Kepert v City of Melville
[2023] WADC 123
•20 OCTOBER 2023
`
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KEPERT -v- CITY OF MELVILLE [2023] WADC 123
CORAM: PALMER DCJ
HEARD: 21 SEPTEMBER 2023
DELIVERED : 20 OCTOBER 2023
FILE NO/S: APP 23 of 2023
BETWEEN: STEPHEN KEPERT
Appellant
AND
CITY OF MELVILLE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE DARGE
File Number : FRE/MINOR/707/2022
Catchwords:
Minor case - Application to strike out appeal - Section 32(3)(b), s 43(3) and s 43(4) of the Magistrates Court (Civil Proceedings) Act 2004 (WA)
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Result:
Grounds of appeal struck out
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms P A Honey |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
AL v The Queen [2017] NSWCCA 34; (2017) 266 A Crim R 1
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 [16]; (1983) 44 ALR 607
Brockway v Pando [2000] WASCA 192; (2000) 22 WAR 405
Browne v Dunn (1893) 6 R 67
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Currie v Misa (1875) LR 10 Exch 153
Duluxgroup (Australia) Pty Ltd v Chapple [2023] WASCA 83
Kirk v Industrial Relations Commission of New South Wales Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lord Buddha Pty Ltd (in liq) v Harpur [2013] VSCA 101; (2013) 41 VR 159
Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1
Ninan v National Australia Bank [2014] WADC 128
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501
Stilk v Myrick (1809) 170 ER 1168
Titelius v Crowe [2017] WADC 116
Triplett v Baddeley [2018] WADC 33
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] 2 WLR 1153
Wise v Proprietors of Strata Plan 21513 [2009] WADC 115
PALMER DCJ:
Introduction
This is an application by the Respondent, the City of Melville (City), to strike out this Appeal (Strike Out Application).
The Appellant is Mr Kepert. Mr Kepert appeals from a judgment given by Magistrate Darge on 16 May 2023, following the trial of Mr Kepert's Minor Case Claim against the City in the Magistrates Court at Fremantle (Magistrates Court Proceedings).[1]
[1] Magistrate's Court Lower Court File, page 34 (Magistrate's Court File).
In the Magistrates Court Proceedings, Mr Kepert sought an order that the City pay two invoices rendered by his solicitors totalling $7,617.50.[2] Mr Kepert was partially successful. The learned magistrate gave judgment for Mr Kepert in relation to the first of his solicitor's invoices but not the second. Mr Kepert appeals against the learned magistrate's refusal to order payment of the second invoice. The amount of that invoice was $4,719.
[2] Magistrate's Court File, page 390, Minor Case Claim, Claimant's Summary of Facts, par 3,
In its Notice of Respondent's Intention dated 10 July 2023, the City sought orders striking out the Appeal.
On 25 July 2023, orders were made for the Strike Out Application to be listed before a judge in chambers. The Appeal has not yet been listed.
The factual background
The legal fees incurred by Mr Kepert
Between 2017 and 2021, Mr Kepert was a member of Melville City Council (Council).[3]
[3] Exhibit A, Witness Statement of Stephen Kepert dated 13 January 2023 (Kepert Statement), par 1.
On 14 May 2021, the Chief Executive Officer of the City referred Mr Kepert to the State Administrative Tribunal in relation to a perceived non-compliance with orders from the Local Government Standards Panel (SAT Proceedings).[4]
[4] Kepert Statement, par 3.
The City has in place a policy titled, Council Policy CP-017 Legal Representation Policy Elected Members and Employees (Council Policy CP-017) pursuant to which members of the Council may be entitled to reimbursement of their legal fees.[5]
[5] Kepert Statement, Attachment A.
At a meeting of the Council held on 22 June 2021, the Council resolved to provide Mr Kepert with assistance to pay legal fees to a maximum value of $10,000, subject to certain conditions set out in the resolution (First Resolution).[6]
[6] Kepert Statement, Attachment B.
On or about 23 June 2021, Mr Kepert retained Cornerstone Legal to act for him in the SAT Proceedings.[7]
[7] Kepert Statement, par 11.
At a Council meeting held on 20 July 2021, the Council passed a resolution purporting to rescind the First Resolution (Second Resolution).[8]
[8] Exhibit B.
On 3 September 2021, Cornerstone Legal issued Mr Kepert two invoices for the work it had done. The first invoice was for work undertaken in the period between 30 June 2021 and 19 July 2021 and was in the sum of $2,898.50 (First Invoice).[9] The second invoice was for work undertaken in the period between 5 August 2021 and 3 September 2021 and was in the sum of $4,719 (Second Invoice).[10]
[9] Kepert Statement, Attachment D1.
[10] Kepert Statement, Attachment D2.
Mr Kepert paid both invoices and sought reimbursement from the Council.[11] The City refused to pay Mr Kepert's invoices.[12]
The Magistrates Court Proceedings
[11] Kepert Statement, pars 21 - 22.
[12] Kepert Statement, par 23.
The Magistrates Court Proceedings were commenced on or about 2 September 2022. The claim made by Mr Kepert in those proceedings was set out in a document described as the 'Claimant's Summary of Facts'.[13]
[13] Magistrate's Court File, pages 390 - 400.
In the Claimant's Summary of Facts, Mr Kepert sought to invoke both the civil and criminal jurisdiction of the Magistrates Court. Paragraph 1 of the Claimant's Summary of Facts referred to s 6 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Magistrates Court Civil Proceedings Act) and the court's jurisdiction to deal with an unpaid debt and seized property.[14] Paragraph 2 of the Claimant's Summary of Facts referred to s 11(2) of the Magistrates Court Act 2004 (WA) (Magistrates Court Act).[15]
[14] Magistrate's Court File, page 390, par 1.
[15] Magistrate's Court File, page 390, par 2.
The Claimant's Summary of Facts then set out various allegations made by Mr Kepert regarding the legal fees he incurred, claims associated with a laptop that he alleged had been seized by the City and alleged criminal conduct on the part of employees of the City.[16] With regard to the payment of his legal fees, the Claimant's Summary of Facts seemed to allege a claim based in contract. The Claimant's Summary of Facts alleged that:[17]
21.Despite the above, the City approved the funding for the legal defence at the meeting via motion M21/5846 ('the offer').
22.The offer was accepted ('the acceptance') by [Mr Kepert] upon the offer being made by the City.
23.The offer and the acceptance form the agreement between the parties ('the agreement').
[16] Magistrate's Court File, pages 390 - 400.
[17] Magistrate's Court File, page 393.
In par 70 of the Claimant's Summary of Facts, Mr Kepert sought as relief payment from the City of the legal fees that he had incurred.
On 19 September 2022, the City filed a Response to Minor Case Claim (Response).[18] In the part of the Response dedicated to setting out the City's response to Mr Kepert's claim, the City said about the claim for legal fees that:[19]
15.On 25 June 2021 at 12:45am the [City] advised the Mayor and Elected Members, including [Mr Kepert], that a notice of recission had been received and would be considered at [sic] Council Meeting to be held 20 July 2021.
16.At the Ordinary Meeting of Council held 20 July 2021 Item 16.1 Recission Motion - Request for Legal assistance - Elected Member, the Council resolved to rescind the decision of the Special Meeting of Council Item M21/5846 held 22 June 2021.
17.Despite being notified of the Proposed Notice of Recission Motion, [Mr Kepert], engaged legal representation that was not in accordance with the provisions of the CP-017- Legal Representation Policy Elected Members and Employees.
18.It is the [City's] understanding that [Mr Kepert] did not engage Cornerstone Legal, who is not a member of the WALGA Panel of Legal Service Providers, until 30 June 2021, 6 days after [Mr Kepert] was advised of the Proposed Notice of Recission Motion.
[18] Magistrate's Court File, pages 14 - 16.
[19] Magistrate's Court File, pages 15 - 16.
The parties to the Magistrates Court Proceedings also filed a Statement of Claim[20] and a Defence.[21] Paragraphs 12 to 14 of the Statement of Claim pleaded an agreement in similar terms to that set out in pars 21 to 23 of the Claimant's Summary of Facts.[22] Paragraphs 11 to 13 of the Defence did not admit those allegations.[23] Paragraph 21 of the Defence pleaded that the funding was rescinded.[24]
[20] Magistrate's Court File, pages 18 - 19.
[21] Magistrate's Court File, pages 20 - 25.
[22] Magistrate's Court File, page 18.
[23] Magistrate's Court File, page 21.
[24] Magistrate's Court File, page 21.
On 23 February 2023, the City filed a Statement of Intended Evidence of a Witness for Marten Tieleman, the Chief Executive Officer of the City. In that witness statement, Mr Tieleman said:[25]
[25] Magistrate's Court File, pages 297 - 298.
16.On 25 June 2021 Elected Members, including [Mr Kepert], were advised that a recission motion had been received and [Mr Kepert] was advised that no purchase order would be issued until the recission was considered by the Council.
17.[Mr Kepert] was advised that no further action can be undertaken in relation to the 22 June 2021 resolution to provide financial assistance under Policy CP-017, in accordance with the Meeting Procedure Local Law.
18.At the 20 July 2021 Council Meeting the recission motion was carried by an absolute majority decision.
…
24.The invoices provided by [Mr Kepert] that he is seeking the City of Melville to pay are for works undertaken by Cornerstone legal from 30 June 2012 [sic] to 3 September 2021 …
25.These dates are outside of the time frame when Mr Kepert first applied for assistance under the Policy, notification to [Mr Kepert] of the recission motion, which was upheld, before the Council and positive communication of this decision by Council to [Mr Kepert].
On 28 February 2023, the City filed a Statement of Intended Evidence of a Witness for Sharon Louise Lawton, Senior Claims Consultant with the Local Government Insurance Scheme WA (who appears to have been the City's insurer).[26] In par 13 of Ms Lawton's statement, Ms Lawton repeated much of what Mr Tieleman said and is set out above.[27] In par 15 of her statement, Ms Lawton said:
(a)Mr Kepert has not entered into any agreement with the City by making an application for relief under CP-017;[28]
(b)the recission of the decision to provide assistance to Mr Kepert under CP-017 was appropriate, lawful and conducted in compliance with relevant legislation;[29] and
(c)Mr Kepert has not pleaded that he had entered into a legally binding contract with the City where the City has contracted to pay to Mr Kepert, legal costs incurred.[30]
[26] Magistrate's Court File, page 250, pars 1 - 4.
[27] Magistrate's Court File, pages 252 - 253, pars 13.4, 13.5, 13.11 - 13.13.
[28] Magistrate's Court File, page 254, par 15.1.
[29] Magistrate's Court File, page 254, par 15.3.
[30] Magistrate's Court File, page 254, par 15.4.
In par 16 of her statement, Ms Lawton observed that she did not believe that Mr Kepert had any reasonable prospect of succeeding because:
(a)the facts pleaded by Mr Kepert do not give rise to relief or to a reasonable cause of action;[31]
(b)Mr Kepert has not established a cause of action;[32] and
(c)a failure to afford a benefit under a discretionary administrative policy is not a breach of contract.[33]
[31] Magistrate's Court File, page 254, par 16.1.
[32] Magistrate's Court File, page 254, par 16.2.
[33] Magistrate's Court File, page 254, par 16.3.
In pars 17 and 18 of her statement, Ms Lawton asked that Mr Kepert's claim be struck out.[34]
[34] Magistrate's Court File, page 255.
On 31 March 2023, Magistrate Darge ordered that:
(a)Mr Kepert's claim in relation to the proposed criminal charges and in respect of the laptop be struck out; and
(b)Mr Kepert may continue his claim in respect of the cost of legal representation.[35]
[35] Magistrate's Court File, page 36.
The matter was subsequently set down for trial.
On 24 March 2023, Ms Lawton filed a further statement. In that statement, Ms Lawton submitted that:
(a)in order for the Magistrates Court to have jurisdiction, Mr Kepert must plead a claim that falls within s 6(1)(a) of the Magistrates Court Civil Proceedings Act;[36]
(b)it appeared that Mr Kepert's claim was for breach of a contract between the City and him;[37]
(c)based on Mr Kepert's Summary of Facts, there was no enforceable contract. Ms Lawton referred to cases that noted the requirement of consideration for there to be a contract and referred to the decision in Curriev Misa.[38] She said that that case held that the requirement for consideration is either a detriment incurred by the person making the promise, or a benefit received by the other person and that the person seeking to enforce the promise must have paid, or bound himself to pay, money, parted with goods, spent time in labour, or foregone some profit or legal right;[39]
(d)Mr Kepert, in his role as an elected member, was required to perform certain duties on behalf of the City. She said that the performance of existing duties is not good consideration and she referred to StilkvMyrick[40] and WilliamsvRoffey;[41] and
(e)Mr Kepert had not provided any consideration to the City in exchange for access to financial assistance and Ms Lawton asked the court to determine that it did not have jurisdiction in the matter.[42]
[36] Magistrate's Court File, page 345, par 14.
[37] Magistrate's Court File, page 345, par 15.
[38] Curriev Misa (1875) LR 10 Exch 153.
[39] Magistrate's Court File, page 346, pars 18 - 20.
[40] StilkvMyrick (1809) 170 ER 1168.
[41] WilliamsvRoffey Bros& Nicholls (Contractors) Ltd [1990] 2 WLR 1153 (Williams v Roffey); Magistrate's Court File, page 346, pars 20 - 22.
[42] Magistrate's Court File, page 346, pars 23 - 24.
Ms Lawton also repeated many of the matters set out in her first affidavit, including the matters discussed above.[43]
The trial before Magistrate Darge
[43] Magistrate's Court File, pages 346 - 347, par 25.
A trial of the Magistrates Court Proceedings was held before Magistrate Darge on 16 May 2023. It appears to have lasted about half a day.
Mr Kepert represented himself at the trial.[44]
[44] Magistrates Court transcript (MC ts) 16 May 2023.
The City was represented by Ms Corrine Newman, the City's head of governance.[45] Mr Bruce Taylor, the City's Chief of Staff was also present.[46] Neither Mr Tieleman, nor Ms Lawson attended the trial.[47]
[45] MC ts 2.
[46] MC ts 3.
[47] MC ts 3 - MC ts 4.
Magistrate Darge appropriately[48] began by exploring the possibility of a settlement with the parties.[49] Once he had done this and it was clear that it would not be possible to reach a settlement, the learned magistrate proceeded with the trial.[50]
[48] See s 27 of the Magistrates Court Civil Proceedings Act.
[49] MC ts 5 - MC ts 25.
[50] MC ts 25.
Mr Kepert opened his case by indicating that his claim was based on promissory estoppel and he referred to the High Court's decision in Waltons Stores (Interstate) Ltd vMaher.[51] Mr Kepert then gave evidence which consisted of him tendering his witness statement.[52] Mr Kepert's witness statement was tendered as Exhibit A.[53] The learned magistrate asked Mr Kepert whether there was anything else he wished to say but Mr Kepert indicated that there was not.[54] Ms Newman was then permitted to cross-examine Mr Kepert.[55]
[51] Waltons Stores (Interstate) Ltd vMaher [1988] HCA 7; (1988) 164 CLR 387; MC ts 27.
[52] MC ts 28 - MC ts 29.
[53] MC ts 30.
[54] MC ts 30, final par.
[55] MC ts 30 - MC ts 37.
During Ms Newman's cross-examination of Mr Kepert, an issue arose about the tender of the Second Resolution. The learned magistrate invited Mr Kepert to make any submissions he wished about why the minutes should not be received as a business record under s 79C of the Evidence Act 1906 (WA) (Evidence Act).[56] Mr Kepert said that he did not agree that the minutes were true and correct.[57] Later, he indicated he did not consider the minutes to be a reliable document because they recorded some councillors trying to suspend standing orders.[58]
[56] MC ts 35 - MC ts 37.
[57] MC ts 36.
[58] MC ts 37.
Having heard Mr Kepert's submissions, the learned magistrate resolved to accept the tender of the minutes but indicated that he would take Mr Kepert's submissions into account in considering the weight to be attached to the document. The minutes became Exhibit B.[59]
[59] MC ts 37.
The learned magistrate then permitted Ms Newman to address the court. She called no witnesses and did not seek to tender any of Mr Tieleman's or Ms Lawson's statements.[60] Rather, Ms Newman made submissions addressing the principals of estoppel and the validity and effect of the First and Second Resolutions.[61] As part of her opening, Ms Newman indicated that the City disputed the reasonableness of Mr Kepert's reliance on the First Resolution, given that he knew that the Second Resolution had been proposed before he engaged his solicitors.[62]
[60] MC ts 37 - MC ts 40.
[61] MC ts 38.
[62] MC ts 38, fifth par.
The learned magistrate then invited Mr Kepert to reply to the City's case. Mr Kepert made various submissions in response.[63] During the course of those submissions the learned magistrate expressly invited Mr Kepert to address the court about the significance of the Second Resolution.[64]
[63] MC ts 41 - MC ts 47.
[64] MC ts 42 - MC ts 43.
After Mr Kepert had completed his submissions, the learned magistrate briefly adjourned, before returning to deliver ex tempore oral reasons. The learned magistrate decided that the City should pay the First Invoice but not the Second Invoice because the fees the subject of the Second Invoice were incurred after 20 July 2021 (when the Second Resolution was passed, rescinding the First Resolution). His oral reasons are set out in greater detail at [75] and from [95] below.
