JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SETHI -v- BHAVSAR [2020] WASCA 52
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 8 APRIL 2020
DELIVERED : 8 APRIL 2020
PUBLISHED : 8 APRIL 2020
FILE NO/S: CACV 154 of 2019
BETWEEN: CHAND SETHI
First Appellant
KALPANA MANSUR
Second Appellant
AND
PRANAV BHAVSAR
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : APP 77 of 2019
Catchwords:
Appeal in relation to decision of a magistrate - Issue of registrar's notice to attend to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether appellants' case had reasonable prospects of success - Exercise of discretion refusing application to adjourn a trial - Appellate restraint concerning interlocutory matters and matters of practice and procedure - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 19(2)(b)
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 70
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)
Category: B
Representation:
Counsel:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Respondent | : | V Yogendran |
Solicitors:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Respondent | : | Morris, Alexander & Nelson Barristers & Solicitors |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Baron v Walsh [2014] WASCA 124
Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390
Coal and Allied Operations Pty Ltd v Australia Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mavaddat v Westpac Banking Corporation [2014] WASCA 128
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
MTI v SUL [No 3] [2012] WASCA 145
Parfenova v Power Legends Pty Ltd [2019] WASCA 168
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204
REASONS OF THE COURT:
This matter came before us on the issue of a registrar's notice to attend to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
After hearing from the appellants we made orders dismissing the appeal. We said that we would provide written reasons for those orders. These are our reasons for dismissing the appeal.
Procedural background to the appeal
The appellants lodged an appeal notice in this court on 17 December 2019. The appeal was against a decision of Stevenson DCJ (primary judge) in the District Court on 27 November 2019 in proceedings APP/77/2019. Having given leave to file the appeal (out…
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- AGLC
- Sethi v Bhavsar [2020] WASCA 52
- Case
- [2020] WASCA 52
- Decision Date
CaseChat Overview and Summary
The Court of Appeal examined the history of the matter in the Magistrates Court, considering the circumstances of the application for adjournment and the magistrate's decision. The court recognised that the magistrate was entitled to conclude that there was no explanation for the appellants' non-attendance, and that it was reasonable for the magistrate to infer that the appellants appreciated the consequences of an unsuccessful application. The primary judge found that the magistrate was entitled to assume the appellants were properly advised of the risks they were taking by not attending the trial. Additionally, the court considered the statutory provisions and relevant authorities concerning procedural fairness and the granting of adjournments.
After reviewing these factors, the Court of Appeal concluded that the magistrate was justified in refusing the adjournment application, given the history of the matter and the unexplained absence of both appellants. The court held that it was open to the magistrate to refuse the appellants' application to adjourn the trial, and dismissed ground (i) of the appeal. The appellants' contention that the magistrate failed to act judicially in denying them procedural fairness was therefore rejected.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Ground (i), although cast in terms of procedural fairness, challenged the magistrate's decision to refuse the adjournment alleging an error of law. The refusal to accede to a 'reasonable request' for an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case.[31] Ground (i) was argued conformably with there being a lack of procedural fairness in that sense.[32] Counsel for the appellants suggested unreasonableness - particularly unreasonableness in refusing the request to stand the matter down so that the appellants' solicitor could contact her clients to inform them that the trial was to proceed.[33] In written submissions counsel for the appellants argued that the magistrate could have, but did not, make enquiries as to matters such as whether the first appellant could have attended alone, the state of the second appellant's health and whether the appellants could have attended by videolink.[34][31] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [40][32] See eg appellants' submissions dated 25 November 2019, pars 45, 52 - 57.[33] See eg ts 57 - 58.[34] Appellants' submissions dated 25 November 2019, pars 42, 44. The primary judge had regard to the history of the matter in the Magistrates Court.[35] His Honour recounted the position that confronted the magistrate at the commencement of the trial and the circumstances of the application for adjournment.[36] His Honour accepted that the magistrate was entitled to conclude - as the magistrate did - that there was no explanation for the appellants' non‑attendance.[37] His Honour inferred that the appellants appreciated the likely consequences if the application was unsuccessful;[38] and concluded that the magistrate was entitled to assume that the appellants were properly advised as to the risk they were taking,[39] but took the decision not to attend to increase the pressure on the court to grant the application.[40] This was later expressed in terms of taking a 'calculated risk' in circumstances where it could fairly be inferred that the appellants were advised as to the merits of the application and the consequences if the application was unsuccessful.[41] His Honour also considered relevant statutory provisions within the Magistrates Court (Civil Proceedings) Act and authorities as to procedural fairness and adjournment.[42][35] ts 75 - 77.[36] ts 74.[37] ts 74.[38] ts 75.[39] ts 77 - 78, 79.[40] ts 78 - 79.[41] ts 81 - 82.[42] ts 79 - 81. The primary judge concluded that:[G]iven the history of the matter as it existed before the magistrate, the basis of the application that was made to him and the unexplained absence of both appellants, in particular [the first appellant], then it was, with respect, absolutely open to the magistrate to refuse the appellants' application to adjourn the trial.[43][43] ts 81. For those reasons the primary judge dismissed ground (i) and the appellants' contention that the magistrate erred in law by failing to act judicially in according them procedural fairness.[44][44] ts 81.