| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GRANT -v- MANSOM [2013] WADC 53 CORAM : DEANE DCJ HEARD : 8 APRIL 2013 DELIVERED : 19 APRIL 2013 FILE NO/S : APP 107 of 2012 BETWEEN : GLEN GRANT Appellant
AND
SHARON MANSOM
First Respondent
MICHAEL MANSOM
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE J HAWKINS File No : CGLM 1015 of 2011 Catchwords: Application for extension of time in which to appeal from a decision in the Magistrates Court - Reasons for failure to file an appeal within time - Prospects of success of appeal - Whether prejudice to respondents if application granted
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Legislation: Magistrates Court (Civil Proceedings) Act 2004 Result: Application for extension of time in which to appeal dismissed
Representation: Counsel:
Appellant : Mr W L Meredith
First Respondent : Mr D A Ellis
Second Respondent : Mr D A Ellis
Solicitors:
Appellant : William Llewellyn Meredith
First Respondent : Dean A Ellis
Second Respondent : Dean A Ellis
Case(s) referred to in judgment(s):
Balfour v Balfour [1919] 2 KB 571
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gallo v Dawson [1990] HCA 30
Garrett v Nicholson (1999) 21 WAR 226
Ratnam v Cumarasamy [1964] 3 All ER 933
Skerritt v O'Keefe [1999] WASCA 183
Walker v Fares Rural Co Pty Ltd [2001] WADC 94
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1 DEANE DCJ: The background to this matter is that on 11 May 2011 the appellant filed a General Procedure Claim number GCLM 1015-2011 in the Joondalup Magistrates Court. The facts relevant to a summary of the claim are that in March 2010 the appellant was awarded approximately $250,000 in compensation for injuries suffered as a result of being involved in a motor vehicle accident some years prior to that date. He was in a de facto relationship with the daughter of the first and second respondents at the time the allegations relevant to his claim arose. That relationship ended acrimoniously in December 2010. In fact at trial when the daughter of the respondents gave evidence she said it ended on 24 December 2010.
2 The appellant alleged that during the course of that relationship, when he and his then partner were visiting and residing with the respondents in Western Australia, that both respondents borrowed monies from the appellant or put another way the appellant loaned them monies in the total amount of $10,900. 3 As evidence unfolded at trial it would appear that the appellant alleged he loaned both the respondents money for three distinct purposes being: 1. Payment for couches delivered to their premises whilst the appellant was present; 2. Payment for repairs to a Ford Falcon motor vehicle belonging to the respondents; and 3. Cash loans, which and as the evidence unfolded, allegedly related to monies for household expenses such as food, rent and payment of electricity bills. 4 The appellant claimed that in January 2011 he sought repayment of the monies he had loaned to the respondents and that the second respondent acknowledged the debt, but claimed hardship in his ability to repay the alleged loans. It was further alleged that the respondents both failed to pay or repay the debt within the agreed time period or at all. 5 It was alleged that the appellant and both respondents had entered into a verbal debt agreement which was agreed to be paid by 31 July 2010 and that as a result both respondents were now liable to repay the debt in accordance with the alleged agreement. In response the respondents alleged that the monies were gifted to them by the appellant, which he denied. They further alleged that the car repairs had to be carried out as a (Page 4)
result of an accident that the appellant had whilst driving the respondents' vehicle. The appellant however maintained that the repairs needed to be carried out as a result of an accident which occurred whilst the second respondent was driving the vehicle. 6 In the end result the appellant claimed repayment of the monies allegedly owed by the respondents to him in the amount of $10,900 in combination with costs of the action and interest on the sum claimed pursuant to s 36 of the Supreme Court Act 1935. 7 The matter came on for hearing by way of trial before her Honour Magistrate J Hawkins in the Joondalup Magistrates Court on 9 and 10 October 2012. Both the appellant and respondents were represented by counsel and both parties gave evidence as well as calling evidence on their respective behalves. The evidence at trial as revealed in the transcript was quite extensive. The learned magistrate heard closing submissions from counsel before reserving her decision. That decision in the form of detailed written reasons was delivered on 12 November 2012 and resulted in the appellant's claim being dismissed. The 21-day time limit for lodging an appeal expired on Monday 3 December 2012. The reasons for this will be discussed shortly. 8 At this hearing counsel for the appellant initially asserted that the notice of appeal was lodged four days out of time on Friday 7 December 2012. On further examination this would not appear to be entirely correct. It is the case that at around 4.00 pm on that day a notice of appeal was faxed to the District Court Registry along with credit card details with respect to the filing fee for the appeal. However given the time of day there was nobody available to process the details with respect to the filing fee and so the appeal was not formally filed, given no fees were paid on that date. Subsequently counsel for the appellant was notified of this and eventually on 21 December 2012 the appeal was filed and the necessary filing fee paid and so the appeal rather than being four days out of time was about 17 days out of time. The notice of appeal did not indicate that an extension of time was to be sought and it is conceded that this should have been done. On 12 February 2013 the appellant's appeal came before a deputy registrar of the District Court in chambers, who issued orders that the appeal be amended to include an application for an extension of time and that the application be listed for hearing on 8 April and further that the appellant was to file and serve any affidavit in support of the extension within 14 days and the respondent was to file and serve any affidavit in opposition within 14 days thereafter. On 28 February 2013 (Page 5)
