Fazio v McNally
[2014] WASCA 79
•16 APRIL 2014
FAZIO -v- McNALLY [2014] WASCA 79
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 79 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:100/2013 | 20 FEBRUARY 2014 | |
| Coram: | PULLIN JA NEWNES JA | 16/04/14 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ARTURO FAZIO BRIAN McNALLY |
Catchwords: | Practice and procedure Appeal from decision of District Court dismissing appeal against decisions of Magistrates Court Grounds of appeal have no reasonable prospect of success Appeal dismissed |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(i) |
Case References: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Fazio v Westpac Banking Corporation [2014] WASCA 80 Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 Jackson v Chrisp [2012] WASCA 158 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FAZIO -v- McNALLY [2014] WASCA 79 CORAM : PULLIN JA
- NEWNES JA
- Appellant
AND
BRIAN McNALLY
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : APP 75 of 2013
Catchwords:
Practice and procedure - Appeal from decision of District Court dismissing appeal against decisions of Magistrates Court - Grounds of appeal have no reasonable prospect of success - Appeal dismissed
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(i)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr J F Park
Solicitors:
Appellant : In person
Respondent : Park Linfoot Legal Solutions
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fazio v Westpac Banking Corporation [2014] WASCA 80
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Jackson v Chrisp [2012] WASCA 158
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
1 JUDGMENT OF THE COURT: This is an appeal against a decision of Stevenson DCJ in the District Court dismissing an appeal by the appellant against certain decisions of the Magistrates Court. The appeal comes before this court on a registrar's notice to attend for the following purposes:
1. to consider the appellant's application dated 4 September 2013 for, among other things, an extension of the time in which the appeal notice is to be filed and served, and an order suspending execution of the order of the District Court; and
2. for the appellant to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding, pursuant to rule 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
2 It is convenient to turn to the last of those matters first, as the appellant's application will fall away if the appeal is dismissed.
Background
3 On 16 December 2011, the appellant commenced proceedings in the Magistrates Court against the respondent, alleging that the respondent had trespassed on the appellant's land on 8, 11 and 13 August 2011 in the course of attempting to serve documents on the appellant on behalf of the City of Melville.
4 In the course of those proceedings, decisions adverse to the appellant were made on 4 May 2012, 15 May 2012, 15 June 2012, 27 July 2012, 6 August 2012, 19 September 2012 and 24 September 2012.
5 For reasons we will come to, it is unnecessary to describe the decisions of 4 May 2012, 15 May 2012, 15 June 2012, 27 July 2012, or 6 August 2012.
6 The decision of 19 September 2012 related to an application by the appellant, pursuant to s 33(3) of the Magistrates Court Act 2004 (WA), for access to (unspecified) information on the court file. That application was refused by a magistrate.
7 The decision of 24 September 2012 concerned two applications which were heard at the same time. One was an application by the appellant for summary judgment. It was the second application for summary judgment the appellant had made, an earlier application having been dismissed. The other application was an application by the respondent for an order striking out the appellant's statement of claim and for judgment in the action. The appellant did not attend on the hearing of those applications.
8 The Magistrates Court dismissed the appellant's application for summary judgment and ordered that the appellant's statement of claim be struck out. It further ordered that unless, within 10 days of service of the order on him, the appellant made an application to lodge an amended statement of claim in a form exhibited to a supporting affidavit, and subsequently obtained such an order, the action be dismissed. It seems that the appellant did not file an application to lodge an amended statement of claim within the required time.
9 The appellant sought to appeal against each of the decisions referred to at [4] by an appeal notice filed in the District Court on 25 September 2012. The appeal notice is not easy to follow. It did not contain grounds of appeal in conventional form. In substance, the appellant simply set out, in some instances in quite intemperate terms, the alleged circumstances of each of those decisions.
10 In relation to the decision of 24 September 2012, the appellant stated that he did not attend the hearing of the applications because in light of the history of the proceedings he knew the magistrate would not allow him to be heard and that because of the effect the conduct of the court was having on his 'psyche' he 'erred on the side of caution and did not attend, instead seeking to rely upon the papers'. The appellant went on to say, 'I am completely unaware of any orders made by [the magistrate] but appeal them also on the aforementioned grounds'.
11 On 12 March 2013, the primary judge dismissed an application by the appellant to remit the appeal to the Supreme Court and made procedural orders directed to a substantive hearing of the appeal, which was listed for 5 June 2013. Those orders required the parties to file and serve:
1. any application to adduce further evidence on the hearing of the appeal together with any affidavit in support;
2. a list of all documents they intended to refer to at the hearing; and
3. an outline of submissions and a list of authorities.
12 The appellant was ordered to comply with those orders by 4.00 pm on 3 May 2013 and respondent by 4.00 pm on 31 May 2013.
13 The appellant did not comply with the orders. He did not file or serve anything. Nevertheless, on 31 May 2013, the respondent sent to the appellant by both facsimile and email, a list of the documents it intended to refer to at the hearing, an outline of submissions and list of authorities, and an application to adduce an affidavit of service of those documents on the appellant.
14 On the morning of the hearing on 5 June 2013, at about 7.20 am, the appellant sent to the District Court a facsimile addressed 'to all concerned', referring to three separate actions in the court, including the action the subject of this appeal. In the facsimile, the appellant said, among other things, that he considered he was in need of mental and general health assistance. He did not, however, attach any material from a medical practitioner to support that opinion and nor did he state that his state of health prevented him from attending or being represented at the hearing that day in this matter. However, when the appeal came on for hearing at 10.30 am that day, the appellant did not appear either personally or by counsel.
The decision of the primary judge
15 The primary judge considered that the hearing should proceed notwithstanding the non-appearance of the appellant. His Honour noted that there was no explanation for the appellant's failure to comply with the programming orders made on 12 March 2012, something which his Honour considered could only be regarded as wilful non-compliance with those orders. Nor was there any proper explanation for the appellant's failure to appear at the hearing. The respondent, on the other hand, had complied with the directions so far as they applied to him and was ready to proceed.
16 The primary judge observed that the hearing date had been fixed more than three months previously and that both the respondent and other litigants waiting for their cases to be heard would be prejudiced if the hearing was adjourned at such a late stage. In that connection, his Honour noted that there was a real and substantial public interest in the efficient disposition of the business of the court which had to be taken into account. In addition, his Honour considered that the appeal on its face was incompetent in part and otherwise an abuse of process.
17 The primary judge noted that, at the relevant time, s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) provided that any appeal against a decision of the Magistrates Court had to be commenced within 21 days of the decision. The District Court had no power to extend that period: Jackson v Chrisp [2012] WASCA 158. The appellant's notice of appeal in respect of the decisions of 4 May 2012, 15 May 2012, 15 June 2012, 27 July 2012 and 6 August 2012 had been filed well outside the 21 day period. It was filed more than four months after the first of those decisions and some seven weeks after the last. The primary judge found that the appeal against each of those decisions was therefore incompetent and must be dismissed.
18 In respect of the decisions on 19 September 2012 and 24 September 2012, the notice of appeal was filed within time. The primary judge concluded, however, that neither appeal had any reasonable prospect of success.
19 The appellant stated as his ground of appeal in respect of the decision of 19 September 2012, that the magistrate had 'maliciously refused' his request to inspect the court file. The primary judge found that the notice of appeal did not contain any proper ground of appeal in relation to the decision.
20 In respect of the decisions of 24 September 2012, the primary judge found there was nothing in the notice of appeal or in the other material before the court which was capable of demonstrating any error on the part of the magistrate.
21 The primary judge dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal on an indemnity basis.
22 The appellant now appeals to this court against the decision of the primary judge.
Proposed grounds of appeal
23 The appellant has not yet filed an appellant's case but says that he intends to rely on the following grounds of appeal:
1. The Appellant was denied his lawful right ex debito justitiae to be heard by DCJ Stevenson, founded on a mixed error of law and of facts.
