Milentis v Howard I Evans as Executor of the Estate of Demetrius Mitskinis
[2018] WADC 106
•24 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MILENTIS -v- HOWARD I EVANS as Executor of the Estate of DEMETRIUS MITSKINIS [2018] WADC 106
CORAM: BOWDEN DCJ
HEARD: 13 AUGUST 2018
DELIVERED : 24 AUGUST 2018
FILE NO/S: APP BUN 3 of 2017
BETWEEN: BASIL MILENTIS
Applicant
AND
HOWARD I EVANS as Executor of the Estate of DEMETRIUS MITSKINIS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MILLINGTON
File Number : BUN GCLM 300 OF 2016
Catchwords:
Appeal from Magistrates Court – Litigant in person - Extension of time within which to appeal - Lengthy delay - Appeal without merit
Legislation:
District Court Rules 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Result:
Application for extension of time within which to appeal refused
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr C Garvey |
Solicitors:
| Applicant | : | Not applicable |
| Respondent | : | Howard I Evans |
Case(s) referred to in decision(s):
Allen v Allen [2018] WADC 89
Allesch v Maunz [2000] HCA 40
Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd (rec and mgr apptd) (1993) 11 ACSR 1
Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Googe v Spoljaric [2017] WADC 99
Haller v Ayre [2005] QCA 224
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Leeder v The State of Western Australia [2008] WASCA 192
Love v The Queen (1983) 9 A Crim R 1
MacKenzie v Albany Finance Ltd [2003] WASC 100
MacKenzie v Albany Finance Ltd [2004] WASCA 301
Michael v The State of Western Australia [2007] WASCA 100
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Netglory Pty Ltd v Caratti [2013] WASC 364
Norton v Ellam (1837) 2 M & W 461; (1837) 150 ER 839
Ogilvie v Adams [1981] VR 1041
R v Gardiner [1981] Qd R 394
Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252
Simonsen v Legge [2010] WASCA 238
Smart v Prisoner Review Board (WA) [2012] WASC 48
The Stage Club Limited v Millers Hotels Proprietary Limited [1981] HCA 71; (1981) 150 CLR 535
Vakauta v Kelly (1988) 13 NSWLR 502
Young v Queensland Trustees Limited [1956] HCA 51; (1956) 99 CLR 560
BOWDEN DCJ:
This is an application for an extension of time within which to appeal from the decision of a magistrate made on 31 May 2017.
The basis of the action
The applicant, Mr Milentis, claims that in March 1981 he loaned his now deceased uncle, Demetrius Mitskinis, $10,000 in cash. Mr Milentis' evidence was that the loan was to be repaid within two years. The alleged loan was never repaid.
In September 2016 Mr Milentis commenced proceedings in the Bunbury Magistrates Court seeking the payment of $10,000 from the estate of his late uncle, a nominal interest payment and the payment of his costs.
On 31 May 2017, following a trial in the Bunbury Magistrates Court, Magistrate Millington dismissed the claim as he was not satisfied there was an agreement for the loan of $10,000.
Mr Milentis seeks to appeal this decision.
Appeals from the Magistrates Court
An appeal from the Magistrates Court is by way of a 'reconsideration of the evidence' before the Magistrates Court (District Court Rules 2004 (WA) (DCR) r 50(1), Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA)) and is therefore an appeal in the nature of a rehearing.
The court has a discretion to grant leave to admit additional evidence (MCCPA, s 40(4), s 40(5), DCR, r 50(2), r 50(3)). However, leave may only be given in 'exceptional circumstances': Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252.
To succeed on an appeal, the applicant must demonstrate a legal, factual or discretionary error by the magistrate: Allesch v Maunz [2000] HCA 40 [14], [23]. Where an appellant appeals against findings of fact, they must do more than merely show that an alternate finding was available on the facts. They must show that a factual error was made by the primary judge: Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369; Leeder v The State of Western Australia [2008] WASCA 192 [84].
If upon the facts a decision is found to be unreasonable or plainly unjust, an appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the magistrate: House v The King [1936] HCA 40; (1936) 55 CLR 499.
A finding of fact by a magistrate, based on the credibility of a witness, is not to be set aside because an appellant court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the magistrate's finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown that the magistrate 'has failed to use or has palpably misused his advantage', or has acted on evidence which was 'inconsistent with the facts incontrovertibly established by the evidence' or which was, 'glaringly improbable', or contrary to compelling inferences: Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 [21].
Self-represented litigants
Mr Milentis was self-represented at the hearing and on appeal. The respondent was legally represented at the hearing and appeal.