the appellant filed an affidavit in support of the application for an extension of time in which to lodge the notice of appeal. 9 At this hearing it became evident that the appellant's affidavit was deficient in a number of respects in that it failed to refer to particular matters or supply information relevant to certain matters.
The appellant's affidavit 10 In his affidavit the appellant states that the primary reason for the late filing of the notice of appeal was due to the transcript of the proceedings before the Joondalup Magistrates Court being delayed in its production. It was said that it was very difficult to determine what the grounds of the appeal should be, based on memory and without the benefit of the transcript to which to refer. In addition the appellant deposes that at the time he was financially incapacitated and struggling to pay expenses and as a result it took him approximately two weeks to obtain the money for the filing fee. Annexed to the affidavit is a letter dated 20 December 2012 from the appellant's solicitor enclosing a cheque by way of filing fee in the sum of $313. Nonetheless the appellant asserts in his affidavit that it was always his intention to lodge an appeal as he firmly believed or believes that he has strong grounds on which to appeal. 11 Underpinning the issue of the application for an extension of time in which to appeal is the question as to fact of whether this court has the jurisdiction to determine such an issue. Pursuant to s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 an appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so. This was as a result of the Court's Legislation Amendment Bill 2012 which took effect on 30 January 2013 and which applies retrospectively to this current application. There is no issue therefore that this court has jurisdiction to determine whether or not leave should be granted in relation to the application for an extension of time in which to lodge the appeal. 12 The principles to be applied to an application to extend time to appeal are set out in Walker v Fares Rural Co Pty Ltd [2001] WADC 94 where Muller DCJ referred to an observation by McHugh J at 459 in Gallo v Dawson [1990] HCA 30 and these are essentially: (Page 6)
3. Whether any prejudice would be suffered by the respondent by reason of the granting of an extension of time. 13 The grant of an extension of time in which to appeal is not automatic and before such an application can succeed there must be material upon which the court can be satisfied that to refuse the application would lead to an injustice so the discretion is aimed very largely at enabling justice to be done between the parties. As was pointed out in Ratnam v Cumarasamy [1964] 3 All ER 933, 935: The rules of the court must prima facie be obeyed, and in order to justify a court extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. 14 An application for an extension of time requires consideration of the prospects of the appellant succeeding in the appeal. 15 It is common ground that the learned magistrate's decision was handed down on 12 November 2012. The appellant's affidavit does not refer to when he first read that decision or what discussions if any, he had regarding the matter, with his legal advisor following that time. The appellant's affidavit does not refer to when the transcript was first ordered, but at this hearing his counsel indicated to the court that he believed it was shortly after the delivery of the decision that the appellant attended the Joondalup Magistrates Court on about 14 November and ordered the transcript. Although there is no reference in the appellant's affidavit as to who paid for this, again at the hearing the suggestion from his counsel was that the appellant did so. 16 There is no evidence as to why the transcript was delayed in its production as asserted in the appellant's affidavit. It must be acknowledged however that it was a detailed hearing over the course of two days during which a number of witnesses were called and submissions were made. The transcript consists of 133 pages and taking into account the demands on transcription services for the courts, it is perhaps not surprising that this comparatively lengthy transcript took some time to prepare and produce. There is no evidence as to exactly when the transcript was finally received, although the appellant's affidavit of 26 February 2013 in par 4 states that the transcript was not received until very recently, whatever that may mean. 17 For reasons which are not entirely clear it seems that despite the absence of transcript, at about lunchtime on Friday 7 December 2012 (Page 7)
