Walker v Rothlands

[2003] NSWSC 902

CITATION:	Walker v Rothlands [2003] NSWSC 902
HEARING DATE(S):	2 October 2003
JUDGMENT DATE:	2 October 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The Summons is dismissed. The plaintiff Joanne Walker is to pay the costs of the proceedings. I order that the costs be paid on the indemnity basis. I direct that no further documents be filed by her in this Court without the prior leave of a judge. Pursuant to Pt 52A r 9 (3) of the Supreme Court Rules 1970 I order that the costs in the sum of $4,000, being part of the costs sought by the defendant, be payable forthwith. I order that the Exhibit be returned.
CATCHWORDS:	Appeal from Local Court - adjournment sought by facsimile transmission - false medical certificate - appeal heard ex parte - no error of law.
LEGISLATION CITED:	Supreme Court Rules 1970, Pt 52A r 9 (3).
CASES CITED:	N/A
PARTIES :	Joanne Walker (Plaintiff) v Rothlands Pty Ltd (Defendant)
FILE NUMBER(S):	SC 12016 of 2003
COUNSEL:	N/A (Plaintiff) Mr R D Marshall (Defendant)
SOLICITORS:	No Appearance (Plaintiff) Baldwin Oates & Tidbury (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	212 of 2003 Downing Centre Local Court
LOWER COURT JUDICIAL OFFICER :	Barkell LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

2 October 2003

12016 of 2003 Joanne Walker v Rothlands Pty Limited

JUDGMENT

1 MASTER: The plaintiff and Mr Chris Tsingolis brought proceedings in the Local Court. By Ordinary Statement of Claim, a claim for damages was made. It was founded on conversion.

2 The proceedings were defended. The notice of grounds of defence raised a number of issues in answer to the claim.

3 The proceedings were heard on 5 March 2003 and 19 May 2003 by Barkells LCM. The judgment of the learned Magistrate was delivered on 11 July 2003 and the learned Magistrate found in favour of the defendant.

4 In determining the matter, the learned Magistrate merely addressed one of the many defences raised in answer to the claim. The defendant was found to be successful on the issue of whether or not there was an entitlement to maintain the claim for conversion.

5 In reaching her decision the learned Magistrate had regard, inter alia, to the oral evidence that had been led. Adverse findings of credit were made in respect of witnesses led in support of the claim (including the evidence of the plaintiff).

6 The learned Magistrate preferred the evidence adduced on behalf of the defendant. These findings led her to make the findings of fact which saw the defeat of the claim.

7 Proceedings have now been brought in this Court. A Summons was filed on 7 August 2003. It purports to be brought in the name of Joanne Walker and Chris Tsingolis. However, the Summons contained in the file has the name Chris Tsingolis struck out in black biro. The striking out appears to be the subject of the same biro used by the party whose signature appears on the Summons. That party appears to be the plaintiff. There is nothing else to suggest that Mr Chris Tsingolis has had any involvement in these proceedings and that he has in any way authorised the commencement of them.

8 The claim made in the summons is in the following terms:

“The Plaintiff claims:
1 An order that the decision on 11.07.2003 be overturned due to an incorrect ruling Contrary To The Facts.”

9 The appeal was heard on 2 October 2003. It was heard ex parte. The plaintiff, who has been unrepresented throughout the proceedings, did not attend.

10 I have earlier dealt with the applications made relating to that non-attendance and the facsimile sent to the court (see transcript). The court had before it evidence that the medical certificate which formed part of the transmission was not the document of Dr Nakhle, that the plaintiff professed not to know about it and that she was not currently in a hospital.

11 I acceded to the application of the defendant that the proceedings should be determined today whether or not the plaintiff was present. In so doing, I rejected any application for adjournment sought in the facsimile transmitted to the court.

12 The purport of the Summons is to propound an appeal against the decision of the learned Magistrate. In support of it the plaintiff filed an affidavit. The apparent purpose of the affidavit was to conduct the appeal as a fresh hearing. Objection was taken to this approach and the proposed fresh evidence was rejected.

13 The appeal proceeded on the material that had been put before the learned Magistrate. The appeal chosen by the plaintiff offers but a narrow avenue of challenge to the decision. It is restricted to error of law. The plaintiff bears the onus of satisfying the court that there is an error of law which justifies me in interfering with the decision.

14 The appeal is doomed to failure. A careful examination of the material reveals no error of law. It is not a case in which it could be said that there was no evidence to found the findings of fact made by the learned Magistrate. The findings of fact were founded on findings of credit which were reasonably open to the learned Magistrate.

15 The plaintiff had no prospects of discharging the requisite onus. Accordingly, the appeal must fail.

16 By way of completeness, I should add that proceedings seeking to agitate similar issues were earlier dismissed in the Equity Division of this Court.

17 The Summons is dismissed. The plaintiff Joanne Walker is to pay the costs of the proceedings.

18 The defendant has sought an order that the costs be paid on an indemnity basis. In view of inter alia the hopelessness of this appeal, and the conduct of the plaintiff in relation to it, I am satisfied, that the defendant is entitled to such an order. Accordingly, I order that the costs be paid on an indemnity basis.

19 The past history suggests that the plaintiff may persist with further attempts to litigate the same issues. In those circumstances it seems to me to be appropriate to make a direction that no further documents be filed by her in this Court without the prior leave of a Judge and I so order.

20 The defendant has made an application for an order pursuant to Pt 52A.9(3) of the Supreme Court Rules 1970. It seems to me that in the very unusual particular circumstances of this case that justice is best served if I make an order. The Court has been informed that a bill of costs in a sum of at least $6,000 would be rendered. On any view, that would seem to be a reasonable (if not modest) assessment. In the circumstances, I consider that the court should order that a specified amount, on account of costs be payable forthwith. The specified amount is to be in the sum of $4,000.

21 Accordingly, I order that costs in the sum of $4,000, being part of the costs sought by the defendant, be payable forthwith.

22 I order that the exhibit be returned.

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Last Modified: 10/09/2003