Krysiak v Housing Authority
[2020] WASCA 119
•27 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KRYSIAK -v- HOUSING AUTHORITY [2020] WASCA 119
CORAM: MURPHY JA
MITCHELL JA
HEARD: 24 JULY 2020
DELIVERED : 24 JULY 2020
PUBLISHED : 27 JULY 2020
FILE NO/S: CACV 156 of 2019
BETWEEN: EUGENIA KRYSIAK
Appellant
AND
HOUSING AUTHORITY
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
Citation: KRYSIAK -v- HOUSING AUTHORITY [2019] WADC 162
File Number : APP 59 of 2019
Catchwords:
Practice and procedure - Application for unqualified person to represent appellant - Principles to be applied - Appeal dismissed upon non‑compliance with springing order - Application for extension of time to comply with springing order - Relevant principles - No proper basis to extend time to comply with springing order
Legislation:
Nil
Result:
Application for appellant's son to represent appellant dismissed
Application for leave to extend time to comply with springing order dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
A v C [No 2] [2015] WASCA 199
Clark v Marine Fire & Security Pty Ltd [2005] WASCA 188; (2005) 146 IR 84
Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Krysiak v Carruthers [2013] WASCA 210
Krysiak v Hodgson [2009] WASCA 114
Krysiak v McDonagh [2013] WASCA 100
Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Schagen v The Queen (1993) 8 WAR 410
Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, NSWCA, 6 September 1994)
Simonsen v Legge [2010] WASCA 238
REASONS OF THE COURT:
This matter came to hearing on 24 July 2020 to consider the appellant's application filed 18 June 2020 to extend the time to file an appellant's case following the operation of a springing order dismissing the appeal, and for other orders.
The appellant's application filed 18 June 2020 sought, relevantly, the following:
1.an order to extend the springing order made by Justice Murphy to allow the [a]ppellant to amend her appellant's case to comply with the Supreme Court (Court of Appeal) Rules 2005 [(WA)];
2.leave to complete the appellant's submissions to allow for an average of three pages per ground limit for thirteen grounds;
3.leave to include an appendix to [the] appellant's submissions which is critical to understanding grounds 10 and 11 and aids clarity as the amount of submission footnotes is lessened[.]
On 22 July 2020, the appellant filed a further application, the effect of which was to seek to amend the application filed 18 June 2020 to include a further proposed order (order 4) in the following terms:
An order that Appellant be given leave to have her son, Tad Krysiak, act as her agent, with respect to the Appeal, as in the Courts below, based on the same principle.
The appellant's application to amend was allowed, and the application filed 18 June 2020 as amended by the application filed 22 July 2020 is referred to herein as the 'amended application'.
At the hearing of the amended application, the appellant,[1] an interpreter and the appellant's son sat at the Bar table. The appellant directly, and through the interpreter, made submissions to the court.
[1] The appellant was described by the primary judge as a 92‑year-old pensioner of Polish origin: primary decision [37].
We dismissed the amended application and said we would provide reasons. These are our reasons.
The substantive appeal is against a decision of Gething DCJ in Krysiak v Housing Authority [2019] WADC 162 (primary decision). The primary decision concerned an appeal by the appellant in the District Court. In that appeal, the appellant sought to set aside a default judgment in the sum of $1,543.27 granted in favour of the respondent (Housing Authority) in proceedings in the Magistrates Court brought by the Housing Authority to recover the appellant's share of the cost of repairing a dividing fence.[2]
[2] Primary decision [2], [12].
On 5 December 2019, Gething DCJ ordered that the appeal be dismissed and that the appellant pay the Housing Authority's costs in the appeal fixed in the amount of $7,500 to be paid by 31 January 2020.
Magistrates Court proceedings
On 31 January 2018, the Housing Authority lodged its general procedure claim (claim). The description of the claim was in the following terms:[3]
The [Housing Authority's] claim is for the sum of $1,027.89, being half of the cost incurred by the [Housing Authority] in repairing the dividing fence between the [Housing Authority's] property at 48 Purslowe Street, Mount Hawthorn WA and [the appellant's] property at 47 Tasman Street, Mount Hawthorn WA, less $10 already paid by [the appellant], which is due and owing by [the appellant] pursuant to the Dividing Fences Act 1961 (WA) and, in the alternative, at general law.
[3] Primary decision [5].
On 14 June 2018, the Housing Authority filed a Statement of General Procedural Claim.[4] The parties were ordered to lodge a Listing Conference Memorandum by 18 January 2019. By r 43A(3) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR), a Listing Conference Memorandum must be in the approved form and must include a concise statement of the issues of fact and law that the party contends will need to be determined, how each allegation of fact will be proved, details of witnesses each party is proposing to call, and should annex a statement of the intended evidence of each witness who is not an expert witness.[5]
[4] Primary decision [6].
