Atieh v City of Wanneroo - [2004] WADC 20

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ATIEH -v- CITY OF WANNEROO [2004] WADC 20

CORAM: COMMISSIONER GREAVES

HEARD: 13-16 JANUARY 2004

DELIVERED : Delivered Extemporaneously on 16 JANUARY 2004 typed from tape and edited by Trial Judge

FILE NO/S: CIV 1807 of 2002

BETWEEN: MUSTAFA ATIEH
Plaintiff
AND
CITY OF WANNEROO
Defendant

Catchwords:

Negligence - Alleged misrepresentation by local authority prior to issue and subsequent cancellation of street trading licence - Turns on its own facts

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr M I Handcock

Solicitors:

Plaintiff: Not applicable
Defendant: Mullins Handcock

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

COMMISSIONER GREAVES: In this action, on 21 March 2001 the plaintiff received $7,000 in criminal injuries compensation. At that time he had not worked since 1998. He was keen to begin business on his own account. He considered several options. He approached two or more local authorities about the sale of fast food from a mobile van.
On 28 April 2001 the plaintiff purchased a Nissan van for that purpose. Over the following months he purchased parts and equipment to convert the van for the purpose of food sales. The evidence of the plaintiff is that at the end of April that year he spoke to Mr David Shimmen, an environmental health officer with the defendant.
There is an issue on the evidence between the parties about the date on which the plaintiff first met Mr Shimmen. Mr Shimmen said he believed it was after 15 June 2001, being the date on which he became a permanent employee of the defendant. There is also an issue between the parties about the advice Mr Shimmen gave the plaintiff. The plaintiff recalls that Mr Shimmen looked at the empty van in the council carpark and gave him some ideas about how to lay the equipment out in the van.
The plaintiff said Mr Shimmen did not hand him a blue guide to the construction of food premises issued by the defendant. The plaintiff said he saw Mr Shimmen on three or four occasions. In cross‑examination the plaintiff agreed that he thought the Nissan van was too small for his purposes. He formed the impression that Mr Shimmen was trying to help him.
The evidence of Mr Shimmen was that he asked the plaintiff to tell him how the plaintiff was proposing to set up the van for the purpose of food sales. Mr Shimmen said he did not tell the plaintiff what equipment the plaintiff needed. He said he handed the blue guide to the plaintiff and said that the plaintiff had to comply with it to obtain the issue of a street trading licence for the van. Mr Shimmen said he was surprised how quickly the plaintiff returned to see him with the equipment then installed in the van.
Mr Shimmen gave evidence that he told the plaintiff that the driving and cooking areas of the van must be separated. He told the plaintiff there must be a hot water hand basin near the cooking area. He discussed refrigeration, cooking and exhaust facilities with the plaintiff. He repeated that he did not tell the plaintiff how to set up and organise the van.
Mr Shimmen said he expressed a number of misgivings about the way the plaintiff had set up the van including the exhaust and the wash basin. He said the plaintiff pleaded with him to approve the van for the issue of the licence. He said he approved the van despite his misgivings. The defendant admits it issued the licence on 7 September 2001 and that it should not have done so because the vehicle failed to comply with the food hygiene regulations. There is no issue between the parties that the vehicle did not comply and that the licence should not have been issued. The defendant therefore cancelled the licence on 1 December 2001
The issue between the parties in relation to liability is whether by making the representations alleged by the plaintiff in the statement of claim the defendant was negligent in approving the van for the issue of the licence and thereby caused loss and damage to the plaintiff
It is not necessary to determine when the plaintiff and Mr Shimmen first spoke but I accept Mr Shimmen's evidence that it was after 15 June 2001. However that may be, I find on the evidence of the plaintiff he was desperate to have the van approved and licensed so he could begin business on his own account. He was naturally upset when the licence was subsequently cancelled. He believes, correctly, the defendant should never have issued the license. He now believes the defendant told him how to set up the van in order to obtain the licence.
I accept the plaintiff's belief is a genuine belief but, on the evidence, it is unlikely that what the plaintiff says is what occurred. I accept Mr Shimmen wanted to help the plaintiff with his application for a licence but I find the plaintiff himself chose and purchased the equipment and decided how to fit out the van after 28 April 2001. I find the plaintiff made most of the purchases upon which he relies voluntarily and not in reliance on any representation or direction by Mr Shimmen or any other of the defendant.
