Cristovao v Forensic Documents Examiners Pty Ltd
[2015] WASCA 85
•1 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CRISTOVAO -v- FORENSIC DOCUMENTS EXAMINERS PTY LTD [2015] WASCA 85
CORAM: NEWNES JA
MURPHY JA
HEARD: 2 FEBRUARY 2015
DELIVERED : 1 MAY 2015
FILE NO/S: CACV 104 of 2014
BETWEEN: ROGERIO MARTINS CRISTOVAO
Appellant
AND
FORENSIC DOCUMENTS EXAMINERS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DAVIS DCJ
Citation :CRISTOVAO -v- FORENSIC DOCUMENTS EXAMINERS PTY LTD [2014] WADC 100
File No :APP 84 of 2013
Catchwords:
Appeal from decision of District Court - District Court dismissed an appeal against a magistrate's decision concerning costs orders in Magistrates Court - Application to set aside registrar's direction to attend to show cause why appeal should not be dismissed - Whether appeal should be dismissed on basis that none of the grounds of appeal has reasonable prospect of succeeding - Appeal commenced out of time
Legislation:
District Court Rules 2005 (WA), r 57(2)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 3(1), s 13, s 25, s 26, s 30, s 31, s 42, s 43, s 44
Rules of the Supreme Court 1971 (WA), O 72 r 4
Supreme Court (Court of Appeal) Rules 2005 (WA), r 27, r 29, r 32, r 43(2)(g)
Result:
Appellant's application to set aside registrar's direction dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
Cristovao v Forensic Documents Examiners Pty Ltd [2014] WADC 100
REASONS OF THE COURT:
Introduction
This matter came before the court on 2 February 2015 by way of an amended registrar's notice to attend dated 16 January 2015, to show cause why the appeal should not be dismissed pursuant to r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) on the basis that none of the grounds of appeal has a reasonable prospect of succeeding and the appellant's case does not comply with r 32. The matter was also listed to consider an application by the appellant dated 12 January 2015, seeking to set aside an interlocutory decision of the registrar of this court.
The appeal arises out of a decision of Davis DCJ on 8 August 2014 in relation to an appeal brought by the appellant against a magistrate's decision concerning costs in the Magistrates Court.
(All references below to paragraph numbers are references to paragraph numbers in Davis DCJ's reasons: Cristovao v Forensic Documents Examiners Pty Ltd [2014] WADC 100.)
Background
Magistrates Court proceedings
On 8 February 2010, the appellant filed a general procedure claim against the respondent in the Magistrates Court.
The respondent did not file an appearance and on 1 June 2010 the appellant applied for, and was granted, default judgment. The application was supported by an affidavit of service of the general procedure claim form sworn by the appellant's then solicitor. The solicitor deposed that the form was served by post, addressed to the respondent's registered office in Melbourne [5].
On 18 January 2011, the respondent filed an application to set aside the default judgment. The matter was heard on 14 February 2011, and the default judgment was set aside and the respondent was given leave to defend the claim [6] ‑ [7].
The trial of the action was heard on 27 and 28 June 2012. Magistrate Cockram handed down his decision on 11 September 2012, dismissing the appellant's claim against the respondent.
The respondent applied for costs orders subsequent to the magistrate's decision on 11 September 2012. The appellant contested the claim for costs. As noted in more detail later in these reasons, orders for costs are relevantly governed by s 25 and s 31 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Civil Proceedings Act). The magistrate accepted the respondent's claim for costs and made orders for both 'allowable costs' and 'other costs'. Section 31(1) of the Civil Proceedings Act defines 'allowable costs' as costs in relation to court fees and services paid by the successful party and the costs of enforcing a judgment. 'Other costs' are costs that are not allowable costs: s 31(1) read with s 31(2).
On 28 September 2012, Magistrate Cockram found that there were exceptional circumstances justifying an order for the appellant to pay the respondent's costs. He provided written reasons, and made orders to the effect that [11]:
1.Claimant [appellant] to pay the defendant's [respondent's] allowable costs.
2.Claimant [appellant] to pay the defendant's [respondent's] other costs incurred after 10 June 2011 including the reasonable airfare and accommodation costs of [the respondent's directors] to attend court on 27 and 28 June 2012 to give evidence and any reserved costs save for the costs of the defendant's [respondent's] unsuccessful application for security of costs lodged 7 September 2011.
3.All costs to be assessed if not agreed.
In November 2012, the respondent filed a bill of costs for assessment. The appellant filed an objection to the bill of costs, the primary reasons being that the case was a minor case claim [13].
On 31 January 2013, a registrar of the court (Registrar Miles) assessed the bill of costs [14].
On 16 February 2013, the appellant appealed from the registrar's assessment of costs. The grounds of appeal were to the following effect [16]:
1.The Miles's Decision is incompetent and does not accord with the requirements of Article 2(3)(b) of the ICPPR [International Covenant of Civil and Political rights] and therefore it violates the Human Rights of the Claimant.
