Sam Hadzic v Bristol Paint Limited Trading As Bristol Paint and Wallpaper [1994] ACTSC 121 (1 December 1994)

SUPREME COURT OF THE ACT

SAM HADZIC v BRISTOL PAINT LIMITED TRADING AS BRISTOL PAINT AND WALLPAPER
No. SCA29 of 1994
Number of pages - 11
Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Evidence - general principles - effect of evidence not challenged - credibility and weight - rule in Brown and Dunn - affidavits served setting out case not put to witnesses.

Browne v Dunn (1893) 6 R 67

R v Birks (1990) 19 NSWLR 677
Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472
Seymour v ABC (1977) 19 NSWLR 219
Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 238; (1984) 3 FCR 168

HEARING

CANBERRA, 27 October 1994
1:12:1994

Counsel for the Appellant: Mr G Lunney

Instructing solicitors: Romano and Co

Counsel for the Respondent: Mr J Harris

Instructing solicitors: Corrs Chambers and Westgarth

ORDER

THE COURT ORDERS THAT:

The appeal be dismissed.

DECISION

HIGGINS J This is an appeal from a decision given by Special Magistrate Murphy on 30 March 1994.

2. The plaintiff's claim was that he had ordered paint from the defendant, on or about 4 June 1990. The plaintiff is a professional painter and the defendant a supplier of paint and painting supplies.

3. It was the plaintiff's contention that he had ordered Wattyl French Grey paint but was supplied with British French Grey paint. The latter is a different shade of grey. When applied, it did not satisfy the architect for the Ainslie Village project on which the plaintiff had been engaged as a painting contractor. As Wattyl French Grey was required, the British French Grey was rejected. As a result of being required to repaint with the correct colour, the plaintiff claimed to have suffered loss of wages and materials to the extent of $5,963.66.

4. The defendant contended that on 28 July 1990, not 4 June 1990, the plaintiff had ordered British French Grey, not Wattyl French Grey. It supplied paint in accordance with that request. Hence, whatever the loss the plaintiff had suffered, the defendant was not responsible for it.

5. The matter was heard on 8 October 1992 and 5 November 1992 when a decision on the matter was reserved subject to written submissions being provided. The plaintiff's submissions were dated 28 January 1993, defendant's submissions were dated 12 March 1993 and a reply thereto was dated 6 April 1993. They were delivered on or shortly after the dates they bore.

6. There was a clear factual conflict between the parties.

7. The plaintiff gave evidence that, on 4 June 1990, Mr John Spooner, a representative of the defendant, came to see him at the Ainslie Village site. Mr John Longman, supervisor for the project, was also present. Mr Tom Strbac (or Sterbac or Sterbal), an employee of the plaintiff, was also in the vicinity at the time.

8. The plaintiff stated that he obtained a copy of the colour scheme schedule from Mr Longman and gave it to Mr Spooner in order that the specified paints could be supplied. That copy, he said, contained a description of the paint colour required for external application for the next stage of the project, namely, Wattyl French Grey.

9. The paint was subsequently delivered. The plaintiff said he paid for it with a cheque.

10. After the paint was applied, Mr Longman and the architect saw it. The architect rejected the work on the grounds that the paint was the wrong colour.

11. The plaintiff then, he said, went to the defendant's premises to complain. He saw a man he said was named "Mal", or something similar. He asked to see Mr Spooner. He claimed that he did not "catch him" in order to register his complaint until "4 or 5 weeks" later. Nevertheless, on that day, the plaintiff stated that he obtained and paid for a supply of "Wattyl French Grey" paint. A cheque for $1,163.66 was given for it. He thereafter stopped payment on the cheque.

12. A complicating factor is that the defendant, in separate proceedings, sued the plaintiff for the sum of $1,163.66 on the dishonour of the cheque. The defendant has obtained default judgment for that sum.

13. Cross-examination of the plaintiff seems to have been somewhat challenging. His command of English seems not to have been good and his answers were frequently unresponsive. He did assert that he was told the paint was wrong on 8 June 1990 and that that was the day he attended to get the correct paint. However, he was not adamant as to that date. He agreed that it could have been mid-June.

14. He agreed with a suggestion that the person he saw may have been "Neil Stafford" not a person called "Mal" or "Noel".

15. The plaintiff was shown an invoice dated 28 July 1990 which was said to be for the British French Grey supplied. He seemed to accept that suggestion. He was then shown another invoice allegedly dated 17 August 1990. It was suggested that it was for the replacement paint, Wattyl French Grey. The invoices were subsequently tendered. However, the copies are so bad that they yield very little independent information.

16. The plaintiff was also asked if he had spoken to a Mr Wayne Elton at the defendant's premises. He denied knowing or speaking to a Mr Elton.

17. No details of any conversation with Mr Elton or any other employee of the defendant were suggested to the plaintiff in cross-examination. Neither did re-examination by plaintiff's counsel reveal or touch on any such details.

18. A Mr Tomislav "Sterbal" (as recorded in the transcript) gave evidence for the plaintiff. He was the person referred to in the plaintiff's evidence as "Tom Strbac" and in the learned Magistrate's judgment as "Sterbac". That witness said that "about June 1990" a "representative from Bristol" came to the Ainslie Village site. The plaintiff and "the supervisor" (a reference to Mr Longman, it seems), he said, "gave him colours". That representative was named "Spooner". The latter agreed to make up the paint as so given to him. Mr Strbac, however, contradicted an assertion the plaintiff had made in his evidence that he, the plaintiff, never used British Paints.

19. Mr John Longman was also called in the plaintiff's case. He agreed that there had been an occasion when a representative of the defendant had called on site. His evidence was as follows:

Do you recall a day in June 1990 when a representative from Bristol
called on site? - - - Yes, Bristol called on site. I could not give you
an exact date, but Bristol and other paint works called up there from
time to time.
Do you recall the name of this particular person? - - - No, I do not.
Whilst this person was - how do you know that he was from Bristol? - - -
Because he had a Bristol sign on his shirt.
Whilst he was there, did Mr Hadzic ask you to do something? - - - Yes,
he asked for a copy of the colours for the outside of the second
building that we were doing at that stage ... So I gave - I just copied
off my schedule of finishes for Sam to pass to Bristol the colours that
the architect had chosen for that building.
You wrote it on a piece of paper? - - - Yes, wrote it on a piece of
paper and gave it to Sam.
What did you write on the piece of paper? - - - I just wrote down the
colour and the manufacturer.
What colour was that? - - - French Grey. It was a Wattyl paint because
that is what he had been using right through the whole building. He
uses Wattyl.

20. He confirmed that he wrote "Wattyl" on the paper. A sample colour scheme schedule was tendered. It was not the schedule in question. It did not really assist to corroborate Mr Longman's evidence. It was not a schedule on which "French Grey" appeared, whether alone or with a reference to a particular manufacturer.

21. Mr Longman strongly disagreed with a suggestion that it would have taken three weeks work to repaint the relevant building. The original painting was performed, on the plaintiff's evidence, over a weekend. It was repainted, Mr Longman deposed, during the next two or three weeks. Mr Longman then appeared to assert that it did take the plaintiff three weeks to do the repainting.

22. This was so obviously contradictory that his Worship was moved to comment to plaintiff's counsel:

Well, I am concerned, and I am so concerned that I have been
thinking of forwarding some of the evidence to the Attorney-General.
So, it may not be this man, but it does concern me, when people get
into the witness box and swear on oath, Mr Romano.

23. This was obviously directed to the veracity of the plaintiff's claim that the repainting, caused by the incorrect colour of the paint, had taken three weeks.

24. In cross-examination, Mr Longman conceded that the conversation he deposed to with the plaintiff could easily have been in July 1990 rather than June. He could not say what, if any, conversation there was between the Bristol representative and the plaintiff.

25. He was also asked:

Do you recall having a telephone conversation with Mr Neil Stafford
from Bristol Paints? - - - No, not really.
But you could have? - - - It is quite - yes, I could have.

26. Unfortunately, counsel for the defendant did not suggest to Mr Longman any particular form of such conversation. However, he did ask the following:

You don't recall that the gentleman who delivered the paint to you
said to you words to the effect: "I just want to check with you
which colour it was that you wanted to be used?" - - - No.
And you replied to him: "French Grey?" - - - No.

27. His Worship then asked him:

When you say you do not recall it, is it possible that he did say
that to you? - - - Well he could have. It is three years ago since the
conversation was supposed to have taken place. I don't recall the
person who delivered the paint. I seen the paint delivered. I don't
recall the person that delivered it actually speaking to me, but he may
have. I don't recall it. It wasn't something that - I get a lot of
conversations like that each day and I - unless it is something vital
...
Well, wouldn't it be vital, if he said, "Look, we are supplying British
French Grey"? - - - No - well, yes, it would have been because I
probably would have picked it straight away, because, as I say we use
Wattyl.

There was no re-examination by counsel for the plaintiff.

28. The defendant then called evidence. Mr Neil Stafford gave evidence that, on 28 July 1990, the plaintiff attended at the defendant's premises at Fyshwick. He requested Mr Wayne Elton, one of the defendant's employees, to supply a quantity of "French Grey" paint. Mr Elton asked whose French Grey was to be matched. Various manufacturers used different shades of colour. Bristol would use its own paints and tint them to match. He said:

So I was in the background, and Wayne asked me - pointed out to me
that Sam required some French Grey. There was no instruction on the
specification sheet.

29. He stated that "Sam had with him a specification sheet which had the colours set out as to what they should be". He said it also had Mr Longman's contact details on it.

30. Then, because the plaintiff did not seem to know what type of French Grey was required, Mr Stafford said he contacted Mr Longman. He was then asked:

What did you say to Mr Longman? - - - Well, I said that we had Sam
Hadzic, the painter, in our store, waiting to get some French Grey,
and we don't know which French Grey, neither does Sam, so I'm
ringing you, if you can see if you can throw any light on this
situation. John said to me ...

31. At this stage counsel for the plaintiff objected to the conversation but only on the ground that it was hearsay. The objection was dismissed. The witness continued:

He asked me which colours are mainly being used on this job.
Yes? - - - And I said British paints colours, and he said "Well supply
British paint, French Grey". So we did.
Had Bristol at Fyshwick previously supplied paint for this job? - - -
Yes.
Those paints were, from time to time, British paints and British tints?
- - - That's correct, yes.

32. It was only after the invoice said to evidence the transaction on 28 July 1990 was tendered that "Browne v Dunn" was raised as an objection to the tender. That invoice was accompanied by a second invoice dated 17 August 1990, said to evidence the second or replacement transaction for $1,163.66. The first was for $1,339.73. Items other than French Grey paint were said to have been purchased on each occasion.

33. Mr Carolan, for the defendant, indicated he was prepared to meet that objection by recalling the plaintiff and putting the contents of the invoices to him.

34. Mr Romano, for the plaintiff, objected to recalling the plaintiff but his Worship overruled that objection. The objection relied on the proposition that some sort of estoppel arose from the fact that the plaintiff had already been sued on the dishonour of the cheque for $1,163.66. The relevance or logic of that submission is difficult to follow.

35. The plaintiff was recalled. He was singularly unhelpful and unresponsive on the issue as to whether all or only part of the $1,163.66 was for replacement paint and ancillary materials necessitated by the need to repaint.

36. Re-examination elicited an assertion from the plaintiff that he signed all dockets for purchases from the defendant. However, nothing was put to him concerning any conversation he may have had with Mr Elton in Mr Stafford's presence or any conversation between the latter and the plaintiff.

37. Mr Stafford then resumed his evidence. He continued his account of the transaction of 28 July 1990 asserting that:

I said to Sam that, "John Longman has instructed me to supply
British Paints, French Grey".
The paint was mixed and delivered accordingly.

38. The plaintiff came in "two or three weeks later", presumably a reference to 17 August 1990, claiming the colour was wrong. Mr Stafford said he responded to that claim as follows:

No way. I did everything possible to make sure that we supplied you
with the correct colour. So if you've got a beef about it, then you
go back to the supervising architect who instructed me to supply
that colour.

39. During the course of Mr Stafford's evidence, Mr Romano apparently conceded that the dates alleged by Mr Stafford would be accepted.

40. Mr Romano sought to cross-examine Mr Stafford in an endeavour to confirm the plaintiff's evidence that he obtained a note of the colour from Mr Longman and gave it to Mr Spooner. However, that line was not pursued after Mr Carolan indicated that Mr Spooner was then present in Court and would be called to give evidence.

41. Cross-examination failed to cause Mr Stafford to resile from his version of his conversation with the plaintiff.

42. Mr Spooner, when called, agreed that he had met a person whom he accepted was Mr Longman, on a number of occasions when visiting the plaintiff at the Ainslie Village site. He agreed he had been shown there "a sample of carpets and tiles and brickwork and sundry colours". He denied being given anything to take away whilst at the site.

43. He said he was present on 28 July 1990 when the plaintiff came in and spoke to Mr Elton. He said:

I came into the discussion at about the same time that Neil Stafford
was brought into the conversation and Wayne had a piece of paper that
Sam had given him and on it was a complete listing of the types of paint
to be used, the finishes and their colours and the thing in contention
was that the exterior facade paint was to be a French Grey ...

44. To discover which "French Grey" was intended, Mr Spooner said that Mr Stafford made a phone call. Mr Stafford then said to the plaintiff, "It's British Paints French Grey".

45. In cross-examination, Mr Spooner denied he had ever been given a paper on which "Wattyl French Grey" had been written. He said that when he visited the site he observed that Mr Longman had written the colour scheme intended on a board. He denied that Mr Longman had written, in his presence, on any piece of paper, nor did Mr Longman, in his presence, refer to "Wattyl French Grey".

46. He was not persuaded to resile in any way from his evidence as to the conversation he claimed to have heard at the defendant's premises on 28 July 1990.

47. The matter was then adjourned until 5 November 1992 when Mr Wayne Elton was called to give evidence.

48. He said that, on 28 July 1990, the plaintiff attended the defendant's premises and showed him a set of specifications, "and asked for a colour which was French Grey and it had no company specified".

49. Mr Elton then spoke to Mr Stafford who then purported to ring Mr Longman. Following that conversation, Mr Stafford instructed him to mix "British Paints".

50. He was cross-examined on an affidavit he had made in November 1991. He denied a suggestion that he had, in that affidavit, given a different account of the incident of 28 July 1990.

51. It is true that the affidavit, which was tendered, deposed to a conversation, on delivery of the British French Grey, with Mr Longman, confirming that "British" was all right. Neither counsel had put that conversation to Mr Longman when he gave evidence. A somewhat different conversation was suggested by counsel for the defendant.

52. Mr Elton had not referred in that affidavit to the content of the statement Mr Stafford made concerning his intention to speak to Mr Longman. Nevertheless, Mr Elton was not persuaded to resile in any way from his account of what took place on 28 July 1990.

53. In reply, Mr Romano sought to tender a document he described as a plan of the building dated November 1989. It was said to have the manufacturer's name beside each specified paint colour.

54. It was suggested by Mr Romano that it could be regarded as being the "board" or document on a board seen by Mr Spooner in the possession of Mr Longman prior to 28 July 1990.

55. His Worship, correctly in my view, pointed out that any admissible evidence as to the provenance of the document and of the information then appearing on it, would need to come from Mr Longman. Mr Romano was offered, but declined, an opportunity to re-call Mr Longman to prove the document.

56. Mr Romano and Mr Carolan thereafter provided written submissions to his Worship. The plaintiff's contention was that, by reason of the application of Browne v Dunn (1893) 6 R 67, the plaintiff's case should be regarded as effectively unchallenged.

57. The submissions in reply disputed that contention referring, inter alia, to R v Birks (1990) 19 NSWLR 677, 687 per Gleeson CJ. But for that legal contention, the issue was purely factual.

58. The plaintiff bore the onus of proof. To have found a verdict for the plaintiff, his Worship would have had to have concluded that the plaintiff's account of his ordering French Grey paint was the more probable, despite the evidence of Messrs Stafford, Spooner and Elton.

59. In his written reasons for decision his Worship correctly acknowledges this. He also acknowledges that he was assisted by seeing and hearing the various witnesses giving their evidence.

60. That, of course, is an advantage I am denied. In those circumstances, insofar as any judgment as to credibility turns, or seems to turn, on an assessment of the demeanour of the witnesses, it is appropriate for an appellate court, even on an appeal by way of rehearing, to defer to the conclusions as to credibility arrived at by the learned Special Magistrate. That is, of course, unless his Worship should appear to have misused his advantage or to have been clearly wrong in his assessment of the evidence.

61. It was his Worship's view that:

The plaintiff presented as a most unimpressive witness. I am not
prepared to place any reliance on the accuracy of his evidence and in my
opinion his evidence was shot to ribbons. I did not accept him as a
witness in truth.

62. The evidence of Messrs Strbac (Sterbal) and Sabic was viewed almost as unfavourably. In his Worship's opinion:

There is such a discrepancy that little weight can be placed on
their evidence at all.

63. The evidence of Mr Longman was not regarded by his Worship as untruthful. However, he did say:

... I am satisfied that he is mistaken when he says he gave Spooner
an order on site. This is obvious from the rest of the evidence which
clearly places the plaintiff as the person who placed the order at the
defendant's shop premises.

64. That statement is, in fact, not entirely an accurate account of Mr Longman's evidence, as Mr Longman only gave an account of giving a piece of paper to the plaintiff for the purpose of conveying it to the defendant. It is possible that was the piece of paper seen by Mr Elton.

65. In that case, of course, Mr Longman would have had to have been mistaken in his recollection that he qualified the "French Grey" with "Wattyl" when he copied out the required paints.

66. His Worship does not refer to the likelihood of Mr Longman mistakenly assenting to the ordering of British French Grey, but if that is what Mr Stafford heard and Mr Spooner confirmed upon delivery of the paints, it is possible that such an error was made.

67. It is clear that no party or witness had any interest in obtaining or providing the wrong shade of grey, but if the defendant's witnesses were accepted, then error on the part of Mr Longman was not such an inherently unlikely proposition as to require that the testimony of those witnesses be rejected. Some might think it unlikely that Mr Longman would make such an error but that really depends on an assessment of him as a witness.

68. Insofar as the decision of the High Court in Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 has application to the present case, it would require that his Worship's assessment of the witnesses be accepted.

69. I cannot conclude that his Worship misused the advantage he had in seeing and hearing the witnesses or, in forming the view he did, contradicted or ignored undisputable testimony.

70. The only question is whether the application of Browne v Dunn (supra) leads to a conclusion that to find against the plaintiff's account and that of Mr Longman would be procedurally unfair.

71. It is true that counsel for the defendant failed to put the substance of the evidence ultimately led from his witnesses to the plaintiff and to Mr Longman. That could have led his Worship to be more impressed than he might otherwise have been as to their veracity. His Worship was singularly unimpressed by the plaintiff and his witnesses. It is unlikely that he would have been more impressed had they been more effectively cross-examined.

72. The rule in Browne v Dunn, whatever its true scope, has no sensible application if a party or witness is on notice that his or her version of events is in contest: see Seymour v ABC (1977) 19 NSWLR 219; Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 238; (1984) 3 FCR 168.

73. In this case, affidavits from both Mr Elton and Mr Stafford were served on the plaintiff's solicitors before the hearing setting out what purported to be a precise recollection of the conversation between themselves and the plaintiff and themselves and Mr Longman.

74. There was, accordingly, no unfairness as a result of the failure of counsel for the defendant to cross-examine upon the conversations and events therein referred to. Indeed, counsel for the plaintiff had the advantage of those accounts to put to the witnesses for the defendant if it was considered that they were inconsistent with their evidence. He would have been entitled to put those versions to his own witnesses for their comment in any event.

75. It follows that there is no substance in any of the grounds relied on by the appellant in support of the appeal.

76. The appeal is dismissed.