Brown v Stewart - [2022] WASC 399

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BROWN -v- STEWART [2022] WASC 399
CORAM:   MASTER SANDERSON
HEARD:   13 SEPTEMBER 2022
DELIVERED          :   23 NOVEMBER 2022
PUBLISHED           :   23 NOVEMBER 2022
FILE NO/S:   CIV 1166 of 2022
BETWEEN:   ADAM SYDNEY BROWN
Plaintiff
AND
BENJAMIN STEWART
Defendant

Catchwords:

Practice and procedure - Application for pre-action discovery - Turns on own facts

Legislation:

Australian Consumer Law
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	LJ Michelmore
Defendant	:	RL Conder

Solicitors:

Plaintiff	:	L J Michelmore
Defendant	:	Cullen Macleod Lawyers

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

BWS v ARV [No 2] [2021] WASCA 62

MASTER SANDERSON:

By originating summons filed 28 February 2022, the plaintiff sought pre‑action discovery from the defendant. The application was brought under O 26A r 4 of the Rules of the Supreme Court 1971 (WA). The defendant opposed the application on the basis that the evidence did not disclose the plaintiff may have a cause of action against the defendant. Although none of the other requirements of O 26A r 4 were conceded, it was this one point on which the application really turned. The application was supported by an affidavit of the plaintiff sworn 14 February 2022. That affidavit provides a convenient summary of the relevant facts.
On or about 1 May 2019, the plaintiff saw an advertisement for a 'Genuine Bathurst Spec Car' '1968 Holden Monaro HK GTS 327 Coupe' with a 'GTS 327ci V8 engine' (Vehicle). The Vehicle was to be auctioned by an auction house known as Manheim. A copy of this advertisement appears as attachment 'ASB‑1' to the plaintiff's affidavit.
On 7 May 2019 the plaintiff attended a viewing appointment at Manheim's premises. In the course of the appointment, Ms Emily Jones, who was advertised as the contact for viewing the Vehicle, pointed out a number of physical aspects of the Vehicle, including the engine. The plaintiff says he advised Ms Jones that he was interested in the Vehicle but he knew nothing about Holden cars such as the Vehicle. During the course of the inspection, the plaintiff says Ms Jones said she would show the plaintiff what was used to determine the 'genuineness' of the Vehicle.
For the uninitiated, I should say that cars such as the Vehicle have a particular value to collectors. Presumably, there are only a limited number of cars such as the Vehicle still available to collectors. The value of such cars lies in their being the genuine article - that is to say, a car that was produced by General Motors, marketed as a Holden Monaro, had original body work and perhaps most importantly, had the original engine. The photograph in the advertising material to which I have referred above shows that the Vehicle was in a dilapidated condition. The average person would probably regard a car such as this as fit for nothing but scrap. To a collector, it is a treasure. But it is only a treasure if it is genuine.
During the course of the inspection, Ms Jones showed the plaintiff the engine in the Vehicle and drew his attention to the engine number. Ms Jones also showed the plaintiff the chassis number or as it is properly known, the VSN number. She also pointed out other features of the Vehicle which suggested it was genuine. Ms Jones advised the plaintiff the Vehicle was being sold by the government. The plaintiff says he assumed Ms Jones' instructions 'came from a reputable source'. Quite why or how he could have reached that conclusion is not explained.
The plaintiff decided to bid for the Vehicle. On the day of the auction he noticed a sheet of paper placed on the Vehicle's window which said words to the effect that there was a 'strong suggestion from Holden' that the engine was original to the Vehicle. A copy of that note is attachment 'ASB‑2' of the plaintiff's affidavit. In fact the note has six dot points. They are:
·Strong suggestion from Holden that engine is original to Shell.
·Picardy Red, red trim.
·21,836 miles showing.
·Missing tags.
·25 gallon Bathurst tank.
·Adelaide build.
The plaintiff was the successful bidder at the auction. He paid $138,476.08 for the Vehicle. The plaintiff paid a deposit as at the date of auction and the remaining amount on 3 June 2019. Because the Vehicle was not then and is not now driveable it could not be transferred into the plaintiff's name. First, it must be restored and then certified by the Department of Transport of Western Australia as being roadworthy.
Subsequent to the purchase of the Vehicle, the plaintiff began to make his own enquiries. In his affidavit, the plaintiff goes into some detail as to what enquiries he made and whether or not the Vehicle is actually the genuine article. The plaintiff thinks that the engine presently in the Vehicle may not be the original engine and may not fit the description provided pre‑sale. While the plaintiff is not certain that is the case, for the purpose of this application it can be assumed there is a real question as to whether or not the plaintiff got what he thought he was purchasing.
During his investigations and during his discussions with Manheim, the plaintiff became aware that prior to the auction Manheim had engaged the defendant to provide an opinion as to whether or not the Vehicle was a genuine article. In opposition to this application, the defendant swore an affidavit dated 14 July 2022. It would seem that the defendant has expertise in identifying whether or not cars such as the Vehicle are genuine. I should note that it is open to question whether or not the defendant could qualify as an expert so that he could offer opinion evidence in legal proceedings. But that is not an issue which needs to be address for present purposes. The fact is, Manheim regarded the defendant as having some expertise and they asked for his opinion. The defendant says he was contacted by Ms Jones on 4 April 2019. This was the first time he had been contacted about the Vehicle - that is to say, he had not had contact with anyone apart from Ms Jones in relation to the Vehicle. Ms Jones provided him with certain information and a number of photographs. Based upon his 40 years of experience with General Motors Holden (GMH) Vehicles and having looked at the photos, the defendant came to certain conclusions. He summarises those conclusions in pars 13 and 14 of his affidavit. These paragraphs read as follows:
