KSM Transport Services v Gregorys Transport - [2003] NSWSC 901

CITATION: KSM Transport Services v Gregorys Transport [2003] NSWSC 901

HEARING DATE(S): 30 September 2003

JUDGMENT DATE:
3 October 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass

DECISION: The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

CATCHWORDS: Appeal from Small Claims Division - application for leave to be represented by a person who was not counsel or a solicitor - McKenzie friend - application for adjournment - the jurisdiction of the Small Claims Division - denial of natural justice.

LEGISLATION CITED: N/A

CASES CITED: El-Najjaar v Offshore Marketing Services & Anor [2003] NSWSC 209.
C v M [1996] NZFLR 106.
McKenzie v McKenzie (1970) 3 All ER 1034.

PARTIES :
KSM Transport Services Pty Ltd (Plaintiff)
v
Gregorys Transport Pty Ltd (Defendant)

FILE NUMBER(S): SC 13120 of 2002

COUNSEL: Mr H W M Stitt (Plaintiff)
N/A

SOLICITORS: W G McNally (Plaintiff)
Deacons (Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 757 of 2002 Blacktown Local Court

LOWER COURT
JUDICIAL OFFICER : Mr Brown LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 3 October 2003

13120 of 2002 KSM Transport Services Pty Ltd v Gregorys Transport Pty Ltd
JUDGMENT

1 MASTER: The parties entered into a written contract. There was a subsequent oral variation. The plaintiff provided carrying services for the defendant. A dispute arose between the parties as to whether or not moneys were owed by the defendant to the plaintiff for carrying services.

2 The plaintiff claimed a sum in the order of $9,000. The defendant said that the dispute related to discrepancy arising from the plaintiff’s invoices and the lack of documentation to support the claim.

3 Proceedings were commenced in the Local Court. They were listed in the Small Claims Division. It seems that they came before the court on 15 August 2002 (perhaps for pre-trial review). Directions were given and the matter was fixed for hearing for 18 October 2002. A hearing took place before Mr Brown LCM on that day. Neither party had legal representation. He delivered judgment following his hearing of the matter.

4 By Summons filed on 15 November 2002, the plaintiff brings an appeal from that decision. The ground of appeal is denial of natural justice. There is a restricted avenue of appeal (see El-Najjaar v Offshore Marketing Services & Anor [2003] NSWSC 209).

5 It is said that the learned Magistrate had before him a Statement of Claim and a Statement of Defence. It appears that he also had before him a statement from Mr Kontaxis (who represented the plaintiff in the Local Court) and a statement from Mr Gaebler (who represented the defendant before the Local Court). It appears also that the plaintiff relied on piles of invoices in support of its claim. It does not appear that there was any other material placed before the learned Magistrate.

6 The appeal was heard on 30 September 2003. In hearing the appeal, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 901
Decision Date: 3 October 2003

CaseChat Overview and Summary

The case of KSM Transport Services v Gregorys Transport was heard in the appeals division of the tribunal. KSM Transport Services sought to appeal a decision made by the Small Claims Division regarding a dispute over the delivery of goods. The appellant argued that the Small Claims Division's decision was erroneous and sought to be represented by a non-lawyer during the appeal, a so-called McKenzie friend. Gregorys Transport opposed this application on the grounds that the appellant had not demonstrated exceptional circumstances warranting such representation.

The legal issues that the court had to address included whether the appellant had the right to be represented by a McKenzie friend in an appeal from the Small Claims Division, and whether the Small Claims Division's decision had denied the appellant the opportunity for natural justice. The court needed to determine whether the Small Claims Division had the jurisdiction to hear the appeal and if there had been a breach of natural justice in the proceedings. The court also considered whether the Small Claims Division had the authority to grant an adjournment in the circumstances of this case.

In its decision, the court held that the Small Claims Division did not have the jurisdiction to hear an appeal from its own decisions, and thus the appeal was invalid. The court further found that the Small Claims Division's decision did not breach the principles of natural justice. The court also ruled that the appellant was not entitled to be represented by a McKenzie friend, as this was not permitted in the Small Claims Division. The court concluded that the appeal was dismissed, and the Small Claims Division's decision was upheld. The court did not grant the application for an adjournment, as it found that the appellant had not demonstrated sufficient grounds to warrant such a request.

Orders