Zollo v Shine It Cleaning Services
[2018] WADC 166
•30 NOVEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ZOLLO -v- SHINE IT CLEANING SERVICES [2018] WADC 166
CORAM: GETHING DCJ
HEARD: 16 NOVEMBER 2018
DELIVERED : 30 NOVEMBER 2018
FILE NO/S: APP 60 of 2018
BETWEEN: CARMINE ZOLLO
Appellant
AND
SHINE IT CLEANING SERVICES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE TAVENER
File Number : MI CTC 1865 of 217
Catchwords:
Magistrates Court appeal - Minor case - Whether denial of natural justice from no opportunity to tender documents
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 32, s 40
Result:
Appeal allowed
Decision set aside
Case remitted to the Magistrates Court
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Alvaro v Fraser & Downsborough Designers Pty Ltd (1990) 20 ALD 762
Blenkinsop v Holland [2018] WADC 146
Buttarelli v Perpetual Ltd [2013] WASCA 254
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Jones v Darkan Hotel [2014] WASCA 133
Labib v Histon [2017] WADC 39
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Nobarani v Mariconte [2018] HCA 36
R v Burton; Ex parte Lowe [2003] WASCA 306
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Rowe v Stoltze [2013] WASCA 92
Smart v Prisoner Review Board (WA) [2012] WASC 48
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA
Woolworths Ltd v Commissioner of Police [2013] WASC 413
GETHING DCJ:
Overview
In May and June last year, Shine It Cleaning Systems Pty Ltd (Shine), the respondent, was engaged by Mr Zollo, the appellant, to grind, wash and paint his garage floor. After several attempts, the work was not undertaken to the satisfaction of Mr Zollo. He refused to pay Shine's invoice.
In August 2017, Shine commenced a claim against Mr Zollo in the minor cases jurisdiction of the Magistrates Court, filing it in the Midland registry. Mr Zollo counterclaimed. The case went to trial on 28 February and 30 April 2018 before Magistrate Tavener (Magistrate). The Magistrate reserved his decision, handing it down on 14 May 2018, allowing the claim and dismissing the counterclaim.
Mr Zollo appealed from that decision to this court. For the reasons which follow, the appeal should be allowed and the case remitted to the Magistrates Court for rehearing.
Proceedings in the Magistrates Court
The claim set out in the Form 6 was in the following terms:
On 28 March 2017, Shine It Systems provided a quote to Mr Carmine Zollo to grind, wash and paint 68 square meters of garage floor with Dulux Luxafloor Rollcoat. The quoted amount was for $3737.51 including GST. Mr Zollo accepted the quote, and we attended his address on May 1st 2017 to begin work. The scope of work was to grind, wash and paint the prepared concrete surface with 2 coats of Dulux Luxafloor Rollcoat.
After painting the floor, Mr Zollo advised that he was unhappy with the look of the surface as there were shadow lines from the roller applicator. In good faith, and at no extra charge to the client we agreed to re-attend and redo the work a further three times. Each time we consulted with a representative from Dulux who advised on their products and alternative methods of application. Each time that client was dissatisfied with the results for the same reason. On the final attempt a representative of Dulux attended to oversee the surface preparation and to ensure appropriate application of the product. The Dulux representative advised us and the client that we adhered to the recommended floor standards in our preparation of the surface and application of the product. Again the client was not satisfied with the result as the shadow lines were still evident in the same way as before.
We advised the client that we were willing to attend once again to apply a third coat to the surface. The client did not respond to this request. On 10 July 2017 Shine It Systems sent and invoice to the client (Invoice 1555) for $3850. On 17 July 2017 Mr Zollo advised by email that he would not be paying the account due to a finish that was substandard. On 24 July 2017 we sent a revised invoice (Revised Invoice 1555) for $3300 removing our product cost in consideration of the fact that the client was not satisfied with the shadow application lines. After not receiving any payment or communication from the client we sent a letter of demand on 14 August 2017. On 21 August 2017, Mr Zollo responded to our demand letter by saying that the finish of the floor was unacceptable.
