Zadeh v The Hollard Insurance Company Pty Ltd

[2022] NSWSC 345

Supreme Court

New South Wales

Medium Neutral Citation:

Zadeh v The Hollard Insurance Company Pty Ltd [2022] NSWSC 345

Hearing dates:

3 January 2022, 2 March 2022

Date of orders:

29 March 2022

Decision date:

29 March 2022

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders:

(1) The summons filed 9 July 2021 is dismissed.

(2) The plaintiff is to pay the defendants costs of the proceedings including the notice of motion filed 5 October 2021 and 2 November 2021.

Catchwords:

CIVIL PROCEDURE — Jurisdiction — Transfer from District Court — Whether appeal is competent? — Whether proceedings are an ‘action’ for the purposes of s 127 of the District Court Act 1973 (NSW)? — Dismissed

Legislation Cited:

District Court Act 1973 (NSW) ss 44, 127

Insurance Contract Act (Cth) s 60(3)

Local Court Act 2007 (NSW) s 39

Uniform Civil Procedure Act 2005 (NSW) s 56

Uniform Civil Procedure Rules 2005 (NSW) r 50.12

Cases Cited:

AB v State of New South Wales [2014] NSWCA 243

House v R (1936) 55 CLR 499

Kioa v West (1985) 159 CLR 550

Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 282

Wang v Botany View Hotel (No 4) [2019] NSWSC 1323

Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674

Category:

Principal judgment

Parties:

Parviz Haji Zadeh (Plaintiff)
The Hollard Insurance Company Pty Ltd (Defendant)

Representation:

Counsel:
J Gruzman (Defendant)

Solicitors:
Self-represented (Plaintiff)
Grace Lawyers (Defendant)

File Number(s):

2021/202214

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Date of Decision:

15 June 2021

Before:

Judicial Registrar Howard

File Number(s):

2021/63435

Judgment

1. HER HONOUR: By the summons filed 9 July 2021 the plaintiff seeks to appeal the whole decision of District Court Registrar, J. Howard (“the Judicial Registrar”), in proceedings no. 2021/63435. The District Court proceedings were an appeal of the decision of the Assessor in the Small Claims Division of the Local Court.

2. The plaintiff is Mr Haji Zadeh Parviz. The defendant is The Hollard Insurance Company Pty Ltd.

3. On 3 February 2022 the plaintiff appeared via telephone. Counsel for the defendant appeared via videolink. Due to various technical difficulties it was not possible to understand the parties nor obtain a proper transcript. The proceedings were adjourned to 2 March 2022 for hearing.

4. On 2 March 2022 the hearing took place in a Court room. On that day the plaintiff appeared self-represented. Mr J. Gruzman appeared for the defendant. Both the notice of motion and the appeal had previously been ordered to be heard together. Despite the plaintiff’s objection to this course of action, as the hearing of the appeal and the defendant’s notice of motion involve the same evidence, in compliance with s 56 of the Uniform Civil Procedure Act 2005 (NSW) (“UCPR”), the hearing of these matters together results in a quick, cheap and just resolution. The defendant relied upon a court book (Ex 1).

5. By notice of motion filed 2 November 2021, the first defendant relevantly seeks:

1. The time for the first defendant to file the motion objecting to the competency of the appeal to extended to Friday 5 November 2021;

2. The summons filed on 9 July 2021 be dismissed as incompetent;

3. Alternatively, the summons be dismissed.

6. In opening submissions, the plaintiff said he had come to this Court “seeking justice”.

The grounds of appeal in this Court

7. The appeal grounds are set out in the plaintiff’s statement. They relate to the hearing in the Small Claims Division and the hearing before the Judicial Registrar. They are lengthy. They can best be summarised as follows:

1. the Assessor had a lack of attention to his statement;

2. the defendant filed volumes of paperwork and the Assessor did not read all of the materials;

3. the Assessor just followed Australian Financial Complaints Authority’s (“AFCA”) decision;

4. the plaintiff's Counsel, Mr Conomos (“plaintiff’s Counsel”), represented the plaintiff without permission or knowledge of the proceedings;

5. the plaintiff's Counsel misrepresented the plaintiff's case; and

6. the plaintiff's application for further oral evidence on the day of the hearing, was refused.

7. On 5 June 2021, the judicial Registrar:

1. failed to pay attention to his case documents and materials;

2. did not let him clarify his case; and

3. did not pay attention to the fact that the defendant’s defence was filed 2 days late in the Small Claims Tribunal.

8. The plaintiff’s grounds of Appeal refer to the decisions made by the Assessor in the Small Claims Tribunal (Appeal Grounds (a)-(f)) and the judicial Registrar in the District Court (Appeal Ground (g)). There is no right of appeal from the decision of the Assessor directly to this Court, so I will refer to the Assessors decision by way of background.

Background

9. On 5 December 2019, the plaintiff commenced proceedings in the Small Claims Division of the Local Court against the defendant seeking $7,897.38 plus interest and costs. The plaintiff made a claim on his policy of insurance in respect of the loss of his motor vehicle. The defendant had declined to indemnify him due to the non­disclosure of his claims history.

The hearing before the Assessor in the Local Court, Small Claims Division

10. By way of oral and written submissions, the plaintiff explained the case he ran before the Assessor and repeated most of the same arguments before me. As best as I can understand, his submissions are as follows.

11. The plaintiff explained that he entered into the insurance policy online. The company selling the policy was Woolworths. However, at the time of the sale, Woolworths failed to reveal that ‘Hollard’ a South African Company, was actually the insurer.

12. Had the plaintiff known that the insurance policy was actually with Hollard, he would not have gone ahead and entered into the policy. He would have gone elsewhere. He says that in the voice recording of his purchase and in the whole copy of the policy there is no reference to Hollard’s existence. The plaintiff submits that this was a lack of product disclosure by Woolworths.

13. Initially the questions posed to the plaintiff online were automated ones and then were followed up by questions asked by the claims officer, Ms Russell (“the claims officer”). The automated questions were spoken by someone with an accent. The plaintiff says that he had difficulties understanding the accent, particularly the question he was apparently asked about disclosure of prior claims. The certificate of insurance issued records that he had said that he had no previous claims. This was this question that the plaintiff says he could not understand and did not answer.

14. While the name Hollards appears at the foot of the written policy, the plaintiff explained that the policy was forwarded to his email address. He explained that it must have gone straight into his “junk” mailbox, so he did not see it.

15. I shall set out firstly the hearing and decision in the Small Claims Tribunal, secondly the hearing and decision of the Judicial Registrar in the District Court and finally the hearing and appeal in this Court.

The hearing in the Small Claims Tribunal

16. On 23 November 2020, the hearing took place before the Assessor. Mr Conomos of Counsel together with Mr Christou, a solicitor, appeared for the plaintiff. Ms Parker solicitor appeared for the defendant. The plaintiff relied upon his statement. The defendant relied on a previous statement made by the plaintiff, the statements of Timothy Dean, Karen Russell and Charles Swaints (T7.44-50). The plaintiff relied upon an amended statement of claim and the defendant upon an amended defence (T4.35-45).

17. During the hearing Mr Conomos submitted: (T5.17-36)

“Might I say this to your Honour, it seems to me as I perceive it that the issue is based upon the transcription by Ms Russell of an alleged telephone conversation on 2 November 2018 which resulted in the policy issuing for noon on 3 November 2018. The accident happened on 2 March 2019 and the question is as to whether or not in the circumstances those answers which were allegedly given are of such gravity that in fact it would've entitled the defendant to refuse insurance. The provisions of the Insurance Contracts Act that are relied upon are a total bar based on five previous accidents not notified.

It's not a case of there would've been a higher premium paid as we sometimes find, and I hope I'm being fair to the defendant as well when I say that it's a total bar based on those answers and the plaintiff, because he was acting for himself, and Mr Christou has done his level best to help him and I've come in to help him as well, didn't put that in issue as to the answers in quite the form When I spoke to him briefly this morning, he said that the gentleman who questioned him by phone had an accent, he had an accent, and it will be that situation It's not so much the questions because it's there, it's a living record, but more as to whether or not in the circumstances he intended to deceive in some way because it is a deception case in reality.”

The Assessors decision

18. At T12.43 the Assessor records:

Now, the leadup to the questions in relation to claim is at p 6, it starts at cl 20 of the transcript. The plaintiff is asked some questions, the operator says:

"Very good, now we've got same claims questions. I will just play that out to you So I need to let you know that the next five questions will relate to all drivers and all cars quoted today. Please answer these questions accurately as this may affect your premium or cover. No worries. If you can give us a clear yes or no, any doubts we'll come back to it. okay?"

And the plaintiff says, "Okay no problem”. Then the recorded voice [of Ms Russell] goes on:

"In the last three years, have you or any drivers you've nominated made a motor insurance claim and/or had any incident regardless of who was at fault?”

The plaintiff doesn't answer that question. It is repeated and then the plaintiff says, "No." The recording then says:

"In the last five years have you or any other drivers of this car had any criminal convictions or been convicted for any drug or alcohol related offences?" The plaintiff says, "No." "Have you or any drivers ever had a claim declined for fraud or dishonesty'" "No." "Question of bankruptcy." "No."

