Simonsen v Legge - [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

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.
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.
This application was heard before his Honour Magistrate Bromfield, on 9 May 2011. His Honour dismissed Mr Simonsen's application. Mr Simonsen appealed from this decision. I must determine whether Magistrate Bromfield erred in the dismissal of the application.

The nature of this appeal

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).

The materials in this appeal

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; and
3.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.
The reason why Mr Simonsen commenced the 2008 action appears to be because of Mr Legge's bankruptcy. Both Mr Simonsen and Mr Legge advised me and I have accepted that Mr Legge was able to obtain an order for an annulment of his bankruptcy. As a result of Mr Legge's bankruptcy being set aside, Mr Simonsen believed he had to commence fresh proceedings in the Magistrates Court. In April this year the 2008 action was ordered to be discontinued. Shortly after this Mr Simonsen re‑activated the proceedings in the 2003 action by filing his application dated 18 April 2011.
The discovery sought by Mr Simonsen from Mr Legge in the 2003 action, as set out in the affidavit accompanying Mr Simonsen's application of 18 April 2011, was as follows:
(a)Copies of all deposit slips for the bank account of AGE Automation;
(b)Cheque butts and/or all documents for details of payments made for cheques issued on the bank account of AGE Automation including details of payee and for what purpose payment made;
(c)All documents and/or receipts for all expenditure incurred against the bank account of the AGE Automation partnership;
(d)Copies of all supply invoices and receipts of AGE Automation;
(e)Copies of all cash receipts for business expenditure incurred;
(f)Document details of stock purchased and sold to customers;
(g)Document details of stock‑on‑hand ('opening stock') as at 30 January 2003;
(h)Document details of stock‑on‑hand ('closing stock') as at 30 June 2003;
(i)Document details of all customer sales contract installation files;
(j)Payment details for the balance of payment invoices for 'deposit' invoices number 2315, 2317, 2319, 2320, 2357, 2358 and 2381;
(k)Documents and receipts details relating to expenditures listed in the bundle of documents spreadsheets filed and annexed as 'MJS‑7' relating to expenditure details under 'internet transfers - partner drawings' from 17 February 2003 to 25 July 2003;
(l)Documents and receipts details relating to expenditures listed in the bundle of documents spreadsheets filed and annexed as 'MJS‑7' relating to expenditure details under 'internet electronic funds transfers' from 12 February 2003 to 25 July 2003;
(m)Documents and receipts details relating to expenditures listed in the bundle of documents spreadsheets filed and annexed as 'MJS‑7' relating to expenditure details under 'ATM and EFTPOS transactions' from 17 February 2003 to 23 April 2003; and
(n)Documents and receipt details relating to expenditures listed in the bundle of documents filed and annexed as 'MJS‑7' relating to expenditure details under 'Cheque Payment Transactions' from 18 February 2003 until 3 June 2003.
Mr Simonsen in his affidavit deposed to no other matter other than to say that he requested 'discovery and disclosure' of these items, and the following:
4.Provide all documents and or receipts relating to expenditure details including loan documentation as detailed above in paragraphs relating to the partnership and bank account of AGE Automation.
5.The defendant to list all documents provided by the claimant in relation to this matter including the bundle of documents filed by the claimant and dated the 26^th September 2008.'.
I queried what was meant by the bundle of documents said to have been filed and the annexure 'MJS‑7' referred to in items (k) to (n). Such a bundle or annexure was not attached to Mr Simonsen's affidavit. Mr Simonsen advised that he had filed a bundle of documents containing 'MJS‑7' in both actions, the 2003 and the 2008 action. Mr Legge also made submissions on the basis of matters he believed had been filed in the 2003 action. However, from my review of the Magistrates Court file there was no bundle of documents filed by Mr Simonsen or any document marked 'MJS‑7'.
After the appeal hearing on 9 September 2011 and following correspondence received from Mr Simonsen, I again checked the documents on the Magistrates Court file for the 2003 action, called for the District Court file relating to Sleight DCJ's decision in Legge v Simonsen (appeal number 25 of 2009) and also called for a further hearing with both parties. At that further hearing it was established that 'MJS-7' is a spreadsheet entitled 'Calculation of Profit Distribution' prepared by Mr Simonsen's accountant for the purpose of the litigation with Mr Legge, and that the bundle of documents containing 'MJS-7' was filed only in the 2008 action.
In his decision in Legge v Simonsen Sleight DCJ observed that there had been confusion by the parties, who were both then unrepresented litigants, as to what orders had been made and whether or not discovery had been provided. Confusion has also arisen in this case in respect to what documents have been filed in the 2003 action with the parties assuming, Mr Simonsen in particular, that the documents filed in the 2008 action form part of the 2003 action.
As the bundle of documents containing 'MJS-7' was filed only in the 2008 action, the magistrate did not have that before him at the hearing of Mr Simonsen's application on 9 May 2011. At the further hearing of this appeal I called on each of the parties to address me on whether the circumstances relating to the document 'MJS-7' are exceptional and whether I should admit 'MJS-7' as evidence in this appeal, pursuant to s 40(5) of the Magistrates Court (Civil Proceedings) Act. Mr Simonsen urged me to do so; Mr Legge opposed this.
Even allowing for the fact that both parties are unrepresented, I am not satisfied that exceptional circumstances exist to allow me to admit 'MJS-7' as evidence in this appeal. In the circumstances of this appeal, including that it is one from an interlocutory order, I consider that it should only be determined on the materials which were before the magistrate.