[5] Primary decision [8].
On 6 November 2018, the Magistrates Court granted the appellant's son leave to represent her in the claim.[6]
[6] Primary decision [9].
On 22 January 2019, the Housing Authority filed an application for default judgment on that basis that the appellant had failed to file her Listing Conference Memorandum. [7]
[7] Primary decision [12].
On 24 January 2019, a registrar granted the Housing Authority's application for default judgment. Judgment was entered for $1,543.27, comprising the claim amount ($1,071.89), costs and interest (default judgment).[8]
[8] Primary decision [12].
On 13 February 2019, the appellant filed an application to strike out or stay the claim on the grounds that it did not disclose a valid cause of action and was an abuse of process (strike out application).[9]
[9] Primary decision [13].
On 12 March 2019, the appellant filed an application to set aside the default judgment. The appellant alleged that she was not aware that the Housing Authority had obtained a default judgment until receiving a letter from the Housing Authority on 27 February 2019. The appellant also claimed that she had not received a copy of the default judgment.[10]
[10] Primary decision [14].
On 14 June 2019, Magistrate Ward heard the appellant's strike out application and application to set aside the default judgment.[11] Her Honour delivered oral reasons on 21 June 2019.[12]
Decision of Magistrate Ward
[11] Primary decision [15].
[12] Primary decision [15].
The magistrate extended the time within which the application to set aside the default judgment could be brought until the date on which it was commenced, 12 March 2019.[13]
[13] Primary decision [16].
The magistrate then proceeded to consider the merits of the application to set aside the default judgment, in particular, whether the appellant's defence had any reasonable prospects of succeeding.[14]
[14] Primary decision [17], [19].
The appellant made nine arguments in this respect.[15] The magistrate found that all of the appellant's arguments were without merit. Her Honour concluded:[16]
In my view, based on the information before me and considering each of [the appellant's] responses to the claim both individually and cumulatively, that is together, in my view, the proceedings are a straight forward debt recovery based on the Housing Authority repair of the fences in circumstances where section [15(7)(b)] of the [Dividing Fences Act 1961 (WA)] applies, and in the alternative, an agreement between the parties.
In my view, the proceedings are neither factually or legally complex. In my view, this is one of the cases where it is a clear case that based on the evidence before me in the form of the affidavits, summary determination of the matter is appropriate, that is, the orders made - I am not persuaded by [the appellant] that the default judgment given in these proceedings should be set aside as I am [not] persuaded that [the appellant] has a reasonably arguable defence.
In my view, there is a high degree of certainty about what the outcome would be should the matter go to trial and, accordingly, the order I will make is that [the appellant's] application to set aside the default judgment lodged on 12 March 2019 is dismissed.
[15] Primary decision [19] ‑ [29].
[16] Primary decision [30].
The magistrate considered the strike out application for completeness. Her Honour dismissed the application on the basis that the appellant had not persuaded the court that the claim was misconceived, vexatious or an abuse of process.[17]
[17] Primary decision [31].
Magistrate Ward made orders in the following terms:[18]
1.[The appellant's] strike out [a]pplication lodged on 13 February 2019 is dismissed.
2.Time for [the appellant] to lodge her [a]pplication to set aside default judgment is extended to 12 March 2019.
3.[The appellant's] [a]pplication to set aside judgment lodged 12 March 2019 is dismissed.
4.No order as to costs.
[18] Primary decision [32].
Appeal to the District Court
On 12 July 2019, the appellant filed an appeal notice in the District Court against the decision of the magistrate.[19]
[19] Primary decision [34].
On 2 August 2019, the Housing Authority filed a notice of respondent's intention, stating an intention to take part in the appeal. The Housing Authority contended that the magistrate's decision should be upheld on the same grounds relied on by the magistrate.[20]
[20] Primary decision [36].
At the hearing before Gething DCJ, the appellant's son was granted leave to appear on behalf of the appellant in the appeal under s 39(1) of the District Court of Western Australia Act 1969 (WA).[21]
[21] Primary decision [37]. Section 39(1) of the District Court of Western Australia Act provides:
A party to an action, cause or other proceeding may appear before the Court in person or by a legal practitioner or by any person allowed by special leave of the presiding District Court judge, in any case.
The appellant's appeal notice contained six grounds of appeal.[22] The grounds of appeal also included a number of particulars. His Honour noted that a number of matters set out in the appellant's grounds of appeal overlapped. Gething DCJ summarised the issues which arose for determination, relevantly, as:[23]
[22] Primary decision [43].
