Optrade Investments P/L v Telik Ceiling Systems P/L

The Local Court proceedings 7 On 3 February 2003 Telik commenced proceedings at Penrith Local Court. Optrade filed a notice of grounds of defence and a cross claim. On 9 July 2003 a pre-trial review took place. There was no appearance by the parties and the statement of liquidated claim and cross claim were struck out. The defendant filed a notice of motion to have the proceedings restored to the list. On 18 September 2003, by consent, the matter was restored to the list and was listed for 8 October 2003 for a further pre-trial review. On 8 October 2003 no date was given for a hearing but the parties were provided with a notice informing them that the hearing was to be advised and that any witness statements had to be filed no less than 21 days prior to the hearing date. 8 The matter was listed for hearing in the Local Court at Parramatta in December 2003. There was no appearance by Optrade and judgment was entered in favour of Telik in the sum of $8,412.37 inclusive of costs and interest. No order was made in relation to the cross claim.

Explanation for non-attendance 9 In her affidavit sworn 12 March 2004 the plaintiff's solicitor, Jennifer Hammond, deposed that on 7 October 2003 she changed her place of practice from 25 to 21 Renwick Street, Leichhardt. The new premises being two doors along from the old one. Her former premises have not been tenanted since she left and for a period of approximately two months she was permitted by Mr Fuda (the owner of 21, 25 and 27 Renwick Street) to keep the key of 25 Renwick Street. During this time she attended 25 Renwick Street at least once each day for the purpose of collecting mail. Since early to mid December 2003 Ms Hammond's mail addressed to her at the address of 25 Renwick Street has been passed onto to her by Mr Fuda's secretary. 10 In November 2003 Ms Hammond received a bundle of documents from Telik in relation to the Local Court proceedings. On about 7 January 2004 Ms Hammond's office received a notice from the Local Court at Parramatta dated 23 December 2003 stating that at the hearing on 5 December 2003 judgment was recorded in favour of Telik in the sum of $8,412.37 inclusive of costs and interest. Ms Hammond was abroad on leave at the time and was notified by email by Ms Foteades. Ms Hammond states that neither she nor her client received any notice from the Local Court notifying them of the hearing date on 5 December 2003. It appears that a notice was issued to the plaintiff by the court but not received by the plaintiff's solicitor (see paragraph 8, affidavit, Lance Jackson 5 April 2004). 11 On 23 January 2004 after Ms Hammond returned from leave she conducted a search through her file to confirm that she had in fact not received a notice of hearing from the Local Court. During the course of her search she looked through the bundle of documents forwarded to her by Telik. Amidst these documents was a document addressed to Telik comprising a notice from the Local Court to Telik notifying it of the hearing on 5 December 2003. Ms Hammond's says that the reason she did not notice the document was that it was among copies of documents she had seen previously such as a notice of grounds of defence and correspondence between the parties and she had formed the view that the brief statement, being the front page of the bundle, was the only document in the bundle that was new. 12 The plaintiff referred to Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 and Wakim v Matthiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, where O'Keefe J made the following observations: "The requirements of natural justice (or procedure 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 29(2) of the Act. 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." 13 The plaintiff's solicitor did actually receive a notice of hearing albeit addressed to the other party advising of the hearing date, namely 5 December 2003 which was contained within a bundle of documents served by the defendant's solicitors. The fact that she received witness statements (even if she had seen them before) should have alerted her to the fact that the next step before the hearing had been taken. This is particularly so when she was aware that a hearing date had been allocated by the court. If the plaintiff's solicitor had sorted through the bundle of documents she would have recognised the notice of hearing issued by the court. In these circumstances there is no denial of natural justice. The appeal is dismissed. The judgment and orders of the Small Claims Division of the Local Court at Parramatta dated 5 December 2003 are affirmed. The summons is dismissed. 14 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

(2) The judgment and orders of the Small Claims Division of the Local Court at Parramatta dated 5 December 2003 are affirmed.

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

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