counsel for the appellant commenced to draft grounds of appeal contained in the document which he attempted to file by facsimile at 4.00 pm that afternoon. Notwithstanding the absence of transcript counsel for the appellant managed to draft in some detail 10 grounds of appeal which are reproduced below: 1. There has been a miscarriage of justice in that the learned Magistrate heavily relied upon the spending habits of the Claimant as a relevant factor to the ultimate determination when the spending habits of the Claimant were of limited relevance. 2. There has been a miscarriage of justice in that the learned Magistrate found that the Defendant, Mr Mansom's text messages acknowledging the debt were designed to prevent the Claimant from hounding him when her Honour should instead have found that the text messages which Mr Mansom admitted to have sent were an acknowledgment of the debt. 3. There has been a miscarriage of justice in that the learned Magistrate found that Mr Ronald Grant did not give a clear recollection of the conversation in which Mr Mansom admitted the debt and if the learned Magistrate had given proper weight to this evidence her Honour would have found that Mr Mansom did admit the debt to Mr Ronald Grant. 4. There has been a miscarriage of justice in that the learned Magistrate finding upon the authorities her Honour relies on in her reasons for decision that the monies loaned were a gift when in fact the evidence aligns with a finding that the circumstances indicated that the money was loaned and not gifted. 5. There has been a miscarriage of justice in that the learned Magistrate refused to allow the admission of the restraining order proceedings between the Defendant Mrs Mansom and the Claimant and Mr Ronald Grant when the learned Magistrate should have admitted the transcript of the restraining order proceedings in their entirety as they were highly relevant. 6. There has been a miscarriage of justice in that the learned Magistrate refused to consider the findings of her brother Magistrate Tarr who found the Defendant's in a matter also related to the same issues to be lacking in credibility when the learned Magistrate also ought to have had regard to those findings of her brother Magistrate. 7. There has been a miscarriage of justice in that the learned Magistrate relied upon the Claimant's poor recollection of who was kneeling when money was requested for couches to such an extent that it was her primary reasons for dismissing the claim when her (Page 8)
Honour should have not placed such weight on the Claimant's words, particularly in light of the fact that her Honour was made aware of the Claimant's extremely serious head injuries occasioned from his car accident from which the relevant compensation monies were obtained. 8. There has been a miscarriage of justice in that the learned Magistrate questioned the credibility of the Claimant due to the fact that he mentioned that written records had been kept of the debts in cross examination rather than in examination in chief. Her Honour erred in finding that just because evidence was given in cross examination rather than in examination in chief, that the Claimant was not credible. 9. There has been a miscarriage of justice in that the learned Magistrate questioned the sums and how they were loaned when in her judgment her Honour later justifies the Defendant retaining all of these monies in various ways. 10. There has been a miscarriage of justice in that the learned Magistrate discounted the evidence of Sarah Dunnett who testified that both Ms Webster and the Claimant advised her that they were expecting repayment of the loan when the learned Magistrate had no sound justification for discounting Ms Dunnett's evidence. 18 When one considers those grounds of appeal, particularly in the context of learned magistrate's reasons for decision, it appears that many of them simply take issue with her Honour's findings as to credibility and suggest that she should have made alternative findings. It should be noted that in the 21-day period following the delivery of the learned magistrate's decision the appellant and his counsel, although not having access to the transcript of the proceedings, did have the benefit of fairly detailed written reasons and the fact is that having attended the hearing the evidence no doubt would have been fairly fresh in their minds. In any event in his affidavit the appellant does not assert that there was any mistake or fault on the part of his counsel or legal adviser relevant to the delay in filing the appeal and so I accept the submission on behalf of the respondents that the lateness in filing the appeal was entirely the responsibility of the appellant. 19 In his submissions counsel for the appellant submitted that in addition to the delay in the production of transcript and the appellant's financial difficulties, at the time the appellant was questioning whether he would be able to afford the appeal. This does not appear from the appellant's affidavit because he positively asserts that he always intended to appeal the decision and there is no suggestion that the delay in part (Page 9)
