Ogbonna v Tuazama
[2025] WASCA 20
•24 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OGBONNA -v- TUAZAMA [2025] WASCA 20
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 24 JANUARY 2025
DELIVERED : 24 JANUARY 2025
PUBLISHED : 24 JANUARY 2025
FILE NO/S: CACV 61 of 2024
BETWEEN: CELESTINE IFEANYI CEEFYNE OGBONNA
Appellant
AND
JOE TUAKEU DARIUS TUAZAMA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: CURWOOD DCJ
File Number : APP 31 of 2024
Catchwords:
Appeal - Practice and procedure - Where appellant's claim in minor case in Magistrates Court of Western Australia dismissed due to his failure to attend trial - Where appellant appealed to District Court of Western Australia on grounds there was denial of natural justice and judgment dismissing claim was beyond jurisdiction of Magistrates Court as magistrate was bound to apply the law - Whether appeal should be dismissed on basis that none of the grounds of appeal have any reasonable prospect of succeeding
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 29, s 30, s 32, s 40
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453
Ogbonna v CTI Logistics Ltd [2021] WASCA 25
Ogbonna v Qantas Airways Ltd [2023] WASCA 168
REASONS OF THE COURT:
At the conclusion of the hearing of this matter on 24 January 2025, we ordered that this appeal be dismissed. We said that we would publish written reasons for making that order later. These are our reasons for dismissing the appeal.
Procedural history
Magistrates Court proceedings (FRE/MINOR/738/2022)
On 14 September 2022, the appellant lodged a minor case claim in the Magistrates Court of Western Australia against the respondent. The amount of the claim was $9,800 plus costs. The claim form alleged that the respondent assaulted the appellant at an event held at the Pan Pacific Hotel in Perth on 3 September 2022.
The appellant's claim was listed for trial on 28 June 2023. However, on 28 June 2023, the trial was vacated due to the failure of the parties to comply with programming orders. Extensions of time to file statements of intended evidence of their witnesses were granted, and the matter was adjourned to a status conference on 18 October 2023.
On 16 October 2023, the respondent lodged a statement of his intended evidence in the case. At the status conference on 18 October 2023, the respondent was ordered to serve his statement of intended evidence upon the appellant and the claim was adjourned for a further status conference on 1 November 2023.
On 27 October 2023, the appellant lodged a form 23 application for orders that:
1.The respondent's statement of intended evidence 'be refused' for not complying with r 100 and r 102(1) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (Civil Proceedings Rules).
2.The respondent 'be made to serve' a notice of change of address in the approved form if his address had changed since entering his statement of defence.
3.The respondent be given leave to file and serve a statement of his evidence which complies with r 100 and r 102(1) of the Civil Proceedings Rules within a given time.
Rule 100 of the Civil Proceedings Rules in effect provides that, if the rules require a party to serve a document, the party must serve a copy of the document returned after lodgement bearing the seal of the court on each other party. Rule 102(1) of the Civil Proceedings Rules provides that a document lodged in relation to a case must contain a residential or business address for service. We note that r 5(1) of the Civil Proceedings Rules provides that, unless the contrary intention appears or the court in a particular case orders otherwise, those rules apply in every case except a minor case. However, r 50 and r 54 of the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) (Minor Cases Rules) contain equivalent provisions which apply to minor cases.
At the status conference on 1 November 2023, Magistrate Lemmon made an order dismissing the form 23 application lodged on 27 October 2023 and adjourned the matter for trial on 11 April 2024.
First District Court appeal (APP/58/2023)
On 17 November 2023, the appellant filed an appeal notice in the District Court of Western Australia against the orders made in the Magistrates Court proceedings on 1 November 2023 (first District Court appeal). The grounds of appeal in the first District Court appeal were:
1.Miscarriage of justice because there was a denial of natural justice.
2.The judgment was beyond the Court's jurisdiction as the Magistrate is bound to apply the law.
The essence of the appellant's complaint appears from written submissions filed in the District Court by the appellant on 8 April 2024 and an affidavit sworn by the appellant on the same date. The appellant's complaint was that the respondent's statement of intended evidence which had been served upon him was not dated, was not sealed and did not include a residential address for service.
The first District Court appeal was heard by the primary judge on 9 April 2024. The respondent did not participate in the appeal. After hearing oral submissions, the primary judge gave ex tempore reasons for dismissing the appeal.
In those ex tempore reasons, the primary judge referred to the procedural history and legislative provisions, including s 32 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Civil Proceedings Act) which relevantly provides:
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; …
(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.
The primary judge also referred to s 40 of the Civil Proceedings Act, located in pt 7 of that Act, which relevantly provides:
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.
The primary judge held that the first District Court appeal was incompetent as the orders made by the Magistrates Court on 1 November 2023 were interlocutory in character and so were not a 'judgment' of the Magistrates Court within the meaning of s 32(2) of the Civil Proceedings Act.[1] The primary judge also found that, in any event, there was nothing before the District Court to show that the appellant had not been accorded procedural fairness, and that the magistrate was not acting beyond power in making the orders on 1 November 2023.[2]
Magistrates Court proceedings on 11 April 2024
[1] First District Court appeal ts 09.04.24, 24.
[2] First District Court appeal ts 09.04.24, 25, 27.
As noted above, the appellant's minor claim in the Magistrates Court proceedings was listed for trial on 11 April 2024, which was two days after his first District Court appeal was dismissed.
At 10.33 am on 11 April 2024, the appellant sent a letter to the registrar of the Magistrates Court, in which he stated:
I cannot attend today's hearing because the [respondent] has not complied with court rule aided by corrupt judicial officers, who continue to contravene section 4 of the Corruption, Crime and Misconduct Act 2003 (WA) with impunity. The Defendant Form 32A - Statement of Intended Evidence Of a Witness has not complied with [r 100 and r 102(1) of the Civil Proceedings Rules].
When the matter was called on at 11.40 am on 11 April 2024, the respondent appeared but the appellant did not attend. Magistrate Ridley noted the above correspondence from the appellant. The respondent advised the court of the financial and emotional impact which the proceedings had on him.[3]
[3] Magistrates Court proceedings ts 11.04.24, 3 - 4.
After taking time over the luncheon adjournment to consider the papers, Magistrate Ridley gave ex tempore reasons for dismissing the appellant's minor claim. The magistrate's reasons were in essence that:[4]
1.The appellant's letter to the registrar was not an application to adjourn the trial and, given the history of the matter, the appellant clearly understood what is required and could have lodged an application if that was his intention. The letter and attached documents did not give any good reason for the appellant's failure to attend the trial.
2.The appellant had an opportunity to present his case and could have attended to give evidence on oath if he chose to do so.
3.The respondent attended as required, had complied with the court's orders as well as the appellant had, and was entitled to finality of the proceedings. To continue the proceedings would cause personal cost, both on an emotional and financial level, to the respondent.
4.An adjournment when a claimant chose not to attend for reasons which are not valid would waste the limited public resources of the court.
5.This was the second time the matter had been listed for trial and a further adjournment, which was not going to resolve the issues raised by the appellant, would result in further unnecessary delay and substantial prejudice to the respondent.
[4] Magistrates Court proceedings ts 11.04.24, 8 - 10.
The court made orders dismissing the appellant's claim and adjourning an application for costs by the respondent sine die.
The magistrate's decision was made in a context where r 38 of the Minor Case Rules states unambiguously 'You must attend the trial of your case in person'. Where a party does not comply with the rules of court the presiding magistrate may give judgment against the party without a trial.[5] Accordingly, as the appellant did not attend the trial of his minor claim on the day listed for trial, Magistrate Ridley was empowered to dismiss the claim without a trial.
Second District Court appeal (APP/31/2024)
[5] Civil Proceedings Act s 19(2)(b) (as applicable to the minor case procedure by virtue of r 6A of the Minor Case Rules).
On 2 May 2024, the appellant lodged a notice of appeal in the District Court of Western Australia against the orders made in the Magistrates Court proceedings on 11 April 2024 (second District Court appeal). The grounds of appeal were:
1.Miscarriage of justice due to denial of natural justice.
2.The judgment was beyond the Court's jurisdiction as the Magistrate was bound to apply the law.
The outline of submissions filed by the appellant on 3 September 2024 indicated that the basis of his complaint was the alleged deficiencies in the respondent's statement of intended evidence. The appellant submitted that Magistrate Ridley dismissed the case 'knowing that the respondent's form 32A did not comply with the court rule, and that he was in contempt of court'.
The second District Court appeal was heard by the primary judge on 10 September 2024. The respondent again did not take part in the appeal. At that hearing, the primary judge gave ex tempore reasons for dismissing the appeal.
It appears that the transcript of the proceedings before Magistrate Ridley on 11 April 2024 was not before the primary judge at the hearing of the second District Court appeal. After summarising the procedural history, the primary judge observed:[6]
There is no transcript that's been available of those proceedings. No attempt was made by [the appellant] to describe, in an affidavit, or otherwise, the terms of the hearing. And no submissions have been put on about the manner in which … the hearing was conducted.
[6] Second District Court appeal ts 10.09.24, 16.
Noting that the appellant's submissions in the second District Court appeal did not go beyond the matters raised in the first District Court appeal, the primary judge held:[7]
The appellant appears to have had a substantive hearing, for the claim on 11 April 2024, before Magistrate Ridley. The appellant has not commented on any lack of procedural fairness from that hearing.
Given that the appellant has already appealed the decision of Magistrate Lemmon, to refuse his application in regard to the respondent's statement of evidence. And I've already found notwithstanding the incompetence of that appeal, that there was no denial of natural justice.
The appellant's grounds of appeal, on this occasion, must fail. There is no merit in the current appeal. Put at its highest, this appeal … seems to be an attempt to mount another attack on the order Magistrate Lemmon made on 1 November 2023.
The original appeal, which I have heard and dismissed held no merit. The same observation applies to this appeal. For all of these reasons, the [second District Court appeal must] be and is hereby dismissed.
[7] Second District Court appeal ts 10.09.24, 17.
The appeal to this court
On 1 October 2024, the appellant filed an appeal notice in this court appealing against the primary judge's order of 10 September 2024 dismissing the second District Court appeal.
The appellant's grounds of appeal to this court are:
1. [The primary judge] erred in law, occasioning a miscarriage of justice because there was a denial of natural justice.
2. [T]he judgement was beyond the Court's jurisdiction as the [primary judge] was bound to apply the law.
The appellant's written submissions in support of these grounds are confused, but in essence complain that there was a denial of natural justice because the primary judge dismissed the second District Court appeal without any valid reason. The appellant contends that the second District Court appeal should have been allowed on the basis that the respondent's statement of intended evidence did not comply with the rules in the respects noted at [9] above.
The respondent has not filed a notice of respondent's intention in the present appeal. On 4 November 2024, the Court of Appeal registrar ordered that the appellant file an affidavit of personal service of the appeal notice on the respondent by 11 November 2024.
On 14 November 2024, the registrar issued a notice to attend at 12.00 pm on 24 January 2024 for the court to consider:
1. Whether the grounds of appeal in the appellant's case filed on 8 November 2024 should be struck out, and the appeal should be dismissed, on the ground that neither ground of appeal has any reasonable prospect of succeeding.
2. Whether the appeal should be dismissed on the ground that the appellant has not obeyed the order of the Court of Appeal Registrar made on 4 November 2024.
On 31 December 2024, the appellant filed an affidavit deposing that a copy of the appeal notice had been personally served on the respondent on 12 October 2024. Therefore, the issue of whether the appeal should be dismissed for failure to file an affidavit of service falls away.
On 23 January 2025, the appellant was advised by email that, due to the potential for industrial action to impede access to the court building on 24 January 2025, the hearing would be conducted remotely. The appellant was asked to provide contact details for that purpose. He did not do so by the requested time.
At 11.09 am on 24 January 2025 (ie 51 minutes prior to the scheduled hearing) the appellant emailed the Court of Appeal registrar stating:
I am not feeling too well, and you need to reschedule the show cause hearing,
You can relist the matter for next week if you can.
The Court of Appeal office responded to the appellant's email at 11.25 am on 24 January 2025. The appellant was advised that he would need to make any application for an adjournment at the hearing, which he could attend by telephone. The appellant was advised that, if he wished to attend by telephone, he should provide a telephone number at which the court could contact him for that purpose as soon as possible. The appellant had not responded to this request by the commencement of the hearing just after midday. At the hearing, the court called the mobile telephone number the appellant had previously provided with his service details, but an automated message advised that the phone was switched off or unavailable. The appellant's name was also called by the court orderly three times in the precincts of the court. The appellant did not appear in person at the hearing.
We were not satisfied that it was in the interests of justice to adjourn the hearing on 24 January 2025. There was nothing in the appellant's email which suggested that he was unable to attend the hearing by telephone. There was no formal adjournment application. The appellant was advised that he needed to make any adjournment application at the hearing, which could be attended by telephone. He did not do so. The court had set aside time to deal with the matter, and the use of further judicial resources to deal with the matter at a later time was not warranted in the absence of any valid reason being given for an adjournment. The court had received and considered the detailed written submissions advanced by the appellant in his appellant's case. We therefore decided to deal with the matter at the listed hearing time.
Disposition
For the following reasons, there is no merit to either of the appellant's grounds of appeal in this court.
The allegation that the primary judge denied natural justice to the appellant is based on the failure by the trial judge to uphold the second District Court appeal. As this court has previously noted in another appeal by this appellant, Ogbonna v CTI Logistics Ltd:[8]
[T]he question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision is taken.
[8] Ogbonna v CTI Logistics Ltd [2021] WASCA 25 [26].
We have reviewed the transcript of the hearing before the primary judge on 10 September 2024. The appellant is given a full opportunity to make oral submissions in support of his appeal, having taken the opportunity to file written material which the primary judge considered. There is no arguable basis for contending that there was any infringement of either the bias rule or the hearing rule.
Nor is there any proper basis for contending that the primary judge ought to have allowed the second District Court appeal on the ground that there was denial of natural justice by Magistrate Ridley at the hearing on 11 April 2024. There was no material placed before the primary judge which indicated that there was any denial of natural justice by the Magistrates Court.
Further, with the benefit of the transcript, it can now be seen that there was no denial of natural justice on 11 April 2024. The appellant was given the opportunity to present evidence in support of his claim at trial and declined to take advantage of that opportunity because he was dissatisfied with procedural orders made in the Magistrates court proceedings on 1 November 2023 and the disposition of the first District Court appeal. In circumstances where the appellant had been given that opportunity, there was no good reason for his failure to attend and a further delay would cause unnecessary financial and emotional prejudice to the respondent, the magistrate's decision not to further adjourn the trial was plainly correct.
As we recently noted in Ogbonna v Qantas Airways Ltd,[9] the discretion to grant or refuse an adjournment must be exercised consistently with the obligation of the court to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case. What is required is that the parties are provided with a sufficient opportunity to present their cases.[10] A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court has declined to provide a further opportunity to do so.
[9] Ogbonna v Qantas Airways Ltd [2023] WASCA 168 [17] - [18].
[10] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [98], [102], [112].
The transcript of proceedings before the Magistrate's Court on 11 April 2024 also demonstrates that the dismissal of the appellant's minor case had nothing to do with any formal defects in the respondent's statement of intended evidence. Rather, the Magistrates Court proceedings were dismissed because the appellant failed to attend the trial and so failed to adduce any evidence in support of his claim. There was no arguable error in that outcome.
In any event, there is no proper basis for contending that formal defects of the kind alleged by the appellant - the omission of a seal, date and residential address for service from the service copy of a statement of intended evidence - deprived the Magistrates Court of jurisdiction to determine the case. The formal defects identified by the appellant could not have occasioned any prejudice to his prosecution of the claim. The appellant had a signed statement of the respondent's intended evidence which appraised him of the respondent's defence and could form a basis for cross-examination of the respondent. He had the respondent's email address for service. Nor did the alleged formal defects prejudice the exercise of the Magistrates Court's jurisdiction.
Section 13(1) of the Civil Proceedings Act provides for the Magistrates Court's fundamental duty in dealing with cases to ensure that the cases are dealt with justly. Under s 13(2), ensuring that cases are dealt with justly includes ensuring:
(a)that cases are dealt with efficiently, economically and expeditiously; and
(b)so far as is practicable, that the parties are on an equal footing; and
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
Under s 29(3) of the Civil Proceedings Act, in dealing with a minor case, the Magistrates Court is to act with as little formality as the Court thinks is reasonable. Section 29(4) provides that, when dealing with a minor case, the Magistrates Court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit. Under s 30 of that Act, parties to a minor case will generally not be legally represented. In this statutory context, it cannot be concluded that any formal failure to comply with the rules in some respect deprives the court of its jurisdiction to determine a case justly.
The Magistrates Court has discretionary powers to deal with a failure by a party to comply with the rules. The court has case management powers conferred by s 16 of the Civil Proceedings Act to require procedural steps to be taken before a case is heard. Under s 19 of that Act, the court may order a non-complying party to pay the costs occasioned by non-compliance or give judgment against a non‑complying party without trial. These powers indicate that not every failure to comply with the rules removed the court's jurisdiction to deal with the case. Further, the case management powers are to be exercised to facilitate the just determination of the case. Case management is a means to an end, not an end in itself, and case management powers are to be exercised in a way that will facilitate the achievement of justice. Thus orders dismissing a case without trial are usually only justified where necessary for the court to fairly determine the substantive matter in dispute and as a last resort.[11] The Magistrates Court's case management powers could not properly be exercised to deprive a defendant from presenting a defence by reason of formal defects of the kind alleged in this case.
[11] See Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453 [41] - [42].
Given the above matters, it is not reasonably arguable that the result of the alleged formal defects in the respondent's statement of intended evidence had the consequence that the order dismissing the appellant's claim was beyond the Magistrates Court's jurisdiction within the meaning of s 32(3)(c) of the Civil Proceedings Act. The primary judge correctly held that the second ground of appeal in the second District Court appeal was without merit.
Orders
For the above reasons, neither of the appellant's grounds of appeal have any reasonable prospect of succeeding. For these reasons, at the hearing on 24 January 2025, we ordered that the appeal be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
24 JANUARY 2025
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