Coshott v Shipton Lodge Cobbitty Pty Limited; Coshott and Anor v Shipton Lodge Cobbitty Pty Limited; Coshott v Shipton Lodge Cobbitty Pty Limited and Anor

Coshott v Shipton Lodge Cobbitty Pty Limited; Coshott and Anor v Shipton Lodge Cobbitty Pty Limited; Coshott v Shipton Lodge Cobbitty Pty Limited and Anor - [2006] NSWSC 556 - NSWSC 2005 case summary — Zoe

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(6) If the Supreme Court determines the appeal by remitting the matter to the court, and the Magistrate who gave the judgment or made the order: (a) has ceased to hold office as Magistrate, or (b) is for any other reason unable to continue to hear and determine the matter, the matter is to be dealt with by another Magistrate nominated by the Chief Magistrate." 9 On 15 August 2005, the Civil Procedure Act 2005 commenced. The Civil Claims Act was repealed by that Act. The provisions previously contained in s.69 Civil Claims Act are now contained in ss.72 to 75 Local Courts Act 1982. The substance of the appeal provisions previously contained in s.69 are maintained in these provisions in the Local Courts Act 1982. 10 The hearing of these proceedings took place before me on 15 and 16 August 2005. No reference was made during the hearing to the repeal of s.69 Civil Claims Act and its replacement by ss.72 to 75 Local Courts Act 1982. Given that the provisions have been maintained in a different statute, I do not consider that anything turns upon this statutory change. I will refer to s.69 Civil Claims Act in this judgment. 11 An appeal as of right under s.69(2) Civil Claims Act is confined to grounds alleging that a judgment or order was erroneous in point of law. There is no universally applicable test for distinguishing questions of law from questions of fact: Collector of Customs v Agfa-Gevaert Limited (1995) 186 CLR 389 at 394. The expression "question of law" is wider than "error of law": Attorney General for NSW v X (2000) 49 NSWLR 653 at 677. 12 A finding of fact may reveal error of law where it appears that a magistrate has misdirected himself, that is, has defined otherwise than in accordance with law, the question of fact which he has to answer: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156C. An ultimate finding of fact, even in the absence of misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made: Azzopardi at 156C-D. To say that a finding is contrary to the evidence and the weight of the evidence, however, raises a question of fact and not law: Azzopardi at 155G-156A. 13 There is no error of law simply in making a wrong finding of fact: Waterford v Commonwealth of Australia (1986-1987) 163 CLR 54 at 77. 14 Certain grounds relied upon by Mr Coshott challenge interlocutory orders and orders as to costs. Such grounds may only be brought with the leave of the Supreme Court: s.69(2B) Civil Claims Act. 15 With respect to a number of grounds raised by Mr Coshott, the question arises as to whether the grounds involve questions of mixed law and fact. Such grounds may only be advanced with the leave of the Supreme Court: s.69(3) Civil Claims Act. 16 The Third Proceedings involve claims for declaratory and prerogative relief. Mr Bradford submits that such relief is not available to Mr Coshott as it was open to him to appeal to this Court under s.69 Civil Claims Act with respect to orders made under the Uncollected Goods Act 1995. It is common ground in these proceedings that Mr Coshott has not brought a statutory appeal in the Third Proceedings. In these circumstances, Mr Bradford submits that the privative clause in s.69(1) Civil Claims Act operates to exclude a claim for prerogative and declaratory relief. I will return to this issue later in this judgment when considering the Third Proceedings. 17 For present purposes, the following principles ought be stated. The object of a grant of a declaration is the determination of matters in controversy between parties. The jurisdiction to grant the declaratory relief is not to be used as a means of appeal except in special circumstances: Waterhouse v Gilmore (1988) 12 NSWLR 270 at 277C-D. 18 In the Third Proceedings, Mr Coshott submits, in effect, that there was a denial of procedural fairness, jurisdictional error or error of law on the face of the record so as to attract a grant of relief in the nature of certiorari: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176. 19 Mr Coshott bears the onus of proving the facts grounding an entitlement to relief in the nature of certiorari or declaratory relief: Hill v King (1993) 31 NSWLR 654 at 661; Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 259E-F.

