This is the hearing of two Motions in an appeal brought by the Plaintiff from a decision of Magistrate Bradd in the Local Court on 18 June 2015. Both Motions concern the form of the Plaintiff's Summons appealing from that decision.
The proceeding below was an action for damages arising from a motor vehicle collision. The Court gave judgment for the Plaintiff in the sum of $11,416.97. It subsequently awarded the Plaintiff only 40% of her costs and ordered the Plaintiff to pay 60% of the Defendants' costs and that those latter costs should be paid on an indemnity basis after 17 June 2015.
The Court below ordered general damages for loss of use assessed by reference to interest on the capital value of the Plaintiff's vehicle. The Court below declined to assess general damages for loss of use claimed by reference to the cost of hire of a replacement vehicle because it was not satisfied on the evidence that the Plaintiff had a need for a replacement vehicle at any material time. The present appeal is in substance an appeal against the Court below's assessment of that part of the Plaintiff's damages that consisted of the loss of use claim.
The grounds of appeal in the Summons filed 16 July 2015 were these:
1. The learned Magistrate erred at law by allowing the defendants to rely in their closing address upon a matter that was not in issue between the parties; that being the "need" of a rental vehicle.
2. The learned Magistrate erred at law by allowing the defendants to dispute a matter that had been admitted to in their Summary of Defendants' Case dated 17 June 2015.
3. The learned Magistrate erred at law by denying the plaintiff natural justice or procedural fairness by allowing the defendants in their closing address to rely upon a matter that was not in dispute.
4. The learned Magistrate erred at law by allowing the defendants' counsel to be in breach of section 56(4)(a) of the Civil Procedure Act 2005 that sets out the overriding purpose of the Act.
5. The learned Magistrate erred at law by not granting leave for the plaintiff to re-open her case after the issue of "need" of a rental vehicle was placed in dispute by the defendants.
6. The learned Magistrate erred at law by not properly following the dictates of justice as provided by section 58 of the Civil Procedure Act 2005 when not allowing the plaintiff to re-open her case.
7. The learned Magistrate erred at law by denying the plaintiff natural justice or procedural fairness by not granting leave to the plaintiff to re-open her case.
8. The learned Magistrate erred at law by failing to give adequate reasons.
9. In the alternative, the learned Magistrate erred at law by finding that the Plaintiff had to prove that she "needed" the use of a hire car as this was a compensable loss she was entitled to once the defendants had admitted liability.
The Defendants objected to paragraph 4 of the appeal grounds on the basis that it was not a question of law, and because it was vexatious and embarrassing. The inclusion of this ground also caused a potential problem for the Defendants in being able to brief counsel who had appeared for them in the Court below by reason of Rule 101(f) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 which provides:
A barrister must refuse to accept or retain a brief or instructions to appear before a court if:
…
(f) the barrister has reasonable grounds to believe that the barrister's own personal or professional conduct may be attacked in the case,
This matter is not a relevant consideration for what must be decided on these motions.
Following the Defendants' objection to ground 4 there ensued lengthy correspondence between the solicitors for the parties concerning the form of the Summons. During the course of this correspondence the Plaintiff gave notice that she wanted to amend the Summons both to add some grounds in relation to the damages assessment and also some grounds arising out of a subsequent costs judgment by the Magistrate.
It is not necessary to set out all of that correspondence nor the various proposed forms of the amended summons. It is sufficient to note that the Defendants indicated that they did not object to any amendments proposed by the Plaintiff except to the extent that paragraph 4 remained in the Summons either in its unamended form or in some modified form.
The final form of the Summons that the Plaintiff wished to file was the following:
1. The learned Magistrate erred at law by allowing the defendants to rely in their closing address upon a matter that was not in issue between the parties; that being the "need" of a rental vehicle.
2. The learned Magistrate erred at law by allowing the defendants to dispute a matter that had been admitted to in their Summary of Defendants' Case dated 17 June 2015.
3. The learned Magistrate erred at law by denying the plaintiff natural justice or procedural fairness by allowing the defendants in their closing address to rely upon a matter that was not in dispute.
3A. The learned Magistrate erred at law by not exercising his power to give effect to the overriding purpose of the Civil Procedure Act 2005 as set out in section 56(1) to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
3B The learned Magistrate erred at law by allowing the defendants to breach their duty pursuant to section 56(3) of the Civil Procedure Act 2005 to further the overriding purpose of the Act.
4. The learned Magistrate erred at law by allowing the defendants' [counsel to be in breach of] legal representatives to conduct the matter in way contrary to section 56(4){a) of the Civil Procedure Act 2005 [that sets out the overriding purpose of the Act] by allowing a party to civil proceedings to be in breach of section 56(3) of the Civil Procedure Act 2005. [the italicised portions in brackets were struck through]
5. The learned Magistrate erred at law by not granting leave for the plaintiff to re-open her case after the issue of "need" of a rental vehicle was placed in dispute by the defendants.
6. The learned Magistrate erred at law by not properly following the dictates of justice as provided by section 58 of the Civil Procedure Act 2005 when not allowing the plaintiff to re-open her case.
7. The learned Magistrate erred at law by denying the plaintiff natural justice or procedural fairness by not granting leave to the plaintiff to re-open her case.
8. The learned Magistrate erred at law by failing to give adequate reasons.
9. In the alternative, the learned Magistrate erred at law by finding that the Plaintiff had to prove that she "needed" the use of a hire car as this was a compensable loss she was entitled to once the defendants had admitted liability.
10. The learned Magistrate erred at law by departing from the usual costs order that the unsuccessful party pay the successful party's costs as agreed or assessed.
11. The learned Magistrate erred at law by apportioning costs.
12. The learned Magistrate erred at law by making a finding that there was insufficient time for the plaintiff to consider the Calderbank letter but nevertheless ordering that the plaintiff pay the defendants' cost on an indemnity basis from the date of the Calderbank letter.
13. The learned Magistrate erred at law by making a finding that the plaintiff never had any chance of succeeding in her hire car claim.
That form of the proposed amended summons was sent to the solicitors for the Defendants under cover of an email of 26 August 2015 which said this:
We refer to your latest letter even date and advise that we will no longer press the amendments to ground 4. We attach an Amended Summons leaving ground 4 in its original form. We understand that your clients "are content" with the remaining amendments.
We reserve our right to seek leave of the Court at a later date to make the proposed amendments as the purpose was to make the language clearer and refer to the Defendants' legal representatives rather than just Counsel.
We agree therefore that the appropriate course is for a timetable be to agreed that fixes a date for your clients' motion to strike out ground 4 and the parties putting on relevant evidence.
Please provide us with some proposed Short Minutes.
On 27 August 2015 the matter was before the Registrar. The Defendants had prepared consent orders providing for them to file a Notice of Motion by 10 September 2015 for orders striking out appeal ground 4. There was a direction for the service of evidence. The consent orders then contained an additional term in handwriting as follows:
5. The Plaintiff is to file a Notice of Motion seeking leave to amend the summons on or before 14 days from today.
The result was that the Defendants filed a Notice of Motion on 10 September seekingt, pursuant to r 4.15(1)(a) Uniform Civil Procedure Rules 2005 (NSW), alternatively pursuant to s 23 of the Supreme Court Act 1970 (NSW), an order that paragraph 4 of the appeal grounds be struck out. On the same day the Plaintiff filed a Summons seeking leave to file an amended summons in the form of annexure "I" to the affidavit of Vanessa Leonie Naidu of 10 September 2015. That is the form of the amended summons set out in paragraph 8 above. Both of those Motions came before me for hearing on 12 October 2015. The parties agreed that the only issue between them was whether paragraph 4 in the Summons or the proposed amended summons should remain. The Defendants had no other objection to the proposed amended summons.
The Plaintiff purports to appeal as of right to this Court. The only appeals as of right from the Local Court to this Court are on a question of law: s 39 Local Court Act 2007 (NSW). The Defendants submit that ground 4 does not disclose an error of law and is otherwise vexatious and embarrassing. The Plaintiff submits that the ground clearly raises an error of law because it involves a breach of s 56(4) Civil Procedure Act 2005 (NSW).
The complaint at the heart of the appeal arises in this way. The only issues in dispute, the Plaintiff asserts, were the duration of the Plaintiff's loss of her vehicle and the daily sum charged for the hire vehicle. The Plaintiff says that she did not prove "need" for the hire car because it was not a matter in dispute. The Plaintiff says that, nevertheless, in his closing submissions Mr Oliver, counsel for the Defendants, asserted that the Plaintiff had failed to prove the need for the hire car.
So that the Plaintiff's submissions can be understood it is necessary to set out at some length the transcript of part of the closing submissions.
OLIVER: The leading cases are the decision of the CCA in Anthanasopoulos v Moseley and that of McCallum J in Wong v Maroubra Automotive. The key passages in this judgment, your Honour, are at paras 68 and 69 where McCallum J was considering damages for wrongful detention of a motor vehicle. Your Honour, relevantly, having held that they're indistinguishable for damages for the wrongful deprivation of a motor vehicle by reason of negligent property damage, then turns to the judgment of the CCA in Anthanasopoulos v Moseley. The relevant material is there at 68, as explained by Ipp AJA, with whose judgment Handley JA agreed, "The general
principles...to the chattel". Then at 69 "Ipp AJA expressed the...be any different". Then her Honour refers to the evidence before her. "Need", your Honour, is not self proving. If authority for that is needed I can provide written submissions -
HIS HONOUR: I don't imagine that's in issue.
OLIVER: No. The difficulty for the plaintiff, your Honour, is that one looks in vain for any evidence from the plaintiff where she actually says, "I needed my vehicle".
HIS HONOUR: That's not in the statement.
OLIVER: It's not in the statement. There's evidence from which you'd infer really that there wasn't a need because if one goes to exhibit 2 -
HIS HONOUR: That's Angela Shore's.
OLIVER: Yes. Annexure B to that exhibit, which is p 105 of the Court Book, that's a -
HIS HONOUR: City Motor Transport Pty Ltd. "Do you require a replacement vehicle?" It says, "No". "Was a courtesy car available?"
OLIVER: What it says, "Was a courtesy car available?", "No", "What is your reason for hiring your vehicle?", no information, "What days do you work?", no information, "Did you have any second option?", no information, "Were other forms of public transport available?".
HIS HONOUR: Has it got a zero there or is that--
OLIVER: The number is zero, it appears to be, your Honour, but it's not apparent what we take from that. The plaintiff, when she had the opportunity to make representations about her need, didn't make any. But this is a document with her signature on it and in her statement there's no evidence at
all. Your Honour will recall I took objection to some conclusory hearsay evidence, which hasn't gone in. The plaintiff did not, at any stage, give admissible evidence that she in fact had a need for a replacement vehicle. In my submission what follows from that is that, not that she gets noting because if I wrongfully deprive your Honour of a vehicle that belongs to your Honour I've got to pay something. But the conventional measure of damages has long been held to be that you get interest on the capital value of the asset of which you've been deprived so if, as in this case, the amount of money that's sunk in this vehicle and it's a substantial amount-
HIS HONOUR: You're saying the depreciation over that period of time, basically.
OLIVER: There's no evidence of what the depreciation-
HIS HONOUR: No. I'm saying that's basically the form of the assessment that you would undertake. You're saying it in a different way, it's interest on the capital value.
OLIVER: Yes. There is evidence that the pre-accident value, your Honour, 45 was $112,800. That's Mr Ojeda's opinion at para 3(e) in exhibit 7. Your Honour will see in para 3(e) Mr Ojeda gives his opinion that that was the pre-accident value. What the plaintiff gets is, I would submit, the Court rate which I think at the material time was probably six and a half percent, which is a fairly generous rate of course; it's above the cash rate, six and a half percent for 33 days on $112,800.
That's the measure of general damages you get in the absence of a need. The authorities on this are quite colourfully worded. Lord Halsbury said if I wrongfully take away your chair out of your room and detain it for three months, to suggest I pay nothing; you can't answer that by saying, I didn't often sit on that chair or there were plenty of other chairs in the room but that's all, on the face of it, that is proved that we would have to pay. If your Honour is not against me on that then we probably don't have to deal with any of the convoluted evidence that was presented.
HIS HONOUR: About Mercedes E-Class and --
OLIVER: Or a C-Class.
HIS HONOUR: C-Class or Audi A6. 15
OLIVER: Unless my friend can point to--
HIS HONOUR: Let's get to Ms Walsh, that's a good idea.
WALSH: Your Honour, I do say even if there in need for a car, this is a lady who's driving a four-wheel drive station wagon.
HIS HONOUR: No, it's not a station wagon. It's a BMW X5.
WALSH: Four-wheel drive.
HIS HONOUR: That's what we're calling it.
WALSH: Your Honour, after hearing what my friend has said, I am somewhat embarrassed, I know I have closed our case and it is a very limited amount of evidence that would be required to correct the difficulty in our failure to prove need.
HIS HONOUR: You know there's case law about that, don't you? It's a very high hurdle to overcome. I'm not going to say don't do that but if you want to make that application you're obviously aware there's a very high hurdle, at this stage, to overcome to do that.
WALSH: I understand, your Honour. I'm just considering the interests of justice here. The plaintiff was always on standby--
HIS HONOUR: You have to think of the interests of justice of both parties and the costs, et cetera. They've come here today to answer the case based on the evidence you've presented. They have no onus, they've come here to defend the case that you presented to them. There is case law on this and you would have to refer to that case law and demonstrate to me why, taking that case law into account, I should still grant you and adjournment. It's up to you whether you want to, but you can't do it doing what you're doing at the moment. Just appealing to my emotions is not going to work.
WALSH: No, your Honour. What I'm saying is the plaintiff is on standby. I could get her to the courtroom to give evidence today.
HIS HONOUR: No, not at this stage. Only got 25 minutes to go. She's at 5 Bellevue Hill, she won't be here by four.
WALSH: Your Honour, if you hear my submissions in relation to why your Honour could infer she has a need for this car.
HIS HONOUR: It's up to you.
WALSH: The accident occurs on 23 October 2014. She uses the car up until the time it is delivered to Panel One's repair shop on 10 November 2014. This will all be found, the chronology, in exhibit 4 which is--
HIS HONOUR: That's all right. The accident occurred on the 23rd. She kept driving the car until ready for repair.
WALSH: Yes. She does say in that form you referred to that there were nil other options for public transport.
HIS HONOUR: She's at Bellevue Hill, for goodness sake, there's obviously lots of options.
WALSH: I just wouldn't mind checking some documents to see if there's some further information about that.
HIS HONOUR: It's very difficult that know whether that is actually a zero or what it is.
WALSH: It looks like a zero to me.
HIS HONOUR: It looks like it could be a number of different things. But in any case, it would be absurd to say there's no public transport from Bellevue Hill.
WALSH: The "no" was in relation to a courtesy car and she has filled --
HIS HONOUR: There's no evidence about why she uses the car, what she uses the car for, why she needs it, et cetera. There's no evidence whatsoever as to her use of the car. Without that, so how can one then get to the point of even inferring need?
WALSH: Your Honour, I'd ask that you infer need; that people operate cars on a daily basis and that car is then deprived of them for a period of 30 -
HIS HONOUR: That's what you need, not convenience.
WALSH: I don't think there's an authority to the effect that can be-
HIS HONOUR: Show it to me then.
WALSH: I've read all the authorities the defendant relies on in these proceedings.
HIS HONOUR: No. You're giving your closing address. You're supposed to present your case, hand me authorities. Don't say to me there are no authorities. You're the one who's got to present the authorities.
WALSH: I appreciate that, your Honour. There's a list of authorities of which the defendant relies upon. I have looked at those authorities. There's no suggestion that there is actually a distinction between the word "need" and "convenience".
HIS HONOUR: It's just the plain meaning of the word, isn't it? "Need" has its plain meaning. One doesn't have to go beyond the meaning of "need" to establish that it doesn't mean "convenience". You can look that up in the dictionary, there's no need to do anything else.
WALSH: Your Honour, I'd ask your Honour to infer that "need" doesn't mean an absolute essential in life.
HIS HONOUR: I'm not saying "an absolute essential".
WALSH: Or even if she requires the car any time during those 33 days, she's deprived of that car.
HIS HONOUR: The thing is, what you're saying now you haven't given evidence of.
WALSH: Your Honour, if I could have the matter stood in the list I'd like to 30 contact the plaintiff herself so I can take some instructions. I know it's not evidence before the Court.
HIS HONOUR: You cannot give evidence before the Bar table, there's no point.
WALSH: No, your Honour, I'm not suggesting that for a moment.
HIS HONOUR: I'm not going to allow you to. This is a small matter. I said earlier I was concerned about the length of time this is taking. It's not going to take more than a day. You're supposed to come here prepared. You're not prepared, so you just have to accept the consequences. It's your case, you have to prove it.
WALSH: If I could have it stood in the list for about ten--
HIS HONOUR: No. I'm not standing anything in the list. It's 20 to 4. There's to be nothing stood in the list. You go through a whole procedure that's designed to ensure that you are ready for this hearing. You confirm you're ready for this hearing, this hearing takes place and it takes place in an efficient manner; a just, quick and cheap matter. There's no standing in the list at this stage.
…
WALSH: No. I understand, your Honour. I also have it noted that I had made an indication to your Honour that I would wish to reopen my case.
HIS HONOUR: There's no need to repeat anything, everything is on the transcript. If you want to get the transcript and do whatever you want to do with it, it's already there; you don't have to repeat anything.
WALSH: It would only be very brief evidence.
HIS HONOUR: You've already said all that. Just wasting time, we've only got another ten minutes to go.
WALSH: I guess the only thing, your Honour -I know what your Honour says about the onus being on me - there is nothing in the defence or in the correspondence that pointed out that there was no need for this car.
HIS HONOUR: They don't have to. You've got the onus. You have a certain professional standard, which should be met in these Courts.
WALSH: The defence in regards to the hire car was twofold; (1) the rate was too large and (2) that the period of time was too long. There was never a suggestion there was no need for the car to be hired.
HIS HONOUR: You have to prove your case. (emphasis added)
The Plaintiff justified the inclusion of ground 4 by reason of what appears in s 56(4) of the Civil Procedure Act and what was said by Allsop J (as his Honour then was) in White v Overland (2001) FCA 1333 at [4], a passage subsequently approved by the Court of Appeal in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 at [28] and again in Baulderstone Hornibrook Engineering Pty Ltd V Gordian Runoff Ltd [2008] NSWCA 243 at [160]. The Plaintiff submitted that if ground 4 was not permitted there would be no basis for reliance on those authorities. In any event, the Plaintiff submitted, s 56(4) specifically directed attention to the acts and omissions of the legal representatives of the parties.
The Plaintiff's submissions appear to me to contain a number of misconceptions.
First, it does not seem to me that there is any basis in what transpired at the hearing for the assertion that the Magistrate allowed the Defendants' legal representatives to conduct the matter contrary to s 56(4) of the Act by allowing a party to be in breach of s 56(3). The transcript does not disclose any objection to what the Defendants' counsel did. Rather, the Plaintiff's counsel said that she was somewhat embarrassed that she had closed her client's case without leading evidence to prove the need referred to. No submission was made that the Magistrate should either not permit the Defendants' counsel to make the submission in the circumstances of the agreed issues or even that he should disregard the submissions for that reason.
I endeavoured to ascertain from Ms Walsh for the Plaintiff when it was that the Magistrate should not have allowed Mr Oliver to have conducted the case in the way he did by raising the issue of need in his closing address. I did not get any assistance to determine that matter.
The learned magistrate clearly had s 56 in mind during the argument, not only because of the references to the "interests of justice", but also because he referred to the "need for the hearing to be conducted in a "just, quick and cheap" manner. At no stage, however, was a submission made to him that s 56 would be transgressed if the Defendants were permitted to take the course they had. Rather, the submissions were all directed to what the Plaintiff wished to do to rectify the position she found herself in. Implicit in the way the matter was put to the magistrate ("our failure to prove need") was the notion that s 56 had not been breached by the Defendants.
The Plaintiff submitted at the hearing of the motions that her references to the "interests of justice" was another way of asserting reliance on s 56, but what was being put was not that the Defendants had breached s 56 but that the Plaintiff wished to invoke s 56 to be allowed to re-open or obtain an adjournment.
The ground is unarguable because it has no underlying factual basis. In that way it is vexatious and embarrassing.
Secondly, the Plaintiff's submissions ignore the principle that, unless the contrary is shown, the conduct of the case and submissions made come about on the instructions of the client. That does not mean, as the Plaintiff's submissions seem to suggest, that the clients have or need to have a complete understanding or, indeed, any understanding, of the reasons that a certain course is followed or a certain procedure is adopted by the legal representative conducting the case. There was no evidence to suggest at all that Mr Oliver was acting beyond instructions in the course he took.
The Plaintiff may be correct in directing criticism at the Defendants and their legal representatives generally for the way in which the case was conducted - that is not a matter on which I make any comment nor is it a matter which I have to decide on the present Motions. The point is, however, that if raising the issue of need in the closing address was contrary to what was agreed as the issues in the matter, any breach on counsel's part is a breach attributed to the client. Such breach on the part of a client is contained within ground 3B. Any fault on the Magistrate's part in that regard is contained within grounds 3A and 3B.
It is incorrect in this regard to say, as the Plaintiff now submits, that the Plaintiff would be unable to rely on the authorities referred to unless ground 4 remained in the Summons. In White v Overland Allsop J said at [4]:
… However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly. Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. … Representatives do not owe duties to the other side's client. They owe duties to their own client. But no one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. … (emphasis added)
In Baulderstone Hornibrook Allsop P (with whom Beazley and Campbell JJ agreed) said:
[160] Giving due weight to the realities of life in running a long and complex trial and the vicissitudes of the appreciation of the evidence given, it cannot be emphasised too strongly that it is the responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during the trial. Such co-operation can now be taken as an essential aspect of modern civil procedure in the running of any civil litigation, including hard-fought commercial cases. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise: White v Overland [2001] FCA 1333 at [4], expressly approved in Nowlan v Marson Transport Pty Limited [2001] NSWCA 346; 53 NSWLR 116 (Heydon JA, with whom Mason P and Young CJ in Eq agreed); Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 at [59]-[60] (Ipp JA, with whom Sheller and Hodgson JJA agreed); Sutton v Erect Safe Scaffolding (Aust) Pty Ltd [2006] NSWCA 265 at [4] (Bryson JA with whom Basten JA agreed); and Hooker v Gilling [2007] NSWCA 99 at [52] (McColl JA, with whom Ipp and Basten JJA agreed). (emphasis added)
These passages show that, ordinarily speaking, the responsibility of complying with s 56 lies with the legal representatives of the parties, although that does not overlook the obligations on the parties themselves under s 56(3). In the ordinary course, failures by the legal representatives (in breach of s 56(4)) will be the failure of the parties because the parties are bound by the acts and omissions of their legal representatives.
Thirdly, an error on the part of a judicial officer in permitting something to occur that, on appeal, is held not to have been in compliance with s 56, will not necessarily be an error of law simply because s 56 was involved, and in most cases will not be an error of law. Decisions that rely or ought to rely on s 56 will chiefly be discretionary decisions, such as whether amendments or adjournments should be permitted, or whether a party can rely on evidence or pleadings which were filed contrary to directions of the Court. Many or most breaches will be breaches of a procedural requirement imposed by a court or by the Rules or both.
Procedural error which amounts to procedural unfairness will amount to an error of law. Grounds 3, 5, 6 and 7 are grounds that in substance rely on a breach of procedural fairness to the Plaintiff. The position with other procedural errors it otherwise.
Although the present proceedings are an appeal and not proceedings for administrative review, some light is cast on the result of a breach of a procedural requirement in administrative law by what appears in Aronson & Groves, Judicial Review of Administrative Action (5th Edition 2013, Thomson Reuters) at [6.240]:
It is in the nature of procedural rules that they are frequently broken. Procedure being the servant of substance, invalidity is the least common of the possible consequences of such breaches. Breach of procedure can usually be overlooked by all concerned, "waived" by those adversely affected, or rectified by the parties or the decision-maker, all without risk to the validity of the final outcome. Indeed, the very concept of procedural requirements implies that they are usually of lesser order of importance than substantive requirements, and one frequently sees the term qualified by the adjectival "mere".
As I mentioned earlier, no objection was taken to Mr Oliver's having made the submission about need or that the Magistrate allowed it nor was it submitted that the Magistrate should have disregarded it because it went beyond the agreed issues. In the first place, it is difficult to suggest error on the part of a judicial officer when it was never put to that person that he or she should take or not take a particular course or make a particular ruling: see in a different context but dealing with the same principle Avery v R [2015] NSWCCA 50 at [72] and Zreika v R [2012] NSWCCA 44 at [80] and [82].
If it was, nevertheless, an error, it was a procedural error which I consider was waived by the failure to object or make such a submission.
