Rankilor v Etihad Airways P.J.S.C
[2018] WADC 179
•14 DECEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RANKILOR -v- ETIHAD AIRWAYS P.J.S.C. [2018] WADC 179
CORAM: SCOTT DCJ
HEARD: 28 NOVEMBER, 7 & 14 DECEMBER 2018
DELIVERED : 14 DECEMBER 2018
FILE NO/S: APP 75 of 2018
BETWEEN: WENDY ANN RANKILOR
Appellant
AND
ETIHAD AIRWAYS P.J.S.C.
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE WALTON
File Number : CTC 6211 of 2018
Catchwords:
Appeal from interlocutory order - Case management - Magistrate's discretion
Legislation:
District Court Rules 2005, r 57(2)(b)
Magistrates Court (Civil Proceedings) Act 2004, s 13, s 16, s 43(3)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms E Carlean |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Kennedys (Australasia) Pty Ltd |
Case(s) referred to in decision(s):
Cameron v Cole [1944] HCA 5
House v The King (1936) 55 CLR 499
Rankilor v Circuit Travel Pty Ltd 2010 WADC 170
SCOTT DCJ: [The transcript of this judgment delivered extempore on 14 December 2018 has been corrected for grammatical amendment.]
In this appeal there is:
(a)an appeal notice filed by the appellant Ms Rankilor with respect to the decision of Magistrate Walton on 6 July 2018 in CTC 6211 of 2018 that the respondent be not required to lodge and serve a statement of general procedure defence pending further case management programming orders to be made at a special appointment on 1 October 2018; and
(b)an application (application) by the respondent for orders that:
(i)the notice of appeal be struck out pursuant to r 57(2)(b) of the District Court Rules 2005 (DCR) and s 43(3), (4)(a), (b) and (d) of the Magistrates Court (Civil Proceedings) Act 2004 (MCCP Act); and
(ii)the appellant be ordered to pay the respondent's costs in the fixed sum of $13,915 pursuant to r 59 of the DCR.
Relevant documents before the court on appeal
The relevant documents in the appeal were:
(a)appeal notice 24 July 2018;
(b)notice of respondent's intention 8 August 2018;
(c)transcript of proceedings before Magistrate Walton in the Magistrates Court on 6 July 2018;
(d)respondent's application dated 31 July 2018;
(e)affidavit of Raylee Hartwell affirmed 31 October 2018;
(f)affidavit of the appellant sworn 12 November 2018;
(g)appellant's submissions dated 19 November 2018;
(h)respondent's submissions dated 21 November 2018;
(i)affidavit of Gabriella Agnese affirmed 3 December 2018;
(j)affidavit of appellant sworn 3 December 2018;
(k)affidavit of Gabriella Agnese affirmed 11 December 2018;
(l)affidavit of appellant sworn 12 December 2018.
Brief history
On 2 November 2016 the appellant commenced proceedings against the respondent in the minor case division of the Magistrates Court claiming damages for alleged breach of contract. The appellant had purchased an airline ticket with the respondent from Rome to Perth via Abu Dhabi and alleged that she was refused boarding on a flight scheduled to depart from Rome on 3 August 2016.
Ultimately the action was set down for trial on 8 and 9 February 2018. On the application of the respondent the learned magistrate ordered that the minor case division of the Magistrates Court did not have jurisdiction to deal with the appellant's claim because jurisdiction was conferred on the Magistrates Court by a law of the Commonwealth. As a consequence the minor case proceedings were dismissed. The learned magistrate found that exceptional circumstances existed under s 31(3)(a) of the MCCP Act and gave leave to the respondent to be legally represented. He dismissed the minor case claim and awarded costs in favour of the respondent fixed in the sum of $1,250.
The appellant appealed to this court against the order granting leave to the respondent to be legally represented and the costs order. On 31 October 2018 the learned appeal judge published her decision in which she found against the appellant with respect to both issues and dismissed her appeal.
