Laurent v Armstrong
[2015] WADC 101
•2 OCTOBER 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: LAURENT -v- ARMSTRONG [2015] WADC 101
CORAM: STAUDE DCJ
HEARD: 30 JULY 2015
DELIVERED : 2 OCTOBER 2015
FILE NO/S: APP 1 of 2015
BETWEEN: GERALD JEAN NOEL LAURENT
Appellant
AND
CASSANDRA ARMSTRONG
BARBARA ARMSTRONG
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE LAWRENCE
File No :GER 328 of 2012
Catchwords:
Appeal - Appeal from summary judgment and consequential orders - Minor case claim - Jurisdictional error - Whether magistrate had jurisdiction to give summary judgment - Whether magistrate had jurisdiction to award indemnity costs - Whether magistrate had jurisdiction to order security for costs - Effect of failure to order that general procedure apply
Legislation:
Magistrates Court (Civil Procedure) Act 2004
Result:
Appeal allowed
Action remitted to be dealt with in accordance with the minor case procedure
Representation:
Counsel:
Appellant: In person
Respondents : Mr R Arndt
Solicitors:
Appellant: Not applicable
Respondents : Ryan Arndt Barrister and Solicitor
Case(s) referred to in judgment(s):
Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176
Craig v The State of South Australia (1995) 184 CLR 163
Laurent v City of Greater Geraldton [2013] WASAT 57
Re Carey; ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501
Rodwell v Hutchinson [2010] WASCA 197
Water Authority v AIL Holdings Pty Ltd [No 2] (1992) 10 WAR 235
Wise v Proprietors of Strata Plan 21513 [2009] WADC 115
STAUDE DCJ:
Introduction
In 2010 the appellant built a brick wall as a dividing fence between his property at 2 Admiral Link, Wandina, and the neighbouring property at 4 Admiral Link, then a vacant lot.
After the wall had been substantially constructed, 4 Admiral Link was purchased by the first-named respondent, Cassandra Armstrong. The appellant approached her for a contribution to the cost of the wall. When Ms Armstrong made enquiries of the local authority as to what constituted a sufficient fence for the purposes of the Dividing Fences Act 1961, it was revealed that the appellant had not obtained a building licence prior to the construction of the wall. Subsequently, the wall was found to be constructed wholly inside the neighbouring property and to otherwise be structurally defective and incomplete.
The City of Greater Geraldton (City) refused the appellant's application for a building approval certificate pursuant to s 374AA(2) of the Local Government (Miscellaneous Provisions) Act 1960. The City subsequently served a statutory notice requiring the appellant to remove the wall.
On 23 July 2012, the appellant lodged a minor case claim alleging financial loss in the amount of $9,900.00 arising from the respondents' conduct in relation to the dividing fence. He also commenced a claim pursuant to the Dividing Fences Act (GER 339 of 2012) which was later discontinued. The minor case claim (Form 4) dated 23 July 2012 contained the following description of claim:
At the direction of the defendants and upon agreement to complete work for approval regarding fence I sustained financial loss due to the defendants' act and omission (unlawful) for not putting in place preventative measures to remedy financial loss:
1.Loss of opportunity time to work earn income;
2.Seek to subject malicious (unlawful) behaviour to cause detriment or advantage that a reasonable person knew or ought to have known that would cause financial loss, suffer injury sustained and suffered; and
3.Adequately deal with orders sought of defendant and others to prepare, complete work, that a reasonable person knew or ought to have known that would not progress where I would suffered financial loss, injury sustained and suffered.
The listed grounds are related to a fence and progression of a fence that is situated between 2 and 4 Admiral Link, Wandina, Geraldton, WA, 6530. The agreement and malicious behaviour was agreed upon and subjected between 2011 and 2012. [sic]
A minor case claim is one for less than $10,000: Magistrates Court (Civil Proceedings) Act 2004 (MCCP Act), s 3(1). Section 27(1) provides that the primary object of the court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties. Section 27(2) provides that the court may do all things and take all such steps as it considers to be appropriate to achieve that primary object. If the court is unable to bring the parties to a settlement the court must deal with the minor case: s 27(4).
Section 28(1) provides that the court must deal with a minor case in accordance with the minor cases procedure unless an order has been made under s 28(2) or s 28(3). In this case the learned magistrate at no time made an order that the appellant's claim be dealt with under the general procedure. Section 3(1) defines 'minor case procedure' to mean the procedure prescribed by pt 4 and the rules of court made for the purposes of pt 4.
Section 29 provides that minor case proceedings be held in private with as little formality as the court thinks is reasonable. It also provides that the court is not bound by rules or practice as to evidence, but may inform itself on any matter in such a manner as it thinks fit.
Section 30 provides that a party to a minor case is not entitled to be represented by a legal practitioner except in the circumstances set out in s 30(4). In this case the learned magistrate gave leave to the parties to be represented 'on the basis that the claimant's idiosyncratic approach to the proceedings would make it exceptionally difficult for a lay person to even discern the gist of some of the claimant's submissions and contentions' (reasons [4] – [5]).
Section 31 limits a successful party in a minor case to 'allowable costs' being court fees and service fees and the costs of enforcing a judgment, but provides that the court may order the payment of the successful party's other costs in the circumstances set out in s 31(3), relevantly, where the court is satisfied that because of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid, or that the unsuccessful party's claim or defence was wholly without merit.
Minor cases are also governed by the Magistrates Court (Minor Cases Procedure) Rules 2005. Rule 5 provides that unless the court orders otherwise the rules apply in every minor case. Rule 6A provides that the court's powers in pt 3 of the MCCP Act, except s 14, s 18 and s 25, may be exercised by the court in every circumstance. Notably, s 18 is the provision which empowers the court to give summary judgment. Section 25 sets out the powers of the court with respect to costs.
Section 17 is not exempted by r 6A. It affords power to strike out a case statement (defined by s 3 to mean 'a statement of a party's claim, or of a party's defence, whether as originally lodged with the court or amended or as supplemented by additional information given voluntarily or as ordered by the court') in prescribed circumstances and to give judgment if all of the case statement is struck out.
It is clear from the description of claim in the appellant's Form 4 that the applicant had considerable difficulty in formulating and expressing his claim. This and later iterations of the claim (which will be set out below) are linguistically and legally incomprehensible. The appellant's inability to articulate his grievance is a conspicuous feature of this case and has contributed to a relatively simple dispute between neighbours becoming a protracted and costly (to the respondents) litigation that will remain unresolved irrespective of the outcome of this appeal.
Appeal
The appeal is from an interlocutory order. The respondents brought an application for summary judgment which was allowed in part by his Honour Magistrate Lawrence on 20 January 2015. The learned magistrate ordered that:
1.There will be summary judgment for the defendants on that portion of the claim, described by the claimant in paragraphs 1 to 4 inclusive of the Amended Statement of Claim lodged on 26 August 2014; that portion of the claim (the original fence issue) is dismissed.
2.The claimant is to pay the costs of the defendants on an indemnity basis in relation to the portion of the original and Amended Statement of Claim referred to in Order 1 of these orders, to be taxed unless agreed.
3.The document prepared by the claimant described as 'Application's full Grounds' and 'Full Statement of Claim' is to stand as the Further Amended Statement of Claim in relation to the issue of water allegedly running from the defendant owner's property onto the property the [sic] occupied by the claimant ('the water issue').
4.The affidavit prepared by the claimant and sworn by him at Geraldton on 4 December 2014 is to stand with the document referred to in Order 3 of these orders as part of the further Amended Statement of Claim in relation to the issue of sand moving from the defendant owner's property onto the property occupied by the claimant ("the sand issue").
5.The defendants are to file any defence to the Amended Statement of Claim and the Further Amended Statement of Claim within 28 days of the date of these orders.
6.The claimant is to pay those costs of the defendants' application lodged on 6 October 2014 after due allowance for the fact that the application was successful in relation to the water issue and the sand issue.
7.Leave is granted for the claimant's original claim of 'breach of contract' in relation to the issue that first arose with the fence constructed or caused to be constructed by the claimant to be discontinued.
8.The claimant is to pay the defendants' costs of and incidental to the application lodged by claimant on 10 December 2014.
9.The claimant provide security for the defendants' costs in the sum of $5,000.00 by way of payment into court.
10.The claimant pay the defendants' costs incurred as a result of the application lodged by the claimant on 10 December 2014 forthwith, fixed in the sum of $1000.
11.The claimant's action be stayed until the claimant complies with orders 9 and 10.
The appellant appeals to this court from the order as a whole. As the appeal is from an order made in a minor case, the right to appeal is restricted.
Section 32(3) of the MCCP Act provides:
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.
On 1 April 2014, Scott DCJ, on the respondents' application to strike out the appeal, ordered that:
1.The grounds of appeal of 6 March 2015 be struck out.
2.Grounds 1 and 2 of 19 March 2015 stand as grounds of appeal.
Programming orders were also made.
The effect of the order of Scott DCJ was to restrict the appellant to the following grounds pleaded in a document dated 19 March 2015:
1.The court erred in law goes wrong in wrong jurisdiction of application and power in that it denied natural justice [sic].
2.The court erred in law natural justice issues matter in actual bias and apparent bias that led to prejudice in the onset of the court's actions (in original grounds) that was not remedy in hearing case and incorrect jurisdiction power being a minor case (being ground 1) [sic].
It is unnecessary to recite the 16 original grounds of appeal dated 21 January 2015, or the grounds that were struck out.
Put simply, the issues in this appeal are whether the appellant was denied natural justice by reason of actual or apparent bias on the part of the learned magistrate and whether the learned magistrate had the power to make the order. As I understand the appellant's position, he is aggrieved by the orders in pars 1, 2, 6, 8, 9 and 10, being the order for summary judgment on part of his claim and the costs orders. I do not accept the respondents' submission that the appeal is from the order for summary judgment only.
At the hearing of the appeal, the court did not have the relevant transcripts or the respondents' outline of submissions. These were obtained subsequently.
On 17 August 2015 I caused my associate to write to the parties inviting the parties to make further written submissions on the question of whether the learned magistrate had jurisdiction to order summary judgment and costs having regard to s 28(1) of the MCCP Act and r 6A of the Magistrates Court (Minor Cases Procedure) Rules 2005, this issue having not been addressed in the hearing.
The appellant's submissions dated 20 April 2015 [sic] were received by email on 21 August 2015. They misapprehend the court's request, make inappropriate concessions, are incoherent and do not assist.
The respondents, by their submissions dated 27 August 2015, concede that summary judgment is not available in a minor case, but argue that the effect of the order was to strike out the relevant paragraphs of the appellant's pleading. In the respondents' submission it should be viewed as having been made under s 16 or s 17 of the MCCP Act. The learned magistrate's error is submitted to be one of form.
The proceedings below
The appellant's original grievance against the first-named respondent Ms Cassandra Armstrong was that she had agreed to the construction of the wall and was therefore under some form of obligation to make an application for a building approval certificate in order to save the wall from demolition, the appellant conceding that her loss of land was compensable pursuant to the Dividing Fences Act 1961. Ms Barbara Armstrong, the second-named respondent, is Ms Cassandra Armstrong's mother. She was joined because the appellant had initially spoken to her regarding a contribution by her daughter to the cost of the wall and had allegedly entered into correspondence with the appellant in relation to the fence.
Relevantly, the appellant had, prior to lodging his minor case claim, commenced applications in the State Administrative Tribunal (SAT) for reviews of the City's decisions to refuse his application for a building approval certificate and to issue a notice requiring him to remove the wall.
On 10 December 2012 the SAT found that the appellant was not entitled to make such an application as the wall was on his neighbour's property: Laurent v City of Greater Geraldton [2013] WASAT 57. The SAT further held that if the application had been made on behalf of the owner of the wall (Ms Cassandra Armstrong), and were otherwise valid, it would have been refused on account of the defects in construction. On that basis the SAT dismissed the appellant's application for review of the City's refusal of his building approval certificate application.
The SAT also found that a notice issued by the City pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act requiring him to remove the wall was valid, and ordered that the appellant's application for a review of the City's decision to issue that notice be dismissed.
The respondents filed a Form 15A Response to a Minor Claim on 27 July 2012. The first record of a hearing before the court is a Form 18 Notice of Intention to Defend – Minor Case and Pre-trial Conference issued on 31 July 2012 appointing a pre-trial conference before a registrar on 5 September 2012. On 5 September 2012 the registrar made orders for the lodgement and service of a Form 20 Statement of Minor Claim and a Form 22 Statement of Defence and the exchange of discovery on oath. No further pre-trial conference was ordered. The matter was adjourned to a listing conference on 16 October 2102.
The appellant lodged a document headed 'Summary of Facts to Support Form 19' on 19 September 2012. In it he contended that the previous owner of 4 Admiral Link had agreed to the building of the wall and that the second-named respondent had agreed to pay half the cost of a metal fence and to make a building approval certificate application to the City upon completion of the wall. He alleged that he had suffered damage as a result of the first-named respondent's 'change of mind'.
The respondents lodged a Statement of Defence dated 29 September 2012. It was the respondents' position that they had offered to permit the fence to remain provided it was completed in accordance with structural engineering requirements and that they had offered to sign a building approval certificate application, but that the appellant rejected this proposal.
On 16 October 2012 the case was adjourned by a magistrate to 4 December 2012. On that date it was further adjourned to 26 February 2013. On 26 February 2013, the appellant's minor claim was listed before his Honour Magistrate Lawrence. On that occasion Ms Cassandra Armstrong told the court:
I'd just like to say, first of all, we have been more than willing to try and resolve this fence. We have never at any point denied signing an application for any further [sic]. He hasn't provided it to us. After SAT meeting with the Council he was supposed to supply us with that. Also in regards to the insurance, yes, we wanted to see insurance because we were told by the Council if the wall was to fall down, damage property or hurt someone, then, the wind in the way that it was coming, if something were to happen, that would be my responsibility as it's on my land.
I've never seen any insurance sent to me. No insurance was sent to me, so yeah, that, what Mr Laurent is saying is definitely incorrect because, you know, we were more than willing to sign a building application form, but we have never told him that he must keep the fence and must – we have always given him an option. We've either told him he can (a) either finish off the fence, get a building licence and were happy for him to leave it there, or otherwise he is to pull the – if he is not going to do that then he was just to pull the fence down and we would get a metal fence put up in the right location and that would solve the issue.
We have always just been more than willing with – this has been going on for years. We've always just been more than willing to try and resolve the issue. We've even done the right thing and got involved with the SAT between and the Council to try and get it resolved, so it's just incorrect to say that we've been forcing him to incur all these expenses. They were all on his behalf.
The appellant then proposed that an application be obtained and signed by Ms Cassandra Armstrong. However, as Ms Cassandra Armstrong observed, it was too late to do so as the City required that the wall be removed. At that point a prosecution had been commenced by the City against the appellant for his failure to remove the wall. The matter was adjourned to 26 March 2013. It is not clear what happened on that date, but the court record shows that on 16 June 2014 the matter was adjourned to a listing conference on 22 July 2014. Apart from the transcript of the hearing on 26 February 2013, there is no record of any attempt by the court to mediate a settlement acceptable to both parties in accordance with s 27(1).
