Harrison v Combined Towing Services Pty Ltd [2023] NSWSC 1524

Supreme Court New South Wales

Medium Neutral Citation: Harrison v Combined Towing Services Pty Ltd [2023] NSWSC 1524 Hearing dates: 7 December 2023 Date of orders: 8 December 2023 Decision date: 08 December 2023 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Pursuant to s 40(2) of the Local Court Act 2007, grant the plaintiff leave to appeal from the decision of the Local Court of 27 January 2022, striking out the plaintiff's proceeding in that Court. (2) Allow the appeal and set aside the orders made in the Local Court. (3) Remit the matter to the Local Court for determination of the defendant's notice of motion of 25 October 2021, if pursued as a preliminary matter, or otherwise for determination of the plaintiff's claim. (4) Order that the defendant pay the plaintiff's costs in this Court. Catchwords: CIVIL PROCEDURE – limitation period – action in conversion – person under a disability – prisoner in custody seeking damages for vehicles disposed of after his arrest – fraudulent concealment – statements by principal of defendant as to fate of vehicles – application of Limitation Act 1969 (NSW), ss 52, 55 – whether limitation defence appropriately dealt with as preliminary issue CIVIL PROCEDURE – appeal from Local Court – question of law – dismissal of proceedings without hearing on merits – whether interlocutory order – whether leave required – whether criteria for grant same as for appeal by way of rehearing to Court of Appeal CIVIL PROCEDURE – appeal from Local Court – error of law established – magistrate failed to make necessary findings of fact – whether findings can be made on appeal Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW), s 4 Interpretation Act 1987 (NSW), s 35 Limitation Act 1969 (NSW), ss 11, 14, 21, 52, 53, 55 Local Court Act 2007 (NSW), ss 39, 40 Mental Health Act 2007 (NSW), Sch 6, Pt 2, cl 4 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Adrenaline Pty Ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123 Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164 C & J Clark Ltd v Inland Revenue Commission [1973] 1 WLR 905 Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513; [1997] HCA 38 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Rose v Tunstall [2018] NSWCA 241 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Texts Cited: M Leeming, Resolving Conflicts of Laws (The Federation Press, 2011) Category: Principal judgment Parties: Graham Loughlan Harrison (Plaintiff) Combined Towing Services (NSW) Pty Ltd (Defendant) Representation: Counsel: M S White SC (Plaintiff) B Wilson (Defendant)