Re Malley; [No 2]
[2015] WASCA 96
•15 MAY 2015
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 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.
The primary judge concluded that the s 36 application was an inappropriate procedure in circumstances where it was evident that the appellant's substantive complaint was the dismissal of her claim. His Honour pointed out that an appeal against the judgment dismissing the claim could correct any interlocutory order that caused substantial injustice or otherwise affected the final judgment. He ordered, 'pursuant to s 36(5)(a)' [sic, s 36(5)(b)], of the Magistrates Court (Civil Proceedings) Act that the s 36 application be treated as if it were an appeal and be remitted to the District Court to be dealt with accordingly.
The appellant has appealed to this court against the decision of the primary judge. Before turning to the substance of the appeal, it is necessary to trace some of the procedural history.
The appeal notice was filed on 23 October 2014 and the appellant's case on 27 November 2014. On 31 December 2014, 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 had a reasonable prospect of succeeding was sent to the appellant. The return date of the Notice was 21 January 2015. On 15 January 2015, at the appellant's request, the hearing date was vacated. The matter was relisted for 2 February 2015.
On 23 January 2015, the appellant applied for the 2 February 2015 hearing date to be vacated, saying that it did not give her sufficient time to prepare the appeal for hearing. In the same application, the appellant sought leave to amend the appellant's case. No indication was given of the nature of the amendment proposed.
The hearing on 2 February 2015 was not vacated but at that hearing the appellant was ordered to file and serve any proposed amended appellant's case, together with an affidavit and submissions in support of the proposed amendments, by 23 February 2015, and the matter was adjourned to a date to be fixed.
The appellant did not file a proposed amended appellant's case. When the matter came on for hearing on 19 March 2015 the appellant sought a further adjournment. The appellant said she had first received notice of the hearing date on 16 March 2015 and that had not given her sufficient time to prepare her oral submissions, a contention which she then contradicted by producing written submissions which she sought to hand up.
The adjournment application was refused and the appellant was required to make any oral submissions she wished to make on the subject‑matter of the Notice. She was, however, also given leave to file and serve any written submissions and an affidavit within 21 days. The written submissions produced in court, together with an affidavit, were filed on 19 March 2015, shortly after the hearing. We have had regard to that material.
The grounds of appeal
The appellant relies on two grounds of appeal, as follows:
1.The discretion should be exercised by [the primary judge] under s 36(4)(b) of the Magistrates Court Act 2004 (WA) not under s 36(5)(a).
2.That the Application filed by the Appellant (Plaintiff) dated 12 September 2014 pursuant to s 36 of the Magistrates Court Act 2004 (WA) should have been proceeded under [sic] case management in the Supreme Court on 2 October 2014 (as was listed so that day) under the Supreme Court Rules 29 and 29A.
Disposition of the appeal
The appeal is without merit. There was no error in the exercise of the discretion of the primary judge.
Section 36 of the Magistrates Court Act relevantly provides:
(1)If a person is or would be aggrieved by one or more of the following:
…
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order for certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
…
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
…
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
(5)On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -
…
(b)if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
On the first ground of appeal, it is quite clear that the primary judge's reference to s 36(5)(a) of the Act was a slip and that he was in fact referring to s 36(5)(b). Nothing turns on that.
As to the second ground of appeal, the appellant's substantive complaint, as the primary judge observed, is that her claim against Mr Lewis was dismissed. It would appear, however, that the appellant was under the misapprehension that if she wished to challenge that decision she must first have the order of Magistrate Langdon refusing the application for leave to adduce further expert evidence set aside. It seems the appellant brought the s 36 application with that in mind. But, as the primary judge pointed out, it was an entirely unnecessary and inappropriate step. An appeal against the judgment dismissing the claim could correct any error (if there be any error) in the interlocutory order of Magistrate Langdon if that order caused substantial injustice or otherwise affected the final judgment: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 [4] ‑ [8].
An appeal from the decision of Magistrate Malley to dismiss the appellant's action lay to the District Court under s 40 of the Magistrates Court (Civil Proceedings) Act. If the appellant wished to challenge that decision the appropriate course was to lodge such an appeal. The effect of the orders made by the primary judge is that the s 36 application will now be heard as if it were such an appeal. The appellant's contention that his Honour should instead have heard and determined the substantive merits of the s 36 application is without substance. His Honour did not err in the exercise of his discretion by ordering that the matter be remitted to the District Court to be heard as an appeal.
The appeal from his Honour's decision has no reasonable prospect of success.
Conclusion
The appeal is dismissed.
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