2.The Miles's Decision is incompetent and thereby rendered null and void by reason of the Miles contravention in terms of the following:
2.1Registrar Miles is in jurisdictional error when:
2.1.1he misinterpreted Cockram's Order No 2;
2.1.1[sic]he included the 'Outlawed Defendant's Solicitors Costs' in the Defendant's Other Costs;
2.1.2he violated the Human Rights of the Claimant in accordance with Article 2(3)(b) of the ICPPR.
The appeal from the registrar's assessment of costs was heard by Magistrate Cockram. There was an initial hearing on 21 August 2013, and the matter was adjourned to 25 September 2013 [17].
On 19 and 25 September 2013, the appellant filed submissions in which he referred to what he said was the respondent's false testimony, and argued that the court 'must take notice of the falsity of the facts as contained in the 'ALA Affidavit dated 24.12.2011, filed in the Magistrates Court at Perth on 14.01.2011 that was falsely used to set aside the Default Judgment of the Claimant' [18].
Davis DCJ said, with respect to the hearing before the magistrate on 25 September 2013 and the orders made:
At the hearing before Magistrate Cockram on 25 September 2013 the magistrate advised [the appellant] he had received his written submissions, and that he knew that [the appellant] disagreed with the fact of the costs orders which had been made. Magistrate Cockram told [the appellant] more than once that [the appellant] had brought the parties to court that day because he had lodged an appeal against the registrar's taxation or assessment of the costs. That involved the magistrate going through each item of the bill to see in fact what the costs should be, and that is what the parties were there to do. The magistrate reminded [the appellant] that if he disagreed with the fact of the costs orders made on 28 September 2012, his remedy was to appeal against those orders.
Magistrate Cockram reviewed the taxation of costs and made some reductions to the final costs allowable to [the respondent] [19] ‑ [20].
It is convenient to observe at this point that, as noted by Davis DCJ at [8] and [12], the appellant did not challenge any of the respective magistrates' decisions on 14 February 2011 (setting aside default judgment), 11 September 2012 (dismissing the appellant's claim) and 28 September 2012 (costs orders). The appeal heard by Magistrate Cockram on 21 August 2013 and 25 September 2013 related solely to the registrar's assessment of costs on taxation.
District Court proceedings
The appeal notice to the District Court stated as follows:
Decision Details
1.Magistrate Cockram Costs Orders dated 28.9.2012 in PER/GCLM/1691 of 2010 is a Contradiction in Terms:
1.1In one breath, he pronounced in Order 1 the Minor Cases Allowable Costs;
1.2Whereas in the other breath he contradicted himself by pronouncing Other Costs which contains the proscribed Legal Costs applicable only to General Procedure Cases. The relevant legislation, namely the Magistrates Court (Civil Proceedings) Act 2004 (the WA Act) does not allow for both kinds of costs in a Minor Case (Void Contradictory Costs Order).
1.3Registrar Miles assessed bill of Costs dated 28.11.2012 at $26,149.32, which is based on the Void Contradictory Costs (the Void Miles Assessed Costs).
2.The Appellant appealed the Void Miles Assessed Costs in PER/GCLM/1691/2010 to Magistrate Cockram, a judge of his own cause, who at a direction hearing dated 21.08.2013, issued time of the essence orders for [the respondent] to provide the specificities of the Itemised Impugned Bill of Costs dated 28.11.2012, but due to the Respondent's non-compliance by the latest date 5.9.2013, his Honour avoided the Appellant's Contempt Applications, and Submissions for Non-Compliance and instead assessed the former [respondent] Bill of Costs dated 28.11.2012 (the Avoidance of a Judge of his Own Cause).
3.As a result of the Avoidance of a Judge of his own Cause, His Honour substituted a $21,134.85 assessed bill of costs in place of the Void Miles Assessed Costs of $26,149.32 (Cockram Assessed Bill).
4.Cockram Assessed Bill is based on the fact that Geoff Dutton as solicitor for the Appellant in PER/GCLM/1691 of 2010 having filed Form 3 (General Procedure) instead of Form 4 (Minor Case Procedure) for a Minor Claim of $4,500.00 (Reason for Cockram Assessed Bill).
5.Reason for Cockram Assessed Bill did not take into account relevant information but took into account irrelevant information about the [respondent's] perjurious Affidavit 'ALA' dated 24.12.2010 [(sworn by the respondent's director, AL)] and filed in the Magistrates Court in Perth on 14.1.2011 to set aside the Default Judgment of PER/GCLM/1691/2010 dated 28.8.2010 obtained by the Plaintiff against [the respondent] (the Jurisdictional Error of Cockram).
APPEAL DETAILS
1)The Reason for Cockram Assessed Bill of Costs dated 25.09.2013 does not take into account the principle of law that FORM NOT TO BE ALLOWED TO TRIUMPH OVER THE SUBSTANCE OF THE LAW (The Substance)
2)The Substance is that a Minor Case Claim is always a Minor Case Claim when the claim is below the jurisdictional limit of $10k (the Law).
