Barrett (trading as Decor Homes) v Dapper Nominess Pty Ltd (trading as Dapper Design Draughting

[1982] FCA 306

Re: GEOFFREY ARNOLD BARRETT trading as DECOR HOMES
And: DAPPER NOMINEES PTY. LIMITED trading as DAPPER DESIGN DRAUGHTING
No. ACT G24 of 1982
Appeal from Supreme Court of ACT

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.
Keely J.
Gallop J.

CATCHWORDS

Appeal from Supreme Court of ACT - Contract Law - Action in quasi-contract after repudiation of oral contract - claim that trial Judge had interfered excessively with conduct of case by litigant in person.

HEARING

CANBERRA

#DATE 23:12:1982

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's taxed costs.

JUDGE1

This is an appeal from the Supreme Court of the Australian Capital Territory by an unsuccessful defendant in an action, seeking in the alternative judgment in his favour or an order for a new trial.

The claim by the plaintiff was for $2338.40 for work done for the defendant and materials provided pursuant to an oral agreement between the parties. In fact this was a mis-statement of the true nature of the plaintiff's claim, which was in quasi-contract following the repudiation by the defendant of an oral contract. Although this became clear during the opening of the case by plaintiff's counsel, no amendment to the statement of claim was sought or required.

The plaintiff in this case, for all practical purposes, is Mr. Peter James Kercher, a design draughtsman and building consultant. He and his wife own and control the plaintiff company. He was the sole witness for the plaintiff and it will be convenient to refer to him as the plaintiff in the course of this judgment. The defendant is, or rather was, a builder.

The substance of the plaintiff's case was that in 1977, while he was sharing with the defendant business premises which he (the plaintiff) had leased, they entered into an agreement by which the plaintiff was to prepare a brochure outlining a number of home designs, which he would endeavour to persuade clients to order, and the defendant would then build. It was agreed between the parties that payment for the brochures would take the form of a commission of about $500 on each house contracted for by the defendant on the basis of the brochure and any additional drawings required in the particular case. The defendant was also to reimburse the plaintiff for any out-of-pocket expenses in having the brochures printed.

Although there is some disagreement between the parties as to the month in which this arrangement was entered into, nothing seems to turn on this and there is general agreement as to the nature of the arrangement.

It is also clear that, in the event, the plaintiff produced some brochures, the defendant was not happy with them and he cancelled all business arrangements with the plaintiff, including his occupancy of the business premises. In this connexion he paid three months licence fee in place of the agreed notice. As a result of this repudiation of the agreement between them, the plaintiff sued for the reasonable costs of his professional work on the brochure, together with out-of-pocket expenses.

If the defendant had no just excuse for repudiating the contract, the plaintiff could elect to sue either for breach of contract or, in quasi-contract, for the value of his work (De Bernardy v Harding (1853) 8 Ex. 822). In substance he pursued the latter course although, as I have said, this was not the way the matter was pleaded.

All the argument in the appeal hearing, concerning the facts of the case and the relevant law, was really directed to the short point as to whether, in the events which occurred, the defendant was legally entitled to cancel the arrangement he had made with the plaintiff.

The defendant conducted his own case on appeal, as he had done in the Supreme Court. It will be necessary to consider this circumstance in more detail in relation to the Supreme Court hearing but, for present purposes, all that need be said is that the notice of appeal, drawn by a solicitor, raised all the necessary issues, and the defendant/appellant had no difficulty in conveying to this court the various points he was concerned to make. Some of them at least were cogent points, deserving careful consideration.

The first point stressed by the defendant in his appeal was that he, being an experienced business man, would never have agreed - as the plaintiff claimed he did - to leave the designs in the brochure almost entirely to the plaintiff's discretion. The printing of the brochures in quantity was, he claimed, done without his authority.

His second and chief point was that he at no stage contemplated, let alone agreed, that the plaintiff would have copyright over the designs contained in the brochure. Five of them, he said, were designs already used by himself and others. They were taken from his desk, without authority, by the plaintiff. Yet the brochure, when produced in quantity by the plaintiff, had clearly printed on its back cover a notice reading

"COPYRIGHT: These drawings shall not be copied in part or whole, or used without the written permission of the designers."

The designers were shown as "Peter J. Kercher and Associates".

The defendant gave evidence that as soon as he saw this notice, on the first brochure which the plaintiff handed to him, he contacted his solicitor for advice, then went to the plaintiff and protested strongly. There were some negotiations as to a letter which the plaintiff might write to the defendant, withdrawing or limiting his claim to copyright; in the expectation of receiving such a letter the defendant took delivery of all the brochures and handed over a cheque for the printing costs; but no agreement could be reached because the plaintiff (as he admitted in evidence) wanted to retain some hold over the defendant to secure the benefits from his drawings. In these circumstances the defendant cancelled the arrangement.

The plaintiff had given evidence that he showed proofs of the back and front covers of the brochure to the defendant some time before he had it printed in quantity; the back cover incorporated the copyright claim. He did so in the first half of December 1977. Some days later he gave copies of his detailed designs to the defendant. The defendant was about to leave on his holidays but said he would study them while away. In his evidence the defendant flatly denied that he had ever been shown the draft covers of the brochure, but agreed that he had intended to examine the designs, which he described as a rolled bundle of plans, while he was away. However, by an oversight, he left them at a friend's house in Sydney and made no later effort to retrieve them. He was presented with the finished product soon after his return to Canberra in January 1978.

There was also disagreement between plaintiff and defendant as to whether the defendant brought the brochures back and complained about the copyright notice within hours of receiving them, as he claimed, or some three days later, as the plaintiff said.

At the end of the hearing, the learned trial judge gave an immediate oral judgment in the following terms.

"This is, of course, not easy. There is a wide disparity between the stories told by the two witnesses and in coming to my conclusion I should make perfectly clear that notwithstanding the argument put to me, perfectly properly by (counsel for the plaintiff), I do not find it necessary to rely nor do I get any assistance from the demeanour of Mr Barrett or his manner of giving evidence or his manner of responding to questions. But I think the stories themselves told by the two parties concerned carry their own degrees of probability and on the balance of probabilities I find that the plaintiff's story is more probably true and consequently I must accept the evidence of the plaintiff and consequently there must be judgment for the plaintiff for the sum of $2338.40."

His Honour also awarded costs against the defendant.

In this judgment his Honour seems to be saying that he has based his findings entirely upon the inherent probabilities of what he calls the parties' stories. Since there was a good deal of common ground in those stories, it seems that his Honour must have had in mind the main points at which they diverged. Without the benefit of any actual findings of fact, that seems to be the basis on which an appellate court must work. It seems unlikely, in the absence of any findings on the credibility of the witnesses, that his Honour meant that he accepted every word of the plaintiff's evidence, in preference to the defendant's, when they were at variance.

The important points of divergence between the plaintiff's and defendant's evidence were summarized by counsel for the plaintiff/respondent in a convenient way, which I accept for purposes of this judgment.

After conceding that, if the copyright claim had been improperly placed on the brochures, the defendant's case would succeed, counsel identified the matters which the trial judge must have found in the plaintiff's favour as -

(a) the plans in the brochure were substantially the plaintiff's work and so entitled to copyright protection,

(b) the plaintiff did show his proposals for the front and back covers of the brochure (including the copyright claim) to the defendant before the defendant went on holiday, and he raised no objection, and

(c) when the defendant was given the brochures, he raised no objection, took delivery of them, handed over a cheque for the printing costs and did not mention his concern about the copyright claim until two or three days later.

Having carefully studied the evidence on these matters, and giving full weight to the submissions of the defendant in the course of his appeal, I can only say that I believe it was clearly open to the learned trial judge to find all these facts in favour of the plaintiff.

The following points tell particularly in the plaintiff's favour

(i) if five of the ten plans in the brochure were in fact not the plaintiff's work, the defendant should have been able to call some corroborative evidence of that fact,

(ii) it is strange that the plaintiff was so unconcerned about the brochure that he did not bother to glance at any proofs of the cover or detailed designs before going on holiday,

(iii) there were a number of specifications in the brochure which one would have expected the defendant to provide, but he denied having done so; and

(iv) the writing of the cheque for printing costs, and the respective dates of the cheque and the letter which he wrote cancelling all arrangements, are more consistent with the plaintiff's account of the events leading up to repudiation of the arrangement than with the defendant's.

Finally it must be said that, although the trial judge did not purport to base his decision on the demeanour or credibility of the plaintiff and defendant, he must at least have concluded that there was nothing in those factors to suggest a different result from the one at which he arrived.

Although I have been troubled by the brevity of the judgment in this case, and the need to make a number of assumptions about the evidence accepted by the trial judge, I can see no reason for over-turning his Honour's judgment or ordering a new trial on the basis of the evidence led in the Supreme Court.

