Foster v Dawson
[2005] WASCA 169
•1 SEPTEMBER 2005
FOSTER -v- DAWSON & ANOR [2005] WASCA 169
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 169 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:46/2003 | 25 JULY 2005 | |
| Coram: | OWEN JA WHEELER JA ROBERTS-SMITH JA | 1/09/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JEFFREY ELLIS FOSTER FRANCIS ERROL DAWSON VINCENT ROWLAND ALBONETTI |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | Nil Browne v Dunn (1893) 6 R 67 Central Railway Company of Venezuela v Kisch (1867) LR 2 HL 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FOSTER -v- DAWSON & ANOR [2005] WASCA 169 CORAM : OWEN JA
- WHEELER JA
ROBERTS-SMITH JA
- Appellant
AND
FRANCIS ERROL DAWSON
First Respondent
VINCENT ROWLAND ALBONETTI
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FRENCH DCJ
Citation : FOSTER -v- DAWSON & ANOR [2003] WADC 222
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M J Bateman
First Respondent : In person
Second Respondent : No appearance
Solicitors:
Appellant : Batemans
First Respondent : In person
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Browne v Dunn (1893) 6 R 67
Central Railway Company of Venezuela v Kisch (1867) LR 2 HL 99
(Page 3)
1 OWEN JA: I have read the reasons of the Hon Justice Wheeler. I agree with her Honour's reasons and with the conclusion that the appeal should be dismissed. I have nothing further to add.
2 WHEELER JA: This is an appeal from a decision of the District Court Judge who, on 12 February 2003, dismissed an appeal from the decision of the Magistrate who, on 20 June 2002, dismissed the appellant's claim for damages arising from the tort of deceit. Her Worship found that the tort of deceit had been proven on the balance of probabilities; that is, that a wilfully false statement or representation was made to the appellant with the intention that it should be acted upon, and that it was acted upon by the appellant to his detriment. However, her Worship also found that the only detriment sustained by the appellant was incurred in loaning to the first respondent the sum of $4000, which sum was not in issue in the proceedings before her, having been apparently recovered by the appellant in some separate proceeding. The only loss claimed in the proceedings before the Magistrate, then, was a loss which her Worship found did not stem from the representation which was made. In order to understand that finding, it is necessary to summarise the appellant's claim.
3 At the relevant time, the appellant was a tradesman, trading as Foster's Total Property Maintenance, which business involved building work of some kind. He alleged that the first respondent discussed with him a business project in April of 1996. The business, broadly, was a business in which it was said that both respondents were engaged, the objective of which was to introduce Australian companies to carry out business enterprises in the Republic of Myanmar (referred to by most of the witnesses during the course of the trial by its former name of Burma). The respondents' business was to charge a consultancy fee of a percentage of net turnover of the business of companies introduced by them to operate in Burma. It was suggested to the appellant that he should pay for the travel expenses of a business trip envisaged to take place in mid-April or thereabouts. That is where the sum of $4000 comes from. By way of background, both the appellant and the first respondent were expatriate Burmese. It was alleged that in elaboration of this representation, various other representations were made to the appellant. They were about meetings which had been arranged to take place in Burma between the Burmese Minister for Economic Development and National Planning, the respondents' business, and a delegation of Australian companies; that the first respondent had a particular relationship with the Minister, that a French telecommunications company was involved in the project and would meet the respondents in Singapore; and there were certain other representations as to the content of the proposed meetings.
(Page 4)
4 The appellant asserted that, relying upon those representations, he rescinded a contract to do work upon the premises of Mr and Mrs Kinsella, in anticipation of entering into that business partnership. As his case was run at trial, it appeared that he said that he had rescinded that contract in order to travel to Burma with the respondents, it being part of their agreement that he should be present at, and participate in, meetings, since he, like the first respondent, was a fluent speaker of Burmese. His evidence at trial was that the Kinsella contract involved bathroom renovations and extensions, and that he had already commenced about a day's work at those premises, removing the tiles from the bathroom, when he told the Kinsellas that he could not complete the job because he had a good opportunity in Burma. Mrs Kinsella's evidence was that the relevant council building licence was not issued until 23 May and that, although the appellant had carried out some work stripping the tiles in the bathroom, the bulk of the work, whatever it was, apparently could not have been carried out until late May or June.
5 As I have noted, so far as the question of deceit was concerned, her Worship found that there had been a fraudulent inducement. The matter which she found to be fraudulent appears to have been in relation to the representation that a meeting had been arranged with the relevant Minister in Burma and that the first respondent was related to the Minister. She also found that the representation in relation to the involvement of the French telecommunications company had been made and was false.
6 However, it was the respondents' case at trial that the appellant did not travel to Burma because of the representation which had been made and in order to participate in business meetings, but that he did so in order to have a holiday and to find a marriage partner. He went at the time at which he went because, in effect, he wanted someone to travel with.
7 Her Worship made certain credibility findings. They were adverse to both the appellant and the first respondent, she not find either man to be entirely credible and reliable. She did, however, find the second respondent to be generally credible and reliable. In relation to the evidence that the appellant was going to Burma for the purpose of having a holiday and finding a wife, she had evidence from a number of people who were not parties to the action, although some were related to the parties. She seems to have accepted the evidence of each witness who gave evidence to the effect that the appellant had said that he was going to Burma for those purposes. In summary, that evidence was as follows.
