Justelius v McIlwraith

[2003] NSWSC 1039

CITATION:	Justelius & Anor v McIlwraith [2003] NSWSC 1039
HEARING DATE(S):	10 October 2003
JUDGMENT DATE:	12 November 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The proceedings are dismissed. The plaintiffs are to pay the costs of the proceedings.
CATCHWORDS:	Incompetent appeal from Local Court - adjournment application made otherwise than by court appearance - alleged failure to read medical material on adjournment application - application to set aside - same Magistrate hears both applications - application to set aside not open to the plaintiffs in the circumstances of the case.
LEGISLATION CITED:	Arbitration (Civil Actions) Act 1983. Local Courts (Civil Claims) Rules 1988, Pt 26 r 3, Pt 26 r 3 (1).
CASES CITED:	Adair v Morahan & Anor (1986) 5 NSWLR 146. Coles v Burke (1987) 10 NSWLR 429. Majetic v Brough (1984) 5 NSWLR 393.
PARTIES :	David Richard Justelius and Averine Beatrix Justelius (Plaintiffs) v Helen McIlwraith (Defendant)
FILE NUMBER(S):	SC 10634 of 2002
COUNSEL:	N/A (Plaintiffs) Mr J Gruzman (Defendant)
SOLICITORS:	In Person (Plaintiffs) Abbott Tout (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	10964 of 1998; 2586 of 1999 Local Court Downing Centre
LOWER COURT JUDICIAL OFFICER :	M Jerram LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 12 November 2003

10634 of 2002 David Richard Justelius & Anor v Helen McIlwraith

JUDGMENT

1 MASTER: Mrs Justelius and the defendant were involved in a motor vehicle accident. In about 1997, the defendant brought proceedings against Mr and Mrs Justelius claiming damages arising out of the accident. These disputes still continue to take up valuable court time and put the defendant to grossly disproportionate expense.

2 A default judgment was obtained by the defendant and later set aside. The matters came before court on numerous occasions. There were many non-attendances by Mr and Mrs Justelius. On some occasions, they provided medical certificates to the Registry. The matter went to arbitration. Mr and Mrs Justelius did not appear (they say that they were sent to the wrong court). An award was made. They then sought a rehearing. The rehearing was fixed for 5 November 2001. Again, there was no appearance by Mr and Mrs Justelius. Again, inter alia medical material was left with the Registry. The matter was dealt with ex parte. The rehearing was discontinued and the award was reinstated. It was in the sum of $18,225.11. It is taken to be a judgment of the court.

3 A Notice of Motion was filed seeking to vacate the orders made on 5 November 2001. It was fixed for hearing on 7 February 2002. Mr and Mrs Justelius appeared. The Notice of Motion was heard by the same Magistrate and dismissed with costs.

4 On 7 March 2002, proceedings were brought in this Court. The proceedings purport to challenge the decisions made on 5 November 2001 and 7 February 2002.

5 The proceedings did not come on for hearing until 10 October 2003. Both Mr and Mrs Justelius then appeared. They were given a full opportunity to present the case that they wished to advance during the hearing.

6 The appeal against the decision made on 5 November 2001 is presently incompetent. It is well out of time. No application is made for an extension of time. The material before the court does not reveal a satisfactory explanation for the gross delay in bringing these proceedings. Accordingly, any such application could be expected to fail for that reason alone.

7 The decision made on 7 February 2002 is interlocutory in nature. It can only be maintained by leave. No application for leave has been made and it seems to me that the granting of leave would not be justified.

8 Whilst the matters already mentioned suffice to dispose of the Summons, for the benefit of the parties and generally, I shall briefly deal with the merits of the appeal and other matters.

9 Although the process does not articulate the grounds of appeal, Mr Justelius (who largely conducted the case on behalf of both plaintiffs) presented two grounds of appeal only.

10 The first related to what happened on 5 November 2001. It is said that the Magistrate failed to properly consider medical material that was made available to her. In support of this contention, the court was referred to various passages appearing in the transcript.

11 In respect to what was done on 7 February 2002, it is said that Jerram LCM should not have heard the application because she had presided at the hearing which took place on 5 November 2001. This contention was advanced in court without any concomitant complaint of bias. I should emphasize that throughout the hearing Mr Justelius clearly and unambiguously took the stance that there was no allegation of bias. The contention seemed to be simply that another Magistrate should have heard the application.

12 There is material which supports the view that both plaintiffs suffer from (and have suffered from) various health problems. Precisely what happened on 5 November 2001 is not entirely clear. Certain detail was provided by Mr Justelius during the course of submissions.

13 After earlier obtaining a medical certificate for his wife, he says that he attended the Court Registry at about 9.00 am on 5 November 2001 and spoke to the Chamber Magistrate. It seems that he gave the Chamber Magistrate a written request for an adjournment and certain medical material which was relied on to support that application. What was given is a matter of some dispute. The Chamber Magistrate was asked to put the material before the Magistrate assigned to the rehearing.

14 Mr Justelius says that he then proceeded to take similar material to the Sheriff (as Mrs Justelius had been summoned to appear for jury duty on the same day).

15 He says that after performing these tasks, he then inter alia attended to his various medical problems (including having some tests done).

16 He says that later in the day (about 3.30 pm), he telephoned the Local Court to ascertain whether or not the material had been put before the Magistrate.

17 The writing seeking the adjournment was dated 4 November 2001. The documentation which was allegedly submitted on behalf of Mr Justelius might be said to be more in the nature of historical material (other matters which were said to be legal grounds were also advanced). There was no medical certificate which said in effect that he was unfit to attend court on 5 November 2001. There was a certificate dated 5 November 2001 which was submitted on behalf of Mrs Justelius (it may have been the only medical material placed before the learned Magistrate). It said inter alia that she was suffering from depression and post-traumatic stress syndrome, that she was undergoing ongoing treatment and that she was therefore medically unfit to attend court. The material provided to this Court contained other certificates given at different times to like effect. The material does not support a view that there had been any recent deterioration in the condition of either of them or any deterioration since the bringing of the rehearing application.

