Rosa v Manilla Shire Council

[2002] HCATrans 361

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S288 of 2001

B e t w e e n -

DANICA DANIELA ROSA

Applicant

and

MANILLA SHIRE COUNCIL

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2002, AT 2.13 PM

Copyright in the High Court of Australia

MS D.D. ROSA appeared in person.

MR T.J. KHAN:   If it pleases the Court, I appear for the respondent.  (instructed by Egan Murphy Solicitors)

GUMMOW J:   Yes, thank you.

MS ROSA:   Danica Rosa is my name.  Your Honour, I am from Nathalia in the State of Victoria and I work in the indigenous hostel for elderly people and I come to ask this Court seeking leave for special leave to appeal the decision of Priestley JA as changed around which my decision was 16 November 2000.

GUMMOW J:   Yes, now we have read the written submissions.  You appreciate that the oral submissions would be within 20 minutes, you understand that?

MS ROSA:   Twenty minutes, yes, your Honour.

GUMMOW J:   Yes, please go ahead.

MS ROSA:   Your Honours, I sought leave to appeal the court order on page 76 of my appeal books of the Supreme Court of New South Wales which was sent to me on 6 November 2000 and they had five orders on this court order.  After three months the Supreme Court of New South Wales informed me that there was a mistake, that there was another, the sixth order which was omitted from the original court order.  So the sixth one, the sixth order, was that I did not have a case against the respondent and I had to pay their cost.  So I appeal at this on Court of Appeal and I was denied the leave in the Court of Appeal.  This ‑ ‑ ‑

GUMMOW J:   The order made by the Supreme Court at first instance by Justice Hulme ‑ ‑ ‑

MS ROSA:   Yes, correct, on 76 page on my application books.

GUMMOW J:   Where do we find that?  Page 75, is it?

MS ROSA:   Yes, 75, your Honour.

GUMMOW J:   Yes, thank you.  It was that each party pay their own costs.

MS ROSA:   Yes, your Honour. But after three months of this order, they inform me that there was another order which was remitted from this order and that the judge, Justice Hulme, said I had to pay the second defendant and I did have no case, not at all against the second defendant.

GUMMOW J:   I am not sure I understand this.  It is only costs, is it not?

MS ROSA:   No, your Honour, on page 90 on my application book Justice Hulme said in order (2):

I note that the plaintiff’s grounds of appeal do not include any which involve the second defendant but it has been joined.  I order the plaintiff to pay the second defendant’s costs of these proceedings.

CALLINAN J:   Yes, I see.

MS ROSA:   Therefore, your Honours, I appealed to this Court of Appeal the whole omitted order as a whole, not just the cost order, because I believe, your Honours, I have a case against the respondent.  I believe I have ‑ ‑ ‑

GUMMOW J:   Just a minute.  Now, the order made by Justice Hulme appears on page 24. 

MS ROSA:   Yes, your Honour.  That is the one that I was corrected by the respondent.

GUMMOW J:   Yes, corrected by the court, and it reflects his Honour’s reasons.  Now, your application for leave to appeal, is that page 30, is it?

CALLINAN J:   Page 43, one of them, I think.  There may be two.

GUMMOW J:   Page 43.  Yes, thank you, go ahead.  Yes, the Court of Appeal dealt with this at page 45.  Justice Priestley dealt with this at page 45, what you have been explaining to us, whether the court:

should grant leave to appeal against the costs order made in favour of the second defendant by Hulme J.

That is about line 17.

MS ROSA:   Yes, that is correct, your Honour, so I appealing this decision and I seeking leave or special leave to appeal this decision what the Court of Appeal denied me the appeal.

GUMMOW J:   Yes, this Court does not ordinarily get involved in questions of costs in decisions of lower courts, particularly where the Court of Appeal itself refused leave to itself get into the question of costs of proceedings before Justice Hulme.

