Khanna v Sabi Foods International

PART B - THE LOCAL COURT PROCEEDINGS

1. The plaintiff commenced the proceedings in the Local Court on 18 September 2013 (case no. 2013/281755).
2. An Amended Statement of Claim was filed on 12 December 2013. A Further Amended Statement of Claim was filed on 13 February 2014 (see Annexure "A" to Mr Garnon's affidavit).
3. The Plaintiff's claim in the Local Court was pleaded in the Further Amended Statement of Claim filed in the Local Court on 13 February 2014, a copy of the same being Annexure "A" to the affidavit of Mr Garnon, solicitor on the record for the defendants, affirmed 26 August 2015.
4. Paragraph 12 of the Amended Statement of Claim is in the following terms: [12] The Defendant are liable in Negligence, False, Misleading, deceptive and Breach of Duties of Care for the harms caused to the Plaintiffs that were materially contributed to or caused by their acts and omissions. 12.1. Plaintiff purchased the product 'Miller Pure Ghee' by the brand Name 'Miller" from Patel trading Blacktown NSW date 5 November 2012 and Patel Brothers Quakers Hills NSW invoice date 9 November 2012. Defendants' identifies themselves on the product Marketed by Sabi Foods International (Australia) Pty Ltd 31-35, Letcon Dr, Dandenong South, Victoria 3175, Australia 12.2. Sabi Foods International (Aust) Pty Ltd (ABN 31 083 441 687) Importer and carries on business of a brand or mark of the person to be applied to goods supplied by the person are liable in False, Misleading and Deceptive, Negligent Misrepresented, Negligence, Duty of Care and otherwise for the harms caused to the Plaintiff that were materially contributed to or caused by their acts and omissions. 12.3. These Damages were committed because Plaintiff purchased the products of Defendants' Brand 'Miller Pure Ghee' the manufacturer has a duty of care owed to their consumers and plaintiff relied on the Defendants' Australian Business Name and Number [ABN 31 083 441 687] and product of Australia."
5. In paragraph 13, subtitled "Second Defendants" it was, in part, alleged that the directors (as named) were vicariously liable "in law for legal claims made against its agents or employees for harms created by them in the course of their duties".
6. Various allegations of breach of duty were included in the Amended Statement of Claim at paragraphs [25]-[26], [32], [33], [34] (as to expiry of use-by date on 28 October 2012), [36], [37].
7. In essence, the plaintiff's claim before the Local Court was a claim in negligence for pure economic loss. He alleged that he purchased a product from a third party, Patel Trading and/or Patel Brothers. The product, it was alleged, was packaged and distributed by the first defendant. The plaintiff's case in the Local Court was that the product had passed its use by date. His case was that he, without realising that the product had passed its use by date, used it in the process of making Indian sweets. He claimed that by reason of the fact that the product had exceeded the use by date he could not fulfil an export order. He sought an award of damages in negligence equivalent to the value of the order he alleges he was unable to fulfil.
8. The proceedings had a protracted history in the Local Court. As the affidavit of Mr Garnon reveals, the proceedings were listed before the Local Court on 28 November 2013, 13 February 2014, 26 February 2014, 24 April 2014, 6 May 2014, 17 July 2014, 21 July 2014, 7 August 2014, 26 August 2014, 18 September 2014, 23 September 2014, 11 November 2014 and 2 December 2014. As earlier noted, the proceedings were then listed for hearing on 9 December 2014 and 13 March 2015.
9. In the course of the various hearings, orders were made against the plaintiff in relation to various interlocutory applications filed by him concerning the production of documents on subpoena. Orders were made on 21 July 2014 by Magistrate Stapleton together with an order for costs against the plaintiff in the amount of $2,000.
10. On 7 August 2014 Magistrate Bradd made an order against the plaintiff and additionally an order for costs in the sum of $1,000.
11. On 23 September 2014, Magistrate O'Brien made an order against the plaintiff and a costs order against him in the amount of $3,000.
12. The proceedings were heard by Magistrate Pierce on 9 December 2014 and 13 March 2015. The plaintiff did not serve or rely upon any evidentiary statements, affidavits or expert reports: Mr Garnon's affidavit at [11].
13. The plaintiff on the first hearing date sought to tender a large number of documents. Objection was taken to many of them. The Magistrate admitted a limited number of documents. The latter constituted the plaintiff's evidentiary case.

Factual Background to the Plaintiff's Claim

1. In the course of the plaintiff's business, carried on by him as NYSA International, the plaintiff alleges that he received an order (Order 261) on 19 October 2012 from an entity, NYSA International Limited (NYSA UK) ([26Da] of the Amended Statement of Claim).
2. Order 261 was said to have been subject to a number of conditions. Those were referred to in descriptive terms in paras 30.1.3 to 30.1.10 of the Amended Statement of Claim. Those subparagraphs, however, did not specify the precise or exact terms of Order261.
3. Order 261 appears to have required 1,000 kg of Bundi Ladhoo and 1,000 kg of Gulab Jamun (Indian sweets) to be shipped by airfreight on 19 November 2012. Presumably, the costs of shipping 2 tonnes of sweets from Australia to the UK by airfreight would be significant.
4. The plaintiff's case was that on or about 5 and 9 November 2012, he purchased two cans (400g and 800g respectively) of the product, Miller Pure Ghee, from Patel Trading and Patel Brothers in Blacktown ("the Store") in order to fulfil Order 261 ([33] of the Amended Statement of Claim). The Store was not related to either of the defendants. It was said to have been a retail store that acquired Miller Pure Ghee and then on‑sold the product (and other products) to customers.
5. A can of Miller Pure Ghee purchased by the plaintiff allegedly had a stamp (presumably put on by the manufacturer) which said "Use by 28 October 2012". The plaintiff's case was that by the date he purchased the can, someone had put a sticker over the use by date stamp that said "Best before 28 October 2012".
6. On or about 13 November 2012, at the time of checking Order 261 before export, the plaintiff alleges that he became aware that the Miller Pure Ghee he purchased on 5 and 9 November 2012 was past its use by date. In addition, his case was that the product did not have a batch number and was neither "Made in Australia" nor a "Product of Australia". Consequentially, the plaintiff claimed that he was not able to comply with Order 261.
7. He alleged that he sent the remainder of the product sought by Order 261 to NYSA UK. He further alleged that the order was rejected by NYSA UK.
8. In the proceedings the plaintiff alleged that the defendants owed him a duty to exercise due care and skill to ensure they supplied safe food. Further, he contended that such a duty of care was commensurate with statutory duties that bound the defendants.
9. He alleged that the defendants breached their respective duties of care by selling the Miller Pure Ghee product: (i) when it was past its use by date; (ii) without having a batch number; (iii) that was neither Made in Australia nor a Product of Australia; and (iv) that listed false ingredients.
10. The plaintiff did not make any submissions in the proceedings in the Local Court on the issues of causation and/or remoteness of damage.
11. In addition to his claim in negligence, the plaintiff alleged that the defendants' conduct in selling the produce was false, misleading and deceptive in that they failed to take adequate precautions against making what was said to be false or misleading representations in respect of the following: 1. A representation that Miller Pure Ghee is Made in Australia; 2. A representation that Miller Pure Ghee is a Product of Australia; 3. A representation that Miller Pure Ghee is Halal; 4. A representation that Miller Pure Ghee is "Goodness of Nature"; and 5. A representation that Weight of Miller Pure Ghee.
12. In respect of the above allegations there was no specific claim made that the defendants' conduct constituted a breach of s 18 of the Australian Consumer Law.
13. The Decision of the Local Court
14. Magistrate Pierce on 13 March 2015, in dismissing the plaintiff's action, addressed various shortcomings in the plaintiff's pleadings and the claim in general. His Honour stated: "The plaintiff's case will fail simply for these reasons - as to the negligence claim pleaded variously as negligence, breach of duty and other things you do have to be vulnerable if you are claiming economic loss, you have to show a vulnerability. You do not show any vulnerability. Your own papers show that you are an experienced business man. You were not vulnerable, it is impossible to succeed in negligence. It is impossible to succeed in the case of misrepresentations made by the defendants for the reasons I have just been saying. It is impossible to rely upon future fact representations as constituting misleading or deceptive conduct, particularly because you have not put it in your pleadings and it is simply not fair to your opponents. In respect of your claim, your further amended claim, I trust I am not doing you an injustice but, and I hope I am not doing you an injustice because it is extremely long, but almost all of it is irrelevant, almost all of it is not properly pleaded. You plead the Civil Liability Act, essentially that has nothing to do with anything except insofar as it might have been possible under s 35 of that Act to apportion some liability of someone else such as perhaps the Patel Bros, or whoever it was. You plead what you call Mercantile Law, Consumer Protection and Trade Practices. That is vague, that does not help us. You make these references to the Imported Food Control Act and what you call the Food Act which I assume is a New South Wales Act. I do not care what it is, none of those things are capable of being sued for. As I said before lunch, it was the law at one point that one could sue, one was entitled to construct a cause of action if one had suffered loss as a result of a non-compliance with some statutory provision or regulation but that is no longer regarded as good law. It is pretty much impossible for you to rely upon a factual matter such as wrong or misleadingly put expiry dates or use by dates on the cans because you did not buy the stuff from the defendants, you bought it from Patel and Patel might have had it for three years for all we know. There is no way of knowing. It is not capable of being shown to be the defendants' fault." (T 13 March 2015 p 132).
15. Magistrate Pierce delivered an ex tempore oral judgment in favour of the defendants. He made the following orders: (1) Verdict and judgment for the Defendants. (2) Plaintiff ordered to pay the Defendants' costs on an indemnity basis, as agreed or assessed. (3) Twenty-eight days allowed to pay. (4) Previously ordered costs now payable forthwith.

