A & P Parkes Constructions v Brad Horn

THE SUPREME COURT OF NEW SOUTH WALES SYDNEY COMMON LAW DIVISION

11447/01 - A & P PARKES CONSTRUCTIONS PTY LTD -V- BRADHORN JUDGMENT

1 HIS HONOUR: This is an appeal by way of summons against a decision of a Magistrate sitting in the Local Court of Toronto in which he gave judgment for $17,392.04 in favour of the plaintiff in the action before him. 2 That action had been instituted by Bradhorn, trading as Bradhorn Concreting and was against A & P Parkes Constructions Pty Ltd. The amount of the award was made up of a claim of $10,137.50, court costs of $345, professional costs of $3767.75, witnesses' expenses of $1000 and interest of $2141.79. 3 The judgement in favour of the plaintiff in that matter was as a result of a hearing at which the defendant in those proceedings was not represented. That arose in circumstances in which on the day of the hearing the agent for the solicitor for the defendant sought an adjournment. That adjournment was refused. As a consequence of that refusal the agent withdrew from the proceedings before the Magistrate, who then heard the matter and entered the judgment to which I have referred. 4 In the summons presently before the court there are nine grounds of appeal. However the case really involves consideration as to whether or not in refusing the adjournment the Magistrate denied the defendant in the proceedings before him natural justice. It is common ground between the parties before this court that if the Magistrate relevantly erred in refusing the adjournment then the judgment cannot stand and the matter would have to be remitted to the Local Court. If, however, the Magistrate did not relevantly err in refusing the adjournment, then his decision in relation to the entry of judgment should stand. 5 The claim by Bradhorn arises out of work done and materials provided in 1998. The action was commenced in the Local Court claiming the value of the work done and material provided. A date for call-over was notified to the parties. 6 The matter was the subject of a notice of listing on 26 October 2000 and of a call-over notice on 22 December 2000, which nominated the listing date in the matter as 17 January 2001. That was a date on which directions would normally have been given in relation to the preparation of the case and a date fixed for hearing. However on that date there was no appearance on behalf of the defendant in the proceedings and as a consequence the defence of the defendant was struck out. 7 However, it appears that the non-appearance occurred because of a failure on the part of the agent for the solicitor for the defendant to record the date and to appear. As a consequence of a notice of motion the order of 17 January 2001 was vacated and the defence was reinstated. 8 On that same date, a date for hearing was fixed for 27 April 2001 and notice of such hearing date was given to the parties formally on 1 February 2001. 9 It appears that at the same time as the hearing date was fixed an order was made by the Magistrate that the parties to the proceedings in that court file statements of their evidence by 13 April 2001. As is clear from the material before the court, the plaintiff in the proceedings before the Local Court complied with that order; the defendant, who is the plaintiff in these proceedings, did not. It is also clear that no application was made on behalf of the defendant before the Local Court for an extension of time within which to file the statements or take other steps. It is also clear that no summons or subpoena for records, of either the telephone carrier, Telstra, or other entities was sought. 10 The defence filed on behalf of the defendant in the proceedings before the Magistrate was most general. In the absence of particularisation and due to the non-compliance by that defendant with the Magistrate's order for the filing of statements, it is likely that there could have been prolongation of the proceedings before the Magistrate had they proceeded on the date fixed for their hearing. 11 However, the solicitors for the defendant in the Local Court advised on 24 March 2001 that they would be seeking an adjournment. The basis of that adjournment was the prospect of a change in counsel. Counsel briefed in the matter, it was said, would not be available in Toronto on the date fixed for hearing but would have been available to appear on that date in Sydney had the matter been heard in Sydney. Of course it was never going to be heard in Sydney. It was filed in the Toronto court, was listed for hearing in Toronto. Quite understandably, the solicitors for the plaintiff indicated that they would consent not to an adjournment. 12 The first reason for the proposed adjournment having been rejected, the solicitor then advised that they would be seeking an adjournment because of "circumstances beyond (their) client's control in relation to the gathering of evidence". That basis for adjournment was not advanced until 24 April 2001. It was rejected on behalf of the plaintiff. It was further pressed again on the very same day, but this time on the basis that there had been difficulties experienced "in obtaining certain records from the owners of the premises where the work was carried out, including telephone records". How the owners of the premises, unless they themselves were Telstra (and that does not emerge from the evidence), could be responsible for the non-obtaining of telephone records is a mystery unsolved by the evidence and unexplained from the bar table. 13 The matter came before the Magistrate and an application was made for adjournment. After an initial adverse response the solicitor for the defendant in those proceedings argued the matter at some length and the Magistrate having considered that argument, delivered a short judgment. In it he recited the following:

(1) That the debt claimed had been incurred in November 1998;

(2) That the defence filed on behalf of the defendant was in the most general and, it would seem from his comments about it, unsatisfactory terms;

(3) That the history of the matter was one of non-compliance including a failure on the part of the defendant to comply with the directions given in relation to the filing of evidence. 14 In proposing the matter for determination the Magistrate balanced the question of the respective prejudices. He balanced, inter alia, the prejudice to the plaintiff from further delay against the failures on the part of the defendant in those proceedings to comply with the court's directions or do anything to bring the matter to a state of hearing. From his judgment it is to be gathered that he concluded that there would be greater prejudice to the plaintiff by being further delayed in the recovery of the money which it claimed to be owed. 15 The decision to grant or refuse an adjournment involves the exercise of a discretion and in order for a court on an appeal such as this to interfere with such a discretion, the appeal being limited to matters of law, (Pace v. Read [2000] NSWSC 823; 18 August 2000,unreported; Kojima v Australian Chinese Newspapers [2000] NSWSC 1153; 7 December 2000, unreported), there must be a recognised error of law. 16 In House v. The King (1936) 55 CLR 499 it was said: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If a judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials to do so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." (supra at 505 per Dixon, Evatt and McTiernan JJ.) 17 In argument in the case before this court counsel for A & P Parkes Constructions Pty Ltd has drawn attention to Connelly v. Department of Local Government & Ors (1985) 11 IR 362. In that case the Court of Appeal had to consider a decision of the Government and Related Employees Appeal Tribunal and the refusal by that tribunal of an application for an adjournment. In dealing with the principles to be applied to such a decision Hope JA said that: "In order that the decision of (the) chairman, refusing to grant (an) adjournment be regarded as a denial of natural justice and error of law, it must be shown that it was a decision to which he could not reasonably have come." (supra at 366) 18 In the present case the Magistrate considered, inter alia, the failure of the defendant in the proceedings before him to comply with the directions of the court in relation to the filing of statements of evidence. In so doing he did not, in my opinion, fall into error. Indeed in the very case quoted on behalf of the plaintiff in the present matter, namely Queensland v. J L Holdings Pty Ltd (1996-97) 189 CLR 146 it is clear that failure to comply with directions of the court in relation to the management of a case is a relevant factor but not necessarily determinative. That undoubtedly is because, as was pointed out by Dawson, Gaudron and McHugh JJ (supra at 153): "The object of the courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases."

19 What occurred before the Magistrate was not a mistake in the conduct of the case. It was a deliberate action. True it is that part of it may have been related to the fact that certain telephone records had not been obtained but it cannot be that the whole of the evidence that the defendant in those proceedings was going to call consisted of telephone records. They would, at best, have been supplementary to other testimony. But none of that was put on. Secondly, there was no evidence before the Magistrate, and it was conceded before this court, that subpoenas or summonses had been used to obtain relevant documentation. Furthermore, the matter raised before the Magistrate related solely to what were described as the Telstra records. In these circumstances it was open to the Magistrate to treat as very important the total failure of the defendant in the proceedings before him to put any evidence before the court either in relation to the action itself or in relation to the circumstances in which (a) evidence of any kind had not been filed; and (b) the steps taken, if any, to obtain the relevant telephone records. 20 There was in my opinion ample material before the Magistrate to justify his decision. His decision was not one of which it could be said that it was a decision to which a Magistrate could not reasonably have come. 21 That being so, I am of the opinion that no error of law is made out in relation to the decision of the Magistrate. Indeed there are strong reasons for thinking that many courts faced with the situation that the Magistrate in question was faced with, would have come to precisely the same conclusion. This appeal must fail. 22 ORDER: Summons dismissed with costs.

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