Williamson v Elders Rural Services Australia Ltd

Judgment

1. THE COURT: Mr Hugh Francis Arthur Williamson seeks leave to appeal from the reserved interlocutory decision of the primary judge (N Adams J) given more than 3 years ago, on 22 April 2016, refusing him leave to file a proposed amended statement of claim: Hugh Francis Arthur Williamson v Elders Ltd [2016] NSWSC 450. Mr Williamson represented himself before the primary judge, just as he has appeared for himself in this Court.
2. Ultimately, the litigation between the parties went to trial on a third further amended statement of claim filed on 2 June 2017. The trial was heard over 3 days, with Mr Williamson representing himself, in the Common Law Division before Johnson J. Judgment was delivered on 19 December 2018: Williamson v Elders Rural Services Australia Ltd (No 2) [2018] NSWSC 1986. All of Mr Williamson's claims were dismissed.
3. In order to deal with the substance of the application for leave to appeal, as well as to explain the competing submissions as to the need for an extension of time, it will be necessary to summarise the factual background, the history of the litigation at first instance, and the findings made in 2018 following the trial, as well as the reasons of the primary judge.

Factual and procedural background

1. Mr Williamson purchased a substantial farm known as "Reevesdale" in Bungonia in the Southern Highlands in mid 2007. An adjacent property was known as Ardmore Park. The Minister had refused development approval to operate a quarry on Ardmore Park, and an appeal by the land owner was dismissed by the Land and Environment Court in June 2007: CEAL Ltd v Minister for Planning [2007] NSWLEC 302. However, in October 2007, a revised application to use part of the land as a quarry was lodged with the Minister, and in 2009 approval was obtained.
2. Speaking very broadly, Mr Williamson contends that he did not know of the possibility of a neighbouring property being used as a quarry, that the real estate agent, Mr Les Hannan, did know or ought to have known, and should have told him, and that if he had been told, he would not have bought Reevesdale.
3. No later than early 2009, Mr Williamson became aware that there had been a further application for a quarry, which was granted in September 2009. Mr Williamson contends that it was at that point that he suffered loss.
4. Mr Williamson had formerly practised as a solicitor. In October 2010 he was diagnosed with a brain abscess which required surgery and lengthy rehabilitation.
5. In 2012, Mr Williamson sued his former solicitors (among others) for breach of duty and for misleading and deceptive conduct. He appeared for himself in a three day trial. The proceedings were dismissed in August 2015: Williamson v Carneys Lawyers [2015] NSWSC 1080.
6. Two days before his proceedings against his solicitors were dismissed, Mr Williamson commenced proceedings against the respondent ("Elders"). The primary judge recorded (at [6]-[8]) that the original statement of claim alleged fraud against Elders based upon two matters. One was the statement that the real estate agent, Mr Hannan, who was employed by Elders, told Mr Williamson that the reason Reevesdale was being sold was that one of the principals of the vendor thought there were ghosts on the property. The second was that an affidavit, affirmed by Mr Hannan on 21 April 2015 in the earlier proceedings brought by him against his former solicitors, was false.
7. It is convenient to follow the course taken by the primary judge, and to divide the draft pleading on which her Honour rules into two halves. First, paragraphs 13-22 seek to make out a case that by reason of each of the "Express Representation", the "Implied Representation" and the "Omissions", Elders had engaged in conduct that was misleading or deceptive or likely to mislead or deceive, contrary to s 52 of the Trade Practices Act 1974 (Cth), by reason of which Mr Williamson had suffered loss. The Express Representation concerned the stated reason for the sale of the property (a belief that it was haunted), the Implied Representation was directed to the expertise, honesty and knowledge of Elders and Mr Hannan as local real estate agents, and the Omissions were that there was a proposal for development consent for the use of Ardmore as a quarry, and the possibility that it could be so used in the future which would substantially reduce the amenity and value of Reevesdale.
8. Each of the Express Representation, the Implied Representation and the Omissions were said to have occurred in July 2007. At that time, s 82(2) of the Trade Practices Act provided that actions for damage caused by contraventions of s 52 might be commenced within six years after the cause of action accrued. Mr Williamson's proceedings had been commenced some eight years after he had acquired Reevesdale; hence the significance of his submissions that he only suffered loss in 2009 after the quarry had been approved, and that he had been under a disability for some of that period.
9. The second element of the proposed pleading, paragraphs 25-28, was an allegation that Mr Hannan knew that the Express Representations were false, and relied upon by Mr Williamson when he purchased Reevesdale. It was said that Elders was vicariously liable for Mr Hannan's actions. This part of the proposed pleading in addition to damages sought exemplary damages of $20 million.
10. Both elements of the pleading suffered from a number of drafting flaws, which need not for present purposes be elaborated, having regard to the approach taken by the primary judge.

The reasons of the primary judge

1. The primary judge summarised the background, the proposed pleading and the parties' submissions and dealt with Mr Williamson's application in two halves. First, at [42]-[48], her Honour found that Mr Williamson's causes of action accrued on the day on which he acquired an interest in Reevesdale, in July 2007, and proceeded on the basis that although the six year limitation period for misrepresentation might be extended pursuant to s 52 of the Limitations Act 1969 (NSW), when the plaintiff was under a disability, that provision had no application to the (then) six year period imposed by s 82 of the Trade Practices Act. Her Honour was conscious of the proposition that limitation questions should not be decided in interlocutory proceedings save in the clearest of cases, citing Wardley v State of Western Australia (1992) 175 CLR 514 at 525; [1992] HCA 55. Her Honour also recorded at [41] an exchange on this point: "When it was pointed out to the plaintiff that s 52 of the Limitation Act 1969 has no application to the TPA aspect of his claim, he conceded that his point on s 52 of the TPA was '…probably a waste of time.'"
2. It was on that basis that her Honour stated at [48]: "I would not propose to grant the plaintiff leave to file his amended statement of claim insofar as it pleads a cause of action under the TPA."
3. Secondly, her Honour expressed the view that the pleading of fraud was embarrassing, failing to comply with the clarity required for such an allegation: at [49]-[54]. Accordingly, her Honour refused leave to rely upon the proposed amended statement of claim, but granted leave to file an amended statement of claim within 6 weeks. Submissions in this Court proceeded on the basis that the grant of leave did not extend to leave to replead a claim based on the Trade Practices Act.

The reasons of Johnson J delivered 19 December 2018

1. Further pleadings were filed, and the proceedings went to trial culminating in a judgment dismissing Mr Williamson's claims delivered on 19 December 2018. That judgment included by way of summary at [186] the following: "The Plaintiff has failed to establish his cause of action against the Defendant. He has fallen far short in this respect on virtually every contested issue in the proceedings."
2. Mr Williamson failed at trial not merely because he failed to make out a case of fraud and because his claim was found to be barred by statute. He failed also for a series of factual reasons summarised by the primary judge at [167]-[171]: "There are further and more fundamental difficulties for the Plaintiff as well. I accept the Defendant's submission that there is no evidence to establish that either the pleaded representation, or the statement alleged by the Plaintiff in paragraph 10 of his affidavit (see [53] above), was false. There is no evidence of the reasons why the vendor of "Reevesdale" was in fact selling the property for the price in question as at April to July 2007. There is no basis in the evidence for the Court to draw an inference that "Reevesdale" was being sold in mid-2007 because of the quarry development proposal, or that this aspect affected the determination of the sale price. This constitutes a further fundamental problem in the Plaintiff's claim. Another difficulty confronted by the Plaintiff is that there is no evidence that Mr Hannan knew or believed that anything he allegedly said to the Plaintiff (on the Plaintiff's version) was false. For the Plaintiff to prove that Mr Hannan knew what he allegedly said was false, it would be necessary for there to be proof that Mr Hannan did not believe that Mrs Cooper believed that she had seen ghosts. It would need to be proved that Mr Hannan knew that the vendor was selling for some other reason, as to which there is no evidence. It is the case that no complaint or allegation was made by the Plaintiff concerning Mr Hannan's statements before Mr Hannan died on 3 July 2015. The failure of the Plaintiff to complain about Mr Hannan's alleged conduct, at some time prior to his death in July 2015, meant that Mr Hannan's response to the Plaintiff's allegations is not available. The Court must do its best with the evidence as it stands. There is nothing to suggest that Mr Hannan believed the vendor was selling "Reevesdale" because of the quarry development proposal, and there is no available and proper foundation for an inference to that effect to be drawn. This constitutes a further difficulty for the Plaintiff succeeding in this claim."
3. True it is that the paragraphs reproduced above are expressed to constitute "fundamental difficulties" and "fundamental problems" confronting Mr Williamson. It might, perhaps, be arguable that they fall short of making dispositive findings. It is unnecessary to resolve that issue because [176] falls in a different category. That paragraph concerns Mr Williamson's reliance on what he had been told, and was in the following terms: "I am satisfied that the Plaintiff was unconcerned in 2007 about the prospect of any nearby development, and that he proposed to purchase "Reevesdale" for reasons that were not based upon any alleged false representation made by Mr Hannan. Once again, it is notable that the Plaintiff did not complain at all about the quarry development proposal issue until 2009, long after the events in question."

