| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PENNICUIK -v- CITY OF GOSNELLS [2011] WADC 211 CORAM : SCOTT DCJ HEARD : 4 NOVEMBER 2011 DELIVERED : 24 NOVEMBER 2011 FILE NO/S : APP 64 of 2011 BETWEEN : RICHARD ALAN PENNICUIK ROSE MARY MALUMBRES
Appellants
AND
CITY OF GOSNELLS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE BOON File No : ARM 284 of 2011 Catchwords: Appeal - Application to strike out appeal - Appeal has no reasonable prospect of success - Turns on own facts
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Legislation: Commonwealth Constitution
Magistrates Court Act 2004, s 35
Magistrates Court (Civil Proceedings) Act 2004, s 35, s 43(3), s 43(4) Result: Appeal dismissed Representation: Counsel:
Appellants : In person
Respondent : Mr S J Blyth
Solicitors:
Appellants : Not applicable
Respondent : Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
Mills-Edward v Russell [2011] WADC 9
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Background 1 In Magistrates Court Action 284 of 2011 the respondent claimed the sum of $1,165.84 from the appellants for rates alleged to be due and owing by the appellants to it. 2 On 30 June 2011, judgment in default was entered for the respondent against the appellants for that sum plus costs of $580.17. 3 Application was made by the appellants to set aside the default judgment. That application was heard by Magistrate Boon on 11 August 2011 and dismissed. 4 By notice of appeal in this court dated 2 September 2011, the appellants appealed the order on 11 August 2011 citing the following grounds: The magistrate was wrong in law and fact when she sat under the Magistrates Court Act which is repugnant to the Federal Constitution by way of s 35 of that Act. 5 By chamber summons dated 13 September 2011 the respondent sought orders that the appeal be dismissed pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (MCCP Act). That is on the grounds that the likely costs of the appeal would be disproportionate to the amount of the claim in, or the nature of, the case the subject of the appeal. 6 By amended chamber summons dated 2 November 2011 the respondent added a further ground upon which it sought the dismissal of the appeal that being pursuant to s 43(4)(b) of the MCCP Act. That is that the appeal had no reasonable prospects of success and that the ground of appeal in the appeal notice did not disclose an arguable ground of appeal. 7 That amended chamber summons was supported by an affidavit sworn 1 November 2011 by Steven John Blyth, the solicitor acting for the respondent. 8 When the hearing of this application commenced: (a) The first named appellant sought to represent the second-named appellant and handed to me a consent by the second-named appellant to that representation. There was no objection from (Page 4)
counsel for the respondent and as a consequence I gave leave to the first-named appellant to so act. (b) The first named appellant handed to me a medical report from Dr Neil Beck dated 18 May 2010 together with reports from Dr Cardaci dated 3 June 2010 and 10 June 2010 with respect to a resting cerebral perfusion scan and a concentrating cerebral perfusion scan performed on the first-named appellant. 9 Dr Beck's report pre-dated the reports from Dr Cardaci. Dr Beck's report stated: This is to confirm that Richard Pennecuik (23/06/52) is suffering from severe Insomnia, ADD and Paranoia and Anxiety with a mild degree of Bipolar Disorder/Depression. He is not fit to argue his case in Court but need to get his case over and finished in order to recover from these problems. 10 I asked the first-named appellant whether, having regard to what Dr Beck said in his report, he felt able to explain to me the matters which he wished to raise in response to the respondent's application and he told me that he was. That being the case, and in view of the latter portions of Dr Beck's report I allowed the proceedings to continue. (c) The first appellant handed up an affidavit sworn by him on 4 November 2011 which appeared to be the appellants' response to the matters raised by the respondent. The affidavit stated: Section 35 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) removes the rights granted by Section 75 of the Australian Constitution therefore that Act is invalid and anyone sitting under that Act is invalid. (d) The first-named appellant asked me whether I was authorised to deal with these proceedings, having regard to ch III of the Commonwealth Constitution. I told the first-named appellant that that was not an issue to be dealt with in this application or the appeal and it was not a matter about which I was proposing to entertain any discussion with him. 11 When the first-named appellant was invited to respond to the submissions made by counsel for the respondent he told me that he did not recognise my authority or the authority of this court and said that he proposed to leave. I told him that that was his prerogative however there were likely to be some cost consequences in the event that the (Page 5)
respondent’s application was successful. His response was that he did not recognise me and then left the court. 12 I made orders extempore that the appeal be dismissed on the grounds that it had no reasonable prospects of success and that the respondent have the costs of the appeal including this application to be paid by the appellants to be taxed. I said that I would deliver written reasons which I would forward to the parties by post. These are those reasons.
Grounds of appeal 13 At the outset I enquired of the first-named appellant as to whether in his affidavit of 4 November 2011 reference to s35 of the MCCP Act was intended to be reference to s 35 of the Magistrates Court Act 2004 (MC Act) given that s 35 of the former Act related to the mediation process which could have no application to the matters the subject of this appeal whereas s 35 of the latter Act referred to prerogative writs to which s 75 of the Commonwealth Constitution makes reference. 14 The first-named appellant said that he was relying on his affidavit. 15 I suspect that he intended reference to be to s 35 of the MC Act. Be that as it may to whichever section reference was made the ground relied on in the notice of appeal and in that affidavit had no reasonable prospects of success. 16 Even allowing latitude to the first-named appellant given he was unrepresented he made no endeavour to articulate the basis upon which the ground of appeal or the matters raised in this affidavit could give rise to any argument which had a reasonable prospect of success. 17 If what was intended by the ground of appeal was in fact a submission based on an argument that the Magistrates Court was not a properly constituted court pursuant to the Commonwealth Constitution ch III, that argument has no prospect of success. 18 To that end I have had the advantage of reading the judgment of Davis DCJ in Mills-Edward v Russell [2011] WADC 9 [13] – [23] and have considered the cases therein referred to. I adopt her Honour's rationale and conclusion. 19 In view of the determination which I have made there is no point in dealing with the issue raised by the respondent pursuant to s 43(3) of the MCCP Act and I do not propose to do so.
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