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Wakim v Mathiew Pty Ltd t/as Dove Migration Services

Wakim v Mathiew Pty Ltd t/as Dove Migration Services

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Case Copied 9 May 2002 25 min read

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CITATION: Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405

FILE NUMBER(S): SC 11082/02

HEARING DATE(S): 6/5/02;8/5/02

JUDGMENT DATE: 9 May 2002

PARTIES :

Josie Wakim v Mathiew Pty Ltd t/s Dove Migration Services

JUDGMENT OF: O'Keefe J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : Mr G Thomas - plaintiff
No appearance for defendant

SOLICITORS: Adams Raves Marsh & Co, Sydney - plaintiff
Star Carver & Sons, Padstow - defendant

CATCHWORDS: Local Court - Small Claims Division - Standard or usual procedure - No application to vary - Procedural fairness - Written statements - Right to oral hearing - Right to cross-examine - Whether absence of either constitutes denial of natural justice - Amendment of grounds of appeal - Ambit of appeal from Local Court in civil cases - No repeal of section 69 of Local Courts (Civil Claims) Act 1970 by Pt 5 of Justices Legislation Amendment (Appeals) Act 1998 - Costs - Discretion

LEGISLATION CITED: Local Courts (Civil Claims) Act, 1970 (NSW) ss 12, 23B, 61, 63, 69, 69A
Practice Note No 3/2001 (Small Claims Division)
Justices Legislation Amendment (Appeals) Act, 1998
Supreme Court Act s 63
Supreme Court Rules Pt 20, Pt 72
Supreme Court Act s 63
Rules of Supreme Court Pt 20

CASES CITED: Pace v Read (2000) NSWSC 823, 18 August 2000 (unreported)
Kojima v Australian Chinese Newspapers [2000] NSWSC 1153
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312
The King v War Pensions Entitlement Appeal Tribunal: Ex parte Bott (1933) 50 CLR 228 at 248
The Queen v Commonwealth Conciliation and Arbitration Commission
Ex parte Angliss Group (1969) 122 CLR 546
Russell v Duke of Norfolk (1949) 1 All ER 109 at 118
University of Ceylon v Fernando (1960) 1 WLR 223
Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504
Salemi v MacKellar (No 2) (1977) 137 CLR 396
White v Ryde Municipal Council (1977) 2 NSWLR 909
Local Government Board v Arlidge (1915) AC 120
Jeffs v New Zealand Dairy Production and Marketing Board (1967) 1 AC 551
Jet 60 Minute Cleaners Pty Limited v Brownette (1981) 2 NSWLR 232
Chen v Minister for Immigration (194) 48 FCR 591
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
Beveridge v Dontan Pty Limited (1990) 23 NSWLR 13
Shannon v Lee Chun (1912) 15 CLR 257
Longhurst-Saunders v Cooper (1956) 73 WN (NSW)

DECISION: Summons dismissed; No order as to costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

9 May 2002

11082/02 Josie Wakim v Mathiew Pty Ltd T/AS Dove Migration Services

1 By summons dated 17 April 2002, Josie Wakim (the plaintiff) has appealed from a decision of a Magistrate given in the Small Claims Division of the Local Court on 26 February 2002 as a result of which judgment was entered in favour…

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.

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Details

Case: [2002] NSWSC 405
Decision Date: 9 May 2002

CaseChat Overview and Summary

The case of Wakim v Mathiew Pty Ltd t/as Dove Migration Services involved the appellant, Mr Wakim, who sought to appeal a decision of the Local Court's Small Claims Division. The dispute centred around procedural fairness in a civil claim involving an alleged breach of contract and misrepresentation by the respondent, Mathiew Pty Ltd, trading as Dove Migration Services. The appeal was heard and determined by the District Court of New South Wales.

The legal issues before the court encompassed whether the absence of written statements and an oral hearing, as well as the right to cross-examine, constituted a denial of natural justice. Additionally, the court examined the extent of its jurisdiction to amend the grounds of appeal and the implications of section 69 of the Local Courts (Civil Claims) Act 1970 in the context of the Justices Legislation Amendment (Appeals) Act 1998. The court also deliberated on the appropriate exercise of discretion in awarding costs.

The District Court found that the absence of written statements did not, in itself, amount to a denial of procedural fairness, as the appellant had not applied for such statements to be provided. Similarly, the absence of an oral hearing was not considered a denial of natural justice where no application had been made to vary the usual procedure. The court further held that the right to cross-examine was not a fundamental rule of natural justice in this context. Regarding the amendment of grounds of appeal, the court found that the amendment was permissible. The court also determined that section 69 of the Local Courts (Civil Claims) Act 1970 remained in force and was not repealed by the Justices Legislation Amendment (Appeals) Act 1998. Finally, the court exercised its discretion to award costs to the respondent.

The final orders of the court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal.

Orders