[23] Primary decision [45].
•Was the default judgment regular?
•Did the magistrate fail to afford [the appellant] procedural fairness?
•Did the magistrate err in finding that the Housing Authority had standing to bring the claim?
•Did the magistrate err in concluding that the claim involved the repair of a dividing fence?
•Did the magistrate err in finding that [Dividing Fences Act 1961 (WA)] s 15(7)(a) did not apply?
•Did the magistrate err in finding that [Dividing Fences Act 1961 (WA)] s 15(7)(b) did apply?
•Did the magistrate err in finding that the notices issued by the Housing Authority were valid?
•Did the magistrate err in finding that [the appellant] agreed to the repair?
•Did the magistrate err in not finding that the Housing Authority had agreed to compromise the debt?
•Did the magistrate err in the exercise of her discretion in not setting aside the [d]efault [j]udgment?
•Did the magistrate act towards [the appellant] in a manner such as to give rise to a reasonable apprehension of bias?
•Did the magistrate err in dismissing the [s]trike [o]ut [a]pplication?
Gething DCJ made the following findings.
Whether the default judgment was regular
By ground of appeal 1.2, the appellant contended that the default judgment was contrary to r 20 in pt 5 of the MCCPR which deals with 'failure to defend a claim' and not failure to take a procedural step.[24]
[24] Primary decision [46].
The primary judge found that there was no merit in the appellant's contention. His Honour said:[25]
[I]t is the case the MCCPR pt 5 applies where there is a failure to defend a claim. However, by MCCPR r 43A(5), it also applies, except for r 24 and with any necessary modifications, to a default judgment made pursuant to MCCPR r 43A(5).
[25] Primary decision [49].
In oral submissions, the appellant added a further contention that the default judgment was irregular because the Housing Authority failed to serve the application for default judgment on the appellant as required by r 111 of the MCCPR.[26]
[26] Primary decision [50].
His Honour noted that r 21 in pt 5 of the MCCPR applies to a default judgment pursuant to r 43A(5) of the MCCPR. Rule 21 provides, relevantly, that 'a registrar may, in the absence of the parties, give default judgment against the defendant for a specified amount if … the claim … is for a liquidated amount …'. The claim was for a liquidated amount. Thus, r 21 applied to the default judgment, as did the exception to service in r 111(2)(a)(iii) of the MCCPR. Therefore, the Housing Authority was not required to serve the application on the appellant as it fell within the exception in r 111(2)(a)(iii) of the MCCPR.[27]
[27] Primary decision [51].
His Honour concluded that ground 1.2 had not been made out.[28]
Whether the appellant was accorded procedural fairness
[28] Primary decision [52].
The essence of ground 1.3 was that the grant of default judgment was contrary to the appellant's right to procedural fairness.[29]
[29] Primary decision [54].
Gething DCJ concluded that the mere fact that default judgment was granted against the appellant did not mean that she was denied procedural fairness. His Honour also noted that the appellant had taken advantage of her right to apply to have the default judgment set aside.[30]
Whether the Housing Authority had standing to bring the claim
[30] Primary decision [58].
Grounds of appeal 1.1, 2.1, 2.6 and 5.2 alleged, in essence, that the Housing Authority did not have standing to bring its claim because it was not an 'owner' for the purposes of the Dividing Fences Act 1961 (WA) (the Act).
The definition of 'owner', in relation to land, relevantly includes every person who:[31]
(a)jointly or severally, whether at law or in equity -
(i)is entitled to land for any estate of freehold in possession ...
…
but does not include any trustees or other persons in whom land is vested as a public reserve, public park or for such other public purposes as may be prescribed, or a person who has the care, control and management of a public reserve, public park or land used for such other public purposes as may be prescribed[.]
[31] Primary decision [22]; citing the definition of 'owner' in s 5 of the Act.
His Honour said that the registered proprietor for the land comprising 48B Purslowe Street was the State Housing Commission, which is to be construed as a reference to the Housing Authority.[32] The title is for an estate in fee simple.[33]
[32] Primary decision [66]; citing the Housing Act 1980 (WA) s 79.
[33] Primary decision [66].
Further, Gething DCJ said that 48B Purslowe Street is a residential property, and that the land was not vested in the Housing Authority as a public reserve or public park.[34] Nor did the Housing Authority hold the property for a prescribed public purpose.[35]
Whether the magistrate erred in finding that the claim related to the repair of a dividing fence
[34] Primary decision [66] ‑ [67].
[35] Primary decision [68] ‑ [70].
By grounds 2.2 and 4.2, the appellant contended that the claim related to the construction of a new dividing fence; not the repair of a dividing fence.[36]
[36] Primary decision [73] - [74].
His Honour considered that the issue was whether the new fence is in substance a repair, or the erection of a new fence of an entirely different character.[37]
[37] Primary decision [83].
Gething DCJ concluded that the magistrate did not err in concluding that the claim related to the repair of a dividing fence.[38] His Honour said 'there was a necessity to repair the [d]ividing [f]ence as a result of the storm damage'.[39] The evidence before him made it clear that the dividing fence was required to be replaced and the replacement Colourbond fence could be characterised as a standard Perth suburban fence.[40]
[38] Primary decision [85].
[39] Primary decision [84].
[40] Primary decision [84].
His Honour noted that grounds 4.1 and 3.3 were also addressed under this issue and that neither ground was made out.[41]
Whether the magistrate erred in concluding that s 15(7)(a) of the Act did not apply
[41] Primary decision [86] - [88].
By way of ground of appeal 2.3, the appellant contended that the magistrate erred in law in failing to strike out the Housing Authority's claim as her Honour accepted that s 15(7)(a) of the Act did not apply.[42]
[42] Primary decision [89].
Section 15(7)(a) of the Act applies to the repair of a dividing fence which has been constructed partly by one owner and partly by another owner. The effect of s 15(7)(a) is that each party shall bear the cost of repairing the part constructed by him or her.[43]
[43] Primary decision [89].
His Honour noted that the only contribution by the appellant to the construction of the dividing fence was that her husband, on completion of the dividing fence, immediately secured the ends of the fence to the existing side dividing fences with straps to the value of $10.[44]
[44] Primary decision [90].
Gething DCJ concluded that the magistrate did not err in concluding that there was no reasonable prospect that the appellant's contribution could amount to 'partial construction' of the dividing fence for the purposes of s 15(7)(a).[45]
Whether the magistrate erred in finding that s 15(7)(b) of the Act was applicable
[45] Primary decision [90].
The appellant contended by ground 3.1 that the magistrate erred in fact in accepting that a storm was the cause of the fence partially collapsing.[46]
[46] Primary decision [92]
Section 15(7)(b) of the Act relevantly provides that if:[47]
any dividing fence or portion thereof is damaged or destroyed by … storm … the owner … on either side of the fence may immediately repair it without any notice to the other owner and is entitled to recover half of the expenses of doing so from the owner of the adjoining land[.]
[47] Primary decision [93].
Gething DCJ noted that at the hearing before his Honour, and in a letter sent by the appellant's son on behalf of the appellant dated 21 September 2016 (consent letter), the appellant accepted that the fence was damaged as a result of the storm.[48]
[48] Primary decision [28], [95], [96].
His Honour concluded that the magistrate did not err in finding that s 15(7)(b) of the Act applied in the circumstances.[49] Further, it followed from this finding that the Housing Authority was not required to provide the appellant with notice, or obtain her agreement, before proceeding to repair the dividing fence.[50]
Whether the magistrate erred in finding that the notices given by the Housing Authority were valid
[49] Primary decision [97].
[50] Primary decision [98].
Ground 4.4 alleged that the magistrate erred in fact and law by accepting that the notices given by the Housing Authority to the appellant were valid for the purposes of the Act.[51]
[51] Primary decision [100].
The Housing Authority was not required to issue any notices to the appellant under s 15(7)(b). The Housing Authority went beyond the requirements under the Act. His Honour noted, '[s]o even if the notices issued were not valid, this does not give rise to a defence to the claim that had a reasonable prospect of succeeding'.[52]
[52] Primary decision [101].
Nevertheless, his Honour said that the consent letter demonstrated that the appellant had received notice by way of a letter dated 21 September 2016 issued by the Housing Authority.[53]
[53] Primary decision [102].
His Honour concluded that ground 4.4 had not been made out.[54]
Whether the magistrate erred in finding that the appellant agreed to the repair
[54] Primary decision [103].
Ground 3.2 contended that the magistrate erred in fact in finding that the appellant agreed to the new fence being erected as a 'repair'. Similarly, ground 4.3 alleged that the magistrate erred in fact and law in finding that the appellant had agreed to pay the Housing Authority the amount it claimed.[55]
[55] Primary decision [104].
The magistrate, having concluded that s 15(7)(b) of the Act was applicable, was correct to conclude that the Housing Authority did not require the appellant's agreement.[56]
[56] Primary decision [105].
His Honour said, '[s]o whether or not the consent letter amounts to an agreement does not give rise to a defence to the claim that had a reasonable prospect of succeeding'.[57]
[57] Primary decision [105].
