Naboulsi v Khalil

[2024] NSWSC 177

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Naboulsi v Khalil [2024] NSWSC 177

Hearing dates:

28 February 2024

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Dismiss the Second Further Amended Summons.

2. The plaintiff is to pay the defendant’s costs.

Catchwords:

APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of $30,000 – where defendant loaned money to his first cousin – cousin asserts third party borrowed money and ownership of a BMW X6 was transferred as security – where cousin was unrepresented litigant – cousin subpoenaed car registration documents – subpoenaed documents show ownership was transferred to the defendant four months before the loan was made – registration documents not tendered at trial – Magistrate gave judgment against cousin – whether Magistrate denied procedural fairness by not facilitating tender of the registration documents – whether failure to tender documents deprived cousin the possibility of a successful outcome – questions of fact – where Magistrate had explained the procedure for tendering documents and asked what material was to be tendered – held Magistrate was not obliged to say anything further – no denial of procedural fairness – subpoenaed documents inconsistent with BMW being provided as security – evidence overwhelmingly supported defendant’s case – no substantial miscarriage or wrong – grounds of appeal rejected – summons dismissed

Legislation Cited:

Local Court Act 2007 (NSW) ss 39, 40, 41

Uniform Civil Procedure Rules 2005 (NSW) r 51.53

Cases Cited:

Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Hamod v State of New South Wales and Anor [2011] NSWCA 375

John Maiolo t/as M & N Peninsular Kitchens & Joinery v Chiarelli [2017] NSWSC 982

Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36

Norfeld Pty Ltd v Amanda Lee Jones Trading as Watermark Patent & Trademark Attorneys [2014] NSWSC 992

Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, 16 June 1986)

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Wassim Naboulsi (Plaintiff)
Bass Khalil (Defendant)

Representation:

Counsel:
K Asal (Plaintiff)
L James (Defendant)

Solicitors:
Crimcorp Defence Lawyers (Plaintiff)
Abbas and Co Lawyers (Defendant)

File Number(s):

2023/172383

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Common Law

Citation:

Nil

Date of Decision:

14 April 2023

Before:

Magistrate Walsh

File Number(s):

2023/172383

Judgment

1. The present defendant, Bass Khalil, commenced proceedings in the Local Court on 10 November 2020, claiming $30,000 which he alleged was a loan he had made to Wassim Naboulsi, the present plaintiff. To avoid confusion, I will refer to the parties by their names.

2. The loan was alleged to have been made in three tranches as follows:

3 October 2016:      $5,000

12 November 2016:      $20,000

15 November 2016:      $5,000

In his defence of the claim, Mr Naboulsi denied that Mr Khalil had ever loaned money to him.

3. The proceedings were heard by Magistrate Walsh in the Local Court on 21 October 2022 and 7 November 2022. The learned Magistrate gave judgment on 14 April 2023 in favour of Mr Khalil for $43,518.65, being the loan sum, interest of $13,216.65 and fees of $302. Mr Khalil was also awarded costs.

4. Mr Naboulsi now appeals against that judgment on three grounds as follows:

1. The learned Magistrate erred in law by not properly determining whether the document containing the registration details of a BMW X6 (CTO 2QW) (“Document”) produced by Service NSW under subpoena should be admitted into evidence.

2. The learned Magistrate erred in law by not admitting the Document into evidence.

3. The learned Magistrate erred by failing to accord the appellant procedural fairness by failing to admit the Document into evidence.

Mr Khalil’s case

5. Mr Khalil and Mr Naboulsi are first cousins although they did not meet until mid-2014 despite each being aged in their forties.

6. Mr Khalil said that Mr Naboulsi told him in late 2015 that he wanted to start his own restaurant in Bankstown. In August 2016, Mr Naboulsi said he had secured a lease for a shop at The Boulevarde in Bankstown but he needed a loan until he received his settlement from the break up of a partnership at a café.

7. On 3 October 2016, Mr Naboulsi asked to borrow $5,000 which he said he needed for the rent and to pay some tradesmen for work being carried out at the shop. He said the loan would be repaid after a six week period when he was expecting to receive his settlement payment from the café. Mr Khalil went home and obtained $5,000 in cash which he then gave to Mr Naboulsi.