related to him wishing to consider his position and the implications of appealing. 20 Although the appellant deposes in his affidavit that he was financially incapacitated at the time in terms of being able to afford the filing fee, there is absolutely no material contained in the affidavit or annexed to it which sets out or provides any detail as to the appellant's financial circumstances at the time. There is no detailed explanation as to why it took him some two weeks to obtain the money to pay the filing fee or how he did so or from where that money came. Further in the course of submissions counsel for the appellant advised the court that during the relevant period the appellant was actually employed. Whilst there was no reference to or no detail regarding the appellant's employment contained in his affidavit, as a matter of logic and commonsense it seems to me that if he was employed then he would have been in receipt of some form of income. Further counsel for the appellant in submissions to this court said that when the appellant was unsuccessful at first instance he or his parents had spent something in the order of $10,000 on legal fees. When questioned as to whether or not the appellant had approached his parents for funds in order to pay the filing fee for the appeal, counsel advised that the parents were of the opinion that it was entirely the appellant's responsibility to deal with the matter. 21 Even accepting that the appellant did attend the Joondalup Magistrates Court on 14 November, two days after the decision was handed down and ordered the transcript, there is no evidence whatsoever as to what, if any, steps were taken by either the appellant or his legal adviser following that to pursue the issue and obtain the transcript or at least to continue to make enquiries as to its production. Counsel advised the court that he had no file notes concerning what steps were taken, no copies of letters to the court inquiring about the production of transcript, or copies of faxes to the court nor were there any notes of any telephone calls made regarding the subject to the Joondalup Magistrates Court. When pressed all counsel for the appellant could tell this court was that 'I can say that we chased it up on a few occasions'. The appellant does not refer in his affidavit to anything that he personally did to pursue the issue of the production of transcript following his initial attendance at the Joondalup Magistrates Court on 14 November. 22 When counsel for the appellant was pressed as to the fact that on 7 December 2012, despite the absence of transcript he was able to draft a notice of appeal containing 10 fairly full grounds, he said he did that to preserve his client's interests. When asked why he did not take that action (Page 10)
within the 21-day period in order to preserve those interests, counsel indicated that he probably should have done so. 23 In the end however the appellant himself had attended and participated in the trial and had the benefit of the learned magistrate's reasons for decision. He deposes that he always intended to appeal the decision and believed he had firm grounds for doing so. That being the case I accept the submission on behalf of counsel for the respondents that one would expect the appellant in those circumstances, to have obtained timely legal advice, and to have caused a notice of appeal containing grounds prepared and filed in a timely manner. Further, particularly given that he apparently was in employment, one would expect that he would have arranged his finances so that he was in a position to pay the requisite filing fee of $313. This is not a case where the appellant suddenly became incapacitated or suffered some calamitous event preventing him from pursuing the appeal within time. Nor is it a case where he instructed his legal adviser to do certain things which were then not done. 24 The fact that counsel for the appellant was able to, without the benefit of transcript, draft 10 fairly detailed grounds of appeal on 7 December 2012 clearly demonstrates that it was not essential or vital to have the transcript of the proceedings in order to do so. No doubt this would have been desirable but there is no reason why, in the light of the material which was available, the grounds of appeal could have been drafted and the notice lodged within time at least to preserve the appellant's position. When the transcript ultimately became available it would have been open to counsel for the appellant to make an application to amend or refine the grounds of appeal. Depending on the nature of the amendment proposed, it would be unusual if such leave was not granted, in the particular circumstances. 25 Counsel for the respondents does not submit that they have been prejudiced by the delay in bringing the appeal, however it is submitted that there will be an injustice rendered to them in this case if the extension of time to appeal is granted. This is because they are entitled to have the benefit of the decision in their favour and further they are entitled to have the peace of mind that litigation coming to a finality brings to a successful litigant. Further it is submitted on behalf of the respondents that if there are ongoing proceedings they will incur further legal costs which would be an injustice. 26 The appellant's financial situation in relation to this matter is also somewhat perilous. As previously noted according to his counsel the (Page 11)
appellant and his parents had up until the hearing before the Joondalup Magistrates Court spent short of $10,000 on legal fees. Further they faced a costs application via a letter from the other side dated 28 November 2012 in the amount of $24,620.37. In the event that the appellant was granted leave to appeal this decision and was unsuccessful, further significant legal costs would be incurred on his part. It must be remembered that in the face of the costs involved in this matter the claim is for the sum of $10,900 with interest. 27 There is an issue as to whether or not this matter is of such importance that it is in the public interest leave be granted. In this regard counsel for the respondents refers to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 which provides that: The Appeal Court may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.