Mr Simonsen's grounds of appeal

In the appeal notice filed by Mr Simonsen his grounds of appeal were as follows:
1.The appellant filed an application (form 23) in the Perth Magistrates Court (civil jurisdiction) and dated 18 April 2011, seeking certain orders to assist in progressing the matter in respect to the former business partnership of AGE Automation ('AGE') a fifty‑fifty partnership between the appellant and the respondent.
2.Pursuant to the application the appellant was seeking an order that the respondent provides full accounting of the partnership's liabilities, profits & loss and valid business expenditure of the partnership. This order was sought on the basis of the respondents legal obligation to account to me for the business partnership pursuant to sections 39 and 40 of the Partnership Act 1895 (WA).
3.Pursuant to the application the appellant was seeking a further order that the respondent provide full and specific discovery and disclosure relating to the former business partnership and in accordance with the attached affidavit to the application outlining the list of documents that were sought.
4.As a result of his Honour dismissing the application, his Honour has effectively denied me procedural fairness and natural justice in the matter, when the matter could and should be resolved by the respondent accounting to me in respect to the fifty‑fifty business partnership and by also providing me with discovery and disclosure pursuant to my affidavit of the list of documents sought.
In the appeal hearing before me Mr Simonsen agreed that the first three grounds of appeal are really background information only. The basis of his appeal is as set out in par 4. This does not address the merits of the decision by the magistrate and provides no detail of how it is said that the magistrate erred either in law or fact. I have taken into account that Mr Simonsen is a self‑represented litigant and I need to determine whether, notwithstanding poorly expressed grounds, there is merit in this ground of appeal: Tobin v Dodd [2004] WASCA 288 [13] ‑ [18].
In light of submissions made by Mr Simonsen during the appeal hearing it appears that he claims two matters:
1.He was not given the opportunity to advance any argument in the hearing before the magistrate on 9 May 2011. I construe this as a ground raising a denial of procedural fairness, one of the requirements of the principle of natural justice; and
2.The magistrate erred in fact and law in refusing the discovery application given the relevance of these documents to the primary relief sought.
Mr Simonsen also agreed in the hearing before me that in his original application dated 18 April 2011 the first order sought for the accounting was really the primary relief claimed in the action, as he is claiming 50% of the profits and assets of the partnership. The only matter in issue on this appeal was the application for discovery.

