Smith v Mandurah Auto Pty Ltd - [2014] WADC 69

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SMITH -v- MANDURAH AUTO PTY LTD [2014] WADC 69

CORAM: DERRICK DCJ

HEARD: 16 MAY 2014

DELIVERED : 16 MAY 2014

PUBLISHED : 22 MAY 2014

FILE NO/S: APP 25 of 2014

BETWEEN: NICOLE SMITH
Appellant
AND
MANDURAH AUTO PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE EDWARDS
Citation  :MH/MINOR/52 of 2013

Catchwords:

Application for leave to appeal out of time from a decision in Magistrates Court - Minor case claim - Principles applicable to grant of extension of time within which to appeal

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
District Court Rules 2005 (WA)

Result:

Application for an extension of time to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: Not applicable
Respondent: Not applicable

Case(s) referred to in judgment(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Butler v Bennett [2007] WADC 107
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Hoskins v Armstrong [2008] WADC 168
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Lance v Hogerdyk [2013] WADC 190
Re Burton; Ex parte Lowe [2003] WASCA 306
Regan v Gibson [2010] WADC 144
Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128
Shilkin v Taylor [2011] WASCA 255
Simonsen v Legge [2010] WASCA 238
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1

DERRICK DCJ:
[This judgment was delivered extemporaneously and has been edited from the transcript.]

The appellant has filed a notice of appeal against a decision made by Magistrate Edwards on 16 October 2013 dismissing an application to set aside default judgment.
The appellant appeared in person at the hearing of her appeal.
The respondent has filed a notice of intention to take part in the appeal and to argue that the decision the subject of the appeal should be upheld. However, on 3 May 2014 Mr Duncan Kee, the respondent's 'dealer principal', notified the court in writing that due to cost considerations the respondent would not be appearing at the hearing of the appeal, and that the respondent would abide by any order made by the court 'other than as to costs'. In accordance with this advice, there was no appearance for the respondent at the hearing of the appeal. I note in this context that Mr Kee is the representative of the respondent who has been responsible for the commencement and prosecution of the respondent's claim against the appellant, and who had been appearing as the respondent's representative at all the hearings that have taken place in the Magistrates Court.
In order to deal with the appeal I have, as is provided for under the District Court Rules 2005 (WA) (the DCR), had access to a copy of the relevant Magistrates Court file. The copy of the Magistrates Court file was provided to this court by the Magistrates Court pursuant to r 52(3) of the DCR. The file contains copies of not only all court documents relating to the respondent's claim but also copies of all documents filed by the parties in support of their respective cases.

Background

A summary of the relevant background to the appeal is as follows.
On 16 January 2013 the respondent commenced a minor case claim in the Mandurah Magistrates Court against the appellant. By the claim the respondent alleged that the appellant had breached a contract to buy a motor vehicle from the respondent. The claim was for liquidated damages in the amount of $3,993.50.
On 1 March 2013 the appellant filed a notice of intention to defend the claim.
On 9 April 2013 the court made orders for the filing of a statement of claim within 14 days and for a statement of defence to be filed within 14 days thereafter. The matter was adjourned to a pre-trial conference to be held on 28 May 2013.
On 23 April 2013 the respondent filed its statement of claim.
On 28 May 2013 the defendant refused to enter the pre-trial conference. The pre-trial conference was adjourned to 13 June 2013.
On 13 June 2013 the appellant failed to appear at the pre-trial conference. No statement of defence had been filed by the appellant by this date. The court therefore entered default judgment against the appellant in favour of the respondent in the sum of $3,993.50. The court also ordered the appellant to pay the respondent's costs in the amount of $213.62.
On 24 June 2013 the appellant filed an application to set aside the default judgment entered against her.
On 18 July 2013 the appellant filed an affidavit in support of her application to set aside the default judgment. The basis for the application as disclosed by the appellant's affidavit was, in essence, that at the time of the pre-trial conference on 13 June 2013 she had been unwell and had been diagnosed as suffering from severe stress and depression, and further that prior to 13 June 2013 she had informed the court that she was unwell, that she was seeking legal advice in the matter and that she wished for the pre-trial conference to be adjourned.
The appellant's application to set aside the default judgment was listed for hearing on 28 August 2013. The respondent indicated that it opposed the application.
On 28 August 2013 the appellant did not appear at the hearing of the application to set aside the default judgment. The application was dismissed.
On 2 September 2013 the respondent filed an application under the Civil Judgments Enforcement Act 2004 (WA) for a property (seizure and sale) order in an attempt to enforce its judgment against the appellant. On the same date the order was issued.
On or about 10 September 2013 the appellant filed a further application to set aside the default judgment entered against her on 13 June 2013. The basis for the application as revealed by papers filed by the appellant in support of her application was that she was in Queensland on 28 August 2013 as a result of having to attend on her mother who was in a rapidly deteriorating state of health. However, the application and the documents filed in support were rejected by the court because they were not in a proper form. In particular, no properly sworn affidavit had been filed by the appellant in support of the application.
On 24 September 2013 the appellant filed another application to set aside the default judgment entered against her on 13 June 2013. The application was supported by an affidavit sworn on the same date.
Also on 24 September 2013 the appellant filed an application for an order suspending the respondent's right to enforce the judgment entered against her.
In her affidavit sworn on 24 September 2013 the appellant stated that she was not at the hearing on 28 August 2013 'as a result of an urgent family and court matter with [Queensland Civil and Administrative Tribunal] in Queensland requiring my attendance to represent my 80‑year‑old mother whom is in failing health currently placed in a High Care Ward at Sunnymeade Park Aged Care Facility Caboolture'. The appellant further stated in her affidavit that her attempts to notify the court that she needed an urgent adjournment of the hearing listed for 28 August 2013 by way of phone calls and mail 'were refused', and that she was advised that she had to attend in person to have the hearing set aside for another date. She stated that she was not in a position to attend in person because she was required in court at the offices of the Queensland Civil and Administrative Tribunal (QCAT) in Queensland.
The appellant's application to set aside the default judgment and the application for a suspension order were listed for hearing on 16 October 2013.
On 16 October 2013 the appellant's applications to set aside the default judgment and for the suspension order were dismissed.
On 14 November 2013 the assistant bailiff reported that he had been unable to execute the property (seizure and sale) order because the appellant did not appear to own any goods of value. He suggested in his report that the respondent make an application for a means inquiry.
On 21 January 2014 the respondent made an application for a means inquiry. The means inquiry was listed for hearing 26 February 2014. However, on that date the inquiry was adjourned to 26 March 2014 and other directions were made.
On the same date, that is, 26 February 2014 the appellant filed a notice of appeal dated 25 February 2014 against the decision made on 16 October 2013 dismissing her application to set aside the default judgment. The notice specifies the ground of appeal to be 'On compassionate leave in Qld – defending family court matters'. The notice is supported by an affidavit sworn by the appellant on 25 February 2014.
On 26 February 2014 the appellant also filed an 'application in an appeal' seeking a 'suspension order'.
The Magistrates Court file does not contain a transcript of the hearing which took place before Magistrate Edwards on 16 October 2013. Nor do the documents on the file reveal the basis for her Honour's decision dismissing the appellant's application to set aside the default judgment. However, in her affidavit sworn in support of her appeal the appellant deposes to the following:
1.She was in Queensland dealing with the QCAT matter between 19 August 2013 to 3 September 2013.
2.On returning from Queensland on 4 September 2013 she attended in person at the Mandurah Magistrates Court with verification of her travel to Queensland and attendance at QCAT between 19 August 2013 and 3 September 2013.
3.After satisfying the Magistrates Court registry that she had a 'fair reason' to appeal the default judgment handed down on 28 August 2013 she was granted a new hearing date for 16 October 2013.
4.She was unaware that when she attended court on 16 October 2013 she would again be asked to provide the details of her travel to Queensland. She therefore attended court on that date having left the relevant documentation at her office. As a result default judgment was entered against her.
5.She is not familiar with court procedures and she believes the decision is 'unfair after satisfying the registry fully that [she] be given another hearing'.
At the hearing of her appeal I asked the appellant what reasons the magistrate gave to her for dismissing her application. In response to my question the appellant in effect repeated what is in her affidavit sworn in support of the appeal. That is, the appellant told me that the magistrate had said to her that in the absence of any documentation verifying that she had been in Queensland at the relevant time she was not satisfied that the appellant had legitimately missed the original hearing. When I asked the appellant whether the magistrate had made any comments to her about the merits or otherwise of her defence, the appellant said she did not believe that the magistrate had made any such comments.
It would appear from documentation that is on the Magistrates Court file that the appellant was on 28 August 2013 in Queensland dealing with the QCAT matter referred to in her affidavit. There is some documentation to that effect on the Magistrates Court file which I assume is some or all of the documentation which the appellant asserts she provided to the registry, but which she did not have with her when she attended court on 16 October 2013.
I have already mentioned that the respondent has filed a notice of intention to take part in the appeal. Attached to the notice is a document prepared by Mr Kee which responds to the affidavit sworn by the appellant in support of her appeal and which sets out the respondent's contentions in support of its minor case claim by reference to a number of attached copy documents (the response). It is apparent from a review of the Magistrates Court file that the copy documents which Mr Kee has referred to and attached to the response are some of the documents that the respondent has filed with the Magistrates Court in support of its claim.

Provisions governing appeals against decisions of magistrates

It is necessary, before turning to deal with the appeal, to refer to the relevant legislative provisions governing appeals to this court from decisions of magistrates.
The appeal against the decision of Magistrate Edwards has been commenced under s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act). Section 40 is, so far as is relevant in this case, in the following terms:
(1)A party to a case that is not a minor case may appeal to the District Court against —
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
(2)An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
(3)An appeal cannot be commenced more than 21 days after the date of judgment unless the District Court gives leave to do so.
(4A)The appeal must be conducted in accordance with rules of court made by the District Court.
(4)The District Court must decide the appeal on —
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
…
Section 32 of the Act provides, so far as is relevant, as follows:
(1)Except as provided by this section, no appeal lies against —
(a)an order made by the Court in the course of proceedings in a minor case; or
(b)the judgment of the Court in a minor case.
(2)If a party to a minor case is dissatisfied with the judgment of the Court in the case then —
(a)if the Court was constituted by a magistrate — an appeal lies against the judgment under Part 7 and, subject to subsection (3), Part 7 applies to the appeal; or
…
(3)Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds —
(a)that the minor case —
(i)was not within the jurisdiction of the Court; or
(ii)was not a minor case;
or
(b)that in dealing with the minor case there was a denial of natural justice; or
(c)that the judgment was beyond the Court's jurisdiction.
Rule 51 of the DCR deals with the commencement of an appeal against the decision of a magistrate.
A number of observations can be made in light of the above statutory provisions.
It is clear from s 40(4) of the Act and r 50(1) of the DCR that an appeal from a decision of a Magistrate to the District Court is by way of re‑hearing. The ability of the court to receive and admit new evidence does not render the appeal a hearing de novo: Butler v Bennett [2007] WADC 107 [10]; Hoskins v Armstrong [2008] WADC 168 [3]; Regan v Gibson [2010] WADC 144 [7].
Given that appeals from a decision of a magistrate are by way of rehearing, it is necessary for the appellant to demonstrate error in the court below: Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14]. Thus the appellate powers of the court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal is the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
As to the interaction between s 32 and s 40 of the Act, it is clear that if the decision appealed against was an order made by the Magistrates Court in the course of proceedings in a minor case or was the judgment of the court in a minor case, the appellant may only appeal against the magistrate's decision on one or more of the grounds specified in s 32(3).

Timing of appeal

I turn now to deal with the timing of the appeal.
The decision which the appellant appeals against was made on 16 October 2013. The appellant was therefore required by s 40(3) of the Act to commence the appeal on or before 6 November 2013. As I have already indicated, the appellant did not file her notice of appeal until 26 February 2014, approximately three and a half months beyond the required date. It follows that the appellant must obtain the leave of the court to commence the appeal out of time under s 40(3).
The notice of appeal filed by the appellant does not indicate that an extension of time within which to appeal is required. Further, contrary to r 51(2) of the DCR the appellant has not filed an affidavit explaining why the appeal was not commenced within time.
I raised with the appellant during the hearing of the appeal the need for her to obtain leave to commence her appeal out of time. I asked the appellant if she wanted to make an oral application to extend the time for the commencement of her appeal. In response to my question the appellant made what was in substance an oral application for an extension of time. She also provided me with her explanation from the bar table for her failure to comply with the 21 day time limit.
Despite the procedural deficiencies in the way that the appellant has made her application for leave to appeal out of time, I will deal with her application.
In Simonsen v Legge [2010] WASCA 238 [8] the court set out the matters which need to be considered when a party seeks an extension of time within which to appeal. The matters set out in Simonsen v Legge have been applied in this court in relation s 40(3) of the Act: see Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128; Lance v Hogerdyk [2013] WADC 190. I agree that it is appropriate to apply the statements made in Simonsen v Legge to an application under s 40(3).
It is clear from Simonsen v Legge that the major, although not necessarily the only, matters which need to be considered in determining an application for an extension of time within which to appeal are:
1.the length of the delay;
2.the reason for the delay;
3.the prospects of the applicant succeeding in the appeal; and
4.the extent of any prejudice to the respondent.
I will deal with each of these matters in turn.

Length of delay

As I have already said, the appellant filed her notice of appeal approximately three and a half months after the required date. The appellant's delay in commencing her appeal is therefore relatively lengthy. The length of the delay is therefore something which militates against the appellant being granted leave to appeal.

Reasons for delay

The appellant's reasons for the delay in filing her notice of appeal, as explained to me by her from the bar table, were in essence as follows. On 17 October 2013, the day after her application was dismissed by the magistrate, she returned to Queensland to care for her elderly and ill parents. At some time while she was in Queensland, she did not specify exactly when, she rang the Magistrates Court. She was told by the Magistrates Court that she had 21 days to file an appeal against the magistrate's decision. She returned to Perth for two days in December. She flew back to Queensland. She then returned to Perth in early February. She said 4 February rings a bell.
In my view, the appellant's explanation for her delay in filing her notice of appeal is inadequate.
The appellant was put on notice by the Magistrates Court about the 21 day time period. However, because she had other matters to deal with and was out of the state she decided to ignore the time limit. She could have taken steps to make arrangements for the filing of the notice of appeal even though she was interstate. She could have arranged for the filing of the notice when in Perth in December 2013. Further, even though she returned to Perth in early February 2014 she still did not file her notice of appeal until 26 February 2014 which was the day that she was to be confronted with the means inquiry.

In short, in my opinion the appellant's stated reasons for her delay in commencing the appeal do not provide support for her application for an extension of time within which to appeal.

Prospects of succeeding in the appeal

I turn to the issue of the prospects of the appellant succeeding in the appeal.
Despite the terms of the ground of appeal as stated in the notice of appeal, it is clear from the affidavit sworn by the appellant in support of her appeal that the appellant's real basis or ground for contending that Magistrate Edwards' decision should be overturned is that she did not understand that she would be required, at the hearing of her application to set aside the default judgment entered against her on 13 June 2013, to produce the documentation which she relied upon to establish that she was in Queensland dealing with her family matters on 28 August 2013. The appellant does not allege that Magistrate Edwards made any error in dismissing her application.
Even accepting that Magistrate Edwards did dismiss the appellant's application on the ground that her Honour was not, in the absence of the appellant's verifying documents, satisfied that the appellant had been in Queensland on 28 August 2013 (something which would appear from the response to be in dispute), in my view there is an immediate and insurmountable difficulty for the appellant when one comes to considering the prospects of her succeeding on the appeal. The appellant's ground for appealing against the decision of Magistrate Edwards is not a ground of appeal that falls within one of the grounds on which the appellant is under s 32(3) of the Act permitted to appeal against her Honour's decision. In particular, the appellant's argument that the Magistrate's decision should be overturned because she did not understand that she would have to present to the Magistrate the evidence that she relied upon to establish that she was in Queensland on 28 August 2013 is not an allegation that she was denied natural justice, that is, denied a reasonable opportunity of appearing and presenting her argument on the application to set aside the default judgment: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, 4; Hoskins v Van Den-Braak (1998) 43 NSWLR 290, 294; Re Burton; Ex parte Lowe [2003] WASCA 306 [63]. Accordingly, in my view this court does not have jurisdiction to deal with the appellant's appeal. It necessarily follows that the appeal is incompetent and has no prospects of success.
Despite my conclusion on the issue of jurisdiction I will, for the sake of completeness and for the benefit of the appellant, address the issue of the prospects of the appellant succeeding on the appeal on the merits.
There is no dispute that the Magistrates Court had the statutory power to enter default judgment against the appellant on 13 June 2013: the Act, s 19(2). Nor is there any dispute that Magistrate Edwards had the statutory power to dismiss the appellant's application to set aside the default judgment: the Act, s 19(3).
The discretionary statutory power given to Magistrate Edwards by s 19(3) was unfettered. Nonetheless it had to be exercised judicially: Shilkin v Taylor [2011] WASCA 255 [25]. Furthermore, it is self-evident that no purpose would have been served by the Magistrate setting aside the default judgment if the appellant would not have been able to satisfy her Honour that her defence had a reasonable prospect of succeeding: Shilkin v Taylor [25]. It follows, that in considering the prospects of the appellant succeeding on the appeal, an important issue is whether the appellant will be able to satisfy the court that her defence of the respondent's minor case claim has a reasonable prospect of succeeding: Shilkin v Taylor [25].
The respondent's claim against the respondent as revealed by the various documents on the Magistrates Court file is, shortly stated, as follows.
On 25 August 2012 the appellant entered into a written contract with the respondent to buy a car from the respondent. The contract was conditional on the appellant obtaining finance. The appellant provided information to a finance company in support of her application for finance. The finance company approved the appellant's application on the basis of the information provided by the appellant. The result was that the contract became unconditional. The respondent then proceeded to incur expense by installing in the car options and accessories requested by the appellant under the contract. Following the incurring of this expense the finance company ascertained that the appellant had provided incorrect information in support of her application for finance. The incorrect information related to her recent employment history, the current status of her employment and her recent levels of income. The finance company therefore cancelled the previously granted finance approval. In the absence of finance the appellant failed to complete the purchase of the car. The respondent consequently cancelled the contract. The respondent suffered liquidated damages in the amount of 3,993.50 being the expense it incurred in modifying the car in accordance with the appellant's instructions.
The appellant, as is apparent from her affidavit filed in support of the appeal, denies that she provided any incorrect information to the finance company. She also asserts that the respondent provided to the finance company inaccurate information relating to her employment history (an allegation which is denied by the respondent).
The appellant repeated these assertions and allegations from the bar table during the hearing of the appeal. In the course of doing so the appellant stated that she was in possession of an email from the finance company to her in which the finance company 'verifies' that it 'did not receive any documentation pertaining to [her] status as a beneficiary from [her] father's estate which she did provide to [the respondent]. I invited the appellant to provide me with a copy of the email so that I could consider whether I should grant leave for the email to be admitted as evidence on the appeal under s 40(4)(b) of the Act. However, in response to my invitation the appellant told me that she did not have the email with her because she did not realise that she would need it.
As I have already indicated, I have viewed the documents which have been filed by the parties in relation to the minor case claim. I have viewed these documents in light of the assertions made by Mr Kee in the response, the assertions made by the appellant in the affidavits which she has filed in the Magistrates Court, and the assertions made by the appellant in her affidavit filed in support of the appeal and during the appeal hearing. Having gone through this process it suffices for me to say that I am not persuaded that the appellant has reasonable prospects of establishing that the information she provided to the respondent and the finance company was in all respects correct. She may well believe that it was. However, I do not consider that she has reasonable prospects of establishing that this was in fact the case. To put it another way, I am not persuaded that the appellant would have a reasonable prospect of successfully defending the respondent's claim even if the default judgment entered against her was set aside. It follows that I am also not persuaded that the appellant would have reasonable prospects of being successful on her appeal even if an extension of time within which to appeal is granted to her.

Prejudice to the respondent

The respondent commenced its minor case claim against the appellant approximately 16 months ago. The respondent obtained default judgment against the appellant approximately 11 months ago. It has now had to deal with two applications to set aside the default judgment, the first of these having been dismissed due to the appellant's non‑appearance. Mr Kee has been required to appear for the respondent in the Magistrates Court on numerous occasions. This must, as a matter of common sense and given Mr Kee's position as the respondent's 'dealer principal' have caused at least some disruption to the running of the respondent's business. Further, it is apparent from the Magistrates Court file that the respondent has incurred costs associated with attempting to enforce the judgment, including costs associated with making an application for a means inquiry. In these circumstances I consider that if the application for an extension of time within which to appeal is allowed the respondent will suffer prejudice which will not be wholly ameliorated by a costs order in the event that the respondent is successful on the appeal.

Conclusion on application for extension of time and appeal

For the reasons stated, the application for an extension of time within which to appeal is dismissed and the appeal is dismissed.