Interstate Taxi Trucks Pty Ltd v Tarasin
[2001] VSC 377
•2 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 5624 of .2001
| INTERSTATE TAXI TRUCKS PTY. LTD. (ACN 085 992 123) |
| Plaintiff |
| v. |
| JASMIN LEE TARASIN |
| Defendant |
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JUDGE: | ASHLEY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 October 2001 | |
DATE OF JUDGMENT: | 2 October 2001 | |
CASE MAY BE CITED AS: | Interstate Taxi Trucks Pty Ltd v Tarasin | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 377 | |
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Appeal from Master's refusal to grant leave to appeal from decision of Victorian Civil & Administrative Tribunal - Appeal dismissed
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Allen | Rogers & Gaylard |
| For the Defendant | Mr P. Bornstein | Efron & Associates |
HIS HONOUR:
This is an appeal from an order of a master made on 2 July this year dismissing an application made by the plaintiff, Interstate Taxi Trucks, for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (the Tribunal) made on 8 February 2001. That proceeding concerned a contract entered into between the plaintiff and the defendant, Jasmin Lee Tarasin, by which the plaintiff agreed to carry goods from New South Wales to Victoria, the contract being made in December 1999.
It is common ground that a vehicle containing the defendant's goods ran off or was run off the road in the course of the pertinent journey and that there was damage to boxes which contained the defendant's goods. The defendant made a claim on the plaintiff. She asserted that the extent of the damage to her goods was some $5,000. She further asserted that goods had been lost which had a value of $7,000. The plaintiff denied that the defendant had a valid claim. It relied upon an exclusion clause and it relied upon arguments of fact. The latter had two elements: first, that there was a dispute as to the extent of damage to goods; and second, that there was a dispute whether any goods had been lost, and, if they had, then as to their value.
The dispute could not be resolved between the parties and so the defendant initiated a proceeding in the Tribunal. The proceeding came on for hearing on 20 June 2000. It came on again for resumed hearing on 8 February this year. On each occasion the parties appeared unrepresented. In the end result, the Tribunal decided that the defendant had a valid claim to the extent of $7,500.
Oral reasons were pronounced by the Tribunal on 8 February. Some time thereafter the plaintiff's solicitors sought written reasons. Such reasons were in due course provided. They are dated 5 April 2001.
The sequence of events which I have outlined led on to the commencement of the present proceeding by originating motion filed 3 May of this year. That proceeding was initiated pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (the Act), which permits a party to a proceeding to appeal on a question of law from an order of the Tribunal in the proceeding. Such an appeal is only possible if the Trial Division of this Court (save if the Tribunal was constituted for the making of the impugned order by the President or a Vice-President, whether with or without others) gives leave to appeal. Under the Rules, an application for leave to appeal is to be considered by a Master. The application for leave to appeal in this matter was so considered, and it is from the Master's order refusing leave that this appeal is brought. Under r.4.09(2), it is convenient to note, the Master may refuse leave to appeal if satisfied that the applicant does not have a prima facie case or that to refuse leave would impose no substantial injustice. That provision is not to limit the Master's authority generally to grant or refuse leave, authority conferred by r.4.09(1).
Essentially, the plaintiff claims that the Tribunal erred in law in that, both on 20 June 2000 and 8 February this year, it denied the plaintiff natural justice by refusing to permit the plaintiff to tender evidence and make submissions.
I should refer to a few of the provisions of the Act. The Tribunal is under an obligation, by s.98, to afford the parties natural justice. By s.97 it is under a duty, fairly described as being of the motherhood variety, to act fairly and according to the substantial merits of the case in all proceedings. By s.102, it must allow a party a reasonable opportunity to call or give evidence and to make submissions to it. The obligation imposed by ss.97 and 102 and the obligation to afford the parties natural justice are to be understood in light of the procedures otherwise imposed by the Act and in particular by s.98(1)(b), (c), (d), (2), (3) and (4).
