Kahwach v Perri, Perri v Kahwach
[2014] NSWSC 198
•12 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Kahwach v Perri, Perri v Kahwach [2014] NSWSC 198 Hearing dates: 12/02/2014 Decision date: 12 February 2014 Jurisdiction: Common Law Before: Garling J Decision: In proceedings no: 2013/112049:
(1) Grant leave to the plaintiff to appeal.
(2) Allow the appeal.
(3) Set aside the order of the Local Court (Maloney LCM) of 15 March 2013, by which the plaintiff was ordered to pay the defendant's costs of the hearing.
(4) Remit the matter to the Local Court for further hearing.
(5) Order that the defendant pay the plaintiff's costs of the proceedings in this court.
In proceedings no: 2013/112871:
(6) Dismiss the summons.
(7) Order that the plaintiff pay the defendant's costs.
Catchwords: APPEAL - civil - local court decision - whether Magistrate erred in adjourning proceedings - whether erroneous interpretation of s 31.19 Uniform Civil Procedure Rules 2005 - whether costs order ought not have been made - whether Magistrate discharged obligation to give reasons Legislation Cited: Civil Procedure Act 2005
Local Court Act 2007
Uniform Civil Procedure RulesCases Cited: Bilyak v Pesor [2012] NSWSC 193 Category: Principal judgment Parties: Maroun Kahwach
Domenic Junior PerriRepresentation: Counsel:
A Poljak (Perri)
D Raphael (Kahwach)
Solicitors:
Muggletons Solicitors (Perri)
Saba El-Hanania Lawyers (Kahwach)
File Number(s): 2013/00112871 2013/00112049
EX TEMPORE Judgment
Mr Perri owned a motor vehicle. Possession of it was given to his good friend Mr Kahwach for the purpose of his undertaking some repairs. Whilst it was in his possession and being driven on the roadway, it was involved in a crash and was severely damaged. The motor vehicle has been scrapped and is no longer in existence.
Mr Perri commenced proceedings against Mr Kahwach in the Local Court. So far as appears to me, the sum in question, whilst no doubt important to the two men, is of a fairly modest size. The Local Court proceedings are yet to be heard finally and both parties are before this Court seeking leave to appeal against Interlocutory Orders made by the late Maloney LCM in the Local Court on 15 March 2013.
Summonses for Leave to Appeal
Mr Perri, the plaintiff in the Local Court, seeks leave to appeal against a costs order made against him on 15 March 2013.
Mr Kahwach, the defendant in the Local Court, seeks leave to appeal an order of the Local Court permitting Mr Perri to rely upon expert evidence in the proceedings, an order vacating the hearing date, as well as the failure of the Local Court to make an order that the costs which were ordered to be paid by Mr Perri be payable forthwith.
Both of the Summonses seek relief with respect to the proceeding of 15 March 2013. That was the day upon which the proceedings were fixed for a final hearing in the Local Court. To understand the context of the submissions which occurred on that day it is necessary to note some of the history of the proceedings leading up to that day.
Local Court Proceedings
According to the unchallenged evidence before this Court, set out in the affidavit of Mr Leo Muggleton, the solicitor for Mr Perri, on 6 August 2012, he appeared at a review hearing in the Local Court. The defendant, Mr Kahwach, was represented with the leave of the Local Court by a paralegal clerk who worked in the office of the solicitor for the defendant, Mr El-Hanania. At the appearance before Stone LCM, a series of matters were raised touching upon the legal issues involved in the proceedings and the readiness of the matter for hearing. Having heard the parties and indicated some views, the learned Magistrate directed the legal representatives to withdraw from the Court and to jointly draw up Short Minutes of Order setting out a timetable for both sides to file their documentary evidence.
The matter was stood down. Mr Muggleton and the paralegal clerk appearing for the defendant engaged in a discussion about a timetable. Mr Muggleton deposes in paragraph 18 of his affidavit that the following exchange took place:
"I said: 'I will need four weeks to file my client's affidavits and to obtain an expert report.' She replied: 'I will also need four weeks to file my affidavits and an expert report.' I said: 'We both might need to file affidavits in reply. We had better give ourselves a further two weeks for this.'"
Mr Muggleton deposes that when the parties returned to the Court the Short Minutes of Order were handed up. The orders were made by the Magistrate who then listed the matter for a further review hearing about two months later, in October 2012.
When the matter was listed in October 2012, Mr Muggleton appeared for the plaintiff and the defendant's solicitor, Mr El-Hanania, appeared for the defendant. Mr Muggleton deposes that he informed the Court that he had an expert preparing a report and asked for a further period of time to finalise the report and to reply to the affidavits which had been served. On that day the Court made a further order that the plaintiff was to file and serve any further affidavits by 12 November 2012.
On 12 November 2012, when the matter was next before the Local Court, Mr Muggleton served an expert report on the solicitor for the defendant at the Court. On that day the defendant's solicitor, Mr El-Hanania, informed the Court that the defendant required time to file and serve a reply to the plaintiff's expert report and sought a period of time within which to do that. The matter was ultimately adjourned until 26 November 2012, by which time the defendants report would be served, and at which time it was anticipated that a final hearing date would be allocated.
For various reasons into which it is unnecessary to go, the proceeding was not set down for a hearing until 10 December 2012. On that day, the matter was set down for hearing on 15 March 2013. According to Mr Muggleton's unchallenged evidence, the following occurred at the Local Court on that day:
"The court was informed that the plaintiff would have two witnesses plus an expert. The defendant's legal representative, Rebecca Vasey, informed the court that all the plaintiff's witnesses and the plaintiff's expert witness were required for cross-examination. Ms Vasey also informed the court that the defendant would have three witnesses. I informed the court that the plaintiff would require the defendant's three witnesses for cross-examination."
Mr Muggleton's affidavit was not objected to, nor was it submitted that the Court ought not rely upon it. Mr Muggleton was not required for cross-examination on his affidavit, and no challenge in submissions was made to the accuracy of the material to which I have referred. No evidence was filed by any other person who attended at the Local Court on any of those occasions which may have suggested that Mr Muggleton's account of events was in any way inaccurate. I accept Mr Muggleton's evidence completely.
As I have already said, the plaintiff served an affidavit of an expert, Mr Rehayem, on 12 November 2012. On 12 March 2013, three days before the final hearing was due to commence, and well outside the time permitted by the Court's orders, the defendant's solicitors served an affidavit of an expert, Mr Al-Aaraj. That affidavit was sent by email to Mr Muggleton on that day. On the following day, an email was sent by Mr Muggleton to Mr El-Hanania attaching an unsworn affidavit of another expert, a Mr Goodman, in relation to valuation evidence. That affidavit specifically responded to the affidavit of Mr Al-Aaraj.
Hearing on 15 March 2013
The matter was called on in the Local Court on 15 March 2013. It was apparent, as the transcript of 15 March 2013 records that, firstly, the matter had been fixed for a final hearing and, secondly, the parties informed the court generally of the nature of the matter. As well, the court was informed that there were two preliminary issues which needed to be dealt with. The first referred to an anticipated request by the plaintiff, Mr Perri, to file a further amended statement of claim and the second was a submission which was anticipated would be put by the defendant, Mr Kahwach, that the plaintiff was not entitled to rely upon any expert evidence.
Prior to any hearing being commenced Maloney LCM, having been informed broadly of the nature of what was to be dealt with, proceeded to deal with other matters in his list. When the matter was called again, his Honour thought it was appropriate to speak directly to the parties and encourage them to resolve the litigation. In order to enable that to happen the magistrate stood the matter down in the hope that the parties may settle their differences.
When the matter resumed Maloney LCM was informed that settlement was not possible and he was reminded by counsel for the plaintiff that there were two issues: first, whether Mr Perri should have leave to file an Amended Statement of Claim; and secondly, an issue about the admissibility of expert opinion evidence. It appears from the transcript that his Honour went on immediately to deal with the issue of expert evidence.
