Cheng v Tanbil Holdings Pty Ltd - [2010] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CHENG -v- TANBIL HOLDINGS PTY LTD [2010] WADC 58

CORAM: EATON DCJ

HEARD: 31 MARCH 2010

DELIVERED : Delivered Extemporaneously on 31 MARCH 2010 typed from tape and edited by Trial Judge

FILE NO/S: APP 102 of 2009

BETWEEN: YONG HUA CHENG
Appellant (Defendant)
AND
TANBIL HOLDINGS PTY LTD
Respondent (Claimant)

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE RANDAZZO
File No  :PER 8572 of 2009

Catchwords:

Practice and procedure - Appeal from an interlocutory decision of a magistrate - Unrepresented appellant

Legislation:

Nil

Result:

Appeal dismissed
Procedural orders made

Representation:

Counsel:

Appellant (Defendant) : In person
Respondent (Claimant) : Mr S J Butcher

Solicitors:

Appellant (Defendant) : Not applicable
Respondent (Claimant) : Dwyer Durack

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

Morton Seed & Grain Pty Ltd v Corser & Corser [2006] WADC 90; (2006) 43 SR(WA) 182

EATON DCJ: The matter before me is presently in the Joondalup Magistrates Court, being the matter of Tanbil Holdings Pty Ltd v Yong Hua Cheng. It is case number 8572 of 2009.
Tanbil Holdings lodged a general procedure claim in the Magistrates Court at Perth on 3 June 2009. The company claimed that it traded as "Century 21 Lakeside Joondalup" and that the sum of $12,572.24, being unpaid commissions, advertising and printing costs was owed to it by the defendant, Mr Cheng.
In response, he filed an intention to defend, admitting to part of the amount claimed, which he tells me today is about $600. The response suggests that the amount accepted as being owing relates to advertising. Mr Cheng sought a change of venue to the Joondalup Magistrates Court. The claimant requested a pre‑trial conference, which was duly listed for 26 August last year.
On 7 August, prior to the conference taking place, Magistrate Cockram ordered, by consent, that the whole of the proceedings be conducted at the Joondalup Magistrates Court and that the pre‑trial conference listed for 26 August be vacated.
The matter, in due course, was listed for a pre‑trial conference at the Joondalup Magistrates Court on 22 September 2009 at 9.30 am. At that conference, orders were made that the claimant lodge with the court and serve on the defendant, a sealed copy of a statement of claim and a list of documents that might be tendered at trial within 14 days. The defendant was to lodge with the court, and serve a sealed copy of, a statement of defence and a list of documents that might be tendered in the evidence at trial, within 14 days. The listing conference was adjourned to 28 November.
Prior to that, on 16 October 2009, the defendant, Mr Cheng, had filed an affidavit deposing that the claimant had not provided the statement by the due date, complaining that it was a "nonsense claim" and that it was wasting too much of his time. He also filed an application seeking that the case be dismissed in the absence of the filing and service of a statement of claim.
The matter came before Magistrate Randazzo on 3 December 2009. The claimant was represented on that occasion by a lawyer, Mr Butcher, who appears for the claimant today. Mr Cheng appeared before Magistrate Randazzo, in person, as he does today before me.
The Magistrate gave what appear to be extempore reasons and made orders as follows:
1.          The time within which the claimant is to lodge and serve on the defendant the sealed copy of the statement of general procedure claim and a list of documents that might be tendered at trial be extended to 4.00 pm on 3 December 2009.
2.          The defendant's application dated 16 October 2009 be dismissed.
3.          The claimant pay the defendant's costs of the appearance on 3 December in any event.
4.          The parties lodge a listing conference memorandum with the court by 14 January 2010.
The claimant had belatedly lodged its statement of general procedure claim, either on 2 or 3 December 2009 and, as I understand it, it was served upon Mr Cheng on 3 December 2009. The document bears the seal of the Joondalup Courthouse affixed on 3 December 2009.
Yong Hua Cheng has filed a notice of appeal in this court from the order made by Magistrate Randazzo on 3 December 2009 dismissing his application of 16 October of that year.
Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 provides that:
"A party to a case that is not a minor case may appeal to the District Court against:
(a)any order made by the Magistrates Court in the course of proceedings in the case, or
(b)the judgment of the Magistrates Court in the case."
The magistrate, on 3 December 2009, did not give judgment in the case. He made an order in the course of proceedings in the case. The order allowed, effectively, more time to the claimant to belatedly lodge its claim, ordered that the costs of 3 December incurred by Mr Cheng be paid by the claimant, and dismissed Mr Cheng's application to effectively strike out the claimant's claim. As such, the magistrate made interlocutory orders, facilitating the progress of the matter, ultimately, to a hearing, with an order that the parties lodge a listing conference memorandum by 14 January 2010. In dismissing Mr Cheng's application of 16 October, the magistrate took into account the affidavit of Steven John Butcher, solicitor for the claimant, sworn on 2 December 2009. Effectively, the magistrate exercised his discretion to allow the matter to proceed and, as I say, directed that the parties file a listing conference memorandum by 14 January.
It follows that Magistrate Randazzo, in making the orders that he did on 3 December 2009 did not bring down a final judgment in the case, but rather, made an interlocutory order to facilitate progress of the matter to a hearing and hopefully, in due course, to a resolution.
Rule 50 of the District Court Rules 2005, provides that an appeal to the court must be by way of a reconsideration of the evidence that was before the primary court unless the parties otherwise agree. There was, it seems, apart from the affidavit of Mr Butcher to which I've referred, no evidence before the magistrate. That affidavit did not deal with the issues raised as between the claimant and the defendant, the subject of the action in the Joondalup Magistrates Court, but rather, with procedural issues.
Magistrate Randazzo was dealing with an entirely procedural application. He exercised his discretion not to accede to it, and allowed an extension of time to the claimant within which to file the statement of claim.
In Morton Seed & Grain Pty Ltd v Corser & Corser [2006] WADC 90; (2006) 43 SR(WA) 182, I had cause to deal with an appeal from an interlocutory decision in the Magistrates Court. I surveyed the relevant authorities and came to the conclusion that those authorities supported the proposition that appellate courts must exercise particular caution when reviewing decisions pertaining to practice and procedure, noting that there was a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. The need for caution, I said, flows from the concern that cases should not be delayed interminably and costs increased indefinitely as a result of continued appeals from interlocutory decisions.
I should have regard to whether an injustice might be done to either one or both of these parties in that context. I take the view that the appeal against what was clearly an interlocutory decision by Mr Cheng is misconceived. He seems to be under the misapprehension that, to all intents and purposes, the claim against him by the claimant was disposed of in favour of the claimant by the magistrate. Certainly, that was not the case. The matter is yet to be determined by way of a hearing at which evidence will be called in the Magistrates Court. The matter is in all respects still yet to be tried.
The situation that Mr Cheng finds himself in is, in part, brought about by him dealing with these matters without the aid of legal representation and advice, and in part, I suspect, by his difficulties with English, English not being his first language. He wishes to represent himself in circumstances where he would be far better served by being represented by a lawyer and having the benefit of legal advice.
The matter, being an appeal from an interlocutory order by the magistrate, must, in my view, be dealt with by a dismissal of the appeal. The magistrate in the brief reasons that he gave on 3 December 2009 said that it appeared to him, on the face of the general procedure claim that had been lodged by the claimant, that there was an issue to be determined at a hearing. It was not a fanciful, vexatious or implausible claim. It was a claim that had, in his view, some substance and, as I say, it needed to be determined in the ordinary course of determining general procedure claims.
It is a claim relating to a period of time when, as I understand it, Mr Cheng was an employee or representative of the claimant and was involved in the sale of real estate on behalf of the claimant. It relates to commissions said to be payable to the claimant as a result of transactions apparently brought about by Mr Cheng in his capacity as a sales representative. Those matters, as I say, can ultimately be dealt with at a hearing.
The appeal is dismissed for the reasons which I have outlined this morning. I do propose to order that the parties lodge a listing conference memorandum with the Joondalup Magistrates Court by 15 April 2010. That order was made but, effectively, was put on hold by the filing of the appeal which, as I have mentioned, in my view, is misconceived. It is now incumbent upon both the claimant and the defendant, Mr Cheng, to file a listing conference memorandum with the court by 15 April 2010. Mr Cheng, as I said earlier, would be well advised in the interim to seek legal advice and to be represented in the matter thereafter.