Wakim v Mathiew Pty Ltd t/as Dove Migration Services

and "… at the end of the day, probably nobody's got a full recollection of anything, but certainly we don't believe the plaintiff, and I believe the Court can (not)* satisfy itself that the plaintiff has discharged her onus and has proved her case on the balance of the evidence." * There is a mistype in the transcript which records "can" where it clearly should read "cannot". 10 The address of the solicitor for the plaintiff clearly indicates that he was content to have the matter dealt with on the basis of the statements. The transcript also shows that there was no objection at all by such solicitor to the procedure adopted by the Magistrate.

APPLICABLE LAW 11 Section 69 of the Local Courts (Civil Claims) Act, 1970 (NSW) provides as follows: " 1 . Subject to sub section 2, all judgments and orders of a Court exercising jurisdiction under this Act shall be final and conclusive. 2. A party to proceedings under this Act who is dissatisfied with the judgment or order of the Court as being erroneous in point of law, may appeal to the Supreme Court therefrom. (2A) However, in the case of proceedings in the Small Claims division of a court, an appeal under subsection 2 lies only on the ground of lack of jurisdiction or denial of natural justice. 3. The provisions of s.101 to s.115, both sections inclusive, of the Justice's Act 1902, apply, to the extent to which they are applicable to appeals under subsection 2 in the same way as they apply to appeals to the Supreme Court under those provisions." 12 The Justices Legislation Amendment (Appeals) Act, 1998 was assented to in December 1998. It deleted the then existing Part 5 of the Justices Act, 1902, and substituted a new Part 5. The purpose of the Justices Legislation Amendment (Appeals) Act, 1998 was to reform the appellate process from Local Courts by substituting an appeal by way of summons to the Supreme Court in accordance with the Supreme Court Rules rather than by way of Stated Case or like procedure, as had been the situation under the provisions of the previous Part 5 of the Justices Act, 1902. 13 By virtue of s 102(3) of the amending Act, Part 5 is made to apply to appeals which are not criminal or quasi criminal in nature, but for the reasons stated in Pace v Read (2000) NSWSC 823, 18 August 2000 (unreported), s.102(3) does not effect an amendment to or repeal of s.69 of the Local Courts (Civil Claims) Act 1970. As a consequence the combination of s.69(2) and s.69(2A) of that Act results in the present appeal being restricted to error in point of law on the ground of lack of jurisdiction or denial of natural justice. (Kojima v Australian Chinese Newspapers [2000] NSWSC 1153). This means that in the circumstance of the present case Grounds of Appeal numbered 6, 7 and 8 in the grounds annexed to the summons are not open to the plaintiff, since they do not involve a point of law. Likewise grounds 1, 2, 3, 4 and 5 do not involve a point of law. They are, in effect, introductory statements of fact which appear to have been inserted to provide the setting against which the operative grounds of appeal are to be understood. 14 The Local Courts (Civil Claims) Act 1970 (the Act) provides that for the purposes of exercising the jurisdiction conferred on courts by or under the Act, the court is divided into a General Division and a Small Claims Division (s.61). The jurisdiction of the court in its Small Claims Division may be exercised by an Assessor or a Magistrate sitting alone (s.63). At the material time, the jurisdiction of the court sitting in its Small Claims Division was limited to $10,000 (s.12(3)). 15 The statutory basis for the procedure in the Small Claims Division is specified in s.23B of the Act as follows: "(1) Proceedings in the Small Claims Division of a court are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (2) The rules of evidence do not apply to an action being heard or other proceedings in the Small Claims Division of a court. (3) An Assessor or Magistrate exercising the jurisdiction conferred on a court sitting in its Small Claims Division may inform himself or herself on any matter relating to an action being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit. (4) Proceedings in the Small Claims Division of a court (other than any judgment given or order made in respect of the proceedings) are not required to be recorded." 16 A clear legislative policy emerges from the Act in relation to small claims, namely, that there should be a quick, cheap and informal resolution of such claims. To achieve this, the proceedings should be conducted with the minimum of formality. That 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. 17 It is against such a legislative framework and intent that the Small Claims Division of the Local Court has evolved procedures for dealing with small claims. Initially these were largely the work of the late Mr K Henderson, Magistrate, and these were followed for some years. From the very early days of the Act there have been different forms of hearing open to the parties to accept in order to progress their claims with a minimum of expense and formality and maximum of speed, having regard to the amount involved and issues posed in each case. The procedures originally formulated by the late Mr Henderson have now in essence been incorporated into a Practice Note of the Local Court. (Practice Note No.3/2001). It provides the procedure for the hearing of actions in the Small Claims Division of the Local Court and supersedes all previously issued practice notes. Relevantly it provides: "1 There is no right to call witnesses to give evidence, to give evidence on oath or to cross-examine a party or witnesses on oath or otherwise in the Small Claims Division.

2 At the Pre-trial review , the Magistrate or Registrar will give directions under Part 9 Rule 9 that the parties exchange written statements of the intended evidence of each witness, together with any other relevant documentation in support of each party's case. In determining whether a direction should be given at the Pre-trial review that a witness attend the hearing of an action to be orally examined, the Magistrate, Assessor or Registrar will have regard to the particular circumstances of the case, including the amount involved an whether there is a real issue as to credibility or a significant conflict in the evidence. The Case Management Orders given by the Magistrate or Registrar at the Pre-trial review shall be in accordance with the case management orders forming part of this Practice Note. 3 Where a direction has not been given at the Pre-trial review by the Magistrate, Assessor or Registrar for the attendance of any witness at the hearing of the action, the action 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. 4 ... 5 The option of a "formal hearing" - "the normal adversarial hearing, evidence being taken on oath, cross-examination and addresses" - will no longer be available in the Small Claims Division, such a procedure being repugnant to the Division's object of providing litigants with "a fast, cheap, informal but final resolution of their disputes" (Attorney General's Second Reading Speech, 22 November 1990). Where the court is of the opinion that the issues likely to arise in the action or cross-claim are so complex or difficult as to law or fact, or that the actions or cross-claim is of such importance that it should not be heard in the Small Claims Division, the court may order its transfer to the General Division. Such an order may be made at any time before judgment on the court's own motion or on the application of any of the parties. 6 The procedure at the hearing of the action in the small Claims Division will be determined by the Magistrate or Assessor."

18 Although the procedure to be adopted in the Small Claims Division of the Local Court is prima facie in accordance with paragraph 1 of the Practice Note, it is open to either of the parties to seek a formal hearing by having the matter transferred to the General Division of the Local Court pursuant to clause 5 of the Practice Note. Such an application can be made at any time before judgment. Furthermore, clause 6 of the Practice Note reserves to the Magistrate or Assessor hearing the action the question as to the procedure which will be adopted at the hearing. 19 The choice as to the forms of hearings open to the parties is made known in the relevant practice book and in any event is, or should be, well known to legal practitioners who appear in the Local Court. The decision by the solicitor for the plaintiff not to object to the informal type of hearing directed by the Registrar should be seen against the background of the choices available, the amount of the claim and the basis on which the plaintiff proposed to defend the claim made against her.

NATURAL JUSTICE 20 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. 21 The content of the requirements of natural justice is not fixed. The content fluctuates. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to:

(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. 22 These requirements emerge from the seminal decision of The King v War Pensions Entitlement Appeal Tribunal: Ex parte Bott (1933) 50 CLR 228 at 248 per Starke J. 23 The requirements of natural justice depend upon the particular circumstances of a given case or class of case. The decision in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 makes this clear. Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said: "… it must be borne in mind that these principles (of natural justice) are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker LJ said in Russell v Duke of Norfolk (1949) 1 All ER 109 at 118 : 'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth' This passage was approved by the Privy Council in University of Ceylon v Fernando (1960) 1 WLR 223 and was used by Kitto J in Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504. There His Honour observed: 'What the law requires in the discharge of a quasi judicial function is judicial fairness … what is fair in a given situation depends upon the circumstances' We agree with the foregoing statements of the relevant law. It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions in the field of the inquiry are of importance." (supra at 552-553) 24 Even in a given class of case the requirements of fairness may differ from case to case because of differing circumstances. In Salemi v MacKellar (No 2) (1977) 137 CLR 396 Stephen J said that the rules of natural justice "may also vary from case to case although each be conducted before one and the same tribunal or person" (supra at 444). This statement was adopted by Gibbs CJ in National Companies and Securities Commission v News Corporation Limited (supra at 312). 25 The requirements of natural justice do not mandate an oral hearing in every case. In White v Ryde Municipal Council (1977) 2 NSWLR 909 Reynolds JA, with whom Moffitt P agreed, said: "As a general proposition, it is plain enough that he who decides must hear. However, this must be understood in the sense that the decision maker has before him the evidence and submissions of those entitled to be heard. It is by no means a universal requirement that the decision making body must see and hear witnesses … So much appears from the leading authorities on this subject: Local Government Board v Arlidge (1915) AC 120 and Jeffs v New Zealand Dairy Production and Marketing Board (1967) 1 AC 551." (supra at 923)