PART C - NATURE OF THE APPEAL

1. On 8 April 2015, the plaintiff served an unsealed Notice of Intention to Appeal. On or around 27 April 2015, he served a Summons Commencing an Appeal filed on 15 April 2015 based on the following five "Appeal Grounds": "[1] Error of Magistrate Pierce by not considering properly the written submission, Oral submissions, evidence, subpoena (production not supplied) and other material provided by plaintiff. Establishing the allegations in the absence of subpoena production is impossible such as; 0.1. Miller pure Ghee is Pure Butter fat 0.2. Miller Pure Ghee was expired at the time it was purchased 0.3. Miller pure Ghee is not made with cow's milk 0.4. Miller pure Ghee s not the product of Australia 0.5. Miller pure ghee is not certified as 'Halal'. [2] The court below refusal to amend statement of claim and not to order disclosure on supplied production involved a breach of the rules of natural justice; the refusal was infected by bias defendants. [3] Magistrate Pierce did not consider affidavit filed and served on 22 September 2014 by plaintiff was not presented (disappearing from registry) to the Magistrate Christopher O'Brien on final hearing date 23 September 2014. [4] Error of Magistrate Stapleton determination to allocate the date for final hearing was improper using her power irrelevantly without considering that plaintiff is self-represented and is because of ill-health (high risk patient); 4.1. Plaintiff was to undergo few other test and cardiac procedures; 4.2. Defendants and FTA food solutions pty Ltd has not provided subpoena production, FTA food claiming to be manufacturer of the product (Miller Pure Ghee) 4.3. Magistrate Stapleton did not consider letter provided by first second defendant for not being manufacturer of the product (Miller Pure Ghee) was the matter to be considered as surprise 4.4. Further not supplying the subpoena production, matter continuously remained in error. Presiding Magistrate Stapleton knowingly bias the defendant [5] Error of magistrate Stapleton and presiding magistrate allocating date for final hearing in the absence of plaintiff and annexure - A, B and C pursuant to civil procedure - 1, was a result of Error in Law bias defendant while plaintiff was seriously unwell."
2. As noted above, the defendants filed a Notice of Motion seeking an order for dismissal of the proceedings on the basis that they have been brought out of time and on the basis that they are incompetent, or alternatively an order that the plaintiff to be required to pay an amount by way of security for costs of the proceedings.
3. The defendants note in their written submissions, "the grounds of appeal are not concisely stated and it is difficult to identify the Plaintiff's grounds of appeal with any level of precision. Nonetheless, a number of the orders and grounds of appeal appear to be interrelated". The defendants' submission as to the grounds of appeal are discussed at [54]-[77] below.
4. In relation to previous orders made by the Local Court, the affidavit of Mr Garnon establishes that there has been a failure by the plaintiff to pay the costs orders made against him and that the defendants' costs of defending the Local Court proceedings were slightly in excess of $107,000 (inclusive of professional fees, disbursements, GST and counsel's fees): at [14].
5. Mr Garnon noted that the conduct of the plaintiff's claim had been significantly protracted on account of the plaintiff's lack of legal representation: at [15]. He confirmed that the plaintiff has not paid the fixed sum costs orders which were ordered to be paid forthwith: at [18].

