Baring v Russell Edwards Design Services Pty Ltd - [2008] NSWCA 58

New South Wales

Court of Appeal

CITATION: BARING v RUSSELL EDWARDS DESIGN SERVICES PTY LTD [2008] NSWCA 58

HEARING DATE(S): 1 February 2008

JUDGMENT DATE:
9 April 2008

JUDGMENT OF: Beazley JA at 1; Basten JA at 2; Mathews AJA at 31

DECISION: (1) Dismiss the application for leave to appeal from the judgment of Harrison J delivered on 2 March 2007 in the Common Law Division.
(2) Dismiss the application for leave to cross-appeal from the judgment of Harrison J dated 8 March 2007 in the Common Law Division.
(3) Grant the defendants in the Common Law Division a certificate under the Suitors’ Fund Act 1951 (NSW) subject, in the case of the second defendant, to it not being disqualified pursuant to s 6(7) of that Act.
(4) Make no order as to the costs of the parties in this Court.

CATCHWORDS: APPEAL – appeal from Local Court to Supreme Court – Local Courts Act 1982 (NSW) ss 73, 74 – relief where determination unfair to one party – need for remittal – discretionary considerations - APPEAL – from judgment in Division – application for leave to appeal – refusal on discretionary grounds – likely costs disproportionate to amount in issue - COSTS – costs follow the event – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 – exercise of discretion to refuse to award costs - PROCEDURAL FAIRNESS – breach by Magistrate – adverse findings based on inferences not put to witness – power of Court to substitute judgment

LEGISLATION CITED: Courts Legislation Amendment Act 2003 (NSW), Schedule 6 [3]
Local Courts Act 1982, ss 73, 74, 75
Local Courts (Civil Claims) Act 1970 (NSW), s 12
Suitors’ Fund Act 1951 (NSW), s 6
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

CATEGORY: Principal judgment

CASES CITED: Hadid v Redpath [2001] NSWCA 416
Mastronardi v State of New South Wales [2007] NSWCA 54

PARTIES: Anne Crerar Baring (First Appellant and First Cross-Opponent)
Crerar Baring Interiors Pty Ltd (Second Appellant and Second Cross-Opponent)
Russell Edwards Design Services Pty Ltd (Respondent and Cross-Appellant)

FILE NUMBER(S): CA 40165/07

COUNSEL: Mr P Beazley, Solicitor (Appellants and Cross-Opponents)
D Ash (Respondent and Cross-Appellant)

SOLICITORS: Beazley Singleton Lawyers (Appellants and Cross-Opponents)
Sally Nash & Co Lawyers (Respondent and Cross-Appellant)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 14911/05

LOWER COURT JUDICIAL OFFICER: Harrison J

LOWER COURT DATE OF DECISION: 2 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Russell Edwards Design Services Pty Ltd v Baring [2007] NSWSC 140

CA 40165/07
SC 14911/05

BEAZLEY JA
BASTEN JA
MATHEWS AJA
9 April 2008

Anne Crerar BARING v RUSSELL EDWARDS DESIGN SERVICES PTY LTD

Judgment

1 BEAZLEY JA: I agree with Basten JA.

2 BASTEN JA: This matter commenced in a Local Court before Magistrate Lulham, in substance as a claim by the respondent for moneys owing to it pursuant to an contract for services entered into with the present applicant (Ms Baring) and a company operated by her known as Crerar Baring…

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.

Continue reading Baring v Russell Edwards Design Services Pty Ltd

Details

AGLC: Baring v Russell Edwards Design Services Pty Ltd [2008] NSWCA 58
Case: [2008] NSWCA 58
Decision Date: 9 April 2008

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Local Court to the Supreme Court of New South Wales. The dispute arose from proceedings in the Local Court where the Magistrate made adverse findings against the plaintiff, Mr Baring, based on inferences that had not been put to him during his evidence. The plaintiff sought to appeal these findings.

The primary legal issue before the Supreme Court was whether the Magistrate’s conduct constituted a breach of procedural fairness, thereby vitiating the judgment. Relatedly, the Court considered its power to substitute its own judgment for that of the Local Court, or alternatively, whether the matter should be remitted back to the Local Court for a new hearing. The Court also had to determine whether to grant leave to appeal from the judgment of Harrison J, considering factors such as the likely costs being disproportionate to the amount in issue.

The Court found that the Magistrate had indeed breached procedural fairness by making adverse findings without affording the plaintiff an opportunity to respond to the inferences relied upon. Applying principles of procedural fairness, the Court determined that the judgment could not stand. However, rather than substituting its own judgment, the Court concluded that the matter should be remitted to the Local Court for a rehearing. The Court also addressed the applications for leave to appeal and cross-appeal, ultimately dismissing them on discretionary grounds, particularly in light of the disproportionate costs involved.

The Court made no order as to the costs of the parties in the Court of Appeal, but granted the defendants a certificate under the Suitors' Fund Act 1951 (NSW), subject to certain conditions.

Orders

Orders of the court

(1) Dismiss the application for leave to appeal from the judgment of Harrison J delivered on 2 March 2007 in the Common Law Division. (2) Dismiss the application for leave to cross-appeal from the judgment of Harrison J dated 8 March 2007 in the Common Law Division. (3) Grant the defendants in the Common Law Division a certificate under the Suitors' Fund Act 1951 (NSW) subject, in the case of the second defendant, to it not being disqualified pursuant to s 6(7) of that Act. (4) Make no order as to the costs of the parties in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BARING v RUSSELL EDWARDS DESIGN SERVICES PTY LTD [2008] NSWCA 58
HEARING DATE(S):	1 February 2008
JUDGMENT DATE:	9 April 2008
JUDGMENT OF:	Beazley JA at 1; Basten JA at 2; Mathews AJA at 31
DECISION:	(1) Dismiss the application for leave to appeal from the judgment of Harrison J delivered on 2 March 2007 in the Common Law Division. (2) Dismiss the application for leave to cross-appeal from the judgment of Harrison J dated 8 March 2007 in the Common Law Division. (3) Grant the defendants in the Common Law Division a certificate under the Suitors’ Fund Act 1951 (NSW) subject, in the case of the second defendant, to it not being disqualified pursuant to s 6(7) of that Act. (4) Make no order as to the costs of the parties in this Court.
CATCHWORDS:	APPEAL – appeal from Local Court to Supreme Court – Local Courts Act 1982 (NSW) ss 73, 74 – relief where determination unfair to one party – need for remittal – discretionary considerations - APPEAL – from judgment in Division – application for leave to appeal – refusal on discretionary grounds – likely costs disproportionate to amount in issue - COSTS – costs follow the event – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 – exercise of discretion to refuse to award costs - PROCEDURAL FAIRNESS – breach by Magistrate – adverse findings based on inferences not put to witness – power of Court to substitute judgment
LEGISLATION CITED:	Courts Legislation Amendment Act 2003 (NSW), Schedule 6 [3] Local Courts Act 1982, ss 73, 74, 75 Local Courts (Civil Claims) Act 1970 (NSW), s 12 Suitors’ Fund Act 1951 (NSW), s 6 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
CATEGORY:	Principal judgment
CASES CITED:	Hadid v Redpath [2001] NSWCA 416 Mastronardi v State of New South Wales [2007] NSWCA 54
PARTIES:	Anne Crerar Baring (First Appellant and First Cross-Opponent) Crerar Baring Interiors Pty Ltd (Second Appellant and Second Cross-Opponent) Russell Edwards Design Services Pty Ltd (Respondent and Cross-Appellant)
FILE NUMBER(S):	CA 40165/07
COUNSEL:	Mr P Beazley, Solicitor (Appellants and Cross-Opponents) D Ash (Respondent and Cross-Appellant)
SOLICITORS:	Beazley Singleton Lawyers (Appellants and Cross-Opponents) Sally Nash & Co Lawyers (Respondent and Cross-Appellant)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 14911/05
LOWER COURT JUDICIAL OFFICER:	Harrison J
LOWER COURT DATE OF DECISION:	2 March 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Russell Edwards Design Services Pty Ltd v Baring [2007] NSWSC 140