Love v Safari Charters Pty Ltd
[2023] WADC 124
•20 OCTOBER 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LOVE -v- SAFARI CHARTERS PTY LTD [2023] WADC 124
CORAM: PALMER DCJ
HEARD: 31 AUGUST & 15 SEPTEMBER 2023
DELIVERED : 20 OCTOBER 2023
FILE NO/S: APP 20 of 2023
BETWEEN: ROSS MAITLAND LOVE
First Appellant
ACN 163 627 423 PTY LTD
Second Appellant
AND
SAFARI CHARTERS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M CRAWFORD
File Number : PER/GCLM/4567/2021
Catchwords:
Appeal from Magistrates Court - Application to reactivate inactive case - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Civil Proceedings) Rules 2005 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| First Appellant | : | In person |
| Second Appellant | : | No appearance |
| Respondent | : | Mr K G Robson (31 August 2023), Mr D P J Cripps (15 September 2023) |
Solicitors:
| First Appellant | : | Not applicable |
| Second Appellant | : | Not applicable |
| Respondent | : | Hay Street Legal |
Case(s) referred to in decision(s):
Brocklehurst v Wolinski [2015] WADC 36
Geraty v Kneale [2018] WADC 45
Hall v Hall [No 2] [2011] WASC 110
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
Love v Griffiths [2008] WASC 168
Ward v West Coast Suzuki Marine Pty Ltd [2021] WADC 37
PALMER DCJ:
Introduction
This is an appeal from a decision of Magistrate Martin Crawford made on 21 April 2023 to dismiss an application to reactivate proceedings in the Magistrates Court.[1]
[1] Magistrates Court Lower Court File, page 1 (Magistrates Court File).
The First Appellant, Mr Love, is one of the claimants in proceedings in the Magistrates Court (Magistrates Court Proceedings). The Second Appellant is the other claimant in the Magistrates Court Proceedings, ACN 163 627 432 Pty Ltd, a company of which Mr Love is the director (Claimant Company). The Respondent, Safari Charters Pty Ltd (Safari Charters) is the defendant in the Magistrates Court Proceedings.
On 25 November 2022, the Magistrates Court Proceedings became inactive pursuant to r 95B of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (Rules).
On 7 December 2022, the Appellants applied to 'set aside' the Inactive Case Notice pursuant to r 95C(1), r 95F(1) and r 95(2) of the Rules (First Reactivation Application).[2]
[2] Magistrates Court File, pages 131 - 133.
On 13 December 2022, Magistrate Martin Crawford dismissed the First Reactivation Application.[3]
[3] Magistrates Court File, pages 127 - 128.
On 23 December 2022, the Appellants made a further application to 'set aside' the Inactive Case Notice pursuant to r 95C(1), r 95F(1) and r 95(2) of the Rules (Second Reactivation Application).[4]
[4] Magistrates Court File, pages 124 - 126.
The Second Reactivation Application was set down for hearing on 24 February 2023[5] but was then adjourned until 21 April 2023 to permit Mr Love to file further evidence and Safari Charters to respond.[6]
[5] Magistrates Court File, pages 288 - 290.
[6] Magistrates Court File, page 116.
The Second Reactivation Application was then argued before the learned magistrate on 21 April 2023. After hearing from the parties, the learned magistrate made the orders that are the subject of the present appeal.
Appeals from the Magistrates Court
The appeal is brought pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Magistrates Court Act).
An appeal from a decision of a magistrate to the District Court is by way of rehearing. It is not a hearing de novo. Given the appeal is by way of a rehearing it is necessary for the appellant to demonstrate error in the court below. This error must be a legal, factual or discretionary error.[7]
[7] Brocklehurst v Wolinski [2015] WADC 36 [13] - [15]; Ward v West Coast Suzuki Marine Pty Ltd [2021] WADC 37.
The inactive cases regime
Part 16A of the Rules
Part 16A of the Rules is titled 'Inactive cases'. In Ward v West Coast Suzuki Marine Pty Ltd,[8] Lemonis DCJ (as he then was) observed that self-evidently, the regime is designed to deal with the consequences of delay in the conduct of Magistrates Court civil claims.
[8] Ward v West Coast Suzuki Marine Pty Ltd [10].
Rule 95B(1) of the Rules provides that if no procedural step is taken in a case for 12 months by a party to a case, the case is taken to be inactive unless the court orders otherwise.
Rule 95C(1) provides that when a case becomes an inactive case, the court is to give all parties to the case written notice of the fact that the case has become an inactive case and why, and the effect of r 95D.
Rule 95D provides that when a case is inactive, the only documents that may be lodged in the court in relation to an inactive case are:
(a)an application for an order under rule 95E; or
(b)a notice of discontinuance under rule 29; or
(c)a memorandum of consent to an order or judgment that would finally dispose of the case.
Rule 95E provides for the reactivation of cases that become inactive. That rule provides:
95E.Cases no longer taken to be inactive
(1)A party to an inactive case may apply to the court for an order that the case is no longer taken to be inactive.
(2)The court may order that an inactive case is no longer taken to be inactive -
(a)if it is satisfied that the case will be conducted in a timely way; or
(b)for any other good reason.
(3)When the court orders that an inactive case is no longer taken to be inactive, it may make further orders for the conduct of the case in a timely way.
Rule 95F(1) provides that a case that is an inactive case for six continuous months is taken to be dismissed. Rule 95F(1) provides that if no procedural step is taken in the six months after the court orders that an inactive case is no longer taken to be inactive, the case is taken to be dismissed.
In Geraty v Kneale,[9] Vernon DCJ observed that once proceedings are dismissed, the Rules contain no power to reinstate proceedings.
