Boffo v N C Nominees Pty Ltd and Anor (No 2) No. Scciv-01-1202

BOFFO v N C NOMINEES PTY LTD and ANOR (No 2)
[2002] SASC 389
Full Court: Perry, Williams and Gray JJ

PERRY J. On 30 July 2002 this Court dismissed an appeal from a judgment given in the District Court following a trial in that court of a claim by the appellant against the respondents.[1]
[1] Boffo v N.C. Nominees and Anor [2002] SASC 242.
On 19 August 2002 the appellant filed an application seeking the re-opening of the appeal.
The application came on for hearing on 19 September 2002. After hearing counsel for the appellant, and without calling upon counsel for the respondents, the Court dismissed the application, reserving the right to publish reasons later.
In the application, the appellant sought orders in the following terms:
“1.That the Court revoke the order made herein on 30 July 2002 and substitute in lieu thereof an order that the appeal be allowed and that the action be remitted to His Honour Judge Noblet for further consideration.
2.Such further or other order as this Honourable Court may deem fit.”
The circumstances in which the Full Court might properly re-open an appeal once it has been heard and judgment given have been canvassed in recent decisions of the court, more particularly McAdam v Robertson,[2] Australian Education Union, SA Branch v Grieve(No 2)[3] and Sheahan and Anor v Verco and Hodge (No 2).[4] In each of those decisions the application to re-open the case was brought before the order of the Full Court disposing of the appeal had been sealed.
[2] (1999) 73 SASR 360.
[3] Full Court, 8 September 1999, judgment No. [1999] SASC 369 (unreported).
[4] Full Court, 12 September 2002, judgment No. [2002] SASC 307 (unreported).
In this case, the order of the Full Court dismissing the appeal was sealed on 8 August 2002. It was sealed at the behest of one of the respondents, namely N.C. Nominees Pty Ltd trading as MidCity Motor Auctions (“MidCity”).
The application to re-open the appeal was, as I have pointed out, filed subsequently on 19 August 2002. The solicitors for both respondents had previously been advised by letter of 31 July 2002 that the appellant was considering the possibility of applying to the Full Court to re-open its decision. In the letter they ask that the respondents “refrain from having the orders of the Full Court sealed without prior notice”.
Before sealing the order allowing the appeal, Thomson Playford wrote to the appellant’s solicitors stating that notwithstanding that request, they proposed to proceed with the sealing of the order of the Full Court. At the same time they indicated in the letter that they did not consider that the appellant would be prejudiced by the sealing of the order, and they drew attention in that respect to SCR r 3.04(f).[5]
[5] That rule provides:
“3.04The Court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so:
(a).........
(f) Correct or revoke any order correct, revoke or vary any order by a subsequent order. ........”
On the hearing of the application to re-open the appeal, neither of the respondents suggested that the application was incompetent by reason of the sealing of the order allowing the appeal.
In these circumstances, I do not deal further with the question of the significance of the sealing of the order. I proceed on the footing that if grounds were to be made out which would justify re-opening the appeal, it was not too late to do so.
In the District Court action, the appellant sought damages against MidCity and Esanda Finance Corporation Ltd (“Esanda”) with respect to his purchase of a Ford station wagon at a public auction conducted by MidCity.
The relevant circumstances surrounding the plaintiff’s purchase of the vehicle are set out in detail in the earlier judgment of the Court and it is unnecessary to set them out again, except to the extent necessary to make these reasons intelligible.
The action in the District Court proceeded on the basis of what were alleged to be misrepresentations in writing which, in the District Court statement of claim, the appellant alleged were contained in two notices under the Second Hand Vehicle Dealers Act 1995, more particularly notices described as Form 6 and Form 7.
It was Form 6 which was the critical document in that respect, in that it contained a reference to an odometer reading of a specified number of kilometres which was clearly wrong. That this was so was plain from the fact that Esanda had in its possession a document indicating that on a date some years earlier the odometer reading was shown to be substantially higher.
Insofar as the Form 6 also contained the words “history unknown”, to the extent that Esanda must be taken to have known of the earlier higher odometer reading, the statement was untrue.
Despite those circumstances, the appellant’s action for misrepresentation, insofar as it turned upon the information given in the Form 6, was dismissed. This was on the footing that although under the Second Hand Vehicle Dealers Act the Form 6 should have been displayed on the vehicle, the appellant did not see it until after the sale had been effected.
Notwithstanding the learned trial judge’s dismissal of the allegations based upon the written misrepresentations, more particularly the information contained in the Form 6, he nonetheless gave judgment against Esanda (but not against MidCity) pursuant to s 52 of the Trade Practices Act 1974 (Cth) by reference to separate statements which had been made in an advertisement for the auction published in the press shortly before the sale.
Against that background, the specific grounds of appeal raised by the appellant in the notice of appeal filed in this Court relevantly were as follows:
“1.The learned judge erred in law in failing to address the misrepresentations averred in the further amended statement of claim.
2.On the whole of the evidence the learned judge ought to have found that the misrepresentations as averred had been proved and were actionable at the suit of the appellant against both respondents.”
The misrepresentations averred in the further statement of claim were alleged in the statement of claim to be “ ... in writing and contained in two notices under the Second Hand Vehicle Dealers Act 1995 entitled Form 6 and Form 7 respectively given to the plaintiff by MidCity’s servant Mr P. Hawkes at the time of the sale”.[6]
[6] Further amended statement of claim, para 3.
In the presentation of his case in the District Court, the appellant did not depart from those allegations. His case was based on the alleged written misrepresentations, more particularly those contained in the Form 6.
Likewise, as appears from the notice of appeal to this Court, the complaint with respect to the alleged failings by the learned trial judge with respect to his treatment of the alleged misrepresentations pivoted on those “averred” in the statement of claim upon which the trial proceeded in the District Court.
However, on the hearing of the appeal, Mr Manetta for the appellant submitted that the learned trial judge erred in failing to deal with an argument which had been put to him in which the appellant contended that the respondents were guilty of misrepresentation by silence, by having failed to disclose that the odometer reading displayed on the vehicle at the time of sale was obviously far lower than it should have been. When he put that submission to the Court, a dispute arose between Mr Manetta and counsel for the respondents as to whether or not that argument had been put to the learned trial judge. In the face of that dispute, by consent, the transcript of the opening and closing submissions of the parties at the trial was furnished to the Court.
Subsequent perusal of that transcript indicated that from start to finish, the appellant’s case was presented at the trial on the footing that the relevant misrepresentations were written representations, namely those contained in the Form 6.
Against that background, in the earlier reasons which I delivered in this matter, which were concurred in by the remaining members of the Court, I observed:
“31.On the hearing of the appeal, Mr Manetta for Mr Boffo offered yet another basis upon which he contended that Mr Boffo was entitled to recover for misrepresentation. He submitted that the learned trial judge:
‘... overlooked the operation of misrepresentation by concealment arising out of what was not disclosed (that ought to have been) prior to purchase. The common law has already treated fraudulent concealment as a species of deceit ...’[7]
With respect to Mr Manetta, in my opinion, his submission to that effect can only be construed as an attempt to put to this Court a case which was neither pleaded, nor advanced at the trial.”
[7] Appellant’s outline of argument, para 4, citing Schneider v Heath (1813) 3 Camp 505, 508-9, 170 ER 1462-3; Horsfall v Thomas (1862) 1 H & C 90, 158 ER 813, 817; Greenfield v Edwards (1865) 2 De GJ & S 582, 598-9, 46 ER 510, 507-8; Cavendish Bentinck v Fenn (1887) 12 App Cas 652, 671 and cf Central Ry Co of Venezuela v Kisch (1867) LR 2 HL 99; Oakes v Turquand (1867) LR 2 HL 325 and Phillips v Foxall (1872) LR 7 QB 666, 679.
I then set out in the reasons extracts from Mr Manetta’s closing address to the learned trial judge which support that conclusion.
