Cuomo v Nesci (trading as Nescis Lawyers)

[2006] NSWSC 620

CITATION:	Cuomo v Nesci (trading as Nescis Lawyers) [2006] NSWSC 620
HEARING DATE(S):	20 June 2006
JUDGMENT DATE :	30 June 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The proceedings are dismissed. The Plaintiff is to pay the costs of the proceedings.
CATCHWORDS:	Plaintiff is a litigant in person who was a defendant to a claim for legal costs in the order of $1,000 in the Small Claims Division - his defence was that the fees were excessive - he did not appear at the hearing allegedly because of ill health - judgment entered in his absence - unsuccessful application to set aside judgment - appeal brought to this Court without leave and out of time on the basis of denial of natural justice alleging inter alia that he was not allowed to present his case.
CASES CITED:	Carr v Finance Corp of Australia Ltd (No 1) 147 CLR 246
PARTIES:	Gino Cuomo (Plainitff) Bruno Nesci (t/as Nescis Lawyers) Defendant
FILE NUMBER(S):	SC 12895/06
COUNSEL:	In Person (Plaintiff) T Saunders (Defendant)
SOLICITORS:	Not represented (Plaintiff) Nescis Lawyers (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	13079/04
LOWER COURT JUDICIAL OFFICER :	Maloney LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Friday, 30 June 2006

12895/06 Gino Cuomo v Bruno Nesci (t/as Nescis Lawyers)

JUDGMENT

1 His Honour: The Defendant is a solicitor. The Plaintiff is a former client. The Defendant brought proceedings in the Local Court to recover legal fees in the sum of $1,166.00. The claim was dealt with in the Small Claims Division of that Court.

2 What happened in the Local Court followed the procedure for the hearing of small claims. The Plaintiff filed a defence. There was a Pre-Trial Review. The Plaintiff appeared. A hearing date was allocated. Written statements were exchanged.

3 The proceedings came on for hearing before an Assessor on 19 April 2005. The Defendant was legally represented. The Plaintiff did not appear.

4 After the matter had been called outside the Court, the Assessor proceeded to a hearing in the absence of the Plaintiff. There is evidence to the effect that the Assessor appeared to have read the statements provided by the parties and that after a consideration of this material, he entered judgment for the Defendant.

5 The Plaintiff then brought a Notice of Motion to have the judgment set aside. This application was heard on 9 June 2005 by Maloney LCM. The Plaintiff appeared in person. He relied on his own affidavit and made oral submissions. His application was dismissed.

6 The Plaintiff has brought proceedings in this Court. The original Summons was filed on 6 July 2005. He now proceeds on an Amended Summons.

7 The hearing took place on 20 June 2006. The Plaintiff appeared in person. The Defendant was legally represented. The parties treated the proceedings as being a challenge to both decisions.

8 Error is not a ground of appeal from a judgment or order made in the Small Claims Division. The error of challenge is restricted to matters of lack of jurisdiction or denial of natural justice. As the Court clearly has jurisdiction, the only matter left is denial of natural justice.

9 Before proceeding to look at this matter, it is also necessary to mention other hurdles that may stand in the path of the Plaintiff. The Magistrate made what might be regarded as an interlocutory decision. An appeal against such a decision made by the Assessor is presently incompetent. It has been brought out of time and an extension of time is required to enable it to be brought. I shall return to these hurdles in due course.

10 Firstly, it is convenient to look at the merits of the two challenges. It would be futile to grant either an extension of time or leave if the appeal was lacking in merit.

11 Generally speaking, the complaint of the Plaintiff is that he has not been given an opportunity to present his case. He disputes that the Assessor read his statement. He somewhat colourfully asserts that the Assessor dealt with the proceedings behind his back. He insists that the Magistrate did not allow him to speak. He contends that both judicial officers exhibited bias in that they put more weight on what was said by a solicitor.

12 At the outset, I should make the observation that I do not accept any of these submissions.

13 It is quite misleading to assert that the Assessor dealt with the proceedings behind the Plaintiff’s back. There is evidence as to what took place at the hearing (including what the Assessor did in relation to the Plaintiff’s statement). There is not a scintilla of evidence to suggest any bias on behalf of either of the two judicial officers.

14 Both parties placed evidence before the Court. The Plaintiff has sworn an affidavit. Largely, it is comprised by material that is either not relevant or otherwise inadmissible. It does contain a transcript of the hearing before the Magistrate. It does not either contain a copy of his defence or of the statement provided by him to the Assessor. It does not contain a copy of the affidavit relied on by him before the Magistrate. The Defendant relies on his own affidavit and an affidavit sworn by Therese De Pasquale (who appeared on behalf of the Defendant both before the Assessor and the Magistrate). These affidavits put before the Court, inter alia, a copy of the defence, a copy of the statement relied on by the Plaintiff and the observations made by Therese De Pasquale concerning what happened before the Assessor.

