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Zollo v Shine It Cleaning Services

Zollo v Shine It Cleaning Services

Case [2018] WADC 166 30 November 2018

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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…

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.

Continue reading Zollo v Shine It Cleaning Services

Details

AGLC: Zollo v Shine It Cleaning Services [2018] WADC 166
Case: [2018] WADC 166
Decision Date: 30 NOVEMBER 2018

CaseChat Overview and Summary

The appeal by Shine It Cleaning Services against a decision of a Magistrates Court in a minor case was concerned with whether there was a denial of natural justice due to the absence of an opportunity to tender documents. The respondent, Mr Zollo, had brought an action against the appellant, Shine It Cleaning Services, for the recovery of unpaid wages. The appellant argued that there was a failure to afford them natural justice because they were not given the opportunity to tender documents that were relevant to the case.

The legal issue before the court was whether the denial of the opportunity to tender documents constituted a breach of natural justice, thus warranting the setting aside of the Magistrates Court's decision. Specifically, the court had to determine if the procedural unfairness caused by the appellant's inability to present its evidence warranted the overturning of the decision.

The court found that the procedural irregularity did not amount to a denial of natural justice sufficient to warrant setting aside the decision. The appellant had not demonstrated that the outcome of the hearing would have been different had they been given the opportunity to tender the documents. The court held that while the procedural irregularity was a concern, it did not reach the threshold of unfairness necessary to justify setting aside the decision. Consequently, the appeal was dismissed, and the original decision of the Magistrates Court was upheld.

The final orders of the court were that the appeal be dismissed, and the original decision of the Magistrates Court in favour of Mr Zollo for unpaid wages was confirmed. The appellant was ordered to pay the costs of the appeal.

Orders