Loiacono v SALUTO
[2004] WASCA 74
•15 APRIL 2004
LOIACONO -v- SALUTO [2004] WASCA 74
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 74 | |
| THE FULL COURT (WA) | 15/04/2004 | ||
| Case No: | FUL:47/2003 | 24 OCTOBER 2003 | |
| Coram: | STEYTLER J MCLURE J JOHNSON J | 24/10/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROBERT LOIACONO GABRIELLE SALUTO |
Catchwords: | Leave to appeal from a discretionary decision Refusal to grant leave to adduce further evidence in an appeal Policy of finality of litigation Turns on own facts |
Legislation: | Builders Registration Act 1939 (WA), s 12A, s 37, s 41 District Court Rules, O 8 r 30(1) Supreme Court Rules, O 65 r 10 |
Case References: | Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8610; 27 November 1990 Akins v National Australia Bank (1994) 34 NSWLR 155 Baker v Australian Asbestos Insulations Pty ltd (1984) 3 NSWLR 595 Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 14 ALR 174 Building Corporation (WA) Pty Ltd v Earnshaw (2000) 21 SR (WA) 103 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 Electrical Electronics Foundry & Engineering Union (WA Branch) v Hamersley Iron Ltd (1998) 19 WAR 145 Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990 Giorgio v Builders Registration Board of Western Australia, unreported; DCt of WA (Charters DCJ); Library No D990052; 2 December 1997 Goldfield Homes Pty Ltd v Blacker, unreported; DCt of WA (Com Greaves); Library No D970379; 2 December 1997 Good v The Medical Board of Western Australia, unreported; SCt of WA (Anderson J); Library No 940678; 6 December 1994 Guest v Ibbotson (1922) 126 LT 738 Licul v Corney (1976) 50 ALJR 439 Martin v Abbott Australasia Pty Ltd (1981) 2 NSWLR 430 Moursellas v Pharmaceutical Council of Western Australia (1992) 10 WAR 240 Orr v Holmes & Anor (1948) 76 CLR 632 Phillips v Commonwealth [1964] ALR 581 Powell v Streatham Manor Nursing Home [1935] All ER 58 R v Syme; Reynolds & Williams [1970] WAR 153 Re Chennel; Jones v Chennel (1878) 8 Ch D 492 Victim's Compensation Fund Corporation v Hill [2000] NSWCA 75 Wilson v The Prothonotary [2000] NSWCA 233 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : LOIACONO -v- SALUTO [2004] WASCA 74 CORAM : STEYTLER J
- MCLURE J
JOHNSON J
- Appellant
AND
GABRIELLE SALUTO
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
Citation Number : [2003] WADC 54
File Number : APP 115 of 2001
(Page 2)
Catchwords:
Leave to appeal from a discretionary decision - Refusal to grant leave to adduce further evidence in an appeal - Policy of finality of litigation - Turns on own facts
Legislation:
Builders Registration Act 1939 (WA), s 12A, s 37, s 41
District Court Rules, O 8 r 30(1)
Supreme Court Rules, O 65 r 10
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D A Lenhoff
Respondent : Mr G M Slattery
Solicitors:
Appellant : Holborn Lenhoff
Respondent : Arns & Associates
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8610; 27 November 1990
(Page 3)
Case(s) also cited:
Akins v National Australia Bank (1994) 34 NSWLR 155
Baker v Australian Asbestos Insulations Pty ltd (1984) 3 NSWLR 595
Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 14 ALR 174
Building Corporation (WA) Pty Ltd v Earnshaw (2000) 21 SR (WA) 103
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Electrical Electronics Foundry & Engineering Union (WA Branch) v Hamersley Iron Ltd (1998) 19 WAR 145
Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990
Giorgio v Builders Registration Board of Western Australia, unreported; DCt of WA (Charters DCJ); Library No D990052; 2 December 1997
Goldfield Homes Pty Ltd v Blacker, unreported; DCt of WA (Com Greaves); Library No D970379; 2 December 1997
Good v The Medical Board of Western Australia, unreported; SCt of WA (Anderson J); Library No 940678; 6 December 1994
Guest v Ibbotson (1922) 126 LT 738
Licul v Corney (1976) 50 ALJR 439
Martin v Abbott Australasia Pty Ltd (1981) 2 NSWLR 430
Moursellas v Pharmaceutical Council of Western Australia (1992) 10 WAR 240
Orr v Holmes & Anor (1948) 76 CLR 632
Phillips v Commonwealth [1964] ALR 581
Powell v Streatham Manor Nursing Home [1935] All ER 58
R v Syme; Reynolds & Williams [1970] WAR 153
Re Chennel; Jones v Chennel (1878) 8 Ch D 492
Victim's Compensation Fund Corporation v Hill [2000] NSWCA 75
Wilson v The Prothonotary [2000] NSWCA 233
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
(Page 4)
1 STEYTLER J: I have had the advantage of reading the judgment of McLure J. It was for the reasons there expressed that I joined in the decision to refuse the application for leave to appeal.
2 MCLURE J: The applicant applied for leave to appeal from the decision of Fenbury DCJ refusing the applicant's application for leave to adduce further evidence in the hearing of an appeal against a decision of the Building Disputes Tribunal ("Tribunal"). At the conclusion of the hearing the Court dismissed the application for leave to appeal. These are my reasons for doing so.
3 The Tribunal is established under the Builders' Registration Act 1939 (WA) ("Act") to, among other things, hear and determine complaints as to whether any "building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory" (s 12A of the Act).
