ROBERTS v SOUTHERN Pumps t/as SOUTHERN ELECTRICS
[2016] WADC 79
•24 MAY 2016
ROBERTS -v- SOUTHERN PUMPS t/as SOUTHERN ELECTRICS [2016] WADC 79
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 79 | |
| 24/05/2016 | |||
| Case No: | APP:102/2015 | 20 MAY 2016 | |
| Coram: | DERRICK DCJ | 20/05/16 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time to appeal dismissed Appeal dismissed | ||
| PDF Version |
| Parties: | BRIAN RAY ROBERTS SOUTHERN PUMPS t/as SOUTHERN ELECTRICS |
Catchwords: | Appeals Application for leave to appeal out of time from a decision in Magistrates Court Minor case claim Default judgment Natural justice |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA) District Court Rules 2005 (WA) Magistrates Court (Civil Proceedings) Rules 2005 (WA) |
Case References: | Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Lance v Hogerdyk [2013] WADC 190 National Companies and Securities Commission v The News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296 Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 Re Burton; Ex parte Lowe [2003] WASCA 306 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128 Simonsen v Legge [2010] WASCA 238 Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR (WA) 254 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
SOUTHERN PUMPS t/as SOUTHERN ELECTRICS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE WATT
File No : ALB CTC 115 of 2015
Catchwords:
Appeals - Application for leave to appeal out of time from a decision in Magistrates Court - Minor case claim - Default judgment - Natural justice
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA)
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Rules 2005 (WA)
Result:
Application for an extension of time to appeal dismissed
Appeal dismissed
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : Not applicable
Respondent : Not applicable
Case(s) referred to in judgment(s):
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Lance v Hogerdyk [2013] WADC 190
National Companies and Securities Commission v The News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Burton; Ex parte Lowe [2003] WASCA 306
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128
Simonsen v Legge [2010] WASCA 238
Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR (WA) 254
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
DERRICK DCJ:
[This judgment was delivered extemporaneously on 20 May 2016 and has been edited from the transcript]
Introduction
1 The appellant appeals from a decision of a magistrate giving default judgment in his favour pursuant to s 19(2)(b) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act). The appellant's complaint is that the magistrate did not, as part of the default judgment, order the respondent to pay an amount of $990 in respect of the appellant's costs of obtaining an expert report.
2 The appellant appeared in person at the hearing of the appeal.
3 Prior to the hearing of the appeal the respondent filed a notice indicating 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 accordance with the notice there was no appearance for the respondent at the hearing of the appeal.
4 In order to deal with the appeal I have, as is provided for under the District Court Rules 2005 (WA) (the DCR), had access to a copy of the relevant Magistrates Court file. A copy of the Magistrates Court file was provided to this court by the Magistrates Court pursuant to r 52(3) of the DCR. The file contains copies of not only all court documents relating to the appellant's claim and the respondent's defence to the claim, but also the transcript of the hearing at which the magistrate granted default judgment to the appellant.
Background to the appeal
5 On 19 February 2015 the appellant commenced a minor case claim in the Albany Magistrates Court against the respondent. By his statement of minor case claim the appellant alleged that a wind turbine that he had purchased from the respondent in January 2013 had on the night of 9 September 2014 malfunctioned, fallen down and broken into pieces. Thus the appellant alleged, in substance, that the wind turbine was not fit for the purpose for which it had been sold to him by the respondent. The appellant claimed the sum of $4,906 being the alleged replacement cost of the turbine. The appellant also claimed interest and costs. The respondent, at least initially, defended the claim.
6 On 2 September 2015 the appellant filed an application for an order that:
… [I]n addition to the replacement cost of the wind turbine, the Defendant pay any of the Claimant's costs associated with lowering the pole on which the turbine is to be mounted, raising the pole and reconnecting the circuit, that amount being $2,463; or in the alternative, the Claimant have liberty to file an amended Form 6.
7 In support of his application the appellant filed an affidavit sworn by him on 31 July 2015 in which he stated, in effect, that in making his claim against the respondent he omitted to include the cost of mounting any replacement turbine on a 25 m pole, such cost being $2,463.
8 On 12 October 2015 the court made orders granting leave to the appellant to amend his claim to '$7,463.70 including costs' and adjourning the matter to a trial listings hearing on 23 November 2015. In making the order granting leave to the appellant to amend his claim the court did not specify what costs were included in the $7,463.70. When I asked the appellant during the hearing of the appeal if he could tell me what the included costs were he was, perhaps not surprisingly, unable to do so. However, given that the appellant's claim was a minor case claim the included costs were presumably 'allowable costs' as defined in s 31(1) of the Act: the Act s 25(2), s 31(2).
9 On 23 November 2015 the appellant appeared at a trial listings hearing before her Honour Magistrate Watt. There was no appearance for the respondent at the hearing. At the hearing the following exchange occurred between the magistrate and the appellant (ts 2 - 3):
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10 On the same date the court issued a formal order in the following terms:
Default Judgment against Defendant in the sum of $7,463.70 for benefit of Claimant.
