New South Wales Supreme Court CITATION : Austech v Ray Lintott Motors [2000] NSWSC 1053 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12170/00 HEARING DATE(S) : 13 November 2000 JUDGMENT DATE : 16 November 2000 PARTIES : Austech Corporation Pty Limited t/as Sydney Money Lent (Plaintiff) Ray Lintott Motors Pty Limited t/as Wagon Wheels (Defendant) JUDGMENT OF : Studdert J LOWER COURT Local Court JURISDICTION : LOWER COURT 317/2000 FILE NUMBER(S) : LOWER COURT Milson LCM JUDICIAL OFFICER : COUNSEL : P. Khandhar (Plaintiff) J. Downing (Defendant) SOLICITORS : Anderson Lawyers (Plaintiff) Jacovou & Co. Solicitors (Defendant) CATCHWORDS : APPEAL - seizure of car under Search Warrants Act - magistrate directs disposal of car when no longer required - whether appeal lies from such decision to this Court - Search Warrants Act s 7(3) and Justices Act ss 102, 104. Search Warrants Act LEGISLATION CITED : Supreme Court Rules Justices Act Local Courts (Civil Claims) Act CASES CITED : CDJ v VAH (1998) 197 CLR 172 DECISION : See para 27 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J Thursday 16 November 2000 12170/00 AUSTECH CORPORATION PTY LIMITED t/as SYDNEY MONEY LENT v RAY LINTOTT MOTORS PTY LIMITED t/as WAGON WHEELS JUDGMENT 1 HIS HONOUR: This is a notice of motion upon which the applicant/defendant moves for the following orders: "1. That the time during which the defendant may bring an application under Part 11 rule 8 of the Supreme Court Rules 1970 (NSW) be extended pursuant to Part 2 rule 3; 2. That the Summons in these proceedings be set aside pursuant to Part 11 rule 8 for failure to comply with Part 51B rule 8; 3. That the Summons in these proceedings be set aside pursuant to Part 11 rule 8 on the basis that the plaintiff has no standing to bring the proceedings under Part 5 of the Justices Act 1902 (NSW); 4. That the Court declare that it has no jurisdiction over the defendant in respect of the subject matter of the proceedings pursuant to Part 11 rule 8; 5. In the alternative, that these proceedings be struck out pursuant to Part 15 rule 26 on the basis that the Summons discloses no reasonable cause of action or other case appropriate to the nature of the pleading; 6. That the Plaintiff pay the Defendant's costs of the proceedings; 7. Any other order that the Court sees fit." 2 The summons which has prompted the notice of motion was filed on 17 August 2000. In that summons the plaintiff claimed relief as follows: "1. An order that the judgment of Milson LCM, made on the 21st day of July 2000 in the Local Court at Parramatta and numbered 317 of 2000 be set aside. 2. An order that the defendant forthwith deliver up to the plaintiff motor vehicle registration no. AGV 77W being a 1998 BMW 523I sedan (vehicle Identification Number WBADM42060GH71113) presently in the possession of the defendant. 3. Such further or other order as the Court deems fit. 4. Costs." 3 The background to the litigation before the Court may be shortly summarised. The defendant, as its name would suggest, was carrying on business as a car dealer. X purchased a car from the applicant using a stolen bank cheque to fund it. Having taken possession of the car in this dishonest way, X then went to the respondent/plaintiff which, as its name would suggest, was carrying on business as a money lender. X borrowed $45,000 by pledging the vehicle as security. Upon bank notification that the cheque had been stolen and would not be honoured, the defendant notified the police and, pursuant to a search warrant, police seized the vehicle from the plaintiff. 4 Subsequently X pleaded guilty to obtaining a financial advantage by deception and was duly sentenced. Thereupon the police no longer required the vehicle and applied for its disposal pursuant to s 7(3) of the Search Warrants Act 1985. A magistrate ordered that the vehicle be disposed of to the defendant. This prompted the plaintiff's summons. 5 Against this background, I turn to consider the various claims for relief on the notice of motion. 6 The defendant first seeks an extension of time for its application under Pt 11 r 8, relying upon Pt 2 r 3 of the Rules of Court. Under Pt 11 r 8 the application for relief sought in paras 3 and 5 of the motion ought to have been filed within the time limited for entering an appearance. It was not. However, the defendant has submitted that time ought to be extended under Pt 2 r 3 because the plaintiff's summons was not accompanied by a statement pursuant to Pt 51B r 8. A statement complying with that rule was not filed until 19 October 2000. That being so, the defendant submitted that its notice of motion filed on the following day was filed promptly in all the circumstances and that time should accordingly be extended as sought in para 1 of the notice of motion. 