Harradine v Kessner Trailers Pty Ltd - [2012] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HARRADINE v KESSNER TRAILERS PTY LTD
[2012] SADC 143
Reasons for Decision of His Honour Judge Clayton
2 November 2012
MAGISTRATES - APPEAL AND REVIEW
Review of decision of magistrate dismissing minor civil claim. Plaintiff purchased, from the defendant, springs for a trailer which were unsuitable and broke. He alleged breach of implied condition as to fitness for purpose and breach of duty. Magistrate found that the plaintiff’s evidence did not satisfy onus of proof.
Decision of magistrate affirmed.
Magistrates Court Act 1991 s 38(1), s 38(7); Sale Of Goods Act 1895 s 14(1); Trade Practices Act 1974 (Cth) s 71(2); Laws of Australia para 8.4.52, referred to.
Ashford Shire Council v Dependable Motors Pty Ltd (1960) 60 SR (NSW) 27; Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441; Gibbett v Forward Products Pty Ltd [2001] FCA 290; Samuels v Maple (1992) 165 LSJS 114; Comcare v Maganga [2008] FCA 285; Hamilton-Smith v George [2003] SADC 157; Harradine v District Court of South Australia [2012] SASC 96, considered.

HARRADINE v KESSNER TRAILERS PTY LTD
[2012] SADC 143

This is a review of a magistrate's decision in a minor civil claim for $3,056.88 arising out of the sale by the defendant to the plaintiff of a pair of springs for a trailer.
In 2008 the plaintiff was a schoolteacher at Pipalyatjara in the north‑western corner of the South Australia. In connection with his hobby of collecting scrap metal he used a large four wheeled car trailer which was manufactured by the defendant in 2006. The trailer had two axles and four wheels suspended on four springs. The plaintiff purchased the trailer from an earlier owner in 2008.
Prior to 2008 the defendant had used two different types of springs on the trailers which it manufactured. One type was known as a "rocker” spring and the other was known as a "rocker/roller" spring. At each end the "rocker" springs had a 5/8” bush with an eye hole through which a bolt passed to attach the spring to the trailer. The "rocker/roller" springs had a similar 5/8” bush at one end but there was an oval space about 5/8” wide by about four inches in length at the other end. That oval space permitted the bush which attached the spring to the trailer at that end to move backwards and forwards along the spring as it compressed and decompressed absorbing bumps. In the case of the "rocker" spring a bracket or “rocker” to which the bush was attached swivelled up and down to accommodate changes in the length of the spring. The difference in appearance between the two types of springs is obvious, even to the untrained eye.
The plaintiff’s trailer was fitted with four "rocker/roller" springs.
Sometime prior to 11 September 2008 Mr Harradine experienced problems with the rear springs of the trailer. On 11 September he telephoned the defendant to purchase a replacement spring. Before contacting the defendant Mr Harradine had spoken to and received advice from another trailer manufacturer. Mr Kessner told Mr Harradine that he could only purchase a pair of springs and Mr Harradine agreed to do that for the sum of $336.
There is a dispute as to the content of that telephone call which is central to the plaintiff's claim. I will return to this topic later.
On about 19 September a pair of "rocker" springs was delivered to the plaintiff at Pipalyatjara and the plaintiff fitted them to the trailer. The plaintiff made a video recording of himself measuring a spring on the trailer and later fitting one of the new springs.[1]
[1] Exhibit P7A.
On 26 September 2008, having fitted the new springs to the rear axle of his trailer, Mr Harradine left Pipalyatjara for Adelaide in his Nissan patrol four‑wheel-drive towing the trailer which was laden with scrap metal.
The first 500 kilometres or so of the road from Pipalyatjara is unsealed and becomes severely corrugated. After Mr Harradine had travelled approximately 350 km on the unsealed road he sensed a problem and stopped. Upon inspection he observed that the rear springs and rear axle assembly of the trailer had been damaged. He also observed that oil was escaping from cracks in the differential housing of his motor vehicle. The plaintiff made a further video recording of those observations.[2]
[2] Exhibit P7A.
Mr Harradine managed to get the damaged vehicle and trailer to Coober Pedy where he left them and then travelled to Adelaide by bus. He returned to Coober Pedy later in another vehicle to collect the Nissan and the trailer.
It is common ground that the trailer should have been fitted with "rocker/roller" springs and that the rear springs that Mr Harradine fitted broke because they were "rocker" springs.
In due course the trailer was brought to Adelaide and repaired. The plaintiff claims the cost of repairing the damage to the trailer and the Nissan Patrol. The plaintiff complains that the springs supplied by the defendant were not the correct springs.[3]
[3] Particulars of Claim paras 15 and 16.
While the claim is a minor civil action comprehensive pleadings which describe the respective cases of each party have been filed.
The Basis of the Plaintiff’s Claim
The claim made in the Statement of Claim can be summarised as follows:
§ That the defendant knew or ought to have known that if springs of the type that it supplied to the plaintiff, were fitted to a trailer with a roller/rocker set up then they would likely break (para 17).
§ The defendant negligently supplied the springs to the plaintiff (para 19(a)).
§ The defendant breached an implied term that the springs were reasonably fit for the purpose and it was well aware of that purpose (para19(b)).
§ The defendant breached an implied term to use reasonable care and skill (para 19(c)).
§ At all relevant times the plaintiff relied upon the defendant's expertise generally as a trailer manufacturer, and specifically, as the manufacturer of the trailer (para 20).
The Defence
The defendant alleges in its defence:
§ The way the plaintiff described the trailer’s suspension to Mr Kessner, coupled with the measurements that he gave, described a rocker suspension spring (Defence para 2).
§ Mr Kessner advised the plaintiff that he would order and send rocker suspension springs and that if they were not the correct springs that they could be returned and the defendant would supply the other rocker/roller suspension springs (para 3).
§ Mr Kessner advised the plaintiff not to fit the springs unless he was certain that they were the correct springs (para 3).
§ The damage described by the plaintiff to the trailer and vehicle differential caused Mr Kessner to form the opinion that while the plaintiff was driving on an unmade road at night he had collided with a very corrugated or damaged road surface at speed causing his vehicle to "bottom-up" causing cracks to the differential and the springs to break. The breaking of the incorrect springs alone would not have caused damage to the vehicle or trailer as claimed by the plaintiff (para. 7).
§ The plaintiff was told not to fit the springs if they were the incorrect springs. The plaintiff was aware that he should not fit the springs if they were not identical to the springs previously fitted to the trailer and was advised to return them if they were incorrect (para 8).
The Magistrates Court Trial
The trial of the minor civil claim took place before Mr SH Milazzo SM on 20 July 2010. Evidence was given by Mr Harradine, Mr Bialek a trailer repairer and Mr Kessner. I will return to discuss the evidence later.
The magistrate was not satisfied that the supply of the incorrect springs was the fault of the defendant and dismissed the plaintiff's claim.
The Application for Review of the Magistrates Decision
On 9 August 2010 Mr Harradine filed an application to review the decision of the magistrate. The application for review set out the following grounds:
1.His Honour, the trial magistrate, erred in that he should have found:
1.1     That the respondent, as the manufacturer of the trailer and the holder of special knowledge, had a clear duty to the applicant to ensure that the respondent supplied the correct trailer springs to the applicant.
1.2     That this duty was especially pronounced as the foreseeable consequences of the wrong springs being fitted were known by the respondent; and included danger to the public, damage to trailer, and other significant loss and inconvenience.
1.3     That the respondent could have easily discharged his duty to the applicant.
2.On the evidence before him, the trial magistrate should have found that the respondent had not discharged his duty (in 1 above) to the applicant.
3.The magistrate erred in that he did not give any, or any sufficient reasons as to how he found that the respondent had discharged his duty to the applicant.
4.The magistrate erred as the applicant had stated to the magistrate that the respondent’s defence was recent invention and yet the magistrate did not take any, or any sufficient, steps to test this assertion.
5.On all the evidence the magistrate did not make sufficient inquiry so as to properly determine the issue of credit between the parties.
6.The magistrate erred in not giving the applicant the opportunity to cross examine the respondent. Particularly as:
6.1     The applicant had indicated the respondent’s defence was recent invention.
6.2     The respondent had made various statements in both in evidence and in his written defence which were glaringly improbably per se but which went unchallenged.
6.3     The respondent, during the trial made various statements at various times which were inconsistence with the evidence then before the magistrate.
6.4     The respondent’s evidence appeared to be a pristine recollection of conversation/s between the applicant and the respondent almost 2 years previously.
6.5     The respondent did not provide relevant documents that the applicant, by registered letter, had asked the respondent to bring to Court.
6.6     The magistrate did not give the applicant the opportunity to examine the plans of spring types put into evidence by the respondent.
7.The magistrate erred in not giving any reasons or sufficient reasons how he decided the issue of credibility as between the applicant and respondent.
8.The magistrate erred in making use of the applicant’s evidence (that the applicant had some difficulty recalling more detail of the conversation/s with the respondent almost two years previously); to impugn the applicant’s evidence about the failure of the respondent to advise him of the two spring/suspension types.
9.The magistrate erred in making use of the applicant’s difficulty, in understanding and accepting his Honour’s explanation that the applicant’s claim was duplicitous; (in relation to the costs of the springs), to find that the applicant had similarly failed to comprehend the respondent’s advice to him in September 2008 and thus, this failure caused the applicant to order and, or, fit the wrong springs.
10.In all the circumstances the magistrate failed to conduct the sufficient inquiry within the meaning of the Act.
The application sought a rehearing of the plaintiff's claim.
The First Review of the decision of the Magistrate by a Judge of the District Court and Judicial Review of the District Court decision in the Supreme Court
On 3 May 2011 there was a review of the magistrate’s decision by a judge of this court who, in an ex tempore decision, affirmed the decision of the magistrate and dismissed the application for review.
The judge was satisfied that the incorrect springs were supplied as a result of misinformation supplied to Mr Kessner by Mr Harradine and further that they were supplied on the basis that they should not be fitted unless they turned out to be the correct springs. The judge found that the magistrate was correct in his final decision that Mr Harradine failed to establish that the supply of the wrong springs was the fault of the defendant Kessner Trailers Pty Ltd. He went further and found that if the magistrate did apply an incorrect test Kessner Trailers Pty Ltd was positively not at fault. In arriving at that decision the judge accepted the evidence of Mr Kessner. The judge affirmed the decision of the magistrate and dismissed the application for review.
I am not concerned with the proceedings before the other judge except to the extent that in the present review the plaintiff has tendered in evidence certain statements by Mr Kessner as evidence of inconsistent statements.
There is no appeal from a review of a minor civil claim but Mr Harradine applied to the Supreme Court for judicial review of the decision of the District Court judge.
In reasons delivered on 12 June 2012 the Hon Justice Blue held that the plaintiff had not been afforded procedural fairness by way of a fair hearing because the District Court judge had failed to rule on an application to adduce new evidence and because of the failure to test the defendant’s evidence concerning fundamental issues in dispute which turned on credibility. Blue J quashed the decision of the District Court judge, set aside his orders and directed the District Court to hear and determine a fresh review.
The present review of the Minor Civil action
A second review of the magistrate’s decision took place before me on 25 September 2012. Because there was an issue of credibility I decided that I should take the evidence again. The transcript of the proceedings and exhibits in the magistrate’s court were also admitted into evidence.[4]
[4] Exhibit P8, T18.
The primary dispute revolves around the telephone discussion between Mr Harradine and Mr Kessner on 11 September 2010 when the springs were ordered. There is a further dispute as to whether Mr Harradine should have fitted the obviously incorrect springs.
The Plaintiff’s Evidence
In his evidence before the magistrate Mr Harradine gave the following evidence in support of his case:
§ The replacement springs looked pretty much the same to him as the original (blue) spring which looked like it had opened. There was a bigger hole at one end of that (original blue) spring which looked like it had opened a bit (TM 5-29).
§ The springs that were supplied to the plaintiff had no oval shaped space in them, but the original spring had an oval in one end. Mr Harradine said: "This was all news to me after the event... Apparently that is critical from what Mr Kessner told me and he said of course they broke, there was no give. Because the springs he supplied me didn't have that oval and that is why they were the wrong springs. They had, that space which surprised me, is deliberate". (TM 6-34 to TM 7-6).
§ Mr Kessner did not warn him of the difference between the two types of springs or that if they were the wrong type the defendant would replace them with the correct ones. (TM 9-22, 9-34).
§ "There was no suggestion that the springs he was sending me that there was any ambiguity or any problem with the identity of the springs". (TM 10-33).
§ Mr Kessner asked for the measurement and Mr Harradine measured from the pin on the trailer. (TM 10-38).
§ Mr Harradine told Mr Kessner it was a tandem trailer, he gave him the information off the compliance plate and then he answered any questions that Mr Kessner asked. (TM 11).
§ The idea of sending the springs back if they were incorrect (as suggested in the Defence) was an absolute nonsense because Mr Harradine needed to repair his trailer urgently for his proposed trip to Adelaide in the school holidays. (TM 12).
§ There was no mention that the springs may have been incorrect. Mr Harradine said "At all times I believed the springs were the right ones so I fitted them to it". (TM 12-13).
§ In answer to the magistrates invitation to tell him what questions Mr Kessner asked of him Mr Harradine replied "Any questions I answered accurately". (TM 12).
§ He relied on Mr Kessner supplying the right springs for a trailer that the defendant had made only two years previously. (TM 13-11).
Mr Harradine did not give evidence of the actual substance of his conversation with Mr Kessner. I refer to the magistrates questioning of Mr Harradine on this topic later.
In his evidence before me Mr Harradine said that he thought the loop at one end of the roller spring was a result of wear over very rough corrugated roads. He said:
So the springs that my trailer had, it turned out, which was unknown to me, that that loop was supposed to be there and it wasn't damaged, it's a space of about three to four inches.[5]
[5] T6 l8.
Mr Harradine said that when he received the springs from the defendant "they hadn't opened up and I thought that these were undamaged, used springs, that was my take on them, and on that point, the fact they had a loop on a opened area, it didn't occur to me that was intentional".[6] The original spring had a loop but the replacement ones did not. He thought the replacement springs "hadn't opened up, and stretched open".[7]
[6] T6 l17.
[7] T6 l26.
As a result of his experience with other things, such as tie rod ends and shock absorbers on cars, Mr Harradine believed that there should not have been any “slop” in the springs. It was because the loop permitted movement that he thought his springs had been damaged and that's why they had "opened up".[8] Mr Harradine did not appreciate that the spring had been designed with a loop to permit movement.
[8] T7 l5.
Referring to a photograph taken by him of an original spring Mr Harradine said that when he looked at that spring he thought that spring was on the way out as well because "you can see slop on the right-hand side where it’s fitted to the trailer.[9] That was the perception I had, that that slop wasn't meant to be there and it had been hammered and opened up. The roads up there are very rough".[10]
[9] Exhibit P1.
[10] T8 l8.
Mr Harradine denied the allegation in clause 3 of the defence where the defendant alleged "I (Mr Kessner) advised him that if they were not the correct springs they were to be returned and we would provide the other rocker/roller suspension springs".
Mr Harradine said there was no comment that he should not fit the springs until he was certain that they were the correct springs and that any comment suggesting anything untoward or that there may have been a problem "would have been totally unacceptable" to him because he was urgently preparing for a trip to Adelaide. He said the conversation alleged by Mr Kessner was "nonsense, it didn't happen".[11] Mr Harradine also said that it was not true that he was told not to fit the springs if they were incorrect springs.[12]
[11] T22.
[12] T25 l17.
Mr Harradine said that his earlier thought that his "trailer had been damaged by the rough roads by the opening up of those loops was confirmed … in his mind by the appearance of the new springs".[13] That belief was erroneous.
[13] T25 l32.
When I observed "I can't imagine how you might have thought that oval space was caused by the bolt hole opening out".[14] Mr Harradine replied:
The spring that broke, the loop where it curls under had opened up sufficiently to let go from the trailer and these springs - as soon as one's mind is brought to the fact that there’s two different kinds of springs the sense of it being obvious is massive as soon as one's alerted to it. That's what I say. Mr Kessner didn't alert in any way that there were two different kinds of springs on that trailer, one had a large hole at one end and one had a small hole at the other. As soon as you are alerted to it it's patently obvious.[15]
[14] T26 l3.
[15] T26 l6.
Mr Kessner's Evidence

Mr Kessner told the magistrate:
When Mr Harradine rang me, he asked me for a set of springs for the rear of his trailer because he had already broken the ones that were on there. He said that the trailer was manufactured in 06. I said to Mr Harradine that since then, we now use two different types of rocker suspensions, one is roller/rocker which I explained to him what they looked like and how they should be and the other one is the rocker suspension...[16]
...When Mr Harradine was talking to me, he wasn't 100% sure on what I was trying to explain to him and like I said to him, if there happens to be a problem, let us know, we will then have to send up the other springs. I can't do any more than how somebody explains it to me over the telephone.[17]
[16] TM14 l15.
[17] TM15 l34.
Mr Kessner said that he explained the difference between the two types of suspension and that Mr Harradine had to ascertain exactly what suspension it was. He said he explained the differences between the two suspensions.[18] He said that he asked Mr Harradine every question that he possibly could and said that if they happened to be the wrong springs the plaintiff would return them. He said that happened regularly.[19]
[18] TM16.
[19] TM17 l10 to 18.
Mr Kessner said that he sent Mr Harradine "a little sketch of the spring that we discussed which I interpreted by listening to Mr Harradine that I thought was the particular spring, with measurements the whole lot".[20] The sketch is on a tax invoice which Mr Kessner said he faxed to Mr Harradine.[21] Later Mr Kessner said that he sent Mr Harradine a tax invoice stating that it was a “rocker” suspension and said to him "If they happen to be the wrong springs, do let us know and we will have to supply the right ones".[22]
[20] TM7 l19.
[21] Exhibit D2.
[22] TM8 l5.
Mr Harradine said that he never saw that tax invoice until after these proceedings had been commenced. Whether Mr Harradine received the tax invoice or not I accept the evidence of Mr Kessner that he did prepare the document. It contained a drawing of a "rocker" assembly and also referred to a "rocker" assembly.
At the time the invoice was received by Mr Harradine from the Pt Augusta Magistrates Court the dispute between the parties had not matured to the stage where it would have been relevant for Mr Kessner to fabricate a document which included the diagram and reference to a "rocker" assembly. Even if it had not been received by Mr Harradine the tax invoice does corroborate the evidence of Mr Kessner as to the subject matter of his discussion with Mr Harradine. The tax invoice contains Mr Harradine’s fax number and a statement that the invoice was paid. There is an inference that Mr Harradine did receive the tax invoice, but my ultimate decision is not dependent on a finding to that effect.
The evidence of Mr Kessner as to the subject matter of the conversation is also corroborated by two e-mails which Mr Harradine sent to the defendant in the late afternoon of 11 September 2008 with the heading "2x rocker springs".[23]
[23] Exhibit P3.
The Decision of the Magistrate
The learned magistrate delivered ex tempore reasons for his decision saying inter alia:
2.   The plaintiff's claim is that he was given the wrong advice by the defendant. The defendant denies this. The plaintiff was somewhat vague concerning the exact discussions that he had with the defendant when ordering the springs. He assured me that when asked questions about the suspension he answered questions accurately. However, he could not recall what questions were asked. I suspect Mr Kessner had less than a detailed memory of the conversation he had with Mr Harradine but the same token, I am satisfied on the balance of probabilities that Mr Kessner appreciated that there were two different types of springs potentially fitted to the trailer and that he needed to ascertain what sort of spring had been fitted to Mr Harradine's trailer. I pause to state a simple principle.
3.   Mr Harradine chose to repair his trailer himself. If he fitted the wrong springs to the trailer without more, then that was his responsibility. It is only if Mr Harradine made it clear to Kessner’s that he was totally reliant upon them to supply the correct springs that he has a claim against Kessner's.
4.   Two things are apparent from the evidence. One is that at the time Mr Harradine did not appreciate the difference between the two types of suspension. The second thing that is clear is that he does not remember what questions he was asked and what answers he gave when he ordered the springs from Mr Kessner.
5.   The plaintiff bears the onus of satisfying me on the balance of probabilities that he has a claim against the defendant. That is, I must be satisfied that what the plaintiff puts to me is more likely than not. I am not satisfied that everything that Mr Kessner told me about his conversation with Mr Harradine was completely accurate. I don't believe that Mr Kessner could remember the conversation in the detail he appeared to at times. In particular there are statements made by Mr Kessner in his defence concerning the return of the springs and their suitability which I suspect may not have been made.
6.   I am satisfied however, that if Mr Harradine had asked the right questions of Mr Kessner he would have received accurate information from him. It is possible that because Mr Harradine didn't appreciate that there were two different types of leaf springs that on the only information provided was the length of the springs (sic). It may have been that Mr Harradine did not ask the proper questions of Mr Kessner and Mr Kessner did not appreciate that Mr Harradine required advice concerning the type of springs that needed to be purchased.
7.   Because Mr Harradine does not remember the questions that he asked and the answers that he got and because I am satisfied that Mr Kessner would have answered any questions put to him accurately, I cannot be satisfied that it was apparent to Mr Kessner that Mr Harradine was relying upon him to determine what springs Mr Harradine required.
8.   Although this is perhaps a little harsh, I also think that Mr Harradine should have realised that the springs that were supplied were different from the springs that were already on the trailer. It should have been apparent to him from an inspection of the springs. It should also have been apparent from the conversation he must have had with Mr Kessner concerning the different types of spring used by the defendant.
9.   Unfortunately, Mr Harradine took it upon himself to replace the springs and did not ensure that he installed the correct type. He has not satisfied me on the balance of probabilities that his failure to obtain the correct springs was the fault of Kessner Trailers.
…
11. It all of the circumstances, I am not satisfied that the supply of the incorrect springs is the fault of the defendant. Accordingly, the plaintiff's claim must be dismissed.
Minor Civil Claims and Reviews thereof
The hearing of minor civil claims is provided for in s 38(1) of the Magistrates Court Act 1991 which provides:
38—Minor civil actions
(1) The following provisions are applicable to the trial of a minor civil action:
(a)the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)the Court may itself call and examine witnesses;
(d)the parties are not bound by written pleadings;
(e)the Court is not bound by the rules of evidence;
(f)the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms
The review of the decisions of magistrates in minor civil claims by the District Court is provided for in subs 38 (7) which states:
(7) The following provisions apply to such a review by the District Court:
(a)the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)in determining the matter, the Court may—
(i) affirm the judgment; or
(ii) rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii) if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate;
or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Decision of Blue J
In his reasons for decision on the judicial review of the first minor civil review Blue J said (para 53) that s 38 suggested that the following principles apply to the review of minor civil actions:
1.   The review is not in the nature of an appeal stricto sensu.
2.   The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and "may" rehear that evidence.
3.   The review is not necessarily an appeal by way of rehearing in that it is a "review" (not an "appeal"), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the "fresh evidence" rules which apply to appeals by way of rehearing.
4.   The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and the magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.   If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6. To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
Blue J considered that there had been a denial of procedural fairness to Mr Harradine by reason of the District Court judge’s failure to rule on the admission into evidence of a catalogue which had been marked identification by the magistrate and the failure of the judge to enquire into the apparent inconsistencies in Mr Kessner's evidence as to central aspects of Kessner Trailers’ case.
Blue J rejected the plaintiff’s contention that a party to a minor civil action under s 38 (1) and a review under s 38 (7) has the right of cross-examination that exists under an adversarial system, because the trial is to take the form of an inquiry rather than an adversarial contest. He said that the magistrate was not prevented by s 38(1) from permitting the parties to cross-examine the witnesses, but that if cross-examination did not occur it was incumbent on the magistrate to question the witnesses to test their story concerning the contested facts upon which the determination of the dispute depends.
Blue J said that given the finding which the District Court judge did make accepting Mr Kessner's evidence in preference over Mr Harradine's evidence, it was appropriate to exercise his discretion to quash the decision of the District Court dismissing the review.
Blue J identified the following inconsistencies in the evidence of Mr Kessner which required investigation by the District Court judge:
1.   The apparent external inconsistency between Mr Kessner's evidence to the Judge that the dimensions of a "rocker" spring and "rocker roller" spring are totally different and the IESM catalogue which demonstrated that the dimensions were in fact identical.
2.   The apparent internal inconsistency in Mr Kessner's evidence between saying to the Judge (and the Magistrate at one point) that Mr Harradine gave measurements to Mr Kessner, and saying to the Magistrate at one point that Mr Harradine gave no measurements to him but he gave measurements to Mr Harradine.
3.   The apparent internal inconsistency in Mr Kessner's evidence between saying the Judge at one point that he could not telephone Mr Harradine, and at another point saying to the Judge that he sent the tax invoice (containing a diagram and measurements) by facsimile.
4.   The apparent external inconsistency between Mr Kessner's evidence to the Judge that Mr Harradine did not have a telephone and the tax invoice made out by Mr Kessner which recorded Mr Harradine's phone number.
5.   The apparent internal inconsistency in Mr Kessner's evidence between saying at one point to the Magistrate that Mr Harradine told him that the suspension was a "rocker" suspension, and at another point saying to the Magistrate that Mr Harradine did not know what type of suspension it was.
Blue J said:
The judge did not put to Mr Kessner these apparent inconsistencies in his evidence. The mere fact that a judge on a review does not inquire into every single potential inconsistency in a party’s evidence, however trivial, does not give rise to a conclusion that the judge has not performed his or her judicial function or afforded procedural fairness to the other party. On the other hand, in a case turning on credibility and factual findings, if the judge does not inquire into (or invite cross-examination on) potential inconsistencies in a party’s evidence concerning matters central to the fundamental issue in dispute, prima-facie the judge does not perform his or her judicial function and does not afford procedural fairness to the other party.
In the present case, the central issues in the case included discussion (if any) on the topics:
§which one of two different incompatible types of suspension, namely a "rocker" suspension or a "rocker roller" suspension the Trailer might contain;
§whether there was a difference in the measurements between a "rocker" and a "rocker roller" spring and whether Mr Harradine gave to Mr Kessner measurements apposite to a "rocker" as opposed to a "rocker roller" spring.
The potential inconsistencies identified by Mr Harradine during the hearing of the review (leaving aside the issue of electronic communication) related directly to these central issues. In those circumstances, it was necessary that Mr Kessner be questioned concerning these potential inconsistencies by the Judge (in the event that Mr Harradine was not invited to cross-examine).[24]
[24] paras 89 and 90.
Mr Harradine's cross-examination of Mr Kessner
At the second review Mr Harradine conducted a spirited cross-examination of Mr Kessner which extended to almost 30 pages of evidence.
Mr Kessner repeated his evidence that he sent a tax invoice to Mr Harradine and said:
...I sent you a tax invoice with measurements because you weren't clear, you weren't understanding what I did ask of you… because you were unsure, I even drew a picture on the tax invoice stating some measurements - I can't remember because we're talking three years ago - and I sent that with the springs.[25]
[25] T37 l11.
After inspecting the tax invoice Mr Kessner said that he sent the invoice with the springs because the measurements were to ascertain if they were springs for 14 inch wheels or 16 inch wheels.[26] That evidence caused Mr Harradine to interject with the suggestion that the tax invoice was not sent to help him choose the right springs or to clarify what kind of springs they were.[27]
[26] T41 l21.
[27] T42 l3.
Mr Kessner said that the question he asked Mr Harradine on that particular day was:
Does it have two eyes at either end of the spring and are they the same? If they are, it is a rocker suspension. If it has a small eye and a very large ring eye at the opposite end, it would be a roller rocker.
As soon as that statement was made by Mr Kessner Mr Harradine again interjected saying that Mr Kessner said nothing of the kind about there being two different eye sizes on the springs.[28]
[28] T38 l20.
Later Mr Kessner said:
I was adamant in what I said, trying to ascertain what type of springs they were, did they have an eye at either end which would have a hole in there the same size at either end, and if they were a spring that had a small hole at one end and an oval eye at the opposite end. Those were the questions that I asked you. That's the questions that I ask every single person, and after 32 years of being in business, I've never come across anyone like yourself. I've never had any complaints, I've never, ever had a problem with supplying suspensions throughout Australia.[29]
[29] T40 l25.
As that dialogue reveals there was a significant contest between Mr Harradine and Mr Kessner as to what was discussed during the telephone conversation. The conversation is central to the case. An exchange of comments occurred with Mr Harradine suggesting that Mr Kessner had "a lot of difficulty in recalling what went on in that telephone conversation" and Mr Kessner responding "Mr Harradine you got a lot of difficulty in explaining your arguments every time, even today…".[30]
[30] T42 l23.
Mr Kessner commented that Mr Harradine "obviously did struggle to see the difference between the two springs, which they are clearly two difference springs" and he said to Mr Harradine:
You were sent the wrong spring, through the information that you gave me. I can't say any more. I went on the information that you gave me. They were the springs that I sent you.[31]
[31] T43 l10.
Mr Harradine asked Mr Kessner what information did he give Mr Kessner to which Mr Kessner replied:
The information I would have asked you about the eyes at either end and how you explained it. How you explained it three years ago, I can't be precise on the exact conversation but the argument is, at the end of the day, with you, Mr Harradine, is that they’re two different springs and you fitted the wrong springs.[32]
[32] T43 l16.
Mr Kessner had told the magistrate that the measurements which Mr Harradine gave him indicated "exactly a rocker spring". He had said "they are the correct measurement for a rocker suspension. A rocker/roller suspension is completely and utterly different".[33] However in the cross-examination before me Mr Kessner contradicted that previous evidence saying that there is no measurement that tells you that they are a rocker spring.[34] He agreed that the measurements of the different springs were the same from the eyes but said they are two totally different suspensions.[35] Later Mr Kessner said "spring measurements have nothing to do with the different types of springs. It's the look. They are two totally different springs".[36]
[33] T57 l31.
[34] T56 l27.
[35] T56 l32.
[36] T58 l10.
The evidence that Mr Kessner gave before the magistrate that the measurements indicated “exactly a rocker spring” was incorrect. That was the first of the five inconsistencies identified by Blue J (see above). The measurements did not indicate "exactly a rocker spring" and Mr Kessner could not have determined that the trailer was fitted with rocker springs from the measurements that Mr Harradine gave him.

Mr Harradine cross-examined on the topic of whether Mr Kessner could send an e-mail to Mr Harradine. To make his point Mr Harradine referred to Exhibit P3 which consists of two email messages from Mr Harradine to Mr Kessner dated 11 September 2008 at 4:47 p.m. and 5:50 p.m. Both are headed "2 x rocker springs". The first e-mail confirmed that $336 had been paid into Kessner Trailers’ bank account "for 2 springs as discussed". It is significant that in the e-mail messages Mr Harradine referred to "rocker springs".
Mr Kessner said that he had difficulty in remembering the conversation. Given the time that has elapsed he cannot be criticised for that, but it is a reason to scrutinise his evidence carefully. It is apparent that some of his evidence is based upon reconstruction rather than a recollection based on memory.[37]
[37] See for example T69 l21.
Mr Kessner was cross-examined about his evidence at the first review. He had told the judge that he faxed the tax invoice because he wanted to be certain that the defendant was sending the correct springs. Mr Kessner was unable to recall the exact conversation but said:[38]
...if that's what I said, I'm only just trying to be precise in making sure, to the best of my ability, that the right springs were sent with the information that I asked from Mr Harradine and perceiving in what he said, I come to the conclusion that they were rocker suspension - rocker springs...its questions that you would ask anybody regardless of it was with trailer stuff or anything that you send to the yard, you ask specific questions to try and work out what the customer is really requiring, especially if it's not in front of you and you've got two different objects.[39]
[38] Exhibit D2.
[39] T70 l33.
Conclusions as to the evidence of Mr Kessner
In the way which I have already mentioned the District Court judge did accept the evidence of Mr Kessner at the first review. The magistrate had not accepted the evidence of Mr Kessner without reservation. The magistrate said:
§ He suspected Mr Kessner had less than a detailed memory of the conversation he had with Mr Harradine (para 2).
§ He was not satisfied that everything that Mr Kessner told him about his conversation with Mr Harradine was completely accurate (para 5).
§ He did not believe that Mr Kessner could remember the conversation in the detail he appeared to at times (para 5).
§ There are statements made by Mr Kessner in his defence concerning the return of the springs and their suitability which he suspected may not have been made (para 5).
I respectfully agree with each of those observations of the magistrate.
The inconsistencies identified by Blue J provide reasons to have reservations about Mr Kessner's evidence. However that does not mean that the evidence of Mr Kessner must be rejected in its entirety. I am prepared to act upon the evidence of Mr Kessner when it is corroborated by objective surrounding circumstances.
Mr Harradine's oral submissions
When making his oral submissions Mr Harradine said that his case was that there was no style of spring discussed at any time, that is style in terms of one being a rocker/roller and one being a rocker spring with different eye sizes.
Mr Harradine said that Mr Kessner never told him that if they were wrong springs he should send them back. He said there was no confusion about the springs, that he gave Mr Kessner measurements and they very quickly got off the phone after Mr Harradine had given him those measurements.
That submission is shown to be incorrect by the heading on Mr Harradine’s own email messages which in each case specifically refers to rocker springs.[40]
[40] Exhibit P3.
Mr Harradine said in his submissions that Mr Kessner asked him for measurements and that he went away and measured those points. Mr Harradine said:
...that's pretty obvious that D2 are measurements that came from me, the tax invoice that came from me. They're not accurate. They don't relate accurately to any springs. A trailer manufacturer surely would have given the accurate measurements for the springs he provides. In my submission it’s very obvious the information on D2 came from me. The width of the springs, the number of leaves, my phone number and the two measurements from the eye to the bolthole.[41]
[41] T74 l2.
That is a curious submission because the information on Exhibit D2 includes the statement "rocker springs only" and the diagram on Exhibit D2 depicts a rocker spring, not a rocker/roller spring.
It is interesting that Mr Harradine now asserts that the measurement from the eye to the bolthole came from him. In the video Mr Harradine is shown measuring from eye to eye, not from an eye to the bolthole.[42] I discuss his conflicting evidence on that topic later.
[42] Exhibit P7.
Mr Harradine pointed out the inaccuracy of Mr Kessner’s evidence that the measurements for the different types of springs were different. Mr Kessner had told the magistrate "Mr Harradine gave me those measurements, indicated that it was exactly a rocker spring. Not rocker/roller. He has obviously measured them incorrectly…".[43] That evidence by Mr Kessner was not just an inconsistency; it was a fundamentally misleading statement. Mr Kessner could never have identified the spring as a rocker spring from measurements. If that evidence of Mr Kessner had been correct, which it was shown not to be, it was an attempt by Mr Kessner to support the defendant's claim that the decision to send rocker springs (rather than a rocker/roller springs) was based upon information which Mr Harradine had provided. The fact that the dimensions of both rocker springs and rocker/roller springs are the same means that Mr Kessner could not have decided that Mr Harradine required a rocker spring on the basis of measurements that Mr Harradine provided. Mr Harradine submitted that the magistrate was swayed by that evidence.[44]
[43] TM46 l17.
[44] T76 l14.
The rejection of the evidence of Mr Kessner that he identified Mr Harradine's requirement as a rocker spring from the measurements provided by Mr Harradine leaves open the question of just how did Mr Kessner identify a rocker spring.
Mr Harradine's written Summary of Argument
In addition to his oral submissions Mr Harradine relied upon a written summary of argument dated 25 September 2012.
Paragraph 1 of the summary contained an application to put fresh evidence before the court. That application was granted and two further exhibits, Exhibits P9 and P10, were admitted into evidence. Exhibit P9 contains two photographs of the original spring, one of which identifies the manufacturer from a label. Exhibit P10 is two pages of the spring manufacturer’s catalogue which had been marked for identification before the magistrate. One page shows particulars of a tandem rocker/roller assembly and the other page shows a tandem rocker assembly. The pages disclose that in the case of both the rocker assembly and the rocker/roller assembly the size of the main leaf is 60 x 6 mm.
The catalogue is dated 1 October 2010. There was no issue in this case as to whether the catalogue correctly described the dimensions of the springs that would have been used on a trailer manufactured in 2006.
The dimensions of the spring assemblies shown in the manufacturer’s catalogue establish that the evidence of Mr Kessner was incorrect when he said that there was a difference between the length of the two types of spring. What that means is that Mr Kessner could not have decided whether Mr Harradine required a rocker assembly or a rocker/roller assembly from information as to the length of the assembly.
Paragraph 3 of the plaintiff’s summary of argument contained an application to cross examine the respondent. As I have mentioned that application was granted and Mr Harradine did cross-examine Mr Kessner. The cross examination occupied almost 30 pages of transcript, about one half of half of the transcript of the review.
In para 2 of his written Summary of Argument Mr Harradine set out 11 what he described as “main reasons” why the District Court should intervene. I will deal with each of those reasons separately.
Mr Harradine's 11 "main reasons" why the District Court should intervene
2. Why the District Court should intervene:
(a) His Honour, the trial Magistrate, erred in law, (reasons for judgment, pg 1, para 3), in holding the applicant was required to make his reliance on the respondent’s skill or judgment clear to the respondent
Sale Of Goods Act 1895 s 14(1)
Ashford Shire Council v Dependable Motors Pty Ltd (1960) 60 SR (NSW) 27
Section 14 of the Sale of Goods Act provides:
(a) where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of the description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose…
Mr Harradine's written summary referred to Ashford Shire Council, but Mr Harradine did not take the court to the authority. The reference which he provided was a reference to the decision of the Full Court of the Supreme Court of New South Wales. The case went on appeal to the High Court of Australia and then the Privy Council. Lord Reid who delivered the judgment of the Privy Council ((1961) Appeal Cases 336, 350) referred on the topic of reliance to the following "well-known statements of the law":
§Such reliance must be affirmatively shown; the buyer must bring home to the mind of the seller that he is relying on him in such a way that the seller can be taken to have contracted on that footing. The reliance is to be the basis of a contractual obligation. (Cammel Aird and Co v The Manganese Bronze and Brass Co (1934) AC 402, per Lord Wright).
§… the reliance in question must be such as to constitute a substantial and effective inducement which leads the buyer to agree to purchase the commodity. (Medway Oil and Storage Co v The Silica Gel Corporation (1928) 33 Com Cas 195, per Lord Sumner).
Before there can be an implied condition of fitness for purpose the buyer must show that he made known to the seller the particular purpose for which the goods were required and show that the buyer relied on the sellers skill or his judgment. Mr Harradine has not proved those two things.
The statement of the magistrate which is complained about was not erroneous, but if it was Mr Harradine has not satisfied the requirements stated by Lord Reid.
(b) His Honour, the trial Magistrate, erred in law, in holding that applicant’s claim required that the applicant’s reliance upon the respondents skill or judgment be total
Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441
This really raises the same issues as the preceding paragraph.
I am at a loss to understand how the decision of the House of Lords in Ashington Piggeries assists the plaintiff's argument. Mr Harradine has done no more than refer to the decision.
The magistrate said: "It is only if Mr Harradine made it clear to Kessner's that he was totally reliant upon them to supply the correct springs that he has a claim against Kessner's".[45] That statement may have overstated the extent of the degree of reliance. The Laws of Australia states: "There must be actual reliance by the buyer upon the seller's skill or judgment and this must be disclosed to the seller expressly or by implication at all before the time of contracting". The authority cited is Ashford Shire Council.[46]
[45] Reasons para 3.
[46] TLA [8.4.52].
If the magistrate did make an error of law that was inconsequential because there was no evidence that Mr Harradine had established actual reliance upon Kessner's skill or judgment.
Before telephoning Kessner Mr Harradine had made enquiries of another trailer manufacturer and he knew what he required. There is no evidence that the plaintiff relied upon any representation by Mr Kessner in choosing a particular type of spring. Whatever Mr Kessner said could only have been responsive to information provided by Mr Harradine.
The evidence does not establish that there was an implied condition in the contract of sale.
(c) His Honour, the trial magistrate should have held at law that the respondent had a duty when supplying the springs to the applicant, to supply springs fit for the purpose of functioning as springs of the applicants trailer, particularly as the respondent manufactured the trailer and was the holder of special knowledge
Sale of Goods Act 1895 s 14(1)
Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441
Gibbett v Forward Products Pty Ltd [2001] FCA 290 (30 March 2001)
And, that this duty applied unless the circumstances showed that the applicant did not rely, or that it was unreasonable for the applicant to rely, on the respondent’s skill or judgment
Trade Practices Act 1974 (Cth) s 71(2)
Section 14 of the Sale of Goods Act 1895 is set out above.
Subsection 71(2) of the Trade Practices Act 1974 also implies a condition that goods are reasonably fit for any particular purpose for which the goods are being acquired where "the consumer expressly or by implication makes known to the corporation or to the person by whom any antecedent negotiations are conducted any particular purpose for which the goods are being acquired".
To bring himself within such provisions Mr Harradine must show that he made known to the defendant "the particular purpose for which the goods are required" or "are being acquired". In order to satisfy those requirements Mr Harradine must establish that he made known to Mr Kessner the particular purpose for which the springs were required that is for a trailer with roller/rocker suspension. The evidence does not do that.
A condition that the goods were fit for a particular purpose is different from the duty which is the subject of this "main reason". Mr Harradine's submission confuses the defendant's duty with the conditions of the contract. They are different concepts.
Whether the alleged duty existed depends upon the facts established by the applicant, specifically what was said in the telephone conversation between Mr Harradine and Mr Kessner.
The magistrate found that Mr Harradine had not satisfied the onus of proof. He said that Mr Harradine did not remember the questions that he asked or the answers that he got. The magistrate could not be satisfied that it was apparent to Mr Kessner that Mr Harradine was relying upon him to determine what springs Mr Harradine required.[47]
[47] Reasons of magistrate para 7.
For the purpose of this review the evidence does not satisfy me that Mr Harradine brought home to the mind of Mr Kessner that he was relying on him in such a way that Mr Kessner can be taken to have contracted on that footing. Nor does the evidence satisfy me that there was reliance by Mr Harradine upon any representation which constituted a substantial and effective inducement which led him to agree to purchase the trailer springs.
The established facts do not support the existence of any duty. There is no evidence that Mr Kessner was aware of the characteristics of Mr Harradine's trailer or aware of the particular purpose for which the springs were required, that is for use in a trailer with roller/rocker suspension. Mr Harradine's evidence does not establish the material substance of the telephone conversation on 11 September 2010. Mr Kessner did not know of his own knowledge whether Mr Harradine's trailer was fitted with roller springs or rocker/ roller springs. He was reliant upon Mr Harradine told him over the telephone for that information.
It can be inferred that Mr Harradine never conveyed appropriate information to Mr Kessner, because if he had Mr Kessner would have supplied the correct springs. There was no reason why Mr Kessner would not have attempted to supply the correct springs.
(d) The trial Magistrate erred in not considering that the applicant’s claim could also have been characterised as a tortious claim of negligence. (That the respondent had a duty of care to the applicant to ensure that the correct springs were supplied to the applicant, that this duty was especially pronounced as the foreseeable consequences of the wrong springs being fitted were both known to the respondent and included danger to the public, damage to trailer, and perhaps other significant loss and inconvenience)
Paragraph 19(a) of the plaintiff’s Statement of Claim alleges that the supplier of the springs was negligent.
Whether the defendant was negligent or not must depend upon the facts proved by the plaintiff. Kessner Trailers was no more than a vendor of goods, namely two springs. The relationship between the parties was governed by the law of contract.
The plaintiff has not proved any facts which establish a breach by Kessner Trailers of the duty of care which is alleged against the defendant.
(e) The trial Magistrate should have found that the respondent had not discharged his statutory (or common law) duties to the applicant
This general assertion lacks specificity and it takes the matter nowhere. It does not identify the alleged duties.
The evidence does not establish any breach of statutory or: law duties.
(f) The trial magistrate did not give any, or any sufficient reasons as to whether or not, he found that the respondent had discharged his duty to the applicant
Given the nature of this review the alleged failure to provide reasons is inconsequential. I am required to consider the merit of the claim. For the purposes of this review the question is whether Mr Harradine has established that Mr Kessner was in breach of duty.
However there is no merit in the complaint in any event because the magistrate did provide satisfactory reasons which outlined the basis for his decision.
The applicant has not identified the duty which is referred to. I have found that the evidence does not establish any breach of duty by the defendant.
(g) The trial magistrate erred in not properly analysing and considering the evidence before him in that it was fraught with inconsistencies, contradictions, and absurdities and was incomplete and ought not to have been relied upon
Samuels v Maple (1992) 165 LSJS 114
For example on the topics:
Unable to contact the applicant by phone: …
The difference between the 2 spring types: …
Issue of measurements supplied: …
Cause of springs breaking: …
The inherent improbability of the respondents evidence (to the effect of) "the applicant was told to return springs if incorrect and we'll replace them"
in that, such a scenario would be nugatory to the applicant's intention to travel with the trailer to Adelaide in the impending school holidays from an extremely remote area, and also confounding, in view of the spring types being so obviously and simply distinguishable.
The alleged inconsistencies in Mr Kessner's evidence are matters that can be considered on this review.
However it is significant that this case was not decided by the magistrate on the basis that he preferred the evidence of Mr Kessner to the evidence of Mr Harradine. The evidence of Mr Kessner can be left to one side. The decision of the magistrate was based on the failure of Mr Harradine to adduce evidence which satisfied the onus of proof and established a basis for his claim. The suggested inconsistencies were inconsequential to the magistrate's reasoning. In fact his Honour did express reservations about the evidence of Mr Kessner.
(h) The trial Magistrate did not make sufficient inquiry, as required by the Magistrates Court Act so as to properly determine the facts or the issue of credit between the parties
Matters requiring further inquiry were:
(i)       The matters in sub-para g above.
(ii)      The respondent’s action in tendering diagrams of two types of spring which contained dimensions for only one type.
(iii)     The respondent's assertions that the springs supplied and those required were "completely and utterly different"
(iv)     As the measurements depicted in exhibit D2, the origin of those measurements and the respondent’s manner of reconciling those measurements with the springs supplied.
(v)      The need for the respondent to ask for measurements in any event.
(vi)     The precise differences in the dimensions of the two spring types.

I reject Mr Harradine's submission that the magistrate did not make sufficient enquiry. The transcript of evidence discloses that each party was given an unrestricted opportunity to present its case. The case was decided on the basis that Mr Harradine's own evidence did not discharge the onus of proof. The magistrate cannot be criticised for that.
Whilst I acknowledge the statement of Blue J that the review is to take the form of an enquiry rather than an adversarial contest, the plaintiff still retains the onus of proving his case. Mr Harradine did not satisfy that requirement.
The decision of the magistrate did not turn on a finding as to credit. As I have mentioned the magistrate did have reservations about the evidence of Mr Kessner and his rejection of the claim of Mr Harradine did not depend upon acceptance of the evidence of Mr Kessner.
Whether the learned magistrate did or did not make the suggested enquiry for the purpose of determining the facts or the issue of credit is now inconsequential given that the merit of Mr Harradine's claim can be considered afresh on this review.
(i)     The trial Magistrate erred in not giving the applicant the opportunity to cross examine the respondent as:
(i)       Cross examination would likely have alerted the Magistrate, to some extent, to the inconsistencies in the respondent’s evidence as exemplified in sub-para g above.
(ii)      The Magistrate himself did not make sufficient inquiry of the respondent as in sub-para h above
(iii)     Cross examination on the respondent's failure to comply with the applicant's request for spring details could have, in view of the misleading evidence as to spring dimensions, impugned the respondent’s credit.
(iii)     The evidence was generally left in an incomplete and unsatisfactory state as to the determination of the issues of fact and credit.
Comcare v Maganga [2008] FCA 285 (11 March 2008)
Hamilton-Smith v George [2003] SADC 157 (27 November 2003)
Harradine v District Court of South Australia [2012] SASC 96
(12 June 2012)
Cross-examination of Mr Kessner is no longer an issue because Mr Harradine was given the opportunity and did cross-examine Mr Kessner at length on the hearing of this review.
(j) The Magistrate erred in not giving any reasons or sufficient reasons how he decided the issue of credibility as between the applicant and the respondent
Also the learned magistrate did not decide the issue of credibility between Mr Kessner and Mr Harradine. In fact he had reservations about the evidence of Mr Kessner.[48] The decision of the learned magistrate turned on his finding that the evidence of Mr Harradine had not discharged the onus of proof and establish the basis of a claim.
[48] Reasons of magistrate para 5.
The failure to give the reasons which are identified is inconsequential on this review. On this review I am required to consider the merit of Mr Harradine's claim.
(k) The trial Magistrate erred in making use of the applicant’s difficulty, in understanding the Magistrate’s confusing and erroneous explanation of his, (the Magistrate’s) intention to strike out costs of the springs and freight from the applicant's claim, to undermine the applicant's credit
There is no merit in this complaint. In any event it is inconsequential given the nature of this review.
The claim for damage to the Nissan Patrol motor vehicle
There is no evidence that the damage suffered by the trailer could have resulted in damage to the differential housing of the Nissan patrol motor vehicle.
It is unnecessary for me to address the allegation in the defence that the damage was caused by a damaged road surface causing the vehicle to "bottom‑up".
Discussion and Findings
The plaintiffs claim depends primarily upon what was discussed between Mr Harradine and Mr Kessner over the telephone on 11 September 2010.
The learned magistrate correctly found that the plaintiff had the onus of satisfying him on the balance of probabilities that he has a claim against the defendant.[49] He found that because Mr Harradine did not remember the questions that he asked and the answers that he received during the telephone discussion he could not be satisfied that it was apparent to Mr Kessner that Mr Harradine was relying upon him to determine what springs Mr Harradine required.[50]
[49] Reasons of magistrate para 5.
[50] Reasons of magistrate para 7.
The authorities referred to by Mr Harradine go to the issue of whether there was an implied condition as to fitness for purpose. The Laws of Australia states that for there to be an implied condition as to fitness for purpose:
There must be actual reliance by the buyer upon the seller's skill or judgment and this must be disclosed to the seller expressly or by implication at or before the time of contracting…. Whether there is any such reliance is a question of fact to be answered by examining all that was said and done with regard to the proposed transaction.[51]
[51] TLA [8.4.52].
Mr Harradine did not disclose the particular purpose for which he required the springs, that is for use on a trailer fitted with rocker/roller springs.
At the time of the telephone conversation Mr Harradine did not know that his trailer was fitted with rocker/roller springs. He believed that the springs which he required had a 5/8” bush at each end. He did not disclose to Mr Kessner that he required a rocker/roller spring. While the material substance of the conversation is not known it is likely that if asked to describe the spring that he required Mr Harradine would have described a rocker spring; because that was consistent with his belief as to what he required. Mr Harradine has not established the pre-requisites for an implied condition as to fitness for purpose.
As to any claim based on negligence or breach of duty Mr Harradine has made very general assertions which take the matter nowhere. The evidence does not establish any breach of duty.
The telephone conversation
The five inconsistencies identified by Blue J have substance and do create doubt about the reliability of the evidence of Mr Kessner. However they do not provide reason to discount his evidence in its entirety.
There are also inconsistencies in the evidence of Mr Harradine. For example his evidence that he had not heard the expression "rocker spring" is shown to be incorrect by Mr Harradine's own e-mail messages.[52]
[52] Exhibit P3.
I am not prepared to accept the evidence of either Mr Kessner or Mr Harradine as to the telephone conversation without objective corroboration.
Mr Harradine incorrectly believed that his trailer required springs with the features of rocker springs, that is springs which had a small eye hole at each end and did not have a 4 inch loop at one end. He incorrectly believed that the 4 inch loop on the original springs was an indication of damage.[53]
[53] Exhibit P1.
Mr Harradine told the magistrate that before contacting the defendant he had spoken to "another trailer person" who indicated the kind of measurements that were necessary. In his evidence on this review Mr Harradine said that prior to telephoning Mr Kessner he "had approached South Australian SA Trailer and Chassis …on Port Wakefield Road in about June and asked them what I needed to do to get replacement springs and they described measurements which I didn't have had so I went back from those school holidays and called Mr Kessner…".[54]
[54] T8 l22.
Accordingly when Mr Harradine telephoned the defendant he had a preconceived idea as to what he required.
The magistrate was satisfied that Mr Kessner appreciated that there were two different types of springs that could have been fitted to the trailer. Because of that Mr Kessner needed to ascertain what sort of spring had been fitted to Mr Harradine's trailer.
The conversation therefore took place in an environment where Mr Harradine already had information as to what he required and a belief that the spring had a small eye hole at each end and Mr Kessner needed to ascertain whether Mr Harradine required a rocker spring or a rocker/roller spring.
On the topic of the questions that Mr Kessner asked the following dialogue took place between the magistrate and Mr Harradine:
QHe said that he asked you a whole lot of questions though, you deny that.
AWhatever questions he asked me, I answered but there was no suggestion they might not be the right springs, that was never, ever came up. I would have photographed them or videoed them and sent him an e-mail in an instant.
QThe problem I have is that he knew there were two different kinds of springs.
AWho knew?
QMr Kessner. So, he must have asked you something to ascertain what springs you needed.
AI didn't know. I don't know, whatever he asked, I answered accurately.
QDid he tell you that there were two different kinds of springs.
AThere was no question of ambiguity about springs. In fact, I felt he dealt with me a little bit glibly when I got off the phone. Well, that was quick. He seemed to know what I was talking about and what was required.[55]
[55] TM18.
A little later the magistrate returned to the topic:
QAll of that begs the question whether, what questions you were asked and what you said and you don't seem to have a clear recollection of that, which I can understand.
AWhat I have a clear recollection of is that there was no ambiguity whatsoever, what Mr Kessner, Mr Kessner must be confusing me with somebody else. There was no question. Nothing. Its nonsense that anything of the nature of, if they happen to be the wrong spring, send them back. We get one truck on a Tuesday.
The magistrate revisited the same topic once more:
QYou haven't been able to tell me what questions he asked you. How did you decide.
AI remember he asked for, obviously the length, I have got that AVI of me fitting them.
QI am asking you what he asked you when you bought the springs. That is what you haven't told me.
AIt is a little vague now that the measurement from pin to pin and also I believe to the best of my recollection he asked me the distance of the loop from a parallel straight line.
QSo, did you go out and ring him back or what.
AWhat was that?
QDid you ring him back or e-mail him back.
AThere was no need to. When I spoke to him, I rang him twice. I have got the phone bill to show you the phone conversation. I rang him twice and he seemed to be very clear and quick in deciding what springs I needed.
QHe asked you for information. You had that at your fingertips did you.
AYes. I had already measured it up. I had spoken to another trailer person and they indicated the kind of measurements. I actually, there were two conversations. There may have been one where he said go back and measure this and this. That part is vague. The precise questions he asked me are vague but I done the measurements, but what he didn't say and what actually didn't happen is that there was any ambiguity about whether, what kind of suspension by trailer has. That was absolutely clear. There was no ambiguity, it wasn't a question of whether it was clear.
QAt the end of the day, you fitted the wrong springs and unless you can show that you relied on him to supply the right ones, I don't see how I can give you the money that you want. If you don't remember what you asked, or what he asked and what you said, it is a little difficult for me to infer that the mistake was Mr Kessner's.
AYes, he asked me, the length of the springs, the amount of offset on the loop, that is straight across from pin to pin where they, attachment points, in the middle what was that loop. Those springs went on my trailer and I have got the video of them fitting so, everything appeared to be fine to me….[56]
[56] TM27 l21 to TM28 l33.
Mr Harradine was unable to give detailed evidence of the conversation which took place between him and Mr Kessner. It was for that reason that the magistrate took the view that Mr Harradine had not discharged the onus of proof. I agree with the magistrate’s conclusion.
On this review Mr Harradine again gave evidence of his conversation with Mr Kessner. He said that he telephoned Mr Kessner and said:
...Look, I've got a trailer manufactured by you, it's a 12 x 6, four-wheeler and I need springs for it, I've broken a rear spring and I need springs for it". Mr Kessner then said "Well, you have to measure it up", and I was surprised by that, because the trailer, I told him was 2006 trailer, it was only two years old. I then asked him "Well, I've got the VIN number, I can give you the VIN", He said "No, that's no good for me, you’ll have to measure it up". He gave me points to measure and I went away and measured those points as best I could with a tape measure and came back, the holidays were approaching and I very much wanted to get it organised and get away that holiday and take the scrap metal that I had collected over the months down to Adelaide. Mr Kessner asked me what size wheels it had, that the VIN number was no good and that I had to measure it up. I went and did the measurements that he asked and I believe he asked me to measure from the centre of the eye on each spring to the bolt that comes - a prominent bolt that comes through the springs. When I got those measurements I rang Mr Kessner back and he very quickly, like somebody that was late, a hungry man late for a roast dinner, took the measurements and was gone off the phone. I heard no more about that until - I rang Mr Kessner to make arrangements about the money...[57]
[57] T8 to 9.
The evidence which Mr Harradine gave on this review on that topic differed from his evidence before the magistrate. He told the magistrate that he had the information at his fingertips having already measured the trailer up after speaking to the other person.[58] He also told the magistrate:
...There may have been one (conversation) where he said go back and measure this and this. That part is vague. The precise questions he asked me are vague but I done the measurements, but what he didn't say what actually didn't happen is that there was any ambiguity about whether, what kind of suspension my trailer has...[59]
[58] TM28 l10.
[59] TM28 l13.
The measurement which Mr Harradine told me that Mr Kessner had requested (from the centre of the eye on each spring to the bolt that comes through the springs)[60] was different from the measurement which Mr Harradine described to the magistrate (the length of the springs, the amount of offset on the loop, that is straight across from pin to pin where they, attachment points, in the middle of what was that loop).[61]
[60] T9.
[61] TM28 l28.
In the video recording which he made of himself measuring the springs Mr Harradine is shown measuring the original left-hand rear rocker/roller spring which was still fitted to the trailer.[62] The recording shows Mr Harradine measuring in a straight line between the eye at the rocker end of the spring to the eye at the roller end of the spring. As he took the measurement Mr Harradine uttered the words "That's tight". What he meant by those words was not explained. Mr Harradine then measured the diameter of the bolt at the rocker end.
[62] Exhibit P7.
The measurement which Mr Harradine described in his evidence on this review (from each eye to the prominent bolt in about the centre of the spring) is the measurement shown in the diagram on the tax invoice.[63] Mr Harradine said that he did not receive that exhibit until the proceedings were underway. Mr Kessner said that the invoice had been faxed to Mr Harradine’s number which is shown on the invoice.
[63] Exhibit D2.
Mr Harradine was referred to those paragraphs of the Defence which deal with the telephone conversation. Paragraph 2 of the defence alleges that Mr Kessner asked Mr Harradine to give him a description of the springs. The Defence alleges that the way Mr Harradine described the suspension, coupled with the measurements that he gave Mr Kessner, described a rocker suspension spring.
The way that Mr Harradine described the suspension to Mr Kessner might have described a rocker spring, but the measurements could not have done that because the measurements on the rocker springs and the roller springs are the same. I reject the evidence of Mr Kessner that the measurements described a rocker spring.
In para 3 of the Defence it is alleged that Mr Kessner advised the plaintiff that he would send rocker suspension springs. As to that allegation Mr Harradine said "I did not describe it as any kind of the spring. I had no idea what its name was at the time, and that the so-called description that was given to Mr Kessner were measurements only. I gave the number of leaves in the spring, the width of the leaves".[64] He said that what Mr Kessner got from him was that it was 12 x 6 trailer, it had 14 inch wheels, and the number of leaves, the width of the leaves and the measurement from eye to the bolt and that was it.[65] Again Mr Harradine referred to "the measurement from eye to the bolt".
[64] T21 l20.
[65] T21 l37 to T22 l2.
Exhibit D2 is the tax invoice which Mr Kessner said that he faxed to Mr Harradine on 11 September 2010. As well as the price of the springs ($336) it actually referred to "rocker springs only” and included a fundamental diagram of a "rocker" spring with measurements from the eye at each end to the bolt that comes through the springs. The diagram of a spring with an eye at each end was in accordance with what Mr Harradine believed he required.
Mr Harradine said that he never received the tax invoice until he received it from the Port Augusta Magistrate's Court. However the invoice does contain Mr Harradine's telephone number to which Mr Kessner said that he transmitted the document. While it is unnecessary to proceed to a finding that Mr Harradine did receive the invoice, the content of the invoice contained information which supports the evidence of Mr Kessner that Mr Harradine had identified "rocker" suspension during their conversation.
Also in Exhibit P3, Mr Harradine's two e-mail messages dated 11 September 2010, Mr Harradine had himself referred to "2 x rocker springs”. Mr Harradine's evidence that there was never any reference to the kind of spring and that he was unaware of the name of the spring at the time is incorrect.
The tax invoice and the two e-mail messages corroborate the evidence of Mr Kessner that he and Mr Harradine had discussed a "rocker" assembly. I find that the term "rocker spring" had been used in the telephone discussion between Mr Harradine and Mr Kessner on 11 September 2010.
Significantly, what Mr Kessner did not get from Mr Harradine, on any version of the evidence as to the telephone conversation, was the specific fact that at one end the spring which Mr Harradine required had an oval about 5/8” x about 4”. At the time he ordered the spring Mr Harradine believed that the oval space at one end of the spring which was fitted to his trailer was an indication of damage. His belief was that the spring should have had a 5/8” eye at both ends.
The springs that Mr Kessner drew on the tax invoice and supplied were consistent with what Mr Harradine believed that he required at the time of the telephone conversation. If Mr Harradine had been asked to describe the spring that he required he would have described a rocker spring, because that would have been consistent with his erroneous belief.
While I do not accept the evidence of Mr Kessner in its entirety I find that the telephone discussion did contain references to "rocker springs". I accept the evidence of Mr Kessner that he told Mr Harradine that they used two types of suspensions and that he described what they looked like.[66] From a purely practical point of view Mr Kessner had to do that in order to ascertain what kind of spring Mr Harradine required.
[66] T15.
Mr Harradine said that there was no comment that he should not fit the springs until he was certain that they were correct and that such a comment would have been totally unacceptable because he was urgently preparing for his trip to Adelaide.[67] It would not have mattered if Mr Kessner had made the alleged statement about not fitting the springs until Mr Harradine was certain they were correct and returning the springs because Mr Harradine was under the incorrect impression that the springs which had been sent were the correct ones.
[67] T22.

Mr Harradine said that Mr Kessner did not alert him to the fact that there were two different kinds of springs. He said "As soon as you are alerted to it it’s patently obvious".[68] It follows from the findings which I have made that I reject that evidence.
[68] T26 l14.
The magistrate said he was not satisfied that everything Mr Kessner told him about his conversation with Mr Harradine was completely accurate. He said he did not believe that Mr Kessner could remember the conversation in the detail he appeared to at times and there are statements in the defence concerning the return of the springs and their suitability which the magistrate suspected may not have been made.[69] In general I agree with the findings of the magistrate. However the probabilities are that Mr Harradine and Mr Kessner had discussed the two types of springs and Mr Harradine had indicated that rocker springs were what he required.
[69] Reasons of magistrate para 5.
The decision of the magistrate did not turn upon an acceptance of Mr Kessner's evidence, but upon whether the plaintiff had established a case on his own evidence. I agree with the decision of the magistrate. Mr Harradine has not proved his case.
The Defendant’s argument that Mr Harradine should not have installed the incorrect springs
I agree with the magistrates finding that Mr Harradine should have realised that the springs that were supplied were different from the springs that were already on the trailer and that should have been apparent to him from a inspection of the springs.[70] Mr Harradine had both the original rear springs which were removed and the original front springs which remained on the trailer to compare with the springs which the defendant sent to him.
[70] Reasons of magistrate para 8.
I agree with the finding of the magistrate that Mr Harradine should not have installed obviously incorrect springs.[71]
[71] TM8 l4, TM15 l34.
The magistrate asked "How different was the replacement springs to the blue (original) spring" and Mr Harradine replied:
They look pretty much the same to me, the blue spring looked like it had opened, there is a bigger hole at the end of that blue spring and it looked like it had opened a bit.[72]
[72] TM5.
It was not until after the event that Mr Harradine learnt that the replacement springs broke because they did not have an oval shaped space at one end. He was surprised to learn that the springs needed the oval space and that the springs which had been supplied to him were the wrong springs.[73] He said: "I didn't realise there was going to be any problem at all. I didn't know they were the wrong springs. It was only after they broke and I saw they had broken in the same place that I started to ask around and I spoke to Mr Kessner some months later and he said "Of course they broke there was no give".[74]
[73] TM6 l34 to TM7 l6.
[74] TM12.
When he gave evidence at the review Mr Harradine said that he thought the loop on the original springs "was a result of wear over very rough corrugated roads".[75] He said that he looked at other trailers "which had the same problem with the springs. They looked to be the same but they too had open - from what I thought had opened up but they hadn't broken. So the springs that my trailer had, it turned out, which was unknown to me, that that loop was supposed to be there and it wasn't damaged, it's a space of about three to 4 inches".[76]
[75] T5 l36.
[76] T6 l6.
Mr Harradine was asked whether he compared the springs on the trailer with those that he received from the defendant and said "I was aware - when I got them they hadn't opened up and I thought that these were undamaged, used springs, that was my take on them, and on that point, the fact that they had a loop on an open area, it didn't occur to me that was intentional …".[77]
[77] T6 l17.
Mr Harradine was mistaken. There may not have been a need for Mr Harradine to fit new springs on the trailer at all. The original rocker/roller spring which is depicted in photographs (Exhibits P1 and P9) does not show any damage. Mr Harradine changed the springs because he mistook the loop at one end of the spring for damage. Mr Harradine thought that the loop which was designed to provide movement in the spring was inconsistent with his experience with other things such as tie rod ends and shock absorbers on cars.[78]
[78] T6 l35.
The evidence of Mr Harradine that "they (the replacement springs) had broken in the same place" cannot be correct because the photograph of the broken replacement spring shows a break through the actual leaf of the spring several inches from the eye whereas the complaint about the old spring was that because of battering of the spring caused by rough roads an oval space had opened up. There is no evidence that any old rocker/ roller spring had suffered a break through an actual leaf of the spring in the way that the new rocker springs did.
If, contrary to my finding, there was a breach of either a condition as to fitness for purpose in the sale contract or a breach of duty a question would arise as to whether the plaintiff's loss was caused by the defendant's breach or by his own conduct in fitting an obviously incorrect spring. If it was necessary to resolve that question I would agree with the finding of the magistrate that Mr Harradine did not ensure that he installed the correct type springs.[79] Mr Harradine's claim should be dismissed for that reason also.
[79] Reasons para 9.
Conclusions
The five inconsistencies identified by Blue J do give rise to reasons to have doubts about the reliability of Mr Kessner; however they do not provide reason to discount his evidence in its entirety.
I agree with the magistrate that if Mr Harradine had asked the right questions of Mr Kessner he would have received accurate information from him.[80] There was no reason for Mr Kessner to supply inaccurate information to Mr Harradine or to supply springs which were inappropriate. Whatever Mr Kessner did had to be responsive to the information provided by Mr Harradine.
[80] Reasons of magistrate para 6.
The evidence of Mr Harradine does not establish what questions he asked or what answers he received.
I accept the evidence of Mr Kessner that when Mr Harradine took the old springs off he would have seen that they were totally different from those which had been sent to him by the defendant.
The magistrate concluded that the plaintiff had not satisfied him on the balance of probabilities that the failure to obtain the correct springs was the fault of Kessner trailers.[81] His Honour was not satisfied that the supply of the incorrect springs was the fault of the defendant.[82] Each of those conclusions of the magistrate is borne out by the material now before the court on this review.
[81] Reasons of magistrate para 8.
[82] Reasons of magistrate para 11.
Mr Harradine incorrectly believed that he required a spring which had a small eye at each end but did not have an open 4” oval at one of the ends. He thought that the 4 inch oval was damage to the spring rather than a design feature. If he had been asked to describe the spring that he thought that he required he would have described a rocker spring.
I accept the evidence of Mr Kessner that the term rocker spring was used during the telephone conversation. Mr Kessner needed to ascertain which of the two types of springs Mr Harradine required. In order to do that Mr Kessner must have discussed the characteristics of both rocker and roller springs and it can be inferred that Mr Harradine chose a rocker spring. That would have been consistent with Mr Harradine's belief as to what he required.
The evidence adduced by Mr Harradine does not establish his claim. The issues raised in the Defence and the issue of credibility of the witnesses including the suggested inconsistencies in the evidence of Mr Kessner are therefore inconsequential. The evidence of Mr Harradine did not establish a prima-facie case for holding the defendant liable.
The evidence does not establish any breach of duty, misrepresentation or breach of a condition in the contract.
There will be and order that the judgment of the magistrate be affirmed.
The parties have liberty to apply.