(See also Jet 60 Minute Cleaners Pty Limited v Brownette (1981) 2 NSWLR 232 per Hunt J) 26 The immigration cases that have been considered by the Federal Court of Australia adopt a like approach. For example, in Chen v Minister for Immigration (1994) 48 FCR 591 it was said: "It is beyond argument that the rules of natural justice do not mandate in all cases an oral hearing for the person affected. This was recognised by the House of Lords in Local Government Board v Arlidge (1915) AC 120 at 133. There have been many developments of the law in this area since Arlidge but it remains clear that an oral hearing is not necessary in every case." (supra at 597); 27 In Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 the High Court considered a statutory power to warn off persons from race courses. The exercise of such a power casts serious aspersions on the character of the person warned off, exposes such person to the hazard of possible criminal sanction and may adversely affect the person's livelihood. The consequences of the exercise of the power can therefore be serious. In relation to the process involved in the making of such an order, Aikin J, with whom Stephen and Mason JJ agreed, said: "I do not think that fairness requires in this context an oral hearing though in some circumstances the Commission may well find that it cannot resolve inconsistencies between its information and written submissions from the person concerned without such a hearing. It is however for the Commission itself to devise its own procedures in the light of its obligation to act fairly " (supra at 516; bold added ) 28 The emboldened section of the extract from Heatley v Tasmanian Racing and Gaming Commission (supra) applies to a court such as the Small Claims Division of the Local Court as it does to the Commission referred to by the High Court in that case. 29 Similarly, the requirements of natural justice may not confer on a party the right to cross-examine in a given case. Beveridge v Dontan Pty Limited (1990) 23 NSWLR 13, which was concerned with a reference pursuant to Pt 72 of the Supreme Court Rules, makes this clear. The Referee, in accordance with the Rules of Court, accepted written statements signed by the makers of the statements. The unsuccessful party moved to have the Referee's report returned for further consideration on the basis that the Referee denied natural justice to such party by depriving it of the benefit of an oral hearing and of the opportunity of cross-examining one of the witnesses on his statement. Rogers CJ Comm Div posed the question: "Does natural justice require that the referee should have held a hearing and in particular given the defendant an opportunity of cross-examining …?" (supra at 21). He answered the question by holding that the unsuccessful party had not been denied natural justice by virtue of the procedure which had been adopted, albeit that it was denied an opportunity to adduce oral evidence by way of cross examination. (supra at 24). Several of the immigration cases in the Federal Court of Australia arrive at a like conclusion. 30 There may, however, be cases in which the denial of an oral hearing or of the right to cross-examine may constitute a denial of natural justice. In determining whether or not that is so in a given case, it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted. The Practice Note to which reference has been made is material in this regard. It is for the relevant tribunal, in this case the Small Claims Division of the Local Court, to determine such matters in the light of its obligation to act fairly.

