Justice Legal Pty Ltd v Prosser - [2018] WASC 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JUSTICE LEGAL PTY LTD -v- PROSSER [2018] WASC 267
CORAM:   VAUGHAN J
HEARD:   23 AUGUST 2018
DELIVERED          :   29 AUGUST 2018
FILE NO/S:   CIV 1327 of 2018
BETWEEN:   JUSTICE LEGAL PTY LTD
Plaintiff
AND
REGISTRAR RENEE PROSSER
First Defendant
HIS HONOUR CHIEF MAGISTRATE STEVEN HEATH
Second Defendant

Catchwords:

Practice and procedure - Application for review order under the Magistrates Court Act 2004 (WA) s 36 - Whether a lawyer representing a party is required to specify a physical address on documents for lodgement with the Magistrates Court - Whether r 102 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) is void for inconsistency with the Magistrates Court Act 2004 (WA)

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 13, s 48
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 9, r 13
Magistrates Court (General) Rules 2005 (WA), r 101, r 102
Magistrates Court Act 2004 (WA), s 36, s 40

Result:

Application for review order dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Ms T McAulay
First Defendant	:	No appearance
Second Defendant	:	No appearance
Attorney-General (as amicus curiae)	:	Mr J L Winton

Solicitors:

Plaintiff	:	McAulay Legal
First Defendant	:	No appearance
Second Defendant	:	No appearance
Attorney-General (as amicus curiae)	:	State Solicitor's Office (WA)

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

AVWest Aircraft Pty Ltd v Clayton Utz [2018] WASC 167
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Edwards v Olsen [1996] SASC 5703; (1996) 67 SASR 266
Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311
Hemmett v Market Direct Group Pty Ltd [2018] WASC 214
Li v Cox [2012] WADC 97
Love v KWS Capital Pty Ltd [2013] WASC 466
Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77
Morton v Union Steamship of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Schaefer v Department of Housing [2018] WADC 88
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245

VAUGHAN J:

Introduction

The plaintiff, Justice Legal Pty Ltd (Justice Legal), is an incorporated law practice. It applies by an amended originating summons for a review order in relation to what is described as a 'decision' of a registrar of the Magistrates Court of Western Australia at Perth.
The application raises the question of whether, on the proper construction of r 102 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA), a lawyer representing a party is required to specify a physical address on documents for lodgement with the Magistrate Court. If that be the case, a further issue arises as to whether r 102 is invalid as being inconsistent with provisions of the Magistrates Court Act 2004 (WA) or the Magistrates Court (Civil Proceedings) Act 2004 (WA).
For the reasons I develop below, on their proper construction r 102(1) and (5) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) did require Justice Legal to specify a physical address for service on the document it sought to lodge with the Magistrates Court on behalf of a client. In so doing the rules are not invalid for reasons of inconsistency. Accordingly, the application for a review order will be dismissed.

