Ejueyitsi v Western Sydney University

[2023] NSWCA 126

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ejueyitsi v Western Sydney University [2023] NSWCA 126

Hearing dates:

31 May 2023

Date of orders:

9 June 2023

Decision date:

09 June 2023

Before:

Mitchelmore JA at [1]
Simpson AJA at [2]
Griffiths AJA at [3]

Decision:

Dismiss the amended summons filed on 9 February 2023 with costs.

Catchwords:

JUDICIAL REVIEW – review of judgment of District Court on appeal from Local Court – whether r 36.2 of the UCPR or s 35 of the Local Court Act requires separate written reasons for judgment in Small Claims Division proceedings – whether there was a denial of procedural fairness

Legislation Cited:

Evidence Act 1995 (NSW), s 75

Local Court Act 2007 (NSW), ss 35, 39

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 36.2

Cases Cited:

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Category:

Principal judgment

Parties:

Vincent Ejueyitsi (Applicant)
Western Sydney University (First Respondent)
Joy Thomas (Second Respondent)
District Court of New South Wales (Third Respondent)

Representation:

Counsel:
F Elekwachi (Applicant)
E Ball/ M Thomson (Respondents)

Solicitors:
Clyde & Co (Respondents)

File Number(s):

2022/350649

 Decision under appeal 

Court or tribunal:

Ejueyitsi v Thomas & Anor

Jurisdiction:

District Court of New South Wales

Citation:

[2022] NSWDC 490

Date of Decision:

20 October 2022

Before:

Abadee DCJ

File Number(s):

2022/228078

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Ejueyitsi, the applicant, commenced proceedings in the Small Claims Division of the Local Court in relation to a decision by the Western Sydney University to disenroll Mr Ejueyitsi from a course following non-payment of fees. Pursuant to a notice of motion filed by the defendants, the Magistrate struck out the amended statement of claim (which was in narrative form). The Magistrate gave ex tempore oral reasons for judgment. As the result of an administrative difficulty, the transcript of the Magistrate’s reasons for judgment was not available until after the hearing of an appeal in the District Court.

Mr Ejueyitsi appealed to the District Court. Pursuant to a notice of motion lodged by the respondents, the District Court judge ordered that the appeal be summarily dismissed, as disclosing no reasonable cause of action,

Mr Ejueyitsi filed a summons in this Court, seeking judicial review of the decision summarily to dismiss the proceeding.

The Court (Griffiths AJA, Mitchelmore JA and Simpson AJA agreeing) dismissed the amended summons with costs.

1. Section 35(6) of the Local Court Act is directed solely at whether a recording needs to be made of any part of the proceedings. Nothing in s 35(6) requires a Magistrate to cause their reasons for judgment to be provided or published in a separate written form. Nor does r 36.2 of the UCPR create such an obligation. Rule 36.2 applies where a Court gives oral judgment and has prepared separate reasons for judgment. The Magistrate’s oral reasons for judgment were not separately reduced to writing. Accordingly, neither sub-rule 36.2(1) nor 36.2(2) was engaged. (Griffiths AJA at [45]-[50], Mitchelmore JA at [1], Simpson AJA at [2]).

2. There was no procedural unfairness in the District Court proceedings. There was no requirement for the Magistrate to provide separate written reasons. As there was no transcript available to the District Court, the District Court judge cannot be criticised for allowing evidence to be given by both parties as to whether or not reasons were given. There was no requirement for the District Court judge to have the Magistrate’s reasons before him, in deciding summarily to dismiss the appeal as it disclosed no reasonable cause of action. (Griffiths AJA at [59]-[61], Mitchelmore JA at [1], Simpson AJA at [2]).

JUDGMENT

1. MITCHELMORE JA: I agree with Griffiths AJA.

2. SIMPSON AJA: I agree with Griffiths AJA.

3. GRIFFITHS AJA: The applicant seeks judicial review of a judgment and orders of the District Court dated 20 October 2022 (see Ejueyitsi v Thomas [2022] NSWDC 490 (“DC Judgment”)). Abadee DCJ upheld the respondents’ application for summary dismissal of an appeal which had been brought by Mr Ejueyitsi against a decision dated 10 June 2022 of the Local Court sitting in the Small Claims Division, which struck out Mr Ejueyitsi’s amended statement of claim in that Court. In brief, the Local Court’s decision was made in the context of Mr Ejueyitsi having commenced proceedings against two members of staff at the Western Sydney University (“WSU”). In those proceedings, Mr Ejueyitsi claimed a sum of $50,000 as damages (later reduced to $20,000). The proceedings arose from a decision by Student Administration at WSU to disenroll Mr Ejueyitsi in a Public Health Law course because full payment of his tuition fees had not been received by the due date.

