//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 1167
Supreme Court of NSW
2026-09-25
Roberts J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Demasi v State of New South Wales [2026] NSWSC 1167
Hearing dates: 14 May 2026
Date of orders: 25 September 2026
Decision date: 25 September 2026
Jurisdiction: Common Law
Before: Roberts J
Decision: (1) Leave to appeal out of time is refused;
(2) The amended summons is dismissed with costs.
Catchwords: APPEALS — Appeal from Local Court — Local Court Act 2007 (NSW), s 39(1) — Right of appeal on question of law — Whether the Magistrate erred by finding that a notice served under s 21(2) of the Pawnbrokers and Second-hand Dealers Act 1996 does not impose a duty of care on the authorised officer who issued the notice
APPEALS — Appeal from Local Court — Local Court Act 2007 (NSW), s 39(1) — Right of appeal on question of law — Whether procedural fairness was denied by the Magistrate’s failure to enquire whether the appellant was self-represented — Where a solicitor appeared on the appellant’s behalf — Where an obligation to enquire was said to arise due to the appellant’s participation in addressing the Court and conducting cross-examination
Legislation Cited: Evidence Act 1995 (NSW), s 63 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 216, 219 Local Court Act 2007 (NSW), s 39(1) Pawnbrokers and Second-hand Dealers Act 1996 (NSW), ss 3(1), 19, 21, 21(2), 19(1), 26(1) Uniform Civil Procedure Rules 2005 (NSW), rr 50.3(1), 50.12
Cases Cited: Alahmadi v Vakiloroaya [2026] NSWSC 752
Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199
Chalik v Chalik [2025] NSWCA 136
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27
Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134
Hamod v New South Wales and Anor [2011] NSWCA 375
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
Sinanovic v Bone [2026] NSWCA 41
Souaid v Nahas [2019] NSWSC 1132
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Category: Principal judgment
Parties: Cosimo Demasi (Appellant)
State of New South Wales (Respondent)
Representation: Counsel:
K McCallum (Appellant)
N Newton (Respondent)
Solicitors:
O’Connor Legal (Appellant)
Makinson d’Apice Lawyers (Respondent)
File Number(s): 2025/00454189
By amended summons filed 17 February 2026, Mr Cosimo Demasi (the appellant) seeks leave to appeal out of time from the Local Court decision of (then) Magistrate Nash (the Magistrate) [1] made on 21 May 2025, dismissing the appellant’s negligence claim against the State of New South Wales (the respondent) for damages.
The appellant relies upon two grounds of appeal expressed as follows:
The presiding magistrate made an error of law in finding the State of New South Wales did not owe the appellant a duty of care for the safe custody of his goods after the NSW Police had previously made an application against the appellant pursuant to s 216 and s 219 of Law Enforcement (Powers and Responsibilities) Act 2002;
The appellant was denied natural justice in that he had no sworn affidavit evidence at the hearing on 20 May 2025 and that the hearing ought to have been adjourned with leave granted to the appellant to file and service affidavit evidence in support of his amended statement of claim.
The appellant requires an extension of time in which to appeal: UCPR, rr 50.3(1)(c), 50.12. The appellant relies upon serious personal health issues and a lack of awareness of the time limits applicable to an appeal of this nature. The respondent opposes the extension of time principally on the basis of lack of merit in the appeal.
The appellant was represented in this Court by Ms McCallum of counsel, instructed by solicitors O’Connor Legal. Ms McCallum confirmed the correctness of the respondent’s understanding that the appeal was brought under s 39(1) of the Local Court Act 2007 (NSW), which relevantly provides:
39 Appeals as of right
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.
Despite the framing of ground 1, as the argument developed, the appellant sought to identify a question of law which engaged with the proper construction of s 21(2) of the Pawnbrokers and Second-hand Dealers Act 1996 (NSW) (the Pawnbrokers Act). It is convenient to set out the relevant legislative provisions before turning to the procedural history of this matter.
Sections 216 and 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) are contained within Part 17 Division 2 of that Act, and relevantly provide:
216 Application to property
(1) This Division applies to the following property—
(a) property that is in the custody of a police officer or member of the NSW Police Force in connection with an offence, whether or not proceedings for the offence have been commenced,
(b) property that is lawfully in the custody of a police officer or member of the NSW Police Force other than in connection with an offence.
(2) However, this Division does not apply to the following property—
(a) a dangerous article or dangerous implement to which Division 1 applies,
(a1) a substance to which Part 3A of the Drug Misuse and Trafficking Act 1985 applies or an article disposed of under section 39K of that Act.
(b) (Repealed)
219 Disposal of property on application to court
(1) A court may, on application by any person, make an order that property to which this Division applies—
(a) be delivered to the person who appears to be lawfully entitled to the property, or
(b) if that person cannot be ascertained, be dealt with as the court thinks fit.
(2) In determining an application the court may do any one or more of the following things—
(a) adjust rights to property as between people who appear to be lawfully entitled to the same property or the same or different parts of property (including adjusting rights by extinguishing, whether in whole or in part, any interests in the property of such persons),
(b) make a finding or order as to the ownership and delivery of property,
(c) make a finding or order as to the liability for and payment of expenses incurred in keeping property in police custody,
(d) order, if the person who is lawfully entitled to the property cannot be ascertained, that the property be forfeited to the Crown,
(e) make any necessary incidental or ancillary orders.
(3) Property ordered to be forfeited to the Crown—
(a) in the case of money, is to be paid to the Treasurer for payment into the Consolidated Fund, or
(b) in any other case, may be sold by or on behalf of the Commissioner at public auction and the proceeds of sale are to be paid to the Treasurer for payment into the Consolidated Fund.
(4) If the property is not money or is not fit or suitable for sale, or fails to sell at public auction, it is to be disposed of in accordance with the directions of the Commissioner.
(5) An order under subsection (2)(a) that provides for the extinguishment, whether in whole or in part, of any interest in property operates to extinguish the interest according to its tenor.
21 Retention of goods
(1) A licensee—
(a) must keep all second-hand goods purchased or received in the course of the licensed business for a period of 14 days on premises nominated or otherwise notified under section 12 or 12A as business premises or at such other places as may be determined by or in accordance with the regulations, and
(b) must not alter the form of the goods or dispose of them in any way, or allow them to be redeemed or part with possession of them, during that period.
This subsection does not apply to such goods, or in such circumstances, as the regulations may prescribe.
(1A) The period of 14 days commences with the day on which the purchase or receipt was recorded by the licensee.
(2) An authorised officer who has reasonable grounds to suspect that goods in the possession of a licensee have been stolen or otherwise unlawfully obtained may, by a notice specifying the goods, prohibit the licensee from altering the form of the goods or disposing of them in any way, or allowing them to be redeemed, or parting with possession of them, for a period of 56 days after service of the notice.