Factual background

Justice Legal acts for a client, Erol Delphine, in Magistrates Court action 17515 of 2016.
On 11 January 2018 Tristan Cockman, the director of Justice Legal acting on behalf of Mr Delphine, sent to the Magistrates Court for lodgement a Form 15 (Response to General Procedure Claim) in relation to action 17515 of 2016. The Form 15 specified an email address as Mr Delphine's address for service. The Form did not specify a physical address for service.
By an affidavit dated 9 May 2018, filed in support of the application for a review order, Mr Cockman deposes that he (and inferentially Justice Legal) does not have a physical office. Although having deposed in an earlier affidavit that he works from home, in this affidavit Mr Cockman deposes that he works from several locations including, among others, his home address, the homes of family members and friends, cafes and client premises. It is implicit in Mr Cockman's affidavit material that Justice Legal does not have a principal place of business other than Mr Cockman's home.
Mr Cockman deposes that he does not wish his personal address to be disclosed to other parties for reasons of safety and security. Presumably this is why the Form 15 specified an email address as the address for service and there was no address for service at a physical location (such as Mr Cockman's home).
By a letter dated 25 January 2018 the Magistrates Court notified Justice Legal that the Court could not accept the Form 15 for lodgement because it did not comply with r 102(5) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA). Rule 102(5) provides that if a party lodging a document is represented by a lawyer the address for service on the document for lodgement must be the principal place of business of the lawyer or the lawyer's number at a document exchange approved by the Chief Magistrate.
The 25 January 2018 letter informed Justice Legal that the firm could obtain leave of the Court to have an email address as an address for service by lodging a Form 23 (Application) along with a Form 2 (General Form of Affidavits). The cost to lodge the application, as stated in the letter, is $162.50.
On 2 February 2018, acting on behalf of Mr Delphine, Mr Cockman attended the Magistrates Court in person and attempted to lodge the Form 15, a Form 23 and a Form 2 (the latter two documents being an application to use an email address as an address for service and an affidavit in support of that application respectively).
On the same day, by a Form 61 (Notice of Registrar's Refusal to Accept Documents), the Magistrates Court refused to accept any of the Form 15, Form 23 and Form 2. The Form 61 stated that the reason for the refusal was that the documents did not comply with r 102(5) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) in that they only provided an email address as an address for service, not the address of a principal place of business.
I pause to note the Kafkaesque nature of the situation faced by Justice Legal. It wishes to be able to provide only an email address for service; its motivation for doing so is that the principal of the firm does not wish his home address - which is the only address Justice Legal might reasonably provide - to be generally known. That is quite understandable. It is very common for legal practitioners in swearing affidavits to provide only a business address rather than the deponent's residential address. Yet, in order to make the very application the Magistrates Court suggests is required to seek leave to have an email address as the sole address for service, Justice Legal is told it must provide an address of a principal place of business as an address for service - thus undermining the rationale of the application. It seems surprising that no practical solution can be found to avoid what is, on its face, a wholly illogical situation.
On 5 February 2018 Justice Legal lodged an appeal against the decision of the registrar not to accept the Form 15, Form 23 and Form 2.
The appeal was heard by a magistrate on that same day. The learned magistrate dismissed the appeal and made orders refusing Justice Legal leave to lodge the documents without specifying a physical address as a principal place of business.
These proceedings, invoking s 36 of the Magistrates Court Act 2004 (WA), were commenced on 23 February 2018. As amended the application seeks a review order of the registrar's decision of 25 January 2018 refusing to accept the Form 15 for filing for failing to comply with r 102 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA). The application is supported by an affidavit of Mr Cockman sworn 22 February 2018.
The affidavit sworn 9 May 2018 appears to have been filed to provide further factual background in support of the application. The affidavit is some 112 pages in length and includes 47 attachments. It is unnecessary to elaborate further on the contents of the 9 May 2018 affidavit. The circumstances that give rise to the application for a review order have already been described. The remainder of the affidavit is somewhat tendentious and partisan in nature and need not be referred to in dealing with the legal issues that arise on the application.
On 26 February 2018 Justice Legal, again acting on behalf of Mr Delphine, appealed the 5 February 2018 decision of the learned magistrate to the District Court of Western Australia. That matter, being appeal 27 of 2018, has not yet been heard by the District Court.
On 11 June 2018 Justice Legal applied to have the District Court appeal remitted to this court. The remittal application was made by chamber summons in these proceedings and invoked s 76 of the District Court of Western Australia Act 1969 (WA). The application for remittal is supported by another affidavit of Mr Cockman sworn 9 May 2018 in which Mr Cockman deposes that the grounds of appeal in the District Court matter are 'substantially the same', if not identical, to the claims made in the matter before this court.
On 5 July 2018 the Attorney-General applied for leave to intervene in these proceedings as amicus curiae. At the hearing on 23 August 2018 I made orders granting that leave. It was appropriate to do so in circumstances in which the defendants to the application ‑ quite properly insofar as they are a registrar and the Chief Magistrate of the Magistrates Court[1] - gave notice that they intended to abide the outcome of the application. In the absence of a contradictor I was assisted by the concise and considered submissions of counsel who appeared for the Attorney-General.
A further affidavit of Mr Cockman was filed on 2 August 2018. The affidavit identifies other matters in the Magistrates Court in which Justice Legal has attempted to lodge documents that do not specify a physical address for service. Mr Cockman deposed to the ways in which those matters have been dealt with. As the affidavit of 2 August 2018 does not address facts and circumstances pertaining to any act, order or direction the subject of the application for a review order it is unnecessary to say anything further about it.

The immediate issues for determination
[1] See R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35 - 36.

There are two immediate issues for determination:
(1)On its proper construction does r 102 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) require that where a party is represented by a lawyer a document lodged in relation to a case must contain a business address for service in accordance with r 102(5)? Or is it sufficient if the lawyer's email address is provided? (Issue 1)
(2)If the document must contain a business address for service in accordance with r 102(5), is r 102 invalid to that extent on the basis that it is inconsistent with s 13(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) or s 40(2)(d) of the Magistrates Court Act 2004 (WA)? (Issue 2)
A further issue for determination is whether the District Court appeal proceedings ought to be remitted to this court. (Issue 3)
There are other questions that may arise on the s 36 application. For example, assuming that the plaintiff succeeds on Issue 1, it remains to be determined whether the registrar's decision was made without power or jurisdiction or in circumstances of jurisdictional error. As counsel for the Attorney-General submitted, there is a real question as to whether such an alleged error might merely constitute an error of law within jurisdiction. Also, in my view, there is a substantial issue as to whether in refusing the Form 15 for lodgement the registrar was relevantly performing an act as a 'Court officer' within the purview of s 36.
The Attorney-General also raised issues as to the availability of the consequential declaratory relief that the plaintiff sought.
Those three additional questions only fall for determination if the plaintiff is successful on one of the two immediate issues for determination. Accordingly, it is convenient to first consider Issue 1 and Issue 2.

