Cristovao v Walsh
[2015] WADC 76
•26 JUNE 2015
CRISTOVAO -v- WALSH [2015] WADC 76
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 76 | |
| 26/06/2015 | |||
| Case No: | APP:105/2014 | 22 JUNE 2015 | |
| Coram: | DERRICK DCJ | 22/06/15 | |
| PERTH | |||
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | ROGERIO MARTINS CRISTOVAO JOHN WALSH SALMA MOHAMMED |
Catchwords: | Appeal Minor case claim Appeal against decision of magistrate setting aside default judgment Appeal against decision of magistrate dismissing claim Grounds on which appeal against judgment in minor case can be made |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA) Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) District Court Rules 2005 (WA) |
Case References: | Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Re Burton; Ex parte Lowe [2003] WASCA 306 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JOHN WALSH
First Respondent
SALMA MOHAMMED
Second Respondent
ON APPEAL FROM:
For File No : APP 105 of 2014
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE BAYLY
Citation : PE CTC 10689 of 2014
Catchwords:
Appeal - Minor case claim - Appeal against decision of magistrate setting aside default judgment - Appeal against decision of magistrate dismissing claim - Grounds on which appeal against judgment in minor case can be made
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Minor Cases Procedure) Rules 2005 (WA)
District Court Rules 2005 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : In person
First Respondent : No appearance
Second Respondent : In person
Solicitors:
Appellant : Not applicable
First Respondent : Not applicable
Second Respondent : Not applicable
Case(s) referred to in judgment(s):
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Re Burton; Ex parte Lowe [2003] WASCA 306
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
- DERRICK DCJ:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
1 The appellant appeals against decisions made by Magistrate Bayly on 10 October 2014 setting aside the default judgment entered against the first respondent and the second respondent, and dismissing the appellant's claim against the second respondent.
2 The appellant and the second respondent appeared in person at the appeal.
3 The first respondent did not prior to the hearing of the appeal file a notice of intention to appear under r 53 of the District Court Rules 2005 (WA) (the DCR). The first respondent was therefore not entitled to, and did not attempt to, take part in the hearing of the appeal.
4 In order to enable me to deal with the appeal I have had access to the relevant magistrate's court file which has been provided to the court in accordance with r 52(3) of the DCR. The file includes a copy of the transcript of the proceedings which took place before the magistrate on 10 October 2014. I have also had access to material that the appellant has filed in support of his appeal including his affidavit sworn on 16 April 2015 to which he made reference during the hearing of the appeal.
Background to the appeal
5 A summary of the relevant background to the appeal is as follows.
6 On 4 June 2014 the appellant commenced a minor case claim against the respondents under pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act) by filing a 'Consumer/Trader Claim Minor Case Form 6' pursuant to r 7 of the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) (the MCR). By the claim the appellant sought, in substance, the repayment by the respondents of $8,000 which the appellant had paid for legal services provided by the respondents. The total amount of $8,000 was paid by the appellant in two separate amounts of $4,000 each in January 2014 and March 2014.
7 The appellant annexed to his Form 6 a document headed 'Details of Claim'. In his Details of Claim document the appellant made various allegations against the respondents in support of his claim for the repayment of the $8,000, including allegations of misleading and deceptive conduct and unconscionable conduct.
8 On or about 25 August 2014 the 'Australian Constitutional Trust' sent a letter to the Registrar of the Central Law Courts dated 25 August 2014. The letter was sent by a Ms Shae Woodward, associate to the first respondent. In the opening paragraph of her letter Ms Woodward said the following:
We enclose a copy of the email and two attachments we have just received from Mr Rogerio Cristovao, a previous client of ours. It appears that Mr Cristovao has made a complaint to the court but we have no details of this complaint. We have received no documentation either from him or from the court.
9 The email from Mr Cristovao to the first respondent which was attached to Ms Woodward's letter and which was dated 19 August 2014 read:
Dear Sir/Madam
As courtesy please find attach the 2 Magistrates Courts documents.
