J. WU & Co Pty Limited v Jian WEN Trading As Revesby Metro Petrol & Anor [2006] NSWSC 931

New South Wales Supreme Court

CITATION : J. WU & Co Pty Limited v Jian WEN Trading As Revesby Metro Petrol & Anor [2006] NSWSC 931 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 8 September 2006

JUDGMENT DATE : 15 September 2006

JURISDICTION : COMMON LAW - Administrative Law List

JUDGMENT OF : Associate Justice Malpass

DECISION : The Summons is dismissed. The Plaintiff is to pay the cost of the proceedings.

CATCHWORDS : Late service of statements - alleged denial of natural justice.

J WU & Co Pty Limited (Plaintiff) PARTIES : Jian WEN Trading As Revesby Metro Petrol (First Defendant) Tieming QI Trading As Revesby Metro Petrol (Second Defendant)

FILE NUMBER(S) : SC 12825 of 2006

COUNSEL : Mr H. Wong Solicitor (Plaintiff) Mr K. Manion (Defendant)

SOLICITORS : Zhang Shijing, Lawyers (Plaintiff) Pride Parish Lawyers (Defendants')

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 1943 of 2005

LOWER COURT JUDICIAL OFFICER : Falzon LCM

LOWER COURT DATE OF DECISION : 17 May 2006

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Associate Justice MALPASS

15 September 2006

12825 of 2006 J WU & Co Pty Limited v Jian WEN Trading As Revesby Metro Petrol & Anor

