Jiang v Quach

[2000] NSWCA 147

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Jiang v Quach [2000]  NSWCA 147

FILE NUMBER(S):
40860 of 1999

HEARING DATE(S):           14 June 2000

JUDGMENT DATE:            14/06/2000

PARTIES:
Qing-tian JIANG v John T M QUACH

JUDGMENT OF:      Priestley JA Handley JA Clarke AJA   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):        Brownie AJ

LOWER COURT JUDICIAL OFFICER:     18282 of 1993

COUNSEL:
In person
(Appellant)

M J Hasset
(Solicitor)
(Respondent)

SOLICITORS:
In person
(Appellant)

Hassett Dixon
(Respondent)

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA  40860/99
CLD18282/93

PRIESTLEY JA
HANDLEY JA
CLARKE AJA

Wednesday 14 June 2000

Qing-Tian JIANG v John T M QUACH

JUDGMENT

1. PRIESTLEY JA:  The Court is in a position to give judgment straight away.  I will ask Clarke AJA to give his reasons first.

2. CLARKE AJA:  The appellant sued the respondent to recover commission to which he claimed to be entitled as a result of the purchase by the respondent’s company of urea from a company or companies in the Soviet Union.  Originally he claimed commission of $300,000 and fees for services rendered of $26,400, representing $300 per week for eighty-eight weeks, but on 27 April 1999, with leave, he filed an amended statement of claim in which he increased his claim for commission to $1,365,300 and abandoned his smaller claim for services.

3. In his defence, the respondent denied that the appellant provided services and denied that he or his company, Semvilar Pty Limited (Semvilar), purchased any urea.  Although he was ordered to file an amended statement of defence, none appears in the papers and it is clear that the trial judge dealt with the case on the basis of the issues as to commission raised in the original defence.

4. The case was heard by Brownie AJ on 3 and 4 November 1999, on the latter of which days he gave his judgment.  At the hearing, the appellant appeared in person and it is clear that his Honour had some difficulty in extracting from the appellant the whole of the evidence on which he wished to rely but it seems to me from a reading of the judgment itself that his Honour ensured that the appellant had been afforded every opportunity to present his case.

5. The course taken in the trial is best demonstrated by reciting the first three paragraphs of the judgment.

   “1.       The plaintiff sues the defendant for commission.  On the plaintiff’s case, there was a contract made between himself and the defendant on 10 December 1990 containing provisions that the plaintiff would be employed by a company controlled by the defendant called Semvilar Pty Limited as general manager of that company; that the plaintiff would procure the purchase of the urea from what was then the Soviet Union; and that the defendant would pay or procure the payment to the plaintiff of a commission of $1 per tonne of urea that Semvilar purchased. 

   2.        There is, it seems, a dispute between the parties as to the terms of the contract, although it is common ground, I gather, that there was some contract made dealing at least, generally speaking, with those topics.

   3.        The defendant, with a view to saving time and costs, suggested that I embark initially upon an inquiry as to whether Semvilar bought any urea at all and, if so, how much.  The plaintiff acceded to that suggestion.  There seemed to be potential procedural problems and I did not at the time make any relevant order, but I will now make one under Pt 31 of the Rules.”

6. In dealing with the issue posed, that is whether the appellant had established that Semvilar had bought any urea at all, his Honour said that the appellant faced a considerable hurdle in that he had no documentary evidence, or evidence from any witness knowing the facts, establishing that Semvilar bought any urea. 

7. In contradistinction, according to his Honour, the respondent mounted a simple case that as Semvilar could only purchase urea between $US176 and $US178 per tonne and re-sell it at $US152 per tonne, it never bought any urea.

8. His Honour then dealt with the evidence put forward by the appellant in support of his claim.  He pointed out that there was a deal of documentary evidence which had been tendered and which demonstrated that urea had been shipped from the Ukraine, as it now is, to Hong Kong and/or to China but pointed out there was no link in those documents associating the shipping of urea with Semvilar.  In other words, there was no mention of Semvilar in any of the documents.  His Honour pointed out that the appellant relied on what might be described as an admission by the respondent and evidence of a hearsay nature.  I will return to those pieces of evidence later.  The respondent sought to answer that evidence by denying that either he or his company, Semvilar, had ever bought any urea for the reason which I have already mentioned.

