Cassar v Hans Pet Constructions Pty Ltd

(vi) The parties be granted liberty to apply for any further order consequential upon the foregoing reasons for judgment, including any different order as to costs, by application to my Associate by 4 February 2009.

CATCHWORDS : PRACTICE AND PROCEDURE - appeal from judgment striking out defence - exercise of discretion not to be subject to interference unless error of principle - failure of party to comply with directions as to filing evidence did not allow striking out of defence - appeal allowed

Civil Procedure Act 2005 LEGISLATION CITED : Local Courts Act 1982 Suitors' Fund Act 1951

Comet Building Services Pty Ltd v Hy-Tec Industries Pty Ltd [2008] NSWSC 11 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Haset Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 CASES CITED : House v R [1936] HCA 40; (1936) 55 CLR 499 Maxwell v Keun [1928] 1 KB 645 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 Sullivan v Department of Transport (1978) 20 ALR 323

Kay Isabel Cassar (First Plaintiff) PARTIES : Frank Savior Cassar (Second Plaintiff) Hans Pet Constructions Pty Ltd (Defendant)

COUNSEL : H Altan (Plaintiffs) D Talintyre (Defendant)

SOLICITORS : Eddelbuttel Law (Plaintiffs) Moloney Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13795/2008 Kay Isabel Cassar & Anor v Hans Pet Constructions Pty Ltd

JUDGMENT 1 HIS HONOUR: Hans Pet Constructions Pty Ltd is a builder who sub-contracted to Mr and Mrs Cassar the performance of tiling work. Hans Pet alleges that the workmanship of Mr and Mrs Cassar was a breach of the contract between them and claims damages in the sum of $55,884.74, which, Hans Pet alleges, is the cost of rectifying or replacing the tiles. As may be obvious from the sum involved, the matter came before the Local Court and his Honour Magistrate Heilpern was managing the proceedings. On 22 July 2008, the learned Magistrate struck out the defence and entered judgment in favour of Hans Pet. Mr and Mrs Cassar appeal that decision. Procedural History and Decision of Magistrate 2 The primary facts associated with tiling work are wholly irrelevant to the proceedings that are now before this Court. I do not summarise them in any greater detail than I have already. It is necessary to set out the procedural history before the Local Court and to summarise the decision of the learned Magistrate. 3 It is necessary to bear in the mind the context in which these proceedings occur. Like most matters before the Local Court, these proceedings form part of a huge volume of work with which the Local Court must deal. They were the subject of directions for the filing of evidence. The proceedings were commenced by a statement of claim in the Local Court on 20 November 2007. As earlier stated, the amount claimed was for $55,884.74, being the cost of removing the tiles laid by Mr Cassar and replacing them with new tiles. 4 On 3 January 2008, Mr and Mrs Cassar (the defendants in the proceedings below) filed a defence. That defence, which is in evidence before this Court, denied the existence of a contract to perform tiling sub-contract work, admitted a duty to use reasonable care, skill and diligence if sub-contracting tiling work was performed for Hans Pet, admitted that they offered to undertake tiling sub-contract work, denied the terms of the contract and "admitted" that tiling services "on a labour only basis" were provided and otherwise denied faulty workmanship. Further, the defence claimed contributory negligence, estoppel, failure to mitigate and the defence also put the quantum of damage in issue. As one would expect, Hans Pet bore the onus of proof in the proceedings before the Local Court, at least on the substantive question before the Local Court. 5 On 26 February 2008, the Local Court made the following relevant directions:

(i) The matter was set down for a three-day hearing commencing 28 July 2008;

(ii) The plaintiff was to serve any evidence in chief, including expert reports, by 18 April 2008;

(iii) The defendants were to serve any lay and expert evidence by 30 May 2008;

(iv) Plaintiff to serve any evidence in reply by 20 June 2008;

(v) The matter was listed for review on 1 July 2008. 6 There were further directions made in relation to the further and better particulars. Proceedings in relation to those further and better particulars were heard by a magistrate on 10 April 2008. As a consequence of those proceedings, the directions made on 26 February 2008, as to the timing of filing and service of evidence, in chief, response and reply, was varied such that the timetable concluded by the plaintiff serving evidence in reply on or before 11 July 2008. The review date was vacated and moved to 22 July 2008 (bearing in mind that the matter was still listed, as a special fixture, for hearing on 28 July 2008 for three days). 7 The defendant did not receive the answers to the request for the further and better particulars as directed or in the time directed. There was, as one would expect, correspondence between solicitors for each party. The answer to particulars was provided on 5 June 2008, some seven weeks after the date provided by the court orders. On 16 June 2008, Hans Pet served the remainder of its evidence and indicated that it would not rely on any further evidence. That evidence was due on 23 May 2008. However its expert evidence had been served by 23 May 2008, in accordance with the direction. 8 On 23 June 2008 (one week after receiving the last of the evidence from Hans Pet), solicitors on behalf of Mr and Mrs Cassar wrote to the solicitors for Hans Pet noting the hearing date and making clear that Hans Pet's delay in providing answers to the particulars has caused the situation to arise that the defendants (Mr and Mrs Cassar) were not able to meet the present timetable. The letter sought consent to the matter being re-listed before the Local Court for the purpose of securing a new timetable. The letter also informed Hans Pet that the particulars that had been provided had necessitated further investigation and that the expert who had been engaged by Mr and Mrs Cassar would not be able to provide his report by the date specified in the court's directions. An amended defence was filed, which expanded on the grounds relied upon for mitigation, repleaded the issue of quantum and raised causation. Otherwise, the defence was in or to the same effect. 9 There was an exchange of correspondence and, by 8 July 2008, it became clear that there was no agreement to vacate the hearing dates. On 9 July 2008, the solicitors for Mr and Mrs Cassar advised the court of the difficulties and sought a directions date for the purpose of vacating the hearing dates already set. 10 On 15 July 2008, the legal representatives of Mr and Mrs Cassar rang the Registrar of the Local Court to follow up the letter dated 9 July 2008 and to request a re-listing before 22 July 2008. The evidence before this Court was that the solicitors for Mr and Mrs Cassar were advised that it was likely that the matter would be dealt with on 22 July 2008 at the review date. 11 The matter came before the learned Magistrate on 22 July 2008. There is an exchange between his Honour and the representative of Mr and Mrs Cassar relating to the necessity to file a notice of motion to vacate the hearing date and/or to vary the directions already made. Understandably, his Honour was critical of the defendants for not having abided by the Rules of the Court and the Practice Notes. Further, his Honour was mindful of the fact that, since the filing of the amended defence, the defendants had a month, or so, to file any evidence and had filed none. 12 At page 8 of the transcript of proceedings of 22 July 2008, his Honour delivers judgment in which his Honour:

(a) Refers to the procedural history of the matter;

(b) Refers to the delay by the plaintiff in the provision of further and better particulars;

(c) Refers to the fact that the matter was listed for review before his Honour on that occasion;

(d) Refers to the service of expert evidence by the plaintiffs in March 2007 and the service of some evidence late, that is by 16 June 2008;

(e) Notes that there has been no notice of motion to vacate the hearing dates;

(f) Notes the inappropriateness of "rising", at a review date, and seeking a vacation of hearing dates because of non-compliance by the other party with directions;

(g) Refers to Practice Note 1 of 2001, which is in the following terms:

"Where a hearing date has been allocated, it will not be vacated unless the party seeking to vacate shows cogent and compelling reasons."

(h) Further refers to the fact that the vacation of a hearing date must be by notice of motion supported by affidavit.

(i) Then refers to the overriding provisions of the Civil Procedure Act and the judgment of the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37;

(j) Refers to Practice Note 1 of 2005 and recites it; and then refers particularly to paragraph 7.5 of practice note 1 of 2005 in the following terms:

"The Magistrate at the Review shall ensure that the proceedings are ready for trial and the court's directions have been complied with. If the court's directions have not been complied with, the court may make orders including dismissing the proceedings, striking out a defence or cross-claim, directing a party to pay the whole or part of the costs of another party or making such orders as it considers appropriate."

(k) Refers to other matters relating to s 56 of the Civil Procedure Act ; and

(l) Strikes out the defence and vacates the hearing dates of 28, 29 and 30 July 2008. 13 Counsel appearing for the plaintiff before the learned Magistrate then pointed out that the statement of claim was an unliquidated claim and there was a necessity for an assessment. His Honour did not, notwithstanding the application of Hans Pet, allow the assessment to occur in one of the three days already set down, and allowed sufficient time for Mr and Mrs Cassar to adduce evidence relating to the quantum of damage. The Appeal 14 Mr and Mrs Cassar appeal the judgment of his Honour Magistrate Heilpern. They seek orders quashing the judgment that struck out the defence, and an order that the proceedings "be remitted" to the Local Court to be determined in accordance with law. A number of the matters raised in the grounds of appeal are matters that relate to the exercise of the discretion by the Magistrate. 15 The grounds include a failure to give proper weight to case management and judicial efficiency considerations; giving of insufficient weight to other considerations; failure to give proper weight to the relative prejudice to the parties; failure to give weight to the substantial delay caused by Hans Pet; prejudice caused by the delay in the furnishing of particulars; failure to take into account that the failure to file and serve evidence was the only default by Mr and Mrs Cassar in the proceedings before the Local Court; and failure to take into account an otherwise prima facie good defence. 16 Further, the summons alleges an error of law, in striking out the defence, in circumstances where there is an inconsistency between Practice Note 1 of 2001 and Practice Note 1 of 2005 in the Local Court, the first of which did not require a notice of motion to vacate a hearing, and the second of which did. Further, the summons alleges that there is an error of law, in striking out the defence filed by Mr and Mrs Cassar below, because it was not a necessary or appropriate sanction for their failure to file a notice of motion in support of their vacation of the hearing dates. 17 Lastly, the summons alleges that the learned Magistrate's decision to strike out Mr and Mrs Cassar's defence, and list the matter for hearing on assessment of damage only, constituted a denial of natural justice. Principles to be applied 18 The general principle which applies to a decision not to vacate a hearing date, or to strike out, or to grant an adjournment, each of which is a discretionary ruling, is that such decisions are matters wholly within the discretion of the court or tribunal dealing with the matter. An appeal against such a decision is an appeal against an exercise of discretion and will be subject to interference by an appeal court only on one of the well-known bases dealing with discretionary judgments: House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505. 19 Those bases include an error of law, an error of fact, a failure to take into account a consideration that is required, the consideration of a factor that is irrelevant to the decision-making process, or circumstances which render the exercise of discretion manifestly unreasonable. 20 The error below must be either identifiable or manifest. If identifiable, it must be based upon wrong principle, mistake of fact or law or the failure to take into account all and only relevant matters. It is insufficient, for an appeal court, to interfere with an exercise of discretion, that it would have come to a different view or taken a different course. 21 Most of the grounds relied upon by Mr and Mrs Cassar are grounds that go to the exercise of discretion by the Magistrate. The learned Magistrate, who is extremely experienced, took into account all of the relevant matters about which Mr and Mrs Cassar now complain. Further, he did not take into account any irrelevant matters. While an appellate court, either as presently constituted or otherwise, may have come to a different view as to the balance of justice as between the parties, the learned Magistrate took a view, understandably, that sufficient opportunity had been given to Mr and Mrs Cassar to adduce such evidence as was required, and that the Local Court was not going to grant an indulgence that would allow them to put on evidence at a later time, except in relation to quantum, thereby delaying the proceedings. 22 The principles of non-interference by an appellate court in an issue of practice, and in particular on questions of adjournment and vacation of dates, derives from authority of longstanding: see Maxwell v Keun [1928] 1 KB 645 at 650, 657 and 658; Haset Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841; Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154. 23 As expounded by the High Court in Sali, supra, the principle of non-interference with the exercise of such a discretion has one substantial qualification, namely, that such an indulgence will be granted in circumstances where, if refused, the failure to grant the indulgence would result in a serious injustice to the applicant. In those circumstances, it should only be refused, if that be the only way that justice can be done to another party in the action. 24 Each of the above aspects deal with the question of natural justice. Natural justice is not an immutable set of rules. In any event it does not require a court to continue to grant indulgences to parties who do not comply with its directions. The rules of natural justice require that a court (or tribunal) must ensure that a party is given a reasonable opportunity to prepare and to present its case. But the rules of natural justice do not impose upon a court the impossible task of ensuring that the party, given an opportunity, takes advantage of it: Sullivan v Department of Transport (1978) 20 ALR 323 at 343, Full Court of the Federal Court of Australia, per Deane J, with whom relevantly Fisher J agreed. Application of Principles to this Case 25 None of the grounds of appeal, save as to the question of denial of natural justice, raises issues, which ought to be, and which will be, the subject of interference by this Court. 26 The provisions of the Civil Procedure Act 2005, in particular ss 56-64 thereof, significantly qualify the exercise of discretion in relation to matters involving, on the one hand, "justice" and, on the other hand, "case management". The Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 refers specifically to case management practices in Australian courts and the significant changes that have occurred since the judgment of the High Court in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146. The provisions of s 56 of the Civil Procedure Act are a statutory injunction with which the courts must comply. They apply to all proceedings. 27 Further, as earlier stated, the mere fact that this Court might conclude that it would have exercised the discretion, open to the learned Magistrate, in a manner different from the learned Magistrate, does not allow the Court the capacity to interfere with the judgment. The principles in House v R [1936] HCA 40; (1936) 55 CLR 499 apply and any attack not based upon those principles must fail: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], per Heydon JA; Comet Building Services Pty Ltd v Hy-Tec Industries Pty Ltd [2008] NSWSC 11 at [16], per Campbell J. 28 As earlier stated, the Magistrate has taken into account all relevant matters. He has not taken into account matters that were irrelevant. He has exercised his discretion bearing in mind the statutory injunctions in the Civil Procedure Act 2005. He has, save as to one aspect, exercised a discretion which was available to him and with which this Court should not interfere. The result, again save as to one aspect, is not manifestly unreasonable. 29 Notwithstanding the foregoing, it is fair to say that Hans Pet was significantly late in the provision of essential particulars that were required by the Local Court. Further, some of the evidence that was directed to be served, by Hans Pet, was not served until well after the date ordered by the court. It is understandable that Mr and Mrs Cassar may feel a sense of grievance that their inability, because of the failure to have further and better particulars, to serve their affidavits should be "punished" in a manner more severely than was the delay of Hans Pet that caused it. Notwithstanding the feeling of grievance, each of those matters were matters considered by the learned magistrate and his exercise of discretion was informed by those factors. 30 The one exception to the foregoing is the striking out of the defence. The defence (and the amended defence filed shortly after the provision of the particulars) was filed in good time and filed in accordance with the directions of the Local Court. There was no issue of non-compliance associated with the defence, its filing or serving. The non-compliance of Mr and Mrs Cassar related to the adducing of evidence. 31 The proceedings before the Local Court were proceedings for breach of contract and depended upon faulty work. The proceedings also depended upon the existence of a contract in the terms pleaded. Mr and Mrs Cassar denied the contract in those terms. They denied faulty work and, on the issue of negligence and otherwise, they alleged contributory negligence or contribution. The defendants were, quite properly, within their rights to file a defence and serve no evidence. They could have, albeit dangerously, relied solely on the cross-examination of the witnesses for the plaintiff below. To strike out the defence and grant default judgment, in circumstances where there is a valid defence before the court, is not taking action to ensure compliance with the court's directions. It is going beyond the effect of the court's directions. 32 It would seem that a proper application of the principles, without denying to Mr and Mrs Cassar their ability to present the case that they put before the court, in accordance with the court's directions, would be confined to refusing to vacate the hearing dates, refusing to allow an indulgence for the filing of evidence by Mr and Mrs Cassar, and requiring Mr and Mrs Cassar to proceed with the hearing in the absence of their evidence. 33 Mr and Mrs Cassar have filed a defence. They were entitled to file that defence, without adducing any evidence. The failure to adduce evidence has been "punished" by striking out the defence. The defence has been filed in accordance with the court's directions. 34 In my view, Mr and Mrs Cassar have been denied natural justice, because they have been denied the opportunity of presenting their case based upon the defence filed and served in accordance with the court's directions. It is not suggested that the defence is either embarrassing or does not disclose a proper defence. The refusal to grant an indulgence, where there has been adequate opportunity to comply with directions, is not a denial of procedural fairness. But the striking out of a defence, already filed, is such a denial. 35 The difficulty for this Court is that the alternative, namely, the exercise of discretion by the Local Court to allow the matter to proceed, while refusing to allow Mr and Mrs Cassar to adduce evidence that may be available, is a very different exercise than the discretionary judgment of the Local Court now subject to challenge. The qualitative difference in the exercise of discretion was, quite properly, conceded by counsel for Hans Pet in the proceedings before this Court, who suggested that such a course may be a denial of natural justice. It is unnecessary for the Court to comment. 36 It seems, therefore, that the better alternative, in terms of orders that this Court ought to pronounce, is to quash the exercise of discretion and to allow the matter to be dealt with by the Local Court in accordance with law. 37 The terms of the order made by the Local Court are, technically, interlocutory in nature and therefore, pursuant to the terms of s 74(2) of the Local Courts Act 1982, the appeal requires leave. Given the nature of the issues and the matters raised, and the effect of the order of the Local Court (i.e. of final effect), leave will be granted. 38 The Court makes the following orders:

(ii) The judgment of his Honour Magistrate Heilpern, of 22 July 2008, in matter number 10799/2007, Hans Pet Constructions Pty Ltd v Kay Isabel Cassar & Anor, striking out the defence in those proceedings and granting default judgment, be quashed;

(iii) The Local Court deal with the application for a variation of the timetable in the aforementioned matter in accordance with law;

(iv) The defendant shall pay the plaintiffs' costs of and incidental to these proceedings, as agreed or assessed;

(v) To the extent otherwise entitled, the defendant be granted an indemnity certificate pursuant to the terms of s 6 of the Suitors' Fund Act 1951;

(vi) The parties be granted liberty to apply for any further order consequential upon the foregoing reasons for judgment, including any different order as to costs, by application to my Associate by 4 February 2009.

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