Smith v Mandurah Auto Pty Ltd

Case [2014] WADC 69

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   SMITH -v- MANDURAH AUTO PTY LTD [2014] WADC 69

CORAM:   DERRICK DCJ

HEARD:   16 MAY 2014

DELIVERED          :   16 MAY 2014

PUBLISHED           :  22 MAY 2014

FILE NO/S:   APP 25 of 2014

BETWEEN:   NICOLE SMITH

Appellant

AND

MANDURAH AUTO PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE EDWARDS

Citation  :MH/MINOR/52 of 2013

Catchwords:

Application for leave to appeal out of time from a decision in Magistrates Court - Minor case claim - Principles applicable to grant of extension of time within which to appeal

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
District Court Rules 2005 (WA)

Result:

Application for an extension of time to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     Not applicable

Respondent:     Not applicable

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Butler v Bennett [2007] WADC 107

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Hoskins v Armstrong [2008] WADC 168

Hoskins v Van Den-Braak (1998) 43 NSWLR 290

Lance v Hogerdyk [2013] WADC 190

Re Burton; Ex parte Lowe [2003] WASCA 306

Regan v Gibson [2010] WADC 144

Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128

Shilkin v Taylor [2011] WASCA 255

Simonsen v Legge [2010] WASCA 238

Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1

DERRICK DCJ:

[This judgment was delivered extemporaneously and has been edited from the transcript.]

  1. The appellant has filed a notice of appeal against a decision made by Magistrate Edwards on 16 October 2013 dismissing an application to set aside default judgment.

  2. The appellant appeared in person at the hearing of her appeal.

  3. The respondent has filed a notice of intention to take part in the appeal and to argue that the decision the subject of the appeal should be upheld.  However, on 3 May 2014 Mr Duncan Kee, the respondent's 'dealer principal', notified the court in writing that due to cost considerations the respondent would not be appearing at the hearing of the appeal, and that the respondent would abide by any order made by the court 'other than as to costs'.  In accordance with this advice, there was no appearance for the respondent at the hearing of the appeal.  I note in this context that Mr Kee is the representative of the respondent who has been responsible for the commencement and prosecution of the respondent's claim against the appellant, and who had been appearing as the respondent's representative at all the hearings that have taken place in the Magistrates Court.

  4. In order to deal with the appeal I have, as is provided for under the District Court Rules 2005 (WA) (the DCR), had access to…

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AGLC
Smith v Mandurah Auto Pty Ltd [2014] WADC 69
Case
[2014] WADC 69
Decision Date

CaseChat Overview and Summary

Smith sought leave to appeal out of time from a decision of the Magistrates Court in a minor case. The primary legal issue before the court was whether Smith could be granted leave to appeal outside the statutory time limit set out in the Act. A secondary issue was whether Smith could be granted leave to appeal despite not filing an affidavit explaining why the appeal was not commenced within time. The court held that an appellant must obtain the leave of the court to commence an appeal out of time under s 40(3) of the Act. In determining whether to grant leave, the court applied the principles set out in Simonsen v Legge, considering the length of the delay, the reason for the delay, the prospects of the applicant succeeding in the appeal, and the extent of any prejudice to the respondent. In this case, the court found that the delay was significant but did not result in prejudice to the respondent and that the prospects of the appeal succeeding were reasonable. Therefore, the court granted Smith leave to appeal out of time.

The court considered the principles applicable to granting an extension of time within which to appeal, noting that appeals from a decision of a magistrate are by way of rehearing and that the appellate powers of the court are only exercisable if the appellant demonstrates that the decision made by the magistrate is the result of some legal, factual, or discretionary error. The court also noted the interaction between s 32 and s 40 of the Act, which sets out the grounds on which an appeal may be made against the magistrate's decision. The court found that the appellant's notice of appeal did not indicate that an extension of time was required, and that an affidavit explaining the delay was not filed. Despite these procedural deficiencies, the court decided to consider the application on its merits. The court found that the delay was significant but did not result in prejudice to the respondent and that the prospects of the appeal succeeding were reasonable. Therefore, the court granted leave for the appeal to proceed out of time.

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

Given that appeals from a decision of a magistrate are by way of rehearing, it is necessary for the appellant to demonstrate error in the court below: Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14]. Thus the appellate powers of the court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal is the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. As to the interaction between s 32 and s 40 of the Act, it is clear that if the decision appealed against was an order made by the Magistrates Court in the course of proceedings in a minor case or was the judgment of the court in a minor case, the appellant may only appeal against the magistrate's decision on one or more of the grounds specified in s 32(3). I turn now to deal with the timing of the appeal. The decision which the appellant appeals against was made on 16 October 2013. The appellant was therefore required by s 40(3) of the Act to commence the appeal on or before 6 November 2013. As I have already indicated, the appellant did not file her notice of appeal until 26 February 2014, approximately three and a half months beyond the required date. It follows that the appellant must obtain the leave of the court to commence the appeal out of time under s 40(3). The notice of appeal filed by the appellant does not indicate that an extension of time within which to appeal is required. Further, contrary to r 51(2) of the DCR the appellant has not filed an affidavit explaining why the appeal was not commenced within time. I raised with the appellant during the hearing of the appeal the need for her to obtain leave to commence her appeal out of time. I asked the appellant if she wanted to make an oral application to extend the time for the commencement of her appeal. In response to my question the appellant made what was in substance an oral application for an extension of time. She also provided me with her explanation from the bar table for her failure to comply with the 21 day time limit. Despite the procedural deficiencies in the way that the appellant has made her application for leave to appeal out of time, I will deal with her application. In Simonsen v Legge [2010] WASCA 238 [8] the court set out the matters which need to be considered when a party seeks an extension of time within which to appeal. The matters set out in Simonsen v Legge have been applied in this court in relation s 40(3) of the Act: see Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128; Lance v Hogerdyk [2013] WADC 190. I agree that it is appropriate to apply the statements made in Simonsen v Legge to an application under s 40(3). It is clear from Simonsen v Legge that the major, although not necessarily the only, matters which need to be considered in determining an application for an extension of time within which to appeal are:1.the length of the delay;2.the reason for the delay;3.the prospects of the applicant succeeding in the appeal; and4.the extent of any prejudice to the respondent.