Appeal - Magistrates Court (Civil Proceedings) Act 2004 - Minor case claim - Extension of time to appeal - Fresh or new evidence

Magistrates Court (Civil Proceedings) Act 2004

District Court Rules 2005 (WA)

Allesch v Maunz [2000] HCA 40

Devereaux-Warnes v Hall [2006] WASCA 268

Knight v Anderson (1997) 17 WAR 85

Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460

Metwally v University of Wollongong (1985) 59 ALJR 481

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359

Mulholland v Mitchell [1971] AC 666

Rankilor v Circuit Travel Pty Ltd. [2013] WASCA 148

Shenton v Touchstone Farms Pty Ltd [2012] WASCA 261

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

ZAI Motors v Smiler [2014] WADC 76

1 LEVY DCJ: This is an application for an extension of time to appeal against the decision of a magistrate sitting at Fremantle Magistrates Court in the civil jurisdiction on 27 September 2013. If the extension of time is granted, the appellant seeks leave to introduce fresh or new evidence (new evidence) on the appeal. The appellant's only real ground of appeal relates to the new evidence which the appellant contends would have caused the learned magistrate to have differently decided the matter below.

3 The proceedings were commenced on 15 March 2011 by the appellant filing a 'minor case claim'. The amount of the claim was stated to be $10,000 plus court and service fees. The claim was expressed as follows:

• The claimant claims costs of this action and interest.

• The claimant suffered economic loss from the actions of the defendant by poor management methods and unprofessionalism
• The claimant took 15 mares to be impregnated and only three are pregnant - they were (horses named)
• The claimant has been refused access and return of the horses and documents by the defendant causing loss of earnings and angst
• The claimant suffered damages and loss of earnings by the defendant's action, or lack thereof, and refusal to return paperwork
• The defendant has refused to make good an error of paperwork to Magic Million claiming (wrongly) ownership of horses

4 The claim was consequently one for an unliquidated sum although it was stated to be for an amount of $10,000.

5 The respondent subsequently filed a notice of intention to defend the claim.

6 The claim was listed for trial on 15 June 2011. On 15 June 2011 the appellant appeared before a magistrate sitting at Fremantle. The respondent did not appear. The learned magistrate then ordered that, in default of the respondent's appearance, judgment be entered for the appellant in the sum of $10,000 plus costs of $137.95.

7 The respondent subsequently appealed against the default judgment to the District Court. On 30 September 2011 Curthoys DCJ allowed the appeal and ordered that the default judgment be set aside. The appellant subsequently unsuccessfully appealed that decision (Shenton v Touchstone Farms Pty Ltd [2012] WASCA 261).

8 On 28 June 2011, Touchstone Farms Pty Ltd filed a statement of general procedure claim against Mr Shenton. That claim was expressed to include as follows:

1. By stabling services and agistment agreement made between (Touchstone Farms Pty Ltd) and Richard Shenton (on or about 3 August 2010) the claimant agreed to provide stud services to mares of the defendant on certain terms and conditions (the agreement).
2. It was a term of the agreement that:

(a) the defendant pay the claimant a stallion service fee of $4,400 inclusive of GST (the service fee) for each mare the subject of a positive pregnancy diagnosis: clause 1;

(b) the defendant pay the claimant [agistment] fees at the prescribed rates on those mares sent to the claimant stud for servicing: clause 3;

(c) the defendant be responsible for the payment of all transportation costs of the defendant's mares and their progeny to and from the claimant's stud and all treatments, examination, swabs and medicines administered to the defendant's mares by the stud's veterinarian, employees or others whilst at the claimant's stud: clause 12.

(a) in or about August 2010 the defendant delivered 16 mares to the claimant's stud for servicing;

(b) 6 of the defendant's 11 mares that were covered became the subject of positive pregnancy diagnosis;

(c) 5 mares of the defendant were never able to be covered, either due to the true owners claiming ownership of same or the defendant removing the mares from the claimant prematurely;

(d) thereafter the claimant rendered to the defendant invoices in the total sum of $26,399.81 in respect of service fees, agistment fees, and veterinarian costs (the defendant's debt).

1. In or around October 2010 the claimant nominated for the defendant as agent of four yearlings being sold by the defendant through the Magic Millions auction sales in February 2011, to thereby ensure the claimant received the sale proceedings of those yearlings in part payment of the defendant's debt. The claimant received $7,934.30 from the Magic Millions auction sales in part payment of the defendant's debt.
2. There remains a balance of $18,465.51 owing by the defendant to the claimant in respect of the defendant's debt, particulars of which are set out in annexure A.

9 Ultimately Touchstone Pty Ltd sought recovery of the sum of $18,465.51.

The hearing of the matters and the learned magistrate's reasons

10 With the consent of both parties, the appellant's minor case claim for $10,000 (which was the subject of the earlier appeals to the District Court and the Court of Appeal and which were subsequently remitted to the Magistrates Court for rehearing) and the respondent's general procedure claim in the sum of $18,465.51 were dealt with together. It is apparent from reading the relevant Magistrates Court file and the submissions made by the parties orally at the hearing of this appeal that there were numerous delays in the resolution of these claims. The trial dates were originally fixed by a magistrate at Fremantle Magistrates Court for hearing on 17 April 2013. At that time the appellant (Mr Shenton) made an oral application for an adjournment. The original trial date of 17 April 2013 was vacated and a new hearing date set.

11 Ultimately the trial of these matters took place at Fremantle Magistrates Court before her Honour Magistrate Langdon on 26 and 27 August 2013. Magistrate Langdon reserved her decision.

12 On 27 September 2013 her Honour Magistrate Langdon delivered her decision in relation to both the appellant's minor case claim in the sum of $10,000 as well as the respondent's general procedure claim in the sum of $18,465.51. The appellant's claim was dismissed and the respondent's general procedure claim was allowed. Her Honour made the following orders:

1. Judgment is entered for the claimant against the defendant in the sum of $18,465.51.
2. Interest on the sum at the rate of 6% per annum from 4 August 2011 until judgment.
3. Cost to be taxed if not agreed.

13 It is apparent from the reading of the learned magistrate's reasons that her Honour carefully considered the evidence at trial. Her Honour's reasons were delivered on 27 September 2014. Her Honour carefully went through all of the evidence in the trial including the evidence given and relied upon by the appellant, the respondent's witness Mr Glenn Martin, as well as the other witnesses in the case. Those witnesses included a Mr Samuel Gordon Dye and a vet called by the appellant, Dr Robert Davies. Ultimately, after carefully considering the evidence in the case, her Honour (at pages 16 and 17 of her reasons for decision) said as follows:

I prefer the evidence of Dr Davies and Mr Martin over the evidence of Mr Shenton. I reject Mr Shenton's evidence, as I find it to be substantially unreliable. His testimony is inconsistent with the evidence of the very experienced vet, Dr Robert Davies, whom I found to be a very reliable witness. Mr Shenton, in my view, has taken a somewhat blasé approach in running his business in that, by his own admission, he does not have any records of his dealings with Touchstone Farm and he does not have records from the 2010 horse breeding season.

This means that both his claim and his defence to Touchstone Farms' claim are based on mere assertions that are not corroborated by any other evidence. I reject Mr Shenton's testimony that proper process was not undertaken by Touchstone Farm and that his mares were not given half a chance to be impregnated. On the contrary, I find that the evidence of Dr Davies and Glen Martin was consistent in stating that the use of a teaser is an acceptable practice and reduces costs for the owners of the mares.

Dr Davies evidence is that there is no point in inspecting the mares before 1 September and I find that the examinations performed by Dr Davies on Mr Shenton's mares during the relevant period were at appropriate intervals and within the typical range, as evidenced in the annexure 4 documents contained in exhibit 3. Also the consistent evidence of Dr Davies and Mr Martin is that various factors can affect the successful cycling of the mares.