Grounds of appeal
11 On 17 December 2015 the appellant filed his appeal notice. The notice is apparently prepared and signed by a lawyer, Mr M Montague, of the Albany Community Legal Centre Inc (the Albany Legal Centre). The notice is signed by Mr Montague as the appellant's lawyer. The grounds of appeal as expressed in the appeal notice are as follows:
1. The Magistrate erred in failing to apply her discretion pursuant to s 25(1) [of the Act] to order that the Respondent pay the costs of the Appellant's expert witness report. By failing to apply this discretion, the Appellant submits that there was a denial of natural justice in accordance with s 32(3)(b) of the Act; and
2. Pursuant to s 31(3)(a) of the Act, exceptional circumstances exist in that it is manifestly unjust for the successful party to pay the expert witness's costs, namely, the sum of $990. The Appellant lives on a Carer's Pension and supports his chronically ill wife. The judgment sum will not cover the replacement costs for the wind turbine, the subject of the claim. The expert witness cost is a further expense borne by the Appellant.
12 The appellant has not sought leave to adduce any evidence in the appeal in support of his assertion that the cost of obtaining the expert report was $990: the Act, s 40(4)(b). Nor is there any documentation on the Magistrates Court file which indicates that the appellant incurred a cost of $990 in obtaining his expert report. However, during the hearing of the appeal the appellant confirmed from the bar table that he did incur the cost of $990. I am satisfied that he did.
Statutory provisions and principles governing the appeal
13 It is necessary, before turning to deal with the appeal, to refer to the relevant legislative provisions governing appeals to this court from decisions of magistrates.
14 The appellant's right to appeal against the decision of the magistrate is created by s 40 of the Act. Section 40 relevantly provides:
(1) A party to a case that is not a minor case may appeal to the District Court 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.
(2) An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
(3) An appeal cannot be commenced more than 21 days after the date of judgment unless the District Court gives leave to do so.
(4A) The appeal must be conducted in accordance with rules of court made by the District Court.
(4) The District Court must decide the appeal on —
(a) the material and evidence that were before the Magistrates Court; and
(b) any other evidence that it gives leave to be admitted.
…
(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; or
…
(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;
or
(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.
17 Section 19(3) of the Act provides that the court may set aside a judgment given under s 19(2) and may do so on conditions as to the payment of costs or as to other matters. However, under r 79 of the Magistrates Court (Civil Proceedings) Rules 2005 an application for an order under s 19(3) 'must be made within 21 days after the date of the judgment'. In the present case the respondent has not made an application to set aside the default judgment granted in favour of the appellant. The respondent is therefore now precluded from doing so, the 21 day period having well and truly expired. It follows, in my view, that the default judgment granted by the magistrate to the appellant is a judgment within the meaning of s 32(2) of the Act in the sense that it is binding and enforceable between the parties and determines the appellant's claim. In other words, in my opinion, the default judgment is a judgment from which the appellant can appeal on one of the grounds specified in s 32(3). Even if contrary to my opinion the default judgment is not a judgment for the purposes of s 32(2), it is clearly an order made by the Magistrates Court in the course of the appellant's minor case proceedings.
Application for extension of time
18 The judgment which the appellant appeals against was entered on 23 November 2015. The time for the filing of the appellant's appeal notice therefore expired on 14 December 2015. The appeal notice, as I have already said, was not filed until 17 December 2015. It follows that the appellant must obtain the leave of the court to commence the appeal out of time under s 40(3) of the Act.
19 The appellant has stated in the appeal notice that an extension of time within which to appeal is required. He has not, contrary to r 51(2) of the DCR, filed an affidavit explaining why the appeal was not commenced within time. There is, however, on this court's file a letter sent to the principal registrar of the court from Mr Montague dated 17 December 2015. In his letter Mr Montague states that the Albany Legal Centre is assisting the appellant. Under the heading 'Extension of time' Mr Montague says the following:
We respectfully seek leave to file the Appeal Notice 3 days after the last date for appealing.
The Appellant does not live in Albany where our offices are located. Further, when the judgment was issued I was on leave. When I returned I was unable to advise him with respect to the issue raised in the appeal notice until 15 December 2015 or the day after the last date for appealing.
20 Despite the procedural deficiencies in the way that the appellant has made his application for an extension of time within which to appeal, I will deal with the merits of the application.
21 In Simonsen v Legge [2010] WASCA 238 [8] the court set out the matters which need to be considered when a party seeks an extension of time within which to appeal. The matters set out in Simonsen v Legge have been applied in this court in relation to s 40(3) of the Act: see Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128; Lance v Hogerdyk [2013] WADC 190; Smith v Mandurah Auto Pty Ltd [2014] WADC 69; (2014) 86 SR (WA) 254, 260. In my view it is appropriate to apply the statements made in Simonsen v Legge to an application under s 40(3).
22 It is clear from Simonsen v Legge that the major, although not necessarily the only, matters which need to be considered in determining an application for an extension of time within which to appeal are:
1. The length of the delay;
2. The reason for the delay;
3. The prospects of the applicant succeeding in the appeal; and
4. The extent of any prejudice to the respondent.
23 In the present case the delay is minimal. The delay is in my view adequately explained in Mr Montague's letter. The respondent, given that it has decided not to play an active role in the appeal, will clearly not be prejudiced if the requested short extension of time is granted. Accordingly, three of the above stated factors relevant to the determination of the application for an extension of time point in favour of the application being granted. However, as the court stated in Simonsen v Legge, the time for appealing will not be extended unless the proposed appeal has some prospect of success. It is therefore necessary at this point to turn to deal with the substance of the appellant's grounds of appeal.
Ground 1
24 By the first ground of appeal the appellant alleges, in substance, that the magistrate denied him natural justice, by failing to exercise her discretion to order as part of the default judgment that the respondent pay the appellant's cost of obtaining the expert report. Given that the cost of obtaining the expert report was not an 'allowable cost' within the meaning of s 25(1) of the Act, the magistrate's discretion referred to in this ground of appeal is that created by s 30(3) of the Act.
25 The ground of appeal alleges a denial of natural justice. Therefore the ground is one on which the appellant can appeal against the default judgment: the Act, s 32(3)(b).
26 The rules of natural justice have two substantive requirements. The first is that a person making a claim, or against whom a claim is made, must be given a reasonable opportunity of appearing and presenting his or her case: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, 4; Hoskins v Van Den-Braak (1998) 43 NSWLR 290, 294; Re Burton; Ex parte Lowe [2003] WASCA 306 [63]. The second is that the decision maker be a person who is disinterested or unbiased in the matter to be decided: Re Burton [63].
27 What amounts to a reasonable opportunity to present a case depends on the circumstances of the case including the nature of the jurisdiction, the subject matter that is being dealt with and the statutory provisions governing the power or jurisdiction being exercised: National Companies and Securities Commission v The News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296, 311 - 312; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 – 585; Re Burton [64]; Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [57] – [58]. Thus the requirements of natural justice in the present case are to be viewed in the context of the minor case procedure in the Magistrates Court: Rankilor v Circuit Travel Pty Ltd [58].
28 It is clear that as a general rule a person will not be afforded a reasonable opportunity to present his or her case if he or she is not entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 - 592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22]. This entitlement extends to the right to rebut or qualify by further information, and comment by way of submission upon, adverse material from other sources which is put before the decision maker: Commissioner for Australian Territory Revenue v Alphaone (591 - 592); Re Minister for Immigration; Ex parte Palme [22].
29 The affording to a party of a reasonable opportunity to present his or her case does not require a court to undertake the task of ensuring that a party takes the best advantage of the opportunity that he or she had to present his or her case: Rankilor v Circuit Travel Pty Ltd [55] - [60].
30 In this case it is not asserted by the appellant that the magistrate was anything other than disinterested or unbiased. Rather, the appellant's contention is that he was not given a reasonable opportunity to present his case or, more specifically, to request the magistrate to include in any default judgment an amount in respect of the cost he incurred in obtaining the expert report.
31 As is apparent from the above statements of principle, a mere failure to exercise a discretion to make a decision in favour of a party does not of itself amount to a denial of natural justice. The question is whether, in arriving at the decision, the decision-maker gave the person a reasonable opportunity to present his or her case.
32 In the present case the magistrate drew the appellant's attention to the fact that the amount of his claim had previously been amended. Indeed, she expressly referred to the amended amount of the claim as being $7,463.70. The magistrate asked the appellant on two separate occasions if he would like to apply for default judgment. On each of these occasions the appellant responded affirmatively. The magistrate explained to the appellant the effect of her granting him default judgment. In making the order for default judgment the magistrate expressly stated and told the appellant that she had made judgment in default of the respondent's non-appearance in the sum of $7,463.70 for his benefit. Further, when I asked the appellant during the hearing of the appeal why he did not raise the issue of the cost of the expert report with the magistrate he informed me that he did not do so because he did not realise that he had to ask 'then and there' for his 'out of court' costs. In these circumstances there is, in my view, no basis for saying that the magistrate failed to give the appellant the opportunity to request that any default judgment order include an amount of $990 to cover the cost incurred by him in obtaining the expert report. The appellant had ample opportunity to make this request. He failed to do so. It was not, even taking into account the fact that the appellant was appearing in person, for the magistrate to specifically inquire of the appellant whether, despite the fact that the amount of his claim had already previously been amended and increased, he wanted to ask for the judgment to include any costs not already included in the amount of $7,463.70. In these circumstances it is my opinion that the appellant's contention that he was denied natural justice is devoid of merit.
Ground 2
33 The appellant's second ground of appeal is not a ground that falls within any of the permitted grounds specified in s 32(3) of the Act. It is simply a complaint about the magistrate's failure to make an award of costs under s 31(3)(a) of the Act in respect of the cost incurred by the appellant in obtaining the expert report. Accordingly, the court does not have jurisdiction to deal with the ground of appeal.
Conclusion
34 For the reasons stated neither of the appellant's grounds of appeal has any merit. I therefore dismiss the application for an extension of time within which to appeal and dismiss the appeal. I will make no order as to costs.
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