Saldanha v Fujitsu Australia Ltd
[2010] WADC 43
•31 MARCH 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SALDANHA -v- FUJITSU AUSTRALIA LTD [2010] WADC 43
CORAM: WAGER DCJ
HEARD: 19 FEBRUARY 2010
DELIVERED : 31 MARCH 2010
FILE NO/S: APP 88 of 2009
BETWEEN: MARINA SALDANHA
Appellant
AND
FUJITSU AUSTRALIA LTD
Respondent
Catchwords:
Appeal against Magistrate's order striking out minor case claim - Striking out based upon "abuse of courts process" - Whether splitting claim to comply with minor case legislation could be characterised as an abuse of the court's process
Legislation:
Limitation Act 1935
Magistrates Court Act 2004
Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court (Civil Proceedings) Rules 2005
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Respondent: Ms F A Stanton
Solicitors:
Appellant: Not applicable
Respondent: McCallum Donovan Sweeney
Case(s) referred to in judgment(s):
Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Gronow v Gronow (1979) 144 CLR 513
House v R (1936) 55 CLR 499
Lee v St George Bank Ltd [2006] WASC 221
Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
Wise & Anor v Proprietors of Strata Plan 21513 [2009] WADC 115
WAGER DCJ: Ms Saldanha commenced a minor case claim against her former employer Fujitsu Australia Ltd (Fujitsu) for unpaid salary ($770), an outstanding incentive payment ($730) and for compensation for being forced to work 40 hours per week instead of the contracted 37.5 hours per week between April 2001 and June 2003 ($8,400). The total claim for $9,900 was filed on 29 June 2009.
Fujitsu filed an application to strike out Ms Saldanha's claim supported by a detailed affidavit setting out the history of earlier proceedings and correspondence between Ms Saldanha and Fujitsu.
The history as set out in the affidavit is that Ms Saldanha had proceeded against Fujitsu in the Western Australian Industrial Relations Commission for compensation for working a 40‑hour week when she had been paid for a 37.5‑hour week over a period spanning 2001 to 2008. The Full Bench of the Industrial Appeal Court determined that the Industrial Relations Commission did not have jurisdiction to deal with Ms Saldanha's application. Following the Industrial Appeal Court's decision Ms Saldanha stated in open correspondence to Fujitsu's solicitors dated 15 April 2009:
"Re the matter regarding my claim for working in excess of 37.5 hours per week, I think it is best dealt with in the Magistrates Court. Thank you for informing me that I'm likely to have an order for costs made against me in favour of Fujitsu. However I wonder how that is possible given that I told you that I'm going to split my claims so that they are under $10,000 each, thus eliminating the need for lawyers."
Correspondence from Fujitsu's solicitors to Ms Saldanha in reply dated 5 May 2009 raised that a splitting of the claim into two or more actions to fit within the minor case jurisdiction limit would be an abuse of process. The correspondence also referred to the incentive claim and salary claim.
By letter dated 15 June 2009 Fujitsu's solicitors referred to their previous correspondence when Ms Saldanha had been put on notice that Fujitsu would object to the action being commenced by being split. Fujitsu also sought written advice from Ms Saldanha of any intention to commence any additional action and the basis for any claim over and above the minor case claim she had filed. Fujitsu's application also raised the claim that Ms Saldanha's claim was statute‑barred. Fujitsu applied to have legal representation for the hearing of the application.
Fujitsu's application to strike out Ms Saldanha's claim came before Magistrate Boon on 14 September 2009 when Magistrate Boon adjourned the determination of the application so that Ms Saldanha could obtain legal advice. Her Honour advised Ms Saldanha on 14 September 2009 that if she received legal advice that her claim was statute‑barred then Ms Saldanha could communicate with Fujitsu to attempt to amend the dates pleaded in her claim. Her Honour told Ms Saldanha that if Fujitsu did not agree to an amendment of the dates then Ms Saldanha could file an application to amend the dates of her claim.
An ex parte application to amend the third part of her claim relating to compensation so that the majority of the dates were not statute‑barred was subsequently filed by Ms Saldanha.
A further application was later filed by Ms Saldanha seeking to have Fujitsu's application in relation to her claim struck out on the basis that Fujitsu had failed to lodge its response to her claim within the stipulated period outlined in s 9(1) Magistrates Court (Civil Proceedings) Rules 2005.
