Seymour v Jaeger [No 2]
[2020] WADC 15
•11 FEBRUARY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SEYMOUR -v- JAEGER [No 2] [2020] WADC 15
CORAM: PRIOR DCJ
HEARD: 4 SEPTEMBER 2019
DELIVERED : 11 FEBRUARY 2020
FILE NO/S: APP 59 of 2018
BETWEEN: MICHAEL THOMAS SEYMOUR
Appellant
AND
RUTH ELIZABETH JAEGER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MAHON
File Number : PER GCLM 3966 2017
Catchwords:
Appeal - Magistrates Court - Application to strike out defendant's defence and enter judgment for the plaintiff - Application for leave to file a counterclaim - Application by defendant for security for costs - Turns on own facts
Legislation:
Corporations Act 2001 (Cth)
District Court Rules 2005 (WA)
Legal Profession Act 2008 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Civil Proceedings) Rules 2005 (WA)
Magistrates Court Act 2004 (WA)
Rules of the Supreme Court 1971 (WA)
Service and Execution of Process Act 1992 (Cth)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Alfaro v Brokesova [2013] WASCA 38
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Avsar v Binning [2009] WASCA 219
Blair v Curran (1939) 62 CLR 464
Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Coxon v Wilson [2016] WASCA 48
Crawley Investments Pty Ltd v Noble Group Ltd [No 2] [2015] WASC 16
Dare v Pulham [1982] HCA 70; 148 CLR 658
Dodds v Kennedy [2011] WASCA 32
Fazio v The City of Melville [No 2] [2013] WADC 147
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118
Four Vanguard Services E Navagacao Lda v ENI Australia Ltd [2014] WASC 473
Googe v Spoljaric [2017] WADC 99
Hitchcock v Goldspan Investments Pty Ltd [No 3] [2015] WASC 277
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jaddcal Pty Ltd v Minson [No 2] [2011] WASC 138
Jones v Darkan Hotel [2014] WASCA 133
Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Manonai v Burns [2011] WASCA 165
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270
Morton Seed and Grain Pty Ltd v Corser and Corser [2006] WADC 90; (2006) 43 SR (WA) 182
Norbis v Norbis (1986) 161 CLR 513
Pettit v Evolution Mining Ltd [No 2] [2017] WADC 68
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Seymour v Jaegar [2019] WASCA 19
Seymour v Jaeger [2017] NSWSC 25
Titelius v Crowe [2017] WADC 116
Velez Pty Ltd v Tudor [2011] WASCA 218
Waite v Hennah [2019] WASC 468
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57
Westpac Banking Corporation v Ninan [No 3] [2016] WASC 250
Wu v Zhao [2018] NSWSC 1182
Xu v Griffiths [2019] WADC 126
PRIOR DCJ:
Introduction
This is an appeal against the interlocutory orders of Magistrate Mahon made on 18 May 2018 in proceedings commenced by Mr Seymour against Mrs Jaeger in the Perth Magistrates Court which were transferred to the Bunbury Magistrates Court.
A convenient summary of the proceedings commenced by Mr Seymour against Mrs Jaeger is described in Seymour v Jaegar:[1]
5The 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.
6The 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.
7The respondent asserted that some time following the payment of the $50,000, the appellant, respondent, and the 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.
(footnotes omitted)
[1] Seymour v Jaegar [2019] WASCA 19 (Jaegar spelt incorrectly, correct spelling is Jaeger)
The proceedings are in relation to breach of an oral contract between the parties.[2] Mrs Jaeger denies a contract existed between the parties. In the alternative Mrs Jaeger's defence is that if work was carried out by Mr Seymour for Mrs Jaeger for remuneration it was unlawful and unenforceable as it was legal work and Mr Seymour was in breach of the Legal Profession Act 2008 (WA) (LPA) in performing it, or any money paid by Mrs Jaeger to Mr Seymour was paid under duress, or any agreement between the parties was for past consideration or the work was done on a voluntary basis. Mrs Jaeger also alleges the $10,000 paid to Mr Seymour was in full and final settlement of all and any claims which Mr Seymour might have against her. Mr Seymour denies he engaged in settlement negotiations with Mrs Jaeger or her son and denies the $10,000 he received was pursuant to a compromise agreement.
[2] Hearing on 20 April 2018 before Magistrate Mahon, ts 8.
The outcome of the proceedings will be heavily influenced by credibility findings made in relation to both parties and Mrs Jaeger's son should they give evidence at the trial.
Mr Seymour originally commenced proceedings against Mrs Jaeger in New South Wales on 19 July 2016 in the Local Court at Sydney. A permanent stay was ordered on those proceedings on 21 September 2016 pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth). Mr Seymour's appeal from this decision to the Supreme Court of New South Wales was dismissed.[3] A costs order was made against Mr Seymour on 2 February 2017 in the sum of $7,500.
[3] Seymour v Jaeger [2017] NSWSC 25.
Mr Seymour then commenced proceedings against Mrs Jaeger in the Perth Magistrates Court on 28 February 2017 as a minor case claim. By an order made 28 August 2018 the proceedings were transferred to the Bunbury Magistrates Court. On 7 December 2017 Magistrate Mahon ordered the proceedings proceed as a general procedure claim.
The decision the subject of appeal
Mr Seymour made an application filed 20 February 2018 to strike out Mrs Jaeger's defence and for judgment to be entered for Mr Seymour. Mrs Jaeger made an application filed 1 March 2018 for leave to file a counterclaim and an application filed 14 March 2018 for Mr Seymour to provide security for costs (the applications). The applications were supported by various affidavits sworn by Mr Seymour, Mrs Jaeger and Mrs Jaeger's lawyer, Mr Ian Morrison, in February, March and April 2018.
The applications were heard in Bunbury Magistrates Court on 20 April 2018 by Magistrate Mahon.[4] The magistrate gave his decision on the applications on 18 May 2018 and made the following orders:
1.The Claimant's application filed on 20 February 2018 is dismissed.
2.The Defendant's application for leave to file counterclaim and costs filed on 1 March 2018 is granted. Counterclaim to be filed and served within 14 days of Claimant paying security for costs as per order 4 below or by 4:00pm on 10 August 2018 in default of order 4.
