Tange v The Queen

[2000] HCATrans 456

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A22 of 1998

B e t w e e n -

FRED BOYLAN

Applicant

and

STEPHEN FARTHING and ALEGNA PTY LTD

Respondents

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 2.32 PM

Copyright in the High Court of Australia

GAUDRON J:   You are Mr Boylan, are you?

MR F. BOYLAN:  I am Mr Boylan, your Honour, and I appear for myself.

GAUDRON J:   You are Mr Farthing?

MR S. FARTHING:   That is correct, your Honour.

GAUDRON J:   And you appear for yourself, do you?

MR FARTHING:   I have no choice, I have no money.

GAUDRON J:   Take a seat, Mr Farthing, and if we need to hear from you, we will let you know.

MR FARTHING:   Okay.

GAUDRON J:   Yes, Mr Boylan.

MR BOYLAN:   Your Honour, I did supply for the Court some exhibits which are numbered A, B, C and M, that you should have before you.

GAUDRON J:   Does Mr Farthing have copies of these?

MR BOYLAN:   No, he has not.

GAUDRON J:   Well, then, you had better give them to him.

MR BOYLAN:   I do not have any for him.  Mr Farthing has not been in touch with me for a long period of time.  I did write to him, with a registered letter, which I received back, and saying that he had moved from that address.  He did not inform me where he was.  I informed the Registrar and he has never been in contact with me.

GAUDRON J:   Well, it is your application.  If need be, Mr Farthing, we will give you an opportunity to consider these documents.

MR FARTHING:   Just before you proceed, your Honour, Mr Boylan has got me in the Full Court of the Federal Court ‑ ‑ ‑

GAUDRON J:   Sorry?

MR FARTHING:   Mr Boylan has applications before the Full Court of the Federal Court and he is fully aware of my address.

GAUDRON J:   Yes.  Well, if need be, we will ensure you have a copy of these documents.

MR FARTHING:   Thank you very much.

GAUDRON J:   Yes, Mr Boylan.

MR BOYLAN:   Your Honour, could I draw your attention, please, to page 97 of the application book, where it says “Order for Accounting”?  You will see that, on the second paragraph, it says – this is the primary judge’s judgment, he says that:

Murdock reports culminating in the very detailed report of 28 April 1996 –

and on the next page, at the top of the page, he says – he has intimated that the basis of the Murdock accounting and his reports, “particularly the final accounting on 28 April 1996, accurately summarises” the position contractually and accounting “between the parties”.  If your Honour would look at exhibit C2, page 2, that is a letter from the respondent’s solicitors dated 17 May, which is obviously after 28 April, sending a further original bound copy from Mr Murdock and the report of Mr Kennedy’s accounting, that was my accounting, dated 3 May 1996, with a letter, 10 May, which covers the details addressed in that particular letter.

At that exhibit, the accounting of Mr Murdock, and that letter became known as D3 in the courts, though it was not the final accounting, or the ultimate accounting as described by his Honour of 28 April.  In M1, which is the evidence of Mr Murdock, at line 3, Mr Murdock is questioned about:

After hearing Mr Boylan’s evidence and receiving the Kennedy report, did he change his view of his earlier accounting of 28 April?

He goes on at line 16, where he is questioned about the pre-ownership of various vehicles and how much they represent, and his answer was, “Yes”.

GUMMOW J:   Mr Boylan, you have to forget about all this detail, I think.

MR BOYLAN:   Certainly, your Honour.

GUMMOW J:   If you go to page 137 of the application book, there are some passages in which - Justice Perry, I think it was, who gave the judgment in the second Full Court matter, yes – page 137, line 17 or so, where his Honour sums up by saying – do you have that page?

MR BOYLAN:   Line 137, yes.

GUMMOW J:   Page 137.

MR BOYLAN:   Yes.

GUMMOW J:   “Standing back from the matter” – now, do you see that paragraph?

MR BOYLAN:   Yes, I do.

