This application for judicial review brought by Mr Robert Coshott (the plaintiff) raises the question of whether, and if so to what degree, a judicial officer must provide an opportunity to be heard to a person tangentially involved in proceedings before making an adverse finding about the conduct of that person.
[2]
Background
The background of the matter may be stated concisely.
Mr Michael Coshott sued Ms Charmaine Duarte (the first defendant before me, to whom I shall refer for convenience as "the defendant") in the Local Court of New South Wales.
In March 2015, he obtained a judgment against her in that Court for a sum of a little over $29,000.
On 24 August 2015, the defendant drew a cheque in the sum of $6,000 payable to Michael Coshott. Four days later, on 28 August 2015, Michael Coshott endorsed that cheque as payable to the plaintiff.
On 14 October 2015, the defendant drew a cheque for over $8,000 payable to Michael Coshott. On 6 November 2015, Michael Coshott endorsed that cheque as payable to the plaintiff.
On 10 January 2017, the plaintiff swore an affidavit in support of a Notice of Motion in support of a garnishee order of Michael Coshott seeking to enforce his judgment against the defendant. In that affidavit, the plaintiff swore that he was a consultant to the plaintiff; that he had personal knowledge of the facts contained in his affidavit; and that particular amounts were payable pursuant to the judgment itself, and pursuant to interest upon that judgment.
Robert Coshott v Charmaine Duarte [2018] NSWSC 731 | Case summary | Zoe
It was not in dispute before me that, quite apart from then being a consultant to Michael Coshott, the plaintiff is also his father.
On 31 January 2017, the Local Court made the garnishee order against a third party pertaining to funds owed to the defendant, in support of the judgment obtained by Michael Coshott against her.
The defendant sought to have the garnishee order set aside. Those proceedings came before Magistrate Freund on 30 May 2017. The parties were, of course, Michael Coshott and the defendant. Each party was represented. No appearance was sought to be made for the plaintiff. Neither party called the plaintiff as a witness. Whether the plaintiff would or must have been aware of the proceedings was an issue in dispute before me.
One of the submissions made by counsel for the defendant (who also appeared before me) before her Honour was that there had been a set-off of sums that affected the judgment debt.
Another submission made by counsel for the defendant before her Honour was that the garnishee order should be set aside, on the basis that the affidavit of the plaintiff upon which it was founded not only overstated the judgment sum, but also failed to take into account payments that had been made by the defendant to Michael Coshott (Transcript 30 May 2017, 4.45).
The lawyer then appearing for Michael Coshott did not seek to defend the accuracy of the affidavit of the plaintiff, but resisted the proposition that there had been a set-off in the terms contended for by the defendant.
In a judgment of 7 June 2017, her Honour rejected the proposition that there had been a set-off that should operate in favour of the defendant.
Her Honour did, however, set aside the garnishee order. Her Honour found that the evidence indicated that: the affidavit of the plaintiff overstated the amount of the judgment debt; the judgment debt had been reduced by payment of at least more than $22,000 received by Michael Coshott from the defendant; the plaintiff "would have been at least aware" of some of the reduction, because two of the cheques from the defendant were made personally payable to him by Michael Coshott; and in the same vein, the affidavit sought interest on an inflated sum.
Her Honour went on to say at [20]:
"Accordingly I am satisfied to the Briginshaw standard that the 2017 Garnishee Order was based on an affidavit falsely sworn and I therefore set aside the 2017 Garnishee order." (case citation footnote omitted)
It is that finding of dishonesty, as opposed to inadvertence, made with regard to the plaintiff, without him having had an opportunity to speak against its making by her Honour, that founds these proceedings.
Subsequently, indemnity costs were ordered against Michael Coshott. That was on the basis that, in the proceedings before Magistrate Freund, he had sought to rely upon a falsely sworn affidavit; that is, the affidavit of the plaintiff under discussion.
[3]
Submissions of plaintiff
Both the summons of the plaintiff (filed on 14 June 2017) and his oral submissions made it clear that he does not seek to have the setting aside of the garnishee order in turn set aside by me. Instead, his proposition was that I could set aside or quash the "finding" of the learned Magistrate without disturbing the order that she had made as a consequence of it. His proposition was that I could "substitute" a finding of the plaintiff having made a slip for the finding of the Magistrate that he had deliberately sworn a false affidavit.
Concomitant with that submission, the plaintiff submitted that, if the interests of the defendant were not to be disturbed by the quashing of an order in her favour, she had no standing to be heard against his summons. The "true" defendant, he submitted, should be the Magistrate or the Local Court, to be represented, on his thesis, by the Crown Solicitor's Office.
The plaintiff submitted that the failure of Michael Coshott to appeal against the setting aside of the garnishee order is not to the point. That is because the contention of neither the plaintiff nor Michael Coshott is that Michael Coshott was denied procedural fairness; rather, the contention of the plaintiff is that he himself suffered that injustice.
