Cherry Media Pty Ltd v Paykel Media Company Pty Ltd - [2007] NSWLC 32

No judgment structure available for this case.

Local Court of New South Wales

CITATION: Cherry Media Pty Ltd v Paykel Media Company Pty Ltd [2007] NSWLC 32

JURISDICTION: Civil

PARTIES: Cherry Media Pty Ltd
Paykel Media Company Pty Ltd

FILE NUMBER: 4938/07

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION:
12/12/2007

MAGISTRATE: Magsitrate B A Lulham

CATCHWORDS: Procedure – what is “claim for damages” in Legal Profession Act Sec 347(2) – consequences of not attaching certificate under Sec 347(3) Legal Profession Act – Power of Magistrate to set aside Order of Assessor – whether finding of no jurisdiction amounts to order or judgment.

LEGISLATION CITED: Uniform Civil Procedures Rule 36.15, Rule 36.1BA, 3B

CASES CITED: Degiorgio v Dunn (No 2) (2005) NSWSC 3
Groth v Audet (2006) NSWCA 48
Cvetkovic & Anor v Parexel International Pty Limited & Anor (2007) NSWSC540
Autodesk Inc v Dyason (No2) 1993 176 CLR 3000
Hunyh v Swanson (1999) NSWSC 72

REPRESENTATION: Plaintiff’s Solicitor: Mr D C Jenkins
Defendant’s Solicitors: Mr B W Gower

ORDERS:

JUDGMENT

1. This matter was before the court to hear the plaintiff’s motion seeking the following orders:

2. The plaintiff pleaded its Statement of Claim seeking recovery of the sum of $7,432.49 as follows:

“The plaintiff relies on the following facts and assertions:

4. By an agreement dated on or about 27 March 2006 the defendant agreed to act as a media transacting agency for the plaintiff.
5. It was a term of the agreement that the defendant would remit to the plaintiff 80% of the commissions received for production and media placement through the agency of the defendant.
6. The plaintiff has invoiced the defendant for money owing pursuant to the agreement for the month of December 2006 in the sum of $13,074.93 inclusive of GST.
7. The defendant has paid $5,652.44 leaving a balance owing of $7,432.49.
8. The plaintiff has demanded but the defendant has failed and refused to pay the amount owing to the plaintiff.”

3. The defendant filed a Defence and the matter came on for hearing before the Assessor in the Small Claims Division of the Court on 24 September 2007. The parties had filed and exchanged statements.

4. The defendant’s solicitor submitted that the plaintiff’s action was a claim for damages and as a certificate pursuant to Section 347 of the Legal Profession Act had not been included in the Statement of Claim it should not have been accepted for filing and the court had no jurisdiction to hear the matter.

5. The Assessor upheld that submission and marked the papers “No Jurisdiction”. He declined to make any order for costs. The plaintiff applicant on the motion seeks to have those orders set aside.

6. Although ultimately I do not think it will be necessary for my decision for me to do so, I propose to make some comments on the hearing of the matter before the Assessor.

Section 347(2)(3) of the Legal Profession Act 2004 (the provision in s 198M of the previous Act was to the same effect) provides as

a claim

for damages

(3) Court documentation on a claim or defence of a claim for damages, which has been lodged for filing, is not to be filed in a court or court registry unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification.”

8. I have previously set out the plaintiff’s pleading at paragraph 2 hereof. I am satisfied the plaintiff’s claim was not “a claim for damages”. The claim could quite easily have been pleaded as a common money count for work done and materials provided. Moreover, I accept the views expressed by his Honour Barrett J. in Degiorgio v Dunn (No 2) (2005) NSWSC at [15]:

“It is thus not an entirely simple matter to decide, from the terms of the enactment itself, what the legislature had in contemplation when it chose to refer, in s. 198M, to “proceedings … taken on a claim for damages”. In the end, however, I do not think that there is any real alternative but to treat as within that specification every case in which an originating process claims what are there designated “damages”, whether or not the nature of the damages is specified. Whether the provision also has regard to claims for compensation or reimbursement which are not labelled “damages” but may be within one of the “loose sense” concepts of damages to which I have referred is not a question that need be addressed here.”

9. The plaintiff’s statement of claim does not seek “damages”. It is clearly a claim for a liquidated sum. I am satisfied that it is not a “claim for damages” and a certificate under s. 347(2) was not required.

If the certificate was required was the Assessor entitled to find that he had no jurisdiction?

