Laughton v Marsh
[2019] WASCA 74
•16 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAUGHTON -v- MARSH [2019] WASCA 74
CORAM: MURPHY JA
MITCHELL JA
HEARD: 16 MAY 2019
DELIVERED : 16 MAY 2019
PUBLISHED : 16 MAY 2019
FILE NO/S: CACV 9 of 2019
BETWEEN: ANDREW LAUGHTON
Appellant
AND
SHARYL MARSH
JAMES GLYNN MARSH
Respondents
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
Citation: LAUGHTON -v- MARSH [2018] WADC 172
File Number : APP BUN 1 of 2017
Catchwords:
Practice and procedure - Appeal to District Court of Western Australia dismissed after failure to comply with order requiring payment for security of costs into court - Whether primary judge erred in dismissing appeal - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondents | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondents | : | Not taking part |
Case(s) referred to in decision(s):
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Laughton v Marsh [2017] WADC 141
REASONS OF THE COURT:
At the hearing on 16 May 2019, we ordered that this appeal be dismissed on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. These are our reasons for making that order.
Background
Boundary fence collapse
On or about 4 September 2012, the boundary fence between the appellant and respondents' properties in College Grove collapsed. That fence sat atop a retaining wall which supported the higher ground on the common boundary. That retaining wall was also damaged, taking on a slight curve and lean into the appellant's property.[1] The strip of land between the properties is a sewerage easement containing a sewer and inspection points installed in 1991.[2]
Magistrates Court proceedings
[1] Magistrates Court ts 17 August 2016, 85.
[2] Magistrates Court ts 17 August 2016, 89.
On 28 April 2015, the appellant commenced proceedings in the Magistrates Court, claiming damages in negligence for the replacement of the boundary fence, reinforcement of the retaining wall and removal of the 'extra overburden loading'.[3] The appellant alleged that 700 mm of sand was stacked against the fence on the respondents' side, which an engineer's report showed could cause the retaining wall to collapse.[4]
[3] Magistrates Court General Procedure Claim lodged 28 April 2015.
[4] Magistrates Court General Procedure Claim lodged 28 April 2015.
A trial took place in the Magistrate's Court on 16 - 17 August 2016. At the conclusion of the trial, the magistrate delivered oral reasons for dismissing the appellant's claim. The claim was dismissed essentially on the basis that there was no evidence that the respondents put extra soil against the fence as alleged by the appellant.[5] The magistrate also rejected the appellant's contention that the respondents had a positive duty to remove sand from the sewage easement area where it came against the fence.[6] The magistrate provisionally assessed damages in the amount of $27,008.50, against the contingency that her Honour might be found to have erred in dismissing the appellant's claim.[7]
[5] Magistrates Court ts 17 August 2016, 94.
[6] Magistrates Court ts 17 August 2016, 94 - 95.
[7] Magistrates Court ts 17 August 2016, 97.
The magistrate made orders dismissing the appellant's claim and ordering that he pay the respondents' costs of the claim.
District Court proceedings
On 23 January 2017, the appellant filed an appeal notice in the District Court of Western Australia, appending 17 grounds of appeal in an affidavit dated 4 January 2017. That appeal was made pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
On 25 May 2017, the respondents filed an application to strike out the appeal notice, and in the alternative sought security for costs. That application was heard on 21 July 2017 before the Principal Registrar of the District Court.
On 30 October 2017, the Principal Registrar delivered judgment, striking out five of the appellant's 17 grounds of appeal, and partly striking out another ground. The Principal Registrar made an order that:
Within 28 days the appellant pay $13,000 into court by way of security for costs and that in the meantime all further proceedings be stayed.
The Principal Registrar published written reasons for his decision.[8]
[8] Laughton v Marsh [2017] WADC 141.
On 1 March 2018, the respondents applied for the appeal to be dismissed on the basis that the security for costs had not been paid. On 24 May 2018, a deputy registrar made an order dismissing the appeal for non-compliance with the security for costs order,[9] and made ancillary costs orders.
[9] Order Deputy Registrar Harman 24 May 2018; Laughton v Marsh [2018] WADC 172 (Primary Decision) [7].
