Hartnett v Hoyn

[2005] NSWSC 1108

CITATION:	Hartnett v Hoyn & Anor [2005] NSWSC 1108
HEARING DATE(S):	2 November 2005
JUDGMENT DATE :	9 November 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; the exhibits may be returned.

CATCHWORDS:	Application to appear at hearing by telephone link - application not granted - subsequent non-appearance - alleged denial of natural justice - discretion of court to determine procedure to be followed - relevant considerations.
PARTIES:	Beau Timothy John Hartnett (Plaintiff) David Hoyn & Denise Bartkowiak (Defendants)
FILE NUMBER(S):	SC 10890/05
COUNSEL:	Mr C Wilson (Qld) (Plaintiff) Mr A Porthouse (Defendants)
SOLICITORS:	Hartnett Lawyers (Qld) (Plaintiff) Daly Lawyers (Defendants)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	230/2004
LOWER COURT JUDICIAL OFFICER :	Guy LCM

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`IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass


9 November 2005

10890 of 2005 Beau Timothy John Hartnett v David Hoyn & Anor

JUDGMENT

1 His Honour: The plaintiff is a solicitor. He carries on his practice at Surfers Paradise in Queensland.

2 The plaintiff was a defendant in proceedings before the Local Court at Albion Park in this State. The proceedings were brought in the Small Claims Division of that Court.

3 The Local Court followed the procedure set out in its then practice note for the dealing with of small claims (Amended Practice Note No. 3/2001). A pre-trial review was fixed for 24 November 2004. It was to be conducted by a Registrar. Prior arrangements were made with the Registrar to enable the plaintiff to participate in that review by telephone. Directions were given concerning, inter alia, the filing of witness statements. A hearing date was allocated (11 February 2005). No directions were sought or made concerning the procedure to be followed at the hearing.

4 There is a lack of relevant evidence as to where this review took place and as to what facilities were available.

5 On one version of what was said from the bar table, the pre-trial review took place in the office of the Registrar and that it had certain telephone facilities.

6 Some negotiations took place between the parties and this brought about a delay in the exchanging of witness statements. An exchange of the respective statements did take place prior to the hearing.

7 In early February 2005, the plaintiff commenced the taking of steps to arrange his appearance at the hearing by way of telephone link. A letter (dated 2 February 2005) was sent to the Albion Park Local Court Registry. It contained, inter alia, the following:-

Whilst Beau Hartnett would like to attend the hearing in person, it is impractical due to the time and cost involved. However, Anne Challenger, who has the conduct of the matter, will be available for phone contact. We can also coordinate Mr Beau Hartnett to be available for phone contact if required. Please advise in this regard.

8 Catherine Anne Challenger (who is a solicitor and had the conduct of the matter on behalf of the plaintiff), deposed, inter alia, to the following:-

On 10 February 2005 at 9.28am, Registrar Butler telephoned the firm’s office and left a message requesting I return his phone call. I immediately returned the call and spoke to Mr Butler, who stated, or words to the effect: “The Magistrate doesn’t do phone conferences and you will not be required to be available for phone contact tomorrow”, referring to my written request to participate in the hearing by phone link. I indicated my disappointment to Mr Butler at this decision, stating words to the general effect that Mr Hartnett wanted the firm to be able to take part in the hearing by telephone, that we thought this would be possible and that I was wanting to make submissions and be able to respond to the Magistrate – and have Mr Hartnett here to give evidence by phone. [Affidavit C A Challenger 23 August 2005, paragraph 28]

9 The material suggests that at some stage a decision was made by the plaintiff that it would be impractical for him to personally attend the hearing (when that took place remains unclear). It also suggests that it was contemplated that Ms Challenger would be available for phone contact. The plaintiff himself was only to be so available if required.

10 On 10 February 2005, Mr Daly (the solicitor for the defendants) provided Ms Challenger with information concerning certain points he intended to raise at the hearing on the following day (it was said that this was done because Mr Daly realised that Ms Challenger would not be appearing at the hearing). Following the receipt of this material, written submissions were prepared on behalf of the plaintiff and forwarded to the Registry.

11 The proceedings came before Mr Guy LCM on 11 February 2005. There was no appearance by or on behalf of the plaintiff. Whilst the Magistrate proceeded ex parte, the transcript reveals that what took place followed the format of an informal hearing. In the course of that hearing, the Magistrate had regard to the material relied on by the plaintiff. The transcript records the following:-

The defendant solicitors have opted not to attend for various reasons but have submitted correspondence and associated material, the most recent matter being a fax received on 10 February. I note that I have read all that material and considered the arguments they have advanced in reaching my decision. [Tr p4]

12 Following the conclusion of the hearing, the Magistrate delivered a judgment. In that judgment, he considered the merits of what had been presented in the material relied on by the plaintiff. He was comfortably satisfied as to certain matters (including the lack of merit in the plaintiff’s presentation and the acceptability of the defendants’ submissions). Accordingly, he found in their favour. Judgment was entered in the sum of $7,129.30 together with interest. The plaintiffe was also ordered to pay costs.

