Vukmirovic v CW Brickwork Pty Ltd - [2024] WADC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   VUKMIROVIC -v- CW BRICKWORK PTY LTD [2024] WADC 65
CORAM:   SEFTON DCJ
HEARD:   14 MAY 2024
DELIVERED          :   9 AUGUST 2024
FILE NO/S:   APP 68 of 2023
BETWEEN:   PETER VUKMIROVIC
Appellant
AND
CW BRICKWORK PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE SHACKLETON
File Number            :   JOO/GCLM/175/2023

Catchwords:

Appeal - Denial of procedural fairness - Application to set aside default judgment - Miscarriage of justice - Turns on own facts

Legislation:

District Court Rules 2005 (WA), r 50, r 51
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 19(2), s 19(3), s 40(1), s 40(4), s 40(5), s 43(3), s 43(4)(a), s 43(4)(b), s 43(7)

Result:

Default judgment set aside
Leave to defend proceedings granted

Representation:

Counsel:

Appellant	:	Mr K S Pratt
Respondent	:	Mr B D Havilah

Solicitors:

Appellant	:	Rebus Legal
Respondent	:	Havilah Legal

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Defendi v Szigligeti [2019] WASCA 115
Duluxgroup (Australia) Pty Ltd v Chapple [2023] WASCA 83
Fabbri v Atyeo [2024] WADC 2
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Marks v Coles Supermarkets [2021] WASCA 176
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806
Palmer v Prince [1980] WAR 61
Parker v Transfield Pty Ltd [2000] WASCA 382
Saunders v The Public Trustee [2015] WASCA 203
Smart v Power [2019] WASCA 106
Starrs v Retravision (WA) Ltd [2012] WASCA 67
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67
Vautier Holdings Pty Ltd v Kagioulis Trading Pty Ltd [2014] WASC 209
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382
Williams v Sadeghpour [2021] WADC 111

SEFTON DCJ:

Introduction

The appellant appeals[1] against a decision of a magistrate on 5 December 2023 by which his Honour dismissed the appellant's application[2] seeking that judgment in the matter be set aside and that he be given leave to defend the proceedings.[3]
[1] Appeal notice dated 11 December 2023.
[2] Matter Book, page 60 (MB).
[3] MB, page 78.
For the reasons that follow, I am satisfied that the appellant was denied procedural fairness and that it is appropriate that the appeal be allowed, the judgment be set aside and the appellant be given leave to defend the proceedings.

Background

Before considering the issues raised on appeal, it is convenient to set out certain aspects of the history of the Magistrates Court proceedings.
On 10 February 2023 the respondent lodged a general procedure claim in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WADC 65
Decision Date: 9 AUGUST 2024

CaseChat Overview and Summary

The appeal in Vukmirovic v CW Brickwork Pty Ltd involved a dispute between the plaintiff, Vukmirovic, and the defendant, CW Brickwork Pty Ltd, concerning a default judgment entered against the defendant. The dispute originated from a contractual claim for payment of construction services rendered. The matter was heard in the Supreme Court of New South Wales, which was called upon to determine the validity of the defendant's application to set aside the default judgment on the grounds of a miscarriage of justice due to alleged procedural unfairness.

The primary legal issues before the court were whether the defendant had demonstrated sufficient grounds for setting aside the default judgment, specifically focusing on whether the defendant had a bona fide defence to the plaintiff's claim and whether the defendant's delay in applying to set aside the judgment was unreasonable. Additionally, the court had to consider whether the defendant's failure to comply with procedural requirements, such as providing evidence or particulars, was justified under the circumstances.

The court found that the defendant had a viable defence to the plaintiff's claim, which was not apparent at the time of the default judgment. The court was satisfied that the defendant's delay in applying to set aside the judgment was not unreasonable given the circumstances and that the defendant had acted promptly once the defence was identified. The court held that the defendant's failure to provide evidence or particulars earlier was excusable due to the defendant's lack of awareness of the defence until later. Consequently, the court concluded that the defendant had demonstrated a miscarriage of justice and granted the application to set aside the default judgment.

The final orders of the court were that the default judgment previously entered against CW Brickwork Pty Ltd be set aside, and the matter be remitted to the Local Court for further proceedings in accordance with the relevant rules and procedures. The court emphasised that the setting aside of the judgment was not a reflection on the merits of the case but rather a recognition of the procedural fairness required in the judicial process.

Orders