Provatidis v A McFarlane & Sons Pty Ltd - [2021] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
PROVATIDIS v A MCFARLANE & SONS PTY LTD
[2021] SASC 142
Judgment of the Honourable Justice Hughes
10 December 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The appellant sought an extension of time to bring an appeal against a decision of the Magistrates Court that awarded the respondent the sum of $13,291.52 and dismissed the appellant’s counterclaim against the respondent.
Held, per Hughes J, refusing the extension of time to bring the appeal and dismissing the appeal:
1. The reasons that the appellant has submitted to explain the delay in initiating the appeal do not operate in favour of an exercise of the discretion to extend time.
2. The grounds of appeal do not disclose a reasonably arguable case such that it would be in the interests of justice to grant the extension of time to bring the appeal.
Magistrates Court Act 1991 (SA) s 40; Uniform Civil Rules 2020 (SA) r 12.1, r 22.4, r 214.1, referred to.
Jackamarra v Krakouer (1998) 195 CLR 516; Gallo v Dawson (1990) 93 ALR479; [1990] HCA 30; Kowalski v Sim & Ors [2019] 96 SASCFC 96; NM Civil Engineering v Sunshine Coast Surf Club [1987] 2 Qd R 401, applied.
Reyes v Dental Board of South Australia (2002) 83 SASR 551, discussed.
WorkCover Corp v John Holland Group Pty Ltd [2014] SADC 202; Abalso v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472, considered.

PROVATIDIS v A MCFARLANE & SONS PTY LTD
[2021] SASC 142
Magistrates Appeal: Civil
HUGHES J
Overview and outcome

The appellant, Ms Provatidis, owns a yacht. The respondent, A McFarlane & Sons Pty Ltd, is a ship builder and repair business. The yacht needed repairs and the appellant placed it with the respondent for that purpose in late 2017. There was a dispute about the cost of the repairs and the respondent brought a claim in debt against the appellant in the Magistrates Court. There was a dispute about the efficacy of the repairs and the appellant brought a counterclaim against the respondent.
The claim and counterclaim were heard together in a two-day trial conducted on 11 and 12 August 2020. Judgment was delivered on 3 September 2020. The Magistrate awarded the respondent the sum of $13,291.52 and dismissed the appellant’s counterclaim against the respondent.
The appellant did not pay the judgment sum. On 12 May 2021, the appellant initiated an appeal of the judgment in the Supreme Court.
Several preliminary hearings were held to advise the parties of the steps required to prepare the matter for appeal. The appellant has, since those preliminary hearings commenced, been unrepresented and participating in preliminary hearings by phone from Coober Pedy where she lives. This decision concerns whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Provatidis v A McFarlane & Sons Pty Ltd

Details

AGLC: Provatidis v A McFarlane & Sons Pty Ltd [2021] SASC 142
Case: [2021] SASC 142
Decision Date: 10 December 2021

CaseChat Overview and Summary

The appeal in Provatidis v A McFarlane & Sons Pty Ltd involved a dispute between the appellant, who owned a yacht, and the respondent, a marine repair company. The respondent sought to recover $13,291.52 for work performed on the yacht, while the appellant claimed that the work was incomplete and substandard, and counterclaimed for damages caused to the boat. The case was heard in the Magistrates Court of South Australia, with the appeal subsequently brought before the Supreme Court of South Australia.

The legal issues before the Supreme Court were whether the appellant's application for an extension of time to bring her appeal should be granted and whether the appeal itself should be dismissed. The appellant argued that she had a reasonable case for an extension of time, and that the grounds of appeal disclosed a reasonably arguable case. The respondent, on the other hand, contended that the appellant had not established an arguable case for an extension of time and that the grounds of appeal were not sufficiently strong to warrant such an extension.

The Supreme Court found that the appellant's reasons for the delay in initiating the appeal did not support an exercise of the discretion to extend time. The court also held that the grounds of appeal did not disclose a reasonably arguable case, and that it would not be in the interests of justice to grant the extension of time to bring the appeal. Consequently, the appellant's application for an extension of time was dismissed, and the appeal was dismissed in its entirety.

