Thorpe v Schulz - [2015] WADC 149

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THORPE -v- SCHULZ [2015] WADC 149

CORAM: MCCANN DCJ

HEARD: 4 DECEMBER 2015

DELIVERED : 11 DECEMBER 2015

FILE NO/S: APP 62 of 2015

BETWEEN: ANDREW THORPE
Appellant
AND
KLAUS SCHULZ
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE BOON
File No  :PE GCLM 13942 of 2008

Catchwords:

Magistrates Court appeal - Case placed on the Inactive Case List - Application for removal dismissed - Whether magistrate failed to consider a relevant consideration

Legislation:

District Court Rules 2005 r 50(1)
Limitation Act 1935
Magistrates Court (Civil Proceedings) Act 2004 s 19(2) and s 40(1)
Magistrates Court (Civil Proceedings) Rules 2005 r 5(1), r 40(f), r 46(4), r 95B(1), r 95C, r 95D, r 95E and r 95F
Workers' Compensation and Injury Management Act 1981

Result:

Appeal allowed
Matter remitted to Magistrates Court for re-hearing

Representation:

Counsel:

Appellant: Mr G J Douglas
Respondent: Mr S J Blyth

Solicitors:

Appellant: Douglas Cheveralls Lawyers
Respondent: Lewis Blyth & Hooper

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

AK v The State of Western Australia [2008] HCA 8; 232 CLR 438
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74
House v The King (1936) 55 CLR 499
Kennedy; Re Ex Parte West Australian Newspapers Ltd [2006] WASCA 172
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
Manonai v Burns [2011] WASCA 165
The Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133
Velez Pty Ltd v Tudor [2011] WASCA 218

MCCANN DCJ:

Introduction

In this matter the appellant appeals from the decision of a magistrate of the Magistrates Court of Western Australia made on 3 August 2015 whereby the appellant's application for an order that his action against the respondent be taken off the Inactive Cases List was dismissed.

