Xie v DY United Pty Limited
[2013] NSWSC 48
•04 February 2013
Supreme Court
New South Wales
Medium Neutral Citation: Xie v DY United Pty Limited [2013] NSWSC 48 Hearing dates: 4 February 2013 Decision date: 04 February 2013 Jurisdiction: Common Law Before: Johnson J Decision: Leave to appeal is refused. The Summons is dismissed.
An order is made under s.98(4)(c) Civil Procedure Act 2005 that the Plaintiff pay the Defendant's costs by way of a specified gross sum costs order in the amount of $6,000.00
Catchwords: APPEAL - Local Court - civil claim - Plaintiff fails to appear at hearing - Magistrate gives judgment for Defendant - Plaintiff applies to set aside judgment - Magistrate dismisses application - Parts 36.15 and 36.16 Uniform Civil Procedure Rules 2005 - application for leave to appeal to Supreme Court under s.40 Local Court Act 2007 - no arguable ground of appeal - approach of Court to unrepresented litigant - leave to appeal refused Legislation Cited: Local Court Act 2007
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005Cases Cited: Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402
Reisner v Bratt [2004] NSWCA 22
Northey v Bega Valley Shire Council [2012] NSWCA 28Texts Cited: --- Category: Principal judgment Parties: Stanley Xie (Plaintiff)
DY United Pty Limited (Defendant)Representation: Counsel:
Mr S Xie (in person)
Mr DP O'Connor (Defendant)
Solicitors:
Bazzi Lawyers (Defendant)
File Number(s): 2012/293768 Publication restriction: --- Decision under appeal
- Citation:
- ---
- Date of Decision:
- 2012-08-23 00:00:00
- Before:
- Magistrate Grogin
- File Number(s):
- 2010/345998
Judgment
JOHNSON J: By Summons filed 20 September 2012, the Plaintiff, Stanley Xie, seeks to appeal from certain decisions made in civil proceedings in the Local Court on 23 August 2012 involving the Defendant, DY United Pty Limited.
The substance of the proceedings involve an application by the Plaintiff to overturn a decision of Magistrate Grogin, made at the Downing Centre Local Court on 23 August 2012, refusing to set aside a civil judgment entered in favour of the Defendant against the Plaintiff on 13 December 2011, and an order by the Magistrate dismissing an Amended Statement of Claim which had been filed by the Plaintiff.
Relevant Provisions of Local Court Act 2007
The proceedings before this Court are brought pursuant to ss.39 and 40 Local Court Act 2007. I am satisfied that the orders made by Magistrate Grogin on 23 August 2012 are interlocutory, and that the judgment given by the learned Magistrate is an interlocutory judgment. As a result, by application of s.40(2)(a) Local Court Act 2007, the Plaintiff can appeal to this Court only with the leave of the Court.
If leave to appeal against an interlocutory judgment or order is granted, then the Plaintiff is confined to grounds of appeal which involve a question of law (as to which there is a right of appeal under s.39(1) of that Act), and to questions of mixed law and fact (as to which an appeal is available by leave of the Court only under s.40(1) Local Court Act 2007).
There is no appeal available by leave, or otherwise, with respect to questions of fact.
The Hearing of the Application for Leave
The Summons filed by the Plaintiff on 20 September 2012 asserted (at paragraph 7) that grounds of appeal were contained in an attached statement. There was, in fact, no statement containing grounds of appeal attached to the Summons. The Plaintiff did not identify proposed grounds of appeal until he filed and served a later document, being an affidavit affirmed on 26 November 2012.
Today, I have identified the proposed grounds of appeal offered by the Plaintiff (MFI1), to which I will return.
The Plaintiff has appeared unrepresented at the hearing of the Summons in this Court. He appeared unrepresented, as well, in the Local Court on 23 August 2012.
I should note that an acquaintance of the Plaintiff, a legal practitioner, Mr Xu, has been present in the Court throughout today's hearing. Mr Xu has not sought to appear for the Plaintiff, or to apply for leave to assist the Plaintiff during the hearing. He informed me that he was present in Court as an "observer".
In addition, an interpreter was present, arranged by the Plaintiff. As it happens, that interpreter has not been needed to any significant extent, as the transcript of today's hearing will show.
During the course of today's hearing, I have sought to allow time for the Plaintiff to consider some of the issues raised, both during the morning tea adjournment and over an extended lunch break. The Plaintiff took advantage of those opportunities and has made submissions to the Court.
The Defendant is represented by Mr DP O'Connor of counsel.
Factual Background
The factual background to the Summons may be stated shortly.
Amongst the documents before this Court is an affidavit of Danny Bazzi affirmed 3 August 2012, which is attached to the affidavit of Mr Bazzi affirmed 9 October 2012. The 3 August 2012 affidavit of Mr Bazzi was placed before Magistrate Grogin at the hearing on 23 August 2012.
In referring to some of the factual narrative, I will draw also upon the judgment delivered by Magistrate Grogin at the conclusion of the hearing on 23 August 2012, where his Honour touched upon factual matters as well as issues considered and determined by that Court.
The origin of the civil proceedings which are now before this Court arises from damage said to have been suffered to a taxi owned by the Plaintiff, who was a taxi operator in 2009. The Defendant is the owner of a smash repair business. The Plaintiff approached the Defendant for repairs to the taxi arising out of an accident. The Defendant alleges that the vehicle was repaired as per the instructions of the Plaintiff.
The Plaintiff asserts that the taxi was subsequently involved in another accident, and alleges that he lodged a claim pursuant to an insurance policy, but the insurer denied the claim on the basis that it had been repaired in a faulty manner. The Plaintiff alleges his vehicle was subsequently "written off".
The Plaintiff commenced proceedings in the Consumer, Trader and Tenancy Tribunal ("CTTT") in 2010 seeking the recovery of $32,385.00 which was made up of the pre-accident value of the vehicle, towing charges and economic loss.
The proceedings were transferred to the Local Court on the basis that the CTTT did not have jurisdiction to hear the matter, given that it was a debt recovery matter.
Upon commencement of proceedings in the Local Court, the Defendant issued a Cross Claim against the Plaintiff seeking the recovery of $2,649.00, said to be the cost of the repair work completed for the Plaintiff which remained unpaid.
Magistrate Grogin recited the history of the litigation throughout 2011 when the matter was before the Court on a number of occasions, culminating in the fixing of a hearing listed for 13 December 2011. As Magistrate Grogin observed, the record shows that until 11 August 2011, the Plaintiff was represented by a solicitor who, on that day, filed a Notice of Ceasing to Act.
Thereafter, for all relevant purposes, the Plaintiff has been unrepresented in the proceedings in the Local Court, and in this Court.
The matter was called on in the Local Court, in accordance with ordinary practice, at 9.30 am on 13 December 2011. The Defendant was represented by Mr O'Connor of counsel, who was present and ready to proceed with witnesses. There was no appearance by, or on behalf of, the Plaintiff.
The matter remained in the Court list for a period. The Local Court file indicates that, at 10.15 am, the Plaintiff was again not present and the matter proceeded to hearing (not before Magistrate Grogin). The Plaintiff's claim against the Defendant was dismissed. In relation to the Cross Claim, there was a verdict for the Defendant against the Plaintiff in the sum of $3,465.33, together with costs as agreed or assessed.
I pause to observe that the material before this Court, and the information before Magistrate Grogin, indicated that a witness for the Plaintiff, Mr Brian Christenson, was apparently present in the Local Court. He had appeared at the request of the Plaintiff. He apparently observed the process where the matter was called and ultimately disposed of.
The Plaintiff informed Magistrate Grogin, and has informed this Court, that he had worked late the night before and had slept in for a period, before leaving for Court by vehicle and being delayed in traffic. He has informed this Court today that he did not seek to telephone the Defendant's legal representative, nor telephone the Local Court to indicate that he was running late.
