Medcraft & Anor v Rank Industries Australia Ltd trading as Rank Alarmco

[1992] HCATrans 312

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No PB of 1992

B e t w e e n -

JOSEPH MEDCRAFT and JOY

MARGARET MEDCRAFT

Applicants

and

RANK INDUSTRIES AUSTRALIA

LIMITED trading as RANK ALARMCO

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

TOOHEY J

Medcraft 1 16/10/92

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 16 OCTOBER 1992, AT 2.04 PM

Copyright in the High Court of Australia

MASON CJ:  Mr Medcraft, you appear on behalf of the

applicants, do you; yourself and the other

applicant.

MR J. MEDCRAFT:  Yes, I seek Your Honours' permission to

appear. May I?

MASON CJ: Yes.

MR R.G. WALTON: If it please Your Honours, I appear for the

respondent. (instructed by Messrs Bostock & Ryan)

MASON CJ:  Mr Medcraft, would you address the Court so that
we can record what you say through the transcript?

MR MEDCRAFT:  Yes, I do understand. I would like to hand to

the Court a book containing my documents to save
the Court's time in flicking from document to

document. It mainly covers the transcript of the

trial and the appeal. I believe I have four

copies, and four copies also of a deed. Is four

sufficient? It is, thank you.

At the trial the judge said that he preferred

the evidence of a Mr Allison and in less circumstances, a Mr Webb and a Mr Jones.

MASON CJ:  Mr Medcraft, in the first instance you need to

make an application to us for leave to present this

application, because under the rules there is a

provision that requires that applications for

special leave to appeal be presented by counsel

except in exceptional circumstances.

MR MEDCRAFT:  Yes, sir, and that is why, when I first

addressed you, I sought your permission - the

permission of this honourable Court to address it

and to - - -

MASON CJ: Yes. Well, you need to direct your remarks to

showing that this is a case of exceptional

circumstances.

MR MEDCRAFT:  I do understand, sir, the point you are

making. The circumstances of my appearing are

exceptional in this regard: that the trial was

lost on credibility grounds; the appeal was lost on

credibility grounds which I say were bad grounds,

and I am much more familiar with the circumstances

of the basis upon which I lost the trial and the

appeal. I also feel, as credibility was a factor

here, that it might be advantageous for me to

appear before the Court and I might be privileged
to be questioned on any matter arising from the

case of which I have personal knowledge.

Medcraft 2 16/10/92

I would possibly convince this Court that at

no time did I lie, and I would be happy to be

cross-examined on that factor.

MASON CJ:  We are not going to cross-examine you with a view

to testing your credibility. That is one thing we

will not do.

MR MEDCRAFT:  You will not, sir? I thought you would ask me

questions, et cetera, and I possibly wrongly

interpreted that as cross-examination.

MASON CJ:  No, the general rule is that credibility of

witnesses is a matter for the assessment of the

trial judge.

MR MEDCRAFT:  Yes, sir, and I do understand that, and that

was the attitude of the Full Court, but when that

credibility is based on factors which are so

blatantly wrong and error has occurred, and I am

quite confident I can convince this Court, if you

will give me 10 minutes of your time, that there

was error in the learned judge reaching that

conclusion. I will seek to prove it and I am

confident I can prove it with transcripts of the

case. The credibility factor was questioned by the

three judges of the Full Court, even by Mr Walton

for Alarmco who said that credibility probably

played no factor in the case.

When that comes from Mr Walton and when you have the three judges saying it, yet one judge then

turns around, as Your Honour has just said, that

credibility is a matter for the lower court. If

the Full Court will not consider my credibility,

even though they have questioned the basis upon

which it was determined, then I come here - as I

say, I can very quickly demonstrate to this Court

that the trial judge's ruling on credibility was

very, very ill-founded. It was very erroneous in

every way.

I can do this from the transcripts and I ask

for the privilege of being allowed to do so. The

point I am making is that if a judge is wrong on

credibility in the lower court - and I do

appreciate very much, that where a lower court

judge is faced with, say, a Mr White and Mr Brown,

and they are both telling different stories, and

there is no other documentary evidence to point to
who is telling the truth, then he must make, to put
it crudely, a gut feeling decision. But this was

not in this case.

