Sellars v Bush Safari Co Pty Ltd

Case [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

  1. 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

  2. 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]   

Continue reading Sellars v Bush Safari Co Pty Ltd

Sign in free to access the full text

Details
AGLC
Sellars v Bush Safari Co Pty Ltd [2008] SASC 269
Case
[2008] SASC 269
Decision Date

CaseChat Overview and Summary

In the case of Sellars v Bush Safari Co Pty Ltd, the appellant, Sellars, appealed against the decision of a Magistrate who found that he misrepresented the age of a truck sold to Bush Safari. The Magistrate awarded Bush Safari damages of $7,000, being the difference between the price paid and the approximate market value of the vehicle. The appeal was filed almost nine months out of the allowed time, and Sellars did not provide sufficient grounds to justify an extension. The court was required to decide whether the appeal should be extended and if it had any chance of success.

The court reasoned that even if cogent grounds for an extension of time were presented, they would still need to be weighed against the appellant's prospects of success on the appeal. The court found that the appeal would have to be dismissed in any event. The Magistrate's findings were based on the credibility of the witnesses, and the court's role on an appeal from a Magistrate's decision is to reach its own view of the case by making an independent review of the evidence. The court found that the appeal had no chance of success.

The court dismissed the application for an extension of time within which to bring the appeal. The court found that the Magistrate's approach to the valuation of the vehicle was appropriate, and the appeal would have to be dismissed in any event. The court also found that the Magistrate's findings were based on the credibility of the witnesses, and the appeal had no chance of success. The final orders were that the application for an extension of time within which to bring the appeal must be refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BLEBY J
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 concernWe have asked to do an estimate value with out site (sic) of the following machinery/equipment1 international cl850 1980 2x4 22ft tray Perkins engine EST$85001 international cl850 1990 2x4 22ft tray Perkins engine EST$15000THESE 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].

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

Full text does not contain this section.