The particular complaints made by the plaintiff before the Master, as I understand it, repeated before me today, were that its representatives had been precluded from putting into evidence an exclusion clause which, at its highest, could be said to have been part of the contract entered into between plaintiff and defendant; and, further, to deny to the plaintiff a right to adduce evidence concerning the quantum of the defendant's claim. At the heart of the second complaint, it seems, was the circumstance that an assessor appointed by the plaintiff had estimated the defendant's loss and damage at an amount of $9,583.90, made up of $2,869.95 for damaged goods and the balance for goods lost. That assessment was placed before the Tribunal on the second day of hearing. The plaintiff says that it desired to impugn that assessment by other evidence, and was denied an opportunity of doing so.
I have set out what was the main burden of the plaintiff's complaint that it was not allowed to adduce evidence concerning quantum. There was a second aspect to that complaint. The plaintiff had shipped goods for the defendant from Victoria to New South Wales in 1998. The defendant had then valued the goods at some $3,000. The plaintiff says that it wished to place before the Tribunal evidence of the alleged value of the goods shipped in 1998 as being pertinent to the defendant's claim for loss and damage arising from the shipment undertaken in 1999.
This appeal from the Master's refusal to grant leave to appeal proceeds by way of re-hearing. That said, at the end of the day the appeal must be either allowed or dismissed. In the present case I consider that, whilst the matter is not free from all doubt, the appeal should be dismissed.
The affidavits before the Court, together with the exhibits which include the Tribunal's reasons, do not permit a confident analysis of just what went on at the Tribunal on the two occasions which I earlier identified. That is probably in part because lay people are seeking by their affidavits to explain their understanding or perception of what occurred. It is probably also in part because the procedure on both occasions seems to have been quite informal. Again, the Tribunal's reasons, which in the ordinary course should be expected to cast clear light on the course of events, and in particular the material adduced by and arguments of the parties, are far from satisfactory. Whatever be the explanation, only a few paragraphs of the reasons really address those matters.
Having highlighted the difficulties created by the material which is before me, I have concluded that, on analysis, it does not show that the plaintiff by its representative either in June 2000 or in February 2001 sought to put into evidence before the Tribunal a document constituted by or containing the exclusion clause in respect of which document it could clearly be said that it was part of the contract made between plaintiff and defendant with respect to the 1999 shipment. The plaintiff's manager, Mr Matysic, by his affidavit sworn 10 May 2001, deposes that when he appeared before the Tribunal on 20 June 2000 he wished to make submissions that the plaintiff denied liability on the basis of an exclusion clause set out by him at paragraph 5(iv) of his affidavit, but was precluded from doing so. According to the affidavit of the defendant sworn 26 June 2001, however, an attempt was made by the plaintiff to present a contract to the Tribunal in the course of the proceeding. The Tribunal, it is deposed, "did not, however, accept the contract as it was unsigned and unsighted by myself". The Tribunal's Reasons for decision, at paragraph 5, referring to the hearing on 20 June (the reasons wrongly give the date as 20 July), say that:
"There was no evidence presented by Interstate Taxi Trucks as to the quantum of the goods and the notes made at the hearing record 'paperwork lost'."
That part of the Reasons, though addressing the question of quantum, suggests that something was said at the first hearing by the plaintiff's representative to the effect that paperwork pertaining to the contract had been lost. It seems to me that this observation by the Tribunal is consistent with the defendant's account of events: that is, that an attempt was made, but rejected, by the plaintiff's representative to get the exclusion clause into evidence.
The plaintiff relied, before the Master and before me today, upon an affidavit of Annette Drill sworn 11 June 2001. That affidavit contains material not squarely relating to the 1999 contract. It does rather suggest, however, that there was an absence of documentation specifically relating to that shipment. It tends to reinforce, if anything, the impression, inexact though the material is, that the plaintiff's side did not have material containing the exclusion clause, signed or acknowledged by the defendant, available for use at the Tribunal proceeding.