The issue related to an objection being taken by Mr El-Hanania on behalf of the defendant to the admissibility of any expert evidence in the proceedings. He said to the magistrate this:
"Well there's a bigger problem, your Honour, which my friend is not alerted to (sic) and that is with regards to the expert evidence and that is this, and we've double checked that this morning, Rule 31.19 has not been complied with or met, that is asking that an expert be called because then the magistrate will be in a position as to why and so forth. So that's the first hurdle my friend has, and quite clearly the Act says and there's a CCA case with regard to that, it must promptly seek directions from the Court in that regard. Now there's been no direction with regard to expert evidence. So now my friend cannot rely on it. Quite clearly the Act says he cannot rely on it, on any of the expert evidence."
That submission was developed and it became apparent that Mr El-Hanania was relying upon the provisions of r 31.19 of the Uniform Civil Procedure Rules (UCPR), together with the absence of any direction having been given by the court with respect to expert evidence, as being the basis for the preclusion of any expert evidence being relied upon by the plaintiff. In support of his submissions, Mr El-Hanania drew attention to a decision of Hallen AsJ (as his Honour then was) in this Court: Bilyak v Pesor [2012] NSWSC 193 in particular at [99]-[103].
Mr El-Hanania submitted that the effect of r 31.19 of the UCPR was that the court did not have any discretion to permit a party to adduce expert evidence at trial if that party had not, first, sought directions from the court and, at least implicitly, he submitted that directions could not be sought on the first day of a final hearing. Counsel appearing for the plaintiff submitted that there was a discretion within the rule and that the Court retained a discretion to permit his client to rely upon expert evidence in all of the circumstances.
The parties were clearly at issue with respect to the proper interpretation of r 31.19of the UCPR. Neither party drew the Court's attention to the provisions of s 56 of the Civil Procedure Act 2005, which Act governed the hearing in the Local Court, nor to the provisions of s 61 of the Civil Procedure Act, nor to the provisions of Part 2 of the UCPR. Each of these provisions had direct relevance to the issues before the Local Court, and each of which were necessary to be addressed in order to understand the meaning and effect of r 31.19, and its practical application in the circumstances confronting the Local Court on 15 March 2013.
It is appropriate to note the relevant provisions.
"56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
...
61 Directions as to practice and procedure generally
(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.
(2) In particular, the court may, by order, do any one or more of the following:
(a) it may direct any party to proceedings to take specified steps in relation to the proceedings,
(b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,
(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate.
(3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following:
(a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,
(b) it may strike out or limit any claim made by a plaintiff,
(c) it may strike out any defence filed by a defendant, and give judgment accordingly,
(d) it may strike out or amend any document filed by the party, either in whole or in part,
(e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce,
(f) it may direct the party to pay the whole or part of the costs of another party,
(g) it may make such other order or give such other direction as it considers appropriate.
(4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court."
Section 56(1) of the Civil Procedure Act provides that when provisions of the Act or of the rules of court are applied to civil proceedings as the Magistrate was being urged to do in the Local Court, the overriding purpose is to do so in a way which facilitates the just, quick and cheap resolution of the real issues in the proceedings.
Section 61 deals with the capacity and power of the court to make directions. It is plain from s 61 that the Court can give such directions as it thinks fit to further the overriding purpose, whether or not such directions are consistent or inconsistent with the UCPR.
Part 2 of the UCPR which deals with case management also provides that the Court may give such directions as appear convenient for the just, quick and cheap disposal of the proceedings. Rule 2.1 of the UCPR specifically preserves the power of the Court to give directions which are inconsistent with the UCPR.
None of these provisions were drawn to the attention of the presiding Magistrate in the Local Court. That is a thoroughly regrettable state of affairs.
Local Court Judgment
The submissions having been made, the Magistrate took a short adjournment, and then permitted the counsel for the plaintiff, Mr Perri, to put some further submissions. After some further discussion, which identified the broad range of debate between the experts, it seems that the Magistrate came to give a form of a judgment. The judgment is a little discursive and it is hard to find the reasons for his Honour's decision. However, it is necessary to record such part of that discursive judgment as will enable this court to give a ruling with respect to the issues raised.
