Scott v Perring
[2018] WADC 32
•12 MARCH 2018
SCOTT -v- PERRING [2018] WADC 32
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2018] WADC 32 | |
| Case No: | APP:76/2017 | 22 JANUARY 2018 | |
| Coram: | GLANCY DCJ | 12/03/18 | |
| PERTH | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | DAVID ALEXANDER SCOTT FIONA LOUISE PERRING |
Catchwords: | Appeal from Magistrates Court Refusal by magistrate to set aside default judgment Minor case Appeal on grounds of denial of natural justice |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA) s 6, s 32, s 40 Rules of the Supreme Court 1971 (WA) O 13 r 10 |
Case References: | Garrett v Nicholson (1999) 21 WAR 226 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 Hall v Hall [2007] WASC 198 Ibrahim v The Honourable Justice Martin [2012] WASC 338 J v Lieschke (1987) 162 CLR 447 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 Re Burton; Ex parte Lowe [2003] WASCA 306 Smart v Prisoner Review Board (WA) [2012] WASC 48 Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73 Starrs v Retravision (WA) Ltd [2012] WASCA 67 Sullivan v Department of Transport (1978) 20 ALR 323 The Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133 Tran v Claydon [2003] WASCA 318 Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
FIONA LOUISE PERRING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE TAVENER
File No : MI MINOR 1011 of 2017
Catchwords:
Appeal from Magistrates Court - Refusal by magistrate to set aside default judgment - Minor case - Appeal on grounds of denial of natural justice
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 6, s 32, s 40
Rules of the Supreme Court 1971 (WA) O 13 r 10
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr M J Spiegl
Respondent : In person
Solicitors:
Appellant : Victoria Park Legal
Respondent : Not applicable
Case(s) referred to in judgment(s):
Garrett v Nicholson (1999) 21 WAR 226
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Hall v Hall [2007] WASC 198
Ibrahim v The Honourable Justice Martin [2012] WASC 338
J v Lieschke (1987) 162 CLR 447
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Burton; Ex parte Lowe [2003] WASCA 306
Smart v Prisoner Review Board (WA) [2012] WASC 48
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73
Starrs v Retravision (WA) Ltd [2012] WASCA 67
Sullivan v Department of Transport (1978) 20 ALR 323
The Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133
Tran v Claydon [2003] WASCA 318
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382
- GLANCY DCJ:
Background
1 The appellant and the respondent lived together as husband and wife until the appellant left the marital home on 5 January 2017. The appellant and the respondent had two dogs, Max and Zara, that resided with them at the family home at the time the marriage ended. After their separation, and while the respondent was away from the former matrimonial home where she still lived, the appellant came to the home and took from it the two dogs.
2 The proceedings here involve the ownership of those two dogs.
3 Separate divorce proceedings are presently on foot in the Family Court of Western Australia. It is possible the dogs will be dealt with in property orders to be made in those proceedings.
4 The respondent commenced an action in the Magistrates Court, Midland seeking orders for the return of the dogs alleging that they were her property and had been unlawfully detained by the appellant. On 2 June 2017 the respondent obtained default judgment in those proceedings because the appellant did not file his particulars of defence within the time required. The orders compelling the return of the dogs were made in the exercise of the jurisdiction conferred by s 6(1)(d) of the Magistrates Court (Civil Proceedings) Act 2004 (MC(CP) Act).
5 The appellant subsequently applied to the Magistrates Court for an order setting aside the default judgment. That application was refused on 9 August 2017.
6 The appellant now appeals to this court against the order of the magistrate dismissing the application to set aside the default judgment.
Issues of dealing with self-represented litigants
7 The respondent appeared in person. The appellant was legally represented at the hearing, as he also was before the magistrate at the hearing of his application to set aside the default judgment.
8 In dealing with the appeal I am cognisant of the fact that the respondent is a litigant in person. As a litigant in person she should be afforded some latitude. I have therefore approached the documents in which she articulates her case with some flexibility: Smart v Prisoner Review Board (WA)[2012] WASC 48 [10] (Pritchard J). I need to be careful to ensure that if she has a case, it is not denied because of a poorly expressed document or submission: Ibrahim v The Honourable Justice Martin [2012] WASC 338 [21] (Beech J). At the same time, I need to ensure that any latitude given does not work an injustice to the legally represented appellant: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
Jurisdiction on appeal
9 The matter proceeded in the Magistrates Court as a minor case. Accordingly, the appeal to this court is governed by s 40 and s 32 of the MC(CP) Act.
Grounds for appeals in relation to judgments in minor cases
10 Section 32(1) of the MC(CP) Act provides that except as provided by s 32 itself, no appeal lies against an order made by the court in the course of proceedings in a minor case or from the judgment of the court in a minor matter.
11 Relevantly s 32(2) of the MC(CP)Act allows an appeal from the judgment of a magistrate.
12 The appellant's only ground of appeal is that the magistrate denied him natural justice in dealing with the minor case. Appeals from judgments in minor matters are permitted to be brought on that ground: s 32(2)(b) MC(CP) Act.
Procedure on appeal
13 In other respects the appeal is governed by pt 7 of the MC(CP) Act which deals with appeals generally.
14 An appeal cannot be commenced more than 21 days after the judgment date, unless the District Court gives leave: s 40(3) MC(CP) Act. In this case the appeal was commenced within the time specified and leave is not required.
15 Section 40(4) of the MC(CP) Act states that 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.
16 Section 40(5) provides that leave to adduce further evidence may only be given in exceptional circumstances.
Applications to adduce further evidence
17 In this case both parties applied for leave to adduce further evidence. At the hearing of the appeal the respondent indicated that she only wished to press her application for leave to adduce further evidence in the event that the appellant's application were successful.
18 Section 40(5) provides that leave to adduce further evidence may only be given in exceptional circumstances.
19 The meaning of the expression 'exceptional circumstances' has been addressed recently by two decisions of this court. In Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73 [5] – [9] her Honour Judge Wager considered the meaning of that expression in some detail and adopted the conclusion which her Honour Judge Davis expressed in The Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133 in the following terms [40]:
Having regard to the ordinary meaning of the word 'exceptional' all of the authorities and the principles of statutory construction, I consider that for circumstances to be 'exceptional' … they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique or unprecedented or very rare however they will not be exceptional 'if they are regularly, or routinely' or normally encountered.
20 This is the meaning which I applied to that expression considering the applications to adduce further evidence.
21 Exceptional circumstances may be a single exceptional matter or may be a combination of ordinary factors which, when taken together in combination, may reasonably be regarded to be amounting to exceptional circumstances: Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 379 (Brennan & Dawson JJ).
Appellant's application to adduce further evidence
22 The evidence which the appellant sought to introduce was:
1. a letter from the Dean of Administration at Lake Joondalup Baptist College, the school at which the appellant worked, which stated that on 30 and 31 May 2017 the appellant's duty of care to students at the school meant that he was unable to leave the school before his usual finishing time of 4.30 pm; and
2. two certificates of registration relating to Zara, which the appellant had in his possession at the time of the hearing on 9 August 2017; and
3. information from the Royal Agricultural Society of New South Wales, Australasian Animal Registry concerning Zara and Max which the appellant stated showed that the microchips for Zara and Max were originally registered in his name.
23 It was said that if introduced, the evidence referred to at 1 above would support the appellant's argument that he could not leave his place of employment to file his particulars of defence on 30 and 31 May 2017. The evidence referred to in 2 and 3 above would, it was said, further demonstrate that the appellant had an arguable defence to the respondent's original application in the Magistrates Court.
24 The affidavit dated 20 November 2017 sworn by the appellant and filed in support of the appellant's application to adduce further evidence does not identify any compelling reason for the need to adduce evidence as to his obligation to his students and employer on 30 and 31 May 2017. There is nothing to indicate that the letter could not have been obtained for use in the hearing before the magistrate on 9 August 2017. Further, it adds little to the submission made by the appellant before the magistrate that he was unable to leave his place of employment on those days. For those reasons I did not grant the appellant leave to adduce that evidence in the appeal.
25 As to the application to adduce further evidence as to the registration of the dogs in support of the argument that the appellant had an arguable defence to the original application, there was nothing in the affidavit filed in support of the application to suggest that there were exceptional circumstances that would justify the admission of either the material in 2 or 3 above in the appeal. The appellant's counsel merely asserted from the bar table that that material in 3 above was not able to be obtained for production at the 9 August 2017 hearing. Accordingly, I refused the appellant's application to adduce the evidence as to the contested ownership of the dogs. Given the view I have taken as to the magistrate's decision, it would not have been necessary to consider this material in any event.
Respondent's application to adduce further evidence
26 By application filed in this appeal dated 4 December 2017 the respondent sought leave to introduce six new pieces of evidence, all of which go to the question of the name in which the two dogs are registered and ultimately she submits, to the question of whose property the dogs are.
27 The respondent filed an affidavit in support of her application to adduce further evidence. That affidavit is dated 4 December 2017. In many respects it contains submissions in opposition to the appellant's application to adduce further evidence and does not set out any facts demonstrating why exceptional circumstances exist for the introduction of her own additional evidence.
28 At the hearing of the appeal I refused leave to adduce the further evidence as I was not satisfied that there existed any exceptional circumstances that would have justified it being called. It was perhaps unnecessary to do so for the following two reasons. First, in light of the decision I made in respect of the appellant's application, the application was not pressed by the respondent. Second, in light of what I consider to be the approach of the magistrate in relation to the question of the existence or otherwise of an arguable defence, it was not necessary to consider the question of the ownership of the dogs further in these proceedings.
