Ejueyitsi v Thomas & Anor

The proceeding in the Local Court on 10 June 2022

1. Subject to a qualification, unusually for an appeal from a decision of the Local Court to this Court, the transcript of what was said and what the Magistrate decided was not before the Court. The qualification is that, by reason of s 35(6) of the Local Court Act 2007 (NSW), there is no requirement for transcription of what is said in the proceeding; as distinct from the decision or order of the Magistrate.
2. It was common ground, however, that both parties had sought a written transcript of the proceeding, and, more relevantly, any decision and orders of the Magistrate. Further, the respondent (at least) had sought a sound recording of what was done in the Local Court, but that was not supplied either.
3. This meant that, for the purposes of this interlocutory application, the Court had to rely upon what was said by the parties.
4. In her affidavit (Exhibit A), Ms Glover, the solicitor for the applicants, deposed, on information and belief, sourced from what Mr Ball, the applicants' Counsel (who appeared for them in the Local Court) had told her. This was that both the respondent and Mr Ball were given the opportunity to make oral submissions to the Magistrate with respect to the applicants' motion that was before the Local Court and, following the completion of those submissions, the learned Magistrate gave an ex-tempore judgment and orders striking out the Amended Statement of Claim and ordering the respondent to pay the applicants' costs. Ms Glover annexed the orders of the Local Court to corroborate that evidence.
5. The respondent did not prepare an affidavit in this proceeding in response to Ms Glover's affidavit, at least in respect to Ms Glover's (hearsay) account of what had occurred in the Local Court. Nevertheless, his sets of submissions (MFI 2 and Ex 1) partly contained evidentiary matters. I allowed Mr Ball the opportunity to cross-examine him.
6. In the course of the cross-examination, the respondent conceded that he had the opportunity to say things to the Magistrate, after Mr Ball had said things. Asked by myself as to what these were, the respondent indicated that they were comparable to what was contained in his summary of argument (MFI 2).Further, the respondent conceded that the Magistrate had told him why his pleading was struck out. He said, in particular, that the Magistrate had given two reasons verbally. He indicated that the Magistrate had, in fact, argued with him.

The Grounds of appeal in the Summons

1. Under the section 'Appeal grounds', in his Summons (filed 8 July 2022) the respondent wrote the following (verbatim, and adopting the same emphasis): "5. His honour erred when he struck out the plaintiff action on ground that there was no cause of action; despite his honour accepted the authorities and rulings of this court and the Supreme Court submitted by the plaintiff in particular on the cases of Wickstead v Brown (1992) 30 NSWLR 1 at 11 (Kirby J, Handley J and Cripps) which was unanimously upheld on appeal in the High Court under Justices Dean, Toohey and Gaudron that 6. Where the facts are peculiarly within the defendants knowledge, the plaintiff claim should not be dismissed because of the gap in the plaintiff's case, if necessary evidence might be obtained as a result of discovery or interrogatories" His Honour also accepted the ruling in Ford v Nagle (2004) NSWCA where his honour held: "That where there is a serious dispute as to the facts of the case the plaintiff action should not be dismissed" And in the same Text in Wickstead v Brown (1993) their Honours in the High Court on appeal held: "That is not whether there is a cause of action: It is whether the causes of action stated by the appellant is arguable" In this case the plaintiff's incapacity to argue his causes of action His honour at best would have ordered for amendment if he had a concern Court below erred to abandon precedent of this court and higher courts 7. His honour was in error with respect, even if there was a gap in the plaintiff action, but would have exercised discretionary power to order parties for evidential discovery of materials for the matter and opportunity giving to parties to be properly ventilated in the interests of justice 8. His honour was correct when he said that the first defendant was not a party to the proceeding, at best the second defendant would be excused in as much the first defendant was the major actor. Court is within the means of error with respect if pressed"
2. I have set this out at length since it was the content of the Summons which provoked the application for summary dismissal. The nature of the grounds of appeal identified in the summons discharged the basic function of the originating process in providing procedural fairness to the applicants, through setting out the case which the defendant had to meet.

The respondent's new case and de facto application to amend his Grounds of Appeal

1. But after the applicants had supplied written submissions (dated 15 September 2022), which were prepared in response to the grounds identified in the Summons, the respondent agitated grounds for appeal which had not been identified in the Summons.
2. These were apparent from the respondent's 'Additional Appellant's Submissions on the Defendant's Notice of Motion Filed on 12 August 2022', which I alluded to earlier in these reasons (Exhibit 1). These written submissions had been prepared a week before the hearing, on 13 October 2022. In summary, it was apparent that the grounds of appeal identified in those written submissions (in paragraphs 3-6) were that: 1. the Magistrate did not give reasons for his decision. This amounted to a denial of procedural fairness; 2. the Magistrate did not consider the evidence or facts, denying him a fair hearing, which also amounted to a denial of procedural fairness; and 3. the Magistrate exceeded his jurisdiction by 'failing to adhere to' a rule of Court (r 14.28).
3. These submissions were not accompanied, as they should have been, by an application by the respondent to amend his Summons to add new grounds or, as might have been implicit, abandon the grounds from his original Summons. But plainly, the respondent was seeking to run a new case in his appeal which was only responsive to points raised by the applicants in their submissions which had been directed to the grounds of appeal identified in the Summons.
4. After an exchange with Counsel for the applicants I determined that the respondent's written submissions should be treated, in substance, as adding additional grounds of appeal; although on the basis that no inference adverse to the applicants should be drawn from the absence of a transcript of any decision by the Magistrate in this Court.

The applicants' evidence

1. The last iteration of the pleading before the Local Court was annexed to the affidavit of Ms Hannah Glover, of the firm of solicitors representing the applicants, sworn 15 August 2022 (Exhibit A).

The respondent's evidence

1. I noted that parts of Exhibit 1 contained evidentiary assertions and referred to Mr Ball being given the opportunity to cross-examine the respondent. I have touched upon aspects of that cross-examination bearing upon the respondent's recollection of what had occurred in the Local Court.
2. Other aspects of the cross-examination of the respondent were that:

• he had requested a transcript since he believed that the Magistrate had made a mistake;
• he had received and read Ms Glover's affidavit (relied upon in support of the present motion for summary dismissal) which, relevantly, gave an account of what had occurred in the Local Court;
• he had not inserted in his original summons complaints about a denial of procedural fairness or a lack of jurisdiction in the Magistrate;
• he had read Mr Ball's written submissions (MFI 1) which had pointed out those omissions from the respondent's summons;
• it was put, in effect, to the respondent (though his answer was not responsive) that he had contrived complaints manifested in his additional submissions (Exhibit 1) to cover the earlier deficiencies in his summons;
• he admitted that the only reason the parties were in Court was because he did not like the Magistrate's reasons;
• he had (subsequently) requested a transcript since he believed that the Magistrate had erred;
• he felt rushed by the time limit for filing appeals to this Court, without the opportunity of considering the transcript of the Magistrate's reasons. That is, he felt that he did not have sufficient time to file a proper, or considered Summons, to appeal the Magistrate's decision.

The applicants' submissions (on the grounds in the existing Summons)

1. The applicants' characterised the substance of the dispute a little differently to the respondent. It had nothing to do with any decision to refuse to review a grade in an academic assessment. It was rather the decision to discontinue the respondent from his course on the basis of his failing to pay his tuition fee upfront. On the basis of these facts, the applicants contended in the Local Court that there was nothing preventing the respondent from refraining from enrolling in the unit if he could not meet the upfront payment, or alternatively, to dis-enrol prior to the date for payment (20 January 2021).
2. In this Court, by the written submissions of its Counsel, the applicants argued that the appeal was effectively incompetent as it did not raise either of the two grounds to enliven this Court's jurisdiction to appeal decisions of the Small Claims Division of the Local Court under s 39(2) of the Local Court Act. The 'appeal grounds' in the Summons disclosed, at best, only arguable errors of law.
3. That did not disclose a reasonable cause of action requiring adjudication in this Court.

The respondent's submissions (on the grounds in the Summons)

1. Initially, the respondent relied upon a 4-page written submission (MFI 2).
2. In it, he argued that there was a triable issue whether the parties had a contract and if there was, whether it was discontinued or cancelled. If the applicants had knowledge of facts on that question, the respondent should have the opportunity to use court processes to obtain information from them to rectify any problem with the pleading. He argued that there was some material from which it could be inferred that there was a contract or negligence, but further processes of the Local Court might enable him to acquire more evidence. There were facts which the applicants had raised which were arguably inconsistent. If there was a significant problem with the pleading, the respondent should have been allowed to amend on the assumption that he could remedy evidentiary deficiencies before the hearing. It was wrong for the applicants to argue that he had only an action in negligence and not in contract.

The respondent's submissions (on the new grounds in his written submissions)

1. As indicated, on 13 October 2022, the respondent filed a document titled 'Additional Appellant's Submissions on the Defendant's Notice of Motion Filed on 12 August 2022', running to 5 pages with 4 annexures ('A' - 'D') (Exhibit 1). In the section of this document with the sub-heading 'Facts of the matter', the respondent essentially repeated the facts relied upon to sustain his pleading in the Local Court.
2. It is fair to say that the document was not just submissions, but contained assertions of fact to ground submissions. That is why I allowed Mr Ball to cross-examine the respondent. There is also an element of repetitiveness in the submissions.
3. These points were, to some extent, fleshed out in argument (at paragraphs 20-25 of his document). As to the first ground, he said that his pleading had identified actions in contract and negligence, invoked a 'cause of action' in estoppel. But he argued that the Magistrate did not give reasons or explain why he struck out the claim.
4. He argued that this ground could not be answered by the applicants' reliance upon the orders that were made in the Local Court that were annexed to her Ms Glover's affidavit of 15 August 2022, or hearsay evidence (sourced from what Counsel had said) about the Magistrate giving an ex-tempore judgment. In this connection, the respondent had earlier said (paragraph 4) that he had requested written reasons of the decision and a transcript of what had occurred in the Local Court on 10 June 2022, but the Local Court had indicated that it could not locate written reasons nor a written transcript. (These matters were to some extent reflected in Annexure 'B' to his document, although the annexure proved only the request for a sound recording of what had occurred in the Local Court).
5. The respondent argued that a failure to give reasons was a "function of due process and justice". Because the Magistrate did not give reasons, it was said that this Court was deprived of the opportunity to understand why the Magistrate made the decision that he did.
6. The respondent addressed r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). He argued that if the power to strike out was exercised, the Magistrate had discretion in permitting him leave to amend his pleading. He argued that he acted beyond jurisdiction by receiving evidence from the defendants 'on the substantive claim' and dismissing the claim without providing reasons, or making evidentiary findings, or factual findings in contrast to the course he could have taken of ordering him to amend his statement of claim.
7. The respondent submitted that, in these circumstances, the applicants' motion should be dismissed with costs, the appeal allowed with the matter remitted back to another Magistrate in the "Minor" (i.e. Small) Claims Division of the Parramatta Local Court.

The applicants' submissions (on the new grounds)

1. After the respondent gave evidence at the hearing of the motion, Mr Ball submitted that there could be no basis for a finding that the Magistrate had not given reasons. The respondent himself accepted that verbal reasons had been given. His main complaint was that he could not get access to a transcript of those reasons to help him prepare an appeal to help him argue that the Magistrate had committed errors of law. I understood Mr Ball to submit that the ground (absence of reasons) had only been raised by the respondent in recognition that at the time he had filed his Summons, commencing this appeal, nothing had been raised in the Summons identifying any denial of procedural fairness or lack of jurisdiction in what the Magistrate had done.

Statutory provisions and rules

1. This Court's jurisdiction in relation to appeals or reviews of decisions from the Small Claims Division of the Local Court derives from s 39(2) of the Local Court Act 2007 (NSW). It is very limited. By that provision, a right of appeal from a decision of the Small Claims division of the Local Court can only be brought on two grounds, being a lack of jurisdiction or denial of procedural fairness.
2. The Attorney General's Second Reading speech to the Legislative Assembly on 22 November 1990 contained the following passage relating to a statutory right of appeal corresponding now to s 39(2), which explained the limited nature of appeals from the Small Claims division of the Local Court to this Court: - "There will be no appeal of any kind from the decisions of the Small Claims Division other than for lack of jurisdiction or denial of natural justice. The prohibition of appeals is quite necessary if a party is to be able to litigate in the division without the risk of suddenly escalating costs. It is also fair to argue that if the taxpayer is to fund a forum for people who decide to litigate over small matters, it should be a once-only forum and the public purse should not have to contribute the immense cost of providing an appellate procedure."
3. As I explained recently in Eliezer v Sydney Water Corporation [2021] NSWDC 66 [1] at [90], in cases such as this, an applicant may establish an error within jurisdiction, but this Court has no jurisdiction to remedy errors of law within the Small Claims Division of the Local Court. There is no right of appeal to this Court from a decision of the Small Claims Division of the Local Court on the ground of an error of law: Stojanovski v Parevski [2004] NSWSC 1194 at [20]; Habra v Reinke [2005] NSWSC 1090 at [8].
4. As to the basis of an appeal on the ground of "lack of jurisdiction", this expression is different to a ground of appeal based upon jurisdictional error [2] . This basis for appeal was reviewed by McCallum J (as her Honour then was) in Arnoldus-Lewis v Murphy [2008] NSWSC 1103 [3] . In that case, her Honour adverted to the following passage in a decision of Toohey J in Harris v Caladine (1991) 172 CLR 84 at 136, subsequently cited by the plurality in ASIC v Edensor Nominees Pty Limited (2001) 204 CLR 559: "the distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred ".
5. Her Honour also noted the distinction between jurisdictional error and error in the exercise of jurisdiction. More pertinently perhaps, her Honour distinguished between an absence of power and a want of jurisdiction (at [33]-[36]), though it is appropriate to acknowledge that her views were in that sense dicta.

Approach to summary dismissal applications in this Court

1. All procedural applications, such as an application for summary dismissal, must be made with reference to the dictates of justice: Civil Procedure Act 2005 (NSW), ss 58(1)(a)(ii) and 56(2), read with r 13.4 of the UCPR. Mandatory considerations include the civil case management objects identified in ss 56-57 which, to put the matter at its simplest, requires the Court to facilitate the 'just, quick and cheap' resolution of the real issues in a proceeding. Section 57(1) specifically refers to (a) the just determination of the proceedings; (b) the efficient disposal of the business of the court; (c) the efficient use of available judicial and administrative resources; and (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
2. For applications under r 13.4, I acknowledge the exceptional nature of the power and it is exercisable, to adopt the General Steel test, only if the claimant's case is obviously untenable.
3. It is important to emphasise that the question is not whether the respondent's case in the Local Court had arguable merit, on the application of law to the facts (and therefore should not have been summarily dismissed) or whether or not his pleading should have been struck out. These were decisions for the Small Claims Division of the Local Court.
4. The question is whether, given the limited rights on appeal from decisions of the Small Claims Division of the Local Court, the respondent's appeal in this Court against that decision, or those decisions, is obviously untenable.

The existing grounds in the Summons

1. Grounds 5 to 8 in the Summons do not disclose a reasonably arguable basis for appeal, or raise a triable issue, for this Court's adjudication. Any errors in those grounds do not constitute a denial of procedural fairness or evince a lack of jurisdiction.
2. The record of what occurred in the Local Court does not indicate that the respondent's case was summarily dismissed in circumstances where there were triable issues, of fact and/or law; and where evidence might be obtained (through the ordinary processes of the Court) to assist the respondent to prove his case. The order now impugned suggests that his action was struck out. This was confirmed by Mr Ball at the hearing before me.
3. To the extent that complaint is made that the Magistrate should have permitted the respondent the chance to amend his pleading (further), that is a complaint about the exercise of a discretionary power. Even if the Magistrate was wrong in not giving the respondent the opportunity to re-plead, Mr Ball conceded that the order made in the Local Court did not preclude the respondent from preparing a new iteration of his pleading (perhaps taking into account earlier criticisms made by Mr Ball or the Magistrate of earlier versions of his pleading) and applying for leave to amend in the Local Court. Instead the respondent elected to take the path of seeking correction in this Court from a suggested discretionary error from the Magistrate.
4. In my opinion, these grounds do not arguably establish a denial of procedural fairness or shows an absence of jurisdiction.
5. I do not fully understand Ground 8 in the Summons, which appears to distinguish the position of the two applicants. But the success of that ground did not turn upon distinguishing the position of the two applicants on the merits.
6. None of the grounds complained of in the existing Summons would arguably entitle the respondent to appeal in this Court. I am satisfied that there is a virtual certainty that the respondent could not succeed with them such that summary dismissal of the appeal would be appropriate if attention was confined to what was only contained in the Summons.

The proposed new grounds in the respondent's submissions

The lack of jurisdiction ground

1. It appeared to be common ground that the Local Court had the jurisdiction to determine the respondent's claim against the applicants. He brought a claim for damages, allegedly based in contract or in tort. This was a 'money claim' within the meaning of s 29A of the Local Court Act. In its last iteration that was before the Local Court, the plaintiff claimed the sum of $20,000, which was the jurisdictional limit for the Small Claims Division (s 29).
2. Having the capacity to adjudicate the plaintiff's claim, the Local Court's decision involved the exercise of a power under r 14.28 of the Uniform Civil Procedure Rules to strike out that claim. The respondent complains that this power was exercised erroneously, on several grounds, in particular an omission to grant leave to the respondent to re-plead after striking out the pleading. He contends that the Magistrate 'failed to adhere' to r 14.28. I agree with the applicants' submission that such failure, if that is what occurred, could be characterised as, at best, an error of law, or perhaps more accurately, discretionary error. But in my view, this aspect of the respondent's complaint, properly characterised, raises a question about the exercise of power, not any lack of jurisdiction in the Local Court. This ground of appeal fails.

The procedural fairness ground

1. Ms Glover, an officer of the Court, gave sworn evidence that an ex-tempore judgment had been delivered by the Magistrate. She also asserted that the ex- tempore judgment had been given after the respondent had been given the opportunity to be heard. The respondent did not give sworn evidence in an affidavit, or evidence on affirmation, to contest Ms Glover's evidence. When he cross-examined Ms Glover, he did not put to her that her evidence (which was hearsay in nature) was wrong. Further, when he was cross-examined himself, he accepted that verbal reasons had been given. In the circumstances, I accept Ms Glover's assertions.
2. I do not infer from the mere inability of the Parramatta Local Court, in response to requests for written reasons (or sound recording of a transcript) made in or about September 2022 by the respondent, to supply a transcript of reasons, to evidence a failure by the Magistrate to give reasons for the decision on 10 June 2022. From personal experience, in this Court, in a civil case, it is not customary that judicial officers receive transcripts of hearings conducted before them, or judicial decisions delivered, as this one was, ex-tempore. Usually, parties in civil proceedings, at least in this Court, who want a transcript of a hearing ask the relevant transcription service directly without involving the Court at all. I would not readily infer that these realities of the administration of (civil) justice would not also apply in the Small Claims Division of the Local Court. The point is that an inability to generate a transcript of reasons is an administrative concern, not one reflecting upon a judicial officer.
3. There is an additional basis for accepting Ms Glover's evidence. In the original summons and summary of argument (MFI 2), as indicated by the existing grounds of appeal, the respondent took issue with the 'correctness' of what the Magistrate had 'accepted' about certain matters and had 'ignored' or 'abandoned' precedents. The respondent's articulation of what the Magistrate did and did not do reinforces my confidence in Ms Glover's evidence that an ex- tempore judgment was given even if it had not been transcribed. Indeed, I accept the implicit point raised by the applicants that if reasons had not been given, it would have been expected that this would have been at the forefront of grounds for the appeal stated in the Summons prepared less or about a month after the decision; not raised for the first time only a week out before the hearing of the applicants' application to have this appeal summarily dismissed.
4. I do not accept that no reasons were given for the ruling even if a transcript of the reasons was not put before this Court. This pulled the rug out from the respondent's new submission. Reasons were given.
5. There is no triable issue that a denial of procedural fairness arose because of the respondent's inability to access a transcript of argument, or reasons in the Local Court. That was not something for which the learned Magistrate was responsible in any way. Although this may frustrate litigants who are dissatisfied with decisions to have only a limited time to prepare an appeal, without the benefit of a written transcript of reasons, that is unfortunately a fact of life. It says nothing about the correctness of the decision itself or, more relevantly, gives no indication that the judicial officer denied procedural fairness or made a decision in the absence of jurisdiction.
6. On that basis, there is no triable issue raised by this new ground on the basis of a denial of procedural fairness.
7. I note further that the respondent did not articulate a ground that such reasons as were given were inadequate; a view which would conventionally go to proof of an error of law and therefore not be amenable to an appeal to this Court under the statutory provision for appeals to this Court from the Small Claims Division of the Local Court. At any rate, even if such a ground had been run by the respondent, it would have run into the difficulty that the content of any obligation to give reasons is shaped very much by the circumstances. Relevant circumstances here includes the statutory context of how proceedings are conducted in the Small Claims Division (s 35 of the Local Court Act) and also the circumstance that by striking out the version of the pleading put before him, the Magistrate had not dismissed the claim. It was, to repeat, as Mr Ball conceded, open to the respondent to apply to further amend his pleading without troubling this Court. In that circumstance, it would be hard to argue that even a short statement of verbal reasons would be inadequate when as a result of what the Magistrate had done, the respondent had still 'lived to fight another day' in the Local Court in the sense of having the opportunity to apply for further amendment. That being so, it would have been very doubtful whether any argument about inadequate reasons could have been sustained in any event.
8. Further, a suggestion seemed to be raised that some material, including a prospective new version of a pleading, had been placed before the Magistrate by the respondent. But at the hearing today, the respondent did not identify what that material was. But even if it was put to the Magistrate, the Magistrate was entitled to deal with the application for strike out of the Amended Statement of Claim. The Magistrate did not purport to dismiss the respondent's claim on the basis that his existing pleading was bad in form, but could not be rectified on the basis of evidence that might be available to the respondent through the course of the Local Court proceeding.
9. The findings I have made are dispositive of the case. No ground based upon a denial of procedural fairness or lack of jurisdiction is made out.
10. I find that neither the Summons, nor the grounds identified in Exhibit 1, disclose a reasonable cause of action.
11. Pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules, the proceeding should be summarily dismissed. [His Honour then heard argument on costs]

Costs

1. No reason was given why the ordinary rule, that costs follow the event, should not apply.
2. In its motion, as originally filed, the applicants sought an order for indemnity costs (order 2), arguing that the respondent commenced the appeal recklessly, without reference to the limited nature of his appellate rights from the Local Court's decision. The respondent opposed this application.
3. That the respondent represented himself does not immunise him from an order for costs generally, or an order for costs being payable on an indemnity basis specifically. Clearly from his submissions, in the Local Court and in this Court, containing many references to case law authority, he has had some study of the law. Indeed, as indicated, he said in cross-examination that he had received legal training overseas.
4. There was no indication, however, subject for a qualification, that the applicants served prior notice to him that his appeal was incompetent, which is usually customary as a prelude to the imposition of such order.
5. But by Counsel's written submissions, dated 15 September 2022 (MFI 1), the applicants did effectively put the respondent on notice that the case, as propounded in his summons, was hopeless and indicated that indemnity costs would be sought.
6. In response to this, the respondent did not retreat, but rather, by his written submissions of 13 October 2022, scrambled to find grounds that would satisfy the limited appellate rights. Ultimately, today, he even backtracked on the main point, that the Magistrate had not given reasons.
7. I find that his decision to persevere with his appeal after 15 September 2022 and to agitate, as his main new ground, one which he effectively resiled from when he gave evidence, was unreasonable and warrants a partial order for indemnity costs.

