Onik New Energy Australia Pty Limited v Henderson

1. [1]

   HER HONOUR: This is an appeal against the decision of a Magistrate who dismissed the plaintiff’s statement of claim for want of prosecution and awarded the defendants the costs of the proceedings.

2. [2]

   By summons filed 5 May 2015, the plaintiff seeks orders, firstly, that leave be granted to appeal from the whole of the decision of his Honour Magistrate Dunleavy dated 10 April 2015; secondly, that the appeal be allowed; thirdly that the judgment be set aside; and fourthly, that the matter be remitted to the Local Court for hearing.

3. [3]

   The plaintiff is Onik Energy Australia Pty Limited (“Onik Energy”). The first defendant is Charlie Henderson. The second defendant is Taylor Athorn. The third defendant is Melissa Hayes. I shall refer to the three defendants collectively as “the defendants” except where I refer to an individual defendant. Onik Energy and the defendants were plaintiff and defendants respectively in the Local Court.

4. [4]

   Onik Energy relied upon three affidavits of its solicitor Raymond Jonathan Abrahams sworn 29 July 2015, 7 October 2015 and 16 November 2015. The defendants relied upon the affidavit of their solicitor Leigh Christopher Anderson sworn 14 September 2015.

The appeal

1. [5]

   Section 40(2) of the Local Court Act 2007 (NSW) relevantly provides that a party who is dissatisfied with an interlocutory judgment of the Local Court may appeal to the Supreme Court, but only by leave of the Supreme Court.

2. [6]

   Section 41 of the Local Court Act provides that this Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or (d) by dismissing the appeal.

Whether leave to appeal should be granted

1. [7]

   The first issue to be determined is whether leave to appeal should be granted on the basis that the decision is an interlocutory one: s 40(2). The defendants oppose the granting of leave to appeal.

2. [8]

   In Be Financial Pty Ltd v Das [2012] NSWCA 164, the Court of Appeal set out the principles to be considered in deciding whether leave to appeal should be granted. At [32], [33] and [35] Basten JA stated:

3. [9]

   Onik Energy submitted that leave to appeal should be granted for the following reasons. Firstly, that the Magistrate clearly erred in his finding that there was a want of prosecution; secondly, that to allow the judgment to stand would be to permit the defendants to take the benefit of it notwithstanding that it was procured in part as a result of the conduct of the defendants’ legal representative in failing to advise the Magistrate that the plaintiff’s legal representative had spoken to him the previous day and informed him that the plaintiff’s lay evidence was ready and would be filed and served by 13 April 2015 being the next business day; thirdly, that the judgment denies the plaintiff sums to which it should be entitled if it succeeds in the substantive matter, namely, its costs expended on the proceedings to date; fourthly, that the judgment renders the plaintiff liable to pay the defendants’ costs of the proceedings to date which is unfair and unjust given that the plaintiff was, at the time the Magistrate made his findings, ready, willing and able to proceed with the matter; and finally, that the plaintiff should only be liable for the defendants’ costs in the event that the plaintiff is unsuccessful in the substantive matter.

4. [10]

   Counsel for the defendants further submitted that it is well established that the requirement for leave to appeal is a “control device” that both promotes the availability and efficiency of justice and places a constraint on the costs of litigation: see Coulter v R (1988) 164 CLR 350 at 359 per Deane and Gaudron JJ. Therefore, it is necessary for Onik Energy to point to some other factor over and above the error in principle which the Magistrate is said to have made apart from an assertion that it has suffered a detriment: see Ashi Pty Limited v Karasco Investments Pty Ltd [2009] NSWSC 780 at [35].

5. [11]

   Counsel for the defendants submitted that the proceedings involves relatively small amounts of money and there is no barrier to Onik Energy commencing further claims against the defendants and that the Magistrate made the orders on that basis (T12.35). The defendants say that the only detriment that Onik Energy has pointed to is the requirement to pay costs and therefore leave to appeal the proceedings should not be granted.

6. [12]

   I take into account the following factors. As Onik Energy can recommence proceedings, the only detriment it suffers is that it has to pay costs thrown away in the Local Court. As well, the appeal does not raise any issue of principle, any question of public importance and the injustice is not reasonably clear. I decline to grant leave to appeal. However, in the event that I am wrong, I have determined the issues raised in the grounds of appeal.

