Sethi v Bhavsar - [2020] WASCA 52

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 of time),[1] the primary judge ordered that:
1.The appeal be dismissed.
2.The appellant pay the costs of the respondents in any event to be taxed unless otherwise agreed.
[1] ts 71.
The appellants' amended appeal notice dated 19 November 2019 before Stevenson DCJ specified that the decision appealed against was that of Magistrate Malley as made on 21 August 2019. The magistrate entered judgment against the appellants in favour of the respondent in an amount of $20,000 together with costs. Judgment was entered in default of appearance by the appellants after refusal of an application to adjourn the trial as listed before the magistrate. It was the magistrate's refusal of the adjournment application that was the subject of the appeal before Stevenson DCJ (see [11] below).
Three grounds of appeal were relied on by the appellants in the District Court. They were that the magistrate erred in law:
i)by failing to act judicially with regard to procedural fairness and so giving rise to an error of law;
ii)by acting arbitrarily and unreasonably in determining that the medical conditions that the appellants' suffered were not such that it would prevent them attending to prosecute their defence. Such action being an error of law; and
iii)by forming the view that the medical certificates were not 'adequate'. Such decision being one that was outside of the knowledge of the learned Magistrate and as such was an error of law.
The action in the Magistrates Court had a long history. It is not necessary to set that out in full. The essential summary is as follows. The respondent issued proceedings against the appellants, who are husband and wife, out of the Magistrates Court at Armadale on 23 May 2017. The respondent claimed that he was entitled to be refunded $20,000 said to have been paid by instalments as the deposit to purchase a taxi licence plate (taxi number plate 380) from the appellants. Although a default judgment was entered it was later set aside. Eventually, after numerous court appearances, the matter was listed for a two‑day trial to commence on 21 August 2019.
Based on the transcript of the hearing before the primary judge it was common ground that the two days listed for the trial were allocated on 23 January 2019 (ie some seven months earlier).[2]
[2] ts 21.
On 21 August 2019, after the appellants obtained legal representation for that purpose, a solicitor appeared for the appellants and made an application to adjourn the trial. The application was based on a medical certificate dated 20 August 2019 issued in relation to the second appellant. The certificate read:
[The second appellant] is suffering from clinical features of Bacterial Pharyngitis. She has severe sore throat, cough, tiredness and hoarse voice. She is currently on antibiotics and cough medicine. I expect her to recover from the current illness in about 1 - 2 weeks time.[3]
[3] Affidavit of K Mansur sworn 18 November 2019, attachment 'AB-1'.
Magistrate Malley refused the adjournment application and the hearing proceeded. The appellants were not present and the solicitor was not in a position to present a defence on their behalf (having at the outset informed the magistrate that her firm had only been instructed to represent the appellants on the adjournment application). The solicitor sought and was granted leave to withdraw. In the absence of attendance in person by the appellants, judgment was entered against the appellants on a default basis - a course permitted by s 19(2)(b) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) when read with r 70 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA).
The orders made on 21 August 2019 record:
1.Application to adjourn refused.
2.In default of appearance by [the appellants], judgment for [the respondent] in the sum of $20,000.00 plus costs to be taxed or agreed, including 2 witnesses for a half day.
