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.  The magistrate's restraining order, as disclosed in the material before this Court, was expressed to be "until further order of the court".  As such, it was not "a final order".  This is a matter of some significance, a matter to which I shall return.

5 The order was made upon the application of the Director who, in seeking the order, relied upon the provisions of s.7A of the Act which deems, in certain proved circumstances, a person to be carrying on the business of "trading in motor cars". Insofar as is relevant to this appeal, that section provides as follows:

"(1)A person who buys, sells or exchanges or offers to buy, sell or exchange four or more motor cars in any period of 12 months (whether as principal or agent) is deemed to be a motor car trader carrying on a business of trading in motor cars."

6  Sub-s.(2) of the same section provides that sub-s.(1) does not apply if the person can prove that he did not, in that period, carry on the business of trading in motor cars and did not hold himself out as carrying on the business of trading in motor cars.

7 In determining, for the purposes of s.7A, the number of motor cars bought, sold or exchanged by a person, any purchase, sale or exchange (a) that is an exempt transaction for the purposes of the definition of "trading in motor cars", or (b), that is from, to or with a licensed motor car trader, is not to be counted (see s.7A(3)). Likewise, offers to purchase, sell or exchange motor cars, including invitations to treat or publication of advertisements, are not to be counted for the deeming provisions of s.7A if they would result in "exempt transactions" for the purposes of the definition of "trading in motor cars" or if they are offers made to a licensed motor car trader (see s.7A(4) and (5)).

8 In relying upon the "deeming provisions" of s.7A, the Director put before the Magistrates' Court evidence which entitled that court to find that in a period between March of 1997 and June of 1999, the applicant had advertised for sale to the public in The Age newspaper 25 different cars on some 59 separate occasions. There was also evidence that at all relevant times the appellant was not the holder of a licence to trade in motor cars. The Director also called and relied upon evidence from an employee of Fowles Motor Auctions (a licensed motor car trader) that the appellant, during the relevant period, purchased from it damaged motor cars, some of which were the subject of the advertisements published by the appellant. The appellant himself gave evidence, to the effect of which I will return. It was upon this evidence that the magistrate granted the injunction to which I have referred.

9 On 17 February 2000 the appellant appealed to the Trial Division of the Supreme Court against the magistrate's order pursuant to s.109 of the Magistrates' Court Act 1989. That section provides a right of appeal to a person who is aggrieved by an order of the Magistrates' Court, but the right of appeal is limited to one "on a question of law from a final order of the court." the words "final order" as used in s.109 are the antonym of the words "interlocutory order", as Batt, J. pointed out in Kinex Exploration Pty Ltd v. Tasco Pty Ltd [1995] 2 VR 318 at 320-321.

10 Because, as I have already noted, the order of the Magistrates' Court in this case was not couched in final terms, a question seems to me to arise as to the competence of the appellant's appeal to the Trial Division and, thus, as to the competence of the appeal from that division to this Court. No objection to competence has been taken by the respondent either before the Trial Division or before this Court. The appellant has at all times appeared in person and, no doubt in accordance with the usual practice, the Trial Division has been prepared to extend some licence to the appellant to allow him to ventilate the merits of his complaint. Although I have strong reservations about the competence of this Court to entertain the appeal, it seems to me to be desirable to deal with the substance of the matters argued before this Court because, even if one is to treat the magistrate's order as a "final order" within the meaning of s.109 of the Magistrates' Court Act, it was clearly one which, for reasons that I will explain, the magistrate was entitled to make in the circumstances of this case.

11 An appeal brought pursuant to s.109 is required to be processed in accordance with Part 3 of Order 58 of the Supreme Court (General Civil Procedure) Rules 1996. Such appeals first fall to be dealt with by a master by way of application supported by affidavit (see Rules 58.07 and 58.08). If the appellant shows by his affidavit a prima facie case for relief, the master is obliged to state the questions of law which are shown to be raised by the appeal and to refer the appeal for hearing by a judge of the Trial Division of the Court. If the master is not satisfied that such a prima facie case for relief has been demonstrated, he is bound to refuse the application and dismiss the appeal (see Rule 58.09(1) and (2)).

12 In his application to the master, the appellant challenged the interpretation which the magistrate had given to s.7A of the Act and his determination on the evidence that the appellant was trading in motor cars. In general terms, the appellant's affidavit contended that the evidence produced by the Director to the Magistrates' Court did not establish that the appellant was trading in motor cars. In particular, it was alleged that such evidence demonstrated that the advertisements for sale of the 25 cars relied upon included vehicles which were "advertised under the accounts of D. Silbert and D. Goldberg", in each of whose names a relevant telephone number, namely 9576-9228, was listed at various times. Although the appellant claimed "Silbert" as a friend he was unable to provide any details as to his whereabouts. The magistrate found that such a person did not exist or, if he did, was an "agent" of the appellant.

13 It was further contended that the evidence demonstrated that at the relevant times the appellant owned and conducted a business under the name and style, "Attractive Rent a Car" and that, in pursuit of that business, he purchased damaged cars from Fowles Motor Auctions, which was a licensed motor car trader. There was no evidence, so the appellant alleged, that the cars bought from Fowles were or were not the cars which he advertised for sale. It was thus his contention that cars which he bought from Fowles were "exempt transactions" by virtue of subs.(3) of s.7A of the Act, and were "not to be counted" for the purpose of the deeming provisions. In these circumstances, he contended that the Director had not proved that he was "trading in motor cars" and that the magistrate had erroneously granted the injunction under s.33A of the Act by taking account of "exempt transactions".

14 On 1 March of this year Master Evans dismissed the appeal pursuant to Rule 58.09 of the Rules on the grounds that he was satisfied that there was evidence before the magistrate of offers for sale of motor cars by the appellant to the general public "which attracted the deeming provisions of s.7A(1) of the Act, and that it was open to the magistrate on the evidence to conclude ... that the appellant had not ... proved on the balance of probabilities that he did not carry on the business of trading in motor cars".

15 The appellant then appealed against the master's decision to a single judge of the Trial Division of the Supreme Court pursuant to provisions of Order 77 of the Rules. He alleged that the master had erred in failing to apply the provisions of sub-s.(3) of s.7A of the Act, and in concluding that the transactions relied upon by the Director were not "exempt transactions". His contention was that, because all the cars which he advertised had been purchased from licensed motor car traders, they were "exempted" by virtue of the provisions of the sub-section to which I have referred.

16  Beach, J., before whom the appeal came, dismissed the appeal on 7 March of this year.  His Honour concluded that the appellant's arguments were founded upon the misconception that, because he purchased the motor cars from a licensed motor car trader, the exemption attracted to those transactions was also attracted to any further transaction pursuant to which he offered such cars for sale to the general public.  His Honour accordingly dismissed the appeal.

17 Pursuant to s.17 of the Supreme Court Act, the appellant has now appealed to this Court from the orders made by Beach, J. and has done so on the same grounds as those taken before the master and before his Honour.  Again, he submits that a majority of the 25 transactions relied upon were offers for sale of vehicles which he had purchased as damaged vehicles from Fowles and which he had offered for sale after repairing them.  He asserts that there is nothing illegal in purchasing such damaged cars from a licensed motor car trader, to carry out repairs to them, and to resell them "some time down the track".  He further submitted that the magistrate had granted the injunction contrary to a prior indication he had given that such injunction could not be granted for more than 12 months.  Furthermore, and notwithstanding the limited nature of the grounds of the appeal contained in the Notice of Appeal, the appellant in his written submissions to this Court has sought to argue the following: 

(a)that the injunction granted unfairly discriminates against him contrary to s.117 of the Commonwealth Constitution;

(b)that it offends against his fundamental human right to earn a living contrary to the Human Rights legislation of the Commonwealth;

(c)that the Motor Car Traders Act, in this sense, is inconsistent with Commonwealth legislation and invalid by virtue of s.109 of the Constitution, and

(d)that the magistrate's order discriminates against him contrary to the Equal Opportunity Act of the State of Victoria.

18  The appellant now seeks leave to add these matters as additional grounds to his Notice of Appeal.

19  As a consequence of the constitutional matters so raised, the respondent has served notices pursuant to s.78B of the Judiciary Act (Commonwealth) upon the Attorneys-General of the Commonwealth and the States.  None of those persons has sought leave to intervene upon the hearing of this appeal.