In the course of his reasons, the learned magistrate made some observations about the nature of jurisdiction he was exercising. Those observations are set out at [81] below.
The grounds of appeal
There are four grounds of appeal:
1.The Magistrate found that only a portion of the claim should be awarded based on inadmissible evidence presented by various individuals representing the [City].
2.The various individuals who represented the [City] during the proceedings presented untruthful information to the Court which misled the Magistrate into making an erroneous finding with no opportunity given to [Mr Kepert] for cross examination.
3.Part of the Magistrate's finding was beyond the jurisdiction of the Court.
4.[Mr Kepert] was denied natural justice in the proceedings.
The Strike Out Application
The Amended Notice of Respondent's Intention seeks the following orders:
1.The notice of appeal be struck out under rule 57(2)(b) of the District Court Rules 2005 as follows:
aa.Grounds 1 and 2 be struck out pursuant to section 43(3)(a) of the Magistrates Court (Civil Proceedings) Act 2004 as there is no reasonable basis for them.
a.Further or alternatively to sub-paragraph (aa), Grounds 1 and 2 be struck out as they are not permitted pursuant to section 32(3) of the Magistrates Court (Civil Proceedings) Act 2004.
b.Further or alternatively to sub-paragraphs (a) and (aa) above, Ground 2 be struck out pursuant to section 43(3)(d) of the Magistrates Court (Civil Proceedings) Act 2004 as it is based on an assertion that is scandalous or improper.
c.Ground 3 be struck out pursuant to section 43(3)(a) of the Magistrates Court (Civil Proceedings) Act 2004 as there is no reasonable basis for it.
ca.Further or alternatively to sub-paragraph (c), Ground 3 be struck out pursuant to section 43(3)(b) of the Magistrates Court (Civil Proceedings) Act 2004 as it does not have reasonable prospects of succeeding.
d.Ground 4 be struck out pursuant to section 43(3)(a) of the Magistrates Court (Civil Proceedings) Act 2004 as there is no reasonable basis for it.
e.Further or alternatively to sub-paragraph (d), Ground 4 be struck out pursuant to section 43(3)(b) of the Magistrates Court (Civil Proceedings) Act 2004 as it does not have reasonable prospects of succeeding.
2.Further or alternatively to paragraph (1), the notice of appeal be struck out in whole under section 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 because the likely costs of the appeal to the parties would be disproportionate to the amount of the claim which was the subject of the case now on appeal.
…
The relevant Magistrates Court legislation
Magistrates Court Act 2004
Section 4 of the Magistrates Court Act provides that a court of record called the Magistrates Court of Western Australia is established.
Section 6(1) of the Magistrates Court Act provides that a magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including that act and other written laws.
Section 10 of the Magistrates Court Act provides the court's civil jurisdiction is as set out in the Magistrates Court Civil Proceedings Act.
Section 13 of the Magistrates Court Act provides that the court, in exercising its discretion, is to decide all questions of fact and law.
The Magistrates Court Civil Proceedings Act
The Magistrates Court's civil jurisdiction is set out in s 6 of the Magistrates Court Civil Proceedings Act.[65] Section 6(1) of the Act relevantly provides:
[65] By s 9 of the Magistrates Court Act (Act already defined above), the Magistrates Court has the jurisdiction conferred in it by the Magistrates Court Act and by the written laws. Section 10 of the Magistrates Court Act provides that the Magistrates Court's civil jurisdiction is as set out in the Act.
(1)The Court has jurisdiction to deal with -
(a)a claim for an amount of money that is -
(i)a debt or damages, whether liquidated or unliquidated; or
(ii)the whole or a part of the unliquidated balance of a partnership account; or
(iii) the whole or a part of the amount of the distributive share under an intestacy or of a legacy under a will,
where the amount claimed, even if it is a balance after allowing for a payment on account or for any admitted set-off or for any other amount, is not more than the jurisdictional limit; and
(b)a claim that involves an equitable claim or demand where the only relief claimed is the recovery of an amount of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than the jurisdictional limit; and
…
(g)a claim for an indemnity where the indemnity arises from or relates to another claim that is before the Court or that has been heard and determined by the Court.
The procedure to be followed where a matter is a minor case is addressed in pt 4 of the Magistrates Court Civil Proceedings Act. A minor case is a claim within the jurisdiction of the court where the value of the claim is not more than the minor case's jurisdictional limit which is currently $10,000.[66] Part 4 includes s 29 which provides:
…
(3)In dealing with a minor case the Court is to act with as little formality as the Court thinks is reasonable.
(4)When dealing with a minor case the Court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit.
[66] Magistrates Court Civil Proceedings Act, s 3, s 26.
Part 4 also includes s 32 which addresses appeals where a case is a minor case. Section 32(3) of the Magistrates Court Civil Proceedings Act provides that:
Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds -
(a)that the minor case -
(i)was not within the jurisdiction of the Court; or
(ii)was not a minor case; or
(b)that in dealing with the minor case there was a denial of natural justice; or
(c)that the judgment was beyond the Court's jurisdiction.
Part 7 of the Magistrates Court Civil Proceedings Act concerns appeals from the Magistrates Court. Part 7 includes s 43 of the Magistrates Court Civil Proceedings Act. Section 43(1) provides that the section applies to a court (the appeal court) that is dealing with an appeal under s 40, s 41 or s 42 against an order or judgment of another court (the lower court).[67]
[67] The section also applied to a minor case appeal: Ninan v National Australia Bank [2014] WADC 128 [20] (Ninan).
Section 43(3) to s 43(6) of the Magistrates Court Civil Proceedings Act provide:
(3)The appeal court may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.
(4)The appeal court may strike out any ground of the appeal if -
(a)there is no reasonable basis for it; or
(b)it does not have a reasonable prospect of succeeding; or
(c)although it has a reasonable prospect of succeeding, no miscarriage of justice would occur by striking it out; or
(d)it is frivolous, vexatious, scandalous or improper.
(5)The appeal court may make an order under subsection (3) or (4) on its own initiative.
(6)If the appeal court strikes out all of the grounds of the appeal the court may give judgment accordingly without a full hearing of it.
The relevant District Court Rules and Regulations
Section 65 of the District Court of Western Australia Act 1969 (WA) (District Court Act) provides as follows:
65.Costs where the Court has no jurisdiction
Where an action or matter is brought in the Court over which the Court has no jurisdiction, the District Court judge shall order the action or matter to be struck out, and the Court has power to award costs to the same extent, and recoverable in the same manner, as if the Court had jurisdiction therein and the plaintiff had not appeared in Court or had so appeared and failed to prove his demand or claim.
Rule 57(2) of the District Court Rules 2005 (WA) (District Court Rules) relevantly provides that before the hearing of an appeal, the court on application may order the notice of appeal or any part of it, be struck out.
Whether Grounds 1 and 2 should be struck out
The City's submissions
The City submitted that Grounds 1 and 2 allege that the learned magistrate erred in his decision based on evidence presented by the City which was inadmissible (Ground 1) or untruthful (Ground 2).[68]
[68] Respondent's Submissions dated 15 August 2023, par 30 (Respondent's Submissions).
The City submitted the only evidence tendered by the City at trial was the Minutes of the Council meeting on 20 July 2021, which contained the Rescission Resolution.[69] The City submitted the minutes were tendered and are admissible pursuant to s 79C of the Evidence Act.[70] The City submitted that there is therefore no reasonable basis for Grounds 1 and 2 and they ought to be struck out pursuant to s 43(4)(a) of the Magistrates Court Civil Proceedings Act.[71]
[69] MC ts 26, MC ts 30 - MC ts 31, MC ts 48; Respondent's Submissions, par 32.
[70] MC ts 35 - MC ts 37; Respondent's Submissions, par 32.
[71] Respondent's Submissions, par 33.
Further, the City submitted[72] that Grounds 1 and 2 allege errors of fact or law and challenge the merits of the learned magistrate's decision. It was submitted that they were therefore beyond the jurisdiction of the District Court. Reference was made to a decision of the Court of Appeal in RankilorvCircuit Travel Pty Ltd[73] and two decisions of the District Court WisevProprietors of Strata Plan21513[74] and TriplettvBaddeley.[75]
[72] Respondent's Submissions, par 34.
[73] RankilorvCircuit Travel Pty Ltd [2013] WASCA 148 [55] (Rankilor).
[74] WisevProprietors of Strata Plan21513 [2009] WADC 115 [20].
[75] TriplettvBaddeley [2018] WADC 33 [14] and [54].
The City also submitted that Grounds 1 and 2 might be struck out as they are not grounds permitted by s 32(3) of the Magistrates Court Civil Proceedings Act.[76]
[76] Respondent's Submissions, par 35.
With regard to Ground 2, the City submitted that that ground ought to be struck out pursuant to s 43(4)(d) on the basis that it is scandalous and improper.[77] The City contended that there is no foundation for the allegation made in Ground 2 that the City presented untruthful information and misled the court, particularly given that the City did not call any witnesses at trial.[78]
Mr Kepert's submissions
[77] Respondent's Submissions, par 36.
[78] Respondent's Submissions, par 37.
Although Mr Kepert filed written submissions in response to the Respondent's Submissions,[79] those submissions did not seem to respond to the City's arguments concerning Grounds 1 and 2. Mr Kepert's submissions seemed to concentrate on Grounds 3 and 4, particularly Ground 4.
[79] Appellants Submissions filed on 20 September 2023 (Appellant's Submissions), pars 64 - 65.
In oral submissions, Mr Kepert made the following submission about the Second Resolution:[80]
It is not reliable for me to - it was given to the court on the fly. I was not able to inspect that document during proceedings when I was sitting in the witness box. And at no point was I allowed to speak to it or any some such. But I would say that that is a very important matter that we are considering here. It appears that it was used against me, even though I would argue that the contents of it are not particularly relevant to the matter that was raised.
[80] ts 17.
Later in his oral submissions, however, Mr Kepert said that he understood that the scope of an appeal from the Magistrates Court is narrower than otherwise if it had not been a minor case. He said that he would need to prove that there was a denial of natural justice.[81]
Disposition
[81] ts 17 - ts 18.
An unsuccessful party in a minor case has no right of appeal on the merits.[82] Section 32(3) of the Magistrates Court Civil Proceedings Act provides that an appeal may only be made on the grounds that:
(a)the minor case was not within the jurisdiction of the Magistrates Court or was not a minor case;
(b)in dealing with the minor case there was a denial of natural justice; or
(c)the judgment was beyond the Magistrates Courts' jurisdiction.[83]
[82] Duluxgroup (Australia) Pty LtdvChapple [2023] WASCA 83 [34] (Duluxgroup); Rankilor.
[83] Section 32(3) of the Act.
On their face, neither of Grounds 1 and 2 allege a ground of appeal permitted by s 32(3) of the Magistrates Court Civil Proceedings Act.
Ground 1 is that the learned magistrate found that only a portion of the claim should be awarded based on inadmissible evidence presented by various individuals representing the City.
Ground 2 is that the various individuals who represented the City during the proceedings presented untruthful information to the court which misled the learned magistrate into making an erroneous finding with no opportunity given to Mr Kepert for cross-examination.
Neither ground contends that the claim made in the Magistrates Court Proceedings was not a minor case.
Neither ground contends that the learned magistrate made a decision outside the limits of the functions and powers conferred on him, or did something which he lacked power to do. It seems to me that the alleged errors if established would be errors in the exercise of the jurisdiction conferred on the learned magistrate, not jurisdictional errors. In Kirk vIndustrial Relations Commission of New South Wales[84] the High Court explained:
[84] Kirk vIndustrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
66.In Craig v South Australia, this Court recognised the difficulty of distinguishing between jurisdictional and non-jurisdictional errors, but maintained the distinction. As was pointed out in Re Refugee Review Tribunal; Ex parte Aala:
'The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.'
As was also pointed out in Aala, there can be no automatic transposition to Australia of the principles that developed in England in relation to the availability of certiorari and prohibition. The constitutional context is too different to permit such a transposition. At the federal level, allowance must be made for the evident constitutional purposes of s 75(v) of the Constitution; at a State level, other constitutional considerations are engaged. As was pointed out by Gummow J in Gould v Brown, '[w]hen viewed against the Constitution in its entirety, Ch III presents a distinct appearance. Upon what had been the judicial structures of the Australian colonies and, upon federation, became the judicial structures of the States, the Constitution by its own force imposed significant changes.'
67.The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between 'on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ'. The Court said that:
'If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'
By contrast, demonstrable error on the part of an inferior court 'entrusted with authority to identify, formulate and determine' relevant issues, relevant questions, and what is and what is not relevant evidence was held, in Craig, not ordinarily to constitute jurisdictional error. The Court held that:
'a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.'
68.The basis for the distinction thus drawn between courts and administrative tribunals was identified in the lack of authority of an administrative tribunal (at least in the absence of contrary intent in the statute or other instrument establishing it) 'either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law'. By contrast, it was said that 'the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine'.
(footnotes omitted)
The Magistrates Court is an inferior court and by s 13 of the Magistrates Court Act, in exercising its jurisdiction, it is to decide all questions of fact and law.
Nor is it apparent to me that Grounds 1 or 2 allege a denial of natural justice. In Rankilor, Newnes JA made the following observations about the principles of natural justice in the context of the minor case procedure in the Magistrates Court:
57It is trite law that the principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement in a particular case cannot be determined in the abstract but only in the context of the case. Thus, as Brennan J pointed out in J v Lieschke (1987) 162 CLR 447, while the principles of natural justice apply to courts:
'That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings. (456)'
58See also, for example, R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 552-553; Koia v West (1985) 159 CLR 550, 584 ‑ 585. The requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court.
59It is also important to bear in mind that while the appellant was entitled to a reasonable opportunity to present her case, the court was not required to undertake the 'impossible task' of ensuring that the appellant took the best advantage of the opportunity: see Sullivan v Department ofTransport (1978) 20 ALR 323, 343.
The alleged error in Ground 1 seems to be that the learned magistrate erred by making a finding based on inadmissible evidence. The allegation is not that Mr Kepert was denied a reasonable opportunity to present his case.
Ground 2 alleges that the learned magistrate was misled by the City's representatives into making an erroneous finding. This is also not an allegation that Mr Kepert was denied a reasonable opportunity to present his case.
Ground 2 does allege that Mr Kepert had no opportunity to cross‑examine but the ground alleges that this was due to the City's misleading conduct, not because of the manner in which the learned magistrate presided over the trial. There was no one for Mr Kepert to cross-examine because the City did not call any witnesses.[85]
[85] ts 48, first par.
It therefore seems to me that the City's submissions that Grounds 1 and 2 should be struck out as they are not grounds permitted under s 32(3) of the Magistrates Court Act must be accepted. This court therefore has no jurisdiction to determine an appeal on Grounds 1 or 2. Section 65 of the District Court Act requires me to strike out an appeal where this court has no jurisdiction. I will strike out Grounds 1 and 2 pursuant to r 57(2)(b) of the District Court Rules.
Whether Ground 3 should be struck out
The City's submissions
The City submitted that there is no reasonable basis for Ground 3, or it does not have reasonable prospects of succeeding.[86]
[86] Respondent's Submissions, par 44.
The City submitted that the words 'the judgment was beyond the court's jurisdiction' within s 32(3)(c) of the Act are akin to the concept of jurisdictional error for inferior courts as described in Craig v The State of South Australia.[87] The City referred to the judgment of McLure JA in Re Carey; Ex parte Exclude Holdings Pty Ltd (Carey),[88] as identifying[89] the five categories of jurisdictional error as set out in Craig v The State of South Australia.
[87] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163.
[88] Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 (Carey).
[89] Carey [181].
The City referred to the jurisdiction conferred by s 6(1)(a) of the Magistrates Civil Proceedings Act that provides that the Magistrates Court has jurisdiction in relation to a claim for a debt or damages.[90] The City submitted that Mr Kepert's claim was for an amount of money that was within the jurisdictional limit in s 6(1)(a) and the relief granted to Mr Kepert for the payment of money within the jurisdictional limit. It was submitted that there was no jurisdictional error.[91]
Mr Kepert's submissions
[90] Respondent's Submissions, par 42.
[91] Respondent's Submissions, par 43.
Mr Kepert submitted that the Magistrates Court does not possess the jurisdiction to determine whether decisions of a Local Government are legally valid or invalid. He submitted that in finding partially against him the learned magistrate determined that someone, it is unknown who, when or how, has legally cancelled the agreement between the parties.[92]
Disposition
[92] Appellant's Submissions, pars 64 - 65.
Section 32 of the Magistrates Civil Proceedings Act provides a right of appeal on the basis of one, of two types of jurisdictional error. First, s 32(3)(a)(i) provides a right of appeal where the minor case was not within the jurisdiction of the court. Secondly, s 32(3)(c) provides a right of appeal where the judgment was beyond the court's jurisdiction.
It seems to me that the minor case filed by Mr Kepert was within the jurisdiction of the Magistrates Court. Neither party suggested otherwise. This is not a case in which the right of appeal in s 32(3)(a)(i) of the Magistrates Civil Proceedings Act has any application.
