Defendi v Chartstar Pty Ltd - [2011] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DEFENDI -v- CHARTSTAR PTY LTD (t/as COLETTI REFRIGERATION AND AIR CONDITIONING) [2011] WADC 42

CORAM: WAGER DCJ

HEARD: 2 MARCH 2011

DELIVERED : 23 MARCH 2011

FILE NO/S: APP 55 of 2010

BETWEEN: SILVANO DEFENDI
Appellant
AND
CHARTSTAR PTY LTD (t/as COLETTI REFRIGERATION AND AIR CONDITIONING)
Respondent

ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE PACKINGTON

Catchwords:

Minor case claim - Appeal from Magistrates Court - Out of time - Mandatory time limit - No power to extend time - No denial of natural justice

Legislation:

District Court Rules 2005, r 51(4)
Magistrates Court (Civil Proceedings) Act 2004, s 13, s 32, s 40

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr J T London
Respondent: Mr M S Crawford

Solicitors:

Appellant: McDonald Rudder
Respondent: Arns & Associates

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

Cameron v Cole (1944) 68 CLR 571
McKeon v Knapton [2009] WADC 170
Stead v State Government Insurance Commission (1986) 161 CLR 141
Wilson and Westpac Banking Corporation [2011] WADC 13

WAGER DCJ: By notice of appeal filed on 29 July 2010, the appellant Mr Defendi appeals against the decision of his Honour Magistrate Packington dated 5 July 2010 dismissing Mr Defendi's minor case matter brought pursuant to the Magistrates Court (Civil Proceedings) Act 2004 (the Act). Section 40 of the Act provides that an appeal from the Magistrates Court to the District Court must be commenced within 21 days after the date of judgment. The District Court received the notice of appeal on 29 July 2010, being three days beyond the 21 day period. The first issue to be determined is whether I have the discretion to extend the time in which to receive the appeal in this matter, or alternatively the discretion to alter the date shown on the notice of appeal to place it within the 21 day period.
In his affidavit sworn 15 September 2010 Mr Defendi deposed that the reason for the late filing of the appeal was that the copy of the magistrate's decision that he received was not dated and he therefore completed his notice of appeal with the date omitted. The District Court registry would not receive his notice of appeal because it did not contain the date of judgment. Mr Defendi deposed that he made numerous enquiries from 21 July 2010 through until 29 July 2010 with the Magistrates Court in Perth and the Magistrates Court in Midland and with various officers before receiving notification of the correct date of judgment. I accept that the notification came from a letter to Mr Defendi from his Honour Chief Magistrate Heath dated 27 July 2010 apologising that the reasons for the decision were forwarded without the date of decision being recorded. His Honour said:
I understand that the file has been returned to the Midland Court and it would appear that it was in transit when you made your enquiries to the Perth and Midland Registrys.
I have asked that the court records be updated to show that the decision was delivered on 5 July 2010.
There is no dispute that the date upon which the judgment was delivered was 5 July 2010.
There are no express provisions in the Act empowering a court to extend the time within which an appeal may be commenced. Rule 51(4) of the District Court Rules 2005 provides:
A notice of appeal must be filed and served within 21 days after the date of the appealable decision.
There is nothing in the District Court Rules to empower the court to extend the period of 21 days.
Recently, in the decision of Wilson and Westpac Banking Corporation [2011] WADC 13, Braddock DCJ considered the question of whether, on an appeal from the Magistrates Court that was out of time, the time limits set were mandatory or whether an extension of time could be granted.
Her Honour referred to the decision of Sweeney DCJ in McKeon v Knapton [2009] WADC 170 and said [16] – [21]:
The Bank relies upon the decision of McKeon v Knapton [2009] WADC 170. In that case, Sweeney DCJ considered the same issue in relation to an appeal from a Magistrates Court decision, arising out of a motor vehicle accident. Sweeney DCJ, having considered and contrasted various other appeal provisions in West Australian jurisdictions, including the Supreme Court (Court of Appeal) Rules 2005, the State Administrative Tribunal Act 2004 and the Criminal Injuries Compensation Act 2003 concluded that there was no power to extend time in relation to an appeal under s 40 of the Magistrates Court (Civil Proceedings) Act. [16]
Sweeney DCJ also considered a previous decision of this court in Wise & Anor v The Proprietors of Strata Plan 21513 [2008] WADC 80, in which Keen DCJ came to a contrary conclusion. I am not persuaded by the reasoning of Keen DCJ and respectfully agree with Sweeney DCJ, that the mandatory 21 day time limit is prescribed by the principal legislation. It is not a period provided by subordinate legislation, such as the rules of the Supreme Court or the District Court, authorising the filing of the appeal. The primary legislation both creates the right of appeal and prescribes its operation by time. This is in distinction to the provisions of the other jurisdictions previously referred to, which may contain express power to extend time, for example, the Criminal Appeals Act 2004, s 28(3). Alternatively, the time limits are provided in the subsidiary legislation, for example, the Supreme Court (Court of Appeal) Rules 2005, which provide:
Unless another written law expressly provides otherwise, any other appeal to the Court of Appeal must be commenced within 21 days after the decision being appealed. [17]
Those rules may be read in conjunction with r 5(4) and O 3 of the Rules of the Supreme Court 1971, which provide for extensions of time.
Sweeney DCJ was assisted in her consideration of the issue by the case of Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237, where the right of appeal was found in s 54 of the Government and Related Employees Appeal Tribunal Act 1980, which provided that in s 55(1):
An appeal under s 54 shall be made within 21 days after the date of the tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the Rules of the Supreme Court. [19]
Whilst reliance was sought to be placed by the appellants in that case on r 4(1) of the Rules of the Supreme Court of NSW, which provided for extension of time, the Court of Appeal found that Parliament had, by fixing a mandatory time limit, shown an intention contrary to the power to enlarge time contained within the rules and that s 55 of the Act was mandatory. [20]
The provision of a statutory right of appeal, the placing of the time limit within the primary legislation, and the failure to make any express provision for the extension of time, in conjunction with that time limit, leads to the conclusion that there is no right of appeal after 21 days have elapsed. [21]
I have also considered the judgment of Keen DCJ in the matter of Wise v The Proprietors of Strata Plan 21513. I agree with the reasons delivered by Braddock DCJ and of Sweeney DCJ in McKeon v Knapton [2009] WADC 170. I do not have discretion to extend the 21 day period.
Counsel for Mr Defendi submits that I should exercise a discretion to backdate the date of filing of the notice of appeal. Counsel submits that it would have been open to Mr Defendi to make up a date simply to have the document received by the court within a 21 day period. Such a course would be totally inappropriate and there is no suggestion that Mr Defendi would ever conduct himself in this manner. The notice of appeal was stamped on 29 July 2010 once it was received by the District Court registry having been completed accurately by Mr Defendi. The document was not received by the court on 21 July 2010. The date of filing will remain 29 July 2010. For the reasons that I have outlined, I am constrained by s 40(3)(a) of the Act. I would therefore strike out Mr Defendi's appeal.
However, if I am incorrect in relation to the mandatory time limit or in relation to the date of filing of the notice of appeal then I make the following observations in relation to Mr Defendi's ground of appeal.

