Davey v Fisher as Trustee for the Fisher Famly Trust t/as Perth Diesel Performance - [2024] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DAVEY -v- FISHER as Trustee for THE FISHER FAMLY TRUST t/as PERTH DIESEL PERFORMANCE [2024] WADC 100
CORAM:   EGAN DCJ
HEARD:   15 OCTOBER 2024
DELIVERED          :   29 NOVEMBER 2024
FILE NO/S:   APP 1 of 2024
BETWEEN:   ALAN DAVEY
Appellant
AND
TRAVISFISHER as Trustee for THE FISHER FAMLY TRUST t/as PERTH DIESEL PERFORMANCE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE OWEN-CONWAY
File Number            :   PER/CTC/6092/2021

Catchwords:

Magistrates Court appeal - Application to strike out - Whether likely costs of appeal to parties would be disproportionate to the amount of the claim - Section 43(3) Magistrates Court (Civil Proceedings) Act 2004 (WA) - Principles to be applied - Judicial discretion

Legislation:

Legal Profession Act 2008 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)

Result:

Appeal struck out

Representation:

Counsel:

Appellant	:	Mr B R Primrose
Respondent	:	Mr C G Mofflin

Solicitors:

Appellant	:	HHG Legal Group
Respondent	:	McCabes

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

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47
Cristovao v John Horton & Associates [2012] WASCA 12
Defendi v Eden Hill Plasterers [2008] WASCA 269
Duluxgroup (Australia) Pty Ltd v Chapple [2023] WASCA 83
Miller v McKnight [2023] WASCA 182
O'Bree v Collier [2012] WASCA 88
Rankilor v Etihad Airways PJSC [2019] WASCA 36
Summit Rural (WA) Pty Ltd v Lenane Holdings Pty Ltd [2024] WASCA 122
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
Titelius v Crowe [2017] WADC 116
Triplett v Busselton City FC Inc [2019] WASCA 98
TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67
Water Board v Moustakas (1988) 180 CLR 491

EGAN DCJ:

Overview

By Amended Notice of Appeal dated 19 February 2024 (Notice), Alan Davey (the Appellant) appealed against the decision of Magistrate Owen‑Conway delivered 14 December 2023 following a trial of the Appellant's claim against Travis Fisher as Trustee for The Fisher Family Trust trading as Perth Diesel Performance (the Respondent) for loss and damage caused by defective work performed by the Respondent on a 2013 Toyota Landcruiser (Magistrates Court Proceedings).
In the Magistrates Court Proceedings, the amount claimed by the Appellant (as Claimant) totalled $9,226.25.
The learned magistrate dismissed the Appellant's claim.
The Appellant appeals on the basis that the learned magistrate erred in law by failing to address the Appellant's case on the issue of possessory title. The Appellant says that the learned magistrate erred in law by failing to address the Appellant's case, and should have found that:
(a)the Appellant held a possessory title in the vehicle as bailee, which was as good as an absolute title of ownership as against the Respondent; and
(b)the Appellant's possessory title entitled it to claim the sum of $9,226.25 from the Respondent as damages occasioned by the Respondent's breach of the contract, as the learned magistrate otherwise determined in her reasons.
By Notice of Respondent's Intention dated 24 January 2024 the Respondent indicated his intention to argue at the appeal that the learned magistrate's decision should be upheld, but also sought orders that the appeal be struck out pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act) (the Strike Out Application).
A hearing in relation to the Strike Out Application took place before me on 15 October 2024.
For the reasons that follow, I strike out the appeal pursuant to s 43(3) of the Act.

Background

By way of background, and as is set out in written submissions dated 20 March 2023 filed in the Magistrates Court Proceedings, the Appellant entered into a contract with the Respondent on or about 19 April 2017 for the Respondent to install a lock‑up kit in a 2013 Toyota Landcruiser Wagon VX 4.5 V8 TD (Vehicle) (Contract). In the Magistrates Court Proceedings the Appellant (as Claimant) alleged that by undertaking to install the lock‑up kit, the Respondent (as Defendant in the Magistrates Court Proceedings) owed the Appellant a duty of care to ensure that the lock‑up kit was fit for its intended purpose, that it was of merchantable quality, that it was of sufficient durability to achieve its intended purpose, and that the Respondent failed to exercise due care, skill and diligence in completing the installation of the lock‑up kit. The Appellant (as Claimant) further alleged that as a result of the Respondent's breach of contract and/or breach of duty of care, the Appellant suffered loss and damage in the form of replacing the vehicle's transmission and torque converter, and that the total loss and damage amounted to $9,266.25. See Claimant's Outline of Opening Submissions dated 20 March 2023, Appeal Book, page 57.
The Respondent defended the claim on a number of bases, including, relevantly, that the Appellant was not the person entitled to recover for any damage caused to the Vehicle. See Defendant's Written Submissions dated 11 August 2023, Appeal Book, page 65.
A trial in the Magistrates Court Proceedings took place before the learned magistrate on 22 ‑ 24 August 2023, and 29 August 2023.
On 14 December 2023 the learned magistrate dismissed the Appellant's claim, in effect, on the basis that the Appellant was not the person entitled to recover any damage caused to the Vehicle (although the learned magistrate did find that the Respondent had breached the Contract), and in doing so provided detailed reasons: see Davey v Fisher, magistrate's reasons.

