Supreme Court New South Wales Medium Neutral Citation: Owen Bogg v Safe N Sound Pty Limited [2015] NSWSC 930 Hearing dates: 30 April 2015 Date of orders: 15 July 2015 Decision date: 15 July 2015 Jurisdiction: Common Law Before: Adams J Decision: Summons be dismissed with costs Catchwords: APPEAL – appeal against Local Court decision – Local Court Act 2007 s 39 – unrepresented party – departure from procedures – refusal of adjournment – admissibility of statement when witness not available – leave to argue facts on appeal Legislation Cited: Local Court Act 2007 (NSW), ss 39, 40 Category: Principal judgment Parties: Owen Bogg (Plaintiff) Safe N Sound Pty Limited (Defendant) Representation: Counsel: In person (Plaintiff) Mr A. D. Justice (Defendant) Solicitors: In person (Plaintiff) Hunter Legal (Defendant) File Number(s): 2014/00170287 Publication restriction: None Judgment Introduction 1. The plaintiff stored various items with the defendant. He stopped paying the monthly storage fees after several months and, when this situation continued for about 10 months, the defendant sold the goods, realising an amount substantially below the outstanding debt. The defendant commenced proceedings in the Local Court claiming $1989.00 plus interest and filing fees. This claim was in the Small Claims Division but, on the application of the plaintiff, who put on a cross-claim, the matter was transferred to the General Division. Judgment was given for the defendant on its action and the cross-claim was dismissed. The cross-claim had been, as I understand it, produced in a somewhat informal way to in the Local Court at the hearing but was not, however, part of the documents provided by the plaintiff to this Court. The matter proceeded before me upon the basis that it was agreed the cross-claim alleged, in substance, that it was an implied term of the storage contract that the defendant would not sell the plaintiff's property without first finding a buyer to pay a reasonable price for that property and that the goods were sold at a gross undervalue, the defendant's power of sale being exercised in an unfair or unconscionable manner under what was said to be the "Australian Consumer Law". The defendant pleaded in its defence, in substance, that it had acted in accordance with the contract and with industry practice and, having put the goods out to tender, had sold them to the highest bidder. 2. The plaintiff, who was unrepresented both in the Local Court and in this Court, appeals against the dismissal of his cross-claim on the following grounds – [The Magistrate] erred in law by failing to take into account relevant considerations when she made the decision to dismiss the cross claim, namely that the plaintiff was an unrepresented plaintiff [who] had experienced difficulties in obtaining material on subpoena. In the alternative, [the Magistrate] erred in fact when she made the decision to dismiss the cross claim by failing to rely upon the facts as presented by the plaintiff. [The Magistrate] erred in law in exercising her discretion to dismiss the cross claim in circumstances where to do so was unjust. [The Magistrate] erred in law when she made the decision to dismiss the cross claim contrary to procedural fairness. 1. The jurisdiction of this Court in respect of judgments of the Local Court is governed by the Local Court Act 2007 (NSW), s 39 of which gives a right of appeal on a question of law, whilst s 40 permits appeals on a ground involving a question of mixed law and fact, but only by leave of the court. Leaving aside other issues with the grounds of appeal, it is evident that grounds 2 and 3, at least, require leave. The Local Court hearing 1. The claim and cross-claim came on for hearing on 5 May 2014. The learned Magistrate first dealt with material that was produced on subpoena, including on a subpoena issued by the plaintiff, and gave access to both parties. The next matter was an application by the plaintiff to adjourn the proceedings, which was opposed by the defendant upon the ground, essentially, that the matter had been before the Court on a number of occasions with the plaintiff securing adjournments each time for the purpose of obtaining evidence. Although the submission made by the plaintiff was somewhat garbled, the substance appears to be that the subpoena which he had issued was inadequately answered so that it required more time to gather the material he needed for his cross-claim. 2. The subpoena, with a return date of 1 May 2014, was addressed to a Mr Stephen Blythe requiring, "[i]n relation to your operation of Ebay websites … all details relating to the identity of the person/s or entity (name, address, telephone numbers, email address, facsimile number) who supplied or sold to you or any person/s or entity associated with you all books, photographs, ships log, jewellery and LP records as described below since 19 June 2012 until the service date of this subpoena", of which some were listed in an attachment, together with "the amounts paid for these items". Also required was – All information held by you or your associate/s as to the identity of the purchaser of the items listed above and the amount realised from the sale of these items since 19 June 2012 until the service date of this subpoena. A listing of any other items described … [above] in your possession and notyet listed for sale by you or your associate/s on any website (or any other sales options available to you). 