Hillier v Lister - [2012] SASC 204

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
HILLIER v LISTER & ORS
[2012] SASC 204
Judgment of The Honourable Justice Stanley
6 November 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE
Appeal against findings of a magistrate - magistrate held valid contract of sale for a motor vehicle had been entered into by the appellant and first respondent and that the respondent could give good title to a purchaser for value - appellant appealed on grounds that the magistrate erred in finding that the contract existed between the parties - appellant challenged the credit findings that had been made by the magistrate
Held: Appeal dismissed - magistrate correctly assessed all the evidence before the court and gave sufficient weight and consideration to all the evidence - no errors of fact or law to justify appellate intervention - there was a valid contract of sale between the appellant and first respondent, as a result, the appellant sold the vehicle to tthe first respondent.
Justices Act 1921 (SA), referred to.
Taylor v Hayes (1990) 53 SASR 282; Abalos v Australian Postal Commission (1990) 171 CLR 167, discussed.

HILLIER v LISTER & ORS
[2012] SASC 204
STANLEY J:
Magistrates Appeal

This is an appeal from a judgment of the Magistrates Court. The Court made an order, in the nature of a declaration, that Adam Lister, the first respondent, was the lawful owner of a Black Holden Commodore utility vehicle registration S810AEP (the Vehicle) and could give good title to a purchaser for value.
Although there are a number of used car businesses listed as respondents, the matter primarily concerns the dispute between the appellant, Allan Hillier, and the first respondent as to whether there was an agreement between them for the sale of the Vehicle.

Background

The matter began as an interpleader in the Magistrates Court.
The appellant alleged the first respondent stole the Vehicle from him in May 2011. As a result, the police impounded some cars including the Vehicle.
The appellant alleges that in July 2011, the first respondent traded in the Vehicle with Hillmore Pty Ltd trading as Gurney’s Cheaper Car Centre, the second respondent. The first respondent asserts that he lawfully purchased the Vehicle from the appellant.
The second respondent then on-sold the Vehicle to Adtrans Pty Ltd trading as Graham Cornes Used Cars, the fourth respondent.
The Magistrate found that on 25 May 2011, the appellant sold the Vehicle to the first respondent, and that the first respondent was the lawful owner of the vehicle and could give good title to a purchaser for value.
A carbon copy of an invoice receipt was tendered at trial (the Invoice). According to the first respondent, the Invoice evidences the sales agreement between him and the appellant. The receipt is dated 25 May 2011 and is signed by the appellant.
The Magistrate had to decide the authenticity of the Invoice, and determine whether the first respondent was the lawful owner of the Vehicle.
The appellant denied the authenticity of the Invoice, claiming that it was in fact in relation to the sale of a chiminea for the sum of $200. The appellant contends that the first respondent altered the Invoice so the sale amount read $1,200 and that it referred to the sale of the Vehicle. The learned Magistrate addressed this matter as follows:
Mr Lister also relies upon a invoice book receipt - Exhibit R1- that he says records the sales agreement. I note Mr Hillier says that document is not in the same form signed by him on the relevant date, 25 May 2011. Mr Hillier’s evidence is that the only information contained on the invoice statement when he signed it was a receipt for the sum $200 – which he says related to the sale of a chiminea – and there was certainly nothing inserted then about a motor vehicle. However it is Mr Lister’s evidence – supported by Mr Uzzell’s evidence and Ms McDonald’s evidence - that the document is in the same form as signed by Mr Hillier - apart from possibly an alteration made subsequently to identify that additional payments were made to show the amounts paid by Mr Lister totalled $1,200 rather than the original $200. The document refers to sale of a motor vehicle.
I do not regard Mr Lister’s explanation of altering the document to record the additional payments as sinister. I accept Mr Lister’s evidence that it was altered to show that within a matter of days of him paying the initial $200 two additional payments of $500 each were made.
The Magistrate accepted the evidence of the first respondent and two witnesses called by the first respondent regarding the events of 25 May 2011. He found the appellant and first respondent entered an agreement for the sale of the Vehicle.

Evidence at Trial

At trial, the appellant gave evidence that he had been storing the Vehicle at the first respondent’s house. He stated that the first respondent had obtained his signature on the Invoice, at which point the appellant alleges it was a blank document, but then drawn up the rest of the document subsequent to obtaining his signature.
The first respondent denies that this took place and asserts that the Invoice was drawn up and signed by the appellant on 25 May 2011. The evidence of the two witnesses called by the first respondent, Ms MacDonald and Mr Uzzell, supported this assertion.
The evidence of Mr Uzzell was that the appellant and the first respondent had conversations relating to the sale of the Vehicle. He stated that he observed the appellant sign a receipt and observed the first respondent pay money to the appellant. He further stated that the signed receipt provided that payments were to be made fortnightly. This is consistent with the details contained on the Invoice and with the evidence of the first respondent.
The evidence of Ms MacDonald was that the appellant had agreed to sell the Vehicle to the first respondent for $7,000 and that she observed the signing a receipt, which was presumably the Invoice. The appellant in his cross-examination of Ms MacDonald put to her that the sale agreement was for the sale of a chiminea. This was denied. Ms MacDonald stated that she observed the first respondent write on the Invoice and then the appellant write on the Invoice. This evidence is consistent with the assertions of the first respondent.
There was an issue with the amount that was paid to the appellant by the first respondent. The Invoice indicates that $1200 was paid on 25 May 2011, however, the first respondent gave evidence that only $200 was paid on 25 May 2011 and two instalments of $500 was paid later.
The Magistrate was aware of this inconsistency. He found that the first respondent had paid $200 only on 25 May 2011, and shortly thereafter two further payments of $500 each. The first respondent had subsequently altered the invoice to reflect the total payment made of $1200. It was held that the

Invoice had been altered, but the alteration was not sinister.

The Appeal

Crucial to the outcome of the trial in the court below was the magistrate’s conclusion that on 25 May 2011 the appellant agreed to sell the Vehicle to the first respondent for $7,000. Fundamentally, this was a credit finding, depending on his assessment of the witnesses to the transaction, namely, the appellant, the first respondent, Ms MacDonald and Mr Uzzell.
The approach to be taken to the determination of a magistrates appeal is explained in Taylor v Hayes.[1] Although the appeal in that case was heard under the Justices Act 1921 (SA) (repealed), the approach adopted by the Court has been subsequently followed on numerous occasions in relation to magistrates appeals. In Taylor v Hayes Perry J said:[2]
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
[1] (1990) 53 SASR 282 at 289 – 292.
[2] (1990) 53 SASR 282 at 291.
In Taylor v Hayes[3] Perry J referred to the requirement that in hearing and determining a magistrates appeal, the Court give due weight to the advantage held by the magistrate in seeing and hearing the witnesses. This principle was explained by the High Court in Abalos v Australian Postal Commission.[4] McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed, said:[5]
In S.S. Hontestroom v. S.S. Sagaporack Lord Sumner pointed out, at p 47, that:
“not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone."
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion": Watt or Thomas v. Thomas at p 488.
…
As I pointed out in Jones v. Hyde at p 351;at p 27, when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked.
[3] (1990) 53 SASR 282.
[4] (1990) 171 CLR 167.
[5] (1990) 171 CLR 167 at 178 - 179.
As at trial, the appellant appeared on his own behalf on the hearing of his appeal. He addressed the grounds of appeal in a somewhat discursive fashion. The notice of appeal sets out a number of grounds of appeal. In short however the appellant’s primary complaint concerns the learned Magistrate’s credit findings. He makes a variety of complaints. It is convenient to deal compendiously with a number of the grounds which relate in one way or another to the appellant’s attack on the credit findings.
I have reviewed the evidence given by the first respondent, and by Mr Uzzell and Ms MacDonald. Their evidence was that the appellant agreed to sell the vehicle to the first respondent for $7,000. The first respondent paid a deposit of $200. The appellant gave evidence that this did not occur. On appeal, he submitted that the first respondent and his witnesses had lied. He contended that the learned magistrate erred in not rejecting their evidence on that basis. He submitted that by reason of their relationship with the first respondent, Ms MacDonald and Mr Uzzell had a motive for lying. It was open for the Magistrate to accept their evidence. It is not sufficient to succeed on appeal to simply allege that a particular witness has lied; it must be shown that the Magistrate erred in accepting the evidence. The appellant merely submits that as the witness is the partner of the first respondent or is his friend, the witness would have lied for him. This is an insufficient basis for an appeal court to overturn a finding of fact. The Magistrate had the advantage of seeing and hearing the witnesses. It was necessary for the appellant to demonstrate, by reference to some objective fact, that the magistrate’s reliance upon the evidence of the witness was inherently implausible or otherwise unreliable. He could not do this. The mere fact of the witnesses’ close relationship with the first respondent is not a proper basis for overturning the finding of fact made by the court below. Having reviewed their evidence I have no reason not to accept the likelihood of their version of events.
The Magistrate also heard evidence about the transaction of 25 May 2011 from the appellant himself. He not only accepted the evidence of the first respondent and the witnesses he called, he found aspects of the appellant’s evidence unpersuasive. He rejected his evidence as to the locality of the Vehicle at the time the sale was alleged to have occurred. On appeal, the appellant did not address this.
The Magistrate held that a valid contract of sale had been entered into by both parties and that the first respondent had legal title over the Vehicle. This was a finding that was open for the Magistrate to make on the evidence. While it is open to this Court on appeal to overturn that finding if it is satisfied, upon an independent review of the evidence, that a different finding should be made, no such basis to do so has been made out by the appellant in circumstances where this Court is in a position of permanent disadvantage as against the magistrate in forming conclusions based on the credit of the witnesses seen and heard by the magistrate.
The appellant further complains that he only saw the Invoice on the last day of trial, and that the deposit amount was altered as indicated by the different coloured pen to match the first respondent’s affidavit. The Invoice was actually tendered on the first day of trial. It is difficult to understand why he did not see the Invoice until the last day of trial. In any event, this was the second day of the trial.
As to the alteration of the Invoice, the Magistrate found that the Invoice had been altered, but not in a sinister manner. The finding that the first respondent altered the invoice subsequently may be a finding that goes beyond the direct evidence before the magistrate.
It appears that the first respondent was aware of the inconsistency between the fact that he claims to have made a $200 down payment, and the fact that the Invoice records a $1,200 down payment. He explained the discrepancy on the basis that two further payments of $500 were made by him within a matter of days. The magistrate appears to have inferred that, as a result, the first respondent altered the copy of the invoice to reflect these further payments. I cannot find any direct evidence of the first respondent to this effect. This was an inference nonetheless open on the evidence.
Despite the question regarding the amount stated on the Invoice, I am satisfied, like the magistrate, that the Invoice evidences a valid contract of sale. Regardless of the alteration, a valid contract of sale was made.
The appellant asserted that the Invoice related to the sale of the chiminea, and not the car. Again, this comes down to a credit finding by the Magistrate. The first respondent actually denies buying the chiminea from the appellant. As previously set out, the appellant alleges that he signed a blank piece of paper and the first respondent drew the details of the sale of the Vehicle around the signature. On the evidence, it was open for the Magistrate to find against the appellant on this. No basis has been established to interfere with this finding.
The appellant further complained that the Magistrate was biased in moving the trial date forward.
The Magistrate did not actually move the trial date forward, but rather rejected the appellant’s application for an adjournment. The Magistrate refused an adjournment because a number of transactions depended on the outcome of the principal issue as to whether the appellant sold the Vehicle to the first respondent, namely, the impounding of various cars owned by the car dealers, who are the other respondents in the matter. This was an appropriate reason to deny the adjournment.
The appellant asserts that the first respondent produced an affidavit on the last day of trial that was “full of lies”. It is apparent the affidavit, which was filed in court, was not tendered in evidence. Accordingly, whatever its contents, it could not have affected the outcome of the trial.

Conclusion

This matter comes down to an issue of credit. The Magistrate had the advantage of seeing and hearing the various witnesses at trial. I am not satisfied he has misused that advantage. On the contrary, I am satisfied he has not misused that advantage.
The Magistrate has not made any error of law, nor has it been demonstrated that he erred in any finding of fact he made. All findings of fact made were open on the evidence, and the findings of fact support the conclusion reached, namely, that the appellant sold the Vehicle to the first respondent and the first respondent was the lawful owner of the Vehicle and could give good title to a purchaser for value. Nothing the appellant has put on appeal persuades me that the conclusion reached by the learned magistrate was wrong.
I dismiss the appeal.