3.Defendant's application for Claimant to pay security for costs filed on 14 March 2018 is granted.
4.Claimant is to pay security for costs in the sum of $18,000 by 4:00pm 27 July 2018.
5.If the Claimant fails to comply with order 4 above, the claim will stand dismissed.
6.The matter is to be listed for a Pre Trial Conference on the first available date not before 28 days from the date of filing of the counterclaim.
7.The costs of the Defendants successful application are reserved.
[4] A number of interlocutory applications were made by the parties in relation to this matter which were dealt with by various magistrates before the applications the subject of this appeal were heard. These applications include a default judgment application made by Mr Seymour and security for costs application made by Mrs Jaeger which were both dismissed. At the relevant time those applications were made the proceedings were a minor case claim.
Mr Seymour appeals against orders 1 - 4.
The magistrate also gave further reasons on 18 May 2018 for ordering on 7 December 2017 that the matter proceed as a general procedure claim.
The magistrate's decision on 18 May 2019 was an interlocutory decision because it did not finally determine the rights of the parties in the principal cause pending between them.
Grounds of appeal
Mr Seymour by his Appeal Notice appeals to this court on the following grounds:
That the Magistrate erred in relation to the 3 applications under consideration, where the written submissions of the appellant were not addressed by the Magistrate and the relevant law referred to therein was substantially ignored.
The specific grounds in respect of each interlocutory matter are attached.
On receipt of the relevant transcribed tapes of the hearings, I will be in a better position to review the grounds of appeal and reserve my rights in relation thereto.
Attached to the Appeal Notice is a document headed 'In the matter of the appeal from decision made on 18 May 2018: Grounds of Appeal'. The document contains 38 paragraphs. Eleven paragraphs relate to Mr Seymour's application to strike out Mrs Jaeger's defence pursuant to s 17(b) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA). Ten paragraphs relate to Mrs Jaeger's application for leave to file a counterclaim out of time. Seventeen paragraphs relate to Mrs Jaeger's application for security for costs (Document 1).
A document headed 'Additional Grounds of Appeal in No 59/2018' was filed by Mr Seymour on 7 September 2018. This document contains 11 paragraphs with some sub-paragraphs. The document refers to all three applications and purports to set out further appeal grounds (Document 2).
The grounds of appeal are prolix, convoluted and repetitive. Many of the 50 paragraphs in the two documents described in pars 13 ‑ 14 are submissions rather than grounds of appeal. For ease of reference I will refer to the grounds of appeal as I understand them by reference to paragraph numbers in the order they were filed by Mr Seymour. I will deal with the appeal grounds separately in relation to each of the three applications.
At the hearing of the appeal Mr Seymour appeared by video link. He relied upon the written and oral submissions he made before the magistrate and the written submissions he filed in this court. Mr Seymour also relied upon the various affidavits filed by both parties at Bunbury Magistrates Court in support of or in response to the applications. He made no further submissions at the hearing of the appeal.
As Mr Seymour was self-represented in this appeal and before the magistrate I have reminded myself of the principles relating to litigants in person summarised by Gething DCJ in Googe v Spoljaric[5] in dealing with this appeal. In summary those principles are:[6]
(a)a litigant in person should be afforded some latitude and the documents in which he articulates his case should be approached with some flexibility: Smart v Prisoner Review Board (WA) [2012] WASCA [10] (Pritchard J);
(b)the court needs to be careful to ensure that if a litigant in person 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);
(c)at the same time, the court must ensure that any latitude given does not work an injustice to the other party: Glew v Frank Jasper Pty Ltd [2010] WASCA 85 [10] (judgment of the court).
[5] Googe v Spoljaric [2017] WADC 99 [13] - [15].
[6] Xu v Griffiths [2019] WADC 126 [17] (Glancy DCJ).
Mrs Jaeger did not appear at the hearing of the appeal. Mrs Jaeger's notice of intention dated 6 July 2018 indicated she did not intend to take part in the appeal and will accept any order made by the court in the appeal other than as to costs. At the hearings before the magistrate Mrs Jaeger was represented by legal counsel.
The nature of this appeal
A judgment of the Magistrates Court on a general procedure claim may be subject to an appeal to the District Court: s 40(1) MCPPA.[7]
[7] The proceedings originally were a minor claim but on 7 December 2017 the magistrate ordered they should proceed as a general procedure claim pursuant to s 28(3)(b) MCPPA. The magistrate gave further reasons for this decision on 18 May 2018.
In this appeal I must reconsider the evidence which was before the magistrate. The appeal is in the nature of a re‑hearing: District Court Rules 2005 (WA) (DCR) r 50(1): s 40(4) MCCPA.
Mr Seymour must demonstrate and satisfy me that there was some legal, factual, or discretionary error on the part of the magistrate: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission.[8] If such an error has been made, I can substitute my decision for that of the magistrate. If no error is shown, I cannot intervene: Allesch v Maunz.[9]
[8] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203.
[9] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
The fact that Mr Seymour is disappointed with the result does not mean that the appeal court is able to intervene. Mr Seymour must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles Mr Seymour to the orders or relief that he seeks: Avsar v Binning.[10]
[10] Avsar v Binning [2009] WASCA 219 [37].
So far as a discretionary error is concerned, the well-known principles enunciated in House v The King[11] are applicable. Before the magistrate's discretion should be reviewed, it must appear that some error has been made in exercising the discretion, such as acting on a wrong principle, allowing extraneous or irrelevant matters to guide or affect him, mistaking the facts or failing to take into account some material consideration. Alternatively, if it appears upon the facts that it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion even though the error may not be discoverable.[12]
[11] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[12] See also Dodds v Kennedy [2011] WASCA 32 [4].
In Norbis v Norbis[13] Mason and Deane JJ made the following comments elaborating on the principles set out in House:
Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.
The principles enunciated in House … were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision‑making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of such an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
[13] Norbis v Norbis (1986) 161 CLR 513, 518 ‑ 519.
In this appeal, it is not for me to adjudicate on the facts in dispute between the parties or rule on credibility matters in relation to the proceedings. It is for me to decide if the magistrate erred in coming to his primary decision on the applications. Mr Seymour must demonstrate the magistrate made some error in the exercise of his discretion.[14] There is no onus on Mrs Jaeger.
