Saqa v Bainivalu [2005] NSWSC 1091 | Case summary

1 HIS HONOUR: The motion before the Court seeks review of a decision by Assistant Registrar Howe, the making of an order for extension of time having been declined by him and, for leave to file a further amended summons in the form of a submitted draft. 2 It is necessary to sketch some background to the dispute. The parties are of Fijian ancestry. On 20 April 2003 the defendant gave birth to a son, Abraham Isaiah Bainivalu. The father of the child is Atunaisa Saqa. He is the son of the plaintiff Metuisela Saqa. The parents of Abraham are not married. 3 On 23 April, after the discharge of the defendant from hospital where she had given birth, a request was communicated to her to see the baby, as a result of which on 24 April the plaintiff and a group of people including Atunaisa Saqa and other family members visited the home of the defendant's sister where the defendant, her mother and the infant were present. 4 The visitors brought with them some items which are foundational to the litigated dispute. These were a carved whale's tooth, four plaited tapa cloths and four woven woollen mats. 5 It can be noted that the defendant's father was not present when the visitors came. The plaintiff was witnessed to put the whale's tooth around Abraham's neck and the child was seen swaddled in a tapa. Thereafter a dispute arose concerning the right of the plaintiff (paternal grandfather) to name the baby. When the visitors left they did not take with them the above described items. 6 In May 2003 the defendant presented the baby at a dedication ceremony. At such a ceremony a pastor is present and prayers are offered. During the ceremony the tapa cloths and the mats were spread on the floor. After the ceremony these, together with the whale's tooth were left with the pastor who conducted it. The defendant's mother asserted that this was done because she feared that keeping the "gifts" would curse Abraham's life as the plaintiff had brought them with "a wrong attitude and a bad heart". She said the items were thereafter disposable at the discretion of the pastor. It is common ground that the whale's tooth (said to have been carved in 1832) has been returned to the plaintiff. It appears that the pastor gave the tapas and mats to third parties, who are no longer in Australia. 7 In accordance with the Local Court Practice Note (3/2001) the evidence was put before the Small Claims Division of the Local Court by way of written statements. No direction was sought or given for the attendance of witnesses. The amount of claim was identified in a letter of demand dated 21 November 2003 from the plaintiff to the defendant requesting her "to pay $7,000 in order to cover it's (sic) priceless value". It is plain from the context of the letter that it is intended to refer to all of the above described "artefacts". 8 The foregoing does not incorporate contradictions about what happened at the visitation on 24 April 2003 nor in subsequent contacts where further contradictions are discernible in the statements. It is not necessary for present purposes to delve into that depth of detail. 9 In accordance with the procedures in the Local Court the claim was referred for determination by an assessor. The plaintiff appeared in person. The defendant was represented by a solicitor, Mr Massey. The proceedings were conducted in the conventional informal fashion but they were transcribed and the transcription of the proceedings has been exhibited on this motion. 10 Assessor Harvey found in favour of the defendant and she entered judgment in her favour. The plaintiff was ordered to pay costs of $569.60. Upon the orders for judgment and costs being announced, the plaintiff said that he would appeal and the assessor said to him: "If you want to get some advice about any other remedies you just see the Registrar". That was obviously a reference to the Registrar of the Local Court. 11 The reasons of Assistant Registrar Howe record that immediately following the decision the plaintiff lodged a complaint about the assessor. I quote: "he received advice from a chamber magistrate, apparently he complained about the assessor to the Chief Magistrate. He went to the Judicial Commission. He failed to file a summons with this Court in the required time". 12 The plaintiff approached this Court by issuing a summons on 3 December 2004. The material date of decision in the Local Court was 1 November 2004. 13 A preliminary issue arises out of the express reference by Assistant Registrar Howe to the plaintiff's application being dealt with in accordance with SCR Pt 51A r 2A. That rule concerns requirements for applications for leave to appeal in which the summons is required to be filed within fourteen days after the material date. He noted the specific power to extend that period pursuant to subrule 5 or, alternatively, pursuant to the general power in SCR Pt 2 r 3. 14 The appeal brought by the plaintiff did not require leave. The time within which his summons should have been filed was 28 days after material date pursuant to SCR Pt 51A r 3. The filing on 3 December 2003 was outside of that period and the plaintiff nevertheless requires extension of time although the extent of his non compliance in terms of the applicable "deadline" is obviously narrower than that considered by Assistant Registrar Howe. Nothing will turn upon his reference to the inappropriate rule. The motion seeks review pursuant to SCR Pt 61 r 3 which is not subject to the limitation on appeal in s 75A of the Supreme Court Act. The review is conducted as a hearing de novo. 15 Whilst in general, and in the absence of particular prejudice to the opponent, a liberal attitude to extension of time might be taken, it is not granted as a matter of mere routine. 