GUMMOW J:   That is what you really have to face in a special leave application, to invite us to intervene in what, on one way of looking at it, is a fairly complicated but factual dispute.

MR BOYLAN:   Yes, your Honour.  What I intend to do ‑ ‑ ‑

GUMMOW J:   We do not ordinarily intervene in that sort of dispute.

MR BOYLAN:   I understand that, but what I am saying is that the judge’s findings of fact were wrong, on evidence it was incontrovertible.  He found that Mr Murdock’s evidence of the 28th summarised everything.  He did not seem to be aware that Murdock then wrote a later report which changed the 28th and accepted a difference of over $20,000 in his accounting.  There was no mention of that.  I did bring that up in the Full Court and the Full Court still did not accept that the primary judge had made a mistake.  Now, my submission is that those pages of evidence ‑ ‑ ‑

GUMMOW J:   There were quite a few pages in the Full Court dealing with Mr Murdock ‑ ‑ ‑

MR BOYLAN:   Well, there may be, your Honour, but they had all the evidence before them and there is also the evidence of Mr Murdock where he says that he recognises that the eighteen and a half thousand capital contribution was the four vehicles and that, after listening to Mr Boylan’s evidence, he decided that that should now be a credit to Mr Boylan.  He then summarised - his Honour Judge Lowrie, in the trial, at the application book 99, his Honour found that the capital contribution from the defendant was $118,004.  Mr Murdock admitted that his later calculations, in light of Mr Kennedy’s evidence and mine, he says at page 6 of M that he needs to reduce the capital of 118 back to 99,500, and that is what he agreed that his Honour is actually wrong on that basis.

There was no way that the capital contribution was 18,500 as found by his Honour.  His Honour also found that the accounting of Mr Kennedy was done on the basis of Mr Murdock’s report, but it can obviously be seen that Mr Murdock’s report, dated the 3rd, was prior to - rather that, Mr Kennedy’s report dated 3 May was prior to Mr Murdock’s report dated 10 May.  He also says that the information that Mr Kennedy accepted was information from Mr Boylan, whereas Mr Murdock got all his information from the books of the company.

But you will see that, in Mr Murdock’s evidence, which is M, that when referring to that particular 18,500, when asked where he got that information from, he says that, at page 3, he says:

Initially, without going into the nth degree of checking everything, I accepted what Stephen Farthing put forward to me.

That he recognised $18,500 of capital which was not contributed, as found by the judge.  That is no small sum, certainly not as far as I am concerned.  Earlier on that page he was given further information which he said, “That was Steve’s thought process”.  He obviously did not receive, or did not get, all that information from the company’s books otherwise his accounts would have been difference.

There are other instances.  He also then, at page 5, agrees that – there is another figure, it is only a small amount of $480 to be listed, and a further erroneously paid payment which Mr Farthing had claimed he had paid, for $1,250, which needs to be removed, bringing the 18,500 to over $20,000.  There was further information, which there are details of, where Mr Murdock, under cross‑examination, later admitted that Mr Farthing had paid his own personal tax for the previous year, 1991, with a company cheque of $7,000, and it had not been taken into account as part of Mr Farthing’s receipts from the company.

On that, Mr Murdock said there was a shortfall by Alegna of $20,000.  For that period, May to June, which covered those accounts, the judge said there was a shortfall by Mr Boylan of $6,800.  That was his findings which, as far as I can say, are indisputable on the evidence.  Towards the end of the trial, in fact, I was not represented by counsel because I could no longer afford it.  His Honour adjourned and allowed me to put forward further additional accounting, which I did, but I did the accounting myself.

His Honour admitted that he had not read that accounting but he rejected it when counsel objected to it being put forward.  I say, without reading it, and in light of the fact that Mr Murdock’s evidence shows that my accounting for the earlier period was better than his, or at least showed his deficiencies, that should have been accepted by the judge and it was an error, under the circumstances, me not being represented.  He knew that I could not afford an accountant.  He should have accepted the evidence or rejected it after he had read it ‑ ‑ ‑

GAUDRON J:   Mr Boylan, it has come to my notice that there is a three year delay in the bringing of this application.

MR BOYLAN:   Well, if you look at ‑ ‑ ‑

GAUDRON J:   One would not normally entertain a matter after three years.

MR BOYLAN:   Well, it is two years actually, your Honour.

GAUDRON J:   Two years, is it?

MR BOYLAN:   I made the application almost immediately after the hearing of the Full Court on the second appeal.  I made the ‑ ‑ ‑

GAUDRON J:   The application I have is dated 21 January 2000.

MR BOYLAN:   No.  The application was initially made much earlier than that – on 1 June – 89, that looks like, and ‑ ‑ ‑

GAUDRON J:   What page can I find that at?

MR BOYLAN:   That is at 141.  Mr Farthing responded with his summary of argument in the High Court, on 10 August 1998 ‑ ‑ ‑

GAUDRON J:   Yes.  We are not concerned about his delay ‑ ‑ ‑

MR BOYLAN:   No, well, mine was prior to that.

GAUDRON J:   Sorry?

MR BOYLAN:   He was answering my earlier – on my application to this Court was the court found ‑ ‑ ‑

GAUDRON J:   No, the judgment of the ‑ ‑ ‑

MR BOYLAN:   Was December – the 23rd 1997.

GUMMOW J:   That is right, and your application for special leave seems to have been June 1998.

MR BOYLAN:   Well, it was, because I applied ‑ ‑ ‑

GUMMOW J:   That is way out of time.

MR BOYLAN:   Well, it was, but if you read my application, your Honour, it says, the application for special leave:

This application is made under subrule 2, and an order is sought that compliance with subrule (1) –

which it was at the time –

be dispensed with.  The Applicant was admitted to hospital on the 7/01 –

which is a week after the judgment of the whatsit –

and for continuing health grounds has been unable to deal with the application within the prescribed limits.

Medical evidence will be –

supplied –

to the Court.

GUMMOW J:   This is at page 167, is it?

MR BOYLAN:   This is at page 141.

GUMMOW J:   No, no, the evidence is at 167.

MR BOYLAN:   Sorry, your Honour, the evidence is at 167.  There is an affidavit from me.

GUMMOW J:   There is a letter from Dr Brooks, setting out ‑ ‑ ‑

MR BOYLAN:   Attached to the affidavit is an exhibit from my doctor, “Mr Boylan is currently unfit to” appear in court.  By that time I had been taken to the Federal Court by Mr Farthing, not the other way around, and then there is a further letter where, previous to this I have had a heart attack.  I required a coronary bypass which I have had to put off because of all this, and you will see on the last page that I have also been suffering from major depression and anxiety.  I am not saying that that is – well, that was a reason, I just could not cope under all the circumstances with all the various things that were going on.

There were also letters to and from the High Court and various delays in that area, but certainly, I did apply to the Court for a waiver of subrule (1) because of special circumstances.  Does that answer that question, your Honour?

GAUDRON J:   Yes, thank you.

GUMMOW J:   You make that application.

MR BOYLAN:   Thank you.  That has rather thrown me, that, but what I was going to say was that during the – I could go on.  There are many many more examples of mistakes in the actual accounting, but I will not bother about that.  But on the Full Court appeal, his Honour said – the judgment said, at application book 125 that – there was no argument on the appeal – the argument on appeal was nothing other than that the true construction of the agreement contrary to any suggestion of repudiation, that is by me. 

If you look at, please, exhibit B14, at the very very commencement of the argument on appeal, which is page 3, as you can see on the appellant’s address, at line 27, when I started by argument, the first thing I said, that the respondents on the appeal have said that they did not allege repudiation, nor did they accept repudiation.  Which was difference from what they said on the first trial and on the first appeal.  They were then saying, on the appeal, that there was no repudiation on my part.  I said that if they say that repudiation was not accepted, there can be no repudiation because the contract is no longer on foot.  That is what Judge Greave said in the first trial, and also what the Full Court on the second trial intimated. 

