Armstrong v City of Cockburn
[2018] WADC 103
•23 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ARMSTRONG -v- CITY OF COCKBURN [2018] WADC 103
CORAM: PRIOR DCJ
HEARD: 6 APRIL 2018
DELIVERED : 23 AUGUST 2018
FILE NO/S: APP 81 of 2017
BETWEEN: FAY MARIE ARMSTRONG
Appellant
AND
CITY OF COCKBURN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE COCKRAM
File Number : PE GCLM 19475 of 2015
Catchwords:
Appeal - Magistrates Court - Application to set aside default judgment - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court (Civil Proceedings) Rules 2005
Rates and Charges (Rebates and Deferments) Act 1992
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr T W Kennedy |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | CS Legal |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Hall v Hall [2007] WASC 198
Reilly v Jessop [2012] WADC 93
PRIOR DCJ:
Introduction
Mrs Armstrong appeals from a decision of his Honour Magistrate Cockram made on 4 August 2017 dismissing her application to set aside a default judgment obtained against her by the respondent, City of Cockburn (the City).
Mrs Armstrong's right to appeal against the decision of the magistrate arises pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA).
This appeal is by way of a 'reconsideration of the evidence' before the Magistrates Court (District Court Rules 2005 (WA) r 50(1); MCCPA s 40(4)(a)) and is therefore an appeal in the nature of a re‑hearing: Reilly v Jessop [2012] WADC 93.
To succeed the appellant must demonstrate a legal, factual or discretionary error by the magistrate: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
If such an error has been made the appellate court may substitute its decision for the decision of the magistrate. If no error is shown, the appellate court cannot intervene.
Mrs Armstrong appeared in person at the hearing of the appeal.
Background
Mrs Armstrong is the registered proprietor of 18 Adela Place, Spearwood (the property).
The property is situated in the suburb of Spearwood which is rateable land within the district of the City.
On 21 December 2015 the City applied by general procedure claim for an order that Mrs Armstrong pay it the sum of $8,639.91 for rates and service charges payable in respect of the property, plus recovery costs and interest (the claim).
According to the affidavit of service the claim was served on 22 March 2016 at the property by handing the document to a person who the process server reasonably believed to be over the age of 18 years. The affidavit of service did not state that Mrs Armstrong was personally served with the claim. There was some discussion as to the efficacy of the service before the magistrate but the magistrate's decision indicates that he was satisfied that service was properly effected.
On 9 September 2016, the city applied for default judgment against Mrs Armstrong as no response had been lodged to the claim. Default judgment was entered on 16 September 2016 for the amount of $9,057.55 pursuant to s 19(2) of the MCCPA.
On 2 May 2017 Mrs Armstrong filed an application to set aside the default judgment pursuant to s 19(3) of the MCCPA (the application).
The application to set aside
At a hearing on 29 May 2017 the magistrate gave Mrs Armstrong some general guidance as to what was required to set aside a default judgment. The application was then listed for hearing on 4 August 2017.
At that hearing on 4 August 2017, Mrs Armstrong contended that she had a defence to the claim on the basis that as an eligible pensioner she was entitled to a deferment of rates pursuant to pt 4 div 1 of the Rates and Charges (Rebates and Deferments) Act 1992 (the Act).
In support of her application, Mrs Armstrong filed two affidavits which were sworn by her on 2 May 2017 and 12 June 2017.
In her affidavit sworn on 2 May 2017, Mrs Armstrong deposed that she was the holder of an Australian Government Department of Human Services Pensioner Concession card and was therefore eligible to have the rates deferred.
In her affidavit sworn 12 June 2017 Mrs Armstrong deposed that on numerous occasions she spoke with a person named as Jenny in the City's rates department seeking to have the rates deferred or discounted on the basis that she was an eligible pensioner and that her requests were declined.
In neither affidavit, however, did Mrs Armstrong state that she had made a formal written application for deferment of her rates, or that such an application was declined. At the hearing, however, Mrs Armstrong said she has made an application for a deferment, but it was rejected in a letter by the City. Mrs Armstrong gave no evidence and did not submit she had exercised her review rights under the Act.
The City filed an affidavit affirmed by a Mr Mauricio on 12 July 2017 in opposition to Mrs Armstrong's application. This affidavit sets out the history of how Mrs Armstrong's obligation to pay rates for the property to the City arose, what rate notices had been issued to Mrs Armstrong, what rates had been paid by Mrs Armstrong, a summary of the claim made by the City and the default judgment entered in the Magistrates Court. There was no evidence provided by the City that an application was made by Mrs Armstrong to defer the payment of the rates for the property to the City or a refusal of any such application by Mrs Armstrong had been made by the City.
The magistrate held that Mrs Armstrong did not have an arguable defence to the claim. He considered on the material provided to the court that Mrs Armstrong still had a liability to pay the rates for the property to the City.
His Honour was of the view that even if Mrs Armstrong was eligible for a deferment of the rates, the City could decline her application.
His Honour found that the court did not have the jurisdiction to hear a complaint as to the City's refusal to grant a deferment.
Appeal
Mrs Armstrong filed an appeal notice (notice) dated 24 August 2017 in this court. The notice contains one ground of appeal in the following terms:
The magistrate erred in finding that the rates could not be deferred.
Attached to the notice is a photocopy of Mrs Armstrong's Australian Government Pensioner Concession Card. It is not disputed that Mrs Armstrong is a pensioner and a widow. Mrs Armstrong's husband died in 2004.
Mrs Armstrong on the hearing of the appeal did not make an application pursuant to s 40(4)(b) of the MCCPA for leave to admit other evidence.
Mrs Armstrong did not include a ground of appeal that she had not been served with the claim by the City although she had argued this before the magistrate at the hearing on 4 August 2017. As a result, and consistent with the sole ground of appeal, the City's response to Mrs Armstrong's appeal was the only issue to be determined was the deferral of Mrs Armstrong's rates and whether the magistrate erred in dismissing her application on the ground that she had not demonstrated to the magistrate an arguable defence as to the deferral of the rates.
The primary question that the magistrate was required to consider was whether Mrs Armstrong had a sufficient defence on the merits. For her application to set aside the default judgment to be successful, it was for Mrs Armstrong to present a credible defence demonstrating that, if the default judgment were set aside and the matter argued on its merits, she would have a real prospect of success: Hall v Hall [2007] WASC 198.
In principle, the discretion to set aside a regularly entered default judgment is:
(a)unfettered and no hard and fast rules can be laid down as to how it is to be exercised; and
(b)to be exercised so as to do justice between the parties, having regard to the particular circumstances of the case.
The court below was not required to form a provisional view as to probable findings of fact at trial. What Mrs Armstrong was required to show on affidavit was that her defence was not inherently incredible and that if her evidence were accepted at trial she would have a real prospect of success: Hall v Hall.
Deferring rates payment
The stated purposes of the Act are set out in s 8:
The purposes of this Act are —
(a)to introduce, in respect of any prescribed charge payable, a method by which —
(i)the rebate, or deferment of payment, allowable by administrative authorities to pensioners; and
(ii)the rebates allowable to seniors; and
(iii)questions of eligibility; and
(iv)the determination of entitlements,
may for the future be rationalised and inequities eliminated; and
(b)to enable the Minister to ensure that the administrative requirements involved in —
(i)the determination and allowance of rebates or deferments by administrative authorities; and
(ii)reimbursement, or the provision of financial assistance, by the Minister,
are kept to a minimum.
It is not in issue that the rates in question are a 'prescribed charge': s 3.
Nor is it in issue that the City is an 'administrative authority' being the authority making the prescribed charge: s 3.
