Jiang v Dion Group Projects Pty Ltd

[2024] NSWDC 225

District Court

New South Wales

Medium Neutral Citation:

Jiang & Ors v Dion Group Projects Pty Ltd [2024] NSWDC 225

Hearing dates:

13 June 2024

Date of orders:

20 June 2024

Decision date:

20 June 2024

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Extend the time for the plaintiffs to file the Summons in this matter up to and including the date of filing, being 7 December 2023.

(2)   Summons dismissed.

(3)   Order the plaintiffs to pay the defendant’s costs of and incidental to the Summons.

(4)   Notice of Motion filed by the defendant on 19 February 2024 dismissed.

(5)   Order each party to pay his, her or its own costs of and incidental to the Notice of Motion.

Catchwords:

CIVIL PROCEDURE – summons filed out of time – self-represented plaintiffs – extension of time granted

APPEAL – local court small claims division – decision of assessor – whether there was a denial of procedural fairness – appeal dismissed

Legislation Cited:

Local Court Act 2007 (NSW), ss 35, 36, 37, 38, 39(2)

Uniform Civil Procedure Rules 2005 (NSW), r 1.12

Cases Cited:

Stojanovski v Parevski [2004] NSWSC 1144

Category:

Principal judgment

Parties:

Chun Jiang trading as Jiang Cleaning (First Plaintiff)
Ming Jiang (Second Plaintiff)
Tim Jiang (Third Plaintiff)
Dion Group Projects Pty Ltd (Defendant)

Representation:

Counsel:

T Jiang (self-represented) (Plaintiffs)
J Pokoney (Defendant)

Solicitors:

Fortis Law (Defendant)

File Number(s):

2023/00443376

Judgment

Introduction

1. The three plaintiffs, who are members of the same family, operate a cleaning business. The defendant requested the plaintiffs to perform cleaning work on a construction job at Baulkham Hills. The plaintiffs invoiced the defendant for the work done but did not receive payment of any invoice in the amount of $3,190. The plaintiffs commenced proceedings in the Local Court, Small Claims Division, at Blacktown.

2. The defendant admitted that the plaintiffs did the work but asserted in a Defence that the plaintiffs failed to exercise reasonable care and caused damage to glass-panelled windows. The defendant claimed a set-off resulting from the alleged damage to the windows. The defendant alleged that the costs to repair the damage to the windows was $2,904 and further costs incurred in replacing windows amounted to $10,320.19. The defendants filed a Cross Claim seeking damages for the amounts particularised in the set-off pleaded in the Defence.

3. The matter came on for hearing by Assessor Harvey on 30 March 2023. For reasons discussed below, the Assessor adjourned the hearing. The second day of the hearing before Assessor Harvey took place on 29 June 2023. The Assessor reserved her judgment.

4. On 31 August 2023 the Assessor gave judgment as follows:

1. Judgment for the plaintiff for $3,343.

2. Judgment for the defendant/cross claimant for $14,832.19 including costs.

3. The amounts of the judgments are set-off and the cross defendants/plaintiffs are to pay to the defendant/cross claimants the difference within 28 days.

5. The plaintiffs appealed to this court by a Summons filed in the District Court at Parramatta on 7 December 2023.

6. The orders sought in the Summons were:

1. Leave to appeal from the whole of the decision below.

2. Appeal allowed.

3. All judgment or orders of the court below be set aside.

4. District Court to review the court below and grant procedural fairness.

5. District Court to review hearing transcripts and make a decision that is non-biased/fair.

7. The appeal grounds set out in the Summons were:

1. Court below misplaced important documents plaintiff filed for the hearing.

2. Plaintiff requested for the case to be heard as is, but the court below rejected and adjourned the first hearing.

3. The judicial officer Assessor Harvey denied the plaintiff a fair representation by refusing opportunities for them to speak/explain.

4. The judicial officer Assessor Harvey provided the defendant with legal advice about documents to file for a successful case, which is strictly against court principles.

