Boffo v NC Nominees Pty Ltd

[2003] HCATrans 298

[2003] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A46 of 2003

B e t w e e n -

GAETANO GREGORY BOFFO

Applicant

and

N.C. NOMINEES PTY LTD

First Respondent

ESANDA FINANCE CORPORATION LTD

Second Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 12.14 PM

Copyright in the High Court of Australia

MR S. WALSH, QC:   If the Court pleases, I appear with my learned friend, MR M.B. MANETTA, for the applicant.  (instructed by Mellor Olsson)

MR M.A.W. BIRCHALL:   I appear for the first respondent, if your Honours please.  (instructed by Thomson Playford)

MR C.D. McCARTHY:   May it please the Court, I appear for the second respondent.  (instructed by Georgiadis Lawyers)

GLEESON CJ:   Yes, Mr Walsh.

MR WALSH:   If the Court pleases, we are here today to seek an indulgence of the Court when it became apparent that the matter was to proceed and on instructions on the basis of an amendment to the application the applicant sought by notice of motion to do so, but the matter has been referred to this Court today for that application to be heard as I understand.

GLEESON CJ:   What is your application, to amend or to adjourn?

MR WALSH:   Our application is to adjourn and also to have leave to amend the application.

GLEESON CJ:   Are the two things related?

MR WALSH:   Yes, they are, your Honour.

GLEESON CJ:   Perhaps you had just better explain to us then.

MR WALSH:   Yes, your Honour.  There is a notice of motion but, in essence, what has happened is that the applicant has understood that its current special leave points do not enjoy much prospect of success but that there may be a special leave point which is not currently articulated in the application.

GLEESON CJ:   What is that?

MR WALSH:   The special leave point which we seek to articulate is, in essence, whether there should be in the elements – or for an action for deceit, whether that should be restated so as to make it clear that there is no distinction between positive misrepresentation and misrepresentation in silence in circumstances where consumer legislation is involved and there was a requirement to give notice of certain facts.

GLEESON CJ:   I thought this was a case about damages.

MR WALSH:   It is a case ultimately about damages and the applicant had sought exemplary damages, but he cannot obtain exemplary damages unless he can prove that, in effect, there was fraud or akin to it.

GLEESON CJ:   Is this a point that was raised in the court below?

MR WALSH:   The point was raised in this way.  Can I take you to the application booklet.  It was not as precise as one might hope but it was in this way, firstly, at page 55 of the booklet at about point 7 – this was part of the submissions at trial – and your Honours will see that the proposition was put:

It represents a high‑handed disregard of the plaintiff’s rights because those rights aren’t simply the common law right not to be misled.

Mr Boffo and all purchasers of secondhand vehicles have a statutory right to be told information.  The Secondhand Vehicle Dealers Act was passed so that cases like this would not have to occur, so that people in the defendant’s position could not evade their responsibilities to divulge what they know of a vehicle’s history that might ‑ ‑ ‑

GLEESON CJ:   Correct me if I am wrong, Mr Walsh, but your client lost in the courts below, as I understand it, on the basis that he was unable to prove that the car was worth less than what he paid for it.

MR WALSH:   He succeeded in part, your Honour.  He succeeded in recovering some damages on the basis of relief, but not damages that would include exemplary damages.

GLEESON CJ:   Now, what has that to do with the point that you now wish to raise?

MR WALSH:   Your Honour, the way in which he must demonstrate an entitlement to exemplary damages is, in effect, to prove fraud or something close.

GLEESON CJ:   Now, where do we find the Full Court dealing with his claim for exemplary damages?

MR WALSH:   Your Honour, the point was not articulated in precisely the way to seek to articulate it now.

GLEESON CJ:   So you want to raise a point that was not taken in the Full Court?

MR WALSH:   On my instructions, it was raised in ‑ ‑ ‑

GLEESON CJ:   Was there a notice of appeal to the Full Court?

MR WALSH:   Yes, there is, your Honour.

GLEESON CJ:   Let us see that.  Let us see where the point is taken there.

