Searston & Anor v Hawkesbury Equine Veterinary Centre

LEGISLATION CITED : Local Courts Act 1982 (NSW) - ss 70 & 73

Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 CASES CITED : Oliveri Legal Pty Ltd v Lohnring International Pty Limited [2004] NSWSC 987 Wakim Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 Wende v Finney [2005] NSWSC 927

David Searston (First Plaintiff)

PARTIES : Natalie Searston (Second Plaintiff)

J Parbury & A Drew t/as Hawkesbury Equine Veterinary Centre (Defendant)

Mr D Searston (Plaintiff in person) SOLICITORS : Mr J Parbury (Defendant in person)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10045/2006 - DAVID SEARSTON & ANOR v J PARBURY & A DREW t/as HAWKESBURY EQUINE VETERINARY CENTRE

JUDGMENT (Appeal decision of Local Court Magistrate; Small Claims Division - vet fees - horse - impacted gut) 1 HER HONOUR: By summons filed 4 January 2006 the plaintiffs seeks firstly an order that the Court overturn the decision of the Windsor Local Court, Small Claims Division, made on 14 October 2005 in file No 98/05; and secondly, the plaintiffs seek an order for the amount of $1,781 being the amount ordered by the Windsor Local Court of $1,107 plus the filing costs for that application $638 plus $36 for the costs of the Court transcript from the Windsor Local Court. 2 The first plaintiff is David Searston. The second plaintiff is Natalie Searston. The first and second plaintiffs are husband and wife. They were the defendants in the Local Court. The defendants (plaintiff in the Local Court) are J Parbury and A Drew t/as Hawkesbury Equine Veterinary Centre. The parties appeared in this Court in person and handed up written documentation. Mrs Parbury, who was the office manager, also attended Court. For convenience in this judgment I will refer to the parties by name; the first and second plaintiffs as the Searstons and the defendants as Hawkesbury Equine. 3 On 14 October 2005 the Magistrate entered judgment in favour of Hawkesbury Equine in the sum of $1,107.

Extension of time to appeal 4 On 14 October 2005 the Magistrate delivered judgment. The Searstons had 28 days from that date in which to lodge their appeal. The appeal should have been filed by 13 November 2005. On 4 January 2006 the summons was filed. The plaintiff's explanation is that it took over 21 days to obtain a record of the Local Court transcript and it took them further time to raise the funds to make this application. On 9 December Hawkesbury Equine issued a writ. On 20 March 2006 a notice of non-service levy by the Sheriff stated "numerous calls have been made at given address with cards left on each occasion. Judgment debtor has made no contract and appears to be avoiding the Sheriff's Office." On 31 March 2006 Mr Searston served the summons on Hawkesbury Equine. In my view the plaintiff had not adequately explained the delay in lodging this appeal. If there was a delay of 21 days in obtaining the transcript that means that the request was made well outside the time permitted to lodge an appeal. It is my view that an extension of time should not be granted.

The appeal 5 If I am wrong and an extension of time ought to have been granted I turn to consider the appeal. At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73(2) of the Local Courts Act 1982 (NSW) allows an appeal to this court on the grounds of lack of jurisdiction and/or denial of natural justice. Section 75 of the Act provides that the court may determine an appeal by either (a) varying the terms of the judgment or order or (b) setting the judgment or order aside (c) by setting the judgment or order aside and remitting the matter to the Local Court for determination in accordance with the court's directions or (d) by dismissing the appeal.

