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Doble v Chaffey Services Pty Ltd

Doble v Chaffey Services Pty Ltd

Case [2023] WASCA 180 14 December 2023

Civil Litigation & Procedure

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DOBLE -v- CHAFFEY SERVICES PTY LTD [2023] WASCA 180
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   7 DECEMBER 2023
DELIVERED          :   14 DECEMBER 2023
FILE NO/S:   CACV 115 of 2023
BETWEEN:   MICHAEL PAUL DOBLE
First Appellant
KIRAHNLEY PTY LTD trading as KTR SERVICES
Second Appellant
AND
CHAFFEY SERVICES PTY LTD as trustee for CATABY SERVICES TRUST, trading as CATABY SERVICES
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: CHAFFEY SERVICES PTY LTD AS TRUSTEE FOR CATABY SERVICES TRUST, T/A CATABY SERVICES -v- DOBLE [No 4] [2023] WASC 361
File Number            :   CIV 1854 of 2020

Catchwords:

Appeals - Practice and procedure - Application to permanently stay respondent's cross‑appeal as an abuse of process - Where respondent previously commenced and discontinued an appeal against orders the subject of the present cross‑appeal - Whether a litigant can bring second or subsequent appeal against same orders

Legislation:

Supreme Court Act 1935 (WA), s 58, s 59
Supreme Court (Court of Appeal) Rules 2005 (WA), r 31A, r 59

Result:

Cross‑appeal dismissed as incompetent

Category: A

Representation:

Counsel:

First Appellant	:	D H Solomon
Second Appellant	:	D H Solomon
Respondent	:	B Kremer SC

Solicitors:

First Appellant	:	Solomon Brothers
Second Appellant	:	Solomon Brothers
Respondent	:	Bennett

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

Amaca Pty Ltd v Hannell [No 2] [2011] WASCA 232; (2011) 42 WAR 224
Bridges v The Queen (1998) 20 WAR 59
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
Chaffey Services Pty Ltd v Doble [No 4] [2023] WASC 361
Chang v Legal Profession Complaints Committee [2021] WASCA 86
Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369
Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
El-Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 742; (2004) 138 FCR 338
Hastie v The Queen [1981] WAR 365
JS v The State of Western Australia [2014] WASCA 177
Nguyen v The State of Western Australia [No 2] [2019] WASCA 5
Ponnambalam v the State of Western Australia [2015] WASCA 185
R v Bell (1987) 8 NSWLR 311
The Owners of the Cargo of the 'Kronprinz' v The Owners of the 'Kronprinz' (1887) 12 App Cas 256
WACF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 234
Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

JUDGMENT OF THE COURT:

Overview

The appellants' application in an appeal dated 8 November 2023 before the court raises the following question: can a respondent commence and proceed with a cross-appeal against orders of the primary court where the respondent has earlier commenced and discontinued an appeal against those same orders?
In the circumstances of…

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 Doble v Chaffey Services Pty Ltd

Details

AGLC: Doble v Chaffey Services Pty Ltd [2023] WASCA 180
Case: [2023] WASCA 180
Decision Date

CaseChat Overview and Summary

The appeal in Doble v Chaffey Services Pty Ltd was heard by the Court of Appeal of the Supreme Court of Western Australia. The case involved a dispute between the appellants, Michael Paul Doble and Kirahnley Pty Ltd trading as KTR Services, and the respondent, Chaffey Services Pty Ltd as trustee for Cataby Services Trust, trading as Cataby Services. The appellants sought an order to permanently stay the respondent's cross-appeal, arguing that it constituted an abuse of process. The respondent had previously initiated and discontinued an appeal against the same orders now being challenged in the cross-appeal. The central legal issue was whether a litigant could bring a second or subsequent appeal against the same orders. The court held that the statutory provisions and rules governing appeals in Western Australia do not permit multiple appeals against the same orders. Once a right of appeal is exercised, it is exhausted, and no further appeal may be invoked. The court found that the respondent's cross-appeal was incompetent and dismissed it. The court also noted that while proceedings may constitute an abuse of process if they are clearly doomed to fail, this was not a case of unjustifiable oppression or bringing the administration of justice into disrepute. Instead, the appropriate relief was to dismiss the cross-appeal as incompetent. The court's decision did not affect any potential applications by the respondent to withdraw or set aside the discontinuance notice in the earlier appeal.

Orders