: "In relation to these proceedings there's assertion and counter assertion and I accept in relation to the plaintiff's case that there was some problem with the VCR because he's always been attentive in bringing it back and getting it serviced under warranty and otherwise but that doesn't necessarily mean that he is successful in his claim because in relation to that there is obviously damage to the unit. I accept that the unit was serviced and I can't accept in these proceedings that such extensive damage would have occurred during a servicing and then simply sent back to the defendant (as said) in circumstances really where he had no interest to gain in doing that as it relates to customer service and the particular warranty provisions that prevailed at the time. IN THESE CIRCUMSTANCES THE PLAINTIFF HAS FAILED TO ESTABLISH HIS ONUS. IT IS MORE PROBABLE THAN NOT THAT THE MONEY IS OWED BY HIM FOR THE VCR BY THE DEFENDANT COMPANY AND THE CLAIM IS DISMISSED" (t 15.24-43) 14 The Magistrate directed the plaintiff to collect the VCR from the defendant (t 15.49-50). 15 Thus the plaintiff was given a reasonable opportunity to present his case. The Magistrate preferred the evidence of the defendant and was entitled to do so. The requirements set out in Kojima were fulfilled. There has been no denial of natural justice. The appeal is dismissed. The decision of her Honour Magistrate J Carney dated 3 June 2005 is affirmed. The summons filed 28 June 2005 is dismissed. 16 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. The court orders: (1) The appeal is dismissed. (2) The decision of her Honour Magistrate J Carney dated 3 June 2005 is affirmed. (3) The summons filed 28 June 2005 is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** 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.