Chronology

The uncontentious facts are as follows.
By case number 13942 of 2008 in the civil jurisdiction of the Magistrates Court the appellant claims the sum of $21,421.82 plus costs and interest for professional services alleged to have been rendered for and at the request of the defendant for some years up to and including 2002. The claim was filed on the appellant's behalf by B W Duckham & Co.
On 11 August 2009 the respondent filed a notice of intention to defend by his solicitors, Hammond Legal.
On 21 December 2009 the respondent applied for an order that the proceedings be dismissed due to the appellant's failure to request a registrar to list the case for a pre‑trial conference within the 14 day period prescribed by r 39 of the Magistrates Court (Civil Proceedings)Rules 2005.
On 3 February 2010 the appellant requested the registrar to list the case for a pre‑trial conference by notice under his own hand, that is to say, he was self‑represented.
On 8 February 2010 a magistrate dismissed the respondent's application to dismiss the claim.
On 12 February 2010 the matter was set down for a pre‑trial conference on 23 March 2010. At that pre‑trial conference orders were made for the filing and service of pleadings and discovery by 18 May 2010. The pre‑trial conference was adjourned to a date to be fixed upon the written request of either party.
On 29 March 2010 B W Duckham & Co filed a statement of claim. Particulars were filed sometime after 31 March 2010.
On 15 April 2010 the respondent's lawyers filed a detailed defence. In short, the respondent contended that:
(i)The appellant's claims were barred pursuant to the provisions of the Limitation Act 1935.
(ii)The appellant had failed to provide itemised accounts.
(iii)The appellant had failed to provide legal services to the appropriate standard and did not properly incur the legal fees the subject of his claim.
(iv)The respondent had an equitable set‑off or counter-claim against the appellant.
On 20 April 2010 Galic & Co went on the record for the appellant, giving their address for service as 64 Fitzgerald Street, Northbridge.
On 27 July 2010 the respondent's new lawyers (Lewis Blyth & Hooper) filed an application for a springing order for judgment that the appellant's claim be dismissed by reason of the appellant's failure to comply with the order for discovery made on 23 March 2010. It is not immediately apparent from the Appeal Book what became of the application, but obviously it did not bring about the cessation of the proceedings.
On 22 December 2010 the respondent applied for a trial of a preliminary issue as to whether the appellant's action was statute-barred and sought an order for judgment that the action be dismissed accordingly.
On 31 January 2011 the appellant filed a notice which effectively signified that he was self‑represented and that his address for service was 192 Subiaco Road, Subiaco.
On 4 February 2011 a magistrate ordered that the application for a trial of the preliminary issues be dismissed and that the respondent pay the appellant's costs to be assessed if not agreed.
On 17 February 2015 the Magistrates Court wrote to Lewis Blyth & Hooper and Galic & Co giving notice that the case had been placed on the Inactive Cases List on the ground that no procedural step had been taken for 12 months. A copy was not sent to the appellant at 192 Subiaco Road, Subiaco.
On 17 July 2015 the appellant filed a notice that his address for service was henceforth Coventry Village, 243‑253 Walter Road, Morley. He also filed an application for an order that the case be removed from the Inactive Cases List and for an abridgement of time for the service and hearing of the application. The application was accompanied by an affidavit sworn by the appellant which stated as follows:
1.I am the claimant in this case.
2.I make this affidavit in support fo [sic] an application for an order that the case be taken off the inactive cases list pursuant to S.95E(2)(a) [sic: r 95E(2)(a)].
3.Notice of the Case is [sic] on the inactive cases list was issued on February 17, 2015. However I did not receive the Notice from my former solicitors till two days ago. Accordingly the case will be dismissed unless an order is made on or before August 16, 2015, and I am out of the country from August 5, 2015.
4.If the case is reactivated I intend to proceed with the claim in a timely manner and will seek a Listing Conference at the earliest opportunity.
I pause to note that this affidavit could not have been more brief. The first two paragraphs were introductory. The third paragraph explained the delay between the issuance of the notice by the court and the bringing of the application pursuant to r 95E(2)(a) and as to why an expedited hearing was required. The only evidence directly touching upon the substantive merits of the application was the fourth paragraph in which the appellant stated his intention to proceed with the claim in a timely manner and how he intended to do it, namely by seeking a listing conference at the earliest opportunity.
On 31 July 2015 Lewis Blyth & Hooper filed an affidavit sworn by Mr Blyth in opposition to the application. Mr Blyth set out a brief history of the matter dating back to when the appellant provided legal services to the respondent in the 1990's in connection with a personal injuries case. The affidavit made the point that the appellant 'has taken 13 years to pursue recovery of the costs in issue'.
Mr Blyth also deposed that the appellant had the benefit of security over real estate owned by the respondent's late parents pursuant to a guarantee of his fees given by the parents. Mr Blyth deposed that by orders made in 2010 in Action Civ 1427/2010 the Supreme Court ordered, on the application of the appellant, that a caveat which he had lodged remain in place until further order. The caveat and the order of the Supreme Court remain in effect. The respondent is the beneficiary of the estate and as such the equitable owner of the secured property. Probate was granted to him on 20 July 2012. He has not been able to conclude the administration of the estates.

