Ninan v Kelly
[2015] WADC 69
•26 JUNE 2015
NINAN -v- KELLY [2015] WADC 69
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 69 | |
| Case No: | APP:97/2014 | 4 FEBRUARY & 29 MAY 2015 | |
| Coram: | O'NEAL DCJ | 26/06/15 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | GEORGE NINAN GAVAN KELLY |
Catchwords: | Practice and procedure Appeal to District Court against decision of magistrate Whether appellant denied natural justice in Magistrates Court Turns on own facts |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA) s 26, s 32 |
Case References: | Fox v Percy (2003) 214 CLR 118 Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 Sullivan v Department of Transport (1978) 20 ALR 323 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
GAVAN KELLY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE COCKRAM
File No : MINOR 5284 of 2012
Catchwords:
Practice and procedure - Appeal to District Court against decision of magistrate - Whether appellant denied natural justice in Magistrates Court - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 26, s 32
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : In person
Respondent : Mr G Kelly
Solicitors:
Appellant : Not applicable
Respondent : Atium Legal
Case(s) referred to in judgment(s):
Fox v Percy (2003) 214 CLR 118
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Sullivan v Department of Transport (1978) 20 ALR 323
- O'NEAL DCJ:
Introduction
1 This is an appeal against a general order made by Magistrate Cockram on 10 September 2014.
2 In a minor case claim brought by the appellant against the respondent, the magistrate gave judgment in favour of the defendant respondent against the claimant appellant, dismissing the claim. Further, on the grounds that the claim was wholly without merit, the magistrate ordered the claimant to pay the defendant respondent's costs.
3 On 1 October 2014 the appellant commenced this appeal against that decision.
4 The matter first came before me on 4 February this year, but it became apparent that through an oversight of registry staff the appeal papers were not complete. The full transcript had not been obtained, and exhibits that had been returned to the appellant after trial were not available.
5 I adjourned the hearing to allow the documents to be obtained. Those matters were rectified, the documents were made available to the parties, and further submissions have been filed by the appellant.
Background
6 I will explain the background to the original claim made in the Perth Magistrates Court. In 2006 the respondent was the person who was the licensee in bona fide control of Jan Simpson Settlements Pty Ltd. That company carried on the business of licensed settlement agents pursuant to the Settlement Agents Act 1981. Consistently with the provisions of that Act, the respondent was also a director of Jan Simpson Settlements Pty Ltd.
7 In 2006 Jan Simpson Settlements acted for the appellant and a Ms Molly George on the settlement of a property in Dawesville. In 2007 Jan Simpson Settlements acted again for the appellant and Ms George on the settlement of a property in Port Bouvard. The appellant was dissatisfied with the conduct of the settlements. He lodged a minor case claim against the respondent on 26 November 2012. It sought the amount of $9,999. The description of the claim as set out in the appellant's minor case claim form 4 is as follows:
Violations of Code of Conduct; misleading and deceptive conduct
Fraudulent dealings in land settlements; ignoring and dismissing my overtures.
Claim for damages per FTA 2010 and other Acts, with causes of action accruing in 2012.
Full details are in documents: summary – 10 pages; volume 1 – 81 pages
8 It appears that the essence of the appellant's claim was, that in settling on the two properties I have referred to, Jan Simpson Settlements Pty Ltd by the conduct of the respondent 'knowingly used false bills for items including rates and taxes and land tax to prepare the settlement statements for each lot'. In the course of his evidence at trial the appellant claimed that the City of Mandurah had falsified a rate notice and other documents to support the rate notice. His allegation was that Jan Simpson Settlements systematically engaged in fraud at the behest of the respondent. There is an allegation of collusion between the City of Mandurah and the respondent to bring false rate notices into existence causing the appellant to suffer damage. The appellant claimed to have been wrongly charged for various amounts for adjustments of rates, disbursements in the course of settlements, and the fee for settlements.
9 Having heard the evidence of the parties over the course of several days, the magistrate said this:
Mr Ninan and Mr Kelly were the only witnesses. Much of the time Mr Ninan spent in the witness box was not taken up with evidence. Much of what he said was comment, assumption, speculation and accusation. He held a firm view of the correctness of position but presented little by way of hard evidence to support it. The evidence-in-chief of Mr Kelly consisted of a clear, concise, methodical and thorough examination and explanation of the process followed for the settlements on Lot 276 and Lot 227. His oral evidence was supported by relevant documents.
…
He explained by reference to the relevant contracts of sale and other documents how each of those sums was arrived at, why they were relevant to the settlement for the sale of Lot 276 and Lot 227 and why Mr Ninan and Ms George had to pay for them. Mr Kelly was subjected to lengthy cross-examination. His evidence in cross-examination in relation to the 11 items of concern … was consistent with his evidence-in-chief …
I am satisfied that Mr Kelly is both a reliable and credible witness. I accept his evidence. I am satisfied that there was no fraudulent conduct by Mr Kelly or any person working for Jan Simpson Settlements who was involved in the settlements of Lot 276 and 227. I am satisfied that both settlements were conducted in an appropriate manner.
10 The learned magistrate's reasons also referred to the unsatisfactory nature of some of the monetary claims made by the appellant.
11 Based on his assessment of Mr Kelly as a witness, together with the documentary evidence and the concerns that he had and expressed with respect to the matters put forward by the appellant, the learned magistrate found that the claim was not proved and entered judgment in favour of the defendant against the claimant.
Grounds of appeal
12 I will set out the grounds of appeal in full. They are as follows:
1. Orders are out of jurisdiction of the Magistrate Court; left, right, top & bottom.
(a) defendant and the Magistrate misrepresented facts of the case significantly. My case primarily was that duty of disclosure by a licensee was not complied with (breach) and secondarily that there were fraudulent billings in the trust account;
(b) the breach of duty of disclosure was admitted (10 out of 11 documents were not provided in 2006/2007 and again when specifically requested in 2012);
(c) many billings were proven to be fraudulent;
(d) documents submitted out of time (on the final day of the trial & which were not discovered) in the trial or proven to be fraudulent;
(e) page 5 of exhibit 35 (produced out of time on the last day) proved that my funds in the trust account were paid for illegal purposes & not for my sale transaction;
(f) exhibit 36 and exhibit 18 produced by Mr Kelly under oath proved to be forged by Mr Kelly as consequent responses were not produced nor did the consequent responses exist;
(g) it was clear that Mr Kelly was profusely telling lies from the witness box;
(h) the Magistrate decided that he believed Mr Kelly, knowing that Mr Kelly was significantly telling lies and was submitting forged documents time and again.
2. Orders are against the natural justice:
(a) it is against natural justice to issue an order in favour of a guilty party when the guilt was proven in the witness box profusely.
3. Orders are concocted and fraudulent to falsely legitimise a serious crime:
(a) the Magistrate issued false orders to allow a 'jail break' for a Perth lawyer simply because it was a non-Australian making a serious case against an Australian;
(b) it is a fraud on the part of the Magistrate.
At this early stage in these reasons I should set out that the appellant's allegations against the magistrate have no foundation in fact. When in the course of his first hour and a half of oral submissions before me, I invited the appellant to offer some explanation as to the basis of his allegation against the magistrate, and in particular why he thought that there was something that suggested some fraudulent collusion between various statutory authorities, the respondent, and the magistrate, the appellant was unable to point to anything beyond the fact that the magistrate did not share the appellant's views about the respondent.
13 In support of his grounds, the appellant has filed what is described as an affidavit dated 1 November 2014. It is in fact more in the nature of submissions that seek to re-argue the case at trial, together with some rather startling accusations. It includes the following:
I, George Ninan, of 6A Sachayan Court … Bangkok, Thailand, an engineer experienced in the oil & gas industry, say the following on oath, to illustrate & prove deceptions amounting to fraud (punishable as crime under WA laws) by lawyers and judges in my various cases in Perth & Sydney.
1. My appeals involved are based on the claim that Judges engaged in fraud to deny me justice in two proceedings & is not based on the usual claim that they made an error of judgment.
2. This affidavit is not a new evidence of the matters. It is rare that Judges engage in fraud while serving justice. But it has been plentiful in my cases and some of them are listed below.
3. I have uncovered proof along with three confession letters issued to me by Valuer General of WA by year 2011. He admitted by implication that he has been engaging in fraud to establish false values for land by issuing 'duplicate birth certificates' to every newly created land by 'highjacking the statutes'.
4. The motivation for all the Judges to engage in fraud is to cover up my evidence of the 'Australian fraud'.
14 This document continues in a similar vein for some 16 pages. Based on its contents, it is no exaggeration to say with respect to these issues, that anyone who has disagreed with the appellant is branded a liar, a perjurer, a conspirator in a fraud against him, or all of these.
15 The respondent relies on the magistrate's original conclusions in respect of the appeal but also says that the appeal should be dismissed for the reason that the grounds are not permissible grounds of appeal within the provisions of the Magistrates Court (Civil Proceedings) Act 2004.
Consideration of grounds and submissions
16 Section 32(3) Magistrates Court (Civil Proceedings) Act 2004 provides that an appeal against a judgment in a minor case may only be made on certain limited grounds. These include:
(a) that the minor case –
(i) was not within the jurisdiction of the court;
(ii) was not a minor case; or
(b) that in dealing with the minor case there was a denial of natural justice; or
(c) that the judgment was beyond the court's jurisdiction.
17 No rational claim is made that the case before the magistrate was not a minor case within the jurisdiction of the Magistrates Court or that the judgment was beyond the court's jurisdiction. The grounds of appeal which I have referred to pay lip service to issues of jurisdiction and natural justice. Even the most superficial examination of them however shows that they are entirely concerned with the appellant's dissatisfaction with the magistrate's acceptance of the evidence given by Mr Kelly. No true issue of jurisdiction is raised.
18 On 9 March 2015, the appellant filed a further 15 pages of submissions. Like the earlier affidavit the contents of this latest document also range far and wide, alighting from time to time on ideas or at least phrases that invoke legal principles, sometimes having a potential bearing on matters in issue in this proceeding.
19 These latest submissions invoke the earlier affidavit by references of this kind:
This is a submission for the hearing on 4 February 2014 and this is backed up by an uncontested affidavit of reasons and logics why the decision appealed against must be overturned and instead made against the defendant – a licensee and a lawyer.
20 With respect to this notion I note first that no order for further evidence on this appeal has been made or even sought. Second, with respect to the idea that the contents of the affidavit are 'uncontested', to the extent that any of the arguments made in the affidavit have a proper bearing on this appeal, they are contradicted by the conclusions expressed by the magistrate in his reasons.
21 Putting aside the extent to which the appellant sets out his disagreement with the conclusions reached by the learned magistrate and the scandalous allegations that the appellant makes in that regard, the appellant's submissions to some extent finally focus on the requirements of s 32(3) of the Act. He seeks to advance arguments that go to the question as to whether there has been a denial of natural justice.
22 Several arguments were raised in this respect.
23 First the appellant invokes what he calls 'the hearing rule' which the appellant describes as a rule 'that a party should be heard fully'. With respect, if that is intended literally it is not a reflection of the requirement of the rules of natural justice. What is required is the party be given a reasonable opportunity to present their case. The appellant was entitled to a reasonable opportunity to present his case. What the magistrate was not required to do was undertake the 'impossible task' of ensuring that the appellant took the best advantage of that opportunity: see Sullivan v Department of Transport(1978) 20 ALR 323, 343, cited in Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [59].
24 The appellant complains that 'the magistrate prevented hearing me fully by careful pre-planning. Not only did he refuse to hear my arguments but curtailed my cross-examination of the defendant'. In essence the appellant complains because the magistrate imposed a limitation of two hours on the appellant's cross-examination of the respondent, as the appellant puts it, 'even though there was a lot of time to spare'. In addition to imposing a limitation on the time for cross-examination the magistrate declined to adjourn the trial at the end of the evidence to give the appellant a further five days in which to prepare submissions. The magistrate limited submissions to 15 minutes. I should note that it appears that the magistrate did not call upon the respondent at all.
25 I have read the transcript of the trial. In limiting the time for submissions the magistrate said that he was concerned with the issue of proportionality. In my view he was right to be concerned. Having set out his complaints about the fact that he was only allowed to cross-examine for two hours and was restricted to 15 minutes for submissions, the appellant then says, 'so these facts showed that magistrate did not patiently listen to what I had to say and did not give me opportunity to prove my case'.
26 This was a claim for $9,999. The trial was conducted over the course of three days. Looking at the transcript of the hearing it appears to me that the magistrate in fact conducted the matter with considerable patience towards the appellant. Looking just at the transcript of the cross-examination of the respondent by the appellant it could not properly be said in my view that the limitation of two hours did not give the appellant a reasonable opportunity to conduct that aspect of his case.
27 Having read the transcript, in my view the time allotted would have been adequate had the cross-examination been conducted sensibly. The appellant is a lay person and cannot be expected to conduct it skilfully. Nonetheless the manner in which it was conducted shows that much time was wasted with arguments being made and evidence being given by the appellant, frequently dressed up in complicated questions containing two or more propositions for which the appellant often demanded a 'yes or no' answer from the respondent.
28 Nor in my view could it be said that an allotment of 15 minutes for a closing submission denied the appellant the opportunity to address the magistrate on the real matters in issue, if the appellant wished to do so. Having read the transcript I have no doubt that by the conclusion of the trial the magistrate knew exactly the issues raised by the appellant and the arguments that he was advancing in support of them.
29 If the appellant was either unwilling or constitutionally incapable of dealing with the real matters in issue then no amount of time would have been enough.
30 I am satisfied that the appellant was not denied a reasonable opportunity to present his case to the magistrate.
31 The next complaint made by the appellant is bias. The appellant's submission that the magistrate was biased in favour of the respondent arises from the fact that the magistrate accepted the evidence of the respondent despite the complaints that the appellant had with respect to the respondent's evidence, and presumably because the magistrate would not allow the appellant to have unlimited time in which to present his case.
32 Somewhat related to the basis of the appellant's claim of bias by the magistrate are the issues that the appellant raises with respect to the proposition that there was no evidence to support the conclusions reached by the learned magistrate.
33 Credibility based findings are not immune from challenge. As the High Court said in Fox v Percy (2003) 214 CLR 118 it is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination on the one hand, and the reasoning of a trial judge which is based on inferences drawn from facts that were undisputed or found by the trial judge on the other. Even in the case of express credibility findings, the statutory duty of a judge sitting on an appeal to conduct a real re-hearing remains. That may sometimes justify reversal of the decision by a primary judge if it can be seen that they 'fail to use or palpably misused his or her advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where there are 'glaringly improbable' and 'contrary to compelling inferences'.
34 I am mindful of the limited scope of minor case appeals of this kind. Nonetheless it is appropriate to address at least briefly the appellant's fixation on what he regards as the glaring evidence of dishonesty of the respondent that the magistrate failed to detect or, in the appellant's world, wilfully and fraudulently chose to ignore.
35 I have referred to the magistrate's observations of and conclusions, express and implicit, about the evidence which are set out at page 69 of the transcript on 12 September 2014.
36 The learned magistrate explained that the weight that he gave to the evidence of Mr Kelly was in large part because it was supported by contemporaneous documents that Mr Kelly was able to point to. The learned magistrate was not blind to the occasional stumble or inconsistency in the evidence of Mr Kelly. He refers to that at the top of page 70 in the transcript. The learned magistrate explained why those relatively minor matters did not affect the conclusion that he had reached that Mr Kelly was both a reliable and credible witness whose evidence he accepted. The learned magistrate was positively satisfied that there was no fraudulent conduct by Mr Kelly or any person working under his direction who was involved in the settlements of Lot 276 and Lot 227. The magistrate was satisfied that the 11 items that were the subject of adjustment in the document that became exhibit 9 at the trial were 'properly calculated, properly included in the relevant settlement statements and were payable by Mr Ninan and Ms George'. He was satisfied that the respondent's failure to give earlier discovery of documents that assisted the respondent's own case was the result of a misunderstanding and not some attempt to deceive. The learned magistrate was positively satisfied that there was not any breach of the Settlement Agent's Code of Conduct. Accordingly he was satisfied that the appellant was in fact obliged to pay the sum of $6,169 as part of the settlement process and that his claim against Mr Kelly therefore failed.
37 The arguments advanced by the appellant in his submissions are not particularly easy to understand and they are made less so by his vilification of the respondent and the magistrate. However I am not satisfied that there is any fact found by the magistrate, or any inference drawn by him that was not supported by the evidence that was in front of him. Perhaps more to the point I am not satisfied there is anything with respect to any finding of fact made by the magistrate, or any finding that the magistrate declined to make, that even begins to hint at a lack of a fair hearing or bias.
38 In the circumstances, the real matters that the appellant wishes to ventilate in this appeal from a judgment in a minor case do not fall within s 32(3) of the Act. This court has no jurisdiction to hear them and the appeal is accordingly dismissed.
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