4. By way of further background to that decision, Mr Ejueyitsi said that he had completed the course but he was dissatisfied with the grade he received. He then had sought to take advantage of a process offered by WSU by which a student could seek a review of such a grade. It was only then that he says he was told that the Public Health Law course was a “non-award single unit” course for which HECS loans were not available and that he had to pay a course fee in the sum of $1,812.00. Mr Ejueyitsi claimed that if he had known this information before he enrolled in the course at WSU, he would not have enrolled there but at another institution where HECS support was available.

5. For the reasons that follow, the amended summons dated 9 February 2023 seeking judicial review of the District Court’s decision should be dismissed, with costs.

Summary of procedural matters

6. It is desirable by way of background to describe the procedural steps that occurred in the Local Court proceedings, before summarising the District Court proceedings.

Local Court proceedings

7. Mr Ejueyitsi commenced his proceeding in the Local Court by filing a statement of claim on 7 February 2022. The only named defendant was Ms Joy Thomas, a member of staff at WSU. The statement of claim, which was drafted by Mr Ejueyitsi himself, was in a narrative form, but it made clear that he relied upon causes of action in both negligence and contract. The document did not plead material facts in the ordinary way. The document could fairly be described as a statement of Mr Ejueyitsi’s submissions and contentions.

8. In a letter dated 4 April 2022, WSU’s solicitors wrote to Mr Ejueyitsi and pointed out the pleading deficiencies in his statement of claim with reference to relevant provisions of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The letter also explained why Ms Thomas viewed the proceedings as frivolous or vexatious and liable to be dismissed.

9. On 5 April 2022, an amended statement of claim was filed. WSU was named as the second defendant but, other than that, the body of the pleading remained essentially unchanged.

10. On 28 April 2022, a further amended statement of claim was apparently filed, or at least prepared. Ms Thomas was named as the first defendant; the Vice-Chancellor of WSU (Professor Glover) was named as the second defendant. Otherwise, Mr Ejueyitsi’s pleaded case remained substantially unchanged. The relatively minor amendments did nothing to overcome the pleading deficiencies which had been brought to his attention.

11. By a notice of motion filed on 4 May 2022, the defendants sought orders that the proceedings be dismissed under r 13.4 of the UCPR or, alternatively, that the amended statement of claim dated 5 April 2022 be struck out under r 14.28. The motion was heard by Magistrate Feather on 10 June 2022. Orders were made that day, including an order that the “amended statement of liquidated claim” be struck out. No order for summary dismissal was made. For completeness, it might be noted that although the Small Claims Division of the Local Court had jurisdiction to consider and apply r 14.28 of the UCPR, it did not have jurisdiction in relation to r 13.4 of the UCPR to order summary dismissal: see Schedule 1 of the UCPR.

12. On the hearing of the motion in the Local Court, Mr Ejueyitsi represented himself and made submissions as to why his pleadings should not be struck out. The defendants were represented by Mr Eli Ball of counsel. It is undisputed that the Magistrate gave oral ex tempore reasons for judgment on that day. As will emerge, however, Mr Ejueyitsi was dissatisfied that he never received separate written reasons for judgment by the Magistrate.

District Court proceedings

13. By a summons dated 5 July 2022, Mr Ejueyitsi appealed from the Local Court’s decision. Ms Thomas and Professor Glover were named as the first and second defendants respectively. Mr Ejueyitsi sought orders to have the Local Court’s orders set aside and an order remitting the matter to the Local Court. The summons (which was drafted by Mr Ejueyitsi) identified four grounds of appeal. They included claims that the Magistrate erred in striking out the pleading on the ground that “there was no cause of action”; that the Magistrate erred in striking out the pleading in circumstances where facts were peculiarly within the defendants’ knowledge and could have become the subject of further evidence; that the Magistrate should have given Mr Ejueyitsi an opportunity to obtain additional evidence through processes such as discovery; and that the Magistrate was incorrect in finding that Ms Thomas “was not party to the proceeding”.