Grounds of a p peal 6 The Searstons appeal the whole of the decision of his Honour Magistrate A Cullen made on 14 October 2005. The grounds of appeal are firstly, that as Jamie Barnes, their veterinary surgeon, was away in Queensland attending a funeral they were not able to file his statement by 30 September 2005; secondly, that the Magistrate gave no consideration to the statement of Natalie Searston even though there was no statement or argument to the contrary by Hawkesbury Equine; thirdly, Hawkesbury Equine only filed their statements on the morning of the hearing and copies were handed to David Searston and the Magistrate allowed the defendants 20 minutes to read the three statements. Also further evidence was produced during the course of the hearing which had not been filed; and fourthly, the Magistrate refused to accept the argument of David Searston he was disadvantaged by the failure of Hawkesbury Equine to follow the rules laid down by the Court. 7 In Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 and Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J (at [23]-[24] and at [20]-[21] respectively) made essentially identical observations on natural justice. In Kojima he stated: "The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Court. This is clear from the nature of the function to be performed by that tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act. The content of the requirements of natural justice is not fixed. The content is fluctuating. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to: (i) act judicially; (ii) deal with the matter for decision without bias; (iii) give each party the opportunity of adequately presenting its case; (iv) observe the procedural and other rules provided for in the relevant statute; (v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice."

Overview of the Small Claims Division of the Local Court 8 The legislative policy in relation to small claims is that there should be a quick, cheap and informal resolution of these claims. To achieve this, proceedings are conducted with a minimum of formality. According to O'Keefe J in Wakim v Matheiw Pty Ltd [2002] NSWSC 405 at [16], the quick, cheap and informal resolution of claims: "…has many advantages. It tends to shorten proceedings. It assists in reducing costs. It does this in a number of ways, one of which is to make it easier for litigants in person to understand the procedures, perhaps to appear for themselves and not be disadvantaged by excessive legality, formality or procedural rules. Another is to give finality to decisions made in respect of small claims. This has been done by so framing the legislation as to ensure to the greatest extent possible that claims before the Small Claims Division of the Local Court should begin and end in that court. The limitation on the right of appeal permitted by the statute betokens this. Such a policy is readily understandable in the light of the fact that the ceiling for claims in the Small Claims Division is $10,000. Taking up the time of superior courts with such small matters is thus properly avoided in the vast majority of cases." 9 In determining whether the plaintiff was denied procedural fairness it is necessary to consider the nature of the jurisdiction exercised in the Small Claims Division. This is because the content of procedural fairness varies depending upon the nature of the tribunal and the jurisdiction it exercises. Section 70 of the Act provides: "Procedure generally in Small Claims Division

(1) The jurisdiction conferred by or under this Act on a Court sitting in its Small Claims Division is to be exercised by a Magistrate or an Assessor.

(2) Proceedings in a Court's 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 a Court's 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 a practice note.

(5) An Assessor or Magistrate exercising the jurisdiction of a 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 a Court's Small Claims Division (other than any judgment given or order made in respect of the proceedings) are not required to be recorded." 10 Practice Note 2 of 2005 at [10.1] to [10.4] reads: "10.1 There is no right to call witnesses to give evidence, to give evidence on oath/affirmation or to cross-examine a party or witnesses on oath/affirmation or otherwise in the Small Claims Division 10.2 Where a direction had not been given at the Pre-trial review by the Magistrate, Assessor or Registrar for the attendance of any witness at the trial of the proceedings, the proceedings will be heard and determined by each party tendering the written statements of witnesses together with any other relevant documentation or material in support of the party's case. There will be no right to examine or cross-examine any witness. Parties will, however, be entitled to make comments, present arguments and make final submissions on the evidence. 10.3 Where a direction has been given at the Pre-trial review by the Magistrate, Assessor or Registrar, that a witness attend for cross-examination, the proceedings will be heard and determined on the oral evidence and the written statements and other documents and materials which have been tendered. Submissions on the evidence will also be allowed. 10.4 The procedure at the trial of the proceedings in the Small Claims Division will be determined by the Magistrate or Assessor as he or she thinks fit" 11 In Wende v Finney [2005] NSWSC 927 Howie J at [27] and [28] made some pertinent observations about the proceedings in the Small Claims Division which I respectfully reproduce here. They are: "Of course informality and the abandonment of the normal rules of evidence and procedure should not be allowed to give rise to unfairness even where the justice being administered is in relation to relatively trivial claims. Rather in such matters the court might need to be particularly astute to ensure that the lack of formality and the speedy resolution of claims does not become an end in itself at the expense of the appearance of fairness to the parties within the court's jurisdiction. After all the formal rules of procedure that normally attend a hearing are generally aimed at producing fairness to the parties, sometimes at the expense of efficiency in the exercise of the court's jurisdiction. So where those rules are displaced by the need to provide cheap, efficient and expedient justice to the parties, the advantages can sometimes be obtained at too high a price so far as a particular litigant is concerned.

No doubt one of the reasons why the proceedings in the Small Claims Division are conducted with the informality required is that the parties before the court are, in advance of the hearing, aware of the material upon which the determination is to be made. There are procedures laid down and referred to in the Practice Note that require the parties to identify to each other the material they intend to rely upon. The material upon which each side relies, including statements of witnesses and the actual documents at the heart of the dispute, are in a form where they can be reviewed by the court assisted by such submissions that the parties wish to make upon those documents without the need to formally tender and prove the relevant material. …the intention of the scheme of the relevant legislation is that the dispute can generally be resolved on the documents." 12 In Wende a party tendered documents that were produced on subpoena during the hearing. Those documents alleged dishonesty and misconduct. Wende requested the opportunity to call witnesses to rebut that evidence. This request was refused. As it turned out, much of what the Magistrate read into his judgment from these documents was highly prejudicial to Wende. It was held that the failure to give Wende an opportunity to rebut that evidence constituted a denial of procedural fairness.

Local Court proceedings 13 In the Local Court Hawkesbury Equine sued the Searstons for the non payment of veterinary services provided from 7 to 16 June 2004 for the Searstons' horse "Abbey". The amount claimed was $1,284. 14 On 11 October 2004 the Searstons wrote to Hawkesbury Equine outlining their dissatisfaction with the services provided and disputing the account. In November 2005 Hawkesbury Equine wrote a lengthy letter to the Searstons addressing their concerns. The concerns expressed in the letter were similar to those raised at the hearing by Mr Searston. 15 On 21 June 2005 the parties attended a pre-trial review and undertook mediation where the issues in dispute were discussed. Ultimately the matter did not settle. 16 On 19 July 2005 there was a second pre-trial review. The parties were ordered to exchange statements by 30 September 2005 and the matter was set down for hearing on 14 October 2005.

The hearing in the Small Claims Division of the Local Court 17 In the Local Court Mr Parbury appeared and acted on behalf of A Drew who was his partner in Hawkesbury Equine Veterinary Centre. Mrs Parbury, the office manager also attended. Mr Searston appeared and acted on behalf of his wife Natalie Searston. Mrs Searston was not present. 18 At the commencement of the hearing the Magistrate enquired of the parties which statements they relied upon and whether they had been filed in the Court. Mr Searston had lodged his statements with the Court on the date set by the Registrar, namely 30 September 2005 (t 3). Mr Parbury explained that his statements had been lodged only on that morning. The reasons for his delay were that there had been a disaster in their practice as one of the vets had had a heart attack in Dubai, it was their busiest time of the year and they had been chaotic. This meant that the timetable had slipped by them. 19 Mr Parbury informed the Magistrate that the statements had been faxed "to David last night." [Mrs Parbury explained to this Court that the fax transmission showed that the fax had gone through]. The Magistrate asked Mr Searston if he had checked his fax. Mr Searston relied "Well I only plug it in when I know someone is going to send me a fax because it's my phone as well …" 20 Mr Parbury said that they had actually rang Mr Searston's number and left a message saying that they would be faxing the information through to him. Mr Searston did not return the call. [Mr Searston explained to this Court that he did not get the message. He had moved houses on the property and the new house had a different phone number and that he did not get the fax]. 21 The Magistrate informed the parties: "…now each of you have to go outside and sit down and read the statements, that will take some little time, 20 minutes or so. When you have done that you then have to have a discussion between each other and try and reach an agreement, that's compulsory under the legislation. I will call you back in half an hour or so and I will see how you're going. So that's the sequence. Read the statements, speak to each other and then I will call you back in." 22 The matter was listed "not before noon" and the parties were directed to return at 12 o'clock. During the adjournment the parties were not able to reach an agreement. 23 When the hearing resumed, both parties handed up statements, Mr Parbury's being statements of himself, Nicholas Kannegieter, a specialist equine surgeon and Anthony Drew a veterinary surgeon at the same practice. Mr Searston handed up his statement together with that of his wife. Each party were given an opportunity to present their case and make submissions. During the hearing, the Magistrate asked various questions including ones concerning blood tests and Butzadolidin toxicity ("Bute"). 24 The Magistrate when giving his reasons for judgment summarised the dispute being firstly, whether appropriate treatment was given, whether there needed to be two visits by the vet Alison on the first day, and whether Abbey (the horse) should have been hospitalised and whether the amount charged was correct. The Magistrate was satisfied that the hospital treatment was necessary and the fee for the treatment on the first day should have been reduced (t 20, 21). 25 Mr Searston submitted that he was denied natural justice, firstly, because he lost the opportunity to get an expert veterinarian's report; secondly, the Magistrate did not consider the statement of Natalie Searston; and thirdly, the Magistrate did not follow the rules of laid down by the Court and the case of Oliveri Legal Pty Ltd v Lohning International Pty Limited [2004] NSWSC 987 (20 October 2004) 26 It is my view that by the time the matter was heard in the Local Court the issues in dispute were well known by each party. There had been detailed correspondence in October 2004 (prior to proceedings being commenced) and the parties had been to mediation. The issues of the "Bute" diagnosis was always in dispute. That being so, Mr Searston had an opportunity to obtain a vet's opinion prior to the date set for the exchange of statements but left it too late. 27 Oliveri Legal is a decision by Associate Justice Malpass in which he held that the rejection of documents served late did not, in the circumstances, constitute a denial of procedural fairness in the Small Claims Court. While it is trite, each case depends on its own facts and circumstances. The Magistrate did not err in his approach to the Oliveri Legal decision. 28 In oral submissions Mr Searston complained that the Magistrate asked questions of the vet about "Bute". Section 70 permits a Magistrate to inform himself or herself on any matter in proceedings. Mr Searston submitted that the office manager provided a handwritten account which was allowed at the hearing. But this was done because according to Mrs Parbury Mr Searston did not know what the outstanding balance was as he did not have the vet's account with him. Finally, Mr Searston submitted that his wife was not responsible for the debt. In her statement she said that that she never had an account with the vet nor had she ever been sent an invoice from them requesting her to pay the bill. The Magistrate stated that he read the statements which would have included that of Natalie Searston. The defence has not been included in either parties documents. Nor did Mr Searston raise this issue in submissions. The records that are before the Court (Exs A & 1) do not constitute an accurate record of what was before the Magistrate. 29 It is my view that both parties were given an opportunity to present their case and make submissions. The dispute over $1,170 occupied two pre-trial directions, one mediation and a hearing. There must be some proportionality between the amount in dispute and the costs and time involved in resolving that dispute. 30 It is my view that here has not been denial of natural justice or procedural fairness. The appeal is dismissed. The decision of the Magistrate made on 14 October 2005 is affirmed. The summons filed 4 January 2006 is dismissed. 31 Costs are discretionary. Costs normally follow the event. The plaintiffs are to pay the defendant's costs as agreed or assessed.

(1) Leave to grant an extension of time to file the appeal is refused.

(3) The decision of the Magistrate made on 14 October 2005 is affirmed.

(5) The plaintiffs are to pay the defendant's costs as agreed or assessed. **********

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