JUDGMENT 1 The plaintiff sold a service station to the defendants. Settlement was fixed for 16 November 2005. A stock take took place. It gave rise to a dispute. Following the dispute, the defendants gave a cheque to the plaintiff in the sum of $10,000. Thereafter, the defendants stopped payment on the cheque and it was dishonoured. 2 The plaintiff brought proceedings in the small claims division of the Local Court. In those proceedings it claimed the sum of $10,000 on the basis of breach of contract. The proceedings were defended and a cross-claim was filed. In dealing with the dispute, the court followed the usual practice for detemining small claims. 3 Directions were given for the filing and serving of statements. The plaintiff complied with the directions. The defendants did not. It may be that the solicitor for the defendants was confronted with various problems (including the absence overseas of her clients). 4 The first direction required the defendants to file and serve statements by 15 March 2006. On 29 March 2006, further directions were given. These directions required filing and serving of any statement or document by 26 April 2006. 5 On 12 May 2006, 2 draft statements from the defendants (without annexures) were served on the plaintiff. On 15 May 2006, the defendants applied for a vacation of the hearing date (17 May 2006). This application was refused. 6 On the morning of the hearing, the defendants served a statement from their solicitor (Shaye Chapman). Largely, it reproduced the contents of a telephone conversation had by her with the stock taker (Mr Oliver). 7 The hearing commenced and concluded on 17 May 2006. It was heard by a Magistrate (Mr Falzon LCM). The parties were legally represented (Mr Zhang and Mr Chapman). The hearing occupied much of the day. It was stood down at one stage and there were interruptions from time to time whilst the Magistrate dealt with interposed matters. 8 His Honour delivered an ex tempore judgment. He dismissed the proceedings brought by the plaintiff. He allowed the sum of $313.50 on the cross-claim. 9 On 13 June 2006, the plaintiff filed a Summons in this court. It brings an appeal against the decision of the Magistrate. It is brought on the ground of denial of natural justice. It is brought against the dismissal of the plaintiff's proceedings only. 10 The grounds for appeal set forth in the Summons are as follows:- 1. The Plaintiff was denied natural justice. 2. The Judgment entered by the learned Magistrate in the Sutherland Local Court Civil Claim No: 1493/05 was entered without affording the Plaintiff natural justice because the Plaintiff was denied an opportunity to respond to the statement of the Defendants' solicitor. 11 The appeal was heard on 8 September 2006. Both parties were represented by counsel. Counsel for the plaintiff provided a chronology and a written outline of submissions. Both counsel addressed orally. 12 Whilst the grounds of appeal limited the appeal to a challenge in respect of the statement of the solicitor for the defendants, argument was presented by counsel for the plaintiff which extended also to matters concerning the admission of the two statements made by the defendants. Because these matters fell outside the scope of the appeal, they cannot assist the plaintiff in this case. However, for completeness, some reference will be made to them. 13 As has been said so many times, the concept of "natural justice" is a flexible one. The experience is that cases turn on their own particular circumstances. The plaintiff bears the onus of demonstrating that there was a denial of natural justice that justifies a disturbing of a decision of the Magistrate. 14 Various matters have been argued on behalf of the plaintiff. I shall briefly refer to certain of them. It was said that there was a denial of opportunity to get instructions concerning the statements. It was said that the Magistrate failed to give any ruling on the admissibility of the statements. It was said that the plaintiff was denied an opportunity to have an adjournment. It was said that the plaintiff was denied the opportunity of responding to the statements. 15 Firstly, I will deal generally with these contentions. Later, I will refer to specific matters. 16 The plaintiff has not put forward any evidence to support the contention that it did not have the opportunity to give instructions concerning the statements. The manner in which the hearing was conducted would suggest that the late service of the statements caused no prejudice to the plaintiff and that there was opportunity during the day to obtain any instructions that may have been required. Whilst it may be that the transcript reveals no formal expression of a decision to admit the statements, the hearing was conducted on the basis that the statements would be admitted. The Magistrate was not asked to make a formal ruling. The plaintiff did not make any application for adjournment. There is no suggestion in the transcript that the plaintiff needed an opportunity to present material in reply to any statements. No evidence has been placed before this court which suggests that there was material which the plaintiff would have placed before the Magistrate, if it had been given the opportunity to do so. 17 I should also add that one feature of the submissions made on behalf of the plaintiff was the absence of any reference to the reasons given by the the Magistrate, which brought about his decision to dismiss the plaintiff's proceedings. Apparently, the expression of reasoning process that led him to dismiss the plaintiff's proceedings was not seen as advancing in any way the plaintiff's case on appeal. 18 Before proceeding to an analysis of what appears from the transcript, it is convenient to briefly identify the nature of the dispute between the parties. There was competing evidence given by the parties. In his written outline of submissions, counsel for the plaintiff expressed the dispute in the following terms: "7. The Plaintiff claims that the dishonoured cheque was part of the price of agreed stock (page 4 Plaintiff's affidavit, paragraphs 11 and 12), whereas the Defendants defended that it was "comfort cheque" only, towards refund of unwanted stock (page 74 Plaintiff's affidavit, paragraphs 45 to 47)." 19 The Magistrate was left to determine the dispute by resolving the conflict between the competing evidentiary versions. He did so by preferring the evidence of the defendants. 20 The transcript indicates that the Magistrate took the approach that the statement provided by the solicitor for the defendants was not of any importance in the deciding of the dispute. This approach is confirmed when a reading is made of his judgment. The judgment contains no reference to that statement. 21 It may be added that a reading of the statement reveals little of probative value. It did little more than provide some evidence that there was an argument about the stock take and the defendants did not want to provide a cheque. It may also be added that, had the evidence of Mr Oliver been regarded as of importance to the plaintiff, he could have been approached (if that had not been done) to provide a statement for use in the proceedings. 22 In any event, the statement from the solicitor was the subject of submissions made on behalf of the plaintiff. However, the transcript would suggest that the matter of importance (from the point of view of the solicitor for the plaintiff) was his contention that Mr David Tong (rather than Shaye Chapman) was in fact the solicitor for the defendants. 23 A reading of the transcript suggests that only the two statements of the defendants were the subject of an objection to admissibility into evidence. It also reveals that the basis for the objection was of a technical nature (delay and failure to observe directions, together with a lack of signature). It was not an objection based on prejudice (the need to get instructions, the need for an adjournment or the need to respond to the material contained in the statements). The following appears in the transcript (transcript p 10-11): ZHANG: Thank you Your Honour. Yesterday I received my friend's document they sent to me for the statement of the defendant, the defendant's statement. I rejected to accept this statement. The reasoning is, the reason the Court..(not transcribable).. there are two chances, two chance to do the statement. One is on 11 February, was a pre-trial -- …. ZHANG: Sorry, I said I rejected my friend's handing statement of the defendant, defendant's statement. …. ZHANG: I reject it, the reason is the Court already gave two chance to file this document but they haven't. One is on 11 February, the pre-trial, the Court said, "You have to file on 15 of the March" and then they didn't do it on time and then on 29 of the March for the hearing where we went to the Court and the Court said, and my friend and his client said that they are, they are in overseas, that they haven't, the defendant was in overseas, they haven't a chance to do the statement. And then Court gave the second chance to file these documents on 29 of the March 2006 and the Court ordered the defendant…..(not transcribable).. to file any statement on or before once the 5 April 2006. And then when they filed on that date, where we made a response on 19 April 2006, however, and the defendant sent us the statement, he suggested that we read the statement, we haven't the time to respond or haven't time to look at the detail, is breach of the Court order. This is the second reason. The third reason is when I roughly look at the statement they haven't signature of the witness, the defendant, defendant hasn't signed signature at the, at the back and they haven't have, hadn't either original statement. This is not original statement, they haven't, one of them, one of these, Jian Wen, Ti Ming Chi, they are not dated and also they have signature on it but I'm aware they haven't had original statement. And second one, second defendant is Jian Wen, it also hasn't signature on it, Jian Wen is a defendant, she hasn't signed this document. So this is why I rejected their statement, why is the delay, why is there no signature, why is this not original ones. Second issue is they mentioned for the compensation for the damage. The damage I look at there, the cross-claim, and I look at the claim, the claim—" 24 Following an exchange between the Magistrate and Mr Zhang, (apparently concerning whether or not the Magistrate had the original statements before him), Mr Zhang appears to have reached the stage where he had accepted that the two statements were going to be admitted and wanted to make submissions in relation to them (transcript p.12). Thereafter, Mr Zhang made submissions. 25 In my opinion, the plaintiff has failed to demonstrate a denial of natural justice. It can be added that the statement of the solicitor has not been shown to have any materiality to the result reached by the Magistrate. 26 The Summons is dismissed. The plaintiff is to pay the cost of the proceedings.