Juric v Dimitriou and Associates Pty Limited [2005] NSWSC 968 (4 October 2005)

Last Updated: 5 October 2005

NEW SOUTH WALES SUPREME COURT

CITATION: Juric v Dimitriou & Associates Pty Limited [2005] NSWSC 968



CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 13653/05

HEARING DATE{S): 26 September 2005

JUDGMENT DATE: 04/10/2005

PARTIES:
Cedna Juric (Plaintiff)
Dimitriou & Associates Pty Limited (Defendant)

JUDGMENT OF: Associate Justice Malpass

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 1292/03

LOWER COURT JUDICIAL OFFICER: Coombs LCM

COUNSEL:
Mr C Carolan (Plaintiff)
No appearance (Defendant)

SOLICITORS:
Back Schwartz Vaughan (Plaintiff)
Nemes Thomas & Co (Defendant)


CATCHWORDS:
Second appeal by plaintiff - sufficiency of reasons - issues not decided - increase in the quantum of the verdict and costs ordered on an indemnity basis.

ACTS CITED:


DECISION:
The decision of the Magistrate and any judgment or orders made by him are set aside
the matter is remitted to the Local Court for determination according to law
the matter is to be heard by another Magistrate
the defendant is to pay the costs of the summons on an indemnity basis.


JUDGMENT:

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION


Associate Justice Malpass


4 October 2005


13653 of 2005 Cedna Juric v Dimitriou & Associates Pty Limited


JUDGMENT

1 His Honour: In proceedings 12243 of 2004, I delivered judgment on 26 October 2004 (Juric v Dimitriou & Associates Pty Limited [2004] NSWSC 982). It dealt with an earlier appeal by the plaintiff. The judgment and orders of Coombs LCM were set aside and the matter was remitted back to the Local Court for determination according to law.

2 In the judgment of the Magistrate, inter alia, a number of issues were left unaddressed. One issue (which had been referred to as “the contract point”) was but briefly and unsatisfactorily addressed.

3 Following the delivery of my judgment, the Magistrate made contact with my chambers. The communication was in the following terms:-

Subject: Juric v Dimitriou & Associates Pty Ltd

Thank you for the copy of the judgment.
I refer you to S.69(2A) of the Local Courts (Civil Claims) Act.
If I read the Section correctly the appeal was incompetent and the decision on appeal ultra vires.
Was this point not raised before you?
How did the Registry allow it to proceed?

4 The matters raised in the communication had not been either argued or put in issue during the hearing of the appeal. The Magistrate was so informed.

5 Subsequently, the Registrar of the Local Court at Fairfield issued a notice to the parties which contained the following:-

I refer to your request for relisting of this matter as per Supreme Court Orders which I have forwarded to Magistrate Coombs. Mr Coombs directed that the matter will not be relisted as the decision of the Supreme Court was “ultra vires” under Sect 69C of the Act.

6 The plaintiff (who was the defendant in the Local Court) made submissions to the Local Court. The submissions contained the following:-

1 The Defendant submits that this matter should be relisted for a full hearing before the Court so that it can be determined according to law.

2 The Defendant submits the Judgment of the Supreme Court that the matter should be determined according to law requires in effect a new hearing of the matter to be conducted.

3 In the circumstances, the Defendant contends it would be appropriate for the matter to be listed for hearing before a different magistrate. The Defendant contends that the notice received from the Court dated 16 November 2004 that the decision of the Supreme Court was wrong at law reveals an apprehended bias against the Defendant.

4 In all the circumstances having regard to the interests of justice, it is submitted that this matter should be listed for a fresh hearing in the Local Court before a different Magistrate so that all of the issues between the parties can be properly ventilated and a determination made according to law.

7 The proceeding in the Local Court came to be listed on 19 July 2005. The plaintiff was represented by counsel. There was no appearance by the defendant (who was the plaintiff in the Local Court). I am informed that no opportunity was given for the making of, inter alia, submissions.

8 A further brief judgment was then delivered. It was in the following terms:-

1 In late 1999, the defendant was injured in a motor accident, and subsequently engaged a solicitor, Debbie Jane Paton (Paton) practicing as Patons Lawyers. In March a costs agreement was entered between them. Shortly after Ms Paton’s practicing certificate was cancelled, a manager was appointed and Phillip Walton (Walton) was appointed as agent. In December 2000 Paton sold the practice to Walton. On 14 February 2002, Paton and Demetriou [sic] entered into a deed of assignment which assigned to the latter moneys owing to Paton by the defendants (among others).

2 The plaintiff contends that notice of the assignment was given to Mrs Juric, the defendant, who says that she did not receive notice.

3 The issues raised to be determined, as remitted by the Supreme Court can be conveniently titled:

4 (a) The Notice Point, (b) The contract point and (c) the Quantum point

5 Notice Point

6 As regards the question of whether notice was given of the assignment in question, I find that notice was given, because the letter and notice were correctly addressed, and despite her denials, which on balance I do not believe, I find that express notice was given.

7 The Contract Point

8 On the “Contract Point” I do not need to make a decision as the point was not pleaded.

9 The Quantum Point

10 As to the quantum of the sum for judgment I accept the submission of the plaintiff that the whole amount should be the award.

11 The Disqualification Submission

12 There is no reason why this matter should be re-heard by another magistrate, nor is that suggested by the Supreme Court.

13 The result is therefore a verdict for the Plaintiff in the sum of $6,650-47 plus costs at the Court rate from 30th April 2002 and indemnity costs on an indemnity basis from 4 May 2004.

9 Presumably, by the time of the making of the second decision, the Magistrate no longer laboured under any misapprehension as to the first appeal to this court being ultra vires. Perhaps such misapprehension arose because he may have thought that the proceedings had remained in the Small Claims Division.

10 On 15 August 2005, the plaintiff filed a summons in this court in proceedings 13653 of 2005. It seeks, inter alia, to have the further decision of the Magistrate set aside.

11 Relief is available in this court, inter alia, where there has been error of law. The onus rests with the plaintiff to demonstrate an entitlement to relief.

12 In the earlier proceedings, the defendant had been represented by counsel and solicitors (Nemes Thomas & Co). The court has been informed that counsel has returned his brief.

13 The hearing of this appeal took place on 26 September 2005. The plaintiff was represented by counsel. There has been no appearance by the defendant in the proceedings and the defendant did not attend on the day of hearing.

14 Unfortunately for the parties (and particularly because such a modest sum is at issue), the court has to once again set aside what has been done by the Magistrate. The plaintiff has demonstrated a clear entitlement to relief.

15 Once again, the judgment is extremely brief. The disclosure of reasoning process is inadequate. What has been decided is the subject of error in point of law. Again, issues have been left unaddressed and the “contract point” was not decided (it was said that it had not been pleaded). Findings of fact (relevant to the question of quantum) have been made which conflict with what was said in the earlier judgment (as a result the amount of the verdict was increased). The plaintiff was ordered erroneously to pay costs on an indemnity basis.

16 The decision of the Magistrate and any judgment or orders made by him are set aside. The matter is remitted to the Local Court for determination according to law. The matter is to be heard by another Magistrate.

17 The plaintiff has relied on what is known as a Calderbank letter. It invited the defendant to consent to the orders sought in the summons on the basis that each party pay their own costs. The letter was ignored.

18 In the circumstances of this case, it seems to me that the defendant should pay the costs of the summons on an indemnity basis and I so order.

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LAST UPDATED: 04/10/2005