Hungerford v Cantor

[2020] NSWDC 326

District Court

New South Wales

Medium Neutral Citation:

Hungerford v Cantor [2020] NSWDC 326

Hearing dates:

24 June 2020

Date of orders:

24 June 2020

Decision date:

24 June 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 86

Catchwords:

PRACTICE AND PROCEDURE – appeal from decision of the Small Claims Division of Local Court – judgment against plaintiff for damaging defendant’s residential property – application for adjournment of hearing in this Court made by plaintiff – whether utility in adjournment having regard to reason for adjournment and the nature of appeal to this Court – unusually lengthy procedural history – plaintiff unrepresented in Local Court because of absence of solicitor – unsuccessful adjournment application to Assessor – whether plaintiff was denied procedural fairness by Local Court because of refusal to accede to adjournment application

Legislation Cited:

Civil Procedure Act2005 (NSW), ss 14, 56, 57, 58, 59, 60

Crimes (Appeal and Review) Act2001 (NSW), s 17

Local Court Act2007 (NSW), ss 35, 39, 41

Uniform Civil Procedure Rules2005 (NSW), rr 14.14, 50.4, 50.5, 50.16

Cases Cited:

Aon Risk Services Limited v Australian National University (2009) 239 CLR 175

House v The King (1936) 55 CLR 499

Stojanvoski v Parevski [2004] NSWSC 1144

Texts Cited:

New South Wales Legislative Assembly, Hansard, 22 November 1990, p 10416

Category:

Principal judgment

Parties:

Mr J Hungerford (Plaintiff)
Ms S Cantor (Defendant)

Representation:

Counsel:
Plaintiff appeared in person
Mr A Djurdjevic for the defendant
Solicitors:
Gells Lawyers for the defendant

File Number(s):

2019/265906

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Small Claims Division

Citation:

Unreported

Date of Decision:

29 July 2019

Before:

Assessor Connelly

File Number(s):

2017/317871

Judgment

1. This proceeding is in the nature of an appeal against a decision of an Assessor in the Small Claims Division of the Local Court of New South Wales given on 29 July 2019. The appeal was commenced by Summons filed on 26 August 2019.

2. The dispute arises from a motor vehicle crash which occurred on 11 December 2015. The defendant in this proceeding was one of the two owners of land in Castle Hill which, the owners alleged, was impacted by a car driven by the plaintiff. The land owners sued the plaintiff for property damage.

3. The dispute was determined by the Local Court (Assessor Connelly) on 29 July 2019. The Assessor found in the favour of the land owners and ordered that the plaintiff pay them the sum of $12,281.31. That sum was inclusive of interest, costs and other fees.

4. The plaintiff, who is unrepresented, brings an appeal against the Local Court’s decision pursuant to s 39(2) of the Local Court Act 2007 (NSW). The plaintiff only joined one of the land owners, contrary to the rule of court (r 50.5 of the Uniform Civil Procedure Rules2005 (NSW) (‘UCPR’)) which is expressed in peremptory terms. I would have been inclined to add the other home owner as an additional defendant, but because of the reasons and conclusion that I have come to, it is unnecessary to do so in the circumstances and I dispense with that requirement (Civil Procedure Act2005 (NSW), s 14).

5. The sole ground of appeal has been described as follows:

“My solicitor was in hospital suffering a heart attack. I asked for an adjournment but was refused and I could not get my file of my solicitor and had to proceed without my evidence in file for the court or witness”

6. As I understand this ground of appeal, the plaintiff’s complaint is that because of the Assessor’s decision to reject the plaintiff’s adjournment application, the plaintiff had to proceed with his defence and he was ill-equipped to present that case.

THE PLAINTIFF’S FURTHER ADJOURNMENT APPLICATION

7. To the disinterested observer reading this judgment, it would be a surprise to him or her to learn that litigation commenced in the Small Claims Division of the Local Court of New South Wales, concerning a claim for damage to property, allegedly sustained in December 2015, and quantified at a sum of approximately $10,000, has not yet been finally disposed of. Having regard to the obligations upon the Court, practitioners and litigants (including self-represented litigants) under ss 56 – 60 of the Civil Procedure Act, these bare circumstances that I mention suggest that something has gone amiss.