The appellants later sought, unsuccessfully, to set aside the default judgment. That application, heard and determined on 25 September 2019 by another magistrate (Magistrate Millington), was not the subject of an appeal. Rather, the appeal to the District Court involved - and was confined to - Magistrate Malley's decision of 21 August 2019 refusing the adjournment application. In this regard Stevenson DCJ specifically obtained the confirmation of counsel then appearing for the appellants that the appeal before his Honour only concerned the decision of the magistrate to exercise his discretion to refuse the application to adjourn the trial[4] (it being accepted, however, that if the dismissal of the adjournment application was overturned on appeal, the consequence would be that the default judgment would be set aside).[5] The primary judge considered and determined the appeal in the District Court on this basis.[6]
[4] ts 2 - 3, 9, 53 - 54, 59.
[5] ts 11.
[6] ts 70, 73.
The primary judge gave comprehensive oral reasons for dismissing the appeal.[7] Those reasons are discussed at [31] - [42] below.
[7] ts 70 - 82.
As mentioned, the appellants lodged an appeal notice with respect to the dismissal of their appeal in the District Court on 17 December 2019.
The appellants were required to file an appellant's case by 3 March 2020. On 3 March 2020 they made an application for an extension of time to file their appellant's case. The respondent opposed the application. However, Registrar Eaton allowed an extension to 25 March 2020. The appellants then purported to file materials styled as an 'appellant's case' on 23 March 2020. The Court of Appeal office wrote to the appellants on 24 March 2020 informing them the purported appellant's case had not been accepted for filing as it did not comply with the Supreme Court (Court of Appeal) Rules. A further document styled as an appellant's case was then lodged on 25 March 2020. This too was not accepted for filing for want of compliance with the Rules. Notification to that effect was provided on 27 March 2020.
The registrar's notice to attend was issued on 30 March 2020.
We have had regard to the documents filed by the appellants despite the fact that they have not been accepted for filing. In particular, we have considered the suggested grounds of appeal contained in the 25 March 2020 document (that being the latter of the two purported appellant's cases). Due to the number and extent of the suggested grounds of appeal those 'grounds' are reproduced at annexure 'A' to these reasons.
It will be necessary to return to the putative grounds. For now, however, it should be appreciated that they distinguish between the 'Primary court' - that being the Magistrate's Court at Armadale - and the District Court. A number of alleged errors are suggested as to the Primary court. On the face of the document none of the alleged errors are attributed to the primary judge. The alleged errors in the Magistrates Court concern both the hearing on 21 August 2019 (grounds 1 - 19) and the hearing on 25 September 2019 (grounds 20 ‑ 27). There are also asserted to be various errors of fact on the part of the Primary court (ie the Magistrates Court) not attributed to either hearing (grounds 28 - 33), most of which concern matters which have not been considered because they have not arisen for determination given the default judgment.
While the appellants' grounds of appeal are apparently directed to the Magistrates Court hearings, the written submissions in support of grounds 1 - 19 direct attention to the transcript of the hearing before the primary judge in the District Court.[8] The written submissions go on to suggest that there were various matters which the primary judge was unaware of (eg that the appellants were not given honest, correct, accurate advice by their lawyers) and other matters which his Honour should have looked into (eg that there was no agreement with the respondent and that the second appellant should not be involved in the case).[9]
[8] Appellants' written submissions dated 25 March 2020, pages 4 - 7.
[9] Appellants' written submissions dated 25 March 2020, page 16.