He related to the evidence of this man and the

evidence which we have on the transcript shows that

the judge, Judge Williams, was gravely in error and

Medcraft 16/10/92

I believe that Chief Justice Malcolm would not have

said, at the appeal, that there was probably no

necessity for the lower court judge to make these

strong rulings in credibility.

MASON CJ:  Would you tell us very quickly then how you would

go about demonstrating that the finding on

credibility was wrong?

MR MEDCRAFT:  I would destroy the - I would show the

evidence of Allison, upon whom he based his

credibility finding, does not support his ruling in

any way.

MASON CJ: Would you do that very quickly?

MR MEDCRAFT:  Very quickly, yes, sir. May I refer you to

page 9:

Mr Allison, you said you commenced with Rank

Alarmco in what month?---! believe it would've

been August.

August 1981?---Yes.

And had you had previous sales experience

before that time?---Yes.

But not in Australia?---No.

The particular IEI6800 that we are dealing

with, had you had previous sales experience

with that item?---No.

That is what the case is about, this system, this

computer control system.

If I told you that the Rank client number for

Marjorie Young -

and so forth, made the second system in Australia -

or anything like that?---It means nothing to

me at all.

And you do not specifically remember any of

the discussions at Marjorie Youngs?---No.

That is an important point. He remembered nothing.

And you do not know whether the notice you

have been shown today are an account of all of

the discussions or some of the discussions?---

Normally, my notes would indicate what I -

what I'm quoting. I couldn't say that it

related totally to everything that was said.

Medcraft 4 16/10/92

His notes did not relate to anything that was said,

only to the building sketches layout and

what .... required to put in his computer control.

If I may, with respect - I should reflect to

page 2 - I am sorry, would you please kindly,

Your Honours, go to page 5. I am trying to select

as little as possible so as not to take up your

time.

If you look at that quote, Mr Allison, you

will see there is some crossing out?---Yes.

Do you recollect when that crossing out was

done?---Sorry?

Do you recollect when that writing was crossed

out in that manner?---That would have been
crossed out at the premises.

Why do you say that?---Because I wouldn't take a quote back crossed out.

And the trial judge made particular reference to

that and he mainly based his finding that I had

lied on that:

Why do you say that?---Because I wouldn't take

a quote back crossed out.

Now, this is in his reasons for decision.	We go
further down:

That's an option. You have heard that in fact

that option was taken up. Is that your

recollection?---Yes. Well, I say it's not my

recollection. I only know that from looking

at that document you showed me.

He is referring to .... and so forth.

The crossing out refers to two things: first,

"Carries manufacturer's warrant for a period

of 90 days"?---Yes.

Could you tell us why that would be crossed

out?---Well, that would relate to a total

system which would carry a manufacturer's

warranty. We were supplying the control panel

which belonged to Rank and there was an

existing alarm system in there, therefore

there was no warranty to be offered.

Now, he	has said that he would not cross out his
quote.	He is now saying it virtually had to be
crossed	out by the bottom paragraph on page 5. The
learned	judge referred to that as being the basis

Medcraft 16/10/92

upon which he assumed I had lied because he was

basing it on whether it was true that I had said

that I did not ask for the guarantee to be ruled

out; Judge Williams found that I had said, "I don't

want the guarantee, cross it out.", and you have

the man clearly saying that the guarantee was not
applicable and this he wrote across the quote "not

applicable" and signed it.

So, the judge was wrong in that major area

between Allison and I on which he judged our

credibility. That is one point. There is more.

On page 6:

Now, the second set of words opposite

Equipment, crossed out, "To ensure continuing

optimum efficiency of the system we recommend

preventative maintenance contract." Could you

tell us why that are struck out?---I can

only - I can only believe that the reason was

that it was not accepted or not wanted.

Now, the man is speculating there. It is

speculating honestly. What he is talking about

happened almost nine years before.

Now, I would like to jump to, with respect,

page 15. On page 15, "Client's operating

instructions for" the system, the subject of this

case, a computer control.	Now, the salesman had
this with him when he came to us.	He had no

previous experience of selling this model at all in

Australia. That is his evidence. He came and he

showed this to me - and this is not disputed -

"installed, maintained and monitored by: Rank

Alarmco", the respondent in this action.