(Page 4)
8 Mrs Marie Dawson, the mother of the first respondent, gave evidence that some time prior to the trip which the men made to Burma, the appellant had been telephoning the first respondent's home because he had heard that the first respondent was going to Burma, and that he said that he wanted to go for a holiday; the inference to be drawn from what she said about her telephone conversations with the appellant and about a conversation that she overheard between the appellant and the first respondent, would be that he simply wanted someone to travel with when he went for his holiday. The wife of the second respondent, whom her Worship accepted as a credible witness, gave evidence to the effect that the appellant had said that he wished to go to Burma for a holiday and to find a wife. Mrs Smith, a neighbour of the second respondent, gave evidence of being present at a social gathering at which there was some discussion of the appellant's desire to go to Burma to find a wife; she recalled the conversation particularly because she remembered some joking reference to a "take-away". Mr Adams, who was apparently an old friend or an acquaintance of the first respondent, gave evidence that he had been present at a discussion in April 1996 between the appellant and the first respondent in which the appellant said that he was thinking of going to Burma for a holiday. He also said that he was present at the first respondent's home when the appellant came over and there was some conversation in which the first respondent's cousin was mentioned. It was not in dispute that, while in Burma, the appellant had, in fact, met the first respondent's cousin, Juliana, and that he had subsequently married her. The appellant points out that Mr Adams' evidence was, in some respects, inconsistent with a statutory declaration which he had made; however, it was plainly open to her Worship to accept a part of his evidence, and she accepted that part which related to the conversation about the appellant wanting to have a holiday.
9 The grounds of appeal are prolix, but seem to boil down to two propositions. First, it is submitted that her Worship's finding that the appellant suffered the loss because he went to Burma for a holiday and to find a wife was "inconsistent with established facts and so improbable no reasonable person would accept it"; and, in the alternative, it is submitted that even if her Worship was correct in finding that the appellant did wish to go to Burma for the purpose of having a holiday and finding a wife, she should have found that the false representation caused his loss in the sense that it was that representation which induced him to go to Burma at that time, rather than at some other time, thereby causing the loss of the Kinsella contract.
10 The problem with the ground of appeal which suggests that it was not open to her Worship to find that the appellant went to Burma in order to have a holiday and find a wife, is that there was a substantial body of evidence to the effect that that was the appellant's declared intention. It was for her Worship to assess the credibility of the witnesses who gave that evidence, and she accepted their evidence. No doubt, her conclusion was fortified by the fact that the appellant did find a wife while in Burma on that trip. There are no "established facts" with which her Worship's conclusion was inconsistent. The appellant points to a body of other evidence which it is suggested either weakens the force of the evidence which her Worship accepted, or which could have led to a contrary conclusion; however, it was for her Worship to weigh up all the evidence, and she did so.
11 The proposition that it was glaringly improbable that the appellant would travel to Burma for such a purpose, rests upon the assumption that, since the appellant had a considerable quantity of work available to him in Australia, from which he was deriving an income, it would have been foolish in the extreme for him simply to leave that work at short notice in order to travel to Burma for those purposes. However, the competing proposition, which the appellant urged us to accept, was that, after only a couple of conversations, principally with the first respondent, the appellant was so convinced of the success of the somewhat nebulous business proposition put to him that he was prepared to throw up that work which was available to him in order to participate in it. It was conceded by the appellant's counsel, in my view rightly, that that could be considered a somewhat foolish course of action. Not having seen and heard the witnesses, as her Worship did, this Court is hardly in a position to determine that one or other of the courses suggested is so much more foolish than the other, that it can be concluded that no reasonable person could conceivably have followed it. Her Worship had the advantage of seeing the appellant, and she formed the view, notwithstanding that it would have been a somewhat impulsive course of action, that he did decide to leave his work in order to travel to Burma for a holiday and with a view to finding a wife.
12 The problem with the appellant's alternative submission, to the effect that the representations made affected the timing of his trip to Burma, even if the trip was for the purpose of having a holiday and finding a wife, is that it is wholly inconsistent with the case run by the appellant at trial. His evidence to her Worship at trial in relation to the proposition that he wanted to have a holiday and to find a wife was: "[It's] absolutely false. I did not wish to go to Burma to have a holiday because I simply could not.
I was committed to a loan agreement to buy a motor vehicle at the time and was also doing work on the Kinsella contract, and I certainly never had any intention to go looking for a wife" (AB 89). When what was in issue was the appellant's state of mind, it would not, in my view, have been open to her Worship to attribute to him a state of mind which was inconsistent with both his own evidence as to his state of mind and the evidence of others as to what he declared his state of mind to be. That would be pure speculation, and her Worship can hardly be criticised for failing to make a finding which would have had no evidentiary foundation.
13 There is also a ground of appeal which deals with the finding of the learned District Court Judge. Her Honour noted in her reasons that the respondents had conceded that "there does appear to be a gap in the Magistrate's findings". It is not clear to me what that gap may have been. However, her Honour was satisfied that there was evidence upon which the Magistrate could find that the appellant went to Burma for personal reasons, rather than to further the interests of the partnership business. That is consistent with the views which I have expressed in relation to the evidence and her Worship's findings.
14 Her Honour went on to say that there was a "more fundamental difficulty" with the appellant's claim. That difficulty, as her Honour apprehended it, was that it was clear that it was not intended by the respondents that, as a result of their representations, the appellant would travel with them to Burma and that they in fact discouraged him from going. This ground of appeal attacks the finding of her Honour that the respondents did not intend the appellant to travel with them and discouraged him from doing so. It is not, in my view, necessary to deal with this ground, since the appeal must be dismissed, in any event, on the basis that there is no reason to interfere with the findings as to causation made by her Worship.
15 ROBERTS-SMITH JA: I agree with the reasons for judgment prepared by Wheeler JA and have nothing to add.
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