Dismissing the Appeal: The Summons is out of Time

1. The defendants relied upon written submissions, being the Defendants' Outline of Submissions dated 20 November 2015 and Defendants' Supplementary Submissions dated 1 December 2015.
2. In support, as earlier indicated, the defendants relied upon the affidavit of Mr Ganon and the affidavit of Zachary Carrigan, solicitor, affirmed 25 November 2015.
3. As noted above, Magistrate Pierce delivered an ex tempore judgment in favour of the defendants on 13 March 2015. The Summons Commencing an Appeal was filed on 15 April 2015.
4. Rule 50.3(1)(a) of the UCPR required the plaintiff to file and serve his Summons within 28 days of the material date (namely 13 March 2015). Accordingly, the Summons should have been filed by 10 April 2015. The Summons did not include an application for an extension of time, as required by r 50.3(2) of the UCPR.
5. The defendants in their Written Submissions noted that the institution of an appeal out of time is an irregularity rather than a nullity and may be allowed to proceed to hearing if the circumstances would otherwise justify the proceedings being dealt with on their merits: s 63 Civil Procedure Act 2005 (NSW) (the CPA); and McDowell v Fox [2003] NSWSC 495 at [22].
6. The defendants however submitted that the circumstances do not otherwise justify the matter proceeding to hearing and that accordingly the Summons should be set aside pursuant to s 63(3)(a) of the CPA. The defendants submitted that on the very limited evidence that was admitted in the plaintiff's case before the Local Court, the plaintiff failed to propound any viable cause of action in that Court. To permit the appeal to be brought out of time the defendants contended, would be completely futile given, inter alia, the failure of the plaintiff to establish any cause of action against them.
7. On 25 November 2015, the Court received submissions from the plaintiff which, in the most general terms, address the defendants' contention that the appeal has been brought out of time. Whilst the plaintiff does not expressly provide an explanation as to the lateness of the appeal, he submitted that he was involved in a truck accident on 30 October 2009 and was admitted to hospital on 29 October 2015 for cancer treatment. The submission was in the nature of a mere assertion without evidence to support it.
8. Leaving to one side the fact that those submissions were provided out of time, there is a fundamental failure to appropriately respond to or address the specific contentions made by the defendants in their submissions or how any alleged medical condition or treatment prevented him from filing the proceedings in time.

Defendants' Submissions

1. The plaintiff's Summons states that the plaintiff appeals from the "whole decision below". The defendants noted that the plaintiff failed to state what decision he seeks in place of the decision of the court below, as required by r 50.4(1)(b) of the UCPR.
2. The defendants contend that the plaintiff's appeal is incompetent as it fails to raise a question of law and is "otherwise doomed to fail". For that reason it was argued leave to appeal would be required in order to challenge the decision of the Local Court on the bases of the many grounds relied upon. The defendants submitted that leave should not be granted in respect of the grounds relied upon. The defendants accordingly submitted that the appeal should be dismissed.
3. The defendants noted that the Further Amended Statement of Claim "…suffered from various syntactical issues that made it very difficult to follow" and that the pleading "confused a number of legal concepts", referring to a number of pieces of legislation without identifying the relevant section relied upon: Outline of Submissions at [9].
4. The defendants characterised the plaintiff's claim as being essentially based in negligence for pure economic loss. In that respect it was stated: "… the Plaintiff alleged that he purchased from a third party a product that was packaged and distributed by the first defendant. The product had passed its use by date. Without realising the product was passed its used by date the Plaintiff used the product in the process of making Indian sweets. As a result, he could not fulfil an export order. He claimed damages in negligence equivalent to the value of the order he could not fulfil. The second defendant is a director of the first defendant": Outline of Submissions at [10].
5. In their Outline of Submissions at [11] the defendants noted that in the course of the proceedings heard on 9 December 2014 and 13 March 2015 the plaintiff did not serve or tender any evidentiary statement or evidence, did not rely upon expert evidence and did not himself give evidence. The limited number of documents tendered and admitted into evidence were set out in a schedule to the Outline of Submissions (p 12). These documents are as follows: various invoices; various photos; letter from Sabi Foods to the Consumer, Trader & Tenancy Tribunal dated 29 April 2013; Sabi Foods Product Sheet dated 10 April 2013; halal certification - Australian Dairy Packaging; certification of registration - Sabi Foods; letter from FTA Food Solutions Pty Ltd; and certificates of registration and certificate of incorporation - NYSA International.
6. The defendants submit that the evidentiary basis to support a claim in negligence for economic loss, or for statutory breach, was materially deficient.
7. The plaintiff's grounds of appeal were also addressed by Mr Garnon in his supporting affidavit. He submitted that they do not appear to give rise to any proper basis for the appeal against the decision or orders made by Magistrate Pierce on 13 March 2015.
8. In relation to specific grounds and orders sought in the Summons, the defendants submissions may be summarised as follows:

(i) First, second and fourth grounds of appeal

1. These grounds concern a subpoena, a copy of which is Annexure D to the affidavit of the plaintiff dated 1 September 2015.
2. The defendants rely upon the history of the issue concerning the subpoena as set out in paras [22]-[25] of Mr Garnon's affidavit.
3. In the defendants' submission, in light of that history, the matter of the subpoena having been raised on a number of occasions before the Local Court, it was contended that the further agitation of the issue is an abuse of process: Submissions at [30].
4. In addition it was submitted that the grounds relate to an interlocutory judgment and leave would be required.

