Parfenova v Power LEGENDS Pty Ltd

[2019] WASCA 168

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PARFENOVA -v- POWER LEGENDS PTY LTD  [2019] WASCA 168

CORAM:   MURPHY JA

MITCHELL JA

HEARD:   25 OCTOBER 2019

DELIVERED          :   25 OCTOBER 2019

PUBLISHED           :   25 OCTOBER 2019

FILE NO/S:   CACV 102 of 2019

BETWEEN:   IRYNA PARFENOVA

Appellant

AND

POWER LEGENDS PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number             :   APP 58 of 2018

Catchwords:

Civil contractual dispute determined as a minor claim in the Magistrates Court - Whether there was a denial of natural justice in the magistrate's dealing with the case - Whether proposed appeal has any reasonable prospects of success - Whether an extension of time to file an appellant's case should be granted - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 32, s 40, s 42

Result:

Application for an extension of time to file an appellant's case dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

Case(s) referred to in decision(s):

Defendi v Szigligeti [2019] WASCA 115

REASONS OF THE COURT:

1. At the conclusion of the hearing on 25 October 2019, we dismissed the appellant's application for an extension of time to file an appellant's case and dismissed the appeal.  These are our reasons for making those orders.

Background

1. Between late 2014 and March 2015, the respondent, a commercial and residential electrician service, carried out electrical work at the appellant's house in Wellard.  The respondent issued an invoice claiming $4,750.86 for that work.[1] 

   [1] Magistrates Court ts 10/5/18, 5 - 6.

2. The appellant refused to pay, contending that she had been overcharged for the services and materials, and that the work was defective.[2]

   [2] Magistrates Court ts 10/5/18, 5 - 8.

Magistrates Court proceedings

1. On 20 May 2016, the respondent commenced proceedings in the Magistrates Court, claiming the invoice amount and the court fee.[3]  The claim was subsequently reduced to $2,950.86.[4]  The appellant did not file a counterclaim.[5]

   [3] Magistrates Court Consumer/Trader Claim Minor Case lodged 20 May 2016.

   [4] Magistrates Court ts 10/5/18, 6 - 7.

   [5] In this regard, see Magistrates Court ts 10/5/18, 3.

2. The Magistrates Court proceedings were conducted under the minor cases procedure established by pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Act).

3. A trial took place in the Magistrates Court from 29 - 30 January 2018 before Magistrate Walton.  The appellant, whose native language is Russian, was self-represented.  Mr Jones, a director of the respondent, represented the respondent.  Both the appellant and Mr Jones gave evidence and were cross-examined by the other person.  A Russian interpreter was present throughout the proceedings and assisted the appellant.

4. The magistrate reserved judgment, which was delivered on 10 May 2018.  The magistrate identified and answered the issues as follows:[6]

   [6] Magistrates Court ts 10/5/18, 7.

   (1)Was there a contract between the respondent and the appellant?  If so, what were the terms of the contract?

   Answer: Yes.  The terms were that the respondent would provide electrical contracting services to the appellant at her request, and the respondent would use reasonable care and skill in the application of their work and use goods of merchantable quality and fit for purpose.  The appellant would pay at the reduced rate of approximately $80 per hour for that work, and the costs of materials with any requisite mark-up.[7]

   [7] Magistrates Court ts 10/5/18, 11, 19.

   (2)If there was no contract between the parties, was the contract frustrated?  If so, did the respondent have a claimed based on quantum meruit?

   Answer: Not applicable.

   (3)If there was a contract, was it breached by the appellant in not paying the outstanding balance? 

   Answer: Yes.

   (4)Alternatively, did the respondent breach the contract by providing defective services and overcharging for services and materials?

   Answer: No. 

5. The magistrate assessed the respondent's claim and granted judgment for the respondent against the appellant in the sum of $1,119.33 plus costs of $106.20.[8]  This was less than the amount claimed by the respondent in the proceedings.

   [8] Magistrates Court ts 10/5/18, 19 - 20.

District Court proceedings

1. On 30 May 2018, the appellant filed an appeal notice in the District Court of Western Australia, on the sole ground that:

   Investigation not finish yet!

   By affidavit sworn the same day, the appellant deposed:[9]

   I [appeal] this document because:

   - My right to protection have been ignored.

   - The judge did not give a legal and objective assessment of the illegal action of the [respondent] …

   [9] Affidavit of Iryna Parfenova sworn 30 May 2018.

