Doucoure v Bartlett

[2004] NSWSC 219

CITATION:	Doucoure v Bartlett [2004] NSWSC 219
HEARING DATE(S):	25 March 2004
JUDGMENT DATE:	25 March 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The Summons is dismissed. I order that the plaintiff pay the costs of the Summons.
CATCHWORDS:	Small Claims Division of Local Court - restricted rights of appeal - lack of jurisdiction and denial of natural justice.
LEGISLATION CITED:	Local Courts (Civil Claims) Act 1970, s 69, s 69 (2), s 69 (2A). Supreme Court Rules 1970, Pt 51A r 5.
CASES CITED:	N/A
PARTIES :	Sheick Moctar Baba Doucoure (Plaintiff) v Geoff Bartlett (Defendant)
FILE NUMBER(S):	SC 12078 of 2003
COUNSEL:	N/A (Plaintiff) Mr B J Burke (Defendant)
SOLICITORS:	Dennis & Company (Plaintiff) Shaw McDonald Pty Ltd (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	4703 of 2002 Downing Centre Sydney
LOWER COURT JUDICIAL OFFICER :	Assessor Harvey

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Thursday 25 March 2004

12078 of 2003 Sheick Moctar Baba Doucoure v Geoff Bartlett

JUDGMENT


1 MASTER : The plaintiff brings an appeal from a decision made in the Small Claims Division of the Local Court. The decision was made by an assessor on 24 July 2003.

2 On 22 July 2001 there was a collision between two motor vehicles. One was driven by the plaintiff, the other by the defendant. The defendant brought proceedings in the Local Court claiming damages for property damage done to his vehicle. The proceedings were defended by the plaintiff, who also brought a cross-claim. Both parties had legal representation.

3 It is unnecessary to dwell on the facts of this particular case. It was determined by the findings of fact made by the assessor. The principal question in issue was which of the two drivers drove through a red light at the intersection where the accident took place. This question of fact was decided in the defendant’s favour. It was a decision that was open on the evidence. The assessor proceeded to enter judgment for the defendant and dismiss the cross-claim. For completeness I should add that the amounts in dispute were what are usually regarded as modest sums.

4 A statement pursuant to Pt 51A r 5 of the Supreme Court Rules 1970 was filed in court on 20 October 2003. It purports to set out the grounds upon which the appeal is brought. Paragraph B asserts denial of natural justice. Paragraph C thereof asserts a number of matters including the adequacy of the reasons and the evidentiary considerations.

5 There is an extremely limited avenue of appeal to this Court from the Local Court. It is to be found in s 69 of the Local Courts (Civil Claims) Act 1970 . Subject to subs (2), all judgments and orders are expressed to be final and conclusive. Subsection (2) allows an appeal where the judgment or order is erroneous in point of law.

6 In the case of proceedings in the Small Claims Division of that court, the avenue of appeal is further restricted to an appeal only on the ground of lack of jurisdiction or denial of natural justice (s 2A). The legislation evinces a clear intention to restrict the challenge that can be made to a judgment or order in that Division.

7 In this case, it is not said that there was a lack of jurisdiction. Indeed, to say so would be untenable.

8 Therefore, the only avenue of challenge remaining open to the plaintiff is in the area of denial of natural justice.

9 The material contained in the statement failed to provide any particulars of the bare allegation that the appeal was brought against the decision on the grounds of denial of natural justice.

10 Brief oral submissions were made on behalf of the plaintiff. In the submissions, one question only was ventilated. It was that the assessor took into account impermissible material in reaching her decision. The transcript at p 13 records that she said that she gave significant weight to the police investigation. It may well be that this is a matter that she should not have taken into account. However, for present purposes, I need not pursue that matter further.

11 The legislation gives little assistance as to the role of an assessor other than that the assessor is to determine the matters in dispute in an informal manner and is not bound by the rules of evidence.

12 It seems that the usual procedure is to decide the case upon statements after hearing from the parties. This is what happened in this case.

13 The transcript shows that both parties placed statements before the assessor. Both parties were given the opportunity to make submissions in support of their respective cases. Indeed, the representative for the plaintiff made a submission dealing with what weight should have been given to the material provided by the police.

14 The onus rests with the plaintiff to demonstrate an entitlement to relief.

15 In the circumstances of this case, even assuming that the material was improperly taken into account I am not satisfied that there has been a denial of natural justice. It seems to me that what the plaintiff is really seeking to do is to agitate a question of law in a case where he is very unhappy with the findings of fact. The Summons is dismissed.

16 (Addresses on costs.)

17 I have heard the parties on the question of costs. The general rule is that costs follow the event. In my view there is nothing in this case to depart from that general position. Accordingly, I order that the plaintiff pay the costs of the Summons.
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Last Modified: 04/01/2004