(ii) Amendment of Statement of Claim (order 4 - second ground of appeal)

1. As to the plaintiff's contention in the second ground of appeal that the refusal by the court to amend the Statement of Claim constituted a breach of the rules of natural justice and its decision in that respect was infected by bias, the defendants noted that no basis was identified for such allegations.
2. The defendants stated that it appears that the plaintiff was referring to his application at the pre-trial review to vacate the trial date. It was noted that in this respect the plaintiff, in effect, is seeking to appeal against an interlocutory judgment and can only do so by leave. No leave was sought.
3. It was additionally submitted that the plaintiff was out of time. The Local Court refused the plaintiff's application to vacate the trial date on 2 December 2015 at the pre-trial review.
4. It was further noted that the plaintiff failed to serve a proposed Second Further Amended Statement of Claim or seek leave to amend the Further Amended Statement of Claim.

(iii) Reliance on "old and new" evidence (order 6)

1. It was noted that the plaintiff seeks an order permitting "old and new evidences" [sic] provided by him, subsequently provided by FTA Solution Pty Ltd and Sabi Foods: para [37] of the Plaintiff's Outline of Submissions.
2. It was noted that to rely on further evidence the plaintiff must establish "special grounds" to justify the Court receiving the evidence.
3. It was submitted that the requirements for adducing "further evidence" (pre-trial unavailability, credibility and the probative value of the evidence) had not been established.
4. There was no evidence, it was submitted, that any further evidence was unavailable at the time of the hearing and no evidence as to its probative value.

(iv) Costs (order 7)

1. It was noted that the plaintiff seeks "costs orders (no order as to costs)" [sic].
2. The defendants submitted that to the extent that the plaintiff seeks to appeal costs orders made by the Local Court, he requires the leave of this Court. Such leave had not been sought.

(v) "Proper" consideration of the plaintiff's evidence and submissions (first ground of appeal)

1. It was submitted that this ground does not on its face raise a question of law. It was noted that the plaintiff does not allege that the court below did not consider the plaintiff's evidence or his submissions (which may raise a question of law): Outline of Submissions at [42].
2. It was submitted by the defendants that at best this appeal ground concerned the learned Magistrate's consideration of the plaintiff's submissions and evidence but no question of law is raised: Outline of Submissions at [43].
3. It was further submitted that by this ground of appeal the plaintiff appears to accept that he was unable to establish numerous factual allegations made in the Further Amended Statement of Claim. Reference was made to Items 1.1 to 1.5.

(vi) Failure to consider the plaintiff's affidavit of 22 September 2014 (third ground of appeal)

1. The defendants submitted that the third ground of appeal concerns an alleged failure by Magistrate Pierce to consider an affidavit that the plaintiff filed and served on 22 September 2014 on the final date of the hearing, 23 September 2014.
2. The defendants deny that the plaintiff ever in fact served an affidavit of 22 September 2014. Reliance is placed upon correspondence annexed to SK 2.
3. The defendants in any event state that it is difficult to see what relevance the affidavit could have in circumstances where the plaintiff failed to appear on 23 September 2014.

(vii) Allocation of hearing date (fourth and fifth grounds of appeal)

1. The defendants noted that the grounds of appeal raise two contentions in relation to the ruling by Magistrate Stapleton. The first was the plaintiff's health. The second was a letter from the defendants' solicitors indicating that the product was manufactured by FTA Food Solutions Pty Ltd.
2. The defendants noted that the plaintiff appeared on 9 December 2014 and presented his case. He also appeared through counsel at a pre-trial review on 2 December 2014. The basis for seeking the vacation of the hearing date was that he was required to undergo an Exercise Stress Test scheduled for 1:30pm on 9 December 2025.
3. As to the second basis, it was submitted that the letter in question, tendered July 2014, indicated that the plaintiff was aware of that information for many months.
4. It was further noted by the defendants that the first defendant accepted at the final hearing that it was a deemed manufacturer for the purposes of the Australian Consumer Law/Trade Practices Act. The question of who manufactured the product (as opposed to marketed and distributed), it was submitted, made no difference to the plaintiff's claim in negligence.

Additional Submissions

1. Finally, the defendants submitted that there was no basis for the grant of leave, to the extent that the plaintiff required leave: Defendants Written Submissions at [55].
2. It was submitted that the plaintiff's Summons does not raise any issues of principle, any questions of public importance, nor any other basis, including injustice, which would justify the grant of leave. It was submitted that no "unreasonable" factual error had been identified.
3. The defendants submitted that the appeal was incompetent and otherwise doomed to fail. They submitted that the appeal should be dismissed with costs.