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The First Proceedings - The Claim for Agistment Fees 20 On 5 September 2000, Shipton Lodge commenced proceedings against Mr Coshott in the Campbelltown Local Court to recover amounts said to be owing for the agistment and other services provided in respect of two horses, "Silver Palm" and "Dual Treasures". Given the submissions made in support of the appeal, it is appropriate to set out part of the Ordinary Statement of Claim which stated Shipton Lodge's cause of action in the following terms: "The plaintiff was at all material times engaged in the business of horse agistment being carried on at 845 Cuthill Road, Cobbitty. The plaintiff has provided and still continues to provide agistment to the defendant including all other services which include services performed by a farrier, drenching and veterinary services to the defendant's horses at the request of the defendant. The defendant's horses are still agisted on the plaintiff's property. The defendant has refused and continues to refuse to pay all outstanding accounts. The plaintiff claims the sum $9,888.15 in damages, interest and costs." 21 On 6 November 2001, Mr Coshott filed a Defence denying any contractual relationship with Shipton Lodge. The parties joined issue on the pleadings as to whether a contract was made between them. Prior to the commencement of the hearing, the Local Court had given directions for the service of witness statements. Pursuant to those directions, Shipton Lodge had served statements which put Mr Coshott on notice of the nature and scope of the evidence which it intended to lead in support of its claim. 22 On 3 April 2003, the hearing of the proceedings commenced before Mr Stoddart, Magistrate, at Campbelltown Local Court. 23 On that day, his Honour granted leave to Shipton Lodge to increase the amount of its claim to $25,529.20. The application to increase the amount of the claim reflected the continuing cost of agistment since the proceedings had been commenced. The proceedings were adjourned part heard to 30 June 2003 and continued on that day. On the application of Shipton Lodge, the presiding Magistrate granted leave to further increase the amount of the claim to $27,194.30. Once again, this increase reflected the continuing costs of agistment. 24 Shipton Lodge called a number of witnesses and tendered a number of documents in its case. Mr Coshott did not give evidence nor was any oral evidence adduced in his case. The only evidence presented on behalf of Mr Coshott consisted of an affidavit of his solicitor, Mr Ryner, attaching various banking records. Following submissions, the presiding Magistrate reserved his decision. 25 On 25 July 2003, his Honour gave judgment and entered a verdict and judgment for Shipton Lodge on its claim for agistment fees against Mr Coshott in the sum of $27,194.30 plus interest. 26 In the course of his reasons for decision on 25 July 2003, the learned Magistrate said (T2.39-3.3): "The plaintiff's case relies on the existence of a contract between the parties. It claims the contract comes about by a course of dealing between the defendant and the plaintiff company over a number of years. The defendant disputes that there was such a contract and inter alia takes issue with the plaintiff's claim for damages. The plaintiff contends that the damages are the non payment by the defendant for the services rendered. The issue of the wording of the statement of claim was raised during submissions made prior to the commencement of the evidence and while the plaintiff conceded that the pleadings could have been better drafted, it was my view, particularly taking into account the defence that was filed, that the defendant knew the case he had to meet. In any event, the Local Court is not a court of strict pleading. The plaintiff who bears the onus of proving its case on the balance of probabilities says that, although there is no written document as such, there is sufficient evidence for the Court to find the existence of a contract between the parties." 27 His Honour then referred to the evidence adduced in support of Shipton Lodge's case. This evidence included the location of the two horses at Shipton Lodge's premises, the rendering of invoices to Mr Coshott over a period of time which had been paid by Mr Coshott until payments ceased, thereby giving rise to Shipton Lodge's claim. His Honour summarised a number of submissions of fact and law made on behalf of the parties and observed (T7.19-23): "… on the evidence before me this matter involves a simple case of the plaintiff Shipton Lodge providing agistment and other services including services performed by a farrier, drenching, veterinary services it claims for the defendant's horses." 28 His Honour concluded (T7.37-8.2): "It is an undisputed fact in this case and a very significant one in my view that prior to 1 January 1999 the defendant was making payments to the plaintiff for services provided in accordance with the invoices tendered to him. From that point on, the defendant stopped making those payments. I stated at the outset of my summing up that it is the plaintiff who has to satisfy the Court that it has established its claim which in this matter is based on the existence of a contract. The plaintiff relies on the course of conduct between the parties. The defendant submits that there is insufficient evidence to establish such a contract. Taking all the evidence that has been presented at this hearing and carefully considering the case law that has been cited, it is my view that the plaintiff has clearly established the existence of a contract between the parties having regard to the course of conduct of the parties over the years and the defendant is in breach thereof. I am satisfied that the defendant should pay the full amount outstanding for the services that it has provided for the defendant." 29 Following delivery of judgment, Shipton Lodge made application for costs on an indemnity basis. The hearing of that application was stood over to 4 August 2003. In due course, on 26 August 2003, his Honour assessed Shipton Lodge's costs on an indemnity basis in the sum of $45,110.55 and proceeded to enter judgment in favour of Shipton Lodge in the action in the total sum of $77,729.00. 30 By his Amended Summons filed on 18 May 2004, Mr Coshott seeks the following relief: "1. The Plaintiff be granted leave to appeal pursuant to section 69 of the Local Court (Civil Claims) Act 1970;

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On 25 July 2003, after judgment had been entered on the Statement of Claim in favour of Shipton Lodge, his Worship granted Shipton Lodge leave to amend the amount of damages claimed to increase the amount from $27,194.30 to $32,606.09. 32 It will be apparent that several of the grounds relate to interlocutory orders as well as orders as to costs. Further, Mr Bradford, for Shipton Lodge, submits that the grounds advanced by Mr Coshott involve, in reality, alleged errors of fact or, at best, questions of mixed fact and law. It will be apparent from the terms of s.69 Civil Claims Act that there are limitations upon questions which may be the subject of appeal to this Court. Accordingly, it will be necessary to consider with respect to some grounds the nature of the errors which are alleged. 33 The principal argument advanced by Mr Coshott involved a challenge to the finding of the learned Magistrate that there was a contract between him and Shipton Lodge whereby he was obliged to pay agistment fees with respect to the two horses in question. Mr Coshott contended that the Statement of Claim alleged an express contract and that his Honour found an implied contract based upon a course of conduct between the parties. 34 Mr Coshott submitted that error of law is revealed in this case because the learned Magistrate found against him upon a basis which had not been pleaded. He submitted that the Statement of Claim alleged an express contract and that Shipton Lodge was permitted to advance a case based upon a contract arising from a course of dealing and that this was the contract found to exist by the Magistrate. Mr Coshott submitted that there had been a breach of the fundamental requirement of pleadings to state with sufficient clarity the case which he had to meet. He relied upon Banque Commerciale SA In Liquidation v Akhil Holdings Limited (1990) 169 CLR 272 at 286, 296, 302-3 in support of the proposition that pleadings served to ensure the basic requirement of procedural fairness that a party should have an opportunity of meeting the case against him and to define the issues for decision. The detailed written submissions of Mr Laughton SC expand upon this argument. It was contended that the best Shipton Lodge could do, on the evidence, was to establish that Mr Coshott was the owner of a horse and that he had made payments to Shipton Lodge on account of agistment of that horse, from a bank account operated by Mr Coshott and others. Mr Coshott contended that this was not enough to enable a finding that a contract existed between Shipton Lodge and Mr Coshott.

