Droga v Cannon

This is the hearing of two Motions in an appeal brought by the Plaintiff from a decision of Magistrate Bradd in the Local Court on 18 June 2015. Both Motions concern the form of the Plaintiff’s Summons appealing from that decision.

The proceeding below was an action for damages arising from a motor vehicle collision. The Court gave judgment for the Plaintiff in the sum of $11,416.97. It subsequently awarded the Plaintiff only 40% of her costs and ordered the Plaintiff to pay 60% of the Defendants’ costs and that those latter costs should be paid on an indemnity basis after 17 June 2015.

The Court below ordered general damages for loss of use assessed by reference to interest on the capital value of the Plaintiff’s vehicle. The Court below declined to assess general damages for loss of use claimed by reference to the cost of hire of a replacement vehicle because it was not satisfied on the evidence that the Plaintiff had a need for a replacement vehicle at any material time. The present appeal is in substance an appeal against the Court below’s assessment of that part of the Plaintiff’s damages that consisted of the loss of use claim.

The grounds of appeal in the Summons filed 16 July 2015 were these:

The Defendants objected to paragraph 4 of the appeal grounds on the basis that it was not a question of law, and because it was vexatious and embarrassing. The inclusion of this ground also caused a potential problem for the Defendants in being able to brief counsel who had appeared for them in the Court below by reason of Rule 101(f) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 which provides:

Following the Defendants’ objection to ground 4 there ensued lengthy correspondence between the solicitors for the parties concerning the form of the Summons. During the course of this correspondence the Plaintiff gave notice that she wanted to amend the Summons both to add some grounds in relation to the damages assessment and also some grounds arising out of a subsequent costs judgment by the Magistrate.

It is not necessary to set out all of that correspondence nor the various proposed forms of the amended summons. It is sufficient to note that the Defendants indicated that they did not object to any amendments proposed by the Plaintiff except to the extent that paragraph 4 remained in the Summons either in its unamended form or in some modified form.

The final form of the Summons that the Plaintiff wished to file was the following:

That form of the proposed amended summons was sent to the solicitors for the Defendants under cover of an email of 26 August 2015 which said this:

On 27 August 2015 the matter was before the Registrar. The Defendants had prepared consent orders providing for them to file a Notice of Motion by 10 September 2015 for orders striking out appeal ground 4. There was a direction for the service of evidence. The consent orders then contained an additional term in handwriting as follows:

The result was that the Defendants filed a Notice of Motion on 10 September seekingt, pursuant to r 4.15(1)(a) Uniform Civil Procedure Rules 2005 (NSW), alternatively pursuant to s 23 of the Supreme Court Act 1970 (NSW), an order that paragraph 4 of the appeal grounds be struck out. On the same day the Plaintiff filed a Summons seeking leave to file an amended summons in the form of annexure “I” to the affidavit of Vanessa Leonie Naidu of 10 September 2015. That is the form of the amended summons set out in paragraph 8 above. Both of those Motions came before me for hearing on 12 October 2015. The parties agreed that the only issue between them was whether paragraph 4 in the Summons or the proposed amended summons should remain. The Defendants had no other objection to the proposed amended summons.

The Plaintiff purports to appeal as of right to this Court. The only appeals as of right from the Local Court to this Court are on a question of law: s 39 Local Court Act 2007 (NSW). The Defendants submit that ground 4 does not disclose an error of law and is otherwise vexatious and embarrassing. The Plaintiff submits that the ground clearly raises an error of law because it involves a breach of s 56(4) Civil Procedure Act 2005 (NSW).

The complaint at the heart of the appeal arises in this way. The only issues in dispute, the Plaintiff asserts, were the duration of the Plaintiff’s loss of her vehicle and the daily sum charged for the hire vehicle. The Plaintiff says that she did not prove “need” for the hire car because it was not a matter in dispute. The Plaintiff says that, nevertheless, in his closing submissions Mr Oliver, counsel for the Defendants, asserted that the Plaintiff had failed to prove the need for the hire car.

So that the Plaintiff’s submissions can be understood it is necessary to set out at some length the transcript of part of the closing submissions.

The Plaintiff justified the inclusion of ground 4 by reason of what appears in s 56(4) of the Civil Procedure Act and what was said by Allsop J (as his Honour then was) in White v Overland (2001) FCA 1333 at [4], a passage subsequently approved by the Court of Appeal in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 at [28] and again in Baulderstone Hornibrook Engineering Pty Ltd V Gordian Runoff Ltd [2008] NSWCA 243 at [160]. The Plaintiff submitted that if ground 4 was not permitted there would be no basis for reliance on those authorities. In any event, the Plaintiff submitted, s 56(4) specifically directed attention to the acts and omissions of the legal representatives of the parties.

