Gladwin-Grove v Zinzan (WA) Pty Ltd - [2019] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   GLADWIN-GROVE -v- ZINZAN (WA) PTY LTD [2019] WADC 68
CORAM:   DAVIS DCJ
HEARD:   25 MARCH 2019
DELIVERED          :   17 MAY 2019
FILE NO/S:   APP 106 of 2018
BETWEEN:   CHANTELLE MAREE GLADWIN-GROVE
Appellant
AND
ZINZAN (WA) PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DARGE
File Number             :   PER/GCLM/1426/17

Catchwords:

Appeal from Magistrates Court - Application by appellant to adduce further evidence - General principles on an application for leave to adduce further evidence in an appeal

Legislation:

District Court Rules 2005, r 50
Magistrates Court (Civil Proceedings) Act 2004, s 40

Result:

Application allowed

Representation:

Counsel:

Appellant	:	Ms A A Cooper
Respondent	:	In Person

Solicitors:

Appellant	:	Murcia Pestell Hillard
Respondent	:	Not applicable

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

Devereaux-Warnes v Hall [No 2] [2006] WASCA 268
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241
Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
Prow Pty Ltd v Commissioner for Police [2012] WASC 363
Sammut v AVM Holdings Pty Ltd [2011] WASC 194
Saunders v The Public Trustee [2015] WASCA 203
Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252
Shilkin v Taylor [2011] WASCA 255
Veneziano Coffee Roasters WA Pty Ltd v Healthy Nut Café Pty Ltd [2018] WASC 363
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

DAVIS DCJ:

On 22 October 2018 the appellant, Ms Gladwin-Grove, filed an appeal from a decision of Magistrate Darge of the Magistrates Court, delivered on 1 October 2018, dismissing her application for security for costs from the respondent company, Zinzan (WA) Pty Ltd (Zinzan). That company was the plaintiff or claimant in the Magistrates Court proceedings.
Ms Gladwin-Grove has filed an application in this appeal for leave to adduce further evidence, and leave to amend her grounds of appeal.
For the reasons which follow, I allow the application.

Background to this appeal

Zinzan is a private company with a share capital of $100. Its sole director and shareholder is Mr Ian Hugh Sargent.
Zinzan operated a real estate business known as WA Prestige Properties and Mr Sargent was the principal of the business, with each of Zinzan and Mr Sargent holding licenses under the Real Estate and Business Agents Act 1978.
On 19 April 2017 Zinzan filed a general procedure claim in the Magistrates Court, claiming a selling fee from Ms Gladwin-Grove, payable pursuant to a written listing authority, following the sale of her Subiaco property.
Ms Gladwin-Grove filed a defence on 18 May 2017. In essence, the defence was that she had sold the property as a result of an unsolicited approach from a representative of the eventual purchaser and Zinzan had not…

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.

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Details

Case: [2019] WADC 68
Decision Date: 17 MAY 2019

CaseChat Overview and Summary

The appellant, Gladwin-Grove, sought to appeal against a decision of the Magistrates Court of Western Australia, which had dismissed his application to have a statement from a witness included in the evidence of the case. The respondent, Zinzan (WA) Pty Ltd, opposed the appeal on the grounds that the evidence was not admissible and that the appellant had not shown any sufficient reason for not producing it earlier. The central issue before the court was whether the appellant should be allowed to adduce further evidence in his appeal.

The court considered the general principles governing applications for leave to adduce further evidence in an appeal. It noted that such applications are generally disfavored, and the party seeking to adduce new evidence must demonstrate exceptional circumstances justifying the departure from the usual rule. The court emphasised that the burden of proof rested on the appellant to establish that the evidence was material, relevant, and could not have been obtained earlier with reasonable diligence. The court also highlighted the importance of maintaining the integrity and efficiency of the judicial process, which necessitated a cautious approach to admitting new evidence.

After carefully considering the arguments presented by both parties, the court found that the appellant had not discharged the onus of proving that the evidence in question was essential and could not have been obtained earlier. The court observed that the appellant's delay in seeking to introduce the new evidence was not satisfactorily explained, and there was no indication that the evidence would have altered the outcome of the case. Consequently, the court dismissed the appeal, upholding the decision of the Magistrates Court and denying the appellant's application to adduce further evidence.

Orders