8. On 12 November 2016 the two men were together at Mr Naboulsi’s shop when Mr Naboulsi requested a further loan of $20,000 for the shop fit-out and other expenses. Mr Khalil provided $20,000 in cash that day to Mr Naboulsi.

9. Three days later, on 15 November 2016, Mr Naboulsi mentioned that he was short $5,000 for the signage and equipment to finish the shop. He asked to borrow a further $5,000 which he said would be repaid within a couple of days from his settlement of $70,000 from the café. Mr Khalil agreed and gave him the $5,000.

10. Sometime in late December 2016 or early January 2017, Mr Khalil sought repayment of the money. Mr Naboulsi said he would have the money the following week.

11. On 7 January 2017, Mr Khalil went with his two brothers, Shadi and Mohammed, and demanded that Mr Naboulsi repay the money. As a result of the way the demands were made on Mr Naboulsi, he called the police. He provided a statement to the police, and apprehended domestic violence orders (ADVOs) were then issued against Mr Khalil and his two brothers.

Mr Naboulsi’s case

12. Mr Naboulsi said that in about November 2016 a mutual friend of both him and Mr Khalil met at a takeaway shop in Bankstown. The mutual friend was Waleed Omar. Mr Omar wanted to borrow $20,000 from Mr Khalil, and Mr Omar agreed to transfer ownership of a BMW X6 motor vehicle as security for the loan. The loan was to be repaid within six weeks together with interest of $10,000, and Mr Khalil would then transfer ownership of the motor vehicle back to Mr Omar.

13. The following day, Mr Khalil called Mr Naboulsi and said he had given the $20,000 to Mr Omar. Mr Omar then gave Mr Naboulsi the registration papers for the BMW to enable the transfer. Mr Naboulsi said that about three days later he went with Mr Khalil to the Bankstown motor vehicle registry to effect the transfer.

14. On about 1 December 2016, Mr Khalil rang Mr Naboulsi to inform him that he had had an accident in the motor vehicle, and it had been towed away for repair. A few days later, Mr Khalil rang Mr Naboulsi to say that the insurance company would pay him $35,000 because the motor vehicle was to be written off. Mr Naboulsi said that at about the end of December 2016 Mr Khalil told him that he had received the $35,000 from the insurance company, and that he regarded the loan as “all done”, and he was not under an obligation to return any security to Mr Omar.

Mr Khalil’s case in reply

15. Mr Khalil denied lending any money to Mr Omar. He said on each of three occasions the request for money was from Mr Naboulsi.

16. Mr Khalil also said that he did not agree that any BMW X6 motor vehicle was given to him as security for any loan of $20,000. He said that in about September 2016 he borrowed a BMW X6 from Mr Naboulsi for a short time because he had to do some repairs on his own car, and he was regularly helping out Mr Naboulsi at the shop, which involved Mr Khalil travelling to and from Ingleburn. He said he did have a minor accident in the vehicle, but it was subsequently repaired and returned to Mr Naboulsi sometime between November 2016 and January 2017. He said the vehicle was never written off, and he produced a document from revs.com.au in relation to the BMW X6. That document showed that the vehicle had never been written off.

The proceedings in the Local Court

17. Mr Khalil was represented by Mr L James of counsel, and Mr Naboulsi appeared for himself.

18. On 21 October 2022, both Mr Khalil and his brother Mohammed gave their evidence by affidavits and were cross-examined by Mr Naboulsi. Mr Naboulsi used an interpreter but the transcript suggests that he had some understanding of English.

19. After the two witnesses were cross-examined, Mr Khalil’s case was closed. The Magistrate then received an affidavit from Mr Naboulsi and a document tendered by Mr Naboulsi which was said to be a screen shot of an SMS sent by Mr Khalil to Mr Naboulsi (the transcript wrongly describes this document (Exhibit B) as an affidavit of Mr Naboulsi of 24 June 2022). The proceedings were then adjourned part heard to 7 November 2022.