The Tribunal's Reasons, regrettably, otherwise add nothing to resolution of the issue now in debate. Paragraph 5 suggests that on 20 July 2000 there was no denial of liability by the representative of the plaintiff, the only submissions being made relating to quantum. That was so only once the issue concerning the exclusion clause had been put to one side.
All in all, the material does not persuade me that the plaintiff was in fact denied an opportunity to adduce into evidence before the Tribunal material which was relevant and probative pertaining to the exclusion clause. I would not say, I add, assuming that the defendant's account of events is correct, that the Tribunal was wrong to reject a document which was unsigned, undated and did not identify the defendant.
I turn to the evidence concerning quantum which the plaintiff says it was denied the opportunity of placing before the Tribunal. There seems to be no doubt that at some stage on the second day of the hearing the plaintiff's representative sought to adduce material to controvert the assessment obtained by the plaintiff which had been placed before the Tribunal. There is, however, a question when that was done. According to Ms Tarasin's affidavit at paragraph 11, the plaintiff's side raised the issue after the Tribunal had announced its decision. That account is quite inconsistent with the account deposed to by Marguerita Jacobs for the plaintiff in her affidavit sworn 11 June 2001. It is, however, at least consistent with the Reasons of the Tribunal at paragraph 11, where the Tribunal notes that Ms Jacobs "told the Tribunal that Interstate Taxi Trucks considered the assessment excessive but presented no other evidence of an alternative assessment of the value of the goods".
The Tribunal's account might be said to be ambiguous. It might be argued that it is as consistent with the Tribunal declining to receive other evidence as it is consistent with the defendant's account of events. So to contend would simply underline again the quite unsatisfactory nature of the material placed before the Court - unsatisfactory not because the intended truthfulness of any of the deponents should be doubted but rather because of the intrinsic difficulties of lay people explaining the sequence of events in the Tribunal proceeding, a fortiori a proceeding conducted, it seems, with considerable informality. I think that, in accordance with established principles, evidence of the course of events most favourable to sustaining the Tribunal's decision ought be relied upon, that is, the account given by the defendant.
As to the plaintiff's complaint that its representative was denied the opportunity of adducing evidence of the value of the defendant's goods transported in 1998, I think that no point can be made. As a matter of logic, it did not flow from the fact that goods to an asserted value of $3,000 had been transported in 1998 that the goods transported in 1999 were of that value. Even if the plaintiff was precluded from adducing such evidence, I think that no criticism could be made. I doubt the relevance of the evidence. It matters not in the event whether the plaintiff was precluded from adducing that evidence, whether with or without the Tribunal considering the issue of relevance.
This application, I think, highlights yet again what can go wrong for parties who are subjected to the informal regime which is so beloved of legislators these days. The potential for parties to walk away dissatisfied with what has gone on because of the way in which proceedings are conducted is very great. The potential for obtaining redress from this Court, even where a litigant is convinced that procedures have gone awry, is imperfect and incomplete. It may be that the plaintiff was done a disservice in the way the matter proceeded in the Tribunal. That may not be the case. What can be said is that a considerable amount of money has been wasted by the plaintiff in attempting to redress a perceived injustice about which this Court, having regard to the confines of its role, can do nothing. From the standpoint of the defendant, the situation is scarcely any better. In the Tribunal the matter went on for something in the order of twelve months. That proceeding culminated in an order favourable to the defendant, but an order reached in circumstances in which it was not surprising that there was an application for leave to appeal. It will be modest comfort to the defendant that at the end of this saga she will have her costs of this unsuccessful proceeding together with the amount awarded her by the Tribunal.
The formal order of the Court is that the appeal is dismissed, leave to appeal being refused.
(Discussion ensued as to costs.)
HIS HONOUR: I will make an order that the appeal be dismissed, leave to appeal being refused, and that the plaintiff pay costs including costs reserved on 6 August 2001. Otherwise no order as to reserved costs.
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