[14] Jones v Darkan Hotel [2014] WASCA 133 [31].
The decision of the magistrate the subject of this appeal was a discretionary judgment on practice and procedure. In a discretionary judgment on practice and procedure an appeal court should exercise special restraint before interfering.[15]
[15] Dodds v Kennedy [2011] WASCA 32 [5] and Morton Seed and Grain Pty Ltd v Corser and Corser [2006] WADC 90; (2006) 43 SR (WA) 182 [15].
The application to strike out the defence and enter judgment for Mr Seymour
Mr Seymour's application to strike out the defence was on the basis that it does not disclose any reasonable grounds of defence and was an abuse of the court's process.
The power for a magistrate to strike out all or part of a case statement arises pursuant to s 17 of the MCPPA. Section 17 of the MCPAA provides:
(1)The Court may strike out all or a part of a case statement if -
(a)any claim in it is outside the Court's jurisdiction; or
(b)it does not disclose any reasonable grounds for any claim, or for any defence, in it; or
(c)its purpose is to harass or annoy, or to cause delay or detriment, or is otherwise wrongful; or
(d)it is an abuse of the Court's process; or
(e)it is frivolous, vexatious, scandalous or improper.
(2)If the Court strikes out all of a case statement the Court may give judgment accordingly without a trial.
(3)the Court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.
Section 17 of the MCPPA empowers the court to strike out all or part of a case statement in any of the prescribed circumstances, and if all of the case statement is struck out, to give judgment without a trial. A case statement includes a party's defence.[16] A case statement is described as a statement of claim in the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR).[17]
[16] MCPPA s 3.
[17] MCCPR r 7A.
The principles to be applied in considering an application to strike out pleadings are well established: Kimberley Downs Pty Ltd v The State of Western Australia;[18] Mickelberg v 6PR Southern Cross Radio Pty Ltd;[19] Coxon v Wilson;[20] and Fazio v The City of Melville [No 2].[21]
[18] Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) (Staples M).
[19] Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270 [29].
[20] Coxon v Wilson [2016] WASCA 48 [13].
[21] Fazio v The City of Melville [No 2] [2013] WADC 147 [16].
The principles that are relevant in an application to strike out a defence can be summarised as follows:
(a)The power to strike out pleadings should only apply to cases which are not arguable.
(b)On the application, not only must all the facts alleged in the pleading be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable. No evidence is admissible, but the court may refer to documents mentioned in the pleadings.
(c)Great care must be exercised to ensure that the party is not improperly deprived of his or her opportunity to have a trial of his or her case by the appointed tribunal. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the party, that the pleadings should be struck out.
(d)The rules should not be reserved for those cases where argument is unnecessary to show the futility of the pleadings. Argument, even extensive argument, may be necessary to demonstrate that the pleadings are so clearly untenable that they cannot succeed.
(e)As a general rule a defendant is entitled, as of right, to have his or her case heard, to have the facts found and then to argue the question of law as they arise on the facts as found. It is only in cases in which it can be seen from the outset that there is no basis for the legal conclusion contended for by the defendant however the facts are found, that the pleadings should be struck out.
(f)A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie.
The magistrate in considering Mr Seymour's application considered these principles as set out in Hitchcock v Goldspan Investments Pty Ltd [No 3][22] and Pettit v Evolution Mining Ltd [No 2].[23]
[22] Hitchcock v Goldspan Investments Pty Ltd [No 3] [2015] WASC 277 [10] - [16].
[23] Pettit v Evolution Mining Ltd [No 2] [2017] WADC 68 [6] - [12], ts 70, 18 May 2018.
The magistrate in dismissing Mr Seymour's application gave the following reasons:[24]
I have to say and reminded myself that we are not a court of pleadings. I can see no basis upon which it could be sustained that the statement of defence in this case, especially the amended statement of defence with the particulars that were filed on 22 February, are offensive or inadequate in any way. I take the view that again, reminding myself of those general principles set out in section 13 of ensuring that the matter is dealt with justly, it seems to me that there is no basis upon which I can or should sensibly strike out the claim.
I also say this: the decision to strike out a claim with significant and serious consequences in many respects flies in the face of both parties receiving justice. One sees the thrust of case law that originates and develops in relation to those matters of default judgment type situation where a person is deprived of their opportunity to put their case, and, of course, to strike out a pleading in these circumstances and to give judgment for the claimant, in my view, deprives the defendant of an opportunity to put forth her case.
And when I can glean and establish those principles and factors of the defence so readily, I can see no proper basis to strike out the defence, and the application filed by the claimant in that regard is refused and dismissed.
[24] ts 70, 18 May 2018.
Mr Seymour's grounds of appeal in relation to his application to strike out the defence can be summarised as follows:
1.Error in describing the Magistrates Court as not a court of pleading (Document 1, par 1), (Document 2, pars 1 - 7 and par 10) (Ground 1).
2.Error in considering the prejudice to Mrs Jaeger if the defence was struck out as this was an irrelevant consideration (Document 1, par 2) (Ground 2).
3.Error of law by failure to consider the substance of the defence (Document 1, pars 4 - 5) (Ground 3).
4.Failure to consider Mrs Jaeger's failure to provide further and better particulars (Document 1, par 6) (Ground 4).
5.Failure to give adequate or proper reasons (Document 1, par 7) (Document 2, par 8) (Ground 5).
6.Failure to address the defence of illegality (Document 1, pars 8 ‑ 9) (Ground 6).
7.Failure to address the issue of estoppel (Document 1, par 10) (Ground 7).
8.Failure to consider Mr Seymour's submissions and authorities (Document 1, par 3, pars 7 - 8 and par 10) (Ground 8).
9.Denial of procedural fairness by raising issues without notice to Mr Seymour (Document 2, par 11) (Ground 9).
10.Bias and/or perceived bias of the magistrate (Document 2, par 12) (Ground 10).
Ground 1 (not a court of pleadings)
The magistrate in his reasons referred to Lexis Nexis, Civil Procedure Western Australia Magistrates Court at [1915.5] - [1915.20] in relation to procedure in Magistrates Court. A number of times he commented that the Magistrates Court is not a court of pleadings.[25] The full quote he cited from Lexis Nexis, Civil Procedure Western Australia Magistrates Court at [1915.5] is in the following terms:
However, a cautionary approach should be taken when applying these principles, given that the Magistrates Court is not a court of pleadings, although litigants should still never be taken by surprise and case statements have obvious features similar to pleadings.
