Rankilor v Jerome Pty Ltd
[2006] WASCA 281
•22 DECEMBER 2006
RANKILOR -v- JEROME PTY LTD [2006] WASCA 281
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 281 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:31/2006 | 3 OCTOBER 2006 | |
| Coram: | STEYTLER P WHEELER JA | 21/12/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time in which to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | WENDY RANKILOR JEROME PTY LTD |
Catchwords: | Prerogative writs Certiorari Decision of Small Claims Tribunal Whether denial of natural justice Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 3 r 5 Small Claims Tribunal Act 1974 (WA), s 19, s 20(1) Supreme Court (Court of Appeal) Rules 2005 (WA), r 5 |
Case References: | FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Gallo v Dawson (1990) 64 ALJR 458 Gallo v Dawson (No 2) (1992) 66 ALJR 859 Jackamarra v Krakouer (1988) 195 CLR 516 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RANKILOR -v- JEROME PTY LTD [2006] WASCA 281 CORAM : STEYTLER P
- WHEELER JA
- Applicant
AND
JEROME PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MILLER J
File No : CIV 1510 of 2005
Catchwords:
Prerogative writs - Certiorari - Decision of Small Claims Tribunal - Whether denial of natural justice - Turns on own facts
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Legislation:
Rules of the Supreme Court 1971 (WA), O 3 r 5
Small Claims Tribunal Act 1974 (WA), s 19, s 20(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5
Result:
Application for extension of time in which to appeal refused
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : No appearance
Solicitors:
Applicant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Gallo v Dawson (1990) 64 ALJR 458
Gallo v Dawson (No 2) (1992) 66 ALJR 859
Jackamarra v Krakouer (1988) 195 CLR 516
Case(s) also cited:
Nil
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1 STEYTLER P: This is an application for an extension of time in which to appeal. The proposed appeal is against the decision of the primary Judge dismissing an originating summons brought by the applicant for an order nisi for the issue of a writ of certiorari quashing orders made by a referee of the Small Claims Tribunal on 14 February 2005.
2 Section 19 of the Small Claims Tribunal Act 1974 (WA) provides that no writ of certiorari shall be given in respect of a proceeding taken before a Small Claims Tribunal or in respect of any order made therein unless the court before which such writ is sought is satisfied that the Tribunal had no jurisdiction conferred by the Act to take the proceeding (a limited form of jurisdictional error) or that there has occurred in the proceeding a denial of natural justice to any party to the proceeding.
The dispute that arose before the Small Claims Tribunal
3 It seems from the materials made available to us (and we are considerably hampered by the fact that there is no transcript of the proceedings in the Tribunal) that, on 6 September 2004, the applicant purchased a leather sofa bed from a company, Jerome Pty Ltd, trading as Barkers Discount Furniture Store ("Barkers") for $599. The applicant took the sofa bed home. When she placed it in her house she noticed that two of the bolts in the bottom of the bed were loose. She immediately rang Barkers to complain. In response, an employee of Barkers, Mr Jason Dymock, went to the applicant's home and effected repairs to the sofa bed. The applicant says that this was done without her permission and that she had told Barkers that she wanted a refund. Whatever the position in that respect might have been, Dymock effected the repairs, as I have said. He replaced the two bolts with screws. Once he had done so, he gave the applicant what she describes as "a 100 per cent verbal guarantee that it was fixed and would be okay". Notwithstanding this, she made repeated telephone calls to Barkers asking if she could have her money refunded.
4 A friend of the applicant, Mr Keith Cannon, looked at the sofa bed. He told the applicant that the small wood screws that had been used to repair it were inadequate. The applicant says that, after this, she had a number of unsatisfactory conversations with the manager of the Barkers' store at which she had bought the bed. She said that this man identified himself as Mr Alan Smith.
5 On 22 September 2004 the applicant lodged a claim against Barkers at the Small Claims Tribunal in respect of the defective sofa bed. She initially claimed a sum of $1000 but, two days later, increased this to $3000. She informed the Registrar of the Tribunal that, having shopped
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- around, she had learned that the cost of replacing the sofa bed with a new leather sofa bed would be somewhere between $2000 and $3000.
6 The claim was heard on 25 November 2004. The applicant attended together with Mr Cannon, who gave evidence as regards the state of the sofa bed. Barkers was represented by Mr Alan Cohen (the man who, the applicant said, had previously identified himself as Mr Smith). He is a director and shareholder of Jerome Pty Ltd. Having heard from both sides, the Referee ordered Barkers to refund to the applicant the purchase price of $599 upon the condition that she returned the sofa bed to Barkers in the same condition as it had been when sold, encompassing, of course, the defects of which she complained.
7 On 29 November 2004 Barkers collected the sofa bed from the applicant's house. On that day, Mr Cohen wrote to the Registrar of the Tribunal informing it that the sofa bed had sustained a deep scratch in the front face of the sofa that had been caused by the applicant's cat. He said that, in its current condition, the sofa would be "almost unsaleable" but that he might be able to have the leather repaired at an estimated cost of around $200.
8 On the same day, Mr Cohen wrote a second letter to the Registrar of the Tribunal. In it, he said that, contrary to the applicant's evidence that the sofa bed had never been used, he wished to point out that it had been "well used" and that it now "looks very second hand". The applicant contends, in materials lodged with the Court, that the sofa bed had not in fact been used and that what had happened (she says that she has since discovered this) is that the leather on the sofa bed had been stretched as a consequence of defects in the undercarriage of the sofa bed.
9 On 1 December 2004 the Registrar of the Tribunal wrote to Barkers informing it that the matter might be relisted, but only upon the condition that Barkers forthwith paid to the applicant the sum of $599. It did so, and by notice dated 2 February 2005, the Tribunal informed the applicant that the matter had been relisted for hearing on 14 February 2005. The notice informed her that, at the resumed hearing, the only issues to be determined would be:
"1) whether, contrary to the sworn evidence of the Claimant that apart from the loose screws on the frame the sofa bed was otherwise undamaged, the sofa bed was damaged;
2) the nature and extent of the damage
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- 3) the cost of the repair of that damage."
10 At the resumed hearing on 14 February 2005, Mr Cohen handed up a quote from a vinyl and leather repairer who, the applicant says, was ordinarily used by Barkers for repair jobs. This was dated 9 February 2005 and read as follows:
"QUOTATION
As requested, please see below details of quotation:
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TOTAL |
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The applicant says that she was not shown the quote, although she acknowledges that she did not ask to see it.
11 The Referee found that the applicant was liable for the scratch. He foreshadowed making an order that she should pay Barkers the sum of $440 for repairs to the sofa bed. Discussion then ensued and, it seems, the applicant decided that she would be better off having a defective sofa bed than being required to pay $440 without having anything to show for it. Consequently, she consented to the making of orders that she should pay to Barkers the sum of $599 within 21 days and that, upon payment, she be at liberty to collect the sofa bed. Those orders were subsequently recorded in a letter dated 14 February 2005 addressed by the Small Claims Tribunal to the applicant.
12 On 8 March 2005 the applicant and Mr Cannon went to Barkers' warehouse in order to inspect the sofa bed. Its undercarriage was still broken. Mr Cannon said, audibly in the presence of Mr Dymock, that the bolts in the undercarriage were still loose. The applicant said that she
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- intended to use the broken sofa bed as evidence in making a claim to the Consumer Protection Commission or for the purpose of gaining media publicity concerning the manner in which she saw herself as having been treated. However, when she returned that afternoon to collect the sofa bed the loose bolts had been replaced by screws.
13 Thereafter, the applicant wrote a number of letters to the Tribunal seeking to have the case relisted. She asserted, amongst other things, that the Referee had been biased and that she had not been given a fair hearing. The Tribunal declined to relist the matter.
14 In May 2005 the applicant filed her notice of originating motion for prerogative relief. The motion came on for hearing, ex parte, before Miller J of the Supreme Court on 31 January 2006. The applicant contended that she had been treated unfairly because she was never shown the quotation handed up to the Referee by Mr Cohen. She argued that it was not possible for the quotation to have covered only the cat scratch (she said that she had recently obtained her own quote for fixing a cat scratch and that this had been about $66) and that she believed that the payment had been doubled in order to make her pay for the replacement of the "stretched leather". She contended that this was a consequence of the broken undercarriage of the sofa bed and that she had not been given an opportunity to argue this before the Referee.
15 Miller J dismissed the originating summons. He said that there was nothing before him to suggest that there had been any failure of procedural fairness and that, having consented to the orders that had been made, the applicant could not subsequently seek to challenge them.
