Pritchard v Fryer

1. [1]

   HER HONOUR: By Summons filed on 3 July 2017, Andrew Ronald Pritchard, the plaintiff, seeks an order that the decision of Keogh LCM of 6 June 2017 dismissing the plaintiff’s Statement of Claim dated 16 November 2016 be set aside. He also seeks an order that her Honour’s order that he pay the defendant’s costs be set aside.

2. [2]

   An appeal to this Court against a judgment of the Local Court is as of right, but only on a question of law (Local Court Act 2007 (NSW) s 39(1)). The plaintiff contends that in dismissing the Statement of Claim he was denied procedural fairness.

3. [3]

   It is trite to observe that the requirements of procedural fairness apply to proceedings in the Local Court. In respect of an appeal from a Magistrate to this Court, Harrison AsJ in He v Hecker [2013] NSWSC 1219 at [28], observed:

4. [4]

   A denial of procedural fairness is an error of law: Escobar v Spindaleri (1986) 7 NSWLR 51.

5. [5]

   The Summons identifies three grounds by reason of which the plaintiff claims he was denied procedural fairness. Those grounds are set out at [23] below.

6. [6]

   At the hearing the plaintiff also claimed that he was ill on 6 June 2017 and did not attend the Court on that day for that reason as a further basis for the relief sought.

7. [7]

   The question whether the plaintiff’s claim of ill-health or any of the grounds identified in the Summons as constituting a denial of procedural fairness are supported by the evidence or are otherwise available as grounding the relief sought will be considered later in this judgment.

8. [8]

   On 17 January 2018 the plaintiff filed a Notice of Motion in these proceedings seeking, inter alia, that the Notice of Motion be heard in substitution for the hearing of the Summons. The duty judge listed the Notice of Motion for hearing together with the Summons on 1 February 2018; being the day appointed for the hearing of the Summons.

9. [9]

   For reasons which will become apparent, the multiplicity of orders sought by the Notice of Motion do not arise.

10. [10]

    Both before this Court and in the Local Court the plaintiff has appeared as a litigant in person. On each occasion the defendant was represented by Mr Sharrock of counsel.

History of Proceedings

1. [11]

   The plaintiff commenced proceedings in the Local Court on 16 November 2016 seeking the return of goods held by the defendant to which he claimed an entitlement. The goods comprised guitars of various styles, guitar accessories and guitar parts (“the goods”).

2. [12]

   The defendant manufactures and repairs guitars. In his Defence filed on 13 December 2016, he admitted to holding the goods at his premises. He claims a lien over the goods by reason of unpaid invoices issued to the plaintiff for work done on the goods and for their storage.

3. [13]

   On 25 January 2017 the proceedings were listed for callover in the Local Court. On that occasion, on the plaintiff’s application, leave was granted for him to file and serve an Amended Statement of Claim. The orders made on that date are as follows:

4. [14]

   The plaintiff did not file an Amended Statement of Claim on or before 22 February 2017, or at all.

5. [15]

   On 20 March 2017 the plaintiff filed a Notice of Motion in the Local Court seeking to set aside the orders made by the Court on 25 January 2017. The following orders were sought:

6. [16]

   The Notice of Motion was heard on 6 April 2017. The plaintiff and defendant appeared.

7. [17]

   The Court made the following orders on that occasion:

8. [18]

   The plaintiff did not file an Amended Statement of Claim on or before 27 April 2017 or at all. Accordingly, the defendant was relieved of the obligation to file and serve any defence or cross-claim or to otherwise comply with the orders made on 6 April 2017.

9. [19]

   On 6 June 2017 the proceedings were listed for a directions hearing before Keogh LCM in accordance with the orders made on 6 April 2017. There was no appearance for the plaintiff. In circumstances where the plaintiff had not appeared to prosecute his claim; where there was no explanation for his non-attendance; and where he had twice failed to comply with the Court’s directions, the defendant submitted he was entitled to an order that the Statement of Claim, as originally filed, be dismissed.

