CHATWIN v Kleinhenz

[2011] WADC 112

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CHATWIN -v- KLEINHENZ [2011] WADC 112

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   19 JULY 2011

DELIVERED          :   20 JULY 2011

FILE NO/S:   APP 88 of 2010

BETWEEN:   FRANCES CHATWIN

Appellant

AND

STEFANIE KLEINHENZ
Respondent

Catchwords:

Practice and procedure - Directions on appeal from Magistrates Court - Minor case - Application to amend grounds - Application refused - Appeal struck out

Legislation:

Magistrates (Civil Proceedings) Act 2004
District Court Rules 2005

Result:

Oral application to amend grounds of appeal refused
Appeal struck out as incompetent

Representation:

Counsel:

Appellant:     Mr D O Elek-Roser

Respondent:     In Person

Solicitors:

Appellant:     Elek-Roser Legal

Respondent:     Not applicable

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

Nil

1. DEPUTY REGISTRAR HEWITT:  This matter came before me for a directions hearing of 19 July 2011.  At that time I pointed out to the counsel representing the appellant that the appeal was from a minor case in the Magistrates Court and accordingly, s 32 of the Magistrates (Civil Proceedings) Act 2004 applied which had the effect of significantly restricting the potential basis of appeal. 

2. In the present circumstances the only basis of appeal which would have been available to the appellant was that there was a denial of natural justice.  That was not one of the grounds formulated in the appeal and as a consequence, when I pointed out the deficiencies in the materials, counsel moved for an order that he be permitted to amend the grounds of appeal to include a complaint that the appellant was denied natural justice.

3. In considering whether or not to allow such an amendment, I had regard to the circumstances of the case itself.  The plaintiff had obtained a default judgment in the proceedings on 22 July 2010 and the defendant applied to set aside that judgment.  That application succeeded and the default judgment was set aside by order dated 25 August 2010.  Additionally the matter was adjourned to a listing conference and the defendant was ordered to file a statement of defence within seven days.  The appellant failed to attend the listing conference and as a consequence of that failure a further default judgment was entered against her.  The appellant then brought a fresh application seeking to set aside the default judgment which had been entered on 6 October 2010.  That matter was argued on 3 November 2010.  That application was dismissed and that is the decision which is the subject of the present appeal to this court.

4. The grounds of appeal as they were originally formulated in the matter were:

   1.His Honour erred in law and in fact to properly take into consideration that the respondent's pleadings disclose no cause of action against the appellant in that the respondent states in her statement of claim that her dealings were with the appellant's then‑husband.

   2.His Honour erred in law and in fact to take into account the appellant's defence was not tested and found without justification that the appellant's then‑husband's evidence to be doubtful as to his truthfulness or otherwise.

   3.His Honour erred in law and in fact that the misunderstanding between the solicitor and counsel in failing to attend the listing conference on 6 October 2010 did not prejudice the respondent.

5. As can been seen, none of those grounds identify any failure of natural justice.

6. The application proceeded on the basis of an affidavit filed in support by the Sydney lawyers representing the appellant.  In essence, the affidavit comprised an analysis of materials on the court file.  It did not depose to any facts but merely presented that lawyer's analysis of the materials and argued they disclosed a defence on the merits sufficient to set aside the default judgment and grant a judgment in favour of the appellant.

7. Notably, the appellant herself did not swear an affidavit to support her application.  Part of the basis of the present appeal relates to a number of comments made by the magistrate as to the position of the appellant's husband.  The contention being advanced by the appellant was that the loan was to her husband, not herself.  Her husband was bankrupt.  His Honour made some comments to the effect that evidence from the husband accepting full responsibility of the loan would have to be taken with a grain of salt.  That however does not constitute a breach of natural justice because there was no evidence from the husband in the form of any kind of affidavit such that his credibility was in question and the magistrate's view of his credibility, had he chosen to swear an affidavit, was irrelevant.

8. The application proceeded on an evaluation of the materials which had been placed before the magistrate by the applicant and as I have noted in the absence of any sworn testimony from the appellant herself as to the allegations which were levelled against her by the respondent.

9. Weighing these matters up it seems to me that the appellant was simply grasping at some basis upon which to revive an incompetent appeal. Nothing was put before me or pointed out to me, which in my view could possibly be argued as a breach of natural justice. As a consequence, I resolved to refuse the oral application to amend. In the light of that refusal, the appeal was incompetent and I therefore exercised the powers granted to me under r 57 of the District Court Rules 2005 by virtue of r 56(3)(f) and struck the appeal out.