20. The issue to which the grounds of appeal relate concerns the allegation by Mr Naboulsi that the BMW X6 was given to Mr Khalil as security for the loan made to Mr Omar. After the matter was adjourned part heard, and before the resumed date, Mr Naboulsi issued a subpoena to the Proper Officer for Transport for New South Wales to produce documents relating to the registered owners of the BMW X6. The documents show that Mr Khalil apparently transferred ownership of the motor vehicle to a Patricia Butler on 22 December 2016. Prior to that there was a transfer from Rabih El Mobasser Dandan to Mr Khalil on 6 June 2016. I will refer to the subpoenaed documents as “the registration documents” or “the documents”, noting that they are the same as the “Document” referred to in the grounds of appeal.

21. Mr Naboulsi’s complaint on appeal is that he either wanted to tender the registration documents or believed that they were in evidence, and that the Magistrate denied him procedural fairness by not facilitating their being tendered by Mr Naboulsi (to put it as neutrally as possible). Mr Naboulsi submitted that if these documents had gone into evidence, they would have cast doubt on the credibility of Mr Khalil, with the result that he (Mr Naboulsi) was deprived of the possibility of a successful outcome.

22. When the matter was listed for further hearing on the resumed date, 7  November 2022, the Magistrate said he would call through the list, but he asked the parties not to go away. Mr Naboulsi’s interpreter then said:

Your Honour, I’ve got a subpoena. I need the permission from the Court.

23. The Proper Officer for Transport for New South Wales was then called and he produced the registration documents in response to the subpoena. Counsel for Mr Khalil had not even seen a copy of the subpoena. When a copy was handed to him he was given time to take instructions.

24. When the Magistrate had finished calling through his list and returned to the matter, Mr James indicated that there was no objection to the subpoena but, depending on what documents were produced, he said he might need to seek some instructions. The Magistrate granted general access to the parties, with Mr Naboulsi to have first right of inspection. The Magistrate then adjourned to enable the documents to be inspected.

25. When the Magistrate returned to the bench, Mr James informed the Court that the documents produced to the Court under subpoena dealt with the BMW that had been the subject of previous discussion in the proceedings. The transcript then reads:

JAMES:   There are matters that arise and I – simply because of the time in which they’ve been produced, none of those matters have been put to the plaintiff’s witnesses. The plaintiffs are at a disadvantage in that they haven’t been given an opportunity to either consider the material, although we’ve now taken instructions; or to be questioned on the material. I only raise that as a matter of prejudice. What might be the --

HIS HONOUR:   Well it depends very much on what the defendant does with the documents, if anything, doesn’t it?

JAMES:   That’s so. So, what might be the most appropriate course is depending on what the defendant does with the documents, there may be an application to reopen -

HIS HONOUR:   Yes, whether I grant leave for the plaintiff to reopen their case or call a case in reply.

JAMES:   That should deal with any issue, and it will depend on how the defendant uses the material.

(emphasis added)

26. The Magistrate then told Mr Naboulsi that he (the Magistrate) had admitted Mr Naboulsi’s affidavit into evidence, and he was now to be cross-examined.

27. At the conclusion of the cross-examination, the Magistrate invited Mr Naboulsi to clarify any of the answers he had given in cross-examination if he wished to do so. Mr Naboulsi said that he did not. The Magistrate then said to Mr Naboulsi:

Mr Naboulsi, as that is all of the affidavit and statement evidence that you have filed, I take it that that is the close of your case, is that correct?

Mr Naboulsi said “Yes”.

Legislation and legal principles

28. The Local Court Act 2007 (NSW) relevantly provides:

39 Appeals as of right (cf LCA 1982, section 73)

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

…

40 Appeals requiring leave (cf LCA 1982, section 74)

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

(2) …

41 Determination of appeals (cf LCA 1982, section 75)

(1) The Supreme Court may determine an appeal made under section 39 (1) or 40 -

(a) by varying the terms of the judgment or order, or

(b) by setting aside the judgment or order, or

(c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or

(d) by dismissing the appeal.

29. In Hamod v State of New South Wales and Anor [2011] NSWCA 375 Beazley JA (as her Excellency then was) (with whom Giles and Whealy JJA agreed) set out principles relevant to a court dealing with an unrepresented litigant. Her Honour said:

[309]   Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

"A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'."

[310]   However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

[311]   Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.

[312]   Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.

[313]   The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:

"But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant."

[314]   Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.

[315]   There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:

"A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6."

[316]   The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.

