Dust v Fekonia & Anor [2005] NSWSC 793

Dust v Fekonia & Anor [2005] NSWSC 793

The plaintiff did not show error of law in the Magistrate's refusal to order a rehearing. The material before the Magistrate supported a finding that there was no good reason for the plaintiff's failure to attend the arbitration, because her solicitor knew or should have known the matter was listed for arbitration, did not attend or arrange representation, and gave the Arbitrator no reason why the matter should not proceed ex parte. Once those circumstances existed, s18A(3) empowered the Magistrate not to order a rehearing. The plaintiff also failed to make out a case for leave to appeal from the interlocutory order.

Jurisdiction
Australia
Judgment Date
15 August 2005
Procedural Posture
Appeal From Local Court Decision Refusing Rehearing of Arbitrated Action / Further Amended Summons in the Supreme Court; Leave Required Because the Appeal Was Against an Interlocutory Order
Outcome
The appeal failed; the summons was dismissed and the plaintiff was ordered to pay the costs of the summons.
Legal Topics
['application for Rehearing After Arbitration' 'failure to Attend Arbitration Hearing' 'good Reason for Non Attendance' 'error of Law on Appeal From Local Court' 'leave to Appeal From Interlocutory Order']
['civil Procedure' 'arbitration' 'appeals'] ['application for Rehearing After Arbitration' 'failure to Attend Arbitration Hearing' 'good Reason for Non Attendance' 'error of Law on Appeal From Local Court' 'leave to Appeal From Interlocutory Order']

Case Brief

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Procedural Posture

Appeal From Local Court Decision Refusing Rehearing of Arbitrated Action / Further Amended Summons in the Supreme Court; Leave Required Because the Appeal Was Against an Interlocutory Order

Legal Issues

  1. 1 ["Whether the Magistrate erred in dealing with the plaintiff's application for a rehearing under s18A(3) of the Arbitration (Civil Actions) Act 1983." 'Whether the plaintiff satisfied the court that there was good reason for her failure to attend the arbitration hearing.' 'Whether the Magistrate was required to order a rehearing or had a discretion not to do so.' 'Whether leave should be granted to appeal from the interlocutory order under s69(2B) of the Local Courts (Civil Claims) Act 1970.']

Ratio Decidendi

The plaintiff did not show error of law in the Magistrate's refusal to order a rehearing. The material before the Magistrate supported a finding that there was no good reason for the plaintiff's failure to attend the arbitration, because her solicitor knew or should have known the matter was listed for arbitration, did not attend or arrange representation, and gave the Arbitrator no reason why the matter should not proceed ex parte. Once those circumstances existed, s18A(3) empowered the Magistrate not to order a rehearing. The plaintiff also failed to make out a case for leave to appeal from the interlocutory order.

Court Disposition

The appeal failed; the summons was dismissed and the plaintiff was ordered to pay the costs of the summons.

Orders

  • ['The summons is dismissed.' 'The plaintiff is to pay the costs of the summons.']