Miller v Herbert - [2021] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MILLER -v- HERBERT [2021] WADC 107
CORAM:   PRIOR DCJ
HEARD:   23 AUGUST 2021
DELIVERED          :   5 NOVEMBER 2021
FILE NO/S:   APP 35 of 2021
BETWEEN:   MARK MILLER
Appellant
AND
TYRON ALAN HERBERT
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE LEMMON
File Number            :   ROC/CTC/1149/2019

Catchwords:

Appeal - Magistrates Court - Application by claimant to amend his claim from a general procedure (consumer/trader) claim to a general procedure claim at trial - Adjournment of trial - Consequential costs order - Turns on own facts

Legislation:

District Court Rules 2005 (WA), r 7A, r 50(1), r 53(2)
Magistrates Court (Civil Proceedings) Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 3, s 17, s 40(1), s 40(4), s 43(3)
Magistrates Court Act 2004 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Ms N Milosevic
Respondent	:	Mr C Silver

Solicitors:

Appellant	:	Mountains Lawyers Pty Ltd
Respondent	:	Chad Silver & Associates

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

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Avsar v Binning [2009] WASCA 219
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Dodds v Kennedy [2011] WASCA 32
Jones v Darkan Hotel [2014] WASCA 133
Norbis v Norbis (1986) 161 CLR 513
Rowe v Stoltze [2013] WASCA 92
Waite v Hennah [2019] WASC 468

PRIOR DCJ:

Introduction

This is an appeal against the orders of Magistrate Lemmon made on 21 May 2021 in proceedings commenced by Mr Herbert against Mr Miller in the Rockingham Magistrates Court.
The proceedings are in relation to a breach of an oral contract between the parties.
Mr Herbert claims that he entered into an oral contract with Mr Miller to sell him a sprint car which Mr Miller would modify for him. Mr Herbert has not received the sprint car. Mr Herbert claims a total of $20,000 for monetary instalments paid to Mr Miller and the value of parts he gave to Mr Miller to install in the sprint car.
Mr Miller has counterclaimed for $1,750 being the cost of a different chassis from the original chassis he put on the sprint car.