In the Claimant's Summary of Facts attached to the Minor Case Claim, Mr Kepert sought to invoke the jurisdiction in s 6 of the Magistrates Civil Proceedings Act in relation to the payment of debts.[93] The assertion made in pars 21 to 23 of the Claimant's Summary of Facts seemed to be that there was a contract between Mr Kepert and the City.[94] The Magistrates Court has jurisdiction to determine such a claim. By s 6(1)(a)(i) of the Magistrates Civil Proceedings Act, the Magistrates Court has jurisdiction to deal with a claim for an amount of money that is a debt or damages.
[93] Magistrate's Court File, page 390.
[94] Magistrate's Court File, page 393.
By the time of the trial, the claim being asserted by Mr Kepert appears to have developed into claim of promissory estoppel based on the High Court's decision in Waltons Stores (Interstate) Ltd vMaher.[95] The Magistrates Court also had jurisdiction to determine such a claim. By s 6(1)(b) of the Magistrates Civil Proceedings Act, the Magistrates Court also has jurisdiction to determine a claim that involves an equitable claim or demand where the only relief claimed is the recovery of an amount of money or of damages.
[95] MC ts 27.
Mr Kepert's submissions appeared to focus on whether the learned magistrates' judgment was beyond the court's jurisdiction. He submitted that the Magistrates Court does not possess the jurisdiction to determine whether decisions of a Local Government are legally valid or invalid. He contended that in finding partially against him the learned magistrate determined that someone, it is unknown who, when or how, has legally cancelled the agreement between the parties.
There is no merit to Mr Kepert's contention. The learned magistrate's reasons make it clear that he did not purport to determine whether decisions of a Local Government are legally valid or invalid as Mr Kepert asserts. Indeed, the learned magistrate expressly disavowed such jurisdiction. He said:[96]
I do not have power to quash resolutions as if I was exercising Supreme Court jurisdiction to prevent the decisions from taking effect or from otherwise suspending the operation of the resolution …
… The Magistrates Court, in my view, is not a jurisdiction which has the statutory power to interfere and, as said, quash resolutions.
[96] MC ts 49, second and third par.
The learned magistrate proceeded on the basis that as he could not determine the validity of the decisions made by the City Council, he must therefore accept the validity of both the First Resolution and the Second Resolution.[97] In taking this approach he declined to consider whether the Second Resolution was 'made' or enforceable as Mr Kepert had invited him to do[98] because he considered that he lack jurisdiction to do so.
[97] MC ts 49.
[98] MC ts 42 - MC ts 43.
Although it does not assist Mr Kepert, if there is any reason to question whether the learned magistrate's judgment was beyond the court's jurisdiction, it is in relation to the order that the learned magistrate made in favour of Mr Kepert that the City pay him the $2,898.50 for the First Invoice. This is because the precise jurisdictional basis upon which the learned magistrate gave judgment in Mr Kepert's favour is obscure.
In his reasons the learned magistrate rejected both Mr Kepert's claim that there was a contract[99] and his claim based on promissory estoppel.[100] The learned magistrate found in Mr Kepert's favour on an alternate basis that the case was one of 'an administrative direction which should be followed'.[101] He observed:[102]
[99] MC ts 50, first par.
[100] MC ts 50, second par.
[101] MC ts 50, first par.
[102] MC ts 48 - MC ts 50.
Now, the first question which I raised at the outset - in fact, have raised throughout the matter - is what is the jurisdiction that I am imbued with in making a determination in making this case. It was put by Mr Kepert that this court has the power to deal with debts and money claims, and I accept that to be the case. I have no dispute about the fact that I have a jurisdiction to determine whether an amount of money is due and payable.
Where it becomes more complicated and more complex is in relation to the question of the nature of the motions and resolutions. It is my view - it was then and still is now - that I do not have power to quash resolutions as if I was exercising Supreme Court jurisdiction to prevent the decisions from taking effect or from otherwise suspending the operation of the resolution. There are a raft of different options in relation to Local Government Act meetings.
There are standards panels, there's ombudsmans, there's the Supreme Court in relation to the powers that can be exercised to control the conduct of councillors and also council meetings. The Magistrates Court, in my view, is not a jurisdiction which has the statutory power to interfere and, as said, quash resolutions. It was said that the first resolution was defective and ought not to have effect for various reasons, including conflict on the part of Mr Kepert essentially breaking any deadlock or fighting for himself in respect of the issue of payment of his legal expenses.
I don't see it as simple as Mr Kepert sees it, that there's no financial disadvantage involved, and therefore it wasn't important that there be a mindfulness on his part of a conflict of interest, but by the same token, it's made painfully apparent in there that the motion is for his legal fees, and anyone at that meeting would know that he is voting and was voting with a view to that particular motion and that resolution.
So I can't see that anyone would be surprised by the fact that he had an interest in the matters at hand. I do see that's an interest that needs to be taken account of, but again I don't see that my power extends to quashing that resolution in any event. The same with the policy issues, non-compliance with various steps in the process.
Neither do I see that I have the power to intervene in the rescission motion and resolution which was eventually passed after what seems to have been a difficult and contentious meeting on 20 July 2021. In my view, these resolutions both stand for what they stand for. One is the granting of indemnity for legal costs, and one is the removal of that grant by rescission, and on the face of it, there are two valid resolutions that have been made.
I don't consider, as I've said in the past, that this is a contractual situation, and I don't consider that despite the fact that there were legal costs and that Mr Kepert was a council member when these proceedings were brought, that he's entitled to say that he gave consideration for this supposed offer and acceptance. I consider it's simply an administrative direction which should be followed subject to intervention by other courts or processes.
It's suggested - and I've got no dispute with this - that I raised the issue of promissory estoppel merely to say that, in many cases, that is a quasi‑contractual situation were the principles of contract don't really fully apply. It's a form of estoppel which is really a shield rather than a sword, as they commonly say, ie, it's better used in a situation where the council is chasing Mr Kepert and he relies upon what had happened as a defence to their ability to pursue him. But in any event, those principles, in my view, could only apply to a time when Mr Kepert reasonably believed he could incur costs.
(emphasis added)
The learned magistrate did not identify the nature of the cause of action that might entitle Mr Kepert to an order that a local government pay him for the legal costs he incurred because of an 'administrative direction'. It is unclear to me that there is such a cause of action and if there is, that s 6(1) of the Magistrates Court Civil Proceedings Act confers jurisdiction on the Magistrates Court to determine such a claim. Certainly, such claims are not mentioned in s 6(1) of the Magistrates Court Civil Proceedings Act.
This calls into question whether the learned magistrate had jurisdiction to give the judgment he did in Mr Kepert's favour. This does not assist the prospects of Mr Kepert's appeal. It might suggest that the City could have had a ground of appeal if it had sought to cross-appeal but it elected not to do so. That decision is understandable given the City's concerns that the costs of this Appeal are disproportionate.
In Titelius v Crowe,[103] Staude DCJ observed that a court is bound to be circumspect in considering any submission that an appeal has no reasonable basis, or no reasonable prospect of succeeding.[104] While I am cognisant of this, it seems to me that Ground 3 is amenable to determination at this stage. In my view, Ground 3 has no reasonable prospects of succeeding and should be struck out pursuant to s 43(4)(c) of the Magistrates Civil Proceedings Act.
[103] Titelius v Crowe [2017] WADC 116 (Titelius).
[104] Titelius [57].
Whether Ground 4 should be struck out
The City's submissions
The City acknowledged that the principles of natural justice require that a party be given a reasonable opportunity to present their case but submitted that what is necessary to satisfy that requirement is determined in the context of the particular case. The City submitted that in this case the requirements of natural justice are to be viewed in the context of the minor case procedure of the Magistrates Court, as set out in s 29 of the Magistrates Court Civil Proceedings Act.[105]
[105] Rankilor [57] - [58]; Respondent's Submissions, par 48.
The City submitted that the minor case procedure is intended to provide a speedy, informal and inexpensive process for the resolution of claims not exceeding $10,000 and s 29 of the Magistrates Court Civil Proceedings Act therefore provides that the court is to act with as little formality as it thinks reasonable and is not bound by the rules of evidence but may inform itself as it thinks fit.[106]
[106] Rankilor [54]; Respondent's Submissions, par 49.
The City submitted that there is no evidence that at any stage of the proceedings Mr Kepert was denied the right to be heard.[107]
[107] Respondent's Submissions, par 52.
The City noted that Mr Kepert was permitted to file written submissions and a statement of intended evidence. The City submitted that Mr Kepert's statement was received into evidence and it is apparent from the learned magistrate's comments that he had read Mr Kepert's statement.[108] The City said that Mr Kepert made oral submissions[109] and the learned magistrate listened to and engaged with his arguments.[110]
[108] MC ts 48 - MC ts 50; Respondent's Submissions, par 51.
