Hardy Bros (Earthmoving) Pty Limited v Michael Terrence Turton and Sharon Louise Turton

[2000] NSWSC 443

CITATION:	Hardy Bros (Earthmoving) Pty Limited v Michael Terrence Turton and Sharon Louise Turton [2000] NSWSC 443
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 400111/00
HEARING DATE(S):	8/5/00
JUDGMENT DATE:	9 May 2000
PARTIES :	Hardy Bros (Earthmoving) Pty Limited v Michael Terrence Turton and Sharon Louise Turton
JUDGMENT OF:	O'Keefe J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	247/97
LOWER COURT JUDICIAL OFFICER :	Mr P A Moon

COUNSEL :	Mr D J Thorley - for plaintiff Mr G L Raffell - for defendant
SOLICITORS:	Messrs Carmody Crampton Young NSW - for plaintiff McCabe Partners Young NSW - for defendant
CATCHWORDS:	Local Court - Practice - Power of Local Court to set aside judgment after Statement of Confession of judgment - Leave to appeal to Supreme Court - Effect on discretion of small amount of claim - Effect of delay even if arguable case
LEGISLATION CITED:	Local Courts (Civil Claims) Act, 1970 Local Court Rules Part 12 r 2; Part 26 r 3; Part 33 r 9
CASES CITED:	Brougham v Dominelli Ford Hurstville Pty Limited (Supreme Court, unreported, 17 February 1993, Campbell J) Coles v Burke (1987) 10 NSWLR 429 Jakamarra v Kracauar (153 ALR 276)
DECISION:	1. Summons dismissed; 2. Notice of Motion dismissed; 3. The plaintiff, Hardy Bros (Earthmoving) Pty Limited is to pay the costs of both the Summons and the Notice of Motion.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O'KEEFE J

Tuesday, 9 May 2000

400111/00 - HARDY BROS (EARTHMOVING) PTY LIMITED v MICHAEL TERRENCE TURTON AND SHARON LOUISE TURTON

JUDGMENT

1    HIS HONOUR: Before the court are two matters. One is a summons seeking an extension of time within which to lodge an appeal combined with which is an application for leave to appeal against an interlocutory order made by a magistrate in the Local Court at Young on 25 June 1999. By that order the magistrate set aside a judgment entered on 5 February 1998 by the Registrar of the Local Court following a Statement of Confession for an amount of $1,000 which had been filed in the Local Court in accordance with the rules of that court. The confession related to a claim for $9,955. In addition there is an ancillary application to set aside an order of the Magistrate made on 31 January 2000 by which he refused to set aside his own decision of 25 June 1999.

2    The second matter is an application for a stay of the proceedings in the Local Court. That application was made by Notice of Motion which, by leave, was filed in court on 8 May 2000 and sought a stay in respect of a further hearing of the matter in the Local Court scheduled for 9 May 2000.

3    The matter was argued before me yesterday and it was incomplete at approximately 4.30pm I declined to grant the stay.

4    The matter has a long history. On 2 October 1997 Mr and Mrs Turton (The Turtons) sued Hardy Bros (Earthmoving) Pty Limited (Hardy Bros) in the District Court at Young claiming an amount of $9,205 together with interest, in respect of work done for Hardy Bros. The work consisted of excavation in a national park at Sydney and the claim was that the Turtons had:

(a) performed 237.5 hours work at South Head at a rate of $50 per hour;

(b) performed 190 hours work at Bradleys Head at a rate of $50 per hour.

5    From the total resulting from the addition of those two figures various credits were deducted and to the resultant a small addition was made in respect of extra work performed.

6    On 14 January 1998 Hardy Brothers filed a confession in the sum of $1,000 in respect of the Turtons' claim and raised defences in respect of the excess in which they denied the extent of the hours of work claimed to have been performed by the Turtons and claimed that the hours alleged were greatly inflated and did not relate to any contract between the Turtons and Hardy Bros. In addition, Hardy Bros brought a cross-claim in respect of the Turton’s work claiming $11,834 together with interest as the amount due on the cross-claim.

7    The solicitors for the Turtons did not, within the time specified by the Rules of the Local Court, take any action to dispute the confession. As a consequence, on 5 February 1998 the Registrar of the Local Court entered judgment in favour of the Turtons in the sum of $1,000.

8    The entry of judgment came to the attention of the then solicitors for the Turtons, Gordon Garling Moffitt. They conceded that when the defence, cross-claim and confession were forwarded to them, they overlooked the confession and as a consequence failed to file a Notice Refusing to Accept an Amount Confessed To. However, on 20 March 1998, they advised the solicitor for Hardy Bros that if there was no consent to the setting aside of the judgment, they would move to set it aside.

9    No motion was filed at that time and according to the Turtons, there was no contact between them and their then solicitors between March 1998 and January 1999. As a consequence, the matter was removed from Gordon Garling Moffitt and transferred to McCabe Partners. This transfer was complete by early February 1999, but the file in the matter was not forwarded by Gordon Garling Moffitt to the now solicitors for the Turtons until 30 April 1999.

10    Following correspondence between the solicitors for the parties, a notice of motion dated 2 June 1999 was filed in the Local Court seeking to set aside the judgment entered pursuant to the confession. The motion was heard on 25 June 1999 and the Magistrate set aside the judgment. Following this, the matter was listed for call-over on 20 August 1999 and was set down for hearing at the Local Court at Young on 23 November 1999. On that date the matter was part heard and adjourned to 31 January 2000. When the matter came before the Local Court on 31 January 2000, Hardy Bros sought to set aside the Magistrate's order of 25 June 1999, but that motion was dismissed and the substantive hearing resumed, again becoming part heard. This hearing was adjourned to 9 May 2000.

11    From the foregoing, it can be seen that there has been considerable delay throughout the whole of the proceedings, in particular, delay between the refusal of the Magistrate on 31 January 2000 to reverse his decision of 25 June 1999, setting aside the judgment entered and the filing of the application for stay of proceedings.

12    In my opinion, the application for stay comes too late. If Hardy Bros had wanted a stay of proceedings, they should have applied prior to the commencement of the hearing in Young, that is, prior to 23 November 1999. To apply six months later than that whilst in the meantime allowing the hearing to proceed, is virtually having one's cake and eating it too, and in any event, gives rise to significant prejudice to the other party, the Turtons, who have now had two days of hearing and have prepared for a third day's hearing.

13    The situation is made even worse by the failure of Hardy Bros to make application even after the second day of hearing on 31 January 2000. They waited a further three months and more before making that application for stay which was in fact made at the eleventh hour.

14    For these reasons, I confirm my decision that there should be a refusal of any stay of proceedings in the Local Court at Young between the Turtons and Hardy Bros.

15    The primary matter before the court is a Summons for an extension of time for lodging an application for leave to appeal against the decision of the magistrate on 25 June 1999 and his refusal on 31 January 2000 to set such decision aside. That Summons was filed on 21 March 2000 and was followed by an Amended Summons of 28 April 2000. The Summons was thus filed more than ten months after the decision to which it relates; more than two years after the entry of the original judgment in the Local Court; and more than three months after the Magistrate refused to revoke his decision of 25 June 1999.

16    In the meantime, there have been two full days of hearing of the matter in the Local Court and so the parties have had an opportunity to gauge their prospects in that matter. It would, in my opinion, be quite unjust and inappropriate in those circumstances to, as it were, attempt to put the clock back to June 1999. In the time that has passed since then the situation of the parties has changed, not merely by reference to costs, but also by reference to the exposure of the strengths and weaknesses of the cases of the respective parties in the matter. In effect, there has been a preview of the case for two hearing days. Such a situation necessarily involves prejudice. Part of that prejudice relates to costs. Even if an order for costs were to be made, they would be costs in accordance with the scales of the Local Court. Such an award would not necessarily compensate the party in whose favour it was made for the costs in fact incurred.

17    Furthermore, the fact than one of the parties at least has had an opportunity to gauge how well or how badly it is doing before the magistrate in Young, involves a prejudice to the other party that cannot be overcome by an order for costs. These reasons are, in my opinion, sufficient to ensure that the discretion which may be exercised in relation to the grant of leave to appeal out of time should be exercised against the grant of such leave.

