Wilson v Romanchik
[2013] WASCA 103
•17 APRIL 2013
WILSON -v- ROMANCHIK [2013] WASCA 103
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 103 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:122/2012 | 19 MARCH 2013 | |
| Coram: | PULLIN JA MURPHY JA | 17/04/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SANDRA LYNNE WILSON VOLHA ROMANCHIK |
Catchwords: | Appeal Commenced out of time Application for an extension of time Whether grounds of appeal had any reasonable prospect of succeeding |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA), s 26, s 32(2), s 40 Residential Tenancies Act 1987 (WA), s 26 Supreme Court (Court of Appeal) Rules 2005 (WA) |
Case References: | Commissioner for Fair Trading v Voulon [2005] WASC 229 Simonsen v Legge [2010] WASCA 238 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WILSON -v- ROMANCHIK [2013] WASCA 103 CORAM : PULLIN JA
- MURPHY JA
- Appellant
AND
VOLHA ROMANCHIK
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : WILSON -v- ROMANCHIK [2012] WASC 328
File No : CIV 2195 of 2012
Catchwords:
Appeal - Commenced out of time - Application for an extension of time - Whether grounds of appeal had any reasonable prospect of succeeding
(Page 2)
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 26, s 32(2), s 40
Residential Tenancies Act 1987 (WA), s 26
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Application for extension of time to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Commissioner for Fair Trading v Voulon [2005] WASC 229
Simonsen v Legge [2010] WASCA 238
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
(Page 3)
1 REASONS OF THE COURT: This is an application for an extension of time to appeal against the judgment of Master Sanderson. The order of the master was made on 5 September 2012. The master ordered that a notice of originating motion filed by the appellant should be dismissed.
2 Any appeal to this court had to be commenced within 21 days: see r 26(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules). The appeal notice was filed out of time on 5 October 2012. An extension of time will not be granted if none of the grounds of appeal has any reasonable prospect of succeeding: Simonsen v Legge [2010] WASCA 238 [8]. For the reasons which follow, none of the appellant's grounds has any reasonable prospect of succeeding.
3 The case before the magistrate was a minor case as defined in s 26 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). In the proceedings, the respondent claimed against the appellant payment of $1,565.10. This was, in the main, an amount the respondent had paid to occupy the appellant's premises at 43B Second Avenue, Claremont. The respondent claimed that sum because she was evicted and she said that the money claimed was for money pre-paid for occupation after the time of her eviction. There was an issue about whether the respondent was a tenant or a lodger. If a tenant, then the magistrate had jurisdiction under the Residential Tenancies Act 1987 (WA) to order payment of the sum claimed. If the respondent was a lodger, he did not have jurisdiction under that Act.
4 Evidence was given by both parties. The magistrate determined that the respondent was a tenant and that he therefore had jurisdiction, and he then made the order that the appellant pay the respondent the amount claimed.
5 The appellant, unrepresented by a lawyer, filed a notice of originating motion. This led the master to say that it was difficult to know how to characterise the application, particularly as the originating process did not indicate what relief the appellant was seeking. Based on the 'grounds of application' the master considered that the appellant might have been attempting to appeal against the decision of the magistrate. Alternatively, the master said that the application might be regarded as an application for review under s 36 of the Magistrates Court Act 2004 (WA), but not in proper form.
6 The master, in effect, concluded that the appellant was not appealing under the Magistrates Court Act because no appeal was open under that
(Page 4)
- Act. This is apparent from the master's reference to s 26(2) of the Residential Tenancies Act. Section 26 of that Act reads:
(1) An order made by a court under this Act is final and binding on all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof.
(2) No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.
(3) This section applies despite Part 7 of the Magistrates Court (Civil Proceedings) Act 2004.
8 The master considered that this was implicitly what was raised by the appellant and treated the appellant's application as contending that the magistrate erred in determining this jurisdictional fact. As to that submission, the master said:
In the course of his reasons the learned magistrate referred to the decision of Hasluck J in Commissioner for Fair Trading v Voulon [2005] WASC 229. His Honour quoted at some length from the decision indicating that he had a clear grasp of the basis upon which it is to be determined whether an individual is a lodger or a tenant. The learned magistrate then applied the law to the facts of the case before him and concluded the defendant was a tenant. Considering the totality of the evidence it is clear the learned magistrate reached the correct conclusion [6].
9 The master then dismissed the application.
10 If the appellant had sought a review of the master's decision on the basis that he erred in concluding that the magistrate reached the correct conclusion based on Commissioner for Fair Trading v Voulon [2005] WASC 229, then an extension of time might have been granted because
(Page 5)
- the issue about whether a person is a tenant or a boarder has not yet come under consideration in the Court of Appeal. However, the appellant has filed the appellant's case and it does not contend that the master erred in law in concluding that the magistrate was correct in concluding that the respondent was a tenant based on Voulon's case. Instead, the grounds of appeal read:
I submit as grounds of appeal:
1. That I was incapacitated by prescribed medication on the day of the hearing. I misjudged the power of the medication prescribed to me for panic.
2. The result left me unable to proceed in tendering my case at the hearing.
12 Under the heading 'Submissions', the appellant states:
I respectfully submit my doctor's letter to the court in respect of my failure to state my case at the hearing.
13 In support, the appellant filed an affidavit sworn by her on 5 October 2012 annexing a letter from a Dr R E Quinlivan dated 12 September 2012. The letter stated that the appellant had been her patient since 4 February 2003. The letter stated that she prescribed the appellant a certain drug for 'panic situations':
She took [one] tablet before her court appearance last week. She said she developed a 'mental blank' in court and felt it may have been due to the medication. She is thus filing to reopen the appeal. In my opinion, Mrs Wilson is of good character.
14 The appellant proffers this affidavit by way of additional evidence. Additional evidence may be received: see r 47(3)(d) of the Court of Appeal Rules.
15 The letter from Dr Quinlivan provides no support for the two grounds of appeal. The letter from Dr Quinlivan does not say that the appellant was incapacitated. The letter merely states that the appellant 'felt' that the 'mental blank' which she developed in court 'may have been due to the medication'. The doctor does not offer any opinion about the validity of that assertion or offer any opinion about the effect of the drug.
(Page 6)
16 The transcript of the hearing before the master reveals no uncertainty on the appellant's part in making submissions.
17 However, assuming that the appellant did suffer a 'mental blank' and in consequence she did not have the opportunity of making submissions, then it would be futile to set aside the master's decision and order a rehearing if there was nothing further that the appellant could say which would have produced any different result. It would be futile to set aside the order if it would be futile to order a new hearing: see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145.
18 Nothing the appellant said in her submissions before this court would support a different outcome. The appellant was asked what submission she would have made if she had not suffered the alleged inability to make submissions before the master, and nothing she said amounted to more than an assertion that the magistrate was wrong in the decision that he made without advancing any particulars in support of the assertion. The appellant asserted that the magistrate failed to discharge his 'duty of care'.
19 The appellant made no oral submissions which revealed any error in the magistrate's conclusion that the respondent was a tenant and did not point to any error made by the master in reaching the conclusion that the magistrate reached the correct conclusion.
20 Neither of the two grounds of appeal has a reasonable prospect of succeeding. As a result, the application for an extension of time should be dismissed.
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