Whether the application should be entertained at all

1. The first question is whether I can even consider this application. The plaintiff said I should not. This question also requires consideration of the procedural chronology.
2. On or about 4 October 2022, being after the matter was last before the Court, but about 2 weeks before the hearing of the summary dismissal application, the defendants filed and served an amended notice of motion, with an affidavit in support from Ms Glover (4 October 2022) (Exhibit B). The proposed amendment sought a gross sum costs order for a specified amount ($17,282.59). That particular application had not previously been flagged, although a general application for costs was contained in the notice of motion. Written submissions in support of the application for a gross sum costs order were prepared by the defendants' Counsel (dated 5 October 2022) (MFI 3).
3. On 8 October 2022 (a Saturday), the plaintiff sent my Associate an email. The gist of the email was to object to the amendment.
4. On 13 October 2022 - a week before the hearing of the summary dismissal application - my Associate indicated to the parties that the applicants' proposed amendment to their notice of motion would only need to be considered if their summary dismissal application succeeded (MFI 5). My Associate also explained that the Court would hear all costs arguments immediately after the Court made its determination on the summary dismissal application. It was pointed out, specifically, that the parties could not expect further adjournments to argue questions of costs. In those circumstances, on the contingency that the defendants might succeed with that application, the plaintiff was invited to serve on the defendants and supply to the Court any evidence he wished to rely upon in opposition to Ms Glover's email of 4 October 2022.
5. The plaintiff argued in his email of 8 October 2022 (and written submissions he subsequently supplied to the Court) that, to that point, no application of this kind had been previously notified. As I understood the content of his email, the plaintiff argued that it would be unfair to allow the defendants to amend their motion to apply for this specific type of costs order. He appeared, by his email, to refer to an exchange in argument on 16 September 2022 as to whether, if the Local Court order for striking out stood, he would be prevented from commencing a new process (in the Local Court). But that argument was irrelevant to the question whether, upon a successful application for summary dismissal of the plaintiff's claim in this Court, the defendants should be deprived of the opportunity to argue an entitlement for their costs to be paid on a gross sum basis.
6. The plaintiff argued in his written submissions (17 October 2022) (MFI 4) that the amendment to the notice of motion was futile, provided an inadequate explanation for delay and would require a further hearing if the motion was successful.
7. In elaboration of this argument, the plaintiff referred to the maximum allowable costs in the small claims division of the Local Court. To even argue for costs of the proceeding as the defendants had done in existing order 2 of their motion was in disregard of the order in the Local Court. If, on the other hand, the defendants were entitled to costs, they had not served a bill of costs in a proper form, so the plaintiff would have the opportunity to consider the proposed bill and either agree to it, or have the matter considered by a costs assessor. Either way, a further hearing was required, unless the Court sets aside the Local Court order for costs, which it would need to explain. It was noted that the defendants had not filed a cross-summons against the Local Court's costs order. There was ambiguity as to what costs order that the defendants' were seeking.
8. There were other submissions more directly responsive to the defendants' application for costs, rather than a particular type of costs order, but I will defer consideration of those until I have addressed the initial argument raised by the plaintiff.
9. It should not be misunderstood that the defendants are not seeking to set aside or vary the costs order from the Local Court. They did not need to file a cross-summons. They are seeking their costs of a successful application for summary dismissal, made in this Court, of an appeal brought from the Local Court to strike out his pleading. Secondly, if the Court is inclined to hear the defendants' application for a gross sum costs order, it is not a necessary precondition that the defendants obtain a draft bill of costs, serve it on the plaintiff and, if the plaintiff does not consent to the costs demanded, have an assessment. The point of the gross sum costs application is to obviate the need for a costs assessment which notoriously, can be expensive and give rise to further disputation; thus ensuring delay.
10. I will now address other points raised by the plaintiff responsive to written submissions of the defendants. He claimed to have addressed 'inadequacies' raised in his appeal. A gross sum costs order would defeat the purposes of s 56 of the Civil Procedure Act and was inappropriate. In the Local Court, the defendants failed to comply with provision of the UCPR by bringing an application to strike out without the Local Court's leave. As I understood him to submit, there was a real issue about a factual dispute in the Local Court.
11. In response to these points, the Court has determined that the appeal is incompetent, even with the new grounds the plaintiff sought to argue. Contrary to the plaintiff's submission, a gross sum order would be consistent with the purpose of s 56 (and also ss 57-60). It would conduce to the quick disposition of a costs dispute. It would conduce to a cheaper disposition of a costs dispute. But these are matters to be considered further below on the merits of the application.
12. The amendment was notified to the plaintiff two weeks before the hearing; plainly, on the contingency, which as a result of today's determination has now materialised, that it would succeed on its summary dismissal application. Further, apprising the plaintiff's objection to the amendment, the Court gave the plaintiff the opportunity to rely upon evidence in opposition to an order that he be subject to an order that he pay the defendants' costs on a gross sum basis.
13. I acknowledge again, that the plaintiff is unrepresented. Countervailing considerations, however, are that: (a) he has some legal training ; (b) the respondent has relevantly always been on notice of the defendants' proposal to seek a costs order against him since they filed their motion and to do so on an indemnity basis; (c) he has had ample opportunity to seek legal representation. Indeed when the matter was before the Court on 16 September, once it was clear that he had reached the end of the line in efforts to obtain representation, it was emphasised that the case would proceed; (d) it is a commonplace in interlocutory motions that amendments are brought. Indeed, there is a rule of Court (r 18.6(1) of the Uniform Civil Procedure Rules 2005) encouraging all applications to be brought and heard together. So long as fair opportunity has been given to the plaintiff to respond to the application, there is no utility to rejecting the application on the procedural basis that it cannot be dealt with incidentally to the application for summary dismissal. That would not stop the defendants from filing a new notice of motion seeking the order that it now brings, by amendment, to its existing motion; and (e) the Court took steps to provide opportunity for the plaintiff to respond to the application on its merits.
14. In those circumstances, it is not unfair for the Court to determine the applicants' application.

