Denny v Snowy River Shire Council [2008] NSWSC 903

New South Wales Supreme Court

CITATION : Denny v Snowy River Shire Council [2008] NSWSC 903

HEARING DATE(S) : 1 September 2008

JUDGMENT DATE : 8 September 2008

JUDGMENT OF : Malpass AsJ

DECISION : Application for extension of time refused; application for a stay of Writ refused; proceedings dismissed; plaintiff to pay the costs of the proceedings.

CATCHWORDS : COMMON LAW - extension of time and stay - denial of natural justice

LEGISLATION CITED : Conveyancing Act 1919 Local Courts Act 1982

CATEGORY : Principal judgment

PARTIES : Janice Denny (Plaintiff) Snowy River Shire Council (Defendant)

FILE NUMBER(S) : SC 11985/08

COUNSEL : DJA Mackay (Defendant)

SOLICITORS : Plaintiff in person Minter Ellison Lawyers (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 22/02

LOWER COURT JUDICIAL OFFICER : Keogh LCM

LOWER COURT DATE OF DECISION : 10 October 2003

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Monday 8 September 2008

11985/2008 Janice Denny v Snowy River Shire Council

JUDGMENT 1 HIS HONOUR: The defendant commenced proceedings in the Local Court on 14 February 2002. The claim was in the sum of $260 for pound fees for the maintenance of a dog. Thereafter, there ensued proceedings with a long history. 2 The proceedings came to a judgment on 10 October 2003. It was delivered orally. The defendant obtained judgment in the sum of $1047 (including $704 for costs). During the hearing there were numerous adjournments and non-attendances by the plaintiff. I shall briefly mention certain aspects of the history. 3 A default judgment was obtained on 22 May 2002. In June 2002 the judgment was set aside by consent. The plaintiff then defended the proceedings on the basis that she was not the owner of the dog. 4 In July 2003 the plaintiff did not appear and a further judgment was obtained. This was set aside on 20 August 2003 in the absence of the defendant (it was under the misunderstanding that further adjournment was being sought). On 10 October 2003, the defendant successfully had the judgment set aside and a hearing was had of the defendant's claim. The defendant then obtained the judgment which was earlier mentioned. The plaintiff did not appeal from that decision. 5 Prior to March 2008, there had been some unsuccessful attempts to enforce the judgment. It appears, inter alia, that there may have been problems locating the plaintiff and that there may have been slowness in the local Sheriff's Office. 6 The Council took steps for the issue of a writ of execution in March 2008. A motor vehicle and horse trailer were seized and a sale was arranged for 15 May 2008. 7 This action brought the plaintiff to this Court seeking a stay of the writ. The proceedings in this Court are now also developing a long history. The plaintiff is now also seeking an extension of time to bring an appeal out of time. 8 On 12 May 2008 (the first return date of the Summons in these proceedings) the plaintiff gave the defendant signed notices of disposal in respect of the vehicle and the trailer. The documents purport to transfer the vehicle and trailer to her husband. The defendant contends that these transactions are void by reason of s 37A of the Conveyancing Act 1919. Although it has not filed any process to that effect, it seeks declarations that the transactions are void. 9 The applications brought by the plaintiff were heard on 1 September 2008. She again appeared in person. The defendant was legally represented (Mr Mackay of counsel appeared on its behalf). 10 Before proceeding further, I should first dispose of one matter. It concerns the dispute as to ownership of the vehicle and trailer. The defendant had taken the unusual course of seeking declarations by way of a request in the affidavit material relied on by it. This is not a satisfactory way of seeking such relief. 11 The dispute between the parties involves questions of fact and allegations of fraud. Although only a small amount is involved, it can only be satisfactorily dealt with if the proper processes of the Court are utilised. There should be an originating process and an identification of the issues. The rules require that a statement of claim be utilised where there are allegations of fraud. 12 The appropriate venue for the determination of this matter is the Local Court. Proceedings could have been properly commenced in that Court. I have informed the parties that I propose to transfer that matter to that forum. Accordingly, I order that the matters concerning the ownership of the vehicle and trailer and the application of s 37A of the Conveyancing Act 1919 are transferred to the Local Court. 13 I now return to what is in issue before me. The plaintiff first needs an extension of time in which to bring an appeal against the decision of the Local Court. The relevant judgment was obtained in proceedings determined in the Small Claims Division of the Local Court. As has been often said, there is a limited right of challenge to such decisions. 