Cuomo v Nesci (trading as Nescis Lawyers) [2006] NSWSC 620

New South Wales Supreme Court

CITATION : Cuomo v Nesci (trading as Nescis Lawyers) [2006] NSWSC 620

HEARING DATE(S) : 20 June 2006

JUDGMENT DATE : 30 June 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The proceedings are dismissed. The Plaintiff is to pay the costs of the proceedings.

CATCHWORDS : Plaintiff is a litigant in person who was a defendant to a claim for legal costs in the order of $1,000 in the Small Claims Division - his defence was that the fees were excessive - he did not appear at the hearing allegedly because of ill health - judgment entered in his absence - unsuccessful application to set aside judgment - appeal brought to this Court without leave and out of time on the basis of denial of natural justice alleging inter alia that he was not allowed to present his case.

CASES CITED : Carr v Finance Corp of Australia Ltd (No 1) 147 CLR 246

PARTIES : Gino Cuomo (Plainitff) Bruno Nesci (t/as Nescis Lawyers) Defendant

FILE NUMBER(S) : SC 12895/06

COUNSEL : In Person (Plaintiff) T Saunders (Defendant)

SOLICITORS : Not represented (Plaintiff) Nescis Lawyers (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 13079/04

LOWER COURT JUDICIAL OFFICER : Maloney LCM

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Friday, 30 June 2006

12895/06 Gino Cuomo v Bruno Nesci (t/as Nescis Lawyers)

JUDGMENT 1 His Honour: The Defendant is a solicitor. The Plaintiff is a former client. The Defendant brought proceedings in the Local Court to recover legal fees in the sum of $1,166.00. The claim was dealt with in the Small Claims Division of that Court. 2 What happened in the Local Court followed the procedure for the hearing of small claims. The Plaintiff filed a defence. There was a Pre-Trial Review. The Plaintiff appeared. A hearing date was allocated. Written statements were exchanged. 3 The proceedings came on for hearing before an Assessor on 19 April 2005. The Defendant was legally represented. The Plaintiff did not appear. 4 After the matter had been called outside the Court, the Assessor proceeded to a hearing in the absence of the Plaintiff. There is evidence to the effect that the Assessor appeared to have read the statements provided by the parties and that after a consideration of this material, he entered judgment for the Defendant. 5 The Plaintiff then brought a Notice of Motion to have the judgment set aside. This application was heard on 9 June 2005 by Maloney LCM. The Plaintiff appeared in person. He relied on his own affidavit and made oral submissions. His application was dismissed. 6 The Plaintiff has brought proceedings in this Court. The original Summons was filed on 6 July 2005. He now proceeds on an Amended Summons. 7 The hearing took place on 20 June 2006. The Plaintiff appeared in person. The Defendant was legally represented. The parties treated the proceedings as being a challenge to both decisions. 8 Error is not a ground of appeal from a judgment or order made in the Small Claims Division. The error of challenge is restricted to matters of lack of jurisdiction or denial of natural justice. As the Court clearly has jurisdiction, the only matter left is denial of natural justice. 9 Before proceeding to look at this matter, it is also necessary to mention other hurdles that may stand in the path of the Plaintiff. The Magistrate made what might be regarded as an interlocutory decision. An appeal against such a decision made by the Assessor is presently incompetent. It has been brought out of time and an extension of time is required to enable it to be brought. I shall return to these hurdles in due course. 10 Firstly, it is convenient to look at the merits of the two challenges. It would be futile to grant either an extension of time or leave if the appeal was lacking in merit. 11 Generally speaking, the complaint of the Plaintiff is that he has not been given an opportunity to present his case. He disputes that the Assessor read his statement. He somewhat colourfully asserts that the Assessor dealt with the proceedings behind his back. He insists that the Magistrate did not allow him to speak. He contends that both judicial officers exhibited bias in that they put more weight on what was said by a solicitor.