JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SIMONSEN -v- LEGGE [2018] WADC 4
CORAM: EATON DCJ
HEARD: 22 NOVEMBER 2017
DELIVERED : 18 JANUARY 2018
FILE NO/S: APP 50 of 2017
BETWEEN: MARK SIMONSEN
Appellant
AND
GEOFFREY LEGGE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE COCKRAM
File No :PERGSUM 17201 of 2003
Catchwords:
Appeal from the Magistrates Court - Apprehended and actual bias - The proper exercise of the appellate process
Legislation:
Magistrates Court (Civil Proceedings) Act 2004
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Respondent: In person
Solicitors:
Appellant: Not applicable
Respondent: Not applicable
Case(s) referred to in judgment(s):
Avsar v Binning [2009] WASCA 219
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260
Legge v Simonsen [2010] WADC 190
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
EATON DCJ: On 20 June 2017 the appellant filed a notice of appeal in this court seeking to overturn the decision of his Honour Magistrate Cockram delivered on 31 May 2017 in the Magistrates Court at Perth. In his published judgment the learned magistrate dismissed the appellant's claim against the respondent. The judgment followed a trial which occupied 8, 9 and 10 August 2016 and 18, 19 and 20 April 2017.
The appellant relies upon 9 grounds of appeal. The respondent seeks that the appeal be dismissed.
The appellant's grounds of appeal are as follows:
1.The Magistrate failed to take a balanced view of the claim based on the weight of the documentary evidence tendered by the claimant and was biased towards the claimant in the written decision.
2.The Magistrate erred and was wrong to exclude the defendants personal bank account statements which showed regular deposits for funds relating to partnership invoices and for amounts totalling $133,907.00 for the year of 2003 for monies relating to the partnership, when the defendant had stated emphatically that his only source of income was the proceeds of drawings from the partnership.
3.The Magistrate erred and was wrong to exclude the claimant's auditors report concerning invoices totals and expenditure and instead accepted the defendant's report for only cash received rather than actual invoice value and for expenditure not related to the partnership.
4.The Magistrate did not take into account any of the documents tendered by the appellant as evidence of the actual income and expenditure of the partnership where invoices matched certain deposits made into the defendant's personal bank account.
5.The Magistrate erred and was wrong in his…
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- AGLC
- Simonsen v Legge [2018] WADC 4
- Case
- [2018] WADC 4
- Decision Date
CaseChat Overview and Summary
The court examined the grounds of appeal, particularly focusing on whether the appellant was attempting to re-litigate issues that had already been determined by the magistrate. It was established that an appellate court can only intervene if there is a legal, factual, or discretionary error by the primary decision-maker. The court found that Simonsen's appeal was essentially a re-examination of the issues decided by the magistrate, which is not the role of an appellate court. The court also assessed whether there was any evidence of bias, either apprehended or actual, and concluded that there was no such evidence in the materials presented. The court further determined that the appeal was an abuse of process, as it involved invoking the court's process for an illegitimate purpose and was oppressive to the respondent.
In light of the findings, the court dismissed the appeal and noted that Simonsen's attempt to re-litigate issues before the appellate court was not permissible. The court emphasised that an appeal is not a means for a dissatisfied litigant to re-try issues that have already been decided by the primary court. Consequently, the appeal was dismissed, and no further orders were made.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As with previous grounds, ground 4 is no more than an attempt to re‑try the issues before the magistrate in this court. I appreciate that an appeal of this nature is by way of a re‑hearing. An appellate court hearing an appeal by way of a re‑hearing can exercise appellate power only if satisfied that there was some legal, factual or discretionary error on the part of the primary decision‑maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203; Legge v Simonsen [2010] WADC 190 [4]. The fact that a litigant is disappointed with the result in the court below does not mean that the appeal court is able to intervene: Avsar v Binning [2009] WASCA 219 [37]. My assessment of the appeal before me is that the appellant is a disgruntled litigant, unhappy with the decision of the court below and seeking, by using the appellate process, to, in effect, re‑agitate the various issues before the magistrate that were not favourable to him. The foregoing comments apply equally to ground 5 of his grounds of appeal. Ground 6 is a further allegation of actual bias. The appellant's reference in that ground to the magistrate's 'unbalanced reasoning' is no more than a manifestation of the appellant's unhappiness with the magistrate's decision. There is nothing in the materials before me, either in the judgment or the transcript of the trial, which would suggest, in terms of what the magistrate said and did, that he was biased. Whether the ground be asserting apprehended bias or actual bias, the ground is not made out. Grounds 7, 8 and 9 of the appeal are similar in nature to grounds 3 and 5. I regard the appellant's appeal to this court as being in the nature of an abuse of process. It is well established that at least one of three characteristics will be apparent in many cases of abuse of process, namely:(a)the court's process are being invoked for an illegitimate or collateral purpose;(b)the use of a court's procedures being unjustifiably oppressive to a party; or(c)the use of a court's procedures bringing the administration of justice into disrepute.(See Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 28(McHugh J); Batistatos v Roads and Traffic Authority(NSW) [2006] HCA 27; (2006) 226 CLR 256 [9] – [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ) and Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117 [10] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In my view there are elements of (a) and (b) above in the matter before me. The appeal is not a proper exercise of the appellate process and amounts to no more than a manifestation of the appellant's disappointment with the decision of the court below. As mentioned, the matter has a long history. The appellant commenced the action in the Local Court at Perth in 2003. In his written submissions of 11 September 2017 the respondent notes that the action had been commenced by the appellant in 2003 claiming relief as the result of the winding up of a partnership between the parties which existed for less than three months earlier that year.