2. The hearing on the 5th June 2013 before DCJ Stevenson proceeded in my absence on a foundation of deliberate fraud and deceit, in that he wrongfully believed Mr John Park representing the respondent that I have been served with their materials on the 31st May 2013, when in fact I had not, a mixed error of law and of facts.
3. DCJ Stevenson erred as a mixed matter of law and fact when he found that I had wilfully non complied with the programming orders.
4. DCJ Stevenson erred at law when he decided to dispose of the matter on the foundations of Public Interest and perceived Impecuniosity.
5. DCJ Stevenson erred at law, when he failed to recuse himself of his own volition from determining this matter, as he was contemporaneously determining other matters involving the appellant and wrongfully at law considered facts and knowledge obtained from them, in this decision making process.
6. DCJ Stevenson erred at law by failing to bring a fair, balanced and impartial mind to the hearing, which would lead the reasonable minded person availed of all the facts in the matter, to conclude the appearance of an apprehension of bias.
7. DCJ Stevenson erred by way of mixed fact and law when he determined that, 'it is strongly arguable that the appeal, in any event, is incompetent in part, and otherwise an abuse of process'.
8. DCJ Stevenson erred as a matter of mixed law and fact, when he gave orders as to adduce an affidavit of further evidence during the course of the hearing, thus even further denying the appellant Natural Justice.
9. DCJ Stevenson erred as a finding of fact that my 'course of conduct which is demonstrative of a complete lack of willingness by the appellant to take responsibility for proceedings which he already had the carriage of.
10. DCJ Stevenson erred as a matter of mixed law and fact when he gave orders as to costs on an indemnity basis in any event.
11. The sum total of the aforementioned grounds amount to a Denial of Natural Justice and if the appealed against decision is left unremedied, then it also amounts to a manifest miscarriage of justice.
The disposition of the appeal
24 When this matter came on for hearing on 20 February 2014, the appellant said that he had not come prepared for the hearing. The appellant said he had understood he was required to appear before a registrar on another appeal he had instituted against Westpac Banking Corporation at the same time as this matter. He claimed not to have received the registrar's notice to attend, dated 6 February 2014, in this matter until 18 February 2014 because his mail was redirected and he did not collect it until 18 February 2014. He denied receiving a letter from the court sent to him by facsimile on 18 February 2014 advising him that this matter and the Westpac matter were both listed before this court, to be heard one after the other.
25 To avoid further delay, we directed that the respondent's counsel should make his submissions orally and the appellant have until 14 March 2014 to file written submissions. Written submissions were subsequently filed by the appellant. As it turned out, they provided very little assistance.
26 The proposed grounds of appeal are obviously not in a proper form and it is unnecessary to canvass them as they stand. Stripped to their essence, we understand them to assert that the primary judge:
1. denied the appellant procedural fairness;
2. erred in concluding that the appeal had no reasonable prospect of success;
3. erred in failing to recuse himself in circumstances where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the matter; and
4. erred in ordering that the appellant pay the costs of the appeal on an indemnity basis.
27 It is convenient to take each of those issues in turn.
Procedural fairness
28 The appellant says he was denied procedural fairness in that, first, additional evidence was adduced by the respondent at the hearing without notice to him; secondly, he was not served by the respondent with the documents specified in the orders of 12 March 2013 which were relied upon by the respondent at the hearing; and thirdly, the primary judge proceeded to hear the matter when he knew that the appellant was unable to attend due to ill-health.
29 The additional evidence referred to by the appellant was an affidavit of service, affirmed on 5 June 2013 by a solicitor acting for the respondent, deposing to service on the appellant by facsimile and email on 31 May 2013 of the respondent's written submissions and list of authorities, list of documents to be referred to at the hearing, and an application to adduce an affidavit of service of those documents. The affidavit of service was tendered by counsel for the respondent at the hearing before the primary judge. There was nothing in the affidavit which touched upon the substantive issues before his Honour. The appellant has not identified how the fact that he was not served with the affidavit prior to the hearing gave rise to a denial of procedural fairness, and it is not apparent that it might.
30 On the question of service, in the appeal to this court the appellant has sworn an affidavit of 4 September 2013 in which he alleges that the documents referred to in the affidavit of service, and which were relied upon by the respondent at the hearing, were not in fact served on him. The appellant has annexed to his affidavit a (partly redacted) activity log of his facsimile machine for the period 23 May 2013 to 7 June 2013 which he says shows that the documents were not received on his facsimile machine. He further says that his email system is set up to receive only emails from certain designated recipients, of which the respondent's solicitors are not one. Accordingly, any email sent by the latter would have 'bounced back'.
31 The latter assertion is not easy to reconcile with the appellant's appeal notice to the District Court in which he gives his email address and his facsimile number as his details for service and says that documents should not be served on him by post. We also note that in his letter of 5 June 2013 to the District Court the appellant makes no mention of a failure by the respondent to comply with the programming orders of 12 March 2013.
32 It is impossible to reach any conclusion as to the veracity of the appellant's affidavit, but in the end nothing turns on the issue of service. For reasons we will come to, the appeal was entirely without merit and the result could have been no different whether or not the appellant was in possession of the material in question.
33 The appellant's contention that the appeal should have been adjourned in light of his alleged ill-health is without substance. The hearing had been set down some three months previously. As mentioned above, the facsimile from the appellant to the District Court as to his state of health was sent on the morning of the hearing. Referring somewhat unusually to the appellant in the third person, it said, in substance, that the appellant was 'currently being assessed in home by Fremantle Medical Health Services' and that he was 'currently in obvious need of some mental health plus general health and well-being assistance'. No certificate of a medical practitioner or any other medical evidence was provided. Although the letter was sent at the eleventh hour, it was not suggested that the appellant's health had deteriorated very suddenly. Moreover, there was no express request by the appellant that the hearing be adjourned; any such request was left to be inferred.
34 In the circumstances, it could not be said that his Honour was in error in concluding that the hearing should proceed notwithstanding the non-appearance of the appellant.
35 We might add that it is apparent from the other appeal which we heard immediately after the hearing of this matter that this was not the only occasion on which the appellant had sought an adjournment for health reasons on the morning of a hearing. On the hearing of a summary judgment application in the District Court on 24 September 2013 in that matter, the appellant sought an adjournment in similar circumstances (see Fazio v Westpac Banking Corporation [2014] WASCA 80).
36 Finally, the appellant also complains that in his reasons for proceeding with the hearing in the appellant's absence, the primary judge wrongly described the appellant's failure to comply with the programming orders of 12 March 2013 as 'wilful non-compliance'. There is no substance in that. The appellant made no attempt to provide an explanation for his non-compliance and when he wrote to the court on 5 June 2013 he did not avert to it. Suffice it to say that in the absence of a proper explanation for the appellant's failure to comply with the programming orders, the primary judge was entitled to conclude that the default was wilful. We note that the appellant is still to provide an explanation.
The merits of the appeal
37 The primary judge correctly concluded that the appeal had no reasonable prospect of success. As the primary judge found, the appellant's notice of appeal in respect of the decisions of 4 May 2012, 15 May 2012, 15 June 2012, 27 July 2012 and 6 August 2012 had been filed outside the 21 day period specified in the Magistrates Court (Civil Proceedings) Act and the appeal was therefore in each case incompetent. That necessarily followed from the decision of this court in Jackson v Chrisp.
38 In respect of the decision of 19 September 2012, the 'ground of appeal' was simply stated to be that the magistrate 'maliciously refused [the appellant] access to the court file'. The primary judge correctly found that no proper ground of appeal was disclosed.
39 There were no specific grounds of appeal in respect of the decisions of 24 September 2012. That is not surprising, as the appellant did not know what orders had been made when he filed the appeal notice. The reliance in the appeal notice on the 'the aforementioned grounds' was meaningless. What was set out earlier in the appeal notice was specific to the other decisions against which the appellant was appealing and had no application to these decisions.
