Lawrence v Cooperative Bulk Handling Pty Ltd - [2023] WADC 138

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LAWRENCE -v- COOPERATIVE BULK HANDLING PTY LTD [2023] WADC 138
CORAM:   GETHING DCJ
HEARD:   19 OCTOBER 2023
DELIVERED          :   20 NOVEMBER 2023
FILE NO/S:   APP 21 of 2023
BETWEEN:   FRANCIS JOHN LAWRENCE
Appellant
AND
COOPERATIVE BULK HANDLING PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE OWEN-CONWAY
File Number            :   PER/GCLM/16268/2017

Catchwords:

Appeal - Refusal to adjourn a trial on medical grounds - Whether sufficient procedural fairness was afforded - Whether there was an error in the exercise of the discretion

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 13

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr G A Flynn

Solicitors:

Appellant	:	Not applicable
Respondent	:	Hotchkin Hanly

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Avsar v Binning [2009] WASCA 219
Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Bloch v Bloch (1981) 180 CLR 390
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Defendi v Szigligeti [2019] WASCA 115
Frigger v Holbrook [2015] WASC 469
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
House v The King (1936) 55 CLR 499
Jones v Darkan Hotel [2014] WASCA 133
Lawrence v Cooperative Bulk Handling [2017] WASC 24
Lawrence v Cooperative Bulk Handling [2017] WASC 24 (S)
Lee v The State of Western Australia [2023] WASC 182
Magjarraj v Asteron Life Ltd [2009] NSWSC 1433
Marks v Coles Supermarkets [2021] WASCA 176
Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44
Mineralology Pty Ltd v Sino Iron Pty Ltd [2021] WASCA 53
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL (No 3) [2012] WASCA 145
Mueller v PSAL Pty Ltd [2015] WASCA 48
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
Nugawela v Australian Health Practitioner Agency [2023] WASCA 37
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550
Saunders v The Public Trustee [2015] WASCA 203
Sethi v Bhavsar [2020] WASCA 52
Smart v Power [2019] WASCA 106
Smart v Prisoner Review Board (WA) [2012] WASC 48
Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204
Thorp v Hudson [No 2] [2022] WASCA 76
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Williams v Sadeghpour [2021] WADC 111
Woodley v Woodley [2018] WASCA 149
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

GETHING DCJ:

Introduction

The present appeal between the appellant, Mr Lawrence and the respondent, Cooperative Bulk Handling Limited (CBH) arises out of an agreement entered into in September 2012 between them by which Mr Lawrence purchased an on‑site caravan at a caravan park operated by CBH in Rockingham.
The appeal concerns a general procedure claim lodged by Mr Lawrence in the Magistrates Court in November 2017 (Claim). It is for losses which Mr Lawrence claims he has sustained as a result of CBH selling his caravan and personal belongings. The Magistrates Court file is before this court by way of an electronic matter book.[1]
[1] The pages of which I will refer to as 'MB##'.
The Claim was listed for trial before Magistrate Owen‑Conway (the Magistrate) to commence on 2 May 2023. This was the fourth listing date allocated to the trial of the Claim.
Mr Lawrence did not appear in court on 2 May 2023. He says he was absent from court due to illness, for which two medical certificates were provided to the court. CBH appeared by its lawyer. The Magistrate refused to adjourn the trial (Decision), giving detailed reasons, the transcript of which is before the court. The Magistrate then proceeded to dismiss the Claim.
By notice of appeal filed 22 May 2023, Mr Lawrence appealed the Decision.
For the reasons which follow, Mr Lawrence has not satisfied the onus on him to show that the Decision was made in error and should be set aside.

