McClymont v The Owners-Strata Plan No. 12139

[2009] NSWSC 276

Reported Decision: 74 NSWLR 404

New South Wales

Supreme Court

CITATION:	McClymont v The Owners-Strata Plan No. 12139 [2009] NSWSC 276
HEARING DATE(S):	15/09/2008
JUDGMENT DATE :	17 April 2009
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	1) In respect of proceedings in the Local Court No. 1366/07, the appeal is dismissed. 2) In respect of proceedings in the Local Court No. 122303/06, the appeal is dismissed. 3) I order the plaintiffs to pay the defendant’s costs of the appeal.
LEGISLATION CITED:	Civil Procedure Act 2005 District Court Rules Judicial Officers Act 1986 Legal Profession Act 2004 Local Courts Act 1982 Local Court (Civil Claims) Rules Local Court (Civil Procedure) Rules 2005 Strata Schemes Management Act 1996 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Cumming v Tradebanc International Ltd [2002] NSWSC 70 Dimitriou v Owners of Strata Plan 36131 [2008] NSWSC 116 Gould v Kok (Supreme Court of New South Wales, Young J, 23 May 1994, unreported) John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Kells v Waters [2007] NSWSC 885 King Investment Solutions v Hussain [2005] NSWSC Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27 Palmer v Clarke (1989) 19 NSWLR 158 Pender Robwenphi Pty Limited [2008] NSWSC 1144 Stead v State Government Insurance Commission (1986) 161 CLR 141 Wakim v Mathiew Pty Ltd trading as Dove Migration Services [2002] NSWSC 405 Wende v Finney [2005] NSWSC 927
PARTIES:	Graham James McClymont (1st Plaintiff) Selma Maria McClymont (2nd Plaintiff) The Owners-Strata Plan No. 12139 (1st Defendant) Local Court (Civil Claims) Downing Centre (2nd Defendant)
FILE NUMBER(S):	SC 30127/07
COUNSEL:	Mr J A Levingston (Plaintiffs) Mr D Radman (Defendants)
SOLICITORS:	Turnbull Bowles Lawyers (Plaintiffs) Grace Lawyers Pty Limited (Defendants)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	122303/06; 1366/07
LOWER COURT JUDICIAL OFFICER :	Assessor G H Roberts
LOWER COURT DATE OF DECISION:	23 October 2007

- 24 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

17 APRIL 2009

30127/07 McCLYMONT v THE OWNERS - STRATA PLAN NO. 12139

JUDGMENT

1 HER HONOUR: Graham and Selma McClymont were the owners of a lot in a residential strata scheme in Killara. The owners corporation for that strata scheme commenced two sets of proceedings in the Local Court to recover unpaid contributions, interest and expenses from Mr and Mrs McClymont under the Strata Schemes Management Act 1996. The two proceedings related to contributions claimed in respect of separate periods of time. Both proceedings were commenced in the Small Claims Division of the Local Court. The proceedings were ultimately heard together by an Assessor of the Local Court. The Assessor reserved his decision and provided it to the parties in writing by posting it to them two weeks later.

2 Mr and Mrs McClymont have appealed against that decision. When the appeal was commenced and heard, an appeal lay to this Court as of right against a judgment of the Local Court sitting in its Small Claims Division, but only on the ground of lack of jurisdiction or denial of natural justice: s 73(2) of the Local Courts Act 1982 (since amended). Mr and Mrs McClymont rely on two grounds of lack of jurisdiction and three grounds of denial of natural justice.

3 The first ground of lack of jurisdiction is that the owners corporation’s claims exceeded the jurisdiction of the Local Court in its Small Claims Division. Mr and Mrs McClymont contend that the two claims were, in fact, a single claim which exceeded the jurisdictional limit of the Small Claims Division ($10,000) and was of a level of complexity “beyond the policy and procedural ambit” of that Division.

4 The second ground of lack of jurisdiction, which was not articulated in the amended summons but was developed in submissions, was that the Small Claims Division lacked jurisdiction because a substantial component of each claim was the legal costs incurred by the owners corporation in recovering the unpaid contributions. Mr and Mrs McClymont contend that the Small Claims Division has no power to determine a claim for such costs.

5 As to denial of natural justice, the appeal was brought on the following grounds:

(1) that full reasons were not given for the decision in that no reasons were given in respect of certain issues raised by Mr and Mrs McClymont and the reasons in respect of other issues were not identifiable;
(2) that the Court failed to observe the requirement of the common law and r 36.3 that the judgment be delivered in open court;
(3) that the proceedings were heard and determined in the Small Claims Division which prohibited Mr and Mrs McClymont from cross-examining witnesses to test their evidence.
Did the two claims exceed the jurisdiction of the Small Claims Division?

6 Before considering the first ground of appeal it is appropriate to set out the history of the two sets of proceedings. The owners corporation first commenced proceedings against Mr and Mrs McClymont by statement of liquidated claim issued in the Local Court at North Sydney on 15 November 2004. The claim was for unpaid contributions for the period from 1 October 2003 to 8 November 2004. The amount claimed was $3,955.90 together with interest, court fees and solicitors’ costs, giving a total claim of $4625.34.

7 The day after those proceedings were commenced, on 16 November 2004, a payment from Mr and Mrs McClymont in the sum of $3,900.91 was credited to the owners corporation trust account. That left an unpaid balance of the claim of $54.99. The interest, court fees and solicitors’ costs claimed also remained unpaid.

8 On 26 April 2005 the solicitor for the owners corporation swore an affidavit of debt acknowledging the payment in the sum of $3,900.91, which had reduced the claim to $54.99. On 27 April 2005 default judgment was entered in respect of that claim which, together with interest, court fees and professional costs, came to a total of $870.29.

9 On 6 October 2006 an application to set aside the default judgment was refused by a Registrar of the Court. In the meantime, the owners corporation had claimed further contributions from Mr and Mrs McClymont, which had not been paid. On 9 November 2006, the owners corporation commenced a second set of proceedings against Mr and Mrs McClymont in the Local Court at the Downing Centre (No. 122303/06) claiming unpaid contributions due and payable between the period 9 November 2004 to 8 November 2006, interest on the unpaid contributions and expenses incurred by the owners corporation in attempting to recover those amounts. On 2 February 2007, those proceedings were listed to be heard on 16 April 2007.

10 On 7 February 2007, the McClymonts were successful in having the default judgment in the first set of proceedings set aside, having sought a review of the earlier decision of the Registrar. In due course, those proceedings were transferred from the Local Court at North Sydney to the Local Court at the Downing Centre and listed on 16 April 2007 together with the second set of proceedings. (The transferred proceedings were allocated the new proceedings No. 1366/07.)

11 When the two sets of proceedings came before the Assessor on 16 April 2007, both parties indicated that they wanted to have the two matters dealt with together. However, the time allocated for hearing the second matter that day was taken up with argument as to a preliminary issue. The matters were stood over to 23 May 2007 and the owners corporation foreshadowed an application to amend its claims on that occasion.

12 On 23 May 2007, the owners corporation sought leave to amend its statement of claim in each set of proceedings to claim additional recovery expenses under s 80 of the Strata Schemes Management Act. Most of the additional expenses were legal fees that had been incurred during the proceedings. The amounts claimed in the amended statements of claim were $10,040.82 in the first set of proceedings and $9,841.00 in the second proceedings. As the limit of the jurisdiction of the Local Court sitting in its Small Claims Division was $10,000, the owners corporation waived its entitlement to claim the $40.82 by which its claim in the first proceedings exceeded that jurisdiction. The Assessor granted leave to the owners corporation to file the amended pleadings and the matters were stood over to 30 July 2007 to be heard together.

13 It is against that background that the appeal is brought. In his written submissions before this Court, counsel for the McClymonts, Mr Levingston, submitted that the owners corporation’s claims exceeded $20,000 but that:

“by a contrivance amounting to an abuse of process the plaintiff split its claims to bring itself within the Small Claims Division, not for a speedy trial, but so as to deny procedural fairness to the defendants by preventing cross-examination of its witnesses. It split its case and filed in two different Registries of the Local Court on different dates, in order to bring itself within the Small Claims Division, and to deny the defendants the procedural benefits of the General Division”.

14 As can readily be seen from the history of the two sets of proceedings, that submission is without substance and, in my view, ought not to have been made. At the time when the owners corporation commenced the second set of proceedings claiming unpaid contributions for the period from 9 November 2004 to 8 November 2006, its first claim in respect of the period from 1 October 2003 to 8 November 2004 had been determined in its favour, with the consequence that it was a judgment creditor for the amount of $870.29. The owners corporation did nothing to “split its claims”. They were, historically, entirely separate claims until Mr and Mrs McClymont were successful in having the default judgment in the first set of proceedings set aside in February 2007. It was only as a result of that event that those proceedings came to be transferred to the Downing Centre and, in due course, heard together with the second set of proceedings.