14. By a notice of motion filed in the District Court on 12 August 2022, the defendants sought to have the appeal summarily dismissed under r 13.4 of the UCPR. They relied on an affidavit in support sworn on 15 August 2022 by their solicitor, Ms Hannah Glover. Ms Glover gave evidence on information and belief that both Mr Ejueyitsi and Mr Ball had appeared in person in the Local Court on 10 June 2022 and were given the opportunity to make oral submissions, and, further, that the Magistrate gave an ex tempore judgment. The affidavit also pointed out that pursuant to s 39(2) of the Local Court Act 2007 (NSW) (“LC Act”), an appeal from a judgment or order of the Small Claims Division of the Local Court is limited to the grounds of lack of jurisdiction or denial of procedural fairness.

15. Mr Ejueyitsi filed written submissions and additional written submissions on the defendants’ motion. Both were prepared by him. His additional written submissions, which were presumably informed by the contents of Ms Glover’s affidavit, raised matters additional to those contained in the filed appeal summons. In brief, the new matters were that the Magistrate gave neither reasons nor an explanation for his decision; that there was no evidence to support the Magistrate’s reasons or, alternatively, that the Magistrate had failed to consider the evidence and facts which amounted to procedural unfairness; and that the Magistrate exceeded jurisdiction “by failing to adhere with the provisions of r 14.28 of the UCPR”.

16. In his additional written submissions, Mr Ejueyitsi also said that he had requested written reasons for the judgment of the Magistrate and transcripts of the hearing but that he had been told by the Local Court that it could locate neither any written reasons nor transcripts of the hearing. He said that these matters denied the District Court the opportunity to determine his appeal “on its merits” and that the Magistrate had denied him procedural fairness and a right to a fair hearing of the appeal.

17. Mr Ejueyitsi annexed to his additional written submissions an amended summons which contained the following two appeal grounds (reproduced without correction):

1.   The learned magistrate denied the appellant procedural fairness in that he failed to give treasons (sic) for the judgement/reasons (sic) and the court and the court below (sic) failed to provide the transcript of the hearing of 10th June 2022, and [the] learned magistrate failed to hear the appellant amended statement of claim in breach of the hearing rule

2. The learned magistrate exceeded jurisdiction in that he exceed[ed] the power conferred upon the small claims div. pursuant to r 14.28 UCPR

18. In the course of the hearing in the District Court on 20 October 2022, after noting that no reasons or transcript were available regarding the Magistrate’s ex tempore decision, Abadee DCJ heard evidence to determine whether reasons had in fact been given. The evidence included the affidavit of Ms Glover (as referred to above), which included a statement that the Magistrate gave ex tempore reasons after the parties were given an opportunity to make submissions. The evidence also included that of Mr Ejueyitsi, who indicated in cross-examination that he had had an opportunity to make submissions to the Magistrate, that the Magistrate had told him why his pleading was struck out and that the Magistrate had argued with him.

19. It is desirable now to summarise Abadee DCJ’s comprehensive reasons for summarily dismissing Mr Ejueyitsi’s appeal.

20. His Honour (correctly) noted at DC Judgment [38] that an appeal from the Small Claims Division to the District Court was limited to grounds of “lack of jurisdiction or denial of procedural fairness”. His Honour also (correctly) noted at DC Judgment [43]-[44] that the power summarily to dismiss an appeal under r 13.4 of the UCPR was “exceptional” and, in accordance with the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, should only occur where the case was obviously untenable.

Initial grounds of appeal in the District Court

21. Whether the appeal was obviously untenable depended on the pleaded grounds. Mr Ejueyitsi raised several grounds in his original summons, which in summary form amounted to the following:

1. The Magistrate misapplied relevant caselaw on striking out pleadings.

2. The statement of claim should not have been struck out for want of evidence because the evidentiary gaps were “peculiarly” within the respondents’ “knowledge” and Mr Ejueyitsi should have been allowed to fill those gaps with discovery or interrogatories.

3. The claim was arguable, so the statement of claim should not have been dismissed - the Magistrate should have ordered an amendment.