His Honour said this:
"But look, rule 31(1)(9) was put in there for a specific reason. I discussed it briefly with my colleagues over the break. 'This is my take on the rule, do you agree', it was unanimous. The reasons that I stated before for my understanding of the rule, I'm not going to repeat, you both heard them.' " (sic)
The reference to what he had earlier said was to an exchange about r 31.19 of the UCPR to this effect:
"His Honour: It is not discretionary.. It's not discretionary. It's hard and fast. It's hard and fast. You see, the idea is, if you want to produce expert evidence, then you give the other side notice of it and you get their report, and they get their expert, as they would have to do from a tactical point of view, and then there's going to be a review."
His Honour then referred to the decision of Bilyak to which his attention had been drawn. He then set out the provisions of r 31.19 of the UCPR and noted that Hallen AsJ (as his Honour then was) had said in Bilyak that:
"Accordingly, pursuant to the rule, unless the court otherwise orders the expert evidence may not be adduced at a trial."
His Honour continued his judgment:
"So not unless the Court otherwise orders, it's at trial. As I read that clause, 'otherwise orders' it's some other point in time. It's a [re]view time or a mention time. It's not the defendant's job to alert the plaintiff of any defects in non-compliance of the rules and I would have thought that in a case such as this that the amount of the claim is strategically linked to the expert evidence of the valuation of the vehicle." (sic)
Having discussed some issues relating to the particular valuation, Maloney LCM went on:
"If I, and I must comply with the rule myself it's not discretionary, if you haven't complied you haven't complied. The rule is there for a specific purpose. You have to jump your hurdles, each and everyone of them procedurally on your way to trial. You've virtually got to qualify to run in the Olympics, you've got to do the qualifying times. If I, as is should, comply with that rule myself and exclude the plaintiff's expert evidence then the only expert evidence that I've got is the defendant's expert evidence if he so chooses to file it which he has or will in court because I'm going to allow the filing of it in court. I am going to allow your filing of it too but not today because I am turning today into another review date and I am giving direction[s] so that the plaintiff isn't prejudiced. It may well prejudice the defendant as he sees it. Well if the other fellow isn't going to comply with the rules why should the magistrate bend over backwards for him? Well fair play determines that. I firmly believe that when parties come to Court and this is the People's Court, not the District Court, it used to be the District Court, it is the Local Court nowadays, it's the People's Court. Every person should have his or her say. So that they can go away and say I played strong, I done good in the words of Jack Gibson. I did the best I could, I'm proud of myself but I lost, what more could I do? Or I didn't win as much as I thought I'd win.
That is why I'm going to let each party go away. You might suffer and will suffer a cost penalty today for not complying with the rules. But we can hold that over until the end of the matter in any event." (sic)
There was then a further discussion between the Magistrate and the lawyers during which further orders were sought and made. The further orders included the filing of a further Amended Statement of Claim and that the parties had leave to file various expert evidence in court. The proceedings were then stood over for a further review date. The Magistrate ordered the plaintiff, Mr Perri, to pay the defendant, Mr Kahwach's costs.
Insofar as there are any reasons with respect to the costs order, they seem to be contained within the following portion of the judgment and discussion which occurred:
"HIS HONOUR: That is why I'm going to let each party go away. You might suffer and will suffer a cost penalty today for not complying with the rules. But we can hold that over until the end of the matter in any event.
EL-HANANIA: Your Honour, I would want to be heard with regards to that. I mean there are two issues I want to be heard against with regards to, firstly, although this is the People's Court I need a judgment with regards to that because my friends have not complied with the rules. It was our smart tactics with regards to this.
HIS HONOUR: I'm giving you a costs order.
EL-HANANIA: I know that.
HIS HONOUR: Do you want it now?
EL-HANANIA: Yes.
HIS HONOUR: You want him to pay within 24 hours?
EL-HANANIA: Yes, thank you.
HIS HONOUR: No.
EL-HANANIA: No, 28 days."
Maloney LCM ultimately ordered that the plaintiff (Mr Perri) was to pay the defendant's (Mr Kahwach) costs "for proceedings today".