2. On 27 August 2018, the appellant filed further and better particulars of the appeal.  In that document, the appellant in essence repeated the complaints made at trial and indicated that she wanted the respondent to pay her compensation of $6,500.

3. On 6 September 2018, the appellant filed an application in the appeal to the District Court indicating:

   [C]ourt was [r]un apart of law

   Investigation not finished

   I'm main [witness]; not get right to say my word.

   To adduce new evidence

4. Under s 32(2)(a) and (3), read with s 40, of the Act a party to a minor case who is dissatisfied with the judgment of a magistrate may appeal to the District Court. However, the permissible grounds of appeal are confined, relevantly for present purposes, to an allegation that 'in dealing with the minor case there was a denial of natural justice'.[10]

   [10] Section 32(3)(b) of the Act.

5. On 23 November 2018, the primary judge dismissed the appeal to the District Court.  His Honour did so on the basis that the appellant had not established any breach of natural justice by the magistrate.[11]  His Honour delivered ex tempore reasons for his decision.

   [11] District Court appeal ts 26.

6. The respondent did not take part in the appeal to the District Court.[12]

   [12] District Court appeal ts 26.

The appeal to this court

1. On 5 September 2019 (about 10 months after the primary judge's decision), the appellant filed an appeal notice in this court against the decision of the primary judge.  That appeal notice indicated that an extension of time within which to appeal was required.

2. Section 42(1) of the Act provides for an appeal to this court from the primary judge's decision. Section 42(2) provides that an appeal cannot be commenced more than 21 days after the date of judgment, unless this court gives leave to do so.

3. On 25 September 2019, the appellant filed an application in the appeal seeking:

   • Review the court's decision from 10.05.2018.

   • [T]o make company to lead evidence on every issue[.]

   • [P]resent me as a witness to give me side of the story.

   • I need report on every dollar in invoice standard inflated 10 time.

4. By affidavit sworn 25 September 2019 in support of that application, the appellant deposes:

   The [respondent] … is engaged [with] 5 years in illegal extor[t]ion of money from customer in especial[l]y large size.

   He uses different types of financial scams.

   I ask the panel of judges to carefully ready the 7 types of scams that are in the attribute of [the respondent].

   And then I will give you the details of my problem with [the respondent].

   The appellant annexes presently irrelevant documents.

5. On 2 October 2019, the Court of Appeal Registrar ordered that the appellant file an affidavit of personal service on the respondent by 9 October 2019.  On 3 October 2019, the appellant filed an application in the appeal seeking orders for substituted service.  The appellant's affidavit of the same date appears to indicate that she has tried to contact the respondent several times without success. 

6. An appellant's case was due on 10 October 2019.[13]  On 7 October 2019, the appellant filed an application in the appeal for an extension of time in which to file her appellant's case.  The appellant's supporting affidavit of the same date indicates that:

   (1)The appellant's work at a hospital restricts the time she has available to prepare her case.

   (2)The appellant has limited fluency in English, which requires her to translate text to Russian and then back into English.

   (3)She needs to finish the Appellant's Legal Authorities section of her appellant's case.

   [13] Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) r 32.

7. On 11 October 2019, the Registrar issued a notice to attend on 25 October 2019 for the court to consider the applications in an appeal filed on 25 September 2019, 3 October 2019 and 7 October 2019.

8. On 22 October 2019, the appellant lodged a document described as an appellant's case for filing at the Court of Appeal registry. The appellant's document was not accepted for filing as it was lodged out of time and did not comply with the Rules.

Application for an extension of time to file the appellant's case

1. We begin by considering the appellant's application for an extension of time to file an appellant's case.

Proposed grounds of appeal

1. The document sought to be relied upon as the appellant's case contains a number of unsubstantiated allegations about the conduct of the primary judge which do not arguably justify allowing the appeal.  The only potentially available ground of appeal would be that the primary judge erred in failing to find that the magistrate denied natural justice to the appellant.  It is therefore appropriate to focus on the aspects of the appellant's proposed grounds which seek to impugn the fairness of the proceedings before the magistrate.

2. In that respect, the proposed grounds relevantly contend, in substance, that the appellant was not given the right to speak, was not granted a right to present her version of events, was denied the right to provide evidence and was ignored by the magistrate.

3. In her oral submissions before us, the appellant contended that the magistrate never explained her right to defend herself and did not give her an opportunity to do so.  The appellant submits that the magistrate did not pay a lot of attention to what she had to say.  The appellant says that she was not given the opportunity to give evidence and explain her view, or to prove her allegations that the respondent's claim was fraudulent.  The appellant said that she expected both persons to give evidence and be cross-examined, but that did not occur.  The appellant also submits that the interpreter did not have the chance to interpret what was being said, so she could not really understand the evidence given by Mr Jones.