Approach to the hearing

This court does not, as a matter of course, dismiss an appeal simply due to non-compliance with the obligation to lodge an appellant's case within the time under the rules. Rather, the court ordinarily makes appropriate programming orders for the filing of the appellant's case, or alternatively, in a case where it is necessary and appropriate, makes a springing order with a view to obtaining compliance with the requirements of the rules.
On occasions, however, it is appropriate to employ the power under r 43(g)(ii) to dismiss an appeal. It might, for example, be futile to extend the time to file and serve an appellant's case because the appeal has no reasonable prospects of success - the materials being relied on by an appellant disclosing no reasonably arguable grounds of appeal and the defects in the materials not being capable of being remedied by amendment.[10]
[10] Parfenova v Power Legends Pty Ltd [2019] WASCA 168 [36] - [37].
The present case was one in which the appellants had already received an extension of time to file an appellant's case. There had been two attempts to do so. In all the circumstances the appellants had been provided with sufficient opportunity to identify the basis for their appeal and the alleged errors of the primary judge said to ground their appeal. Thus it was appropriate to approach the hearing of the registrar's notice to attend, requiring as it did that the appellants show cause why the appeal should not be dismissed, on the basis that it was necessary for the appellants to demonstrate that the appeal had reasonable prospects of success. The appellants were asked to make submissions accordingly and identify some reasonably arguable ground of appeal.
In considering whether the appeal had reasonable prospects of success we took into account the purported appellant's case dated 25 March 2020 (although not accepted for filing) and the appellants' oral submissions. We also considered the materials before the District Court and the reasons of the primary judge.
In oral submissions the appellants confirmed that the grounds in the purported appellant's case dated 25 March 2020 identified all the materials (ie the alleged errors) they relied on in their appeal. In their oral submissions (which were presented by the second appellant) the appellants sought to stress two matters:
1.The appellants considered that their legal representation in relation to the earlier hearings had been deficient. Among other things it was said that:
(a)the solicitor who had appeared before Magistrate Malley on their behalf was not the lawyer they had instructed and was not briefed on their case by them;
(b)they had received legal advice to the effect that the medical certificate was sufficient for the purpose of obtaining an adjournment;
(c)they had not been advised that they were required to attend the Magistrates Court;
(d)their lawyers did not inform the other side or the Magistrates Court of the second appellant's illness prior to the trial date.
2.The appellants considered that they had a good defence to the respondent's claim and this had not been presented on their behalf at the earlier hearings. The second appellant put this in terms that at the earlier hearings the appellants had not been represented 'professionally' and the court had not been told that she was not involved
Broadly speaking, the two matters as referred to by the appellants in their oral submissions to the court drew upon the matters raised more comprehensively by the appellants in the grounds set out in the purported appellant's case dated 25 March 2020 (see [16] - [18] above and annexure 'A' below). In terms of the first matter the appellants went on to submit that it meant that the primary judge erred insofar as his Honour considered the submissions put by their then counsel. The appellants contended that the submissions should have been put and considered on the basis that there was professional negligence on the part of the appellants' earlier legal representation.
Before this court the appellants argued that it was in the interests of justice that the appeal proceed so that the default judgment could be set aside and there could be a trial in the Magistrates Court at Armadale at which they would defend the proceedings. The appellants stressed that they believed themselves to have good grounds to defend the respondent's claim. In particular, the second appellant submitted that she had a strong defence and there was evidence that she should never have been involved in the case.
The appellants also submitted that these matters had not been put to the primary judge (which was said to constitute a failure on the part of their prior legal representation) and the primary judge had not looked into these matters.
In considering whether the appeal should be dismissed we took into account that the appellants are self‑represented litigants. That had two consequences. First, it was necessary to approach the rejected appellant's case dated 25 March 2020 with some flexibility to assess whether it disclosed a viable appeal which, with appropriate amendment, could be put into proper form. Second, care had to be taken to ensure that the appellants' rights were not obfuscated by their own advocacy.

The 21 August 2019 hearing in the Magistrates Court

The hearing before Magistrate Malley was short. The trial was called on. Appearances were announced. The solicitor appearing for the appellants informed the magistrate that her firm had been instructed 'just to represent [the appellants] today to adjourn the trial due to medical issues' and had 'not been instructed in relation to conducting the trial at all'.[11] The magistrate adjourned the hearing for a short time so that the medical certificate could be provided electronically and considered.
[11] ts 3 (21/08/19).
When the matter was recalled the magistrate noted that there was no medical certificate for the first appellant. The solicitor for the appellants informed the magistrate that the first appellant had 'instructed that it [the trial] wouldn't proceed without her presence'.[12] The following exchange then occurred:
[Magistrate]: … Look, the medical certificate says she [the second appellant] has got a sore throat. It is, in my view, a lack of courtesy. There's nothing stopping her turning up. She could have turned up with him [the first appellant]. They could have run the case. He could have asked her questions; there's no problem with that. It seems to me he's the primary witness in relation to it. And, you know, we could have make [sic] allowances. Simply to send in a note saying, well, she has got a throat, and that's really what it comes down to. It is, in my view, not stopping her from coming to court, at least making the application in her presence and me to make a judgment in relation to the degree of problems.
But in relation to him, that is just - it reeks of an intention to avoid the matter. That's what it reeks of. This matter has been going since 2017. I'm not blaming counsel but have a look at the file. It's a travesty taken [sic] this long. It has already had one attempt at trial. That was nothing to do with the parties, it was due to a conflict on part of the magistrate. But I am not - I am absolutely not raising an adjournment on this matter. I appreciate counsel's position; you're simply the messenger. But presuming if the application is refused that you are standing down?
[Appellants' solicitor]: Yes, your Honour. I don't have any instructions in relation to a trial.
[Magistrate]: Okay. So you're not in a position to - - -
[Appellants' solicitor] Proceed.
[Magistrate]: - - - run the - proceed?
[Appellants' solicitor]: Correct.
[Magistrate]: You're excused from the bar table then …[13]
[12] ts 4 (21/08/19).
[13] ts 4 (21/08/19).
Having so ruled on the adjournment application, the appellants' solicitor asked whether the matter could be stood down to contact the appellants to obtain further instructions as to whether they could attend. Conformably with his earlier ruling the magistrate refused to so adjourn stating '[t]here is absolutely not a scintilla of [a] reason why he [the first appellant] should not have been here at least'.[14] The matter then proceeded. In the absence of the appellants having appeared judgment was entered in default of appearance.
[14] ts 4 (21/08/19).