What occurred in the Local Court on that day is what one would ordinarily expect. The Downing Centre Local Court is a busy court, with multiple hearings listed where the Court will not allow matters to wait indefinitely without, at the very least, some request from a delayed party. Where a party such as the Defendant is present, legally represented and ready to proceed, it may be expected that the hearing will go ahead.
According to the affidavit of Mr Bazzi, as at the date of the hearing, the Defendant's professional costs and disbursements (including counsel) exceeded $11,000.00 and were the subject of orders made against the Plaintiff.
On 1 March 2012, Mr Bazzi wrote to the Plaintiff seeking the payment of the outstanding sums pursuant to the orders made. Thereafter, Mr Bazzi received an unaddressed facsimile with what was said to be a Summons, seeking leave to appeal, filed in the Supreme Court.
It appears that the Plaintiff commenced proceedings in this Court at that time, seeking to challenge the decision of 13 December 2011. According to the affidavit of Mr Bazzi, there were a number of appearances on behalf of the Defendant in the Supreme Court proceedings until the Plaintiff discontinued them in about June 2012.
In the meantime, the Plaintiff had filed in the Local Court, a Notice of Motion of 27 April 2012, seeking an order setting aside the judgment given on 13 December 2011. That is the Notice of Motion which was ultimately determined by Magistrate Grogin on 23 August 2012.
Magistrate Grogin recited a series of mentions of that Notice of Motion between April 2012 and August 2012, including an appearance before Magistrate Townsden on 28 June 2012 where, amongst other things, the Plaintiff was directed to file and serve any affidavits by 9 August 2012.
When the matter was called on before Magistrate Grogin on 23 August 2012, the Plaintiff appeared unrepresented and Mr Hanafi appeared for the Defendant. The Plaintiff was late to Court on 23 August 2012, and the matter was held in the list for a period until he did appear. At that point, because of other business in the list, the matter was stood down until not before 2.00 pm. Thereafter, Magistrate Grogin proceeded to hear and determine the Plaintiff's Notice of Motion.
As I have observed, the affidavit of Mr Bazzi was read on behalf of the Defendant. The Plaintiff had not filed and served any affidavit and did not seek to put any affidavit before Magistrate Grogin.
The transcript of the hearing before the Local Court on 23 August 2012 is in evidence. It records the arguments that were put and contains the ex tempore decision delivered by the learned Magistrate at the conclusion of the hearing.
I will, in due course, refer to some of the grounds of appeal relied upon by the Plaintiff. It should be observed, however, that his Honour went to some lengths to seek to ascertain from the Plaintiff the basis upon which the application was being made. The Plaintiff was of little assistance to the Court in that respect. There was an argument put that, effectively, the judgment ought to be set aside so that the hearing could proceed. No jurisdictional or legal basis was identified by the Plaintiff.
In due course, the Magistrate (after, no doubt, adverting to the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005), considered whether Part 36.15 or 36.16 of those Rules had application. His Honour proceeded to hear submissions with those issues in mind. His Honour was prepared to proceed on the basis that jurisdiction existed, so that he could determine whether the relief sought in the Notice of Motion should be granted.
The Local Court Judgment of 23 August 2012
It is appropriate to refer to his Honour's judgment. In doing so, I emphasise that it is an ex tempore and unrevised transcript of remarks in a busy Magistrate's court. Its content ought to be understood as arising in that context: Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at 407-408 [15].
The judgment extends over four typed pages. His Honour provided a chronology, to which I have made reference. His Honour identified (at pages 16 and following of the transcript) the provisions of Part 36.15 and 36.16 to which consideration was being given.
His Honour considered that Part 36.15 had no application. That provision is based upon an application to set aside a judgment given or entered or an order made irregularly, illegally or against good faith. I will return to that provision a little later.
His Honour focused upon Part 36.16(2)(b) of the Rules, which states that the Court may set aside or vary a judgment or order after it has been entered if it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order.
His Honour proceeded to consider a number of matters, on the assumption that this Rule provided a jurisdictional basis for the application.
Reference was made to the absence of any evidence provided by the Plaintiff pursuant to the orders of the Court. His Honour referred to the events in December 2011 and noted that (T17.7):
"Parties to proceedings have a right to get on with their life at some stage. They have a right where orders are made to adjust their finances and to adjust their affairs in reliance of finality of court proceedings".
His Honour noted the way in which the Downing Centre Local Court List operated at 9.30 am on any day, including 13 December 2011. His Honour observed (T17.26):
"Dismissing a case because of the lack of a party is something which this court does not take lightly, but the consideration of all parties involved need be at the forefront of any judicial officer's mind. If I were to look at therefore these provisions, we are now eight months since the matter was ostensibly finalised. There was a hearing on the merits of the cross-claim. The affidavit of Mr Bazzi of 3 August 2012 indicates that they had their solicitors, counsel and witnesses at court."
His Honour then proceeded to look at the proposed Amended Statement of Claim, which was the document proffered by the Plaintiff at that hearing. After looking at the statement of argument, his Honour observed that it was an "extremely questionable case" being presented by the Plaintiff. His Honour said (T17.42):
"I am not here to judge the prospects of success or the ultimate decision as far as the plaintiff's claim was concerned, however when one looks at the particulars it does seem that there are a number of hurdles that the plaintiff would have had to meet in order for his claim to be successful."
The Magistrate observed again (T17.45):
"Through the passage of time the defendant has no doubt, and witnesses in particular, have ordered their affairs in reliance of the 13 December 2011 decision of the court.."
His Honour said (T17.49-18.8):
"Taking those matters which I have already mentioned, I'm well aware of the need for natural justice and that justice must be seen to be done and also be done, but I find that the decision on 13 December 2001 [sic] was made properly. There is still the question of whether this court does in fact have jurisdiction to vary or set aside the order, and whether it is functus or not.
Even if the court did have jurisdiction, and I am not satisfied that the court does, but even if this court does have jurisdiction to hear the application I am not satisfied on the balance of probabilities, I am not satisfied that in the interests of justice the notice of motion should be granted".
An order was made dismissing the Notice of Motion.
An order for costs was made against the Plaintiff, and the Amended Statement of Claim that had been filed (which appears to have followed fairly closely the first Statement of Claim) was in turn dismissed.
On 20 September 2012, the Summons by which the Plaintiff seeks to challenge the decision of the Local Court of 23 August 2012 was filed in this Court. As the transcript of the present hearing will reveal, a number of affidavits and materials were put before the Court today upon the bases which I indicated at the time of relevant rulings.
This Court is asked to exercise an appellate jurisdiction by reference to the hearing on 23 August 2012 and the decision made by the Magistrate at the conclusion of that hearing.
Plaintiff's Grounds of Appeal
The grounds of appeal (MFI1) should be referred to at this point.
Mr O'Connor submitted that however these grounds were framed, they were effectively not raising questions of law or questions of mixed fact or law, but questions of fact, or a claim of denial of procedural fairness in circumstances where that claim is simply unsustainable having regard to what occurred.
The document contains five grounds.
Ground 1 is headed "Reason for repudiating the default judgment in court below". This ground is formulated on the inaccurate basis that there was a default judgment. There was in fact a hearing on 13 December 2011 which proceeded in the absence of the Plaintiff, at the end of which judgment was entered in favour of the Defendant.
What is asserted here is that the Plaintiff was late "because of the traffic jam and the traffic jam was an irresistible accident". I do not regard this ground as a ground of appeal that can fall within ss.39 or 40 of the Local Court Act 2007, but I will return to this shortly when considering Part 36.16 of the Rules.
The second ground of appeal asserts "there is an error of law in the decision of the court below", and the document asserts the Magistrate did not have sufficient time to fully read the file and understand the Plaintiff's "complicated case". It is said that the decision did not mention certain "core points", which seem to go to what the Plaintiff says were the merits of the case, and that the decision was made at an "incomplete hearing" and "missed the points", including the reason why the Plaintiff's solicitor resigned from the case. It is asserted that the Magistrate asked "but did not listen" to the Plaintiff's answers.
This ground appears to assert, at its highest, a type of denial of procedural fairness. I bear in mind that the Plaintiff had not sought to put any affidavit before the Local Court. The transcript of the hearing and the judgment referred to Mr Bazzi's affidavit, some matters on the Court file, and the arguments which were advanced.
I will say more about this in due course. However, a reading of the transcript of the Local Court reveals that the Magistrate listened to what the Plaintiff said, attempted to obtain an understanding of it and ultimately provided a detailed decision.
The third ground of appeal asserts "the judgment made under insufficiency of considering the fairness". This ground asserts that his Honour did not ask why the Plaintiff was not able to find a suitable legal representative and did not ask certain other things.
I will, in due course, say something about the role of judicial officers with unrepresented litigants. However, it seems to me that this ground misconceives the nature of the hearing and the obligations of the Magistrate presiding. It was the duty of the Plaintiff to assist the Court by exposing the propositions of law and fact upon which he sought to rely. In my opinion, the Magistrate did more than what could reasonably be expected in the course of the hearing to obtain an understanding of what the Plaintiff was seeking to do.
The fourth ground of appeal asserts "I believe some legal points should be mentioned but not capable to be given in that hearing". The ground then states "some legal points I should be asked and presented but in that hearing I did not have a chance to do so. Some legal points will be presented more persuasive if I had a legal representative. There could be more important points in favour of me, but there I think I missed them out because I did not have proper legal advice".
I have already referred to the extended chronology leading up to 23 August 2012. The Plaintiff was represented at one time. There was clearly more than reasonable opportunity for the Plaintiff to obtain some legal advice, formal or informal. In any event, the ground asserted in ground four is simply misconceived in my view.
Ground five asserts "the judgment made in court below did not considered the strong argument case". This ground asserts the Plaintiff believes he had a strong case and expert evidence, and that the Magistrate did not consider that case.
The Plaintiff put no evidence before the Local Court on 23 August 2012 with respect to the strength of his case. As I have mentioned, a direction had been given in June 2012 for the Plaintiff to file and serve affidavits by 9 August 2012. He tells this Court that he had assumed that an expert statement of Mr Christenson had been filed by his previous solicitor, who had departed from the litigation more than a year before. However, he did not check that it was there, nor, according to the transcript, did he assert to the Magistrate that it was there. Accordingly, the Magistrate was doing his best with the material before that Court.
I pause to observe that I did allow the Plaintiff (having regard, in particular, to his unrepresented status, and to assist the flow of the hearing in this Court), to rely upon some material going to the merits of his case. I have looked at that material on the limited basis indicated during the hearing. It seems to me that it reveals that he had a case to argue, but not as powerful a case as the Plaintiff contends. However, the fundamental problem for the Plaintiff was that it was his obligation as a civil litigant (bearing in mind s.56 Civil Procedure Act 2005) to put this material before the Local Court on 23 August 2012 and he did not do so.
The grounds of appeal were amplified today in various respects in oral submissions from the Plaintiff. The argument was put that, effectively, the Magistrate should have adjourned the proceedings, even though the Plaintiff did not ask him to do so on 23 August 2012 and that, in some way, the failure of the Magistrate to adjourn the proceedings constitutes a basis for the Plaintiff to obtain relief from this Court. Again, in my view, this submission is misconceived.
The role of a Court in cases where a party is unrepresented has been referred to in a number of decisions, including the Court of Appeal decision in Reisner v Bratt [2004] NSWCA 22, where Hodgson JA (Ipp JA agreeing) said at [3]-[6]:
[3] The claimant is unrepresented, and was unrepresented before the primary judge. Before considering the grounds on which the claimant seeks to rely, it is necessary to say something about the role of the Court in cases where a party is unrepresented and for that reason a case is not adequately presented to the Court.
[4] Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.
[5] In deciding what to do when a case is not adequately presented by an unrepresented litigant, it is appropriate for the Court to take into account that, in some cases, the circumstance that one party is unrepresented can place far greater burdens of time and costs on the other party than would be involved if both litigants had competent representation. There are a number of reasons for this, including the following: the time and costs involved in trying to understand and answer claims that are not formulated so as to clearly raise relevant issues can be much greater than where relevant issues are clearly raised; adjournments are often required, because an unrepresented party is not ready to proceed with the case, either because material required for presentation of the case is not available or for other reasons; and when a case is actually heard, the hearing itself may be much longer than if both sides were represented by a lawyer.
[6] Where a case is brought before the Court by an unrepresented litigant, and material required for adequate consideration of that person's case is not available or not presented to the Court, it is not generally the case that the Court should itself undertake an investigation of whether such material exists, and if so, seek to have it brought to the Court so that it can be considered. It may be sometimes appropriate for the Court to attempt to have such material available, particularly if the deficiency of the material is obvious and can be remedied without prejudice to the other side; but otherwise, it would generally conflict with the Court's position as an impartial adjudicator for it to take steps to seek to improve an unrepresented litigant's case by investigating whether there is more material to support that case than has been presented to the Court, and then taking steps to obtain that material."
I mention those propositions because it seems to me, with the greatest of respect, that Magistrate Grogin complied with the obligations placed on the Court where this unrepresented Plaintiff was appearing before him. According to the transcript, his Honour listened patiently to the Plaintiff, and raised the question of Part 36 of the Rules, the Plaintiff apparently having no understanding of that provision himself at that point.
The Plaintiff did not ask for an adjournment. The Plaintiff did not assert that he could readily put further material before the Court. In my view, the manner in which his Honour conducted the hearing at first instance cannot be reasonably criticised.
Part 36.15 and 36.16 Uniform Civil Procedure Rules 2005
I turn now to the relevant provisions in Part 36 of the Rules.
I have mentioned that his Honour noted the existence of Part 36.15 before expressing the view that this provision did not appear to be applicable. The Plaintiff had not advanced any argument before the Local Court by reference to Part 36.15. However, in an affidavit affirmed 26 November 2012 (at paragraphs 39-41), there was an effort on the part of the Plaintiff to engage that provision.
As I understand the argument contained in that part of the affidavit (which I treat as a submission taken together with the oral submission of the Plaintiff), it is that the order made on 13 December 2011 was made against good faith. Paragraph 41 of the Plaintiff's affidavit, relied upon by him directly in oral submissions, asserted that at the moment when the Magistrate became aware that the Plaintiff had not filed any affidavit, "he should have corrected my good faith mistake by adjourning the hearing and giving me a fair opportunity to re-enter the affidavits, but he failed to do so, which eventually denied me natural justice".
If the Plaintiff here is attempting to assert that the concept of "good faith" in Part 36.15 derives meaning in the way in which he has put it as a "good faith mistake", then the proposition is misconceived. If the Plaintiff is saying that the Magistrate was bound to adjourn the proceedings because the Magistrate became aware that the Plaintiff did not understand what was happening, then I am simply not persuaded that that is a fair understanding of what was happening on this occasion.
A direction had been given in June 2012 for the Plaintiff to file any affidavits and he had not done so. He had not checked the Local Court file to see if there was anything there. The Plaintiff is a party to civil proceedings with duties to the Court to act in accordance with the obligation in s.56 Civil Procedure Act 2005. That obligation includes a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of the Act, and effectively to assist the just, quick and cheap resolution of the real issues in dispute. The proposition advanced by the Plaintiff is inconsistent with that obligation, and is not supported by the evidence.
In my view, the Magistrate was quite correct to determine that Part 36.15 had no application to this case.
As to Part 36.16 of the Rules, it was the Magistrate who raised this in a manner that was entirely fair to the Plaintiff, and his Honour then considered issues that may arise.
