Rankilor v Ethiad Airways PJSC - [2018] WADC 144

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RANKILOR -v- ETHIAD AIRWAYS PJSC [2018] WADC 144
CORAM:   BURROWS DCJ
HEARD:   3 AUGUST 2018
DELIVERED          :   31 OCTOBER 2018
FILE NO/S:   APP 20 of 2018
BETWEEN:   WENDY ANN RANKILOR
Appellant
AND
ETHIAD AIRWAYS PJSC
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WALTON
File Number             :   PE MINOR 16849 of 2016

Catchwords:

Civil appeal from Magistrates Court ‑ Minor case claim - Allegation of denial of natural justice - Unrepresented litigant - Representation by legal practitioner in minor case - Order made by court in the course of proceedings - Costs - Exceptional circumstances

Legislation:

Civil Aviation (Carriers Liability) Act 1959
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 25, s 28(2), s 30, s 31(3)(a), s 32, s 40

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

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

Cameron v Cole (1944) 68 CLR 571
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v the Honourable Justice Carolyn Martin [2012] WASC 338
Kioa v West (1985) 159 CLR 550
Laurent v Armstrong [2015] WADC 101
Lowry v Elliott [2009]WADC 193
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Burton; Ex parte Lowe [2003] WASCA 306
R v Small Claims Tribunal; Ex parte Amos [1978] Qd R 127
R v Steffan (1993) 30 NSWLR 633
Rankilor v Circuit Travel [2010] WADC 170
Rankilor v Circuit Travel Pty Ltd [2011] WADC 230
Smart v Prisoner Review Board (WA) [2012] WASC 48

BURROWS DCJ:

This appeal is from the magistrate's decision to allow the respondent to be legally represented at the hearing of an interlocutory application in a minor case and to award costs fixed in the sum of $1,250 in respect of the application.
For the reasons that follow the appeal is dismissed.

Background

On 2 November 2016 the appellant commenced proceedings in the minor case division of the Magistrates Court against the respondent claiming the sum of $7,569.50 for alleged breach of contract. The appellant had purchased an airline ticket with the respondent. She claimed damages for costs, including airfares and accommodation, incurred by her after she was refused boarding on a flight scheduled to depart from the airport in Rome on 3 August 2016.
Proceedings in the minor case division of the Magistrates Court are for claims not more than $10,000 (s 3 and s 26 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA). In a minor case, the court is not bound by the rules of evidence but may inform itself in such a manner as it thinks fit: s 29(4) of the MCCPA. With certain limited exception, a party to a minor case is not entitled to legal representation: s 30 of the MCCPA.
The successful party is entitled to an order in relation to 'allowable costs', but not (except in limited specified circumstances) in relation to the party's other costs: s 31(2) and (3) of the MCCPA. The term 'allowable costs' means the court fees and service fees paid by a successful party and the costs of enforcing the judgment: s 31(1) of the MCCPA. The court may make an order under s 25(1) as to payment of the other parties costs by another party if it is satisfied that because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid: s 31(3)(a) of the MCCPA.

The proceedings in the Magistrates Court

Application that the matter be dealt with under the general procedure in accordance with s 28(2) of the MCCPA