The primary judge's reasons

The primary judge identified, correctly, that the appeal against the refusal of the adjournment application was an appeal by way of rehearing[15] (ie by reconsideration of the material and evidence before the Magistrates Court and any other evidence that, exceptionally, the District Court gave leave to be admitted.)[16]
[15] ts 72 - 73. See Baron v Walsh [2014] WASCA 124 [70].
[16] Magistrates Court (Civil Proceedings) Act, s 40(4), (5); District Court Rules 2005 (WA), r 50(1).

Accordingly, as the primary judge observed,[17] it was necessary for the appellants to identify error on the part of the magistrate in refusing the adjournment application.[18]
[17] ts 72 - 73.
[18] Coal and Allied Operations Pty Ltd v Australia Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
The primary judge also observed, again correctly, that the appeal was against the exercise of a judicial discretion.[19] For that reason, as his Honour plainly appreciated, the appeal in the District Court had to be approached by reference to the principles in House v The King[20] in determining whether there was error. The primary judge could not substitute his own opinion for that of the magistrate merely because the primary judge would have exercised the discretion in a different manner to the magistrate. For the appeal to succeed the appellants had to show that the magistrate made a material error of fact or law. If express error was not apparent, implied error could be inferred if the decision was plainly unjust or unreasonable.[21]
[19] ts 70, 72, 73.
[20] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[21] House v The King (504 - 505).
The primary judge recorded that, in the absence of leave to adduce additional evidence, the appeal had to be considered by reference to the materials before Magistrate Malley at the time he refused the adjournment application.[22] That is undoubtedly correct.[23]
[22] ts 72 - 73.
[23] See the references at fn 16.
The grounds of appeal on the appeal to the District Court are set out in [5] above.
Grounds (ii) and (iii) were demonstrably without merit. In the course of argument before the primary judge the then counsel for the appellants accepted that there was no explanation as to why the first appellant was not in attendance before the magistrate.[24] (That concession was inevitable. The primary judge observed that it was common ground that there was no evidence in relation to the first appellant to explain his absence on the day of trial.)[25] Counsel for the appellant then accepted that there was no proper explanation as to why the second appellant was not present.[26] Counsel for the appellants also accepted that the medical certificate was not adequate - commenting that it did not explain how it prevented the second appellant from attending the trial or giving evidence.[27]
[24] ts 33.
[25] ts 70.
[26] ts 34.
[27] ts 40 - 41.
The primary judge accepted those concessions[28] and found that there was no evidence as to why the appellants were unable to be present.[29] His Honour noted that it had not been argued (and said that it could not sensibly be argued) that the content of the medical certificate contained any explanation for the second appellant's absence. Grounds (ii) and (iii) were rejected.[30]
[28] ts 74.
[29] ts 77, 78. See also ts 70.
[30] ts 82.
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.
Other matters were raised in argument before the primary judge. For example, it was contended that the magistrate was obliged to consider the merits of the respondent's claim.[45] That argument exceeded the grounds of the appeal in the District Court. Moreover, it was not raised on the appellants' behalf before the magistrate and thus could not sustain a discretionary error on the part of the magistrate. The primary judge was correct not to address such extraneous matters.
[45] ts 59 - 62, 67 - 68. See also appellants' submissions dated 25 November 2019, pars 27 - 33, 41, 46 - 47, 51.

