Hussain v Ngep
[2015] ACTSC 71
•1 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hussain & Anor v Ngep & Anor |
Citation: | [2015] ACTSC 71 |
Hearing Dates: | 11, 23 March 2015 |
DecisionDate: | 1 April 2015 |
Before: | Mossop M |
Decision: | The application dated 24 November 2014 is dismissed with costs. |
Category: | Principal Judgment |
Catchwords: | APPEAL – application for extension of time in which to appeal from decision of Magistrates Court – whether there is a power under the Court Procedure Rules 2006 (ACT) r 5103 to grant an extension of time to appeal pursuant to the Magistrates Court Act 1930 (ACT) s 274 – where inadequate explanation for delay – where poor prospects of success on an appeal – application dismissed |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 6, r 5103 Legislation Act 2001 (ACT) s 151C Magistrates Court Act 1930 (ACT) s 274 |
Cases Cited: | Clune v Watson [1882] Tarl 75 Director of Public Prosecutions (ACT) v Martin (2014) 9 ACTLR 1 Effem Foods Pty Limited v Lake Cumbeline Pty Limited & Ors (1999) 161 ALR 599 |
Parties: | Mohammad Hussain (First Applicant) M.M. International (Australia) Pty Ltd ACN 088 104 170 (Second Applicant) Sok Kheng Ngep (First Respondent) Angkor What Pty Ltd (Second Respondent) |
Representation: | Counsel: Self-represented (Applicants) Mr J Moffett (Respondents) |
| Solicitors: Self-represented (Applicants) A Backhouse & Associates (Respondents) | |
File Number: | SCA 103 of 2014 |
This is an application for an extension of time in which to appeal from a decision of a magistrate given on 7 October 2014. The application for leave to appeal was filed on 24 November 2014.
The proceedings below related to a claim by the respondents for payment pursuant to an agreement for the sale of a vehicle that was operated as a taxi. The respondents were successful in the Magistrates Court, obtaining a judgment of $18,034.27. That comprised an amount representing unpaid instalments due under the agreement for the sale of the vehicle plus interest.
The application was listed for hearing before me on 11 March 2015. Mr Hussain appeared on his own behalf and by leave on behalf of the second applicant. He was assisted by his wife, Mrs Bilkis, who is also a director of the second applicant. Mr Moffett of counsel appeared for the respondents.
On that date Mr Hussain applied for an adjournment on a variety of grounds. I refused that adjournment for reasons which I gave at the time. However, because Mr Hussain was unrepresented and complaining of ill health, I heard the respondent’s submissions first. Counsel for the respondents commenced but did not conclude his submissions. Mr Hussain appeared to me to be quite well during the balance of the hearing although at the conclusion of the hearing I gave directions giving Mr Hussain the opportunity to file written submissions.
Following the hearing Mr Hussain served an affidavit dated 18 March 2015.
The hearing then resumed on 23 March 2015. Mr Hussain made a further application for an adjournment. I refused that application for reasons which I gave at the time. The affidavit of 18 March 2015 was provided by Mr Hussain and I did not admit it into evidence but treated it as his written submissions. Some annexures to the affidavit were tendered separately. Counsel for the respondents then completed his submissions and Mr Hussain was given the opportunity to either make his submissions after the lunch adjournment or to present them in further written form. He opted for the latter course and I directed that those submissions be filed and served by 30 March 2015 (later amended to 12 noon on 31 March 2015) and that the respondents have liberty to file any submissions in reply. Written submissions were in fact filed by a solicitor acting for Mr Hussain addressing the application for an extension of time in which to appeal as well as raising for the first time whether or not an extension of time in which to appeal was, in fact, required.
In these reasons I will refer to the parties as follows:
(a)First applicant – Mr Hussain.
(b)Second applicant – MM International.
(c)First respondent – Mr Ngep.
(d)Second Respondent – Angkor What.
Was the appeal lodged within time?
In written submissions filed on 31 March 2015 the solicitor for Mr Hussain submitted that the applicants had in fact lodged an appeal within time and hence there was no requirement for any extension of time. He submitted that the court should simply hear the appeal.
The decision of the magistrate was made on 7 October 2014. The Court Procedure Rules 2006 (ACT) (Rules) required that such an appeal be lodged within 28 days of the decision. Therefore, the applicants’ appeal needed to be lodged on or before 4 November 2014. The applicants submitted that the appeal was in fact lodged with the court on Monday, 3 November 2014. The submission referred to the affidavit of Mr Hussain of 18 March 2015 which I had not admitted into evidence. The evidence available in support of that submission is the evidence in Mr Hussain’s affidavit of 24 November 2014 in which he said:
I asked several times to the Magistrates Court counter about the delay in receiving the judgment notice and the counter staff informed me it was returned back to the respondents solicitor as their submitted submission was not correct.
Mr Hussain’s solicitor also sought to tender an extract from Mr Hussain’s diary for 3 November 2014 which makes a reference to “[indecipherable] Supreme Court appeal (today) Lodgement counter Magistrates Court”. I will admit that document as Exhibit A8 although in the absence of any explanation the weight that may be given to it is limited.