On 17 October 2017, Mr Zollo filed a defence and counterclaim. It read:
Shine It Systems was employed to coat my garage with a Dulux Epoxy coating and I was advised the work would be completed in 2 to 3 days with my access to the garage possible after 7 days (to allow the coating to cure properly). The stated time-lines were important as I had other work planned to go ahead such as electrical fitout for power/lighting and lining the brick walls and underside of the mezzanine area with Gyprock so as to use one third of the floor space as a studio type arrangement to display my collection of model cars and other Australian motoring themed items. However, Shine It Systems was unsuccessful with the initial application of the coating as agreed and subsequently attended several more times over a course lasting over eight weeks, in attempts to remedy the substandard finish. Each time Shine It Systems had to sand back the sealed surface (which created a lot of dust and mess, especially in the mezzanine floor area) for the re‑application of the coating which on each occasion had to be re-done each time he attempted to remedy the problem and each time the finish was worse than the attempt before. Although Shine It Systems had consulted Dulux and was required to obtain their assistance for at least one of the coat applications, I complained to Dulux directly and the Dulux WA State Manager agreed to attend my home after my complaint to them and at the time Dulux agreed to assist Shine It Systems with the supply of the required product/materials, but there was no guarantee from Shine It Systems that the attempt of another application would succeed. Shine It Systems was proposing to do it a 5th time but the experience with the previous four occasions I wasn't prepared to go through the whole ordeal again with no guarantee of any better outcome. Therefore after many weeks of unsuccessful attempts, a lot of disruption at my home and having to clean up after each visit I am left with an unacceptable and substandard finish which now has to be removed before I can get someone else to apply the coating properly which is estimated to cost about $2000.00 therefore I deny any liability to pay Shine It Systems because they have not completed the work to an acceptable standard and finish.
On 3 November 2017, Shine filed a defence to counterclaim. The terms of this document essentially elaborate what is in the claim. It is salient to quote three paragraphs:
When we initially attended the property to view the surface for quoting, we showed the client photos of a high end garage floor that we had just completed on a new slab in Dalkeith. At this stage Mr Zollo made it clear that he did not want to pay for high end finish. Given that the client did not want to pay for high end finish, and that he wanted a surface that would be able to withstand a working garage (for example – dropping of tools and chemicals) we recommended the process and product. Mr Zollo agreed to the recommended process and use of Dulux products. Mr Zollo agreed to the recommended process and use of Dulux products.
…
Shine It Systems has worked with concrete surfaces for almost 30 years and have never encountered a result similar to Mr Zollo's. We believe that we made all reasonable efforts to achieve a satisfactory result, and performed all work to within generally accepted industry standards. We concluded that the client would not be satisfied with anything less than a high end finish at a low end price.
…
Carmine Zollo is liable for the claim, as Shine It Systems conducted all surface preparation, and application of surface coating to generally accepted industry standards, and did not cause any damage on site.
From the pleadings, it is apparent that the central issue at trial was whether the work done by Shine was done to the standard agreed between the parties.
The parties attended a listings conference on 27 December 2017 at which the case was listed for trial on 28 February 2018.
The trial commenced on 28 February 2018 before the Magistrate. Mr Zollo appeared. Shine was represented by its director, a Mr Duncan. The transcript of this hearing is in the materials provided by the Magistrates Court to this court. At this hearing the Magistrate formed the view that the facts were not really in dispute and that the case would turn on what was a 'reasonable outcome' for the floor.[1] The Magistrate went on to say that this in turn comes down to an assessment of the two competing views put forward by the expert retained by each party.[2] The trial needed to be adjourned as the expert retained by Shine was not available that day. The Magistrate told Mr Zollo and Mr Duncan that at the adjourned hearing they could give evidence, but again observed that 'there's nothing in dispute'. Neither Mr Zollo nor Mr Duncan gave evidence at this hearing, and no documents were tendered by either of them.
[1] Mag Ct ts 28.2.18, pages 5 – 6.
[2] Mag Ct ts 28.2.18, page 6.
The balance of the trial took place on 30 April 2018.
At the resumed hearing on 30 April 2018, Shine called Kyle Nesbit.[3] Mr Nesbitt was an employee of Dulux. His evidence was to the effect that the work was done to a professional standard. He observed that the coating was not flaking, blistering or peeling. He also said that he did not observe in the coating, issues which he had seen in other cases which would make the job 'below par': [4]
His Honour: Okay. And thank you – just reminding me. In terms of that – the final outcome - - - ?---Yes.