22. The following final ground in [8] of the summons is difficult to understand:

8.    His honour was incorrect when he said that the first defendant was not party to the proceeding, because it has full knowledge of the case as actor, at best the second defendant would be excused in as much the first defendant was the major actor. Court is within the means of error with respect if pressed

23. These initial grounds were addressed and rejected by Abadee DCJ. Some of the grounds suggested that the action should not have been dismissed because there was an arguable issue. But, as Abadee DCJ found, the Magistrate did not in fact summarily dismiss the action. Rather the statement of claim was struck out. As to Mr Ejueyitsi’s claim that the Magistrate should have permitted him to amend his statement of claim, Abadee DCJ noted that this was a complaint about the exercise of a discretionary power and there was nothing stopping Mr Ejueyitsi from preparing a new iteration of his pleadings. Abadee DCJ concluded at DC Judgment [50] that none of the initial grounds disclosed a lack of jurisdiction or denial of procedural fairness.

24. Abadee DCJ candidly (and understandably) acknowledged that he did not fully understand the final ground in [8] of the summons. His Honour concluded at DC Judgment [52] that there was “a virtual certainty” that none of these grounds would succeed on appeal.

The additional grounds of appeal in the District Court

25. As noted above, in his additional written submissions opposing the motion, Mr Ejueyitsi raised three new grounds of appeal. Abadee DCJ addressed and rejected each of these grounds.

26. The new grounds, as summarised by Abadee DCJ, were:

(1)    the Magistrate did not give reasons for his decision. This amounted to a denial of procedural fairness;

(2)    the Magistrate did not consider the evidence or facts, denying [Mr Ejueyitsi] a fair hearing, which also amounted to a denial of procedural fairness; and

(3)    the Magistrate exceeded his jurisdiction by ‘failing to adhere to’ a rule of Court (r 14.28).

27. Implicitly recognising that the new grounds were raised in response to the defendants having highlighted that the appeal to the District Court was limited to lack of jurisdiction and procedural unfairness, Abadee DCJ explained why he rejected the three new grounds by reference to them as “the lack of jurisdiction ground” and “the procedural fairness ground”.

The lack of jurisdiction ground

28. At DC Judgment [54], Abadee DCJ drew a distinction between the Magistrate’s jurisdiction to determine whether or not to strike out a pleading under r 14.28 of the UCPR, as opposed to the exercise of that power. His Honour accepted the defendants’ submission that any failure to adhere to r 14.28 of the UCPR (as alleged by Mr Ejueyitsi) was best described as an error of law or a discretionary error. In any event, the critical point was that Mr Ejueyitsi’s complaint simply raised a question about the exercise of power as opposed to lack of jurisdiction. Accordingly, new ground 3 failed.

The procedural fairness ground

29. Under this heading, Abadee DCJ addressed and explained why there was no triable issue concerning the claim that Mr Ejueyitsi was denied procedural fairness because the Magistrate failed to provide reasons for the 10 June 2022 decision or that he was denied procedural fairness because the Magistrate did not consider the evidence or facts. As to the first of those matters, Abadee DCJ was satisfied, based on Ms Glover’s affidavit and the cross-examination of Mr Ejueyitsi, that reasons had in fact been delivered orally. Abadee DCJ stated at DC Judgment [58] (emphasis added):

I do not accept that no reasons were given for the ruling even if a transcript of the reasons was not put before this Court. This pulled the rug out from the [Mr Ejueyitsi’s] new submission. Reasons were given.

30. Abadee DCJ added that, in any event, the failure to provide a transcript was an administrative shortcoming and was not evidence that the Magistrate failed to give reasons. The Magistrate was not responsible for the administrative failure, and, frustrating though it may have been, it did not impair the procedural fairness the Magistrate did afford.

31. As to the second limb of the new procedural unfairness complaint, which Abadee DCJ saw as a complaint that the Magistrate failed to consider a proposed new version of the pleading, Abadee DCJ found that the Magistrate was entitled to determine the defendants’ application to have the existing amended statement of claim struck out. Moreover, Abadee DCJ reiterated that the proceedings had not been summarily dismissed in the Local Court.

32. For all these reasons, Abadee DCJ concluded that neither a lack of jurisdiction nor a denial of procedural fairness had been made out and that, since no reasonable cause of action was disclosed, the proceeding should be summarily dismissed under r 13.4(1)(b) of the UCPR.

Judicial review proceedings in the Court of Appeal

33. Although Mr Ejueyitsi was personally responsible for drafting the original and amended summons and supporting written submissions in this Court, at the hearing he was represented by Mr Elekwachi of counsel. Mr Elekwachi presented the applicant’s case as well as it could be.