7. [13]

   The approach that I will adopt is to take into account that the Magistrate’s remarks were made in the context of a busy Magistrate’s Court so my focus should be upon the substance of what the Magistrate said and did. Any other approach would impose an intolerable burden on magistrates: see Acuthan v Coates (1986) 6 NSWLR 472; (1986) 24 A Crim R 304 per Kirby P at 479.

Grounds of appeal

1. [14]

   Onik Energy’s grounds of appeal can be summarised as follows:

The proceedings in the Local Court

1. [15]

   On 14 April 2014, Onik Energy filed a statement of claim in the Local Court in the General Division. It pleads that there are two contracts between Onik Energy and the first defendant; one contract between Onik Energy and the second defendant; and one contract between Onik Energy and the third defendant. The contracts are partly written and partly oral. Despite individual contracts involving each defendant, all defendants are named in the one statement of claim. Pursuant to each contract Onik Energy’s predecessor, Sunburst Solar Pty Ltd, installed a 4.5 kilowatt solar electrical system on the properties of the defendants. It is alleged that the defendants have each failed to pay for the systems or allow Onik Energy access to the defendants’ properties to remove the systems. The statement of claim seeks payment of the sum of $38,640 and other alternative relief.

2. [16]

   On or about 21 May 2014, a defence was filed by the first and second defendants. On or about 11 June 2014, a defence was filed and served by the third defendant.

3. [17]

   After the first mention date on 6 August 2014, proceedings were ordered to be moved from the Local Court in Sydney to the Local Court in Wentworth on the motion of the defendants.

4. [18]

   In terms of case management, it appears nothing happened between 21 May 2014 and the first directions hearing on 10 October 2014.

Directions and pre-trial hearings in the Local Court

1. [19]

   On 10 October 2014, these proceedings were adjourned to 5 December 2014. It was noted that there was an application for leave to call expert evidence.

2. [20]

   On 9 January 2015, the following directions were made. Leave was granted to file and serve a reply and for each party to lead expert evidence; the experts were to prepare a joint report; the parties were to exchange all statements on or before 6 March 2015; the matter was listed for review on 10 April 2015; and the matter was listed for hearing on 5 June 2015.

3. [21]

   There was a delay in the finalisation of Onik Energy’s expert evidence because the defendants had not supplied their power bills. These power bills were required by Onik Energy’s expert so he could complete his report. By consent it was agreed that the parties would relist the matter on 6 March 2015 in order to seek an extension of the time for service of the evidence.

First pre-trial hearing – 6 March 2015

1. [22]

   On 6 March 2015, the Magistrate informed the defendants’ solicitor that they should provide their power bills to Onik Energy urgently. The defendants’ solicitor, Mr Anderson, advised the Magistrate that his clients would be providing them within a few days. (Aff, Abrahams, 29/7/2015 at [32]). The Magistrate ordered that the parties exchange evidence by 3 April 2015. (Note that this was Good Friday and the next business day after 3 April 2015 was 7 April 2015.) Mr Abrahams, the solicitor for Onik Energy, sought to vacate the hearing date on the basis that he had a matter listed for a four day hearing in Melbourne on 5 June 2015. (Aff, Abrahams, 1/3/2015 at [3]). The solicitor for the plaintiff consented to the hearing date being vacated. Not surprisingly, in these circumstances the Magistrate refused to vacate the hearing date. The next scheduled pre trial directions hearing remained listed on 10 April 2015. The hearing date of 5 June 2015 was confirmed.

2. [23]

   On 20 March 2015, the defendants provided their power bills to the plaintiff’s solicitors.

3. [24]

   On 9 April 2015, Onik Energy served its expert evidence on the defendants’ solicitor. The expert’s report was served by email. The full report comprised of some 260 pages and there is a dispute between the parties as to whether the attachments to that report were served.

The telephone conversation – 9 April 2015

1. [25]

   It is common ground that on 9 April 2015 (the day before the next pre-trial review hearing), Mr Abrahams had a telephone conversation with Mr Anderson.

