Neale v Gadens Lawyers Sydney Pty Ltd

[2009] NSWSC 910

CITATION:	Neale v Gadens Lawyers Sydney Pty Ltd [2009] NSWSC 910
HEARING DATE(S):	2 September 2009
JUDGMENT DATE :	2 September 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Price J
EX TEMPORE JUDGMENT DATE:	2 September 2009
DECISION:	1. The order made by O'Shane LCM on 19 February 2009 striking out the appellant's amended defence is set aside. 2. The order made by O'Shane LCM on 19 February 2009 entering judgment for the respondent in the sum of $22,638.77 plus costs is set aside. 3. The proceedings are remitted back to the Local Court at the Downing Centre to be heard and determined according to law. 4. The respondent is to pay the applicant's legal costs of the appeal. The respondent is to have an indemnity certificate under s 6 of the Suitors Fund Act 1951
CATCHWORDS:	Common Law - Local Court appeal - whether error in striking out defence - whether error in entering summary judgment
LEGISLATION CITED:	Local Court Act 2007 s 39(1)
CATEGORY:	Principal judgment
CASES CITED:	Critchley v Conway [2009] NSWCA 217 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
PARTIES:	James Neale (Appellant) Gadens Lawyers Sydney Pty Ltd (Respondent)
FILE NUMBER(S):	SC 2009/11510
SOLICITORS:	James Neale (in person) Ms James
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	2008/5767
LOWER COURT JUDICIAL OFFICER :	O'Shane LCM
LOWER COURT DATE OF DECISION:	19 February 2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

2 September 2009

2009/11510 Neale v Gadens Lawyers Sydney Pty Ltd

JUDGMENT

1 HIS HONOUR: The appellant seeks leave to appeal against the orders made by O’Shane LCM in the General Division of the Local Court on 19 February 2009 whereby her Honour struck out the appellant’s amended defence and proceeded to enter judgment in favour of the respondent in the amount of its claim, namely in the sum of $22,638.77 plus costs. The appellant seeks orders setting aside her Honour’s judgment and for the matter to be remitted to the Local Court for determination at law.

2 The respondent, a firm of solicitors, submits to the making of all orders sought, save as to costs: UCPR 6.11.

3 Appeals to the Supreme Court from the General Division of the Local Court are confined to an error of law and are as of right: s 39(1) of the Local Court Act 2007. The issues identified in the summons for leave to appeal raise questions of law and leave to appeal is not required.

4 The litigation in the Local Court concerned a claim by the respondent for legal work between 12 July 2007 and 30 October 2007 which the respondent claimed had been done for and on behalf of the appellant which the appellant disputes.

5 As the respondent has filed a submitting appearance, it is unnecessary to deal with the appeal in any detail. It seems that, when the proceedings came on for hearing before the Magistrate, her Honour took the view that she should strike out the appellant’s amended defence as no reasonable defence was disclosed.

6 No application had been made by the respondent’s counsel to strike out the defence or for summary judgment. The appellant who was representing himself unsuccessfully opposed the action which her Honour proposed. The amended defence was struck out and summary judgment was entered.

7 With respect to her Honour, it is difficult to understand how she came to consider that no reasonable defence was disclosed by the pleading. The pleading puts in dispute the respondent’s retainer and specifies what the appellant says was its terms. The affidavit material which had been filed by the appellant in the Local Court provided some support for his case. The defence should not have been struck out.

8 In order to obtain summary judgment, it must be demonstrated that the defence is so obviously untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. In Critchley & Ors v Conway & Anor [2009] NSWCA 217 Beazley JA observed at [8] that:

“ Summary judgment is a radical remedy.”

9 This was not an appropriate case for summary judgment and the matter should have proceeded to a hearing on the evidence. In my respectful opinion her Honour erred in law.

10 Accordingly, I make the following orders:

1. The order made by O’Shane LCM on 19 February 2009 striking out the appellant’s amended defence is set aside.

2. The order made by O’Shane LCM on 19 February 2009 entering judgment for the respondent in the sum of $22,638.77 plus costs is set aside.

3. The proceedings are remitted back to the Local Court at the Downing Centre to be heard and determined according to law.

4. The respondent is to pay the applicant’s legal costs of the appeal. The respondent is to have an indemnity certificate under s 6 of the Suitors Fund Act 1951.
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