Elias v Naomi

By amended summons filed on 17 May 2018, the plaintiff, Tony Elias trading as Joe Elias and Sons, seeks relief against Nafisa Naomi in respect of an appeal from a judgment entered in favour of Ms Naomi in the Local Court by Virgo LCM on 14 December 2017 on the cross-claim brought against Mr Elias. Mr Elias was the plaintiff/cross-defendant in the Court below and Ms Naomi was the defendant/cross-claimant in the Court below.

This Court has jurisdiction with respect to judgments and orders of the Local Court by reason of ss 39 and 40 of the Local Court Act 1970 (NSW). Section 39 provides for a right of appeal to this Court “only on a question of law”. Section 40 provides for a right of appeal, subject to leave, on a question of mixed law and fact or an interlocutory judgment or order.

Of the nine grounds of appeal, only the following four are pressed:

Mr Marshall SC, who appeared on behalf of Mr Elias, accepted, as is plain from the terms of the ground, that ground 4 gave rise only to a question of fact. Accordingly, it is not necessary to address this ground as this Court’s jurisdiction under ss 39 and 40 of the Local Court Act does not extend to reviewing such questions.

Before turning to the grounds, I propose to set out the background to the proceedings and summarise the reasons of the Court below.

Mr Elias agreed to perform building work for Ms Naomi at her home in Mosman for the sum of $198,000 (including GST). On 14 December 2015 Ms Naomi, who had already made payments totalling $59,237, told Mr Elias to stop working on the site as she was dissatisfied with his work, which she considered to be defective.

By statement of claim filed on 6 June 2016, Mr Elias claimed an amount in the order of $100,000 for invoices alleged to be unpaid under an agreement with Ms Naomi to perform building work. In the alternative, Mr Elias claimed “as on a quantum meruit, the Balance Due.”

In her defence filed on 25 August 2016, Ms Naomi denied that she was liable to pay the plaintiff’s claim and alleged that, due to Mr Elias’s faulty work, he had repudiated the contract, which entitled her to terminate it. She also alleged that the agreement was covered by the Home Building Act 1989 (NSW) and that, as the agreement did not satisfy the requirements of s 7 of the Act, Mr Elias was prohibited from enforcing the contract: s 10(1) of the Home Building Act. She also alleged in her defence that s 92(2) of the Home Building Act precluded Mr Elias from demanding or receiving payment under the contract unless he had a contract of insurance that complied with the Act. She alleged that no claim for quantum meruit could be made as there was a contract.

Ms Naomi filed a cross-claim dated 29 August 2016 in which she claimed the costs she had incurred to rectify the work which was alleged to be defective ($49,936), costs incurred to complete the original scope of work ($134,059.49), plus the amounts already paid to Mr Elias ($59,237), less the original contract price ($198,000), leaving a balance said to be due of $45,233.39.

The proceedings were heard by Virgo LCM on 27 April 2017, 21 July 2017 and 12 October 2017. Her Honour gave reasons for judgment on 7 December 2017 and made orders on 14 December 2017. Because of the grounds pressed it is necessary to set out in some detail what occurred prior to and in the course of the hearing.

On 28 March 2017 Mr Elias served his evidence, which comprised his own statement dated 28 March 2017 and a statement of Colin Bradshaw, one of his employees, which was also dated 28 March 2017. When the matter came before the Local Court for directions on that day, the Court confirmed the hearing date of 27 April 2018 and directed Ms Naomi to serve her evidence by 20 April 2017.

Ms Naomi filed a notice of motion on 31 March 2017 for the matter to be transferred to the NSW Civil and Administrative Tribunal on the basis that it involved home building work which was covered by the Home Building Act. The motion was heard on 11 April 2017 and refused.

By the hearing day the parties had served the following statements. Mr Elias had served the two statements referred to above. Ms Naomi had served the following four statements: her own statement dated 22 December 2016; a statement of Daniel Petrella, a licensed waterproofer, dated 20 April 2017; a statement of Sam Vitali, a brickworker, dated 20 April 2017; and a statement of Russell Napier, civil engineer, dated 19 April 2017.

On the first day, Mr Chapman, who appeared for Mr Elias, objected to three of the four statements relied on by the plaintiff on the basis that there had been no directions made by the court concerning expert evidence. Mr Edington, who appeared for Ms Naomi, submitted that as Mr Elias’s evidence (which he submitted contained opinion evidence) had only just been received, there was no time to seek directions for expert evidence. Mr Chapman pressed his application for a preliminary ruling on the evidence sought to be adduced by Ms Naomi, which he contended was expert evidence.

The magistrate ruled that Ms Naomi be permitted to rely on the four statements she had served. Mr Chapman applied for a voir dire on the expert evidence for the purpose of challenging the expertise of the experts relied upon by Ms Naomi. Her Honour rejected the application for a voir dire. This prompted Mr Chapman to apply for an adjournment of the matter in order to prepare his cross-examination of Ms Naomi’s witnesses. Her Honour indicated that it would be more appropriate to commence the hearing. Mr Chapman then proceeded to open the case on behalf of Mr Elias.

There followed a discussion of the availability of Mr Napier, a civil engineer who had 20 years’ experience in building and construction, as he was in the Caribbean. The possibility that he would need to give evidence by Audio-Visual Link was canvassed. Mr Chapman then notified his objections to Mr Napier’s expertise.

Shortly before the luncheon adjournment, the Court attempted a telephone link with Mr Napier. A recorded message played in response when the connection was made.

Following the luncheon adjournment, her Honour expressed her concerns about the expert evidence which had not been the subject of specific direction. Her Honour indicated that, as the matter would not finish that day because of the time taken with preliminary matters, she would adjourn it for a date to be fixed. After giving reasons, her Honour said:

After the orders were made, Mr Chapman said:

Her Honour responded:

Having heard her Honour’s response, Mr Chapman did not make any further submissions on the question of exchange of expert reports. The discussion then turned to other matters. The court ultimately adjourned the proceedings to 21 July 2018 at 9.30am and noted that they were part-heard before her Honour.

In early July 2017 Ms Naomi served an expert report of Andrew Steward dated 30 June 2017, concerning the value of the works performed, the value of the remaining works and the cost of rectifying defects (the Steward report). It was common ground that the report was served outside the time provided for in the directions made on 27 April 2017. The matter was not re-listed between the first and second hearing days.

At the commencement of the second day, 21 July 2017, Mr Chapman, who continued to appear on behalf of Mr Elias, sought an adjournment to permit Mr Elias to adduce expert evidence to respond to the report of Mr Steward. Mr Chapman told her Honour that his solicitors proposed briefing an expert who would not be available until 31 July 2017.

Mr Edington opposed the adjournment on the basis that Ms Naomi was ready for the hearing and all her witnesses were available to give evidence and be cross-examined. Although he accepted that the Steward report was not served in time, he told the magistrate that Ms Naomi’s solicitors had notified Mr Elias’ solicitors that the report was coming by letter dated 9 June 2018. Mr Elias’ solicitors had not sought to relist the matter; nor had they instructed an expert before 21 July 2017. All that they had done was identify an (at that stage unnamed) expert who would not be available until 31 July 2017. Mr Edington also submitted that there was no prejudice to Mr Elias because he, as a builder, had the necessary expertise to respond to the Steward report.

After hearing from the parties, her Honour gave reasons as follows (tr. 33.44-35.6):

After her Honour had given reasons for refusing the adjournment, Mr Chapman alleged that her Honour had refused the adjournment on the basis that Mr Elias was entirely at fault, to which her Honour responded that she regarded both parties as being at fault because her orders (made on 27 April 2017) were for the exchange of expert reports. Mr Chapman responded that it was not a “workable solution”, to which her Honour asked why he had not addressed that matter on 27 April 2017 (tr. 36). Mr Chapman responded that he had. Had the transcript of the proceedings on 27 April 2017 been available to the parties or to the court on 21 July 2017, it would have confirmed her Honour’s recollection that Mr Chapman had not made that submission.