ORDERS:
1. The reasons that the appellant has submitted to explain the delay in initiating the appeal do not operate in favour of an exercise of the discretion to extend time.
2. The grounds of appeal do not disclose a reasonably arguable case such that it would be in the interests of justice to grant the extension of time to bring the appeal.
3. The appeal is dismissed.
4. The parties will be heard as to costs.

Orders

Orders of the court

Held, per Hughes J, refusing the extension of time to bring the appeal and dismissing the appeal:

1. The reasons that the appellant has submitted to explain the delay in initiating the appeal do not operate in favour of an exercise of the discretion to extend time.

2. The grounds of appeal do not disclose a reasonably arguable case such that it would be in the interests of justice to grant the extension of time to bring the appeal.

Background

Background to the litigation

For the reasons that follow, I refuse the appellant’s application for an extension of time to bring her appeal. It is therefore unnecessary to hear the parties further on the substantive appeal and the appeal is dismissed.Brief factual background Work was performed on the appellant’s yacht by the respondent at its premises in Port Adelaide. It was not disputed that the appellant paid the respondent a sum of $3,600.00 at one point whilst the yacht was under repair and the Magistrate found that this payment was made so that the respondent could purchase from a third party a part (a bow thruster) to install on the yacht. The respondent instituted the original proceedings to recover the amount invoiced for the works performed on the yacht in the sum of $13,291.52. The appellant contended that the works were incomplete and not to an adequate standard such that she was not liable to provide any further payment. The appellant counterclaimed a sum of $11,555.00 against the respondent for alleged damage caused to the boat, cleaning costs and charges incurred for the boat being in hardstand for 10 days while the works were being performed. The appellant was represented prior to, but not at, trial. The respondent has been represented throughout the proceedings. The appellant gave evidence at the trial and called a lay witness, Mr Kapetanakis. The respondent called Mr McFarlane, a qualified shipwright and marine surveyor who undertook some of the work and oversaw other parts of the work performed on the yacht. In the decision, the Magistrate made the following key findings in relation to the respondent’s claim:·The appellant engaged the respondent to undertake work on the yacht;·Work was performed between 5 and 21 December 2017;·The appellant disputed the completeness and quality of the work and did not pay the respondent’s invoice but paid $3,600 which was the amount required for the purchase of a bow thruster which was installed on the yacht;·There was no quotation provided before the works commenced but the charge was to be by the hour and would take about a week;·Mr Kapetanakis was present on the yacht for much of the time that the respondent’s employees and trades worked on the yacht, whereas Ms Provatidis was in Coober Pedy for most of the time that the yacht was worked on;·Additional works were requested by Mr Kapetanakis on behalf of Ms Provatidis during the period that the works were being undertaken;·The hours of work performed on the yacht were recorded in Mr McFarlane’s diary;·The appellant’s account of the amount of work done on the yacht was rejected;[1]·The works were completed as submitted by the respondent;·The appellant’s claim that the bow thruster was not fit for purpose was rejected because it was not wired up and tested as the appellant did not engage an electrician;·The respondent’s invoice represented a fair and reasonable sum for the work performed;·The sum of $3600 was paid by the appellant to the respondent and was payment for the bow thruster and not for labour; and·The appellant did not, contrary to her evidence, make a payment of $5000 to Mr McFarlane in cash in person in connection with the works.[1] McFarlane & Sons P/L v Provatidis [2020] SAMC 15 at [20].