Now, that indicates why the maintenance clause

was struck out. He showed me a document on his

first arrival in the hope of selling me the use of

this system and it clearly says, "installed,

maintained and monitored by" this company. So,

naturally he had struck out the maintenance clause.

There is something also interesting about his

striking out of the clause. The part of the clause

on warranty or guarantee and maintenance was struck

out by continuous lines. He had said, in the first

instance, that he would not alter a quote; he has

then said he virtually had to strike out the one on
the warranty and the part of the clause also on

maintenance was struck out with the same straight

lines and it is supported by a document on page 15

that maintenance was just not a factor.

Why should the salesman try to sell me a

contract to maintain the system which he already

agreed they would maintain? The learned judge did

Medcraft 6 16/10/92

not find that.	He found I had lied about this
maintenance.

TOOHEY J:  Was it your case, Mr Medcraft, that the

respondent undertook to maintain the whole of the

system, both what was there before and what it

installed itself?

MR MEDCRAFT:  Sir, this case is purely and truly about the

IEI6800. That was the system that failed. My

system, at they refer to it, is a bell, a siren, a

silent heat detector and little more I can think

about at the moment. It is not about my system.

My system worked after the break in. When my wife

walked in - and it is not challenged - it was on

the computer printout - the alarm went off.

Now, the system that failed was a system that

Rank had loaned to me. They did not sell it to me. A computer control, they put it in a big steel box,

locked up and I was not allowed to touch it. This

is not disputed. This is in no way disputed. Let

me just cut in there quickly, and I will come back

to that, sir.

At the start of this case nine years ago

Rank's defence was that they at this meeting -

Allison had agreed to give me a warranty. That is

the first clause of the paragraph he struck out.

And I had refused the maintenance offer. That went

for some time and then in the second defence to the

effect that I had asked for both clauses to be

struck out. They are not content with that. When

I found this document in my shop which says,

"installed, maintained by Rank", they changed their

defence. They changed it to say, "Yes, we maintain

this." Why did they not say earlier, "These are

client's instructions" - and they must have

hundreds of them~ Yet, while this was in their

office they were fighting a case for - right up

until the trial, they were fighting on the basis

that they had never said they would maintaine
anything. Allison had not said this, but how did

they know because Allison could not remember? It

was legal strategy, nothing more.

TOOHEY J: But when the matter went to trial, was it not on

the basis that the respondent admitted an

undertaking to maintain the equipment it had

installed but only to monitor the equipment that

was already there unless it was specially asked to

inspect and - - -

MR MEDCRAFT:  Yes, I am not quarrelling with that. I am not

challenging that.	The point I am making is they
only admitted this	a month or so before trial after
I found this in my	office and produced it to them.

Medcraft 16/10/92

So, what I am saying is why, for eight years, nearly nine, did they say they had offered no

maintenance at all, none whatever.	I have a copy
of the statements of defence there in the book.	To
repeat myself, for almost nine years they said,
"Mr Allison didn't promise any maintenance", and
then, as I say - I am repeating myself - when I

found the document, and after I found it they then,

as one could sy, they came to the party and

admitted maintenance.	They were always talking
about their system, not mine.	The case, the judge,

the lower court judge specifically states that he

is referring to the IEI680, as I call it.

TOOHEY J: But was that not the case against you, that there

had been a random failure that was attributable to

equipment already in existence which the

respondent had not undertaken to maintain and

therefore, in the view of the Full Court, there

could be no liability under whatever agreement had been made between you and the respondent? Is that

the way it was approached?

MR MEDCRAFT:  Yes, sir, I am so sorry, I have the answer to

that. It is in the book. The part of the system

that failed was the analyser; they installed it in

a locked steel computer.	I was not allowed to
touch it.	None of these things were disputed by
the other side.	They accepted responsibility, if

you look in the book, for everything that they

installed.	Now, they installed the analyser in
their computer box.	I was not allowed to touch it.

I could not anyway, it is highly technical.

