HIS HONOUR: I have before me a motion seeking to vacate the hearing of the appeal in this matter. Filed in support of that motion is an affidavit of Mr Zubin Hiramanek of 21 June 2024 and a further affidavit of Mr Hiramanek of 24 June 2024. The motion is opposed. The respondent in opposing the motion read an affidavit of Mr Demos of 24 June 2024.
The appeal in this matter is listed before me for hearing today. The appeal is concerned with a decision in the Local Court and is brought pursuant to the Local Court Act 2007 (NSW) which allows for an appeal from that Court to this Court as of right in relation to the question of law, s 39 Local Court Act, or by leave in relation to the question of mixed fact and law, s 40(1). Noting additionally, as relevant here, that if the appeal relates to an order as to costs leave is required, s 40(2).
The applicant was the plaintiff in the Local Court. The respondent was the defendant in the Local Court. As a result of the proceedings in the Local Court the applicant obtained a verdict and judgment for damages in the sum of $7,000 plus interest in the sum of $941.30. The applicant was additionally ordered to pay 95 percent of the respondent's costs as agreed or assessed on the ordinary basis.
The applicant by his amended summons seeks orders setting aside the orders of the Court below with respect to the award of damages and the award of costs. In substitution of those orders the amended summons seeks:
"4 Order that there be judgment against the Respondent defendant in favour of the plaintiff Appellant in accordance with the amounts set out in the Conclave Report dated 4 August 2022 or in the sum of $8,900.30 alternatively in accordance with the amounts specified in the evidence of the Respondent's/Defendant's expert Gavin Black, as filed in the proceedings below. $7,372.46 including GST plus prejudgment interest under section 100 of the Civil Procedure Act 2005 (NSW).
5 Order that the costs order made by the Court below on 24 November 2023 be set aside.
6 Order that the Respondent pay the Appellant's costs of the proceedings below and this Appeal on an indemnity basis or in the alternative on the ordinary basis."
The order sought in relation to the award of damages in referring to the amounts set out in the "conclave report dated 4 August 2022 or alternatively in the amount specified in the evidence of respondent/defendant's expert Gavin Black" is not entirely clear. On my reading of the material it would appear that what is sought is an amount of $8,699.69. With respect to the order in relation to costs, the amount involved is significantly more substantial.
I was informed this morning that the respondent's costs in the Court below were in the order of $150,000. There has been no assessment in relation to that figure, but it can be accepted that the stakes involved, having regard to the award of costs, are reasonably substantial and certainly far more substantial than the claim with respect to damages.
The litigation arises out of a relatively straightforward motor vehicle accident. The respondent's vehicle collided with the rear of the applicant's vehicle resulting in some damage. The applicant's statement of claim filed in the Local Court sought an award of $19,032 for the costs of repairs.
Ultimately, the applicant's claim became one for $16,810.42. That revision was based on the report of an expert retained by the applicant. That expert determined that figure to be the fair and reasonable reinstatement costs in relation to the damage to the vehicle.
With respect to the determination of that claim, there were agreed facts before the Court: There was an agreed fact with respect to the collision; the liability of the respondent with respect to that collision; that the vehicle was repaired between 20 and 27 April 2021; that the repairs reinstated the vehicle to its pre-accident condition; and that a tax invoice was issued shortly afterwards with respect to those repairs in the amount of $19,032.24.
The respondent relied on her own expert. His Honour in his judgment at para 45 observed that the respondent's expert's opinion as to the reasonable costs was an amount within the range of $5,000 to $8,537.96. His opinion as recorded by his Honour was that the invoice recorded overservicing and inflated costs outside the industry range.
The claim began in the small claims division of the Local Court. It was transferred to the General Division of that Court as a result of an indication that there was an issue as to the legitimacy of the original invoice for the repairs, and that that issue was better determined in the General Division. It was the respondent's case that the applicant's expert could not be accepted because that expert had based his opinion on the invoice without having inspected the vehicle in order to determine what work had in fact been done and the value of that work. The respondent's expert by contrast had in fact performed that task and consequently formed a view that the reasonable costs were significantly less than those claimed by the applicant.
The hearing in the Local Court took five days. The magistrate accepted the respondent's expert over the applicant's expert. Judgment was given in the terms I have indicated. Significantly, despite having brought an appeal to this Court, the applicant does not press his original claim. That is, the applicant does not on the appeal, suggest that his expert ought to have been preferred. Rather, the applicant seeks to litigate in this Court errors, or at least asserted errors, with a view to establishing that the judgment in his favour ought to have been at the top of the respondent's expert's range.
The result is that the appeal seems to be, with respect to the damages, about an amount, of $1,669.96, together with interest of $224.57. That is a very small amount dwarfed by the costs involved in this continuing litigation. Having observed that the contest in relation to damages is over a relatively small amount, it must be accepted that the stakes in relation to the dispute in relation to costs are significantly higher.
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Basis on which the adjournment is sought
Mr Hiramanek is the solicitor for the applicant. In his affidavit of 21 June 2024, he states that the adjournment is sought on the basis that counsel has not had time to prepare reply submissions. It was not indicated in that affidavit that counsel was not briefed to appear on the hearing.
In the further affidavit of 24 June reference is made to particular counsel having been briefed to prepare the reply submissions. I was informed this morning that that counsel is briefed in the matter generally, but is not available today. No explanation has been given as to why the applicant's solicitor briefed counsel who was not available to appear on the hearing of the appeal. In the result, the applicant's solicitor has briefed counsel who appears solely on the application for an adjournment. Ms McNeil is not briefed with respect to the substantive matter. It is not clear why Ms McNeil was not briefed in relation to the substantive matter. It is not clear why anything that might have been set out in the reply submissions could not have been put orally today.