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Grounds 1 to 4 35 In support of Grounds 1 and 2, Mr Coshott submitted that the contract found was not the contract pleaded by Shipton Lodge and that, in any event, the evidence could not support a finding that such a contract existed. It was submitted, in support of Grounds 3 and 4, that the failure of the learned Magistrate to make findings as to the terms of the contract which were said to have been breached led to errors on his Honour's part in findings made as to Shipton Lodge's loss which was said to give rise to an entitlement to damages. 36 With respect to Grounds 1 to 4, Mr Bradford submitted that these grounds did not allege an error of law or even an error of mixed law and fact. He submitted that Mr Coshott's argument was really that there had been a wrong finding of fact or that, as Ground 2 expressly states, the Magistrate's findings were against the weight of the evidence. Relying upon Azzopardi and Waterford, Mr Bradford submitted that these grounds, even if made good, did not constitute a basis for relief under s.69 Civil Claims Act. No error of law was revealed. No error of mixed law and fact was revealed, and no foundation had been demonstrated, in any event, for the grant of leave required under s.69(3) Civil Claims Act. 37 Mr Bradford submitted that his Honour was correct in characterising the matter as "a simple case". Shipton Lodge had alleged the existence of a contract. Witness statements were served on Mr Coshott in advance of the hearing which identified the case which he had to meet. Mr Bradford opened the case in the Local Court upon the basis that it was a contract arising from a course of dealings between the parties. This matter was clearly identified on the first day of the hearing in the Local Court and was the subject of discussion between his Honour, Mr Bradford and Mr Laughton SC (T55, 3 April 2003). In due course, Mr Coshott tendered some banking records in his defence of that case. In these circumstances, Mr Bradford submits that Mr Coshott knew the case which had been brought against him and which he had to meet and that no procedural unfairness has arisen in this case: Commonwealth Securities Limited v South Pacific Securities Pty Limited [2003] NSWCA 199. Whatever uncertainty there may have been as a result of a reading of the Statement of Claim (and this ought to have been resolved by perusal of Shipton Lodge's evidence served in advance of the hearing), the position was made entirely clear on the first day of the case which was thereafter conducted upon that basis. Mr Coshott elected not to give evidence or to adduce oral evidence in his case in defence of that claim. 38 Mr Bradford submitted there was evidence to support the Magistrate's findings. The terms of the contract were clear enough involving identification of the parties, the sums to be paid by Mr Coshott to Shipton Lodge upon the basis of their continuing agistment of the two horses. There was evidence to support the Magistrate's findings. The findings were both open and correct. Arguments that the findings were against the weight of the evidence or even perverse could not give rise to an entitlement to relief for error of law: Azzopardi; Haines v Leves (1987) 8 NSWLR 442 at 469-470. 39 Mr Bradford submitted that the uncontradicted evidence adduced by Shipton Lodge and relied upon by the Magistrate included the following:

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Decision Concerning Grounds 1 to 4 40 I accept Mr Bradford's submissions concerning Grounds 1-4. 41 It is clear from the transcript of the proceedings that Mr Bradford opened the case in the Local Court upon the basis that it was a contract arising from a course of dealings between the parties. There was no written contract nor was there an express conversation which was said to constitute a contract. Rather, Shipton Lodge alleged that the horses had been left for agistment purposes on its land and Mr Coshott had been invoiced from time to time and had paid agistment fees from time to time with respect to the horses. 42 Mr Coshott did not give evidence in the Local Court and no evidence was adduced in his case. Rather, counsel appearing for him in the Local Court cross-examined the Shipton Lodge witnesses and submitted that, on all the evidence, the learned Magistrate would not be satisfied on the balance of probabilities that a contract existed giving rise to liability on Mr Coshott's behalf. 43 In his decision on 25 July 2003, the learned Magistrate held that he was satisfied on the balance of probabilities that Shipton Lodge had established a contractual entitlement to the agistment fees from Mr Coshott. 44 An error of law may arise if it is contended that the facts as found were incapable of constituting a contract. If the elements of a contract were incapable of being established on the evidence, an error of law may be demonstrated. 45 I am satisfied that Mr Coshott understood the case which he had to meet. On any reasonable analysis, he could not have been misled by the words contained in the Statement of Claim, in particular when taken with the evidence served on behalf of Shipton Lodge in advance of the hearing. Even if there was some residual question about the nature of the case which Mr Coshott had to meet, the position was put beyond any doubt on the first day of the hearing. In my view, no error of law is demonstrated with respect to the pleading point. Nor is any error of law demonstrated with respect to the findings made by the learned Magistrate. There was ample evidence to support the findings made which constituted a contract, the breach of which entitled Shipton Lodge to the relief granted by the Magistrate. 46 In my view, the matters advanced in Grounds 1 to 4, constitute arguments as to fact and not law or mixed law and fact. I reject Mr Coshott's arguments arising with respect to these grounds.

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Grounds 9 and 10 51 Mr Coshott accepts that these grounds challenge interlocutory orders and that leave of the Court is required to raise them: s.69(2B) Civil Claims Act. 52 Mr Coshott submits that the increases in the amounts claimed involve new causes of action which ought to have been separately claimed by Shipton Lodge. He submits that it was not open to the Magistrate to increase the sum to be paid to Shipton Lodge in the existing proceedings. 53 Mr Bradford submitted that in circumstances where the amount of the debt was increasing over time and where this was known to Mr Coshott, the learned Magistrate correctly exercised his discretion to allow the existing claim to be increased. One of the horses, "Silver Palm", remained on the land at Cobbitty. Various attempts were made by Shipton Lodge to have Mr Coshott remove the horse, without success. Shipton Lodge continued to invoice Mr Coshott on a monthly basis. Mr Coshott did not remove the horse and it was eventually sold, in early February 2004, for a nominal sum pursuant to an order under the Uncollected Goods Act 1995, the subject of the Third Proceedings. 54 I am not satisfied that Mr Coshott has demonstrated any error of law or mixed law and fact on the part of the Magistrate in increasing the sums claimed on these occasions. In my view, this course was open to the learned Magistrate and it lay within his discretion to so order. No basis has been demonstrated to interfere with that exercise of discretion. I would refuse Mr Coshott leave to rely upon Ground 9. 55 With respect to Ground 10, the learned Magistrate awarded pre-judgment interest in the sum of $5,411.79 at the time of giving judgment on 25 July 2003. This was a discretionary decision of the Magistrate. A claim for interest had been made in the Statement of Claim. Given the delay between the institution of the proceedings in the Local Court and the giving of judgment, it was reasonable for the learned Magistrate to award interest in the sum allowed. No error of law or of mixed law and fact has been demonstrated. I would refuse Mr Coshott leave to reply upon Ground 10. 56 In my opinion, none of the grounds of appeal relied upon with respect to the First Proceedings have been made good. No error of law has been demonstrated. Nor do I consider that there is a sufficiently arguable ground with respect to any order which justifies a grant of leave by this Court to allow it to be argued. 57 I conclude that Mr Coshott's Amended Summons with respect to the First Proceedings should be dismissed.

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The Second Proceedings - The Cross Claim Resulting from the Death of a Horse 58 On 7 February 2003, Mr Coshott obtained leave of the Local Court to file a Cross Claim in the action commenced by Shipton Lodge for the recovery of agistment fees. His wife was a Cross Claimant together with her husband. Mr Coshott's Cross Claim sought damages arising from the death on 3 October 1998 of a horse "Silver Palm 96" whilst that horse had been on agistment with Shipton Lodge. 59 On 7 February 2003, a consent order was made for the separate trial of the Cross Claim. Following the learned Magistrate's judgment on the principal claim on 25 July 2003, the hearing of the Cross Claim commenced before his Honour at the Campbelltown Local Court on 4 August 2003. The hearing of the Cross Claim continued on 23 and 24 October 2003. On 20 April 2004, the learned Magistrate entered a verdict for Shipton Lodge on the Cross Claim. 60 It was accepted, on the hearing of the Cross Claim, that Shipton Lodge bore the onus of proof that the horse had been reasonably cared for whilst in its custody. To this end, Shipton Lodge called evidence from a number of witnesses, veterinary and otherwise, concerning the horse's condition. This evidence touched upon the question whether the horse's condition would have manifested itself to persons at Shipton Lodge prior to the provision of veterinary care to the horse. 61 Mr Coshott did not give evidence or adduce any veterinary or other expert evidence in support of the Cross Claims. The only evidence adduced in the case of his wife and himself was a statement from his brother which related to a suggested arrangement whereby the horse would be used as a racing horse at a later time. This evidence went to damages only. 62 In delivering judgment on 20 April 2004, the learned Magistrate noted that there was no dispute that Shipton Lodge was at all material times a bailee for reward in respect of "Silver Palm 96". Nor was there any dispute that the horse had died on 3 October 1998 whilst undergoing post-operative veterinary treatment for a large intra-abdominal abscess. The condition of the horse had deteriorated in the days following the operation and the owner requested euthanasia. The issue for determination on the Cross Claim was the contention of Mr and Mrs Coshott that Shipton Lodge had failed in its duty of care owed to them as a bailee for reward. 63 His Honour noted that Shipton Lodge had called four witnesses:

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(d) Mr Paul Blattman, Manager, Shipton Lodge. 64 In addition, a large number of statements, reports and other correspondence were tendered in Shipton Lodge's defence. 65 His Honour recounted the evidence given by the witnesses called for Shipton Lodge. His Honour found Dr McClintock to be "a very competent and compelling witness". His Honour noted from the evidence of Mr D'Arcy that, although he had not seen the horse in question, through his experience in bloodstock matters involving race horses, he valued the animal at $2,000.00. 66 His Honour's conclusions leading to dismissal of the Cross Claim were expressed as follows (Judgment, page 9, 20 April 2004): "Having regard to all the available evidence before the Court it is quite clear that the colt Silver Palm 96 contracted an infection while it was under the care of the bailee, Shipton Lodge. That infection led to the formation of a large abdominal abscess, which eventually caused an obstruction of the bowel that required an operation. Post operatively the colt developed a number of complications and after consultation between the veterinarian and the owner the horse was euthanised. Dr. McClintock's unchallenged opinion was that the cause of the infection was not known and this in itself is not unusual with infections in horses. He indicated also that the abscess would have been present for several weeks prior to the 28th September 1998. His expert opinion was that this horse might not have exhibited any signs of symptoms that it may have been ill. If there were signs, they may have been subtle. This has been his considerable experience and knowledge of several other cases. When he examined the horse at about 5pm on 28th September its temperature was normal and he indicated that he had made no adverse notes about its general condition, conceding that it was otherwise in good condition. He also testified that any delay in admitting the horse would not have made any difference to the eventual outcome. There is evidence before the Court that the staff were all advised of what to look for when observing horses. Shipton Lodge had a twice daily feeding and checking regime in place. In addition staff had the opportunity on many occasions during the day to observe the horses in the paddocks. As soon as the Assistant Manger Mr. Edwards became aware that Silver Palm 96 showed signs of colic he moved that colt from the paddock to the stables and contacted Dr. McClintock. He then, on instructions from the vet administered a pain reliever to the colt. And whilst some criticism can be levelled at Shipton Lodge for the apparent delay in notifying the vet, the evidence clearly indicates that this default had no significance whatsoever on the unfortunate outcome. I am satisfied on the evidence before me that the plaintiff/cross defendant Shipton Lodge on balance have acted reasonably in discharging its duty of care to the defendant/cross claimants." 67 Mr Coshott has filed a statement under Part 51A Supreme Court Rules with respect to the Second Proceedings. In that statement, the grounds of appeal are set out as follows: "His Worship erred as follows:

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3.2 The finding that Shipton had discharged its onus was against the evidence and against the weight of the evidence." 68 The written submissions relied upon by Mr and Mrs Coshott in support of this appeal involve an examination of factual matters surrounding the Cross Claim. The submissions, in large part, repeat the written submissions dated 27 January 2004 which were relied upon by Mr Laughton SC before the Magistrate. Little is added, apart from the insertion of the grounds of appeal and the bare contention that the Magistrate has erred in law and has reversed the onus of proof. 69 Mr Coshott's written submissions accept that the learned Magistrate correctly directed himself as to the law in that Shipton Lodge was a bailee for reward of the horse and that the bailee must prove either that he took the appropriate care of the horse or that his failure to do so did not contribute to the loss. Mr and Mrs Coshott contend that the learned Magistrate has erred thereafter in his determination of the Cross Claim. 70 Mr Bradford submits that there is an assertion of error of law in the grounds of appeal with respect to the Second Proceedings, but no identification of the error which is said to have occurred beyond the bare assertion that the learned Magistrate reversed the onus of proof. Mr Bradford submits that, having regard to the Magistrate's decision, no error of law or error of mixed law and fact has been demonstrated by Mr and Mrs Coshott. Indeed, Mr Bradford submits that, on the evidence adduced on the Cross Claim, his Honour's judgment is entirely correct. 71 Mr Bradford relies upon the decision of the Court of Appeal in Allen v Kerr (1995) Aust Torts Reports 81-354 in which it was said that a question of law is not raised by a finding of no negligence. He contends that the written submissions relied upon by Mr and Mrs Coshott accept that the learned Magistrate directed himself correctly on the issues falling for determination. Mr and Mrs Coshott do not identify any alternative direction which ought to have been given, or any misdirection said to have been given, by the Magistrate. Mr Bradford submits that the Magistrate found that Shipton Lodge was under a duty to take reasonable care of the horse. This was a correct statement of the content of that duty. After examining the evidence, which had been adduced by Shipton Lodge alone, it was open to the learned Magistrate to make the findings of fact which he did leading to a conclusion that he was satisfied, on the civil standard of proof, that Shipton Lodge had acted reasonably in discharging its duty of care to Mr and Mrs Coshott. Mr Bradford emphasised that Mr and Mrs Coshott had adduced no expert or lay evidence at all on the issue. They had elected to litigate the real issue on the Cross Claim by way of cross-examination of witnesses called by Shipton Lodge. Having elected this approach to the litigation, the learned Magistrate made findings of fact in favour of Shipton Lodge and, having applied the correct test in law, his Honour dismissed the Cross Claim. 72 I accept the submissions of Mr Bradford.

