A and P Parkes Constructions v Brad Horn - [2001] NSWSC 608

CITATION: A & P Parkes Constructions v Brad Horn [2001] NSWSC 608

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 11447/01

HEARING DATE(S): 20/6/01

JUDGMENT DATE:
20 June 2001

PARTIES :

A & P Parkes Constructions pty Limited v Brad Horn T/as Brad Horn Concreting

JUDGMENT OF: O'Keefe J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 149/00 (Toronto)

LOWER COURT
JUDICIAL OFFICER : Magistrate C A Elliott

COUNSEL : Mr S Ioannou - For plaintiff
Mr M Pesman - For defendant

SOLICITORS:
For plaintiff:
Macedone Christie Willis
Jannali NSW
For defendant:
Ross Fiddes Solicitors
New Lambton NSW

CATCHWORDS: Local court - Ambit of appeal from local court (civil) - Refusal of adjournment - Withdrawal of legal representative - Natural justice - Procedural fairness - Failure of party to comply with directions

CASES CITED: Pace v Read [2000]NSWSC 823, 18 Auugst 2000 (unreported)
Kojima v Australian Chinese Newspapers [2000] NSWSC 1153; 7 December 2000 (unreported)
House v The King (1936) 55 CLR 499
Connelly v Department of Local Government & Ors (1985) 11 IR 362
Queensland v J L Holdings Pty Ltd (1996-97) 189 CLR 146

DECISION: Summons dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
SYDNEY
COMMON LAW DIVISION

CORAM: O'KEEFE J

Wednesday, 20 June 2001

JUDGMENT

1 HIS HONOUR: This is an appeal by way of summons against a decision of a Magistrate sitting in the Local Court of Toronto in which he gave judgment for $17,392.04 in favour of the plaintiff in the action before him.

2 That action had been instituted by Bradhorn, trading as Bradhorn Concreting and was against A & P Parkes Constructions Pty Ltd. The amount of the award was made up of a claim of $10,137.50, court costs of $345, professional costs of $3767.75, witnesses' expenses of $1000 and interest of $2141.79.

3 The judgement in favour of the plaintiff in that matter was as a result of a hearing at which the defendant in those proceedings was not represented. That arose in circumstances in which on the day of the hearing the agent for the solicitor for the defendant sought an adjournment. That adjournment was refused. As a consequence of that refusal the agent withdrew from the proceedings before the Magistrate, who then heard the matter and entered the judgment to which I have referred.

4 In the summons presently before the court there are nine grounds of appeal. However the case really involves consideration as to whether or not in refusing the adjournment the Magistrate denied the defendant in the proceedings before him natural justice. It is common ground between the parties before this court that if the Magistrate relevantly erred in refusing the adjournment then the judgment cannot stand and the matter would have to be remitted to the Local Court. If, however, the Magistrate did not relevantly err in refusing the adjournment, then his decision in relation to the entry of judgment should stand.

5 The claim by Bradhorn arises out of work…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 608
Decision Date: 20 June 2001

CaseChat Overview and Summary

The matter involved a dispute between A and P Parkes Constructions and Brad Horn, where the plaintiff sought an appeal from the Local Court regarding the refusal of an adjournment and the withdrawal of legal representation. The Local Court had dismissed the plaintiff's appeal and also found that the plaintiff had failed to comply with the directions. The plaintiff argued that the court's refusal of an adjournment and its decision to allow the withdrawal of legal representation was a breach of natural justice and procedural fairness. The plaintiff further contended that the Local Court had erred in finding that it had failed to comply with the directions.

The key legal issues before the court were whether the Local Court's refusal of an adjournment and its decision to allow the withdrawal of legal representation constituted a breach of natural justice and procedural fairness, and whether the Local Court had correctly found that the plaintiff had failed to comply with the directions. The court needed to consider the principles of natural justice and procedural fairness, and whether the Local Court had acted within its jurisdiction in making the decisions in question.

The court held that the Local Court's refusal of an adjournment and its decision to allow the withdrawal of legal representation did not constitute a breach of natural justice and procedural fairness. The court found that the Local Court had acted within its jurisdiction in making these decisions, and that the plaintiff had failed to comply with the directions. The court further held that the plaintiff's argument that the Local Court had erred in finding that it had failed to comply with the directions was without merit. The court concluded that the Local Court's decision was correct and that the appeal should be dismissed.

The court dismissed the appeal and affirmed the decision of the Local Court. The court found that the Local Court had not erred in refusing the adjournment or in allowing the withdrawal of legal representation, and that the plaintiff had failed to comply with the directions. The court further found that the plaintiff's argument that the Local Court had erred in finding that it had failed to comply with the directions was without merit. The appeal was dismissed with costs.

Orders