Mr Chapman continued to agitate the asserted need for Mr Elias to adduce expert evidence (including at tr. 38). Mr Edington expressed his concern that unless Mr Elias were called, and Ms Naomi’s witnesses permitted to give evidence, the matter would have to be adjourned again for a third day.

Mr Elias was then called and cross-examined. Mr Bradshaw’s affidavit was read. He was not cross-examined. Mr Elias’ case closed. Mr Edington then called the defendant’s first witness, Mr Vitaliti, who was called at that time because he was not going to be available on a future occasion. His evidence in chief was in the form of an affidavit. He was cross-examined and re-examined. Mr Edington then called Mr Petrella. After Mr Petrella’s evidence concluded, Mr Edington announced that he proposed to call Mr Steward.

Mr Chapman objected to the Steward report in whole and any evidence to be given by Mr Steward (tr. 131). He raised Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 31.28 and submitted that Ms Naomi ought not be permitted to adduce expert evidence which was filed in default of the order. Her Honour confirmed that leave to rely on the Steward report had been given that morning: tr. 134.20.

As the matter could not conclude on 21 July 2017, there was a discussion about a further date. Her Honour adjourned the matter part-heard to 12 October 2017 (tr. 136). Mr Chapman sought a direction that Mr Elias be permitted to rely on an expert’s report. Her Honour declined to give such a direction. Mr Edington submitted that Mr Elias ought not be permitted to adduce expert evidence because he had conducted the case on the basis that he needed only to cross-examine the plaintiff about particular matters (tr. 137). Mr Chapman submitted that, given the matter had to go over again part-heard, there was no reason not to allow his client to adduce expert evidence. Her Honour agreed with Mr Edington’s submission that no such direction ought be made. At the conclusion of the day’s hearing, her Honour said:

When the hearing resumed on 12 October 2017, Mr Marshall SC appeared on behalf of Mr Elias. He indicated that he had just come into the matter. He announced that Mr Elias had served an expert report and that its author had been required for cross-examination. He continued:

Her Honour inquired why no such application had been made prior to 12 October 2018. No explanation was given by Mr Marshall. Mr Edington informed the court that the report had been served under cover of letter dated 29 September 2018. He submitted that he had conducted Ms Naomi’s case on the basis that the evidence in Mr Elias’s case would be confined to the evidence of Mr Elias and Mr Bradshaw. When her Honour asked why the Madden report had not been served until 29 September 2017, Mr Marshall accepted that he had no explanation. Her Honour said, at tr. 143.5-.14:

Mr Edington called Ms Naomi, who was cross-examined. He then sought to file and serve a supplementary report prepared by Mr Steward (tr. 179). Mr Marshall objected to the supplementary report but, when he had read that it merely made minor corrections to the Steward report, he withdrew his objection and the two reports (the original and supplementary reports) were admitted into evidence. During Mr Marshall’s cross-examination of Mr Steward, Mr Marshall handed Mr Steward a copy of the expert report obtained by Mr Elias from Mr Madden (the Madden report). Mr Edington objected. Her Honour upheld the objection. It was accepted by Mr Marshall before me that he understood from her Honour’s ruling that he was still permitted to put the substance of the Madden report to Mr Steward, although not the actual report.

Following the closing of Ms Naomi’s case, Mr Marshall tendered the Madden report, which was rejected. Her Honour made orders for written submissions and listed the matter for judgment on 7 December 2018.

On 7 December 2017 her Honour delivered reasons for decision. Her Honour found that the Home Building Act applied, that the agreement did not comply with the Act and that Mr Elias did not have the requisite insurance. Her Honour rejected Mr Elias’ claims in contract and quantum meruit. Her Honour also found that Ms Naomi was entitled to exclude Mr Elias from her property. Her Honour found that Ms Naomi was entitled to succeed on her cross-claim for the cost of rectifying the defects for which Mr Elias was responsible and noted that Ms Naomi assessed them to be $48,037 whereas Mr Steward assessed them to be $44,037. The magistrate accepted the lower amount on the basis that Mr Steward was an expert. At the conclusion of the delivery of reasons, her Honour heard the parties on costs and stood the matter over to 14 December 2018 for final orders to be made.

