Arabzadeh v Wasim

[2018] TASSC 30

[2018] TASSC 30

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Arabzadeh v Wasim [2018] TASSC 30

PARTIES:  ARABZADEH, Khaleddin
  v
  WASIM, Mohammad

FILE NO:  276/2018
DELIVERED ON:  28 June 2018
DELIVERED AT:  Hobart
HEARING DATE:  25 June 2018
JUDGMENT OF:  Pearce J

CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Court supervision – Adjournment – Minor civil claim – Decision to refuse adjournment amounted to denial of natural justice.

Magistrates Court (Civil Division) Act1992 (Tas), ss 28(2), 31AB.
Aust Digest Procedure [1101]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  In person

Judgment Number:  [2018] TASSC 30
Number of paragraphs:  13

Serial No 30/2018

File No 276/2018

KHALEDDIN ARABZADEH v MOHAMMAD WASIM

REASONS FOR JUDGMENT  PEARCE J

28 June 2018

1. This appeal concerns the private sale of a second hand car by the appellant to the respondent for $5,000. The respondent, Mohammad Wasim, brought a claim against the appellant, Khaleddin Arabzadeh, in the Magistrates Court (Civil Division) claiming return of the purchase price. The claim was heard by the Deputy Chief Magistrate, Mr M Daly, on 12 December 2017. The hearing was conducted in the absence of the appellant. The learned magistrate ordered judgment for the respondent against the appellant in the sum of $5,000, together with costs and fees amounting to $404.04. On 29 January 2018, the appellant filed a notice of appeal in this Court on the ground that the "learned magistrate erred in law in allowing the claim to proceed on the trial of the action in my absence without adjourning the said trial". Because the notice of appeal was filed outside the time limited for appeals by the Supreme Court Rules 2000, r 684, an application for an extension of time has also been made. The application to extend time and the appeal were heard together. The respondent has made an application that the appeal be dismissed. That application is unnecessary. The appellant and the respondent each filed affidavits concerning the application to extend time. The content of each affidavit is also relevant to the appeal. The background to the claim emerges from those documents and from the material on the file from the Magistrates Court.

2. In December 2015 the respondent saw the appellant's car advertised on Gumtree. The advertisement said that the car was a 2008 Toyota Orion, which "had never been off the road or caused any trouble". After some negotiation, the respondent agreed to purchase the car for $5,000, transferred the money into the appellant's bank account and took the car on 14 December 2015. The car suffered a mechanical failure by overheating almost straight away. The respondent took the car to a mechanic who told him it would cost $2,500 to fix, that the car had "been in on 15 November 2015 with a similar undiagnosed problem as the heads need to be tested to confirm the problem", and that before the sale he had warned the appellant that it should not be driven. The appellant refused to pay for the cost of repairs or refund the respondent's money. On 20 November 2016 the respondent filed a claim in the Magistrates Court (Civil Division), claiming refund of the price of the car. The written claim was served on Mr Arabzadeh by mail on 11 February 2016. He did not file a defence, and a default judgment was entered against him for $5,000 plus court costs on 4 April 2016.

3. On 11 July 2016 the appellant applied to set aside the default judgment and, on 16 August 2016, an order was made setting it aside. The court file notes the magistrate's order that the judgment was set aside as "irregular". The appellant filed an affidavit in support of the application, the substance of which was that he simply denied the claim, and did not understand the procedures for defending it. Some procedural directions were made by the magistrate, which led to the exchange of further documents and particulars of the claim and the defence. In substance, the appellant's defence was that he invited the respondent, who had test driven the car more than once, to have the car mechanically checked prior to purchase but he did not do so, that he provided no warranty on a private sale and the car was in good working condition when it was sold.  

4. At a listing conference conducted on 13 October 2017, at which both parties were present, the claim was set down for hearing on 12 December 2017. The appellant told the magistrate at the listing conference that he had some forthcoming travel plans, but was not certain of the dates. Nothing else was said about the proposed travel until 4 December 2017 when, at 4.12am, the appellant sent an email to the Magistrates Court in the following terms:

   "My name is khaleddin Arabzadeh i am the defendant on this matter I have a court date on the 12 December but unfortunately I be travelling overseas on 04/12/2017 overseas for family matter, as I have informed the judge at the last hearing I be travelling overseas but wasn't really sure of the exact date. Family member have booked the tickets without informing me.

   I would like the matter be adjourned if possible as I wont be able to attend the hearing.

   Please get back to me on [email address]."

5. The appellant's email was accompanied by a travel itinerary which showed the appellant was booked on a flight from Melbourne to Tehran, via Singapore and Dubai, departing at 6.45pm on Monday, 4 December 2017. The request for an adjournment was referred to the magistrate who instructed a member of the court staff that the appellant be informed that "the hearing of this matter will remain listed on Tuesday 12 December 2017 and be dealt with in your absence". An email to that effect was sent to the appellant's email address at 5.18pm on 4 December 2017, at which time it is likely that the appellant had already commenced to travel.

6. In accordance with the magistrate's indication, the hearing proceeded on 12 December 2017. Judgment was ordered in favour of the respondent. A copy of the judgment was sent to the appellant by email. He immediately enquired about how he could dispute it. He returned to Australia on 2 January 2018 and contacted a lawyer on the same day. After receiving advice, an appeal was lodged on 29 January 2018. An application for an extension of time to appeal, with an affidavit in support of the application, was filed on 31 January 2018.