10. If a certificate was required I am satisfied that the Assessor was not entitled to find that he had no jurisdiction. He also would not have been entitled to summarily dismiss the matter on that basis. I rely for those findings on the decision of the Court of Appeal in Groth v Audet (2006) NSWCA 48. It will suffice if I set out the head note. The headnote provides as follows;

“ Held, granting leave to appeal and dismissing the appeal with costs:

1. The clear intention of ss 198L and 198M, when read together, is to restrict the commencement of defence of proceedings by a barrister or solicitor where there are not reasonable prospects of success:

2. The consequences of a breach of s198L(2) are clearly intended to fall on the responsible legal practitioner, rather than their client. The section was inserted to regulate the legal profession, and not for the benefit or detriment of parties to litigation:

3. Section 198L of the Legal Profession Act 1987 is not a condition precedent to the commencement of proceedings in the same way as s151C(1) of the Workers Compensation Act 1987 and s108(1) of the Motor Accidents Compensation Act 1999. Section 198L goes only to the conduct of legal practitioners, while the latter provisions are directed to the entitlement of a party (or client) to commence proceedings:

4. A breach of s198L(2) will not invalidate proceedings or render them a nullity and liable to be struck out on that account alone, although proceedings may be struck out if default continues after it has been brought to the attention of the defaulter:

5. (Per Basten JA) A statutory obligation imposed by Parliament in mandatory terms will not necessarily invalidate any act undertaken in breach of that obligation. A court may look to the broader statutory and legal context to determine the consequences of such a breach: [37], Carroll v Mijovich (1991) 25 NSWLR 441 referred to.”

11. I find that the Assessor was not entitled to find no jurisdiction or indeed to dismiss the plaintiff’s claim even if a certificate was required. The decision in Groth requires the judicial officer to provide the party with the opportunity to remedy the default and to dismiss the proceedings only if the breach continues.

12. I should emphasise that the decisions in Degiorgio and Groth were not brought to the attention of the Assessor.

POWER TO SET ASIDE THE ASSESSOR’S ORDER.
Uniform Civil Procedure Act, Rule 36.15

13. Mr Jenkins for the plaintiff submitted that I had power to set aside the Assessor’s orders pursuant to Rule 36.15 which provides as follows:

“A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered or the order was made irregularly illegally or against good faith.”

14. The authorities make clear that the conduct “against good faith” must be conduct of the other party. Mr Jenkins submitted that the order in this matter was obtained against good faith because the plaintiff’s solicitor for the plaintiff did not draw the Assessor’s attention to the decisions in Groth and Degiorgio. He submitted that he was not warned of the application and did not have time to research the matters himself. There is no evidence that the plaintiff’s solicitor was aware of those decisions. I am not satisfied that the plaintiff has been able to prove absence of good faith.

15. Mr Jenkins submitted that the decision of the Assessor made on 24 September 2007 was entered on the 25 September and as the plaintiff’s motion was filed within 14 days of that date he sought to rely on sub-section (3A) of Rule 36.16 which is in the following form:

16. I am not satisfied that sub-rule (3A) gives the court power in the circumstances of this case. As I understand the intent of Rule (3A) the motion to set aside or vary a judgment or order is to be made to the judicial officer who made the judgment or order and that the power is not to be used to give the party a second chance. His Honour Hall J gave a useful summary of the principles involved in an application under r36.16 3A in Cvetkovic & Anor v Parexel International Pty Limited & Anor. (2007) NSWSC 540 as follows:

’53 In summary, the Uniform Civil Procedure Rules that provide power in the Court to vary or set aside judgments or orders confer a discretionary power but one that is to be exercised subject to limitations expressed and the principles discussed below. A central matter is the limitation imposed by the public interest in maintaining the finality of litigation which, in itself, indicates that it is a power to be exercised with caution.

(a) In general terms, the power to re-open to enable a matter that had previously been determined in proceedings should be exercised with great caution. Whilst the High Court in Wentworth v Woollahra Municipal Council (1981-1982) 149 CLR 672 at 684 was dealing with the question of a re-hearing in the High Court, nonetheless, the general principle, that is to say, the need for finality of litigation, is relevant and underpins the proposition that the power to re-open an issue already determined should be exercised with caution.

(b) In relation to judgments or orders which have not been formally entered, the Court retains a power to vary or set aside judgments or orders.

(2001) 111 FCR 434 stated that:-

. A relevant consideration in the exercise of the power is the public interest in maintaining finality of litigation.
. Accordingly, it is a matter for the exercise of judicial discretion, having regard to the appropriate circumstances, as to whether the power in the rules should be exercised.

