Stockden v National Credit Management Limited - [2016] WADC 8

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STOCKDEN -v- NATIONAL CREDIT MANAGEMENT LIMITED [2016] WADC 8

CORAM: STEVENSON DCJ

HEARD: 20 JANUARY 2016

DELIVERED : 20 JANUARY 2016

PUBLISHED : 21 JANUARY 2016

FILE NO/S: APP 59 of 2015

BETWEEN: GARTH STOCKDEN
Appellant
AND
NATIONAL CREDIT MANAGEMENT LIMITED
Respondent

Catchwords:

Appeal - Magistrate's Court - Summary judgment for the defendant - Additional evidence on appeal adduced by appellant - Exceptional circumstances - No reasonable cause of action or grounds for alleged claim - No discernible error of law or fact in exercise of discretion to dismiss proceedings

Legislation:

Magistrates Court (Civil Proceedings) Act 2004

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Ms P A Martino

Solicitors:

Appellant: Not applicable
Respondent: P A Martino

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

STEVENSON DCJ: [This judgment was delivered extemporaneously on 20 January 2016 and has been edited from the transcript.]
Mr Stockden, the appellant, is self-represented. The hearing has been conducted on that basis and in an effort through submissions to understand the basis of the appeal. I think it is accepted by the appellant that but for the issue of a parking infringement notice by Curtin University and its subsequent enforcement by that organisation against him, we would not be here today.
However, Mr Stockden, in his submissions today, has made it plain that that is not the real basis of his grievance. That can be seen from the history of the matter, and the basis upon which he sought and, in fact, did commence the proceedings in the Magistrates Court against the respondent.
That real grievance is that, according to the appellant, the respondent is in breach of an implied contract and the purpose of the proceedings in the Magistrates Court is to attempt to recover by way of costs an assessment of the appellant's loss arising out of his time which in turn is said to arise out of the failure of the respondent to respond to his so-called contract.
Arbitrarily he has fixed the sum of $1,000 as compensation for his time with the result that following a course of correspondence by which he seeks to impose a contract on the respondent he claims to be entitled to, at least at the time of the commencement of the proceedings in the Magistrates Court, the sum of $34,238.60.
It is difficult to follow, with respect, the appellant's reasoning. At first blush I thought the proceedings might have been commenced out of a sense of frustration about not being heard in relation to the issue of the infringement notice.
As has been canvassed in submissions with Mr Stockden, he had an initial opportunity within seven days which it appears he did take, to put his side of the argument to Curtin University with respect to why the infringement notice should not be enforced against him.
Sometime later Curtin University placed the matter in the hands of the respondent to conduct enforcement procedures arising out of the non‑payment of the infringement notice. Even then, by letter dated 11 December 2014, the appellant was given the opportunity to elect to have the matter dealt with by the Magistrates Court of Western Australia.
Instead of adopting that election and exercising the right of having his opposition to the infringement notice issued to him heard by a court, shortly thereafter it appears the appellant paid the infringement notice which was for $45, together with some costs, which is confirmed by the respondent's letter dated 13 January 2015. That letter confirms total receipt of $59.65 as of 6 January 2015, and that the account has now been repaid in full.
Ironically, the letter goes on to say:
We take this opportunity to thank you for your cooperation in finalising this matter.
It concludes by saying:
If we can be of further assistance please do not hesitate to call our office during business hours on 1300-784-999.
That offer was not, at least on the material before the court, taken up, and instead the appellant commenced a series of communications in writing with the respondent, commencing, firstly, with a letter dated 19 December 2014, which was followed by a further letter dated 2 January 2015.
In that correspondence, for various reasons set out in the correspondence, the appellant sought to impose an implied contract on the respondent on the basis that if the respondent did not agree to his demands then by its non-response it would be deemed to have accepted his so‑called offer and by doing so, as he said on 2 January 2015, by ignoring the notice and the attached invoice it would be at 'your peril'.
It appears what the appellant has done is to accumulate the sum for which the proceedings were commenced in the Magistrates Court to over $30,000 on the basis of a calculation of his own time at the rate of $1,000 per hour, such that on 13 April 2015 he commenced proceedings in the Magistrates Court.
As mentioned, the appellant's claim appears to be based on an alleged implied contract by reason of the failure of the respondent to comply with and acknowledge the demands that he was making for payments of his time calculated at the rate of $1,000 per hour.
The time and the claimed payment by the invoices is, as mentioned in the course of submissions, something which have been generated by the appellant himself, apparently to his own advantage and is otherwise unrelated to the infringement notice proceedings themselves and which have been finalised.
The proceedings in the Magistrates Court in Midland were commenced by a general procedure claim on 13 April 2015.
To that claim was attached a statement of claim, in addition to the five paragraphs describing the claim itself on the initiating form. This information informed the respondent of the basis upon which the appellant sought to maintain the proceedings in the Magistrates Court against it.
The respondent filed a response to the general procedure claim on 24 April 2015.
Subsequently, the respondent by an application filed on 5 June 2015 in the Magistrates Court sought, pursuant to s 17 of the Magistrates Court (Civil Proceedings) Act 2004 (the Act) to strike out the appellant's claim. In the alternative in the application, the respondent sought, pursuant to s 18 of the Act, that judgment be entered in favour of it on the basis that the claim had no reasonable prospect of succeeding.
That is a claim for summary judgment as opposed to a claim for dismissal on the basis that the action did not disclose any reasonable grounds for claim.
The application was eventually heard by his Honour Magistrate Benn on 5 August 2015. Magistrate Benn made orders after hearing submissions from the parties. First, that summary judgment be entered for the respondent; second, that the appellant's claim be dismissed; and third, that the appellant pay the respondent's costs to be assessed if not agreed.
It is gleaned from a consideration of the transcript that the implied contract upon which the appellant seeks to rely and its alleged breach by the respondent was the subject of submissions and was understood to be the basis of the cause of action by Magistrate Benn. Having heard the parties as mentioned, his Honour was not satisfied that an identified cause of action to justify the claim had been made out by the appellant and, accordingly, entered summary judgment on behalf of the respondent.
At the same time, as mentioned, he also made an order dismissing the appellant's claim.
The provisions of s 17 and s 18 of the Act are self-explanatory and, in essence, the issue is in general terms effectively the same, namely whether or not the basis upon which the appellant seeks to maintain his claim against the respondent is such that as a matter of law, it can be said that it has some reasonable prospect of success.
As mentioned in the course of submissions, sometimes a case may, as a matter of law or as a matter of evidence, arguably be weak as opposed to strong. In this case, Magistrate Benn was of the view that there was no reasonable prospect of the appellant's claim having any prospect of success if it was allowed to continue to a trial in that jurisdiction.
By his affidavit filed in this court in support of the appeal, Mr Stockden has annexed additional material that was not, I am told, before Magistrate Benn at the time he made his decision. That material simply fills in some of the gaps in the information that was before Magistrate Benn and, in any event, the subject of the pleadings to the extent that they existed in that form before him.
I am satisfied that notwithstanding he did not have the additional information, he did fully grasp and understand as a result of Mr Stockden's submissions which were cogent and clear, the basis upon which the appellant sought to proceed against the respondent. It is, of course, the case that exceptional circumstances must be demonstrated before additional evidence can be received in this court for the determination of the appeal.
It seems to me that it is appropriate that the appellant be allowed to rely upon this information because it is part of the story and the evidence upon which he seeks to rely. It merely adds to the material before the learned magistrate and provides some flesh on the bones as to the way in which the claim is said to arise. I note in particular that the first document which appears to be evidence the implied contract relied upon by the appellant is dated 19 December 2014.
In par 2 of the subsequent letter dated 2 January 2015, the appellant refers to the respondent as:
Your acts and actions have now confirmed an implied contract under my terms and conditions as stipulated in my correspondence to you on 19 December 2014. (emphasis added)
It is common ground and accepted by the appellant that there was no formal response to his letter on 19 December 2014. However, importantly, he himself appears to have changed his position during this relevant period of time and decided to pay the infringement notice.
Which would, quite reasonably on the part of the respondent, seem to indicate that, as far at least 19 December is concerned and 2 January 2015 is concerned, that correspondence has been overtaken by the payment, which from the respondent's viewpoint was formally received and paid, from memory, on 6 January 2015.
In any event, by letter dated 27 January 2015 the respondent wrote to the appellant and informed him:
We refer to the above and advise that infringement number 1012810 has been paid. Accordingly, our account is closed and the matter finalised. Yours faithfully.
Even on a strict contractual analysis, even if the respondent could have been said to have accepted the appellant's terms and conditions unilaterally imposed by the appellant on it by reason of it not responding or having done nothing, that argument cannot stand because the appellant himself has subsequently changed his position during the relevant period of time.
It would have been plain to the appellant at all times after payment was made by him of the infringement notice and enforcement proceedings that so far as the respondent was concerned and Curtin University was concerned the matter was at an end.
Instead, as mentioned, the appellant has sought to rely upon an alleged implied contract and an alleged breach of that contract by the respondent to commence the proceedings in the Magistrates Court on 13 April 2015.
The powers of this court on the hearing of the appeal are well understood and have been explained to the appellant at the commencement of the hearing today. The appeal of course is, pursuant to s 40 and s 43 of the Act, one which requires the matter to be re-heard and calls for a reconsideration of the evidence and material before the lower court to determine if there has been an error in the decision appealed from.
In other words, the onus is on the appellant to demonstrate an error of fact or law by the court below which would give rise to the appeal being determined in his favour. Subject to the outcome of that question, the court is then given broad powers to deal with the matter by affirming or varying the decision of the Magistrates Court or indeed sending it back to be re-heard.
The grounds of the appeal are set out in the appeal notice. They have been canvassed with Mr Stockden in the course of submissions. I am not persuaded that there is any relevant material error demonstrated by the grounds relied upon or by anything said in the course of submissions today that would affect the decision made by Magistrate Benn.
Some of the matters reference to in the grounds of appeal concern procedural matters and are a long way away from dealing with the actual issue. That is, the merits of the matter which concerns whether or not there is any reasonable prospect of the appellant's claim being successful.
To the extent the appellant seeks to call in aid other matters, including his human and civil rights, duties and obligations relating to debt collection, to found in Commonwealth legislation which is concerned specifically with national consumer credit protection and matters before the Australian Competition and Consumer Commission, none of which the alleged claim by the appellant could as a matter of law have any reasonable prospect of succeeding in the Magistrates Court.
As canvassed in the course of submissions with Mr Stockden, this court must apply the law. That law provides for the appeal to be determined by reference to the same considerations that applied to the learned magistrate.
That decision was based on an application by the respondent which contended that the appellant's claim should be dismissed or that it should be entitled to summary judgment on the basis, in essence, in each case that there was no known cause of action which could reasonably be said to arise out of the facts relied upon by the appellant to justify or ground the proceedings in the Magistrates Court.
Having reviewed the material and having heard the submissions of Mr Stockden, this court is not persuaded that there is any reasonable prospect of the appellant's claim achieving success or having any proper legal basis to be heard and argued and therefore there is no error demonstrated in the decision of Magistrate Benn.
As harsh as it might seem, the respondent does have legal rights and it is important that the rights and interests of both parties are take into account. In this case there is no discernible or arguable legal cause of action arising out of the matters relied upon by the appellant which could give rise to the claim in the proceedings in a Magistrates Court.
For that reason the respondent was entitled to the benefit of the decision of the learned magistrate, namely to effectively dismiss those proceedings against it.
This is, as mentioned, by reason of the operation of the tests which apply and were applied by the learned magistrate which recognise that it is in the interests of justice that matters which have no prospect of success should be dealt with and resolved as early as possible in the hope that the public resources and, indeed the resources of the parties themselves, can be saved from dealing with the matter.
For those reasons for decision, in my view, the appeal must be dismissed. I do not propose to make any further orders in relation to the disposal of the appeal itself having regard to the power of this court to affirm the decision of the magistrate below. It is sufficient to simply make an order for the dismissal of the appeal.
The following orders are made:
1.The appeal be dismissed.
2.The appellant pay the respondent's costs of the appeal, to be taxed unless otherwise agreed.