Houghton Tractor and Machinery Sales Pty Ltd v Muffet Pty Ltd

[2001] WASCA 209

HOUGHTON TRACTOR AND MACHINERY SALES PTY LTD -v- MUFFET PTY LTD [2001] WASCA 209

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 209
Published:	20/07/2001
Case No:	CIV:1621/2001	Heard:	18 JUNE 2001
Coram:	KENNEDY J WALLWORK J PIDGEON AUJ	Delivered:	18/06/01
No of pages:	5	Judgment Part:	1 of 1
Result:	Leave to appeal refused
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Parties:	HOUGHTON TRACTOR AND MACHINERY SALES PTY LTD MUFFET PTY LTD
Catchwords:	Local Court Appeals Appeal as of right to District Court Leave required to appeal to Supreme Court Grant of leave lies at discretion of the Court No substantial injustice in leaving decision unreversed Decision not attended with sufficient doubt to justify leave
Legislation:	Nil
Case References:	Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Wingluck Foods v Lay Choo Lin [1989] WAR 358 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HOUGHTON TRACTOR AND MACHINERY SALES PTY LTD -v- MUFFET PTY LTD [2001] WASCA 209 CORAM : KENNEDY J

WALLWORK J
PIDGEON AUJ

HEARD : 18 JUNE 2001 DELIVERED : 18 JUNE 2001 PUBLISHED : 20 JULY 2001 FILE NO/S : CIV 1621 of 2001 BETWEEN : HOUGHTON TRACTOR AND MACHINERY SALES PTY LTD

Applicant

AND

MUFFET PTY LTD
Respondent

Catchwords:

Local Court - Appeals - Appeal as of right to District Court - Leave required to appeal to Supreme Court - Grant of leave lies at discretion of the Court - No substantial injustice in leaving decision unreversed - Decision not attended with sufficient doubt to justify leave

Legislation:

Nil

(Page 2)

Result:

Leave to appeal refused

Representation:

Counsel:

Applicant : Ms K A Vernon
Respondent : Mr M H Zilko

Solicitors:

Applicant : Metaxas & Vernon
Respondent : Butcher Paull & Calder

Case(s) referred to in judgment(s):

Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Wingluck Foods v Lay Choo Lin [1989] WAR 358

Case(s) also cited:

Nil

(Page 3)

1 KENNEDY J: Generally for the reasons to be published by Pidgeon AUJ, I joined in the order refusing the applicant leave to appeal against the decision of the District Court Commissioner dismissing an appeal against a judgment of the Local Court. I was not persuaded that there would be any substantial injustice in leaving the decision unreversed, that decision not being attended with sufficient doubt to justify a further appeal.

2 WALLWORK J: I agree with the reasons for judgment of Pidgeon AUJ. I do not wish to add anything to those reasons.

3 PIDGEON AUJ : These are the reasons for refusing the applicant leave to appeal to the Full Court from a decision given by Commissioner Greaves hearing an appeal from the Local Court. In the Local Court his Worship I Brown SM heard a claim for misrepresentation. It was admitted that there was a misrepresentation and consequently a breach of contract. The only issue before the learned Magistrate was that of quantum. His Worship held that the plaintiff before him was entitled to judgment for the difference between the price he paid for the machine and an amount he later received at an auction conducted in December 1999 less some other adjustments. The amount for which his Worship entered judgment was $8,168.30.

4 In support of its claim the respondent called the evidence of a Mr Bell as to what was the value of the machine in December 1998.

5 Mr Bell's evidence was objected to at trial on the ground that the evidence contravened the principles set out in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 on the ground that Mr Bell either was or would be basing his valuation on hearsay evidence as he would not have direct knowledge of the comparative sales leading to the valuation.

6 The learned Magistrate rejected this submission but admitted this evidence on the basis that he was satisfied that Mr Bell produced a valuation which was not derived from sales of items by other auctioneers but from sales which he had personally conducted by way of the auction process and he gave evidence that he had auctioned similar items in recent years. His Worship considered that this distinguished the case from Pownall v Conlan Management Pty Ltd. The defendant appealed to the District Court on the ground that the claim should have been dismissed as there was no admissible evidence as to the value of the machine. The

(Page 4)

appeal was heard by Commissioner Greaves who dismissed it. He dismissed it for the following reasons:

"It seems to me that the present case is quite different from Pownall's case. Mr Bell gave opinion evidence of the likely value which the bobcat could be expected to achieve at auction and not factual evidence of the transactions upon which that evidence was based.

Ipp J referred to the judgment of Megarry J in English Exporters (London) Ltd v Eldonwall Ltd [1973] 1 Ch 415 where his Lordship said at 420:


'As an expert witness, the valuer is entitled to express his opinion about matters within his field of competence. In building up his opinions about values, he will not [sic] doubt have learned from transactions in which he has himself been engaged, and of which he could give first-hand evidence.'

It seems to me that that is exactly what Mr Bell was doing. The evidence of Mr Bell was that he could give first hand evidence of a number of earlier transactions. In my opinion, Pownall's case is no authority for the proposition that in the circumstances of the present case, the opinion evidence of Mr Bell was not admissible in the absence of such factual evidence."

7 The defendant in the Local Court action is seeking leave to appeal to this Court on grounds similar to those considered by Commissioner Greaves. In my view, Pownall's case had no application to the facts of this case for the reasons stated by both the learned Magistrate and his Honour. The auctioneer was relying on his own observations and own knowledge obtained from sales he conducted.

8 It was submitted to this Court that that evidence was not admissible as it would be necessary to produce sales notes or documents of that type to prove the actual comparative sales. This submission is I consider confusing the rule against hearsay with the best evidence rule. It might be said that this evidence is not the best evidence within the rule laid down by Lord Hardwicke when he said that, "Judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of a case will allow, (Omychund v Barker 1745 1 Atk 21 at 49; 26 ER 15 at 33)". The law so expressed would no longer be the law in Australia (see Cross on Evidence, 6th Aust Ed, p 82 et seq).

(Page 5)

9 When regard is had to the amount in issue, care would need to be taken in granting a further appeal. The Parliament has given one appeal as of right, the further appeal needing leave. The principles on which leave is granted have been outlined in Wingluck Foods v Lay Choo Lin [1989] WAR 358. It has not been shown that the decision was wrong or attended with sufficient doubt to justify the granting of leave. For my part, I would say that the learned Magistrate was correct.