Koerner, Sara Lina v Farrell, Simon John

[1997] FCA 1351

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

AG44  of   1997

ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	SARA KOERNER Appellant
AND:	SIMON JOHN FARRELL Respondent
JUDGE(S):	WILCOX, NICHOLSON AND FINN JJ
DATE OF ORDER:	30 OCTOBER 1997
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 AG44 of 1997

ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

SARA KOERNER

Appellant

AND:

SIMON JOHN FARRELL

Respondent

JUDGE(S):	WILCOX, NICHOLSON AND FINN JJ
DATE:	30 OCTOBER 1997
PLACE:	CANBERRA

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an appeal against a decision of a Judge of the Supreme Court of the Australian Capital Territory, Cooper J, refusing an application for leave to appeal to the Supreme Court against a decision of a special magistrate exercising jurisdiction under the Small Claims Act 1974. The case arose out of a claim by the appellant, Sara Koerner, that her car had been damaged by the respondent, Simon John Farrell, when it was on his premises. Mr Farrell carries on business, apparently, as an automobile smash repairer and spray painter. Mr Farrell denied causing the damage.

Evidence was given to the magistrate by Ms Koerner and Mr Farrell. Mr Farrell also called a witness, Mr J. McKenzie, a person with expert qualifications. The magistrate was not satisfied damage had been caused to Ms Koerner's car by Mr Farrell, and he gave reasons for that view. Ms Koerner was dissatisfied with his decision, and sought leave to appeal to the Supreme Court. Cooper J refused that application. So far as the record reveals, he did not give reasons for the refusal, but it is clear the matter was dealt with pursuant to s 33(2) of the Small Claims Act.

Section 33 provides as follows:

“33(1)Subject to this Act, a party to the proceedings may, with the leave of the Supreme Court, appeal to the Supreme Court against a judgment (other than an interlocutory judgment) given under this Act.

(2) The Supreme Court shall not grant leave, for the purpose of subsection (1) unless it is satisfied -

(a)      that the decision of the Court on a question of law was wrong; or

(b)that the conduct of the proceedings in the Court was unfair to the applicant.”

It will be noted the Supreme Court is forbidden to grant leave, for the purpose of subs (1), unless it is satisfied of one of two things:  either the decision of the Court, that is to say the Small Claims Court, on a question of law was wrong; or alternatively, the conduct of the proceedings in the Court was unfair to the applicant.

Ms Koerner supplied this Court with some further material which we have read. It goes to the merits of the factual decision made by the magistrate. It does not assist her on the appeal because she has to demonstrate one of the two requirements of s 33(2). She is unable to do this. It seems to me clear, beyond question, that there is no issue of law. The magistrate's decision was one of fact. Ms Koerner has made clear to us today that she thinks the magistrate's factual conclusion was incorrect. It is not for us to form a view, one way or the other, on that matter and I do not do so. I simply say his decision was entirely one of fact. No question of law emerged and there is no basis upon which it can be said that the Small Claims Court erred in law.

Similarly, there is no basis for saying the conduct of the proceedings in the Small Claims Court was unfair to the appellant.  Ms Koerner submitted the proceedings were unfair because the decision went against her when, in her view, it should have been in her favour.  I can understand her having that feeling, but I do not think par (b) is concerned with this.  The paragraph talks about the "conduct of the proceedings".  This is obviously intended to relate to matters such as denial of a fair hearing, wrongful behaviour by the court and similar matters.  It cannot have been intended par (b) would operate whenever a litigant feels the result was unfair; otherwise, there would be no purpose in the limitation regarding leave to appeal.

I understand Ms Koerner's feelings in the matter.  Obviously, she genuinely feels the magistrate's decision was wrong.  She may or may not be correct in that perception.  However, the limitations in the section are clear.  It is not for the Court to subvert those limitations by giving effect to any sympathy that it might have with her desire to reventilate the matter.  We are concerned with relatively small claims.  There is a very significant interest, both a public interest and a private interest for individual litigants, in restricting appeals.  It is sometimes better in a small claim case that there be finality rather than a search for perfect justice.  In any event, the policy of the section is clear.  In my view, we must give effect to it by dismissing the appeal.

NICHOLSON J:   I agree.

FINN J:   I agree.

WILCOX J:   The order of the Court will be that the appeal be dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            30 October 1997

Appellant in person
Solicitor for the Respondent:	Meyer Boettcher & Clapham
Date of Hearing:	30 October 1997