14 In the present case, the only avenue available to the plaintiff is denial of natural justice (see s 73 Local Courts Act 1982). 15 The concept of natural justice is a flexible one. It involves considerations of fairness. Usually, the relevant question is whether or not the party seeking to appeal was given a reasonable opportunity to present his or her case by the Court. Each case tends to turn on its own particular facts. 16 At the outset, I should mention one major handicap confronting the plaintiff. There is limited information available as to what took place during the hearing. There is no transcript placed before the Court. I shall proceed to briefly refer to what information is available to the Court (see, inter alia, Exhibit 1). 17 A hearing in excess of two hours took place. Mr Smith, who is a Shire ranger (and not a lawyer) appeared for the defendant. The plaintiff appeared in person. Both parties led evidence and addressed the Court. There is nothing in the material to suggest that the Court did not give the plaintiff a reasonable opportunity to present her case. 18 It is common ground that the issue was a narrow and simple one (whether or not the plaintiff was the owner of the dog). Her contention is that it was owned by Mr Nell. 19 The essence of the plaintiff's contention is that she was denied natural justice because she had retained a lawyer from the Wesley Community Legal Service ("the Service") and that the lawyer did not attend to present her case and did not arrange for Mr Nell to attend and give evidence. There is no independent evidence to corroborate her version of events. 20 The first observation to be made is that even if true, such matters would not of themselves give rise to a denial of natural justice by the Court. This Court was not told that the plaintiff unsuccessfully sought an adjournment. The material does not suggest that any such application was made. 21 The defendant has placed documentary material before the Court that refutes the plaintiff's contention that her legal adviser failed to attend Court. The documentary material makes clear that the lawyer was not retained to appear in those proceedings. 22 The Service provides free legal representation to persons not eligible for legal aid and unable to afford to pay for a private practitioner. The documentation demonstrates that Janelle Ford of the Service acted for the plaintiff in a criminal matter concerning cattle duffing. It also demonstrates that, save for acting for her in that matter, the service refused to represent her in any other matters. 23 It may be added that, save for the cattle duffing proceedings, she has appeared unrepresented in other proceedings (including related criminal proceedings and proceedings in this Court). 24 As earlier mentioned, the plaintiff also complains that because of the lawyer's default she did not have the benefit of the evidence of Mr Nell. Leaving aside the question of a retainer, the plaintiff did have a statement from Mr Nell (provided to her by the lawyer). It was admitted into evidence. It was not said that he could have given additional evidence and it is usual for the Division to receive statements only. There seems to be no dispute that the court took the statement into account when determining the issue of ownership. 25 The plaintiff bears the onus of satisfying the Court that she was denied natural justice. In my view, she has failed to make out that contention. Such a result can be reached on an assumption that her contention is founded on fact. Although she was not cross examined, other material placed before the Court strongly indicates that it was not so founded. 26 The judgment was delivered nearly five years ago. It concerned a very modest sum and was determined on a simple question of fact. The Local Court is a busy court and other litigants must also be considered. This application seems to be motivated by unhappiness that the plaintiff may have to satisfy the judgment. Such a situation does not give rise to a denial of natural justice. 27 It also needs to be mentioned that the granting of an extension of time is a matter for an exercise of discretion. Until the issue of the writ, the plaintiff took no action by way of appeal. Whilst there has been no argument directed to the matter, the Court is usually required to take into account material that demonstrates how the proposed appellant came to be in default and explain the delay preceding action to bring about an appeal. The material is not satisfactory on these matters. 28 In the circumstances of this case, an appeal would be a futile exercise, I am not satisfied that the plaintiff is entitled to either an extension of time or a stay on the Writ. The application for extension of time is refused. The application for a stay of Writ is refused. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned. **********

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