Court of Appeal
Supreme Court
New South Wales

Medium Neutral Citation:

Hetherington-Gregory v All Vehicle Services [2012] NSWCA 232

Hearing dates:

23 July 2012

Decision date:

23 July 2012

Before:

Basten JA

Decision:

1. Direct that the application for leave only and any application for extension of time be heard together.

2. Dismiss the motion for:

(a) a stay of judgment in the District Court summarily dismissing the proceedings in that Court;

(b) an order setting aside any lien over the motor home the subject of the registration application.

3. Direct the applicant to file evidence of service of the summons in this Court on All Vehicle Services by the first directions hearing of 27 August 2012.

4. The applicant to file and serve written submissions on the application for leave and extension of time by 5pm, Monday 30 July 2012.

5. The respondents to file and serve written submissions in response by 5pm, Monday, 13 August 2012.

6. The costs of today are to be costs in the summons proceeding.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - stay - plaintiff's claim dismissed summarily by District Court - whether open to Court of Appeal to stay order for summary dismissal

TORTS - negligence - public authority refused to issue certificate of roadworthiness - plaintiff alleges breach of duty of care - whether proceedings constitute an attempt to review a decision of a public authority through a claim for damages - Civil Liability Act 2002 (NSW), ss 43 to 44

Legislation Cited:

Civil Liability Act 2005 (NSW), ss 43, 44

Cases Cited:

Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215
Tame v New South Wales [2002] HCA 35; 211 CLR 317

Category:

Procedural and other rulings

Parties:

Ms P A Hetherington-Gregory (Applicant)
All Vehicle Services (First Respondent)
Roads and Maritime Services (Second Respondent)
Motor Traders Association (Third Respondent)

Representation:

Counsel:

Applicant in person
Mr G J Sarginson (Second Respondent)
Mr M Yum (Third Respondent)
Solicitors:

Applicant self-represented
Crown Solicitor's Office (Second Respondent)
Consolidated Lawyers Pty Ltd (Third Respondent)

File Number(s):

CA 2012/222495

Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-06-12 00:00:00

Before:

Toner DCJ

File Number(s):

DC 2012/130012

Judgment

1BASTEN JA: These proceedings arise out of a dispute between the applicant Ms Hetherington-Gregory and the first respondent, All Vehicle Services, as to whether a motor home which was a converted bus was roadworthy and should have the necessary certificate entitling it to be registered in this State. All Vehicle Services is a respondent to these proceedings but has so far entered no appearance. It was called today but did not respond. I have no evidence as to whether it has been properly served but that is a matter which will need to be dealt with in due course.

2A business licensed to determine questions of roadworthiness has apparently held that the vehicle was not roadworthy. It appears that the applicant complained to an officer in the Roads and Traffic Authority, now Roads and Maritime Services, without success. The refusal to issue a certificate of roadworthiness has not been overturned or set aside. One of the claims in the District Court proceedings, which she commenced earlier this year, was apparently an order that such a certificate be provided. That is not relief which the District Court would have been able to provide. She also claims that the parties responsible for the refusal owed her a duty of care. No doubt if they had negligently licensed the vehicle and an undetected problem led to an accident they might have been sued.

3The question which is raised by the present proceedings is whether they can be sued for failing to register. In the District Court the applicant was told that that was not so and that they had no duty of care in that regard and her statement of claim (or rather summons) by which she had commenced proceedings in the District Court was summarily dismissed by Toner DCJ on 12 June 2012. The respondents argued below that there was no duty of care, referring to Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215, an authority which in turn referred to the principles established in Tame v New South Wales [2002] HCA 35; 211 CLR 317.

4This is in effect an attempt through a claim for damages to review an administrative decision of a public authority which could only be challenged in public law proceedings on limited grounds. That step has not yet been taken. If it had been and had been successful the applicant would still have to confront the hurdle imposed by ss 43 to 44 of the Civil Liability Act 2002 (NSW) which were apparently raised in the District Court but which the District Court judge, I am told, did not need to consider.

5Whether or not the applicant is entitled to leave to appeal is a matter to be addressed by a two judge court and I will direct that the application for leave to appeal be considered on a leave only basis together with the leave that she requires to file the summons out of time, an extension being required because the summons was not filed in this Court within twenty-eight days of the judgment in the District Court and no notice of intention to appeal was filed within that period.

6So far as the other orders sought today are concerned, it being an application for leave only it will probably be listed within the next two months and there is no need for an order for expedition.

7In respect of an application for a stay of the judgment below, the proceedings having been summarily dismissed there is nothing to stay and no order can be made by this Court in that regard. The applicant also seeks that the orders in the Court below be set aside. That will be a matter to be addressed only when the question of an extension of time and leave to appeal have been determined.

8The applicant also separately seeks removal of a common law lien asserted apparently by All Vehicle Services in respect of the bus. Again that is a matter which would need to be dealt with, probably in the Local Court, and does not come before this Court in these proceedings.

9Accordingly there is no need for further orders. The matter is to return to the Registrar's list as on the first directions hearing on 27 August 2012. I will direct that each of the parties file and serve a copy of their submissions with respect to the application for leave to appeal by that date. I direct that evidence be filed of service of the proceedings in this Court on All Vehicle Services by that date.

10I make the following directions: