Notte v Notte
[2015] WADC 13
•13 FEBRUARY 2015
NOTTE -v- NOTTE [2015] WADC 13
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 13 | |
| Case No: | APP:99/2014 | 2 FEBRUARY 2015 | |
| Coram: | WAGER DCJ | 13/02/15 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | GIOVANNI NOTTE BARBARA NOTTE JULIE NOTTE ALLEN NOTTE |
Catchwords: | Appeal Magistrates Court Whether the magistrate erred in striking out claim pursuant to s 17(1) Magistrates Court (Civil Proceedings) Act 2004- Failure to notify parties of nature of hearing |
Legislation: | Nil |
Case References: | Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Commissioner for Australian Territory Revenue v Alpha One Pty Ltd (1994) 49 FCR 576 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Li v Cox [2012] WADC 97 National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 Re Burton; Ex parte Lowe [2003] WASCA 306 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- BARBARA NOTTE
Appellants
AND
JULIE NOTTE
ALLEN NOTTE
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G BENN
Citation : MI GCLM 535 OF 2014
Catchwords:
Appeal - Magistrates Court - Whether the magistrate erred in striking out claim pursuant to s 17(1) Magistrates Court (Civil Proceedings) Act 2004- Failure to notify parties of nature of hearing
Legislation:
Nil
Result:
Appeal allowed
Representation:
Counsel:
Appellants : In person
Respondents : In person
Solicitors:
Appellants : Not applicable
Respondents : Not applicable
Case(s) referred to in judgment(s):
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Commissioner for Australian Territory Revenue v Alpha One Pty Ltd (1994) 49 FCR 576
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Li v Cox [2012] WADC 97
National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Re Burton; Ex parte Lowe [2003] WASCA 306
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
1 WAGER DCJ: The appellants appeal against the decision of his Honour Magistrate Benn striking out the appellants defence and counterclaim at a listings conference in the Midland Magistrates Court on 1 October 2014.
2 The decision to strike out the claim was made under s 17 Magistrates Court (Civil Proceedings) Act 2004. Section 17 states:
(1) The court may strike out all or a part of a case statement if –
(a) any claim in it is outside the court's jurisdiction; or
(b) it does not disclose any reasonable grounds for any claim, or for any defence in it; or
(c) its purpose is to harass or annoy, or to cause delay or detriment, or is otherwise wrongful; or
(d) it is an abuse of the court's process; or
(e) it is frivolous, vexatious, scandalous or improper.
(2) If the court strikes out all of a case statement the court may give judgment accordingly without a trial.
3 'Case statement' means a statement of a party's claim, or of a party's defence, whether as originally lodged with the court or as amended or as supplemented by additional information given voluntarily or as ordered by the court: s 3 of the Act.
4 Section 17(3) sets out:
The court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.
5 The appellant did not apply to the Magistrates Court to set aside the judgment. Given the appeal was brought on 7 October 2014 the appellant was well within time to have sought to have the judgment set aside. There is no reason why the appellants could not proceed in the Magistrates Court: Li v Cox [2012] WADC 97.
6 The appellants' grounds of appeal are set out in the decision details and in the grounds of appeal of the appeal notice. The appellants assert that the magistrate denied them natural justice at the listing conference relevant to the claim because he delivered a prejudgment of the issues before him by stating that after he had read the documents filed he had determined the appellants were required to pay the mortgage which was a condition of a deed agreement dated 2007 between the parties. The assessment of damages was adjourned to a future date before the magistrate.
7 The appellants argued the magistrate did not take into account that, as set out in the defence and counterclaim, the appellants had pleaded they had paid the respondents $50,000 by way of bank cheque towards the mortgage debt in addition to making monthly mortgage payments required by the deed.
8 However, the appellants also argued that they had signed a deed in 2001 under duress and that the amount they should have agreed to pay in the 2007 deed was half of an outstanding mortgage not the sum that the claimants said they were required to pay. These are not issues that arise in respect of the claim and were properly struck out because they did not disclose reasonable grounds for a claim.
9 As agreed by the parties at the hearing in this court the issues are:
1. Were the appellants denied natural justice because the magistrate made the decision to strike out the defence and counterclaim when notification had been given that the hearing was to be a listings conference only?
2. Did any part of the defence and counterclaim disclose any reasonable grounds for any defence to the claim?
10 By application filed in this appeal dated 17 November 2014 the respondents submit the appellants grounds of appeal are frivolous and vexatious and oppose the introduction of fresh evidence by the appellants. No evidence was called at the listings hearing when the magistrate made the decision to strike out the defence and counterclaim. There is no reason why fresh evidence would be called and no exceptional circumstances requiring it to be called: s 40 of the Act.
11 I have had access to the complete file that was before the magistrate at the time that he made his decision to strike out the defence and counterclaim. I have also considered the transcript of his Honour's decision: r 52(3) of the District Court Rules 2005 (WA).