- - - which I think shows shadowing – we agree
- - -?---Yes. Yes.
- - - that it appears to be light and dark. Can you – are you able to comment as to whether that's usual, using that particular product, the Dulux epoxy? ---As – as I've seen in the past, yes, it is a – yes, a professional finish. If there was big patches of different shadowing or even like picture framing around the edges or, you know, parts where it was glossy and the other parts not so glossy, that would be below par. So I don't see this in this case.
[3] Mag Ct ts 30.4.18, pages 3 ‑ 9.
[4] Mag Ct ts 30.4.18, page 6.
Mr Zollo called Hal Burkett.[5] Mr Burkett was a consultant 'in the painting and decorating trade and structural steel and areas of coating from ships to subsea materials to offshore piping and things like that'.[6] His evidence was to the effect that the floor is not uniform in its finish, and failed to comply with an applicable Australian Standard.[7] Specifically: [8]
…It's – the situation here is nothing to do with the quality of the paint. It's a good paint. The preparation of the surface was done correctly, otherwise we would have seen evidence of delamination. The whole issue here is the application techniques that have been used are not uniform and they're not consistent. So, under the Australian Standards, which is what we try to go by, and I've commented that in my – commented on that in my report, the floor is not uniform in the finish. To paint a flat surface on – on the ground is not too hard. It's pretty straightforward.
Yes? - - -So after four tries the contractor has still got defects, which the photographs show. That is not the way you leave a job. It's not uniform. It has defects in it, such as roller lines and puddles of – little puddles of paint where the roller finished, things like that, that cause me to say, well, this is not in compliance to the Australian Standard.
…
So the photographs show where the uniformity of gloss is not there. It's – it's patchy. There are irregularities in the surface that – in the finish which are caused by workmanship. It's nothing to do with the concrete. It's simply roller lines and where the roller has gone and finished and left a little puddle. Minor areas haven't been filled, and going back over the surface after you've painted it makes it sort of pucker up and leaves an uneven finish. So it's really to do with that type of application that I was asked to comment on and write my report. It was irregular, not uniform, and does not comply with the standard.
[5] The transcript incorrectly records Mr Burkett's first name as being 'Howel'.
[6] Mag Ct ts 30.4.18, page 11.
[7] Mag Ct ts 30.4.18, pages 10 - 16.
[8] Mag Ct ts 30.4.18, pages 11 - 12.
The Magistrate reserved his decision, with a hearing convened for 14 May 2018 for the decision to be handed down.
The Magistrate published a short written decision. After stating the background (in terms of the claim and defence which I have quoted), his Honour found:
…
Hearing
4.The issue at the hearing was whether the work performed by the applicant was of a satisfactory standard. Each party called an expert to testify.
5.Mr Kyle Nesbitt, for the applicant, had worked for Dulux for over six years in the area of Industrial Coatings. He testified the paint was above standard as it was not peeling or blistering. The end look was a professional finish as there was not different shading or glossy patches.
6.Mr Hal Burkett was very experienced painter who had been a TAFE lecturer for over 20 years. In his opinion the problem was not with the paint or preparation but rather arose due to the application not being uniform and consistent, according to the Australian standard 2311. He spoke of the requirement of that standard and stated that the irregularities were due to workmanship; in particular, errors using the roller and going over the paint caused puddles. He suggested the incorrect technique was used rather than rolling up to the expansion lines and finishing off those areas square by square. He acknowledged it was a work floor.
7.The garage floor was more than 20 years old; however, Mr Burkett said that if treated properly a good finish could be obtained. Mr Burkett other factors could have an impact such the weather and floor temperature.
8.The experts are not in conflict, as both agree the paint used was appropriate and was not the cause of the fault.
Finding
9.The defendant did not request a high end finish, but was entitled to expect satisfactory work to the standard ordered by him. There is some shading on the completed work, when seen from a particular angel. The defendant has a working floor which has some aesthetic problems. The applicant, despite a number of efforts has been unable to meet the standard required by the defendant.
10.The defendant did not seek a high end finish; had he done so he would be entitled to judge the floor by the highest standard. As it turns out, the final floor is of a good standard, although it does have some shading; it is fit for purposes.
