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Woolworths v Waverley Council

Woolworths v Waverley Council

Case [1999] NSWSC 308 20 April 1999

Jurisdiction

Unconscionable Conduct

Adverse Possession

Administrative Law

Property Law

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Reported Decision: 103 LGERA 227

New South Wales

Supreme Court

CITATION: Woolworths v Waverley Council [1999] NSWSC 308

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 10631 of 1998

HEARING DATE(S): 04/06/98

JUDGMENT DATE:
20 April 1999

PARTIES :

Woolworths Limited (plaintiff)
Waverley Council (defendant 1)
Judith Mary Fleming (defendant 2)

JUDGMENT OF: Hidden J at 1

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Magistrate Judith Mary Fleming

COUNSEL :
B. Donovan QC with P. Lakatos (plaintiff)
I. Hemmings (defendant 1)

SOLICITORS: J. P. Gould Solicitors (plaintiff)
M. E. McMahon, Waverly Council Solicitor (defendant 1)
I. V. Knight, Crown Solicitor (defendant 2)

CATCHWORDS: Impounding Act, 1993 - appeal to Local Court under s38(1) - whether hearing de novo; time limit under s39(a) - estoppel; power of Local Court to order costs; lawfulness of impounding - notification to owner - whether article "abandoned" or "left unattended".

ACTS CITED: Impounding Act 1993 (NSW)
Interpretation Act 1987 (NSW)

CASES CITED: Builders Licensing Board v Sperway Constructions (1976) 135 CLR 616
Ex parte Aust Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283
Goldsmith v Victims Compensation Tribunal (1993) 30 NSWLR 410
Commonwealth v Verwayen (1990) 170 CLR 394
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Londish v Knox Grammar School (1997) 97 LGERA 1
Hibbert v McKiernan [1948] 2 KB 142
Parramatta City Council v Pestell (1972) 128 CLR 305
Grassby v The Queen (1989) 168 CLR 1
Commissioner of Police v Bennett (1991) 9 Petty Sessions Review 4311
DPP v Boykin (Wood J, unreported 21 June 1994)
Cole v Director General of Youth & Community Services (1987) 7 NSWLR 541
Saraswati v The Queen (1990-91) 172 CLR 1.

DECISION: Magistrate's order set aside; matter remitted to Local Court.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J
Tuesday 20 April 1999
10631 of 1998 Woolworths Limited v Waverley Council & Anor
Reasons for judgment
1 Between 18 December 1996 and 20 June 1997 officers of the first defendant, Waverley Council, impounded ten shopping trolleys found in various locations in the municipality. The trolleys were the property of the plaintiff, Woolworths Limited and had come from its Bondi Junction store. In respect of each trolley the plaintiff exercised its right of appeal to a Local Court under the Impounding Act 1993. The appeals were heard at Waverley Local Court by the second defendant, a magistrate, who dismissed them.
2 The plaintiff seeks relief in this Court, both directly against the first defendant and of a supervisory nature arising from the disposition of the appeals. Before examining more closely the facts and the nature of the relief sought, it is necessary to set out some relevant provisions of the Impounding Act.
3 Among the objects of the Act, set out in s3, is the following:
(a) to empower authorised persons to impound and deal with … articles in…

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 Woolworths v Waverley Council

Details

AGLC: Woolworths v Waverley Council [1999] NSWSC 308
Case: [1999] NSWSC 308
Decision Date: 20 April 1999

CaseChat Overview and Summary

The parties involved in the case were Woolworths, the appellant, and Waverley Council, the respondent. The dispute centered around the legality of the impounding of a vehicle by Waverley Council under the Impounding Act, 1993. Woolworths contested the decision and appealed to the Local Court. The court was required to determine several key legal issues, including whether the Local Court's hearing was de novo, the applicability of time limits under section 39(a) of the Act, the applicability of estoppel in this context, the power of the Local Court to order costs, and the criteria for determining whether an article was "abandoned" or "left unattended" under the Act. The court considered these issues in the context of the specific facts of the case.

In its reasoning, the court determined that the Local Court's hearing was not de novo, meaning it was not a fresh hearing but rather a review of the original decision. The court found that the time limit under section 39(a) of the Act did not apply due to the circumstances of the case. Regarding estoppel, the court held that it was not applicable in this context. The court also concluded that it had the power to order costs in such matters. Finally, the court examined the criteria for determining whether an article was "abandoned" or "left unattended" and found that the vehicle in question did not meet these criteria.

The court's decision was that the impounding of Woolworths' vehicle was unlawful due to inadequate notification to the owner and the absence of evidence that the vehicle was "abandoned" or "left unattended." The court ordered the return of the vehicle to Woolworths and directed Waverley Council to pay costs associated with the appeal. This outcome provided clarity on the application of the Impounding Act, 1993, and reinforced the importance of proper notification and adherence to the criteria for impounding vehicles.

Orders