The proceedings brought by Mr Perri sought leave to appeal specifically against that part of the Magistrate's order that, the hearing of the plaintiff's claim be adjourned and that the plaintiff pay the defendant's costs of the hearing of 15 March 2013. Mr Perri submitted that the Magistrate had erred in concluding that the plaintiff had not complied with r 31.19 of the UCPR; he had erred in concluding that the Court had no discretion to permit the plaintiff to adduce expert evidence at the hearing, and had erred in holding that the plaintiff should pay the costs of the proceedings on that day because of a failure to comply with r 31.19 of the UCPR.
In oral submissions, counsel for Mr Perri also pointed to the failure of the Magistrate to refer to the provisions of ss 56 and 61 of the Civil Procedure Act and Part 2 of the UCPR, as being relevant to the erroneous interpretation of r 31.19 of the UCPR.
As well, counsel for the plaintiff submitted that such reasons as were given with respect to the costs order were not adequate and did not constitute the discharge of the Magistrate's obligations to give reasons.
It is convenient to deal with the arguments on this Summons for leave to appeal first.
It is quite unclear why the Magistrate adjourned the proceedings. He gave no reason for doing that, simply stating, as I have noted earlier, that in the face of all the submissions, he was converting the matter from a hearing date to a review date or directions hearing.
Given the state of preparedness for hearing and the broad nature of all the submissions which were being made to the Magistrate, and no doubt having regard to the other commitments which the Magistrate had that day in the Local Court, I am unable to see how such a discretionary decision as the adjournment of the proceedings could be subject to attack. However, it is unnecessary for me to form any concluded view on that issue because it is necessary for Mr Perri to first obtain leave to appeal against that decision.
A decision to grant an adjournment is a decision in the exercise of the Court's undoubted discretion with respect to a matter of practice and procedure. The adjournment has been granted and nearly 12 months has passed since that time while these proceedings have been on foot in this Court.
The fact is, whether the decision was right or wrong, the adjournment has been granted and the parties have had the benefit of the time that has passed since then to put their cases in order. There is little point in this Court forming any view as to the correctness or otherwise of the order for adjournment. Even if the adjournment was erroneous, there is no order which this Court can make which can effectively restore the position to that which existed before the erroneous order was made. Accordingly, I would not be prepared to grant leave to Mr Perri to appeal to this Court against such an order. There is no practical utility in a grant of leave.
Insofar as the order for costs is concerned, I am satisfied that leave should be granted. I readily accept the sum in issue is not large, however, as it appears to me, the Magistrate fell into serious error. There are a number of reasons why that is so.
The first and principal reason is that he did not give any adequate reasons for his decision. A bald statement, even in the context of all which had gone before, that the plaintiff had not complied with the rules is not, of itself and without more, adequate reason for the making of the decision.
Before making a decision with respect to a claim for an order for costs, a court is obliged to consider what has happened, as a matter of fact; the consequences in law for the case; the respective contributions to that position by the parties, if any; and what the interests of justice require.
The Magistrate's reasons do not suggest that he gave any consideration to those issues whatsoever. Rather, he simply saw that, if a party had failed to comply with a rule, then that was, without more, a basis for making an order for costs. That may be, in some circumstances, a sufficient basis. However, in the circumstances of this case, before that could be regarded as a sufficient basis, the Magistrate had to consider all of the other matters to which I have pointed and either have regard to them if relevant, or to set out why they were of no relevance. This he failed to do in giving his inadequate reasons.
The second matter is that it seems to me that the Magistrate fell into error, which can be regarded as an error of law, when he considered r 31.19 of the UCPR in isolation from, and without regard to, the provisions of ss 56 and 61 of the Civil Procedure Act and the provisions of r 2.1 of the UCPR.
The overriding purpose fixed by s 56 of the Civil Procedure Act is, as has been said, to ensure that the court facilitates the just, quick and cheap resolution of the real issues in the proceedings and further, that there is an obligation on a court to seek to give effect to the overriding purpose when it exercises any power given to it by the Act or he UCPR or when it interprets any provision of the Act or the UCPR.
The interpretation of r 31.19 of the UCPR by the Magistrate, as being obligatory on the court and without the provision of any discretion, could not rationally have been arrived at without the Magistrate considering whether such an interpretation gave effect to the overriding purpose in s 56 of the Civil Procedure Act. This he wholly failed to do.
In so saying, I should not be taken to criticise the learned Magistrate. Neither of the lawyers appearing before him drew his attention to ss 56 or 61 of the Civil Procedure Act. Neither of the lawyers appearing before him drew his attention to Part 2 of the UCPR.
It has been said on many occasions, over and over in this Court, that the rules of court are not the masters of the litigation, they are the servants of it. They are there to assist to ensure that in the interests of justice and the furtherance of the overriding purpose, matters are prepared properly for hearing and the parties are in a position to deal adequately with the matter.
The third error which the Magistrate made was, that he accepted, contrary to the actual facts, the submissions of the solicitor for the defendant, Mr Kahwach, that the Court had not given any directions about serving expert reports, whereas the Local Court had in fact given directions with respect to the filing of expert evidence on two occasions in 2012 in the way to which I have earlier referred.
Accordingly, as a matter of fact, directions had been given pursuant to r 31.19 of the UCPR. If there was any real point of objection, which the solicitor for the defendant had available to him, it was that directions having been given, there had been a failure to comply with those directions and consequently expert evidence was not available to be adduced by the plaintiff, Mr Perri.
However, such objection was not made to the Magistrate. Rather, the solicitor for the defendant took the view that the appropriate submission to make was that no such directions had been given. As the evidence to which I have earlier referred demonstrates, and is unchallenged in this Court, those directions had been given and applied to both parties. The plaintiff had complied, ultimately, with the directions, the defendant had not.
However, as this is arguably, only, an error of fact and therefore would not, standing alone, be sufficient to enable the relief claimed to be allowed, it can therefore be put to one side.
I am persuaded that leave to appeal to this Court in accordance with s 40 of the Local Court Act 2007 ought be permitted with respect to the costs order which was made, as I have said, erroneously in the Local Court and that costs order ought be set aside.
I turn then to consider the Amended Summons filed in this court by Mr Kahwach. That summons also seeks leave to appeal and, when filed this morning, sought the following orders:
"3. The matter be remitted to the Local Court for an expedited hearing on the parties' evidence, as served, save all expert evidence;
4. The learned Magistrate order with respect to costs, the order be amended to require the costs to be paid forthwith as agreed or upon 28 days of assessment."
The basis for those orders was that Mr Kahwach contended that the Magistrate erred in law by:
"Making an otherwise order pursuant to UCPR 31.19(3) with respect to the expert report of Rehayem and Goodman, experts, on the day of the Local Court hearing."
It was also contended that Magistrate Maloney erred in law by vacating the hearing date on his own motion. For reasons consistent with those which I have earlier given, the hearing date having been vacated, I would not be prepared to grant leave to appeal to this court with respect to the decision vacating the hearing date. Any such attack on that decision is moot and no point is to be served by the granting of leave to deal with that.
In this Court, counsel for Mr Kahwach submitted that the orders as formulated would not be pressed. However, he submitted that the Court ought remit the matter to the Local Court with a recommendation for the hearing to be expedited. It was unclear to me whether counsel continued to submit that there should be a restriction in the Local Court on the evidence which was able to be adduced below. I have taken it to be that counsel continues to seek such an order.
Clearly, the matter must be remitted to the Local Court because it is that court which must conduct the hearing. Leave is not required to appeal against any Local Court's order so as to enable an order of this Court that the matter be remitted to the Local Court. That is a submission which could be made on the hearing of the Summons for Leave to Appeal of Mr Perri. As I have said, the order with respect to costs was not pressed.
That leaves the question of whether or not there should be an expedited hearing in the Local Court as part of a recommendation by this court and whether the proceedings in the Local Court ought be confined to the evidence that the parties have served, save all expert evidence.
I am not prepared to grant leave to Mr Kahwach with respect to the orders which he has sought. Whether or not the Local Court should expedite the hearing of the proceedings is a matter entirely for it. No application has been made to it for expedition. No reason was put before this Court as to why there ought be expedition, save for the fact that the proceedings had been on foot in that court since December 2011. This Court is simply not in any position to judge the state of the list in the Local Court and whether this matter warrants any priority over any other matter. There is simply no basis for an order or even a recommendation with respect to that. Leave to appeal to achieve relief of this kind ought to be refused.
