Hungerford v Cantor [2020] NSWDC 326

Hungerford v Cantor [2020] NSWDC 326

The plaintiff's further adjournment application was refused because obtaining Allianz material would have no utility in a limited appeal confined to the stated procedural fairness ground, and the plaintiff had no entitlement to rely on fresh evidence that could have been but was not obtained before the Local Court hearing. The appeal was dismissed because the evidence did not show that the Assessor's refusal of the Local Court adjournment deprived the plaintiff of the opportunity to present admissible evidence or argument; at most he was unorganised after being on notice of his solicitor's illness.

Jurisdiction
Australia
Judgment Date
24 June 2020
Procedural Posture
Civil Appeal From a Decision of an Assessor in the Small Claims Division of the Local Court of New South Wales / District Court Hearing of Plaintiff's Adjournment Application and Appeal
Outcome
Plaintiff's adjournment application refused; appeal dismissed with costs.
Legal Topics
['appeal From Small Claims Division of Local Court' 'adjournment Application' 'denial of Procedural Fairness' 'fresh Evidence on Appeal' 'case Management']
['practice and Procedure' 'civil Procedure' 'appeals' 'procedural Fairness'] ['appeal From Small Claims Division of Local Court' 'adjournment Application' 'denial of Procedural Fairness' 'fresh Evidence on Appeal' 'case Management']

Case Brief

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Procedural Posture

Civil Appeal From a Decision of an Assessor in the Small Claims Division of the Local Court of New South Wales / District Court Hearing of Plaintiff's Adjournment Application and Appeal

Legal Issues

  1. 1 ["Whether the plaintiff's application to adjourn the District Court appeal should be granted to allow him to obtain documents or recordings from Allianz by subpoena." "Whether the refusal of an adjournment in the Local Court, when the plaintiff's solicitor was ill and the plaintiff appeared unrepresented, denied the plaintiff procedural fairness." 'Whether the District Court appeal from the Small Claims Division could be conducted by relying on fresh evidence not before the Local Court.']

Ratio Decidendi

The plaintiff's further adjournment application was refused because obtaining Allianz material would have no utility in a limited appeal confined to the stated procedural fairness ground, and the plaintiff had no entitlement to rely on fresh evidence that could have been but was not obtained before the Local Court hearing. The appeal was dismissed because the evidence did not show that the Assessor's refusal of the Local Court adjournment deprived the plaintiff of the opportunity to present admissible evidence or argument; at most he was unorganised after being on notice of his solicitor's illness.

Court Disposition

Plaintiff's adjournment application refused; appeal dismissed with costs.

Orders

  • ["Pursuant to s 41(2)(d) of the Local Court Act 2007 (NSW), the plaintiff's appeal, commenced by summons dated 26 August 2019, is dismissed." "The plaintiff is to pay the defendant's costs of the proceeding, including costs reserved."]