On 22 June 2014 the respondents brought an application for an order that they have leave to be represented by a legal practitioner. That application was supported by an affidavit sworn by Ms Barbara Armstrong on behalf of herself and Ms Cassandra Armstrong. Ms Armstrong deposed to having sought legal advice at the suggestion of the magistrate. She said that the claim was complex and confusing and involved extensive evidence, including evidence which had been given in other proceedings. She also deposed to having had difficulty understanding the basis of the claim.
On 22 July 2014 Magistrate Lawrence ordered that each of the parties have leave to be represented by a legal practitioner. It was also ordered that the appellant have leave to serve an amended statement of claim and that the respondents have corresponding leave to lodge and serve a further statement of defence in response. The matter was otherwise adjourned to a listing conference on 28 October 2014.
On 26 August 2014 the appellant filed a statement of minor case claim in the following terms:
1.I am seeking financial compensatory damages because of the defendants' actions for want to engage me to seek professional services and work to engage contractors to build a brick fence on 4 Admiral Link, Wandina on the north side adjacent to 2 Admiral Link, Wandina.
2.I suffered mental suffering and pain in suffering loss of time and financial loss.
3.In 2013 and 2014 I was informed that the defendants changed their minds and proceeded to build a metal fence in 2013 or 2014.
4.In 2014 I received correspondence from the defendants seeking that I pay for the metal fence on their property.
3.[sic]I seek financial damages because in 2013 and 2014 the defendants were made aware that storm water on their property was affecting structures on my property. The defendants claimed that this was their problem and would deal with the matter to resolve the issues, which, to present, is still and issue and is continuing to cause damage to structures on my property. The defendants knew and ought to have known that this delayed the completion of property due to damage to structures on my property.
It can be seen that this document raised a fresh complaint of water damage occurring in 2013 and 2104, after the commencement of the claim. I note that as a matter of principle, a statement of claim may not be amended to plead a cause of action arising after the commencement of the writ: Water Authority v AIL Holdings Pty Ltd [No 2] (1992) 10 WAR 235. This point would not appear to have been taken, and arguably may not be applicable to minor procedure claims where the object of the procedure is to bring the parties to a settlement and where the legal process for doing so is informal.
The respondents' solicitor Mr Arndt filed their statement of defence on 23 September 2014. The respondents denied that they had engaged in any conduct which would ground any claim in contract or tort. They denied that they were under any duty to engage the appellant or any other person to seek professional services or engage contractors for the construction of a brick fence or otherwise. They denied that the appellant suffered any loss and contended that Ms Cassandra Armstrong had a right to construct a sufficient fence at or near the boundary between her property and 2 Admiral Link. They denied sending any correspondence to the appellant of the kind alleged, but asserted that Ms Cassandra Armstrong had a right under the Dividing Fences Act to seek a contribution from the appellant. Specifically, the respondents denied that any act or omission by them had caused any damage to the appellant's property or any delay in the construction of any structure thereon.
On 6 October 2014 the respondents filed an application for summary judgment and costs on an indemnity basis, alternatively, for an order that the statement of claim filed on 26 August 2014 be struck out, and consequential orders.
The application was supported by affidavits by the respondents and submissions lodged on 6 October 2014 which argued, in essence, that the appellant's claim should be struck out pursuant to s 18 of the MCCP Act on the basis that the appellant's claim had no reasonable chance of succeeding. It was argued that neither the statement of minor case claim dated 26 August 2014 nor any previous iterations of the appellant's claim disclosed any cause of action. No claim lay against Ms Barbara Armstrong as she was not a proprietor or occupier of 4 Admiral Link. No tortious or contractual duty, nor any breach thereof, was alleged against Ms Cassandra Armstrong.
On 10 October 2014 the appellant lodged an affidavit in which he stated:
I am the owner of the property situated at 2 Admiral Link, Wandina.
3.In 2013 and 2014 the respondent build or had build [sic] structure to convey house storm waste water to the northern side of their property on towards structure on the lower side of 2 Admiral Link, Wandina.
4.The impact of heavy water has interfered with the composition of the wall and its structure. I am informed by a qualified structural engineer, if allowed to continue, the water will affect the compacted soil under the footing of the brick wall thus weakening the brick wall.
5.I am prohibited to complete the fence by painting the wall because due to its moisture content.
6.I suffered about six months loss of time to complete the property for financial reward.
7.I seek to produce evidence such as videos and photographs at the direction or as the court sees fit to order exchange of documentation [sic].
The appellant lodged a counter-application on 10 October 2014 for the following orders:
1.The applicant seeks to rely on this form, form 24, and the applicant's affidavit to show summary claim of damage to property of 2 Admiral Link, Wandina ("the property") and the applicant seeks to amend the grounds to include malicious and/or nuisance behaviour emanating from the respondent that caused damage. (The full facts to be preferred to be present upon direction of the court to do so).