Division 6.3.3 of the Rules provides various powers to a registrar to reject documents which are filed in the registry. Rule 6126 determines the date upon which a document is taken to be filed in the registry. Where a document is rejected by the registrar because of non-compliance with the rules (r 6140) or because it is considered to be an abuse of process (r 6142) but is subsequently accepted then the document is taken to have been filed in court on the day it would have been filed if the registrar had not rejected the document (r 6145(4)). Thus, it is possible that if the applicants had attempted to file an appeal within time but a registrar had rejected the applicants’ appeal because the document did not comply with the Rules, and then the applicants had subsequently filed an appeal which was accepted, the appeal would be taken to have been filed within time.
The evidence in Mr Hussain’s affidavit and in his diary is not sufficient to demonstrate that the registrar rejected under division 6.3.3 a document which had been filed by the applicants. Because of the assertions made in the applicants’ written submissions, I also caused a search to be made of the court files kept in relation to these proceedings. There was no evidence on those files that an appeal had been lodged within time but rejected by the registrar under division 6.3.3.
For these reasons I do not accept the submission that the appeal was lodged within time.
What power is there to grant an extension of the time in which to file an appeal?
The proposed appeal would be an appeal pursuant to s 274(2) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). Rule 5051(1) identifies that part 5.3 of the Rules applies to an appeal from the Magistrates Court in a case like this: see table 5051 item 6. That part applies subject to any territory law applying to the appeal: r 5051(2).
The respondents submitted that, upon its proper interpretation, r 5103 prevents the grant of an extension of time in which to file an appeal in a case such as the present. Rule 5103 provides:
5103Appeals to Supreme Court—time for filing notice of appeal
The notice of appeal must be filed in the Supreme Court—
(a)not later than the time provided by the relevant law; or
(b)not later than any further time the Supreme Court allows; or
(c)if no time is provided by the relevant law and leave to appeal has been given—
(i)not later than 7 days after the day leave to appeal is given, or not later than any further time allowed by the Supreme Court on application filed in the court before the end of the 7-day period; or
(ii)if the Supreme Court sets a time for the filing when giving leave to appeal—not later than the time set, or not later than any further time allowed by the Supreme Court on application filed in the court before the end of the time set; or
Note Pt 6.2 (Applications in proceedings) applies to an application for further time.
(d)if no time is provided by the relevant law and leave to appeal under division 5.3.2 (Appeals to Supreme Court—leave to appeal) is not necessary—not later than 28 days after the day the order appealed from was made, or not later than any further time the Supreme Court allows on application filed in the court before the end of the 28-day period.
Note Div 5.3.3 (Appeals to Supreme Court—leave to appeal out of time) applies to an application for further time.
Rule 5050 defines, for the purposes of part 5.3 of the Rules, the term “relevant law” as, “in relation to an appeal, means the law under which the appeal is brought.” Thus, for the purposes of this case the “relevant law” for the purposes of r 5103 is the Magistrates Court Act. The Magistrates Court Act does not prescribe the time in which an appeal must be brought. Section 273(1) of the Magistrates Court Act gives jurisdiction to the Court to hear appeals subject to the exceptions and conditions in part 4.5 of that Act. However, that subsection does not affect the operation of any other law that provides for the appellate jurisdiction of the Supreme Court: s 273(2). Therefore, the relevant law does not define the time in which an appeal must be brought.
In relation to how r 5103 may apply in the present case, paragraph (a) does not apply because no time is provided by the relevant law.
Paragraph (b) may or may not be relevant depending upon whether or not it can apply only where paragraph (a) applies, or can also apply where paragraphs (c) or (d) apply. I will return to this point below.
Paragraph (c) would only apply where leave to appeal has been given. In my view, the reference to, “leave to appeal” is a reference to leave to appeal granted pursuant to a provision in a relevant law requiring leave to appeal. For example, see Magistrates Court Act s 274(1). It therefore has no application in a case such as the present, where leave to appeal is not required although leave is sought to file the appeal out of time.
Paragraph (d) is prima facie applicable because no time is provided by the relevant law and leave to appeal under division 5.3.2 of the Rules is not necessary. In cases where that paragraph is applicable the appeal must be filed no later than 28 days after the day the order appealed from was made “or not later than any further time of the Supreme Court allows on application filed in the court before the end of the 28-day period.” Thus, the capacity of the Court to extend the time in which an appeal may be filed pursuant to r 5103(d) is limited to situations where an application for additional time is filed in the Court before the end of the 28 day period. It does not apply to circumstances where neither an appeal nor an application for additional time is filed within the 28 day period.
Therefore, if there is a power to permit an appeal to be filed outside of the 28 day period specified in r 5103(d) then that power must be found either in r 5103(b), or in the capacity to dispense with terms of the Rules pursuant to r 6.
In relation to the operation of r 5103(b), r 5051 makes it clear that the Rules do not purport to provide a regime inconsistent with the terms of the relevant law. If the relevant law itself provides that the Supreme Court may extend the time in which an appeal can be brought then paragraph (b) is unnecessary because the relevant paragraph would be (a) and paragraph (b) would most likely be repeating the terms of the relevant law. These considerations would suggest that paragraph (b) is not intended to be limited to only those circumstances where the relevant law specifies a time period in which the appeal must be filed.
However, if paragraph (b) could apply to the circumstances dealt with in (c) and (d), both of which apply where the relevant law does not specify a time period, then the specific regimes provided for in those paragraphs would be undermined. There would be little point in specifying that the application for further time needed to be brought within the 28 day period if that requirement could be outflanked by an order under paragraph (b).
In my view, the opening words of paragraphs (c) and (d) make it clear that they are intended to apply to the situation where no time is provided by the relevant law and either leave to appeal is or is not necessary. That leaves paragraph (b) dealing with the situation where the relevant law does specify a time in which an appeal must be filed. It must then apply in circumstances where the relevant law permits additional time to be granted and gives effect to such a provision for the purposes of the Rules. It does not operate as a general power to extend the time in which an appeal may be filed where the relevant law does not already specify a time and the application for such an extension is made after time specified under r 5103(d) has passed. That interpretation is not the most benevolent one that is available for prospective appellants but it appears to me to be consistent with the words used in, and the structure of, r 5103.
Section 151C of the Legislation Act 2001 (ACT) is also potentially relevant to the interpretation of r 5103.
151CPower to extend time
(1)This section applies if, under an Act or statutory instrument—
(a)something must or may be done on a particular day or within a particular period of time; but
(b)a court or other entity has power to extend the time (the relevant time) for doing the thing.
(2)A person may apply to the court or other entity for the relevant time to be extended even though the relevant time has ended.
(3)The court or other entity may extend the relevant time even though the relevant time has ended.
(4)This section is a determinative provision.
Note See s 5 for the meaning of determinative provisions, and s 6 for their displacement.
(5)This section applies only to an applicable law or applicable provision.
(6)In this section:
applicable law means an Act enacted, or statutory instrument made, after 1 January 2006.
applicable provision means a provision inserted after1 January 2006 into an Act or statutory instrument that is not anapplicable law.
inserted, for a provision, includes inserted in substitution for another provision.
Because it is a determinative provision, s 151C can only be displaced “expressly or by a manifest contrary intention”: s 6(2) of the Legislation Act 2001 (ACT).
In my view, the words of r 5103(d) express a manifest contrary intention because they state expressly that the application must be filed in the court before the end of the 28 day period.
The conclusion that r 5103 does not permit an extension of time in an appeal under s 274 of the Magistrates Court Act unless an application is filed within the 28 day period is reinforced by the terms of other rules which deal with the time in which appeals must be brought and the capacity of the Court to extend that time. Rule 5104 relates to appeals from an interlocutory decision of the Master or a decision of the Registrar. The rule requires that the appeal be brought no later than five days after the date of the decision “or any further time the Supreme Court allows”: r 5014(1)(a). It is notable that the provision allowing further time is not constrained by a requirement that the application for such further time be made before the end of the expiry of the five days. Rule 5014(1)(c), which applies to appeals in relation to matters arising under the Corporations Act, adopts the same formula in relation to further time. Rule 5312 deals with applications for leave to appeal to the Court of Appeal from an interlocutory order of a judge. It requires that the appeal be brought within seven days of the day the interlocutory order is given or “not later than any further time allowed by the Court of Appeal or the judge who gave the interlocutory order.” Rule 5405 relates to appeals to the Court of Appeal from final decisions. Where leave to appeal has been granted the appeal must be filed within seven days of leave being given or “not later than any further time allowed by the Court of Appeal on application filed in the court before the end of the 7-day period”: r 5405(1)(a)(I). Where the Court of Appeal sets a time for filing when giving leave to appeal the provision for further time is similar: r 5405(1)(a)(II). In other cases the appeal must be filed within 28 days after the day the order repealed from was made “or not later than any further time the Supreme Court allows on application filed in the court before the end of the 28-day period”. Significantly, however, r 5405(2) provides that “the Court of Appeal may, at any time and for special reasons, give leave to file a notice of appeal.”
These other rules demonstrate that a variety of different provisions apply to appeals of different types and indicate that deliberate choices have been made in the Rules as to the capacity of the Court to extend time in different circumstances. In my view, each of those provisions which specify that the application for further time must be filed before the expiry of the relevant period demonstrates a manifest contrary intent to the general rule in s 151C of the Legislation Act 2001 (ACT). On the other hand, those which simply provide that further time may be granted would, as a result of the operation of s 151C, be interpreted as permitting an application to be made after the specified time had expired.
The contrast between the provisions for appeals to the Court of Appeal, which permit the giving of leave to appeal at any time “for special reasons”, and r 5103, which does not contain such a catch-all provision, is notable and reinforces the conclusion which I have reached.
