Donabray Pty Ltd v Wardman

[2000] WASC 80

DONABRAY PTY LTD -v- WARDMAN & ANOR [2000] WASC 80

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 80
Case No:	CIV:1214/2000	Heard:	20 MARCH 2000
Coram:	MASTER BREDMEYER	Delivered:	29/03/00
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	DONABRAY PTY LTD (ACN 009 108 561) SIMON PETER WARDMAN PENNI LAVERNE WARDMAN
Catchwords:	Appeal Appeal lies from Building Disputes Committee to District Court Second appeal lies as of right from District Court to Full Court
Legislation:	District Court Act 1969 (WA), s 79(1), s 81 Builders' Registration Act 1939 (WA), s 41(4) Small Claims Tribunal Act 1974 (WA), s 18, s 19
Case References:	Nil Earl of Derby v Bury Improvement Commissioners (1869) LR 4 Ex 226 Kiely v Beneficial Finance Corp Ltd (1991) 6 WAR 521 Lall v 51-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 Maddren v Bell, unreported; FCt SCt of WA; Library No 980462; 17 August 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DONABRAY PTY LTD -v- WARDMAN & ANOR [2000] WASC 80 CORAM : MASTER BREDMEYER HEARD : 20 MARCH 2000 DELIVERED : 29 MARCH 2000 FILE NO/S : CIV 1214 of 2000 BETWEEN : DONABRAY PTY LTD (ACN 009 108 561)

Applicant

AND

SIMON PETER WARDMAN
PENNI LAVERNE WARDMAN
Respondents

Catchwords:

Appeal - Appeal lies from Building Disputes Committee to District Court - Second appeal lies as of right from District Court to Full Court

Legislation:

District Court Act 1969 (WA), s 79(1), s 81

Builders' Registration Act 1939 (WA), s 41(4)
Small Claims Tribunal Act 1974 (WA), s 18, s 19

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Applicant : Mr D L Ritchie
Respondents : Mr P W Nichols

Solicitors:

Applicant : E M Stanley & Co
Respondents : Black & Co

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

Case(s) also cited:

Earl of Derby v Bury Improvement Commissioners (1869) LR 4 Ex 226
Kiely v Beneficial Finance Corp Ltd (1991) 6 WAR 521
Lall v 51-55 Hall Street Pty Ltd [1978] 1 NSWLR 310
Maddren v Bell, unreported; FCt SCt of WA; Library No 980462; 17 August 1998

(Page 3)

1 MASTER BREDMEYER: This is an application by Donabray Pty Ltd ("the applicant") for leave to appeal against a decision of Blaxell DCJ on 4 February 2000. That Judge refused leave to extend the time to appeal against a decision of the Building Disputes Committee given on 24 March 1999. The present application is made under s 79(1)(b) of the District Court Act 1969 (WA). I quote:

"79. Appeal to the Full Court

(1) A party to an action or matter who is dissatisfied with -


(a) a final judgment, may appeal from that judgment to the Full Court constituted under the Supreme Court Act 1935;

(b) a judgment that is not a final judgment or an order remitting any action or matter from one court to another, may by leave of the Supreme Court or a Judge thereof, appeal to such Full Court,


notwithstanding that the action or matter to which the final judgment or judgment relates may have been brought in the Court by consent as provided in this Act."

2 The applicant's argument is that the Judge's decision was not a final one. It was an interlocutory one. It dealt with the question of an extension of time only. If the decision is an interlocutory one, leave can be granted if this Court is satisfied that the decision below is attended with sufficient doubt to justify the grant of leave and that a substantial injustice will be done if it remains unreversed: Seaman 63.0.23.

3 The respondent's argument is that s 79(1) of the District Court Act does not apply. The decision of Blaxell DCJ is a final one from which there is no appeal because of 41(4) of the Builders' Registration Act 1939 (WA). I quote:

"41(1) Subject to subsection (2), a party to proceedings before the Disputes Committee may appeal to the District Court against a decision of the Disputes Committee in the manner and in the time prescribed by rules made by the District Court.

(Page 4)

(2) An appeal does not lie under subsection (1) unless the Disputes Committee or the District Court gives leave to appeal.

(3) Without limiting the rules of court, where an appeal under this section has been commenced, or application has been made for leave to appeal, against a decision of the Disputes Committee, the District Court.


(a) may suspend the operation or effect of the decision until the appeal is determined or the application for leave to appeal is withdrawn or dismissed; and

(b) may revoke any such suspension.


(4) A decision of the District Court under this section is final.

(5) Where the District Court varies a decision of the Disputes Committee or substitutes a decision for that of the Disputes Committee, the decision of the District Court has effect for the purposes of this Act or the Home Building Contracts Act 1991 as if it were a decision of the Disputes Committee."

I could find no cases on the meaning of s 41 and none have been cited to me.

4 I do not agree with either argument. I consider the decision is a final one by s 41(4) of the Builders' Registration Act with an appeal lying, as of right, under s 79(1) of the District Court Act. The jurisdiction to hear an appeal is conferred on the District Court by s 41(1) of the Builders' Registration Act. The decision is final by subs (4) but, having said that, it is still a decision of the District Court and thus s 79(1) applies and an appeal lies as of right to the Full Court. I also consider, not that it is particularly relevant here but it is helpful by way of analogy, that certiorari also lies as of right against a judgment of the District Court Judge on appeal from the Building Disputes Committee. That is so by virtue of s 81 of the District Court Act.

5 Section 41(4) of the Builders' Registration Act does not say that there shall be no further appeal to the Full Court. Neither, for that matter, does it say that no certiorari or other prerogative writ will lie against a District Court decision on appeal from the Committee. Contrast the Builders'

(Page 5)

Registration Act in this regard with the Small Claims Tribunal Act 1974 (WA), s 18 and s 19, of which provide:

"18. Proceedings of tribunals final

A settlement or an order made by a Small Claims Tribunal shall be final and binding on all parties to the proceedings in which the settlement or order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the settlement or order is made, and no appeal shall lie in respect thereof. (Emphasis mine)

19. Immunity from judicial supervision

No writ of certiorari, or prohibition, or other prerogative writ shall issue, and no declaratory judgment shall be given in respect of a proceeding taken or to be taken by or before a Small Claims Tribunal or in respect of any order made therein unless the court before which such writ or judgment is sought is satisfied that the tribunal had or has no jurisdiction conferred by this Act to take the proceeding or that there has occurred therein a denial of natural justice to any party to the proceeding."

6 I should add that s 41 of the Builders' Registration Act was introduced by an amending Act No 60 of 1991. The Second Reading Speech to the amending Bill is silent on whether the appeal from the Disputes Committee to the District Court is meant to preclude a further appeal to the Full Court or not (1991 Parliamentary Debates 747 - 748).

7 I will dismiss this application because I consider leave is not required. The application for leave to appeal and the minute of notice of appeal are both dated 24 February. They were filed within the 21 day appeal period. I will direct that the minute of notice of appeal stand as the notice of appeal and I will direct the Registry staff to open a new appeal file.