Austin v GR Carpenter and RA Carpenter t/as Carpenter Cabinets
[2021] WADC 48
•26 MAY 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: AUSTIN -v- GR CARPENTER & RA CARPENTER t/as CARPENTER CABINETS [2021] WADC 48
CORAM: RUSSELL DCJ
HEARD: 5 MARCH 2021
DELIVERED : 26 MAY 2021
PUBLISHED : 26 MAY 2021
FILE NO/S: APP 66 of 2020
BETWEEN: DAVID BERNARD AUSTIN
Appellant
AND
GR CARPENTER & RA CARPENTER t/as CARPENTER CABINETS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MALLEY
File Number : ARM/CTC/1656/2019
Catchwords:
Magistrates Court appeal - Minor case claim - Whether denial of natural justice - Procedural fairness - Turns on own facts
Legislation:
District Court of Western Australia Act 1969 (WA), s 64
Magistrates Court (Civil Proceedings) Act 2005 (WA), s 27, s 29, s 32, s 40, s 43
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Not applicable |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Buttarelli v Perpetual Ltd [2013] WASCA 254
Cameron v Cole (1944) HCA 5; (1944) 68 CLR 571
Defendi v Szigligeti [2019] WASCA 115
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Nobarani v Mariconte [2018] HCA 36; (2018) 269 CLR 236
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Rowe v Stoltze [2013] WASCA 92
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Wilson v Dodo Services Pty Ltd [2018] WADC 159
RUSSELL DCJ:
Introduction
This is an appeal from a decision of his Honour Magistrate Malley in a consumer/trader minor case claim in the Armadale Magistrates Court made on 9 September 2020.
The appellant, Mr David Austin, engaged the respondent, GR Carpenter & RA Carpenter t/as Carpenter Cabinets, to supply and install cabinets and benchtops in Mr Austin's bathroom and laundry at his home in Nedlands.
The cabinets and benchtops were installed in April 2019. There is no issue with the work done in the laundry. The parties are in dispute in respect of the work done in the bathroom. Mr Austin was dissatisfied with the quality of the work. He paid a deposit of $1,113.90 but has not paid Carpenter Cabinets' invoice for the balance of $2,970.40.
On 7 October 2019, Carpenter Cabinets issued a minor case claim in the Magistrates Court to recover payment of its unpaid invoice in the amount of $2,970.40 and the court fee of $142.20. Mr Austin did not file a counterclaim.
Carpenter Cabinets initially obtained judgment in default. That judgment was subsequently set aside and the action proceeded to a minor case trial before his Honour Magistrate Malley on 9 September 2020.
On 9 September 2020, the magistrate ordered that judgment be entered for Carpenter Cabinets in the sum of $1,670 plus costs of $71 (being half the court fee). The judgment sum of $1,670 was for money owed by Mr Austin for the supply and installation of the bathroom cabinets and bench top after deduction of $1,300, as an allowance of $1,000 for the costs of repair and $300 for the cost of a report obtained by Mr Austin.
Mr Austin has appealed that decision on the grounds he was denied natural justice.
For the reasons that follow, the appeal should be and is dismissed.
The appeal to this court
Pursuant to s 40(2) of the Magistrates Court (Civil Proceedings) Act 2005 (WA) (MCCP Act) an appeal from a judgment of the Magistrates Court in a minor case is subject to s 32 of the MCCP Act.
Section 32(3)(b) of the MCCP Act provides, relevantly, that an appeal against a judgment in a minor case may be made only on the grounds that there has been a denial of natural justice. There is no right of appeal on the merits.[1]
[1] Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [55] (Newnes JA, with whom Pullin JA agreed generally, and Buss JA agreed on this issue).
Where an appeal is brought under s 32(3) of the MCCP Act, pt 7 of the MCCP Act applies, which deals with appeals generally.
An appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so.[2]
[2] MCCP Act, s 40(3).
The time for commencing the appeal notice expired on 30 September 2020. Mr Austin filed his appeal notice on 6 October 2020, six days after the time for commencing the appeal had expired.
Mr Austin explained in his affidavit sworn on 6 October 2020 and at the hearing of the appeal that he tried to file his appeal notice electronically while away from Perth but was unable to do so because of technology issues. He filed his appeal notice personally at the registry on his return to Perth.
There is no evidence to suggest that the late filing of the appeal notice and granting leave to Mr Austin to proceed with his appeal will cause any prejudice to Carpenter Cabinets. The delay is short and has been explained. Mr Austin was given leave to proceed with his appeal at the hearing of the appeal.
On 30 October 2020, Carpenter Cabinets filed a notice of respondent's intention stating that it did not intend to take part in the appeal and will accept any order made by the court in the appeal other than as to costs.
An amended appeal notice was filed on 29 January 2021 pursuant to an order made on 1 December 2020.
The hearing of the appeal is not a rehearing. Section 40(4)(b) of the MCCP Act requires the court to proceed on the basis of the record and considering any new evidence which it may give leave to be adduced. No new evidence was sought to be adduced in the appeal. I have therefore determined the appeal on the evidence that was before the magistrate.
The appeal court may ascertain what material or evidence was before the lower court in any manner it considers is sufficient.[3]
[3] MCCP Act, s 43(2).
Grounds of appeal and issues for determination
Mr Austin contends, relevantly, that the magistrate denied him natural justice by:
1.Failing to take cognisance of the findings and conclusions contained in the Building Consultancy & Inspection (BCI) expert's report provided to the court.
2.Cutting short Mr Austin's cross‑examination of Mr Carpenter during the hearing on 9 September 2020.
The grounds of appeal raise the following issues for determination:
1.Was there a denial of natural justice (procedural fairness) because the magistrate:
(a)did not take into account the findings and conclusions contained in the BCI report; and
(b)cut short Mr Austin's cross‑examination of Mr Carpenter during the hearing on 9 September 2020?
2.If there was any denial of natural justice, did it make any difference to the outcome of the minor case trial?
3.What final orders are appropriate?
Was there a denial of natural justice?
The term natural justice is not defined in the MCCP Act. Accordingly, the usual meaning of that term applies. The term natural justice generally refers to the requirement that a party to proceedings be given a fair hearing. This normally requires that each party be given a reasonable opportunity to present their case or to answer the case against them, by evidence and argument.[4]
[4] See Cameron v Cole (1944) HCA 5; (1944) 68 CLR 571, 589 (Rich J); International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54] (French J); see also [88] (Gummow & Bell JJ), [141] - [146] (Heydon J). See also Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed).
The right of appeal is based on the failure to afford a fair hearing. That is whether there has been a lack of procedural fairness and not whether there is any argument that the magistrate made an error of law, or of fact or in the exercise of his discretion.
What is necessary to satisfy the requirement that a party be given a reasonable opportunity to present their case cannot be determined in the abstract but only in the context of the particular case under review.[5]
[5] Rankilor v Circuit Travel Pty Ltd [57].
As observed by the Court of Appeal in Defendi v Szigligeti,[6]the application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern it. As such, and as stated in Rankilor v Circuit Travel Pty Ltd,[7] the requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court.
[6] Defendi v Szigligeti [2019] WASCA 115 [48].
[7] Rankilor [58].
The MCCP Act provides that the primary object of the court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties.[8] The court may, at any stage in the proceedings, do all things and take such steps as it considers to be appropriate to achieve that primary object.[9]
[8] MCCP Act, s 27(1).
[9] MCCP Act, s 27(2).
In dealing with a minor case the court is to act with as little formality as the court thinks is reasonable.[10] When dealing with a minor case the court is not bound by the rules or practices as to evidence but may inform itself on any matter in such manner as it thinks fit.[11]
[10] MCCP Act, s 29(3).
[11] MCCP Act, s 29(4).
The Magistrates Court is a busy court and often, as was the case here, the value of the claim is very small and the parties are unrepresented. The intention of the minor case procedures is to allow flexibility in the way in which such cases are conducted with a view to resolving them without resort to contested litigation and without great expense.
Having regard to the matters I have outlined in [24] - [28] above and having reviewed the transcript of the hearing before the magistrate,[12] there is no reasonable basis for Mr Austin to contend that he was denied natural justice. To the contrary, the transcript clearly reveals that the magistrate conducted the proceedings fairly and impartially and Mr Austin was given a reasonable opportunity to present his case and to answer, by evidence and argument, the case against him.
[12] Transcript, Armadale CTC 1656 of 2019, 9 September 2020 (Magistrates Court ts).
I will deal with the issue raised by each ground of appeal in turn.
Was there any denial of natural justice because the magistrate did not take into account the findings and conclusions contained in the BCI report?
At the hearing before the magistrate and at the hearing of the appeal, Mr Austin submitted that the work undertaken by Carpenter Cabinets in relation to the bathroom cabinets and the benchtop in the bathroom was defective and would cost Mr Austin money to have repaired.
Mr Austin produced and relied upon a report by BCI to support his case that the work was defective. It is clear from the transcript of the hearing before the magistrate that the magistrate received the BCI report and took its contents into account.[13] The magistrate was critical of the report and the lack of evidence presented as to the cost of any rectification work.[14]
[13] Magistrates Court ts, ts 21.
[14]Magistrates Court ts, ts 22, ts 23, ts 28.
The BCI report refers to Mr Austin as the client and to the client's brief/request being to inspect and comment on the installation of the bathroom vanity and stone benchtop at Mr Austin's address in Nedlands. The date of inspection is recorded as 12 March 2020.
The writer of the report has identified a number of issues with the installation and recommended that the contractor return to site and rectify the issues noted, which he says would involve replacing the stone benchtop to ensure the manufacture and installation of the bathroom fitout is of an acceptable standard and in accordance with good building practice.
However, the BCI report does not identify the cost of rectification. There was no evidence before the magistrate[15] or before me in the appeal as to what particular rectification works are required or as to the cost of such works.
[15] Magistrates Court ts, ts 22 - ts 28.
In the circumstances, in my view, the magistrate proceeded to make what he considered to be a fair resolution of the matter,[16] resulting in a deduction of $1,300 from Carpenter Cabinets' claim and a further deduction of $300 in respect of the cost of the BCI report. He also ordered that Mr Austin pay half of the court fee.
[16] Magistrates Court ts, ts 28.
I am not satisfied that there was any denial of natural justice on the basis that the magistrate did not take into account the findings and conclusions contained in the BCI report. To the contrary, it is clear that the magistrate did take the report into account.
Was there any denial of natural justice because the magistrate cut short Mr Austin's cross‑examination of Mr Carpenter?
The right to challenge by cross‑examination a witness whose evidence is adverse, in important respects, to the case a party wishes to present is an aspect of the obligation to accord natural justice. However, a magistrate has a wide discretionary power in any proceedings to contain cross‑examination within proper limits and to disallow repetitious, prolix or unnecessary questions.[17]
[17] See Wilson v Dodo Services Pty Ltd [2018] WADC 159 [49] (Gething DCJ) and the authorities there referred to.
It is evident from the transcript of the hearing before the magistrate that Mr Austin was given the opportunity to, and did, cross‑examine Mr Carpenter at length.[18] The questions asked by Mr Austin in cross‑examination were on occasion long‑winded, argumentative and irrelevant.
[18]Magistrates Court ts, ts 13 - ts 21.
On one occasion, early in the proceedings, the magistrate stopped Mr Austin questioning Mr Carpenter about his truthfulness in saying he had made an offer to settle the proceedings, on the basis that whether the respondent had made an offer to settle was irrelevant to the magistrate's determination of the matter.
The only relevant issue that questioning could have gone to, was to Mr Carpenter's credibility in other evidence that was given. As it was conceded that Mr Carpenter did not do the work personally and had not inspected it, his credibility on the issue in dispute, whether there were any defects in the work, was largely irrelevant.
In any event, the magistrate did not stop the questioning on that point immediately, but after it had persisted for some time. It is clear from the transcript that this was because he felt that the hearing was getting away from the points of dispute between the parties.
The magistrate did not cut short any relevant cross‑examination in such a way as to deny Mr Austin procedural fairness. I am not satisfied that Mr Austin was denied natural justice. To the contrary, I consider that the magistrate gave Mr Austin considerable latitude in asking questions of Mr Carpenter in cross‑examination. Mr Austin was given ample opportunity to cross‑examine Mr Carpenter, and did so with vigour.
If there was any denial of natural justice, did it make any difference to the outcome of the minor case trial?
I have found that there was no denial of procedural fairness. As such, it is not necessary for me to deal with this issue.
However, for completeness, it should be noted that, even where a failure to afford procedural fairness is identified, not every denial of procedural fairness will result in a grant of relief. An appellant court will not order a rehearing if the denial of procedural fairness would not have made any difference to the outcome of the previous hearing or would make no difference at a new hearing. Such an order would only be made when the error has deprived the party of the possibility of a successful outcome.[19]
[19] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145, 147 (Judgment of the Court); Nobarani v Mariconte [2018] HCA 36; (2018) 269 CLR 236 [38]; Buttarelli v Perpetual Ltd [2013] WASCA 254 [34] (Reasons of the Court); Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [112] (Murphy JA, with whom Pullin & Buss JJA agreed).
If I had found that there had been any denial of procedural fairness, it would not have made any difference to the outcome. The appeal would still have been without merit and it would have been futile to set aside the judgment and order a new hearing. That is because, the fact remains that there was and is no evidence before the court as to the particular rectification works required and as to the costs of undertaking those works.
What final orders are appropriate?
For the reasons I have set out above, the appeal should be and is dismissed.
Costs would ordinarily be awarded to the successful party.[20] As Carpenter Cabinets took no part in the appeal, the appropriate order is that there be no order as to costs.
[20] District Court of Western Australia Act 1969 (WA) s 64; Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
I therefore make the following orders:
1.The appeal is dismissed.
2.No order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AD
Associate to Judge Russell
26 MAY 2021
0
12
3