8. On 15 June 2020, when the matter was called before me, the plaintiff, who I repeat is unrepresented, sought an adjournment. It soon became apparent that there was quite a protracted procedural history to the matter and, coming as I did to the matter in ignorance of that history, I did not understand the plaintiff’s presentation. A short adjournment, of one week, was allowed in order to provide the plaintiff with the opportunity to properly state his case as why any protracted adjournment would be allowed. Opportunity was given also to the defendant to serve any affidavit in response.

Case management in this proceeding to date

9. Tedious though it may be, because of the nature of this case, it is necessary to set out the history of the case management of this proceeding, since it provides part of the context to the determination of the current adjournment application.

10. After this proceeding commenced on 26 August 2019, there were no less than three mentions of this matter before Taylor SC DCJ on 14, 15 and 22 October 2019. Notes on the Court’s file suggest that the number of these appearances was caused by the failure of the parties, on different days, to appear in Court.

11. At any rate, it appears that the matter was next the subject of mention before Taylor SC DCJ on 1 November 2019. The plaintiff was directed to serve a document listing the grounds of appeal.

12. The matter next came before Registrar Gardiner on 28 November 2019. On that occasion, the defendant complained that the document filed by the plaintiff did not comply with the direction made on 1 November 2019. On 28 November 2019, the Registrar referred the matter to O’Rourke SC DCJ, who, without making additional directions to progress the matter, adjourned the matter to the judge hearing civil matters on 3 February 2020.

13. The proceeding was the subject of a mention before Norton SC DCJ on 3 February 2020. Her Honour made directions that day for the service of evidence, including that the plaintiff had to order the transcript of the proceeding before the Local Court. Transcripts of what occurred in the case management of the case in this Court on 14 and 22 October 2019 (i.e. before Taylor SC DCJ) were also ordered. The matter was next listed for mention on 23 April 2020.

The direction for the plaintiff to obtain Local Court transcripts himself

14. But before that mention, on 14 February 2020, the plaintiff requested (by email to) the Associate to Norton SC DCJ to provide assistance to him to obtain transcripts from the Local Court. That request was met with the response by the Associate, by email, that she had made request that the transcripts from the District Court proceeding be provided, but that it was for the plaintiff to obtain transcripts from the Local Court. As I read the Court file, this was the first occasion when the plaintiff indicated a concern about obtaining any transcript from the Local Court.

15. On 15 April 2020, the Associate to Norton SC DCJ sent another email message to the plaintiff and the defendant’s solicitor informing them that transcripts of what has occurred in the case management of this proceeding, i.e. in District Court, had been obtained. The Associate had noted that her Honour had directed the plaintiff to obtain whatever transcripts he sought from the proceeding in the Local Court from the Local Court Registry.

16. Thus, by the middle of April 2020, although the Court’s assistance had been given to the parties to help them retrieve transcripts of what had occurred at mentions of this matter in this District Court proceeding, the clear indication was supplied (twice) that it was a matter for the plaintiff to obtain whatever transcripts he wanted to obtain from the proceeding in the Local Court.

17. The proceeding was then the subject of mention before Registrar Gardiner on 23 April 2020. The plaintiff appeared in person that day. On that occasion, the Registrar advised the plaintiff that it was essential for him to chase up the status of the relevant transcripts prior to the next mention of the proceeding in the sittings in Parramatta commencing on 27 April 2020.

18. This was (at least) the third indication when the Court had explained to the plaintiff that it was up to him to obtain transcripts of the Local Court proceeding.

19. There were further mentions of the matter on 27 April 2020 and 4 May 2020 before Norton SC DCJ. The plaintiff appeared (via telephone link) on both of those occasions. On the last of those mentions, the matter was fixed for hearing in the June 2020 sittings.

20. On 28 and 29 April 2020, and again on 4 May 2020, there were numerous emails sent by the plaintiff to the Associate to Norton SC DCJ showing his attempts to obtain the transcript before the Local Court. On the face of those emails, it appears that the plaintiff had difficulty on account of his seeking a waiver from paying a fee to the Local Court for the transcript and the need to establish that he was entitled to such waiver.

21. This, then, was the position when the matter came before me on 15 June 2020 and when the plaintiff sought another adjournment.

22. The defendant’s Counsel said that if the application for adjournment was to be based upon the plaintiff’s need to obtain a copy of the transcript of the proceeding before the Local Court on 29 July 2019, the plaintiff had already had ample opportunity to obtain the transcript. His failure to obtain the transcript, at least since 3 February 2020 – when he was directed by Norton SC DCJ to obtain the transcript – provides no valid basis for an adjournment.

