Reisner v. Bratt & Anor [2004] NSWCA 22

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT 10130/02 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40405/03 CLD 10130/02

HODGSON JA IPP JA

Wednesday 10 March 2004 REISNER V. BRATT & ANOR. Judgment 1 HODGSON JA: On 17 April 2003, Dunford J dismissed a Notice of Motion brought by the claimant Koidu Reisner seeking an extension of time for the filing of a summons claiming orders which would have had the effect of setting aside orders made by the Local Court at Waverley in proceedings between the claimant and Rapid Facilities Management Pty. Limited, the second opponent (which I will refer to as "the opponent", as the first opponent, the Local Court magistrate, is not actively involved in the proceedings); and Dunford J then dismissed the summons itself. He ordered the claimant to pay the opponent's costs of the Notice of Motion and the summons. 2 The claimant seeks leave to appeal against these orders. The parties have agreed that this application be dealt with on the papers, without an appearance in Court, pursuant to Pt.51 r.4D of the Supreme Court rules. 3 The claimant is unrepresented, and was unrepresented before the primary judge. Before considering the grounds on which the claimant seeks to rely, it is necessary to say something about the role of the Court in cases where a party is unrepresented and for that reason a case is not adequately presented to the Court. 4 Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator. 5 In deciding what to do when a case is not adequately presented by an unrepresented litigant, it is appropriate for the Court to take into account that, in some cases, the circumstance that one party is unrepresented can place far greater burdens of time and costs on the other party than would be involved if both litigants had competent representation. There are a number of reasons for this, including the following: the time and costs involved in trying to understand and answer claims that are not formulated so as to clearly raise relevant issues can be much greater than where relevant issues are clearly raised; adjournments are often required, because an unrepresented party is not ready to proceed with the case, either because material required for presentation of the case is not available or for other reasons; and when a case is actually heard, the hearing itself may be much longer than if both sides were represented by a lawyer. 6 Where a case is brought before the Court by an unrepresented litigant, and material required for adequate consideration of that person's case is not available or not presented to the Court, it is not generally the case that the Court should itself undertake an investigation of whether such material exists, and if so, seek to have it brought to the Court so that it can be considered. It may be sometimes appropriate for the Court to attempt to have such material available, particularly if the deficiency of the material is obvious and can be remedied without prejudice to the other side; but otherwise, it would generally conflict with the Court's position as an impartial adjudicator for it to take steps to seek to improve an unrepresented litigant's case by investigating whether there is more material to support that case than has been presented to the Court, and then taking steps to obtain that material. 7 Accordingly, in my opinion, this Court must decide this application on the material actually presented to it, and not speculate as to what additional material might have been presented. However, I would qualify this by saying that I have thought it appropriate to look at the file in the Common Law Division to see if there is relevant material there bearing on the applicant's case. Moreover, the decisions of the primary judge, both on 14 April and 17 April, must be considered in the light of the material actually presented to him, not on the basis of material he might have had if he had taken it upon himself to investigate the matter further. 8 The application arises from proceedings commenced by the claimant by Ordinary Statement of Claim in the Small Claims Division of Waverley Local Court, dated 13 October 2000, and claiming $3,000.00 in respect of a cause of action based on the taking and detaining by the opponent of property of the claimant, namely certain laminate sheets supplied by the claimant for the purpose of installation in her kitchen, and also kitchen doors, a door front and a kick board. The Statement of Claim also claimed damages in respect of $92.00 paid by the claimant to hire power tools for the opponent, and damages for emotional suffering by the claimant for being without a functioning kitchen for many months. 9 On a copy of the Statement of Claim that is with the Court papers, there is an addition dated 3 April 2001 purporting to be an amendment to the Statement of Claim, claiming an additional $3,000.00 expended for furniture said to be consequential upon the opponent's detention of goods, and $1,000.00 for pain and suffering because this expenditure precluded the claimant from paying for medical services. 10 There was a hearing before a magistrate on 24 August 2001, and judgment was given on 16 October 2001. The magistrate found to the effect that the opponent was to construct and install a kitchen in the claimant's premises pursuant to a contract with the Department of Housing, that some of the materials provided by the claimant to the opponent for this purpose had been used to construct a kitchen for the claimant, that the claimant had refused to accept delivery of the kitchen, and that the opponent had handed the kitchen and remaining materials over to the Department of Housing; and on the basis that the opponent had not wrongfully detained the materials. The magistrate also found that the opponent was not liable to pay the $92.00, as the equipment had been hired by the opponent and paid for by the claimant on the basis that the Department of Housing would reimburse the claimant, as indeed it had offered to do. For essentially those reasons, the magistrate entered a verdict for the opponent. 11 The claimant's summons in the Common Law Division of this Court was filed on 16 January 2002, out of time. The claimant filed a Notice of Motion seeking an extension of time. The case was before the Court on 18 March 2002, 5 July 2002, 16 August 2002, 15 November 2002, 25 November 2002, 16 December 2002, 3 February 2003, 18 March 2003, 24 March 2003, 31 March 2003, and 8 April 2003. On each occasion the claimant was present in person and the defendant was represented by a lawyer. It appears that at least some of the adjournments were due to attempts to obtain pro bono legal advice and assistance for the claimant. 12 On 14 April 2003 the matter came before the primary judge. On that day the primary judge stated that he thought the claimant's Notice of Motion for an extension of time should be heard that week, and indicated that the claimant could have Wednesday (16 April) or Thursday (17 April) and asked which day suited her better. The claimant said it would be unfair if she did not have an affidavit from the opponent, and the primary judge said he thought that he should hear her application on Thursday. According to the transcript taken of that day, the claimant said she was not available at any time that week, and it may be that she also said words to the effect that she had medical appointments all week. (This is referred to in the primary judge's judgment. The claimant claims that the transcript is inaccurate. I will assess the matter on the basis that the transcript may not be full or completely accurate, but consistently with what I said before, it would not be appropriate for this Court to attempt to investigate what if any errors there might be in the transcript). According to the transcript, the primary judge asked "What time is your medical appointment on Thursday?"; and the claimant said "I am not available this week", and said she would be available in two weeks time and she asked for an order that the opponent lodge an affidavit. The primary judge fixed 17 April 2003 at 10am for the hearing. The claimant said 17 April was not suitable for the case. 13 On 17 April the claimant did not appear. The primary judge dealt with her application for an extension of time in her absence. He found that the claimant had advanced reasons for the delay in commencing the proceedings that were not unreasonable; but refused the extension of time because he considered the appeal had no prospect of success. Having refused the extension of time, he dismissed the summons. 14 The claimant seeks to appeal on many grounds. I will deal with those which might conceivably have some substance. These concern the following topics of criticism of the primary judge: first, dealing with the matter ex parte; second, dealing with the matter without a complete record of the Local Court proceedings; third, expressing "personal established" prejudice and bias; fourth, error in finding that the ground of appeal was only denial of natural justice, when the claimant also sought to rely on lack of jurisdiction and errors of law; fifth, error in finding there was no denial of natural justice by the magistrate; and finally, the contention that there was in fact no jurisdiction in the Local Court.

