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
DERRICK DCJ:
[This judgment was delivered extemporaneously and has been edited from the transcript.]
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.
The appellant appeared in person at the hearing of her appeal.
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.
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…
Continue reading Smith v Mandurah Auto Pty Ltd
Sign in free to access the full text
- AGLC
- Smith v Mandurah Auto Pty Ltd [2014] WADC 69
- Case
- [2014] WADC 69
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
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.