Amended Notice of Appeal and Strike Out Application

On 3 January 2024, the Appellant lodged an appeal against the decision of the learned magistrate, although amended that appeal notice on 19 February 2024.
I refer to and repeat [4] and [5].
On 6 August 2024, a directions hearing took place before a registrar of this court, and at that time, counsel for the Respondent requested that the Strike Out Application be programmed ahead of the appeal, citing in the support, the decision in Duluxgroup (Australia) Pty Ltd v Chapple [2023] WASCA 83 (Duluxgroup). In that case, and after setting out s 43(3) of the Act (which is set out at [27]), the court had this to say at [5]:
This court may make an order under s 43(3) on its own initiative. Often, however, no judicial officer will consider the papers in an appeal until shortly before the appeal hearing. This is what occurred in this appeal. By then most of the costs arising in the appeal will have been sunk - a matter of consequence to the exercise of discretion under s 43(3) which, by its reference to 'likely costs', directs attention to costs yet to be incurred. The practical operation of s 43(3) relies on one or both of the parties' legal representatives bringing to the attention of the court that it is possible that the likely costs of the appeal to the parties will be disproportionate. In this respect the parties' legal representatives' duty to the court to act with independence in the interests of the administration of justice is paramount, and, to the extent of any conflict, prevails over the duty to their clients.
(citations omitted)
The court in Duluxgroup went on to observe that where there was a possibility that likely costs of the appeal to the parties would be disproportionate, then the court should be advised as a matter of course.
In light of that which the court had to say in Duluxgroup, counsel for the Respondent acted appropriately when drawing to the attention of the learned registrar the possible need for the Strike Out Application to be listed ahead of the appeal.
In response, counsel for the Appellant argued before the learned registrar that the Strike Out Application should be programmed to be heard at the same time as the appeal in order to avoid two separate appearances (one dealing with the Strike Out Application and the other being with the appeal proper), and that to do otherwise would 'defeat the purpose' of the appeal. In making that submission counsel for the Respondent relied upon the decision of Staude DCJ in Titelius v Crowe [2017] WADC 116 (Titelius). Whilst counsel for the Respondent did not take the learned registrar to any particular passage within Titelius, I note that his Honour stated the following in the final paragraph of his judgment:
Ending on a cautionary note, I would observe, … secondly, resources applied by the defendant in seeking to strike out the appeal should be reserved for the appeal hearing itself. Except in the clearest of cases, a strike-out application is no more economical than a hearing of the appeal.
I further note that in Titelius the respondents sought to strike out the claim relying not only on s 43(3) of the Act, but also on s 43(4), and of course s 43(4) provides, in effect, and amongst other things, that an appeal may be struck out where there is no reasonable basis for it, or that it does not have reasonable prospects of success. It follows that when considering strike out applications made under s 43(4) of the Act, the court is required to consider the merits of the application, and, as Staude DCJ observed at [57] in Titelius, 'the court is bound to be circumspect in considering that [an appeal] has no reasonable basis, or no reasonable basis'. In making this observation Staude DCJ stated as follows:
As Mitchell JA observed in TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67 [87]:
… The summary determination of proceedings also risks injustice to the unsuccessful party who is denied a full opportunity of presenting that party's case. These considerations inform the court's general approach of summarily determining contested questions only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.
(emphasis added)
In those circumstances it is perhaps not surprising that Staude DCJ in Titelius set out his cautionary note, and indeed it would appear to be more relevant to a strike out application under s 43(4) of the Act, and not s 43(3) of the Act.
Even if that not be the case, Titelius was decided some six years before Duluxgroup, and so its currency in relation to applications under s 43(3) of the Act may not be as applicable as it perhaps once was. Regardless, as will be apparent from that which follows, it does seem that this was a clear case where determination of the Strike Out Application would have proved far more economical than having both it and the appeal proper heard at the same time. Furthermore, based on all of: that which transpired before the learned magistrate concerning issues relating to ownership of the Vehicle; the issues that are now agitated in the appeal by the parties concerning those matters (noting that those issues would likely have been known to the parties at the time of their appearance before the learned registrar); that both parties were represented by counsel in a hearing that was expected to take one day; and that the amount in dispute was $9,266.25, one might suggest that, exercising appropriate foresight, it was very clear that the Strike Out Application (if successful) would obviate significant cost being expended by the parties in the appeal. True it is that some additional cost would be expended by the parties if the Strike Out Application proved to be unsuccessful, however, in this case at least, that is insufficient reason for the Strike Out Application not to be heard ahead of the appeal proper.
In any event, ultimately, the learned registrar listed the Strike Out Application and the appeal to be heard at the same time, that is, on 15 October 2024. The learned registrar may or may not have been swayed by submissions from counsel for the Appellant that there were slim chances of the Strike Out Application being successful, or that the sum in dispute was at the upper limit of the jurisdictional threshold, or that the appeal was on a narrow issue and very straightforward. Nonetheless, the learned registrar advised counsel for the parties, in effect, that it was entirely a matter for the appeal judge whether the Strike Out Application would be heard together with, or independently from, the appeal.

