Chen v State Transit Authority
[2013] NSWSC 2028
•16 December 2013
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Chen v State Transit Authority [2013] NSWSC 2028 Hearing dates: 16 December 2013 Decision date: 16 December 2013 Before: McCallum J Decision: Leave to appeal on grounds 1 and 3 refused; summons dismissed; plaintiff ordered to pay the defendant's costs as agreed or assessed on the ordinary basis.
Catchwords: APPEALS - appeal from Local Court - unrepresented plaintiff - grounds of appeal raising pure questions of fact Legislation Cited: Local Court Act 2007 Cases Cited: Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 Category: Principal judgment Parties: Yan Ping Chen (plaintiff)
State Transit Authority (defendant)Representation: Counsel:
Y Chen (plaintiff self-represented)
M Bennett (defendant)
Solicitors:
Sparke Helmore Lawyers (defendant)
File Number(s): 2013/265649 Publication restriction: None
Judgment - EX TEMPORE
HER HONOUR: This is an appeal from a decision of the Local Court sitting in its General Division in proceedings brought by Yan Ping Chen against the State Transit Authority.
The hearing of the claim extended over three separate days on 19 March, 10 May and 13 June 2013. The Magistrate gave judgment on 16 August 2013, stating his reasons orally. His Honour rejected Ms Chen's claim and gave judgment for the defendant. Ms Chen now appeals against the whole of that decision.
Ms Chen was legally represented in the proceedings below but has appeared for herself in the appeal.
The appeal is brought under the Local Court Act 2007. Section 39 of the Act confers an appeal as of right but only on a question of law. Section 40 of the Act provides that a party may appeal on a ground that involves a question of mixed law and fact but only by leave of this Court. The summons claims leave to appeal. However, no doubt reflecting Ms Chen's lack of legal training, the summons does not clearly articulate the grounds on which the appeal is brought.
In oral submissions today Ms Chen was able to distil the following three errors she alleges were entailed in the Magistrate's decision.
First, Ms Chen contends that the Magistrate rejected the claim on the basis that Ms Chen's English is not good and that she must have misunderstood the critical telephone conversation on which her claim is founded. Ms Chen submitted that that finding was wrong.
Secondly, she contends that the Magistrate rejected the claim because Ms Chen was unable to provide a recording of the critical phone conversation. Chen contends that the defendant is required by law to maintain a recording of such telephone conversations and, if I have understood her ground correctly, contends on that basis that the absence of a telephone recording ought to have fallen to the detriment of the defendant rather than the plaintiff.
Thirdly, Ms Chen contends that the Magistrate trusted the defendant's witnesses, whereas those witnesses are liars and ought not to have been trusted by his Honour.
It may be seen that the first and third grounds articulated by Ms Chen in argument today are probably properly regarded as pure questions of fact. At best they are questions of mixed law and fact.
Ground two may perhaps be understood to raise an error of law. Ms Chen did not file an affidavit as required under r 40.14 of the Uniform Civil Procedure Rules. That rule requires the plaintiff in an appeal such as the present to put before the Court a copy of the reasons for the decision of the Court below, a copy of the transcript and a copy of any exhibit, affidavit or other document.
Ms Chen provided a copy of the reasons for decision and the defendant provided an affidavit which annexed all of the relevant affidavits and exhibits, but the transcript of the proceedings below was not before me. I am nonetheless satisfied that I am able to determine the appeal on the strength of the material before me for the reasons that follow.
The claim in the Court below was pleaded in an amended statement of claim filed on 20 July 2012. It may be summarised as follows. Ms Chen is the owner of a business which trades as "Exclusive Gifts and Tobacconist" in Goulburn Street, Sydney. An aspect of the business is the sale of a large volume of bus tickets. In early 2010 the government announced a significant overhaul of the State's public transport ticketing products. An aspect of the announcement was that people or businesses described as "valued ticket resellers" would be assisted in the transition to the new tickets. Ms Chen's business is, according to one of the defendant's witnesses, one of the top five ticket resellers in Sydney.
Ms Chen's claim was based on the contention that in early July 2010 she contacted the State Transit Authority to make an enquiry as to the process for obtaining refunds for old tickets pending the introduction of the new ticketing system.
In an affidavit sworn 22 October 2012 at paragraph 17 Ms Chen gave the following evidence as to the telephone conversation she says occurred on that date:
A phone conversation took place between us with the words to the effect of:
I said: "Mr Kyle, all these people coming to the shop every day, asking for the tickets refund! It really makes it hard for me to work, as the shop is too busy! I tell them to go to State Transit, but many of them do not understand English. They claim that because they have bought the tickets from me I should sort it out for them. What can I do about it?"