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The Third Proceedings - the Uncollected Goods Act 1995 Proceedings and the Examination Summons 76 It will be recalled that one of the horses which was the subject of the First Proceedings, "Silver Palm", remained on the property of Shipton Lodge at Cobbitty after the commencement of the First Proceedings in September 2000. The evidence before me in the Third Proceedings reveals that, by letter dated 12 March 2003, the solicitor for Shipton Lodge informed Mr Ryner, Mr Coshott's solicitor, that unless "Silver Palm" was removed from the property of Shipton Lodge, application would be made for disposal of the horse under the Uncollected Goods Act 1995. Letters to a similar effect followed on 1 and 24 May 2003. Correspondence passed between the solicitors for Shipton Lodge and Mr Coshott in May and June 2003 concerning an undertaking from Shipton Lodge that it will release "Silver Palm". A written undertaking to that effect was provided by Shipton Lodge, but Mr Coshott did not remove the horse. 77 On 5 August 2003, the solicitor for Shipton Lodge gave further notice to Mr Coshott's solicitor that, unless "Silver Palm" was removed by 8 August 2003, application would be made for an order to dispose of the horse under the Uncollected Goods Act 1995. 78 On or about 19 August 2003, the solicitor for Shipton Lodge caused a search to be carried out of the electoral Roll in an attempt to locate the residential address of Mr Coshott, but without success. 79 On 5 November 2003, Shipton Lodge made application in the Campbelltown Local Court under the Uncollected Goods Act 1995. At that time, of course, the Cross Claim which is the subject of the Second Proceedings, remained on foot and Mr Ryner, solicitor, acted for Mr Coshott in those proceedings. 80 On 14 November 2003, an attempt was made to serve the application under the Uncollected Goods Act 1995 upon Mr Ryner, solicitor, but he refused to accept the document on behalf of Mr Coshott. 81 On 10 December 2003, Shipton Lodge filed a motion for substituted service of the application. The application sought an order for substituted service upon Mr Ryner, who continued to be the solicitor for Mr Coshott in other proceedings involving the same parties. 82 On 16 December 2003, Mr Stoddart, Magistrate, made an order for substituted service permitting service on Mr Ryner of the application. On the same day, the solicitor for Shipton Lodge served the application in accordance with the order for substituted service by pre-paid post directed to Mr Ryner's office at Level 2, Suite 4, 79-85 Oxford Street, Bondi Junction. It is noteworthy that, according to the evidence, Mr Coshott's place of employment as at December 2003 was believed to be Suite 6, 79-85 Oxford Street, Bondi Junction. 83 On 17 December 2003, the Registrar of the Campbelltown Local Court wrote to Mr Coshott at Mr Ryner's office address informing him that the application had been listed at Campbelltown Local Court at 9.30 am on 16 January 2004 for hearing. 84 On 16 January 2004, the learned Magistrate adjourned the application to 3 February 2004 and directed the Registrar to inform Mr Ryner that it had been adjourned until that day. On 16 January 2004, the Registrar wrote to Mr Coshott at Mr Ryner's office address informing of the adjourned date. 85 On 29 January 2004, the solicitor for Shipton Lodge served on Mr Ryner a copy of the affidavit of Velvet Blattman sworn 28 January 2004 which was to be relied upon in support of the application. 86 On 3 February 2004, the application came before Mr Stoddart, Magistrate, at Campbelltown Local Court. Ms Mack, solicitor, appeared for Shipton Lodge. There was no appearance for Mr Coshott. An ex parte hearing followed and his Honour proceeded to make the following orders (T6.15, Transcript, 3 February 2004): "The applicant, Shipton Lodge at Cobbitty Pty Limited is hereby authorised in accordance with section 9 of the Uncollected Goods Act 1995 to dispose of the goods set out in the application, to wit, a chestnut mare born on 24 September 1988 and named Silver Palm. The manner in which the disposal is to take place is by way of public auction. The horse may be disposed of in that manner at any time after the expiration of the period of twenty four hours. The amount of relevant charges due to the applicant in respect of the horse, this date, is $4092.20 plus the reasonable costs incurred in the auction sale. I further order the respondent to pay the professional costs of the applicant in the sum of $3000. The applicant is to advise the respondent care of his solicitors today by way of fax of this order." 87 At 1.45 pm on 3 February 2004, Ms Mack informed Mr Ryner of the making of the order by facsimile in accordance with the terms of the order. 88 On 4 February 2004, "Silver Palm" was sold by public auction for $319.00 (nett $253.26). 89 On 25 February 2004, Ms Mack notified Mr Ryner of the sale and requested payment of the sum of $6,838.74. On 26 February 2004, Mr Ryner responded by indicating that Mr Coshott intended to lodge an appeal from the disposal order under the Civil Claims Act. 90 On 11 May 2004, the orders made on 3 February 2004 were registered for enforcement. On 25 May 2004, an Examination Summons was issued in connection with the application at the request of Shipton Lodge. On 1 June 2004, an order for substituted service of the Examination Summons was made by the Registrar of Campbelltown Local Court. On 4 June 2004, the Examination Summons was served on Mr Ryner pursuant to the order for substituted service. 91 On 17 June 2004, Mr Coshott commenced proceedings in this Court. On 29 June 2004, directions were made by consent involving Mr Coshott undertaking to pay into Court the sum of $6,838.74 and Shipton Lodge undertaking not to proceed with the Examination Summons pending further order. 92 On 12 July 2004, Mr Coshott filed an Amended Summons seeking declaratory and prerogative relief with respect to the order under the Uncollected Goods Act 1995 and the issue of the Examination Summons. 93 By his Amended Summons, Mr Coshott seeks declarations that the orders made on 3 February 2004 under the Uncollected Goods Act 1995 are invalid and that the issue of the Examination Summons on 25 May 2004 is invalid and/or an abuse of process. He seeks orders setting aside the orders of 3 February 2004 and the Examination Summons issued on 25 May 2004. 94 Mr Coshott submits that he was denied procedural fairness by the making of the orders under the Uncollected Goods Act 1995 on 3 February 2004. He contends that he had no notice of that hearing, although he has not filed an affidavit nor given evidence in support of that claim. He submits that the office of Mr Ryner was closed from 12 December 2003 until 6 February 2004 whilst Mr Ryner was overseas on holidays. An affidavit of Mr Ryner sworn 23 June 2004 supports this contention. Mr Coshott submits that it was not until two days after the horse was sold that Mr Ryner became aware that Shipton Lodge was seeking the orders contained in the application. 95 Mr Coshott submits that the application was not validly served and that the orders were obtained in denial of procedural fairness and ultra vires. He submits that the Examination Summons is infected by the same deficiencies as surround the making of the orders under the Uncollected Goods Act 1995. 