Marshall and Rankin Pty Ltd v Neal

[1994] QCA 233

IN THE COURT OF APPEAL	[1994] QCA 233
SUPREME COURT OF QUEENSLAND

Appeal No. 217 of 1993

Brisbane

Before The Chief Justice

The President

Mr Justice Demack

[Marshall and Rankin v. Neal]

BETWEEN:

MARSHALL AND RANKIN PTY LTD

Appellant

-and-

FRED NEAL and RANALD NEAL

Plaintiffs

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 28/06/1994

I have had the advantage of reading the reasons prepared by the President and Demack J. and am able to express my general agreement with both. I wish to add very little.

Each side contended below that an agreement for the execution of work had been arrived at, the difference between them being in respect of the rate of remuneration which was claimed to have been agreed. The jury, by their answers to the questions, showed that they accepted that there was a final agreement in respect of the rate so that it was not necessary for them to decide what a reasonable rate would otherwise have been. The answers they gave effectively supported the trial judge's view that there was one principal issue in the case.

Neither side below dissented from the form of the questions put to the jury or sought any redirections which it is relevant to mention in view of the points argued on appeal.

The only other matter on which I desire to make an observation is dealt with by saying that it was clearly within the discretion of the trial judge to rule in this trial, where the issues were to be determined by a jury, that the evidence of witnesses called should be given orally unaccompanied by the tendering of written statements upon the matters to which they were able to depose.

The appeal should be dismissed with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 217 of 1993

Before Macrossan C.J.

Fitzgerald P.

Demack J.

[Marshall and Rankin v. Neal]

BETWEEN:

MARSHALL AND RANKIN PTY. LTD.

Appellant (Plaintiff)

AND:

FRED NEAL and RANALD NEAL Respondent (Defendant)

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 28/06/94

This is an appeal from a judgment in the District Court at Southport on 15 September 1993 dismissing the appellant's action against the respondents. The judgment was entered in accordance with the answers given by a civil jury to two questions which it was asked. The answers to those questions made it unnecessary for a third question to be answered.

The action started as a simple claim for payment "for the provision of earthmoving services during April and May 1991". The appellant's claim was that it had been agreed that the respondents would pay $160.00 per hour or that, if no rate had been agreed, that was a reasonable rate in the circumstances.

By their Defence and Counterclaim, the respondents required a jury. It is convenient to put the counterclaim to one side immediately. It was effectively abandoned, or at least substantially ignored or lost sight of, and the jury was not requested to bring in a verdict in relation to any of its variety of claims, which included money paid under a mistake of fact, "equitable monetary compensation", and "damages pursuant to section 82 of the Trade Practices Act". After the jury answered the questions asked of it, which all related to the appellant's claim, the respondents' counterclaim was dismissed and no appeal has been brought by them from that order.

When this appeal was argued before the Court, counsel for the appellant proceeded as though there were a number of complex issues raised by his client's action. That is not so. The Defence did no more than traverse the appellant's allegations and assert a different agreement, substantially that the agreed rate was 55 cents (later 60 cents) per cubic metre of earth moved. The appellant's Reply merely joined issue with the allegations in the respondents' Defence. It was the respondents' Counterclaim and the appellant's Answer which sought to raise more complex issues, which are no longer relevant for the reason given above.

From an early stage in the trial, the District Court Judge made plain his impatience with the complexity of the issues pleaded and his view that the only real issue was as to what the parties had agreed. Whether or not that was strictly correct having regard to the Counterclaim and Answer is now irrelevant. It was completely correct in relation to the appellant's claim, subject to one qualification; namely, the appellant's quantum meruit claim. The questions put to the jury, which are set out in the judgment of Demack J., comprehensively and accurately reflected this position. Further, that was the way the trial was conducted, and the questions were agreed to by counsel for both parties.

Accordingly, there is no merit whatever in the appellant's primary complaint that the Trial Judge wrongly withheld issues of fact from the verdict of the jury.

