Skinner v Ford Motor Company of Australia Ltd

REASONS FOR JUDGMENT 1 On 15 December 2005 the applicant commenced proceedings against the respondent in the Federal Magistrates Court alleging various contraventions of the Trade Practices Act 1974 (Cth) (the Act) and claiming damages. His statement of claim alleges the following facts. In March 2000 he purchased a commercial refrigerated vehicle from BS Stillwell Motor Company Pty Ltd (Stillwell) trading as Knox Ford. The applicant financed the purchase through a hire purchase agreement with Ford Credit Australia Ltd. Prior to the purchase he informed Knox Ford that he was shortly to start with TDG Logistics Ltd as a subcontractor to deliver cheeses and small goods to supermarket chains and shops in regional Victoria and Southern New South Wales. He claims that certain representations were made about the attributes of the vehicle, the availability of facilities for its repair and the availability of spare parts. It is said that these representations were false, and that this constituted misleading and deceptive conduct within the meaning of s 52 and s 53(ea) of the Act. He contends that in making the representations Knox Ford was acting as agent of the respondent. 2 The respondent's application for summary dismissal of the proceeding under s 17A of the Federal Magistrates Act 1999 (Cth) was successful. After referring to the six year limitation period in s 82(2) of the Act, the Federal Magistrate said at [20]‑[22]: The applicant commenced the County Court proceeding against B.S. Stillwell on 21 May 2001. The circumstances he relied on are the same circumstances as his application in this court. The alleged representations constituting misleading and deceptive conduct upon which he relies are the same. The only difference is that instead of bringing the claim against B.S. Stillwell directly, he alleges that B. S. Stillwell made the representations as agent for the respondent. The statement of claim in the application in this court makes it clear that the cause of action arose in the middle of the year 2000, probably by the end of July 2000. The applicant alleges that on or around 24 July 2000 he contacted TDG and advised he was not proceeding to undertake any further deliveries. His claim is for loss of profits as a result of not being able to continue with the delivery contract. His damages are the consequence of the loss of the delivery contract. His cause of action accrued at this time. The application in this court was commenced by the filing of the application on 15 December 2008. There can be no doubt his cause of action had accrued by 15 December 2002, 6 years earlier. 3 The Magistrate went on to note the High Court's caution in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533 that it is undesirable for limitation questions of the kind under consideration in that case to be decided in interlocutory proceedings except in the clearest of cases. His Honour was of the view that this was the clearest of cases. The applicant had no reasonable prospect of succeeding. His claim was clearly out of time. 4 The applicant has appealed against the Magistrate's dismissal of his application. By motion notice of which was filed on 15 October 2009 the respondent seeks an order that the appeal be dismissed "for failing to identify any legal, factual or discretionary error in the judgment under appeal". It contends first that the Magistrate's decision was interlocutory and no leave to appeal has been sought. It then contends, as per the motion, that the applicant has identified no error in the decision. 5 Section 17A of the Federal Magistrates Act is in the same terms as s 31A of the Federal Court of Australia Act 1976 (Cth). In Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 259 ALR 319 the Full Court held that the decision of a single judge to grant summary judgment to the respondent on the basis that the applicant had no reasonable prospect of successfully prosecuting a proceeding is an interlocutory judgment because the legal effect of such a judgment is not final. See also Luck v University of Southern Queensland (2009) 176 FCR 268 at [101] per Rares J, with whom Graham J agreed. The observations of Rares J in Luck were approved by the Full Court in Kowalski 259 ALR 319 at [43]. Accordingly I must treat the Federal Magistrate's order as an interlocutory order requiring the grant of leave. 6 The applicant appeared in person. Although he made no express application for leave, I will treat him as seeking it. Leave to appeal is only granted if the applicant establishes that the decision at first instance is attended with sufficient doubt to warrant its reconsideration by an appellate court and substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398‑400. 7 The applicant accepted that but for the provisions of Part VIA of the Act, his proceeding was out of time. He submits that that Part permits his otherwise out of time claim. Part VIA deals with Proportionate Liability for Misleading and Deceptive Conduct and was introduced into the Act in 2004. Its purpose was explained by Finkelstein J in BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 2) [2008] FCA 1656 at [4]. 8 Part VIA consists of ss 87CB to 87CI. Section 87CB(1) limits the operation of the Part to a claim for damages under s 82 for economic loss or damage to property caused by conduct in contravention of s 52. This type of claim is called an "apportionable claim". Section 87CD establishes proportionate liability for an apportionable claim. Subsection (1) provides: In any proceedings involving an apportionable claim: (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and (b) the court may give judgment against the defendant for not more than that amount. The expression "concurrent wrongdoer" is defined in 87CB(3) as a person who is one of two or more persons whose acts or omissions caused, independently of each other or jointly, the damage or loss that is the subject of the apportionable claim. Section 87CF provides that a defendant against whom judgment is given as a concurrent wrongdoer cannot be required to contribute to the damages recovered from another concurrent wrongdoer or indemnify any such wrongdoer. Section 87CG(1) provides: In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss. 9 The applicant claims to bring himself within s 87CG(1) by reason of a settlement of his claim against Stillwell in October 2003. This is the proceeding referred to in the first paragraph of the passage quoted at [2]. The settlement occurred as the result of a mediation. The County Court proceeding was struck out by consent with no order as to costs. Accordingly s 87CG(1) does not apply for want of "judgment recovered". However, quite apart from this, Part VIA does not seem to me to provide any assistance to the applicant in displacing the limitation period in s 82(2). 10 Part VIA applies to a claim only if it is a claim for damages made under s 82 for economic loss or damage to property. Where, as in the present case, the respondent pleads the limitation defence, such a claim will not succeed if made outside the period specified in s 82(2). Stillwell and the respondent may well be "concurrent wrongdoers" as defined. But it remains the case that the respondent cannot be liable for damages unless the claim is made within the period specified in s 82(2). Where a respondent relies on the limitation in s 82(2), there will be no "liability of a defendant" and no "judgment against the defendant" for the purposes of s 87CD(1)(a) and (b). Nor does s 87CG(1) assist. While it may not prevent an applicant who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of damage or loss from bringing another action against any other concurrent wrongdoer, it says nothing about the outcome of the later claim. 11 Thus the structure of Part VIA provides no assistance to the applicant's contention that it somehow enables him to bring his claim against the respondent outside the prescribed period. Further, I can discern no reason why Parliament would intend not to subject someone in the applicant's position to the same limitation period as anyone else who makes a claim for damages under s 82. 12 The applicant claimed to derive assistance from Baxter v Obacelo (2001) 205 CLR 635. That case concerned s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which provided in part that: Where damage is suffered by any person as a result of a tort … (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered … against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given … The Court held that the provision applied only to cases where there was more than one proceeding, and thus did not preclude recovery against more than one defendant sued as joint tortfeasors in the one proceeding. Baxter 205 CLR 635 did not involve a limitation provision. I am unable to see how it assists the applicant. 13 For the above reasons I am of the view that the Magistrate's decision is not attended with sufficient doubt to warrant reconsideration by this Court. 14 If, contrary to my opinion, the Magistrate's order was a final order, I would dismiss the appeal for the same reasons I would refuse leave to appeal assuming the order to be interlocutory. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.