Supreme Court New South Wales Medium Neutral Citation: O'Meara v Adams (No 2) [2021] NSWSC 1167 Hearing dates: 4 November 2020 Date of orders: 15 September 2021 Decision date: 15 September 2021 Jurisdiction: Common Law Before: Campbell J Decision: The appeal is dismissed Catchwords: APPEALS – From Local Court – Appeal as of right on questions of law – Appeal by leave on mixed question of fact and law – Leave not granted – Procedural fairness – Apprehended bias – No basis for apprehended bias – Erroneous agreement on applicable law between parties does not bind decision-maker when decision-maker's view is drawn to parties – Magistrate acted appropriately in discharge of duty – No error DAMAGES – Inclusion of GST in damages for claim in conversion – No error Legislation Cited: Local Court Act 2007 (NSW) ss 39, 40 Australian Consumer Law s 18 Cases Cited: Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Bennett v Goodwin [2005] NSWSC 930 BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21 Gaba Formwork Contractors Pty Ltd v Turner Corporation Limited (1993) 32 NSWLR 175 Grant v YYH Holdings [2012] NSWCA 360 Ireland v WG Riverview Pty Ltd (2019) 101 NSWLR 658; [2019] NSWCA 307 Life Insurance Co of Australia Limited v Phillips (1925) 36 CLR 60 O'Meara v Adams [2020] NSWSC 975 Oakley v Lyster [1931] 1 KB 148 Pantorno v The Queen (1989) 166 CLR 466 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR [9] Sinclair v Haines [2000] NSWSC 642 Texts Cited: John G Fleming, The Law of Torts (Law Book Company, 9th ed, 1988) Category: Principal judgment Parties: Matthew Patrick O'Meara (Plaintiff) Jane Adams (Defendant) Representation: Counsel: Matthew Patrick O'Meara (In person) Mr J. Baird (Defendant) Solicitors: Fishburn Watson & O'Brien (Defendant) File Number(s): 2020/75550 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court Jurisdiction: General Division Citation: N/A Date of Decision: 12 December 2019 Before: Magistrate Gibson File Number(s): 2018/00234014 Judgment 1. The plaintiff, Mr O'Meara, the defendant in the court below, appeals, and seeks leave to appeal, from a judgment given in the Local Court at Coffs Harbour (his Honour Magistrate Gibson) on 12 December 2019 in the sum of $11,369 with costs assessed in the sum of $2,842.25 in favour of the plaintiff below, the defendant in this Court, Ms Adams. 2. By Statement of Claim filed in the Local Court on 30 July 2018, Ms Adams sued Mr O'Meara in detinue for the return of certain cattle and, in the alternative, for their value assessed in the sum of $11,869. There was no claim for consequential loss. At the hearing in the Local Court Ms Adams was given leave to amend to claim damages for conversion rather than in detinue as it was then common ground that Mr O'Meara had sold some of the cattle in question in March 2019 and the others had died. As can be seen, she was entirely successful in recovering the amount claimed. 3. On 27 July 2020, I stayed the Local Court judgment in favour of Ms Adams pending the outcome of Mr O'Meara's appeal: O'Meara v Adams [2020] NSWSC 975. 4. Section 39 of the Local Court Act 2007 (NSW) confers a right of appeal upon a party to proceedings in the Local Court sitting in its General Division who is dissatisfied with the judgment to the Supreme Court, but "only on a question of law". A more limited right is conferred by s 40 of the same Act. Under it, a party dissatisfied with the judgment on a ground that involves a question of mixed law and fact may only appeal by leave of this Court. 5. Although Mr O'Meara had disputed the whole of Ms Adams' claim, before me he seemed to accept some liability to Ms Adams. He argued this could not exceed the amount of the proceeds of his sale of the cattle on 14 March 2019, an amount of $5,172.95 (Annexure X(L), Affidavit Matthew O'Meara sworn on 24 March 2019, page 201, Defendant's Court Book ("DCB")) and a capped amount for costs referrable to proceedings in the Local Court's Small Claims Division of about $800. 6. Whether one looks at it by reference to the amount of the judgment and costs actually awarded to Ms Adams in the Local Court or by reference to the difference between that amount and the sum of around $6,000 for which Mr O'Meara contended, it needs to be borne in mind that the amount in issue is a very significant consideration informing the question of whether leave to appeal, where necessary, should be granted. With the respect to the parties, given the small amount in dispute in these proceedings, powerful reasons would need to be shown to justify a grant of leave. As I will explain, no such reason has been shown. Accordingly, the appeal is confined to grounds evincing a question of law. Background facts 1. The parties had previously been in dispute in proceedings in the former Federal Circuit Court of Australia. That matter was settled by entry into a Deed of Settlement on 28 May 2018. Part of the dispute related to the cattle the subject of these proceedings. Clause 2.5 of the deed is in the following terms: "[Ms Adams] shall within 28 days cause at her expense the removal of 4 cows from [Mr O'Meara's Salisbury Plains property] being identified by tag numbers … and their progeny and thereafter retain same for her sole benefit." 