Mr Williamson's proceedings in this Court

1. Mr Williamson told the Court that he had sought to lodge a notice of intention to appeal on 10 January 2019, but was unable to serve a filed document until February, because of his application for a waiver of fees. Thus, as Mr Horobin, who appeared for the respondent in this Court, but not before the primary judge, submitted, that on any view an extension of time was required.
2. It would have been open to Mr Williamson to appeal as of right from the dismissal of his proceedings in December 2018, and within that appeal to challenge the interlocutory decision of 2016 denying him leave to rely upon the Trade Practices Act. However, by his summons seeking leave to appeal filed on 12 March 2019, Mr Williamson made it clear that his appeal was confined to the interlocutory decision of 22 April 2016. The document went so far as to renounce a previously communicated intention to appeal from Johnson J's decision. Although the notice of intention to appeal was not included in the appeal folders, paragraph 5 of the summons on which Mr Williamson moved stated: "In the previously indicated intention to appeal the finding of Johnson J which concerned the evidence of Mrs Moira McGinity is abandoned …"
3. Mr Williamson in oral submissions in this Court confirmed that he had chosen not to challenge any aspect of Johnson J's decision.
4. The apparent reason for this decision is that Mr Williamson contends that if he obtains leave to appeal from N Adams J's 2016 decision and succeeds in overturning that decision, he could run a case based on s 52 of the Trade Practices Act untrammelled by the findings of Johnson J on his fraud claim.
5. Mr Williamson maintained that the "material date" for the purposes of the time for an appeal or an application for leave to appeal remained 19 December 2018. He submitted, relying upon Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 that the refusal of leave to amend had become "part of the order of Johnson J".
6. We do not accept that submission. Appeals lie from orders not reasons. This application for leave to appeal has been brought, deliberately and explicitly, from the orders made in 2016. The draft notice of appeal does not challenge the orders made on 19 December 2018, and Mr Williamson has confirmed, orally and in writing, that he does not seek to do so.
7. It follows that (a) the material date was more than 3 years ago, and (b) the appeal is from an interlocutory order and requires leave: Uniform Civil Procedure Rules 2005 (NSW), rr 51.2 (definition of "material date"), 51.6(b), 51.9(1)(a) and 51.10(1). Mr Williamson accordingly needs a substantial extension of time. Even so, it remains necessary to examine the strengths of the case which is sought to be advanced in this Court for the purposes of determining whether time should be extended. It is at this point that Mr Williamson faces substantial difficulty.
8. It is true that the primary judge granted leave to replead, which occurred. We would accept that the effect of the orders made by the primary judge was to preclude Mr Williamson from advancing his claim based on the Trade Practices Act. However, only if there were some prospect of that claim succeeding would there be a sound basis for granting leave to appeal.
9. The findings made in December 2018 following the final hearing give rise to an issue estoppel binding Mr Williamson. The applicable principle was stated authoritatively in Blair v Curran (1939) 62 CLR 464 at 531-532; [1939] HCA 23 by Dixon J: "A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion. ... Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established."
10. Mr Williamson had sued Elders for fraudulent misrepresentation causing him to purchase Reevesdale. The same issue - whether any conduct on the part of Elders was causally connected with his decision to purchase Reevesdale - arises as an essential element of the causes of action based on the Trade Practices Act which were the subject of the decision of Adams J in 2016. The finding as to his lack of reliance upon anything said or omitted to be said by the respondent gives right to an issue estoppel that would likewise be fatal to the claim based on the Trade Practices Act.