(d)In Maritime Union of Australia (supra), the following propositions were identified:-

(i) Generally speaking, the discretion to set aside a judgment or order will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.
(ii) The power will only be exercised if there is “some matter calling for review”.
(iii) There may be more or less reluctance to exercise the power, depending on whether there is an avenue of appeal.
(iv) The power will not ordinarily be exercised “to permit a general re-opening”.
(v) It is necessary for the Court to consider whether it has proceeded on a misapprehension as to the facts or the law; what must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law. Misapprehension cannot be attributed solely to neglect or default of the party seeking the re-hearing.
(vi) The power is not to be exercised for the purpose of re-agitating arguments already considered by the Court.
(vii) Nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put.
(viii) It will be relevant whether the decision has been given in ignorance or forgetfulness of some statutory provision or of some critical fact.
(ix) What is at issue is the interests of justice and whether they require a judgment to be set aside.
(x) It will be appropriate to consider whether the review of the contemplated order is necessary so that the orders may deal more adequately with the matter as litigated by the parties before the Court.

While the court has jurisdiction to entertain an application to vacate orders which it has made, at all events before those orders have been perfected by the entry of judgment …, it is a jurisdiction to be exercised cautiously, bearing in mind the public interest in the finality of litigation.”

56 The principles establish that, generally speaking, the power to set aside judgments and orders will not be exercised to permit a general re-opening of the case and furthermore will not be exercised in favour of an applicant who was at fault in failing to raise a matter in issue at an earlier stage.

57 As the judgment in Autodesk Inc v Dyason (No.2) (supra) establishes, a review or rehearing of an issue in an exceptional step, given the public interest in the finality of litigation. It is a step that a court will be reluctant to take unless it has good reason to consider its earlier judgment. Good reason in these terms as noted above may include a misapprehension as to the facts or the law. As the High court emphasised in that case, it is a jurisdiction that must not be exercised for the purpose of re-agitating arguments already considered by the Court. This, I consider, is particularly applicable to the order sought by the plaintiffs to set aside the judgment precluding the amendment to raise estoppel as a cause of action.’

17. I believe it is a very interesting question as to whether, if an application under Rule 36.16.3A had been to the Assessor, such application would have been successful. I do not have to decide that question. I am not satisfied that I have power to set aside the Assessor’s order under Rule 36.16.3A. There is the additional problem discussed below as to whether the Assessor made any “judgment” or “order”.

18. Mr Gower for the defendant submitted that what the plaintiff was attempting to do was to appeal the decision of the Assessor. He submitted that the plaintiff’s only right of appeal is set out in Section 73 of the Local Courts Act 1982 as follows;

“A party to proceedings under this Part who is dissatisfied with the judgment or order of a court sitting in Small Claims Division may appeal to the Supreme Court against the judgment or order but only on the ground of lack of jurisdiction or denial of natural justice.”

19. During submissions I indicated that I was of the view that the decision made by the Assessor to find that he had no jurisdiction was an order of the court. My further research indicates that I was wrong in expressing that view. In Hunyh v Swanson & Anor (1999) NSWSC 72 where the Magistrate had found that he had no jurisdiction but made an order for costs his Honour James J had this to say at [15]:

20. In Hunyh the finding that the no jurisdiction decision was not a judgment or order of the court meant that the appellant was required to proceed in the Supreme Court seeking declarations by way of prerogative relief. The learned Judge in Hunyh concluded his judgment at [69] as follows:

“The magistrate, in my view, wrongly declined jurisdiction. That is a jurisdictional error. There was no suggestion in the argument before me, but that error of that kind in this case is of such a nature as is amenable to relief by orders in lieu of the prerogative writs. I am of the view that the plaintiff is entitled to the declaration in the appropriate terms and the appropriate consequential orders.”

21. It follows from that decision that in this case the plaintiff applicant does not have a right of appeal to the Supreme Court under Section 73(2) but has the right to apply to the Supreme Court for orders in the nature of certiorari and mandamus.

22. The court file indicates that the learned Assessor dealt first with submissions in relation to the late service of a statement and then the submissions relating to the non-filing of the Certificate under S347 of the Legal Profession Act. It is clear that the Assessor did not consider the evidence in the case, but ruled that the court had no jurisdiction because of the failure to file the certificate under S347 of the Legal Profession Act. He then heard argument on the question of costs and decided he had no power to order costs.