The appeal to this Court
16 On 15 March 2006 the applicant filed a notice of appeal against the decision of Miller J. The notice was lodged some three and a half weeks out of time and the applicant consequently seeks an extension of time in which to lodge it.
17 Under O 3 r 5 of the Rules of the Supreme Court 1971 (WA) read with r 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA), the Court has a broad power to relieve against injustice by extending time: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283, 286. The Court will have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences of the grant or refusal of the extension, the prospects of success if an extension is granted and the vested right of the
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- respondent to retain the judgment: Gallo v Dawson (1990) 64 ALJR 458 at 459. Even if the delay in filing a notice of appeal is explained, the application should be refused if the appeal has no prospects of success: Gallo v Dawson (No 2) (1992) 66 ALJR 859 at 860. In considering the merits of the appeal, the Court should remind itself that there may be circumstances in which it would be necessary to examine all of the evidence and hear full argument before concluding that the appeal could not succeed: Jackamarra v Krakouer (1988) 195 CLR 516 at 522; and see, generally, Seaman: Civil Procedure Western Australia at [3893.10].
18 In this case, the applicant has satisfactorily explained her delay. She suffers from all of the disadvantages of self-representation. Also, she has suffered from ill-health and has been distracted by other litigation which required her attention. Consequently, the critical question is whether or not the appeal has any prospect of success. In my opinion it does not.
19 There are 15 grounds of appeal. These read as follows:
"DENIAL OF NATURAL JUSTICE
- 1. The learned magistrate erred on a point of law when he allowed this matter to proceed at all in the Small Claims Tribunal. The matter never should have proceeded since I was not responsible for looking after damaged sofa bed. [sic] (store was informed of condition of sofa bed within 30 minutes of getting into my home) I tried to contact owner to tell him there was something wrong with the sofa bed and I wanted to get my money back. At that point, I was not responsible for looking after the furniture store's broken sofa bed.
2. The learned magistrate erred on a point of law and fact when he only allowed me to talk about a scratch on the sofa bed and not permit me to defend the sofa bed's condition.
3. The learned magistrate erred on a point of fact when he did not show me document that was handed to him by Mr. Cohen (and then handed back). I was not verbally told what information was on document either.
4. The learned magistrate erred on a point of law when a tax invoice given to the magistrate was a photocopy and not an original document. (not sighted by me at the hearing
- but discovered at a later date when I requested copies of documents on file)
- 5. The learned magistrate erred on a point of law when a handwritten letter, faxed by Mr. Cohen to tribunal asking for $200 was raised to $440 at time of hearing. This $440 claim was not shown to me nor was I told what this amount was for. I could only presume it was for the cost of fixing a scratch.
6. The learned magistrate erred on a point of fact when a copy of my original letter, taken personally to furniture store (by witness) three days after taking possession of sofa bed was missing from file.
7. Learned magistrate erred in law and fact when rewarding respondent with two claims for $220 each. Neither claim was presented correctly to the tribunal.
8. Learned magistrate erred in fact when voluntary payment was made compulsory part of order (the difference between $440 and $599, cost of sofa bed).
9. Learned magistrate erred in law when he allowed Mr. Cohen to claim on his own damaged goods that were well within the 12 month implied warranty period.
10. Learned magistrate erred when he asked for quotes for scratch and, instead, allowed a $440 claim for all damage (including stretched leather caused by broken undercarriage).
11. Learned magistrate erred in law and fact when he would not allow a third hearing to take place in this matter, after I had sent four separate letters explaining in full detail what had taken place at the tribunal's second hearing.
12. Learned magistrate erred in law when he cast aside all the evidence put before him at first hearing. This included Kodak photographs, diagrammatic evidence and written evidence of the sofa bed's broken condition. He tossed that out in favour of one quote that was split into two parts.
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- 13. Learned magistrate erred in fact when he accepted a quote from a person who was only a vinyl surface repairer and not qualified to give reasons for the sofa bed's condition.
MISDIRECTION OF SMALL CLAIMS TRIBUNAL
14. Small Claims Tribunal misdirected me when I asked verbally what would happen if I did not pay on time and I was told by registrar, Mr. Ed Bastow that Mr. Cohen would have a bailiff sent to my home and goods would be seized.
15. Small Claims Tribunal did not send me a letter stating that Mr. Cohen would need to file documents in local court in order to get payment and that there was a formal process that would take time."
20 It seems, from these grounds, that the applicant asserts that the primary Judge should have found that there had been a denial of natural justice upon the basis of the matters raised in grounds 1 to 13, and that there was a "misdirection" as a consequence of the matters raised in grounds 14 and 15.
21 As to ground 1, there is nothing in it which bears upon a failure of natural justice. Nor does it reveal any jurisdictional error. Given that the Referee had made a conditional order, and that Barkers contended that the condition had not been satisfied, the Referee was entitled to reopen the hearing and deal with that issue. The applicant asserts that some "prescribed form" should have been presented on behalf of Barkers for that purpose. However, there is nothing in the Small Claims Tribunal Act (which was the legislation applicable at the time of the hearing) that required any form to be lodged in the circumstances as I have described them. The other matters that are sought to be ventilated by this ground do not involve any denial of natural justice or want of jurisdiction.
22 As to ground 2, the applicant does not dispute that she consented to the orders made on 14 February 2005. Nor does she dispute that she did so in circumstances in which she had not asked to see the quotation for $440. However, she asserts that she had believed that the quotation was for the cost of fixing the scratch when, in truth, it was in part for the cost of repairing the scratch and, in part, in respect of repairs to the "stretched leather".
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23 In considering this contention, the Court is, as I have said, hampered by the absence of any transcript of the hearing before the Tribunal. However, from what has been said by the applicant it seems that the quotation was presented as having been in respect of the scratch only. That seems to have been the case from the terms of the quotation itself. That document does not refer to any repairs to the stretched or wrinkled leather. To the contrary, it records that the wrinkles will hamper the repair work, suggesting that it is the repairs to the scratch that necessitated the restoration of the leather on one side of the couch to match that on the other. That being so, and having regard for the applicant's own understanding, at the time, that the quotation was solely for repairs to the scratch (and there being no evidence to support the applicant's subsequent assertion to the contrary), it seems very probable that the Referee accepted it upon that assumption. This is further reinforced by the fact that, according to the applicant, the Referee did not wish to hear from her concerning the stretched leather. This, no doubt, was because he regarded it as irrelevant. In those circumstances, and taking into account that the applicant did not ask to see the quotation or seek to adduce any evidence to contradict it (notwithstanding that the notice of 2 February 2005 had informed her that, if her case was not presented to the Tribunal, the issue would be resolved by it "on such evidence as has otherwise been adduced before it"), I am not persuaded that any arguable basis has been shown for upsetting the consent orders, whether upon the ground of denial of natural justice or otherwise.
24 As to ground 3, it would have been preferable for the Referee to have shown the quotation to the applicant. However, in circumstances in which she knew what was the amount of the quotation and did not ask to see it, I am not persuaded that this arguably gave rise to any denial of natural justice sufficient to warrant the intervention of the Court.
25 Ground 4 discloses no arguable want of jurisdiction or failure of natural justice.
26 As to ground 5, it is true that Barkers had initially asserted that the repair costs would be $200.00. However, there was no error of jurisdiction on the part of the Tribunal in allowing it to increase its claim in that respect. Nor was there any failure of natural justice. The applicant does not suggest she needed more time in order to deal with the increased quotation. If she did, she could have sought it. I will not repeat what I have already said concerning the failure to show her the quotation.
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27 Ground 6 does not disclose any arguable failure of natural justice or any arguable lack of jurisdiction.
28 Ground 7 merely repeats what has already been said in one or more of grounds 2, 3, 4 and 5.
29 Ground 8 also discloses no arguable case. Section 20(1) of the Small Claims Tribunal Act provides that, where a settlement is made in respect of a claim referred to a Small Claims Tribunal, the Tribunal shall, on the request of any party to the settlement, make an order that gives effect to the terms of the settlement. That is essentially what took place at the resumed hearing. When the Referee foreshadowed that he might allow a claim for $440 for repairs to the scratch, the applicant volunteered, instead, to pay for the sofa bed and keep it. Barkers agreed to an order in those terms. The orders made by the Tribunal consequently gave effect to the agreement reached between the parties. There was accordingly no jurisdictional error. Nor does this ground disclose any failure of natural justice.
30 Ground 9 raises neither an absence of jurisdiction nor any denial of natural justice.
31 The issue raised by ground 10 has already been dealt with. On my understanding of what took place the Referee accepted the quotation upon the assumption (then shared by the applicant and not shown, by any evidence, to be false) that it related solely to the repair of the scratch and the consequential need to ensure that the repaired section matched the balance of the sofa bed.
