New South Wales Supreme Court CITATION : Dawson v Commonwealth Bank [2007] NSWSC 887 HEARING DATE(S) : 10 August 2007 JUDGMENT DATE : 15 August 2007 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Harrison DECISION : (1) The appeal is dismissed; (2) The decision of His Honour Garbett LCM made on 9 March 2007 is affirmed; (3) The summons filed 27 March 2007 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS : Appeal decision of Local Court Magistrate - payment of debt LEGISLATION CITED : Civil Procedure Act 2005 (NSW) - s 38 Local Courts Act 1982 (NSW) - s 73 Allen v Kerr & Anor [1995] Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 CASES CITED : Carr v Neill [1999] NSWSC 1263 Devries v Australian National Railways Commission (1993) 177 CLR 472 R L & D Investments Pty Ltd v Bisby 920020 37 MVR 479 [2002] NSWSC 1082 Swain v Waverley Municipal Council (2005) 220 CLR 517 PARTIES : Rosemary Teresa Dawson - Plaintiff Commonwealth Bank of Australia - Defendant FILE NUMBER(S) : SC 11581/2007 COUNSEL : Mr M Izzo SOLICITORS : Home Wilkinson Lowry, Lawyers - Defendant Ms R T Dawson - Plaintiff in person LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 78985/2006 LOWER COURT JUDICIAL OFFICER : Garbett LCM LOWER COURT DATE OF DECISION : 9 March 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE HARRISON WEDNESDAY, 15 AUGUST 2007 11581/2007 - ROSEMARY TERESA DAWSON v COMMONWEALTH BANK OF AUSTRALIA JUDGMENT (Appeal decision of Local Court Magistrate - payment of debt) 1 HER HONOUR: By summons filed 27 March 2007, the plaintiff seeks to appeal the decision of His Honour Garbett LCM made on 9 March 2007. Ms Dawson seeks the relief which reads: "Section 38 of the Civil Procedure Act 2005 Judicial Notice. ALRC References. ALRC 38, s 120, par 227; ALRC 26, vol 1, pars 482-483, 973 and s 144 for anything not caught by this provision in State legislation. Prejudiced towards 3rd party mentioned in motion regarding their obligation under Contract Law and Employment Law of the State. Vacarious (sic) liability of debt by third party claimed." 2 The plaintiff is Rosemary Teresa Dawson. The defendant is the Commonwealth Bank of Australia (the bank). The plaintiff relied on her affidavit dated 27 March 2007 and her written submission filed 20 July 2007. 3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being erroneous on a point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor [1995] Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082. The judicial officer cannot act on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. 4 In Swain v Waverley Municipal Council (2005) 220 CLR 517, the Chief Justice at [2] reiterated that in the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. 5 Section 75 of the Act provides that the Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. Grounds of Appeal 6 The plaintiff's written grounds of appeal are firstly, a point of law, secondly, a lack of impartiality in the magistrate's decision; thirdly, a certificate from an appropriate minister in areas of executive responsibility; fourthly, an authority that the information is conclusive; and fifthly, the decision given by Deputy Grayson at the Industrial Relations Commission on 4 October 2002, regarding a Church organisation being subject to the law of the State and employment was a fundamental operation of State law in relation to employees. 7 In oral presentation, Ms Dawson explained that she had been employed at St Patrick's College as a teacher of English and religious studies. In 2002, her employment was terminated with the Catholic Education Office. She took proceedings in the Industrial Relations Court. In 1999, Ms Dawson obtained a Visa card with the Commonwealth Bank. Since she has not been employed she says that she has been unable to pay the amount that she owes. Ms Dawson does want to pay the debt. She has offered to work for the Commonwealth Bank in order to pay off her debt, but the bank declined her offer. 8 Ms Dawson submitted that there are implied terms in her contract with the bank that if she becomes unemployed, she is not responsible to pay the debt or, alternatively, her former employer the Catholic Education Office that should be responsible for the debt. The proceedings in the Local Court 9 On 26 October 2006, the bank filed a statement of claim seeking payment of $37,902.04 plus fees and interest, being a debt, which the bank alleges Ms Dawson owes it in relation to a Visa card account. 10 On 2 January 2007, Ms Dawson filed a defence alleging that the Catholic Education Office was responsible for the credit card debt. The contention appears to have been that she obtained the credit card with a belief of lifetime employment with the Catholic Education Office and that, that employment having later ceased, she became unable to service the debt. 11 On 23 February 2007, the Bank filed a notice of motion (the Bank's motion) seeking an order striking out Ms Dawson's defence pursuant to r 14.28 of the Uniform Civil Procedure Rules, and an order for costs. 12 On 5 March 2007, Ms Dawson filed a notice of motion (Ms Dawson's motion) seeking (i) a stay of proceedings pending finalisation of her unfair dismissal claim against the Catholic Education Office; (ii) an order that the Catholic Education Office be held responsible for the credit card debt; and (iii) an order that an independent and unbiased arbitrator view all the documentation relevant to the unfair dismissal claim. 13 On 9 March 2007, both motions were heard by Garbett LCM. His Honour made the orders sought in the Bank's motion, that the defence filed by Ms Dawson did not disclose a defence known to law (transcript p4, lines 10-15). His Honour dismissed Ms Dawson's motion (transcript p4, line 15) with costs of $450. To date the bank has not entered judgment against Ms Dawson. 14 I have read the transcript and the plaintiff's documents very carefully. The implied term argument was not raised before the Magistrate. The written contract was not tendered in evidence before the Local Court nor this Court. If one is to imply terms into a contract, it is necessary to ascertain the actual terms of that contract. 15 It is my view that there has been no error of law, nor was there a lack of impartiality in the Magistrate's decision. The other grounds of appeal are incompetent. The appeal is dismissed. 16 The decision of His Honour Garbett LCM made on 9 March 2007 is affirmed. The summons filed 27 March 2007 is dismissed. 17 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. The Court orders: (1) The appeal is dismissed. (2) The decision of His Honour Garbett LCM made on 9 March 2007 is affirmed. (3) The summons filed 27 March 2007 is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** 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.