However, in any event, his Honour considered that, on its face, the consent letter appeared to be a clear consent for the Housing Authority to proceed to repair the dividing fence by replacing it with a Colourbond fence.[58]
Whether the magistrate erred in not finding that the Housing Authority had agreed to compromise the debt
[58] Primary decision [106].
Ground 4.5 contended that the magistrate erred in fact and law in finding that the amount paid together with the terms offered to the Housing Authority by the appellant's son, which the Housing Authority accepted, did not discharge the debt the Housing Authority was claiming.[59]
[59] Primary decision [108].
This contention flowed from the issue relating to the application of s 15(7)(a) of the Act. The discharge of the debt was said to arise from the payment of $10 to the Housing Authority, on or about 11 May 2017, which was based on the appellant's contribution to the construction of the dividing fence.[60]
[60] Primary decision [109].
His Honour said that there was no factual basis for the contention that the Housing Authority accepted the payment of the $10 in full and final satisfaction of the amount the subject of the claim. Accordingly, the magistrate did not err in concluding that this contention did not give rise to a defence to the claim.[61]
Whether the magistrate erred in exercising her discretion not to set aside the default judgment
[61] Primary decision [110].
Grounds 4.6, 5.1 and 2.7 alleged, in effect, that the magistrate erred in the exercise of her discretion as to whether or not to set aside the default judgment.[62]
[62] Primary decision [112].
His Honour was not satisfied that the magistrate made any express error in the exercise of her discretion not to set aside the default judgment. Nor was he satisfied that the decision of the magistrate was so unreasonable or plainly unjust that he could infer that the magistrate failed to properly exercise the discretion to set aside a default judgment. The magistrate exercised her discretion, as she was required to do, 'so as to do justice between the parties having regard to the circumstances of the case'.[63] The magistrate had regard to the following:[64]
[63] Primary decision [126].
[64] Primary decision [126].
1.The dividing fence was damaged in a storm.
2.The Housing Authority advised the appellant, in writing, the repairs it proposed to do to repair the dividing fence, the cost of the repairs and the amount the Housing Authority would claim from the appellant.
3.The appellant was provided sufficient time to consider the proposed repairs.
4.The appellant consented to Housing Authority undertaking the proposed repairs.
5.The Housing Authority carried out the repairs in the proposed manner.
6.The appellant has the continuing benefit of the repairs.
7.The Housing Authority claimed from the appellant the amount it proposed.
Whether the magistrate acted in a manner such as to give rise to a reasonable apprehension of bias
The issue of bias was raised in ground 6 and further developed in the appellant's supplementary written submissions dated 2 October 2019 (October submissions) and 13 November 2019 (November submissions).[65] The November submissions identified the passages of the transcripts of the hearings relied on by the appellant in support of her submissions.[66]
[65] Primary decision [38], [127].
[66] Primary decision [130].
The November submissions relevantly provided:[67]
65.The learned magistrate made several comments and findings which could lead a reasonable person to conclude that she was perceivably biased towards the government, perhaps, it is suggested, from some misguided inclination that the government should not have the bear the total cost of dividing fences.
66.Some of this includes:
…
66.4'…the ensuring repairs … cost of repairs … that she has any entitlement to rely on section 15(7)(a)';
66.5'implicitly arising from the fact that [the appellant] agreed to the Housing Authority doing the repairs and approved its proposal'.
[67] Primary decision [130].
His Honour held that there was no basis for any reasonable apprehension of bias either in the transcript passages identified in the November submissions or more generally. The magistrate carefully considered all of the grounds of potential defence raised by the appellant. His Honour did not consider that a 'fair-minded lay observer might reasonably apprehend that the magistrate had not brought an impartial and unprejudiced mind to the proceedings'.[68]
[68] Primary decision [136].
The appellant also contended that the magistrate failed to provide adequate reasons.[69] His Honour noted that s 31 of the Magistrates Court Act 2004 (WA) places limits on the requirement of a magistrate to provide reasons.[70]
[69] Primary decision [137].
[70] Primary decision [138].
Section 31 of the Magistrates Court Act relevantly provides:
31.Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
His Honour concluded that the magistrate had complied with the requirements of s 31(1)(a) and (b) of the Magistrates Court Act. More generally, the reasons were more than adequate for the appellant to ascertain the basis for the decision and whether she had any grounds of appeal, and for his Honour to determine the appeal. Further, to the extent that the magistrate did not canvass all of the evidence, nor all the factual and legal arguments arising, in the case, that was permissible under s 31(1)(c) and (d) of the Magistrates Court Act.[71]
Whether the magistrate erred in dismissing the strike out application
[71] Primary decision [142].
Ground 4.7 challenged the magistrate's decision to dismiss the strike out application.[72]
[72] Primary decision [144].