The next matter raised by the appellant was the trial judge's refusal to allow him to tender written statements by his witnesses rather than have them give their evidence orally. It was argued that the statements were admissible pursuant to subsection 92(1)(a) of the Evidence Act 1977, subject to the trial judge's discretion to reject them pursuant to subsection 98(1) of that Act. It is unnecessary to seek, in this case, to establish principles concerning how that discretion should ordinarily be exercised in civil jury trials. The very experienced trial judge's decision on this occasion was not only within his discretion but undoubtedly correct.

Another ground argued for the appellant was that his Honour's directions to the jury did not adequately put the appellant's alternative case, namely, that no rate had been agreed so that a reasonable rate should be determined and awarded. The underlying premise was that both parties were mistaken, the appellant believing that $160 per hour had been agreed and the respondents believing that the agreement was 55 cents per cubic metre. The foundation for this theory of mistake was an answer given by one of the respondents, Ranald Neal. This point disappears when a perusal of the evidence in question reveals no support for the appellant's theory. Not surprisingly, at the trial the appellant did not ask for any redirection.

The appellant's written outline of argument also complained of two objections to evidence which were overruled. However, this was not pressed in oral argument, and it is sufficient to say that the complaint is without any substantial foundation.

There is nothing in the appeal, which should be dismissed with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 217 of 1993

[Marshall & Rankin Pl & Ors v. Neal & Anor]

BETWEEN:

MARSHALL AND RANKIN PTY LTD

(Plaintiff/Appellant)

AND:

FRED NEAL and RANALD NEAL

(Defendants/Respondents)

The Chief Justice
The President

Justice Demack

Judgment delivered 28/06/1994

Each member of the Court delivering separate reasons, concurring as to the orders made.

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS:	CONTRACT - civil jury - whether agreement existed as to pricing mechanism - whether appropriate questions put to jury - whether deceptive and misleading conduct - whether estoppel raised - whether summing up correct.
Counsel:	Mr Lawrie for the appellant Mr Savage for the respondent
Solicitors:	Primrose Couper Cronin Rudkin for the appellant

Sly & Weigall Cannan & Peterson for the respondent

Hearing date: 10 June 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 217 of 1993

Before the Court of Appeal

The Chief Justice
The President

Justice Demack

[Marshall & Rankin Pl & Ors v. Neal & Anor]

BETWEEN:

MARSHALL AND RANKIN PTY LTD

(Plaintiff/Appellant)

AND:

FRED NEAL and RANALD NEAL

(Defendants/Respondents)

JUDGMENT - DEMACK J

Judgment delivered 28/06/1994

This is an appeal from a civil jury trial. To put the grounds of appeal in perspective, it is necessary to refer to the pleadings.

Marshall and Rankin Pty Ltd ("the Company") commenced proceedings against Fred Neal and Ranald Neal in the District Court in Southport claiming $80,307.00 for the provision of earthmoving services during April and May 1991. The plaint alleged an agreement made in January 1991 between Robert Marshall ("Marshall") and Daniel Rankin ("Rankin") acting on behalf of the Company, and Fred Neal acting on behalf of himself and his son, Ranald, that the Company would provide scrapers and a D9 bulldozer and perform services for the defendants at a rate of $160.00 per hour. It was alleged that work was performed, accounts submitted, part payment made and a balance was owing. Alternatively, the plaint alleged that if no rate was agreed for the work, $160.00 per hour was a reasonable rate.

By their defence and counter-claim, the defendants admitted the agreement to provide earthmoving services with scrapers and a D9 bulldozer, and the performance of the work, but denied the agreed rate was $160.00 per hour, and asserted the agreed rate was 55 cents per cubic metre of earth moved, which was later varied to 60 cents per cubic metre. The counter- claim joined Marshall and Rankin as parties, and asserted that prior to, at the time of and after the making of the agreement, they made a series of statements about the cost of the supply of the equipment and the performance of the services. It was asserted that the defendants acted on the assumptions or expectations which these statements raised and did so to their detriment. The statements were also pleaded as misleading and deceptive, and in contravention of s. 52 of the Trade Practices Act. The defendants asked for trial by jury.

