Citation : SHENTON -v- TOUCHSTONE FARMS PTY LTD [2015] WADC 7

Practice and procedure - Whether grounds of appeal comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether grounds of appeal have a reasonable prospect of succeeding - Whether appeal should be dismissed

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 32(3), s 40(4), s 40(5)

Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r32, r43(2)(g)

Devereaux-Warnes v Hall [2006] WASCA 268

DPJB v The State of Western Australia [2010] WASCA 12

Monteleone v The Owners of The Old Soap Factory [2007] WASCA 79

Shenton v Touchstone Farms Pty Ltd [2015] WADC 7

Simonsen v Legge [2010] WASCA 238

1 This matter was listed for hearing on 14 October 2015 to consider the respondent's application dated 9 September 2015 for the appeal to be dismissed on the basis that:

(a) the appellant has failed to comply with pt 5 r 32(4), r 32(5) or r 32(6) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules); and

(b) none of the grounds of appeal has a reasonable prospect of succeeding within the meaning of pt 5 r 43(g) of the Court of Appeal Rules.

2 The appeal is from a decision of Levy DCJ dated 28 January 2015: Shenton v Touchstone Farms Pty Ltd.[1] His Honour dismissed the appellant's appeal to the District Court against a magistrate's decision dated 27 September 2013 in which the magistrate dismissed the appellant's minor case claim against the respondent, and upheld the respondent's general procedure claim against the appellant in the sum of $18,465.51.

3 The litigation in the Magistrates Court involved a dispute concerning an agreement by the respondent to provide stud services to mares of the appellant. The appellant alleged that the respondent had failed to follow the correct insemination process and claimed for economic loss allegedly arising, inter alia, 'from the actions of the [respondent] by poor management methods and professionalism'.[2] The respondent's claim was a claim in debt.[3]

4 In relation to the appellant's claim for economic loss, the judge noted that the magistrate made the following findings.[4] The magistrate found the appellant's evidence to be substantially unreliable. He rejected the appellant's testimony that the proper process was not undertaken by the respondent, and rejected the appellant's evidence that his mares were not given 'half a chance' to be impregnated. The magistrate found, in effect, based on the evidence of Dr Davies (a veterinarian) and Mr Martin of the respondent, that 'the use of a teaser is an acceptable practice and reduces costs for the owners of the mares'. The magistrate also accepted certain evidence by Dr Davies in connection with the time for inspecting mares and found that Dr Davies' examinations were at appropriate intervals and within the typical range. The magistrate also concluded that in any event, the appellant had not produced any evidence to support his claim for economic loss.

5 In relation to the respondent's claim in debt, the judge observed[5] that the magistrate noted that the appellant had not disputed the terms of the relevant written agreements. The magistrate found that the appellant had failed to produce any evidence that he provided veterinary certificates to the respondent certifying that any of the mares were either not in foal, had aborted or died and that accordingly, under cl 1 of the relevant agreement, the respective service fees became immediately due and payable. The magistrate also found that under cl 12, the appellant was responsible for certain payments.

The decision of the primary judge in the District Court

6 Levy DCJ found that as the appeal proceeded, 'it became apparent that the only real ground of appeal relied upon by the appellant' was to the effect that there had been a miscarriage of justice by virtue of the fact that the evidence of a potential witness, Mr Dale Brooker, the manager of the respondent at the material time, was not available at the hearing.[6]

7 In relation to this matter, his Honour said:[7]

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.

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 [sic] 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.'

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.

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.

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.

I note that if the respondent [sic - appellant] 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.

9 The appellant filed a notice of appeal in this court on 18 February 2015.

10 In an appellant's case filed 3 July 2015, the appellant's grounds of appeal are in the following terms:

The learned judge did not properly consider the application for new evidence being brought by the appellant based on the statutory declaration of Dale Brooker the manager of the farm at Touchstone Farms at the time[.]

1. Even if leave were granted it is doubtful that the evidence of Mr Brooker would be capable of causing a different decision[.]
2. His Honour made the extraordinary comment that even if the appellant were to succeed it is anticipated the respondent would call evidence to rebut Mr Brooker[']s evidence[.]