On 26 October 2009 her Honour Magistrate Boon struck the whole of Ms Saldanha's claim out for two reasons, firstly because the dates of the third part of the claim for compensation were statute‑barred being dates relating to a period of more than six years before the action was commenced (s 38 Limitation Act) and, secondly, because Ms Saldanha had placed nothing before the Magistrate to negate Fujitsu's application that Ms Saldanha had a clear intention of splitting her claim because her actual claim was for a larger amount than the jurisdictional limit of $10,000. Her Honour Magistrate Boon also dismissed Ms Saldanha's application to amend the claim. Ms Saldanha was advised by her Honour Magistrate Boon that another claim would have to be filed if Ms Saldanha chose to proceed with a claim in relation to non‑payment of compensation for a time period other than that originally pleaded in her claim.
Her Honour Magistrate Boon ordered that Ms Saldanha pay Fujitsu's costs pursuant to s 31(3)(a) and s 31(3)(b) Magistrates Court (Civil Proceedings) Act 2004 (the Act) because her Honour determined that the claim was an exceptional case because it was an abuse of process without merit and it was statute‑barred.
Her Honour did not deal specifically with Ms Saldanha's application to strike out Fujitsu's application because Fujitsu had failed to lodge its response to the claim within the stipulated period. This application was listed to be heard on 2 November 2009 but fell away in light of the claim being struck out.
Magistrates Court (Civil Proceedings) Act 2004
The Magistrates Court has general civil jurisdiction to deal with claims including a claim for a debt (s 6 of the Act). There is no statutory exclusion of the Limitation Act. Pursuant to s 38 of the Limitation Act the claim must be brought within six years.
Part 4 of the Act sets out the procedure for minor cases. The jurisdictional limit is presently $10,000. This matter was dealt with as a minor claim.
Section 30 deals with representation of parties on minor case claims. An agent is defined to mean a legal practitioner or any other person. A party will usually not be entitled to representation on a minor case claim, however s 30(6) provides:
"If it appears to the court that it should give leave for a party to be represented by an agent, the Court –
…
(b)may give leave subject to any reasonable conditions needed to ensure that none of the other parties will be unfairly disadvantaged as a result."
The Court has the power to strike out a claim under s 17 of the Act. Section 17(1) provides:
"The Court may strike out all or a part of a case statement (that is the statement of a parties' claim) if –
(a)any claim in it is outside the Court's jurisdiction;
…
(d)it is an abuse of the Court's process; or
(e)it is frivolous, vexatious, scandalous or improper."
Section 31 of the Act deals with the issue of costs. Relevantly the section states:
"31(2)A successful party to a minor case is entitled to an order under s 25(1) (being the general costs provision in the Act) in relation to the party's allowable costs but not in relation to the party's other costs in the case.
(3)Despite subsection (2) the Court may make an order under s 25(1) as to the payment of the party's other costs by another party if it is satisfied that –
(a)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; or
(b)the unsuccessful party's claim or defence was wholly without merit."
Minor case appeal – notice of appeal
The possible grounds for an appeal against a minor case claim are set out in s 32(3) of the Act. An appeal can 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)the judgment was beyond the court's jurisdiction.
Ms Saldanha has filed 44 grounds of appeal. The grounds of appeal are divided into sections:
Section 1.Errors of law and denial of natural justice (grounds 2 to 24).
Section 2.Costs (grounds to 25 to 28).
Section 3.Overview of claim 3 (grounds 29 to 33).
Section 4.Overview of claims 1 and 2 (grounds 34 to 37).
Section 5.Orders (grounds 38 to 40).
Section 6.Other concerns (grounds 41 to 44).
In oral submission Ms Saldanha agrees in part that the appeal is limited to the grounds that there was a denial of natural justice and that her grounds relating to the fairness to the parties and the right to present the case and to be heard were the relevant matters for consideration on appeal. There is no statutory provision for errors of fact or law to be considered by appeal.
