Grant Plush and Jessie Plush v Grenfell Wholesalers (Reg'd) No. SCGRG 2724 of 1991 Judgment No. 3621 Number of Pages 6 Appeal and New Trial

[1992] SASC 3621

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE J

CWDS
Appeal and new trial - appeal - general principles interference with judge's findings of fact - Local Court Appeal - Goods and Services - Dispute over payment - Self serving document - Appeal allowed - Judgment in favour of the respondent set aside - Judgment entered for the appellants.

HRNG ADELAIDE, 18, 27 February 1992 #DATE 22:9:1992
Counsel for appellants:     Mr R Mcrae
Solicitors for appellants:    Robert Mcrae
Counsel for respondent:     Mr P Scragg
Solicitors for respondent:    Peter Scragg

ORDER
Appeal allowed.

JUDGE1 LEGOE J This is an appeal from the Local Court of Adelaide against a judgment for the respondent in the sum of $2,086.00. The respondent claimed this amount "for goods purchased from the plaintiff by the defendant, particulars of which the defendant has." The ordinary summons was issued on the 21st December 1990. The goods were fruit and vegetables delivered in October and December of 1986 and January 1987. 2. The hearing before Mr H. Williams, S.M. commenced on Tuesday 22nd October, 1991, when a Mr Tony Russo, fruit and vegetable merchant and one of the proprietors of the respondent "Grenfell Wholesalers", gave evidence. The degree of proof disclosed by the transcript is far from satisfactory. The appellants were not represented by counsel. Counsel appeared for the respondent and in a series of leading questions (apparently unrestrained by the learned Special Magistrate) counsel asked Mr Russo whether he (as Grenfell Wholesalers or in some other capacity not disclosed in the transcript) "had dealings with a business known as Whyalla Wholesalers." When asked who were the proprietors of that business Mr Russo answered "At the time I presume it is Jessie and John." When asked for surnames he answered "Jessie Plush and John Nikouladis." 3. Counsel for the respondent immediately set about proving the claim by putting a document in front of Mr Russo. By a series of leading questions a confused story then emerged that:
    - 1. The entries in the ledger are entries in respect of an
    account of Whyalla Wholesalers;
    2. The entries include payments made - credits given;
    3. Also invoices in relation to goods received;
    4. Ordering was done by telephone;
    5. Goods were delivered by truck to Whyalla;
    6. As far as Mr Russo understood as at 5th April 1987 the
    balance outstanding was $2,846.00.
    7. There was "some query in respect of some of the goods
    ordered ... Apparently that was another company they had been
    running."
    8. There was a transfer of goods which were wrongly
    assigned to this account - for $760.00.
    9. "Is it correct to say as at 5th April the true amount was
    $2086? Answer - That's correct." Mr Russo said no further
    payments had been received.
    10. The ledger referred to by Mr Russo in this confused
    statement of evidence extracted by a series of confused leading
    questions was tendered as Exhibit P.1. A study of the ledger
    disclosed that payments were made on the individual amounts,
    usually in cash. Nowhere on that ledger was the amount (if any)
    still owing disclosed. The document is headed "WHYALLA
    WHOLESALERS". Nowhere does the name Jessie Plush nor John Plush
    nor John Nikouladis appear. Anyway, it is a self-serving
    document.
    11. Mr Russo went on to say he prepared "an account
    statement reconciliation." That was tendered as Exhibit P2.
    This is simply headed "WHYALLA". That document sets out a list
    of dates alongside 'Invoice No.' and 'Debit'. On that document
    the alleged balance owing on 8th January 1987 was $4,079.00 and
    after 'Last Payment 24th June 1987' of $1,700.00 plus a credit
    of $293.00 the balance owing was allegedly $2,086.00. When this
    'account statement reconciliation' is compared to the ledger
    Exhibit P1, it is impossible to reconcile all the entries in the
    ledger.
    12. Mr Russo also produced some 8 dockets, which became
    Exhibit P3. These dockets are all dated between the first on
    29th October 1986 and the last on 8th January 1987. The dockets
    total $4,079.00, which is consistent with Exhibit P2 - the
    account statement reconciliation, but again cannot be reconciled
    with Exhibit P1, the ledger. The dockets are stated to be to
    "Whyalla Wholesalers", "Whyalla" and are dated 22nd December
    1986 "Pt Augusta." None are addressed to "Plush or Jessie or
    John Plush or Nikouladis."
    13. Jessie Plush appeared in person at the hearing and her
    opening questions in cross examination were:-
    "Q. When we were dealing with you in the East End Market in
    fact in 1986, John, my partner, would come in and pay you - is
    that correct?
    A. Yes.
    Q. Once a week, sometimes he would pay cash and sometimes by
    cheque, is that right?
    A. That's correct.
    Q. You never ever sent us any statements as Whyalla
    Wholesalers and that's how we used to pay as we went?
    A. That's right."
    14. Jessie Plush asked a few more questions about what
    happened when the business of Whyalla Wholesalers was sold on
    10th January 1987. Mr Russo agreed that he was paid by the
    appellants the sum of $1,700.00 on 23rd June 1987. A photostat
    of the docket for $1,700 was sent by Mr Russo to the appellants
    about 3 years later, not long before the ordinary summons was
    issued. That docket states:- "23/6/87. No: 900 Bought from:
    Grenfell Street W/S $1700.00. Account of Whyalla Wholesalers
    pre 10/1/87 PAID IN FULL."
    The case before the Local Court proceeded on the basis that
    the respondent claimed an account owing on balance. At the
    hearing on 22nd October 1991 Mr Russo was asked some further
    questions by Jessie Plush about other payments that had been
    made, in particular about a cheque for $3,694.00 drawn on 23rd
    February 1987. When asked had he received that cheque (which
    showed by the account number on the back it had been banked) Mr
    Russo said:- "I wouldn't know, I would have to look it up."
    Another cheque for $997.50 drawn on 14th January 1987 and
    another for $1,270.00 drawn on 17th November 1986 were drawn to
    Mr Russo's attention, who said in answer:- "I need to relate
    them to these invoice numbers here. It's all fine for you to
    say you paid it but does it relate to the invoice numbers."
    15. Counsel for the respondent then requested an adjournment
    which was granted until the 31st of October 1991. When the
    hearing resumed on that date, Mr Russo produced some further
    documents which counsel for the respondent who appeared on both
    days of the Local Court hearing agreed were irrelevant to the
    issues before the Magistrate and on this appeal. They were
    Exhibits P3a, P4 and P5. The transcript then sets out a very
    confused dialogue between the Magistrate and counsel for the
    respondent which could not be taken as evidence.
    16. Cross examination of Mr Russo resumed on that second day
    of the hearing. Jessie Plush pointed out further uncertainties
    in the documents before the Court. Mr Russo suggested the
    respondents' secretary "who handles our accounts" might be
    called. He added:- "I'm not quite aware how the actual ledger
    works, I was only the salesman. I'm not actually the ...".
    When Jessie Plush pointed to some references to credits in the
    ledger (Exhibit P1) Mr Russo said:- "...you have tried to be
    confusing ..." Mrs Plush commented:- "I'm not the confused
    one, obviously your book work isn't right." Mr Russo then asked
    to call the secretary.
    17. Pauline Elizabeth Robinson, clerk with Grenfell
    Wholesalers then gave evidence. She gave evidence in effect
    identifying the ledger and some of the dockets. However, her
    evidence did not, nor could she state, what payments had been
    made by the appellants in cash. There was a further confused
    line of questions relating to the payment of $1,700.00 on 23rd
    of June 1987 and whether that was "payment in full" as stated on
    Exhibit D1 produced at the earlier hearing by Mrs Plush.
    The plain fact is that Mrs Robinson's evidence was restricted
    to the documents and her bookkeeping, which clearly did not
    establish all of the payments which actually had been made by
    the appellants during the relevant period. She did not even say
    that she had written up all of the ledger (Exhibit P1) and
    claimed to have no knowledge of the reconciliation account
    (Exhibit P2)..
    18. I should mention that another disturbing feature of the
    trial was that the transcript discloses that the appellant
    Jessie Plush was given no assistance by the Magistrate, and even
    more disturbing, that counsel for the respondent interjected
    several times, telling the appellant what to do eg:- "Mr Scragg:
    It's not for you to make statements ... Yes you have to ask
    questions of the witness ... You can argue about that at the
    end of the case ..." In my judgment it is for the presiding
    judicial officer to direct the unrepresented party and it is
    improper for counsel for the represented party to do so.
    19. The appellants' defence was summed up by Jessie Plush,
    when she gave evidence:-
    "Well, my story is, obviously their accounts aren't
    kept properly from what I gather now, after receiving,
    especially this morning receiving this new ledger, which I was
    never aware, also by the fact on the ledger of P2, they've got
    accounts for Crystal Brook and Port Augusta, this is where the
    confusion has come in, because, to my knowledge there was only
    ever one account which was Port Augusta, Crystal Brook, Whyalla
    Wholesalers all on the same ledger and as you see by the ledger,
    there are dockets been entered on to that ledger for Crystal
    Brook, Whyalla and Port Augusta. This new one which I was never
    aware of, well I can't really comment on that because, what can
    I say? The dockets that they say are owing I can't see where
    they add up to that total and also the statement P2, the balance
    of $2,086 taken off that amount left owing, before that we paid
    $1,700 and they say that we owe $4,079. They've not said what
    the $1,700 has come off, what dockets. And I think it's just
    been total confusion and I don't think that their book work is
    really up so scratch and on top of that to wait nearly five
    years before anything's been done about it, sorry four years,
    and now we are nearly five years, I think it's just been very
    difficult to go back and collate all of this, and that's really
    all I have to say."
    20. The learned Special Magistrate delivered ex tempore
    reasons. He did so before the tapes of the evidence had been
    transcribed. He observed that the claim was at the lower end of
    the limited jurisdiction - a little above the small claims
    jurisdiction. He then gave the following reasons:-
    "It might be a little discursive to say so, I couldn't
    help feeling that some of the things that Mrs Plush mentioned
    brought back old memories of my telling various people in the
    market many years ago that they should take pains to ensure that
    their book work was all done correctly. I don't know whether
    things have improved at all over the years, but it was certainly
    the case many years ago that many things were done by some sort