1. Unbeknown to Ms Adams, Mr O'Meara had moved the cattle from the Salisbury Plains property to another property of his at Ebor on 8 May 2018. Mr O'Meara's position is that he did this because the Salisbury Plains property was drought affected and conditions were better at Ebor. 2. On 13 June 2018, Ms Adams, without notice, visited the Salisbury Plains property to inspect the cattle and identify their progeny for the purpose of collecting them the following day. She observed that there were no cattle on the property. I interpolate that when he learned of Ms Adams's visit, Mr O'Meara regarded it as a trespass and a repudiation by her of the deed, at least so far as cl 2.5 was concerned. 3. On 14 June 2018, Ms Adams wrote to Mr O'Meara inquiring as to the whereabouts of her cattle. Mr O'Meara withheld the whereabouts of the cattle for a period despite ongoing correspondence between them before imposing conditions not stipulated by the deed for their return. 4. On 23 June 2018, Mr O'Meara purported to invoice to Ms Adams for agistment of the cattle, effectively purporting to exercise a lien over them pending payment. 5. Sometime in July 2018, Ms Adams attended the Ebor property with a Mr Kelemec who gave evidence before the learned Magistrate, for the purpose of attempting to identify any progeny of the now disputed cattle. And on 30 July 2018, she issued the Statement of Claim out of the Local Court claiming the return of eight head of cattle, being the four identified in the Deed and four progenies that Ms Adams and Mr Kelemec identified on their visit to Ebor. 6. The Statement of Claim was served by Ms Adams' solicitor by email on 31 July 2018. Mr O'Meara responded promising to "tell the judge what really happened" and in substance saying, "I'll see you in court" (DCB, page 163). In his defence filed on 27 August 2018, Mr O'Meara pleaded: "[Ms Adams's] version of events is not accurate [Ms Adams] breached the Deed". He thereafter actively defended the proceedings. 1. In the course of ongoing correspondence, on 3 March 2019 (DCB, page 180), Mr O'Meara claimed that Ms Adams had breached the deed by her trespass, disputed the claimed value "of the 4 known and identity viable head mentioned in the deed (sic)", disputed any progeny not identified by "livestock DNA", asserted the cattle were his due to Ms Adams' breach of the deed including her failure to collect them within 28 days, and offered the opportunity for the livestock to be valued by a qualified person at Ms Adams' expense. 2. On 14 March 2019, as referred to above, Mr O'Meara sold seven head of cattle at the Armidale cattle sales. He also asserted that three head of the livestock claimed by Ms Adams had died. It is also common ground that two of the cows identified in the Deed had given birth in or about November 2018 while the proceedings were pending, but Mr O'Meara disputed that these calves were progenies within the meaning of the deed. The proceedings on 12 December 2019 1. Before summarising the Magistrate's judgment, it is well to record, because it figured so prominently in Mr O'Meara's argument on the hearing of the appeal, that Mrs Adams' case in conversion had been presented on the basis that the date of conversion was the date of the Armidale sale. While denying Ms Adams' entitlement, Mr O'Meara accepted that that was the correct approach. Indeed, he regarded it as "an agreed fact". From the material before me, that matter seems to have been "common ground" until 12 December 2019. 2. On that day the matter had been listed for judgment. Prior to delivering his judgment, the learned Magistrate quizzed, in turn, the solicitor appearing for Ms Adams and Mr O'Meara (who was self-represented below, as in this Court) about the date of the accrual of the cause of action in conversion. In particular, the significance of any exercise of control or "dominion" over the cattle by Mr O'Meara in derogation of Ms Adams' title and right to immediate possession conferred by the Deed: see John G Fleming, The Law of Torts (Law Book Company, 9th ed, 1988) at 70. Although Ms Adams's solicitor initially maintained that the date of sale was the relevant date (DCB, pages 1.46, 2.5 - .10), after further discussion he submitted, "the conversion was [when] they were due to be handed back … they were converted from then because he then very clearly claimed dominion over them". 