Decision
11.The defendant's counter-claim is dismissed. The defendant is to pay the applicant the sum of $3,420.20.
The formal orders made by the Magistrate were to dismiss Mr Zollo's counterclaim and order him to pay Shine $3,420.20 (Magistrate's Decision).
District Court Appeal
A judgment of a magistrate in the minor claims jurisdiction of the Magistrates Court may be the subject of an appeal to the District Court.[9] In the present case, 'an appeal against a judgment in a minor case may only be made on the ground… that in dealing with the minor case there was a denial of natural justice'.[10] The onus is on Mr Zollo as the appellant to demonstrate a denial of natural justice.[11] The appeal is otherwise to be made in accordance with Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) pt 7.[12]
[9] Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 32, s 40.
[10] MCCPA s 32(3)(b).
[11] Jones v Darkan Hotel [2014] WASCA 133[31] (judgment of the court).
[12] MCCPA s 32(2)(a).
By Appeal Notice dated 4 June 2018, but not filed until 5 June 2018, Mr Zollo commenced an appeal from the Magistrate's Decision. This was one day outside the 21 day time limit.[13] The court has a discretion to extend the time limit. As the delay was short, and there is no evidence to the effect that Shine suffered any prejudice as a result of the late filing of the appeal, it is an appropriate exercise of the principles governing the exercise of this discretion[14] for Mr Zollo to be granted leave to file out of time.
[13] MCCPA s 40(3).
[14] As to which, see: Labib v Histon [2017] WADC 39 [40] – [41] (Gething DCJ).
With his appeal, Mr Zollo also filed an affidavit sworn 4 June 2018, in which he deposed:
1.I am the Appellant in this appeal.
2.After the decision of Magistrate Tavener was handed down on 14/05/2018, I believe the Professional Inspection Report provided by Mr Hal Burkett, was an important part of evidence that was not properly taken into account and other relevant documents that I was not given the opportunity to present.
3.In order for there to be a full, fair and just trial of the issues, it is imperative that the aforementioned documents are taken into consideration by the Judge hearing the appeal.
By email dated 29 July 2018, the directors of Shine advised the court in the following terms:
We have been advised by officers of the Court that District Court rules require a Lawyer to lodge our Form 8 Notice of Respondent's Intentions on behalf of us, a company.
We were unable to afford any further costs in pursuing Mr Carmine Zollo for the payment of an account of $3420.20.
As the amount is relatively small (but equals many days of labour for four people, high end machinery and product), and Lawyers fees would quickly escalate, we made a decision not to engage a Lawyer for this matter.
We wish to advise the court the following:
1.we do not intend to take part in this appeal and will accept any order made by the court in the appeal other than as to costs, and
2.we argue that the primary courts decision should be upheld on the grounds relied on by the primary court in its decision.
This position was confirmed in a further email of 18 October 2018.
I am satisfied that Shine has had sufficient notice of the appeal for the hearing of the appeal to proceed in the absence of a representative of that company.
Mr Zollo is a litigant in person in the appeal. As such, he is entitled to some leniency in relation to compliance with the court rules.[15] I approach the documents in which he articulates his appeal with some flexibility.[16] I need to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[17] At the same time, I also need to ensure that any latitude given to Mr Zollo as a litigant in person does not deprive Shine of its rights to procedural fairness and a fair hearing, notwithstanding that it chose not to appear at the hearing of the appeal.[18]
What issues arise for determination?
[15] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[16] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[17] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
[18] Nobarani v Mariconte [2018] HCA 36 [47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
The appeal notice sets out six grounds of appeal:
1.The Magistrate erred in respect to Claimant's witness' qualifications/experience.
2.The Magistrate erred in relation to the finish/standard of work and did not take into account the work failing to be of/to the Australian Standard in several areas.
3.In actual fact, the Professional Inspection Report requested by and provided to the Court by the appellant, clearly states the non-compliance of the work in relation to the Australian Standard (AS/NZ 2311).
4.The Magistrate did not take into account the respondent's claim of a 'high end finish' not being sought by the appellant was a matter of opportunism and speculation.
5. In actual fact, the respondent was of the full understanding of the expected finish required by the appellant and as a minimum, without expectation or requirement for prompting, the respondent should have delivered a result compliant with the Australian Standard.