Remember, sir, we are talking about a computer nine

years ago when they were a sort of space-age thing.

So I was very impressed with it. But to come back

to that: they clearly say they are responsible for

everything they installed. I do not have to prove

ownership though ownership has to be because I

could not instal it in that computer. They have

never asserted I did. They installed it, part of

their system and that is a part of the system that

failed.

That is why, sir, when it came to the appeal

they changed their stance again and they turned

around and said, "If we're responsible for the

failure of the analyser, if it is our's, if we

installed it, it wouldn't make any difference

anyway because maintenance would not have

prevented the failure. They were taking

out another insurance. They have gone from one

thing to another right through this case. Have I

answered your question, sir, on the content that the inertia analyser - and I have it in the book here, there is a whole area on it - if I may very,

very quickly dash over the pages - and I do know

Medcraft 16/10/92

your time is precious and you have given me the

privilege of addressing you. It is part of our

appeal that - "We say the analyser was part of your
box", we said to Rank, "and you installed it".

That was part of our appeal.

Now, if you have a few more minutes, I will

show you how, clearly, this analyser was part of

their computer, if I can just find the part. If

you will give me a few seconds. While we are at

it, sir, may I just quickly cut in? No, I had

better finish that particular point I was making.

At page 20, you will see there a letter from Rank

when they sold to Honeywell.	I will only read the
first paragraph:

We at Rank Industries, with a continued

concern for your security needs, have recently

concluded an agreement to merge with

Honeywell -

that was not true. At that time they had totally

sold out to Honeywell, and on the deed - I have the

date of the deed - it shows that that was a

corporate lie. I know it may not be related

directly to my particular case, but it shows that

Rank and Honeywell were prepared to write to

customers a deliberate lie to maintain their

business. I will jump now back to the one - I have

to prove to this Court that the analyser was a

total responsibility of Rank Alarmco.

I am looking for the part where it says

"analysers". I have emphasized - while I am looking

for this - I am not suggesting Allison or any
witness at the trial lied. I am simply saying that

the judge picked it up wrongly and, thinking that I

had lied, he would not listen to anything else

after that, quite rightly, too.

I would say, sir, also, if you have the time

to further listen beyond what we are talking about,

that it was not random failure. They put in one

analyser and it failed three times in approximately

a year. They had to expect it because the system

needed two, and I have said the system would not
work with one, and Mr Walton said it would not work
with one in the book, his words; but Webb tried to
work it with one and could not. So, he

disconnected the back and set it up with one at the

front, those are his words in the book, the point I

had been arguing.	The system would not work with
one analyser.

They put in one for several years, and it

failed, as I said, three times. They put in the

second one and it worked beautifully ever after.

Medcraft 9 16/10/92

TOOHEY J:  But the Full Court seems to have accepted that on

the evidence there was a random failure of the

analyser.

MR MEDCRAFT: Sir, the Full Court accepted that there was

random failure. But if you think about it, what

other failure, unless you could repeat before, is

anything else at random? I mean, if this mike

fails, it has to be random unless someone hits it

with a brick. The use of the word "random" there
was to indicate to the mind of the court - the word

they were trying to plant there was unexpected

failure. That is how they used the word "random";

the same as the way they used "self-testing".	They
used the word "self-testing" - I replied in my
evidence what I meant by "self-testing", I went

through the whole motion. Self-testing to me was a
testing that is described in that booklet. That is

all. I have said in my evidence - I did not

suggest the system was automatic or thought for

itself, I only said you turned the key to the

right - and you turn it to the right and it works.

The man who sold me the system said you test

it yourself, and this is in the book. You do it

every night, you test it yourself, with the help of
the man in the monitoring room. So, the word

"self-testing" was put in another vein by learned

counsel. He put it in the vein of the system

itself, in the middle of the night or any time -

those are my words - it tests itself.	I never
meant that. Allison never meant that.	He said,

yourself, you self-test it. But that word was

distorted to make out that I had lied. So,

self-tested was a misuse of the word. Random

failure - as I say the analyser, the one analyser

had failed three times in just over a year. It

might have been a bit longer; it may have been

18 months. So, there was nothing random about

that.

