Fischer v H and H Mikhail Pty Limited

[2000] NSWSC 567

CITATION:	Fischer v H & H Mikhail Pty Limited [2000] NSWSC 567
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 10069/00
HEARING DATE(S):	Tuesday 13 June 2000
JUDGMENT DATE:	13 June 2000
PARTIES :	Josef Fischer v H & H Mikhail Pty Limited
JUDGMENT OF:	Michael Grove J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	245/99
LOWER COURT JUDICIAL OFFICER :	B.J.Kennedy, Esq, LCM

COUNSEL :
SOLICITORS:	P.M.E. Robinson (Plaintiff) K. Tapsell (Defendant)
CATCHWORDS:	Local Court - Civil Jurisdiction - Lease - Guarantor - No Special Point of Principle
DECISION:	Adjournment Refused. Summons Dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 13 June 2000

10069/00 - JOSEF FISCHER v H & H MIKHAIL PTY LIMITED

JUDGMENT (On Application for Adjournment)

1    HIS HONOUR : This matter arises out of a hearing before a magistrate in the local court in which the plaintiff in this Court, Mr Josef Fischer, and a company described as Kindy College of Australia Pty Limited, was sued in a civil action by the present defendant, H & H Mikhail Pty Limited. On 30 November 1999 the magistrate entered judgment in favour of the present defendant for $40,000 plus interest and costs.

2    On 11 January 2000 Mr Fischer, as a litigant in person, filed a summons seeking relief against the judgment entered by the magistrate. The company, Kindy College of Australia Pty Limited, is not joined in the proceedings in this Court. The summons filed by Mr Fischer was returnable on 21 February this year. He did not appear and the matter was struck out.

3    On 6 March the matter was relisted and the hearing adjourned to 20 March by Hidden J, indicating that argument would be heard in full on the scheduled date. On that date Mr Fischer appeared in person and asked for further adjournment, which was consented to by the defendant upon conditions, including conditions that certain affidavits be filed and written submissions by 10 April. The matter was then adjourned to 17 April.

4    On 10 April the defendant filed written submissions. The plaintiff has not yet done so. When the matter was listed on 17 April the plaintiff requested further adjournment and again this was consented to, upon condition that certain costs would be paid and that the plaintiff's written submissions would be filed by 1 May.

5    On 5 May I am informed that Mr Fischer wrote to the defendant or its representatives, indicating that he was ill and could not attend. Correspondence emanated from Ms Robinson, the solicitor who had acted for Mr Fischer and the corporation in the hearing before the local court.

6    On 9 May Ms Robinson filed a notice of her appearance in this Court as solicitor for the plaintiff. The only further matter that has occurred is that, the further hearing being scheduled for today, a facsimile transmission was sent to the registrar, signed by Mr Fischer, indicating that he was ill with heart problems and was having further tests with a specialist at the St Vincent's Hospital Professorial Unit on Thursday, 29 June next. The matter has been listed for hearing today, 13 June.

7    Mr Fischer also enclosed a copy of a letter from Dr Savage, a general practitioner in Dapto. The content of his letter, omitting formal parts, is as follows:

"Mr Fischer presented at the surgery this morning with trans-thoracic chest pain. Mr Fischer has a previous cardiac history for which he has seen Professor O'Rourke. In view of his symptoms, despite a lack of findings, I have suggested that he be reviewed by the Professor.

In the meantime I have urged him to avoid all strenuous and stressful activity. To that end I suggest that he seek a postponement in current legal proceedings."

8    Although the letter talks about "this morning" it is not clear what date it bears, although the date of 5 or 6 May 2000 appears to have been typed by a computer somewhere between the words "Dear Sir/Madam" and the reference to Mr Fischer. It would appear that that would be the approximate date of the letter, given that 5 May was the date upon which the facsimile transmission was made to the Court.

9    Ms Robinson has appeared today to seek further adjournment. Mr Fischer had filed in Court two copies of transcript purporting to be a typescript in each case respectively, of the evidence and of the judgment of the magistrate. On the face of it it appears to have been prepared from tapes. It is not a transcript from the court reporting branch. Ms Robinson says that she is not in a position to accept the necessary completeness or accuracy of that transcript. She has not had a chance to check it. She also said that by reason of Mr Fischer's illness she has not been able to obtain full instructions from him. Part of the concept of "full instructions" is, I have ascertained as a result of inquiry, the absence of payment of professional fees.

