Mowday v Shire of Merredin
[2013] WASCA 182
•24 JULY 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | MOWDAY -v- SHIRE OF MERREDIN [2013] WASCA 182 |
| CORAM | : PULLIN JA |
MURPHY JA
| HEARD | : | 24 JULY 2013 |
| DELIVERED | : | 24 JULY 2013 |
| PUBLISHED | : | 9 AUGUST 2013 |
| FILE NO/S | : | CACV 47 of 2013 |
| BETWEEN | : COLIN FRANCIS MOWDAY |
Appellant
AND
SHIRE OF MERREDIN
Respondent
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : DEANE DCJ | ||
| Citation |
| ||
| File No |
|
[2013] WASCA 182
Catchwords:
Appeal - Application to dismiss appeal - Costs of appeal disproportionate to the claim
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)
Result:
Application for further extension of time to file appellant's case dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr M Wilson |
Solicitors:
| Appellant | : | In person |
| Respondent | : | CS Legal |
Case(s) referred to in judgment(s):
Mowday v Shire of Merredin [2013] WADC 59
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
[2013] WASCA 182
REASONS OF THE COURT
REASONS OF THE COURT: On 24 July 2013, this appeal was dismissed with costs, with reasons to follow. These are the reasons.
2 The appeal was listed for hearing to consider the respondent's
application that the appeal be struck out under s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) on the grounds that the likely costs of the appeal were disproportionate to the amount of the claim in, or the nature of, the case the subject of the appeal. In addition, a registrar's notice was issued requiring the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) for failure to comply with the Court of Appeal Rules , namely the rule requiring the appellant to file the appellant's case.
3 The background is that the respondent took legal action against the
appellant to recover outstanding rates and service charges payable by the appellant to the respondent in respect of a property at Merredin. The appellant is the registered proprietor of the property. The claim was for the sum of $1,215.29.
4 On 19 May 2010, the appellant filed a counterclaim claiming a
repayment of refuse removal fees, refuse site maintenance fees and waste management levy fees, which the appellant alleged were unlawfully imposed between 1997 and 2008. The counterclaim was for the sum of $1,352.50.
On 2 February 2011, the appellant amended his counterclaim so that the only remedies sought were for:
(a) judicial review and a declaratory judgment as to whether the respondent acted within its jurisdiction under the Health Act 1911 (WA) when it imposed charges relating to waste collection and disposal; (b) a further declaratory judgment as to whether the appellant was liable for further payments in respect of the respondent's claim, and whether any monies already paid could be set off against the respondent's claim. 6 On 9 March 2011, a magistrate entered judgment against the
appellant on the claim for the sum of $1,169.33, plus interest and costs,
and the counterclaim was dismissed.
[2013] WASCA 182
REASONS OF THE COURT
7 The magistrate gave reasons for those orders. The magistrate noted
that the appellant did not raise any issue in respect of his liability to pay that portion of the claim relating to rates on the property, or the emergency services levy (ESL). The magistrate noted that the appellant's issue concerned the waste collection and disposal fee, a waste management charge and the domestic recycling fee. The appellant argued that the respondent had no power to charge those fees. The magistrate gave reasons for dismissing all of the legal arguments raised by the appellant, and concluded that the appellant had no reasonable prospect of succeeding, either in his defence of the claim or in his counterclaim.
8 The appellant then appealed to the District Court. That appeal was
dismissed for the reasons which appear in Mowday v Shire of Merredin [2013] WADC 59. In the District Court, the appellant again admitted that he had to pay the property rates and the ESL. The appellant informed this court that about two thirds of the judgment sum was constituted by the rates and the ESL. Thus, the amount he disputed was approximately $400.
9 In the Magistrates Court and in the District Court, orders have been
made that the appellant pay costs to be taxed if not agreed. The bills of costs that have been prepared by the respondent and not yet taxed, claim costs and disbursements in excess of $11,000 for the Magistrates Court proceedings, and of nearly $9,000 for the District Court appeal.
10 As to the proceedings in this court, the appellant filed a draft bill of
costs indicating the costs and disbursements which the respondent had calculated would be included in a bill of costs for taxation if the appeal proceeded and was dismissed. The estimated total costs and disbursements were $16,133. We note that this included a filing fee of $5,427 for a respondent's case. This would have only been necessary if the respondent had instituted a cross-appeal, which it indicated on the respondent's notice of intention that it did not intend to do. However, the draft bill also included a preparation fee of $2,816, which would have been payable by the respondent if the appellant had filed an appellant's case and the respondent had been required to file a respondent's answer. That was apart from legal fees associated with settling the appeal book index and preparing and appearing on the appeal. Those costs were estimated to exceed $6,000 (as part of the total of $16,133).
