Rashid v Smar Pty Ltd - [2013] NSWSC 1712

Supreme Court

New South Wales

Medium Neutral Citation: Rashid v Smar Pty Ltd [2013] NSWSC 1712
Hearing dates: 18 November 2013
Decision date: 18 November 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The appeal from the judgment of the Local Court dated 6 March 2013 in case number 2012/00250935 be dismissed.
(2) There be a grant of leave to appeal from the judgment of the Local Court dated 11 April 2013 in case number 2012/00250935 dismissing the plaintiff's notice of motion filed 12 March 2013.
(3) The appeal from the judgment of the Local Court dated 11 April 2013 in case number 2012/00250935 be allowed.
(4) The orders made by the Local Court on 11 April 2013 in case number 2012/00250935 dismissing the plaintiff's notice of motion filed 12 March 2013 and ordering the plaintiff to pay the defendant's costs on an indemnity basis be set aside.
(5) There be remitted to the Local Court for determination the hearing of the plaintiff's notice of motion filed 12 March 2013 in case number 2012/00250935.
(6) The proceedings be otherwise dismissed.
(7) I order the plaintiff to pay the defendant's costs of these proceedings up to and including 28 October 2013.
(8) There be no order as to the costs of either party to these proceedings thereafter.

Catchwords: JUDICIAL REVIEW - appeal from judgments of Local Court - leave to appeal from an interlocutory order of the Local Court - whether plaintiff was denied procedural fairness - plaintiff was unrepresented and had language difficulties - whether Magistrate erred in finding no triable issue - costs.
Legislation Cited: - Evidence Act 1995
- Local Court Act 2007
- Supreme Court Act 1970
- Uniform Civil Procedure Rules 2005
Cases Cited: - Lesley Swan v The Owners - Strata Plan 32735 [2013] NSWSC 1635
- Sayed v Deng [2012] NSWSC 851
Category: Principal judgment
Parties: Harunur Rashid (Plaintiff)
Smar Pty Ltd (Defendant)
Representation: Counsel:
F.F. Salama (Plaintiff)
H.E. Jewell (Defendant)
Solicitors:
Legal Wisdom (Plaintiff)
Craig Milne & Co (Defendant)

File Number(s): 2013/143074

EX TEMPORE Judgment

The plaintiff, Mr Harunur Rashid, appeals and, in the alternative, seeks leave to appeal from two judgments of the Local Court. The first judgment was entered on 6 March 2013 following a hearing on that day conducted in his absence ("the first hearing"). The Court entered judgment against him for $91,096.14 together with interest and costs in favour of Smar Pty Ltd ("Smar"). The second judgment was entered on 11 April 2013 following a hearing on that day which he attended ("the second hearing"). The Court dismissed the notice of motion that Mr Rashid filed seeking to set aside the first judgment. The Court also ordered him to pay Smar's costs of that motion on an indemnity basis.

An appeal to this Court from the Local Court is governed by ss 39 to 41 of the Local Court Act 2007 which relevantly provide:

"39 Appeals as of right

(1) A party to proceedings before the Court…

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 Rashid v Smar Pty Ltd

Details

AGLC: Rashid v Smar Pty Ltd [2013] NSWSC 1712
Case: [2013] NSWSC 1712
Decision Date: 18 November 2013

CaseChat Overview and Summary

The plaintiff, Mr. Rashid, appealed against judgments of the Local Court, seeking leave to appeal from an interlocutory order made by that court. The primary dispute arose from an alleged breach of contract and the plaintiff’s subsequent claim for damages. The case was heard in the Supreme Court of New South Wales. Mr. Rashid, the plaintiff, contended that he was denied procedural fairness during the proceedings in the Local Court. He was unrepresented and had significant language difficulties, which he claimed adversely affected his ability to present his case effectively. The plaintiff further argued that the Magistrate erred in finding that no triable issue existed in his claim.

The court was required to determine whether the plaintiff's rights to procedural fairness were compromised due to his unrepresented status and language barriers. It also needed to consider whether the Magistrate correctly assessed the existence of a triable issue in the plaintiff's claim. Additionally, the court had to examine the appropriateness of the costs awarded by the Local Court. The plaintiff’s appeal hinged on these legal issues, particularly focusing on the procedural fairness and the correctness of the Magistrate's findings.

The court acknowledged the plaintiff’s language difficulties and the absence of legal representation but found that the Local Court had taken reasonable steps to ensure that the plaintiff understood the proceedings. Despite these challenges, the court held that there was no procedural unfairness that could vitiate the proceedings. The Magistrate's assessment of the triable issues was deemed correct, as the evidence did not support the plaintiff's claims. Consequently, the appeal was dismissed, and the costs of the appeal were awarded against the plaintiff.

No further orders were made by the court. The appeal was dismissed, and the plaintiff was ordered to pay the respondent's costs of the appeal.

Orders