CROSBY AND ANOR (t/as CROSBY TRANSPORT) v SYDNEY KENPREST PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and CRIPPS JJA 17 August 1992, 17 August 1992 [1992] NSWCA 51 APPEAL from District Court — Claim for goods and services — Defence that goods not fit for the purpose required — Judgment given for plaintiff — Judgment turns on acceptance of plaintiff's witness — Acceptance not wrong as based on errors of fact — Finding not wrong by reason of errors of fact by judge — No issue of principle. ORDER Appeal dismissed with costs. Mahoney JA In these proceedings the plaintiff claimed to have supplied truck tyre and retread services to the defendants between, as it appears in the Statement of Claim, 6 June 1983 and 22 October 1983. It claimed $5,662. A concession was made in respect of $1,800 and the amount in dispute was the sum of $3,862. The defence set out by the defendants was that the tyres were supplied for a purpose which was brought to the notice of the plaintiff and the tyres were not fit for the purpose (I paraphrase the terms of the Statement of Defence in this regard). On 20 October 1989 after a trial in the District Court his Honour Judge Herron found for the plaintiff and gave judgment for $5,662 and $3,000 interest. The defendants have appealed to this Court against his Honour's judgment. The learned judge held that the tyres were fit for the purpose for which they were intended to be used by the defendants and that in so far as there was a problem in relation to them that problem arose from the condition of the, as I shall describe it perhaps inaccurately, fabric of the tyres and the use which the defendants put them to. The learned judge said in his judgment in this regard: "\.. Well, at first to be quite frank I was not impressed by this particular submission put on behalf of the plaintiff but on reflection it seems to me that I should accept Mr Weir that indeed he had an association with the retreading of the tyres at all material times and that with one exception the tyres went from the plaintiff's premises in a proper condition and suitable for the use for which they were to be put and, as I say, I accept Mr Weir as a witness of truth and as being completely honest..." Upon that basis his Honour concluded: "..1 do not think that the defendants have shown that the tyres were the subject of faulty workmanship which really is the case put by them in the end and in those circumstances there should be a judgment for the plaintiff for the amount claimed..." As Mr Biggins for the defendants has perceived and has submitted to the court, the judge's judgment relied significantly upon his view that the evidence of Mr Weir, a witness on behalf of the plaintiff and one of the main persons concerned in the business, should be accepted and the evidence of Mr Crosby, a witness for 2 UNREPORTED JUDGMENTS the defendants and one of the persons there concerned, should not be accepted. He submitted that his Honour had erred in this regard and for that reason the judgment should be set aside. His submission in relation to the matter was twofold: firstly, his Honour's acceptance of Mr Weir was central to his view that there had been no breach of the warranty which he accepted had been given; and, secondly, that his Honour in arriving at his judgment in respect of the performance of the warranty had erred in his statement of the evidence in the manner to which I shall refer. I shall deal first with the submission relating to his Honour's acceptance of Mr Weir. The learned judge had the benefit of seeing Mr Weir give evidence and in so far as it appears that his acceptance of Mr Weir was influenced by his acceptance of Mr Weir's demeanour the defendants, of course, face difficulty in seeking to set aside what his Honour found in that regard. But Mr Biggins has quite properly pointed to the fact that the learned judge indicated the basis, or at least part of the basis, on which he had accepted Mr Weir's evidence and Mr Biggins submitted that basis was wrong. He referred to two things. He referred, firstly, to his Honour's initial assessment of the evidence of Mr Weir. His Honour at an early part of his judgment, having contrasted the evidence given by Mr Crosby and Mr Weir generally, said this: "... Ido not accept Mr Crosby in this regard for the simple reason that Mr Roberts was not employed by the plaintiff company in April of 1983 and I accept Mr Weir in this regard. Indeed, I accept Mr Weir as a completely honest witness and I accept him also that Mr Roberts did not, as Mr Crosby would have it, render the services that Mr Crosby said he did..." What his Honour meant by this was this: Mr Crosby had given evidence that his connection with the plaintiff company had commenced in or about April 1983 as the result of representations made to him by a Mr Bill Roberts who he said was acting on behalf of the plaintiff company. Mr Weir's evidence was that Mr Roberts was not employed by the plaintiff company until July 1983. The suggestion, therefore, was that Mr Crosby's evidence was wrong. There was significant evidence and cross-examination upon this point at the trial. His Honour accepted that Mr Roberts was not employed by the plaintiff company in April 1983. Mr Biggins, for the defendants, submitted that his Honour was in error in this regard and that the evidence showed that in fact Mr Roberts was employed by the plaintiff company prior to July 1983. There were assertions by Mr Crosby to that effect. He was adamant in his evidence that conversations with Mr Roberts had taken place in April 1983. There is support also in the face of the transcript for the view put forward by Mr Biggins for the defendants that in fact Mr Roberts was employed by the plaintiff company at the relevant time. In Mr Weir's evidence in chief the following reference is made to Mr Roberts: "Q. Do you know an individual by the name of Roberts? A. Bill Roberts, yes. Q. Was he an employee of Sydney Kenprest? A. Yes, he was. Q. When did he join your company? A. The date is in the wages book. Q. (Shown wages book). A. He was employed by me from 1977 to 1983. Q. That is your wage book, is it? A. Yes. (Wage book admitted without objection and marked Ex C)...." It has been submitted on behalf of the plaintiff that the transcript, in so far as it purports to show Mr Weir as accepting that Mr Roberts was employed by him from 1977 to 1983, was incorrect. Evidence was tendered by affidavit by the solicitor for the plaintiff suggesting that the answer in fact given was not that the UWARDSBY AND ANOR (t/as CROSBY TRANSPORT) v SYDNEY KENPREST PTY LTB (Mahoney JA) employee, Mr Roberts, was employed "from 1977 to 1983" but that he was employed from a different date. The solicitor's notes have been produced. A copy of them set forth in the affidavit suggests that the evidence given was: "Bill Roberts employed 7.7.83 to 15.9.83 wages book tendered". Mr Biggins objected to the evidence being given on affidavit in this way and the court, after hearing argument, ruled in favour of the admissibility of that evidence. The proper conclusion is, in my opinion, that the transcript in the form to which I have referred is mistaken and that it was not then said by Mr Weir that Mr Roberts was employed from "1977 to 1983". That portion of the evidence, therefore, is not inconsistent with the evidence given by Mr Weir and pressed by him to the effect that Mr Roberts was not employed until early in July 1983. Insofar as it may be relevant, I think the other answers given at the time and to which I have referred indicate that Mr Weir in his evidence was acting upon the assumption that Mr Roberts had not been employed prior to the relevant date as shown in the wages book. I do not think that there is anything of substance in the evidence which would require a conclusion different from that to which the learned judge came, namely, that it was not until July 1983 that Mr Roberts was employed. It is not necessary, I think, to go into the detail of the matters referred to by Mr Biggins in this regard. I think it is sufficient to say that if Mr Crosby's evidence be put aside there is no other evidence which would force the court to come to that conclusion or which, as on a rehearing, would warrant this Court setting aside the view which the learned trial judge arrived at. I should refer to one other matter that was urged in support of the conclusion that the finding in favour of Mr Weir was unsatisfactory. It was submitted by Mr Biggins that notwithstanding what Mr Crosby had said in evidence in relation to Mr Roberts and the part that that might be expected to play in the decision of the case, it was not put to Mr Crosby that what he had said was wrong. It was not in terms put to him that Mr Roberts had not been in the employ of the company in April 1983. It is, of course, true that the cross-examiner did not put to Mr Crosby in terms that Mr Roberts was not employed in April 1983 and that, therefore, the conversations to which reference was made could not then have occurred. But during the course of cross-examination and, indeed, very early in the cross-examination reference was made to the date April 1983 and Mr Crosby was given the opportunity of reiterating that it was in April 1983 that the dealings with the company - its first dealings - were had through the agency of Mr Roberts. It was then put to Mr Crosby that, in fact, Mr Roberts was not working for the plaintiff until July 1983. In the form often followed in cross-examination he was asked: "Do you have anything to say?". The answer was: "I do not know what to say about that. I mean it's going back so long ago if I am a month out or so." Reference was made subsequently to matters touching that matter but not as directly. In my opinion the rule against Browne v Dunn (1893) 6 R 67, much invoked and perhaps much misunderstood as it is, does not require that in all cases the allegation to be contradicted be put in precise terms. The rule is, as it has been said from time to time, a rule of fairness in the conduct of a proceeding. At least the present application of it is. I see nothing unfair in the manner the proceeding was conducted and the way the contrary to Mr Crosby's allegations was put in cross-examination. I do not think Browne v Dunn (supra) or any argument based on it is of assistance to Mr Biggins in his attack on his Honour's acceptance of Mr Weir in this regard. 4 UNREPORTED JUDGMENTS Therefore, I do not think that his Honour is shown to be wrong in his acceptance of Mr Weir's evidence and the preference given to that evidence over the evidence of Mr Crosby. I come to the second aspect of the matter. Reference was made to the passage which I have cited from the judge's judgment in which he dealt with the rejection of the complaint that the tyres were defective and not fit for the purposes for which they were required. Evidence had been given for the plaintiff by an expert, Mr Wingrove, to the effect (and I summarise his evidence only generally) that the difficulties which the defendants had experienced with the tyres had resulted from the form of the carcass, as it was described, of the tyre and from the manner in which the defendants had dealt with the tyres. The question was whether that evidence or contrary evidence given on behalf of the defendants should be accepted. It was to this that the learned judge referred when he said that at first he was "not impressed by this particular submission put on behalf of the plaintiff'. However, he then went on to say that on reflection he thought he should accept Mr Weir and on that basis he accepted Mr Wingrove's evidence as to the tyres. It was submitted by Mr Biggins for the defendant that his Honour, in his assessment of this part of the evidence, wrongly stated the effect of evidence given before the court. His Honour, in the passage to which I have referred, said: "... I should accept Mr Weir that indeed he had an association with the retreading of the tyres at all material times and that with one exception the tyres went from the plaintiffs premises in a proper condition and suitable for the use for which they were to be put..." It was submitted that the evidence did not show that that was what had been said by Mr Weir. I do not think that that submission should be accepted. The evidence given by Mr Weir indicated a detailed association by him with the retreading of tyres in general and I think his Honour inferred that the witness was referring to retreading of tyres which were the subject of the present claim. It was then submitted with some more force that there was not in the evidence of Mr Weir or elsewhere evidence in terms that "the tyres went from the plaintiff's premises in a proper condition and suitable for the use to which they were to be put". It may be accepted, I think, that Mr Weir did not in terms say that when the tyres left the plaintiff's premises they were in such a condition. But the general thrust of his evidence and I think the evidence of Mr Wingrove was to that effect. I do not think that his Honour in what he said was indicating that the statements that he referred to appeared in terms in the evidence of Mr Weir. He was, I think, stating generally the thrust of the evidence. I think that he was indicating that this was the effect of Mr Weir's evidence or the effect of his evidence generally which he thought he should accept and he saw his acceptance of Mr Weir as supporting the acceptance of that view of the substantial part of the case. I do not see any error in what the learned judge said in that regard. In all the circumstances I do not think the appellant's case that the learned judge erred in any respect here relevant has been made out. I would propose that the appeal be dismissed and dismissed with costs. Those costs should include the costs of the affidavit to which I have referred. Meagher JA I agree. Cripps JA I agree. Mahoney JA: The order is as I have indicated. (Appeal dismissed with costs.) UWARDSBY AND ANOR (t/as CROSBY TRANSPORT) v SYDNEY KENPREST PTY LTB (Cripps JA) Counsel for the appellant: P BIGGINS Solicitors for the appellant: GALLUZZO GOLOTTA ANDRIANO Counsel for the respondent: PH BLACKBURN-HART Solicitors for the respondent: KEMP STRANG and CHIPPINDALL