If they expected the system to fail, it should

have been the analyser they expected to fail and it
failed because they did not maintain it, and I am not talking about testing, I am talking about the

control analyser - it is in the evidence - it has

ball bearings that run back and forward on

vibration. They need, obviously, to be oiled and

kept going; contacts need to be cleaned and wiped

for corrosion, iodizing and so forth. We got no

maintenance from Rank in two years. All we got was

when we had maybe a break-down and we wanted - they

recommended the extension of the system. I said,

"Yes, go ahead and extend it." They recommended it

and I would say, "Yes", but they never once came

and maintained that system, and they can produce no

evidence that they ever came once.

Medcraft 10 16/10/92

The deal when Allison came to me was, "We will

put you in the computer control", and I have said

this from the word go, I have not changed my story

like Rank has. I have always said that they said

to me, "We have the best system in the world".

They challenged that for years until the witness,

Dickinson, their expert, went in the box, and that

was ..... , he said at that time it was the best

system in the world, adding some credence to what I

had said earlier.

On top of that, sir, at that meeting they said

to me, "We'll pay for maintenance of this system"
as they have got on the thing, but "you pay for it.

You pay for the labour, you pay for the parts."	I
agreed, and that is how it worked.	I paid for the

labour; I paid for the parts to maintain their

computer.	I say, with due respect, the judge did
not simply get it wrong.	He got it all wrong.

If I may, without in any way trying to run

anyone down, I had a very, very junior barrister -

it is not an excuse, I know; it may be a sound

explanation - who was faced with a leading QC and a
senior member of the bar, and if the judge did not

get all the facts right, I think some of the blame

must go to that junior barrister. I tried to

prompt him on a number of occasions, and I was told

by the judge, "Go and sit at the back of the

court."

Now, sir, I hope I have convinced you of, one,

there were no lies involved by anyone. The

analyser was positively - I had better look in this

book. It might be in this one. They should all be

the same.	I am looking for the section where it
says the inertia analyser.	What was the motive?
Why would I have lied about what Allison said?	I
had no reason to lie at all. If I were going to
lie, sir, when I was asked, "Did you see what he
did in the box when he came, Mr Webb came?", that
is when I would have lied.	I would have said,
"Yes, he didn't do this; he didn't do that."	I
did not~ I said, "I did not see it."

Judge Williams' implication is I lied, my wife

lied; two. members of my staff came forward whom I

had not seen for two years, and they lied.

MASON CJ:  Now, Mr Medcraft, I think we understand the case

that you are putting on this aspect of it.

MR MEDCRAFT:  Sir, may I find the piece about analysers. I

would like you to hear it. If you can spot it in
the book I would like you to point it out. Yes, 'I

have it. Page 37, please, if Your Honours would be

kind enough:

Medcraft 11 16/10/92

Was anything else done at the same time?---At the same time I believe he - I believe they

changed the analyser in the control box.

Who is this speaking? This is Mr Jones, I believe.

No, it is myself. Right. Now, we go over the page

to page 38:

Incidentally, do you normally give your customers access to your control boxes?

This is Mr Banks speaking, of Wormald or Chubb?

Wormald. He says:

Definitely not.

So, we now have a situation where the analyser

which failed is in the box.	I am not allowed to
touch it.	I am not allowed to service it. They do

not service it for two years. Honeywell does not

service it at all. Then when it fails they go to

court with a defence - the statement of defence

says, and they have been saying it for nine years

now - no, sorry, six - "It failed because it wasn't

maintained." Well, when they realized that one was

worn out, they came to court and argued a conflict

with their own defence:	"Maintenance would not
have mattered anyway.".	So they have changed

their story for the fifth time; maybe four - one,

two, three four - five times they have changed the

story, apart from the fact they started off by

telling us a lie.

Right. Now, here, sir, we are on page 39:

I then phoned Sydney or Melbourne - I forget

which; the head office of Honeywell - and I

said, "Why should I have to pay for an

analyser which is part of your control box and

locked into your control box?" The

person - - -

So, it was locked in the box.	Now, we go to
page 40.