Procedural fairness

It is a fundamental principle of natural justice, applicable to all courts in criminal trials, civil trials and interlocutory applications, that a person must be given a reasonable opportunity to present his or her case: Cameron v Cole (1944) 68 CLR 571, 589 (Rich J).
Whether or not there has been a denial of natural justice in the course of any hearing must be assessed by reference to the application and the manner in which the hearing was conducted. Sleight DCJ summarised this in Lowry v Elliott [2009] WADC 193 [17]:
The principles of natural justice are flexible. In broad terms they require a fairness to the parties which includes the right of both parties to have a reasonable opportunity to present their case and be heard. When assessing whether fairness has been accorded it is relevant to take into account the function the court was performing and the statutory principles governing its exercise.
As was stated by the Court of Appeal in Smith v McCusker QC [2010] WASCA 55 [51] and [52], there is a common law tradition of oral hearings and the general requirement of procedural fairness (and actual justice) is that no order adverse to a party's interest should be made without the party first having an opportunity to be heard.
I have read the transcript of the hearing which took place before Magistrate Bromfield on 9 May 2011. The first difficulty which arose during the hearing was that Mr Simonsen referred, as he did in this appeal, to orders for discovery which were made in 2008. He was, of course, referring to the discovery orders made in the 2008 action, the default judgment which was entered against Mr Legge and Mr Legge's successful appeal from that decision: Legge v Simonsen. Although Mr Simonsen explained that the matter was to do with the 2008 action, it is apparent that he was under a misunderstanding, as he was in this appeal, that the magistrate could take into account those matters in the application before him. His Honour observed that what he had before him were proceedings number 17201 of 2003 (the 2003 action). Mr Simonsen then put to his Honour, again based on the misunderstanding I have mentioned, that there had been an order for discovery made in 2008. His Honour quite understandably, given the actual documents on the file before him (as set out in Annexure 1), expressed some difficulty with the proposition put by Mr Simonsen that an order for discovery had been made in 2008. Eventually Mr Simonsen confirmed that the order for discovery was made in the 2008 action.
It is also apparent from the transcript that Mr Simonsen attended the court without all necessary documents. His Honour, with the benefit of the Magistrates Court file, was aware that an order for discovery had been made on 27 October 2003. Mr Simonsen said he was not aware of that order, and did not have that information. Mr Simonsen could also not recall having made an application seeking enforcement of the order for discovery.
The magistrate then asked Mr Simonsen to clarify what provision in the Magistrates Court (Civil Proceedings) Act or Rules he was relying on to seek the orders. Mr Simonsen could not tell him, nor could Mr Simonsen explain why he was now seeking discovery again and why he did not, in his affidavit in support of the application, refer to the earlier orders that had been made.
The following exchange took place:
HIS HONOUR:    What of the affidavit of discovery of the defendant dated 28 April 2004, lodged with the court on 29 April?
SIMONSEN, MR: I've got no idea, your Honour.
HIS HONOUR:    No idea about what?
SIMONSEN, MR: Well, what you're referring to. I'm not familiar with that affidavit. Like I said, I don't have that information.
HIS HONOUR:    You've already obtained [an] order for discovery, obtained an order for enforcement of the order for discovery and there is already lodged with the court, although filed in the local court and now in this court, so there's a detailed affidavit of discovery already lodged with the court.
SIMONSEN, MR: Okay, well, if that's the case, then I'll probably need to get a copy of that, but the thing is, is I'll still need disclosure, your Honour.
HIS HONOUR:    What do you contemplate [an] affidavit of discovery does?
SIMONSEN, MR: Well, all that does is identify the documents. It doesn't disclose the actual document. The thing is, is I believe that I need disclosure of the actual documents as part of the accounting process.
HIS HONOUR:    Just be seated.
SIMONSEN, MR: Thank you.
HIS HONOUR:    Have you made a request pursuant to rule 33 subrule (1)?
SIMONSEN, MR: A request? What does that particular rule refer to, your Honour?
HIS HONOUR:    'If a party wants to inspect documents disclosed by another party, it must serve the other party with a written request to inspect.'
SIMONSEN, MR: No, your Honour, because at the end of the day both myself and Mr Legge are self‑represented, your Honour, so there's no really - - -
HIS HONOUR:    That doesn't change your obligation to comply with the rules of court.
SIMONSEN, MR: Well, the thing about it is, is where do I inspect the document?
HIS HONOUR:    Perhaps if you read the obligations cast on the other party contained in the other subrules, you would become aware as to how the process worked and the rules are available for all litigants through the registry.
SIMONSEN, MR: That's fine, your Honour. Effectively, I would just be seeking the disclosure of the actual documents.
HIS HONOUR:    You talk about disclosure of them, or are you talking about the ability to inspect them?
SIMONSEN, MR: Well, I think disclosure would probably be more appropriate, your Honour.
HIS HONOUR:    The disclosure is contained in the affidavit of discovery.
SIMONSEN, MR: Mm'hm.
HIS HONOUR:    The inspection is regulated now by rule 33 of the Magistrates Court Civil Proceedings rule. You already have discovery disclosure.
SIMONSEN, MR: Can I have a current return date, then, your Honour?
HIS HONOUR:    A return date for what?
SIMONSEN, MR: For the discovery to be completed.
HIS HONOUR:    Are we now confusing again the difference between disclosure or discovery and inspection?
SIMONSEN, MR: No, I wouldn't think so, your Honour. All I'm saying is I would anticipate that that - - -
HIS HONOUR:    Well, if you haven't made a request to inspect - ‑ ‑
SIMONSEN, MR: Mm'hm. Okay.
HIS HONOUR:    - - - the other party is under no obligation to provide you with the opportunity to inspect the documents. Do you ‑ ‑ ‑
SIMONSEN, MR: Okay, sir.
HIS HONOUR:    It's something like the horse goes in front of the cart.
SIMONSEN, MR: Okay. So what you're saying is I should make an ‑ ‑ ‑
HIS HONOUR:    It's not for the court to give you advice. If you don't know what you ought do, you ought seek appropriate advice.
SIMONSEN, MR: Okay. I'll rephrase that, your Honour. What you're suggesting is ‑ ‑ ‑
HIS HONOUR:    I'm not suggesting anything.
SIMONSEN, MR: Okay.
HIS HONOUR:    I made observations about provisions contained in the rules.
SIMONSEN, MR: What you're saying is, inspection of documents within a certain timeframe. Am I able to make that application verbally, or do I need to file it?
HIS HONOUR:    I've read the rule. I'll read it to you again and invite you to listen carefully. 'If the party wants to inspect documents disclosed by another party, it must serve the other party with a written request to inspect.'
SIMONSEN, MR: Okay.
HIS HONOUR:    Now, it's self‑explanatory, isn't it?
SIMONSEN, MR: Yes.