Affidavit of Marina Saldanha sworn 16 February 2010 in support of the appeal
Ms Saldanha has filed a seven page affidavit with annexures in support of the appeal. The affidavit contains:
•Par 3, reference to subsequent dealings with Fujitsu's solicitors in relation to the clarification of Ms Saldanha's name;
•Pars 11 – 15, allegations and questions on the taxation of costs performed by Mr Miles, Registrar;
•Pars 17 – 19, questions in relation to the form of the Court's orders;
•Pars 20 – 22, assertions in relation to the lodgement of a complaint regarding the proceedings in the Magistrates Court and lodgement of complaint against Ms Stanton.
Fujitsu submits that these paragraphs of the affidavit contain scandalous, irrelevant or otherwise oppressive matter that should be removed from the Court file pursuant to O 37 r 7 Rules of the Supreme Court. It is noted in Seaman "Civil Procedure" at par 37.7.1 to par 37.7.3 that matter can be regarded as scandalous if it contains unnecessary allegations bearing upon the moral character of individuals or exceeds the necessity for which evidence is being led. The author states at par 37.7.1:
"Scandal consists in the allegation of anything which is unbecoming to the dignity of the court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause; to which may be added that any unnecessary (not relevant to the subject) allegation bearing cruelly upon the moral character of an individual is also scandalous: Legal Practice Board v Said (1994, Library No 940003, unreported).
Relevant material will not be struck out as scandalous, but if scandalous material is contained in affidavits, they should not be allowed to let lie on the file. Rather, application should be made to purge them of the scandalous matter: Rossage v Rossage (1960) 1 All ER 600 at 602; (1961) WLR 249 at 252."
(See Solomon v The Psychologists Board of Western Australia [2000] WASCA 266 Hasluck J.)
The references in the affidavit to the solicitor's intention in attempting to clarify Ms Saldanha's name, the allegations in relation to Mr Miles and reference to professional complaints are matters that should be excised from the Court file because they are scandalous and irrelevant. Although pars 17 to 19 in relation to the form of final orders may not be relevant to the appeal, the content is not objectionable. Paragraphs 17 to 19 will remain on the Court file, however pars 3, 11 to 15 and 20 to 22 will be excised from the Court file.
Did the Magistrate deny procedural fairness in deciding that the claim could not be amended?
The total time period of the alleged underpayment for which compensation was sought is from April 2001 to 2007/2008. The claim the subject of this appeal relates to April 2001 to June 2003 being approximately one‑third of the alleged underpayment period.
After being put on notice by Fujitsu's counsel that the claim was statute barred and after hearing the comments of her Honour Magistrate Boon on 14 September 2009 that if Fujitsu did not agree to Ms Saldanha amending her claim, then an application to amend would have to be filed, Ms Saldanha filed the ex parte application seeking to have the dates of her claim amended to cover a three-year period from April 2003 to June 2007. Given that the claim was filed on 29 June 2009 the period from April 2003 until the end of June 2003 (if the amendment had been allowed) would still have been statute‑barred.
At the hearing on 26 June 2009 her Honour accepted Fujitsu's submission that a claim for work that was performed between 2001 and 2003 that was statute‑barred could not be cured by changing the dates of the claim because it involved a totally different period of employment and a different period of underpayment involving different sums would then be pleaded. Her Honour accepted that it was not the obligation of Fujitsu to clarify the claimant's case. Her Honour found that a new claim had to be filed so that the terms of the claim were clear and her Honour explained to Ms Saldanha that although her claim could not be amended, there was nothing precluding Ms Saldanha from commencing a new claim. Her Honour held that the amendment sought to the claim contained statute‑barred dates but that even if this was not the case the claim was an impermissible claim (T 27, 26 October 2009).
Her Honour had an obligation to ensure that natural justice was extended to all parties in the proceedings. I consider that her Honour properly accepted that Fujitsu had a right to know the claim that it was to meet and that Fujitsu was entitled to be clear on the particulars of the claim. Her Honour's determination that Fujitsu would have been compromised in relation to the claim it had to meet had the amendment been allowed is consistent with her Honour's findings. The presiding Magistrate did not deny procedural fairness in deciding that the claim could not be amended.
Did the Magistrate hear sufficient argument in relation to the issue of Ms Saldanha splitting her claim so that it could be dealt with as a minor case?