The learned registrar's decision to list the Strike Out Application at the same time as the appeal was not appealed by the Respondent, which is perhaps understandable given not only the associated cost and delay that would inevitably be incurred, but also because the learned magistrate made it clear that whether or not the Strike Out Application would ultimately be heard separately from the appeal was a matter for the appeal judge.
The observations at [21] ‑ [22] should not be taken as gravid with criticism for either party, however as will be apparent from that which follows, this case serves to illustrate the point made by the court in Duluxgroup as referred to at [14] bearing in mind that, like in the Supreme Court, no judicial officer seized of an appeal in this court will consider the papers in an appeal until shortly before the appeal hearing.
In any event, after being seized of the appeal, on 11 October 2024, I caused for my associate to write to the parties advising them, in effect, that the hearing on 15 October 2024 would be confined to the Strike Out Application, and that if that application was unsuccessful then a further hearing date would be fixed for the hearing of the appeal.
At the hearing on 15 October 2024 the parties were very ably represented by counsel who, besides making helpful and comprehensive oral submissions, relied on written submissions filed with the court on 20 August 2024 (in the case of the Appellant) and 12 September 2024 (in the case of the Respondent).

Applicable legal principles

In light of that which is set out above, the question for determination is whether the appeal should be struck out pursuant to s 43(3) of the Act.
Section 43(3) provides, in substance, that this court:
… may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.
The court in Miller v McKnight [2023] WASCA 182 (Miller) stated that:
21… It is apparent that there are two separate and distinct limbs to s 43(3). An appeal court may strike out an appeal of the present kind if one or both of the following are satisfied:
1.The likely costs of the appeal to the parties would be disproportionate to the amount of the claim in the case which is the subject of the appeal.
2.The likely costs of the appeal to the parties would be disproportionate to the nature of the case which is the subject of the appeal.
22The discretion is enlivened once either limb is made out.
23The 'case' refers to the relevant proceedings in the Magistrates Court. Accordingly, the 'amount of the claim' refers to the amount of the substantive relief for which the claim was brought in the Magistrates Court. The expression 'the nature of the case' in the second limb does not relate to the strength or merits of the appeal. But nor is the nature of the case confined to the nature of the substantive proceedings in the Magistrates Court - it might, for example, be that the appeal is brought against an interlocutory order. The term 'disproportionate' means out of proportion. Whether the likely costs are disproportionate is an evaluative question of fact and degree. The only relevant costs are the costs of the appeal to this court; the costs incurred at first instance and in the appeal to the District Court are irrelevant.
24Two main issues arise in relation to the potential application of s 43(3) of the Act. First, the appeal court must determine whether its power to strike-out the appeal is enlivened - are one or both of the limbs under s 43(3) satisfied? Second, assuming the power to strike-out is enlivened, should the power be exercise? This second issue involves the exercise of judicial discretion.
25The exercise of the discretion is performed by the statutory purpose that underpins s 43(3). That purpose was described by Newnes & Murphy JJA in Cristovao v John Horton & Associates:
Section 43(3) is concerned to prevent disproportionate costs being incurred by the parties on appeals from proceedings in the Magistrates Court. It is not concerned with proportionality in any other respect, such as the court resources required for the determination of the appeal. It is evident that the requirement of proportionality under s 43(3) is intended to enable a party to litigate a modest claim in the Magistrates Court without the risk that an opponent who (for whatever reason) is unconcerned with costs might pursue appeals of disproportionate and even crippling expense.
26Accordingly, s 43(3) is not concerned with proportionality in the sense of the application of scare public resources in terms of the use of the limited judicial resources of the court ‑ the provision is only concerned with the resources of the parties.
27Two more things may be said about the exercise of the discretion. First, in considering whether an appeal should be struck out based on the first limb it is not necessary to consider whether the second limb has also been made out. Second, in the exercise of the discretion this court is not required to consider the merits of the decision below. Otherwise the discretion is an unfettered discretion to be exercised judicially according to the justice of the case.
(citations omitted)

Is the court's discretion enlivened?

The first question for consideration therefore is whether the court's discretion is enlivened under either of the two limbs under s 43(3) of the Act.
Counsel for the Respondent submitted that the court's discretion is clearly enlivened under the first limb, given that:
(a)the Appellant conceded that the parties' costs on the appeal will more likely than not exceed the amount of the substantive claim;
(b)the Court of Appeal has expressed the view in various cases (citing Miller; Rankilor v Etihad Airways PJSC [2019] WASCA 36 (Rankilor); and Triplett v Busselton City FC Inc [2019] WASCA 98 (Triplett)) that even in a simple appeal, costs are highly likely to exceed $15,000; and
(c)in this case:
(i)both parties are legally represented;
(ii)each party has briefed counsel;
(iii)the appeal is listed for one day;
(iv)the Appellant has filed a 17 page outline of written submissions supported by reference to a page of legal authorities, from which half a dozen will be read from; and
(v)the Respondent will have much to say in the appeal by way of response.
In addition to those matters identified by counsel for the Respondent, I note as follows: the appeal originally comprised six grounds of appeal; the Appellant (no doubt on advice from counsel) abandoned all of those grounds in favour of the two grounds which are now advanced in the Amended Notice of Appeal; an appeal book has been filed by the Appellant which comprises 908 pages of material; the Respondent has filed 21 pages of written submissions in response to the 17 pages of submissions filed by the Appellant; and further correspondence and submissions were provided to the court on 12 October 2024 (from the Appellant) and 13 October 2024 (from the Respondent) concerning the appropriateness of the court's decision to limit the hearing on 15 October 2024 to the Strike Out Application.
Counsel for the Appellant in written submissions submitted that whilst there is no evidence about the parties' likely costs of the appeal, those costs will 'more likely than not' exceed the amount of the substantive claim and that in those circumstances the court's discretion is 'probably enlivened'. In oral submissions however, counsel for the Respondent conceded, appropriately, that the court's discretion is in fact enlivened under the first limb of s 43(3) of the Act.

For the reasons set out in [30] ‑ [32] I consider that there can be no doubt that the costs of the appeal would be disproportionate to the amount involved in the appeal, and so the court's discretion is enlivened under the first limb of s 43(3) of the Act.
In the circumstances, it is unnecessary to consider whether the discretion is enlivened under the second limb of s 43(3) of the Act. See also Tey v Optima Financial Group Pty Ltd [2010] WASCA 219 (Tey).

Should the discretion to strike out be exercised?