2.The applicant seeks to withdraw the matter that refers to claim of breach of contract to have build [sic] a brick fence.
3.The applicant only seeks damage reference to the brick fence boardering [sic] respondent's property 4 Admiral Link, Wandina, however, on 2 Admiral Link, Wandina. And damage due to loss of time in the completion of the build property for reward.
4.The applicant seeks to rely on video evidence and evidence to affirm that the heavy water affecting property has caused damage. The refusal accept applicant's offer to remedy this occurrence is malicious and nuisance behaviour.
5.The applicant has to deal with soil erosion and had to seek a delay in painting the fence by another party to improve property because of heaving water emanating from the respondent's property.
6.The applicant seeks from the respondent information, documentation, things that refers or relates to the remedy work towards the build of the pavers and storm water catchment situated at 4 Admiral Link, Wandina [sic].
On 28 October 2014, the return dates of the applications, the hearing of both was adjourned to 9 December 2014.
On 4 December 2014 the appellant filed a document headed 'Applicant's Full Grounds'. This document is a submission opposing the respondents' application for summary judgment. This submission makes it clear that his claim, by that stage, was limited to damages for structural damage caused by the flow of storm water from 4 Admiral Link to his property. At par 4(f) the appellant states that he intended to withdraw the original grounds for his claim and to proceed solely on the basis of a claim for water damage. At par 22:
My claim relies in common law principles and legislative enactment not to trespass on someone else's property, being 2 Admiral Link, Wandina, without consent and cause damage. My claim in law is that damage was suffered due to unretained storm water penetrating structure wall and affecting my structure, leading to claims of collapse [sic].
The appellant filed an affidavit sworn 4 December 2014. In par 10 he stated:
I seek that the court only deals with the water damage and withdraws the remaining matters due to points 1 to 9 [sic].
This affidavit was lodged in support of an application filed 4 December 2014 seeking the following orders:
1.To amend the original grounds.
2.To deal with the water damage to property claim only and set aside other.
4.[sic]To deal with legal representation of parties.
5.To struck out the defendant's application due to error in affidavit.
6.To order the parties to remedy for Admiral Link, Wandina waste water, the conveyance, its driveway height on land, and full retention of water penetration and interferring [sic] with property on 2 Admiral Link, Wandina.
7.To respond to appellant's and other party's claims, represent a case, and/or argument reference to the above.
8.To apply for documentation [sic].
I have read the transcript of the hearing before the learned magistrate on 9 December 2014. The appellant made it clear in his submissions that he wanted to be able to proceed to trial on the claim for water damage (ts 57 – 58, 64). He submitted to the learned magistrate (from ts 65) that he did not wish to proceed with the claim on the basis set out in his original minor case claim as the respondent's conduct was relevant to his defence of a prosecution by the City for failing to comply with the notice requiring the removal of the wall pursuant to s 401 of the Local Government Miscellaneous Provisions Act. I understand that his application to amend his minor case claim so as to limit it to a claim for water damage involved no concession as to the merits of the original claim.
On 10 December 2014, the day after the hearing of the applications (and prior to the delivery of his Honour's decisions), the appellant, made a further application for orders that:
1. Stay of proceeding for correct jurisdiction application.
2. Vacate of proceeding upon acceptance of application.
Alternative:
3. List matter for argument for correct jurisdiction application.
The respondents filed a counter-application on 24 December 2014 seeking orders as follows:
1.The claimant's application dated 10 December 2014 be dismissed.
2.The claimant pay the defendant's costs of and incidental to the application.
3.The claimant be restrained from filing any further application prior to the court giving its decision on the defendant's application for summary judgment filed 6 October 2014.
In the event the court does not grant order 1 of the defendant's application for summary judgment:
4.The matter be dealt with under the General Procedure.
5.The claimant provide security for the defendant's costs in the sum of $10,000 or such other sum as this court considers appropriate by way of payment into court.
6.The claimant pay the defendant's costs of this application fixed in the sum of $1,000 or such other amount as the court considers appropriate, forthwith.
7.The matter be stayed until the claimant complies with orders 5 and 6 hereof.
The respondent's counter-application was supported by an affidavit of Mr Arndt affirmed on 24 December 2014 in which he stated on 10 December 2014 the appellant attended his offices and indicated that he was there to serve a writ and an application. Mr Arndt responded that he had no instructions to accept service of process on behalf of either of the respondents. The appellant then handed him two documents being the application dated 10 December 2014 and a supporting affidavit. Mr Arndt's affidavit annexed a copy of a document that he said the appellant left at his office. This document purported to be an originating summons from the District Court of Western Australia held at Geraldton. It was unnumbered and unsealed.
Mr Arndt said that he contacted the registry and was informed that this document had not been accepted for filing. The affidavit of Mr Arndt otherwise deals with the basis of his client's claim for costs orders.
The applications were heard on 6 January 2015. The appellant indicated that he wished to press the water damage claim as a minor claim. He acknowledged that he intended to press other claims against the respondents in the District Court (ts 33).
The learned magistrate went to some lengths to clarify what relief the appellant was seeking. In relation to the order for a 'stay of proceedings for correct jurisdiction application' [sic] the appellant conceded he was not pursuing that order (ts 43). As to the original claims against the respondents in relation to the fence, the appellant was asked whether he was discontinuing them. He said that he could, if allowed to do so (ts 46). His claim was for the water incursion from the first named respondent's land.
The respondents' submission was that the appellant's application was an abuse of process as it was intended to prevent the court from coming to a decision in relation to the matters that were heard on 9 December 2014. On that basis the respondents' sought the costs of the application (ts 56).
At no time did the appellant make clear what the purpose of his application of 10 December 2014 was. He did, however, complain that affidavits put before the court by the respondents for the purposes of the hearing on 9 December 2014 were factually wrong and that he had other evidence to support his claim for water damage.
The learned magistrate's decision
On 20 January 2015 his Honour gave reasons for the orders appealed from. His Honour outlined the relevant history of the matter. In citing the appellant's documents his Honour said that he had carefully reproduced the wording. His Honour observed that the appellant had an idiosyncratic way of expressing himself. His Honour's reason set out the pleaded positions of the parties and the terms of the various applications before him for determination.
The learned magistrate referred in his reasons for decision to the principles governing the treatment of self-represented litigants. His Honour then set out the principles relevant to the determination of an application for summary judgment as well as a number of authorities on abuse of process. In a rather unusual fashion his Honour then at page 15 set forth the orders he proposed to make with respect to the respondents' summary judgment application, the appellant's applications of 10 October, 4 December and 10 December 2014 and the respondents' application of 10 December. He then went on to give his 'explanations for the various outcomes'.
Analysis
The reason given for ordering summary judgment for the respondents on the claim described in pars 1 to 4 of the Amended Statement of Claim dated 26 August 2014 is that those paragraphs do not disclose a cause of action in negligence. It is not clear why his Honour took the approach of analysing the paragraphs by reference to negligence, particularly when the appellant had applied to discontinue a claim for breach of contract based on the same allegations. With due respect to the learned magistrate, the proper course, if the matter was to be dealt with under the general procedure, would have been either to give effect to the appellant's application to amend his claim by deleting those paragraphs. An order for summary judgment was inappropriate where an amendment was sought (and granted), the effect of which was to confine the claim to water damage. If that amendment had not been sought the paragraphs in question should simply have been struck out. They did not constitute a claim in tort or contract on which judgment could be given.
As previously noted, however, at no time did the learned magistrate make an order that the minor case procedure not apply. No reasons were given for entertaining the summary judgment application. No reference was made to r 5 and r 6A, or to s 28. As summary judgment is not available under the minor case procedure, the learned magistrate had no jurisdiction to deal with the respondents' application other than to dismiss it.
For the appellant to have a right of appeal the judgment must have been 'beyond the court's jurisdiction': s 32(3). In Wise v Proprietors of Strata Plan 21513 [2009] WADC 115 Sleight DCJ (as his Honour then was) held that these words meant jurisdictional error of the kind described by the High Court in Craig v The State of South Australia (1995) 184 CLR 163. In Craig, 176 - 177 Brennan, Deane, Toohey, Gaudron and McHugh JJ stated:
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises the jurisdiction does exist.
In Re Carey; ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501, [181], McLure JA held on the authority of Craig that the scope of jurisdictional error depends upon whether or not the decision-maker has authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with law.
In my opinion, by ordering summary judgment on part of the claim, the learned magistrate went beyond his jurisdiction. The minor case procedure did not permit that remedy and the court did not empower itself to give it by making an order that the general procedure apply. Thus the court had no jurisdiction to entertain the respondents' application. Paragraph 1 of the order must be set aside.
It is, nevertheless, clear that the appellant did not intend to proceed with that aspect of his claim. In that regard the learned magistrate misdirected himself by treating pars 1 to 4 of the Statement of Claim dated 26 August 2014 (re-produced at [4] of the reasons) as purporting to make a claim in negligence, rather than contract. In his Honour's reason at [19] there is reference to the 'the claim of alleged negligence malicious behaviour and nuisance regarding the fence' being 'struck out'. Those words do not appear in the Statement of Claim to which the respondents' application was directed and to which par 1 relates. The appellant made it clear that he did not wish to proceed with his claim as originally pleaded, defective as it was; he wanted to discontinue it and to press only his claim for water damage, which his Honour found was arguable. Leave to discontinue was granted. Directions were given in relation to the residual claim. The order for summary judgment was, therefore, not only beyond the court's jurisdiction, but pointless.
Thus, it is not so much the summary judgment, but the consequential and ancillary costs orders that the appellant has reason to disturb. I find the court below exceeded its jurisdiction in making these orders also.
Paragraph 2 of the order is set aside. Three points can be made. First, it falls away as a consequential order. Second, it is conceded by the respondents that the court below had no power to award indemnity costs: Rodwell v Hutchinson [2010] WASCA 197 [36]. Third, the costs order went beyond the jurisdiction of the court to award costs in a minor claim: no more than allowable costs may be awarded to a successful party, unless (relevantly) the unsuccessful party's claim was wholly without merit. That was not established. It is apparent, also, that the appellant did not have the opportunity to be heard as to costs, though this was not a ground of appeal.
It does not avail the respondents, having applied for indemnity costs, to argue now that the learned magistrate simply erred in the form of the order. The respondents sought an order that was beyond the court's jurisdiction. They cannot be heard to say that they in fact wanted an order for costs above scale pursuant to s 280(2) of the Legal Profession Act 2008. There was no information put before the learned magistrate to ground such an application.
Paragraph 6 is a further order for costs in respect of the respondents' summary judgment application (6 October 2014). There is nothing in the reasons to indicate that this is other than a mistake. As the order is beyond jurisdiction, the claim being a minor case, it too must be set aside.
Paragraph 8 is an order for costs in respect of the appellant's application dated 10 December 2014, heard on 6 January 2105. Paragraph 10 is the same order, but it fixes those costs at $1,000. The duplication is unexplained by the learned magistrate's reasons.
The application was for a stay of proceedings. His Honour found it was destined to fail and that it was frivolous and vexatious and an abuse of process. Undoubtedly, it was misconceived. Indeed, it was not pressed at the hearing which dealt mainly with the appellant's concerns about the respondents' summary judgment application. As previously noted, s 31 provides that costs in a minor case are limited to allowable costs, being court fees. Payment of a successful party's other costs may only be ordered in either of two situations, neither of which is established in this case. The learned magistrate did not find that because of the existence of exceptional circumstances an injustice would be done to the successful party if their other costs were not ordered to be paid. Nor did the learned magistrate find that the appellant's claim, as opposed to the application, was wholly without merit. Thus, the learned magistrate had no power to award costs in respect of the appellant's application.
The question, then is whether this is a jurisdictional error or an error of law from which no appeal lies. The High Court in Craig held at (177) that an inferior court, while acting within the general area of its jurisdiction, can fall into jurisdictional error 'by doing something which it lacks authority to do'. If it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain requirement is satisfied, there will be jurisdictional error if that requirement has not in fact been satisfied, even though the matter is the kind of matter which the court has jurisdiction to entertain: see Re Carey [181]. Applying this principle, I conclude that the making of a general order for the costs of an application in a minor case to which none of the exceptions in s 31(3) applied was beyond the court's jurisdiction. Paragraphs 8 and 10 must be set aside.
Turning to par 9, again the issue is whether an order requiring the appellant to give security for costs is beyond the court's jurisdiction. (Paragraph 11 raises the associated question of whether the court has power to order that the claim be stayed until such security is given).
The respondents' cross-application dated 24 December 2014 sought security for costs in the event that summary judgment application failed. In that event the respondents sought an order that the claim be dealt with under the general procedure and that the appellant be ordered to give security for costs.
The respondents' submissions dated 24 December 2014 at [34] were to the effect that the court should order security for costs because the appellant's case was 'inherently weak', 'there was reason to expect that the claimant will not be able to service any order for costs', 'there was reason to suspect that the claimant was bringing the action on behalf of … other proprietors of 2 Admiral Link', that he had not given particulars of the amount claimed ($9,900), and that 'the fact that the amount claimed is 99% of the maximum that can be claimed in a minor case suggests that the amount is an ambit claim and chosen with the intent of avoiding any liability for costs'. None of these grounds was addressed by the learned magistrate.
His Honour's reasons simply refer to his analysis of the appellant's unsuccessful application of 10 December 2014, and make no reference to any statutory or other power to make such an order. In that part of his reasons his Honour said:
Whilst making no comment on the allegations that the claimant has made against the defendants and their counsel, the claimant's ill-considered and rushed application along with a reckless and ill-informed approach to this litigation leads the court concludes [sic] that in addition to an order that the claimant pay for the costs incurred by the defendants in defending the application lodged by the claimant and heard on 6 January 2015 it is appropriate that there is a 'security for costs' against the claimant [sic].
The MCCP Act contains no express power to order security for costs and there is no mention of security for costs in either the Magistrates Court (Civil Procedure) Rules 2005 or the Magistrates Court (Minor Cases Procedure) Rules 2005. There is a general power conferred on all courts by s 1335 of the Corporations Act 2001 (Cth) to order that a corporation give security for costs where there is reason to believe that the corporation will not be able to pay costs if it is unsuccessful. Obviously, that provision has no application.
At first instance the respondents conceded that there was no express statutory power to make such an order, but suggested that such a power was implicitly conferred by a number of general procedure provisions of the MCCP Act.
Section 16(1) empowers the court to do certain things 'for the purpose of controlling and managing cases and trials'. The respondents rely on s 16(1)(o)(iii) and (iv):
(iii)to attend before the Court before trial to deal with case management, interlocutory and pre‑trial issues;
(iv)to do anything that in the Court's opinion will or may facilitate the case being conducted and concluded efficiently, economically and expeditiously;
In my view, neither of those subparagraphs suggests, let alone implies, that the Magistrates Court has power to order security for costs in a minor case. Section 16 is a general procedural provision. It is not part of the minor case procedure of the court. In any event no authority has been cited and no cogent argument made which would support the proposition that subparagraphs (iii) and (iv) of s 16(1)(o) imply a power to order security for costs and a stay of proceedings if the order is not complied with.