96 He submits that there was a failure to ascertain the value of the horse in compliance with s.17(2) Uncollected Goods Act 1995. That provision restricts the jurisdiction of the Local Court to uncollected goods of a value which does not exceed the jurisdictional limit of that Court under the Civil Claims Act. Although the horse was ultimately sold for $319.00, Mr Coshott submits that the Court failed to consider this aspect of the application and relevant error is demonstrated. 97 Mr Coshott submits that there are other failures to comply with requirements of the Uncollected Goods Act 1995 involving a failure to specify the date from which the goods could be disposed of (s.9(3)(c)) and the failure of the bailee to prepare a record (s.15). 98 Mr Coshott submits that the Local Court had no power to order professional costs against him on the application in any event. Further, he submits there was no power to enter judgment on the application under the Uncollected Goods Act 1995 and to cause the issue of an Examination Summons as a consequence. He submits that the obtaining of the Examination Summons was undertaken for an improper purpose and constituted an abuse of process. 99 Mr Bradford submits that three is an impediment to Mr Coshott seeking declaratory and prerogative relief given that an appeal under s.69 Civil Claims Act was available by application of s.17 Uncollected Goods Act 1995. Mr Coshott has not appealed under s.69 Civil Claims Act in the Third Proceedings. So much is clear from his Summons and from the absence of any statement under Part 51A Supreme Court Rules. 100 Section 69(1) Civil Claims Act says that judgments and orders of a court exercising jurisdiction under that Act shall be "final and conclusive". Mr Bradford submits that this constitutes a privative clause so that Mr Coshott may not seek prerogative and declaratory relief. 101 Mr Bradford submits further that declaratory relief would not be granted, in any event, in this case. He submits that the object of a grant of a declaration is the determination of matters in controversy between parties and that a declaration which is not truly declaratory of any present right and which amounts only to an acknowledgement of the past infringement of a right to procedural fairness is rarely justifiable: Minister for Immigration and Ethnic Affairs v Ozmanion (1996) 141 ALR 322. He submits that, by operation of s.33 Uncollected Goods Act 1995, the common law relating to bailment of goods remains in force to the extent that it is not affected by the Act. Shipton Lodge was, as at 3 February 2004 if not earlier, an involuntary bailee of the horse and Mr Coshott should be taken, by implication, to have consented to the sale: Sachs v Miklos (1948) 2 KB 23 at 37. Consequently, Mr Bradford submits that there would no utility in granting a declaration of the kind now sought irrespective of the position under the statutory scheme. Mr Bradford submits, in any event, that as the horse was sold for $319.00, the de minimis principle should be applied: Nicholas Limited v Industrial Relations Commission of New South Wales and Ors [2004] NSWCA 359 at paragraph 73. It is also submitted that, in the event that Mr Coshott succeeded in obtaining declaratory relief, further litigation between the parties is at least a possibility and that is a factor which the Court should take into account in determining the way in which the Court's discretion should be exercised: Integrated Lighting & Ceilings Pty Limited v Phillips Electrical Pty Limited (1969) 90 WN (Pt 1) (NSW) 693. 102 Mr Bradford submits that the Local Court had jurisdiction to make an order under the Uncollected Goods Act 1995. That Act prescribes two means by which uncollected goods may be disposed. The first is by way of a court order under Part 2 of the Act and, the second, is after due notice is given to the bailor under Part 3: s.4(2). Shipton Lodge's application was made pursuant to Part 2 of the Act, and more specifically, pursuant to the right conferred under s.8(1) of the Act. Although s.8(2) and (3) required Shipton Lodge to serve a copy of the application on Mr Coshott, it is reasonably clear, on a reading of the Act as a whole, that those provisions do not prevent a bailee from obtaining an order for substituted service of that and other documents. 103 Mr Bradford submits that the procedural aspects of the application were governed by the Local Courts (Criminal and Applications Procedure) Rule 2003 which commenced on 7 July 2003. Part 6 of the Rule relates to service of documents and applies to these proceedings. Clause 35 enabled Shipton Lodge to apply for an order for substituted service of the application. In view of the difficulties experienced by Shipton Lodge with respect to the continued location of the horse on their premises, the difficulty in locating the residential address of Mr Coshott and the unwillingness of his then solicitor, Mr Ryner, to accept service of the application on his behalf, an application for substituted service was more than understandable. 104 An application for substituted service was made and obtained from the Court. Service was effected in accordance with that order. The fact that Mr Ryner may have been overseas for the relevant period does not, of itself, provide an evidentiary foundation for a finding of denial of procedural fairness to Mr Coshott. Mr Bradford emphasised that there was no affidavit or other evidence from Mr Coshott himself in support of these proceedings stating that he was unaware that the application was being brought before the Local Court. He submits that Mr Ryner's affidavit of 23 June 2004 does not establish Mr Coshott's ignorance of the pending application, nor does it explain the failure of Mr Coshott to adduce any evidence in these proceedings concerning his alleged ignorance of these matters. 105 Mr Bradford submitted that there was no failure to comply with any statutory requirement, and certainly no failure which would give rise to an entitlement to the relief sought by Mr Coshott. He submitted, in any event, that s.55 Local Courts Act 1991 would apply so that any irregularity did not nullify the proceedings. With respect to Mr Coshott's argument concerning the jurisdictional limit of the Local Court, Mr Bradford submits that it is pertinent that the horse, at public auction, realised the sum of $319.00. No basis for relief arises in this respect. 106 With respect to the order for professional costs, Mr Bradford submitted that the power to award costs arose under s.62 Local Courts Act 1982. 107 With respect to the Examination Summons, Mr Bradford submits that the order made in favour of Shipton Lodge for the payment of relevant charges is recoverable as a debt in the Local Court by virtue of s.14(3) Uncollected Goods Act 1995 and/or s.61 Local Courts Act 1982. Further, there was power to order costs against Mr Coshott under s.62 Local Courts Act 1982 including the power to determine the amount of those costs. That award is enforceable as a judgment of the Court in the same way as any other order for costs is enforceable as a judgment of the Court. Accordingly, there was power in the Registrar to issue the Examination Summons. Even if there was no power, Mr Bradford submits that the examination process should not be interfered with by this Court. Shipton Lodge presently has wholly unsatisfied judgments from the Local Court against Mr Coshott amounting to approximately $120,000.00 and is entitled, as a judgment creditor, to examine him for the purpose of identifying the means by which those judgments may be satisfied. 108 Mr Bradford submitted that the Amended Summons should be dismissed and an order should be made for the release to Shipton Lodge of the monies which Mr Coshott paid into Court ($6,838.34) pursuant to the undertaking given on 29 June 2004.

