John Marchbank v Anwar Harb [2011] NSWDC 110

District Court New South Wales

Medium Neutral Citation: John Marchbank v Anwar Harb [2011] NSWDC 110 Hearing dates: 18 August 2011 Decision date: 26 August 2011 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Appeal dismissed with costs Catchwords: Appeal from the Small Claims Division of the Local Court on the grounds of alleged procedural unfairness Legislation Cited: Local Court Act 2007 Cases Cited: Dimond v Lovell [2002] 1 AC 384 Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 Category: Principal judgment Parties: John Marchbank (Plaintiff) Representation: Mr D Grieve QC with Mr K Oliver of counsel (Plaintiff) Holman Webb (Plaintiff) File Number(s): 2011/142613 Publication restriction: None

Judgment 1The plaintiff appeals from a judgment of the Local Court sitting in its Small Claims Division, made by an Assessor on 8 April 2011. 2Such appeals may only be brought to the District Court on the grounds of lack of jurisdiction or denial of procedural fairness: s39(2) of the Local Court Act 2007. 3The plaintiff, Mr Marchbank, contends that he was denied procedural fairness by the Assessor. He relies upon two grounds. 4The first ground was set out in his Summons Commencing an Appeal filed in this court on 2 May 2011. I will refer to this as the "Noticed Fact" ground. 5The second ground was only articulated in oral submissions. I will refer to this second ground as the "Non-Compensable Services" ground. 6The defendant to the appeal, Mr Harb, contends that the appeal should be dismissed on the basis that the plaintiff has failed to demonstrate any procedural unfairness, either on the basis of the ground set out in the Summons, or on the basis of the ground articulated in oral submissions.