ACN 081 472 102 Pty Ltd & Jordan v Quality Value Cabinets Pty Ltd - [2008] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
ACN 081 472 102 PTY LTD & JORDAN v QUALITY VALUE CABINETS PTY LTD
[2008] SASC 107
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
30 April 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - IN GENERAL
Application for permission to appeal in private pursuant to r 282(1) of the Supreme Court Civil Rules 2006 – appeal from decision of single Judge of the Supreme Court to dismiss appeal from Magistrates Court – Magistrate found in favour of plaintiff and dismissed counterclaim – Magistrate made a number of findings of fact adverse to the defendant – single Judge not persuaded that findings of fact were wrong – outcome of any further appeal would turn upon findings of fact – no proper basis to grant application to call further evidence – plaintiff’s claim for less than $2,000 – size of claim not such as to call for permission to appeal in the interests of justice – application for permission to appeal refused.

ACN 081 472 102 PTY LTD & JORDAN v QUALITY VALUE CABINETS PTY LTD
[2008] SASC 107
Full Court: Doyle CJ, Bleby and Anderson JJ

THE COURT: This is an application for permission to appeal against a decision by a Judge of this Court.
The Judge dismissed an appeal against a decision by a Magistrate exercising the civil jurisdiction of the Magistrates Court. Permission to appeal is required by s 50(4)(a)(ii) of the Supreme Court Act.
Permission to appeal is usually granted in such cases only if the grounds of appeal raise a potential error that gives rise to a point of principle or to a matter of some general importance. However, the ultimate question is whether the interests of justice call for permission to be granted.
The Notice of Appeal was filed on 27 August 2007, 21 days after the Judge gave judgment. Thus, it was filed on the last possible day. The Notice of Appeal purported to be an appeal as of right. It is arguable that it was incompetent, because no appeal lay as of right.
On 22 February 2008 a Judge of this Court ordered the filing of a Notice of Appeal in accordance with the Supreme Court Rules, by 29 February 2008. This appears to have been intended to be a grant of permission to amend the Notice of Appeal. It may be that this order disposes of an argument that the appeal was incompetent. In due course, the applicants filed an amended Notice of Appeal, seeking permission to appeal.
The application for permission to appeal is made to the Full Court, pursuant to r 282(1) of the Supreme Court Civil Rules 2006. The applicants have filed a summary of argument, as required by r 291 of the Rules.
The application has been considered by the Full Court pursuant to Practice Direction 6.1 without first hearing the parties. For the purposes of the application, the Court has considered the summary of argument, the reasons of the single Judge, and the reasons of the Magistrate.
The applicants were defendants in the Magistrates Court. The plaintiff brought a claim against them for the balance owing for the fabrication and supply of wooden frames which, on the evidence before the Magistrate, were to be used as noticeboards. The claim was for $1,991.70. There was an issue as to when the proposed use of the noticeboards was made known to the plaintiff.
The defendants, the present applicants, defended the claim on the basis that the frames were not reasonably fit for the disclosed and agreed purpose, were not of a merchantable quality, and on the basis that the carpentry and joinery was not of a workman like standard. The defendants counterclaimed, claiming the return of monies paid, and consequential loss and damage.
The Magistrate found in favour of the plaintiff in the Magistrates Court, and dismissed the counterclaim. The Judge upheld that decision.
The Magistrate provided detailed written reasons for her decision. She made a number of findings adverse to the defendants.
The following findings are of particular significance. She rejected the defendants’ claim that the plaintiff was responsible for the design of the wooden frames. She found, in effect, that the first defendant made a choice from a number of prototypes provided to him by different joineries. She specifically found that the first defendant was aware that the various prototypes differed in appearance, strength and weight. She found, in effect, that the first defendant made an informed choice, having considered the different prototypes provided to him. She rejected the defendant’s claim that he told the plaintiff how the frames would be strung to make them able to be used as a noticeboard. She found that the first defendant chose the plaintiff’s prototype because it was significantly cheaper than the others, and because the plaintiff could meet his timetable. She found that the first defendant was aware that the plaintiff’s frame was of inferior quality to the prototypes produced by the other persons from whom the defendants obtained prototypes. She found that the defendants chose to continue with the purchase and use of noticeboards after becoming aware of a propensity for the frames to fail. The Magistrate did not accept the defendants’ claim that their product was rejected by potential purchasers as unsuitable. She found that the defendants had failed to prove their case in this respect. She found, in effect, that the first defendant presented his own design to the plaintiff, and made his own choice without relying on the skill and knowledge of the plaintiff.
In the light of those findings, it is difficult to see how the defendants’ case could succeed.
The Judge upheld the Magistrate’s decision. He was not persuaded that her findings of fact were wrong. If the findings of fact stood, it was more or less inevitable that the appeal would fail.
The written argument by the defendants in support of the application for permission, while voluminous, is in effect a re-argument of the facts, seeking to establish a different factual basis to support a different approach as a matter of law. If the challenge to the Judge’s decision upholding the Magistrate’s findings fails, then any further appeal will necessarily fail.
Conclusion
The Court is of the opinion that permission to appeal should be refused.
The Court is not satisfied that the attack on the Magistrate’s findings has a reasonable prospect of success.
Moreover, no point of principle is involved in the case. A grant of permission to appeal will lead to a third close examination of the facts by a court. The outcome of any further appeal would turn upon findings of fact. The Court does not usually grant permission to appeal in such a case for the purpose of a further close examination of the facts. The plaintiff’s claim was for a little less than $2,000. The size of the claim was not such as to call for a grant of permission to appeal, in the interests of justice.
The application by the defendants to call further evidence in support of the appeal is without merit. No proper basis for granting such an application is made out.
For the same reasons, this is not a proper case for a grant of permission to appeal against the Judge’s decision upholding the dismissal of the counterclaim.
There was a real issue as to whether judgment was properly entered in the Magistrates Court against the second defendant. The reasons for this do not matter. The Notice of Appeal states that the plaintiff has agreed to “release” the judgment against the second defendant, and that the first defendant accepts that “release”. This matter therefore does not call for intervention by this Court. If an order of a court is required, an application can be made to the Magistrates Court.
For those reasons, the Court orders that the application for permission to appeal be refused.