23. I note that in the plaintiff’s affidavit, dated 18 June 2020, no further reference is made to his being unable to obtain a transcript of what was before the Local Court on 29 July 2019.

24. I agree with the defendant’s submission that the matter of raising the transcript of the Local Court does not afford proper ground for a further adjournment of the hearing in this matter, having regard to the multiple directions made to the plaintiff to acquire it. Whilst acknowledging that an application was made for a waiver of the fee for the transcript, there is no evidence before the Court that even if such application for a waiver was refused, the plaintiff could not find the means to pay for it. Accordingly, any concern about obtaining access to the transcript of the Local Court hearing, as a basis for further adjournment, may be put aside.

Current justification for adjournment: a subpoena to Allianz?

25. When he appeared before me on 15 June 2020, the plaintiff appeared to change tack. He now said that he needs to have the time to have a subpoena issued to an insurer.

26. This was elaborated in the plaintiff’s affidavit, affirmed on 18 June 2020, in support of his application for adjournment. In this affidavit, the plaintiff commenced (by paragraph 2) by re-stating his ground of appeal. At paragraph 3, he noted certain early appearances in Court after this proceeding had commenced. Towards the conclusion of the paragraph, however, he referred to a need to subpoena his file from Allianz Insurance. Allianz Insurance is the insurer who is bringing this claim in subrogation after having paid out the defendant.

27. At paragraph 3 & 4 of his affidavit, the plaintiff went on to elaborate that he needed to issue a subpoena to Allianz. At paragraph 4, he deposed to the following:

“… my file and phone recordings very important (sic) from Allianz as they have told me many times this claim has been closed due to sufficient evidence to prove it was hit and run but somehow been reopened and ended up in court. With the evidence I have in my position and the phone recordings and file from Allianz will definitely prove I was not at fault”.

28. At paragraph 5, the plaintiff requested the Court’s assistance to obtain this information. He deposed that he had requested information from Allianz but Allianz had refused to provide it. The plaintiff was, in effect, asking the Court to issue the subpoena to Allianz. Pending the response by Allianz to any such subpoena, the proceeding should be adjourned.

Consideration of the plaintiff’s adjournment application

29. When this hearing commenced today, Mr Hungerford confirmed that he sought further adjournment on the basis set out in his affidavit of 18 June 2020; being his perceived need to obtain documentation from Allianz.

30. The application for adjournment has to be considered in the context of: (a) the background to the case, and the nature of the defence to the claim made by the plaintiff in the Local Court and (b) the nature of this appeal. Further, it needs to be considered against the principles of case-management as they appear in ss 56 – 60 of the Civil Procedure Act. Part of those principles involves the expeditious resolution of disputes in a cheap way; although, of course, in a way that is consistent with the interests of justice. These principles apply to all civil proceedings in this state, including the Local Court.

31. When considering the necessity of this adjournment by reference to the issues that were before the Local Court, and as elaborated later when considering the merits of the appeal, part of the defence which the plaintiff sought to run in the Local Court proceeding was that although his car had collided and caused damage to the front masonry wall, he was not at fault. This was because his car had itself been struck by another car and it was following that collision that his car impacted on the defendant’s property. Independently of this proceeding, he was the subject of a criminal charge of driving with a high range PCA but that charge was dismissed on 21 October 2016. More pertinently, the plaintiff says that Allianz, the ‘real’ party in this civil proceeding, was aware of all of this but for monetary reasons, simply maintained the claim to recover monies so that it would not be left out of pocket after paying out the defendant (and the other land owner) on her property damage claim under the insurance policy.

32. As I understand him, the plaintiff apprehends that if he can obtain access to documents on ‘his’ file held by Allianz, he might be able to substantiate the assertions that he made about Allianz – that is, that it was aware that he had been struck by another car and his exoneration of a drink driving charge and that it only pursued the claim in the Local Court for ulterior or improper purposes.

33. The first problem for the plaintiff is that the evidence that is admissible on this appeal from the Local Court must be relevant to the ground of appeal stated in the summons. This is apparent from the relevant court rule (r 50.4 of the UCPR). At any rate, the content of that rule was reinforced to the plaintiff in the order made by Taylor SC DCJ on 1 November 2019. That ground, reasonably construed, indicates that the plaintiff’s complaint about what had happened in the Local Court was that, as he was caught unexpectedly by surprise by his solicitor’s illness, he could not present, or adequately present, his case and evidence as it was. There is nothing in the ground of appeal to suggest that any complaint was made about the Assessor making a decision on the basis of evidence not yet in existence as the plaintiff might have hoped it might be if he had the further opportunity to have a subpoena issued by the Local Court to Allianz. To my observation, reading this very voluminous court file, it appears to be the case that the idea of having a subpoena issued to Allianz has arisen only in the course of the proceeding in this Court.

