Neville Jordan v ACN 081 472 102 Pty Ltd & Anor

[2008] HCASL 494

NEVILLE JORDAN
v
ACN 081 472 102 PTY LTD & ANOR
[2008] HCASL 494
A9/2008

1. This is an application for special leave to appeal from orders of the Full Court of the Supreme Court of South Australia (Doyle CJ, Bleby and Anderson JJ).  On 30 June 2008, that court, determining an application for leave to appeal on the papers, unanimously dismissed an application for leave, in accordance with the Supreme Court Act 1935 (SA), s 50(4)(a)(ii). The applicant sought to appeal from orders of the primary judge in the Supreme Court (David J). The Full Court concluded that, in light of factual findings made at trial by the magistrate, an appeal could not succeed and that no foundation had been shown to demonstrate error in the decisions below.

2. The case started as an endeavour to recover moneys said to be outstanding on two orders for the supply of wooden frames.  The applicant defended that action on the basis, essentially, that the frames were not fit for the purpose identified and were not of merchantable quality.

3. The magistrate rejected the applicant's defences on the footing that the frames had been made to specifications and computer drawings, provided by the applicant.  The magistrate noted that at no stage during the staggered delivery of the frames had the applicant complained of their unsuitability.  This was so despite the fact that a number of the frames had broken when the applicant sought to use them.  Dissatisfaction with the frames was not voiced until a number of invoices had been sent to the applicant.  The magistrate found that the applicant was responsible for the expenditure on the frames.  His counter-claim was rejected.  Judgment was entered against him in the sum of $1,991.70.

4. In the Supreme Court various complaints of error on the part of the magistrate were made by the applicant.  The trial judge concluded that no defence was available against the invoices, based upon the Manufacturers Warranties Act 1974 (SA) and that the applicant's counter-claim had been correctly dismissed by the magistrate.

5. In this Court, the draft notice of appeal is prolix.  It is devoted to unparticularised assertions of failure of the "judicial process" and to a contest about various factual conclusions reached below.  Complaint is made about the failure of David J to permit the applicant to adduce fresh evidence and what is said to be his Honour's conclusion against the weight of the evidence.  For the most part, the written case is directed to factual assertions.  However, there are also complaints about the conduct of the applicant's counsel before the magistrate.

6. We have reviewed the record carefully because we realise that, occasionally (particularly with persons who are not legally represented in the courts below), arguably important points of legal principle can arise to warrant the attention of this Court.  However, we are not convinced that any arguable question of law or miscarriage of justice has arisen to warrant a grant of special leave.  Essentially, the applicant lost his case on the basis of the assessment of the factual evidence.  Especially given that the application for special leave challenges an order of the Full Court, which itself involved the disposition of a leave application, we are unconvinced that the applicant has demonstrated the existence of reasonable prospects of success, were special leave granted.  We also take into account the very small amount at stake and the competing priorities of other claims to a hearing in this, the nation's final court.  Accordingly, the application is dismissed.

7. In accordance with Rule 41.10.5 of the High Court Rules we direct the Registrar to draw up, sign and seal an order dismissing the application.

M.D. Kirby
28 August 2008 J.D. Heydon