Del Duca v McElwaine

Del Duca v McElwaine - [2006] NSWSC 514 - NSWSC 2006 case summary — Zoe

[13]

Grounds of appeal 4 Mr Del Duca appeals from the whole of the decision of Magistrate Morahan on the basis that the plaintiff to these proceedings was denied natural justice. The plaintiff's grounds of appeal are as follows:- firstly, at the pre-trial review held on 27 October 2005 the Registrar erred in that he did not attempt to identify the matters in dispute between the parties, erred in that he did not attempt to settle the proceedings, and ordered the plaintiff and defendant to file and serve its witness statements by 17 November 2005; secondly, despite such order the plaintiff was not served with the defendant's statements until 7 December 2005, being the day before the matter was heard and determined by the Local Court; thirdly, the defendant's statements raised evidence not raised by the defendant at any time prior to 7 December 2005; fourthly, the hearing commenced in circumstances where the plaintiff was self represented and the plaintiff had inadequate time to consider and be in a position to answer the case presented by the defendant, despite objections by the plaintiff; fifthly, the Magistrate erred in allowing the defendant to rely on the witness statements at the hearing on 8 December 2005; sixthly, the Magistrate erred in not adjourning the hearing to allow the plaintiff sufficient time to consider and prepare his defence and/or any evidence in reply to the statements served by the defendant; seventhly, in the circumstances where the defendant had run the case on the basis that he had been retained to provide services by Mr O'Donnell on behalf of or as agent for the plaintiff, the Magistrate denied the plaintiff procedural fairness by not deciding the case on that basis, but instead deciding the case in favour of the defendant on a different basis, namely, on the basis that the defendant was entitled to assume that he was dealing with the plaintiff personally; eighthly, the Magistrate denied the plaintiff procedural fairness by making the following factual findings without any evidence: (i) the plaintiff met with Mr O'Donnell and there was an agreement that any veterinary fees would be paid by the plaintiff if they were required; (ii) the defendant thought that the plaintiff was the principal that he was dealing with; and (iii) the defendant was well entitled to assume that he was dealing with the plaintiff in a personal capacity. 5 In Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 and Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J (at [23]-[24] and at [20]-[21] respectively) made essentially identical observations on natural justice. In Kojima he stated: "The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Court. This is clear from the nature of the function to be performed by that tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act. The content of the requirements of natural justice is not fixed. The content is fluctuating. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to: (i) act judicially; (ii) deal with the matter for decision without bias; (iii) give each party the opportunity of adequately presenting its case; (iv) observe the procedural and other rules provided for in the relevant statute; (v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice."

[21]

(6) Proceedings in a Court's Small Claims Division (other than any judgment given or order made in respect of the proceedings) are not required to be recorded." 11 Practice Note 2 of 2005 (see annexure ADD:12, aff Del Duca 23/02/06) at [10.1], [10.2], [10.3] and [10.4] states: "10.1 There is no right to call witnesses to give evidence, to give evidence on oath/affirmation or to cross-examine a party or witnesses on oath/affirmation or otherwise in the Small Claims Division 10.2 Where a direction had not been given at the Pre-trial review by the Magistrate, Assessor or Registrar for the attendance of any witness at the trial of the proceedings, the proceedings will be heard and determined by each party tendering the written statements of witnesses together with any other relevant documentation or material in support of the party's case. There will be no right to examine or cross-examine any witness. Parties will, however, be entitled to make comments, present arguments and make final submissions on the evidence. 10.3 Where a direction has been given at the Pre-trial review by the Magistrate, Assessor or Registrar, that a witness attend for cross-examination, the proceedings will be heard and determined on the oral evidence and the written statements and other documents and materials which have been tendered. Submissions on the evidence will also be allowed. 10.4 The procedure at the trial of the proceedings in the Small Claims Division will be determined by the Magistrate or Assessor as he or she thinks fit." 12 In Wende v Finney [2005] NSWSC 927 Howie J at [27] and [28] made some pertinent observations about the proceedings in the Small Claims Division which I respectfully reproduce here. They are: "Of course informality and the abandonment of the normal rules of evidence and procedure should not be allowed to give rise to unfairness even where the justice being administered is in relation to relatively trivial claims. Rather in such matters the court might need to be particularly astute to ensure that the lack of formality and the speedy resolution of claims does not become an end in itself at the expense of the appearance of fairness to the parties within the court's jurisdiction. After all the formal rules of procedure that normally attend a hearing are generally aimed at producing fairness to the parties, sometimes at the expense of efficiency in the exercise of the court's jurisdiction. So where those rules are displaced by the need to provide cheap, efficient and expedient justice to the parties, the advantages can sometimes be obtained at too high a price so far as a particular litigant is concerned.

[23]

The hearing before the Magistrate 15 Mr Del Duca had been served with the documents from Mr McElwaine the day before the hearing. He did not avail himself of the opportunity to read them overnight. Nor did he collect them from his office early so he could read them prior to the hearing taking place. 16 Mr Del Duca appeared at that hearing unrepresented before the Magistrate. At Court, Mr McElwaine's solicitor handed Mr Del Duca further copies of the documents that had been served the previous day. At the outset of the hearing, Mr Del Duca told the Magistrate that he had not seen the statements from Mr McElwaine until that morning and that he was greatly disadvantaged (t 2.18). The Magistrate anticipated that Mr Del Duca was about to seek an adjournment and gave reasons why the matter was to proceed on that day. 17 The Magistrate stated: "I can't see any disadvantage, I mean as far as I'm concerned, you both got the statements yesterday or you've got them at the last minute. The case is decided on the statements and the oral submissions that you make. …" 18 Mr Del Duca objected to an additional statement upon which Mr McElwaine sought to rely. When Mr Del Duca objected, Mr McElwaine's solicitor did not press for tender of that statement. Mr Del Duca stated that he had just had a very quick look and he would like to put on a sort of defence. A defence had already been filed. The Magistrate pointed out that he was not entitled to prepare or file statements in reply. The Magistrate outlined the procedure that was to be followed during the hearing. It was as follows: "…each of you has the opportunity to address based on the statements. Each of you then has the opportunity to address in reply and then each of you has the right to make submissions as to why I should decide the case in your favour and then I give a decision. The whole thing takes about 20 to 30 minutes and there are no statements in reply. The whole purpose of this Small Claims Division is the speedy expedition of cases." 19 A short adjournment was taken so that the Magistrate could read the documents furnished by both sides. The hearing then took place in accordance with the procedure outlined above. There was a second adjournment taken. At one stage during the proceedings Mr Del Duca indicated he wanted to obtain a further copy of a document and sought some time to have a fax sent to him at the courthouse. The Magistrate acceded to this request (t 7). When this letter (which had an ACN number on it) was shown to Mr McElwaine's solicitor, the solicitor stated that Mr McElwaine and Mr O'Donnell were present in Court and while they knew that they would not be required to give evidence, if the Magistrate felt that anything turned on that letter, Mr O'Donnell could give evidence. 20 In relation to the issue of cross examination, the Magistrate stated that very comprehensive statements had been filed by both parties, two by the plaintiff and three by the defendant and the matter had proceeded for some time before Mr O'Donnell raised the issue of cross examination. The Magistrate continued that given the nature of the proceedings, it was his view that cross examination would not be appropriate.

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