Geraty v Kneale
[2018] WADC 45
•24 JANUARY 2018
[2018] WADC 45
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : JUDGE VERNON | ||
| HEARD | : 24 JANUARY 2018 | ||
| DELIVERED | : 24 JANUARY 2018 | ||
| PUBLISHED | : 6 APRIL 2018 | ||
| FILE NO/S |
| ||
| BETWEEN | : MICHAEL ANTHONY GERATY |
Appellant
AND
RYAN MARK KNEALE
Respondent
ON APPEAL FROM:
| Jurisdiction | : | MAGISTRATES COURT OF WESTERN AUSTRALIA |
| Coram | : MAGISTRATE MAHON | ||
| File Number |
|
[2018] WADC 45
Catchwords:
Appeal from Magistrates Court - Application to remove a case from the inactive cases list - Turns on own facts
Legislation:
District Court Rules 2005 (WA) r 50(1)(d)
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40
Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 95E, r 95F(1), r
95F(2)
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | Ms G Cleary |
Respondent : No appearance
Solicitors:
| Appellant | : | Slee Anderson & Pidgeon |
Respondent : Not applicable
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40
Brocz v Hughes [2010] WASCA 57; (2010) 41 WAR 84
Gronow v Gronow (1979) 144 CLR 513
Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd [2016] WADC 33
Rowe v Stoltze [2013] WASCA 92
[2018] WADC 45
JUDGE VERNON
JUDGE VERNON:
Introduction
This is an appeal from a decision of a magistrate.
On 18 October 2017, the magistrate refused the appellant's application to remove proceeding numbered 849 of 2014 (the Proceeding) from the Bunbury Magistrates Court's inactive cases list (the ICL).
The Proceeding was entered into the ICL on 26 July 2017. The operation of r 95F(1) of the Magistrates Court (Civil Proceedings) Rules 2005 (Magistrates Court Rules) would result in the Proceeding being dismissed on 27 January 2018. There is no power to reinstate a case once dismissed for this reason.
Accordingly, in light of my decision that the appeal should be granted and the Proceeding removed from the ICL, I made orders to that effect on 24 January 2018, on the basis that I would later publish my reasons for decision, these are those reasons.
The respondent, who is self-represented, did not appear at the hearing of the application. The respondent had been served with both the notice of appeal and an application for orders in the appeal, heard on 14 December 2017. On that date orders were made listing the appeal for hearing on 24 January 2018. The court's records show that a copy of the orders had been posted to the respondent at his address for service. Accordingly, the appeal was determined in the respondent's absence.
The appeal
The appeal is brought on the grounds that the learned magistrate
erred:
(1)
in fact in that he based his decision on the mistaken belief that another action by the appellant, in the same court and against the respondent's brother, was also on the ICL; and
[2018] WADC 45
JUDGE VERNON
(2) in law in the exercise of his discretion, by failing to apply the considerations set out in Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd [2016] WADC 33.
The appeal is by way of a re-hearing, and proceeds by way of a reconsideration of the evidence that was before the Magistrates Court: Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act) s 40, District Court Rules 2005 (WA) r 50(1)(d).
The appellant must demonstrate a legal, factual or discretionary error by the learned magistrate: Allesch v Maunz [2000] HCA 40 [23].
The court may substitute its decision for that of the magistrate only if the court finds such an error has been made, based on the material which was before the magistrate. Whilst it is possible to seek leave to adduce additional evidence in special circumstances, no such application was made in this case.
An appellate court should be slow to overturn a discretionary decision on grounds that only involve conflicting assessments of matters of weight: Gronow v Gronow (1979) 144 CLR 513, 519 - 520 (Stephen J).
Removal of proceedings from the ICL
Rule 95A to r 95F of the Magistrates Court Rules set out the requirements for the inclusion, and removal, of proceedings from the ICL.
Rule 95E provides that the court may order that a case be taken
off the ICL:
(1) if it is satisfied that the Proceeding will be conducted in a timely
way; or(2) for any other good reason.
A case is taken to be dismissed if it has been on the ICL for six continuous months: r 95F(1) Magistrates Court Rules.
A case is taken to be dismissed if no procedural step is taken in the six months after the date on which a case is ordered to be taken off the ICL: r 95F(2) Magistrates Court Rules.
[2018] WADC 45
JUDGE VERNON
Background and history of the Proceeding
The nature and history of the Proceeding is set out in the affidavits of Murray Douglas Tennent-Brown sworn 13 September 2017 and the appellant, sworn 13 October 2017, filed in support of the application before the magistrate.
A draft statement of general procedure claim (or statement of claim) was on the court file. Whilst the magistrate had been informed at the time of the application that a statement of claim had been prepared by counsel and settled, there is no evidence the statement of claim itself was before him when he determined the application. Accordingly, I have not taken the contents of that document into account in determining the appeal.
In summary, the appellant's claim as against the respondent is as
follows:
(1) between September 2008 and February 2009, the appellant and his de facto wife, Debra Kneale, who is also the respondent's mother, made payments of money to the respondent totalling approximately $54,000; (2) the appellant claims that the payments were made pursuant to an oral loan agreement between the appellant and Ms Kneale as lenders and the respondent as borrower. The appellant claims that the money was to be repaid upon demand, which demand was made on or about 27 August 2014; and (3) the respondent does not dispute he received the money, but claims that the money was a gift to the respondent from his mother and the appellant.
The appellant commenced other proceedings in the same court, numbered 891 of 2015. By these proceedings, the appellant seeks recovery of payments totalling $31,000 made to the respondent's brother, and Ms Kneale's son, Jaydon Kneale, on the same basis as the claim against the respondent. Jaydon Kneale also does not dispute that he received the money, but says that the money was a gift.
| 19 | A complicating factor in both proceedings is that all the payments were made jointly by the appellant and Ms Kneale. As at the |
[2018] WADC 45
JUDGE VERNON
date of the hearing before the learned magistrate, Ms Kneale was not party to either proceeding. The affidavits filed in the application evidenced that Ms Kneale had refused to be joined as an appellant in either proceeding. The appellant sought orders joining Ms Kneale as a defendant in both.
The history of the Proceeding was as follows:
(1) the Proceeding commenced on 6 October 2014; (2) on 3 December 2014 the respondent filed a notice of intention
to defend;(3) an application to remove the application to the Magistrates
Court in Geraldton was dismissed on 11 February 2015;(4) pre-trial conferences took place on 5 March 2015 and 2 July
2015;(5) on 2 July 2015, orders programming the matter to a hearing were made, which ultimately required the filing of a memorandum of listing conference by 2 October 2015, identifying unavailable dates for trial. None of these orders were complied with; (6) between July 2015 and December 2016, the appellant and Ms Kneale attempted, both personally, and through the appellant's solicitors, to negotiate a settlement with the respondent and his brother.
In September 2015 the appellant's solicitors engaged counsel to provide a detailed advice. That advice was received in July 2016. The reason for the time taken to provide the advice was not explained to the magistrate.
Counsel providing that advice withdrew from the matter in
November 2016.
The appellant instructed replacement counsel to prepare a statement of claim in early 2017. The statement of claim was received in draft form on 12 July 2017, and settled on 4 August 2017.
By a notice dated 26 July 2017, the appellant was given notice that the Proceeding had been placed on the ICL.
[2018] WADC 45
JUDGE VERNON
On 14 September 2017 the appellant applied to remove the Proceeding from the ICL.
In the affidavits filed in support of the application, referred to in
[15] above:
(1) Mr Tennent-Brown deposed to the fact that the appellant had
instructed his firm to progress the court proceeding; and(2) The appellant deposed to the fact that, since the pre-trial conference on 2 July 2015, he and Ms Kneale had attempted, unsuccessfully, to resolve the matter with the respondent directly and through the appellant's solicitors. He also referred to the delay due to the change in the barrister briefed in the matter. The appellant confirmed that he had instructed his lawyers to progress the court proceedings.