The plaintiff submitted that, following the adverse finding being made, his reputation was increasingly tarnished, which is an interest amenable to judicial review if procedural fairness is denied.
The plaintiff contended that, if it were established that he had been denied procedural fairness, then it was not incumbent upon him to provide evidence of what he might have said to the Magistrate if given a chance to do so. Rather, it was incumbent upon the defendant to these proceedings to demonstrate that nothing he could have said could have made any difference to the adverse determination.
In response to my invitation to provide me with authority for the proposition that a witness or other person who is not a party to proceedings must be heard by the tribunal of fact before an adverse finding is made about that person, the plaintiff provided me with two cases: Adamson v Ede [2009] NSWCA 379 and Richard Shorten and Anor v David Hurst Constructions Pty Limited and Anor [2008] NSWSC 546.
[4]
Determination
I do not propose to accede to the submission of the plaintiff that I should somehow "substitute" the finding of fact that the affidavit was falsely sworn with the finding of fact that it was mistakenly sworn. I adopt that position for the following reasons.
First, I accept that potential damage to reputation can be a matter that attracts the need for procedural fairness: see Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564, at p 577-578.
I also accept that there is no hard and fast rule that third parties to proceedings must be denied a right to be heard: see Ainsworth. But I do not consider that it is the law of New South Wales in 2018 that, before an adverse finding is made about a witness or other non-party involved in curial proceedings, it is incumbent upon a tribunal of fact to hear from that person.
To repeat the example that I raised during the hearing, one can imagine hard-fought civil proceedings, in which 15 witnesses were called by each party. One can imagine that counsel for each party concedes, in his or her final address, that the evidence of three of the witnesses called in his or her case is not to be believed, and can be put to one side. In those circumstances, I do not believe that it is the law that the trial judge must provide an opportunity to be heard by all of those six witnesses, before making an adverse finding about one or more of them.
Secondly, it is significant that the plaintiff was able to provide me with no authority at all to that effect. The two authorities with which he did provide me pertained to the need to provide procedural fairness to parties; a completely uncontroversial proposition. Indeed, to the extent that the decision of Adamson v Ede is to the effect that a judge or magistrate is not required to provide notice to a party (or "de facto party") of the potential for an adverse finding about credit regarding his or her evidence, it may be said to be to the contrary of the proposition of the plaintiff: see the judgment of Campbell JA at [117]-[119].
Thirdly, even if I were to accept that proposition, I do not accept that the "substructure" of an order (in this case, the finding that the affidavit of the plaintiff had been falsely sworn) can somehow be substituted, without undermining the validity of the order itself. And that concern is even more powerful with regard to the order that Michael Coshott pay the defendant indemnity costs than it is with regard to the order that the garnishee order be set aside.
Fourthly, it is true that I have a power to make declarations, pursuant to s 75 of the Supreme Court Act 1970 (NSW). And it is noteworthy that that was the remedy ultimately provided by the High Court of Australia in Ainsworth: at p 581-582. But it is inconceivable that I would make a declaration about a state of affairs that is plainly inconsistent with the extant finding of Magistrate Freund.
Fifthly, and appreciating that I am dealing with the question of the standing of the defendant to be the contradictor in these proceedings last instead of first, because of the concern expressed in [30], I am soundly of the view that it was appropriate for me to hear from counsel for the defendant in these proceedings.
Sixthly, and procedurally, even if I were to accept all that the plaintiff has submitted, I would not simply substitute one finding of fact for another. That is because it is impossible for me, hearing such an application, to determine where the truth lies as to the reason why the plaintiff swore an affidavit that was factually incorrect. The appropriate remedy would surely be to remit the matter to the Local Court. But that leads one back to the third aspect that I have emphasised at [30]: I do not believe that a finding of fact can be impugned or reconsidered, devoid from reflection about or effect upon, the orders that have been founded upon it.
[5]
Conclusion
For a number of reasons - the most fundamental of which is the absence of authority for the proposition that a non-party tangentially involved in curial proceedings has a right to be heard before an adverse finding is made about him or her - I do not propose to make the orders sought by the plaintiff.
[6]
Costs
For the reasons that I have explained above, the defendant was entitled to be heard in resistance to the summons. She comprehensively succeeded in doing so. Contrary to the submissions of the plaintiff, there is no reason why she should not have her costs associated with it.
[7]
Orders
I make the following orders:
(1) The summons of the plaintiff, Robert Coshott, filed on 14 June 2017, is dismissed.
(2) The plaintiff, Robert Coshott, must pay the costs of the defendant, Charmaine Duarte, of the proceedings before me.
[8]
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Decision last updated: 23 May 2018