Skinner v Stillwell Motor Group Cars Australia Pty Ltd (No.2) - [2012] FMCA 673

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SKINNER v STILLWELL MOTOR GROUP CARS AUSTRALIA PTY LTD (No.2)

[2012] FMCA 673

COMPETITION and CONSUMER LAW – Application under Rule 16.05 of Federal Magistrates Court Rules 2001 – no reasonable excuse for failure to attend previous hearing – subpoena issued by Applicant not complied with – no need to comply with subpoena – no merit in substantive application – application dismissed with costs.

Federal Magistrates Court Rules 2001, Rule.16.05

Applicant:

GRANT JASON SKINNER

Respondent:

STILLWELL MOTOR GROUP CARS AUSTRALIA PTY LTD T/A KNOX FORD

File Number:

MLG 3 of 2012

Judgment of:

O’Dwyer FM

Hearing date:

18 April 2012

Date of Last Submission:

18 April 2012

Delivered at:

Melbourne

Delivered on:

18 April 2012

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Pasagic

Solicitors for the Respondent:

MacPherson + Kelley

ORDERS

The Application filed on 7 March 2012 is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 3 of 2012

GRANT JASON SKINNER

Applicant

And

STILLWELL MOTOR GROUP CARS AUSTRALIA PTY LTD T/A KNOX FORD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

This matter comes before me today on an application by Mr Skinner under Rule 16.05 of the Federal Magistrates Court Rules 2001 whereby, under that rule, where a party has failed to attend an earlier hearing, it is possible to have the order made at an earlier hearing set aside. However, there are two limbs to be satisfied before that can happen. First, such a party would need to have a reasonable excuse for the non-attendance on the earlier Court date, and secondly he will need to persuade the Court of the merit of the substantive application if the earlier order was set aside.
At the earlier hearing, which was 24 February 2012, there was a hearing in the absence of Mr Skinner at which Mr Panna SC appeared on behalf of the Respondent. He addressed the Court and provided me with material in relation to the nature of Mr Skinner’s substantive application before this Court and the Respondent’s response to that application.
The substantive application that Mr Skinner had initiated is set out in my reasons given on 24 February 2012, but in short summary the background to it is this. In 2000 Mr Skinner purchased a motor vehicle, being a truck with a refrigerated cabin, from the Respondent (who was trading as Knox Ford) for the purpose of his own business centred in the Echuca area. He financed that purchase through a loan from Ford Credit on a Corporate Hire Purchase Agreement.
The truck proved unsuitable, certainly from Mr Skinner’s point of view, for the purpose it was purchased. As a consequence he alleged he incurred loss and was unable to further his business which was the delivery of goods/foodstuffs to various places in the border district around Echuca. He issued proceedings in the County Court. He had instructed solicitors to represent him in those proceedings and in 2003 he compromised the proceedings. A settlement was reached which saw the parties also execute a release.
A significant part of the settlement was that the Respondent, Knox Ford, would indemnify the Applicant in respect of his obligations arising out of, or relating to the Ford Credit Corporate Hire Purchase Agreement. Now, many years have passed since that event (9 years) and it is beyond dispute that there has never been a claim on Mr Skinner for him to make any payment due under that Corporate Hire Purchase Agreement.
However, Mr Skinner made telephone inquiries of Ford Credit in more recent times and ascertained that on the books at Ford Credit they were still showing a debt owing by him. This caused him concern. He then initiated the substantive proceedings in this Court on the basis that there had been a breach of the earlier settlement he understood he had with the Respondent. He now, in the substantive proceedings issued in this Court, attempts to re-agitate all of the County Court issues that were previously compromised. The reality is, however, there has not been a breach of the settlement he reached – no demand has been made on him which would have enlivened the Respondent’s obligation to indemnify him.
There was also a general release executed by the Applicant that bars him from issuing any proceedings associated with the issues that were compromised in the County Court proceeding.
Clearly, the substantive application was ill-conceived. I have referred to and explained that in my earlier judgment on 24 February 2012. Mr Skinner, however, has a fixation about the fact that a subpoena was issued, which subpoena was going to make Ford Credit produce the documents confirming that there was a debt still owed by him to Ford Credit. He says that subpoena was not properly considered on

24 February 2012 and not properly acted upon. He therefore applies through Rule 16.05 to set aside my earlier decision so as to be able to enforce his subpoena.
What he hopes to gain from that subpoena is proof of the fact that on the books of Ford Credit there was, at the time he rang, a record of a significant amount of money being owed by him. However, there was evidence before me last time it came to court that Ford Credit has now cleaned up its books to show that there is no debt owing and the purpose of the subpoena would only just confirm the evidence of Mr Skinner that on his inquiries he was told that there was a debt owing. The fact that a debt was recorded against the Applicant’s name does not amount to a breach of the settlement reached.
In any event, even should Ford Credit had, after the inquiry having been made by Mr Skinner, decided to issue proceedings to recover a debt, they would be statute barred. There is no possibility for them to have successfully claimed money from the Applicant. But, for the sake of argument, should they have done so and should there have been any debt payable by Mr Skinner, then he could then enliven the indemnity provision to insist that the Respondent indemnify him. But none of that has been enlivened, as in reality, no demand has been made of him, and indeed, it is now acknowledged that no money is owed by him. Without doubt, there has not been a breach of the settlement.
The proceedings in the first instance are ill-conceived and any subpoena that has been issued is of no force or effect. It is a nullity.

It does not have any legs and the there is no merit in Mr Skinner’s substantive application. The second limb, therefore, is not satisfied.
In respect of the first limb of what is required to be satisfied under

Rule 16.05, he fails there. I have heard very little evidence in support and I am not persuaded that he passes the first limb; namely, that he has a reasonable excuse for not attending on 24 February 2012.

Having regard to all of the above, I intend to dismiss Mr Skinner’s application.
In respect of the issue of costs, there is a significant litigation history of Mr Skinner concerning these parties, and others, arising from the dispute the Applicant has had with the Respondent. They include County Court proceedings, VCAT proceedings, and they also include various complaints made against past practitioners for the Applicant to responsible authorities. In all of those proceedings he has been unsuccessful, but he has persisted in light of what can only be described as obvious outcomes.
In respect of the costs, I am persuaded that I ought to make an order for costs and they should be in the sum of $2,200, being the scale costs. There will be an order for that amount of money.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Date: 14 August 2012