Legal framework

Review orders under s 36 of the Magistrates Court Act 2004 (WA)

In Hemmett v Market Direct Group Pty Ltd[2] I described the legal framework relevant to an application for a review order under s 36 of the Magistrates Court Act 2004 (WA). I will not repeat what was said in Hemmett v Market Direct Group Pty Ltd. I incorporate that description in these reasons and do not consider it necessary to provide any further background as to the general legal framework before addressing the legal questions that arise in the present case.
[2] Hemmett v Market Direct Group Pty Ltd [2018] WASC 214 [27] - [30], [34] - [41].
I should, however, mention that in Hemmett v Market Direct Group Pty Ltdreference was made to the possibility of combining the usual two stages under s 36 so that the application for a review order and for relief under s 36(4) are heard together.[3]
[3] Hemmett v Market Direct Group Pty Ltd [38].
Prima facie that was an appropriate course for this application. There were no factual disputes. The legal issues were well defined. The proper disposition of the application was dependent on the resolution of those legal issues. Counsel for the plaintiff accepted that this was an appropriate matter in which to combine the two stages. So too did counsel for the Attorney-General. Accordingly, that is the approach I intend to take.

Rules in the Magistrates Court as to filing and service

Rule 9 of the Magistrates Court (General) Rules 2005 (WA) provides that a registrar may refuse to accept for lodging any form that does not contain the information required by the form and any document that does not comply with rules of court made by the Court or with any other written law.
Rule 101 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) concerns the manner in which documents are to be served. It provides:
101. How documents served
(1)Unless personal service is required under these rules, if a person wants to serve a document on someone, the person must do so:
(a)by delivering it, or sending it by pre-paid post:
(i)if an address has been provided under rule 102, to that address; or
(ii)if an address has not been provided under rule 102, to the party's usual or last known place of residence or principal or last known place of business, as the case may be, or the party's usual postal address;
or
(b)subject to the Magistrates Court (General) Rules 2005, by email or fax.
(2)In order to serve a document on someone personally, a person must do so in accordance with Division 2.
(3)Nothing in this rule prevents a person from consenting to being served in a manner other than in accordance with this rule.
Rule 102 concerns the provision of an address for service in documents lodged with the Court. It provides:
102.Address for service in lodged documents
(1)A document lodged in relation to a case must contain a residential or business address for service.
(1A)The address for service specified on the document is to be taken to be the party's address for service under this Division until:
(a)if the document specified the address of a lawyer under subrule (5), the lawyer lodges a notice in the approved form:
(i)stating that the lawyer no longer acts for the party; and
(ii)specifying the party's address for service under subrule (2), (3) or (4), as the case requires, or any new address for service under subrule (5) that is known to the lawyer;
or
(b)a notice of change of address is lodged under subrule (6).
(2) If the party lodging the document is an individual who is not represented by a lawyer, the address for service must be the usual place of residence or principal place of business address or the postal address of the individual.
(3A) A party who is an individual not represented by a lawyer and who provides a postal address as an address for service must also provide the Court and each of the other parties details of the usual place of residence or principal place of business address of the individual.
(3)If the party lodging the document is a partnership that is not represented by a lawyer, the address for service must be the principal place of business of the partnership.
(4)If the party lodging the document is a corporation that is not represented by a lawyer, the address for service must be the registered office or principal place of business of the corporation.
(5)If the party lodging the document is represented by a lawyer, the address for service must be the principal place of business of the lawyer or the lawyer's number (if any) at a document exchange approved by the Chief Magistrate.
(6)If a party's address for service under this rule changes after the lodgment of documents in relation to a case, the party must lodge and serve a notice of change of address as soon as practicable after the address has changed.
(7)The notice of change of address must be in the approved form.
As contemplated by r 101(1)(b) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA), the Magistrates Court (General) Rules 2005 (WA) provide for electronic service. Rule 13 provides that:
13. Electronic address for service
(1) A person may give an electronic address for service in accordance with this rule.
…
(3) A person who is not registered by the Court's website as a person authorised to lodge documents electronically may give an email address as an address for service by providing:
(a)a residential or business address; and
(b)an email address at which documents may be given to, or accepted on behalf of, the person.
(4)If a lawyer practises in a business with one or more other lawyers or people:
(a)any fax number provided under subrule (2) must be the fax number of the business and not that of the lawyer personally; and
(b)any email address provided under subrule (3) must be the email address of the business and not that of the lawyer personally.
…
(6)A lawyer, or the business for which a lawyer works, that has a business address in Australia and is registered by the Court's website as a person authorised to lodge documents electronically may give an email address as an address for service by providing:
(a)a residential or business address; and
(b)an email address that is the email address of the lawyer or business provided in connection with that registration.
(7)A person who under this rule provides an address for service that is a fax number or an email address is to be taken to consent to being served with documents by fax at that fax number, or as an attachment to an email sent to that email address, as the case may be.
Notably, where an email address is given as an address for service r 13 still contemplates the person providing a residential or business address for service together with the email address (r 13(3) and r 13(6)).
Rule 14 of the Magistrates Court (General) Rules 2005 (WA) then deals with service by fax or email. If the Rules require a person to serve a document it may be served by sending the document as an attachment to an email where a party has provided an email address under r 13 (r 14(1)(b)). Provision is made for the time at which a document served by email is taken to have been served (r 14(5)). There are, however, various documents that cannot be served by email even where a party has given an electronic address for service under r 13. A document that cannot be lodged electronically under r 12(2) or r 13A cannot be served by email (r 14(2)).