The factual background to the claim
12 This matter has a protracted history. Family members of both parties owned adjoining properties. A decision was reached to amalgamate the two and to then further subdivide the amalgamated property. Conflict between the parties arose prior to 1996. In 2001 the current parties entered into a deed. Supreme Court proceedings were commenced in 2005 but were settled once the parties executed a further deed dated 21 June 2007.
13 The respondents commenced the current proceedings in the Magistrates Court seeking damages for breach of the 2007 deed in respect of the appellants' liability under it to pay the mortgage. In the recitals section of the deed the mortgage is defined as:
D. At all times the Defendants have been and remain liable to the Plaintiffs for all moneys owing from time to time under registered mortgage no. I026932 against Lot 181 ('the mortgage').
14 As part of the terms of settlement cl 10 states:
At all times, the Defendants shall continue to pay all amounts outstanding under the mortgage from time to time.
15 By asserting they should not be responsible for the full mortgage the appellants are raising issues relating to 2007 and to the deed itself rather than answering the respondents' case statement. However the appellants have also raised, by a document annexed to the list of documents sworn 17 September 2014, that mortgage number I0269342 has been discharged. Reference is made to the Landgate document:
9. … which indicates that the Third CBA Claimants Mortgage bearing No. I0269342 was already discharged since the 13.8.2008.
16 Annexure JG9 to the list of documents is an historical search register number 444/44574 vol/folio 2669-608. The discharge of mortgage I0269342 is noted as occurring 13 August 2008. The appellants also annex a bank cheque made out to Mr Allan Notte for $10,000 (annexure 10JTN) and a further bank cheque made payable to Alan Notte in the sum of $45,000 dated 29 May 2008 (annexure 11JTN). The appellants assert that these sums were paid to the respondents in order to discharge the mortgage. They also assert the following payment of the two cheques they continued to pay a mortgage repayment until 23 November 2013 when they stopped making payments. The appellants assert that all monies owing on the mortgage have now been paid and counterclaim for an additional sum. The respondents deny that the money has been received in full satisfaction of the mortgage. The respondents argue a sum of $19,815.75 together with fees and costs remain outstanding and that the appellants have not paid all monies owing on the registered mortgage consistent with cl 10 of the deed.
17 Both parties are self-represented. Although the majority of the appellants' defence, counterclaim and related documentation does not disclose reasonable grounds for any defence, the issues relating to the discharge of the mortgage I0269342 and the agreement in respect of the two cheques paid in 2008 are issues that raise a reasonable ground for a defence and could, if the parties choose to proceed, be the subject of evidence at trial.
Magistrates Court chronology
18 The Magistrates Court file shows that the parties received a notice of pre-trial conference dated 20 March 2014. On 29 April 2014 orders were made including that a listings conference was to be set on a date to be fixed. On 23 July 2014 the following orders were made:
1. Adjourned to 13/08/2014 at 2.00 pm.
2. Claimants to produce by way of discovery items #5 and #6 on Defendants Form 23 dated 26/06/2014 within 7 days of this order.
3. Defendant to file and serve List of Documents in support of Counter Claim within 7 days of this order.
19 The appellants filed an application dated 1 August 2014 seeking orders that the claimants' claim in whole be struck out. On 8 August 2014 the respondents filed an application seeking an order that the defendants' statement of general procedure counterclaim be struck out.
20 The matters were listed on 13 August 2014. The magistrate ordered:
Upon the application of Claimant dated 8 August 2014 it is ordered that:
1. Julie Notte to re-lodge and serve a properly executed Affidavit in support of the Claimant's application within 7 days.
2. The Defendant's to lodge and serve a response and supporting Affidavit's in relation to the Claimant's application within 14 days of service of the Claimant's re-lodged Affidavit.
3. All 3 Applications and the Listings Conference adjourned to 10 September 1014, Magistrate's Court Midland, 2:00 pm.
21 On 10 September 2014 the magistrate ordered:
1. Defendant to lodge and serve a response and supporting Affidavit to the Claimant's Form 23 Application seeking that the Defendant's Counterclaim be struck out within 7 days.
2. All applications adjourned for determination to 24 September 2014 2:00pm Midland Magistrates Court.
3. Defendant to lodge and serve a specific list of documents they intend to rely on in support of their case at trial within 7 days.
22 On 24 September 2014 the magistrate has made a handwritten note, however there are no general orders of the court on that date. On the following day, 25 September 2014, notice of listings certificate was sent to all parties in the following terms:
You are to attend at a listing conference at the Magistrates Court held at Courtroom 1, 24 Spring Park Road, MIDLAND on Wednesday, 1 October 2014 at 2:00PM.
This conference is to set a date for trial.
Parties and/or Lawyers need only attend. Witnesses are not required to attend.
A party must attend a listings conference. Unless the Court orders otherwise, a party is not required to attend a listings in person if the party's lawyer attends the listings conference.
If you are not ready or unable to attend the listings conference, you should make a prior application to the Court for an adjournment. Do not leave it until the day of the conference as you may be ordered to pay the other party's costs.
If you need an interpreter, you must immediately advise the Court of the language and dialect you require. Give your name, case number and the date of the conference.
23 On 1 October 2014 the magistrate identified the parties and then said:
HIS HONOUR: Yes, take a seat thanks, everyone. I have now had an opportunity to carefully go through all the material that has been provided to me in respect of these applications and I'm in a position to hand down a determination. Was there anything further either party wishes to say before I do so?
…, MR: No, sir.
HIS HONOUR: All right.
..., MS: … Well, your Honour, I wasn't happy with the letter of response that I wrote in for – when John asked for our initial claim to be struck out.
HIS HONOUR: Right.
…, MS: But I didn't know if I should say anything, or if I wait to hear your response, so I'm not too sure.
24 His Honour proceeded to give reasons for striking out the defence and counterclaim without further explanation and without hearing further from the parties. He said:
The defendant has, in fact, admitted almost the entirety of the claimant's statement of general procedure claim, including the cessation of payments in November. However, the defendants deny that they are in breach of the 2007 deed. They say they do not owe any outstanding money under the mortgage and in fact seek as counterclaim of an amount they say they have overpaid. Further, it seems the defendants appear to say that payment by the defendants in 2008 resulted in a discharge of the mortgage.
That's directly in conflict with the admissions the defendants have made in their statement of defence and there's no material before me to support that discharge. The defendants have made available various materials in support of their defence and counter-claim, including the 2001 deed and details of the Supreme Court action. After examining all of that material, however, I find no merit or relevance in respect to the defence or counter-claim in regard to those materials.
Nor am I of the view that any of that material supports the defence or the counter-claim and I can see nothing before me that indicates any merit whatsoever in regard to the defence and counter-claim, regarding the defendants' obligations under the 2007 deed of settlement which resulted in a settlement of the Supreme Court action which was then on foot. The defendants cannot now, in my view, some seven years after the execution of that deed and after making payments under that deed for six years, now seek to rely on mistake or undue influence, as it seems they're now trying to raise in regard to that 2007 deed.
I am ultimately of the view that neither the defence, nor the counter-claim disclose any reasonable grounds for that defence or counter-claim, and on that basis, the defence and counter-claim are struck out and judgment therefore, is given to the claimants.
25 Natural justice requires that a person against whom a claim is made must be given a reasonable opportunity of appearing and presenting his or her case: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589. What amounts to a reasonable opportunity to present a case depends on the circumstances of the case including the nature of the jurisdiction, the subject matter that is being dealt with and the statutory provisions governing the power or jurisdiction being exercised: National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311 - 312; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 - 585; Re Burton; Ex parte Lowe [2003] WASCA 306 [63] – [64]. As a general rule a person will not be afforded a reasonable opportunity to present his or her case if they are not entitled to put information and submissions to the decision maker in support of an outcome that supports their interests: Commissioner for Australian Territory Revenue v Alpha OnePty Ltd (1994) 49 FCR 576, 591 – 592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22]. This entitlement extends to the right to rebut or qualify by further information, and comment by way of submission upon, adverse material from other sources which is put before the decision maker: Commissioner for Australian Territory Revenue v Alpha One (591 - 592); Re Minister for Immigration; Ex parte Palme [22].
26 Both parties were self-represented in the Midland Magistrates Court. The order sent to the parties dated 25 September 2014 in respect of the listing conference on 1 October 2014 did not disclose that the magistrate was going to make a decision to strike out the claim nor did the magistrate clarify with the parties that he was not going to proceed with the listings conference and that he was going to deal with the strike out application instead. For this reason the appellants were not given the opportunity to make further submissions prior to their defence and counterclaim being struck out. Accordingly, there was a denial of natural justice when the application to strike out was dealt with without notice at the listings conference.
27 The Magistrates Court (Civil Proceedings) Rules 2005 by r 79 require an application brought pursuant to s 17(3) of the Act to be made within 21 days after the judgment. The Act also provides by s 13(1) that, 'In dealing with cases … the court is to ensure that cases are dealt with justly'. Section 16 empowers a court to extend time for compliance with the rules. Although the matter could be relisted pursuant to s 17(3) given that the appellants have been denied natural justice at the listings conference, I make the following orders:
1. The appeal is allowed.
2. The judgment of Magistrate Benn entered on 1 October 2014 is set aside.
3. The claim is remitted to the Magistrates Court for a fresh determination by another magistrate in respect of the respondents' application to strike out the appellants' claim.
28 I cannot comment on the likelihood of success for either party in the event that the matter proceeds to trial in the Magistrates Court. I note however that after more than 20 years of dispute and following serious bouts of ill health within the family a resolution of this matter other than by trial may ultimately be in the parties' best interests. Whether the parties choose to mediate further or to take the matter to trial is a matter for the parties not for this court.
0