Nasr v NRMA Insurance

Supreme Court of NSW|2006-09-27|Before: McHugh JJ, Harrison J

CITATION : Nasr v NRMA Insurance [2006] NSWSC 1018

DECISION : (1) The appeal is dismissed; (2) The orders of the Magistrate Lulham dated 4 October 2005 are affirmed; (3) The summons filed 8 June 2006 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS : Appeal decision of Local Court Magistrate - non-appearance - Statement of Claim struck out

Allan v Kerr & Anor (1995) Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Carr v Neill [1999] NSWSC 1263 Devries v Australian National Railways Commission (1993) 177 CLR 472 CASES CITED : Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2002] NSWSC 1153 R L & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588 Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405

PARTIES : Nabil Nasr - Plaintiff NRMA Insurance Limited - Defendant

SOLICITORS : Mr N Nasr - Plaintiff in person Mason Black Lawyers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12940/2006 - NABIL NASR v NRMA INSURANCE LIMITED

JUDGMENT (Appeal decision of Local Court Magistrate - non-appearance - Statement of Claim struck out) 1 HER HONOUR: By summons filed 8 June 2006, the plaintiff Nabil Nasr seeks to appeal the decision of His Honour Lulham LCM dated 4 October 2005. Mr Nasr claims that he was overseas when the Local Court struck out his case against the defendant, NRMA Insurance Limited (NRMA Insurance). NRMA Insurance rejected payment of Mr Nasr's claim for his car after it was burnt on 6 July 2004. Mr Nasr appeared unrepresented and has written a letter dated 23 September 2006. NRMA Insurance relied on the affidavit of M Candan Koyuncu dated 13 July 2006. 2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 (formerly Act No 11 1970, section 69 (2) and (2A)) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263; and R L & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082. It cannot be said that the judicial officer acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588.

Grounds of appeal and extension of time to file the appeal 3 The plaintiff claims that he was overseas when the Local Court struck out his case against the NRMA and they (the NRMA) rejected payment of his claim for his car after it was burnt on 6 July 2004. There are no grounds of appeal in his summons but it may be that he could have submitted that he was denied procedural fairness or natural justice. 4 This appeal has been lodged out of time. The decision of the Local Court was made on 4 October 2005. The summons was filed on 8 June 2006, some seven months out of time. No explanation has been provided for this delay. In these circumstances this Court cannot grant an extension of time in which to lodge this appeal.

The Local Court proceedings 5 The Local Court file was not before this Court. There are four letters from the Local Court in evidence. The statement of claim is not before this Court. However, it seems that Mr Nasr sued the NRMA because it denied to pay a claim he made pursuant to his motor vehicle insurance policy and he was seeking damages. Doing the best I can, it appears that Mr Nasr sought and was granted a number of adjournments while he was overseas in China. 6 It appears that the first review date in the Local Court was scheduled for 18 January 2005. As that hearing was to occur while Mr Nasr was overseas, he sent a friend to request an adjournment or represent him. Mr Nasr recounted that the Court advised his friend that he could not represent Mr Nasr and that Mr Nasr or a lawyer should appear. Mr Nasr faxed to the Court a request for an adjournment. The Court acknowledged the fax by email. 7 On 18 January 2005 the Local Court made an order adjourning the matter to 12 April 2005 and ordered that the plaintiff was to pay the defendant's costs of $162.00 within 28 days. The Court forwarded a letter to Mr Nasr informing him of this result and advising him that he should be aware that if he did not appear at the Court at the time set down, the Court may make a decision in his absence. 8 On 12 April 2005 the plaintiff did not appear at court and the following orders were made. (1) Statement of claim struck out following the non appearance of the plaintiff. (2) Judgement for defendant for costs incurred $324.00 for the 26/11/2004 $162.00 for the 18/01/2005 $324.00 costs of today (3) Total amount owing $810.00 payable within 28 days. 9 This order striking out the statement of claim appears to have been set aside and the statement of claim was restored to the list and relisted on 20 September 2005. 10 On 20 September 2005 the matter was adjourned to 4 October 2005 for further review and the plaintiff was ordered to pay the defendant's costs in the sum of $300 within 21 days. At this time the plaintiff was legally represented by his solicitors. 11 On 21 September 2005 the NRMA solicitor Mr Koyuncu wrote to Macquarie Lawyers, who were acting for Mr Nasr and confirmed that he appeared before Mr Lulham LCM for the review of this matter. While he was waiting for the matter to be called he telephoned a representative of Macquarie Lawyers who advised him that a solicitor would appear at the mention. This did not happen. Later, Elias from Macquarie Lawyers contacted Mr Koyuncu and informed that they were not able to obtain instructions from the plaintiff and would be filing a Notice of Discontinuance. Mr Koyuncu advised the Magistrate of this conversation and the following orders were made: 1. The review of the matter adjourned to 4 October 2005; 2. The plaintiff to pay the defendant's costs of $300.00; 3. The defendant to advise the plaintiff and the plaintiff's solicitor of the above orders. 12 The NRMA solicitor wrote to Mr Nasr informing him of the orders made on 20 September 2005 (Ex 1). Apparently, Mr Nasr was informed by his solicitors that, without payment, they would not appear for him again. Macquarie Lawyers still hold his file and he owes them $1,800. 13 On 4 October 2005 there was no appearance by Mr Nasr. The Court wrote to Mr Nasr informing him that the statement of claim was struck out and that he had been ordered to pay the defendant's costs thrown away. This notice further stated "Notice of Motion to be filed by the plaintiff to reinstate".

The Law 14 In Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J made the following observations: "20 The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Courts. 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. 21 The content of the requirements of natural justice is not fixed. The content fluctuates. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to: (i) act judicially; (ii) deal with the matter for decision without bias; (iii) give each party the opportunity of adequately presenting its case; (iv) observe the procedural and other rules provided for in the relevant statute; (v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice." 15 O'Keefe J made the same comments in Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 at para 23. 16 In Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 Grove J stated at para 25: "There is ample authority that procedural fairness is denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequate opportunity to prepare or present a case: Sullivan v Department of Transport (1978) 20 ALR 323; Opitz v Repatriation Commission (1991) 29 FCR 50; Humphrey v Wills (1989) VR 439." 17 Mr Nasr had sought and been granted a number of adjournments prior to 4 October 2005. While Mr Nasr did not appear at Court on 4 October 2005, it is not clear whether he contacted the Court requesting an adjournment. In this case, Mr Nasr was the plaintiff and as such was responsible for prosecuting his proceedings in a timely manner. Adjournments are not given as a matter of right. He had been granted a number of adjournments and once, when the statement of claim had been struck out, he had been given leave to have it restored. Given that history, it was open to the Magistrate to dismiss the statement of claim when the plaintiff failed to appear at Court on 4 October 2005. There has been no denial of procedural fairness. The appeal is dismissed. 18 The orders of His Honour Magistrate Lulham dated 4 October 2005 are affirmed. The summons filed 8 June 2006 is dismissed. 19 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

(2) The orders of His Honour Magistrate Lulham dated 4 October 2005 are affirmed.

(4) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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.

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Judgment (15 paragraphs)

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Cases Cited (12)