JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MILLER -v- HERBERT [2021] WADC 107
CORAM: PRIOR DCJ
HEARD: 23 AUGUST 2021
DELIVERED : 5 NOVEMBER 2021
FILE NO/S: APP 35 of 2021
BETWEEN: MARK MILLER
Appellant
AND
TYRON ALAN HERBERT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE LEMMON
File Number : ROC/CTC/1149/2019
Catchwords:
Appeal - Magistrates Court - Application by claimant to amend his claim from a general procedure (consumer/trader) claim to a general procedure claim at trial - Adjournment of trial - Consequential costs order - Turns on own facts
Legislation:
District Court Rules 2005 (WA), r 7A, r 50(1), r 53(2)
Magistrates Court (Civil Proceedings) Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 3, s 17, s 40(1), s 40(4), s 43(3)
Magistrates Court Act 2004 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Ms N Milosevic |
| Respondent | : | Mr C Silver |
Solicitors:
| Appellant | : | Mountains Lawyers Pty Ltd |
| Respondent | : | Chad Silver & Associates |
Case(s) referred to in decision(s):
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Avsar v Binning [2009] WASCA 219
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Dodds v Kennedy [2011] WASCA 32
Jones v Darkan Hotel [2014] WASCA 133
Norbis v Norbis (1986) 161 CLR 513
PRIOR DCJ:
Introduction
This is an appeal against the orders of Magistrate Lemmon made on 21 May 2021 in proceedings commenced by Mr Herbert against Mr Miller in the Rockingham Magistrates Court.
The proceedings are in relation to a breach of an oral contract between the parties.
Mr Herbert claims that he entered into an oral contract with Mr Miller to sell him a sprint car which Mr Miller would modify for him. Mr Herbert has not received the sprint car. Mr Herbert claims a total of $20,000 for monetary instalments paid to Mr Miller and the value of parts he gave to Mr Miller to install in the sprint car.
Mr Miller has counterclaimed for $1,750 being the cost of a different chassis from the original chassis he put on the sprint car.
The decision the subject of appeal
The claim was listed for trial before Magistrate Lemmon on 21 May 2021. The trial dates for the matter had been vacated on two previous occasions due to unavailability of counsel and insufficient court time available. Mr Herbert had changed his legal representation a number of times leading up to the trial.
At the beginning of the trial on 21 May 2021 both parties, through their legal counsel, indicated they were both ready to proceed to trial.
Before the…
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- AGLC
- Miller v Herbert [2021] WADC 107
- Case
- [2021] WADC 107
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the Court of Appeal had to decide were whether the magistrate made any legal, factual, or discretionary errors in his decision, and if so, whether these errors warranted the intervention of the appeal court. The court had to assess if the magistrate's decision was reasonable and just, considering the principles established in previous cases such as Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Allesch v Maunz. Additionally, the court had to consider whether the magistrate exercised his discretion correctly, taking into account the well-known principles enunciated in House v The King and elaborated upon in Norbis v Norbis.
The Court of Appeal found that Mr Miller had not demonstrated any legal, factual, or discretionary error on the part of the magistrate. The court held that the magistrate's decision was reasonable and just, and that there was no basis for the appeal court to intervene. The appeal court emphasised that the existence of such an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal. Since no such error was demonstrated, the appeal was dismissed, and the magistrate's decision stood.
[7] Miller v Herbert [2021] WASCA 157.
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
Mr Miller must demonstrate and satisfy me that there was some legal, factual, or discretionary error on the part of the magistrate: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission.[1] If such an error has been made, I can substitute my decision for that of the magistrate. If no error is shown, I cannot intervene.[2][1] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203.[2] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. The fact that Mr Miller is disappointed with the result does not mean that the appeal court is able to intervene. Mr Miller must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitled Mr Miller to the orders or relief that he seeks.[3][3] Avsar v Binning [2009] WASCA 219 [37]. So far as a discretionary error is concerned, the well‑known principles enunciated in House v The King[4] are applicable. Before the magistrate's discretion should be reviewed, it must appear that some error has been made in exercising the discretion, such as acting on a wrong principle, allowing extraneous or irrelevant matters to guide or affect him, or mistaking the facts or failing to take into account some material consideration. Alternatively, if it appears upon the facts that it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion even though the error may not be discoverable.[5][4] House v The King(1936) 55 CLR 499.[5] See alao Dodds v Kennedy [2011] WASCA 32 [4]. In Norbis v Norbis,[6] Mason and Deanne JJ made the following comments elaborating on the principles set out in House v The King:Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.The principles enunciated House … were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision‑making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of such an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.[6] Norbis v Norbis (1986) 161 CLR 513, 518 - 519.