Mr Mason said: "You should help your customers to refund the tickets. I know that you sell a lot of tickets. In fact, you will also help us here at State Transit. What you can do is collect the old tickets from the customers and then refund the customers with the retail price. Then you need to take the old tickets to State Transit Authority office at Wynyard station in person. You should not return the tickets to State Transit Authority by a courier, as in this case the refund will be considered as a store refund, and you will be reimbursed with the cost value only. In two weeks after you return the old tickets, you will receive a cheque from the State Transit Authority reimbursing you for the retail value of the bus tickets".
An affidavit was affirmed in the proceedings by Mr Kyle Mason as to his recollection of that conversation. Without descending into all of the detail of the affidavit, Mr Mason denied Ms Chen's account. Specifically, he denied at any stage telling Ms Chen that she would receive a cheque for the refund of her unsold stock. He denied telling her that she would be helping the State Transit Authority if she allowed her customers to return their used tickets to the Goulburn Street tobacconist. He specifically said that he had not at any stage said or done anything that could be interpreted as an offer that the State Transit Authority would pay Ms Chen the retail value of any ticket that she had purchased from a customer or had received from a customer in exchange for a refund. Mr Mason said that he had no authority to make any such offer.
It may accordingly be seen that a critical issue in the proceedings was whether the conversation described by Ms Chen in her evidence occurred in the terms she said. The Magistrate held that it did not.
His Honour gave careful and thorough reasons for reaching that conclusion. Incidentally, his Honour's reasons also reveal that he was careful to conduct the trial in a manner that was fair to Ms Chen, particularly having regard to the fact that her claim turned on the establishment of an oral contract in circumstances where it was evidently plain to his Honour that English was not her first language.
The Magistrate's reasons first recite the background I have recited and note at page 2 that the critical conversation was that set out at paragraph 17 of the affidavit to which I have referred. His Honour noted that the existence of any conversation in such terms was "in substantial dispute". His Honour stated, unexceptionably, that if that conversation were not proved on the balance of probabilities to have occurred in the terms alleged so as to constitute an oral contract between the plaintiff and the defendant, then the plaintiff's case in contract must fail.
His Honour noted when the matter first came before him on 19 March 2013 Ms Chen did not have the benefit of an interpreter. It became clear to his Honour at that point that there was an issue as to whether the plaintiff had sufficient proficiency in the English language to understand the course of the proceedings. Specifically, his Honour noted that some of the plaintiff's answers in evidence did not seem responsive.
For the reasons recorded in his Honour's judgment at pages 4 to 5 of the transcript his Honour concluded that the only fair course was to afford the plaintiff an opportunity to have the proceedings adjourned so that an interpreter could be obtained to assist her in the conduct of the action. In his reasons for decision, his Honour reconsidered the conclusions he had reached at that point of the trial.
At page 6 of the judgment his Honour gave careful consideration to the terms of the plaintiff's evidence and (at pages 6 to 7) to the terms of Mr Mason's evidence. His Honour concluded at page 8 of the judgment:
I do not accept the plaintiff's evidence as to the terms of the conversation with Mr Mason on or about 7 July 2010. I do not accept that he on this one occasion agreed to something contrary to his training and work practice. I prefer his evidence. The plaintiff may well have believed that some conversation as she recalls in her own mind occurred, notwithstanding that she was assisted in the preparation of her material by an unnamed friend.
The last sentence in that passage I have just set out refers to the fact that the plaintiff had acknowledged in evidence that the important words set out at paragraph 17 of her affidavit may not have been her words but those of a "friend" who assisted her in preparing the affidavit.
On the strength of the findings I have recorded, his Honour held that he was not satisfied that there was a contract as alleged by the plaintiff and, accordingly, that the claim in contract failed.
The plaintiff had alternatively sought to prosecute a claim based on restitution. The magistrate doubted his power to determine that claim, but in any event held that his conclusion as to the evidence concerning the critical conversation was also fatal to a claim based on restitution. His Honour, accordingly, gave judgment for the defendant.
The first ground of appeal as articulated by Ms Chen in argument this morning in effect seeks to have that factual issue redetermined. As I understand the issue Ms Chen has raised, it seems to be a pure question of fact. I do not think it is open to me to embark on a rehearing of the questions of fact carefully determined by his Honour. If I am wrong as to its being a pure question of fact and it is one that involves a question of mixed law and fact, I am not persuaded that it is appropriate to grant leave as required under s 40 of the Local Court Act.
Mr Bennett, who appeared for the defendant below and in the appeal, relied on the remarks of Gleeson CJ in Swain v Waverley Municipal Council (2004) 220 CLR 517 at [2] which, although not directly applicable to the present appeal, are helpful in considering the question of leave. His Honour said:
In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, Courts of Appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance.
For the reasons I have already explained, I am persuaded that the fact-finding process in the present case was both fairly conducted and carefully determined. I am not persuaded that there is any basis on which leave should be granted in effect to re-litigate the findings of fact his Honour made.
