The application of these principles to the grounds of appeal
By way of general overview, it is clear from the whole of the transcript that the Assessor carefully and courteously sought to elicit from the plaintiff both the nature of her defence and the extent of her evidence. I note the plaintiff consistently acknowledged she owed money to the defendant (T 14 - 15) and was essentially asking the Assessor to determine how much.
Ground 1 of the appeal asserts that the defendant's legal representative said she did not know exactly what amount was owing and what amount had been paid. However, this is not what was said; moreover, the affidavit of Mr Bagala sets this information out clearly, by reference to the date, invoice number and amount for each of the items as well as details of payments made and to which invoices those payments were applied. The plaintiff's response was that she no longer had many of the invoices in question (T 18). The transcript demonstrates that the Assessor carefully considered each of the claims made by the plaintiff in particular some discrepancies which required a ruling.
Ground 2 asserts that, rather than work out the sum involved, the Assessor merely stated that the full sum must be owing because it was claimed to be unpaid. This is contradicted by the contents of the transcript. In fact, the Assessor went to considerable lengths to consider such minor issues as whether one receipt was for a bunch of sweet peas or for a bunch of freesias.
Ground 3 asserts actual bias against the Assessor. I was unable to find anything in the transcript demonstrating bias of any kind, let alone actual bias, and the plaintiff was unable to point to any specific extract of the transcript in question. There were occasions when the Assessor explained to the plaintiff how the legal system worked, how she needed to provide evidence and how she needed to state the amounts she was satisfied she had paid with some specificity (T 34 - 35), but this is advice of the kind commonly given in such tribunals, especially where there is a litigant in person requiring assistance.
Ground 4 asserts that the Assessor disregarded the evidence. What the Assessor in fact said was that, with the exception of the transaction involving the sweet peas, there was no evidence from the defendant (such as bank records, invoices or some other form of written or oral evidence) to make out a successful defence; all that the plaintiff had done was to make generalised assertions. In circumstances where Bagala Bros provided detailed records which supported their claim, the Assessor was of the view that the defence could not be made out. Looking at the material provided to the Assessor, this is a fair and accurate description of the evidence.
Ground 5 is an attack on the quality of the evidence provided by Bagala Bros; however, the company was entitled to rely upon its business records as proof in relation to each of the transactions in question.
Ground 6 is a misunderstanding of what the Assessor said. She was not saying that the result was a matter for the Registrar; she was correctly informing the plaintiff that the plaintiff could make an application to the Registrar to pay the judgment debt by instalments, which was important and relevant information for the plaintiff.
[2]
Conclusions concerning the grounds of appeal
Each of the grounds of appeal must fail.
[3]
Costs
The defendant seeks an order for indemnity costs in a gross sum costs order pursuant to s 98 of the Civil Procedure Act 2005. The costs on an indemnity basis are as follows:
Solicitor/client costs from 9 September 2021 to 31 March 2022: $ 5,198
Estimated further costs to conclusion of the hearing: $ 1,815
Total $ 7,733
If such costs were awarded on a party/party basis, that would be 70% of this sum, being $5,413.10.
In Mahaffy v Mahaffy (2018) 97 NSWLR 119 at [275], Payne JA stated that s 98 conferred on the court a wide discretion with respect to costs, in relation both to the making of an order for costs on an indemnity basis and the allowance of those costs in a gross sum costs order.
The circumstances relied upon for an order for indemnity costs are that the plaintiff's appeal was always "doomed to fail" (submissions, paragraph 16). The plaintiff has caused the defendant to incur unnecessary legal costs and has failed to pay any amount (including any undisputed amount) of the judgment sum.
While I agree that the appeal is misconceived, it was evident to me that this arose from misunderstandings by the plaintiff of the role of the court in relation to assisting her to establish the amounts which were owing. She was frank in her admissions both to the Assessor and to me that she owed money, and was expecting assistance with the determination of how much. This is not, in such circumstances, an appropriate matter for costs on an indemnity basis.
As to the sum to be awarded on a party/party basis, I accept the estimate of 70% of the solicitor/client total, but note that a further discount (Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863) should also be made to accommodate the potential reduction on assessment as well as the advantage of speed and finality of a gross sum costs order. Taking that into account, the sum I propose to award of costs pursuant to s 98 is $4,000. I have made an order for payment by instalments as part of that order, at the plaintiff's request, having regard to my discretionary powers under s 98.
I thank Mr Friedlander for his helpful submissions and for his assistance in the conduct of the hearing of this matter, in circumstances where the plaintiff was clearly in a distressed state.
[4]
Order:
1. Appeal dismissed.
2. Pursuant to s 98 of the Civil Procedure Act 2005, the defendant's costs of the appeal are assessed in a gross sum of $4,000 and the plaintiff is to pay in instalments of $1,000 per month over the next 4 months.
[5]
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: 02 May 2022
While s 39(1) permits the bringing of an appeal to the Supreme Court on a question of law, the jurisdiction of this court is much narrower. Section 39(2) provides:
"39 Appeals as of right
…
(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness."
The Act carefully distinguishes between errors of law, errors of mixed law and fact, appeals requiring leave of the Supreme Court (in ss 39(1) and 40) and the very limited right of appeal to this court in the specific circumstances set out in s 39(2). The right of appeal from the Small Claims Division to this court does not involve errors of law or errors of fact, or errors of mixed fact and law, but only orders made where there has been a lack of jurisdiction in the court below (which is not claimed here), or there has been an asserted denial of procedural fairness.
Fairness of procedure will depend upon the nature of matters in issue, including fairness in permitting a party a reasonable opportunity to present its arguments and evidence: Kioa v West (1985) 159 CLR 550 at 585.
As is set out in s 35 of the Act, proceedings before the Small Claims Division are conducted in a very informal fashion, and this is a relevant factor to take into account. In addition to the degree of informality arising from the nature of the court hearing itself, the Assessor must also take into account the needs of a litigant in person, while at the same time seeking to preserve the balance between the parties referred to by Bell P (as his Honour then was) in Duraisamy v Sydney Trains [2019] NSWCA 269.
There are two general requirements for procedural fairness. The first of these is the fair hearing rule and the second is the rule against bias. The fair hearing rule requires a decision-maker to afford a person an opportunity to be heard before making a decision affecting their interests. Such issues are generally determined by careful analysis of the transcript. The issue of bias requires consideration of the factors set out by the Court of Appeal in Poulsen v Harrison [2021] NSWCA 23 at [44] - [47].