Cohen & Anor v The Christian Brothers (trading as St Edwards Christian College)

[2006] NSWSC 688

CITATION:	Cohen & Anor v The Christian Brothers (trading as St Edwards Christian College) [2006] NSWSC 688
HEARING DATE(S):	4 July 2006
JUDGMENT DATE :	7 July 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The appeal fails. The Summons is dismissed. The Plaintiffs are to pay the costs of the Summons. The Exhibits may be returned.
CATCHWORDS:	Appeal from decision of Local Court - judgment for unpaid School fees in a modest sum - unmeritorious defence and appeal - unjustified allegations of bias - unrealistic allegations of denial of procedural fairness - no error in point of law - need for the limiting of appeals brought to this Court.
PARTIES:	Phillip Cohen (First Plaintiff) Jennifer Cohen (Second Plaintiff) The Christian Brothers (trading as St Edwards Christian College) (Defendant)
FILE NUMBER(S):	SC 14518/05
COUNSEL:	In Person (First Plaintiff) G Young (Defendant)
SOLICITORS:	Not represented (First and Second Plaintiffs) Heidtman & Co Lawyers (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	119234/04
LOWER COURT JUDICIAL OFFICER :	Sweeney LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Friday, 7 July 2006

14518 of 2005 Phillip Cohen & Anor v The Christian Brothers (trading as St Edwards Christian College)

JUDGMENT

1 His Honour: Ben Cohen is the stepson of the Plaintiffs. On 27 January 1999, the Plaintiffs signed an enrolment application for St Edwards Christian College (the “School”). The Defendant conducts the School.

2 The stepson attended the School between 27 January 1999 and the end of 2004 (he progressed from Year 7 to Year 12). During that time, School fees were unpaid.

3 On 22 January 2004, the Defendant commenced proceedings in the Local Court in its Small Claims Division (the “Campbelltown/Gosford claim”). The Defendant claimed School fees in the sum of $7,715.40. The particulars of claim contain inter alia the following:-

“Monies owing for unpaid school fees due by April 2002 by the defendant to the plaintiff’s school being The Christian Brothers, St Edwards Christian College T/as St Edward’s Christian College, full particulars of which have been supplied to the defendant.”

4 The Defendant relied on a Statement of Evidence from Mr Featheston (he was the Defendant’s business manager). It set out a history of the indebtedness of the Plaintiff (up to 16 September 2004). The total was then said to be $12,513.70.

5 Paragraph 6 of the Statement contained the following:-

“On 31 January 2002 a Family Transaction History was prepared by the plaintiff on behalf of the defendant, showing the debit at that stage to be $3,437.50. A copy of this document is annexed hereto and marked “ D ”.”

6 Paragraphs 7 to 12 thereof set out the subsequent history of the indebtedness. In those proceedings, the Plaintiffs maintained the stance that what was said in paragraphs 7 to 12 was not relevant as it fell outside the period of the subject claim.

7 The proceedings were defended. The hearing resulted in a judgment in favour of the Defendant in the sum of $3,467.50 plus interest.

8 On 18 November 2004, the Defendant brought further proceedings in the Local Court in its General Division (the “Downing Centre claim”). School fees in the sum of $10,369.80 were claimed. The particulars of claim contain inter alia the following:-

“Monies owing for unpaid school fees due by From April 2002 by the defendant to the plaintiff’s school being The Christian Brothers t/as St Edward’s Christian College full particulars of which have been supplied to the defendant.”

9 These proceedings were also defended. The original defence put in issue a question of the existence of a Contract to pay the School fees. The proceedings were adjourned to allow the Plaintiffs to file an Amended Defence which raised an additional issue of estoppel.

10 The defended proceedings were heard on 5 September 2005 by Sweeney LCM (as she then was). The hearing took about a day. It resulted in a judgment for the Plaintiffs in the sum of $8,682.00 plus interest.

11 In those proceedings, the Defendant was represented by a Solicitor (Ms Shidiak). Mr Cohen appeared in person and presented a case on behalf of both himself and his wife.