34. The second, and related, problem for the plaintiff is that whether his apprehension that Allianz might have documentation that might have assisted his defence of the claim in the Local Court is right or wrong, it does not assist him to prosecute this appeal in this Court. It seems to me that the plaintiff believes or expects that he is able to run an appeal from the Local Court’s decision completely afresh, that is, by putting before this Court not only the evidence that he had the opportunity of putting in the Local Court, but also such new, or ‘fresh’ evidence that he might procure, by the use of this Court’s processes, if necessary, even if that evidence was not available to him at the time of the hearing in the Local Court.

35. Such belief is misconceived. Although the nature of this proceeding is an appeal, by way of rehearing, of the decision of the Assessor in the Small Claims Division (r 50.16 of the UCPR), it is an appeal of a very limited kind. The appeal is brought pursuant to s 39(2) of the Local Court Act, which relevantly permits a right of appeal where there has been a denial of procedural fairness.

36. There is, however, no indication in that legislation, which circumscribes the right of appeal from decisions of the Small Claims division of the Local Court to the District Court, that this Court is to hear an appeal on the basis of evidentiary material that could have been, but was not obtained, in the Local Court, being admitted as fresh evidence in this proceeding. There is no statutory provision to that effect in the Local Court Act; nor any rule of Court which authorises this Court’s receipt of new evidence on an appeal[1] .

    1. Compare this, say, with the ability of an offender in a criminal charge, convicted in the Local Court, being able to rely upon fresh evidence on an appeal against conviction in the District Court: Crimes (Appeal and Review) Act 2001 (NSW), s 17.

37. The proposition that this Court could have regard to fresh material not before the Small Claims Division of the Local Court is also not supported by extrinsic material. The legislative history explaining the nature of this Court’s jurisdiction on appeal was explained in the following way by the Attorney General’s Second Reading speech to the Legislative Assembly, Hansard, 22 November 1990, p 10416:

“There will be no appeal of any kind from decisions of the Small Claims Division other than for lack of jurisdiction or denial of natural justice. The prohibition of appeals is quite necessary if a party is to be able to litigate in the division without the risk of suddenly escalating costs. It is also fair to argue that if the taxpayer is to fund a forum for people who decide to litigate over small matters, it should be a once-only forum and the public purse should not have to contribute to the immense costs of providing an appellate procedure.”

38. For completeness, I note the further difficulty for the plaintiff is that if he wanted to assert in the Local Court against the insurer that it was bringing a claim for ulterior purposes, he may have had an arguable defence of abuse of process. But that is a defence that needed to be pleaded (r 14.14 of the UCPR) so as not to take the defendant by surprise, and give it opportunity to respond to such defence. Technically, in my view, the pleading of this defence had to come first in the Local Court before a subpoena could even be issued – otherwise the issue of subpoena would improperly have been occasioned for the purpose of the plaintiff (in this Court) undertaking a fishing expedition.

39. For these reasons, the plaintiff’s apprehended need to have a subpoena issued to Allianz provides no proper basis for the hearing of the appeal in this Court to be adjourned, since the plaintiff has no entitlement to rely upon fresh evidence that could have been, but was not procured from third persons in the lead up to the hearing in the Local Court.

40. There being no utility in adjourning the proceeding, it is unnecessary for me to canvas the discretionary considerations that would otherwise need to be considered as to whether it is in the interests of justice to permit the adjournment. Having regard to considerations of delay, the quantum of the claim, the circumstances that costs (for the defendant) continue to be incurred by the defendant and the absence of explanation why the subpoena could not have been issued in the Local Court, the plaintiff would have faced formidable difficulty in persuading the Court why the adjournment should be granted even if, contrary to my view, the Court was empowered to review the Local Court’s decision in the unlimited fashion apparently contended for by the plaintiff.