On 6 July 2018, the appellant filed an appeal notice against the order of the deputy registrar dismissing his appeal.[10] The appellant's right of appeal was conferred by r 15(1) of the District Court Rules 2005 (WA). The appeal from a registrar to a judge of the District Court involves a hearing of the matter de novo.[11]
[10] Appeal notice filed 6 July 2018. As noted at Primary Decision [4], that appeal notice was subsequently purported to be amended by a further appeal notice filed on 2 November 2018.
[11] See Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 - 29
On 21 November 2018, the primary judge made an order dismissing the appeal from the decision of the deputy registrar. His Honour delivered ex tempore reasons for that decision, which were subsequently converted to written reasons. In essence the primary judge concluded that the appeal should be dismissed in circumstances where:
(1)the order requiring payment of $13,000 into court as security for costs was made on 30 October 2017;
(2)that order had not been complied with over 12 months after it was made, and there was no evidence that the appellant had made or attempted to make the payment into court;
(3)nothing in the material indicated that there was a prospect of payment being made in the near future; and
(4)given the appellant's responses to questions about his financial position, there would be no utility in making a springing order which gave the appellant a final opportunity to pay the money into court in a short period.
The appeal to this court
On 22 January 2019, the appellant filed an appeal notice in this court against the decision of the primary judge. Such an appeal is provided for by s 42 of the Magistrates Court (Civil Proceedings) Act.
The appellant made a number of failed attempts at lodging an appellant's case, and received a number of extensions of time in which to do so. Eventually, on 12 April 2019, an appellant's case was accepted for filing, although it does not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA). The appellant also sought and was granted leave to rely on his affidavit affirmed in the District Court on 24 April 2019, although that affidavit does not assist in the resolution of the matters arising for our determination today.
Disposition
The appellant's case contains 14 grounds of appeal, which are prolix and not conveniently reproduced here.
Ground 2 in effect contends that the Principal Registrar's order did not specify the court into which the $13,000 was to be paid. There is no merit in that ground. It is clear from the context in which the order was made that the security for costs was to be paid into the District Court (being the court in which the order was made) and not some other court.
Grounds 3 and 7 challenge the primary judge's conclusion that the appellant had not complied with the Principal Registrar's order. There was no affidavit or other evidence (as opposed to assertions not made under oath or affirmation) that the appellant had paid or attempted to pay the money into court. Although the appellant refers to affidavits in his grounds of appeal, those affidavits do not appear on the District Court file. The appellant was unable to identify affidavits deposing as to payment or attempted payment of security for costs at the hearing before the primary judge.[12] In any event, the appellant's assertions in other documents that the money had been paid indicate that the payment had been made to the Bailiff's office.[13] It may be inferred that this payment was made to satisfy the appellant's costs liability under orders made in the Magistrates Court, rather than the requirement for security for costs.
[12] District Court ts 24 - 31.
[13] Evidence of payment to the Bailiff's office was contained in par 5 of the appellant's affidavit in the District Court sworn 9 November 2017.
Ground 10 challenges the conclusion referred to at [11](4) above. There is no merit in that ground. At one stage the appellant indicated to the primary judge that he would be in a position to pay the security for costs in a short time frame if given the opportunity.[14] Subsequently, however, the appellant indicated that he would need to borrow the money and he did not know how quickly he could get it.[15] The primary judge fairly characterised the appellant's response to a proposal for a springing order giving the appellant 48 hours to make a payment into court as 'obfuscation'.[16] It was open to the primary judge to conclude that there was no utility in making a springing order in these circumstances.
[14] District Court ts 32 - 33.
[15] District Court ts 44 - 45.
[16] Primary Decision [24].
Ground 14 seeks to impugn the Principal Registrar's order requiring the payment of security for costs. However, that decision was not the subject of the appeal to the primary judge. In any event, nothing in the particulars to ground 14 provides any basis for doubting the correctness of the Principal Registrar's order.
The balance of the grounds attempt to raise issues which could not impugn the central conclusions noted at [11] above or result in the appeal being allowed and the primary judge's decision being set aside.
As none of the appellant's grounds have any reasonable prospects of success, we made the order dismissing the appeal at the conclusion of the hearing on 16 May 2019. As the respondents are not participating in the appeal, we made no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell16 MAY 2019
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