The decision the subject of appeal

The claim was listed for trial before Magistrate Lemmon on 21 May 2021. The trial dates for the matter had been vacated on two previous occasions due to unavailability of counsel and insufficient court time available. Mr Herbert had changed his legal representation a number of times leading up to the trial.
At the beginning of the trial on 21 May 2021 both parties, through their legal counsel, indicated they were both ready to proceed to trial.
Before the opening addresses by counsel, counsel for Mr Miller amended the counterclaim to $1,962.10. Mr Herbert did not oppose the amendment. Mr Herbert's counsel then amended his claim to $20,000. Mr Miller did not oppose the amendment.
Counsel for Mr Miller then advised the magistrate that there was 'a technical argument in relation to the claimant issuing a Form 7 Consumer/Trader Claim', as it did not meet the definition of a 'trader' in s 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act). Mr Miller's counsel submitted that the claim should be a Form 3 general procedure claim because it was a private consumer to consumer transaction and not captured by Australian Consumer Law. Mr Miller's counsel submitted therefore, the claim was defective and it could potentially be dismissed.
The magistrate responded to Mr Miller's counsel that this issue should have been raised earlier. Counsel for Mr Miller advised the magistrate that an interlocutory application to dismiss the claim was considered, but not made. Counsel for Mr Miller also accepted that if an application had been successfully made to strike-out Mr Herbert's claim on the basis Mr Miller was not a trader, the proceedings could have later been brought against Mr Miller as a general procedure claim.
The magistrate commented that if he was to deal with an application by Mr Miller to strike-out the claim, there would need to be evidence addressing the question as to whether Mr Miller was a trader. He commented that is why ideally a separate application with affidavit evidence in support should be made and the application be heard separately.
Counsel for Mr Herbert submitted in response that the claim could proceed as a general procedure claim. Counsel for Mr Miller submitted the claim was defective and should be dismissed. Counsel for Mr Herbert then applied for the claim to be amended as a 'general procedure claim pleaded in contract only'.
Counsel for Mr Miller submitted the issue of whether Mr Herbert's claim was valid as a consumer/trader claim could be determined as part of the trial.
The magistrate then adjourned the trial for approximately two hours for him to consider the relevant law and for both parties to discuss their positions.
Upon resumption of the trial, the magistrate advised that Mr Miller's position as to the form and validity of the claim should have been made in a strike-out application and before the trial. The magistrate stated he also had the power under s 13 of the Act to treat Mr Herbert's claim not as a consumer/trader claim, but as a general procedure claim. He further commented that whichever type of claim proceeded, may impact on the remedies available to Mr Herbert.
Mr Herbert's counsel then made an application to amend his claim to a general procedure claim. Mr Miller's counsel opposed the application and the magistrate sought submissions from him as to how Mr Miller would be disadvantaged if the application was allowed. The magistrate commented that an adjournment of the trial if the application was allowed, could remedy any disadvantage to Mr Miller. The magistrate further made comments which indicated that due to the delay in the start of the trial, the trial may only be part heard and there could be some delay in obtaining an additional hearing day before him.
Counsel for Mr Miller indicated the disadvantage to Mr Miller in allowing the application was the focus in preparing the defence, Mr Miller was not a trader and further evidence may be required if the claim was amended. The magistrate responded that this prejudice could be remedied by the trial being adjourned and the parties being granted leave to file further witness statements.
The magistrate granted Mr Herbert's application to amend his claim. He accepted there was some prejudice to Mr Miller by allowing the amendment at such a late stage in the proceedings but considered the prejudice could be cured by the trial being adjourned and Mr Miller being given leave to file further evidentiary material. He considered the issue and that the adjournment of the trial had arisen because of the fault of both parties not raising the issue of the form of the claim earlier. The magistrate also stated that he was not satisfied if the trial had commenced, it would have been concluded within the day and that was a significant factor in considering the prejudice to the parties of allowing Mr Herbert's application.
Mr Miller's counsel then applied for costs. The magistrate ordered that the costs be in the cause.
Counsel for Mr Herbert, following the magistrate's decision, formally abandoned the assertion in his claim that Mr Miller was a trader.
The magistrate made the following orders:
1.Claimant (Mr Herbert) has leave to amend his claim from a General Procedure (Consumer/Trader) Claim to a General Procedure Claim seeking $20,000 plus costs.
2.Defendant (Mr Miller) have leave to amend his Counter-claim to a claim for $1,735 plus costs.
3.Claimant (Mr Herbert) to lodge and serve his amended General Procedure Claim within 7 days.
4.Defendant (Mr Miller) to lodge and serve his amended Counter‑claim within 7 days of service of the amended General Procedure Claim.
5.Claimant (Mr Herbert) to lodge and serve an Amended Statement of General Procedure Claim within 14 days.
6.Defendant (Mr Miller) to lodge and serve an Amended Defence within 14 days of service of the Amended Statement of General Procedure Claim.
7.Defendant (Mr Miller) has leave to lodge and serve amended Statements of Intended Evidence of a Witness and any additional Statements of Intended Evidence of a Witness to be relied upon at trial provided such Statements are lodged and served by 01.11.2021.
8.Adjourned for Trial hearing 23/12/2021 at 9.30am.
9.Costs of todays proceedings to be in the cause.

Grounds of appeal

The grounds of appeal are as follows:
1.The Learned Magistrate erred in law by not following the principle of Civil Procedure and dismissing the claim with costs to the defendant for want of jurisdiction in the circumstances where:
(a)The claimant commenced and continued to proceed to trial with a claim under the consumer/trader jurisdiction despite being put on notice that the defendant was not a trader.
Particulars
(i)By paragraphs 1 to 2 of the Statement of Defence the defendant pleaded that he did not enter into any trader/consumer arrangement with the claimant and does not make any income or trade any business associated with sprint cards (sic).
(ii)By paragraph 1 of the claimants statement of defence to the defendants general procedure counter claim the claimant pleaded that at all times the defendant held himself out as trading as MM Motorsport and provided invoices to the claimant under the trading name MM Motorsports.
(iii)The legal representative for the claimant corresponded with the Court and with the defendant in March and April 2020 (before the matter was listed for trial) noting the pleadings (as drafted by the previous lawyer for the claimant) were inept and may need to be repleaded and requesting an indication of costs thrown away. A figure of $10,000 for costs thrown away was provided to the defendant if the claim was repleaded at that time.
(iv)By letter lodged with the Court on 10 June 2020 the legal representative for the defendant acknowledged that the claim was lodged 'as a consumer/trader claim in the General Procedure Claim Jurisdiction and retracted his previous assertion by letter to the Court in relation to costs not being applicable because it was a consumer/trader claim.
(b)The claimant did not amend or replead the claim and the defendant proceeded to prepare for trial on the basis of defending a consumer trader claim underpinned by Australian Consumer Law legislation as a major component of the defence.
(c)The Listing Conference Memorandum filed by the defendant on 9 March 2020 lists as the statement of issues of fact and law that the party contends will need to be determined at the trial for the defence as:
(i)The parties are not and never have been in a consumer/trader relationship.
(ii)The claimant is indebted to the defendant in the amount of $5,175 for parts ordered at the claimant's request.
(iii)The defendant is not indebted to the claimant as claimed or at all.
(d)The claimant did not seek to amend its claim prior to the commencement of the trial or during counsels opening submissions.
(e)After counsel for the claimant closed, counsel for the defendant opened submissions by outlining the facts in defence and that part of the defence is that the defendant is not a trader.
2.The Learned Magistrate erred in law by not following civil procedure and giving the claimant an election after the commencement of the trial to either proceed with the consumer/trader claim or to amend the claim to a general procedure claim under caution that the defendant would seek to have the claim struck out if it were not amended.
3.The Learned Magistrate erred in law by failing to consider the prejudice to the defendant by allowing the claimant to amend his claim to a general procedure claim despite acknowledging that the amendment was a fundamental change to the jurisdiction and the nature of the claim under which the claim was commenced at trial.
4.The Learned Magistrate erred in law by attributing fault to the defendant for not making an interlocutory application to strike‑out the claimants case statement where there is no obligation at law on the defendant to do so and it is part of the defendants defence.
5.By attributing fault to the defendant the Learned Magistrate failed to consider the defendants submission that the claim should be dismissed with costs whereupon the claimant had the option to commence a fresh claim in the correct jurisdiction.
6.By attributing fault to the defendant, the Learned Magistrate further erred by not following civil procedure standard costs orders and by not awarding costs thrown away be paid to the defendant despite acknowledging that the defendant had focused his defence and trial preparation on defending a consumer/trader claim.
7.By attributing fault to the defendant, the Learned Magistrate erred by not awarding costs of the trial day thrown away to the defendant and instead making an order for costs in the cause.
At the hearing of this appeal, counsel for Mr Miller described the first two grounds of appeal as relating to procedural fairness, and the five remaining grounds of appeal as relating to the court exercising its discretion. The sixth and seventh grounds of appeal relate only to the magistrate's orders made on costs.
The grounds of appeal are prolix, convoluted and repetitive.
In essence, the issues in the appeal are: Whether the magistrate erred in his exercise of discretion to allow an amendment of the claim from a consumer/trader claim to a general procedure claim and ordering costs be in the cause.
In the notice of respondent's intention dated 14 July 2021, under 'Other grounds for upholding the appeal', he pleads:
…
1.This appeal presents as a matter whereby the costs of the appeal are going to be inherently disproportionate to the remedy sought, and thus should be struck out.
There was no application to strike-out the appeal made by Mr Herbert before the appeal hearing.