2. [26]

   In relation to Onik Energy’s lay evidence, Mr Abrahams’ version of the telephone conversation is as follows. Mr Abrahams says that he advised Mr Anderson:

3. [27]

   Mr Anderson advised Mr Abrahams that “I am arranging to serve our evidence on your agent”. (Aff, Abrahams, 29/7/2015 at [45]).

4. [28]

   Mr Anderson’s version is as follows. He does not recall any words spoken by Mr Abrahams that amounted to a promise to serve witness statements on the following Monday. He does recall that Mr Abrahams said words to the effect “that the delay had been caused by counsel and that counsel said the evidence will be provided in the time that it takes to swear affidavits.” He says that Mr Abrahams did not tell him that he had arranged for the two lay witnesses to attend his office on the following Monday to sign the witness statements. Mr Anderson’s understanding at the conclusion of the telephone conversation was that counsel had not finalised the witness statements and that Mr Abrahams would get them to Mr Anderson as soon as he could in the following week.

5. [29]

   Mr Anderson does not agree that he said that he was arranging to serve the defendants’ evidence on Mr Abrahams’ agent because he had actually served evidence by way of a witness statement with attachments and an expert report on Mr Abrahams’ agent, Hugh Middleton of Martin Irwin & Richards, the previous day (8 April 2015). It is Mr Anderson’s recollection that he did not say “Mr Dunlevy won’t be happy about any delay in serving your evidence.” Instead he said words to effect that “the Magistrate will go berserk.” (Aff, Anderson, 14/9/2015 at [13]).

6. [30]

   Mr Anderson stated that during the telephone conversation with Mr Abrahams, Mr Anderson did not form an opinion as to what he would do at the directions hearing in light of Onik Energy’s failure to serve evidence. He cannot recall when he decided that he would make submissions at the directions hearing that Onik Energy’s statement of claim should be struck out. (Aff, Anderson, 14/9/2015 at [15]).

7. [31]

   On 9 April 2015, Mr Abrahams wrote to Mr Anderson as follows:

8. [32]

   Mr Anderson says that as a result of receipt of Mr Abrahams’ letter of 9 April 2015 stating that counsel was still reviewing the lay witnesses’ affidavits, he remained of the view that there was no guarantee that he would receive the evidence by the following Monday. (Aff, Anderson, 14/9/2015 at [14]).

9. [33]

   On 9 April 2015, Mr Abrahams emailed his agent, Mr Middleton, as follows:

Pre trial directions – 10 April 2015

1. [34]

   On 10 April 2015, Mr Anderson had a conversation with Mr Middleton at the Wentworth Local Court at about 9.30 am or 10.00 am. During that conversation he stated to Mr Middleton that he would be making submissions that the statement of claim should be struck out. The matter was called on a few hours later just prior to lunch. Mr Anderson’s evidence is that, given Onik Energy was represented at the directions hearing by Mr Middleton, he did not consider that it was his obligation to inform the Court as to his understanding of the state of readiness of Onik Energy’s evidence or when its evidence was going to be filed. (Aff, Anderson, 14/9/2015 at [16] and [17]).

2. [35]

   On 10 April 2015, when the matter came before the Magistrate Mr Middleton, who appeared on behalf of Onik Energy, made an application to vacate the hearing as Onik Energy’s solicitor, Mr Abrahams, who had had carriage of the matter for a considerable period of time, had a trial listed for hearing in the County Court of Victoria on 5 June 2015. Mr Anderson, solicitor appearing on behalf of the defendants, made an oral application that Onik Energy’s proceedings be struck out.

The rule and practice note

1. [36]

   Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rule 12.9 relevantly reads:

2. [37]

   The Case Management of Civil Proceedings in the Local Court Practice Note Civ 1 relevantly reads (at [7]):

The Magistrate’s judgment

1. [38]

   On 10 April 2015, at the outset of the directions hearing, the Magistrate stated:

2. [39]

   Mr Middleton indicated that it was. The following exchange then took place between the Magistrate and Mr Anderson:

3. [40]

