Magenta Nominees Pty Ltd v Webb - [2000] WASCA 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MAGENTA NOMINEES PTY LTD -v- WEBB [2000] WASCA 40

CORAM: MALCOLM CJ
KENNEDY J
WHEELER J

HEARD: 16 DECEMBER 1999

DELIVERED : 1 MARCH 2000

FILE NO/S: FUL 177 of 1997

BETWEEN: MAGENTA NOMINEES PTY LTD
Appellant (Plaintiff)
AND
FLORENCE EMILY WEBB
Respondent (Defendant)

Catchwords:

Appeals - Practice and procedure - Availability of evidence - Whether evidence fresh - Reason for non-production at trial - Presentation of fresh evidence to appeal court - Matters to be considered in determining whether to allow application to adduce further evidence and re-open appeal - Standard necessary before court will interfere

Legislation:

Nil

Result:

Motion dismissed

Representation:

Counsel:

Appellant (Plaintiff) : Mr R H B Pringle QC & Mr T Galic
Respondent (Defendant) : Mr R W Bower

Solicitors:

Appellant (Plaintiff) : Galic & Co
Respondent (Defendant) : Corsers

Case(s) referred to in judgment(s):

Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435
State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306

Case(s) also cited:

Autodesk Inc & Anor v Dyason & Ors (1992-1993) 176 CLR 300
Bryon Hull v Nguyen Van Cang, unreported; FCt SCt of WA; Library No 940216; 27 April 1994
Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134
Cox v Snowball & Kaufman [1930] VLR 325
De L v Director General New South Wales Department of Community Services & Anor (No 2) (1997) 190 CLR 207
Knight v Anderson (1996) 17 WAR 85
Masel v Semini, unreported; FCt SCt of WA; Library No 960383; 19 July 1996
Mulholland v Mitchell [1971] AC 666
Orr v Holmes (1948) 76 CLR 362
Piotrowska v Piotrowski [1958] 1 WLR 797
Smith v NSW Bar Association (1992) 176 CLR 256
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1981) 150 CLR 29
Wentworth v Wentworth [1999] NSWSC 638
Wentworth v Woolahra Municipal Council & Ors (1981-82) 149 CLR 672

MALCOLM CJ: In my opinion this motion by the appellant which seeks to re‑open this appeal should be dismissed for the reasons to be published by Wheeler J with which I am in entire agreement.
KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wheeler J. I am in agreement with those reasons and with the order her Honour proposes.
WHEELER J: In this motion the appellant seeks:
"1.The orders of the Full Court upholding the trial courts decision as to liability be recalled;
2.Leave be given for the Appellant to introduce into evidence on appeal the transcript of proceedings in an inquiry before the Real Estate and Business Agents Supervisory Board dated :
18 June 1999
9 July 1999
15 July 1999
16 July 1999 ('transcript')
3.The transcript be admitted as further evidence on appeal;
3A.Leave be granted to the appellant to introduce into evidence on appeal an affidavit of Clifford Dale Hindle sworn 14 July 1999 and the transcript of his evidence given on 25 August 1999 in proceedings in the Real Estate and Business Agents Supervisory Board of Western Australia No. 2 of 1999.
3B.Alternatively, that leave be granted to the appellant to call Clifford Dale Hindle to give evidence on appeal.
3C.Further alternatively, that there be a new trial of the question of liability of the appellant under section 52 of the Trade Practices Act 1974.
4.The Appellant have leave to amend the grounds of appeal in terms of the minute of proposed amended grounds of appeal;

5.That leave be granted for submissions to be made on behalf of the appellant with reference to State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306, 307, 321, 327-8."

The background to the motion is that after trial in the District Court in October 1997, the learned trial Judge found that there had been a misrepresentation by the appellant, which representation was conduct in trade or commerce and was misleading and deceptive. The relevant circumstances may be found set out in the judgment of the Full Court, delivered 29 October 1998. On the appeal, this Court upheld his Honour's findings in respect of liability, but substantially varied his findings in respect of the damage to be awarded the respondent. Although judgment was delivered on 29 October 1998, no order has been extracted for reasons with which it is not necessary to explain.
The evidence which the appellant seeks to introduce falls primarily into two categories. The first relates to the evidence of a Mr Hindle, and the second category relates to evidence given by Mr and Mrs Webb before the Real Estate and Business Agents' Supervisory Board.
So far as Mr Hindle is concerned, it is necessary to understand something of the evidence given at trial in relation to negotiations between the parties. The evidence of both Mr Chesson, on behalf of the appellant, and Mr and Mrs Webb on behalf of the respondent, was to the effect that Mrs Webb in early May 1990, telephoned Mr Chesson and had a discussion about taking the lease of a florist's shop. Mr Chesson came to visit her on 8 May 1990 and it was at this meeting that it was alleged that the representations were made. The representations related to work which it was proposed should take place to rearrange the layout of part of the shopping centre in which the florist's shop was located, which rearrangement was likely to lead to an increase in passing traffic and thereby to improve the profitability of the business.
In relation to the first discussion between Mr Chesson and Mr Webb, Mr Chesson's evidence at trial was as follows:
"I believe that 8 May, which was the date of the offer, was the time I spoke to Mrs Webb. I may have spoken to her on the 7th, but it was very proximate to the date of that. I think she had been calling the office and …"
He then said he only knew about calling the office "from the records". Told to "just deal with you personally" he said of the telephone discussion:
"We talked about the fact that the Horleys had vacated the shop, that Mrs Webb was interested in taking it back on and that she would be prepared to take the shop back on the same terms and conditions, including the rent, as the Horleys, provided that she could have a 6 month rent free period."
He said that they "may have" discussed a redevelopment clause which would be necessary to enable the rearrangement to take place. He said that as a result of their discussion, he went to see Mrs Webb on 8 May, taking with him an offer to lease which had been prepared by his staff on his instructions. On 8 May, he said there was not much discussion, the Webbs being in a hurry, although of the redevelopment clause he did recall being asked about it and saying that "the owners were keen to have the shopping centre redeveloped at some time in the future and therefore it was required to leave their options open…."
Mrs Webb's evidence, when invited to say what she had done once she learned from the Horleys that they were to vacate the florist shop, was to the effect that she telephoned Mr Chesson, and had a discussion broadly along lines similar to those indicated by Mr Chesson, but that on 8 May when she met with Mr Chesson, she specifically asked about the likelihood of rearrangement of the shopping centre and Mr Chesson made certain representations to her. More broadly, the thrust of Mr Chesson's evidence was to the effect that Mrs Webb had already made up her mind that she would take the shop and was keen to do so straight away, while Mrs Webb's evidence was more to the effect that she required persuasion.
In July 1999, solicitors for the appellant became aware, as a result of proceedings in the Real Estate and Business Agents' Supervisory Board that Mr Hindle, who had at the time been a Property Manager working from the offices of Chesson & Co, was prepared to give evidence that he had spoken to Mrs Webb some time prior to Mrs Webb's discussions with Mr Chesson, and that she had in effect agreed in conversation with him that she would take a lease of the florist's shop, that she had indicated terms which would be acceptable to her, and that a lease had been prepared on Mr Hindle's instructions. Mr Hindle was apparently of the view that arrangements had been made for Mr Torre to take the offer to lease to Mrs Webb to sign, and that it was at the last minute, because of Mr Torre's unavailability, that Mr Chesson went to see the Webbs.
It is submitted that this evidence could not have been discovered with due diligence prior to trial, the appellant's solicitor deposing that he had thought that Mrs Webb had left messages for Mr Chesson to call her back, as a result of evidence given by Mrs Webb in the District Court and as a result of instructions given to him by Mr Chesson about the procedures for answering telephones in his office. It is further submitted for the appellants that it is reasonably clear that if Mr Hindle's evidence had been available at trial and had been adduced, there would have been, or it is highly likely that there would have been, an opposite result: Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435. Alternatively and more broadly, the appellant submits that the evidence of Mr Hindle, together with other matters to which it points, lead to the conclusion that the interests of justice require a reopening of the issues in the appeal.
Taking the more narrow "fresh evidence" point first, I am not persuaded either that Mr Hindle's evidence could not have been discovered with reasonable diligence prior to trial or prior to the appeal, nor am I persuaded that the effect of the evidence is to cast sufficient doubt upon the respondent's case to require a reopening of the appeal. So far as diligence is concerned, it appears always to have been understood by the appellant that there was at least one, and possibly more, telephone communications by Mrs Webb before she spoke to Mr Chesson. Records showing when those telephone contacts were made and with whom would have been relevant and discoverable. Mr Chesson was plainly aware that records were kept, but no attempt appears to have been made to give discovery of them. Nor, even though Mr Chesson himself referred in evidence to previous telephone calls to the office, does there seem to have been any enquiry on the part of Mr Chesson or his solicitors directed to ascertaining to whom Mrs Webb might have spoken or what the substance of her enquiry might have been. Given that the appellant's case was always that Mrs Webb was keen to take a lease, and that the forming of her early enquiries may have been relevant to this issue, "reasonable diligence" would have required such enquiries.
So far as the effect of Mr Hindle's evidence is concerned, the appellant suggests that if believed, it necessarily entails the conclusion that Mrs Webb was untruthful in her evidence at trial. The odd thing about this submission is that it appears that Mr Hindle's evidence is inconsistent also with the evidence given by Mr Chesson at trial. Mr Chesson's evidence that the lease was prepared on his instructions is contradicted by Mr Hindle. More importantly, Mr Chesson gave evidence of a detailed conversation between himself and Mrs Webb over the telephone involving the terms of a potential tenancy, in a manner which appears to be inconsistent with the proposition that all these matters had already been discussed with Mr Hindle and that Mrs Webb was simply explaining to Mr Chesson something that had already been largely agreed. It is difficult to accept the proposition that an account which casts doubt on the evidence given by each of the relevant witnesses to the critical conversation necessarily suggests that the trial Judge erred in preferring the evidence of the witness whom he did prefer.
Further, Mr Hindle's evidence, if accepted, would tend to suggest that in her initial discussion with him, Mrs Webb indicated that she definitely wished to take a lease of the shop. While it is a matter which would be desirably explored in cross‑examination of Mrs Webb, such an indication is not necessarily inconsistent with the proposition that when Mrs Webb spoke to Mr Chesson, she was not at that time certain whether she wished to take the lease or not and that, in order to resolve her doubts, Mr Chesson made the representation alleged.
The other evidence upon which the appellant seeks now to rely is evidence given by Mr and Mrs Webb at the hearing before the Real Estate and Business Agents' Supervisory Board. That evidence is "fresh", in the sense that the hearing took place well after trial and after the appeal. The evidence related to questions of when Mr Webb first saw an air‑conditioner, and the date on which a cheque was given to Mr Chesson. There was at trial a dispute about the date on which the cheque was given to Mr Chesson, and his Honour perceived there to be a difference in evidence as to the date on which the air‑conditioner was seen, although the evidence is somewhat ambiguous in this respect.
The evidence given by the Webbs before the Board was different from the evidence they gave (or in the case of the air‑conditioner appeared to give) before the District Court in relation to the dates on which those events occurred, and was consistent with the evidence which Mr Chesson gave in the District Court. It is not suggested that the evidence of the Webbs in relation to these matters before the Board was itself necessarily inconsistent with the account Mrs Webb gave of her conversations with Mr Chesson and of the representation which he allegedly made. Rather, these matters are referred to as now casting a significant doubt upon the credibility of Mr and Mrs Webb or upon the accuracy of their recollections. Further, it is submitted that these were disputes in relation to which his Honour preferred the evidence of the Webbs and that his Honour placed considerable significance upon them in his reasons for decision.
Taking the last point first, in my reasons for decision in relation to the appeal, I said of these issues:
"Although his Honour commences his findings by reference to these matters, it seems to me that the central portions of his Honour's findings are those to which I have referred [dealing with the inherent likelihood, having regard to certain background circumstances, that the issue the subject of the representation would have been discussed]."

