Brand & Media v Aeropack Australia [2008] NSWSC 1095

New South Wales Supreme Court

CITATION : Brand & Media v Aeropack Australia [2008] NSWSC 1095

HEARING DATE(S) : 14 October 2008

JUDGMENT DATE : 20 October 2008

JURISDICTION : Common Law

JUDGMENT OF : Harrison AsJ

(1) Leave to appeal is refused. DECISION : (2) The appeal is dismissed. (3) The summons filed 30 July 2008 is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS : APPEAL - Local Court Magistrate - identity of contracting party

LEGISLATION CITED : Local Courts Act 1982

CATEGORY : Principal judgment

Brand and Media v Aeropack (2007) 212 FLR 357; [2007] NSWSC 854 CASES CITED : Swain v Waverley Municipal Council (2005) 220 CLR 517 The Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126

PARTIES : Brand and Media Pty Limited (Plaintiff) Aeropack Australia Pty Limited (Defendant)

FILE NUMBER(S) : SC 13906/2008

SOLICITORS : K Dowd (Plaintiff in person) S Catalano (Defendant in person)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 10040/2007

LOWER COURT JUDICIAL OFFICER : Price LCM

LOWER COURT DATE OF DECISION : 3 July 2008

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 20 OCTOBER 2008

13906/2008 - BRAND AND MEDIA PTY LIMITED v AEROPACK AUSTRALIA PTY LIMITED

JUDGMENT (Appeal decision of Local Court Magistrate - identity of contracting party) 1 HER HONOUR: By summons filed 30 July 2008, the plaintiff seeks an order that the judgment of his Honour Magistrate Price dated 3 July 2008 be set aside and a rehearing ordered. 2 The plaintiff is Brand and Media Pty Limited (Brand and Media) who was the defendant in the Local Court proceedings. Mr Dowd is the sole director of Brand and Media. The defendant is Aeropack Australia Pty Limited (Aeropack) who was the plaintiff in the Local Court proceedings. Mr Catalano is the director of Aeropack. The second defendant in the Local Court proceedings was Brand Base Pty Limited (Brand Base). Mr Dowd is also a director of Brand Base. Up to March 2007 Brand and Media and Brand Base had their offices at the same address at Jones Bay Wharf at Pyrmont. Brand and Media relied on the affidavit of Kieron John Dowd sworn 9 September 2008. For convenience, in the judgment, I shall refer to the parties by name. Mr Dowd and Mr Catalano appeared in both the Local Court and this Court. They were unrepresented on both occasions. 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 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. There are many decisions as to what constitutes a question of law (as opposed to a question of fact). 4 Although not specifically pleaded, it seems that the plaintiff was seeking leave pursuant s 74 of the Local Courts Act. The onus lies with the plaintiff to demonstrate that there has been an error of law or that leave should be granted on a mixed question of law and fact. 5 Section 75 of the Local Courts Act provides that this 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. 6 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.