The merits of the application for gross sum costs order

1. On the merits of the application, I have considered Ms Glover's evidence, in her affidavit of 4 October 2022 (Exhibit B). This affidavit relevantly detailed the defendants' costs in the proceedings in this Court to date. As at 4 October 2022, they were $17,282 (incl GST).
2. To continue with Ms Glover's evidence, she annexed two tax invoices issued by the defendants' solicitors to the defendants, dated, respectively, 30 August 2022 and 29 September 2022. Ms Glover also set out the rates for solicitors' professional costs and Counsel's fees.
3. I interpolate that those costs obviously did not include Counsel's fees for the preparation of his written submissions of 5 October 2022 or the defendants' legal costs of attending at today's hearing (which has virtually run for the full day). In this regard, Ms Glover set out her professional experience and on the basis of this, estimated likely future costs (from 4 October).
4. She also gave an estimate as to the likely recoverability of costs on an assessment: if costs were payable on the ordinary basis, the defendants could expect to recover 70%; but if the costs were payable on an indemnity basis, they could expect to recover 85% of them.
5. She finally gave evidence that if the costs went to an assessment, the process would likely take 3 months and cost a further $4,000.

Whether the order is appropriate

1. Counsel for the successful defendants argued (MFI 3) that this is an appropriate case for a gross sum costs order. I adopt as correct Counsel's references to the authorities relied upon for such applications which appear at paragraph 3 of his written submissions.
2. The plaintiff's conduct in the proceedings indicated that an assessment process would be prolonged and cause not insubstantial additional costs to be incurred by the defendants. He relied upon Ms Glover's evidence in this regard. That conduct comprised: (a) the commencement of the appeal in this Court in the first place, which lacked obvious merit; (b) the difficult history in attempts to procure representation for him; (c) the plaintiff's earlier efforts to seek adjournments.
3. Other than opposing the applicants' entitlement to bring the application for a gross sum order, the respondent said the circumstances usually giving rise to this type of application did not arise, without elaboration.
4. I do not consider that the underlying merits of the plaintiff's unsuccessful appeal have much weight in the application. That is more relevant to the basis upon which the costs order should be made, which I have commented upon already. A qualification is the small amount of money in dispute in the Local Court claim, which was the subject of appeal. But I accept that the plaintiff's conduct has shown that he is a determined litigant quite willing to argue vigorously for what is, with respect to him, an objectively small amount of money and find that it is very likely that a costs assessment will follow the same tortuous path that this proceeding has. This is the very sort of case in which a gross sum order should be made, to spare the parties a protracted assessment leading to yet further costs being imposed.

Quantum

1. Counsel submitted that Ms Glover's evidence of the costs incurred to date was such that the Court could take confidence in arriving at an appropriate sum based on the materials that was before the Court. If the Court did not accept that costs were payable on an indemnity basis ($17,240), as the defendants submitted it should, it should do so on the ordinary basis ($14,197), but even then the amount awarded fell within the Court's discretion.
2. The respondent did little more than offer a generalised conclusion that the costs claimed were excessive. He did not specify how.
3. I accept the reasonableness of the rates for lawyers identified by Ms Glover. On an application of this kind, it is acknowledged that the Court's role is not that of a costs assessor. Instead a broad-brush approach is appropriate. The invoiced amounts to date and the estimated future costs appear appropriate; although I think there might be some further discount to address contingencies.
4. Further, in my view, consideration needs to be given, when assessing the quantum, to consider the nature of the proceeding and its complexity. This proceeding has substantially been about a challenge to the competency of an appeal from the Small Claims Division of the Local Court to this Court. It is a purely procedural decision which says nothing in itself about the parties' respective rights or liabilities. True it is that it has gone on longer than would have been expected or hoped for, and that (I say with no disrespect to the respondent) has been a not uncommon incident when represented litigants are opposed to unrepresented ones. But it is also true that the effect of my determination is to effectively terminate this appeal without a final hearing.
5. As Mr Ball accepted, it is relevant to any costs order to consider the nature and complexity of the proceeding. That being said, considering other contingencies, I grant the order in a sum less than the applicant seeks.

Orders

1. Pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), the proceeding is summarily dismissed.
2. The plaintiff is to pay the defendants' costs: 1. on the ordinary basis up to 15 September 2022; and 2. on an indemnity basis thereafter.
3. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the defendants' costs in the specified gross sum of $13,000.00.

Endnotes

1. An appeal from this decision was dismissed: Eliezer v Sydney Water Corporation [2021] NSWCA 300
2. Saqa v Bainivalu [2005] NSWSC 1091 per Michael Grove J at [20]
3. An appeal from her Honour's decision was dismissed: Murphy v Arnoldus-Lewis [2009] NSWCA 142, without deciding the point about lack of jurisdiction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2022