Lemery Holdings Pty Limited v Andrew Aitken, Douglas McLachlan and Bruce Thorpe trading as Aitken, McLachlan Thorpe and Ors

[2009] NSWSC 70

CITATION:	Lemery Holdings Pty Limited v Andrew Aitken, Douglas McLachlan and Bruce Thorpe trading as Aitken, McLachlan Thorpe and Ors [2009] NSWSC 70
HEARING DATE(S):	4 February 2009
JUDGMENT DATE :	4 February 2009
JUDGMENT OF:	Johnson J at 1
EX TEMPORE JUDGMENT DATE:	4 February 2009
DECISION:	1. Amended Summons filed on 14 November 2008 dismissed. 2. Plaintiff is to pay Defendant's costs of the proceedings. 3. Notice of Motion filed by the Defendant on 21 January 2009 dismissed. The Plaintiff is to pay the costs of that Motion. 4. The purported order made on 9 September 2008 transferring these proceedings to the District Court is revoked.
CATCHWORDS:	PRACTICE AND PROCEDURE - application for leave to appeal from civil judgment in General Division of Local Court - claim of denial of natural justice and other errors - application for leave refused
LEGISLATION CITED:	Local Courts Act 1982
CATEGORY:	Principal judgment
PARTIES:	Lemery Holdings Pty Limited (Plaintiff) Andrew Aitken, Douglas McLachlan and Bruce Thorpe t/as Aitken, McLachlan Thorpe (First Defendant) Local Court of New South Wales (Second Defendant)
FILE NUMBER(S):	SC 13945/08
COUNSEL:	Mr A Sobbi (Director of the Plaintiff) Mr B Gower (Insight Litigation and Legal Services Pty Limited) (First Defendant) Submitting Appearance (Second Defendant)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	---
LOWER COURT JUDICIAL OFFICER :	Her Honour Magistrate Goodwin
LOWER COURT DATE OF DECISION:	1 July 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

4 February 2009

13945/08 Lemery Holdings Pty Limited v Andrew Aitken, Douglas McLachlan and Bruce Thorpe t/as Aitken, McLachlan Thorpe and Ors

JUDGMENT

1 JOHNSON J: By an Amended Summons filed 14 November 2008, the Plaintiff, Lemery Holdings Pty Ltd, seeks relief against the Defendants, Andrew Napier Aitken, Douglas McLachlan and Andrew Bruce Thorpe trading as Aitken McLachlan Thorpe. The Plaintiff seeks leave to appeal with respect to judgment given by a Magistrate in civil proceedings in the General Division of the Local Court.

2 By ss.73 and 74 Local Courts Act 1982, a party to proceedings who is dissatisfied with the judgment or order of the Local Court sitting in its General Division may appeal to the Supreme Court against the judgment or order as of right, but only as being erroneous in point of law (s.73(1)), or on a ground that involves a question of mixed fact and law, but only by leave of the Supreme Court (s 74(1)). The Amended Summons states that leave is sought with respect to what are said to be questions of mixed fact and law.

3 The decision under challenge involves a judgment given on 1 July 2008 by Magistrate Goodwin in the Local Court in favour of the then Plaintiffs (the present Defendants), in the sum of $15,214.56 together with interest and costs.

4 The proceedings in the Local Court involved a claim by the present Defendants for payment for legal services provided to the present Plaintiff. I note that at the hearing before this Court, Mr Sobbi, a director of the Plaintiff, has appeared. Mr Sobbi is not a legal practitioner. He appeared in the interests of the Plaintiff before the Local Court as well. Mr Gower, solicitor, has appeared in this Court for the Defendants, having appeared as well for them in the Local Court.

5 The evidence placed before the Court in the present hearing comprises an affidavit of Mr Sobbi sworn 2 February 2009 and annexures (with the exception of Annexure L) and an affidavit of Andrew Bruce Thorpe affirmed 3 June 2008, which was part of the evidence before the Local Court. Annexed to the affidavit of Mr Sobbi is the transcript of the hearing before the Local Court on 27 June 2008, together with the judgment of her Honour Magistrate Goodwin delivered 1 July 2008.

6 I have heard submissions from both Mr Sobbi and Mr Gower with respect to the merits of the application. The Amended Summons was drawn by Mr Sobbi, and in some respects, it reflects his lack of training as a legal practitioner. I have made allowance for Mr Sobbi’s status, in considering the material before the Court and the submissions.