On 30 April 2018 the appellant filed general division claim CTC 6211/2018 in the Magistrates Court (claim). On 22 May 2018 the respondent filed its notice of intention in that proceeding. The appellant filed her statement of claim on 14 June 2018. Counsel for the respondent said that her instructions were that the respondent's solicitors received the statement of claim on 29 June 2018. Pursuant to r 10(1) of the MCCP Act rules the party against which a claim is made must lodge and serve its statement of defence within 14 days after being served with the statement of claim. Pursuant to r 101(1)(i) the appellant was entitled to serve a copy of the statement of claim on the respondent by sending it by prepaid post to the address stipulated in the notice of intention.
Pursuant to s 75(10) of the Interpretation Act 1984 (WA), where a written law authorises a document to be served by post service, service is deemed effected by properly addressing and posting the document as a letter and, unless the contrary is proved, service is effected at the time when the letter would have been delivered in the ordinary course of post. Given the dispute raised by the appellant as to the date of service of the statement of claim, I required the parties to file an affidavit on or before 3 December 2018 as to their respective positions. The appellant filed an affidavit sworn 3 December 2018 deposing to the fact that she sent the statement of claim in an envelope by prepaid ordinary post at approximately 12.30 pm on 14 June 2018. She deposed to the fact that she made enquiries of the post office and was informed that it takes between 3 to 5 days for an ordinary prepaid letter to reach Sydney. On the other hand I received from the respondent's solicitors an affidavit affirmed by Gabriella Agnese on 3 December 2018 and annexures deposing to the fact that the statement of claim was received by her on 29 June 2018, was noted by her on that day as having been received and on that day was forwarded to counsel by email.
By reason that no reference was made in Ms Agnese's affidavit of 3 December 2018 as to the date it was likely that her firm received the statement of claim I gave leave to each of the respondent and the appellant to file a further affidavit. The respondent's affidavit was affirmed on 11 December 2018 by Ms Agnese. By that affidavit she affirmed that she is familiar with her firm's usual practice in relation to the collection of mail which was that mail was collected on a daily basis, the mail was on that day distributed to the addressee and/or the partner supervising the matter as the case may be. The partner's secretary would date stamp the mail if it included a covering letter, however court documents were not date stamped by the secretaries. It is not the firm's usual practice to retain envelopes in which mail is received.
Ms Agnese said that she assists with the day-to-day conduct of this matter under the supervision of Ms Hartwell. She said that the document would have been first handed to Ms Hartwell's secretary by the assistant who distributed the mail and placed in Ms Hartwell's in tray. Ms Hartwell generally reviewed her in tray on a daily basis unless she was away from the office. Ms Agnese said she was informed that Ms Hartwell was in her office on 29 June 2018 but on annual leave on 21 and 22 June 2018. She said that she was informed that Ms Hartwell's usual practice is to distribute the mail to the solicitor with day‑to‑day conduct of the file on the same day. As a consequence Ms Agnese said she believes that the document was passed to her on the same day it was received. Upon receipt of any document or mail her usual practice is to write the date upon which it was received by the firm on the document, if the document is not already date stamped. That is what she did in this case.
The appellant swore an affidavit in response on 12 December 2018. In that affidavit she points to a number of matters which she contends makes it unlikely that Ms Agnese received the statement of claim on the same day that it was received by her firm. She refers in the respondent's attached chronology to a number of occasions upon which documents were received by the respondent's solicitors within four to six days and submitted that it was therefore most unlikely that it took 15 days for this document to reach its Sydney destination.
The appellant also submits in this affidavit that no reference was made to the learned magistrate by the respondent that the defence was not, as at 6 July 2018, then due and had that been made known the appellant says that she would have had the opportunity of submitting to the learned magistrate that the defence was already overdue which would have entitled her to enter default judgement.
Whilst I am satisfied that the appellant posted the statement claim to the respondent's solicitors on 14 June 2018, I am also satisfied that the statement of claim was not received by the respondent, by way of service, until 29 June 2018. Whilst it is most unusual that it would take 15 days before mail posted in Perth would reach a Sydney office, I consider it inherently unlikely, given the system in place at the respondent's solicitors, that mail would not be expeditiously distributed to a solicitor handling the matter given the importance of timeframes within which court documents may require a response. As a consequence deemed service by prepaid ordinary post has been rebutted. For the purposes of the Rules service of the statement of claim was effected on 29 June 2018.