(3) A notice under subsection (2) may be reissued once for a further period of 56 days commencing on the expiry of the first notice.
(4) A licensee must comply with this section and with any notice under this section, and must see to it that no employee of the business does what this section or such a notice prohibits the licensee from doing.
Maximum penalty—50 penalty units.
authorised officer means—
(a) a police officer, or
(b) the Secretary, or
(c) an investigator appointed under section 18 of the Fair Trading Act 1987, or
(d) a person authorised in writing by the Secretary.
“I appeared for myself at the hearing although I was assisted on the day by a solicitor friend Mark Racca from Racca Lawyers. Mr Racca did not formally go on the record and assisted me on the day as a friend only.”
An unusual feature of this appeal is that there is a factual dispute between the parties which underpins ground 2 concerning whether the appellant was legally represented at the hearing before the Magistrate on 20 May 2025. The respondent objected to paragraph [18] on the basis that it contained disputed conclusions, in particular the conclusion that the appellant “appeared for [himself] at the hearing”, which was said to be the matter for determination of this Court. Counsel for the appellant responded that the statements should be admitted as evidence of the appellant’s state of mind, the first stage of reasoning toward the conclusion for which she contended. The paragraph was admitted on this basis. It is noted that the respondent did not seek to cross-examine the appellant. Counsel for the respondent stated that the cross-examination would merely involve putting to the appellant various portions of the hearing transcript which contradict his assertion, and explained that this could be done more efficiently by way of submission.
The respondent read the affidavit of Senuri Perera, affirmed 20 April 2026, which annexed Exhibit SJP-1, without objection.
Aside from the issue of the appellant’s status as legally represented or otherwise at the hearing below, the procedural history was essentially agreed.
On 23 March 2017, NSW police served a notice on a pawnbroker and auctioneer named Jason Tilley pursuant to s 21(2) of the Pawnbrokers Act prohibiting Mr Tilley (the pawnbroker) from disposing of certain property (the goods) for a period of 56 days after service. On 8 September 2017, NSW police filed a s 219 application in the Local Court, seeking an order that the goods be delivered to the persons lawfully entitled to them, or dealt with as the Court saw fit. That application was determined on 20 June 2018, after a hearing in Penrith Local Court before (then) Magistrate Corry.
The following extracts from the ex-tempore reasons for decision of Magistrate Corry provide helpful context against which to understand the background to the present matter:
“In this matter there is an application by police under s 219 of the Law Enforcement (Powers and Responsibilities) Act in respect of disposal of property, the property being the contents of a number of storage containers, the contents being various household goods, those goods having come into the hands of Mr Tilley of Penrith City Auctions at the end of 2016…
Mr Tilley contact[ed] police during the course of dealing with those goods after he became concerned about the question of ownership of the goods, he having found some documentation which was being relied upon by Mr Cosimo Demasi as establishing Mr Demasi’s interest in the goods which entitled him to have them sold at auction by Mr Tilley… they being Australian Van Line storage and removal invoices that mentioned another person in those invoices with a name Liliana. Mr Tilley rang the number of Liliana [Korlevska]. She claimed that she owned the goods. As a result of that and other matters involving a dispute between Mr Tilley and Mr Demasi, Mr Tilley contacted police about what occurred.
The police subsequently conducted an investigation in respect of the matter and had told Mr Tilley to hold on to the goods. The application by Detective Alcock today under s 219 of the Act is asking the Court to make an order as to whom are the goods lawfully entitled and during the course of the proceedings what became clear was that during the course of the transaction between Mr Demasi and Mr Tilley that substantially the goods had been auctioned so that the goods in specie no longer exist and all that remains is a sum of money representing those moneys which were attained as a result of [auctioning] the goods in the four storage containers and that amount being in the sum of $2,580.
The oral evidence of Mr Tilley is that the auction house is owed auction fees in respect of the auctioning of those items which, on his estimate, exceed the amount of moneys that he is currently holding. It is also clear that there is a dispute between Mr Demasi and Mr Tilley about not only the terms of the auction agreement and/or whether or not there was in fact an agreement on foot when the goods have subsequently been auctioned, the goods passing from Mr Demasi’s possession at the end of 2016 into Mr Tilley’s possession. It is not however my job to determine that particular issue as that is a matter for separate civil proceedings between the parties. As I have explained to Mr Demasi during the course of the proceedings I am only here to determine those matters under s 219 of the Act.
Turning to the evidence, the only party that appeared today was Mr Demasi and there was a statement tendered from Mr Demasi… Ms Korlevska, the other party who was contending for ownership of the goods… has not appeared today.”
By amended statement of claim dated 22 February 2024 filed in the Local Court at Penrith, the appellant sought damages pursuant to an initially unspecified cause of action, identified during the proceedings as a claim for negligence, against the State of NSW. He claimed that police had seized and failed to return his property. He sought damages for the alleged value of the property plus interest. The matter was heard on 20 May 2025, and on 21 May 2025, the Magistrate gave judgment dismissing the appellant’s claim. It is from that decision that the appellant now seeks leave to appeal.
The determinative issue before the Magistrate was whether the police ever had custody of the goods in order to give rise to a duty for their safekeeping. The appellant relied upon the s 219 application prepared and advanced by Detective Timothy Alcock in the proceedings before Magistrate Corry. Those proceedings were initiated by filing a form titled “Application for disposal of property” identified as being “lodged” under s 219 of LEPRA, seeking an order that “the property be delivered to the person who appears to be lawfully entitled to it, or if that person cannot be ascertained, be dealt with as the court thinks fit”. Under the heading “Grounds for Application”, the form states that “[t]he property; is in police custody in connection with an offence”. The form was signed by Detective Alcock on 15 August 2017. The appellant submitted that this established that the police had the goods in their custody.
An affidavit of Detective Alcock dated 27 February 2025 was read without objection. The affidavit explained that Mr Jason Tilley, the owner of Penrith City Auctions, had submitted a fraud report to NSW police on 2 January 2017. The ensuing investigation concerned an allegation by Ms Liliana Korlevska that the appellant had taken four shipping containers of her property from Victoria (where she lived) to NSW, without her consent. Detective Alcock liaised with Victoria police, who reportedly considered the matter a civil dispute and declined to pursue any charges. No charges were pursued in NSW. Annexed to Detective Alcock’s affidavit was a statement from Jason Tilley dated 17 March 2017. It set out the history of his dealings with the appellant and the goods. It annexed certain receipts from Penrith City Auctions relating to him taking the goods into custody, and his sale of the goods. In Mr Tilley’s statement, he indicated that he had sold the goods over four auctions in December 2016 and January 2017, and a sum of $2,580 remained.
