Fibafa Pty Limited v Alicia Dawn Small

[2004] NSWSC 1165

CITATION:	Fibafa Pty Limited v Alicia Dawn Small [2004] NSWSC 1165
HEARING DATE(S):	3 December 2004
JUDGMENT DATE:	14 December 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons.
CATCHWORDS:	Appeal from Small Claims Division - magistrate refuses application to set aside default judgment - not a denial of natural justice - the scope of such ground of appeal and the object of the Division.
PARTIES :	Fibafa Pty Limited t/as Hastings Office Equipment (Plaintiff) Alicia Dawn Small (Defendant)
FILE NUMBER(S):	SC 12988 of 2004
COUNSEL:	Mr L K Crowley (Plaintiff) N/A (Defendant)
SOLICITORS:	Byrnes Lawyers (Plaintiff) Donovan Oates Hannaford (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	4/04
LOWER COURT JUDICIAL OFFICER :	Evans LCM

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

14 December 2004

12988 of 2004 Fibafa Pty Limited t/as Hastings Office Equipment v Alicia Dawn Small

JUDGMENT

1 Master: The defendant was an employee of the plaintiff. Following upon the termination of her employment, the parties came into dispute in respect of wages payable to her.

2 The defendant brought proceedings in the Local Court (in the Small Claims Division). He claim was in the order of $4,000.00.

3 After service of process, the plaintiff instructed solicitors and the conduct of the matter was placed in the hands of Skye Belinda Inman.

4 Because of error made by the solicitors (concerning the date on which the process had been served), the proposed defence was not filed within the prescribed time. The defendant applied for default judgment and it was entered on 16 February 2004. The plaintiff purported to file its grounds of defence on the following day.

5 On 27 February 2004, the plaintiff filed a notice of motion to set aside the default judgment. It was heard on 25 March 2004. The application was refused.

6 Both parties were legally represented. They made submissions to the magistrate. In the course of the dialogue with the legal representatives, the magistrate said, inter alia:-

There is no doubt that Ms Inman has been forthright, as we expect, that sometimes don’t see [sic] that a defence was not filed as required and default judgment was entered. Ms Inman outlines the difficulties that she faced at the time and I am being asked to find that that difficulty and therefore, the failure to file the response should not affect the applicant to the notice of motion, but it does affect the respondent and it is opposed and I appreciate that costs can be awarded against a solicitor, or an office and in the General Division, the Court would consider party party costs, but that’s not available here and I appreciate – I’m not criticising the Legislation, that’s all that’s available, but notwithstanding the concession by Ms Inman of Mr Byrnes’ firm, I cannot distinguish between the failure by a solicitor and its impact on the client. There is redress available, if that is pursued not in this jurisdiction and I don’t mean that in any other way, the notice of motion is refused.

7 Following the making of that observation, still further argument took place. The further argument did not lead the magistrate to a change of mind.

8 On 6 August 2004, the plaintiff filed a summons in this court. It purports to bring an appeal against the decision of the Local Court. The proceedings have been brought in breach of the rules. The appeal is well out of time. There is no statement of the grounds relied upon in support of the appeal.

9 As this appeal is brought from a matter in the Small Claims Division, an appeal founded on error is not available to the plaintiff. In this case, the appeal is brought on the ground of denial of natural justice. The plaintiff bears the onus of satisfying the court that there has been a denial of natural justice and that it justifies the disturbing of the decision of the Local Court.

10 In this case, it is simply said that the refusal of the application to set aside the judgment brought about a denial of natural justice. It is a submission that I find to be untenable.

11 The parliament has limited the grounds of appeal from matters dealt with in the Small Claims Division. The intention was to achieve finality in small claims and restrict that which could be the subject of an appeal. The object was to provide a “once-only forum” for those who want to litigate over “small matters” and that the public purse should not have to contribute to the immense costs of providing an appellate procedure. It was not intended to extend the scope of denial of natural justice so as to embrace matters that could be regarded as errors of fact and/or law.