Rule 101 and r 102 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) and r 13 of the Magistrates Court (General) Rules 2005 (WA) were considered by Staude DCJ in Li v Cox. His Honour stated that, having regard to the express provisions of r 101 and r 102, r 13 applies only where an email address has been given as an address for service in addition to a residential or business address.[4] In other words, one must provide a residential or business address as well as an electronic email address for service.

The Magistrates Court's rule making powers
[4] Li v Cox [2012] WADC 97 [34].

The Magistrates Court (Civil Proceedings) Rules 2005 (WA) are made under the Magistrates Court (Civil Proceedings) Act 2004 (WA). Section 47 of that Act provides that rules of court for the purposes of the Act are to be made by the Court in accordance with s 39 of the Magistrates Court Act 2004 (WA). The rules may regulate the practice and procedure to be followed in the Court and its registries either generally or in particular cases.[5] Without limiting the general rule making power, s 48(2)(f) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) provides that the rules may, among other things, regulate the lodging of documents with the Court and the service of documents on parties and others.
[5] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 48(1).
Section 39 of the Magistrates Court Act 2004 (WA) provides that the Court may make rules of court. The rules are to be made by the Chief Magistrate and at least three other magistrates, one of whom is to be a Deputy Chief Magistrate if a person is appointed to that office. (As the application raised the allegation that r 102 was invalid due to inconsistency, the Chief Magistrate of the Magistrates Court was formally joined as second defendant to the proceedings.)
Section 40(1) of the Magistrates Court Act 2004 (WA) provides that the rules of court may deal with any matter that is required or permitted by the Act to be dealt with by rules of court or that is necessary or expedient for the Court to operate efficiently, economically and expeditiously. Section 40(2)(c) provides that, without limiting subsection (1), the rules may, among other things, regulate the practice and procedure to be followed in the Court and its registries. Section 40(2)(d) permits the rules to provide for documents to be lodged with or issued by the Court, or served, in an electronic form.
Section 40(3) of the Magistrates Court Act 2004 (WA) provides:
The rules of court must not be inconsistent with:
(a)this Act; or
…
(c)the Magistrates Court (Civil Proceedings) Act 2004; or
…
Section 40(3) of the Magistrates Court Act 2004 (WA) is thus a more specific statutory provision echoing the general provision as to the power to make subsidiary legislation in s 43(1) of the Interpretation Act 1984 (WA). There it is provided that subsidiary legislation must not be inconsistent with the provisions of the written law under which it is made, or with any Act, and subsidiary legislation will be void to the extent of any such inconsistency. Section 40(3) of the Magistrates Court Act 2004 (WA) expressly directs attention to rules of the Magistrates Court being invalid due to inconsistency with the Magistrates Court (Civil Proceedings) Act 2004 (WA).
The Magistrates Court (Civil Proceedings) Act 2004 (WA) provides at s 13:
13. Court's duties in dealing with cases and making rules
(1)In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring:
(a)that cases are dealt with efficiently, economically and expeditiously; and
(b)so far as is practicable, that the parties are on an equal footing; and
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
Otherwise, under s 14 of the Magistrates Court (Civil Proceedings) Act 2004 (WA), the rules of court are to set out the procedure to be followed in a case.