On 23 March 2017, Detective Alcock served the Notice referred to above under s 21(2) of the Pawnbrokers Act prohibiting the disposal of “numerous goods relating to Cosimo Demasi and Lilliana Korlevska”. Detective Alcock deposed that on 8 September 2017, he filed two applications in the same terms (one addressed to the appellant and one to Ms Korlevska) pursuant to s 219 of the LEPRA “asking the Court to determine who owned the Goods”. Paragraph [16] of Detective Alcock’s affidavit stated:
“I never seized the Goods, nor did any officer of NSWPF ever seize the Goods. The Goods were never transported to a Police Station or to a holding yard run by the NSWPF. The NSWPF never had custody of the Goods.”
“Q. And from this [affidavit] - and you said that it’s been - and in paragraph 16, you said that, “I never seized the goods”, but in your [s 219] application you said you had the custody of the goods?
A. We had a hold on the goods, so that they weren’t to be disposed of.
Q. Pardon?
A. We had a - had a hold on the goods, so that they’re not to be disposed of from the auction house.
Q. So you got hold of the goods?
A. I didn’t have hold of the goods, your Honour. There’s a hold on the goods that they’re not to be disposed of.
Q. Then, why did you state it in your [s 219] application that you had custody of the goods?
A. Well, we were under the control of them, because we had the hold, though.
HIS HONOUR
Q. So if you [the goods] were under [your] control, Mr Allcock, wouldn’t you not let [the] goods go until the Court - final Court orders?
A. That’s what I brought it to Court for: for the orders.
Q. So where are the goods now?
A. I can’t answer that question, your Honour.” (Emphasis added)
In response to a later question from the Magistrate, Detective Alcock explained that his reference to “the hold on the goods” was a reference to the Notice he had served upon Mr Tilley pursuant to s 21(2) of the Pawnbrokers Act.
In the hearing on 20 May 2025, the respondent initially sought to tender a transcript of the evidence that Mr Tilley had given before Magistrate Corry on 20 June 2018. The application to tender the transcript was advanced pursuant to s 63 of the Evidence Act 1995 (NSW) on the basis that Mr Tilley was an unavailable witness within the meaning of that provision. There had been unsuccessful attempts made to serve Mr Tilley with a subpoena to attend and give evidence in the hearing before Magistrate Nash. The application was opposed by the appellant and was ultimately withdrawn.
The appellant did not provide an affidavit nor give any oral evidence. He tendered a bundle of documents which included the s 219 application in which Detective Alcock had asserted that he had custody of the goods.
The appellant submitted that the s 219 application should be considered determinative evidence of the fact that police had custody of his goods. This rendered the police responsible to the appellant for his losses as a result of not having his goods returned to him following the determination by Magistrate Corry that the appellant was the owner of the goods.
The respondent submitted that the evidence in the proceedings before the Magistrate established that, despite what had been stated on the s 219 application form, (i) the police had never had custody of the goods, and (ii) the s 219 application was made by police to have the court determine the true owner of the goods as between the appellant and Ms Korlevska; and (iii) whether or not it was known to Detective Alcock, the goods had in fact already been sold in accordance with private contracts between the appellant and Mr Tilley by the time that the Notice was served. In those circumstances, the appellant could not establish that the police owed any duty of care in respect of the goods, nor had breached any duty if one existed.
On Wednesday 21 May 2025 the Magistrate gave his reasons for judgment (the primary judgment). It is convenient to reproduce the dispositive reasoning in the primary judgment:
“I now turn to my findings in the matter. Being civil proceedings, the plaintiff bears the onus of proof and must satisfy the Court on the balance of probabilities that the cause of action, or causes of action, on which the claim is based, have been made out. Here, it was stated unequivocally on the record yesterday that the only cause of action relied upon was that in negligence. In this respect, it is appropriate to proceed on the basis that “actual persuasion” of the occurrence or existence of a fact in issue is required under s 140 of the Evidence Act: see, for example, the decision of Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 at [44]-[47].
There is a tension between, on the one hand, the earlier application under s 219 of LEPRA and Mr Alcott’s evidence in para 16 of his affidavit. Although repetitive, I will outline again, given its importance in these proceedings, the content of para 16. I repeat:
“I never seized the goods, nor did any officer of the New South Wales Police Force ever seize the goods. The goods were never transported to a police station or to a holding yard run by the New South Wales Police Force. The New South Wales Police Force never had custody of the goods.”
Section 219 of LEPRA is contained in pt 17 div 2. Section 216 of LEPRA is also within pt 17 div 2 and it provides as follows:
“(1) This division applies to the following property:
(a) property that is in the custody of a police officer or member of the NSW Police Force in connection with an offence, whether or not proceedings for the offence have been commenced,
(b) property that is lawfully in the custody of a police officer or member of the NSW Police Force other than in connection with an offence.”
The tension to which I have just referred will be apparent from having read para 16 of the affidavit and s 216 of LEPRA. An application under s 216 of LEPRA necessarily proceeds on the basis that the subject goods are in police custody. Paragraph 16 of Mr Alcott’s affidavit asserts the goods were never in police custody. The plaintiff must prove, by reference to the evidence adduced in these proceedings, that each of the elements of the claim in negligence have been made out. Although the earlier Local Court proceedings inherently proceeded based on an assertion and acceptance of fact by police that they had custody of the goods that were ultimately found to be owned by Mr Demasi, in the present proceedings, that same basis is not contended, as is clear from para 16 of Mr Alcott’s affidavit.
The plaintiff’s case here is that in the earlier proceedings, the police had accepted that they had custody of the goods and that this must be taken to be an admission of responsibility for those goods, but as I have said, the present proceedings are separate to the earlier proceedings. The factual matters that must be proved to establish the cause of action in negligence must be done so independently of any earlier expression [express] or implied finding in separate proceedings. It must also be observed that the Court’s decision in the earlier proceedings is of a confined nature. The only order that the Court made in those earlier proceedings was that Mr Demasi was the owner of the subject goods, therefore, nothing about the order itself can be carried forward to the present proceedings in such a way as to influence the Court’s findings about the actions or admissions of police insofar as concerned their asserted custody of the goods. I accept, however, that the Court’s final order in the earlier proceedings however, that Mr Demasi is the owner of the goods, represents, in the absence of any appeal from that decision, a final judicial determination as to that question, namely the question of ownership.