The reply and answer extensively pleaded the evidence on which the Company would rely to maintain its assertion that the agreed price for the contract was $160.00 per hour. On some basis that is not at all clear, this evidence was said to raise an estoppel.

One of the grounds taken on appeal was that the learned and experienced District Court Judge wrongly described the case as a "one issue case". In this, his Honour was correct. There was no doubt that the Company was engaged by the defendants to supply equipment and to perform earthmoving work. There was no doubt that the equipment was supplied and work was done. There was ample documentation about that. The only part of the agreement which was in dispute was the price. Was it $160.00 per hour or 55 cents per cubic metre, later varied to 60 cents per cubic metre, or was it a reasonable price? There was only one question which could be answered in one of three ways. The extensive pleadings did not raise real legal issues.

They pleaded evidence which had to be considered if the "facts" about price were to be

determined. They did not raise questions of estoppel, or of misleading and deceptive conduct.

When the trial began, counsel for the Company sought to tender written statements made by Marshall and Rankin. The Judge rejected the tender saying that the jury needed to hear every single word of evidence. In this, his Honour was correct. A Judge hearing a matter may well decide, as a matter of discretion, to receive written statements, but where the whole of the case turns on a matter of credibility, it is important both to a Judge sitting alone, and to a Judge and jury, to have the opportunity to see and hear the relevant witnesses give their evidence. This is not because giving evidence is a memory test, but because demeanour is one of the significant factors relied on in determining credibility. Thus, it is important to see the witness giving evidence-in-chief and being cross-examined.

The evidence placed before the jury came from Marshall, Rankin, Fred Neal and Ranald Neal, and also from a solicitor, Mr Tobin, and an earthmoving contractor, Mr Hughes, who gave evidence about a reasonable price for the work.

Rankin gave evidence of handing to Fred Neal dockets with the Company's letterhead. The dockets showed the hours worked each day and were all signed by Fred Neal. This evidence obviously supported the evidence of Rankin and Marshall that the agreement was that the price was based on an hourly rate of $160.00.

Fred Neal gave evidence in support of the price being based on a cubic metre rate, and he was asked questions both by counsel for the plaintiff and by the learned Judge about why he signed the documents which showed the hours worked.

Ranald Neal gave evidence which became significant on appeal and may conveniently be quoted now. In his evidence-in-chief, he said (at p. 167) (the defendants had a contract with Mr Haire and the agreement with the Company was in the nature of a subcontract of part of that contract):

"And was there any other discussion then about the price for the machinery to
be used at South Giddi Giddi station for this contract with Haire?-- Well, we
said to them that we would give them the contract of 55 cents a cubic metre.

That allowed us 20 cents a cubic metre for the work we had to carry out.

Did you tell them how much you were quoting Haire?-- Yes, we did.

How much did you tell them you were quoting Haire?-- 75 cents a cubic metre.

What did they say in response to you saying that you'd give them 55 cents a cubic metre?-- They said that they would get their $160 an hour easily for their machines.

Now, what $160 an hour is that? Did they explain that to you?-- Well, they said that they were normally on $140 an hour and with the fuel supplied they'd be - they liked to get $160 an hour."

In cross-examination, he said (at p. 178):

"And you say that then the conversation turned to the rate?-- Yes.

And correct me if I am wrong, but it ran something like this: your father saying,
"We are prepared to pay 55 cents a cubic metre."?-- Yes.

No, I'm sorry at the outset them saying,'Our normal charge is [$]140 an hour plus fuel. With fuel we'll do it for $160 an hour.' You say your father comes back and says, 'We are prepared to pay 55 cents a cubic metre.' The response is then, 'We can easily get our $160 an hour at 55 cents a cubic metre.', and nothing much more is said about price?-- Yes."

After submissions from counsel, the following questions for the jury were accepted by

the Judge:

"1.	Did the plaintiff and the defendants enter into an agreement that the plaintiff was to perform certain earthworks at South Giddi Giddi Station for the defendants.
2.	IF YES TO QUESTION 1:
(a) Was the plaintiff to perform such works for the defendants at the rate of $160 per hour per machine,

or

(b)         Was the plaintiff to perform such works for the defendants at the rate of 55c per cubic metre of earth excavated later varied to 60c.

