Sellars v Bush Safari Co Pty Ltd - [2008] SASC 269

Supreme Court of South Australia
(Magistrates Appeals: Civil)
SELLARS v BUSH SAFARI CO PTY LTD
[2008] SASC 269
Judgment of The Honourable Justice Bleby (ex tempore)
25 September 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - VICTORIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES
Application for extension of time in which to appeal against judgment of a Magistrate – Magistrate found that appellant misrepresented the age of a vehicle sold by the appellant to the respondent – Magistrate awarded respondent damages of $7,000, being the difference between the price paid by the respondent and the approximate market value of the vehicle – appeal almost nine months out of time – appellant did not advance any ground sufficient to justify extension – consideration of merits of appeal – consideration of role of the Court on an appeal from a Magistrate’s decision – Magistrate’s findings based on credit of witnesses – Magistrate’s approach to valuation of vehicle was appropriate – appeal had no chance of success – application for extension of time dismissed.
Magistrates Court Act 1991 (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 283, r 290; Justices Act 1921 (SA), referred to.
Taylor v Hayes (1990) 53 SASR 282; Aubigny Pty Ltd v Kowshu Enterprises Pty Ltd (1997) 191 LSJS 202; Caruso v Iarossi and State Government Insurance Commission [2003] SASC 177; Jones v Dunkel (1959) 101 CLR 298, applied.

SELLARS v BUSH SAFARI CO PTY LTD
[2008] SASC 269
Magistrates Appeal: Civil
BLEBY J.
Introduction

This is an appeal pursuant to s 40 of the Magistrates Court Act 1991 (SA). The action in the Magistrates Court was an action for damages by the respondent, Bush Safari Co Pty Ltd (“Bush Safari”) against the appellant, Mr Sellars, arising out of the sale by Mr Sellars, to Bush Safari of a second hand truck. On 27 September 2007, after hearing oral evidence and receiving documentary evidence, the Magistrate gave an ex tempore judgement in favour of Bush Safari in the sum of $7,000 plus costs amounting to $305. Neither party was legally represented before the Magistrate. Neither party was legally represented before me.
Appeal out of time
The appellant’s notice of appeal is not dated but was filed on 7 July 2008. Rule 283(1) of the Supreme Court Civil Rules 2006 (SA) requires that an appeal must be commenced within 21 days after the date of the judgment, order or decision the subject of the appeal. The notice of appeal is therefore almost nine months out of time. The Court has power to extend the time for commencing the appeal,[1] if strict compliance with the rule would work an injustice. Relevant to that question is the length of the delay, the reasons for the delay and any prejudice to the respondent.
[1] Supreme Court Civil Rules 2006, r 290(1)(a).
By the notice of appeal the appellant seeks an extension of time on the ground that there was no notification from the Court of the decision of the Magistrate. I consider that there is no substance in this ground. Mr Sellars, the appellant, was present in court when the Magistrate pronounced her judgment. He was fully aware of the judgment and of the reasons which the Magistrate had just given. He could have appealed at any time within the required 21 days. It is also alleged that the Magistrate erred when told that the vehicle was owned by a company known as Fastline Pty Ltd. I do not consider that that is relevant to the question of an extension of time within which to appeal, nor is it relevant, for present purposes, that that company was not joined as a defendant.
A further ground for the extension of time asserts that, “when told her judgment was wrong [the Magistrate] absolutely became agitated and lost her control so as the finding was not precise”. Mr Sellars was obviously upset at the judgment, but whatever exchange occurred between Mr Sellars and the Magistrate after judgment was delivered did not alter the fact that the judgment had been given and that it had been given in quite clear terms.
In my opinion none of the grounds on which an extension of time is sought are sufficient to justify such an extension.
Today Mr Sellars has attributed the delay to the fact that he was angry about the decision and refused to accept it. That is no excuse for the delay. Rather, it suggests that something should have been done about an appeal much sooner then it was.
Even if cogent grounds for an extension of time were advanced, they would still have to be considered against the appellant’s prospects of success on the appeal. For reasons which I am about to give, the appeal would have to be dismissed in any event. Accordingly, the appellant’s application for an extension of time within which to bring the appeal must be refused.