Section 43 (1) provides:
In relation to any prescribed charge, the administrative authority may, subject to subsections (1a), (1b) and (2), allow payment of a prescribed charge to be deferred where —
(a)the person liable to pay the charge is an eligible pensioner or is registered as an eligible pensioner during a rating year; and
(b)the conditions to which a rebate of that charge is subject have been met; and
(c)the land to which the charge related belongs to one person only, unless subsection (3) or subsection (4) applies,
but the administrative authority under section 47 may decline to allow the payment to be deferred.
Section 12 provides that a determination by an administrative authority may be referred for review:
(1)Without prejudice to any right under the Parliamentary Commissioner Act 1971, a person aggrieved by a determination made by an administrative authority —
(a)as to any eligibility or entitlement of that person under this Act; or
(b)as to a change in conditions, circumstances or facts, under section 21; or
(c)to amend or cancel any registration, under section 37; or
(d)that effect should not be given to a registration, by reason of section 39(1); or
(e)that a rebate or deferment should not have been allowed, under section 39(2),
may request the administrative authority by which the determination was made to furnish in writing a statement setting out further or better particulars of the reasons for the determination and a summary of the findings upon which the determination was based, subject to subsection (2), and the administrative authority shall furnish that statement as soon as is practicable thereafter.
(2)Where a determination referred to in subsection (1) was notified in writing by the administrative authority to the person aggrieved any request for particulars for the purposes of this section must, unless the administrative authority concerned otherwise agrees, be made within 21 days after receipt of that notification.
(3)Within 21 days after receipt of the statement of particulars requested under subsection (1) the person aggrieved may, by notice in writing specifying the reason why in the opinion of that person the determination should be changed, request the administrative authority which made the determination to review it.
(4)Upon receipt of a notice under subsection (3) the administrative authority, if it does not agree to change the determination in a manner acceptable to the person aggrieved, shall ensure that the circumstances giving rise to the determination are referred as soon as is practicable thereafter to an authorised review officer, being a person appointed by the administrative authority with the approval of the Minister, to be investigated by that officer.
(5)A person may be appointed for the purposes of subsection (4) by more than one administrative authority.
If Mrs Armstrong did in fact make a formal application for deferment of payment of rates and was aggrieved by the City's refusal, she was entitled under s 12(1) to require the City to furnish a written statement setting out the reasons for the decision within 21 days.
Furthermore, had Mrs Armstrong made an application pursuant to s 43 of the Act that was refused, Mrs Armstrong could then have asked the City to review its decision pursuant to s 12(4). If the City's position did not change, the City would be required by s 12(4) to refer the circumstances to an authorised review officer. A decision reached by an authorised review officer under the Act, cannot be challenged, appealed against, quashed or called in question by any court: s 14(1) of the Act.
It is clear from these provisions and the Act read as a whole that it provides a statutory scheme for the establishment and determination of entitlements to deferment of rates, as well as the means by which adverse determinations may be reviewed.
Merits
Mrs Armstrong did not show that she had been granted a deferment of rates payable to the City such that had a defence to the claim. All she sought to demonstrate was her eligibility to apply for one. No other defence has been demonstrated.
Even if she were able to prove at trial that an application to defer rates was made and been refused, which appears to be the effect of her submissions (Mrs Armstrong's written submissions state that she and her husband had tried to get a deferment in May 2004), that decision would not be reviewable by the Magistrates' Court in a trial of the claim.
In my view the learned magistrate was correct in finding that there was no defence to the claim and refusing the application to set aside the default judgment on that basis. It was not open to the court to grant a deferment of rates, or to review the City's decision not to grant a deferment.
For completeness, I will deal with Mrs Armstrong's submission that, as her husband's widow, she was eligible for a deferment under s 45. There was no evidence that an application on this basis had been granted. Section 45 only has application where a deferment has been granted to a deceased spouse.
Conclusion
It has not been demonstrated by Mrs Armstrong that the magistrate erred in dismissing her application to set aside the default judgment obtained by Cockburn. Accordingly, her appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
ASSOCIATE TO JUDGE PRIOR23 AUGUST 2018
0
4
3