His Honour said that the findings he had made meant that there was no basis to set aside the magistrate's decision to dismiss the default judgment application. Further, the issue of whether the magistrate erred in not granting the strike out application did not arise. Nevertheless, his Honour said that the reasons he had set out in his judgment were also to the effect that there was no basis to strike out the claim.[73]
[73] Primary decision [145].
The appeal to this court
On 23 December 2019, the appellant filed an appeal notice. The appeal notice was out of time. The appellant filed an affidavit on 23 December 2019 in support of an extension of time to file an appeal notice. The affidavit annexed a copy of an affidavit from her son also dated 23 December 2019. The appellant's explanation for the delay in commencing the appeal was to the effect that she received a copy of the primary decision by ordinary mail on 2 December 2019, and she was 'reliant' on her son to 'help [her] complete documents'.[74] The annexed affidavit from her son was to the effect that he had been busy, having 'obligated [himself] to help' close Polish family friends in relation to a 'dividing fence matter', and that this 'involved having discussions with … friends, attending the site on several occasions, writing letters to the other party …, compiling evidence, and letting them know of potential outcomes'. He said that he had to research issues in relation to adverse possession for his 'friends' claim'. He also said that once he had received the primary decision, he 'had to assist [the appellant] on deciding whether there was merit in appealing it or whether there was merit in proceeding to judicial review, and if so, which path would be undertaken'.[75]
[74] Affidavit of E Krysiak dated 23 December 2019, pars 2 - 3.
[75] Affidavit of T Krysiak dated 23 December 2019, pars 3 - 7.
On 30 December 2019, the Housing Authority filed a notice of intention indicating that it did not intent to take part in the appeal.
There were numerous delays in the prosecution of the appeal. The appellant sought and was granted a number of extensions of time to file an appellant's case.
On 22 April 2020, a registrar's notice to attend was issued for the parties to attend on 8 May 2020 for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal Rules) 2005 (WA) (Rules).
On 8 May 2020, it was ordered that:
1.The time for filing an appellant's case is extended to 4.00 pm 22 May 2020.
2.Unless the appellant files an appellant's case in accordance with order 1, the appeal is dismissed.
On 22 May 2020, the appellant lodged an appellant's case. The appellant's case was not accepted for filing because it did not comply with the Rules.
On 25 May 2020, a certificate of conclusion of the appeal was issued.
On 16 June 2020, the appellant filed a 'supplementary affidavit' sworn by the appellant. In the affidavit, the appellant deposed that she was sent an information package titled 'information for self-represented litigants' upon filing the appeal, which did not include a reference to r 38 of the Rules. The appellant stated that she relied on the Rules referred to in the information package when preparing her appellant's case and did not realise that she needed to comply with r 38. The appellant stated that she believes that the allegations relating to grounds 10 and 11 should be in tabular form to make it more 'effective and appropriate'. She annexed the proposed form of grounds 10 and 11 to the affidavit. Proposed grounds 10 and 11 were the same as those in the appellant's case not accepted for filing on 22 May 2020.
On 18 June 2020, the appellant filed the application referred to in [2] above. The affidavit in support was dated 12 June 2020 but not filed until 18 June 2020.
In the affidavit of 12 June 2020, the appellant deposed, in effect, that the registrar's order dismissing the appeal on 25 May 2020 did not specify which rules the appellant's case lodged 22 May 2020 failed to comply with.[76] The appellant stated that she had since sought and received clarification from the registrar as to the Rules that the appellant's case failed to comply with.[77] The appellant said that the appellant's case will be 'edited as much as possible' to comply with the Rules but sought leave to allow the length of submissions to be extended 'to allow for a reasonable exposition of the grounds for the benefit of the court by reducing hearing resources'.[78]
[76] Affidavit of E Krysiak dated 12 June 2020, par 4.
[77] Affidavit of E Krysiak dated 12 June 2020, pars 5 - 6.
[78] Affidavit of E Krysiak dated 12 June 2020, pars 13 - 14, referencing Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.
At the hearing on 24 July 2020, the appellant also handed to the court with leave, a document containing submissions headed 'Application: Intended Oral Submissions', to which we had regard.
Disposition
The application for the appellant's son to act as the appellant's agent in the conduct of the appeal
Order 4 r 3 of the Rules of the Supreme Court 1971 (WA) provides:
3.Individual may act in person or by solicitor; body corporate must act by solicitor
(1)Subject to subrule (2) and to Order 70 rule 2, any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the Supreme Court by a solicitor or in person.
(2)Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor.