4. The appellant also advanced submissions to the effect that the magistrate erred in his assessment of what she owed, but that is not an available ground of appeal from a decision in a minor case.

Conduct of the proceedings before the magistrate

1. The matters referred to at [25] - [26] above, if established by the evidence, would constitute a breach of the rules of natural justice.[14]  However, having reviewed the transcript of the proceedings in the Magistrates Court, we are satisfied that there is no arguable factual basis for the appellant's allegations.

   [14] For a recent summary of the principles relating to the hearing rule, see Defendi v Szigligeti [2019] WASCA 115 [45] - [48].

2. At the beginning of the trial, the appellant indicated that she could understand English well if it was spoken slowly, but could not understand if it was spoken quickly.  She also indicated that she had a 'bit of [a] hearing problem'.  The magistrate indicated that he would speak loudly so she could hear, and an interpreter was sworn in to assist the appellant.[15]  The magistrate gave an appropriate explanation to the parties (who were both self-represented) as to the relevant procedure.[16]

   [15] Magistrates Court ts 29/1/18, 3 - 4.

   [16] Magistrates Court ts 29/1/18, 9 - 10.

3. The magistrate then asked Mr Jones a number of questions designed to elicit his evidence in chief.  At various points, the magistrate asked the appellant whether or not she agreed with what was being put.[17]  The magistrate assisted the appellant to conduct an extensive cross‑examination of Mr Jones which ran over the afternoon of 29 January 2018 until the early afternoon of 30 January 2018.[18]

   [17] Magistrates Court ts 29/1/18, 11 - 39.

   [18] Magistrates Court ts 29/1/18, 41 - 78; Magistrates Court ts 30/1/18, 81 - 112.

4. The appellant gave evidence over the remainder of 30 January 2018, assisted by the magistrate to elicit relevant evidence.[19]  The appellant was cross-examined by Mr Jones.[20]

   [19] Magistrates Court ts 30/1/18, 112 - 137.

   [20] Magistrates Court ts 30/1/18, 138 - 145.

5. At the conclusion of her evidence, the appellant indicated to the magistrate that she did not intend to call any other witnesses.[21]

   [21] Magistrates Court ts 30/1/18, 145.

6. The appellant was then given, and took, the opportunity to make closing submissions both at the end of the hearing on 30 January 2018[22] and prior to the magistrate delivering his Honour's reserved decision on 10 May 2018.[23]  Prior to the delivery of the magistrate's decision, the appellant expressed her satisfaction with the fairness of the proceedings in the following terms (through the interpreter):[24]

   So now I would like to say thank you to God and thank you to the court, to the fair court, that they did give me the opportunity and did give us the case to look at – and, yes.

   [22] Magistrates Court ts 30/1/18, 147.

   [23] Magistrates Court ts 10/5/18, 2 - 4.

   [24] Magistrates Court ts 10/5/18, 4.

7. At no time during the trial did the appellant complain that matters were not being properly interpreted for her.  We see no basis in the transcript for concluding that the appellant did not understand what was being said during the proceedings. 

8. The magistrate then delivered oral reasons, which took account of the appellant's case at trial.  He allowed some but not all items claimed by the respondent.

Disposition of application for an extension of time

1. Having regard to the transcript of proceedings, there is no reasonable basis for the appellant to contend that she was denied a reasonable opportunity to present her case, or that the magistrate failed to have regard to what she had to say.  To the contrary, the transcript clearly reveals that the magistrate conducted the proceedings in an impeccably fair and impartial manner.  There is no reasonable basis for contending that the appellant was denied natural justice.  The primary judge was clearly correct to so hold, and to dismiss the appellant's appeal to the District Court.

2. The appeal to this court is wholly without merit and has no reasonable prospects of success.  It would be futile to extend the time for the appellant to file and serve her appellant's case, which discloses no reasonably arguable grounds of appeal.  The defects in the proposed appellant's case are not capable of being remedied by amendment.  The appeal is doomed to fail, and it is in the interests of justice that it be brought to a conclusion at this time.

Conclusion

1. For the above reasons, we dismissed the application for an extension of time to file the appellant's case and ordered that the appeal be dismissed.  It was therefore unnecessary to deal with the other matters raised by the applications in an appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ET
Associate to the Honourable Justice Mitchell

25 OCTOBER 2019