Hunter Constructions Pty Ltd v Tubeway Scaffolding Pty Ltd
[2004] VSC 191
•3 June 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4095 of 2003
| HUNTER CONSTRUCTIONS PTY LTD (ACN 055 772 800) | Appellant |
| V | |
| TUBEWAY SCAFFOLDING PTY LTD (ACN 007 076 940) | Respondent |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2004 | |
DATE OF JUDGMENT: | 3 June 2004 | |
CASE MAY BE CITED AS: | Hunter Constructions v Tubeway Scaffolding | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 191 | |
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Appeal – Magistrates’ Court – contract for provision of scaffolding – bailment – certain items of scaffolding lost - whether evidence sufficient for a determination of when the bailment ended and the scaffolding disappeared – whether prices charged for replacement of lost items in accordance with contract – findings held to be open to the magistrate on the evidence – appeal dismissed.
Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1
S v Crimes Compensation Tribunal [1998] 1 VR 83
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M O’Connor | Noble Lawyers |
| For the Respondent | Mr D McDonald | John Burgess & Co |
HER HONOUR:
Introduction
This is an appeal pursuant to section 109 of the Magistrates’ Court Act 1989 (“the Magistrates’ Court Act”), which provides that a party to a civil proceeding in the Magistrates’ Court may appeal to this Court, on a question of law, from a final order of the Magistrates’ Court in that proceeding. The final order the subject of the appeal was made on 12 December 2002 by the Magistrates’ Court at Dandenong, constituted by Ms Fleming, Magistrate, whereby judgment was ordered on the claim of the respondent (“Tubeway”) for the replacement price of scaffolding not returned at the end of a bailment and the appellant (“Hunter”) was ordered to pay to Tubeway $5,471.24 on the claim plus interest of $460 and costs of $2,799.60.
On 25 November 2003 a Master of the Court ordered that four questions of law were shown to be raised by the appeal, namely:
(a)Was there any evidence as to when the bailment of the scaffolding ended?
(b)Was there any evidence on which the Court could hold (inferentially) that the scaffolding had not disappeared between the end of the bailment and the time the scaffolding was checked on the respondent’s premises?
(c)On the whole of the evidence, was it open to the Magistrate to find that the scaffolding disappeared during the bailment?
(d)Was there any evidence on which the Court could find that the prices charged for the non-return were the then current selling prices in accordance with paragraph 17 of the terms and conditions set out in exhibit “IC-5”?
In Spurling v Development Underwriting (Vic) Pty Ltd [1] Stephen J said:
In the case of decisions of magistrates the position in Victoria is well established by a line of decisions culminating in Taylor v Armour & Co. Pty. Ltd., [1962] VR 346, in which the Full Court of this State held that in the case of any question of fact the Court should treat the matter as an appeal from the verdict of a jury and should not make up its own mind upon the evidence but rather confine itself to seeing whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come. In saying this the Full Court stated that it was following the view of Herring, CJ, in Young v Paddle Bros. Pty. Ltd., [1956] VLR 38; [1956] ALR 301. The Chief Justice, in that case, adopted as the test whether "on any reasonable view of the evidence that decision can be supported"; a party aggrieved can thus only succeed if a decision contrary to the view of the magistrate is "the only possible decision that the evidence on any reasonable view can support" (see at VLR p. 41).
[1][1973] VR 1 at 11.
In S v Crimes Compensation Tribunal[2] Phillips JA said, speaking of passages similar to that cited above from Spurling:
The word “reasonably” is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word “reasonably” lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to a question of law, simply because that finding is regarded as “unreasonable”. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.
[2][1998] 1 VR 83 at 91
Those two authorities set out the basis on which the Master’s questions can properly be regarded as questions of law and thus as open on this appeal under section 109 of the Magistrates’ Court Act.
Hunter hired certain items of scaffolding from Tubeway for use for some three months on a site in Whitehorse Road, North Balwyn, where Hunter was building a block of five units. The scaffolding was delivered over three occasions. The hiring contract, prepared on what appeared to be the standard form of Tubeway, included the following condition:
(17) Return of goods
At the termination of hire all Goods shall be returned to the Company in good condition excepting only fair wear and tear. All Goods shall be deemed in good condition unless the Company notifies the Hirer to the contrary within twenty-four (24) hours of delivery of the Goods. The Hirer shall on demand pay in respect of any Goods damaged or not so returned the then-current selling price for the Goods. Until such sum is paid hire charges shall continue to accrue together with all costs and expenses incurred by the Company as a result of such shortages or losses. The Hirer’s responsibility for the preservation and safe-keeping of the Goods shall not be determined until all the goods are physically handed over to the Company by the Hirer.
When the scaffolding was no longer required on the site it was disassembled by scaffolders employed by Tubeway and collected, over four separate occasions between 23 October and 26 November 2001, by drivers employed by Tubeway. When the scaffolding was checked on return to Tubeway’s depot, it transpired that certain items were missing. Tubeway issued proceedings in the Magistrates’ Court to recover the sum of $5,613.22 as the replacement cost of those items in terms of condition 17 of the hiring contract. The Magistrate found for Tubeway as appears from [1] above.
The questions of law
Question (a)
The parties are in agreement that, on the evidence, the bailment of the scaffolding ended, in respect of each item, when that item was collected by a driver employed by Tubeway.
Question (b)
The magistrate did not find that the scaffolding did not disappear between the end of the bailment and the time when it was checked on the premises of Tubeway. She did find, and was required to find only on the balance of probabilities, that it disappeared during the bailment.
Although the “return sheets” on which the items of scaffolding were checked on return to Tubeway’s yard contained a column for “site count” and another for “depot count”, the evidence of Mr Burt, a director of Tubeway, was that it was no longer the practice of Tubeway to count the items of scaffolding being returned before they left the site where they had been used. They were not counted until they arrived at the depot. There is no evidence as to the names of the scaffolders or of the drivers, the vehicles on which the scaffolding was transported, the time taken between the building site and the depot or any other aspect of the transport of the scaffolding from the site to the depot. There is thus no evidence from which the Magistrate could have found that the missing items disappeared or did not disappear after leaving the site at the end of the bailment.
Question (c)
The evidence of Mr Crnogrnac, a director of Hunter, was that the site was enclosed by a fence, with only one gate, which was padlocked, and that he was the only person who would open up the site in the morning and lock it at the end of the day. No-one else was authorised to supervise the site. There were no break-ins while the scaffolding was on site and if there had been he would have called the police. He agreed that tradesmen’s vehicles were from time to time parked on the site.
The three delivery dockets for the delivery of the scaffolding to the site were before the Court. Mr Crnogrnac said that two were signed by him but one was not. That fact was relied on by the Magistrate as an indication that it was not possible for Mr Crnogrnac to supervise everything all the time, so that the scaffolding could have disappeared without his knowledge during the time of the bailment. That finding was open to her on the evidence.
Question (d)
The transcript shows that Mr Burt produced a price list which was not tendered, presumably by inadvertence. His evidence was that that was the current list of prices at which Tubeway purchased scaffolding, which was about five per cent higher than the prices shown on the list of the missing scaffolding which was before the Magistrate. It was open to the Magistrate to accept that evidence and find that the prices claimed by Tubeway were five per cent less than the current selling price.
Conclusion
The answers to the questions are accordingly:
(a)Yes
(b)No
(c)Yes
(d)On the evidence, it was open to the Magistrate to find that the prices claimed were five per cent less than the current selling price.
The appeal will be dismissed. Counsel may wish to make submissions as to costs.
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