3. Initially Mr O'Meara submitted that he had "offered on multiple occasions to actually deliver them within the time of the Deed. But we did dispute the progeny" (DCB, page 7.20). After further discussion, the following exchange occurred between the learned Magistrate and Mr O'Meara: (DCB, page 12.45 – 13.15): "His Honour: But is that the case or is it the case, is it open for me to find that when on 31 July you sent the email after receiving the Statement of Claim… so the Statement of Claim is filed on 31 July 2018? [Mr O'Meara]: Yes. Which is still outside the 28 days your Honour isn't it? His Honour: Outside the 28 days. [Mr O'Meara]: Correct, yes. His Honour: So that means that there's been this period between 25 June 2018 when the deed ended. [Mr O'Meara]: Yes. His Honour: Then on 31st July 2018 - - [Mr O'Meara]: That's right your Honour, yes. His Honour: - - When the litigation commenced. [Mr O'Meara]: Yes. His Honour: Is it not open for me to view any subsequent discussions between you and Mr Campbell - - [Mr O'Meara]: Yes. His Honour: - - as purely negotiations in the process of the litigation that was on foot, and no longer an attempt by you to assist in the execution of the Deed. [Mr O'Meara]: No that's not correct. Your Honour - - His Honour: Because they have filed a claim against you, they said they want the cattle back; [Mr O'Meara]: Yes but I dispute that claim. His Honour: No but they filed it, but that's right you dispute it. [Mr O'Meara]: Yes. …. [Mr O'Meara]: Because I dispute the values that were placed in the claim." 1. Later in the discussion his Honour asked Mr O'Meara about the email of 3 March 2019 (DCB page 21.26 - .40): "His Honour: But see this is the, when you run into things like this, on 3 March you say, in an email to [Ms Adams's solicitor], "I claim the cattle are mine due to breach of deed and her inability to execute the deed within the 28 days allotted." So that all suggests … [Mr O'Meara]: But what year's that your Honour, what year's that your Honour, that's 2019 isn't it. His Honour: Well that's 3 March 2019, but it is all indicative of your view that because of the Deed was breached, this is where I started. [Mr O'Meara]: Yeah. His Honour: That you believed yourself to be the owner of the cattle until it could be proved otherwise. [Mr O'Meara]: At that point, at that point. At that point. His Honour: The date of the breach of deed and her inability to execute. [Mr O'Meara]: Well I'm saying that the cattle are mine because she breached the deed. But that was not, that – the legal proceedings were nineteen month[s] afoot when that email occurred." The Magistrate's judgment 1. Having recounted the background facts, his Honour said (DCB 23): "As I understand it is the case of the plaintiff that I find that [Mr O'Meara] was not only in possession of the eight disputed cattle, and the two soon to be born calves from the time that the deed ended. But he was also acting as though the cattle were his own, in the sense that he was exercising dominion over them. … Then when it became clear that the defendant was determined to fight the statement of claim seeking the return of the cattle, then that is clear evidence that a conversion had occurred at that point, in the sense that Mr O'Meara was clearly exercising dominion over the livestock. "… The issues that arise in the hearing are as follows, was the plaintiff … entitled to the four identified cattle in the Deed of Settlement and their progeny in the circumstances that arose in terms of the execution of the Deed. If she was entitled, how many cattle did this amount, that is to say, can I be satisfied that the four disputed cattle were four progeny of the identified cattle, and can I be satisfied that the two calves who were clearly gestating at the time of the Deed, can be included in the concept of progeny? "I have to be satisfied of those matters on the balance of probabilities. I am also asked to decide did the defendant convert the cattle to his own use and when? That is a real matter, if it comes to, that is relevant to the assessment of damages." 1. His Honour set out the competing evidence about the valuation of the livestock and then summarised Mr O'Meara's case as follows (DCB page 24): "The defendant in the course of the evidence admitted that the plaintiff was initially entitled to the four cattle identified in the deed and their progeny provided she complied with the terms of the deed which he asserts were to be interpreted within Australian law. Mr O'Meara asserts that Ms Adams initially breached the deed by trespassing on his property at Salisbury and then was thereafter delinquent in her pursuit of the cattle in circumstances where he was providing to her adequate assistance and as such she failed to keep to the 28 day timetable of the deed. His first argument is that she is therefore no longer entitled to any cattle. "In the alternative Mr O'Meara argues that if the plaintiff was entitled to any cattle, I can only be satisfied on the balance of probabilities that the four earmarked cattle as identified in the deed were hers, and the value of the cattle was well below the amounts asserted by the plaintiff. He further argues that no progeny produced after the signing of the deed could be contemplated by the deed and they also should be excluded from the calculations. There is a question mark whether the two calves that were clearly born in Ebor, and there is no dispute about that, could be considered progeny in circumstances where the cows were only, at its