Murray v Hay [2000] NSWSC 190 (21 March 2000)

Last Updated: 16 October 2000

NEW SOUTH WALES SUPREME COURT

CITATION: Murray v Hay [2000] NSWSC 190

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 10006 of 2000

HEARING DATE{S): 6/03/2000

JUDGMENT DATE: 21/03/2000

PARTIES:

Wayne Edward Murray (appellant)

Loyce Halcyon Hay (respondent)

JUDGMENT OF: Hidden J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Magistrate R Rabbidge

COUNSEL:

SOLICITORS:

Appellant in person

Mark Bradbury (respondent)

CATCHWORDS:

LOCAL COURTS - Appeal from magistrate in Small Claims Division - denial of natural justice but magistrate's decision correct in law.

ACTS CITED:

Local Courts (Civil Claims) Act 1970

Justices Act 1902

DECISION:

Appeal dismissed

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HIDDEN J

Tuesday 21 March 2000

Wayne Edward Murray v Loyce Halcyon Hay

Reasons for judgment

1 HIS HONOUR: This is an appeal from the decision of a magistrate in an action brought by the respondent against the appellant for arrears of rent. His Worship was sitting in the Small Claims Division of the Local Court at Goulburn: see s6 and Div 2A of Part 4 of the Local Court (Civil Claims) Act 1970. He gave judgment for the respondent for the amount of arrears claimed, together with interest and costs. The appellant was unrepresented in those proceedings, as he was in this Court.

2 An appeal from the decision of a magistrate in a civil claim lies to this Court on a question of law only, and is dealt with in accordance with Part 5 of the Justices Act 1902: s69 of the Local Courts (Civil Claims) Act. However, s69(2A) confines an appeal from a decision in the Small Claims Division to the grounds of lack of jurisdiction or denial of natural justice. The appellant asserts a denial of natural justice in this case.

3 Although he did not deny having entered into the lease and did not suggest that it had been terminated, the appellant filed grounds of defence in the Local Court in which he asserted that the debt was not his and the respondent's real estate agent did not regard him as the tenant. It was his case that, from a time before the period over which arrears of rent were claimed, his brother had moved into the premises and had assumed responsibility for the rent. Among the documents which his Worship received in evidence was a copy of an undated agreement between the brother and the respondent's agent. The effect of that document was that the brother undertook to pay the rent, together with an additional weekly amount in discharge of arrears which had then accrued, and that a lease would be drawn up with him as the tenant "on completion of all arrears".

4 At the hearing in the Local Court both parties were content to rely upon documentary evidence. The matter was stood down so that, subject to his other commitments that day, his Worship could read the papers in chambers. Although the preliminary requirements of s23A of the Local Courts (Civil Claims) Act had been met, his Worship urged the appellant to discuss the matter with the respondent's solicitor with a view to settling it. It seems that the appellant then sought the advice of a chamber magistrate. When the matter was resumed the respondent's solicitor announced that no agreement had been reached.

5 His Worship then embarked upon his judgment. As he did so, the appellant asked if he could "interrupt for a minute". His Worship said that he could not, and proceeded to deliver his reasons. After he announced his conclusion that the appellant was liable for the arrears of rent, the appellant again protested that there was evidence to the effect that he was not the tenant. Nevertheless, his Worship heard submissions from the respondent's solicitor on interest and costs, and pronounced judgment.

6 On appeal, I asked the appellant why it was he sought to interrupt the magistrate as he began to give judgment. The effect of the appellant's reply was that he did not wish to produce any further evidence, documentary or oral, but sought an opportunity to address his Worship on the material which was before him. It is the refusal of that opportunity which is said to amount to a denial of natural justice.

7 On the face of it, it does appear that the appellant was denied procedural fairness at that point. It is true that proceedings in the Small Claims Division are to be conducted with minimal formality: s23B of the Local Courts (Civil Claims) Act. Nevertheless, although his Worship had received all the evidence in the case, both parties were entitled to present arguments about how that evidence should be assessed. This is what the appellant sought, and he should have been allowed to do so.

8 The question remains, however, whether this appeal should be allowed. On the material before me, I certainly could not substitute a judgment in favour of the appellant. At most, I could do no more than remit the matter to the magistrate in accordance with s109(d) of the Justices Act. Although the matter was not fully argued, I have no doubt that I retain a discretion not to do so if no purpose would be served by that course.

9 From his reasons it is clear that his Worship had regard to the undated agreement between the appellant's brother and the respondent's agent to which I have referred, as he did to the correspondence between the agent and the appellant from which it is clear that the agent was aware that the brother was in occupation. However, the undated agreement was no more than an agreement to enter into a lease with the brother if certain arrears then existing were paid. Apparently they were not and, in any event, no such lease was entered into. His Worship concluded that, as the lease to the appellant remained in force, the respondent was entitled to look to him for the arrears outstanding at the time of judgment. That entitlement was unaffected by any arrangement which the appellant might have made with his brother.

10 Clearly, that conclusion was correct in law and nothing which the appellant put to me on appeal could lead to any other view of the matter. Accordingly, I am satisfied that remission of the matter to the learned magistrate would lead inevitably to the same result. The appeal must be dismissed. If necessary, I shall hear the parties on the costs of the proceedings in this Court.

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LAST UPDATED: 04/05/2000