Tadiaman v Eastern

PARTIES: Frederick Tadiaman Fiona Eastern

Mr Gower for Plaintiff COUNSEL: Mr Maybury for Defendant

SOLICITORS: Insight Litigation and Legal Services Pty Ltd & Legal Employment Consulting and Training Pty Ltd for Pltff William Roberts Lawyers for Def

This is an appeal from a decision of the Small Claims Division (SCD) of the Local Court comprising a magistrate, His Honour, Magistrate Favretto. The appeal relates to His Honour's ruling dismissing the Plaintiff's Notice of Motion to strike it out a subpoena issued by the Defendant on the grounds that it had no legitimate forensic purpose.

The Plaintiff's claim is for damages for negligence arising out of a motor vehicle accident. The particular damages claimed relate to the Plaintiff's hire of a replacement vehicle while his vehicle was off the road being repaired. The amount in question is less than $1,500 but there are nineteen other such claims in the pipeline affected by the decision.

The only right of appeal a party has from a decision of the SCD is contained in s73 of the Local Courts Act 1982. Section 73(2) provides that a party to proceedings who is dissatisfied with the judgment or order of a Court sitting in its Small Claims Division may appeal to the District Court against the judgment or order, but only on the ground of: (a) lack of jurisdiction or (b) denial of natural justice.

The present appeal by way of summons seeks to appeal His Honour's decision on what is stated in the summons to be that His Honour "erred at law and denied the plaintiff natural justice in finding…etc". Thereafter the summons sets out a number of circumstances where it is alleged that His Honour "erred in interpreting", "erred at law in finding", "erred in not finding", "erred at law in applying" or "erred at law in failing to find."

At first blush, none of those matters relate in any way to behaviour on the part of His Honour or the court that would constitute a denial of natural justice. In particular, there is no suggestion that the Plaintiff or his representative were not given a fair hearing. Nor is there a suggestion that the Plaintiff was denied the opportunity to present relevant material and make appropriate submissions or that the SCD acted on evidence that had no probative value.

For the purpose of an appeal such as this, the Plaintiff would need to demonstrate that His Honour's decision was one that was so permeated with error that it constituted a denial of natural justice. An error of law or an erroneous ruling in an interlocutory matter is not a decision "vitiated by error" and there is no appeal from such an error of law. Dissatisfaction with the SCD's rulings on facts, procedure or law does not necessarily mean that there has been a denial of natural justice or that there has been an excess of or a lack of jurisdiction.

Regard must be had to the objects of the legislation, rules, practice and procedure in the SCD of the Local Court.

Section 70 subsections (2), (3) and (4) of the Local Court Act requires such proceedings to be conducted with as little formality and technicality as proper consideration permits. They also exclude the application of the rules of evidence, limit cross-examination and allow the court to inform itself on any matter relating to the proceedings being heard, in such manner as the court thinks fit.

In that regard, His Honour's view that the proceedings were subject to a strict pleading regime, even if wrong, does not constitute a denial of natural justice, and in any event would have no bearing on the eventual outcome.

The area of dispute in this matter and, I am informed, in the remaining nineteen other matters, is whether the Plaintiff, in each case, can prove damages of the kind and to the extent claimed and the Defendant's capacity in each case to meet the claim made. If it was thought that this issue was becoming so controversial, I note that the court, or the parties, can move to have the matter transferred to the court's general jurisdiction, where an appeal does lie to the Supreme Court, albeit on error of law only.

Common sense appears to have disappeared out the window in the parties approach to these matters or else there is a desire to un-necessarily increase legal and other costs. Where negligence is admitted, as is the case here, the Plaintiff is entitled to damages reasonably consequent upon that negligent act, subject to a duty to mitigate those damages. For example, it would not be reasonable for a person to hire a new BMW to use in place of a damaged Holden Barina. Likewise there may be circumstances where it is not necessary or reasonable to hire a replacement car at all. On the other hand, there may be circumstances of urgency or availability that would allow of the hire of a vehicle different to the vehicle being repaired at a higher rate than might otherwise be usual. It is a matter for a plaintiff to prove, only on the balance of probabilities, that they have actually sustained such damage and that the amount claimed is reasonable in all the circumstances of the case, remembering at all times that this exercise is carried out within the relatively informal processes of the SCD.