7 That relief was opposed by the plaintiff and it was contended on its behalf that the defendant did not need to be served with a statement pursuant to Pt 51B r 8 before it could seek the relief of the sort claimed in the notice of motion. Hence, it was argued, that there was no earlier compliance with Pt 51B was irrelevant. 8 In my opinion, it is reasonable to grant the extension of time which the defendant has sought in para 1 of the notice of motion. It seems to me that the defendant acted reasonably in waiting as it was entitled to do until the statement pursuant to Pt 51B r 8 was served. It was entitled to know precisely how the plaintiff was going to endeavour to advance its case. No time was wasted by it following service of that statement and, accordingly, I propose to make the order sought in para 1 of the notice of motion. 9 A statement pursuant to Pt 51B r 8 having been served, it is not appropriate to make the order sought in para 2 of the notice of motion. 10 This brings me to the relief otherwise sought in the notice of motion. Paragraphs 3, 4 and 5 all require consideration of the provisions of the Search Warrants Act 1985. Section 7 of the statute provides: " (1) A member of the police force executing a search warrant issued under this Part: (a) may seize a thing mentioned in the warrant, and (b) may, in addition, seize any other thing: (i) that the member of the police force finds in the course of executing the warrant, and (ii) that the member of the police force has reasonable grounds for believing is connected with any offence. (2) The power conferred by subsection (1) to seize a thing includes: (a) a power to remove the thing from the premises where it is found, and (b) a power to guard the thing in or on those premises. (3) After it has been produced in evidence, or when it is not required as evidence, a thing seized pursuant to this section shall be disposed of as a court or Magistrate may direct." 11 The magistrate directed the disposal of the motor vehicle under s 7(3). What the plaintiff wants to do on the summons is to challenge that order made by the magistrate. In the statement pursuant to Pt 51B r 8 the plaintiff, in addressing the nature of its case, seeks in para 5: "The return of the said motor vehicle or damages in the sum of $72,000 and interest pursuant to the Supreme Court Rules." 12 The questions of law stated under Pt 51B r 8 are the following: "1. Whether His Worship erred in law in failing to consider the principle of voidable title notwithstanding that it was conceded by the defendant herein…during submissions that voidable title had indeed passed to the rogue. 2. Whether His Worship erred in law in failing to consider the provisions of s 26(1) of the Sale of Goods Act 1923 whereby the defendant was, by its conduct, precluded from denying the rogue's authority to sell the vehicle in circumstances wherein the defendant provided the rogue with all indicia of ownership. 3. Whether His Worship erred in law when, in considering s 28(2) of the Sale of Goods Act 1923, he failed to consider the principle of estoppel by conduct. 4. Whether upon the evidence it was open to His Worship to find that the pledge was fraudulent, whilst finding that the Sale of Goods Act 1923 otherwise entitled the plaintiff to possession of the vehicle. 5. Whether His Worship erred in law in finding that the plaintiff was on notice of the defendant's interest in the vehicle by virtue of her failure to ask the defendant whether or not the cheque had cleared." 13 It is to be observed that the Search Warrants Act is silent in addressing any opportunity for relief for a person aggrieved by an order under s 7(3). There is simply no provision to be found in the statute to enable a challenge to an order such as was made in this case. Does this mean that it is not open for the plaintiff to approach this Court in the way in which it has? 14 Mr Khandhar, who appears for the plaintiff, has submitted that ss 102 and 104 of the Justices Act empower this Court to entertain the plaintiff's summons and to grant it relief of the type claimed in the statement that has been filed under Pt 51B r 8. 