Lynch v Bagala Bros Pty Ltd - [2022] NSWDC 136

District Court

New South Wales

Medium Neutral Citation: Lynch v Bagala Bros Pty Ltd [2022] NSWDC 136
Hearing dates: 28 April 2022
Date of orders: 28 April 2022
Decision date: 28 April 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Appeal dismissed.
(2) Pursuant to s 98 of the Civil Procedure Act 2005, the defendant’s costs of the appeal are assessed in a gross sum of $4,000 and the plaintiff is to pay in instalments of $1,000 per month over the next 4 months.

Catchwords:
APPEAL - appeal from decision of Assessor in the Small Claims Division of the Local Court pursuant to s 39(2) Local Court Act 2007 (NSW) - whether lack of procedural fairness - appeal dismissed with costs

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98(4)
Local Court Act 2007 (NSW) ss 35, 39(2) and 40

Cases Cited:
Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863
Duraisamy v Sydney Trains [2019] NSWCA 269
Kioa v West (1985) 159 CLR 550
Mahaffy v Mahaffy (2018) 97 NSWLR 119
Poulsen v Harrison [2021] NSWCA 23

Category: Principal judgment
Parties: Plaintiff:
Ms Mary Athena Lynch (self-represented)
Defendant:
Bagala Bros Australia Pty Ltd
Representation:
Counsel
Plaintiff:
Ms Mary Athena Lynch (self-represented)
Defendant:
Mr A Friedlander (Solicitor for the Defendant)
Solicitors:
Defendant:
O'Neill Partners Commercial Lawyers

File Number(s): 2021/00257778

Judgment

The proceedings before the court

The plaintiff appeals an order made by the Local Court on 16 August 2021, pursuant to which judgment was entered against her in the sum of $6,261.79.
These are my reasons for dismissing her appeal, brought pursuant to s 39(2) of the Local Court Act 2007 (NSW) (“the Act”), and for making a gross sum costs order on a party/party basis pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW).

The circumstances leading to the appeal

The plaintiff and defendant both sell flowers in the Sydney Flower Market at Flemington, which the plaintiff told me had been founded by her grandfather in Haymarket prior to the Market’s transfer to Flemington in 1975. There was a long trading relationship between the plaintiff and the defendant, but disputes arose as to the amounts of money the plaintiff was to pay the defendant for flowers she had purchased from them.
The defendant brought proceedings for the recovery of sums due and owing for outstanding invoices for payments for the purchase of flowers. The plaintiff disputed the quantum of those invoices but her efforts to reconcile her account with the defendant’s records was “difficult” (affidavit of 19 March 2022, paragraph 15) because, she told the court, her financial records were stolen.
The plaintiff’s response to these proceedings was to advise the Assessor that she wanted to negotiate the sums owing and that she would like assistance in doing so.
Examination of the transcript of the hearing before the Assessor confirms that while the Assessor sought to obtain information from the plaintiff as to the extent and veracity of the assertions within 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: [2022] NSWDC 136
Decision Date: 28 April 2022

CaseChat Overview and Summary

Lynch brought an action against Bagala Bros Pty Ltd in the Small Claims Division of the Local Court, seeking damages for breach of contract and misleading or deceptive conduct under the Australian Consumer Law. The matter was assessed by an appointed assessor, who dismissed the claim. Dissatisfied with the outcome, Lynch appealed to the Local Court, which subsequently dismissed the appeal. Lynch now seeks further review by the Supreme Court. The appeal raises the question of whether the assessment process was procedurally fair.

The legal issues before the court were whether the assessment process was conducted in a manner that complied with procedural fairness, and if not, whether this infirmity was sufficient to invalidate the assessment. The court was required to examine the procedural steps taken by the assessor, the opportunities given to the parties to present their cases, and whether there were any errors that could have prejudiced the outcome.

In dismissing the appeal, the court held that the assessment process was procedurally fair and that there was no procedural unfairness that could have affected the outcome. The court noted that the assessor had given both parties a fair opportunity to present their cases and had considered all relevant evidence. The court found no basis to conclude that the appeal was well-founded. Accordingly, the appeal was dismissed with costs.

The court ordered that the appeal be dismissed and that the plaintiff pay the defendant's costs of the appeal in a gross sum of $4,000, payable in monthly instalments of $1,000 over the next four months. This order reflects the court's finding that the appeal was without merit and that the procedural fairness of the assessment process was not impugned.

Orders

Orders of the court

Order:

(1) Appeal dismissed.

(2) Pursuant to s 98 of the Civil Procedure Act 2005, the defendant’s costs of the appeal are assessed in a gross sum of $4,000 and the plaintiff is to pay in instalments of $1,000 per month over the next 4 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lynch v Bagala Bros Pty Ltd [2022] NSWDC 136
Hearing dates:	28 April 2022
Date of orders:	28 April 2022
Decision date:	28 April 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Appeal dismissed. (2) Pursuant to s 98 of the Civil Procedure Act 2005, the defendant’s costs of the appeal are assessed in a gross sum of $4,000 and the plaintiff is to pay in instalments of $1,000 per month over the next 4 months.
Catchwords:	APPEAL - appeal from decision of Assessor in the Small Claims Division of the Local Court pursuant to s 39(2) Local Court Act 2007 (NSW) - whether lack of procedural fairness - appeal dismissed with costs
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98(4) Local Court Act 2007 (NSW) ss 35, 39(2) and 40
Cases Cited:	Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863 Duraisamy v Sydney Trains [2019] NSWCA 269 Kioa v West (1985) 159 CLR 550 Mahaffy v Mahaffy (2018) 97 NSWLR 119 Poulsen v Harrison [2021] NSWCA 23
Category:	Principal judgment
Parties:	Plaintiff: Ms Mary Athena Lynch (self-represented) Defendant: Bagala Bros Australia Pty Ltd
Representation:	Counsel Plaintiff: Ms Mary Athena Lynch (self-represented) Defendant: Mr A Friedlander (Solicitor for the Defendant) Solicitors: Defendant: O'Neill Partners Commercial Lawyers
File Number(s):	2021/00257778