During the course of the hearing, I drew the attention of the parties in this Court to the decision of Barrett JA in Northey v Bega Valley Shire Council [2012] NSWCA 28. There, his Honour considered relevant principles concerning Part 36.16(2)(b) of the Rules. The statement of principles and reference to authorities in that case is of assistance in the determination of this case.
Although the learned Magistrate's attention was not drawn to this decision at the hearing on 23 August 2012, it is fair to observe that his Honour effectively applied the principles summarised by Barrett JA in Northey v Bega Valley Shire Council in determining the Notice of Motion.
Barrett JA said at [12]-[17]:
"[12] I turn, therefore, to r 36.16(2)(b) which reflects what Griffith CJ, in Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694, called 'an elementary rule of justice'.
[13] It is not disputed that Ms Northey was absent (and was not represented) on 21 March 2011 when the order was made. But that, of itself, is insufficient to justify setting aside of the order. There must be some added factor that makes it unjust for the order to stand.
[14] In arguing that a court should set aside an order that was regularly made, an applicant under r 36.16(2)(b) must contend with the proposition that great value attaches to certainty in the outcome of litigation. It is relevant to quote what was said by Gibbs CJ, Mason J, Wilson J, Brennan J and Dawson J in University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 59 ALJR 481 at 482-3:
It may be assumed, without deciding, that the court has power to vacate its order of 22 November 1984, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard.
[15] This passage enjoins 'great caution' in approaching applications of the kind that Ms Northey now presses. It also gives some examples of situations in which it may be found appropriate for the court to intervene in relation to a final order that has been perfected: where the order was made by mistake, where the order was made as a result of fraud and where, by some accident, an order has been made against a party who was not heard.
[16] The central question is whether it is unjust to let the perfected order stand. The matter was put thus by Jordan CJ (Davidson J and Roper J concurring) in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4:
The question is whether, upon the material that has been placed before us, there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand. If so, it should be set aside on such terms as it will minimise the possibility of injustice to the plaintiff. If not, we should not interfere.
[17] Examples of cases in which such a factor indicative of injustice has been found to be at work are:
(a) where the applicant proceeded to obtain the order in the face of an agreement with the respondent not to do so: Double Bay Newspapers Pty Ltd v Fitness Lounge Pty Ltd [2006] NSWSC 226; (2006) 57 ACSR 131;
(b) where the applicant proceeded to obtain the order despite the respondent's accountant having been told by the applicant that "nothing would happen" while negotiations continued: Deputy Cmr of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755;
(c) where the applicant proceeded to obtain the order after overlooking the fact that the basis for doing so had disappeared: Workers Compensation Nominal Insurer Pty Ltd; re Deli Glenbrook Pty Ltd [2010] FCA 380; and
(d) where solicitors instructed by the respondent in the proceedings failed to protect the respondent's interests: Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 137 ALR 404."
The absent party in Northey v Bega Valley Shire Council was apparently flood bound in rural New South Wales at the time of the hearing and had some belief a lawyer was going to attend (see [26]ff of the judgment). At [29], Barrett JA observed, after referring to the evidence:
"I return to the proposition that, to justify an order under rule 36.16(2)(b), the fact of the affected party's absence when an order is made must be accompanied by some additional factor that makes it unjust for the affected order to stand".
His Honour observed, at [38], that a factor bearing upon the exercise of discretion where application is made to set aside a judgment or order is delay, and that, as his Honour put it:
"The strength of any claim a party may have to have a perfected order set aside necessarily diminishes with the passage of time. This is a very important aspect of the great value attached to certainty in the outcome of litigation. It is one thing for a party who feels aggrieved to apply within a few days or perhaps a few weeks after learning of an order made in the party's absence. A party who does not apply for eight months must, of necessity, present a very much more compelling case to disturb the finality of the order in question."
The Plaintiff accepts that it was his fault that he did not attend on 13 December 2011. He accepts that he slept in, but says that he left for Court at about 8.30 am. He says there was a traffic delay. He acknowledges that he made no effort to contact the Court or the legal representatives for the Defendant.