Having determined that the court's discretion is enlivened, I turn to the issue of whether the court should exercise that discretion and strike out the appeal.
I refer to and repeat [25] and [26] of the court's decision in Miller as set out at [28], and observe, relevantly, that in determining the Strike Out Application, not only is the court expressly not required to consider the merits of the learned magistrate's decision, but also that the discretion to strike out is unfettered. See also Tey [25]; Cristovao v John Horton & Associates [2012] WASCA 12 [20] (Cristovao); O'Bree v Collier [2012] WASCA 88 [21] (O'Bree); and Triplett [18]. Indeed, to adopt a contrary view would be incompatible with the court's admonition in Duluxgroup that strike out applications which have, in effect, a real possibility of succeeding, should be determined prior to any appeal hearing.
In Miller, the court declined to strike out the appeal notwithstanding that it was 'plain' that the likely costs of the appeal would be disproportionate to the amount of the claim in the appeal (which was confined to $1,930.81). The court's declination was due to a number of countervailing factors, namely: first, each of the appellant's and respondent's costs were being met (and being met willingly) by their respective insurers; secondly, the unusual circumstances of the case would not prevent or hinder the fulfilment of the statutory purpose of s 43(3) of the Act; thirdly, the appeal raised a question of legal principle of general application; and fourthly, resolution of the appeal had the potential to assist in the resolution of other not dissimilar claims in the Magistrates Court, and indeed it seems that there were up to almost 1,000 other such claims. Relevantly the court in Miller stated as follows at [50]:
On balance, weighing the factors we have referred to, and having regard to the statutory purpose that informs the discretion under s 43(3) of [the Act], we are not persuaded that the court should strike out the appeal. In the ordinary case this court might usually be expected to exercise the power under s 43(3) to strike out an appeal concerning a Magistrate's Court claim for $1,930.81. This is not an ordinary case. There are wider benefits that may accrue to the benefit of the administration of justice in the court hearing and determining the appeal.
In Tey, the court struck out the appeal in circumstances where the amount of the claim was $550 and the costs of the appeal to the respondent alone were likely to be in the order of $12,000. Furthermore, in that case, the court stated at [27] that:
… Nothing has been put before this court which could conceivably provide any justification for the appeal to proceed in those circumstances. Indeed, this seems to me to be a quintessential example of the type of case at which s 44(3) [of the Act] is aimed.
In Cristovao, the court dismissed the appeal pursuant to s 43(3) of the Act in circumstances where the amount of the claim was $2,700 stating, relevantly, as follows:
27This appeal, in our view, is precisely the sort of matter to which s 43(3) [of the Act] is directed. The claim in the Magistrates Court is a straightforward one for what nowadays, in the context of contested litigation, is a small amount of money. Indeed, it falls well within the minor cases jurisdiction of the Magistrates Court (which currently has a limit of $10,000) although the appellant has chosen not to bring the action under that procedure. The appeal itself concerns a relatively minor procedural point which involved an exercise of discretion by the magistrate. Costs in the order of $20,000 on an appeal in respect of a procedural issue of that nature, in a claim involving a total sum of $2,700, are so entirely disproportionate as to justify the appeal being struck out under the second limb of s 43(3) [of the Act]. There is nothing in the appeal which could possibly warrant involvement of this court.
28In any event, we consider that the appeal would also fall within the first limb of s 43(3) [of the Act]. The cost involved in an appeal to this court is entirely disproportionate to the claim of $2,700. It is liable to be struck out on that ground also.
In O'Bree, the court struck out the appeal in circumstances where the amount of the claim was $4,920.20 stating, relevantly, as follows:
25When the cost agreement between the appeal and his solicitor and the filing fees are taken into account, the costs of the appeal to the parties are therefore likely to be in the order of either $13,000 or $18,000, depending upon the outcome. …
26The appeal does not involve the determination of any issues of legal principle and the case is of a type that is common‑place in the Magistrates Court. It concerns factual issues that are neither complex nor novel in their nature. It is, in short, a small run of the mill motor vehicle accident claim. The costs of the appeal in this court are entirely disproportionate to the amount of the claim and the appeal should be struck out.
In Triplett, the court struck out the appeal in circumstances where the amount of the claim was $5,964.80, stating at [17]:
In our view, the likely costs which would be incurred by the parties in this appeal would be disproportionate to the nature of the case which is the subject of the appeal. While the appellant is self‑represented, the [respondent] is represented by solicitors and counsel, and has indicated that it intends to take part in the appeal. The experience of this court is that costs in an appeal are highly likely to exceed $15,000 in even a simple appeal where one of the parties is legally represented. The likely costs of the appeal to the parties is disproportionate to the costs award of $5,694.80 which is, substantively, the subject of the appeal. There is no discretionary reason in this case for the court to decline to exercise its power under s 43(3) of the [Act].
In Duluxgroup, the court, in effect, struck out the appeal in circumstances where the amount claimed was $7,508, stating, relevantly, and amongst other things, that the appeal 'should never have been allowed to occur'.
In Rankilor, the court struck out an appeal in circumstances where the amount claimed in the Magistrates Court was $7,569.50, although the nature of the case which was the subject of the appeal was a decision of the learned magistrate to permit legal representation and award costs in the amount of $1,250. In dismissing the appeal, the court stated, relevantly, at [20]:
In our view, the likely costs which would be incurred by the parties in the appeal would be disproportionate to the nature of the case which is the subject of the appeal. The experience of this court is that such costs are highly likely to exceed $15,000 in even a simple appeal where one of the parties is legally represented. It is unnecessary to attempt further quantification of the likely costs in this case. Even on this basis, the likely costs of the appeal to the parties is disproportionate to the costs award of $1,250 which is, substantively, the subject of the appeal. There is no discretionary reason in this case for the court to decline to exercise its powers under s 43(3) of the [Act].
A number of matters can perhaps be distilled from the above cases, namely:
(a)the discretion to strike out is not exercised in circumstances where there are countervailing factors which might weigh against the exercise of the discretion (and those countervailing factors are often referred to as 'discretionary reasons');
(b)the discretion is not exercised in 'ordinary' or 'common place' cases, or in relation to cases which are neither complex nor novel;
(c)the discretion is exercised in cases where the amount claimed falls within the limit of the minor claims threshold in the Magistrates Court ‑ that threshold being $10,000; and
(d)the discretion is exercised in cases where the costs incurred or likely to be in incurred in the appeal are in an order of magnitude of at least three times the value of the claim.
The observations set out at [44(c)] and [44(d)] should not be understood as limiting the exercise of the discretion to cases where, respectively, the claim falls within the limit of the minor claims threshold and/or the costs of the appeal are in an order of magnitude of at least three times the value of the claim, as clearly every case needs to be assessed on its own facts pursuant to the justice of the case.
Counsel for the Appellant submitted, in effect, that Miller does not stand for the principle that the merits of the appeal should not be taken into account in an appeal; rather, counsel submitted that because the discretion is unfettered, and because it is a discretion that is exercised according to the justice of the case, it is open to the court to consider the merits of the case.