MASON CJ:  Now, Mr Medcraft, we have been very patient with

you.	We have listened to you for some time on this
issue.	You have got, I think; to face up to the

fact that in order to get special leave to appeal

you have got to point to the existence of some question of law that is of general importance. This case, at the moment, seems to be a case that

depends entirely on its own facts, on an assessment

of the credibility of witnesses. It does not seem

to depend on any general principle of law.

Medcraft	12	16/10/92
MR MEDCRAFT:	Yes, I see your point, sir.	And the point I

was making at the beginning is, in general terms:

what happens to a citizen who goes to the lower

court, and if you assume, and he is knocked back on

credibility - he loses the case - and let us

assume - I am not going to anticipate your

decision -	let us assume the judge was wrong.	He
is finished.

MASON CJ:  He has got a right of appeal to an intermediate

Court of Appeal.

MR MEDCRAFT:  And what do they say? They turn around and

say, "We do not alter or upset credibility

rulings." They say it very strongly. In fact, the

judge in this case said, "There's no credibility

involved. It's in the book."

MASON CJ: Yes, but, Mr Medcraft, this Court cannot take up

all the cases which depend on issues of fact.

MR MEDCRAFT:  I accept that. Fair enough, sir.

MASON CJ: This Court's jurisdiction is exercised - - -

MR MEDCRAFT:  Thank you for your direction, sir.

MASON CJ: This Court's jurisdiction

MR MEDCRAFT:  I would -

MASON CJ: Will you listen to me for a minute?

MR MEDCRAFT:  Yes.

MASON CJ: This Court's jurisdiction is exercised in cases

where there are important questions of law which

need resolution, that is, important questions of

principle that need resolution. Now, you really

need to point to such a question if you are going

to succeed in obtaining special leave in this case.

MR MEDCRAFT:  Thank you for your advice, sir. Page

64,"Submission on principle of law":

If the Full Court decision is allowed to stand

do we have that, sir?

the precedent created is undesirable. This is

because it opens the way for any maintenance
provider to defend its neglect to service or

maintain an aircraft, a motor vehicle, a

computer -

as in this case -

Medcraft 13 16/10/92

or other technical device, by claiming that,

as a defence, breach of its maintenance

obligations did not cause or contribute to the

failure of the device, because maintenance

would not have guaranteed that failure of the

item would not have occurred. Furthermore,

the said maintenance provider would be under

no obligation to produce supportive evidence.

As Judge Wallwork said, Alarmco has produced

no evidence whatever to support their allegation

that maintenance would not have prevented this

failure. Judge Wallwork says it in his reasons.

So, here we have them, all along, saying

maintenance is absolutely essential. Then at the

last minute, one minute to midnight, as it were,

they turn around and say, it would not have

mattered any way.	They did not say that in the
lower court.	They did not say that at the trial.

They are just saying it at the last minute, in

contradiction to their own defence.

Now, that is a question of law, I say, because

if a company, as I would say, a provider, can

simply turn around and say - well, say, Qantas:	a
plane crashes; another company is supposed to service it. That company can turn around and say,
"You prove that we did not service it.	We took

your money. You prove to us that servicing would

not have caused the plane to crash." The onus, as

Judge Wallwork said, is on the provider, to prove -

it was his opinion, of course, I accept that - that

the lack of that maintenance did not cause, in my

case, their computer to fail; in the case of an

aircraft, for the aircraft to come down. If they

neglect and take the money, there is no point in

them turning around and saying, "You prove it"

because you have another instance, sir, your

aircraft in the air force are highly maintained but

they crash, 35 in five years. But that does not

give providers of maintenance grounds to turn

around and say, "We take your money, we don't do

any maintenance", as Rank did not, for two years.

Honeywell did not, to turn around and say, "You

prove that they are not maintaining it, we were to

blame."

No, the boot is on the other foot, I say. It

is up to them to prove.

MASON CJ: Well, we understand the point.

MR MEDCRAFT:  Thank you, sir. That is the point of law I

make. Now, I quickly go on to another one,

"Submission on unstamped deed", which is in front

of you, the blue packet. That is page 65.

Medcraft 14 16/10/92

MASON CJ: Yes. Well, we have read that.