Parties' contentions

Plaintiff's submissions

The plaintiff contends that the proper construction of r 102 is that the requirements therein are a subset of r 101(1)(a) - ie the requirements of r 102 only apply where r 101(1)(a) applies. On that construction, when r 101(1)(b) applies and a person serves a document by email or fax, the requirements in r 102 would not apply.[6] It is said that construction gives meaning to the use of the words 'if' and 'or' in r 101(1).[7]
[6] Plaintiff's Submissions dated 6 June 2018 par 2 (Plaintiff's Submissions).
[7] Plaintiff's Responsive Submissions dated 17 August 2018 par 21 (Plaintiff's Responsive Submissions).
The plaintiff supports its construction of r 102 by suggesting that any other construction would produce improbable or absurd results.[8] For example, it is said that it would be contradictory for r 101 to permit the use of email for service in circumstances where r 102 requires a physical address for service be specified on court forms; and it would be inconsistent to require as much when r 102(3) would allow a party to serve at the physical address despite an agreement to the contrary.
[8] Plaintiff's Submissions par 2(x) - (y); Plaintiff's Responsive Submissions par 21(e).
The plaintiff contends that its construction better promotes the purpose and object of the Rules as provided for in s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA); it is said that the plaintiff's construction better achieves the objective of dealing with cases justly.[9] The plaintiff also says that the contrary construction of r 102 would only benefit the Magistrates Court and, as that would be beyond power, the plaintiff's preferred construction must be the correct reading of the rule.[10]
[9] Plaintiff's Submissions par 2(i); Plaintiff's Responsive Submissions par 21(f).
[10] Plaintiff's Submissions par 2(m) - (t).
The plaintiff says that the decision in Li v Cox is incorrect in that r 13 cannot apply because that rule deals with the electronic lodgement of documents through the Magistrates Court website, but such facility has not been made available for civil matters.[11]
[11] Plaintiff's Submissions par 2(i) - (k).
In the alternative to its construction argument, the plaintiff contends that if r 102(5) requires nomination of a business address for service then it is void as being inconsistent with s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).[12] (In oral submissions counsel for the plaintiff also relied on s 40(2)(d) of the Magistrates Court Act 2004 (WA).) It is said that it would be unjust not to allow legal representatives to specify solely an email address for service because such an approach would fail to ensure that cases are dealt with efficiently, economically and expeditiously. In making that argument the plaintiff points to the efficiency and cost effectiveness of service by email.[13]
[12] Plaintiff's Submissions par 3.
[13] Plaintiff's Submissions par 3(c) - (d); Plaintiff's Responsive Submissions par 21(e) - (f).
More generally, effectively in support of both contentions, the plaintiff submits that a requirement to specify a physical address for service is out of step with industry practice and presents a barrier for lawyers who do not have an office address - with a flow-on effect as to the costs of legal practice and access to justice for members of the public.[14]

Attorney-General's submissions
[14] Plaintiff's Submissions par 2(l), (u) - (aa); Plaintiff's Responsive Submissions par 21(e).

As mentioned, at the hearing I granted leave for the Attorney‑General to intervene in the application as amicus curiae. The plaintiff did not oppose the grant of leave.
The Attorney-General's submissions contend simply that the Form 15 did not contain the information required by r 102(2) and (5) and that the registrar therefore had the power under r 9 of the Magistrates Court (General) Rules 2005 (WA) to refuse to accept the form for lodging.[15]
[15] Attorney-General's Submissions dated 8 August 2017 pars 42 - 44 (Attorney-General's Submissions).
With respect to the plaintiff's inconsistency argument, the Attorney-General submits that even if one accepts that service by email is more efficient, economical and expeditious in some cases, it is not clear how that demonstrates that the requirement to specify an address for service on a court document is inconsistent with the s 13 requirement to ensure that cases are dealt with justly. This is said to be particularly the case considering that, subject to meeting minor requirements, parties are able to avail themselves of the benefits of service by email pursuant to r 13(2), (3), (5) and (6) of the Magistrates Court (General) Rules 2005 (WA).

Disposition

Issue 1: The proper construction of r 102 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA)

The plaintiff seeks to construe r 102 as applying only to the extent that r 101(1)(a) applies. That is, r 102 is said to apply only where there is to be physical service in accordance with r 101(1)(a). On the plaintiff's construction it may simply specify an email address for service - meaning there could be no physical service in accordance with r 101(1)(a) - and in that event r 102 does not apply.
The principles applicable to the task of statutory construction are well established. I have described my understanding of those principles elsewhere.[16] In accordance with those principles, primacy must be given to the statutory text, although the text must be considered in context, and having regard to the purpose or object of the statutory provision.
[16] AVWest Aircraft Pty Ltd v Clayton Utz [2018] WASC 167 [49] - [53].
The text of r 102 is clear and admits of no possible constructional choice.
Rule 101 and r 102 are both within Pt 17 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) dealing with the serving of documents. However, the two rules are concerned with separate subjects and have an independent operation.
Rule 101 is concerned with how documents are served. A distinction is drawn between non-personal service (r 101(1)) and personal service (r 101(2)). However, the rule contemplates that a person may consent to being served in a manner other than in accordance with the rule (r 101(3)). Where personal service is required it must be effected in accordance with Div 2. But where non-personal service is permitted r 101(1) provides for the means by which service may be effected.
Rule 101(1) allows the person effecting non-personal service a variety of means to do so. In particular service may be effected:
•physically, by delivery or pre-paid post, to an address as notified under r 102 (or, if no such address is provided, to other possibilities as specified) (r 101(1)(a)); or
•by email or facsimile - but only where the person to be served has given an electronic address for service under r 13 of the Magistrates Court (General) Rules 2005 (WA) (r 101(1)(b)).
Such an ordinary and natural reading of r 101(1) is consistent with s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). There is nothing unjust in giving a person who wants to serve a document a choice as to the means by which he or she will do so. Enabling physical service in all cases also assists in putting the parties on an 'equal footing'. There may be some parties who do not have ready access to email or who would prefer to effect service by non‑electronic means.
Importantly, r 101 contemplates that the person effecting non‑personal service may choose the means by which service is to be effected.
That choice may be limited if the other party has not given an electronic address for service in accordance with r 13 of the Magistrates Court (General) Rules 2005 (WA). In the absence of an electronic address for service the available means of service will be limited to service by delivery or pre-paid post. But, where an electronic address for service is provided, r 101(1) contemplates that the person effecting service may nevertheless choose to effect service physically by delivery or pre-paid post.
This natural and ordinary reading of r 101 gives appropriate meaning to the use of the word 'or' - it signifies the choice available to the person who wants to serve a document on someone. Contrary to the plaintiff's contention, I do not accept that the references to 'if' in r 101(1)(a) are of significance in evincing a statutory intention contrary to the literal meaning of r 101. They do not indicate a choice as to whether an address is provided under r 102. The word is descriptive of the mutually exclusive possibilities of whether or not an address has been provided under r 102.
Thus r 102 is not a sub-set of r 101(1)(a). It has an independent field of operation and a different, although related, subject matter to r 101. Rule 102 is not concerned with how someone who wants to serve a document is to effect service. Instead, r 102 deals with provision of an address for service thereby facilitating the choice under r 101(1) where non-personal service is available. In that regard r 102 is an important adjunct to r 101(1). Compliance with r 102 is necessary to facilitate the choice as to means of service envisaged by r 101(1). To that end r 102 requires in unequivocal terms that a document lodged in relation to a case must contain a residential or business address for service (r 102(1)). Sub-rules 102(2) - (5) then detail what address for service is to be provided depending on whether the party is represented by a lawyer and, if not, the type of entity involved.
Accordingly, on its proper construction r 102 stands apart from r 101(1). In then identifying the requirements of r 102(1) and (5), effect must be given to the mandatory and clear language that has been used by the rule-makers. It is simply not possible to read out the use of the word 'must' in r 102(1).[17]
[17] Cf Interpretation Act 1984 (WA) s 56(1). All the more so when the Magistrates Court (Civil Proceedings) Rules 2005 (WA) generally distinguish between that which is mandatory (using the word 'must') and that which is discretionary (using the word 'may') - see eg r 9.
I do not accept that this natural and ordinary meaning of r 102 suffers from any vice of construing the rule in isolation. To the contrary, it involves reading r 102 in its context and together with r 101. By contrast, the plaintiff's preferred construction would deprive r 101(1) of its manifest purpose or object of providing to a person seeking to effect non-personal service the means to choose how service is to be effected - a purpose or object which, contrary to the plaintiff's contention, is not an improper purpose of benefitting the Magistrates Court.
Apart from r 101, the natural and ordinary meaning of r 102 is consistent with the terms of r 13 of the Magistrates Court (General) Rules 2005 (WA). Those terms do, in my opinion, contemplate that an email address for service will be given as an address for service in addition to a residential or business address. In that regard the observations of Staude DCJ in Li v Cox are correct. Those observations are not gainsaid by whether or not electronic lodgement is unavailable for civil matters in the Magistrates Court. His Honour's comments, and the relevant parts of the rules, were dealing with service rather than lodgement.
Giving r 102 an independent operation, and applying the clear and mandatory terms of r 102(1) and (5) read literally as requiring a residential or business address for service even if an electronic address for service is also provided, does not lead to inconvenient or improbable outcomes. Physical service has been the norm for centuries. Electronic service is a relatively new phenomenon. It is not remarkable that, even though some parties might have a preference to effect or receive service electronically, the Magistrates Court may consider it appropriate that a party wanting to serve a document be provided with the means to effect service physically as well as electronically.
In any case, as counsel for the Attorney-General submitted, inconvenience or improbability of result may assist the court in preferring a construction other than a literal interpretation which is reasonably open and more closely conforms to the legislative intent.[18] That is not the present case. There is no constructional choice. The plaintiff's preferred construction is not reasonably open. The terms of r 102 are clear, the operation of r 101 and r 102 together is obvious, and the plaintiff's approach simply subverts the choice afforded to the party wanting to serve a document so as to promote an outcome that the plaintiff considers to be desirable.
[18] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 [11], [12].
Accordingly, I reject the plaintiff's contention that in lodging the Form 15 it was permissible, as a matter of the proper construction of the Magistrates Court (Civil Proceedings) Rules 2005 (WA), to specify solely an email address for service. To the contrary, r 102 was applicable and it was necessary in accordance with r 102(1) and (5) that the Form 15 provide a physical address for service, being Justice Legal's principal place of business or a number at a document exchange service approved by the Chief Magistrate.