There then followed a discussion about the first order in the application sought by Mr Simonsen. Mr Legge was then given an opportunity to address the magistrate, during which he explained that after Mr Simonsen's request of 17 May 2004 asking for further and better discovery, he had advised his lawyers that everything he had in his possession had been supplied to his lawyers. Mr Legge explained, as set out in his affidavit sworn 28 April 2011, that the documents sought by Mr Simonsen had either been supplied by him to the court (in other words, were in Mr Simonsen's possession) or seized by the police. After hearing from Mr Legge the magistrate then addressed Mr Simonsen again:
HIS HONOUR:    Could you stand up, Mr Simonsen?
SIMONSEN, MR: Yes, your Honour.
HIS HONOUR:    You've already obtained an order of discovery. There is already evidence of discovery having been given ‑ ‑ ‑
SIMONSEN, MR: Mm'hm. If I may add to that, your Honour, though?
HIS HONOUR:    If you may give me the courtesy of finishing what I'm going to say to you without your interruption - it's therefore difficult to understand why you're seeking the second of the two orders that you are seeking today in that format, and your affidavit doesn't indicate on what basis you assert that there are other documents in the possession of the defendant beyond that which he has already previously discovered.
The first of the two orders seem to be intricately related to this proposed substituted statement of claim. You haven't obtained an order pursuant to section 16(1)(m) of a Magistrates Court (Civil Proceedings) Act permitting you to amend your case statement. The document, yes, you got it through the door and it's on the court file but it's not of any effect. Do you understand what I'm saying?
SIMONSEN, MR: I do, your Honour.
HIS HONOUR:    For those reasons, this application will be dismissed.
SIMONSEN, MR: If I may, your Honour, the original discovery order that you refer to does not cover all the documents that I seek as per my discovery affidavit as per today's application. In fact, from what I understand from Mr Legge's former solicitor, Lawton Gillon ‑ ‑ ‑
HIS HONOUR:    Where have you said this in your affidavit?
SIMONSEN, MR: Well, the thing about this, your Honour, I didn't because it has only been raised today, but what I'm saying is, is that ‑ ‑ ‑
HIS HONOUR:    It was inevitably going to be raised today given that you've already got and had disclosure of document.
SIMONSEN, MR: Yes, but what I'm saying is, is that Lawton Gillon just had basic receipts. It doesn't cover a lot of the other items on my discovery list that I've specifically laid out, so what I'm saying, your Honour, is that possibly the discovery order that had been made be amended to cover specific discovery as per my list.
HIS HONOUR:    If there was evidence lodged by you to suggest that these documents existed, and there is none ‑ ‑ ‑
SIMONSEN, MR: Well, it's obvious it's a partnership, your Honour. They'd have to exist.
HIS HONOUR:    It's not obvious to me because there is no evidentiary material to suggest that they do.
SIMONSEN, MR: Seeing that I was one half of the partnership, your Honour, I know they exist.
HIS HONOUR:    All right, but you've failed to say so in support of your application. The application dated 18 April is dismissed.
SIMONSEN, MR: Thank you, your Honour.
From these exchanges and other parts of the transcript it can be seen that Mr Simonsen had forgotten or overlooked what had previously occurred in the action, including that Mr Legge had already given discovery of documents. By the time of the second exchange between the magistrate and Mr Simonsen, however, as I have set out above, Mr Simonsen was apparently attempting to argue that on the face of what had been discovered, there were further specific documents which should be discovered by Mr Legge. Mr Simonsen initially tried to raise this by asking 'If I may add to that, your Honour? but, as it transpired, at that time the magistrate had started giving brief oral reasons for dismissing the application. Other than being asked to stand up, there was no indication to Mr Simonsen that the magistrate was delivering his reasons. That is possibly one reason why Mr Simonsen felt that he was not given the opportunity to be heard.
This raises the difficult issue of a magistrate's duties to an unrepresented litigant before him or her.
There is no doubt that in a busy magistrate's court, a magistrate will not have the time to deal with the many unrepresented litigants who are usually unfamiliar with court rules and procedures. While unrepresented litigants do present difficult issues, there is still an obligation on any judicial officer to be careful to examine what a party is seeking on any particular application, be patient in explaining matters to them and to give more lenience than would be given to a represented litigant: Tobin v Dodd [13] ‑ [14]; Tey v City of Gosnells [2010] WASC 96 [8] - [10] and [34].
An unrepresented party is as much subject to the court rules as any other litigant. Mr Simonsen obviously had not had any regard to the Magistrates Court (Civil Proceedings) Act or Rules. However, the court must be patient in explaining the rules, even in busy courts where the pressure of business demands a certain rigour in the conduct of proceedings: Tobin v Dodd, Tey v City of Gosnells [8], [9] and [34]; Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, 16 June 1986), 14 (Samuels J).
It must be said that part of the reason why Mr Simonsen was unsuccessful in his application was that he was ill‑prepared, very confused about exactly what he was seeking by his application, had no regard to the discovery which Mr Legge had already given and obviously misunderstood the concepts of discovery and inspection. I find that the magistrate adequately explained those concepts and the relevant rule relating to inspection to Mr Simonsen. It was only after hearing what Mr Legge had to say that Mr Simonsen then began to raise that there were further specific documents which should be discovered by Mr Legge.
It might be said that, having been alerted to Mr Simonsen's argument at the end of the hearing, the magistrate in fairness could have heard further from Mr Simonsen and also explained, in more detail than was done, the requirements of an application for additional discovery. However, having regard to the nature of the application and how the hearing as a whole was conducted, I am not persuaded that Mr Simonsen was, in fact, denied the opportunity to advance any argument.
If I am wrong and there was any procedural unfairness, that does not mean that Mr Simonsen's appeal must necessarily succeed. A departure from the rules of natural justice amounting to a denial of the opportunity to make submissions or to be heard will not always result in upholding the appeal and setting aside the order under review. After hearing the submissions the parties wish to make, the appeal court may be satisfied that those submissions would not produce any different outcome: see Smith v McCusker [59], [61]; Stead v State Government Insurance Commission (1986) 161 CLR 141, 145.
That leads me to the second aspect of Mr Simonsen's appeal as to whether there was any error in the dismissal of the discovery application.