The application was heard on 18 October 2017.
The respondent did not file any affidavit evidence in opposition to that application, but appeared at the hearing.
The respondent said at the hearing, 'We've got a stat dec here to say [from] my mother to say it's a gift'. The appellant's counsel confirmed when asked that she was aware of the statutory declaration. When asked if it affected the appellant's position, counsel said:
No. No. There are some circumstances around that statutory declaration and what it covers that are – but no, don't cause me significant concern [sic].
Finally, the magistrate had before him a minute of proposed orders programming the Proceeding to a hearing. The proposed orders provided, in particular, for Ms Kneale to be joined as a defendant and that the Proceeding be heard with 891 of 2015. The orders also provided for the filing of the draft statement of claim and a defence, discovery of documents, and the lodging of a listing conference memorandum by 1 December 2017.
The magistrate's decision
The magistrate found, as was the case, that there had been a lengthy delay of 27 months (ts 5).
[2018] WADC 45
JUDGE VERNON
The magistrate accepted that the appellant was not precluded from commencing fresh proceedings, if the Proceeding was discontinued by reason of the operation of r 95F(1), as having been on the ICL for six months (ts 16). Subject to the operation of any limitation period, as the fact that proceedings have been dismissed does not necessarily mean that any fresh action will be an abuse of process: Rowe v Stoltze [2013] WASCA 92 [45] (Newnes JA, Pullin & Murphy JJA agreeing); Brocz v Hughes [2010] WASCA 57; (2010) 41 WAR 84 [98].
Given the loans were claimed to be repayable on demand, which the affidavits evidenced had been made on 27 August 2014, there was no apparent limitation bar on the commencement of fresh proceedings, should the Proceeding have been dismissed automatically pursuant to r 95F(1).
The magistrate also accepted that the hearing of the two matters side by side, with the evidence led in one being admissible in relation to the other, would avoid duplication of costs (ts 8, ts 11), and be efficient and effective, saying, 'In my view, it would reduce everyone's resources and the court's time for the matters to travel alongside together' (ts 15).
The magistrate accepted that the matters were not straightforward, and that it was understandable that counsel had been briefed (ts 17). He also accepted that considerable efforts had been applied in trying to resolve the Proceeding (along with 891 of 2017) (ts 17).
The magistrate concluded, however, that he was not satisfied that the proceedings would be conducted in a timely way, saying (ts 18):
On consideration of whether I am satisfied that the Proceeding will be conducted in a timely way, with some regret and anxiety I've formed the view that I cannot be so satisfied in relation to this case. I have relied upon the lamentable delay that has crept into the matter. Whilst I have been cognisant and to a certain extent understanding of the difficulties faced by [the appellant], these were matters that needed a fine balance of time to try and resolve, but is seems to me the position … I anticipate the position was intractable and evidently so from the outset, and on any analysis should have moved very much quicker than it did.
[2018] WADC 45
JUDGE VERNON
| 37 | Despite this finding, the magistrate appeared to accept that, if the Proceeding was not removed from the ICL, and the proceedings were dismissed, the appellant would pursue fresh proceedings saying (ts 19): |
It seems to me at this stage particularly with a potential avenue open to [the appellant], although I would hope that the matter would be the subject of pause for thought before any further steps were taken, if anything the good reason for this rather long running issue as between the parties involved at the heart of the family where I remind myself Ms Kneale remains in a relationship with [the appellant], with no small amount of tension there, I am sure.
I have formed the view that any good reason I have to say falls in favour of the matter remaining on the inactive cases list rather than coming off it. It's then open to [the appellant] to take an overview, to pause for thought, to consider the position going forward. He now has the benefit of recent advice by [counsel] … and I get the sense if the matter were to be re-agitated, … he ... would ensure that matters do not move slowly as they have done in the past, but that's ultimately a matter for [the appellant] and his legal advice team to consider next steps.
In summary, my judgement in relation to this matter is that matters 891 and 849 remain on the inactive list. I have formed the view … these matters need to be considered elsewhere, that I have failed to be satisfied that the Proceeding will be conducted in a timely way and I have relied heavily upon the matters that have happened in the past and, as I say, the good reason component in my finding, in any event falls in favour of the matters remaining inactive, rather than being active.
(emphasis added)
Grounds of the appeal
The grounds of appeal are set out below, in full:
1. The Magistrate erred in fact, and thereby caused a miscarriage of justice, when he based his decision refusing to order that BUN/GCLM/849/2014 be removed from the Inactive Cases List on the mistaken belief that BUN/GCLM/891/2014 was also on the Inactive Cases List.
[2018] WADC 45
JUDGE VERNON
Particulars
(a) BUN/GCLM/891/2014 was a claim by the appellant against the brother of the respondent, Jaydon Trent Kneale; (b) The claim against Jaydon Trent Kneale is of a similar nature to the claim against the respondent; (c) At the hearing on 18 October 2017 an order was sought removing BUN/GCLM/849/2014 from the Inactive Cases List; (d) BUN/GCLM/891/2014 was not on the Inactive Cases List; (e) At the hearing on 18 October 2017 orders were also sought joining both claims in the one hearing, and joining a second defendant, Debra Lee Kneale, to each action; (f) At the hearing on 18 October 2017 the magistrate appeared to be of the view that both cases were on the Inactive Cases List, and even after correction, based his decision in relation to the application to remove BUN/GCLM/849/2014 on factors relevant to both cases in the Inactive Cases List, rather than the effect of only one being on the Inactive Cases List. 2. The Magistrate erred in law in refusing to order that BUN/GCLM/849/2014 be removed from the Inactive Cases List.
Particulars
The magistrate failed to apply the considerations set out in Mammoth Nominees Pty Ltd v Greg Rowe Pty Ltd [2016] WADC 33.
The appellant's counsel elaborated on ground 2 in her written submissions, submitting that the magistrate had failed to take into account, or to give adequate weight to, each of the considerations outlined in [73] of Mammoth Nominees, in summary, that:
(a) the claim was brought bona fide and for a reasonable sum; (b)
substantial court resources would not be wasted if the indulgence sought was granted;
(c) there was no, or limited, prejudice to the other party;
[2018] WADC 45
JUDGE VERNON
(d) the delay was explained; (e)
work had been done by the appellant to progress the matter, including the preparation of a statement of claim; and
(f)
the appellant had committed himself to progressing the matter in a timely fashion, including the appellant's commitment to a minute of proposed orders.
Determination of appeal
Ground 1
The passages of the transcript of the learned magistrate's decision, referred to at [36] and [37] above, support a finding that he based his decision not to reinstate the Proceeding on the erroneous belief that both it and 891 of 2015 were on the ICL.
The magistrate erred in failing to revisit his decision after this error had been drawn to his attention. Although the magistrate was not specifically asked to reconsider the decision before formally making any orders, he ought to have done so in light of the importance of that fact in his determination of the application.
The fact that both proceedings were not on the ICL fundamentally undermined his Honour's reasoning for not ordering the Proceeding be removed from the ICL, given 891 of 2017 would continue whether or not the Proceeding were removed from the ICL. Given that, and the prospect of the appellant commencing fresh proceedings, the effect of his order was either to ensure that the two proceedings would, in fact, proceed separately, or that 891 of 2015 would have to be delayed further to allow the new proceedings to catch up. This was contrary to his expressed view that it was in the parties' interests to have both claims determined in the same hearing.