3)By Reason of the Law, Dutton Legal should not be penalized nor his insurers but for reason of expediency he has to be joined as the third party to this appeal (the Joinder).
4)The Jurisdictional Error of Cockram caused the Cockram Assessed Bill of Costs to be null and void as that Order for the Plaintiff to pay [the respondent] the sum of $21,134.85 does not exist (the Null Order).
5)The Non-Compliance as the element of Cockram Assessment Bill of Costs also vitiate the Null Order the second time (the Double Null Order).
…
Grounds of Appeal
1.Form or procedure should not be allowed to prevail over the substance of the law ie a Minor Case shall always be Minor Case no matter what happens unless the parties agreed to change it into a General Procedure Case.
2.If the Plaintiff is finally made liable for the Costs Orders of Magistrate Cockram dated 25.09.2013, Dutton Legal shall be ultimately liable for it as the Appellant is never responsible for this act of Form prevailing over Substance.
3.Magistrate Cockram denied the Appellant his natural justice by refusing to entertain his valid arguments re the [respondent's] Non‑Compliance, and [the respondent's] Affidavit 'ALA' Perjurious dated 24.12.2010, or in terms of the Null Order and the Double Null Costs Order as explained above.
4.An Appeal is brought on the ground of denial of natural justice under s. 32(3)(b) of the Magistrates Court (Civil Proceedings) Act, 2004 (WA Act).
5.Even if the Jurisdictional Error of Magistrate Cockram is not accepted, it is still a non-existent decision and is invalid but not unlawful. (original emphasis)
The appellant also tried to file a subsequent notice of appeal naming his former solicitor as a party to the appeal and including further appeal grounds. An affidavit in support was sworn 17 October 2013. On 21 October 2013, a registrar of the court refused to accept the amended appeal notice. The appellant took issue with this decision by filing an affidavit sworn 14 November 2013 and by writing to the principal registrar by letter on 22 November 2013 [23] ‑ [24].
On 19 November 2013, the respondent filed an application dated 7 November 2013 to strike out the appeal. Davis DCJ described the grounds for the strike out as follows:
One of the grounds for the strike out was that [the respondent] had not been served with the appeal notice (a ground later abandoned; [the respondent] had filed a notice of appointment of solicitors in the appeal). The other strike out ground was that the appeal was incompetent and did not comply with the provisions of District Court Rules 2005 (DCR) O 51. In submissions filed in support of the application it was submitted that the appeal notice did not contain any cogent or acceptable reasons or particulars as to why the decision being appealed was allegedly wrong [25].
The matter came before Davis DCJ on 10 February 2014. At this hearing Davis DCJ sought to confirm with the appellant whether he was appealing from Magistrate Cockram's assessment of costs 'because of the amount of costs he allowed', or whether the appeal was from the magistrate's dismissal of the appellant's 'argument that no order for costs should have been made against him at all' [26]. Her Honour set out the excerpts of the exchange in that regard at [26] ‑ [28]. In her reasons at [28], her Honour recorded:
I then asked [the appellant] (ts 18) to confirm that he was arguing in this appeal that the costs orders that Magistrate Cockram made on 28 September 2012 were 'Void and contradictory' and 'Null and void' and he responded:
'May I explain? I believe is a misunderstanding here. I appeal now, this appeal is against the amounts, which has been decided by his Honour.'
And then:
'Your Honour, I already explain I'm not object his Honour first set the allowable costs. What it is my contentions it is that the solicitors are not entitled to legal costs because this thing is a minor case claim.'
Consequently, Davis DCJ gave notice to the parties of the court's own motion to strike out the appeal pursuant to s 43(4) and s 43(5) of the Civil Proceedings Act and r 57(2) of the District Court Rules 2005 (WA) [29]. Her Honour's reasons for doing so were as follows:
[I]t appeared to me that [the appellant] was in substance attempting to bring an appeal from Magistrate Cockram's cost orders made 28 September 2012, outside the time for appealing, which was 21 days. No extension of time for appealing could be granted. An amendment to s 40 of the MCCPA permitted an extension of time to be granted, but that amendment did not come into effect until January 2013, by which stage the 21 day period in [the appellant]'s case had long since expired. The amendment to s 40(3) which permitted the court to extend the time for appealing has no retrospective operation. I referred the parties to two decisions of this Court on that point: Michael v Hawkins [2013] WADC 110; Rhodium Australia Pty Ltd v Stateway Pty Ltd [2013] WADC 129.
The matter was adjourned to enable the appellant to instruct solicitors and to consider the court's motion. It was listed for 11 March 2014 [30], following which her Honour listed the matter for further hearing on 1 May 2014. Her Honour noted:
[The appellant] did not engage solicitors. He filed two further applications. The first was by chamber summons dated 19 February 2014 seeking orders for the purpose of consolidating his appeal with another District Court action he has commenced by writ in CIV 3217 of 2013 on the grounds that there was a 'common issue of the Fraud arising from [AL]'s Affidavit perjurious dated 24.12.2010' and the consolidation was capable of achieving costs savings for all parties. The second application was dated 7 March 2014, described as 'Reamended Summons in Chambers' and sought security for costs from [the respondent], purportedly pursuant to RSC O 67 r 5 and also that 'other appropriate parties' be joined to the appeal pursuant to RSC O 18. The parties he sought to join were [the respondent's] current solicitors and [the appellant's previous solicitor].
