Lawrence v Becker - [2008] SASC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
LAWRENCE v BECKER
[2008] SASC 29
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Layton)
14 February 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
Application for permission to appeal against decision of single judge of Supreme Court - on appeal from Magistrates Court - principles applicable to granting of permission to appeal - whether single Judge fully addressed appellant's grounds for appeal - whether single Judge erred in interpretation of the relevant evidence - whether single Judge erred in interpretation of the relevant reasons for judgment of the magistrate.
Held: Permission to appeal refused.
Supreme Court Civil Rules 2006 r 285, r 291; Supreme Court Practice Directions 2006 PD 6.1.4, referred to.
Martin v Kraft (No. 2) (Unreported, Supreme Court of South Australia, Full Court, King CJ, Cox and Debelle JJ, 1 July 1991, Judgment Number 2964); Stokolosa v Weeks Peacock Quality Homes Pty Ltd [2000] SASC 334; Campbell v O'Sullivan [1947] SASR 195, applied.
SA Govt Financing Authority v Bank of New Zealand and BT Australia (HK) Ltd [2002] SASC 56, considered.

LAWRENCE v BECKER
[2008] SASC 29
Full Court: Bleby, Gray and Layton JJ
THE COURT
Background

This is an application for permission to appeal against a judgment of the Chief Justice given on 14 December 2007. The Chief Justice dismissed an appeal against the decision of a magistrate.
In the Magistrates Court, Mr and Mrs Becker had commenced proceedings against Mr Lawrence, the present applicant for permission to appeal. Their claim was for the balance of the cost of work carried out by them on Mr Lawrence’s yacht, and for making a new rudder for the yacht. Besides denying liability, Mr Lawrence had counterclaimed the repayment of $3,000 he had paid to Mr and Mrs Becker for the work. The magistrate entered judgment against Mr Lawrence for $3,616.87 plus interest, a total amount of $4,320. The magistrate dismissed Mr Lawrence’s counterclaim.
An appeal to the Full Court in these circumstances lies only with the permission of the Court.[1] Mr Lawrence now applies to the Full Court for permission to appeal in accordance with r 285 of the Supreme Court Civil Rules 2006. In accordance with the requirements of r 291 and Practice Direction 6.1.4, Mr Lawrence has lodged a summary of argument in support of his application for permission to appeal. The Court has decided to determine the application without hearing oral argument.[2]
[1] 54(a)(ii) Supreme Court Act 1935 (SA).
[2] See r 291(3)(a), Supreme Court Civil Rules 2006.
An appeal to the Full Court is required to be commenced within 21 days of the date of the judgment appealed from. In this case, the Notice of Appeal and Application for Permission to Appeal was not filed until 17 January 2008. It is therefore necessary to consider whether an extension of time for commencing the appeal should be granted.
The Issues in the Magistrates Court
Mr Lawrence originally instructed Mr Becker to clean the hull of his yacht and to remove marine growth. As noted by the Chief Justice, the main issues before the magistrate were:
·whether Mr Lawrence agreed with Mr Becker for Mr Becker to have the hull grit blasted and painted as well;
·whether the painting work was done properly;
·whether the charge for the painting work was reasonable;
·whether Mr Lawrence agreed that Mr Becker should make a new rudder;
·whether the rudder was properly made, and whether the charge for the rudder was reasonable.
Before the magistrate, except for a short time towards the end of the case when Mr Lawrence was represented by counsel, the parties presented their own cases. They were also self-represented in the appeal before the Chief Justice.
The argument in the Magistrates Court turned on disputed questions of fact, most of which were resolved in favour of Mr and Mrs Becker. Mr Lawrence challenged those findings in his unsuccessful appeal before the Chief Justice. The grounds of appeal on which he now relies are that the Chief Justice:
1    Did not fully address the appellant’s grounds for appeal. There was no time to do so;
2    Erred in his interpretation of the relevant evidence;
3    Erred in his interpretation of the relevant reasons for judgment of the magistrate; and
4    Had considered a written submission by the respondents which the appellant had never seen.
Principles Applicable to the Granting of Permission to Appeal
It is well established that permission to appeal in circumstances such as these will only be granted in cases which raise some question of principle or of importance to the parties.[3] In Martin v Kraft (No. 2)[4] King CJ, speaking on behalf of the Court, said:
Leave to appeal to this court against a decision of a single judge on appeal from a Court of Summary Jurisdiction is granted, ordinarily speaking, only where the grounds of appeal disclose a point of law, or a point of principle of general importance, or in some exceptional cases where there are clear indications that an injustice has occurred.
[3] Campbell v O’Sullivan [1947] SASR 195, Napier CJ at 208.
[4] (Unreported, Supreme Court of South Australia, Full Court, King CJ, Cox and Debelle JJ, 1 July 1991, Judgment Number 2964).
Similarly, in Stokolosa & Anor v Weeks Peacock Quality Homes Pty Ltd,[5] Doyle CJ said on behalf of the Court:
The court’s practice has been to grant leave to appeal only if a question of general principle arises, and usually the court considers also whether there is reason to doubt the correctness of the decision under consideration. However, in the end the court must act as the interests of justice may require.
[5] [2000] SASC 334. See also SA Govt Financing Authority v Bank of New Zealand and BT Australia (HK) Ltd [2002] SASC 56 at [12]–[13].
Application of the Principles
In elaboration of ground 1 and in support of his application for permission to appeal, Mr Lawrence complains that the hearing was too short to present and argue the appeal properly.
As previously noted, both parties represented themselves on the appeal. Mr Lawrence complains that they were each given only one hour in which to state their case.
It is not unusual in cases of this nature in a busy court, where an afternoon has been set aside for the hearing of the appeal, for the time to be appropriately shared between the parties. In this case, the Chief Justice had not only the benefit of oral submissions but of a Notice of Appeal with grounds covering 19 pages with substantial reference to various documents, a further document entitled “Supplementary Grounds of Appeal” and a further document entitled “Ammended (sic) Notice of Appeal”. The latter contained what were described as “Supplementary Grounds of Appeal” but contained detailed references to transcript and exhibits in support of Mr Lawrence’s grounds of appeal. We are not satisfied that the appellant was prejudiced in his presentation of the appeal by the time limitations which may have been imposed by the Chief Justice.
We turn to the question of whether the Chief Justice addressed the grounds of appeal. The grounds of appeal stated in the Notice of Appeal were that the magistrate:
1.   Allowed the plaintiff to withhold discovery;
2.   Made many errors about the evidence on the basis of which she formed her judgment;
3.   Failed to consider much of the evidence of the witnesses for the defence;
4.   Did not understand some of the evidence;
5.   Failed to take into consideration evidence from the exhibits;
6.   Was not fair and impartial in her assessment of evidence.
These grounds were the subject of elaboration in this and other documents.
As can be seen, the essence of the appeal involved challenges to the magistrate’s finding of facts. The Chief Justice, in his reasons for judgment, noted the course of the hearing and the difficulties faced by the magistrate by the fact that both parties, for the most part, were unrepresented. He noted that much irrelevant evidence was sought to be tendered. That would include such documents as the minutes of the Annual General Meeting of the Cruising Yacht Club, of which both Mr Lawrence and Mr Becker were members. That is a document now sought to be relied on by Mr Lawrence. The Chief Justice discussed at some length, the findings of the magistrate as to the credit of the various witnesses. Not only did he rely on the submissions of the parties but he read the whole transcript of evidence, some 247 pages, and concluded from that reading that the transcript tended to support the magistrate’s findings. He rejected the attack on the magistrate’s findings of credibility. That had the effect of determining whether Mr Lawrence had instructed Mr Becker to proceed with the work and of upholding the magistrate’s findings in that regard.
The Chief Justice summarised the evidence as to the cost of grit blasting and painting and the magistrate’s findings as to the work done, its appropriateness and its cost. He concluded from his review that the magistrate’s findings were supported by the evidence. He conducted a similar exercise in relation to the making of the rudder and concluded that, on the evidence, the magistrate was able to reach the conclusions that she did.
In dealing with the matters in the way that he did, the Chief Justice effectively dealt with all the grounds of appeal relied on by Mr Lawrence with one exception. He did not mention the alleged failure of Mr and Mrs Becker to give discovery of documents. This was a matter about which Mr Lawrence complained at the commencement of the trial. The magistrate declined to adjourn the trial to enable further discovery to be given. As is apparent from the magistrate’s reasons, the parties had agreed to have the matter heard as a small claim, i.e. without legal representation and with less formality than would generally apply to other civil actions in the Magistrates Court. It is apparent that, either shortly before or during the trial, Mr Lawrence changed his mind and the matter had to be re-listed on a later date to accommodate his desire to be represented by counsel. As the matter was being treated as a small claim at the commencement of the hearing and as almost 12 months had elapsed since the proceedings were commenced, there was no justification for further delays for formal interlocutory proceedings.
Insofar as Mr Lawrence complains that Mr and Mrs Becker deliberately withheld documents within their power or possession, that was a matter which went to their credibility as witnesses which in turn, was the subject of findings by the magistrate which the Chief Justice considered were available to the magistrate on the evidence.
As is apparent, grounds 2 and 3 of Mr Lawrence’s proposed appeal challenge directly the findings of fact made by the magistrate and the confirmation of those findings by the Chief Justice in the manner described. Grounds 1, 2 and 3 raise no question of law or point of principle of general importance. There is no reason to doubt the correctness of the decision of the Chief Justice in relation to those grounds.
Proposed ground 4 suggests that the Chief Justice acted on a written submission from Mr and Mrs Becker which Mr Lawrence had not seen. At the outset of the hearing, the Chief Justice explained to the self-represented parties the procedure which he would adopt. He identified all the documents that he had read, including the documents to which reference has been made, supplied by Mr Lawrence. He also indicated that he had read a letter addressed to him from Mr and Mrs Becker dated 3 December 2007. That letter indicated that a copy had been sent to Mr Lawrence. If ground 4 relates to that letter, and there is no other document on the file to which it could relate, there was no complaint by Mr Lawrence at the time that he had not seen a copy of it, nor was there any objection to the Chief Justice receiving it. Importantly, the Chief Justice had regard to the whole of the evidence, the relevant exhibits that had been retained, the magistrate’s reasons for judgment and all documents relating to the appeal relied on by Mr Lawrence. Ground 4 also raises no point of law or point of principle of general importance. There is no indication that any injustice in the hearing of the appeal has occurred.
It follows that there are no grounds on which an application for permission to appeal could properly be granted.
Extension of Time
Mr Lawrence seeks an extension of time within which to commence his appeal. He gives as reasons for the delay the fact that he was acting on his own without legal help and needed more time than allowed in order to prepare and set out his arguments. That has included a 52 page document in elaboration of his Summary of Argument lodged with the Notice of Appeal. In those circumstances and given the intervention of Christmas holidays, an extension of approximately two weeks is not unreasonable and it would be appropriate to grant the extension.
Orders
In the circumstances, the Order of the Court is:
1. That the time within which the appellant’s appeal must be commenced be extended to 17 January 2008.
2. That permission to appeal be refused.