   When the hearing resumed after lunch, the solicitor for the defendants made submissions as to why these proceedings should be struck out. In summary, his submissions were as follows. Firstly, as a result of the three separate proceedings being run together, the amount claimed is for $38,000 but is more likely to be in the range of $13,000 to $15,000. Secondly, there does not seem to be a dispute that a term of the contract was that the defendants were to receive from Onik Energy a solar feed in tariff of 30 cents per kilowatt (this was admitted in the reply that had been filed). Thirdly, the plaintiff in the proceedings is not the same company as the one the defendants contracted with, being Sunburst Solar Pty Ltd. Fourthly, the defendants have filed all their evidence and have expended money on an expert, solicitors’ fees and an application for change of venue from Wentworth to Sydney. Finally, he further submitted that the plaintiff had not served the defendants with any lay witness statements, and although they had received an expert report, it did not contain the annexures which the defendants’ solicitor was told added up to some 260 pages. He informed the Court that the email from the plaintiff’s solicitor did contain a link to another site of some description but that did not comply with the service rules.

4. [41]

   Mr Middleton explained on behalf of the plaintiff that his instructing solicitor was observing a holyday and was not available. He had spoken to a staff member who informed him that there were witness statements which had been sent for checking by counsel. He could not say if the lay witness statements had been waiting on the preparation of the expert’s report and referred to the delay in the supply of the powers bills. He urged the Magistrate not to make orders prejudicial to the plaintiff’s case (T9; T10). I might add that some parts of the submissions are untranscribable. I have done my best to interpret them.

5. [42]

   After hearing these submissions the Magistrate, in his ex tempore judgment, stated:

6. [43]

   When asking Mr Middleton if there was any reason why the defendants should not have their costs his Honour stated, “Although in fairness to Mr Anderson I did foreshadow potentially dismissing the statement of claim on the last occasion.” (T14.7-8). The Magistrate awarded costs against the plaintiff on an ordinary basis.

Consideration

1. [44]

   I will now deal with each ground of appeal in turn.

(a) Was the plaintiff afforded procedural fairness? – appeal ground (a)

1. [45]

   In relation to procedural fairness, the starting point is Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-585, where Mason J made the well-known statements that the law had developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is the notion of a flexible obligation to adopt fair procedures that are appropriate and adapted to the circumstances of the particular case. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?

2. [46]

   In Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, the High Court discussed the manner in which procedural fairness cases are approached by the courts. Gleeson CJ (at [37]) stated:

3. [47]

   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, now referred to as procedural fairness. His Honour, in noting the applicability of the requirements of natural justice to the Local Court, stated:

4. [48]

   Counsel for Onik Energy submitted that the Magistrate erred in entertaining a strike out application by the defendants without notice to Onik Energy and in so doing denied Onik Energy procedural fairness.

5. [49]

   Counsel for Onik Energy referred to Kapoor v State Transit Authority of NSW [2010] NSWCA 143. The brief facts in Kapoor are that when Mr Kapoor, who was not legally represented, did not appear at court on 31 January 2008, counsel for the Authority made an oral application to the judge, without notice to Mr Kapoor, for the proceedings to be dismissed for want of prosecution. The judge entertained the application and, after hearing brief submissions, reserved his decision. On 16 April 2008, the Authority then filed a notice of motion to dismiss the proceedings for want of prosecution supported by a large affidavit, returnable on 21 April 2008.

6. [50]

   The Court of Appeal (per Handley JA, with whom Allsop P and McColl JA agreed) held that, by entertaining the oral application for want of prosecution made without notice to Mr Kapoor, the appellant was denied procedural fairness on 31 January 2008. Although this was formally cured when the Authority served its notice of motion and supporting affidavit of 16 April 2008, it was not cured in substance because the time between service and the mention date was unreasonably short. This deprived Mr Kapoor of a reasonable opportunity to review the affidavit “to ensure that nothing of relevance had been omitted, to identify any errors, and to assemble any material that he wished to put before the Court in reply”, to which he was entitled. The appeal was allowed. The decision of the judge dismissing the action for want of prosecution was set aside.

7. [51]

   Allsop P agreed with the reasons of Handley JA and added the following comments:

8. [52]

   On 10 April 2015, between 9.30 am and 10 am in the Local Court, the solicitor for the defendants informed the agent appearing for the solicitor for Onik Energy that he would be making submissions that the statement of claim should be struck out. The pre trial hearing took place after the luncheon adjournment.

