LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): 10130/02
LOWER COURT JUDICIAL OFFICER: Dunford J
COUNSEL: Not applicable
SOLICITORS: The claimant is unrepresented Gunn Hamilton & Blay for 2nd opponent
CATCHWORDS: PRACTICE - Unrepresented litigant - Assistance by Court - Extent to which such assistance appropriate - Relevance of burdens of costs and time on other party - Case listed for hearing at time when unrepresented litigant said she was unavailable - Case heard in her absence and decided against her - Whether denial of natural justice or appealable error.
DECISION: Application for leave to appeal from decisionof Dunford J dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES COURT OF APPEAL
CA 40405/03 CLD 10130/02
HODGSON JA IPP JA
Wednesday 10 March 2004
REISNER V. BRATT & ANOR.
Judgment
HODGSON JA: On 17 April 2003, Dunford J dismissed a Notice of Motion brought by the claimant Koidu Reisner seeking an extension of time for the filing of a summons claiming orders which would have had the effect of setting aside orders made by the Local Court at Waverley in proceedings between the claimant and Rapid Facilities Management Pty. Limited, the second opponent (which I will refer to as “the opponent”, as the first opponent, the Local Court magistrate, is not actively involved in the proceedings); and Dunford J then dismissed the summons itself. He ordered the claimant to pay the opponent’s costs of the Notice of Motion and the summons.
The claimant seeks leave to appeal against these orders. The parties have agreed that this application be dealt with on the papers, without an appearance in Court, pursuant to Pt.51 r.4D of the Supreme Court rules.
The claimant is unrepresented, and was unrepresented before the primary judge. Before considering the grounds on which the claimant seeks to rely, it is necessary to say something about the role of the Court in cases where a party is unrepresented and for that reason a case is not adequately presented to the Court.
Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.
In deciding what to do when…
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 Reisner v Bratt
Sign in free to access the full text
Details
AGLC
Reisner v Bratt [2004] NSWCA 22
Case
[2004] NSWCA 22
Decision Date
CaseChat Overview and Summary
This matter concerned an application for leave to appeal to the Court of Appeal of New South Wales from a decision of Dunford J. The dispute involved a claimant, who was an unrepresented litigant, and an opponent. The claimant alleged that the primary judge had erred in dismissing her case, which had been heard in her absence after she claimed to be unavailable at the scheduled hearing time.
The central legal issues before the Court of Appeal were whether the primary judge's decision to proceed with the hearing in the claimant's absence constituted a denial of natural justice or an appealable error, and the extent to which a court should provide assistance to an unrepresented litigant, particularly when considering the costs and time burdens on the opposing party. The claimant also contended that the magistrate had failed to consider her claim and had introduced irrelevant considerations.
The Court of Appeal found no substance in the attack on the primary judge's decision. It reasoned that the claimant had received a fair hearing and that a fair conclusion had been reached. The court considered it incorrect to suggest that the magistrate should have disregarded the circumstances surrounding the delivery of materials by the claimant to the opponent and the connection to a contract for a kitchen renovation. Furthermore, the court noted that the claimant did not have a general right to appeal on questions of fact and law. Consequently, the application for leave to appeal was dismissed with costs.
Orders
Orders of the court
Application for leave to appeal from decisionof Dunford J dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Accordingly, there is no substance in this attack on the primary judge’s decision.CONCLUSION Although the claimant has made many complaints about the magistrate’s decision, including the complaint that he did not consider the claimant’s claim and introduced irrelevant considerations into it, it seems to me, on the material available to me, that the claimant had a fair hearing and that a fair conclusion was reached. It seems to me wrong to suggest, as the claimant does, that the magistrate should have disregarded the circumstances under which the materials were delivered by the claimant to the opponent, and the connection between that delivery and the performance of a contract made by the opponent with the Department of Housing to provide a kitchen for the claimant. In any event, as I have said, the claimant does not have an appeal from the magistrate on questions of fact and law generally. For the reasons I have given, in my opinion the application for leave to appeal from the decision of Dunford J should be dismissed with costs. IPP JA: I agree with Hodgson JA.