[25] ts 70 and ts 71, hearing on 18 May 2018.
Mr Seymour submits that it was an error of law to describe the Magistrates Court as not a court of pleadings.
In my view the magistrate was correct to describe the Magistrates Court in that way. The Magistrates Court is a court of summary jurisdiction. There are substantial differences in practice and procedure between the Magistrates Court and other civil courts in Western Australia.[26] The MCPAA and MCCPR ensures that litigants should not be taken by surprise by requiring the parties to file statements of claim and defences. These documents may be similar to pleadings but are not actual pleadings.
[26] Titelius v Crowe [2017] WADC 116 [68] (Staude DCJ).
The functions of pleadings and particulars was summarised in Dare v Pulham.[27] The documents required to be filed by parties in the Magistrates Court achieve those same functions.
[27] Dare v Pulham [1982] HCA 70; 148 CLR 658, 664.
The defence filed by Mrs Jaeger that Mr Seymour sought to strike out identified for Mr Seymour what her defences were. Before January 2018, no defence had been filed by Mrs Jaeger in relation to the general claim proceedings in Bunbury Magistrates Court, now the subject of this appeal.
It is clear that whatever description is given to the MagistratesCourt, Mr Seymour was given notice of Mrs Jaeger's defences and the documents exchanged achieved their purpose.
This ground of appeal is dismissed.
Ground 2 (prejudice to the defendant)
Mr Seymour in his application effectively sought summary judgment on the basis that no defence was disclosed. In other words, he sought a determination without trial.
The magistrate considered the obvious consequence to Mrs Jaeger if her defence was struck out, that is, that she would be deprived of the opportunity to put her case.
The magistrate in his reasons properly considered and applied the principles I have set out in [30] - [32]. He found the defence filed by Mrs Jaeger was not offensive or inadequate in any way and established an arguable defence. The magistrate's comments about the impact of striking out Mrs Jaeger's defence is consistent with the principle I have referred to in [31](c).
This ground of appeal is dismissed.
Ground 3 (failure to consider the defence)
The magistrate in his reasons of 18 May 2018, after setting out the history of the various proceedings between the two parties and nature of the dispute, commented that he had read Mr Seymour's affidavits in support of the application with care and he described the defence as 'fulsome and detailed'.[28]
[28] Hearing 19 May 2018, page 63.
The magistrate summarised the substance of the dispute between the parties. He said the dispute concerned an alleged verbal contract, a dispute about whether the agreement (if it existed) may have involved legal work illegally carried out as Mr Seymour had no legal practice certificate.
My analysis of the transcript of the magistrate's reasons, indicates that the magistrate did consider the substance of the defences. The magistrate was entitled to assume that the facts alleged in the defence were true for the purpose of deciding whether there was an arguable defence.
There is no merit in this ground.
Ground 4 (failure to provide further and better particulars)
There is no merit in this ground. Both parties had requested further and better particulars from each other in relation to the statement of claim and defence. Some of the requests had not been answered.
Both parties have the right to make an application to the Magistrates Court for orders that the opposing party provide further and better particulars.[29] The fact that there were outstanding requests for further and better particulars is not a relevant consideration in deciding if a defence should be struck out. The relevant principles the court was required to consider I have summarised in [31].
[29] Rule 16(1)(n) MCCPR.
This ground of appeal is dismissed.
Ground 5 (failure to give adequate or proper reasons)
Section 31 of the MCA places limits on the requirement of a magistrate to provide reasons:
31.Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
In relation to the adequacy of reasons, in Velez Pty Ltd v Tudor[30] Murphy JA observed:
Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised … The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose …
[30] Velez Pty Ltd v Tudor [2011] WASCA 218.
In considering the magistrate's reasons, I give some weight to the fact that this was a decision on three interlocutory applications and the realities of work in a summary court described by Hall J in Manonai v Burns.[31]
[31] Manonai v Burns [2011] WASCA 165 [56].
In my view, the magistrate complied with the requirements in MCA s 31(1). The reasons were more than adequate for Mr Seymour to ascertain the basis for the decision and whether he had any grounds of appeal; and for me, sitting as the appeal court, to determine whether any errors of fact, law or discretion occurred.
This ground of appeal is dismissed.
Ground 6 (failure to address defence of illegality)
The magistrate's reasons of 18 May 2018 indicate he was fully aware that a defence relied upon by Mrs Jaeger in the defence filed was that if an agreement was entered into by the parties it was illegal and unenforceable as it was in contravention of the LPA.[32] This defence was clearly referred to in the defence filed by Mrs Jaeger.
[32] ts 63, 18 May 2018.
It is not suggested that Mr Seymour holds a legal practice certificate and is an Australian legal practitioner. The real issue is what, if anything was Mr Seymour engaged to do by Mrs Jaeger? Was there an agreement? If so, to do what? Ultimately, the issue of illegality insofar as it involved matters of fact would be determined on the evidence.
The magistrate's reasons in relation to the issue of illegality being raised as a defence were sufficient for the purpose of the application before him. In order for the magistrate to consider whether such a defence could be made out, credibility and factual findings would need to be made after considering the evidence of witnesses and exhibits tendered at the trial.
This ground of appeal is dismissed.
Ground 7 (failure to address issue estoppel)
Issue estoppel arises when in further litigation a state of fact or law is alleged or denied, the existence of which is a matter necessarily decided by a prior judgment or order.[33] The prior judgment or order must be final and conclusive on the merits, not interlocutory, but completely effective unless and until it is rescinded, altered or amended. It is nonetheless final, although it may be appealed against.[34] The parties are thereby precluded from contending to the contrary that which has been put in issue by them and solemnly found against them.[35]
[33] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
[34] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363.
[35] Blair v Curran (1939) 62 CLR 464, 531.
Issue estoppel does not arise in relation to Mr Seymour's application to strike out the defence. The proceedings Mr Seymour commenced in the Sydney Local Court were not determined on their merits. A permanent stay was ordered under s 20 of the Service and Execution of Process Act 1992 (Cth). The application was determined in chambers and the presiding magistrate found the appropriate court to determine Mr Seymour's claim was in Western Australia.[36] The order made by the magistrate in the Sydney Local Court was an interlocutory order only.
[36] Seymour v Jaeger [2017] NSWSC 25.
Mrs Jaeger is not estopped from raising any defences or counterclaims she raised in Sydney Local Court as these issues are not yet determined.
If by this ground Mr Seymour is raising the principle of estoppel by conduct as being a basis for which the defence should be struck out for the reasons I have set out in [100] - [101] there is no merit in this ground.
This ground of appeal is dismissed.
Ground 8 (failure to consider submissions and authorities)
Mr Seymour filed a number of detailed written submissions in the Magistrates Court and made oral submissions at the hearing before the magistrate on 20 April 2018. He also referred to a number of authorities in support of his submissions.
The magistrate in the hearings on 20 April 2018 and 18 May 2018 made it clear to the parties that he had taken into account the affidavits and submissions of both parties.
Pursuant to s 31(1)(b) and s 31(1)(d) the magistrate was not required to canvass all Mr Seymour's submissions and authorities in his reasons in disposing of the applications.
Mr Seymour referred to the New South Wales authority Wu v Zhao.[37] This authority relates to an appeal from a civil trial in the Local Court of New South Wales and not an interlocutory order. The authorities referred to relate to judicial findings where factual and credibility findings were required to be made at a trial, not interlocutory applications. The authorities relied upon were not apposite to Mr Seymour's case. As I have stated in pars 55 - 56, the magistrate's reasons indicated his process of reasoning for dismissing Mr Seymour's interlocutory application. The reasons do not have to respond to every issue raised by the parties.
[37] Wu v Zhao [2018] NSWSC 1182 [47] - [50].
This ground of appeal is dismissed.
Ground 9 (denial of procedural fairness)
In document 2 at pars 11(a) - 11(c) Mr Seymour submits that those issues the magistrate raised in his judgment resulted in him being denied procedural fairness as he was not given prior notice of these issues. I have dealt with these specific issues in dealing with grounds 1 and 8.
The principles of procedural fairness require that a party be given an opportunity to present their case and be heard. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[38]
[38] Waite v Hennah [2019] WASC 468 [79] - [80] (Smith J).
There is no merit in this ground. Mr Seymour was not 'ambushed'. He was given adequate opportunity to make written and oral submissions before the magistrate gave his decision and reasons in relation to Mr Seymour's application on 8 May 2018. There is no proper basis for a complaint by Mr Seymour that he was not given a fair hearing.
This ground of appeal is dismissed.
Ground 10 (bias and perceived bias)
Mr Seymour submits that the fact that the magistrate was biased is reflected in the overall decision and lack of adequate reasoning. He then gives a number of examples which he submits support this submission.
Mr Seymour refers to comments of different magistrates in other proceedings, evidential issues relating to the truthfulness of potential witnesses and comments by the magistrate urging Mr Seymour to obtain legal advice, amongst other things. Many of these matters do not relate to the applications and orders the subject of this appeal. None of these matters referred in document 2 pars 12(a) - 12(i) either individually or collectively support Mr Seymour's contention there was any bias exercised by the magistrate in dismissing Mr Seymour's application.
The principles for consideration as to whether there was actual bias shown by a judicial officer were referred to by Glancy DCJ in Xu v Griffiths [25] ‑ [27]:
The test for actual bias requires that the party alleging that bias exists show that the mind of the decision-maker was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Such an allegation must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507, [36], [69], [72] and [127].
Actual bias requires an inquiry into the actual thought processes of the decision-maker. It is the actual state of mind of the judicial officer which is in issue where bias is alleged: Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 [33] and [67].
Actual bias will exist where the decision-maker has prejudged the case against a party or acted with such partisanship or hostility as to show that the decision-maker had his or her mind made up against that party and was not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia [36] and [72].
There is nothing in the magistrate's conduct which could legitimately give rise to any reasonable apprehension that he was actually biased towards Mr Seymour or even any perception of bias towards Mr Seymour.
I am not satisfied that there was any error by the magistrate in his decision to dismiss Mr Seymour's application to strike out Mrs Jaeger's defence and enter judgment for Mr Seymour. A review of the transcript of the hearing and the magistrate's reasons indicate he correctly addressed the principles applicable to an application to strike out, addressed all matters relevant to the exercise of his discretion and gave reasons for his findings. He took into account and weighed all relevant matters before exercising his discretion in favour of Mrs Jaeger. He gave Mr Seymour ample opportunity to make oral submissions at the hearing. Mr Seymour would have had the magistrate exercise his discretion in a different manner, but his dissatisfaction does not ground an appeal.
This ground of appeal is dismissed.
Leave for the defendant to file a counterclaim
A party may make a counterclaim in civil proceedings in the approved form in the Magistrates Court pursuant to r 8(1) of the MCCPR. Leave will be required under the MCCPR if the counterclaim is not lodged with the defence.
Following the hearing on 7 December 2017 the magistrate made orders that Mr Seymour lodge and serve a statement of general procedure claim by 4.00 pm, 19 January 2018 and within 14 days of service Mrs Jaeger is to lodge and serve a statement of defence.[39]
[39] Orders 2 and 4 made by Magistrate Mahon on 7 December 2018.
The history of the pleadings in this matter is, the statement of general procedure claim was filed on 5 January 2018 and served on Mrs Jaeger's lawyer on 12 January 2018, the statement of defence was filed on 17 January 2018 and an amended defence filed on 22 February 2018. The application for leave to file a counterclaim was filed on 1 March 2018.
The magistrate, in considering the application by Mrs Jaeger for leave to file a counterclaim, considered the prejudice to Mr Seymour if the application was allowed and that the application had been made at an early stage in the proceedings. The magistrate was also aware of proceedings Mr Seymour had previously issued against Mrs Jaeger in New South Wales. He also considered the court's duties in s 13 of the MCCPA.
The magistrate ultimately decided that there would not be significant prejudice to Mr Seymour in allowing the application for leave to file a counterclaim at an early stage in the proceeding.