Even if the error in ground 4 is established, such error did not amount to procedural unfairness. If there was procedural unfairness (and it would be inappropriate for me to express any opinion about that on the present Motions) it was in the failure to permit the Plaintiff to lead evidence or to take some other steps to deal with the situation with which she was faced after Mr Oliver's submissions. There was no procedural unfairness as such in either the Magistrate allowing Mr Oliver to make the submission or thereafter considering the submission.
In my opinion, ground 4 does not amount to an error of law.
Fourthly, nothing is or can be achieved by the Plaintiff in drawing the distinction between the Defendants in ground 3B and the Defendants' legal representatives in ground 4. If there was a separate error of law (that is, separate from an error which produced procedural unfairness) by the Magistrate in allowing a breach of s 56 of the Civil Procedure Act (a matter which I doubt but which was not argued) the Plaintiff will either succeed or fail on ground 3B being upheld. Where there is no evidence, and it is not asserted, that Mr Oliver acted without instructions in making the submissions in his final address, the Plaintiff could not succeed on ground 4 if she failed on ground 3B. To allow ground 4 to remain would carry with it the implied suggestion that Mr Oliver acted beyond his instructions. In the absence of any evidence or assertion to that effect it is vexatious and embarrassing for ground 4 to remain in the Summons.
It needs also to be said that the Summons and the proposed amended summons are typical of documents containing grounds of appeal where the same ground in substance is expressed in a number of different ways using slightly different expression. Putting aside grounds concerned with costs there are really two matters of substance that arise from the Magistrate's decision. The first is an arguable denial of procedural fairness in entertaining submissions about need, if that was not an issue in dispute, and by not permitting the Plaintiff to reopen her case in that regard. Grounds 1, 2, 3, 3A, 3B, 4, 5, 6 and 7 all concern the first issue of substance. The second issue of substance concerned the failure to give adequate reasons, dealt with by ground 8.
Associated with that is the need to ask what is achieved by grounds 3A, 3B and 4 in any event. Without anything more, success on those grounds leads nowhere.
The amount in dispute does not justify the expression of so many grounds of appeal that are ever so slightly differently calibrated, let alone the costs of this interlocutory dispute.
For the reasons given, what is contained in ground 4 is not a ground asserting an error of law and it is vexatious and embarrassing. If the Plaintiff does not file an amended summons, ground 4 of the existing summons will be struck out. If the Plaintiff seeks to file the amended summons, leave will be given to file a summons in the form of annexure "I" to Ms Naidu's affidavit omitting ground 4.
The Plaintiff must pay the costs of the Defendants' Motion to strike out ground 4.
The Plaintiff resists a costs order in relation to her own Motion seeking leave to amend. She says that the Defendants are responsible for making that Motion necessary because they would not agree to the Plaintiff amending the Summons that contained original ground 4 or any modification thereof.
The Plaintiff relies on the email of 26 August 2015 (paragraph 9 above) but it is not clear how that assists the Plaintiff. The Motion to amend was not necessary until there had been a determination of the Defendants' Motion to strike out ground 4. The Defendants have made clear all along that their only objection to any form of the amended summons was ground 4. If the Defendants' Motion was determined unfavourably to the Defendants there could have been no further objection to the filing by the Plaintiff of the amended summons including ground 4. If the Defendants were successful on their Motion they had indicated that there was no objection to the remainder of the proposed amended summons. In those circumstances the fact that the Plaintiff filed the Summons seeking leave to amend, which I note was done by consent on 27 August 2015, must be held to be at the Plaintiff's behest.
The same issue was effectively raised by the Plaintiff's Motion for leave to amend with the Plaintiff being unsuccessful in seeking to file an amended summons containing ground 4 or any variation thereof. In those circumstances the Plaintiff should pay the costs of her own Motion also.
Accordingly, I make the following orders:
Ground 4 of the Summons filed 16 July 2015 is struck out.
The Plaintiff has leave to file an amended summons in the form of annexure "I" to the affidavit of Vanessa Leonie Naidu sworn 10 September 2015 but omitting paragraph 4 therefrom.
The Plaintiff is to pay the costs of the Defendant's Motion filed 10 September 2015.
The Plaintiff is to pay the costs of the Plaintiff's Motion filed 10 September 2015.
[3]
Amendments
19 October 2015 - Amended to correct typographical error in para [40].
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Decision last updated: 19 October 2015