Defendi v Gatto

[2011] WADC 72

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   DEFENDI -v- GATTO [2011] WADC 72

CORAM:   SCOTT DCJ

HEARD:   4 MAY 2011

DELIVERED          :   10 MAY 2011

FILE NO/S:   APP 92 of 2010

BETWEEN:   SILVANO DEFENDI

Appellant

AND

ROBERTO GATTO
Respondent

Catchwords:

Magistrate dismissing minor claim without claimant's appearance ­ Denial of natural justice

Legislation:

Magistrates Court (Civil Proceedings) Act 2004, s 15, s 17(3)

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     Not applicable

Respondent:     Not applicable

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

Nil

1. SCOTT DCJ:  At the hearing of this appeal on 4 May 2011 I allowed the appeal and made some ancillary orders.  I said that because the respondent was not present and because the appeal raised an assertion that the appellant was denied natural justice, I would publish my reasons.

2. In Fremantle Magistrates Court action FR 419/10, the appellant as claimant claimed the sum of $8,220 against the respondent as defendant.  The matter was a Minor Case in that court.

3. On 17 November 2010 his Honour, Magistrate Jones, in the absence of the appellant, dismissed the appellant's claim.  It is against that judgment that the appellant appeals to this court.

4. In his notice of appeal dated 6 December 2010, the appellant specified the grounds of his appeal to be that he was not given the opportunity to participate at the hearing on 17 November 2010 and that he had advised the court that he would not be available on that day.

5. During the course of a directions hearing on 22 February 2011, Deputy Registrar Harman made an order that any application by the appellant to amend his notice of appeal was to be made within 14 days.  No application was made.  However, it was evident to me from a discussion I had with the appellant through the interpreter at the hearing of this appeal that the appellant was likely not to have comprehended what he was to do in that regard.

6. I explained to him that because this was a minor case, the only bases upon which there could be an appeal to this court were on the grounds, relevantly, that he was denied natural justice and/or that the judgment of his Honour was beyond the Magistrates Court's jurisdiction.

7. The appellant, by his interpreter, told me that he wished to include both of those grounds.

8. It was my view that it was appropriate to allow him to do so and as a consequence, I made an order extending the time within which, by the order of the Deputy Registrar, his application to amend could be made, took his oral application and made the appropriate amendment to specify those grounds of appeal.

History

1. It is relevant so as to put into context the determination of his Honour on 17 November 2010 to recite some details of the history between the parties:

   •In Midland Magistrates Court action MI 622 of 2008 the appellant sued the respondent for the sum of €4,200 (plus interest) alleged to have been due by the respondent to Aqua Chiara, an Italian entity.

   •The appellant alleged that Water Empire, an entity controlled by his brother, had paid this sum to Aqua Chiara at the respondent's request by way of a loan to him and that the appellant was authorised to recover that sum on behalf of Water Empire.

   •In MI 622 of 2008, her Honour, Magistrate Campione dismissed the appellant's claim for that sum, finding that the party entitled to make the claim was Water Empire.  Water Empire was registered in Italy.  The status of that entity (ie, as a registered corporation or other body) is not clear.

   •Her Honour found that the appellant did not have standing to bring that claim.

   •Included in the Magistrates Court file in FR 419 of 2010 is a document on a Water Empire letterhead entitled 'Private Agreement for the Transfer of a Private Company' signed by Davide Defendi and Silvano Defendi purporting to be a transfer to the appellant of the assets and liabilities of that entity which is there referred to as a company.  This document was dated 22 February 2010 and was discovered by the appellant.

   •FR 419/10 is a Minor Case which was filed on 6 April 2010.  The claim in that action against the respondent was for inter alia the same sum (plus interest) as the appellant claimed in MI 622 of 2008.

   •The appellant filed a statement of minor case claim dated 19 July 2010 in FR 419/10 in which he alleged that he was, as the sole owner of Water Empire, entitled to make this claim.

   •On 13 October 2010 the respondent made application for leave to be legally represented in the action.  This application was listed for hearing on 17 November 2010.

   •The appellant advised the court prior to 13 October 2010 that he was in Italy and would not be at his address between 25 September 2010 and 17 November 2010 inclusive.

   •Nonetheless, the respondent's application was listed for 17 November 2010.  On that day the respondent appeared but the appellant did not.

2. At the hearing on 17 November 2010, his Honour informed the respondent that he proposed to deal with not only the respondent's application for legal representation but the appellant's claim in the action, citing s 15 and s 17 of the Magistrates Court (Civil Proceedings) Act 2004 (Magistrates Court Act) pursuant to which his Honour considered it was appropriate to deal with the appellant's claim on the court's own initiative.

3. His Honour then made a determination that the court had no jurisdiction to deal with the appellant's claim because it had already been dealt with by her Honour in MI 622 of 2008.  In the event his Honour dismissed the appellant's claim in FR 419/10.

4. Section 15 of the Magistrates Court Act provides, relevantly, as follows:

   15(1)The Court may exercise its powers on the application of a party or on its own initiative unless this Act or the rules of court or another written law provides otherwise.

   (2)The Court may make an order on its own initiative with or without ­

   (a)allowing the parties to make submissions; or

   (b)hearing the parties.

   …

5. Section 17 of that Act provides, relevantly, as follows:

   17(1)The Court may strike out all or a part of a case statement if ­

   (a)any claim in it is outside the Court's jurisdiction;

   (d)it is an abuse of the Court's process .

   (2)If the Court strikes out all of a case statement the Court may give judgment accordingly without a trial.

   (3)The Court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.

6. Whilst it may have been possible for the appellant to bring an application and seek an order to set aside the judgment pursuant to s 17(3) that opportunity does not preclude an appeal to this court. That is particularly so, given that his Honour relied on s 15 to found the basis upon which he considered he had power to dismiss the claim without the appellant being afforded the opportunity to be heard.

7. In my view the learned magistrate was in error when he made a determination that the appellant's claim in FR 419/10 was outside the jurisdiction of the Fremantle Magistrates Court.

8. At the time at which her Honour gave judgment in MI 622 of 2008, there had been no purported transfer and assignment to the appellant of the assets of Water Empire to which the appellant made reference in the statement of minor case claim filed 19 July 2010.  To that end, if there had been an effective transfer and assignment that may have constituted an assignment of any debt then due by the respondent to Water Empire.  If that were so, then the capacity of the appellant to maintain the claim in FR 419/10 would not be the same as his standing when the earlier proceedings were determined.  This was a live issue before the court in FR 419/10.

9. The appellant's claim was within the jurisdiction of the court.

10. Section 15 of the Magistrates Court Act does entitle the court to make an order on its own initiative without hearing the parties.

11. The court must however, in exercising its powers, afford the parties to the litigation procedural fairness (natural justice).

12. The matter which was listed to be heard on 17 November 2010 was the respondent's application to be legally represented in the action.  The appellant did not appear and the reason for his unavailability was foreshadowed in earlier correspondence from him to the court.

13. The appellant did not know that his Honour intended to make a summary determination with respect to his claim.

14. The appellant ought to have been given the opportunity to be heard as to why his claim should not be summarily dismissed.

15. There were issues raised in the appellant's claim which necessitated evidence being adduced as to inter alia the basis upon which it was said that the respondent was indebted to Water Empire and whether there had been an effective assignment of any debt to the appellant.

16. To deal with the appellant's claim in this summary way in his absence denied him natural justice.

17. I do not need to deal with the ground of appeal as to whether his Honour acted outside the jurisdiction of the court, having determined there to have been a denial of natural justice.

18. In the circumstances the appeal should be allowed and the judgment of his Honour quashed.

19. From the transcript of the proceedings on 17 November 2010, there is in my view a real risk that his Honour has formed a view of the appellant's claim, such that it would not be appropriate for him to be the magistrate presiding over the trial of this action.  The tenor of his Honour's comments give rise to that conclusion and another magistrate ought in my view preside at any trial.