Tey v Lewis - [2012] WASCA 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- LEWIS [2012] WASCA 174

CORAM: PULLIN JA
NEWNES JA

HEARD: 21 AUGUST 2012

DELIVERED : 21 AUGUST 2012

PUBLISHED : 29 AUGUST 2012

FILE NO/S: CACV 17 of 2012

BETWEEN: KOK YONG TEY
Appellant
AND
JOSHUA RICHARD LEWIS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
File No  :APP 9 of 2007

Catchwords:

Practice and procedure - Whether the grounds of appeal have any prospect of success - Failure to prosecute appeal - Role of case management system - Whether reasons of primary judge sufficient

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: In person
Respondent: In person

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

Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Michael Wilson & Partners v Nicholls [2011] HCA 48
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113

JUDGMENT OF THE COURT: This appeal comes before the court on a registrar's notice to the parties to attend to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal have a reasonable prospect of success.
On 21 August 2012, we dismissed the appeal and said we would provide reasons for our decision later. These are the reasons.

Background

The appeal has its genesis in an action which the appellant commenced against the respondent in the Magistrates Court at Fremantle on 23 January 2006. Default judgment was entered against the respondent on 5 February 2007. On 7 February 2007, the default judgment was set aside, apparently on the basis that it was not validly entered. On 28 February 2007, the appellant lodged an appeal to the District Court against the setting aside of the default judgment.
The action then appears to have remained inactive until, on 8 November 2007, the respondent applied for summary judgment. That was granted on 20 February 2008. The appellant appealed to the District Court against that order by a notice of appeal filed on 12 March 2008.
The appeal against the order for summary judgment was heard on 6 February 2009. The appellant succeeded on the appeal, Groves DCJ setting aside the judgment and remitting the matter to the Magistrates Court. We were informed on the hearing of this appeal that no further steps have been taken in the action since that time.
In the meantime, the appeal against the setting aside of the default judgment lay dormant. The only step taken in that appeal was the filing of the notice of appeal.
Ultimately, on 6 September 2011, some three and a half years after the appeal notice had been filed, the District Court issued a notice to the parties to attend to show cause why the appeal should not be dismissed for want of prosecution. That was heard on 9 November 2011, before the Principal Registrar. No affidavits were filed on either side.
The Principal Registrar concluded that the appeal should be dismissed. He gave four reasons for that conclusion. First, there was no satisfactory explanation for the delay. The appellant merely said that she had inadvertently overlooked the appeal. Secondly, the appellant had had ample opportunity to proceed with the appeal but had not done so. Thirdly, while the appeal lay dormant further steps had been taken in the action in the Magistrates Court, the application by the respondent for summary judgment and the appeal against the decision to grant summary judgment having proceeded on the basis that the default judgment was no longer extant and the action was on foot. Fourthly, the dismissal of the appeal would not affect the parties' substantive rights as those rights would be determined in the action in the Magistrates Court. The appellant would simply lose the ability to challenge the setting aside of the default judgment.
The appellant appealed against that decision to a judge of the District Court. On 13 February 2012, Wisbey DCJ dismissed the appeal, concluding that the appellant had failed to prosecute it in a timely way.
The appellant has appealed to this court against that decision.

Grounds of appeal

There are three grounds of appeal as follows:
1.The learned judge denied the appellant procedural fairness by cut [sic] short the hearing that day on 13 February 2012. Sufficient time was not given to the appellant to bring up the subject of materiality of the amount involved in a Form 13 application for default judgment in the sum of $53,156.89 given in favour of the appellant (then the applicant) by the Fremantle Magistrates Court on 5 February 2007.
2.On page 48 of the transcript of proceedings on 13 February 2012, the learned judge refused to accept the facts and explanations given by the appellant.
3.The District Court Case Management is to be responsible to monitor the progress of the case, but (a) had failed to do so, and (b) the Principal Registrar Gething had failed to acknowledge and accept the facts.

