Armstrong v Schneider

[2011] WADC 142

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   ARMSTRONG -v- SCHNEIDER [2011] WADC 142

CORAM:   WISBEY DCJ

HEARD:   6 SEPTEMBER 2011

DELIVERED          :   6 SEPTEMBER 2011

FILE NO/S:   APP 91 of 2010

BETWEEN:   FAY ARMSTRONG

Appellant

AND

FIONA SCHNEIDER
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE BOON

File No  :JO CIV 1810 of 2008

Catchwords:

Civil - Appeal - Appeal from judgment of Magistrates Court in minor case claim - Allegation of breach of requirement for natural justice

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr W L Meredith

Solicitors:

Appellant:     Not applicable

Respondent:     William Llewellyn Meredith

Case(s) referred to in judgment(s):

Nil

1. WISBEY DCJ:  On 17 September 2008 the respondent lodged a minor case claim in the Magistrates Court of Western Australia.  The cause of action was identified generally in these terms:

   1.The respondent purchased from the appellant a puppy on the appellant's representation that she was its breeder and it was a pure bred golden retriever.

   2.The appellant further represented that the puppy had received appropriate veterinary attention.

   3.The puppy became very sick shortly after purchase and its condition necessitated substantial veterinary care and consequent fees.

2. The file suggests that there was considerable difficulty serving the claim on the appellant, who appeared to be evading service.

3. After some protracted preliminary skirmishing, the matter came on for hearing before her Honour Magistrate Boon at Perth on 17 August 2010.  The hearing occupied that day, and was then adjourned part‑heard to 8 October and occupied the whole of that day.  Her Honour reserved her decision, which she delivered on 9 November 2010 when, for the reasons identified in a comprehensive written decision, she awarded the respondent $4,651.04 and costs of $128.15.

4. By notice of appeal filed 13 November 2010 the appellant seeks to have the orders of the magistrate set aside, giving as the ground of appeal 'procedural fairness rule did not apply'.

5. Section 32 of the Magistrates Court (Civil Proceedings) Act 2004 restricts appeals from a judgment of the court in a minor case to situations of jurisdictional error or denial of natural justice.  As has been indicated it is on the latter basis that the appellant brings these proceedings.

6. In an affidavit sworn 18 July 2011, the appellant identifies the alleged procedural unfairness.  Paragraphs 2 and 3 simply express disagreement with the magistrate's findings of fact which are not the consequence of procedural error.  The appellant identifies her claim of procedural unfairness in pars 4 – 6 namely that she did not receive some of the respondent's documentation before trial.  She confirmed that to be her position in argument before the court, but acknowledged that she was provided with all the relevant documentation on the first day of hearing.  Having regard to the manner in which the trial was conducted, and the fact that there was a period of almost two months between the first and second days of hearing, even if there was merit in her contention that there was delay in providing the documentation, it would not have disadvantaged her.

7. In her reasons the magistrate identified all relevant issues for determination, and her findings on those issues in favour of the respondent and adverse to the appellant, were amply supported by the evidence presented.  Even if there had been adverse procedural consequence, it could not have affected the outcome of the controversy.

8. The appeal will be dismissed with costs.