New South Wales Supreme Court CITATION : Aircraft Engineers Associates v Robinson [2004] NSWSC 231 HEARING DATE(S) : 17 March 2004 JUDGMENT DATE : 30 March 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. CATCHWORDS : Appeal from Local Court - admissibility - challenge to findings of fact - no error of law. LEGISLATION CITED : N/A CASES CITED : N/A Aircraft Engineers Associates Pty Ltd (Plaintiff) PARTIES : v John Rex Robinson (Defendant) FILE NUMBER(S) : SC 12228 of 2003 COUNSEL : N/A (Plaintiff) Mr. Richard Scruby (Defendant) SOLICITORS : Russell Broadbent, Director (Plaintiff) John A Glynn & Associates (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 518 of 1999 Lismore Local Court FILE NUMBER(S) : LOWER COURT N Reimer LCM JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Tuesday 30 March 2004 12228 of 2003 Aircraft Engineers Associates Pty Ltd v John Rex Robinson JUDGMENT 1 MASTER: These proceedings were commenced by Summons filed on 16 August 2003. The plaintiff brings an appeal from a judgment of the Local Court at Lismore given on 18 July 2003. 2 The relief claimed is as follows:- " The Plaintiff claims: The proceedings in respect of which this order is sought were heard on 8th August 02,17th December 02 ,1st April 03 and 28th May 03 at the Lismore Local Court in the State of New South Wales and judgement was handed down on the 18th July 2003. The Plaintiff claims an order granting relief from the following part of the decision 1.That the Plaintiff breached its duty of care in regard to the overhaul of the engine from aircraft VH-BAT or in the alternative 2.That the quantum of $12,133.10 awarded to the Defendant was excessive in all of the circumstances" 3 The defendant in these proceedings brought two claims in the Local Court. At the relevant time, he was the owner of two aircraft. One was a Cessna 182. The other was a Cessna 210P. The plaintiff in these proceedings carried on business as an aeronautical engineer specialising in maintenance and repair. It did work on both aircraft. 4 The claim made in respect of the Cessna 182 was successful and judgment was recovered in the sum of $12,133.10. The claim made in respect to the Cessna 210P was unsuccessful. 5 The present appeal relates only to the first of the two claims. 6 An appeal lies to this Court by way of error of law. The onus rests with the plaintiff to demonstrate error of law that justifies the disturbing of the decision of the Local Court. 7 The learned Magistrate had before him what he refers to as a vast divergence in evidence. In his judgment, he observed as follows:- "……………The Defendant's evidence is that it was in effect left to the Plaintiff to decide whether he wanted a thorough job involving new pistons and cylinders of (sic) just as straight overhaul and indeed it seems that the Defendants (sic) engineer took the view that it was the Plaintiff's request to have the engine overhauled because he was having propeller problems. I find the evidence of Mr Leese (page 130 of transcript on 17/12/02) extraordinary. He admits that he was going to overhaul the engine ('The man wanted his engine overhauled') but admits he knew the problem was propeller function and low oil pressure but wasn't inclined or able to connect the two as he was not qualified in propellers. Plainly he should have known the connection and when he is said to have given the Plaintiff the option of a new crankshaft or having it sent to America to be reground as part of the overhaul he should have strongly advised one or other of these courses instead of reinstalling the old worn crankshaft. I am satisfied he gave the Plaintiff the choice but I am satisfied that the Plaintiff's choice was not made on solely economic grounds (i.e. the cheap way out) as he had opted for new pistons and cylinders and the cost of a regrind was estimated to be only $2000. I am satisfied on the factual evidence that failure to include a new or reground crankshaft at the time of overhaul was crucial to a proper overhaul and was the reason for the perpetuation of the pre-existing problems that ensued. I am also satisfied on the evidence that it was inappropriate to reinstall a crankshaft exhibiting only 'service tolerances' on a major overhaul and that Mr Leese should have known that and had he given appropriate advice to the Plaintiff he, the Plaintiff would have insisted on a new crankshaft or a factory regrind. I also find that the Defendant can take no comfort from the Plaintiff's alleged general mechanical knowledge as he is, despite having such knowledge, entitled to rely on the Defendant's expert advice and skills and as I have said I find that the Defendant has breached its duty to the Plaintiff. ……………………………….." 8 He then proceeded to find that the damages and losses claimed could be said to be reasonably consequent upon the breach. 9 The aeroplane had propeller and oil pressure problems. It was first brought to the plaintiff in 1993. An overhaul of the engine was done in 1994 and 1995. There was subsequent use of the aeroplane. In 1999, it was serviced by another company. In that year, the proceedings were commenced in the Local Court. 10 Broadly speaking, it was contended that during the overhaul the crankshaft should have been replaced and that the failure to do so necessitated the replacement of other engine components. 11 The proceedings were heard over about 3 days during a period of about 10 months. The main witnesses were the defendant and the chief engineer of the plaintiff (Mr Lees). The defendant relied on a report from an expert (Mr Shipway). The parties also relied on other documentary material. 