16 The Local Courts (Civil Claims) Act 1970 expressly limits the available grounds of appeal to this Court from the Small Claims Division to lack of jurisdiction or denial of natural justice: s 69(2A). The principal thrust of the argument of Mr Coustas for the defendant, resisting the grant of extension of time, was the absence of prospects of success in the proposed appeal, having regard to the statutory limitation. 17 It is self evident that refusal of extension of time will terminate the proceedings. Ms Wong of counsel for the plaintiff sought the concurrent determination of the proposed further amended summons, assuming facilitating orders being made. As argument between the advocates developed, it became a contest between the demonstration of denial of natural justice by the plaintiff and demonstration by the defendant that there was no prospect of this being established. 18 The argument on behalf of the plaintiff generally followed the pattern of grounds of appeal set out in the proposed amended summons. 19 Four contentions were particularized asserting that the assessor lacked jurisdiction. These grounds (numbered 5, 6, 7 and 8) were referred to in a written submission as assuming that "the broader grounds of jurisdictional error which can be relied upon when challenging a tribunal's decision are also applicable to the Small Claims Division …the plaintiff concedes that such a view is contrary to the current weight of authority and does not propose to address these grounds of appeal in these written submissions". 20 I consider that there is a perceptible distinction between the express words in s 69(2A) "lack of jurisdiction" and concepts of jurisdictional error which have developed in relation to tribunals. The Small Claims Division is an element of a court and, although its proceedings are conducted in a deliberately informal manner, it is not of the nature of an administrative tribunal. 21 However, as the contentions are not pressed, further elaboration is unnecessary. 22 The arguments of the plaintiff asserting that he was denied natural justice were also presented on four grounds. The last of these contended that the decision of the assessor was arbitrary, irrational and unreasonable. That can be considered in the context of the complaints comprehended by the other three grounds. 23 It is complained that the assessor did not provide the plaintiff with an opportunity to comment on the letter of demand (of 21 November 2003). 24 When coming to her conclusion Assessor Harvey said to the plaintiff, after acknowledging that he did not accept the opinions of Mere Siganisucu concerning Fijian culture and tradition, that she was "basing it (the decision) on ….your first letter of demand of 21 November where I have found that when you left the goods in Frances' (the defendant's) possession for her and possibly on trust (for the infant)". 25 In fact, the transcript shows that the plaintiff did comment but he limited himself to the detail that the goods were in fact left at "the sister's house". It is an exaggeration to assert that he was denied opportunity to comment. 26 The letter of 21 November 2003 was tendered at the very outset of proceedings. It was apparent from that time that the content of the letter was relied upon by the defendant in support of her defence. 27 The terms of the letter include a proposition that if you (the defendant) "accept what was offered" it shows intention to abide by agreement. To imply disagreement, "the goods should be returned". It is then stated that the defendant did not (obviously subsequently) abide by the agreement and the plaintiff now wanted the artefacts returned. It is true that the exact terms of the agreement(s) are opaque except that it is said that the defendant did not keep a promise not to seek financial assistance from Abraham's father. 28 It is significant that the plaintiff's statement of claim relies upon an unspecified "traditional agreement" under which the goods should be returned but, as pointed out by Mr Coustas, that is in direct conflict with the statement by the plaintiff that the artefacts were left behind because he forgot to take them with him. 29 The transcript shows that in terms of time, much attention was directed to the claimed traditions. Inter alia, there was reference to the visitors engaging in roqoroqo, that is cuddling the infant and presenting tapa and weave. On the other hand, the plaintiff asserted that the visitors came to assert a right to name the child and that, in the absence of the defendant's father, no such naming ceremony could be effected. 30 The complaint is made that the parties had chosen to argue the case on the basis of conflict as to what was the content of traditional culture being exercised and it was unfair to decide the outcome otherwise, specifically by reference to the content of the letter. The submission assumes the exclusivity of the issues surrounding the dispute as to cultural content having been chosen. That was not the case. The transcript shows that it was clear that the solicitor for the defendant was relying upon the pleading and what could be drawn from the content of the letter. The content was irrelevant to the case otherwise being sought to be made on behalf of the defendant by the "expert evidence" concerning culture and tradition. 31 The absence of denial of natural justice becomes emphasized when attention is given to the next argument which complains that the plaintiff did not have the opportunity to cross examine Ms Siganisucu. The submission fails to look beyond the complaint and consider what might have been achieved by such cross examination. For this purpose, I set to one side the circumstance that, assuming the plaintiff was in possession of the standard form of guidance notes of which a copy is exhibited to his affidavit, he nevertheless did not seek to have the witness attend for cross examination either at the pre-trial or at the hearing. 