On 14 December 2017 her Honour entered judgment in favour of Ms Naomi on the cross-claim and made a costs order in favour of Ms Naomi, including indemnity costs for part of the period.

Before turning to the grounds, it is necessary to identify the ambiguity in all of the grounds that are pressed, which are extracted above. The heading above grounds 1-4 implies that Mr Elias’ complaint is that each of the four grounds amounted to a denial of procedural fairness. However, Mr Marshall purported to range beyond a denial of procedural fairness and identified alleged errors in the course taken by the magistrate in other respects. As Mr Kaplan, who appeared for Ms Naomi, addressed each ground on both bases, I will address the arguments in my reasons.

I propose to deal with the grounds in turn.

Mr Marshall submitted that the magistrate was in error in directing that experts’ reports be exchanged, rather than directing that one party serve reports, which would then be responded to by the other party. He submitted that the direction denied procedural fairness to Mr Elias. He contended that, if leave be required, the question warranted leave because directions for expert evidence in the Local Court were a matter of public importance.

The Local Court’s power to make directions regarding experts’ reports derives from its power to give directions as to practice and procedure generally (s 61 of the Civil Procedure Act 2005 (NSW)) and directions as to the conduct of a hearing (s 62 of the Civil Procedure Act). UCPR, r 31.20 confers power on the court to give directions in relation to the use of expert evidence in proceedings. The directions that may be given include directions as to the time for service of experts’ reports: UCPR, r 31.20(2)(a).

UCPR, r 31.28 relevantly provides:

Local Court of New South Wales, Practice Note Civ 1, 23 March 2011 provides for expert evidence in Part E and provides, in cl 29.1 that no expert evidence can be adduced without leave of the court.

It is plain from the provisions set out above that the Court below had power to direct the parties to exchange expert reports.

As set out above, her Honour heard from the parties both before and after making the order for exchange of experts’ reports. Although, as set out above, Mr Chapman raised an initial objection to reports being exchanged, he did not say anything further when her Honour responded by explaining her reasons for making the directions. Thus, the plaintiff had an opportunity to be heard and was heard, and did not take any further opportunity to be heard against what her Honour had directed before the matter was adjourned. Procedural fairness requires that the party against whom a decision is made be given an opportunity to be heard before the decision is made. In these circumstances, there is no basis for an allegation that there was a denial of procedural fairness in making the direction.

The only other basis on which I understood Mr Marshall to suggest that the order ought not have been made was that he contended that, as Ms Naomi was making the claim pursuant to her cross-claim, she was obliged to go first and serve her expert evidence before the plaintiff ought be required to respond. There are several difficulties with this proposition.

The first is that the plaintiff had brought an alternative claim on the basis of quantum meruit and could reasonably have been expected to support that claim, in respect of which he bore the onus, with expert evidence. The second is that the terms of her Honour’s directions made plain that her Honour urged, and expected, the parties and their experts to confer before the date on which the experts’ reports were to be exchanged to confine such evidence to the real matters in issue. The third is that this point was not made to the magistrate on 27 April 2018. Generally speaking, parties are bound by the conduct of their counsel, including the forensic decisions taken by them in the course of a trial: R v Birks (1990) 19 NSWLR 677 at 684-685 (Gleeson CJ, McInerney J agreeing).

There is a further impediment to a grant of relief in respect of ground 1. The direction was interlocutory and cannot be challenged in an appeal against the final judgment because it did not affect the final result: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [6] (Gaudron, McHugh and Hayne JJ). That it did not affect the final result can be inferred from the circumstance that the Steward report was allowed to be tendered although it was not served in accordance with the timetable. It is a matter of pure speculation whether, had the plaintiff served an expert report a week after the Steward report was served, it would have been rejected or admitted.