The learned magistrate's reasons for decision 28 Her Honour delivered a 17-page judgment setting out in detail the summary of the evidence and her findings in relation to the evidence before her. 29 She referred to the appellant and Ms Webster, the daughter of the two respondents, being in a de facto relationship and residing in Queensland. They travelled to Perth to visit the respondents in late May 2010 shortly after the appellant had been awarded $250,000 compensation following his involvement in a motor vehicle accident where apparently he suffered a head injury or injuries. 30 Although counsel for the appellant submitted in argument to this court and also suggested in ground 7 of his notice of appeal that this was of some significance or should have been accorded greater weight than it was, nothing in the transcript of the hearing reveals that this was an issue or that it was problematic in any way at trial. 31 Counsel for the appellant during the course of the hearing of this application said on page 33 of the transcript that it was his belief that the appellant 'basically fell apart in the witness box' and 'did not give very good evidence' but counsel conceded that this was not a reason or sound basis to allow an appeal to proceed. Nor was the fact that the appellant may have been very disappointed at the outcome of the hearing before the Magistrates Court as was suggested on page 34 of the transcript of this hearing. Counsel for the appellant submitted that at trial his client had (Page 12)
trouble in evidence remembering things, but that again is not in any way persuasive in granting this application. Counsel for the appellant suggested that his client had suffered an injustice as he did not obtain the decision he believed he should have obtained in the hearing before the learned magistrate, but again this is hardly determinative of the application before this court. Further the fact that one may not obtain the decision they believe they should obtain in litigation is a potential risk in embarking upon any litigation. 32 The appellant asserted at trial that he made three loans to the respondents during the course of his stay with them. The first was in the order of $2,200 for couches that had been re-upholstered and which without prior notice were delivered to the respondents' home whilst the appellant and Ms Webster were present. He asserted that Mrs Mansom, the first respondent did not have sufficient funds to pay for the couches upon delivery and so the delivery men were going to re-load them and take them away. According to the appellant both respondents then begged him in a quite dramatic way, (in that Mr Mansom got down on his hands and knees) to pay the delivery men for the couches and that Mr Mansom told the appellant that he would be repaid when Mr Mansom received his tax return. The appellant said that Ms Webster was also involved in requesting him to pay for the balance owing for the couches on delivery. The appellant alleges that sum has not been repaid. 33 The second loan alleged was in respect to payment for repairs to the respondents' Ford Falcon motor vehicle which the appellant claimed was in a state of disrepair at the time of his visit. He said that Mr Mansom requested the appellant to pay for the repairs to the vehicle and told him that he would be repaid at the end of the financial year. That loan he contends has not been repaid. 34 The final loan concerns an allegation that after discussions with Ms Webster and the respondents concerning numerous outstanding household bills which the respondents were unable to pay, the appellant loaned the respondents the sum of $5,000 in cash to meet those expenses and that this loan has not been repaid. 35 Although there was some discussion and confusion at trial as to the exact amounts of the alleged loans in the end result it seems to have been accepted that the appellant was seeking $10,900 by way of a General Procedure Claim. (Page 13)
36 The respondents denied owing the appellant any money. It was admitted that the appellant paid the balance owing for the re-upholstered couches on delivery and paid for repairs to the respondents' motor vehicle. The respondents maintained at no time did they request the appellant to do so, rather that he insisted on doing so and that the monies were by way of gifts. The respondents' evidence was to the effect that the appellant, without their knowledge or approval, took the vehicle concerned to a repairer and arranged for work to be done upon it and then subsequently paid for that work. 37 The respondents denied that the appellant gave them $5,000 by way of a loan or even a gift for household expenses during the period that he and Ms Webster and their young children were residing with the respondents. The respondents accepted that the appellant and Ms Webster during the relevant period paid costs towards household items such as food and alcohol, in the sense that they paid a share of such expenses, but the respondents denied that they ever requested the appellant loan them money for these expenses and further asserted that he never gave them money for the purposes of covering household expenses such as food, rent or power. 