32 As to ground 11, there is nothing in the materials before the Court that would suggest that any sufficient basis was shown for a further reopening of the proceedings.
33 In a letter written by the applicant on 8 February 2005, by which she first sought to have the proceedings re-opened, she said, amongst other things, the following:
" … [O]n two occasions during the second hearing, Mr Cohen said and I quote 'I don't expect you to believe me sir, but the quote has increased from $200 to $440'. He was never reminded he was under oath. He had one quote of $200 and it had increased by over 100 per cent with a 'I don't expect you to believe me, sir.'"
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- Nothing there said (or elsewhere in the letter) justified any re-opening.
34 In a subsequent letter written to the Tribunal dated 5 March 2005, the applicant raised a number of additional complaints. The only paragraph of that letter which bears upon the quotation reads, relevantly, as follows:
"I was never given a fair hearing. I was never asked about the quotes I had at the original hearing, why I had them or why I was claiming the amount I was. Instead Mr Cohen and Magistrate Malone held a discussion as to why I was doing so and I was never brought into the equation and yet, at the second hearing Mr Cohen came in, asking for $200 on one quote and that was raised to $440 without question. He could have got that quote from anywhere, including a family member or friend."
- Once again, this did not justify a re-opening of the hearing. The comment made by the applicant could have been made at the hearing if, indeed, it was not then made. Nothing else in the letter justified a re-opening.
35 A third letter dated 8 March 2005 also makes a number of complaints. This letter does not address the issue of the quotation at all and nothing in it justified a re-opening of the proceedings.
36 Finally, by a fourth letter dated 21 April 2005, the applicant informed the Tribunal that she wished to claim $220 against Barkers based upon matters set out in that letter, including the following:
"Second heard - February 14, 2005. Wendy Rankilor (self) to pay Mr Cohen $599 within 21 days and to take sofa bed back or alternatively pay $220 for cat scratch. The quote given to Mr Cohen also included an extra $220 for damage done to the right-hand side of the seat section (this information of the two $220 claims was obtained after the hearing as I was not shown the repair quote at the tribunal hearing). This left a $159 volunteer payment to obtain sofa.
I, Wendy Rankilor, volunteered to pay $159 to obtain sofa knowing that it would be evident that the damage on the right-hand side seat section was caused from the sofa bed falling apart again from the front right-hand side. I intended to try to re-obtain the sofa bed so that Keith Cannon and myself could dispute Mr Cohen's $440 claim for obvious reasons."
(Page 13)
- This letter, to the extent that it asserts that the applicant was given the option of paying "$220 for the cat scratch" is incorrect. It is plain from the Tribunal's letter dated 14 February 2005 (and, indeed, from what has been said elsewhere by the applicant) that she was given the option of paying $440 for repairs to the sofa bed, and not $220. I have already dealt with her assertion that the quotation covered repairs to the stretched leather. As to the balance of the letter, nothing there said justified a re-opening of the hearing. Moreover, the last of the quoted sentences is inconsistent with her agreement to the orders made by the Referee.
37 As to ground 12, the allegation that the Referee "cast aside" the evidence led at the first hearing seems to be misconceived. As I have said, the only issue that was aired in the resumed hearing was that relating to the damage to the sofa bed which was said to have been the responsibility of the applicant. The evidence referred to in ground 12 does not relate to that issue. I have already said that the question of responsibility for the "stretched leather" appears not to have been a live issue at the resumed hearing (if, indeed, the evidence referred to was relevant to that issue). The ground discloses no reviewable error.
38 Grounds 13, 14 and 15, disclose no arguable lack of jurisdiction or failure of natural justice.
39 Finally, although there is no ground of appeal in this respect, the applicant asserts in her written submissions that there was a jurisdictional error in that she was told that she was not permitted to examine the Tribunal's file. If there was any jurisdictional error in that respect, it is not one of the kind contemplated by s 19 of the Act and it has, in any event, no bearing upon the orders challenged by the applicant's originating motion. The applicant's request to see the file was made on 29 June 2006, more than a year after the making of the impugned orders.
40 While I do not doubt that the applicant feels genuinely aggrieved by the events that have occurred, there is no arguable ground of appeal and hence no basis for the grant of an extension of time. I would refuse the application.
41 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
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