30. In Norfeld Pty Ltd v Amanda Lee Jones Trading as Watermark Patent & Trademark Attorneys [2014] NSWSC 992 Hamill J noted at [92] that the fact that a litigant is not represented by a lawyer may have some relevance to the content of the requirements for natural justice in a particular case. His Honour then set out the following extracts from cases dealing with the principles to be applied where a litigant is unrepresented:

[93]   In Jeray v Blue Mountains City Council [2010] NSWCA 367] Allsop P said at [6]:

"At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court. A sharp line between rules and consequences cannot be drawn in this respect. Analogies of the rules of the game and how the game is played may be helpful at one level, but ultimately each circumstance has to be analysed and evaluated to see whether in a human context, a fair hearing has been provided."

[94]   In the same case, MacFarlan JA said [54]:

"...the respondents accept that in fulfilling the basic obligation to ensure a fair trial, additional obligations may fall upon a judge where there is a litigant in person. Indeed, the respondent's counsel accepted that the law in this respect was appropriately stated by Justice Basten ... in Lee v Cha [2008] NSWCA 13 at [49]. Justice Basten said:

'The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the Court as is reasonably practicable for the purpose of ensuring a fair trial.'"

[95]   In Boulos v Martin (No 2) [2012] NSWCA 161 Whealy JA said at [22]-[23]:

"[T]here are not two laws to be applied where a litigant is unrepresented; one for the benefit of the unrepresented person and the other for the person who may have legal representation.

The Court does its best to extend every assistance it can within the bounds of propriety and fairness to unrepresented litigants and I believe we have done so in the present matter. The law however is constitutionally, and in every respect, to be interpreted the same way for all citizens whether they have the benefit of a lawyer or they do not."

Submissions

31. Although, as noted earlier, Mr Naboulsi’s written submissions asserted that he tried to tender the registration documents, Ms Asal, who appeared for him at the appeal, appeared to accept that they had never been tendered. Rather, her complaint was that the Magistrate failed to ask Mr Naboulsi what he intended to do with the documents, and in that way denied him procedural fairness.

32. By reason of the way the matter was argued before me, it is convenient to deal with the grounds compendiously. Separate submissions were not made in relation to each of the grounds of appeal. It is doubtful if any of the grounds of appeal involves a question of law only, because each ground involves a factual enquiry into what actually occurred at the hearing in relation to the documents in question and what the Magistrate did or did not do.

33. Mr Naboulsi submitted that during the course of the hearing he attempted to tender the documents, and counsel acting for Mr Khalil did not articulate a clear ground of objection to them. In those circumstances, Mr Naboulsi submitted that the documents should have been admitted into evidence because they satisfied the test of relevance. Mr Naboulsi submitted that by not admitting the documents into evidence, the Magistrate denied him procedural fairness.

34. Mr Naboulsi submitted that the Magistrate ought to have provided him with assistance about the tender of the documents in circumstances where he was under the assumption that the documents had been admitted into evidence by reason of the fact that they were on the Court file, handed down in court and given to Mr Khalil’s barrister. Mr Naboulsi submitted that the Magistrate failed to determine the objection from Mr James. He submitted that where Mr James did not articulate a clear ground of objection to the documents, they were prima facie admissible and should have been admitted into evidence.

35. Mr Naboulsi submitted that if the documents had been admitted into evidence they would have significant credibility implications for Mr Khalil who had denied that he was the registered owner of the vehicle.

36. Mr Naboulsi drew attention to r 51.53 of the Uniform Civil Procedure Rules 2005 (NSW) to submit that the Court needed to reach a positive opinion that the error relied upon caused a substantial miscarriage of justice. He submitted that a denial of procedural fairness was material in the sense of being a substantial wrong or miscarriage, relying on Nobarani v Mariconte (2018) 265 CLR 236; [208] HCA 36 at [39].

37. Mr Naboulsi submitted that the registration documents went to the very foundation of Mr Naboulsi’s defence, that the BMW was provided to Mr Khalil as security for the loan.

Consideration

38. At various times during the trial, the Magistrate explained concepts and principles to Mr Naboulsi. When Mr Khalil’s affidavits were being read his Honour explained what an objection was.

