Sims Garage & Bodyworks v Automotive Supplies Pty Ltd trading as Colourworld Paint
[2000] TASSC 98
•19 July 2000
[2000] TASSC 98
CITATION: Sims Garage & Bodyworks v Automotive Supplies Pty Ltd trading as Colourworld Paint [2000] TASSC 98
PARTIES: SIMS GARAGE & BODYWORKS
v
AUTOMOTIVE SUPPLIES PTY LTD
trading as COLOURWORLD PAINT
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 21/1999
DELIVERED ON: 19 July 2000
DELIVERED AT: Launceston
HEARING DATE/S: 19 July 2000
JUDGMENT OF: Underwood J
[Edited reasons given orally]
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant: D G Grey
Respondent: R J Howroyd
Solicitors:
Appellant: Zeeman Kable & Page
Respondent: Bennett Howroyd
Judgment ID Number: [2000] TASSC 98
Number of paragraphs: 15
Serial No 98/2000
File No LCA 21/1999
SIMS GARAGE & BODYWORKS v AUTOMOTIVE SUPPLIES PTY LTD
trading as COLOURWORLD PAINT
REASONS FOR JUDGMENT UNDERWOOD J
(GIVEN ORALLY) 19 July 2000
This is an appeal from a judgment pronounced in the Magistrates Court (Civil Division) on 24 September last year. The judgment was for the respondent in the sum of $3,678.15 and costs to be taxed. The respondent's claim was for money due for the supply of paint over a long period of time to the appellant who carried on the business of a bodyworks and spray painting shop. As it turned out, there was very little dispute over the respondent's claim. The real dispute between the parties arose out of a counterclaim in the sum of $3,852.50 for damages suffered by reason of the fact that over the years some of the products sold and supplied by the respondent to the appellant were defective. The claim was founded in breach of contract.
I might observe at the outset that while it is a shame that a dispute over such a small amount of money had to go to litigation in the lower court, it is a tragedy that the decision of that court had to be brought here on an appeal for the costs of this litigation will far exceed the amount involved in it.
However, I shall deal with the issues as raised on the appeal. In his reasons for giving judgment the learned magistrate assessed the respondent's claim in the sum of $3,305.16. In addition the respondent claimed interest on that sum which was calculated at $1,073.35. The learned magistrate added the two sums together and then deducted therefrom the amount he found due to the appellant on the counterclaim.
Ground 4 of the appeal alleges that that course was erroneous. I uphold that ground. The authority for ordering interest is to be found in the Magistrates Court (Civil Division) Act 1992, s25. The power conferred is to include in the whole or in part of the sum for which judgment is given interest at such rate, not exceeding the prescribed rate, as the court thinks fit for the whole or any part of the period between the date when the cause of action arose and the date when judgment was entered. Accordingly, the jurisdiction of the court is confined to awarding interest on the sum for which judgment was given. In this case that sum was $3,305.16 less $700 which the learned magistrate set off against that sum.
The plain fact of the matter is that there should have been two judgments in this action, one on the claim and one on the counterclaim because the latter did not plead a set-off. However, the magistrate treated it as a set-off. There is no appeal against that error and accordingly as I say, s25, authorises interest only on the sum for which judgment is given. Were that all, the matter could be simply rectified and I could recalculate the sum for interest. Unfortunately it is not all.
The issue between the parties on the counterclaim centred around the alleged supply of faulty paint and putty. During the course of the trial evidence was sought to be led from the owner and manager of the appellant bodyworks about this matter. Some of that evidence was expert opinion evidence. An objection was taken to the leading of that evidence and counsel for the appellant then sought to qualify Mr Sims as an expert in the field of spray painting and automotive paint generally. He did not get very far. He led from Mr Sims that he had been the manager and supervisor of his bodyworks business for over 20 years when he was interrupted and there ensued a debate between him and the learned magistrate.
The debate began with the learned magistrate saying to counsel for the appellant "his experience is one thing, experience is one thing, but are there to be formal qualifications here as a spray painter/panel beater". Counsel said "No sir, what the qualification is there's 20 years in running Sims Bodyworks and quoting and supervising the repair in relation to each one of those vehicles". Thereafter the debate with counsel proceeded until the learned magistrate said:
"I wouldn't regard him as an expert in the field of spray painting and panel beating unless he held qualifications in that particular field, and he doesn't you tell me."
and
"No, I don't regard him as an expert in that field."