highest, pregnant at the time of the execution of the deed and the calves had not been born." 1. His Honour expressed the following conclusion on the liability issue as follows (DCB, page 28): "Under that deed I would view Ms Adams as having an entitlement to attend the property for the purpose contemplated within it, being the recovery of her animals. Further Mr O'Meara then claimed agistment during the ongoing to and fro of the email traffic, something that he was clearly not entitled to under the deed. That claim for agistment is indicative of him putting roadblocks in the way of the recovery of the cattle that Ms Adams was entitled [to]. He never brought the cattle back to the Salisbury Plains property, they at all times remained at Ebor. "Then the defendant's actions must be looked at in the context of him having, in my view, deliberately withheld the information that the cattle were at Ebor at the time the deed was signed. In my view it was a deliberate act on the part of Mr O'Meara to make the return of the cattle as difficult as possible for her, because of the acrimony he felt towards Ms Adams. If it were true that he was concerned about the distance that she needed to travel to pick up the cattle, he would have, at the time of the crafting the deed delineated the actual property that the cattle were on (to) take into account that they were at a property much closer to [Ms Adams's property] and he knew that at the time of the deed. "It is all indicative in my view of Mr O'Meara having a sense of dissatisfaction with the [Federal Circuit Court proceedings] and him making it difficult. In my view the deed must be read as placing responsibility upon Mr O'Meara to have the cattle at the pickup location from a time, or immediately after the signing of the Deed to take into account the time limit of 28 days and the difficulties involved in the movement of cattle. When he sent his email dated 21 June 2018 … it is further evidence of his unpreparedness to honour the deed by withholding the pickup location he was proposing. On one occasion he sent an email saying 'I'll bring the cattle, I'm not going to tell you the pickup location until the day", which is I imagine in the context of trying to move cattle. A very difficult proposition. "Mr O'Meara's actions were in my view calculated to thwart Ms Adams' access to the cattle identified on the deed and as such I am satisfied that Ms Adams remains entitled to the cattle that were identified in the deed and their progeny as were in existence at the time at which the deed should be executed." And his Honour further stated (at DCB page 31): "It is clear that I have no doubt that he converted the cattle to his use as of, at the very least 31 July 2018 when he unequivocally responded that he was not going to return the cattle despite there being a Statement of Claim and he subsequently filed a defence. He then subsequently sold them. There is an email from March 2019 showing that his view was that he owned the cattle because of the breach of the Deed." 1. His Honour accepted the lay evidence of Ms Adams and Mr Kelemec, from when they visited Ebor, as establishing that four head of cattle were the progeny of the four cattle identified in the deed. This evidence was supported by photographs taken at the time. Ms Adams and Mr Kelemec returned to the vicinity of Ebor in November 2018 and photographed the two new calves born to two of the cattle. His Honour also took into account four other factors that he identified as having been established by the evidence as bolstering Ms Adams' and Mr Kelemec's oral testimony. Those factors are (DCB 29.45-30.10): 1. the original four asserted progeny were taken from Salisbury Plains to Ebor at the same time as the four identified cattle; 2. from Mr O'Meara's cross-examination he concluded there was no prospect that those cattle could have belonged to anyone else; 3. he was not able to explain how anyone else's cattle could have become mixed with that group of cattle; and 4. the invoice for purported agistment indicated "a clear degree of suspicion on the part of Mr O'Meara that the four asserted cattle were in fact progeny of the four identified cattle". 1. He expressed his conclusion as follows (at DCB 30.38): "I am satisfied on the balance of probabilities that each of the cattle identified in the photographs in the exhibits that are an annexure to Exhibit 5 are progeny of the original four cows that are subject of the Deed. The fact that there is no DNA testing, in my view, whilst it would have settled the matter beyond reasonable doubt, does not detract from my satisfaction on the balance of probabilities that they are progeny." He also regarded it an absurd proposition that the cows being carried by their mothers when the deed was executed would not amount to progeny: (DCB 32.5) 1. Given his finding that the conversion occurred by 31 July 2018 and his reference to authority, not called into question by Mr O'Meara, that damages are to be assessed at the date of conversion, his Honour preferred the material put forward on behalf of Ms Adams from the Grafton Cattle Yards as being relevant evidence by which "the value of the animals should be gauged" (DCB 31.36). He did not regard the evidence of the New England Cattle Sales from March 2019 as being preferable, given that that evidence represented a sale "much later in time". The grounds of appeal 1. The summons commencing the appeal advanced 19 grounds of appeal and the oral argument extended somewhat beyond them. The following grounds were pleaded: 1. Error 1 - incorrect quantum. This related to the findings in relation to "progeny"; 2. Error 2 - initiating the re-commencement of the proceedings after they had finished; 3. Error 3 - introducing at the Magistrate's own motion a matter that was not pleaded; 4. Error 4 - not abiding by an agreed fact; 5. Error 5 - handing down two different judgments in favour of both parties; 6. Error 6 - accepting the plaintiff's quantum evidence because "it would have been too laborious otherwise"; 7. Error 7 - referring to verbal evidence from the plaintiff as if it were proven; 8. Error 8 - assisting the plaintiff's solicitor with legal advice; 9. Error 9 - encouraging the plaintiff's solicitor to amend his pleadings and change his position to align with his preferred judgment; 10. Error 10 - allowing the plaintiff's solicitor to calculate the quantum; 11. Error 11 - allowing non-expert evidence to carry the weight of expert evidence; 12. Error 12 - failing to undertake quantum calculations; 13. Error 13 - no evidence to support the quantum; 14. Error 14 - allowing the quantum to be calculated by reference to estimates in preference to the actual true and real values that were in evidence; 15. Error 15 - overriding the terms of the Deed of Settlement; 16. Error 16 - including GST in the judgment; 17. Error 17 - not cross referencing the plaintiff's evidence in chief to cross-examinations; 18. Error 18 - not reading the details of the invoice sent for agistment; 19. Error 19 - not providing a written judgment. 1. As is apparent, many of these grounds are but a different way of expressing the same complaint and I will attempt to group them together to deal with them logically. The bias grounds – Grounds 2, 3, 4, 8 and 9 1. These grounds relate to the proceedings on 12 December 2019 which I have summarised at [16]-[19] above. The gravamen of Mr O'Meara's complaint is perhaps best encapsulated in Ground 9, expressed as "encouraging the [plaintiff's] solicitor to amend his pleadings and change his position to align with [his Honour's] preferred judgment". This formulation of the ground and much of Mr O'Meara's articulation of his argument at the hearing seemed to involve a complaint of actual bias on the part of the learned Magistrate. While Mr O'Meara acknowledged this (transcript 4 November 2020, page 28.10), he was not prepared to expressly advance that claim. He stated, "I am very content with apprehended bias because I think that will achieve success in my appeal". Although a self-represented litigant, Mr O'Meara is an intelligent, intellectually resourceful and articulate person. I will treat his complaint as one of apprehended bias as he asks. 2. I am of the view that a ground of appeal asserting apprehended bias, although it involves a review of what happened at first instance and therefore factual considerations, involves a question of law permitting an appeal as of right under s 39 of the Local Court Act: Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1, [9] (Mason P); [78]-[79] (Ipp JA); and [159] (Basten JA). 3. A complaint of apprehended bias, of course, is an aspect of a denial of procedural fairness. A litigant who has been denied procedural fairness in a material way has not had a trial at all and the matter must be remitted for retrial. An appellate court dealing with an allegation of apprehended bias and other grounds of appeal is required to deal with the issue of bias first as if the allegation of bias is made out, it is necessary to order a retrial irrespective of findings on other grounds: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55. 4. The test for apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gleeson CJ, McHugh, Gummow and Hayne JJ said at [6]: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide." 1. There is a further principle to which reference must be made. That is to the judgment of Mason CJ and Brennan J in Pantorno v The Queen (1989) 166 CLR 466 at 473: "When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted." (See also Seltsam v Ghalab at [78] and Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21 at [115] (Heydon J)). 