15 Mr Levingston acknowledged that there is no specific statutory rule requiring “combined claims” exceeding $10,000 to be transferred to the General Division. He relied, however, on r 6 of the Local Court (Civil Procedure) Rules which provides that proceedings “are to be” transferred from the Small Claims Division to the General Division where the jurisdictional limit is exceeded because of a cross-claim. He submitted that the intention disclosed by r 6 is that transfer to the General Division is mandatory if the amount in dispute is greater than $10,000. That submission ignores the fact that there were two discrete sets of proceedings, each of which involved a claim for less than $10,000, and each of which had accordingly been properly brought in the Small Claims Division.

16 Mr Levingston also relied on r 7(1) of the Local Court (Civil Procedure) Rules. That rule provides:

“Proceedings are to be transferred to the Court’s General Division if, at any time before judgment is given, the Court is of the opinion that the matters in dispute are so complex or difficult, or are of such importance, that the proceedings ought more properly to be heard in the Court’s General Division.”

17 Mr Levingston submitted that the Assessor ought to have turned his mind to the issue in r 7 and whether or not the proceedings ought to be transferred to the General Division. He relied on the fact that the evidence in the case extended to 363 pages, while the defendants provided 150 pages of written submissions. Mr Levingston referred to parts of the transcript where the Assessor made remarks which, according to Mr Levingston, disclosed that the Assessor was overwhelmed by the volume of material provided to him.

18 Mr Levingston’s submission assumes that the Assessor did not turn his mind to the application of r 7. I do not think that there is any basis for me to draw a conclusion one way or the other on that issue. In my view, the Assessor’s remarks do not indicate that he was overwhelmed by the complexity or difficulty of the matters in dispute, but only that he considered that the material was voluminous.

19 In any event, in my view, the appeal on this ground is misconceived. The Small Claims Division of the Local Court does not lack jurisdiction to hear disputes which are complex or difficult. Its jurisdiction is defined in other ways: see Division 1 of Part 7 of the Local Courts Act. Rule 7(1) does require proceedings to be transferred to the Court’s General Division if the Court forms the relevant opinion. However, even then, r 7(2) provides that proceedings that have been transferred to the General Division on that basis may be transferred back to the Small Claims Division. That indicates that the Court’s opinion as to the complexity, difficulty or importance of the matters in dispute is not the measure of its jurisdiction.

20 Accordingly, even if I were of the opinion that the matters in dispute were so complex and difficult that the proceedings ought more properly to have been heard in the Court’s General Division, it would not follow that the Court lacked jurisdiction to deal with the claims. The first ground of appeal must be rejected.

The claim for legal costs

21 Mr Levingston submitted, in the alternative, that the Small Claims Division lacked jurisdiction to determine the claims brought under s 80 of the Strata Schemes Management Act. Section 80 provides:

“(1) An owners corporation may recover as a debt a contribution not paid at the end of one month after it becomes due and payable, together with any interest payable and the expenses of the owners corporation incurred in recovering those amounts.

(2) Interest paid or recovered forms part of the fund to which the relevant contribution belongs.”

22 Mr Levingston submitted that the Small Claims Division of the Local Court has no power to determine a claim for legal costs under that section. His argument was principally based on the terms of s 67(3) of the Local Courts Act 1982 which provides:

“Except as may be provided by the rules, a Court sitting in its Small Claims Division has no power to award costs to or against a party to proceedings in the Division”.

23 He submitted that s 80 should not be construed so as to prevail over that restriction. Mr Levingston further submitted that claims for legal costs are governed by the regime under the Legal Profession Act 2004 and that, in light of those provisions, s 80 should not be construed so as to include an entitlement to recover legal costs.

24 At the time the appeal was argued, there was some support for those submissions in Dimitriou v Owners of Strata Plan 36131 [2008] NSWSC 116. In that case, Malpass AsJ expressed the view at [22] that s 80 of the Strata Schemes Management Act did not “overturn” the restrictions on the awarding of costs in the Local Court or the procedures for assessment and recovery of costs under the Legal Profession Act. His Honour also expressed support for the view that the word “expenses” in s 80 does not include legal costs and disbursements: at [23].

25 Since the hearing of the present appeal, that decision has been overturned by the Court of Appeal in Owners of Strata Plan 36131 v Dimitriou [2009] NSWCA 27. The Court held unanimously that the word “expenses” in s 80 does include legal costs and disbursements: at [33] per Hodgson JA; at [62] per Basten JA; at [116] per Handley AJA.

26 As to the question whether the Small Claims Division of the Local Court has power to determine a claim to recover legal costs and disbursements as “expenses” under s 80, the Court of Appeal held by majority that s 80(1) confers a right on a corporation to recover legal costs as expenses as a component of the principal judgment of the Court, independently of any costs orders that may or may not be made in those proceedings: at [34]-[36] per Hodgson JA; at [127] per Handley AJA; Basten JA contra at [102].

