CONSOLIDATED TRANSPORT INDUSTRIES PTY. LIMITED v. WHIRLPOOL (AUSTRALIA) PTY. LIMITED & ANOR [2003] NSWSC 1197

New South Wales Supreme Court

CITATION : CONSOLIDATED TRANSPORT INDUSTRIES PTY. LIMITED v. WHIRLPOOL (AUSTRALIA) PTY. LIMITED & ANOR [2003] NSWSC 1197 HEARING DATE(S) : Wednesday 23 April 2003 JUDGMENT DATE : 17 December 2003 JURISDICTION: Civil JUDGMENT OF : Greg James J at 1 DECISION : Both the appeal against the verdict and costs dismissed.

CATCHWORDS : Civil claims - appeal to Supreme Court from Local Court - question of law - terms of sub-bailment - conduct of proceedings before magistrate - proceedings turning on critical fact - whether appeal available - costs - what opportunity to be heard necessary. LEGISLATION CITED : Local Court (Civil Claims) Act 1970 CASES CITED : N/A PARTIES : CONSOLIDATED TRANSPORT INDUSTRIES PTY. LIMITED v. WHIRLPOOL (AUSTRALIA) PTY. LIMITED & ANOR FILE NUMBER(S) : SC No. 10775 of 2002 Plaintiff: S.T. White COUNSEL : 1st Defendant: I.R. Pike 2nd Defendant: P.J. Gow Plaintiff: Freidman Reeves SOLICITORS : 1st Defendant: Phillips Fox 2nd Defendant: Holding Redlich

LOWER COURT Local Court JURISDICTION : LOWER COURT 785/00 FILE NUMBER(S) : LOWER COURT C. Forbes JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GREG JAMES, J.

WEDNESDAY 17 DECEMBER 2003

No. 10775 of 2002

CONSOLIDATED TRANSPORT INDUSTRIES PTY. LIMITED v. WHIRLPOOL (AUSTRALIA) PTY. LIMITED & ANOR

JUDGMENT

1 GREG JAMES, J: These are proceedings in which the plaintiff, Consolidated Transport Industries Pty. Limited (hereinafter CTI), the second defendant in the proceedings below, by summons appeals, pursuant to s.104 and s.109 of the Justices Act 1902 made, by s. 69 of the Local Court (Civil Claims) Act 1970 applicable to civil proceedings, the decisions of a magistrate in certain Local Court civil claims proceedings. 2 At the time of this appeal s.104(1) provided:- "(1) 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." 3 Section 109 provided:_ "The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:- (a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it, (b) increasing or reducing the sentence appealed against, (c) making such other orders as it thinks just, (d) remitting the matter to the magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal." 4 At the time these proceeding were brought, these were the extant provisions of the Justices Act 1902 applicable to such appeals. That Act has subsequently been repealed. Nonetheless, this matter falls to be decided on the basis of those two sections as then enacted. 5 The plaintiff seeks that the order of the magistrate of 21 February 2002 finding a verdict against it in favour of the first defendant (Whirlpool), the plaintiff in the Local Court, in the sum of $41,353.91 be quashed or set aside; that the order the magistrate made that the plaintiff pay the costs of Whirlpool and the second defendant, J.R. Haulage Pty. Limited (hereinafter JRH; referred to in the Local Court as SWADS, ie., Sydney Warehousing and Distribution Services, a name under which that company traded) be quashed or set aside, including the order that the first defendant's costs be paid on an indemnity basis. It is sought in lieu that the proceedings be dismissed as against the plaintiff; that the first defendant pay the plaintiff's costs.