Supreme Court New South Wales Medium Neutral Citation: Filby v Neeson & Anor (No 2) [2016] NSWSC 194 Hearing dates: 3 March 2016 Date of orders: 03 March 2016 Decision date: 03 March 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. The Plaintiff's Amended Summons be dismissed. 2. The Plaintiff pay the Defendants' costs of the proceedings up to 1 December 2015 on the ordinary basis and on an indemnity basis thereafter. Catchwords: APPEAL FROM LOCAL COURT – refusal to grant adjournment – denial of procedural fairness – non-attendance of witnesses – appeal on a question of law – appeal dismissed. Legislation Cited: - Civil Procedure Act 2005 (NSW) – s 56(1), s 56(2) - Criminal Appeal Act 1912 (NSW) – s 6 - Local Court Act 2007 (NSW) – s 39, s 40(1) Cases Cited: - BKE v Office of Children's Guardian and Anor [2015] NSWSC 523 - Bloch v Bloch (1981) 180 CLR 390 - Clements v Independent Indigenous Advisory Committee [2003] FCA FC 143, 131 FCR 28 - Filby v Neeson & Anor (No 1) [2016] NSWSC 193 - HGV v The Queen (1999) 197 CLR 414 - House v King (1936) 55 CLR 499 - Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 - Touma v Saparas [2000] NSWCA 11 Category: Principal judgment Parties: Mark Andrew Filby – Plaintiff Daniel Cormac Bernard Neeson and Kieran Corey Michael Neeson – Defendants Representation: Counsel: M.K. Rollinson (until 11.55am) – Plaintiff In person (from 11.55am) – Plaintiff A. Kaylinger – Defendants Solicitors: Mark Filby – Plaintiff Bay Legal – Defendants File Number(s): 2015/229608 Judgment (revised from ex tempore) 1. The original plaintiff in the proceedings that resulted in the judgment of the Local Court the subject of this appeal was the late Bernard Patrick Neeson. He was also known as "Doc Neeson". Doc Neeson was formerly the lead singer of The Angels, a band that was in the vanguard of the golden age of Australian pub rock during the 1970s and 80s. 2. Mr Neeson commenced the proceedings in the Local Court in 2014. The defendant was Mark Andrew Filby. Mr Neeson sought recovery of $70,500 he claimed that he lent to Mr Filby in 2008 and 2009, and a further amount of $750 he claimed to have lent in 2012. In an amended defence filed just before the hearing, Mr Filby admitted receiving the funds said to have been advanced in 2008 and 2009, but contended that they were not loans but an "investment" by Mr Neeson in Mr Filby's business venture known as "Cashtime". 3. Mr Neeson passed away in 2014. His sons, Daniel Cormack Bernard Neeson and Kieran Corey Michael Neeson, being the executors of his estate, were substituted as plaintiffs ("the Executors"). The proceedings in the Local Court were heard on 6 July 2015. On 14 July 2015 the Presiding Magistrate upheld the executors' claim to the extent they sought recovery of the funds advanced in 2008 and 2009. Judgment for $70,500 with interest and costs was entered against Mr Filby. 4. Mr Filby now appeals to this court pursuant to s 39(1) of the Local Court Act 2007 (NSW) which confers on him a right of appeal on a question of law. To the extent necessary, he seeks leave to appeal on a mixed question of law and fact pursuant to s 40(1) of the Local Court Act. 5. The sole complaint made in Mr Filby's amended summons is that the Presiding Magistrate erred in refusing an adjournment of the hearing to enable him to call two witnesses who were said not to be available on the day of the hearing, with the result that he, that is Mr Filby, was thereby denied procedural fairness. A complaint of a breach of procedural fairness of itself can raise a question of law (see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143, 131 FCR 28 at [8] per Gray ACJ and North J, contra Gyles J at [67]; BKE v Office of Children's Guardian and Anor [2015] NSWSC 523). However, even if such a complaint did not raise a question of law, if it was established, given the amount that was involved in the dispute and the importance attached to courts affording procedural fairness to the parties, I would have granted leave to appeal under s 49(1) of the Local Court Act to raise the issue. 6. Until this morning, Mr Filby was represented on the appeal by Counsel. Shortly after submissions commenced in support of the appeal, an application was made for an adjournment by his Counsel. The application was refused (Filby v Neeson & Anor (No 1) [2016] NSWSC 193). After I refused the adjournment, Mr Filby sacked his Counsel. He thereafter appeared for himself. Understandably, Mr Filby struggled to identify matters raising a question of law. After some prompting, he agreed to the Court considering his former Counsel's written submissions, which addressed the ground in the amended summons I have just identified. 7. Mr Filby also made a variety of other complaints concerning the judgment against him, none of which are raised in his amended summons. Nevertheless, out of an abundance of caution, those contentions will be addressed. 