Issue 2: Whether r 102 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) is invalid

The plaintiff's invalidity argument was based on s 40(3) of the Magistrates Court Act 2004 (WA). Section 40(3), like s 43(1) of the Interpretation Act 1984 (WA), would invalidate r 102 if it were 'inconsistent' with the Magistrates Court Act 2004 (WA) or the Magistrates Court (Civil Proceedings) Act 2004 (WA). As to inconsistency, counsel for the plaintiff pointed to two provisions: s 40(2)(d) of the Magistrates Court Act 2004 (WA) and s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
Neither the plaintiff nor the Attorney-General directed me to any authorities which have considered what was required for such 'inconsistency' leading to invalidation of rules of a court.
It is common for statutory provisions empowering the making of delegated legislation to state that a relevant officeholder may make regulations 'not inconsistent with this Act' for certain nominated purposes. In this context the word 'inconsistent' is a strong term.[19] Inconsistency arises where the enactment deals specifically with a subject matter and the regulations purport to deal with the same subject matter in a different way.[20] There is inconsistency where regulations vary or depart from the provisions of an Act or go outside the field of operation that the Act marks out for itself.[21] Inconsistency may also arise where a regulation limits or negates a right conferred by an Act.[22]
[19] Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 [86].
[20] Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245, 250; Morton v Union Steamship of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402, 410, 412.
[21] Morton v Union Steamship of New Zealand Ltd (410).
[22] Edwards v Olsen [1996] SASC 5703; (1996) 67 SASR 266, 276 - 277; Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 [48], [51].
The question is whether the regulation alters, impairs or detracts from the provisions of the Act.
An important consideration in judging inconsistency is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.[23] Inconsistency may be found where the impugned regulation negates, and is thereby inconsistent with, the statutory scheme established by the primary legislation.[24]
[23] Morton v Union Steamship of New Zealand Ltd (410).
[24] Plaintiff M47/2012 v Director-General of Security [71].

The authorities are mostly concerned with whether regulations are invalid, rather than rules made by courts. However, as is shown by Harrington v Lowe,[25] the same approach is employed where the contention is that a rule of court is invalid due to alleged inconsistency with the Act pursuant to which the judges of the court have made rules as to practice and procedure. In Harrington v Lowe it was held that rules of court could not vary or depart from the positive provisions of the enabling Act by imposing a regime inconsistent with the Act.
[25] Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311.
The plurality stated:
The power conferred … makes provision for or in relation to practice and procedure, and matters and things incidental to such practice and procedure or necessary or convenient to be prescribed for the conduct of court business. These are broad but limited terms. The power does not authorise the making of regulations which (i) vary or depart from, and thus are inconsistent with, the positive provisions of the Act … or (ii) go beyond the field of operations marked out by the Act …[26] (citations omitted)
[26] Harrington v Lowe (324 - 325).
There is no relevant inconsistency between r 102 and s 40(2)(d) of the Magistrates Court Act 2004 (WA). Section 40(2)(d) provides that rules may provide for documents to be lodged with the court or served in an electronic form. The provision is facultative only; it permits the court to make rules providing for electronic lodgement and service. However, nothing in s 40(2)(d) prohibits a rule that requires that documents lodged with the court contain a residential or business address to facilitate physical service for those who choose to effect service by non-electronic means.
Nor, in my view, is there any relevant inconsistency - in the sense of variation or departure from the provisions of the Act or going outside the field of operation of the Act - between r 102 as I have construed its operation and s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
The plaintiff's argument for inconsistency with s 13 directed attention to whether in making r 102 (thereby providing for a requirement that parties give a residential or business address for service in lodging a document) the Magistrates Court was ensuring that cases are dealt with 'justly'. The suggestion was that the Court was not ensuring that cases are dealt with efficiently, economically and expeditiously. The plaintiff contended that service by email is more efficient, economical and expeditious than service by physical delivery and that cost savings would arise if lawyers did not have to provide a physical address for service.
Properly understood, the plaintiff's contention is one which challenges the choice evinced by r 102 rather than whether that choice was one which was open to the relevant officers of the Magistrates Court to make. The plaintiff contends for inconsistency because it considers that limiting service to email is more just and more efficient, economical and expeditious.
That might be so in some cases. It will not be in others. It cannot be assumed that all parties in the Magistrates Court will have ready access to email. And s 13, in referring to its requirement that cases are to be dealt with justly, does not only refer to the requirement that cases are to be dealt with efficiently, economically and expeditiously. Section 13(2)(b) also refers to ensuring that, so far as is practicable, the parties are on an equal footing. In that context it is readily understandable why r 101(1) and r 102, when read together, contemplate provision of a residential or business address for service so as to facilitate physical service in all cases.
At a more basic level, however, in contending that service by email is more efficient, economical and expeditious, and thereby more just, the plaintiff fails to address whether what is provided for by r 101(1) and r 102 can be said to be inconsistent with s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
The question is not whether some other regime might be more just or more efficient, economical and expeditious. The Magistrates Court is empowered to make rules regulating its practice and procedure including regulating the lodging of documents with the Court and the serving of documents on parties. Within that remit numerous choices are open to those who make the relevant rules for the Magistrates Court. Inconsistency only arises where the choice arrived at is not open because either: (1) the rule varies or departs from - so as to alter, impair or detract from - the provisions or scheme of the enabling legislation; or (2) the rule goes beyond the field of operations marked out by the enabling legislation.
The latter is plainly not the case. Rules such as r 101(1) and r 102 are within the type of rules contemplated by s 48(2)(f) of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
Nor can it be found that r 101(1) and r 102 are inconsistent with s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). The operation of those rules, on their proper construction, is not unjust in the sense that those rules vary or depart from s 13. A requirement that a party lodging a document must include a residential or business address for service, thereby facilitating non-personal service, cannot be characterised as being incompatible with ensuring that cases are dealt with justly. Nor is it inconsistent with ensuring that cases are dealt with efficiently, economically and expeditious. Any contention to the contrary is fanciful. Even where personal service is not required, and a party might be able to effect service electronically, physical service is unremarkable. The requirement that a document for lodgement contain a residential or business address for service involves no variation or departure from, but rather is consistent with, the objects enshrined in s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
Put simply, r 102(1) and (5) Magistrates Court (Civil Proceedings) Rules 2005 (WA), in requiring that the Form 15 provide a physical address for service, does not undermine or negate the terms of s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) or the scheme of that Act and the Magistrates Court Act 2004 (WA) more generally. Rule 102 is not invalid for reasons of inconsistency.