Denial of natural justice – general principles
29 The appellant contends that he was denied natural justice at the hearing of his application to set aside the default judgment. The principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement in a particular case cannot be determined in the abstract but only in the context of the case. Thus, as Brennan J pointed out in J v Lieschke (1987) 162 CLR 447, while the principles of natural justice apply to courts:
That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings (456).
30 The magistrate was also required to bear in mind that he was dealing with a minor case. In Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148, Newnes JA (Pullin JA agreeing) observed the following in relation to an appeal brought from a minor case in the Magistrates Court [54]:
I have mentioned that the case was brought under the minor cases procedure of the Magistrates Court. It is necessary to say something about that procedure. It is evident that the minor cases procedure is intended to provide a speedy, informal and inexpensive process for the resolution of claims not exceeding $10,000. To that end, the Act provides that the court is to act with as little formality as it thinks reasonable and is not bound by the rules of evidence but may inform itself as it thinks fit: s 29(3), (4). Unless the court otherwise directs, all proceedings are to be held in private (s 29(1)) and the parties are not entitled to legal representation (s 30). Ordinarily, the only costs allowable to a successful party are court and service fees, and the costs of enforcing a judgment: s 31.
31 The requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court.
32 There are two aspects of natural justice. First, that a decision-maker gives an opportunity to be heard to a person whose interests will be affected adversely by the decision (referred to as the 'hearing rule') and, second, that the decision-maker be a person who is disinterested or unbiased in the matter to be decided (referred to as the 'bias rule'). See Re Burton; Ex parte Lowe [2003] WASCA 306 (judgment of the court).
33 There is arguably a third aspect of natural justice. It is said in some authorities to be a duty to give reasons.
34 Ordinarily, it is the duty of a judge to state his or her reasons for decision and failure to do so may constitute an error of law: Garrett v Nicholson(1999) 21 WAR 226, 248 (Owen J); Tran v Claydon[2003] WASCA 318 [35] - [38] (McLure J).
35 As the Court of Appeal said in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] - [29] (Steytler, Templeman & Simonds JJ):
The starting-point … is that the giving of reasons is a normal (albeit not universal) incident of the judicial process. That is because 'the duty is a function of due process, and therefore of justice'. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment. The requirement also furthers judicial accountability.
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
Reasons need not be lengthy and elaborate; nor do they need to refer to all the evidence led in the proceedings. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial judge should set out findings sufficient to explain why. Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side', the judge 'must enter into the issues canvassed before him and explain why he or she prefers one case over the other'.
Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter. (citations omitted)
Setting aside default judgment – general principles
36 The jurisdiction to set aside a default judgment is found in Rules of the Supreme Court 1971 (RSC) O 13 r 10, which provides that the 'Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order'.
37 The discretion in this rule is not qualified. It is to be exercised 'so as to do justice between the parties, having regard to the circumstances of the case': Starrs v Retravision (WA) Ltd [2012] WASCA 67 [36] (Allanson J, with whom Pullin JA & Murphy JA agreed); Hall v Hall [2007] WASC 198 [63] (Newnes J); Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 [9] (Gething AM).
38 Different considerations apply depending on whether the default judgment was irregularly or regularly entered. In this case it is not in dispute that the judgment was regularly entered.
39 In considering an application to set aside a default judgment the court was required to have regard to the defendant's prospects of success in relation to the action, whether there was a reasonable explanation given for the delay and the need to do justice to the parties having regard to the circumstances of the case.
Magistrate's hearing and decision
40 The hearing before the magistrate on 9 August 2017 was short. The transcript is only 9 pages. The appellant appeared by counsel. The respondent appeared in person. The reasons are encapsulated on page 7 of the transcript in the following passage:
I think it comes down to this – the explanation provided by Mr Scott as to why he didn't file, I'm not satisfied with. Therefore, leave to set aside is refused.
41 While the magistrate's decision does not address his views of the appellant's prospects of success in the substantive action, his failure to address that matter directly in his reasons can be explained on the basis that he took the view that, even if he accepted for the purposes of the proceedings that there was a genuine and unresolved dispute between the parties about the ownership of the dogs and accordingly whether they were property of the respondent which had been unlawfully detained, he was not satisfied as to the adequacy of the appellant's reasons for failure to comply with the requirement to file particulars of his defence.
Appellant's particulars of denial of natural justice
42 The appellant's written submissions were that the magistrate had denied him natural justice by:
1. failing to read the appellant's affidavit at all, or alternatively, prior to the hearing. The contention was that reading it for the first time during the hearing resulted in a lack of appreciation of the defendant's case;
2. taking into account an irrelevant consideration, namely a desire to reduce further aggravation between the parties;
3. failing to consider the reasons for the appellant's failure to file his particulars of defence within the time permitted;
4. failing to consider that the appellant had not been notified by the respondent of her intention to require strict compliance with the time limits; and
5. failing to consider the existence of an arguable defence.