12 In determining whether or not there has been a denial of procedural fairness, the task for the court is to look at the particular circumstances of the case before it. Procedural fairness is a flexible concept. Each case can be expected to turn on its own circumstances. The onus rests with the plaintiff to demonstrate entitlement to relief. In this case, it is my view that such onus has not been discharged.

13 The hearing took place on 3 December 2004. The plaintiff was represented by counsel. There was no appearance on behalf of the defendant. A letter from her solicitors (Donovan Oates Hannaford) has been placed in the file. It advises that whilst the defendant is anxious to maintain the judgment obtained in the Local Court, she can neither afford to be represented nor travel to Sydney for the purposes of these proceedings.

14 No evidence has been placed before the court to explain the delay in the bringing of the appeal out of time. The delay is significant.

15 Normally, the court would expect an affidavit or affidavits from a representative of the plaintiff and/or his solicitor which is directed to explaining away the delay. In this case, neither the plaintiff nor his legal representative took that course. An attempt was made to tender certain correspondence. As the defendant was unaware of the material contained in the proposed tender, the material was rejected. In my view, for reasons that I shall soon refer to, the rejection of the tender was of little consequence.

16 Counsel gave the substance of the purported explanation from the bar table. Sadly, what is offered, is little more than a further instance of error on the part of the solicitors for the plaintiff. It appears that an attempt was made to bring the appeal in the Court of Appeal Division of this court. It appears that this appeal was not ultimately brought until after the erroneous application to the Court of Appeal had been rejected.

17 Leaving aside the lack of supporting evidence, it seems to me that what was sought to be offered could not adequately explain a delay of many months. In my view, the application for extension of time should be rejected for that reason alone.

18 Be that as it may, it would be futile to extend time, because the proposed appeal is devoid of merit. Indeed, it could be described as being manifestly hopeless. In addition to these matters, there is a further problem. An allowing of the appeal would bring about yet further expense. It needs to be stressed that what is in dispute is a relatively small sum in the order of $4,000.00.

19 A reading of the transcript before the Local Court suggests that what was argued before the magistrate was largely what caused the plaintiff to allow entry of the default judgment. The magistrate also had regard to the consequences of the restrictions imposed on the court in the awarding of costs in small claims matters.

20 The proposed grounds of defence do not seem to have been placed before the magistrate. The plaintiff did not seek to lead any evidence in support of the proposed defence so as to show that the plaintiff had an arguable defence to the claim. However, it appears that the solicitor for the defendant conceded before the magistrate that there was a defence.

21 The Local Court has a discretionary power to set aside a default judgment. The power is exercised having regard to the relevant circumstances of the case and so that justice is best served. The onus to demonstrate an entitlement to relief rests with the applicant. The power was not exercised by the magistrate in favour of the plaintiff.

22 Whilst the language used by the magistrate may be lacking somewhat in clarity, the only question that seems to have been argued was the question of the explanation offered by the plaintiff and that was decided adversely to the plaintiff. In my view, it was not even a case in which error in point of law could have been demonstrated.

23 The substance of the appeal is an unhappiness with the decision made by the magistrate to refuse the application to set aside the default judgment. In my view, the refusal of the application did not bring about a denial of natural justice. The plaintiff was seeking an indulgence from the Local Court. The application for that indulgence was refused.

24 This is just yet another of the many cases that are brought before this court and dressed up in a presentation of denial of natural justice in an endeavour to circumvent the limited avenue of appeal that is available when matters are heard in the Small Claims Division.

25 The application brought by the plaintiff was given a full hearing. Indeed, argument continued after the magistrate had reached his decision. The plaintiff was given a reasonable opportunity to present its case on the application (inter alia, it was given a reasonable opportunity to be heard).

26 The summons is dismissed. The plaintiff is to pay the costs of the summons.

**********

Last Modified: 12/14/2004