I reject the submission that the question whether it is appropriate in a particular case to order exchange of expert reports is a question of public importance. What the “dictates of justice” (s 58 of the Civil Procedure Act) require in any given case is a matter which will vary with the circumstances of the particular case and is pre-eminently a matter for the judicial officer making the directions. Appellate courts are, rightly, reluctant to interfere with such judgments: Hession v Century 21 South Pacific Ltd (in liq) (1992) 28 NSWLR 120 at 122 (Meagher JA, Kirby and Cripps JA agreeing).

As there is no merit in the ground, it is not necessary to determine the nice question whether the direction to exchange experts’ reports involved the exercise of a discretion in the House v The King sense and, if so, whether it raised a question of law in an interlocutory decision or mixed fact and law, such as would attract this Court’s jurisdiction under s 40 of the Local Court Act if leave were granted or whether it was merely a matter of opinion, which would not attract this Court’s jurisdiction under s 40.

Ground 1 raises no basis for this Court’s intervention. It is questionable whether this Court would have jurisdiction to grant relief on the basis of ground 1 even if it raised a question of law or mixed law and fact. The jurisdiction to review, on appeal, interlocutory judgments, orders and evidentiary rulings under s 101(2)(e) of the Supreme Court Act 1970 (NSW) appears to be considerably wider than that conferred on this Court by s 40 of the Local Court Act: see Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [81] (McColl JA, Spigelman CJ and Handley JA agreeing); CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [89] (Basten JA).

As set out above, the plaintiff applied for an adjournment of the proceedings on the adjourned day itself (which was the second day of hearing), having failed to re-list the matter after the Steward report had been served late. The plaintiff accepted that he had no explanation for failing to re-list it. As at 21 July 2017, Mr Elias’s solicitor had not even sent a letter of instructions to Mr Madden. Indeed, the Madden report recorded that Mr Madden first received a letter of instructions four weeks later on 18 August 2017. Of the 14 items with which Mr Madden was briefed, 13 were available to Mr Elias’ solicitors from 20 April 2017 and the remaining document, the Steward report, was available by 7 July 2017. As Mr Elias’s solicitors had not yet briefed Mr Madden, Mr Chapman was not in a position to say for how long he sought the adjournment.

As the narrative and transcripts set out above indicate, Mr Chapman continued throughout the whole of 21 July 2017 to seek an adjournment. The time taken by his submissions to that effect had the result that the proceedings could not be completed on 21 July 2017 and were required to be adjourned to 12 October 2018.

As to the question of procedural fairness, it is plain that the magistrate gave Mr Chapman ample opportunity to be heard before refusing the adjournment. Her Honour continued to hear him as he sought further adjournments. There was no denial of procedural fairness.

Ground 2a also suffers from the difficulty referred to above (by reference to Gerlach v Clifton Bricks Pty Ltd) that it could not be said that the refusal of the adjournment affected the final result.

Mr Marshall has not raised any matter which would indicate that the magistrate’s discretion to grant an adjournment miscarried. He has not identified any matter which the magistrate failed to take into account or any matter which her Honour took into account which was irrelevant.

The same observations are as made with respect to ground 1 concerning Gerlach v Clifton Bricks Pty Ltd and discretionary judgments also apply to ground 2a.

The narrative for this sub-ground is similar to that for ground 2a. At the time Mr Chapman applied for an adjournment, the plaintiff’s solicitors had not instructed Mr Madden. The factors relevant to her Honour’s decision whether to adjourn the proceedings were canvassed at length in debate between Bar and Bench and were reflected in her Honour’s reasons. Mr Chapman had ample opportunity to put his client’s position. I am not persuaded that the plaintiff has established any denial of procedural fairness. On the contrary, the transcript reveals the extent to which her Honour heard from Mr Chapman and explained her decision to refuse the adjournment. In effect, the plaintiff has complained about the result of her Honour’s decision not to adjourn the proceedings rather than the process by which her Honour made the decision to refuse the adjournment.

