NT Fish Pty Ltd v Coastal Fisheries Pty Ltd

[2012] QDC 307

DISTRICT COURT OF QUEENSLAND

CITATION:

NT Fish Pty Ltd v Coastal Fisheries Pty Ltd & Ors [2012] QDC 307

PARTIES:

NT FISH PTY LTD
(Appellant)

AND

COASTAL FISHERIES PTY LTD
(First Respondent)

AND

PETER LYNCH

(Second Respondent)

AND

LOUIS LYNCH

(Third Respondent)

AND

MARTIN LEE CONNOLLY

(Fourth Respondent)

FILE NO/S:

3689/11

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court

DELIVERED ON:

27 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2012

JUDGE:

REID DCJ

ORDER:

(1) Application to amend notice of appeal refused;

(2) Appeal dismissed;

(3) Appellant to pay the respondents’ costs of and incidental to the appeal, to be agreed or, failing agreement, to be assessed.

CATCHWORDS:

Sale of goods – Non-delivery – Amending notice of appeal – Appeal against findings of fact

COUNSEL:

S Taylor for the Appellant

No counsel for the Respondents

SOLICITORS:

Results Legal Solutions for the Appellant

Arns & Associates for the Respondents

Introduction

1. This is an appeal by the plaintiff from a judgment in the Brisbane Magistrates Court. The action was for the cost of a quantity of barramundi fish said to have been supplied by the appellant to the first respondent.  The second, third and fourth respondents were said to be liable pursuant to personal guarantees of any indebtedness of the first respondent to the appellant.  The magistrate dismissed the appellant’s claim, holding that the fish had not in fact been delivered.

The appellant’s claim

1. At the trial the appellant relied on a very inadequate pleading.  It was alleged, in essence, only that the fish had been provided to the first respondent, consequent upon a contract to supply the said fish, and other items, and that, despite demand, the first respondent had not paid the value of the fish, namely $5,873.35. It was agreed that pursuant to the contract Queensland law was the proper law of the contract. This explains the fact of the litigation taking place in Queensland, despite the fact that the delivery was to take place in Western Australia.

1. Nowhere in the pleadings was there any reference to the provisions of the Sales of Goods Act, or to the alleged terms of the contract of sale.  Nowhere was it alleged that consignment notices of the carriers of the alleged fish, or other documentation executed by Mark Dudley, an employee of the first respondent, constituted irrebuttable proof of delivery of the fish. 

1. The trial of the matter proceeded on the basis that the only issue to be decided was whether the fish was in fact delivered.  Counsel for the plaintiff said to the learned magistrate who determined the matter, at T2-100 of the transcript:

“The one issue is whether indeed … the pallet was delivered.”

1. The matter was determined largely by reference to the oral evidence given. It was said at the trial that the documents to which I have referred were evidence of such delivery.  It was not asserted, nor, as I have said, pleaded, that the consignment notes or other documents created a binding presumption of delivery.

1. The failure to have effectively pleaded the terms of the contract implied by the Sale of Goods Act, and the alleged binding effect of the first respondent’s employee’s signing of the said documentation provided by the carrier was critical.  I shall return to this issue later.

1. Before the magistrate, it was admitted that the subject fish had been ordered, despatched by the appellant via a carrier, Toll Holdings, which after taking it as far as Adelaide, engaged a second carrier, HPS Transport, to take the fish from Adelaide to Perth and to deliver it to the first respondent.  It was accepted that the fish had been so carried to the Perth depot of HPS Transport.

1. The appellant’s case was that thereafter the fish, together with other goods supplied by the appellant and others, was delivered by HPS Transport to the first respondent’s store in Perth on the morning of 19 April 2010. The appellant relied on the documents signed by Mark Dudley, an employee of the first respondent, on their face acknowledging receipt of the fish.

The defence

1. The respondents defended the claim on the basis that the fish was not in fact delivered.  They relied principally on the oral evidence of Mark Dudley and David Edmonds, both employees of the first respondent.

The evidence 

1. Mark Dudley’s evidence was that he was a truck driver who had, in April 2010, been employed by the first respondent.  In his evidence, Mr Dudley said that on the Monday morning of 19 April, HPS Transport made a delivery of “approximately six pallets” and said when that was done he was given a bundle of paperwork.  He says he did not really look through the paperwork, but just signed the driver’s run sheet and “that was that”.  He said he was an experienced truck driver, having been carrying out that occupation for a period of about five years.  He said he could not recall seeing a bin of barramundi, and said that such bins are “quite distinctive, they’re a bin made out of cardboard on a pallet and I don’t recall loading that at all.”  He did not dispute that it was his signature on a number of the documents, which the appellant relied on as evidence of the delivery of the barramundi.  He said that the driver “gave me the paperwork and I just signed for it”.  He also said he did not read the documents and did not go through them in any detail before he signed them.