They say that acceptance of repudiation was not pleaded and it was not accepted.

It is clearly in the documents which I have produced where they say that.  At B11 you will see that, on the cross-appeal in the first appeal, they say:

Contract repudiated by the plaintiff.  Accepted by second defendant.

At page 11.1, 16:

it is not pleaded nor is it the fact that the innocent party accepted that repudiation.

Now, in Foran & Anor v Wight, which I think was a High Court case, it sets out, at page 5, where his Honour says when there is a repudiation, A who has wrongfully repudiated the contract, his obligations in terms of their performance:

he presents the innocent party B with two choices.  He may either affirm the contract by treating it as still in force or he may treat it as finally and conclusively discharged.  There is no third choice, as a sort of via media, to affirm the contract and yet to be absolved from tendering further performance –

Apart from which Mr Farthing, in his own evidence, admitted that he had broken the contract prior to my alleged repudiation and at page 6, in Foran, “Wilson J and I”, whoever the Judge was who was speaking about that, said that Walton Stores at page 404:

referred to and applied the underlying principle that the courts will grant relief to “a plaintiff who has acted to his detriment –

which I did –

on the basis of a basic assumption in relation to which the other party to the transaction has ‘played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it’”.

Then he gives various cases in that.

If you look, please, at C1 page 1, the evidence of Mr Farthing, at line 4 he says:

The result was, I was forced, to some effect, to breach the agreement because I had to place the creditors of the company before a handwritten agreement with Mr Boylan.

He means there the creditors of his new business.  Further, at page 7, he was asked the question at line 18 and onwards:

Mr Boylan asked you, on 21 February 1994, for details of the vehicles that you had sold from Reynella.
A.  He did.

Had he paid the moneys for the cars “into the number one account”, which both parties had agreed, if you read the document, was supposed to be entered.  His answer was:

I advised where possible it had been done so.

“Where possible”.  That was the agreement.  He was supposed to pay it into the account.  He goes on and he gives evidence on the next page, at No 8, that Mr Boylan:

agreed that the new Farthing Motor Company could use $100,000 –

He came to me and said, “I’m stuck for cash, I can’t pay all the money as agreed, I need some capital.”  I agreed, to my detriment, that he could effectually breach the agreement.  Then he comes along later and accuses me of a breach of repudiation.

Just going back to the matter of ‑ ‑ ‑

GUMMOW J:   No, Mr Boylan, you see the time.

MR BOYLAN:   I do see that.  What I was going to say about Justice Olsson said that I had not pleaded repudiation.  I have dealt with that.  But as regards their pleadings, in South Australia it is submitted that a party can alter its pleadings.

GAUDRON J:   I think you must conclude your argument at this stage, Mr Boylan.  Thank you.  Mr Farthing, the Court need not trouble you in this matter.

This case turns on its own facts and raises no issue of general importance such as might attract the grant of special leave.  Time will be extended for the bringing of the application but the application for special leave is refused.

You cannot resist an order that it be refused with costs, I think, Mr Boylan, can you?  You have made written submissions about that, have you not?

MR BOYLAN:   Except that when Judge Lowrie completed his judgment, there was an application made after the trial and he found that, if I could just draw – it is an important point, your Honour.

GAUDRON J:   We are not going to hear you beyond what is said in your written submissions on this matter, Mr Boylan.

MR BOYLAN:   It is in my submissions, your Honour.

GAUDRON J:   Yes.  We will take account of what you have said in your submissions.  But on the basis of what is in the submissions, we see no reason to depart from the ordinary course that special leave is refused with costs.

MR BOYLAN:   Have you read Judge Lowrie’ refusal of the application.

GAUDRON J:   We do not have to deal with you ‑ ‑ ‑

GUMMOW J:   We are not entering in any further dialogue with you, Mr Boylan.

GAUDRON J:   Thank you.  The order is that time is extended, but the application is refused with costs.

The Court will now adjourn until 2 pm on Tuesday next, 15 August, at Sydney.

AT 2.55 PM THE MATTER WAS CONCLUDED