| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ZAI MOTORS -v- SMILER [2014] WADC 76 CORAM : BOWDEN DCJ HEARD : 23 MAY 2014 DELIVERED : 28 MAY 2014 FILE NO/S : APP 92 of 2013 BETWEEN : ZAI MOTORS Appellant
AND
TIM SMILER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE COCKRAM Citation : KACTC 141 OF 2013 Catchwords: Magistrates Court - Minor case - Appeal - Leave to adduce additional evidence - Breach of natural justice - Appeal dismissed Legislation: Magistrates Court (Civil Proceedings) Act 2004 (WA) s 32, s 40 Result: 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
Kioa v West (1985) 159 CLR 550
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Shilkin v Taylor [2011] WASCA 255
1 BOWDEN DCJ: On 1 November 2013 his Honour Magistrate Cockram ordered judgment in favour of the respondent against the appellant in the sum of $6,739.20. The action was a consumer/trade claim and a minor case within the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act).
2 The judgment arose from the purchase by the respondent of a Hyundai motor vehicle from the appellant on 9 August 2012. The respondent claimed the motor vehicle had a defect when it was purchased and sought compensation, effectively being the cost to fix the vehicle. 3 His Honour heard evidence from the respondent, his partner Ms Thomas and Mr Ahmadzai. 4 His Honour determined the Hyundai was not of an acceptable quality when it was purchased because it had a major defect within the meaning of The Australian Consumer Law (WA) and the reduced value of the vehicle was the cost to fix it being $6,658, which together with allowable costs bought the judgment amount up to $6,739.20. 5 The appellant appeals that decision.
A preliminary issue 6 The respondent was not present at the appeal. 7 On 1 April 2014 Deputy Registrar Hewitt ordered that the appellant file within 14 days an affidavit verifying service on the respondent by post of the appeal and the court orders of the 11 March 2014 and 1 April 2014. 8 The appellant did not comply with this requirement. 9 At the appeal Mr Ahmadzai, a director of Zai Motors, gave evidence to the effect that on 18 April 2014 he sent to the two addresses specified in the court orders copies of the court orders of the 10 December 2013, 18 February 2014, 11 March 2014, 1 April 2014 and a 'procedure guide for Magistrates Court's appeal general civil claims' and a copy of the appeal notice. In addition, he said that on 16 May 2014 he sent by registered mail the same documents to the same two addresses. 10 In those circumstances, notwithstanding that the affidavit verifying service of the appeal had not been filed, I was satisfied that sufficient notice of the appeal had been given to the respondent and proceeded to hear the appeal.
The appeal 11 The Magistrates Court (Civil Proceedings) Act provides as follows: 32. Appeals (1) Except as provided by this section, no appeal lies against — (2) If a party to a minor case is dissatisfied with the judgment of the Court in the case then — (a) if the Court was constituted by a magistrate — an appeal lies against the judgment under Part 7 and, subject to subsection (3), Part 7 applies to the appeal; or … (3) Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds — …
40. Appeal from Magistrates Court to District Court … (2) An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32. … (4) The District Court must decide the appeal on — (5) Leave may only be given under subsection (4)(b) in exceptional circumstances. (6) Subsection (4) does not prevent the District Court from dealing with an appeal against a decision of the Magistrates Court to admit or refuse to admit any evidence. 12 An appeal from a magistrate's decision is by way of re-hearing and the appellant must demonstrate an error in the court below: Allesch v Maunz [2000] HCA 40 [23].
Grounds of appeal 13 The appellant's sole ground of appeal is: (a) The magistrate only considered the respondent's side of the story and claims. 14 At the hearing Mr Ahmadzai expanded those grounds by saying the decision 'was not fair' as the magistrate 'didn't listen to our evidence'. 15 Mr Ahmadzai said that at the time of the trial before the magistrate he did not understand how the court worked as it was his first time in court, and he had witnesses that he did not bring to the Magistrates Court and he now wished that evidence to be considered. 16 As I understood it, the witnesses the appellant wished to call, and the effect of their proposed evidence, is as follows: 1. The manager of Goldfields Toyota - to establish that the mechanic who provided the report relied upon by the respondent in the Magistrates Court only examined the vehicle for half an hour. 2. A salesman employed by the appellant - to establish what the respondent's partner said the first time the vehicle was returned to the appellant's yard after it was purchased. 3. Two mechanics - to establish how long it takes to diagnose a mechanical problem in the vehicle.
The application to adduce additional evidence 17 The Act specifically provides that an appeal from the magistrate must be decided on the material and evidence that was before the magistrate. Leave to adduce additional evidence may only be granted in exceptional circumstances. 18 The exceptional circumstances relied upon by the appellant was that he did not understand how the court worked and it was his first time in the court and he thought it was enough that he gave evidence. 19 Prior to the trial commencing, the respondent had been ordered to serve on the appellant the mechanic's report (that order was made on 3 May). At the commencement of the trial Mr Ahmadzai agreed that he had been provided with the mechanic's report (ts 3). 20 All the evidence that the appellant now seeks to call could have been called at the trial. Mr Ahmadzai was aware that the mechanic's report was going to be used, the salesman that he wishes to call, as I understand it, are employed by him and he was aware that the central issue to be determined was the mechanical condition of the vehicle at the time of its purchase. 21 The fact that Mr Ahmadzai had not previously been to court and claims not to understand the procedure is not sufficient. These facts alone or in combination do not constitute exceptional circumstance that would permit the additional evidence to now be called. 22 It is not helpful to attempt to describe what would constitute 'exceptional circumstances': Shilkin v Taylor[2011] WASCA 255 [68]. It is sufficient to say that in this case no exceptional circumstances have been made out. 23 I therefore dismiss the appellant's application to call the additional evidence.
The substantive ground of appeal 24 The appellant expressed his ground of appeal as 'the magistrate only considered the respondent's side of the story and claim' and supplemented that claim by saying that the decision was not fair and the magistrate did not listen to 'their' evidence. 25 The genesis of his complaint is that the magistrate should have found for the appellant rather than the respondent. 26 The difficulty for the appellant is that there are only limited grounds of appeal under the Act. 27 It is not argued either that this claim was not a minor case, or was not within the jurisdiction of the court or that the judgment was beyond the court's jurisdiction. 28 That leaves as the only possible ground of appeal that there was a denial of natural justice. 29 What is appropriate in terms of natural justice depends on the circumstances of the case and that includes, inter alia, the nature of the enquiry, the subject matters and rules under which the decision-maker is acting: Kioa v West (1985) 159 CLR 550, 584 – 585 (Mason J). 30 Natural justice require that a party be given a reasonable opportunity to present their case and the requirements of natural justice in this case are to be viewed in the context of the minor case procedure of the Magistrates Court: Rankilor v Circuit Travel Pty Ltd[2013] WASCA 148 [57] – [60] (Newnes JA). 31 There was no denial of natural justice. The magistrate gave the appellant an opportunity to be heard. Evidence was given by a director of the appellant at the trial and that evidence dealt with, inter alia, the mechanics report relied upon by the respondent. That director cross-examined each witness called by the respondent. The appellant did not indicate there were any further witnesses he intended to call. 32 In his reasons for judgment, his Honour set out the facts that he found and the law that he applied. The essential issue was whether or not at the time the vehicle was purchased it had a major defect within the meaning of the legislation. His Honour clearly found that it did. The appellant is a disappointed litigant who is dissatisfied with the result, however that is not a ground of appeal. The Act limits the grounds of appeal. The only possible ground of appeal raised by the notice of appeal and arguments was that there was a denial of natural justice and I have found there was no denial of natural justice. 33 For these reasons the appeal is dismissed.
|