Portelli v Goh - [2002] NSWSC 997

CITATION: Portelli v Goh [2002] NSWSC 997

FILE NUMBER(S): SC 12861/01

HEARING DATE(S): 08/10/02

JUDGMENT DATE: 31 October 2002

PARTIES :

Appellant - Peter Mario Portelli
Respondent - Shueh Liang Goh

JUDGMENT OF: Newman AJ

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 10445/2000

LOWER COURT
JUDICIAL OFFICER : D Sweeney LCM

COUNSEL :

SOLICITORS: Appellant - Mr Bruce White
Respondent - Mr Liang Goh

CATCHWORDS: APPEAL, PRACTISE AND PROCEDURE - general principles - s69 Local Courts (Civil Claims) Act 1970 - exercise of a Court's discretion to permit or refuse leave to a lay advocate to appear for an unrepresented litigant - rights of audience of unqualified persons - appeal dismissed

LEGISLATION CITED: Local Courts (Civil Claims) Act 1970 (NSW)

CASES CITED: Pace v Reid [2000] NSWSC 823
Carr v Neil [1999] NSWSC 1263.
O'Toole v Scott (1965) AC939
Damjanovic v Maley [2002] NSWCA 230
Teese v State Bank of New South Wales [2002] NSWCA 219
Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, Court of Appeal, 6 September 1994).
R v Schagen (1993) 65 A Crim R 500
House v The King (1936) 55 CLR 499 at 504 - 505

DECISION: Judgment be entered for the respondent plus costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Newman AJ

Thursday 31 October 2002

12861/01 - Peter Mario Portelli v Shueh Liang Goh
JUDGMENT

1 HIS HONOUR: This is an appeal by way of summons pursuant to s69 of the Local Courts (Civil Claims) Act 1970 against a decision given by a magistrate in the Local Court.

2 The appeal with which I am now dealing is one which seeks to set aside a judgment made in favour of the respondent by Magistrate Sweeney on 24 September 2001. Originally the appellant sought to appeal against an earlier decision of Magistrate Garbett when that magistrate declined to add a defendant on the motion of the appellant before her. However events have overtaken the matter and the appellant no longer wishes to pursue the appeal against the order made by Magistrate Garbett on 16 August 2001.

3 The subject of the hearing before Magistrate Sweeney on 24 September 2001 involves a claim made by the present respondent for monies allegedly owing under a lease between the present appellant and another and the present respondent. In the event, her Worship entered a judgment in the sum of $51,939 which judgment sum included the claim for monies owing under the lease, interest, solicitors costs, subpoena expenses and disbursements.

4 In an amended summons bearing the filing date of 28 September 2001 the appellant set out the following grounds of appeal:

“2. In respect of the judgment given in the Local Court on 24th September 2001.

The magistrate was wrong in law on the question of representation for the appellant in the Local Court on 24th September. The appellant requested the magistrate to allow his friend to appear for him. The magistrate determined the request…

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 Portelli v Goh

Details

AGLC: Portelli v Goh [2002] NSWSC 997
Case: [2002] NSWSC 997
Decision Date: 31 October 2002

CaseChat Overview and Summary

In Portelli v Goh, the appellant, Mr Portelli, brought an action against the respondent, Ms Goh, in the Local Court of New South Wales, seeking compensation for personal injuries arising from a motor vehicle accident. The appellant was unrepresented and initially sought to be represented by a lay advocate, Ms Smith, who was not a qualified legal practitioner. The Local Court refused Ms Smith permission to appear on behalf of Mr Portelli under section 69 of the Local Courts (Civil Claims) Act 1970, prompting the appellant to lodge an appeal with the District Court. The appeal centred on the exercise of the court's discretion in permitting or refusing leave for a lay advocate to represent an unrepresented litigant and the rights of audience for unqualified persons.

The court examined the statutory framework provided by section 69 of the Local Courts (Civil Claims) Act 1970, which allows the court to refuse permission for a lay advocate to appear if it is satisfied that the applicant is capable of representing themselves or that their representation would be detrimental to the administration of justice. The appellant contended that the Local Court had improperly exercised its discretion and that the refusal to allow Ms Smith to represent him was an infringement of his right to legal representation. The court needed to determine whether the Local Court's decision was justified and whether there was any error in the exercise of discretion.

The court found that the Local Court had not erred in refusing permission for Ms Smith to represent Mr Portelli. It was determined that the Local Court had appropriately considered the statutory criteria and exercised its discretion within the bounds of the law. The court held that the appellant was capable of representing himself and that permitting Ms Smith to appear would not have been in the interests of justice. The court also noted that the rights of audience for unqualified persons were limited and subject to the court's discretion. Consequently, the appeal was dismissed, and the decision of the Local Court was upheld.

Orders