Conclusion as to application for review order

I have found against Justice Legal on Issue 1 and Issue 2. On its proper construction r 102 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) does require that where a party is represented by a lawyer a document lodged in relation to a case must contain a business address for service in accordance with r 102(5). In so operating r 102 is not invalid as being inconsistent with the provisions of the Magistrates Court (Civil Proceedings) Act 2004 (WA). In particular r 102(1) and (5) are not inconsistent with either s 13 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) or s 40(2)(d) of the Magistrates Court Act 2004 (WA).
The registrar acted correctly in not accepting the Form 15 for lodgement on 25 January 2018. Accordingly, the further issues that have been identified as to the making of a review order under s 36 of the Magistrates Court Act 2004 (WA) need not be considered.
I have determined the issues on a final basis, rather than the usual two stage approach on a s 36 review application, due to the agreement of counsel for the plaintiff and counsel for the Attorney-General that this was an appropriate course to take. If, however, I had adopted the usual approach, I would have not made an initial order under s 36(1) of the Magistrates Court Act 2004 (WA). For the reasons I have given I am not satisfied that either Issue 1 or Issue 2 amounted to an arguable case that had reasonable prospects of success.

Issue 3: Remittal of the District Court appeal

Procedurally there were significant difficulties with the application to remit District Court appeal 27 of 2018 to this court. The plaintiff in the Magistrates Court action has not been joined to the appeal. Nor has notice of the remittal application been provided to the plaintiff to the Magistrates Court action.
In those circumstances I would not, as a matter of discretion, make an order that the District Court appeal be remitted to this court.
There are, however, additional problems. The rationale for remittal was that the District Court appeal would be heard with the application for a review order. The application for a review order will be dismissed. There is thus no point in this court remitting the District Court appeal to this court to be heard with the application for a review order.
Nor, in my view, can it be said that the District Court appeal is on all fours with the review application. The review application seeks to impugn the registrar's decision of 25 January 2018. The District Court appeal originates from the registrar's decision of 2 February 2018. So far as the District Court appeal is by way of rehearing[27] there are additional merits issues that might need to be considered in relation to the District Court appeal.
[27] Schaefer v Department of Housing [2018] WADC 88 [3].
Most importantly, the issues raised by the District Court appeal are not of such a magnitude that they ought to be heard in this court. There is no feature of complexity or difficulty which makes it appropriate that the District Court appeal be heard and determined in this court.[28]
[28] Cf Love v KWS Capital Pty Ltd [2013] WASC 466 [6] - [7].
Accordingly, even if the procedural issues I have referred to did not exist, I would not have exercised my discretion to remit the District Court appeal to this court. For the reasons I have given it is not in the interests of justice to do so. The District Court is the more appropriate place for the hearing of the appeal.
The application to remit District Court appeal 27 of 2018 to this court will be dismissed.

Conclusion and orders

Both the application for a review order under s 36 of the Magistrates Court Act 2004 (WA) and the application to remit District Court appeal 27 of 2018 to this court have been unsuccessful.
I will order that:
(1)The plaintiff's application under s 36 of the Magistrates Court Act 2004 (WA) for a review order in relation to the registrar's decision on 25 January 2018 to refuse to accept for lodgement a Form 15 in Magistrates Court action 17515 of 2016 on the ground that it did not contain a residential or business address for service in accordance with r 102(1) and (5) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) is dismissed.
(2)The plaintiff's application to remit District Court appeal 27 of 2018 to this court for hearing is dismissed.
The Attorney-General sought leave to appear as amicus curiae. Leave was not opposed. Non-opposition was undoubtedly partly informed by the fact that the Attorney-General's written submissions provided that it did not seek any order as to costs. Accordingly, the appropriate costs order is that there is no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CC
ASSOCIATE TO JUSTICE VAUGHAN
29 AUGUST 2018