Then the operator comes back on. “Thank you Parviz," and she draws his attention to the first question. "I think you did not answer the first question. So," and then the applicant says, "No, I told you that I have to wait to you because that time I heard some noise and I'm not familiar with that. Yeah, but all those questions are no, you know," and he says this in a joking voice as if he is taking, in my view_, the operator back to earlier questions where he did not understand but he is quite clear, "Yeah but all those answers are no, you know." The operator says, "Okay so your claims also is a no?'" and the plaintiff says, "Yeah I thought you were going to come back to me and I tell you because you explained to me the automated, you know, answer. Anyway, yeah, all questions are no."

19. The Assessor continues at T14.5-23:

“In relation to this matter I would be satisfied that the plaintiff, in applying for the policy, did not tell the truth to the first defendant. In my view, the questions are clearly asked; the question about whether you have made any claims in the last three years is asked twice by the recording. The answer is confirmed by the operator. The fact that the plaintiff has said no claims is confirmed in a document that is sent to him on the same day and he is clearly aware, in my view, of his duty to tell the truth and to provide the defendant with relevant information. That is, contained in the duty of disclosure is noted, in the letters that are sent to him, a copy of the brochure and the covering tetter. Additionally, all throughout this interview are explanations by the operator about, "We need to know these things because it might affect a premium." So I say the plaintiff was on notice.

The defendant in my view is within its rights to refuse to pay on the claim on the basis that there has been a misrepresentation and a significant non-disclosure by the plaintiff and pursuant to s 60(3) of the Insurance Contracts Act the defendant is within its rights to refuse to pay the claim and to cancel the policy. I am entering verdict and judgment for the defendant.”

20. The Assessor listened to the audio recording of the plaintiff answered questions asked by the claims officer by telephone in relation to the policy. The Assessor also made a finding that the operator confirmed that the plaintiff answered “no” when asked if he had any prior claims.

21. On 23 November 2020, the Local Court assessor entered a verdict and judgment for the defendant.

The appeal to the District Court

22. The plaintiff appealed the decision of the Local Court Assessor to the District Court before the Judicial Registrar.

23. Section 39(2) of the Local Court Act 2007 (NSW) reads:

(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.

24. The appeal to the District Court was available pursuant to s 39 (2) of the Local Court Act 2007 (NSW), but only on the grounds of lack of jurisdiction or denial of procedural fairness. The plaintiff did not assert that the Assessor of the Local Court lacked jurisdiction. The plaintiff relied on the ground of a denial of procedural fairness.

25. In Kioa v West (1985) 159 CLR 550, Mason J stated at 582:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”

26. Natural justice is also known as procedural fairness.

27. In the plaintiff’s submissions to the Judicial Registrar, he submitted that he filed his appeal in time. The time for filing the summons commencing an appeal of the Assessor's orders was within 28 days of the material date, that is, by 21 December 2020. On 15 December 2020, the plaintiff filed a summons Commencing an appeal in the Local Court, not the District Court. On 12 February 2021 the summons was returned to the plaintiff on the basis that a credit card payment was declined in respect of the filing fee. On 22 February 2021, the plaintiff filed the summons commencing an appeal in the District Court

28. On 15 June 2021, the plaintiff’s application for leave to extend time to lodge the Appeal and the defendant's application to strike out the Appeal were listed for hearing together before the judicial Registrar in the District Court.

The hearing before the Judicial Registrar on 15 June 2021

29. The plaintiff was self-represented at the hearing, Mr Gruzman, Counsel for the defendant, informed the Judicial Registrar that he did not cavil with the plaintiff’s explanation for delay but stated that the Court has to look at the merits of the appeal (T6.7-9).

30. The Registrar then explained to the plaintiff (T6.24-32):

“That's where you - look, so what's happening, Mr Zadeh, very quickly, is that when you lodged something out of time the decision whether or not to extend time for you to lodge depends on a number of things. First of all, your explanation. Secondly - the delay itself, the explanation, but then also a question which I'll variously describe as the interests of justice, which is bearing in mind the issues at stake for the parties, the advantages and disadvantages that would accrue to each party as to whether or not the appeal should be allowed to continue. That may involve a review of the merits of the case.”

The decision of the Judicial Registrar

31. At the outset the Registrar said that he accepted the plaintiff’s explanation for delay. The Registrar believed that the plaintiff had acted promptly and the delay did not otherwise raise any prejudice. That left the issue of whether the plaintiff could demonstrate that he was denied procedural fairness. He considered that appeal ground (a) and (b) were not available to be brought. That left appeal grounds (c) and (d).

32. In relation to grounds (c) and (d) the Registrar stated (Ex 1, 154-175):

“[T]he question that arsies that can be dealt with in exercising the discretion here is the merits of the application which I otherwise would have seen as available to be brought independently of the leave question.

…

I can accept entirely that Mr Zadeh in his presentation today, in his submissions and perhaps in some context that is provided in some aspects of the transcript that he has perceived his representation to be inadequate by Mr Conomos and Mr Christou at the appeal.

However, there is nothing in the transcript and the affidavit of Ms Parker that I have read that indicates that the assessor in the Local Court was called upon to deal with this issue. Mr Conomos in all of the transcripts I can see has attended the hearing, entered his appearance and it has been accepted by the Court in the absence of any information that was suggested to the assessor in the evidence and in the transcript that Mr Conomos was not Mr Zadeh's legal representative, was not acting in accordance with instructions. Just in the simple absence of any presence of that in the transcript, does not make those grounds available.

Those grounds I would otherwise notice are available to Mr Zadeh in a cause of action against Mr Conomos and Mr Christou if he says that they were misrepresenting or had not correctly prepared his case or had not otherwise addressed what he had provided instructions for. Moving on to para 3, the defendant misled the assessor by providing too much paperwork and otherwise the defendants were guiding and controlling how the payment was to be reviewed.

I will just confirm the submissions made to me by the defendants were accurate and correct. It is a common situation in this Court that large amounts of material, sometimes too much, is put before a Court and a decision maker. But if an advocate or a solicitor or a barrister can act with some precision and accuracy following that and identifying and distilling before the Court the key documents, the key issues and the key evidence, then that is a perfectly normal and acceptable process.

That also feeds into the discussion I had with the parties about the concern, there is an example that Mr Zadeh's statements about the conversation which was the key issue in the Local Court which is whether or not he correctly answered questions about prior disclosure of claims made on the insurance policy. That statement was available to the assessor. I can see in the transcript that submissions were made to the assessor about that point by Mr Conomos and the assessor took that statement with other statements. I do not think I need to go to the specific transcript to identify it. It is very clearly there that the assessor had taken extracts of the essential issues-

PLAINTIFF: ..(Not transcribable).. Mr Conomos about that, your Honour.

REGISTRAR: Mr Zadeh, I am not taking any more submissions-

PLAINTIFF: ..(Not transcribable).. about the questions.

REGISTRAR: Mr Zadeh, I do not take any more submissions at this point. I am giving you a decision, okay?

But all that process of culling and extracting the relevant material, identifying it as relevant and salient to the assessor's decision-making process was done properly and the assessor then reviewed that evidence, reviewed the telephone conversation and then came forward to the parties and made her determination. The net result may be one that Mr Zadeh as the appellant disagrees with but that is not a denial of procedural fairness.

Lastly, point 4 seems to be somewhat an understandable point but not of any significant weight. I can understand that a complaint could be made that after a decision is made, reference is made to prior decision makers in the AFCA organisation. But it seems to me that none of the assessor's determination was primarily based on that action or that decision by AFCA.

I can understand that if that was the only reason provided, that would be a ground for denial of procedural fairness. But it seems to me that remark at the end by the assessor is something of a context remark rather than being a matter for determination. But in any event, it is in addition to other reasons which are properly provided.

So for these reasons, the leave to file the summon should not be accepted.”

33. On 15 June 2021, the Judicial Registrar refused to grant leave to file the summons out of time and ordered that the summons be dismissed.

Appeal to this Court

34. Section 127 of the District Court Act 1973 (NSW) reads:

127 Right of appeal to Supreme Court

(1)   A party who is dissatisfied with a Judge's or a Judicial Registrar's judgment or order in an action may appeal to the Supreme Court.

(2)   The following appeals lie only by leave of the Supreme Court--

(a) an appeal from an interlocutory judgment or order,

(b) an appeal from a judgment or order as to costs only,

(c) an appeal from a final judgment or order, other than an appeal--

(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more,

(d) an appeal from a judgment or order on an application for summary judgment under the rules,

(e) an appeal from an order made with the consent of the parties.

(3) In any other case, an appeal lies as of right.

35. In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Be Financial”), Basten JA (with whom Tobias AJA agreed) explained the principles governing leave to appeal at [32]:

“[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]:

"It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute."”

36. On 9 July 2021 the plaintiff filed a summons commencing an appeal in this Court. He relied on his supporting affidavit filed 26 August 2021.

37. Shortly stated, plaintiff’s grounds of appeal to this Court are:

1. The Judicial Registrar failed to pay attention to his case and materials;

2. The Judicial Registrar did not let him clarify his case;

3. The Judicial Registrar did not pay attention to the fact that the defendant’s defence was filed 2 days out of time in the Small claims tribunal.

[See appeal ground (g) in the summons]

The notice of motion filed 5 October 2021 in this Court

38. On 5 October 2021, the plaintiff filed his notice of motion in this Court seeking to obtain a copy of this product disclosure voice recording that was in existence. On 3 November 2021, at the hearing before Dhanji J, the defendant’s Counsel, confirmed that there is no record of the automated recording.

The plaintiff’s submissions of the hearing before me

39. The plaintiff basically repeated the submissions that he had made in the Local Court Small Claims Tribunal and the District Court. He said that no policy was sent to his home address. If it had, he would have been able to check the details of his policy. Woolworths have indicated that they only sent a copy of the policy to his email and, at the hearing, the plaintiff conceded that it may have gone into his ‘Junk’ mailbox.

40. A complaint raised by the plaintiff in this Court is that the defendant filed the defence out of time in the Local Court Small Claims Division. The plaintiff submits that the defence should have been rejected by the judicial system and a winning verdict should have been issued to him. On 1 July 2020, the plaintiff filed an amended statement of claim (“ASC”) in accordance with the Court’s directions. The defence should be within 14 days of the filing the ASC not beyond that time limit. At the hearing in the Local Court, the defendant filed the defence on 17 July 2020 which did not meet the assigned requirements. The defendant admitted that it lodged its defence in the Local Court 2 days out of time.

Competency

41. The defendant’s primary submission is that there is no appeal available from the decision of the District Court Judicial Registrar because these proceedings are not an "action" for the purposes of s 4, Pt 3 and s 127 of the District Court Act and is precluded by virtue of s 127(1)(a). The defendant referred to Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 282 (“Muldoon”) and Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 (“Wende”). The defendant submits that the appeal is incompetent.

The plaintiff’s submissions in this Court

42. The plaintiff submitted that the appeal to this Court is competent as he presents legitimate grounds of appeal on the basis of a lack of procedural fairness. The plaintiff further submitted that the Court should do justice and not follow the regulations.

The relevant legislative provisions

43. The relevant legislative provisions are ss 44 and 127 of the District Court Act. Section 127 of the District Court Act has been reproduced earlier in this Judgment. Section 44 reads:

44 Actions

(1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions--

(a) any action of a kind--

(i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and

(ii) in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise,

other than an action referred to in paragraph (d) or (e),

(c) any action brought to recover an amount not exceeding $20,000, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will,

(c1) subject to paragraph (c), any action arising out of a commercial transaction in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise,

(d) any motor accident claim, irrespective of the amount claimed,

(d1) any work injury damages claim, irrespective of the amount claimed,

(d2) any substituted proceedings within the meaning of Part 3A of the Civil and Administrative Tribunal Act 2013 , so long as the amount (if any) claimed does not exceed the Court's jurisdictional limit,

(d3) without limiting paragraphs (d) and (d1), any substituted proceedings within the meaning of Division 3.2 of the Personal Injury Commission Act 2020 irrespective of the amount claimed,

(e) any proceedings transferred to the Court under section 146 (1) of the Civil Procedure Act 2005 , irrespective of the amount (if any) claimed in those proceedings.

(2) Where the amount claimed in an action includes interest (being interest which the Court could, under section 100 (1) of the Civil Procedure Act 2005 , order to be included in the amount for which it could give judgment), that interest shall be disregarded for the purposes of--

(a) determining whether the maximum amount for which the action is authorised by this Act to be brought has been exceeded or not, and

(b) determining whether or not the Court has jurisdiction to hear and dispose of the action.

44. The defendant referred to Muldoon, and Wende. In Muldoon, Campbell JA (with whom Macfarlan and Young JJA agreed) discussed the meaning of “action at [26]-[37]:

“[26]   The definition of "action" in DC Act is poorly drafted, in so far as it itself contains the word "action" . " Action " is a word whose meaning can change depending on the context in which it is used. For example, though it has been said that its "normal and generally accepted sense" is "proceedings in which a verdict is the appropriate termination" (Radley v Nominal Defendant [1974] 1 NSWLR 135 at 139 per Hardie JA), it has also been recognised that "' action', according to its ordinary meaning, may have a wide scope . " (Cook v Head at 185 per Mahoney JA), and the statutory stay of "an action commenced by a person who subsequently becomes a bankrupt" , pursuant to section 66(2) Bankruptcy Act 1966 (Cth) has been held to extend to litigation seeking prerogative relief (Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45).

[27]   Consideration of the context in which it is used in the DC Act shows that the meaning of "action" in that Act does not extend to an appeal under section 67 CTTT Act .

[28]   One indication that DC Act uses "action" in a narrow sense is that the various types of proceeding that the definition of "action" in section 4(1) DC Act excludes include many types of litigation that could in other contexts be referred to as an "action" , in the ordinary sense of the term. Another is that the creation of various specific rights of appeal by sections 139, 142N and 201 would be unnecessary if "action" had a broad meaning.

[29]   A further indication arises from the structure of the DC Act, and the headings to the various constituent Parts in to which it is subdivided.

[30]   Part 3 DC Act is headed "The civil jurisdiction of the Court"  Division 1 of Part 3 is of no present relevance (it makes provision for the appointment of various officers to the court, and for regulating the places at which the Court sits).

[31]   Division 2 of Part 3 DC Act runs from section 44 to section 51 inclusive. It is headed "Actions: jurisdiction" . Subdivision 1 of that Division runs from section 44 to 48 and is headed "General jurisdiction in relation to actions" . The Interpretation Act 1987 provides, in section 35(1):

"Headings to provisions of an Act or instrument, being headings to:

(a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or

(b) Schedules to the Act or instrument,

shall be taken to be part of the Act or instrument."

[32]   Thus, the headings of Part 3, Division 2 and Subdivision 1 of Division 2 DC Act all assist in concluding that an "action" , within the meaning of the DC Act , is the type of litigation in relation to which jurisdiction arises under Part 3 Division 2 DC Act .

[33] Section 44(1) provides:

"Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions:

(a) any action of a kind:

(i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court, and

(ii) in which the amount (if any) claimed does not exceed the Court's jurisdictional limit, whether on a balance of account or after an admitted set-off or otherwise,

other than an action referred to in paragraph (d) or (e),

(b) (Repealed)

(c) any action brought to recover an amount not exceeding $20,000, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will,

(d) any motor accident claim, irrespective of the amount claimed,

(d1) any work injury damages claim, irrespective of the amount claimed,

(e) any proceedings transferred to the Court under section 146(1) of the Civil Procedure Act 2005 , irrespective of the amount (if any) claimed in those proceedings."

[34]   Section 45 has been repealed. Section 46 confers power on the District Court "in any action" to grant an injunction, and exercise certain incidental powers concerning the granting of an injunction. However, because those powers can only be exercised "in an action" section 46 does not expand the meaning of "action" . Section 47 (conferring extraterritorial jurisdiction) and section 48 (imposing certain limits on jurisdiction) are each dependent upon their subject matter being "an action" , and so cannot expand the meaning of that expression.

[35]   Sections 49 and 50 have been repealed.

[36]   Section 51 expands the jurisdiction of the court in certain circumstances where parties consent, but that section applies only "to an action or cross claim" , and so likewise cannot expand the meaning of "action" .

[37] Section 44 does not result in an appeal to the District Court under section 67 CTTT Act being an "action" within the meaning of DC Act, because an appeal under section 67 is not an action which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court. That is because there is nothing in the CTTT Act , or within the legislation regulating the Supreme Court, which enables such an appeal to be brought to the Supreme Court at all. Thus, such an appeal does not fall within section 44(1)(a). Nor, manifestly, does it fall within any of section 44(1)(c)-(e). In those circumstances, it is not an "action" within the meaning of section 127 DC Act.”

45. In Wende, the Court of Appeal stated at [20] that the right of appeal conferred by s 127 of the District Court Act 1973 (NSW) is limited to a judgment or order in “an action” in the Court. As the Court has held in a series of decisions, that phrase does not include statutory appeals from other jurisdictions.

46. In Wang v Botany View Hotel (No 4) [2019] NSWSC 1323 (“Wang”), a purported appeal by Mr Wang was dismissed by Judicial Registrar Howard of the District Court because there was no right of appeal available from the General Division of the Local Court to the District Court. An appeal from that decision to this Court was then summarily dismissed by Adamson J on the basis that Mr Wang had no right of appeal from the District Court order to the Supreme Court because it was not made “in an action”, but on a purported statutory appeal (see s 127 of the District Court Act and Muldoon).

Resolution

47. While the plaintiff had a limited right of Appeal from the Local Court Small Claims Tribunal by virtue of s 39(2) of the Local Court Act to the District Court he does not have a right of appeal to this Court. Section 127(1) states that a party who is dissatisfied by a Judicial Registrar’s Judgment or order in an action may appeal to the Supreme Court. The appeal from an appeal to the District Court is not an action in the Supreme Court. Therefore, the appeal is incompetent.

48. If I am wrong on this issue, I shall consider the defendant’s further submissions.

The defendant’s further submissions in this Court

49. The defendant further submitted that the appeal is incompetent on two other bases, firstly, any such proceedings would require leave and no leave has been sought; and secondly, the Judicial Registrar's decision was not based upon incorrect principle or plainly unjust.

50. In the event this Court finds that there is a right of appeal from the District Court to the Supreme Court the defendant says that the appeal may only be brought by leave of the Supreme Court because the amount in issue is less than $100,000.00: see s 127(c) of the District Court Act.

51. The summons does not seek an order that the Court grant leave to appeal and does not set out the reasons why leave should be given, as required by UCPR 50.12(4)(b). The plaintiff would also need to seek an extension of time for filing a summons seeking leave to appeal and provide reasons why time to apply for leave to appeal should be extended: see UCPR 50.12.

52. The defendant submitted that given the requirement for leave has been triggered by the small amount of money involved, the plaintiff would need to address matters such as what the issues of principle are, what matters of public importance the appeal raises and what obvious injustice there has been.

53. Further, given the restricted rights of appeal from an order of the Small Claims division of the Local Court, the plaintiff would need to demonstrate that there has been more than a merely arguable injustice and that the appeal has merit despite the limited grounds of appeal available: see Be Financial at [32].

54. A short extension of time will not be given for an appeal that is hopeless because to do so would be futile: see Mazelow v MacDonald Earth Moving Co Pty Ltd [2001] QCA 87. As such, any application for an extension of time to file a summons seeking leave to appeal should be refused as the appeal is futile.

55. The defendant submits that the Judicial Registrar was entitled to form a view that the appeal was futile due to the limited grounds of appeal permitted by s 39(2) of the Local Court Act 2007 (NSW), and the plaintiff's reliance upon an alleged denial of procedural fairness.

The plaintiff’s submissions

56. The plaintiff outlined the complaints he made to the Assessor in the small claims tribunal and to the Judicial Registrar in the District Court. I have referred to them in detail and will not repeat them here. At the hearing, the plaintiff again submitted that he should not suffer from this malfunction that the Local Court machine could not get the fee from his account although sufficient funds were available. He submitted that the Local Court attempted to get the money three times within two minutes. The plaintiff submitted that this might be due to a system or connection error on those specific moments. The Court did not try to get the fee another hour or another day. The Local Court sent documents back to his address. The plaintiff submitted that he did his filing on time and error was from the Court’s connection system. These reasons can be regarded as the plaintiff’s reasons for seeking an extension of time to file his appeal in the District Court.

57. The plaintiff also submitted that the Judicial Registrar did not pay attention to the fact that the defendant’s defence was filed 2 days late in the Small Claims Division Tribunal. He submitted that the Judicial Registrar’s decision to dismiss the whole of the proceedings was unjust.

Resolution

58. The plaintiff has failed to appreciate that the Judicial Registrar accepted the his explanation for delay and that there was no prejudice to the defendant caused by the delay. The Judicial Registrar dismissed the application for leave to appeal on the basis that it did not satisfy the test set out in Be Financial at [32].

59. In this Court, the plaintiff filed his summons within 28 days. Therefore, an extension of time to file the summons is not required. However, on an application for leave to appeal, the plaintiff is required to set out the grounds upon which leave to appeal should be granted. As was the case before the Judicial Registrar, the plaintiff is required to demonstrate to this Court that there was something more than arguably wrong in the decision that the Judicial Registrar arrived at: see Be Financial.

60. I take into account that the sum in dispute is a relevantly modest amount so it is also important that there is early finality in the determination of this litigation as the costs involved have already swamped the monetary sum involved in the dispute.

61. In the Small Claims Tribunal, the plaintiff was represented by Senior Counsel and a solicitor. He was aware of the case he had meet and was given the opportunity to rely on evidence and submissions made by Counsel. The fact that the Assessor decided that the plaintiff had not disclosed that he had prior claims in the insurance policy with Hollards (they were admitted by his Counsel). Pursuant to s 60(3) Insurance Contract Act 1984 (Cth), in these circumstances the insurance company is entitled to refuse to indemnify him.

58. The plaintiff raised in this Court that the defendant in the Small Claims Tribunal filed its defence, some 2 days late. This does not appear to have been raised before the Assessor or the Judicial Registrar. In any event, the filing of the defence 2 days late, in my view did not cause any injustice to the plaintiff. Rather the case was heard in the Small Claims Tribunal on its merits.

59. The Judicial Registrar had to determine whether the Small Claims Tribunal Member denied the plaintiff procedural fairness. He decided that the Assessor listened to the recording and paid attention to the evidence. The Judicial Registrar also formed the view that none of the Assessor’s determination was primarily based in the action or decision by the AFCA.