Disposition

In a moment we will turn to the grounds relied on by the appellants for their appeal in this court. Before doing so it is instructive to consider what is not relied on. While the appellants suggest that there were matters which the primary judge misunderstood, or of which his Honour was unaware, the appellants otherwise do not allege any error on the part of the primary judge in his reasons for dismissing grounds (i), (ii) and (iii) in the appeal before him in the District Court. Nor do the appellants seek to reagitate the substance of grounds (i), (ii) or (iii). There was no proper basis to do so. The primary judge was correct to dismiss the appeal in the District Court, essentially for the core reason that his Honour gave as recounted at [40] above.
Grounds (ii) and (iii) were effectively conceded before the primary judge. The challenge, by ground (i), to the magistrate's exercise of discretion to refuse the application to adjourn the trial was without merit. The applicable principles to such an exercise of appellate review are well established:
1.The court has an inherent power[46] to grant or refuse an adjournment of proceedings. The power involves the exercise of a judicial discretion.[47]
[46] In the Magistrates Court there is also an express power pursuant to s 16(1)(t) of the Magistrates Court (Civil Proceedings) Act.
[47] Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204 [29].
2.In the Magistrates Court the exercise of the discretion will be informed by s 13 of the Magistrates Court (Civil Proceedings) Act:
(1)In dealing with cases … the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring:
(a)that cases are dealt with efficiently, economically and expeditiously; and
(b)so far as is practicable, that the parties are on an equal footing; and
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
3.The exercise of the discretion will also be informed by the proper principles of case management as enunciated in Aon Risk Services Australia Ltd v Australian National University.[48] For example, insofar as the time of the court is a publicly funded resource, inefficiencies in the use of that resource arising from the vacation or adjournment of hearings is properly taken into account in the exercise of the discretion: the public interest in the efficient use of court resources is a relevant consideration.[49] That is provided for expressly in the Magistrates Court by s 13(2)(c) of the Magistrates Court (Civil Proceedings) Act.
4.There is no entitlement to an adjournment. While all matters relevant to the exercise of the power to adjourn should be weighed it will often be relevant to consider whether the applicant for adjournment has been accorded a sufficient opportunity to prepare and present his or her case.[50]
5.As the decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, it is seldom that an appellate court will review such a decision. Usually it is necessary to show that the refusal of an adjournment defeats the rights of a party.[51]
6.Insofar as the unsuccessful applicant for an adjournment is challenging the exercise of a discretion, any such appeal requires application of the principles in House v The King.[52] Moreover, special restraint applies to appellate intervention insofar as the order is interlocutory in nature and concerns a matter of practice and procedure.[53]
[48] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
[49] Aon Risk Services Australia Ltd v Australian National University [5], [23] - [27], [30].
[50] Aon Risk Services Australia Ltd v Australian National University [94], [102], [112].
[51] Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390, 395 - 396; MTI v SUL [No 3] [2012] WASCA 145 [38].
[52] Snook v Registrar of Fines Enforcement Registry [30].
[53] Mavaddat v Westpac Banking Corporation [2014] WASCA 128 [38].
The basis for the appellants' application to adjourn the trial before Magistrate Malley was manifestly inadequate. The medical certificate as relied on did not apply to the first appellant. It did not suggest that the second appellant was unable to attend to trial. The evidence as constituted by the medical certificate (being the sole evidence relied on in support of the adjournment application) provided no adequate explanation for the second appellant's non‑attendance and no explanation at all for the first appellant's non‑attendance. It provided no proper basis to adjourn a trial as had been listed some seven months earlier. The appellants were provided with a sufficient opportunity to defend the claim. On the evidence before the magistrate there was nothing of moment which prevented the appellants from attending before the Magistrates Court to participate in the trial. Rather than attending the Magistrates Court on 21 August 2019 - as they were required to do by r 70 of the Magistrates Court (Civil Proceedings) Rules - the appellants instead sought adjournment of the trial on an inadequate basis.
In all the circumstances, having proper regard to the countervailing interests of the respondent in having his case dealt with economically and expeditiously as well as the public interest in the efficient use of the Magistrates Court's judicial resources, it was open to the magistrate to conclude that the adjournment application should be refused and the hearing should proceed. That was the gravamen of the primary judge's reason for dismissing ground (i). His Honour's conclusion was correct.
We turn then to the matters relied on by the appellants in their appeal in this court.
Grounds 20 - 27 may be put aside at once. They raise matters concerning the hearing before the second magistrate on 25 September 2019 rather than the hearing before Magistrate Malley and the primary judge. Those matters cannot establish any error on the part of the primary judge.
