Chittleborough v Troy Group Pty Ltd - [2024] WASCA 22

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHITTLEBOROUGH -v- TROY GROUP PTY LTD [2024] WASCA 22
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   5 MARCH 2024
DELIVERED          :   5 MARCH 2024
PUBLISHED           :   7 MARCH 2024
FILE NO/S:   CACV 10 of 2024
BETWEEN:   GLENN CHITTLEBOROUGH
Appellant
AND
TROY GROUP PTY LTD
First Respondent
TROY SMSF PTY LTD AS TRUSTEE FOR THE TROY SUPERANNUATION FUND
Second Respondent
MARK ANTHONY AND GAIL ELAINE TROY as trustee for THE TROY FAMILY TRUST
Third Respondent
DELIA BREE TROY
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BLACK DCJ
File Number            :   CIV 4783 of 2018

Catchwords:

Appeal - Practice and procedure - Whether appeal notice presented for filing using the electronic case management system was formatted in a way required by the rules - Whether requirement for signature by a legal practitioner is satisfied by a signature in the name of a law firm or incorporated legal practice - Consequence of failure to comply with formatting and signature requirements of the rules

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1, O 12, O 67A
Supreme Court (Court of Appeal) Rules 2005 (WA), r 11, r 29

Result:

Direction that the appeal notice be accepted for filing given

Category: B

Representation:

Counsel:

Appellant	:	J C Yeldon
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance

Solicitors:

Appellant	:	Huggins Legal
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance

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

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
Frigger v Professional Services of Australia Pty Ltd [No 2] [2024] WASC 46
Nielsen v Capital Finance Australia Ltd [2014] QCA 139; [2014] 2 Qd R 459
Re application of Fourth South Melbourne Building Society (1883) 9 VLR (E) 54
Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150

REASONS OF THE COURT:

On 5 March 2024, we considered the question of whether the appeal notice in this appeal should be accepted for filing in light of the decision of the Supreme Court in Frigger v Professional Services of Australia Pty Ltd [No 2].[1]
[1] Frigger v Professional Services of Australia Pty Ltd [No 2] [2024] WASC 46.
The Court of Appeal registrar referred this question to the court under r 11(1)(a), read with r 11(3), of the Supreme Court (Court of Appeal) Rules 2005 (WA) (CoA Rules). We directed the Court of Appeal registrar to accept the appeal notice for…

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: [2024] WASCA 22
Decision Date

CaseChat Overview and Summary

In this appeal, the Court of Appeal considered whether an appeal notice should be accepted for filing in light of a decision in the Supreme Court that required the signature of a legal practitioner to be a manual signature. The Court of Appeal concluded that the appeal notice should be accepted for filing because the document was signed by a legal practitioner acting on behalf of the appellant, and the Court of Appeal did not accept the interpretation of the term 'legal practitioner' that was adopted in the earlier decision. In the alternative, the Court of Appeal concluded that the failure to comply with the requirement for the signature of a legal practitioner was an irregularity that did not nullify the proceedings. The Court of Appeal directed that the appeal notice in this case be accepted for filing.

Orders