10. [20]

    In considering the defendant’s submissions, the Court admitted into evidence a transcript of a recording left by the plaintiff on the defendant’s answering machine on 21 May 2017. That transcript was in evidence before this Court. In the Local Court it was tendered through the defendant. The defendant gave the following evidence:

11. [21]

    The transcript of the answering machine message reads as follows:

12. [22]

    After considering the transcript of the answering machine message, Keogh LCM gave the following reasons for dismissing the Statement of Claim:

Grounds of Denial of Procedural Fairness

1. [23]

   The plaintiff contends that in dismissing the Statement of Claim, the learned Magistrate failed to afford him procedural fairness on three grounds, particularised in the Summons as follows (“the pleaded failures”):

2. [24]

   On the hearing of the plaintiff’s Notice of Motion on 6 April 2017, Brender LCM ordered that the defendant file an Amended Defence and all affidavits in support of that Amended Defence, by 25 May 2017. The Amended Defence and evidence was only to be filed in response to the filing of an Amended Statement of Claim on or before 27 April 2017. Her Honour also ordered that the defendant’s evidence was to contain “a reasonably detailed list of all plaintiff’s goods currently held”. Had the plaintiff filed an Amended Statement of Claim, the defendant would have been obliged to serve a detailed list of the plaintiff’s goods held by him. However, the defendant was relieved of that obligation given the plaintiff’s election not to file an Amended Statement of Claim in which a reformulated cause of action based on the detained goods might have been prosecuted.

3. [25]

   In these circumstances it is difficult to see how any complaint about the Court’s alleged failure to order the defendant to provide a detailed stocktake list of the items in his possession is in breach of the Court’s obligation to afford to the plaintiff procedural fairness in dealing with the defendant’s application that the Statement of Claim be dismissed. Any practical disadvantage that the plaintiff may have encountered in reformulating his claim as a consequence of being unable to properly particularise the goods which he sought to have the defendant return was a practical disadvantage entirely of his own making.

4. [26]

   As is clear from the learned Magistrate’s reasons in [22] above, neither of the matters in grounds (b) and (c) have any relationship with the reasons her Honour gave in dismissing the Statement of Claim. Each of grounds (b) and (c) refer in terms to orders 7 and 8 respectively of the plaintiff’s Notice of Motion of 20 March 2017 which was heard on 6 April 2017. The plaintiff appeared on the hearing of that Notice of Motion and, save for the orders made on 6 April 2017 (as set out in [17]), his Honour dismissed the Notice of Motion.

5. [27]

   Fundamental to her Honour’s decision on 6 June 2017 to dismiss the Statement of Claim was the plaintiff’s failure to appear on that date to prosecute his claim; his apparent desire (as reasonably ascertained from the transcript of the answering machine message) to take no further part in the proceedings; his failure to comply with the directions of the Court on 6 April 2017; and ultimately that the Statement of Claim, as filed, did not disclose a cause of action.

6. [28]

   None of the pleaded grounds on the basis of which it is contended that procedural fairness was denied is made out.

7. [29]

   At the hearing of the Summons the plaintiff contended that there were additional bases upon which he claims to have been denied procedural fairness.

8. [30]

   The plaintiff claimed that he did not appear on 6 June 2017 due to ill-health, and that the dismissal of the Statement of Claim in those circumstances denied him procedural fairness.

9. [31]

   In respect of his claim of ill-health, the defendant deposed, at paragraphs 22 and 23 of his affidavit of 30 August 2017, to the following:

10. [32]

    Notwithstanding the matters to which the plaintiff deposes, on the hearing of the Summons he did not tender any correspondence or report from his medical practitioner or any other evidence of his ill-health or incapacity on 6 June 2017, whether as a result of hospital admission or otherwise.

11. [33]

    In any event, the question with which this Court is concerned is not whether the plaintiff was suffering from ill-health and unable to attend the Local Court on 6 June 2017, but whether Keogh LCM, having regard to the information before her, denied the plaintiff procedural fairness in dismissing the Statement of Claim in his absence.

12. [34]

    There is no evidence before this Court that her Honour knew, ought to have known, or had any reason to suspect that the plaintiff was unwell on 6 June 2017 and that his absence might be explained on that basis. In any event, the possibility that he may have been unwell was considered by her Honour as the transcript of the hearing of 6 June 2017 reflects.