Mr Shenton did not dispute the terms of the two agreements he entered into with Touchstone Farms on 3 August 2010. I find that the terms of those agreements is certain and Mr Shenton is responsible for the payment of those costs detailed in the agreements. Mr Shenton failed to produce evidence that he provided any veterinary certificates to Touchstone Farm certifying that any of the mares were either not in foal, had aborted or died. Pursuant to clause 1 of those agreements, the respective service fees became immediately due and payable by Mr Shenton to Touchstone Farms. Furthermore, under clause 12, Mr Shenton is responsible for the payment of all treatments, examinations, swabs and medicines administered to the mare and/or her progeny whilst at the stud, whether by the stud's veterinarian, employees of the stud or others. Accordingly, Mr Shenton has failed to prove his claim to the request standard and his general procedure claim is dismissed.

Nor has Mr Shenton produced any evidence to support his claim for economic loss, moreover by his own admission Mr Shenton agreed that the proceeds of a sale of the yearlings at the Magic Millions sale in 2011 would be paid to Touchstone Farms to offset the costs of the 2010 service fees for his mares. I find based on the evidence before me that Touchstone Farms paid the entry fees and properly entered those four yearlings as Mr Shenton's agent. The funds paid by Magic Millions to Touchstone Farms were properly credited to the amounts owing to Touchstone Farms by Mr Shenton, as the transaction was performed by express agreement by Mr Shenton. I therefore find that Mr Shenton does not have a defence to the claim by Touchstone Farms. He has failed to pay the balance of the monies owing on invoices rendered by Touchstone Farms to him in the sum of $18,465.51. He has no lawful excuse for breach of contract and Touchstone Farms has suffered economic loss as claimed in the form of those outstanding fees and they are entitled to that sum.

14 On 7 November 2013 the appellant lodged an appeal notice against the decision of Magistrate Langdon. That appeal notice was expressed to contain grounds of appeal as follows:

1. That the magistrate erred on the facts of the case.
2. Further and better particulars of the appeal will be made available when the transcript of the trial is made available as requested on 10/10/2013.

15 Since filing that appeal notice which was some 20 days out of time, the appeal has been the subject of numerous case management hearings and various orders relating to the conduct of the appeal. The appellant has filed a number of documents called 'appeal notices'. The file contains 'appeal notices' dated 18 February 2014, 17 March 2014, 14 April 2014 and 14 May 2014. At the hearing of this appeal, the appellant sought leave to rely upon the appeal notice dated 14 May 2014 (and filed on 15 May 2014). Leave was granted. That appeal notice had attached to it a document called 'outline of submissions' which were in effect:

1. an application to introduce new witnesses and new evidence; and
2. submissions on the merits of the appellant's case.

16 The grounds of appeal articulated in the 'appeal notice' dated 14 May 2014 occupy two pages. Grounds 1, 2, 4 and 5 were effectively aimed at attacking the learned magistrate's decision on the basis that her Honour:

(a) did not properly weigh the evidence in the case (Ground 1);

(b) erred in assessing the oral evidence of Mr Glen [sic] Martin (Ground 2);

(c) erred in accepting the oral evidence of Mr. Glenn Martin (Ground 4);

(d) erred by failing to accept some of the appellant's evidence (Ground 5).

17 Grounds 1, 2, 4 and 5 essentially amount to assertions that the magistrate made a wrong decision on the facts. Since the court's appellate power is by way of rehearing, the appellant must demonstrate an error in the court below: ZAI Motors v Smiler [2014] WADC 76 [12] (Bowden DCJ) referring to Allesch v Maunz [2000] HCA 40 [23]. Even if there were competing inferences available to be drawn at the hearing, the fact that a magistrate preferred one over another does not demonstrate appealable error: Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359, 369.2.

18 The appellant did not provide particulars, over and above those contained in the 'grounds of appeal', to demonstrate that the learned magistrate's decision was against the weight of evidence: r 51(3) of the District Court Rules 2005 (WA).

20 In any event, as the appeal proceeded it became apparent that the only real ground of appeal relied upon by the appellant was to one to the effect that there had been a miscarriage of justice by virtue of the fact that the evidence of a Mr Dale Brooker was not available at the hearing. The following exchange with the appellant makes this clear (ts 12):

LEVY DCJ: So you are really confining your appeal to your application to adduce the new evidence ---

THE APPELLANT: Yes, sir.

LEVY DCJ: --- of Mr Brooker ---

THE APPELLANT: Without that I've got a very weak, weak position. Without that I concede ---

LEVY DCJ: And introduce ---

THE APPELLANT: --- a very weak ----

LEVY DCJ: ---his evidence. And you say that had that evidence been available to the court below, what would it have done?

THE APPELLANT: Exactly, sir. So without Mr Brooker I am stuffed.

21 The appellant, as part of these proceedings, sought leave to introduce the evidence of Mr Brooker which he submitted was either fresh or new evidence. That evidence was set out in the affidavit of Mr Brooker 'sworn' at Pinjarra on 6 August 2014 together with two attachments being emails referred to in the affidavit. The appellant's contention is that had this evidence been available at the trial, the learned magistrate would have come to a different conclusion in relation to the matter.

22 At the hearing of this appeal, I invited the appellant to elaborate upon how, if the evidence of Mr Brooker had been available to the learned magistrate, it would have affected the outcome of the hearing. For that purpose, I accepted the affidavit of Mr Brooker together with the attachments on the appeal. The appellant's submissions on this point were convoluted and generalised (ts 12, 13, 15, 16, 17, 18, 19, 20 and 21). In summary however, the appellant contends that Mr Brooker's evidence would have corroborated his evidence on key points. Additionally, if accepted, it would have contradicted Mr Martin's evidence and therefore affected Mr Martin's credibility as a witness. The net result, according to the appellant, is that the learned magistrate would have come to a different decision on both his minor case claim and the respondent's claim.

23 Fundamentally, so far as the appellant's claim is concerned, the learned magistrate, after carefully assessing his evidence and the evidence of Touchstone Farms, concluded that the appellant had produced no evidence to support his claim for economic loss. In those circumstances, even if Mr Brooker's evidence had been available at the hearing, it is difficult to see how the new evidence could have had any real bearing on, at the very least, his appeal so far as it relates to his claim.

24 Ultimately however, it is not necessary to determine whether Mr Brooker's evidence would have had the effect that the appellant contends it would have.

25 In order for the appeal to succeed it would be necessary for the appellant to persuade me that he should be permitted leave to introduce the fresh or new evidence on the appeal. The question of whether or not fresh or new evidence should be admitted on an appeal has been considered on numerous occasions. The principles to be applied in such circumstances were discussed by the House of Lords in Mulholland v Mitchell [1971] AC 666 and followed by the Supreme Court of Western Australia in Knight v Anderson (1997) 17 WAR 85. In broad terms, those principles are to the effect that the discretion of a court to admit the new evidence as to new matters is a matter of discretion. Fresh or new evidence will only be allowed to be introduced when to refuse it would be an affront to common sense, or sense of justice: Mulholland (679 - 680) (Lord Wilberforce); Knight (90) (Malcolm CJ). In Devereaux-Warnes v Hall [2006] WASCA 268 the Court of Appeal considered the question of the distinction between fresh and new evidence. Buss JA said as follows [25]:

... Fresh evidence is, of course, evidence that could not have been obtained with reasonable diligence for use at the trial. New evidence, on the other hand, is evidence which could have been so obtained.

26 Depending on the construction of whether it is new or fresh evidence will determine what test to be applied on whether to receive the evidence on a hearing of an appeal. Notwithstanding whether it is fresh or new a question remains whether it would be unjust to refuse to admit the evidence in the appeal: Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460, 484 - 487.

27 It is clear that at the time of the hearing the appellant was aware of Mr Brooker. Indeed the appellant had issued a summons to Mr Brooker prior to the hearing. During the course of the hearing itself the question of why Mr Brooker was not being called as a witness was raised. Essentially the appellant now contends that:

(a) he wanted to have Mr Brooker called and had issued a summons; and

(b) did not know precisely what Mr Brooker would say.

28 I note that in cross-examining Mr Glen Martin during the course of the hearing, the following exchange took place:

APPELLANT: Did you subpoena him [Dale Brooker]?

MARTIN: I believe we couldn't find his address, I believe that was the problem. I think we did try to subpoena him.

APPELLANT: You spoke to him a number of times on the phone.

MARTIN: I've spoken to him before on the phone, yes.

APPELLANT: But you knew he was there. So if you had wanted to subpoena him, you could have done it.

MARTIN: We didn't know what the issue was at the time.

APPELLANT: You've said, in your communication with me now, that most of the stuff that was done at Touchstone Farm between myself and yourself was done with Dale.

MARTIN: I would imagine you would have spoken more to Dale then me, but I don't honestly know because I don't know what your conversations are with Dale so how would I know.

APPELLANT: So I'm putting to you that it's common sense that you would have brought him as a witness to verify these things that happened.

MARTIN: I think we decide the witness, not you.

29 The appellant did not seek an adjournment of the hearing to call Mr Brooker. The appellant now contends that there has been a miscarriage of justice by virtue of the failure to call Mr Brooker as a witness.

30 Two significant public policy considerations need to be considered. The first is the need to ensure finality in litigation. The second is the doctrine of estoppel by election in the conduct of litigation. Neither is absolute in determining whether new evidence should be allowed to be introduced on an appeal. They are however relevant in considering whether to allow an appeal based upon new evidence. It is necessary to determine the particular circumstances of each case: Rankilor v Circuit Travel Pty Ltd. [2013] WASCA 148 [16] - [17] (Buss JA); Metwally v University of Wollongong (1985) 59 ALJR 481, 483; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497.

31 In my view the appellant made a forensic judgment at the time of the hearing. He chose not to seek an adjournment of the hearing to call Mr Brooker. Instead, he sought to make forensic mileage at the hearing from the fact that the respondent had elected not to call Mr Brooker because, according to his assertion, Mr Brooker would not have supported the respondent's case. That was a decision made by the appellant at the time of the hearing. There were good forensic reasons at that time for such a course. The fact that Mr Brooker may now support his case does not necessarily assist him given his forensic decision not to seek an adjournment of the hearing in order to attempt to call him.

32 I note that if the respondent were to succeed on the appeal, it is anticipated that the respondent would call evidence to rebut Mr Brooker's proposed evidence. An affidavit of Mr David Bishop had been prepared and was forwarded to the court by the respondent's lawyer. At the hearing of this appeal the respondent expressly disavowed any reliance upon that affidavit for the purposes of this appeal. For those reasons I will not take into consideration the contents of that affidavit. Nonetheless, I would still need to be persuaded by the appellant that his appeal should succeed. Leaving aside the question of whether the evidence of Mr Brooker would have caused or have been likely to cause the learned magistrate to have arrived at different decisions, I am not so persuaded that the appeal should succeed.

33 The interests of justice do not require that the appellant be granted leave to adduce the fresh or new evidence for the following reasons:

1. No proper explanation has been given for the appellant's failure to seek to adjourn the hearing or to adjourn the hearing.
2. The appellant, in my view, made a forensic decision not to seek the adjournment to call Mr Brooker.
3. Even if leave were granted, it is doubtful that the proposed evidence of Mr Brooker would be capable of causing a different decision to have been made.
4. Finality in litigation is a powerful policy consideration. Except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial.

34 Consequently, whilst I would allow an extension of time to appeal, I would dismiss the appeal. The appellant is ordered to pay the respondent's costs of the appeal, such costs to be taxed if not agreed.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : SHENTON -v- TOUCHSTONE FARMS PTY LTD [2015] WADC 7 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

1 LEVY DCJ: On 28 January 2015 I handed down my decision in this matter. Having dismissed the appeal I ordered that the appellant pay the respondent's costs of the appeal and that such costs be taxed if not agreed.

2 For the avoidance of doubt I order that the appellant pay the respondent's costs of the appeal including any reserved costs, such costs to be taxed if not agreed.