As a consequence, any capacity for the Court to permit the applicant to appeal in the present case would be dependent upon whether the requirements of the Rules should be dispensed with under r 6. Unless that occurs, the application for leave to appeal out of time is incompetent and must be dismissed.
No time in which to appeal is specified in the relevant Act and the time limits specified in the Rules are procedural matters made pursuant to the general rule-making power identified in schedule 1, part 1.2 of the Court Procedures Act 2004 (ACT). It is axiomatic that the rules are the servant of the interests of justice not the master: Clune v Watson [1882] Tarl 75; Re Coles & Ravenshear [1907] 1 KB 1; Harding v Bourke (2000) 48 NSWLR 598 at [26]. The capacity to dispense with the requirements of the Rules is itself a statutory power not conditioned by any specific considerations. It is a wide plenary power subject only to the requirement that the dispensation must apply to particular proceedings. Having said that, the time limit provisions in the Rules are designed to serve the interests of justice by giving an opportunity to appeal while, at the same time, giving finality to the parties when the opportunity for an appeal has passed.
In deciding whether to dispense with the requirements of the Rules in order to permit the application for an extension of time to be made, I will take into account the same considerations that I would take into account if there was a power to grant an extension in the same terms as r 5103(d), except not conditioned by the requirement that the application be made prior to the expiry of the appeal period. If I would not, in any event, have been satisfied that it was appropriate to extend time then I do not need to consider what more would be required to justify a dispensation with the terms of the Rules to permit such an extension of time to be granted.
The test to be applied
Adopting the approach that I have outlined above and addressing the matter as if r 5103 permitted an extension of time to be granted, the principles to be applied to an application for an extension of time are summarised in Director of Public Prosecutions (ACT) v Martin (2014) 9 ACTLR 1 where (at [159]-[160]) a Full Court of this Court said:
159. The governing principle is that legislative time limits are not to be ignored. Applications for extension of time will only be granted where it is proper to do so. It will be proper to do so only where it is fair and equitable in the circumstances. It is up to the applicant (here the Director) to persuade the Court that it would be fair and equitable to extend the time. In summary, the following non-exhaustive considerations, drawn from Jess v Scott [(1986) 12 FCR 187] ]and Hunter Valley v Cohen [(1984) 3 FCR 344], bear upon the exercise of the discretion:
(1) The length of the delay;
(2) Whether there is an acceptable explanation for the delay;
(3) Whether the case raises questions of general importance;
(4) The extent of any prejudice to the defendant, including any prejudice in defending the proceedings that is caused by the delay, although absence of prejudice alone is not sufficient to justify a grant of an extension;
(5) Whether the interests of third parties have been affected;
(6) The wider public interest;
(7) The merits of the substantive application.
160. It is important to bear in mind, however, as Burchett J put it in Pozniak v Minister for Health (1986) 9 ALN 256 at 256, that these considerations are “signposts to guide the court’s discretion”, not “fences to limit the breadth of the field”.
In the present case the most important considerations are the nature of the explanation for the delay in filing an appeal and the merits of the appeal if leave to file the appeal was granted. In the present case the assessment of the merits of the proposed appeal is complicated by the fact that the applicants propose, if an appeal is filed, to seek to have admitted considerable additional evidence. This evidence is in both affidavit and documentary form. In order to assess the merits of the proposed appeal it is therefore necessary to consider first the nature of the appeal and the principles that would apply to the admission of further evidence on appeal.
Approach to appeal and further evidence
Section 276 of the Magistrates Court Act provides that in an appeal the Supreme Court must have regard to the evidence given in the proceeding in the Magistrates Court out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.
The nature of such an appeal and the approach to the assessment of evidence is summarised in Urbaniak-Bak v Prail [2014] ACTSC 171 at [51]-[53].
In relation to admission of further evidence the principles to be applied are set out in the Court of Appeal decision in Teo Tran t/as Canberra Direct and as Canberra Mailing v Calvista Australia Pty Ltd [2010] ACTCA 5 at [25]-[30] as follows:
25.The Court in Sobey v Nicol and Davies also (at 403-404) cited with approval the observation of Gibbs CJ and Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
26.The High Court held in CDJ v VAJ (at 200-204) that the power to admit further evidence was discretionary and that a critical factor was “the subject matter of the proceedings with which the appeal [was] concerned”. Further, “factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion”.
27.The High Court accepted that it was not an unfettered discretion, but the discretion will be exercised where “that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures”.
28.The High Court continued:
Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
29.The High Court suggested that evidence which is not in dispute and which a court can evaluate and take into account without the necessity of a rehearing will be readily admitted. The discretion must, of course, be exercised judicially. That the evidence has been deliberately withheld will ordinarily weigh heavily against the exercise of the discretion to admit it.
30.It is clear from these authorities that relevant factors to be considered when an application is made to receive further evidence on appeal include:
•the reasons why the further evidence was not adduced at trial;
• the steps taken or which could have been taken to have the further evidence available at trial; and
• whether the admission of the further evidence would have had an effect on the outcome of the trial.
