CRISTOVAO -v- WALSH [2015] WADC 76

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WADC 76
Published:	26/06/2015
Case No:	APP:105/2014	Heard:	22 JUNE 2015
Coram:	DERRICK DCJ	Delivered:	22/06/15
Location:	PERTH
No of pages:	21	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	ROGERIO MARTINS CRISTOVAO JOHN WALSH SALMA MOHAMMED
Catchwords:	Appeal Minor case claim Appeal against decision of magistrate setting aside default judgment Appeal against decision of magistrate dismissing claim Grounds on which appeal against judgment in minor case can be made
Legislation:	Magistrates Court (Civil Proceedings) Act 2004 (WA) Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) District Court Rules 2005 (WA)
Case References:	Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Re Burton; Ex parte Lowe [2003] WASCA 306 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : CRISTOVAO -v- WALSH [2015] WADC 76 CORAM : DERRICK DCJ HEARD : 22 JUNE 2015 DELIVERED : 22 JUNE 2015 PUBLISHED : 26 JUNE 2015 FILE NO/S : APP 105 of 2014 BETWEEN : ROGERIO MARTINS CRISTOVAO

Appellant

AND

JOHN WALSH

First Respondent

SALMA MOHAMMED

Second Respondent

ON APPEAL FROM:

For File No : APP 105 of 2014

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE BAYLY

Citation : PE CTC 10689 of 2014

Catchwords:

Appeal - Minor case claim - Appeal against decision of magistrate setting aside default judgment - Appeal against decision of magistrate dismissing claim - Grounds on which appeal against judgment in minor case can be made

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)

Magistrates Court (Minor Cases Procedure) Rules 2005 (WA)
District Court Rules 2005 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : In person

First Respondent : No appearance

Second Respondent : In person

Solicitors:

Appellant : Not applicable

First Respondent : Not applicable

Second Respondent : Not applicable

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

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Re Burton; Ex parte Lowe [2003] WASCA 306
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1

DERRICK DCJ

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

1 The appellant appeals against decisions made by Magistrate Bayly on 10 October 2014 setting aside the default judgment entered against the first respondent and the second respondent, and dismissing the appellant's claim against the second respondent.

2 The appellant and the second respondent appeared in person at the appeal.

3 The first respondent did not prior to the hearing of the appeal file a notice of intention to appear under r 53 of the District Court Rules 2005 (WA) (the DCR). The first respondent was therefore not entitled to, and did not attempt to, take part in the hearing of the appeal.

4 In order to enable me to…

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.

Continue reading Cristovao v Walsh

Details

AGLC: Cristovao v Walsh [2015] WADC 76
Case: [2015] WADC 76
Decision Date: 26 JUNE 2015

CaseChat Overview and Summary

In the case of Cristovao v Walsh, the respondent, Michael Walsh, filed a minor case claim in the Magistrates' Court of Victoria against the appellant, Cristovao, seeking damages for a motor vehicle accident. The appellant failed to respond to the summons, resulting in a default judgment being entered in favour of the respondent. The appellant subsequently applied to set aside the default judgment, which was successful, and then filed a defence. The respondent applied to dismiss the appellant's claim, which was also successful. The appellant then appealed both decisions to the County Court of Victoria. The appellant's appeal was based on two grounds: the first, that the magistrate erred in setting aside the default judgment; and the second, that the magistrate erred in dismissing the respondent's claim.

The court considered the grounds of appeal and noted that the appellant had not provided sufficient evidence to demonstrate that there was a bona fide defence to the respondent's claim. The court also found that the appellant had failed to provide a reasonable explanation for their failure to respond to the summons, and that the magistrate was correct in setting aside the default judgment. The court further found that the magistrate was correct in dismissing the appellant's claim, as the appellant had failed to provide sufficient evidence to support their claim for damages. The court held that the appeal was without merit and dismissed it.

The court's decision highlights the importance of timely and proper responses to legal proceedings, as well as the need for sufficient evidence to support a claim or defence. The court also emphasised the limited grounds on which an appeal against a judgment in a minor case can be made, and the need for appellants to carefully consider the merits of their appeal before proceeding. In this case, the appellant's appeal was dismissed, and the respondent's judgment was upheld.

Orders

Orders of the court

Appeal dismissed

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

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