27 It should be noted that the Court also held, by majority, that the claim for expenses, including legal costs and disbursements, must be made in the same proceedings as the claim for the contributions. Hodgson JA expressed the view at [47] that the payment of arrears of contributions before proceedings are commenced would preclude an action for recovery of associated expenses. His Honour said, however, that payment of arrears of contributions after proceedings have been commenced would not preclude continuation of those proceedings to obtain a judgment for expenses including legal costs: see also Handley AJA at [142]; Basten JA contra at [106].

28 In the present case, Mr and Mrs McClymont alleged that they had paid the outstanding contributions prior to the commencement of the first set of proceedings. However, the Assessor held against them on that issue. In any event, they did not pay the whole amount claimed. It follows that the owners corporation had a complete cause of action to recoup the expenses of recovering the unpaid contributions the subject of the first set of proceedings at the time it commenced those proceedings. It was accordingly entitled to continue those proceedings after payment of only part of the claim: Dimitriou per Handley AJA at [142].

29 Accordingly, the decision of the Court of Appeal in Dimitriou is authority for the proposition that the Small Claims Division of the Local Court does not lack jurisdiction to determine the owners corporation’s claim under s 80 for its legal costs incurred in recovering unpaid contributions from Mr and Mrs McClymont. This ground of appeal must be rejected.

Was there a denial of natural justice on the basis that full reasons were not given?

30 The requirements of natural justice extend to the obligation to give reasons for the finding which a magistrate or assessor is making: Kells v Waters [2007] NSWSC 885 at [77] per Harrison J. The obligation extends to the Smalls Claims Division: see Gould v Kok (Supreme Court of New South Wales, Young J, 23 May 1994, unreported).

31 Mr and Mrs McClymont do not maintain that the reasons were generally inadequate. They contend, however, that the reasons were inadequate in respect of certain issues they had identified in their written submissions in the Court below. They say that no reasons were given at all in respect of issues 2, 3 and 16, and that the reasons given in respect of issues 17 and 18 are “not identifiable”. Mr Levingston did not develop that contention by taking me to the content of the issues in question. Rather, the submission was based on the broad proposition that it was not possible to identify how the Assessor dealt with the issues from his written decision.

32 I do not accept that submission. As noted by Mr Radman, who appeared for the owners corporation, the written decision of the Assessor did address each of the issues in question. The complaint in respect of issues 2 and 3 appears to derive from no more than the fact that the Assessor did not identify those submissions by number. Each is, however, reproduced in terms in the written decision and addressed by the Assessor.

33 Issue 16 in the Court below stated:

“On 7 February 2007 [the date on which the default judgment was set aside] the Magistrate strongly advised the Plaintiff that they would need to produce evidence for future proceedings that their levy payment account recording procedures efficiently and accurately accounted for levy payment deposits from Lot Owners. The evidence produced by the Plaintiff for these proceedings can be adduced to not address this concern but contribute to the further delay in accounting for Lot Owners’ levy payments.”

34 In respect of that issue, the Assessor said, “the Court finds no difficulty with submission # 16.” Mr Levingston did not say how else the Assessor ought to have addressed that point. Reading the Assessor’s decision as a whole, it is apparent that he was aware of the need for the owners corporation to prove the amounts claimed and that he had considered the evidence of the witness for the owners corporation on that issue. In that context, in my view, there was no need to say more in respect of issue 16.

35 The Assessor gave no separate reasons in respect of issues 17 and 18, but indicated that he “could only repeat” his earlier comments on the legislation and the case law. That indicates that he considered those points, but was not satisfied that they raised any impediment to the owners corporation’s claims. Mr Levingston has not identified any particular aspect of those submissions that required closer attention. As I have already indicated, he did not take me to the detail of the submissions or the decision at all.

36 The Assessor was not required to give lengthy or elaborate reasons addressing every point raised in detail: Pender Robwenphi Pty Limited [2008] NSWSC 1144 at [56] per Hall J. I am not satisfied that the Assessor was required, in the circumstances of this case, to give further reasons. Accordingly, this ground of appeal must be rejected.

Was there a denial of natural justice on the basis that the McClymonts were prohibited from cross-examining witnesses?

37 The procedure that applies to proceedings in the Small Claims Division of the Local Court is set out in s 70 of the Local Courts Act 1982. Section 70(4) provides that witnesses may not be cross-examined except in circumstances in which cross-examination is authorised by a Practice Note.

38 Local Court Practice Note No 2 of 2005 provides that there is no right to cross-examine a party or a witness in the Small Claims Division. The Practice Note makes provision for a direction to be made at a pre-trial review that a witness attend the trial of the proceedings to be orally examined. However, no such direction was made or sought in the present case.

