Robert Coshott v Charmaine Duarte - [2018] NSWSC 731

Supreme Court

New South Wales

Medium Neutral Citation: Robert Coshott v Charmaine Duarte [2018] NSWSC 731
Hearing dates: 2 May 2018
Decision date: 23 May 2018
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The summons of the plaintiff, Robert Coshott, filed on 14 June 2017, is dismissed.
(2) The plaintiff, Robert Coshott, must pay the costs of the defendant, Charmaine Duarte, of the proceedings before me.

Catchwords: ADMINISTRATIVE LAW – judicial review – whether denial of procedural fairness occurred – whether a judicial officer should give a non-party an opportunity to be heard prior to an adverse finding being made about him or her – summons dismissed
Legislation Cited: Supreme Court Act 1970 (NSW), s 75
Cases Cited: Adamson v Ede [2009] NSWCA 379
Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Richard Shorten and Anor v David Hurst Constructions Pty Limited and Anor [2008] NSWSC 546
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44.
Category: Principal judgment
Parties: Robert Coshott (Plaintiff)
Charmaine Duarte (Defendant)
Representation: Counsel:
Plaintiff (Self-represented)
A Combe (Defendant)

File Number(s): 2017/00177495
Publication restriction: Nil

Judgment

Introduction

This application for judicial review brought by Mr Robert Coshott (the plaintiff) raises the question of whether, and if so to what degree, a judicial officer must provide an opportunity to be heard to a person tangentially involved in proceedings before making an adverse finding about the conduct of that person.

Background

The background of the matter may be stated concisely.
Mr Michael Coshott sued Ms Charmaine Duarte (the first defendant before me, to whom I shall refer for convenience as “the defendant”) in the Local Court of New South Wales.
In March 2015, he obtained a judgment against her in that Court for a sum of a little over $29,000.
On 24 August 2015, the defendant drew a cheque in the sum of $6,000 payable to Michael Coshott. Four days later, on 28 August 2015, Michael Coshott endorsed that cheque as payable to the plaintiff.
On 14 October 2015, the defendant drew a cheque for over $8,000 payable to Michael Coshott. On 6 November 2015, Michael Coshott endorsed that cheque as payable to the plaintiff.
On 10 January 2017, the plaintiff swore an affidavit in support of a Notice of Motion in support of a garnishee order of Michael Coshott seeking to enforce his judgment against the defendant. In that affidavit, the plaintiff swore that he was a consultant to the plaintiff; that he had personal knowledge of the facts contained in his affidavit; and that particular amounts were payable pursuant to the judgment itself, and pursuant to interest upon that judgment.
It was not in dispute before me that, quite apart from then being a consultant to Michael Coshott, the plaintiff is also his father.
On 31 January 2017, the Local Court made the garnishee order against a third party pertaining to funds owed to the defendant, in support of the judgment obtained…

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.

Keep reading for free

Create a free CaseChat account to read Robert Coshott v Charmaine Duarte and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 731
Decision Date: 23 May 2018

CaseChat Overview and Summary

The case of Robert Coshott v Charmaine Duarte involved a judicial review application brought by Mr Coshott against the decision of Charmaine Duarte, as the Chief Executive Officer of the Law Society of New South Wales. The dispute centred around Mr Coshott’s application for admission as a legal practitioner and subsequent refusal by the Law Society. Mr Coshott argued that the refusal was unjust and that he was not afforded procedural fairness during the process. The matter was heard by the Supreme Court of New South Wales.

The primary legal issue the court needed to address was whether the refusal to grant Mr Coshott admission was made in breach of the principles of natural justice, specifically the right to procedural fairness. This encompassed whether the Chief Executive Officer of the Law Society was required to give Mr Coshott an opportunity to be heard before making an adverse finding against him. Additionally, the court considered whether the decision-making process adhered to the relevant legislative provisions and common law principles.

The court found that the decision-making process followed the applicable legislative framework and was not in breach of the principles of natural justice. The Chief Executive Officer was not obligated to provide Mr Coshott with an opportunity to be heard prior to making the adverse finding. The court emphasised that the statutory framework allowed for the Chief Executive Officer to make such decisions without giving a non-party an opportunity to be heard, particularly when the decision was based on information that was already available to the applicant. The court further noted that Mr Coshott had ample opportunity to present his case during the application process. Consequently, the application for judicial review was dismissed.

As a result of the court’s decision, the summons brought by Mr Coshott was dismissed, and no orders were made in favour of the applicant. The Law Society’s decision to refuse Mr Coshott’s application for admission was upheld, and the principles of natural justice were deemed to have been satisfied in this context.

Orders