Potts v White - [2008] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
POTTS v WHITE
[2008] SADC 140
Decision of His Honour Judge Tilmouth
29 October 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
Turns on own facts.
Potts v White [2008] SAMC 7, upheld, appeal dismissed.

POTTS v WHITE
[2008] SADC 140
Judge Tilmouth
Civil

Shaun Potts claims to have purchased from Nicole White a gearbox advertised as a VP V8, on 16 December 2004 at her home in Wynn Vale. He says it was in fact a Ford Falcon EA 6 cylinder gearbox, so he sued her in the Holden Hill Magistrates Court for a refund of the price he paid of $1,200.
An advertisement was placed in the Trading Post on that date, advertising the gearbox for sale of that description and giving a mobile number to contact. A tax invoice for the payment of the advertisement was proved, addressed to Nicole Peterson at the subject address.
The action was heard by a Magistrate, who on 25 March 2008 gave judgement in favour of Mr Potts.[1] Miss White claimed to have been in Port Lincoln on the day of the transaction, but the Magistrate did not believe her. He concluded that she and another witness associated with her, Mr Peterson, were lying to avoid responsibility for refunding the purchase price of the gearbox.
[1] Potts v White [2008] SAMC 7
The Magistrate noted that the hearing had been adjourned to enable her to gather evidence to prove she was in Port Lincoln visiting her father at the time alleged. When the matter resumed the Magistrate was informed the proposed witness was “busy working”. However an affidavit was filed before him by Ms Benson, to the effect that Miss White was in Port Lincoln in December of 2004, but that “(I) am not certain of dates but it was for several weeks and she and the family were here for Christmas at my house”. There was no doubt she was there as of 25 December, as she was charged with committing an offence on that date.
Miss White appeals the adverse decision, on the basis that the court below “didn’t let me subpoena anyone”, that she was in Port Lincoln and that “it wasn’t me that sold this gearbox”. This appeal has been before the court on two previous occasions, 20 May and 1 September 2008 and eventually came on for hearing on 28 October 2008. On the first of these dates she had apparently issued a subpoena to Ms Benson but sought an adjournment to obtain more evidence in support of her appeal and to seek legal advice. Both parties were told to have any witness or other material they wished to produce available at the resumed hearing.
Upon resumption on the adjourned date 1 September 2008, neither party appeared. Mr Bradley Peterson appeared in answer to a subpoena issued by Miss White, in response to which he submitted a handwritten statement to the court, stating he was a tenant of hers, and that she and her children were ill. In it he professed to be present when Mr Potts came to her house. He told the court he travelled to Port Lincoln with her over the relevant period, that she stayed for four or five weeks and returned to Adelaide the following January, however he was quite imprecise as to specific dates and gave this point of view from what she did as a matter of habit rather than from memory. He also denied it was his signature on a receipt for the purchase, tendered before the Magistrate. The matter was again adjourned.
In the meantime the appellant, Miss White, filed an application for an ex‑parte order giving leave to serve Judy Benson of 7 Carr Street, Tumby Bay 5605 by registered mail, to be posted no later than 4pm on 22 October 2008 the day on which the Master made the order. Benson sent a facsimile to the court the next morning saying that she was only served with the subpoena at 6:30pm on the evening of 27 October and that no conduct money was furnished, as required by the order of the Master. It went on to state that she could not remember Miss White “being in Pt Lincoln” at the relevant time. The court offered a number of times to contact Miss Benson by telephone during the hearing (she supplied both a land line and mobile number on which she said she could be contacted), but given the contents of the facsimile, Miss White declined the offers.
The case for the appellant is that she was in Port Lincoln when she was supposed to have sold to Mr Potts, the gearbox on 16 December 2004 at her home in Wynn Vale.
The Magistrate received into evidence a receipt said by Mr Potts to have been written out by Miss White at the time, and said to be signed by Peterson, as well as a copy of the Trading Post advertisement which he obtained under subpoena from the publisher. The latter contained at least three separate items for the sale of car parts, all supplying the same mobile number. Exactly the same number, as it happens, was also written on the receipt given to Potts. This also happens to be a telephone number furnished to the Trading Post as a contact point, and although invoiced to Nicole Peterson, contained a contact nominated as Nicole White, coincidentally at her home address in Wynn Vale.
In reaching his decision the Magistrate noted that she denied any knowledge of this telephone number, or that it had ever been hers. As Mr Potts could only have obtained the telephone number from that listed in the advertisement, the Magistrate was particularly influenced by the coincidence that Miss White wrote in her defence dated 8 August 2005 that “I don’t know who Shaun Potts is… [he]… keeps ringing my mobile phone abusing me, also coming around to my house”. Based on this fact, he proceeded to reason that “the admission in her defence confirms that that must have been her mobile number…”. He also noted that Miss White was not “able to explain how the tax invoice from the ‘Trading Post’ was in her name”. On this basis he concluded she and Mr Peterson were lying and found for Mr Potts accordingly.
The parties in the appeal reiterated their positions in the same terms as they had before the Magistrate. Precisely the same difficulties confront Miss White as they did then; how did Mr Potts know her mobile number and why is she named as contact person in the Trading Post documents relating to the gear box, if she had no involvement with him? The simple fact of the matter is that these facts are only explicable on the basis that the mobile number must have been hers, otherwise he could not possibly have contacted her and the contact person must have been her as well. This name is in any case scarcely different to Nicole Peterson, given the proved connection between her and Mr Peterson.
It was therefore perfectly open to the Magistrate to reason as he did and draw the conclusions he drew. This court, considering the matter afresh, reaches the same view for precisely the same reasons.
There is also a further consideration. At the hearing in this court, Mr Potts explained that he rang the mobile number in the advertisement and was given the Wynn Vale address over the telephone, at which he then attended later that day. When pressed, Miss White was completely unable to explain how he knew where she lived, other than being told by her. She then sought to suggest that perhaps he had responded to another advertisement, relating to another vehicle, but this is completely at odds with her consistent denial, up until now, of knowing anything about him or of having anything to do with him: it smacks of recent invention. His esoteric knowledge of this and the above facts is wholly consistent with his version of the events and wholly inconsistent with hers.
The appeal is therefore dismissed.