1. In my opinion, what transpired before the learned Magistrate on 12 December 2019 before the delivery of his oral judgment is directly covered by the principle in Pantorno to which I have just referred. There is no justifiable complaint of either actual or apprehended bias that can be made against his Honour. He was not bound by the view of the law for which the parties apparently contended that a cause of action in conversion could not arise until Mr O'Meara sold such of the cattle as remained alive on 14 March 2019. Although by then the evidence was closed and addresses had been made, the trial was not over. Not only was the learned Magistrate entitled to inform the parties of the view he had formed, he was bound to do so. By raising it with each of them in turn, and engaging with them in a Socratic dialogue, his Honour impeccably followed the requirements of the law. Each party was given an ample opportunity to address the new issues that may have arisen from his Honour's departure from the assumptions of law upon which the parties conducted their case. His Honour's view of the law, in my opinion, was correct as is demonstrated by reference to the passage from Fleming to which I have referred previously, itself based upon Oakley v Lyster [1931] 1 KB 148. 2. Indeed, Mr O'Meara does not complain about the correctness of the proposition the learned Magistrate raised with the parties, but only with the procedure his Honour adopted. His complaints about that matter, however elaborated in the various ways in which it was expressed in the grounds to which I have referred, was misguided, and with respect erroneous. From my review of the material which I have summarised above, it is wrong to suggest that the learned Magistrate was offering Mrs Adams's solicitor legal advice or encouraging him to change his position to accord with some preconceived notion of the Magistrate's. By the time he raised the matter with the parties on 12 December 2019, his Honour had had ample opportunity to consider the issues and the evidence maturely. 3. In my view the Ebner principle is not engaged. As I have said, his Honour acted appropriately to discharge his legal duty. He did not breach it. I reject these grounds of appeal. Inconsistent judgments – Ground 5 1. To the extent that Ground 5 also applies to the bias topic, I reject that ground. 2. The so-called first judgment is an exchange between his Honour and Mrs Adams's solicitor during the discussion about the correct approach to the accrual of the cause of action (DCB 3.10 - .30). His Honour pointed out, again correctly, that damages are to be assessed at the date the chattels are converted and expressed the tentative view that if the cause of action accrued at the date of sale, the prices Mr O'Meara received "have to apply". It was in response to that observation that Ms Adams' solicitor submitted that Mr O'Meara had "no intention of giving the cattle back", at least from 28 June 2018. However, the point is, that a question asked, an observation made, or a view tentatively posited in arguendo is not a judgment. Nor was the learned Magistrate bound by such matters. They were not final expressions of opinion, or conclusions of fact. If Ground 5 raises a different point from the bias grounds, assuming it to be a question of law, I also reject it. Challenges to findings of fact identifying the "progeny" – Grounds 1, 7, 11, 17 and 18. 1. In truth, each of these grounds in different ways seeks to impugn the learned Magistrate's findings of fact and the Magistrate's acceptance of the evidence of Ms Adams and Mr Kelemec. They involve no question of law and no appeal lies either as of right, or by leave. If they involve a mixed question of fact and law, contrary to my assessment, I would not grant leave to allow Mr O'Meara to ventilate them for the reasons I explained at [6] above, and because they involve no question of principle and have slight, at best, prospects of success. 2. The learned Magistrate found that four of the six alleged progenies were offspring of the identified cattle because he accepted the evidence of Ms Adams and Mr Kelemec, as I have set out above. This he was entitled to do. He also regarded it as consistent with other evidence which I have summarised at [23]-[25]. 3. That these findings are beyond the powers conferred on the Court by ss 39 and 40 of the Local Court Act is made abundantly clear by the decision of the Court of Appeal in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-6. That decision concerned the powers of the Court of Appeal to determine an appeal from the former Workers' Compensation Commission. The Commission's governing legislation limited appeals to the Court of Appeal, so far as is relevant for present purposes, to an appeal "in point of law". I do not understand the right conferred by s 39 of the Local Court Act limited to appeal "only on a question of law" to be broader than an appeal limited to a grievance "in point of law": see Seltsam v Ghaleb at [150] (Basten JA); Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [124] (Spigelman CJ). 4. In Azzopardi Glass JA (with whom Samuels JA agreed; Kirby P dissenting) said (at page 155-6): "To say of a finding [of fact] that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal." Mr O'Meara seeks to say the same thing of the findings of fact, in this regard made by the learned Magistrate. His complaint discloses no error of law, and no valid ground of appeal. 1. Grounds 17 and 18 may be understood as impugning the learned Magistrate's judgment by reference to considerations of illogicality. However, such a matter is covered by the statement of principle by Glass JA to which I have referred. 2. Ground 11 was in substance a complaint that the establishment of progeny required expert evidence rather than lay evidence. Mr O'Meara's argument was that the only way this issue could be proved was by appropriate DNA evidence. In this regard, he relied on Ireland v WG Riverview Pty Ltd (2019) 101 NSWLR 658; [2019] NSWCA 307; a case involving allegations of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law (Cth). The authority cited does not establish as a proposition of law that the results of DNA testing is the only acceptable evidence demonstrating the lineage of cattle. In his discussion of the evidence, Macfarlan JA (at [54]) referred to witness testimony to the effect that "DNA testing is the way to be sure 'these days' about the pedigree of a calf and that gene (or genomics) testing and DNA testing is 'becoming more and more commonplace in our livestock industries'". Manifestly, his Honour was not discussing any matter pertinent to the law of evidence. 3. As the learned Magistrate himself observed, the availability of DNA evidence establishing the pedigree of the disputed progeny would have constituted proof beyond reasonable doubt. But his Honour was cognisant that he was required by law to apply the civil standard of proof. Expert evidence was not required as a matter of law, whatever one may think about the proofs actually proffered. Ground 15 - Overriding the terms of the Deed of Settlement 1. As I understand the argument, this is a reiteration of the argument in relation to the proofs necessary to establish progeny. In this iteration it is put forward as a matter of interpretation of the Deed of Settlement. Mr O'Meara argued that, "to determine progeny one must first determine parentage and to determine parentage there is only one reliable and non-disputable method and that is using DNA testing". Mr O'Meara also pointed out by reference to the facts in Ireland v WG Riverview that even careful inquiry, absent DNA testing, is not proof against a mistake about parentage. He submitted that, by implication, the terms of the deed excluded determination of progeny on the balance of probabilities. 2. Although in some circumstances the meaning to be ascribed to language in a legal instrument like a deed may involve a question of law, where a word used in a document like the Deed of Settlement is to be afforded its ordinary and natural meaning, the determination of that meaning is a question of fact. Determining the natural and ordinary meaning of a word in its immediate context of the clause in which it appears and the wider context of the deed as a whole including reference to its nature and object is a question of fact. This is not to say that the legal effect of the Deed is not a question of law: Life Insurance Co of Australia Limited v Phillips (1925) 36 CLR 60 at [78] (Isaacs J). 3. Lest I am wrong in the distinction I have sought to draw in this case, I am not persuaded that the correct construction of the deed or of Clause 2.5 in particular, requires, in the case of dispute, that progeny be established by DNA testing. There is no such express provision in the deed. Nor is there any provision stipulating which party should bear the cost of such testing in the case of dispute. It was doubtless expected at the time the deed was executed that such questions could be resolved quickly and informally, within 28 days. None of this engages the principles discussed in BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 (Lord Simon of Glaisdale) for the implication of terms in a contract. 4. To the extent to which Mr O'Meara still disputes that the two calves which were on en ventre sa mère when the deed was executed, I would reject that argument. I agree with the learned Magistrate that it would absurd to suggest that they were not progenies covered by the terms of the deed once born. In any event, as Mr Baird of learned counsel, appearing for Ms Adams, argued by reference to Grant v YYH Holdings [2012] NSWCA 360 at [37] (McColl JA), the general rule is that the offspring of domestic animals are the property of the owner of the mother. This reinforces the correctness of the approach of the learned Magistrate. 5. I reject this ground. Issues of calculation – Grounds 6, 10, 12, 13, 14 and 16 1. It is important to bear in mind, as Mr Baird argued by reference to Sinclair v Haines [2000] NSWSC 642 (Hamilton J), that: "… the appropriate damages in conversion are the value of the goods at the date of conversion; that prima facie the measure of those damages where there is a market in the goods is the price at which replacement goods can be bought in that market". (See also Gaba Formwork Contractors Pty Ltd v Turner Corporation Limited (1993) 32 NSWLR 175 at 177G-178B.) The learned Magistrate correctly directed himself by reference to these principles (at DCB 31.30 – 35). 