The magistrate was clearly concerned about the difficulty presented by the fact that Ms Kneale did not wish to take part in the action against her sons. He said:
These matters are … hugely problematic for all the parties involved. I have seen – and all – anyone who deals within the justice system sees in various manifestations both criminal and civil terrible problems that rise within circumstances of family type arrangements (ts 16).
[2018] WADC 45
JUDGE VERNON
The passage referred to in [37] above indicates that the magistrate hoped that, if both proceedings remained on the ICL, the appellant might take the opportunity to reconsider bringing fresh proceedings in the interests of family harmony. Whilst the magistrate clearly had the parties' best interests at heart in saying this, the collateral damage that the pursuit of the litigation may have on the parties' relationships was not, in my view, a relevant consideration in determining whether the Proceeding should be removed from the ICL. In any event, however, there was little, if any, prospect of this occurring given that 891 of 2017 remained on foot.
Accordingly, I find ground 1 of the appeal is made out.
| Ground 2 |
The magistrate based his decision that he was not satisfied the Proceeding would be conducted in a timely way (r 95E(1)) on the length of the past delay, to the apparent exclusion of other relevant factors.
The magistrate does not appear to have given any consideration to the appellant's evidence of his intention, his solicitor's evidence of the appellant's instructions and other evidence from which it could be inferred that the appellant would now pursue the Proceeding in a timely way.
In particular, the magistrate apparently failed to give consideration to the evidence that:
(1)
the appellant had briefed counsel for advice on how to proceed in a case with complex issues, and appointed replacement counsel when the involvement of the first counsel had ceased;
(2) the appellant's counsel had prepared a detailed statement of
claim, which had been settled;(3)
the statement of claim had been prepared before the appellant received notice that the Proceeding had been placed on the ICL, although it was not settled until nine days after that notice issued;
(4)
the appellant had committed to complying with a minute of proposed orders filed with the application, programming the
[2018] WADC 45
JUDGE VERNON
Proceeding to the point where the parties would file a listing conference memorandum within eight weeks of the hearing before the magistrate.
The reference by the magistrate to the prospect of the appellant commencing fresh proceedings referred to in [37] above suggests that the magistrate thought it likely that the appellant intended in future to pursue his claim against the respondent. His Honour did not, however, apply the same reasoning to find that the appellant would conduct the Proceeding in a timely way in future, if it were not necessary for him to commence fresh proceedings.
The magistrate did not expressly take into account that the claim was for the specific, and relatively substantial, amount of $54,000.
Whilst the learned magistrate referred to the forensic difficulties facing the appellant, it is apparent that he considered that there was a genuine dispute between the parties, and that the claim was not without merit. That was obviously correct, given that there was no dispute as to the payment of the money claimed, rather as to the basis of the payment, the proof of which would be dependent on the oral evidence of the parties.
The magistrate did not expressly take into account the explanation for the delay, although he appears to have accepted there was some reason for the delay, noting that the matter was a complex one and that it was reasonable to have sought counsel's advice.
The magistrate did not apparently consider the effect of the delay on the respondent. There was no evidence of any specific detriment to the respondent. Although oral evidence would be crucial to a determination of the claim, that evidence would be required on the single issue of whether the money paid was a gift or a loan. In addition, it appears that the respondent had taken steps to obtain some evidence in support of his case, in the form of the statutory declaration.
In my view, for the reasons referred to above, the magistrate erroneously relied on the history of the Proceeding, either to the exclusion of the other relevant factors I have referred to, or without giving adequate consideration of, and weight to, those factors. A proper exercise of the discretion, on the basis of that evidence, required him, in my view, to find that he was satisfied that the Proceeding would be pursued in a timely way.
[2018] WADC 45
JUDGE VERNON
Accordingly, I find that ground 2 of the appeal is made out.
| Conclusion | |
| 56 | For the reasons given, the appeal was allowed. |
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
ASSOCIATE TO JUDGE VERNON
5 APRIL 2018
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