39 There is nothing inherent in those procedures that runs counter to the requirements of natural justice: Wakim v Mathiew Pty Ltd trading as Dove Migration Services [2002] NSWSC 405 at 32 per O’Keefe J. There may, however, be cases in which the denial of an oral hearing or the right to cross-examine will constitute a denial of natural justice: Wakim at [30]. The abandonment of the normal rules of evidence and procedure should not be allowed to give rise to unfairness even where justice is being administered in relation to small claims: Wende v Finney [2005] NSWSC 927 at [27] per Howie J.

40 Mr and Mrs McClymont did not make any application to cross-examine the deponents of witness statements filed on behalf of the owners corporation, nor did they seek to have the proceedings transferred to the General Division at any stage. Mr Levingston submitted, however, that this was a case where cross-examination should have been available to enable them to explore certain matters. He identified two parts of the Assessor’s judgment which, so it was submitted, indicate that cross examination should have been available “to explore a number of matters”.

41 The matters identified by Mr Levingston do not persuade me that this was a matter where the prohibition on cross examination in the Small Claims Division denied the plaintiffs natural justice. The first matter identified was a comment by the Assessor on the likelihood that the owners corporation would have behaved in the manner contended by Mr and Mrs McClymont. That is the kind of assessment frequently made in that division without the benefit of seeing witnesses or hearing cross examination.

42 The second matter identified was a remark made by the Assessor as to the absence of any expert evidence from Mr and Mrs McClymont to contradict the likely accuracy of the records of the owners corporation. It has not been demonstrated how the ability to cross examine might have overcome any such deficiency in the case put before the Assessor by Mr and Mrs McClymont.

43 I do not accept that the matter was one in which the prohibition against cross-examination resulted in a denial of procedural fairness. This ground of appeal must also be rejected.

Failure to pronounce the orders in open court

44 Ground 4 in the amended summons states:

“The plaintiffs were denied natural justice as the Court failed to observe the common law and statutory rules UCPR r 36.3, requiring the judgment to be delivered in open court.”

45 The amended summons provides “particulars” of that ground, namely, that the reasons were posted to Mr and Mrs McClymont.

46 This ground raises a fundamental question as to whether the Local Court has power to give judgments and make orders other than in open court.

47 Before considering that question, it is necessary to set out the events surrounding the delivery of the reserved decision of the Assessor. The hearing concluded on 10 October 2007, having continued over several separate days. At that stage, the Assessor indicated that he would give a written decision. The solicitor for the owners corporation, Mr Radman, asked whether he proposed to call the parties back for the decision. The Assessor said: “No I propose to post it to them”. He did not specify a date on which that would occur. On 23 October 2007 the Assessor posted the written decision to the parties.

48 In respect of the first proceedings, the decision stated “there is a verdict and judgment in favour of the plaintiff in the sum of $9,548.94 together with issue and service fees of $111.00 against the defendants.” The Assessor also awarded legal costs in those proceedings. In the second matter, the Assessor said “there will be a verdict and judgment in favour of the plaintiff against the defendants in the sum of $8,432.50 together with issue and service fees of $170.00”. No legal costs were awarded in those proceedings. In each case, the Assessor directed the Registrar to calculate interest in accordance with the Strata Schemes Management Act and to advise the parties in writing.

49 By separate notices each dated 26 October 2007, a Registrar of the Court advised the parties in the following terms: “please note that at the hearing on 23/10/2007 the Court made the following order in respect of the above matter”. The notices set out orders in accordance with the Assessor’s written decision and the interest calculated by the Registrar.

50 Less than a week after the decision was sent to the parties, the owners corporation sought to have the judgment in the second set of proceedings set aside or varied on the basis that the Assessor had deducted an amount from the claim in those proceedings which he thought duplicated an amount claimed in the first proceedings, when in fact it did not. However, the Assessor was by then on leave and the letter did not come to his attention until he returned in late November 2007.

51 In the meantime, on 20 November 2007, Mr and Mrs McClymont commenced this appeal against the Assessor’s decision dated 23 October 2007. The summons included a ground that the Court had denied them natural justice by “failing to follow proper procedures for the giving of judgments as set out in rule 36.3 of the Uniform Civil Procedure Rules 2005.”

52 On 4 February 2008, the proceedings were relisted before the Assessor for the hearing of the owners corporation’s application to have the judgment in the second proceedings set aside or varied. The transcript refers only to the second set of proceedings by number, but it appears that both files were before the Court. The owners corporation applied to have the judgment corrected under either r 36.15 or r 36.17. The Assessor heard submissions from both parties. After a short adjournment, the Assessor pronounced an order “amending” the judgment in the second proceedings and delivered his reasons for doing so. All of those events occurred in open court. There is no appeal against that decision.