15 The Plaintiff does not dispute that he owes money to the Defendant in respect of costs. He concedes that he owes a reasonable sum. His opposition to the claim of the Defendant is on the basis that the costs claimed are excessive. The amount placed in dispute has not been quantified.

16 The Plaintiff had knowledge of the hearing date before the Assessor. The proceedings were dealt with by the Assessor in the absence of the Plaintiff by reason of the fact that the Plaintiff did not attend the hearing. He did not contact either the Defendant or the Court prior to hearing advising of ill health or an inability to attend Court on the hearing date and did not seek an adjournment. If he was incapacitated, he failed to make any arrangement for other representation. In my view, he was not denied a reasonable opportunity to present his case before the Assessor. Further, it may be said that despite the absence of the Plaintiff, the Assessor had regard to his case before the making of his decision.

17 An identification of what material was before the Magistrate is in many respects a matter of speculation. The Plaintiff has conceded that it did not comprise a medical opinion that supported any contention of unfitness to appear before the Assessor.

18 The transcript before the Magistrate reveals that there was some material concerning an overnight admission to hospital four days prior to the hearing before the Assessor.

19 The following passages appear in the transcript:-

“HIS HONOUR: “I was supposed to attend a hearing on the 19/4, I couldn’t get there, I had heart problems”. You were admitted to hospital on the 14/4, got let out on the 15/4. You still had four days to get here. “I was still recovering when it was time for Court appearance”.
Wasn’t able to defend myself due to sickness. “Required to pay claimant costs by the 17/5”. “Gino Cuomo was admitted and discharged from the RPA”. They only kept you overnight. What was wrong with you?”
CUOMO: I had a heart – it was off-beat, it was just going all over the place, up and down, I couldn’t walk.
…
HIS HONOUR: No, because you had five days, four to five days to make a phone call. You might have had arrhythmia, you weren’t tachycardic, you still live at the same address. You were admitted to hospital at six o’clock on one day and discharged at four o’clock there the next day, so you were only there for 22 hours. All you had to do was make a phone call.
CUOMO: Yeah I understand that Sir.
…
HIS HONOUR: You made your application. You relied on illness.
CUOMO: Yes.
HIS HONOUR: I’m not accepting that, I told you that.
CUOMO: Okay, well then I’ve got some matter matters than I’d like to state-.”

20 It appears from the transcript that the Magistrate was probably involved in the difficult task of managing a busy list. He was asked by the Plaintiff to deal with a short matter which he said would take a few minutes. It seems to me, that the effect of what is recorded reveals the Plaintiff pressing to be fully heard and being given a reasonable opportunity to present his case (his application based on illness was heard). The transcript evidences that the Magistrate did take into account the material on which the Plaintiff relied to have the judgment set aside and that he did not accept what was being put by the Plaintiff (transcript page 4). He also took into account the amount involved and that he was dealing with an application concerning a matter in the Small Claims Division. He was aware that the Plaintiff had filed a defence and had exchanged a written statement. The transcript does not disclose a picture of a litigant in person being overborne and not putting his case. Rather, it shows one of a persistent litigant still pressing to argue other matters even after the Magistrate had finally concluded the hearing.

21 The Plaintiff bears the onus of satisfying the Court that there has been a denial of natural justice that justifies the disturbing of the challenge of the decisions. In my view, that onus has not been discharged.

22 For the assistance of the parties, I have made certain additional observations concerning the application before the Magistrate. The findings made by the Magistrate were reasonably open having regard to what appears to have been the evidence before him. An application to set aside a judgment obtained in the absence of a party normally also requires evidence of a bona fide defence on the merits. All that the Plaintiff could put forward by way of defence was his assertion that the fees were excessive. His brief statement had limited probative value.

23 Because the challenges are lacking in merit, they must fail for that reason alone. However, for completeness, I will add that I am of the view that this is not a case in which either an extension of time or leave should be granted (should it be required).

24 An application to set aside a default judgment has been regarded as an interlocutory application and the refusal to set it aside has not been regarded as a final order (see inter alia Carr v Finance Corp of Australia Ltd (No 1) 147 CLR 246). In the present case, judgment was given in the absence of the Plaintiff. Whether or not that approach has application in the present case has not been debated before me and for present purposes it does not have to be decided.

25 No application is made for an extension of time and no evidence has been adduced to explain how the appeal came to be brought out of time.

26 The amount in dispute is very modest. There is no novel question of law. There is no public interest in further valuable Court time being devoted to this very small claim.

27 The proceedings are dismissed. The Plaintiff is to pay the costs of the proceedings.

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