Henskens v Brett Anthony Smith

Allen v Kerr & Anor [1995] Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Carr v Neill [199] NSWSC 1263 Devries v Australian National Railways Commission (1993) 177 CLR 472 Jackamarra v Krakouer (1998) 195 CLR 516 CASES CITED : Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 Livesey v New South Wales Bar Association (1983) 151 288 Re Refugee Review Tribunal Ex-parte H (2001) 75 ALJR 982 R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 (2002) 37 MVR 479 State Rail Authority of New South Wales v Earthline Constructions POty Ltd (in Liq) (1999) 160 ALR 588 Wakim v Mathiew Pty Ltd t/as Dove Migration Services [200] NSWSC 405

PARTIES : Peter Gerard Henskens (Plaintiff) Brett Anthony Smith (Defendant)

SOLICITORS : P G Henskens (Plaintiff in person) City Law (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

15577/07 - PETER GERARD HENSKENS v BRETT ANTHONY SMITH

JUDGMENT (Appeal decision of Local Court Magistrate) - removal of goods in backyard shed) 1 HER HONOUR: By further amended summons filed 27 March 2008, the plaintiff seeks firstly, an order granting leave to appeal the decision of his Honour Magistrate Morahan dated 26 September 2007; secondly, an order that the appeal be allowed; thirdly, an order that the judgment order made in favour of the defendant in the Local Court be set aside; fourthly, an order that the judgment order that the plaintiff pay the defendant's costs as agreed or assessed on a party/party basis be set aside; fifthly, an order that the time for filing this appeal be extended (if necessary); sixthly, an order that leave be granted to rely on mixed question of law and fact in this appeal; and seventhly, an order that there be judgment for the plaintiff in the amount of $22,400 plus $846.29 plus $846.29. 2 The plaintiff is Peter Gerard Henskens ("Mr Henskens"). The defendant is Brett Anthony Smith ("Mr Smith"). Mr Henskens and Mr Smith were plaintiff and defendant respectively in the Local Court proceedings. Mr Henskens represented himself both in the Local Court and in this Court. 3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 permits a party who is dissatisfied with a judgment as being erroneous on a point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor [1995] Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479. The judicial officer cannot act on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. 4 In Swain v Waverley Municipal Council (2005) 220 CLR 517, the Chief Justice at [2] reiterated that "in the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal." 5 Section 75 of the Local Court Act provides that the Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. 6 On 26 September 2007, the Magistrate entered judgment in favour of Mr Smith, the defendant and ordered Mr Henskens to pay the defendant's costs.

Grounds of Appeal 7 Mr Henskens appeals from the whole of the decision of his Honour Magistrate Morahan dated 26 September 2007. While the grounds of appeal are lengthy, the main complaints appear to be lack of procedural fairness, real or apprehended bias, failing to take into account relevant considerations, error of law on the face of the record, no evidence, and "Wednesbury" unreasonableness.

Extension of time 8 It is for the party seeking the extension to persuade the Court that it is in the interests of justice that it should be granted. Such persuasion will usually depend on the provision of an acceptable or satisfactory explanation as to why the time limits were not complied with - see Jackamarra v Krakouer (1998) 195 CLR 516 at 540; (1998) 153 ALR 276 at 294. 9 On 26 September 2007, the Magistrate handed down his decision. On 5 November 2007, Mr Henskens filed the summons. While Mr Henskens has not filed any affidavit evidence explaining his delay in filing his appeal, he provided this Court with an oral explanation. At the time he resided in Brisbane the defendant's solicitor was to fax a copy of the Local Court judgment to him. There was a delay while arrangements were made to scan and email the judgment to Mr Henskens. On the 27th day after judgment was handed down, Mr Henskens forwarded the summons to the Supreme Court by way of express post. It appears that there was a delay between post and the filing of the summons. I accept Mr Henskens's explanation for the delay as being satisfactory. Hence, I grant leave TO extend the time for filing the appeal.

Local Court proceedings 10 The plaintiff's case initially started out in the Small Claims Division of the Local Court. It was remitted to the Consumer, Trader and Tenancy Tribunal ("CTTT') to be consolidated with other matters before that Tribunal. The issues were not all resolved by the CTTT. The plaintiff filed an amended statement of claim that added new claims wherein he was claiming in excess of $26,000. It was no longer a small claims matter. 11 The history of this case was described by the Magistrate as being tortuous. The Magistrate elaborated: "The case has proved a difficult one in many respects, the main reason being the plaintiff is unrepresented. His pleadings are most unsatisfactory including as they do, statements of fact, opinion, conjecture and hearsay. The affidavits he has filed in support of his case are similar. Throughout the hearing, I have tried to help the plaintiff but he has resisted that help claiming that his previous experience as a clerk in a Local Court registry makes him familiar with the procedures required..."

