Habra v Reinke

[2005] NSWSC 1090

CITATION:	Habra v Reinke [2005] NSWSC 1090
HEARING DATE(S):	26 October 2005
JUDGMENT DATE :	26 October 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS:	Appeal from Small Claims Division - no denial of natural justice - unhappiness with findings of fact - attempt to have a re-hearing in this court.
PARTIES:	Osman Habra (Plaintiff) Margery Reinke (Defendant)
FILE NUMBER(S):	SC 12585/05
COUNSEL:	In person (Plaintiff) Mr S Maybury (Defendant)
SOLICITORS:	In person (Plaintiff) Mason Black Lawyers (Defendant)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	2004/1162
LOWER COURT JUDICIAL OFFICER :	Hannam LCM

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

26 October 2005

12585 of 2005 Osman Habra v Margery Reinke

JUDGMENT

1 His Honour: The plaintiff is a litigant in person. He was involved in a motor vehicle accident. He brought proceedings in the Local Court. It was managed and determined in the Small Claims Division in accordance with the usual procedure (the Amended Practice Note No. 3/2001).

2 The plaintiff’s claim came before Hannam LCM on 18 May 2005. A hearing took place on that day. The plaintiff appeared in person and the defendant was represented by a solicitor (Mr Ishak). The Magistrate reserved her decision so that she could give further consideration to the material that had been put before her.

3 The Magistrate’s reasons and decision were delivered on 23 May 2005. The plaintiff was unsuccessful. The defendant was successful on her cross-claim and the plaintiff was ordered to pay costs.

4 On 20 June 2005, the plaintiff filed a summons in this court. It is brought for the purposes of challenging the decision of the Magistrate. It fails to disclose any grounds of appeal.

5 Again, the plaintiff appears in person. The defendant is legally represented.

6 The plaintiff’s claim in the Local Court was in the order of $2,000. The judgment on the cross-claim was in the order of $4,000.

7 There is a very narrow ambit of challenge to decisions made in the Small Claims Division. One ambit of challenge is on a question of jurisdiction. Such an ambit has no relevance in the present case. The other ambit of challenge is denial of natural justice. It represents the only area of challenge available to the plaintiff.

8 It is perhaps necessary in this particular case to make it abundantly clear that error on the part of the Magistrate (even if it be error in point of law) will not assist the plaintiff. The relevant statutory provisions exclude it as a ground of appeal.

9 The plaintiff has sworn a number of affidavits. Largely, the material relied on by him falls within the category of submission. The court also has before it the transcript of the Local Court proceedings.

10 The material amply demonstrates that these proceedings are misconceived. The submissions deal with a number of matters. It suffices to mention just certain of them.

11 The plaintiff complains that he was unfamiliar with the procedure before the Local Court. He states that he relied on his filed statements and did not make sufficient verbal submissions. It is also asserted that had he been informed that the parties were allowed to make extended verbal submissions, he would have retained the services of a solicitor.

12 A reading of the transcript and other documentation makes it abundantly clear that the plaintiff was not denied natural justice. He was given a fair hearing. The Court informed him of its procedure (see, inter alia, the notice of listing dated 8.12.04). Such notice enclosed a copy of the practice note. The plaintiff’s submissions in this court confirm that he was aware of its contents. He was given a reasonable opportunity to present his case.

13 A reading of the transcript reveals that he was invited to and did make submissions. Indeed, what was said by him was roughly equivalent to what was put on behalf of the defendant. These oral submissions were additional to the lengthy and detailed written submissions that had been earlier placed before the Magistrate. It might be added for completeness that the plaintiff did not seek any adjournment for the purposes of obtaining legal representation and that he still sees no need to have the benefit of legal representation.

14 The plaintiff’s material asserts that others (including Mr Ishak) have said things which misled him as to procedure. The assertions are denied by Mr Ishak. These assertions, even if true, would not establish denial of natural justice by the Magistrate.

15 The plaintiff’s complaints (assuming that they had a sound basis in fact) are not a product of what happened in the Local Court, but of his own misunderstanding or lack of knowledge.

16 There are other complaints (including complaint that the Magistrate did not give due weight to the evidence relied on by the plaintiff). As has been earlier said, these complaints do not assist the plaintiff in these proceedings. The merits of the dispute cannot be re-litigated in this court.

17 The judgment of the Magistrate is of some length. It demonstrates a careful analysis of the evidence and submissions. It reveals that she had regard to the competing versions of how the accident came to pass and that she preferred the version given by the defendant. The Magistrate also noted that the defendant’s version was consistent with independent evidence. On any view, the judgment sufficiently disclosed her reasoning process.

18 This is just another case in which a plaintiff is unhappy with findings of fact made in the Local Court and comes to this court in a misconceived endeavour to have a rehearing. Unfortunately, so many of these cases involve very small sums.

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

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