12 At the commencement of the hearing, the Defendant sought to make two amendments to its process. The first amendment was to reduce the amount of the claim to the sum of $8,967.00. This amendment was not opposed by the Plaintiffs. The second amendment was to the particulars of claim so that they then read “monies owing for unpaid School fees due from April 2002 to July 2004”. The Plaintiffs opposed this amendment. The transcript records that the basis of the opposition was that Mr Cohen did not see why the amendment was necessary. Both amendments were allowed by the Magistrate.

13 After inter alia inquiring of Mr Cohen as to the documents he wanted to tender, the Magistrate then dealt with the estoppel defence. The Magistrate received submissions from both sides. She then delivered judgment on the defence (see transcript pp 6 – 9). The effect of that judgment was to reject the estoppel defence.

14 The Magistrate then proceeded to hear the balance of the case. In so doing, she received evidence and heard further submissions.

15 The material included an affidavit from Mr Featherston (which was similar to the statement earlier referred to) and evidence from Mr Cohen. There was no cross-examination of Mr Featherston and no request was made to cross-examine him. A statement from Mr Cohen had been served late (on the morning of the hearing). Ms Shidiak was given a short adjournment to get instructions in relation to that statement. She received instructions to continue with the hearing. The statement was allowed into evidence and Mr Cohen was cross-examined on it.

16 After hearing the submissions, the Magistrate delivered her ultimate judgment (see transcript pp 33 – 38). In that judgment, the Magistrate dealt inter alia with the Contract defence. It was also rejected.

17 On 28 September 2005, the Plaintiffs filed a Summons in this Court. It purports to bring an appeal against the decision of the Magistrate. An appeal as of right lies where there has been error in point of law.

18 The Summons identifies fourteen alleged grounds of appeal. It is unnecessary in these proceedings to set out the grounds of appeal in full and/or address them expressly and individually. However, in due course, I will mention certain of them for the purposes of illustrating the flavour of the appeal. This mention is not intended to be exhaustive.

19 Broadly speaking, the alleged grounds fall into various categories. There are many allegations of denial of procedural fairness or natural justice. There are allegations of bias. There are allegations of error (including a failure to consider the fundamental principles of common law).

20 The hearing took place on 5 June 2006. Again, Mr Cohen appeared in person representing both himself and his wife. The Defendant was represented by Counsel. The appeal occupied much of the day.

21 Before proceeding further, I should observe that Mr Cohen is a very experienced litigant in person. He has been involved in a number of cases in this Court and in appeals in which he has unsuccessfully made allegations of denial of natural justice.

22 In these proceedings the onus rests with the Plaintiffs. They are required to demonstrate not only error in point of law but error that justifies the disturbing of the decision. In my view, that onus has not been discharged.

23 Mr Cohen has taken the Court to many passages in the transcript. I have carefully read the transcript. In my view, a reading of it does not give support to either the allegations of bias or the allegations of denial of natural justice.

24 The impression gained from the transcript was that despite Mr Cohen alleging that the Magistrate had moved the goal posts and cavilling with inter alia her rulings she continued to exhibit patience and gave him a reasonable opportunity to present his case. I will mention certain matters that took place during the hearing. Again, it is not intended to be exhaustive.

25 Both sides were granted indulgences. The Defendant was allowed to inter alia amend its process. The Plaintiffs inter alia were allowed to rely on his late served statement and had matters considered which were not raised in the defence.

26 It seems to me that the Magistrate was firm but even handed with both sides. It may be said that she reprimanded Mr Cohen in respect of the manner in which certain submissions were made by him (see transcript pp 16 – 17). However, she took a similar approach to the solicitor for the Defendant (she was told on occasions not to interrupt Mr Cohen, she was told that she was engaging in repetitious cross-examination and was also told that she could not make submissions not based on evidence).

27 There are too many cases in which unjustified allegations of bias are made. This is another one of them.

28 Procedural fairness is a flexible concept. It can be expected that each case will turn on its own particular circumstances. In this case, I consider the Plaintiffs have failed also to demonstrate denial of procedural fairness.

29 It may be additionally observed that even if a different view had been taken on either of the questions of bias or denial of natural justice no basis has been demonstrated for the disturbing of the decision.

30 A prominent submission made on behalf of the Plaintiffs concerned the matter of the amendment of process by the Defendant. As the decision made on this matter was interlocutory, it can only be challenged with a grant of leave. This is not a case in which leave would be granted to challenge such a decision. It may be added that the second amendment was of little significance and had no potential to cause prejudice to the Plaintiffs. Both sides were given a reasonable opportunity to be heard on the question. The only ground that could be advanced for opposition by the Plaintiffs to the making of that amendment was that Mr Cohen did not see why it was necessary. It may be said in a sense that such a submission accurately presented the situation. It seems that this amendment merely brought about clarification by the deletion of a typographical error.

31 It is necessary to observe that the approach taken by the Plaintiffs to the passages relied on by them in the transcript was unrealistic. The approach may be seen as an attempt to distort and/or magnify that which was of no consequence and at times to present it out of context. This observation may be well illustrated by one matter that was seriously pressed during submissions. Mr Cohen directed the attention of the Court to observations made by the Magistrate recorded on page 20 of the transcript. The Magistrate is there recorded as offering to the Defendant the opportunity of a short adjournment. Mr Cohen complained that no similar offer was made to him and that this was denial of natural justice.

32 This complaint could be regarded as being quite extraordinary. The fact was that he had no need for an offer of a short adjournment at that time. He did not seek any adjournment. The offer was made to the Defendant so as to deal with a problem created by Mr Cohen. It was made to enable the Defendant to get instructions so that the matter of the late service of statement by the Plaintiffs could be addressed. One result of the exercise was to bring about the benefit of an indulgence to the Plaintiffs and so see that statement admitted into evidence.

33 I consider that no error (be it error in point of law or otherwise) has been demonstrated. I shall expressly mention certain matters (again, the mention is not intended to be exhaustive). The Magistrate did not apply an incorrect onus (she correctly observed that the Defendant had the onus of proving its claim on the balance of probabilities). There was ample evidence to support the findings made by the Magistrate. No error of principle was identified. There was little attempt to take the Court to either of the two judgments. The judgment that dealt with the Contract defence was left untouched in submissions. It is difficult to understand how it could be seriously propounded that there was no contract to pay school fees for the many years of tuition.

34 I should also mention one other matter. It was not agitated before the Magistrate and I mention it for completeness only. The judgment in the Campbelltown/Gosford claim may have given rise to an issue estoppel on the question of Contract.

35 The alleged estoppel defence was put on a number of bases. A principal basis was said to be founded on what is referred to the as the Anshun principle. In my view, the alleged defence was misconceived and doomed to failure.

36 It laboured under a severe handicap. The Magistrate did not have before her a copy of whatever judgment was delivered in the Campbelltown/Gosford claim. It was of importance to the Plaintiffs to have that judgment placed before the Magistrate. This was not done. I should add that it was also not before this Court.

37 What was before the Magistrate clearly evidenced that there were two separate claims which did not have to be litigated together. The Campbelltown/Gosford claim related to monies falling due prior to April 2002 and the Downing Centre claim related to monies falling due subsequent to April 2002. I do not consider that inter alia because the evidence before the Court in the Campbelltown/Gosford claim included the whole history of indebtedness or that originally the process therein overstated the totality of the claim was of any significance. The same lack of significance applies to the fact that the evidence adduced in the Downing Centre claim from Mr Featherston was similar.

38 Both before the Magistrate and in this Court, Mr Cohen sought to agitate a question of mathematical error in the amount that was the subject of the judgment given by the Magistrate. Whilst this matter did not fall within the scope of the appeal grounds and was not a matter which could be the subject of an appeal to this Court, it may be observed that no error was ever identified by Mr Cohen. Despite being given more than a reasonable opportunity to both identify and quantify it, he was unable to do so.

39 There were other grounds of appeal that were left untouched during submissions. I should add there were also alleged grounds that were not capable in giving rise to an error in point of law. It is unnecessary to dwell on these matters.

40 I consider that an unmeritorious defence was conducted before the Magistrate. I further consider that an unmeritorious appeal has been brought to and pressed in this Court. It has all concerned an unwillingness to pay a modest sum. The result is that too much valuable Court time has been thrown away to no good purpose. In my view, urgent action should be taken to restrict what may be subject of an appeal this Court. The present system permits these indulgences to the detriment of other litigants.

41 The appeal fails. The Summons is dismissed. The Plaintiffs are to pay the costs of the Summons. The Exhibits may be returned.

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