Local Court Judgment
26The submissions having been made, the Magistrate took a short adjournment, and then permitted the counsel for the plaintiff, Mr Perri, to put some further submissions. After some further discussion, which identified the broad range of debate between the experts, it seems that the Magistrate came to give a form of a judgment. The judgment is a little discursive and it is hard to find the reasons for his Honour's decision. However, it is necessary to record such part of that discursive judgment as will enable this court to give a ruling with respect to the issues raised.
27His Honour said this:
"But look, rule 31(1)(9) was put in there for a specific reason. I discussed it briefly with my colleagues over the break. 'This is my take on the rule, do you agree', it was unanimous. The reasons that I stated before for my understanding of the rule, I'm not going to repeat, you both heard them.' " (sic)
28The reference to what he had earlier said was to an exchange about r 31.19 of the UCPR to this effect:
"His Honour: It is not discretionary.. It's not discretionary. It's hard and fast. It's hard and fast. You see, the idea is, if you want to produce expert evidence, then you give the other side notice of it and you get their report, and they get their expert, as they would have to do from a tactical point of view, and then there's going to be a review."
29His Honour then referred to the decision of Bilyak to which his attention had been drawn. He then set out the provisions of r 31.19 of the UCPR and noted that Hallen AsJ (as his Honour then was) had said in Bilyak that:
"Accordingly, pursuant to the rule, unless the court otherwise orders the expert evidence may not be adduced at a trial."
His Honour continued his judgment:
"So not unless the Court otherwise orders, it's at trial. As I read that clause, 'otherwise orders' it's some other point in time. It's a [re]view time or a mention time. It's not the defendant's job to alert the plaintiff of any defects in non-compliance of the rules and I would have thought that in a case such as this that the amount of the claim is strategically linked to the expert evidence of the valuation of the vehicle." (sic)
30Having discussed some issues relating to the particular valuation, Maloney LCM went on:
"If I, and I must comply with the rule myself it's not discretionary, if you haven't complied you haven't complied. The rule is there for a specific purpose. You have to jump your hurdles, each and everyone of them procedurally on your way to trial. You've virtually got to qualify to run in the Olympics, you've got to do the qualifying times. If I, as is should, comply with that rule myself and exclude the plaintiff's expert evidence then the only expert evidence that I've got is the defendant's expert evidence if he so chooses to file it which he has or will in court because I'm going to allow the filing of it in court. I am going to allow your filing of it too but not today because I am turning today into another review date and I am giving direction[s] so that the plaintiff isn't prejudiced. It may well prejudice the defendant as he sees it. Well if the other fellow isn't going to comply with the rules why should the magistrate bend over backwards for him? Well fair play determines that. I firmly believe that when parties come to Court and this is the People's Court, not the District Court, it used to be the District Court, it is the Local Court nowadays, it's the People's Court. Every person should have his or her say. So that they can go away and say I played strong, I done good in the words of Jack Gibson. I did the best I could, I'm proud of myself but I lost, what more could I do? Or I didn't win as much as I thought I'd win.
That is why I'm going to let each party go away. You might suffer and will suffer a cost penalty today for not complying with the rules. But we can hold that over until the end of the matter in any event." (sic)
31There was then a further discussion between the Magistrate and the lawyers during which further orders were sought and made. The further orders included the filing of a further Amended Statement of Claim and that the parties had leave to file various expert evidence in court. The proceedings were then stood over for a further review date. The Magistrate ordered the plaintiff, Mr Perri, to pay the defendant, Mr Kahwach's costs.
32Insofar as there are any reasons with respect to the costs order, they seem to be contained within the following portion of the judgment and discussion which occurred:
"HIS HONOUR: That is why I'm going to let each party go away. You might suffer and will suffer a cost penalty today for not complying with the rules. But we can hold that over until the end of the matter in any event.
EL-HANANIA: Your Honour, I would want to be heard with regards to that. I mean there are two issues I want to be heard against with regards to, firstly, although this is the People's Court I need a judgment with regards to that because my friends have not complied with the rules. It was our smart tactics with regards to this.
HIS HONOUR: I'm giving you a costs order.
EL-HANANIA: I know that.
HIS HONOUR: Do you want it now?
EL-HANANIA: Yes.
HIS HONOUR: You want him to pay within 24 hours?
EL-HANANIA: Yes, thank you.
HIS HONOUR: No.
EL-HANANIA: No, 28 days."
33Maloney LCM ultimately ordered that the plaintiff (Mr Perri) was to pay the defendant's (Mr Kahwach) costs "for proceedings today".
