Cristovao v Tan and Tan Lawyers Pty Ltd
[2017] WASCA 54
•28 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CRISTOVAO -v- TAN AND TAN LAWYERS PTY LTD [2017] WASCA 54
CORAM: NEWNES JA
MURPHY JA
HEARD: 9 MARCH 2017
DELIVERED : 28 MARCH 2017
FILE NO/S: CACV 90 of 2016
BETWEEN: ROGERIO MARTINS CRISTOVAO
Appellant
AND
TAN AND TAN LAWYERS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :PARRY DCJ
File No :APP 33 of 2016
Catchwords:
Practice and procedure - Whether grounds of appeal have reasonable prospect of succeeding - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Whether O 9A of Rules of Supreme Court 1971 (WA) applies to proceedings in Magistrates Court
Legislation:
Rules of Supreme Court 1971 (WA), O 9A
Magistrates Court (Civil Proceedings) Rules 2004 (WA), r 3, r 5
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr S F Popperwell
Solicitors:
Appellant: In person
Respondent: Denham Popperwell Lawyers
Case(s) referred to in judgment(s):
Nil
REASONS OF THE COURT: This appeal is from a decision of Parry DCJ in the District Court who dismissed an appeal by the appellant from a decision of Magistrate Temby in the Magistrates Court. In the Magistrates Court, Magistrate Temby had dismissed an appeal by the appellant against an assessment of costs made by a registrar of the Magistrates Court.
The appeal comes before the court on a registrar's notice to attend for the appellant to show cause why the appeal should not be dismissed, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
On 9 March 2017, we dismissed the appeal and said we would provide reasons for our decision. These are the reasons.
Background
The material facts are not in issue on the appeal and the following account is taken from the reasons for decision of the primary judge.
On 17 May 2010, the appellant commenced proceedings in the Magistrates Court against his former lawyers, the respondent, claiming the sum of $48,051.70, inclusive of costs, by way of damages for professional negligence. The appellant alleged that the respondent had failed properly to represent him in District Court proceedings which he had brought against a preceding firm of solicitors, Butcher Paull & Calder, for alleged professional negligence.
Subsequently, the amount of the claim by the appellant against the respondent was increased to $75,000, plus costs. The respondent denied that it had been negligent and, in the alternative, denied liability on the ground of advocate's immunity.
On 2 July 2014, the appellant's claim was dismissed by Magistrate Boon. The appellant was ordered to pay the respondent's costs of the action.
The respondent's bill of costs was assessed by Registrar Miles in the Magistrates Court on 14 January 2016. The appellant attended the assessment hearing and submitted that the registrar should not assess the respondent's costs of the proceeding because of what the appellant alleged was the respondent's failure to comply with O 9A of the Rules of the Supreme Court 1971 (WA) (RSC).
Order 9A of the RSC is as follows:
1.Term used: interested non party
In this Order -
interested non party, in relation to a party to a case, means a person, other than a practitioner for the party, who -
(a)provides funding or other financial assistance to the party for the purposes of conducting the case; and
(b)exercises direct or indirect control or influence over the way in which the party conducts the case.
2.Parties to advise identity of interested non parties
(1)A party to a case must notify the Principal Registrar and each other party to the case of the identity of any person who is an interested non party in relation to the party to the case.
(2)The notice is to be given in writing as soon as is reasonably practicable after the person becomes an interested non party in relation to the party to the case.
3.Duties of interested non party
The duties to the Court of an interested non party in relation to a party to a case are the following -
(a)not to engage in conduct which is misleading or deceptive, or to aid, abet or induce such conduct, in connection with the conduct of the case;
(b)to cooperate with the parties and the Court in connection with the conduct of the case;
(c)to use reasonable endeavours to ensure that the goal in Order 1 rule 4A and the objects in Order 1 rule 4B are attained.
The appellant alleged, in effect, that the respondent had failed to disclose the identity of an 'interested third party', namely its insurer, as required by O 9A.
The registrar found that O 9A did not apply to proceedings in the Magistrates Court, so that no obligation of disclosure arose under it. The appellant then absented himself from any further participation in the assessment process. The registrar proceeded with the assessment and ultimately allowed the bill of costs in the sum of $32,999.85.
By notice dated 23 January 2016, the appellant appealed to a magistrate from the registrar's assessment of costs.
On 13 April 2016, Magistrate Temby dismissed the appeal with costs. His Honour rejected the appellant's submission that the registrar should have declined to assess costs because of the respondent's alleged non‑compliance with O 9A, finding that O 9A did not apply in the Magistrates Court. His Honour refused to entertain a contention by the appellant that the costs order made by Magistrate Boon was void, there having been no appeal from her Honour's decision. His Honour also found no evidence that the appellant had contested the actual amounts sought in the bill of costs.
The appellant appealed from that decision to the District Court, pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
On 12 August 2016, the appeal was dismissed by the primary judge.
The reasons for decision of the primary judge
The primary judge found that the appellant's reliance on O 9A was misconceived. Proceedings in the Magistrates Court were governed by rules made under the Magistrates Court Act 2004 (WA) and the Magistrates Court (Civil Proceedings) Act 2004 (WA). Those rules did not incorporate O 9A, and O 9A had no application in the Magistrates Court. His Honour observed that the position was different in the District Court because r 6(1) of the District Court Rules 2005 (WA) provides that the RSC apply to and in respect of any case in the District Court.
His Honour further found that the appeal in the Magistrates Court was substantially a collateral attack by the appellant on the decision of Magistrate Boon, from which the appellant had not appealed, and that that collateral attack had been properly rejected by the magistrate.
The primary judge also rejected a contention that the appellant had been denied procedural fairness on the hearing of the appeal to the magistrate because the magistrate had refused his application for an adjournment to obtain legal advice on whether O 9A applied in the Magistrates Court. His Honour observed that the question of the application of O 9A had arisen on the assessment of costs and the appellant had had ample time before the hearing of the appeal to the magistrate to obtain any legal advice he wanted. In any event, the point was misconceived and an adjournment could not have assisted the appellant.
The grounds of appeal
The appellant relies upon the following grounds of appeal:
1.The Primary Judge (Parry DCJ) erred in both mixed law and facts in his judgment … regarding the applicability of Rules of Supreme Court, 1971 O 9A (O 9A), (the Rules) in terms of the following:
1.1The Mixed Facts and Law of the legislative intent of O 9A is to prevent litigants being involved in champertously‑connivance activities, with one another before all courts in Western Australia (the Legislative Intent).
1.2The Mixed Facts and Law of the Legislative Intent is evident in s 34 of the Supreme Court Act, 1935 (the Act) which sets the scene for the subsequent enactments of the Magistrates Court Act 2004 (the MCA) and the Magistrates Court (Civil Proceedings) Act 2004 (the MCCPA) thereby rendering O 9A to be enforceable in all courts in Western Australia (the SCA Evidence of the Legislative Intent).
1.3The Mixed Facts and Law of the subject matter of this appeal impinging on the Legislative Intent as the former affects cost disputes in the Magistrates Courts of Temby and Boon; the provisions of ss 37 and 58(i) of SCA governs them (the Subject Matter of this Appeal).
1.4The Mixed Facts and Law of the specific applicability of s 6 of the District Court Rules 2005 (DCR) does not detract from O 9A as the MCCPA and the MCA are additional and not in substitution to it (O9A) as per ss 39(2) and 40(3) of the MCA and ss 47 and 48(1) of the MCCPA as there are contradictory provisions to it (O9A) (DCR does not detract from O 9A).
2.The Primary Judge acted without authority in delivering the Primary Judgment when the following jurisdictional facts are missing from the Primary Judgment:
2.1The Legislative Intent;
2.2The SCA Evidence of the Legislative Intent;
2.3The Subject Matter of this Appeal; and
2.4The DCR does not detract from O 9A.
The disposition of the matter
It is unnecessary to canvass the grounds of appeal in any detail. The appellant's substantive contention that O 9A applied to the proceedings in the Magistrates Court is entirely misconceived. It is clear that O 9A has no application to proceedings in the Magistrate Court.
Order 9A was made pursuant to s 167 of the Supreme Court Act, which provides, relevantly, that the judges of the Supreme Court may make rules for regulating and prescribing the procedure and practice to be followed in the Supreme Court in all causes and matters in respect of which that court has jurisdiction. Proceedings in the Magistrates Court are, as the primary judge, pointed out, governed by rules of court made under the Magistrates Court Act and the Magistrates Court (Civil Proceedings) Act - namely, the Magistrates Court (General) Rules 2005 (WA) and the Magistrates Court (Civil Proceedings) Rules 2005 (WA): see r 3, r 5, Magistrates Court (Civil Proceedings) Rules.
As the primary judge noted, O 9A applies to proceedings in the District Court by virtue of r 6(1) of the District Court Rules, which expressly provides that the RSC apply to proceedings in the District Court. There is no comparable provision in the Magistrates Court (General) Rules or the Magistrates Court (Civil Proceedings) Rules, or the Acts under which those rules were made.
The appellant's contention that s 34 of the Supreme Court Act 1935 (WA) extends the reach of O 9A to the Magistrates Court is without merit. Section 34 provides:
The several rules of law enacted and declared by this Act shall be in force and take effect in all courts whatsoever in Western Australia so far as the matters to which such rules relate shall be respectively cognizable by such courts.
Order 9A is not a 'rule of law enacted and declared by [the Supreme Court Act]', but a provision of rules of court made pursuant to s 167 of the Supreme Court Act for the purpose of prescribing the practice and procedure to be followed in proceedings in the Supreme Court.
Nor does s 37(1) or s 58(1) have any relevance, the former dealing with the costs of proceedings in the Supreme Court and the latter with the jurisdiction of the Court of Appeal. Likewise, s 47 and s 48(1) of the Magistrates Court (Civil Proceedings) Act are irrelevant. Section 47 provides that rules of court for the purposes of that Act are to be made by the Court in accordance with s 39 of the Magistrates Court Act, and s 48(1) provides that the rules of court may regulate the practice and procedure to be followed in the Magistrate Court and its registries. Section 39 and s 40 of the Magistrates Court Act also deal with the rule‑making power of the Magistrates Court. The rule-making powers contained in those provisions are inconsistent with, rather than supportive of, the appellant's contention that O 9A applies in the Magistrates Court.
In his submissions in this court, the appellant also relied upon the Supreme Court (General Civil Procedure Rules) 2005 (Vic) and the Indian Ocean Territories Reform Act 1935 (Cth). It was not clear from his submissions how the appellant contended that either assisted but what is beyond doubt is that neither does.
Conclusion
As none of the grounds of appeal had any reasonable prospect of succeeding, we ordered that the application for leave to appeal and the appeal be dismissed.
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