Was there a denial of natural justice?
43 The appellant submitted that the magistrate did not accord him natural justice because he did not read the appellant's affidavit. It is clear from the transcript of the proceedings in the Magistrates Court on August 2017 at page 6 that he did read that affidavit. The transcript records the magistrate saying:
That's all right. I am just reading the affidavit of David Alexander Scott signed – received by this this court on 20 June and dated the day before. Now Mr Scott indicated that he was aware of the need to file the defence. And I appreciate, Mr Spiegl, he was - you were accepting service on his behalf. Paragraph 5 is he has notice of that from 18 May. He then says (indistinct) 31 May after 5pm – I don't know why he expected to be able to file after office hours, even by email.
Then on 1 June he was told that it's not properly lodged. So he has had a period of time to lodge his defence. His only explanation is contained in paragraph 6, and that is finding time to deal with the matter, being a teacher librarian. So that would mean that he has the usual hours of work, which I'm familiar with, of teachers. That's his only explanation why he didn't file in time. I find that at one paragraph, paragraph 6.
44 At the hearing of the appeal counsel for the appellant resiled from the contention that the affidavit was not read at all, instead advancing the submission that the failure to accord natural justice came instead from a failure to read it before the hearing. It was submitted that the failure to read it before the hearing 'might' have meant that the magistrate 'might not have turned his mind to all of the matters raised in the affidavit'. I reject that submission. First, the passage in the transcript does not indicate one way or the other whether the magistrate was reading the affidavit for the first time (see transcript of Magistrates Court hearing of 9 August 2017 at page 6). Second, even if he had been, it could equally be argued that doing so ensured that it was fresh in his mind. Third, the appellant was represented by counsel at the hearing and counsel had the opportunity to ensure that the magistrate's attention was drawn to all relevant matters. It is not for the court to ensure that the appellant took the best advantage of the opportunity: see Sullivan v Department of Transport(1978) 20 ALR 323, 343 (Deane J).
45 I also reject the contention that the appellant was not accorded natural justice because the magistrate did not consider the evidence that the appellant did not know that the respondent would strictly enforce the time limits against him. It is clear from the transcript that the magistrate accepted the appellant's own evidence that he knew he had to comply with the obligation to file the defence (see transcript of Magistrates Court hearing 9 August 2017 at page 6).
46 In the context of the very short reasons given by the magistrate for refusing the appellant's application to set aside summary judgment, it is clear that the magistrate thought the only possibly reasonable justification for the delay was the appellant's inability to attend to his court action during his working hours on 30 and 31 May 2017. I apprehend from the magistrate's assertion that the only explanation was the inability to find time to deal with the matter because of the appellant's work commitments, that the magistrate wholly rejected as a possible ground for setting aside the default judgment, the appellant's assertion that he did not know the time frame would be strictly enforced by the respondent.
47 Finally, I do not accept that the magistrate failed to accord the appellant natural justice because, in making his decision, the magistrate had regard to an irrelevant consideration (being his desire to limit unnecessary aggravation between the parties). An examination of the transcript reveals that the issue arose in the following exchange (see transcript of Magistrates Court hearing of 9 August 2017 pages 5 - 6):
His Honour: One of my concerns, which may not be directly (indistinct) in these type of cases but something I'm aware of is clearly the dispute between these parties ranges over a whole range of issues.
Spiegl, Mr: Yes, it does.
His Honour: It's not confined to the dogs. So I prefer to try to avoid unnecessary aggravation, if I can. And clearly the dogs have become a point of issue between them.
Spiegl, Mr: But the dogs have been with my client since January.
His Honour: And that's – I've read your affidavit how that came about. And there's no way that that can be solved by negotiation, obviously.
48 In the context of the magistrate's subsequent statement that he dismissed the application on the basis of his dissatisfaction with the explanation for the delay, it is clear that the magistrate's decision was not motivated by a desire to avoid further aggravation between the parties and the exchange quoted above should be understood only as the magistrate seeking confirmation of his assumption that the matter would not be resolved between the parties. Further, when pressed in relation to this particular, and its relationship to the reasons given by the magistrate for dismissing the application to set aside the default judgment, counsel for the appellant accepted that the comment seemed to have been made in passing (see page 23 of the transcript of 22 January 2018).
Conclusion
49 It follows from what I have found above that I do not accept that the appellant was denied natural justice on the hearing of his application to set aside the default judgment.
Orders
50 In the circumstances I will make an order that the appellant's appeal be dismissed.
51 I will hear from the parties as to costs.
0
18
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