The Plaintiff’s submissions appear to me to contain a number of misconceptions.

First, it does not seem to me that there is any basis in what transpired at the hearing for the assertion that the Magistrate allowed the Defendants’ legal representatives to conduct the matter contrary to s 56(4) of the Act by allowing a party to be in breach of s 56(3). The transcript does not disclose any objection to what the Defendants’ counsel did. Rather, the Plaintiff’s counsel said that she was somewhat embarrassed that she had closed her client’s case without leading evidence to prove the need referred to. No submission was made that the Magistrate should either not permit the Defendants’ counsel to make the submission in the circumstances of the agreed issues or even that he should disregard the submissions for that reason.

I endeavoured to ascertain from Ms Walsh for the Plaintiff when it was that the Magistrate should not have allowed Mr Oliver to have conducted the case in the way he did by raising the issue of need in his closing address. I did not get any assistance to determine that matter.

The learned magistrate clearly had s 56 in mind during the argument, not only because of the references to the “interests of justice”, but also because he referred to the “need for the hearing to be conducted in a “just, quick and cheap” manner. At no stage, however, was a submission made to him that s 56 would be transgressed if the Defendants were permitted to take the course they had. Rather, the submissions were all directed to what the Plaintiff wished to do to rectify the position she found herself in. Implicit in the way the matter was put to the magistrate (“our failure to prove need”) was the notion that s 56 had not been breached by the Defendants.

The Plaintiff submitted at the hearing of the motions that her references to the “interests of justice” was another way of asserting reliance on s 56, but what was being put was not that the Defendants had breached s 56 but that the Plaintiff wished to invoke s 56 to be allowed to re-open or obtain an adjournment.

The ground is unarguable because it has no underlying factual basis. In that way it is vexatious and embarrassing.

Secondly, the Plaintiff’s submissions ignore the principle that, unless the contrary is shown, the conduct of the case and submissions made come about on the instructions of the client. That does not mean, as the Plaintiff’s submissions seem to suggest, that the clients have or need to have a complete understanding or, indeed, any understanding, of the reasons that a certain course is followed or a certain procedure is adopted by the legal representative conducting the case. There was no evidence to suggest at all that Mr Oliver was acting beyond instructions in the course he took.

The Plaintiff may be correct in directing criticism at the Defendants and their legal representatives generally for the way in which the case was conducted – that is not a matter on which I make any comment nor is it a matter which I have to decide on the present Motions. The point is, however, that if raising the issue of need in the closing address was contrary to what was agreed as the issues in the matter, any breach on counsel’s part is a breach attributed to the client. Such breach on the part of a client is contained within ground 3B. Any fault on the Magistrate’s part in that regard is contained within grounds 3A and 3B.

It is incorrect in this regard to say, as the Plaintiff now submits, that the Plaintiff would be unable to rely on the authorities referred to unless ground 4 remained in the Summons. In White v Overland Allsop J said at [4]:

In Baulderstone Hornibrook Allsop P (with whom Beazley and Campbell JJ agreed) said:

These passages show that, ordinarily speaking, the responsibility of complying with s 56 lies with the legal representatives of the parties, although that does not overlook the obligations on the parties themselves under s 56(3). In the ordinary course, failures by the legal representatives (in breach of s 56(4)) will be the failure of the parties because the parties are bound by the acts and omissions of their legal representatives.

Thirdly, an error on the part of a judicial officer in permitting something to occur that, on appeal, is held not to have been in compliance with s 56, will not necessarily be an error of law simply because s 56 was involved, and in most cases will not be an error of law. Decisions that rely or ought to rely on s 56 will chiefly be discretionary decisions, such as whether amendments or adjournments should be permitted, or whether a party can rely on evidence or pleadings which were filed contrary to directions of the Court. Many or most breaches will be breaches of a procedural requirement imposed by a court or by the Rules or both.

Procedural error which amounts to procedural unfairness will amount to an error of law. Grounds 3, 5, 6 and 7 are grounds that in substance rely on a breach of procedural fairness to the Plaintiff. The position with other procedural errors it otherwise.

