Young v Sprague

[2014] NSWCA 456

Court of Appeal

New South Wales

Case Title:

Young v Sprague

Medium Neutral Citation:

[2014] NSWCA 456

Hearing Date(s):

18 December 2014

Decision Date:

19 December 2014

Before:

Macfarlan JA; Sackville AJA

Decision:

1. Extend the time for filing the summons for leave to appeal until 1 October 2014.

2. Dismiss the summons.

3. Order the applicant (Mr Young) to pay the respondents' costs of the summons for leave to appeal and of the application for an extension of time to file the summons.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal - no reasonable prospects of success if leave granted

Legislation Cited:

District Court Act 1973 (NSW) s 127
Prevention of Cruelty to Animals Act 1979 (NSW) ss 24E, 24G

Cases Cited:

Be Financial Pty Ltd v Das [2012] NSWCA 164
Collier v Lancer (No 2) [2013] NSWCA 186
Young v Sprague (District Court (NSW), Norton SC DCJ, 10 March 2014, unrep)

Category:

Principal judgment

Parties:

Gary Young (Appellant)
Jean Sprague (First Respondent)
Anthony Croker (Second Respondent
The Royal Society for the Prevention of Cruelty to Animals (Third Respondent)
State of New South Wales (Fourth Respondent)

Representation

- Counsel:

Counsel:
In person (Appellant)
P Morris SC (First, Second and Third Respondent)
G Bateman (Fourth Respondent)

- Solicitors:

Solicitors:
Moray & Agnew (First, Second and Third Respondents)
Crown Solicitor (Fourth Respondent)

File Number(s):

2014/289163

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Norton SC DCJ

- Date of Decision: 

10 March 2014

- Court File Number(s):

11/254369

JUDGMENT

1. THE COURT: The appellant (as the Court will describe him) purported to appeal as of right from a decision of the District Court: Young v Sprague (District Court (NSW), Norton SC DCJ, 10 March 2014, unrep). In that judgment, the primary Judge gave judgment for the appellant against the third respondent (RSPCA) for $7,000. This award was made up of the sum of $2,000 as damages for trespass to chattels and the sum of $5,000 as aggravated damages for the feelings of hurt and distress experienced by the appellant as a consequence of the trespass.

2. The appellant filed a notice of appeal on 25 June 2014 that is 40 pages long and very difficult to follow. It is not clear from that document what orders the appellant seeks on the appeal. Nor are the grounds of appeal identified with any clarity. The written submissions of the fourth respondent (State) accurately describe the notice of appeal as "expressed in ... flamboyant and intemperate language".

3. The respondents filed motions objecting to the competency of the appeal, on the ground (among others) that the appellant requires leave to appeal from the decision of the District Court since he has not shown that there is any claim or matter in issue of the value of $100,000 or more: District Court Act 1973 (NSW) s 127(2)(c). On 1 October 2014, the appellant belatedly filed a summons seeking leave to appeal and an extension of time for the filing of the summons. The summons was accompanied by a draft notice of appeal considerably briefer than the original notice of appeal. The respondents oppose the grant of leave.

4. The Court as presently constituted decided that the most convenient course was to hear and determine the appellant's applications for leave to appeal and an extension of time for the filing of the summons, before a single judge dealt with the objections to the competency of the appeal. This judgment deals with the applications for leave to appeal and for an extension of time.

Background

1. The appellant occupied a horse breeding property located at Gundary near Goulburn (Property). The Property was about 100 acres in size and was owned by Lugen Pty Ltd (Lugen), a company of which the appellant was a director. Lugen used the Property in order to breed horses and the appellant was in charge of activities on the Property.

2. On 8 September 2010, two police officers and two officers of the RSPCA entered onto the Property in order to investigate claims that a horse had been neglected. The appellant sued the two officers of the RSPCA (the first and second respondents), the RSPCA itself and the State claiming damages for trespass to land and chattels.

3. The appellant also claimed damages against the State on the ground that the actions of the police officers in cutting a lock at the entrance to the Property breached a term of an oral agreement entered into between the appellant and his then partner, and the State. This agreement was alleged to have been concluded in the course of a mediation that disposed of other proceedings instituted by the appellant and his then partner against the State.

4. In a careful judgment extending over 55 pages, the primary Judge concluded that the entry of the police officers and the RSPCA inspectors onto the Property was authorised by ss 24E and 24G of the Prevention of Cruelty to Animals Act 1979 (NSW) (PCA Act). Thus her Honour found that the entry by the four officers onto the Property was lawful, even though they had to exercise force by breaking a lock to gain entry in the first place. Accordingly, the appellant's claim, insofar as it was based on trespass to land and trespass to chattels by the cutting of locks to gain entry, was dismissed.

5. The primary Judge also rejected a claim that one of the RSPCA inspectors had acted in a manner aimed at intimidating the appellant. In addition, her Honour found that the appellant and the State had not reached an agreement at the mediation, as alleged by the appellant, and accordingly the appellant's claim founded on breach of contract failed.

6. However, her Honour accepted that the actions of the first respondent in securing the entrance to the Property after the inspection had concluded constituted a trespass to chattels. Her Honour found that the appellant had requested the inspector to secure the gate, but that the method she used to secure it was inconsistent with the appellant's rights. The first respondent's actions meant that the appellant believed that he was unable to leave the Property without obtaining a special tool to cut the tie. Her Honour considered that damages of $2,000 should be awarded for the trespass to chattels. Her Honour also awarded the appellant $5,000 for aggravated damages for the hurt and distress he had experienced.

7. Some features of the proceedings at first instance should be noted. First, the primary Judge had the benefit of extensive DVD footage of events that took place on the day. The footage recorded the entry of the inspectors and police officers onto the Property, their dealings with the appellant and the inspection undertaken of horses on the Property. Secondly, the DVD evidence was important in enabling the primary Judge to make findings of fact on issues that were the subject of conflicting evidence. Thirdly, partly on the basis of the DVD evidence, the primary Judge accepted the evidence given by or on behalf of the respondents and found that much of the appellant's evidence was unreliable.

8. As has been noted, the appellant belatedly filed a summons seeking leave to appeal and an order extending the time for filing of the summons. The summons and the draft notice of appeal specify a number of grounds on which the appellant wishes to rely. In substance, the appellant asserts that the first respondent and a Senior Constable who entered onto the Property gave "deliberate false testimony under oath" and acted with malice towards him. He further contends that her Honour's finding rejecting the claim based on breach of contract was against the weight of evidence.

Leave to Appeal Should be Refused

1. The principles governing the grant of leave to appeal were recently restated by the Court in Collier v Lancer (No 2) [2013] NSWCA 186:

   "[7] While there are no exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170), leave should be granted only where there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564), such as where there is an error of principle which, if uncorrected, will result in substantial injustice (Minogue v Williams (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Niemann v Electronic Industries Ltd [1978] VR 431; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401).

   [8] Where there is no question of principle (and particularly where there is only a small amount in dispute), leave to appeal will usually be refused (Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56; Dunn v Ross Lamb Motors [1978] 1 NSWLR 26). As Bathurst CJ said in The Age Company Ltd v Liu [2013] NSWCA 26 (at [13]), with the agreement of Beazley and McColl JJA, 'Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable'."

   See also Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39] (Basten JA, Tobias AJA agreeing).

2. The appellant's lengthy written submissions filed in advance of the hearing, as the appellant himself accepted, are not helpful in identifying any reasonably arguable ground of appeal. At the hearing the appellant was given leave to file a further lengthy set of submissions (48 single spaced pages) in support of his application. These to a large extent consist of assertions that various witnesses called by the respondents either committed perjury or gave evidence inconsistent with the video evidence. In particular it is said that the photographic evidence of the state of the locks on the gate falsified the evidence of Inspector Sprague as to how the locks were secured. The supplementary written submissions include substantial extracts from the transcript of the proceedings in the District Court.

3. Nothing advanced in the appellant's written submissions or in his oral argument demonstrates that he has any reasonable prospects of success on an appeal, should leave be granted. The video evidence on which the appellant relied, at best, suggests that Inspector Sprague may have made a mistake as to an aspect of her evidence concerning the state of the locks when she left the Property. It provides no basis for overturning findings made by the primary Judge, essentially on the basis of her assessment of credit and on the DVD evidence. The other issues raised by the appellant do not make out a reasonably arguable case that the findings of fact underpinning the primary case that judgment were wrong or that her Honour erred in law in construing the relevant legislation.

4. In our view, the primary Judge gave clear and persuasive reasons for making the findings she did and there is no basis for this Court concluding (as the appellant contends) that the principal witnesses for the respondents perjured themselves. Nor has any arguable basis been shown for overturning the primary Judge's conclusion that the entry onto the Property by the inspectors and police officers was authorised by the PCA Act and therefore was lawful. Insofar as the appellant seeks a greater award of damages in respect of the trespass to chattels, he has also failed to identify any arguable grounds for increasing the damages award. Indeed, on one view, the award of aggravated damages to the appellant was generous.

5. In addition, this case involves no issue of general principle and the amount at issue, on the material before the Court, is small. The denial of leave will not result in substantial injustice to the appellant

6. The appellant should be granted an extension of time in which to file and serve the summons for leave to appeal. Whilst the extension should be granted, the summons should be dismissed. The appellant should pay the respondents' costs.

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