Chissell v Albany City Holden

[2011] WADC 126

CHISSELL -v- ALBANY CITY HOLDEN [2011] WADC 126

Last Update:  12/09/2011

CHISSELL -v- ALBANY CITY HOLDEN [2011] WADC 126
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WADC 126
Case No:	ALB APP:8/2010	Heard:	15 AUGUST 2011
Coram:	STAUDE DCJ	Delivered:	19/08/2011
Location:	ALBANY	Supplementary Decision:
No of Pages:	4	Judgment Part:	1 of 1
Result:	Application for extension of time to appeal dismissed. Appeal dismissed.
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: MAGISTRATES COURT OF WESTERN AUSTRALIA Coram: MAGISTRATE HAMILTON File Number: ALB CT 297 of 2009
Parties:	FREDERICK LEONARD CHISSELL ALBANY CITY HOLDEN
Catchwords:	Appeal Minor case Whether there is discretion to extend time Whether appeal precluded by s 32 Magistrates Court (Civil Proceedings) Act 2004
Legislation:	Magistrates Court (Civil Proceedings) Act 2004
Case References:	Grossetti v Grossetti [2011] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : ALBANY CITATION : CHISSELL -v- ALBANY CITY HOLDEN [2011] WADC 126 CORAM : STAUDE DCJ HEARD : 15 AUGUST 2011 DELIVERED : 19 AUGUST 2011 FILE NO/S : ALB APP 8 of 2010 BETWEEN : FREDERICK LEONARD CHISSELL

Appellant

AND

ALBANY CITY HOLDEN
Respondent

ON APPEAL FROM:

Jurisdiction : ALBANY MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE HAMILTON

File No : ALB CT 297 of 2009

Catchwords:

Appeal - Minor case - Whether there is discretion to extend time - Whether appeal precluded by s 32 Magistrates Court (Civil Proceedings) Act 2004

(Page 2)

Legislation:

Magistrates Court (Civil Proceedings) Act 2004

Result:

Application for extension of time to appeal dismissed. Appeal dismissed.

Representation:

Counsel:

Appellant : In person
Respondent : In person

Solicitors:

Appellant : Not applicable
Respondent : Not applicable

Case(s) referred to in judgment(s):

Grossetti v Grossetti [2011] WADC 78

(Page 3)

1 STAUDE DCJ: At the hearing of this matter I ordered that the appeal be dismissed and stated that I would publish reasons at a later date.

2 This appeal is from a judgment in a minor case. Section 32 of the Magistrates Court (Civil Proceedings) Act 2004 provides that no appeal lies against an order made by the court in the course of proceedings in a minor case unless there was a denial of natural justice in dealing with the minor case or there was a jurisdictional error in that either the minor case was not within the jurisdiction of the court or was not a minor case, or the judgment was beyond the court's jurisdiction.

3 The learned magistrate had before her a consumer/trader claim for $5,940 for loss and damage suffered by Mr Chissell (the claimant) by reason of the failure of a heater hose in his Nissan Patrol which caused the engine of the vehicle to overheat and seize on 22 July 2009 soon after it had been serviced and repaired by Albany City Holden (the respondent).

4 There is no transcript, but I have read the magistrate's notes of the evidence and of her reasons for decision. Her Honour found on the evidence at the hearing that the respondent was not liable in contract or negligence for the claimant's loss as the respondent did not have a contractual obligation to replace the failed hose and did not owe a common law duty of care to do so in the circumstances.

5 The claimant's principal contention was that the respondent should have replaced all the hoses. The respondent's invoice clearly showed that there were only two hoses replaced, neither of which was the hose which failed. Her Honour found on the basis of expert evidence that the appearance of the hose that failed at the time of the service did not indicate that it needed replacement. Her Honour also found that the engine did not malfunction in the way the claimant alleged, that is, suddenly and quickly, but rather that the failure of the hose would have caused the engine to heat over a period of time within which the claimant would have had warning of its failure by the temperature gauge and also the emission of steam from under the bonnet.

6 I am satisfied that the claim was a minor case for the purposes of the Act being a claim for not more than the minor case jurisdictional limit of $7,500. I am satisfied that the court had jurisdiction and that the judgment was not beyond the court's jurisdiction.

7 There is nothing to indicate to me on the papers or in anything said by Mr Chissell that would indicate that there was a denial of natural justice. I explained to Mr Chissell that natural justice involved two basic

(Page 4)

principles: that the decision-maker not be biased; and that a party who may be affected by a decision have the opportunity to be heard. I am satisfied that neither of those rules was breached.

8 The appeal should also fail because it was brought outside of the time limit of 21 days prescribed by s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 and r 51(4) of the District Court Rules. The preponderance of judicial opinion in this court, surveyed by Scott DCJ in Grossetti v Grossetti [2011] WADC 78, 50, is that neither the Act nor the rules confers a discretion to extend time.

9 In this case the learned magistrate's decision was given on 5 August 2010 but the notice of appeal was not lodged until 6 September 2010, well outside the statutory limit. Leave was granted on 7 June 2011 to amend the appeal to include an application for an extension of time but that application must be dismissed.

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