10 It is not entirely clear from the Magistrates Court file which two Magistrates Court documents were attached to the appellant's email. Given the opening paragraph of Ms Woodward's letter it would appear that the attachments did not include the appellant's Form 6 and the Details of Claim document which was annexed to that form. Rather, if one just reads the letter and reviews the Magistrates Court file it seems that the attachments likely consisted of a letter from the appellant to the court dated 6 July 2014 and a letter from the court to the appellant dated 15 July 2014. The appellant's letter dated 6 July 2014 was in the following terms:
Re: Case Civil No 10689/2014 Cristovao –v- Dr Walsh of Brannagh & Otr
I refer to the above matter and knowledge the receipt of Part D – Claimant's copy lodged on the 4 June 2014 listed for Conference in the Magistrates Court on Friday 29 August 2014.
I note defendant's copy have not been enclosed with for service. I am kindly obliged to you please to inform me the status of defendant's copy.
11 The letter from the court to the appellant dated 15 July 2014 was as follows:
YOURSELF –V- WALSH
CASE NUMBER: 10689/2014
Dear Sir
I refer to your letter of 6/7/2014 and advise that under Rule 12 of the Magistrates Court (Minor Cases Procedures) Rules 2005, the Registrar has served the Defendant/Trader by posting the service copy to Doctors' Common Taylors Road, Norfolk Island, Norfolk Island on 25/06/2014.
If you have any enquiry specifically relating to this letter please contact a Customer Service Assistant on the number below and quote our reference.
12 The appellant in the course of his oral submissions asserted that it was the Form 6 that was attached to his email and that the second of the attached documents was the notification by the court that a listing conference had been set for 29 August 2014. Further in par 4 of his affidavit sworn in support of his appeal on 16 April 2015 the appellant states:
On 25 June and 19 August 2014, the First and Second respondents have been duly served with the Appellant/Claimant's Claim by the Registrar of Magistrates Court and also by the appellant; the court indicating the schedule listed conference dated 29.08.14, which the second respondent had to reply. On 25 August 2014, the first respondent did reply by an unsigned letter addressed to the then presiding magistrate; that letter being a replacement of a Notice of Intention to appear. However, that letter was seeking for Claimant's Claim to be dismissed (BOTH DEFENDANTS NON-COMPLIANCE WITH THE RULES).
13 So there is, on the face of it, a discrepancy between the contents of the letter sent by the Australian Constitutional Trust and the appellant's assertions as to what was attached to his email. However, for reasons that will become apparent it is not necessary for me to resolve the discrepancy.
14 Neither of the respondents filed a notice of intention to defend the claim within the time period specified by r 9 of the MCR.
15 Pursuant to r 13 of the MCR the appellant's claim was listed for a listing conference on 29 August 2014.
16 The respondents did not appear at the listing conference on 29 August 2014. In default of their appearance the magistrate who presided over the listing conference entered judgment for the appellant against the respondents in the amount of $8,000.20. Although the Magistrates Court's records do not specify pursuant to which statutory provision the magistrate made this order, it is clear that the magistrate had the power to make the order under s 19(2) of the Act.
17 On 16 September 2014 the first respondent filed an application made under s 19(3) of the Act to set aside the default judgment that had been entered against him. In the application the first respondent also sought an order that the appellant's claim against him be struck out as an abuse of process.
18 In support of his application the first respondent filed an affidavit sworn by him on 16 September 2014. In his affidavit, which revealed him to be a barrister living on Norfolk Island, the first respondent deposed to the fact that he had never been served with the appellant's claim or any legal process prior to or since 29 August 2014.
19 Also on 16 September 2014 the second respondent filed an application made under s 19(3) of the Act. In her application the second respondent sought an order that the default judgment entered against her be set aside and that 'her name be removed as one of the defendants in this matter'.