11 By the time of the hearing on 24 July 2013, the appellant had not yet
filed an appellant's case, although it was due 35 days after the filing of the
[2013] WASCA 182
REASONS OF THE COURT
appeal notice, which occurred on 13 May 2013. See Court of Appeal
Rules, r 32(2)(b).12 The appellant had previously applied for an extension of time to file
the appellant's case, saying that he was stressed and required an extra seven days from 17 June 2013. On 20 June 2013, a registrar made an order extending time to 24 June 2013 for the appellant to file the appellant's case.
13 On 24 June 2013, the appellant filed a further application for an
extension of time to file the appellant's case. The appellant said that he had underestimated the 'enormity' of the task of preparing the case. The registrar ordered an extension of time to 1 July 2013. On 8 July 2013, a further application was made by the appellant. The appellant sought an extension to 17 July 2013 to file the appellant's case.
14 On 9 July 2013, a registrar made an order that the time for the
appellant to file and serve the appellant's case be extended to 17 July 2013. The registrar also ordered that if the appellant failed to comply with that order, the parties were to attend before the Court of Appeal on 24 July 2013 for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g) of the Court of Appeal Rules for failure to comply with the Court of Appeal Rules.
15 The appellant did not file an appellant's case by 17 July 2013, nor did
he file one by the time of the hearing on 24 July 2013. The appellant was
therefore required to show cause why the appeal should not be dismissed.16 When the appeal was called on for hearing on 24 July 2013, the
appellant sought a further extension of time to file the appellant's case. An affidavit filed in support on 24 July 2013 deposes that the appellant suffers from disabilities which increase his levels of stress and anxiety and limit his capacity to work to three hours per day. That may be so, but the appellant was articulate, showed a good understanding of the process which had taken place and was entirely familiar with the dates of the orders made by the court granting earlier extensions, and had a good grip on what had happened in the proceedings. The appellant did not in the affidavit suggest when he might be ready to file the appellant's case.
17 As already mentioned, the appellant said that he did not dispute two
thirds of the judgment sum. As also mentioned, this means that the appeal concerned a claim to have the disputed part of the judgment, that is, approximately $400, set aside.
[2013] WASCA 182
REASONS OF THE COURT
The respondent's application to strike out the appeal under s 43(3) of the
Magistrates Court (Civil Proceedings) Act 2004
18 The statutory framework and the power of the court to strike out an
appeal when costs of the appeal are disproportionate to the claim were discussed in Tey v Optima Financial Group Pty Ltd [2010] WASCA 219 [16] - [27].
19 Section s 43(3) of the Magistrates Court (Civil Proceedings) Act provides two separate and distinct bases upon which a court may strike out an appeal. It may do so because the costs of appeal are disproportionate to the amount of a claim, or it may do so because the costs of the appeal are disproportionate to the nature of the case. The discretion is enlivened once either limb is made out. It is an unfettered discretion to be exercised according to the justice of the case: see Tey [26].
20 The appellant was unrepresented in this appeal, and has been
unrepresented throughout the proceedings. The appellant informed the court that the case was not about the money claims, but about his allegation about alleged 'improper exercise of power' by the respondent. He alleged in his affidavit sworn 24 July 2013 that this was a 'systematic problem across the State'. Whether the appellant realises it or not, the case was about the claim for a money sum by the respondent which has resulted in a judgment. The appellant seems to have become involved in the litigation on the basis of some misplaced wish to establish what he thinks is a point of principle.
21 The appellant did not comply with the rules and orders of the court
and there was every indication that, if the appeal proceeded, it would be conducted in an irregular fashion with costs likely to increase as a result. The costs associated with this appeal were clearly disproportionate to the amount of the claim.
22 The appellant's application for a further extension of time in which to
file the appellant's case was dismissed. There was nothing in what the appellant said orally, and nothing in the affidavit filed by the appellant on the morning of the hearing, which justified any further extension of time, particularly bearing in mind the appellant's contention that he was not concerned with the money involved, but rather to establish his point of principle. The appellant's failure to comply with the order of the registrar to file the appellant's case also justified dismissal of the appeal.
[2013] WASCA 182
REASONS OF THE COURT
23 As a result, pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act and r 43(2)(g)(ii) of the Court of Appeal Rules, the appeal was dismissed.
2
0
2