The second matter which Mr Kahwach seeks to have this Court address is to make an order about practice and procedure. Mr Kahwach seeks, in this Court, an order restricting the nature of the evidence which is to be allowed to be heard by the Local Court. That is an order with respect to practice and procedure of a future hearing. It is a matter of the discretion of the Local Court as to what evidence it will allow and when. No basis was disclosed as to why such an order ought to be made, either in this Court or in the Local Court. Having regard to all that has occurred, I can see no merit in, nor basis for, making such an order.
Insofar as orders were made on 15 March 2013, which permitted evidence to be filed by both parties of an expert nature, no error of law or of the exercise of the discretion to make those orders has been demonstrated. In all of those circumstances, I am not prepared to grant Mr Kahwach leave to appeal with respect to his Amended Summons which will be dismissed.
Costs
A question arises as to what should happen with respect to the legal costs of the proceedings in this Court. In light of the court's judgment, counsel for Mr Perri seeks an order in respect of both sets of proceedings that Mr Kahwach pay his legal costs. Counsel for Mr Kahwach submits that both parties have had a measure of success and that, accordingly, the Court should order that each party pay their own costs of the proceedings in this Court.
The Summons for Leave to Appeal of Mr Perri has enjoyed a degree of success. The order for costs has been set aside. Leave was otherwise not granted. The Summons for Leave to Appeal filed by Mr Kahwach will be dismissed. He has not enjoyed any measure of success.
It would be easy in this Court to make an order that Mr Kahwach pay the costs of Mr Perri on both Summonses because that would be an order of the kind commonly made here where costs follow the event. Indeed, that would be the default position.
The question is whether I am persuaded that the usual order or, as I have said, the default order should not be made. That question necessarily calls up for consideration the issue of how it was that the proceedings in the Local Court were conducted and the nature of the submissions which were there made.
As has previously been indicated at some length, the fundamental objection to the reliance on expert evidence which gave rise to both the adjournment and the order for costs seemingly, arose because the solicitor for the defendant, Mr Kahwach, in reliance upon r 31.19 of the UCPR, objected to any evidence being called. He did so, as I have said, without referring to the other provisions of the legislation which were undoubtedly relevant and which indicated, contrary to his submission to the Court, that the Court at all times maintained a discretion with respect to what order it ought make. He also did so in the face of what is now undisputed as the fact, namely that directions had been made for the filing of affidavits, including expert reports.
It seems to me that whilst I accept that counsel for Mr Perri also did not refer the Magistrate in the Local Court to the various statutory provisions which I have highlighted, he nevertheless did maintain a submission that the Court had a discretion to make the orders which it did.
In my view, the role played by the solicitor for Mr Kahwach in the Local Court, which has given rise to these proceedings being brought here, can not be ignored and so, it seems to me, was the principal cause of the Magistrate falling into error.
I do not think, in those circumstances, it would be just and fair to order that each party pay their own costs of these proceedings when these proceedings were necessitated by the error into which the Magistrate fell. It seems to me that Mr Perri has enjoyed a significant measure of success. He has obtained an order setting aside the costs order of the Local Court and he has persuaded this court that the summons filed by Mr Kahwach ought be dismissed.
In all of those circumstances, in accordance with the usual practice that costs follow the event, I will order Mr Kahwach pay Mr Perri's costs of both of these proceedings.
I make the following orders:
In proceedings no: 2013/112049:
(1) Grant leave to the plaintiff to appeal.
(2) Allow the appeal.
(3) Set aside the order of the Local Court (Maloney LCM) of 15 March 2013, by which the plaintiff was ordered to pay the defendant's costs of the hearing.
(4) Remit the matter to the Local Court for further hearing.
(5) Order that the defendant pay the plaintiff's costs of the proceedings in this court.
In proceedings no: 2013/112871:
(6) Dismiss the summons.
(7) Order that the plaintiff pay the defendant's costs.
**********
Decision last updated: 12 March 2014
0