8. To address Mr Filby's complaints, it is necessary to further describe the course of the proceedings before the Local Court and the events surrounding the refusal of the application for an adjournment. The Local Court Judgment 1. Based on the material that was tendered in this Court, it appears that the Executors' case against Mr Filby rested upon a document sent by Mr Neeson's then partner, Ms Anne Souter, to Mr Filby on or about 11 March 2009 by email and post, and Mr Filby's response. In her document, Ms Souter stated that she was preparing Mr Neeson's bookkeeping/accounts for his "2008 Tax Return". It is evident from her document that she is seeking to reconcile various withdrawals from Mr Neeson's bank account. Under the heading "Unsecured Loans" Ms Souter addressed the amount said to be advanced in 2008, i.e. $70,500. The document included the following statement: "Doc has told me that you had promised him 30 shares in the company and later because of his exceptional assistance in times of the company's dire need you kindly offered to double his shareholding. I understand from Lisa that no share value has been determined as yet but Doc is being repeatedly reminded that documentation relating to them is now needed, so can you please look at this as soon as possible. You may not be aware of this, Mark, but Doc actually had to borrow money himself to make these payments into your account, so that you could secure IP and attend to other important company matters. He has lent you this money on an interest-free basis but he is now paying interest on it and he is totally unprotected should anything prevent you from repaying the loans. So can you please send the Shareholder's Certificate to him at [address specified] as a matter of urgency before Friday at the end of this week, Mark? At this point both the solicitor and the accountant need written confirmation of Doc's shareholding before the 20th of March, or he will suffer a significant financial loss. Please understand this is not a demand by Doc for repayment, just a request for confirmation of the information set out in this letter. Can you please send Doc a formal acknowledgement of the loans, and are you able to give some indication of what date you expect to be able to repay them?" 1. Under the heading "Doc's performances", Ms Souter referred to Mr Neeson as having supported Mr Filby's "exciting venture", and a number of performances that Mr Neeson had undertaken without payment. Ms Soutor proposed that Mr Neeson be paid for the performances on the discounted basis of $5,000 plus GST per performance or at the rate of $10,000 per performance plus GST with payment at that rate to be in "additional shares". 2. Ms Souter summarised her request as seeking acknowledgement of the cash loans, "paperwork" relating to Mr Neeson's performances, including either acknowledgement that payment is deferred or confirmation that shares will be allocated, and a signed shareholder's certificate for 60 shares. 3. On or about 6 April 2000, Mr Filby swore a statutory declaration in which he stated: "I, Mark Filby, promoter/entrepreneur of [address specified], make the following declaration under the Statutory Declarations Act 1959: 2.1 That I have been the recipient of the following cash loans from Bernard Patrick Neeson, also known as Doc Neeson, of [address specified]: $25,000 deposited to Intertainment National Network Pty Ltd on 6/6/08 $1,000 cash given to me at Shell Harbour on 10/8/08 $1,000 cash loan given to me at Shell Harbour to pay crew on 26/9/08 $5,000 deposited into my Commonwealth Savings acct BSB xxxx xxx xxxxx on 26/9/08 $5,000 paid into my Commonwealth Savings Acct BSB xxxx xxx xxxxx on 17/10/08 $20,000 deposited into my Commonwealth acct BSB xxxx xxx xxxxx on 18/11/08 TOTALING $57,000 2.2 I agree that there may be other amounts, such as those shown below, loaned to me by Bernard Patrick Neeson, which may have been deposited into a bank account of mine, including $3,000 on 4/8/08; $5,000 on 16/10/08 and $5,500 on 26/11/08, totalling $13,500. I will check my bank statements and confirm receipt of any or all of these 2.3 I acknowledge a debt to Empire Music Pty Ltd of of $61,160 including GST for performances by Doc Neeson in 2008, as detailed in invoice 003 dated 11/3/09. 2.4 I have granted 60 ordinary shares to Bernard Patrick Neeson and issued a signed Play2Win TV Pty Limited Share Certificate (No. 6) in the name of Bernard Neeson on 3 February 2009." 1. At the hearing in the Local Court, Mr Filby provided two witness statements. He was also cross-examined. In his statements he asserted that he spoke to Mr Neeson about Cashtime, although the nature of that business venture was not much explained. Mr Filby recounted various conversations with Mr Neeson which were said to demonstrate that Mr Neeson agreed to "invest" the relevant monies in the business venture. Mr Filby said that in November 2008 he arranged for the incorporation or registration of the company "Play2Win TV Pty Limited". He said that he issued 30 shares or three per cent of its shareholding to Mr Neeson. Mr Filby accepted that some of the contents of his statutory declaration were not "accurate". He claimed that when he received Ms Souter's email he read it to Mr Neeson who asked him to "humour" her as it would "help get her off my back". Not surprisingly, Mr Filby was vigorously cross-examined on his evidence concerning his dealings with Mr Neeson. 