[109] MC ts 27 - MC ts 28, MC ts 41 - MC ts 47; Respondent's Submissions, par 51.
[110] MC ts 41 - MC ts 45, MC ts 49, MC ts 50; Respondent's Submissions, par 51.
The City submitted that there was no reasonable basis for Ground 4 and it does not have reasonable prospects of succeeding.[111]
Mr Kepert's submissions
[111] Respondent's Submissions, par 53.
Mr Kepert submitted that he was denied natural justice because Magistrate Darge made a finding based on propositions which were never put to the court or him contrary to the principles in Browne vDunn.[112]
[112] Browne v Dunn (1893) 6 R 67; Appellant's Submissions, pars 57 - 58; See also ts 18 - ts 19.
Mr Kepert submitted that in conflict with the Browne vDunn rule, at no point did the City put to Mr Kepert that:
(a)the City's obligations to the Appellant ceased on 20th July 2021;
(b)Mr Kepert had a 'reasonable expectation' to rely on the agreement between the parties and continue his legal defence;
(c)Mr Kepert could discontinue his defence in the legal action against him by the City, and do so without incurring other costs; and
(d)whether the work performed by Mr Kepert's legal representative was prior to or after 20 July 2021.[113]
[113] Appellant's Submissions, par 59.
Mr Kepert submitted that the learned magistrate made a finding on concepts that were never presented to the court or put to him and as a result Mr Kepert has been improperly disadvantaged.[114]
[114] Appellant's Submissions, par 60.
Mr Kepert submitted that as a result, a finding has been made not based on evidence presented to the court which constitutes a denial of natural justice.[115]
[115] Appellant's Submissions, par 61.
Mr Kepert submitted that the High Court ruling in Waltons Stores (Interstate) Ltd vMaher contains no allowance for a party to walk away from an agreement and cause disadvantage to the other party when the principles of promissory estoppel are met.[116]
[116] Appellant's Submissions, par 62; See also ts 19 - ts 21.
At the hearing of the Strike Out Application, Mr Kepert explained the basis upon which he contended he had been denied natural justice as follows:[117]
It may or may not be my fault but overall I believe that there is a clear denial of natural justice by not putting to me at any point during trial, that I could cease my relationship with my legal practitioner and legal action against me. It was never put that something happened on 20 July 2021 or on 24 June or 25 June, as the defendants had put at least, well, in their evidence, they were trying to say there were at least three different occasions, in three different parties which had cancelled the agreement.
The rule in Browne vDunn
[117] ts 20.
In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation, Hunt J explained the rule in BrownevDunn as follows:[118]
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examined as intention to rely upon such matters, it is necessary to put to an opponent's witness in cross examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.
(emphasis added)
[118] Allied Pastoral Holdings Pty Ltd v FederalCommissioner of Taxation [1983] 1 NSWLR 1 [16]; (1983) 44 ALR 607, 623.
There can be a denial of procedural fairness where a judge makes a finding without first ensuring compliance with the rule in BrownevDunn. Such a circumstance was considered by the Full Court of the Supreme Court of South Australia in Macks v Viscariello,[119] who explained the consequences of a failure to comply with the rule as follows:
[119] Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1.
Consequences of a failure to comply with the rule in Browne v Dunn
465The decision in Kuhl v Zurich Financial Services Australia Ltd is instructive on the consequences that flow from a failure to comply with the rule.
466The plaintiff sued the defendant for injuries suffered in an industrial accident. The trial judge found that the plaintiff was 'less than expansive' when describing how the accident had occurred. His Honour stated that he had 'formed the view that for whatever reason he [the plaintiff] was reluctant to say precisely what happened'. The trial judge relied upon four questions and the answers in evidence in chief given by the plaintiff to support that view. The plaintiff was asked no further questions in his evidence about how the accident had occurred. The trial judge asked no questions. Counsel for the defendant did not make a submission on the topic in his closing address.
467Heydon, Crennan and Bell JJ noted that the view taken by the trial judge was important and that to conclude that a party‑witness was reluctant to say what had happened was to conclude that the party-witness had deliberately failed to comply with the duty to tell the whole truth. As the majority noted, if it was not open to defence counsel to make the postulated allegation, not having cross examined on it at trial, how could it have been open to the trial judge, without warning, to incorporate into his reasons for judgment a finding to the same effect as the allegation? The majority stated:
'There was no point in the trial judge mentioning his conclusion that the plaintiff's evidence was not frank and complete unless it played a role in his decision adverse to the plaintiff. In the absence of any challenge from the cross-examiner to the frankness and completeness of the plaintiff's evidence, it was incumbent on the trial judge, if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff, to make the challenge himself. Perhaps the criticism in the judgement did not occur to the trial judge until after the plaintiff had left the box, or until after the hearing had concluded and before the Judge's reserve judgement was given. It remained necessary either to recall the plaintiff or to have no regard to that aspect of the plaintiff's evidence.' (Our Emphasis)
468The error of the trial judge was that he had incorporated into his reasons a finding without providing the affected party with the opportunity to deal with the subject matter of the finding.
469A similar situation arose in Bale v Mills. A former client sued a firm of solicitors alleging that they had failed to advise him properly when settling his work injury claim. The solicitor handling the settlement, Mr S, gave evidence. An issue at the trial was the calculation, made by Mr S, of the 'preclusion period' before the plaintiff was able to access Centrelink payments. It was alleged that he had made an error in his calculation. During the course of the trial a letter sent to Mr S from Centrelink was tendered. The error was disclosed in the letter. The letter was received by Mr S before he wrote to his client. In the subsequent letter to his client he did not advise of the error.
470Counsel for the plaintiff at trial submitted that Mr S deliberately wrote to his client, after receipt of the letter from Centrelink, to consciously mislead him and conceal his error in calculating the preclusion period. That allegation had not been put to Mr S, but the primary judge accepted the submission.
471On appeal it was conceded that counsel should not have made that submission. The Court (Allsop P, Giles JA and Tobias AJA) noted that the concession was properly made and added that it ought not to have been accepted by the Primary Judge. The Court accepted, on the authority of Kuhl, that the rule in Browne v Dunn, being one of fairness, applied equally to a trial judge as to counsel.
(footnotes omitted)
As Hunt J noted in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation, there may be no requirement to comply with the rule in BrownevDunn where notice has been given of an intention to rely on matters. In Brockway v Pando,[120] the Full Court of the Supreme Court of Western Australia observed:
[120] Brockway v Pando [2000] WASCA 192; (2000) 22 WAR 405.
55Counsel for Mrs Pando responded to the Browne v Dunn objection by submitting that Brockways were not ambushed and Mr Brockway could have been recalled to contradict the evidence: White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169 at 216 - 219; affirmed on appeal to the Full Court of the Federal Court in Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 163 ALR 744 at 757 [51]-[52]. That case is authority for the proposition that the rule in Browne v Dunn is not broken, even if a material matter or allegation is not put to a party, if that party can fairly and objectively be said to be on notice of it, where, for example, it is sufficiently apparent from the materials and evidence that it will be relied on. In White Industries (Qld) Pty Ltd v Flower & Hart at first instance Goldberg J said at 217:
'The significance of the rule is that it requires notice to be given of a proposed attack on a witness or on the witness' evidence where that attack is not otherwise apparent to the witness. The rule does not require that there be put to the witness every point upon which his or her evidence might be used against him or her or against the party who calls the witness.'
56At 218 - 219 his Honour referred to the fact that letters of advice from senior counsel and the solicitors were to the effect that the client should initiate hopeless proceedings so as to obtain a better bargaining position. This was alleged to be evidence of unreasonably instituted proceedings, which evidence was known to those practitioners, who were witnesses, to be evidence before the court. Consequently, it was not necessary to cross-examine them on it. On appeal Lee, Hill and Sundberg JJ said at par 51:
'As a general rule, before an adverse finding is made against a witness in contradiction of sworn testimony given by that witness, a matter in issue, the subject of that finding, must be put to the witness in cross‑examination to enable him or her to give an explanation. However there can be no need to put such an issue to a witness who has notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness: see Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16; 44 ALR 607; R Cross, Cross on Evidence, 4th Aust ed, Butterworths, Sydney, 1991, para 17445.'
Further, the rule in BrownevDunn does not require that a witness be cross-examined on every point. The rule only requires that the witness is given an opportunity to comment on or explain some matter about which the opposing party intends to make adverse comment.[121]
Disposition
[121] Lord Buddha Pty Ltd (in liq)v Harpur [2013] VSCA 101; (2013) 41 VR 159 [203] - [206]; ALv The Queen [2017] NSWCCA 34; (2017) 266 A Crim R 1 [193].