On 30 May 2018 the respondent filed an application dated 22 May 2018 seeking a stay of the action until such time as the District Court appeal had been determined and seeking security for costs in defending the claim. That application was listed before Magistrate Walton on 6 July 2018.
Hearing
At that hearing the appellant appeared in person and the respondent by Ms Carlean of counsel.
The learned magistrate said that with respect to the respondent's application he proposed to set it down for a special appointment between one and two hours and after the parties made known their respective unavailable dates he set the special appointment down for hearing for 1 October 2018.
There was the following exchange:
CARLEAN, MS: Just as a reminder to your Honour, because the plaintiff has already filed her statement of claim, the defendant would ordinarily have to file its defence within …
HIS HONOUR: No I will make a programming order. Yes.
CARLEAN, MS: So if you could please – thank you your Honour.
HIS HONOUR: Absolutely. Ms Rankilor as I said to you I think on the last occasion, do you wish to say anything in relation to how I propose to proceed today?
RANKILOR, MS: Well, I guess that's fine, sir. I'm just wondering about the costs for today. Were they to be reserved or – what's the issue there.
CARLEAN, MS: Definitely reserved, yes, thank you.
HIS HONOUR: Yes they will be reserved.
RANKILOR, MS: So they will be reserved. I haven't got anything more to say.
HIS HONOUR: Thanks Ms Rankilor, the defendant's application dated 22 May 2018 …
RANKILOR, MS: Sorry, sorry.
HIS HONOUR: Yes.
RANKILOR, MS: I'm just struggling here, that's all. So you're not at this stage insisting that the defendant lodge a statement of defence at this time.
HIS HONOUR: No.
RANKILOR, MS: No, okay.
…
HIS HONOUR: … While we wait for a date, the second order will be the defendant is not required to lodge and serve a statement of general procedure defence in accordance with the rules pending further case management programming orders to be made on … 1 October, it seems.
There were then orders made by the learned magistrate with respect to the parties having leave to lodge and serve any further affidavit material in relation to the defendant's application and any responses.
The orders made by the learned magistrate were:
1.Ethiad's application dated 22 May 2018 is adjourned to a special appointment on 1 October 2018 for two hours at 2.15 pm at the Magistrates Court.
2.The defendant is not required to lodge and serve a statement of general procedure defence in accordance with the rules pending further case management programming orders to be made at the special appointment noted in order 1.
3.The parties have leave to lodge and serve any further affidavit material in relation to the defendant's application and responses on or before 14 September 2018.
4.Costs were reserved.
On 24 July 2018 the appellant filed this appeal with respect to order 2.
On 1 October 2018 the respondent sought and obtained an order that the hearing of its applications for a stay and for security for costs be adjourned pending the disposition of this appeal.
Appeal and application
Notwithstanding counsel for the respondent's submission that the application ought to be heard first so as to avoid additional costs being incurred by the appeal itself being argued, I refused to take that course. I took that view because it became clear that the only ground of appeal which was being pressed by the appellant was that the learned magistrate erred in making an order that the respondent be not required to lodge and serve a statement of general procedure defence in accordance with the rules pending further case management programming orders to be made on 1 October 2018. My view was that there was no point in dealing with the respondent's application separately because that ground was necessarily required to be argued in the appeal and so from a practical perspective there would be no time nor costs saved.
The appellant is not represented and as a consequence I could not expect an articulate formation of the ground of appeal which comprises this issue. However, from the submissions made by both parties this is the only issue referable to the orders made by the learned magistrate on 6 July 2018 which falls for determination by me. That issue is sufficiently made clear in grounds 1 ‑ 3 in the notice of appeal. In my view grounds 4 ‑ 11 are not separate grounds of appeal but constitute argument and subjective comment.
The law
Section 13 of the MCCP Act provides as follows:
(1)In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring —
(a)that cases are dealt with efficiently, economically and expeditiously; and
…
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
Section 16 provides as follows:
(1)The Court may do all or any of the following for the purposes of controlling and managing cases and trials —
(a)extend the time for complying with any rule of court or practice direction, … (even if the time for complying has expired), …;
…
Rule 50(1) of the DCR provides:
An appeal to the Court must be by way of a reconsideration of the evidence that was before the primary court unless the parties agree otherwise.
An appeal pursuant to s 40(1) of the MCCP Act is by way of a reconsideration of the evidence that was before the Magistrates Court. As such it is necessary for the appellant to demonstrate error on the part of the learned magistrate.
The appellant submits that the learned magistrate should not have made an order which enabled the respondent to avoid lodging and serving its defence in accordance with the rules. The appellant submits that she is entitled to have the Magistrates Court progress her claim to trial given that she initiated proceedings as far back as 2016 and there is still no defence which has been lodged by the respondent and she is thereby no closer to the trial of her claim.
She maintained that the learned magistrate ought not to have made an order allowing the application for a stay of proceedings and security for costs to be heard before the respondent was required to file its defence under the rules. The appellant said that as the respondent was well aware she was not in a position to pay any sum ordered by way of security and that the application for security was made with a view to stifle her claim. As to that matter, I pointed out to the appellant that that was an issue for the magistrate to consider on the hearing of that application.
Counsel for the respondent submits that by making the orders he made the learned magistrate was properly exercising his discretion in accordance with his powers and duties pursuant to s 13 and s 16 of the MCCP Act and no error of law on his part is made out in this appeal.
The respondent says that in the event that the application for security for costs was successful then there would inevitably have been a stay of the appellant's claim pending the amount by way of security being appropriately secured. By the order being made by the learned magistrate the respondent was not required to expend costs on preparing a defence which might not have been required in the event that the application for security for costs was granted.
The respondent quoted the passage from House v The King (1936) 55 CLR 499, 504 – 505 in par 31 of its submissions which summarises the criteria necessary to appeal a discretionary judgment. That summary is apt in this case.
I can well understand the appellant's frustration in her claim seemingly taking so long to be dealt with. However, as I raised with her, as a matter of practicality even if the respondent was required to file a defence before the application was dealt with, if that application was successful and the action was stayed pending security being made, then she would be no closer to trial dates being allocated.
I am by no means satisfied that the learned magistrate erred in making the orders that he did. To deal with the application for security for costs promptly was an appropriate disposition and to do so without putting the respondent to the cost of preparing a defence beforehand was also an appropriate discretionary judgment which he was entitled to make and it was proper that he did so. That order was consistent with the proper case management principles referred to in s 13 and s 16 of the MCCP Act.
To that end I make the observation that even if it was the case that the statement of claim was received by the respondent's solicitors such that the 14 day period for filing a defence had fallen due prior to 6 July 2018, I am not satisfied that the learned magistrate erred in exercising his discretion having regard to s 16 of the MCCP Act to which I have referred.
During his exchange with the parties on 6 July 2018 the learned magistrate made clear the orders he was proposing. The appellant was not denied a reasonable opportunity to present her argument: see Cameron v Cole [1944] HCA 5; Rankilor v Circuit Travel Pty Ltd 2010 WADC 170. She was not denied natural justice by the learned Magistrate in making those orders.
The appeal is dismissed. Costs ought to follow the event and as such the respondent ought to have the costs of the appeal to be taxed. I do not consider it appropriate to fix those costs. Those costs will not extend to the costs of preparation of the application pursuant to s 43 of the MCCP Act and the supporting affidavit given that counsel accepted that grounds 1 ‑ 3 of the notice of appeal were in the main arguable. As a consequence the matters the subject of the application were subsumed in the appeal and as such it would not be fair nor appropriate to order the appellant to pay the additional costs of the application and the affidavit.
The orders are:
1.The appeal be dismissed.
2.The appellant pay the respondent's costs of the appeal to be taxed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KM
Associate to Judge Scott19 DECEMBER 2018
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