11. Elders' written submissions in this Court drew attention to the findings reproduced above, under the heading "The proposed appeal is futile", and concluded: "In the absence of any challenge to those findings, any proceedings by the Applicant relying on the Trade Practices Act would be doomed to fail, and, in the Respondent's submission, would constitute an abuse of process."
12. In Mr Williamson's written response to that submission, all that was said was: "No, it is not as is demonstrated by the above and the fact that there would have been another person, other than the Appellant, to see that all the evidence that was necessary was given."
13. The reference to "the above" in that response was a reference to the "more lenient burden of proof" which was said to have been applicable to proceedings for contraventions of the Trade Practices Act as opposed to proceedings for fraud. The reference to "another person" was elaborated when the matter was raised by the Court. Mr Williamson said that had leave been granted by the primary judge in 2016, an experienced legal practitioner would have run the trial on his behalf. There was no evidence that that was so, and it may be noted that Mr Williamson, who had formerly practised as a solicitor, ran his claim against Carneys in 2015, and against Elders in 2016 and subsequently, as an unrepresented litigant.
14. On either the cases litigated at trial, or the claims under the Trade Practices Act which Mr Williamson wishes to litigate, an essential element is that conduct attributable to the respondent had a causal connection with Mr Williamson's decision to buy the property. The finding at [176] resolves that issue.
15. Mr Williamson stated that in order to succeed on his allegations of fraud at trial, Johnson J was required to apply s 140 of the Evidence Act 1995 (NSW), which would have applied differently to a claim founded on misleading and deceptive conduct. As much may be acknowledged, but it does not assist Mr Williamson. It is difficult to see how s 140 has any application to the critical findings going to reliance. The issue estoppel applies to "the ultimate facts which [formed] the ingredients of the cause of action", and the absence of reliance on the part of Mr Williamson upon anything said by Mr Hannan and his lack of concern about the prospect of any nearby development are relevantly identical in both causes of action.
16. It follows that it is not necessary to express a view as to the availability of either s 55 of the Limitations Act or the doctrine of concealed fraud to a claim under the Trade Practices Act, something which was touched upon in oral submissions, but not developed by either party. Nor is it necessary to consider the appropriateness of determining a limitation point such as that presented in this litigation at an interlocutory hearing, divorced from the balance of the evidence. Nor need we consider when any cause of action under the Trade Practices Act arose. Even taking the view most favourable to Mr Williamson on those matters, what has been said concerning issue estoppel is sufficient to make this application one that warrants a refusal of leave.
17. For those reasons, the Court's order is that the summons seeking leave to appeal filed 12 March 2019 is dismissed. Mr Williamson accepted that in those circumstances costs should follow the event.
18. Both parties had consented to the application being heard and determined on the papers. However, the draft pleading in the materials provided by Mr Williamson differed from that which Elders said had been before the primary judge. Mr Williamson confirmed at the hearing that, in this respect, Elders was correct. There were other matters which Mr Williamson clarified in his oral submissions, which were not entirely clear on the papers. There was thus good reason to conduct an oral hearing.

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