Hasanov v Coventry Village Pty Ltd - [2015] WADC 142

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HASANOV -v- COVENTRY VILLAGE PTY LTD [2015] WADC 142

CORAM: DAVIS DCJ

HEARD: 8 SEPTEMBER 2015

DELIVERED : 4 DECEMBER 2015

FILE NO/S: APP 44 of 2015

BETWEEN: MURTEZA HASANOV
Appellant
AND
COVENTRY VILLAGE PTY LTD
Respondent

ON APPEAL FROM:
For File No               :  APP 44 of 2015
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE MALONE
File No  :GCLM 13013 of 2012

Catchwords:

Application for extension of time to appeal from a decision of Magistrate - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 40

Result:

Application for extension of time to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant: Mr C L Cheng
Respondent: Mr P F Fletcher

Solicitors:

Appellant: ML Legal
Respondent: Fletcher Law

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

ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51
Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557
Avsar v Binning [2009] WASCA 219
Brocklehurst v Wolinski [2015] WADC 36
Cameron v UBS AG [2000] VSCA 222; (2000) 2 VR 108
City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447
du Boulay v Worrell [2009] QCA 63
Grant v Mansom [2013] WADC 53
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29
KWS Capital Pty Ltd v Love [2015] WASCA 237
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353
Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, BC8601930, 16 June 1986
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Reid v South West Regional College of TAFE [2015] WASCA 231
Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128
Simonsen v Legge [2010] WASCA 238
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 225 FLR 1
The Lunching Pad Pty Ltd v Minister for Culture and the Arts [2001] WASC 299
Tobin v Dodd [2004] WASCA 288
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604

DAVIS DCJ: On 9 June 2015, the appellant, Mr Hasanov, filed an appeal against a decision of Magistrate Malone made on 20 December 2013 where his Honour granted judgment in favour of the respondent, Coventry Village Pty Ltd (Coventry) against Mr Hasanov in the sum of $55,674.70.
The appeal was brought 18 months after the judgment. The appeal should have been…

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: [2015] WADC 142
Decision Date: 4 DECEMBER 2015

CaseChat Overview and Summary

In the matter of Hasanov v Coventry Village Pty Ltd, the applicant sought an extension of time to appeal a decision of the Magistrates Court of Western Australia. The primary dispute revolved around whether the applicant's lack of legal representation and English being his second language justified an extension of time to lodge the appeal. The court had to determine whether the applicant's explanations for the delay were sufficient and whether the applicant's status as a self-represented litigant with a second language should be considered when assessing the application.

The court was required to weigh the general principles that a self-represented litigant should receive necessary assistance to diminish procedural disadvantages, against the principle that an unrepresented party must still adhere to court rules and time limits. The court had to decide whether the applicant's circumstances warranted an extension of time beyond the statutory limits, considering the applicant's awareness of the court processes and the need to ensure procedural fairness to all parties involved.

The court examined the applicant's reasons for the delay and concluded that his explanations were inadequate, particularly in light of the information provided by the Magistrate in February 2014. The court found that allowing an extension of time based on the applicant's status as a self-represented litigant and his language difficulties would confer an unfair advantage and was not justified. Consequently, the court dismissed the application for an extension of time.

The court ordered that the application for an extension of time to appeal be dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As to the fact that he represented himself for a time, the general principles relating to an unrepresented litigant were stated by Samuels J in Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, BC8601930, 16 June 1986):In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent. These principles have been applied in a number of cases including Tobin v Dodd [2004] WASCA 288 [14] and Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]. In du Boulay v Worrell [2009] QCA 63 [69], Muir JA (with whom Fraser JA agreed) said:It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice. Given the background as I have set out, and having regard in particular to what he was told by Magistrate Boon in February 2014, Mr Hasanov must have been aware that there were court processes and time limits with which he had to comply. It was up to Mr Hasanov to find out the court processes and time limits which applied to bringing an appeal from Magistrate Malone's decision of 20 December 2013. The time limits in the MCCPA for bringing an appeal to this court cannot be avoided by Mr Hasanov relying on the fact that he was not always legally represented. In my view Mr Hasanov's explanations for the whole of the delay are inadequate, particularly for the delay since the hearing before Magistrate Boon on 28 February 2014. In the particular circumstances of this case, to allow an extension of time based on the fact that Mr Hasanov was, for a time, a self‑represented litigant, with English as his second language, would give him a privileged status which, in my view, would be quite unfair to the respondent, Coventry.