1. Next to particular items listed in the body of the subpoena, Mr Blythe simply noted, "Don't have". In addition to the laconic notes to which I have referred, Mr Blythe, in a brief statement attached to the subpoena, said he had purchased some books at Islington Markets in October 2013 but did not know the identity of the seller, knew nothing about the items previously noted as "Don't have", had no "proof" that the items he bought were the plaintiff's and had only eBay details of three books he had sold (priced at) at $30.00, $29.99 and $39.99. On the attached list, Mr Blythe ticked almost all of the books in the list as indicating he had them in his possession and indicated others he had sold. 2. Having seen the subpoena response, the plaintiff informed the Magistrate that he had some evidence but it was not sufficient for him to prove his claim. He said that on (the previous) Friday, 2 May, he had been informed by the Court office that a response to the subpoena had been received and he had assumed that everything he had requested, namely all the information about the books being sold on eBay, had been provided. He said that this information was vital to his case. The Magistrate pointed out that, when the matter came before her a month before, she had explained to him that it was important that he ensured that this information was available when the matter came on for hearing and for this reason had given him extra time. The plaintiff in effect agreed that he had owed the defendant what they claimed but contended that the goods had been sold for far less than they were worth which was many times more than the debt. He said, in effect, that he was not in a position to prove his claim that day. The matter was then stood down in the list whilst the Magistrate dealt with other matters. 3. On resumption, the plaintiff told the Magistrate - Yes, I've seen the subpoena, your Honour. My only comment is that to suggest that he bought a few books at the Islington Market when he's got, you know, literally over 100 books of mine, selling on an Ebay site seems a little far fetched, but based on that then I have to just get a valuation of my Ebay accounts. The fact that we've now got a subpoena, Ebay will probably answer the details in the records of his account, so all I can ask is the court's indulgence, just to let me now finalise my claim within a short period of time and that's it, I've got nothing more to add, your Honour, except that that was vital to my claim and it seems quite inadequate but it seems a fairly off hand response to a serious subpoena, but I have nothing more to say. I can only ask and I just – I have one final time, just so I finalise my claim. I've got a draft affidavit here which I'll then have to put attachments to, which will take me a few days to get things to do, but if that's possible I would appreciate it. 1. The plaintiff then consented to judgment on the primary claim but wished to press his cross-claim which he needed time to be able to do. The Magistrate related the history of the matter – HER HONOUR: What I've got before me is a case, the first court date was 10 October. It was then here on 24 October, 7 November, 21 November, 14 April and it was 21 November where the matter, the hearing date was given, the deputy registrar made orders for the filing and serving of evidence and then listed the matter for hearing on 14 April. On 14 April I did the review and I was told that the plaintiff had served all evidence-in-chief. I gave leave … for you, Mr Bogg, to file and serve a further amended statement of cross-claim. I made a costs order and I also – … basically I said all the evidence had to be filed and served by 24 April. DEFENDANT: Which I did. HER HONOUR: Now, you've filed a notice of motion seeking to have the hearing date vacated today because you want further time to prepare some material. It was subpoenaed material that was coming – DEFENDANT: Correct. HER HONOUR: And it was listed before the court. Now, the subpoena was served – when was that served? When did you issue the subpoena? DEFENDANT: I think it was 21 days, some time early April, your Honour, I believe, when we finally got the address of Stephen Blythe. We tried through Ebay and various source of buying books to find out who owned the website and it was only when we finally got a book and a name. It was sent within a matter of days, I then produced and served that subpoena on Stephen Blythe and I was anticipating that that would then give me quite a bit of information to just finalise my cross-claim and when I've just read the affidavit – sorry, the subpoena response, it seems – I don't know ‑ fairly light on, considering the number of books that he's been selling on his Ebay. Even over the last month there's been numerous books, which I can tender. Mine are worth of nearly nine and a half thousand dollars, so to suggest that he bought a few books from the local market, I mean I don't know how we prove against it but I just have to – HER HONOUR: Okay, okay, I'm just going to stop you there. 1. Her Honour then refused to grant an adjournment, pointing to the "many times" that the matter had been before the court and the failure of the plaintiff to be ready to establish his cross-claim, the subpoenas providing no further information concerning the possession of the books. Her Honour noted the obligation to ensure that litigation is dealt with in "a just quick and cheap manner" and referred to the matters that needed to be considered when weighing up the relevant considerations referring in particular to the provisions of part 6, division 1 of the Civil Procedure Act 2005. She acknowledged – Mr Bogg certainly has had difficulties in preparing his case. He has had the benefit of assistance from the University Legal Centre, although he is unrepresented before the court … This matter has a long history, Mr Bogg, has been given many opportunities to prepare his case and justice is not achieved for all parties and the overriding purpose is not secured if I were to grant the adjournment that has been sought and therefore I decline the application to vacate [this hearing date]. 