Grounds of Appeal

7 It must be said that the classification of matters as between a question of law and a question of mixed fact and law is not necessarily straightforward. There are seven appeal grounds contained in the Amended Summons which Mr Sobbi advances. Some of them, in terms, assert error in law; some do not. For the purpose of considering the present application, I should make clear that I have considered the merits of each of the grounds. The grounds of appeal contained in the Amended Summons are as follows:

“(1) the Plaintiff was denied a fair trial or denied procedural fairness such that he did not have a trial according to law;

(2) the Magistrate did not grant the Plaintiff an adjournment at the hearing in the Local Court on 27 June 2008 and as such denied the Plaintiff natural justice;

(3) the Magistrate did not consider the Plaintiffs’ [sic] evidence regarding the assignment of the retainer and such denied the Plaintiff natural justice;

(4) the Plaintiff was denied procedural fairness and as such were [sic] denied natural justice;

(5) the Magistrate erred in failing to find that tax invoices were provided to the Plaintiff for legal services performed;

(6) the Magistrate erred in law in not finding that all right, title and interest in the retainer were assigned to and for the benefit of Aitken Lawyers;

(7) the Magistrate erred in law in finding that the Plaintiff Defendant owed the amounts outstanding to the Defendant in the amount claimed being $15,214.56 plus costs totalling $17,231.10.”

8 Before moving to some consideration of the various grounds, I should observe that the hearing in the Local Court on 27 June 2008 proceeded after a number of procedural or interlocutory steps were taken to ensure that the matter was ready for hearing. The transcript reflects that the learned Magistrate, from time to time, raised issues with Mr Gower and/or Mr Sobbi. A fair reading of the entire transcript suggests that the involvement of the learned Magistrate in this respect was unexceptional, and of the type that might be expected in circumstances where civil litigation of this type is before the Court for hearing, and where one side is not represented by a legal practitioner.

9 With that general preamble, I propose to consider the appeal grounds for the purpose of determining the Amended Summons.

10 Ground 1 contends that the Plaintiff was denied a fair trial or denied procedural fairness, such that it did not have a trial according to law. Mr Sobbi referred to paras 16 to 21 of his affidavit of 2 February 2009 as expanding upon his complaint that the Plaintiff was denied a fair trial. In those paragraphs, he contended that there was excessive intervention by the Magistrate and the solicitor for the Defendants during the hearing, that he indicated a willingness to give evidence with respect to an affidavit that ultimately was not admitted, that he did seek an adjournment of the hearing but that this request was not allowed and that his perception was that the Plaintiff was not receiving a fair hearing. He requests this Court to carefully read the whole of the Local Court transcript before reaching a decision. I have done so.

11 The onus is on the Plaintiff to demonstrate an entitlement to relief, including a grant of leave in the case of questions of mixed fact and law. In my view, a fair reading of the transcript does not disclose excessive intervention of the Magistrate and the Defendants during the hearing. The learned Magistrate raised issues with Mr Sobbi with respect to what appeared to be, on its face, the absence of a defence on the merits contained in the Defence which had been filed. Notwithstanding that, the matter proceeded to a hearing on the merits. It is correct that at one point (T15) Mr Sobbi indicated a willingness to give evidence with respect to affidavit material relied upon by him. However, later Mr Sobbi is recorded as indicating to her Honour (T19):

“Your Honour, I changed my mind. I wish not to give evidence in case this matter goes to - in case I have to appeal the matter, so I wish not to give evidence at this position.”

12 The luncheon adjournment followed and submissions were then made. During the course of Mr Sobbi's submissions, Mr Gower took a point that there appeared to be a form of evidence being given from the bar table by Mr Sobbi. Her Honour indicated (T20) that, “because he is unrepresented I will allow him to at least address and I will give you, of course I will afford you the same opportunity”.

13 Later, during the course of submissions, Mr Sobbi said (T23):

“Your Honour, I was asked if I was prepared to give evidence - it was a voluntary thing for me to do but … I was asked if I wanted to give evidence. It was not the Plaintiff asked me to give any cross-examination. It was just that if I would like to admit part of the affidavit I would go into the witness box. Prior to coming to the court today I have spoken to a solicitor and he said try not to be cross-examined because in case I need to appeal.”

14 In her judgment of 1 July 2008 (page 3), the learned Magistrate observed that no sworn evidence was given in the then Defendant's case and noted accurately, that Mr Sobbi had declined to give evidence.

15 In my view, the correct characterisation of what occurred is that Mr Sobbi, having indicated initially a willingness to give evidence on one aspect, changed his mind and declared that he did not wish to give evidence. On the face of it, he formed that view having obtained legal advice. A reference to an appeal is of no particular assistance to him.

16 At no stage did Mr Sobbi state in the Local Court that he did not believe he was receiving a fair hearing. There was no application that the Magistrate disqualify herself on the basis of actual or apprehended bias. I emphasise that it does not seem to me, on a reading of the transcript, that there would have been any basis for such an application in any event. The fact that Mr Sobbi may have had a personal view, which he kept to himself at the hearing, that he was not receiving a fair hearing, or that the hearing was in some way not travelling well for him, does not form a basis for him to effectively decline to give evidence and then to come to this Court complaining that he was denied natural justice.