The entire background leading to the application for adjournment is entirely unsatisfactory. It seems that after three directions hearings, at a fourth direction hearing held on 28 February 2024 the matter was set down for hearing on today's date with orders made to ensure that the matter would be ready to proceed today. The orders were in that regard, that the plaintiff was to serve his submissions by 10 April 2024, the defendant was to file and serve submissions by 22 May 24, the plaintiff was to serve submissions in reply by 11 June 24, with the joint Court book to be filed and served by 18 June 2024.
The applicant's submissions were filed and served on 1 May 2024, three weeks after they were due. They were prepared by Mr Hiramanek. In his affidavit he simply states that "unfortunately submissions were late and took longer to prepare than expected". No further explanation was forthcoming.
The timetable allowed six weeks for the respondent to prepare its submissions in response to the applicant's submissions. That would have resulted in a due date of 12 June 2024. The applicant's solicitor, by email on 11 June, emailed their respondent's solicitor requesting that those submissions be served by the next day, 12 June 2024. Communications from the respondent's solicitor had indicated that the submissions were on track to be prepared by the end of that week, that is Friday 14 June.
Ultimately, that did not transpire and the submissions were filed and served on 18 June 2024. That was four weeks after the date set in the orders but more relevantly, one week later than the six weeks that had initially be been allowed.
In contrast with the applicant's affidavit, the affidavit of the respondent's solicitor sets out in some detail the reasons as to why the submissions were delayed. There was no challenge to that material.
I accept that in part the delay was a result of counsel and his solicitor having allocated time in their diaries at an earlier point when it was expected the applicant's submissions would be received, and that following that delay there were various personal difficulties experienced by counsel and his solicitor. It would seem despite some significant issues, very significant efforts were made by counsel and his solicitor in the interests of their client to provide submissions which, as I say, was ultimately done on 18 June. It is in that context that the applicant's solicitor makes the application indicating that sufficient time was not available for the preparation of reply submissions.
The first observation that might be made, perhaps repeating myself, is that the provision of reply submissions was not a pre-condition to the appeal proceeding. Further, if counsel had been briefed to appear at the appeal it may have been that in preparing oral submissions brief submissions could have been prepared and have been available at least by today.
In the result, simply based on that timetable, the applicant's solicitor has sent counsel here today briefed only on an adjournment application. No counsel briefed on the substantive matter is present, nor is the applicant's solicitor. I am told that the applicant's solicitor, despite having had this matter in his diary for some considerable time is, engaged in another matter. It is entirely unclear from all of the material why it is that counsel was not briefed earlier. Nor is it clear as to why, counsel could not be located and briefed at the hearing today, even if reply submissions could not be prepared. Indeed, it is not clear why Ms McNeil was briefed solely in relation to the adjournment application and not on the hearing itself.
Supreme Court Common Law Division - General Practice Note SC CL 1 makes reference to procedures in relation to vacating hearing dates. Clause 70 states as follows:
"All applications to vacate a hearing date must be made immediately upon the party seeking to have the trial date vacated becoming aware of the existence of the grounds that will be relied upon in seeking such an order. Such applications should be discussed with the other parties to the proceedings before the Court is approached."
Clause 75 states as follows:
"Such applications must be made in writing supported by an affidavit and listed before he List Judge or Registrar to hear from the parties and make appropriate orders."
The Practice Note of course does not have the force of legislation. The Practice Note is, however, of course made with an understanding of the terms of the legislation, in particular, the terms of Part 6, Division 1 of the Civil Procedure Act 2005 (NSW). Section 56 of the Act of course provides the overriding purpose of the Act and the rules of Court, that being to "facilitate the just, quick and cheap resolution of the real issues in the proceedings."
The applicant submits that if the hearing is vacated there will be no relevant prejudice to the respondent. The respondent points out, and I accept, as stated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 there is always an element of irreparable prejudice when dealing with delay.
Further, there is the issue of costs, albeit that that issue could potentially be remedied by an appropriate order. Even if that order were made there is something undesirable in watching the costs involved in this matter, particularly having regard to the real quantum involved, mounting as they would continue to do were this matter not resolved.
The history of the matter as I have outlined strongly favours the refusal of the adjournment. I have, additionally, had opportunity to consider the written submissions provided on behalf of the applicant. Whilst I appreciate I have not heard full argument in relation to the matters raised, they do not immediately suggest a strong case in relation to the merits of the appeal. Perhaps just as significantly, even if there was such a strong case, the quantum in relation to the damages claim is, as I have indicated, very small. With respect to the costs issue, the claim, as I have indicated, is more substantial. The difficulty for the applicant is for the merits of his claim for costs is even less obvious.
The written submissions argue that the applicant was not unsuccessful in the Local Court having received an award of $7,000 plus interest. The difficulty with that position is that the applicant was seeking an amount in excess of $16,000. Further, not only was the applicant seeking a much greater sum, the respondent did not dispute liability, and subsequently conducted the litigation on the basis that an award would be made against her, arguing that it should be a figure within the range propounded by her expert. That is what occurred.
Challenging the exercise of the discretion with respect to costs is always difficult. Section 40(2), as I have said, provides that leave is required. In the present circumstances those difficulties appear particularly acute given that there appears to be a sound basis for a conclusion that the respondent was successful in the litigation. Indeed, were that not the case one might ask why it is that the applicant is pursuing an appeal at all. In any event, having regard to those matters I am of the view that whilst the Court does have a discretion to adjourn the matter pursuant to s 56 of the Civil Procedure Act and accept that the applicant may be advantaged in an adjournment being granted, it is not appropriate to do so.
For those reasons, I am of the view that the application for an adjournment must be dismissed.
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Decision last updated: 18 July 2024