1. David Edmond was in charge of operations for the first respondent.  He says it was his responsibility to organise the daily truck runs and the unloading of fish and of “everything that comes through the doors”.  He said he handles the produce, and makes up orders.  He said he had expected the barramundi to arrive only on the Thursday of the week commencing 19 April and expected that he would have to attend on Toll Holdings, who he thought was the carrier, to collect it.  Although he was not expecting the barramundi until later in the week, he said he was present on the Monday when the delivery from HPS Transport was received (T2‑89 LL 1‑2).  When asked what happened, he said:

“It was like any other unload, it’s taken off the truck, it’s put in our loading dock, requires two men or two people, one on the outside forklift to unload the truck and someone inside to – to bring it from the loading dock and put it into its designated area for sorting.” (T2‑89 LL 3‑9)

1. He said it was, in his opinion, not possible for the stock to have been delivered without him realising, because he said it was he who physically moved the fish (T2‑92 L 5).

1. There was also evidence, that the magistrate accepted, that the first respondent’s warehouse was not a particularly large or busy one.  The evidence in that regard was given by Mr Connolly, the fourth respondent and a director of the first respondent.  He said that on a usual day the company would receive one or two orders, and that his warehouse was around 180 m² plus a cool room of about 60 m² (T2‑79 LL 45‑55).

1. Mr Edmond in his evidence was asked how many orders would normally be received in a day and said, “One to two, you know, some days you might get three, but that would be, you know, your peak—peak period.” (T2‑89 LL 40‑44)  Mr Edmond also said that the bin of barramundi is about one metre in width and about the same height, and apparently enclosed in cardboard.  The inference is that he was suggesting that it was quite distinctive and not easily missed. 

The trial judgment

1. The magistrate’s judgment was short and concise.  She noted that the signing by Mr Dudley of the consignment note did represent evidence that the fish had been delivered.  She said it was in fact the only evidence that verified delivery of the fish.

1. I should point out, in view of submissions that were made by the appellant, that Exhibit 8 before the magistrate was an HPS Transport daily driver run sheet.  It appears to indicate that the first delivery on that day was of product to the first respondent and, in particular, that seven pallets were delivered and, in exchange, seven pallets collected.  There was evidence that pallets have some commercial value and that, for this reason, it was said that there was some need for accuracy in respect of the recording of pallets that were delivered and collected. 

1. The magistrate, having referred to the consignment note, then said:

“Now the question for me to decide is whether the evidence, being the consignment note, is sufficient for me to be satisfied, on the balance of probability, that the fish was delivered.”

1. It seems to me that the magistrate was in some error in concluding that the consignment note was the only evidence verifying delivery of the fish because, as counsel for the appellant correctly points out, the HPS Transport daily driver run sheet, to which I have referred, is also some evidence verifying delivery.  In my view, however, in circumstances where there can be no doubt that a pallet of fish was delivered to the HPS Transport depot, and appears to have gone missing, either at the HPS Transport depot, or at the first respondent’s depot, or perhaps in transit in between, that documentation additional to the consignment note but executed by Mr Dudley at the same time does not advance the matter greatly.

1. The magistrate then turned her attention to the oral evidence; in particular, that of Mr Dudley and Mr Edmonds.  She said that Mr Dudley “struck me as the type that does not take great care with the written part of documentation attached to his job.”  He had said, and the magistrate accepted, that he was just “given a bundle of documentation and he just signed it.”  The magistrate said that the non-delivery of the fish was also supported by the evidence of Mr Edmonds, the manager, who unpacked the load that day.   

1. The magistrate concluded that she had no reason not to accept the evidence of Mr Edmonds and Mr Dudley, and said:

“I simply cannot accept that Mr Dudley and Mr Edmonds are lying about the delivery.”

1. The magistrate also said that she relied on the fact that non-delivery of the fish was reported to the appellant the following day and this was followed up in conversations between Mr Connolly and a representative of Toll Transport.  She said that “it is not a case where the non-delivery is a convenient excuse to escape payment for the goods.” 

1. Finally, the learned magistrate said that there was no evidence given as to the practice at the HPS Transport depot at Canningvale near Perth after receiving the fish from Adelaide. 

The Appeal

1. The notice of appeal sets out the ground of appeal as follows:

“This appeal is on the grounds that:

1.The learned Magistrate at first instance made a finding of fact that goods had not been delivered and/or received by the defendants, by finding inter alia that:

(a)Mr Dudley (being the defendant’s representative who executed various documents), did not take great care with written documentation and signs same without reading or understanding their contents;

(b)That Mr Edmonds unpacked the relevant load and couldn’t find the relevant delivery;

(c)The warehouse was small and only received a few deliveries per day;

(d)There was no evidence which was led that the practice at the HPS depot at Canning Vale, Perth, (the ‘conclusion’).