Ground 3 also raises issues of pure fact, in my understanding of the way in which the case is put. In support of the contention that the defendant's witnesses had lied, Ms Chen took me to a number of paragraphs of the affidavit of Mr Peter Bannon sworn 20 December 2012 in the proceedings below. In particular, Ms Chen referred to paragraph 18 of the affidavit where Mr Bannon states that she had returned 100 blue Travel 10 tickets and received a credit. That statement was supported by an adjustment note annexed to the affidavit. Ms Chen contended that that was "not true", but did not take me to any material on the strength of which I could properly conclude, even if it was not accurate, that it was a lie on the part of Mr Bannon.
Ms Chen also took me to paragraph 43 of the affidavit where Mr Bannon states that a credit note was processed to Goulburn Street Tobacconist's account on 15 July 2010 for $148,242.80. Ms Chen tendered in the appeal a copy of the relevant remittance advice which appears to reveal that in fact a credit in that sum was given in two separate credits, the larger amount on 15 July 2010, as stated by Mr Bannon, but with the addition of a smaller amount on 21 September 2010. Mr Bannon's assertion that the amount was processed as a single credit was supported by an annexure to his affidavit drawn from the accounts maintained by the defendant.
The difference is, in my view, unimportant and certainly does not reveal Mr Bannon to be a liar. It is clear that the total amount with which he says Ms Chen's account was credited was in fact credited; the only difference being that that appears to have occurred in two separate credits processed on different dates, rather than as a single amount on 15 July 2010, as stated by Mr Bannon.
No other part of the material Ms Chen has taken me to has gone anywhere close to persuading me that Mr Bannon was anything other than a careful and honest witness. For the reasons stated in respect of ground 1, even if ground 3 is a mixed question of law and fact (which may be doubted), I do not think I should grant leave in respect of that ground.
Ground 2 (relating to the absence of any recording of the critical phone conversation) is arguably a question of law. It is convenient to determine the appeal on that premise, that is, without requiring Ms Chen to establish an entitlement to have leave to argue the point.
In short, Ms Chen contends that the defendant is a "public office" within the meaning of the State Records Act. On that basis she submitted that the defendant is required by law to keep full and accurate records of its activities, which she submitted includes a requirement at law to record telephone conversations of the kind she had with Mr Mason in July 2010.
Mr Bennett acknowledged that the defendant may well fall within the definition of a public office for the purpose of that legislation. He submitted, however, that that cannot inform the resolution of the issues in the present case. In other words, even if the defendant is in breach of some obligation under the Act, which I note has not been established, that that does not impugn the integrity of the magistrate's decision, which turned critically on an assessment of the competing reliability of the evidence of the plaintiff and Mr Mason.
In my view, those submissions are correct and must be accepted. The plaintiff has taken a series of steps to attempt to obtain a record of the conversation which she fervently believes must exist. She informed me that she has three times subpoenaed the defendant for the record and that it has never been provided. The simple fact is that there was before the magistrate no record of the phone call. The defendant's evidence in the proceedings below included evidence to the effect that the defendant does not record such conversations.
Ultimately, however, the issue fell to be determined by the learned magistrate on the strength of the evidence of the two critical witnesses. For the reasons I have already given, I am satisfied that his Honour's determination of the factual issue before him was a careful one which cannot be impugned in this appeal.
For those reasons the plaintiff should, in my view, be refused leave in respect of grounds 1 and 3 and ground 2 must be dismissed.
The orders are:
(1) That leave to appeal on grounds 1 and 3 (as recorded in these reasons) be refused.
(2) That the summons be dismissed.
(Discussion as to costs.)
I have just now given my reasons for dismissing the plaintiff's appeal against a decision of a magistrate in the Local Court. Mr Bennett, who appears for the defendant, has drawn my attention to the fact that a Calderbank offer was made by the defendant on 2 October 2013 offering that, if Ms Chen discontinued the appeal, the defendant would not make any claim for costs.
On the basis of that offer, Mr Bennett seeks a special order for costs, that is, an order that the costs be assessed on the indemnity basis. I have a discretion in respect of that application. It does not automatically follow the event of the refusal of a Calderbank offer that a party must pay his or her successful opponent's costs as assessed on the indemnity basis.
In the present claim, I am satisfied that the plaintiff fervently believes in the force of her position, even though it has been rejected for the reasons I have just given. I would note that the defendant has behaved very fairly, both in the proceedings below and in the appeal before me. However, some aspects of the original treatment of the plaintiff's claim have caused mixed fortunes for her, including the issue of a cheque in the wrong name, which she says she tried to rectify unsuccessfully. There is no evidence before me on the strength of which I can determine that issue one way or the other, and it is important to determine this question now, rather than incurring further cost by adjourning it.
In all the circumstances, I am not persuaded that I should exercise my discretion to award costs on the indemnity basis. The order is that the plaintiff pay the defendant's costs as agreed or assessed on the ordinary basis.
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Amendments
04 March 2014 - Correction to appearance details
Amended paragraphs: Cover sheet
Decision last updated: 04 March 2014
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