MR MEDCRAFT:  You have read that about the unstamped deed,

sir?

MASON CJ: Yes.

MR MEDCRAFT: Right. Well, that will take less time. I

have read the Stamp Act. My interpretation of it

is the Stamp Act is there to protect the

Commissioner, and that if a document is lodged - this document was tendered - and I have it all here

where it was tendered and when it was tendered. It

was tendered, unstamped - it was tendered by

Mr Walton. He did not inform the court it was

unstamped, as the Act requires him to do.

At that point the judge should have asked for

an undertaking because he was not satisfied that it

was stamped. Now, the Act clearly makes that

point. If he is not satisfied that it is stamped,

then he asks for an undertaking. And, of course,

we refer to Kia Ora Gold Corporation v Washer

which is at page 52 - no, 50, I am rushing too

hard. Page 53 is Kia Ora Corporation.

Now, it as simple as this, sir:  I do not want

to go in deeply to law with High Court judges. I

have read the Act and it is quite clear, if it is

unstamped and the judge is not satisfied that it

has been stamped, then he gets an undertaking. And

if it turns out to be stamped, it costs the person

who tendered it nothing.

MASON CJ: Did you raise this question before the

Full Court?

MR MEDCRAFT:  I beg your pardon?

MASON CJ: Did you raise this question before the Full Court

of the Supreme - - -

MR MEDCRAFT:  I did not, and there was a reason for that,

sir.	The reason was that it was not objected to by
my counsel in the lower court.	And I was told that

if we do not take up an issue in the lower court,

you cannot take it up in the Appeal Court.

MASON CJ: Ordinarily speaking, that is correct.

MR MEDCRAFT:  Now, it was not raised in the lower court

because it is unethical, against etiquette, for a

barrister to object to an unstamped deed.

TOOHEY J: Mr Medcraft, could I just ask you this: looking

at the material you have given us, at page 52, the

Medcraft 15 16/10/92

very top of the page, there is a question by

Mr Pringle:

Mr Medcraft, I asked you before lunch whether

you had read a copy of an unexecuted deed

between Honeywell and Rank?

Is that the document you are talking about?

MR MEDCRAFT: That is one document where I was

cross-examined on, the deed.

TOOHEY J: Just a moment. Is that the document that you are

saying was unstamped?

MR MEDCRAFT:  No, sir. That is the deed that we are

referring to. That is the one that was unstamped.

I am sorry. I am so sorry, I beg your pardon.

TOOHEY J: But that was an unexecuted deed, was it not?

MR MEDCRAFT:	Pardon?
TOOHEY J:	It was unexecuted? Nobody had signed it.
MR MEDCRAFT:	I am sorry? It was unexecuted but it was

purporting to be a true copy - it was a discovered

document.

TOOHEY J: Yes, but

MR MEDCRAFT:  It was discovered and it was the - - -

TOOHEY J:  Just a moment. The transcript page to which I

took your attention suggests that the document that

you are complaining about as having been unstamped

was, in fact, a document that was not executed by

anyone.

MR MEDCRAFT: That is right, sir.

TOOHEY J: Well, in those circumstances, how do you suggest

there was an obligation to stamp the document?

MR MEDCRAFT: Sir, according to my reading of that, it does

not have to be executed, as long as it purports to

be a copy. Furthermore, if it is recognized to be

good - now the barrister for Rank and the barrister

for Honeywell agreed in open court that this

document was good between them and that is in

absolute contradiction and breach of the Stamp Act.

It clearly says that they will not agree a document

to be good unless they give an undertaking. It is

clearly in the Act, sir. This was a breach. They

were given this option right through the case and

at the end of it the commissioner lost up to

$50,000.

Medcraft 16 16/10/92

Now, I know the Act says it is not for the

benefit of the parties, but the Act does not say

that the parties must not benefit by it. The

position - in Kia Ora Gold, Sir John Romilly, I

think his name is - he made some very - - -

MASON CJ:  We are aware of that.

MR MEDCRAFT: You are aware, sir? That is why - - -

MASON CJ: Yes. Now, Mr Medcraft, I must say this to you:

we have been more than generous in listening to you

for this length of time. Is there anything further

you want to say in support of the application?