13. [35]

    The plaintiff offered no explanation for the failure to adduce evidence in this Court of his ill-health on 6 June 2017. In the absence of such evidence, his evidence that he was unwell on 6 June 2017 carries no weight.

14. [36]

    The plaintiff submitted that the defendant misled the Court on 6 June 2017 by:

15. [37]

    On 1 June 2017 the plaintiff filed a Summons in the District Court seeking to transfer the Local Court proceedings to that Court. The proceedings the subject of that application are identified as the Statement of Claim as originally filed, that is, the Statement of Claim in its unamended form as dismissed by Keogh LCM on 6 June 2017.

16. [38]

    On 5 June 2017 Malcolm Hill, a licensed process server, attempted to effect service of the Summons on the plaintiff. The following is deposed to in Mr Hill’s affidavit:

17. [39]

    On the basis of the conversation to which Mr Hill deposes, it can reasonably be surmised that the defendant had some awareness of the plaintiff’s intention to transfer the Local Court proceedings to the District Court, and some awareness that the plaintiff had filed a Summons in the District Court to effect that result.

18. [40]

    While in his evidence before the learned Magistrate the defendant did not refer to the plaintiff’s apparent intention to transfer the Local Court proceedings to the District Court, and was not asked by his counsel about his discussions with the process server the previous day, he was under no obligation to disclose his understanding of the plaintiff’s intentions. It was for the plaintiff to prosecute his claim, inclusive of advising the Local Court of his intention to bring an application to transfer the proceedings to another court of competent jurisdiction. For reasons that have been previously discussed, the plaintiff had no reasonable excuse for his failure to attend the Local Court on 6 June 2017 and no reasonable excuse for failing to advise the Court of his intentions.

19. [41]

    It follows that I am not persuaded that the defendant misled the Court in any respect on 6 June 2017.

20. [42]

    Finally, the plaintiff complained that the defendant raised numerous invoices – “at least 16” – in respect of the goods the subject of the claim in the Local Court following the filing of the Statement of Claim on 16 November 2016. He submitted in this Court that the raising of these further invoices prevented him from filing the Amended Statement of Claim pursuant to the grants of leave on 25 January 2017 and 6 April 2017.

21. [43]

    The plaintiff failed to articulate, in any intelligible way, what bearing the raising of invoices after 16 November 2016 had on the learned Magistrate’s decision to dismiss the Statement of Claim on 6 June 2017. The plaintiff repeatedly stated that the invoices were fraudulent and that the raising of fraudulent invoices constituted patent evidence of the defendant’s tortious conduct, yet conceded that he did not amend his Statement of Claim to include any pleading in respect of the tort of deceit or to commence proceedings in the District Court to prosecute such a claim. At the time that the Statement of Claim was dismissed the only cause of action was for the return of goods and as her Honour found, it was incompetently pleaded.

22. [44]

    Not only was the defendant at liberty to raise further invoices following the filing of the Statement of Claim in the Local Court on 16 November 2016, the Notice of Motion heard and determined on 6 April 2017 contemplated that that may occur by reason of the orders made for the filing and service of a cross-claim. The raising of those further invoices did not trespass upon the plaintiff’s ability to file an Amended Statement of Claim. Moreover, I am not satisfied that raising further invoices has any relevance at all to the decision of 6 June 2017 which the plaintiff seeks to have set aside and, accordingly, it is of no relevance to the relief the plaintiff seeks.

Findings and conclusions

1. [45]

   The evidence before me does not establish the pleaded failures to afford procedural fairness to the plaintiff, nor does it support the grounds advanced by the plaintiff at the hearing.

2. [46]

   A decision to enter judgment adverse to a party in the party’s absence is a discretionary judgment obliging the Court to inform itself that the pre-requisites of procedural fairness, including the dictates of natural justice, are met. It is a decision that will only be set aside where the discretion was based upon the incorrect application of principle, was not exercised judicially, or where it can be shown to have resulted in gross injustice. I am not persuaded that errors of this kind infected the Magistrate’s decision.

Orders

1. [47]

   I make the following orders:

   1. (1)

      The Summons is dismissed.

   2. (2)

      The Notice of Motion is dismissed.

   3. (3)

      The plaintiff is to pay the defendant’s costs.