1. The learned judge erred in his commentary that finality in litigation is a powerful policy consideration in this matter in the circumstances[.]

11 The respondent filed an affidavit sworn by its solicitor dated 9 September 2015. Amongst other things, it annexed the document sought to be tendered on the appeal before Levy DCJ. The document is described as an affidavit of Mr Brooker sworn 6 August 2014, ie, some 11 months after the magistrate's decision. The affidavit annexed a copy of an email sent by the appellant to Mr Brooker and Mr Martin on 22 November 2010, which stated, in effect, that certain mares were not pregnant. Mr Brooker's affidavit also stated, in effect, that it was not the policy of the respondent at the time to require veterinary certificates in accordance with cl 1 of the relevant agreement between the parties.

12 On the hearing of the application the appellant, without objection from the respondent, tendered the relevant agreement. Clause 1 provides:

The Stallion Service Fee ... will be due and payable on a positive forty-five (45) DAY pregnancy diagnosis ('the due date'). The Mare Owner must either on the due date pay the Service Fee or produce a veterinary certificate acceptable to the Stud certifying that the Mare is either not in foal, has aborted or died. In the event the Mare Owner defaults in either paying the Service Fee or providing the aforesaid veterinary certificate by the due date, the Service Fee will immediately become due and payable.

13 The respondent contended, amongst other things, that much of Mr Brooker's proposed evidence was inadmissible.[9]

14 The appellant's written submissions, elaborated upon orally by the appellant, included the following:

Brooker evidence corroborates the evidence of the appellant that he was advised on behalf of Touchstone of the mares that were not pregnant or had died and subsequently no fees were due on them.

Brooker further shows emails [sent] between himself and Shenton and Martin, that Martin was aware of the correspondence and acknowledged its content.

If this evidence had been available to the learned magistrate it is likely that the decision would have been different ... which would have reduced the debt by at least $11,000.

Even Brooker, who was the manager at the farm at the time, cannot or refuses to explain why the mares were not inspected for at least 10 weeks.

...

Brooker further states in his statutory declaration, that the policy of Touchstone ... contrary to the signed contract was to accept the breeder[']s word that the mares were pregnant or not.

The emails are proof that Martin did not tell the truth as well as the contradictory evidence of Brooker in regard to Martin[']s statement under oath. (emphasis added)

15 In oral submissions, the appellant said, inter alia:[10]

My argument is, very simply, this. I entered into a contract: 16 horses to Touchstone. There's no problem with that contract I totally concede.

But clause 15 is very explicit. They can, if they want, ask for a vet certificate. There is no evidence whatsoever that they did ask for a vet certificate from me, directly or indirectly. Their policy was that the manage checks everything out, we talk about it. If, then, the manager had spoken with me, as is his [sic] clear he did - and in his statutory declaration he did - and he was happy - and obviously Touchstone must have been happy because they replied to the email - then, in those circumstances, that was adequate.

The Mare Owner will provide to the Stud the mare's ASB Document of Description either prior to or upon delivery of the Mare to the Stud and the Mare Owner will also, upon request by the Stud at any time during the currency of this agreement, provide to the Stud any veterinary certificates required to enable the Stud to insure its interest in either the Mare or her progeny resulting from service by the Stallion.

17 There are some aspects of his Honour's reasoning which, at least on one view of the reasons for judgment, are not, with respect, entirely clear. First, his Honour dealt with the application for an extension of time to appeal against a judgment in a minor case without reference to s 32(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Civil Proceedings Act). Under s 32(3) of that Act, an appeal against a judgment in a minor case may only be made on limited grounds, including where there has been a denial of natural justice, or where the judgment was beyond the jurisdiction of the court. Secondly, in relation to the application for leave to appeal against the respondent's general procedure claim, no reference was made to s 40(4) and s 40(5) of the Civil Proceedings Act, which provide, in effect, that the District Court must decide the appeal on the material evidence before the Magistrates Court, unless leave is given to admit other evidence and leave may only be given in 'exceptional circumstances'. Thirdly, his Honour, at one point, said that he was '[l]eaving 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',[11] but subsequently found that it was doubtful that the proposed evidence of Mr Brooker would be capable of causing a different decision to have been made.[12] Fourthly, if, as his Honour found, there was no merit in the appeal in any event, that would have been an important factor pointing against the grant of an extension of time,[13] but his Honour granted an extension.[14]

18 Despite these matters, the ultimate question for determination, for present purposes, is whether any of the grounds of appeal has a reasonable prospect of succeeding, and whether the appellant has failed to comply with the relevant Court of Appeal Rules.

19 There is effectively only one purported ground of appeal, with three particulars. Neither the ground of appeal nor the accompanying submissions comply with pt 5 r 32(4), r 32(5) or r 32(6) of the Court of Appeal Rules. Nevertheless, for present purposes it may be accepted that the intended effect of the ground and the submissions is to challenge the primary judge's discretionary decision not to admit new evidence on the appeal from the magistrate's decision.

20 As this court observed in Monteleone v The Owners of the Old Soap Factory:[15]

In order to succeed in an appeal from a discretionary decision an appellant must establish that the primary judge has expressly or impliedly made a material error of fact or law: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. Failure to give adequate weight, or giving too much weight, to a relevant consideration does not give rise to a relevant error unless the failure really amounts to a failure to exercise the discretion actually entrusted to the Court: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519.

21 Even accepting that there may be some difficulties with his Honour's reasoning, in particular in relation to the third of the points referred to in [18] above, the appellant's ground of appeal and submissions do not disclose any arguable basis for concluding that the judge made any material error in not allowing the additional evidence to be led on the appeal. In this regard, it is plain that the proposed evidence was new evidence rather than fresh evidence,[16] and included an email in 2010 from the appellant himself. There is no challenge to the primary judge's findings that the appellant:

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

(c) cross-examined Mr Martin on the basis that the respondent had not called Mr Brooker to corroborate Mr Martin's evidence; and

(d) completed his case in both his own claim and the respondent's claim without asking for an adjournment, and knowing that Mr Brooker had not given evidence.

22 Also, even if it be assumed that s 32(3) of the Civil Proceedings Act did not preclude an appeal against the magistrate's decision with respect to the appellant's minor case claim, the appellant does not plausibly contend that the new evidence would overcome the magistrate's finding that he had not produced any evidence of economic loss in relation to his claim. Nor could the new evidence affect the proper construction of the relevant agreement upon which the respondent's claim in debt was based, and in relation to which the judge made the unchallenged finding that the magistrate had found that the appellant had not disputed the terms of the relevant agreement. In particular, insofar as the appellant contends that cl 15 of the agreement affects the proper construction of cl 1 of the agreement, that contention is not arguably assisted by any reference to Mr Brooker's proposed new evidence.

23 Moreover, the judge was plainly correct to take into account as a relevant consideration the importance of finality in litigation and that except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial.[17]

24 In these circumstances, the appellant's substantive contention, to the effect that there is material error in the primary judge's exercise of discretion not to admit the new evidence on appeal, is not reasonably arguable. Neither the ground nor the submissions in support suggest that there is any reasonable prospect of successfully arguing that there were 'exceptional circumstances'[18] upon which leave could properly have been given to adduce the new evidence.

25 The appeal should be dismissed on the basis that no ground of appeal has a reasonable prospect of succeeding.

[1] Shenton v Touchstone Farms Pty Ltd [2015] WADC 7 (primary reasons).

[13] Simonsen v Legge [2010] WASCA 238 [8].

[15] Monteleone v The Owners of The Old Soap Factory [2007] WASCA 79 [36].

[16] DPJB v The State of Western Australia [2010] WASCA 12 [61].

[17] Devereaux-Warnes v Hall [2006] WASCA 268 [26].

[18] Section 40(4) and s 40(5) of the Civil Proceedings Act.