What is important to note from that history of the matter, is that when for the first time the question of alleged misrepresentation by concealment was raised with this Court, it was raised in the context of an assertion that the matter had been argued before the learned trial judge and that he had erred in failing to deal with the question.
The present application is unusual in that it is not based upon any suggestion that this Court either erred with respect to any factual matter or as to any question of law in circumstances justifying the re-opening of the appeal. On the contrary, Mr Manetta does not challenge the finding that no argument based upon alleged misrepresentation by concealment was ever raised either in the pleadings or in any other way in the District Court. Rather, the present application is advanced on the footing that notwithstanding that that was so, and notwithstanding the manner in which the argument was put to this Court on the hearing of the appeal, this Court erred in failing nonetheless to address the question of misrepresentation by concealment.
In my view, such an argument is clearly untenable. Not only is there no complaint in the notice of appeal which seeks to raise for the first time the question of misrepresentation by concealment, but this Court clearly dealt with the only argument put to the Court in this respect during the course of oral submissions.
Looked at in that light, what the appellant seeks to do in advancing the present application, having failed in the argument advanced on the hearing of the appeal, is to put a further argument. The further argument is that, notwithstanding the fact that the appellant now does not challenge the finding that the learned trial judge did not err in the respect alleged as the argument based on fraudulent concealment was never put to him, nonetheless this Court should now re-open the appeal so that the argument can be re-agitated on the footing that nonetheless this Court should consider it.
Seen in that light, the application cannot possibly satisfy any of the principles which govern the exercise of the power to re-open an earlier decision of this Court.
As was emphasised in McAdam v Robertson (supra), there is a distinction between “the decision to re-open, and the scope of the review once that decision is made”.[8] Ordinarily, a decision in favour of re-opening an appeal is to correct a miscarriage of justice, more particularly where there has been a misapprehension of fact or of law which, in fairness to the parties, should be corrected.
[8] Ibid per Doyle CJ, 73 SASR 365.
In the decision of the High Court in Autodesk Inc v Dyason (No 2),[9] the relevant principles were identified in the judgment of Mason CJ in the following terms:
“These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.”
[9] (1993) 176 CLR 300.
Here, the appellant, having failed on the arguments put both in the District Court and before the Full Court on the hearing of the appeal, now wishes to re-open the appeal so as to put a further argument, not on the basis that this Court has misapprehended any question of fact or law, or that the learned trial judge committed any such error, but on the footing that this Court, having disposed of the appeal, should re-open the matter to entertain an argument not previously put.
To allow this course would clearly be outside of the principles governing the exercise of the discretion to re-open an appeal.
Furthermore, to permit the new argument to be put would be to raise a completely different factual and legal basis from that upon which the appellant chose to present his case in the court below.
It is for these reasons that I joined in the dismissal of the application.
WILLIAMS J. I agree.
GRAY J.                 I agree.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.    Boffo v N.C. Nominees and Anor [2002] SASC 242.
2. (1999) 73 SASR 360.
3. Full Court, 8 September 1999, judgment No. [1999] SASC 369 (unreported).
4. Full Court, 12 September 2002, judgment No. [2002] SASC 307 (unreported).
5.    That rule provides:
“3.04The Court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so:
(a).........
(f)     Correct or revoke any order     correct, revoke or vary any order by a subsequent order. ........”
6.    Further amended statement of claim, para 3.
7.    Appellant’s outline of argument, para 4, citing Schneider v Heath (1813) 3 Camp 505, 508-9, 170 ER 1462-3; Horsfall v Thomas (1862) 1 H & C 90, 158 ER 813, 817; Greenfield v Edwards (1865) 2 De GJ & S 582, 598-9, 46 ER 510, 507-8; Cavendish Bentinck v Fenn (1887) 12 App Cas 652, 671 and cf Central Ry Co of Venezuela v Kisch (1867) LR 2 HL 99; Oakes v Turquand (1867) LR 2 HL 325 and Phillips v Foxall (1872) LR 7 QB 666, 679.
8. Ibid per Doyle CJ, 73 SASR 365.
9. (1993) 176 CLR 300.

[2002] SASC 389

21 November 2002