2. At the time of the luncheon adjournment of the proceedings Mr Filby was still under cross-examination. Immediately after the luncheon adjournment Mr Filby's Counsel made an adjournment application which I will describe shortly. The adjournment application was refused and the cross-examination of Mr Filby continued for a brief period. He was then re-examined. At that point the evidence closed and Counsel made submissions. 3. The Presiding Magistrate delivered reasons for judgment just over a week later. In those reasons her Honour outlined the issues raised by the parties and addressed Mr Filby's evidence in detail. The essence of her Honour's reasoning was as follows: "When giving evidence Mr Filby did not seem to be even slightly troubled about saying that he had lied in the statutory declaration. I formed the view that this was a man who was prepared to do whatever it took to further his own interest including lying. Mr Filby did not produce any written records to back up his claim of Doc Neeson's investments, further despite a notice to produce, Mr Filby provided no Play to Win financial back records to the plaintiffs. Mr Filby, I must conclude, was a most unsatisfactory witness. His evidence was wholly unbelievable and lacking credibility. I formed the view he concocted his evidence to the Court. The plaintiff has proven to the Court that the contemporaneous documents of Ms Souter's letter, as acknowledged, and the statutory declaration represented the true position of the payments made by Doc Neeson to Mr Filby but a quantum issue is raised about the loan amounts. In his statutory declaration Mr Filby acknowledged that he was the recipient of loan amounts from Doc Neeson comprising $57,000. He then went on to say, as I have noted before, 'I agree there may be other amounts such as those shown below loaned to me' and then he goes on to detail the various amounts totalling $13,500, and says, 'I will check my bank accounts and confirm receipt of any or all of these'." 1. Her Honour then proceeded to address this outstanding amount of $13,500 and concluded as follows, "On this basis the plaintiffs have satisfied me on the balance of probabilities that both amounts were lent by Doc Neeson to Mr Filby and are owed as a debt. I find for the plaintiffs in the sum of $70,500." 1. At this point it is necessary to note that the above reasoning of the Presiding Magistrate involved a determination of what was quintessentially an issue of fact for her Honour, namely, one that was based on her Honour's assessment of Mr Filby's credibility as a witness. Although I will deal with Mr Filby's complaints about this reasoning, it follows that subject to considering the argument raised concerning her Honour's alleged erroneous refusal to adjourn the proceedings, no question of law or even of mixed law and fact arises in respect of her Honour's reasoning. Refusal of the Adjournment 1. As is evident from the above narrative, Mr Filby was represented at the hearing of the Local Court by Counsel. When the matter was first called on for hearing in the Local Court, no reference was made to any difficulty in securing the attendance of any witnesses. However, immediately after the luncheon adjournment, his Counsel advised the Court that he had served three witness statements on the plaintiff's Counsel, but he only proposed to rely on evidence of two of those witnesses, namely, Mr Alan Barnes and Mr Damian Jensen. Mr Filby's Counsel advised the Presiding Magistrate that Mr Jensen was sick and could not attend and that "Mr Alan Barnes is somewhere on the South Coast for some reason and unavailable to attend today". Counsel submitted to the Presiding Magistrate that these witnesses' evidence was important. 2. Counsel for the Executors opposed the adjournment application. He stated that he had previously been advised that all of the witnesses would attend. 3. In relation to Mr Jensen, Counsel for Mr Filby told the Court that he did not have a medical certificate but that he had "been to the doctor on the previous Friday" and that he had been telephoned that morning and he said that "he was too unwell to attend". In relation to Mr Barnes it was said "that for some reason due to work commitments on the South Coast" he was not available to attend. 4. Counsel for the Executors then addressed the Court and reiterated his opposition to the adjournment and also to the tender of statements in the absence of their authors being available for cross-examination. Counsel for the Executors contended that the contents of the witness statements "[d]on't really go anywhere quite frankly". 5. Further debate continued during which Counsel for Mr Filby provided copies of Mr Jensen's and Mr Barnes' statements to the Court and addressed their significance. 6. The Presiding Magistrate gave brief ex tempore reasons for refusing the adjournment. The concluding part of her Honour's reasons was as follows: "I have no other explanation for Mr Barnes' absence today. There was no late notice that he was required to be a witness, from what I understand. He just tells the Court he has work commitments on the south coast. As to Mr Jensen, I am old [sic] he is unwell and saw a doctor for some kind of a serious complaint on Friday. I can not imagine that he would not have known about his requirement to be at Court today but there is no medical certificate provided to me and no prospect of a medical certificate provided to me to explain his absence. I certainly would have been happy to agree to the request if I had a medical certificate that did do the required things; that is, specify that Mr Jensen was unwell today, as certified by a doctor, the nature of his medical condition disclosed and the fact that he was unfit to attend Court – not unfit for work but to attend Court and an indication of when he would be well. In the absence of all those things, it is not satisfactory that Court time has been set aside to deal with this matter today and that we should wait on these two men to attend. Further, it is important to note of course, very important to note, that the matter before yours this morning had to get another date due to the unavailability of an interpreter and that date was in mid-September. Having regard to the requirement for me to deal with these civil proceedings in a way that is just, quick and cheap, on the basis of the information before me today and an unsatisfactory explanation as to the absence of Mr Barnes and Mr Jensen, with no reflection at all on Mr Rollinson, I will not allow that statements [sic] to be read." 1. At this point it is appropriate to note the contents of each of the witness statements of Mr Barnes and Mr Jensen. In his witness statement, Mr Jensen recounted his dealings with Mr Filby in relation to Cashtime. He said that he invested "$5,000-$7,000 and received a share in Play2Win". He says he met the late Mr Neeson through Mr Filby. The only evidence that Mr Jensen proffered concerning the late Mr Neeson is an assertion that he, that is Mr Jensen, "was present at a meeting between Mark, Doc and representatives of the Nine Network in 2001 where Cashtime was discussed". 2. In his statement, Mr Barnes said that he knew the late Mr Neeson for many years. He recounted the circumstances in which he came to make his own "investment" in Cashtime. The only part of Mr Barnes' statement that was capable of assisting Mr Filby's case was the following statement: "I had known Bernard Doc Neeson, the rock singer, for many years. In about mid 2008 Doc said to me to the effect, 'I told Mark that I am investing in Cash-time, tell Mark to look in his company's account, the money is there." Further Evidence 1. In this Court, Mr Filby swore an affidavit purporting to explain the non-attendance of Mr Jensen and Mr Barnes. (His affidavit also sought to reiterate his defence to the Executor's case but that aspect of his affidavit was clearly inadmissible given that this appeal is restricted to a question of law; see Rashid v Smar Pty Limited [2013] NSWSC 1712 at [7].) 2. Obviously there are some contexts in which evidence can be received concerning the circumstances surrounding the non-attendance of witnesses beyond that given to a court at the time an application for an adjournment based on that non-attendance is made and refused. For example, such evidence could found an application to re-open a matter prior to judgment, and depending on the relevant rules of court, possibly after judgment. Such further evidence might be received by an appellate court in support of an application for it to receive new or fresh evidence on an appeal by way of a rehearing. However, I am doubtful that such evidence is receivable on an appeal from the Local Court that is restricted to a question of law, even if that question concerns an alleged denial of procedural fairness. The orthodox position is that an appeal on such a question requires the attribution of some fault to the court in question and that is ascertained by reference to the circumstances that court faced at the time it heard the adjournment application (see generally Aronson and Groves, Judicial Review of Administrative Action, 5th ed, 481 to 484). 3. It is possible that a right to be heard expressly conferred by a statutory scheme might be denied through no fault of the relevant decision-maker. Depending on the circumstances such a denial might warrant interference by a court exercising a judicial review function (see Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 391 per French J). However, there is nothing in the Local Court Act which suggests that that has any application to proceedings before a magistrate. 4. In the circumstances, evidence expanding upon or even contradicting what the Local Court was told were the reasons for the non-attendance of the relevant witnesses appears prima facie irrelevant to this appeal. Nevertheless, the evidence was not objected to because, I suspect, of a belief held on the part of the Executors that it only detracted from the appeal. In those circumstances I will briefly summarise its effect. 5. In relation to Mr Barnes, Mr Filby said he left a voice message for Mr Barnes the night before the hearing in the Local Court and Mr Barnes responded by saying, "he was out of town working and that he could not make it". Mr Filby recounted Mr Barnes stating that he was not given advance notice of the hearing date. This explanation adds nothing to the position that was made apparent to the Presiding Magistrate. It was the responsibility of Mr Filby and his legal representatives to take steps to notify Mr Barnes of the date he was required to attend and, if necessary, to take steps to secure his attendance. As noted by the Presiding Magistrate, there was no explanation for Mr Barnes' absence in the sense that there was no adequate or satisfactory explanation. 6. In relation to Mr Jensen, Mr Filby's affidavit in this Court stated: "On my arrival to the office of my legal counsel at 8:00am on the morning of the hearing I phoned Damien Jensen to ask where he was. I spoke with Damien the day before the hearing under the belief he was aware of the hearing the following day. I told him we will meet at my counsel's office at 8am. He said to the effect, 'If you need me, mate, I'll be there'. When I called him at 8am, Damien said he was too ill to come in. He said he had been diagnosed with cancer and was about to undergo an operation. Damien offered to come in if he could at lunch time if I could provide a time that he was required. I could not ask my sick friend to get out of bed to be confronted by hostile journalist from Channel 9 who I knew were asking other people on the street if they were Damien Jensen or Alan Barnes. I could not put Damien under such pressure and stress in his condition so I refused to call him back to request him to come in that day." 1. This morning on the adjournment application Mr Jensen gave evidence of having received a telephone call from Mr Filby advising him that, given his medical condition and Mr Filby's concerns about the presence of television journalists outside the Court, he not attend. 2. Attached to Mr Filby's affidavit sworn on this appeal is a report from an oncologist dated 6 August 2015. The report states that Mr Jensen was diagnosed with cancer on 30 June 2015 and that he underwent surgery on 17 July 2015. 3. On its face this material clearly demonstrates that Mr Jensen had been diagnosed with cancer but a closer examination reveals that it does not really assist Mr Filby. Mr Jensen had been diagnosed as unwell on 30 June 2015. He was therefore in a position to advise Mr Filby of that diagnosis at least on the day prior to the hearing when, according to Mr Filby, he spoke to Mr Jensen. Otherwise there was sufficient time to obtain a medical certificate to be put before the Court concerning Mr Jensen's condition. 4. Further, contrary to what the Local Court was told, Mr Jensen was not too sick to attend court on the day of the hearing but instead offered to attend after lunch. Instead, Mr Filby made the decision not to require him because of Mr Filby's concern about harassment by television reporters. The Presiding Magistrate was not told of any concern about the conduct of television journalists present just outside the court precinct. If her Honour had been told that, then arrangements could have made to enable Mr Jensen to attend without being harassed. Contentions on Appeal 1. In the written submissions that were filed before his retainer was terminated, Mr Filby's Counsel contended that an erroneous refusal of an adjournment was a denial of procedural fairness. He cited the judgment of McHugh J in HGV v The Queen (1999) 197 CLR 414 at [97] to [100] ("HG"). 2. Care should be taken in invoking decisions in criminal appeals such as HG in this context. In criminal appeals the relevant question is whether one of the bases for intervention in s 6 of the Criminal Appeal Act 1912 (NSW) has been established, which is most commonly whether there has been "a miscarriage of justice". The statutory context in which this appeal is being decided is quite different. Nevertheless, it is correct to say that the rules of natural justice require that Mr Filby be afforded a reasonable opportunity to present his case (Touma v Saparas [2000] NSWCA 11 at [27]) ("Touma"). To that end, an erroneous refusal of an adjournment may amount to a denial of that opportunity depending on the circumstances. However, a decision to refuse an adjournment is a discretionary judgment and as such, a conclusion that it was erroneous can only be reached by applying the principles stated in House v King (1936) 55 CLR 499 at pages 504 to 505 (see Touma at [27] and Bloch v Bloch (1981) 180 CLR 390 at 395). Further, in reviewing the decision to refuse an adjournment in this case it must be appreciated that the Presiding Magistrate was obliged to have regard to the necessity to facilitate the "just, quick and cheap resolution of the issues in the proceedings" (Civil Procedure Act 2005 (NSW), ss 56(1) and 56(2)). Her Honour was clearly cognisant of that obligation. 3. In so far as the Presiding Magistrate declined to grant an adjournment to facilitate the receipt of evidence from Mr Barnes, in my view no relevant error has been demonstrated. Her Honour was entitled to conclude that there was no adequate explanation for his non-attendance. In the context of a matter that had been prepared for some time and where a party was legally represented, her Honour was entitled to refuse the adjournment where there was no adequate explanation for Mr Barnes' failure to attend, and no suggestion that any substantive step had been taken to secure his attendance. 4. In relation to so much of his case as concerned Mr Barnes, Mr Filby was offered a proper opportunity to present his case. Further, even if the subsequent explanation set out in Mr Filby's affidavit could be received and considered, for the reasons already stated, that does not affect the analysis concerning Mr Barnes' non-attendance. 5. In relation to the evidence of Mr Jensen, there was prima facie a stronger basis for an adjournment, namely, the assertion as to his ill health. However, the Presiding Magistrate was concerned by the lack of a medical certificate or indeed any information to substantiate the suggestion that he was too ill to attend. Her Honour was simply not prepared to act on the basis asserted from the Bar Table that Mr Jensen was so unwell that he could not attend to give evidence. Her Honour was entitled to adopt that approach. 6. In the circumstances, there was no erroneous refusal to grant an adjournment and no denial of Mr Filby's right to present his case. Although I am doubtful of its relevance, Mr Filby's explanation to this Court concerning the circumstances surrounding Mr Jensen's non-attendance only reinforces that conclusion. 7. Finally, in relation to both witnesses, I note that the Presiding Magistrate did not expressly refer to the potential significance of the evidence that it was anticipated that each of those witnesses would give. In the exercise of a discretion to adjourn proceedings, that was clearly a relevant matter to consider. However I would not infer from the absence of any express reference to that matter in brief ex tempore reasons that it was overlooked. Just prior to the delivery of those reasons Counsel for Mr Filby had addressed her Honour on that very topic. Most likely her Honour approached the application on the assumption that the missing witnesses' evidence was at least of potential significance to Mr Filby's case but considered that, in the absence of any adequate explanation for their non-attendance, and in the case of Mr Jensen, material evidence to support the explanation for their non-attendance, that warranted the refusal of the application for an adjournment. 8. Nevertheless, for the sake of completeness, I would add that the contents of at least Mr Jensen's witness statement were of very little consequence to Mr Filby's defence. An assertion that Mr Neeson was present at a discussion with representatives of a television network said nothing about whether or not Mr Neeson lent money to Mr Filby on the one hand or "invested" it in shares in Cashtime on the other. Further, although it is not necessary to consider it in any detail, Mr Barnes' evidence really did not add much to Mr Filby's case either. 9. In the end result, there is no basis for concluding that Mr Filby was denied a proper opportunity to present his case by reason of the refusal of the Presiding Magistrate to adjourn the proceedings. It follows that I reject Mr Filby's grounds of appeal as set out in his amended summons. Additional Complaint 1. As stated, after Mr Filby terminated his Counsel's retainer he was given an extensive opportunity to address the Court concerning his appeal. On a number of occasions, the Court drew his attention to the necessity to focus his submissions on the identification of some error on the part of the Presiding Magistrate in deciding his case. 2. During the course of his response, a number of arguable complaints emerged. The first was the statement that, "none of the witnesses had been told to turn up by me or Counsel". I have already outlined the evidence, such as it is, concerning what Mr Barnes and Mr Jensen were told about the hearing date. In any event, this contention goes nowhere. It was the responsibility of Mr Filby, aided by his legal representatives, to advise his witnesses of the date they were required and, if necessary, to take steps to secure their attendance. It was certainly not the responsibility of the Local Court to secure their attendance. No doubt, in considering an application for an adjournment, a court is entitled to consider whether a genuine mistake was made by a litigant in failing to advise their witnesses of the date the matter was fixed, or take steps to secure their attendance. However, there is no reason to conclude that her Honour proceeded on any misapprehension in that respect. 3. A further complaint made by Mr Filby was that he provided evidence in support of his case to his Counsel that was not produced to the Local Court. This was part of a larger theme of the submissions made by Mr Filby that concern the alleged failings of his Counsel. It should be made clear that it is not the function of this Court on this appeal to resolve such complaints. Nothing in this judgment is meant to be any reflection one way or another upon the conduct of his Counsel. 4. The short answer to the submission is that parties are bound by the manner in which their Counsel conducts proceedings. It does not demonstrate error on the part of the Local Court to point to evidence that may have been given to a party's legal representative but which was not produced to the Court. Such a contention does not give rise to any question of law arising out of the Local Court's judgment. 5. A third matter raised by Mr Filby was that, on the day of the hearing in the Local Court, he had difficulty in understanding questions, bearing in mind his medical condition and the stress he was under. The short answer to that is that these are questions of fact for the Local Court to consider. Members of the Local Court hear oral evidence from witnesses of different backgrounds every day of the year. Magistrates are experienced in taking into account the difficulties witnesses face in what can be the intimidating atmosphere of a courtroom. There is no reason to believe that in this case her Honour did not bring an appropriate and sympathetic consideration to the position of those witnesses who gave evidence before her, including Mr Filby. 6. The most significant and repeated claim of Mr Filby was that her Honour erred in finding that he had lied. I have already set out her Honour's findings. A finding that a witness is a liar is a severe one. It is not to be made lightly. Mr Filby took me in detail through the document sent by Ms Souter to him and his statutory declaration. The essence of his submission was that at the time he executed the statutory declaration he did not understand that it would make him liable to repay the amounts that had been advanced by Mr Neeson. Instead, he said that he only intended that document to have tax consequences and, in particular, only understood that they might secure a write-off or deduction in respect of Mr Neeson's personal tax. Mr Filby emphasised that he thought he was only doing Mr Neeson a favour and that he did not intend to acknowledge any personal liability to Mr Neeson but instead was only assisting him with his tax affairs. There is much that can be said about this explanation, but ultimately it is not one for this Court to assess. 7. All of Mr Filby's complaints resolve to an attack on what I have already indicated was quintessentially a finding of fact exclusively for the Presiding Magistrate to make. It was for her Honour to decide whether or not Mr Filby's explanation for executing the statutory declaration was to be accepted or not. It was for her Honour to decide whether the statutory declaration executed by Mr Filby reflected the true legal position. Her Honour rejected Mr Filby's evidence and did so emphatically. Her Honour based her finding of liability on the clear terms of the statutory declaration. That was a finding of fact for her Honour and it was clearly open. No question of law, or even of mixed law and fact, arises from this complaint of Mr Filby. Conclusion 1. It follows from what I have said that Mr Filby's appeal will be dismissed. Accordingly, the Court orders that Mr Filby's amended summons be dismissed. [Parties addressed as to costs.] Costs 1. The Executors seek their costs of the proceedings and seek their costs from 1 December 2015 on an indemnity basis. On that date a letter was sent to Mr Filby following the first adjournment of these proceedings. The letter contended that his revised complaint that the denial of an adjournment to him amounted to a denial of procedural fairness was effectively hopeless and the appeal was doomed to fail. The letter offered to consent to the withdrawal of the appeal with no order as to costs, while leaving the costs order made by the Local Court in place. The letter stated that if that offer were not taken up, then the letter would be used in support of an application for indemnity costs from the date of the letter. The offer remained open for 14 days. It clearly was not taken up. 2. Mr Filby did his best to address the circumstances surrounding his receipt of the letter. It is clear it was received by him around that time and that he was legally represented at that point. 3. Given the history of the matter and particularly the weakness of the points that were agitated on the appeal, the offer being made by that letter amounted to a significant compromise of the Executors' position. By 1 December 2015 there had been significant costs incurred by the Executors, but nevertheless they were prepared to withdraw from the appeal with no order as to costs. 4. In those circumstances the discretion to award indemnity costs is enlivened and, in my view, should be exercised. 5. Accordingly, the Court orders that the plaintiff pay the defendant's costs of these proceedings up to 1 December 2015 on an ordinary basis, and on an indemnity basis thereafter. ********** 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: 09 March 2016