EX PARTE HEARING 15 The claimant submits to the effect that the primary judge erred in not ordering the opponent to put on an affidavit; in holding that the earlier appearances went beyond the normal preparation of the case; in setting the matter down for hearing without ordering the opponent to put on an affidavit and in circumstances where the claimant said she was unable to attend because of a medical appointment; and in hearing the case in the absence of the claimant. The claimant also has submitted medical evidence to the effect that she had a medical appointment on the day in question, and that her medical condition was such that she was truly unable to attend the Court on that day. 16 There is no substance in the submission that the opponent should have been ordered to put on an affidavit. The opponent was entitled to take the stance that it would contest the case on the basis of the claimant's own evidence, without itself putting on any evidence. 17 The number of times the case had been before the Court was vastly in excess of what would be usual for such a case, and involved a very heavy burden of costs on the opponent. Irrespective of whether the claimant was at fault in this, and without suggesting that there was anything inappropriate in the attempt to obtain pro bono assistance, the stark reality is that the fact that the claimant was unrepresented had placed a very heavy burden of costs on the opponent; and it was appropriate that the primary judge seek to have the matter dealt with promptly. 18 The primary judge gave the claimant every opportunity to indicate at what time during the week in question she would be available, and the claimant did not take that opportunity, but merely asserted she was unavailable at any time that week. The claimant has led no evidence to support the truth of that assertion. The evidence that she had a medical attendance on 17 April does not indicate that she had medical appointments or any other reason such as to make her unavailable at any other time that week. In those circumstances, the decision of the primary judge to set the matter down for hearing on 17 April was entirely appropriate; and when the claimant did not appear, it was entirely appropriate for him to then deal with the mater in her absence. There was no error of law, and no denial of natural justice. 19 It would have been open to the claimant to make an application to the Common Law Division under Pt.40 r.9 of the Supreme Court rules to set aside the orders made by the primary judge, on the basis that they had been given in her absence. Such application would need to have been supported by evidence to the effect that she was unable to attend that day because of her medical condition, and it would have required her to satisfy the judge hearing the application that she did have a case that was appropriate to go to a full defended hearing. However, the claimant has not taken that course, and it is not necessary to pursue that matter further.

