Cristovao v John Horton & Associates - [2012] WASCA 12

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CRISTOVAO -v- JOHN HORTON & ASSOCIATES [2012] WASCA 12

CORAM: NEWNES JA
MURPHY JA

HEARD: 6 DECEMBER 2011

DELIVERED : 31 JANUARY 2012

FILE NO/S: CACV 99 of 2011

BETWEEN: ROGERIO MARTINS CRISTOVAO
Appellant
AND
JOHN HORTON & ASSOCIATES T/AS TAYLOR WOODGATE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :CURTHOYS DCJ
File No  :APP 14 of 2011

Catchwords:

Practice and procedure - Claim for $2,700 by appellant in Magistrates Court - Appeal against interlocutory decision - Appeal dismissed by District Court - Whether costs of appeal to Court of Appeal disproportionate - Magistrates Court (Civil Proceedings) Act 2004 (WA) s 43(3) - 'Nature of case' includes particular issue on appeal - Costs disproportionate to nature of case and to amount of claim - No injustice from absence of appellant at hearing of appeal to District Court - Result no different if appellant had attended - No miscarriage of justice if appeal dismissed - Magistrates Court (Civil Proceedings) Act 2004 (WA) s 43(4)(c)

Legislation:

Magistrates Court (Civil Proceedings) Act (WA) s 43(3), s 43(4)(c)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B W Ashdown

Solicitors:

Appellant: In person
Respondent: MGB Legal

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

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Defendi v Eden Hill Plasterers [2008] WASCA 269
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

JUDGMENT OF THE COURT: The respondent has applied for an order dismissing the appeal on the basis that none of the grounds of appeal has any reasonable prospect of succeeding and, alternatively, that the likely costs of the appeal would be disproportionate to the nature of the case. For the reasons which follow, we would dismiss the appeal.

Background

The appeal has its origins in proceedings in the Magistrates Court. On 25 August 2010, the appellant commenced proceedings against the respondent in that court claiming the sum of $2,700. That was the amount which the appellant had paid to the respondent, a handwriting expert, to conduct an examination of a document to ascertain whether certain parts of it had been forged. The appellant alleged that the respondent had failed to carry out the examination in accordance with the appellant's instructions and the appellant sought to recover the amount he had paid for the examination. We should say that the respondent denied the claim and said that the work had been properly carried out.
In the course of the proceedings, the respondent was ordered to provide discovery of documents. It was subsequently ordered to provide further discovery and did so by an affidavit dated…

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] WASCA 12
Decision Date: 31 JANUARY 2012

CaseChat Overview and Summary

The respondent has applied for an order dismissing the appeal on the basis that none of the grounds of appeal has any reasonable prospect of succeeding and, alternatively, that the likely costs of the appeal would be disproportionate to the nature of the case. The appeal has its origins in proceedings in the Magistrates Court, in which the appellant claimed $2,700 from the respondent, a handwriting expert, for an examination of a document that he alleged was not carried out in accordance with his instructions. The respondent denied the claim and the appellant sought further and better particulars of the documents listed by the respondent in response to an order for discovery. The magistrate dismissed the application and the appellant appealed to the District Court. The legal issues before the court were whether the magistrate erred in law in dismissing the application for further and better particulars, and whether the costs of the appeal to the Court of Appeal would be disproportionate to the nature of the case and the amount of the claim.

The court found that the magistrate's decision was not erroneous in law, and that the provision of the DVD was sufficient to comply with the order for discovery. The court also found that the likely costs of the appeal to the Court of Appeal were disproportionate to the nature of the case and the amount of the claim. The court held that the 'nature of case' includes the particular issue on appeal, and that the costs of the appeal were disproportionate to that issue. The court further held that there was no injustice from the absence of the appellant at the hearing of the appeal to the District Court, and that the result would have been the same if the appellant had attended. The court also found that there was no miscarriage of justice if the appeal was dismissed.

The court dismissed the appeal and ordered that the costs of the appeal be paid by the appellant. The court held that the costs were disproportionate to the nature of the case and the amount of the claim, and that there was no miscarriage of justice if the appeal was dismissed. The court also held that the appellant's absence at the hearing of the appeal to the District Court did not result in any injustice, and that the result would have been the same if the appellant had attended. The court concluded that the appeal had no reasonable prospect of succeeding, and that the costs of the appeal to the Court of Appeal were disproportionate to the nature of the case and the amount of the claim.

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

JUDGMENT OF THE COURT: The respondent has applied for an order dismissing the appeal on the basis that none of the grounds of appeal has any reasonable prospect of succeeding and, alternatively, that the likely costs of the appeal would be disproportionate to the nature of the case. For the reasons which follow, we would dismiss the appeal. The appeal has its origins in proceedings in the Magistrates Court. On 25 August 2010, the appellant commenced proceedings against the respondent in that court claiming the sum of $2,700. That was the amount which the appellant had paid to the respondent, a handwriting expert, to conduct an examination of a document to ascertain whether certain parts of it had been forged. The appellant alleged that the respondent had failed to carry out the examination in accordance with the appellant's instructions and the appellant sought to recover the amount he had paid for the examination. We should say that the respondent denied the claim and said that the work had been properly carried out. In the course of the proceedings, the respondent was ordered to provide discovery of documents. It was subsequently ordered to provide further discovery and did so by an affidavit dated 8 December 2010. That list contained a DVD which the respondent said contained all of the documents in its possession which were relevant to the action. On 5 January 2011, the appellant filed an application in the Magistrates Court seeking what he described as 'further and better particulars' of the respondent's list of documents. The appellant's complaint, in substance, was that the respondent had failed to itemise in its list of documents the individual documents contained on the DVD. An affidavit of the appellant, sworn on 4 January 2011, was filed in support of the application. In that affidavit, the appellant, relevantly, described the events leading up to the application and attached a letter, dated 14 December 2010, which he had written to the respondent asserting, among other things, that the respondent was required by the rules of court to list each document and image on the DVD by number, date and description. In his affidavit the appellant reiterated that it was the respondent's obligation to particularise each document in that way. The appellant did not, however, suggest that he would suffer prejudice in the absence of such a list. The appellant's application came on for hearing in the Magistrates Court before Mr P Cockram SM on 28 January 2011. His Honour found that the provision of the DVD sufficiently complied with the order for discovery. He observed that on such an application the court had to bear in mind the principle of proportionality, noting that the claim was for the sum of $2,700. His Honour said he was not persuaded that it was necessary for the contents of the DVD to be further itemised in a separate list of documents and dismissed the application. The appellant appealed to the District Court against that decision. The appellant's grounds of appeal were as follows:1.[The magistrate] has erred at law by holding [the appellant] the opportunity to seek further and better particulars of [respondent's] listed index documents in the [respondent's] Form 36 First Schedule [sic].2.[The magistrate] has erred at law by holding that there will be no injustice or prejudice against [the appellant] if [the appellant's] Application for better particulars for [respondent's] listed of documents index be appropriated made [sic].3.[The magistrate] erred at law when his honour 'mix-up' and misdirected himself and interpreted that those unidentified Images, unnamed documents and reports not be identified would not cause injustice and prejudice against [appellant].4.[The magistrate] erred at law in unfairness manner and in detriment against [the appellant] by not considering Supreme Court Act 1935 Rules of the Supreme Court 1972 O 26 r 8A(1)(iii) and (b).

Ratio Decidendi

Legal Principle Established

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