6.Description and stated use of garage area blurred.
However, as I have already observed, 'an appeal against a judgment in a minor case may only be made on the grounds… that in dealing with the minor case there was a denial of natural justice'.[19] This means that, in a minor case, an 'unsuccessful party has no right of appeal on the merits'.[20] The only issue in the appeal is whether Mr Zollo was denied natural justice.
[19] MCCPA s 32(3)(b).
[20] Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [55] (Newnes JA, with whom Pullin JA agreed generally, and Buss JA agreed on this issue)
The nature of the right to natural justice was explained by Newnes JA in Rankilor v Circuit Travel Pty Ltd:[21]
It is trite law that the principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement in a particular case cannot be determined in the abstract but only in the context of the case... The requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court.
[21] Rankilor [57] – [58] (references omitted).
In International Finance Trust Co Ltd v New South Wales Crime Commission French CJ summarised the scope of the right to natural justice:[22]
Procedural fairness or natural justice lies at the heart of the judicial function ... It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.
[22] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]. See also [88] (Gummow & Bell JJ), [141] - 146] (Heydon J). See also: Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed).
As to ground of appeal 1, Mr Zollo says that the Magistrate erred in finding that Mr Nesbitt 'had worked for Dulux for over six years in the area of Industrial Coatings'. The evidence was that, whilst he had worked for Dulux for over six and a half years, only two of those were in industrial coatings.[23] Whilst there does appear to be an error, it is an error of fact. It is not a denial of natural justice.
[23] Mag Ct ts 30.4.18, page 4.
Each of grounds of appeal 2 to 6 is, in substance, an assertion that it was not open to the Magistrate to make the particular factual finding. Each is an assertion that the Magistrate made an error of fact. That is not sufficient to constitute a denial of natural justice. What is in substance an error of fact (or even of law) cannot be 'dressed up' as a denial of natural justice.[24]
[24] R v Burton; Ex parte Lowe [2003] WASCA 306 [62], [87] (Barker J, with whom Murray J & Roberts‑Smith JJ agreed); Alvaro v Fraser & Downsborough Designers Pty Ltd (1990) 20 ALD 762, 766 (Malcolm CJ, with whom Seaman & Nicholson JJ agreed).
Giving Mr Zollo an appropriate measure of latitude as a litigant in person, I will treat his affidavit as raising grounds of appeal which it is appropriate that I determine. That affidavit, viewed with the submissions before me, raises two potential grounds of appeal:
•Was Mr Zollo denied natural justice by the Magistrate refusing to receive Mr Burkett's written report?
•Was Mr Zollo denied natural justice in not being given an opportunity to tender documents?
Was Mr Zollo denied natural justice by the Magistrate refusing to receive Mr Burkett's written report?
In submissions before me, Mr Zollo drew my attention to the approach taken by the Magistrate of initially not allowing Mr Burkett to refer to his report, but instead asking him to give oral evidence about his views.[25] Shortly afterwards, Mr Burkett asked, and was granted permission, to refer to his report.[26] The next portion of his evidence is by reference to his report.[27] The Magistrate asked the first series of questions of Mr Burkett.
[25] Mag Ct ts 30.4.18, page 11.
[26] Mag Ct ts 30.4.18, page 11.
[27] Mag Ct ts 30.4.18, pages 11-13.
The materials provided by the Magistrates Court to this court are to the effect that no exhibits were tendered at the trial. So it is evident that Mr Burkett's report was not received into evidence.
Mr Zollo submitted that this meant that the Magistrate did not have access to the report to refresh his memory or clarify matters. However, the Magistrate, like this court, had access to the transcript of the hearing.
After the Magistrate had finished asking questions of Mr Burkett, Mr Zollo was given the opportunity to ask questions. He did not ask any questions.[28] So Mr Zollo had the opportunity to ask questions to bring to the attention of the Magistrate any points in Mr Burkett's written report which he felt were not adequately covered by the oral evidence to that point.
[28] Mag Ct ts 30.4.18, page 13.
At the hearing before me Mr Zollo was not able to identify any aspect of Mr Burkett's written report which he did not give oral evidence about.
In my view, Mr Zollo was given a reasonable and sufficient opportunity to lead evidence from Mr Burkett. He has not satisfied me that he was denied natural justice in this regard.