The other substantial ground of appeal advanced by the appellant was that "the learned trial judge erred in law in interfering too much in the trial and preventing the defendant from cross-examining and putting his case fully and effectively".

In the event it became clear that the only real complaint of the appellant was that relating to his cross-examination of the plaintiff. In fact he had every opportunity to put his own case fully and effectively and he did so.

With regard to cross-examination, there are always likely to be problems for a litigant-in-person in this area. The rules relating to cross-examination which, for very good reasons, have been developed by courts over the years are likely to prove irksome to laymen. Requirements of relevance, clarity, directness and particularity are not readily understood by those without training or experience. It is necessary for the judge in such cases to allow more latitude to the questioner than he normally would, but he must also have some concern for the situation of the person being cross-examined. It is not surprising, in such circumstances, that the lay questioner finds it hard to develop a testing type of cross-examination.

That is the chief complaint of the appellant in this case. He alleges many interruptions by the judge, in addition to objections by counsel, in the course of a reasonably short cross-examination.

Having examined the transcript carefully I can only say that I sympathize with both the appellant and the very experienced trial judge. I can find nothing in his Honour's handling of the problem which would demonstrate any undue interference on his part. He was doing his best to see that the real points of dispute emerged and were put to the plaintiff. He succeeded in this, although I am prepared to accept that the appellant suffered frustration and interruption of his train of thought in the process. I do not believe that his Honour was, as the appellant alleged, over-technical, or unduly concerned with choice of words.

There is no case for a new trial on this ground.

Since this disposes of the matters raised by the appellant, it follows that his appeal must be dismissed with costs.

JUDGE2

In this appeal I have had the advantage of reading the reasons for judgment prepared by Woodward J.. I agree with those reasons for judgment and with his conclusion that the appeal should be dismissed and that the appellant should pay the respondent's taxed costs.

In rejecting the ground of appeal that the learned trial judge erred in law in interfering too much in the trial I would add one comment. As Sir Robert Megarry said at the Twentieth Australian Legal Convention ((1980) 54 A.L.J. 61 at 64) :

"Litigants in person pose their own special problems for the judge. Inevitably there is a great and inescapable sympathy for any layman struggling with the complexities of legal procedure in strange surroundings . . . . . In order to make any progress the judge frequently has to intervene to a marked extent;. . . . "

Having read carefully the transcript of the hearing before the learned Chief Justice, in my opinion such interventions as occurred were rendered necessary by the fact that the present appellant was not represented by a legal practitioner. In this connection I may add that the appeal book shows that counsel for the present respondent (the plaintiff at the trial) complained that his Honour was assisting the defendant (the present appellant) too much and that as a result there was some unfairness towards the respondent (plaintiff). I am quite satisfied that there was no unfairness to either party.

JUDGE3

In this appeal I have had the advantage of reading the respective reasons for judgment of Woodward J. and Keely J. I agree with both sets of reasons and their conclusion that the appeal should be dismissed with costs.

I desire to only add a comment in respect of ground (2) in the Notice of Appeal that the trial Judge erred in law in interferring too much in the trial and preventing the defendant from cross-examining and putting his case fully and effectively. Having read all the evidence in the case and making due allowance for the sense of frustration which the appellant must have felt there is no substance in this ground.

His Honour was at pains to explain to the appellant the adversary procedure at all stages of the trial and gave the appellant a very full opportunity to conduct his case in his own way and to tell his own version of the discussions between the parties comprehensively and completely.

It is sufficient to refer only to a few examples of His Honour's care in the conduct of the trial in order to ensure that justice was done to the unrepresented appellant.

At pp.41-42 of the Appeal Book it appears that counsel for the respondent was asking questions in a leading form and the learned trial Judge intervened and requested counsel to exercise care in that respect. He also explained the situation to the appellant. His Honour said to the appellant at p.42: ". . . you are entitled to have Mr Richardson ask the questions in a way which does not lead the witness to the answer that Mr Richardson wants. Do you understand." The appellant answered: "Thank you Your Honour. I am not skilled at manipulation but I am quite confident of handling the situation."

Later in the trial when the appellant was himself giving evidence and was being cross-examined by counsel for the respondent, the cross-examiner stopped the appellant from giving an explanation but His Honour intervened to ensure that the appellant was allowed to add his explanation there and then. That happened twice during cross-examination (see transcript pp.95 and 97). Throughout the appellant's evidence the trial Judge did everything that was reasonably possible to ensure that the appellant had the opportunity to give evidence which would establish his own case and to give in cross-examination the fullest explanation which the witness wished to give.