[70]

Decision 109 Although it was open to Mr Coshott to bring a statutory appeal to this Court under s.69 Civil Claims Act by way of s.17(3) Uncollected Goods Act 1995 he has not done so. Section 69(1) Civil Claims Act provided that any judgment or order of a Local Court shall be "final and conclusive". It is necessary to give effect to this privative clause when proceedings are brought in this Court seeking relief other than that available by that statutory avenue. 110 Nevertheless, privative clauses are to be construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts other than to the extent expressly stated or necessarily to be implied: Darling Casino Limited v NSW Casino Control Authority (1997) 191 CLR 602 at 633. Where a claim of denial of procedural fairness is made, it seems to me that relief in the nature of certiorari would be available if an entitlement to such relief is demonstrated on the facts of the case. 111 That said, there is authority in this Court for the proposition that the failure of a Plaintiff to exercise a statutory avenue of appeal may be taken into account for discretionary reasons where prerogative relief, which is discretionary in nature, is sought: Meagher v Stephenson (1993) 30 NSWLR 736 at 738-9; Hill v King at 656, 658-9; ASIC v Farley (2001) 51 NSWLR 494 at 500-501. 112 Mr Coshott bears the onus of proving an entitlement to relief. The principal basis upon which this relief is sought is the claim that he was denied procedural fairness in the making of the orders under the Uncollected Goods Act 1995. In considering whether Mr Coshott has discharged that onus of proof, I have regard to the lengthy history prior to December 2003 in which the solicitor for Shipton Lodge notified Mr Coshott's solicitor, Mr Ryner, of an intention to make a claim under the Uncollected Goods Act 1995 unless the horse was removed from Shipton Lodge's property. In the absence of any evidence from Mr Coshott, I accept that Mr Coshott was on notice that this was the desire of Shipton Lodge. It is clear that Mr Coshott took no steps to remove the horse from the property. Nor did he make any payments to Shipton Lodge for the continued agistment of the horse on their property. It was inevitable, in these circumstances, that an application under the Uncollected Goods Act 1995 would be made. 113 Although there is evidence from Mr Ryner that he was away from his office premises in the period when documents were served in accordance with the order for substituted service, I am not satisfied that this evidence demonstrates that these documents did not come to the attention of Mr Coshott either directly or indirectly. I have already observed that there appears to have been a common geographical location in 2003 of Mr Ryner's office premises and what was said to be Mr Coshott's place of employment. Most importantly, in the absence of any evidence from Mr Coshott swearing to his ignorance of the bringing of the application in late 2003 and early 2004, I am not prepared to find on the balance of probabilities that he was unaware of the currency of the proceedings. In these circumstances, I am not satisfied that there was a denial of procedural fairness to Mr Coshott. 114 With respect to the other procedural matters raised by Mr Coshott, I am not satisfied that any of them disclose an entitlement to relief as sought in the Amended Summons. Shipton Lodge had served Mr Coshott in accordance with the order for substituted service. Evidence was placed before the learned Magistrate which justified the making of an order under the Uncollected Goods Act 1995. I note that no argument has been advanced in these proceedings that the horse did not constitute "goods" for the purpose of that Act. Even if there were some irregularity in the proceedings, and no such irregularity has been demonstrated in this case, Shipton Lodge would be entitled to rely upon s.55 Local Courts Act 1982 so that any irregularity would not nullify the proceedings or any step taken in the proceedings. 115 I am satisfied that the Local Court had power to make an order for professional costs against Mr Coshott under s.62 Local Courts Act 1982. 116 With respect to the Examination Summons, I am satisfied that it was open to Shipton Lodge to seek the issue of the Examination Summons and it was open to the Registrar to issue such a Summons arising from the orders made by his Honour on 3 February 2004. Mr Coshott has not demonstrated any absence of jurisdiction to issue the Summons nor any other basis upon which the Court would grant the relief sought in the Amended Summons in this respect.

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