32 It is theoretically possible but quite unrealistic to speculate that the witness might, if cross examined, abandon her stated opinion and agree with the plaintiff. What is able to be speculated as a high point of success on the part of the plaintiff would be his being able to persuade the assessor not to act upon the witness's opinion. In the event, this is what happened. The real essence of complaint is that the assessor did not accept the plaintiff's propositions about cultural traditions. The obvious meaning of the transcribed exchanges of this informal hearing was that the assessor declined to prefer one version over the other for the purposes of decision. She was able to determine the specific claim which was in the nature of detinue or damages for detention. She was able to do this on the material that had been placed before her in accordance with the procedures of the Small Claims Division. 33 It is next contended that there was no material supporting the findings of fact. There was ample material. There was no dispute that the artefacts were brought into the home of the defendant's sister, that the newborn was visited by the plaintiff and his group and that the artefacts were left behind at the house. The issue was whether the plaintiff was entitled to reclaim them. 34 I should acknowledge the reference by counsel to Horsley v Phillips Fine Art Auctioneers NSWSC (Santow J) unreported 5 September 1995. In that case his Honour made detailed examination, inter alia, of the concept of gift including the consequences of prior delivery and pre-existing possession by a donee. Nothing in that case offers a conclusion that the plaintiff in the present case should have succeeded or, more relevantly, that he was denied procedural fairness. It was faintly suggested that the case cited was authority for a proposition that the onus of proof shifted to the defendant. The plaintiff bore the onus in the action which he had instituted. 35 I turn to the fourth contention, the allegations in respect of which I have already set out. Counsel for the plaintiff has collected a number of authorities which speak of the duty of a judge or magistrate. The content of such duty is scarcely in doubt. There is a useful review in relation to the Small Claims Division of the Local Court specifically in Kojima Australia Pty Limited v Australian Chinese Newspapers Pty Limited [2000] NSWSC 1153. I would adopt what is set out therein. 36 A judgment as to whether the assessor failed in her duty can be made by examination of the material before her and the transcript of the proceedings. There was no attempt to point to any indication of bias on her part nor, except in relation to the matters with which I have already dealt, to point to any inhibition upon the plaintiff presenting his case. On the contrary a reading of the transcript shows a patient and conscientious conduct of an informal hearing wherein the assessor sought to understand just what was the essence and detail of dispute and what each party contended about it. The transcript also clearly conveys courtesy being afforded to the parties. I would expressly reject the proposition that the decision of the assessor was arbitrary, irrational or unreasonable. 37 Whilst what is incanted in this submission has recognizable source, for example (as cited) Australian Broadcasting Tribunal v Bond 1990 170 CLR 321 per Deane J, fair reading of the transcript of the informally conducted hearing rebuts the allegations. To observe that some of the expressions in the letter of demand were obscure did not demonstrate that it was arbitrary, irrational or unreasonable to conclude that it was inconsistent with the claim being made by the plaintiff. It was not incumbent on the assessor to deconstruct the document, parse it or conduct any particular form of analysis to reach her decision. 38 The submissions on behalf of the plaintiff, although couched in language seeking to keep them within the parameters of the limited availability of appeal, substantially complain about the assessor's reasons or their asserted inadequacy. I do not suggest that either is the case but, if expressed reasons are wrong that does not constitute denial of natural justice. Inadequacy of expression is an error of law not a denial of natural justice. Soulemezis v Dudley (Holdings) Pty Ltd 1987 10 NSWLR 247 contains a useful discussion on the history, rationale and scope of the judicial duty to give reasons. What is relevant in the context of a matter in the Small Claims Division of the Local Court is that, even if failure adequately to fulfil the duty had been able to be shown, it would constitute error of law which is outside of the scope of the limited remedy by way of appeal. 39 The nature of the informal hearing did involve asking questions from time to time by the assessor. Having regard to the plaintiff's oral assertion that the ceremony which he intended could not take place in the absence of the defendant's father, it was a poignant question by the assessor to enquire why, if that were the case, the plaintiff did not say that, "as the defendant's dad did not show up, the artefacts should be given back". She received no satisfactory response to that enquiry and I would comment that the outcome of the case was scarcely surprising in the light of that circumstance. 40 However, as I have said, the issue is to be gauged in the context of the statutory limitation. It is inevitable that an appeal, so limited to the grounds of lack of jurisdiction or denial of natural justice will fail. The grant of extension of time would be futile. 41 The motion filed by the plaintiff on 12 August 2005 is dismissed. The plaintiff is ordered to pay the defendant's costs of the motion.

Saqa v Bainivalu

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