9. [53]

   Further, the Magistrate had on the last occasion (6 March 2015) foreshadowed potentially dismissing the statement of claim. When the matter came before the Magistrate on 10 April 2015 both parties were legally represented. The agent appearing on behalf of the solicitor for the plaintiff had been provided with written instructions by the plaintiff’s solicitor that the plaintiff’s lay evidence, namely the affidavits of Mr Graham and Ms Berg, were being reviewed by counsel and their evidence would be served by close of business on Monday 13 April 2015. He was also instructed that the expert’s report had been served, although I accept that there was an unexpected issue before the Magistrate as to whether the annexures were properly served. It appears that the agent did not properly convey his instructions to the Magistrate and in particular that the witnesses’ affidavits were to be served on 13 April 2015 so that, if the hearing date was vacated, the matter would be ready for hearing well before 5 June 2015. The plaintiff’s agent, although put on notice earlier that day that the defendants’ solicitor would be making submission to have the proceedings struck out, did not request an adjournment so that the plaintiff’s solicitor could be present.

10. [54]

    The Magistrate gave each party the opportunity to adequately present its case, observed ss 56 to 60 of the Civil Procedure Act 2005 (NSW), referred to the relevant UCPR rule, and took into account that, should he dismiss these proceedings, they could be recommenced at a time when the plaintiff had properly prepared its case for trial. The Magistrate came to his decision with the sense of responsibility that is the necessary accompaniment of the duty to do justice and acted judicially.

11. [55]

    In my view, in these circumstances, the plaintiff was afforded procedural fairness.

(b) Want of prosecution – appeal ground (b)

1. [56]

   Counsel for Onik Energy submitted that there was no evidentiary basis or an insufficient evidentiary basis before the Magistrate to sustain a finding that there was a want of prosecution by Onik Energy.

2. [57]

   Onik Energy also says that UCPR Part 50.16(1) states that “[i]f the decision under appeal has been given after a hearing, the appeal is to be by way of rehearing”. “Hearing” includes both trial and interlocutory hearing: see the definition in section 3 of the Civil Procedure Act. Further, UCPR 50.16(1) uses the term “hearing” in contradistinction to the term “hearing on the merits” which is used in UCPR 50.16(4). While the precise extent of the right to appeal depends on the wording of the statute conferring the right to appeal (see McCullin v Crawford; Ex parte Crawford (1921) 29 CLR 186 at 193; Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297), there is nothing within s 40 of the Local Government Act 2007 which limits the appeal Court’s receipt of further evidence for the purpose of determining the appeal. UCPR 50.16(3) provides that the higher court may receive further evidence. This Court on this appeal has, by consent, received evidence that was not before the Magistrate. It shows that the agent was advised that the lay witnesses’ affidavits would be exchanged by Monday 13 April 2015.

3. [58]

   The solicitor for the defendants received a letter from Mr Abrahams in similar terms on 9 April 2015. Mr Anderson says that as a result of receiving Mr Abrahams’ letter of 9 April 2015 stating that counsel was still reviewing the lay witnesses’ affidavits he remained of the view that there was no guarantee that he would receive the evidence by the following Monday.

4. [59]

   Further, or alternatively, Onik Energy submitted that on the basis of the additional evidence adduced by the plaintiff in this appeal it is clear that as at the date of the original determination there was no want of prosecution on the part of the plaintiff and that the finding of the Magistrate was therefore wrong.

5. [60]

   While this Court has this additional information, the difficulty is that the Magistrate was never informed that the plaintiff would serve the evidence of its lay witnesses by 13 April 2015. There was no proposal put forward by the plaintiff’s agent as to when they would comply with directions concerning all the lay evidence, if at all. In my view the evidence before the Magistrate supported the making of an order dismissing the proceedings pursuant to UCPR 12.9 and the Practice Note. This ground of appeal fails.

(c) Was the expert evidence ready? – appeal ground (c)

1. [61]

   Counsel for Onik Energy submitted that the Magistrate erred in finding that Onik Energy’s expert evidence was not ready. At the hearing there was a factual dispute between the parties as to whether the annexures comprising of some 260 pages were served with the expert’s report. The agent appearing for the plaintiff’s solicitor was unable to assist the Court on this issue. It was clear that the expert’s report had not been filed.

