Mueller v PSAL Pty Ltd
[2015] WASCA 48
•12 MARCH 2015
MUELLER -v- PSAL PTY LTD [2015] WASCA 48
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 48 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:149/2014 | 2 FEBRUARY 2015 | |
| Coram: | MURPHY JA | 12/03/15 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KARL PAUL MUELLER PSAL PTY LTD |
Catchwords: | Practice and procedure Application for a stay of orders of the primary court Application for leave to submit further documents in the appeal Appeal commenced out of time Inadmissible medical evidence |
Legislation: | Bankruptcy Act 1966 (Cth), s 52(2) Magistrates Court (Civil Proceedings) Act 2004 (WA), s 42 Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 32 |
Case References: | Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Butler v Bennett [2007] WADC 107 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 Legge v Simonsen [2010] WADC 190 Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 Mueller v PSAL Ltd [2014] WADC 42 Regan v Gibson [2010] WADC 144 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MUELLER -v- PSAL PTY LTD [2015] WASCA 48 CORAM : MURPHY JA HEARD : 2 FEBRUARY 2015 DELIVERED : 12 MARCH 2015 FILE NO/S : CACV 149 of 2014 BETWEEN : KARL PAUL MUELLER
- Appellant
AND
PSAL PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
Citation : MUELLER -v- PSAL LTD [2014] WADC 42
File No : APP 8 of 2013
Catchwords:
Practice and procedure - Application for a stay of orders of the primary court - Application for leave to submit further documents in the appeal - Appeal commenced out of time - Inadmissible medical evidence
Legislation:
Bankruptcy Act 1966 (Cth), s 52(2)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 42
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 32
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr M A Stork
Solicitors:
Appellant : In person
Respondent : Smith Leonard Fahey
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Butler v Bennett [2007] WADC 107
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Legge v Simonsen [2010] WADC 190
Magjarraj v Asteron Life Ltd [2009] NSWSC 1433
Mueller v PSAL Ltd [2014] WADC 42
Regan v Gibson [2010] WADC 144
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
1 MURPHY JA: This matter came before the court on 2 February 2015 by way of a registrar's notice to attend dated 23 January 2015, to consider the appellant's application for a stay dated 8 January 2015. The terms of the application are as follows:
[A] Suspension Order as per Civil Judgment Enforcement Act 2004, Section 15, 1(b) a court that is dealing with an appeal against the judgment
• Stay of the Magistrates Order
• Stay of the District Court Order
• Section 15, 3 of the Act states that: On such an application, the court may only make such an order if there are special circumstances that justify doing so, these are outlined in the Affidavit lodged with this Application
• Costs be in the cause.
2 The appellant is self-represented, and I have endeavoured to make due allowance in that regard: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
3 The appeal within which the application is brought is against a decision of Eaton DCJ delivered 9 April 2014: Mueller v PSAL Ltd [2014] WADC 42. On 19 March 2014, his Honour heard an appeal brought by the appellant against a decision of Magistrate Bromfield on 7 January 2013. The magistrate had found in favour of the respondent on a general procedure claim brought by the respondent in contract. The magistrate ordered judgment in the sum of $10,738.65 in favour of the respondent, plus interest.
4 (All references to paragraph numbers are to the reasons of Eaton DCJ unless stated otherwise.)
An overview of the of the general background and litigation between the parties
5 The materials filed in relation to the application indicate that, in addition to the proceedings in the Magistrates Court and the appeal to the District Court, there is also related litigation in the General Division of this court, and proceedings in the Federal Circuit Court of Australia.
6 In order properly to understand the material filed in relation to the application, it has been necessary to consider the District Court file and the Magistrates Court file. The following background in [7] - [21] is taken from the appellant's affidavit in the Magistrates Court dated 31 August 2010, and the documents to which it referred.
7 The appellant was at all material times the registered proprietor of a property in William Street, Midland. The property next door became available for sale and he wished to buy it. In late July 2009, he contacted his mortgage broker with a view to obtaining short-term finance to purchase the property. The broker suggested that he make an application to the respondent. The appellant completed a 'Finance Application' for submission to the respondent. The Finance Application indicated that the proposed loan was predominantly for business and investment purposes. Attached was a statement of the appellant's assets and liabilities. The statement disclosed that the appellant owned eight properties in and around Perth, including at Toodyay, as well as paintings worth $100,000. The appellant said that he did not receive legal advice before completing the Finance Application.
8 On or about 1 September 2009, he received a letter of offer from the respondent headed 'Formal letter of offer for mortgage loan'. The letter of offer included the following terms: the 'Mortgage Manager' was the respondent and the 'Lender' was Balani Pty Ltd; the loan amount would be $326,673; the loan would be for a period of 4 months; and the security for the loan would include three specified properties and a car.
9 The letter of offer stated:
In the terms below, 'we' and 'our' and 'us' refer to the Mortgage Manager and the Lender.
10 The letter of offer also provided:
You must pay all of our costs and disbursements concerning this loan transaction, these include the loan application/processing fee.
You are responsible for and must pay all expenses which we incur in connection with this transaction, including the valuation fees and legal fees, even if the transaction is not settled, and regardless of whether it is you or us who withdraws from the transaction.
Also you must pay the legal fees, registration fees and other costs which we incur or are payable relating to the management of the loan, repayment of the loan and discharge of the security. All fees once due are non refundable.
11 The letter of offer also provided:
A All Borrower(s) … need to sign this Formal Letter of Offer & Proposed Loan Summary documents and return the original to us or our solicitor prior to settlement.
…
E Borrowers to provide details of their solicitor.
F Borrower(s) to obtain independent legal advice.
12 There were also 'other conditions' including:
7 You … separately charge in our favour all your property (including property acquired after you have accepted this letter) as security for the payment of the fees and expenses payable under this letter, and acknowledge that we may lodge a caveat or other instrument on the title to that property to note our interest under that provision.
8 You … also separately charge in our favour (including property acquired after you have accepted this letter) as security for the payment of any fees, interest, legals, stamp duty, recovery costs and expenses payable under the terms & conditions of the loan and this letter, and further acknowledge that we may lodge a caveat or other instrument on the title to that property to note our interest under this provision.
13 The letter of offer concluded:
To accept this offer:
• [Y]ou must sign the acceptance form on the attached duplicate of this letter and initial at the bottom of all other pages; and
• [Y]ou must return the original signed letter, we advise that you keep a duplicate of this letter for your own records.
• To assist with faster processing you may forward a copy of this letter by facsimile.
• If you return a facsimile only of this letter, then you must return to us the signed original prior to settlement.
14 The letter of offer also contained a page headed, 'Agreement & direction to proceed', in the following terms:
The Borrower … agree[s] that:
1. In consideration of the borrower's acceptance of the loan offer, I … request PSAL Limited to carry out searches and enquiries regarding the security and to arrange preparation of the loan documentation.
2. I … acknowledge that PSAL Limited will carry out the above steps and incur expenses at our express request.
3. I … agree to charge all of our land, in particularly the security referred to in the Letter of Offer dated 1.09.09 for payment of any and all expenses incurred by PSAL Limited in carrying out the above including legal fees and disbursements.
4. I … acknowledge that this agreement to charge the land is not contingent on the advance of the loan from PSAL Limited and this agreement shall remain enforceable against the land if the loan advance is not made for any reason, including if the loan is withdrawn by PSAL Limited.
5. I … also acknowledge that any amount payable by me … to PSAL Limited will incur interest at the rate of sixty (60) percent per annum.
15 Mr Mueller deposed in effect that he signed the letter of offer and provided therein details of his solicitors. He then faxed the signed copy to the respondent on or about 1 September 2009. He said that he had not been advised by his solicitors prior to executing the document.
16 The respondent's solicitors prepared loan mortgage documents which the appellant collected on about 2 September 2009. He completed the documents and returned them to the respondent's solicitors later that day. He did not receive any legal advice prior to signing those documents.
17 On or about 4 September 2009, the respondent's solicitor contacted the appellant and advised him, in effect, that the documents needed to be signed in the presence of a solicitor who had explained the documents to the appellant. The respondent's solicitor requested the appellant to attend her office again to collect a second set of documents for the purpose of the appellant obtaining legal advice from a solicitor.
18 On or about 7 September 2009, the appellant collected the further set of documents from the respondent's solicitors. He sought legal advice. On or about 9 September 2009, he received legal advice to the effect that he should not execute the documents. Upon receiving that legal advice, the appellant informed the respondent's solicitors that, based on that advice, he had decided not to return a signed set of documents to the respondent.
19 At no time were funds advanced to the appellant by the respondent or Balani Pty Ltd.
20 On 16 November 2009, the appellant received an email from the respondent containing an invoice seeking payment of $9,893 being:
(a) $850 for loan diligence, research fees and searches;
(b) $6,533 for loan processing fees and charges; and
(c) $2,510 for legal fees for loan and mortgage document preparation.
21 The appellant deposed that he did not consider that the respondent had provided a properly detailed itemisation of the invoice, and that he first became aware that the respondent was charging interest at the rate of 60% per annum upon receipt of the respondent's claim in the Magistrates Court, referred to below (appellant's affidavit pars 34 - 35, 31/08/10).
22 The respondent commenced the proceedings in the Magistrates Court, alleging that the appellant had agreed to pay the amounts invoiced by his execution and return of the letter of offer on or about 1 September 2009. The respondent's Statement of General Procedure Claim in the Magistrates Court was filed on 15 January 2010.
23 There was an application for summary judgment by the respondent in 2010. The appellant was represented by solicitors at the time. In submissions dated 3 September 2010, the appellant's solicitors raised, amongst other things, the question of whether equity might set aside the transaction on the basis of unconscionable dealing (par 23) and whether, in any event, the interest provision was unenforceable as a penalty (pars 47 - 55). It appears that the application for summary judgment was dismissed, but subsequently the appellant did not purport or seek to claim any equitable or statutory relief in relation to the transaction in the event that the court ultimately found that a binding agreement at law had been entered into on or about 1 September 2009.
24 The appellant did contend, however, that he did not understand what he was signing (see [29] below).
25 In the Magistrates Court, the appellant filed a defence and a counterclaim.
26 The defence, dated 18 March 2011, was in the following terms:
Summary of the facts relevant to the defence:
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Legal basis of the defence:
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The basic contentions of the party:
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Details of anyone who the party alleges is liable for the claim and the grounds upon which the party so alleges:
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27 The counterclaim, dated 8 July 2011, alleged that the respondent had improperly lodged a caveat on the appellant's properties in Toodyay. The appellant sought compensation for the alleged improper lodgement of the caveat.
28 The matter eventually came on for hearing before Magistrate Bromfield on 29 November 2012. The matter was part heard that day and was completed on 7 January 2013.
29 At the hearing before the magistrate, the magistrate noted that the appellant had also commenced proceedings in the General Division of the Supreme Court in relation to the caveat. According to Eaton DCJ, the magistrate dismissed the counterclaim [11]. (This is disputed by the appellant, as discussed later in these reasons.) At the hearing on 7 January 2013, there was the following exchange:
The appellant: Because I'm a layperson, I don't understand a contract of that significance and I should have had legal advice as they request I should have had, but they went ahead without me having legal advice.
…
His Honour: Went ahead to do what without you having legal advice?
The appellant: To prepare a contract - a loan contract and then I was told by their solicitor that - don't worry about submitting the originals of that letter of offer and - because this contract supersedes that. But then the contract was rejected by Balani Pty Ltd because I didn't have legal advice on it, and I believe all parties have to understand what they are signing and I obviously didn't.
His Honour: Why do you say it's obvious that you didn't understand what you were signing?
The appellant: Because I would have thought that if you are requested to have legal advice on a contract - a loan contract, you also needed to have legal advice on something that commits you to put in $15,000 or whatever.
…
The appellant: To the letter of offer. That's something I didn't understand that I - I was - if I didn't go ahead with the contract that I was still obliged to pay an amount of I think it was $11,000.
…
The appellant: Yeh … it makes the legal advice - if the legal advice says, 'Don't do the contract' then you are still liable and I think that's why I have been told - well, that's why I believe they want the charge on my car as well. So even if the whole thing falls through they have got something to sell to get this money. Because it's very unusual for a loan ratio of 60% to still want the car as your charge on a car as well. It was a very confusing time for me. I was torn between - I wanted the place next door and then that - the caveat was on my property and it was just incredibly confusing (ts 138 - 139, 07/01/13).
30 The magistrate delivered extempore reasons for judgment on 7 January 2013. The magistrate gave judgment in favour of the respondent on the basis that the appellant had entered into an agreement on or about 1 September 2009 as alleged by the respondent. Amongst other things, the magistrate said:
Now, pursuant to the terms of the formal offer, there was to be a significant rate of interest of 60% per annum on unpaid fees. The defendant's position, if I can make sense of it, is that he suggests without any formal assistance as to the basis of the suggestion that this liability incurred was a matter that he didn't fully understand and that he was required to obtain independent advice before it could be in force.
That's simply a position that is untenable. The evidence clearly shows in accordance with the terms of the contract … that he embarked upon this process, executed the acceptance … and as a result has become liable for the fees which remain unpaid (ts 175, 07/01/13).
31 Judgment was entered in the sum of $10,738.65 (which included an interest component up to the date of judgment), plus interest thereon calculated at 60% per annum.
32 There followed the appeal to the District Court. It would appear that the appellant obtained a stay of Magistrate Bromfield's orders on 18 June 2013 pending the disposition of the appeal to the District Court.
33 The appeal to Eaton DCJ was heard on 19 March 2014. Eaton DCJ delivered judgment on 9 April 2014. His Honour dismissed the appeal and lifted the earlier stay. The details of the appeal are set out later in these reasons.
34 The judgment sum was not paid.
35 The respondent subsequently commenced bankruptcy proceedings in 2014 against the appellant in the Federal Circuit Court. I was informed by the respondent, without dispute by the appellant, that in relation to the bankruptcy proceedings, the total unpaid judgment debt, on which the respondent relied, including accrued interest, then stood in the sum of approximately $30,000 (ts 18 - 19).
36 On 15 January 2015, Registrar Jan of the Federal Circuit Court made orders to the following effect:
• the respondent's petition be adjourned to 23 March 2015 on condition that the appellant proceed expeditiously in his appeal and other applications in the Supreme Court of Western Australia;
• each party may apply to relist the petition on giving 48 hours' notice.
37 In the meantime, the appellant had commenced proceedings on 16 August 2012 in the General Division of the Supreme Court CIV 2388 of 2012. The re-amended statement of claim, dated 21 February 2013, is in the following terms:
1. On September 1st, 2009 the plaintiff signed a Letter of Offer with the defendant as the first step to apply for a short term caveat loan to buy 10 William Street, Midland WA 6056, the property next door to the plaintiff's business, Café Mueller Midland, 12 William Street, Midland WA 6056.
2. [A solicitor] of Galilee Solicitors, Perth, the defendant's solicitor at the time, then put in an application for a caveat on the plaintiff's properties, 44 and 46 Telegraph Road, Toodyay 6566. This caveat was entered on my properties on October 5th, 2009. The caveat was for an equitable mortgage to Balani Pty Ltd, the potential lender, absolute, based on an unsigned Loan Agreement. No money was ever paid to the plaintiff.
3. The plaintiff claims because of the improper lodgement of the caveat and the persistent claim by the defendant that it was not improper, he missed out on buying the property next door to his restanrant [sic].
4. The purchase price for the property was $325.000. The Vendor in a Variation of Contract dated 11.7.09 allowed the plaintiff to clear out the property of huge amount of rubbish and do some work to increase the value of the property to $390.000.
5. The plaintiff claims that because of the refusal of the defendant to withdraw the Improper Caveat he caused the plaintiff to loose [sic] the property as he could not use his equity in his properties blocked by the caveat.
6. The plaintiff lost the property and thus the advantage of the work he had done to it.
7. The plaintiff claims the amount of $65,000 being the amount he would have gained in assets just by settling the property with a purchase price of $325,000 and a sworn valuation of $390.000.
8. The plaintiff is claiming the sum of $220 being the fee paid to Landgate to remove the Improper Caveat No: L096227, where Balani Pty Ltd is entered as the Caveator for an Equitable Mortgage, Absolutely. The plaintiff will not claim this amount in his Appeal in the District Court of Western Australia.
38 In completing this review of the litigation between the parties, I would add, as noted earlier, that the appellant did not purport to raise the question of any equitable or statutory relief in relation to the transaction in the Magistrates Court. Nor was there any claim for such relief mentioned in the appeal to Eaton DCJ, even though matters of that kind had been foreshadowed in 2010 in the appellant's resistance to the application for summary judgment.
39 Nor does it appear that any proceedings have been commenced in the General Division of the Supreme Court seeking equitable or statutory relief in relation to setting aside the transaction (or any of its terms) upon which the respondent sued and obtained judgment in the Magistrates Court. Presumably, had any such claim for relief been raised in the General Division of this court after the determination of the litigation in the Magistrates Court, the respondent may have raised a plea of abuse of process and/or Anshun estoppel (as to the potential merits of which I make no comment).
The Magistrates Court and District Court proceedings
Magistrates Court Proceedings
40 Eaton DCJ described the proceedings in the Magistrates Court as follows [9] - [12], [34], [36]:
In this matter the solicitors for PSAL Ltd filed written submissions and provided copies of decisions said to be relevant under cover of a letter to the court dated 14 March 2014. Mr Mueller presented written submissions on the morning of 19 March 2014. Neither party filed the requisite list of documents.
The background to this matter is that on 15 January 2010 PSAL Ltd filed a general procedure claim in the Magistrates Court at Perth seeking an amount of $13,706.63 from Mr Mueller pursuant to the terms of a written agreement between them. Mr Mueller defended the claim and filed a statement of defence on 2 June 2010. The claimant applied for summary judgment. That was dismissed by Magistrate Cockram on 9 July 2010.
On 18 March 2011 Mr Mueller filed a counterclaim seeking $65,421.30. He then sought default judgment on the counterclaim. That was dismissed by Magistrate Boon on 4 January 2012. On 19 July 2012 Mr Mueller discontinued part of his counterclaim. On 26 September 2012 the matter was listed for trial for one day on 29 November 2012. On that day the counterclaim was dismissed.
…
The trial before Magistrate Bromfield began on 29 November 2012 at 10.15 am and at 5.08 pm was adjourned to 13 December 2012. On that day the matter was re-listed for further hearing on 7 January 2013. On that day the hearing continued at 10.13 am and concluded at 1.14 pm.
...
The claim by PSAL Ltd against Mr Mueller is for $13,023.43 being the costs and expenses of the claimant incurred in the transaction. On 2 June 2010 Mr Mueller filed a statement of defence to the claim. As to the factual basis of his defence he said: 'The defendant negotiated a caveat loan via a broker with the claimant. Negotiations were never completed as the claimant withdrew the loan offer'. As to the legal basis of his defence Mr Mueller submitted that he received legal advice not to submit the loan documents. He submitted further that facsimile copies and other copies are not 'legal documents', that the claimant had not followed the law and that the claimant's actions were unlawful.
…
The learned magistrate concluded that PSAL Ltd was entitled to a judgment in the sum of $10,738.65 comprising a loan processing fee of $6,533, legal fees of $2,510, a research fee of $850, totalling $9,893 with interest thereon in the sum of $845.65. It is clear that the learned magistrate calculated interest based on a rate of 60% per annum which he calculated to be $16.262465 per day for 52 days. The judgment sum was $10,738.65. So far as I can tell, no challenge is made to the magistrate's quantification of the amount arrived at or his calculation of interest by either party to the appeal. The appellant seeks to overturn the judgment and the respondent seeks to maintain it.
41 In relation to the matter concerning the counterclaim (referred to by Eaton DCJ at [11]), the transcript before the magistrate on 29 November 2012 includes the following:
His Honour: So you're not actually discontinuing the counterclaim at all, but you're seeking to reduce the amount claimed by way of counterclaim, but haven't said to what amount?
The appellant: Yeh, just a fee that I had to pay.
His Honour: Since I don't know what the fee is, that's why I've said you haven't said.
…
His Honour: So you don't want to discontinue the counterclaim at all? The basis of the counterclaim continues[?]
The appellant: Yeh, that's what I said on the form, part of the counterclaim, I am withdrawing, but because the forms, they were strange, that you can actually put on the form - - -
His Honour: It's not, you see. If you bring a counterclaim because of three issues and you discontinue two of them, there might be a consequential - - -
The appellant: Only one of them I'm discontinuing.
His Honour: There might need to be a consequential application to reduce the amount claimed. I'm just saying that you are partially discontinuing the counterclaim, but the cause of action remains the same.
The appellant: Yes.
His Honour: You say it's the improper lodgement of a caveat.
The appellant: Improper lodgement, yes.
His Honour: Yes.
The appellant: It wasn't based on the legal document, and it was an equitable absolute mortgage which didn't exist.
…
The appellant: But it's in the Supreme Court now.
His Honour: So you've now got two proceedings?
The appellant: It's not by choice. I had no - - -
His Honour: You've got two proceedings arising out of the same cause of action. One in the Supreme Court.
The appellant: Yes.
His Honour: And one in this court.
…
His Honour: But you're now litigating the same issue in two courts.
The appellant: Not the fee, I'm not.
His Honour: The issue being the improper lodgement.
The appellant: Yes.
His Honour: You're claiming damages in one court and damages in the other court, albeit different damages.
The appellant: But I can withdraw the 220 then and just leave it all in the Supreme Court. I'm willing to do that.
…
The appellant: I was given and now I can't prove that but I was given the wrong information by Landgate. The officer there told me that this court could do it.
His Honour: It really doesn't matter. The source of the quality of your advice is irrelevant, but if you are bringing proceedings.
…
His Honour: I don't for a moment doubt your bona fides but there are consequences.
The appellant: Yes, but if I leave - why can't I leave this indisputable fee? Because if I can prove that the - there was no - - -
His Honour: Let's accept that you have incurred the fee $229.
The appellant: Yes.
His Honour: The course of action you are now accepting is a course of action that this court doesn't have jurisdiction to entertain.
The appellant: I still don't quite understand sir.
His Honour: You have incurred a fee of $229.
…
His Honour: I assume that you acknowledge, as you assert, that you also suffered damages as a result of the caveat and you are litigating those damages.
The appellant: Yes.
His Honour: Is the fee of $229 not part of your damages for what you say is a wrongful registration of a caveat[?]
The appellant: But it's a - - -
His Honour: … [A]n encumbrance on your title to land?
The appellant: It's a part that this court can deal with because - - -
…
His Honour: It seems, and I haven't seen the Supreme Court proceeding, but it seems that you are litigating the same issues.
The appellant: Yeh, I'm not claiming the title in the Supreme Court.
His Honour: I understand that but the cause for your claim for the fee is the same as that which you are claiming in the Supreme Court, and which now that you have had the opportunity to read section 140 of the Transfer of Land Act is suggested can be dealt with by a judge - I'm not a judge - - -
The appellant: No, but I just want to point out again - sorry, your Honour - that I acted on the submission that Mr Stubbs made and I - when he said this court here has no jurisdiction to deal with the improper lodgement of a caveat. That's why I moved it because I wanted - - -
His Honour: No, but you didn't move at all did you?
The appellant: Yes I did. It's in the Supreme Court.
His Honour: But it's in this court too, isn't it? Isn't that what we've spent the last half an hour discussing?
The appellant: Only part, only the part of it.
…
His Honour: So isn't it the same thing? The cause of action that you're bringing in the Supreme Court is the same cause of action you're bringing in this court, but you're claiming for the tail lightbulb in this court and you're claiming for the rest of the car in the other court.
The appellant: I understand. If I withdraw this counterclaim completely, what bearing will that have on your judgment?
His Honour: Well, it will enable us to address the issues of the claim.
The appellant: Okay, I'll do that then.
His Honour: Of course it's too late to discontinue the counterclaim. There's no provision to withdraw the claim, but if it is the case that you're indicating that you're offering no evidence, effectively abandoning the counterclaim, the court can make an order of dismissal without us wasting further time on those issues at this trial.
The appellant: Yes.
His Honour: So is that what you're intending to do?
The appellant: But that doesn't mean I can't continue in the Supreme Court, does it?
His Honour: I can't see that - - -
The appellant: That's what I - - -
His Honour: - - - [Y]our actions in not presenting any evidence and allowing the court to dismiss is going to have any bearing on the propriety or otherwise of the proceedings elsewhere.
The appellant: Okay.
His Honour: But I can't give you advice.
The appellant: No, I understand that.
His Honour: Do you understand that?
The appellant: Yes, I do.
…
His Honour: No. Thank you. The court makes an order no evidence being offered, that the counterclaim be and is dismissed (ts 7 - 18, 29/11/12).
District Court Proceedings
42 On 29 January 2013 the appellant filed an appeal notice in the District Court against the decision of Magistrate Bromfield. The appellant's grounds of appeal to the District Court were, in summary, to the following effect.
43 By ground 1, the appellant alleged that the magistrate erred in starting the trial 'without proper preparation'. Reference was made to the transcript before the magistrate on 29 November 2012 at page 2, where the magistrate said:
Gentlemen, I apologise for keeping you waiting. Due to an administrative aberration, I was given the trial file and I haven't actually finished reading this file. I've done my best. However, that explains my delay. Yes?
44 (Although not referred to by the appellant, the magistrate shortly thereafter said, 'I do need another 15 minutes to have the opportunity to wade through the material … I'm just going to adjourn for 10 to 15 minutes and then we will resume' (ts 6, 29/11/12).)
45 Ground 2 alleged that the magistrate:
erred in dealing with the [appellant]'s counterclaim for the fee of being compensated for an improper lodgement of a caveat for an equitable mortgage, absolute to Balani Pty Ltd, lodged by PSAL … The [appellant] applied to have the damages sought in the Magistrates Court discontinued but left the claim for the fee itself as it was obvious that there was no equitable mortgage.
46 Ground 3 alleged:
The magistrate erred in accepting that a statement of intended evidence in the listing conference memorandum was substituted by three affidavits plus the statement of evidence … The magistrate stated on page 24 of the transcript for the same day: 'It just gets tedious when the court sees these difficulties with these rules, where parties display incredible ingenuity to circumvent their obligations to lodge statements rather than - they can't even put the affidavits in sequential order on the way they lodged. This added to the confusion of the [appellant], the book of evidence by the [respondent] was confusing for the magistrate, he had to number pages to make sense of it, as a lay person the [appellant] found all this very unsettling and disturbing and intimidating [sic].
47 Ground 4 alleged that the magistrate 'erred in accepting the letter of offer as a legally binding document'. Reference was made to the magistrate 'being presented with a copy of a faxed copy with pages missing', and to an alteration to a document headed 'a PSAL [Ltd] estimated loan summary' (ts 106).
48 Ground 5 alleged that the magistrate erred in 'allowing the plaintiff's barrister accusing the defendant of lying on several occasions … The plaintiff's barrister had no legal right to abuse the defendant for not being in possession of the original letter of offer'.
49 Ground 6 alleged that the magistrate erred in finding that:
the plaintiff did not tell the truth when questioned by his barrister in the witness box under oath … The plaintiff had claimed that the funds for the requested loan by the defendant had been deposited into his solicitor's trust account. He had stated in previous correspondence that it was costing him interest. The defendant issued a summons to the plaintiff to produce this evidence, the magistrate erred in simply dismissing it. This was another credibility issue of the plaintiff's case.
50 Ground 7 alleged that the magistrate erred in:
not holding the plaintiff responsible to fulfil his part of the conditions of the letter of offer and the letter of acceptance. The Magistrate erred in not taking notice of the statement in the letter of offer on page 8: 'To accept this offer: point 4, if you return a facsimile only of this letter, then you must return to us the signed original prior to settlement'. This clearly did not happen … The magistrate asked the defendant, ['W]here is there a line for the solicitor to sign[?'] … This is a legal question he could not possibly be expected to answer whether there is a line … Sometimes documents get signed at the bottom of each page without a line. The Magistrate erred in stating that the requirements set out in bold letters … did not form part of the agreement and should not have ruled in favour of the plaintiff based on these points in the defendant's appeal.
51 The respondent's submissions before Eaton DCJ were contained in a document of 14 paragraphs in the following terms (annexure E1 of the appellant's affidavit, 8/01/15):
General principles
1. This appeal is brought pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 which provides that the appeal shall be conducted in accordance with the rules of court made by the District Court.
2. The appeal is by way of a reconsideration of the evidence that was before the Magistrates Court, District Court Rules 2005 (WA) r 50(1).
3. An appeal from a decision of a magistrate involving a reconsideration of the evidence is in the nature of a rehearing.
4. An appellate court hearing an appeal by way of a rehearing can exercise its appellate powers only if satisfied there was some legal, factual or discretionary error on the part of the primary decision-maker.
Grounds of Appeal
5. Ground 1
Lack of preparation on the part of the learned magistrate
(a) There is simply no substance to this ground of appeal. However even if one accepts the ground in its entirety it simply does not follow that this lead[s] to an error of law, fact or otherwise on the part of the learned magistrate and the Appellant in his grounds of appeal does not point to any such error arising from this issue.
6. Ground 2
The dismissal of the Appellant[']s counterclaim
(a) It is unclear how the Appellant contends [the] learned magistrate erred and what the complaint is in this ground, however at the end of the day the Appellant chose to offer no evidence on his counterclaim and the Appellant in any event has an action on foot in relation to the same issue in the Supreme Court.
7. Ground 3
The use of affidavits in evidence
(a) The affidavits relied upon had been provided to the Appellant during the course of the proceedings well in advance of the hearing and he was well aware of the contents of the affidavits. The deponents of the affidavits confirmed on oath the contents of their affidavits and were cross examined by the Appellant.
(b) The book of documents was provided to enable the parties and the court to have a consistent set of documents to refer to.
(c) The appellant has not demonstrated the [sic] any of these 'issues' lead to error on the part of the learned magistrate in his decision.
8. Ground 4
The letter of offer is not a legally binding document
(a) The Appellant provides no basis on which to conclude that the letter of offer was not a 'legally binding document [sic].
(b) It was clear that the Appellant signed the letter of offer, faxed a signed copy to the Respondent and then acted upon it and induced the Respondent to act upon it.
9. Ground 5
Accusation of lying made against the Appellant in cross examination
(a) This ground is without substance since it is essential that the Appellant[']s evidence be tested.
(b) If the Respondent intended to rely on the unreliability of the Appellant[']s testimony to the extent of suggesting that the Appellant was not being truthful in his evidence it was necessary this be put to him. In any event the Appellant denied he was lying.
10. Ground 6
It is not clear what the basis of this ground is since it contains numerous incongruous/incomprehensible parts.
11. Ground 7
This ground seems to be 2 maybe 3 rolled up grounds which seem to be that the learned magistrate erred in that:-
(a) The Respondent was not held to perform its side of the contract;
(b) The contract required the Appellant to send the original back to the Respondent prior to settlement; and
(c) That the contact [sic] required signing by the Appellant[']s solicitor before it became binding.
12. 7(a) has no substance.
13. 7(b) has no substance but in any event even if it did the original was to be provided at or prior to settlement an event that did not occur because the Appellant failed to provide the documents evidencing the loan prepared subsequent to his return of the letter of offer.
14. 7(c) has no substance since it is clear this is not the structure of the letter of offer nor the way in which it is to be read.
52 Paragraph 3 of the above submissions was footnoted by reference to Legge v Simonsen [2010] WADC 190 [4]; Regan v Gibson [2010] WADC 144 [7]; Butler v Bennett [2007] WADC 107 [5] - [10]. Paragraph 4 of the above submissions was footnoted with reference to Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]; and Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14]. All of these cases were attached to the submissions sent to the appellant prior to the hearing before Eaton DCJ.
53 Eaton DCJ described the grounds of appeal as follows:
The notice of appeal has seven grounds of appeal. The first alleges that Magistrate Bromfield erred in that he commenced hearing the matter 'without proper preparation'. The third ground of appeal appears to complain about what were pre-trial procedural matters. The remaining grounds of appeal are not succinct and represent a mixture of complaints about certain findings by the magistrate, his conduct of the trial and the conduct of counsel for the respondent, Mr Stubbs. For example, ground 5 alleges that the magistrate erred in allowing the claimant's barrister (Mr Stubbs): 'accusing the defendant of lying on several occasions including of lying under oath as documented of [sic] page 111 of the transcript dated 29/11/12'. That error, asserts the appellant 'further unsettled the defendant and he felt intimidated and threatened and without protection' [2].
54 In relation to the events leading to and at the hearing on 19 March 2014, his Honour said:
On 18 June 2013 Deputy Registrar Hewitt listed the appeal for hearing for one day on 23 October 2013, stayed the judgment in the Magistrates Court until further order and gave liberty to apply.
On 21 October 2013 Mr Mueller applied to adjourn the hearing to allow him time to recover from a serious motor vehicle accident. Shortly after, his Honour Judge McCann adjourned the hearing to a date to be fixed.
On 31 October 2013 the matter was administratively re-listed for hearing on 6 December 2013. That listing was vacated on the application of the appellant. The matter was administratively listed again for hearing on 19 March 2014 [3] - [5].
55 Eaton DCJ found as follows:
I find that on about 1 September 2009 Mr Mueller submitted a detailed urgent loan application dated 31 August 2009 to Foundation Finance. In doing so he agreed to pay all necessary expenses, including legal costs, incurred by PSAL Ltd in obtaining the loan, regardless of whether a loan or other financial accommodation might be provided. In consequence PSAL Ltd arranged a loan, as requested, from Balani Pty Ltd and forwarded a formal letter of offer to Mr Mueller. That offer, accepted by Mr Mueller, obliged him to pay the costs and disbursements of PSAL Ltd and all expenses incurred in connection with the transaction, including the valuation fees and legal fees whether or not funds were advanced and in the event of a party withdrawing from the transaction. There can be no doubt that Mr Mueller accepted the offer, nominating as his solicitors, Heather Watson and Associates of 29 Spring Park Road, Midland. The learned magistrate, in his extempore reasons, found that Mr Mueller gave a 'continual indication' that he wished to proceed with the loan. I agree with that finding. In fact, it is fair to conclude the Mr Mueller regarded the matter as one of urgency. It is the case that the loan did not take place but the reason for that was, firstly, the failure of Mr Mueller to properly comply with the instructions given to him as to execution of the security documentation and, secondly, his own decision not to proceed with the loan in the light of belated legal advice as to the advisability of it. Mr Mueller did not seek legal advice as to the advisability of accepting the document entitled 'Formal Letter of Offer for Mortgage Loan' [35].
56 Eaton DCJ concluded:
I agree with the magistrate's conclusion that this matter reduces to the terms of a contract made between Mr Mueller and PSAL Ltd complete upon his acceptance of the formal letter of offer for a mortgage loan. It is the case that Mr Mueller pursued the matter of raising finance to acquire the next door property as one of urgency. His haste is evident by reason of the fact that he marked the original application for finance as being urgent and further, by reason of the fact that he collected, executed and returned the first set of security documents within a space of about an hour. It seems likely to be the case that Mr Mueller would not have approached a solicitor and sought legal advice as to the terms of the loan and the documentation were it not for the requirement by the lender that he do so or waive the need to do so. The fact that the transaction did not proceed and that funds were never advanced by Balani Pty Ltd is due entirely to Mr Mueller's decision, in the light of legal advice received by him belatedly, to not execute the second set of security documentation. In other words, he decided against proceeding with the loan. In such circumstances he was bound by his agreement with PSAL Ltd to reimburse for the various expenses and charges incurred in processing the loan and production of security documents with interest thereon.
There can be no doubt that Mr Mueller found the trial in the Magistrates Court to be a difficult and distressing experience. In grounds 2, 3 and 5 the complaint of the appellant is that he found the trial process intimidating, unsettling, threatening and confusing. In the latter he took exception to being accused, in cross-examination, of lying under oath by the respondent's barrister, complaining that he 'had no legal right to abuse the defendant for not being in possession of the original letter of offer'.
There is no substance to the complaint in ground 1 that the magistrate did not properly prepare himself for the trial.
A perusal of the remaining grounds of appeal reveals that they are piecemeal complaints about aspects of the trial which do not give rise to appealable error but rather evidence, on the part of Mr Mueller, a general feeling of discontent and unfairness. Given the nature of an appeal to this court and the presentation of the appellant's grounds of appeal along with his argument at the hearing of the appeal I am not persuaded that the decisions made by the learned magistrate are the result of some factual, legal or discretionary error. Rather, the appellant's liability to the respondent is the result of the magistrate's finding of a contractual obligation on the part of Mr Mueller to pay various expenses and charges, along with interest thereon, incurred by the respondent in the wake of Mr Mueller's decision not to proceed with the loan. Having regard to the evidence before him I agree with that finding. The appeal is dismissed [38] - [41].
57 Eaton DCJ made the following orders:
1. Appeal be Dismissed
2. The stay of execution dated 18 June 2013 be lifted[.]
3. As to the question of costs, there will be a period of 14 days within which the Appellant is at liberty to file and serve written submissions in opposition to a costs order. And in the event that the Appellant does not do so within those 14 days then there will be an order that the appellant pay the respondent's costs of the appeal to be taxed if not agreed.
4. In the event of Mr Mueller (the appellant) filing and serving written submissions in opposition to the costs order foreshadowed, there [will] be a further seven days within which the respondent may file and serve written submissions.
The history of the appeal and the application
58 As noted earlier, the primary decision was delivered on 9 April 2014.
59 On 4 December 2014 the appellant filed an appeal notice. The appeal notice stated that the last date to appeal was 30 April 2014 and that an extension of time is needed. The appeal notice also states that leave to appeal is required.
60 Section 42 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) provides, relevantly:
42. Appeal from District Court to Court of Appeal
(1) A party to an appeal made to the District Court under section 40 may appeal to the Court of Appeal against the District Court's judgment on the appeal.
(2) An appeal cannot be commenced more than 21 days after the date of judgment, unless the Court of Appeal gives leave to do so.
61 Thus there has been substantial delay in the appeal to this court, and the appellant requires both leave to appeal and leave to commence the appeal out of time.
62 On 5 December 2014 the appellant swore an affidavit in support of 'Appeal Notice Civil'. The affidavit is, in effect, in support of the application for an extension of time in which to bring the appeal, and for leave to appeal (affidavit par 2, 05/12/14). It appears from the affidavit that the appellant seeks leave to appeal, and an extension of time in which to bring the appeal, for the following reasons:
(a) He had a serious accident on 25 August 2013, and the accident caused him memory loss, lack of concentration and post-traumatic stress.
(b) He has been 'battling' prostate cancer for a 'few years'. He has not had an operation, but is being monitored with regular biopsies.
(c) His partner was diagnosed with 'follicular' [sic] two weeks after the accident on 25 August 2013, and has been receiving chemotherapy since.
(d) He was not well on the date of the hearing before Eaton DCJ on 19 March 2014; he had a specialist appointment on the afternoon of 19 March 2014; the respondents were represented before his Honour at this hearing, and the solicitors served a 'whole lot of documents on [the appellant] on Monday before the hearing'.
(e) He was 'bullied' by the respondent's legal team on 19 March 2014 outside the courtroom.
(f) Eaton DCJ asked the appellant if he wanted an adjournment on 19 April 2014 but 'the nature of [his] injuries are that you don't know your limits, other people can judge them better than yourself. Based on the abuse I got outside the courtroom I asked him to go ahead although I was really [sic] fit to do that' (par 2(h)).
(g) There are a number of errors in the decision below.
(h) Due to the respondent's legal team taking 'advantage of [the appellant's] vulnerability', the appellant withdrew part of his counterclaim.
(i) The respondent has made an application in the Federal Circuit Court for a sequestration order against the appellant.
(j) He was not in a position to appeal the primary decision as he could not concentrate and could not afford a solicitor.
63 The affidavit annexed a medical certificate to the effect that the appellant had attended a medical clinic on 4 December 2014. The medical certificate refers to the car accident on 25 August 2013, the diagnosis with prostate cancer in 2010, and that the appellant had stated that he was suffering from post-traumatic stress disorder.
64 The doctor who signed the certificate states:
[I]n my opinion [the appellant] is suffering from a medical condition.
65 On 10 December 2014 the respondent filed a notice of respondent's intention, indicating that the respondent intended to take part in the appeal.
66 On 8 January 2015 the appellant filed the application referred to at the outset of these reasons. The appellant swore an affidavit in support on the same date. This affidavit annexed his previous affidavit of 5 December 2014. It also annexed the transcript of the hearing before Eaton DCJ on 19 March 2014.
67 Amongst other things the affidavit also stated, in effect, that:
(a) the appellant had been given a document comprising 127 pages on the Monday before the hearing before Eaton DCJ on the Wednesday;
(b) the appellant had seen a solicitor on the Monday before the hearing but the solicitor did not have the time to deal with the matter and be ready for a hearing on the Wednesday;
(c) there is doubt about the 'letter of offer' the subject of the Magistrates Court hearing;
(d) the appellant has commenced proceedings in the Supreme Court General Division, CIV 2388 of 2012 - the appellant describes this as the 'counterclaim' in the Supreme Court (affidavit pages 9 and 54, 08/01/15).
68 Pursuant to pt 5 r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA), the appellant's case should have been filed by 8 January 2015.
69 An appellant's case was filed on 29 January 2015. The grounds of appeal are set out later in these reasons.
70 On 30 January 2015, the appellant also filed an application seeking orders for:
• leave to be granted to submit further documents to show DCJ Eaton's arguments were wrong[;]
• costs be in the cause.
71 In support of that application, the appellant filed an affidavit dated 30 January 2015, annexing an email from the respondent dated 15 September 2009, which is said to 'support [the appellant's] claim that PSAL Pty Ltd tried to make me agree to unlawful conditions' (appellant's affidavit par 3, 30/01/15). The affidavit also annexes a copy of a driver's licence and that 'Eaton DCJ in his rejection of my appeal accepted the statement of [the respondent's then solicitor] under oath that this was never presented by me' (appellant's affidavit par 4, 30/01/15).
72 I should say here that the appellant's application dated 30 January 2015 is expressed in unorthodox terms, and I would not make an order in those terms. However, addressing what I perceive to be the substance of the application, I will take into account the appellant's affidavit of 30 January 2015 in relation to the application for a stay.
73 Finally, at the oral hearing on 2 February 2015, the appellant was given leave to file written submissions in response to the oral submissions of the respondent. (The appellant had made oral submissions in chief.) The appellant filed written submissions dated 9 February 2015. The submissions refer to the appellant's medical issues and annexed a copy of a letter from a sexual health physician dated 5 February 2015. The letter stated that the appellant had been a patient at Royal Perth Hospital 'for several years, where he had several significant health issues managed'. The letter also referred to his admission to the trauma unit from 26 August to 27 August 2013 following a motor vehicle accident, and that thereafter his 'care was transferred from Swan District Hospital. On follow up of his medical conditions, he has reported issues with headaches and periods of forgetfulness which he has managed through his local general practitioner'.
74 The appellant's submissions dated 9 February 2015 also describe events at the hearing before Eaton DCJ; events in the Federal Circuit Court of Australia and matters in relation to the caveat the subject of the Supreme Court proceedings. It is evident that much of the material in the submissions dated 9 February 2015 purports to provide evidence of matters not raised at the hearing on 2 February 2015, or at least (in the appellant's mind) not adequately raised by him at the hearing on 2 February 2015. In that regard, it goes beyond the terms of the order made on 2 February 2015 to provide submissions in response to the respondent's oral submissions at the hearing. Nevertheless, for present purposes, I take it into account.
The appellant's grounds of appeal
75 The grounds of appeal are in these terms:
1. Eaton DCJ erred in proceeding to hear App 8 of 2013 on March 19 2014, the appellant was not well and told him at the start of the Appeal.
2. Eaton DCJ erred in not accepting that it was not possible to absorb the contents of a 127-page Leal [sic] document by the Appellant in 24 hours especially based on his opening statement.
3. Eaton DCJ erred when he ruled on page 4 paragraph 11 that the counterclaim was dismissed by the Magistrate on November 29, 2012, and no evidence was offered to support it.
4. Eaton DCJ erred in not discovering that the evidence under oath was not true.
5. Eaton DCJ erred in not recognising the importance of the missing original documents of the Letter of Offer.
Preliminary observations on grounds of appeal
76 In relation to the first ground of appeal, the appellant's submissions included the following:
1. DCJ Eaton erred in proceeding to hear APP 8 of 2013 on March 19, the Appellant was not well and told him at the start of the Appeal;
The Appellant on page 3 of the transcript said:
'Appellant: Your Honour, I just have to explain something before we start, I'm not very well and I have - I am battling cancer and I have an appointment with a specialist late this afternoon again. And - and I had a serious car accident as well. So I - I don't look for sympathy but just I need maybe a little bit more time to bring my point across than I normally would.
Eaton DCJ: What does that mean? Do you want the hearing to commence today - - -
Appellant: Yes. Yeah I do, yeah, but - - -
Eaton DCJ: - - - and to perhaps continue for - - -
Appellant: It' just that I might need a little bit more consideration for time to - tell you what I am trying to say.
Eaton DCJ: Now I don't quite understand. You are either ready to proceed now with the appeal or you seek and [sic] adjournment. Which is it?
Appellant: No, I am ready to proceed.
Eaton [DCJ]: Right, so you don't require and [sic] adjournment[?]
Appellant: No.
Eaton DCJ: No. Okay, all right.
Appellant: It's been adjourned a few time[s] and I did not think it was right to ask for another one.
Eaton DCJ: I agree. What time is your appointment with [sic] this afternoon?
Appellant: 3.30.'
Eaton DCJ erred in agreeing it was not right for me to ask for another appointment. The appellant told him that he was not very well and had an appointment with a cancer specialist that afternoon. He was confronted by Mr Stubbs and Miss Pagey appearing for the Defendant PSAL Pty Ltd outside the court room just before proceedings started. In raised voices they showed him the list of adjournments he had in the past. It was a very intimidating and distressing experience.
…
In the interest of justice the Judge should have used his discretion and adjourned the proceedings. The Appellant was given no extra time throughout the proceedings even when he could not remember or understand simple things. His request for extra time was completely ignored and he felt pressured throughout the proceedings as he was not well and worried about his test results from the cancer specialist.
The Appellant received a 127 page submission by PSAL Pty Ltd on Monday afternoon by mail … He tried to get legal advice that afternoon from Allyson Legal but she was unable to go through the file in time for the hearing. Her advice was to make a submission himself which the Appellant did … The fact that the appellant saw a solicitor should have been an indication that he felt he was not well and felt he could not deal with the Appeal properly.
78 According to the appellant's evidence, the 127 page legal document the subject of this ground and submissions was the 14 pars of written submissions with cases annexed, referred to in [51] - [52] above.
79 Ground 3 alleges, in effect, that Eaton DCJ was in error when he concluded that the counterclaim had been dismissed by the magistrate on 29 November 2012, and that no evidence was offered to support it. The transcript in relation to this is set out in [41] above.
80 In relation to ground 4, the appellant's submissions include the following:
Eaton DC [sic] erred in not discovering that the evidence of [the respondent's then solicitor] under oath was not true. [The respondent's then solicitor] stated under oath as pointed out by Eaton DCJ on page 6 of his judgment paragraph 18 that certain documents were missing, that no evidence of insurance of either property offered as security, no copy of the applicant's motor drivers' licence certified by a Justice of the Peace as requested and no certificate indicating that the applicant had obtained legal advice or had waived his right to do so. This again is not true.
81 Eaton DCJ's reasons for judgment recorded the evidence of Ms Vance, a solicitor in the employ of the respondent's solicitors at the time [18] - [19]. His Honour also referred to the cross-examination of Ms Vance by the appellant [20]. Although Ms Vance was evidently cross-examined by the appellant, the complaint in ground 4 is that Eaton DCJ erred in 'not discovering' that her evidence 'was not true'. The question of whether Eaton DCJ erred in not 'discovering' the truth in relation to these matters is also to be considered in light of the fact that Ms Vance's evidence does not appear to have been the subject of a ground of appeal to Eaton DCJ.
82 In relation to ground 5, the appellant's submissions stated:
In paragraph 39 of [his Honour's] judgment [Eaton DCJ] says … In the latter he took exception of being accused, in cross-examination, of lying under oath by the respondent's barrister, complaining he had no legal right to abuse the defendant for not being in possession of the original Letter of Offer. Firstly, it shows that the respondent never signed the original but a copy and also it started with page 1 out of 10 and ended with page 9 out of 10. Page 10 out of 10 is missing. This makes the Letter of Offer incomplete and that is why their barrister was badgering the appellant.
83 As noted earlier, the appellant had deposed that he had signed the letter of offer and returned it by facsimile on or about 1 September 2009. It appears that the appellant was requested to have original documents available at the trial before the magistrate. At the hearing before the magistrate on 29 November 2012, there was an exchange to the following effect:
The appellant: Your Honour, may I show you the letter that they wrote to me?
…
The appellant: It's the original letter. I only received it last Monday, your Honour.
His Honour: [The appellant], the letter doesn't, on my observation, do anything other than perhaps put you on notice of your obligation under the Magistrates Court Civil Proceeding Rules.
The appellant: Yes.
His Honour: Rule 34 provides:
'If a party discloses a document, the party must have the document available at the trial.'
The appellant: Yes, but they specifically name the document that they are basing the whole case on.
His Honour: Mm. Hm.
The appellant: As the original that I should have, but it's really the claimant that should have the - - -
His Honour: No, they say - they're requesting that you have available at the trial all original documents in your power, possession or control. Unless the original has been disclosed by you to be in your power, possession or control, then under the court's rules, you are obligated to have it here today, whether the claimant puts you on notice of that obligation or not.
The appellant: But, your Honour, they specifically mention the letter of offer and - - -
His Honour: Indeed they have.
The appellant: Yeah, which is what they base their case on, and …
His Honour: No, and if it's in your control, you are under - - -
The appellant: It's not, it's not, I don't have that.
His Honour: Then what is the issue?
The appellant: The issue is they're basing their case on a copy which is - - -
His Honour: Well, we haven't yet come to the issue of admissibility of secondary evidence of documents (ts 4 - 5, 29/11/12).
Stay - principles
84 The principles relevant to a stay of enforcement were stated by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 as follows [21] - [22]:
The application for a suspension order is made under s 15 of the Civil Judgments Enforcement Act 2004 (WA). Alternatively, the court has power under its rules to grant an interim order in the form of a stay of execution pending the hearing of the appeal.
…
Both under s 15 and in an application for a stay, the principles are as follows:
(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308.
Disposition
85 Having considered all of the appellant's materials and submissions, I am not persuaded that this is a proper case to grant a stay as sought by the appellant in his application dated 8 January 2015. The following matters appear to me to be particularly relevant.
86 First, I have outlined the grounds of appeal and some preliminary observations in relation to them. For present purposes, it is sufficient to observe that my provisional view is that there is a good argument that the grounds would not appear to enjoy good prospects of success.
87 Secondly, I am not persuaded that the appeal would be rendered nugatory if the stay were not granted. The orders of Registrar Jan in the Federal Circuit Court (see [36] above) indicate that the bankruptcy petition has been adjourned to 23 March 2015 on condition that the appellant proceed expeditiously with the appeal in this court, and in his other applications in the Supreme Court of Western Australia. I infer that when the matter is before the Federal Circuit Court again on 23 March 2015, the progress of the respondent's petition may, at least to some extent, depend upon evidence as to the appellant's compliance with the conditions of that order. Also, the court may dismiss a petition if the debtor is able to pay his debts, or for 'other sufficient cause' being shown (s 52(2) of the Bankruptcy Act 1966 (Cth)). Moreover, even if a sequestration order were made, there is no reason, on the evidence, to suppose that the Trustee in Bankruptcy would not proceed with the appeal if it were thought to have merit.
88 Thirdly and in any event, in the particular circumstances of this case, the prospect of a sequestration order is not a matter to which I would attach great weight on the evidence before me. There is no evidence before the court that the appellant did not have the means to pay the judgment debt of (approximately) $30,000 prior to the commencement of the bankruptcy proceedings. Nor is there evidence that if he had, the respondent would not have had the capacity to repay that amount if the appeal were to succeed.
89 Fourthly, none of the other matters raised in the appellant's affidavits and materials in [62] - [67] and [72] - [74] above, seem to me to point to 'exceptional circumstances' which would justify the grant of a stay.
90 Fifthly, in my opinion, there has been no proper explanation for the delay in the commencement and prosecution of this appeal. The history of this matter is that the transaction occurred in 2009; the primary judgment was delivered in January 2013; there was a stay pending an appeal to the District Court; the appeal to the District Court was dismissed in April 2014; and the application for a stay to this court was first made over a month after the appeal notice had been filed, and the appeal notice was filed almost eight months out of time. The appellant's dilatory approach is a material circumstance against which his contention that there exists 'special circumstances' warranting a stay, is to be judged.
91 In the medical certificate of 4 December 2014 the doctor expressed the view that the appellant had a 'medical condition' (see [64] above). That opinion is so vague and lacking in cogency that even if it were admissible (which it is not), no reliance could be placed on it. As Barrett J observed in Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 '[b]ald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything' [22].
92 The other matters to which the appellant has referred in his affidavits provide no adequate explanation for the delay in commencing the appeal, or in failing promptly to seek a stay of Eaton DCJ's orders. The fact that the appellant was diagnosed with prostate cancer in 2010, which has not been surgically treated, provides no basis upon which it could be inferred that he was unable to file an appeal notice within 21 days of the delivery of the judgment under appeal. Similarly, neither the fact of his partner's illness, nor his motor vehicle accident in August 2013, sheds any real light on why he failed to comply with the requirement to file a notice of appeal within time in 2014.
93 Nor does the largely uninformative letter from the appellant's sexual health practitioner (see [73] above) take the matter any further. It is expressed in general terms and includes reference to care by a general practitioner from whom there is no evidence. There is nothing in that letter which provides any satisfactory explanation as to why it took over eight months to file the appeal notice in 2014. There was no expert evidence that the appellant suffered post-traumatic stress disorder. Further, it appears that the appellant has been capable of conducting litigation in the Federal Circuit Court in the latter part of 2014.
Conclusion
94 For these reasons, the appellant's application dated 8 January 2015, for a stay, should be dismissed. The application dated 30 January 2015 should also be dismissed.
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