5. The judicial officer Assessor Harvey reached their decision that was contrary to evidence or common belief.

6. See attachment “A”.

8. Attachment “A” to the Summons alleged that the plaintiffs had not received procedural fairness from the Assessor.

The Summons Was Out of Time

9. Attachment “A” to the Summons provided an explanation why the Summons was filed outside the time limit of 28 days. After the judgment on 31 August 2023 by Assessor Harvey, no copy of the order was ever forwarded to the plaintiffs, despite a request made to the Local Court for such a copy. The plaintiffs did not receive the paperwork until 28 September 2023. The plaintiffs knew they only had 28 days to file an appeal. Being legally unrepresented, they made the mistake of lodging an appeal online in the Supreme Court on 28 September 2023. The plaintiffs followed up with the Supreme Court both by telephone and by email. It was not until 5 December 2023 that the plaintiffs received notice from the Court of Appeal that they had filed in the wrong jurisdiction, and that their remedy would be to file in the District Court. The plaintiffs filed in the District Court two days later.

10. The plaintiffs require an extension of time to have this court deal with their Summons. I propose to grant an extension of time pursuant to the broad and general power to do so contained in r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Counsel for the defendant properly acknowledged to the court that he could not point to any prejudice if an extension of time were granted.

11. The defendant filed a Notice of Motion in this court on 19 February 2024 seeking an order that the proceedings be summarily dismissed. That motion was heard simultaneously with the plaintiffs’ Summons appealing from the Local Court.

Evidence before the District Court

12. The evidence and other documents tendered by the parties were as follows:

1. PX 1 – Affidavit of Chun Jiang dated 21 February 2024.

2. PX 2 – Transcript dated 29 June 2024.

3. DX 1 – Affidavit of J Skaf dated 19 February 2024 (which included the transcript of the first day of the hearing before the Assessor).

4. MFI 1 – Written Submissions for plaintiffs.

5. MFI 2 – Written Submissions for defendant.

6. MFI 3 – Copy of legislation and an authority relied on by the defendant.

Appeals from the Small Claims Division of the Local Court

13. Section 35 of the Local Court Act 2007 (NSW) (LC Act) provides that the jurisdiction of the Local Court sitting in its Small Claims Division may be exercised by an Assessor. Proceedings in the Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits. The rules of evidence do not apply. An assessor may inform himself or herself on any matter relating to proceedings being heard in such manner as he or she thinks fit.

14. Section 36 of the LC Act provides that an assessor is not to give judgment or make a final order unless the assessor has brought, or has used his or her best endeavours to bring, the parties to the proceedings to a settlement acceptable to the parties.

15. Section 38 of the LC Act provides that all judgments and orders of the court made in the Small Claims Division are final and conclusive, subject to an appeal brought pursuant to s 39(2).

16. Section 39(2) of the LC Act provides as follows:

“A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.”

17. The appeal pursued in this matter is limited to an allegation of denial of procedural fairness.

First Day of Hearing Before Assessor

18. The transcript of the first day of the hearing, being 30 March 2023, is an annexure to DX 1. In this section of the judgment, references to page numbers are references to the transcript of 30 March 2023.

19. The Assessor commenced by stating that she did not have any evidence filed by the plaintiffs in support of their claim or in defence of the Cross Claim (Tcpt 1/37). The Assessor said that she did have three statements from the defendant/cross claimant.

20. The plaintiffs informed the Assessor that they had provided a witness statement and photos to show the tools which had been used to clean the windowpanes (Tcpt 3/4). The solicitor who appeared for the defendant said that she had not been served with any witness statements or any documents from the plaintiff/cross defendant (Tcpt 3/7). The Assessor confirmed her understanding that the court had not received any (Tcpt 4/10).

21. The Assessor said that not only did she not have a witness statement from the plaintiffs, but that there were “evidential lacunas by the defendant”. The Assessor said she was not giving anybody an opportunity to fill in gaps. The Assessor noted that there was no independent report for the defendant, and that the self-serving evidence of a director or employee of the defendant “may or may not be sufficient”. The Assessor said that there was no evidence about why something would need to be replaced as opposed to repaired. The Assessor said that there was no justification as to what windows were damaged such as a map or a diagram. All of those remarks were addressed to the solicitor for the defendant (Tcpt 5/32-48).

22. The Assessor then attempted to perform her function under s 37 of the LC Act by conciliating between the parties (Tcpt 6/1-20). The Assessor asked the plaintiffs if they had an email proving that they had sent their witness statement to the court. The plaintiff said that they would like to rely on the evidence in the form of the Statement of Claim (Tcpt 8/15). The Assessor said that the pleading was not evidence.

23. The Assessor then moved back into conciliation mode and said that she had pointed out the difficulties in the plaintiffs’ evidence, as well as the difficulties with the defendant’s evidence. She said that was a reason to try to negotiate a settlement. The plaintiffs said that they did not wish to have settlement discussions to resolve the matter (Tcpt 9/28-39).

24. The Assessor told the plaintiffs that if the hearing was to proceed, there was no evidence before the court for the plaintiffs, but they could seek an adjournment (Tcpt 13/20).

25. The plaintiffs said to the Assessor, “forget about statement and then can we just go ahead, please?” (Tcpt 14/41). The Assessor counselled the plaintiffs that they were making a mistake, because while they said that they had a statement of Ms Gao, that statement was not before the court and hearsay evidence could not be given from the Bar Table (Tcpt 15/5).

26. After encouraging the parties to discuss settlement, the plaintiffs again said that they wanted to proceed with the hearing, in the absence of any evidence. The plaintiffs said that they believed the evidence would come to light during the hearing. The Assessor told them that it would not, because there was no direct evidence apart from that of Ms Gao, and that evidence was not before the court (Tcpt 40/30-41/6). The Assessor expressed her concern that the plaintiffs did not understand their position and cautioned that her decision would be made in the absence of any evidence for the plaintiffs (Tcpt 18/25).

27. The plaintiffs continued to insist that they wanted the hearing to go ahead (Tcpt 20/37).

28. The Assessor indicated that the evidence was closed, but the court would try to locate the evidence that the plaintiff had repeatedly said that they had provided to the court. The Assessor indicated that once the court located that evidence and sent a copy to the defendant, the parties could come back to court and there would be a hearing (Tcpt 21/36).

29. The Assessor indicated that she was going to adjourn the matter on that basis, but the plaintiffs again insisted that they wanted to continue and have the Assessor make a decision. The Assessor said that she was not going to make a decision, because she had been told that the plaintiffs had given evidence to the court, but it was not before her. The Assessor said that she did not want to deny the plaintiffs the opportunity to locate that evidence and to have it taken into account (Tcpt 22/14-23/11).

30. The Assessor started to express the view that it would be a denial of natural justice to proceed (Tcpt 23/17).

31. The ultimate reasons given by the Assessor for adjourning the proceedings are at Tcpt 23/39-24/23. The first reason given was that while the plaintiffs asserted that they had given material to the registry, they could not tell the Assessor when that material was provided. The second reason was that there was said to be a statement of Ms Gao, who is a person “fundamental to the plaintiff’s case” as she was the person who did the work. The Assessor said that she needed to locate that evidence and take it into account. The plaintiffs continued to protest that they wanted the hearing to go ahead. The Assessor said that the parties had run out of time and that she was adjourning the matter for another day, the evidence being closed (Tcpt 25/3).

Complaints Made by the Plaintiffs About the First Day of Hearing

Ground 1 – Documents Misplaced by the Court

32. Most of the time taken up during the first day of the hearing before the Assessor concerned the absence from the court file of a statement by Ms Gao, upon which the plaintiffs wished to rely. Ultimately the absence of this statement, which the plaintiffs insisted they had filed with the court, led the Assessor to adjourn the hearing to a second day. On that second day, the hearing commenced by the Assessor indicating that she now had the statement of Ms Gao and that it was the fault of the court that the statement was not with her during the March hearing. However, there was no evidence to establish that the Gao statement had ever been served upon the defendant prior to the first day of the hearing. It was provided to the defendant between the first and second days of the hearing.

