Simonsen v Legge

Case [2011] WADC 164

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   SIMONSEN -v- LEGGE [2011] WADC 164

CORAM:   DAVIS DCJ

HEARD:   9 & 29 SEPTEMBER 2011

DELIVERED          :   7 OCTOBER 2011

FILE NO/S:   APP 35 of 2011

BETWEEN:   MARK JEFFREY SIMONSEN

Appellant

AND

GEOFFREY SPENCER LEGGE
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE BROMFIELD

File No  :PER 17201 of 2003

Catchwords:

Appeal from Magistrates Court - Unrepresented litigants - Procedural fairness - Further and better discovery

Legislation:

Magistrates Court (Civil Proceedings) Act 2004, s 16(1)(n), s 40

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):

Asvar v Binning [2009] WASCA 219

Cameron v Cole (1944) 68 CLR 571

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

Cranley v Medical Board of Western Australia (Unreported; WASC; Library No 8610; 27 November 1990)

Devereaux-Warnes v Hall [2006] WASCA 268

Fruehauf Finance Corp Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359

Integrated Management Services Pty Ltd v Inches (2009) 61 SR (WA) 114; [2009] WADC 41

Legge v Simonsen [2010] WADC 190

Lowry v Elliott [2009] WADC 193

Mulley & Marney v Manifold (1959) 103 CLR 341

Naidoo v Naidoo [2005] WADC 41

Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, 16 June 1986)

Smith v McCusker QC [2010] WASCA 55

Stead v State Government Insurance Commission (1986) 161 CLR 141

Tey v City of Gosnells [2010] WASC 96

Tobin v Dodd [2004] WASCA 288

Ventureaxess Capital Limited v RM Capital Limited [2005] WADC 128

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

  1. DAVIS DCJ:  In 2003 the appellant, Mark Simonsen and the respondent, Geoffrey Legge, were in partnership together for a short period of approximately three months, between late January or early February 2003 and 24 April 2003.  On 19 September 2003 Mr Simonsen commenced an action against Mr Legge in the Magistrates Court, case number 17201 of 2003, seeking monies said to be due and owing to Mr Simonsen by Mr Legge from the profits and assets of the partnership.  For various reasons the action in the Magistrates Court has drawn out for over eight years and is yet to be determined.

  2. On 18 April 2011 Mr Simonsen brought an application in the Magistrates Court seeking the following orders:

    1.that the defendant provides full accounting of the liabilities and profits of the partnership on a 50/50 basis to the claimant for the business partnership of AGE Automation within 28 days; and

    2.that the defendant provides discovery and disclosure for the business partnership of AGE Automation within 28 days pursuant to the claimant's affidavit annexed hereto.

  3. This application was heard before his Honour Magistrate Bromfield, on 9 May 2011.  His Honour dismissed Mr Simonsen's application.  Mr Simonsen…

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AGLC
Simonsen v Legge [2011] WADC 164
Case
[2011] WADC 164
Decision Date

CaseChat Overview and Summary

In this case, Simonsen v Legge, the appellant, Simonsen, appealed against the decision of the Magistrates Court to refuse his application for further and better discovery. Simonsen and Legge were former business partners who had dissolved their partnership. The dispute between the parties arose from their former business relationship, and Simonsen sought to recover damages from Legge for breaches of the partnership agreement. The legal issues in this case concerned the application of procedural fairness principles and the exercise of the court's discretion in relation to discovery orders. The court had to determine whether the Magistrates Court had erred in refusing Simonsen's application for further and better discovery, and whether the court could admit new evidence in the appeal.

The court found that the Magistrates Court had not erred in refusing Simonsen's application for further and better discovery. The court noted that the appeal was not merely another step in the litigation process, and that the court could only intervene if there was some legal, factual or discretionary error on the part of the primary decision-maker. The court found that Simonsen had not demonstrated any such error in the Magistrates Court's decision. The court also found that it was inappropriate to admit new evidence in the appeal, as the appeal was not being heard de novo. The court noted that the appeal was limited to the material and evidence that was before the Magistrates Court, and that leave to admit other evidence could only be granted in exceptional circumstances.

