Jambrecina v Tom Elvin Pty Ltd

[1999] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S176 of 1998

B e t w e e n -

DRAGO JAMBRECINA

Applicant

and

TOM ELVIN PTY LTD

Respondent

Application for special leave to appeal

GAUDRON ACJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 1999, AT 12.01 AM

Copyright in the High Court of Australia

MR D. JAMBRECINA appeared in person.

GAUDRON ACJ:   I should indicate that the Deputy Registrar certifies that the respondent in this matter does not wish to be represented at the hearing and will submit to any order of the Court save as to costs.

MR JAMBRECINA:   Right, okay.  Your Honour, my complaint is twofold.  One is on an applicant in a magistrate court because he gave a false information and, secondly, I feel the magistrate has really – have not hear the case properly.  Instead, he just decide to split the claim in half.  He did sort of put himself in a position that he knows all about the job we were dealing with.  In fact, he really did not understood the thing and he just made an error and he did not make a right decision.  For that reason - - -

GAUDRON ACJ:   You know, Mr Jambrecina, that this Court can only take on questions of law.  So, how do you formulate your question of law and can you point to the position where you say the magistrate made that error of law?

MR JAMBRECINA:   Of law?

GAUDRON ACJ:   Yes.

MR JAMBRECINA:   If I am a lawyer it would probably be easier but I really do not know that part.  Put it this way, all I know that the decision the magistrate made on were incorrect.  For instance, he says he believe that I could not do that job in one day anyhow which is totally incorrect, even though I pointed to him that we had only about 20 cubic metres to do and it takes only about eight minutes to do each metre which is less than three hours.  Yet he brought in a…..question which started well after 3 o’clock in afternoon.  So, he just sort of did not understood the case and yet he make a decision.

He was in a hurry.  He just says, oh, well, he has to make a decision and that is it.  I can appeal to high authority if I do not like it.  So, I decided to go up to the high authority as he suggested to me.  I did heard that to Supreme Court and the Federal Court the question of law is not apply but ‑ ‑ ‑

GAUDRON ACJ:   You see, the trouble is, Mr Jambrecina, that by and large – although there are some requirements – it is up to a judge or magistrate to determine whose evidence he accepts or rejects; what facts he accepts or does not accept.  By and large they are not questions of law.

MR JAMBRECINA:   But I thought that is where the higher courts are to rectify the mistakes of the lower court judges.

GAUDRON ACJ:   Mistakes of law.

MR JAMBRECINA:   Well, whatever they are called, but to me – put it this way:  to me is a simple fact that I have asked the concrete to be supplied; the concrete was supplied; it was not any good.  That involved cost to me and I feel that I should not pay that.  How could I translate that in numbers in law, I do not know.

GAUDRON ACJ:   For the moment, I do not see how you can either, but that does not help you I am afraid.

MR JAMBRECINA:   It does not help me.  Well, I really do not know any more.  I can point to your Honour few points where he made those errors but are they errors of law or simply unfair or how would you interpret them?

CALLINAN J:   I am afraid they are not errors of law, Mr Jambrecina.  That is your trouble.  That is your problem.  They are not errors of law.  If what you say about them is right, at most, they are errors of fact and that is not to say that what you say about them is right, but they are not errors of law.  Therefore, the court below was right not to give you leave to appeal because that court can only hear matters of law.

MR JAMBRECINA:   Well, what about a point of fairness?  In the Federal Court the judge says it is a question of law – of principle, and another matter is of fairness.  Now, I cannot see how it could be fair to me if the judge did not want to resolve the problem, find out what actually was the problem.  Instead of, he just says, “Well, we’ll split this claim in half.”  Now, I cannot see how - - -

GAUDRON ACJ:    Well, I do not think, in fairness, that is what he did say, did he?

MR JAMBRECINA:   Sorry?

GAUDRON ACJ:   From your perspective, he may have split the claim in half but that is not what he said he was doing.