Principles governing applications made under r 95E
[9] Geraty v Kneale [2018] WADC 45 [3].
In Ward v West Coast Suzuki Marine Pty Ltd, Lemonis DCJ said[10] that the observations made by Beech J in Lashansky vLegal Practice Board (No 2),[11] have application to the inactive cases regime in the Magistrates Court. In Lashansky Beech J observed that:[12]
The evident scheme of pt 4 is that once a case is on the Inactive Cases List there is curial supervision of whether the case should be permitted to resume progress and, if not, after six months the action is effectively dismissed. In exercising power under O 29A r 20(2) it will be relevant to inquire whether there is evidence to explain how the case came to be on the Inactive Cases List and why it should not be expected that, if it is removed from the list, it would return to the list. It will be relevant whether there is some evidence about the state of the action and how it is proposed that it will be progressed through to a trial.
[10] Ward v West Coast Suzuki Marine Pty Ltd [21].
[11] Lashansky vLegal Practice Board [No 2] [2010] WASC 159 (Lashansky).
[12] Lashansky vLegal Practice Board [No 2] [73] - [74].
In Hall v Hall (No 2),[13] Simmonds J observed that an explanation for the delay is necessary. He said:[14]
It appears to me that Beech J in Lashansky [No 2] (WASC) particularly had in mind from Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 such paragraphs as [94] - [103] (Gummow, Hayne, Crennan, Kiefel & Bell JJ) and [6], [30] (French CJ). Those paragraphs indicate to me that a party seeking relief from the effects of a failure to comply with a time limit provided for in the rules will in most cases be expected to provide an explanation for that non-compliance, to be weighed against the effects of the failure and case management considerations (see O 1 r 4A, r 4B): see Aon Risk Management [103]. In weighing any such explanation regard will be had to its adequacy. In my view, to the extent that Lifelong Investments [13] and Love [3] might be taken to suggest that case management considerations will only in 'extreme circumstances' outweigh an explanation, that suggestion cannot be accepted. See Aon Risk Management [94], disapproving the view expressed in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154.
[13] Hall v Hall [No 2] [2011] WASC 110.
[14] Hall v Hall [No 2] [69].
Simmonds J's reference to Love is a reference to the case of Love v Griffiths.[15] That was another case in the Supreme Court in 2008 involving the same Mr Love who is the First Appellant in this case. In that case, Master Sanderson refused an application made by Mr Love to remove his case from the inactive cases list because the explanation for the delay given in the affidavit in support of the application was 'woefully inadequate'.[16]
[15] Love v Griffiths [2008] WASC 168.
[16] Love v Griffiths [5].
Additional material
On 6 June 2023, Registrar Kubacz ordered that the First Appellant file and serve his written submission by 11 August 2023.
On 11 August 2023, Mr Love filed a document with a cover page which had the title Outline of Submissions but the content of the document was an affidavit (First Appeal Affidavit).
At the hearing of the appeal on 31 August 2023, Mr Love began referring to further documents. I explained to Mr Love that he could not give evidence from the bar table and that he would need leave to rely upon materials not before the learned magistrate.
Ultimately, I adjourned the hearing of the appeal to permit Mr Love to file a further affidavit attaching the further documents he had been referring to. I said that I would rule on whether he should be entitled to rely upon the further affidavit material at the resumed appeal. I also explained to Mr Love the difference between submissions and affidavits and ordered him to file submissions.
On 7 September 2023, Mr Love filed submissions (Appellant's Submissions) and a further affidavit (Second Appeal Affidavit).
At the hearing of the appeal on 15 September 2023, I gave Mr Love leave to rely upon the First and Second Appeal Affidavits, other than some without prejudice communications attached to the Second Appeal Affidavit.[17] Mr Love also handed up a document during the hearing.
[17] ts 49 - ts 55.
The factual background
The earlier Magistrates Court proceedings
The parties to the Magistrates Court Proceedings were parties to an earlier set of proceedings in the Magistrates Court (Previous Magistrates Court Proceedings). The evidence before me in this appeal did not address those proceedings in detail but the following emerged from the available materials:
(a)the Previous Magistrates Court Proceedings were commenced in late 2019 and were discontinued on 4 May 2021;[18]
(b)the Previous Magistrates Court Proceedings were discontinued as a result of concerns about whether the proceedings were a nullity because the Claimant Company was deregistered at the time the proceedings were commenced;[19] and
(c)Mr Love was ordered to pay the costs of the Previous Magistrates Court Proceedings.[20]
The Magistrates Court Proceedings are commenced
[18] Affidavit of Robert Dodds sworn 1 July 2021(Dodds Affidavit), par 6, Magistrates Court File, page 203.
[19] Dodds Affidavit, par 7, Magistrates Court File, page 203.
[20] Dodds Affidavit, par 8, Magistrates Court File, page 204.
The Magistrates Court Proceedings were commenced by a General Procedure Claim on 7 May 2021, naming Mr Love as the claimant and Safari Charters as the defendant.[21] The Claimant Company was not named as a party to the proceedings.
[21] Magistrates Court File, page 240.
On about 11 May 2021, Mr Love applied to add the Claimant Company as a party to the proceedings.[22]
[22] Magistrates Court File, page 228.
On 12 May 2021, the Magistrates Court made orders adding the Claimant Company as a party to the Magistrate Court Proceedings.[23]
[23] Magistrates Court File, page 226.
On 26 May 2021, Safari Charters filed a Response to General Procedure Claim indicating that it intended to defend the claim.[24]
[24] Magistrates Court File, pages 221 - 222.
On 11 June 2021, Mr Love and the Claimant Company filed a Statement of General Procedure Claim.[25]
[25] Magistrates Court File, pages 215 - 216.
