Personnel Concepts WA Pty Ltd v Adam

Supreme Court of NSW|2018-10-24|Before: Adamson J

Introduction

On 21 June 2018 Huntsman LCM ordered judgment for the defendants (Marsdens) and published reasons for her decision. In summary, her Honour was not satisfied that there was any legally binding agreement between the plaintiffs (the recruiters) and Marsdens and that, accordingly, Marsdens was not liable to pay the recruiters when it employed a solicitor who had engaged the recruiters to help him find employment in New South Wales.
On 17 July 2018 the recruiters filed a notice of intention to appeal against the judgment of the Court below. A summons for appeal was filed on 21 September 2018. The notice of intention to appeal was said to have been filed on behalf of the recruiters under a misapprehension as there is no provision for such a notice in respect of an appeal from the Local Court to a single judge of this Court. As is apparent from a consideration of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), such a notice is only available to parties who have a right of appeal to the Court of Appeal: UCPR, r 51.6.
Marsdens' solicitors notified the recruiters of the inappropriateness of their notice of intention to appeal. Undeterred, the recruiters, on 21 September 2018, filed a summons commencing an appeal pursuant to UCPR, r 50. The orders sought neither included an application for an extension of time (which was required since the appeal was filed more than 28 days after the material date, being the date on which the magistrate handed down her decision), nor an application for leave to appeal on a question of mixed fact and law.
The following notices of motion were listed before me for determination: 1. Marsdens' notice of motion filed on 8 October 2018 for orders that the summons be dismissed as incompetent and for security for costs; and 2. The recruiters' notice of motion filed on 17 October 2018 for leave to file an amended summons seeking an extension of time.

The notices of motion

Mr DeBuse, who appeared on behalf of Marsdens, contended that leave to appeal was required as the questions raised were questions of mixed law and fact (s 39 of the Local Court Act 2007 (NSW)) and not questions of law, in respect of which there is an entitlement to appeal as of right (s 40 of the Local Court Act). He submitted that, as leave had not been sought, the appeal was incompetent and the proceedings ought be dismissed.
Further, he submitted that the appeal was so hopeless in any event that it should be summarily dismissed. He contended that the decision of the Court below was plainly correct and based at least in part on findings of credit, which are not amenable to appeal: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47. He submitted that not to dismiss the proceedings was, in effect, to defer the inevitable since the recruiters would be unsuccessful at a final hearing and both parties would incur significant costs associated with having to run the matter to a final hearing.
Mr Hemsworth, who appeared on behalf of the recruiters, submitted that, as his clients accepted the findings of primary fact by the Court below, the question whether her Honour was incorrect to find that there was no legally binding agreement was a question of law and therefore leave was not required.
Having read the reasons of her Honour and heard the arguments of the parties, I am satisfied that the questions raised by the summons raise questions of mixed law and fact. Accordingly, leave to appeal is required.
I am not persuaded that it is appropriate to dismiss the matter summarily. It appears to me that the interests of justice require that the recruiters be permitted to argue the matter they wish to raise in a final hearing: namely, whether the primary facts ought to have led to a finding that there was a legally binding agreement between the recruiters and Marsdens. I doubt that a final hearing would take more than half a day, given that the primary facts and findings are not the subject of challenge. Directions will be made by the Registrar for the service of written submissions prior to the hearing. Although the recruiters need an extension of time and leave to appeal before they will be permitted to appeal against the decision of the Court below, it is in the interests of justice that all three matters (the extension of time, the leave application and the appeal, if leave is granted) be determined together at the final hearing in order to contain the costs of the proceedings in this Court.
I am satisfied that it is in the interests of justice to grant leave to the recruiters to file an amended summons which includes a prayer for an extension of time as well as an application for leave to appeal.
Mr DeBuse informed me that the balance of Marsdens' notice of motion, the application for security for costs, was not pressed since he expected that this matter would be the subject of agreement between the parties and would not require determination by the Court. If no such agreement is reached and if this part of the notice of motion does not fall within the Registrar's jurisdiction, I propose to grant leave to the parties to approach my associate to have the balance of the motion dealt with by me at 9.15am on a convenient date.

Notice to produce dated 17 October 2018 served by Marsdens on the recruiters

There is an outstanding issue relating to a notice to produce for inspection which was issued by Marsdens to the recruiters on 17 October 2018. Marsdens seek production, amongst other matters, of the following: "Documents recording the advice given by Mr Roth as referred to in para 8(a) of the affidavit of Ben Hemsworth dated 16 October 2018."
The forensic purpose of this request is to test the recruiters' explanation for the delay in filing the summons that they were given incorrect advice about the proper procedure by one of their legal advisers. The recruiters objected to production of any such document. I overruled the objection, as I considered that the documents or documents sought have been specified with reasonable precision and are plainly relevant to the application for an extension of time. In the course of the hearing, Mr Hemsworth agreed to provide an answer to the notice to produce informally to Marsdens' solicitors to avoid a further appearance before the Court.

Costs

Marsdens sought the costs of today's hearing on an indemnity basis. Mr DeBuse submitted that, in effect, Marsdens were obliged to draw the attention of the Court and the recruiters to the deficiencies in the summons. He argued that, had the recruiters been responsive to the matters raised by Marsdens in correspondence, the recruiters would have filed an amended summons to rectify the deficiencies identified by Marsdens. Mr DeBuse, in effect, said that Marsdens ought not have to bear any part of the costs of educating the recruiters on the application of the UCPR or the Local Court Act. In response, Mr Hemsworth contended that the recruiters' conduct was not so unreasonable as to make an order for indemnity costs appropriate.
Whilst there is considerable force in what Mr DeBuse has said, I am not satisfied that this is a case where the recruiters ought be ordered to pay Marsdens' costs of today's hearing on an indemnity basis. However, it is appropriate that the recruiters bear the costs of today's hearing since it was their defaults and the deficiencies in their summons which led to the notices of motion.

Orders

For the reasons set out above, I make the following orders: 1. I grant leave to the plaintiffs to file an amended summons which includes an application for an extension of time and for leave to appeal. 2. I direct the plaintiffs to file and serve their amended summons by 31 October 2018. 3. I direct the plaintiffs to answer the notice to produce served by the defendants dated 17 October 2018 by informal production to the defendants' solicitors by 31 October 2018. 4. I order the plaintiffs to pay the defendants' costs of the defendants' notice of motion filed on 8 October 2018 and the plaintiffs' notice of motion filed on 17 October 2018. 5. I order that the questions whether an extension of time ought be granted, whether leave to appeal ought be granted and, if so, whether the appeal ought be allowed, are to be heard together at the final hearing. 6. Stand the matter over for further directions to the Registrar's list on 7 November 2018 at 9am.

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: 25 October 2018

At a glance

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