12 The plaintiff had obtained a statement from an expert (Mr Edwards). The tender of his statement was objected to and rejected. It was rejected for a number of reasons (it was served late after the defendant's case had closed, Mr Shipway was then overseas and Mr Edwards was not available for cross-examination). In my view, it was properly rejected. 13 The Summons was heard on 17 March 2004. Each of the parties handed up lengthy written submissions. These written submissions were supplemented by oral argument. 14 What was actually argued orally by the plaintiff fell within short compass. It was presented as the gist of the appeal. 15 The primary submission concerned the evidence of Mr Shipway. The plaintiff now contends that his report should have been rejected. A number of arguments were addressed. Complaint was made that he lacked the necessary expertise, that he was not available for cross-examination and that he had not complied with the code of conduct for expert witnesses. It was further said that the opinions expressed in his expert witness report were erroneous and should not have been accepted by the learned Magistrate. 16 One of the contentious issues concerning the question of the replacement of the crankshaft related to the matter of what has been described as service limits. 17 There was evidence that the propeller and oil pressure problems persisted for many years following the overhaul and that these problems were not cured until the crankcase was replaced. 18 In his report, Mr Shipway concluded as follows:- "Having examined the material available to me I have concluded that the propeller malfunction and low engine oil pressure experienced with Continental O-470-L Serial No. 48668 installed in Cessna 182 VH-BAT were due to the assembly of the engine with excessive main bearing clearances. The most probably (sic) reason for this occurrence is that Service Limits were used to determine the suitability of the crankshaft for return to service at the overhaul. The manufacture (sic) does not permit Service Limits to be applied to an overhaul." 19 Despite objection, a statement from Mr Lees, was admitted. At least to an extent, he was treated inter alia as an expert. He changed his position during the course of his evidence. 20 The judgment is brief. It might be said that the learned Magistrate could have been more expansive in the expression of reasoning process. However, no complaint is made as to the sufficiency of the reasons. 21 The transcript shows that the Shipway report was tendered shortly after the commencement of the hearing and that it was admitted without objection. The transcript also records that there was a submission that it be accepted just as a report and not necessarily as an expert opinion. The submission was rejected. In making that decision, the learned Magistrate had regard to the Curriculum Vitae which had been tendered with the report. No notice had been given for Mr Shipway to be present for cross-examination. During the lengthy period of the trial that followed, no steps were taken to have him present for cross-examination. The tendered documents demonstrate that he had complied with the code of conduct. In my view, the report was properly admitted. 22 Subject to what was said by Mr Lees, the opinions of Mr Shipway comprise the only expert material placed before the court. His opinions were not challenged. Clearly, the learned Magistrate was not impressed with the evidence given by Mr Lees. It was open to the learned Magistrate to reject evidence given by him. There was evidence before the court that enabled the learned Magistrate to act on the opinions expressed in the Shipway report. In my view, there was evidence to support his decision whether or not he relied on that report. 23 The remaining oral challenge to the decision related to what was said to have happened during the years intervening between the overhaul and the replacement of the crankshaft. This submission also suffered from the difficulty of lacking in supporting evidence. By way of contrast, there was evidence that supported the course taken by the learned Magistrate. I do not accept the submissions of the plaintiff on this question. 24 For completeness I should add that a number of other matters were agitated in the written submissions. I have carefully considered those matters. It is unnecessary to deal with them individually. In my view, they do not assist the plaintiff in this appeal. 25 It may be that if the trial had been conducted differently, a different result may have ensued. It could be that competing views may have been thrown up by certain of the evidence. Be that as it may, I am of the view that there was evidence before the learned Magistrate to support the decision reached by him. I am not satisfied that there was any error of law. It seems to me, that the plaintiff is simply a party who is dissatisfied with the findings of fact that were made. 26 A belated application was made to seek leave to appeal. It was opposed. It had been brought out of time. No extension of time was sought and the delay was left unexplained. There is a lack of articulation of the basis upon which leave is sought. The case throws up no question of principle and the claim is relatively modest. What has been said in the written submissions does not assist the success of the application. In my view, the application should be refused. 27 The plaintiff has failed to discharge the onus of demonstrating an entitlement to relief. The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. ********** Last Modified: 04/05/2004 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.