At the risk of repetition, this is to be contrasted with the express, or necessarily implied, findings of fact made in those earlier proceedings which, as I have said, inherently included, by reason of the application of s 216 of LEPRA, that police had custody of the goods. The plaintiff in these proceedings has not proved, either through his own evidence, which is limited to the documents contained in exhibit 1, or by undermining in cross-examination the evidence contained in para 16 of Mr Alcott’s evidence that, in fact, police did have custody of the goods belonging to Mr Demasi at any time.
Another substantive step police took was to serve on Mr Tilley on 23 March 2017, as I have referred to earlier, a notice under s 21 subs (2) of the Pawnbrokers and Second-h**and Dealers Act 1996, which is set out in annexure C of Mr Alcot’s affidavit. Section 21 subs (2) of the Pawnbrokers and Second-hand Dealers Act 1996 provides:
“An authorised officer who has reasonable grounds to suspect the goods in the possession of a licensee have been stolen or otherwise unlawfully obtained may, by a notice specifying the goods, prohibit the licensee from altering the form of the goods or disposing of them in any way, or allowing them to be redeemed, or parting with possession of them, for a period of 56 days after service of the notice.”
In my view, the decision by police to serve the notice under s 21 subs (2) of Pawnbrokers and Second-hand Dealers Act 1996 did not cause police to assume any obligations with respect to the safekeeping of Mr Demasi’s goods. The notice only operated as a 56 day moratorium applying to Mr Tilley and any decision he might have made to alter the form of the goods or dispose of them in any way, or by allowing them to be redeemed, or parting with possession with them. Further, in my view, for the reasons I have given, the bringing of the earlier proceedings under s 216 of LEPRA does not constitute an admission, nor does it constitute a finding of fact in the present proceedings, that police had custody of the subject goods. On the plaintiff’s case, everything hinges on proof that police had custody of the subject goods because without this, it appeared to me, to be accepted that no duty of care would otherwise exist and police could not have been said to be in breach of any such duty.
In my view, unless police exercised some statutory or common law power over the subject goods, it cannot be said that they assumed some legal obligation of care and protection or control of the goods to ensure that they would be returned to their rightful owner, in this case, Mr Demasi. In the confines of these current proceedings, there is no evidence to displace or impugn what Mr Alcott said at para 16 of his affidavit and accordingly, notwithstanding the assumptions embedded within the earlier proceedings as to police custody of the goods, police did not have custody of the goods such as to give rise to a duty of care owed to Mr Demasi. Even if, contrary to this finding, a duty of care of some type was owed on the basis police did have custody of the goods, I find it has also not been proved on balance that the duty was breached.
A breach involves, necessarily, an element of fault. The mere non-return of the goods to Mr Demasi would not be sufficient. There is no evidence as to how police were said to have breached any such duty, such as by reference to the precautions taken, or lack thereof, to protect and secure the goods to enable them to be released back into Mr Demasi’s custody and possession. In this respect, and although not important to my findings, I also note that the evidence appears to show the goods were disposed of, or could not be sold at auction, before the initial fraud report to police was made with respect to the goods, being the document appearing at annexure A to Mr Alcott’s affidavit dated 2 January 2017. In this respect, see p 35 through 52 of Mr Alcott’s affidavit, being the receipts for the relevant goods by reference to the auction outcomes on each respective date, being 3 December 2016, 10 December 2016 and 17 December 2016.
The exception to this is the receipt relating to an auction on 7 January 2017 which post-dates the fraud report but which is, in relative terms, for the modest sum of $115. Further, the tax invoice/statement contained in exhibit 1 is not sufficient to prove the measure of damages suffered by the plaintiff in the event that it was otherwise proved that police breached their duty of care to the plaintiff in respect of the goods. The document is a bare assertion that the value of a range of unspecified items, said to be contained in four containers, amounts to $45,000. No particulars are provided as to how that sum was calculated, nor are the goods itemised and, further, it is not supported by any valuation evidence. As I said earlier, the Court must be actually persuaded on the occurrence or existence of a fact in issue and this material is, in my assessment, deficient in meeting that threshold for the reasons I have just given.” (Emphasis added)
Section 39(1) of the Local Court Act confines an appeal as of right to this Court “on a question of law”. In Alahmadi v Vakiloroaya [2026] NSWSC 752 at [108], Chen J observed that previous authorities establish that there is no clear, universal test available to define a question of law: see also Attorney*-*General for the State of N**ew S**outh W**ales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [25]. The precise characterisation of the argued error of law (and the question of law) raised will be important (at [108]). As Basten J explained in Souaid v Nahas [2019] NSWSC 1132 at [3], what is clear is that there is no right of appeal, with or without leave, from findings of fact.
As pleaded, and initially argued in writing, ground 1 did not disclose an error (or question) of law. During the hearing of the appeal, Ms McCallum conceded on the appellant’s behalf that it was open to the Magistrate to make the factual finding that his Honour did, namely, to accept the evidence of Detective Alcock that the police never at any time had physical custody of the goods, despite what was asserted on the s 219 application form. Recognising that the appeal advanced is limited to a question of law, Ms McCallum appropriately did not press an argument that the Magistrate had come to an erroneous factual conclusion in this respect.
Ms McCallum sought to advance a different point under this ground. She argued that the following finding of the Magistrate involved legal error:
“… the decision by the police to serve the notice under s 21(2) of Pawnbrokers and Second-hand Dealers Act 1996 did not cause police to assume any obligations with respect to the safekeeping of Mr Demasi’s goods”.
Ms McCallum submitted that s 21(2) imposes an obligation upon the authorised officer who has served the notice to ensure that the goods are not disposed of in breach of that notice. Ms McCallum submitted both as a matter of statutory construction and as a matter of common law principle, this Court should find that the service of the s 21(2) Notice caused the police to assume a legal obligation of safekeeping over the appellant’s goods.
The respondent submitted that to the contrary, s 21(2) was a provision which empowered a police officer to act in particular circumstances but did not impose an obligation upon police beyond the issuing of the notice. As to the question of a common law duty, an argument not further developed by the appellant, the respondent made reference to the principle that police do not owe a duty of care to the subject of an investigation, citing Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35; Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59. The respondent submitted in the alternative that if there was any error it was not a material error in light of the facts (not challenged in these proceedings) that (i) the police did not have physical custody of the goods; and (ii) the goods had in any event been disposed of prior to the issue of the Notice.
The appellant’s reformulated argument concerns a question of statutory construction. Although no question of law was formally identified by the appellant, I considered it appropriate to proceed on the basis that one could readily be formulated by reference to the argument the appellant seeks to make about the legal effect of the statutory provision, particularly in circumstances where the respondent did not oppose the reformulation of the ground.
“… primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.” (Footnote omitted)
Whilst there may be circumstances in which the literal meaning of words in a statute do not correspond with their legal meaning (Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134 (Bell CJ, Meagher and Kirk JJA agreeing) at [14]) or where it may be said that it is necessary to construe a provision to accord with its purpose rather than its literal terms (Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9), it is unnecessary in this case to consider those principles further. Although the appellant’s argument required this Court to carry out the task of construing s 21(2), the appellant did not advance any legal argument in support of his proposed construction of s 21(2) beyond the plain assertion that by serving the Notice, police assumed a legal obligation over the goods the subject of the Notice. As will be demonstrated, neither the text nor the purpose of s 21(2) support the appellant’s contention.
The long title to the Pawnbrokers Act provides that it is:
“An Act to provide for the licensing and regulation of pawnbrokers and dealers in certain classes of second-hand goods; to repeal the Pawnbrokers Act 1902; the Second-hand Dealers and Collectors Act 1906 and the Hawkers Act 1974; to amend certain Acts consequentially; and for other purposes.”
The High Court observed in Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 at [12] that “the 1996 Pawnbrokers Act may be seen as part of a long line of legislation for the regulation of particular kinds of occupation concerned with used goods”.
Part 2 of the Pawnbrokers Act contains provisions concerned with the licensing of pawnbrokers and second-hand dealers. There was no dispute in the present case that Mr Tilley operated a business licensed under the Pawnbrokers Act or was relevantly a licensee.
Section 21 is located in Part 3 of the Act, which is titled “Regulation of licensed businesses”. Part 3 includes requirements to display licence details (s 14); to keep records of all relevant transactions (s 16); and to produce those records as required by an authorised officer (s 17). Section 19(1) provides:
19 Duty to report suspicious goods
(1) A licensee, and any employee of a licensee, who suspects for any reason that goods in the custody of the licensee or employee in the course of the licensee’s business, or goods that are offered to the licensee or employee for sale or pawn, may have been stolen or otherwise unlawfully obtained must without delay inform an authorised officer of the cause of that suspicion.
Maximum penalty—50 penalty units.
Provisions in Part 3 empower authorised officers to require the production of records, to produce goods for inspection, to seize records and to enter premises to inspect goods “at any reasonable time”.
It can therefore be seen that Part 3 imposes various obligations upon licensees and empowers authorised officers to take certain action directed toward enforcement of those obligations. Section 26(1) provides:
26 Penalty notices
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
As defined, an authorised officer includes not only police officers, but also the Commissioner for Fair Trading (or the Secretary of the Department of Customer Service); or other statutorily appointed or authorised civilian investigators.
Returning to s 21, it can be seen that, consistently with the overall purposes of the Pawnbrokers Act, s 21 imposes an initial automatic obligation upon licence holders to keep all second-hand goods received for 14 days, before they can be disposed of or redeemed or dealt with in any other way. That period can be extended by action of an authorised officer serving a notice which will have effect for a period of 56 days after service (and which can be reissued for a further period under s 21(3)). The entitlement of an authorised officer to serve such a notice is enlivened by that officer having “reasonable grounds to suspect that goods in the possession of a licensee have been stolen or otherwise unlawfully obtained”: Pawnbrokers Act, s 21(2).
Notice having been served, s 22(4) then imposes an obligation upon a licensee to comply with the requirements of the Notice. Of note, s 22(4) expressly states that the licensee is to “see to it” that no employee of their licensed business breaches the provision. A penalty of 50 penalty units can be imposed by an authorised officer for a breach.
The Pawnbrokers Act as a whole has the purpose of regulating the business conduct of those who deal in second-hand goods and related business as defined by the Act. Police and other authorised officers are given powers to advance those purposes. This extends to powers to issue penalties for offences against the Act. On occasion, the police might exercise powers under the Pawnbrokers Act in conjunction with other lawful purposes and duties, including the investigation of criminal offences. Within that context, s 21 is specifically directed toward preventing a pawnbroker from disposing of suspected stolen goods that he has received, for a period of time while the matter is investigated (inferentially, so that there is potential for the goods to be returned to their lawful owner or otherwise dealt with lawfully).
The powers and duties of an authorised officer on the one hand and the obligations of a licensee on the other, are distinct. The power of police to prevent a pawnbroker from disposing of goods in the custody of a pawnbroker is limited to the threat of a penalty for non-compliance. The appellant was unable to advance any sensible textual or purposive reading of s 21 which would yield the result for which the appellant contends: that upon service of a notice, the obligation that the notice imposes upon the licensee to ensure that goods in the licensee’s possession are not disposed of becomes the obligation of the authorised officer who issued the notice.
In the present case, the fraud report made by Mr Tilley to police in January 2017 may have been made in compliance with the pawnbroker’s duty under s 19 (although the evidence is silent on this). Again, although there is no direct evidence of this, there is a strong inference that this fraud report or the ensuing investigation gave rise to the reasonable grounds upon which Detective Alcock suspected that the goods in Mr Tilley’s custody may have been stolen or unlawfully obtained (by the appellant). On 23 March 2017, Detective Alcock served the Notice which placed an obligation upon Mr Tilley not to dispose of or deal with the goods subject to the Notice. It later became clear that by the time of issue of the Notice, the goods had already been sold, rendering the Notice otiose. This was the finding made by the Magistrate in his judgment set out above, based upon the evidence before his Honour.
This fact concerning the auction dates arguably rendered the present construction argument an arid debate, as it would have been difficult for the appellant to establish that the error advanced was material to the Magistrate’s decision in any event. As it appears Magistrate Corry sought to explain to the appellant, the gravamen of his dispute appears to be with Mr Tilley. Questions concerning the true value of the goods and whether there was compliance with the contractual terms between the appellant and the pawnbroker did not arise for determination in the proceedings before the Magistrate and do not play any part in the determination of the legal question arising under this ground.
The appellant advanced no authority in support of his contended reading of s 21(2), nor satisfactorily explained how his proposition was consistent with either the text or purpose of s 21(2) construed within the Act as a whole. Contrary to the appellant’s argument, I find that s 21(2) of the Pawnbrokers Act does not impose a legal obligation upon the authorised officer to ensure the safekeeping of the goods the subject of a Notice. The proper construction of s 21(2) does not support the appellant’s contention of legal error.
This ground of appeal must fail.
No question of law was identified by the appellant as arising under this ground of appeal. In Sinanovic v Bone [2026] NSWCA 41, Payne JA and Price AJA stated at [12] that “[a] failure to accord procedural fairness falls within the scope of an appeal limited to a question of law: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [38]”. If there is any jurisdictional uncertainty attending this ground of appeal, it is unnecessary to resolve. Following consideration of the appellant’s complaints, the ground cannot succeed.