(See also Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2014] ACTCA 32 at [27] – [32].)
The decision below
The magistrate heard the proceedings on 2 October 2014. He reserved his decision and delivered an oral decision on 7 October 2014.
The magistrate’s decision largely turned upon whether or not the evidence of Mr Ngep should be preferred over the evidence of Mr Hussein. That was because the principle contests at trial were as to whether Mr Ngep’s evidence as to the terms of the agreement between the parties was to be preferred to Mr Hussain’s, and what amount had in fact been paid pursuant to the agreement. Mr Ngep said that the agreement was for the payment of 25 instalments of $1363.37, of which only some $16,000 had been paid. Mr Hussain contended that the agreement was for a payment of $20,000 and, further, that more than $20,000 had been paid.
His Honour’s reasons can be divided into three portions: a recitation and discussion of Mr Ngep’s evidence in support of his case; a recitation and discussion of Mr Hussain’s evidence in support of his case; and a discussion of whose evidence should be preferred and a statement of the consequences of his Honour’s preference for the evidence of Mr Ngep.
Mr Ngep gave evidence that he had arranged to borrow $56,990 to purchase and fit out a Toyota Tarago as a wheelchair taxi in 2009. The money was borrowed by Angkor What Pty Ltd, a company controlled by Mr Ngep. The taxi was then registered in the name of a Mr Van Vliet, but Mr Ngep drove the taxi and operated it as his own. When the vehicle was due for registration in early 2011 Mr Ngep wanted to sell it and had discussions with Mr Hussain. Mr Ngep’s evidence was that he gave Mr Hussain two payment options: either pay $22,000 in cash; or pay 25 monthly instalments of $1363.37. Mr Ngep said that Mr Hussain took the instalment option. Mr Hussain then paid $1363.37 for the first three months. Thereafter the payments were made sporadically and not always in the precise sum. Payments were made up until 25 October 2012 and thereafter ceased. As at that date Mr Hussain had underpaid Mr Ngep by $16,069.92 – a figure which his Honour accepted as accurate. (I note at this point that the reference in the transcript to $1669.92 was a transcription error and further, that the evidence disclosed that the amount paid, rather than underpaid, was $16069.92.)
The plaintiff’s evidence was that the agreement was reached on 15 March 2011. A written contract was prepared but not executed until 27 March 2011. That document became Exhibit B before his Honour. His Honour found that, although there were some minor errors in Exhibit B, he accepted that it was a document which was formally intended to record what the parties had agreed to on 15 March 2011. He accepted that it was signed and adopted by both parties.
His Honour said that Mr Ngep’s evidence was that the vehicle was transferred to MM International and the agreement was for the payment to be made to reduce the debt of Angkor What. His Honour found that Mr Ngep and Mr Hussain acted in their capacity as directors of Angkor What and MM International. Although his Honour referred to them acting as directors of “the first and second defendants” his Honour clearly intended that to be a reference to the two companies, the second plaintiff and second defendant in the Magistrate Court proceedings.
His Honour then turned to deal with the evidence given by Mr Hussain. Mr Hussain’s evidence was that the agreement was for him to pay $20,000 to Mr Ngep. He said that he went to Mr Ngep’s house in Dunlop and inspected the vehicle, which was offered for $20,000. His evidence appeared to be also that he was given the option of paying by instalment. His Honour found that on 27 March 2011 Mr Hussain signed the contract, which was to make 25 monthly payments for $1363.37. He noted that the execution of this agreement was clearly inconsistent with Mr Hussain’s pleadings and evidence. His Honour noted that counsel for Mr Hussain had stated in his opening address that his case was that Mr Hussain’s signature on the contract was forged. His Honour referred to the evidence given by Mr Hussain as to whether or not he had signed or initialled the document. He summarised Mr Hussain’s position as being that, “[Mr Hussain] claimed the document was cooked up. It did not represent the agreement reached”. However, as already indicated above, his Honour found that the document was adopted by Mr Hussain on behalf of MM International, representing the terms of the agreement entered into on 15 March 2011.
His Honour then addressed some specific contentions made by Mr Hussain and MM International. The first was that various other payments, including a payment of $7,500, had been made by Mr Hussain to Mr Ngep. In support of this, Mr Hussain had tendered a receipt purporting to record a payment of monies paid to the plaintiff. However, his Honour noted that the receipt was from a person who was not a party to the proceedings, and that there were no contemporaneous records, such as a bank statement, to demonstrate that the monies had been paid by Mr Hussain, notwithstanding Mr Hussain’s evidence that the amount had been paid by cheque. His Honour speculated that the receipt may be a genuine, but false document brought into existence for the purposes of reducing stamp duty.
