Goldberg v Maclennan - [2000] VSCA 129

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 4344 of 2000

DAVID GOLDBERG

Appellant/Defendant

v

SUSAN ALEXANDER MACLENNAN

Respondent/Plaintiff
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JUDGES:

WINNEKE, P., BROOKING and CHARLES, JJ.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

25 July 2000

DATE OF JUDGMENT:

25 July 200

MEDIUM NEUTRAL CITATION:

[2000] VSCA 129

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Practice and procedure – Appeal arising out of order made by Magistrates' Court – Whether order a final order within meaning of s.109 of Magistrates' Court Act 1989 – Whether appellant trading in motor cars contrary to s.7A of Motor Car Traders Act 1986.
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APPEARANCES:
Counsel Solicitors

For the Appellant/Defendant
In Person

For the Respondent/Plaintiff Mr G. Maguire Stephen Devlin,
Solicitor to Consumer &
Business Affairs Victoria
WINNEKE, P.:
1 In 1986 the government introduced into the statute law of this State, in the form of the Motor Car Traders Act 1986, provisions designed to regulate the sale of motor cars. These provisions have, as one of their major objectives, the protection of members of the public who buy motor cars from those who engage in the business of trading in motor cars. Section 3 of the Act defines a "motor car trader" relevantly as:

"a person who ... carries on the business ... of trading in motor cars or holds out in any way as carrying on the business of trading in motor cars."

The same section defines "trading in motor cars", so far as relevant, as meaning:
"... Selling ... motor cars, whether as principal or agent, and offering to ... sell motor cars, whether as principal or agent, and includes an advertisement or invitation to treat, but does not include an exempt transaction under subs.(3) [of s.3]".

2 Sub-s.(3) of s.3 exempts from the definition of "trading in motor cars" certain transactions. Such "exempt transactions" relevantly include:

"(a)buying, selling or exchanging motor cars or offering to buy, sell or exchange motor cars by any person from to or with:

(i) licensed motor car traders".

3 The Act, by s.7, forbids any person from trading in motor cars "unless that person is the holder of a motor car trader's licence". Division 2 of Part 2 of the Act prescribes a scheme pursuant to which persons who are or wish to carry on the business of a motor car trader can apply to the relevant licensing authority for a licence. If a person carries on the business of trading in motor cars without being so licensed, he is liable to a penalty prescribed by the Act and, in addition, the Director of Fair Trading and Business Affairs may apply to the Magistrates' Court under s.33A of the Act for an order requiring that person to stop trading in motor cars.

4 This appeal arises out of an order made by the Magistrates' Court at Melbourne on 3 February 2000 restraining the appellant, David Goldberg, pursuant to s.33A of the Act, from trading in motor cars without being the holder of a licence issued pursuant to the Act.…

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.

Continue reading Goldberg v Maclennan

Details

AGLC: Goldberg v Maclennan [2000] VSCA 129
Case: [2000] VSCA 129
Decision Date: 25 July 2000

CaseChat Overview and Summary

Goldberg v Maclennan involved the appellant challenging an order made by the Magistrates' Court, which found him in breach of the Motor Car Traders Act 1986 by trading in motor cars without a licence. The dispute centred on whether the Magistrates' Court's order was a final order under section 109 of the Magistrates' Court Act 1989 and whether the appellant was indeed trading in motor cars contrary to section 7A of the Motor Car Traders Act 1986.

The legal issues before the court included determining the finality of the Magistrates' Court order and interpreting the statutory requirement of holding a licence to trade in motor cars. The appellant argued that the Magistrates' Court order was not a final order and that he was not trading in motor cars as defined by the statute. The court was required to assess the statutory definitions and the procedural steps leading to the Magistrates' Court's decision.

The court held that the Magistrates' Court order was a final order as it concluded the matter before the court and was appealable under section 109. The court also found that the appellant's activities met the statutory definition of trading in motor cars, as evidenced by the transactions and the manner in which they were conducted. The appellant's argument that he was merely facilitating private sales did not align with the statutory requirements, and the court determined that he was, in fact, engaging in the prohibited activity. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and the order of the Magistrates' Court was upheld as a final order. The appellant was found to be in breach of the Motor Car Traders Act 1986, and the licence requirement for trading in motor cars was affirmed.

Orders