In advancing this ground, the appellant commences from the proposition that he was not legally represented at the hearing of the appeal and was therefore owed the duties and obligations imposed upon a trial court towards an unrepresented litigant. It is well-established that a trial judge has an obligation to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court to ensure that their trial is fair: SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146; Hamod v New South Wales and Anor [2011] NSWCA 375. In Chalik v Chalik [2025] NSWCA 136 (Bell CJ, Payne and Free JJA) the Court of Appeal stated at [69]:
“The question of the extent, if any, of assistance which a trial judge or appellate court should afford to an unrepresented litigant in civil proceedings is nuanced and has been the subject of many intermediate appellate judgments of this Court since Rajski was decided almost 40 years ago. Those decisions have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place: see, for example, Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 at [48]; Jeray v Blue Mountains City Council [2010] NSWCA 153 at [14]. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39], citing Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 1119 at [18] per Lord Sumption.” (Emphasis in original)
It is in this context that the appellant submits that the Magistrate denied the appellant procedural fairness in a number of ways enumerated in both written and oral submissions (and which extended beyond the particulars identified in the ground as pleaded). Counsel for the appellant made clear that each of the complaints were premised upon the appellant being self-represented.
The respondent does not accept this premise. The respondent asserts that a plain reading of the transcript of proceedings before the Magistrate clearly demonstrates that a solicitor named Mr Racca appeared on the appellant’s behalf. In the respondent’s submission, this is not effectively contradicted by any assertion in the appellant’s affidavit, including the claims, not further explained, that Mr Racca was assisting the appellant “as a friend only” or that Mr Racca “did not formally go on the record”.
Although not expressed in the pleadings, part of the appellant’s argument depended upon acceptance that there was a positive obligation placed upon the Magistrate to actively inquire into the arrangements between the appellant and Mr Racca. This arose due to what was said to be the “unusual” feature of the hearing, which was that at times both the appellant and Mr Racca would address the Court interchangeably.
As noted above, on 22 February 2024 the appellant filed his amended statement of claim in the Local Court at Penrith, nominating the Commissioner of Police as the defendant (this was later amended to the State of New South Wales). On 21 May 2024, the State filed its defence, the essence of which was that it was not liable as it had never had custody of the appellant’s property. On 31 July 2024, the Local Court made procedural orders including as to dates for the filing of hard copy evidence by both parties. On that date the hearing was listed for 20 May 2025.
The appellant failed to comply with the procedural orders and did not file any evidence. On 3 March 2025, the State filed the affidavit of Detective Alcock. On 19 March 2025, the matter was listed for what is referred to as a compliance hearing. On that date, the appellant appeared self-represented before Magistrate van Zuylen. He was granted leave to file in court a bundle of documents that he proposed to rely upon as evidence. The transcript of 19 March 2025 then records the following exchange:
“HIS HONOUR: So as far as you’re concerned, you’re ready to proceed to the hearing in May?
PLAINTIFF: Yes. I’ll just try - your Honour, because I didn’t know this was happening with the solicitor**, I’ll just try and get some legal representation by then, if that’s okay.**
HIS HONOUR: Do you intend to be legally represented for the hearing or not?
PLAINTIFF: Hopefully I can, yes.
HIS HONOUR: The Court’s set it down for hearing.
PLAINTIFF: Yep, by May.
HIS HONOUR: You fully understand it’s the hearing?
PLAINTIFF: Yep. If not, I’ll just come and do it myself, that’s all.
HIS HONOUR: I’ll just record it as follows. Plaintiff intends getting legal representation. Is that right?
PLAINTIFF: Yes.
HIS HONOUR: But if not, is prepared to consider acting on your own behalf.
PLAINTIFF: Yes.” (Emphasis added)
“IN THE LOCAL COURT
PENRITH
MAGISTRATE NASH
TUESDAY 20 MAY 2025
2023/00299065 - COSIMO DEMASI v COMMISSIONER OF POLICE, NSW POLICE FORCE
Mr Racca for the Plaintiff
Mr Searson for the Defendant
---
SEARSON: Your Honour, I might mention the matter of Demasi and currently the Commissioner of Police.
HIS HONOUR: Yes, thank you.
SEARSON: I represent the Commissioner of Police and the State of New South Wales in that matter.
HIS HONOUR: Thank you.
SEARSON: Can I indicate, your Honour, you may have paperwork in relation to a notice of motion for various reasons to dismiss and/or set aside.
HIS HONOUR: Yes.
SEARSON: We are no longer seeking to move on that motion.
HIS HONOUR: Was that the summary dismissal?
SEARSON: Yes.
HIS HONOUR: Right, I see.
SEARSON: We’re happy for the matter to proceed as it ordinarily would.
HIS HONOUR: Understood.
SEARSON: The one perhaps issue that the Court may have a view upon is that there were previous orders that Mr Demasi provide hard copies of the evidence that he intends to rely on. He has provided us with some evidence, but there is no affidavit and/or statement from Mr Demasi that we have received.
HIS HONOUR: Is this Mr Demasi? Yes. Thank you.
SEARSON: As I understand it, he is represented by the gentleman sitting next to me.
HIS HONOUR: Right, sorry.
SEARSON: So whilst I will indicate that the defendant is content to proceed with the matter by way of the plaintiff perhaps giving evidence by way of viva voce evidence, but that may be an issue for the Court. I’m simply indicating that we’re happy to proceed that way if the Court please.
HIS HONOUR: As in there’s no objection to him giving some oral evidence?
SEARSON: No.
HIS HONOUR: Yes. All right. Now, I assume there may be another issue about the non-attendance today of Mr Tilley.
SEARSON: There is. We’ve served a notice to seek to read and/or tender his evidence in circumstances where we say he’s an unavailable witness. We’ve got some evidence in relation to attempts to serve documents upon him. We have his evidence.
HIS HONOUR: Yes.
SEARSON: And there is a common position ultimately if that is not dealt with the way in which I envisage it should be, it may be able to be dealt with by way of me cross-examining the plaintiff at any rate.
HIS HONOUR: Right, okay. So where does that leave us from your perspective?
RACCA: Yes, your Honour. I believe that the applicant already provided some documents, as mentioned by my friend here, concerning his evidences in order to prove that he is entitled to the possession of the goods.
HIS HONOUR: So from your perspective, the matter is ready to proceed?
RACCA: Yes, ready to proceed.
HIS HONOUR: Okay, right. Well, that’s good. Okay. All right. Just before we do that, I have another matter that’s just in for mention today on a motion. I’ll just quickly see if that’s ready for just a short mention.
MATTER STOOD IN LIST
SEARSON: Thank you, your Honour. Another issue for the defendant is that the Commissioner of Police has been named as the defendant.
HIS HONOUR: Yes.