The application to file a counterclaim was filed within seven weeks after Mr Seymour served his statement of claim and within twelve weeks of the proceedings being ordered to proceed as a general procedure claim. The filing of the counterclaim did not comply with the time limits in the orders referred to in par 83 although there was no specific reference to counterclaims in the orders. At the point of time the application to file a counterclaim was filed, the proceedings had not been listed for trial and a pre-trial conference had not been held.
Mr Seymour's grounds of appeal in relation to Mrs Jaeger's application for leave to file a counterclaim can be summarised as follows:
1.Failure to consider Mr Seymour's written submissions and authorities (Document 1, par 12, Document 2, par 6) (Ground 1).
2.Failure to consider the counterclaim was filed out of time some weeks after the defence was filed (Document 1 pars 13 - 14 and par 21) (Ground 2).
3.Failure to address estoppel and unjust enrichment (Document 1, par 15) (Ground 3).
4.Error of law in considering the fairness to the defendant and no prejudice to the defendant (Document 1, pars 16 - 19) (Ground 4).
5.Error in considering the defendant may not pursue her cross claim (counterclaim) (Document 1, par 20) (Ground 5).
Ground 1 (failure to consider submissions and authorities)
There is no merit in this ground of appeal for the same reasons I have referred to in pars 68 - 69.
This ground of appeal is dismissed.
Ground 2 (failure to consider the delay in filing the counterclaim)
The application by Mrs Jaeger for leave to file a counterclaim was filed approximately seven weeks after the statement of general procedure claim by Mr Seymour was filed.
As at 1 March 2018 the proceedings had not been listed for pre-trial conference or trial. The proceedings had only been ordered to proceed as a general procedure claim on 7 December 2017.
Mrs Jaeger's lawyer Mr Morrison, was not her lawyer in the Sydney Local Court proceedings or in the appeal to the New South Wales Supreme Court. Mr Morrison started acting as lawyer for Mrs Jaeger on 17 October 2017.
In the affidavit sworn by Mrs Jaeger's lawyer in support of the application he stated:
Recently I came across the defence that had been filed in the New South Wales Local Court on behalf of the defendant. With assistance provided by that defence I prepared an Amended Statement of Defence for the purposes of these proceedings. In the course of doing so I noticed that the Local Court defence suggested duress on the part of the claimant. Accordingly I prepared a counterclaim alleging duress and making other claims.
Given the history I have referred to above, it cannot be stated the delay in Mrs Jaeger's filing the counterclaim was inordinate or substantial. The issues raised in the counterclaim were not new issues to Mr Seymour.
Given the proceedings had not been listed for trial, there was significant time for Mr Seymour to deal with the issues in the counterclaim even though there had been some delay in filing the counterclaim.
The magistrate was well aware of the history of the proceedings when he gave his reserved decision on 18 May 2018. He presided over two previous hearings on 7 December 2017 and 20 April 2018 in Bunbury Magistrates Court relating to these proceedings. Mr Seymour had provided him with a chronology of all the proceedings including the New South Wales proceedings as part of the materials Mr Seymour filed at the Magistrates Court.
In his reasons on 18 May 2018 the magistrate referred to the dates on which the statement of claim, defence and application for leave to file the counterclaim had been filed. He reminded himself that a purpose for filing these documents was to ensure no party was taken by surprise. He acknowledged the proceedings had not reached pre-trial conference. He described the application as being made at a comparatively early stage and the proceedings at early stages. He considered if the application was granted that no-one was going to get a surprise if the matter proceeded to trial. Given all these comments made by the magistrate, he clearly considered at what point in the proceedings the application was made, when granting leave to Mrs Jaeger to file the counterclaim.
This ground of appeal is dismissed.
Ground 3 (failure to address unjust enrichment and estoppel by conduct)
If Mr Seymour is relying on the issues of unjust enrichment or estoppel by conduct as part of any proposed reply to Mrs Jaeger's counterclaim he would need to file a reply. In Mr Seymour's submissions as to the issues of unjust enrichment and estoppel by conduct that may arise he refers to factual matters which would need to be the subject of evidence at the trial. It would have been premature for the magistrate to consider the issues of unjust enrichment and estoppel by conduct in relation to the behaviour of Mrs Jaeger when these issues were not pleaded.
I am satisfied there was no requirement for the magistrate to consider unjust enrichment or estoppel by conduct in considering Mrs Jaeger's application for leave to file a counterclaim, therefore there can be no error by the magistrate in failing to address those issues.
This ground of appeal is dismissed.
Ground 4 (error of law in considering fairness and prejudice to the defendant)
In considering Mrs Jaeger's application for leave to file the counterclaim, the magistrate took into account the prejudice to either party if he were to allow the application. Given that the function of a statement of claim, defence and counterclaim are similar to that of pleadings as I have referred to in pars 37 - 38, this was a relevant and important consideration.
The magistrate considered at what stage in the proceedings the application was made, the previous proceedings in New South Wales, whether Mr Seymour would be taken by surprise by the counterclaim, why the counterclaim was filed out of time and the duties of the court in s 13 of the MCCPA. Once he had considered those matters he came to the view that the prejudice to Mr Seymour was minor or as he described it 'no direct form of prejudice would be experienced by Mr Seymour'.
Whether it was described as fairness or prejudice to a party if the application was granted, this was the most relevant matter for the magistrate to consider in relation to the application. There was no error by the magistrate in taking into account the matter of prejudice or fairness to the parties.
This ground of appeal is dismissed.
Ground 5 (error in considering the defendant may not pursue her counterclaim)
On 18 May 2018 the magistrate made comment of his views as to whether Mrs Jaeger would pursue her counterclaim.[40] When these comments are read in context with what all the magistrate said on 18 May 2018, they do not relate to the considerations he took into account when deciding whether to grant leave for Mrs Jaeger to file the counterclaim. When the magistrate made these comments, he had already dealt with the application for leave to file the counterclaim. Most of these comments were made in the context of discussing further programming orders for the matter to proceed to trial.
[40] ts 82, ts 87 and ts 88, 18 May 2018.
The comments were made in relation to the magistrate's views as to whether the proceedings would proceed to trial and whether Mrs Jaeger's counterclaim would be pursued if Mr Seymour did not proceed with his claim. They were comments made after the magistrate had given his reasons and decision on the application for leave to file a counterclaim.