Whilst I am somewhat perplexed of the need to be issuing subpoenas at all in the SCD, the procedure is allowed for and to use it could not be considered beyond jurisdiction or a denial of natural justice. From 7/7/06 subpoenas could be issued in the SCD under the Uniform Civil Procedure Rules, r33.2. The power to do so has been delegated to the Registrar. I am told that the Local Court has, since these matters, now directed that subpoenas are not to be issued in cases such as the present. However, the subpoena in this case was lawfully issued.

What essentially Mr Gower argues is that the decision on the subpoena has in effect put this plaintiff, and will put other plaintiff's in a similar position, to unreasonable trouble and expense to produce documents that are not relevant to the matter to be decided by the court. If allowed to stand, that decision will make it far more difficult to have these claims dealt with fairly, expeditiously and without unnecessary cost, contrary to the clear intent of the legislation.

The subpoena in question is annexure A to this judgment. Paragraph 1 of a subpoena in similar terms was held to be irrelevant by Assessor Olischlager in a SCD matter of Michaleff v Dumer (20490/08, 29/6/09) whose judgment has been made available to me today. Mr Maybury for the Defendant says that this decision is not relevant to the issue I have to decide and is merely the differing view of another judicial officer.

In Wende v Finney 2005 NSWSC 927 Howie J said at paragraph 27 that "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." Considerations such as these were no doubt a matter of concern to His Honour in deciding the issue.

Even if an error of law be demonstrated, unless the error is material to the outcome of the case it will be of no avail to an appellant. (see Hamod v Suncorp Metway Ins LTD (2006 NSWCA 243) Basten JA at paragraph 11).

In the present case, all the plaintiff can say at best is that His Honour's decision in regard to the subpoena was wrong at law and that wrong decision has created a procedural unfairness leading to a denial of natural justice for himself and other plaintiffs, because complying with such subpoenas will create added delay and expense in having these minor claims dealt with. The defendant says that this court is only concerned as to what has happened in the past, not what may or may not happen in the future. I do not necessarily agree with that proposition.

Further, it is argued that statements from the bar table are not evidence and that there is no evidence of actual oppression on the part of the plaintiff in having to respond to the subpoena.

There is no evidence that the subpoena was issued to achieve an illegitimate forensic purpose such as to cause delay and obfuscation, although that may be an available inference given the extent of the material sought. The Defendant apparently wants to run some argument in relation to impecuniosity, which is said to be the reason why this financial material is required from the Plaintiff. Whether such an argument is ultimately successful will depend upon the court hearing the matter, but I presume that if it is unsuccessful, the Defendant will be liable for any costs thrown away by the plaintiff's compliance with the subpoena. I am unaware of whether or not the SCD can award costs against legal practitioners personally if they have done something to un-necessarily delay proceedings or make proceedings more complex than necessary.

Had it been up to me, I would find that the matters sought in paragraph 1 of the subpoena are indeed irrelevant to any issue to be determined, and do not serve any legitimate forensic purpose in light of the jurisdiction of the SCD and the manner in which claims are to be dealt with in that jurisdiction. However that is my view and even it is a correct view of the law, it does not justify this court interfering in the SCD's procedures on the basis that there has been a denial of natural justice.

Even if it were possible to establish that such subpoenas constituted an abuse of the SCD's procedures, unless such abuse would result in a flawed outcome of the case in question, it would not justify this court to statutorily interfere in His Honours decision (cf R v Edwards [2009] HCA 20). I can understand that compliance with the subpoena may be difficult and time consuming but again, that does not constitute a denial of natural justice in the particular circumstances.

I can only hope that the matters proceed with the parties exercising some commonsense in regard to the nature and amount of the claim and the SCD's jurisdiction and procedures set out by statute.

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