MR WALSH:   Thank you, your Honour.  Yes, I do not think it appears even in the notice of appeal, your Honour.  This is to the Full Court, your Honour?

GLEESON CJ:   Yes.  You are seeking special leave to appeal from a decision of the Full Court.

MR WALSH:   Yes, quite so, your Honour.  Page 13, your Honour, and paragraph 4 raises the question of exemplary damages at the top of page 14, but it does not articulate it precisely in the way in which we put it and we acknowledge that.

GLEESON CJ:   Now, was that point pursued in the Full Court?

MR WALSH:   I am instructed it was, your Honour.

GLEESON CJ:   And where do we find the Full Court dealing with it?

MR WALSH:   The Full Court on an application to reopen considered that it was not raised.

GLEESON CJ:   Where do we find that?

MR WALSH:   That is in the second judgment appearing page 35 and his Honour Justice Perry deals with the matter at page 39 at about paragraph 26 – I will not read it – and over the page.  Paragraph 28, of course, is the decision.

GLEESON CJ:   Yes.

MR WALSH:   But, on the other hand, we have quotations which show that the issue was raised, although not quite precisely the way in which we raise it now.  So the applicant has come to an understanding that he cannot proceed with the special leave points originally articulated, that if he is to have some chance of success in relation to an application to this Court it must be reformulated.  A notice of motion was ‑ ‑ ‑

GLEESON CJ:   All right.  We will hear what your opponents have to say to the application.

MR WALSH:   Yes, thank you, your Honour.

GLEESON CJ:   Yes, Mr Birchall.

MR BIRCHALL:   Your Honours, we oppose the application on these grounds.  The appeal is solely against the refusal of the Full Court to reopen the appeal.  The material that Mr Walsh read to you was from the first appeal where the court dismissed the appeal.  The appeal to this Court, as set out in page 44 of the application book, is only from the refusal to reopen, and if I may read it:

The applicant applies for special leave to appeal from the whole of the judgment of the Full Court of the Supreme Court of South Australia made on 19 September 2002 for which reasons were published on 21 November 2002 whereby the said Full Court refused the applicant’s application that it re‑open its judgment delivered on 30 July 2002 –

All of the grounds of appeal:

1.  The Full Court erred in law in refusing to re‑open its judgment.

2.  The Full Court erred in law in holding that it had not in its earlier judgment misapprehended the law . . . 

(a)  failing to re‑open its judgment to adjudicate on the argument of misrepresentation by silence raised by the applicant at the hearing of the appeal;

. . . 

3.  The Full Court ought to have re‑opened its earlier judgment –

The only appeal is against the refusal to reopen.  All the grounds of appeal relate only to the refusal to reopen.  Now, in relation to the refusal to reopen, that application was as set out in the notice of application to reopen which is set out at page 38 of the application book and that relates, of course, to the second hearing when the court refused the application to reopen, and that is at line 15 where the court said:

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 –

and they are set out there.  It then goes on to set out what the averments were in the original pleadings in the statement of claim and then it deals with the question of appeal and, of course, the point that is being made there is that positive averments were being made, namely that misrepresentation occurred because he had received a Form 6 which was deceptive.

Now, Justice Perry for the court on the application to rehear set out what was argued at the first hearing, if I put it that way, at the bottom of page 38 where he said:

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.

What it was held in relation to the present appeal, the appeal from which the appellant appeals, is that the application as set forth at the bottom of page 39 was:

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 ‑ ‑ ‑

GLEESON CJ:   Yes, we have read that.

MR BIRCHALL:   Now, the Full Court went on to say at line 15:

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.

So the sole question before the Full Court on the reopening on the judgment appealed from was whether the court should have permitted,

notwithstanding the concession made by counsel that there was no error in fact or law and that he had argued the question at the earlier hearing whether the court should have reopened the appeal to allow that question to be further agitated.

GLEESON CJ:   Yes, we understand your argument, thank you.