34. It might be noted that WSU was added as a first respondent to the amended summons even though it was not a party below. In this Court WSU did not press its objection to having been joined to the proceedings at this late stage.

35. It is convenient first to address the notice of motion which was moved on by the respondents at the outset of the hearing of the application for judicial review, before turning to address the grounds of judicial review.

(a) Respondents’ notice of motion

36. On 28 October 2022 (i.e. 8 days after Abadee DCJ’s judgment was given), the respondents obtained a transcript of the Magistrate’s reasons and provided a copy to Mr Ejueyitsi. By a notice of motion dated 12 April 2023, the respondents sought to have the transcript admitted as evidence in the judicial review proceedings. Although in their pre-hearing written submissions the respondents had indicated that they would not move on the motion (as the amended summons did not seek to challenge the Magistrate’s decision), subsequently they did move on it on the basis that the transcript was relevant to the Court’s discretion of whether or not to grant relief in the judicial review proceedings. The transcript was admitted on that basis.

37. The Magistrate’s oral reasons for judgment, as recorded in the transcript, may be summarised as follows. After stating his understanding that the defendants sought to have the pleadings struck out because they disclosed no reasonable cause of action, the Magistrate referred to the requirement imposed by r 14.7 of the UCPR to the effect that, subject to some stated exceptions, a pleading must contain only a summary of the material facts relied upon and not the evidence by which those facts are to be proved. The Magistrate concluded that the amended statement of claim did not meet those requirements and that, moreover, that pleading was not “as brief as the nature of the case allows” contrary to r 14.8 of the UCPR. He described the amended statement of claim as “garbled”.

38. Next, the Magistrate stated that he did not propose summarily to dismiss the proceedings and, after referring to relevant caselaw on the power to strike out under r 14.28 of the UCPR, the Magistrate said:

I am satisfied that those.. (not transcribable).. apply in relation to the amended statement of claim that has been filed by the plaintiff. It is not intelligible. It is ambiguous and it is imprecise, significantly imprecise in relation to the pleadings. In those circumstances and having considered his written submissions and oral submissions today, I am satisfied it is appropriate to move on the motion that has been filed by defendants.

I PROPOSE TO STRIKE OUT THE CLAIM.

(b) Applicant’s judicial review grounds

39. It was common ground that, to succeed in his judicial review application in this Court, Mr Ejueyitsi had to demonstrate either a jurisdictional error or an error of law on the face of the record in respect of Abadee DCJ’s decision.

40. The grounds of review raised in the amended summons filed on 9 February 2023 may be summarised as follows. The applicant claims that Abadee DCJ:

1. erred in relying on hearsay evidence to determine what the Magistrate’s reasons had been;

2. denied the applicant procedural fairness by relying on hearsay evidence of what the Magistrate’s reasons had been;

3. erred in interpreting s 35(6) of the LC Act as imposing no requirement for written reasons, contrary to r 36.2 of the UCPR;

4. erred in finding that the Magistrate was not responsible for providing written reasons, and erred in finding that such a failure to provide written reasons was not a denial of procedural fairness;

5. erred in not making a specific factual finding about what reasons the Magistrate had given for striking out the applicant’s claim;

6. made findings without admissible or adequate evidence about the Magistrate’s reasons for judgment;

7. mistook the applicant’s ground of appeal that the Magistrate failed to provide written reasons for judgment to be a complaint about the Magistrate’s failure to provide a transcript of the proceedings; and

8. denied the applicant procedural fairness by dismissing the appeal without consulting the Magistrate’s written reasons.

41. When the grounds are read together, and in light of Mr Ejueyitsi’s written and oral submissions, four complaints emerge. Abadee DCJ:

1. was wrong to find written reasons were not required;

2. was wrong to rely on inadmissible evidence as to whether the Magistrate gave reasons;

3. misconstrued the applicant’s ground of appeal regarding the failure to provide written reasons for judgment; and

4. denied the applicant procedural fairness.

Consideration and determination

(1) Were written reasons required?

42. Mr Ejueyitsi submitted that Abadee DCJ “misinterpreted and misconstrued section 35(6) of the [LC Act] in holding that there is no requirement for written reasons for judgement (sic) by the Magistrate”. He also submitted that r 36.2 of the UCPR required separate written reasons for judgment to be provided.