60. It is my view that the plaintiff has not demonstrated that there was something more than arguable wrong in the Judicial Registrar’s decision given extempore on 15 June 2021. In these circumstances, the plaintiff’s application for leave to appeal is refused.

The defendant’s final submissions

65. In the event that this Court finds that there is a right of appeal pursuant to s 127 of the District Court Act (reproduced earlier in this judgment), and that any application for leave to appeal ought to be granted, the defendant submits that the appeal should be dismissed as the plaintiff has failed to establish a relevant error by the Registrar.

66. The judicial Registrar's decision refusing an extension of time was discretionary. In an appeal against a discretionary order, the plaintiff must establish an error by the Judicial Registrar having acted upon a wrong principle, given weight to irrelevant matters, not given weight to relevant matters or made a mistake as to the facts or demonstrate that the order is so unreasonable or plainly unjust that the appellate court should interfere, see House v R (1936) 55 CLR 499 at 505. The plaintiff has not demonstrated any relevant error by the judicial Registrar in refusing to extend the time for the plaintiff to file his appeal.

67. Grounds (a) and (b) of the plaintiff’s appeal alleges a denial of procedural fairness, in that the Assessor failed, at worst, to consider the plaintiff's statement. In respect to the plaintiff's evidence before the Local Court, the Assessor reviewed the plaintiff's evidence as contained in the transcript and subsequently found against the plaintiff (Parker Aff 28 September 2021, p 50-52). There is no evidence contrary to the transcript that the Assessor failed to consider any of the plaintiff's evidence and in any event, there is no appeal right based upon the merits of the Assessor's decision. The Judicial Registrar found that the statement was available to the Assessor and submissions were made to the Assessor in respect of the statement (Parker Aff 28 September 2021, p 33). The Judicial Registrar found that the plaintiff was not denied procedural fairness (Parker Aff sworn 2 November 2021, p 33). As such, the defendant submitted that this is not a denial of procedural fairness.

68. In response to ground (c), the transcript only refers to AFCA in considering whether the plaintiff was unreasonable in rejecting an Calderbank offer made by the defendant. There is no evidence contrary to the transcript that the Assessor failed to make an independent decision. Relevantly, the Judicial Registrar confirmed there was no evidence to the contrary and found that none of the Assessor's determination was primarily based on a decision made by AFCA (Parker Aff 28 September 2021, p 33-34). The defendant submitted that this is not a denial of procedural fairness.

69. Grounds (d) and (e) do not disclose any denial of procedural fairness.

70. In relation to Ground (f), the defendant submitted that in the Local Court proceedings, the Court's direction was to give all evidence by way of a written statement, subject to any application being made prior to the hearing for cross-examination and/or oral evidence. No such application was made prior to the hearing. The plaintiff's application, on the day of the hearing, to give additional evidence orally was refused after the Assessor heard submissions from both parties (Parker Aff 2 November 2021, p 53). There was no denial of procedural fairness in the Assessor refusing the application as it was within her discretion to do so.

Resolution

71. I have read the defendant’s submissions and taken the plaintiff’s earlier submissions into account, the contents of which I have set out earlier in this judgment. I have come to the conclusion that the plaintiff was not denied procedural fairness. It was not unjust. The decision of the Judicial Registrar was correct. The plaintiff’s appeal is unsuccessful and is dismissed.

Result

72. The result is that summons filed 9 July 2021 seeking to appeal the decision of the Judicial Registrar of the District Court is refused. The Appeal is dismissed.

Costs

The defendant’s submissions

73. The defendant was served with the sealed summons commencing an appeal on 16 July 2021. The motion as to competency was filed on 2 November 2021 and served on 3 November 2021, after several warnings were given to the plaintiff since at least 14 October 2021. There is a discretion for this Court to make an order for costs in favour of the Defendant in the event the appeal is dismissed as incompetent: see UCPR 50.16A(2).

74. A purpose for the prompt filing of the motion within 14 days is to minimise the inconvenience and cost to the Court and to the putative appellant: see AB v State of New South Wales [2014] NSWCA 243. The plaintiff has not incurred unnecessary expense due the late filing and service of the motion. The court has not been put to additional inconvenience as the hearing and directions hearing of the motion and summons were listed concurrently.

75. The Court ought to make an order for costs in favour of the defendant in order to do justice between the parties

Resolution

76. Costs are discretionary. Costs generally follow the event. The plaintiff is to pay the defendants costs of the proceedings including the notice of motion filed 5 October 2021 and 2 November 2021.

The Court orders:

1. The summons filed 9 July 2021 is dismissed.

2. The plaintiff is to pay the defendants costs of the proceedings including the notice of motion filed 5 October 2021 and 2 November 2021.

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Decision last updated: 29 March 2022