34The proceedings brought by Mr Perri sought leave to appeal specifically against that part of the Magistrate's order that, the hearing of the plaintiff's claim be adjourned and that the plaintiff pay the defendant's costs of the hearing of 15 March 2013. Mr Perri submitted that the Magistrate had erred in concluding that the plaintiff had not complied with r 31.19 of the UCPR; he had erred in concluding that the Court had no discretion to permit the plaintiff to adduce expert evidence at the hearing, and had erred in holding that the plaintiff should pay the costs of the proceedings on that day because of a failure to comply with r 31.19 of the UCPR.
35In oral submissions, counsel for Mr Perri also pointed to the failure of the Magistrate to refer to the provisions of ss 56 and 61 of the Civil Procedure Act and Part 2 of the UCPR, as being relevant to the erroneous interpretation of r 31.19 of the UCPR.
36As well, counsel for the plaintiff submitted that such reasons as were given with respect to the costs order were not adequate and did not constitute the discharge of the Magistrate's obligations to give reasons.
37It is convenient to deal with the arguments on this Summons for leave to appeal first.
38It is quite unclear why the Magistrate adjourned the proceedings. He gave no reason for doing that, simply stating, as I have noted earlier, that in the face of all the submissions, he was converting the matter from a hearing date to a review date or directions hearing.
39Given the state of preparedness for hearing and the broad nature of all the submissions which were being made to the Magistrate, and no doubt having regard to the other commitments which the Magistrate had that day in the Local Court, I am unable to see how such a discretionary decision as the adjournment of the proceedings could be subject to attack. However, it is unnecessary for me to form any concluded view on that issue because it is necessary for Mr Perri to first obtain leave to appeal against that decision.
40A decision to grant an adjournment is a decision in the exercise of the Court's undoubted discretion with respect to a matter of practice and procedure. The adjournment has been granted and nearly 12 months has passed since that time while these proceedings have been on foot in this Court.
41The fact is, whether the decision was right or wrong, the adjournment has been granted and the parties have had the benefit of the time that has passed since then to put their cases in order. There is little point in this Court forming any view as to the correctness or otherwise of the order for adjournment. Even if the adjournment was erroneous, there is no order which this Court can make which can effectively restore the position to that which existed before the erroneous order was made. Accordingly, I would not be prepared to grant leave to Mr Perri to appeal to this Court against such an order. There is no practical utility in a grant of leave.
42Insofar as the order for costs is concerned, I am satisfied that leave should be granted. I readily accept the sum in issue is not large, however, as it appears to me, the Magistrate fell into serious error. There are a number of reasons why that is so.
43The first and principal reason is that he did not give any adequate reasons for his decision. A bald statement, even in the context of all which had gone before, that the plaintiff had not complied with the rules is not, of itself and without more, adequate reason for the making of the decision.
44Before making a decision with respect to a claim for an order for costs, a court is obliged to consider what has happened, as a matter of fact; the consequences in law for the case; the respective contributions to that position by the parties, if any; and what the interests of justice require.
45The Magistrate's reasons do not suggest that he gave any consideration to those issues whatsoever. Rather, he simply saw that, if a party had failed to comply with a rule, then that was, without more, a basis for making an order for costs. That may be, in some circumstances, a sufficient basis. However, in the circumstances of this case, before that could be regarded as a sufficient basis, the Magistrate had to consider all of the other matters to which I have pointed and either have regard to them if relevant, or to set out why they were of no relevance. This he failed to do in giving his inadequate reasons.
46The second matter is that it seems to me that the Magistrate fell into error, which can be regarded as an error of law, when he considered r 31.19 of the UCPR in isolation from, and without regard to, the provisions of ss 56 and 61 of the Civil Procedure Act and the provisions of r 2.1 of the UCPR.
47The overriding purpose fixed by s 56 of the Civil Procedure Act is, as has been said, to ensure that the court facilitates the just, quick and cheap resolution of the real issues in the proceedings and further, that there is an obligation on a court to seek to give effect to the overriding purpose when it exercises any power given to it by the Act or he UCPR or when it interprets any provision of the Act or the UCPR.
48The interpretation of r 31.19 of the UCPR by the Magistrate, as being obligatory on the court and without the provision of any discretion, could not rationally have been arrived at without the Magistrate considering whether such an interpretation gave effect to the overriding purpose in s 56 of the Civil Procedure Act. This he wholly failed to do.
49In so saying, I should not be taken to criticise the learned Magistrate. Neither of the lawyers appearing before him drew his attention to ss 56 or 61 of the Civil Procedure Act. Neither of the lawyers appearing before him drew his attention to Part 2 of the UCPR.