43. Section 35 of the LC Act provides (emphasis added):

35   Procedure generally in Small Claims Division

(1)     The jurisdiction of the Court sitting in its Small Claims Division may be exercised by a Magistrate or an Assessor.

(1A)     However, the jurisdiction of the Court in proceedings involving company title home unit disputes under section 34A may only be exercised by a Magistrate.

(2)     Proceedings in the Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits.

(3)     The rules of evidence do not apply to proceedings being heard or other proceedings in the Small Claims Division.

(4)     Witnesses may not be cross-examined except in circumstances in which, and to the extent to which, the cross-examination of witnesses is authorised by the rules or a practice note.

(5)     A Magistrate or an Assessor exercising the jurisdiction of the Court sitting in its Small Claims Division may inform himself or herself on any matter relating to proceedings being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit.

(6)     Proceedings in the Small Claims Division (other than any judgment given or order made in respect of the proceedings) are not required to be recorded.

44. In oral address, Mr Elekwachi submitted that the reference in s 35(6) to “any judgment given” referred to reasons for judgment and that the word “recorded” meant recorded in writing. Accordingly, he submitted that the effect of this provision was to require separate reasons for judgment to be given in writing and that it was not enough for the Magistrate sitting in the Small Claims Division to give oral reasons.

45. I do not accept those submissions. As is made clear by the heading to s 35, it provides for procedural aspects of proceedings in the Small Claims Division. Section 35(2) expressly states that the proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits. Other sub-sections make clear that procedures and rules which normally apply in other judicial proceedings (including other decisions of the Local Court) have no application to the Small Claims Division. Properly construed, s 35(6) is directed solely to the question of whether a recording (in some form or other, which might be a tape or an electronic recording or some other form or medium which constitutes a record) needs to be made of any part of those proceedings. It provides that the only matters which must be recorded, in this sense, are the giving of a judgment or the making of an order. Nothing in s 35(6) requires a Magistrate sitting in the Small Claims Division to cause his or her reasons for judgment to be provided or published in a separate written form. It is sufficient to have reasons for judgment recorded in some manner as described above.

46. As noted above, the applicant also contended that r 36.2 of the UCPR was the source of a legal obligation of a Magistrate sitting in the Small Claims Division to provide separate reasons for judgment in writing. That rule provides:

36.2 Written reasons for judgment

(1)    If the court gives any judgment, or makes any order or decision, and its reasons for the judgment, order or decision are reduced to writing, it is sufficient for the court to state its judgment, order or decision orally, without stating the reasons.

(2)   After a judgment, order or decision has been stated orally under subrule (1), a written copy of it, including the court's reasons for it, must then be delivered to an associate, registrar or some other officer of the court for delivery to the parties or may instead be delivered directly to the parties.   

47. For the following reasons, I reject this construction of r 36.2. Relevantly, sub-rule (1) applies where a Court gives a judgment and has prepared written reasons for judgment. In that situation the Court need only state its judgment orally and need not read out the reasons (simply because they have already been reduced to writing). Sub-rule (2) only applies where, relevantly, a judgment has been stated orally under sub-rule (1). Where that has occurred, sub-rule (2) requires that a written copy of the judgment (which has been stated orally) together with the reasons for judgment (which have already been reduced to writing in order for sub-rule 36.2(1) to be engaged) must then be delivered to the persons referred to in sub-rule (2).

48. The two sub-rules are plainly linked. Sub-rule (2) cannot be read in isolation from sub-rule (1). In the present case, it was common ground that the Magistrate gave oral reasons for judgment which were not separately reduced to writing other than in the transcript. Accordingly, neither of the sub-rules was engaged.

49. Finally, acceptance of the applicant’s contention that the Magistrate had a legal obligation to provide separate reasons for judgment in writing sits very uncomfortably with the notion of the Small Claims Division being a high volume and informal jurisdiction dealing with disputes involving relatively modest sums and with the clear legislative intention manifested in s 36 of the LC Act that its procedures should reflect those features.

50. For these reasons, I reject the applicant’s claim that Abadee DCJ misconstrued either s 35(6) of the LC Act or r 36.2 of the UCPR.

(2) Reliance on inadmissible evidence

51. Mr Ejueyitsi submitted that Abadee DCJ relied on “hearsay evidence, inadmissible or unreliable evidence” and contended that Abadee DCJ improperly “replace[d] or substitute[d]” the Magistrate’s reasons with material provided by the respondents, including their affidavit and submissions in the District Court proceedings.

52. There are several reasons why this ground of review should be rejected. First, this was an interlocutory proceeding for summary dismissal to which the hearsay rule did not apply (see s 75 of the Evidence Act 1995 (NSW)).

53. Secondly, and in any event, Abadee DCJ also relied on non-hearsay evidence in determining what happened in the Local Court, namely Mr Ejueyitsi’s own evidence of what the Magistrate had said. This evidence also supports the finding that reasons were in fact given.

54. The applicant has failed to establish either jurisdictional error or error of law on the face of the record in respect of this matter.

(3) Misconstruction of ground of appeal

55. The applicant complains that Abadee DCJ erred by misunderstanding his ground of appeal that the Magistrate failed to provide written reasons for judgment as being a complaint about the Magistrate’s failure to provide a transcript of the proceedings. The applicant submits that his complaint was, in fact, regarding the Magistrate’s failure to provide separate reasons for judgment in writing.

56. I have explained above why there was no legal obligation on the Magistrate to provide such reasons. It was sufficient that the Magistrate delivered ex tempore oral reasons. Accordingly, this ground must also fail.

(4) Denial of procedural fairness

57. Mr Ejueyitsi submitted that the Magistrate denied him procedural fairness by failing to provide separate written reasons. He then submitted that Abadee DCJ also erred in not finding that failure by the Magistrate to constitute procedural unfairness. He submitted that there was procedural unfairness because, without separate written reasons, he could not understand why the Magistrate made the decision to strike-out his pleading.

58. Mr Ejueyitsi further submitted that, without a record of reasons, Abadee DCJ had no opportunity to understand what had been decided below, and the fact that he proceeded regardless was itself a denial of procedural fairness.

59. For the following reasons, there was no denial of procedural fairness. First, in circumstances where the Magistrate was not obliged to provide separate written reasons for judgment (as explained above), there could be no procedural unfairness where those reasons were simply stated orally and were then recorded.

60. Secondly, in circumstances where a copy of the transcript of the hearing in the Local Court was not available when Mr Ejueyitsi’s appeal was heard in the District Court, and where there was a dispute at the commencement of that hearing as to what had occurred below, Abadee DCJ cannot be criticised for allowing evidence to be given by both Mr Ejueyitsi and the respondents as to whether or not reasons were given. It is notable that this evidence did not disclose the content of those reasons and was directed to the issue of whether or not reasons had in fact been given.

61. Thirdly, there was no procedural unfairness in the fact that Abadee DCJ then determined for himself, after taking into account the parties’ evidence and submissions, that Mr Ejueyitsi’s appeal should be summarily dismissed because it disclosed no reasonable cause of action. It was not necessary for Abadee DCJ, in reaching that conclusion, to have before him the Magistrate’s reasons for striking out the pleading.

Some final observations

62. It is important not to lose sight of the fact that the proceeding in this Court is a judicial review challenge to the orders and judgment of the District Court. This needs to be emphasised because several times during oral address, Mr Elekwachi seemed to assume that the proceeding extended to a direct review (or appeal) from the Magistrate’s decision. As the Court made clear during the hearing, even if the judicial review challenge succeeded the Court would not have power to quash the Magistrate’s decision. At best, on that hypothesis, the orders of the District Court would be set aside and the matter remitted to it for consideration according to law.

63. Secondly, the applicant’s case appeared to be conducted on the basis that an appeal from the Local Court to the District Court under s 39(2) of the LC Act permitted the applicant to raise the issue of whether the Magistrate had acted in “excess” of jurisdiction. As the Court pointed out during the course of the hearing, this submission gives insufficient attention to the distinction between an excess of jurisdiction, as opposed to lack of jurisdiction, as well as to the further distinction between jurisdiction and power. The significance of these matters was adverted to by Abadee DCJ at DC Judgment [38]-[42]. In my respectful view, there is considerable force in what his Honour said in those paragraphs but it is unnecessary to express a final view. Strictly speaking, the significance of the distinctions does not arise in the present judicial review proceeding.

Conclusion

64. For these reasons, the amended summons should be dismissed with costs.

65. In circumstances where the applicant has failed to establish either jurisdictional error or error of law on the face of the record, it is unnecessary to determine whether or not judicial review relief would have been refused in any event because the applicant has now been provided with a copy of a transcript of the Magistrate’s reasons.

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Decision last updated: 09 June 2023