Cristovao v Tan & Tan Lawyers Pty Ltd
[2016] WADC 127
•23 AUGUST 2016
CRISTOVAO -v- TAN & TAN LAWYERS PTY LTD [2016] WADC 127
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 127 | |
| 23/08/2016 | |||
| Case No: | APP:33/2016 | 12 AUGUST 2016 | |
| Coram: | PARRY DCJ | 12/08/16 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed with costs | ||
| PDF Version |
| Parties: | ROGERIO MARTINS CRISTOVAO TAN & TAN LAWYERS PTY LTD |
Catchwords: | Appeal from Magistrates Court Appeal to magistrate from costs assessment by registrar Appeal based on misconception that Rules of the Supreme Court 1971 O 9A applies in Magistrates Court Impermissible collateral attack on costs order pursuant to which costs assessment undertaken |
Legislation: | District Court Rules 2005 (WA) r 6(1), r 50(1) Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40, s 40(4) Magistrates Court Act 2004 (WA) Rules of the Supreme Court 1971 (WA) O 9A |
Case References: | Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR (WA) 254 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
TAN & TAN LAWYERS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE TEMBY
File No : PE GCLM 7383 of 2010
Catchwords:
Appeal from Magistrates Court - Appeal to magistrate from costs assessment by registrar - Appeal based on misconception that Rules of the Supreme Court 1971 O 9A applies in Magistrates Court - Impermissible collateral attack on costs order pursuant to which costs assessment undertaken
Legislation:
District Court Rules 2005 (WA) r 6(1), r 50(1)
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40, s 40(4)
Magistrates Court Act 2004 (WA)
Rules of the Supreme Court 1971 (WA) O 9A
Result:
Appeal dismissed with costs
Representation:
Counsel:
Appellant : In person
Respondent : Mr S F Popperwell
Solicitors:
Appellant : Not applicable
Respondent : Denman Popperwell
Case(s) referred to in judgment(s):
Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR (WA) 254
- PARRY DCJ:
(This judgment was delivered extemporaneously on 12 August 2016 and edited from transcript.)
1 Mr Rogerio Cristovao appeals pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) against the judgment of the Magistrates Court of Western Australia made by Magistrate Temby on 13 April 2016 in which his Honour dismissed an appeal by Mr Cristovao against an assessment of costs order made by Registrar Miles on 14 January 2016.
Background
2 Over six years ago, on 17 May 2010, Mr Cristovao commenced proceedings in the Magistrates Court seeking to recover $48,051.70 inclusive of costs as damages for professional negligence against Tan & Tan Lawyers Pty Ltd. Mr Cristovao alleged that Tan & Tan Lawyers had failed to properly represent him in District Court proceedings which he brought against another firm of solicitors, Butcher, Paull & Calder, for alleged professional negligence.
3 Subsequently, the amount of the claim by Mr Cristovao against Tan & Tan Lawyers was increased to $75,000 plus costs. Tan & Tan Lawyers defended the claim on the basis that it had not been negligent and alternatively, its neglect did not give rise to a cause of action, because it was entitled to advocate's immunity.
4 The proceeding was determined by her Honour Magistrate Boon on 2 July 2014. Her Honour dismissed the proceeding and ordered Mr Cristovao to pay Tan & Tan Lawyers' costs of the proceeding to be assessed if not agreed.
5 Mr Cristovao did not appeal against Magistrate Boon's judgment and in particular did not appeal against her Honour's decision to award costs of the proceeding against him.
6 Tan & Tan Lawyers' bill of costs was assessed by Registrar Miles on 14 January 2016. Mr Cristovao attended the assessment hearing and submitted that the registrar should not assess the respondent's costs of the proceeding because of its failure to comply with O 9A of the Rules of the Supreme Court1971 (WA) (RSC).
7 The registrar ruled against Mr Cristovao and Mr Cristovao then excused himself from participating further in the assessment process. Notwithstanding Mr Cristovao's absence from the remainder of the assessment, the registrar taxed off or eliminated approximately $7,000 to $8,000 of the bill of costs and ultimately allowed the sum of $32,999.85 in costs pursuant to the order for costs made by Magistrate Boon on 2 July 2014.
8 By notice dated 23 January 2016, Mr Cristovao appealed against the assessment of costs to a magistrate.
9 On 13 April 2016, that appeal was heard and dismissed with costs by Magistrate Temby. Again in his submissions to the magistrate, Mr Cristovao submitted that Tan & Tan Lawyers' non-compliance with O 9A of the RSC meant that the registrar should have declined to assess costs.
Applicable principles
10 Under s 40(4) of the MCCP Act and r 50(1) of the District Court Rules 2005 (WA) (DCR), an appeal from a decision of a magistrate to the District Court is by way of rehearing. As Derrick DCJ held in Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR (WA) 254 [37]:
Given that appeals from a decision of a magistrate are by way of rehearing, it is necessary for the appellant to demonstrate error in the court below: Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14]. Thus the appellate powers of the court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal is the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
Magistrate's decision
11 The hearing took place before Magistrate Temby on 13 April 2016. His Honour dismissed the appeal against the registrar's cost assessment for two reasons.
12 First, he accepted the submission made on behalf of Tan & Tan Lawyers that Mr Cristovao's reliance on O 9A of the RSC concerning interested third parties was misconceived in the context of Magistrates Court proceedings as the RSC and, in particular, O 9A does not apply in the Magistrates Court.
13 Secondly, the magistrate found no evidence to suggest that Mr Cristovao had at any stage contested the amount sought in the itemised bill of costs dealt with by the registrar on 14 January 2016.
Did the magistrate err?
14 In my view, the magistrate did not err in dismissing the appeal against the registrar's costs assessment. Mr Cristovao's reference to, and reliance upon, O 9A of the RSC before the Magistrates Court, and in this appeal, is misconceived.
15 The Magistrates Court has its own Rules under the Magistrates Court Act 2004 (WA) and MCCP Act. Those Rules do not incorporate RSC O 9A, and O 9A does not purport to apply to, or in respect of, Magistrates Court proceedings.
16 It appears that Mr Cristovao's arguments before the Magistrates Court, and in this appeal, are based on a misunderstanding originating from advice received in the context of proceedings in the District Court. However, in the District Court, by virtue r 6(1) of the DCR, O 9A of the RSC would apply.
17 Furthermore, and in any case, as Magistrate Temby alluded to in his discussion with Mr Cristovao during the hearing on 13 April 2016, Mr Cristovao's reference to, and reliance upon, O 9A of the RSC, was directed primarily to what was, in effect, a collateral attack on Magistrate Boon's costs order made on 2 July 2014, not to Registrar Miles' costs assessment on 14 January 2016.
18 Indeed, in his appeal notice in this proceeding, Mr Cristovao contends that Magistrate's Boon's costs order 'is a nullity based on missing jurisdictional facts' and says that the District Court in this proceeding 'must reopen the Boon's costs order that was never appealed'.
19 Magistrate Temby was, with respect, quite correct that the appeal he heard from the registrar's costs assessment could not involve a collateral attack on the costs order made in July 2014 by Magistrate Boon.
20 Finally, I note that in a document entitled, 'Appellant's reply to respondent's book of documents', filed on 9 August 2016, Mr Cristovao submits that the costs assessment made on 14 January 2016 is 'invalid upon three grounds'.
21 The first two grounds are:
The existence of an inherent fraud caused by neglect of the Respondent.
- And:
The existence of an inherent lack of bona fide jurisdiction caused by the Miles Assessment.
The existence of an inherent lack of bona fide due process of the bona fide law caused by the court's ignoring the pleas of the Appellant's to have a Proper Determination of Boon's order before Magistrate Temby on 13.4.2016.
23 As I have said, Magistrate Temby was quite correct in observing that he could not entertain a collateral attack on Magistrate Boon's judgment, including the costs order that her Honour made, and that the proposed attack, based on O 9A of the RSC, was misconceived in any case.
24 However, insofar as Mr Cristovao contends that he was denied due process, or natural justice, in the hearing before Magistrate Temby, I reject that submission. It is correct that Mr Cristovao sought an adjournment in order to obtain legal advice about whether the RSC and, in particular, O 9A of the RSC applied in the Magistrates Court.
25 Magistrate Temby implicitly rejected that application and proceeded to dismiss the appeal for the reasons that I have summarised. There was no denial of procedural fairness to Mr Cristovao in the Magistrates Court. He had a fair opportunity to present his case. He was informed by the representative of Tan & Tan Lawyers during the hearing before Registrar Miles that O 9A of the RSC did not apply and could have obtained any advice he wished prior to the hearing of the appeal before Magistrate Temby on that point.
26 In any case, the appellant's point based on the application of the RSC is misconceived and no adjournment could have cured that misconception.
27 It was, in my view, in the circumstances of the case and having regard to the six year history of the litigation, perfectly fair, proper and reasonable for the magistrate to have brought the saga of the litigation to a close by hearing and rejecting Mr Cristovao's appeal on 13 April 2016.
28 Finally, I note that during the hearing of the appeal before me today, Mr Cristovao made the same application for an adjournment as he had made before Magistrate Temby. He did so on the basis of having, he said, only received a written submission filed by Tan & Tan Lawyers in the appeal today.
29 The written submission insofar as I refer to it in these reasons set out the background of the litigation in terms which are not controversial and put essentially the same submission as to the non-application of the RSC in the Magistrates Court as was previously put to the Magistrates Court in the presence of Mr Cristovao before Registrar Miles and before Magistrate Temby.
30 The application for an adjournment was opposed by counsel for Tan & Tan Lawyers, Mr Popperwell. I rejected the application for an adjournment on the basis that Mr Cristovao has had every reasonable opportunity to respond to Tan & Tan Lawyers' contention that O 9A of the RSC is not applicable in the Magistrates Court.
31 Mr Cristovao had that opportunity before Registrar Miles; he had that opportunity before Magistrate Temby; and he had that opportunity before the District Court in the hearing of the appeal today. Contrary to Mr Cristovao's submission to me, he was not 'ambushed' at the hearing today.
Conclusion
32 For these reasons, the appeal is dismissed.
33 The orders then are:
1. The appeal is dismissed.
2. The appellant pay the respondent's costs of the appeal including reserved costs as taxed if not agreed.
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