3.          IF NO TO QUESTIONS 2(a) AND 2(b):

Then in April/May 1991 what was a reasonable sum in the circumstances for the earthworks performed by the plaintiff for the defendants at South Giddi Giddi Station."

In his summing up, the Judge said:

"Now, it is obvious that there are two versions of what happened at Labrador early in January 1991 and you might think it's equally obvious that both versions can't be correct. Now, could they be? Two men are saying the plaintiff agreed to go out and work at 55 cents a cubic metre. The other two men are saying, 'We agreed to go out and work at [$]160 per metre.' How could they both be right? You might think there is no ground or possibility for a mistake. Either one set of witnesses is wrongly convinced that what they're saying is now true and they're just lying. Whoever you believe, if anyone, is a matter for you, not for me."

He then gave a lengthy direction about contemporaneous documents, correctly telling the members of the jury that they needed to be satisfied that the documents came into existence when they were supposed to come into existence, that they should then look to see when the documents came into the possession of the other party and what the reaction of that other party was to the documents. He then referred to the dockets and to Fred Neal's response to them. He left the issue for the jury, but there can be little doubt that the Judge thought the dockets supported the Company's case for an hourly rate, and that Fred Neal's response was unconvincing.

The jury answered question 1 in the affirmative, question 2(a) in the negative, and question 2(b) in the affirmative.

Various grounds of appeal were argued. As has already been mentioned, his Honour was correct in putting the case to the jury as he did. There was no proper basis for putting questions about estoppel or about misleading and deceptive conduct. The questions correctly identified the issues. Also, his Honour properly rejected the written statements of Marshall and Rankin, who then gave their evidence. No complaint can be made about this perfectly correct procedure.

What remains from the grounds of appeal centres upon the evidence of Ranald Neal, which has already been quoted. It was argued that on that evidence there was either a mutual mistake about price so that the contract was void ab initio, or that there was simply no agreement as to price. The third question left to the jury covered the latter possibility.

In the course of his summing up, the learned Judge said:

"Ranald Neal said there was a 55 cents offer and they said they would easily get that, which of course is an implied acceptance. So on either of the four versions there [is] no difficulty about finding an agreement because in each case there is offer and acceptance. Two of them relate to the 55 cents, and two of them relate to the $160 an hour

That observation compresses Ranald Neal's evidence, but when it is compared with the summary put in cross-examination, which has already been quoted, it is clear that the compression has not distorted the evidence. What was put in cross-examination involved an offer by the Company to pay for the fuel, to provide the equipment and to do the work for $160.00 per hour. There was then a counter-offer by Fred Neal of 55 cents per cubic metre, and an "implied acceptance" of that on the basis that the Company could easily get $160.00 an hour if it charged 55 cents per cubic metre. This evidence by Ranald Neal is to the same effect as that of his father. Ranald Neal's evidence does not suggest there was a mutual mistake.

Certainly there is no basis for saying that the agreement, which has been performed, was void ab initio.

When the whole record is considered, it is clear that the correct questions were left to the jury. The tenor of the summing up suggests that the answers given may have surprised not only counsel for the Company. However, the issues having been correctly left to the jury, the answers cannot be disturbed, as there was evidence to support them.

The appeal is dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 217 of 1993

Brisbane
[Marshall and Rankin v. Neal]

BETWEEN:

MARSHALL AND RANKIN PTY. LTD.

Appellant (Plaintiff)

AND:

FRED NEAL and RANALD NEAL Respondent (Defendant)

Macrossan C.J.
Fitzgerald P.

Demack J.

Judgment delivered 28/06/94
Judgment of Fitzgerald P.

CATCHWORDS:

Counsel:	Mr. B.A. Lawrie for the appellant Mr. D. Savage for the respondent
Solicitors:	Primrose Couper Cronin Rudkin for the appellant

Sly and Weigall Cannan and Peterson for the respondent

Hearing Date:  10/06/94