Li v Cox
[2012] WADC 97
•29 JUNE 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LI -v- COX [2012] WADC 97
CORAM: STAUDE DCJ
HEARD: 18 JUNE 2012
DELIVERED : 29 JUNE 2012
FILE NO/S: APP 13 of 2012
BETWEEN: DONG GUANG LI
Appellant
AND
KERRY COX
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B LANE
File No :GCLM 15924 of 2011
Catchwords:
Appeal - Magistrates Court - Where the magistrate erred in striking out claim pursuant to s 17(1) Magistrates Court (Civil Proceedings) Act 2004 - Appeal commenced out of time - No power to extend time
Civil procedure - Magistrates Court - Application dealt with in absence of party - Whether service by email sufficient
Legislation:
Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court (Civil Proceedings) Rules 2005
Magistrates Court (General) Rules 2005
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Respondent: Ms A Williamson
Solicitors:
Appellant: Not applicable
Respondent: Office of Legal Services, Edith Cowan University
Case(s) referred to in judgment(s):
Grossetti v Grossetti [2011] WADC 78; Ho v Loneragan [2011] WADC 133
Tuma Holdings Pty Ltd v Silverbay Enterprises Pty Ltd [2011] WADC 181
Wilson v Westpac Banking Corporation Ltd [2011] WADC 13
STAUDE DCJ:
Introduction
The appellant, Dr Li, appeals from orders made by her Honour Magistrate Lane on 19 December 2011 that the claimant's claim be struck out in accordance with s 17(1) of the Magistrates Court (Civil Proceedings) Act 2004 and that the claimant pay the defendant's costs. The orders were made on the respondent’s application on the grounds that the respondent (defendant) was wrongly joined. Dr Li was not present and was therefore not heard. Dr Li complains that he was not served with the application. He alleges a breach of natural justice and submits that he should have been offered an opportunity to amend his claim before it was struck out.
At the hearing of the appeal Dr Li appeared in person. He was assisted by some extent by a Mandarin interpreter, Ms Liu. Although Ms Liu interpreted what was said by others during the hearing, Dr Li was able to make his oral submissions in English.
At the conclusion of the hearing I indicated to Dr Li that in my opinion his appeal must fail, but that I would formally reserve my decision and give reasons in writing. The appeal must fail because it was not brought within time and there is no power to extend time. However, in fairness to Dr Li, who is aggrieved by what transpired in the court below and clearly distressed by the course of this litigation, I propose to set out fully my observations of this matter. Justice is as much about process as it is about outcome.
For the purpose of this appeal I have had regard to the Magistrates Court file which was provided pursuant to r 52 of the District Court Rules 2005, and which includes a transcript of the hearing on 19 December 2011.
Factual background
Dr Li was employed by Edith Cowan University (ECU) in 1995 as a lecturer in computer and information science. ECU is a body corporate by operation of s 5(2) of the Edith Cowan University Act 1984. Dr Li's employment was terminated by letter dated 11 November 2011 for alleged misconduct. The grounds of the termination were disputed by Dr Li. They have been the subject of other proceedings. According to Dr Li, he was exonerated of any misconduct.
On 9 March 2011 ECU notified Dr Li by letter that his leave entitlements came to $39,149.77, but that it would deduct from its final payment an amount of $4,200 because Dr Li had not returned a computer, a camera and two keys. The university claimed $600 for the computer, $700 for the camera and $2,900 in total for the cost of making 40 replacement keys (at $30) and changing 17 locks (at $100). According to ECU, the net amount of $34,949.77 was paid by a cheque delivered to Dr Li at his residential address on 21 March 2011. The cheque was not negotiated, however, until 20 October 2011.