The respondents also argue that an implied power is to be found in s 16(1)(t) and s 48(2)(p).
Section 16(1)(t) gives the court power to 'take any action or make any other order for the purpose of complying with s 13'. Section 13 provides that the court must ensure that the matter is dealt with justly by ensuring that they are dealt with efficiently, economically, and expeditiously, that the parties are on an even footing and that the court's resources are used as efficiently as possible.
The author of Civil Procedure Western Australia Magistrates Court (LexisNexis) suggests at [1910.25], to the contrary, that there is a power independent of the Corporations Act, conferred by s 16.
Section 48(2)(p) provides that the rules of court 'may require a party to provide security for costs that may be payable by that party. In fact, no such rules of court have been made.
On one view, as there is no statutory power to order security for costs other than the Corporations Act, and as the Magistrates Court has no inherent jurisdiction, any rules of court requiring a party to provide security for costs would be limited to those cases to which that act applied.
However, to the extent that s 16(2)(t) may be construed as empowering the court to make any order for the purpose of giving effect to s 13 (a proposition about which I reserve some doubt), it is at least arguable that a general power to require a party to provide security for costs exists as a matter of general procedure.
Yet, the making of a security for costs order is not consonant with the object of the minor case procedure as prescribed by pt 4 of the MCCP Act and the Magistrates Court (Minor Case Procedure) Rules 2005. Accordingly, if the court below did have jurisdiction to order security for costs as part of its general procedure, it would not have power to do so in a minor case, in my opinion, unless it first ordered that the general procedure apply. (This in fact was what the respondents sought as a pre‑requisite to the order for security for costs).
Accordingly, for the reasons I gave above with reference to Craig, I conclude that the learned magistrate's order requiring the appellant to give security for costs in a minor case was beyond the court's jurisdiction. I would add, incidentally (as the appellant has no right of appeal from an error of law), that the reasons given by the learned magistrate do not reveal any consideration of the relevant principles: see Civil Procedure Western Australia (LexisNexis) [25.0.1] – [25.3.9], Civil Procedure Western Australia Magistrates Court (LexisNexis) [1910.25] – [1910.28]. Security for costs is not to be ordered for the purpose of punishing a litigant: Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176, [27], [39]. Paragraph 11 of the order (stay of proceedings) falls away as a consequence.
Bias
I have dealt with the appeal on the basis of jurisdictional error. The appellant also argued grounds of bias. I have been unable to discern any evidence of actual or apprehended bias on the part of the learned magistrate and have been at a loss to understand what the appellant's contentions are in this respect.
The analysis offered by the respondent's counsel points out that there are many references to bias in the appellant's submissions which do no more than express the appellant's dissatisfaction with the outcome. Three specific exceptions are suggested. These are referred to by the appellant as 'name-calling', 'coaching' and 'invested interest' [sic]. I could find no basis for any of these imputations.
The 'name-calling', if that expression be intended to describe the learned magistrate's observation of the appellant's idiosyncratic style of expressing himself, amounts to nothing. 'Idiosyncratic' is a polite and apposite description.
'Coaching', if it refers to the learned magistrate suggesting to the respondents that they take legal advice (26 February 2013), is not an appropriate term to describe the learned magistrate's suggestion, and does not in my view disclose any bias or give rise to any apprehension of bias. It merely reflects the magistrate's recognition of the obvious difficulty to the respondents occasioned by the appellant's unwieldy claim which, on any view, was virtually incomprehensible.
I can find no cogent basis for the suggestion, if that is what the appellant intended, that the learned magistrate had any vested interest in the outcome of these proceedings.
Conclusion
The appeal should be allowed on the grounds that the parts of the order by which the appellant is aggrieved were beyond the jurisdiction of the court, the claim being a minor case. Paragraphs 1, 2, 8, 9, 10 and 11 of the order made on 20 January 2015 are set aside. This leaves certain procedural orders in place by which the residual claim for water damage can proceed.
In relation to that claim it is clear that the second-named respondent Barbara Armstrong cannot be liable as it is common cause that she is not the owner of 4 Admiral Link. Pursuant to s 43(7)(d) of the MCCP Act. I would direct the Magistrates Court to dismiss the appellant's claim against her.
The respondents have incurred a large amount of legal costs. These have been deposed to on affidavit by their solicitor. That is a regrettable fact as the intention of the legislation by which the minor case procedure for small claims was established was to avoid that very result.
The case is remitted to the Magistrates Court at Geraldton to be dealt with by a different magistrate in accordance with the minor case procedure. Needless to say, it is in the interests of the parties and the administration of justice that this matter be brought a conclusion as soon as possible. The object of the minor case procedure should be pursued. The matter should be dealt with informally with a view to bringing about a settlement acceptable to the parties. If that is not possible, it should be determined on its merits.
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