MS ROSA:   Your Honour, in the page…..in my summary of argument I made it clear what the argument that the Court of Appeal did not enter, my argument on the judgment or in the original transcript.  Therefore, I was arguing there and I did not appeal only the costs, but the whole order which was that I did not have a case against the second defendant.  This was that.  Therefore, I was arguing there - under the constitutional law I was arguing that they give me right factual advice in concern of my business and…..they admitted on public hearing in Manilla and the public meetings under the Local Government Act, they admitted that they give me a correct answer according to 78(2) of the Local Government Act 1993 New South Wales.

Therefore, at the court of law they denied that they give me this advice on statutory declaration that the…..took place. By doing this they denied the owner did not register the lease and they help it, they did not need the registered lease from by business concern. I believe, your Honours, that under constitutional law section 92 we have a right…..but I been in Victoria for 15 years employed in food business and I had a right to do the business in New South Wales.

GUMMOW J:   No.

MS ROSA:   I did not have no right?

GUMMOW J:   Not under section 92 of the Constitution. You can put that out of your mind.

MS ROSA:   Okay.  Well, also, your Honours, that under 78(2) Local Government Act they needed a consent for the renovation of the restaurant of the nature of the place there and they said that I needed a registered lease which was on page 60 of my application book, please, your Honour, and I read it to your Honour, the last paragraph:

Mrs Rosa was then advised that production of the registered lease confirming the owner’s consent to the lodgement of the application would be sufficient to meet Council’s requirement (i.e. the requirement found in Section 78(2) of the Local Government Act 1993).

Therefore, your Honours, they give me a correct - I was looking - I pay all my expenses to get the registered lease.  One lawyer and the other lawyer, I paid all expenses on their advice.  Because the owner went overseas, your Honours, they did not register the lease.  I was not able to pay to get the registered lease to do my business.  So, in other words, I paid dead rent for the empty shops.  When I sued the owner for non-registration, they responded - they not come in my aid to say that I needed registered lease.  Instead, they denied on statutory declaration.  One of them suggested on statutory declaration that I never been in their office.  In other words, the magistrate in Tamworth call me be “unconvincing witness”.  When I said that I needed registered lease from my business, they call me “unconvincing witness” and this mean that I did not tell the truth.  For that reason I believe that I have a case against the respondent, your Honours.  If it is not under the constitutional law but in the name of justice and of the section of Judiciary Act 35(1)(a), under section 35A(b), I believe I have a right to proceed against that respondent and to ‑ ‑ ‑

GUMMOW J:   What do you say about Justice Hulme’s judgment, if you could look at page 19 of your book.  Do you have page 19, line 31?

MS ROSA:   Yes, your Honour.

GUMMOW J:   It says:

even if the plaintiff’s appeal were allowed and the matter remitted to the Magistrate . . . the result would be that the plaintiff would succeed against the first defendant but only in an amount of nominal damages and, as I have indicated, the result as between the plaintiff and the second defendant would remain the same.

MS ROSA:   Okay.  Well, he also say, your Honour, there on the page, this paragraph his Honour said:

It seems clear that there is a substantial chance that the defendants will not recover their costs from the plaintiff, even if orders are made in their favour –

Therefore, the applicant, myself, your Honours, did not sought leave to appeal just on the court and on page 58, your Honour, application book 19, Justice Hulme said:

as would have satisfied one of the requirements of the council which she asserted but was not found by the Magistrate.

For that reason the same magistrate was find in application book 18 on page 58 by Justice Hulme as “wrong as a matter of law”.  That is for that reason the applicants, myself, believe they have a ground against the respondent who was negligent in his duty of care to myself who was a next door neighbour to themselves at that time, your Honours.

GUMMOW J:   Yes?

MS ROSA:   The primary case, this is the Shaddock v Parramatta City Council, your Honours, when Mr Shaddock on voluntary basis approached the council in concern of his business.  I was obligated by statutory law, your Honours, to approach him.  Like I was in Victoria which I obeyed the law and by statutory law in New South Wales Food Act and Public Health Act I was obligated to ask him for their requirements and I believe I was entitled to have correct answer.  Therefore, they told me that I needed the registered lease and the reason why they denied that that one of them say I never been there, it will be miscarriage of natural justice.  I believe they owe me duty of care, your Honour, which I suffered too much for myself and my family and I paid dead rent and I was not able to trade.  I am professional cook and I not able to trade now, your Honours.  This buildings was us leased…..is already contract done by under the Retail Leases Act and under the Conveyancing Act and the Real Estate Act.  Leases was contract made but was because in the main keywords in the lease was “partition of the wall” which means that I going to make from pizza takeaway and make pizza restaurant and obviously this contract was needed, I…..the council, so I approached it and I was looking for their help to what I have to do and obviously I did not have it.