In my view the recollection of the plaintiff is confused or mistaken in relation to the alleged misrepresentations. His evidence was otherwise confused or mistaken in material particular. In relation to the meeting of 23 November 2001 prior to the cancellation of the licence, the plaintiff insisted Mr Spicer was not present at that meeting, while he insisted Mr Sargent was. On the evidence of each of those two officers I find Mr Spicer was present and Mr Sargent was not. I find the evidence of those officers and that of Mr Shimmen more reliable in relation to detail than that of the plaintiff.
Likewise, the plaintiff was mistaken or confused about his meeting with Mr Vitasovic. I found the evidence of Mr Vitasovic to be clear and unequivocal and I find that Mr Atieh did meet Mr Vitasovic at Dove Campers. In my view once again the plaintiff's evidence was either confused or mistaken about the occurrence of that event.
At all material times it was the plaintiff's obligation to comply with the food hygiene regulations. He did not do so. As I have said, the licence was subsequently cancelled on 1 December 2001 following inspection of the van at the meeting I have mentioned on 23 November 2001. I accept the evidence of Mr Spicer about what occurred at that meeting and his observations prior to it.
Counsel for the defendant has made a number of submissions before the court, including those in his outline. In my view the court should accept the submission that the defendant acted reasonably in cancelling the licence in that the van did not comply with numerous health requirements, the exhaust from the internal generator did not properly vent to the outside of the van and that the defendant wrote to the plaintiff on 27 November 2001 outlining the required remedial action.
I accept the submission the defendant was entitled to rely on the fact that the plaintiff was in breach of a condition of his licence, if for no other reason than his name was not printed on the side of the van. Counsel for the defendant submitted that the process of issuing and cancelling the street trading licence does not give rise to a duty of care owed by the defendant to the plaintiff. He submits that the power to issue the licence is discretionary and that if the health regulations had been properly applied the street trading licence would not have been issued.
In that event he submitted the plaintiff would have had no cause for complaint. The plaintiff would not have been entitled to claim any of his costs or expenses in preparing the van or making the application. He submitted such costs and expenses are an inherent risk of any unsuccessful discretionary licence application. In my view those submissions should be accepted. Accordingly, in my opinion upon the findings of fact and credibility I have made the alleged negligence of the defendant has not been established.
In case assessment of damages should become relevant in this action, I find the plaintiff has not been employed since 1998 and that it is unlikely he could have earned $200 in profit per day from the operation of the van. He offered no evidence on which this alleged loss may be assessed. The only evidence to which the Court can properly have regard is that the plaintiff made no profit at all while he was operating the van prior to the cancellation of the licence.
The plaintiff also claims damage for psychological injury but equally offers no evidence in support of it. I should say that I was informed during the course of the trial that the Principal Registrar gave specific directions to the plaintiff about medical evidence prior to the listing of the trial and the plaintiff acknowledged before me that the Principal Registrar had made those directions.
The plaintiff claims $3,000, being the value of the van. His evidence is that he retains the van in his possession. He suggested the van is not now worth $3,000 but there is no evidence on which the Court can determine the value of the van is less than $3,000.
The plaintiff claims $6,826, being the cost of the equipment he purchased for the van. The plaintiff's evidence is that he has retained much of this equipment. His evidence in this regard was at least uncertain, if not unsatisfactory, and I accept the submissions which Mr Handcock made today in relation to that evidence. For the reasons he outlined I found it extremely difficult to determine what, if any, loss the plaintiff has suffered under this head.
In my view, if damages were to be assessed, the best the Court could do would be to award a sum of $3,000 under this head. In the event, however, in view of the conclusions which the Court has reached, the plaintiff's claim should, in my opinion, be dismissed. While it is not necessary for this decision, I would only observe that it has become plain in the course of these proceedings that the plaintiff believes he has suffered a gross injustice. I regret the plaintiff fails to appreciate the defendant, and subsequently others, have tried to help him. Why this is so is not entirely clear and not a matter for the Court. For those reasons the plaintiff's claim will be dismissed.