1. When the Magistrate refused the plaintiff's adjournment application, she asked him whether he consented to judgment being entered for the amount of the defendant's claim, which the defendant said he did not dispute. Accordingly, her Honour entered judgment including interest up to the date of filing and filing fees for $2,304.25, plus interest from the date of filing, in favour of the defendant, reserving the costs issue for the present. 2. So far as the cross-claim was concerned, a defence had been filed to the original cross-claim but not to the amended cross-claim which apparently had been filed (this is somewhat uncertain) but had not been served. The plaintiff also relied on a draft affidavit by him, which was only in draft form as he had been relying, he said, on obtaining what he had sought on subpoena from Mr Blythe. No objection was taken on the ground that it was unsworn (since that could obviously easily be corrected). There were other objections of substance. The affidavit attached what was said to be a screen shot from a computer, a signed statement from a Mr McLean, who was the proprietor of a shop selling second hand books, a "listing of goods in my storage lock-up" (called a "Subpoena List") and a list of goods (to which no objection was taken – it was the defendant's document). 3. Mr McLean's statement said that the price for which a book is sold on eBay accurately reflects the market price of that book. The statement continued – 6. I have looked at the list of books itemised by Owen Bogg as books which he says were previously in his possession and the books listed by him as first edition books signed by prominent people such as former Presidents of the United States would, in my opinion, have been valuable books and I would accept that the price displayed as the sale price on eBay would reflect a market value of that particular book. 7. I understand that the books in the possession of Owen Bogg were sold as a June 2012 [sic]. During the last year or so it is my experience that these books are selling for $10,000 at an absolute minimum if they are available on the market. Signed copies are often extraordinarily rare, scarce and/or sold at many multiples of unsigned copies. [Underlined words added to typescript by hand.] 1. The Magistrate explained to the plaintiff that it was necessary that Mr McLean be available to give evidence and be cross examined before his statement could be used. Furthermore, in the normal course he would have to agree that he was aware of and was bound by the Expert's Code of Conduct. The Magistrate pointed out that the plaintiff needed to be able to prove that the books and items which were sold by the defendant were those which he had placed in storage and those to which Mr McLean referred. The plaintiff responded, in effect, that the suggestion that these books were purchased at a local market "when there's over 42 on sale and I know they're my books … seems to me to be quite ludicrous" and again for an adjournment for a week or so to "finalise it on the basis of what I know now" and obtain a completed affidavit from Mr McLean. The Magistrate pointed out again that he needed to prove what had been stored and that they had been sold for less than their value and referred to the connected problems of proof. 2. So far as admission of the (unsigned) affidavit was concerned, the Magistrate stated - HER HONOUR: Today I have heard from the parties in relation to whether or not I should admit into evidence an affidavit of Mr Bogg. The history of this matter in terms of the preparation is on the record and I have given Mr Bogg an opportunity to make quite extensive submissions about the background of the matter. He has given an explanation as to why he has not prepared the affidavit, but for reasons I gave earlier in the day, Part 6 of the Civil Procedure Act requires matters to be dealt with in accordance with the overriding purpose and there were reasons sufficient for me to refuse the application for an adjournment and I adopt those reasons now. In terms of the affidavit, whilst unsworn, I am not too troubled by that because that can be cured by Mr Bogg's adopting it in the witness box. There are difficulties with the documents that he has sought to annex. Firstly, there is a document purporting to be an email from eBay. There is no provenance set out in relation to explaining what the document is and case law requires affidavits to identify the documents that are annexed. There is no explanation whatsoever and I will not admit the eBay email. In terms of the statement of Mr McLean, there are a number of difficulties. He is purporting to be an expert. There is no adoption of the expert witness statement, Mr McLean is not here to give evidence, the affidavit contains a number of handwritten alterations [about] which there is no explanation given. There is a handwritten list, but the difficulty is that – and once again there is no explanation in the affidavit of Mr Bogg himself as to this document, but in any event, annexed in the way that it is, it amounts to hearsay evidence and on that basis I am not going to admit the statement of Mr McClean together with the "Subpoena List". Once again there is no identification of the subpoena list in the affidavit itself. [The defendant's list was admitted, there being no objection to it.] 1. In light of what had transpired, it was not necessary for the defendant to proffer any evidence and, although it had filed a number of affidavits as to the issues raised by the plaintiff, they were not read. The plaintiff made submissions, essentially repeating what he had already put. After brief submissions from counsel for the defendant to the effect that there was no case to meet, the plaintiff in reply simply repeated what he had earlier said about