Imad v Image Desktop Publishing & Anor [2000] NSWSC 832

New South Wales Supreme Court

CITATION : Imad v Image Desktop Publishing & Anor [2000] NSWSC 832 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11947/99 HEARING DATE(S) : 17 August 2000 JUDGMENT DATE : 23 August 2000

Tony Imad (Appellant) PARTIES : Image Desktop Publishing & Printing Pty Limited t/as Image DTO (1st Respondent) Aussie 2000 Pty Limited (2nd Respondent) JUDGMENT OF : Studdert J

LOWER COURT Local Court JURISDICTION : LOWER COURT 12224/97 FILE NUMBER(S) : LOWER COURT M. Price JUDICIAL OFFICER :

P. Cook (Appellant) COUNSEL : V. Sydun (1st Respondent) S. Baker (2nd Respondent) Cordato Partners (Appellant) SOLICITORS : Sydun & Co (1st Respondent) Ward Maxwell & Co (2nd Respondent) LEGISLATION CITED : Supreme Court Rules Suitors Fund Act Pettit v Dunkley (1971) 1 NSWLR 376 Pannezutti v Trask (1987) 10 NSWLR 531 CASES CITED : Soulezmis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 Palmer v Clarke (1989) 19 NSWLR 158 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 DECISION : See para 26

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Wednesday 23 August 2000 11947/99 TONY IMAD v IMAGE DESKTOP PUBLISHING & PRINTING PTY LIMITED t/as IMAGE DTO & ANOR

JUDGMENT

1 HIS HONOUR: The appellant, Tony Imad, appeals by way of summons from a decision of the General Division of the Local Court. In that Court the second respondent to this appeal, Aussie 2000 Pty Limited, had claimed by way of statement of liquidated claim the sum of $5340 for work done and materials supplied. The appellant resisted that claim and by way of cross claim sued the second respondent for conversion. He also joined the first respondent, Image Desktop Publishing and Printing Pty Limited, as a third party, again for the tort of conversion. The first respondent denied conversion and pleaded a cross claim against the appellant for work done to the value of $1167. The first respondent also cross claimed against the second respondent, that claim being based upon "a misleading and deceptive representation." 2 The factual background to the litigation can be shortly stated: the appellant engaged the second respondent to provide a quantity of leather menu and wine list covers for his restaurant known as the Harbourfront Restaurant at Circular Quay. He had also engaged the first respondent to print the menus for insertion in the leather covers. The appellant paid a deposit for the leather menu covers but he has not paid the contract price for them nor has he paid for the menus which the first respondent claims to have printed. Both respondents are seeking payment in respect of the appellant's alleged indebtedness in the proceedings pending. 3 The factual basis for the claims of conversion I shall address presently. 4 The proceedings came before the Local Court for hearing on 24 June 1999, when the respondents each made application that the claims by the appellant for conversion be struck out. The magistrate considered the pleadings in entertaining those applications, together with statements of witnesses, but he heard no oral evidence. The applications made by the respondents proved to be successful and the claims in conversion were struck out. The appellant seeks to challenge the order striking out the third party claim in conversion against the first respondent. He does not challenge the order striking out the cross claim in conversion against the second respondent but the second respondent nevertheless remains interested in this appeal in which the appellant is seeking that an order for costs made in the Local Court on 30 July be vacated. 5 This brings me immediately to the preliminary issue before this Court. The decision which the appellant wishes to challenge was delivered on 24 June 1999. On 30 July 1999 the learned magistrate refused the appellant's application to extend the time for appealing to this Court from his decision made in the previous month. The magistrate declined to extend the time for appeal and awarded the costs of the application for the extension of time to the first and second respondents. 6 In refusing to extend the time for appeal, the magistrate appears to have considered that the application was out of time because it was entertained on the thirty-sixth day after the decision was delivered. Hence he considered that he had no jurisdiction to extend time, apparently perceiving that the provisions for appeal by way of stated case were applicable. However, these were abolished as from 1 March 1999 and appeal by summons was substituted. Part 51B r 6 of the Supreme Court Rules is directly in point in this case and it provides: "(1) Subject to subrules (1A) and (2) and any provisions made by or under any Act, an appeal must be instituted within 28 days after the material date. (1A) If an application is made to a Local Court under Part 4A of the subject Act, the time for instituting an appeal does not start to run until the application under Part 4A is finally disposed of. (2) Time fixed by subrule (1) may be extended: (a) by the Court at any time; or (b) where the decision appealed from is that of a magistrate - by the tribunal below, but only within the time fixed by subrule (1) for instituting an appeal (as extended by subrule (1A)) or on application filed within that time…" 7 It is to be observed that r 6(2) provides for an extension of the period of twenty-eight days on application made in the Supreme Court at any time or on application made to the Local Court provided it is filed within twenty-eight days of the material date. 8 To pursue an application before the magistrate under the above rule, it was necessary for the appellant to file an application for an extension of time within twenty-eight days of 24 June 1999. The appellant did not file an application but relied upon a letter addressed to the Clerk of the Local Court dated 20 July 1999, which letter is Annexure A to the affidavit of Bernard Alan Smith sworn 10 February 2000 and read in support of the summons. 9 The point has been taken against the appellant that that letter does not constitute an application filed for the purposes of r 6(2)(b). That submission is strictly correct, so that no application had been filed in the Local Court to enliven the jurisdiction of the magistrate under r 6(2)(b). It follows that the magistrate was correct to reject the application and the appellant cannot succeed in the application to vacate the orders for costs made in favour of the respondents on 30 July 1999. 10 This leaves, however, for consideration the jurisdiction of this Court to extend the time for appeal under r 6(2)(a). 11 The relief which the appellant seeks in para 1 is that the time for instituting the appeal be extended to the date of the filing of the summons, which date was 12 August 1999. The relevant timetable of events was as follows: