Latham v Azimullah[2017] QDC 140

DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   The applicant’s claim against the respondents was for damages pursuant to s 236 of the Australian Consumer Law. That claim related to alleged misrepresentations by the respondents concerning whether a prime mover and trailers, purchased by the applicant from the first defendant in the Magistrates Court proceedings, could lawfully be used and registered as a road train.

3. [3]
   The applicant obtained summary judgment against the first defendant, a company of which the first respondent, who was the second defendant in the court below, is the sole director and shareholder. The second respondent (the third defendant in the Magistrate Court proceedings) was found by the learned Magistrate to have been an agent of the first defendant company, engaged by it to drive the prime mover and attached trailers prior to their sale.

4. [4]
   The learned Magistrate dismissed the applicant’s claim against each respondent.

Leave to Appeal

5. [5]
   The applicant, because of his delay in instituting the appeal, first seeks leave to bring his appeal out of time.

6. [6]
   Both parties were represented at the trial of the matter. The trial was heard on 6 September 2016 and the learned Magistrate gave his decision on 16 September. When the matter was called on at 8.59am on that day, there was no appearance for the applicant. The learned Magistrate indicated, on the record, that the applicant’s solicitors “were told” by his clerk that he was to deliver his decision at that time, and so proceeded in their absence.

7. [7]
   An affidavit of the applicant’s solicitor, Mr Slasberg, states he first became aware of something happening in respect of the matter when he received, on about 6 December 2016, correspondence from the court returning the exhibits tendered during the trial. The affidavit indicates that the solicitors then made enquiries of the registry and on 12 December 2016 were advised that judgment had been entered, but that no published judgment or reasons were available. Mr Slasberg then ordered a transcript of proceedings of 16 September 2016, which was received on 14 December 2016. The Notice of Appeal was filed on 23 December 2016, expeditiously after ascertaining that judgment had been delivered, but some significant time after the actual judgment of 16 September.

8. [8]
   An affidavit of Mr Slasberg indicates that despite extensive enquiries, his office has no record of being advised by his Honour’s clerk of the fact judgment was to be given on 16 September.

9. [9]
   There is a further dispute potentially relevant to whether or not leave to appeal should be granted. The respondents’ solicitor, Mr Muir, in an affidavit filed on 9 January 2017, says he sent a letter to the applicant’s solicitor on 19 September 2016. That letter is exhibited to the affidavit and refers to the fact that judgment was delivered on 16 September 2016 and that the court had dismissed the applicant’s claim. Curiously, in view of what is later to be discussed, the letter indicates it was “by email only” and then sets out the applicant’s solicitor’s email address.

10. [10]
    The applicant’s solicitor denies ever receiving the letter. A check of his email, and that of the respondents’ solicitor’s email, showed, I was told by both parties, that it was never emailed.

11. [11]
    The respondents’ solicitor said, however, that it was posted. He told me his office records confirmed that fact. Curiously, the applicant’s solicitor’s office records, I was also told, do not record ever receiving it. There the matter lies.

12. [12]
    In my view, it is not possible or necessary to resolve the conundrum of the missing letter or of whether the learned Magistrate’s clerk in fact spoke to a responsible person at the applicant’s solicitor’s office informing them of the time and date of delivery of judgment or why, for some reason, matters have gone awry.

13. [13]
    The respondents’ solicitor effectively conceded, in circumstances where there is no alleged prejudice, and where, on any view, any delay cannot be attributed to the applicant personally, that it is appropriate, if I consider that there are sufficient merits in the appeal, to extend time.

14. [14]
    Ultimately, in circumstances where I do conclude, for the reasons hereinafter set out, that both appeals have significant merit, I will order that the time for filing the Notice of Appeal be extended to allow for filing of the Notice of Appeal on 23 December 2016.

Statutory Provisions

15. [15]
    Before proceeding to a consideration of the issues involved in the case, it is first necessary to briefly consider relevant statutory provisions.

16. [16]
    The provisions of the Fair Trading Act 1989 (Qld) (FTAQ) apply, inter alia, to persons carrying on business within Queensland.  The Fair Trading Act applies Schedule 2 – The Australian Consumer Law of the Competition and Consumer Act 2010 (Cth) (hereinafter ACL) to such transactions, known in such circumstances as the Australian Consumer Law (Qld) (ACLQ). 

17. [17]
    Section 18 of ACL provides:

“(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive.”

18. [18]
    Section 29 of ACL provides, so far as is relevant:

“(1) a person must not, in trade or commerce, in connection with the supply or possible supply of goods or services, or in connection with the promotion by any means of the supply or use of goods or services:

1. (a)
   make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular previous use; or

2. (b)
   make a false or misleading representation that services are of a particular standard, quality, value or  grade; or

 …

7. (g)
   make a false or misleading representation that goods or services have sponsorship, approval, performances, characteristics, accessories, uses or benefits.”

19. [19]
    Section 236 of ACL provides:

“(1) If

1. (a)
   a person (the claimant) suffers loss or damage because of the conduct of another person; and

2. (b)
   the conduct contravened a provision of Chapter 2 or 3;

the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.”

20. [20]
    The provisions of s 18 are in Chapter 2 of ACL and the provisions of s 29 in Chapter 3 thereof.

21. [21]
    It should be noted that pursuant to those statutory provisions, the potential liability of each of the respondents arises directly if their conduct contravenes s 18 or 29 of ACL and if, as a consequence, the applicant suffered loss or damage. In Houghton v Arms (2006) 225 CLR 553 the court held that employees were personally liable under s. 59 of the Victoria Fair Trading Act. The act was similar to the ACL, and FTAQ. Furthermore the approach of the court in that case requires, in my view, that a similar approach be adopted for company directors and agents.

The Pleadings

22. [22]
    The appellant’s case was essentially that it was represented by each of the respondents, in different ways, that the vehicles were together capable of being registered and lawfully used as a road train but that the vehicles were in fact capable of being used only as individual trailers and not in combination as a road train.

23. [23]
    In their respective defences, the respondents each admit that the applicant “has suffered the losses as alleged in paragraphs 56 – 66 of the Amended Statement of Claim, but denies they were incurred as a result of any misrepresentation allegedly made” by the respondents. The damages claimed totalled $112,415 as particularised in para 65 of the Further Amended Statement of Claim (FASC). It is unnecessary to set out those admitted losses.

24. [24]
    The issue was thus whether the respondents, or either of them, were liable for such damages and not the calculated quantum of such losses.

25. [25]
    Each of the respondents filed separate Amended Defences (AD) to the appellant’s Further Amended Statement of Claim, though they are substantially similar. Each utilised the same solicitor.

26. [26]
    The summary judgment obtained against the first defendant was for damages for breach of contract for the sale of the prime mover and trailers. It was admitted by all parties that in September 2014 the company was the registered owner of a Ford Louisville Prime Mover, a Fruehauf Dolly Trailer, a McGrath Tri-Axle Semi Trailer and a Freighter Flat Top Trailer.

27. [27]
    It was admitted that the prime mover and trailers were advertised for sale in a magazine “Deals on Wheels”. The advertisement was admitted into evidence (exhibit 2). It included a photo of the prime mover linked to the trailers to form a long continuous vehicle. The advertisement stated:

“BEST VALUE FOR MONEY, COTTON RIGG FOR SALE

Truck – 1993 Ford TS 9000/Freighter Lead trailer – 44ft 6”/Freuhauf Road Train Dolly/McGrath Dog trailer – 44ft 6”.  Best set up for fuel economy – 2kms to the lt with road train.  Both trailers set up with Cotton Strap and winchs – out of the paddock loaded and strapped in less than 20mins.  Comes with cotton contracts for next year – pay off the cotton rigs in the first two months.  All photos and details on trucks/trailers on the website www.tradetrucks.com.au – Type ref #DIY540933 into Keywords – will deliver into QLD/NSW – Please Contact Kevin 0418195113 or Faaz on 0411968963… Qld.  DIY540822 041819511. $75,000 + GST for the lot.”

28. [28]
    After seeing the advertisement, the applicant, it was admitted, spoke to the second respondent by phone. The applicant alleged that he asked the second respondent if it was “a legal road train” and alleges the second respondent confirmed that it was (see para 10 of FASC). The second respondent denied that conversation alleging that the applicant only “wished to inspect the road train” (para 5 of the second respondent’s AD).

29. [29]
    It is common ground that the applicant then attended, on or about 9 September, the second respondent’s property at Mt Morgan. The appellant alleged that when he arrived at the property, the vehicles were not assembled as a road train. He alleged he was advised by the second respondent that the Mr Morgan area was not road train accessible and that individual trailers needed to be taken to Dululu, 15 minutes away, it being the nearest town that was road train accessible. That allegation was admitted by the second respondent in his AD. The first respondent in her AD, pleaded that she was “unable” to plead to that allegation as “she was not privy to the conversation”.

30. [30]
    It is also common ground that at the time of the inspection, and at all material times thereafter, a “ROAD TRAIN” sign was affixed to the bonnet of the prime mover and the rear of the flat top trailer. In giving evidence at trial, the applicant said that in fact the sign had been turned around (see T1-13, l 10 ff). As a consequence the imprinted words faced the vehicles themselves, and not outwards. The applicant said that such signs are turned over “when you’re not pulling a road train”, as of course was the case at Mt Morgan where road trains were not allowed. The applicant said in evidence however, that he could still see the words “ROAD TRAIN” on the sign – presumably seeing the imprint of the words in mirror writing. It is further alleged in the FASC that at the time of his inspection on 9 and at a further inspection on 17 September the second respondent was again asked whether the train was a compliant road train and was “legally compliant with the requirements necessary to operate… as a road train”. (see paras 16 and 21 of the FASC). The second respondent denied that assertion (paras 9 and 13 of the AD) and the first respondent again pleaded that she was unable to plead to the first allegation (para 5 of her AD) and denied the second (para 9 of the AD).

31. [31]
    I should add, that when he gave evidence the appellant, whilst certain he was told the vehicles were a legally registered road train, indicated he was not certain if this conversation was during the first phone conversation or later during the inspection on either 9 or 17 September.

32. [32]
    Much more was admitted on the pleadings. In particular, it was admitted that the applicant paid the purchase price, less a $500 deposit earlier paid, to purchase the prime mover and trailers on 17 September. It is admitted that the respondents on 17 September together drove the applicant to the Department of Main Road and Transport in Rockhampton where the parties signed forms transferring the vehicles to the applicant. After returning to Mt Morgan, the applicant, over the ensuing two weeks, moved the trailers to Dululu. It is admitted that at no time did the respondents advise the applicant that the vehicles could not legally be operated as a road train (see paras 30 of the FASC, admitted in para 13 of the AD of the first respondent and para 18 of the AD of the second respondent).

33. [33]
    The applicant alleges that on 3 May 2015, he attempted to renew the registration of “the train” but was told it was not compliant with necessary standards, could not in its then state be so registered and, importantly, had never been registered as a road train (see para 39 of the FASC). Each of the respondents plead (paras 14 and 29 of their respective AD) that they were unable to plead to that allegation “until after disclosure had been completed”. At trial, no further pleading was relied on. In such circumstances, in the absence of any denial, the allegation is deemed to be admitted, having regard to UCPR r 166(1) and (5). The respondent’s solicitor conceded that effect of the pleadings during the trial.

34. [34]
    It was further admitted that an expert report of Walsh Engineering Consultants confirmed that the “train was not compliant for road train use”. More importantly para 50 of the FASC, which was admitted in para 17 of the first respondent’s AD, and to which the second respondent did not plead, with the consequence that it is deemed to be admitted, alleged that “the train is not and has never been compliant with the requirements to legally be operated as a road train, such requirements being identified in the report of Walsh Engineering Solutions referred to…”.

35. [35]
    In paras 52 – 55 of the FASC, the applicant set out his case related to misleading and deceptive conduct by the respondents.

36. [36]
    The applicant alleged that the first respondent’s placing of the advertisement, and affixing of the “ROAD TRAIN” sign, both earlier referred to, constituted a representation that the vehicles were “compliant and legally capable of being operated as a road train” and was done to induce the applicant to purchase it as such (paragraph 52 and 52A of the FASC).

37. [37]
    The applicant alleges that the second respondent made the oral representations referred to earlier during the initial phone call or during subsequent inspections. In particular, it was alleged, and the applicant said in evidence, that the second respondent was asked “is the whole show legal” and he said that it was. It was also said he made representations about the quality of the vehicles and their use to haul cotton for various customers. It was alleged those representations were also a representation that the vehicles were “compliant and legally capable of being operated as a road train” and was done to induce the applicant to purchase it.

38. [38]
    The respondents admit that in their dealings with the applicant, they were “acting in trade or commerce”.

39. [39]
    In para 53B of the FASC, the applicant alleged that the first respondent and/or second respondent knew, inter alia,:

1. (i)
   that the train was not, and had not ever been, registered as a road train combination with the Department; and

2. (ii)
   it was not capable of being legally operated as a road train.

40. [40]
    The respondents each denied that allegation, saying they “did not have the knowledge alleged”. (see paras 23 and 26 of their respective AD). It should be noted that the denial goes to the respondents’ knowledge of those alleged facts and not to the truth of the assertions themselves. As I have said, the allegation in para 50 of the FASC, that the train “is not and has never been compliant with the requirements to be legally operated as a road train” as identified in the Walsh Engineering Solutions report, was admitted.

41. [41]
    In such circumstances, the matter came on for trial before the learned Magistrate.

Consideration of Judgment

42. [42]
    In dismissing the applicant’s claims against the respondents for misleading and deceptive conduct, the learned magistrate found:

1. (1)
   The evidence of the plaintiff was vague and unsatisfactory.

2. (2)
   The plaintiff was “careless” as to his own interests.

43. [43]
    In so concluding he found, in relation to the purchase, that despite having ample opportunity to do so, the plaintiff:

1. (a)
   Made no proper inspection of the truck, trailer or dolly.

2. (b)
   Made no enquiry about, or inspection of, the registration of each of the “parts of the motor vehicle”.

3. (c)
   Did not inspect the compliance plates of any of the components of the purchase.

4. (d)
   Did not inspect the log books or registration papers which were available.

44. [44]
    Nowhere in the judgment however, does His Honour indicate what such inspections would have revealed. In particular, he did not suggest that any inspection would have revealed that the vehicles were not capable of registration as a road train.

45. [45]
    There was evidence, though it was scant, that on a prior registration of vehicles as a road train by the applicant, the registration certificate he had received “indicated…that it was a road train”. He also said that for these vehicles the certificate of registration would, in normal circumstance, have an indication upon it that it was a road train (T1-29L40/45).

46. [46]
    He was not however cross-examined in a way that would have demonstrated that the registration papers, compliance plates, log books or other documents were items that would, if inspected, have indicated the vehicles were not registered as a road train. There was nothing that suggested that would have alerted the applicant to the fact, as was admitted, that the vehicles were not able to be registered and so legally used as a road train.

47. [47]
    The learned magistrate concluded:

“Merely asking ‘is the whole show legal?’, an imprecise question at best goes nowhere near a proper enquiry as to a purchase of such value by a prospective purchaser.  I find that, on the whole of the evidence, the plaintiff disregarded and was careless as to his own interests and did not take reasonable care of those interests.”

48. [48]
    In so concluding the learned magistrate referred to the following passage from ACCC v TPG Internet Pty Ltd  [2013] HCA 54 at [39] where French CJ, Crennan, Bell and Keane JJ said:

“Whether speaking of representations to the public at large or in negotiations between parties of equal bargaining power and competence, the quoted observations in Puxu and Miller go to the characterisation of conduct as misleading or deceptive.  Conduct is misleading or deceptive or likely to mislead or deceive if it has a tendency to lead into error.  That is to say there must be a sufficient causal link between the conduct and error on the part of persons exposed to it.  It is in that sense that it can be said that the prohibitions in s 52 and s 18 were not enacted for the benefit of people who fail to take reasonable care for their own interests”.

49. [49]
    The assertion that the applicant’s loss arose from taking lack of reasonable care on his own behalf was not one advanced at trial by either respondent. No such allegation was pleaded or put to the applicant in his cross-examination. Furthermore whilst I have identified what his Honour said the applicant might have done, there was no evidence that any of those steps would have alerted the applicant to the fact that the vehicle was not able to be so registered and no evidence, other than his own limited admission, as to how he might have ascertained it was in fact not so registered. Furthermore, having regard to his Honour’s findings about the first respondent’s belief that the vehicles were able to be so used enquiries with the respondents would have been of no use. It is not reasonable to think either respondent would have advised the applicant in any other way, having regard to their belief.

50. [50]
    The fact that the issue was not raised on the pleadings is determinative of the issue. In Palmer St. Developments Pty Ltd & Anor v J and E Vanjak Pty Ltd & Anor [2016] QCA 138, Dalton J, with whom Gotterson JA and Atkinson J agreed said at [20] and [21]:

“[20] The appellant’s first point was that to decide the case on the basis of abandonment, where that had been neither pleaded nor raised at trial, was a denial of natural justice.  Undoubtedly this is correct. …

[21] … to reason that natural justice ought not to be accorded to a party or parties, because there is nothing which the court can imagine they could say, is fundamentally incorrect.  The court ought not imagine what a party may or may not say; a court ought to hear the parties on matters which affect their interests.”

51. [51]
    Furthermore, even if it had been an issue raised on the pleadings there are real concerns as to the correctness of his Honour’s finding.

52. [52]
    In Neilsen v Hempston Holdings Pty Ltd & Anor (1986) 65 ALR 302 Pincus J found that when considering a right to relief based on s 52 of the Trade Practices Act it is not necessary that there be a finding that the applicant took reasonable care for his own interests.  At page 309 his Honour said:

“Mr McMillan argued that, in entering into such a large transaction, reasonable care for one’s own interests would at least dictate some examination of the primary accounting records.  Counsel said that if it is found that the applicant failed to take reasonable care for his own interests, he cannot succeed under s 52.  I do not decide the matter on that basis; I cannot accept that the remarks of the Chief Justice were intended to have the effect it just mentioned. …While it is not possible to hold that the applicant, in all the circumstances, took reasonable care for his own interests, I reject the contention that such a finding is a necessary foundation of his right to relief…”

53. [53]
    His Honour then quoted from Clerk and Linsell on Tort, 15^th Edition page 854 where the learned authors said:

“Carelessness of plaintiff in not discovering the untruth is no defence.  A person to whom the representation is made is not deceived if he actually knows the truth, ie knows the falsity of the representation at the time it is made to him, but it is no answer to an action from misrepresentation that the plaintiff might have discovered the falsity by the exercise of reasonable care.”

54. [54]
    In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 the court held that merely to manufacture and distribute furniture to retailers, which though labelled with the manufacturers name, resembled closely furniture of another manufacturer was not misleading or deceptive. The court said that conduct that merely causes some uncertainty in the minds of a prospective members of the public­­­­ does not contravene s. 52 of the TPA.

55. [55]
    In consideration of that issue, Gibbs CJ commented at p. 199 of Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd, part of which was referred to at [38] of ACCC v TPG Internet (supra) on which the Learned Magistrate relied:

“Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive.  It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct.  Although it is true, as have often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, this section must in my opinion [be] regarded as contemplating the effect of the conduct on reasonable members of the class.  The heavy burdens which this section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests.  What is reasonable will [of] course depend on all the circumstances.  The persons likely to be affected in the present case, the potential purchasers of a suite of furniture costing about $1,500, would, if acting reasonably, look for a label, brand or mark if they were concerned to buy a suite of particular manufacture.” 

56. [56]
    It is clear from the whole of that passage that His Honour comments were related to the issue of determining what persons or class of persons were to be considered as possible victims for the purpose of deciding whether conduct was likely to mislead or deceive. In a passage slightly earlier in the judgment than the passage on which the learned Magistrate relied, Gibbs CJ had said the court must decide objectively whether the conduct was misleading or deceptive or likely to mislead or deceive. It was in relation to that issue that the Chief Justice said that the conduct of the persons who failed to take reasonable care of their own interest by reading the tag attached to the furniture which identified the actual manufacturer, could not be considered the benchmark when deciding whether the conduct of the manufacturer was misleading or deceptive or likely to mislead or deceive.

57. [57]
    Here there can in my view be no doubt that the advertisement placed by the first respondent was misleading and deceptive and likely to mislead or deceive. The conduct which the Learned Magistrate determined amounted to lack of reasonable care and so disqualified the applicant from the protection of the section was not conduct in assessing whether the advertisement was misleading. It was conduct which the magistrate determined a reasonable person would have undertaken, which would have exposed the clearly deceptive nature of the advertisement.

58. [58]
    Such an approach is inconsistent with the approach of Pincus J in Neilsen v Hempston Holdings Pry Ltd (1986) 65 ALR 302, especially at p. 309.

59. [59]
    His Honour found the evidence of the applicant “vague and unsatisfactory” as I have previously said. But also found the evidence of the second respondent “as vague and unsatisfactory as that of the (applicant)”. He found the first respondent was “by the far most impressive” witness. In particular he accepted her evidence that she honestly believed the truck and trailers were able to be used lawfully as a road train; a belief reinforced by the fact that on repeated occasions Queensland Transport inspectors had stopped and inspected the truck, presumably when being driven as a road train by the second respondent, without fault being found.

60. [60]
    Curiously, in view of the fact that the action before his Honour was against the respondents for misleading and deceptive conduct, they not being parties to the admitted contract between the applicant and the first defendant’s company, his Honour said;

“The (applicant’s) further amended statement of claim was heavy on allegations in relation to misleading and deceptive conduct but very light on allegations of fact capable of supporting breach of contract”.

61. [61]
    That comment is particularly curious in circumstances where the applicant had pleaded in paragraph 50 of the FASC that “in breach of the terms of the contact the train is not and has never been compliant with the requirements to legally be operated as a road train”, an allegation admitted, or deemed to have been admitted, by the respondents.

62. [62]
    Be that as it may, his Honour said that the applicant’s case in relation to the alleged misleading and deceptive conduct “is premised largely upon his characterisation of the advertisement”.

63. [63]
    That issue was however relevant only to the case against the first respondent, who had placed the advertisement in that form in the magazine. It was not relevant to the case against the second respondent, other than being a background circumstance against which his alleged agreement to the question of the applicant as to whether the “whole show was legal”, and his statement that they could be used to haul cotton was to be judged.

64. [64]
    Ultimately his Honour found that the advertisement was not objectively misleading or deceptive (J4L40). He found that the advertisement did not objectively state that the vehicle was for sale as a “road train”.

65. [65]
    In so concluding he referred to the definition of “road train” in schedule 4 to the Transport Operations (Road Use Management) Act (hereinafter TORUM), as follows;

“A combination consisting of a motor vehicle towing two or more trailers that is not a B double”. 

66. [66]
    His Honour said there was no evidence that what the applicant had purchased was a B double and concluded therefore that the vehicle he had purchased fitted the definition of a road train in TORUM i.e. a combination consisting of a motor vehicle towing two or more trailers.

67. [67]
    He found that whether the combination was capable of being registered as a road train was irrelevant. He also found the impugned conduct of the second respondent (ie his acceptance of the question “is the whole show legal”) was too vague to amount to a representation that the vehicles could be registered as a road train.

68. [68]
    The reference in the judgment to the definition of “road train” in TORUM is unhelpful. The term is used in that act only in s 79, which deals with offences involving liquor or other drugs by, inter alia, the driver of a road train, defined as I have set out. That definition has in my view no relevance to the issue or whether the vehicles here sold were registered as a road train or whether the representation by either respondents amounted to a representation that the vehicles were capable of being so registered.

69. [69]
    The term “road train” is differently defined in other acts, for example the Heavy Vehicle National Law Act (Qld). The definition in TORUM does not seek to set out the requirements of a road train which appear in schedule 3 of the Heavy Vehicle (Vehicle Standard) National Registration which is applied as the law of Queensland under the Heavy Vehicle National Law Act  (Qld).

70. [70]
    In my view the advertisement placed by the first respondent very clearly represented that the vehicles in combination could lawfully be used as a road train. Apart from the cogent image of the prime mover connected to the trailers to form a continuous vehicle, the references to a “lead” trailer, “road train dolly” and “dog trailer” support that view. Even more importantly the words “best set up for fuel economy – 2kms to the Lt with road train” are a clear representation that use of the vehicles purchased by the applicant in that combination was not only the most efficient use of them in terms of fuel economy, but a representation that they could lawfully be so used.

71. [71]
    The fact they could not be so used was admitted in the pleadings (see my reference to paragraph 50 of the FASC and the respondent’s admission or deemed admission of that allegation previously referred to).

72. [72]
    The placement of the “ROAD TRAIN” sign on the front of the prime mover and the rear of the dog trailer, even though turned around as I have described, was in my view also a representation to similar effect i.e. that the vehicles were able to be used as a road train. The reason for their being so-turned around was understood by all parties, as explained in evidence, namely it was due to the fact that road trains were not able to be used in the Mount Morgan area and so the signs required to be placed on it when needed as a road train were not able to be displayed in such areas. The clear representation from the fact of the attached signs was that, in areas where road trains were allowed, the purchased vehicles could be used as a road train.

73. [73]
    There can be no doubt the applicant relied on the representation implied by the advertisement and “ROAD TRAIN” sign in agreeing to purchase the vehicle. In my view, that is sufficient to dispose of the claim against the first respondent.

74. [74]
    Greater difficulty attaches to the claim against the second respondent. The representation on which the applicant relies is his question to the second respondent, “is the whole show legal”, or similar words, and the second respondent’s response that it was. That representation, if made, must in my view be seen against the background of the advertisement and presence of the reverse signs. The second respondent is not of course liable for those two matters but the question and answer must be viewed in circumstances where the second respondent knew the applicant had seen the advertisement and perhaps the signs, and was himself aware of the contents of the advertisement.

75. [75]
    If he was asked the question and gave the answer, as the applicant said, either over the phone or during the inspection, then in my view his answer would have misrepresented the true position. It was not “legal” as a road train. That must in my view have been the import of the question, if the applicant indeed asked the question.

76. [76]
    There is however a difficulty in my concluding that he did. The learned magistrate found the evidence of both the applicant and second respondent vague and unsatisfactory. In relation to the issue the learned magistrate said;

“In my view and I find that the question asked by the (applicant) is far too vague for such a reading, as was (the second respondent’s) answer’.

77. [77]
    Counsel for the applicant urged upon me the view that such a statement in the judgment amounted to a finding, on balance, that the applicant did in fact ask that question of the second respondent who gave the answer referred to. I am not satisfied that is so. It is in my view very possible that the learned magistrate was saying no more than he found that if the question was asked as the applicant said he had, and if the second respondent had answered as the applicant said he had, then he found the question and answer were both too vague to be construed as a representation as to the ability of the plaintiff to register and operate the vehicle in combination as a road train.

78. [78]
    The learned magistrate found that the first respondent was of the belief that the vehicles, in combination, were able to be used lawfully as a road train, because of her reliance on the repeated inspections by Queensland Transport inspectors. Although the magistrate made no specific finding in that regard with respect to the second respondent, it seems to me likely that he too may have been of that belief since he was, I understand, the driver of the vehicle on such inspections.

Conclusion

79. [79]
    In the circumstances of this case there can be no doubt that the advertisement, and also the reversal of the signs, when still attached to the vehicles in an area where road trains were banned, being the impugned conduct of the first respondent, was very obviously misleading or deceptive. Her conduct was, I conclude, likely to induce a party to believe it was legally a road train and able to be so registered under the Heavy Vehicle National Law Act (Qld). The learned magistrate ought have so found.  Because however of the uncertainty as to whether or not the Magistrate in fact found that the second respondent was asked and gave the response that the applicant said he had, it is my view that such matter cannot be determined on appeal. 

80. [80]
    In circumstances where the quantum of the applicant’s claim was admitted I would therefore allow the appeal with respect to the claim against each of the first respondent and second respondent but give judgment for the applicant only against the first respondent. I propose to order that the action against the second respondent be retried.

81. [81]
    Following circulation of these reasons, the parties are agreed the orders of the Court should be:

1. The time for filing the Notice of Appeal be extended to 23 December 2016.

2. Allow both appeals and set aside the judgments entered below against the applicant.

3. The action between the applicant and the second respondent be re-tried in the Magistrates Court, to be heard by a magistrate other than the magistrate who originally heard the matter.

4. There be judgment for the applicant against the first respondent in the sum of $112,415.54 together with interest thereon at the rate of eight per cent per annum from 31 March 2015 to date, amounting to $19,485.32.

5. The respondents pay the appellant’s costs of and incidental to the appeal.

6. The first respondent pay 50% of the appellant’s costs of the trial at first instance, to be agreed or assessed on the standard basis.

7. Otherwise the costs be reserved to the resumed trial.