15 Sections 102 and 104 of the Justices Act are found in Pt 5 of that statute which concerns appeals to this Court. Section 102 provides: " (1) In this Part, a reference to a sentence includes a reference to: (a) a fine or sentence imposed by a Magistrate, and (b) any order made by a Magistrate: (i) on the conviction or instead of a conviction of a person, or (ii) as punishment for any act or omission. (2) Subsection (1) (b) includes but is not limited to the following orders and decisions: (a) an order for compensation or forfeiture, (b) an order to pay any sum of money (whether for payment by any person of costs of a party or witness or for any other purpose), (c) an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence, (d) an order or a decision under section 9 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence, (e) a decision by a Magistrate exercising the jurisdiction of a Local Court under the Fines Act 1996 not to annul a fine enforcement order, (f) any other order or decision of any kind whatever made by a Magistrate with respect to a person dealt with for an offence (whether or not the person has been convicted) deferring passing sentence on the person and releasing the person subject to conditions or without conditions, (g) a decision within the meaning of section 42 (3) of the Children (Criminal Proceedings) Act 1987 made by a Magistrate exercising the jurisdiction of the Children's Court in respect of an offence committed by a person. (3) This Part, to the extent to which it is not inconsistent with any other Act, applies to any order of a Magistrate made under another Act against which: (a) an appeal is provided for under the other Act to the Supreme Court, or (b) an appeal is provided for under the other Act but no court is specified for the appeal…" 16 Section 104 makes the following provisions for appeals: "(1) Appeals by defendants A person against whom any conviction or order was made, or sentence was imposed, by a Magistrate in summary proceedings may appeal under this Division to the Supreme Court on any of the following grounds: (a) a ground that involves a question of law alone, (b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme Court, (c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence. This subsection does not apply in respect of an order that is made in relation to committal proceedings or an interlocutory order. (2) Appeals by informants An informant may appeal under this Division to the Supreme Court against the following, on a ground that involves a question of law alone: (a) an order made by a Magistrate that stays summary proceedings for the prosecution of an offence, (b) an order made by a Magistrate in summary proceedings dismissing an information or complaint, (c) an order for costs made by a Magistrate in summary proceedings, (d) a sentence imposed by a Magistrate in summary proceedings. (3) Appeals in relation to committal proceedings A defendant or an informant may appeal under this Division to the Supreme Court against any order that is made in relation to committal proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court. (4) Appeals in relation to interlocutory orders A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court. (5) Appeals by parties to civil proceedings A party to any proceedings under the Local Courts (Civil Claims) Act 1970 may appeal under this Division to the Supreme Court as provided for by section 69 of that Act." 17 It is to be observed that s 104(1) is directed at appeals by persons against whom any conviction or order was made or sentence imposed. Section 104(2) affords to an informant an opportunity to appeal. Section 104(3) extends the opportunity for appeal to defendants and informants against orders made in relation to committal proceedings. Section 104(4) is again directed to appeals by defendants or informants. Section 104(5) gives a party to proceedings under the Local Courts (Civil Claims) Act an opportunity for appeal. 18 The plaintiff does not come within any of the categories of persons to whom s 104 is directed. Mr Khandhar has submitted that the plaintiff is "a person against whom…an order was made" but I am not attracted by that submission. It may be said that the plaintiff is a person affected by an order made but s 104(1) is not expressed in terms sufficiently wide to extend a right of appeal to any person affected by the making of an order. 19 Nor is the section or the application of Pt 5 to be given any broader application by the language of s 102. 