1. It is perhaps logical to commence with Ground 13 which is a no evidence ground, which may give rise to a question of law at least so far as it concerns ultimate findings of fact: Azzopardi at 156E. This ground can be disposed of quickly. At DCB 23.45 – 24.5, his Honour set out the evidence upon which he relied as follows: "Exhibit 7 is a summary of the asserted value of the cattle, there being one error identified by [the solicitor for Ms Adams] in his submissions which he has clarified today, being the initially asserted claim price of the black bull being $2,500. That was reduced in submissions to a valuation of $1,410. The values that are ascribed to the various animals in Exhibit 7 are, as I understand it done, by calculating an estimated weight for each animal and multiplying it by the cents per kilogram price relevant to the Grafton market as per the Grafton Market Report dated 10 July 2018, Annexure D at Exhibit 5. The replacement value therefore including GST is $11,369 according to the plaintiff." 1. There is no suggestion that this evidence was not properly before the learned Magistrate. As I have said, the Magistrate preferred this evidence to the evidence of the actual sale price obtained by Mr O'Meara on his sale of the surviving cattle on the ground that the Grafton prices bore a temporal connection with the date of conversion which the New England cattle sales prices did not (DCB 40). There was evidence: what the Magistrate thought of it and how he resolved the conflict between the competing contentions were questions of fact beyond the power of this court. 2. Mr O'Meara also argued that there was a miscalculation (DCB 72). However, this relates to the inclusion of the value of the calves unborn at the date of conversion. Leaving aside that these matters are inherently questions of fact, it was appropriate that some additional value be added to the plaintiff's damages to take account of the additional loss. The sums allowed of $171 and $463 respectively were modest enough. If by any chance this ground involved a mixed question of fact and law, I would refuse leave. 3. I turn then to Grounds 6, 10, 12 and 14. There was no error, and certainly no error of law, in requesting Ms Adams' solicitor to recalculate the damages by reference to the content of the exchange between the Bench and the Bar Table. It's to be noted that his Honour directed the solicitor to show the calculations to Mr O'Meara (DCB 11.25T) and no objection to that procedure was taken by him at the time. It is very common practice in the courts of this State for the judicial officer to request the parties to do the arithmetic to reflect assumptions about damages depending upon what the ultimate decision might be. To my mind there is nothing in the comment that the Magistrate made about it being "laborious" for him to do the arithmetic himself. Doubtless he would have, had the parties been unable to assist in accordance with his request. In any event, no question of law is disclosed by these grounds, nor is any mixed question of fact and law. I dismiss them as incompetent. 4. Ground 14 has already been dealt with in substance. It was open to his Honour to prefer the Grafton figures over the New England figures. The allowance for GST – ground 16 1. Mr O'Meara complained about an allowance for goods and services tax being included in the damages. His submission appears to be that Ms Adams was not entitled to an allowance under that head because she would be entitled to apply an input credit. The difficulty with this contention is that there was no evidence before the learned Magistrate that Ms Adams was registered for GST. The position therefore is that the assessment of the value of the goods she lost represents the replacement price payable by a purchaser in the market-place which includes GST: Bennett v Goodwin [2005] NSWSC 930 at [17]. Campbell J said: "… because the function of damages for conversion is compensatory, it is the price to a purchaser of the goods which is the appropriate measure of damages. Thus, it is the market price, inclusive of GST, which is the measure of damages." (Emphasis in the original) Ground 19 – Reasons 1. Mr O'Meara complains that the learned Magistrate did not publish a written judgment. This ground is entirely misconceived. His Honour, as a judicial officer, was bound to give reasons explaining his decision. He was not bound to produce a written judgment and his statement of oral reasons was more than sufficient to discharge his judicial duty. If I may be permitted to say so, I regard the transcript of his oral judgment as clear, thorough, focused and more than adequate to explain the actual path of reasoning he followed to dispose of the issues he identified for his determination. There is nothing in this ground. Conclusion 1. In the event, all of Mr O'Meara's grounds of appeal are rejected. Accordingly my orders are: 1. Appeal dismissed; 2. Plaintiff to pay the defendant's costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2021