Factual background

As the Magistrate did,[2] it is important to place the Claim in the context of prior proceedings before the State Administrative Tribunal (SAT). In February 2016, CBH applied to the SAT for an order terminating its tenancy agreement with Mr Lawrence and his wife, and requiring them to give vacant possession of the site. The SAT made the order sought. Mr Lawrence and his wife appealed to the Supreme Court, which was dismissed.[3] Mr Lawrence and his wife were ordered to pay CBH's costs.[4] The Magistrate was informed by counsel for CBH that these costs have never been paid.[5]
[2] MB 775.
[3] See generally: Lawrence v Cooperative Bulk Handling [2017] WASC 24 (Lawrence).
[4] Lawrence v Cooperative Bulk Handling [2017] WASC 24 (S) [31] (Corboy J).
[5] MB 775.
The substantive dispute between Mr Lawrence and CBH is sufficiently summarised in the description of his claim which he provided in the General Procedure Claim by which the Claim was commenced:[6]
The Claimant entered into a Residential Park Agreement with the Defendant in relation to the Cee and See Caravan Park which it operates. The Claimant purchased an on-site caravan located at Bay 44, Cee and See Caravan Park which is located at 2 Governor Roach, Rockingham on the 12^th of September 2012 for $45,000.
The Claimant leased these premises from the Defendant until 31^st January 2016 during which time the Claimant expended a further $25,000 in improvements to the caravan. At this point the Claimant was offered no further extension of his lease and the lease terminated by the Defendant.
Between the 31^st of January 2016 and February 2017, the Claimant attempted via legal means to renew his lease which was unsuccessful.
The Claimant requested that he be permitted to sell his caravan in accordance with Section 55 of the Residential Parks (Long‑Stay Tenants) Act 2006. The Defendant on the other hand declared the Claimants caravan as 'Uncollected Goods' and that he intended to sell the caravan by public Auction.
The Claimant reclaimed his goods in accordance with the Act. The Defendant then took out a Minor Case claim (8924/2017) seeking orders that he be permitted to sell his caravan in accordance with the Residential Parks (Long-Stay Tenants) Act 2006. During the pre-trial conference it was discovered that the Defendant had sold the claimants caravan and all his personal belonging (valued at $5,000) for about $300 by public Auction. The minor case claim was subsequently discontinued, and this General Procedure Claim made.
[6] MB 742.
The Magistrates Court file for the Claim is before this court, including the transcript of the hearing on 2 May 2023.[7] It is sufficient to refer to the aspects of the procedural history outlined by the Magistrate in the Decision:[8]
[7] MB 744 - MB 783.
[8] MB 775 - MB 777.
On 13 November 2017 the claimant lodged the claim for loss and damage for wrongful sale of a caravan located on the residential park lot, subject of the prior fixed-term lease which was terminated. On 5 May 2020 the Magistrates Court issued a notice that the case is an inactive case.
On 12 June 2020 the claimant lodged a form 23 application for an order that the claim be ordered to be no longer considered inactive, supported by a form 2 affidavit.
On 20 July 2020 this court, Magistrate Ward … dismissed the claimant's form 23 application lodged 12 June 2020 and ordered the claimant pay the defendant's costs, as fixed. The claimant then appealed that decision to the District Court. And on 18 August 2021 the court ordered that the Magistrates Court order of 20 July 2020 be set aside. That the claimant's claim no longer be declared inactive.
On 29 November 2021 the matter came before me at a status conference and I made directions to facilitate the hearing and trial of the matter on the evidence and listed the matter for a trial on 8 and 9 March 2022. On 2 March 2022 the claimant emailed the court requesting an order vacating the trial dates on 8 and 9 March and adjourning the trial to another date. In support was a medical certificate establishing that the claimant requires significant surgery during the COVID period, rendering him unable to attend the trial, then listed on 8 and 9 March.
On 3 March a form 49 memorandum of consent orders was lodged in the court, which comprised consent orders that the trial dates be vacated and the defendant be entitled to the costs of the vacation, in any event. On 4 March those orders were made pursuant to that form 49. On 8 March 2022 a form 45, notification of trial, was issued by the court to the parties, identifying that the matter had been listed for trial on 9 and 10 August 2022.
The listed dates were vacated by the court, on account of the trial fees not having been paid as required. On 20 June 2022 I made orders listing the matter for trial on 1 and 2 November 2022. The claimant was informed that he must apply to the Registrar to relieve him of any obligation to again pay the trial fees, on account of his submission that the only reason the previous trial dates were vacated was because of his need for surgery.
On 20 June 2022 a form 45 notice of trial again issued, identifying that the parties were informed that the trial date was listed on 1 and 2 November. On 6 July 2022 the court wrote to the claimant, informing him that those dates were vacated because of non-payment of trial fees.
On 29 August 2022 I ordered that the matter be re-listed for trial on 1 and 2 November 2022, provided that the claimant pay the trial fees within seven days.
As an aside, and it was discussed at that proceeding, the claimant was again informed that he must make application to the registry for relief from having to pay the trial fees again, on account of the first adjournment being necessitated by matters beyond his control. On 24 October and 20 October the court received information from Mr [Bayens], on behalf of the claimant, and medical documentation, informing the court that he wished to vacate the trial dates on 1 and 2 November 2022, on account of the fact that the claimant had had heart or coronary surgery and whilst in hospital had suffered with COVID‑19.
On 27 October 2022 I made an order again vacating the trial listed on 1 and 2 November 2022 and adjourned the trial to a date to be fixed. On 17 November 2022 the notice of trial for the trial dates on 2 and 3 May 2023 were sent to the parties.
On 28 April 2023, a Con Bayens, on behalf of Mr Lawrence, sent a letter to the Magistrates Court and CBH's lawyers, attaching a letter from the Law Society dealing with possible pro bono representation. The letter foreshadowed that Mr Lawrence would be requesting a further adjournment for the purpose of obtaining legal representation.[9] I am told in CBH's submissions that its lawyers advised Mr Lawrence by email on Saturday 29 April 2023 that it would oppose the application.
[9] MB 34 - MB 35.
On Monday 1 May 2023, Mr Bayens, on behalf of Mr Lawrence, sent a further email to the Magistrates Court and CBH's lawyers attaching two medical certificates, and requesting the trial be adjourned due to an apparent health emergency suffered by Mr Lawrence.[10] The two medical certificates were attached to the submissions filed by Mr Lawrence in the Appeal. Both are from the Peel Health Campus.
[10] MB 33.
The first is dated 30 April 2023. It is to the effect that at 9.49 am on 30 April 2023, Mr Lawrence attended the Emergency Department at Peel Health Campus. He was suffering from 'an acute medical illness'. He was certified to be unsuitable for 'strenuous work/engagements' from 30 April 2023 to 2 April 2023, though the Magistrate accepted this was an error and treated it as a reference to 2 May 2023.[11]
[11] MB 774.
The second is dated 1 May 2023. It is to the effect that at 7.02 am on 1 May 2023, Mr Lawrence attended the Emergency Department at Peel Health Campus. He was suffering from being 'unwell'. He was certified to be unsuitable for 'work' from 1 May 2023 to 3 May 2023.