Publicity is the “authentic hall-mark” of judicial procedure

53 It is well established that legal proceedings should ordinarily be heard and determined in public. That requirement was described as “the ordinary rule” by the High Court in Russell v Russell (1976) 134 CLR 495 at 520.5 per Gibbs J. Publicity is “the authentic hall-mark of judicial as distinct from administrative procedure”: McPherson v McPherson [1936] AC 177; cited in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 53B per Kirby P.

54 In Raybos, the Court of Appeal acknowledged that the common law rule has commonly been modified by specific statutory provisions that permit courts to proceed in the absence of the public: at 54C per Kirby P. However, such statutes will usually be strictly and narrowly construed, since they derogate from the tradition of open justice: Raybos at 55B; see also Palmer v Clarke (1989) 19 NSWLR 158 at 165G.

55 In Palmer, Kirby P observed that insistence on formalities in the required manner of giving decisions in the case of subordinate courts and tribunals is a reflection of the fact that they have no inherent powers. The authority for the acts of inferior courts and tribunals can only be found in the powers and functions conferred on them by their legislation: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476.

56 It follows that the Local Court, being an inferior court founded by legislation, has no authority to depart from the requirements of the statutory rules of court as to the giving of judgments: Palmer at 166E-167C per Kirby P, Samuels JA agreeing at 173G.

57 In Palmer, a Judge of the District Court had pronounced his judgment orally in open court, and made a brief start on the process of stating his reasons, but he did not complete that task that day. His Honour provided comprehensive reasons three months later. The decision is accordingly concerned with the requirement to give reasons at the time of giving judgment. There was no issue in Palmer as to a failure to pronounce the orders in open court. Nonetheless, the decision emphasises the long-standing tradition of the common law that judgments should be pronounced in open court.

Does the Local Court have power to give a reserved decision other than in open court?

58 The rules that now govern the giving of judgments are to be found in Part 36 of the Uniform Civil Procedure Rules. The rule relied upon by Mr and Mrs McClymont, r 36.3, reads as follows:

“(1) If in any proceedings a judicial officer reserves his or her judgment or decision on any question, he or she:

(a) may give the judgment or decision, either in open court or in the absence of the public :

(i) at the venue for those proceedings, or

(ii) at any other place at which he or she is authorised to hear or dispose of those proceedings, or

(b) may reduce the judgment or decision to writing, sign it and forward it to the registrar at the venue for the proceedings.

(2) If a registrar receives a judgment or decision forwarded under subrule (1) (b):

(a) the registrar must appoint a time for the judgment or decision to be read, and

(b) the registrar must give at least 24 hours’ notice to the parties, in writing or otherwise, of the appointed time, and

(c) at the appointed time, the judgment or decision must be read by another judicial officer of the court, or by the registrar, whether or not the court is sitting at that time.”
[Emphasis added.]

59 Curiously, r 36.3 does not apply, in terms, to Assessors. Pursuant to s 70 of the Local Courts Act 1982 the jurisdiction of the Local Court in its Small Claims Division may be exercised by a Magistrate or an Assessor. However, r 36.3 deals with the ways in which a “judicial officer” may give a reserved decision. The term “judicial officer” is defined in s 3 of the Civil Procedure Act 2005 as having the same meaning as specified in s 3 of the Judicial Officers Act 1986. That definition includes Magistrates but does not refer to Assessors. I am satisfied, however, that that is merely due to legislative oversight. In my view, it is appropriate to assume that an Assessor is bound, and has authority, to proceed in accordance with the procedure under r 36.3.

60 The contention put by Mr and Mrs McClymont assumes that the only method for giving a judgment or making an order allowed in the Local Court is in open court. That submission accords with the long tradition of the common law, but it is not in accordance with the express words of r 36.3.

61 It has been held that r 36.3(1)(a) in its application to the Supreme Court has the effect that a judgment or decision may be given at any place at all: King Investment Solutions v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441 at [153] per Campbell J. However, that decision was founded, in part, on s 11 of the Supreme Court Act 1970 (which abolishes the distinction between Court and chambers) and the fact that the Supreme Court is a superior court of record. Campbell J expressly declined to address the situation in the District Court or the Local Court following the adoption of the Civil Procedure Act: at [154].

62 Accordingly, this appeal appears to be the first case that has raised the question whether, under the Uniform Civil Procedure Rules, the Local Court may give judgment in respect of a reserved decision other than in open court and in the absence of the parties. The parties did not refer me to any authority precisely on that point.