MR JAMBRECINA:   In fact, in one point, yes, he says, exactly, “We’ll split this one in half.”  I will have to find where it is.

GAUDRON ACJ:   Is it page 20 where he says:

I am not going to make any order as to the filing fee.  We came down the middle a bit on this one.

He is not saying that is what he was doing.  He was saying that is how it worked out and because that is how it worked out there would be no order as to “the filing fee” or “as to pre-judgment interest.”  He was using that to your advantage.

MR JAMBRECINA:   Well, he did not advantage me much.

CALLINAN J:   And you see, he did say earlier, Mr Jambrecina, that he was not convinced about what you said.  That is at line 5 on page 20.  Anyway, we cannot look at those matters because they are factual matters.  We can only look at matters of law and there are not any here.

MR JAMBRECINA:   Well, that is a funny way to look at it because I think we live on the point of facts.  So, you know, I do not understand, put it this way.  To me, that is not right.

CALLINAN J:   Well, in this case that is what the legislation says.  In this case it is quite clear that the appeal is only in relation to matters of law.

MR JAMBRECINA:   Why then that magistrate does not know that?  Why then he says, “Well, go and appeal”, if he knew - - -

CALLINAN J:   No, you said to him you were going to appeal and - - -

MR JAMBRECINA:   No, he says first.  He says, “If you don’t like what I says, you go and appeal on me.”

CALLINAN J:   If you do not like what he says, if you can find an error of law, then appeal.

MR JAMBRECINA:   He did not say “an error of law”.

CALLINAN J:   No, but that is what - - -

MR JAMBRECINA:   He just says - - -

CALLINAN J:   No.  Well, that is the law that there has to be an error of law.

MR JAMBRECINA:   Well, it is a shame there is so much waste of time and energy going for, really, slackness of the magistrate.  He should have looked further and find the facts of the problem instead of just say, “We

have to go.  I have to make a decision.  That is it.”  That is why I thought the high authority should look into the slackness of this magistrate and punish him or at least allow appeal, look it through and say, “Look, this was not right to do.”  So, I just cannot understand.

GAUDRON ACJ:   Well, Mr Jambrecina, the fact is that the only right of appeal is limited to a question of law.  That is the legal fact.  There is not an appeal in every case in this country.  That is a fact.  The legal system works on the idea that the desirable result is that appeals be limited.

MR JAMBRECINA:   Well, if they really look at it that way then they should say, “Look, you can’t” – this is only small claim court.  That should never left a small claim court.  It should have come back to a magistrate and resolved the thing there and then, rather than go the Supreme and Federal.  You know, the legislation looks to me then is out of step totally.  I really believe that high authorities can do something to rectify the situation from the lower courts.  If you say you cannot, well, that means I been coming here for nothing.  Thanks for your time.

GAUDRON ACJ:   Thank you, Mr Jambrecina.

MR JAMBRECINA:   Can I ask you one more question?  You said something about this cost.  You mention – I was not quite get it.

GAUDRON ACJ:   That was in another case, I think.

MR JAMBRECINA:   No, when I - - -

GAUDRON ACJ:   I am sorry.  The magistrate gave you some orders as to the costs of the summons and prejudgment interest.  He was finding for you on some issues because of the way in which the matter had worked out.

MR JAMBRECINA:   I believed that when you mentioned that there was a letter from the opposite side - - -

GAUDRON ACJ:   I am sorry.  The opposite side, sorry, says that they “submit to any order of the Court save as to costs.”

MR JAMBRECINA:   “Save the cost”, sorry, okay.

GAUDRON ACJ:   Yes, thank you, Mr Jambrecina. 

The application arises out of a disputed civil claim in the ACT Magistrates Court.  It raises only factual questions and it raises no question of legal principle suitable to attract the grant of special leave.  Accordingly, the application is dismissed.

AT 12.13 PM THE MATTER WAS CONCLUDED