Although the present proceedings are an appeal and not proceedings for administrative review, some light is cast on the result of a breach of a procedural requirement in administrative law by what appears in Aronson & Groves, Judicial Review of Administrative Action (5th Edition 2013, Thomson Reuters) at [6.240]:

As I mentioned earlier, no objection was taken to Mr Oliver’s having made the submission about need or that the Magistrate allowed it nor was it submitted that the Magistrate should have disregarded it because it went beyond the agreed issues. In the first place, it is difficult to suggest error on the part of a judicial officer when it was never put to that person that he or she should take or not take a particular course or make a particular ruling: see in a different context but dealing with the same principle Avery v R [2015] NSWCCA 50 at [72] and Zreika v R [2012] NSWCCA 44 at [80] and [82].

If it was, nevertheless, an error, it was a procedural error which I consider was waived by the failure to object or make such a submission.

Even if the error in ground 4 is established, such error did not amount to procedural unfairness. If there was procedural unfairness (and it would be inappropriate for me to express any opinion about that on the present Motions) it was in the failure to permit the Plaintiff to lead evidence or to take some other steps to deal with the situation with which she was faced after Mr Oliver’s submissions. There was no procedural unfairness as such in either the Magistrate allowing Mr Oliver to make the submission or thereafter considering the submission.

In my opinion, ground 4 does not amount to an error of law.

Fourthly, nothing is or can be achieved by the Plaintiff in drawing the distinction between the Defendants in ground 3B and the Defendants’ legal representatives in ground 4. If there was a separate error of law (that is, separate from an error which produced procedural unfairness) by the Magistrate in allowing a breach of s 56 of the Civil Procedure Act (a matter which I doubt but which was not argued) the Plaintiff will either succeed or fail on ground 3B being upheld. Where there is no evidence, and it is not asserted, that Mr Oliver acted without instructions in making the submissions in his final address, the Plaintiff could not succeed on ground 4 if she failed on ground 3B. To allow ground 4 to remain would carry with it the implied suggestion that Mr Oliver acted beyond his instructions. In the absence of any evidence or assertion to that effect it is vexatious and embarrassing for ground 4 to remain in the Summons.

It needs also to be said that the Summons and the proposed amended summons are typical of documents containing grounds of appeal where the same ground in substance is expressed in a number of different ways using slightly different expression. Putting aside grounds concerned with costs there are really two matters of substance that arise from the Magistrate’s decision. The first is an arguable denial of procedural fairness in entertaining submissions about need, if that was not an issue in dispute, and by not permitting the Plaintiff to reopen her case in that regard. Grounds 1, 2, 3, 3A, 3B, 4, 5, 6 and 7 all concern the first issue of substance. The second issue of substance concerned the failure to give adequate reasons, dealt with by ground 8.

Associated with that is the need to ask what is achieved by grounds 3A, 3B and 4 in any event. Without anything more, success on those grounds leads nowhere.

The amount in dispute does not justify the expression of so many grounds of appeal that are ever so slightly differently calibrated, let alone the costs of this interlocutory dispute.

For the reasons given, what is contained in ground 4 is not a ground asserting an error of law and it is vexatious and embarrassing. If the Plaintiff does not file an amended summons, ground 4 of the existing summons will be struck out. If the Plaintiff seeks to file the amended summons, leave will be given to file a summons in the form of annexure “I” to Ms Naidu’s affidavit omitting ground 4.

The Plaintiff must pay the costs of the Defendants’ Motion to strike out ground 4.

The Plaintiff resists a costs order in relation to her own Motion seeking leave to amend. She says that the Defendants are responsible for making that Motion necessary because they would not agree to the Plaintiff amending the Summons that contained original ground 4 or any modification thereof.

The Plaintiff relies on the email of 26 August 2015 (paragraph 9 above) but it is not clear how that assists the Plaintiff. The Motion to amend was not necessary until there had been a determination of the Defendants’ Motion to strike out ground 4. The Defendants have made clear all along that their only objection to any form of the amended summons was ground 4. If the Defendants’ Motion was determined unfavourably to the Defendants there could have been no further objection to the filing by the Plaintiff of the amended summons including ground 4. If the Defendants were successful on their Motion they had indicated that there was no objection to the remainder of the proposed amended summons. In those circumstances the fact that the Plaintiff filed the Summons seeking leave to amend, which I note was done by consent on 27 August 2015, must be held to be at the Plaintiff’s behest.

The same issue was effectively raised by the Plaintiff’s Motion for leave to amend with the Plaintiff being unsuccessful in seeking to file an amended summons containing ground 4 or any variation thereof. In those circumstances the Plaintiff should pay the costs of her own Motion also.

Accordingly, I make the following orders: