Johnstone v Top End Cars and Commercials Pty Ltd
[2014] NTSC 55
•11 DECEMBER 2014
Johnstone v Top End Cars & Commercials Pty Ltd [2014] NTSC 55
PARTIES:JOHNSTONE, Steven
v
TOP END CARS & COMMERCIALS PTY LTD
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21313082 LA1 of 2014
DELIVERED: 11 DECEMBER 2014
HEARING DATES: 17 JULY 2014
APPEAL FROM: LOCAL COURT
JUDGMENT OF: BLOKLAND J
CATCHWORDS:
APPEAL – Local Court – Unrepresented litigants – Damages for breach of contract – Magistrate proposed that action commenced out of time – Application to extend time unsuccessful – Claim dismissed – Error of law – Limitation not pleaded or claimed by respondent – Error in finding that the claim was out of time – Appeal allowed – Matter remitted to Local Court.
Limitations Act, s 12(1), 44(1).
Local Court Act, s 19(1)(b).
Couchman v Power and Water Authority (formerly known as) Northern Territory Electricity Commission No.196 of 1988 Angel J, applied.
Commonwealth of Australia v Mewett (1995) 59 FCR 391; Tracey Village Sports and Social Club v Walker (1992) 111 FLR 32; Johnson v Northern Territory of Australia [2014] NTSC (Full Court), referred to.
Peter Handford, ‘Limitations of Actions’, The Laws of Australia, 3rd Edition (Thomson Reuters, 2011).
REPRESENTATION:
Plaintiff:Self-Represented
Defendant:Self-Represented
Judgment category classification: B
Judgment ID Number: Blo1416
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINJohnstone v Top End Cars & Commercials Pty Ltd [2014] NTSC 55
No. 21313082
BETWEEN:
STEVEN JOHNSTONE
Plaintiff
AND:
TOP END CARS & COMMERCIALS PTY LTD
Defendant
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 11 December 2014)
Introduction
This is an appeal against a judgment of the Local Court dismissing a claim brought by the appellant for damages for breach of contract. The action was dismissed on the basis that it was commenced out of time.
The appellant alleged the breach of contract arose out of the purchase of a second hand motor vehicle from the respondent. The Local Court found the action was not commenced within the limitation period of three years, the relevant limitation period for actions based on breach of contract.[1] An application to extend time under s 44(1) of the Limitations Act, was made during the course of the hearing after the learned Magistrate determined the application was necessary. The application was unsuccessful.
Both parties were unrepresented before the Local Court. Both parties were also unrepresented at the hearing of the appeal in this Court. The single ground of appeal was:
“[The] Magistrate made a mistake in finding [that the] application was out of time”.
What was surprising during the hearing of the appeal was that the respondent agreed that an error had been made by the Local Court in determining the material date and that this error lead to the finding (erroneously as alleged by both parties in this Court) that the action was out of time. It has been difficult to ascertain from the parties how erroneous information of this kind may have been placed before the Local Court at the hearing. During the course of hearing the appeal, the respondent indicated that bank records attached to his submissions, that provided confirmation to him of relevant dates, were not before the Local Court.
This Court possesses jurisdiction to hear appeals from the Local Court, only in the case of a question of law.[2]
While the circumstances are unusual, in that, the respondent is adamant an error occurred as alleged by the appellant, it is necessary to consider whether there has been an error of law, noting that an error of fact cannot form the basis of an appeal to this Court.
Proceedings in the Local Court
What follows is a summary of matters of relevance to the single ground of appeal. Much of the evidence before the Local Court involved various complaints about the condition of the vehicle purchased by the appellant, including evidence alleging that the wrong vehicle was delivered to him. That evidence will be referred to here, only in as much as it is relevant to the single ground of appeal.
The Statement of Claim was filed on 27 March 2013. The matter came on for hearing in the Local Court on 12 September 2013 and was adjourned on a number of occasions.
Evidence was given by the appellant that he traded-in his previous vehicle and utilized it as a $2000 deposit on 6 February 2012; the full purchase price of the vehicle he bought was $11,990. From 6 February 2012, he made a number of payments by installment, telling the Local Court he, “owned the car from 6 March 2010”. In answer to a question from the learned Magistrate on whether he had “bought it on that date”, the appellant said, “No I was paying the off, (sic) your Honour”.[3]
The appellant gave contradictory evidence about the date that he took delivery of the car; a number of times stating the date of the “pick up” was 6 March 2010.[4]
He also qualified certain evidence about paying for the vehicle, stating he told the respondent he was going to withdraw money from the bank at the time of the purchase and that he paid the outstanding amount for the vehicle in cash.[5]
He was asked whether he “took delivery” of the vehicle at that time and answered, “Yes, because the vehicle wasn’t there at the time”. He was then asked if he paid for it in full before delivery of the vehicle and he replied, “Yep”.[6] The appellant also referred to amendments to details of the Bill of Sale that was before both the Local Court and this Court.