Plaintiff's Submissions

1. In his Written Submissions dated 20 November 2015, the plaintiff submitted that at [48]-[54]: FASOC [Further Amended Statement of Claim] might be suffering with syntactical issues but it was made very clear by answering further better particulars and Food Act 2003 s126 Onus to prove certain matters on defendant and all misconduct was to prove by defendants which they fail to prove I continue to say this claim is of Tort Negligence. Your Honour did not gave a fair shake had he gone in real issue of the matter I am sure he would have reached the truth of matter. On date plaintiff misguided and diverted me towards form UCPR 105 thereafter and registry guided to file under Crimes (Appeal and review) Act 2001 part 5 from local court to Supreme Court. I understand all above said is error of law. On above said given reasons plaintiff asserts to reopen the case or alternatively on the balance of probabilities to make the order in the favour of plaintiff. I repeat real issue in the matter has not even touched instead defendant manage to get the favour of presiding Magistrate on the following and made a situation that plaintiff remained biased with Magistrates.

Appeal Provisions: Local Court Act 2007

1. Section 39 of the Local Court Act 2007 (NSW) provides: 39 Appeals as of right (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. (2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness. (emphasis added)
2. Section 40 of the Local Court Act provides: "(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court …" (emphasis added)
3. There is no right of appeal from the Local Court to the Supreme Court on a question of fact.
4. The principles of law as to what constitutes a question of law have been extensively reviewed by the authorities. In RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 at [13], Kirby J summarised a number of propositions and principles based on the relevant caselaw as follows: "Arising from these authorities, a number of broad propositions can be stated: First, there is no error of law in simply making a wrong finding of fact, unless there is no evidence to support that finding. Second, it does not amount to an error of law if the finding of fact, or the inference (or the refusal to make a finding of fact or draw an inference) is perverse, in the sense that it is contrary to the overwhelming weight of evidence … Third, it is not an error of law even if the reasoning process by which the court reaches its conclusion of fact is demonstrably unsound or illogical. Fourth, there is a limited exception in relation to decisions of fact in the context of a statutory description. In such a case there may be an error of law if the decision on the facts is one which could not be reasonably entertained, or supported, if the tribunal had properly understood the true construction of the relevant enactment."
5. Garling J in Young v Cooke [2016] NSWSC 408 at [35], quoted the above principles and observed: "This Court has consistently applied these principles, particularly in the context of statutory appeals: see Lee v Knapik [2015] NSWSC 334 at [25]-[39]; Curtis v Charles Darwin University [2014] NSWSC 1032 at [51]-[56]; International Fashion Group Pty Ltd v Jonco Imports Pty Ltd [2014] NSWSC 60 at [33]-[35]; Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers [2013] NSWSC 111 at [58]-[59]." (at [36])
6. In Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312, Bryson JA observed at [39] that limited rights of appeal are sometimes conferred in legislation in terms of "a point of law" or "a question of law". The expression "question" or "point" of law is wider than "error of law": Attorney-General for the State of New South Wales v X [2000] 49 NSWLR 653 per Spigelman CJ at [124].