38. As it is, the plaintiff’s application for further adjournment is refused.

39. I will now proceed to consider the merits of the appeal.

PROCEDURAL CHRONOLOGY

43. As I have noted, a complaint about a denial of procedural fairness experienced in the Local Court requires close attention to what occurred in the Local Court in the lead up to and on the day of the decision, as that is apparent on the face of the evidence before the Court.

44. The solicitor for the defendant, Ms Richards, swore an affidavit relevant to this procedural chronology. Its content was unchallenged. I accept the correctness of what is asserted.

45. The plaintiff has also supplied further email correspondence arising in the lead up to the hearing in the Local Court, which I will refer to.

The pleadings

46. The affidavit of Ms Richards, sworn on 22 April 2020, annexed the pleadings in the Local Court. They revealed the commencement of the proceeding in the Local Court on 20 October 2017. The Statement of Claim referred to an incident occurring on 11 December 2015 in which it was alleged that the vehicle owned and driven by the plaintiff (in this proceeding) collided with the land owner’s premises in Castle Hill. The claim was for damage for the cost of repairs of the premises which was quantified in the sum of $8,936.73.

47. Almost a year later, on 16 August 2018, the plaintiff filed a Defence in the Local Court proceeding. As I read the Defence, it was to the effect that the plaintiff had already been tried in criminal proceedings relating to a hit and run incident. It is not clear to me, when reading the Defence alone, how this linked to the allegations of the Statement of Claim, but the effect of what is contained in the Defence seems to have been intended to be that because the matter had been dealt with in a criminal proceeding, and because the plaintiff was acquitted, then he was immune from any civil proceeding. I note that this Defence appeared to be filed by the plaintiff himself, and not by a legal practitioner.

Evidence tendered in the Local Court proceedings

48. Ms Richards annexed to her affidavit the evidentiary material that was before the Assessor in the Local Court. This included material relied upon by both the owners and by the plaintiff.

49. Specifically, this comprised two witness statements relied upon by the land owners: one from George Gryllis (1 April 2019); and the other from Darren Cantor (1 April 2019). Mr Gryllis was a technical consultant with Allianz Australia Insurance Ltd (‘Allianz’). He stated that Allianz had been notified by the home owners of property damage to their home. Allianz thereafter retained a firm, Crawford and Company, to identify the rectification works needed to repair the damage done, which appears to primarily have been damage to the masonry wall out the front of the premises, and to arrange for the repair. Putting the matter very briefly, a quote was received from a builder, called Urban Building Solutions, work was performed, and Allianz paid out the cost of the repairs.

50. Mr Cantor’s witness statement indicated that, as one of the home owners, at 9:30pm on the date of the incident, whilst watching television, he heard a screeching of tyres followed by a loud bang. He went outside and identified the plaintiff’s vehicle. The plaintiff was observed to be bleeding from his head. Mr Cantor said he smelt alcohol on the plaintiff’s breath and noticed that there was an open alcoholic can between his legs and the balance of a six pack of cans on the front passenger well. There then followed an account of (attempted) conversations with the plaintiff, and the arrival and involvement of the police. The police took a report of what had occurred.

51. Ms Richards’ affidavit also annexed photographs of the front of the defendants’ premises which she deposed had been served by the plaintiff. The significance of the photographs is referred to below. But among the photographs was a statement via email, dated 1 April 2019, from what appears to be one of the plaintiff’s email addresses, sent to another email address of the plaintiff.

52. On its face, the content of the email appeared to provide the plaintiff’s account of what had occurred on 11 December 2015. The gist of the statement was assertions by the plaintiff that:

1. admitted that his vehicle collided with the front brick wall of the defendants’ premises;

2. explained that the impact was caused by his vehicle being ‘rammed off the road’ by a different vehicle as part of a ‘hit and run’ accident;

3. the other driver had left the scene and he (the plaintiff) was unable to get the car’s licence plate as it was too far away;

4. he had been acquitted of a charge of drink-driving (high range PCA). He had not been charged with negligent driving;

5. one of the defendants, Samantha Cantor, gave a false statement to police and merely assumed what had happened;

6. the rectification works went beyond what was necessary to repair the damage actually sustained by his car impacting the front masonry wall. The defendants had taken the opportunity to ‘refurbish the whole of the front of the house and the garden’. The photographs served by the plaintiff, which I referred to earlier, were intended by the plaintiff to prove this;

7. Allianz led the plaintiff to believe that they had accepted his account of what he had told the Court in answer to the criminal charge against him, i.e. that it was the driver of the other car, and not he, who was responsible for the damage to the defendants’ premises;

8. contrary to this assurance, Allianz was only pursuing the civil claim so as to enable it to recover payments made to its lawyers; and

9. since 2016, he has been harassed by Allianz in prosecuting a case it does not believe it can win.