38 It was argued on behalf of the respondents that in a family or domestic relationship, such as existed between them and the appellant and indeed Ms Webster at the relevant time, there is a presumption that the parties do not intend their agreement if any to have any legal consequences: Balfour v Balfour [1919] 2 KB 571 and that such a presumption extends to distant relatives being a category into which the respondents fell. It was accepted that the presumption is rebuttable by proof of facts to show the opposite intention, but the onus to do so lies upon the appellant and in the end in the light of all the evidence before her the learned magistrate was not satisfied to the required standard that the appellant had discharged that onus. 39 Relevant to the issue of the alleged loans the appellant asserted that in late December 2010 Mr Mansom sent him two text messages in response to a text which the appellant had sent to Ms Webster. The appellant's text to Ms Webster stated: Tell your parents they need 2 start paying what is owed 2 me, need my money back without getting fucked over. 40 Mr Mansom admitted that he sent two texts to the appellant which were sent very close together in time, the first of which stated: (Page 14)
Hi I'm back at work mid to late Jan? Unable to pay lump sum, only way I can do this is to pay it in small amounts and can't confirm amounts due to hardship. Please text me your account details. 41 The second message read: Hi ??? Will be back at work mid to late Jan. Unable to pay lump sum only small amounts irregular payment due to hardship. 42 Mr Mansom gave an explanation for why he sent those two texts, namely that he did so under duress because he was being hounded by the appellant and further that the relationship between the appellant and Ms Webster had come to a very acrimonious end in December 2010 and that Mr Mansom sent the texts to the appellant in the hope that it would divert his attention from Ms Webster and cause the appellant to leave the respondents alone as well. Mr Mansom gave evidence that in any event those text messages were too uncertain in content to support an intention to form a contract between the parties and were certainly not an acknowledgment of any debt. 43 Her Honour set out in summary the witnesses who were called by both parties and who gave sworn testimony as well as whose witness statements were tendered. Also tendered were a bundle of the Mansom's electricity accounts and rental statements and two repair quotes dated 3 June 2010 relevant to the repair of the Ford Falcon vehicle. Finally some pages concerning a violence restraining order hearing between the appellant and Mrs Mansom on 24 June 2011, were tendered. 44 Her Honour, correctly in my view, identified the issues as being firstly whether the appellant made payments totalling $10,900 to the respondents as he asserted and secondly if so, were those payments made pursuant to a contract between the parties that they would be repaid or did the payment amount to a gift. 45 Her Honour then went on to refer in considerable detail to the evidence of the appellant upon which he primarily relied in presenting his case. She pointed out he provided no documentary evidence to corroborate the alleged payments he made were pursuant to a loan, although the transcript suggested that he claimed there were documents constituting acknowledgment of the loans but said that subsequently these were somehow removed or taken by Ms Webster after their relationship came to an bitter end. The respondents both denied any such documentation in any form was ever completed or given to the appellant. (Page 15)
46 Her Honour referred to and analysed the appellant's evidence at trial in some detail, referring to his consistent assertions in cross-examination that his memory in respect to the alleged loans was poor. She isolated inconsistencies in his testimony and the contents of his witness statement as well as internal inconsistencies in his sworn evidence. She concluded that the appellant relevant to the alleged loan with respect to the delivery of the couches did not have a reliable recollection and gave his evidence no weight. The alleged IOUs relevant to the loans were not referred to in the appellant's witness statement or in his evidence-in-chief and he could give no details regarding them. Therefore she concluded that his evidence in that regard was lacking in credibility. 47 After analysing the appellant's evidence with respect to the alleged loan for the repairs of the Ford Falcon vehicle her Honour again isolated inconsistencies in that evidence and found it to be unreliable. 48 His evidence in relation to the alleged $5,000 loan for household expenses to the respondents was found to be lacking in detail and was vague and unreliable. 49 In ground 1 of the notice of appeal counsel for the appellant contends that there was miscarriage of justice because the learned magistrate relied heavily upon the spending habits of the appellant as being a relevant factor in determining the issues before him, when that evidence had limited relevance. After canvassing and summarising that evidence on pages 10 and 11 of her decision the learned magistrate commented that the appellant could not account for how in the space of three months he had expended the sum of $200,000 even allowing for the alleged loan payments to the respondents. Her Honour then commented that although such evidence was not entirely relevant to the issues in dispute it was relevant to the issue of the appellant's poor memory in respect to his finances at the time in question or of what occurred during that period. It cannot be said therefore that she relied heavily upon the appellant's spending habits in reaching her ultimate determination. It was a matter that went to credit in a general way. 50 In analysing the evidence of Mr Mansom the second defendant, as she did in some detail, her Honour was of the view that he was a reliable and credible witness and she accepted his explanation regarding the two text messages he sent to the appellant. 51 The respondent's daughter Ms Webster also gave sworn testimony and the learned magistrate found her to be an honest and reliable witness (Page 16)
with a clear recollection of events. Ms Webster's evidence corroborated that of both of the respondents in terms of the appellant insisting on paying for the re-upholstered couches which were delivered although Mrs Mansom was embarrassed that he did so. Ms Webster denied that she at any time ever asked the appellant to assist her parents to pay for the couches on delivery. She also corroborated the evidence of the respondents in relation to how the payment for the cost of repairs to the respondents' motor vehicle came about. She corroborated the evidence of Mrs Mansom in the sense that at some earlier time the respondents had lent two recliners or couches to the appellant and Ms Webster for their home and some visitors to the home had damaged the furniture. As a result the appellant felt obliged to take responsibility for that and this was part of the reason why he insisted in essence repaying that obligation by paying for the re-upholstered couches upon delivery. Ms Challis, a witness call on behalf of the respondents, was found to be clear and reliable in her evidence. She was staying with the respondents at the time of the visit of the appellant and Ms Webster. She was present in the company of Mrs Mansom, Ms Webster and the appellant when there was a conversation regarding repairs to the Ford Falcon. She said Mrs Mansom was extremely concerned and uncomfortable that the appellant was paying for the repairs. In response to this when Mrs Mansom expressed her discomfort and said she did not want it to happen the appellant replied to the effect 'It's okay. I've got it covered. It's fine. Don't worry about it'. Her impression was his offer to pay was a gift in the sense he did not expect repayment. 52 It should be noted that her Honour stated that even if she was wrong in her finding that when judged in context the text messages which Mr Mansom admitted he sent to the appellant lacked specific detail and were too uncertain to demonstrate an intention to form a contract. They were uncertain in that they did not mention any amounts of money owed or to be repaid. She concluded that even if she was wrong in that she would in any event consider any contract which arose from such texts, if it did, was voidable given it arose under duress. 53 At the hearing of this application counsel for the appellant in his submissions seemed to be of the understanding when one looks at pages 8 and 9 as well as page 31 of the transcript of these proceedings, that the learned magistrate in her reasons for decision did not refer to the evidence of the second respondent admitting a telephone call with the appellant's father where the father challenged Mr Mansom that he owed the appellant a debt and Mr Mansom admitted that he did. Counsel suggested this evidence was contained in the transcript of the trial proceedings and he (Page 17)
needed that transcript in order to accurately and in detail refer to that particular evidence. There are a number of difficulties with this submission. The first is that the learned magistrate in her reasons at page 13 specifically referred to the evidence of the appellant's father regarding that particular alleged telephone call and the appellant's father's evidence that the second respondent admitted the debt and said that he would ring the appellant's father back. Her Honour rejected the appellant's father's evidence on that point because she found he did not have a clear recollection of when the conversation occurred. Further and importantly the second respondent Mr Mansom in his evidence vehemently denied that he ever received such a telephone call or made any such statement to the appellant's father. It was a matter of the learned magistrate preferring the evidence of the second respondent to that of the appellant's father on this point and her Honour was perfectly entitled to do this. She provided reasons for why she did so. For that reason counsel for the appellant is mistaken in his recollection as to that particular matter. Further even without the benefit of transcript counsel for the appellant referred to that alleged conversation in ground 3 of the grounds of appeal, which runs counter to counsel's assertion that the learned magistrate did not refer to that evidence in her reasons. 