The magistrate's reasons for allowing the application to file the counterclaim were confined.[41] His comments about whether the defendant would pursue the counterclaim did not form part of those confined reasons.
[41] ts 72 - ts 74, 18 May 2018.
This ground of appeal is dismissed.
The defendant's application for security for costs
Mrs Jaeger had previously made an application for security for costs which was dismissed by the magistrate on 7 December 2017. The application made by Mrs Jaeger on 14 March 2018 was based on events that occurred since the dismissal on 7 December 2017 of Mrs Jaeger's previous application for security for costs.
The power of the Magistrates Court to order security for costs arises pursuant to Division 3 of the MCCPR. These rules were operational from 1 October 2016. The relevant rules that applied to this application were:
Term used: claimant
94AIn this Division -
Claimant includes a defendant counterclaiming in respect of a claim not arising out of the claim made against the defendant.
Factors that are not grounds for ordering security for costs
94BThe Court may order security for costs to be given by a claimant, but an order must not be made merely on account of the poverty of the claimant or the likely inability of the claimant to pay any costs which may be awarded against the claimant.
Grounds for ordering security for costs
94CWithout limiting rule 94B, the Court may order security for costs to be given by the claimant in the following circumstances -
(a)the claimant is ordinarily resident out of the jurisdiction, notwithstanding that the claimant may be temporarily within the jurisdiction;
(b)the claimant is about to depart from the jurisdiction;
(c)the claimant enjoys within the jurisdiction some privilege which renders the claimant immune, wholly or partially, from the normal processes of execution;
(d)the claimant is an undischarged bankrupt or a person who has suspended, or given notice of suspension of, debts;
(e)the claimant is a company in liquidation or under official management, or a company in respect of which a receiver of its property has been appointed;
(f)the claimant is a relator suing for the enforcement or declaration of some public right or to have some public trust carried out or some charitable scheme settled;
(g)the claimant is in default in respect of any costs ordered to be paid by the claimant in any proceedings previously brought by the claimant against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter;
(h)the claimant is a person who has in the past vexatiously brought litigation against the same defendant or against any other defendant;
(i)the claimant is suing the Sheriff in respect of anything done or omitted to be done by the Sheriff or the Sheriff's officers in the execution of any judgment of the Court.
Court has discretion
94D(1) The granting of security may be in the discretion of the
Court.
(2)In determining whether an order should be made, the Court may take the following into consideration -
(a)the prima facie merits of the claim;
(b)what property within the jurisdiction may be available to satisfy any order for costs against the claimant;
(c)whether the normal processes of the Court would be available within the jurisdiction for enforcement of any order for costs made against the claimant.
Manner of giving security
94EIn fixing security the Court may direct the form and manner in which the security is to be given and may from time to time vary the amount and form of the security.
It is clear from his reasons that in considering the application by Mrs Jaeger for a security for costs order against Mr Seymour the magistrate also considered the principles in s 13 and s 16 of the MCCPA.
The rules relating to security for costs in Magistrates Court referred to in par 111 mirror those of O 25 of the Rules of the Supreme Court 1971 (RSC). In those circumstances, cases involving the interpretation of O 25 RSC are relevant when the Magistrates Court considers an application for security for costs.
The magistrate considered the general principles for making an order for security for costs as set out by Edelman J in Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd,[42] Alfaro v Brokesova[43] and Westpac Banking Corporation v Ninan [No 3].[44] He acknowledged that Mr Seymour was not a corporate entity and therefore the provisions of s 1335(1) of the Corporations Act 2001 (Cth) did not directly apply.[45]
[42] Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57.
[43] Alfaro v Brokesova [2013] WASCA 38.
[44] Westpac Banking Corporation v Ninan [No 3] [2016] WASC 250.
[45] ts 78, 18 May 2018.
The magistrate relied upon an affidavit of Mr Morrison sworn on 14 March 2018, estimating costs from the date of the application until the completion of the trial at approximately $36,000.
The magistrate considered the following matters in exercising his discretion:
(a)The strength and bona fides of Mr Seymour's case. The magistrate was of the view that as the case involved a verbal contract and it was not an overwhelming case.[46]
(b)The likelihood of Mr Seymour being unable to pay Mrs Jaeger's costs if unsuccessful.[47]
(c)Whether granting the application would be oppressive to Mr Seymour.[48]
(d)In relation to the New South Wales proceedings between the parties, Mr Seymour had not paid to Mrs Jaeger the $7,500 costs ordered in those proceedings for a period of approximately 15 months.[49]
(e)Mr Seymour has no assets within Western Australia or significant or any assets available outside Western Australia.[50]
(f)There was a degree of impecuniosity on the part of Mr Seymour and this had not been caused by Mrs Jaeger.[51]
(g)The application had been brought promptly by Mrs Jaeger.[52]
(h)Mr Seymour is a pensioner who resided in New South Wales and had no connection to Western Australia.[53]
[46] ts 79, 18 May 2018.
[47] ts 79, 18 May 2018.
[48] ts 79, 18 May 2018.
[49] ts 79, 18 May 2018.
[50] ts 78, ts 79, 18 May 2018.
[51] ts 80, 18 May 2018.
[52] ts 82, 18 May 2018.
[53] ts 78, ts 79, 18 May 2018.
In the material filed by Mr Seymour in relation to the applications there was no dispute as to items (d), (e) and (h) in [117]. These matters were relevant grounds for the magistrate to consider pursuant to r 94C(a) and r 94C(g) of the MCCPR. The matters listed in r 94D(2) of the MCCPR for the court to consider when exercising its discretion are not exclusive or mandatory.
After considering the amount claimed by Mr Seymour in the proceedings, the previous interlocutory applications, the claim was now a general procedure claim, the costs estimate in the affidavit of Mr Morrison, the likely length of the trial, the complexity of the proceedings and what amount would not be oppressive to Mr Seymour proceeding with the claim the magistrate fixed an amount of $18,000 for security for costs.
Mr Seymour's grounds of appeal in relation to the security for costs order made against him can be summarised as follows:
1.The magistrate erred in ordering security for costs in the sum of $18,000 as it was oppressive (Document 1, par 21 and par 33) (Ground 1).
2.The magistrate erred in allowing a second application for security for costs by the defendant when the first application for security for costs was dismissed (Document 1, pars 23 - 25) (Ground 2).