39. On the first day of the hearing just before the luncheon adjournment Mr James sought to tender a statement made by Mr Naboulsi to the police before the ADVOs were issued. Following Mr Khalil’s affidavit being admitted as exhibit 3, the exchange recorded in the transcript is this:

HIS HONOUR:   I take it that’s the case for the plaintiff?

JAMES:   There’s also a document that was produced under subpoena which is at court book 165 is the subpoena itself. The statement of witness appears at 171.

HIS HONOUR:   What we will do is, we will deal after the luncheon adjournment at ten past 2. I will adjourn until 10 past 2. Have a read of the material, speak to Mr James to see if there’s other material and then please, Mr Naboulsi, think about which documents you wish to tender in your case.

DEFENDANT:      Okay.

HIS HONOUR:   And whether or not you require any of the witnesses for cross-examination.

DEFENDANT:      Okay.

(emphasis added)

40. Following the luncheon adjournment Mr James sought to tender the statement made by Mr Naboulsi dated 8 January 2017. The transcript reads:

HIS HONOUR:   You ask that I read that and you tender that. Is that so?

JAMES:   Yes, your Honour.

HIS HONOUR:   Is there any objection to me reading your statement? It will become exhibit 4 if I admit it into evidence?

INTERPRETER:   No objection.

The statement was then marked as exhibit 4.

41. Mr Naboulsi then required Mr Khalil for cross-examination. The Magistrate said:

This is the opportunity, Mr Naboulsi, for you to ask questions to challenge what this witness has said in his affidavit material and put propositions to him consistent with your material which you have filed. You should understand that if you do not challenge his evidence then I may accept it as being unchallenged. Do you understand what I’m saying to you?

DEFENDANT:      Yes.

42. The whole of the cross-examination of Mr Khalil related to the BMW X6. The evidence was relevantly as follows:

Q. INTERPRETER: Did you come with me to Service New South Wales and register the X6 under your name?

A. No.

Q. INTERPRETER: If we go now to Service New South Wales and look at this date, would there be your name under your registration?

In this time. Yeah?

A. No.

Q. INTERPRETER: After you had an accident in the X6, did you take it to Sharma--

Repairer.

INTERPRETER: Sharma Repairer in Condell Park?

A. Yes.

Q. ...(not transcribable)...settlement...(not transcribable)...insurance to give you money to repair the X6 for 33,000 was the insurance?

INTERPRETER: And did you make - didn't you make settlement with the insurance for $32,000?

Yes?

A. No.

…

Q. INTERPRETER: Didn't you come to Jasmine Bankstown…

Punchbowl.

INTERPRETER: Sorry. Punchbowl and you told me that I got my money and the insurance - the insurance gave me the money?

A. There’s two questions in that.

JAMES: Your Honour, the witness is correct. I would just ask that they be broken up.

HIS HONOUR

Q. The first question is, did he come to Jasmine at Punchbowl?

A. Yes.

Q. The second question is, did he therein tell the defendant that he had received money in settlement of an insurance claim?

A. No.

DEFENDANT

Q. INTERPRETER: Did you send me a message saying that you did an insurance job to get your money back?

A. No.

Q. INTERPRETER; You're saying that you had an accident and you repaired it and did you return it to me or to Waleed?

A. I returned it to you.

Q. INTERPRETER: And the car wasn't registered under your name?

A. No.

Q. INTERPRETER: You're saying that this number or 0422 XXX XXX you weren't calling at or from that number? Weren't you always calling me from this number?

A. Yes. That was my active number at the time.

43. After the close of the plaintiff’s case the Magistrate said:

Mr Naboulsi, we now turn to your case. Which, if any, statements do you rely upon in relation to your case that you wish to put before me in support of your defence which you have filed?

44. Mr Naboulsi indicated that he had only one affidavit sworn 17 June 2021. Mr James identified objections to paragraphs 11-21 but said that since Mr Naboulsi was self-represented, the better way to deal with the matter might be to deal with them as matters of weight rather than admissibility. The transcript then reads:

HIS HONOUR:   Yes. I’ve seen that. 12, 14 and 15 in relation to opinion. I do take into account that this is an unrepresented defendant in civil proceedings. I can take into account, so far as the matter is concerned, that I would use my experience and give the matter such weight as they required. In the circumstance, I accept that there are also difficulties in the form in which the evidence has been expressed.

JAMES:   Yes.

