Taing v Gartmore Smash Repairs Pty Limited

[2016] NSWSC 1439

Supreme Court

New South Wales

Medium Neutral Citation:	Taing v Gartmore Smash Repairs Pty Limited [2016] NSWSC 1439
Hearing dates:	22 September 2016
Date of orders:	22 September 2016
Decision date:	22 September 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	1. Proceedings dismissed. 2. The Plaintiff to pay the defendants’ costs of the proceedings.
Catchwords:	PROCEDURE – notice of motion – application to dismiss proceedings – no reasonable cause of action disclosed – no question of principle
Legislation Cited:	Local Court Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Seam Taing (Plaintiff) Gartmore Smash Repairs Pty Ltd (Defendant)
Representation:	Counsel: No Appearance (Plaintiff) Mr A Luong, solicitor (Defendant)   Solicitors: The Law Shoppe (Defendant)
File Number(s):	2016/152688

EX TEMPORE Judgment

1. HIS HONOUR: This is an application to dismiss proceedings pursuant to Uniform Civil Procedure Rule 13.4 on the basis that the proceedings are frivolous or vexatious or that no reasonable cause of action is disclosed or the proceedings are an abuse of process. For the reasons I will indicate, I am satisfied that no reasonable cause of action is disclosed. I will grant the order.

2. The proceedings are an appeal pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) from a judgment of a magistrate given on 10 September 2015. The proceedings in the Local Court had a somewhat tortured history which it is only briefly necessary to describe.

3. In April 2013, the plaintiff in the Local Court, who is also the plaintiff in this Court, Mr Seam Taing, filed an Amended Statement of Claim, which at some stage was understood as asserting that he had a contract with the defendant, Gartmore Smash Repairs Pty Limited (“Gartmore”), for Gartmore to repair certain cars that had been written off to roadworthy standard, which they failed to do.

4. Subsequent versions of the Statement of Claim appear to introduce the assertion that the law changed from 31 January 2013, such that vehicles previously written off could not be registered. Thus, part of the plaintiff’s claim appears to have been that Gartmore did not effect the repair work before that change to allow registration to occur.

5. The proceedings lurched on for over two years with the principal issue appearing to be the form in which the proceedings were pleaded. In May 2014, a version of the Statement of Claim was struck out but the plaintiff was able to reinstate the proceedings and filed a further pleading.

6. At some point, Mr Taing was ordered to provide some evidentiary material in support of his case. When he failed to do so, Gartmore moved to strike out the claim. Their motion seeking that was apparently returnable at a call over on 4 June 2015 in the Local Court, at which the plaintiff did not attend. The Motion was stood over to 18 June 2015. On that date it seems that a Registrar struck out the proceedings on the basis of Mr Taing’s non‑compliance with an order for the service of evidence. It appears that Mr Taing was not in attendance on that day.

7. Mr Taing filed an application to reinstate his claim. That was heard on 23 July 2015. It was refused. As I understand it, that application was heard by a Registrar and Mr Taing was present. Mr Taing then filed a further Notice of Motion seeking to reinstate his proceedings. That was heard on 10 September 2015 by a Magistrate. Mr Taing appeared. No reasons are available but the affidavit material suggests that the Magistrate formed the view that he did not have power to hear an appeal from a decision of the Registrar striking out the proceedings.

8. On 18 May 2016, Mr Taing filed a document entitled, “Summons commencing an appeal; summons seeking leave to appeal” in this Court. Clearly, he was well out of time. The document is something of a ramble but it identifies the judgment appealed as the order of the Magistrate on 10 September 2015.

9. Subsection 39(1)of the Local Court Act conferred on Mr Taing a right of appeal from an order of the Local Court on a question of law and he was otherwise able to seek leave of this Court to appeal on a mixed question of fact and law (s 40(1)).

10. The grounds supporting the appeal, as stated in the summons, refer to him having developed a mental illness in 1990, refer to him being absent at the Court hearing on 18 June 2015, to which I referred earlier, state that he was self-represented in the Local Court and he was unable to speak, read or write English. His summons suggests he has some command of written English.

11. Those are the only grounds stated. None of them seek to identify any legal error on the part of the Magistrate who heard the matter on 10 September 2015, and perhaps more germanely, none of them identify any legal error on the part of the Local Court in refusing to reinstate his claim on 23 July 2015.

12. On 8 September 2016, Gartmore filed the notice of motion which is before the Court today. The motion was made returnable today at 9 o’clock before the Registrar. However, the proceedings were otherwise listed before a Registrar on 9 September 2016. The Registrar’s record records that Mr Taing appeared, as did counsel for Gartmore. The Registrar’s record records that the proceedings were stood over to today, “Re Gartmore’s motion and for matter to be referred to duty judge.” The clear inference from the record is that on that day it was understood by all that the matter would be listed today for the hearing of Gartmore’s motion.

13. Further, at the hearing of this motion, the solicitor for Gartmore gave evidence recounting the receipt of an email from counsel indicating that Mr Taing was served with Gartmore’s motion on 9 September 2016 and the supporting affidavit.

14. Mr Taing has not appeared today, either in the Registrar’s list or in this list. The evidence of Gartmore’s solicitor is that a number of attempts have been made to contact him on his mobile phone but he has not responded. I am satisfied that Mr Taing has had ample opportunity to appear today and resist the motion if that was the course he wished to adopt.

15. Further, in the circumstances I am satisfied that no reasonable cause of action is disclosed by the summons. As stated, none of the appeal grounds identify any question of law or error of law arising in relation to either the decision of the Local Court of 10 September 2015 or 23 July 2015. None of them as framed appear to seek leave to raise some mixed question of fact and law.

16. At its absolute highest, the grounds appear to be directed towards something that could amount to a breach of natural justice, but the law has not developed to the point that a plaintiff who initiates proceedings and represents themselves, and can write English but has some difficulty in understanding spoken English, is thereby denied the right to be heard.

17. I am satisfied that no reasonable cause of action is disclosed.

18. Accordingly, the proceedings are dismissed. I will order the plaintiff to pay the defendant’s costs.

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Decision last updated: 14 October 2016