    of vague word of mouth arrangement without getting a written
    order or a written signature for all goods received, but I think
    I must be brief, I think that Exhibit P2 does tend to summarise
    the situation. I have checked the photostat invoice against the
    Exhibit P1 and I have found that each of the items set out in P2
    are, in fact, also contained in Exhibit P1 as debits, so it does
    seem that the claim which is summarised by Exhibit P2 is based
    upon details taken from the ledger, so it does seem very likely
    that those are details which have been recorded as outstanding
    for some considerable time, which tends to underline the
    probability that they are, in fact, outstanding. So all in all
    I think I can only say it does seem more probable than not that
    the various debits that have been comprised in Exhibit P2 are
    debits that remain outstanding, there's certainly no
    satisfactory evidence to establish that they've ever been paid
    in any shape or form and so I think that there must be judgment
    for the plaintiff for the amount claimed, being the total of
    those various debits after the credit of $293, which is also
    shown in Exhibit P2 and, of course, the defendants must pay the
    plaintiff's costs of action and interest as may be agreed or
    taxed. I don't think I can go into any more detail, I haven't
    overlooked various other things that have been shown me or
    spoken about, but I think it's simplest simply to summarise
    reasons for decisions in the way I have already done. I have to
    leave it at that I think." CONCLUSION
4. I note that the learned Special Magistrate made no finding as to credibility. Nor has he apparently directed his mind to the onus of proof. The main issue at the hearing was whether the respondent proved (a) the sale of goods (fruit and vegetables), (b) to the appellants (John and Jessie PLUSH the named defendants in the summonses), and (c) whether the appellants had not paid for some or any of those goods which had been sold and delivered. The respondent's case relied almost entirely upon the documents Exhibits P1, P2 and P3. Those documents were inconsistent particularly where Exhibit P1 shows various credits and cash payments which cannot on the face of the document be properly matched up or checked with Exhibit P2 and Exhibit P3. Clearly payments were made by the appellants both in cash and by cheque. Mr Russo admitted in cross-examination that John Plush would come in and pay the respondent when the appellants were dealing in 1986 (see page 3 of the evidence heard on 22nd October 1991). Further, Mr Russo admitted he never sent any statements to the appellants as "Whyalla Wholesalers" and "that's how we (the appellants) used to pay as we want." 5. In my judgment the self-serving documents (Exhibit P1, P2 and P3) were insufficient to establish the alleged non payment of $2086.00. Mr Russo said in cross-examination "I can't understand the ledger ..." (page 7 of Mr Russo's cross-examination on 31st October). Mrs Robinson's evidence was confined to the bookkeeping that she did for the respondent. She had no knowledge of any payments made by the appellants directly in cash to Mr Russo except what Mr Russo told her about and she later recorded in the ledger. She had no direct involvement in the account reconciliation (Exhibit P2). Nor could she explain satisfactorily the invoices and deliveries that had been made to the appellants in relation to the cheques which the respondent recorded had been received eg. $1,396.00 on 7th January 1987, $997.50 on 14th January 1987, $170.00 on 17th November 1986 (but not recorded in Exhibit P1 until 25th February 1987) and other credits noted on the ledger Exhibit P1 but not mentioned in the evidence. 6. For these reasons I am of the opinion that the appellants have established grounds 2, 3, 4 and 6 of the Grounds of Appeal filed in this Court on 26th February 1992 (document No. 6). Those grounds are sufficient to enable me to allow the appeal and set aside the Magistrate's order giving judgment in favour of the respondent for the sum of $2,086.00. In these circumstances it is not necessary for me to decide the appeal on ground 7 and the affidavit of Jessie Plush sworn on the 25th February 1992, including the exhibits to her affidavit. Without considering the arguments put to me that those exhibits were not "fresh" evidence within the principles laid down by the authorities, I am of the opinion that on the evidence and particularly the documents produced and relied upon by the respondent, the claim for balance of monies owing for goods sold and delivered failed. The respondent admitted the appellants paid for all goods delivered to them in 1986 upon delivery. The exhibits P1, P2 and P3 cannot be reconciled. The learned Special Magistrate must have been in error when he concluded that - "...the various debits that have been comprised in Exhibit P2 are debits that remain outstanding, there's certainly no satisfactory evidence to establish that they've ever been paid in any shape or form ..." 7. He must have overlooked the respondent's admission in cross-examination that the appellants paid for goods as they were delivered in 1986. Furthermore, there are a number of credits shown in the ledger which make Exhibit P2 inconsistent with P1. The respondent failed to establish on the balance of probabilities on the whole of the evidence that the sum of $2,086.00 or any other sum was still unpaid and outstanding at any relevant time. The self-serving documents did not establish this amount was owing nor any other amount. 8. For these reasons the appeal is allowed, the judgment in favour of the respondent is set aside, and judgment is entered for the appellants - the defendants at the trial. I shall hear the parties on costs.