Mills v Surface Coatings Removal Pty Ltd - [2015] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MILLS -v- SURFACE COATINGS REMOVAL PTY LTD [2015] WADC 10

CORAM: FENBURY DCJ

HEARD: 18 AUGUST 2014

DELIVERED : 6 FEBRUARY 2015

FILE NO/S: APP 48 of 2014

BETWEEN: MICHAEL MILLS
Appellant
AND
SURFACE COATINGS REMOVAL PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE BENN
File No  :MID MINOR 2502 of 2013

Catchwords:

Appeal from magistrate's decision dismissing appellant's application to set aside default judgment - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 29(4)

Result:

Appeal allowed

Representation:

Counsel:

Appellant: In person
Respondent: Mr P V Lansell

Solicitors:

Appellant: Not applicable
Respondent: Lansell Legal

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

FENBURY DCJ: This is an appeal by Michael Mills against a magistrate's decision to dismiss Mr Mills' application to set aside a default judgment entered by Surface Coatings Removal Pty Ltd against him on 2 January 2014. Judgment was entered in the amount of $7,689.01 including interests and costs.
Surface Coatings' claim had been for $4,750 in respect of work done and rendered in the form of sandblasting work.
Mr Mills filed his application to set aside the default judgment including an affidavit on 6 February 2014. Mr Mills' affidavit sworn and filed the same day was deficient in disclosing a defence on the merits.
On 19 February 2014 Mr Mills was given opportunity to rectify the evidential deficiencies within seven days. Unassisted by legal advice his efforts fell well short.
Mr Mills' primary assertion was that he was not the correct defendant but he offered no supporting evidence.
The matter once again came on for hearing before a magistrate on 12 March 2014. From the transcript the magistrate rightly concluded ' … there is simply no material before the court upon which I could conclude there is a defence with any merit on the face of it to this claim'.
Mr Mills' affidavit sworn 26 February 2014 had merely contained his bald assertion, 'I am not the correct defendant. As per stated on the invoice provided to the court'.
Mr Mills' application to set aside the default judgment was dismissed in an extempore decision.
By O 51A of the District Court Rules 2005 the appeal brought by Mr Mills must be commenced within 21 days after the date of the decision.
The magistrate's decision was handed down on 12 March 2014 and consequently the appeal had to be commenced by 2 April 2014.
Mr Mills did not lodge his appeal notice and affidavit until 6 May 2014, some 36 days late.
In spite of the need to obtain leave to appeal given the delay, no application for an extension of time was filed nor was one requested by the court or, for that matter, by the respondent. The matter was thereafter listed for a directions hearing before a deputy registrar of this court to be convened on 24 June 2014.
At the directions hearing the absence of an application to appeal out of time was not mentioned. Mr Mills was simply ordered to file an affidavit 'setting out the matters upon which he relied to establish a breach of natural justice within 28 days' which was on or before 22 July 2014.
Mr Mills filed his affidavit on 23 July 2014, one day late, pleading family medical emergencies as the reason for the delay. No point was taken about Mr Mills' lateness, either then or on lodgement of the appeal. There does not seem to have been any significant prejudice to Surface Coatings Removal Pty Ltd except, I surmise, by being kept out of the judgment proceeds.
In my belated contemplations of these matters it became apparent that Mr Mills had not offered any explanation for his delay in lodging the appeal. On reading O 51A of the District Court Rules and s 40 of the Magistrates Court (Civil Proceedings) Act 2004, that the appeal cannot be commenced out of time without the leave of the court. It was apparent in considering the issues a court must have an explanation. Only after such explanation is tendered and accepted can the court consider the matter on its merits and consider the question of prejudice.
Consequently, I caused a message to be transmitted to Mr Mills, and copied to counsel for the respondent on 24 October 2014 in the following terms:
Having reviewed the transcript of the hearing on the 18^th August His Honour has realised that the question of an extension of time for your appeal was not adequately dealt with. More particularly, although Mr Lansell took the point, you were not asked about it.
You cannot have the appeal considered unless you get an 'extension of time'.
The decision you wish to appeal was made on 12^th March 2014. You had 21 days to appeal that decision so it had to be commenced by the 2/4/14.
The appeal was not commenced until 6/5/14 – 36 days late.
You need to explain why your appeal was lodged late by swearing and filing an affidavit within 14 days. A copy of the sworn affidavit must be served on the Respondent's counsel, Mr Lansell.
In response to that Mr Mills swore and filed an affidavit on 11 November 2014 which contained a number of attachments.
I reiterate that the critical dates are, 12 March 2014 when the decision appealed from was made, 22 April 2014 when the 21 day period to appeal expired and the date it was actually commenced being 6 May 2014, 36 days later.
Mr Mills' affidavit deposes that he was admitted into Joondalup Health Campus on 24 March 2014 until 7 April 2014.
It also deposes that he was transferred to the Perth Clinic on 7 April 2014 until 6 June 2014.
Thus he swears that he was, presumably as a result of his ill‑health in respect of which he does not give detail, medically unable to carry out his obligations to appeal within time.
The relevant notice of appeal was filed at the District Court on 3 April 2014 together with an extension of time application by fax. However, because of his medical condition the notice was not filed. He states that he attended to it 'at the first convenient time'.
Mr Mills' affidavit is barely adequate but does lay down a basis, in the absence of any dispute about it, for taking the view that time should be extended and the appeal permitted to be brought even though it is out of time.
Turning therefore to the merit of the appeal, I think, having regard to the helpful observations made by Mr Lansell, in the best traditions of the bar, that it can be fairly briefly stated. Mr Mills asserts that he had a defence to the Surface Coating claim, being firstly, that he did not personally contract with Surface Coatings; it was Decorative Concrete Services Pty Ltd, a company formed to conduct his business that had done so.
Secondly, Mr Mills asserts that, in any event, the debt had been paid.
It was Mr Mills' failure to produce any evidence of the incorporation of the company, Decorative Concrete Services Pty Ltd at the relevant time that compelled the view that no defence had been disclosed by him and that the default judgment had to stand.
All that would have been required to meet this defect was the tendering of documentary proof of incorporation. The necessary certificate or declaration was readily available to the public by payment of a modest fee.
It is appropriate to refer to the transcript of the hearing on 18 August 2014 where exchanges with counsel at ts 20, ts 25, ts 26, are as follows:
And there may have been all sorts of other reasons why the invoice was in the name of a corporate entity. That may, for example, have been the – as a result of a request that Mr Mills made of Mr Hardman after the contract was actually formed. But we don't know that.
I think the point is, your Honour, whilst there might be issues of fact, I think the question is – I think the issue is that had Mr Mills put before the court, in a proper form, the information that he's now putting to you, the result of the application to set aside may have been different.
FENBURY DCJ:    Yes.
LANSELL, MR:     But the fact is, he didn't do that. …
…
Now, when the defendant – when the appellant was given an opportunity to swear an affidavit in the context of the initial transcript, all he said was 'I'm not the correct defendant', that's all. So it seems to me that the Magistrate had no alternative. I mean, what else was he going to do. He could have perhaps invited the appellant to apply for an adjournment so he could correct the matter, but what was he going to do?
He was going to – he would then have had to explain – he couldn't have done that, with respect to the learned magistrate, without infringing on the impartiality aspect of this argument, it seems to me. He's already given the appellant a considerable number of hints as to what he should be deposing to in the affidavit material, but the appellant simply didn't take advantage of that opportunity.
So that's the way we would see it.
FENBURY DCJ:    Yes.
LANSELL, MR: The only concern I would have with that, your Honour, is that this is a situation where – I don't want to make a submission necessarily contrary to my client's case, but there is – this is a situation where section 29(4) of the Magistrates Court (Civil Proceedings) Act says that:
'The court is not bound by rules or practice as to evidence. It may inform itself on any matter and such matters it feels fit.'
In fact s 29(4) states:
When dealing with a minor case the Court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit.
Counsel proceeded at ts 26:
Now, your Honour might take the view in those circumstances that perhaps it wasn’t necessarily the only means by which the magistrate could have informed himself of the relevant matters and perhaps it could be argued that affidavit evidence wasn't really required, but in this situation, it seems to me that the magistrate has clearly indicated to my friend what is required, what is required in terms of getting the appellant to where he wants to be - sorry, where he wants to go.
Now, a simple example would be the certificate of incorporation. If that was something which the appellant wanted to seriously pursue before the magistrate, then as a minimum, as an absolute minimum, he should have tendered the certificate of incorporation, and it may be argued if there were lawyers there that that's not a proper document, this is not a certified copy, et cetera, et cetera, but at the very - and having regard to section 29(4), it is quite possible, in my submission, that a certificate of incorporation without being duly certified may well have been enough.
FENBURY DCJ:    Even a Googled one.
LANSELL, MR:     Even a Googled one, yes. But the fact is that – yes, - or even a ‑ ‑ ‑
FENBURY DCJ:    Well, he didn't suggest that. He didn't know any better, he's not a lawyer. Difficult, isn't it?
LANSELL, MR:     Well, it is, but at the end of the day, what we're concerned with is whether the appellant has had a reasonable opportunity to outline his defence on the merits, and we would suggest that there's very clearly – this is a very clear situation where he has, and that if, further, if something more was required of the magistrate, then he would have to go very close to transgressing the line between what ‑ ‑ ‑
FENBURY DCJ:    Well, the magistrate had before him a lawyer representing a party, and on the other side, there's a person in person without a lawyer.
LANSELL, MR:     No, no, both parties were unrepresented, sir.
FENBURY DCJ:    All right. I see.
As counsel submitted at the hearing a magistrate hearing a matter such as this must remain impartial. Of course this is the duty of every judicial officer. However it extends to being careful not to give any impression of a lack of impartiality.
Balanced against this however are the clear words of s 29(4) of the Magistrates Court (Civil Proceedings) Act.
Having considered the matter it seems to me that the magistrate could have informed himself on the question of the incorporation of Decorative Concrete Services Pty Ltd quite simply and efficiently there, in court, in front of the parties, by utilising a computer or even a mobile telephone to Google or otherwise obtain the information from the internet. At that stage certification would not be required. He would merely have been looking for evidence of the existence of documentation that evidenced incorporation of the entity.
At the risk of expecting too much I think that, in the circumstances of the case as they presented, and given what Mr Mills had been trying to put forward, the magistrate should have thought fit to so inform himself on the matter as permitted by s 29(4). He could have done so by accessing the internet as described in the court or with notice in his chambers.
It follows therefore that in my view this appeal should succeed and Mr Mills be enabled to pursue or renew his application to have the default judgment set aside.