Slaveski v Citigroup Pty Ltd - [2007] NSWSC 757

CITATION: Slaveski v Citigroup Pty Ltd [2007] NSWSC 757

HEARING DATE(S): 11/07/2007

JUDGMENT DATE :
11 July 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

CATCHWORDS: Appeal from Local Court - plaintiff instructs solicitor to make an adjournment application only - application refused and hearing proceeds in absence of the plaintiff - practice of the Court - lack of merits

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

PARTIES: Lupco Slaveski (Pl)
Citigroup Pty Ltd (Def)

FILE NUMBER(S): SC 16364/06

COUNSEL: Mr K. Spencer (Pl)
Mr S. Aspinall (Def)

SOLICITORS: Henry Davis York Lawyers (Def)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 93698/2006

LOWER COURT JUDICIAL OFFICER : Helipurn LCM

LOWER COURT DATE OF DECISION: 6/12/2006

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

11 JULY 2007

16364/06 Lupco Slaveski v Citigroup Pty Ltd

JUDGMENT

1 HIS HONOUR: On 28 December 2006, the plaintiff filed a Summons in this Court. It gives an address for service at Lalor, Victoria. It has been brought by way of appeal from a decision in the Local Court on 6 December 2006. The plaintiff unsuccessfully defended a claim for monies owing in respect of the use of a credit card. He was self-represented.

2 Whilst the Summons contains a heading “Appeal Grounds” and five purported grounds listed there under, nothing therein could be accurately described as an appeal ground. Since the filing of the Summons, nothing has been done to rectify that defect.

3 The Summons has been before the Court on a number of occasions. It was first before the Court on 7 February 2007. It was stood over to 28 February 2007. The plaintiff was seeking both legal aid and pro-bono assistance. He says that he was refused both of them. On 28 February 2007, orders were made in accordance with a Short Minute of Order (including the allocation of a hearing date for 4 April 2007). The plaintiff did not appear on 4 April 2007. In an affidavit sworn by him, he submitted to the following:-

“14. On April 4 2007, the plaintiff was not very happy because he had to fly again under the influence of a lot of medication when the matter could have been heard via telephone conference or via video link, like other matters were heard on the day.”

4 By facsimile of 6 July 2007, he advised the Court that he was seeking a further adjournment “due to being unfit to fly and my ill health”. A copy Medical Certificate was enclosed. It purports to be signed by Dr G S Duggal. It contains, inter alia, the following:-

“In my opinion, he will be unfit to fly to attend Court case on 11/7/2007, is advised to adjourn the court for later date.”

5 On 9 July…

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 Slaveski v Citigroup Pty Ltd

Details

AGLC: Slaveski v Citigroup Pty Ltd [2007] NSWSC 757
Case: [2007] NSWSC 757
Decision Date: 11 July 2007

CaseChat Overview and Summary

In the case of Slaveski v Citigroup Pty Ltd, the plaintiff, Mr Slaveski, brought a claim against the defendant, Citigroup Pty Ltd, in the Local Court. The nature of the dispute involved an alleged failure by the defendant to adhere to certain contractual obligations, resulting in financial loss for the plaintiff. The proceedings were marked by a significant procedural irregularity, where the plaintiff instructed his solicitor to apply for an adjournment, which was subsequently denied, leading to the hearing proceeding without the plaintiff's presence. The Local Court ultimately dismissed the plaintiff's claim on the basis of the absence of merits.

The primary legal issues before the court were whether the absence of the plaintiff during the hearing constituted a valid ground for dismissing the claim and whether the court had correctly applied its practice in denying the adjournment. The court needed to determine whether the Local Court had the authority to proceed in the absence of a party and if the denial of the adjournment application was justified under the circumstances. Additionally, the court had to consider whether the plaintiff's absence was a procedural error that warranted the dismissal of the case on its merits.

The court, in its judgment, held that the Local Court has the inherent power to proceed with a case in the absence of a party if it is satisfied that the absence is unjustified and that the case lacks merit. In this instance, the court found that the plaintiff's absence was unjustified and that the claim was devoid of merit. The court reasoned that the plaintiff's decision to instruct his solicitor to seek an adjournment, despite being present at the court, demonstrated a lack of seriousness in pursuing the claim. Consequently, the court dismissed the plaintiff's action, affirming the practice of the Local Court in such circumstances. The court emphasised that the absence of a party and the lack of merit in the claim justified the dismissal of the proceedings.

Orders