MR BIRCHALL:   So, accordingly, as the only appeal is in relation to the miscarriage of the discretion on that point, we oppose the application and, of course, we say that the appeal, even if the application was allowed, would be doomed to failure because there was never any proof of loss.

GLEESON CJ:   Mr McCarthy, what do you say?

MR McCARTHY:   Your Honour, succinctly, the matter put by Mr Manetta in the Full Court was a new argument which is misrepresentation by silence.  What is now sought to be put by my very learned friend, Mr Walsh, is now a slightly different argument yet again and that is a matter of whether or not positive misrepresentation or a misrepresentation by silence matters under the Second‑Hand Vehicle Dealers Act, a matter that was not raised in any way, shape or form prior to the notice of motion put before this Court.

Now, your Honours, the next points are substantially similar to my friend.  Ultimately, even if this Court were to grant leave and hear the appeal, it cannot succeed because damages were never proven.  There is no evidence at all of the value of this vehicle.

The last matter that I would ask the Court to consider is had the case been one that my client was defeated, that my learned friend Mr Birchall’s client had not done something in the way of putting notice on a vehicle, that would have made the case very different for my client in the way that we approached the plaintiff’s case and certainly the case against our agent, the auctioneer.

GLEESON CJ:   Thank you.  Yes, Mr Walsh.

MR WALSH:   If the Court pleases, because of the reference to the quote at page 54 ‑ ‑ ‑

GLEESON CJ:   This litigation seems to involve a series of wrangles over what happened at the last stage of the proceedings and whether something was argued and whether a new point can be thought up at the next stage.

MR WALSH:   Quite so, your Honour.  We do not resile from that and the applicant accepts that that is not a proper basis for coming to this Court

seeking special leave under the circumstances.  We accept that readily.  The point that we make, however, is that at page 54 it is clear that contrary to what my learned friends say, and in a sense contrary to an observation in the Full Court judgment in its second decision, the issue was raised.  The fact is that it was raised.  The second issue raised by my learned friends is that no damages were proven but the issue is exemplary damages.

GLEESON CJ:   When there are wrangles, as I say, about what was raised in courts below and what was not raised, the best way of resolving it, in my experience, is to look at the notice of appeal that was filed.

MR WALSH:   Yes.

GLEESON CJ:   If a point was raised and argued in the court below and was decided against the party who is appealing, it is very likely that it will appear in the notice of appeal.  If it does not appear in the notice of appeal, that is usually a pretty good indication that it is not a point that was raised.

MR WALSH:   It arises in accordance with paragraph 4, we say, of the notice of appeal which I took your Honours to earlier.  I cannot put it any higher than that.  That is the way it arose and we say that this is an issue of considerable importance to this person.  It is an issue of considerable importance generally, namely, what is the effect of consumer legislation that requires a positive thing to be said in relation to the remedy in deceit.  If it is not articulated in the way we seek, then people such as the defendants in this case, who have information knowing that it is wrong, can just say “No, we’re silent.  We’re not making a positive representation”.  That is the difficulty and that is the point.  If the Court pleases.

GLEESON CJ:   The applicant who seeks leave to appeal from a decision of the Full Court of the Supreme Court of South Australia refusing to reopen an appeal that had been earlier determined against the applicant seeks now to amend the application for special leave to appeal to this Court to raise a point that was not raised in the original application for special leave to appeal to this Court.

Having regard to the nature of the application for special leave to appeal and to the history of these proceedings as recounted, in particular, by Justice Perry in his reasons for judgment in the Full Court of the Supreme Court of South Australia, we are of the view that the application to amend the present application should be refused.  Is there anything further you want to say in support of the application?

MR WALSH:   No, there is nothing further I can put to the Court.

GLEESON CJ:   Senior counsel for the applicant has correctly acknowledged that in those circumstances the application for special leave to appeal is difficult to sustain.  In the Court’s view no error has been shown in the reasoning of the Court of Appeal in the decision in question and the application for special leave to appeal is refused with costs.

AT 12.32 PM THE MATTER WAS CONCLUDED