Deficiencies in the Plaintiff's Case in the Local Court

1. The plaintiff in various ways endeavoured to formulate causes of action based upon wide-ranging allegations pleaded in the Amended Statement of Claim.
2. In the circumstances in which (a) the plaintiff's pleading contained a series of allegations which lacked clarity and (b) the fact that the plaintiff adduced extremely limited evidence in the Local Court proceedings (discussed below), the precise bases for the various causes of action pleaded by him were obscure. It is evident that the Magistrate in the proceedings below was very mindful of the difficulties this presented.
3. Magistrate Pierce in his brief ex tempore judgment in favour of the defendants made it clear that for the plaintiff to have succeeded in a claim for economic loss in negligence it was necessary for him to establish that he was in some way vulnerable to the particular harm he alleged was caused by the defendants.
4. In essence, the plaintiff was alleging that the defendants owed a duty of care to consumers and others, including himself, inter alia, to ensure that retailers do not sell its products past their use by dates. As noted above, the plaintiff claimed that he suffered economic loss as he was unable to fulfil Order 261, due to the alleged negligence of the defendants.
5. Liability for pure economic loss may, of course, be imposed upon a defendant who has knowledge, or the means of knowledge, that a person, the plaintiff, as a member of a determinate class, was unable to protect himself or herself against the loss resulting from the defendants' negligent act or omission. These principles were enunciated by the High Court in Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' [1976] HCA 65; 136 CLR 529. The evidence in the plaintiff's case, however, was not directed to this aspect of the case.
6. Liability may exist but only if it does not unduly fetter a defendant's legitimate commercial interest. Brennan J in Bryan v Maloney (1995) 182 CLR 609 at 632 observed: "If liability were to be imposed for the doing of anything which caused pure economic loss that was foreseeable, the tort of negligence would destroy commercial competition, sterilize many contracts and, in the well‑known dictum of Chief Judge Cardozo, expose defendants to potential liability 'in an indeterminate amount for an indeterminate time to an indeterminate class'."
7. Damages for pure economic loss in other words are not recoverable if all that is shown is that the defendants' negligence was a cause of the loss and the loss was foreseeable.
8. Since the decisions in Caltex Oil (supra) and Perre v Apand Pty Ltd [1999] HCA 63; 198 CLR 180, the question of the vulnerability of a plaintiff has been identified as an important factor in establishing liability. The concept was discussed by the High Court in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 at [23]: "'Vulnerability', in this context, is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, "vulnerability" is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant. So, in Perre, the plaintiffs could do nothing to protect themselves from the economic consequences to them of the defendant's negligence in sowing a crop which caused the quarantining of the plaintiffs' land. In Hill v Van Erp, the intended beneficiary depended entirely upon the solicitor performing the client's retainer properly and the beneficiary could do nothing to ensure that this was done. But in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords the financier could itself have made inquiries about the financial position of the company to which it was to lend money, rather than depend upon the auditor's certification of the accounts of the company." (emphasis added)
9. In the present case there was no direct sale by the defendants to the plaintiff of the cans of ghee butter to the plaintiff. As a general rule, there is no obligation on a person to control the actions of another: Smith v Leurs [1945] HCA 27; 70 CLR 256 at 262 per Dixon J. That general rule may apply between a wholesale supplier and a retailer. There was no evidence adduced in the Local Court proceedings from which it could be said that the defendants owed consumers a duty to ensure that retailers do not sell its products past their use by dates.
10. In addition, the imposition of liability for the negligent infliction of pure economic loss as discussed above must be satisfied by evidence in accordance with the principles enunciated by the High Court in the abovementioned decisions. The evidence in the present case fell well-short of satisfying those principles.
11. Moreover, on the evidence the plaintiff, as a businessman, was able to protect himself from the consequences of the defendants' alleged want of reasonable care and as such was not vulnerable in the requisite sense. The plaintiff had the ability to verify that the cans of ghee were appropriately labelled as to use by dates. By virtue of his experience as a general and business consumer the plaintiff could have been expected to check to ensure that goods had not expired at the time he purchased them.
12. In order to establish a right of appeal the plaintiff's grounds of appeal must identify an error of law. The grounds of appeal range over a number of procedural and other issues. They seek to challenge interlocutory orders made on a number of occasions in relation to issues that do not provide any basis for a challenge to the final order made dismissing the proceedings. The plaintiff's Summons sets out eight orders and five appeal grounds.
13. The defendants submitted, in my opinion correctly, that the terms of the Grounds of Appeal are not concisely stated and that it is difficult to identify the plaintiff's grounds of appeal with any degree of precision.
14. Although there is a lack of precision in the way in which the grounds have been framed, it is still necessary that I seek to determine from them whether or not one or more of the grounds can be said to raise a question of law.