The hearing on 2 May 2023

The Magistrate commenced the hearing on 2 May 2023 by placing on the record that the court had received the two medical certificates which I have just referred to, as well as the letter from Mr Bayens. Her Honour treated the material before the court on behalf of Mr Lawrence as an application to adjourn the trial and vacate the trial dates. This was notwithstanding the fact that there was no application in the proper form, the court giving Mr Lawrence some leniency as to procedural compliance on the ground that he was a litigant in person.[12]
[12] MB 773 - MB 774.
The Magistrate viewed the application to adjourn as having two bases. The first was to allow Mr Lawrence to obtain legal advice. The second was his ill health.[13]
[13] MB 773 - MB 781.
At the outset of the hearing, the Magistrate expressed the view that she was inclined to grant the adjournment 'as the matter has to be heard and determined in some way'.[14] Counsel for CBH said that his client opposed the adjournment, and made detailed submissions.
[14] MB 746.
The Magistrate sought to contact Mr Lawrence by telephone using the contact details which he had provided to the court, making three attempts. However, on each occasion, the call rang several times before going through to a voice mail, with Mr Lawrence identifying himself in the automatic greeting.[15]
[15] MB 775.
In the course of the hearing, the Magistrate was able to telephone Mr Bayens. The conversation is recorded in the transcript of the hearing. Her Honour informed Mr Bayens of the purpose of the call and of CBH's opposition to the application. Mr Bayens confirmed that he was assisting Mr Lawrence. He informed the court that Mr Lawrence was 'in and out of hospital', was 'actually was quite bad', that he required stiches in his head, and was complaining of headaches.[16]
[16] MB 762.
The Magistrate adjourned the hearing to consider the issues, later returning to provide detailed oral reasons.
The Magistrate set out the procedural history which I have quoted at [9].
Her Honour set out the principles relating to procedural fairness and concluded that Mr Lawrence had been given a 'more than reasonable' opportunity to present his case:[17]
It is, without doubt, fundamental to the administration of justice that persons are given the full opportunity to present their case. The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case. The court is not required to ensure that the opportunity is taken full advantage of. The opportunity must be a reasonable opportunity and it must be afforded by the court.
In my judgment the number of status conferences and the number of adjournments and the facilitation of the lodging of documents to assist the claimant in producing to the court his case has been more than reasonable. And I note that he has lodged seven witness statements in support of his case. In my judgment the court process that has been adopted in this matter, from beginning to end, has afforded the claimant the greatest opportunity to press on with his case and have it heard. He has, however, substantially delayed in effecting the hearing.
[17] MB 777.
The Magistrate observed that the decision to grant or refuse an adjournment is a discretionary one.[18]
[18] MB 777.
As to the issue of representation, the Magistrate noted that at times Mr Lawrence had acted for himself in the Claim. Her Honour noted that at the hearings before Magistrate Ward and Wallace DCJ (in 2020 and 2021) Mr Lawrence said that 'he fully intended and was close to obtaining legal representation at the hearing of the claim'. However, there was no evidence that he had made an approach to Law Access or anyone else seeking to obtain pro bono legal assistance in a timely fashion. Rather, the materials before the court suggested that the application to Law Access was made very late. Her Honour also observed that, on the materials, there was no certain prospect of legal representation at a future trial. Accordingly, the application to adjourn based on a desire to obtain legal representation was dismissed.[19]
[19] MB 778 - 779.
In exercising the discretion based on illness, the Magistrate considered four factors.
The first was Mr Lawrence's medical condition. The Magistrate determined that the medical information was not of sufficient weight to establish that he was unable to attend at the trial. Specifically:[20]
I also note that the claimant was not admitted to hospital from his attendances at the Emergency Department at the Peel Health Campus. There is no evidence before me of what his acute medical illness is. It could be a cold. It could be anything. There is no evidence of any form of treatment. There is no suggestion that either doctor he consulted in the Emergency Department had been informed that the claimant required a medical report to persuade a court that the matter should be adjourned because of the claimant's health.
There is nothing in the medical reports or any other documents - the medical certificates or any other documents … that suggest to me that the claimant did anything more than obtained a perfunctory medical certificate that acknowledged that he had been to the Emergency Department and that he felt unwell and that he had not been treated. As I've said, the best that can be said is that he was examined. He attended. He was examined. He had been considered unwell during the trial days, a totality of four days. April 30, which is the day he presented, to the 3rd, tomorrow.
Mr [Bayens] said that he believed the claimant had stitches to his head and his sister was looking after him. There is no medical evidence of any such treatment or a head injury. The medical certificates do no more than state that the claimant presented is unwell or was unwell. He has been released and a conclusionary statement that he should avoid or is not suitable for strenuous work or engagements. That is not to say that he was not capable of marshalling his witnesses, which he should have been able to do so well before 30 April, knowing that the matter was proceeding to trial. And present those people to give evidence in terms of their statement and those individuals be cross‑examined, including himself.
[20] MB 780.
Her Honour then referred to the decisions in Magjarraj v Asteron Life Limited,[21] Frigger v Holbrook[22] and Thorp v Hudson [No 2],[23] the latter of which 'concerned a perfunctory medical certificate in support of at least a proper application for the vacation of an appeal'.[24] I refer to these authorities below.
[21] Magjarraj v Asteron Life Ltd [2009] NSWSC 1433.
[22] Frigger v Holbrook [2015] WASC 469 (Frigger).
[23] Thorp v Hudson [No 2] [2022] WASCA 76 (judgment of the court) (Thorp).
[24] MB 780 - 781.
Her Honour concluded:[25]
The information in those medical certificate does not amount to admissible evidence that there is a justifiable reason for the adjournment. I agree that what is produced is wholly insufficient and there has been no effort, in particular, today, for any person to present physically or even be available by telephone to lend weight to those statements, so to speak.
[25] MB 781.
The second was the merits of the Claim. The Magistrate referred to the decision in Lawrence and accepted that Mr Lawrence was most aggrieved that his lease of the parkland was terminated and he was not provided with a new lease. Her Honour observed that CBH provided well-made objections to Mr Lawrence's witness statements, and that only three paragraphs of his statement were relevant to the Claim. Those paragraphs were:[26]
On the 9^th of June 2016, I filed and served my Supreme Court Appeal with the Defendant
On the 17^th of June 2016, I returned to my caravan to find it all roped off and a notice on the caravan which said that the property had been declared abandoned and 'No Entry' was permitted without express permission of Park Management., [sic] despite the fact I had paid the rent up until the 25^th of June 2016. This was strange as we were still residing in the caravan.
PRODUCE PHOTOS OF CARAVAN AND NOTICE.
The following week I received a notice from CBH advising that my caravan had been classed as abandoned.
Her Honour said that all other aspects of his statement deal with matters that could have been or may have been canvassed before the SAT in the earlier matters.[27]
[26] MB 587, 779.
[27] MB 779 - MB 780.

The third factor was the public interest, referring to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University:[28]
I too infer from the procedural history that I have referred to above that the conduct of the applicant has all too quickly resulted, and repeatedly resulted, in a delay and obfuscation of this matter going to trial, which is the very thing that he has consistently told this court that he wanted to have.
As the High Court has held in Aon, the application for an adjournment must be made on the ordinary principles. On there being evidence of the basis of the reason or the explanation for the need of the adjournment and the balancing of the detriment and the interests between the parties. And also now, in the 21st century, considering what have now become statutory principles referred to in section 13. That is, the economic, the judicial and administrative resources of the court, and the lack of regard to the community as a whole, who have now lost, on this occasion, since the first one, six hearing days, in an attempt to have this matter be brought to trial.
[28] MB 781; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
The fourth factor was the prejudice to CBH. In this regard, the Magistrate found that any order for Mr Lawrence to pay CBH's costs thrown away by the adjournment would be 'illusory'.[29]
[29] MB 781.
Her Honour concluded by dismissing the applications, though making procedural orders to ensure that the applications were formally before the court:[30]
I see no reason why this matter should not have proceeded today and I don't think that the claimant has produced anywhere near enough evidence to establish that there is a valid reason for the trial dates to be vacated.
So I dismiss the applications. I make the usual orders that both documents are treated and dealt with as if they were form 23 applications. Service is dispensed with and that they were listed for hearing concurrently with the trial.
[30] MB 781.
The Magistrate then called the Claim on for hearing and there being no evidence led by Mr Lawrence in support of his case, dismissed the Claim.[31]
[31] MB 783.