Quite clearly, such a conclusion was an error in law. The existence of formal qualifications has never been a prerequisite to being qualified to give expert opinion evidence. In this respect I venture to read a passage from the judgment of Bollen J in R v Rose (1993) 69 A Crim R 1 at 9 where his Honour said:
"As Mr Tilmouth wrote in his Outline the leading authority on admission of expert evidence in Australia is Clark v Ryan (1960) 103 CLR 486. In the quoted passage from his Outline Mr Tilmouth recites a passage from the reasons of Dixon CJ. But I do not think that Dixon CJ was contemplating a 'course of habit or study' only in classroom or lecture theatre or from books. There is a place for the evidence of what I call 'the practical expert'. An engineer, both from practical observation or work and study from books or lectures, will understand the workings of an internal combustion engine. So will a mechanic who has worked on engines man and boy for (say) these 30 years."
Other authorities to the like affect can be found in Cross on Evidence, 6th Aust ed, par29055.
I reject Mr Howroyd's submission that when the learned magistrate used the words "formal qualifications" he was not referring to those that are gained by an apprenticeship or special course of study but rather to some particular experience or acquaintance with the relevant matter of expertise. I am satisfied on a reading of the whole of the relevant part of the transcript that the learned magistrate was talking about formal qualifications such as an apprenticeship. Now the result of that error, in my view, has seriously affected this trial and resulted in a miscarriage of justice. The ruling, given rather peremptorily, precluded Mr Sims from adducing further evidence by which he might have been able to qualify himself as an expert. The learned magistrate precluded that course by finally determining that absent formal qualifications Mr Sims was not qualified to express expert opinion evidence.
The next ground of appeal is a complaint that the learned magistrate refused to allow an amendment to the particulars. I must say that a great deal of misunderstanding, confusion and mismanagement attended this aspect of the case.
Paragraph 13 of the defence and counterclaim set out in several paragraphs particulars of the loss and damage that the appellant said it suffered. They were:
"To cost of repairs to motor vehicle damaged in December 1996 (incorrectly labelled product) - $200.
To cost of repairs to three motor vehicles necessitated as a result of supply of faulty putty - $750.
To cost of repairs to motor vehicle (Magna) as a result of failure of primer in about August 1996 - $1,402.50
To cost of repairs to Nissan Patrol June/July 1997 as a result of failure of primer - $1,500
Total $3,852.50."
During the course of leading evidence from Mr Sims the learned magistrate suggested that the particulars might be amended, and accordingly, an application was made to amend the particulars. Relevantly the application sought to amend the second claim for $750 by substituting the word "primer" for the word "putty" and adding the word and date "March 1993". Mr Howroyd, who appeared both on the appeal and in the court below, objected to the amendment upon the basis that there had been no cross-examination of the respondent's witnesses about the cost of repairs to three motor vehicles costing $750, ie, there had been no cross-examination about the second particular of damage at all. The learned magistrate upheld that submission and disallowed the amendment to the claim for cost of repairs to three motor vehicles $750.
The notice of appeal complains that error occurred in refusing to allow that amendment as there would have been no prejudice suffered by allowing it. This might be right, but more importantly, the learned magistrate directed that no evidence could be led with respect to the cost of repairs to three motor vehicles claimed at $750. Now plainly that was an error because this claim was already in issue by the existing particulars particularised. Disallowance of the amendment left unaffected the original particular and the refusal to permit the amendment was no basis for excluding any evidence with respect to this aspect of the appellant's claim.
Accordingly, I am satisfied that the ground of appeal (added during the hearing of the appeal) that the learned magistrate wrongfully refused to allow any evidence to be led in respect of the cost of repairs to three motor vehicles necessitated as a result of the supply of faulty primer - $750, is made out.
In result the appeal is allowed. The judgment is set aside. Unfortunately, there is no course that can be taken other than to remit the claim and counterclaim back to the Magistrates Court (Civil Division) for rehearing before another magistrate. With what is perhaps a forlorn hope, I trust that the parties will see some commonsense and manage to settle the dispute before it has to be re-tried.
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