Wheaton (Trading as Marketing Advisory Services) v Chuck

[2000] TASSC 37

[2000] TASSC 37

CITATION:Wheaton (Trading as Marketing Advisory Services) v Chuck & Another [2000] TASSC 37

PARTIES:WHEATON, Jon (Trading as MARKETING ADVISORY SERVICES)

v         

CHUCK, Richard

ABB PRINTING COMPANY PTY LTD (Trading as THE NORTH WESTERN PRINTING SERVICE)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 69/1999
DELIVERED ON:  20 April 2000
DELIVERED AT:  Hobart
HEARING DATE:  4 February 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  J L Dewar
Solicitors:
           Appellant:  In person
           Respondent:  Crisp Hudson & Mann

Judgment  Number:  [2000] TASSC 37
Number of paragraphs:  8

Serial No 37/2000
File No LCA 69/1999

JON WHEATON (Trading as MARKETING ADVISORY SERVICES)
v RICHARD CHUCK and ABB PRINTING COMPANY PTY LTD (Trading as
THE NORTH WESTERN PRINTING SERVICE)

REASONS FOR JUDGMENT  COX CJ

20 April 2000

1. Appeal from the Magistrates' Court Civil Division.

1. This matter has had a tortuous history.  The respondent ("plaintiff") sued the applicant ("defendant") in 1994 for a balance of $840 in respect of certain printing work carried out by it at the latter's request and elected trial in the Small Claims Court at Hobart.  A counterclaim being lodged for a sum in excess of $2,000, it was transferred to the Court of Requests and as the cause of action arose in Burnie, it was sent there for resolution.  Amended grounds and particulars were delivered in October 1995 and to that document an amended defence drawn by the defendant in person was delivered and filed.  On 8 March 1996 the majority of this defence and counterclaim was struck out by order of the magistrate, but leave was given to file an amended defence and counterclaim within 28 days.  This was settled by counsel, but through oversight was not filed within the required time and, Easter intervening, by the time it was filed judgment had been entered by default.  The judgment was set aside on 11 July 1997 and the defendant given a further seven days to file an amended defence and counterclaim.  The defendant's then solicitors, by letter dated 17 July 1997, attempted to file another defence which simply denied or did not admit the plaintiff's amended grounds and particulars.  On the same day, the defendant in person filed yet another amended defence and counterclaim.  On 20 August 1997, the defendant in person filed an application for leave to file still another amended defence and counterclaim.  On 5 September 1997 the court records show that by consent that application was dismissed.

1. Ground 1 of the notice of appeal is to the following effect:

"1       The learned Magistrate erred in law by striking out the Appellants Amended Defence and Interlocatory [sic] Application filed on August 20 1997 after directing the Appellant to seek legal advice and lodge a more particularised Defence which he did."

Quite apart from the fact that the application to file the amended defence referred to was dismissed by consent, no disadvantage has been shown to have flowed to the defendant by reason of his not being allowed to rely on it.  The learned magistrate who heard the case in due course did so on the basis of the amended defence and counterclaim prepared and filed by the defendant in person on 17 July 1997, not on the inadequate holding defence filed by his then solicitors, and the defence and counterclaim he sought to substitute in August 1997 did not significantly depart from the issues raised in his early defence and counterclaim.  To a large extent it merely pleaded some of the evidence he wished to rely upon. Accordingly, there is neither merit nor substance in ground 1.

1. Ground 2 is as follows:

"2       The learned Magistrate erred in law by disallowing the Appellant to present into evidence Statutory Declarations from third parties to the Contract between MAS and The Tasmanian Football League Incorporated (TFL) [and are now in liquidation] who were unable to attend the proceedings and thereby the Court was not able to fully consider aspects of the main Contract and sub-contracted performance between the Appellant and Respondent."

The defendant complained that he had evidence in the form of statutory declarations to the effect that some persons who had paid for the privilege of advertising in a document called a "Football Guide", which contained the season roster of matches, were dissatisfied with the quality of its production and that the defendant suffered loss as a result.  The defendant was unable to produce the statutory declarations so that I was unable to see their contents and appreciate their significance.  In any event, however, although the defendant said at the appeal hearing that he sought to have resort to this form of proof because some of the declarants no longer resided in Tasmania and he did not consider the expense of ensuring their presence in court warranted, it was not an appropriate mode of proof as it gave the plaintiff no opportunity to cross-examine in respect of the assertions made.  Furthermore, on 20 November 1998, the fourth day of the trial, which occupied five days, at the conclusion of the plaintiff's case the defendant sought to put the statutory declarations in evidence and, objection being taken, was told by the learned magistrate that they were not admissible.  According to counsel's note, the learned magistrate looked at all the statutory declarations and ruled that one of them dealt with irrelevant material, while several of the other declarants were resident in Hobart where the court had sat that day and could have been called.  The defendant then commenced his evidence and the matter was adjourned to the following February.  The defendant accordingly had warning of the need to produce the witnesses in person and had the opportunity to do so.  Ground 2 fails.