The court concluded that the appeal should be dismissed, and that the decision of the Magistrates Court should be upheld. The court found that Simonsen had not demonstrated any procedural unfairness in the Magistrates Court's decision, and that the court had exercised its discretion in relation to the discovery order appropriately. The court noted that the fact that Simonsen was disappointed with the result did not mean that the appeal court was able to intervene. The court found that there was no basis for the appeal court to interfere with the decision of the Magistrates Court.

The court made no orders as to costs.

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

This appeal is in the nature of a rehearing. An appellate court hearing an appeal by way of a rehearing can exercise its appellate powers only if satisfied 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) 203 CLR 194, 203; Legge & Simonsen [2010] WADC 190 [4]. The fact that a litigant is disappointed with the result does not mean that the appeal court is able to intervene: Asvar v Binning [2009] WASCA 219 [37]. Pursuant to s 40(4) of the Magistrates Court (Civil Proceedings) Act 2004 this court must decide Mr Simsonsen's appeal on:(a)the material and evidence that were before the Magistrates Court. In this case that was the Magistrates Court file for case number 17201 of 2003; and(b)any other evidence that it gives leave to be admitted. Leave may only be given to admit other evidence in exceptional circumstances: see s 40(5) of the Magistrates Court (Civil Proceedings) Act; Ventureaxess Capital Limited v RM Capital Limited [2005] WADC 128 [28] ‑ [30] (Schoombee DCJ). As was said by Martin CJ in Devereaux-Warnes v Hall [2006] WASCA 268 at [2], it is a mistake in principle to consider an appeal as merely another step in a serial process of litigation. Further, a provision like s 40(5) should not be used merely to allow a party to remedy a tactical decision that proved to have unforeseen and disadvantageous consequences, or to reinforce perceived weaknesses in a case already presented: Naidoo v Naidoo [2005] WADC 41 [9] (Eaton DCJ), referring to Cranley v Medical Board of Western Australia (Unreported; WASC; Library No 8610; 27 November 1990). Mr Simonsen has always been self represented. For some time Mr Legge was represented by solicitors, however, at the relevant time of Mr Simonsen's application, the subject of this appeal, and also at the appeal hearing before me, Mr Legge was unrepresented. I have prepared a chronology of the papers on the Magistrates Court file in the action, case number 17201 of 2003. That chronology is annexed to these reasons for decision (Annexure 1). Relevant to the application which was before the magistrate, the appeal before me and the issue of discovery, before Mr Simonsen made his application of 18 April 2011:1.Mr Legge filed an affidavit of discovery on 29 April 2004;2.Soon after this was filed, Mr Simonsen filed a request for discovery entitled 'discovery of documents' on 17 May 2004. I have interpreted this as a request for further and better discovery from Mr Legge; and3.Mr Simonsen brought two applications for summary judgment, one dated 19 January 2004 and the other dated 11 November 2005. From his affidavits sworn in support of these applications it is apparent that he has a number of documents relevant to the partnership business including copies of bank statements and invoices. During the course of the hearing of this appeal the parties referred to documents which were not among those in the Magistrates Court file for this case, case number 17201 of 2003 ('the 2003 action'). There were other proceedings commenced by Mr Simonsen against Mr Legge in the Magistrates Court, case number 12071 of 2008 ('the 2008 action'). In the 2008 action Mr Simonsen had claimed exactly the same relief as he claimed in the 2003 action. The issue of discovery also arose in the 2008 action, with orders having been made for discovery and then subsequently default judgment entered in favour of Mr Simonsen against Mr Legge on 23 February 2009. That judgment was the subject of an appeal in this Court, appeal number 25 of 2009. I have had the benefit of reading the decision of Sleight DCJ allowing that appeal and setting aside that default judgment in Legge v Simonsen [2010] WADC 190.