Ground 4 rests on the contention that the following matters should have been put to Mr Kepert in compliance with the rule in Browne vDunn:
(a)that the City's obligations to Mr Kepert ceased on 20 July 2021;
(b)he had a 'reasonable expectation' to rely on the agreement between the parties and continue his legal defence;
(c)he could discontinue his defence in the legal action against him by the City and do so without incurring other costs; and
(d)whether the work performed by Mr Kepert's legal representative was prior to or after 20 July 2021.[122]
[122] Appellant's Submissions, par 59.
The learned magistrate's reasons for not giving judgment for the Second Invoice were as follows:[123]
I'm satisfied that there was a resolution on 20 July 2021 and that when looking at the accounts, that there were accounts incurred prior to that date - or rather, I should say, work done prior to that date and recorded on the itemised invoices, and further there was work done after that date but commencing in August 2021. Had there been work carried out around about 20 July 2021 and for the following few days, I may have formed the view that that work could not reasonably be turned around after the resolution of council, but according to the documents that have been produced to me, there was a big gap between the work done up to 20 July and then the work done in August.
In my view, based on those resolutions, that the work after 20 July 2021 was not incurred in a reasonable expectation that it was to be paid by the council; that, again, I can't interfere with the resolution; and further, I don't think that estoppel principles would assist Mr Kepert here given that, in my view, the challenge to that resolution belongs in a different jurisdiction.
In the circumstances, I consider that there should be payment of the account for the period up to 20 July based on no evidence to contradict or suggest that Mr Kepert wasn't entitled to rely upon the initial resolution, and therefore my finding is that the defendant is required to pay the claimant the sum of $2898.50, together with interest on that amount at the rate of six per cent per annum. The date that I've chosen as the date for interest to commence is 15 September 2021.
(emphasis added)
[123] MC ts 50 - MC ts 51.
It is convenient to begin by addressing the third matter that Mr Kepert says should have been put to him - that he could discontinue his defence in the legal action against him by the City and could do so without incurring other costs. A review of the learned magistrate's reasons reveals that he made no such finding. If the learned magistrate did not make the finding alleged, there can be no question of the learned magistrate making a finding without first providing Mr Kepert the opportunity to deal with the matter.
It should also be noted that Mr Kepert did not conduct his case on the basis that he could not terminate his lawyer's retainer without further cost and he did not give any evidence to that effect. In such circumstances, even if the learned magistrate had made the relevant finding, such a finding would not have involved any contradiction of Mr Kepert's case or evidence.
Finally, to the extent that Mr Kepert's contention is really that the learned magistrate failed to take into account the possibility that he would not be able to terminate his lawyer's retainer without further cost, that is a criticism of the merits of the learned magistrate's decision, rather than an allegation that Mr Kepert was denied natural justice. As already mentioned, there is no appeal on the merits from a minor case claim in the Magistrates Court.
To the extent that Ground 4 is based on the contention that Mr Kepert was denied natural justice because it was not put to him that he could discontinue his defence in the legal action against him by the City and could do so without incurring other costs, I consider that the ground has no reasonable prospect of succeeding.
Returning to the first matter that Mr Kepert said should have been put to him, that matter was that the City's obligations to him ceased on 20 July 2021. It will be recalled that the learned magistrate found that the Second Resolution was passed on 20 July 2021. It was because the Second Resolution was passed that the learned magistrate considered that Mr Kepert was not entitled to payment of the Second Invoice.
The materials filed by the City made it clear from the outset that the City's position was that the Second Resolution rescinded the First Resolution. Paragraph 16 of the Response filed by the City on 19 September 2022 set out the fact that the Second Resolution rescinded the First Resolution.[124] Paragraph 21 of the Defence pleaded that the funding was rescinded on 20 July 2021.[125]
[124] Magistrate's Court File, pages 15 - 16.
[125] Magistrate's Court File, page 21.
This was also addressed in Mr Tieleman's statement. In par 16 of that statement Mr Tieleman deposed to the fact that on 25 June 2021 Mr Kepert was advised of the motion for the Second Resolution. In par 17 of that statement Mr Tieleman deposed to the fact that Mr Kepert was advised that no further action could be taken in relation to the First Resolution. In par 18 of that statement Mr Tieleman deposed to the fact that on 20 July 2021, the Second Resolution was carried by an absolute majority.[126]
[126] Magistrate's Court File, pages 297 - 298.
That the City's position was that the Second Resolution rescinded the First Resolution was also evident from Ms Lawson's affidavits. Ms Lawson addressed similar matters to those addressed by Mr Tieleman in pars 13.4 and 13.5 of her first affidavit[127] and pars 25.4 and 25.5 of her second affidavit.[128] In par 15.3 of her first affidavit[129] and par 27.3 of her second affidavit,[130] Ms Lawson submitted that the Second Resolution was appropriate and lawful.
[127] Magistrate's Court File, page 252.
[128] Magistrate's Court File, page 346.
[129] Magistrate's Court File, page 254.
[130] Magistrate's Court File, page 348.
It may be that neither Mr Tieleman, nor Ms Lawson, were ultimately called to give evidence but the service of their statements was still part of the material that put Mr Kepert on notice of the case against him. That Mr Kepert well understood the nature of the case put against him is evident from his opening where he said:[131]
… they are disputing a lot of new matters, and they are not providing any evidence to back up those claims. We hear constantly that there was a rescission. It is disputed that that rescission took place. Nonetheless, even if it did exist under promissory estoppel a body corporate - as a body corporate they can't simply walk away from a promise, and that promise was held in public, is in writing, was recorded. Again, they are not disputing that.
[131] MC ts 28, first par.
Mr Kepert gave evidence based on his witness statement.[132] That witness statement omitted any reference to the Second Resolution or what happened on 20 July 2021 and he did not otherwise lead any positive evidence about what transpired on that day. The learned magistrate asked Mr Kepert whether he wished to supplement his witness statement but he declined.[133]
[132] MC ts 29 - MC ts 30.
[133] MC ts 29, last par.
Mr Kepert opposed the admission into evidence of the minutes of the meeting on 20 July 2021 but the learned magistrate ultimately decided to accept those minutes into evidence anyway. Before doing so, the learned magistrate allowed Mr Kepert an opportunity to be heard.[134]
[134] MC ts 42 - MC ts 43.
Mr Kepert was also allowed an opportunity to reply to the City's case.[135] During Mr Kepert's reply, the learned magistrate expressly invited Mr Kepert to make whatever submissions he wished about the Second Resolution. The following exchange occurred:[136]
[135] MC ts 41 - MC ts 47.
[136] MC ts 42 - MC ts 43.
HIS HONOUR: If we leave all that aside, what do you say I should make of the fact that a certain group of people at the council made a resolution, on a certain date, to do a certain thing; a certain group of people, on another date, at a meeting of council, made a resolution to do a different certain thing?
KEPERT, MR: I dispute the second part, but I agree with the first part, in short.
HIS HONOUR: Okay. Well, but you can't disagree with the fact that they made it. You're saying it's not legally enforceable; isn't that the case - - -
KEPERT, MR: No, I - - -
HIS HONOUR: - - - because it's - - -
KEPERT, MR: I'm sorry. Sorry to interrupt, your Honour.
HIS HONOUR: yes.
KEPERT, MR: Were you finished? Yes. No, I disagree that the second part happened.
HIS HONOUR: Okay.
KEPERT, MR: I dispute that it happened.
HIS HONOUR: Okay.
As Mr Kepert did not give evidence that the Second Resolution was not passed on 20 July 2021, the finding that the learned magistrate made that the Second Resolution was passed on that day did not contradict any evidence Mr Kepert gave. In such circumstances, the application of the rule in Browne v Dunn might be questioned. But even if the rule could have had some application, the materials filed by the City prior to the trial put Mr Kepert on notice of the case against him. Further, the trial was conducted in a manner that permitted Mr Kepert ample opportunity to put his case and the learned magistrate expressly invited Mr Kepert to address him on the Second Resolution.
In my view, to the extent that Ground 4 rests on the contention that Mr Kepert was denied natural justice because it was not put to him that the City's obligations to him ceased on 20 July 2021, the ground had no reasonable prospect of succeeding.
The second of the matters that Mr Kepert said should have been put to him was that he had a 'reasonable expectation' to rely on the agreement between the parties and continue his legal defence. It will be recalled that the learned magistrate concluded that based on the Second Resolution, work done after 20 July 2021 'was not incurred in a reasonable expectation that it was to be paid by the council'.[137]
[137] MC ts 51, second par.