7. The appellant applied for an extension of time promptly. No particular prejudice is asserted by the respondent, although he is unhappy about the prospect of losing the benefit of the judgment and some further delay. Whether an extension of time should be allowed depends on whether the appeal should succeed. If that question is answered in the affirmative then the extension of time should be granted and the appeal allowed. If the question is to be answered in the negative, then the extension of time to appeal should be refused because the appeal is futile.

8. Parties aggrieved by an order of the Magistrates Court may appeal to a judge of the Supreme Court. Different appeal provisions apply to minor civil claims. Section 28(2) provides that a party to a minor civil claim may appeal:

   "(a)on one or more of the following grounds:

   (i)    that the magistrate lacked jurisdiction or exceeded his or her jurisdiction;

   (ii)    that the party was denied natural justice in the course of proceedings; or

   (b)if a judge of the Supreme Court grants leave, on any other ground."

9. On an appeal under s 28(2), the judge may make any orders he or she considers appropriate in the circumstances: s 28(3).

10. This is not a case in which the learned magistrate lacked or exceeded jurisdiction. The ground asserted by the appellant, namely that the magistrate conducted the hearing in his absence, falls within the provision which allows appeals on the basis of a denial of natural justice. As I observed in Streets v Lucas [2013] TASSC 45 at [26], by reference to Russell v Duke of Norfolk [1949] 1 All ER 109, the content of natural justice varies from case to case depending on factors such as the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject-matter that is being dealt with. When a power conferred by statute is considered, the nature and extent of the obligation to provide procedural fairness depends on and will fluctuate according to the nature of the statutory power, the purpose and requirements of the statute and the interests of the individual: Kioa v West (1985) 159 CLR 550 per Mason J at 584 and Brennan J (as they then were) at 612: Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22, 206 CLR 57, per Kirby J at [115]. Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be given a reasonable opportunity to answer it. The duty of a decision-maker to ensure that parties be given a reasonable opportunity to present their case does not require that the party takes up that opportunity or takes the best advantage of it: Sullivan v Department of Transport (1978) 20 ALR 323. However, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597 at 611 [40]; Sullivan v Department of Transport per Deane J at 343. Whether in any case the failure or refusal to adjourn a hearing amounts to a denial of procedural fairness will depend upon the particular circumstances of the case.

11. It seems to me that the issue boils down to whether the magistrate's refusal of the appellant's request for an adjournment was so unreasonable that his discretion miscarried. The power to adjourn the hearing is a discretionary one, and his Honour was required to strike a balance between the convenience of the parties and the requirements of justice, the ultimate aim being the attainment of justice between the parties. I do not have a transcript or note of the proceedings before the magistrate, but his Honour's decision to proceed with the hearing in the absence of the appellant was made in advance of the hearing. The exercise of the discretion to refuse the request for an adjournment falls to be reviewed on that basis. There are a number of factors which militated against the grant of an adjournment. The claim had been outstanding since early 2016. The respondent had notice of the hearing date since the listing conference on 13 October 2017. The magistrate was entitled to infer that the appellant had done little or nothing until the very last minute before his departure to determine that he would be unable to attend, had not adequately explained why he could not have found out about his problem earlier, or why different travel arrangements could not have been made and, even when they were not, had not applied for an adjournment until the day of his departure. Before me, the respondent suggested that in light of the limited information given to the magistrate, his Honour was entitled to be sceptical about the genuineness of the appellant's application. Because the amounts claimed in the Magistrates Court did not exceed $5,000 it was a minor civil claim under the Magistrates Court (Civil Division) Act 1992, s 3. It was to be determined in accordance with Div 4 of Pt 5 of that Act. Thus, by s 31AB, the Court was not bound by the rules of evidence, could inform itself on any matter in any manner that it considered appropriate, could conduct the hearing in an inquisitorial manner, and was to conduct the proceeding "with as little formality and technicality, and with as much expedition, as the requirements of this Act, the rules of court and a proper consideration of the issues in dispute permit". Appellate courts are generally slow to interfere with decisions concerning adjournments because of the discretionary nature of the decision. There is a public interest in the expeditious conduct of court business, especially small claims of this nature.

12. However, with the greatest respect to the learned magistrate, I have concluded that his refusal to adjourn the hearing was, in the circumstances, unfair and should not be allowed to stand. I think that there is a strong reason to conclude that injustice has resulted. It is not clear from the material before me whether the claim had been set down for a hearing before, but it had not previously been adjourned on the application of the appellant. The travel itinerary sent with the request for an adjournment had the appearance of legitimacy. If true, it was a powerful reason to adjourn. Had the request for an adjournment been made earlier, it is difficult to see how his Honour could justly have refused it. The appellant was self-represented. There was material on the court file, in the form of documents provided by the parties in the course of the proceedings, for the magistrate to see that the appellant's defence of the claim was at least arguable, both as to liability for the claim and the amount of it. There were genuine issues of fact to be resolved. The appellant's request for an adjournment was made more than a week in advance of the hearing date and there was no reason to conclude that another hearing date could not have been allocated relatively promptly. When the magistrate decided to proceed to hearing in the absence of the appellant, there was no proper basis to conclude that a short further delay would have placed the respondent at any additional disadvantage other than by being kept out of his money if his claim was to ultimately succeed. Nor is there any reason to conclude that disruption to court business or other litigants was such as to warrant, in this case, depriving the appellant of a hearing on the merits. It resulted in a denial of natural justice.

13. For those reasons I have concluded that the extension of time should be granted and the appeal allowed. I order that the magistrate's order of 12 December 2017 giving judgment for the respondent against the appellant is quashed. The claim will be remitted for rehearing before another magistrate. I will hear the parties about any further or consequential orders.