Shaefer v Foundation Housing Ltd
[2017] WASCA 117
•22 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SHAEFER -v- FOUNDATION HOUSING LTD [2017] WASCA 117
CORAM: MURPHY JA
MITCHELL JA
HEARD: 22 JUNE 2017
DELIVERED : 22 JUNE 2017
PUBLISHED : 22 JUNE 2017
FILE NO/S: CACV 47 of 2017
BETWEEN: ERIC JOSEPH SHAEFER
Appellant
AND
FOUNDATION HOUSING LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :APP 105 of 2016
Catchwords:
Practice and procedure - Application to transfer matter from Perth Magistrates Court to Fremantle Magistrates Court - Whether appeal has reasonable prospect of success
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 22
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
Cording v Trembath [1921] VLR 163
House v The King (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Schaefer v Gregory [2015] WASCA 222
REASONS OF THE COURT: On 22 June 2017, we heard from the appellant on a Registrar's notice to attend to show cause why his appeal should not be dismissed pursuant to r 43(2)(g)(i) and (ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA). At the conclusion of that hearing we made an order dismissing the appeal. We indicated that we would publish written reasons for that order at a later time. These are our reasons for dismissing this appeal.
Background
In March 2015, the appellant brought civil proceedings against the chief executive officer of the respondent in the Magistrates Court of Western Australia. A General Procedure Claim (form 3) was lodged in the Perth registry of the Magistrates Court, claiming approximately $11,000 in overpaid rent. The respondent was subsequently substituted as a defendant.[1]
[1] See Schaefer v Gregory [2015] WASCA 222.
On 18 April 2016, a registrar of the Magistrates Court issued a fee request for allocation of a hearing date for the appellant's claim in the amount of $339.
On 27 April 2016, the appellant applied for a 'transfer of case to Fremantle Magistrates Court'. The effect of the appellant's affidavit filed in support of that application was that staff at the Perth registry 'stood firm on charging the fees', and his experience was that staff at the Fremantle registry had given him fee waivers in the past.
A trial of the appellant's claim, which had been listed for 19 July 2016, was vacated due to non‑payment of the hearing fee. The trial was re‑listed for 20 September 2016. A new request for payment of a hearing fee of $377 was issued on 5 July 2016. The trial date was again vacated when the hearing fee was not paid. On 26 August 2016, the respondent applied for the matter to be struck out.
On 23 November 2016, a magistrate gave reasons for refusing to transfer the proceedings to Fremantle. The magistrate said that there was no evidence that it would be cheaper or more cost effective for the appellant to have his matter dealt with in Fremantle. Her Honour said that the issue of trial fees was not determinative of where the matter should remain. Her Honour concluded that it was appropriate that the matter remain in Perth, where it had proceeded and was convenient for the parties to attend. The magistrate concluded that there was 'no evidence before the Court as to why the matter should not remain in Perth, and so it should remain in Perth'.
The magistrate made orders that the trial be relisted on a date to be fixed by a registrar, but would be vacated if the hearing fee was not paid within 7 days of the appellant receiving advice of the same from the court. The magistrate did not grant the respondent's application to strike out the claim, but gave the respondent liberty to apply for default judgment if the trial date was again vacated. It was implicit in these orders that the appellant's application for transfer to Fremantle was refused.
The appellant then purported to appeal to the District Court of Western Australia against the Magistrate's refusal to transfer the proceedings to Fremantle. That appeal was purportedly made under s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004 (WA). That section provides that a party to a case that is not a minor case may appeal to the District Court against any order made by the Magistrates Court in the course of proceedings in the case.
The appellant's sole ground of appeal to the District Court was:
Appellant claims right to access Fremantle application for fee concession.
On 5 April 2017, the primary judge dismissed the appeal to the District Court. In essence, the primary judge found there was nothing to indicate that the magistrate erred in her decision.
The appellant now appeals to this court against the primary judge's decision to dismiss his appeal to the District Court. Section 42(1) of the Magistrates Court (Civil Proceedings) Act provides that:
A party to an appeal made to the District Court under section 40 may appeal to the Court of Appeal against the District Court's judgment on the appeal.
Legislation
The Magistrates Court is established by s 4 of the Magistrates Court Act 2004 (WA), and exercises its civil jurisdiction throughout the State. Section 8(1) of that Act provides that, within the State, the Magistrates Court:
1.has registries at such places as the Attorney General decides;
2.is to sit in places where it has a registry at such times as the Chief Magistrate decides; and
3.may sit or otherwise exercise its jurisdiction at any time and place.
Subject to presently immaterial exceptions, r 95 and r 96 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) enable an originating claim to be lodged at any registry of the Magistrates Court. In this case, the appellant chose to lodge his originating process in the Perth registry of the Magistrates Court.
