Bechara v Bates - [2014] NSWSC 1935

Supreme Court

New South Wales

Medium Neutral Citation: Bechara v Bates [2014] NSWSC 1935
Hearing dates: 10 December 2014
Date of orders: 10 December 2014
Decision date: 10 December 2014
Jurisdiction: Common Law
Before: McCallum J
Decision:
Stay granted by Button J on 26 November 2014 of the orders of the Magistrate made 6 November 2014 extended until 4 pm on Monday 15 December 2014.
Order that the plaintiff pay the defendant’s costs of these proceedings including reserved costs and note that as the proceedings have come to a conclusion those costs are now payable.
The summons seeking leave to appeal is dismissed
Legislation Cited: Local Court Act 2007 (NSW), s 40
Uniform Civil Procedure Rules 2005 (NSW), r 49.19
Cases Cited: Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538
Tomko v Palasty (No 2) [2007] NSWCA 369
Category: Procedural and other rulings
Parties: Maria Bechara t/as Bechara & Company (Plaintiff)
Phillip Bates (Defendant)
Representation:
Counsel:
R D McCrudden (Plaintiff)
P Bates (Defendant)
Solicitors:
Bechara & Company Lawyers (Plaintiff)
Bannister Law (Defendant)

File Number(s): 2014/335144
Publication restriction: None

Judgment

HER HONOUR: Before the Court is an application for leave to appeal against the decision of a Magistrate of the Local Court refusing an application for a review of the order of a Registrar of the Court requiring a party to comply with a notice to produce.
The application invokes s 40 of the Local Court Act 2007 (NSW). In accordance with s 40(2)(a) of the Act, leave is required to bring the appeal, since the application relates to an interlocutory judgment or order. The application relates to the whole of the judgment of the Magistrate, which included an order for costs. In respect of that aspect of the Magistrate's decision, leave is also required in accordance with s 40(2)(c) of the Act.
The proceedings were commenced by summons seeking leave to appeal, filed on 13 November 2014. The orders made by the Magistrate included a self-executing order that, if the relevant party failed to comply with the Notice to Produce, the defence was struck out and default judgment could be entered.
A Notice of Motion was filed on the same day seeking a stay of the Magistrate's decision. That stay was subsequently extended up to and including today. In those circumstances the application has come before me as Duty Judge on an urgent basis.
The circumstances in which the application arises are as follows. In the proceedings in the Local Court, a barrister, Mr Philip Bates sues a solicitor, Ms Maria Bechara (trading as Bechara and Company) for allegedly outstanding fees issued by the barrister in his capacity as a barrister acting on her instructions in three separate matters. The amount claimed in Mr Bates' statement of claim is $83,178.12. He asserts that interest continues to accrue on that outstanding amount.
By her defence filed 26 June 2014, Ms Bechara denies that she is liable to Mr Bates for the money claimed by him in the relief sought.…

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 Bechara v Bates

Details

AGLC: Bechara v Bates [2014] NSWSC 1935
Case: [2014] NSWSC 1935
Decision Date: 10 December 2014

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Maria Bechara, trading as Bechara & Company, filed an application against Phillip Bates seeking leave to appeal the decision of a Magistrate from the Local Court. The Magistrate had refused Bechara's application for a review of an order made by a Registrar that required Bechara to comply with a Notice to Produce. The application for leave to appeal was brought under section 40 of the Local Court Act 2007 (NSW). The legal issues in this case revolve around the grounds of appeal, including whether the Magistrate failed to consider the Practice Note and the Uniform Civil Procedure Rules, whether procedural fairness was denied due to the absence of evidence from Bechara, and whether the Magistrate made orders outside his jurisdiction by allowing Bates to issue a Notice to Produce.

The court determined that the Magistrate's decision should be upheld and refused leave to appeal. The court found that the Magistrate's decision was based on a proper interpretation of the Practice Note and the relevant rules. The court concluded that the circumstances of the case were exceptional, and it was open to the Registrar to consider the allegations made by Bates, which were not commonly seen in civil litigation. Additionally, the court rejected the contention that procedural fairness was denied due to the absence of an affidavit, as there was no suggestion that Bechara was otherwise denied an opportunity to present evidence. The court also found that the requirement of a Practice Note did not fetter the Magistrate's discretion on costs, and therefore, the Magistrate had the authority to make the orders in question.

As a result, the summons seeking leave to appeal was dismissed, and the orders of the Magistrate were upheld. Bechara was ordered to pay Bates' costs of the proceedings, including reserved costs, as the proceedings had come to a conclusion.

Orders