Astone v Cat Welfare Society - [2012] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ASTONE -v- CAT WELFARE SOCIETY [2012] WADC 152

CORAM: DAVIS DCJ

HEARD: 27 SEPTEMBER 2012

DELIVERED : 27 SEPTEMBER 2012

FILE NO/S: APP 67 of 2011

BETWEEN: PHILLIP ASTONE
Appellant
AND
CAT WELFARE SOCIETY
Respondent

Catchwords:

Appeal from Magistrates Court - Claim in Magistrates Court by employee against employer for damages for unfair dismissal - Defendant employer's application for summary judgment heard in absence of plaintiff employee - Judgment for defendant employer - Application by plaintiff employee to set aside judgment - Magistrate refused to set aside judgment - No error by magistrate - No jurisdiction in Magistrates Court to determine employee's claims for unfair dismissal or sexual discrimination

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 18

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Not applicable
Respondent: Mr M W Fatharly

Solicitors:

Appellant: No appearance
Respondent: Kott Gunning

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

Aboyne Pty Ltd v Dixon Homes Pty Ltd (1980) Qd R 142
Bednall v Wesley College [2005] WASC 101
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Coleman v Pearce [2005] WADC 62
Diaz v Schlumberger Australia Pty Ltd [No 2] [2011] WADC 135
Fusia Ltd v Neoside Pty Ltd [2005] WASC 228
VentureAxess Capital Ltd v RM Capital Pty Ltd [2005] WADC 128

DAVIS DCJ:
(This judgment has been delivered extemporaneously on 27 September 2012 and has been edited from the transcript).

The appellant, Mr Astone, has brought an appeal from a decision of Magistrate Hawkins made on 14 September 2011.
On that day, for detailed reasons which she delivered orally, Magistrate Hawkins dismissed an application by Mr Astone to set aside an earlier order she had made on 18 July 2011 dismissing Mr Astone's claim against the Cat Welfare Society Inc, the respondent in this appeal (which I shall refer to as CWS).
The background to this matter is as follows. Mr Astone was employed by CWS pursuant to a contract made in February 2009. It was an express term of this contract that the terms and conditions of his employment were as set out in the Animal Welfare Industry Award. Clause (5)(ii) of that award provides that the employment of any employee with less than one year's continuous service may be terminated by a notice period of one week or payment in lieu of that notice.
By letter dated 23 April 2009, CWS terminated Mr Astone's employment and paid him one week's pay and leave entitlements in lieu of notice.
On 30 November 2010, Mr Astone brought a claim in the Magistrate's Court against CWS claiming $35,386 on the grounds that his contract was terminated for unfair and discriminative reasons.
On 20 May 2011, CWS filed an application for summary judgment together with an affidavit in support sworn on 19 May 2011 by Kane Gregory Clifford Parker, a solicitor employed by the solicitors on the record for CWS. The grounds for the bringing of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WADC 152
Decision Date: 27 SEPTEMBER 2012

CaseChat Overview and Summary

The case of Astone v Cat Welfare Society involves an employee, Mr Astone, who brought a claim for unfair dismissal and sexual discrimination against his employer, Cat Welfare Society (CWS), in the Magistrates Court. Following an application by CWS for summary judgment, the magistrate found in favour of the employer, and subsequently, Mr Astone applied to set aside the judgment, which was refused. The matter has come to the District Court on appeal by Mr Astone. The central legal issues in this appeal are whether the magistrate made an error in law or fact, and whether there was a breach of natural justice, given that Mr Astone was not present at the hearing on 14 September 2011, which was the date set for the delivery of reasons. The appeal notice filed by Mr Astone did not comply with the relevant procedural rules, as it failed to provide particulars as to why the magistrate's decision was wrong in law or against the weight of the evidence. The court considered the possibility that Mr Astone's absence referred to either the hearing on 14 September 2011, as assumed by the appellant, or to the hearing on 18 July 2011, as assumed by CWS. The court found that regardless of which hearing was referred to, Mr Astone had been given a fair opportunity to present his case, including at the earlier hearing on 9 September 2011 and through written submissions. The magistrate had considered all relevant material, including Mr Astone's affidavits and oral submissions, before delivering her decision. The court concluded that the magistrate's decision was not made without Mr Astone having an opportunity to be heard, and there was no error or breach of natural justice.

The District Court found that the appeal was essentially a re-hearing of the evidence and arguments before the magistrate, and the court was required to determine whether there was a legal, factual, or discretionary error on the part of the primary decision maker. The court examined the material before the magistrate, including Mr Astone's affidavits, oral submissions, and written submissions, and concluded that there was no such error. The court further noted that the appeal notice did not specify why the magistrate's decision was wrong in law or against the weight of the evidence, and the court had no information to explain Mr Astone's statement that he was not present at the hearing on 14 September 2011. The court held that the appeal did not succeed because there was no error or breach of natural justice in the magistrate's decision, and the appeal notice did not comply with the procedural requirements. The court dismissed the appeal and affirmed the magistrate's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

This appeal is in the nature of a re-hearing. An appellate court hearing an appeal by way of a re-hearing, can exercise its appellate powers only if satisfied there was some legal, factual, or discretionary error on the part of the primary decision maker: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203. There is one ground to the appeal as set out in the notice of appeal filed by Mr Astone on 14 September 2011. It reads 'I was not present due to several reasons.' The appeal notice does not comply with the requirement in District Court Rules 2005 r 50(3). There are no particulars provided which set out or demonstrate that the magistrate's decision is against the weight of the evidence, nor does the appeal notice specify why the decision is wrong in law. In fact, I have no information to explain the statement in the appeal notice 'I was not present due to several reasons.' I have assumed that the reference to not being present refers to the hearing on 14 September 2011. In written submissions filed in this appeal by CWS, dated 17 September 2012, CWS has assumed that it relates to the hearing of 18 July 2011. I will therefore deal with both possibilities. Pursuant to s 40(4) of the Magistrates Court Civil Proceedings Act 2004, this court must decide the appeal on:(a)the material and evidence that were before the Magistrates Court; and(b)any other evidence that it gives leave to be admitted. Rule 50(1) of the District Court Rules 2005 is of similar effect, providing that the appeal must be by way of reconsideration of the evidence before the primary court unless the parties agree otherwise. Rule 5(2) and (3) provide that additional evidence must only be adduced with leave and such leave can only be granted if there are special grounds for doing so. There is no agreement or leave to adduce further evidence in this appeal. I have reviewed the material and evidence to which Magistrate Hawkins had regard and the transcript of the proceedings in the Magistrates Court. While Mr Astone was not present at the hearing on 14 September 2011, it is apparent from the material before me that he was given a reasonable opportunity to present his case at the earlier hearing on 9 September 2011 and again when he filed his written submissions on 13 September 2011. He was treated fairly. It could not be said that the orders which Magistrate Hawkins made on 14 September 2011 were made without Mr Astone first having an opportunity to be heard. The magistrate had read and had regard to his affidavit filed in opposition to CWS's summary judgment application, sworn 13 July 2011, and his later affidavit, filed on 2 September 2011, both of which dealt with the merits of his claim. She also heard his oral submissions on 9 September 2011 and received and read his written submissions of 13 September 2011, before she delivered her decision and reasons for it. It was not intended that either party would make any further submissions at the hearing on 14 September 2011. The purpose of the hearing on that day was for delivery of the magistrate's oral reasons for decision.