LACK OF COMPLETE RECORD 20 The claimant submitted that the primary judge should not have dealt with the matter without having a complete record of what happened in the Local Court. 21 It follows from what I have said previously that there is no substance in this submission. The Court must deal with the matter essentially on the material presented to the Court, and it is generally inappropriate for the Court to undertake its own investigations.

ALLEGED PREJUDICE AND BIAS 22 The claimant has made a number of submissions in relation to this, none of which has any substance. One matter the claimant referred to was that the primary judge said "From what Mr. Tsintilis has told me I gather that … your case is hopeless". However, what the transcript records is that the judge said "From what Mr. Tsintilis has told me I gather that the defendant's case is that they don't need to put on any evidence because your case is hopeless". Plainly, the primary judge was merely relaying to the claimant what the opponent's contention was, not expressing that view as his own opinion.

ADDITIONAL GROUNDS OF APPEAL 23 The claimant submitted that the primary judge erroneously asserted that she challenged the magistrate's order only on the ground of denial of natural justice. 24 The primary judge did point out that s.69 of the Local Court (Civil Claims) Act 1970 had the effect that appeals from the Small Claims Division lay only on the grounds of lack of jurisdiction or denial of natural justice. The primary judge then proceeded to deal with denial of natural justice, and did not explicitly address the question of lack of jurisdiction. The primary judge was plainly correct in disregarding the claimant's appeal, in so far as it relied on errors of law: such an appeal was not available. As regards lack of jurisdiction, the only submission made as to lack of jurisdiction was that the Local Court Small Claims Division had no jurisdiction "over the complex legal issues of my case"; and the claimant then set out various issues that she said were involved. 25 The relevant limitation of jurisdiction is that provided by s.12 of the Local Courts (Civil Claims) Act 1970, which (prior to an amendment which commenced on 1 Janaury 2004) was as follows: 12 Limits of jurisdiction (1) Subject to this Part, a court sitting in its General Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage (whether liquidated or unliquidated) in which the amount claimed is not more than $40,000, whether on a balance of account or after an admitted set-off or otherwise.

(2) Subject to this Part, a court sitting in its General Division has jurisdiction to hear and determine actions commenced after the commencement of this section to recover goods that are detained, or to recover the assessed value of the goods, if the value of the goods together with the amount of any consequential damages claimed for the detention of the goods does not exceed $40,000.

(3) Subject to this Part, a court sitting in its Small Claims Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage (whether liquidated or unliquidated) in which the amount claimed is not more than $10,000, whether on a balance of account or after an admitted set-off or otherwise.

(4) Subject to this Part, a court sitting in its Small Claims Division has jurisdiction to hear and determine actions commenced after the commencement of this section to recover goods that are detained, or to recover the assessed value of the goods, if the value of the goods together with the amount of any consequential damages claimed for the detention of the goods does not exceed $10,000.