2. [62]

   So far as the expert’s report is concerned, the Magistrate stated that on the face of it he would have to accept that the plaintiff had raised a reasonable excuse for their expert report not being prepared, because there had been some obstacles in the form of outstanding particulars and invoices, that would be required by the expert in the preparation of his report. He also stated that the issue had been remedied as a draft expert report “if I can put it that way” had been served. The Magistrate continued that the expert report had not been finalised and had not been filed in the Court or properly served upon the solicitor for the defendants. (T11.17-24). There was no dispute that the expert report was not filed. However, there was a factual dispute as to whether the annexures comprising of 260 pages were served on the defendant’s solicitor. The plaintiff’s agent was not able to assist. Hence, the Magistrate was entitled to come to the conclusion he did. This ground of appeal fails.

(d) Onik Energy’s failure to file and serve lay evidence – appeal ground (d)

1. [63]

   Counsel for Onik Energy submitted that the finding that there was a want of prosecution by reason of Onik Energy’s failure to file and serve its lay evidence cannot be sustained as the finding was procured due to the defendants’ legal representative misleading the Court. This is a very serious allegation. It is not made out.

2. [64]

   In a letter dated 9 April 2015, the plaintiff’s solicitor, Mr Abrahams, wrote to Mr Anderson stating that:

3. [65]

   Mr Anderson’s evidence is that he formed the opinion that, by stating that counsel was still reviewing the lay witness affidavits, Mr Abrahams remained of the view that there was no guarantee that Mr Anderson would receive the evidence by the following Monday. In Mr Anderson’s opinion, given that Onik Energy was represented at the directions hearing by Mr Middleton, Mr Anderson did not consider that it was his obligation to inform the Court as to his understanding of the state of readiness of Onik Energy’s evidence or when its evidence was going to be filed. Had Mr Middleton not appeared, the approach that Mr Anderson would have taken would have been different. He would have had an obligation to inform the Court what he had been told by Mr Abrahams about lay witness statements and expert’s report.

4. [66]

   Mr Anderson stated that during the telephone conversation with Mr Abrahams, Mr Anderson did not form an opinion as to what he would do at the directions hearing in light of Onik Energy’s failure to serve evidence. Mr Anderson cannot recall when he decided that he would make submissions at the directions hearing that Onik Energy’s statement of claim should be struck out.

5. [67]

   Mr Anderson informed Mr Middleton some hours before the hearing came on that he would be applying to have the proceedings struck out. I accept that Mr Anderson was aware that Mr Abrahams would be unavailable on 10 April 2015. Mr Anderson should have informed Mr Abrahams that he was considering making a submission to the Magistrate that the plaintiff’s proceedings be struck out but had not made up his mind as a courtesy.

(e) Application to vacate hearing date – appeal ground (e)

1. [68]

   Counsel for Onik Energy submitted that the Magistrate erred in finding that an application to vacate the hearing date had been made by Onik Energy as it was not ready to proceed. As previously stated, the Magistrate was never informed as to when the lay statements could be served. While there was still time to serve these statements and sort out the expert report and file it, there was a paucity of information provided to the Magistrate on this topic. As the Magistrate acceded to the defendant’s request to dismiss the statement of claim there was no utility in retaining the hearing date. There was no error of law. This ground of appeal fails.

Other matters

1. [69]

   Finally, counsel for the plaintiff raised an issue that the Magistrate had regard to irrelevant considerations, namely, the joining of three defendants in the one statement of claim. This was a relevant factor to be taken into account in deciding to dismiss the plaintiff’s statement of claim and determining whether Onik Energy would be ready for the hearing on 5 June 2016. Further, counsel submitted that the Magistrate failed to have regard to ss 57, 58 and 61 of the Civil Procedure Act and referred to Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230. The Magistrate did specifically refer to s 56 of the Civil Procedure Act. A fair reading of the judgment reveals that the Magistrate also had regard to the matters raised in ss 57, 58 and 61 of the Civil Procedure Act.

2. [70]

   The result is that the appeal is dismissed. The judgment and orders of his Honour Magistrate Dunleavy dated 10 April 2015 are affirmed.

Costs

1. [71]

   Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants’ costs on an ordinary basis as agreed or assessed.