Tyne v Lease Plan Australia

[2006] NSWSC 225

CITATION:	Tyne v Lease Plan Australia & Anor [2006] NSWSC 225
HEARING DATE(S):	3 April 2006
JUDGMENT DATE :	7 April 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons; the stay of proceedings is discharged.
CATCHWORDS:	Unrepresented litigant - assessor receives statements served out of time and allows amendment of process - role of the court where a party is unrepresented - challenges to exercises of discretion - no denial of natural justice.
LEGISLATION CITED:	Local Courts (Civil Claims) Rules 1988
PARTIES:	Linda Kaye Tyne (Plaintiff) Lease Plan Australia Pty Limited (First Defendant) Richard Schilling (Second Defendant)
FILE NUMBER(S):	SC 13618/05
COUNSEL:	Mr A Restuccia (Solicitor) (Plaintiff) Mr A Maroya (Defendants)
SOLICITORS:	Anthony J Restuccia (Plaintiff)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	1148/04
LOWER COURT JUDICIAL OFFICER :	Assessor Connelly

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

7 April 2006

13618 of 2005 Tyne v Leaseplan Australia Pty Limited & Anor

JUDGMENT

1 His Honour: The plaintiff and the second defendant were driving motor vehicles along William Street in Sydney on 12 March 2003. The plaintiff made a lane change and stopped suddenly in front of the second defendant. A collision took place between the two vehicles. Both vehicles were damaged.

2 On 27 August 2004, the defendants brought proceedings in the Small Claims Division of the Local Court to recover a sum in the order of $2,500. The plaintiff filed a defence and a cross-claim. The defendants filed a defence to the cross-claim.

3 On 7 December 2004, the Court sent a notice of listing for pre-trial review to the parties. The notice attached a copy of Local Court Practice Note No 3/2001. The parties were also given certain information concerning pre-trial review and informal hearings.

4 The pre-trial hearing took place on 4 February 2005 before a Registrar. A direction was made for the exchange of copies of written statements (this was to be done no later than 4 April 2005). A hearing date was fixed for 18 April 2005. The parties received a civil claims case management order (the order), which confirmed these matters and gave other information.

5 The order contained, inter alia, the following:-

If you or your opponent do not file and exchange the statements of relevant witnesses, this may result in the action, defence or third party notice being dismissed or struck out, and/or an order for costs may be made against the non-complying party.
If you are uncertain about any aspect of this Notice or the procedures to be followed in preparing your case or at the hearing, you should seek advice prior to the hearing date from the Registrar/Chamber Magistrate or a legal practitioner.

6 The plaintiff complied with the direction to exchange written statements. The defendants did not. Three written statements were sent by the defendants to the plaintiff (a few days out of time). Prior to the hearing date, the defendants also served a proposed amended ordinary statement of claim on the plaintiff.

7 On 18 April 2005, the hearing took place before an Assessor (Assessor Connolly). The plaintiff conducted the proceedings as an unrepresented litigant. She appeared at the hearing personally. The defendants were represented by solicitors and Ms Hill appeared for them at the hearing.

8 The defendants were successful in their claim and the cross-claim resulted unfavourably for the plaintiff. In substance, it appears that the Assessor found that the plaintiff failed to change lanes with safety. The court has been informed that a stay of proceedings was granted and presently remains on foot.

9 On 12 August 2005, the plaintiff filed a summons in this court. She was then still acting in person. It purported to bring an appeal against the Local Court decisions. She obtained legal representation and on 14 October 2005, an amended summons was filed. It contains the following grounds of appeal:-

1. The assessor denied the plaintiff natural justice in the Local Court proceedings by permitting the defendant to adduce further evidence after the date for filing and exchange of Witness Statements, and contrary to a direction had been given by the deputy registrar for the filing of documents and statements.
2. The assessor denied the plaintiff natural justice in the Local Court proceedings by permitting the defendant to amend its Statement of Claim on the date of the assessment hearing, without advising the plaintiff to first obtain legal advice.
3. The assessor made a determination of fact in the absence of any evidence supporting the assessor’s interpretation of the same.
4. The assessor made a determination of fact contrary to the evidence filed in the proceedings.

10 The hearing of the appeal took place on 3 April 2006. Mr Restuccia (Solicitor) appeared for the plaintiff. Mr Maroya of counsel appeared for the defendants.

11 The appeal is brought on the grounds of denial of natural justice. The arguments on the appeal were restricted to grounds 1 and 2. Grounds 3 and 4 were abandoned. No appeal is available from the Small Claims Division by reason of error (even by reason of error in point of law).

12 The onus rests on the plaintiff. She must demonstrate that there has been a denial of natural justice which justifies a disturbing of the decisions made by the Local Court.

13 Before proceeding further, I should digress to deal with one matter which was seen by the plaintiff as a matter of importance. It concerned Part 9 Rule 9 of the Local Courts (Civil Claims) Rules 1988. The Rule confers powers in relation to case management. Sub-rule 3 thereof is in the following terms:-

An order made under this rule has effect despite anything to the contrary in any other provision of these rules.

14 I am unable to see how the Rule assists the plaintiff in this appeal. I have already referred to the one direction made by the Registrar. The conduct of the hearing was in the hands of the Assessor. The order conveyed this information to the parties. The Assessor had the usual discretionary powers to deal with questions of admissibility of evidence and amendment of process.

15 Strictly speaking, it is unnecessary to address questions of the merits of the appeal. The appeal is presently incompetent. It has been brought well out of time and no application for extension of time has been made. Apparently, this stance is maintained on the basis of a misconception that an extension of time was unnecessary because of the stay of proceedings.

16 There is a discretion to grant an extension of time. An extension of time is not usually granted unless the plaintiff, inter alia, satisfactorily explains the delay and deals with any question of prejudice.

17 In this case, nothing is put before the court to explain the delay. In considering an extension of time, the court will usually also look at the merits of the proposed appeal.

18 In deference to the arguments that have been put on behalf of the parties, I will briefly deal with the matter of the merits of the appeal. Each ground is in reality a challenge to an exercise of discretion. In my view, it would be an exercise in futility to grant an extension of time.

19 Ground 2 can be quickly disposed of. Initially, there had been some confusion as to who was the driver of the plaintiff’s motor vehicle. Her defence admitted that she was the driver. The purpose of the amendment was to simply rectify that matter.

20 The plaintiff had notice of the proposed amendment prior to the hearing. If she had wanted to do so, she could have sought legal advice prior to the hearing. The amendment was not a matter that caused her any concern and she consented to it at the hearing. These matters are recorded in the transcript of the Local Court proceedings.

21 The transcript also records that the Assessor allowed the defendants to rely on the three statements that had been served out of time. This was done without objection from the plaintiff (even though she had been provided with the information contained in the Order).

22 The transcript records that the Assessor carefully identified the documentation relied on by the respective parties and gave each of them an opportunity to present their case.

23 The Assessor had a discretion to admit the three statements relied on by the defendants and it was open to her to exercise that discretion in favour of the defendants, even though the statements had not been exchanged in compliance with the earlier direction.

24 The court has been referred to a number of cases concerning what should be done where a party is an unrepresented litigant. It needs to be appreciated that the courts now have to adapt to changing times and that what has been said in older cases may no longer be apposite. An unrepresented litigant is no longer a rarity. They now appear in great numbers in this court and many do so as a matter of choice (in a multiplicity of proceedings). Indeed, there are some that adopt an attitude of superiority of knowledge in relation to matters of law and procedure. Attempts at assistance may be treated with suspicion.

25 It is paramount that the court presents itself as an impartial adjudicator. It must be careful not to give assistance to the unrepresented litigant which brings about conflict with that role.

26 On behalf of the plaintiff, it has been claimed that the Assessor should have referred to or given her the opportunity to obtain legal advice on the question of the amendment to the statement of claim. It is also said that the Assessor should have advised the plaintiff that she could object to the admissibility of the three statements.

27 I do not accept those submissions. In expressing that view, I put to one side any question of general principle. The court does not need to dwell on any such matter in this case.

28 The Small Claims Division has been established to enable cheap and expeditious disposition of small claims. Its procedures take into account the likelihood that parties may be representing themselves. The Assessor was not dealing with a formal hearing. She was conducting an informal procedure. The parties had previously been given information by the Court as to relevant matters concerning the procedure for hearing. The role of the Assessor was to deal only with matters that fell within jurisdiction and to give the parties a reasonable opportunity to present their case.

29 As has been said many times, natural justice is a flexible concept. Each case will probably turn on its own particular circumstances. In my view, the plaintiff was given a reasonable opportunity to present her case. I am not satisfied that she suffered any denial of natural justice.

30 It might be added that a perusal of the judgment does not reveal error in the result that was reached by the Assessor. What involves a very modest dispute has now been the subject of two hearings. A further hearing would put the parties to further expense and occupy more valuable court time. It would not be in the public interest.

31 Before concluding, I should mention one further matter. During the course of his submissions, Mr Restuccia sought to raise one matter which fell outside the grounds of appeal. The transcript records that, during the course of the delivery of the judgment, the plaintiff sought to interrupt the Assessor. The Assessor did not allow her to do so and proceeded with the delivery of the judgment.

32 This was the first occasion on which such a point was sought to be raised. A half-hearted application for amendment was rejected. It was rejected for a number of reasons (including that it was raised at such a late stage and that it had no prospects of success. The Assessor was entitled to reject the interruption and proceed with her judgment. She had already given the plaintiff a reasonable opportunity to make submissions.

33 The summons is dismissed. The plaintiff is to pay the costs of the summons. The stay of proceedings is discharged.

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