The general rule, which is reflected in O 4 r 3,[79] is that the court will not allow an appearance by a person who has not been admitted to practise before it except in rare and exceptional circumstances.[80] That general rule is firmly grounded in the due administration of justice and the public interest served by it.[81] In Damjanovic, the court referred to the observations of Mahoney AP in Scotts Head Developments in relation to the general rule:[82]
It has long been regarded as based on considerations central to the proper administration of justice and the protection of the parties in the litigation. First, the Court has emphasised the importance, for the administration of justice, of the fact, that those permitted to appear before it owe a responsibility to the Court to ensure that the Court is properly informed and not misled: see Meek v Fleming [1961] 2 QB 366. In Ex parte Browne (1913) 13 SR (NSW) 593; 30 WN (NSW) 194 at 195 ‑ 196 at 597; Pring J referred to the importance of having, as the party before the Court, a person 'who was responsible to the Court, responsible to his client and responsible to the other party to the litigation'. See also Ex parte WA Grubb Pty Ltd; Re Johnstone (1949) 66 WN (NSW) 224 at 226, Tritonia, Ltd v Equity and Law Life Assurance Society …
Second, the Court has regard to the possibility of unqualified or untrained advocates interfering with the course of a proceeding before the Court and causing loss to the parties involved. Reference was made to considerations of this kind in Hubbard Association of Scientologists International v Anderson … and in Abse v Smith. Experience has shown that a proceeding conducted by a person unskilled in advocacy tends to last longer and to cost more. In determining whether to allow such an advocate to appear, the Court must have regard not merely to the position of the party for whom he seeks to appear, but also to that of the other party. The interest of the defendant in having the proceeding dealt with without unnecessary delay and cost is one which, in my opinion, is to be borne in mind.
Third, there remains the public interest in the effective, efficient and timeous disposal of litigation. The administration of justice requires that full assistance be available to the Court in determining the issues of fact and law which come before it. The isolation of issues and the presentation of the consideration which support one answer rather than another are things best done by a person experienced in such matters.
[79] Applied by virtue of pt 1 r 5 of the Rules.
[80] Schagen v The Queen (1993) 8 WAR 410, 412.
[81] Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 [37] ‑ [86]; Clark v Marine Fire & Security Pty Ltd [2005] WASCA 188; (2005) 146 IR 84 [24]; Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, NSWCA, 6 September 1994).
[82] Damjanovic [61].
The matters to which the courts have had regard in considering whether to exercise their discretion to allow an unqualified person to appear on behalf of unrepresented litigant include the following:[83]
[83] Damjanovic [69] - [86].
1.The complexity of the case - whether the case is one of complexity or whether it is minor or straightforward.
2.Any genuine difficulties faced by the unrepresented party, including matters such as an unexpected language difficulty and emergencies. The fact that a party has a poor command of English is not generally a reason to grant an unqualified person leave to appear on their behalf in circumstances where an interpreter is available.
3.The disadvantages to a party arising from having an unqualified and uninsured advocate appearing on their behalf where the advocate has no ethical obligation to the court, including duties of candour.
4.The risk that unqualified, unaccredited and uninsured lay advocates pose to:
(a)the party on whose behalf they appear - given that the lay advocate does not owe the same duties as a lawyer does to the client; and
(b)the opponent and the court in the absence of the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice.
5.Ordinarily, 'higher courts should be very chary at giving leave' given their role in the administration of justice, compared with the position of local courts or specialist jurisdictions and tribunals.
6.The interests of the public in achieving an effective, efficient and expeditious disposal of litigation in the courts which is most generally achieved by the parties employing qualified lawyers.
We were not satisfied that it was appropriate for the appellant's son to be given leave to represent the appellant in the appeal. In that regard, we considered the following matters:
1.Neither the amended application, nor the appeal itself (as noted below), involved any matter of complexity.
2.It was evident that the appellant had a reasonable command of English and, moreover, the court had provided the appellant with an interpreter in her native tongue.
3.The appellant had filed written materials in support of the amended application which made her position plain.
4.We were not persuaded (as noted below) that the appellant was the directing mind and will of this litigation, as opposed to her son.
5.The documents prepared on the appellant's behalf, apparently by her son, suggest a tendency for the appellant's son to unreasonably advance specious arguments on her behalf. Further, when granted leave to appear in the primary proceedings,[84] the appellant's son advanced submissions which appeared misguided and without proper basis. Those submissions doubtlessly increased costs in the District Court.
6.The son's conduct of the proceedings below has been detrimental to the appellant's interests. Ultimately, $7,500 in costs were awarded against the appellant in the District Court. The result of this litigation, which appears to have been instigated and directed by her son, has been to expose the appellant to a liability of over $9,000[85] in respect of the respondent's initial claim of just over $1,000 for the costs of repairing a dividing fence. She has also been exposed to the emotional stress of attending multiple court hearings.
