Supreme Court New South Wales Medium Neutral Citation: Touma v Oayda [2013] NSWSC 1136 Hearing dates: 14 February 2013 Decision date: 19 August 2013 Jurisdiction: Common Law Before: Button J Decision: (1) Appeal allowed. (2) Cross appeal allowed. (3) The orders of Magistrate Gilmour of 29 March 2012, including as to costs, are quashed. (4) Matter remitted to the Local Court for hearing. (5) No order as to costs of this appeal. Catchwords: CIVIL LAW - appeal from Local Court - proceedings terminated during cross-examination - no re-examination permitted - parties not permitted to address - denial of procedural fairness - matter remitted to Local Court Legislation Cited: Evidence Act 1995 Local Court Act 2007 Warehousemen's Liens Act 1935 Cases Cited: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 R v Bozatsis (1997) 97 A Crim R 296 Category: Principal judgment Parties: Anthony Touma (P1) Parkview Constructions Pty Ltd (P2) Parkview Sydney Developments Pty Ltd (P3) Robert Oayda (D1) Representation: Counsel: A Vincent (P1-3) L Tyndall (D) Solicitors: Salim Rutherford Lawyers (P1-3) File Number(s): 12/32973 Decision under appeal Jurisdiction: 9109 Date of Decision: 2012-03-29 00:00:00 Before: Gilmour LCM File Number(s): 2010/355357, 2011/217644 Judgment 1This is an appeal and cross appeal each brought pursuant to s 39 of the Local Court Act 2007 with regard to a judgment of a magistrate in a civil matter. To state the area of dispute with great succinctness, it was to do with possession of a motor vehicle. 2Mr Oayda was unrepresented in the Local Court, but represented before me. Mr Touma, Parkview Constructions Pty Ltd, and Parkview Sydney Developments Pty Ltd were all represented by the one counsel in the Local Court, and by a different barrister before me. 3Mr Oayda was the plaintiff in the Local Court, and the respondent and cross-appellant before me. For ease of comprehension, I shall refer to him as the plaintiff or by name. Mr Touma, Parkview Constructions Pty Ltd, and Parkview Sydney Developments Pty Ltd were the first, second and third defendants in the Local Court and the appellants before me. For ease of comprehension, I shall refer to them as the defendants, and by an abbreviated name when necessary. Nature of appeal 4As I have said, these proceedings were brought pursuant to s 39 of the Local Court Act, and it is not necessary for me to set out that well-known provision. Both parties were agreed that the appeal and cross appeal raised questions of law and leave was not therefore necessary. Facts 5These were simple. The case for the plaintiff was as follows. Mr Oayda owned an unregistered black 1968 Mercedes motor car. He wished to store it away from his home in the eastern suburbs. To that end, he spoke to an associate, Mr Malouf, who agreed to store it at premises at Campsie free of charge. Accordingly, the Mercedes was taken from the home of the plaintiff by a tow truck. 6Mr Malouf had a commercial relationship with Mr Touma. Mr Touma was the controlling mind of Parkview Constructions and Parkview Developments. Mr Malouf was the property manager of an old factory owned by Parkview Developments that was used by a number of persons for storage. 7Eventually, those premises were to be developed, and Mr Malouf was required to remove the Mercedes from that location. 8Mr Malouf informed Mr Oayda of that fact, and a tow truck was duly dispatched to retrieve the Mercedes and return it to the home of Mr Oayda. Unfortunately, the tow truck bought the wrong car to the home of Mr Oayda. 9Thereafter, the Mercedes was removed from the premises by other persons and not provided to Mr Oayda. Mr Oayda approached Mr Touma and asked for the return of his motor vehicle. According to the undisputed evidence of Mr Oayda, Mr Touma said that the Mercedes would not be returned, and that he, Mr Touma would make things as difficult as possible for Mr Oayda. It is the position of Mr Oayda that Mr Touma said those things because of ill feeling on the part of Mr Touma towards Mr Oayda, founded upon business dealings that went sour some years before. 10According to the case for Mr Touma, there was a period during which he refused to provide the Mercedes to Mr Oayda because there was no evidence with regard to who really owned the motor vehicle, especially bearing in mind the fact that it was unregistered. 11Mr Oayda commenced proceedings in the Local Court in detinue and for damages against Mr Touma and the two corporate defendants. The three defendants commenced their own proceedings against Mr Oayda, claiming in short that, assuming that the motor vehicle belonged to Mr Oayda, he was liable in the tort of trespass by way of its presence on the property of Parkview Developments. It was also claimed that Mr Oayda was liable as a result of the presence of a motor vehicle on the property pursuant to the Warehousemen's Liens Act 1935. These proceedings were amalgamated with the original proceedings brought by Mr Oayda. 12At some stage Mr Oayda approached the police and sought their help in resolving the problem. They declined to get involved in what they regarded as essentially a civil dispute. 