The Appeal Grounds

1. The five "Appeal Grounds" contain a number of deficiencies and defects as follows: 1. They seek to raise issues concerning interlocutory matters and rulings, not errors of law in relation to the final decision of Magistrate Pierce. 2. The "grounds" lack specificity in that they do not identify the matters said to have constituted errors in Magistrate Pierce's decision dismissing the proceedings. 3. They raise issues concerning interlocutory decisions of Magistrate Stapleton regarding procedural rulings as to allocation of hearing dates. 4. They do not disclose any basis or bases upon which the final decision of Magistrate Pierce was said to be affected by any error of law, any mixed question of fact and law or any error in findings made in the Magistrate's final decision.
2. Mr Garnon in his affidavit noted, as observed above, that the plaintiff's Summons seeks to re‑agitate an assertion that the defendant(s) failed to produce documents required by a subpoena. A copy of the subpoena is annexure "E" to his affidavit. The history of proceedings concerning the subpoena as noted earlier is summarised in paragraph 22(a) to (c) of Mr Garnon's affidavit. The further history concerning the subpoena is set out in paragraph 22(d) to (e) and 25 of that affidavit.
3. On the basis of the above evidence, there is no matter associated with the subpoena referred to in the "Appeal Grounds" to the plaintiff's Summons that constitutes a basis for the appeal proceeding in this Court.
4. I have considered whether Ground 1 could, at least impliedly, allege a failure to consider the plaintiff's submissions and provide adequate reasons for the Magistrate's decision.
5. On 25 November 2015, following oral submissions with counsel for the defendants, I directed counsel to put on written submissions by 1 December 2015 regarding the position of an appellate court if it determines that a primary judge has failed to provide adequate reasons in circumstances where no other error of fact or law has been established by the plaintiff. The plaintiff was initially given until 8 December 2015 to reply to submissions received from the defendants but following the plaintiff's request for an extension, I extended the date until 11 December 2015.
6. In response to the direction, the defendants provided written submissions on 1 December 2015. The defendants noted that the Court of Appeal has on a number of occasions referred with approval to the following "synthesis of authorities" in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116] (per Campbell JA, Allsop P and McColl JA agreeing): "A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing);Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58]."
7. In Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Santow JA (with whom Mason P and Sheller JA agreed) relevantly said (at [41] and [43]): "It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings. … A new trial is not automatically required just because a statement of reasons is inadequate: Zhang v Andrew Pine Furniture Pty Ltd [2004] NSWCA 250 at [31] per Giles JA (with whom McColl JA and Bergin J agreed), referring with approval to the comments of Meagher JA in Beale (supra) at 444. Meagher JA had this to say about the results of inadequate reasoning: 'It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.' Meagher JA then went on to say: 'Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial.' If no miscarriage of justice can be said to have occurred, there is no reason to send the matter back for a retrial."
8. The defendants argued that relevant caselaw authorities establish that even if the primary judge has failed to give adequate reasons, this Court has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence adduced in the Local Court is the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial.
9. The vast majority of the plaintiff's submissions dated 9 December 2015 do not address the issue of adequacy of the Magistrate's reasons. The plaintiff again concentrated on the issues concerning the allegations of negligence that were before the Local Court.
10. The plaintiff noted that the defendants relied upon the decision in Keith v Gal [2013] NSWCA 339 at [151] for the proposition that an appellate court has a discretion as to whether a new trial should be ordered if it concludes that the primary judge has failed to give adequate reasons. The plaintiff submitted that the defendants provided an incomplete reference to that judgment and drew attention to paragraphs wherein the Court of Appeal concluded that those proceedings in that case should be remitted for a new trial on damages.
11. The plaintiff made the following relevant submissions: "F. PLAINTIFF'S EVIDENCE WAS NOT ACCEPTED WHICH WAS HANDED WITH SUBMISSION TO MAGISTRATE PIERCE WITH ALL THE ACTS, RULES, AND STANDARDS APPLIED. 18. Plaintiff did not understand why? [sic] much reason was not provided adequately by Learned Magistrate despite of understanding. 19. Plaintiff was admitted in hospital for Hepatitis B and due to very strong medicines it effected listing power which was diagnosed later. G. SUPPOSITION 20. Defendant agree it is well established that judicial officers have a duty to give adequate reasons for their decisions, largely as a result of the need to facilitate appellate."

Conclusions

1. None of the grounds raised by the plaintiff in the Summons raises a question of law. The plaintiff accordingly has no right of appeal under s 39 of the Local Court Act.
2. The grounds do not, in my opinion, raise a question of mixed law and fact and they do not identify any error in the Magistrate's decision.
3. The Magistrate's ex tempore reasons were expressed in brief terms. I do not however consider that they were so deficient as to fail to disclose the basis for the decision given in favour of the defendants. Even if I am wrong in that respect this is not a case in which any inadequacy in reasons would justify an order for a new trial.
4. An appeal must be filed within the time specified in the UCPR (r 50.3(1)(a)). The plaintiff's proceedings were not filed within the time required, namely, 10 April 2015. There does not exist any circumstance that would justify the proceedings to be determined on the merits for reasons discussed above. The failure to commence proceedings in this Court within the prescribed period constitutes a basis for the Summons to be struck out. There are no discretionary grounds for the prescribed period under r 50.3(1)(a) to be extended.
5. On the basis that the grounds for an appeal set out in the Summons do not raise a question of law the Summons must be struck out or dismissed.
6. As earlier discussed, the proceedings before the Local Court were brought upon very limited documentary evidence, being the documents listed in the schedule to the Outline of Submissions (p 12). The plaintiff did not himself give evidence. There is no evidentiary basis for any asserted error by the Local Court in the proceedings below either as to procedural, pre-trial rulings, or that Court's decision in entering judgment in the substantive proceedings in favour of the defendants.

Orders (1) On the defendants' Amended Notice of Motion filed 3 September 2015 order that, pursuant to UCPR 13.4(1), the plaintiff's Summons commencing an appeal, filed 15 April 2015, be dismissed. 1. Unless written application is made to my Associate within 7 days for a different order, I order the plaintiff to pay the defendants' costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2016