50It has been said on many occasions, over and over in this Court, that the rules of court are not the masters of the litigation, they are the servants of it. They are there to assist to ensure that in the interests of justice and the furtherance of the overriding purpose, matters are prepared properly for hearing and the parties are in a position to deal adequately with the matter.
51The third error which the Magistrate made was, that he accepted, contrary to the actual facts, the submissions of the solicitor for the defendant, Mr Kahwach, that the Court had not given any directions about serving expert reports, whereas the Local Court had in fact given directions with respect to the filing of expert evidence on two occasions in 2012 in the way to which I have earlier referred.
52Accordingly, as a matter of fact, directions had been given pursuant to r 31.19 of the UCPR. If there was any real point of objection, which the solicitor for the defendant had available to him, it was that directions having been given, there had been a failure to comply with those directions and consequently expert evidence was not available to be adduced by the plaintiff, Mr Perri.
53However, such objection was not made to the Magistrate. Rather, the solicitor for the defendant took the view that the appropriate submission to make was that no such directions had been given. As the evidence to which I have earlier referred demonstrates, and is unchallenged in this Court, those directions had been given and applied to both parties. The plaintiff had complied, ultimately, with the directions, the defendant had not.
54However, as this is arguably, only, an error of fact and therefore would not, standing alone, be sufficient to enable the relief claimed to be allowed, it can therefore be put to one side.
55I am persuaded that leave to appeal to this Court in accordance with s 40 of the Local Court Act 2007 ought be permitted with respect to the costs order which was made, as I have said, erroneously in the Local Court and that costs order ought be set aside.
56I turn then to consider the Amended Summons filed in this court by Mr Kahwach. That summons also seeks leave to appeal and, when filed this morning, sought the following orders:
"3. The matter be remitted to the Local Court for an expedited hearing on the parties' evidence, as served, save all expert evidence;
4. The learned Magistrate order with respect to costs, the order be amended to require the costs to be paid forthwith as agreed or upon 28 days of assessment."
57The basis for those orders was that Mr Kahwach contended that the Magistrate erred in law by:
"Making an otherwise order pursuant to UCPR 31.19(3) with respect to the expert report of Rehayem and Goodman, experts, on the day of the Local Court hearing."
58It was also contended that Magistrate Maloney erred in law by vacating the hearing date on his own motion. For reasons consistent with those which I have earlier given, the hearing date having been vacated, I would not be prepared to grant leave to appeal to this court with respect to the decision vacating the hearing date. Any such attack on that decision is moot and no point is to be served by the granting of leave to deal with that.
59In this Court, counsel for Mr Kahwach submitted that the orders as formulated would not be pressed. However, he submitted that the Court ought remit the matter to the Local Court with a recommendation for the hearing to be expedited. It was unclear to me whether counsel continued to submit that there should be a restriction in the Local Court on the evidence which was able to be adduced below. I have taken it to be that counsel continues to seek such an order.
60Clearly, the matter must be remitted to the Local Court because it is that court which must conduct the hearing. Leave is not required to appeal against any Local Court's order so as to enable an order of this Court that the matter be remitted to the Local Court. That is a submission which could be made on the hearing of the Summons for Leave to Appeal of Mr Perri. As I have said, the order with respect to costs was not pressed.
61That leaves the question of whether or not there should be an expedited hearing in the Local Court as part of a recommendation by this court and whether the proceedings in the Local Court ought be confined to the evidence that the parties have served, save all expert evidence.
62I am not prepared to grant leave to Mr Kahwach with respect to the orders which he has sought. Whether or not the Local Court should expedite the hearing of the proceedings is a matter entirely for it. No application has been made to it for expedition. No reason was put before this Court as to why there ought be expedition, save for the fact that the proceedings had been on foot in that court since December 2011. This Court is simply not in any position to judge the state of the list in the Local Court and whether this matter warrants any priority over any other matter. There is simply no basis for an order or even a recommendation with respect to that. Leave to appeal to achieve relief of this kind ought to be refused.
63The second matter which Mr Kahwach seeks to have this Court address is to make an order about practice and procedure. Mr Kahwach seeks, in this Court, an order restricting the nature of the evidence which is to be allowed to be heard by the Local Court. That is an order with respect to practice and procedure of a future hearing. It is a matter of the discretion of the Local Court as to what evidence it will allow and when. No basis was disclosed as to why such an order ought to be made, either in this Court or in the Local Court. Having regard to all that has occurred, I can see no merit in, nor basis for, making such an order.
64Insofar as orders were made on 15 March 2013, which permitted evidence to be filed by both parties of an expert nature, no error of law or of the exercise of the discretion to make those orders has been demonstrated. In all of those circumstances, I am not prepared to grant Mr Kahwach leave to appeal with respect to his Amended Summons which will be dismissed.