18 Largely, the plaintiffs rely on what appears in the transcript for 7 February 2002. I have carefully read the transcript for both days. It seems to me that when the whole of it is read in context, the contention made by the plaintiffs cannot be substantiated. The position is made clear by Page 3 of the transcript for 5 November 2001 which records the learned Magistrate addressing the letter and certain of the medical material.

19 The learned Magistrate had a discretion to exercise. It seems to me that she considered the relevant material and decided that the matter should be dealt with ex parte and not adjourned. I am not satisfied that there was error in the exercise of the discretion.

20 She was entitled to treat the material that was before her with scepticism. Whatever was before her, it did not establish that Mr Justelius was unfit to attend court. She was also entitled to put weight on the past history of the matter.

21 Generally speaking, it is my view that applications for adjournment should be made in court by the party either in person or by representation and that they should not be sought by merely leaving documents at the Court Registry or by facsimile transmission or telephone. Any need to resort to such means should be extremely rare.

22 What was done by the plaintiffs may be seen as an attempt to force an adjournment and frustrate the other party and the hearing of the matter. It was an approach that had been used many times in the course of the proceedings. If a party chooses not to appear in court, the party takes the risk that the proceedings may be heard ex parte.

23 Last minute applications of such a nature are becoming far too common (particularly by parties who are unrepresented) and are being used to obtain adjournments to which the party is not entitled. They are disruptive of the conduct of the court’s business. Often, such applications are made more than once in the same proceedings.

24 In the present case, I am unable to see why at least Mr Justelius could not have attended court at 10.00 am. He was able to attend at 9.00 am and consult with the Chamber Magistrate and he was able thereafter to make other attendances. There seems to have been no change in condition at least since the making of the application for a rehearing. Parties who bring proceedings are expected to make themselves available for their conduct. I am left with the view that there could have been an appearance made on behalf of the plaintiffs, had they wished to do so.

25 I now turn to the second ground. Apart from articulating the ground of appeal, nothing was put by the plaintiffs to substantiate it.

26 Because counsel for the defendant had been unaware that such a ground was to be relied on, I gave the parties limited leave to make written submissions on this ground only.

27 Counsel for the defendant made submissions and gave a copy to the plaintiffs. The plaintiffs then made further submissions. There were two documents (both provided outside of the time allowed). The second of the two documents presented as largely being a correction of aspects of the first. Both were made in breach of the leave.

28 By the documents the plaintiffs provided lengthy submissions which in the main addressed matters that fell outside the limited leave that had been granted and raised matters which were not argued during the hearing of the appeal.

29 To the extent that the relevant ground was addressed, the submissions did not seek to advance the case that had been put in court. In fact they presented a stark conflict with what had been said in court. They saw a change of position and a belated attempt was made to present an entirely different case which alleged bias.

30 I have disregarded the submissions which fall outside the limited leave that was granted. Also, I have disregarded those submissions which are made in support of a contention of bias. In the circumstances, they cannot now be entertained. Public policy requires that these proceedings be brought to finality without further delay. If the submissions were to be entertained, the defendant would have to be given an opportunity to respond to them. Such a futile exercise would cause further delay and put the defendant to yet further expense.

31 For completeness, I should add that any such belated allegation of bias would be doomed to failure. A reading of the material finds it devoid of support. I should also add that it was not even raised before the learned Magistrate.

32 The defendant advances a number of arguments to the effect that the application was doomed to failure in any event. I shall turn to these matters in due course.

33 It appears that the application was referred to her because she had heard the matter previously (apparently by another Magistrate at the request of the plaintiffs). She was asked by the plaintiffs, at a later stage, not to hear the application. She did not accede to that request.

34 I am not aware of any basis which would require her not to entertain the application. Bias was not alleged during the hearing and it does not seem to me that reasonable apprehension of bias could be successfully argued. In the circumstances of this particular case, I am not satisfied that she was required to disqualify herself from hearing it.

35 For completeness, I should add that it appears that the learned Magistrate reviewed the material that had been before her on the previous occasion and also took into account other relevant material, before reaching her decision. She noted that both of the plaintiffs were able to attend court on that day.

36 It is said that the finality and ouster provisions of the Arbitration (Civil Actions) Act 1983 operate to deny the plaintiffs any entitlement to challenge the award by the application that was made. The court has been told that there are two competing decisions on this question. One was the decision by Kearney J in Adair v Morahan & Anor (1986) 5 NSWLR 146. The other is that of Yeldham J in Majetic v Brough (1984) 5 NSWLR 393. It is really unnecessary for me to express any view on the competing decisions and I refrain from so doing.

37 Leaving that matter aside, there is still another problem confronting the plaintiffs. The application was brought pursuant to Pt 26 r 3 of the Local Courts (Civil Claims) Rules 1988. Subrule (1) thereof is in the following terms:-

“ 3. Setting aside of judgment or order [DCR Pt 31 r 12A]
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside, on terms, by order of the court, if the judgment was given or entered up, or the order was made, irregularly, illegally or against good faith.”

38 On any view, this was not a case in which what was sought to be set aside was done irregularly, illegally or against good faith (see inter alia Coles v Burke (1987) 10 NSWLR 429).

39 Each of the decisions was reasonably open on the evidence. The appeal is doomed to failure.

40 The proceedings are dismissed. The plaintiffs are to pay the costs of the proceedings.

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Last Modified: 11/14/2003