20 What s 102 does is to give an extended meaning to a "sentence", so as to include fines (s 102(1)(a)) and orders made on conviction or instead of conviction (s 102(1)(b)(i)) and orders made as punishment (s 102(1)(b)(ii)). Section 102(2) identifies a number of orders included as orders under s 102(1)(b). Each of the orders referred to in s 102(2) relates to a person who is being dealt with for an offence. The order which the magistrate made under s 7 of the Search Warrants Act was not an order of the kind contemplated in s 102 of the Justices Act. The order under s 7(3) was an order facilitating the disposal of an object that had been seized in the execution of a search warrant. It was not an order made against an offender concerning his punishment for an offence. Indeed X had been dealt with elsewhere for his criminal activity, having pleaded guilty to obtaining a financial benefit by deception. He was not an interested party in the proceedings under s 7(3). 21 Returning to s 104 of the Justices Act, the plaintiff was not involved in proceedings in the Local Court in the sense contemplated by s 104(1). It was not a person "against whom any conviction or order was made or sentence was imposed." Mr Khandhar has not sought to argue, nor could it be contended, that the plaintiff was an informant for the purposes of s 104(2). Section 104(3), which concerns committal proceedings, has no possible application. Nor has s 104(4) which relates to interlocutory orders. 22 Section 104(5) confers on a party to proceedings under the Local Courts (Civil Claims) Act 1970 an opportunity to appeal in civil proceedings. The appeal however is as provided for in s 69 of the Local Courts (Civil Claims) Act. That section is concerned only with "judgments and orders of a court exercising jurisdiction" under the Local Courts (Civil Claims) Act: s 69(1). The nature of that jurisdiction, which is essentially statutory, is to be found in Pt 3 and does not include the exercise of the statutory power conferred on a magistrate under s 7(3) of the Search Warrants Act. 23 There is a need for the plaintiff to be able to rely upon some statutory basis for the appeal to this Court: see CDJ v VAJ (1998) 197 CLR 172 at para 197. The only statutory basis advanced by Mr Khandhar is s 102 and s 104 of the Justices Act. In my opinion, neither section avails the plaintiff and there is no other provision to be found in Pt 5 of the Justices Act which is of assistance to it. 24 A possible explanation for the failure of the legislature to provide in the Search Warrants Act 1985 for any right of appeal concerning a direction made under s 7(3) is that it was not contemplated that such an exercise of jurisdiction would determine title to any "thing" the subject of a direction by the court. Section 7(3) is not expressed in language that indicates it was contemplated that such a direction would be determinative of title. The sub-section merely permits of the making of a direction whereby a thing seized shall be "disposed of", and the obvious intention behind s 7(3) is to relieve the party which has seized possession of any item under a warrant of responsibility for its retention after such item is no longer required for evidentiary purposes. 25 The summons filed seeks an order that the defendant deliver up the vehicle to the plaintiff. The unchallenged evidence is that the defendant sold the vehicle on 21 July 2000. It could not comply with an order such as the plaintiff seeks even if there was scope for affording a remedy to the plaintiff on this summons. The alternative relief sought by the plaintiff is that the defendant be ordered to pay damages in the sum of $72,000, and that is relief of a type the magistrate was not empowered to give under s 7(3) of the Search Warrants Act. Even if there was a remedy by way of appeal to this Court in relation to the direction under s 7(3), this Court could not find error by the magistrate in failing to award damages which the Search Warrants Act did not empower him to award. 26 A motion for summary disposition of proceedings ought only be acceded to in a clear case. However, for the reasons expressed, no appeal lies under Pt 5 of the Justices Act from the decision which the magistrate made and it follows that the plaintiff cannot succeed on this summons. In these circumstances, the summons should now be struck out. Formal orders 27 1. Order as sought in para 1 of the defendant's notice of motion. 2. Order that the plaintiff's summons be struck out. 3. Order that the plaintiff pay the defendant's costs on the notice of motion and in the proceedings brought by the plaintiff. ********** Last Modified: 11/17/2000 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.