Cullen v Whalan

[2024] NSWDC 367

District Court

New South Wales

Medium Neutral Citation:

Cullen v Whalan [2024] NSWDC 367

Hearing dates:

7 August 2024

Date of orders:

22 August 2024

Decision date:

22 August 2024

Jurisdiction:

Civil

Before:

Catsanos SC DCJ

Decision:

(1) The appeal is dismissed.

(2) The appellants are to pay the respondents’ costs

Catchwords:

APPEAL – Appeal from Small Claims Division of the Local Court pursuant to s 39(2) Local Court Act 2007 (NSW) – Whether denial of procedural fairness – Appeal dismissed with costs

Legislation Cited:

Local Court Act 2007 (NSW)

Cases Cited:

Adamson v Ede [2009] NSWCA 379

CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447; (2021) 390 ALR 1

Day v SAS Trustee Corporation [2021] NSWCA 71

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295

Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] FCAFC 116; (2023) 298 FCR 516

Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Category:

Principal judgment

Parties:

Patrick Cullen (appellant)
Patricia Cullen (appellant)
John Whalan (respondent)
Tracey Whalan (respondent)

Representation:

Counsel:
E Vuu (appellants)
Coombes (respondents)

Solicitors:
McGirr & Associates (appellants)
Higgins Lawyers (respondents)

File Number(s):

2024/00116088

Judgment

Background

1. By summons filed on 27 March 2024 the appellants, Patrick and Patricia Cullen (the appellants/the Cullens) appeal from the decision of Magistrate Pearce delivered in the Local Court at Lithgow on 28 February 2024.

2. In the Local Court proceedings, the appellants were the defendants in a claim brought by the respondents to this appeal, John and Tracey Whalan (the respondents/the Whalans), seeking to recover the sum of $19,635.

3. The Whalans succeeded in their claim before the learned Magistrate who, in a judgment dated 28 February 2024, ordered the Cullens to pay the amount claimed, plus interest and costs.

4. This appeal is brought pursuant to s 39(2) of the Local Court Act 2007 which entitles a party to proceedings before the Local Court, sitting in its Small Claims Division, who is dissatisfied with a judgment or order of that Court to appeal to the District Court. That appeal is as of right and is limited to the grounds of lack of jurisdiction or denial of procedural fairness.

5. Pursuant to s 39(1) of the LocalCourt Act, an appeal from the General Division of the Local Court lies to the Supreme Court, but only on a question of law.

6. Despite some suggestion in the appellants’ submissions that the matter may have been determined in the General Division of the Local Court, the parties agreed before me that it was determined…