Preston v Walsh t/a Walsh & Associates Patent and Trade Mark Attorneys

Representation: Counsel:
Solicitors:
In Person (Plaintiff)
In Person (Defendant)

File Number(s): 2024/00469979

Publication restriction: No

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Summons commencing an appeal filed by Mr John Preston against orders made by an Assessor in the Small Claims Division of the Local Court on 14 November 2024 against the plaintiff in the Court below, John Walsh trading as Walsh & Associates Patent and Trade Mark Attorneys.

2. The material before the Court indicates that Mr Walsh commenced proceedings in the Small Claims Division of the Local Court asserting that moneys were owed for fees and disbursements in relation to Mr Walsh’s practice, against the defendant. The matter was in the Small Claims Division of the Local Court because of the amount in issue which is under the relevant jurisdictional limit.

3. I considered the issues relating to an appeal from the Local Court in Ezi Lift Cranes Pty Limited v Thompson [2020] NSWDC 334, and, in particular, the assertion that there was a breach of the rules of procedural fairness.

4. I also take into account the analysis of the relevant principles by Judge Gibson in Zepinic v Mitrovic [2023] NSWDC 423.

5. The Summons before the Court in the appeal by Mr Preston is dated 12 November 2024. This date was pointed out by Mr Walsh in submissions but it seems to be an error as that was prior to the date of the hearing before the Assessor, and it is difficult to see how the date on the first page of 14 November 2024 as the date of hearing and the date of decision and the name of the Assessor could have been determined prior to the hearing on 12 November 2024. I accept that that date is an error.

6. In support of the appeal Mr Preston read two affidavits without objection dated 12 December 2024 and 2 April 2025.

7. Initially, Mr Preston had sought to adjourn today’s hearing date to a later date but having raised the issues with the parties, they were content for the hearing to be determined today.

8. The transcript of the hearing before the Assessor is before the Court. The background to that transcript is relevant and appears to be as follows:

(a) On 29 October 2024, Mr Preston sent an email to the Local Court at Penrith seeking an extension of time with a reference to an attached statement. The extension of time was in relation to his evidence. It appears that the evidence of the plaintiff below had already been served; (b) A court officer, M Oriakhail, responded indicating that Mr Preston’s email had been forwarded to the Assessor for consideration, and directions had been made giving Mr Preston an extension of time for the filing of his evidence to 4pm on 7 November 2024. It is noted in the email that if there was not sufficient time for the evidence to be considered, the plaintiff may seek an adjournment at the hearing on 14 November 2024. That appears to be stated on the assumption that the evidence was filed by Mr Preston and that the plaintiff may possibly need further time to put on reply evidence. There is no indication that that email exchange was forwarded to Mr Walsh. It appears to be an omission that Mr Walsh’s submissions were not sought by the Assessor in relation to the extension; (c) Mr Preston, by email dated 7 November 2024 to the Local Court at Penrith, raised problems with the directions made on 30 October 2024 as there appeared to be an error in relation to the appropriate party in the reasons given by the Assessor. Mr Preston expressly referred to an attached draft statement by the defendant, being him, dated 29 October 2024 of 17 pages which is before the Court at p 52 of the annexures to the 12 December 2024 affidavit. That has a “draft” placed on the document; (d) On 8 November 2024, M Oriakhail of the Local Court at Penrith responded and indicated that the email had been forwarded to the Assessor who made a direction as follows: “The matter remains list [sic] on 14/11/2024 at 11.30am. Any applications may be made at the hearing.” That appears to be a reference to the application by Mr Preston in his 7 November 2024 email to seeking an adjournment of the 14 November 2024 hearing date. The comment reflects an appropriate course to be adopted as reflected in the direction from the Assessor recorded in the Oriakhail email dated 8 November 2024; (e) The matter came on for hearing on 14 November 2024. The transcript is before the Court. That has to be read in the light of the emails I have referred to and the fact that Mr Preston’s statement material was in draft.

9. Mr Walsh in submissions pointed to the 19 page version of the statement of Mr Preston commencing at p 44 of the 2 April 2025 Preston affidavit. He submitted that that statement could have been placed before the Assessor at the time. Although dated 29 October 2024, it is clear that it was not finalised on that date because there are references to dates on 30 October 2024 and 31 October 2024 in the statement at paragraphs 12 and 13.

10. A careful examination needs to be made of the transcript before Assessor Harvey commencing at p 25 of the annexures to the affidavit dated 12 December 2024. After preliminary matters where the parties appeared, the Assessor on p 2 at line 5 referred to the suggestion that Mr Preston had not complied with the directions made, and indicated that she was the Assessor who extended the time, and Mr Preston was not “entitled to a reply”.

11. In that exchange, the Assessor indicated that she was not allowing an adjournment for the reasons she had just indicated: T2, line 18. When Mr Preston attempted to indicate that he was told that he could adjourn the matter, which I take to be a reference to an application to adjourn, which on its face appears to be a reference to the 8 November 2024 email to Mr Preston, the Assessor stated that no one told Mr Preston that, and then indicated that he could make an application, and that the Assessor was “the Court”, and that there was no reasonable explanation: T2, line 30.

12. When Mr Preston again attempted to make an adjournment application at T3 line 27 referring to the 30 October 2024 email, the Assessor immediately rejected the application without hearing the grounds for the application. The transcript, in essence, speaks for itself. It appears that there was no proper opportunity for Mr Preston to articulate the basis for his adjournment application and the reasons in support of it.