Fujitsu's application to strike out the claim was supported by affidavit. Ms Saldanha did not file an affidavit in reply in respect of Fujitsu's claim. It is submitted by Ms Saldanha that the presiding Magistrate failed to consider the merits of the case that were put forward by Ms Saldanha, however no evidence relevant to the case splitting objection was presented by Ms Saldanha to her Honour.
Fujitsu's application in support of the application to strike out and its correspondence relating to dealings between Ms Saldanha and Fujitsu, including Ms Saldanha's correspondence indicating her intention to split the case. Although the substantive application was not heard on 14 September 2009, the relevant correspondence attached to Fujitsu's affidavit was brought to Ms Saldanha's attention on that date. The presiding Magistrate clarified with Ms Saldanha the nature and the content of the material that had been provided by Fujitsu that would be before the court during the course of the substantive hearing of the application. Her Honour asked Ms Saldanha about Ms Saldanha's reference to splitting the claim. In explanation Ms Saldanha said (T 6):
"The reason why I filed the claims separately is again because of the timing difference. I'm not sure you know once I file everything together they'll tell me 'some was under this legislation and some was under that legislation' so because of the timing on which they occurred, I split the claim so we don't have to go into that argument again."
However, in submissions to Magistrate Boon on 26 October 2009, Ms Saldanha said that she only intended to bring one claim.
The presiding Magistrate rejected Ms Saldanha's submission that only one claim was intended because the dates pleaded in the claim (2001 to 2003) were only part of the period of employment from 2001 to 2007/2008 and because Ms Saldanha had not led any evidence to contradict her earlier assertion and submission made on 14 September 2009 that she intended to file more than one claim.
In giving reasons for her decision, her Honour said at T 26:
"The claim as it stands is – the primary amount of it is for compensation for being forced to work 40 hours per week instead of the contracted 37.5 hours per week between April 01 and June 03 of $8,400. Those dates for that period is clearly out of time and is statute‑barred and that in itself would be enough to strike it out.
I do note that there is a considerable amount of correspondence which has been annexed to Ms Stanton's affidavit. Its correspondence between the parties in relation to the claim and this dispute has been a long-running dispute. I note it has been in the State Industrial Commission and that was dismissed because they didn't have jurisdiction. That was some time ago.
The correspondence indicates that the period of the claim was always between April 01 – actually a little bit before, April 1999 until either April 07 or March 2008. That's the other period. That was always part of the claim by the claimant. This claim form has been lodged seeking only compensation for a limited period up to June 2003. The correspondence annexed to Ms Stanton's affidavit shows that the defendant notified the claimant that she couldn't split claims that way or that she couldn't do it because the claim was for a bigger amount and she indicated a clear intention in that letter to split the claims.
There's nothing before me on oath from the claimant that shows what she's now saying that she only ever intended to limit herself to the minor case amount. There is just nothing that I can really rely on and my view is that if that had been the case, that should have been set out in the affidavit material or in the correspondence well before now and therefore I accept the submission on behalf of Ms Stanton that this was an attempt to circumvent the requirements that the claims be dealt with at the same time by using this as a vehicle and that does, in my view, amount to an abuse of process. The claimant has had a lot of notice from Ms Stanton's office of that."
Although self‑represented, Ms Saldanha was aware that evidence could be placed before the court by affidavit because she had filed affidavits in support of the applications that she brought in relation to the claim. The application to strike out the claim was adjourned for two weeks for legal advice at Ms Saldanha's request. The period of time before the substantive hearing of the application ended up being extended to a period of six weeks which gave Ms Saldanha sufficient opportunity to obtain legal advice and to file evidence to be considered by Magistrate Boon if she chose to do so. The presiding Magistrate gave the parties sufficient opportunity to place evidence before her in relation to the issue of the splitting of the claim before reaching her determination.
Although her Honour did not specifically deal with claim 1 and claim 2, her Honour referred to the primary amount of the claim being statute barred. No dates were pleaded in respect of claim 1 and claim 2 and it was therefore unclear whether or not this portion of the claim was statute barred. Given her Honour's ruling in relation to the majority of the claim, it was reasonable for her Honour to determine that claim 1 and claim 2 were inextricably linked to the primary amount and to strike out the whole of the claim.
Did the Magistrate wrongly find that the intention to split the claim was an abuse of process?
The presiding Magistrate determined that the whole of the claim constituted an abuse of process because Ms Saldanha intended to split the period of 2001 to 2008 and to file more than one claim with the intention that the claims would then comply with the restrictions of the minor case jurisdiction. The issue is whether it was open to her Honour to determine that Ms Saldanha's actions constituted an abuse of the Court's process.
What constitutes an abuse of the Court's process in the context of a minor case claim was recently considered by Sleight DCJ in Wise & Anor v Proprietors of Strata Plan 21513 [2009] WADC 115. At [par 62] his Honour referred to the decision of Master Newnes (as he then was) in Lee v St George Bank Ltd [2006] WASC 221 at [67] to [73] as follows:
"In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ said, in the context of the power to stay proceedings as an abuse of process, that the jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'. (See also Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334 at 344; Trade Practices Commission v Kimberley Homes Pty Ltd (1989) 217 ALR 110 at 114 and Batistatos v Roads & Traffic Authority of New South Wales (2006) 80 ALJR 1100 at [6] per Gleeson CJ, Gummow, Hayne and Crennan JJ, at [142] per Kirby J.)
In R v Carroll (2002) 213 CLR 635 at 657, Gaudron and Gummow JJ said that 'the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse'. Similarly, in Batistatos (supra), Gleeson CJ, Gummow, Hayne and Crennan JJ said (at [7]) that '[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories'.
In Rogers v The Queen (1994) 181 CLR 251, McHugh J observed (at 286):
'Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:
(1)the court's procedures are invoked for an illegitimate purpose;
(2)the use of the court's procedures is unjustifiably oppressive to one of the parties; or
(3)the use of the court's procedures would bring the administration of justice into disrepute'.
In the same case, Mason CJ said (at 255):
'The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process'.
What is clear, however, is that the concept extends generally to proceedings that are such as to 'bring the administration of justice into disrepute' (Rogers, ibid): see, generally, Batistatos (supra) at [14] ‑ [15]. It is not possible to define the circumstances which will constitute bringing the administration of justice into disrepute. That concept was described in IGA Distribution Pty Limited v Gow [2006] HCA 41 by Callinan and Heydon JJ (at [266]) as 'indeterminate'. And French J observed in Spalla v St George Motor Finance Ltd (No 6) [2004]."
Sleight DCJ then referred to the decision of Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 [at 69] where French J (as he then was) said:
"The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts - Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas (1994) 48 FCR 535 (at 545 Carr J)."
The law as referred to by Sleight DCJ is relevant to the matters that I must consider and I adopt his Honour's summary.
Part IV of the Act sets out minor case procedure:
"Section 26 Interpretation
…
26.1Minor case means:
(a)A claim within the jurisdiction of the court where:
(i)the value of the claim or of the relief claimed is not more than the minor case with jurisdictional limit; and
(ii)the claimant has elected to have the claim dealt with under the minor cases procedure."
Her Honour Magistrate Boon found that Ms Saldanha intended to rely on a claim where the value of the claim and the relief sought exceeded the minor cases jurisdictional limit. It was open to her Honour to find that if more than one claim proceeded then judicial resources would be wasted, witnesses would be required to give their evidence on multiple occasions and the parties would be uncertain about the precise case that they were to meet on each occasion. It was also open to her Honour to determine that Ms Saldanha's intention was contrary to the legislative intent of the minor case procedure. Given her Honour's findings of fact, it was open to her Honour to strike out the claim pursuant to s 17(1)(d) of the Act.
Additional grounds of appeal
Ms Saldanha seeks to rely on the following paragraphs.
Paragraphs 2 and 3
Ms Saldanha objects to the case not being conducted in accordance with Part 4 Minor Case Procedure in that no pre‑trial (mediation) conference was allowed.
A pre‑trial conference dated 17 September 2009 was set in response to Fujitsu's filing a notice of intention to defend – minor case and pre‑trial conference listing on 17 August 2009.
On 14 September 2009 Fujitsu's application to strike out the claim and to have legal representation for the application came before Magistrate Boon. Her Honour asked Ms Saldanha if she wanted the application adjourned so that Ms Saldanha could receive legal advice. Her Honour said (T 9):
"I'm not going to give any ruling now in the face of your request for an adjournment to get further legal advice. I'm not going to say it's statute‑barred or it's an abuse of process."
