JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KNELL -v- QAV PTY LTD [2020] WASCA 23
CORAM: QUINLAN CJ
PRITCHARD JA
VAUGHAN JA
HEARD: 9 DECEMBER 2019
DELIVERED : 27 FEBRUARY 2020
FILE NO/S: CACV 11 of 2019
BETWEEN: SIDNEY CHARLES KNELL
Appellant
AND
QAV PTY LTD
First Respondent
KATHRYN ISABEL HARRIS
Second Respondent
WARREN MATHESON LANCE
Third Respondent
NETLINE PTY LTD
Fourth Respondent
FILE NO/S: CACV 25 of 2019
BETWEEN: QAV PTY LTD
Appellant
AND
SIDNEY CHARLES KNELL
First Respondent
KATHRYN ISABEL HARRIS
Second Respondent
WARREN MATHESON LANCE
Third Respondent
NETLINE PTY LTD
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : CIV 3385 of 2013
Catchwords:
Appeal from District Court - Whether primary judge departed from the pleaded issues - Observations made by primary judge after judgment delivery - Observations not part of reasons for judgment - Turns on own facts
Appeal from District Court - Jones v Dunkel - Whether primary judge erred in drawing a Jones v Dunkel inference adverse to appellant - Appellant failed to give evidence - No satisfactory explanation provided for failure to give evidence - Turns on own facts
Legislation:
Defamation Act 2005 (WA), s 30
Result:
Appeal dismissed
Category: B
Representation:
CACV 11 of 2019
Counsel:
| Appellant | : | In person |
| First Respondent | : | A Olsen |
| Second Respondent | : | C P K Russell |
| Third Respondent | : | C P K Russell |
| Fourth Respondent | : | C P K Russell |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | A Olsen |
| Second Respondent | : | Pragma Legal |
| Third Respondent | : | Pragma Legal |
| Fourth Respondent | : | Pragma Legal |
CACV 25 of 2019
Counsel:
| Appellant | : | A Olsen |
| First Respondent | : | In person |
| Second Respondent | : | C P K Russell |
| Third Respondent | : | C P K Russell |
| Fourth Respondent | : | C P K Russell |
Solicitors:
| Appellant | : | A Olsen |
| First Respondent | : | In person |
| Second Respondent | : | Pragma Legal |
| Third Respondent | : | Pragma Legal |
| Fourth Respondent | : | Pragma Legal |
Case(s) referred to in decision(s):
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Cairns Central Plaza Apartments [2012] QBCCMCmr 385
Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Knell v Harris [No 5] [2018] WADC 177
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Lance v QAV Pty Ltd [2013] WASC 13
Morley v Australian Securities and Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140
Netline Pty Ltd v QAV Pty Ltd [No 2] [2015] WASC 113
R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631
Re Bluechip Development Corporation (Cairns) Pty Ltd [2011] QSC 368
West v Government Insurance Office of New South Wales [1981] HCA 38; (1981) 148 CLR 62
QUINLAN CJ:
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- AGLC
- Knell v QAV Pty Ltd [2020] WASCA 23
- Case
- [2020] WASCA 23
- Decision Date
CaseChat Overview and Summary
The court was required to determine two main legal issues: whether the primary judge had departed from the pleaded issues by considering observations made after the judgment, and whether the primary judge had erred in drawing an adverse inference against Mr. Knell for failing to give evidence without providing a satisfactory explanation. The court examined the nature of the post-judgment observations and whether they formed part of the reasons for the judgment. Furthermore, the court assessed the validity of the inference drawn by the primary judge regarding Mr. Knell's failure to provide evidence.
The appellate court found that the observations made by the primary judge after delivering the judgment did not constitute part of the reasons for the decision. Consequently, the court concluded that the primary judge did not depart from the pleaded issues. Regarding the inference drawn by the primary judge, the appellate court held that there was no error as Mr. Knell did not provide a satisfactory explanation for his failure to give evidence, which justified the adverse inference. The court held that these issues were specific to the facts of the case and did not set a broader legal precedent.
In conclusion, the appeal was dismissed. The appellate court upheld the decision of the primary judge, affirming that the observations made post-judgment did not influence the court's reasoning and that the adverse inference drawn against Mr. Knell was justified. The court's decision emphasized the importance of providing a satisfactory explanation for the failure to give evidence in legal proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In 2011 and 2012 Mr Knell was involved in litigation in Queensland of which Mr Lance became aware. That litigation concerned:1.Re Bluechip Development Corporation (Cairns) Pty Ltd[20] - a 9 December 2011 decision where a winding up order was made in relation to a company of which Mr Knell was a director. Among other things the trial judge had general reservations about Mr Knell's evidence.2.Cairns Central Plaza Apartments[21] - a 23 August 2012 decision where an adjudicator refused an increase in the remuneration to be paid to a company in which Mr Knell had an interest.[20] Re Bluechip Development Corporation (Cairns) Pty Ltd [2011] QSC 368.[21] Cairns Central Plaza Apartments [2012] QBCCMCmr 385. Commencing from mid-March 2011 Mr Lance began communicating his concerns about QAV and Mr Knell to Ms Logiudice. Later Mr Lance's concerns resulted in information being provided and complaints being made to the Australian Taxation Office (ATO), the Australian Securities and Investments Commission (ASIC) and the Major Fraud Squad of the Western Australian Police Squad (Fraud Squad). The primary judge recounts this (and some of Mr Knell's communications to owners) at length at [90] to [115] and [118] to [131] of his Honour's reasons for decision. As to Ms Logiudice:1.On 15 and 16 March 2011 Mr Lance sent Ms Logiudice, among others, emails with the subject header '[p]roposal to sack the letting agent' referring to proceedings being commenced against QAV to recover deductions, overcharging and unauthorised deductions by QAV, ARM being prima facie a fraud, threatening owners with invalid and unauthorised agreements and that the ATO may wish to investigate whether a company associated with Mr Knell declared certain commission items as income.2.By a 15 March 2011 information memorandum, prepared at Ms Logiudice's request for the strata company's annual general meeting as scheduled for 17 March 2011, Mr Lance sought to terminate QAV's services at Ascot Village. Among other things Mr Lance raised whether Mr Knell was a fit and proper person to direct QAV's operations. Reference was also made to ARM and QAV's deduction of booking fees. (At the AGM the motion to terminate QAV's services was defeated and Mr Lance was not re-elected to the council of owners.)3.On 30 September 2011 Mr Lance sent emails to Ms Logiudice suggesting that she investigate Mr Knell's involvement in the 'Bluechip group' of companies stating that he, Mr Lance, suspected this could raise questions about Mr Knell's suitability as a director of QAV. Mr Lance also confirmed the Magistrates Court's finding and asserted that the new QAV letting services agreements were to the advantage of QAV and the detriment of the owners. Mr Lance suggested that Ms Logiudice provide the materials to the members of the council of owners.4.On 18 October 2011 Mr Lance sent Ms Logiudice and various owners another email referring to the Magistrates Court's ruling - stating that QAV was not entitled to deduct various expenses. Mr Lance again referred to the ARM letting arrangements as being a prima facie fraud. Mr Lance sought compliance with the terms of the fixed and split return agreements contained in the schedules to the LSA.5.By letter dated 23 January 2012 to Ms Logiudice, Mr Lance called on QAV to uphold the terms of the LSA and refund money due to owners. Mr Lance also informed Ms Logiudice that information had been provided to the ATO and complaints had been lodged with the ASIC.6.On 1 August 2012 solicitors acting for Mr Lance wrote to Ms Logiudice regarding the use of letting agreements that were not in conformance with the LSA.