13. Before me, Mr Walsh referred to the background to the matter, and how the plaintiff was seeking payment for invoices, a substantial part of which were for disbursements. He also submitted that a fair hearing was given to the defendant, because the Assessor had given the defendant an extension and the reaction to the adjournment application was a reasonable reaction from the Assessor in the circumstances.

THE STATUTORY PROVISIONS

14. Sections 35 and 39 and 41 of the Local Court Act 2007 (NSW) provide as follows:

**“**35 Procedure generally in Small Claims Division

(1) The jurisdiction of the Court sitting in its Small Claims Division may be exercised by a Magistrate or an Assessor.

(1A) However, the jurisdiction of the Court in proceedings involving company title home unit disputes under section 34A may only be exercised by a Magistrate.

(2) Proceedings in the Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits.

(3) The rules of evidence do not apply to proceedings being heard or other proceedings in the Small Claims Division.

(4) Witnesses may not be cross-examined except in circumstances in which, and to the extent to which, the cross-examination of witnesses is authorised by the rules or a practice note.

(5) A Magistrate or an Assessor exercising the jurisdiction of the Court sitting in its Small Claims Division may inform himself or herself on any matter relating to proceedings being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit.

(6) Proceedings in the Small Claims Division (other than any judgment given or order made in respect of the proceedings) are not required to be recorded.

…

39 Appeals as of right

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.

…

41 Determination of appeals

(1) The Supreme Court may determine an appeal made under section 39 (1) or 40—

(a) by varying the terms of the judgment or order, or

(b) by setting aside the judgment or order, or

(c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or

(d) by dismissing the appeal.

(2) The District Court may determine an appeal made under section 39 (2)—

(a) by varying the terms of the judgment or order, or

(b) by setting aside the judgment or order, or

(c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the District Court’s directions, or

(d) by dismissing the appeal.”

15. Under s 39 of the Local Court Act, a party to proceedings before the Local Court, sitting in its Small Claims Division, who is dissatisfied with the judgment or order of the Court, may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.

16. There is no apparent lack of jurisdiction in the present case as the Assessor was entitled to determine the application for payment of the fees sought.

17. What the Assessor appeared to do on the transcript, in the light of what occurred, was to strike out the Defence of Mr Preston and give leave for the plaintiff to ask for a default judgment. That is precisely what occurred and, accordingly, orders were made on 14 November 2024 by the Assessor, striking out the Defence, and the next day, default judgment was sought, and an order was made in the Local Court granting default judgment on 15 November 2024. See p 44 of the documents annexed to the Preston 12 December 2024 affidavit.

18. That judgment was in the sum of $19,962.40 inclusive of costs.

19. Procedural fairness, referred to in s 39 of the Local Court Act*,* must be seen in its context. In my view, as I indicated in Ezi Lift Cranes at paragraph 18, it relates to the fairness of the procedure by which the decision of the Assessor was made, and not the fairness of the substantive decision under review: see SZBEL v Minister for Immigration and Cultural and Multicultural Indigenous Affairs (2006) 228 CLR 152 at [25].

20. Procedural fairness has been traditionally regarded as involving two requirements, being the fair hearing rule and the rule against bias. There is no issue, in the present case, of an allegation of actual or apprehended bias against the Assessor.

21. Accordingly, the Court must first determine whether there is a duty to afford procedural fairness, and secondly, if the duty exists, the content of the duty to accord procedural fairness in the particular case. It has been held that the content of the duty to afford procedural fairness in any particular case is a flexible one: Kioa v West (1985) 159 CLR 550 at 612 per Brennan J.

22. That statement of principle was approved by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [129].

23. The principles applicable were also set out by her Honour Judge Gibson in the Zepinic matter at paragraphs 35 to 38. As her Honour indicated, procedural fairness in the circumstances must permit a party a reasonable opportunity to present its arguments and evidence: see Kioa v West, per Mason J, at 582.

24. I turn back to the transcript. I can understand the frustration of Mr Walsh at an attempt to overturn the orders made by the Assessor, which, in his view, were reasonable ones in the circumstances of what are said to be owed by Mr Preston. However, I need to focus on the transcript of what occurred before the Assessor. In my view, it is clear from the transcript that Mr Preston sought to make an adjournment application of the hearing on the basis that he had not had a proper opportunity to complete his draft statement, and that he was not given an opportunity to make that application, and to make submissions in support of it. To me that is abundantly clear, with due respect to the Assessor, from a review of the transcript, with attempts being made at T2.28 and T3.27.

25. What the outcome of such an application would have been is unclear. It may be that because of the complexities of the needs for the defendant’s evidence that the application would have been allowed, or it might have been rejected in all the circumstances. I am unable to form a view on the evidence in relation to that point. However, because there was a lack of a fair opportunity to make the application, present arguments in its favour and the basis for the application, in my view there was a denial of procedural fairness by the Assessor. In those circumstances, in my view, the appeal should be allowed.

26. However, in relation to the question of costs, the error was clearly that of the Assessor. The fact that Mr Walsh, who is a litigant in person, was attempting to substantiate the decision does not, in my view, detract from that view. In my view, the costs of this appeal should be costs in the cause.

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