63 Rules in force before the adoption of the Uniform Civil Procedure Rules expressly permitted judgment to be given in chambers in both the District Court (r 6 of the District Court Rules: see Palmer at 167E) and the Local Court (r 7 of the Local Court (Civil Claims) Rules: see Cumming v Tradebanc International Ltd [2002] NSWSC 70 at [41]).

64 However, those rules specifically required notice to be given to the parties in advance of judgment being given. At the time Palmer was decided, rule 6 of the District Court Rules provided that:

“(1) A Judge or registrar in chambers may, in respect of any proceedings, give any judgment or decision, or make any order, which he could lawfully give or make in court and which he considers may be properly given or made in chambers, whether those chambers are situated at the proper place in relation to those proceedings or at any other proclaimed place.

(2) A Judge or registrar shall not proceed in chambers under subrule (1) unless he is satisfied that all parties appearing and all other persons properly interested have adequate notice of his intention so to proceed and will have adequate notice of any judgment decision or order that he is likely to give or make in chambers.”
(3) …….

65 In Palmer, Kirby P stated (at 167E) that the process permitted by that rule was “normally confined to disposal in chambers of undefended actions”. Separately, his Honour emphasised the care taken by those rules to ensure that the parties were on notice so that they may attend and hear the judgment given: at 168B.

66 What is curious about r 36.3(1) is that it authorises the giving of a reserved decision “in the absence of the public” without any express requirement for advance notice to the parties. If the judgment is reduced to writing, signed and forwarded to the Registrar (under r 36.3(1)(b)), the Registrar must give notice (under r 36.3(2)(b)) of the appointed time for the judgment to be “read”, but no similar obligation is stated in respect of the situation where the judicial officer proceeds under UCPR 36.3(1)(a) to “give” the judgment in the absence of the public.

67 Rule 36.2, which deals with written reasons, is also silent on the question of notice. That rule permits the court to state its judgment orally, but there is no requirement for that to be done in open court or on notice to the parties (unless that is implicit in the reference in that rule to “the court”, in contrast to the reference in r 36.3 to “a judicial officer”).

68 For my part, regardless of the terms of those rules, I do not think it would be permissible for the Local Court to adopt a practice of delivering reserved decisions other than on advance notice to the parties. I doubt whether such a procedure would be regarded as permissible in this Court, inherent powers notwithstanding. In Palmer (at 166C), the Court noted the importance of fixing the time of the delivery of judgment and protecting appeal rights. Those considerations were cited as reasons for insisting on strict adherence to procedures laid down by legislation. Equally, they are reasons for insisting that notice be given even where that is not an express requirement of the legislation. In my view, it would ordinarily be a requirement of procedural fairness, after a contested hearing, that such notice be given.

69 Leaving aside the question of notice, however, the plain terms of r 36.3 contemplate circumstances in which judgment may be given other than in open court. I see no reason to construe that rule to mean something other than what it says. In my view, r 36.3 confers authority on the Local Court to give judgment in respect of a reserved decision other than in open court, provided that the requirements of that rule are strictly complied with, and subject to the requirement of procedural fairness to give advance notice to the parties of that event. In my view, in accordance with the observations of Kirby P in Palmer at 167E, the procedure of giving judgment in the absence of the public ought to be confined to disposal in chambers of undefended actions. However, pursuant to the express words of r 36.3(1) it is not impermissible in other circumstances.

Were the requirements of the rules strictly complied with in the present case?

70 The critical question is how the judgment was given in the present case. Having reserved his decision, it was open to the Assessor to proceed under either r 36.3(1)(a) or (b). The procedure under r 36.3(1)(b) is clear. It requires the judicial officer to reduce the judgment to writing, sign it and forward it to the Registrar to be dealt with in accordance with r 36.3(2). In the present case, however, the procedure contemplated in r 36.3(2) was clearly not followed.

71 The alternative course was for the Assessor to proceed under r 36.3(1)(a). The procedure required under that rule is less clear. The rule permits judgment to be given “either in open court or in the absence of the public”. It assumes an alternative to the process of reducing the judgment to writing contemplated in r 36.3(1)(b) but, apart from regulating where the judgment may be given, r 36.3(1)(a) is otherwise silent.

72 Reading Division 1 of Part 36 as a whole, it appears that the only alternative method of giving judgment is for the court to “state its judgment, order or decision orally” in accordance with r 36.2. Taken on its own, r 36.2 might be thought to impose a requirement for that to occur in open court, since it refers, in terms, to “the court”. However, r 36.3 specifically provides that a “judicial officer” may give judgment in the absence of the public.

73 Reading those rules together, if the Assessor was proceeding under r 36.3(1)(a), he was probably required to give judgment by stating the orders orally. What is clear, however, is that he was authorised to do so in the absence of the public. That is, he was authorised to give judgment in chambers or elsewhere, provided that it was “at the venue for the proceedings” (in this case, the Downing Centre).

