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O'Meara v Adams (No 2)

O'Meara v Adams (No 2)

Case [2021] NSWSC 1167 15 September 2021

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: O’Meara v Adams (No 2) [2021] NSWSC 1167
Hearing dates: 4 November 2020
Date of orders: 15 September 2021
Decision date: 15 September 2021
Jurisdiction: Common Law
Before: Campbell J
Decision:
The appeal is dismissed

Catchwords:
APPEALS – From Local Court – Appeal as of right on questions of law – Appeal by leave on mixed question of fact and law – Leave not granted – Procedural fairness – Apprehended bias – No basis for apprehended bias – Erroneous agreement on applicable law between parties does not bind decision-maker when decision-maker’s view is drawn to parties – Magistrate acted appropriately in discharge of duty – No error
DAMAGES – Inclusion of GST in damages for claim in conversion – No error

Legislation Cited:
Local Court Act 2007 (NSW) ss 39, 40
Australian Consumer Law s 18

Cases Cited:
Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199
Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Bennett v Goodwin [2005] NSWSC 930
BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21
Gaba Formwork Contractors Pty Ltd v Turner Corporation Limited (1993) 32 NSWLR 175
Grant v YYH Holdings [2012] NSWCA 360
Ireland v WG Riverview Pty Ltd (2019) 101 NSWLR 658; [2019] NSWCA 307
Life Insurance Co of Australia Limited v Phillips (1925) 36 CLR 60
O’Meara v Adams [2020] NSWSC 975
Oakley v Lyster [1931] 1 KB 148
Pantorno v The Queen (1989) 166 CLR 466
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR [9]
Sinclair v Haines [2000] NSWSC 642

Texts Cited:
John G Fleming, The Law of Torts (Law Book Company, 9th ed, 1988)

Category: Principal judgment
Parties: Matthew Patrick O’Meara (Plaintiff)
Jane Adams (Defendant)
Representation:
Counsel:
Matthew Patrick O’Meara (In person)
Mr J. Baird (Defendant)
Solicitors:
Fishburn Watson & O’Brien (Defendant)

File Number(s): 2020/75550
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

General Division

Citation:

N/A

Date of Decision:

12 December 2019

Before:

Magistrate Gibson

File Number(s):

2018/00234014

Judgment

The plaintiff, Mr O’Meara, the defendant in the court below, appeals, and seeks leave to appeal, from a judgment given in the Local Court at Coffs Harbour (his Honour Magistrate Gibson) on 12 December 2019 in the sum of $11,369 with costs assessed in the sum of $2,842.25 in favour of the plaintiff below, the defendant in this Court, Ms Adams.
By Statement of Claim filed in the Local Court on 30 July 2018, Ms Adams sued Mr O’Meara in detinue for the return of certain cattle and, in the alternative, for their value assessed in the sum of $11,869. There was no claim for consequential loss. At…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Meara v Adams (No 2)

Details

AGLC: O'Meara v Adams (No 2) [2021] NSWSC 1167
Case: [2021] NSWSC 1167
Decision Date: 15 September 2021

CaseChat Overview and Summary

In the appeal, O'Meara appealed against a decision made by Adams, arguing that the decision was wrong on a point of law. The appeal originated from the Local Court and was heard in the Supreme Court. The core dispute was whether damages awarded in a conversion case should include goods and services tax (GST).

The primary legal issue before the court was whether the magistrate had erred in including GST in the damages awarded. A secondary issue was whether there was any basis for the appellant's claim of apprehended bias against the magistrate. The court had to consider whether the magistrate acted appropriately in discharging their duty without any bias or error in their application of the law.

The court found that there was no basis for the appellant's claim of apprehended bias, as the magistrate had not shown any partiality or unfairness. The court further held that the magistrate's agreement with the parties on the applicable law did not bind them when the decision-maker's view was drawn to the parties. The court concluded that the magistrate had correctly included GST in the damages awarded, as it was a matter within the magistrate's discretion. Therefore, the appeal was dismissed, and the decision of the Local Court was upheld.

Orders