Also I have a correct answer which they admitted at public hearing, your Honours, on 13 March 2000, on public hearing they admitted that they give me correct answer by Mr Ron Van Katwyk but the same advice they denied on statutory declaration at the court below.

The Food Act, if I was doing myself the restaurant, your Honours, and without their permission or their consent, under the Food Act section 52 and the Public Health Act 1981 section 81 of New South Wales, they would have a right to close my restaurant, without asking them permission. For that reason I approached it and asked it, but I do not see any reason why they denied their own written requirements, your Honours. On this basis, I was thrown out from their town, which was Manilla near Tamworth. They throw me out. So that decision, I believe, was incorrect that they did not say the truth. This is under section 376(1) Local Government Act, your Honours.  It is conduct of the council, your Honours.  The councillors and the staff have to be honest and fair.

GUMMOW J:   Now, you see the orange light is on; you only have a few more minutes.  The real question ‑ ‑ ‑

MS ROSA:   Mostly it is this because of ‑ ‑ ‑

GUMMOW J:   If you do not want to hear what I say, do not.  What I am saying to you is perhaps you should use your remaining time in explaining to us not the underlying dispute but where it was that the Court of Appeal went wrong in principle in granting you the extension time but nevertheless refusing leave to appeal.  We do not retry what happened or should have happened before Justice Hulme; we cannot do that.

MS ROSA:   The Court of Appeal was only wrong because of the injustice, your Honour, because they did not enter my argument.  They did not enter in the…..they did not enter in the judgment, your Honours, where I was arguing exactly the same way that what I said here.  They just said that I ask them just for the cost, ask them leave to appeal on the cost, but that was not Justice Hulme.  I ask them the whole omitted order and I put it clear to them in other copies and apologise if I could not be able to speak proper English to explain myself better.  They understood but they said that my application was only on the costs, your Honours.

GUMMOW J:   Yes, what else were you trying to argue?  You were trying to ‑ ‑ ‑

MS ROSA:   I was going to argue, your Honour, that the Australia Act section 11, making this Court the highest court of appeal and I have no other place where I can go.

GUMMOW J:   No.  You were trying to argue that Justice Hulme was wrong, were you not, in the Court of Appeal?

MS ROSA:   Your Honour, I am not arguing that Justice Hulme was wrong.

GUMMOW J:   You have to.

MS ROSA:   It was wrong that he admitted the order.  It was that on the page 76, your Honour, it was clear that Order 6 was not admitted.  They said that it was not admitted from the slip rules or clerical mistakes.  Obviously, Supreme Court is not on this trial, we cannot go against the Supreme Court when they make mistakes.  They inform me three months after that I had another order which I was out of appeal.  It is not.  It is only 28 days.

GUMMOW J:   That is a reason for giving you extra time.  It is not a reason for giving you the ultimate result that you wanted.  Do you follow me?  They gave you the extension of time in the Court of Appeal.

MS ROSA:   If they did not give me extension of time, it will be okay, then, after informing me after three months that there was another order.

GUMMOW J:   Very well.  Your time is up, I am afraid.

MS ROSA:   Obviously, all right, thank you, your Honours.

GUMMOW J:   We do not need to call on you, Mr Khan.

We have considered the written submissions and what has been said to us this afternoon.  However, we have come to the view that there was no error by the New South Wales Court of Appeal in the application of principle to the matter that was before it.  An appeal to this Court would enjoy no prospect of success.  Accordingly, special leave is refused with costs.

The Court will adjourn until 2.00 pm on Tuesday, 17 September at Sydney.

AT 2.36 PM THE MATTER WAS CONCLUDED