SEARSON: I invite the plaintiff to seek to amend the defendant to the State of New South Wales.
RACCA: Yes, your Honour. I agree to that because it was the statement of claim prepared personally by the applicant, and he based his claim on the application made to the Court by the police, so he made the Commissioner a defendant in this case, your Honour.
HIS HONOUR: All right, so I’ll note there’s no opposition that the name of the defendant will be now the State of New South Wales.
SEARSON: Court please.
HIS HONOUR: Okay. All right. Okay, so what should I have before me?
SEARSON: Your Honour, we may, depending on what evidence is called by the plaintiff, rely on an affidavit of a Timothy Allcock and an unsworn affidavit by a Jason Tilley. I don’t seek to rely, noting that the motion is no longer moved, on the affidavit of Jessica Van Leven of 19 March which should reduce the amount of reading for your Honour, but at this stage, I wish to reserve my position as to whether or not we will rely. I’d like to see what case is actually produced by the defendant first.
HIS HONOUR: Okay, yes.
SEARSON: But I can confirm your Honour has got the file documents, thank you.
HIS HONOUR: I’ve got two copies. All right, so I have the affidavit of Timothy Allcock, all right, and Jason Tilley. Okay. All right. Well, let’s start with you Mr, is it Racca?
RACCA: Racca.
HIS HONOUR: Racca, thank you. Did you have some evidence, Mr Racca?
RACCA: Yes.
HIS HONOUR: Yes.
PLAINTIFF: Your Honour, could I just - I’ve just got the application that I had been awarded to - the goods were mine, my possession--
HIS HONOUR: Yes.
PLAINTIFF: --by Mr Corey. I’ve also got the application that the police relied on, application to the Local Court of law enforcement and powers of attorney which clearly states, the police state that they had the goods all in their possession and they brought me to Court regarding this. So I’ve gone through the whole lot and everything, and now the goods have all gone.
HIS HONOUR: Can I just ask, notwithstanding your position, Mr Searson, on the withdrawal of the motion, it’s still your contention, consistent with the defence, that the now State of New South Wales is not an appropriate party?
SEARSON: No, we say the State of New South Wales is.
HIS HONOUR: Yes.
SEARSON: The Commissioner of Police was not, so that has been remedied.
HIS HONOUR: Right, okay. But in terms of the substance of the motion.
SEARSON: In terms of the substance of the motion, our case is, your Honour, that the New South Wales police force was never in custody or possession.
HIS HONOUR: That’s the point I’m trying to make.
SEARSON: Yes.
HIS HONOUR: You’ve made it more quickly than I have, and really what I’m referring to is the defence para 5 and 8.
SEARSON: Excuse me, your Honour.
HIS HONOUR: 5A has been cured.
SEARSON: That’s right. But 5B is still relied upon.
HIS HONOUR: 5B remains.
SEARSON: Yes.
HIS HONOUR: And 8 obviously remains as well.
SEARSON: 8A is no longer --
HIS HONOUR: 8A is no longer pressed.
SEARSON: Well, no longer relied upon, but B to E is still okay.
HIS HONOUR: Yes. That makes things clearer. And of course para 2. I mean, I’m not expressing any final views on anything, Mr Racca, but has thought been given to this issue?
RACCA: Frankly, your Honour, I don’t have the notice of motion given to me by my client, so I have not read the notice of motion because he only provided the affidavits of Van Leven, and then other stuff, but I don’t have a read with the motion that been referring to, your Honour.
HIS HONOUR: Because it seems to me as though police have, what, just got involved because they made the 219 application under LEPRA.
SEARSON: Yes.
HIS HONOUR: And the Court made a determination that Mr Demasi is the owner of the product, the goods.
RACCA: Yes, your Honour.
HIS HONOUR: That’s the only involvement police have had.
RACCA: Yes, because based on the application made by the police - have you had the documents, your Honour, provided by my client?
HIS HONOUR: Yes.
RACCA: Because he told me that he provided it before. If you look on p 2, your Honour, in the description of the property.
HIS HONOUR: Sorry, whereabouts?
RACCA: Page 2 of 4 in the application to the Local Court made by the police, your Honour.
HIS HONOUR: All right. Let me just get that.
RACCA: By Timothy Allcock.
HIS HONOUR: So if I go to the Timothy Allcock affidavit.
RACCA: No, the application made to the Court, your Honour.
HIS HONOUR: Where will I find that?
PLAINTIFF: I handed that to you, your Honour, last time as my evidence.
HIS HONOUR: Right. Well, let me just--
SEARSON: If I can assist, the application starts on p 13 of the plaintiff’s evidence. I think he’s referring to what’s on p 14.
RACCA: Yes, p 14, your Honour.
HIS HONOUR: Page 14, I see, right. So this bundle of material is the plaintiff’s evidence.
SEARSON: Yes, your Honour.
RACCA: Yes, your Honour.” (Emphasis added)
The following may immediately be observed with respect to the above extract. Mr Searson, counsel for the respondent, identified Mr Racca as representing the plaintiff. This was not contradicted by Mr Racca or by the appellant (the plaintiff). The Magistrate addressed Mr Racca with questions about the procedural history, the evidence and issues in the hearing. Mr Racca responded using language conventional for a solicitor addressing a court on behalf of a party. He referred to Mr Searson by nomenclature often adopted between legal representatives appearing as opponents; namely “my friend”. He referred to the appellant as “my client”. Nothing in this portion of the transcript gave rise to any basis (nor indeed any justification) for the Magistrate to query the arrangement. The fact that Mr Racca did not formally announce his appearance created no ambiguity in the context of the full exchange.
The particular complaint giving rise to the asserted denial of procedural fairness concerns the absence of affidavit evidence from the appellant in support of his statement of claim. As can be seen from the above exchange, this topic was raised by counsel for the respondent early in the hearing, who indicated that he would not object if that was remedied by way of oral evidence. The Magistrate permitted the appellant to tender the 17-page bundle of documents that he had filed in court on 19 March 2025, despite not being produced by way of affidavit. The bundle included the s 219 application upon which the appellant relied for his central contention concerning police custody of the goods. Counsel for the respondent then sought to cross-examine the appellant. The following exchange occurred:
“SEARSON: Your Honour, I seek to cross-examine the plaintiff.
HIS HONOUR: Right, okay. Well, let’s do that now. I mean, it is slightly odd because he hasn’t actually, in his material, made a statement or an affidavit but.
SEARSON: No. I seek to cross-examine him, though, on the contents of the document which have been tendered.
HIS HONOUR: Yes. All right. Mr Racca, is there any issue with Mr Demasi being cross-examined.
