Background
Cosimo Demasi claimed damages in negligence against the State after NSW Police investigated a dispute over household goods held by a licensed auctioneer, Jason Tilley. In 2017, police served Mr Tilley with a notice under s 21(2) of the Pawnbrokers and Second-hand Dealers Act 1996 prohibiting disposal of specified goods for 56 days, and later applied under s 219 of LEPRA for orders concerning their disposition.
In 2018, the Local Court found Mr Demasi was the owner of the goods. But the goods had already been auctioned before the police notice was issued. In separate negligence proceedings, Magistrate Nash found that police had never seized or physically held the goods, owed no duty to safeguard them, and had not been shown to have breached any duty or caused proven loss.
The Court’s Holding
Roberts J refused leave to appeal out of time and dismissed the amended summons with costs. The proposed appeal lacked merit, making an extension futile.
The Court held that s 21(2) does not impose a safekeeping duty on the authorised officer who issues a notice. Properly construed, the provision empowers an authorised officer to require a licensed dealer not to dispose of suspected stolen or unlawfully obtained goods; the corresponding legal obligation is imposed on the licensee, not on police or another authorised officer.
The procedural-fairness ground also failed. The transcript showed that a practising solicitor, Mr Racca, represented Mr Demasi at the Local Court hearing. In any event, the Magistrate permitted Mr Demasi to tender documents, offered him the chance to give sworn oral evidence, allowed him to question the detective, and permitted submissions. Mr Demasi declined to give evidence and did not seek an adjournment.
Key Takeaways
- A s 21(2) retention notice binds the licensed dealer holding the goods; it does not make the issuing officer their custodian.
- A prior s 219 application did not prove, in the later negligence case, that police had physical custody of the goods.
- A party represented by a solicitor cannot rely on duties owed to an unrepresented litigant merely because the party also speaks during the hearing.
Why It Matters
The decision distinguishes police regulatory action over second-hand goods from possession or control sufficient to found a private-law duty of care. It also confirms that a statutory power designed to preserve goods while ownership is investigated will not readily be read as transferring the dealer’s custodial obligations to police.
For appellate litigants, the case illustrates that an extension of time will be refused where the proposed legal grounds cannot succeed, even where the applicant relies on ill health and delay-related explanations.