33. The complaint made in relation to the missing statement is set out in par 1.4 of the plaintiffs’ Written Submissions (MFI 1). That paragraph reads:

“The plaintiff should not be held accountable or be disadvantaged because of an error in the courts processing of the submitted evidence. If Assessor Harvey was to adjourn, then the court should absorb the responsibility because they are the one that lost important documents and created the confusions/miscommunication (March Transcript page 6 line 4 and 42 and June Transcript page 5 line 3).”

34. It is unclear what the plaintiffs mean by saying “the court should absorb the responsibility because they are the one that lost important documents”. The simple fact was that the Gao statement, although filed by the plaintiffs prior to the first day of the hearing, was not made available to the Assessor, and had not been served upon the defendant. The Assessor had to do the best she could to achieve justice between the parties and made the decision to adjourn the hearing to enable the statement to be located. There was no denial of procedural fairness occasioned by the court misplacing the Gao statement prior to the first hearing. There might have been a lack of procedural fairness if the hearing went ahead without that statement when the Assessor did not have the statement because the court had misplaced it. Ground 1 has not been made out.

Ground 2 – Denying the Request for the Case to Continue on the First Day

35. This ground is the subject of section 4 of the plaintiff’s Written Submissions (MFI 1). Paragraph 4.1 of the written submissions gives multiple transcript references where Mr Chun Jiang had said, time after time, that he wanted the hearing to proceed on the first day, despite the absence of the Gao statement.

36. Paragraphs 4.2 and 4.3 of the written submissions draw attention to the occasions when the Assessor mentioned that there were time constraints, and the case could not finish and would have to be adjourned. This was a relatively small claim, although one of great importance to the parties. The whole scheme of the Small Claims Division of the Local Court is that the small claims should be dealt with expeditiously, but of course fairly.

37. The Assessor obviously took the view that the plaintiffs were not acting in their own best interests in insisting the hearing go ahead with no evidence on their part. Further, the reference on several occasions to time constraints, were statements made at the point where the Assessor was considering adjourning the matter because it could not proceed in a full and just fashion, because of the absence of evidence for the plaintiffs.

38. The witness statements for the defendant were not placed before this court, nor was the Gao statement. That was appropriate, as this court is not re-hearing the case determined by the Assessor but is only determining whether or not there was procedural fairness. This court is not conducting a trial after a trial to determine whether the outcome might have been different if the case proceeded on the first day, even with no evidence for the plaintiffs.

39. I have come to the view that the Assessor was perfectly entitled to decline to hear the matter, when there was no evidence for the plaintiffs, but the plaintiffs were insisting that they had filed evidence with the court, which had misplaced it. The decision to adjourn a case is a discretionary decision, and in my view the Assessor took into account appropriate matters in exercising her power to adjourn the hearing. Any court or assessor, faced with plaintiffs who are unrepresented, but who are insisting that the hearing go ahead in the absence of evidence which they asserted had been filed, would have seriously considered whether the matter should be adjourned, because a fair hearing could not take place. Ground 2 in the Summons fails.

Ground 3 – Denying the Plaintiffs the Opportunity to Speak

40. The Written Submissions for the plaintiffs (MFI 1) set out in paragraphs 2.1 and 2.2 the transcript references where the Assessor spoke to Mr Chun Jiang along the lines of saying “[c]an I just stop you” or “[n]o, you may not” when he asked to speak. I have carefully read the transcript and had regard to the particular references identified by the plaintiffs.

41. I must take into account that the hearing was one which took place by telephone, which I can say from bitter experience during the pandemic, is a less than ideal method of conducting a trial. The Assessor was asking Mr Chun Jiang from time to time for answers to specific questions, often asking him to identify the email which did send the missing Gao statement to the court. No answer was provided to that request, and when Mr Jiang started to speak about other matters, the Assessor, in my view, quite properly stopped him and asked him to focus on the issue at hand.

42. The overall impression I have from reading the transcript is that the Assessor did give Mr Jiang an opportunity to say what he wanted but did not allow him to interrupt her or to speak over the top of her. It is apparent from the transcript that Mr Chun Jiang took a fairly combative approach to speaking to the Assessor, and in my view, she showed patience and restraint in dealing with him. It is necessary for any judge or assessor, at an appropriate time, to ask a litigant in person, or indeed to ask counsel, to stop speaking and direct their attention to the issue at hand.

43. I do not think that there was any procedural unfairness in the way the Assessor spoke to Mr Jiang, because she was justified in stopping him talking on the occasions identified, but she later gave him the opportunity to say what he wanted on those topics. Ground 3 in the Summons fails.

Ground 4 – Providing the Defendant with Legal Advice

44. I have identified above the passage in the transcript where the Assessor, on the first day of the hearing, spoke to the solicitor for the defendant indicating that there may be a gap in the defendant’s evidence in support of the Cross Claim. Because this court has not been provided with the witness statements before the court in March, or the later statements put before the court in June, I cannot assess whether or not there was indeed a gap in the evidence. The fact that the defendant filed three further statements suggests that there was.

44. Reading the transcript as a whole, I have formed the impression that the address made by the Assessor to the defendant’s solicitor came after the Assessor had pointed out to the plaintiffs that they had no evidence before her on the first day. All of that occurred in the context of then immediately encouraging the parties to negotiate a settlement. It is a time-honoured method of mediators and conciliators to point out to the parties that nothing is certain in litigation, and that a party’s evidence may not come up to proof or establish what is pleaded. In other words, all the Assessor was doing was to point out to the defendant, as well as the plaintiff, that their evidence may not be full and complete, and that that was a very good reason for entering into settlement discussions.

45. It is to be noted that the defendant wanted to enter into settlement discussions and was willing to put an offer for a very modest figure. The intransigent attitude of Mr Chun Jiang was to indicate that the plaintiffs did not wish to negotiate at all in relation to a settlement. That was his right.

46. I do not think that it can be said that the Assessor was descending into the arena and favouring the defendant over the plaintiffs or was giving legal advice. I take the view, upon reading the whole transcript, that this was no more than an attempt to have both parties focus on the uncertainties and vagaries of any litigation, in order to get them talking, so that the Assessor could fulfil her conciliation function under s 36 of the LC Act.

47. The Assessor did say that she would not permit either party to fill in gaps in their case by further evidence. If the Assessor had spoken of gaps in the defendant’s evidence, and then given the defendant the chance to file further statements, without giving the plaintiffs a chance to respond, there may have been an arguable breach of the rules of natural justice. However, the Assessor specifically said that she would not permit either party to put on further evidence. Ground 4 in the Summons fails.

Complaints made by the Plaintiffs about the Second Day of Hearing (29 June 2023)

Ground 5 – Decision Contrary to Evidence or Common Belief

49. I accept the submission of counsel for the defendant that if the Assessor made an error of fact, or an error of law, then such error cannot be the subject of the limited appeal conferred on a losing party by s 39(2) of the LC Act. There is no right of appeal to the District Court from a decision of the Small Claims Division of the Local Court on the ground of an error of law: Stojanovski v Parevski [2004] NSWSC 1144 at [20].

50. In any event, I have not been provided with the evidence which was put before the Assessor, nor have I been provided with any reasons delivered by the Assessor for her ultimate decision. I could not possibly assess whether the decision was contrary to the evidence, but in any event, I would not embark upon that exercise, because even if that occurred, it would not afford the plaintiffs any right to have the decision of the Assessor set aside or overturned.

Ground 6 – Attachment “A”

51. While most of Attachment “A” deals with the late filing of the Summons, there is a matter raised concerning the second day of the hearing. The first paragraph of Attachment “A” says:

“I have been treated with lack of procedural fairness by Assessor Harvey. Assessor Harvey agreed to accept the documents which are outside of the filing time frame from the defendant, and proceeded to provide expert legal advice to the defendant during the hearing.”

52. This last phrase was the subject of Ground 4 in the Summons, which has been dealt with above. The additional matter raised in Attachment “A” concerns the fact that, when the matter came on for hearing for a second day, the Assessor received and considered three additional statements filed for the defendant between the first and second days of the hearing. As pointed out by the plaintiffs the Assessor did say on the first day that all of the evidence was complete, and that all she would consider at any adjourned hearing was the statement of Ms Gao, if it was located, and the three existing statements filed for the defendant.

53. What occurred was something beyond the control of the Assessor. Apparently, between the first and second days of the hearing, the registrar of the court made orders for the service of any further evidence. Pursuant to this direction, but unknown to the Assessor, the defendant served three additional statements in support of its Cross Claim.

54. I read the transcript of the second day of the hearing, which was 29 June 2023. In this section of the judgment, references to page numbers are references to the transcript of 29 June 2023. The Assessor referred to the first day of the hearing and said (Tcpt 2/14-23):

“On the last occasion that I met you on 30 March, I simply asked the registry to find us a new hearing date for 90 minutes and directed the plaintiff to provide the evidence. I did not invite the registry to make further directions for the exchange of evidence. It’s not available in the small claims division. It’s called evidence in reply.

I noted this anomaly when I went onto the system and saw that the defendant cross-claimant had put evidence in accordance with the registrar’s directions on 15 June. That that’s an anomaly. But appreciate that we are now in the position that that was made by the Court.”

55. The Assessor acknowledged that she now had a statement from Ms Gao which had been provided to the court before the first day of the hearing, but which was not on the court file or made available to the Assessor for that hearing. The Assessor described what occurred as an “anomaly in that process” of pre-trial review (Tcpt 6/5-9).

56. The Assessor felt that she was obliged to receive further evidence from the defendant, since the three statements were filed in accordance with a direction made by the registrar of the court, although that was a direction contrary to the basis upon which the Assessor was to embark on the second day of the hearing. The Assessor was careful to point all this out to the plaintiffs and asked whether they still wished to proceed to a hearing (Tcpt 11/6; 11/37).

57. Mr Tim Jiang, speaking on behalf of all of the plaintiffs, indicated that his father Mr Chun Jiang wished to proceed even if this new evidence was received (Tcpt 12/22; 12/28; 23/33). The Assessor then said that the defendant was going to rely upon the three additional statements, and that the plaintiff probably had no evidence to challenge the value of the claim which was about $13,000 (Tcpt 13/10).

58. Once again, the Assessor attempted to encourage the parties to settle the matter (Tcpt 13/45). The Assessor pointed out that she was going to start the hearing on the basis of receiving the three additional statements (Tcpt 14/25-45) and the plaintiffs confirmed that they were willing to make submissions on the basis of the evidence as identified (Tcpt 15/13).

59. The solicitor for the defendant made her submissions and the plaintiffs made their submissions. The matter was then adjourned and judgment was reserved.

60. The Assessor was placed in a difficult position by the orders made by the registrar for the service of further evidence. The Assessor had a discretion whether or not to receive the statements but felt that she was compelled to accept them because the court had given directions permitting further evidence. Procedural fairness was accorded to the plaintiffs, in my view, by the Assessor warning on several occasions that the plaintiffs had to realise that the evidence was going to be taken into account, when they had no evidence in response.

61. If I read Attachment “A” to include a ground that there was procedural unfairness in allowing the three additional statements, I am of the view that such ground fails. Procedural fairness was accorded to the plaintiffs, in that the existence of the statements was drawn to their attention, the reasons why the Assessor was going to admit the evidence were given, and the fact that the plaintiffs had not put on any evidence in reply was apparent. In those circumstances, the plaintiffs being fully informed as to the existence and effect of the additional evidence, they chose to proceed. There was no denial of procedural fairness, and this Ground fails.

Conclusion and Orders

62. As previously recited, an extension of time will be granted to the plaintiffs to file the Summons.

63. For the reasons set out above, the appeal will be dismissed with costs. In relation to the defendant’s motion for summary dismissal, there will be no order, as I have embarked upon a hearing of the appeal on the merits. The parties can bear their own costs of that motion, which would be de minimis in any event.

64. The orders of the court are:

1. Extend the time for the plaintiffs to file the Summons in this matter up to and including the date of filing, being 7 December 2023.

2. Summons dismissed.

3. Order the plaintiffs to pay the defendant’s costs of and incidental to the Summons.

4. Notice of Motion filed by the defendant on 19 February 2024 dismissed.

5. Order each party to pay his, her or its own costs of and incidental to the Notice of Motion.

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Decision last updated: 20 June 2024