In relation to the other payments claimed to have been made, his Honour identified that Exhibit 1 – a handwritten schedule of payments prepared by Mr Hussain – referred to such payments but there were no supporting documents or cheque books produced to support it. He said that the calculations in Exhibit 1 did not take into account cash payments made to Mr Ngep as a taxi driver, as opposed to in reduction of the debt that was claimed, and hence the figures in Exhibit 1 may be “adulterated”. In any event, his Honour noted that the payments shown took the amount payable under the agreement to more than the $20,000 that Mr Hussain had claimed. His Honour therefore rejected Mr Hussain’s evidence that the agreement was for $20,000.
His Honour also referred to Mr Husain’s assertion that the car was “a lemon”. His Honour said that the claim was likely to be an invention by Mr Hussain. His Honour pointed out that, although Mr Hussain said that two months after the car was sold to him he asked Mr Ngep to take it back, when Mr Ngep did attempt to take the car back Mr Hussain reported the matter to the police. His Honour concluded that there was no evidence before him that suggested the vehicle was not fit for the purpose of being used as a taxi.
His Honour next dealt with an issue of mistake as to the identity of the contracting parties namely the involvement of Mr Van Vliet. He noted that this issue was not pleaded, although it was raised “incessantly” by Mr Hussain in his evidence, in which Mr Hussain said that if he knew that Mr Van Vliet was to be involved he would not have wanted to buy the taxi. However, his Honour found that Mr Hussain, Mr Ngep and Mr Van Vliet attended the motor registry together to affect the transfer and it was apparent that Mr Van Vliet was a participant in the transaction. That was on about 15 March 2011 and no money had been paid. The first payment was made on 22 March 2011 and other payments were made thereafter.
Further, his Honour pointed out that, had he accepted the evidence of payment of $7,500 made to Mr Van Vliet, which he did not, then that evidence would negate any claim of mistake in any event. His Honour was satisfied on the evidence that Mr Hussain had entered into the contract knowing Mr Van Vliet’s assistance was necessary to perfect the arrangement and, hence, that no misrepresentation induced Mr Hussain to enter into the contract.
His Honour then referred to his impressions of the witnesses, Mr Ngep and Mr Hussain. He recorded his impressions of the witnesses as they gave evidence. In particular, he recorded that Mr Ngep’s evidence was given in a manner designed to assist the Court. On the other hand, he recorded that Mr Hussain was an unsatisfactory witness and gave reasons for that conclusion. In particular, his Honour referred to the inconsistency between the claim that the contract was for $20,000 and the conduct of paying by instalments, particularly in the specific sum of $1363.37 per month for the first three months. Further, he pointed to the inconsistency in the evidence that the vehicle was “a lemon” and Mr Hussain wanted Mr Ngep to take it back and the continued monthly payments. Further, he pointed to the inconsistency in having made payments which were in excess of the amount which were alleged by Mr Hussain to be due. His Honour recorded that where there was a conflict between the evidence of Mr Ngep and Mr Hussain he accepted the evidence of Mr Ngep.
As a result, his Honour found that the agreement entered into by the parties on or about 15 March 2011 was evidenced in the written document of 27 March 2011 adopted by both parties.
His Honour made orders permitting judgment to be entered for Angkor What against MM International in the sum of $18,034.28, being $16,069.02 plus interest of $1965.25. An amendment made under the slip rule amended the judgment to be entered by one cent to $18,034.27.
I note that his Honour appears to have based his judgment on the figure of $16,069.02 and then added interest to that amount. As pointed out above, $16,069.02 was the amount shown in Ex D as the amount paid rather than unpaid. The amount unpaid was $18,015.23. This amount plus interest should have been used to arrive at the judgment amount. Thus the amount of the judgment was erroneous. However because this error is favourable to the applicants it does not provide a basis for the granting of an extension of time in which to appeal.
Explanation for delay
Mr Hussain agreed that he was present in court when the magistrate gave his decision on 7 October 2014. There was no coherent evidence about why he failed to file an appeal with the time permitted by the Rules. The relevant evidence given by Mr Hussain is set out at [9] above. The evidence suggested that Mr Hussain may have considered that it was necessary to obtain a perfected copy of the orders that had been made and that this delayed the process of filing the appeal. The bench sheet in the Magistrates Court indicates that his Honour amended his judgment under the slip rule on 29 October 2014 by changing it by one cent from $18,034.28 to $18,034.27. However, there was no requirement to obtain a perfected copy of the order in order to lodge an appeal. Any subsequent amendment to the terms of the order would not have affected the validity of an appeal lodged within time.
The essential facts are that Mr Hussain was in court when the judgment was announced and had, at least, access to legal advice. While he is likely to have lacked a complete appreciation of the significance of time limits because he is a non-lawyer and may have been unfamiliar with the process for filing an appeal, those facts alone do not provide a proper explanation for a failure to lodge in time.
Prospects of appeal
The proposed grounds of appeal identified in the draft notice of appeal were as follows:
1.The Learned Magistrate erred in finding that [Mr Ngep] owned the vehicle at the time that it was sold to [Mr Hussain].
2.The Learned Magistrate erred in finding that the agreed price for the vehicle was in excess of $20,000.
3.The Learned Magistrate erred in finding that the vehicle sale dealing was between [Mr Hussain] and [Mr Ngep].
The orders sought in the draft notice of appeal are:
1.Judgment dated 7 October 2014 be set aside and dismissed.
2.Counterclaim made and submitted by the appellant and refused by the Magistrates Court to allow and another fair hearing according to the fact and new evidence of ownership of vehicle.
Ground 1: This ground is misconceived. The ground proceeds on the basis that his Honour found that Mr Ngep owned the vehicle at the time it was sold to Mr Hussain. On the contrary, his Honour found that the vehicle was owned by Angkor What and that Mr Ngep had been acting in his capacity as the director of that company: see paragraph [44] above. Therefore this ground of appeal is without merit. In so far as the appeal might seek to raise the involvement of Mr Van Vliet as the registered owner of the vehicle, this is an issue which played a significant part in the hearing and, in my view, his Honour dealt appropriately with it in his reasons.
Ground 2: This ground seeks to establish an error on his Honour’s part in reaching the conclusion that the purchase price was agreed at 25 instalments of $1,363.37. His Honour reached this conclusion because he accepted Mr Ngep’s evidence. The acceptance of Mr Ngep’s evidence was significantly based on his impressions gained during the course of the hearing of the respective credibility of the witnesses, including their demeanour when giving evidence. In those circumstances the applicants would face a very high bar: Fox v Percy (2003) 214 CLR 118 at [26]-[29]. The applicants might succeed if he established that his Honour had failed to have regard to “the objective factual surrounding material and the inherent commercial probabilities” which were available: Effem Foods Pty Limited v Lake Cumbeline Pty Limited & Ors (1999) 161 ALR 599 at [16]; see also State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306. However, in the present case the objective material relating to payments clearly favoured the conclusion reached by his Honour. In particular, the payments of the first three monthly instalments were each in the sum of $1363.37 (the third being two payments which totalled $1363.37) which was consistent with Mr Ngep’s evidence as to the quantum and method of payment. Further, his Honour was entitled to have regard to the inconsistency between the amount alleged by Mr Hussain to have been actually paid, and Mr Hussain’s evidence that the purchase price was less than that amount. In those circumstances, this ground of appeal would have very poor prospects.
Ground 3: This ground as drafted is based on the same misconception as ground 1. His Honour found that each man was acting as a director of their respective companies. Therefore this ground, as it is drafted, is without merit.
However, in his affidavit dated 18 March 2015, which I treated as written submissions, Mr Hussain submitted that “the Learned Magistrate failed to [acknowledge] that the sale was between the first appellant and the first respondent” (at [11]) and “the second respondent never entered into any contract with the appellant at all” (at [18]).
If in fact Mr Hussain’s intention was to allege, as a ground of appeal, that his Honour erred in not finding that the vehicle sale dealing was between Mr Hussain and Mr Ngep, then in my view it would not be appropriate to grant leave to appeal out of time so as to permit him to advance that argument. That is for the following reasons.
The Amended Defence did not specifically deny that Mr Ngep was acting as a director of Angkor What when entering into the agreement. It asserted an alternative contract between MM International and Mr Ngep to purchase the car for $20,000 was entered into. At the trial the issue of whether or not the contract was with Mr Ngep or Angkor What was not raised in any significant manner. The solicitor appearing for Mr Hussain and MM International said in opening that Mr Hussain did not sign the written agreement and that the agreed price was $20,000, not the instalment arrangement amounting to $34,084.25. The issue of whether the contract involved Angkor What was one which was not otherwise raised at the trial except peripherally in an answer given by Mr Hussain in cross-examination. No questions were asked of Mr Ngep in cross-examination to suggest that he personally came to the agreement with Mr Hussain even though he did not in fact own the vehicle himself. The identity of the contracting parties was not raised in final submissions by either party. Thus, the case was, in a practical sense, not run on this issue.
His Honour clearly recognised that there were difficulties with the terms of the written document recording the agreement which did not refer to Angkor What. He had before him evidence showing that the owner of the vehicle was in fact Angkor What. In those circumstances, the finding that his Honour made that both Mr Ngep and Mr Hussain were acting as directors of their respective companies was open to him, particularly where no submission to the contrary was put. For present purposes the more important point is that, having regard to manner in which the trial was run, to permit this ground of appeal to be raised now would be in effect to permit an issue to be raised which was not raised below and might have been met by further evidence, in particular, from Mr Ngep or by an amendment to the respondents’ pleadings.
Orders sought on the appeal: Order 2 sought on the appeal relates to a counterclaim which the Magistrates Court refused to permit to be filed. At page 2 of the transcript of the hearing on 2 October 2014 the very first matter that was raised by the parties and dealt with by the Court was the issue of the counterclaim. The transcript provides:
MR MOFFETT: Your Honour, this is a breach of contract matter. There’s been some conversations between my friend and I. There were some further pleadings that were filed in the court on or around 26 September 2014, just last week. They were not sealed, as I understand, but they were provided to my instructing solicitor. I think the first thing that needs to be done, with respect, is for your honour to put your mind to the amended pleadings. There is no application proceeding that I’m aware of that’s been filed and I suspect that my friend will have something to say about that.