17 A further complaint under this general umbrella, which is also picked up in later grounds, is that Mr Sobbi indicated a willingness to have the matter adjourned but that the Magistrate did not take that matter any further. Again, it is necessary to see this matter in context. It would seem that material sought to be placed before the Local Court included accounts of Mr Sobbi's parents, who had some involvement in the events underlying the litigation, but there were not affidavits sworn by them with certification with respect to translation. I note that it is said that neither of those persons was able to read or write English. Objection was taken by Mr Gower to parts of documentary material relied upon by the present Plaintiff in the Local Court. The Magistrate (T17) explained to Mr Sobbi that one thing that might be able to be done, if he regarded this as being crucial evidence, was to have his parents come to Court but that there would be likely cost consequences if costs were thrown away by the adjournment of the hearing.

18 The transcript reveals the Magistrate saying (T17, line 23):

“BENCH: Now is that document, is this affidavit of your parents, if you consider it such a crucial piece of document that you would consider asking the Court to adjourn it, adjourn this matter to allow those documents to be served and knowing that I am telling you I would be awarding costs.

SOBBI: I do, your Honour, on the basis that the proceedings commenced on the one part … concern my parents.”

19 This exchange occurred before the luncheon adjournment on 27 June 2008. It is true that, on one view of it, there was an indication by Mr Sobbi of a desire to seek an adjournment. The Magistrate did not expressly state that the matter would be adjourned. Mr Sobbi said no more on the topic that day. The hearing proceeded. Just before the luncheon adjournment, as I have observed, Mr Sobbi indicated that he had changed his mind about himself giving evidence in case there was an appeal.

20 No application for an adjournment was pressed by Mr Sobbi. What I have said in outline states the position at its highest. There was some discussion about whether an adjournment would be sought with costs consequences, but no application was further articulated or pressed by Mr Sobbi.

21 It does not seem to me that this state of affairs, on any reasonable view of it, constitutes a denial of natural justice by the Magistrate. Mr Sobbi had an understanding of what could be done in all the circumstances and, in my view, he did not press the issue in the Local Court. Once again, if he took that view because of a subjective and unstated concern about the way in which the hearing was progressing, that does not assist him on an appeal to this Court. There is no merit, in my view, in that area of complaint.

22 I have grouped, under Ground 1, a number of complaints made by Mr Sobbi with respect to the hearing in the Local Court. None of them, in my view, is sufficiently arguable as to warrant a grant of leave to allow them to proceed.

23 Ground 2 involves the contention that the Magistrate did not grant the Plaintiff an adjournment on 27 June 2008 and denied the Plaintiff natural justice. This restates the matter to which I have already adverted which was touched upon in paragraph 19 of Mr Sobbi's affidavit, being the submission that an adjournment ought to have been granted to obtain evidence from his parents. I have expressed a concluded view with respect to that aspect already, and I merely note that that conclusion applies to Ground 2.

24 Ground 3 contends that the Magistrate did not consider the Plaintiff's evidence regarding the assignment of the retainer and thus denied the Plaintiff natural justice. This appears to be a complaint that material contained within the affidavit of 10 June 2008 of Mr Sobbi was not admitted. A fair reading of the transcript reveals that the circumstances whereby this material was not admitted was because Mr Sobbi indicated an unwillingness to give oral evidence, or be cross-examined, for reasons already stated. The fact that evidence did not get in because of that stance does not assist him on this appeal. I would not grant leave with respect to Ground 3.

25 Ground 4 involves the contention that the Plaintiff was denied procedural fairness and denied natural justice. This restates Ground 1 and attracts the same conclusions.

26 Ground 5 involves the contention that the Magistrate erred in failing to find that tax invoices were provided to the Plaintiff for legal services performed. This, it seems to me, moves fairly clearly into what is a pure question of fact, but as against the possibility that it is capable of being characterised as a question of mixed fact and law I should deal briefly with it.

27 The basis of this complaint is that a letter of particulars provided by the then Plaintiff to the Defendants attached two tax invoices. At the hearing in the Local Court, annexed to the affidavit of Mr Thorpe of 3 June 2008 (to which I have referred) were a series of invoices relating to the totality of the claim. There were more than two invoices. The Plaintiff complains here that something turns on this.

28 The short answer, it seems to me, is that the evidence of all the tax invoices annexed to Mr Thorpe's affidavit were admitted without objection. Mr Thorpe was not cross-examined in the Local Court. In any event, the two tax invoices provided with a letter of particulars do not, it seems to me, give rise to any clear inconsistency which could constitute either an error of law or an error of mixed fact and law on the part of the Magistrate. In the end, it was a matter for the Magistrate to determine the case on the basis of evidence which was adduced. The evidence which was admitted without objection, and not subjected to cross-examination, involved all invoices supporting the then Plaintiffs’ case. To the extent that Ground 5 might raise a question of mixed fact and law, I would refuse leave for it to be argued.

