Sarah Lin v SRA of NSW

[2004] NSWSC 719

CITATION:	Sarah Lin v SRA of NSW [2004] NSWSC 719
HEARING DATE(S):	3 August 2004
JUDGMENT DATE:	12 August 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Master Harrison
DECISION:	(1) The plaintiff's application for leave to appeal and notice of motion are dismissed; (2) The summons filed 31 March 2004 is dismissed; (3) The plaintiff's notice of motion filed 19 July 2004 is dismissed; (4) The defendant's notice of motion filed 31 May 2004 is dismissed; (5) The plaintiff is to pay the defendant's costs as agreed or assessed.
CATCHWORDS:	Leave to appeal decision of LCM - disposal of uncollected goods - s 8 Uncollected Goods Act 1995 (NSW)
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act 2001 (NSW) - s 52(1)(b) Supreme Court Rules 1970 (NSW) - Part 13 r 5(1)(a) Trades Practices Act 1974 (Cth) Uncollected Goods Act 1995 (NSW) - s 8
CASES CITED:	General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
PARTIES :	Sarah Lin (Plaintiff) State Rail Authority of New South Wales (Defendant)
FILE NUMBER(S):	SC 10906/2004
COUNSEL:	Mr G A Sirtes (Defendant)
SOLICITORS:	Ms S Lin (Plaintiff in person) Mr M Sulivan, Henry Davis York (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	20289593
LOWER COURT JUDICIAL OFFICER :	Magistrate Madgwick

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 12 AUGUST 2004

10906/2004 - SARAH LIN v STATE RAIL AUTHORITY
NEW SOUTH WALES

JUDGMENT (Leave to appeal decision of LCM -
disposal of uncollected goods –
s 8 Uncollected Goods Act 1995 (NSW))

1 MASTER: By summons filed 31 March 2004 the plaintiff seeks: firstly, to appeal the decision of Magistrate Madgwick made on 5 February 2004; secondly, an order that the defendant pay a penalty of $50,000.00; and thirdly, an order that the defendant compensate the plaintiff in an amount of $150,000.00 for the value of goods and equipment of the bookstall, the suffering the plaintiff endured and the time and resources the plaintiff spent on the proceedings.

2 Sarah Lin, the plaintiff, ran a bookstall on platform No 1 at Waverton railway station. She and the landlord/defendant, the State Rail Authority of New South Wales (SRA) entered into a lease, which stipulated a month-to-month tenancy. On 26 March 2003 the SRA gave notice to Ms Lin that the lease was to be terminated and that she was to vacate the premises by 9 April 2003. Ms Lin vacated the premises but left behind goods such as a fridge and perishable foods. SRA applied to the Local Court, Downing Centre for an order authorising it as bailee to dispose of the uncollected goods under s 8 of the Uncollected Goods Act 1995 (NSW) (the Act).

3 The Local Court proceedings were adjourned on a number of occasions because Ms Lin did not appear. On 5 February 2004 the matter was listed for hearing and Ms Lin did not appear. The Magistrate addressed Ms Lin’s non-appearance and recounted that on 22 December 2003 Ms Lin provided a medical certificate in relation to the appearance on 8 December 2003. However on 22 December 2003, the next court appearance, there was no communication from Ms Lin. The Magistrate was persuaded that a letter from the SRA dated 23 December 2003 informed Ms Lin that the matter had been fixed for hearing. On 5 February 2004, despite the letter referring to 5 February 2003, the Magistrate decided that anybody would have known that it was meant to be 5 February 2004. After reading the affidavits the Magistrate granted the application to dispose of the uncollected goods and awarded SRA $3,000.00 for costs. The certificate of conviction recorded that the Magistrate made an order under s 8 of the Act. The certificate should have referred to s 9 and it was the SRA’s application to the court that was made under s 8.

4 The plaintiff has sought leave to appeal the Magistrate’s decision. If an appeal involves a question of mixed fact and law, leave has to be obtained pursuant to s 52(1)(b) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). For the court to grant leave, the plaintiff needs to demonstrate that a substantial injustice would result if leave were refused. Before the court were two motions, one put by each party for determination. The defendant seeks an order pursuant to Part 13 r 5(1)(a) and/or (b) of the Supreme Court Rules 1970 (NSW) (SCR) that the proceedings be dismissed and that the plaintiff pay the defendant’s costs of the motion and/or the proceedings. The plaintiff seeks an order that the defendant pay the plaintiff the costs and damages up to date, such costs to be assessed by the court (motion 19 July 2001). The plaintiff relied on her affidavit of 2 August 2004. The defendant relied on the affidavit of Michael Kenneth Sullivan sworn 28 May 2004.

5 Relevantly Part 13 r 5 of the SCR provides that the Court may dismiss the proceedings in three situations. These include: firstly, where no reasonable cause of action is disclosed; secondly, where the proceedings are frivolous or vexatious and thirdly, where the proceedings are an abuse of the process of the Court. In this summary judgment application, the onus on the defendant to have proceedings dismissed before trial is high because in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Barwick CJ stated:

“Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

6 Barwick CJ also said:

“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense.”

7 Upon the hearing of these applications, the plaintiff appeared unrepresented. She was articulate and essentially confined her application for leave to appeal to two main issues. They are firstly that there is an error on the face of the record because the certificate of conviction mistakenly refers to s 8 of the Act; and secondly that because there was no evidence to suggest a relationship between the bailor and the bailee, the Local Court did not have jurisdiction to hear the dispute. Ms Lin also referred to it being unreasonable for the SRA to require her to remove all the goods at once and stated that the Local Court proceedings should not have remained on foot while there were concurrent proceedings in the Federal Court.

8 The reference to s 8 of the Act on the certificate should have been a reference to s 9 of the Act. The Magistrate dealt with an application made by the SRA under s 8 of the Act and made an order under s 9 of the Act. The Magistrate did not make an error of law. It is the certificate issued after judgment was given that refers to the wrong section of the Act. The certificate may need to be amended. Bailment is defined in s 3 of the Act and refers to “involuntary bailment” which was the situation that SRA found itself in. Section 3 of the Act gave the SRA the standing to bring these proceedings. The Federal Court proceedings were dismissed prior to the Local Court matter being heard. From what I understand, there is an appeal lodged. The Federal Court proceedings centre upon a claim under the Trade Practices Act 1974 (Cth).

9 In relation to the claim that it was unreasonable to require removal of all of goods at once, Ms Lin did not attend the hearing at the Local Court to place this submission before the Magistrate for consideration. Ms Lin has not explained why she did not attend the hearing and as the Magistrate did not consider it, Ms Lin cannot raise this issue on appeal.

10 It is my view that Ms Lin’s application for leave to appeal is hopeless and should be dismissed.. The application for leave to appeal cannot succeed, as there are no reasonable grounds of appeal. The plaintiff’s application for leave to appeal is dismissed. The plaintiff’s summons is dismissed. The plaintiff's notice of motion is dismissed. The defendant’s notice of motion is dismissed.

11 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

Orders

(1) The plaintiff’s application for leave to appeal and notice of motion are dismissed.

(2) The summons filed 31 March 2004 is dismissed.

(3) The plaintiff’s notice of motion filed 19 July 2004 is dismissed.

(4) The defendant’s notice of motion filed 31 May 2004 is dismissed.

(5) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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Last Modified: 08/16/2004