The principles relating to litigants in person were recently stated by Gething DCJ in Googe v Spoljaric [2017] WADC 99 [13] – [15]. These principles have been widely accepted (Allen v Allen [2018] WADC 89 (Glancy DCJ)) and can be briefly summarised as follows:
1.A litigant in person should be afforded some latitude and the documents in which he articulates his case should be approached with some flexibility: Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
2.The court needs to be careful to ensure that if he has a case it is not denied because of a poorly expressed document or submissions: Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J).
3.At the same time the court must ensure that any latitude given does not work an injustice to the other party: Glewv Frank Jasper Pty Ltd [2010] WASCA 87 [10].
The application to extend the time within which to appeal
The decision was delivered ex tempore by the magistrate on 31 May 2017.
The time within which Mr Milentis had to appeal was 21 days, that is, 21 June 2017. The appeal was filed on 22 December 2017, in excess of six months after the appropriate time.
Mr Milentis' affidavit in support of his extension of time was sworn on 23 February 2018. He refers to the impact of the tragic death of his wife on 4 May 2017. He also refers to an ongoing Family Court appeal and his desire to ensure his son's final year at school was as stable as possible. Mr Milentis deposed to his awareness of his right to appeal against the decision and says that because of all the other issues revolving around the lives of his son and himself he did not have the time to act within the timeframe.
In Simonsen v Legge [2010] WASCA 238, the Court of Appeal stated the relevant non exhaustive discretionary factors to consider when dealing with applications to extend time within which to appeal. The factors were specified as:
(i)the length of the delay;
(ii)the reason for the delay;
(iii)the prospects of the applicant succeeding in the appeal; and
(iv)the extent of any prejudice to the respondent.
The court stressed that the time for appealing would not be extended unless the proposed appeal has some prospects of success.
It is not the law that whenever an applicant demonstrates an arguable case or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension should be granted: Simonsen v Legge.
Length of delay
In this case the delay is almost six months.
The reason for the delay
Mr Milentis' affidavit deposes to the fact that he was aware of his right to appeal. The delay was not a result of any mistake by Mr Milentis but a result of his deliberate decision to prioritise other matters.
Mr Milentis advised, and I accept, from the bar table that the Family Court appeal was dealt with on 29 and 30 November 2017 and a decision delivered on 23 February 2018.
I accept that Mr Milentis suffered ongoing issues in relation to the death of his wife in May 2017 and I accept that his son was in Year 12 and he was anxious to provide a secure environment for his son's final year at school.
They are all matters that should be taken into account, but they still do not adequately explain why there was some six months elapsed from the date of the decision to the appeal being lodged. As there is no prospect of the appeal succeeding for the reasons set out below, I would not grant an extension of time to appeal.
Prospects of success
The prospects of success are dealt with below.
Extent of any prejudice to the respondent
The respondent does not suffer any prejudice other than its natural desire to complete the distribution of the estate.
After considering the lengthy delay and lack of merits of the appeal, I would not grant an extension of time within which to appeal.
The appeal
The appeal grounds can be generally grouped as follows;
1.The learned magistrate had a predetermined view.
2.The learned magistrate ignored the defendant's conduct.
3.The learned magistrate was biased against Mr Milentis.
4.The learned magistrate's decision was so unreasonable or plainly unjust, the court can infer there was a failure to properly exercise the discretion reposed in the magistrate.
5.The learned magistrate erred in law in that he tried the claim as if it was a breach of contract claim as opposed to an action on debt.
The first four grounds are my summary of the contents of Mr Milentis' grounds of appeal dated 23 December 2017. The fifth ground was an additional ground added by Mr Milentis at the hearing of the appeal. I grant leave to add that ground. Ironically it is that ground of appeal which demonstrates that even if the court was satisfied that a loan had been made, Mr Milentis' claim must fail as it is statute barred.
I will deal with the five grounds as I have grouped them and in so doing cover all the particulars given in the grounds of appeal dated 23 December 2017 (a) to (p).
The learned magistrate had a predetermined view
The argument being presented by Mr Milentis by pars (a) to (g) of his grounds of appeal are that the learned magistrate had a predetermined view.
Paragraphs (a) to (g) are as follows:
(a)Magistrate Mark Millington was fed a blatant lie by the defendant (Mr H Evans) in this matter as seen from lines 5 to 7 of page 3 of the transcripts.
(b)The defendant refers to a letter found in exhibit 14 of the evidence that was required of me (the appellant). Magistrate Millington did not refer to the said letter at that point of time.
(c)Thus Magistrate Millington in his haste to find against the appellant he completely misconstrued 'the facts and dollar figures' at hand. This error is found on page 3 of the trial transcripts – paragraph 6 (lines 9 to 21), 8 (lines 25 and 26) and paragraph 10 (lines 31 to 33).
(d)In misunderstanding the 'facts and dollar figures' that is, the central issue of contention, Magistrate Millington had, it seems (according to the transcripts) already determined the result against the 'appellant' as made clear in lines 31 to 33 (page 3).
(e)This central issue is further illustrated more precisely on page 27 (lines 11 to 31) where Magistrate Millington continues to avoid – so it seems – the central issue of the simple fact that my uncle did not have the financial capacity to buy any property any time anywhere without major financial assistance on top of the 11K.
(f)Magistrate Millington's assertion (lines 38 to 43) that the money owed was paid back is manifestly wrong, because Magistrate Millington did not want to heed the fact that my uncle clearly intended to reduce the stamp duty that would have been payable on 21,000 as compared with stamp duty on 12,000.
(g)It seems clear to me that Magistrate Millington was most adamant in his predetermined view (see back on page 3). This predetermined view becomes even more pronounced on pages 28 to 30 of the transcripts (especially page 29) where the matter of the will beneficiaries was raised and briefly discussed.
Mr Milentis based this ground on the discussions which occurred at ts 3 where the magistrate inquired as to whether the position was that $10,000 was lent to the late Mr Mitskinis to buy the house and $12,000 had been paid back in a roundabout way and asked Mr Milentis whether that was right. Mr Milentis replied, 'no'.
This discussion all occurred before the trial took place. It occurred in circumstances where the magistrate was asking the parties how long they thought the matter would take and was trying to work out an appropriate not before time so that he could do his other duties.
After the trial commenced a discussion occurred at ts 27 to ts 30 where his Honour pointed out to Mr Milentis during the course of his evidence that the fact that the certificate of title was issued in Mr Milentis' name does not in any shape or form show that he lent money to the late Mr Mitskinis; a proposition that Mr Milentis agreed with. That is a correct statement of both the law and facts and does not indicate any predetermined view of the matter.
His Honour also commented that the evidence showed that the property was then sold to the late Mr Mitskinis for $12,000 and this could lead to an inference that Mr Milentis received $12,000 for the property, being the repayment of the loan plus some interest. His Honour did not indicate that was the inference he was drawing, but commented that he thought it was an inference that could be drawn. In any event, his Honour did not draw that inference. The case was decided on other grounds. A passing comment on an inference that could be drawn, but ultimately was not drawn does not indicate any predetermined view of the matter.
The conversation then turned to Mr Milentis' statements that on two occasions his then lawyer, Mr Owens, asked the respondent's lawyers to seek the view of the Royal Flying Doctor (the principal beneficiary) and Mr Milentis had not seen any evidence that the request was complied with. His Honour correctly explained to Mr Milentis that the central issue was whether there had been an oral contract between himself and his uncle, that is, had there been an agreement for the money to be advanced by way of a loan and for it to be repaid. Explaining the issue to be determined to an unrepresented party does not indicate any predetermined view of the matter.
There is no merit in the ground that his Honour held a predetermined view.
The learned magistrate ignored the defendant's conduct
Paragraphs (h) and (i) of the grounds of appeal raise the issue that the learned magistrate ignored the defendant's conduct. Paragraphs (h) and (i) are as follows:
(h)The conduct of the defendant is raised (page 29 – lines 34 to 42) in what was a very important matter. Magistrate Millington seems to have dismissed the defendant's conduct as being irrelevant. It was in fact a means to settle the matter as the defendants were clearly intent on 'bleeding' the case for financial reasons. He did.
(i)The conduct of the defendant was extremely relevant to the outcome of this simple 'loan of $10,000' by a nephew to an uncle.
The conduct referred to is the assertion by Mr Milentis that on two occasions Mr Owens asked the defendant's lawyer, Mr Evans, if he had sought the view of the Royal Flying Doctor. Mr Milentis' complaint was that there had been no letter presented to the court or to Mr Owens or himself from the Royal Flying Doctor indicating their view.
As his Honour correctly pointed out at page 30 of the transcript, the Royal Flying Doctor were the beneficiaries of the Will. Their views as to whether the defendant should have accepted Mr Milentis' claim cannot assist with the central issue before his Honour. There was simply no proper basis for any letter from the Royal Flying Doctor to be brought before the court to determine the central issue. It was totally and utterly irrelevant.
There is no merit in this ground.
The learned magistrate was biased against Mr Milentis
Paragraphs (j) and (k) of the grounds of appeal in effect allege that the learned magistrate was biased against Mr Milentis. Paragraphs (j) and (k) are as follows:
(j)From page 32 (lines 1 to 3) Magistrate Millington's comments can be seen as a pro-defendant and an anti-appellant view, clearly lines 5 to 10 sum up very nicely the conduct of the defendant in which the defendant's money motives are clearly explained.
(k)Magistrate Millington should have understood that on 26/10/2016 the issue was decided and it is very rich of the 'defendant' to use the false excuse of a 'procedural matter' as a means to extend the issue in his account. The court should never have allowed this issue to be descended into a farce – which it did become on 31/05/2017.
The test to be applied in relation to the issue of bias is whether a fair‑minded lay observer may reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions the judicial officer is required to determine: Michael v The State of Western Australia [2007] WASCA 100.
The principle concerning apprehended bias gives effect to the requirement that justice should be done and be seen to be done. The requirement reflects the fundamental importance of the principle that the tribunal be both independent and impartial:
'If fair-minded observers unconnected with the litigation and even informed to the extent that the law presupposes will nevertheless be left with the impression that the trial judge was apparently bias a new trial still might have to be considered as a possibly. Justice must be seen to be done otherwise justice will not in fact be done: RPS v R (2000) 199 CLR 620.
The test is objective and is founded in the need for public confidence in the judiciary and it is not based upon the subjective assessment of one judicial officer's behaviour by another judicial officer.
The observer is taken to be reasonable and the judicial officer under observation is 'a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial': Vakauta v Kelly (1988) 13 NSWLR 502, 527.
The reasonableness of the apprehension of bias should be considered in the context of ordinary judicial practice. The apprehension of bias principle must be applied in accordance with the High Court decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337:
The apprehension of bias principle admits the possibly of human frailty. Its application is as diverse as human frailty. Its application requires two steps, first it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, the second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. It should be assumed that the lay observer will base his or her opinion on a fair assessment of the judge's conduct in the context of the whole of the trial (Michael [61]).
It is recognised that it will often be necessary particularly with self‑represented litigants for a trial judge to intervene to stop irrelevant matters being raised: Love v The Queen (1983) 9 A Crim R 1, 26; Michael v The State of Western Australia.
A judicial officer is also entitled to ask questions of a witness to clarify and test that evidence: R v Gardiner [1981] Qd R 394, 406; Michael v The State of Western Australia.
It is a possibly of bias as opposed to the probability of the bias that is the issue.
At ts 32 Mr Milentis referred to the fact that on 26 October 2016 he obtained default judgment in his favour.
The circumstances were that a pre-trial conference was held on 7 July 2016 in Bunbury. On that date the matter was adjourned to 18 August 2016 and the court granted liberty to the defendant's representatives to appear by telephone link.
On 18 August 2016 there were further orders made and the listing conference was adjourned to 26 October 2016, again the defendant's representative was given leave to appear by audio-link at that listing conference.
On 30 September 2016 the defendant's lawyers wrote to the court in relation to the conference of the 28th [sic] advising the court the writer (Mr Evans) would be in his Manjimup office.
On 26 October 2016 judgment was entered for Mr Milentis for $10,000 with costs to be assessed if not agreed.
The default judgment was set aside on 7 December 2016 upon the defendant's application.
In that application Mr Evans deposed to the fact that on 26 October 2016 he was in his office anticipating a call from the court as had occurred on previous occasions when leave had been granted for him to appear by telephone. Mr Evans received no call from the court but received a garbled call from Mr Milentis and then later a letter advising that judgment had been entered by default. He deposed that judgment ought not to have been entered by default as the court record clearly established that he had leave to attend by telephone and that the defendant knew this.
It is quite wrong to indicate, as Mr Milentis did in his oral submissions at the appeal, that the court had determined the matter on 26 October 2016. On that date judgment by default was entered in Mr Milentis' favour as the defendant did not attend the listing conference and it appears the court did not contact Mr Evans by phone. The court did not determine the case on its merits. Where default judgment is obtained as a result of the non-appearance of a party, the court rules permit an application to be made to set aside that default judgment. The court record reveals that the judgment was set aside by a magistrate other than Magistrate Millington.
There is absolutely no indication in any shape or form of any pro‑defendant or anti-appellant view by the learned magistrate who, as pointed out, did not set aside the default judgment.
The defendant's application to set aside the default judgment based on procedural grounds cannot be described as a false excuse. The defendant was entitled to make such an application.
There is no evidence at all of any bias established by the magistrate's comment or the fact that default judgment was set aside.