The pleading framework 12 The starting point is the pleading framework. The main purpose of pleadings is to allow the other side to know the case it has to meet. 13 At paragraph [3] of the plaintiff's amended statement of claim he pleaded that the tenancy agreement clearly excluded the storage shed at the rear of the property the shed contained expensive electronic and theatrical lighting equipment belonging to him and was secured and lock with a padlocked bolt.

14 At paragraph [6] he pleaded that "the defendant has admitted, to the plaintiff and also to the leasing agent, breaking into the padlocked shed, removing and retaining the plaintiff's theatrical lighting equipment which was contained therein. The facts suggest the defendant undertook this theft after he was served with the pre-amended copy of this claim. The defendant did, when threatened with criminal action, offer to return this stolen property. The defendant has failed to do so." 15 At paragraph [23.7] the plaintiff pleaded [although it does not say it is assumed that the plaintiff is seeking damages in relation to the loss of these items]: "7. $22,400 Professional Theatrical Lighting & Electronic Equipment removed (stolen) without permission by the Defendant from the locked storage shed at the rear of the property. The defendant, when threatened with criminal actin, agreed to return these stolen items but has failed to do so. Such being: a. 16 new Aluminium Ray Light cans b. 8 new Aluminium Par 64 cans c. 12 average to new Par 56 cans d. 2 Minuet Profile Spots e. 1 Patten 23 Profile Spot f. 1 Jands Super Strobe (All above lights are on lighting bars & have working lamps - most new) g. 8 (or 12) x brand new Hotspots all on bars. Globes or Transformers blown h. 1 Strand 10 channel Dimmer Rack i. Assorted lighting Looms (110 & 240V), Splitters & 3Phase Leads j. 4 lengths of flat Truss - average condition - with hardware k. 2 New 12' Pushup Trees - really good quality collapsible l. 2 average condition 12' Winchup Trees m. Assorted "G" clamps & Short & Long "S" Hooks for double hanging bars & hardware The plaintiff intended to sell the above equipment items a to m for $3,000. n. $15,400 for 22 x New and used Martin Fog Machines estimated average value $700+ each. (Equivalent replacement cost $899 based on Martin/Gem ZR12AL o. $4,000 replacement value for 2 x Boxes of spare parts for Martin Fog Machines." 16 The defendant filed an amended defence [in which it annexed a copy of the further amended statement of claim in which he had numbered the paragraphs]. It was a difficult document to plead to but so far as the shed was concerned, the defence stated (at [3]): "Due to the poor drafting of paragraph 3 the defendant, to assist the Court, admits to that part of the paragraph that states, "the Residential Tenancy Agreement…clearly excludes the storage shed at the rear of the property." However, the plaintiff (sic) does not admit or can not admit to that part of the paragraph that states, "this shed contained expensive electronic and theatrical lighting equipment belonging to the plaintiff and was secured and locked with a padlocked bolt." 17 From the pleadings, it is common ground that the shed did not form part of the premises in the residential tenancy agreement entered into between the parties. 18 The pleading does not articulate a cause of action in relation to the goods that had been removed from the shed. The reference is to non-return of stolen property. 19 The onus is on the plaintiff to properly plead and present his case. At the hearing of this appeal the thrust of the plaintiff's submissions was that it was for the Magistrate to assist the parties "to get to the truth". The plaintiff did not specify the cause of action other than to say there was a common law action in relation to what had occurred. According to the plaintiff it was up to the Magistrate to assist him with this because he was unrepresented. Perhaps he could have alleged that there had been a conversion. Conversion can be defined as an intentional exercise of control over a chattel which so seriously interferes with the right of another to control it that the intermeddler may justly be required to pay its full value. The plaintiff also submitted that this Court should be lenient with him as he is not a lawyer. 20 The Magistrate set out the two issues to be determined by him. The first issue was whether Mr Henskens could recover the costs expended in the CTTT. The Magistrate disallowed this claim and it is not the subject of this appeal. 21 It is the second issue which is the subject of this appeal (and application for leave to appeal) summarised by the Magistrate as: "…the loss of lighting, sound and fog equipment together with associated cables, bars and brackets. I will refer to these items as equipment. At one time, the plaintiff says he was the service manager of a company which supplied the entertainment industry with such equipment and he acquired a lot of this for his own use. It was stored in a garden shed at the rear of the premises at … Mayfield which were the subject of a residential lease between the parties. It was disputed between the parties in relation to the non-payment of rent, damage to the property etc. which was before the CTTT. Following orders made in that jurisdiction, the defendant arranged for a person to remove his furniture from the premises as he was vacating them." 22 The plaintiff and defendant gave evidence and were cross examined. Ms Powell was employed by the real estate agent who managed the property. She provided an affidavit, gave evidence and was cross examined. However, her evidence was that she had never seen what was in the shed, but did confirm that she had a conversation with Mr Smith where he advised that he put the "stuff out for council pick up". Later Mr Smith told her that a friend had them and he could get them back (t 44-46). 23 The plaintiff's mother Margaret Henskens swore an affidavit and gave evidence. Mrs Henskens said that she had seen some black boxes on the lawn at one stage but she did not remember how many and then she said there were about 20 (t 63). Mrs Henskens also gave evidence that she saw about four to five pallets in the shed. The Magistrate was unimpressed by Mrs Henskens's evidence. The Magistrate had this to say: "To further support his case, the plaintiff called his mother who sought to give detailed evidence of the precise nature of the items which were said to be in the shed. In cross examination she denied that her affidavit had been prepared by the plaintiff and she had simply signed it, unaware of its contents or purport. Mr Kelly asked her a detailed set of questions in cross examination about the contents of her affidavit. She said she had read it the night before the hearing but it quickly became clear that she had no knowledge whatever about its contents. Quite frankly I am amazed that the plaintiff could allow his own mother to be shown up as a totally unreliable witness in the way she was during cross examination."