Further and better discovery

It is necessary for me to review whether there is any merit to Mr Simonsen's argument that there are other documents in Mr Legge's possession which have not been discovered. For the purpose of this appeal I proceed on the basis that Mr Simonsen's application dated 18 April 2011 was one for additional discovery – usually referred to as further and better discovery – from Mr Legge.
I set out the principles which govern the determination of an application for further and better discovery in Integrated Management Services Pty Ltd v Inches (2009) 61 SR (WA) 114; [2009] WADC 41 [6] and [7], following Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3] ‑ [6]. These are:
1.In determining whether to make an order for further discovery there must be reasonable grounds for the Court to be fairly certain that there are other relevant documents which ought to have been discovered.
2.The Court must be able to infer from the nature of the document in question that it is relevant and it will not speculate as to its relevance.
3.Relevance may either appear from the nature of the document or its contents and if the latter, there must be a prima facie case as to the contents before an order for further discovery will be made.
4.Where an application is made in respect of a document referred to in a document already discovered (the relevance of the latter being conceded by its discovery) it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is also relevant.
5.In determining whether a document relates to a matter in question the relevant test is that applied in Compagnie Financiere etCommerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 ('the Peruvian Guano test'), which is as follows:
It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may ‑ not which must ‑ either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words 'either directly or indirectly' because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences.
6.The matters in issue are to be determined by reference to the pleadings but regard must also be had to the conduct and admission of the parties and the nature of the action.
7.There is no strict entitlement to an order for discovery, including an order for further discovery. Moreover amendments to the Rules of the Supreme Court emphasise the need to have regard to the time and cost effective disposal of the action in the exercise of the discretion to order discovery.
In LexisNexis Butterworths Civil Procedure Western Australia: Magistrates Court at [1910.20.1] it is stated, and I agree, that these principles should apply in the Magistrates Court when considering an application for additional or further and better discovery, in the exercise of the court's power pursuant to s 16(1)(n) of the Magistrates Court (Civil Proceedings) Act.
The first matter which Mr Simonsen needs to show is that there are further documents, over and above those set out in the discovery given by Mr Legge in April 2004, in the possession of Mr Legge. There must be reasonable grounds for the court to be fairly certain that there are other relevant documents which ought to have been, but have not been discovered.
One difficulty which Mr Simonsen has is that, as the magistrate correctly observed, Mr Simonsen did not in his affidavit sworn in support of his application give any evidence to support an assertion that there are other documents in the possession of Mr Legge beyond that which he has already discovered. In fact, Mr Simonsen has not actually inspected the documents which were discovered by Mr Legge. Even without such inspection, however, it may be possible to discern from an affidavit of discovery itself whether documents of a specific type have or have not been discovered. As a general rule a list of documents verified by affidavit is conclusive as to its contents, but it may be challenged if it is apparent from the pleadings or from the documents listed in the affidavit itself that there has been some omission or there is some insufficiency in the discovery given: Fruehauf Finance Corp Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359, 364; Mulley & Marney v Manifold (1959) 103 CLR 341, 343.
Both Mr Simonsen and Mr Legge addressed me concerning the discovery sought by Mr Simonsen as I have set out in [12] above, with reference to Mr Legge's affidavit of discovery filed on 29 April 2004.
I should record that similar to his unpreparedness when this matter was argued before Magistrate Bromfield, Mr Simonsen seemed to be unprepared for this appeal, without copies of many of the documents which he had filed in the Magistrates Court. I provided to the parties copies of Mr Legge's affidavit of discovery and Mr Simonsen's affidavit accompanying the application of 18 April 2011 setting out the discovery he was seeking.
Having heard both parties' arguments and looking at the discovery list filed by Mr Legge and the nature of the documents sought by Mr Simonsen, as well as taking into account the affidavit in opposition to Mr Simonsen's application sworn by Mr Legge on 28 April 2011, I consider there are no reasonable grounds to be fairly certain that there are other relevant documents in Mr Legge's possession which ought to have been discovered.
Overall, when reviewing the discovery which Mr Legge has given, it needs to be remembered that this partnership was a very short one lasting only approximately three months. The discovery which has been given by Mr Legge appears to canvass the relevant period and lists documents of the nature sought by Mr Simonsen.
In relation to the particular documents sought, as I have set out in [12] above, in item (a) Mr Simonsen has asked Mr Legge to discover copies of all deposit slips for the bank account of AGE Automation. I am not satisfied that those are documents discoverable by Mr Legge. Deposit slips which are completed and handed over to the bank at the time of a deposit of monies would be in the possession, custody and power of the bank and not, in my view, in Mr Legge's possession, custody or power.
In relation to the documents sought in item (b), in Mr Legge's affidavit of discovery there are cheque butts discovered (document number 18). I am not fairly certain that there are any further documents of this nature which are discoverable by Mr Legge.
Mr Simonsen seeks discovery of items (c) to (e), but upon reviewing Mr Legge's affidavit of discovery there are listed a number of documents relevant to expenditure. He has discovered a number of invoices (some with attached EFTPOS payments slips), cash receipts, internet banking transfers and ATM withdrawal slips. I am not fairly certain that there are any further documents of this nature which are in Mr Legge's possession, custody or power and discoverable by Mr Legge.
In relation to stock, items (f), (g) and (h), based on the submissions made to me by each of Mr Simonsen and Mr Legge, there is an issue as to whether there was any opening stock at the time they commenced the partnership and what records the partnership kept. That is an issue which would need to be resolved on affidavit evidence. Without that evidence, no court could be fairly certain that there are any further documents of this nature which are discoverable by Mr Legge.
Similarly with the customer sales contract installation files, item (i), there is an issue about who is currently in possession of those files which will need to be resolved as a matter of fact (Mr Legge asserted that Mr Simonsen has these files).
Item (j) relates to the 'balance of payment invoices for "deposit" invoices' and refers to specific invoice numbers. Mr Simonsen said he needed these because 'the deposit invoices relating to those invoices don't actually determine the difference between the value of the deposit in conjunction with the overall value of the job.' However, I had some difficulty understanding what this was requesting, when Mr Simonsen has copies of all invoices and bank statements. All Mr Simonsen was able to say then was that he had put this in after having discussions with his accountant. I am not certain what documents are being requested by item (j) or that there are any documents of this nature which are discoverable by Mr Legge.
Finally, in relation to items (k) to (n) these are the requests relating to the 'MJS-7' document. I consider that the documents called for in these items are the same as those already sought in items (c) to (e). It is another way of requesting details relating to expenditure of different types. This illustrates the difficulties faced by Mr Simonsen by reason of his not having inspected the documents discovered by Mr Legge in 2004. As I have already observed, there are many documents listed in the discovery provided by Mr Legge in 2004 which would meet the description of expenditure for those matters requested in items (k) to (n). I am not fairly certain that there are any further documents of this nature which are discoverable by Mr Legge. Further, as 'MJS-7' is a spreadsheet prepared by or on behalf of Mr Simonsen for the litigation he has with Mr Legge, the matters referred to in that spreadsheet are not 'in respect of a document referred to in a document already discovered' as set out in point 4 [40] above.
I have concluded that there are no reasonable grounds to be fairly certain that the documents which Mr Simonsen seeks are in Mr Legge's possession, custody or power, have not already been discovered and ought to have been discovered. In light of the discovery which Mr Legge has already given, and in the absence of both an inspection of those documents by Mr Simonsen and an affidavit from him filed in support of the application offering substantial assistance in establishing whether additional documents exist, it is only speculation that Mr Legge has other documents in his possession.
In all the circumstances, having heard the submissions from each of the parties on the issue of the additional (or further and better) discovery, there is in my view no possibility of any different outcome on Mr Simonsen's application of 18 April 2011. It should have been dismissed.