20 The second respondent's application was supported by an affidavit sworn by her on 15 September 2014. The second respondent's affidavit, which revealed her to be living in a suburb of Melbourne, was relatively lengthy. However, in substance, and so far as is relevant in the present context, the second respondent deposed to the following matters:
1. She was first made aware of the appellant's claim on 9 September 2014 by a previous colleague;
2. She was employed by the first respondent as his associate from late September 2013 to April 2014;
3. Although she was in February 2013 admitted as an Australian Solicitor in the Supreme Court of Victoria she did not have, nor has ever had, an Australian Practising Certificate and has never practised as an Australian Lawyer since her admission as an Australian Lawyer;
4. During her employment by the first respondent as his associate she did not act in the capacity of a lawyer/solicitor in any way;
5. At the first respondent's request she obtained a Norfolk Island Practising Certificate as the first respondent's associate which allowed her to practice on Norfolk Island but not as an Australian Lawyer in Australia;
6. During telephone conversations which she had with the appellant on 3 February 2014 and 7 February 2014, and by email sent by her to the appellant on 3 February 2014, she informed the appellant that she was not acting for him as a lawyer/solicitor during the time that the appellant was the first respondent's client;
7. As the first respondent's associate she acted under his 'complete instruction and direction';
8. The appellant instructed the first respondent to act for him. She was employed by the first respondent. She did not have authority to act in her own capacity as a lawyer;
9. She was not responsible for the appellant's representation or for providing him with legal advice while he was a client of the first respondent. Any advice given by her was done on behalf of, and at the instruction and direction of, the first respondent;
10. The amount of $8,000 claimed by the appellant is the amount that was charged by the first respondent for his fees for the services that he provided to the appellant as a barrister;
11. The amount paid by the appellant was paid directly into the first respondent's trust account which the first respondent had complete control and authority over;
12. She did not have any access to the trust account;
13. She was paid by the first respondent. Her remuneration was not based on any fees that the first respondent received from the appellant or any other client. She was paid by the first respondent regardless of whether a client of the first respondent had paid the first respondent's fees into the first respondent's trust account.
21 The hearing of the respondents' applications was listed to take place on 10 October 2014.
22 On 25 September 2014 the second respondent filed a further application in which she sought permission to appear at the hearing of her application by telephone. She filed an affidavit in support of her application sworn on 25 September 2014 in which she stated that she was a resident of Melbourne, employed as a part-time retail assistant and could not afford to pay to travel to Western Australia for the hearing.
23 On 6 October 2014 the appellant filed an affidavit sworn by him on or about that date in opposition to the second respondent's application. I do not propose to attempt to set out in detail the content of the affidavit. It is not necessary for me to do so. It suffices for me to make the following comments about the affidavit.
24 First, the affidavit contained a mixture of assertions and argument.
25 Secondly, in the affidavit the appellant asserted, in my view without any disclosed proper basis for doing so, that the second respondent had knowingly made a number of false statements in her affidavit sworn on 15 September 2014.
26 Third, the appellant annexed to his affidavit a document headed 'Chronology'. In the Chronology the appellant purported to set out the terms of a number of emails said to have been sent by the second respondent to him during the period 11 November 2013 to 12 April 2014. Further, in the Chronology the appellant highlighted the occasions on which the second respondent had used the words 'we', 'us' and 'our' when referring to either earlier communications that she and/or the first respondent had had with the appellant or work that she and/or the first respondent had performed for the appellant. It is apparent from the appellant's affidavit and the Chronology itself, that the purpose of the appellant in highlighting the second respondent's use of these words in her email was to provide support for the following assertions made in par 7.1 and par 7.1.1 of his affidavit:
7.1 The employment arrangement between the [first respondent and second respondent] is not relevant to the dispute between the [appellant] and the [respondents].
7.1.1 The relationship between [the first respondent and second respondent] is one of principal and agent where both are equally liable for their joint wrongs committed by them with common knowledge against the [appellant] in relation to work to be done and the receipt of payments for such work when those [sic] work are not being performed to the satisfaction of the [appellant] …
27 I pause here to note that having read the emails as set out in the Chronology, it is my view that there is nothing in the emails which is inconsistent with the content of the second respondent's affidavit sworn on 15 September 2014. It is quite clear that when the second respondent in the emails uses the words 'we', or 'us', or 'our', she is doing so simply to refer to herself and the first respondent or to the entity for which she is working, and not in a manner which suggests that she is on some form of equal footing with the first respondent. That this is the case is readily apparent from the fact that most, if not the vast majority, of the emails are copied to the first respondent and are signed off by the second respondent as an associate to the first respondent.