Counsel for the Appellant submitted further that in this case there are four factors which the court should take into account when considering the justice of the case, namely:
(a)First, the likely costs of the appeal, although counsel for the Appellant accepted that there is no shying away from the fact that those costs are greater than the amount claimed. Nonetheless, when considering this issue, counsel for the Appellant submitted that there are two relevant considerations that must be borne in mind:
(i)first, that the learned registrar programmed the matter through to a hearing of the appeal; and
(ii)secondly, most of the costs of the appeal have already been incurred by dint of the fact that the parties have prepared detailed written submissions addressing the (sole) ground of the appeal.
(b)Secondly, that the intention of legislature when enacting s 43(3) of the Act was not, or alternatively was unlikely to have been, that where the costs of the appeal exceed the value of the claim, then the appeal should automatically be struck out. In making this submission counsel for the Appellant referred to the decision in Defendi v Eden Hill Plasterers [2008] WASCA 269 [3] (Defendi), where Martin CJ stated as follows:
As Miller JA points out, there is nothing unusual about the nature of this case. The evidence suggests that the likely costs of the appeal to the parties will be within the ordinary range which one would expect for an appeal to this court. As the amount of the claim slightly exceeds the current jurisdiction of the Magistrates Court, if the likely costs to the parties to this appeal were held to be disproportionate to the amount of the claim, it would mean that virtually every appeal to this court would be dismissed under s 43(3) of the Act. It seems unlikely that this was the intention of the legislature at the time it provided the right of appeal from the District Court to this court.
(emphasis added)
(c)Thirdly, the manner in which the appeal is run, and in this regard counsel for the Appellant submitted, in effect, that where numerous and ill‑considered grounds of appeal are advanced then there was 'no doubt' that the court should exercise its discretion to strike out the appeal. However, in cases where the appellant is disciplined and advances the bare minimum to ensure victory, then without more, the court should not exercise its discretion to strike out an appeal. In making this submission counsel for the Appellant:
(i)referred to the decision in Defendi, where Martin CJ discussed the principle of proportionality. In this regard his Martin CJ stated as follows at [7]:
The principle of proportionality should be borne steadfastly in mind by all the civil courts of the state. The powers available to those courts, under the various Rules of Court, construed by reference to the principle that Rules of Court are to be interpreted and administered in such a way as to enable a court to administer justice, and not in such a way as might result in the court becoming an instrument of injustice … are quite sufficient to enable the principle of proportionality to be observed. The days when a party could occupy as much time at trial as it wished, by calling as many witnesses as it wished, and cross‑examining as long as it wished, are gone. The courts will and must take control of the pre-trial and trial processes to ensure that each case before the court is resolved as quickly, efficiently and inexpensively as is consistent with the interest of justice in that case.
(ii)submitted further, in effect, that in this case:
(A)the Appellant had been disciplined and was only advancing a single ground of appeal which is narrow in compass;
(B)the merits of the appeal should therefore be examined (and counsel for the Appellant invited the court to consider the Appellant's written submissions filed 20 August 2024 concerning those merits); and
(C)When considering the merits, the court should, in effect, disregard certain matters being relied upon by the Respondent in defence of the appeal (matters which go to whether the issue of possessory title or bailment was agitated before the learned magistrate) because on a proper examination of that which transpired before the learned magistrate, there is no basis to those matters. In making this submission counsel for the Appellant referred to certain passages about the role of pleadings and the conduct of the proceedings from the decision in Summit Rural (WA) Pty Ltd v Lenane Holdings Pty Ltd [2024] WASCA 122 (Summit Rural). For completeness, it is appropriate that I set out certain passages from Summit Rural (and I do so mindful of the fact that it is unnecessary to discuss the underlying facts of that matter):
132An appellant is bound by the conduct of his or her case at trial. In University of Wollongong v Metwally [No 2], Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said (483):
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. (emphasis added)
133The substance of that statement was reiterated in Coulton v Holcombe by Gibbs CJ, Wilson, Brennan and Dawson JJ (7 ‑ 8):
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd ((1950) 81 CLR 418, at 438); Bloemen v The Commonwealth ((1975) 49 ALJR 219). (emphasis added)
134The High Court returned to this issue in Water Board v Moustakas. Mason CJ, Wilson, Brennan and Dawson JJ emphasised that a point cannot be raised for the first time on appeal 'when it could possibly have been met' by calling evidence at the trial (497) (emphasis added). Their Honours allowed only these limited exceptions (497):
Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied (See Suttor v Gundowda Pty Ltd (1950), 81 CLR 418, at p 438; University of Wollongong v Metwally [No 2] (1985), 59 ALJR 481, at p 483; 60 ALR 68, at p 71; Coulton v Holcombe (1986), 162 CLR 1, at pp 7 ‑ 8; O'Brien v Komesaroff (1982), 150 CLR 310, at p 319)).
135Their Honours then explained the correct approach to deciding whether or not a point sought to be advanced on appeal was raised at trial (497):
In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged (See Dare v Pulham (1982) 148 CLR 658). In Leotta v Public Transport Commission (NSW) ((1976) 50 ALJR 666, at p 668; 9 ALR 437, at p 446), a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (NSW) ((1978) 52 ALJR 291, at p 294; 18 ALR 147, at pp 151 ‑ 152), Jacobs J, with whom the other members of the Court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularizing the existing issue had emerged at the trial and had been litigated.
It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal.
136In Whisprun Pty Ltd v Dixon, Gleeson CJ, McHugh and Gummow JJ restated the applicable principles and elaborated upon their rationale [51] ‑ [52]:
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial (University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 8 ‑ 9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas (1988) 180 CLR 491 at 496 ‑ 497; cf R v Birks (1990) 19 NSWLR 677 at 683 ‑ 685). Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross‑examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 ‑ 646). Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs. [original emphasis]
As Water Board v Moustakas ((1988) 180 CLR 491 at 498) makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings' (Water Board v Moustakas (1988) 180 CLR 491 at 497).
(emphasis added)
(citations omitted)
(D)Lastly, the impacts that the appeal would have on the parties to the appeal, and in this regard counsel for the Appellant submitted that there were two such impacts:
(i)first, a hearing of the appeal would extinguish the basis of the Respondent's separate appeal to this court in relation to the decision of the learned magistrate not to award costs of the Magistrates Court Proceedings to the Respondent; and
(ii)secondly, a hearing of the appeal would enable the Appellant to make an application in respect of its own costs of the Magistrates Court Proceedings.
In making this submission, counsel for the Appellant conceded, appropriately that the sunk costs of the trial are irrelevant to the exercise of the court's discretion under s 43(3) of the Act. So much is clear from the various authorities, including, for example, Miller. However, counsel for the Appellant submitted, in effect, that given the exercise of the discretion under s 43(3) of the Act is not only unfettered but also extends to the justice of the case, the financial impact on the Appellant in the event of a successful appeal is a relevant consideration to be taken into account (and counsel for the Appellant indicated that the costs of the Magistrates Court Proceedings were in the vicinity of $60,000 or more).

In any event, ultimately, counsel for the Appellant submitted further that when the above four factors are taken into account in the exercise of the court's discretion under s 43(3) of the Act, that discretion should favour the dismissal of the Strike Out Application.
As to the first matter raised by counsel for the Appellant, it is of course the case that the learned registrar programmed the hearing of the Strike Out Application and appeal proper to be heard at the same time. However, that programming was in the context of the submissions made on behalf of the Appellant as referred to at [21]. On a closer examination of those submissions, the Strike Out Application is certainly not one where the chances of success were slim, and nor was it an appeal concerning an amount at the upper limit of the jurisdictional threshold limit. It may have been presumed to have been an appeal on a narrow issue, but it is certainly one which does not appear, at least now, to be particularly straightforward. Costs have clearly been incurred to date by the parties in the appeal, however a significant amount of those (sunk) costs could have been avoided had the parties agreed to the Strike Out Application being programmed ahead of the appeal, or for that matter had the Respondent conceded that the court's jurisdiction to strike out the appeal was enlivened under s 43(3) of the Act. Such an approach would, I suggest, have been consistent with the court's admonition in Duluxgroup. In such circumstances I do not consider that a relevant consideration in this case is that the learned registrar programmed the hearing of the Strike Out Application and the appeal proper to be heard at the same time. Furthermore, and in any event, the Appellant was on notice from the learned registrar that the appeal judge might nevertheless seek to hear and determine the Strike Out Application in the first instance, and so the Appellant could be taken as having accepted the risk of incurring (unnecessary) costs in the preparation of the appeal proper.
As to the second matter raised by counsel for the Appellant, I accept that the intention of the legislature when enacting s 43(3) of the Act was not, or alternatively, unlikely to have been, that where the costs of an appeal exceed the value of the claim, then the appeal should automatically be struck out. Indeed, that is reflective in the decision in Miller. However, as is discussed at [44(a)], where the discretion under s 43(3) of the Act is enlivened, some countervailing factor(s) or discretionary reason(s) need to be identified and accepted by the court if the discretion to strike out is not to be exercised. In this case, and with respect to counsel for the Appellant, no such factors or reasons have been identified; rather, the case is an ordinary or commonplace type of case, and one which is neither complex nor novel. It certainly does not raise any questions of legal principle, and nor is it a case of general application which would assist in the resolution of other cases in this court or the Magistrates Court.
As to the third matter raised by counsel for the Respondent, a consideration of that matter would necessitate an examination of the merits of the appeal, and of course the authorities have expressly disavowed the need for such an exercise to be carried out by a judge considering an application pursuant to s 43(3) of the Act: see [36]. In the circumstances I decline to consider the merits of the appeal.
As to the fourth matter raised by counsel for the Appellant, that seems to me to fall within the same category of mischief as a requirement to consider the merits of any appeal. In any event, s 40(4) and s 50(5) of the Act provide, in effect, that when considering any appeal this court must decide the matter on the material and evidence that was before the Magistrates Court, unless leave is granted, and that leave is only to be given in exceptional circumstances. In this case no leave has been sought. Regardless, the authorities make plain that the only relevant costs to be considered are the costs of the appeal: see for example Defendi at [14] and Miller at [23]. Furthermore, if such costs were to be factored into the discretionary exercise, then it could lead to the incursion of unnecessary costs within the Magistrates Court and, in turn, perverse outcomes when considering applications pursuant to s 43(3) of the Act.

Disposition

Against the background of that which is discussed above, the question remains as to whether judicial discretion to grant the Strike Out Application should be exercised.
Judicial discretion is exercised when a judge is granted a power under either statute or common law that requires the judge to choose between two or more different, but arguably equally valid courses of action. Indeed, discretionary decisions are those where the judge has an area of autonomy, free from strict legal rules, in which the judge can exercise his or her judgment in relation to the particular circumstances of the case. Judicial discretion has been described as 'the space … between legal rules in which legal actions may exercise choice': see Hawkins K, 'The Use of Legal Discretion: Perspectives from Law and Social Science' in Hawkins K (ed) The Uses of Discretion (1992) 11, 11. See also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 [19].
The judicial discretion that exists under s 43(3) of the Act demands consideration of the proportionate nature of the costs of the claim versus the costs of the appeal.
As stated at [2], the amount involved in the appeal is $9,226.25, and it is an amount which falls within the $10,000 minor claims threshold in the Magistrates Court.
There is no evidence before the court as to the actual costs of the appeal, however in Miller the court expressed the view even on a simple appeal where one party is represented, costs are likely to exceed $15,000. See also Rankilor [2], and Triplett [17].
In this case, each of the parties are represented by both solicitors and counsel, and so it could readily be assumed that the costs likely to be reasonably and properly incurred will exceed $30,000. In this regard I note that Item 26 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (Determination) sets out that, according to the scale, the maximum allowable rate for a senior practitioner involved in the preparation of an appeal for hearing (including preparation of appeal documents and submissions) is $5,280, whilst the maximum allowable rate for counsel on a hearing (including preparation) is $15,840. On this basis, maximum costs according to the scale for a senior practitioner and counsel would be in the vicinity of $21,000 for each party. For completeness I note that the Determination came into operation on 1 July 2024, and so before that date the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 would apply, however, under Item 26 of that earlier determination the costs which I have discussed immediately above are not materially different.
Furthermore, based on those matters advanced during the hearing of the Strike Out Application, there seems little doubt that the appeal may not be a simple one. True it is that there is only one ground of appeal (comprising two limbs) but the submissions from counsel for the Respondent concerning Summit Rural and Water Board v Moustakas (1988) 180 CLR 491 (see [47(c)]) to the effect that that question will require careful review of the pleadings, the evidence, the submissions from the parties, the conduct of the trial generally, and the transcript of the proceedings before the learned magistrate (of which there are 346 pages ‑ see Appeal Book) betray that the appeal is not a simple one.
Whilst the Court of Appeal in this State has not expressed any view as to the likely costs to the parties of an appeal which is not simple, it could readily be assumed that those costs would perhaps increase up to at least the levels (and possibly even significantly more) contemplated by the scale in the Determination. Finally, of course, a further day of hearing will need to be spent by the parties arguing the appeal.
Arithmetically then:
(a)adopting the figures in Miller, and on the basis that the appeal is a simple one, the costs of the appeal are in the vicinity of $30,000 (possibly more), and so the costs of the appeal would exceed the value of the claim by a magnitude of at least slightly greater than three times; and
(b)adopting the scale in the Determination, the costs of the appeal may be in the vicinity of $40,000, and so the costs of the appeal would exceed the value of the claim by a magnitude of at least slightly greater than four times.
Given that the appeal may not be a simple one, the costs of the appeal may even exceed the scale in the Determination, bearing in mind that the Determination does not apply to the remuneration of law practices based on a written agreement as to costs under the Legal Profession Act2008 (WA): see cl 3(c) of the Determination.
Whilst it would not be appropriate to adopt a simple arithmetical calculation of the nature set out in [60] and [61] in an attempt to fulfil the exercise of the court's judicial discretion, what the arithmetic does do, is that it reveals that if the appeal were to be struck out pursuant to s 43(3) of the Act, that outcome would not be inconsistent with the order of magnitude that exists in other cases where the discretion had been exercised to strike out the appeal.
In the final analysis, aside from the costs of the appeal being disproportionate to the amount of the claim, there is nothing before the court to suggest or evidence that some countervailing factor(s) or discretionary reason(s) exists so as to warrant not exercising the discretion to strike out the appeal pursuant to s 43(3) of the Act. Furthermore, the justice of the case does not require that the discretion to strike out the appeal not be exercised.

Conclusion

In the circumstances, and for all the reasons stated above, I:
(a)grant the Strike Out Application; and otherwise
(b)dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KT
Associate to Judge Egan
29 NOVEMBER 2024