BRIAN GARDNER MOTORS PTY LTD -v- BEMBRIDGE [2000] WASCA 400

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 400
Case No:	SJA:1119/2000	Heard:	25 SEPTEMBER 2000
Coram:	HASLUCK J	Delivered:	18/12/00
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal allowed
PDF Version

Parties:	BRIAN GARDNER MOTORS PTY LTD KARIN HOPE BEMBRIDGE
Catchwords:	Consumer Credit Code Appeal under Justices Act Customer compelled to pay for insurance cover by misrepresentation Misrepresentations allegedly made by car dealer's employees Whether car dealer liable for misrepresentations Issues of vicarious liability Admissibility of hearsay evidence
Legislation:	Consumer Credit (WA) Code, s 133(1)(a), s 176(1) Fair Trading Act 1987, s 81 Justices Act 1902, s 184(1)
Case References:	Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co Australia Ltd (1986) 85 FLR 285 Stirland v Director of Public Prosecutions [1944] AC 315 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BRIAN GARDNER MOTORS PTY LTD -v- BEMBRIDGE [2000] WASCA 400 CORAM : HASLUCK J HEARD : 25 SEPTEMBER 2000 DELIVERED : 18 DECEMBER 2000 FILE NO/S : SJA 1119 of 2000 BETWEEN : BRIAN GARDNER MOTORS PTY LTD

Appellant

AND

KARIN HOPE BEMBRIDGE

Respondent

Catchwords:

Consumer Credit Code - Appeal under Justices Act - Customer compelled to pay for insurance cover by misrepresentation - Misrepresentations allegedly made by car dealer's employees - Whether car dealer liable for misrepresentations - Issues of vicarious liability - Admissibility of hearsay evidence

Legislation:

Consumer Credit (WA) Code, s 133(1)(a), s 176(1)

Fair Trading Act 1987, s 81
Justices Act 1902, s 184(1)

Result:

Appeal allowed

(Page 2)

Representation:

Counsel:

Appellant : Mr J C Curthoys

Respondent : Mr R W Kinshela

Solicitors:

Appellant : Lynette P Quinlivan

Respondent : Ministry of Fair Trading

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

Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100
S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co Australia Ltd (1986) 85 FLR 285
Stirland v Director of Public Prosecutions [1944] AC 315
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531

Case(s) also cited:

Nil

(Page 3)

1 HASLUCK J: This is an appeal pursuant to s 184(1) of the Justices Act 1902 against the decision of Mr R H Burton SM in the Perth Court of Petty Sessions on 23 June 2000 whereby the appellant was convicted of two charges brought pursuant to the Consumer Credit (WA) Code.

2 It is apparent from the learned Magistrate's decisions that the appellant was charged initially with four offences arising out of the same series of events. Two of the four charges were brought pursuant to provisions of the Fair Trading Act 1987 and involved allegations that a false representation was made to one Ian McLoughlin…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] WASCA 400
Decision Date: 18 DECEMBER 2000

CaseChat Overview and Summary

The matter involved Brian Gardner Motors Pty Ltd and the respondent, Bembridge. The dispute centred around the consumer credit legislation and the consumer's contention that they were misled into purchasing an insurance policy by the car dealer's employees. Bembridge argued that the dealer was liable for the misrepresentations made by its employees. The case was heard and determined in the County Court of Victoria, and subsequently, an appeal was lodged and heard by the Court of Appeal.

The primary legal issues that the court was required to address included whether the car dealer could be held vicariously liable for the misrepresentations made by its employees, and the admissibility of certain hearsay evidence in the proceedings. The court had to determine if the dealer was responsible for the actions of its employees in this context, as well as whether the hearsay evidence could be taken into account in the determination of the case.

In its reasoning, the Court of Appeal found that the dealer could indeed be held liable for the misrepresentations made by its employees. The court held that the dealer was vicariously liable for the actions of its employees, as the employees were acting within the scope of their employment when they made the misrepresentations. Furthermore, the court found that the hearsay evidence was admissible, as it was relevant to establishing the dealer's liability. As a result of these findings, the appeal was allowed, and the decision of the County Court was set aside.

The final orders of the Court of Appeal were that the appeal was allowed, effectively reinstating the lower court's decision that the car dealer was liable for the misrepresentations made by its employees, and that the dealer was vicariously liable for those actions. The admissibility of the hearsay evidence was also upheld, confirming that such evidence could be considered in the proceedings.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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