Doyle v Turner

[2004] NSWSC 756

CITATION:	Doyle v Turner [2004] NSWSC 756
HEARING DATE(S):	17 August 2004
JUDGMENT DATE:	31 August 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons; the exhibit may be returned; any application for indemnity costs referred to a registrar for determination.
CATCHWORDS:	Denial of natural justice - role of Small Claims Division.
PARTIES :	Stephen John Doyle (Plaintiff) Douglas Turner (Defendant)
FILE NUMBER(S):	SC 13001/03
COUNSEL:	In person (Plaintiff) Mr S Cook (Defendant)
SOLICITORS:	Stephen Doyle & Associates (Plaintiff) Mr D Turner (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	1265/03
LOWER COURT JUDICIAL OFFICER :	Assessor J Connelly

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Tuesday 31 August 2004

13001 of 2003 Stephen John Doyle v Douglas Turner

JUDGMENT

1 Master: The plaintiff is a solicitor. In January 2002, the defendant was a solicitor employed by him.

2 On 31 January 2002, the defendant gave a month’s notice of termination of employment. On the following day, a meeting took place between the parties. The meeting saw the defendant ceasing work for the plaintiff.

3 The defendant brought proceedings in the Local Court. The claim for inter alia four weeks salary fell within the jurisdiction of the Small Claims Division. It came on for hearing before an assessor in that division. The hearing took place on 30 September 2003. On that day, the assessor determined the matter in the defendant’s favour. He recovered a judgment in respect of his claim, together with interest and costs.

4 The usual procedure in the Small Claims Division was followed in this case. The parties relied on written statements. The statements and other documentation were put before the assessor. The parties were given an opportunity to put submissions. The hearing took about an hour.

5 The plaintiff appeared in person. The defendant was represented by counsel.

6 On 27 October 2003, the plaintiff filed a summons in this court. It propounds an appeal against the decision of the assessor.

7 The appeal was heard on 17 August 2004. The plaintiff was not present in court when the summons was called on for hearing. At about 10.10am, upon application by the defendant to do so, I proceeded to hear the appeal ex parte. After the conclusion of the hearing and whilst I was in the course of delivering an extemporaneous judgment, the plaintiff appeared. Although it was opposed by the defendant, I allowed the plaintiff to argue his case. He relied on written submissions which were supplemented by extensive oral argument.

8 The court had before it a document which set out the grounds of appeal, a supporting affidavit sworn by the plaintiff himself, and a bundle of documents (Exhibit A).

9 Exhibit A contained inter alia documents that were before the assessor and a transcript of the hearing (including the expression of the assessor’s decision making process).

10 There is a narrow avenue of appeal from a decision of the Local Court. It is restricted to error in point of law. Where the appeal comes from the Small Claims Division of that court, it is further restricted to lack of jurisdiction or denial of natural justice.

11 In the present case, the appeal is presented on the basis of denial of natural justice only.

12 The grounds of appeal contain inter alia the following:-

… Assessor Connelly
a) failed in her duty “to come to a decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice”;
b) failed in her duty to act in good faith and fairly listen to both sides;
c) failed to determine the case according to the facts and/or evidence presented and in applying the general law applicable to the particular action.

Subsequently, it sets out an elaboration of these matters.

13 The assessor had before her two competing versions of the meeting had on 1 February 2002. In his grounds of defence, the plaintiff alleged that the notice was superseded by an agreement made on 1 February 2002 to the effect that the defendant would resign effective from that day.

14 The plaintiff relied on his version of what took place at the meeting and other material to substantiate the agreement alleged by him.

15 The substance of the reasoning process expressed by the assessor is to be found in the exchanges had between her and the parties. It is clear that she came to the view that the plaintiff had failed to prove the agreement alleged by him. She did not accept that any such agreement had been made between the parties.

16 In dealing with the appeal, I shall put aside any question as to the merits of the alleged defence. It is unnecessary to consider that matter.

17 In determining whether or not there has been a denial of natural justice, the task for the court is to look at the particular circumstances of the case before it. Natural justice is a flexible concept involving fairness.

18 The submissions made by the plaintiff throw up a variety of complaints. I shall merely mention some of them. There were complaints of bias, predisposition, failure to act in good faith and fairly listen to both sides and failure to determine the case according to the facts and/or evidence and in applying the law that was applicable. In concluding his submissions, the plaintiff referred to the decision as “a travesty of justice”.

19 During the hearing, the plaintiff was invited to take the court to the various passages in the transcript that were relied on by him to substantiate his allegations. He purported to undertake that task. He identified various passages in the transcript and they were each considered.

20 In my view, the transcript fails to provide support for the allegations of bias, predisposition or lack of good faith. I am not satisfied that there was a failure to fairly listen to both sides.

21 The transcript discloses that the assessor received the statements and other documentation which the parties put before her and that she gave the parties a reasonable opportunity to present their respective cases.

22 It needs to be appreciated that the function of the Small Claims Division is to expeditiously process small claims so that the parties are not put to disproportionate expense. The pressure of business in a busy court means that the time available to process such claims inevitably must be limited.

23 Whilst there has been an attempt to present what happened as giving rise to unfairness, it seems to me that this is no more than a case where the plaintiff is bitterly unhappy about the result reached by the assessor.

24 It was a case where there was evidence before the assessor to support her decision. A complaint that it was against the weight of the evidence or the like does not assist the plaintiff in an appeal of this nature.

25 The plaintiff bears the onus of satisfying the court that there was a denial of natural justice. In my view, he has failed to discharge that onus. Accordingly, the appeal fails.

26 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibit may be returned.

27 The defendant has foreshadowed an application for indemnity costs. The parties take the view that such question should be deferred pending the delivery of the judgment in the appeal. I refer any such application to a registrar for determination.

Last Modified: 09/02/2004