Watson v Wallington

Case [1999] WADC 84

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   WATSON & ANOR -v- WALLINGTON & ANOR [1999] WADC 84

CORAM:   LA JACKSON DCJ

HEARD:   4 OCTOBER 1999

DELIVERED          :   15 OCTOBER 1999

FILE NO/S:   CIVO 192 of 1999

BETWEEN:   TIMOTHY JOHN WATSON

JONINE FRANCES KEHOE WATSON
Applicants

AND

NEIL WALLINGTON
JOANNE WALLINGTON
Respondents

Catchwords:

Practice and procedure - Application for an extension of time for leave to appeal from a decision of the Building Disputes Committee

Legislation:

Builders Registration Act 1939, ss12A, 27, 28, 35, 36, 41

Home Contracts Act 1991 s17

District Court Rules O8, r5, 29

Result:

Time to apply extended.  Leave to appeal refused. 

Representation:

Counsel:

Applicants:     Mr S J Browne

Respondents                 :     Mr M N Thornhill

Solicitors:

Applicants:     Stephen Browne

Respondents                 :     Hotchkin Hanly

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

Bradshaw v Medical Board of WA (1990) 3 WAR 322

Building Corporation v Earnshaw, unreported; DCt of WA; Library No D990039; 22 February 1999

Gleeson v Lee (1996) 18 SR (WA) 353

Nationwide News Pty Ltd v Bradshaw (1985) 84 FLR 49

Roberts v Roberts (1992) 8 WAR 170

State of WA v Bond Corporation Holding Ltd (1991) 5 WAR 40

Wilson v Metaxas [1989] WAR 285

Wing Luck Foods v Lay Choo Lim [1989] WAR 358

Case(s) also cited:

Boomalli v Hake [1985] WAR 7

Cardinal Constructions Pty Ltd v Argo (1996) 16 SR (WA) 344

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Gallo v Dawson (1990) 93 ALR 479

Girando v Girando (1997) 18 WAR 450

Jackamarra v Krakouer (1998) 153 ALR 276

Palata Investments Pty Ltd v Burt & Sinfield Limited [1985] All ER 517

  1. LA JACKSON DCJ:  This is an application for leave to appeal against a decision of the Building Disputes Committee (the "Committee") pursuant to s41(2) of the Builders Registration Act 1939 and an application to extend the time for the lodging of such application pursuant to O8 r5 of the District Court Rules. 

    Extension of time

  2. By O8 r29, O8 r5 applies to this application for leave to appeal.  Order 8 r5 provides for the application to be filed and served within 21 days of judgment or such further time as a Judge or Registrar shall allow.  That order was considered by Hammond CJ in Gleeson v Lee (1996) 18 SR (WA) 353. His Honour identified four factors to be considered.

    1.The length of delay. 

    2.The reasons for delay. 

    3.Is there an arguable case? 

    4.The extent of prejudice to the respondent. 

  3. His Honour was dealing with an application for an extension of time to appeal in a Criminal Injuries Compensation case.  There is no requirement for leave to appeal in such cases.  In this case I do not think Item 3 needs to be considered with respect to the extension of time because it is one of the factors relevant to the issue of leave to appeal. 

    1       Length of delay

  4. The matter was heard before the Committee on…

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Watson v Wallington [1999] WADC 84
Case
[1999] WADC 84
Decision Date

CaseChat Overview and Summary

The case of Watson v Wallington involved an application for an extension of time for leave to appeal from a decision of the Building Disputes Committee. The applicant, Mr. Watson, sought to appeal a decision of the Building Disputes Committee, which had ruled against him in a building dispute. The Building Disputes Committee is an informal board designed to provide speedy and inexpensive relief in building disputes, as described by Judge Viol in the unreported case of Building Corporation v Earnshaw.

The legal issues before the court were whether the Building Disputes Committee had acted fairly and in accordance with the rules of natural justice, and whether the applicant had shown sufficient doubt as to the correctness of the Committee's decision and substantial injustice to warrant the grant of leave to appeal. The court had to consider the principles governing the grant of leave to appeal from interlocutory orders, as well as the nature and effect of the Building Disputes Committee's decision.

The court found that the Building Disputes Committee, despite its informal nature, was required to act fairly and in accordance with the rules of natural justice. This included ensuring that notice of the application had been properly served, giving the parties a reasonable opportunity to present their case, and deciding the case on the evidence before it. The court also found that the grant of leave to appeal was a matter of discretion, and that leave would be granted only where the decision was wrong, or at least attended with sufficient doubt to justify granting leave and, in addition, substantial injustice would be done by leaving the decision unreversed.

The court ultimately found that the applicant had not shown sufficient doubt as to the correctness of the Committee's decision or substantial injustice to warrant the grant of leave to appeal. The application for an extension of time for leave to appeal was therefore dismissed. The court noted that the Building Disputes Committee had acted fairly and in accordance with the rules of natural justice, and that the applicant had not demonstrated that the decision was wrong or attended with sufficient doubt to justify the grant of leave.

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

The Committee is as was described by Judge Viol in Building Corporation v Earnshaw, unreported; DCt of WA; Library No D990039; 22 February 1999 an informal board designed to give relatively speedy and inexpensive relief to the parties involved in building disputes. Amongst other things, this is exemplified by the fact that legal representation is only allowed by leave if the amount in dispute is less than $10,000. This was such a case. Notwithstanding the informality the Committee, like any other statutory board exercising in substance a judicial power, is required to act fairly and in accordance with the rules of natural justice. For example, it must ensure that notice of the application has been properly served. It must give to the parties a reasonable opportunity to present the case. It must when coming to its decision decide the case on the evidence before it. Leave to appeal Section 41 of the Builders Registration Act provides for appeals. Subsections (1) and (2) provide: "(1)Subject to subsection (2), a party to proceedings before the Disputes Committee may appeal to the District Court against a decision of the Disputes Committee in the manner and in the time prescribed by rules made by the District Court. (2)An appeal does not lie under subsection (1) unless the Disputes Committee or the District Court gives leave to appeal." There are many circumstances in which an appeal only lies by leave. In particular within the Rules of the Supreme Court an appeal only lies from an interlocutory order by leave. The Full Court in Wilson v Metaxas [1989] WAR 285 dealt with the issue. At page 294 Malcolm CJ said: "The object of the requirement that an appeal lies from an interlocutory order only by leave is to reduce appeals from these orders as much as possible: Perry v Smith (1901) 27 VLR 66; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 at 408. The jurisdiction to hear the appeal is founded upon the grant of leave. The grant of leave lies in the discretion of the court. In general, however, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed: Perry v Smith; Niemann v Electronic Industries Ltd [1978] VR 431; Stanley‑Hill v Kool [1982] 1 NSWLR 460; Monash University v Burg [1984] VR 383; BHP Petroleum Pty Ltd v Oil Basin Ltd [1985] VR 756. The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is substantial injustice must depend on all the circumstances of the case: BHP Petroleum Pty Ltd v Oil Basin Ltd at 759, per Fullagar J." In Wing Luck Foods v Lay Choo Lim [1989] WAR 358 at 360 the Full Court said: "The grant of leave lies in the discretion of the court. Consequently, in order to give effect to the object and purpose of the requirement for leave the courts have formulated principles upon which the discretion should be exercised. In Victoria, it has been held that, on an application to the Full Court for leave to appeal against an interlocutory judgment, leave should be granted only where the decision was wrong, or at least attended with sufficient doubt to justify granting leave and, in addition, substantial injustice would be done by leaving the decision unreversed: Niemann v Electronic Industries Ltd [1978] VR 431. Leave will be granted more readily if the practical effect of the order is to change substantive rights or finally determine the rights of the parties: cf per Murphy J at 440. The test formulated in Niemann has been followed in Stanley‑Hill v Kool [1982] NSWLR 460; Monash University v Berg [1984] VR 383; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; and Re The WA Teachers' Financial Society Limited; Wilson v Metaxas [1989] WAR 285, per Malcolm CJ (with whom Brinsden and Smith JJ agreed)."