(5) Nothing in subsection (3) or (4) prevents an action under the subsection from being heard and determined by a court sitting in its General Division.

(6) If the amount claimed in an action includes interest (being interest which the court could, under section 39A (1), order to be included in the amount for which it could give judgment) that interest is to be disregarded for the purposes of: (a) determining whether the maximum amount for which the action is authorised by this Act to be brought has been exceeded or not, and (b) determining whether or not the court sitting in a Division has jurisdiction to hear and determine the action.

(7) If: (a) this section is amended, or a rule is made, to increase an amount specified in this section, and (b) an action in which an amount of money is claimed is pending in a court when the amendment or rule takes effect, the court may, on the application of a plaintiff, make an order altering the amount specified in the claim to an amount not exceeding the relevant amount as increased.

(8) In this section, admitted set-off, in relation to an action, means set-off admitted by the plaintiff in the document by the filing of which the action is commenced.

(9) In this section, a reference to an action extends to an action referred to in section 68 of the Fair Trading Act 1987.. 26 The claimant submitted that, at the relevant time, the limit for the Small Claims Division was $3,000.00, not $10,000.00. The grounds actually relied on by the claimant before the primary judge do not appear to be relevant to the jurisdiction of the Local Court Small Claims Division. Before this Court, the claimant has submitted, it appears for the first time, that the claim was outside the jurisdiction of the Small Claims Division because it exceeded $3,000.00. I will return to that submission later.

ERROR CONCERNING DENIAL OF NATURAL JUSTICE 27 The claimant submitted that the magistrate denied her natural justice in various ways. I agree with the primary judge that, on the material presented to this Court, that claim is not made out.

JURISDICTION 28 The claimant submits that her claim was for more than $3,000.00, and that accordingly the Small Claims Division had no jurisdiction. However, the amendment to increase the limit to $10,000.00 was made by Schedule 6 of the Courts Legislation Amendment Act 1999, which commenced on 25 September 2000 (Government Gazette 22/9/00); and thus the Small Claims Division had jurisdiction up to $10,000.00 on 13 October 2000 when the proceedings were commenced. 29 In any event, the claimant's submission depends in part on the status of the purported amendment to the Statement of Claim. This purported amendment does not in terms assert that it is an amendment, but merely records that the claimant wishes to amend. Part 16 of the Local Courts (Civil Claims) Rules provides for the making of amendments, and subject to certain conditions, provides that a party may amend once without obtaining leave to do so. However, it also provides that, if this is done by way of entering the amendment on the document itself, it is necessary that there be reference to the rule pursuant to which the amendment is made, or to the order pursuant to which the amendment is made. There is neither reference in this case. Thus there is a real question, which this Court is unable satisfactorily to resolve, whether the formalities for amendment were gone through, depending on exactly what happened in relation to amendment. There may also be a real question as to whether an amendment, purporting to increase a claim that is already in the Small Claims Division to a figure above the limit of the jurisdiction of that Division would be a valid amendment. The onus is on the claimant to show a ground of appeal, and the opponent has not provided material which could make out that ground. Consistently with what I said before, it is not the function of this Court to conduct an investigation to ascertain whether or not there is such material. 30 Accordingly, there is no substance in this attack on the primary judge's decision.

CONCLUSION 31 Although the claimant has made many complaints about the magistrate's decision, including the complaint that he did not consider the claimant's claim and introduced irrelevant considerations into it, it seems to me, on the material available to me, that the claimant had a fair hearing and that a fair conclusion was reached. It seems to me wrong to suggest, as the claimant does, that the magistrate should have disregarded the circumstances under which the materials were delivered by the claimant to the opponent, and the connection between that delivery and the performance of a contract made by the opponent with the Department of Housing to provide a kitchen for the claimant. In any event, as I have said, the claimant does not have an appeal from the magistrate on questions of fact and law generally. 32 For the reasons I have given, in my opinion the application for leave to appeal from the decision of Dunford J should be dismissed with costs. 33 IPP JA: I agree with Hodgson JA. **********

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