McCorkindale v Delamont [2002] NSWSC 540 | Case summary

JUDGMENT (Appeal from Local Court: denial of natural justice; opportunity to make submissions) 1 MASTER: By summons filed 30 May 2002 the plaintiff seeks an order pursuant to Part 69 (2A) of the Local Court (Civil Claims Act) 1970, an order setting aside the judgment by Moon LCM dated 15 May 2002, and an order that the Small Claims Division statement of liquidated claim in matter No 167/01 in Young be transferred to Sydney and be determined by a Magistrate in Sydney. The plaintiff relied on the affidavits of Melissa Fitzgibbon sworn 29 May 2002 and 11 June 2002. The defendant relied on the affidavit of David Thornton Gray sworn 6 June 2002. 2 The defendant filed a notice of contention which raises the following issues; firstly, the defendant submitted that he is entitled on the evidence of the verdict of the lower tribunal; secondly, the hearing was conducted in accordance with the practice notes of the Chief Magistrate of the local court; thirdly, that both parties had an equal opportunity to call evidence; fourthly, that both parties had an opportunity to respond to each others evidence and to closing submissions; fifthly, the plaintiff had an advantage to the defendant's proposed submissions a day earlier than the hearing and the opportunity to consider and respond to them in writing if required; sixthly, the plaintiff took the opportunity to respond to the defendant's submissions by addressing the court in responding to the same and seeking leave out of time to file a defence to the cross claim; seventhly, the plaintiff had the benefit of consent for filing a defence to the cross claim out of time; eighthly, that the plaintiff had the benefit of advice from the Magistrate to the effect that he was hearing submissions and if there was nothing further he would consider the evidence and issue a decision through the registry that day; and ninthly, the plaintiff has not pointed to any matter of fact or law that he was prevented from raising with the Tribunal by reasons of procedural defect. 3 The issue is whether at the informal hearing before the Magistrate at the local court Young, the plaintiff's solicitor had a reasonable opportunity to make submissions on behalf of her client, the plaintiff.

"Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet." 6 In Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, 9 May 2002 O'Keefe J at para 20 held that: "The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Court. This is clear from the nature of the function to be performed by that Tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act." 7 In White v Ryde Municipal Council (1977) 2 NSWLR 909 Reynolds JA, with whom Moffitt P agreed, said: "As a general proposition, it is plain enough that he who decides must hear. However, this must be understood in the sense that the decision maker has before him the evidence and submissions of those entitled to be heard. It is by no means a universal requirement that the decision making body must see and hear witnesses … So much appears from the leading authorities on this subject: Local Government Board v Arlidge (1915) AC 120 and Jeffs v New Zealand Dairy Production and Marketing Board (1967) 1 AC 551." (supra at 923) 8 (See also Jet 60 Minute Cleaners Pty Limited v Brownette (1981) 2 NSWLR 232 per Hunt J) 9 The requirements of natural justice may fluctuate and depend upon the particular circumstances of a given case or class of case. However it is clear that natural justice or procedural fairness requires that both parties be given a reasonable opportunity to adduce evidence and make submissions in relation to the issues in the proceedings in the Small Claims Division of the local court. 10 On 3 October 2001 the proceedings were commenced in the Small Claims Division, local court, Young between Harry John Delamont & Margaret Anne Delamont t/as Mad Harry's Hardware (as plaintiffs) ats Garry Frederick McCorkindale & Christine Mary McCorkindale t/as Timber Accents (as defendants). On 5 December 2001 the defendant filed a notice of grounds of defence and cross claim. Ms Melissa Fitzgibbon, solicitor of McCabe Partners Lawyers acted for the plaintiff and Mr David Thornton Gray, solicitor of Gordon Garling Moffitt, acted for the defendants. 11 On 5 March 2002 the matter was listed for an informal hearing on 15 May 2002 at 9.30am in the local court at Young. The civil claims case management order in the Small Claim Division states that "At the hearing, the parties or their legal representatives should be in attendance to make comments, present arguments and to make final submissions." - see Practice Note 3 of 2001. 12 On 14 May 2002 (the day before the informal hearing was to take place) McCabe Partners Lawyers faxed a notice of grounds of defence to a cross claim to Gordon Garling Moffitt. On 14 May 2002 Ms Fitzgibbon spoke to the court clerk at Young concerning the procedure for an "informal hearing". She was told "you go into chambers with the magistrate and submissions are given in chambers". At 4.43pm on 14 May 2002 Gordon Garling Moffitt faxed closing written submissions to McCabe Partner Lawyers. In response the plaintiff's solicitor faxed Mr Gray informing him that she wished to be heard in relation to the defendant's written submissions. The defendants' submissions were handed up to the court. 13 On 15 May 2002 at 9.30am Ms Fitzgibbon, solicitor, appeared on behalf of the plaintiff. Mr David Thornton Gray solicitor appeared on behalf of the defendant/cross claimant before Magistrate Phil Moon in court. Ms Fitzgibbon recalled addressing the court and saying words to the effect that "The plaintiff is seeking to file a defence to cross claim at this very late stage, there aren't any surprises here for the defendant as these are matters raised in earlier affidavits." She recalled the solicitor for the defendant, Mr Gray consenting to the late filing. There is no dispute that this occurred. 14 According to Ms Fitzgibbon, the Magistrate, Mr Moon, asked Mr Gray whether there had been a response to his taking issue as to admissibility of his written submissions and the relevance of certain evidence. Ms Fitzgibbon believes that she said words to the effect of "No we haven't had an opportunity to respond." Ms Fitzgibbon is not sure what Mr Gray's rely was to this question as she thinks they may have spoken at about the same time. Mr Gray also recalls being asked by the Magistrate whether or not the plaintiff had responded to the fact that he had taken issue as to the admissibility and the relevance of some of the plaintiff's evidence but does say that the words "written submissions" were used by the Magistrate. However the relevance of certain evidence that the Magistrate referred to was contained in the written submissions. Mr Gray cannot recall whether it was the Magistrate asking both solicitors to respond to that question or not. Mr Gray did respond and indicated that the plaintiff had not responded to the points that he had raised. 15 Ms Fitzgibbon recalls the Magistrate then saying that if there was nothing further then he would retire to consider the evidence. Ms Fitzgibbon does not recall him saying the words that if you have nothing further, nor the Magistrate saying anything about issuing a decision through the registry in the afternoon. Mr Gray recalls the Magistrate indicating to both solicitors that if they had nothing further, then he would determine the matter after considering the evidence and issue his decision through the registry in the afternoon. 16 Ms Fitzgibbon then left the bar table, spoke to the plaintiff and his wife briefly and then made an enquiry of the court's clerk. She said words to the effect of "when do I get called into chambers?" The clerk replied "He's in chambers now, we'll telephone you." The defendant had claimed $2,167.88 in his cross claim. On the afternoon of 15 May 2002 Magistrate Moon proceeded to hand down judgment in favour of the defendant for the sum of $2,167.88 plus interest from 5 December 2001 totalling $85.76 together with costs of $500 totalling $2,753.64. 17 The plaintiff submitted that he was denied natural justice when the defendant's solicitor faxed their written submissions at 4.43pm on 14 May 2002 and his solicitor was not requested or permitted to provide oral submissions. 18 Mr Gray has a recollection that the Magistrate said that if they had nothing further he would determine the matter after considering the evidence and issue his decision through the registry in the afternoon, whereas Ms Fitzgibbon does not recall these words being uttered by the Magistrate. At the informal hearing the plaintiff's solicitor requested that the defence to the cross claim be filed. Both Mr Gray and Ms Fitzgibbon agreed that the Magistrate was informed that the plaintiff had not responded to the points he (Mr Gray) had made in his written submissions. After that I am satisfied on the balance of probabilities that the Magistrate said that if they had nothing further he would retire to consider the evidence and issue his decision in the afternoon. While I have some sympathy for the plaintiff's solicitor it is my view that she was given a reasonable opportunity to make submissions but either misunderstood or did not properly hear what the Magistrate said. The Magistrate cannot be expected to anticipate that a solicitor actually wished to say something further if there is no indication made by that solicitor.

McCorkindale v Delamont

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