having a case but needing time to prove it. The Magistrate then briefly described the course of the hearing and the difficulties with the plaintiff's affidavit and the documents attached to it and observed, in substance, that there was no evidence that the books claimed by the plaintiff to have been his were indeed those which had been stored, nor was there any evidence of their value. The cross-claim was dismissed and, following further submissions, the plaintiff was ordered to pay the defendant's costs on the ordinary basis. The appeal 1. The plaintiff sought to tender a number of affidavits. The first (called "affidavit of service" sworn 11 February 2015) attaches the transcript of the proceedings in the Local Court, a letter originally addressed to Legal Aid outlining both the circumstances of the storage, the sale of the items and their value together with a statement of Mr McLean in identical terms to that sought to be tendered in the Local Court but adding a statement as to the Expert Code of Conduct. The plaintiff also sought to read an affidavit filed on 13 April 2015 (also called "affidavit of service") which attached a statement by him as to the items stored, their sale, their value and his attempts to investigate how and to whom they were sold and why he was not ready to present his cross-claim in the Local Court. The plaintiff also sought to tender screen shots from a website advertising for sale various books and other items showing a photograph of the items and the amounts for which they were offered for sale. This item was tendered to demonstrate the value of the items asserted by the plaintiff to be his but, for the obvious reason that they show only the amount claimed as distinct from the amount at which they were sold, they cannot amount to evidence of value. Mr McLean was not available to give evidence. I refused leave to the plaintiff to read his affidavits except for the tender of the transcript of the proceedings in the Local Court. 2. In his submissions, the plaintiff essentially repeated what he had put to the Local Court, which have been sufficiently summarised above. It is not necessary to repeat them here. I should point out that, as appears from my discussion of the subpoena above, it was not confined to documents but sought information which the recipient was not obliged to disclose. Nevertheless, he was cooperative and supplied a deal of information which, however, was not what the plaintiff expected and, as he told the magistrate, was disputed. In his submissions to me the plaintiff argued that the Magistrate had not given due consideration to the matters which he had brought to her attention including the shortcomings of the defendant's procedures for the sale of stored items. As I understand him also, he argued that being a lay person not legally trained he should have been given an opportunity to correct the legal errors in proof which became evident: he said, "I should have been given on that date a chance to be instructed". As I understand him this meant that the Magistrate should have advised him how to overcome the problem or otherwise given him time to consult someone. He had said that he had obtained the assistance of some students in the law faculty at the University of Newcastle. He said he did not have the opportunity to subpoena Mr Blythe because the subpoena had been returned late without the information he believed he would have obtained. Nor did he have an opportunity to subpoena Mr Blythe to come to court and give evidence. He submitted he should also have had the opportunity to subpoena as well the supposed buyer of his goods, as claimed by the defendant. 3. The defendant submitted that the Magistrate's decision as to the adjournment and the dismissal of the cross-claim were correct and not affected by any error, pointing out that the only evidence in the end in the plaintiff's case was the defendant's notice of goods sold which did not itemise any books but referred to various "boxes of books". 4. It will be seen that the learned Magistrate, in terms, referred to the fact that the plaintiff was unrepresented and that he had experienced difficulties in obtaining the material which he needed for his case. In my view the Magistrate took into account all relevant matters when considering the plaintiff's application for adjournment. The plaintiff has not demonstrated any error in the exercise of her Honour's discretion. Ground one has no merit. 5. The second ground of appeal alleged an error of fact by the Magistrate in dismissing the cross-claim by failing to rely upon the facts as presented by the plaintiff. The plaintiff has not persuaded me that it is appropriate to grant leave to rely on any error of fact. At all events, given that those "facts" were assertions in submissions and not the subject of evidence, her Honour's decision was inevitable. As to ground three, a Court does not have any discretion to refuse judgment where the facts and the applicable law otherwise require a particular conclusion. In fairness, I should add that, at all events, given the state of the evidence, the judgment of the Magistrate was inevitable and was by no means unjust. I take it the procedural unfairness alleged in ground four is the refusal of the Magistrate to grant the adjournment requested by the plaintiff. A refusal to grant an adjournment may or may not be a mistaken exercise of a discretion, but it will rarely be and was not in this case, productive of procedural unfairness. Moreover, the plaintiff has not established that her Honour's discretionary decision to refuse the adjournment miscarried. Conclusion 1. For the reasons set out above, the summons must be dismissed with costs. ********** 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. Decision last updated: 15 July 2015