Appeal

By Appeal Notice filed 22 May 2023 Mr Lawrence appealed the Decision. The Appeal Notice was filed within the requisite 21 days of the decision.[32]
[32] Magistrates Court (Civil Proceedings) Act 2004 s 40(3) (MCCPA).
On 25 May 2023, CBH filed a Notice of Respondent's Intention to the effect that it would seek to argue that the decision should be upheld on the grounds relied on by the Magistrate.
On 29 August 2023, Mr Lawrence was granted leave to amend the Appeal Notice in terms of grounds 1, 2, 3 and 4 of an application he had filed dated 18 July 2023. These grounds of appeal were:
Ground 1
The learnt Magistrate erred in finding the Medical Certificates I had provided to the Court were perfunctory.
Ground 2
The learnt Magistrate erred and denied the Appellant procedural fairness by deciding and dismissing a General Procedure Claim without hearing or seeking submissions from the Appellant who was absent from Court due to illness.
Ground 3
The learnt Magistrate erred in applying an incorrect and unfair legal test when the Appellant was absent and disadvantaged and unable to respond.
Ground 4
The learnt Magistrate erred in applying an incorrect legal test in finding that the Appellant was not disadvantage by way of illness and was denied natural justice.
Mr Lawrence filed submissions dated 29 September 2023. CBH filed submissions on 11 October 2023.
Mr Lawrence's submissions had four annexures. Annexure 1 is the medical certificate dated 30 April 2023 from Peel Health Campus (which I quote from at [12]). Annexure 2 is some records from the Peel Health Campus of his attendance on 30 April 2023. Annexure 3 is the medical certificate dated 1 May 2023 from the Peel Health Campus (which I quote from at [13]). Annexure 4 is a cardiology report of tests done on 8 May 2023. Annexures 2 and 4 were not before the Magistrate.
At the hearing before me on 18 October 2023, Mr Lawrence made an oral application for leave to adduce Annexures 2 and 4 (Further Evidence). The starting point is that the District Court must decide the Appeal on the material and evidence that was before the Magistrate.[33] However, the court can give leave to admit other evidence, but only in exceptional circumstances.[34] In order to allow Mr Lawrence to present his case at its strongest, I granted leave on condition that by 26 October 2023 he file and serve an affidavit annexing that evidence. In particular, the Further Evidence is relevant to the issue of the consequences of any failure to afford procedural fairness. Mr Lawrence complied with the condition I imposed by filing an affidavit sworn 25 October 2023.
[33] MCCPA s 40(4)(a).
[34] MCCPA s 40(4)(b), s 40(5).
As mentioned, the Magistrates Court file was before the District Court in the form of an electronic matter book. At a directions hearing on 29 August 2023 a registrar made an order giving both parties leave to copy and inspect the lower court file. At the hearing before me on 18 October 2023 I was concerned as to whether the parties, in particular Mr Lawrence, had received a sufficient practical opportunity to do so. Accordingly, I provided each party with a USB thumb drive containing the electronic matter book, and gave them both a short opportunity to file further written submissions. CBH filed some further short submissions.
The Appeal is by way of a 'reconsideration of the evidence' that was before the Magistrate, subject to any further evidence being admitted.[35] The court does not hear afresh all of the evidence.[36] Rather, the appeal is to be undertaken by way of a rehearing.[37]
[35] District Court Rules 2005 (WA) (DCR) r 50(1).
[36] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).
[37] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied).
The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene.[38] In an appeal by way of rehearing, ordinarily, and absent further evidence or a relevant change in the law, the court can exercise its appellate powers only if satisfied that there was an error on the part of the primary court; the power is to be exercised for correction of error.[39] There must be a material error of law, fact, discretion or other miscarriage of justice.[40] In doing so, the appeal court must conduct a 'real review' of the evidence given at first instance and of the primary decision maker's reasons for decision to determine whether there has been an appellable error.[41]
[38] Nugawela v Australian Health Practitioner Agency [2023] WASCA 37 [11] (judgment of the court); Avsar v Binning [2009] WASCA 219 [37] (Owen JA, with whom Miller & Newnes JJA agreed).
[39] Coal and Allied [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ) (Allesch); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, with whom Buss JA & Beech J agreed).
[40] Allesch [23]; Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks); Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd[2021] WASCA 130 [460] (judgment of the court).
[41] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550 [43] (judgment of the court); Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [47] (Kiefel CJ & Bell J); Marks [127]; Smart [101].
The onus is on Mr Lawrence as the appellant to demonstrate the existence of an appellable error.[42] It is not sufficient for him to satisfy the court that a decision other than that made by the Magistrate was correct and preferable.[43]
[42] Smart [100]; Jones v Darkan Hotel[2014] WASCA 133 [31] (judgment of the court).
[43] Marks [124].
In dealing with the appeal, I am conscious that Mr Lawrence is a litigant in person. As a litigant in person, Mr Lawrence is entitled to some leniency in relation to compliance with the court rules.[44] The court is required to approach the documents in which he articulates his appeal with some flexibility.[45] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his appeal, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[46] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[47]
[44] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[45] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[46] Sethi v Bhavsar [2020] WASCA 52 [27] (Reasons of the Court) (Sethi).
[47] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].
At the same time, the court needs to ensure that any latitude given to Mr Lawrence as a litigant in person does not deprive CBH of its right to procedural fairness and a fair hearing.[48] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[49]
[48] Nobarani v Mariconte [2018] HCA 36[47] (judgment of the court); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[49] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] - [75] (judgment of the court).
With these principles in mind, I will treat the grounds of appeal as in substance asserting two errors of law. The first, in grounds 2 and 4, is that the Magistrate denied Mr Lawrence procedural fairness.[50]
[50] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 - 367 (Deane J); Defendi v Szigligeti [2019] WASCA 115 [44] - [54] (judgment of the court) (Defendi).
Not every departure from the rules of procedural fairness will entitle the aggrieved party to an order for a retrial. Such an order will be made only if the error deprived the party of the possibility of a successful outcome.[51] It is in this context the Further Evidence becomes relevant to the determination of the appeal. The specific issue is whether, had Mr Lawrence, in the course of an opportunity to make submissions, adduced the Further Evidence, there was a possibility it would have made any difference to the outcome of the Decision.
[51] Defendi [59].
The second broad error of law, which is asserted in grounds 1, 3 and 4, is that the Magistrate made an error in coming to the Decision. The decision as to whether or not to adjourn a hearing involves the exercise of a discretion.[52] Accordingly, the appeal is to be determined according to the principles in House v The King.[53] It is instructive to deal with this issue before considering whether any departure from the rules of procedural fairness deprived Mr Lawrence of the possibility of a successful outcome.
[52] Sethi [36]; Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204 [30] (Reasons of the Court) (Snook).
[53] House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ) (House); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) [38] (Kiefel CJ); Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [184] ‑ [185], [204], [241] (judgment of the court) ; Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44 [54] ‑ [56] (judgment of the court). As to the when a decision will be discretionary, see generally: SZVFW [35] - [50].
In summary, three issues arise for determination:
•Did the Magistrate deny Mr Lawrence procedural fairness?
•Did the Magistrate make an error in exercising the discretion not to adjourn the trial?
•If the Magistrate denied Mr Lawrence procedural fairness, did this deprive him of the possibility of a successful outcome?

Mr Lawrence's submissions

Mr Lawrence points out in his submissions that the initial delays in the prosecution of the Claim were caused by matters outside his control, including the impact of COVID‑19 on the courts. He reiterates the chronology which I have set out at [9].
In his submissions, Mr Lawrence goes into detail about his medical condition between 30 April 2022 and 2 May 2022. However, as this is evidence which was not the subject of an application for leave, I put this to one side and do not consider it. Likewise, I do not consider his commentary on the certificates, for example, that the doctors did not know what caused him to collapse. Substantively, all the information which the Magistrate had were the two medical certificates which I have set out at [12] and [13].
In ground 1, Mr Lawrence asserts that the Magistrate erred in finding that the medical certificates were 'perfunctory'. He focusses on the words of the medical certificates. He submits:
Therefore, the Applicant was deemed unsuitable for 'Strenuous work/engagements [sic].
By the Collins dictionary, 'Strenuous work' is described as 'a strenuous activity or action involving a lot of energy or effort'. 'Engagement' is described in the same dictionary as 'an arrangement to meet or be present at a specified time and place'.
Therefore, the Applicant would submit that had the Medical Certificates been interpreted in the manner they should be, namely the Applicant had been certified by a Doctor that he was unable to meet an arrangement at a specified time and place or to engage in an activity that involved energy or effort, and were not perfunctory [sic]
In respect to the second Medical Certificate 'work' according to the Oxford Dictionary means 'an activity involving mental or physical effort done in order to achieve a purpose or result' [sic]
Unwell is described as 'Not well; ailing; ill; sick'.
Consequently, the Applicant would submit that the 2^nd Medical Certificates been interpreted in the same manner, namely a Doctor had certified that the Applicant should not engage in an activity involving mental and physical effort and is not well.
The Applicant respectfully submits that the foregoing establishes that the Medical Certificates supplied to the Court were in the circumstances more than sufficient to certify the Applicant was suffering a condition that precluded him from attending Court on the Hearing date and were not perfunctory.
In ground 2, Mr Lawrence asserts that the Magistrate denied him procedural fairness by deciding and dismissing the claim without hearing or seeking submissions from him. He refers to the initial observations of the Magistrate which were that she was 'inclining to grant the adjournment [as] this matter has to be heard and determined in some way'. Mr Lawrence's submissions are critical of the submissions made by counsel for CBH. In particular he says that, while the trial dates were vacated on three previous occasions, these were all matters that were completely outside his control. Moreover, he had given the court ample warning so to not inconvenience the court and witnesses.
In ground 3, Mr Lawrence asserts that the Magistrate erred in applying an incorrect and unfair legal test when he was absent, disadvantaged and unable to response. He asserts, in effect, that the Magistrate should have taken the medical certificates at face value and relied on them. He reiterates that the prior trials were vacated for reasons outside his control. Accordingly, it cannot be said that he has been afforded 'the greatest opportunity to press on with his case and have it heard', to quote the Magistrate.
In ground 4, Mr Lawrence assert that the Magistrate erred in applying an incorrect legal test in finding that he was not disadvantaged by way of illness and was denied natural justice. He refers to the MCCPA s 13, and says that the Magistrate did not comply with the principles which it sets out. This section provides:
13.Court's duties in dealing with cases and making rules
(1)In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring -
(a)that cases are dealt with efficiently, economically and expeditiously; and
(b)so far as is practicable, that the parties are on an equal footing; and
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
Mr Lawrence refers to case law to the effect that the court should not grant an adjournment where this would result in serious injustice to one party. He says that the value of the claim, some $75,000, represents virtually all his life savings.

CBH's submissions

CBH submits that the Magistrate did not deny Mr Lawrence procedural fairness. It says that the contention in ground 2, that to ensure that any decision is procedurally fair both parties must be present, is unsupported by authority and misplaced. If accepted, this proposition would require the court to adjourn a matter, to vacate trial dates, every time a person is personally absent from the hearing, irrespective of the evidence before the court.
CBH further submits that, whilst the court was required to afford procedural fairness to Mr Lawrence, this did not require the Magistrates Court in every case to provide all parties with the opportunity to be heard orally. Rather, it was sufficient that there was a reasonable opportunity to be heard. In this case, the Magistrate was prepared to accept the emailed certificates as being an application to adjourn and vacate even if unsupported by affidavit, and gave due consideration to the merits of Mr Lawrence's application based on the materials before the court. All required procedural fairness was afforded to Mr Lawrence.
CBH placed weight on the fact that Magistrate did try and contact Mr Lawrence and was able to speak to Mr Bayens.
CBH drew the court's attention to the observation of Lundberg J in Lee v The State of Western Australia that:[54]
An adjournment request is not a process by which a litigant, and certainly not a legal practitioner, places the onus on the court to probe in order to seek further information in support of the litigant's own application.
[54] Lee v The State of Western Australia [2023] WASC 182 [28] (Lundberg J) (Lee).
I add to this a further observation by Lundberg J that:[55]
Adjournments are not simply available for the asking, whether in civil or criminal proceedings. The orderly disposal of the work of the court is undermined when hearings are adjourned unnecessarily …
[55] Lee [20].
CBH's position is that the Magistrate did not err in finding that the medical certificates supplied to the court were 'perfunctory'. The medical certificates did nothing more than acknowledge that Mr Lawrence had presented himself to the emergency department, he had felt unwell, he was examined, and was discharged. They did not address the issues of whether the medical condition would prevent Mr Lawrence from travelling to the court and participating effectively in a court hearing, and, if so, why. Rather, the Magistrate rightly formed a view in the circumstances before her that the medical certificates were an inadequate basis for granting an adjournment and vacating the trial.
CBH also submitted that the Magistrate correctly decided that Mr Lawrence had been afforded a reasonable opportunity to prepare and present his case. CBH pointed out the factors which the Magistrate had considered, as follows:
(a)the number of status conferences and adjournments, and the facilitation of lodging of documents to assist Mr Lawrence in making his case had been more than reasonable;
(b)the court process that had been adopted from beginning to end had afforded Mr Lawrence the greatest opportunity to press on with his case and have it heard;
(c)Mr Lawrence had lodged seven witness statements in support of his case, which her Honour had perused, and considered it 'quite clear' CBH's objections were well made;
(d)the vast majority of Mr Lawrence's evidence was irrelevant, dealing with matters that had been, or could have been, canvassed before in previous proceedings; and
(e)Mr Lawrence had made no efforts to marshal his witnesses in the lead up to the trial, which he was required to do well before 30 April 2023.

CBH identified nine factors which the Magistrate considered when deciding to refuse to grant the adjournment:[56]
[56] References omitted.
(a)Mr Lawrence's advanced age and health;
(b)the substantial length of time the proceedings had been on foot;
(c)the number of indulgences granted to Mr Lawrence to assist him in preparing his case;
(d)the fact that it was litigation Mr Lawrence chose to pursue, and it was up to him whether he wished to prosecute it;
(e)Mr Lawrence's repeated assertions that he intended to and was close to obtaining legal representation in order to persuade the court that the matter would be prosecuted in a timely fashion if removed from the Inactive Cases list;
(f)the repeated delays in the matter going to trial, which was the very thing Mr Lawrence had consistently told the court that he wanted to have;
(g)the costs incurred by CBH in defending the proceedings;
(h)the additional costs that would be incurred by the Respondent if the trial was adjourned; and
(i)the comfort or recompense of an award of costs to CBH is 'simply illusory' in this case.

Did the Magistrate deny Mr Lawrence procedural fairness?

Principles

There is no doubt that the Magistrate was obliged to afford procedural fairness to Mr Lawrence.[57] In determining this appeal, I must decide for myself whether the Magistrate failed to do so.[58]
[57] Defendi [44].
[58] Defendi [43].
In Defendi the Court of Appeal conveniently summarised the relevant principles, also in the context of a decision of a magistrate:[59]
It is axiomatic that a court is obliged to accord procedural fairness to a litigant.
However, to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. The second step is what is critical in most cases.
Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.
The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.
[59] Defendi [45] - [48] (references omitted).
The Court of Appeal went on to outline some relevant features of the legislation and rules governing the procedures of the Magistrates Court, including MCCPA s 13 which I have quoted at [54]. The court observed:[60]
It is no doubt the case that a magistrate is required to exercise the above powers in a manner which ensures that the proceedings are conducted in a fair manner, and that the parties to those proceedings have a sufficient opportunity to present their respective cases.
[60] Defendi [54].
However, it added that the regime in the Magistrates Court 'create[s] substantial obstacles for a contention that the Magistrates Court is required in every case to provide parties with the opportunity to be heard orally'.[61]
[61] Defendi [54].
Additional considerations apply where one of the parties is a litigant in person. Specifically, the principles which I set out at [43] and [44] applied equally to the decision before the Magistrate.[62]
[62] Williams v Sadeghpour [2021] WADC 111 [79] (Gething DCJ).
In the present case, the Magistrate made what in my view were appropriate and reasonable efforts to contact Mr Lawrence. The court also spoke to Mr Bayens whom the court was aware was assisting him. The Magistrate further allowed Mr Lawrence an appropriate amount of procedural leniency as a litigant in person to ensure that the adjournment application could be dealt with on its merits.
In my view, procedural fairness did not require the Magistrate to wait until Mr Lawrence could be found and heard before dealing with the adjournment application. Such an approach would in effect mean that an application by an absent party for an adjournment on medical grounds would always practically succeed as the hearing would have to be adjourned until the absent party could be found and attend. The courts in this State routinely deal with, and refuse, applications to adjourn on medical grounds in the absence of the party on whose behalf the certificate is presented.[63] This approach is ordinarily necessary to give effect to the principles in MCCPA s 13 and its equivalent in Rules of the Supreme Court 1971 (WA) O 1 r 4A and r 4B.
[63] See for example: Thorp and Frigger.

Did the Magistrate make an error in exercising the discretion not to adjourn the trial?

In Mineralogy Pty Ltd v Sino Iron Pty Ltd the Court of Appeal succinctly summarises the general principles by which a court determines whether to adjourn the hearing of an appeal:[64]
In considering an application to adjourn the hearing of an appeal, the court evaluates the interests of justice and is informed by the goals and objects of O 1 r 4A and r 4B of the RSC. Insofar as the time of the court is a publicly‑funded resource, inefficiencies in the use of that resource arising from the vacation or adjournment of hearings is properly taken into account in the exercise of the discretion. The public interest in the efficient use of court resources is a relevant consideration in the exercise of the discretion to adjourn …
The considerations which will inform the interests of justice include (1) the lateness of the adjournment application, (2) whether the adjournment arises in the broader context of lengthy and drawn out litigation between the parties, (3) the prejudice to the applicant if the adjournment is not granted, (4) the prejudice to the respondent to the application if the adjournment is granted, and (5) case management considerations and the efficient use of the court's resources.
[64] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2021] WASCA 53 [20] - [21] (reasons of the court).
Those principles apply equally to a trial.
The issue of an adjournment on medical grounds was considered by the Court of Appeal in Sethi. That decision was in response to a registrar's notice to show cause why the appeal should not be dismissed pursuant to Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(ii). The court dismissed the appeal on the basis that it had no reasonable prospects of success. The first instance decision was a decision by a Magistrate not to adjourn a trial. The application was made at the commencement of a two‑day trial that had been listed some seven months earlier. It was based on a medical certificate issued the day before in the following terms:[65]
[The second appellant] is suffering from clinical features of Bacterial Pharyngitis. She has severe sore throat, cough, tiredness and hoarse voice. She is currently on antibiotics and cough medicine. I expect her to recover from the current illness in about 1 - 2 weeks time
[65] Sethi [8].
The appellants had engaged a lawyer for the purpose of attending the hearing and making the application to adjourn. The Magistrate refused the application to adjourn and entered judgment against the appellants on a default basis. The Magistrate observed that there was no reason why the first appellant could not have appeared. The appellants later sought, unsuccessfully, to set aside the default judgment. The appellants appealed unsuccessfully to the District Court from the initial decision to adjourn.[66]
[66] Sethi [6] - [12], [28] - [30].
The Court of Appeal summarised the principles governing appellate review of a decision to refuse to adjourn a trial in the following terms:[67]
[67] Sethi [44] (references omitted).
The applicable principles to such an exercise of appellate review are well established:
1.The court has an inherent power … to grant or refuse an adjournment of proceedings. The power involves the exercise of a judicial discretion …
2.In the Magistrates Court the exercise of the discretion will be informed by s 13 of the Magistrates Court (Civil Proceedings) Act:
(1)In dealing with cases … the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring:
(a)that cases are dealt with efficiently, economically and expeditiously; and
(b)so far as is practicable, that the parties are on an equal footing; and
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
3.The exercise of the discretion will also be informed by the proper principles of case management as enunciated in Aon Risk Services Australia Ltd v Australian National University … For example, insofar as the time of the court is a publicly funded resource, inefficiencies in the use of that resource arising from the vacation or adjournment of hearings is properly taken into account in the exercise of the discretion: the public interest in the efficient use of court resources is a relevant consideration … That is provided for expressly in the Magistrates Court by s 13(2)(c) of the Magistrates Court (Civil Proceedings) Act.
4.There is no entitlement to an adjournment. While all matters relevant to the exercise of the power to adjourn should be weighed it will often be relevant to consider whether the applicant for adjournment has been accorded a sufficient opportunity to prepare and present his or her case …
5.As the decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, it is seldom that an appellate court will review such a decision. Usually it is necessary to show that the refusal of an adjournment defeats the rights of a party …
6.Insofar as the unsuccessful applicant for an adjournment is challenging the exercise of a discretion, any such appeal requires application of the principles in House v The King … Moreover, special restraint applies to appellate intervention insofar as the order is interlocutory in nature and concerns a matter of practice and procedure …
The principles relating to the power to grant or refuse an adjournment, and relating to an appeal from a decision of this kind, were also recently stated by the Court of Appeal in similar terms in Snook v Registrar of Fines Enforcement Registry.[68] This decision involved an application for judicial review of a decision of a Magistrate pursuant to Magistrates Court Act 2004 (WA) s 36. It was listed for hearing on 18 December 2019. On 11 December 2019 the primary judge refused an application for an adjournment. The Court of Appeal heard an application for a stay of this decision on 13 December 2019, refused it, with reasons to follow. The court observed that usually it is necessary to show that the refusal of an adjournment defeats the rights of a party.[69] The Court of Appeal determined that 'this is not a case where the refusal of the adjournment defeats Ms Snook's rights'.[70] Specifically: [71]
Ms Snook has a right to bring the proceedings. Thereafter the process for determination of the proceedings is governed by the court's practices and procedures including the rules of the court and the principles enshrined in O 1 r 4A and r 4B. It is necessary, in the interests of justice, that Ms Snook have sufficient opportunity to prepare and present her case for hearing. It cannot be said that such an opportunity has not been accorded to Ms Snook. The proceedings have been on‑foot since October 2018 and, on 23 July 2019, were initially listed for a final hearing in November 2019. Ms Snook has known since 2 October 2019 that the final hearing had been re-scheduled for 18 December 2019. There has been more than an adequate opportunity for Ms Snook to prepare her case for presentation at the hearing.
[68] Snook [29] - [30] (references omitted).
[69] Snook [30], citing Bloch v Bloch (1981) 180 CLR 390, 395 - 396 (Wilson J with whom Gibbs CJ, Murphy and Aickin JJ agreed); MTI v SUL (No 3) [2012] WASCA 145 [38] (judgment of the court).
[70] Snook [39].
[71] Snook [39].
The principles by which the court determines a late application to vacate a hearing were again stated in similar terms in Thorp.[72]In that case, Mr Thorp applied to vacate an appeal hearing the date before it was scheduled on medical grounds. In his affidavit in support, he deposed that, for some time he had been in receipt of medical attention in regard to a serious cardiac condition that required surgery and ongoing recovery. The nature of the cardiac condition was unspecified. He provided to the court a certificate from a general practitioner to the effect that he would be unfit to attend to any aspect of his court case from 23 June 2022 to 23 September 2022. He also advised the court that he was not in a position to proceed with the appeal as he had not been able to obtain legal representation, something that he was pursuing.
[72] Thorp [10] - [17].
The Court of Appeal declined to vacate the appeal hearings. There were three broad reasons for doing so. The first was that the medical certificate was described as being 'perfunctory'. Given the reliance placed on this passage by the Magistrate and the reference to the word 'perfunctory' it is appropriate that I quote the relevant passage in full:[73]
The medical certificate proffered by Mr Thorp is perfunctory. It does not refer to when Dr Wong most recently examined Mr Thorp (if, indeed, Dr Wong has conducted any recent examination of Mr Thorp). It does not refer to the medications that Mr Thorp takes, if any, or any ongoing side effects. It does not explain why, almost 21 months after Mr Thorp's medical condition manifested, Mr Thorp is still unable to participate in an appeal hearing - although, self‑evidently, Mr Thorp will have been attending to his normal day‑to‑day activities for some time since September 2020. The medical certificate does not offer any reasons for the opinion expressed. Importantly, it does not differentiate between a conclusion that Dr Wong might have reached based on his own observations and a conclusion based on what has been said to him by Mr Thorp.
We were not satisfied that the medical certificate provided a sufficient reason for not proceeding with the appeal hearings.
[73] Thorp [11] - [12].
The second was that there was an absence of real prejudice to Mr Thorp. This was because he filed written submissions, the respondent was not going to appear to contradict the appeal and all that Mr Thorp would be doing at the hearing was to amplify his written submissions by oral submissions. Moreover, he had been aware of the appeal hearings for some four months, so had ample time to prepare any oral submissions he wished to make.[74]
[74] Thorp [13], [15].
The third was case management principles and the wider public interest:[75]
The appeals have been on foot for a considerable time. Their resolution should not be further delayed without good reason. Doing so would be contrary to case management principles and the interests of justice.
…
The applications to vacate were made very late in the day - the afternoon before the appeal hearings. No explanation was given for the lateness. The lateness of the applications was such that, were the applications to be acceded to, the coram would not be able to hear some other parties' appeal. Inevitably the outcome of vacating the hearing of these appeals would be that other litigants would fall back further in the queue of litigants waiting to have their appeals heard. That is not in the interests of justice.
[75] Thorp [14], [16].
In Frigger Mitchell J considered a medical certificate in vague terms, which he considered to be inadequate:[76]
On 18 November 2015, the plaintiff filed an application requesting an adjournment of the hearing of the summary judgment application listed for the following day. She attached a certificate from Dr Scurry of the Reynolds Road Medical Centre of the same date, indicating that Mrs Frigger was 'medically unfit from 18/11/15 until 20/11/15 inclusive'. The certificate did not specify what Mrs Frigger was unfit for, or give any indication of the cause of that unfitness.
…
The plaintiffs have not adduced any admissible evidence of Mrs Frigger's current incapacity. The medical certificate is entirely unspecific, and Mrs Frigger has, by taking the steps I have described in these proceedings, demonstrated an existing capacity to manage her legal affairs. In a context where there is some evidence of Mrs Frigger having obtained professional legal services, there is no evidence as to why a solicitor or counsel could not have been briefed to attend today. There is no material suggesting that Mr Frigger was incapable of attending court today. The inference which I draw from the procedural history I have described is that the plaintiffs have been doing whatever they can to avoid the hearing of the defendant's summary judgment application taking place tomorrow. The issue of Mrs Frigger's illness was raised only after the plaintiffs had reason to apprehend that other steps they had taken to avoid the hearing might not succeed. In that context, an emailed non-specific medical certificate does not provide a sufficient basis for adjourning the defendant's application to set aside the notice of discontinuance.
[76] Frigger [12], [35].
In relation to medical certificates, in Mueller v PSAL Pty Ltd, Murphy JA observed:[77]
In the medical certificate of 4 December 2014 the doctor expressed the view that the appellant had a 'medical condition' … That opinion is so vague and lacking in cogency that even if it were admissible (which it is not), no reliance could be placed on it. As Barrett J observed in Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 '[b]ald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything' [22].
[77] Mueller v PSAL Pty Ltd [2015] WASCA 48 [91] (Murphy JA).
In summary, when exercising the discretion to adjourn a hearing, the fundamental question for the court is whether it is in the interests of justice to do so. Where the adjournment is sought on medical grounds, the considerations which inform the interests of justice include:
(a)the timing of the adjournment application, in particular its proximity to the hearing in question;
(b)whether the adjournment arises in the broader context of lengthy and drawn out litigation between the parties;
(c)the cogency of the medical evidence;
(d)the prejudice to the applicant if the adjournment is not granted, including whether they have had a sufficient opportunity to prepare and present their case and the extent to which their rights will be defeated;
(e)the prejudice to the respondent to the application if the adjournment is granted; and
(f)the public interest in the efficient use of court resources, informed by case management considerations, in particular as expressed in MCCPA s 13.
As referred to in Sethi and Snook, the appeal is to be determined in accordance with the principles set out in House.[78] Those principles are:[79]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[78] Sethi [33]; Snook [30].
[79] House (504) - (505).

The grounds of appeal which I have set out at [35], and as elaborated in written submissions, are not framed in terms of the principles set out in House.
To the extent that Mr Lawrence asserts that the Magistrate applied an incorrect legal test, on my reading of the transcript, the Magistrate views the application as requiring the exercise of a discretion and refers to each of the factors I have set out at [83]. So, there is no error on that basis.
Rather, it is sufficient to determine the appeal by reference to most general of the principles set out in House, being that error may be inferred if the decision under appeal is 'upon the facts is unreasonable or plainly unjust'.[80] Or put slightly differently, the decision 'was so unreasonable that no reasonable judicial officer could have made it'.[81]
[80] House (505).
[81] Snook [35].
In order to enquire whether the Decision was so unreasonable that no reasonable judicial officer would have made it, it is instructive to refer to the factors set out at [83]. This is in the context that Mr Lawrence had no entitlement to an adjournment,[82] and the onus was on him to present sufficient evidence before the court to make it appropriate to exercise the discretion to adjourn in his favour.
[82] Sethi [44].
The application by Mr Lawrence was late, made in the days prior to the commencement of the trial. However, the catalyst for the application was his visit to the Peel Health Campus on 30 April 2023, so the lateness of the application is readily explained, and does not count against the exercise of the discretion. So, in contrast to the position in Thorp ([77]), there was an explanation for the lateness of the application.
The application arises in the broader context of lengthy and drawn out litigation between the parties, as summarised by the Magistrate at [9]. This was the fourth set of trial dates which were to be vacated. However, as the Magistrate's chronology makes clear:
(a)the first trial dates (8 and 9 March 2021) were vacated on medical grounds less than a week prior;
(b)the second trial dates (9 and 10 August 2022) were vacated as the trial fees were not paid, though these dates were vacated two months prior to the hearing;
(c)the third trial dates (1 and 2 November 2022) were vacated on medical grounds just under a week prior; and
(d)the fourth trial dates (2 and 3 May 2023) were set on 17 November 2022.
The only vacation which could be said to be the 'fault' of Mr Lawrence is the second date, though he explains in his submissions that this was the result of a belief that the trial fees paid for the first trial dates would be transferred to the second trial dates. Unlike the position in Frigger ([81]), this is not a case in which the inference could be drawn that Mr Lawrence had been doing whatever he could to avoid the trial proceeding.
As to the cogency of the medical evidence, the certificates described at [12] and [13] are proforma documents devoid of any meaningful information. They are of similar poor quality to the medical evidence in Sethi ([73]), Thorp ([77] - [79]), Frigger ([81]) and Mueller ([82]). There is no medical evidence as to Mr Lawrence's symptoms and why these symptoms prevented him from appearing in court. It is difficult to characterise siting in a court room as 'strenuous' work. I note in this regard that Mr Lawrence had filed statements of intended evidence from the witnesses he intended to call,[83] so he did not need to ask them any questions to adduce their evidence. The same with his evidence. As was the case in Thorp ([79]), the difficult work of preparation had been done prior to the appearance. The Magistrate could have easily accommodated any request for Mr Lawrence to be able to stay seated, or take more breaks than usual, had that been necessary. The poor quality of the medical evidence is a strong factor against there being an adjournment.
[83] MB 186 (Amie Bolton), 195 (Matthew Mews), 342 (Christie Parsons), 538 (Denise Wieland), 542 (Aiden Quirke), 551 (Joan Lawrence), 559 (Carole Johnson), 564 (Cornelis Bayens) 579 - 580 (Anton Wieland).
As to the prejudice to Mr Lawrence if the adjournment was not granted, he has clearly had a sufficient opportunity to prepare his case. Among other things, this is evident from the fact that he filed statements of intended evidence from a number of witnesses. So, in this respect, it may be contrasted to the facts considered by the Court of Appeal in Snook ([76]) and Thorp ([77]). The issue is whether Mr Lawrence had sufficient opportunity to present his case. The effect of the adjournment being granted is that Mr Lawrence lost the opportunity to have the Magistrates Court hear and determine the Claim. In the Claim, he sought the maximum amount of damages which that court could award, being $75,000. This is not a case in which the amounts in issue are minimal.
As to the prejudice to CBH, if the trial was adjourned it would have some costs thrown away be reason of the adjournment. I agree with the Magistrate's conclusion that an order for Mr Lawrence to pay these costs would have been illusory.
As to case management considerations and the efficient use of the court's resources, three prior sets of trial dates had been allocated and not used. The first and third dates were at so late a stage that it is difficult to see how they could be reallocated to another trial. The same with the fourth dates the subject of the application under review.
As I have mentioned, it is not sufficient for Mr Lawrence to satisfy the court that a decision other than that made by the Magistrate was correct and preferable.[84] There must be an error. Specifically, he must establish that the Decision was so unreasonable that no reasonable judicial officer could have made it.[85] Given the poor quality of the medical evidence, in the context of the previous attempts to list the Claim for trial and the lack of any means to compensate CBH for its costs thrown away, I am not able to so characterise the Decision. Rather, I am comfortably satisfied that the decision to refuse the adjournment application was reasonably open to the Magistrate for the reasons that her Honour gave.[86]
[84] Marks [124].
[85] Snook [35].
[86] Snook [35].
Mr Lawrence has not persuaded me that the Magistrate erred in the exercise of the discretion to adjourn the trial of the Claim.

If the Magistrate denied Mr Lawrence procedural fairness, did this deprive him of the possibility of a successful outcome?

There is a further reason to dismiss the appeal. This arises in case I am wrong in my decision that the Magistrate did not deny Mr Lawrence procedural fairness. Not every departure from the rules of procedural fairness will entitle the aggrieved party to an order for a retrial. Such an order will be made only if the error deprived the party of the possibility of a successful outcome.[87]
[87] Defendi [59].
This requires me to consider whether, had the Magistrate given Mr Lawrence the opportunity to make submissions, there was a possibility that it would have made a difference to the outcome.
There are two aspects to this. The first whether there was a possibility of a successful outcome had Mr Lawrence been able to make oral or written submissions to the Magistrate. I proceed on the basis that the submissions that Mr Lawrence would have made to the Magistrate had he been given the opportunity would have been the same submissions which he made in the appeal. On those submissions, I do not consider that there was a possibility of a successful outcome. The submissions made in the appeal more or less mirrored the considerations identified by the Magistrate in favour of Mr Lawrence.
The second aspect relates to the Further Evidence. This is whether, had Mr Lawrence in the course of an opportunity to make submissions adduced the Further Evidence, there was a possibility it would have made any difference to the outcome of the Decision.
The first document comprising the Further Evidence is the notes of his admission to the Emergency Department at Peel Health Campus on 30 April 2023. It is to the effect that:
(a)Mr Lawrence presented at 9.49 am;
(b)he reported that he had a nightmare the night before and fell out of bed, hitting his head and grazing his shoulder;
(c)he also reported paraesthesia to his left leg which resolved within minutes;
(d)he complained of a right‑sided headache, with no other injuries, nausea or vomiting;
(e)on examination he was found to be 'generally well, alert, interactive';
(f)a CT scan was done of his brain, which revealed '[n]o acute intracranial abnormality or acute traumatic insult';
(g)he had a chest X-ray which (albeit on my lay reading) did not reveal anything of concern;
(h)the only medication he is recorded as having was a dose of paracetamol at 10.40 am;
(i)at 3.35 pm, it is recorded that his vitals were stable and he reported 'nil pain'; and
(j)at 5.15 pm he was discharged in company with his wife.
In my view, there is nothing in this report which suggests that Mr Lawrence would not have been fit to attend court on 2 May 2023. Moreover, there is nothing in this report which corroborates Mr Bayens' statement to the Magistrate that Mr Lawrence required stitches to his head.[88]
[88] MB 762.
There is no further evidence in relation to the 1 May 2023 attendance.
The second document is a cardiologist's report. It relates to an investigation on 8 May 2023. Mr Lawrence submits that this is to the effect that the pacemaker which he had recently had implanted was operating too slowly given his age. It was adjusted to a faster pace which Mr Lawrence reports resulted in an immediate improvement to his condition. Something to this effect is evident on the face of the report which provides:
Rate response added and walk tested - patient happy to proceed with changes
However, this document does not assist in analysing Mr Lawrence's capacity to participate in the trial on 2 and 3 May 2023.
I do not consider that had the Further Evidence, in particular the emergency department notes, been before the court, there was a possibility that the Magistrate would have made a different decision. The Further Evidence does not in any way suggest that two days later (2 May) Mr Lawrence was unfit to present his case.

What final orders are appropriate?

The appropriate final order is to dismiss the appeal.
I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
20 NOVEMBER 2023