20  In my opinion, there is nothing of substance in any of the grounds of appeal which have been raised by the appellant in the Notice of Appeal.  As this Court has said before, there is something faintly absurd about a system which permits a litigant to appeal on three occasions against a magistrate's order which is largely based upon findings of fact derived from the evidence before that court.  The time and resources which have been devoted to the issues raised in this appeal amply demonstrate the need for the legislature to give urgent attention to the question whether leave should be necessary to appeal to this Court against orders made by a single judge of the Supreme Court upon an appeal brought to the Trial Division pursuant to s.109 and, for that matter, s.92, of the Magistrates' Court Act.  Although it is desirable that the courts should grant liberties to unrepresented litigants, particularly in matters of practice and procedure, it can be amply demonstrated from the history of these proceedings that such liberties have been stretched to breaking point.  It was for that reason that we indicated to the appellant that, before we would be prepared to entertain the so-called "constitutional grounds" of appeal and the grounds additional to those which he sought to argue, he would require this Court's leave to amend his grounds to include them pursuant to Rule 64.06(1) of the Rules of the Court.

21  Having heard such arguments as he wished to address in support of the grant of such leave, this Court rejected his application having regard to the peculiar circumstances of this case; and in particular having regard to the fact that none of those grounds was raised or argued before Beach, J.

22 The substantial point argued by the appellant was the one which he has argued before the magistrate, before Master Evans and before Beach, J.; namely that the proper construction of s.7A of the Act compels the conclusion that because there was no, or no sufficient, evidence before the magistrate upon which to conclude that the vehicles which he offered to the public for sale were not the vehicles which he had purchased from a licensed motor car trader, then there was no evidence upon which the Magistrate's Court could have concluded that the vehicles offered for sale were not "exempt" within the meaning of subs.(3) of s.7A. Because he was the person buying from the licensed trader, and because it was the same vehicle which he was offering for sale, the transaction of offer for sale by him was itself exempt. I agree with his Honour that this argument misapprehends the provisions of s.7A of the Act. Those provisions exempt transactions, not the vehicles which are the subject of them, and the fact that transactions pursuant to which the appellant has habitually purchased vehicles from a licensed motor car trader are themselves "exempt" transactions for the purposes of s.7A does not similarly "exempt" further transactions pursuant to which the appellant habitually on-sells those vehicles or offers them for sale to the public generally. If it were otherwise, the essential purpose of the Act, which is to protect the rights of those who purchase motor cars from traders, would be substantially defeated. I therefore do not accept the appellant's primary ground of appeal that his Honour "erred in law by neglecting, omitting or refusing to accept s.7A(3)(a) and (b) and s.3(3)(a)(i) of the Act as compelling the conclusion that the transactions in which the appellant had engaged were, themselves, exempt transactions". It necessarily follows that I do not accept either the other expressed ground of appeal relied upon; namely that his Honour erred in law in concluding that the appellant had not satisfied the onus which s.7A(2) casts upon him of proving that he did not, in the period relied upon, carry on the business of trading in motor cars. Once it is concluded that the transactions of offering the vehicles for sale to the public were not "exempt", there was abundant evidence upon which it was open to the magistrate to conclude that the appellant had not satisfied the onus of proof that he was not "trading".

23 In conclusion I should say that this Court has brought to the appellant's attention the provisions of sub-s.(6) of s.7A. He cannot assume that selling even less than four cars per year will render him immune from prosecution under the Act or from proceedings for breach of the injunction which is on foot.

24  For all these reasons I would dismiss the appeal with costs, including the costs of the "stay application" made to this Court on 31 March of this year.  It necessarily follows that the costs orders which were made by the Magistrates' Court and by Beach, J., which orders were stayed by the order of this Court on 31 March, will take effect according to their tenor.

BROOKING, J.A.: 

25  I agree.

CHARLES, J.A.: 

26  I also agree.

APPELLANT: 

27  Could I ask for a stay of one month, Your Honour?

WINNEKE, P.: 

28  A stay of what?

APPELLANT:

29  Of this order.

WINNEKE, P.:

30  All we have done is dismiss the appeal.  All that means is that the order of the Magistrate continues. 

(Discussion ensued.)

31  We are not prepared to grant you a stay, Mr Goldberg.

(Discussion ensued re costs.)

32  We will order that the costs of the appeal to be paid by the appellant to the respondent be on the basis of solicitor and client.

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