Evidence

Evidence Before The Court

The appellant has not established an arguable case in respect of this ground of appeal relevant to the discretion to extend time to bring the appeal.Ground 2 – Refusal to admit into evidence documents tendered by the respondent about an expert opinion This ground of appeal appears to refer to a bundle of documents that the Magistrate refused to admit into evidence on the first day of trial during the appellant’s cross-examination of the respondent’s witness, Mr McFarlane.[11] The documents were objected to by the respondent’s counsel on the basis that they were emails, quotes and estimates from third parties regarding the yacht that purported to give opinions about the adequacy of the bow thruster on the yacht and the desirability of installing a larger bow thruster. The respondent formed the view from the appellant’s descriptor of the documents that they purported to contain expert opinion. Counsel for the respondent alleged prejudice arising from the appellant’s failure to discover or disclose the documents prior to the trial. Counsel for the respondent further objected to the proposed tender of the documents without calling the authors as witnesses. [11] See, Transcript of hearing on 11 August 2020 in AMCCI-19-1261 at pp. 52-58. In refusing to admit the documents into evidence, the Magistrate made the following ruling:[12]The claim was commenced on 3 April 2018 (sic) and the applicant obtained a default judgment on 23 May 2019. The respondent applied to have that judgment set aside and was successful in doing so. An order was made setting aside the default judgment on 22 August 2019. This matter has been on foot now for nearly 12 months. The respondent was granted leave to file her amended defence and cross-claim on 31 January 2020. There’s therefore, been a period of some months from at least January this year, if not earlier, when the respondent ought to have had in mind how she was going to prosecute her claim and the experts reports that she was going to rely on so that we are not in the situation that we are today, where the applicant would be caught by surprised (sic) and prejudiced if these five pages were sought to be tendered. Particularly, at this point where Mr McFarlane, the witness for the applicant is under cross-examination and his counsel is not able to take instructions. I uphold the objection to the tendering of these documents so they won’t be allowed to be produced in evidence. For reasons of the late discovery and also that they are not compliant with the rules as to experts reports and that those expert reports ought to have been – any experts reports ought to have been served in compliance with previous orders made by me or an application ought to have been made before today seeking leave as I observed in my remarks on 18 June 2020. [12] Transcript of hearing on 11 August 2020 in AMCCI-19-1261 at pp 57-58. I do not consider that the ground of appeal based on the Magistrate’s refusal to admit the documents is arguable. It was clearly open to the Magistrate to refuse to admit the evidence because of the unfairness it brought to the respondent, and the appellant’s unwillingness to make the authors of the documents available for cross-examination in circumstances in which their evidence would almost certainly be disputed. It is further evident from the Magistrate’s ruling that case flow management demanded that the appellant be required to meet the case without further delay after the opportunities for preparation that had been granted to her in the pre-trial stages.

Decision

Reasons for decision

Notwithstanding the appellant’s unrepresented status, it would be ambitious and improper to embark on a consideration of grounds that the appellant might have added to her filed grounds should she have taken advantage of the additional time granted to her to do so. However, it may be observed that a significant determinant of the outcome of the original proceedings was the findings of credit made by the Magistrate which were not favourable to the appellant. The Magistrate preferred the respondent’s witness regarding the agreements about the work to be performed on the yacht.[15] The appellant’s witness, Mr Kapetanakis gave evidence that contradicted the appellant’s evidence on the records that had been kept regarding the work performed.[16] The Magistrate expressed “serious concerns about the reliability of his and Ms Provatidis’ evidence”[17] and about their honesty in respect of her claim to have paid the respondent an additional $5000.[18] On the issues central to the success of the respondent’s claim, the Magistrate accepted the evidence of the respondent’s witness, Mr McFarlane, and preferred it over the evidence of Ms Provatidis or Mr Kapetanakis where the evidence was inconsistent. Had she been granted an extension of time, the appellant would have faced a significant hurdle in persuading the Court to conclude that these conclusions, drawn by the Magistrate during the trial having seen and heard the appellant and the other witnesses, should be overturned so that findings in favour of the appellant’s case could be made.[19][15] McFarlane & Sons P/L v Provatidis [2020] SAMC 15 at [13].[16] Ibid at [19]. [17] Ibid at [20].[18] Ibid at [38].[19] See, Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472.Conclusion Consideration of each of the relevant factors militates against the grant of an extension of time but consideration of the factors in aggregation creates a strong case against such an extension of time for the bringing of the appeal. Accordingly, the appellant’s application for an extension of time to bring the appeal is dismissed, and the appeal is dismissed in its entirety. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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