Dr Li's claim
On 21 September 2011 Dr Li lodged a general procedure claim at the Perth Registry of the Magistrates Court. The defendant was described as 'Kerry Cox, Edith Cowan University, 270 Joondalup Drive, Joondalup, WA'. The claim was for $64,993.77, plus interest from 11 January 2011. The description of the claim was as follows:
I worked for Edith Cowan University since 1995 for more than 15 years. I left Edith Cowan University on 11 January 2011. ECU informed me that I was paid my entitlements (long service leave and annual leave) of $64,993.77 on 17 March 2011. ECU claimed that a cheque of payment of $34,949.76 was delivered to my home on 21 March 2010. However I did not receive it. I received the payment summary issued by ECU recently that states my gross payments are $126,144 in the 2010/2011 financial year. It is incorrect because it included the payment I did not receive. ECU insists on that I have signed and received the payment and refuses to amend the PAYG payment summary sent to ATO.
I am seeking the outcomes:
1.ECU pays me $64,993.77;
2.ECU pays the interest owing to me since 11 January 2011; and
3.ECU correct the error in the PAYG payment summary sent to Australian Taxation Office.
This description made it clear that the claim was against the university.
Dr Li conceded at the hearing of the appeal that he been paid the amount of $34,949.77 and that there was no dispute as to the amount of his leave entitlements. The only remaining issue in relation to his claim was the deduction of $4,200 from the university's final payment. According to Dr Li, the university had no power to make this deduction. Dr Li wanted a resolution of this issue. I informed Dr Li that this was not possible in the context of the appeal.
Dr Li also conceded that his employer was ECU, not Professor Cox. He maintains that when he lodged his claim he was advised by registry staff at the Magistrates Court that he had to name a contact person and that it was for this reason that he named Professor Cox. Dr Li disputed the veracity of the note on the court file which states that he was advised when he lodged the claim that the claim was properly against the university, not Professor Cox, and that he risked an award of costs against him if he insisted on naming Professor Cox as the defendant. Rather, Dr Li stated that a number of court staff advised him to the contrary.
I did not receive any evidence on this issue. It is not one that I need to decide. I would observe, however, that although it may seem unlikely that the note on the court file would be false, as Dr Li submits, that fact of the note was made at all raises a question as to the extent to which registry staff at the Magistrates Court purported to give legal advice. (It is also of concern that when I suggested to Dr Li that he could apply to have the orders made in his absence set aside pursuant to s 17(3)), he said he was informed by registry staff that his only remedy was an appeal to this court.)
At most, the description of the defendant as 'Kerry Cox, Edith Cowan University' created an ambiguity, but it was not one that would affect the resolution of the claim on its merits.
On the claim form Dr Li inserted his residential address and ticked a box indicating that that was his address for service. Under 'contact details' he gave his mobile telephone number and email address.
The defendant lodged a notice of intention to defend by solicitors DLA Piper. Dr Li then requested that the claim be listed for a pre‑trial conference, again stipulating as his address for service his residential address.
The court appointed a pre‑trial conference on 9 November 2011 and issued a notice of pre‑trial conference which was apparently sent by post to the parties on 19 October 2011. On 9 November 2011 Dr Li lodged a request for an interpreter at the pre‑trial conference.
According to the pre‑trial conference file note, the parties attended before Mr E Bastow. The defendant was represented by Mr B Jackson of DLA Piper and Ms Donna Cuthbert, senior employee relations officer at ECU. The file note does not indicate what transpired except that the conference was adjourned to a date to be fixed pending an application to dismiss the claim on the grounds that the named defendant was the wrong party. Why it was thought that an application was required when all that was necessary to regularise the proceedings was the deletion of Professor Cox's name I cannot determine.
A note was made to the effect that a Mandarin interpreter would be required at any further hearing. Dr Li maintains that the pre‑trial conference proceeded unfairly as he did not have an interpreter.
According to Dr Li, he heard nothing more from the court about the claim until he made an enquiry on 22 February 2012 as to when a further pre‑trial conference would be listed and was told that the claim had been struck out. He said he was unaware until that time of the application to strike out the claim on which the orders appealed from were made.
Dr Li said he never received a copy of the order. The court file includes a form 25 general order in terms of the orders made on 19 December 2011 which is unsealed. There is nothing on file to show that a formal order was sent to the parties.
The application to strike out
It is apparent from the court file that on 29 November 2011 the defendant's solicitors filed an application dated 25 November 2011 for orders that the claim be struck out in accordance with s 17(1) of the Magistrates Court (Civil Proceedings) Act 2004, alternatively the summary judgment be given for the defendant without a trial, and that the claimant pay the defendant's costs.
The application was endorsed by a registrar with a notice that the application would be heard on 19 December 2011 at 11.00 am. The application was also endorsed with the name and residential address of the claimant, Dr Li. There is a note on file by a registrar which indicates that the application was sent by post to DLA Piper on 29 November 2011 for service by the defendant. The court file also reveals that an interpreter was booked.
Appendix A to the application indicates that the grounds of the application were, in summary, that the named defendant was not a party to any employment contract and that the claimant had been paid his leave entitlements.
The application was supported by an affidavit by Ms Cuthbert which annexed numerous documents, including copies of the claimant's employment contracts which indicated his employer as ECU. Other documents included a copy of the letter terminating Dr Li's employment and ECU's letter of 9 March 2010, to which I referred, informing him of his leave entitlements and the amount assessed by the university, wrongly described as a 'recovery of outstanding debts', to be unilaterally deducted for the non‑return of property which the author acknowledged was disputed by Dr Li.
The affidavit in support of the application did not acknowledge the dispute over the alleged non‑return of property, or purport to substantiate the amount of the reduction or the university's right to make it. It suggested, by the insertion of a heading 'Payment of all outstanding entitlements to Dongguang Li', that such payment had been made and that there was no remaining issue in respect of Dr Li's entitlements.
The strike‑out application was defective. Section 17(1), which is reproduced below, empowers a magistrate to strike out a case statement, not a claim as such. The only application open to the defendant in the circumstances was for summary judgment pursuant to s 18, the affidavit in support of which was inadequate.
Service of the application
On behalf of the respondent (defendant), Ms Williamson informed me that the application was served by email. Ms Williamson provided printouts of two emails from Mr Jackson of DLA Piper to Dr Li. The first, dated 2 December 2011, reads:
Dear Dr Li,
I attach by way of service an application together with a copy of an affidavit of Donna Cuthbert.
Our application is listed at 11.00 am on 19 December 2011.
Yours sincerely
Brian Jackson
The second, dated 15 December 2011, reads:
Dear Dr Li,
I refer to our email of 2 December 2011. I confirm that our strike out application is listed at 11.00 am on 19 December 2011.
Brian Jackson
It is submitted by Ms Williamson that service by email of the application was sufficient.
Rule 101 of the Magistrates Court (Civil Proceedings) Rules 2005 provides:
(1)Unless personal service is required under these rules, if a person wants to serve a document on someone, the person must do so -
(a)by delivering it, or sending it by prepaid post -
(i)if an address has been provided under rule 102, to that address; or
(ii)if an address has not been provided under rule 102, to the parties usual or last known place of residence or principal or last known place of business, as the case may be; or
(b)subject to the Magistrates Court (General) Rules 2005, by email or fax.
(2)In order to serve a document on someone personally, a person must do so in accordance with provision 2.
(3)Nothing in this rule prevents a person from consenting to being served in a manner other than in accordance with this rule.
Rule 102 of the Magistrates Court (Civil Proceedings) Rules 2005 provides, relevantly:
(1)A document lodged in relation to a case must contain a residential or business address for service.
(1A)The address for service specified on the document is to be taken to be the party's address for service under this Division until —
(a)if the document specified the address of a lawyer under subrule (5), the lawyer lodges a notice in the approved form —
(i)stating that the lawyer no longer acts for the party; and
(ii)specifying the party’s address for service under subrule (2), (3) or (4), as the case requires, or any new address for service under subrule (5) that is known to the lawyer;
or
(b)a notice of change of address is lodged under subrule (6).
(2)If the party lodging the document is an individual who is not represented by a lawyer, the address for service must be the usual place of residence or principal place of business address of the individual.
Rule 13 of the Magistrates Court (General) Rules 2005 relevantly provides:
(2)For the purpose of enabling the service by email of documents that rules of court require to be served, a person who is not registered by the court's website as a person authorised to lodge documents electronically made, in addition to providing an address for service in accordance with rules of court, provide an email address operating at that address.
(6)A person who under this rule provides an email address or a fax number is taken to consent to being served with documents by fax at that fax number, or as an attachment to an email sent to that email address, as the case may be.
Rule 14(1) provides:
If rules of court require a person to serve a document, then, unless the contrary intention appears, the person may serve the document -
(a)if the party is provided a fax number under rule 13(1), by sending the document by fax to that number; or
(b)if the party has provided an email address under rule 13, by sending the document as an attachment to an email sent to that address.
Rule 111 of the Magistrates Court (Civil Proceedings) Rules 2005 provides that a party making a written application must serve a copy of the application and any supporting affidavit on every other party after it has been lodged at least 10 days before the application.
In my opinion, the rules required that the application be served by post on the address for service nominated by Dr Li. Although he included his email address in his contact details on the claim form, he did not give it as an address for service. When one has regard to the express provisions of r 101 and r 102 of the Magistrates Court (Civil Proceedings) Rules 2005, it is clear that r 13 of the Magistrates Court (General) Rules 2005 applies only where an email address has been given as an address for service in addition to a residential or business address.
Service of the application on Dr Li by email was insufficient in the circumstances.
Hearing of application
The transcript of the hearing indicates that the matter was called on at 11.27 am and concluded at 11.32 am. An interpreter was in attendance. Dr Li was not. The learned magistrate proceeded to deal with the application in the absence of Dr Li. Her Honour made the following observation:
And certainly he has received a copy of the summary judgment application or the strike-out application and he was fully aware of what the issues would be.
Rule 113 provides that an application must be dealt with in the presence of the parties to the application unless the rules provide otherwise or the court dealing with the application orders otherwise.
There is nothing in the transcript or on the court file to indicate on what basis her Honour considered that the application had been served. The defendant's solicitor did not produce any proof of service. Her Honour showed some concern for the unnecessary attendance of the interpreter, but no question was raised by her Honour or by the solicitor for the defendant as to whether in the absence of the claimant the hearing should not proceed. The defendant's solicitor did not suggest an adjournment as one might have expected. It is not apparent that any regard was paid to r 113.
Section 17 of the Magistrates Court (Civil Proceedings) Act 2004 provides:
(1)The Court may strike out all or part of a case statement if –
(a)any claim in it is outside the Court's jurisdiction; or
(b)it does not disclose any reasonable grounds for any claim, or for any defence, in it; or
(c)its purpose is to harass or annoy or to cause delay or detriment, or is otherwise wrongful; or
(d)it is an abuse of the Court's process; or
(e)it is frivolous, vexatious, scandalous or improper.
(2)If the Court strikes out all of a case statement the Court may give judgment accordingly without a trial.
(3)The Court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.
'Case statement' is defined in s 3 of the Act as follows:
'Case statement' means a statement of a party's claim, or of a party's defence, whether as originally lodged with the court or as amended or as supplemented by additional information given voluntarily or as ordered by the Court.
Rule 18(1) provides that the court may give judgment against a claim without a trial if the party making the claim does not satisfy the court that the claim has a reasonable prospect of succeeding.
At the hearing of the application the learned magistrate made an order pursuant to s 17(1) that the claim be struck out, not the case statement. In making the order her Honour did not formally enter judgment for the defendant. Clearly, however, the effect of striking out the claim and ordering that the plaintiff pay the defendant's costs of the action was to finally dispose of the action, subject to any application that might be made pursuant to s 17(3). The orders amounted to judgment.
The Magistrates Court (Civil Proceedings) Rules 2005 provide by r 41A(1) that if the registrar at the pre‑trial conference orders a party to lodge and serve a statement of claim, the party must do so in accordance with the rules.
In this case no order was made by the registrar at the pre‑trial conference requiring Dr Li to lodge and serve a statement of claim. Indeed, there was no case statement before the court to which a s 17 application to strike out could be directed. Section 17 merely empowers the court to strike out all or part of a case statement in any of the prescribed circumstances, and, if all of the case statement is struck out, to give judgment without a trial.
The learned magistrate expressly did not make an order for summary judgment pursuant to s 18. It would appear, however, from the transcript of the hearing that the learned magistrate was satisfied that the claim against Professor Cox had no reasonable prospect of success.
The learned magistrate erred in proceeding with the hearing of the application in the absence of Dr Li when there was no proof before the court that he had been served and in any event without making the requisite order pursuant to r 113. Furthermore, the learned magistrate erred in purporting to strike out the claim pursuant to s 17 when that provision contained no power for the court to do so. These were jurisdictional errors.
Time limit for appeal
Section 40 reads as follows:
(1)A party to a case that is not a minor case may appeal to the District Court against —
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
(2)An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
(3)The appeal must —
(a)be commenced within 21 days after the date of judgment; and
(b)be conducted in accordance with rules of court made by the District Court.
(4)The District Court must decide the appeal on —
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
(5)Leave may only be given under subsection (4)(b) in exceptional circumstances.
(6)Subsection (4) does not prevent the District Court from dealing with an appeal against a decision of the Magistrates Court to admit or refuse to admit any evidence.
This appeal was commenced on 23 February 2011, the day after Dr Li was informed of the order made by the learned magistrate on 19 December 2011.
Notwithstanding the fact that Dr Li did not know of the judgment until after the time limit for an appeal had expired, and the injustice that may result from Dr Li being effectively denied a right of appeal, the statutory time limit may not be extended. The Magistrates Court (Civil Proceedings) Act 2004 does not confer power to extend time: Tuma Holdings Pty Ltd v Silverbay Enterprises Pty Ltd [2011] WADC 181; Wilson v Westpac Banking Corporation Ltd [2011] WADC 13; Grossetti v Grossetti [2011] WADC 78; Ho v Loneragan [2011] WADC 133. It will give little consolation to Dr Li that the Act is to be amended to correct this anomaly.
Application to set aside
Section 17(3) empowers a magistrate to set aside a judgment entered pursuant to s 17(2). As I have observed, the learned magistrate's orders amounted to a judgment. It was open to Dr Li to apply to set it aside. I raised this with him at the hearing of the appeal. According to Dr Li, he was told by registry personnel that he could only appeal to this court. If that advice was given, it was incorrect. Although the Magistrates Court (Civil Proceedings) Rules 2005 by r 79 require such an application to be made within 21 days after the date of judgment, the Magistrates (Civil Proceedings) Act 2004 provides by s 13(1) that 'in dealing with cases … the Court is to ensure that cases are dealt with justly'. Section 16 empowers the court to extend time for compliance with the rules.
In my view it remains open to Dr Li to apply for an extension of time within which to apply to set aside the orders made on 19 December 2011. In making that observation I do not purport to pre-judge the merits. As Dr Li has not given evidence, I am not able to find as a fact that he had no notice of the hearing, but for present purposes it is a reasonable assumption to make. He was the claimant. He had attended at the pre‑trial conference. He had no reason not to attend the hearing if he had notice of it. Moreover, he later attended at the court registry to find out about the progress of the claim. It seems that he did not know of the orders until 22 February 2012 and that he understood, rightly or wrongly, that his only remedy was an appeal to this court which he commenced the following day.
The main purpose of such an application would be to set aside the costs order (which would not have been appropriate in any event, if, as it appears from the making of the affidavit in support by Ms Cuthbert, DLA Piper were instructed by the university) and, assuming the name of the defendant is then amended, to pursue a claim against ECU for the $4,200 still in dispute without having to commence fresh proceedings.
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