74 It was a further requirement that a written copy of the judgment, including the court’s reasons for it, was then delivered to the parties in one of the ways identified in r 36.2(2). As held in Palmer, the requirement is that the reasons be provided at the time the judgment is given: 169C per Kirby P; 173G per Samuels JA. In this case, that requirement was satisfied.

75 A consideration of the steps taken in this case is governed by the legal presumption that all acts required to be done have been done “rightly and regularly”. That presumption applies until the contrary is shown by evidence sufficient to overturn the presumption: Cumming at [42]. If the Assessor was required to state the orders orally, there is no evidence in the present case to rebut the presumption that he did so. I am not satisfied that the Assessor failed to comply with the statutory requirements of r 36.2 and r 36.3. However, that does not overcome the failure to give notice.

Was there a denial of natural justice in the present case?

76 In contrast to r 6 of the District Court Rules and r 7 of the Local Court (Civil Claims) Rules which were in force prior to commencement of the Civil Procedure Act, there is no express requirement in r 36.2(1) or r 36.3(1)(a) for the Court to give notice. As I have already indicated, however, in my view advance notice of the giving of a reserved decision is a fundamental requirement of procedural fairness. Judgments of the kind delivered by the Assessor are usually given in open court after notice to the parties. Compliance with the requirement to give notice would be all the more important if it were proposed to give judgment other than in open court. In the present case, the parties were informed of the course proposed, but it appears they were not informed in advance of the date on which judgment was to be given.

77 I should also refer to Part 2 of the Local Courts (Civil Procedure) Rules, which deals with proceedings in the Small Claims Division. Rule 10 provides that the procedure to be followed at a trial of any proceedings in that Division is to be determined by the Court. Rule 10(3) provides that proceedings may be heard and determined by the Court even if one or more of the parties is absent. However, I do not think that that rule overcomes the fundamental requirement of procedural fairness that, at least after a contested hearing, the parties should have advance notice of the date on which the reserved decision will be given.

78 It follows that Mr and Mrs McClymont were denied natural justice by the failure to give advance notice of the delivery of the reserved decision. It remains to consider what is the appropriate order to determine the appeal.

79 Mr Levingston submitted that there are three possible “outcomes”. First, he said I could find that the appeal is incompetent, citing the decision in Cumming. I am not satisfied that the reasoning in Cumming compels the same conclusion in the present case. Cumming was decided before the adoption of the Uniform Civil Procedure Rules. In that case, Bergin J observed at [58] that the appeal in respect of one of the decisions under consideration was incompetent because the applicable Local Court rule provided that a judgment or order was effective from the date it was “given” by the Magistrate or “read” by the Registrar. Her Honour had found at [57] that the decision had not been “given or read” in accordance with that rule. I have not made that finding in the present case.

80 The second outcome identified by Mr Levingston is that the appeal can be remitted to the Local Court to be delivered in accordance with the requirements of the rules. As I have indicated, however, I am not satisfied that the judgment was not delivered in accordance with those requirements.

81 The third option identified by Mr Levingston was that the matter be remitted to the Local Court for rehearing, as occurred in Palmer. I do not think there is any occasion to remit the present matter for rehearing. In Palmer, the orders had been pronounced orally but the Judge did not give adequate reasons for the decision at that time. He supplemented the record of his judgment with full reasons three months later. That approach contradicted the requirement now reflected in r 36.2(2).

82 The circumstances of the present case are quite different. The parties were not deprived of the Assessor’s reasons at the time they were made aware of the decision. The reasons were made available to the parties at the time the decision was communicated to them. Priestley JA would not have overturned the judgment in Palmer in such circumstances (at 174A).

83 Further, I am not satisfied that the Assessor’s reasons were inadequate as contended by Mr and Mrs McClymont. Apart from the question of the failure to give advance notice of the delivery of the reserved decision, the plaintiffs have not established any want of jurisdiction or denial of natural justice. The fact that this appeal was lodged within 28 days of the decision indicates that the failure to give notice did not have any adverse impact on the right of appeal. In those circumstances, I think it would be absurd to remit the proceedings to the Local Court for rehearing. In my view, this is a situation where compliance with the requirements of natural justice could have made no difference to the outcome: cf Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.5.

84 The appeal should be dismissed.

Orders:

1. In respect of proceedings in the Local Court No. 1366/07, the appeal is dismissed.

2. In respect of proceedings in the Local Court No. 122303/06, the appeal is dismissed.

3. I order the plaintiffs to pay the defendant’s costs of the appeal.

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