PLAINTIFF: Your Honour, I don’t think I want to be cross-examined. I’ve done everything up to date, what the Court has asked from me. I don’t think there’s anything new relevant to the case or the police are bringing anything new to the case. It just sounds like to me they’re just trying to go over old grounds.
HIS HONOUR: Any thoughts on that, Mr Searson? It is a bit unusual.
SEARSON: Your Honour, I’d suggest it may save some time.
HIS HONOUR: Yes.
SEARSON**: It would be, in my submission, in the interest of justice also for me to be able to ask him questions in relation to his pleading so that they can be better understood.**
PLAINTIFF: No, I don’t think I want to give evidence, your Honour. The police clearly stated that they actually - actually got a Court application to bring me to Court on a fraud charge, and I could have faced the gaol terms out of all of this, and now they’re stating different. I come and pleaded my case, as the police did. They had plenty of time to appeal it, which nothing was done. So now at the end of it all, I’ve gone through quite a fair bit of stress and a heart attack in all of this, your Honour, and I’m just asking for my goods or the money that I had lost in all of this because of the police’s actions. If the police did something wrong, they didn’t do their background, that’s not my problem. That’s their problem. If someone else is involved in a situation of stealing or fraud, they’re in a position that they can charge other people to get their money back or whatever happens. I’m not, your Honour.
HIS HONOUR: Okay.
SEARSON: Your Honour, I object to your Honour taking any factual evidence from the bar table.
HIS HONOUR: Well, that will go without saying almost. Obviously, I’m not going to have regard to anything that is not sworn, or if somebody requires them for cross-examination, that they are not available for cross-examination. So I just take it Mr Demasi as declining the invitation to be cross-examined.
SEARSON: I’m in the Court’s hands.
HIS HONOUR: I mean, I can’t physically force him into the witness box.
SEARSON: No, your Honour, I understand.
HIS HONOUR: Yes.” (Emphasis added)
It is unnecessary to reproduce further extracts from the transcript. As Ms McCallum submitted, the appellant’s interruptions continued throughout in a similar way. The full transcript of the hearing reveals that on multiple occasions the appellant personally responded to questions from the Magistrate that were directed to Mr Racca; he interjected, interrupted and made his own submissions. More than once, Mr Searson objected and emphasised that evidence should not be given from the bar table in the form of submissions. Although Mr Racca commenced the cross-examination of Detective Alcock, quite quickly thereafter the appellant personally asked whether he could question the witness. The Magistrate permitted this course. The Magistrate permitted both the appellant and Mr Racca to make closing submissions.
Ms McCallum submitted that the extensive contributions by the appellant (and Mr Racca’s tolerance of them) were so unusual that they placed an obligation upon the Magistrate to directly inquire of Mr Racca whether he was the legal representative for the appellant or whether he was assisting in some other way. I do not accept this submission. There are a number of reasons why the Magistrate may have permitted the appellant and his legal representative to conduct the proceedings with this level of informality; each of which is consistent with achieving the fair and efficient resolution of the dispute between the parties. It would have been clear to the Magistrate that the appellant’s solicitor had not been involved in the preparation of the pleadings, nor involved in the previous proceedings before Magistrate Corry. It must also have become clear quite quickly that the appellant was a person with a longstanding grievance or concern who was focused upon conveying his own perspective on the issues arising. It is unlikely to be an unusual experience for a Local Court Judge to have a litigant before them who interrupts their own legal representative or seeks to speak for themselves despite being legally represented. Neither the appellant’s conduct nor the procedure the Magistrate determined was appropriate to manage the proceedings over which his Honour was presiding gave rise to an obligation upon the Magistrate to treat the appellant as a self-represented litigant.
For the reasons discussed above, the necessary inference arising from the transcript of the proceedings is that the appellant was legally represented by Mr Racca. Mr Racca conducted himself consistently with this. Whether or not Mr Racca was a friend of the appellant or was assisting him “as a friend only” (which was not further explained but which may imply appearing for reduced or no fee) is not determinative of whether he was the appellant’s legal representative in the proceedings. There is no dispute that Mr Racca was at the relevant time a practising solicitor. He did not seek leave to appear in some other capacity. The appellant has produced no evidence from Mr Racca in these proceedings. There is no basis upon which the natural inference which arises from the conduct of the proceedings before the Magistrate would be displaced.
The appellant concedes that ground 2 falls away if this Court does not accept his primary contention that he was owed the duties of an unrepresented litigant. Nevertheless, it is appropriate to make some brief observations concerning the procedural fairness complaint on the alternative assumption that the appellant was self-represented.
As a starting point, it may be recalled that the appellant’s statement of claim disclosed no cause of action. To remedy any procedural disadvantage arising from this, the Magistrate made inquiries of Mr Racca to elicit from him an understanding that the claim was one in negligence. The appellant was then permitted to advance this claim in the absence of formal pleadings. He was permitted to rely upon documentary evidence, filed late, and tendered from the bar table without being required to give evidence as to its provenance by affidavit or orally. He made no application for an adjournment in order to prepare an affidavit.
The appellant was offered the opportunity to give sworn evidence in place of an affidavit, an opportunity which he declined. As the exchanges set out above demonstrate, it was made clear to him that if he declined to give sworn evidence, he would not be able to substitute it with assertions made from the bar table. The fact that the appellant reasonably understood the forensic repercussions of such a decision was made clear by his own words in response to the request that he be cross-examined. In any event, as the appellant himself explained to the Magistrate (in the extract above at [60], and in his closing submissions), the appellant’s central claim relied upon the conduct of police evidenced by the s 219 application which he tendered and about which he cross-examined Detective Alcock.
Contrary to the appellant’s submissions in this Court, the appellant was afforded procedural fairness in the form of an adequate opportunity to conduct his case, present his evidence and advance his arguments without undue formality and technicality: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [33]–[35].
If I were to grant the extension of time, this ground of appeal would be dismissed.
The orders of the Court are:
Leave to appeal out of time is refused;
The amended summons is dismissed with costs.
**********
As of 28 March 2026, the title Magistrate is changed to Judge of the Local Court. No disrespect is intended by the use of Nash LCJ’s title as it was at the time of the decision in question.
Demasi
State of New South Wales
[2026] NSWSC 752
[2001] HCA 59
(2000) 49 NSWLR 653
(1997) 187 CLR 384
(1955) 92 CLR 390
(2023) 111 NSWLR 550
(2022) 276 CLR 80
(2005) 221 CLR 249
(1998) 194 CLR 355
(2012) 250 CLR 503
(2018) 265 CLR 137
(2013) 216 FCR 445
(2017) 262 CLR 362
(2014) 253 CLR 531
(2002) 211 CLR 317
(2001) 207 CLR 562
(2014) 86 NSWLR 527