Evidence of case-management and the hearing in the Local Court proceeding

53. Ms Richards deposed that prior to the date when the impugned decision was made, there was an earlier hearing date in the Local Court. That was on 15 April 2019. Without purporting to recount the circumstances, Ms Richards deposed that the plaintiff successfully sought an adjournment by the Magistrate, but a term of the adjournment was that he had to pay the costs of the adjournment (in the sum of $300).

54. The next day, on 16 April 2019, the Local Court issued a notice advising the parties that the proceeding was fixed for hearing on 29 July 2019. Further, and importantly, the notice contained further directions, that: the parties were to file original copy witness statements and documentary evidence and that the last date for the exchange (apparently a reference to service) and filing of the evidence was 15 July 2019 – being 2 weeks before the date fixed for the hearing.

55. Also importantly, this Court notice annexed a document titled ‘Case Management Order’. That document may be described as being in the nature of a pro forma indication of what the Court expected of the parties and what they might expect would occur at the hearing. Given that it is not long, it is reproduced in full below:

“1. Unless the Court makes an order permitting oral evidence to be given at the hearing, the proceedings will be determined on the basis of the written witness statements and other documentary material that is filed and served no later than the date referred to above (i.e. 15 July 2019).

2. The Court may allow any documents produced under subpoena issued with the leave of the Court or produced under a notice to produce to be admitted as evidence.

3. If a party fails to file and serve affidavits and other documentary material at least 14 days before the hearing then the Court may refuse to allow the party to rely on that evidence at the hearing.

4. The hearing will be conducted with as little formality as possible. The rules of evidence do not apply at the hearing.

5. Each party will have the opportunity to attend and make comments and present arguments and provide final submissions on the evidence.

6. If a party fails to attend the hearing the Court may strike out the statement of claim or defence.” (emphasis supplied)

56. It has not been suggested by the plaintiff that he did not receive this statement; or, at least, that it had not been sent to the address contained in the verifying affidavit annexed to his Defence. He appeared to confirm receipt of this notice in Court today.

57. I note that Ms Richards did not appear to refer to or annex to her own affidavit an affidavit of the plaintiff dated 27 June 2018, although that affidavit appeared to provide explanation for why he had not filed a Defence earlier than he did.

58. At any rate, the plaintiff’s Defence filed in the Local Court was filed on 16 August 2018. I also note that there was nothing, of substance, in the earlier affidavit of 27 June 2018, which was not subsequently set out in his Defence in the Local Court proceeding, or set out in the email of 1 April 2019 that I have referred to above. At any rate, if the plaintiff sought to rely upon the contents of that affidavit of 27 June 2018, there was no impediment in his doing so.

59. In this Court, the plaintiff seeks to rely upon certain communications which may or may not have actually been placed before the Assessor, and some of which assuredly were not. That information was the following emails:

1. an email from the NSW Courts and Service Centre to the plaintiff, dated 15 November 2017, purporting to prove that he was acquitted of the high range PCA drinking charge on 21 October 2016;

2. an email from ‘Jen’, on behalf of Mr Kristofferson, from the firm Kristofferson Legal Services, dated 8 July 2019, explaining that Mr Kristofferson was ill and in hospital (since 5 July 2019) and therefore unable to take his matter, but that the plaintiff’s counsel, Mr Bailey, was expecting to hear from the plaintiff; and

3. an email, dated 25 July 2019 at 11:01am (a Thursday), from the plaintiff, foreshadowing that an application for an adjournment would be made because of the illness of his solicitor. The plaintiff said that it was impossible for him to find someone else to represent him at the hearing on 29 July 2019 (a Monday). There was no indication of any response to this.

60. I note that there is no evidence as to whether or when Mr Kristofferson had been retained by the plaintiff; although I infer from the reference in the email of 8 July 2019 to ‘unable to take on your matter’ that it would have been in relatively close proximity that first contact had been made. The content of the email suggests that Mr Kristofferson had not actually been committed to representing the plaintiff on 29 July 2019; although, on the other hand, it might be inferred that Mr Bailey of Counsel had been briefed.