Ms Saldanha asked for a two-week adjournment for legal advice. Magistrate Boon advised Ms Saldanha that the hearing of the application was not the hearing of the claim (T 2 to T 9) and advised her that Fujitsu's application would be dealt with first. Given that the next listed date for the application was 9 October 2009, the listing meant that the pre‑trial conference date had to be vacated consistent with Magistrate Boon's direction that the application had to be dealt with prior to the claim being considered. Ms Saldanha agreed to the orders made on 14 September 2009 (T 9). Given that the claim was ultimately struck out, there was no procedural unfairness in relation to the fact that a mediation conference did not proceed.
Paragraphs 4 to 7
Ms Saldanha's raises that she served the claim incorrectly following advice from the Registry office by serving the claim on Fujitsu by post. Ms Saldanha refers to advice she received from the Registry office that she could effect service by post and that proof of service only had to be lodged with an application for default judgment. The improper service and the failure to lodge proof of service is contrary to r 7 and r 60 of the Magistrates Court (Minor Cases Procedure) Rules 2005.
Despite Ms Saldanha's failure to serve Fujitsu according to the rules and to file proof of service, her minor case claim was accepted by Registry. At no time did the presiding Magistrate indicate that the claim could not be dealt with because of Ms Saldanha's failure to serve the claim correctly. Ms Saldanha has not been deprived of natural justice in relation to these grounds.
Paragraph 8
Ms Saldanha objects to the fact that there was a hearing date listed on 14 September 2009 when she was only personally served with Fujitsu's application on 5 September 2009. Although Ms Saldanha advised the court that the listed hearing date was not convenient, she nevertheless attended court and was present before the Magistrate. Ms Saldanha did not have time to obtain legal advice before 14 September 2009.
On 14 September 2009 her Honour Magistrate Boon asked Ms Saldanha if she wanted an adjournment in order to obtain legal advice. Ms Saldanha accepted the invitation. The matter was next listed on 9 October 2009, however the application did not proceed on that date. The substantive hearing of Fujitsu's application occurred on 26 October 2009. Ms Saldanha therefore had approximately six weeks to obtain legal advice from the date of service of the application. There was no denial of natural justice because the presiding Magistrate adjourned the matter to ensure that Ms Saldanha could obtain legal advice.
Paragraph 9
Ms Saldanha states that Registry did not allow her to file her application to strike out the defendant's application on the grounds that Fujitsu had failed to respond with their notice of defence within the deadline of 14 days. Registry advised (consistent with Ms Saldanha's submissions), that they had not received an affidavit of service in relation to the dates of service and therefore they would not receive the application. The application was later filed by Ms Saldanha on 12 October 2009. Ms Saldanha concedes that she failed to serve Fujitsu in accordance with s 60 Magistrates Court (Minor Cases Procedure) Rules 2005 and that she also failed to file notification of proof of service. Ms Saldanha had mailed the claim to Fujitsu's parent company in New South Wales. The claim did not reach Fujitsu's solicitors in Perth for several weeks. Ms Saldanha claimed that she was advised by Registry staff to serve the document in this way. There was no denial of natural justice.
Paragraphs 10 and 11
Ms Saldanha objects to Fujitsu's application for leave to be represented by a lawyer at the hearing of its application. Ms Saldanha objects to the Magistrate's failure to provide her with legal advice by way of assistance to amend her claim.
On 14 September 2009 her Honour Magistrate Boon determined that Fujitsu's application involved complex legal issues. Her Honour only allowed legal representation on Fujitsu's application and did not make any orders in relation to representation on the claim in the event that the claim proceeded. Her Honour adjourned the hearing of Fujitsu's application so that Ms Saldanha could obtain legal advice. Her Honour did not suggest that the court would provide legal advice to Ms Saldanha. Ms Saldanha advised that she would obtain legal advice in the period of the adjournment. There has been no denial of natural justice.
Paragraphs 11 to 14
These paragraphs relate to Ms Saldanha's dealings with Registry and her intention and choice to file applications. There is no reference to the conduct of the presiding Magistrate.