The nature of this appeal

A judgment of Magistrates Court on a general procedure claim may be subject to an appeal to the District Court: s 40(1) of the Act.
In this appeal, I must reconsider the evidence which was before the magistrate. The appeal is in the nature of a re-hearing: District Court Rules 2005 (WA) (DCR) r 50(1); s 40(4) of the Act.
Mr Miller must demonstrate and satisfy me that there was some legal, factual, or discretionary error on the part of the magistrate: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission.[1] If such an error has been made, I can substitute my decision for that of the magistrate. If no error is shown, I cannot intervene.[2]
[1] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203.
[2] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
The fact that Mr Miller is disappointed with the result does not mean that the appeal court is able to intervene. Mr Miller must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitled Mr Miller to the orders or relief that he seeks.[3]
[3] Avsar v Binning [2009] WASCA 219 [37].
So far as a discretionary error is concerned, the well‑known principles enunciated in House v The King[4] are applicable. Before the magistrate's discretion should be reviewed, it must appear that some error has been made in exercising the discretion, such as acting on a wrong principle, allowing extraneous or irrelevant matters to guide or affect him, or mistaking the facts or failing to take into account some material consideration. Alternatively, if it appears upon the facts that it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion even though the error may not be discoverable.[5]
[4] House v The King(1936) 55 CLR 499.
[5] See alao Dodds v Kennedy [2011] WASCA 32 [4].
In Norbis v Norbis,[6] Mason and Deanne JJ made the following comments elaborating on the principles set out in House v The King:
Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.
The principles enunciated House … were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision‑making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of such an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
[6] Norbis v Norbis (1986) 161 CLR 513, 518 - 519.
In this appeal, it is not for me to adjudicate on the facts in dispute between the parties or rule on credibility matters in relation to the proceedings. It is for me to decide if the magistrate erred in coming to his primary decision on the application made by Mr Herbert and the consequential order the magistrate made. Mr Miller must demonstrate the magistrate made some error in the exercise of his discretion: Jones v Darkan Hotel.[7] There is no onus on Mr Herbert.
[7] Jones v Darkan Hotel [2014] WASCA 133 [31].
The decision of the magistrate, the subject of this appeal, was a discretionary judgment on practice and procedure. In a discretionary judgment on practice and procedure an appeal court should exercise special restraint before interfering: Dodds v Kennedy[8] An error of principle needs to be established and the decision appealed from, must work a substantial injustice to one of the parties.[9]
[8] Dodds v Kennedy [5] and Morton Seed and Grain Pty Ltd v Corser and Corser [2006] WADC 90; (2006) 43 SR (WA) 182 [15].
[9] Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177.

Issues not in dispute

At no stage leading up to the trial on 21 May 2021 did Mr Herbert seek to amend his claim from a general procedure consumer/trader claim to a general procedure claim.
From 25 September 2019 when Mr Miller filed his statement of defence, Mr Herbert was on notice that Mr Miller's position was that he was not a trader and had not entered into a consumer/trader agreement.
At no stage prior to the trial did Mr Miller apply to strike-out Mr Herbert's claim.
The power of a magistrate to strike-out all or part of a case statement arises pursuant to s 17 of the Act.
Section 17 of the Act empowers the court to strike-out all or part of a case statement in any of the prescribed circumstances, and if all of the case statement is struck out, to give judgment without a trial. A case statement is described as a statement of claim in the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR).[10]
[10] MCCPR r 7A.

Both parties accept that the magistrate had the power to make the orders he made on 21 May 2021 as set out in [20].

Grounds 1, 2 and 3

Particulars (a) - (c) to ground 1 and Mr Miller's draft chronology sets out the history of Mr Herbert and his various legal representatives being put on notice by Mr Miller that he was not a consumer/trader and therefore Mr Herbert's claim was defective.
The chronology of events at the trial on 21 May 2021 as I have set out in [6] - [20] does not reflect particulars (d) and (e) of ground 1. Mr Herbert's counsel had not started his opening address by way of outlining Mr Herbert's case, nor had he closed his case, when the application to amend the claim to a general procedure claim was made. The application was made after preliminary discussion with the magistrate when the issue was raised by Mr Miller's counsel and after an adjournment. In my view, it was therefore an application of interlocutory nature made by Mr Herbert before the opening address and any evidence including the calling of witnesses was produced at the trial. I am therefore required to apply the principles I have referred to in [34] when considering this appeal.
I agree with the magistrate's view that if Mr Miller wanted to make a formal application to strike-out Mr Herbert's claim, such an application would require evidence in support, at least in affidavit form. In those circumstances when Mr Miller's counsel raised this issue, his application could not be heard and any formal application he made to dismiss Mr Herbert's claim was premature.
The application to amend the claim by Mr Herbert was clearly very late and in circumstances where Mr Herbert and his various legal representatives, was on notice for a substantial period of time that the claim had been made in the wrong jurisdiction. This was counter‑balanced by the fact Mr Miller had never made any application to strike-out the claim leading up to the trial on 21 May 2021.
I am unable to find any error of the law by the magistrate 'not following the principle of civil procedure and dismissing the claim with costs to the defendant for want of jurisdiction'. Mr Herbert's application to amend his claim was made before the trial proceeded with opening addresses and evidence.
The magistrate heard submissions from both counsel including the 'disadvantages' (prejudice) to Mr Miller if the claim was to be amended at that late stage. There was no obligation for the magistrate to let the issue of jurisdiction to just remain an issue for determination in the trial.
The efficient administration of justice required a fundamental issue such as the jurisdiction of the claim to be resolved before any evidence was heard at a trial. Resolving an issue in this way is consistent with the proper principles of case management as enunciated in Aon Risk Services v Australian National University[11] and the duties of the magistrate in dealing with cases as set out in s 13 of the Act.
[11] Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
The rules of procedural fairness were summarised in the judgment of the Court of Appeal in Rowe v Stoltze[12] as follows:
… It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] - [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].
[12] Rowe v Stoltze [2013] WASCA 92 [51].
The principles of procedural fairness require that a party be given an opportunity to present their case and be heard. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[13]
[13] Waite v Hennah [2019] WASC 468 [79] - [80] (Smithy J).
Once Mr Herbert's application was granted, the issue as to jurisdiction was resolved. It is unfortunate that the application was made so late, but there was nothing precluding Mr Herbert from making the application at the trial date before the trial proceeded to opening addresses and evidence.
In the magistrate's consideration of Mr Herbert's application, he heard from Mr Miller's counsel as to the prejudice to Mr Miller if the application was granted. Significant weight was also given by the magistrate to the fact that at the time the application was made, it was clear the trial, if it proceeded, would not be completed on 21 May 2021 and another hearing day at a later date when the magistrates was available was required.
Although the granting of Mr Herbert's application was not in Mr Miller's interest, I am satisfied the way the magistrate dealt with the application, gave proper regard to the principles of procedural fairness described in [48] and [49]. The magistrate, in coming to his decision on Mr Herbert's application, considered the interests of the parties, the public interest, the property, efficient use of the scarce public resources of the court and the effect of undue delay including stress and cost caused by the ongoing litigation.
In relation to ground 2, I am not aware of any principle of civil procedure nor has Mr Miller cited any authority as a matter of law which precluded the magistrate from dealing with Mr Herbert's application to amend his claim before the trial proceeded.
In relation to ground 3 as indicated in [15] - [17], the magistrate did consider the prejudice to Mr Miller in allowing Mr Herbert's application to amend the claim. That was not the only relevant consideration the magistrate took into account or was obliged to consider. No error has been demonstrated by Mr Miller in relation to this ground.
Grounds 1, 2 and 3 of the appeal are dismissed.

Ground 4

As I have stated in [9], the magistrate was critical of the fact that Mr Miller had not made an application to strike-out Mr Herbert's claim before the trial. As I have stated in [43] - [47], this criticism was justified.
Ground 4 of the appeal implies the magistrate erred in taking into account his criticism of Mr Miller described in [56] as an irrelevant consideration. This was a relevant matter for the magistrate to consider.
No error has been demonstrated by Mr Miller and ground 4 is dismissed.

Ground 5

There is no merit in this ground of appeal.
As I have described in the sequence of events in [8] - [17], at the trial on 21 May 2021, the magistrate dealt with Mr Herbert's application to amend his claim before he considered any application by Mr Miller to strike-out Mr Herbert's claim. There was no legal requirement or obligation for the magistrate to hear an application by Mr Miller to strike-out Mr Herbert's claim first. In any event, as I have referred to in [10], any such application, if made by Mr Miller, at the beginning of the trial on 21 May 2021 would have been premature, as there was no evidence before the magistrate to support an application to strike-out the claim.
Ground 5 of the appeal is dismissed.

Grounds 6 and 7

Both grounds 6 and 7 of the appeal submit that the magistrate erred in making the order that costs be in the cause and not awarding costs to Mr Miller. It is submitted in each ground that the costs award was made by the magistrate because he attributed fault to Mr Miller. The relevant fault would be what I have referred to in [9] and [10].
Magistrates have a wide power in exercising their discretion on costs. In the proceedings before the magistrate, Mr Herbert succeeded on his application to amend his claim. As I have referred to in [15] and [17], by the time of the day that the application was decided, there was insufficient time available to complete the trial. The trial needed to be relisted or proceed part heard. As a result of this, both parties would incur additional costs.
I am unable to find that there would be a need for Mr Miller to do any further significant work by the abandonment of the claim against him that he was a trader. Mr Miller would always still be obliged to defend the claim that he breached an oral contract with Mr Herbert.
I am not satisfied that the magistrate in making the costs order, placed substantial weight in any fault on Mr Miller. Even if he did, any allegation going to weight is not a proper ground of appeal. Mr Miller has not established any error in the magistrate exercising his discretion on the costs award. I am not satisfied that the costs order made by the magistrate stands outside the limits of a sound discretionary judgment.
Grounds 6 and 7 are dismissed.

Mr Herbert's reliance on s 43(3) of the Act

As I have dismissed Mr Miller's seven grounds of appeal it is unnecessary for me to consider Mr Herbert's reliance on s 43(3) of the Act. But in any event, I do not consider the likely costs of this appeal will exceed the value of Mr Herbert's claim of $20,000.
I am also of the view that any reliance by a party on s 43(3) of the Act for the court to strike-out an appeal, should be dealt with as a separate preliminary issue at a separate hearing before the substantive appeal is heard. This practice would be consistent with the principles of case management as enunciated in Aon Risk Services v Australian National University.

Leave for Mr Herbert to respond to the appeal out of time

Mr Miller filed his appeal notice on 10 June 2021. Mr Herbert filed his notice of respondent's intention on 14 July 2021.
Pursuant to DCR r 53(2), Mr Herbert was obliged to file his notice of respondent's intention by 1 July 2021, being within 21 days after the date of the service of the appeal notice. Mr Herbert's notice of respondent's intention is therefore 13 days out of time.
Counsel for Mr Herbert advised that before filing the notice of respondent's intention, particulars of the appeal were sought from Mr Miller's legal representatives.
I am unable to ascertain any prejudice to Mr Miller for the delay by Mr Herbert in filing his notice of respondent's intention 13 days out of time.
Given I have dismissed all grounds of Mr Miller's appeal, I will grant leave for Mr Herbert to file his notice of respondent's intention on 14 July 2021.

Conclusion

It has not been demonstrated by Mr Miller that the magistrate erred in making the orders on 21 May 2021 the subject of the appeal. Accordingly, the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
4 NOVEMBER 2021