18    One other matter which, in my opinion, is relevant to the exercise of discretion, is the amount involved. In the instant case the application is concerned with an amount which, even ignoring the confession, is less than $10,000. Where there is no serious question of principle which may be applicable to other cases or some other like circumstance, it is, in my opinion, material to the exercise of discretion to consider the Court's time and listing arrangements and the rights of other litigants in weighty matters who are delayed in the hearing of their matters because of the time taken in what are essentially small debts actions. In arriving at my conclusion in relation to the exercise of discretion, this factor would be an additional reason for refusing to exercise the discretion in favour of Hardy Bros. However, in arriving at the conclusion to which I have already come in the instant case, I have not relied on this element relating to the size of the claim. It was unnecessary to do so.

19 Counsel for Hardy Bros relied on the decision of Brougham v Dominelli Ford Hurstville Pty Limited (Campbell J, unreported 17 February 1993). In that case a Magistrate had held that he had no jurisdiction to set aside judgment under Part 12 of the Rules of the Local Court following the filing of a statement of confession (Part 12 Rule 2 sets out provision). Campbell J was of the opinion that this conclusion was wrong. He held that Part 26 of the Rules of the Local Court applied to such a judgment. However, he also held that, in the light of the observations by Kirby P in Coles v Burke (1987) 10 NSWLR 429 at 427, the criteria specified in Part 26 Rule 3(1), namely, irregularity, illegality and contrary to good faith, were the sole or exclusive bases under that rule. Since Part 12, Rules 2 and 3 had no application to the case before him and since Part 33 Rule 9 did not comprehend the entry by the Registrar of judgment pursuant to a confession, Campbell J held that the Magistrate had arrived at the correct decision. Be that as it may, the considerations particular to the present case referred to above, in my opinion, mean that it is unnecessary to examine the matters considered by Campbell J or to reach any conclusion in relation to them, and I refrain from doing so. However, even if that decision were to be adopted to the instant case, I am of opinion that for the reasons stated above, the summons should nonetheless be dismissed.

20 Counsel for Hardy Bros has further relied on a decision in the High Court, Jakamarra v Kracauar & Anor (153 ALR 276) in which the High Court dealt with an appeal from the Full court of the Supreme Court of Western Australia. The rules governing appeals to the Full Court of the Supreme Court of Western Australia require that an appeal be entered for hearing before the expiration of four weeks from the institution of the appeal. There were some procedural difficulties with the appeal and finally the Full Court refused the application for extension of time and dismissed the appeal for want of prosecution stating that there were four factors to be considered in exercising the Court's discretion to extend time:

1. The length of the delay.
2. The reason for delay.
3. The merits of the appeal.
4. Whether there was an arguable case.

21    In that case the Western Australian Supreme Court did not have before it all the evidence in the matter, and so the High Court determined that it was not possible for the Full Court to come to a conclusion that the appeal in question had no prospect of success. It is significant to note in that case that the High Court did not - and one would not have expected it to - depart from or question the four criteria which were enunciated by the Western Australian Court as being relevant to the exercise of a discretion in relation to the granting or refusing of an extension of time within which to lodge an appeal. In that case the court in Western Australia had founded its decision on the basis that the appeal would not succeed when it did not have before it sufficient material to make that decision. It was for that reason that its decision was reversed.

22    As will be seen from the foregoing, I have not based my decision on the factor relied on by the Western Australian Court. My decision is based on the principle that the length of the delay and the reasons for the delay are such that, combined with the prejudice to the parties that has come about as a result of that delay, the discretion should not be exercised in favour of Hardy Bros. The merits of the appeal are not matters which, in my opinion, would weigh the balance in favour of granting the extension of time. I have already indicated that the case on which Hardy Bros relies, namely Dominelli Ford Hurstville Pty Limited, even accepting that it be a correct statement of the law, was not sufficient to tip the balance in favour of granting the application.

23    The formal orders of the court are:

1. Summons dismissed.
2. Notice of Motion dismissed.
3. The plaintiff, Hardy Bros (Earthmoving) Pty Limited is to pay the costs of both the Summons and the Notice of Motion.

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Last Modified: 12/18/2000