Ninan v National Australia Bank

[2014] WADC 128

NINAN -v- NATIONAL AUSTRALIA BANK [2014] WADC 128

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WADC 128
Case No:	APP:71/2014	Heard:	1 SEPTEMBER 2014
Coram:	MARTINO CJDC	Delivered:	18/09/14
Location:	PERTH
No of pages:	14	Judgment Part:	1 of 1
Result:	Grounds of appeal struck out Appeal dismissed
PDF Version

Parties:	GEORGE NINAN NATIONAL AUSTRALIA BANK
Catchwords:	Appeal against magistrate's order striking out a minor case claim Application to strike out appeal
Legislation:	Magistrates Court (Civil Proceedings) Act 2004 Magistrates Court (Minor Case Procedure) Rules 2005
Case References:	Fox v Percy (2003) 214 CLR 118 Murcia & Associates v Grey (2001) 25 WAR 209 Ninan v National Australia Bank [2014] FCA 335 Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 Roctor Tanks Pty Ltd v Adam (2001) 80 SASR 214

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : NINAN -v- NATIONAL AUSTRALIA BANK [2014] WADC 128 CORAM : MARTINO CJDC HEARD : 1 SEPTEMBER 2014 DELIVERED : 18 SEPTEMBER 2014 FILE NO/S : APP 71 of 2014 BETWEEN : GEORGE NINAN

Appellant

AND

NATIONAL AUSTRALIA BANK
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE ATKINS

File No : PER MINOR 448 of 2014

Catchwords:

Appeal against magistrate's order striking out a minor case claim - Application to strike out appeal

Legislation:

Magistrates Court (Civil Proceedings) Act 2004

Magistrates Court (Minor Case Procedure) Rules 2005

Result:

Grounds of appeal struck out

Appeal dismissed

Representation:

Counsel:

Appellant : In person
Respondent : Mr B C Smith

Solicitors:

Appellant : Not applicable
Respondent : Gadens Lawyers

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

Fox v Percy (2003) 214 CLR 118
Murcia & Associates v Grey (2001) 25 WAR 209
Ninan v National Australia Bank [2014] FCA 335
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Roctor Tanks Pty Ltd v Adam (2001) 80 SASR 214

1 MARTINO CJDC: On 3 July 2014 the appellant, Mr Ninan, filed an appeal notice in which he appealed against the decision of Magistrate Atkins made on 13 June 2014 in case number PER Minor 448 of 2014. In that appeal notice Mr Ninan provided the following details of the decision he was appealing against:

Minor claim struck out without trial allowing transfer of land titles (worth over $1 million) without possession of title.

2 The grounds of appeal were:

1. Orders are out of jurisdiction of the magistrate court; left, right, top & bottom. {sections in bracket below refers to Magistrate Court civil proceedings) Act 2004}

a) Both Magistrate and Respondent's lawyer openly admitted during the Hearing that there was no provision for strike-out of a minor claim & then did diagonally the opposite. (see part 4 of the Act)

b) The orders (verbal) referred to land transfer Acts & made the orders so that land titles can be transferred. But Magistrate court has no jurisdiction to deal with a claim of land title; an issue irrelevant to our claim but an issue specifically introduced by Respondent but out of jurisdiction (s 7.5a)

c) The value of property is more than $1 million & magistrate court's jurisdiction is below $75,000 only.

d) The 'intention to defend' & the illegal 'strike out' applications (no provision/no jurisdiction) were filed by lawyers; another violation making the application itself invalid even further.

e) On the Hearing day, Magistrate allowed leave to have lawyer to appear for Respondent on her own initiative at the outset; a decision which the magistrate did not have jurisdiction at all to decide (s 33 & s 44).

f) But that decision solidified the position that it was heard and decided as a minor claim.

g) If there is no provision for strike out a minor claim, then such an application cannot be scheduled or heard. (part 4)


2. Orders are against the natural justice.

a) Our tenants were evicted by force. Our application under s 96 of NCCP Act 2009 was for postponement of possession until proper court orders as mandated by the various Acts were obtained by the Respondent.

b) To do so otherwise violated every Rule & law of the land.

c) S 80 of RTA Act 1978 made it a crime punishable.


3. Orders are concocted & fraudulent to falsely legitimize a serious crime.

a) Scheduling of Hearings did not follow Rules.

b) Scheduling prolonged twice to accommodate an illegal application.

c) Having violated all the Rules & norms as above, orders, completely out of jurisdiction, were pronounced for only one purpose; ALLOW THE BANKS TO PLUNDER.

3 On 9 July 2014 the respondent, the National Australia Bank, filed notice of intention to take part in the appeal. In that notice the National Australia Bank said that it would argue that the primary court's decision should be upheld on the grounds relied on by the primary court. The notice said that the National Australia Bank also sought orders:

1. Striking out the appeal notice on the grounds that none of the grounds of appeal have a reasonable prospect of succeeding;

2. Alternatively that each of the grounds of appeal be struck out on the grounds that they are not proper grounds of appeal, have no reasonable prospect of succeeding, do not comply with Rule 51(3) and they relate to matters from which no appeal lies pursuant to s 32 of the Magistrates Court (Civil Proceedings) Act 2004;

3. Security for costs of the appeal; and

4. Costs.

The Magistrates Court proceedings

4 The Magistrates Court proceedings from which the appeal originates were commenced on 14 January 2014 by Mr Ninan commencing a minor case claim against the National Australia Bank. In that claim Mr Ninan specified the amount of the claim as $200 and described the claim as being:

An order for postponement of mortgage enforcement proceedings under s 96 of the NCC National Credit Code/NCCP Act 2009 as attached legal Basis and Summary of my claim of postponement.

5 The attachment was a two page document in which Mr Ninan asserted that as mortgagor of two properties in Dawesville he claimed relief of postponement of enforcement until all the disputes were resolved. He said that his claims against the National Australia Bank were being litigated in the Federal Court.

6 On 25 March 2014 the National Australia Bank filed an application seeking the following orders:

1. The pre-trial conference listed on 28 March 2014 at 10:00 am be vacated and adjourned pending the outcome of the application;

2. The time for filing a statement of defence be extended pending the outcome of the application;

3. The National Australia Bank have leave to be represented by legal practitioners;

4. The case be dealt with under the Magistrates Court General Procedure pursuant to s 28(2) and/or s 28(3) of the Magistrates Court (Civil Proceedings) Act 2004;

5. The claim be struck out pursuant to s 17(1) of the Magistrates Court (Civil Proceedings) Act 2004 and judgment be entered for the National Australia Bank with costs.

6. In the alternative to par 5, summary judgment be entered for the National Australia Bank pursuant to s 18 of the Magistrates Court (Civil Proceedings) Act 2004 with costs;

7. Mr Ninan pay the National Australia Bank's costs of the application.

7 In support of that application the National Australia Bank filed an affidavit of Tamara Elise Strack made on 25 March 2014. Annexed to that affidavit were copies of loan agreements between the Mr Ninan, Molly George and the National Australia Bank and of documents in actions in the Federal Court commenced by Mr Ninan and Ms George against the National Australia Bank.

8 Mr Ninan filed an affidavit made by him on 26 March 2014 in opposition to the National Australia Bank's application.

9 Both parties filed submissions on the National Australia Bank's application.

10 On 9 May 2014 Magistrate Atkins adjourned the application to 13 June 2014 and gave Mr Ninan leave to appear on the hearing of that application by audio link.

11 On 13 June 2014 Magistrate Atkins heard argument and gave an ex tempore decision. Her Honour made the following orders:

1. Leave is given for a legal practitioner to appear for the defendant.

2. The claimant's case statement is struck out.

3. Judgment is entered in favour of the defendant against the claimant without a trial.

4. There is no order as to costs.

5. The remainder of the application dated 25 March 2014 is dismissed.

The proceedings in this court

12 A directions hearing in Mr Ninan's appeal was listed for 19 August 2014 before a Registrar. On 11 August 2014 Mr Ninan filed by facsimile an affidavit he had made that day and requested that he attend the hearing by telephone. Mr Ninan was given leave to attend that directions hearing by telephone.

13 On 19 August 2014 Deputy Registrar Hewitt ordered that the National Australia Bank's application to strike out be listed before a Judge at 11.30 am on 1 September 2014. Mr Ninan appeared at the hearing before me by audio link from Bangkok, Thailand.

14 During the hearing I enquired of the parties whether in addition to hearing the application to strike out the appeal I should hear the appeal itself. Both parties agreed that I should hear the appeal itself. I ordered that the hearing would be a hearing both of the strike out application and of the appeal and I heard submissions on both the strike out application and the appeal.