HIS HONOUR: It’s very late in the day, anyway. The matter has been set down for hearing. The parties have been given an opportunity before to file documents; they haven’t done so. That’s the way I look at it.
MR JONES: Your honour, if I might just take up my friend’s invitation, if you like. I understand that that document was sought to be filed in the court but indeed it wasn’t filed because indeed the court properly noted that the pleadings had closed, and without a formal application it would not be accepted. I understand that my client - and this is prior to my being instructed in the matter - delivered that to the - - -
HIS HONOUR: When did you come into the matter?
MR JONES: Yesterday, your Honour. For that matter, your Honour, it is evident that there are some deficiencies and some difficulties with the way in which that document has been put together. To some extent it does repeat the pleadings that have already been filed. My submission is that it would be appropriate for the plaintiff, if he is to press that application, to make that - - -
HIS HONOUR: It’s not before me; it’s your application. I mean if you wanted to file a document - which I’m not inclined at this stage to grant leave to file it – it’s your application, not his.
MR JONES: Indeed, your Honour, and I’m not pressing that at this time.
In the light of these transactions at the commencement of the proceedings below, there is no reasonable prospect of the applicants ever obtaining an order in the nature of proposed order 2 on an appeal.
Additional matters raised in written submissions: In the applicants’ written submissions filed on 30 March 2015 the applicants raise some additional contentions not dealt with above. They contend that the written agreement did not identify an agreed purchase price and that this was an “essential element” of an agreement. I do not accept this submission. The agreement specified the number, timing and quantum of payments to be made and in my view this clearly identified the consideration payable.
The applicants also contend that the further evidence would demonstrate that the vehicle was never registered in either respondent’s name. In my view such evidence could be of little significance because it was consistent with his Honour’s reasons for decision and because registration does not prove title to a vehicle: Road Transport (Vehicle Registration) Act 1999 s 9.
The applicants also contended that the further evidence proposed to be called from Mr Van Vliet would demonstrate the beneficial ownership of the vehicle. This argument would not be successful because (a) for the reasons I give in the next section, it is unlikely that the additional evidence would be admitted; and (b) the additional evidence (Annexure E to the affidavit of 11 March 2015) did not demonstrate that the conclusion reached by his Honour was wrong, but instead was consistent with Angkor What owning the vehicle.
Further evidence: In assessing the grounds of appeal and the other submissions of the applicants, I have had regard to the material which Mr Hussain indicated he would wish to tender on the appeal if leave to appeal out of time was granted. That material comprised:
(a)passages of three affidavits affirmed by Mr Hussain dated 24 November 2014, 3 February 2015 and 11 March 2015 (including various annexures); and
(b)documents which became exhibits A1, A5, A6, and A7.
Having regard to the test for the approach to be applied set out at [38], if leave to appeal was granted it is unlikely that this material would be admitted into evidence for two reasons.
First, there is no good reason why the material was not tendered at trial. The affidavit material substantially repeats evidence given or submissions made at the trial. In relation to the documentary material, there is no explanation as to why, if it was in the possession of the applicants, it was not tendered at the trial. The fact that some of the material was produced on subpoena issued for the purposes of this application for an extension of the time in which to appeal does not provide a good reason why it was not tendered at trial. There is no reason why the material could not have been subpoenaed prior to the trial in the Magistrates Court.
Second, the admission of the further evidence would be unlikely to have any effect on the outcome of the trial. The outcome of the trial largely turned on the assessment of the credibility of witnesses. The documentary material produced for the purposes of the appeal did not demonstrate that the assessment was wrong and was not otherwise inconsistent in any material way with his Honour’s findings. It provided further evidence about the price of the vehicle and the transactions involving Mr Van Vliet necessary to permit its transfer to MM International. Although Mr Hussain placed considerable emphasis on a Red Book valuation of a vehicle of the same model, even if that was otherwise admissible on an appeal, it would not be probative evidence that demonstrated his Honour’s conclusions were wrong.
Conclusion on leave to appeal out of time: Having regard to the less than compelling explanation for the failure to file the notice of appeal within time and the weakness or other difficulties with the grounds of appeal and other arguments put forward by the applicants, I would, in the exercise of my discretion, refuse an extension of time in which to file the appeal.
Conclusion
The position is therefore:
(a)there is no power under r 5103 to permit further time in which an appeal could be filed; and
(b)even if there was such power, I would decline to exercise it in the present case.
In those circumstances it would not be appropriate to exercise the power under r 6 of the Court Procedures Rules to dispense with the operation of the rules relating to when an appeal must be filed. It is therefore not necessary to separately consider the principles to be applied to the making of an order under r 6 that would permit a departure from the requirements of the rules relating to the time in which the appeal should be brought.
Orders
The order of the Court is therefore:
The application dated 24 November 2014 is dismissed with costs.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 1 April 2015 |
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