9. That, in essence, constituted the bulk of the evidence in the case and his Honour was greatly troubled by the fact that although he was dealing with a case involving an international commercial transaction there were no documents in the case which supported any suggestion that Semvilar had ever bought urea.  In those circumstances, his Honour was required to weigh the admission evidence and the hearsay evidence led by the appellant against the sworn denials of the respondent.  In the end, his Honour was not persuaded that on the balance of probabilities the evidence of the appellant had established the purchase by Semvilar of any urea.  Consequently he dismissed the appellant’s claim.

10. I should also mention before leaving the judgment the final portion of it, in which his Honour refers to an application by the appellant which was made after the close of all the evidence that he be given leave to issue a subpoena addressed to a company known as Agro Chim Export, which as far as his Honour could tell, had offices in Russia and in the Ukraine.

11. Putting to one side the possibility that leave to issue such a subpoena could not have been given with effect, it seems to me that his Honour could not have been held to have been in error in declining to grant leave for the subpoena to be issued.  The substantive reasons upon which his Honour relied were the lateness of the application and the unlikelihood that Agro Chim Export would respond to a subpoena in the circumstances demonstrated by the evidence of a witness, Mr Bulgak, called by the appellant.

12. The appellant has appealed from the judgment and relied in his notice on three grounds of appeal.  (1) Wrongful admission of the defendant’s fabricated lies as an evidence;  (2) wrongful rejection of the evidence of the plaintiff’s witness;  and (3) misdirection taking subjective one-sided approach to problems of issuing the subpoena to Agro Chim Export.  He flatly refused to issue the subpoena.

13. At a fairly late stage in the proceedings before the appeal was heard, the appellant filed in Court an affidavit sworn on 22 May 2000.  In substance, the document was an application to this Court for it to receive evidence additional to evidence given in the court below.  This was supported by the statement to which the appellant swore that he could not have produced the information with unremitting diligence for use at the trial because the authorities concerned had not sent the document to him in a timely fashion.

14. It is appropriate that I deal with this application at the outset, observing that the Court has already indicated that it rejects the application and giving my reasons for supporting that rejection.

15. Before I do so, I should point out that the appellant, who appeared for himself both at the trial and in the appeal, has not followed the procedure laid down in the Rules for the making of applications for the lodging of fresh evidence and did not apprise the respondent of the nature of the fresh evidence until he made his application in the Court today.  Notwithstanding, Mr Hassett, the solicitor for the respondent, elected to have the Court deal with the application rather than seek an adjournment to enable him to receive further and perhaps more detailed instructions.

16. Accordingly, the documents which became I think exhibit A were handed up to the Court in order to enable the Court to determine whether to grant the leave sought.  Those documents were constituted both by documents in Russian and their English translations.  The first document to which reference should be made but which is the second document in the bundle in fact appears as the last document in the appeal book.  It is dated 27 June 1997 and is what might be described an internal document emanating from the administration of the President of the Russian Federation.  Insofar as this document was before the Court, there is no need for the appellant to have leave for it to be before the Appeal Court but its purpose lies, I believe, in its relevance to the second document which in fact is the final document in the batch in exhibit A.  That document is dated 27 December 1999.  It is a telefax message from the foreign economic joint stock company, Agro Chim Export, to the appellant and is in response to a letter of his dated 24 June.  The appellant stated that his letter had been written on 24 June 1997 and that the internal document to which I earlier referred was a type of response to that, which led to the telefax message of December last year.  Whether the letter was written on 24 June 1997 or later does not much matter, it is the telefax upon which the appellant relies and in it the following passage appears.

    “Regarding the subject of the question raised by you, we can inform you of the following: The company, “Aspac Company Ltd” in Bangkok is a representation of the Foreign-Economic Joint-Stock Company “Agrochimexport” and the V O “Soyuzagrochimexport”.

    The contracts signed between your company “Semvilar Pty Limited” and the company “Aspac Company Ltd” have shown that in the period 1990-1993 the company “Aspac Company Ltd” supplied a total of 1,370,000 tonnes of carbamide (which is urea) to your company, “Semvilar Pty Ltd”.”

17. The appellant’s claim is that this material provides the missing link in his evidence.  Now he has, he claims, documentary evidence signed by the Deputy Director General of the foreign economic joint stock company, Agro Chim Export, linking Semvilar with the purchase of a very large quantity of urea. 

18. The appellant submitted, quite correctly, that he was not able to tender this material at the trial because it came into existence some time after the trial concluded and he contended that he had made all possible attempts to secure it before the trial.

19. I am prepared for present purposes to accept that he made all possible attempts to secure it before the trial but the application raises a question as to the admissibility of the document.  If it is not admissible in evidence, then it would be futile to grant the appellant leave to rely upon it in seeking a new trial, or a reversal of the judgment below. 

20. On that question, reliance is placed on the exception to hearsay provisions in the Evidence Act and in particular the exception relating to first hand hearsay. In my opinion, the statements which I have recorded and in particular the second of those statements does not fall into the category of first hand hearsay.  On its face, the document suggests an officer of Agrochimexport has become aware in some unknown way that there are some contracts containing certain information.  There is no indication that the officer had any knowledge in relation to those facts, nor first hand knowledge of the contracts to which he referred.  It seems to me that in this case the position might have been different if someone who had been shown to have particular knowledge of the contracts testified as to what they said but where, as here, there is no material upon which an inference can be drawn that the author had that knowledge, I would not accept that the matter was first hand hearsay.  In addition while there may have been contracts dealing with urea purchases there is no material from which it may have been inferred that Semvilar was actually supplied with that urea.  The highest that the evidence can be out is that an officer of Agrochimexport had been given information as to the contents of contracts between Semvilar and the company “Aspac”.

21. There is also reliance upon the business record exception but that only applies in respect of documents which do not come into existence for the purposes or in contemplation of litigation.  I am prepared to accept for the moment that all the other conditions of the business records exception apply but that does not help the appellant, because it is clear from the history I have recorded that this document came into existence consequent upon a request made by the appellant, being a request made for the purposes of establishing his case in this litigation.  In my view, this cannot be received as a business record pursuant to the exceptions in the Evidence Act.

22. I should add that Mr Hassett also submitted that the letter was not of a highly probative nature and did not have the necessary weight to overcome the evidence which had been sworn to in the trial.  It is, in my view, unnecessary to deal with that submission, because the documents and the statements in those documents are not admissible and there is no purpose in granting leave for them to be relied on in the appeal.

23. I turn then to the grounds of appeal.  The first two grounds are interlocked and, although they are expressed in terms of wrongful admission or wrongful rejection, I would read them as being directed to his Honour's acceptance of the respondent's evidence in preference to that of the appellant.  It is said by the appellant that his Honour was wrong to do that, or to take that course. 

24. There is preliminary difficulty with the submission, in that his Honour has clearly accepted the denial of the respondent, having seen him give evidence and be cross-examined.  The authorities make it clear that there are only rare cases which a  court on appeal can reverse a finding based upon the observation of a witness who gave evidence in the trial.

25. Leaving that to one side, his Honour was required to balance the sworn evidence against hearsay material that at times was general, at times not entirely clear and at times rather ambiguous.  Let me expand.  The evidence upon which most reliance was placed was the evidence of Mr Bulgak, who did enter the witness box.  He was a Russian who spoke on the telephone to a Mr Panteleev, who was described as the Deputy Director of the firm Carbamide in Moscow.  I should interpose the observation that the description of a firm as Carbamide appears more than once in the appeal papers but it would seem that it was a company that had a relationship with Agro Chim Export.  According to Mr Bulgak, he asked Mr Panteleev to confirm whether or not his company had supplied Semvilar with urea from 1991 to 1993 in accordance with the contracts.  He said that Mr Panteleev confirmed that the amount of urea supplied by his company under the contract was 20,000 metric tonnes.  This evidence appears in a typewritten statement, on which has been written the words “a written confirmation he did not send”.  Mr Bulgak was cross-examined and in fact had made another statement which amplified somewhat what Mr Panteleev said.  In that statement, he recorded the official as saying:

    “We signed only one official contract with Semvilar for 20,000 MT of urea for the rest are unofficial.  If we strictly according to the facts confirm the authentic amount of urea we supply to Semvilar, then it will be tantamount to pronounce ourselves guilty, to hurl ourselves willingly into the net, so I confirm only the official contract of 20,000 MT of urea supplied to Semvilar Pty Limited.”

26. The respondent in cross-examination secured the witness’s adherence to those statements and, although the appellant endeavoured to secure reference by the witness to unofficial contracts, he was unsuccessful in doing so. 

27. In his judgment, the trial judge expressed his understanding that the evidence of Panteleev’s statement was to the general effect that Agro Chim Export had breached the law in Russia, or perhaps the Ukraine, or both, or perhaps the former Soviet Union.  The statement, which was admitted into evidence, could be regarded as providing some material upon which a finding could have been made in the appellant's favour in respect of the shipment of 20,000 metric tonnes. 

28. The appellant also relied on statements made by Mr Ryaboi, who was described as the section chief of Odessa Coast Chemical Plant at Odessa but that evidence was at worst irrelevant and at best equivocal.  Certainly it would not support a finding that any urea, or any particular amount of urea, had been shipped by the respondent’s company.

29. The other statement upon which the appellant relies was one made by the secretary of the Director of Aspac Company, Ms Porntip Somphadourg.  She is said to have said that originally the contract signed by and between Aspac and Semvilar related to three times 300,000 metric tonnes and some later contracts for undefined amounts.  She was said to have been unable to supply the documents because her managing director, Mr Troshian, would not permit her to do so.

30. That constituted the substance of the evidence upon which the appellant relied.  Obviously, it was material of a hearsay nature given in respect of persons who could not be cross-examined and whose statements could not be tested. 

31. In weighing that evidence against the sworn evidence of the respondent, his Honour was impressed with the lack of any documentary evidence in respect of commercial transactions which, on any view, must have been documented in a number of respects.  It is, of course, unthinkable that there would not have been documents held at some stage by the respondent’s company dealing with shipments if in fact any took place.

32. I am unable to conclude that his Honour erred in any way in exercising his judgment in the way in which he did.  He was required to carry out a balancing exercise and to determine whether the weight of the evidence given in support of the appellant's case was sufficient to overcome the sworn evidence of the respondent.  His Honour concluded that he was not able to reach that conclusion and accordingly found for the respondent.

33. There was one other piece of evidence upon which the appellant relied and that was an admission said to have been made on 4 March 1991 by the respondent that there were eight cargo vessels transporting urea from the Soviet Union to China.  The respondent is said to have gone on to say that all is going well.  This evidence is somewhat equivocal but even accepting it at its highest against the respondent it was open to his Honour to take the course he did and to prefer the respondent’s sworn evidence to that admission. 

34. In the circumstances I can find no error in his Honour’s judgment and I would reject the challenges to it.

35. It is also said that his Honour misdirected himself in declining to grant leave for the issue of a subpoena to which I earlier referred.  The decision his Honour made was a discretionary decision and it seems to me to have been based on sound grounds and no reason has been shown or demonstrated for interfering with his Honour's exercise of discretion.

36. In the circumstances, I would reject ground three as well.

37. Accordingly, the appeal to this Court fails and I would propose that the Court order that the appeal be dismissed with costs.

38. PRIESTLEY JA:  I agree.  Mr Jiang, the appellant, has found himself in the difficult position of presenting his own case both at trial and in the appeal.  A further difficulty he has had has been the obtaining of evidence of a documentary and direct kind to support his case.  The result of the difficulties has been that he was unable to present to the trial court persuasive evidence to support his case and the trial judge made a finding against him which there is no basis for this Court to interfere with.  Thus, although one may feel some sympathy with Mr Jiang’s difficulties in the case, there can in my opinion be no doubt about the result, which has been explained in detail by Clarke AJA and which in my opinion is that his appeal must be dismissed with costs.

1. HANDLEY JA:  I agree with the previous judgments.

2. PRIESTLEY JA:  The order of the Court is therefore that the appeal is dismissed with costs.

LAST UPDATED:    19/06/2000