| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : FARIBORZYNEJAD -v- CITY OF GERALDTON-GREENOUGH [2011] WADC 132 CORAM : CURTHOYS DCJ HEARD : 24 AUGUST 2011 DELIVERED : 24 AUGUST 2011 FILE NO/S : GER APP 1 of 2011 BETWEEN : FAIRBOD FARIBORZYNEJAD Appellant
AND
CITY OF GERALDTON-GREENOUGH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE FLYNN File No : JOO 623 of 2010 Catchwords: Dismissal for non-appearance - Civil proceedings for repayment of fine
(Page 2)
Legislation: Nil Result: Appeal dismissed Representation: Counsel:
Appellant : Mr Ali Fariborzynejad (by Power of Attorney)
Respondent : No appearance
Solicitors:
Appellant : Not applicable
Respondent : Not applicable
Case(s) referred to in judgment(s):
Nil
(Page 3)
CURTHOYS DCJ: [This judgment was delivered extemporaneously on 24 August 2011 and has been edited from the transcript.]
The claimant's claim 1 On 16 August 2010 Mr Fariborzynejad (the claimant) issued a minor case claim (Form 20) in the Magistrates Court of Western Australia against the City of Geraldton-Greenough (the City) claiming $250. Court and service fees brought the total to $376.40. 2 The description of claim is: I have held a block of land in Geraldton for three years with no fire break notices 16 Brockagh Drive Utakarra 6530. This is vacant land with low scrub. I do not consider a fire break necessary. I have also been charged $300 for fire prevention work and I am disputing this amount attached 20 pages of correspondence. 3 The block of land is situated in Geraldton and is within the jurisdiction of the City.
Proceedings by civil claim misconceived 4 On 28 October 2010 the City had issued an infringement notice under s 59A(2) of the Bushfires Act 1954 to the claimant for failing to clear a firebreak. The infringement notice stated that the claimant had failed to comply with a notice requiring him to clear firebreaks or take other action to prevent the outbreak or spread of bushfires contrary to Item 21 s 33(3) of the Bushfires Act. The penalty was $250. 5 The notice required the claimant to comply with the firebreak order and to pay the fine or to have the matter dealt with by a court. If the claimant was unhappy with paying the $250 then he was able to elect to have the matter dealt with by a court. The appropriate court would be the Magistrates Court in the exercise of its criminal jurisdiction. If he was convicted and fined after a court hearing, the appropriate remedy was to appeal the conviction. 6 A Form 20 signed by the claimant on 26 November 2010 states 'the remedy I require is refund of moneys already paid'. By paying the fine in the infringement notice and not exercising his election to have it heard by the court he effectively admitted his liability. He cannot revisit that matter in civil proceedings. (Page 4)
7 In either event these proceedings are misconceived and would ultimately be dismissed. The appeal should be dismissed on substantive grounds.
The merits of the appeal on procedural grounds 8 The appeal is ultimately against the dismissal of the claimant's claim on 27 January 2011. 9 The Form 20 was issued from the Joondalup Registry. Rule 8 of the Magistrates Court (General) Rules 2005 provides that an application to commence a case may be lodged in any registry. If the claimant had a valid claim he was entitled to lodge it at the Joondalup Registry. 10 The Form 20 was served on the City on 31 August 2010. 11 The City wanted the claim to be heard at Geraldton rather than at Joondalup. Rule 109 of the Magistrates Court (Civil Proceedings) Rules 2005 provides that if a party wants to make an application for a court order, the party must lodge the approved form. On 9 September 2010 the City applied for a change of venue on the basis that the offence had occurred in Geraldton and therefore the case should be heard in Geraldton. 12 The application to change venue was listed to be heard at Joondalup on Thursday, 30 September 2010. 13 On 16 September 2010 the Joondalup Registry of the Magistrates Court gave notice to the claimant that the City had lodged a notice of intention to defend the claim and sent a copy of the City's application for change of venue and affidavit in support to the claimant's address. 14 A certificate of service of the application and affidavit was signed by a registrar of the Magistrates Court on that date. A notice advising the claimant that he was required to attend a pre-trial conference at the Magistrates Court at Joondalup on 26 October 2010 at 9.30 am was also sent. 15 The claimant claimed that he did not receive the original notice of pre-trial conference dated 16 September and only received this with a further notice dated 26 October 2010. 16 On 30 September 2010, the magistrate at Joondalup made a general order in the following terms: (Page 5)