[84] Primary Decision [37].
[85] Comprising the judgment sum, costs and pre-judgment interest in the Magistrates Court and costs in the District Court
We were conscious of the difficulty which the appellant, an elderly lady who professed and appeared not to fully understand the court process, faced in making oral submissions before this court. However, particularly having regard to the matters referred to at [85.5] and [85.6] above, to allow her son to act as her agent appeared contrary to both the appellant's interests and the interests of the proper administration of justice. Accordingly, we were not satisfied that it was appropriate for the appellant's son to purport to represent the appellant in this matter.
The application for an extension of time to comply with springing order
In A v C [No 2],[86] this court said:
[86] A v C [No 2] [2015] WASCA 199 [2] - [4].
It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity …
There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court[.]
There was no proper basis in this matter to extend the time for compliance with the springing order. First, the circumstances in which the springing order was made included not only (as is typically the case) that there had been previous delays and extensions granted in relation to the filing of an appellant's case, but also:
1.the appeal itself was commenced out of time,[87] and, although the delay was not great, the evidence as to the appellant's son being too busy was not a proper explanation for the delay;
2.the issues in the underlying dispute must be taken to have been well known and understood at least by the appellant's son, who has prepared the documents, having been canvassed both before Magistrate Ward and in the appeal to the District Court;
3.the subject matter of the decision under appeal involves, objectively, no questions of legal or factual complexity; and
4.the appeal ultimately stems from the appellant's failure to comply with a procedural order in the Magistrates Court designed to facilitate the determination of the dispute on its merits.
Further, the application to extend time to comply with the springing order was filed nearly a month after the springing order had taken effect.
[87] The respondent, accordingly, had a vested right to retain the judgment unless an application for an extension of time were granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459; Simonsen v Legge [2010] WASCA 238 [8].
Secondly, the appellant's explanation for not complying with the springing order is, in effect, that she was unfamiliar with the requirements of the Rules. Whilst it may be accepted that the appellant was unfamiliar with the Rules, the general conduct of this appeal, including, it may be inferred, the proposed appellant's case which was not accepted for filing, has evidently been undertaken not by the appellant, but by her son. We are not persuaded that the appellant's own unfamiliarity with the Rules is, in substance, the real or candid explanation for the non‑compliance. There is no evidence that the appellant's son is not familiar with the Rules, but even assuming that to be the case,[88] that was not the explanation proffered for non‑compliance.
[88] The appellant's son has been a litigant in person in this court before: Krysiak v McDonagh [2013] WASCA 100; Krysiak v Hodgson [2009] WASCA 114; Krysiak v Carruthers [2013] WASCA 210.
Thirdly, whilst the appeal will remain dismissed if an extension is not granted, there was nothing in the proposed appellant's case not accepted for filing, or in any other material before this court, to indicate any reasonably arguable error by the primary judge. Accordingly, we were not persuaded that any prejudice would be suffered by the appellant if an extension of time were not granted. Further, any question of prejudice to the appellant has to be seen in perspective - the judgment debt in the Magistrates Court was in the relatively small amount of just over $1,500, albeit that there was a costs award of $7,500 in the appeal to the District Court.
Fourthly, despite the springing order having sprung over two months ago, the appellant has still not placed before the court any proposed appellant's case which complies with the Rules. The history of the proceedings to date gives us no confidence in the appellant's capacity to comply with any order extending time for the filing of an appellant's case. In these circumstances, the continuance of the appeal would also objectively be prejudicial to the Housing Authority, although it may be accepted that no particular or special prejudice to the Housing Authority has been shown.
Fifthly, in circumstances where the appellant has had ample opportunity to file an appellant's case, the lingering uncertainty and absence of finality in relation to this dispute is inconsistent with more broader considerations which bear upon the proper administration of justice.
Finally, there was a further matter relevant to the question of prejudice to the appellant and the broader administration of justice. It was this. We were not persuaded that the appellant, as opposed to her son, has been the directing mind and will of this litigation, either in the Magistrates Court or in the District Court (which resulted in the appellant receiving an adverse costs order well in excess of the amount of the original judgment debt) or in the appeal to this court.
In all the circumstances, there was no basis for the grant of an extension of time as sought by the appellant. It was accordingly unnecessary to deal with the proposed orders 2 and 3 in the appellant's amended application, but, in any event, we were not satisfied that any proper basis had been established for the making of those orders either.
Conclusion
For these reasons, we made orders to the following effect on 24 July 2020:
1.The appellant's amended application is dismissed.
2.The appeal is and stands dismissed with effect from 22 May 2020 immediately after 4.00 pm that day.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy27 JULY 2020
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