HIS HONOUR:   But bearing in mind those matters I have adverted to, I propose to allow them to be read but the weight which I will give them will be subject to a consideration of all of the evidence and where they fit in, in the matrix of all the evidence in the circumstances.

JAMES:   Yes, your Honour.

…

HIS HONOUR:   I accept you have technical grounds for objection and perhaps subject to what happens in another place, I may be rebuked for it, but I propose to allow the unrepresented defendant, in the circumstances, to rely upon that material.

45. Following that ruling, an issue arose about a document that ultimately became exhibit B. It was a screen shot of an SMS about which Mr Naboulsi briefly cross-examined Mr Khalil. The transcript reads:

HIS HONOUR:    Now there was a document filed on 24 June 2022 (sic) that you advert to at CB11. What document is that?

JAMES:    The document is - perhaps I should confirm if the defendant intends to rely upon that document?

HIS HONOUR:   That's what I was going to - but I wanted to see what the document was.

JAMES:    Yes.

HIS HONOUR:    You asked precisely the same question.

JAMES:    It's included at p 184 of the Court book.

HIS HONOUR:    Thank you.

JAMES:    I don't unfortunately have a much better copy. I have a very slightly better version.

HIS HONOUR:    If it was tendered in court it should be on the Court file.

JAMES: Yes. I've had some difficulty making out all of the words in it myself.

HIS HONOUR:    And indeed it's my signature, so there should be a document here I will be able to extract and hand down to the defendant to see, indeed, he proposes to rely upon the document. Here's the document. Mr Naboulsi, a document was tendered in court before me at a mention of these proceedings.

DEFENDANT:    Yeah. I got. Yeah.

HIS HONOUR:    Is that a document that you intend to rely upon?

INTERPRETER:    Yes. In addition to my affidavit.

HIS HONOUR:    Thank you. Is there any objection to that document being relied upon in the defendant’s case?

(emphasis added)

46. Mr James objected to the document as being inconsistent with the pleadings and the evidence that had been given. The Magistrate admitted the document. The date of 24 June 2022 is incorrect both in the extract above and when the document is recorded as exhibit B. The date that was accorded the document (24 June 2021) was the date it was put on the court file at a mention of the matter prior to the hearing date.

47. The proceedings were then adjourned part heard.

48. Mr Naboulsi points to two passages in the transcript where he says that the Magistrate erred. The first is where the interpreter said to the Magistrate at the commencement of the second day’s hearing:

Your Honour, I've got a subpoena. I need the permission from the Court.

49. Mr Naboulsi submitted that at that point he was seeking permission from the Court to have the documents go into evidence.

50. The second challenge is to what the Magistrate said after the parties had had the opportunity to inspect the documents produced under the subpoena. Mr Naboulsi submitted that instead of the Magistrate saying “It depends very much on what the defendant does with the documents, if anything, doesn’t it?”, his Honour should have determined the objection that Mr James was making and, in failing to do so, there was an error of law. As noted earlier, Mr Naboulsi submitted that if the documents had gone into evidence they would have raised a significant credibility issue about Mr Khalil’s evidence, because he had denied in cross-examination that he was the registered owner of the car. The documents showed that he was the registered owner for a period of time.

51. Mr Naboulsi submitted that, rather than the Magistrate saying that it depended on what the defendant did with the documents, he ought to have addressed Mr Naboulsi himself and asked him what he intended to do with the documents.

52. There was some debate at the hearing of the appeal about what Mr Naboulsi (through the interpreter) meant when the interpreter said, “I need the permission of the Court”. Since the proceedings had been stood over part-heard, it was irregular of Mr Naboulsi, first, to have issued and served a subpoena for documents , secondly not to have given notice to the other party and, thirdly, without the leave of the Court. When everyone, including the Magistrate, appeared to be hearing about the subpoena and the subpoenaed documents for the first time, and no-one had yet had access to them, it is not reasonable to conclude that the words, “I need the permission from the Court”, meant that Mr Naboulsi was seeking to tender the registration documents. The Magistrate’s reaction suggest that he interpreted what was asked as being leave to call on the subpoena.