At the later hearing on 28 November 2013, on the point of the timing of the delivery of the vehicle, the respondent put to the appellant, and made submissions to the effect, that the final payment was not made by the appellant until 29 March 2010, not the earlier date of 6 March 2010. The answers given by the appellant about this subject ranged from non-responsive, to confirming that he took delivery of the vehicle on 6 March 2010.[7]
The respondent’s evidence was essentially that the appellant agreed to purchase the vehicle on 6 March 2010; that he then paid the vehicle off; and that the final payment was made on 29 March 2010.[8] The evidence was in a confusing state.
The case was listed for the decision to be given on 20 December 2013 but the parties were advised by the Court below that some “legal issues” had been found. The first time the limitation period was raised as an issue appears to be on 20 December 2012 in the following terms:
“HIS HONOUR: Gentlemen, I've listed this matter today for a decision. But because neither of you are lawyers and because neither of you have lawyers, I've found some legal points about this case, some legal issues. And I have an obligation that if I find legal issues, I've got to give the parties an opportunity to be heard. It's called natural justice. And if I don't do that, then I've got it wrong.
Mr Johnstone, you have some big problems with your case, some very big problems. Because you commenced these proceedings outside the three year period. And if you do that, then generally speaking, you can’t bring the proceedings in court because you're out of time. However, there are some legal provisions that may be able to help you, but they may not be able to help you. And so I'm going to give each of you a copy of the relevant pieces of legislation and also a decision by a judicial officer of the Supreme Court which sets out the requirements for an extension of time. So that's the first thing I do; one for each party please”.
The proceedings were then adjourned.
On 21 January 2014, the Local Court advised the appellant that the “law was against [him]”[9] and that he did not commence his proceedings within the three year period. There was discussion about the appellant being unable to obtain legal advice. The Local Court ruled that the claim was to be dismissed because the proceedings were commenced out of time and the appellant had been unable to persuade the Court that he should be granted an extension of time in which to bring the proceedings pursuant to the Limitations Act provisions.[10]
Written reasons for the decision were published on 16 April 2014. The reasons indicate that the Local Court proceeded on the basis that the Statement of Claim was filed later than three years from the date on which the cause of action was found to have accrued and that “by seeking an extension of time pursuant to the Limitations Act the Statement of Claim implicitly acknowledged that the proceedings have been commenced later than three years from the date on which the cause of action first accrued to the plaintiff”.
The reasons state that the Statement of Claim did not allege the appellant had been sold the wrong vehicle; however, because of the way the parties conducted their cases, that matter became a live issue. The relevant date was found to be the date the appellant said he had taken delivery of the vehicle and that, at that time, he believed the vehicle was not the same vehicle he had agreed to purchase. Consequently, the date the cause of action was held to have accrued was 6 March 2010, “or at the latest 3 or 4 days thereafter”. On this reasoning, time would have run on or about 6 March 2013, or a few days later.
Having made that finding, the reasons then briefly refer to the question of an extension of time under s 44(1) of the Limitations Act. It was determined that it would have been unjust to grant an extension of time because of the “real prejudice” that would be occasioned to the respondent if the action were allowed to proceed.
The Question of Whether There Has Been An Error of Law
As noted, both parties have been adamant during the appeal hearing that the appellant took delivery of the vehicle on 29 March 2010. If that date was the correct date, the question of whether the claim was out of time could not have arisen.
Although the evidence given in the Local Court was somewhat contradictory, there was some evidence, by virtue of how the appellant answered questions about the date of delivery of the vehicle that meant the finding of 6 March 2010, as the relevant date, was open. Had that been the only relevant issue, it could not be said that an error of law had been made.
The nature of an appeal of this kind was discussed in Tracey Village Sports and Social Club v Walker[11] where Mildren J summarised the position, relevantly as follows:
“It is necessary to bear in mind the limited powers of this Court on an appeal of this nature. The supervisory jurisdiction of this Court is limited to the question of whether or not there is an error of law. This Court has no jurisdiction to correct factual errors. Whilst the borderline between errors of law and errors of fact is notoriously difficult to delineate, as Gallop J observed in Tiver Constructions Ply Ltd v Clair (1992) 110 FLR 239, certain principles have become well accepted. In the process of arriving at an ultimate conclusion a trial judge goes through a number of stages. The first stage is to find the primary facts. This may involve the evaluation of witnesses who give conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact to be determined by him, and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies: R v District Court; Ex parte White (1966) 116 CLR 644 at 654; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Haines v Leves (1987) 8 NSWLR 442 at 469-470. Regardless of the trial judge's reasons, if there is evidence which, if believed, would support the finding, there is no error of law: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465.