28 I note further that in two of the emails set out in the Chronology the second respondent confirms payment of the two $4,000 instalments into the trust account.
29 I return to the relevant sequence of events.
30 On 9 October 2014 a firm of solicitors acting as agent for the first respondent wrote to the Magistrates Court and requested permission for the first respondent to appear by way of telephone link at the hearing of his application.
31 On 10 October 2014 the applications filed by each of the respondents came before, and were dealt with, by Magistrate Bayly. The appellant appeared in person. The first respondent appeared by telephone from Norfolk Island. For reasons which are not readily apparent from the Magistrates Court file the second respondent, despite having made a request to appear by telephone link, did not appear.
32 At the commencement of the hearing the first respondent informed the magistrate that he and the second respondent were not in partnership, were not a company and that they were individual barristers operating through a non-profit trust (ts 3). He told the magistrate that the second respondent was a qualified lawyer who had been employed as an associate in his law practice and that she had, for family reasons, returned to Sudan (ts 4). He said that he had given the second respondent leave of absence but that he did not have a contact address for her (ts 4).
33 The first respondent also told the magistrate that he had still not been served with any legal process by the appellant (ts 4). He said that there was a protocol on Norfolk Island for the service of process and that there was no record at all of any process being served on either himself or the second respondent (ts 4).
34 At this point in the hearing the magistrate provided the appellant with the opportunity to respond to the first respondent's statements that he had not been served with the appellant's claim. The appellant responded to this invitation by telling the magistrate, in effect, that he had not previously been made aware of the first respondent's application and that it was his understanding that the hearing was for the purpose of dealing with the second respondent's application (ts 5). In response to these statements the magistrate informed the appellant that it was his view that the hearing was to deal with the applications made by both the first respondent and the second respondent (ts 5).
35 The appellant then proceeded to deal with the first respondent's assertion that he had not been served with the appellant's claim. In essence the appellant argued that he had served his claim on both the first respondent and the second respondent electronically by email (ts 6 - 7).
36 Having heard from the appellant the magistrate then returned to the first respondent and asked him whether he wanted to respond to what the appellant had said. The first respondent repeated that he had not been served with any documents, that the court had not served any documents and that he did not know what the details of the appellant's claim were (ts 7 – 8).
37 Having heard from both the appellant and the first respondent on the issue, the magistrate indicated that he was going to make an order setting aside the default judgment against both respondents and further make an order for service by the appellant of his claim on the first respondent by email. The first respondent agreed to this course of action and provided the magistrate with an email address for this purpose. The magistrate then made orders in the following terms (ts 10 – 11, 19):
1. The judgment entered on 29 August 2014 is set aside;
2. The first respondent to be served with the appellant's claim by email to the email address '[email protected]'; and
3. The second respondent to confirm receipt of the claim within two days of receipt: see also General Order issued by the Court dated 10 October 2014.
38 At this point in the hearing the magistrate turned his attention to the second respondent's application that the claim against her be dismissed. In response to the magistrate's indication that he was going to deal with the second respondent's application and that the application was supported by affidavit, the first respondent said that he did not know how the second respondent had 'put in' an affidavit because he understood that she was in Sudan, but that he supported her application (ts 13). He said that the second respondent was an employee of a law practice which is a non-profit trust and that she 'was basically a junior reader, a junior barrister under my supervision' and that she had left Australia in April to go to Sudan for family reasons (ts 12, 14). The first respondent asked the magistrate 'in a sense of fairness and justice to dismiss any judgment against' the second respondent (ts 12). At this point in the hearing, given that the magistrate was dealing with the second respondent's application, the telephone link between the court and the first respondent was, with the first respondent's agreement, disconnected (ts 15).
39 The magistrate then asked the appellant whether he really wished to proceed with his claim against the second respondent (ts 15). His Honour pointed out to the appellant that the second respondent had been employed by the first respondent and that he had been told by the first respondent that she was in Sudan (ts 15). The magistrate said to the appellant that if he had a claim it was against the first respondent and that as far as he could see the appellant did not have a separate claim against the second respondent (ts 15). In response to the magistrate's statements the appellant said the following (ts 16):
… In fact, when I went to see them, they introduced themselves as – Dr Walsh as a barrister and she as a solicitor – as the two of them. And in the whole correspondences, which I have produced in this Chronology, which is 19 sets, exist 203 times – 203 times – that she refers to 'us', 'ours' and 'we' and also she refers to the trust account.
The trust accounts always, or the four times she was referring to, she refers to 'our trust accounts'. So that means it is under my belief … But the issue that's the period from November 2013 up to March 2014, she always uses the terms 'we', 'ours' and 'our trust accounts'. So that's plural. And I was on the belief, and make me believe, and not exist any correspondence, from the period November 2013 to March 2014, not exist a single issue that she was not a solicitor.
40 In response to the appellant's above cited statements the magistrate said to the appellant that he did not think that the appellant could get anywhere with his claim because it was quite clear that the second respondent was an employee and not a lawyer at the time (ts 16).
41 There was then a further exchange between the magistrate and the appellant during which the appellant confirmed that he had paid the $8,000 into the 'Australian Constitutional Trust Account', this being the trust that he was instructed by the respondents to pay the legal fees into (ts 17 – 19).
42 The magistrate then delivered his decision on the second defendant's application for the appellant's claim against her to be dismissed in the following terms (ts 19):
Yes. I have already set aside the judgment against both parties, but of course, the case against [the first respondent] will continue, and I have made orders in relation to that. But [the first respondent] and [the second respondent] were joint defendants, but it's clear to me that the [appellant's claim] is for $8,000, being essentially for fees for work carried out by lawyers on his behalf. And of course, he can quite happily make that claim. The problem is, that in relation to [the second respondent] she was not – while she was working at the firm of which, as I understand it, [the first respondent] was principal, the monies which were paid by [the appellant] - and clearly there is evidence that he did pay those monies - were not paid to her.
They were paid, effectively, I think, to a trust account in Norfolk Island with which Mr – at the direction of [the first respondent], and [the first respondent] did operate in part from, I think, Norfolk Island. Clearly, the monies were never paid – on looking at all of the evidence, including the affidavits, which I take into account [of the second respondent] and also of the [appellant] – the monies were never paid and there is no evidence that monies were ever paid, to [the second respondent].
And in those circumstances, in my view one can't claim the return of fees from [the second respondent] who was, as I understand it – is now – she is a shop girl, but she has now anyway gone back to Africa. There is nothing to indicate that she was ever a principal of that firm and that she had anything to do with the – apart from sending mail, she had nothing to do with the – she might have assisted in the process, but she had nothing to do with where the fees actually went.
They went into a trust account, it was not her trust account, so she – there's nothing to suggest that she had ever received those fees in those circumstances where there is a claim for fees and there's a legitimate ability by [the appellant] to make a claim for those fees, but in my view he can't make a claim for those fees against somebody who never received those fees. In those circumstances, the claim against [the second respondent] is dismissed.
Grounds of appeal
43 It is against the above background that the appellant has filed his notice of appeal dated 29 October 2014.
44 It is apparent from the notice (as I have already indicated) that the appeal is against both the decision of the magistrate setting aside the default judgment entered against the first respondent and the second respondent, and the decision of the magistrate dismissing the appellant's claim against the second respondent.
45 With respect to the appellant, who is of course unrepresented, some of the language used by him in the notice of appeal is difficult to make sense of.
46 The grounds of appeal are stated in the notice of appeal in the following terms:
1. Magistrate's Bayly's decision is a NON-CORAM JUDICE as the criteria or opinion referable to as the Jurisdictional Facts of the case before him are missing upon a reasonable review by a judicial review judge as the decision maker is not merely guilty of an error in law or in facts but is in total want of jurisdiction as the Jurisdictional Facts before him based on the Statutory Framework of the impugned case does not enliven his jurisdiction.
2. Magistrate Bayly is never and can never be the appeal judge endowed with the necessary jurisdiction as afforded by the Statutory Framework of the impugned case to set aside the Final Judgment dated 29.8.2014 of his peer, a fellow magistrate Jennifer Hawkins who is of the same ranking order as the former and as such it is as if the former had never sat in judgement [sic] at all (the Final Judgment).
3. The Final Judgment is for a liquidated sum as per RSC1971 O.13 r.3 and can be executed forthwith by the Appellant as there is no impediment to it caused by the NON-CORAM JUDICE JUDGMENT of Magistrate Bayly.
47 In addition, and under the heading 'Appeal Details' the appellant states the following in the notice of appeal:
Magistrate Bayly erred in law and facts or in mixed law and facts in terms of the following:
1) He knows or ought to have known that he has no jurisdiction to set aside the final judgment of Magistrate Hawkins as both Magistrates are of the same ranking order.
2) He with malice denied the Appellant his natural justice by not addressing the issues before him as per the record of the transcript of the proceedings dated 10.10.2014.
3) His decision is a nullity in law for want of jurisdiction as the criterion or jurisdictional facts before him are vexatious, illogical, arbitrary, unreal and an abuse of process.
4) He is a biased judge in that he is/was aware of the existence of the un-serviced First Defendant's Application dated 16.9.2014 to Set Aside the Final Judgment dated 29.8.2014 upon the Claimant and yet the former acceded to the latter's misleading allegations that the latter was never served with the Appellant's Claim dated 4.6.2014: such allegations being contradictory to the latter's letter to the Registrar of the Court dated 25.8.2014 acknowledging the service of the Appellant's Claim by the Court Registrar and supplemented by the email of the Appellant effecting the same.
5) He intercepted the fraud upon the court by accepting the fiction that the Second Defendant was away in Sudan when it was clear to him that the latter was awaiting the court's instruction to be connected by video link for the hearing before him dated 10.10.2014 as per evidenced by the trial transcript.
6) His Unlawful Exoneration of the Second Defendant coupled with Unlawful Expurgation of a Valid Judgment and the Unlawful Waste of Public Resources results in a CORAM NON-JUDICE; as such originates from an inferior tribunal, it is a nullity.
48 Doing the best that I can to discern grounds of complaint from the above quoted portions of the appellant's appeal notice, it seems to me that the appellant's essential grounds for complaint in relation to the magistrate's decision setting aside the default judgment are as follows:
1. The magistrate did not have jurisdiction to make an order setting aside the default judgment;
2. The magistrate 'with malice' denied him natural justice by 'not addressing the issues before him'; and
3. The magistrate erred in finding (or accepting) that the first respondent and the second respondent had not been served with the appellant's claim.
49 As to the magistrate's decision to dismiss the appellant's claim against the second respondent, the appellant's essential grounds for complaint, again doing the best I can to discern grounds of complaint from the above quoted portions of the notice of appeal, appear to be as follows:
1. The magistrate 'with malice' denied him natural justice by 'not addressing the issues before him';
2. The magistrate had no jurisdiction to make an order dismissing his claim against the second respondent;
3. The magistrate erred in accepting and proceeding on the basis that the second respondent was in Sudan when it should have been clear to him that she was in Melbourne and available to appear at the hearing of her application by telephone link; and
4. The magistrate erred in deciding that his claim against the second respondent should be dismissed.
50 I will for the purpose of dealing with the appeal treat the appellant's grounds of complaint as I have identified them as the grounds of appeal.
Provisions governing appeals against decisions of magistrates
51 It is necessary, before turning to deal with the appeal, to refer to the relevant legislative provisions governing appeals to this court from decisions of magistrates.
52 The appeal against the decision of Magistrate Bayly has been commenced under s 40 of the Act. Section 40 is, so far as is relevant in this case, in the following terms:
(1) 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.
(2) An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
(3) An appeal cannot be commenced more than 21 days after the date of judgment unless the District Court gives leave to do so.
(4A) The appeal must be conducted in accordance with rules of court made by the District Court.
(4) The District Court must decide the appeal on —
(a) the material and evidence that were before the Magistrates Court; and
(b) any other evidence that it gives leave to be admitted.
…
53 Section 32 of the Act provides, so far as is relevant, as follows:
(1) Except as provided by this section, no appeal lies against —
(a) an order made by the Court in the course of proceedings in a minor case; or
(b) the judgment of the Court in a minor case.
(2) If a party to a minor case is dissatisfied with the judgment of the Court in the case then —
(a) if the Court was constituted by a magistrate — an appeal lies against the judgment under Part 7 and, subject to subsection (3), Part 7 applies to the appeal; or
…
(3) Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds —
(a) that the minor case —
(i) was not within the jurisdiction of the Court; or
(ii) was not a minor case;
or
(b) that in dealing with the minor case there was a denial of natural justice; or
(c) that the judgment was beyond the Court's jurisdiction.
Appeal against decision setting aside default judgment
55 I will deal first with the appellant's appeal against the magistrate's order setting aside the default judgment that had previously been entered against both respondents.
56 There is no question that the appellant's claim against the respondents is a minor case within the meaning of s 26(1)(a) of the Act. This is not in dispute.
57 The insurmountable difficulty for the appellant so far as this aspect of his appeal is concerned, is that an order setting aside a default judgment is an order made by the Magistrates Court in the course of proceedings in a minor case. It is not a judgment of the court in the minor case. Accordingly, by reason of s 32(1)(a) of the Act, the appellant has no right of appeal against the magistrate's decision. It follows that the appellant's appeal against the magistrate's decision setting aside the default judgment entered against both respondents must be dismissed.
58 Even if it was not the case that s 32(1)(a) of the Act precluded the appellant from appealing against the magistrate's order, I note for the benefit of the appellant that I would still dismiss each of his grounds of appeal as I have identified them. I would do so for the following reasons.
59 As to the appellant's ground of appeal that the magistrate did not have jurisdiction to set aside the default judgment, this is an allegation that the magistrate's decision was beyond the court's jurisdiction. It would therefore be open to the appellant to appeal against the magistrate's decisions on this ground if the order was a judgment in the minor case: the Act, s 32(3)(c). The problem for the appellant, however, is that the magistrate clearly did have the power to set aside the default judgment. He was expressly given that power by s 19(3) of the Act.
60 During the hearing of the appeal the appellant submitted that the power of a magistrate to set aside a default judgment under s 19(3) only exists where the default judgment has been entered by a registrar of the Magistrates Court as opposed to a magistrate. Such a reading of the section is incorrect. The fact that it is incorrect is apparent from the definition of the word 'Court' contained in s 3 of the Act. The word 'Court' as used in s 19(3) is defined in s 3 to mean 'the Magistrates Court'. There is therefore no basis in the wording of s 19(3) to read down the section so as to only apply in those cases where a default judgment has been entered by a registrar.
61 The appellant's second ground of appeal is that the magistrate denied him natural justice. An alleged denial of natural justice is, by virtue of s 32(3)(b), a ground on which an appeal in a minor case may be made. Accordingly, once again this is a ground on which the appellant could appeal against the magistrate's order if the order was a judgment in the minor case.
62 The rules of natural justice (or procedural fairness) have two substantive requirements. The first is that a person making a claim, or against whom a claim is made, must be given a reasonable opportunity of appearing and presenting his or her case: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, 4; Hoskins v Van Den-Braak (1998) 43 NSWLR 290, 294; Re Burton; Ex parte Lowe [2003] WASCA 306 [63]. The second is that the decision-maker be a person who is disinterested or unbiased in the matter to be decided: Re Burton [63]. Accordingly, it is not strictly speaking correct to assert that a judicial officer has denied a party natural justice by not addressing the issues before him or her.
63 In any event, there is in my view simply no basis for the appellant to assert that he was not given a reasonable opportunity to present his case, or that the magistrate was biased, or that the magistrate did not address the issues before him. As is apparent from my above summary of the proceedings that took place before the magistrate and a reading of the transcript in its entirety, the magistrate was at all times very courteous to the appellant and gave the appellant an opportunity to say everything he wanted to say about the applications to set aside the default judgment. Moreover, for the appellant to assert or suggest that the magistrate was biased or, to use the appellant's words, acted 'with malice', is scandalous. There is simply no proper basis for the making of such an assertion or suggestion. Finally, the magistrate clearly did, in dealing with the application to set aside the default judgment, address the issues that were before him.
64 As to the third of the appellant's grounds of appeal, this is no more than a complaint about the finding which the magistrate made on the evidence before him. Clearly, this is not a permissible ground of appeal in a minor case as specified in s 32(3) of the Act. In any event, in my view it was open to the magistrate, on the basis of the material before him and in light of what the first respondent actually said to him during the hearing, to conclude that the first respondent had not been served with the claim: see the Act, s 29(4).
65 I recognise that there is arguably an inconsistency between the terms of the appellant's previously referred to email to the first respondent dated 19 August 2014 and what the magistrate was told at the hearing by the first respondent. However, given my decision that the appellant has no right to appeal against the magistrate's decision and as I have already indicated, I do not need to arrive at any final conclusion in relation to this issue.
66 It seems to me that on the material that was before the magistrate it was open for his Honour to conclude that the first respondent had not been served. I do not consider that the contents of the letter from the Australian Constitutional Trust to the court dated 25 August 2014, even if it was assumed that the magistrate was aware of the letter, dictated or necessitated that his Honour find that the first respondent had been served with the appellant's claim.
67 As to the finding apparently (if not expressly) made by the magistrate that the second respondent had not been served, the finding was entirely justified based on the second respondent's affidavit. As previously indicated, the second respondent's affidavit that was before the magistrate revealed that she was not working for the first respondent at the time that the appellant sent his email to the first respondent's email address.
68 For the reasons I have stated I dismiss the appellant's appeal against the decision of Magistrate Bayly setting aside the default judgment entered against the first respondent and the second respondent.
Appeal against decision dismissing claim against second respondent
69 I turn to the appellant's appeal against the decision of the magistrate dismissing his claim against the second respondent. His Honour's decision in this regard was a judgment in a minor case and it is therefore open to the appellant to appeal against the decision on one of the grounds specified is s 32(3) of the Act.
70 The appellant's first ground of appeal, as I have identified it, is that the magistrate 'with malice' denied him natural justice by not addressing the issues before him. The ground is completely without merit. Everything I have said in dealing with the similar ground relating to the decision to set aside the default judgment is applicable. I note in this context, as is apparent from my above summary of the proceedings, that the magistrate took the time to explain to the appellant what he considered to be the difficulties with the appellant's claim against the second respondent.
71 The appellant's second ground of appeal asserts an absence of jurisdiction. This is a ground on which an appeal against a judgment in a minor case can be made: the Act, s 32(3)(a).
72 The ground of appeal is without merit. The magistrate clearly had, by virtue of s 18(1) of the Act, the statutory power and jurisdiction to make the order dismissing the appellant's claim against the second respondent.
73 The third of the appellant's grounds of appeal is that he wrongly accepted and proceeded on the basis that the second respondent was in Sudan.
74 It would appear from the second respondent's application to appear at the hearing by telephone link from Melbourne that she was not in Sudan at the time of the hearing. Moreover, and as I have already indicated, it is not clear to me why, in light of the second respondent's application to appear at the hearing by telephone link, that the second respondent did not so appear. It would seem from the magistrate's comments made during the hearing that the application had not been brought to his attention.
75 In any event, the ground of appeal is not one on which an appeal against a judgment in a minor case can be brought: the Act, s 32(3). Further, it is quite clear that the magistrate's apparent belief that the second respondent was in Sudan had no bearing whatsoever on his decision to dismiss the appellant's claim against the second defendant. This is not surprising. The second respondent's location was irrelevant to the question whether the appellant had a valid claim against the second respondent.
76 The appellant's final ground of appeal is that the magistrate erred in dismissing his claim. This is no more than a complaint about the magistrate's finding that the appellant could not succeed in his claim against the second respondent. This is not a ground on which a judgment in a minor case can be made under s 32(3) of the Act. Further, I note for the sake of completeness, even though it is not strictly necessary for me to do so to deal with the appeal, that in my respectful opinion the magistrate's decision to dismiss the appellant's claim against the second respondent was, on the basis of the evidence that was before the magistrate, correct.
77 I therefore dismiss the appellant's appeal against the magistrate's decision dismissing his claim against the second respondent.
Conclusion
78 The appeal is dismissed.
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