13 There is a lack of relevant evidence as to where this hearing took place and as to what facilities were available. Again, a version from the bar table said that it took place in court. What telephone facilities were available is unknown.

14 The plaintiff has commenced proceedings in this court. A summons was filed on 11 March 2005. An amended summons was filed on 27 May 2005. It seeks to challenge the decision of the Magistrate.

15 The plaintiff alleges that he was denied natural justice. Primarily, he says that he was denied an opportunity to participate in the hearing before the Magistrate and/or to make submissions on the evidence. This argument was supplemented at short notice by a further submission. The effect of the further submission was that there had been an additional denial of natural justice by reason of the Magistrate acting on statements made from the bar table by Mr Daly.

16 The plaintiff also sought to challenge the decision on other bases (not including jurisdictional grounds). These grounds allege error on the part of the Magistrate.

17 The aim of Parliament in establishing the Small Claims Division of the Local Court was to provide cheap and expeditious procedures for the disposition of small claims. The intention was to bring about finality in their determination. The ambit of challenge was made deliberately small.

18 There is no challenge available on the basis of error (be it error of law or otherwise). The many arguments mounted on these grounds are so doomed to failure and accordingly require no consideration.

19 I should add for completeness that at the hearing, counsel for the plaintiff accepted that the challenge available to his client was restricted to denial of natural justice.

20 What will be a denial of natural justice usually falls to be determined on the circumstances of the particular case before the court. The onus of establishing such a denial rests with the plaintiff.

21 In the circumstances of this case, I am not satisfied that there has been a denial of natural justice. The plaintiff had the same opportunity as any other litigant to attend the court on the hearing day and present his case. He chose (for personal considerations) not to take advantage of that opportunity. Any difficulty occasioned by the lack of success of his application flowed from the lateness of his approach to the court.

22 The procedure to be adopted at the hearing of any particular action in the Small Claims Division is a matter to be determined by the court. What is to be adopted in a particular case is a discretionary exercise. In the exercise of that discretion, regard will be had, inter alia, to the objectives of the Division (providing litigants with a fast, cheap, informal but final resolution of their disputes) and the particular circumstances of the case before the court.

23 The plaintiff says that there was error in the exercise of that discretion. Whilst the error alleged was not spelt out with precision, it was said to arise from a failure to take his personal circumstances into account (inter alia, because the plaintiff conducted a practice from Surfers Paradise and would be put to disproportionate expense if a personal attendance was required).

24 I do not accept that discretionary error has been made out. Further, even if a different view had been taken on that matter, I do not consider that in the circumstances of this case the alleged error would give rise to a denial of natural justice.

25 Some uncertainty surrounds whatever decision making process took place in relation to the telephone link application. Whatever it was, it took place a day before the hearing. It was dealt with administratively and not in court. The plaintiff contends that there was a decision not to allow the plaintiff to appear by telephone link which was made by the Magistrate who came to hear the claim. That may or may not be factually accurate. Such evidence as there is falls into the vague and ambiguous category and comprises Ms Challenger’s version of what was said to her by the Registrar (one possibility is that the plaintiff was simply advised by the Registrar as to court policy). Fortunately, in the circumstances of this case, the uncertainty is not of great importance.

26 There was no evidence as to whether or not what was proposed by the plaintiff has been utilised in the hearing of proceedings in the Small Claims Division of the Local Court in this State. If it has been so utilised, it is likely to be of rare occurrence.

27 In my view, the circumstances of this particular case did not call for a departure from what is usually done in the Division. It seems to me that the earlier usage of a telephone link in the review was not a matter of any significance. The use of a telephone link in a pre-trial review, as opposed to a hearing of the proceedings, involved different considerations. Parties are expected to attend court if they wish to defend proceedings brought against them. Decisions made as to the conduct of a defence often involve financial considerations. A local agent could have been employed if it had been thought necessary to do so.

28 It may be added that what was sought to be done by the plaintiff could be regarded as an audacious endeavour to commit the Court and the other parties to a procedure that suited his personal considerations. He may be thought to have been seeking special treatment. What he had in mind can be seen to have the potential to be rife with abuse.

29 In any event, this was not a case where the interests of the plaintiff were disregarded. Mr Daly, knowing that the plaintiff would not be present, gave him advance notice of arguments upon which the defendants would be relying. The plaintiff was given the opportunity to make submissions and he took advantage of that opportunity. Further, the Court had regard to the plaintiff’s material in reaching its decision.

30 I shall briefly return to the supplementary submission. In my view, it was also devoid of substance.

31 I do not consider that a reading of the transcript and other material supports the submission made on behalf of the plaintiff. I do not accept the contention that the Magistrate acted on statements from the bar table. In my view, there was evidence to support the findings made by him.

32 Even if a different view had been formed on that matter, I do not consider that there would have been a denial of natural justice. In the circumstances of this case, it could only give rise to an error in the findings made by the Magistrate.

33 It needs to be borne in mind that the plaintiff was not the only party entitled to natural justice. The Magistrate was also obliged to ensure that natural justice was extended to the other parties. What was being proposed by the plaintiff may have had the propensity to place them at a disadvantage.

34 In my view, these proceedings are misconceived. They are devoid of merit.

35 The summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.

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