1. I am satisfied that it would be more convenient or fair to the parties for the whole of the proceedings to be conducted in the Magistrates Court at Geraldton. 17 The claimant did not attend on 30 September 2010. 18 Although the magistrate did not give reasons for this matter to be heard in Geraldton there were obviously good reasons for the matter to be dealt with there since: (a) the land the subject of the infringement notice and owned by the claimant is near Geraldton; (b) the defendant is in Geraldton; (c) the work of clearing the firebreak was probably carried out by contractors resident in Geraldton; (d) the City rangers are probably resident in Geraldton. 19 Apart from the claimant all of the witnesses likely to be called live in Geraldton. The costs of having a number of witnesses attend at a hearing in Perth would be out of all proportion to the claim in this matter. 20 The claimant attended at the pre-trial conference at Joondalup on 26 October 2010. 21 On 26 October 2010 a pre-trial conference was listed for hearing in Geraldton on 17 November 2010. 22 On 1 November the claimant wrote to the Mayor of the City raising an issue about the validity of the claim. The letter was cc'd to the Prime Minister's Office in Canberra. 23 On 3 November 2010 the claimant lodged a Form 23 describing the nature of orders sought as 'request that hearing be changed to any Magistrates Court in Perth as I am unable to attend the Geraldton court and the original application was lodged at Joondalup'. The Form 23 was sent with a covering letter from the claimant that stated 'I am of the opinion that I will not receive a fair and just hearing if this matter is held in Geraldton'. 24 On 5 November 2010 the claimant's application to transfer the matter to Perth was refused. The claimant did not appeal that decision. If he was unhappy with the decision then he should have appealed that decision. He is bound by his election not to appeal that decision. (Page 6)
25 On 17 November 2010 the registrar made orders that the claimant shall lodge and serve a Form 20 statement of minor case claim within 14 days and the defendant shall lodge and serve a Form 22 statement of defence to minor case claim. 26 The claimant filed a Form 20 on 26 November seeking 'a refund of monies already paid' – infringement fine $250 and firebreak $300 – a total of $550. 27 On 26 November 2010 the claimant filed a further Form 20 stating that 'it should be conceivable that it would be difficult for me to take time off work and attend court in Geraldton, some 600 kms for this case'. 28 On 15 December 2010 the claimant advised the Magistrates Court at Geraldton that he had requested the matter to be heard at Joondalup, that he was going overseas and that any correspondence should be addressed to his father. 29 On 22 December 2010 the claimant was advised that he was required to attend a listing conference at the Magistrates Court in Geraldton on 21 January 2011 at 2.15 pm. 30 On 5 January 2011 the claimant's father advised the magistrate at Geraldton that his son would not be attending at Geraldton on 21 January 2011 and that he did not request an adjournment as he wanted the matter to be heard in Perth. He cc'd the letter to the Supreme Court Perth, the Treasurer and Attorney General, Senator Pratt, and Julia Gillard the Prime Minister. 31 The claimant initiated the proceedings. He is bound by the procedure of the court. The court had properly determined that the matter be heard in Geraldton. 32 The claimant failed to appear on 21 January 2011. 33 On 27 January 2011 an order was made dismissing his claim and entering judgment for the City. The magistrate's order was correct.
Appeal to this court 34 On 15 February 2011 the claimant/appellant filed an appeal in this court against the dismissal of his claim. In March 2011 he sought an order by chambers summons that the hearing of the appeal be transferred to Perth on the grounds that: (Page 7)
1. I am unable to attend Geraldton due to an ongoing medical condition. 2. I am currently taking prescribed medications under the condition that I am unable to drive a motor vehicle. 3. To travel to Geraldton I would require a competent person to accompany me and I am unable to make such arrangements. 35 There was no medical evidence to support the statements in the affidavit concerning the appellant's medical condition. Subsequent documents filed by the claimant in this court do not indicate why he was unable to attend court. 36 The claimant has flown overseas during the course of the proceedings. There is no apparent reason he could not have flown to Geraldton.
Resolution of this appeal 37 The matter was listed today to hear the appellant's application to have the appeal transferred to Perth. 38 I asked the appellant if he was prepared to have the appeal heard today. He agreed to have the appeal heard today. 39 For the reasons stated above I order that: |