The principle in Gerlach v Clifton Bricks Pty Ltd also applies to this ground in that, at least until the Madden report was rejected on 12 October 2018, it could not be said that the final result was affected.

The magistrate’s decision to reject the Madden report was an evidentiary ruling. After hearing from Mr Marshall and Mr Edington, her Honour had regard to the costs of the proceedings; the prejudice to the defendant if the Madden report were allowed; the court’s time and resources; and the failure on the part of the plaintiff’s solicitors to explain why the Madden report had not been served until 29 September 2017. Her Honour’s ruling was consistent with UCPR, r 31.30(2), which applies in the District and Local Courts and which provides that an expert’s report is admissible either with consent or if it is served in accordance with the orders of the Court, as well as Pt 6 of the Civil Procedure Act. Although it would have been open to her Honour to admit the report, her Honour was entitled to reject the tender, after having heard the parties and considered the matters referred to above. The magistrate heard Mr Marshall’s submissions before rejecting the report. There was no denial of procedural fairness.

Because of the ambiguity in the wording of ground 3, it is also necessary to consider whether there was any error in the magistrate’s decision to reject the report which would be amenable to review by this Court.

The question whether to allow a report, which is served late, to be relied upon, is pre-eminently a matter for the judicial officer hearing the matter. That rejection of the report might substantially prejudice the tendering party, while a factor, is not determinative. Although referring to other cases for procedural rulings is not necessarily useful given the different balancing exercise undertaken in each case, I accept Mr Kaplan’s submission that guidance can be obtained from the decision of the Full Court in Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379. The Full Court dismissed an application for leave to appeal from a decision of Lockhart J who had refused leave to the applicant to adduce further affidavit evidence. The consequence of his Honour’s ruling, which was appreciated by Lockhart J when he made the ruling, was that the applicant would almost certainly fail at trial. His Honour weighed the various factors, including the prejudice to the respective parties and the proper use of the court’s resources. The Full Court (Gummow J, at 387, and French J, at 391) emphasised the need for appellate courts to exercise restraint in disturbing interlocutory decisions and rulings of trial judges and not to disturb such decisions and rulings merely because the judges on appeal might have made a different decision or ruling.

Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd was cited with approval by the High Court in Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. It is consistent with Pt 6 of the Civil Procedure Act which has as its “overriding purpose” “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

It is important to emphasise that the review by the Full Federal Court of the ruling by Lockhart J was undertaken in the context of an application for leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), which is in similar terms to s 101(2)(e) of the Supreme Court Act (referred to above) and confers a wider jurisdiction than that conferred by s 40 of the Local Court Act.

I discern no error, whether of law or mixed fact and law, in her Honour’s decision to reject the Madden report.

Mr Kaplan submitted that admission of the Madden report would not have made a difference to the case in any event. Mr Madden’s opinion was that the value of rectifying the defects could not be estimated as they had already been rectified by the time of his (and Mr Steward’s) inspection. Her Honour assessed the damages on the cross-claim in accordance with Mr Steward’s figure, rather than the actual cost incurred by Ms Naomi. If Mr Madden’s report had been allowed, and his opinion accepted, it was possible that her Honour would simply have allowed Ms Naomi’s figure, which was higher than the amount of the judgment entered on the cross-claim (and therefore more detrimental to Mr Elias). It is not necessary to decide this question as no error has been shown.

Grounds 1 and 2 were not amenable to leave to appeal because of the principles in Gerlach v Clifton Bricks Pty Ltd. I would refuse leave to appeal in respect of ground 3 because there was no merit in the ground and it was, at best, questionable whether the Madden report would have made any difference to the result. This Court has no jurisdiction with respect to ground 4. For this reason it is appropriate that the summons be otherwise dismissed since ground 4 could not have been the subject of a grant of leave.

The parties agreed that there was no reason why costs ought not follow the event in accordance with the general rule: UCPR, r 42.1.

For the reasons set out above, I make the following orders: