Del Borrello v Sneddon - [2014] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DEL BORRELLO -v- SNEDDON [2014] WADC 49

CORAM: BIRMINGHAM QC DCJ

HEARD: 4 APRIL 2014

DELIVERED : 4 APRIL 2014

PUBLISHED : 9 APRIL 2014

FILE NO/S: APP 82 of 2013

BETWEEN: LORETO DEL BORRELLO
Appellant
AND
JOHN SNEDDON
Respondent

Catchwords:

Appeal - Magistrates Court (Civil Proceedings) Act 2004 - Extension of time to appeal - Minor claim - Requirement for breach of natural justice - No breach - Absence of merit - Extension refused

Legislation:

Magistrates Court (Civil Proceedings) Act 2004

Result:

Extension of time to appeal refused

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: Not applicable
Respondent: Not applicable

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

Cameron v Cole (1944) 68 CLR 571
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Taylor v Taylor (1979) 143 CLR 1

BIRMINGHAM QC DCJ:
[This judgment has been delivered extemporaneously on 4 April 2014 and has been edited from the transcript.]

This matter comes before me by way of an application for leave to appeal the decision of the learned magistrate, his Honour Magistrate Cockram in the minor cases division in the Magistrates Court in Perth where the plaintiff appellant, Mr Del Borrello, claimed $4,168.87 from the defendant respondent in respect of work done.
The matter was heard by Magistrate Cockram on 18 June 2013. At the completion of the hearing, the learned magistrate delivered his decision extempore dismissing the appellant claim. It is from that decision that the appellant now seeks to appeal.
The time for commencing any appeal expired on 7 July 2013 and accordingly, an extension of time to appeal is required. The application for an extension was supported by the affidavit of Mr Del Borrello, however does not address the reasons for the delay in any meaningful way.
Where an extension of time to appeal is sought, the four factors to consider are first, the length of the delay, second, the reason for the delay, third, whether there is an arguable case and fourthly, the extent of any prejudice suffered by the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196.
It is convenient to deal with the application for extension of time and the appeal at the same time.
The appellant did not seek to commence his appeal until some three months after the time had expired. In the context of a requirement that the appeal is to be commenced within 21 days, it is a significant period of delay.
The appellant attributed his delay to his unfamiliarity with the process and the proceedings. The respondent, Mr Sneddon, readily conceded that the period of delay had not caused him any prejudice. In the circumstances I accept the appellant's explanation for the delay and would not refuse to extend the time to appeal on that basis. The critical issue for determination is whether there is any merit in the appeal.
Pursuant to s 32(3) of the Magistrate Court (Civil Proceedings) Act 2004 (the Act), the right to appeal from an adverse decision in a minor case claim other than for a jurisdictional matter is limited to circumstances where there has been a denial of natural justice in dealing with the case. The appeal is not in the nature of a rehearing of the matter on the merits save to the extent that they are relevant for considering whether or not the appellant has been denied natural justice.
Natural justice does not require an inflexible application of a fixed body of rules but rather requires fairness in all the circumstances including the nature of the jurisdiction, rules under which the tribunal was acting, the subject matter that was being dealt with and the statutory provisions governing the power or jurisdiction being exercised. They are not inflexible and they vary from case to case. It requires fairness in all the circumstances: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 311 ‑ 312 (Gibbs CJ).
The fundamental principle of natural justice applicable to all courts whether superior courts or inferior courts is that a person against whom a claim is made or a charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle is not observed, the person affected by that decision has been denied a hearing. There is in essence no valid trial at all: Cameron v Cole (1944) 68 CLR 571, 589 per Rich J; Taylor v Taylor (1979) 143 CLR 1, 4.
Minor cases dealt with by the Magistrates Court are claims of not more than $10,000. The Act contains specific provisions to enable minor cases to be dealt with expeditiously, informally and hopefully with some finality. Section 27 of the Act provides that the primary objective of the court in dealing with matters in a minor case is to attempt to bring the parties to a settlement acceptable to the parties. The Act further provides that the court is to act with as little formality as the court thinks reasonable and is not governed by formal rules of evidence. The court may inform itself on any matter in such a manner as it thinks fit. Importantly, the parties are not entitled to be represented before the court except with the leave of the court: s 30 of the Act.
The emphasis on minor cases being dealt with expeditiously and with finality is highlighted by the fact that there is no general right of appeal from the magistrate's decision. The relevant duty is to ensure that each party is given a reasonable opportunity to present his or her case.
The law does not impose on a court the impossible task of ensuring that a party to proceedings takes the best advantage of the opportunity which he or she is entitled. However, notwithstanding the degree of informality, it is important to note that the Act does not detract from the fundamental requirement that the court is to accord natural justice to the party appearing and give them every reasonable opportunity to present their respective cases.
In this case I have been provided with and read a copy of the transcript of the proceedings conducted before the learned magistrate. Whilst the appellant was unable to direct my attention to any specific portion of the transcript to which objection was taken, I have undertaken a review of the hearing in full.
It is apparent that at the commencement of the proceedings, the learned magistrate first ascertained from the appellant the nature of his claim. He further ascertained from the respondent the basis of his alleged counterclaim. The learned magistrate quite properly identified that the respondent's counterclaim was misconceived insofar as it was being maintained on behalf of an unrelated party, Urbanize Architects Pty Ltd, and dismissed the counterclaim.
The claim pursued by appellant was for work done by him to the benefit of the respondent in the amount claimed of $4,168.87. It was the respondent's defence to that claim that the cost of such work was to be offset against architectural work performed for the appellant by Urbanize Architects Pty Ltd.
The learned magistrate identified that the issue to be resolved was whether in fact there was an agreement that the other works provided by Urbanize Architects Pty Ltd, through the respondent and his partner, Mr Maxwell to the appellant, could be offset against the amount claimed by the appellant from the respondent.
The learned magistrate further identified that the burden of proving such set off rested with the respondent, and accordingly, required the respondent to present his case first.
The respondent and his partner, Mr Maxwell, gave evidence and were cross‑examined by the appellant as to the existence or otherwise of the agreement alleged.
I note that such cross‑examination by the appellant was directed to whether or not the conversations occurred. His cross‑examination was directed to presenting his account of the agreement and seeking to undermine that maintained by the respondent and Mr Maxwell.
At the completion of the evidence of the respondent's case, the appellant was invited to give evidence and did so. The learned magistrate asked the appellant some questions to assist in the presentation of his evidence and received into evidence the appellant's invoice, exhibit 3, as proof of the work done.
The appellant was cross‑examined by Mr Maxwell.
At the completion of the evidence, both parties addressed the learned magistrate. Thereafter the learned magistrate adjourned briefly to consider his decision.
Upon resumption the learned magistrate found for the respondent and dismissed the appellant's case. The learned magistrate preferred the evidence of Mr Maxwell and the respondent to that of the appellant and found that there was, in essence, an agreement between the parties that the amount of $4,168.87 claimed by the appellant could be offset against the fees to be charged by Urbanise Architects Pty Ltd for work done for the appellant. The respondent having made good his defence, the appellant's claim was dismissed.
The matter that comes before me on an application for extension of time to commence any appeal must be strictly assessed in accordance with the jurisdiction that I have as a judge dealing with this matter on appeal. The question for me is whether the decision below can be disturbed on the basis that the appellant was denied natural justice, that is to say, that he did not receive a fair trial.
In my view, having perused the transcript of the proceedings and the manner in which the court below proceeded, I am satisfied that there was no failure on the part of the magistrate to afford the appellant every opportunity to present his case. The matter had a full hearing and each party had the opportunity to present their case, to cross‑examine and to tender such documents as they had or wished to tender in support of that case. Furthermore, the findings of the learned magistrate were based on the evidence and his decision is founded upon the preference of the evidence of the respondent and Mr Maxwell over that of the appellant. The acceptance of such evidence is seemingly unremarkable and was open on the evidence before the magistrate for the reasons stated by him.
I am satisfied that the appellant was given and received a fair hearing. In essence, the appellant simply does not accept the learned magistrate's decision and feels a sense of injustice insofar as the decision was not in his favour. Whilst the appellant might be disappointed in the decision and honestly believe that it does not accord with his testimony and his understanding of the facts, the determination of the matter in such manner does not give rise to a breach of natural justice. Each of the parties had the opportunity to present their case and did so. The learned magistrate heard their case and decided the matter on the evidence before him. There is no suggestion whatsoever that the learned magistrate conduct of the hearing was partial or biased.
In the circumstances, I consider that the proposed appeal is wholly without merit insofar as there is no natural justice point identified in the way in which the proceedings below were conducted and the judgment entered.
It follows that the application to extend time to commence the appeal must be refused.