ANALYSIS 31 There is no suggestion that the solicitor who appeared at the directions hearing on 9 November, 2001 was unaware of the usual procedure to be adopted in the Small Claims Division of the Local Court or as to the availability of the option given by clause 5 of Practice Note No.3/2001. In any event a competent solicitor would be expected to be aware of the option for a formal hearing. Such a hearing would carry with it likely additional costs in preparation and presentation and the prospect of a greater cost burden for the party who failed in such proceeding. 32 There is nothing inherent in the procedure adopted by the Small Claims Division of the Local Court that runs counter to the requirements of natural justice (Kojima v Australian Chinese Newspapers (supra)). 33 Furthermore, as already stated there was no objection by either party to the adoption of the procedure specified in the relevant Practice Note, directed by the Registrar and adopted by the Magistrate who heard the action. The parties were content to have their rights determined in accordance with the usual procedure applicable to small claims of the kind dealt with in the Small Claims Division of the Local Court. 34 No application was made at the hearing to vary the procedure directed by the Registrar. As I have already said the solicitor for the plaintiff was content to chance his arm on the basis of the two statements tendered, indeed it is apparent from his address that he saw the procedure as a source of possible advantage to his client having regard to the fact that the onus of proof lay upon his opponent. 35 No application was made on behalf of the plaintiff to the Magistrate at the hearing to call oral evidence or to cross-examine the defendant in these proceedings. As a consequence, the Magistrate was not called upon to make any decision in relation to such matters. In such circumstances it is not appropriate to assert, as the plaintiff does in Ground of Appeal No 11, that the plaintiff "was denied any opportunity to cross-examine". A party cannot sensibly be said to be denied that which it has not sought. The same line of reasoning applies to Ground of Appeal No 12. The Magistrate did not refuse to permit oral evidence (12(a)). He was never asked to allow it nor did the Magistrate err "in not requiring oral evidence and cross-examination" (12(b)). He was never asked to do so nor was it suggested that it would be appropriate in the circumstances of the case before him - a case which involved a claim for only $1,000. 36 The approach adopted by each of the parties in the proceedings in the Small Claims Division of the Local Court operated as an acceptance by them of the fairness of the procedure. In any event there is nothing in that procedure which would run counter to the duties referred to in paragraph 21 above or in the legal principles set out above. 37 It was submitted on behalf of the plaintiff that the Magistrate should have intervened on his own motion to change the procedure, order oral evidence and allow cross-examination. However, in this regard it should be noted that the case presented as a very ordinary claim. It was for a very small amount. There was no suggestion by the parties that the procedure was inappropriate nor does the record show that the issues likely to arise in the action were complex or difficult or that the matter was of such importance that it should not be heard in the Small Claims Division or that it should be transferred to the General Division (Practice Note No 3/2001, Cl 5). In my opinion this submission fails. 38 The amount awarded by the Magistrate was within jurisdiction. However, at the hearing of the present matter an amendment of the Summons was sought so as to claim that there had been an error in point of law by the Magistrate in arriving at his decision. Towards the end of the hearing it was submitted on behalf of the plaintiff that she should be permitted to amend so as to raise the following matter: "That the evidence before the learned Magistrate was insufficient to satisfy : 1. The onus of proof; 2. The relevant standard of proof and that as a consequence no determination of the matter in favour of the defendant could be made." 39 Notwithstanding the general approach of the court to the allowing of amendments (see Shannon v Lee Chun (1912) 15 CLR 257; Longhurst-Saunders v Cooper (1956) 73 WN (NSW) 455; Supreme Court Act s.63; Rules of Supreme Court Pt 20), the amendment was refused. This was because : (a) the defendant was not present at the hearing and to allow the amendment would have increased costs and occasioned delay ; and

(b) the amendment sought was such as necessarily to fail should it be allowed. 40 The ground sought to be added does not claim that there was no evidence to substantiate the claim made against the plaintiff in the Local Court. Indeed, the statements before the court included clear evidence that substantiated the claim against the plaintiff. The assessment of the evidence involved an adjudication of fact, not of law. The ground therefore does not fall within the provisions of s.69A of the Act. Furthermore, the question raised by the amendment which was sought does not go to the jurisdiction of the Local Court not does it involve a denial of natural justice. It is therefore a ground which is proscribed by s.69 (2A) of the Act.

SUMMARY 41 There was no denial of natural justice to the plaintiff by the Magistrate in the proceedings in the Small Claims Division of the Local Court. Nor was there any error of law on the part of the Magistrate which went either to jurisdiction or involved a denial of natural justice; indeed, no error at all has been demonstrated by counsel for the plaintiff. 42 For the foregoing reasons I am of opinion that the summons should be dismissed.

COSTS 43 When the matter was called on for hearing on 6 May, 2002 there was no appearance by or on behalf of the defendant. However, counsel for the plaintiff informed the court that the solicitor for the defendant had contacted his solicitor's office seeking an adjournment of the matter until 17 June, 2002. Such application was not consented to on behalf of the plaintiff. There was no one present to make such application and in any event the size of the claim did not warrant the matter being adjourned. No adjournment was granted. The matter was not reached in the duty list on 6 May, 2002 and was adjourned until 8 May 2002, with a requirement that the solicitor for the defendant be advised of the adjourned date. This was done. 44 On 8 May, 2002 the matter was listed for hearing at 11 a.m. At a time after the adjourned hearing had re-commenced, a message was received by my Associate that the solicitor for the defendant had been "caught up" and would not be available for another half hour. The matter proceeded and there was no appearance by or on behalf of the defendant when judgment was reserved in the matter at or about 1 p.m. on 8 May 2002. There has been no appearance for the defendant for the purposes of taking judgment. 45 In these circumstances it would, in my opinion, be inappropriate to exercise the discretion in favour of ordering costs to the successful party in the usual way. The appropriate order in my opinion is that there should be no order as to costs.

ORDERS 46 Summons dismissed No order as to costs.

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