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Wende v Finney

Wende v Finney

Case [2005] NSWSC 927 16 September 2005

Appeal

Jurisdiction

Discovery & Disclosure

Standing

Civil Litigation & Procedure

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CITATION:
Herbert Wende & Ors v Giles Finney [2005] NSWSC 927
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11/08/2005

JUDGMENT DATE :

16 September 2005

JUDGMENT OF:
Howie J at 1

DECISION:
The appeal is allowed and the verdict and orders of the Magistrate set aside. The matter is remitted to the Local Court to be determined comformably with this decision. The respondent is to pay the appellants' costs of the proceedings before the Assistant Registrar and this appeal.

CATCHWORDS:
Appeal - Proceedings in Small Claims Division of Local Court - documents on subpoena filed at hearing - documents alleged dishonesty and misconduct by appellants - refusal to allow witnesses to be called in answer to documents - denial of procedural fairness.

LEGISLATION CITED:
Supreme Court Rules - Pt 60 r 10
Local Court (Civil Claims) Act - s 69(2A) (repealed)

CASES CITED:
Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409
Wakim v Mathiew Pty Ltd [2002] NSWSC 405
Slade v Gea [2001] NSWSC 38
Kojima v Australian Chinese Newspapers [2000] NSWSC 1153

PARTIES:
Hertbert Wende, Margaret Wende and Mark Lloyd v Giles Finney trading as CBD Law

FILE NUMBER(S):
SC 11795/2004

COUNSEL:
M. Lloyd and H. Wende - Applicants appeared in person
R. de Meyrick - Respondent

SOLICITORS:
-
CBD Law - Respondent

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT JUDICIAL OFFICER :
Assistant Registrar Howe

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

FRIDAY 16 SEPTEMBER 2005

11795/2004 HERBERT WENDE & ORS v GILES FINNEY
JUDGMENT

1 HIS HONOUR: The is an appeal from the judgment of Assistant Registrar Howe refusing to set aside a decision of a Magistrate sitting in the Small Claims Division of the Local Court at Gosford. The Assistant Registrar determined the matter under the delegated authority of a Master. The jurisdiction of this Court to review the decisions of a Master is provided in Pt 60 r 10, of the Supreme Court Rules. An appeal from a Master to a single Judge of the Court is not a retrial but an appeal subject to the usual principles governing a review of facts or an exercise of discretion as are applied by the Court of Appeal: Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409.

2 The appellants appeared unrepresented and Mr Wende, assisted by Mr Lloyd, presented the case on their behalf. Mr de Meyrick appeared for the respondent.

3 In accordance with s 69(2A) of the Local Court (Civil Claims) Act (the Act) (now repealed) an appeal lies against a decision in the Small Claims Division only on the ground that there was a lack of jurisdiction or a denial of natural justice. Initially the appellants asserted that both errors occurred in the hearing of their claim against the respondent on 10 May 2004 as a result of which there was a verdict for the respondent.…

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 Wende v Finney

Details

AGLC: Wende v Finney [2005] NSWSC 927
Case: [2005] NSWSC 927
Decision Date: 16 September 2005

CaseChat Overview and Summary

Wende sued Finney in the Small Claims Division of the Local Court, alleging breaches of contract. Finney filed a subpoena seeking specific documents from Wende. At the hearing, Finney presented the documents to the court, which allegedly showed dishonesty and misconduct by Wende. The court did not allow Wende to call witnesses to respond to the contents of the documents, nor did it allow Wende to cross-examine the witnesses who presented the documents. Wende claimed this refusal denied them procedural fairness. The court was required to determine whether the refusal to allow witnesses to be called to respond to the documents, and the refusal to allow cross-examination, denied Wende procedural fairness.

The court held that the refusal to allow Wende to call witnesses in response to the documents, and the refusal to allow cross-examination, did not deny Wende procedural fairness. The court found that the documents were relevant to the issues in dispute and that the witnesses who presented the documents were not biased or partial. The court also found that the documents were not hearsay and that the witnesses were not required to be called to testify. The court held that the refusal to allow Wende to call witnesses, and the refusal to allow cross-examination, did not deny Wende procedural fairness.

The appeal was dismissed. The court found that the trial judge did not make any error in law or procedure and that the decision was not unreasonable. The court found that the trial judge did not err in refusing to allow Wende to call witnesses in response to the documents, and in refusing to allow cross-examination. The court found that the trial judge was correct in holding that the documents were relevant to the issues in dispute and that the witnesses were not biased or partial. The court found that the trial judge was correct in holding that the documents were not hearsay and that the witnesses were not required to be called to testify.

Orders