Mansell v S C Nigam & Co - [2014] WASC 54

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MANSELL -v- S C NIGAM & CO [2014] WASC 54

CORAM: JENKINS J

HEARD: 17 FEBRUARY 2014

DELIVERED : 17 FEBRUARY 2014

PUBLISHED : 27 FEBRUARY 2014

FILE NO/S: CIV 1053 of 2014

BETWEEN: CAMERON JAMES MANSELL
Plaintiff
AND
S C NIGAM & CO
Defendant

Catchwords:

Review order - Magistrates Court Act 2004 (WA), s 36 - Application for leave of a judge to file application where registrar had formed view that application was an abuse of process - Application for review order has no reasonable prospects of success - Application for an extension of time within which to appeal to District Court already heard and dismissed - Appeal from District Court decision to Court of Appeal dismissed - Matters the subject of the proposed review have already been litigated

Legislation:

Magistrates Court Act 2004 (WA), s 36

Result:

Application for leave to file application for review dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr S V Forbes

Solicitors:

Plaintiff: In person
Defendant: S C Nigam & Co

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

Nil
JENKINS J: (These reasons were delivered orally and have been edited from transcript).

This is an application by originating motion dated 7 January 2014 by Mr Mansell for an order that he have leave to file an originating motion seeking a review of a magistrate's decision dated 20 June 2011. That decision was a decision of a magistrate sitting in the Magistrates Court at Perth, to give judgment to S C Nigam & Co in respect of outstanding legal fees owed by Mr Mansell to that firm.
At the hearing before the magistrate, both parties were represented by counsel. Mr Mansell was not present, but he was represented by Mr Garnsworthy of counsel.
The application before me today is supported by the affidavit of Mr Mansell sworn 31 January 2014 and also by his affidavit sworn 8 January 2014. I have also received from Mr Forbes, counsel for S C Nigam & Co, a transcript of proceedings before Birmingham DCJ in the District Court of 20 March 2013, which is an annexure to Mr Forbes' affidavit of 18 June 2013, filed in a related appeal.
Mr Forbes has also handed up to me a copy of a letter from the Supreme Court of Western Australia to Mr Mansell and to Mr Forbes dated 2 September 2013. That letter attaches a certificate of conclusion of civil appeal in respect of the related appeal.
I asked Mr Mansell why he was seeking leave to file the originating motion seeking a review of the magistrate's decision. Mr Mansell advised me that he had sought to file an application to review the magistrate's decision, pursuant to the Magistrates Court Act 2004 (WA) s 36. He told me that that application had been refused by a registrar, if not the principal registrar. He has not provided any written document to me about that and I have no written document relating to that refusal.
Mr Mansell said that he believes that it had been refused on the basis that it was an abuse of process.[1] Ordinarily, a person does not need leave of the court to file an application pursuant to the Magistrates Court Act s 36. I am mindful that if an application is in order then prima facie leave should be granted to file it. This hearing today, however, has enabled me to look not only at the form of the application, but also at the substance of it.
[1] On 11 September 2013 the principal registrar refused to permit Mr Mansell to file the application for review on the basis that it was an abuse of process pursuant to the Rules of the Supreme Court 1971 (WA) O 67 r 5. Thus, Mr Mansell was required to obtain the leave of a judge to file the application.
It is important to note that an application under s 36 for a review of a magistrate's decision is not a merits‑based review. As I have explained to Mr Mansell, it is analogous to an application for one of the writs of mandamus prohibition or certiorari. In this case, given that the Magistrates Court has already heard the matter, the analogous writ would be a writ of certiorari. Section 36(1)(c) of the Magistrates Court Act says:
(1)If a person is or would be aggrieved by one or more of the following -
…
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
So an application for a review order in these circumstances can only be made on a ground that the act - in this case the decision of the magistrate - was done or made without jurisdictional power or is an abuse of process, or on any ground that might have justified an order of certiorari. Leave should not be granted to file the application by Mr Mansell unless it appears that he is alleging one of those grounds and that there is some basis for the allegation contained in the ground.
In determining this matter, I have had regard to what is in his affidavit and also to what he has said to me today. In essence, he has said that the magistrate's decision was an abuse of process and that it was unjustifiably oppressive and unfair. He says that it was unfair for the magistrate to proceed to summary judgment when he was not present at the hearing because he was otherwise fully occupied in defending criminal proceedings in this court and in making an application for bail to this court.
Additionally, Mr Mansell says that the hearing was unfair in circumstances where he had not only a legitimate defence to the action brought against him by S C Nigam & Co, but also there was a legitimate dispute between him and S C Nigam & Co in regards to the subject matter of the action in the Magistrates Court. I will deal with each of those issues.
In some circumstances a decision will have been made or a hearing will have been held without jurisdiction or power or in excess of jurisdiction or power if it is done in the absence of one of the parties. However, in this case, Mr Mansell was represented by experienced counsel. There can be no argument in my view that there is an arguable ground for review that the hearing conducted before the magistrate was made without jurisdiction or power or in excess of jurisdictional power or, indeed, was an abuse of process on the basis that Mr Mansell was not present.
Next, in regards to the fact that Mr Mansell could not turn his attention to the matter because he was occupied with proceedings in this court, the position was that there was an affidavit filed by Mr Mansell in the Magistrates Court and he had counsel representing him in the Magistrates Court. My understanding is that it cannot be said that the magistrate erred refusing to adjourn the matter because there was no application to adjourn the hearing of the matter before the magistrate. Mr Mansell now says that his affidavit was inadequate because he was occupied with the other matters in this court. It is not a ground for an application for a review of a magistrate's decision, pursuant to the Magistrates Court Act s 36, that a party now feels that they inadequately put their case to the magistrate. Such an application, under s 36, would have no prospects of success.
For those reasons, I am not of the view that Mr Mansell should be given leave to use his preoccupation with matters in this court as a ground to seek a review of the magistrate's decision.
It is my analysis that the remainder of the matters that Mr Mansell has raised before me are matters going to the merits of the magistrate's decision. He has raised matters, such as the fact that there was only one costs agreement between him and S C Nigam & Co and that that did not cover all the costs sought in the magistrate's action. He has raised the fact that there were inherent flaws and express flaws in that first costs agreement, rendering that costs agreement void. He has raised the complaint that the costs claimed by S C Nigam & Co were neither covered by the first costs agreement or by his instructions to that firm. Those are but some of the matters that he has raised before me. Those matters are not allegations that the magistrate's decision was done or made without jurisdiction or power or that it was an abuse of process. Neither are they grounds that might have justified an order of certiorari. They are matters that go simply to the merits of the decision which was within the jurisdiction of the magistrate to make.
Consequently, it would not be proper for me to give leave to Mr Mansell to commence proceedings, pursuant to the Magistrates Court Act s 36, on those grounds. However, they are not the only reasons why I am not prepared to grant this application.
I have been advised by Mr Forbes today that the decision of the magistrate was subject to an appeal to the District Court. That appeal was made out of time. Mr Mansell's submission to me in that respect is that, therefore, it was not dealt with on its merits. However, I have before me Birmingham DCJ's decision in respect of the application to extend time within which to appeal. If it was not an application in those terms, it was nevertheless an application that dealt with the issue of whether the appeal should proceed out of time.
His Honour gave very full reasons for declining to permit the appeal to proceed to a hearing. He ultimately held that he would not be prepared to grant leave to extend time to Mr Mansell to appeal. His Honour in his reasons dealt with the merits of the proposed appeal. His Honour considered the issues which Mr Mansell has raised before me today. Mr Mansell's objections to the magistrate's decision have, in essence, not altered from the point in time in which Birmingham DCJ made his decision on 20 March 2013. His Honour, after considering the merits of the proposed grounds of appeal, said:
I'm not persuaded that the appeal - if leave was granted that the appeal has merit.
In my view, there does not appear to be an arguable case that summary judgment ought not to have been entered in relation to the material then before the magistrate. To overcome that position, it would have been necessary for the applicant to maintain that leave to adduce additional material should be granted on the hearing of the summary judgment application.
No application to adjourn to enable that to take place - or that matter to take place was sought, and the matter proceeded on the basis of the papers filed. In my view, the magistrate was correct in moving to judgment (ts 45).
His Honour's decision was the subject of a further appeal to the Court of Appeal in CACV 44 of 2013. Mr Mansell, who sought leave to appeal from his Honour's decision, was again out of time. He also failed to file the appellant's case within time. On 4 July 2013, Pullin JA made an order that the appeal be dismissed unless by 4.00 pm on 30 August 2013 Mr Mansell filed and served his appellant's case. Mr Mansell did not file his case and so the appeal was dismissed. On 2 September 2013, an acting Court of Appeal registrar completed the certificate of conclusion of civil appeal, which stated that:
The appellant, having failed to comply with the order of Pullin JA made on 4 July 2013, the appeal stands dismissed.
It seems to me, therefore, that whilst no substantive appeal from the magistrate's decision has been heard, such an appeal to the District Court was filed out of time. In declining to grant an extension of time within which to appeal, Birmingham DCJ gave full reasons for not being prepared to grant an extension of time. Included in those reasons was a consideration of the merits of the appeal. He found that the appeal had no merits. Those are the same grounds that Mr Mansell wishes to pursue in this application under s 36. Birmingham DCJ's decision was again the subject of an appeal. Mr Mansell failed to comply with the time limits imposed on him by the Court of Appeal.
There is no doubt that there is an interest in the finality of these proceedings. There is a public interest and an interest in justice in these proceedings coming to an end and not being the subject of repeated fruitless attempts to have them reviewed. I am very mindful of the fact that Mr Mansell is in custody and that that places difficulties on him, however, having regard to all of these factors and to the fact that the magistrate's decision itself was made in June 2011, and so this application for review is made very late in the piece, I am not prepared to grant leave to Mr Mansell to file an originating motion seeking a review of the magistrate's decision of 20 June 2011.