Grounds 1 - 19 are said to concern the 21 August 2019 hearing. Tellingly, they are put in terms of there being a substantial miscarriage of justice due to the error of the appellants' then lawyer rather than any error on the part of the primary judge (or, for that matter, the magistrate). None of the 19 grounds replicate the grounds before the primary judge. There is an issue as to whether, in an appeal of the type before this court, an appellant may be permitted to advance a new point not taken before the District Court.[54] Plainly the appeal is by way of rehearing[55] and this court must decide the appeal on the material and evidence before the Magistrates Court and the District Court and any other evidence that, exceptionally, this court gives leave to be admitted.[56] We do not consider it necessary to consider whether it is too late on an appeal to this court pursuant to s 42 of the Magistrates Court (Civil Proceedings) Act to raise a point about the hearing in the Magistrates Court that was not taken in the District Court. For the reasons set out below, grounds 1 - 19 are without merit and ought to be rejected on that basis in any event.
[54] Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [11] - [23], [67] - [71].
[55] Supreme Court (Court of Appeal) Rules, r 25.
[56] Magistrates Court (Civil Proceedings) Act, s 42(3) - (4).
Each of grounds 1 - 19 is put in terms of the 'Primary court' having either misunderstood a particular matter (grounds 1 - 10) or not being aware of a particular matter (grounds 11 - 19). In broad terms the matters concern the nature, extent and circumstances of the appellants' legal representation (including whether the appellants' solicitor was truthful) and the legal advice provided to the appellants. Based on the second category it is alleged that the Primary court misunderstood that the appellants did not consciously decide to take a risk by absenting themselves from the trial (ground 10) being unaware, due to lack of advice, that they must attend court (grounds 6 - 7, 16) and of the consequences that judgment could be entered if the application for adjournment was refused (grounds 4 - 5, 9, 15, 17 - 19).
In refusing the adjournment application the magistrate did not draw any conclusion as to the appellants' legal representation or what legal advice, if any, the appellants had received. There is nothing to suggest any misunderstanding on the part of the magistrate as to these matters. Even if, contrary to the indications provided by the magistrate's reasons, there was some such misunderstanding, it was not material to the magistrate's decision to refuse the adjournment. The highest that the magistrate went was to observe that, as to the first appellant, his non-attendance reeked of an intention to avoid the matter. That finding was open as a matter of inference given the lack of any evidence to explain the first appellant's non-attendance and the belated nature of the adjournment application.
There has not been any application for leave to admit additional evidence. In those circumstances the magistrate's decision cannot be challenged in this appeal on the basis of evidence as to legal representation and advice - or lack of conscious assumption of risk - not before the magistrate or the primary judge. In any event, on a challenge to a discretionary decision on a matter of practice and procedure, this court will not interfere with the exercise of the magistrate's decision based on a fact, matter or argument that was not raised before the magistrate.[57]
[57] Snook v Registrar of Fines Enforcement Registry [23].
Unlike the magistrate, the primary judge did draw inferences as to the legal advice the appellants had received and that the appellants appreciated the likely consequences to them should the adjournment application be refused (see [39] above). It is evident from grounds 1 ‑ 19 that the appellants dispute the factual correctness of the inferences drawn by the primary judge. We consider, however, that an appeal on this basis alleging error on the part of the primary judge has no reasonable prospects of success. First, the inferences drawn by the primary judge were open on the evidence before the magistrate and the primary judge. It cannot be said that the conclusions of the primary judge were wrong and that they should be corrected.[58] Second, and more importantly, even if those conclusions were erroneous it would not result in the appeal being allowed. For the reasons we have given at [44] - [46] above, none of which rely on inferences as to the legal advice received and whether the appellants took a conscious risk, it was plainly correct to conclude that there was no discretionary error on the part of the magistrate in refusing the adjournment application. The contrary contention is not reasonably arguable.
[58] See Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369.
The remaining grounds within the purported appellant's case dated 25 March 2019 are grounds 28 ‑ 33. These fall into two classes. First, allegations concerning the merits of the respondent's claim - including that the second named appellant was not involved in the dealing with the respondent (grounds 28 - 31). Second, allegations concerning the conduct of the respondent's lawyer (grounds 32 - 33). These latter allegations are simply irrelevant to Magistrate Malley's decision to refuse the adjournment application and need not be further considered.
The merits of the respondent's claim - and in particular whether one or both of the appellants had a good defence on the merits - was not raised before Magistrate Malley on the application to adjourn the trial. So far as it is now asserted that there is a good defence on the merits, that would have been relevant to the appellants' application to set aside the default judgment. An application to that effect was made, dismissed by Magistrate Millington on 25 September 2019, and no appeal was forthcoming. The appeal before this court is only concerned with Magistrate Malley's refusal of the adjournment application and the appeal therefrom to Stevenson DCJ. Allegations of illegal conduct on the part of the respondent and assertions to the effect that one or both of the appellants had a good defence on the merits - or that these matters have not been looked into - are outside the proper purview of the appeal; they concern facts, matters or arguments that were not raised before the magistrate - or, for that matter, the primary judge (there being no further evidence adduced before the primary judge). They cannot provide a proper basis to interfere with the exercise of a judicial discretion as to whether to adjourn the hearing.
None of grounds 28 - 33 had reasonable prospects of success given the applicable legal framework that applied to the subject matter of the appeal.

Conclusion and orders

We were satisfied, for the reasons set out above, that the appellants' appeal had no reasonable prospects of success. This was a case where it would be futile to further extend the time for the appellants to file an appellant's case. The materials relied on by the appellants disclosed no reasonably arguable grounds and were not, in our view, capable of amendment so as to identify grounds that had reasonable prospects of success. The appeal being doomed to fail it was in the interests of justice that it be brought to an immediate conclusion.

For these reasons we made orders that:
1.The appeal is dismissed.
2.The appellants pay the respondent's costs of the appeal fixed in the sum of $1,000.

Annexure 'A': The appellants' grounds of appeal

The purported appellant's case dated 25 March 2020 states the following:
Primary Court -
Armadale Court - At the hearing on 21^st Aug 2019 - TRIAL set for 2 days (21^st and 22^nd Aug 2019)
on 25^thSep 2019 - Application to set aside the default judgement
The District Court on 27^th Nov 2019

In the Primary court a substantial miscarriage of justice has occurred due to the Appellants Lawyer Dhanraj's error as mentioned below:
1.The Primary court has misunderstood that we had sent lawyer Ms. Mansoor on the day of Trial.
2.The Primary court has misunderstood that we had appointed Ms Mansoor just a day before the Trial.
3.The Primary court has misunderstood the fact that we have briefed her about the Trial
4.The Primary court has misunderstood that we both were given honest and proper legal advice.
5.The Primary court has misunderstood the fact that we were given honest advice with regard to medical certificate.
6.The Primary court has misunderstood the fact that we were given honest and correct advice as to that we must attend even if we are unwell.
7.The Primary court has misunderstood that we were given honest and correct advice as to that Appellants - Kalpana and Chand must attend and must provide the medical certificate even if the lawyer was making the application.
8.The Primary court has misunderstood the fact that we both have been honestly and correctly advised by the lawyers that if the application is rejected then what the outcome will be.
9.The Primary court has misunderstood the fact we were given honest advice of the consequences if the application made by lawyers was unsuccessful.
10.The Primary court has misunderstood the fact we both did not consciously decide to take risk by absenting ourselves from the trial.
11.The Primary court was unaware of the fact that Lawyer Ms Mansoor did not speak the truth
12.The Primary court was unaware of the fact that we had instructed Dhanraj in Jan/Feb 2019, given him all the documents and explained the case very well.
13.The Primary court was unaware of the fact that Dhanraj did not honestly represent us on the Trial date instead he sent Lawyer Ms Mansoor whom we do not know and she does not know any thing about the case.
14.The Primary court was unaware of the fact that it was Lawyer's professional negligence, he should have contacted the court and the other party, well before the Trial date.
15.The Primary court was unaware of the fact that when Kalpana asked if the medical certificate is good enough, Lawyer Dhanraj text back saying "that should be good"
16.The Primary court was unaware of the fact that Lawyer Dhanraj never advised us both that we both must attend the court even if he was making the application
17.The Primary court was unaware of the fact that Lawyer never advised us of the consequences if the application was rejected or refused.
18.The Primary court was unaware of the fact that because we were not advised honestly we were not aware of what the position was and what would happen on Trial date.
19.The Primary court was unaware of the fact that we both were not advised by the lawyer Dhanraj or by lawyer Ms. Mansoor that if the trial proceeds then we can have a judgment against us both.

THERE HAS BEEN ERROR OF FACTS cause of our Lawyer Dhanraj's professional negligence on the court hearing date -25^th Sep 2019. Points 20 to 27
20.The Primary court was unaware of the fact that Lawyer Dhanraj was not disclosing the true facts and was lying for his own convenience.
21.The Primary court was unaware of the fact that Appellant Kalpana kept interrupting unable to express or speak, because Lawyer Dhanraj was not disclosing the true facts and was lying for his own convenience.
22.The Primary court was unaware of the fact that why Lawyer Dhanraj was presenting Fiona Stanley hospital admittance letter and Chand's medical certificate on 25^th Sep 2019, instead of submitting them well before the Trial date 21^st Aug 2019.
23.The Primary court was unaware of the fact that Lawyer Dhanraj was not disclosing the true facts. When Hon Magistrate Mallington asked why was someone like you appointed? and Lawyer Dhanraj lied saying "he was not sure".
24.The Primary court was unaware of the fact that Lawyer Dhanraj was not disclosing the true facts. He mentioned to Hon Magistrate Mallington that someone was there on Trial date, as though he was unaware that he himself sent Ms Mansoor. He pretended as though we both Appellant have instructed Ms Mansoor to attend and to inform the court that we were sick.
25.The Primary court was unaware of the fact that Lawyer Dhanraj was misleading the court and Hon Magistrate Mallington by not disclosing the true facts. When asked by Hon Magistrate Mallington, if we had instructed someone a day before. Dhanraj replied yes
26.The Primary court was unaware of the fact that Lawyer Dhanraj was not disclosing the true facts. When asked by Hon Magistrate Mallington, "the medical certificate are no good. Why did the Appellants instruct someone well before the Trial date Dhanraj replied "yes I do believe that". Dhanraj did not speak the truth.
27.The Primary court was unaware of the fact that Lawyer Dhanraj did not disclose the true facts and was misleading the court and Hon Magistrate Mallington. When asked by Magistrate "why wasn't someone like you put in place". Lawyer Dhanraj did not speak the truth.
28.There has been an error of fact that Kalpana should not be involved in this case. The submission made by the respondent and his lawyer, on many occasions clearly prove that Kalpana should not be involved in this case.
29.The Primary court has overlooked or not looked into the contradictive statements submitted by Pranav Bhavsar.
30.The Primary court has not looked into the fact if there was an agreement. (Error of Fact)
31.There has been an error of fact, that the audio recording obtained and submitted by Respondent is illegal.
32.There has been an error of fact - The Primary court has not looked into the unprofessional conduct by Respondent's lawyer Kristopher, because he continued the proceedings against Kalpana without there being any evidence that Kalpana owed Pranav any money.
33.There has been an error of fact - The Primary court has not looked into the unprofessional conduct by Respondent's lawyer Kristopher. The written submission made by Lawyer Kristopher clearly indicate that Kalpana should not be involved in this case.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Research Orderly to the Honourable Justice Vaughan
8 APRIL 2020