Conclusion

I do not consider there was any error of fact, law or discretion in the magistrate's decision to refuse Mr Simonsen's application of 18 April 2011. Accordingly, Mr Simonsen's appeal will be dismissed.

ANNEXURE 1

CHRONOLOGY OF EVENTS

Date

Description

Comment

19.09.03

Summons filed by Mr Simonsen - action number 017201 of 2003

The claim is for 'Monies due and owing by the defendant to the plaintiff for profit and assets from the business partnership namely AGE Automation where the plaintiff was an equal partner in the said business in accordance with the Partnership Act 1895. Annexed hereto are the plaintiff's particulars of claim. Interest is claimed at the rate of 6% per annum pursuant to section 32 of the Supreme Court Act and to being a daily rate of $2.18 from date of summons to payment or lodgement. The plaintiff claims $13,986.19 plus interest and costs'.

19.09.03

Mr Simonsen files Particulars of Claim

The particulars include the following claims:

The plaintiff is entitled as an equal partner of AGE Automation to an equal share of profits of $12,286.19 (par 4).

It is alleged (par 5) that the defendant paid himself from electronic funds transferred to his private bank account an amount of $1,700.

It is alleged that the defendant obtained a credit card for the business of AGE Automation in order to gain by deceit a pecuniary benefit to the detriment of the plaintiff through ATM withdrawals and EFTPOS purchases without the plaintiff's knowledge (pars 6 and 7). It is alleged the plaintiff is entitled to a lien or right of retention of the partnership assets and interest on the amount of the plaintiff's share of the partnership assets in accordance with sections 54 and 55 of the Partnership Act (par 9).
3.	30.09.03	Mr Legge files a Notice of Entry of Intention to Defend
4.	06.10.03	Application lodged by Mr Simonsen to list the matter for a pre‑trial conference
5.	06.10.03	Notice of Pre‑Trial Conference issued setting a date for the pre‑trial conference of 27 October 2003
6.	27.10.03	Orders made before the clerk in pre‑trial conference	Order 1 is 'the parties shall give mutual discovery on oath of all documents which are and have been in their respective possession, custody or power relating to the matters in question in this action 19/11/2003'.
7.	27.10.03	Notice of Appointment to Act and Address for Service filed by solicitors for Mr Legge	Solicitors, Lawton Gillon, have now been appointed to act on behalf of the defendant.

13.11.03

Mr Simonsen files a Request for Further and Better Particulars

Although the document filed is entitled 'request for further and better particulars' the request is that:

1. The defendant provide true copies of all supply invoices including supplier receipts for all ATM and EFTPOS transactions, internet bank transfers and cheque payments in relation to the bank account of AGE Automation referring to equipment and stock purchases of the said business including operating costs incurred to the said business; and

2. And all other books, papers, writings and other documents relating to the said action which may be in your custody, possession or power.

