Tey v Lewis

[2008] WASCA 229

TEY -v- LEWIS [2008] WASCA 229

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 229
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:97/2008	Heard:	24 OCTOBER 2008
Coram:	PULLIN JA	Delivered:	24/10/08
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	KOK YONG TEY JOSHUA RICHARD LEWIS
Catchwords:	Interlocutory appeal Hearing listed in the District Court Appellant having no legal representation Whether hearing should be vacated No error revealed No substantial injustice Turns on own facts
Legislation:	District Court Act 1969 (WA), s 79(1)(b)
Case References:	Allmark v Mossensons (A Firm) [2006] WASCA 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TEY -v- LEWIS [2008] WASCA 229 CORAM : PULLIN JA HEARD : 24 OCTOBER 2008 DELIVERED : 24 OCTOBER 2008 FILE NO/S : CACV 97 of 2008 BETWEEN : KOK YONG TEY

Appellant

AND

JOSHUA RICHARD LEWIS
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : SWEENEY DCJ

File No : APP 16 of 2008

Catchwords:

Interlocutory appeal - Hearing listed in the District Court - Appellant having no legal representation - Whether hearing should be vacated - No error revealed - No substantial injustice - Turns on own facts

Legislation:

District Court Act 1969 (WA), s 79(1)(b)

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr G T Peterson

Solicitors:

Appellant : In person
Respondent : Williams Handcock

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

Allmark v Mossensons (A Firm) [2006] WASCA 127


(Page 3)

1 PULLIN JA: The appellant Mrs Tey has an appeal listed in the District Court on 3 November 2008. That appeal concerns proceedings which had been conducted in the Magistrates Court. Mrs Tey commenced proceedings against the respondent Mr Lewis and Mr Lewis applied for summary judgment dismissing the claim. Magistrate Musk upheld the application and dismissed Mrs Tey's claim. Mrs Tey, via solicitors, filed an appeal in the District Court which is the matter listed on 3 November 2008. Mrs Tey and her solicitors then fell into disagreement about costs and on 15 August 2008 Mrs Tey's solicitors obtained an order from the District Court granting leave to cease to act for Mrs Tey.

2 On 18 September 2008 Mrs Tey filed an application to vacate the hearing of the appeal in the District Court and that was heard on 3 October 2008 by Judge Sweeney. Judge Sweeney dismissed the application, saying:

On the material that I have, which simply says, "I need time to engage another lawyer and any new lawyer will need time to understand," that's simply insufficient. They have a month to get the matter ready and I am not satisfied there isn't a lawyer out there who can't represent you on the hearing of the appeal and the respondent is entitled to have this matter finalised.

So in relation to your application that the hearing date for the appeal be vacated and the appeal adjourned generally, I refuse that application.

3 Mrs Tey has now appealed to this Court against Judge Sweeney's decision to dismiss the application to vacate the hearing date on 3 November. Mrs Tey has also filed an application in this appeal seeking an order that the hearing date on 3 November 2008 be vacated. By this interlocutory application Mrs Tey is attempting to obtain the very relief which would be granted if the appeal succeeded, which is a matter that a single Judge of this Court would not have jurisdiction to grant.

4 The matter is listed before me today as a result of the Registrar's notice to attend, which states that the matter has been called on to hear Mrs Tey's application to vacate the hearing date and to hear an application by Mrs Tey for leave to appeal. I will deal with the application for leave.

5 Leave is necessary because the decision appealed against is an interlocutory decision of the District Court and s 79(1)(b) of the District Court Act 1969 (WA) requires a grant of leave if the judgment or order is not final. The discretion to grant leave is not confined but leave will usually only be granted if the decision below was wrong or attended with sufficient doubt to justify the granting of leave and if substantial injustice

(Page 4)

would be done by leaving the decision unreversed: see Allmark v Mossensons (A Firm) [2006] WASCA 127, [26].

6 In my opinion Judge Sweeney's decision does not reveal any error. However, even if it had been possible to demonstrate an error, Mrs Tey has not demonstrated that to leave Judge Sweeney's decision unreversed would occasion substantial injustice. This is because Mrs Tey is not precluded from making a further application for adjournment, a point which was made by Judge Sweeney at the hearing on 3 October. For those reasons I would refuse leave to appeal and the appeal should be dismissed.