Hoddinott v Decorative Concrete Services Pty Ltd
[2013] WASCA 181
•9 AUGUST 2013
HODDINOTT -v- DECORATIVE CONCRETE SERVICES PTY LTD [2013] WASCA 181
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 181 | |
| THE COURT OF APPEAL (WA) | 09/08/2013 | ||
| Case No: | CACV:28/2013 | 24 JULY 2013 | |
| Coram: | PULLIN JA MURPHY JA | 24/07/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SUSAN HODDINOTT DECORATIVE CONCRETE SERVICES PTY LTD MICHAEL MILLS |
Catchwords: | Appeal Whether any of the grounds has a reasonable prospect of succeeding |
Legislation: | District Court Act 1969 (WA), s 79 Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40 Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) |
Case References: | Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HODDINOTT -v- DECORATIVE CONCRETE SERVICES PTY LTD [2013] WASCA 181 CORAM : PULLIN JA
- MURPHY JA
- Appellant
AND
DECORATIVE CONCRETE SERVICES PTY LTD
First Respondent
MICHAEL MILLS
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : APP 53 of 2009
Catchwords:
Appeal - Whether any of the grounds has a reasonable prospect of succeeding
Legislation:
District Court Act 1969 (WA), s 79
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : No appearance
Second Respondent : No appearance
Solicitors:
Appellant : In person
First Respondent : No appearance
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
1 REASONS OF THE COURT: On 24 July 2013, the court dismissed this appeal with reasons to follow. These are the reasons.
2 A registrar's notice to attend required the court to consider, inter alia, whether the appeal should be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) on the basis that none of the grounds of appeal had a reasonable prospect of succeeding.
3 In 2008, the respondent installed a concrete driveway at a property owned by the appellant. After the driveway was completed, a dispute arose regarding the price for the work, the scope and quality of the work, and the length of time taken to complete the work. The respondent sought payment of $12,500 from the appellant, but the appellant refused to pay the respondent. The respondent sued the appellant for the price of the driveway in the Magistrates Court. The appellant counterclaimed.
4 A question arose about the jurisdiction of the Magistrates Court, and whether the dispute was one which had to be dealt with by the Building Disputes Tribunal. On 16 July 2009, a magistrate ruled that the Magistrates Court had no jurisdiction and ordered that the claim and counterclaim be referred to the Building Disputes Tribunal for determination. The respondent lodged an appeal to the District Court on 7 August 2009, which appeal was heard by O'Neal DCJ.
5 On 21 September 2009, the respondent (in this appeal) also filed a complaint in the Building Disputes Tribunal, and the issues between the parties were thrashed out there. The appellant (in this appeal) did not challenge the decision of the magistrate or question the jurisdiction of the Building Disputes Tribunal at that time. An amount of about $1,200 was assessed as a reasonable cost of rectification of the driveway, and this was set off against the respondent's claim with the result that the appellant was ordered to pay the respondent $5,648.53 by 14 May 2010, otherwise the complaints were dismissed. That sum was not paid.
6 The appellant then invoked the review jurisdiction of the State Administrative Tribunal (SAT) in relation to the Building Disputes Tribunal's decision. The review was allowed in part but not, as O'Neal DCJ said, 'for the more florid grounds that [the appellant] advanced' (ts 67, Decorative Concrete Services Pty Ltd v Hoddinott, District Court of Western Australia, 7 March 2013). The amount that the appellant was required to pay was reduced by SAT to $4,455.37. The appellant did not pay that amount.
7 In 2011, the District Court wrote to the parties asking why the respondent's appeal against the magistrate's decision should not be dismissed for want of prosecution. The appeal was dismissed administratively by a registrar, but eventually the order was recalled to allow the appellant (in this appeal) to make submissions. The appellant filed a notice of respondent's answer and cross-appeal. By this time, some 18 months had passed since SAT's decision and execution proceedings had been taken by the respondent (in this appeal) to try and recover the money the appellant had been ordered to pay.