The circumstances relied upon by the Plaintiff demonstrate absence by him on the hearing day. However, I do not perceive any additional factor upon which he relies which will assist him. What he describes is a predictable scenario, capable of being met in any event by communication with the Court or the Defendant's legal representatives. He did not do that.
In my view, there is a fundamental problem with the Plaintiff utilising Part 36.16 in these circumstances. An important part of this rule is that great value attaches to the certainty and finality of litigation. In addition, if such an application is made, the longer it is left, the harder it will be for an applicant. As I have said, a number of matters referred to by Magistrate Grogin pick up considerations of that type.
The Plaintiff says that he has a strong case and he, in effect, has a right to be heard in Court with respect to that. He did not put any material before the Local Court on 23 August 2012 to support that proposition. I have mentioned there is some material before this Court to which I have, for a limited purpose, made reference.
The Plaintiff puts his case upon the basis that he has a natural right, an entitlement in effect, to have a hearing on the merits. Although he did not turn up on 13 December 2011, and he did not make an application to set aside that order for some months, and he did not put on evidence or advance arguments in the Local Court on 23 August 2012, he argues that he has a right, effectively, to have the full case heard.
The administration of civil justice in this State acknowledges the rights of parties to litigation. It also emphasises the duties and obligations of parties to be present and participate in the litigation, to attend Court on fixed days and to discharge their duties as litigants. The rights of the Plaintiff are to be assessed in the context of a contemporary system of civil justice contained in the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005.
The Plaintiff well knew that the hearing was fixed for 9.30 am on 13 August 2011. He did not appear. He made no contact. Orders were made. Thereafter, he seeks to bring an application. He presented it in the way he did in August 2012. It was dismissed.
The Plaintiff now seeks to come to this Court by way of a statutory appeal. This Court has examined, at some considerable length, the matters which arose before the Magistrate for the purpose of determining this application. The rights of the Plaintiff are to be considered in the context of the statutory scheme which I have described, including the limited form of appeal to this Court under the Local Court Act 2007. It is not the position that there are open-ended opportunities to litigate.
I have taken the course of setting out, at some length, my reasons with respect to this application for leave to appeal. I have done that in the hope that articulated reasons will assist the Plaintiff to understand why he has not succeeded on this application.
A very significant amount of time has been taken up in different Courts. The Defendant has been required to attend on a number of occasions. It is necessary for this litigation to reach some conclusion.
Conclusion and Orders
I am not satisfied that the Plaintiff's proposed grounds of appeal are sufficiently arguable to call for a grant of leave. The grounds do not identify, in my view, arguable errors of law or mixed fact and law.
I am not satisfied that the Plaintiff has demonstrated a proper basis for leave to appeal against the judgment and order of 23 August 2012.
Leave to appeal is refused. The Summons is dismissed.
[Mr O'Connor sought an order for costs in a specified gross sum]
I have given judgment in this matter and made orders with respect to the proceedings.
At the conclusion of the judgment, Mr O'Connor sought an order for costs against the Plaintiff, and made a submission that this was an appropriate case for a specified gross sum costs order, instead of assessed costs, under s.98(4)(c) Civil Procedure Act 2005.
A sum of $10,680.00 was indicated as being a sum which the Defendant had incurred as a result of these proceedings.
In the course of submissions, I indicated to Mr O'Connor a view that any fixed sum costs order which I would make would be in the order of $6,000.00.
Mr O'Connor has obtained instructions to seek an order in that sum and the Plaintiff does not seek to be heard against the making of that order.
I am satisfied that this is an appropriate case for the making of a specified gross sum costs order. These proceedings arise out of litigation in the Local Court and it is in the interests of the parties and in the interests of justice that the resolution of outstanding questions, including costs, be achieved in a just, quick and cheap way.
Accordingly, I make an order under s.98(4)(c) Civil Procedure Act 2005 that the Plaintiff pay the Defendant's costs by way of a specified gross sum costs order in the amount of $6,000.00.
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Decision last updated: 20 February 2013
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