1. Ground 3 is as follows:

"3       That the learned Magistrate erred in his commencement of hearing the matter when the Respondent/Plaintiffs Claim was initially not in Order and neither was the Appellants Defence in order at the time, and his then failure to establish that there had been an incomplete process of 'discovery' prior to the matter being heard."

I have adverted to the flurry of documentation which preceded this trial.  The first 16 pages of the transcript of the trial show that the learned magistrate spent some time identifying as those representing the issues the plaintiff's amended grounds and particulars of 12 October 1995 and the defendant's amended defence and counterclaim of 17 July 1996.  The case proceeded on that basis.  The learned magistrate was not in error in proceeding because of some defect in the pleadings.  As to discovery, the defendant concedes that no application was made for pre-trial discovery.  Counsel's note confirms that the learned magistrate remarked on the absence of any such request by either side when the alleged inadequacy of discovery was raised by the defendant as a reason for obtaining an adjournment on the 4th day of the trial, such adjournment being refused.  There is no substance in ground 3.

1. Ground 4 is as follows:

"4       That the learned Magistrate erred in his unnecessary and protracted hearing of the matter over some five (5) years and some six (6) or seven (7) or more part-hearings and has himself become confused by evidence and explanation in some twenty-four (24) points to be put forward by the Appellant and as is detailed throughout his nine (9) page DECISION and in particular to the written contract that was entered by the Appellant and his principal the (TFL) and which was tendered as evidence [P12] by the Respondent/Plaintiff in collusion with his witness being the TFL's signatory and a former employee to 'The Agreement' a Mr Peter West."

1. The hearing of the case was conducted over the following dates: 5 December 1997, 26 February 1998, 13 July 1998, 20 November 1998 and 25 February 1999 when the learned magistrate reserved his decision which he delivered on 28 July 1999.  The transcript consists of nearly 400 pages.  There is no basis for criticising the learned magistrate for the facts that the case took so long to hear and was not heard on consecutive dates, but was heard at intervals of several months.  A complicating factor was that the defendant was unrepresented.  The defendant complains that the learned magistrate became confused by the evidence, but though he drew certain conclusions from the evidence which were not to the defendant's liking, I cannot detect any error of fact, given that the learned magistrate was in the best position to assess the credibility of the witnesses he saw and heard.  Making allowance for that advantage, it is difficult to draw from the material before the Court any other conclusion than that arrived at by the learned magistrate.  Given the difficulties the defendant had in articulating on the hearing of the appeal the precise errors the magistrate allegedly made, I have found it impossible to detect error. 

1. In respect of the claim of collusion, the defendant pointed to a later notation put by the plaintiff on the original of a facsimile sent to the defendant upon which the latter heavily relied.  He claimed an order for certain Football Guides had been inadequately fulfilled and that they had been scored in such a way that they fell to pieces and hence were likely to be discarded by the recipients to whom the sponsors had directed their advertisements.  When the defendant complained, the plaintiff sent a facsimile which said in part:

"I will reprint as needed and ASAP the football guides without charge."

The defendant claimed that because of the defective quality of the guides as printed, the Tasmanian Football League, which had ordered and distributed them, cancelled another contract with the defendant.  The plaintiff made a note on the original facsimile, 27 months later after proceedings had been instituted, to the following effect:

"9.7.97   Note.  The above was written in response to a phone claim that the guides were faulty.  This subsequently proved incorrect after checking with client (Peter West MKT Manager TFL) and therefore this fax sent 12.4.94 is invalid."

The plaintiff gave evidence that he had agreed to the proposal in the facsimile taking the defendant's complaint at face value, but that having made subsequent enquiries, he was informed that the Tasmanian Football League, whose marketing manager Mr West was, had not rejected the guides, that only a few had faults with them and that the reason the contract with the defendant was terminated was due to other matters unrelated to the printing of the guides or other publications provided by the plaintiff.  The guides were not returned to him and he did not reprint them as foreshadowed in the facsimile.  Mr West was called by the plaintiff and also gave evidence that the contract with the defendant was cancelled for reasons other than any dissatisfaction with the Football Guides printed by the plaintiff.  The defendant had ample opportunity to ventilate his claim of some form of collusion between the plaintiff and Mr West and the learned magistrate's acceptance of them as "impressive in regard to their evidence" and not "shaken under cross-examination" justified his acceptance of their evidence.  The plaintiff's notation on the original facsimile is incapable in itself of proving some form of collusion.  It is true that Mr West acknowledged that some of the sponsors of the guide had expressed some concern about their quality, but he said they had been distributed throughout the State and he did not remember any being returned.  The Tasmanian Football League did not return any as unusable.  The learned magistrate's ultimate finding that the guides had not been proved to be so faulty or defective as to constitute a total failure of consideration in respect of the contract for their production or were of such a nature as not to be in substantial conformity with the agreement between the parties cannot be assailed.  The appeal must be dismissed.