El-Najjaar v Offshore Marketing Services

[2003] NSWSC 209

CITATION:	El-Najjaar v Offshore Marketing Services & Anor [2003] NSWSC 209
HEARING DATE(S):	11 March 2003
JUDGMENT DATE:	27 March 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned.
CATCHWORDS:	Appeal from Small Claims Division of Local Court - limited avenue of appeal - ground of lack of jurisdiction or denial of natural justice only.
LEGISLATION CITED:	Local Courts (Civil Claims) Act 1970, s 69, s 69 (2), s 69 (2A).
CASES CITED:	N/A
PARTIES :	Fouad El-Najjaar (Plaintiff) v RW & MJ Germaine Trading As Offshore Marketing Services (First Defendant) Neil Milson in his capacity as Magistrate of the Hornsby Local Court (Second Defendant)
FILE NUMBER(S):	SC 11991 of 2002
COUNSEL:	N/A (Plaintiff) Mr M Elliott (First Defendant) N/A (Second Defendant)
SOLICITORS:	In Person (Plaintiff) Mallesons Stephen Jaques (First Defendant) I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	926/01 Hornsby Local Court
LOWER COURT JUDICIAL OFFICER :	Neil Milson LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Thursday 27 March 2003

11991 of 2002 Fouad El-Najjaar v RW & MJ Germaine Trading As Offshore Marketing Services.

JUDGMENT

1 MASTER MALPASS: This is an appeal from the Local Court (the Summons was filed on 30 July 2002). In that court, on 26 March 2002, the first defendant recovered a monetary judgment in the sum of $8,211.22 together with costs against the plaintiff and another.

2 The case was dealt with in the Small Claims Division of the Local Court. Only the plaintiff and the first defendant appeared at the hearing. There is a transcript of the proceedings. Statements were received from the appearing parties and both were given an opportunity to be heard and to present their respective cases. After considering this material, the learned Magistrate made findings which led to his decision.

3 There is an extremely limited avenue of appeal to this Court. It is to be found in s 69 of the Local Courts (Civil Claims) Act 1970. Subject to subsection (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. In the case of proceedings in the Small Claims Division, 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.

4 The parties were not represented before the learned Magistrate. At the commencement of these proceedings, the plaintiff had a solicitor. During the course of the proceedings, he became a litigant in person and presented his own case on the appeal. The first defendant was represented by counsel.

5 The plaintiff is extremely unhappy with the decision of the learned Magistrate. He presented his case with great emotion. Largely, his submissions were directed at what could be considered to be errors of fact made by the learned Magistrate. Frequently, I sought to direct his attention to the only ground of appeal (lack of jurisdiction or denial of natural justice) available in this Court. He was unable to assist me on either of those matters.

6 I have carefully read the material that was before the learned Magistrate. I have carefully listened to what has been said by the plaintiff.

7 It has not been said that there was a lack of jurisdiction. It would be unarguable so to do. The claim clearly fell within the monetary jurisdiction of the Small Claims Division.

8 There is nothing in what is before this Court to suggest that there was a denial of natural justice. Indeed, for cases dealt with by that Division, a considerable time seems to have been devoted to the hearing of this matter and the plaintiff was given more than a reasonable opportunity to present his case.

9 The plaintiff bears the onus of satisfying the court that the decision of the learned Magistrate should be disturbed. In my view, that onus has not been discharged.

10 For completeness, I should mention one further matter. Technically speaking, the appeal is incompetent. It was brought out of time. Although the point was not argued by the first defendant, the plaintiff did not address the question of an extension of time.

11 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned.

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Last Modified: 04/01/2003