Hetherington-Gregory v Julie Foster trading as All Vehicle Services

[2013] NSWCA 20

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hetherington-Gregory v Julie Foster trading as All Vehicle Services [2013] NSWCA 20

Hearing dates:

7 February 2013

Decision date:

07 February 2013

Before:

Macfarlan JA at [1]; [19]
Barrett JA at [7]

Decision:

(1) Dismiss with costs the applications for extension of time and for leave to appeal, and the applicant's notices of motion filed on 13 August and 4 September 2012.

(2) Dismiss the first respondent's motion filed on 15 August 2012 on the basis that the application against the first respondent is dismissed and the orders sought in the motion are therefore unnecessary.

(3) Order Ms Hetherington-Gregory to pay the first respondent's costs of its motion filed on 15 August 2012.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal dismissed - no issue of principle

Legislation Cited:

Supreme Court Act 1973

Texts Cited:

Ritchie's Uniform Civil Procedure NSW

Category:

Procedural and other rulings

Parties:

P A Hetherington-Gregory (Applicant)
All Vehicle Services (First Respondent)
Roads and Maritime Services (Second Respondent)
Motor Traders Association (Third Respondent)

Representation:

Counsel:
Self-represented Applicant
S Cirilllo (First Respondent)
G Sarginson (Second Respondent)
D M Loewenstein (Third Respondent)
Solicitors:
Self-represented Applicant
Paton Hooke Lawyers (First Respondent)
Crown Solicitor's Office (Second Respondent)
Consolidated Lawyers Pty Ltd (Third Respondent)

File Number(s):

CA 2012/222495

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-06-12 00:00:00

Before:

Toner DCJ

File Number(s):

DC 2012/130012

Judgment

1. MACFARLAN JA: The Court will now deliver judgment in this matter. First, I deal with the application for review of Basten JA's decision. By notice of motion filed on 13 August 2012 Ms Hetherington-Gregory sought the discharge of orders made by Basten JA recorded in his Honour's judgments of 23 July and 6 August 2012, ([2012] NSWCA 232 and 257). The application is made under s 46(4) of the Supreme Court Act 1973 and it has been heard by two judges of the Court in accordance with a direction made under s 46B(2) by the Chief Justice (see in that regard s 46B(1)(b)).

1. The applicant has not been able to demonstrate that his Honour made any error of principle or that either of his decisions was plainly wrong (see in this regard Ritchie's Uniform Civil Procedure NSW [SCA 46.10]), nor in fact any arguable basis for that being the case. As a result, the motion should be dismissed with costs.

1. Next, the first respondent's motion. By notice of motion filed on 15 August 2012 the first respondent, Julie Foster trading as All Vehicle Services, sought an order removing her as a party to the application for leave to appeal as no order sought to be appealed against was made in her favour, or indeed concerned her at all.

1. It is clear from the evidence before us that this proposition is correct in that the primary judge dismissed the proceedings in the District Court so far as they related to the second and third respondents and did not make any order concerning the proceedings against the first respondent. As the application for leave to appeal to this Court is to be dismissed so far as it relates to the second and third respondents, it should be dismissed also as against the first respondent. The applicant should pay the first respondent's cost in the application including of the notice of motion.

1. Next, I deal with the applicant's notice of motion filed on 4 September 2012. By notice of motion filed on 4 September 2012 the applicant sought a variety of orders which, if made, would effectively give her the relief she seeks on the appeal which she seeks leave to pursue and on the proceedings at first instance. It would clearly be inappropriate for the Court to make these orders without a grant of leave to appeal and, in the case of some of the orders, in any event. As the application for leave to appeal is to be dismissed this notice of motion should also be dismissed with costs.

1. I will ask Justice Barrett to deal with the application for leave to appeal.

1. BARRETT JA: The applicant wishes to have leave to appeal from a decision of the District Court and an extension of time in which to pursue a claim for that leave.

1. The nature of the claims made by the applicant, as plaintiff in the District Court appears from the judgment of his Honour Judge Toner of 12 June 2012. The first defendant was a motor repairer at Taree who had exercised a lien over the applicant's vehicle, 1968 Bedford bus that was apparently also her home, for moneys due.

1. The other second defendants were the Motor Traders Association (of which the first defendant was a member) and the State of New South Wales in effectively two capacities, Roads and Maritime Services and the Department of Fair Trading.

1. The first defendant refused to issue a certificate of roadworthiness for the applicant's bus on the ground that it did not meet necessary standards. A dispute developed and the first defendant enlisted the assistance of its trade association, which then had some communication with the applicant. Because the applicant held no certificate of roadworthiness she could not obtain registration of the vehicle in New South Wales. It had been registered in Victoria but it appears that that registration has expired.

1. The applicant sued all defendants on supposed causes of action arising out of the circumstances that the first defendant declined to issue a certificate of roadworthiness, that the Motor Traders Association "intimidated" her and that the government agencies had not taken or supported action by the applicant to obtain registration of the bus.

1. Judge Toner ordered summary dismissal of the action as against the Motor Traders Association and the State because the summons disclosed no viable cause of action against them within the jurisdiction of the District Court.

1. His Honour's judgment was in two parts. The first, at pp 271 to 274 of the Court book, dealt with the application for summary dismissal by the State and the other part, at pp 279 and 280, dealt with a corresponding application by the Motor Traders Association. Exhibit B now before the Court sets out the orders made on the applications of those two defendants.

1. In dealing with the claims against the State, his Honour referred to the legislative provisions concerning the registration of motor vehicles, the role played by inspection stations such as that operated by the first defendant and the roles played by the government agencies. He held, in essence, that the government agencies owed no legal duty to facilitate registration of a vehicle in respect of which a certificate of roadworthiness was not produced, that they were bound to do no more than play their ordained role in the processed laid down by the legislation (with the person in the applicant's position having the responsibility of attending to any matters necessary to make a vehicle roadworthy to the necessary standard) and that there was nothing to suggest that the government agencies had not played their role.

1. In relation to the Motor Traders Association, the judge noted that the claim against it was stated in these terms:

"$5000 for their intimidate and interference in my matters without offering any assistance to myself which in turn cost me a fortune. This includes $1000 reimbursement for me for the faulty brake service on my Ford Sedan motor vehicle which was ignored by the MTA in 2011".

1. His Honour said that there was nothing here or in other material before him that disclosed any cause of action known to the law. He then ordered that the proceedings be dismissed as against the Motor Traders Association.

1. The judge's decision was plainly correct in relation to both the Motor Traders Association and the State of New South Wales. No error is shown. The action brought by the plaintiff in the District Court against those parties was rightly regarded as doomed to fail. Any appeal from the District Court decision would be likewise doomed to fail. Therefore in my opinion the applicant's application for an extension of time in which to seek leave to appeal against the District Court judgment and orders of 12 June 2012 should be dismissed with the result that her application for leave to appeal is also effectively dismissed.

1. In relation to the notices of motion with which Justice Macfarlan has dealt, I agree with his reasons and with the orders he proposes.

1. MACFARLAN JA: I agree with what Barrett JA has said. The orders of the Court are these:

(1) Dismiss with costs the applications for extension of time and for leave to appeal, and the applicant's notices of motion filed on 13 August and 4 September 2012.

(2) Dismiss the first respondent's notice of motion filed on 15 August 2012 on the basis that the application against the first respondent for leave to appeal is dismissed and the orders sought in the motion are unnecessary.

(3) Order Ms Hetherington-Gregory to pay the first respondent's costs of its motion filed on 15 August 2012.

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Decision last updated: 18 February 2013