Paragraph 15
Ms Saldanha opposed the adjournment of the hearing on 9 October 2009 when it was submitted on behalf of Fujitsu that the matter was part heard before Magistrate Boon from 14 September 2009. The matter did not proceed before her Honour Magistrate Lane on 9 October 2009. A further date for hearing was set on 26 October 2009 for the matter to be argued before Magistrate Boon. Ms Saldanha was not denied natural justice.
Paragraphs 16 and 17
These paragraphs refer to the actions of the court Registry only.
Paragraph 18
Ms Saldanha states:
"At the hearing of 26 October, I asked the learned Magistrate to consider my application at the same time given that it was related to the defendant's application. However she chose not to do so (I don't recall a reason being given) and only heard the defendant's application to strike out my claim and my application to amend my claim."
On 26 October 2009 her Honour Magistrate Boon struck out Ms Saldanha's claim. In giving her reasons her Honour did not specifically refer to Ms Saldanha's claim in relation to the application to strike out Fujitsu's claim.
Her Honour Magistrate Boon had advised Ms Saldanha on 14 September 2009 that Fujitsu's application had to be dealt with before the claim could be considered. On 9 October 2009 her Honour Magistrate Lane spoke directly to Ms Saldanha in relation to her foreshadowed application to amend the claim and Ms Saldanha's request that it be heard before the application to strike out (T 4):
"HER HONOUR: Now, the documents in relation to your application have also been handed to the defendant so they're aware of it. It doesn't form part of the application. It just depends what happens at the end of the application to strike‑out.
SALDANHA, MS: I see; so I can't ask for this to be heard before that?
HER HONOUR: Absolutely not.
SALDANHA, MS: Okay.
HER HONOUR: Absolutely not, the reason for that being is if the strike-out application is successful, then that falls away because the claim is struck out. If it's unsuccessful, then that application can be listed."
Ms Saldanha was aware that if her claim was struck out then any subsequent applications would not be dealt with because her claim would no longer be in existence. There was no denial of natural justice.
Section 2 – costs (pars 25 to 28)
Ms Saldanha appeals against the Magistrate's decision to order that she pay Fujitsu's costs.
On 26 October 2009 after her Honour Magistrate Boon determined that the claim was an abuse of process her Honour then heard submissions in relation to costs. Counsel for Fujitsu submitted (consistent with the material annexed to Fujitsu's affidavit) that Ms Saldanha had been put on notice that an application would be made for costs since March (2009) and that Fujitsu was seeking costs in light of the claim being found to be an abuse of process.. Her Honour spoke directly to Ms Saldanha and set out s 31 of the Act in full for Ms Saldanha. Ms Saldanha opposed the making of a costs order. Her Honour then said at T 29:
"HER HONOUR: I have struck it out. I have told you I have struck it out and that I wasn't satisfied with your submissions and I accepted the submissions that it was an abuse of process and that it was statute‑barred and so it is without merit and it is exceptional given the extraordinary length that Ms Stanton went to in her correspondence which is annexed to warn you of this."
Ms Saldanha then further opposed the making of the costs order. Her Honour then stated:
"HER HONOUR: I'm still satisfied that the claim for costs – the application for costs has been made out and I will order the claimant pursuant to s 33(3)(a) and (b) of the Magistrates Court (Civil Proceedings) Act to pay the defendant's costs of the application and such costs to be assessed if not agreed. Thank you."
There is a strong presumption in favour of the correctness of a discretionary decision and that decision should therefore be affirmed unless the appellate court is satisfied that it is clearly wrong (see Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621, Kitto J at 627; House v R (1936) 55 CLR 499, Dixon, Evert and McTiernan JJ at 504 ‑ 505; Gronow v Gronow (1979) 144 CLR 513, Stephen J at 519).
The awarding of costs is a discretionary matter for the court. Her Honour set out that she was satisfied that the requirements of s 31(3)(a) and s 31(3)(b) of the Act had been met and that costs should be awarded and gave reasons for her decision. There was no denial of natural justice.
Section 3 to s 6 (pars 29 – 44)
These paragraphs deal with the merits of the claim and Ms Saldanha's comments in relation to the matter generally. The paragraphs do not provide grounds that support Ms Saldanha's appeal.
For the above reasons I conclude that there has not been a denial of natural justice and the appeal should be dismissed.
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