Re Malley; [No 2] - [2015] WASCA 96

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE MALLEY; EX PARTE TEY [No 2] [2015] WASCA 96

CORAM: NEWNES JA
MURPHY JA

HEARD: 19 MARCH 2015

DELIVERED : 15 MAY 2015

FILE NO/S: CACV 137 of 2014
EX PARTE
KOK YONG TEY
Appellant

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BEECH J
File No  :CIV 2296 of 2014

Catchwords:

Practice and procedure - Whether any ground of appeal has reasonable prospect of succeeding - Trial in Magistrates Court - Application to review decision - Magistrates Court Act 2004 (WA), s 36(1) - Whether primary judge erred in ordering application to be treated as appeal and remitted to District Court under s 36(5)(b)

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Magistrates Court Act 2004 (WA), s 36(1), s 36(5)(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person

Solicitors:

Appellant: In person

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

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478

JUDGMENT OF THE COURT: This is an appeal from a decision of Beech J who ordered, pursuant to s 36(5)(b) of the Magistrates Court Act2004 (WA), that an application made by the appellant under s 36(1) of that Act be treated as if it were an appeal and remitted to the District Court for determination as an appeal under the Magistrates Court (Civil Proceedings) Act 2004 (WA).
The appeal has come before the court on a registrar's notice to attend to show cause why the appeal should not be dismissed on the ground that none of the grounds of appeal has any reasonable prospect of succeeding.
In our view, for the reasons which follow, the appeal should be dismissed.

Background

In 2006, the appellant commenced proceedings in the Magistrates Court against her neighbour, Mr Lewis. The precise nature of the claim does not appear from the documents on the appeal but it seems to have related to damage to the appellant's property that she alleged was caused by work being carried out on Mr Lewis' property.
On 19 January 2014, the trial of the action was set down to commence on 18 August 2014. The reason for what seems to be an extraordinary delay in getting to trial is not apparent. It appears, however, that each side intended to call an expert witness at the trial and in the course of the proceedings orders as to expert evidence were made, including (relevantly) an order on 19 February 2014 that the appellant have leave to file and serve further expert evidence at any time prior to 30 days before the hearing.
It seems that as the trial date approached the appellant became dissatisfied with the expert she had engaged and, on 21 July 2014, she applied to the Magistrates Court for an order that either party have leave to file and serve further expert evidence on or before 18…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASCA 96
Decision Date: 15 MAY 2015

CaseChat Overview and Summary

The appeal is brought by the appellant, who was a party in proceedings in the Magistrates Court. The appeal is against a decision of Beech J, who ordered that an application made by the appellant under s 36(1) of the Magistrates Court Act 2004 (WA) be treated as an appeal and remitted to the District Court for determination under s 36(5)(b) of that Act. The appellant's claim related to damage to her property, allegedly caused by work carried out by her neighbour, Mr Lewis. After the trial was set down for August 2014, the appellant applied to the Magistrates Court for an order that either party have leave to file and serve further expert evidence. The application was refused by Magistrate Langdon, and the trial proceeded with the appellant's claim being dismissed. The appellant did not appeal to the District Court but instead sought to have the order set aside in the General Division of this court under s 36 of the Magistrates Court Act, focusing on the refusal of her application by Magistrate Langdon. The primary judge granted leave to amend the application to include a claim that the appellant was denied procedural fairness by the decision of Magistrate Langdon. The court was required to determine whether the primary judge erred in treating the application as an appeal and remitting it to the District Court. The court considered the grounds of appeal and the prospect of success in the appeal. The court found that the appeal should be dismissed as none of the grounds of appeal had a reasonable prospect of succeeding.

The court examined the application under s 36 of the Magistrates Court Act and the circumstances surrounding the refusal of the appellant's application by Magistrate Langdon. The court noted that the appellant did not appeal to the District Court against the order dismissing her claim but instead sought to have that order set aside in the General Division of the court. The primary judge ordered that the application be treated as an appeal and remitted it to the District Court. The court found that the primary judge did not err in treating the application as an appeal and remitting it to the District Court, as the application sought to have the order of Magistrate Malley set aside on the ground that the appellant had been denied procedural fairness. The court also found that the appellant had not shown that any of the grounds of appeal had a reasonable prospect of succeeding. The court concluded that the appeal should be dismissed. The court found that the primary judge did not err in treating the application as an appeal and remitting it to the District Court, and that the appellant had not shown that any of the grounds of appeal had a reasonable prospect of succeeding. The appeal was dismissed, and no order was made as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an appeal from a decision of Beech J who ordered, pursuant to s 36(5)(b) of the Magistrates Court Act2004 (WA), that an application made by the appellant under s 36(1) of that Act be treated as if it were an appeal and remitted to the District Court for determination as an appeal under the Magistrates Court (Civil Proceedings) Act 2004 (WA). The appeal has come before the court on a registrar's notice to attend to show cause why the appeal should not be dismissed on the ground that none of the grounds of appeal has any reasonable prospect of succeeding. In our view, for the reasons which follow, the appeal should be dismissed. In 2006, the appellant commenced proceedings in the Magistrates Court against her neighbour, Mr Lewis. The precise nature of the claim does not appear from the documents on the appeal but it seems to have related to damage to the appellant's property that she alleged was caused by work being carried out on Mr Lewis' property. On 19 January 2014, the trial of the action was set down to commence on 18 August 2014. The reason for what seems to be an extraordinary delay in getting to trial is not apparent. It appears, however, that each side intended to call an expert witness at the trial and in the course of the proceedings orders as to expert evidence were made, including (relevantly) an order on 19 February 2014 that the appellant have leave to file and serve further expert evidence at any time prior to 30 days before the hearing. It seems that as the trial date approached the appellant became dissatisfied with the expert she had engaged and, on 21 July 2014, she applied to the Magistrates Court for an order that either party have leave to file and serve further expert evidence on or before 18 August 2014. When the application came on for hearing before Magistrate Langdon on 13 August 2014, it was opposed by counsel for Mr Lewis on the ground, in substance, that it would require the trial to be adjourned. Magistrate Langdon refused the application. The trial proceeded on 18 August 2014 before Magistrate Malley. In the result, the appellant's claim was dismissed and the appellant was ordered to pay Mr Lewis' costs of the action. The appellant sought to take the matter further. She did not, however, take the course of appealing to the District Court, pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act, against the order dismissing her claim. Instead, the appellant brought an application in the General Division of this court under s 36 of the Magistrates Court Act (the s 36 application) seeking to have the order of Magistrate Malley set aside. The grounds endorsed on the s 36 application focussed, however, on what was alleged to be a denial of procedural fairness in relation to Magistrate Langdon's dismissal of the appellant's application of 21 July 2014. When, on 2 October 2014, the s 36 application came before the primary judge, the appellant sought, and was granted, leave to amend it to seek a further order that the dismissal of the appellant's application of 21 July 2014 by Magistrate Langdon be set aside on the ground that the appellant had been denied procedural fairness. At the hearing, the appellant's submissions were again focussed primarily on the decision of Magistrate Langdon.

Ratio Decidendi

Legal Principle Established

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