I am still of that view. While these matters were seen by his Honour to be of some significance, it was not my impression that they were critical to his findings.

The fact that Mr and Mrs Webb gave evidence before the Board which was in some respects different from their evidence at trial, in relation to matters which were not of critical significance, is in my view not surprising and does not cast a doubt upon the outcome of the trial sufficient to justify a reopening of it or of any issue in this appeal. The evidence before the Board was given three years after the trial and more than nine years after the events the subject of the trial. The Webbs are conceded to be elderly (we were informed from the Bar table, without objection, that Mr Webb is now in his 80s). The existence of discrepancies in the evidence, in those circumstances, might reasonably be seen as consistent with the behaviour of an honest witness attempting to recall details of matters now some time in the past. In those circumstances, sequences and dates can easily be forgotten: it may well be that the evidence which the Webbs gave more recently is inaccurate, rather than, as was submitted by the appellant, accurate. In any event, exploration of those issues at this time appears to me not to be in the interests of justice.
Reference was also made in the affidavit material filed in support of the motion to the evidence before the Board of Mr Zyrucha and Ms Francis. As I understand it, their evidence, which was to the effect that both Mr and Mrs Webb, at one time or another, telephoned Woolworths seeking information from them in relation to the issue the subject of the alleged representation, was alleged to be inconsistent with the evidence which the Webbs gave at trial, which was to the effect that they had not discussed the matter with Woolworths' management. However, it is plain from the evidence of those witnesses that the enquiries made by the Webbs were made well after the lease was taken and at a time when a dispute with Mr Chesson had arisen, and that neither Mr Zyrucha nor Ms Francis provided the Webbs with any information whatsoever. In ordinary language, it would not be inconsistent with that evidence for the Webbs to say that they had not "spoken to" Woolworths about the issue.
Reference was also made by the appellant to evidence before the Board that the Webbs had spoken to other people who might have had knowledge about the issue the subject of the representation. The question of whether the Webbs had some source of information other than the representation allegedly made by Mr Chesson was canvassed on the appeal, and this evidence does not in my view shed fresh light upon that question.
Finally, the appellants refer to State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 as authority for the proposition that an appeal may be successful if it appears that the trial court has failed to give sufficient attention to all the evidence of the case. I do not understand this to be a new proposition, and I do not understand it to be inconsistent with the reasoning contained in my reasons for decision on this appeal, particularly at pp 4 ‑ 5.
In my view, the evidence in relation to Mr Hindle cannot be characterised as "fresh" evidence. The evidence of the Webbs before the Board, although fresh, relates to issues which were of limited importance. None of the evidence to which reference is made by the appellant at the hearing of this motion is such as to suggest that, had it been led at trial, an opposite result must have been achieved or alternatively that an opposite result was reasonably likely. I would dismiss the motion.