Seymour v Jaegar
[2019] WASCA 19
•30 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SEYMOUR -v- JAEGAR [2019] WASCA 19
CORAM: MURPHY JA
BEECH JA
HEARD: 25 JANUARY 2019
DELIVERED : 25 JANUARY 2019
PUBLISHED : 30 JANUARY 2019
FILE NO/S: CACV 99 of 2018
BETWEEN: MICHAEL THOMAS SEYMOUR
Appellant
AND
RUTH ELIZABETH JAEGAR
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : APP 59 of 2018
Catchwords:
Practice and procedure - Application for joinder, production of documents, substituted service and costs - Whether evidence disclosed a proper basis for orders sought - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Morison Legal |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Currie v Currie [No 2] [2019] WASCA 2
Dodds v Kennedy [2011] WASCA 32
REASONS OF THE COURT:
Introduction
This matter came to hearing on 25 January 2019 by way of an amended registrar's notice to attend dated 17 January 2019 (1) to consider the appellant's application in an appeal filed on 22 November 2018 (Application), and (2) for the appellant 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) for failure to file an appellant's case. On that occasion, we dismissed the Application and made a springing order for the filing of an appellant's case. We said we would subsequently provide our reasons. These are our reasons.
The Application
By the Application, the appellant sought, in effect, the following orders:
1.the joinder of the respondent's son and two lawyers who had acted for the respondent, as respondents to the appeal;
2.the production by the respondent, the respondent's son, and the two lawyers of a variety of documents referred to in an annexure to the Application;
3.substituted service by email;
4.costs; and
5.such other order as the court deems appropriate in the circumstances.
By the annexure to the Application, the appellant sought 14 categories of documents from the respondent, five categories of documents from the respondent's son, four categories of documents from one of the respondent's lawyers, and six categories of documents from the other lawyer. The categories are widely drawn, and many relate to legal professional communications between the respondent and her lawyers.
The substantive appeal is against the ex tempore decision of Lonsdale DCJ on 4 October 2018, in which her Honour dismissed the appellant's application for the production of documents in an appeal which he had commenced in the District Court (primary decision). The appeal in the District Court was an appeal against interlocutory orders of Magistrate Mahon made on 18 May 2018 in proceedings commenced by the appellant against the respondent in the Bunbury Magistrates Court.[1]
[1] Lonsdale DCJ's ex tempore decision, 4 October 2018, ts 14.
Background
The appellant and respondent were known to each other prior to 2015. The appellant asserted that he entered into a verbal contract in about late 2015 with the respondent for him to undertake work and make inquiries on behalf of the respondent, and for him to receive a 50% split of any funds recovered by the respondent. The respondent disputed the existence of such an agreement.[2]
[2] Lonsdale DCJ's ex tempore decision, 4 October 2018, ts 15.
The appellant asserted that (1) in 2016, he collected approximately $50,000 for the respondent which was then paid into an account in the respondent's name, and (2) the respondent owed him $25,000 plus travel expenses of $700.[3]
[3] Lonsdale DCJ's ex tempore decision, 4 October 2018, ts 15.
The respondent asserted that some time following the payment of the $50,000, the appellant, respondent, and respondent's son met and discussed paying the appellant $10,000 in full and final settlement of any claim. The appellant was paid $10,000, but asserted that he is owed a balance of $15,700. The respondent contended, in effect, that the payment of $10,000 was in full settlement of the appellant's claim.[4]
[4] Lonsdale DCJ's ex tempore decision, 4 October 2018, ts 16.
The appellant's claim in the Magistrates Court
It appears that the appellant originally commenced proceedings in New South Wales, and those proceedings were transferred to the Bunbury Magistrates Court, and given number GCLM 3966 of 2017.[5]
[5] Hearing on 18 May 2018 before Magistrate Mahon, ts 61 - 62.
On 18 May 2018, Magistrate Mahon in the Bunbury Magistrates Court made certain interlocutory orders in GCLM 3966 of 2017, including orders (1) dismissing the appellant's application filed on 20 February 2018 to strike out the respondent's defence and for judgment to be entered for the appellant, (2) granting the respondent's application filed on 1 March 2018 for leave to file a counterclaim and costs, and (3) requiring the appellant to pay security for costs in the sum of $18,000 by 27 July 2018, failing which his claim would be dismissed.[6]
[6] Lonsdale DCJ's ex tempore decision, 4 October 2018, ts 14. It appears that the Magistrates Court matter is still on foot, as an application filed by the appellant is listed to be heard on 6 February 2019.
