JUDGMENT - Ex Tempore
1 HIS HONOUR: This application seeks the stay of the judgment given by the Local Court Parramatta on 25 October 2007, pending the hearing and determination of an appeal against that judgment in this Court. The plaintiffs in the present proceedings, who were the defendants in the Court below, are Comet Building Services Pty Limited and Mr and Mrs Issa. They were involved in the building industry. The defendant in these proceedings, and the plaintiff in the Local Court, was Hy Tec Industries Pty Limited, a supplier of concrete.
2 Four grounds of appeal are relied on to attack the decision below. They are that (1) there was a denial of natural justice in the Court below, (2) the Magistrate gave insufficient reasons for the decision that he made, (3) he in effect compelled a cross-claim that Comet and Mr and Mrs Issa put on to be withdrawn, and (4) he failed to consider whether any prejudice to Hy Tec could be adequately remedied by an order for costs or other procedural directions.
3 The claim in the Local Court arose from the supply, by Hy Tec to Comet, of concrete in the period between November 2004 and February 2005. There was no dispute on the pleadings that the concrete had been supplied, no challenge on the pleadings to the correctness of the invoice price of the concrete, and no other defence such as one alleging a deficiency in quality of the concrete.
4 The total invoice value of the concrete that had been delivered was $11,796.18.
5 Hy Tec sued Comet for the invoice value of the concrete, together with interest and costs. It also alleged that Mr and Mrs Issa had given a guarantee in relation to the payment of the price of the concrete. The defence of Mr and Mrs Issa did not contest that they had given the guarantee.
6 There was only one basis upon which all three of the defendants in the Court below sought to contest liability. It was a contention that the delivery truck that delivered one of the loads of concrete, had collided with an electricity pole causing damage, and that the loss that the Comet parties had thereby suffered provided a reason for not paying for the concrete. The loss that the Comet parties claimed to have suffered in consequence of the damage to the power pole was also the subject of a cross-claim that they brought against Hy Tec.
7 The decision of the Magistrate in the Court below was given on 25 October 2007. The Statement of Claim in the proceedings had been filed in the Local Court on 13 February 2007. Notice of Grounds of Defence were filed on 19 March 2007, and a notice of cross-claim was filed on the same day.
8 The proceedings were thereafter transferred from the Downing Centre, where they were commenced, to the Local Court at Parramatta. There was a callover at the Local Court at Parramatta on 22 June 2007 at which Hy Tec failed to appear. In consequence the Statement of Claim was struck out. However, Hy Tec succeeded in having the matter reinstated. On 24 August 2007 Magistrate Garbett made the following orders.
"1. That the Plaintiff's claim be reinstated.
2. That the Plaintiff is to pay the costs of $450.00 ordered on 22 June 2007 to this date.
3. That the Defendant may file an amended cross-claim by 7 September 2007.
4. That the Plaintiff is to file a defence to the amended cross-claim by 21 September 2007.
5. That the parties are to file an exchange of witness statements by 5 October 2007.
6. That the Statement of Agreed Facts and issues is to be filed by 19 October 2007.
7. That the matter is fixed for review on 12 October 2007.
8. That the matter is fixed for hearing on 25 October 2007."
9 The Defendants in the Local Court did not appear at the review hearing on 12 October 2007. All the evidence on which Hy Tec proposed to rely was served on the solicitors for Comet and Mr and Mrs Issa on 12 October 2007.
10 When the matter came on for hearing on 25 October 2007 no evidence whatsoever had been filed by the Defendants in the Local Court proceedings. At the commencement of the hearing their solicitor, Mr Barrack, filed a Notice of Motion which sought to vacate the hearing. That application had been advised to the other side no earlier than the previous day. The Magistrate considered the application for adjournment, and declined it. His reasons included, in substance, that the case was one which had been case managed by the Court, that the matter was not complex, and that payment of costs was not in the circumstances an adequate way of compensating for an adjournment. Concerning that, he said,
"This is a matter which has been managed the whole way through ... [T]here must be compliance with these directions. Payment of costs can only go so far. Parties are entitled to come to court and have issues resolved, not go on and on and on. There are always side effects that cannot be covered simply by costs orders and parties should be able to come to the court in the expectation that their litigation comes to an end, not simply be renewed for a further period, such a period being completely unresolved as well."
11 There was then some discussion about the terms of an Offer of Settlement that had been made by the Comet side on 24 October. It had proposed the entering into of consent orders, of either of two alternate kinds. The first involved a judgment being given for the Plaintiff against the Defendants for the claimed sum, for the Defendants to pay the Plaintiff's costs, for the cross-claim in the proceedings to be withdrawn, and for those orders to be made without prejudice to any future claims that the Comet parties might chose to make concerning the circumstances of the alleged damage to the power pole. The other alternative that was offered was that consent orders be entered into whereby each party would walk away without any order as to costs.
12 While there was some discussion between the Magistrate and the parties as to whether either of those alternatives would be acceptable, Mr Barrack ultimately withdrew the offer that had been made to settle the case on the terms that had been offered the previous day.
13 Once that withdrawal had occurred, the Magistrate indicated that he would deal with the claim and the cross-claim. Mr Barrack admitted - as was undoubtedly the case - that he was not in a position to conduct the cross-claim. The Magistrate considered certain statements that had been filed, and a statement of Tracy Louriero that was tendered in court. Ms Louriero's statement was one that proved the terms of the application for credit and the guarantee, the supply of the concrete, the various invoices, and the state of the account.
14 Mr Barrack then elected to seek to withdraw the cross-claim. He was permitted to do so. The Magistrate gave judgment for Hy Tec for the amount that had been established by the invoices that were annexed to Ms Louriero's statement.
15 The appeal from the Local Court to this Court is an appeal on a question of law: Section 7 Local Courts Act 1982. The substance of the case that the Comet interests seek to make concerning the alleged denial of natural justice relates to the refusal of the adjournment. In substance they say that refusal of the adjournment meant that their case has not been tried on its merits, and that thus the judgment has been arrived at through an unfair process.
16 A refusal of an adjournment is a discretionary matter of practice and procedure. Thus there is error of law in refusing the adjournment only in the circumstances outlined in House v R (1936) 55 CLR 499. In the circumstances where procedural directions had been given, no substantial reason was given for failing to comply with them, and where the application for adjournment was made at the very last moment, I do not consider that there is a serious question to be tried about whether the Magistrate's refusal of an adjournment involved a denial of natural justice.
17 The complaint of insufficient reasons on the part of the Magistrate needs to be examined bearing in mind what the issues before him were. They were extraordinarily simple. There was really no dispute about the delivery of the concrete, or its value. The only matter of dispute raised by the pleadings related to the alleged damage to the power pole. There was not a shred of evidence that there had ever been a power pole, let alone a power pole that had been damaged, let alone a power pole concerning which the Defendants had any liability to meet the cost of repair. In these circumstances, while the Magistrate said little more than that he was giving judgment on the basis of the statements, that provided, in my view, an adequate reason. I do not think that there is a serious question to be tried that the decision of the Magistrate is vitiated by insufficiency of reasons.
18 The allegation that the Magistrate in effect compelled the cross-claim to be withdrawn is not, it seems to me, something that goes to the correctness of the judgment that he gave. The judgment that he gave was on the principal claim, not on the cross-claim.
19 I do not accept that the Magistrate failed to consider whether prejudice to Hy Tec could be remedied by an order for costs and new procedural directions. In my view, the elements of the Magistrate's decision to which I have earlier referred in this judgment considered precisely those questions. Thus, in my view there is no serious question to be tried concerning this ground either.
20 Mr Rollinson sought to rely, in oral evidence, upon a point which had not been taken in the Court below. It was that, when one looked at the terms of the guarantee that had been given by Mr and Mrs Issa, it was not a guarantee given to Hy Tec. The terms of the guarantee given by Mr and Mrs Issa are in evidence before me. They show that the guarantee is one that was given "to Premier Resources Pty Limited … and to each related body corporate of Premier". The question of whether Hy Tec was a related body corporate of Premier involves a factual matter, that, had it been raised at the hearing, or by the pleadings, could have been investigated. Consistently with the principles upon which new legal issues can be raised on an appeal (see Coulton v Holcombe (1986) 162 CLR 1) I do not regard there as being a realistic prospect that the point that Mr Rollinson mentioned could be argued with success in the present appeal.
21 In these circumstances, the basis for a stay pending an appeal is not made out. The Notice of Motion is dismissed.
22 I order the Applicant to pay the costs of the Respondent of the motion.
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