The relevant facts
Mr Sellars operates a transport company or companies at Port Adelaide. Bush Safari operates safari tours throughout Australia and is run by Mr Ellis. The Magistrates Court proceedings related to the sale of a truck by Mr Sellars, or possibly one of his companies, to Bush Safari. If the truck was owned by one of his companies, Mr Sellars was at all material times acting as its agent. The sale occurred in June 2006. At that time, one of Bush Safari’s trucks had broken down and a replacement was urgently needed. Mr Sellars had advertised two similar trucks for sale in the newspaper. A friend of Mr Ellis, Mr Reilly, noticed the advertisement and, thinking that one of the trucks might be suitable for Mr Ellis, telephoned Mr Sellars and enquired about the trucks. Following this conversation, Mr Reilly recommended that Mr Ellis have a look at the truck in question. Mr Ellis subsequently inspected the relevant vehicle at Mr Sellars’ premises in Port Adelaide.
Mr Ellis, Mr Reilly and Mr Sellars all gave evidence before the Magistrate. While this evidence was strenuously disputed by Mr Sellars, Mr Reilly said that Mr Sellars had told him that the truck was a 1989/90 model. Mr Ellis gained that understanding from Mr Reilly, and he too said that Mr Sellars told him that it was a 1989/90 model. Mr Sellars denied that he had ever made any such representation.
The vehicle in question had been advertised for sale at $15,000. Mr Ellis inspected at least one other vehicle being offered by a different vendor. He offered to purchase the truck from Mr Sellars for $14,000, and Mr Sellars agreed. Mr Sellars wrote out an invoice dated 8 June 2006 addressed to Bush Safari showing himself as vendor and describing the truck as “1 S/H Inte Acco. As inspected. XFB227 Reg. No.”. The registration papers were not available at the time, but Mr Sellars undertook to forward them to Mr Ellis, which he subsequently did.
When Mr Ellis received the registration papers, those papers indicated that the truck was a 1980 model.
Mr Ellis subsequently encountered substantial mechanical problems with the truck. It required extensive repairs. Bush Safari then commenced the action in the Magistrates Court against Mr Sellars claiming the cost of repairs to the truck.
The Magistrate’s decision
The major issue at the trial was whether Mr Sellars represented that the truck was a 1989/90 model. The Magistrate found that Mr Sellars did in fact make such a representation. She accepted the evidence of both Mr Ellis and Mr Reilly and rejected the evidence of Mr Sellars on that point.
The Magistrate also found that the misrepresentation had induced Mr Ellis to purchase the truck at the price of $14,000. She made the further finding that, if Mr Ellis had known that it was a 1980 model truck, he probably would still have purchased it but only at approximately half the price that in fact he paid. By that she meant, I think, as Mr Ellis later said, that he would not have paid what he did for the vehicle.
Mr Ellis tendered and the Magistrate admitted into evidence a letter signed on behalf of CG & S Simpson Pty Ltd, trading as Salisbury Machinery Sales, from whom Mr Sellars claimed that he had purchased the truck twelve months before. The letter read:
To whom it may concern
We have asked to do an estimate value with out site (sic) of the following machinery/equipment
1 international cl850 1980 2x4 22ft tray Perkins engine EST$8500
1 international cl850 1990 2x4 22ft tray Perkins engine EST$15000
THESE PRICES ARE ESTIMATES ONLY
The letter did not purport to value the truck in question, but the Magistrate took the letter as an indication of the level of values of trucks of that type and of those respective years of manufacture. There was no other evidence before the Magistrate of the value of the truck in question at the time.
The Magistrate rejected the claim of Bush Safari that it was entitled to recover the cost of the repairs to the truck. They were substantially in excess of the amount awarded by the Magistrate.
The Magistrate’s conclusion is conveniently summarised in the following paragraph:
I have concluded that the vehicle that was purchased by Mr Ellis was purchased because of the misrepresentation of the defendant. Mr Ellis was under the impression he was buying a 1990 vehicle. It was in fact a 1980 vehicle. Applying the broadaxe approach from the information from Salisbury Machinery Sales, I find the purchase price should have been $7,000, not $14,000 and that therefore, the plaintiff is entitled to judgment of $7,000, being the return of that part of the purchase price, which was paid over on account of the misrepresentation.
The grounds of appeal
Mr Sellars appeals against the finding of the Magistrate that he represented that the vehicle was a 1989/90 model. He claims that the truck was sold “as inspected”, as indicated on the invoice, and that the valuation on which the Magistrate acted was of another vehicle and six months later.
The role of this Court on appeal
The role of this Court on an appeal under the Justices Act 1921 was described by Perry J in Taylor v Hayes.[2] The appeal provisions under the Justices Act were not materially different from those presently contained in s 40 of the Magistrates Court Act. Perry J said:
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate's findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.[3]
[2] (1990) 53 SASR 282.
[3] Ibid 291-292. See also Aubigny Pty Ltd v Kowshu Enterprises Pty Ltd (1997) 191 LSJS 202, 205-206; Caruso v Iarossi and State Government Insurance Commission [2003] SASC 177, [16]-[22].
While it is the duty of this Court to reach its own conclusions on findings of fact, it must do so recognising that the Magistrate had the advantage of hearing the evidence and of assessing the witnesses and their credit. While a magistrate’s findings on questions of credit are not necessarily conclusive, it is appropriate to give them due weight in reaching a conclusion on appeal where the appellate court has not had the advantage of hearing or observing the witnesses in the giving of their evidence.
The merits of the appeal
I have read the transcript of the evidence before the Magistrate. I have examined the documents that were tendered. The crucial issue on which the Magistrate found against the appellant was that Mr Sellars misrepresented the year of manufacture of the vehicle, and that that was a material inducement to Mr Ellis to offer the price at which the truck was ultimately sold to him. There is nothing in the evidence which would cause me to doubt in any way the assessment of the Magistrate in preferring the evidence of Mr Ellis and Mr Reilly to that of Mr Sellars. Mr Sellars maintained that he would not have said that it was a 1989 truck because he knew that it was not. However, when pressed, he admitted that, at the time, he did not know it was 1980 vehicle. However, Mr Sellars’ knowledge or otherwise of the year of manufacture has little bearing on what he may have actually said to Mr Reilly or to Mr Ellis about the year of manufacture. Taking the Magistrate’s findings as to the credit of the witnesses into account, I conclude that the representation was made as found by the Magistrate, and that Mr Ellis would not have paid $14,000 for the truck if he was aware of the true facts.
Having found that the representation was made and that Mr Ellis was thereby induced to purchase the truck for the price that he paid, the measure of Bush Safari’s loss is not what it cost to repair the truck when it broke down but the difference in value between what Bush Safari paid for the truck and its value at the time as a 1980 model in apparently good working order.
As to that, the Magistrate had little evidence on which to work, but she had to make a decision, as this Court does, based on the material placed before her by the parties. The Magistrate acknowledged that she could not rely on the letter from Salisbury Machinery Sales as being “absolutely accurate and representative as at the time of the transaction between the parties”. She did not treat it as being a valuation of the actual vehicle in question, and it did not purport to be. The Magistrate considered it “a fair indication of the broad price range for a 1980 truck and a 1990 truck”. She used it as the best available evidence in reaching the conclusion that she did, applying the “broadaxe approach” to which reference has already been made.
It was not for the Magistrate, nor is it for this Court, to cast around advertisements for similar used trucks in order to form its own opinion as to what the value of this particular truck might have been at the time of sale. It was not inappropriate for the Magistrate to base the award of damages on the information placed before her. Mr Sellars did not attempt to introduce any evidence as to the actual value of the vehicle. His evidence was that he had purchased the vehicle from Salisbury Machinery Sales some 12 months previously. He did not give evidence of the price that he paid for the vehicle at that time. Even that might have been a helpful guide to its true value at the time of this sale. The unexplained failure by a party to give evidence available to him may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case.[4] It was within Mr Sellars’ power to give evidence as to what he paid for the truck. The Magistrate’s conclusion is supported by the inference which may properly be drawn that such evidence would not have assisted Mr Sellars’ case. There is therefore no reason to disturb the Magistrate’s finding as to the appropriate award of damages.
[4] Jones v Dunkel (1959) 101 CLR 298, 308, 312, 320-321.
Conclusion
As the Court would be obliged to dismiss the appeal in any event for the reasons I have given, this in itself, in the absence of any other satisfactory explanation, is sufficient reason to refuse an extension of time in which to institute the appeal. Accordingly, the application for the extension of time must be dismissed. It follows that the judgment of the Magistrates Court remains in force.