On 11 March 2014 I ordered that [the appellant]'s application, [the respondent's] strike out application and the court's own motion to strike out the appeal (notice of which was given to the parties on 10 February 2014) be listed for hearing before me on 1 May 2014.
[The appellant] filed a number of affidavits and written submissions in support of his appeal and in opposition to both [the respondent's] strikeout application and to address the issues that I raised when I gave the parties notice of the court's own motion to strike out his appeal [31] ‑ [33].
In relation to the hearing on 1 May 2014, her Honour noted that the appellant's submissions had shifted to involve allegations of fraud. Her Honour said:
From the submissions which [the appellant] filed dated 28 April 2014, a letter dated 30 April 2014 and the discussions I had during the course of the hearing with him on 1 May 2014, it became apparent that [the appellant]'s main argument in relation to his appeal was different from the arguments which he had confirmed with me on the hearing of 10 February 2014.
His argument was, as he put it in par 6 of the submissions filed 28 April 2014, that Magistrate Cockram's decision of 25 September 2013 'is rendered a nullity because it did not take into account the relevant consideration the Perjurious Affidavit of [AL] Affidavit dated 21.12.2010'.
As I understood from [the appellant]'s submissions, both written and oral, he was not relying on his 'Appeal Details' or Grounds of Appeal 1 and 2 (as are set out in [22] above) but was relying on the remaining Grounds of Appeal 3, 4 and 5. As he argued before me on 1 May 2004, and which I confirmed with him more than once, [the appellant] relied upon the fraud he said was in the affidavit sworn by AL at the time when [the respondent] applied to set aside the default judgment obtained by [the appellant] in the Magistrates Court [34] ‑ [36].
Her Honour noted that the 'AL' affidavit was not in the Magistrates Court file, but continued:
What is in the [respondent's] submissions is consistent with what [the appellant] has told me about the affidavit. AL deposed to both the reasons for the delay in seeking to have the judgment set aside and the merits (that is, whether [the respondent] had an arguable defence). AL deposed that [the respondent] first became aware of the default judgment when on 23 December 2010 it received a statutory demand issued by [the appellant] consequent upon the judgment, to which was attached a copy of a Notice of Interstate Registration from the Melbourne Magistrates Court, Victoria [40].
In relation to the appellant's argument as to fraud, her Honour observed:
[The appellant] maintained that AL committed a fraud, or perjury, in his affidavit because he lied about not receiving the general procedure claim form. As [the appellant] explained to me, there was a fraud because of the affidavit of service sworn by his then solicitor … which I have referred to in [5] above.
[The appellant] argued (although he did not express it in exactly this way) that this fraud has tainted the orders which have been made in the Magistrates Court proceedings, including the costs order made by Magistrate Cockram on 28 September 2012, the subsequent taxation of costs in favour of [the respondent] and the review of those costs by Magistrate Cockram on 25 September 2013.
In particular [the appellant] argued that Magistrate Cockram was aware of the issue of the fraud when he reviewed the taxation, pointing to the submissions he had filed in the Magistrates Court as I have set out in [18] (ts 70) and some exchanges in the transcript of the proceedings on 25 September 2013 [41] ‑ [43].
In dealing with the fraud allegation, Davis DCJ, after referring to the relevant authorities, said that where a party claims that an adverse judgment was obtained by the fraud of the other parties and wishes to set aside that judgment, such party must bring a new action so that the fraud complained of is put in issue and the matter can proceed to trial in the ordinary way [44] ‑ [45].
Her Honour found that appellant's allegation of fraud was not an issue in which the court should or could either hear or determine on appeal [46] ‑ [50], [52] ‑ [53]. Further, and for the same reasons, it was not an issue that Magistrate Cockram ought to have considered at the review of taxation on 25 September 2013 [51].
Her Honour said:
For these reasons, [the appellant]'s appeal cannot continue and must be struck out.
In the circumstances it is not necessary for me to comment on the merits of [the appellant]'s claim of fraud, nor is it strictly necessary for me to deal with his other applications or grounds of appeal. In the circumstances of this case, however, and for the sake of completeness, I consider it is important to do so [53] ‑ [54].
In relation to the other matters before the court, Davis DCJ:
a)made preliminary observations on the merits of the fraud allegations at [55]-[57];
b)dismissed the appellant's application for security for costs on the basis that an appellant cannot seek security for costs from a respondent [58];
c)dismissed the appellant's application to join additional parties because they were not parties to the proceedings below [59].
With respect to the respondent's application to strike out the appeal, her Honour noted that the appeal purported to appeal from Magistrate Cockram's decision of 25 September 2013, which was a discretionary decision assessing the respondent's costs. Such an appeal must identify some error of principle made by the magistrate in exercising his discretion, which may occur both in determining an item should be allowed and determining how much should be allowed. Davis DCJ held that there was no ground of appeal which alleged any such error, and upheld the respondent's application to strike out the appeal [60] ‑ [65].
With respect to the court's own motion to strike out the appeal, Davis DCJ said:
In relation to the court's own motion, in so far the appeal relates to the costs orders made by Magistrate Cockram on 28 September 2012, as set out in 'Appeal Details' and Grounds of Appeal 1 and 2 of [the appellant]'s Notice of Appeal (see also [26] ‑ [29] above) it must also be struck out.
It has recently been confirmed by the Court of Appeal that the amendment to s 40(3) of the MCCPA which gives the court power to extend the time for appealing has no retrospective operation: Michael v Hawkins [2014] WASCA 64.
[The appellant] could therefore not bring any appeal from Magistrate Cockram's costs orders made 28 September 2012 outside the 21‑day period which then applied (and which expired on 19 October 2012).
To the extent that his Notice of Appeal alleges an error made by Magistrate Cockram when he made his costs orders on 28 September 2012, [the appellant]'s appeal is out of time and the provisions of the MCCPA as it stood at the time do not allow this court to grant any extension of time for his appeal [66] ‑ [69].
The appeal to this court - background
On 29 August 2014, the appellant filed an appeal notice against the decision of Davis DCJ.
Pursuant to r 27 of the Court of Appeal Rules, a civil appeal is not 'commenced' until it has been both filed and served in compliance with r 29. Rule 29(4) requires the document to be served upon the respondent personally.
On 30 September 2014, the appellant filed a Service Certificate which stated that the appellant had served the appeal notice on the respondent's solicitors, Friedman Lurie Singh & D'Angelo.
On 3 October 2014, the Court of Appeal office sent a letter to the appellant informing him that service on the respondent's solicitors did not constitute personal service, as required by r 29(4) of the Court of Appeal Rules. It also indicated that the letters annexed to the appellant's affidavit sworn 30 September 2014 indicated that Friedman Lurie Singh & D'Angelo did not have instructions to act for the respondent in the appeal.
On 2 October 2014, an order was made requiring the appellant to file an affidavit of personal service by 16 October 2014.
On 13 October 2014, the appellant filed an affidavit which, relevantly, deposed that on 5 September 2014 he had faxed the appeal notice to the Respondent and copied to Friedman Lurie Singh & D'Angelo, and on 10 September 2014, the appellant personally served Friedman Lurie Singh & D'Angelo.
On 17 October 2014, the Court of Appeal wrote to the appellant informing him that serving the appeal notice on Friedman Lurie Singh & D'Angelo did not constitute personal service and that if this was not done by 24 October 2014 the matter would be listed for hearing to show cause why it should not be dismissed. An order was made extending the time to file an affidavit of personal service to 24 October 2014.
On 21 October 2014, the appellant filed an application for substituted service, pursuant to O 72 r 4 of the Rules of the Supreme Court 1971 (WA). In the application the appellant requested that substituted service be effected by posting the appeal notice to 'the last known address of the respondent … level 30, 525 Collins Street, Melbourne Vic 3000'.
On 11 November 2014, the appellant wrote a letter addressed to Registrar Bush essentially stating that service of the appeal notice on Friedman Lurie Singh & D'Angelo was sufficient.
On 16 November 2014, the appellant attempted to file another service certificate, which also stated that the appellant had served the appeal notice on Friedman Lurie Singh & D'Angelo. This was accompanied by an outline of submissions for the hearing on 21 November 2014 and a list of documents to be relied upon at the hearing.
On 21 November 2014, this matter came before the court to consider why the appeal should not be dismissed due to the appellant's failure to serve the appeal notice, and to consider the appellant's application for substituted service. At the hearing orders were made that the appellant serve the respondent company's registered address in Melbourne as disclosed by a current search of the Australian Securities and Investment Commission.
On 1 December 2014, the appellant swore an affidavit of service which stated, in effect, that he had complied with the court's orders dated 21 November 2014.
Accordingly, the appellant did not 'commence' the appeal until 1 December 2014, and requires an extension of time. Also, the appellant requires leave to bring the appeal pursuant to s 42(2) of the Civil Proceedings Act.
On 3 December 2014, the court made orders that the appellant file and serve an appellant's case by 4.00 pm on 17 December 2014.
On 16 December 2014, the appellant filed an appellant's case.
On 31 December 2014, the registrar issued a notice to attend on 2 February 2015 to show cause why the appeal should not be dismissed pursuant to r 43(2)(g) of the Court of Appeal Rules.
On 12 January 2015, the appellant filed an application in an appeal, which seeks to set aside Registrar Bush's order to show cause why the appeal should not be dismissed pursuant to r 43(2)(g) of the Court of Appeal Rules. The appellant swore an affidavit in support of the application on the same date.
On 16 January 2015, the registrar issued an amended notice to attend, to include in it the appellant's application dated 12 January 2015.
On 27 January 2015, the appellant sent to the court an outline of submissions in support of his application dated 12 January 2015. Although the submissions were not formally accepted for filing, they have been read by the court and taken into account. Also, on 27 January 2015, the appellant swore a supplementary affidavit.
Further submissions were provided on or about 2 February 2015.
As noted earlier, the matter came on for hearing on 2 February 2015. The appellant appeared on his own behalf. There was no appearance by the respondent (the respondent had not filed a notice of intention). The court has considered all the written material provided by the appellant to the court, as well as his oral submissions. The court also has had regard to the District Court file and the Magistrates Court file.
Following the hearing on 2 February 2015, the court reserved its decision.
Grounds of appeal
The appellant's grounds of appeal are as follows:
GROUND -1- DCJ Davis failed to accord the Appellant his natural justice by refusing to exercise her jurisdiction in accordance with the law with regard to the Specific Issue of her failure to invest a proper interpretation of the provisions of the [Civil Proceedings Act] in terms of:
1.1.S. 30 (2), (b), (4) (b) (c) of the Act in so far as they relate to the issue of whether the Respondent in PER/GCLM/1691/2010, in accordance with the Minor Case Jurisdictional Provisions limit is $10,000., is entitled to legal representation by Solicitors, namely Friedman Lurie Singh and D'Angelo without the prior consent of the Appellant (the UNLAWFUL REPRESENTATION PROVISIONS).
1.2.S.31(3) (a) with reference to “Other Costs” in so far as it affects the Order of Magistrate Cockram dated 25.9.2013 in Magistrates Court, PER/GCLM/1691/10, and whether it supersedes or invalidates the said UNLAWFUL REPRESENTATION PROVISIONS: sect. 30 (2), (b), (4) (b) (c) of the Act (the Cockram Decision);
all sections cited above are related to Cockram's Decision dated 25.09.2013 which is invalidated or ought to have been invalidated by the UNLAWFUL REPRESENTATION PROVISIONS which is not taken cognisant of by DCJ Davis in DC CIV 84 of 2013 (The Davis's Avoided Issue).
GROUND 2: Her Hon failed to recognise or denied the Appellant his natural justice in that the Cockram's Decision dated 25.09.2013 is a nullity in that he had included into within it the UNLAWFUL REPRESENTATION PROVISIONS contrary to his first decision on costs dated 28.9.2012 and Magistrate Cockram had therefore contradicted himself (Cockram's and DCJ Davis's Decisions is a Nullity).
GROUND 3: Her Hon failed to recognise the missing jurisdictional facts of the law, which should be present when she was reviewing the Cockram's Decision dated 25.09.2013 (and instead she should not herself be seeking other facts and treating them as such), in terms of the following:
3.1The elements of the Cockram's Other Costs dated 28.09.2012 as per s 31(3)(a) of the [Civil Proceedings Act] does not include the Proscribed Legal Costs Entitlements of the Respondent's Solicitors (the Solicitors Costs Entitlement's Exclusion).
3.2The Solicitors Costs Entitlement's Exclusion are separate from the Allowable Costs/Other Costs as per s. 25(1) and s.31(1)(a) of the [Civil Proceedings Act] (Exclusion of Allowable Costs/Other Costs from Solicitor's Legal Costs Entitlements).
3.3The Proscribed Legal Costs Entitlements are synonymous to the UNLAWFUL REPRESENTATION PROVISIONS which can only be validated by the mutual consent of both parties to the proceedings by their obtaining prior consent of the Court and cannot be validated as an after the event insight by any of the parties or the court (the Court's Consent).
3.4The factual circumstances of the Appeal Case is NOTICED by all parties that the Court's Consent never granted is the missing element which vitiates the validity of the Cockram Assessed Bill of Costs dated 25.9.2013 and the DCJ Davis's Decision dated 8.8.2014 (FLSD NON-ENTITLEMENT).
3.5Similarly, the Federal Court Costs Orders in TAD 56/2010 emanating from Perth Magistrates Court, Perth General Claim Legislative Minor (PER/GCLM) 1691 of 2010 must not contain solicitors' costs entitlements contrary to the UNLAWFUL REPRESENTATION PROVISIONS as they are without the Court's Consent (FLSD AND PAGE SEAGERS NON‑ENTITLEMENTS).
The appellant's arguments appeared to be as follows.
In relation to ground 1, it is said that Davis DCJ erred insofar as her Honour failed to consider:
a)Section 30(2)(b) and s 30(4)(b) and (c) of the Civil Proceedings Act, in that such provisions rendered the representation of the respondent by legal practitioners 'unlawful';
b)Whether the power of Magistrate Cockram to make orders as to the quantum of 'other costs' on 25 September 2013, pursuant to s 31(3)(a) of the Civil Proceedings Act, was in any way affected, ie 'invalidated', by virtue of the respondent being 'unlawfully' represented by legal practitioners.
In relation to ground 2, Davis DCJ allegedly erred insofar as her Honour failed to recognise that Magistrate Cockram's decision on 25 September 2013 was a 'nullity' because he had included 'within it' the provisions in relation to a party being represented by a legal practitioner in a minor case claim, contrary to Magistrate Cockram's earlier decision on costs on 28 September 2012.
In relation to ground 3, Davis DCJ is said to have erred in her consideration of Magistrate Cockram's decision dated 25 September 2013, insofar as her Honour failed to recognise that:
a)Magistrate Cockram's orders with respect to 'other costs' on 28 September 2012 did not extend to the respondent's legal costs; and are 'separate' from 'allowable costs' and 'other costs' in s 25(1) and s 31(1)(a) of the Civil Proceedings Act;
b)an order for the respondent's legal costs could only have been made if 'validated' by mutual consent of both parties, where the parties obtained 'prior consent of the court'; legal costs could not be 'validated' after the event;
c)the lack of consent by the court to the legal representation of the respondent 'vitiates the validity' of Magistrate Cockram's decision of 25 September 2013 and Davis DCJ's decision of 8 August 2014;
d)orders made by the Federal Court in a separate matter must not contain orders with respect to solicitor's costs, for the reasons stated above.
There does not appear to be any allegation to the effect that her Honour erred in finding that there was no appellable error in relation to the appellant's allegations as to fraud.
Magistrates Court (Civil Proceedings) Act 2004
The term 'minor case' is defined in s 3(1) of the Civil Proceedings Act to have the meaning given by s 26 of the Civil Proceedings Act.
A 'minor cases procedure' is defined by s 3(1) to mean 'the procedure prescribed by Part 4 and the rules of court made for the purposes of Part 4'.
Part 3 is headed 'General Procedure'. Section 13 provides:
13.Court’s duties in dealing with cases and making rules
(1)In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring -
(a)that cases are dealt with efficiently, economically and expeditiously; and
(b)so far as is practicable, that the parties are on an equal footing; and
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
Section 25, in pt 3, provides, relevantly:
25.Costs
(1)The Court may order a party to a case to pay the whole or a part of another party's costs in the case.
(2)A successful party is entitled to an order under subsection (1) that the whole of its costs in the case be paid by the unsuccessful party, unless the Court considers there is good reason not to make such an order or subsection (5) applies.
…
(5)In a case where -
(a)the value of the claim, or of the relief claimed, by the claimant is not more than the minor cases jurisdictional limit; and
(b)the claimant did not elect to have the claim dealt with under the minor cases procedure or, under section 28(3), the court ordered that the case be dealt with under the general procedure,
the Court may only make an order under subsection (1) in favour of a successful party if the order would be permitted by section 31 were the case being dealt with under the minor cases procedure.
…
(7)The amount of any costs to be paid is to be determined by the Court unless the parties concerned agree on the amount.
(8)The amount of any costs to be paid in respect of work done by a legal practitioner in conducting any proceedings in the case is to be determined under the applicable costs determination.
Part 4 is headed 'Minor cases procedure'. Section 26 in pt 4 provides:
26.Terms used
In this Part -
general procedure means the procedure prescribed by Part 3 and the rules of court other than rules of court made for the purposes of this Part;
minor case means -
(a)a claim within the jurisdiction of the Court where -
(i)the value of the claim or of the relief claimed is not more than the minor cases jurisdictional limit; and
(ii)the claimant has elected to have the claim dealt with under the minor cases procedure;
or
(b)a matter within the jurisdiction of the Court referred to in section 8 that is declared to be a minor case for the purposes of this Act by the written law that confers jurisdiction on the Court to deal with the matter; or
(c)any other claim within the jurisdiction of the Court (including a claim within the jurisdiction of the Court by virtue of a consent given under section 6(1)(f)) that the parties agree is to be treated as a minor case.
Section 31 in pt 4 provides, relevantly:
31.Costs
(1)In this section -
allowable costs means -
(a)the court fees and service fees paid by a successful party; and
(b)the costs of enforcing a judgment.
(2)A successful party to a minor case is entitled to an order under section 25(1) in relation to the party's allowable costs but not in relation to the party's other costs in the case.
(3)Despite subsection (2), the Court may make an order under section 25(1) as to the payment of the party's other costs by another party if it is satisfied that -
(a)because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or
(b)the unsuccessful party's claim or defence was wholly without merit.
In relation to legal representation, s 44 provides, relevantly:
44.Representation of parties
(1)A party to a case is personally entitled to appear before the Court in order to present and conduct the party's case and to call, examine, cross examine, and re‑examine witnesses.
(2)Subject to section 30(2), the entitlement under subsection (1) may be performed on the party's behalf -
(a)by a legal practitioner, regardless of whether the party is referred to in paragraph (b) or (c).
Section 30 deals with a minor case and provides, relevantly:
30.Representation of parties
(1)In this section -
agent means a legal practitioner or any other person.
(2)Despite section 44(2), a party to a minor case is not entitled to be represented before the Court but -
…
(b)any party may be represented by an agent with the leave of the Court given under this section.
(3)The Court may give a party leave to be represented by an agent who is not a legal practitioner -
(a)in proceedings, not being the trial of the case, if the proceedings are prescribed by the regulations; or
(b)in the trial of the case, if the Court considers that the party should be given leave so that the party is not unfairly disadvantaged.
(4)Except in the case of a consumer/trader claim, the Court may give a party leave to be represented by a legal practitioner -
(a)in proceedings prescribed under subsection (3)(a); or
(b)if all parties agree; or
(c)if the Court is satisfied that it is in the interests of justice for the party to be represented by a legal practitioner.
Disposition
The following observations may be made at the outset.
Although it may be assumed that the appellant's claim in the Magistrates Court came within the minor cases jurisdictional limit, the appellant's case was commenced with a 'general procedure claim' form, and proceeded as a general procedure claim. It was the appellant's former solicitor who commenced the proceedings as a general procedure claim.
As the appellant's claim was a general procedure claim, and was not dealt with under the minor cases procedure, the parties were entitled to legal representation pursuant to s 44(2) of the Civil Proceedings Act. The respondent's legal representation was not 'unlawful' in any sense.
Even if the respondent were not entitled to representation, s 30(9) provides that a contravention of s 30 does not invalidate any order made, or the judgment in the case.
On the question of costs, in a case where the value of the claim is not more than the minor cases jurisdictional limit, and the claimant did not elect to have the claim dealt with under the minor cases procedure, the court may only make an order for a party to pay costs in favour of a successful party if the order would be permitted by s 31 were the case being dealt with under the minor cases procedure: s 25(5) of the Civil Proceedings Act. Section 31 of the Civil Proceedings Act accordingly sets out the provisions governing costs orders in minor case claims, as well in general procedure claims that come under the minor claims jurisdictional limit (such as the appellant's case). The general rule under s 31 is that a successful party is only entitled to 'allowable costs' and is not entitled to 'other costs' in the case. As noted earlier, 'allowable costs' are defined in s 31(1) as court and service fees and the costs of enforcing judgment. However, s 31(3)(a) relevantly makes an exception to the general rule and permits the award of 'other costs' where, because of 'exceptional circumstances', an injustice would be done to the other party if that party's other costs were not ordered to be paid.
In this case, Magistrate Cockram found in his written reasons that 'exceptional circumstances' existed that justified a costs order for the respondent's 'other costs'. These circumstances, according to the magistrate, included:
(a)that it was unusual for witnesses to travel from Tasmania to Perth to give evidence at a general procedure claim for less than $10,000 and an injustice would be done were the successful party to bear that cost; and
(b)12 months before the hearing the respondent had offered to pay the only part of the claim which had any prospect of success ($4,500); the appellant rejected this offer; and the appellant's whole claim was in any event dismissed.
Having made those observations, it is appropriate to return to a consideration of the specific grounds of appeal. In essence, the grounds of appeal to this court raise three fundamental complaints. In essence, the appellant alleges that her Honour should have held that:
(a)the respondent's legal representation in the Magistrates Court was 'unlawful';
(b)'other costs' cannot be ordered in a minor case claim, at least unless 'validated' by the mutual consent of the parties; and
(c)the order as to 'other costs' against the appellant on 28 September 2012 did not, properly construed, include the respondent's legal costs.
As to the first of those complaints, for the reasons given above, the respondent's legal representation was not 'unlawful'. As to the second complaint, the appellant's claim in the Magistrates Court was not a 'minor case'. Also, for the reasons given earlier, Magistrate Cockram had the power to make an order for 'other costs' against the appellant without his consent in accordance with s 31(3). Moreover, those complaints, in substance, arise out of the making of the orders on 28 September 2012. Davis DCJ correctly concluded that the appellant had lost any right to appeal in respect of the orders of 28 September 2012 in any event. As to the third complaint, the 'other costs' referred to in Magistrate Cockram's orders of 28 September 2012 (see [9] above) plainly covered the respondent's legal costs. Insofar as her Honour implicitly accepted that to be the scope of the orders of 28 September 2012 in striking out the appeal on the basis of the respondent's application (see [60] ‑ [65]), her Honour was undoubtedly correct.
None of the grounds of appeal identify any arguable error with any prospect of success.
Conclusion
The appeal was commenced out of time. For the reasons discussed above, no ground, on the most favourable construction that may be given to it, has any reasonable prospect of success. In all the circumstances of this case, it is appropriate that the appeal be dismissed on the basis that the appellant has no reasonable prospect of success.
In relation to the appellant's application dated 12 January 2015, it should be observed that the registrar's direction was a discretionary decision of a case management kind. The appellant's affidavit of 12 January 2015 was replete with conclusory assertions of a scandalous nature. No arguable error has been identified and that application has no merit.
The orders should be:
1.The appellant's application dated 12 January 2015 be and is hereby struck out.
2.The appeal be and is hereby dismissed.
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