40 Moreover, it is clear that the magistrate was not in error in the orders he made on 24 September 2012. The appellant's statement of claim in the Magistrates Court was manifestly defective. It was, with respect, an incomprehensible jumble of assertions, and was properly struck out. The appellant's (second) application for summary judgment was also properly dismissed. Not only was the statement of claim defective, the affidavit relied upon in support of the application was as incomprehensible as the statement of claim.
41 The further contention that in dismissing the appeal the primary judge erred by taking into account the appellant's impecuniosity and the public interest is without foundation. The public interest in the effective utilisation of judicial resources, and in avoiding unnecessary costs to the respondent and delay in the disposition of matters before the court, was a relevant factor for the primary judge to take into account in considering whether the hearing should be adjourned: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27;(2009) 239 CLR 175 [5], [23] - [25], [113]. There is nothing to suggest that his Honour took into account the appellant's alleged impecuniosity.
42 In finding that the appeal had no prospect of success the primary judge was plainly correct. The appeal was entirely devoid of merit.
Recusal
43 The assertion that the primary judge should have disqualified himself on the ground of a reasonable apprehension of bias is without foundation. The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [78] - [84], [132], [139].
44 Apart from the fact that his Honour proceeded to hear the matter in the appellant's absence, there appear to be three specific grounds relied upon by the appellant in the proposed grounds of appeal and his written submissions for the proposition that a reasonable apprehension of bias existed in this case.
45 The first is an assertion that the primary judge wrongfully used information from other matters he was determining which involved the appellant. The appellant has not identified the other matters nor has he identified the information which his Honour is said to have wrongfully used. There is nothing in his Honour's reasons for judgment which might suggest that his Honour went beyond the material that was properly before him on the appeal. His Honour's reasons are confined to that material. This ground must be rejected.
46 The next ground relies upon a statement by the primary judge (ts 62) that the appellant's preferred method of communication in relation to proceedings involving him is by facsimile, a statement which the appellant describes as 'unbelievable'. Presumably his Honour was referring to the appellant's notice of appeal where the appellant says that service on him should be effected by facsimile or email. There is no substance in this ground.
47 The final ground is an assertion by the appellant that his Honour specifically directed the respondent not to serve the affidavit of service on the appellant 'so as to keep [the appellant] in the dark'. That is nonsense. In the course of the hearing on 5 June 2013, the primary judge received the affidavit of service and told the respondent's counsel that it need not be served on the appellant as the appeal was being heard that day. It is obvious that his Honour considered there would be no utility in serving the appellant with an apparently uncontentious affidavit of service after the matter had been determined. The ulterior motive the appellant attributes to his Honour is a figment of an overactive imagination.
Indemnity costs
48 It is well-established that a court has a wide discretion as to costs and that an appellate court will be slow to interfere with the exercise of that discretion. Whether or not an order for indemnity costs is appropriate must depend upon the facts of the particular case. There are not, and cannot be, any hard and fast rules. However, ordinarily an order for indemnity costs will be made only where there has been some element of improper or unreasonable conduct by a party. An order for indemnity costs reflects the court's disapproval of the conduct of the unsuccessful party. See Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233; Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [9].
49 In this case, the primary judge concluded that the appellant's conduct had been so unreasonable as to warrant an order for indemnity costs. His Honour noted in that regard that the appellant had, without any explanation, failed to comply with the programming orders made on 12 March 2013; that he had made no effort to communicate with the respondent's solicitors, with the result that the respondent had to incur the costs involved in his solicitors preparing for the hearing without knowing the substantive submissions the appellant intended to advance in support of the appeal; and that the appeal had been entirely lacking in merit.
50 An order for indemnity costs was plainly within the proper exercise of his Honour's discretion. There is no basis upon which this court would be entitled to interfere with it.
Conclusion
51 None of the grounds of appeal have any reasonable prospect of success and the appeal should therefore be dismissed. Accordingly, it is unnecessary to deal with the appellant's application.
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