MR MEDCRAFT:	Yes, sir, there is.
MASON CJ:	Now, what is it?

MR MEDCRAFT: Credibility of Medcraft's submission.

MASON CJ: Yes. Well, you have dealt with that already.

MR MEDCRAFT:  I have not put my submission, sir.

MASON CJ: Yes, you have.

MR MEDCRAFT:  Very well, sir, I will not read it. It is at

page 61, sir. I shall leave it. I am happily in

the hands of the Court. Sir, I did say to you - on

page 62, I did say to you that Mr Walton said that

"credibility was no issue at the bottom of the

case". That is on page 62. Mr Malcolm says:

It seems probably unnecessary; it's

unnecessary for the judge to have made all

those rather strong comments about

credibility.

Submission on Non-Maintenance:

Maintenance of the IEI6899 computerised

control box was never carried out by Rank,

neither was it performed at any time by

Honeywell, for which Rank was responsible.

For about six years and at the trial and

appeal, Rank claimed that non-maintenance

caused the inertia analyser failure. However,

Rank also claimed at the appeal, in conflict

with its statement of defence, that

maintenance would not have prevented the

failure. There was no evidence, expert or

otherwise, to support Rank's sudden "about

face."

Right, submission on principle I have done.

Submission on the unstamped deed:  I am quite

Medcraft 17 16/10/92

confident that Rank was in breach of the Stamp Act.

I have read the Act and it is as clear - - -

MASON CJ: Well, you have told us that before. Now, as I

have said, we have been unduly patient in listening

to you.

MR MEDCRAFT: Well, sir, I have tried to be fast as I can.

I really have.	I have put the documents together
to save you time.

MASON CJ: Yes, I realize that. But now you have had a full

opportunity of presenting your application.

MR MEDCRAFT: Well, sir, I shall just quickly look and see

if there is anything I have missed. Am I entitled

to ask you, sir, is this Court convinced that the

analyser was part of the system? If not, I would

like to read my submission on it.

MASON CJ: That is a matter for us to consider.

MR MEDCRAFT: That is a matter for consideration, sir? All

right, sir.

MASON CJ: But we come back to this point which I emphasized

to you earlier: you must show that there is a

question of law of general importance involved before you can get a grant of special leave to appeal.

MR MEDCRAFT: Well, sir, I put it to -

MASON CJ:  Now, we have heard what you have said - - -

MR MEDCRAFT:  I am sorry, I thought you had finished. I am

sorry. I put it to you that I consider a very

important question of law and of public interest

that provider of maintenance cannot do that

maintenance and turn around and say, "Well, you

prove that we are at fault. You can't prove it.

The plane has gone."	I mean, that is a principle
of law.

MASON CJ: Yes.	Now, you have discussed that already.
MR MEDCRAFT:	I know, sir.
MASON CJ:	You are repeating what you said earlier.
MR MEDCRAFT:	Thank you for listening, sir.

MASON CJ: Thank you, Mr Medcraft. We will take a short

adjournment to consider the course we will take in

the matter.

AT 2.53 PM SHORT ADJOURNMENT

Medcraft 18 16/10/92

UPON RESUMING AT 3.02 PM:

MASON CJ:  The Court need not trouble you, Mr Walton.

The applicant seeks leave to present his

application for special leave to appeal in person

on the ground that the circumstances are

exceptional. They are exceptional, he says,

because he needs to establish his credibility as a

witness, the trial judge having rejected his

evidence. In our view, that does not amount to a

case of . exceptional circumstances.

Nonetheless, we have considered the matters

which the applicant would wish to raise in his

proposed appeal. We are firmly of the view that

those matters do not raise any question of general

principle which would attract the grant of special

leave. We would add that the Full Court itself

reviewed the evidence and concluded, by majority,

that the applicant had failed to establish a breach

of contract on the part of the respondent.

In these circumstances, the appropriate course

to take is that the application for special leave

A to appeal should be refused with costs.

AT 3.04 PM THE MATTER WAS ADJOURNED SINE DIE

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Medcraft 19 16/10/92