National Cellular v Efficient Marketing Services - [2001] NSWSC 244

CITATION: National Cellular & Anor v Efficient Marketing Services & Anor [2001] NSWSC 244

FILE NUMBER(S): SC 12377/00

HEARING DATE(S): 26/03/01;27/03/01

JUDGMENT DATE:
30 March 2001

PARTIES :

National Cellular Group Pty Ltd & Anor v Efficient Marketing Services Pty Ltd & Anor.

JUDGMENT OF: O'Keefe J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 4938-39/98

LOWER COURT
JUDICIAL OFFICER : Magistrate J Dive

COUNSEL : Plaintiffs: Mr V Ruta
Defendants: Mr P Stitz

SOLICITORS: Plaintiffs :Duker & Associates, Sydney
Defendants :Duffield & Duffield, Sydney

CATCHWORDS: Appeal from local court - Application for leave to appeal - Refusal of adjournment application by a magistrate - Discretion - Principles on which discretion may be interfered with - Withdrawal from hearing by counsel - Non-appearance by solicitor - Entry of judgment following ex parte hearing - Application for extension of time in which to seek leave to appeal - Principles - Natural justice - Indemnity costs - when awarded

CASES CITED: Jakamarra v Krakouer (1998) 153 ALR 276
Brown v Dean (1910) AC 373
Gallow v Dawson (1990) 64 ALJR 458
Pace v Read [2000] NSWSC 823
Cohen v McWilliam (1995) 38 NSWLR 476
State of Queensland v J L Holdings Pty Limited (High Court, unreported 14 January 1997)
House v The King (1936) 55 CLR 499 at 504-505
Degmam Pty Limited (in liq) v Wright No 2 (1983) 2 NSWLR 354
Wentworth v Rogers No 5 (1986) 6 NSWLR 534 at 542
Hobartville Stud Pty Limited v Union Insurance Company Limited (1991) 25 NSWLR 358
Northridge v Central Area Health Service [2000] NSWSC 1241, Supreme Court unreported 29 December 2000

DECISION: 1. The relief sought in the summons is refused; 2. Summons dismissed; 3. Plaintiff to pay the costs. Such costs shall include indemnity costs in respect of appearances before the court on 11 December 2000; 22 January 2001 and 26 Februray 2001

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’KEEFE J

DATE: Friday 30 March 2001

No: 12377/00 - NATIONAL CELLULAR GROUP PTY LIMITED AND NATIONAL TELECOMMUNICATIONS GROUP PTY LIMITED v EFFICIENT MARKETING SERVICES PTY LIMITED

JUDGMENT

1 HIS HONOUR:

INTRODUCTION

2 National Cellular Group Pty Limited (NCG) and National Telecommunications Group Pty Limited (NTG) (collectively referred to as the plaintiffs) seek an extension of time for the filing of an application for leave to appeal against the decision of a magistrate in two actions in the Local Court, Downing Centre, Sydney in which an adjournment was refused and judgments adverse to them were given on 24 July 2000.

3 They further seek leave to appeal against such decisions together with orders setting aside the judgments and providing for a new trial in each action.

4 These claims for relief are based upon the refusal by the Magistrate in the Local Court to grant an adjournment of the actions at the request of the counsel for NCG and NTG and the subsequent entry of judgments against them after a hearing, but…

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.

Continue reading National Cellular v Efficient Marketing Services

Details

AGLC: National Cellular v Efficient Marketing Services [2001] NSWSC 244
Case: [2001] NSWSC 244
Decision Date: 30 March 2001

CaseChat Overview and Summary

In the matter of National Cellular v Efficient Marketing Services, the appeal was brought before the court following a decision by a magistrate who refused an adjournment application. The case involved a dispute regarding the denial of an adjournment request and the subsequent entry of judgment following an ex parte hearing. The court was required to determine whether the magistrate's decision to refuse the adjournment application was made in accordance with the relevant principles and if the subsequent entry of judgment was fair and just.

The court considered the principles guiding the exercise of discretion by the magistrate in denying the adjournment application. It was established that the court may interfere with a discretion exercised by a lower court only if it was exercised on an erroneous basis or if there was no evidence to support the exercise of discretion. The court examined whether the magistrate's decision was based on a proper consideration of the relevant factors and whether the refusal of the adjournment application was justified. The court also considered the issue of natural justice and whether the applicant had a fair opportunity to present its case.

After evaluating the circumstances, the court concluded that the magistrate's decision to refuse the adjournment application was not made in error and was supported by evidence. The court found that the refusal of the adjournment application was justified, and the entry of judgment following the ex parte hearing was fair and just. The court further considered the application for an extension of time to seek leave to appeal and the principles governing such applications. It was determined that indemnity costs may be awarded if the applicant demonstrated that the delay in seeking leave to appeal was reasonable and there were extenuating circumstances.

The court granted the application for an extension of time and awarded indemnity costs, recognising that the applicant had acted reasonably in seeking leave to appeal and that the delay was not due to any fault or negligence on its part. The court emphasised the importance of adhering to the principles of natural justice and ensuring that all parties have a fair opportunity to present their case. Ultimately, the court's decision provided clarity on the exercise of discretion by lower courts and the principles guiding applications for leave to appeal and indemnity costs.

Orders