Schaefer v Gregory

[2015] WASCA 222

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SCHAEFER -v- GREGORY [2015] WASCA 222

CORAM:   NEWNES JA

MURPHY JA

HEARD:   3 NOVEMBER 2015

DELIVERED          :   6 NOVEMBER 2015

FILE NO/S:   CACV 129 of 2015

BETWEEN:   ERIC JOSEPH SCHAEFER

Appellant

AND

KATHLEEN GREGORY, CHIEF EXECUTIVE OFFICER, FOUNDATION HOUSING 'FH'
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON DCJ

File No  :APP 35 of 2015

Catchwords:

Practice and procedure - Whether grounds of appeal have any reasonable prospect of succeeding - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance (not taking part)

Solicitors:

Appellant:     In person

Respondent:     No appearance

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

Nil

1. JUDGMENT OF THE COURT: This appeal comes before the court on a registrar's notice to attend to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.

2. The appellant is a tenant of Foundation Housing Ltd.  He became dissatisfied with the manner in which the rental charged by Foundation Housing was being calculated and, on 5 March 2015, commenced proceedings in the Magistrates Court against Ms Kathleen Gregory, in her capacity as the chief executive officer of Foundation Housing.  Ms Gregory filed a notice of intention to defend the claim.  She also filed an application to substitute Foundation Housing as the defendant in the proceedings and an affidavit in which she explained that she was the chief executive officer of Foundation Housing, a corporate entity, and the appellant's claim was against Foundation Housing, not against her personally.

3. On 4 May 2015, Magistrate Randazzo ordered that Foundation Housing be substituted as the defendant in the proceedings.

4. The appellant appealed to the District Court, contending that the magistrate was in error in so ordering.  The sole ground of appeal was '[p]ersonal accountability removed from claim.'  On the hearing of that appeal, the appellant confirmed that his grievance was with Foundation Housing but that Foundation Housing was 'just a paper company' and it was necessary to name Ms Gregory as the defendant 'as the senior representative of the company, to receive the documents and direct them' (ts 4 ‑ 5).

5. The primary judge found that the magistrate was correct in finding that Foundation Housing was the appropriate defendant to the appellant's claim and dismissed the appeal.

6. The appellant now appeals to this court from the decision of the primary judge.  There are five grounds of appeal.  It is unnecessary to set them out.  In substance, the appellant's contention is identical to the one advanced before the primary judge.  In the grounds of appeal, the appellant reiterates that his claim is against Foundation Housing and that Ms Gregory was named as the defendant only in a representative capacity as Foundation Housing is a '''paper company" who has no self‑interests.'  The appellant says the removal of Ms Gregory as the defendant leaves the claim 'with no [representative] to give voice to the claim.'  In his oral submissions, the appellant reiterated that Foundation Housing was an artificial entity and the claim must be made against some person who is responsible for Foundation Housing.

7. The appeal is plainly misconceived.  It is quite clear that the appellant has no claim, and does not seek to make a claim, against Ms Gregory personally.  The appeal is based on the misconception that where a claim is made against a corporation it is necessary to name a representative of the corporation as the defendant.  That is not the case.  The proper defendant in a claim against a corporation is the corporation, in this case Foundation Housing.  How Foundation Housing organises itself internally to deal with the claim is a matter for it.  It follows that none of the grounds of appeal has a reasonable prospect of succeeding and the appeal must be dismissed.