23. I am satisfied that in dealing with the matter on that basis the Magistrate was hearing the arguments as an application under Rule 12 of the Local Courts (Civil Procedure) Rules 2005 which is in the following form:

“LCR R12 Applications

24. Mr Jenkins complained in his submissions that the application was made without notice to him depriving him of the opportunity to research the matter. I now consider that there is substantial support for that submission.

25. Whether the Assessor dealt with the matter on the basis of an application under S12 or as a part of the general hearing of the matter has considerable effect on the consequences of his action.

26. If the Assessor dealt with the question of jurisdiction as part of the hearing of the action then I am satisfied for the reasons I have already expressed, that his decision could only be challenged by an application in the nature of certiorari or mandamus to the Supreme Court. I am not satisfied he did so.

27. I am satisfied that the Assessor dealt with the question of jurisdiction on the basis of an application under r12 of the Local Court Civil Procedure Rules. In hearing that application he was dealing with an interlocutory application. He gave his decision. I am satisfied that the plaintiff applicant in this matter could have made a further, and if necessary later application (in the sense of a further motion) before the Assessor seeking that he consider the application again on its merits based on the authorities. There is ample authority that more than one interlocutory application can be made especially in the circumstances of this case when relevant authorities were not brought to the Assessor’s notice.

DECISION

28. I am satisfied however that the motion cannot succeed before me. The motion seeks that I set aside the “Assessor’s orders”. A Magistrate does not have power to set aside an order of an Assessor. As is well recognised the Local Court is a court of statute and can only derive its jurisdiction and power by statute. The plaintiff has not referred me to any section or rule which would give me the power to hear the present application. I am not satisfied Rule 36.16.3A provides such a power. The position in relation to Assessors in the Small Claims Division is different to the position of Registrars of the Court. Rule 49.20 specifically permits an application for a review of a decision of the Registrar to be instituted by the filing of a motion to be heard by a Magistrate of the Court. There is no similar provision in relation to decisions of Assessors and I am satisfied I do not have the power to make the order sought regarding the “Assessor’s order”.

29. It may well be that even if I had the power to set aside an Assessor’s order in this matter, there is, on the authority of Hunyh, no “order” to set aside.

30. For all of the above reasons the motion will be dismissed. The applicant seeks that the matter be transferred to the General Division. In view of my decision not to set aside the Assessor’s orders there is no point in transferring the proceedings.

31. `The case has raised some interesting problems. It seems to me that it may be necessary for consideration to be given for a more formal system for applications before an Assessor under r12. There should be at least some requirement for the applicant to give notice to the respondent of the intention to make the application and the basis of the application. That must be particularly so if the application is made on the day of the hearing of the matter. The notice should be timely and could be made by letter.

32. The Assessor’s “order” in this matter would not prevent the plaintiff from commencing fresh proceedings. Indeed the plaintiff has done so.

33. The plaintiff’s motion has been unsuccessful and the normal rule is that the costs follow the event. However the failure of the defendant’s solicitor to give notice of the intent to make the application was most significant. My preliminary view is that each party should pay its own costs but I will hear from the parties on the question of costs.

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Citations

Cherry Media Pty Ltd v Paykel Media Company Pty Ltd [2007] NSWLC 32

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

1

Degiorgio v Dunn (No 2) [2005] NSWSC 3

George v Rockett [1990] HCA 26

CITATION:	Cherry Media Pty Ltd v Paykel Media Company Pty Ltd [2007] NSWLC 32
JURISDICTION:	Civil
PARTIES:	Cherry Media Pty Ltd Paykel Media Company Pty Ltd
FILE NUMBER:	4938/07
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	12/12/2007
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Procedure – what is “claim for damages” in Legal Profession Act Sec 347(2) – consequences of not attaching certificate under Sec 347(3) Legal Profession Act – Power of Magistrate to set aside Order of Assessor – whether finding of no jurisdiction amounts to order or judgment.
LEGISLATION CITED:	Uniform Civil Procedures Rule 36.15, Rule 36.1BA, 3B
CASES CITED:	Degiorgio v Dunn (No 2) (2005) NSWSC 3 Groth v Audet (2006) NSWCA 48 Cvetkovic & Anor v Parexel International Pty Limited & Anor (2007) NSWSC540 Autodesk Inc v Dyason (No2) 1993 176 CLR 3000 Hunyh v Swanson (1999) NSWSC 72
REPRESENTATION:	Plaintiff’s Solicitor: Mr D C Jenkins Defendant’s Solicitors: Mr B W Gower
ORDERS: