Ex Parte
[2019] WASC 358
•4 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: EX PARTE SNOOK [2019] WASC 358
CORAM: SMITH J
HEARD: 2 OCTOBER 2019
DELIVERED : 4 OCTOBER 2019
FILE NO/S: CIV 2699 of 2019
EX PARTE
PIPPA SNOOK
Plaintiff
Catchwords:
Application for review under s 36 of the Magistrates Court Act 2004 (WA) - Application for judicial review - Application to adjourn hearing of applications to set aside default judgment refused by a Magistrates Court - Natural justice - No jurisdictional error demonstrated
Legislation:
Magistrates Court Act 2004 (WA), s 36
Rules of the Supreme Court 1971 (WA), O 56A
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
Solicitors:
| Plaintiff | : | In person |
Case(s) referred to in decision(s):
ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd [2000] WASC 214
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Arabzadeh v Wasim [2018] TASSC 30
Ashwin v Housing Authority [2019] WASC 144
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; (2011) 83 NSWLR 23
Certain Children v Minister for Families and Children [No 2] [2017] VSC 251; (2017) 266 A Crim R 152
Defendi v Szigligeti [2019] WASCA 115
Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority [2009] VSCA 171; (2009) 25 VR 290
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859; (2002) 122 FCR 78
Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174
Kazolis v Registrar of Firearms [2018] ACTSC 89; (2018) 331 FLR 395
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41
Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] [2004] FCA 107
Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22; (2001) 206 CLR 57
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360
Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422
Shilkin v Taylor [2011] WASCA 255
Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291
South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378
Starrs v Retravision (WA) Ltd [2012] WASCA 67
Taciak v Lyons [2012] WADC 61
Telstra Corporation Ltd v Smith [2008] FCA 1859
WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93
SMITH J:
1.0 The application
The court has before it a notice of originating motion, filed by Ms Pippa Snook on 25 September 2019, for review orders, pursuant to s 36 of the Magistrates Court Act 2004 (WA) and O 56A of the Rules of the Supreme Court 1971 (WA). The relief sought can be distilled as follows:
1.A review order of the decision of Magistrate Hawkins on 1 August 2019 not to grant an adjournment for which Ms Snook applied due to urgent, partly unforeseen, circumstances and overturn of Magistrate Hawkins' orders, on grounds that the magistrate failed to appreciate the life and death gravitas of what was occurring at home.
2.In the alternative, a review order of a refusal by Magistrate Benn on 12 September 2019 to set aside the decision of Magistrate Hawkins on grounds that he did not have power to do so.
3.In the alternative, a review order of the failure by Magistrate Hawkins to address Ms Snook's application for orders, in particular, an order to require production into court of a tape from the defence which is 'crucial to [Ms Snook's] application', which the defendants admit to having by text.
4.In the alternative, a determination of point of law as to where an appeal (from the decision of Magistrate Hawkins on 1 August 2019) lies on the grounds of rules of natural justice.
2.0 Background
Ms Snook filed a minor case claim in September 2018[1] in the Joondalup Magistrates Court (Magistrates Court) against Mitchell Nikolovski, Jackie Nikolovski and Will Maginness (the defendants) in JO minor 2123 of 2018.
[1] ts 1 August 2019, 10, 21.
It appears, the claim made by Ms Snook is that:[2]
(a)she entered into a contract with Mr Maginness for the use of 'Copper' (a pedigree male Australian Shepherd dog) to mate with one of her dogs (Ms Snook is a dog breeder);
(b)a pup was born and one of Mr Maginness' friends, Mr Nikolovski (who resides in the Eastern States) was interested in purchasing a pup (known as Max);
(c)Mr Nikolovski paid a non‑refundable deposit for the pup;
(d)the pup was unfit to travel to the Eastern States on the day Max was due to be picked up; and
(e)Ms Snook would not let the pup leave her possession and incurred (what she says were unnecessary) costs in ascertaining whether the pup was fit to travel.
[2] ts 1 August 2019, 18; affidavit of Pippa Snook sworn 25 September 2019 [3].
Judgment in default of the filing of defences was given by the Magistrates Court on 3 April 2019.
Subsequently, the defendants lodged applications to set aside the default judgment. Although it is not entirely clear from the documents filed in this court, it appears that the applications to set aside had been set down for hearing on 20 June 2019, but, on that day, the applications were adjourned to a hearing to 1 August 2019.[3] At the time the case was adjourned, it appears Ms Snook was present in court and agreed to the applications to set aside the judgment in default being relisted on that day.
[3] ts 1 August 2019, 3.
On 20 June 2019, orders were made by the Magistrates Court:[4]
(a)allowing Ms Snook to lodge further documents in respect of the applications to set aside the default judgment; and
(b)requiring the registrar to provide Ms Snook with copies of the form 23 applications lodged by the Nikolovskis on 4 and 12 June 2019.
[4] ts 1 August 2019, 3.
On 18 July 2019, Ms Snook made a written application to the Magistrates Court to adjourn, the hearing of the applications to set aside, on 1 August 2019 on grounds that, amongst other things:
(a)she had not received a number of the defendant's documents She was supplied with some documents by the court on 20 June 2019 but due to an illness she had not had an opportunity to assess those documents and to obtain documentary evidence to defend the applications;
(b)one of her chief witnesses was not available to appear in court on 1 August 2019;
(c)she had an important issue (to attend to) on 1 August 2019, information of which she did not wish to disclose to the defendants but was prepared to disclose to the court; and
(d)she had made a request to Telstra on 20 June 2019 for telephone and text records of her conversations with the defendants and had yet to obtain those records.
In her application, lodged on 18 July 2019, Ms Snook also indicated that she was willing to enter into mediation to resolve the issues in dispute.
On 31 July 2019, Ms Snook filed a form 23 application seeking an order for an adjournment of the hearing of 1 August 2019, and an affidavit in support of her application, sworn on 31 July 2019, in which she sought the following orders:
1.Her affidavits and submissions of 18 July 2019 and 31 July 2019 be 'taken onto the court record, together with all prior submissions/affidavit'.
2.Her applications of 18 July 2019 and 31 July 2019 for an adjournment be granted and 21 days leave be granted to lodge materials in defence of the Nikolovskis' affidavits of 4 and 12 June 2019, and (an order be made to allow) time to serve the Nikolovskis and Mr Maginness by post.
3.An order that Mr Nikolovski and/or Mr Maginness produce to court, or alternatively that she summons to court, a tape referred to in her affidavits of 18 July 2019 and 31 July 2019 of a conversation between Mr Maginness, a Mr Paul Crew and herself and an order granting leave to have the tape forensically examined at the defendants' costs for alterations.
4.Leave to summon witnesses if it should prove necessary.
5.An order that the Nikolovskis 'revamp', swear and refile their affidavits and statements of 4 and 12 June 2019 in the correct format.
6.An order that the Nikolovskis and Mr Maginness file sworn affidavits for service.
7.An order for leave to submit, to the court, extensive texts and photographs in support of her applications.
8.A direction to Mr Maginness to reply to her letters of conciliation dated 14 February 2019 and 10 March 2019.
In Ms Snook's affidavit in support sworn on 31 July 2019, she reiterated the matters stated in her application dated 18 July 2019 and:
(a)annexed a medical certificate from a Dr Heather Birk stating:
THIS IS TO CERTIFY THAT
Ms Pippa Snook
has been unwell since approximately 5 June, 2019, having been reviewed at our surgery multiple times between then and now.
She has been UNFIT TO attend to her court requirements over this time, and is expected to be unwell for another 2‑4 weeks
This Certificate was completed on 24 July 2019
Dr Heather Birk
(b)she had not received a complete set of court papers filed by one of the defendants, Mr Nikolovski, from the Magistrates Court until 30 July 2019;
(c)that given the serious allegations in the defences she would need to obtain further affidavit evidence from veterinarians who treated the pup the subject of the minor case claims;
(d)she had only been able to draft provisional responses to the statements of defence; and
(e)she was still awaiting the receipt of records from Telstra.
Ms Snook also sent an email to the court for the attention of the presiding magistrate. In the email, Ms Snook identified the personal issues (which she did not wish to disclose to the defendants). Ms Snook stated that she was an experienced dog breeder and was required to be present at the expected birth of puppies on 1 August 2019 as a midwife as the particular breed of dog could not safely give birth without her assistance. She stated that without her presence at least some of the puppies would die.
On 1 August 2019, Magistrate Hawkins refused Ms Snook's application for adjournment and set aside the default judgment. At the conclusion of the hearing, her Honour made the following general order:
25 - GENERAL ORDER
BEFORE THE COURT ON 01 August 2019
1.The Claimant's Form 23 application dated 31 July 2019 seeking an adjournment is dismissed.
2.Upon the Form 23 applications lodged by the Defendants seeking to set aside Default Judgment, it is ordered that the Judgment dated 3 April 2019 is hereby set aside.
3.As a result, the application to assess damages is dismissed.
4.The Defendants shall lodge and serve upon the Claimant any Statement of Defence upon the Claimant and any counterclaim by 29 August 2019.
5.That upon the lodging of the Statements of Defence or Counterclaim, the matter be listed for a Pre-Trial Conference before the Registrar on a date to be advised and that at any Pre Trial Conference, Jackie and Mitchell Nickolovski be entitled to appear by audio link.
6.That the Claimant shall not lodge and serve any further documents with the Court unless required pursuant to an order of the Court or with leave of the court.
On 8 August 2019, Ms Snook filed an application in the Magistrates Court to set aside or vary the orders made by Magistrate Hawkins on 1 August 2019.
The application was listed before Magistrate Benn on 12 September 2019. At the hearing, Magistrate Benn informed Ms Snook that he did not have jurisdiction to set aside an order made by another magistrate and indicated to Ms Snook that if she was 'unhappy with the decision' she needed to file an appeal in the District Court.[5]
[5] ts 12 September 2019, 2 ‑ 3.
3.0 Legal principles relating to s 36 of the Magistrates Court Act - judicial review
In Ashwin v Housing Authority, I recently set out the principles that apply to the court when considering whether to grant an application for a review order and the limits of the court when engaged in considering an application for judicial review pursuant to s 36 of the Magistrates Court Act and O 56A of the Rules of the Supreme Court as follows.[6]
[6] Ashwin v Housing Authority [2019] WASC 144 [3] ‑ [10].
Section 36 of the Magistrates Court Act 2004 (WA) provides for a statutory alternative to common law judicial review which is intended to free the court from the technical requirements of the prerogative writs of prohibition, mandamus, and certiorari.
To grant an application for a review order, made pursuant to s 36 of the Magistrates Court Act and O 56A of the Rules of the Supreme Court 1971 (WA), the court must be satisfied that the application raises an arguable case that jurisdictional error can be established. That is, the court must be satisfied that the case has reasonable prospects of success.
An application under s 36 is concerned only with the legality of decisions, not the merits. Justice Beech clearly explained this point in Re Gluestein; Ex parte Anthony, as follows:
'An application under s 36 is a statutory form of judicial review. Like common law proceedings for judicial review, proceedings under s 36 are concerned with the legality of decisions, not with the merits of decisions. Where, as here, the applicant for relief contends that the orders of the Magistrates Court were made without jurisdiction, the primary relief that flows from such a conclusion is that the order be set aside. If successful, a review application results in a rehearing of the application the subject of the original decision. The court does not make the decision, or make other orders in place of the orders set aside. A court engaged in judicial review does not have a general power to make orders aimed at remedying any injustice that flowed from things done as a consequence of, or in reliance on, the impugned decision.'
The court is empowered by s 36(4)(c) to grant any relief or remedy that 'could have been granted by way of prohibition, mandamus and certiorari'. The provision is intended to preserve the substantive law of judicial review, which is applicable to applications under s 36 of the Act.
Relief by the court can only be granted if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.
Jurisdictional error refers to a failure to comply with one or more statutory pre-conditions or conditions, to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.
To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction. That is, the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks the power to do.
In Kirk v Industrial Court of New South Wales, the plurality observed that it is not possible to mark the metes and bounds of jurisdictional error. Their Honours did, however, refer at [71] to the categories outlined by Professor Mark Aronson in his paper 'Jurisdictional Error Without The [T]ears'. In summary, those categories are:
(a)a mistaken assertion or denial of the very existence of jurisdiction;
(b)a misapprehension or disregard of the nature or limits of the decision maker's functions or powers;
(c)acting wholly or partly outside the general area of the decision maker's jurisdiction, by entertaining issues or making the types of decisions or orders that are forbidden under any circumstance (for example, a civil court trying a criminal charge);
(d)acting on a mistaken assumption or opinion as to the existence of a jurisdictional fact or other requirement when the relevant Act makes the validity of the decision-makers acts contingent on the actual or objective existence of those things, rather than on the decision-maker's subjective opinion;
(e)disregarding a relevant consideration which the Act required to be considered or paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute preconditions to the validity of the decision-maker's act or decision;
(f)misconstruing the decision-maker's Act in such a way as to misconceive the nature of the function being performed or the extent of the decision-maker's powers;
(g)acting in bad faith; and
(h)breaching (the hearing or bias rules of) natural justice. (footnotes omitted)
4.0 No jurisdiction of the Magistrates Court lies to set aside or hear an appeal from a decision of a magistrate in minor case claim
Magistrate Benn correctly stated the law when he informed Ms Snook that he has no jurisdiction to set aside a decision of another magistrate.
The Magistrates Court is an inferior court of record. It has no inherent jurisdiction. Its jurisdiction is limited to its express statutory powers.[7]
[7] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 15 ‑ 16 (Dawson J).
There is no provision in the Magistrates Court Act 2004 (WA) or the Magistrates Court (Civil Proceedings) Act 2004 (WA) which empowers a magistrate to hear an appeal against an order of a magistrate or set aside a judgment made by a magistrate.
An appeal to, or a review by, a magistrate only lies from some decisions of a registrar.[8]
5.0 Jurisdiction of the District Court to hear an appeal against a decision in a minor case claim - no appeal lies against an order in the course of proceedings in a minor case claim
[8] Magistrates Court Act 2004 (WA) s 29 and Magistrates Court (Civil Proceedings) Act 2004 s 48(o).
The District Court is only empowered to hear appeals from a decision of a magistrate in minor case matters against a judgment of the Magistrates Court in certain circumstances.
Section 32 of the Magistrates Court (Civil Proceedings) Act provides:
32. Appeals
(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
(b)if the Court was not constituted by a magistrate ‑ the party may appeal to a magistrate under and subject to the rules of court and this section.
(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.
(4)A magistrate who deals with an appeal under this section against a judgment may ‑
(a)confirm, vary or set aside all or a part of the judgment;
(b)give any judgment and make any order that it could have given or made in, or order a new trial of, the minor case;
(c)make an order as to the costs of the appeal;
(d)make any orders that are necessary as a result of other orders it has made. (emphasis added)
The order made by Magistrate Hawkins on 1 July 2019 is not a 'judgment', it is an order made in the course of proceedings in a minor case.[9]
[9] See Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 [18] ‑ [19].
Consequently, the obiter view expressed to Ms Snook by Magistrate Benn, that it was open to Ms Snook to file an appeal to the District Court, was an error. However, this error cannot properly be characterised as a jurisdictional error, as his Honour properly found that he had no jurisdiction to hear or determine Ms Snook's application to set aside or vary the orders made by Magistrate Hawkins on 1 August 2019.
6.0 Is there an arguable case for judicial review of Magistrate Hawkins' decision(s) on 1 August 2019?
For reasons that follow, the answer to this question is no.
In her application before this court, Ms Snook claims that the decision of Magistrate Hawkins to refuse her application for an adjournment, to refuse her application for orders, and to set aside the default judgment was unfair, and by failing to have proper regard to all of the matters that she had put before the magistrate she was denied natural justice.
Having carefully read all of the documentary material Ms Snook lodged in the Magistrates Court prior to 1 August 2019 in support of her applications and the transcript of proceedings before Magistrate Hawkins on 1 August 2019, I am not satisfied that Ms Snook is able to make out an arguable case of jurisdictional error. That is, I am not satisfied that an argument that jurisdictional error was made, on the grounds that Ms Snook was denied natural justice or otherwise, has a reasonable prospect of success.
6.1 Relevant principles relating to natural justice
The requirement of a court or a tribunal to accord natural justice includes an obligation to accord procedural fairness. The principles of procedural fairness require that a party be given an opportunity to present their case and be heard (the hearing rule).
The requirements of procedural fairness are not fixed or immutable.[10] Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[11] As such, whether, for example, the failure or refusal to adjourn a hearing amounts to a denial of procedural fairness will depend upon the particular circumstances of the case.[12]
[10] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156]; Defendi v Szigligeti [2019] WASCA 115 [48].
[11] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ) [48] (McHugh & Gummow JJ); Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] [2004] FCA 107 [28] (French J); Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291 [30] (Maxwell P, Warren CJ agreeing); Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51]; Defendi v Szigligeti [2019] WASCA 115 [48]. See, also, Kazolis v Registrar of Firearms [2018] ACTSC 89; (2018) 331 FLR 395 [50] and cases there cited.
[12] See Arabzadeh v Wasim [2018] TASSC 30 [10] (Pearce J).
Cases have acknowledged that the content of procedural fairness is affected by the 'nature' of the 'decision'[13] of which review is sought.[14] This includes the consequences or effect of the 'decision'.
[13] Or 'inquiry' or 'power'.
[14] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J); WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93 [45] (Nicholson J); Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174 [31] (Maxwell P, Eames and Nettle JJA agreeing); Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422 [12] (Dixon J); Arabzadeh v Wasim [2018] TASSC 30 [10] (Pearce J).
The Court of Appeal in Defendi v Szigligeti recently explained the hearing rule as it applies to the Magistrates Court in hearing civil claims and made the point that the right to be heard does not require in every case that a person have the right to be heard orally. In a judgment of the court, their Honours stated:[15]
[15] Defendi v Szigligeti [2019] WASCA 115 [46] ‑ [54].
[T]o say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. The second step is what is critical in most cases.
Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.
… The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.
In light of these principles, we outline the following relevant features of the legislation and rules governing the procedures of the Magistrates Court.
Section 13 of the [Magistrates Court (Civil Proceedings) Act] provides, relevantly, that in dealing with cases, the court is to ensure that cases are dealt with justly, which includes ensuring that cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible.
Section 15 of the [Magistrates Court (Civil Proceedings) Act] provides as follows:
15. Court may act on its own initiative
(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.
(3)If the Court decides to allow the parties to make submissions before making an order on its own initiative, it must notify each party likely to be affected by the order of how and when the submissions are to be made.
(4)If the Court decides to hear the parties before making an order on its own initiative, it must notify each party likely to be affected by the order of the time and place of the hearing.
(emphasis added)
By s 16 of the [Magistrates Court (Civil Proceedings) Act], for the purpose of controlling and managing a case, the court has power to take any other action or make any other order for the purpose of complying with s 13.
By r 28B of the Magistrates Court (General) Rules 2005 (WA) (the MCG Rules), the court, on the application of a party or on its own initiative, may deal with a civil case, or an aspect of a civil case, in chambers.
It is no doubt the case that a magistrate is required to exercise the above powers in a manner which ensures that the proceedings are conducted in a fair manner, and that the parties to those proceedings have a sufficient opportunity to present their respective cases. However, these provisions create substantial obstacles for a contention that the Magistrates Court is required in every case to provide parties with the opportunity to be heard orally. By r 28B of the MCG Rules and s 15(2) of the [Magistrates Court (Civil Proceedings) Act], a magistrate may deal with a case in chambers, and the court may act on its own initiative without hearing from the parties. If the court decides to allow the parties to make submissions, the court can determine, and must then notify the parties of, how and when the submissions are to be made. As explained below, in this case the magistrate so decided, and notified the parties as required.
In Brennan v New South Wales Land and Housing Corporation, Giles JA (with whom Handley JA substantially agreed) observed:[16]
There was discussion in the course of the hearing of the appeal as to whether the content of procedural fairness might be affected by the circumstances of the particular case. Although there are statements in the authorities which might be read as supporting such a view, in principle, the requirements of procedural fairness are identified as a matter of law depending upon the institutional setting in which decision-making is to operate, the relevant statutory scheme, the subject matter of the decision and, as part of that analysis, the seriousness of the potential consequences of an adverse decision.
[16] Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; (2011) 83 NSWLR 23 [63].
In Minister for Immigration and Ethnic Affairs v Pochi, Deane J said:[17]
What the law requires in the discharge of a quasi-judicial function is judicial fairness. … What is fair in a given situation depends upon the circumstances', (per Kitto J, Mobil Oil Australia Pty Ltd v FC of T (1963) 113 CLR 475 at 504). In the forefront of the relevant circumstances lie the nature of the decision which the statutory tribunal is authorised to make or review and the effect that that decision may have on the person affected by it (see Durayappah v Fernando [1967] 2 AC 337 at 349).
[17] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41, 64, 686.
In Gribbles Pathology (Vic) Pty Ltd v Cassidy, Weinberg J said:[18]
It is well established that the seriousness of a decision for an affected individual is one of the main considerations determining the application of procedural fairness. Generally speaking, the requirements of procedural fairness will be heightened in proportion to the gravity of the consequences involved.
[18] Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859; (2002) 122 FCR 78 [117].
In Certain Children v Minister for Families and Children [No 2], Dixon J stated that '[t]he content of procedural fairness depends on the decision being made and the rights affected by the decision'.[19]
[19] Certain Children v Minister for Families and Children [No 2] [2017] VSC 251; (2017) 266 A Crim R 152 [136].
In Telstra Corporation Ltd v Smith, Middleton J observed that, although statutory context was of central importance in determining the content of procedural fairness, undoubtedly, the consequences of any particular decision upon a person are important.[20]
[20] Telstra Corporation Ltd v Smith [2008] FCA 1859 [50] ‑ [51].
Cases have also considered whether the preliminary or final nature of the 'decision' affects the right to be awarded, or content of, procedural fairness.
In Minister for Immigration and Multicultural Affairs v Miah, McHugh J considered an argument that the requirements of natural justice did not apply because a right of appeal lay from the relevant decision. In that context, his Honour identified the following as a factor that 'can often be relevant in determining whether such a right … exclude[s] or limit[s] the rules of natural justice':[21]
Nature of the original decision: preliminary or final. Natural justice requirements are less likely to attach to decisions that are preliminary in nature. Examples are decisions to lay charges or commence disciplinary proceedings. The closer a decision is to having finality and immediate consequences for the individual, however, the more likely it is that natural justice requirements apply. (footnote omitted)
[21] Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22; (2001) 206 CLR 57 [146].
In Ainsworth v Criminal Justice Commission, Mason CJ, Dawson, Toohey and Gaudron JJ held that 'where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness"'.[22] In Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority, after referring to this principle, Warren CJ, Nettle and Redlich JJA stated:[23]
As a rule, a preliminary decision which forms part of a broader decision-making process will not attract a right to be heard if the opportunity for adequate hearing is available in later stages of the process.
Of course, there are exceptions. Some preliminary decisions may lead to immediate consequences of such importance to a person affected that the decision-maker is obliged to afford the person a right to be heard before making the decision. Ainsworth v Criminal Justice Commission, Annetts v McCann and Johns v Australian Securities Commission are all examples of this kind. (footnotes omitted)
[22] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 578, citing South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, 389 (Mason CJ).
[23] Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority [2009] VSCA 171; (2009) 25 VR 290 [12] ‑ [13].
In Rowe v Stoltze, Newnes JA (with whom Pullin and Murphy JJA agreed) stated:[24]
What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. (original emphasis)
6.2 The application for an adjournment
[24] Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51].
The application for an adjournment was opposed by the defendants.[25]
[25] ts 1 August 2019, 6 ‑ 7.
It is clear from the transcript of the hearing before Magistrate Hawkins (which comprises 24 pages) that her Honour:
(a)had read all of the affidavit and documentary material Ms Snook had lodged with the Joondalup Magistrates Court in support of her application for an adjournment and the orders that she sought. It appears from the transcript that her Honour carefully summarised each of the documents that had been lodged by Ms Snook;[26]
(b)considered each of the reasons why Ms Snook sought an adjournment of the applications to set aside the default judgment and the orders sought by Ms Snook;[27]
(c)found the medical report provided by Ms Snook to be inadequate on grounds that it was lacking in specificity and did not address the criteria applied in Taciak v Lyons;[28]
(d)found that the court records indicated that the registrar of the Magistrates Court had provided to Ms Snook the entirety of all documents on the court file by 20 July 2019 or, at least, by 26 July 2019;[29]
(e)referred to the orders sought by Ms Snook to lodge detailed affidavits in response to the applications to have the default judgment set aside and that such affidavits could not be the subject of a determination of a factual dispute between the parties in an application to set aside a default judgment.[30] In particular, her Honour found that:
(i)in determining an interlocutory application it is not open to the court to determine factual disputes on affidavit material; and
(ii)all the court can consider is whether a version of facts put forward by the defaulting party which is not inherently credible and, then in the absence of anything else, if satisfied that the reason for the delay has been explained set aside the judgment in default and allow the minor case claim to proceed.[31]
[26] ts 1 August 2019, 6 ‑ 7.
[27] ts 1 August 2019, 7 ‑ 11.
[28] Taciak v Lyons [2012] WADC 61; ts 1 August 2019, 9 ‑ 10.
[29] ts 1 August 2019, 10.
[30] ts 1 August 2019, 10 ‑ 11.
[31] ts 1 August 2019, 20.
Magistrate Hawkins refused Ms Snook's application for an adjournment on grounds that:
(a)the medical certificate was inadequate;
(b)there was no cogent evidence that Ms Snook had not been provided with all court documents by 20 July or at least by 26 July 2019; and
(c)in a minor case claim the Magistrates Court is obliged to deal with matters quickly and efficiently (having noted that the case commenced in September 2018).[32]
[32] ts 1 August 2019, 9 ‑ 11.
Ms Snook complains that Magistrate Hawkins failed to have regard to and appreciate the gravity of, Ms Snook leaving a dog unattended when giving birth and that it was clear from the transcript of proceedings on 1 August 2019 that the magistrate had little regard to this important matter which was Ms Snook's principal reason for applying for an adjournment.
It is apparent, however, that Magistrate Hawkins did have regard to the fact that Ms Snook was not present in court on 1 August 2019 because she was going to be present at the birth of puppies as a midwife.[33]
[33] ts 1 August 2019, 9.
In circumstances where this information had not been disclosed by Ms Snook to the defendants, it was open to the magistrate to give little weight to this information.
In putting this information before the court Ms Snook had expressed a wish to keep this information from the defendants. In these circumstances, Magistrate Hawkins properly expressed the view that it was inappropriate for a party to lodge, or to otherwise provide, documents containing information that had not been, and would not be, provided to the other parties.[34]
[34] ts 1 August 2019, 5.
Magistrate Hawkins properly identified all of the material that had been filed and addressed each of the points raised by Ms Snook.
Ms Snook has put nothing, in her application before this court, suggesting that she intended to raise any further submissions, that she did not put in the documents she lodged prior to 1 August 2019 and which were considered and addressed by Magistrate Hawkins.
In circumstances, where all of the documentary material that Ms Snook had lodged with the Magistrates Court in support of her application for adjournment was considered by the magistrate an argument that Ms Snook was denied natural justice has no prospects of success.
6.3 The decision to set aside the default judgment and to not make the orders sought by Ms Snook
The default judgment had been entered because the defendant had not lodged their statements of defence within time.[35]
[35] ts 1 August 2019, 17.
Pursuant to s 19(3) of the Magistrates Court (Civil Proceedings) Act, the Magistrates Court is conferred with jurisdiction to set aside a judgment in default if a party does not comply with the provisions of the Magistrates Court (Civil Proceedings) Act, the rules (of the Magistrates Court) or an order or direction made by the court.
A party against which a minor case claim has been made must complete the response served with the claim and lodge it with the Magistrates Court within 14 days after the claim was served.[36] The Magistrates Court then provides a copy to the parties.[37]
[36] Magistrates Court (Minor Cases Procedure) Rules 2005 r 9(1).
[37] Magistrates Court (Minor Cases Procedure) Rules 2005 r 9(3).
Under r 7A of the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA), where a party has not lodged and served a statement of claim with its originating claim,[38] he or she must lodge and serve a statement of claim within 14 days after receiving a response indicating an intention to defend the claim.[39]
[38] As permitted by rule 7(2).
[39] Or such other time as is ordered by the registrar.
Default judgment for a minor case may be granted under provisions of pt 4 of the Magistrates Court (Minor Cases Procedure) Rules. By s 16(b) of the Magistrates Court (Minor Cases Procedure) Rules, pt 4 applies to applications for default judgment made for a failure to lodge a statement of defence in accordance with r 9A. Under r 9A(1), where a party has not previously lodged and served a statement of defence with its response,[40] it must lodge and serve a statement of defence within 14 days[41] of being served with the statement of claim.
[40] As permitted under r 9(2).
[41] Or such other time as is ordered by the registrar.
Where default judgment is regularly entered, the Magistrates Court is required to have regard to the defendant's prospects of success in relation to the action, whether there was a reasonable explanation given for the delay and the need to do justice to the parties having regard to the circumstances of the case. Additional or different considerations may apply when the default judgment was irregularly entered.
In Shilkin v Taylor[42] judgment had been entered under s 19(2) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) and the appellant sought to rely on s 19(3) to set aside the default judgment. In Shilkin, Newnes JA (with whom Pullin and Buss JJA agreed) said:[43]
The discretion of the court to set aside a default judgment under s 19(3) must be exercised judicially but it is otherwise unfettered. It is self‑evident, however, that ordinarily no purpose would be served in setting aside a default judgment if the defendant is unable to satisfy the court that the defence has a reasonable prospect of succeeding, so that the plaintiff is entitled to judgment without trial under s 18(2). It follows that an important issue on an application to set aside a default judgment under s 19(3) will be whether the defendant can satisfy the court that the defence has a reasonable prospect of succeeding.
[42] Shilkin v Taylor [2011] WASCA 255.
[43] Shilkin v Taylor [2011] WASCA 255 [25].
In Starrs v Retravision (WA) Ltd, Allanson J (with whom Pullin and Murphy JJA agreed) said:[44]
Whether judgment was regularly or irregularly entered may be significant. Under O 13 r 10 of the Rules of the Supreme Court 1971 (WA) the court may set aside or vary a judgment entered in default of appearance, on such terms as it thinks just. That discretion is not qualified: Evans v Bartlam [1937] AC 473; and see Hall v Hall [2007] WASC 198. But as a general rule, a judgment regularly entered will not be set aside unless the court is satisfied that there is a defence on the merits. That rule may be departed from in 'rare but appropriate cases': Palmer v Prince [1980] WAR 61, 63; Evans v Bartlam (480). A judgment irregularly entered, however, 'ought not be on the records of the court and therefore if a judgment in default of appearance or pleading has been entered irregularly, it will be set aside ex debito justitiae': Collie v Merlaw Nominees Pty Ltd [2003] VSC 424 [37]; RT Co Pty Ltd v Minister of State for the Interior [1957] HCA 39; (1957) 98 CLR 168, 170. Not every irregularity in the means by which a judgment in default is obtained will necessarily entitle the defendants to have the judgment set aside as of right: ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd [2000] WASC 214 [17] ‑ [19]. In an appropriate case, the court may amend an irregularly entered judgment rather than set it aside. (emphasis added)
[44] Starrs v Retravision (WA) Ltd [2012] WASCA 67 [36].
In ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd, Parker J said:[45]
It has been long established that where a judgment in default has been entered irregularly, ie without proper compliance with the Rules, or has been obtained in breach of good faith, it will be set aside; Hughes v Justin [1894] 1 QB 667; Alliance Acceptance Co Ltd v Makas (1976) 12 ACTR 19; Daly v Silley [1960] VR 353. In such a case the Court is not obliged to enquire whether or not there is a good defence on the merits; Anlaby v Praetorius (1888) 20 QBD 764; Alexander v Ajax Insurance Co Ltd [1956] VLR 436; White v Weston [1968] 2 QB 647; Daly v Silley (supra); Acclaim Holdings Pty Ltd v Vlado [1989] 1 WAR 128. The authorities recognise that in some circumstances those statements are to be qualified, as where the irregularity has been waived or results from an accidental omission which can be corrected, eg as to the precise amount for which the judgment is entered; Bank of Credit and Commerce International (Overseas) Ltd (in liq) v Habib Bank Ltd [1998] 4 All ER 753; City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463 …
Some more recent decisions suggest that not every irregularity in the means by which a judgment in default is obtained will necessarily entitle the defendants to have the judgment set aside as of right. I was referred in particular to Australian and New Zealand Banking Group Ltd v Kostovski, unreported; SCt of Vic (Chernov J); No 5511 of 1997; 2 July 1997, (BC 97032660) where the writ contained two endorsements which breached the Rules and Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245 where the writ had an incorrect endorsement as to service and stated that an appearance must be entered within 8 rather than 9 days of service. In both of these cases the writ was issued out of the Registry and served. In each case, the irregularity had not caused any prejudice to the defendant and did not lead to the defendant changing his position in any way or otherwise cause any injustice. In such circumstances the judgments were not set aside. In National Australia Bank Ltd v Meehan, unreported; SCt of Vic Appeal Division (Ormiston and O'Bryan JJ); No 8407 of 1993; 24 February 1994; (BC 9400980), the absence of the number of the proceeding from the service copy of the originating process was held to be merely a technical defect not producing an irregular judgment, although in contrast in Sargent v Veneris, unreported; SCt of Vic (Beach J); No 1303/1995; 20 December 1995; (BC 9507179) a failure to duly prove service of the originating process by omitting to exhibit a sealed copy of that process to the affidavit of service was held to be an irregularity which entitled the defendant to have the default judgment set aside. I was also referred to the observations of the Court of Appeal in Perry v Wong [1997] 1 WLR 381 at 388 that, in this context, procedural irregularities vary greatly in significance and the discussion in Farrow Mortgage Services Pty Ltd (in liq) v Victor Tunevitsch Pty Ltd & Ors, unreported; SCt of Tas (Crawford J); No 1383 of 1993; 8 July 1994; (BC 9400421) at 4.
While, in an appropriate case, there will be need for some more extensive consideration of these and other more recent decisions, in this present case it seems to me to be critical, on any view of the authorities, that judgment was entered in default of defence to the purported amended statement of claim filed and served on 5 July 2000. Yet that purported amended statement of claim had not been regularly filed. It was not in a form fit for filing as an amended statement of claim and, in my view of what occurred when filing was attempted, it was not accepted for filing as an amended statement of claim. Having regard to what occurred and the practice of this Court, the events indicate that the document was received into the Registry as a minute of a proposed amendment. In my view until the amended statement of claim was regularly filed it had no force or effect as an amended statement of claim for the purposes of the Rules and in particular O 21 r 3(1). It would follow that there could not be regular service of it as an amended statement of claim for the purposes of the Rules, and the time for filing a defence to it pursuant to O 21 r 3(2)(b) had not commenced to run. If that be so, the defendants were not in default of filing their defence to it on 20 July 2000 when the order was made for judgment to be entered in default of defence. In my view, the irregularity in filing on 5 July 2000 had the effect, in this case, that the plaintiffs had no entitlement to enter judgment on the basis on which they applied to do so and on which the order was made. In these circumstances, in my view, by virtue of the irregularity in the filing the defendants are entitled ex debito justitiae to have the default judgment set aside.
[45] ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd [2000] WASC 214 [17] ‑ [19].
Magistrate Hawkins found the default judgment should be set aside on grounds that:
(a)the affidavits of service lodged by Ms Snook in support of her application for default judgment were irregular and appeared to have been altered by Ms Snook without the deponent's signature on them;[46]
(b)(alternatively) the notices of intention to defend lodged on 11 October 2018 together with a direction of the Magistrates Court were provided to Ms Snook on 17 October 2018. The direction required Ms Snook to serve her statement of claim within 14 days on Mr Maginness. However, the affidavit of Mr Crew allegedly sworn on 19 March 2019 (lodged by Ms Snook), if accepted, deposed that service (of the statement of claim) was by way of post on all defendants on 29 November 2018.[47] In these circumstances, where it appeared that Ms Snook had not served the statement of claim in time the judgment in default was irregularly entered; and
(c)the defendants, in their affidavits filed in support of the applications to set aside the default judgment, had put forward defences that were not inherently incredible.[48]
[46] ts 1 August 2019, 11 ‑ 12.
[47] ts 1 August 2019, 11 ‑ 12, 19, 21.
[48] ts 1 August 2019, 20 ‑ 21.
Magistrate Hawkins properly applied the principles that apply to applications to set aside default judgment pursuant to s 19(3) of the Magistrates Court (Civil Proceedings) Act. Her Honour recited these principles as follows:[49]
The general rule is that when a judgment in default has been regularly entered, it's not to be set aside unless the court is satisfied that there is a defence on the merits or that, in other words, there is a prospect of success and instances of departure from the general rule are rare. The application should be supported by affidavit evidence which discloses the defence on the merits and explains the failure to comply with the rules and any delay in bringing the application. That is well set out in the decision of Palmer v Prince 1980 WAR 61 and 62.
The defendants in such applications must present a credible defence demonstrating that if the default judgment was set aside and the matter were argued on its merits, the defendant would have a real prospect of success. It's a rare case in which the court will decline to set aside a judgment entered in default of appearance when there is a defence on the merits or there's a real prospect of success and the failure to enter an appearance has been explained. As stated in the decision of French v Triple M Melbourne Proprietary Limited [2006] VSC 36, his Honour Bongiorno stated this:
'Litigation is not a steeple chase or even a bike race where a fall can determine the outcome, as the High court made clear in the decision of Queensland v JL Holdings Proprietary Limited. The ultimate aim of the court is the attainment of justice.'
Further, it was never intended that when the facts are in dispute that a judgment obtained in default should stand and the court does not dispose of the factual matters on a conflict of affidavits. If a version of the facts is put forward by the defaulting party which is not inherently incredible then in the absence of any opportunity of cross‑examination, it's incumbent on the court to proceed on the basis that it will ultimately be accepted at trial of the action and that there will therefore be a defence on the merits.
[49] ts 1 August 2019, 16 ‑ 17.
Her Honour then went on to consider the matters pleaded in the statement of claim lodged by Ms Snook on 27 September 2018 and the orders sought.[50]
[50] ts 1 August 2019, 17 ‑ 18.
Her Honour then had regard to the affidavit material that the defendants had filed in support of their applications to set aside the default judgment and found that the defendants had adequately explained the delay.[51]
[51] ts 1 August 2019, 19 ‑ 20.
Her Honour found that:
(a)each of the defendants disputed what was stated by Ms Snook in the statement of claim;[52]
(b)to a large extent, Ms Snook's application or claim against Mr Maginness appeared to be a form of shield in respect of an imputative or potential claim that Mr Maginness may have against her in respect of payment of any siring fees;[53]
(c)Mr Nikolovski, (who appeared to be a friend of Mr Maginness) who was interested in purchasing a pup from Ms Snook, claims he had paid a deposit but had not received a pup;[54] and
(d)Mrs Nikolovski claims she had no contact with Ms Snook in respect of any arrangements concerning the purchase of a pup or the siring of any dog owned by Ms Snook.[55]
[52] ts 1 August 2019, 19, 20.
[53] ts 1 August 2019, 18.
[54] ts 1 August 2019, 18.
[55] ts 1 August 2019, 19.
In these circumstances, it was open to her Honour, having regard to the affidavit material before the court to set aside the default judgment. All her Honour was required to do in assessing whether the material put forward by the defendants disclosed a defence on the merits, is to assess whether that material, if accepted by the court, would constitute a defence.
Consequently, I am not satisfied that it is arguable that the order made to set aside the judgment in default is visciated by any jurisdictional error. It appears that her Honour did not misapprehend or disregard the nature or limits of her functions or powers. Nor does it appear that her Honour disregarded any relevant considerations which the Magistrates Court (Civil Proceedings) Act or rules of the Magistrates Court required her Honour to consider. Nor does it appear that she breached the rules of natural justice. The decision to set aside the judgment in default was an interlocutory decision made by way of an order made in the course of proceedings in a minor case claim. Importantly, having regard to the principles outlined above, the decision and orders issued by Magistrate Hawkins on 1 August 2019 was not a final decision. It was not a judgment in the action and was not determinative of Ms Snook's minor case claim.
6.4 The order made on 1 August 2019 prohibiting Ms Snook from lodging and serving any further documents with the Magistrates Court unless pursuant to an order of the Magistrates Court or with leave of the Magistrate Court
Order 6 of Magistrate Hawkins' orders of 1 August 2019 does not prohibit Ms Snook from lodging any documents in the minor case claim. However, Ms Snook is prohibited from doing so unless authorised by order or leave of the court. For reasons that follow, such an order is within the jurisdiction of the court to make.
The effect and operation of order 6 of the order made by Magistrate Hawkins on 1 August 2019 must be considered in the statutory context of the objects and procedural rules that apply to a minor case claim.
Pursuant to s 16(1)(o)(iv) of the Magistrates Court (Civil Proceedings) Act, [56] the Magistrates Court may order parties to do anything that in the court's opinion will or may facilitate the case being conducted and concluded efficiently, economically and expeditiously. Section 28(1) of the Magistrates Court (Civil Proceedings) Act requires the Magistrates Court to deal with a minor case in accordance with the minor case procedure unless an order has been made under s 28(2) or s 28(3).
[56] Section 16(1) applies by operation of s 33(c) of the Magistrates Court (Civil Proceedings) Act and r 6A of the Magistrates Court (Minor Cases Procedure) Rules.
Section 29 of the Magistrates Court (Civil Proceedings) Act requires:
(1)All proceedings of the Court when dealing with a minor case are to be held in private unless the Court otherwise orders.
(2)Relatives and friends of a party may be present at the proceeding unless the Court otherwise orders.
(3)In dealing with a minor case the Court is to act with as little formality as the Court thinks is reasonable.
(4)When dealing with a minor case the Court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit.
Subsections 27(1) and (2) of the Magistrates Court (Civil Proceedings) Act provide:
(1)The primary object of the Court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties.
(2)The Court may, at any stage of the proceedings, do all things and take all such steps as it considers to be appropriate to achieve that primary object.
Pursuant to r 23(1) of the Magistrates Court (Minor Cases Procedure) Rules, a pre‑trial conference is not to be listed until after a defence is lodged.
Rule 24 of the Magistrates Court (Minor Cases Procedure) Rules prescribes the purpose of a pre‑trial conference. Pursuant to r 24(1) and (2) the primary role of a registrar and the purpose of a pre‑trial conference is to attempt to bring the parties to a settlement of the minor case claim (including any counterclaim). Pursuant to r 24(3) the registrar may do any of or all of the following:
(a)determine what facts, if any, are agreed by the parties;
(b)order the parties to ‑
[(i)deleted]
(ii)lodge and serve lists of documents the parties might tender in evidence at the trial in support of their claims or defences; and
(iii)exchange any other documents or information;
(c)extend the time for making counterclaims or third party claims (even if the time for making those claims has passed);
(d)recommend to the Court that it order you and the other parties to attend before a mediator;
(e)list the case for a further pre‑trial conference;
(f)make any other orders necessary to facilitate settlement or ensure the case is ready for trial.
Rule 24 specifically contemplates that, at pre‑trial conference, the registrar should consider what order should be made in respect of not only lists of documents that should be discovered by each party but what orders, if any, should be made to facilitate settlement or ensure the case is ready for trial.
In considering these issues, it is open to the registrar to consider, at the pre‑trial conference which is listed before the Magistrates Court at Joondalup on Tuesday, 8 October 2019, whether any of the orders sought by Ms Snook for the production of documents in her application filed on 31 July 2019 should be made.
When regard is had to the statutory context in which the orders were made by Magistrate Hawkins, it is not arguable to assert that any of the orders were made outside the limits or functions and powers conferred upon the magistrate in dealing with a minor case claim. The magistrate in dealing with the applications that were before her addressed all of the issues that were raised by Ms Snook and made orders that were open for her to make.
Conclusion
For these reasons, I will make an order dismissing the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith4 OCTOBER 2019
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