Wilson v Tetley

[2003] NSWCA 124

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Wilson v Tetley [2003]  NSWCA 124

FILE NUMBER(S):
40244/03

HEARING DATE(S):            16/05/03

JUDGMENT DATE: 16/05/2003

PARTIES:
Dennis Paul Wilson (Claimant)
Jason Tetley as Trustee for Tetley Cattle Co Trust (Opponent)

JUDGMENT OF:      Mason P Meagher JA Ipp JA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):        
ED 1955/03

LOWER COURT JUDICIAL OFFICER:     Gzell J

COUNSEL:
J S Wheelhouse (Claimant)
In Person (Opponent)

SOLICITORS:
Susan Hill (Claimant)
In Person (Opponent)

CATCHWORDS:
LEAVE TO APPEAL - Small amount of damages - Serious factual dispute - Difficulties with proving the claimant's case at trial - No important point of principle - Summons dismissed. ND

LEGISLATION CITED:

DECISION:
Summons for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40244/03
ED 1955/03

MASON P
MEAGHER JA
IPP JA

Friday 16 May 2003

DENNIS PAUL WILSON v JASON TETLEY as TRUSTEE FOR TETLEY CATTLE CO TRUST

Judgment

1. IPP JA: This is an application for leave to appeal and an appeal heard concurrently. The facts giving rise to this matter are set out in the Court’s judgment of 2 April 2003, [2003] NSWCA 98.

2. In this hearing, the claimant sought orders vacating the orders made by Gzell J on 1 April 2003 and in lieu thereof sought the following orders:

   (1)An order that the defendant answer on oath the following interrogatories, namely:

   (a)        What was the name of the sire whose semen was used to artificially inseminate the Murray Grey cow Kaltara Grey Dame BJO R809 on or about 20-23 January 2003?

   (b)        What was the name of the sire whose semen was used to artificially inseminate the Murray Grey cow Newhaven Park Queen Lylia AU N72 on or about 20-23 January 2003?

   (2)Alternatively, an order that the defendant attend before the Court or an officer of the Court and be orally examined on:

   (a)        The identity of the sire whose semen was used to artificially inseminate the Murray Grey cow Kiltara Grey Dame BJO R809 on or about 20-23 January 2003.

   (b)        The identity of the sire whose semen was used to artificially inseminate the Murray Grey cow Newhaven Park Queen Lylia AU N72 on or about 20-23 January 2003.

   (3)Alternatively, an order that the defendant produce any document or thing in his possession, custody or power relating to the identity or description of:

   (a)        The sire whose semen was used to artificially inseminate the Murray Grey cow Kiltara Grey Dame BJO R809 on or about 20-23 January 2003.

   (b)        The sire whose semen was used to artificially inseminate the Murray Grey cow Newhaven Park Queen Lylia AU N72 on or about 20-23 January 2003.

3. Because the facts are discussed in the earlier judgment of the Court, I do not propose to repeat them.  I should, however, say that when the Court gave its reasons on 2 April 2003 it did not have the benefit of any submissions made on behalf of the opponent who did not appear then.  The opponent has appeared today and has put his side of the dispute.

4. As a result of discussion between the bench and the bar in the course of the application, the information sought by the claimant in regard to one of the two sires of the embryos in question in this case was disclosed satisfactorily to the claimant.  The information concerning the identity of the other sire however was not.  Mr Tetley says that he is not now in a position to remember which sire it was and he says that at the request of the claimant he left a document recording the requisite information on the kitchen table at the claimant’s residence.  This is disputed by the claimant and this is a fundamental factual issue in the case.

5. Thus, the only issue remaining between the parties is the identity of this remaining sire.  At most, the damages that the claimant would suffer by reason of any breach of duty on the part of the opponent as alleged would be $45,000 and there is a real prospect that it would be less than that.  Unless there was an important point of principle, according to the usual practice of this Court, leave to appeal would not be given.

6. There is no important point of principle in issue in this case, although I should say that in my opinion the approach of the trial judge was incorrect.  His Honour considered that the original application for an injunction should be refused, on the grounds that damages were an adequate remedy.  In my opinion he was wrong in this regard; the claimant has a contractual right to the information for which damages would not be sufficient recompense.  Nevertheless, because of the serious factual dispute between the parties, evidence was necessary to resolve the question whether the opponent had provided the information or not.

7. Because of the way the case went off before his Honour, the opponent was not able to read his affidavit and lead other supporting evidence.  There was no investigation whatever into the factual issues.  His Honour simply decided the matter on the basis that damages was an appropriate alternative remedy.

8. I appreciate that the claimant now wishes to assert a right that he would ordinarily be entitled to claim, namely the information to which he was entitled by reason of the contract between him and the opponent, but in my view leave to appeal should be refused, firstly, because of the small amount of money involved, and, secondly, by reason of the absence of any point of principle and, thirdly, because in my view on the objective facts the probabilities are that the claimant would have great difficulty in proving his case at trial.

9. In the end, the fundamental issue between the parties will involve the claimant’s word against the opponent’s word.  The claimant asserts that the identity of the intended sires was never discussed between him and the opponent before the cows were inseminated.  The opponent disputes this and states that such a discussion took place and the identity of the sires was agreed and in fact, according to the opponent, the cows were impregnated in accordance with that agreement and the claimant well knows or should know the identity of the bull in question.

10. The difficulty for the claimant is that prior to the eventual flush following the insemination by the two bulls in question, he sent a document to the Murray Grey Society I think it is in which he recorded the name of the bull that had inseminated the cow, Newhaven Park Queen Lylia AU N72.  It is difficult to understand how he could have nominated the sire of the embryo being carried by that cow without having had a discussion with the opponent about it.  If there was such a discussion, that would be contrary to his testimony and would support the opponent’s version.

11. Of course, in the end it would be open to the trial judge to come to a different conclusion, but as I have said, the objective probabilities are, in my opinion, strongly against the claimant.

12. I should also say that I appreciate that it is still open to the claimant pursuant to the order of his Honour to claim damages and there is nothing this Court can say about that and litigation may still follow, but because of the view that I take of the claimant’s case as a whole, justice would be done if the application for leave to appeal were to be dismissed and that is the order that I propose.

13. MASON P:  I agree.

14. MEAGHER JA:  I also agree.

15. MASON P:  The summons is dismissed with costs.

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LAST UPDATED:            23/05/2003