10    In addition, it was indicated some time ago that Ms Robinson wished to retain particular counsel to appear in this matter; that counsel is apparently not available today.

11    The jurisdiction of this Court is specifically limited in dealing with challenges to civil matters heard before the local court. It would not be anticipated that Mr Fischer would or could give evidence in these proceedings. Indeed, his presence is unnecessary for the determination of any issue he wishes to raise asserting that there is legal error on the part of the magistrate.

12    As the chronicle which I earlier mentioned shows, the defendant has, on at least two occasions, consented to adjournment when the matter was fixed for hearing. The material before me does not persuade me on the probabilities that Mr Fischer has an illness of acuteness which would inhibit him from giving the necessary instructions to legal representatives to proceed with this appeal.

13    I propose to order that the adjournment application is refused, but to stand the matter down to the end of today's list marked "Not before 12 o'clock" in order to enable Ms Robinson to decide what course she intends to take. I reserve the question of costs.

14    Upon my announcement of the proposed orders Ms Robinson has told me that she has informed Mr Fischer that in the event of her application failing she would seek to withdraw from the hearing. It therefore appears that no point would be served by my standing the matter down until midday and I will deal with the matter in the list in its ordinary turn.

15    The application for adjournment is refused.
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16    HIS HONOUR: These proceedings were commenced by summons filed by the plaintiff, Josef Fischer. The focus of the challenge is a judgment by Mr Kennedy, the presiding magistrate in the Sutherland local court.

17    Earlier today I delivered judgment on an application by a solicitor, then acting for the plaintiff, seeking further adjournment of the hearing. I gave reasons for refusing that application and would treat the reasons given for that as incorporated in the present judgment.

18    The summons sets out five grounds asserting that the magistrate made errors in law. It is convenient to deal with the matter by reference to those claimed grounds in the sequence in which they appear in the document.

19    The first assertion is that the learned magistrate failed to acknowledge the plaintiff's cross-claim. That assertion is completely untenable. As I earlier indicated, there has been filed in court by the plaintiff documentation purporting to be transcript from the tape recordings of the proceedings at Sutherland local court. It cannot prejudice the plaintiff if I assume correctness. The learned magistrate expressly dismissed the cross-claim. It cannot reasonably be asserted that he did not acknowledge it.

20    The second proposition was that the magistrate failed to consider the obligations of the defendant to mitigate their damage. Exactly what is comprehended within this assertion is not entirely clear. The issue between the parties arose out of a claim for rent and damages arising out of the repudiation of a lease by a corporation known as Kindy College of Australia Pty Limited. The plaintiff, Mr Fisher, was and was found to be a guarantor of that company under the lease.

21    The magistrate's reasons were given in extenso. I am unpersuaded that there is apparent in his reasons any error of law in failing to consider obligations of the defendant to mitigate damage.

22    The third assertion is that the magistrate failed to consider that fixtures, the subject of the dispute, belonged to the plaintiff. To the contrary, there was a very live issue at trial about the rights to various items described as fixtures. The magistrate's findings in relation to these were findings of fact and this Court does not have jurisdiction to substitute any view that I might form for that formed by the magistrate. I should add that there is no legal error apparent on the face of the magistrate's reasons.

23    The fourth proposition is that the judgment amount did not reflect the true damage of the defendant and was excessive in the circumstances. The calculation of damages is itself a matter of fact. The basis upon which the computation was made was set out in the reasons for judgment and again I am unable to perceive any apparent error.

24    The final assertion is that the magistrate erred in determining the validity of the lease. In written submissions which have been filed by the defendant in compliance with directions given by this Court, it is pointed out that the validity of the lease was never an issue in the proceedings below. On an assumption that the plaintiff intended to assert that there was error in determining that the landlord had validly terminated the lease, it is drawn to attention that the magistrate correctly directed himself in relation to his assessment of the unwillingness or inability of a party to perform a contract or an essential term thereof.

25    Having directed himself correctly as to the law, the balance of the matters relative to the lease were issues of fact and again I point out that there is no jurisdiction in these proceedings for this Court to intervene.

26    I should add that at no time has the plaintiff sought to comply with serial directions given by this Court for him to file written submissions in support of his claims. As the earlier judgment noted, a solicitor had been retained more than a month ago and at least two extended periods for the filing of such submissions have expired.

27    None of the grounds is sustained. I order that the summons be dismissed with costs.
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Last Modified: 09/26/2000