Balois v March
[2011] NSWDC 192
•06 December 2011
District Court
New South Wales
Medium Neutral Citation: Balois v March [2011] NSWDC 192 Hearing dates: 06/12/2011 Decision date: 06 December 2011 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.The summons filed by the appellant on 31 August 2011 is dismissed;
2.The orders made by the Small Claims Assessor in the Local Court on 24 June 2011 are confirmed;
3.The appellant is to pay the costs of the respondent to the dismissed summons;
4.The exhibits may be returned;
5.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: AMINISTRATIVE LAW - appeal from decision of Small Claims Assessor in Local Court - whether appellant has established a denial of procedural fairness Legislation Cited: Local Court Act 1982, s 39(2) Category: Principal judgment Parties: Evalita Balois (Appellant)
Judy March (Respondent)Representation: (Appellant in person)
(Respondent in person)
File Number(s): 2011/280540 (Wollongong) Decision under appeal
- Jurisdiction:
- 9109
- Citation:
- March v Balois
- Date of Decision:
- 2011-06-24 00:00:00
- Before:
- Ms D Harvey, Small Claims Assessor
- File Number(s):
- 2011/145675 (Albion Park)
Judgment
Facts
On 24 June 2011, Local Court Small Claims Assessor Harvey entered an award of damages in favour of the respondent defendant in these proceedings, Judy March, against the applicant plaintiff in these proceedings, Evalita Balois, in the sum of $900 plus assessed court costs of $118, making a total judgment amount of $1018. The basis of the award was a breach of contract in respect of loan monies that remained unpaid. That award was entered after the Assessor heard disputed factual evidence and argument concerning the underlying transaction.
Ms Balois was dissatisfied with the award entered in favour of Ms March and therefore filed a summons by way of appeal to this court seeking orders that the decision in the Local Court be set aside, and that the proceedings be remitted to the Local Court for re-assessment, together with ancillary orders for costs. The only ground of appeal that the appellant could rely upon in this appeal was a claimed denial of procedural fairness.
There was no typed transcript of the proceedings in the Local Court, however the applicant plaintiff tendered a tape recording of the proceedings: Exhibit "A". I was able to listen to the recording of the proceedings from the opening of the proceedings, including the oral evidence given, through to the adjudication by the Assessor. It was agreed that the hearing of the appeal would proceed on the basis of the material I was able to hear on the tape, as well as from the documents comprising the court file.
It was plain from the tape that the Small Claims Assessor had properly explained the nature of the proceedings to the parties, who were self represented on that occasion, as was the case on the appeal. The Assessor correctly advised the parties on the question of burden of proof of factual matters. It is also plain from the tape that the parties had been afforded the opportunity to adduce evidence and to address arguments on the disputed matters, and on the merits of their respective cases. The parties then completed their submissions, at which point an adjudication was made, by which the proceedings were finalised in favour of the respondent defendant Ms March, who was the plaintiff in the Local Court proceedings.
An appeal from the Local Court Small Claims Division to this court is governed by s 39(2) of the Local Court Act 1982, which provides that such an appeal is limited to the grounds of either a lack of jurisdiction, or a denial of procedural fairness.
In this appeal there is no suggestion that the Local Court lacked jurisdiction for the hearing of the claim. The appeal is therefore necessarily limited to the ground of a claimed denial of procedural fairness.
The case put forward by Ms Balois was that at the time of the hearing before the Assessor, she did not have sufficient time to read the statement of Ms March, and as a result, there was procedural unfairness to her. I do not accept that claim because Ms Balois acknowledges that she was given some 15 minutes in which to read the statement in question, and she acknowledged that she could satisfactorily read English and she could understand what she had read. She also agreed that she had been asked whether she was ready to proceed and had said she was ready. She said she did not tell the Assessor she had insufficient time to read the statement, as she just wanted the case to be over.
In my view, on that evidence, the appellant has failed to establish that she had been denied procedural fairness at the hearing of the proceedings in the Small Claims Division of the Local Court. She had the opportunity to call evidence and make her arguments. The proceedings were concluded by the Assessor preferring the evidence called by the respondent, as was open to the Assessor.
In those circumstances, it cannot reasonably be said that the appellant plaintiff in any way was denied procedural fairness. Accordingly, I therefore consider that the summons should be dismissed and the orders made in the Small Claims Division of the Local Court should be confirmed.
I therefore make the following orders:
(a) The summons filed by the appellant on 31 August 2011 is dismissed ;
(b) The orders made by the Small Claims Assessor in the Local Court on 24 June 2011 are confirmed;
(c) The appellant is to pay the costs of the respondent to the dismissed summons;
(d) The exhibits may be returned;
(e) Liberty to apply on 7 days notice if further orders are required.
Decision last updated: 07 December 2011
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