53. But if there was any doubt about what Mr Naboulsi was seeking, what followed make clear that he could not have been tendering anything at that point, because time was then given to Mr James to look at the subpoena and take instructions about whether he objected to it. Thereafter, the Magistrate gave access to the parties with Mr Naboulsi having first access.

54. After that had been done, Mr James raised some matters of prejudice, including an entirely appropriate reference to the principle in Browne v Dunn. His witnesses had been cross-examined, these documents had not been put to them, and Mr Khalil had closed his case. The Magistrate then interrupted Mr James to say that what might happen depended on what Mr Naboulsi did with the documents. Mr James agreed, saying twice that it depended on what the defendant did with the documents. It was only immediately before this part of the transcript that Mr Naboulsi had actually seen the documents.

55. By this stage of the trial, Mr Naboulsi had been given explanations about procedure including in relation to tendering documents. He had tendered a document obtained from the court file (see at [45] above). Moreover, Mr James had tendered a document which had been produced on subpoena (see at [39]-[40] above). The concept of tendering documents could not, by this stage, be something that was considered foreign to Mr Naboulsi. He had been asked what material he wanted to tender. At the end of his cross-examination, he was asked if that was the close of his case.

56. Despite all of this, Mr Naboulsi did not tender the registration documents. There was no failure on the Magistrate’s part to admit them because they were never tendered.

57. In those circumstances, I do not consider that the Magistrate was obliged to say anything further to him about them, or to ask Mr Naboulsi specifically, as has been submitted, what he intended to do with the documents. In my opinion, that would have been overstepping the line between neutrality and assistance to one side. In Norbarani, the High Court approved at [47] what Samuels JA said in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, 16 June 1986) at 27:

[T]he absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

58. There was no denial of procedural fairness in the way the Magistrate conducted the hearing, including in relation to the registration documents. The Magistrate had appropriately provided all of the assistance necessary to assist Mr Naboulsi as an unrepresented litigant.

59. If I am wrong in concluding there was no denial of procedural fairness, there was no substantial miscarriage or wrong: Balenzuela v De Gail (1959) 101 CLR 226 at 235; [1959] HCA 1. What must be shown is that the person was deprived of the possibility of a successful outcome. To negate that outcome, the Court would need to find that a properly conducted trial could not possibly have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Nobarani at [38].

60. The only matter which the registration documents went to was whether Mr Khalil had ever been registered as the owner of the BMW. He said that he had not. The documents showed that he had been. That arguably affected his credit. There was no issue that he had the use of the vehicle, but he denied it was for any form of security.

61. The documents tended to show that the car was transferred to him in June 2016, long before the loan to Mr Naboulsi. They also show that Mr Khalil transferred the vehicle to Patricia Butler before the loan was repaid. That was inconsistent with the BMW being provided to him as security. The documents also show that the prior owner was not Mr Omar as Mr Naboulsi alleged.

62. Further, the Magistrate found that Mr Naboulsi’s account of the loan was inconsistent with what he told the police in his statement to obtain the ADVOs in a number of respects. The account in the police statement accorded with Mr Khalil’s evidence. The Magistrate found that the revs.com.au document did not support Mr Nabousli’s case that Mr Khalil had written the BMW off and obtained the insurance money. The Magistrate noted that the defendant did not call Mr Omar to corroborate Mr Naboulsi’s case that it was Mr Omar who borrowed the money and provided the BMW as security.

63. The evidence in the case overwhelmingly supported Mr Khalil’s case. The registration documents proved only that Mr Khalil was wrong that he never became the registered owner of the BMW. However, by virtue of the date he became the registered owner, his ownership had no connection with security for the loan, which had not then been made, and his ownership ceased prior even to his first demanding repayment of the loan.

64. In my opinion, Mr Naboulsi was not deprived of the possibility of a successful outcome by the absence of the registration documents in the proceedings as a result of any denial of procedural fairness.

65. Although grounds of appeal involving questions of mixed fact and law ordinarily require more than error to be demonstrated (Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37]; John Maiolo t/as M & N Peninsular Kitchens & Joinery v Chiarelli [2017] NSWSC 982 at [29]-[31]), this matter does not arise in circumstances where the grounds fail, in any event.

58. I would reject all of the grounds of appeal.

Conclusion

67. I make the following orders:

1. Dismiss the Second Further Amended Summons.

2. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 21 March 2024