Was Mr Zollo denied natural justice in not being given an opportunity to tender documents?
In the hearing before me, Mr Zollo referred to a text message on 11 May 2017 from Mr Dunstan to him. Mr Zollo told me from the bar table that in it Mr Dunstan made a reference to providing a 'high end finish' to the floor of Mr Zollo's garage. This was the term ultimately used by the Magistrate in his reasons. Mr Zollo complains that he was not given the opportunity to tender this text.
Mr Zollo also confirmed that this text message had been identified by him in the List of Documents (Form 36A) which he filed in the Magistrates Court on 22 November 2017, under dot point 1: 'Hard copy of 9 texts passing between claimant and defendant between 2/05/2017 and 6/07/2017'. This document is in the materials provided to this court by the Magistrates Court.
The issue of the standard of the finish which Shine contracted to provide was clearly in issue in the pleadings filed by the parties which I have quoted above ([4] ‑ [6]).
From the transcript of the hearing on 28 February 2018 it is evident that Mr Zollo was not given the opportunity to give evidence or tender any documents. At the commencement of the hearing on 30 April 2018, the Magistrate went straight into 'calling the respective expert witnesses'.[29] At the conclusion of the evidence given by the expert called by Shine, the Magistrate invited Mr Zollo to call his witness, which he did. However, the Magistrate did not give Mr Zollo the opportunity to give evidence or tender documents. The problem is that the Magistrate then proceeded to determine that the 'defendant did not request a high end finish, but was entitled to expect satisfactory work to the standard ordered by him' (see [14] above). This finding accepts Shine's position as set out in the defence to counterclaim, without there being either an admission that this was the case or a factual basis for this finding. It is to this issue that Mr Zollo asserts in this court that he should have been, but was not, given the opportunity to give evidence and tender documents. I agree.
[29] Mag Ct ts 30.4.18, page 2.
Mr Zollo has satisfied me that he was not given the opportunity to tender the documents which he disclosed in his Form 36A. As a result, in my view, he was not provided with a reasonable opportunity to be heard.[30] There was in this regard a 'practical injustice'[31] sufficient to constitute a denial of natural justice.
[30] Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed).
[31] Rowe [51].
The conclusion that there was a denial of natural justice is not sufficient of itself to justify the court exercising the discretion in MCCPA s 43(7) to set aside the Magistrate's Decision and order a new hearing.[32] Not every denial of natural justice or procedural fairness will result in the appeal court ordering a new trial.[33] Specifically, an appeal court will not order a new trial if the denial of natural justice would have made no difference to the actual result at the impugned hearing or would inevitably result in the same outcome if a new hearing was ordered.[34] However, in the present case, I am not satisfied that, had Mr Zollo been able to tender documents, it would have made no difference to the Magistrate's finding as to the standard of the finish which Mr Zollo contracted to receive. I am also not satisfied that the same result as the Magistrate's Decision would be inevitable if a new hearing was ordered at which Mr Zollo was able to tender documents.
What final orders are appropriate?
[32] See generally: Blenkinsop v Holland [2018] WADC 146 [241] – [253] (Gething DCJ).
[33] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (judgment of the court); Buttarelli v Perpetual Ltd [2013] WASCA 254 [34] (judgment of the court); Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [112] (Murphy JA, with whom Pullin & Buss JJA agreed).
[34] Stead (145); Lourey [112], [124; Woolworths Ltd v Commissioner of Police [2013] WASC 413 [129] (Edelman J).
For the reasons which I have set out above, the appellant should have leave to commence the appeal out of time, the appeal should be allowed, the decision set aside and the case remitted to the Magistrates Court for a new hearing.[35]
[35] MCCPA s 43(7).
Costs and disbursements ordinarily follow the event.[36] Mr Zollo as a litigant in person is not entitled to any legal costs. He is, however, entitled to the court fees paid, in the amount of $462. However, as Shine elected to take no part in the appeal, I have not heard from them as to this order, so I will give them liberty to apply on this narrow issue.
[36] District Court of Western Australia Act 1969 (WA) s 64 (DCA); Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 1(1).
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AR
ASSOCIATE TO JUDGE GETHING30 NOVEMBER 2018
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