2.The learned Magistrate in coming to the conclusion:

(a)       Failed to consider relevant evidence; and

(b)       Mistook the facts;

(c)Considered irrelevant evidence;

(d)Failed to apply due weight to relevant considerations; and

(e)Applied undue weight to irrelevant considerations.

3.As a consequence of matters pleaded in the aforementioned paragraph (2) the learned Magistrate erred in dismissing the appellant’s claim and implicitly finding that the goods had not been delivered.”

1. In his written outline, counsel for the appellant relied substantially on the carrier’s terms and conditions set out on the back of the consignment notice of Toll, which document was one of those executed by Mr Dudley, and was Exhibit 10 at the trial. 

1. The appellant’s counsel sought leave, pursuant to r. 751(b) of the Uniform Civil Procedure Rules, to amend the notice of appeal by adding additional grounds.  The application to amend was opposed. In essence, the appellant sought to rely on the provisions of the Sale of Goods Act, 1986 (Qld), to establish that the signature of Mr Dudley on the documents, and in particular on the consignment notice, meant that there was an irrebuttable presumption that the fish had been delivered. 

1. The appellant’s counsel argued that because the evidence had covered all of the relevant controversy between the parties, and because the matter sought to be litigated by the amendment really involved one of law, that it was expedient and in the interests of justice to allow the amendment.

1. In my view, the critical issue was not whether all relevant evidence had been given so that the issue could be determined as between the appellant and the respondents as a matter of law.  Rather, the real issue was whether it was in the interest of justice to allow the amendment.

1. It is clear from my comments at the commencement of this judgment that my view is that the pleading in this matter was grossly inadequate and that the provisions of the Sale of Goods Act and reliance on the presumptive effect of the consignment note ought to have been pleaded initially.  This, however, was not done.  It is, in my view, now relevant to consider whether, if that had been done, the respondents, even if they had no substantial defence against the appellant, may have been able to successfully join HPS Transport as a third party on the basis that such business failed to deliver the fish as required.  This of course is what the learned Magistrate found had in fact occurred.  The respondents may well have joined HPS Transport as a third party to the proceedings. If they had then they might well have been successful in obtaining an order that they be indemnified by that firm for any sum they might have been required to pay to the appellant. 

1. It is in my view also relevant to consider that the value of the fish was only $5,873.35 and that, accordingly, to remit the matter to be again litigated would result in undue delay and expense to the parties.

1. In such circumstances, I refused the application to amend the notice of appeal.

Decision

1. The nature of the original ground of appeal was, essentially, one against findings of fact by the Magistrate. 

1. In Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said, at page 479:

“More than once in recent years, this court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”

1. The importance of that case to appellate decision makers was reinforced by the High Court majority judgment (Gleeson CJ, Gummow and Kirby JJ) in Fox v Percy [2003] HCA 22, especially at paragraphs 26 and 27.

1. In my view, the magistrate’s findings referred to in paragraphs [19]-[22] hereof were justified by the evidence and no criticism of the magistrate could be made for her conclusions.  Her conclusions were entirely consistent with the evidence given by Mr Dudley and Mr Edmonds and her reasons for coming to the conclusions she did were rational and entirely appropriate. The conclusion is also supported by other evidence, to which I have not specifically referred, that Mr Edmonds looked for the fish following his inability to locate it on the Monday, or on subsequent days, and in particular on the Thursday when he expected delivery of it.

1. There was no strong evidence to demonstrate to the magistrate that it was not possible that the goods had gone missing from the HPS Transport depot, despite the contents of the consignment note and HPS Transport daily driver run sheet, which had been signed by Mr Dudley.

1. The learned magistrate was quite entitled to come to the conclusion she did, having regard to the nature of the pleaded case and the evidence before her.  In my view, the appellant was unable to show any basis for setting aside the findings of fact of the learned magistrate.  She was cognisant of the fact that the consignment note had been executed by an agent of the first respondent but, despite that, made the factual findings that she did.  In my view, there is no evidence to suggest that those findings were not open to her, or that she had in any way misused the advantage she had as the trial magistrate, or acted on evidence which was glaringly improbable or contrary to other proven facts. 

1. In the circumstances, it is my view that the appeal should be dismissed.  Subject to any argument to the contrary, I would order that the appellant pay the respondents’ costs of and incidental to the appeal, to be agreed or, failing agreement, to be assessed.