54 The learned magistrate was also entitled to find the evidence of Ms Dunnett, a relative of the appellant, to be unreliable regarding an alleged telephone call which Ms Dunnett claimed that she had at the end of 2010 with the appellant and Ms Webster. She claimed that they both informed her that the respondents owed them $14,000 which they were expecting to be repaid. First of all Ms Webster denied that any such conversation ever took place and it must be remembered at the end of 2010 (Ms Dunnett was not specific as to the date), the relationship between the appellant and Ms Webster had ended in very acrimonious circumstances. There was never any suggestion from any witness in the proceedings that the sum of $14,000 was lent or owed. Further Ms Dunnett, as the learned magistrate pointed out, gave no detail as to what the alleged loan related to. 55 Counsel for the appellant contends that there was an error in that the learned magistrate refused to allow the admission of the entire transcript of previous proceedings regarding a violence restraining order between the appellant, his father and the first respondent and she refused to consider the findings of another magistrate as to credibility of the parties in that matter. Her Honour went into some detail in the course of the trial before her explaining that the purpose of it was not to re-ventilate the proceedings relating to the violence restraining order because they were (Page 18)
very different in nature to the matter before her. She allowed some cross-examination of the first respondent regarding the matter and permitted some portions of the transcript to be tendered and she explained, correctly in my view, that merely because one judge (or magistrate) finds a witness not to be credible in one piece of litigation it did not necessarily follow that another judge (or magistrate) in different proceedings involving the same party or parties would reach the same conclusion. Again it was correctly pointed out in my view that her Honour was not bound by findings as to credibility made by another magistrate in a different piece of litigation involving an entirely different matter. 56 In relation to the process that the learned magistrate undertook at the trial I consider that she did, as was required by law, set out the relevant findings of fact and the reasons for her decision. The reasons adequately disclose the intellectual process which resulted in the particular determination made by the learned magistrate: Garrett v Nicholson (1999) 21 WAR 226. As was pointed out in Skerritt v O'Keefe [1999] WASCA 183: The sufficiency of fact finding will vary widely with the exigencies of each case. 57 Counsel for the appellant in this application by reference to the grounds of appeal takes issue in a number of instances with findings of credibility made by the learned magistrate. As was said in Devries v Australian National Railways Commission (1993) 177 CLR 472, 479: Generally an Appeal Court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or misused the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts clearly established by the evidence or which was clearly improbable. 58 At the hearing of this application at pages 32 and 33 of the transcript counsel for the appellant appeared to be suggesting that although he had the opportunity to address the learned magistrate at the conclusion of the trial in the Magistrates Court as to matters of law, for example the difference between a gift and a loan, he did not feel that he had referred to the law and authorities as fully or as adequately as he could have. When it was pointed out to him it must have been evident from the outset this was a central issue in the case, counsel for the appellant's position seemed to be that given the two text messages from the second respondent to the appellant, which both counsel for the appellant and his client (Page 19)
believed was acknowledgment of a loan from the appellant to the respondents which they intended to repay, then such a finding was almost a foregone conclusion. This argument carries little or no weight and further if counsel with the benefit of hindsight does not feel that in any proceedings they properly or adequately addressed the court or judicial officer as to the law, then seeking leave to appeal is not a remedy for that particular problem. 59 For the reasons expressed I am not satisfied that the court should grant an extension of time in which to appeal in this matter. Further I am not satisfied taking into account matters that were raised by both counsel during the hearing of this application that the grounds raised have merit and as a result should proceed to hearing by way of appeal. Taking into account the entire transcript of the proceedings before the learned magistrate and her reasons for decision no errors of fact or law are disclosed.
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