Section 22(1) of the Magistrates Court (Civil Proceedings) Act authorises the Magistrates Court to order that the whole or a part of the proceedings in a case be conducted at another place in the State where the court is satisfied that 'it would be more convenient, or fair, to the parties' to do so. Section 22(4) of that Act provides that a decision made under s 22(1) by the Court constituted by a magistrate cannot be appealed.
As at the date of the magistrate's determination, the following provisions of the Magistrates Court (Fees) Regulations 2005 (WA), which came into force on 4 July 2016, had replaced an earlier regime for fee reduction and waiver. Prior to 4 July 2016, a registrar had a discretion to waive or reduce fees for allocation of a hearing date in a particular case for financial hardship or if it was in the interests of justice to do so. However, as at the date of the magistrate's decision, reg 4, read with item 5(b) of Sch 1 Div 2 to those Regulations, prescribed a fee for the allocation of a hearing date of 1 day for a claim between $10,000 and $50,000 in the amount of $377 for an individual or $113 for an 'eligible individual'. Regulation 8 defines who is an eligible individual, in a manner which includes a person who is the holder of specified cards issued by Centrelink. Regulation 8(2)(f) and reg 9B(1)(b) provide for the court or registrar to direct that a person is an eligible individual if satisfied that the person should be required to pay only an eligible individual fee by reason of financial hardship and/or the interests of justice. Regulation 10 provides that the fee must be paid immediately after the Court determines the number of days to be allocated for the hearing. Regulation 13(1) provides that:
If a question arises as to the fee payable or applicable in a particular case, that question is to be determined by the Principal Registrar of the Court.
The appeal to this court
The appellant, who is self‑represented, advances 5 grounds of appeal in this court. It is unnecessary to set them out in these reasons. Essentially, the appellant submits that the primary judge erred in fact and law in dismissing his appeal to the District Court.
The appellant submits that the grounds on which a change of venue will be ordered include the balance of convenience and the possibility that a fair trial cannot be had in the chosen venue.[2] He submits that a plaintiff has a prima facie right 'by his or her endorsement to fix the venue' and that 'a defendant who wishes to change it must establish grounds for a change of venue'.[3]
[2] See the amended Legal Authorities which was received as exhibit A in the appeal.
[3] Citing Cording v Trembath [1921] VLR 163, 166 - 167.
The magistrate's decision under s 22(1) of the Magistrates Court (Civil Proceedings) Act was a discretionary decision. It is well established that an appellate court may not substitute its own opinion for that of a primary judicial officer merely because the appellate court would have exercised its discretion in a manner different from the primary judicial officer. If an appeal is to succeed then it must be shown that the primary judicial officer made a material error of fact or law. If express error is not apparent, the appellate court may infer that there has been a failure to properly exercise the discretion from a decision which is plainly unjust or unreasonable.[4]
[4] See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v The King (1936) 55 CLR 499.
Nothing in the material which the appellant seeks to advance in this appeal is capable of calling into question the exercise of the magistrate's discretion to refuse to transfer the proceedings. The material before the magistrate provided no grounds for her Honour to be satisfied that it would be more convenient, or fair, to the parties to transfer the proceedings to Fremantle. The only matter raised by the appellant - a prospect of obtaining a more favourable outcome in relation to fee waiver - did not justify a transfer of the proceedings. While the Magistrate's Court has different registries, it is a single court. The legal principles on which fees are to be determined do not vary between registries. Any dispute as to the applicable fee is to be determined, on application, by the Principal Registrar regardless of the registry in which it arises. Differences in the manner in which staff of different registries may deal with fees, if established, would not justify a transfer of proceedings to another registry under s 22(1) of the Magistrates Court (Civil Proceedings) Act.
The magistrate dealt with the transfer application in a manner which was consistent with the requirements of s 22 of the Magistrate's Court (Civil Proceedings) Act. Her Honour's decision was plainly correct. The appellant's appeal to this court must inevitably fail for that reason.
We also note that it is strongly arguable that s 22(4) of the Magistrates Court (Civil Proceedings) Act excluded any right of appeal to the District Court, under s 40 of that Act, in respect of the magistrate's decision. That would be on the basis that the reference, in s 22(4), to a 'decision made under' s 22(1) comprehends a refusal to order a change of venue as well as the making of such an order. However, this issue was not considered by the primary judge, and we have not received submissions in relation to it. Given that the appeal to this court must inevitably fail on its merits, it is unnecessary for us to decide whether the appeal to the District Court was incompetent.
For these reasons, the appeal was dismissed on the ground that none of the appellant's grounds of appeal has a reasonable prospect of succeeding.
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