15 Following the hearing of the appeal Mr Ninan filed by facsimile a further one page outline of submissions. The outline does not show that it was served on the National Australia Bank. In any event there is nothing in that outline which adds to the merit of his grounds of appeal and the submissions that I heard.

16 Section 32 of the Magistrates Court (Civil Proceedings) Act 2004 provides foran appeal against a decision made from a judgment of the Magistrates Court in a minor case. It is in the following terms:

32. Appeals

(1) Except as provided by this section, no appeal lies against –

(a) an order made by the Court in the course of proceedings in a minor case; or

(b) the judgment of the Court in a minor case.


(2) If a party to a minor case is dissatisfied with the judgment of the Court in the case then –

(a) if the Court was constituted by a magistrate – an appeal lies against the judgment under Part 7 and, subject to subsection (3), Part 7 applies to the appeal; or

(b) if the Court was not constituted by a magistrate – the party may appeal to a magistrate under and subject to the rules of court and this section.


(3) Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds –

(a) that the minor case –

(i) was not within the jurisdiction of the Court; or

(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.
(4) A magistrate who deals with an appeal under this section against a judgment may –

(a) confirm, vary or set aside all or a part of the judgment;

(b) give any judgment and make any order that it could have given or made in, or order a new trial of, the minor case;

(c) make an order as to the costs of the appeal;

(d) make any orders that are necessary as a result of other orders it has made.

17 Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 comprises s 40 to 43 inclusive of that Act. Section 40(1) and s 40(2) provide:

40. Appeal from Magistrates Court to District Court

(1) A party to a case that is not a minor case may appeal to the District Court against –

(a) any order made by the Magistrates Court in the course of proceedings in the case; or

(b) the judgment of the Magistrates Court in the case.

(2) An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.

18 A right of appeal is a creature of statute: Fox v Percy (2003) 214 CLR 118 [20]. A right of appeal is a substantive right and is more than a mere matter of procedure: Roctor Tanks Pty Ltd v Adam (2001) 80 SASR 214 [93].

19 On one reading of s 40 there is no right to appeal from a decision in a minor case created by the section, because s 40(1) expressly excludes minor cases from the cases for which a right of appeal is created. Section 40(2) does not appear to create a right of appeal in a minor case. It assumes that a right exists and it provides that the appeal in a minor case is subject to s 32. However, s 32 (2) expressly provides that, subject to s 32(3), an appeal under Part 7 lies against a decision of the Magistrates Court constituted by a magistrate. There is no provision granting a right of appeal from the Magistrates Court in Part 7 other than the provisions of s 40(1) and s 40(2). While the provisions may appear to be circuitous it is clear that the intention of the legislation is that there is a statutory right of appeal in a minor case, that an appeal in a minor case is limited to the grounds contained in s 32(3) and that Part 7 applies to the appeal.

20 Section 43 gives the court powers on the hearing of an appeal 'under section 40, 41 or 42'. Those powers include the power to strike out an appeal. It is arguable that s 43 does not apply to an appeal in a minor case because such an appeal is not under s 40, s 41 or s 42. However, s 32 provides that Part 7 applies to an appeal from a decision of a magistrate in a minor case. I conclude that s 43 applies to an appeal in a minor case and that the District Court does have the power to strike out an appeal in a minor case.

21 Apart from the statutory power to strike out an appeal in a minor case the court has incidental powers that are necessary for the exercise of its jurisdiction. Those powers are sufficient to enable it to correct irregularities in and frauds upon its procedure and to prevent abuses of its process: Murcia & Associates v Grey (2001) 25 WAR 209 [16]. In the exercise of those incidental powers the court could strike out an appeal in a minor case that is an abuse of its process.

22 The fact that the court has both statutory and implied power to strike out an appeal in a minor case does not mean that strike out applications should be encouraged. An appeal in a minor case can only be made on limited grounds. It will usually be preferable for an appeal promptly to be determined on those limited grounds rather than for the resources of the court and of the parties to be used on whether or not the appeal has reasonable prospects of success or is an abuse of process. In my view in this case it is preferable to deal with both the strike out application and the appeal on this hearing, as the parties have agreed to do and on which they have presented argument, rather than deal solely with the issues raised on the National Australia Bank's application to strike out the appeal.

23 I will consider the strike out application as part of my consideration of the merits of the appeal. Her Honour's reasons for decision are at pages 13 to 16 of the transcript of 13 June 2014.

24 Her Honour recounted that she had given leave to the National Australia Bank to be represented by legal practitioners. She said that her reasons were that whilst normally under a minor case claim there is no legal representation, whether one party can be represented by a legal practitioner has to be determined by the court pursuant to s 30 of the Magistrates Court (Civil Proceedings) Act 2004. Her Honour referred to what she described as the sizeable history of the matter and said that the National Australia Bank's lawyers had been involved in the majority of the previous proceedings so that they had a detailed knowledge of the matter. Her Honour said that it therefore appeared appropriate to her in the interests of justice for the National Australia Bank to be represented by legal practitioners.

25 The application that the claim be struck out was the next issue considered by her Honour. Her Honour noted that the application was made under s 17(1) of the Magistrates Court (Civil Proceedings) Act 2004. She said that the section was not excluded by r 6A of the Magistrates Court (Minor Case Procedure) Rules 2005. Her Honour said that Mr Ninan's claim is in like terms to claims made in the Federal Court regarding the same properties and the same mortgagor.

26 Her Honour referred to the Consumer Credit Western Australia Code and the National Consumer Credit provisions. She referred to s 6 of the Consumer Credit (Western Australia) Code, which was the Code in force at the time that the mortgages the subject of the dispute were granted. That section contained the criteria for determining whether the Code applied to a grant of credit. It required that the debtor was ordinarily resident in Western Australia and that the credit was provided for personal, domestic or household purposes.

27 Her Honour found that the Consumer Credit (Western Australia) Code did not apply and so Mr Ninan was not covered by the National Consumer Credit Legislation as he was not resident in Western Australia and the mortgages related to investment purposes. Her Honour noted that Mr Ninan had signed a declaration that the mortgages were for business purposes. Her Honour said that she was not satisfied that the case statement provided or lodged by Mr Ninan disclosed reasonable grounds for any claim. Her Honour also said that these issues had been considered by Federal Court judges.

28 Her Honour referred to the most recent decision in Western Australia, which I understand to be the decision of McKerracher J in Ninan v National Australia Bank [2014] FCA 335, in which it was found that Mr Ninan was repeating allegations made in previous proceedings and that those claims were an abuse of process. Her Honour said that Mr Ninan was repeating similar allegations in the claim before her and she was not satisfied that there were reasonable grounds for the claim. Her Honour then made the orders to which I have referred earlier in these reasons.

29 I will now deal with each of the Mr Ninan's grounds of appeal.

Ground 1(a)

30 Whether or not the learned magistrate and the lawyer for National Australia Bank said during the hearing that there was no provision to strike out a minor claim is not relevant to whether or not the court had jurisdiction to strike out the claim. Section 33(b) of the Magistrates Court (Civil Proceedings) Act 2004 provides that Rules of Court made for the purposes of minor cases may specify the circumstances in which any of the court's powers in Part 3 may be exercised. One of the court's powers in Part 3 is the power to strike out a claim, which is granted by s 17. Rule 6A of the Magistrates Court (Minor Cases Procedure) Rules 2005 provides that the court's powers in Part 3 of the Act, except s 14, s 18 and s 25, may be exercised by the court in every circumstance. The learned magistrate was correct to conclude that she had jurisdiction to hear and determine the application to strike out Mr Ninan's claim. This ground of appeal fails.

Ground 1(b)

31 Her Honour did not make any order for the transfer of land. Her Honour's orders granted leave for a legal practitioner to appear for the National Australia Bank, struck out Mr Ninan' case statement, entered judgment in favour of the National Australia Bank without a trial and dismissed the remainder of the application. This ground of appeal fails.

Ground 1(c)

32 The fact that the value of the property was greater than the jurisdiction of the Magistrates Court jurisdiction does not mean that the court does not have jurisdiction to decide to strike out a case statement and dismiss a minor case claim commenced in the court. As I have already said, the court did have that jurisdiction. This ground of appeal fails.

Ground 1(d)

33 Section 30 of the Magistrates Court (Civil Proceedings) Act 2004 restricts the ability of a party in a minor case to be represented before the court. It does not prohibit a lawyer filing documents for a party. In any event, her Honour granted the National Australia Bank leave to be represented by a legal practitioner, as she had power to do under s 30. Even if a lawyer were not permitted to file a document for a party, that would not make her Honour's orders outside of the court's jurisdiction. This ground of appeal fails.

Ground 1(e)

34 As I have already said, in dealing with the previous ground, s 30 expressly gives the court power to give a party to a minor case leave to be represented by a legal practitioner. It is not correct that the decision to allow the National Australia Bank to be represented by a legal practitioner was made by the learned magistrate on her own initiative. By its application dated 25 March 2014 the National Australia Bank applied for leave to be represented by legal practitioners. In any event, s 15 of the Magistrates Court (Civil Proceedings) Act 2004 allows the court to act on its own initiative, on notice to the parties. Mr Ninan had notice that the court would consider allowing the National Australia Bank to be represented by legal practitioners by the Bank's application dated 25 March 2014. This ground of appeal fails.

Ground 1(f)

35 This ground does not make sense. The ground does not provide a basis to conclude that the orders made by the learned magistrate were made in excess of her jurisdiction. This ground of appeal fails.

Ground 1(g)

36 For the reasons I expressed when I considered ground 1(a) the learned magistrate had jurisdiction to strike out a minor claim. This ground of appeal fails.

Ground 2(a)

37 A party to a minor case is entitled to be afforded natural justice. The nature of the right to natural justice was explained by Newnes JA in Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [57] – [59]. The principles of natural justice require that a party be given a reasonable opportunity to present that party's case. Mr Ninan was given a reasonable opportunity to present his case. He had notice of the purpose of the hearing before the learned magistrate by the National Australia Bank's application dated 25 March 2014. He filed written submissions on the hearing of that application and made oral submissions at the hearing on 13 June 2014. This ground of appeal fails.

Ground 2(b)

38 This ground does not provide a basis to conclude that Mr Ninan was denied natural justice. This ground of appeal fails.

Ground 2(c)

39 It appears from the list of authorities that Mr Ninan filed for the hearing of the National Australia Bank's application before me that 'S 80 of RTA Act 1978' is a reference to s 80 of the Residential Tenancies Act1987. That section prohibits the entering, for the purposes of recovering possession, of premises of which a person has possession as a tenant under a residential tenancy agreement or as a former tenant holding over after termination of a residential tenancy agreement. Mr Ninan does not claim that he was such a tenant. In the details annexed to his minor case claim he claimed that the National Australia Bank had wrongly given notice to his tenants to vacate the premises he had leased to them. Whether or not the notice was valid, the giving of a notice would not constitute a breach of s 80 of the Residential Tenancies Act1987. Whether or not there had been a breach of the section, the ground does not provide a basis to conclude that Mr Ninan has been denied natural justice because it does not suggest that he was denied a reasonable opportunity to present his case. This ground of appeal fails.

Ground 3(a)

40 This ground is expanded upon and explained in the chronology that Mr Ninan filed before the hearing before me. The part of the chronology to which I refer is as follows:

25) 28 March, 2014

Though Registrar Roshan found that reconciliation was not possible at the conference, he failed to set a Hearing date though I insisted. He pretended that he knew nothing of the 'strike-out' application.

He argued under pressure that 'there may be something wrong' in our s 96 application without being specific on what it was.

Apparently, the court had decided to strike out the minor claim as they did not like the s 96 claim filed by me. Later the Court advised that strike out hearing was set for 9 May, 2014 & another 'pre-trial conference' was set for 13 May, 2013.

26) 9 May, 2014

Magistrate Atkins set yet another date 13 June, 2014 to hear the application to strike out. The court & magistrate were focused on illegal strike out of minor claim.

The crime of illegal eviction and land grab was right in front of the court.

41 Section 29(3) of the Magistrates Court (Civil Proceedings) Act 2004 requires the court dealing with a minor case to act with as little formality as the court thinks is reasonable. Whatever level of formality the court thinks is reasonable it must not act in excess of its jurisdiction and must afford the parties natural justice. The chronology demonstrates that Mr Ninan was given notice of the proposed dates and the purpose of the hearings. He wished the matter to proceed to a hearing and did not wish the strike out application to be heard. As I have already concluded, it was within the learned magistrate's jurisdiction to determine the strike out application. The chronology and the ground of appeal do not support a conclusion that there has been an excess of jurisdiction or a denial of natural justice. This ground of appeal fails.

Ground 3(b)

42 For the reasons given when considering ground of appeal 3(a) this ground of appeal fails.

Ground 3(c)

43 This ground does not add anything that has not been covered by the previous grounds of appeal. For the reasons already provided it fails.

44 For these reasons none of the grounds in the notice of appeal have any reasonable prospects of success and they should all be struck out. Further, having considered the grounds of appeal, I am satisfied for the reasons that I have given that none of the grounds of appeal have been made out and that the appeal should be dismissed.