Morgan v Wurth Australia Pty Ltd

[2001] VSC 514

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7487 of 2001

TED MORGAN	Plaintiff
v.
WURTH AUSTRALIA PTY. LTD.	Defendant

---

JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 DECEMBER 2001
DATE OF JUDGMENT:	17 DECEMBER 2001
CASE MAY BE CITED AS:	MORGAN v. WURTH AUSTRALIA
MEDIUM NEUTRAL CITATION:	[2001] VSC 514

---

CATCHWORDS:      Appeal from decision of Magistrates' Court – No erro5r of law made by Magistrate – Application to state questions of law raised by appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Defendant	No appearance

HIS HONOUR:

1. Earlier this year the present defendant, Wurth Australia Pty Ltd, sued the plaintiff, Ted Morgan, in the Magistrates' Court at Melbourne seeking to recover the sum of $778.42 in respect of goods it alleged it had sold to the plaintiff and in respect of which it alleged the plaintiff had made no payment to it.

1. The matter came on for hearing before His Worship Mr Purcell on 8 August 2001.  The defendant was represented by counsel.  Mr Morgan appeared on his own behalf and called one witness to support his testimony, a business associate named David Goldberg.  At the conclusion of the hearing the magistrate found in favour of the defendant and ordered that the plaintiff pay to it the said sum of $778.42, costs of $1,069 and interest of $19.37. 

1. The plaintiff determined to appeal from the order to this court.  On 24 October the plaintiff made application to Master Wheeler under r.58.09 stating each question of law he contended was raised by the appeal.  The Master found that there was no arguable question of law demonstrated by the plaintiff and refused his application.  In his reasons for his ruling, Master Wheeler said:

"That transcript [referring to the transcript of the proceedings before the Magistrates' Court] records evidence (which I have sidelined) to the following effect:

(a)the appellant [the present plaintiff] was identified as the person who had ordered the relevant goods;

(b)those goods were subsequently observed at premises at which the appellant carried on business.

In that regard to the evidence, if accepted by the magistrate, it is unnecessary for a finding as to the opening of an account or credit arrangements."

1. The plaintiff now appeals from Master Wheeler's order to a judge of the court.  In his affidavit sworn 6 September 2001 and filed in support of his application, the plaintiff has identified three questions of law which he contends are raised by the appeal:

"1.The question of law shown by the appellant to be raised by the appeal is whether there is evidence that the appellant had an account, ordered and received any material from the respondent, and whether in the absence of such evidence the order of 8 August 2001 could have been made.

2.Did the learned magistrate deny natural justice in permitting the respondent to present a case based on a forged photocopy without sworn evidence of an application for an account contrary to the evidence presented by the appellant?

3.Could any reasonable magistrate have concluded on the evidence before the court that the appellant in the Magistrates' Court proceedings was liable for the goods supplied?"

1. When the matter came on for hearing before me this morning the plaintiff sought to rely on a further ground, and that is that he was denied natural justice in so far as leading evidence from the witness he called at the hearing before the magistrate was concerned. 

1. Having perused the transcript of the evidence given before the magistrate, I am not persuaded that the plaintiff has established a prima facie case for relief.  I say that for the reason that in my opinion the magistrate made no error of law in making the finding he did against the plaintiff.  It is to be noted that in making that finding he said, at p.28 of the transcript:

"I do not accept the defendant evidence and that of his witness.  I do not accept them as evidence of truth."

That is a finding that this court must act upon.  There is no ground in law for seeking to overturn it.  The fact remains that there was evidence before the magistrate to the effect that the plaintiff ordered the goods in question from the defendant and that subsequently the goods were observed to be at premises occupied by the plaintiff.

1. As to the ground that the magistrate denied natural justice in permitting the respondent to present a case based on a forged photocopy, the magistrate was entitled to accept the photocopy of the application for an account and was entitled on the evidence before him to find that the plaintiff had signed the application.

1. As to the third ground, the short answer to the question posed is "Yes".  There was ample evidence that justified the magistrate in concluding that the plaintiff was liable for the goods.

1. Finally, in so far as the further ground of a denial of natural justice is concerned, that is, a denial on the basis that the plaintiff was unable to question the witness Goldberg, I note from the transcript of the evidence that the evidence-in-chief of Mr Goldberg covered approximately one-and-a-half pages of the transcript, that his cross-examination covered about four pages, but, more importantly, that at the end of it the magistrate said to the plaintiff:  "All right.  Thank you.  Any further questions you want to ask him?", to which the plaintiff replied, "No, thank you."  It was at that point that the witness Goldberg then withdrew from the witness box.

1. For those reasons, I agree with the view expressed by the Master in this case, and the applicant's appeal must therefore be dismissed.

---