22.12.03

Mr Simonsen files an Interlocutory Chamber Summons for Discovery

10.

12.01.04

Orders made on Mr Simonsen's chamber summons of 22.12.03 that:

1. Unless the defendant provides discovery to the plaintiff as ordered by the client in pre‑trial conference on 27.10.03 within 28 days, the court may order that the defendant's defence by set aside and the plaintiff proceed under section 46 of the Local Courts Act; and

2. Each party bear own costs.

This is a springing order.

11.	19.01.04	Mr Simonsen files a chamber summons for summary judgment
12.	19.01.04	Mr Simonsen files an affidavit sworn in support of his application for summary judgment	The annexures to the affidavit include business name searches, copies of the business' bank account statements (Annexure 'A'), a copy of a facsimile from the National Australia Bank dated 9 April 2003 (Annexure 'E'), a payments spreadsheet (Annexure 'F'), and copies of AGE Automation invoices (Annexure 'G')
13.	06.02.04	Mr Simonsen's application for summary judgment is heard in chambers	Mr Simonsen appears in person and Lawton Gillon appear for Mr Legge. According to the notes of proceedings in chambers the orders made are: 1. Chamber Summons filed 19 January 2004 ASD (adjourned sine die); 2. The plaintiff pay the defendant's costs of today's appearance in any event.
14.	25.02.04	Mr Simonsen files a Chamber Summons seeking orders that the defence be struck out and judgment be entered pursuant to section 46 of the Local Courts Act

15.	25.02.04	Mr Simonsen files an affidavit sworn in support of the chamber summons filed 25.02.04	The application is based on orders made on 12 January 2004 that within 28 days the court may order the defendant's defence be set aside and the plaintiff proceed under section 46 of the Local Courts Act. It is alleged in the affidavit that Mr Legge has not complied with the order to provide discovery initially ordered in the pre‑trial conference on 27 October 2003 and the subject of the springing order made on 12 January 2004 (pars 3 and 4 of the affidavit). It is also alleged that Mr Legge has not filed particulars of defence in response to the plaintiff's particulars of claim.
16.	27.02.04	Mr Simonsen files an Additional Affidavit in Support of Application for Summary Judgment filed 19.01.04
17.	15.03.04	The chamber summons dated 25 February 2004 is heard in chambers before Magistrate Cicchini	Orders are made adjourning the chamber summons, which was amended, to a hearing on 5 April 2004 at 11.00 am and also listing the plaintiff's application for summary judgment to be heard at the same time. A further order is made that the chamber summonses dated 19 January 2004 and 25 February 2004, together with any supporting affidavits, are to be served upon the defendant separately.

18.	19.03.04	Mr Simonsen files a further chamber summons described as 'amended' seeking orders that: 1. The defence be struck out and judgment entered pursuant to section 46 of the Local Courts Act.
19.	19.03.04	Mr Simonsen files a further affidavit in support of chamber summons filed 19.3.04
20.	05.04.04	Mr Simonsen's two applications by chamber summons are heard before Magistrate Cockram.	Mr Simonsen appears in person and Lawton Gillon appear for Mr Legge. The two chamber summonses are adjourned to 7 May 2004.
21.	29.04.04	Mr Legge files an Affidavit of Discovery (Affidavit of Geoffrey Spencer Legge sworn 28 April 2004 verifying List of Documents and Annexure 'A').
22.	07.05.04	A further hearing in chambers takes place before Magistrate Boothman.	Mr Simonsen appears in person and Mr Gillon for Lawton Gillon appears for Mr Legge. Magistrate Boothman dismissed both of Mr Simonsen's chamber summonses dated 19.1.04 and 19.3.04. On the chamber summons dated 19 March 2004 an order was made that the defendant pay the plaintiff's costs of the application limited to disbursements. On the chamber summons dated 19.01.04 costs were reserved.

23.	17.05.04	Mr Simonsen files a request for discovery entitled 'Discovery of Documents'.	This appears to be requesting further and better discovery including copies of invoices and the defendant's personal bank account statement.
24.	16.03.05	Mr Simonsen writes a letter to the Clerk of Court.	Mr Simonson informs the court that he had been informed by the Insolvency and Trustee Service (ITSA) that the defendant had been made bankrupt by sequestration order on 22 March 2004. Mr Simonsen states that as he can no longer proceed with his claim as a result of the bankruptcy and he requests reimbursement of the court costs and fees.
25.	22.03.05	Letter written by the Perth Local Court to Mr Simonsen.	Mr Simonsen is advised by the court that the court fees paid cannot be refunded and that the defendant's bankrupt status does not preclude him from continuing with the action.
26.	11.11.05	Mr Simonsen files a further application for summary judgment.	The specific order sought is 'judgment to be entered against the defendant in the sum of $14,886.19 together with interest pursuant to section 32 of the Supreme Court Act plus costs of this application costs of the action and court fees incurred to date'.

