Skinner v Ford Motor Company Australia
[2009] FMCA 924
•18 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SKINNER v FORD MOTOR COMPANY AUSTRALIA | [2009] FMCA 924 |
| PRACTICE AND PROCEDURE – Whether proceeding commenced more than six years after accrual of course of action – whether the proceeding should be summarily dismissed. |
| Trade Practices Act 1974 (Cth) Part VA, ss.52, 53(ea), 75, 75AC, 75AD, 75AE, 75AF, 75AG, 82, 86(2) Fair Trading Act1999 (Vic) ss.32I, 32IA, 32B, 33,34 Federal Magistrates Act 1999 (Cth) s.17A |
| Burns v M.A. N. (1986) 161 CLR 653 Baxter v Obacelo [2001] HCA 66; 205 CLR 635 Wardley Australia Ltd v State of Western Australia [1992] 175 CLR 514 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 |
| Applicant: | GRANT JASON SKINNER |
| Respondent: | FORD MOTOR COMPANY AUSTRALIA |
| File Number: | MLG 1578 of 2008 |
| Judgment of: | Phipps FM |
| Hearing date: | 25 March 2009 |
| Date of Last Submission: | 25 March 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 18 September 2009 |
REPRESENTATION
| The Applicant: | Appearing on his own behalf |
| Counsel for the Respondent: | Mr J Brereton of Counsel |
| Solicitors for the Respondent: | Legal Counsel, Ford Motor Company Australia |
ORDERS
The application filed 15 December 2008 is dismissed.
The applicant pay the respondent’s cost in accordance O62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1578 of 2008
| GRANT JASON SKINNER |
Applicant
And
| FORD MOTOR COMPANY AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent applies for summary dismissal of the proceeding. The proceeding was commenced by an application filed on 15 December 2008. A statement of claim was filed on 25 February 2009.
The issues are:
a)Is the application out of time?
b)Is the application vexatious and an abuse of process?
The proceedings
In March 2000 the applicant purchased a commercial refrigerated vehicle (a Ford Transit/Horton) from B.S. Stillwell Motor Company Pty Ltd. trading as Knox Ford. The applicant financed the purchase by a high purchase agreement with Ford Credit Australia Ltd.
The applicant alleges that prior to the purchase and entering into the high purchase agreement he informed Knox Ford that he was soon to start with TDG Logistics Ltd. as a subcontractor to deliver cheeses and small goods to supermarket chains and shops in regional Victoria and southern New South Wales. He alleges that certain representations about the motor vehicle were made to him by representatives of Knox Ford and that Knox Ford was acting as the agent of the respondent Ford Motor Company of Australia Limited. He alleges that the respondent was a supplier for the sale of ford motor vehicles through Ford authorized dealers in Australia.
The applicant alleges breaches of s.52, s.53(ea) and refers to s.75AC The Trade Practices Act 1974 (Cth). He claims damages.
The applicant is unrepresented and has drafted the statement of claim himself. I interpret the statement of claim as alleging these causes of action:
a)a claim under section 52 that the representations made to him about the vehicle were false, that this constituted misleading and deceptive conduct, that he relied on those representations in obtaining the vehicle from Knox Ford and entering into the hire purchase agreement, and that as a result of relying on those representations he has suffered damage:
b)a claim under s.53(ea) that representations were made to him concerning the availability of facilities for the repair of the vehicle, or the availability of spare parts for the vehicle, that the representations were false, that this constituted misleading and deceptive conduct, that he relied on those representations in obtaining the vehicle from Knox Ford and entering into the hire purchase agreement, and that as a result of relying on those representations he has suffered damage.
c)Paragraph 9 of the statement of claim is;
The making of the representations regarding vehicle safety and build quality constituted conduct in trade or commerce by the Ford Motor company in contravention of section 75ac (sic) of the Trade Practices Act 1974
Section 75AC is within Part VA of the Act. It sets out the meaning of goods having a defect for the purpose of that part. Part VA is a self-contained code for dealing with defective goods. It contains its own provisions for compensation; s.75AD liability for defective goods causing injuries – loss by injured individual: s.75AE liability for defective goods causing injuries – loss by person other than injured individual: section 75AF liability for defective goods – loss relating to other goods; section 75AG liability for defective goods – loss relating to buildings etc.
None of the compensation provisions apply to the circumstances alleged by the applicant, that is, the acquiring by him of a motor vehicle for business purposes, and damages, being business losses, arising from false representations about that motor vehicle. There cannot be a claim under Part VA. Paragraph 9 of the statement of claim does not add anything to the other two claims for misleading and deceptive conduct and probably does not intend to.
The applicant has filed a number of documents, including a number of affidavits subsequent to the hearing of the summary judgment application. He refers to the High Court decisions of Burns v M.A. N. (1986) 161 CLR 653 and Baxter v Obacelo [2001] HCA 66; 205 CLR 635.
The first case concerns the amount of damages which might be recovered by a person in the position of the applicant. The second deals with the question of whether a plaintiff can continue an action against a joint tortfeasor after settling with one of the tortfeasors.