13.On 8 April 2019 I replied to Ms Jones summarizing my view that a number of characteristics of the Vehicle numbering suggested that the bodyshell and the engine were original to the Vehicle. However, I did specifically state to Ms Jones that further enquiries should be made, such as to locate the registration details and ID plates.
14.The ID plates were important and they are the only form of positively identifying just which example the subject vehicle was from the car maker's perspective. A true copy of that email is attached and marked 'BLS-4'.
The defendant says he had no further contact with Ms Jones prior to the auction. He was contacted by the plaintiff after the auction. There followed a series of email exchanges between the plaintiff and the defendant, none of which seem to have involved Manheim. It is unnecessary to detail these email exchanges. Suffice it to say, they have left the plaintiff holding a reasonable doubt the Vehicle is genuine.
Against that background, the plaintiff in his originating summons seeks the following orders:
1. The Defendant discover the following documentation in his possession, custody or control:
(a) all documents which relate to or record the Defendant's communications with other parties regarding:
(i) 'This Monaro GTS '327''; and
(ii) the condition of that car,
prior to being contacted by Manheim regarding the Vehicle;
(b) all documents and records which relate to the communications which the Defendant had with Manheim regarding the Vehicle;
(c) all documentation which contain:
(i) details of all materials used to compare the 'stamped numbers and key identifiers from … [Mr Brown's] vehicle' including the 'other known Holdens'; and
(ii) details of the reference materials of the 'many other known HK Holdens' which the Defendant referred,
which the Defendant used to determine whether the Vehicle was a genuine HK Holden Monaro GTS '327' car;
(d) the relevant excerpts from 'the list' which contains all references to:
(i)the Vehicle's engine number;
(ii) 32775562T0713H5; and
(iii) the VSN of HK35786A;
(e) all documentation which relate to all Picardy Red/Goya Red '327' vehicles manufactured in Adelaide; and
(f) all documentation which relate to all 'Goya Red' Adelaide built '327' HK Holdens.
2. The Defendant provide any copies of the above documentation requested by the Plaintiff.
3. The Defendant pay the costs of this application.
As I indicated above, there was no dispute between the parties as to the applicable law. Both counsel referred to the Court of Appeal decision in BWS v ARV [No 2] [2021] WASCA 62. In that case, their Honours said that to enliven jurisdiction an applicant is required to:
Demonstrate more than mere assertion, conjecture or suspicion, but does not have to positively establish the existence of cause of action. What the applicant must produce is evidence showing that he, she or it may have a cause of action.[1]
[1] BSW v ARV [No 2] [33].
It is the plaintiff's position that he may have a cause of action under s 18 of the Australian Consumer Law. The section has four elements:
(a)It imposes a prohibition on natural persons and corporations engaging in trade or commerce which misleads or deceives others;
(b)the prohibition is aimed as preventing conduct from being engaged in which leads or is likely to lead a reasonable person into error;
(c)what is required is that the impugned conduct is capable of misleading a reasonable person; and
(d)the phrase 'trade and commerce' includes any business or professional activity irrespective of whether it is carried on for profit.
The facts make it clear in this case the defendant made no representation directly to the plaintiff. Rather, the defendant gave certain advice to Manheim. Of course if it can be established by the plaintiff that he relied on the advice given by the defendant to Manheim, even if that advice was not provided directly to him, then liability could attach. But it is important to note just what advice was given by the defendant to Manheim. Importantly, he advised Manheim to make further enquiries. Specifically, he recommended at least three steps:
(a)'a check of the body shell by a knowledgeable person who specialises in cars such as the vehicle …';
(b)making contact with the current owner to 'learn the whereabouts of the ID plates'; and
(c)obtaining information regarding the 'registration history record of the ID particulars along with a vehicle description'.
It would appear that Manheim took none of these steps. (I am making no finding of fact in this regard. That would seem to be the conclusion which can be drawn from the correspondence but that correspondence may not be complete and Manheim may have taken steps that do not emerge from the evidence relied upon in this application). In any event, it is difficult to conclude the defendant offered any view to Manheim and through Manheim to the plaintiff that the Vehicle was genuine. In other words, there is nothing to suggest he engaged in misleading or deceptive conduct.
The plaintiff faces a further difficulty. Manheim seemed to have been careful to ensure that what they said about the Vehicle in their advertising material was equivocal. For instance, in the initial advertisement seen by the plaintiff, Manheim note the Vehicle 'is missing the original tags'. On the page which was on the Vehicle at the date of auction, the wording was to the effect there was a 'strong suggestion from Holden' the engine was genuine. Nowhere is there an unequivocal statement the Vehicle is genuine. Perhaps more importantly, nowhere is there a statement to the effect the defendant is of the opinion the Vehicle was genuine.
On balance, I am not satisfied the plaintiff has satisfied the jurisdictional requirement to make the orders sought. I am not satisfied on the evidence available the plaintiff 'may' have a cause of action. This is one of those instances where the evidence amounts to mere assertion, conjecture or suspicion. While I accept the evidence does not have to establish positively the existence of a cause of action, in this case the matters relied upon by the plaintiff are not such as to warrant an order for discovery.
The plaintiff's application will be dismissed. The plaintiff ought pay the defendant's costs of the application including reserved costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Associate to Master Sanderson
23 NOVEMBER 2022