27.	11.11.05	Mr Simonsen files an affidavit sworn in support of application for summary judgment	Mr Simonsen's affidavit includes annexures as follows: · Document setting out bank transfers and drawings for both the defendant and the plaintiff from the bank account of AGE Automation. (Annexure A - described as 'Wage Drawings') · A calculation of profit distribution. (Annexure B) · Copies of AGE Automation bank account statements. (Annexure C) · Copy of a lease of commercial/industrial premises made for premises at Suite 9, 328 Albany Highway. (Annexure D)
28.	14.11.05	Notification issued from the Magistrates Court advising that the plaintiff's application has been set down for hearing on 5 December 2005.
29.	22.11.05	Mr Simonsen files submissions in support of application for summary judgment
30.	05.12.05	Mr Simonsen's application for summary judgment is heard before Magistrate Cockram.	Mr Simonsen appears in person and there is no appearance for or by Mr Legge. According to the notes of proceedings on the Magistrates Court file the application is dismissed.

31.	05.12.05	Transcript of the proceedings in Magistrate's Chambers.	During the course of the hearing Mr Simonsen handed to the Magistrate a letter provided the ITSA and identified that were liquidated amounts provable in the bankruptcy of the defendant and therefore leave was required to proceed further in the present action. The letter from ITSA is dated 19 July 2005 and is handed back to the plaintiff (ts 6).
32.	04.02.06	Mr Legge writes a letter to the Magistrates Court	Mr Legge complains that a hearing had taken place without his knowledge, that he had found out about the hearing by chance and he was never served with the plaintiff's application for summary judgment.
33.	07.02.06	The Magistrates Court responds to Mr Legge's letter.	The letter from the court explains to Mr Legge that an affidavit of service was filed by the plaintiff sworn 26 November 2005 stating that he did serve the defendant with the chamber summons for summary judgment on 22 November 2005.
34.	20.03.06	Magistrates Court receives a letter and an affidavit from Mr Legge sworn 20 March 2006.	Mr Legge's affidavit deposes that although it was claimed by the plaintiff that he served an application for summary judgment on him on 22 November 2005 he was only made aware of this when making an enquiry at the Magistrates Court regarding the action and he was never served with the document.

35.	21.03.06	Letter from the Magistrates Court to the Officer in Charge at Kensington Police Station	This letter forwards the affidavit and letters from Mr Legge, together with the affidavit from Mr Simonsen indicating that the application for summary judgment was served personally, and asks the police to undertake necessary investigations.
36.	Undated but query April 2011	Mr Simonsen writes a letter to the Magistrates Court requesting that the action be re‑listed for a pre‑trial conference in or around September 2011.
37.	08.04.11	Notice of Pre‑Trial Conference issued by the Magistrates Court advising a pre‑trial conference to be held on 12 September 2011.
38.	18.04.11	Mr Simonsen files an application seeking the following orders: 1. The claimant seeks orders 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; 2. The claimant seeks orders that the defendant provide discovery and disclosure for the business partnership of AGE Automation within 28 days pursuant to the claimant's affidavit annexed hereto.

39.	18.04.11	Mr Simonsen files a General form of affidavit regarding discovery	In this affidavit Mr Simonsen sets out the further discovery and disclosure of documents which he seeks from the defendant.
40.	18.04.11	Mr Simonsen files a substituted statement of claim.	The amount now claimed is a total of $21,870.19.
41.	19.04.11	Magistrates Court advises Mr Simonsen that his application has been set down for hearing on 9 May 2011.
42.	28.04.11	Mr Legge files a response to Mr Simonsen's application of 18.04.11, objecting to the orders sought
43.	28.04.11	Mr Legge files an affidavit opposing the plaintiff's application of 18.04.11	Mr Legge in his affidavit deposes: · That the plaintiff has been charged by the Western Australian Police Major Fraud Squad with six counts of fraud and six counts of attempted fraud, relating to the partnership of AGE Automation. (pars 1 & 2) · During the police investigation a search of the plaintiff's residential property was undertaken and in that search documents from the AGE Automation partnership were found. Mr Legge states that the documents were the same documents that the plaintiff is requesting in his affidavit dated 18 April 2011. (par 4)

· Mr Simonsen had two claims of the same number running at the same time (17201/2003 and 12071/2008). On 8 April 2011 the registrar ordered Mr Simonsen to discontinue his case (number 12071 of 2008) that he commenced in which he made the same claims albeit with a different claim value. (par 9)

· Mr Simonsen is asking for documents that he had in his possession, which Mr Legge would not have been able to provide, or documents that he (Mr Simonsen) himself has provided with this claim

44.

29.04.11

Mr Legge files a response (defence) to Mr Simonsen's substituted statement of claim dated 18.04.11.

45.

27.04.11

A letter is written by Mr Legge to the Magistrates Court querying the date for the pre‑trial conference on 12 September 2011 and querying the plaintiff's application listed to be heard on 9 May.

46.	03.05.11	Magistrates Court responds to Mr Legge's letter of 27 April 2011 advising the pre‑trial conference is listed for 12 September 2011 and the application by the claimant to be heard on 9 May 2011 is for the defendant to provide accounting details and give discovery.
47.	29.04.11	Mr Legge files a statement of defence to the substituted statement of claim filed 18 April 2011
48.	09.05.11	Magistrate Bromfield hears Mr Simonsen's application dated 18 April 2011.	Both Mr Simonsen and Mr Legge appear in person. The application dated 18 April 2011 is dismissed.