29 Ground 6 asserts that the Magistrate erred in law in not finding that all right, title and interest in the retainer were assigned to and for the benefit of Aitken Lawyers. Mr Sobbi submits that this issue goes again to the non-admission of his affidavit of 10 June 2008, the non-admission of which appears to flow from his unwillingness to give evidence or be cross-examined. It seems to me, that this matter is closely linked to Ground 3.

30 Despite the fact that Ground 6 asserts an error in law, it has not been said how this was capable of being an error in law. For the purpose of this appeal, I approach this ground as purporting to raise a question of mixed fact and law. The short answer, in my view, is that the evidence before the Magistrate supported the findings made by her. The argument which is sought to be advanced under Ground 6 is not something which can be reasonably advanced in this Court, on the evidence before this Court. I do not think that Ground 6 is reasonably arguable and I decline leave for it to be argued.

31 Ground 7 asserts that the Magistrate erred in law in finding that the then Defendant owed the amounts outstanding to the then Plaintiffs in the amount claimed, being $15,214.56 plus interest and costs. There is a bald assertion in Ground 7 that an error of law occurred in this respect. It has not been demonstrated that any error in law occurred. Nor does there appear to be any arguable error of mixed fact and law. There was ample evidence before the Magistrate to support the verdict reached by her.

32 I have addressed each of the seven grounds identified in the Amended Summons, which have been relied upon by Mr Sobbi in conjunction with matters raised in his affidavit. The central grievance advanced at this hearing by Mr Sobbi is that natural justice was not accorded to the Plaintiff company, nor himself acting in the interests of that company, in the Local Court. Having regard to the totality of the evidence before me, I see no foundation for such a conclusion. The test, of course, as to whether a fair hearing has been accorded to a litigant is not a subjective one based upon a view harboured by that litigant, in particular when he has not communicated that to a Court. In my view, the Magistrate conducted this hearing fairly. It has not been demonstrated that any denial of natural justice or denial of procedural fairness occurred.

33 I have made allowance, as best I can, for the fact that Mr Sobbi is not legally trained. He has placed material before the Court today and has advanced arguments. I have listened carefully to them. At the end of the day, no basis has been demonstrated for this appeal to succeed.

34 Earlier, I mentioned that Mr Sobbi acknowledged, in the Amended Summons and in submissions, that leave was sought here because his grounds involved questions of mixed fact and law. I refuse leave, for the purpose of s.74(1) Local Courts Act 1982, to the Plaintiff to argue grounds of appeal based upon questions of mixed fact and law. I have not identified, in the material placed before this Court, any question of law which would fall within s.73(1) of the Act.

35 I make it clear, however, that I have considered the merits of the grounds argued by the Plaintiff. If leave had been granted under s.74(1), I would have dismissed the appeal in any event on the merits.

36 The Amended Summons is dismissed.

[Submissions on costs]

37 I am satisfied that the Plaintiff should be ordered to pay the costs of the Defendants in the proceedings in this Court. I note, in that respect, that a Notice of Motion was argued earlier today which has been overtaken by events. That Notice of Motion involved an application by the Defendants for dismissal of the Amended Summons for want of prosecution. Because evidence was placed before the Court today by the Plaintiff which allowed the hearing of the substantive proceedings to proceed, that motion was not pressed. I have now determined the substantive proceedings.

38 It is appropriate, however, that the Plaintiff pay the costs of the Defendants with respect to the Notice of Motion filed 21 January 2009. Although I will dismiss that motion, it seems to me that it was a necessary step by the Defendants to take to have the Plaintiff actually place before the Court the evidence which has ultimately allowed the substantive hearing to proceed.

39 Accordingly, I order that the Notice of Motion filed by the Defendants on 21 January 2009 be dismissed, but I order the Plaintiff to pay the costs of that motion.

40 I note that on the Court file is a document which purports to order, on 9 September 2008, that these proceedings be transferred to the District Court. It is apparent that this order was made on a misconceived basis. It was never communicated to the parties, and indeed they had no knowledge that the order had been made until it was raised by me in Court today. The Chief Clerk who purported to make that order, it seems to me, misunderstood these proceedings and considered that s.73(2) Local Courts Act 1982 had application. That section has no application, as this was an appeal from the General Division of the Local Court, and not the Small Claims Division of the Local Court.

41 For the purpose of certainty, I make an order revoking the order made 9 September 2008 transferring these proceedings to the District Court.

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