The disposition of the notice

None of the grounds of appeal have any prospect of success. The first ground of appeal is difficult to understand, but from the appellant's submissions it appears the substance of the complaint is that the primary judge did not give her sufficient time to make her submissions. We do not accept that. It is true, as the appellant points out, that the hearing took only 11 minutes. However, there was no affidavit evidence and the point was a short one. The respondent made no submissions, having arrived only at the end of the hearing. Having read the transcript, we are satisfied that the appellant was given a fair opportunity to put any relevant submissions.
It is evident from the appellant's written submissions in relation to the second ground of appeal that she contends the primary judge was bound to accept the facts and the explanation she provided at the hearing as satisfactorily explaining the delay. That, with respect, is quite wrong. The very lengthy delay in prosecuting the appeal called for a very cogent explanation. The appellant did not file an affidavit explaining the delay and the explanation which she offered to the primary judge from the bar table was simply that she had devoted her time to the appeal against summary judgment (ts 46). Not only was that an unsatisfactory explanation so far as it went, it did not explain the delay after February 2009 when the appeal against summary judgment was determined. There is no substance in this ground of appeal.
The third ground of appeal rests upon a fundamental misunderstanding of the case management system in the District Court. It is no answer to delay to say, as the appellant says, that the case management system did not prompt her to take steps in the appeal. The case management system is to enable the court to monitor and manage litigation in the court. It does not exist to remind parties when steps are to be taken in a proceeding and it does not relieve a party of their obligation to conduct litigation in a timely way, in accordance with the rules of court. That obligation remains unaffected. It is an obligation which the appellant manifestly failed to fulfil. The ground of appeal is misconceived.
There are two further matters. First, whilst the appellant did not specifically complain that the reasons of the primary judge were inadequate it is appropriate to say something about them.
What constitutes sufficient reasons for decision depends upon the circumstances of the case: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 [27]. Reasons do not have to be lengthy or elaborate but they must disclose the intellectual process which has resulted in the decision: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [73]; Mount Lawley [28]. In rare cases, the reasons for decision may be sufficiently apparent from what was said by the judge in the course of argument: see Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58, 60 ‑ 61, 66. However, in any case where reasons for decision are required that is not a course to be encouraged and even in simple cases the court should give explicit reasons sufficient to enable the parties, particularly the unsuccessful party, and an appellate court to understand the basis upon which the judge reached the decision that he or she did. The reasons should not be left to be gleaned from the transcript of exchanges between the bench and bar table.
In the present case, the reasons of the primary judge were brief. Having observed that there was no affidavit material to explain the delay, his Honour said that he dismissed the appeal 'on the basis that it had not been prosecuted in a timely or in any proper way' (ts 49). It is implicit that his Honour did not regard the appellant's unsworn explanation for the delay as satisfactory. In circumstances where the lengthy period of delay was undisputed, his Honour's reasons were sufficient.
We would add that even had we concluded that the reasons of the primary judge were inadequate, we would nevertheless have dismissed the appeal. It does not follow that where an appealable error arises from inadequate reasons the appeal must succeed. The appeal court is entitled to consider the matter and, if it can do so, it may itself decide the matter: Mount Lawley [29]. In this case, the court is in as good a position as the primary judge to decide the matter. The delay by the appellant in prosecuting the appeal was inordinate and there was no satisfactory explanation for it. The appeal had been hanging over the respondent's head for more than three and a half years when it was struck out. The only prejudice to the appellant if the appeal was dismissed was that the action would have to be determined at trial in the usual way. In the circumstances, the appeal was properly dismissed.
The second matter is an oral application made by the appellant at the hearing that we disqualify ourselves on the basis of a reasonable apprehension of bias. We refused the application. The following are our reasons for doing so.
The apprehension of bias was said to arise from a statement at the end of our reasons in Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113 in which we said that the papers in that matter would be referred to the Attorney General for consideration of an urgent application for an order against the appellant under s 4 of the Vexatious Proceedings Restriction Act 2002 (WA).
The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners v Nicholls [2011] HCA 48 [67]. In Johnson v Johnson, the plurality pointed out (493) that in applying the test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation requires the judge to discard the irrelevant, the immaterial and the prejudicial.
The statement we made in Tey v Optima Financial Group Pty Ltd [No 3] related to the number of unsuccessful appeals and applications the appellant had made in respect of a judgment against her in the Magistrates Court totalling some $900 (inclusive of costs). We noted that to that point the appellant had costs orders against her amounting to some $35,000 and there were a number of appeals and applications by the appellant still to be determined. The statement was plainly not directed to the merits of any unresolved appeals brought by the appellant but to the plethora of unsuccessful litigation she had instituted in respect of what was a very modest judgment sum indeed.
What we said was not capable of giving rise to a reasonable apprehension that we might not bring an impartial and unprejudiced mind to the resolution of the specific issues which arise in this appeal.

Conclusion

As none of the grounds of appeal had any prospect of success, we ordered that the appeal be dismissed.