3.The magistrate erred in failure to give adequate consideration to the delay in the making of the application (Document 1, pars 26 - 28) (Ground 3).
4.The magistrate erred in failing to have proper regard to r 94B and r 94D of the MCCPR (Document 1, pars 29 - 31) (Ground 4).
5.The magistrate erred in considering the plaintiff was either unable or unwilling to pay the New South Wales costs order made against him (Document 1, pars 34 - 35) (Ground 5).
6.The magistrate failed to give due regard to the authorities cited by the defendant (Document 1, par 37) (Ground 6).
Ground 1 (error in ordering security for costs in the sum of $18,000 as it was oppressive)
In this ground Mr Seymour submits the magistrate erred by ordering security for costs in the sum of $18,000 as it was oppressive as he was aware Mr Seymour was receiving an aged pension, resided in rented premises and had no real estate assets.
Oppression when raised in reply to an application for security for costs usually is an allegation that the application is brought for the purpose of shutting out the plaintiff from its claims.[54]
[54] Jaddcal Pty Ltd v Minson [No 2] [2011] WASC 138 [15] (Le Miere J).
When considering the history of this matter including the New South Wales proceedings, the defence and counterclaim filed, there is no basis for an inference that Mrs Jaeger's application was made for the purpose of shutting out Mr Seymour's claim.
Mr Seymour's financial position and the amount of the dispute were not the only matters the magistrate took into consideration in granting the application as I have referred to [117].
The magistrate in fixing the amount of security for costs to be ordered referred to the principles set in Crawley Investments Pty Ltd v Noble Group Ltd [No 2][55] and the court's duties pursuant to s 13 of the MCCPA.
[55] Crawley Investments Pty Ltd v Noble Group Ltd [No 2] [2015] WASC 16 [28].
The determination of the appropriate amount to be provided by way of security involves the exercise of the discretion by reference to matters of impression rather than mathematics.[56]
[56] Four Vanguard Services E Navagacao Lda v ENI Australia Ltd [2014] WASC 473 [4] and Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 [27].
Mr Morrison in his affidavit in support of Mrs Jaeger's application for security for costs suggested an amount of $36,000.
In consideration of all the factors referred to in [117] and [126] ‑ [127], it cannot be said that the amount of $18,000 was so oppressive or unreasonable in all the circumstances that the magistrate fell into error in setting an amount of $18,000.
This ground of appeal is dismissed.
Ground 2 (error in allowing a second application for security for costs)
Because the magistrate dismissed Mrs Jaeger's first application for security for costs on 2 December 2017, Mr Seymour submits the magistrate erred in allowing Mrs Jaeger's second application for security for costs.
The MCCPA and MCCPR do not limit the number of applications that a party can make for security for costs. An application for security for costs can be made at any time.
When the second application for security for costs was made by Mrs Jaeger, the circumstances were different to when the first application was made. The proceedings were no longer minor case proceedings. A statement of claim and defence had been filed by the parties. The $7,500 costs order made against Mr Seymour in the New South Wales proceedings had not been paid for a further four months.
Had the circumstances not changed when the second application for security for costs was made by Mrs Jaeger, the first decision on the first application in absence of an appeal would create an estoppel against a further application.
As the circumstances had changed, the magistrate did not fall into error in hearing the application. It was not 'a second bite of the cherry' as described by Mr Seymour.
This ground of appeal is dismissed.
Ground 3 (error in failure to consider delay)
An application for security for costs must be made promptly. The further a plaintiff has proceeded in an action and the greater the costs it has been allowed to incur without steps being taken to apply for an order for security for costs, the more difficult it will be to persuade the court that such an order is not, in the circumstances, unfair or oppressive.[57]
[57] Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497, 514.
For the reasons I have referred to in [83] - [85] and [91] - [94], it could not be suggested that there was any significant delay in Mrs Jaeger filing her second application for security for costs. As I have referred to in [117](g) the magistrate considered the application had been made promptly.
This ground of appeal is dismissed.
Ground 4 (failure to have proper regard to r 94B and 4 94D of the MCCPR
In this ground, Mr Seymour submits the magistrate erred in failing to have proper regard to r 94B and r 94D of the MCCPR. It is not submitted the magistrate had no regard to these rules.
In the magistrate's reasons for allowing the application for security for costs, he did not specifically mention the rules referred to in par 111. Those rules were referred to by Mr Seymour in his submissions dated 19 March 2018. Those rules mirror O 25 SCR. The magistrate in his reasons referred to authorities which set out the principles under O 25 SCR for making an order for security for costs.
Rule 94B of the MCCPR precludes an order for security for costs being made 'merely' on account of the poverty of the claimant or the likely inability of the claimant to pay any costs which may be awarded against the claimant. As I have identified in [117], the magistrate made the order for security for costs based on a combination of reasons. He did not breach r 94B of the MCCPR in making the security for costs order.
The reasons of the magistrate in making the order for security for costs clearly indicate that in exercising his discretion he did take into consideration the matters in r 94D(2)(a) and r 94D(2)(b) of the MCCPR.
This ground of appeal is dismissed.
Ground 5 (error in considering the plaintiff was either unable or unwilling to pay the New South Wales costs order made against him)
The magistrate in considering Mrs Jaeger's application for security for costs, gave some weight to the fact that Mr Seymour had not paid the $7,500 costs awarded to Mrs Jaeger in the New South Wales proceedings.
The costs order in New South Wales related to the same issue between the same parties, the subject of the proceedings before the magistrate in Bunbury Magistrates Court. Why the costs had not been paid by Mr Seymour may not have been a relevant consideration for the magistrate but the fact that the costs related to the same dispute were outstanding for 15 months was a highly relevant consideration for the magistrate to consider in determining whether to exercise his discretion to grant the application. Whether Mrs Jaeger had ever sought to enforce the costs order was an irrelevant consideration.
This ground of appeal is dismissed.
Ground 6 (failure to give due regard to the authorities cited by the defendant
There is no merit in this ground of appeal for the same reasons I have referred to in [67] - [69].
This ground of appeal is dismissed.
Conclusion
It has not been demonstrated by Mr Seymour that the magistrate erred in making the orders on the three applications the subject of the appeal. Accordingly, the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior10 FEBRUARY 2020
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