The appellant's appeal to Lonsdale DCJ
On 5 June 2018, the appellant lodged an appeal in the District Court against Magistrate Mahon's interlocutory decision. In the primary decision, Lonsdale DCJ observed that the appellant grouped his numerous grounds of appeal into three areas of complaint: (1) the first 11 grounds alleged that the magistrate erred in not striking out the respondent's defence, (2) the second group of grounds alleged that the magistrate erred in granting the respondent leave to file a counterclaim out of time, and (3) the third group of grounds alleged that the magistrate erred by ordering security for costs in favour of the respondent.[7]
[7] Lonsdale DCJ's ex tempore decision, 4 October 2018, ts 14 - 15.
On 21 July 2018, the appellant made an application in the appeal to the District Court for orders that (1) the respondent produce to the appellant a variety of documents, and (2) the respondent's son, who was not a party to the proceedings, also produce documents.[8]
[8] Lonsdale DCJ's ex tempore decision, 4 October 2018, ts 15.
On 1 October 2018, Lonsdale DCJ heard the application. The following exchange occurred:[9]
LONSDALE DCJ: So what's the basis upon which you say that I should make that order?
THE APPELLANT: Well, because I'm seeking to have the other side produce documents which they've refused to produce during the hearing and the magistrate made no order in relation to that. He avoided the significance of the failure of the respondent to produce documents and, furthermore, he avoided dealing with the fact that the respondent had maintained that there was the supposed agreement between her, her son and me that I accepted from her $10,000 in full settlement in 2016.
…
THE APPELLANT: I say that that was a fabricated defence. It was drafted by the former lawyers in the matter. They refused to produce any documents. That same defence was copied later on by the current lawyer for the respondent by way of an additional or a further defence.
…
THE APPELLANT: So without these documents being produced I'm hamstrung, your Honour, in properly conducting this appeal when it's finally listed.
[9] Hearing on 1 October 2018 before Lonsdale DCJ, ts 5 - 6.
In the primary decision on 4 October 2018, Lonsdale DCJ said:[10]
[10] Lonsdale DCJ's ex tempore decision, 4 October 2018, ts 16 - 17.
The appellant relies on three affidavits filed in this appeal, namely, his affidavits of 30 July, 23 August and 21 September 2018, and … it is plain that the appellant claims that the respondent's son would be able to give evidence that conflicts with the respondent's position and which would support the appellant's account of the understanding between the parties as to the payment of $10,000 and what that represented. The appellant submits that this will be supported by the documentary evidence such as telephone records which he seeks to be produced as part of this application.
…
The present appeal relates not to the merits of the claim but to whether the learned magistrate erred in making the interlocutory orders … and that requires the appellant to have demonstrated some error in the exercise of his discretion.
... It is accepted that an appeal from a decision of a magistrate is by way of hearing [sic - rehearing] and this is reflected in the provisions of section 40(4) of the Magistrates Court (Civil Proceedings) Act which states that the District Court must decide the appeal on the material in evidence that was before the Magistrates Court and any other evidence that it gives leave to be admitted.
… [A]ny other evidence cannot be admitted unless the appellant demonstrates exceptional reasons why leave should be granted to adduce that evidence. In my view, the appellant has not demonstrated such exceptional circumstances.
…
At the time that his Honour Magistrate Mahon made the orders in question he was not required to adjudicate on matters of credibility between the parties and … it would have been inappropriate for him to do so. In my view, there can be no reason and certainly no exceptional reason why the appellant should be permitted to adduce the evidence that he seeks access to at this stage of the proceedings.
The evidence in question, if indeed it exists, goes not to the question of whether the learned magistrate erred in making the interlocutory orders that he did so on that basis I would dismiss the application and that is the order that I make.
Chronology of events in the appeal in this court
On 18 October 2018, the appellant filed an appeal notice against the primary decision. The appeal notice states that leave to appeal is required pursuant to s 60 of the Supreme Court Act 1935 (WA).
On 19 October 2018, the registrar wrote to the appellant advising that the appellant's case must be filed and served by 1 November 2018.
On 23 October 2018, the appellant filed a service certificate, certifying that on 22 October 2018, the appellant served the respondent by email with a copy of the appeal notice.
On 1 November 2018, the appellant attempted to file an appellant's case.
On 7 November 2018, the registrar ordered that the time for the appellant to file and serve the appellant's case be extended to 23 November 2018.
On 8 November 2018, the registrar wrote to the appellant advising that the appellant's case had not been accepted for filing because it did not comply with the rules of the Supreme Court (Court of Appeal) Rules. The registrar noted that the 'orders wanted' were in the nature of interim orders requiring the appellant to make an application seeking an interim order together with an affidavit in support.
On 9 November 2018, the appellant wrote to the registrar stating, in effect, that the 'orders wanted' 'were in fact the orders sought in the appeal, and [the appellant] saw no distinction with orders of an interim nature, but will now [file an application] with a supporting affidavit'.
On 15 November 2018, the respondent filed a notice of respondent's intention, stating that the respondent does not intend to take part in the appeal and would accept any order made in the appeal other than an order as to costs.
On 16 November 2018, the registrar wrote to the appellant noting that the Court of Appeal Office had not received any appellant's case from the appellant.
On 22 November 2018, the appellant filed the Application.
On 22 November 2018, the appellant filed an affidavit which he had sworn on 19 November 2018 in support of the Application. The appellant's affidavit contains a discursive, and in many respects incoherent, history of various matters concerning his complaints against the respondent, the respondent's son, and the respondent's lawyers. He asserts, without any discernibly proper foundation for the allegation, that the respondent gave false evidence on oath about her address. He also asserts, again without any discernible proper foundation, that the respondent's defence to his claim, to the effect that there had been a settlement of his claim, 'was a fabrication'.[11] He also says that he relies on his affidavits in the District Court sworn 23 August 2018 and 21 September 2018. Those affidavits also contain general assertions of a similar kind to those raised in his affidavit filed 22 November 2018 in this court.
[11] Appellant's affidavit, pars 7 - 11.
The appellant forwarded to the court an affidavit sworn 20 January 2019, and a chronology dated 24 January 2019, which were not accepted for filing, but which we received and gave him leave to rely on it at the hearing of the Application.
Disposition
We dismissed the Application because:
1.The appellant, at the hearing of the Application, did not press orders for substituted service against the respondent. As noted earlier, the respondent had filed a notice of intention.
2.Although the appellant says in the affidavit of 21 September 2018 (at par 9) that the documents are 'critical to [his] progressing this appeal', the appellant's affidavit material provided no rational explanation in support of the Application for joinder or the production of documents.
3.This appeal is concerned, only, with whether Lonsdale DCJ erred in dismissing the appellant's appeal against the interlocutory orders of Magistrate Mahon in proceedings between the appellant and the respondent. None of the persons sought to be joined by the appellant to this appeal were parties either to the primary proceedings in the District Court, or to the proceedings in the Magistrates Court. Further, even if the appellant were successful in the appeal, no order could properly be made by this court in the disposition of the appeal which would directly affect the rights and liabilities of any of those persons.[12]
4.As there was no proper basis to join the other persons to the appeal, any question of substituted service on them did not arise.
5.In relation to the documents sought to be produced, none of the classes of documents, on their face, is arguably relevant to the proper disposition of the appeal. The documents could not conceivably assist in establishing error in her Honour's reasons, referred to in [13] above, or otherwise. The appellant appeared to accept that this was so, but contended that an order for production should be made because the documents were necessary for the proper resolution of the broad dispute between the appellant and the respondent. Axiomatically, this court's power to order production of documents can properly be exercised only for the purpose of aiding in the just disposition of the appeal. The subject matter for this appeal is limited, as explained in [26.3] above. As the documents were irrelevant to the disposition of the appeal, there were no grounds upon which to make an interlocutory order for their production in the appeal.
6.The materials relied on by the appellant appear to indicate that he approaches the appeal to this court on the basis that the court will conduct a review de novo of both the interlocutory decision of Lonsdale DCJ and the interlocutory decision of Magistrate Mahon. That is a fundamental misconception of the nature of this appeal. This appeal is concerned, only, with the correction of any error on the part of Lonsdale DCJ.[13] Moreover, in a discretionary judgment on a matter of practice and procedure, an appeal court exercises special restraint before interfering.[14]
7.In any event, the application to produce documents is, on its face, oppressive, and no order could properly be made in terms of the annexure to the Application.
[12] See Currie v Currie [No 2] [2019] WASCA 2 [236].
[13] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] ‑ [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
[14] Dodds v Kennedy [2011] WASCA 32 [5].
The appellant submitted, in effect, that he had been unable to file his appellant's case because he could not settle the green appeal book index because he was awaiting the receipt of the documents the subject of the Application. Having dismissed the Application, the appellant's reason for not having filed and served an appellant's case disappeared. Despite the serious delays, we gave the appellant one last chance to file an appellant's case, and made a springing order to that effect.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
Associate to the Honourable Justice Murphy30 JANUARY 2019
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