Sterjovski v Buckley

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10157/2003 - MICHAEL & MARISA STERJOVSKI v JOHN BUCKLEY

JUDGMENT (Appeal decision of Local Court Magistrate -- joint expert report) 1 MASTER: By summons filed 31 December 2002, the plaintiff seeks to appeal the decision of Local Court Magistrate S Emmett made on 3 December 2002 and an order that the supplementary expert's report of John Beresford be allowed into evidence. The plaintiffs relied on the affidavit of Lisa Powell sworn 22 September 2003. The defendant relied on the affidavit of Lana Gough sworn 8 October 2003. This matter has been referred to a Master for hearing by the list Judge.

Grounds of appeal 2 The grounds of appeal are firstly, that the Magistrate erred in law in denying natural justice in that she failed to consider the supplementary report of the plaintiffs' expert; secondly, the Magistrate erred in law in finding the plaintiff should be bound by the joint expert report as filed in the face of evidence that the report did not accurately represent what had been agreed between the experts; and thirdly, the Magistrate erred in law in finding that the plaintiffs should be bound by the joint expert report in the face of evidence that the plaintiffs' expert wished to withdraw his agreement to some point of the joint expert report. 3 The plaintiff submitted that leave is not required in respect of this appeal, being an appeal pursuant to s 69(2) of the Local Courts (Civil Claims) Act 1970 (the Act) - see s 104(5) of the Justices Act 1902 and Rayhill v Mouwad [2001] NSWSC 676 (8 August 2001, Kirby J). Section 69 of the Act was amended (effective 20 December 2002) to insert s 69(2B) requiring leave to appeal from an interlocutory judgment or order (see Courts Legislation Miscellaneous Amendments Act 2002). The plaintiffs submitted that these amendments do not affect their accrued right to appeal as at 3 December 2002 which did not require leave (s 30(1)(e) of the Interpretation Act 1987). The plaintiff does not need leave to appeal. An appeal lies to this Court on a question of law. 4 Section 69(4) of the Act provides that the court may determine an appeal by either setting the judgment or order aside or by varying the terms of the judgment or order or by setting the judgment or order aside and remitting the matter for determination in accordance with the court's directions or by dismissing the appeal.

Local Court proceedings 5 The claim in the Local Court alleges negligence by the defendant, a licensed builder, in his pre-purchase inspection of a property and provision of a building inspection report on behalf of the plaintiffs in about December 1995. The plaintiffs allege that the report provided by the defendant failed to identify numerous defects in the respective property. The plaintiffs purchased the property on reliance of the defendant's report and claim damages in respect of the alleged unidentified defects in the sum of $17,000.00 to $24,000.00. 6 On 2 September 2002 the matter came on for hearing before Emmett LCM. Her Worship admitted a joint experts report into evidence and refused the plaintiff leave to file and rely upon a further report by John Beresford. 7 On 2 September 2002 the Magistrate asked the parties whether there was any reason as to why making an order pursuant to Part 23 r 1E was not a sensible course. Both parties did not have any reason (t 12). Pursuant to Part 23 r 1E of the Local Court (Civil Claims) Rules 1988, the Magistrate ordered that the parties respective experts, Mr Beresford and Mr Cornish hold a conference at the property, in the absence of the parties' legal representatives, and produce a joint report specifying matters agreed or matters not agreed and the reasons for any non-agreement. That report was to be filed by 15 November 2003. 8 Part 23 r 1E of the Local Court Rules reads: "Conference between parties (1) A court may, on application by a party or of its own motion, direct expert witnesses to: (a) confer and may specify the matters on which they are to confer, and (b) endeavour to reach agreement on outstanding matters, and (c) provide the court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement. (2) An expert so directed may apply to the court for further directions. (3) The court may direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of the legal representatives at the option of the parties. (4) The content of the conference between the expert witnesses is not to be referred to at the hearing or trial unless the parties affected agree. (5) The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court." 9 The joint report was duly filed in Court by the plaintiffs. On the top right hand corner of the Scotts schedule (which is the joint experts report) there is a handwritten note which says: "Expert Conclude 28.10.02

Those items agreed as To Quantum are v." 10 It was then signed by both Mr Beresford and Mr Cornish. Their initials appear at the bottom of each page. Ticks appear in a column marked "Judge" against most items in the Scotts schedule. 11 The plaintiffs submitted that the Magistrate erred in law in refusing the plaintiffs leave to file and rely on the supplementary report; and holding that the plaintiffs were bound by the joint expert report in the absence of the plaintiffs' consent. The plaintiffs also submitted that by holding them bound, in the absence of their consent, by their expert's error the Magistrate erred in law (Part 23 r 1E(5) and that the Magistrate, in determining that the maximum quantum of the plaintiffs' claim was limited to $7,012.00, erred. 12 On 3 December 2002 at the hearing before Magistrate Emmett, the solicitor for the plaintiffs stated that although the joint experts report was signed by Mr Beresford it did not reflect what he had intended to agree to (t 1). The plaintiffs objected to the report being tendered in evidence and sought to rely upon a supplementary report. Mr Wilson (t 9.15) submitted that he wanted to make it clear that Mr Beresford in his correspondence raises two issues, namely that he asserts that the document as filed did not reflect what he understood to be the agreement, that the experts were not ad idem even though the tick appears and Mr Beresford sought to withdraw his agreement having reconsidered the matter having gone back to the house. As I understand it, the effect of this joint report is that the plaintiff was limited to a maximum quantum of $7,012.00 not an amount of between $17,000.00 and $24,000.00 as claimed. 13 The Magistrate commented that there was nothing before her in evidence as to what caused this mistake on the part of Mr Beresford or how he came to agree and sign it in the first place. The Magistrate examined the joint experts report and took into account the costs to the parties in debating the costs of figures such as $42.00. 14 The Magistrate refused the plaintiffs' application and stated (t 9.25): "…I think that in the circumstances I should receive this report as the joint report of the parties and the matter will proceed on that basis and I don't propose to grant leave to file any further report in the circumstances." 15 As neither party was ready to proceed on that day, the Magistrate adjourned the matter on the basis that the dispute was defined by the Scott schedule. 16 The principles according to which this court is to decide whether the Magistrate's discretionary decision are stated definitively in a short passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505. It is, I think, useful to re-state them as follows: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 17 The parties agreed for the experts to confer and produce a joint report (t 12.20-30 & 43, t 14.37-48; t 19.40-55 - 2 September 2002). Where the parties agree to be bound on any specified matter, the report may be tendered as evidence of the matter agreed (Part 23 r 1E(5)). Otherwise, the report may be used or tendered at the trial only in accordance with the rules of evidence and the practice of the Court. 18 Both parties, at least up until just after the joint experts report was filed in Court, intended the report would have been tendered in evidence. In any event the Court's decision to accept or reject the joint experts report and/or the supplementary report were discretionary. It was open to the Magistrate to accept the report of the joint experts in evidence and reject the supplementary report. 19 It is my view that there is no error of law. The appeal is dismissed. The order of Magistrate E Emmett dated 3 December 2002 is affirmed. The summons is dismissed. 20 Costs are discretionary. Costs normally follow the event. The plaintiffs are to pay the defendant's costs as agreed or assessed. 21 The Court orders:

(2) The order of Magistrate S Emmett dated 3 December 2002 is affirmed.

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

Last Modified: 12/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.