8 When the matter came before O'Neal DCJ, the respondent (in this appeal) had no interest in pursuing the appeal and it was dismissed. The cross-appeal instituted by the appellant was one in which the appellant sought an order that the decision of SAT be declared a 'nullity'. O'Neal DCJ, not surprisingly, held that to be an 'impossibility' (ts 70), meaning that the District Court had no power to make such an order. Other reasons were given for dismissing the appeal, including a paragraph which read:
Relying on the authorities referred to by McLure J as she then was in the case of [Appleyard v Walker [2009] WASCA 141] the principles of res judicata and issue estoppel apply here with respect to the decision of SAT. Given the history of this litigation, in particular, the conduct of [the appellant] that's revealed by the transcripts and the documents contained in the appeal book, her selective obedience to court processes and orders, the modest amount of money involved in this litigation indeed, in some respects, trifling, compared to the trouble and harassment, that is the harassment by [the appellant] using the cloak of judicial or quasi judicial processes, her delay and her selection now of this process to once again start a round of legal processes which can be challenged or ignored if unsatisfactory or if not entirely satisfactory in their outcome, in my view, the invocation of this appeal process has become an abuse of this court and I would dismiss the appeal for that reason as well. The appeal is accordingly dismissed (ts 71).
9 At the time that O'Neal DCJ gave his decision, the appellant (in this appeal) had not sought to appeal against the SAT decision. She informed this court that she intended to do so by commencing an appeal in the General Division of the Supreme Court.
10 The appellant instituted her appeal to this court against O'Neal DCJ's order dismissing her cross-appeal in the District Court. Appeals to this court against a decision of the District Court exercising appellate jurisdiction under s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) are allowed pursuant to s 42 of the MCCP Act, and not pursuant to s 79 of the District Court of Western Australia Act 1969 (WA).
11 There were five grounds of appeal which read:
1. The District Court Rules 2005 Section 50 state:
…
This is an error of law[.]
2. The granting of the appeal should have been a simple matter[.] The relevant section of law which defines that the Magistrates Court was the correct jurisdiction is:
Part 2 Section 6(b) of Magistrate's Act (Civil Proceedings) 2004.
…
This is an error of law.
3. The decision in the District Court was based upon what subsequently occurred. What subsequently occurred was a direct consequence of the error of law and consequent change in jurisdiction which occurred in the Magistrates Court.
This is an error of law.
4. The appeal was denied on the basis of res judicata when the matter had not been heard at all. The Defence and Counterclaim were effectively struck out by the restricted jurisdiction of the Building Disputes Tribunal and the SAT reviewing body of this Tribunal. (original emphasis)
This is an error of fact.
5. The decisions of these bodies were not lawful as they require a written, signed and dated contract, under the Home Building Contracts Act 1991. The application of the Home Building Contracts Act 1991 being the reason for the change in jurisdiction by the Magistrate. These decisions are not just nullities but illegalities.
This is an error of law.
13 The appellant's objective in the appeal before the District Court was to set aside the decision of SAT. The only way that could be done was pursuant to an appeal against SAT's decision.
14 Grounds 1, 2, 3 and 5 do not allege any error by O'Neal J.
15 Ground 4 has no reasonable prospect of succeeding for the following reasons. The ground asserts that the 'appeal was denied on the basis of res judicata when the matter had not been heard at all'. This reveals that the appellant understood the reasons of O'Neal DCJ as concluding that the principle of res judicata applied in relation to the Magistrates Court decision. However, O'Neal DCJ was not referring to the principle of res judicata applying to the hearing in the Magistrates Court. Instead, his Honour was applying the principle 'with respect to the decision of SAT'.
16 Thus, ground 4 is based on a misrepresentation of the judge's reasons. An appeal ground based on a misrepresentation of the reasons can have no reasonable prospect of succeeding. The purpose of r 43(2)(g)(i) of the Court of Appeal Rules is to weed out unmeritorious appeals: see Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55]. This appeal was unmeritorious because the appellant frankly stated that what she sought to achieve by this appeal was to have the decision of SAT and the Building Disputes Tribunal set aside.
17 It would be against the interests of justice and the interests of the parties and an abuse of process to allow the proceedings before the magistrate to be reopened when the issues have been decided in the Building Disputes Tribunal and SAT, and in circumstances where the appellant proposes to institute an appeal against the SAT decision.
18 For those reasons, the appeal was dismissed.
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