24 The Magistrate was not impressed with the defendant's, (Mr Smith) explanation in relation to the loss of the equipment from the shed. There were three explanations given by Mr Smith as to what happened to the goods in the shed. The first one was that Mr Smith said to the plaintiff "I wanted to use the shed so I put them out in the council rubbish bin collection and that he [Mr Smith] had permission from the real estate agent" (Aff 23/05/2007 [31]-[36]). The Magistrate made a slightly different finding in relation to explanation one and referred to explanations two and three. His Honour stated: "The defendant's explanation in relation to the loss of this equipment was unsatisfactory. When the plaintiff became aware that his lighting equipment was gone from the shed, both personally and through his real estate agent Vicki Powell, the plaintiff pressed the defendant for a response as to the whereabouts of these items. The defendant's first reply was that he had never seen the equipment, the second was that it was at a friends place and the third was that it was stolen. When pressed as to this in cross examination, the defendant replied that his enquiries revealed that the person who had moved his furniture and had mostly likely stolen the plaintiff's lighting equipment was a well known criminal with a propensity for violence. As a result, he became concerned for his safety and did not press this person for the return of the plaintiff's equipment. When the plaintiff finally became aware of the situation, he reported the matter to the police who declined to take action because they said it was a "civil matter". The defendant says he assisted in the limited police inquiry as far as he was able." 25 There were difficulties with the plaintiff's evidence on damages. The plaintiff had obtained quote from Show Technology Australia Pty Limited dated 14 June 2007, which provided the following information:

Stock Code Description Quantity PricePerDisc% Ex Value JEMFOG105 ZR-12 AL 1 817.27 1 817.27 ZJEMFOG505 JEM PCB ZR12 10 333.64 1 3,336.40 ZJEMFOG020 ZR-12 -Block & Heater 1kw 10 345.45 1 3,454.50 ZMARJNR099 PRO200/ 5 255.45 1 1,277.25 Technofog - Pump (Large) ZR20

Please note that the Jem ZR-12AL replaces the Martin MKI1 and Junior 900 series fog machines 26 The total was $9,773.97 (including GST). However, this equipment that was removed was not now. It was 11 years old. The plaintiff also tendered an email that he had sent to Mr Johnston dated 28 September 2005 offering to sell some of the equipment for a discounted rate of $3000 but he thought the true value was $5000. Mr Johnston was not able to catch up on the weekend; he had a lot of second hand equipment on hand but if his equipment "is in good nick, we may be able to move some of it." There was nothing further. 27 The Magistrate concluded: "In his closing submissions, the plaintiff pointed out that he imported and paid for his equipment, that he is not claiming its value as new but slight less. How he calculated this he did not tell us. In relation to the quote for replacement equipment which he has tendered to the court, he says this is the best he could do. The plaintiff also sought to prove quantum by tendering emails he had sent to people offering to sell this equipment for $3,000 although he stated he felt it was really worth $5,000. This is considerably less than the amount stated in his statement of claim. The plaintiff also submits that by the defendant giving him different versions of what has occurred, this caused delay and as a result, the defendant denied him the opportunity to go to the police and have the theft pursued and perhaps get his equipment back. Whether this would change the police response is a moot point. The plaintiff then went on to say

that the defendant's claim that these items were stolen is a fabrication, that the defendant took them himself and he gave them to a mate as payment for helping him move his furniture. There is no evidence to support this contention and I reject it.

On the issue of liability, the plaintiff has not been able to establish that the defendant was under any duty of care to look after this equipment in the garden shed nor has he been able to establish a bailment of any sort. The shed was expressly excluded from the residential lease so no liability arises in contract nor can he establish unjust enrichment. In addition, the plaintiff has been unable to prove quantum in relation to what he claims to be the value of the various items making up the equipment removed from his shed. Regrettably the plaintiff was informed of all of these shortcomings in his case before the hearing commenced but he chose to ignore the advice given."

Procedural fairness in the Local Court 28 In Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J made the following observations: "20 The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Court. This is clear from the nature of the function to be performed by that tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act. 21 The content of the requirements of natural justice is not fixed. The content fluctuates. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to: (i) act judicially; (ii) deal with the matter for decision without bias; (iii) give each party the opportunity of adequately presenting its case; (iv) observe the procedural and other rules provided for in the relevant statute; (v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice." 29 O'Keefe J made the same comments in Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 at [23]. These comments are also apply to the general division of the Local Court. 30 Mr Henskens submitted that he was denied procedural fairness because the Magistrate failed to dismiss Mr Smith's defence and rule in favour of him (Mr Henskens), even though it became apparent to the Magistrate that the legally represented Mr Smith had failed to comply with the hearing timetable and had failed to file and serve any evidence in support of his defence prior to the hearing date, while Mr Henskens being unrepresented had fully complied with the hearing timetable and filed and served his evidence some four months before the hearing. The Magistrate refused to allow the defendant to rely on evidence that was served late (t 2.17). The defendant's solicitor Mr Kelly then sought an adjournment which was refused. 31 Later in the proceedings the defendant sought to rely upon an affidavit (which had earlier been disallowed). The Magistrate asked the plaintiff "Are you happy to let that come in?" and the plaintiff replied "Yeah in the interest of moving the matter forward." (t 76). The Magistrate then stated, "Its up to you Mr Henskens. I'm not going to let it in unless you consent. Otherwise I will have to adjourn." 32 There are other exchanges which the plaintiff says amount to procedural unfairness. I have carefully read the transcript. It was a difficult case from the start because the pleadings did not properly particularise his claim. The plaintiff asked questions in a narrative style, not in accordance with the rules of evidence. Nevertheless, the plaintiff was articulate and was able to put his case forward. The Magistrate afforded the plaintiff leniency with his pleadings, the form of his affidavits and his questioning at Court. Had the plaintiff decided that he should seek an adjournment he could have requested one. He was aware of the availability of an adjournment because he had worked in the Local Court previously. He did not chose to do so. 33 It is my view that the plaintiff was afforded a reasonable opportunity to give evidence, call evidence, cross examine witnesses and make submissions. He was afforded procedural fairness. The Magistrate decided that the plaintiff did not prove his case. It was open for the Magistrate to reach that conclusion. 34 So far as alleged bias is concerned, the law on the topic of apprehended bias is not in doubt. Apprehended bias will exist where a fair minded lay observer, who is properly informed as to the nature of the proceedings, the matter in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided - see Re Refugee Review Tribunal; Ex-parte H (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. It is my view that a fair minded observer would not have apprehended that the Magistrate might not bring an impartial mind to the resolution of the issues to be decided. 35 The other grounds of appeal have not been made out. Leave to appeal is refused. The appeal is dismissed. The judgment of his Honour Magistrate Morahan dated 26 September 2007 is affirmed. The further amended summons dated 27 March 2008 is dismissed. 36 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

(1) Leave is granted to extend the time to file the summons.

(4) The judgment of his Honour Magistrate Morahan dated 26 September 2007 is affirmed.

(5) The further amended summons dated 27 March 2008 is dismissed.

(6) The plaintiff is to pay the defendant's costs as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.