Other proceedings
On 25 May 2001 the applicant commenced proceedings in the County Court of Victoria against B.S. Stillwell Motor Company Pty Ltd. alleging misleading and deceptive conduct and breaches of various provisions of the Trade Practices Act and the Fair Trading Act 1999 (Vic). That matter was settled in a mediation on 2 October 2003. The County Court proceeding was struck out by consent with no orders as to costs.
The applicant was dissatisfied with the settlement and sued his solicitors, Slater and Gordon. The claim was dismissed by the Legal Profession Tribunal. The applicant then filed a claim with the Victorian Civil and Administered Tribunal. On 24 May 2007 that application was dismissed summarily.
On 5 June 2007 the applicant commenced a proceeding in the Victorian Civil and Administrative Tribunal against Ford Motor Company of Australia Pty Ltd. and Ford Credit Australia Pty Ltd pursuant to the Fair Trading Act.
That application was summarily dismissed on 1 June 2008 by Judge Ross. In the Tribunal proceedings the applicant alleged breaches of ss.32I, 32IA, 32B, 33 and 34 of the Fair Trading Act. Sections 32I, 32IApaid and 32B deal with certain implied conditions and warranties in contracts for the supply of goods. Judge Ross held that the applicant’s claim was bound to file because the Ford Motor Company was not a party to a contract for the supply of goods.
Sections 33 and 34 provide that is it is an offence for any person to, in trade or commerce, supply goods of a kind in respect of which there is a prescribed safety standard, and the goods do not comply with that standard. An action for damages lies if there is a contravention of the provision.
Judge Ross said that the regulations do not contain a prescribed standard for commercial vehicles and so the claim must fail.
Because the applicant was unrepresented Judge Ross considered whether there was any other legal basis for the claim. Under s.108 of the Fair Trading Act the Tribunal had jurisdiction over consumer trader disputes for the purchase of goods and the supply of goods. Judge Ross said Stillwell Ford was the supplier of goods not Ford Motor Company and so the applicant could have no claim under that provision.
Summary dismissal
Section 17A of the Federal Magistrates Act 1999 (Cth) provides that the court may dismiss a proceeding if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding.
Is the application out of time?
The applicant claims damages, and so his claim is pursuant to s.82 of the Trade Practices Act. The time limit is 6 years after the day on which the cause of action accrued.
The applicant commenced the County Court proceeding against B.S. Stillwell on 21 May 2001. The circumstances he relied on are the same circumstances as his application in this court. The alleged representations constituting misleading and deceptive conduct upon which he relies are the same. The only difference is that instead of bringing the claim against B.S. Stillwell directly, he alleges that B. S. Stillwell made the representations as agent for the respondent.
The statement of claim in the application in this court makes it clear that the cause of action arose in the middle of the year 2000, probably by the end of July 2000. The applicant alleges that on or around 24 July 2000 he contacted TDG and advised he was not proceeding to undertake any further deliveries. His claim is for loss of profits as a result of not being able to continue with the delivery contract. His damages are the consequence of the loss of the delivery contract. His cause of action accrued at this time.
The application in this court was commenced by the filing of the application on 15 December 2008. There can be no doubt his cause of action had accrued by 15 December 2002, 6 years earlier.
In Wardley Australia Ltd v State of Western Australia [1992] 175 CLR 514 the High Court said that it is undesirable that limitation questions of the type it was considering, a misrepresentation case, should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. This is the clearest of cases. The applicant has no reasonable prospect of succeeding. His claim is clearly out of time.
Is the application vexatious and an abuse of process?
The respondent argues that because of the previous proceedings, the first being settled and the rest being summarily dismissed, this proceeding should be treated as vexatious and an abuse of process. The previous proceedings include an application in the Victorian Civil and Administrative Tribunal against the respondent in this case.
The application in the Tribunal did not include a claim relying on provisions of the Trade Practices Act. It could not. It did not include a claim of misleading and deceptive conduct under the provisions in the Fair Trading Act corresponding to the Trade Practices Act provisions he relies on in the application in this Court. Therefore, Judge Ross did not deal with a claim of the sort the applicant makes in this court. The Tribunal is not a court. There may be an argument relying on the principle in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 that the applicant is now prevented from bringing the claim in this court because he could have made a similar claim in the Tribunal. The principle is that a plaintiff must include all claims arising out of the same circumstances in one action and will be prevented from bringing a second action relying on a different basis for the claim. I do not consider it is clear enough in this case to say that the applicant has no reasonable chance of success.
The applicant could have included the claim he now makes against the Ford Motor Company in the claim he made against B.S. Stillwell Ford in the County Court. Section 86(2) of the Trade Practices Act gives the County Court jurisdiction over a claim for damages under s.82 alleging breach of provisions of Division 1 of Part V, and the applicant relied on that jurisdiction in his claim against B.S. Stillwell Ford. The claim he makes in this court, a claim for damages under s.82 alleging breach of provisions of Division 1 of Part V, could have been included in the County Court proceedings.
The High Court in Baxter v Obacelo considered that whether a plaintiff, after settling with one tort feasor, can continue with an action against another tort feasor depends on the circumstances. The applicant may be prevented in the circumstances which exist here from now commencing a claim he could have made in the County Court proceedings, but I do not consider it so clear that the applicant has no reasonable chance of success.
Nevertheless, the application is clearly out of time and so must fail.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Paul Moss
Date: 17 September 2009
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