The City opened its case on the basis that it was unreasonable for Mr Kepert to have relied on the First Resolution. Ms Newman said in opening:[138]
NEWMAN, MS: Thanks you, your Honour. For Mr Kepert to be successful in alleging that the City is estopped in denying his claim for reimbursement, he must set aside the principles of estoppel, as established in the High Court in the case of Walton Stores. These principles are the assumption, inducement, detrimental reliance, reasonableness and unconscionability. As such, Mr Kepert must show that he has relied on an assumption that the City of Melville had promised him assistance with legal costs under the policy and that the City had acted in a way to induce that assumption.
The City of Melville at no time [induced] Mr Kepert to rely on any promise that he would be granted financial assistance under the council's policy, outside of him fulfilling the requirements of that policy. On 25 June, at 12.47 pm, all elected members of the City of Melville were advised of the receipt of a rescission motion in respect of the resolution to council on 22 June 2021. At that time, Mr Kepert had an obligation to notify Cornerstone Legal not to proceed with any further action on this matter.
At this point, Mr Kepert had not suffered any detriment by incurring any costs, as evidenced by the Cornerstone legal invoice 18667, dated 3 September, which show the first costs were incurred on 30 June, five days after the advice of the rescission motion. It's unreasonable for Mr Kepert to continue to rely on that promise and not notify Cornerstone Legal not to incur further cost.Further, it would have been unlawful and unconscionable for the City of Melville not to advise all elected members of that rescission motion.
(emphasis added)
[138] MC ts 38, third par to fifth par.
Mr Kepert had been on notice that the City disputed the reasonableness of his reliance on the First Resolution from the outset. It was evident from pars 15 to 18 of the City's initial Response,[139] pars 24 and 25 of Mr Tieleman's statement,[140] and Ms Lawson's statements.[141]
[139] Magistrate's Court File, pages 15 - 16.
[140] Magistrate's Court File, page 298.
[141] First Statement: Magistrate's Court File, pages 252 - 253, pars 13.4 - 13.5, 13.11 - 13.13; Magistrate's Court File, Second Statement, pages 346 - 347, pars 25.4, 25.4, 25.11 - 25.13.
In my view, in the context of the present case there is no material difference between the concepts of 'reasonable expectation' and 'reasonable reliance'.
That Mr Kepert well understood that the reasonableness of his reliance was disputed may be seen from his reply to the City's case where he expressly addressed the reasonableness of his reliance. He said:[142]
KEPERT, MR: Thanks. Well, I've referred in my sworn testimony, where I said that I did go and get legal representation based on that inducement. I did. If I did not have that, I would not have gone there. If I did not - if it did not meet the terms of that motion, I would not have gone to Cornerstone Legal, noticing that that was a defence put forward, that they are not on some kind of list or something. They are on that list.
[142] MC ts 45, final par.
It may be seen from the submissions that Mr Kepert made that he was on notice that the reasonableness of his reliance was in issue and he was afforded the opportunity to be heard on that issue and he availed himself of that opportunity.
Ultimately, the learned magistrate did not accept Mr Kepert's argument. To the extent that Mr Kepert's true complaint is that the learned magistrate was wrong to reject his argument, this is an attack on the merits of the learned magistrate's decision. As discussed, there is no appeal on the merits from a minor case.
In my view, to the extent that Ground 4 is based upon the contention that Mr Kepert was denied natural justice because it was not put to him that he had a 'reasonable expectation' to rely on the agreement between the parties and continue his legal defence, the ground has no reasonable prospect of succeeding.
Finally, the fourth matter that Mr Kepert says should have been put to him was whether the work done by his lawyers was prior to, or after, 20 July 2021. Three observations may be made.
First, whether the work done by Mr Kepert's solicitors was done before or after 20 July 2021 is only significant because that was the day on which the Second Resolution was passed. As I have said, Mr Kepert was given notice that the City's case was that the Second Resolution rescinded the First Resolution and he was given ample opportunity to respond to that case.
Secondly, the findings that the learned magistrate made about when the work was done by Mr Kepert's lawyers involved the acceptance of Mr Kepert's evidence. It is evident from the learned magistrate's comments that he had decided when the work was done based on the invoices attached to Mr Kepert's own affidavit.[143] It is not apparent to me that the rule in BrownevDunn has any application where a party's evidence is not being contradicted but instead is being accepted.
[143] MC ts 50 - MC ts 51.
Thirdly, at no point did Mr Kepert contend that the work performed by his lawyers was done on any dates other than those disclosed in the invoices he tendered. If there was some suggestion that the invoices were inaccurate then it might be expected that Mr Kepert would have indicated as much when he tendered the invoices, otherwise his evidence would have been misleading. Nor is it evident from the material before me that there is any factual basis to an assertion that the work done by Mr Kepert's solicitors was done on dates other than those in the invoices.
For these reasons, to the extent that Ground 4 is based on the contention that Mr Kepert was denied natural justice because it was not put whether the work done by his lawyers was prior, to or after, 20 July 2021, it seems to me that the ground has no reasonable prospect of succeeding.
Conclusion on Ground 4
I am cognisant of the need for circumspection when considering whether to determine Ground 4 on the basis that it has no reasonable prospect of success. However, when the contentions made by Mr Kepert are compared against the record before Magistrate Darge it is immediately apparent that his complaints that he was denied natural justice lack merit.
I consider that none of the contentions advanced by Mr Kepert to support Ground 4 has any reasonable prospect of succeeding and I will strike out Ground 4 pursuant to s 43(4)(c) of the Magistrates Civil Proceedings Act.
Whether the appeal should be struck out because of the cost
The City also applied to strike out the entire appeal pursuant to s 43(4) of the Magistrates Court Civil Proceedings Act. Given the conclusion that I have reached, it is not necessary for me to reach a conclusion about this aspect of the Strike Out Application. Nevertheless, I will make three observations about this aspect of the application.
First, the City's solicitor's evidence about their costs did not address the City's costs by reference to the relevant costs scale. In my view, the City's costs needed to be assessed by reference to that scale.[144]
[144] Titelius [52].
The City relied on evidence from its solicitor to the effect that it has already incurred $12,999.45 in costs and disbursements in relation to the appeal not including the costs of the Strike Out Application.[145] If the scale is considered, it might be that much of that amount would be recoverable under the scale. In any event, the relevance of the costs already incurred may be doubted.[146]
[145] Affidavit of Adam Watts sworn 15 August 2023 (Affidavit of Adam Watts), par 9.
[146] Duluxgroup [5].
Secondly, the City's solicitor's estimate of the future costs of the action assumed that the appeal would last one day.[147] Given the matters in issue in the appeal, it seems unlikely the appeal would last a full day. Indeed, the trial itself only lasted half a day and part of that time was consumed by the learned magistrate's efforts at mediation.
[147] Affidavit of Adam Watts, par 10.
Thirdly, once these first two matters are taken into account, the degree of any disproportion between the amounts in issue in the appeal and the City's costs would be significantly reduced.
Conclusion
In Duluxgroup,[148] the Court of Appeal observed that any strike out application made pursuant to s 43(3) of the Magistrates Court Civil Proceedings Act must be made promptly. Otherwise, the (allegedly disproportionate) costs of the appeal may have already been incurred by the time the application is heard.[149]
[148] Duluxgroup.
[149] Duluxgroup [5].
In this case, the application made pursuant to s 43(3) of the Magistrates Court Civil Proceedings Act was coupled with applications made pursuant to s 43(4) of the Magistrates Court Civil Proceedings Act.
Although I was ultimately prepared to strike out Grounds 3 and 4 pursuant to s 43(4)(b) in this case, it will be a rare case in which there will be any utility in hearing a strike out application made pursuant to s 43(4) (as opposed to s 43(3)) in advance of the hearing of the appeal. Any application to strike out an appeal pursuant to s 43(4) will usually best be heard together with the appeal. In Ninan, Martino CJDC (as he then was) observed:[150]
The fact that the court has both statutory and implied power to strike out an appeal in a minor case does not mean that strike out applications should be encouraged. An appeal in a minor case can only be made on limited grounds. It will usually be preferable for an appeal promptly to be determined on those limited grounds rather than for the resources of the court and of the parties to be used on whether or not the appeal has reasonable prospects of success or is an abuse of process. In my view in this case it is preferable to deal with both the strike out application and the appeal on this hearing, as the parties have agreed to do and on which they have presented argument, rather than deal solely with the issues raised on the National Australia Bank's application to strike out the appeal.
[150] Ninan [22].
These comments were echoed by Staude DCJ in Titelius who observed that except in the clearest of cases, a strike-out application is no more economical than a hearing of the appeal.[151]
[151] Titelius [57], [80].
With respect, I agree with these comments. The fact that I have struck out Grounds 3 and 4 pursuant to s 43(4) of the Magistrates Court Civil Proceedings Act in this case, should not be understood as an endorsement of strike out applications made pursuant to s 43(4) being heard separately from and in advance of, the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate to Judge Palmer
20 OCTOBER 2023
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