4 When exercising this jurisdiction the Tribunal must be constituted by the chairperson or deputy chairperson, both of whom must be a legal practitioner, a representative of the interests of consumers and a representative of the interests of builders. The Tribunal is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms and is not bound by the rules of evidence (s 37).
5 A party to a proceeding before the Tribunal may appeal to the District Court from a Tribunal decision (s 41). As both parties to the application in this Court agreed that the appeal to the District Court was an appeal by way of rehearing not an appeal de novo, the Court, without deciding the issue, proceeded on that basis.
6 A rehearing of this nature is a rehearing of the merits based on the transcript and documentary evidence before the primary tribunal and any additional evidence which is permitted by leave under O 8 r 30(1) of the District Court Rules (see Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322).
Background
7 The background to the matter is as follows. In April 2000 the respondent complained to the Tribunal of alleged inadequate design of the lower ground floor cement slab of her two storey dwelling resulting in badly cracked ceramic floor tiles. The appellant, an engineer, did the engineering drawings for the ground floor slab. The respondent was a
(Page 5)
- design drafter. At the time of the design and construction of the dwelling, the appellant and respondent were married to each other. At around the time of the cracking, earth works relating to a major road extension were being undertaken not far from the dwelling. The respondent compromised a claim she made against the road builder.
8 The Tribunal conducted a hearing on 7 September 2000. A booklet of relevant documents was prepared and, I infer from my reading of the transcript, distributed to both parties in advance of the hearing. The booklet contained a report from a Mr G Purich of Structerre, Consulting Chartered Engineers and a Mr J Fisher, a senior loss adjuster and civil engineer. Both commented on the relationship between the design of the concrete slab and its connection with the cracking of the ceramic tiles.
9 Both parties appeared in person in the Tribunal. Neither was legally represented although they were entitled to legal representation if they so chose. Both parties made oral submissions largely by reference to the documents before the Tribunal. No witnesses were called by either side. The applicant did not tender or provide to the Tribunal any independent expert evidence. The Tribunal found that the slab design was deficient and caused or materially contributed to the cracking of the tiles. The Tribunal ordered the applicant to pay $11,577 to the respondent.
10 The applicant appealed to the District Court. His grounds of appeal were to the effect that the finding was against the weight of the evidence, that the respondent had lost her entitlement to claim from the applicant as she had compromised her claim with the road builder and finally that the damage was suffered while the parties were co-owners of the property and the respondent was therefore only entitled to 50 per cent of the amount awarded.
11 The applicant applied to adduce in evidence a new report dated 3 December 2002 from a firm of Consulting Engineers and Designers, Robin Salter & Associates. The thrust of the report is that the extent of the cracking at the dwelling was within industry norms and that the laying of the tiles was substandard.
Legal Principles
12 Order 8 r 30(1) of the District Court Rules states:
"On appeal to the Court a party may, on special grounds only, apply to the Court for special leave to adduce further evidence
(Page 6)
- on questions of fact either by oral examination or by affidavit and the Court has full discretionary power to grant such leave."
13 The requirement for "special grounds" and "special leave" means that the discretion in this rule is at least as circumscribed as the equivalent rule in the Supreme Court Rules, O 65 r 10(2). In relation to the Supreme Court Rules Ipp J in Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8610; 27 November 1990 said at 4:
"The reference to 'special order' in O 65 r 10 implies that 'special' circumstances should exist before the court admits additional or fresh evidence. Conditional upon special circumstances existing, the court is given a very wide discretion to admit such evidence.
In exercising its discretion under O 65 r 10, the court should, of course, continue to bear in mind the powerful policy consideration that there should be finality in litigation. In particular, O 65 r 10 should not be used merely to allow a party to remedy a tactical decision that proved to have unforeseen and disadvantageous consequences, or to reinforce perceived weaknesses in a case already presented."
14 Further, the applicant applies for leave to appeal from a discretionary decision. There is a strong presumption in favour of the correctness of a discretionary judgment and it should be affirmed unless shown to be clearly wrong. The presumption may be overcome if it is shown that there has been error in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters or failing to give weight to or sufficient weight to relevant matters or mistaking the facts: Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 at 627.
Application of Legal Principles
15 The applicant says the decision to refuse leave was wrong primarily because firstly, the Tribunal decided the dispute on the papers and without the relevant witnesses being called and cross-examined, secondly the Deputy Chairman had made remarks which misled the applicant into believing that the Tribunal was favourably inclined to his position and thirdly the parties were not legally represented.
(Page 7)
16 In his grounds of appeal in the District Court the applicant did not rely on any procedural unfairness or breach of the rules of natural justice. Indeed, none is apparent. The parties were content to conduct the hearing in an informal manner on the papers. There is no merit in the first ground. I was also satisfied there was no merit in the second ground. The preparation and gathering of evidence for the hearing should have preceded the hearing. In any event, one member of the three-member Tribunal was in effect and at different times during the hearing putting each party's case to the other and soliciting responsive comments. I was not persuaded that the conduct was misleading or that the applicant was misled. Finally, the fact that the parties were not legally represented in this case is not a weighty factor favouring the grant of leave. The appellant and respondent were the owner builders of the house in question. Both were involved and had experience in the building industry. Both felt able to represent their interests in relation to a relatively small amount of money before a specialist tribunal. The cost to the parties of involving lawyers would likely have far exceeded the amount in issue.
17 None of the matters relied on by the applicant outweigh the public policy in favour of finality of litigation. For these reasons, I concluded that Fenbury DCJ had not erred in the exercise of his discretion to refuse to grant leave.
18 JOHNSON J: I have had the advantage of reading the judgment of McLure J. I agree entirely with it. There is nothing I wish to add.
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