If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute (for example, that injury by accident arose out of the course of the employment, or that the failure to give notice was occasioned by mistake), there is an error of law: Nicolia v Commissioner for Railways (supra); Tiver Constructions Pty Ltd v Clair (supra) per Martin and Mildren JJ (at 245); Haines v Leves (supra) (at 476); Azzopardi v Tasman UEB Industries Ltd (supra) (at 156). But, a finding of fact cannot be disturbed on the basis that it is “perverse”, or “against the evidence or the weight of the evidence or contrary to the overwhelming weight of evidence”. Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound: Haines v Leves (at 469-470)”.
On appeal, the parties were agreed, with reference to bank records and other documents, that the appellant entered into a contract to purchase the vehicle on 6 March 2010 and the trade-in allowance of $2000 was credited; on 15 March 2010 a cash payment of $600 was made and payment of $4400 was made through Eftpos; and on 29 March 2010 a cash payment of $2040 was made and a payment of $2950 was made through Eftpos. Further, it was agreed the appellant did not take possession of the vehicle until the final payment was made on 29 March 2010.[12] The respondent submitted that delivery of a vehicle would not take place without a final payment being made.
I conclude that notwithstanding the submissions before this Court, it was still open, in the sense of the authorities cited, for the Local Court to make the finding of fact that delivery of the vehicle, and discovery of being sold the wrong vehicle, took place on 6 March 2010.
The approach that was taken in the proceedings below, however, discloses error for other reasons.
Even if the relevant date for the purpose of time commencing to run was 6 March 2010 (given the finding that the date of discovery of the “wrong vehicle” was on 6 March 2010) and that the claim of 27 March 2013 was some 21 days out of time, there is ample authority for the proposition that a Statement of Claim should not be struck out, merely because the action appears to be out of time.[13] If the defendant does not plead limitation, a Court should not consider the matter of its own motion.[14]
In the Local Court, not only did the respondent not specifically plead the limitation by way of defence, but maintained that the appellant did not take possession of the vehicle until 29 March 2010. Thus, the respondent must be taken to accept the action was brought within time. The Local Court of its own motion required the appellant to make an application to extend time in circumstances where the appellant was not required to do so. The transcript reveals the appellant was unable to formulate a sensible or logical argument in favour of an extension of time.
As was stated in Couchman v Power and Water Authority (formerly known as) Northern Territory Electricity Commission,[15] the three year statutory time period bars remedies not rights, and bars remedies only if pleaded. Failure to plead the limitation amounts, at least, to waiver by a defendant, of reliance on the limitation period. There was nothing in the circumstances of this action that prevented the hearing proceeding to its conclusion on the merits. This was especially so when the respondent did not agree that the material date was that found by the Local Court. In my opinion, an error of law was made when the Local Court sought to resolve the proceedings by way of resorting to the limitation period, in circumstances when the respondent did not plead that the action was out of time and did not agree the action was out of time.
At the conclusion of hearing the appeal, I indicated to the parties that if the appeal was determined on the single ground filed, the matter would need to be remitted and considered further by the Local Court. Such a course appeared to be accepted. I will order accordingly.
Orders
The appeal is allowed.
The matter is remitted to the Local Court to be heard according to law.
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[1] Limitations Act, s 12(1).
[2] Local Court Act, s 19(1)(b).
[3] Transcript, 12 September 2013 at 10.
[4] Transcript, 12 September 2013 at 14.
[5] Transcript, 12 September 2013 at 16.
[6] Transcript, 12 September 2013 at 16.
[7] Transcript, 28 November 2013 at 43.
[8] Transcript, 28 November 2013 at 59.
[9] Transcript, 21 January 2014 at 2.
[10] Transcript, 21 January 2014 at 5.
[11] (1992) 111 FLR 32 at 37.
[12] Submissions filed on behalf of the respondent, 2 July 2014.
[13] See discussion and cases cited in, Peter Handford, ‘Limitations of Actions’, The Laws of Australia, 3rd Edition (Thomson Reuters, 2011) at 325.
[14] Ibid. See also, Commonwealth of Australia v Mewett (1995) 59 FCR 391, per Lindgren J at para [67], citing older authorities of Thursby v Warren (1628) Cro Car (79 ER 738); Stile v Finch (1634) Cro Car (79 ER 932).
[15] No.196 of 1988, Angel J; and see in the context of the limitation period under s 162 of the Police Administration Act as in Johnson v Northern Territory of Australia [2014] NTSC 18 (Full Court).
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