13By the time the proceedings came on for hearing, Mr Touma had offered to return the motor vehicle to Mr Oayda and not to press the cross-claim. However, Mr Oayda was determined to continue, intent upon revealing to the court the behaviour of Mr Touma. Procedural history 14A number of magistrates made efforts to case manage the matter, and, if possible, resolve it before a full hearing. All of those efforts were unsuccessful. 15At some stage before the hearing date, a "guillotine order" was made as part of case management that required each party to serve a statement detailing the evidence-in-chief of any witness proposed to be called. 16By the first day of the hearing, Mr Oayda had served statements of himself on the solicitors for the defendants, setting out the history recounted by me above, and in particular recounting the conversation between himself and Mr Touma summarised above. 17The defendants served no statement of Mr Touma with regard to any matter, including by way of contradiction of the conversation that was deposed to by Mr Oayda. Nor did the defendants serve a statement from Mr Malouf, who was, as I have indicated, at least at one stage in a commercial relationship with the defendants. Instead, the defendants served a statement of a Ms Romero, who was an employee of Parkview Group Australia Pty Ltd. In fact, she had no direct knowledge of the events in question, but was merely in a position to give evidence of matters that she inferred from the business records retained by the defendants. 18At the start of the hearing, Mr Oayda, (who, as I have said, was appearing for himself) informed the Court that he had sought a statement from Mr Malouf, but Mr Malouf had refused to provide him with one. He also indicated to her Honour that Mr Malouf had been subpoenaed by him to give evidence. 19In short, the undisputed position was that no statement from Mr Malouf was served by Mr Oayda on the defendants in accordance with the guillotine order, but not through lack of trying on the part of Mr Oayda. 20At an early stage of the hearing, counsel for the three defendants objected to Mr Malouf being called, in the absence of service of the statement in compliance with the guillotine order. That objection was upheld. It followed that Mr Oayda was prohibited from calling Mr Malouf. 21That left open the question whether, in those circumstances, Mr Oayda could adduce in evidence the things that Mr Oayda deposed Mr Malouf had said to Mr Oayda about the arrangement with regard to storage of the Mercedes. At that stage, counsel for the three defendants objected to those parts of the statement of Mr Oayda that sought to demonstrate those conversations between Mr Oayda and Mr Malouf. That objection was also upheld, at least initially. As he was unfamiliar with the rules of evidence, Mr Oayda was in no position to invite the attention of the learned Magistrate to ss 63 and 64 of the Evidence Act 1995, and the definition of an unavailable witness contained in the Dictionary to that Act. 22It is noteworthy that, after that objection to the evidence of Mr Oayda was upheld in the context of the prohibition of the calling of Mr Malouf, counsel for the defendants indicated to her Honour that he would be relying upon the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 against Mr Oayda with regard to the failure of Mr Oayda to place any evidence of Mr Malouf before the court. 23At a later stage of the hearing, and after further evidence had unfolded, the learned Magistrate revisited that evidentiary ruling. Her Honour did not hold that Mr Malouf could be called by Mr Oayda in contravention of the guillotine order. Instead, her Honour held that Mr Oayda could lead evidence from himself of what Mr Oayda said to Mr Malouf about the storage of the Mercedes. 24As a result of that revisited ruling, counsel for the defendants indicated that he proposed to call Mr Malouf, and indeed perhaps Mr Touma. That would, of course, have been contrary to the guillotine order that I have previously discussed. 25At around the same time her Honour enquired of counsel for the defendants as to how the defendants would succeed, both in defending the claim of Mr Oayda and on the cross claim, in light of the uncontradicted evidence of Mr Oayda that Mr Touma had said that he was well aware of who owned the car, and proposed to refuse to return it simply out of spite. 26By this stage Mr Oayda had been called in his case, and been cross-examined by counsel for the defendants. The case of the plaintiff had closed, Ms Romero had been called, and she was part way through her cross-examination by Mr Oayda. 27By then, the transcript reveals, the learned Magistrate had reached a level of exasperation that was, with respect, understandable. Her Honour rather peremptorily, with respect, ended the proceedings. 28First, her Honour dismissed the claim against the second defendant, namely Parkview Constructions, because there was no evidence that that corporate entity had anything to do with the retention of the Mercedes. Secondly, In light of the uncontradicted evidence of the conversation between Mr Oayda and Mr Touma, a judgment in detinue for the plaintiff was entered against Mr Touma and the third defendant, Parkview Developments. Thirdly, her Honour ordered the return of the Mercedes to Mr Oayda. Fourthly, no damages were awarded to Mr Oayda. Fifthly, the cross-claim of all three defendants was dismissed. That was on the basis that, in light of the absence of any direct evidence that the Mercedes was in fact stored on the premises at Campsie associated with any defendant, and in light of the refusal of the learned Magistrate to infer that the motor vehicle was stored on those premises between the dates of it being towed to and from that location, there was no evidence that it had been present during that time. Accordingly there could be no liability either by way of trespass or under the Warehouseman's Lien Act. 29As for costs, although the claim of the plaintiff against the second defendant had failed, as a matter of discretion in all the circumstances of the case, her Honour did not order costs in favour of that company. 30As for the successful claim of the plaintiff against the other two defendants, and the unsuccessful cross-claim of all three defendants against the plaintiff, her Honour did not order costs in favour of the plaintiff above and beyond disbursements. That was on the basis of very well-established principle that self-represented litigants are not entitled to professional costs. The appeal brought by the three defendants 31By the end of oral argument before me, counsel for the defendants agreed that the appeal could be dealt with by my judgment addressing the following grounds: (1)The learned Magistrate erred in admitting certain evidence pursuant to s 64(2) of the Evidence Act; (2)The hearing was conducted in such a manner that there was a denial of procedural fairness; and (3)Consequentially, the costs order made by the learned Magistrate was erroneous. The cross appeal brought by the plaintiff 32By the end of oral argument, the following grounds of cross appeal were pressed: (1)The hearing was conducted in a manner that denied the plaintiff procedural fairness with regard to the quantum of the claim; and (2)The costs order made by her Honour was erroneous. 33In short, in summary, both parties submitted that the learned Magistrate had committed at least one error of law, and the matter should be remitted to the Local Court for rehearing. Determination 34It is convenient to deal first with the grounds of both the appeal and the cross appeal alleging procedural unfairness. 35At the time at which the learned Magistrate effectively terminated proceedings, the cross-examination of the single defence witness had not been completed. Nor, of course, had counsel for the defendants had a chance to re-examine that witness. 36One can respectfully sympathise with the frustration expressed by the learned Magistrate by that stage, in light of the fact that this simple dispute with regard to the return of a motor vehicle was by then in its third day of hearing. 37And that frustration was not directed only towards the defendants, and the tactical positions adopted by their counsel, in light of the fact that the plaintiff had previously refused to resolve the matter on terms very favourable to himself. 38Nevertheless, it was an error of law for the Magistrate to terminate and resolve the proceedings at that stage. Mr Oayda should have been permitted to complete his cross-examination of Ms Romero. More importantly, counsel for the defendants should have been permitted to re-examine his witness. Although unlikely, it is possible that re-examination could have brought out evidence that was significant. 39Unlike the foreshadowed evidence of Mr Touma and Mr Malouf, the evidence of Ms Romero had been served upon Mr Oayda in accordance with the guillotine order. There is nothing to suggest that, on any basis, she had not been properly called by counsel for the defendants. 40It was a denial of procedural fairness to the defendants to deprive them of re-examination of a witness who had been properly called, who had given evidence-in-chief, and who had been cross-examined. Furthermore, in proceeding to determine the matter peremptorily without affording the parties the opportunity to be further heard, the circumstances amounted to a denial of procedural fairness in the sense discussed in Kioa v West [1985] HCA 81; (1985) 159 CLR 550. 41It follows that there had been a denial of procedural fairness to the defendants, and that this ground has been made good. 42I consider that the related ground contained in the cross appeal of the plaintiff should succeed as well, for the same general reasons. When the proceedings were effectively terminated, her Honour heard nothing from the plaintiff with regard to his claim for damages, in addition to the successful claim in detinue. Although one may query whether the quantum of any damages founded upon the fact that the plaintiff did not have possession of an unregistered and apparently unregistrable motor vehicle for a period of some months would be significant, the claim had been pleaded, and I consider that the plaintiff was entitled to have it determined. 43In short, I consider that it was an error of law for her Honour to terminate the proceedings at the stage when her Honour did, and accordingly the orders made should be quashed. That includes the ancillary costs orders. 44As for the other grounds of the appeal and cross appeal, in light of my determination with regard to the primary ground, I can deal with them rather briefly. 45With regard to the change in position of her Honour with regard to the admission of things said by Mr Malouf to Mr Oayda, it is well known that evidentiary rulings are subject to alteration and are open to being revisited: see R v Bozatsis (1997) 97 A Crim R 296 at 303. In any event, (and leaving aside the more fundamental question as to whether or not the things said by Mr Malouf to Mr Oayda did indeed fall foul of the rule against hearsay contained in s 59 of the Evidence Act, or could be admissible pursuant to, for example, s 66A) in light of the position adopted in the Local Court by counsel for the defendants, it is hard to see how Mr Malouf did not fall within the definition of an unavailable witness, thereby enlivening ss 63 and 64 of the Act. It will be recalled that the unrepresented plaintiff had done everything he could to have Mr Malouf give evidence; it was the defendants who objected to that occurring, on procedural grounds. 46It follows that I consider that the second position adopted by the Magistrate was the correct one. Therefore ground one of the appeal is not made out. 47As for the submission that, in revisiting the evidentiary rulings, the learned Magistrate conducted the hearings in such a manner so as to give rise to an apprehension of bias, I do not consider that this ground can be made good. This is because, as I have said above, it is well known that evidentiary rulings can be revisited during proceedings and lack the finality of a judgment or order. Quite apart from that, if the defendants during the hearing felt that the Magistrate was acting in a manner that gave rise to an apprehension of bias, an application ought to have been made by their counsel for her Honour to disqualify herself. No such application was made. In these circumstances I do not consider that this ground has merit. 48As for any forensic disadvantage arising from the of alteration of the evidentiary rulings, counsel for the defendants was always on notice from the served statements of Mr Oayda that he sought to give evidence of what Mr Malouf said about the arrangements pertaining to the Mercedes. And I consider that one can infer from the late notification by counsel for the defendants that Mr Malouf could be called as a witness in its case that he was available to them. In the circumstances, I consider that there was no forensic disadvantage to the defendants arising from the alteration of the position of the Magistrate with regard to the admissibility of the evidence from Mr Oayda as to what Mr Malouf had said to Mr Oayda. 49As for the question of calling Mr Touma, he could give no evidence of conversations between Mr Malouf and Mr Oayda at which he was not present. And it had always been open to counsel for the defendants to notify the plaintiff that evidence would be called from Mr Touma as to what passed between Mr Touma and Mr Oayda. In short, I consider that the alteration in the position of the Magistrate with regard to the evidence about what Mr Malouf had said to Mr Oayda has no relevance to the question of the calling of Mr Touma. 50In short, I do not consider that any forensic disadvantage amounting to a denial of procedural fairness can be demonstrated in these circumstances. 51As for the remaining ground of the cross appeal by the plaintiff, there is no need to determine whether there are circumstances in which a self-represented litigant can obtain a costs order. In light of my determination of the primary ground, I consider that all costs orders should be quashed. Conclusion 52I respectfully consider that there was a denial of procedural fairness in this matter. It affected the defendants primarily and the plaintiffs secondarily. As a result, I consider that the appeal should be allowed, and the orders made by the learned Magistrate quashed. 53Is impossible for me to resolve the matter myself pursuant to s 41 of the Local Court Act. In particular, if the matter is to proceed to finality, the evidence of Ms Romero will need to be completed. Furthermore, it is possible that Mr Malouf will be called. 54As for the costs of this appeal, it is true that the defendants succeeded with regard to an important ground. On the other hand, the plaintiff joined in that ground, at least indirectly, in that he also submitted that the matter should be remitted to the Local Court as a result of the early termination of the hearing. Furthermore, the other important grounds of the defendants failed. Finally, the plaintiff was unrepresented at first instance and cannot bear any forensic responsibility for the error into which the learned Magistrate fell. In all the circumstances, I consider that no order for costs of the appeal should be made. 55Finally, I was informed on the hearing of the appeal before me that the Mercedes was returned to the plaintiff some time ago. One hopes that, before there is further hearing in the Local Court, the matter can be the subject of discussion and resolution between the parties, before further time, energy and costs are expended by them on this dispute. Orders 56I make the following orders: (1)Appeal allowed. (2)Cross appeal allowed. (3)The orders of Magistrate Gilmour of 29 March 2012, including as to costs, are quashed. (4)Matter remitted to the Local Court for hearing. (5)No order as to costs of this appeal. ********** 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. Decision last updated: 19 August 2013