Appellant's ground of appeal

On 16 November 2010, Deputy Registrar Hewitt in chambers ordered that the grounds of appeal in this matter be amended to read
the conduct of the trial was such as to deny the appellant a proper opportunity to advance his case and as such constituted a breach of natural justice.
The amended appeal ground is consistent with s 32(3) of the Act that provides in respect of an appeal from a minor case matter that an available ground is:
(b)that in dealing with the minor case there was a denial of natural justice.

The minor case claim

Mr Defendi had built a very large house in Mundaring that contained 18 rooms. The house was designed by an architect in Italy and a detailed air‑conditioning plan was also designed in Italy consistent with using equipment manufactured in Italy. However, the Italian air‑conditioning equipment manufacturer did not carry on business in Australia. Mr Defendi was therefore advised to use air‑conditioning equipment that could be purchased and serviced in Australia and was advised specifically to use equipment manufactured by the Japanese company Daikin. Mr Coletti who is the director of the respondent company had the contract to supply and install the air‑conditioning in accordance with Mr Defendi's plans as amended and was contracted to use equipment supplied by Daikin. At the hearing before the magistrate, the parties disputed the origin and nature of changes to the original plans. The Italian plan had writing on it in italian and Mr Defendi asserted that the Italian plan, together with the additional notes in italian, was the document upon which the contract between the parties was based.
Mr Colletti said that the air‑conditioning system had been installed in accordance with the Australian standards and that plans relevant to Daikin installation were the basis of the agreement between the parties. The plans referred to by Mr Coletti did not have any additional notes on them in either italian or english. Mr Colletti argued that he was unaware of the notes in Italian and that they did not form part of the contract. Further, he argued that given that the contract was an Australian contract it should have been in english. The contract he argued was the Daikin plan not the Italian plan.
Mr Colletti installed the Daikin systems in accordance with the Australian standards and to a level that was satisfactory for a residential property. At the request of Mr Defendi, Mr Colletti then made changes to the installation that included the removal of fibreglass and the installation of polyurethane.
Mr Defendi asserted that the completed works did not reflect the agreement between the parties and subsequently engaged Mr Dowd from the company Project Air Conditioning Pty Ltd to modify the work performed by Mr Coletti at a cost of $4,917. This sum together with interest is the amount that Mr Defendi claims should be paid by Mr Coletti.
Evidence was led at the hearing that the work carried out by Mr Coletti met with Daikin's specifications and standards. Ultimately, the issue to be determined at trial was whether the original Italian plan with handwritten notes in Italian was the basis of the contract between the parties (requiring the use of polyurethane and the installation of sheet metal channelling to support the ducting).
No evidence was led of a translation of the Italian notes on the original Italian plan. At [14] – [16] of his decision, his Honour Magistrate Packington said:
14.Various versions of the plans were tendered in evidence. I note that the plan provided to Daikin in the first place and tendered through Mr Pike contained no such notes (referring to the handwritten notes in Italian).
15.One of the plans (Italian plan) has had attached to it, helpfully, English translation of the notes. I have no evidence as to when, and by whom, those translations were affixed.
16.I am unable to be satisfied that Mr Defendi has established, on the balance of probabilities, or at all, that the notes for what little they are worth, formed a part of the agreement between him and Mr Coletti.
The hearing of this matter took place on four separate dates over a period that spanned 11 months. Although the hearing did not run for a full day on any of the dates and an interpreter was required by Mr Defendi, the hearing was still lengthy for a minor case claim matter and comprised of a total of 132 transcript pages.
Mr Defendi's original grounds of appeal were:
The respondent did not carry out the installation as it was commissioned of him. He was given clear, unequivocal and detailed information in the formal drawings given to him, and all of the content was also revised and confirmed verbally with him. The respondent was urged repeatedly to correct the inadequacies in the installation in order to conform it to the requirements of the drawings he had received, accepted and agreed to, but he demonstrated complete disinterest and refusal to do same. Further to the letter written to him on 7 November 2003 and also the numerous phone calls, all of which he ignored, I decided on 19/8/2004 to finally get the work rectified and properly completed in accordance with all he correct requirements that had been stated and wanted.
Counsel for the respondent wrote to Mr Defendi by letter dated 13 August 2010 alerting him to s 32(3) of the Act in respect of grounds of appeal against a judgment in a minor case. Mr Defendi subsequently wrote to counsel for the respondent by letter dated 20 August 2010 setting out six listed points relevant to his grounds of appeal. Mr Defendi also filed an affidavit sworn 24 February 2011 in support of his ground of appeal.

Denial of natural justice

In Cameron v Cole (1944) 68 CLR 571, 589, Rich J said:
It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or a charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled ex debito justitiae to have any determination which affects and set aside.
…
In such a case there has been no valid trial at all.
Birmingham DCJ reviewed the principals of natural justice in the context of an appeal from a Magistrates Court minor claim in the decision of Rankilor v Circuit Travel Pty Ltd [2010] WADC 170. At [19] Birmingham DCJ said:
The law does not impose on the court the impossible task of ensuring that a party to the proceedings takes the best advantage of the opportunity to which he or she is entitled, however not withstanding the degree of informality in the proceedings, it is important to note that those provisions of the Act do not detract from the fundamental requirement that the court is to accord natural justice to the party appearing before it by giving them a reasonable opportunity to present their respective cases.
Natural justice requires that a litigant be given a reasonable opportunity to present his case. The ability of a self represented litigant to present his case is different from that of a litigant represented by counsel. In Rankilor v Circuit Travel Pty Ltd Birmingham DCJ at [70] summarised the principles that had been identified in previous decisions in relation to the position of a litigant in person. His Honour said:
The principles identified by their Honours can be summarised as follows:
1.The duty of a trial judge to assist the litigant in person will vary and depends on the litigant, the nature of the case and the litigant's intelligence and understanding of the case.
2.The duty to assist in criminal proceedings is likely to be more extensive than that imposed on a Judge hearing civil proceedings.
3.The advice and assistance which a litigant in person ought to receive from the court is limited to what is necessary to reduce, so far as possible, the disadvantage he or she will ordinarily suffer when face by a lawyer and to prevent destruction from the traps to which our adversary procedures offer to the unwary and untutored.
4.A trial Judge should not confer upon an unrepresented litigant advantages which, if he were represented, he would not have. But the Court should be careful to ensure that the unrepresented party has not, because of a lack of legal skill, failed to claim rights or put forward arguments which otherwise he might have done.
5.Although the trial Judge is bound to supply some advice and assistance to an unrepresented litigant, the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation.
6.The boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial.
I adopt his Honour's summary.
The issue therefore is whether Mr Defendi was given a reasonable opportunity to present his case at trial.

Ground of Appeal

Counsel for Mr Defendi argued that Mr Defendi was denied natural justice because the magistrate made an order for the trial procedure that included Mr Defendi having a right to make a closing statement, however, later denied Mr Defendi from having this opportunity. On 30 June 2009 at the commencement of the hearing, the magistrate said to the parties at ts 3 ‑ 4:
His Honour: Would either of you like me to explain the procedure for the hearing?
Defendi, Mr: Yes, please.
Colletti, Mr:   Yes, thanks.
His Honour:   The claimant presumably will give evidence or he will call other people to give evidence, and as each witness finishes giving their evidence you can cross examine them; ask them questions. Then when the claimant has finished calling his witnesses, then you can give evidence and you can call witnesses, and he can ask them questions, and at the end you can both – having returned to your places at the bar table sum up and tell me what I should make of all the evidence. Do you have any questions while that's being translated?
Colletti, Mr:   No, I think I have got it fairly clear, your Honour.
His Honour then proceeds to make an order for witnesses to remain out of court until called upon to give their evidence and asks Mr Defendi if he is going to give evidence. The hearing then proceeds.
At the end of the trial on 31 May 2010 following cross‑examination of the respondent's witness Mr Pike, Mr Defendi says to his Honour through the interpreter as ts 34:
He said he got it – as we need to go now, I believe the element you have should be enough for you to make your mind.
His Honour: I think I should, and I 'm not going to keep you here while a give a decision, which you will have to translate. I will send out a decision in writing to save the parties coming back. I assume you didn't have any re-examination of Mr Pike.
Colletti, Mr: No your Honour.
His Honour: Good.
Counsel for Mr Defendi submits that the failure of the magistrate to enquire at this time as to whether Mr Defendi wanted to give a closing address was a denial of natural justice because the trial had spread over four days with lengthy breaks and the two last listed days had been taken up with the defendant's case, therefore Mr Defendi's case was not fresh in his Honour's mind. It is also submitted that the facts of the case and the evidence presented were complicated because there were seven different exhibits or documents marked for identification or tendered as plans and both parties were unrepresented and did not always present their cases in the most logical manner. Counsel submits that Mr Defendi's use of an interpreter added to the complexity.

There is no requirement that a minor case hearing proceed in a particular way. Section 13 of the Act states:
(1)In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring -
(a)that cases are dealt with efficiently, economically and expeditiously;
(b)so far as is practicable that the parties are on an equal footing;
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
The information provided by the magistrate to the parties at the commencement of the hearing did not constitute an order of the court. His Honour was advising the parties of the way in which the matter could proceed and the rights that they could exercise if they chose to. The magistrate's comments were appropriate given the nature of the proceedings and the fact that both parties were self‑represented but they did not bind the court or the parties to follow a particular course.
On 31 May 2010 Mr Defendi advised the magistrate that 'the element should be enough for his Honour to make a decision'. The magistrate did not suggest that the matter would be adjourned to a further date and made it clear that he would send the parties his decision.
At the end of the hearing on 31 May 2010 it was open to Mr Defendi to raise that he wished to make a closing submission. Mr Defendi had not only been advised of general procedure by his Honour but had been involved in other court matters before (as is apparent from the respondent's list of authorities that refers to other matters that had previously been brought by Mr Defendi). Mr Defendi had some familiarity with court procedures.
It is apparent from the magistrate's decision that he did not require further explanation of the seven different exhibits of documents that had been marked for identification or tendered and that he had considered the claimant's evidence from the first three days of hearing because his Honour referred to the matters raised in the first three days in the course of his judgment.
Mr Defendi was not deprived of the possibility of a successful outcome; Stead v State Government Insurance Commission (1986) 161 CLR 141.
I now turn to the matters raised by Mr Defendi in his letter to counsel for the respondent dated 15 September 2010. Mr Defendi said at pars 1 and 2:
The magistrate refused to hear the testimony of the three witnesses that had come for the hearing on 31 May 2010. I had called them precisely to be able to clear up some important points in my defence.
One of the witnesses, Richard Dowd, had been called by me to this hearing specifically because in the previous hearing held on 12 April 2010 he had repeatedly asked the Magistrate to be excused as he had to leave urgently and therefore I had not been able to finish my cross‑examination and still had to ask them crucially important questions regarding his deposition and this is why I had called him as a witness.
Mr Defendi closed his case on 12 April 2010. The respondent then commenced his case and called his first witness, Mr Dowd.
Mr Defendi then cross‑examined Mr Dowd (ts 24 – 29) and completed the cross‑examination of Mr Dowd as follows (ts 29):
Defendi, Mr:    Just one thing please ….
His Honour:     Okay.
Defendi, Mr:    … and then I will let you go …
(Mr Defendi then asked Mr Dowd a final question).
On the final day of hearing being 31 May 2010 after the respondent had closed its case, Mr Defendi had the following exchange with the magistrate at ts 34:
Interpreter:       He is saying he has got another small thing also, only three minutes, your Honour.
Defendi, Mr:    Really, three minutes.
His Honour:     Sorry.
Interpreter:       To point something else out. It will only take three minutes.
His Honour:     Yes.
Defendi, Mr:    The witness that Mr Coletti has called, the person that had six ….
His Honour:     Mr Dowd?
Defendi, Mr:    That has been called. The reason why he had left last time is because he had to go to a funeral.
His Honour:     Yes.
Defendi, Mr:    So he needed to go and there was no drawings. I would have asked him a very simple question.
His Honour:     Well …
Defendi, Mr:    I would have asked him if according to the drawings that he had, how he would have done the job to start with and if he had found – if he had been given a photo – we're talking about Italian, not – translation. He would have requested or asked a translation of those four lines that were part of the project and that they were part itself of the project. He professionally would have wanted a translation.
His Honour:     Well, alright. Thank you. I don't want you driving too fast. You take care.
Interpreter:       Yes, I will.
His Honour:     Thank you.
At 5.25 pm the matter was adjourned accordingly (ts 34 and ts 35).
The magistrate was familiar with all of the evidence that had been led during the four days of hearing. Mr Defendi had closed his case one and half months prior to raising this matter with his Honour. Mr Dowd was a witness called by the respondent who had been excused from further attendance at the hearing.
Mr Dowd's opinion as to whether or not Mr Dowd would have obtained a translation is of no relevance to the actions of Mr Coletti nor to the issues to be determined by the magistrate. Mr Defendi was not proposing to put an expert translation of the words on the plan before the court. Mr Defendi's request was to recall Mr Dowd to be asked about the procedures that may have been favoured by Mr Dowd as project engineer for Project Airconditioning Pty Ltd in the event that Mr Dowd had received the Italian plan and been contracted to follow that plan (ts 19). Ultimately, in any event the magistrate did not accept that the Italian plan formed the basis for the contact.
The fact that the magistrate did not allow Mr Defendi to re‑open his case to recall the respondent's witness, Mr Dowd does not constitute a denial of natural justice.
Counsel for Mr Defendi also submits that Mr Defendi should have been allowed to re‑open his case on the 12 April 2010 by calling Mr Coletti's parents. Mr Defendi deposed in his affidavit sworn 24 February 2011 that he had summonsed Mr Colletti's parents to attend court on 31 May 2010. On that day Mr Defendi's matter was called up by the magistrate prior to the recommencement of the hearing out of courtesy to the parties so that the magistrate could advise the parties that there would be some delay in commencing the hearing. Mr Colletti asked his Honour whether his parents were required and his Honour indicated that the parents could leave.
It is hardly surprising that the magistrate did not realise that Mr Defendi had summonsed Mr Colletti's parents. Mr Defendi had closed his case one and a half months earlier and had not indicated that he wished to re‑open the case. Mr Defendi deposed in his affidavit sworn 24 February 2011 that he wanted to ask Mr Colletti's parents:
a.Whether they speak and understand italian.
b.Whether they ever spoke italian to Mr Colletti and whether he responded indicating he understood italian.
c.Whether they were aware Mr Colletti had attended an air‑conditioning course in Italian.
The point raised at hearing by Mr Defendi in relation to the Italian plan related to Mr Colletti's ability to read technical italian as it relates to air‑conditioning installation. Whether Mr Colletti's parents spoke or understood italian is irrelevant.
Further, whether it appeared to Mr Colletti's parents that Mr Colletti understood italian when spoken to by them is irrelevant. There is no suggestion that Mr Colletti's parents ever accompanied him to an air‑conditioning course in Italy. Evidence from Mr Colletti's parents on these issues would have been inadmissible.
In any event the magistrate did not accept that the Italian plan comprised the basis of the contract between the parties. Even if Mr Defendi had made an application to re‑open his case in order to call Mr Colletti's parents as witnesses there is no reason why the magistrate would have allowed the application. The issue does not disclose a denial of natural justice.
Mr Defendi's fourth point raised in the letter dated 15 September 2010 is:
At 5.30 pm after Mr Pike had given evidence, the magistrate said that the hearing had been going on for too long and that we were out of normal time and the court rooms had to be closed. He said that the interpreter also had to leave to pick up her children from school and therefore he did not want to hear any more in regard to the case and in this way he prevented me from being able to defend myself from the accusations and also more importantly, being able to present my conclusive documentary proof against the evidence that had been given towards the end.
I have carefully read the transcript of proceedings from 31 May 2010. Mr Defendi had cross‑examined Mr Pike at length (ts 29 – 34). Mr Defendi through the interpreter stated at ts 34:
He said he got it – as we need to go now, I believe the element you have should be enough for you to make your mind.
Mr Defendi's point four does not raise a denial of natural justice.
The fifth point raised by Mr Defendi in the letter dated 15 September 2010 is:
During the course of the proceedings, the magistrate constantly allowed the defendant to talk about all kinds of irrelevant information which was not at all pertinent to the case, such as matters to do with payments or other personal disputes during the period of installation.
The magistrate did not focus on the specific matter of the case which was solely to find if the defendant had, or had not, carried out the instalment of the air conditioning according to the absolutely clear and unequivocal specifications detailed in the drawings given to him for the work (and also verbally revised and confirmed with him personally), or indeed the defendant did not register a contract for the works as required by law.
Both parties were self‑represented at the hearing of a minor case claim. On occasion both raised matters that were not relevant to the issues to be determined. The magistrate was required to hear from both parties in order to determine what was relevant and what was irrelevant. His Honour specifically stated in his reasons for decision at [7]:
For the purposes of this case, nothing turns on the fact that Mr Coletti was approximately $9,000 out of pocket (his evidence in that regard was uncontradicted). He has not counterclaimed for that amount.
His Honour then determined that he was unable to be satisfied that the notes formed a part of the agreement between Mr Defendi and Mr Colletti. The fifth point raised by Mr Defendi does not disclose a denial of natural justice.
Mr Defendi's sixth point set out in the letter dated 15 September 2010 is:
The magistrate, being diverted onto other aspects, also failed to make and [sic] Order regarding the other subject of the dispute brought against the defendant, namely that the defendant hand over the two service manuals that he had arbitrarily kept from me, the claimant, as well as the replacement of the three broken lids on top of the Daikin generators that the defendant had broken during the installation and that had also been the subject of the claim made against him.
Mr Defendi does not raise the issues of the service manuals or broken lids as issues to be determined by the magistrate. At ts 15 on 21 September 2009, Mr Defendi is asked by his Honour:
His Honour: Mr Defendi, do you have much more evidence to give the court?
Defendi, Mr: Two events, one minute each. It's more of a declaration to clarify – on a correction made by Mr Coletti on the system.
Mr Defendi does not proceed to give evidence in relation to service manuals or broken lids.
Further, I note that the description of the minor case claim filed in this matter and dated 13 February 2008 was for:
Claim for reimbursement of money spent on conforming the installation to what had been requested in the original specifications and drawings supplied for the work.
Amount claimed - $4,917 plus interest at 6% per annum from the date that the rectification work was carried out being 19 August 2004 until today's date, amounting to $1,114.91 attached:
(a)project airconditioning agreement dated 19/8/2004
(b)statement report dated 7/11/2003
The description of the claim does not include a request for service manuals nor does it refer to broken lids. The only reference to broken lids arises from Mr Defendi's notes dated 13 February 2008 in respect of problems that Mr Defendi himself identified in the installation.
Mr Defendi's sixth point does not raise any issues relevant to a denial of natural justice.
For the reasons that I have outlined I would have dismissed this appeal had it been brought in time. Further, if leave for an extension of time within which to appeal was legislatively possible, I would have refused the application for leave to extend the appeal time period.