61. There was nothing in the email of 25 July 2019 to indicate whether Mr Bailey of Counsel was willing to appear at the hearing on 29 July 2019, on the plaintiff’s behalf, without Mr Kristofferson (or anybody else) acting as his instructing solicitor.

62. The plaintiff has not put forward any other evidence as to what occurred at the hearing.

63. Ms Richards did not annex to her affidavit the transcript of what occurred at the hearing on 29 July 2019, although she did annex the orders. In her affidavit, she deposed to the evidence that was tendered in the Local Court, whose content I have summarised. As indicated, that included photographs which the plaintiff had served.

64. Relevantly, the plaintiff was ordered to pay the defendants the sum of $12,281.31. That figure included the principal of the claim for repairs, interest, certain fees and solicitor costs.

65. Before me today, the plaintiff did not draw my attention to other evidence to support the appeal.

Consideration

66. The issue is whether, on the basis of the evidence before the Local Court that has been put before this Court, the plaintiff was denied procedural fairness.

67. As many authorities attest to, there is no fixed standard for what constitutes natural justice or procedural fairness. But the concept fundamentally has two aspects: one is the requirement for an impartial decision-maker. No question of that is raised here. The other aspect is the ‘hearing’ rule: the issue being whether a person whose rights are affected by a decision-maker has the opportunity to be heard prior to the decision being made. Absent express delineation as to what the concept entails in the legislation, the scope of the hearing rule depends upon the nature of the court or tribunal which made the relevant decision and the legislation and rules of court by which that court or tribunal is authorised to make decisions.

68. In this case, the decision of the Court subject to appeal was the Small Claims Division of the Local Court. Decisions in that division of the Court are made by magistrates or assessors. Section 35 of the Local Court Act indicates that decisions are to be made without excess formality or technicality. Rules of evidence do not apply. There is no right to cross-examine witnesses and the Court may inform itself how it sees fit. These legislative indications help explain why, on a great many occasions, litigants in that division of the Court are unrepresented, as the costs of legal representation may be disproportionate to the value of a claim or defence and, moreover, there are limits on what costs can be recovered even on a successful outcome for a party.

69. The Local Court’s Practice Note LC Civ 1 (cl 24.3) indicates that hearings in the Small Claims Division are to be determined on the basis of documentary evidence previously served and filed. Ordinarily, parties in that forum do not have the right to call witnesses.

70. I accept that, as a matter of principle, the Assessor’s decision to refuse an adjournment, may give rise to a denial of natural justice, but that is only where a party is thereby deprived of the opportunity to presents its case. Whether it can be said that a party is so deprived depends upon the circumstances.

71. The plaintiff’s complaint here is, in substance, that he was caught by surprise by the unexpected illness of his solicitor, which prevented his lawyer presenting his case for him. Instead, he had to present the case himself. As it happens, he said he did not have the evidence that he says he would like to have presented to the Assessor.

72. I find it difficult to accept, even as a matter of fact, the plaintiff’s complaint that he was ‘caught by surprise’. By his own emails, the plaintiff was on notice of an illness suffered by the solicitor who, at least, he was hoping to have represent him. This was three weeks before the scheduled hearing date. Although the plaintiff naturally would have hoped that Mr Kristofferson would recover in time, there is no evidence of any planning, between 8 and 25 July 2019, who might represent him if the latter did not recover in time.

73. The evidence is silent about the extent to which, if at all, the barrister, Mr Bailey, who had been apparently briefed, or at least had been willing, at some point, to render assistance to him, continued to be available to appear on the date of the hearing.

74. By 25 July 2019, when it was clear that his preferred solicitor was unable (because of illness) to appear for him, the plaintiff still had the better part of 2 business days, plus the weekend, to prepare his case if he was required to do so in the absence of his solicitor. There is no evidence from him as to what, if any preparation, he undertook during that time.

75. It appears that prior to his attempt to retain Mr Kristofferson, the plaintiff represented himself. There is no suggestion that he was unaware of the need, whether Mr Kristofferson was available or not, for him to put forward the evidence to support his case. As I have said, I accept he saw the notice from the Court regarding the need to serve evidence. I infer that he received that notice. He was at least aware of the need to serve evidence to support his case. As I have noted, at the hearing on 29 July 2019, he relied upon some photos to support his case.

