Johnstone v Top End Cars and Commercials Pty Ltd
[2017] NTSC 21
•17 March 2017
CITATION:Johnstone v Top End Cars and Commercials Pty Ltd [2017] NTSC 21
PARTIES:JOHNSTONE, Steven
v
TOP END CARS AND COMMERCIALS PTY LTD
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 2 of 2017 (21313082)
DELIVERED ON: 17 March 2017
DELIVERED AT: Darwin
HEARING DATES: 16 March 2017
JUDGMENT OF: GRANT CJ
CATCHWORDS:
CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH
Appeal from Local Court - whether question of law or question of fact – no reasonable apprehension of bias - want of prosecution – appeal dismissed.
Consumer Affairs and Fair Trading Act 1990 (NT) s 168
Local Court (Civil Procedure) Act1989 (NT) s 19
Supreme Court Rules 1987 (NT) rr 83.19, 84.13
Alice Springs Town Council v Mpweteyerre Aboriginal Corporation and Ors (1997) 115 NTR 25; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; R v Cartwright (1989) 17 NSWLR 243; Tiver Constructions Pty Ltd v Clair (1992) 110 FLR 239; Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32; Wilson v Lowery (1993) 4 NTLR 79, referred to.
REPRESENTATION:
Counsel:
Appellant:Self-represented
Respondent: A Downs
Solicitors:
Appellant:Self-represented
Respondent: NT Law
Judgment category classification: B
Judgment ID Number: GRA1702
Number of pages: 12
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINJohnstone v Top End Cars and Commercials Pty Ltd [2017] NTSC 21
No. 21313082
BETWEEN:
JOHNSTONE, Steven
Appellant
AND:
TOP END CARS AND COMMERCIALS PTY LTD
Respondent
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 17 March 2017)
This is an appeal brought pursuant to s 19 of the Local Court (Civil Procedure) Act (NT). The right of appeal is limited to questions of law.
The authorities in relation to whether an issue is one of fact or law are as summarised in Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37. That summary has been approved by the Court of Appeal in Wilson v Lowery (1993) 4 NTLR 79 at 84-85.[1] This court cannot enter into the fact-finding process undertaken by the Local Court except insofar as that process discloses error of law. An error of law will arise where the tribunal misdirects itself as to the law, or when the law correctly stated is misapplied to the facts as found in order to produce an erroneous conclusion.[2]
After hearing and determining an appeal, the Supreme Court may make such order as it thinks fit, including an order remitting the case for rehearing to the Local Court with or without directions on the law.
The proceedings below
The appellant’s claim was heard by the Local Court over the course of 29 February, 21 March and 28 April 2016. The matter was originally listed for decision on 17 October 2016. For reasons which were not disclosed, the court was unable to deliver its decision on that day. The matter was listed for decision on 31 October 2016. Again, for reasons which were not disclosed the court was unable to deliver its decision on that day. The matter was subsequently listed for decision on 19 December 2016.
The Local Court delivered oral reasons on 19 December 2016. Before delivering his reasons, the Local Court judge advised the parties that on the previous day he had been shopping for furniture items with his wife, and had purchased some items from a shop named Teak ‘N’ Cane. That shop was coincidentally owned by the principal of the respondent in this case (the defendant in the Local Court proceedings). That person had given evidence during the course of the hearing. The judge did not become aware of the principal’s presence on the premises until the purchase was made. The purchase was a routine commercial transaction. There was no conversation concerning the case. The contact was coincidental and transitory, and did not involve any extended or personal association.
Having described the interaction, the judge expressed the view that the contact did not give rise to any issue concerning an apprehension of bias but asked out of an abundance of caution whether either party had anything to say about the matter. Neither party sought to address submissions to the issue. That response was unsurprising, as in the circumstances described the judge could not be said to have any direct or indirect personal or pecuniary interest which might have given rise to a reasonable apprehension of bias in the mind of a reasonable observer.
The judge then went on to deliver his reasons. The circumstances, findings and reasons set out in the decision of the Local Court may be summarised broadly as follows.
The appellant (as plaintiff in the Local Court proceedings) claimed payment from the respondent (as defendant) in the amount of $14,704.88. By his particulars, the appellant claimed that he had purchased a Mitsubishi Triton utility (“the vehicle”) from the respondent on 6 March 2010 for the price of $11,990. The appellant’s principal complaint was that the vehicle was both different to the vehicle he had contracted to purchase, and defective in quality. He sought to recover damages comprising the purchase price and moneys allegedly expended in the registration and repair of the vehicle.
The vehicle had come into the respondent’s trading stock on 5 January 2010 as part of a trade-in arrangement in which the vehicle was allocated a value of $8,000. The odometer reading at that time was 101,570 km. The court found that both the appellant and the respondent’s salesman who dealt with the appellant in the relevant transaction (the homophonically named Mr Johnson), were poor historians in terms of dates. The appellant gave evidence that when he first saw the vehicle on the respondent’s premises at some time between January and early March 2010 it was in good condition. The appellant said that he took photos of the vehicle at that time, but those photos were subsequently misplaced. That assertion was subject to a number of findings by the Local Court, which are detailed further below.
The court found as a matter of fact that the vehicle was purchased by the appellant from the respondent on 27 March 2010, which was the time the final payment was made and the appellant took possession of the vehicle. It was a term of the contract of sale (presumably implied) that the vehicle would be roadworthy and of merchantable quality and fit for purpose. The vehicle was also subject to what was in essence a statutory three month warranty by operation of s 168 of the Consumer Affairs and Fair Trading Act (NT), the expiry date of which was 26 June 2010.
The written contract of sale carried a number of dates. It carried the signatures of the appellant and the respondent’s representative, with the date of 6 February 2010 endorsed in the signature blocks. The date endorsed on the top of the document was 6 March 2010. The document recorded that a deposit in the amount of $5,000 was made by the appellant on 13 March 2010. The document contained the further endorsement “balance $4,990”, apparently made after the appellant had paid certain further instalments after 13 March 2010. The phone number of the appellant which had originally been entered on the document had at some stage been crossed out and a new one added, and at some point details in the “Known Defects” section of the document were whited out. The Local Court observed that the state of the contract reflected poorly on the respondent’s representative in the transaction.
After considering a number of related documents, the court found on the balance of probabilities that the contract was first signed on 6 March 2010 rather than 6 February 2010, and the arrangement was that the appellant would take possession of the vehicle on payment in full of the purchase price. The respondent accepted a vehicle from the appellant as a trade-in which was valued at $2,000 for that purpose, and the appellant paid the $5,000 deposit on 15 March 2010. The final payment was made on 27 March 2010 and took the form of $2,040 in cash and $2,950 by way of EFTPOS transfer. Those amounts comprised the total purchase price of $11,990.
The court rejected the appellant’s contention that the respondent had somehow taken $4,400 from his account without authorisation. The court arrived at that conclusion having regard to the various statements of account and other documentary records received into evidence, and after careful scrutiny of the evidence given by the respondent’s representative in the sale transaction.
The court also received into evidence an invoice for work purportedly done on the vehicle by the Coconut Grove Auto Repair Centre on or before 12 March 2010 using parts provided by the plaintiff. The court found that having regard to the fact that the appellant did not come into possession of the vehicle until 27 March 2010, the date on the document had likely been altered in order to advance the appellant’s claim.
The appellant claimed further that on the day he made the final payment he was provided with a different vehicle to the one he had agreed to buy. In particular, he says that the vehicle with which he was provided on that day was a two-wheel-drive vehicle rather than a four-wheel-drive vehicle, and that it was damaged and degraded in ways that the vehicle he had agreed to buy had not been. He says that he complained about the matter, he was told to take the vehicle and leave or the respondent’s representatives would call the police, and he subsequently took the vehicle and left the premises for fear of being arrested. The evidence of the respondent’s representative in the transaction was that the sale and collection was routine and went smoothly.
On the appellant’s evidence concerning the circumstances in which the photographs he had taken of the vehicle at his first inspection were misplaced, he would at that time still have had possession of those photographs. The court rejected the appellant’s evidence concerning the existence of the photographs, and the appellant’s assertions as to what they depicted, on the basis that they would no doubt have been deployed in support of his assertion that the vehicles were different (if indeed such an assertion had been made at the time of collection), and in the event police had been called (if indeed the respondent’s representative did make a threat in those terms at the time of collection).
The appellant transferred the registration of the vehicle into his name on 31 March 2010, and the vehicle remained registered for approximately three years thereafter. Those facts were found to be contrary to the appellant’s assertion that he took possession of the vehicle in an unregisterable condition. The court also found that the registration was transferred into the appellant’s name within four days after the collection of the vehicle, and found inherently improbable the appellant’s assertion in evidence that he only had the registration transferred to his name for fear of criminal prosecution if he did not do so within 21 days.
The court rejected the appellant’s evidence that he had been “tricked” into withdrawing a complaint made to the consumer affairs authorities. That trick was said by the appellant to have been achieved by the consumer affairs inspector asking the appellant to sign a document, the content of which was purposefully covered by the inspector’s hand.
The court gave consideration to the appellant’s claim that the vehicle’s odometer had been “wound back” by the respondent’s representatives. The court accepted that the reading recorded at the time of the earlier trade-in on 5 January 2016 was 101,507 km and the reading recorded on 17 February 2010 was 101,801 km, but that it was recorded as being 101,278 km as at 6 March 2010. The court observed that it was difficult to see why the odometer would have been wound back less than 600 km, and that the most likely reason for the discrepancy was a failure to record the figures correctly. The court suggested that information was consistent with the respondent’s poor record-keeping generally.
The court went on to observe that it was significant that the odometer reading by 30 May 2013 was 141,402 km. That reading was inconsistent with the appellant’s evidence that he did not use the vehicle other than to drive it to repair shops, and on one occasion when he drove it to Far North Queensland at no more than 40 to 50 km/h due to its parlous condition. That evidence was inconsistent with the fact that the vehicle had travelled approximately 40,000 km in a little over three years from the time the appellant had purchased it. The appellant sought to explain that discrepancy by giving evidence that the odometer tended to “jump”, which was an explanation the court also found to be inherently improbable.
The court rejected outright the appellant’s contention that the vehicle he had originally inspected had been “rebirthed” as the vehicle with which he was subsequently presented. That rejection was predicated on the lack of any, or any cogent, evidence in support of the allegation. Similarly, the plaintiff’s documentary evidence said to establish the need for substantial work on the vehicle after purchase related to transactions which either had taken place too long after the purchase or were insufficiently particularised to be attributable to any defect existing in the vehicle at the time of sale.
The court determined to find against the appellant and “strike out the Statement of Claim”. It is unclear whether the intention was to find for the respondent and enter judgment in those terms, or to strike out the Statement of Claim on the basis that it did not disclose a cause of action or was vexatious. The orders ultimately made were that the plaintiff’s claim was dismissed, and that the plaintiff was to pay the defendant’s costs of and incidental to the proceedings at 100% of the Supreme Court scale.
The appeal proceedings
The appellant filed a Notice of Appeal on 5 January 2017. The grounds of appeal that may be discerned from the accompanying documents are as follows:
(a)the court below did not explain the appellant’s right to make application that the judge recuse himself for apprehension of bias;
(b)the court below made an error reading the bank statements tendered into evidence;
(c)the court below disregarded the evidence of Mr Alistair Johnson concerning payments made for the vehicle;
(d)the court below disregarded the tax invoice and work order from Coconut Grove Auto Repairs;
(e)the court below made assumptions concerning the appellant’s income at the time he paid for the vehicle; and
(f)the court below failed to give due weight to the fact that the appellant attempted unsuccessfully to return the vehicle on a number of occasions between 6 and 26 March 2010, and registered it thereafter in order to avoid incurring criminal liability for driving an unregistered and uninsured vehicle.
On a cursory appraisal, those grounds do not appear to disclose any question or error of law, with the possible exception of the ground described in (a). Even if one assumed that ground (a) did disclose some question or error of law, and that the appellant did not understand he could make application for the judge to recuse himself, there was no reasonable apprehension of bias for the reasons described above.
The matter came before the Registrar of the Supreme Court for directions on 31 January 2017. The appellant attended the directions hearing in person. The Registrar made the following orders at that time:
(a)The hearing of the appeal is listed on 16 March 2017 at 10 am for half a day.
(b)The appellant is to file and serve his Summary of Submissions and List of Authorities on or before 4 pm on 15 February 2017.
(c)The respondent is to file its Summary of Submissions and List of Authorities on or before 4 pm on 1 March 2017.
The parties filed summaries and lists in accordance with those orders. The matter came on for hearing at 10 am on 16 March 2017. The appellant did not appear at that time. The Sheriff’s officer attempted to make contact with the appellant on the telephone number he had previously provided for that purpose. Those calls went unanswered. The Sheriff’s officer called the appellant’s name three times in the foyer of the court. There was no appearance by the appellant in answer to that call.
Counsel for the respondent then made application that the appeal be dismissed with costs. I made orders in those terms and indicated I would provide written reasons. These are those reasons.
Disposition
The court makes the following orders:-
(a)The appeal is dismissed for want of prosecution pursuant to rules 83.19 and 84.13 of the Supreme Court Rules.
(b)The appellant is to pay the respondent’s costs of and incidental to the appeal.
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[1]See also R v Cartwright (1989) 17 NSWLR 243 at 252; Primary Producers Improvers Pty Ltd v Salomi Un (unreported, Supreme Court of the Northern Territory, Bailey J, 23 March 1998).
[2]See Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA (with whom Samuels JA agreed) at 155-6; Tiver Constructions Pty Ltd v Clair (1992) 110 FLR 239 at 245; Alice Springs Town Council v Mpweteyerre Aboriginal Corporation and Ors (1997) 115 NTR 25 at 32.
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