Section 28(2) of the MCCPA provides:
The court must order that a minor case be dealt with under the general procedure if the case involves any jurisdiction conferred on the court by a law of the Commonwealth.
Following a number of interlocutory hearings the matter was listed for trial in the Magistrates Court on 24 October 2017. The trial did not proceed on that date. The matter was relisted for trial before the learned magistrate on 8 and 9 February 2018.
On 24 January 2018 the respondent filed an application seeking the following orders (for ease of reference defendant is referred to as respondent and the applicant as the appellant):
1.that the matter be dealt with under the general procedure in accordance with s 28(2) of the MCCPA;
2.a declaration that the respondent be entitled to be represented by a legal practitioner in accordance with s 44(2)(a) of the MCCPA;
3.alternatively an order that the respondent have leave to be represented pursuant to s 30(4)(c) of the MCCPA; and
4.the appellant provide security for the respondent's costs under the general procedure in accordance with r 94(c) of the Magistrates Court (Civil Proceedings) Rules 2005.
The respondent filed a letter dated 23 January 2018 authorising Senarath Liyanage to represent the company, to be a witness and to give evidence on behalf of the company in relation to the matter. Mr Liyanage is the vice president of legal affairs and General Counsel of the respondent.[1]
[1] Annexure 1 affidavit of appellant sworn 7 February 2018.
The respondent filed written submissions in support of its application dated 8 February 2018 signed by Ms Carlean, a barrister at Francis Burt Chambers.
The order that the matter be dealt with under the general procedure was sought on the basis that jurisdiction was conferred on the Magistrates Court by a law of the Commonwealth, namely the Civil Aviation (Carriers Liability) Act 1959 (CA(CL)A). The respondent is an Australian international carrier being a carrier designated, nominated or otherwise authorised by Australia to operate scheduled international air services under the Commonwealth legislation governing international carriage namely the CA(CL)A.
Under the CA(CL)A the 1999 Montreal Convention applies to certain carriage by air and has the force of law in Australia in relation to any carriage by air to which the convention applies. Article 33(1) of the convention provides in relation to jurisdiction that:
An action for damages must be brought at the option of the plaintiff in the State of one of the State's parties, either before the court of the domicile of the carrier or its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.
Article 29 of the convention provides that any action for damages founded under the convention in contract or in tort or otherwise can only be brought subject to the conditions and limits of liability as are set out in the convention. In any such action punitive, exemplary or other non‑compensatory damages shall not be recoverable.
Article 19 renders the carrier liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.
The respondent's application was heard on 8 February 2018. The magistrate gave Ms Carlean preliminary leave to appear.[2] He considered having a legal representative make submissions to allow the court to efficiently deal with the matter was in the interests of justice.[3] Mr Liyanage was also in attendance at the hearing in the capacity as a witness and company representative.[4]
[2] ts 20.
[3] ts 23.
[4] ts 27.
The appellant filed written submissions dated 7 February 2018. She objected to the respondent being legally represented at the hearing of the application and at the trial. She expressed concern that she could not be given a fair trial in circumstances where the respondent was to be represented by counsel, namely Ms Carlean instructed by Mr Liyanage. No reference was made in the appellant's submissions to the jurisdictional issue.
In the course of the hearing which took place on the morning of 8 February 2018 and the morning of 9 February 2018 the appellant did not expressly oppose the challenge to the jurisdiction. She was unaware of the provisions of the CA(CL)A and expressed concern at why the challenge to the jurisdiction was brought on 24 January 2018 when the matter had been proceeding as a minor case since February 2017. She maintained her objection throughout the hearing to the respondent being legally represented.
The application for security for costs was refused at the commencement of the hearing. The learned magistrate did not consider he had jurisdiction to make such an order in a minor case and referred to the decision of Staude DCJ in Laurent v Armstrong [2015] WADC 101 [75] – [86].[5]
[5] ts 17.
During the morning of 8 February 2018 the learned magistrate set out in detail the basis of the challenge to jurisdiction, the principles of natural justice, the relevant provisions of the MCCPA in relation to legal representation and costs in minor cases and in general procedure claims. He adjourned the proceedings at one point to see if the parties were able to reach an acceptable settlement in accordance with the objective set out in s 27(1) MCCPA. The parties were not able to reach a settlement. His Honour reserved his decision on the application until 9 February. He explained to the appellant that if he granted the application the matter would be transferred to the general division and as a consequence the respondent would be entitled to be legally represented. The appellant was asked to consider overnight whether she would apply to adjourn the trial to get legal advice or representation in the event that the respondent's application was successful.[6]
[6] ts 66 – 67.
On 9 February the learned magistrate delivered his decision. He accepted that jurisdiction was conferred on the Magistrates Court by the Montreal Convention which is given force and effect in Australia pursuant to a law of the Commonwealth, namely the CA(CL)A. He correctly noted that no discretion is contemplated in s 28(2) MCCPA. He determined that the court must deal with the matter under the general procedure not under the minor case procedure.
Having made that finding his Honour asked the appellant whether she wanted the claim dismissed or transferred from the minor case jurisdiction to the general procedure jurisdiction. His Honour advised the appellant that he was prepared to transfer the matter to the general procedure jurisdiction and set it down for trial and make programming orders.[7] The appellant elected to have the minor case proceedings dismissed and to recommence her claim in the general division using 'the correct paperwork'. The learned magistrate dismissed the minor case.[8] He then went on to consider the question of costs. He found exceptional circumstances existed under s 31(3)(a) MCCPA and awarded costs against the appellant fixed in the sum of $1,250.
[7] ts 132 ‑ 133.
[8] ts 133.

The appeal

The appeal was heard on 3 August 2018. The appellant was self‑represented. The respondent advised by Notice of Respondent's Intention dated 19 March 2018 that it did not intend to take part in the appeal and would accept any order made by the court in the appeal other than as to costs.
In dealing with the appeal itself, I was cognisant of the fact that the appellant is a litigant in person and approached the matter in accordance with the established principles concerning litigant in person. Litigants in person should be afforded some latitude and the documents in which such a litigant articulates his or her case should be approached with some flexibility: Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). As a litigant in person, an appellant is also entitled to some leniency in relation to compliance with court rules: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court). The court needs to be careful to ensure that if the appellant has a case, it is not denied because of a poorly expressed document or submission: Ibrahim v the Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J). At the same time, the court must ensure that any latitude given does not work an injustice to the respondent: Glew v Frank Jasper [10] (judgment of the court).
Section 32 of the MCCPA restricts appeals from a judgment of the court in a minor case to situations of jurisdictional error or denial of natural justice. There is no general right of appeal against a decision because the magistrate was wrong in fact or law.

The materials on this appeal

Section 40(4) of the MCCPA requires me to decide the appeal on the material and evidence that were before the Magistrates Court. I have had regard to the transcript of the proceedings before the magistrate and the appellant referred me in detail to relevant pages from that transcript. I have also reviewed the Magistrates Court file and have considered the outline of submissions filed by the appellant dated 9 July 2018. In those written submissions a number of factual errors and errors of law are asserted by the appellant. There is no right of appeal in respect of such alleged errors to the District Court.

Principles of natural justice

The principles of natural justice require procedural fairness to the parties before the court. A person must be given a reasonable opportunity to present his or her case and to be heard: Cameron v Cole (1944) 68 CLR 571, 589; Rankilor v Circuit Travel [2010] WADC 170 [12] and [67]. The relevant duty of the court is to ensure that a person is given a reasonable opportunity to present his or her case. The law does not impose on the court the impossible task of ensuring that a person takes the best advantage of the opportunity: Lowry v Elliott [2009] WADC 193 [22].
Whether or not there has been a denial of natural justice in the course of any hearing must be assessed by reference to the application and the manner in which the hearing was conducted. The function which the court was performing and the statutory principles and rules governing its exercise must also be taken into account: Kioa v West (1985) 159 CLR 550, 584 - 585; Lowry v Elliott [17]; Rankilor v Circuit Travel [21].
The primary object of the Magistrates Court in dealing with a minor case is to attempt to bring the parties to a settlement; see s 27 of the MCCPA. Section 13 of the Act specifically provides that cases must be dealt with efficiently, economically and expeditiously and that the court's judicial and administrative resources are used as efficiently as possible.

Grounds of appeal

The grounds of appeal are expressed in the appeal notice as follows:
1.denial of natural justice;
2defendant (respondent) not disadvantaged by not being represented by a lawyer;
3.no exceptional circumstances exist to warrant any costs payable to the defendant (respondent) in any event. Magistrate has 'misinterpreted' the Act;
4.defendant (respondent) agreed to have matter proceed under minor case claim for almost 15 months, including the date of the original trial.
There is no ground of appeal against the learned magistrate's decision to dismiss the minor case. The appellant indicated in the course of the hearing of the appeal that she has recommenced her claim in the general procedure jurisdiction in the Magistrates Court and that claim is progressing.[9]
[9] ts 5 – 6, 3 August 2018.
The appellant confirmed the appeal is against the decision of the magistrate to allow the respondent to be legally represented at the hearing of the application and to award costs against the appellant in respect of the application in the sum of $1,250.[10]
[10] ts 5, 3 August 2018.

Issues to be determined

The first issue to be determined is whether any appeal lies to this court against the decision of the learned magistrate to allow the respondent to be legally represented at the hearing of the application.
Secondly, was the appellant denied natural justice when the learned magistrate ordered awarded costs against the appellant in respect of the application?

Does an appeal lie against the decision to allow the respondent to be legally represented?

The answer to that question is no. The decision of the magistrate to allow the respondent to be legally represented was an interlocutory order made in the course of proceedings in respect of which no appeal lies to this court. This issue was raised with the appellant in the course of the hearing of the appeal.[11]
[11] ts 31, 3 August 2018.
Section 32 of the MCCPA, so far as is relevant, provides:
(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;
(b)…
(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;
(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. (emphasis added)
Section 40(2) of the Act which appears in Pt 7 thereof provides:
An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
The right of appeal from the Magistrates Court to the District Court in a case that is not a minor case is different. Section 40 MCCPA specifically gives a right of appeal to the District Court to a party 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. (emphasis added)
Section 32 MCCPA does not.
The meaning of the provisions of the statute must be determined by reference to the language of the statute as a whole, taking into account its context, general purpose and policy: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]. It is clear from the language of s 32 that no appeal lies against an order made in a minor case which is not a judgment.
A judgment is the decision of the court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done): R v Steffan (1993) 30 NSWLR 633, 636 (judgment of the court).
As a matter of ordinary usage a ruling as to whether a party is legally represented at the hearing of an application could not be entered in the records of the court as a judgment.
The magistrate's decision to allow the respondent to be legally represented at the hearing of the application was not a judgment within the meaning of s 32 MCCPA. It was an order made in the course of proceedings in a minor case. In accordance with s 32(1)(a) MCCPA no appeal lies to the District Court in respect of such an order.
For these reasons the appellant has no right of appeal against the decision of the learned magistrate to allow the respondent to be legally represented at the hearing of the application.

Was the appellant denied natural justice when the learned magistrate ordered awarded costs against the appellant in respect of the application?

The learned Magistrate's decision dismissing the minor case was a judgment within the meaning of s 32 MCCPA. It was binding on and enforceable between the parties, determined the claim and was entered in the records of the Magistrates Court.
The costs order made by the learned magistrate was part of the judgment. Accordingly, so far as the present appeal is concerned, the combined effect of s 32 and s 40 MCCPA is that the appellant may appeal against the magistrate's decision to award costs on one or more of the grounds specified in s 32(3). In this case the appellant does so on the basis that she was denied natural justice.

After allowing the application on the jurisdictional issue the learned magistrate allowed an amendment to the defendant's application dated 24 January 2018 to allow a costs application to be made. The respondent provided the learned magistrate with a chronology of the proceedings and interlocutory applications made prior to 9 February 2018 and submitted that significant costs had been incurred on behalf of the respondent prior to legal representation being sought because a number of interlocutory applications had been made by the appellant. The respondent had filed in support of its application for security for costs an estimate of costs incurred with reference to the scale items pursuant to the Magistrates Court scale of costs 2016. Those costs totalled $24,776.[12] The respondent calculated the costs incurred on the scale in respect of the application to be $6,592.[13]
[12] Affidavit of Sarah Katherine Built sworn 24 January 2018.
[13] ts 121, 9 February 2018.
The learned magistrate explained that he could only award costs against the appellant if, because of the existence of exceptional circumstances, an injustice would be done to the successful party if that party's other costs were not ordered to be paid in accordance with s 31(3)(a) MCCPA. He invited submissions from the appellant. A review of the transcript reveals the magistrate was acutely aware of the need to ensure the appellant was afforded the opportunity to be heard on the issue of costs.[14]
[14] ts 116 – 132.
The decision to award of costs was made in the exercise of the discretion of the learned magistrate. In exercising that discretion he took into account the submissions of the appellant and the relevant authorities in relation to the exercise of the discretion. In deciding to fix costs he took into account the principles referred to by Edelman J in Carey v Korda & Winterbottom [No 2] [2011] WASC 220 who identified the five factors relevant to the exercise of the discretion to fix costs being:
1.The complexity of the case. The more complex the case the lest just would be a rough and ready approach.
2.The evidence available to the court about the costs actually incurred.
3.The extent to which the court can assess whether there has been any duplication of effort.
4.Whether the party against whom the costs have been ordered will be able to pay the costs.
5.Whether the taxation of costs process will involve a cost which was disproportionate to the potential recovery.
The appellant's submissions to the learned magistrate as to why no exceptional circumstances existed can be summarised as follows:
1.None of the pre‑trial applications were unnecessary. They were applications in which disclosure of documentation had been sought.[15]
2.That she had no means to pay costs sought in the sum of $6,000 apart from selling every possession she had including her motor vehicle.[16]
3.That costs are usually determined at the end of a matter.[17]
4.There had been significant delay in bringing the application to challenge the jurisdiction as a minor case.[18]
5.The purpose of the minor claims division was to enable parties to deal with matters at minimal cost.[19]
[15] ts 115 – 116.
[16] ts 128.
[17] ts 128.
[18] ts 129.
[19] ts 130.
The learned magistrate found exceptional circumstances to exist and awarded costs against the appellant which he went on to fix in the sum of $1,250. In finding that exceptional circumstances existed his Honour stated:
…
So, balancing all of this up, I am satisfied that there are exceptional circumstances that exist because of the substantial cost that has been undertaken – sorry, incurred by the defendant at this point in time where ‑ and I place limited reliance upon this because the minor case procedure requires parties not to be represented, in effect, I say that, balanced against what I've said already, and the amount of interlocutory applications for what is a relatively small amount, albeit not negligible, especially in relation to Ms Rankilor's financial position, which I don't make a concluded decision on, of course, because I haven't heard any significant evidence on it, other than comments from the bar table.
But it would seem to me that in the overall context of this matter for the length of time it has gone on, and the opportunity is even afforded yesterday to Ms Rankilor in relation to this application, and the fact that Ms Rankilor went to the trouble of filing written submissions in the form of an affidavit on 7 February and 29 January 2018 opposing this of course, it would be – it is exceptional given the nature of the application and the issues surrounding it. Basically, I have to take into account, of course, to a limited extent the comparative financial and resource strength of each party.
It would seem to me that merely because the defendant is a substantial corporate entity that on that basis and that the claimant is a individual who hay have – certainly has, I would accept, far less financial means, that does not relinquish her ability to take into account the proceedings and react accordingly. It could not be the case that in any circumstance where there's a individual up against an organisation of a size of the defendant that no costs could be ordered. The defendant has been successful in their application.
Now, I accept that Ms Rankilor is not a lawyer, and it would seem to me the injustice would be meted – would be – there are exceptional circumstances given that background, and the injustice would be is that in circumstances where a claimant can come along, as is Ms Rankilor's right as I set out very clearly on 8 February, to come along and sue an entity of this nature be, effectively, suing the wrong jurisdiction and simply move on. The injustice would be not so much to the drastic financial impact upon the defendant, of course that's not the case, it would be ridiculous to suggest that this action would bring Etihad to its knees.
They have such significant resources that, as I think Mr Leonargi [sic] said yesterday, we're an airline, we don't need a video link, I think, in passing. I may have not have heard – I may have heard that in passing. But the injustice could be broader than that, and it's not a means by way of punishing Ms Rankilor, I make that – specifically mention that, it seems to me the injustice would be that there be no compensation for a successful application in these circumstances that I've set out, especially given the vehement opposition to it.

Appeal grounds

Appeal ground 1 – Denial of natural justice

Ground 1 alleges a breach of natural justice which is not particularised. It is an umbrella ground which appears to incorporate grounds 2 – 4. I will deal with the allegations of denial of natural justice which are not dealt with in the other grounds under ground 1 as I discerned them to be at the hearing of the appeal.
(a)Failure to adjourn the hearing of the application to enable the appellant to seek legal advice
This submission can be dealt with shortly. It is clear from a review of the transcript that the appellant was given overnight on 8 February to consider any adjournment application to enable her to legal advice. The following morning the learned magistrate delivered his decision and offered to transfer the matter to the general division, set the matter down for trial and make programming orders. At that point it was 11.18 am on 9 February 2018. The appellant elected to 'start again' in the general division using the 'correct paperwork'.[20] She did not make an application to adjourn to seek legal advice before making that decision. There was no denial of natural justice. The learned magistrate was not required to determine any application to adjourn.
[20] ts 132.
(b)The magistrate allowed the respondent to change the application from costs reserved to costs payable
The appellant submitted she was denied natural justice by not being allowed to be heard.
The decision to grant the application determined the minor case. This was the appropriate time for the learned magistrate to hear any costs application, which he did. The transcript reveals the appellant was given ample opportunity to make submissions on costs, which she did. There was no denial of natural justice.
(c)There was a denial of natural justice in the magistrate facing costs in the sum of $1,250 rather than to have them taxed
(d)The appellant did not have the capacity to pay a costs order without selling her assets, including her car
These two particulars can conveniently be dealt with together. The appellant was given the opportunity to be heard before the learned magistrate fixed costs. He considered the amount claimed by the respondent under the scale and reduced it significantly. He took into account the appellant's submission that she would be unable to pay costs sought in excess of $6,000 without selling assets including her car. He also took into account the additional costs if the matter proceeded to taxation.
The appellant was afforded the opportunity to be heard. There was no denial of natural justice.

Appeal ground 2 – Defendant (respondent) not disadvantaged by not being represented by a lawyer

In the course of the appeal the appellant submitted she was disadvantaged by the respondent being represented by Ms Carlean at the hearing of the application. The appellant submitted that the learned magistrate accepted what Ms Carlean submitted to him in respect of the costs incurred by the respondent because 'she was a lawyer and an officer of the court'.[21]
[21] ts 48 – 49, 8 August 2018.
The appellant also submitted that she was denied procedural fairness and was treated unfairly due to Ms Carlean being allowed in the courtroom and by Mr Liyanage being permitted to be present and instruct Ms Carlean when he was to be a witness at the trial.
I have already determined that no appeal lies to this court from the learned magistrate's decision to allow the respondent to be legally represented.
Mr Liyanage was to be a witness in proceedings and was authorised to represent the respondent pursuant to the letter of authorisation dated 23 January 2018. He was entitled to be present at the hearing pursuant to s 44(2)(b)(ii) MCCPA.
A review of the transcript of the hearing does not reveal any unfairness to the appellant from the legal representation of the respondent at the hearing. The learned magistrate ensured that the appellant was aware of the relevant legal principles and legislative provisions being considered. He gave the appellant the opportunity to make submissions. He ruled against the respondent's application for security for costs. His reasoning process was open and transparent. He repeatedly reminded himself of the principles of natural justice throughout the hearing.
The respondent's claim for costs was based on the relevant Magistrates Court scale and had been particularised and provided to the appellant prior to the hearing. It was not a case of the learned magistrate 'accepting' the costs breakdown based on the fact Ms Carlean was a lawyer. The costs were calculated in accordance with the relevant scale.
The appellant was not denied natural justice. There is no merit in this appeal ground.

Appeal ground 3 – No exceptional circumstances exist to warrant any costs payable to the defendant (respondent) in any event

The decision under appeal in this case on costs involved the exercise of a judicial discretion. The only ground of appeal available under s 32 MCCPA is that the appellant was denied natural justice. No appeal lies on the basis of an error of fact or law.
There is no appellate authority which deals with what type of cases should justify a magistrate to finding there are exceptional circumstances in s 31(3). The word exceptional is defined in the Oxford English Dictionary as 'unusual, out of the ordinary, special'.
The appellant alleges the learned magistrate took into account the number of interlocutory applications in the proceedings in deciding exceptional circumstances existed. She claims all such applications were necessary. What the appellant is really asserting is an error of fact or law in the exercise of the discretion in this case.
As stated by Davis J in Rankilor v Circuit Travel Pty Ltd [2011] WADC 230 [54] it is not possible to negate an error of law or an error of fact by dressing it up as a denial of natural justice: R v Small Claims Tribunal; Ex parte Amos [1978] Qd R 127; R v Burton; Ex parte Lowe [2003] WASCA 306 [62] and [87].
Whether or not the learned magistrate erred in fact or law in taking account of the number of interlocutory applications made by the appellant in the minor case claim as one of the factors in determining exceptional circumstances existed there was no denial of natural justice by the magistrate when making his decision. The appellant was given the opportunity to make submissions on the issue. She was afforded procedural fairness. Accordingly this ground has no merit and is dismissed.

Appeal ground 4 - Defendant (respondent) agreed to have the matter proceed under minor case claim for almost 15 months, including the date of the original trial

The appellant commenced proceedings in the minor case division of the Magistrates Court. It appears from a review of the Magistrate Courts' file that the respondent was represented by a number of employees, namely Mr Glover and a Mr Farrance prior to engaging Ms Carlean to appear on 12 January 2018. Whilst it is unfortunate that neither party nor the court identified the jurisdictional issue at the outset and the matter proceeded as a minor case for a lengthy period, that in itself does not amount to a denial of natural justice. The appellant commenced proceedings in the wrong jurisdiction.
There was no denial of natural justice to the appellant and there is no merit in this appeal ground.

Conclusion

I am satisfied having regard to the transcript of the hearing of the application on 8 and 9 February 2018 that the appellant was given every opportunity to present her arguments in relation to the award of costs. There was no discernible breach of the principles of natural justice.
I find there was no denial of natural justice and that the appeal must be dismissed.
Because the respondent did not take part in the appeal and the appellant was self‑represented I make no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
ASSOCIATE TO JUDGE BURROWS
31 OCTOBER 2018