The specific comments raised by Mr Milentis as showing bias appear at ts 32 where his Honour stated 'if that was applied to matters that come before the court on a daily basis, then everyone that made a claim would be successful'.
That comment was in response to Mr Milentis' statement on ts 31 that he would not have made his claim just to waste people's time. The comment made by his Honour was quite appropriate. Mr Milentis' approach in part was 'I wouldn't have come to court to waste people's time unless my claim was valid.' If that logic was applied every claim lodged would succeed. His Honour's role was to determine whether Mr Milentis has discharged the burden of proof. The comment made by his Honour does not indicate any bias in any shape or form.
There is no merit in this ground.
The magistrate's decision was unreasonable or plainly unjust
The core of pars (l), (m), (n), (o) and (p) of Mr Milentis' grounds of appeal is that the magistrate's decision was unreasonable or plainly unjust.
Paragraphs (l) to (p) are as follows:
(l)Magistrate Millington delivers his 'judgement' from pages 38 to 42. He states this is a civil matter therefore, he bears the onus of proving the claim on the balance of probabilities. That was done.
(m)For Magistrate Millington to think otherwise is an abuse of his legal position. Maybe it is my fault. The applicant in this case were expecting that justice would be served with an even hand and all the evidence would be taken into consideration.
(n)Magistrate Millington states on page 39 (lines 22 to 43) of the transcripts regarding what was not said by the appellant's witness? It was made clear to the court on page 27 as to what happened at the funeral of the appellant's late mother.
(o)The 'character' of the appellant's brother was made clear to the court. The 'defendant' is also well aware of the 'character' of the appellant's brother. The Milentis family has a very deviant family member within the family tree. This 'deviant member' basically poisoned the well so to speak against the appellant at the funeral of the mother.
(p)One would have thought that Magistrate Millington had he not been in such a haste to find against the appellant that he may have studied all the evidence before him that he would have come to a totally different decision.
His Honour correctly explained that it was a civil matter and that Mr Milentis bore the onus of proving his claim on the balance of probabilities.
His Honour considered the evidence. The evidence at the trial was from Mr Vojdinoski, Mr Milentis and the three exhibits. His Honour summarised the evidence of both witnesses. His Honour correctly identified the issue, that is, whether there was an oral loan agreement, that is, an agreement for Mr Milentis to lend to the late Mr Mitskinis $10,000 and for the late Mr Mitskinis to repay it.
His Honour commented on aspects of uncertainty of the contract but did not decide the case on that basis. His Honour correctly identified the issue before the court. His Honour was not satisfied by the evidence that there was 'this' agreement (clearly a reference to there being an agreement that money would be lent by Mr Milentis and repaid by the late Mr Mitskinis).
His Honour referred to what was not said by the appellant's witness. His Honour made the perfectly legitimate observation that Mr Vojdinoski said there was a conversation at a funeral but did not give any details of what was said by the deceased which, of course, would have been the admissible evidence. The only admissible evidence would have been an admission or acknowledgement by the late Mr Mitskinis that he owed money to Mr Milentis. Mr Vojdinoski gave no such evidence.
When asked by Mr Milentis:
Do you recollect after the funeral the matter of the loan being discussed between myself and the deceased and other family members that were present? – Yes. Because there was a – there was an extended conversation that just – don't (indistinct) recall it but it was a long conversation that would not.
In response to his Honour's questions, Mr Vojdinoski replied he 'had a brilliant recollection of it, it was an extended long conversation'.
At no stage was there any evidence from Mr Vojdinoski that the deceased acknowledged that there was a debt owing. Evidence that there was a conversation takes the matter nowhere. His Honour correctly pointed out that Mr Vojdinoski did not give any evidence of what the deceased said during that conversation and therefore it did not add any support to Mr Milentis' claim.
Mr Vojdinoski's evidence was that he 'has a recollection of the fact that Mr Milentis loaned the deceased Mr Mitskinis $10,000 in March of 1981'. Mr Vojdinoski was relying on a recollection of an event that occurred 36 years ago and occurred when he was about 4.
Mr Vojdinoski also said in his evidence:
I received clarification by other family members verifying the said amount was loaned during the stated period but any attempts by Demetrius to repay the said amount was not fulfilled thus the debt has not been settled.
This is clearly hearsay and the magistrate was entitled to disregard hearsay evidence.
The character of Mr Milentis' brother has nothing to do with it. He was not a witness called by Mr Milentis, or the defendant. His character was simply and utterly irrelevant to any issue before his Honour.
At the appeal Mr Milentis placed some importance on exhibit 3 being a bundle of documents that were received as exhibits. For the sake of completeness I will deal with each in turn.
Exhibit 3.1 is a copy of Commonwealth Trading Bank of Australia bank records dated 28 May 1982 with the inscription 'received from George Milentis, Basil Milentis and Jeanie Vojdinoski by cheque the sum of $35,420.63.'
Mr Milentis said it showed that he had an account in 1982 with the Commonwealth Trading Bank and that he handled his mother's affairs. Even accepting this, the documents do not show that he made a loan to the deceased.
The second page of the document is a page from the Commonwealth Savings Bank showing deposits and withdrawals made in 1971. Again, it shows that Mr Milentis had a Commonwealth Savings Bank account in 1971, but it does not show that he made a loan to the deceased.
Exhibit 3.2 is a letter from the Education Department addressed to Mr B Milentis at 23 Muir Street, Manjimup. It was tendered by Mr Milentis to show he was using the address as a mailing address. It does not show that he had lent money to the deceased.
Exhibit 3.3 is a copy of the Certificate of Title for the property. It shows there was a caveat lodged on the property by Mr Milentis on 17 November 2011. It does not give details of the caveat. It does not show that any money was lent by Mr Milentis to the deceased.
Exhibit 3.4 shows that on 28 February 2013 Mr Milentis was appointed the limited guardian of the deceased with the limited function of making medical decisions for the late Mr Mitskinis.
Exhibit 3.4 also shows that on the same date the Public Trustee was appointed plenary administrator of the estate of the late Mr Mitskinis under the Guardianship and Administration Act 1990 (WA).
Neither document establish that a loan was made.
Pursuant to the Guardianship and Administration Act such an order can only be made if the deceased was unable by reason of a mental disability to make reasonable judgment in respect of matters relating to all or any parts of his estate and was in need of an administrator of his estate: Guardianship and Administration Act s 64.
The effect of such an order is that the deceased thereafter is considered to be incapable of entering into any contract or making any disposition in respect of his estate or any part thereof or interest therein: Guardianship and Administration Act s 77.
From 28 February 2013 the deceased was a person under a mental disability and any purported acknowledgement by him of any debt owing could be of no effect. Mr Milentis has never suggested that he was unaware that the deceased was the subject of an administration order.
Exhibit 3.5 shows that there was a Guardianship Administration Act hearing on 28 February 2013 and that takes the matter no further.
Exhibit 3.6 is a letter from Landgate to the deceased advising that a caveat had been lodged on his land by the Public Trustee pursuant to the plenary administration order. This is irrelevant and does not assist Mr Milentis' claim one way or the other.
Exhibit 3.7 is a letter from the Public Advocate to Ms Vojdinoski dated 27 November 2012 advising that an application had been received to appoint a guardian for Mr Mitskinis. This is irrelevant and does not assist Mr Milentis' claim one way or the other.
Exhibit 3.8 are Bunbury Hospital records establishing that the late Mr Mitskinis was in hospital from 17 to 23 April 2014. This does not establish directly or indirectly what was discussed at the hospital.
Exhibit 3.9 is a letter from Mr Owens to the Public Trustee dated 26 August 2014. Mr Owens was acting for Mr Milentis and the statements made in that letter are simply self-serving statements made by Mr Mitskinis to his own lawyer and do not provide any evidence that a loan was made. The letter may have been relevant to rebut an allegation of recent invention. However, no such allegation was made.
Exhibit 3.10 is a letter from Mr Evans to Mr Owens of 15 April 2015 indicating that he acknowledged receipt of the claim and would consider it in due course. Also attached is a copy of the probate and the Will of the deceased. It is irrelevant.
Exhibit 3.11 is a letter from Mr Evans to Mr Owens dated 10 June 2015. The letter acknowledges that a claim is made but disputes the claim. It does not assist one way or another. It is irrelevant.
Exhibit 3.12 is a letter from Mr Owens to Mr Evans of 17 August 2015 which restates Mr Milentis' position and includes a request from Mr Owens for Mr Evans to run the matter past the principal beneficiary, ie, the Royal Flying Doctor Service. It is irrelevant and does not provide support for Mr Milentis' evidence that a loan was made.
Exhibit 3.13 is a letter from Mr Owens to Mr Milentis dated 13 July 2016. Insofar as it asserts a position adopted by the executor's lawyers, it is hearsay.
Exhibits 3.14 and 3.15 are Magistrates Court forms 19, 32, 32A, 35 and 36 which includes exhibit 1 and 2 being the evidence of Mr Vojdinoski and Mr Milentis.
In his reasons for judgment his Honour was not stating as a matter of law that independent evidence was required to support Mr Milentis' claim. As a matter of law independent evidence is not required. What was required was that Mr Milentis satisfy his Honour on the balance of probabilities that a loan agreement existed. All the circumstances needed to be considered.
The loan is said to have occurred in 1981 that is 36 years ago.
These proceedings were not commenced until after the death of Mr Mitskinis.
There was a complete absence of documents showing that a loan had been made.
Mr Milentis' evidence was that he lent money to the deceased in March 1981 so the deceased could purchase a house, yet the title deeds are issued in Mr Milentis' name not the deceased's name (ts 23).
Mr Milentis claimed in evidence he did not know the property had been registered in his name until some years later and he did not sign the contact of sale or transfer papers (ts 23).
Mr Milentis' evidence was that the loan made in March 1981 was repayable within two years, ie, before April 1983.
Mr Milentis claimed in evidence that in April 1983 the property was transferred out of his name into the deceased name via a transfer that stated the consideration was $12,000. He maintained that he did not receive any of that consideration (ts 25).
These circumstances alone as a matter of common sense and logic would in my view demand that the court scrutinise the evidence of Mr Milentis. Mr Milentis is saying he lent the deceased $10,000 to be repaid within 2 years so the deceased could buy a house. Mr Milentis' own evidence is that the property was purchased in his name and at the same time that he says the loan was to be repaid, the property was transferred out of his name into the alleged borrower's name for an amount in excess of the amount that he says he lent him. Mr Milentis says he did not receive any of that money. As I have said that cries out to scrutinise the evidence of Mr Milentis and as a matter of common sense and logic any tribunal of fact would look for independent evidence to support Mr Milentis' evidence before they would rely on it.
Mr Milentis' evidence that the loan repayment was revisited in September 2006 at a post-funeral wake for his mother does not establish that there was an acknowledgment by the deceased uncle that a loan had been made.
Mr Vojdinoski gave evidence of an extended conversation at the funeral but did not give any evidence of any acknowledgement by the deceased that he was indebted to Mr Milentis.
Mr Milentis' evidence that on 19 April 2014, whilst the deceased was in hospital, the latter said he intended to repay the loan, taken at its highest for Mr Milentis, is a statement made at a time when the deceased was a person under a disability, having by then been declared by the Guardianship Administration Act to be incapable of conducting his own affairs. The deceased's statements, if made, could not constitute an admission or an acknowledgement of the debt.
Mr Vojdinoski's evidence that he 'has a recollection of the fact that Mr Milentis loaned the deceased Mr Mitskinis $10,000 in March of 1981' must be considered in light of the fact that in March 1981 Mr Vojdinoski was about 4 years of age. Mr Vojdinoski was relying on a recollection of an event that occurred 36 years ago when he was about 4 years of age. Mr Vojdinoski's evidence was inherently implausible given his age at the time of the loan. Mr Vojdinoski gave no details of what was said. His Honour indicated that he had a 'significant question mark' over that evidence.
In those circumstances his Honour was entitled, as a matter of logic and common sense, to look for independent evidence to establish the loan had been made and in the absence of such evidence was entitled to conclude Mr Milentis had not, as a matter of fact, persuaded him that a loan had been made.
The fact that Mr Milentis has a Commonwealth Bank account and used the property as a mailing address and looked after his mother's affairs is incapable in law of forming the factual basis from which an inference can be drawn that a loan was made to the deceased. On that issue the only evidence was Mr Milentis' testimony and his self-serving statements.
It cannot therefore be said that his Honour's decision was unreasonable or plainly unjust, or that it could be inferred that in some way there has been a failure to properly exercise the discretion which the law reposes in the magistrate: House v The King [1936] HCA 40; (1936) 55 CLR 499.
There is no merit in this ground.
The learned magistrate erred in law in that he tried the claim as if it was a breach of contract claim as opposed to an action on debt
Mr Milentis' evidence (exhibit 2, pars 15 and 16) was that he loaned his deceased uncle $10,000 in cash in March 1981 and the loan was to be repaid within two years, that is, by March 1983.
Pursuant to the statute of limitations, any action to recover the money would be statute barred by April 1989.
To extend the statute of limitations there would need to be an acknowledgement by the deceased of the existence of the loan, but there is simply no evidence that there was any acknowledgement by the deceased that a loan had been made.
Mr Milentis states in his evidence (exhibit 2, par 26) 'In the late 80s, my uncle received a WAGR redundancy and I did approach him about the loan being repaid'. There is nothing in that statement which indicates that the deceased accepted that there had been a loan or acknowledged the loan.
Mr Milentis says (exhibit 2, par 29), 'The issue of the loan repayment was revisited in September 2006 at the post-funeral family wake of my mother funeral'. Again, there is no evidence that at the mother's funeral the deceased either acknowledged the existence of the loan and the obligation to repay.
Neither Mr Milentis' nor Mr Vojdinoski's evidence, dealt with previously, in relation to the mother's funeral establishes that there was any acknowledgement by the deceased of the loan.
The placing of the caveat on 17 November 2011 was a unilateral act performed by Mr Milentis, it does not involve any acknowledgment by the deceased of any loan or indebtedness.
Mr Milentis alleges that on 19 April 2014 his deceased uncle mentioned the $10,000 debt and that he intended to repay it. For reasons previously expressed by that date, Mr Mitskinis by law was deemed to be a person under a disability and therefore the statement, if made, cannot be accepted by the court as an acknowledgement of any debt and an intention to repay.
If the argument is there was no date agreed for the repayment of the loan or was a loan repayable on demand and the caveat lodged on 17 November 2011 constitutes a demand for payment, and thus the statute of limitations does not expire until 17 November 2017, then that argument has no substance in fact or law.
Firstly, Mr Milentis' evidence was that the loan was to be repaid within two years, that is by March of 1983. Secondly, there is no evidence as to the contents of the caveat. Thirdly, as a matter of law if there is no agreement as to the time for repayment of the loan, the liability to repay the loan arises as soon as the loan is made without the need for the making of any request or demand.
In Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5 Murphy JA (Buss JA agreeing) reiterated that at common law a loan made where no time for repayment is specified, or where the loan is stated to be payable 'on demand', creates an immediate debt by which the money is repayable immediately without the creditor first making a demand for payment: Norton v Ellam (1837) 2 M & W 461; (1837) 150 ER 839; Young v Queensland Trustees Limited [1956] HCA 51; (1956) 99 CLR 560, 566; The Stage Club Limited v Millers Hotels Proprietary Limited [1981] HCA 71; (1981) 150 CLR 535, 569 (Brennan J); Ogilvie v Adams [1981] VR 1041, 1043, 1052, 1059; Haller v Ayre [2005] QCA 224 [26], [32]; MacKenzie v Albany Finance Ltd [2003] WASC 100 [243], [245] (appeal allowed on other grounds MacKenzie v Albany Finance Ltd [2004] WASCA 301); Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd (rec and mgr apptd) (1993) 11 ACSR 1, 4; Chitty on Contracts (30th ed, vol 2, 2008) 38-247.
Mr Milentis' action is clearly a common law action of debt. His Honour treated it as such. In an action for debt the plaintiff must still establish that a loan was made.
The Limitation Act 2005 (WA) s 59 provides that a cause of action for repayment of a debt repayable on demand accrues when there is a failure to comply with the demand for repayment. However, the Limitation Act 2005 applies only to causes of action that accrue on or after the commencement date of that Act (15 November 2005). Mr Milentis' case was that a loan repayable within two years was made. The cause of action accrued at the latest on 1 April of 1983. The Limitation Act 2005 does not apply. The Limitations Act 1935 provides for a six year limitation period for the recovery of a debt. Mr Milentis cause of action expired on 2 April 1989.
If no time for repayment was provided, the time will run from the date of the loan: Netglory Pty Ltd v Caratti [2013] WASC 364 [275] (Edelman J). That is the cause of action accrued from the date of the loan, at the latest on 1 April of 1981 and the Limitation Act2005 (WA) would not apply and the cause of action would have expired in April 1987.
Mr Milentis' actions in lodging a caveat in 2011, even if it is accepted that constitutes demand for repayment and we do not even know the contents of the caveat, does not amount to any acknowledgement by the late deceased of indebtedness and did not turn a loan which was on Mr Milentis' evidence payable within two years into a loan repayable on demand.
Mr Milentis puts his case on the basis that it was a loan repayable within two years, therefore at the highest for Mr Milentis even if his Honour was satisfied a loan was made, this case could never succeed because it is statute barred. His Honour indicated but did not decide that point at ts 42.
There is no merit in any ground of appeal.
It is always possible for a magistrate to express his reasons more succinctly and clearer, however this was a trial which occurred in a busy Magistrates Court. His Honour made no error in law or fact.
I dismiss the application for extension of time in which to appeal however, even if I had granted an extension of time, I would have dismissed the appeal.
The orders I make are:
1.The application for extension of time within which to appeal is refused.
2.The applicant pay the respondent's costs to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
ASSOCIATE TO JUDGE BOWDEN24 AUGUST 2018
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