76. True it was that on the Thursday before the day of the hearing (a Monday), he appeared to flag an application to adjourn to his opponents, but the evidence does not suggest any consent to any such application. The plaintiff had no right to assume that consent from his opponent would be forthcoming. He also had no right to expect that whomsoever he appeared before in the Local Court on 29 July 2019 would grant him an adjournment. When cases are fixed for hearing, with directions for the service of evidence, parties are expected to be ready to present their cases on the day. That is whether or not it may be touch and go whether a solicitor retained by them is available or not.

77. Though he would have preferred to have a lawyer represent him, there was a limit to what the lawyer might do for him: he or she was not entitled, for example, to cross-examine the land owners’ witnesses even if he or she wanted to. He or she was not entitled to call witnesses for the party. Further, the time to have served evidence fixed by the standard court directions had passed; although it is theoretically possible that perhaps some further limited scope might have been given to the parties to persuade the Court to adduce further evidence. But generally, the time spent during the hearing before the Assessor would have essentially been devoted to argument by the parties, on the basis of evidence served before the hearing which could not be challenged owing to the restriction on cross-examination. That was consistent with the Local Court’s procedural rules, in the Small Claims Division, to conduct hearings as briefly, efficiently and as cost-effectively as possible.

78. This is not a case where, for example, the plaintiff could not speak or understand English. There was not what might be called any ‘constitutional’ reason why he could not have presented his case, on account of any physical or intellectual incapacity, in presenting argument, even if he would have preferred a lawyer to have done it for him.

79. The plaintiff’s problem was a ‘situational’ difficulty: it was that, on the day of the hearing, he was not organised. This was, as indicated by my reference to the emails in July 2019, substantially a result of his own making; by his not responding to, or anticipating, the prospect of his preferred legal practitioner being able to appear once he was placed on notice of the practitioner’s illness.

80. I infer that, notwithstanding that he had sought to, but failed to, obtain the defendants’ consent to an adjournment, he assumed or expected that he would receive the indulgence by the Assessor or Magistrate. In that assumption or expectation, he was disappointed. He could not, or possibly chose not, to present his case as well as he would have liked. That is different to being deprived by the Assessor of the opportunity to present his argument at all.

81. As I have said, however, parties have no rights to have proceedings adjourned. Particularly where they are fixed, it may take exceptional circumstances to have a hearing adjourned. That is certainly the practice in this Court. Whether or not adjournments are granted in exceptional circumstances is a discretionary decision affected by a variety of considerations. The circumstances extend beyond what a particular party might regard as being fair or just, to other considerations, including (but not limited to) the efficient use of the Local Court’s resources, its interest in not having disruption to its lists, the interests of other litigants awaiting their cases and the strain, economic and otherwise, imposed on the insurer conducting this case, by reason of further delay: see Aon Risk Services Limited v Australian National University (2009) 239 CLR 175 at [26]-[29], [94]-[102]; and more generally, ss 56-60 of the Civil Procedure Act.

82. I agree, with respect, with what Master Malpass said in Stojanvoski v Parevski [2004] NSWSC 1144 at [22], that one reason why adjournments in the Small Claims Division should be rare is that the prejudice or inconvenience resulting from them do not ordinarily result in the imposition of a costs order on the party who obtains the adjournment.

66. As previously indicated, the Assessor’s decision here to refuse the plaintiff’s adjournment application is substantially unreviewable per se. The plaintiff must persuade the Court on the basis of the evidence that at the hearing that followed the refusal of the adjournment application, he was denied the opportunity to be heard, in the sense of being denied the opportunity to refer to admissible evidence and to present argument in favour of his case.

67. There has been nothing placed before the Court to sustain any serious contention that, following the refusal of his application to adjourn, the Assessor deprived the plaintiff of the opportunity, on 29 July 2019, to present to the Local Court such evidence, and to make such argument, as he would wish to make.

68. Although it is unnecessary to say so, in the view I have taken of the limited nature of the Court’s jurisdiction on appeal, I would add that the plaintiff did not point to matters that would establish any House v The King error affecting the Assessor’s discretionary decision to refuse him an adjournment[2] .

    2. House v The King (1936) 55 CLR 499.

ORDERS

86. The appeal against the Local Court’s decision is dismissed. Accordingly, the Court’s orders are:

1. Pursuant to s 41(2)(d) of the Local Court Act2007 (NSW), the plaintiff’s appeal, commenced by summons dated 26 August 2019, is dismissed.

2. The plaintiff is to pay the defendant’s costs of the proceeding, including costs reserved.

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Endnotes

Decision last updated: 24 June 2020