On 1 July 2021, Safari Charters filed a Defence to General Procedure Claim.[26]
Safari Charters applies for a stay and security for costs
[26] Magistrates Court File, pages 212 - 213.
On 1 July 2021, Safari Charters applied to add various persons as parties to the Magistrates Court Proceedings, for a stay of the proceedings and for security for costs (Stay and Security Application).[27] That application sought amongst other things orders that:
(a)the Magistrates Court Proceedings be stayed pending payment of $19,186.13 being the amount of the costs owed in the Previous Magistrates Court Proceedings; and
(b)the claimants pay an amount of $20,000.00 as security for costs in the Magistrates Court Proceedings.
[27] Magistrates Court File, page 211.
The Stay and Security Application was supported by the Dodds Affidavit.[28] Paragraph 9 of the Dodds Affidavit referred to a letter sent by Mr Dodds's solicitor, Mr Zwetsloot, regarding the costs of the Previous Magistrates Court Proceedings.[29] That letter was attached as Annexure B to the Dodds Affidavit.
[28] Magistrates Court File, pages 203 - 210.
[29] Magistrates Court File, page 204.
On 7 July 2021, the Magistrates Court wrote to the parties indicating that the Stay and Security Application would be listed for a hearing and asking for a hearing fee to be paid and for the parties to provide their unavailable dates for a hearing.[30]
Claimants apply for default judgment
[30] Magistrates Court File, page 201.
On 20 July 2021, the claimants applied for the entry of default judgment.[31]
[31] Magistrates Court File, page 178.
On 21 July 2021, the Magistrates Court dismissed the application for default judgment. The general order made by the Magistrates Court gave as the reason for the dismissal of the application that the Statement of Defence had been lodged on 1 July 2021.[32]
[32] Magistrates Court File, page 177.
On 21 July 2021, the Magistrates Court wrote to the parties indicating that the Stay and Security Application would be listed for a hearing on 27 August 2021.[33]
[33] Magistrates Court File, page 164.
On 6 August 2021, the claimants lodged an appeal against the registrar's decision in relation to the dismissal of the application for the entry of default judgment (Magistrates Court Default Judgment Appeal).[34]
[34] Magistrates Court File, pages 162 - 163.
On 26 August 2021, the Magistrates Court wrote to the parties indicating that the Magistrates Court Default Judgment Appeal would also be listed for hearing on 27 August 2021.[35]
The hearing on 27 August 2021
[35] Magistrates Court File, page 153.
The hearing on 27 August was held before Magistrate Martin Crawford.
Mr Love appeared in person. Mr Zwetsloot appeared for Safari Charters.
After hearing from Mr Love, the learned magistrate dismissed the Magistrates Court Default Judgment Appeal.[36]
[36] Magistrates Court File, pages 314 - 323, 326 - 327, 332 - 333.
With regard to the Stay and Security Application, the learned magistrate raised the fact that the costs of the Previous Magistrates Court Proceedings had not yet been assessed with Mr Zwetsloot. He suggested that the Stay and Security Application was premature and that the costs should be assessed and Mr Love given an opportunity to pay those costs before any application was advanced.[37] Mr Zwetsloot agreed with this course.[38] The learned magistrate explained his reasoning in this way:[39]
As to the issue of the defendant's application, I have got - my concern with that is, whilst they're seeking for security for costs on the basis of a failure to pay the costs order made in the previous proceedings, as Mr Love noted, and I said to him earlier, those costs have never been assessed and it appears they have never been agreed. That should occur before contemplating any re-lodgement of the application which has been withdrawn.
In those circumstances, it is entirely proper that the defendant's application lodge [sic] on 1 July 2021 is withdrawn. …
[37] Magistrates Court File, page 314, fourth par.
[38] Magistrates Court File, pages 313 - 314, final par and first par.
[39] Magistrates Court File, page 333.
The learned magistrate made orders that:
(a)the Magistrates Court Default Judgment Appeal was dismissed; and
(b)the Stay and Security Application was withdrawn.[40]
Mr Love appeals
[40] Magistrates Court File, page 152.
Mr Love appealed the learned magistrate's dismissal of the Magistrates Court Default Judgment Appeal to the District Court. The details of that appeal were not put before the learned magistrate but he was told that the appeal was dismissed on 17 December 2021.[41]
[41] Submissions in Opposition to Matter Being Taken Off the Inactive Cases List dated 20 April 2023, Magistrates Court File, page 6.
Mr Love then appealed the District Court's dismissal of his appeal to the Court of Appeal. The details of that appeal were not put before the learned magistrate but he was aware of the appeal. The Appellant's Submissions assert that the appeal was lodged on 9 February 2022 and discontinued on 2 May 2022. A letter from the Court of Appeal attached to the First Appeal Affidavit referred to the appeal having been lodged on 23 December 2021.[42]
The Magistrates Court Proceedings continue
[42] First Appeal Affidavit, page 5.
On 6 September 2021, the Magistrates Court Proceedings were listed for a Pre-Trial Conference on 5 October 2021.[43]
[43] Magistrates Court File, page 145.
On 5 October 2021, the Pre-Trial Conference was adjourned to 11.00 am on 11 November 2021. A self-executing order was made providing for the entry of judgment against Safari Charters if it did not appear at the adjourned Pre-Trial Conference.[44]
[44] Magistrates Court File, page 143.
The Pre-Trial Conference did not resolve the Magistrates Court Proceedings. On 11 November 2021, orders were made that the parties provide their unavailable dates by 25 November 2021 and the proceedings be adjourned to a Status Conference on a date to be fixed.[45]
[45] Magistrates Court File, page 140.
No further procedural steps were taken in the Magistrates Court Proceedings in 2021 or for most of 2022.
Notice given of the case becoming inactive
On 25 November 2022, a notice was given by the Magistrates Court indicating that the Magistrates Court Proceedings had become inactive as no procedural step had been taken for 12 months (Inactive Case Notice).[46]
First Reactivation Application
[46] Magistrates Court File, page 134.
As mentioned, the First Reactivation Application was made on 7 December 2022.[47]
[47] Magistrates Court File, pages 131 - 133.
The First Reactivation Application was supported by an affidavit made by Mr Love.[48] The affidavit was only one page. It referred to the cost order made following the discontinuance of the Previous Magistrates Court Proceedings, said that the learned magistrate had said that those costs should be paid prior to the trial or before proceeding with the Magistrates Court Proceedings and that Safari Charters was only now proceeding with having those costs assessed.
[48] Magistrates Court File, pages 129 - 130.
On 13 December 2022, the Magistrates Court dismissed the First Reactivation Application. The orders made gave the following reasons for doing so:
(a)the application was not suitable for ex parte disposition;
(b)rule 109(3) of the Rules required conferral prior to the making of the application and there was no evidence of such conferral; and
(c)in any event the affidavit filed in support of the application failed to set out any proper basis to reactivate the case and failed to explain the delay in progressing the case and that it would now be progressed in a timely manner.[49]
Second Reactivation Application
[49] Magistrates Court File, pages 127 - 128.
As mentioned, the Second Reactivation Application was made on 23 December 2022.[50]
[50] Magistrates Court File, pages 124 - 126.
This was also supported by an affidavit of Mr Love.[51] This affidavit was also only one page. In this affidavit Mr Love said that the costs had now been assessed at $8,000.00 so he was now clear to proceed.
[51] Magistrates Court File, page 123.
The Second Reactivation Application was set down for hearing on 24 February 2023.[52]
The hearing on 24 February 2023
[52] Magistrates Court File, page 118.
Both Mr Love and Mr Dodds represented themselves at the hearing on 24 February 2023.
At the outset of the hearing the learned magistrate raised with Mr Dodds whether he wished to file any affidavit material in response to the application.[53] In the course of doing so he explained why he had refused the Second Reactivation Application. This included the learned magistrate identifying the fact that the affidavit material filed by Mr Love failed to explain the failure to progress the matter previously and that it will be progressed if the claim was reactivated.[54]
[53] Magistrates Court File, page 291.
[54] Magistrates Court File, page 289, final par.
The learned magistrate then raised with Mr Love the fact he was concerned that Mr Love's affidavit did not address the matters that it needed to address.[55] Mr Love began addressing the learned magistrate but the learned magistrate raised with him that he would not accept evidence from the bar table.[56] Ultimately, Mr Love indicated that he did wish to file an additional affidavit.[57]
[55] Magistrates Court File, page 291, sixth par.
[56] Magistrates Court File, pages 291 - 296.
[57] Magistrates Court File, pages 297 - 300.
The learned magistrate indicated that he would allow Mr Love a final opportunity to file an affidavit and he would not take into account additional facts that were not in that affidavit.[58] He again explained the matters that needed to be addressed in the affidavit.[59] This included the following exchange:[60]
[58] Magistrates Court File, pages 297 - 300.
[59] Magistrates Court File, pages 297 - 300.
[60] Magistrates Court File, page 300.
HIS HONOUR: No, I don't want the whole case put down. And again, you keep on saying I want this. I'm saying it's a matter for you. I've told you the two things that need to be addressed.
LOVE, MR: Yes.
HIS HONOUR: That is to say you need to explain in affidavit why the current proceedings fell in a hole and nothing happened for over a year.
LOVE, MR: Okay.
HIS HONOUR: And you need to explain how and demonstrate - not by just saying it's going to progress - you need to demonstrate how the matter is going to be progressed. If you don't do that again in the next affidavit, that's your problem. I've told you that in writing; I've told you that again now. You choose what you put in the affidavit, but those are the two things you need to satisfy me of. Or you need to show me a good reason to reactivate the matter by reference to the facts. I will give you till 3 March to do that. What else do you want to tell me?
LOVE, MR: Nothing, sir, except the fact that I thought that was in the affidavit. The affidavit was - - -
HIS HONOUR: Okay. Well, if you don't want to put another affidavit on, that's fine.
LOVE, MR: I will do.
HIS HONOUR: I'm not going to force you to do anything. But if you want to, you can…
The learned magistrate also raised with Mr Love that if Mr Love's application to reactivate the Magistrates Court Proceedings was successful, the defendant might be likely to reagitate their stay application. He said:[61]
HIS HONOUR: Know that whatever happens with your application - let's say you succeed - Mr Dodds is going to instruct his lawyer, most likely, to apply for a stay of the current proceedings on the basis that you haven't paid the previous costs order, so you shouldn't be allowed to progress the current proceedings. So have a think about sorting that costs order out because that might be another problem.
[61] Magistrates Court File, page 306.
On 24 February 2023, the learned magistrate made orders that:
(a)the claimants have leave to lodge and serve any further affidavit;
(b)the time for the defendant to lodge and serve any response to the claimants' application is extended to 31 March 2023; and
(c)the claimants' application was adjourned to a special appointment on 21 April 2023.[62]
The parties file further documents
[62] Magistrates Court File, page 116.
On 3 March 2023, Mr Love filed a further affidavit.[63] This affidavit was four pages long, although one page was a cover page. The affidavit referred to:
(a)the circumstances in which the Previous Magistrates Court Proceedings had been discontinued and the order for costs made;
(b)discussions with Mr Zwetsloot about the amount of costs being claimed;
(c)Mr Zwetsloot not having appeared at the hearing on 24 February 2023, referred to attempts to contact him and alleged 'conspiracy and lies';
(d)Mr Love wishing Mr Zwetsloot to confirm that on 4 May 2021 the learned magistrate said that Mr Love had two options in the Previous Magistrates Court Proceedings to continue and risk the entry of judgment or discontinue the claims;
(e)the time taken in having the costs of the Previous Magistrates Court Proceedings assessed and asserted that this was an effort to delay the progress of the Magistrates Court Proceedings; and
(f)his willingness to progress the Magistrates Court Proceedings.
[63] Magistrates Court File, pages 112 - 115.
On 4 April 2023, Safari Charters filed a response to the claimants' application opposing the reactivation of the Magistrates Court Proceedings[64] and an affidavit.[65]
[64] Magistrates Court File, pages 67 - 69.
[65] Magistrates Court File, pages 19 - 66.
On 17 April 2023, Mr Love filed a further affidavit.[66] This affidavit:
(a)again referred to the cost order made in the Previous Magistrates Court Proceedings and said that he was told that any new proceedings could not proceed until those costs were paid;[67]
(b)referred to the Stay and Security Application and said that that application had been withdrawn on 27 August 2021 and claimed that the learned magistrate assured Mr Zwetsloot that the Magistrates Court Proceedings could not proceed until these costs had been paid;[68]
(c)claimed that Safari Charters then chose not to lodge a bill of costs solely to delay the claim and the delay was therefore due to the conduct of Safari Charters;[69]
(d)complained about comments made by Mr Zwetsloot to the District Court;[70]
(e)said that he had not requested any adjournments;[71]
(f)said Mr Love had told Mr Zwetsloot that he had $8,000.00 to pay the costs order;[72] and
(g)said Mr Love was ready, willing and able to proceed with the Magistrates Court Proceedings.[73]
[66] Magistrates Court File, pages 15 - 17.
[67] Magistrates Court File, page 16, par 1.
[68] Magistrates Court File, page 16, pars 2 - 4.
[69] Magistrates Court File, page 16, pars 6 - 7.
[70] Magistrates Court File, page 17, par 9.
[71] Magistrates Court File, page 17, pars 11 - 12.
[72] Magistrates Court File, page 17, par 13.
[73] Magistrates Court File, page 17, par 14.
On 20 April 2023, Safari Charters filed written submissions.[74]
The hearing on 21 April 2023
[74] Magistrates Court File, pages 3 - 14.
Mr Love again represented himself at the hearing on 21 April 2023. Mr Dodds was represented by a lawyer, Mr Cooper.
The learned magistrate heard from Mr Love as to why the Second Reactivation Application should be allowed. During the course of Mr Love's submissions, the learned magistrate put various relevant matters to him to allow him to respond.[75]
[75] Magistrates Court File, pages 251 - 269.
The learned magistrate then heard from Mr Cooper.[76] He then allowed Mr Love to reply.[77]
[76] Magistrates Court File, pages 270 - 271.
[77] Magistrates Court File, pages 271 - 275.
The learned magistrate then gave ex tempore reasons for dismissing the Second Reactivation Application.[78] The parts of those reasons that are relevant to the grounds of appeal are considered below in the context of consideration of the grounds of appeal.
[78] Magistrates Court File, pages 276 - 281.
Grounds of appeal
The Notice of Appeal identifies three grounds of appeal:
(a)Magistrate Crawford order (Ground 1);
(b)Procedural active in District and Supreme Courts in 2022 (Ground 2); and
(c)Dodds refused discussion - no money from him (Ground 3).
The Appellant's Submissions address five grounds of appeal, rather than three grounds of appeal. I have proceeded on the basis that the grounds of appeal are those set out in the Notice of Appeal. I have still considered the matters raised in the Appellant's Submissions but I have done so by reference to the three grounds in the Notice of Appeal.
Ground 1
Mr Love's submissions
The Notice of Appeal states that Ground 1 is 'Magistrate Crawford order'. The Appellant's Submissions describe Ground 1 as being that an order that Mr Love had failed to meet the requirement of instruction of the learned magistrate as to the conduct of the Magistrates Court Proceedings.
The Appellant's Submissions then assert that on 14 May 2021 the learned magistrate told Mr Love that if he discontinued the Previous Magistrates Court Proceedings, he would not be permitted to proceed with the prosecution of the new proceedings until he had resolved the costs order that had been made in relation to the Previous Magistrates Court Proceedings. The submissions then refer to the order made in the Previous Magistrates Court Proceedings to the effect that Mr Love was to pay the defendant's costs of those proceedings to be assessed if not agreed.
The Appellant's Submissions addressing 'Ground 2', 'Ground 3' and 'Ground 4' also seem to relate to Ground 1 in the Notice of Appeal.
The Appellant's Submissions on 'Ground 2' referred to the letter sent by Mr Zwetsloot on 17 May 2021 and to the part of the letter that suggested that the learned magistrate had indicated that the Magistrates Court Proceedings could not proceed until the costs of the Previous Magistrates Court Proceedings had been paid. The submissions then refer to Mr Zwetsloot and says that he had used the threat of a claim for costs as a weapon.
The Appellant's Submissions on 'Ground 3' refer to the hearing before the learned magistrate on 27 August 2021 and a claim made by Mr Zwetsloot for the Stay and Security Application and the fact the application was withdrawn.
Mr Love's oral submissions also referred to Mr Zwetsloot's letter dated 17 May 2021. Mr Love suggested that the learned magistrate had overlooked this letter.[79] He also referred to asking Mr Zwetsloot to provide a witness statement and to the learned magistrate saying that he did not have any evidence.[80]
[79] ts 57 - ts 58, ts 74.
[80] ts 59.
In his oral submissions Mr Love then referred to submissions filed in the Previous Magistrates Court Proceedings on 31 April 2020 concerning costs, as well as to the affidavit filed in support of the Stay and Security Application.[81] Mr Love also referred to the fact that Safari Charters had withdrawn the Stay and Security Application before the learned magistrate.[82]
[81] ts 60, ts 73 - ts 75.
[82] ts 79.
The Appellant's Submissions on 'Ground 4' say that a conclusion that the claimant has not actively taken steps to bring the claim to a hearing was not correct as a Bill of Costs was not submitted to the Magistrates Court and not assessed until 20 December 2022.
In his oral submissions, Mr Love referred to the fact that these costs had now been paid.[83]
Disposition
[83] ts 84.
To the extent that Mr Love is asserting that the learned magistrate erred by overlooking Mr Zwetsloot's 17 May 2021 letter, such a contention has no merit. The learned magistrate expressly referred to that letter in the reasons he gave for dismissing the Second Reactivation Application.
The learned magistrate was not prepared to accept Mr Love's explanation that he did not progress the Magistrates Court Proceedings because he thought he must pay the costs of the Previous Magistrates Court Proceedings before doing so. The learned magistrate considered it plain that Mr Love appreciated he could take steps in the Magistrates Court Proceedings because he continued to progress those proceedings despite the fact that he had not paid the relevant costs.
The learned magistrate said:[84]
The first (indistinct) I would make in relation to that is (a) the claimant has failed to explain the delay in progressing the claim from the lodgement of the statement of defence until the matter became inactive. The matters that he spoke about don't impinge on that. They don't impact that unexplained delay and I will expand upon that in a moment. One of the things he said was he didn't progress the matter because he was told he couldn't progress the proceedings until he paid the previous costs order.
He was told that in a letter from Mr Zwetsloot on 17 May 2021, but he has advanced these proceedings since that date. He made an application for a default judgment. He filed a statement of claim. He appealed the registrar's refusal to grant - in fact, he did a lot of things. So that's not an explanation. In fact, there is no explanation for what happened since the lodgement of the statement of defence where he just did nothing to advance the matter. I've given him every opportunity as in person litigant to lodge a further affidavit. The initial affidavit was deficient.
He lodged a further affidavit. That further affidavit doesn't satisfy me, just doesn't make out any explanation to account for that failure to advance the matter for a period of a year. He suggests in relation to the costs that he was under a misapprehension. As I mentioned, that misapprehension makes no sense and is inconsistent with what his own actions say that he was under no misapprehension. To expand upon that, the two subpoints I would make are there is no bar to advancing the proceedings. There was no bar to advancing the proceedings by reason of his failure to pay the previous costs order.
I then alluded to the fact in the previous proceedings that in the - and in these proceedings that if he didn't pay the costs order, that might be a proper basis for the defendant to seek security for costs and if the security for costs were not paid, including the payment of the previous costs order, then there might be an order for a stay, but no stay was made. He knew that and he progressed the matter. He just didn't do anything for a year after having progressed the matter for some unexplained reason.
In that regard, with respect to the potential application that could have been lodged for a stay, that would have been pursuant to rule 94C, sub (g) of the Magistrates Court (Civil Proceedings) Rules which provides a factor is that if the claim is in default in respect of any costs ordered to be paid by the claimant of any proceedings previously brought by the claimant against the same defendant or another defendant or substantially the same course of action or in relation to the same subject matter. There was no application successfully made. There was no order made for a stay and he knew that that was the case as he continued to progress the matter until the filing of the statement of defence when he just for some reason didn't progress it.
[84] Magistrates Court File, pages 276 - 277.
To the extent that it is being alleged that the learned magistrate made some factual error in overlooking the matters that Mr Love says are relevant, such a contention has no merit. It may be seen from the learned magistrate's reasons that he was cognisant of those matters.
Nor is it evident to me that there is any error in the learned magistrate's reasoning. I agree that Mr Love's assertion that he was acting under a misapprehension is implausible.
As the learned magistrate observed, Mr Love took active steps in the Magistrates Court Proceedings until the end of 2021. This is plainly inconsistent with Mr Love acting under the asserted misapprehension. This inconsistency was not explained by Mr Love even though the learned magistrate raised the issue with Mr Love directly. Mr Love simply denied that he had been progressing the Magistrates Court Proceedings, despite the fact that he had.[85]
[85] Magistrates Court File, pages 267 - 269.
Further, the making and the withdrawal of the Stay and Security Application made it plain that there was no stay in place. Three observations may be made.
First, Mr Zwetsloot's 17 May letter did not assert that the Magistrates Court Proceedings were stayed, as Mr Love at times seemed to suggest. Rather, it asked Mr Love to discontinue the application he was pursuing if the costs of the Previous Magistrates Court Proceedings were not paid. That letter said:[86]
As stated by the Magistrate at the last court date in the now finalised proceedings, any future claims by you will not be able to proceed until such time as you have resolved the costs issues between yourself and our client.
We can confirm that we have seen that you have filed a new application in the Magistrates Court without resolving the current costs matter between yourself and our client.
We request that you immediately discontinue your current application until the cost issue between yourself and our client has been resolved.
We can confirm that in the event that you do not discontinue your current application before the Magistrates Court, and we are required to attend court in this matter, we will be seeking further costs from you on an indemnity basis, and will be vigilantly pursuing our client's costs against you.
We can confirm that we will be seeking that the court, in any future litigation commenced by you, secure cost prior to the commencement of any further proceedings.
(emphasis added)
[86] Magistrates Court File, page 207.
If the Magistrates Court Proceedings were stayed, then there would have been no need to ask Mr Love to discontinue his application. The letter would have said that Mr Love could not make that application because the Magistrates Court Proceedings were stayed.
Further, if Mr Love genuinely thought that Mr Zwetsloot's letter was reminding him that the Magistrates Court Proceedings were already stayed, it would be expected that he would have acceded to the request made. Instead, Mr Love continued to progress the Magistrates Court Proceedings. On 20 July 2021, Mr Love applied for default judgment.[87]
[87] Magistrates Court File, page 178.
Secondly, it was necessary for Safari Charters to make the Stay and Security Application. A stay application would have been unnecessary if the Magistrates Court Proceedings were already stayed. Even if Mr Love was labouring under some misapprehension (which I doubt), the fact that it was necessary to make the application would have revealed that there was no stay then in place.
Thirdly, the Stay and Security Application was then withdrawn on 27 August 2021. Mr Love was at the hearing on that day and knew the Stay and Security Application had been withdrawn.
The assertion[88] made by Mr Love that the learned magistrate assured Mr Zwetsloot that the Magistrates Court Proceedings could not proceed until the costs of the Previous Magistrates Court Proceedings is baseless. I have reviewed the transcript and no such assurance was given. But the fact that Mr Love felt compelled to assert that such assurance was given is telling. Absent such an assurance, it would have been abundantly clear from the fact that the Stay and Security Application had been withdrawn, that there was no stay in place. No assurance was given and it was abundantly clear.
[88] Magistrates Court File, page 16, pars 2 - 4.
In my view, there is no merit in Ground 1.
Ground 2
Mr Love's submissions
Ground 2 is 'Procedural active in District and Supreme Courts in 2022'.
The Appellant's Submissions on 'Ground 5' and 'Ground 6', seem to relate to Ground 2 in the Notice of Appeal.
The Appellant's Submissions on 'Ground 5' say that during the period Mr Love had lodged an application with the District Court of Western Australia (APP 65 of 2021) over the failure of the defendant to respond with serving a Defence and it was the order of Whitby DCJ (as she then was) that even if they had failed to serve such defence, Mr Love was told by the rejection of the default order on 21 July 2021 to the claim of 7 May 2021 and as such it was a discretionary right of the court.
The Appellant's Submissions on 'Ground 6' say that Mr Love appealed Whitby DCJ's decision (CACV 121 of 2021) to the Supreme Court of Western Australia on 9 February 2022. The submissions say that this appeal was discontinued on 2 May 2022.
In oral submissions, Mr Love said that the learned magistrate was wrong in saying that he did not proceed with the Magistrates Court Proceedings and he referred to the appeals he had made.[89]
Disposition
[89] ts 80 - ts 84.
The learned magistrate took into account the fact that Mr Love had made the appeals he refers to.[90] The learned magistrate considered that none of the appeals were an explanation for Mr Love's failure to advance the Magistrates Court Proceedings. In this regard, the learned magistrate noted that the appeal to the District Court was dismissed on 17 December 2021 and he noted there was no explanation for why nothing was done after the appeal had been resolved.[91]
[90] Magistrates Court File, pages 277 - 278.
[91] Magistrates Court File, page 278.
To the extent that it is being suggested that the learned magistrate made an error of fact and overlooked the fact that Mr Love appealed, there is no merit to such a contention. It is evident from the learned magistrate's reasons that he considered the evidence about the appeals before him.
Nor is it evident to me that there is any error in the learned magistrate's reasoning.
Mr Love says that his appeal to the Court of Appeal was discontinued at the beginning of May 2022. Even if this is true, it was almost six months between the dismissal of the Magistrates Court Proceedings and 25 November 2022 when the Magistrates Court Proceedings became inactive.
In any event, the fact that Mr Love had appealed did not prevent him from progressing the Magistrates Court Proceedings. A decision on the part of Mr Love not to progress those proceedings pending the outcome of any appeal is not a satisfactory explanation for the delay.
In my view, there is no merit in Ground 2.
Ground 3
Mr Love's submissions
Ground 3 is 'Dodds refused discussion - no money from him'.
The Appellant's Submissions refer to a discussion that he had with Mr Zwetsloot before the hearing of the Stay and Security Application. The submissions then refer to comments made by the learned magistrate that costs of the Previous Magistrates Court Proceedings were yet to be assessed.
This ground of appeal has not otherwise obviously been addressed by Mr Love.
Disposition
Precisely what is being alleged by Ground 3 is obscure.
In giving his reasons, the learned magistrate did refer to the lack of conferral but described this as not being a crucial matter as conferral could be waived.[92] Even if Mr Dodds refused to speak to Mr Love, this does not appear to be a matter of any significance.
[92] Magistrates Court File, page 280.
It is not apparent to me that Ground 3 has any merit.
Other matters
During the course of his submissions, Mr Love raised various other matters. Although those matters do not seem to relate to any ground of appeal, given that Mr Love is self-represented, I have also considered whether any of these matters demonstrate an error on the part of the learned magistrate.
Procedural fairness
In oral submissions, Mr Love summarised his case as being:[93]
… It's natural justice that's here that they're using a - a ploy that I didn't pursue the action any further because I didn't take any notice of it. And after six months, which I was not given notice of, the only notice I was ever given of was the notice that it was put on the file and I had to make an application to the court to regenerate that file and that I've done.
And on both occasions Magistrate Crawford has rejected that and that's why I'm here today because - and that's why I'm saying that in these documents that's the reason.
[93] ts 72.
The suggestion that Mr Love was denied natural justice because Safari Charters did not have its costs of the Previous Magistrates Court Proceedings assessed is without merit. The failure to assess the costs did not prevent Mr Love from progressing the Magistrates Court Proceedings and he progressed those proceedings until the end of 2021.
More generally, having reviewed the transcripts of the hearings before the learned magistrate available to me, it is not apparent that Mr Love was denied natural justice or procedural fairness.
As the learned magistrate observed, he afforded Mr Love latitude because he is an in-person litigant.[94] The learned magistrate repeatedly explained the nature of the relevant procedure to Mr Love and the matters he needed to address.
[94] Magistrates Court File, page 279, second par.
The learned magistrate permitted Mr Love to make two applications to reactivate the Magistrates Court Proceedings. When the learned magistrate dismissed the First Reactivation Application, he gave written reasons to assist Mr Love frame a more appropriate application.[95]
[95] Magistrates Court File, page 279, fifth par.
At the hearing on 24 February 2023, the learned magistrate explained the matters that Mr Love needed to address and permitted him a further opportunity to file material. Mr Love availed himself of that opportunity.
At the hearing on 21 April 2021, the learned magistrate allowed Mr Love the opportunity to put his position to the learned magistrate and the learned magistrate raised with him the matters that the learned magistrate considered necessary to permit him to respond.
Willingness to progress the proceedings
In the affidavit that Mr Love filed on 17 April 2023, Mr Love said that he was ready, willing and able to proceed with the Magistrates Court Proceedings.[96] At the hearing of this appeal he said that he would immediately apply for a hearing date tomorrow and he was 'ready to go'.[97]
[96] Magistrates Court File, page 17, par 14.
[97] ts 93, fifth par.
With regard to Mr Love's evidence that he would progress the proceedings, the learned magistrate observed that this was mere assertion that was contradicted by the history of the proceedings:[98]
The next main point that I would make here as point (b) would be the claimant has failed to demonstrate other than by mere assertion that the claim will now be advanced in a timely manner. He repeats an assertion that it will be advanced but provides no details as to how it might be advanced, what steps he has taken to prepare to advance, what steps the court might take to advance it. There is none of that detail. It's just an assertion, 'I will advance it'.
The difficulty I have with that assertion beyond what I've said in the absence of specifics is this. The history of the matter demonstrates and does not inspire any confidence in that assertion. By way of just two examples, he hasn't paid that costs order as mentioned and also he ignored and didn't respond to the order made by Registrar Truelle for the provision of unavailable dates, that order made on 11 November 2021. The actual rule is 95E of the Magistrates Court (Civil Proceedings) Rules and speaks under subsection (2) that the court may order - shows the court has a discretion that an inactive case is no longer inactive (a) if it has satisfied the court - that the case, I should say, will be conducted in a timely way or for any other good reason. No other good reason or indeed any reason which satisfies me has been advanced.
The matters advanced are mere assertion at odds with the history of the matter. …
[98] Magistrates Court File, page 278.
The Second Appeal Affidavit suggests that the costs have now been paid but the point remains that there was delay in paying those costs.
I also agree with the learned magistrate's conclusion that Mr Love's claim that he will now progress the proceedings is mere assertion. Mr Love's evidence does not address the remaining procedural steps required to progress this matter to trial, or his capacity to address these steps in a timely fashion. For example, the material before me does not address whether disclosure has been given as required by pt 7 of the Rules.
I note that prior to the Magistrates Court Proceedings becoming inactive, they had been listed for a Status Conference at which programming orders might have been made for the necessary procedural steps to be completed for the matters to be ready for trial.
In such circumstances, I am far from confident that the Magistrates Court Proceedings would be capable of being listed for trial tomorrow. Nor am I confident that Mr Love has given meaningful consideration to what would be required to proceed to trial, or his capacity to address those matters in a timely fashion.
Other irrelevant matters
The Appellant's Submissions also refer to various other matters. I have considered these matters and they seem irrelevant to me.
The Appellant's Submissions assert that the learned magistrate suggested that Mr Love had not attempted to resolve his claim and the submissions refer to various matters that Mr Love says show this is not correct. Given that the learned magistrate's reasons for refusing the relevant application do not seem to place any reliance on any failure on the part of Mr Love to attempt to resolve matters, these submissions seem irrelevant.
The Appellant's Submissions refer to the fact that Safari Charters has changed solicitors and alleged that Mr Dodds verbally abused Mr Love. Neither of these matters have any relevance.
The consequence of the appeal not being expedited
Finally, I note that at no point does Mr Love seem to have raised with the District Court the need for any expedition of this appeal. As a consequence, the appeal seems to have progressed at the usual pace of appeals to this court.
Rule 95F(1) of the Rules provides that a case that is an inactive case for six continuous months is taken to be dismissed. As I have mentioned, in Geraty v Kneale,[99] Vernon DCJ observed that once proceedings are dismissed, the Rules contain no power to reinstate proceedings.
[99] Geraty v Kneale [3].
The Magistrates Court Proceedings became inactive on 25 November 2022.[100] It seems to me therefore that the Magistrates Court Proceedings were dismissed on 25 June 2023 by operation of r 95F(1) of the Rules, before the day on which this appeal was listed for hearing.
[100] Magistrates Court File, pages 134 - 135.
In such circumstances, whether the present appeal has any utility might be doubted. However, in deference to the submissions made, I have proceeded to determine the appeal.
As the appeal was unsuccessful, Mr Love's failure to draw to the District Court's attention the fact that the appeal required expedition ultimately makes no substantive difference. In the future, however, other litigants in similar circumstances may need to raise any need for expedition with the District Court. Otherwise, there may be a risk that the hearing of the appeal might be listed after the proceedings in the Magistrates Court have been automatically dismissed by operation of r 95F(1).
Conclusion
It is not apparent to me that the learned magistrate made any error.
I will dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate to Judge Palmer
20 OCTOBER 2023
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