The Magistrates Court (Civil Proceedings) Rules 2005

Pursuant to r 95B(1) of the Rules a 'case is taken to be inactive unless the court orders otherwise' if for 12 months no procedural step is taken in that case by a party to the case.
Pursuant to r 95C, when a case is taken to be inactive under r 95B, the Principal Registrar is to (a) put the case on the Inactive Cases List and (b) give all parties to the case written notice of the fact and why, and as to the effect of r 95D.
Pursuant to r 95D the only documents that may be lodged in relation to a case on the Inactive Cases List are (a) an application for an order under r 95E, or (b) a notice of discontinuance under r 29, or (c) a memorandum of consent under r 53 to an order or judgment that would finally dispose of the case.
Rule 95E provides as follows:
95E. Removing cases from Inactive Cases List
(1)A party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.
(2)The Court may order that a case be taken off the Inactive Cases List —
(a)if it is satisfied that the case will be conducted in a timely way; or
(b)for any other good reason.
(3) When the Court orders that a case be taken off the Inactive Cases List, it may make further orders for the conduct of the case in a timely way.
Pursuant to r 95F, a case that is on the Inactive Cases List for six continuous months is taken to be dismissed. Pursuant to sub‑rule (2), a case is also taken to be dismissed if no procedural step is taken for six months after the date on which a case is ordered to be taken off the List.
Pursuant to sub‑rule (4), a party may apply for an order for costs and the court may make an order for costs in respect of a matter which is deemed to have been dismissed under sub‑rules (1) or (2).
These rules came into operation in late 2013. They are modelled on similar rules of the Supreme Court and the District Court. Those rules have been considered in a number of cases, including Lashansky v Legal Practice Board [No 2] [2010] WASC 159, Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74 and The Owners of SP13443, 129 – 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133.
The following principles may be stated.
Courts have in the past been sympathetic to tardy litigants and have been reluctant to grant strike‑out applications for delay. However, the Inactive Cases List provisions have brought a new rigour to the area. Courts are proactive in ensuring that cases progress with reasonable dispatch to ensure that parties have a reasonable opportunity to litigate their disputes without undue prejudice to each other, or the wider community.
The rules relating to inactive cases are part of a suite of case management reforms implemented in recent years which are informed by contemporary case management principles which predicate that courts have the jurisdiction to be pro‑active in terms of the management of litigation and are not expected to be passive onlookers (see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175).
But provisions relating to inactive cases lists are not intended to be punitive. They are a case management tool.
An application for removal from the Inactive Cases List should not be regarded as mechanical. Some evidence should be advanced to show that the party seeking the order is committed to advancing the proceedings. Ideally, a timetable should be set by the court, perhaps backed up by a springing order.
It will be relevant for the court to enquire whether there is evidence to explain how the case came to be on the Inactive Cases List and why it should not be expected that, if it is removed from the list, it would return to the list. It will be relevant whether there is some evidence about the state of the action and how it is proposed that it will be progressed through to a trial.
Turning now to r 93E itself, sub‑rule (2) confers a discretion upon the court to remove a matter from the Inactive Cases List provided that a jurisdictional threshold is satisfied. Either:
(a)the court must be 'satisfied that the case will be conducted in a timely way' (emphasis added); or
(b)'there must be any other good reason'.
The facts and matters that may be relevant to the exercise of the discretion thereby enlivened are not limited to the relevant jurisdictional fact, but in the case of par (a) that fact is a sine qua non of a decision to remove a case from the list.
I have emphasised the words 'the case' in paragraph (a). This signifies that the court must be satisfied as to how the litigation will be conducted and not just how the applicant will conduct the litigation. In other words, the jurisdictional fact directs attention to a future circumstance which is not necessarily dependent on the subjective intentions of the applicant.

The hearing in the Magistrate's Court

The appellant's application pursuant to r 93E(2) was heard by a magistrate on 3 August 2015. The appellant appeared in person and Mr Blyth appeared for the respondent.
The appellant based his application on par (a) of sub‑rule (2). In other words, he contended that the court could be satisfied that the case would be conducted in a timely way if it was taken off the Inactive Cases List and that such provided sufficient grounds for a favourable exercise of the discretion. He did not contend that there was 'any other good reason' to do so and therefore did not rely on par (b).
The appellant submitted that there had been 'no contumelious disregard or breach of orders' and that the matter had 'just been asleep'. He said that there were 'a lot of reasons for that' but did not go into them and there was no evidence of the same. He was content to base his submissions and application on his assertion that he intended to proceed with the matter in a timely way and would seek a listing conference for that purpose.
The learned magistrate challenged the appellant about this and suggested that it was not necessarily enough for him to assert that he would conduct the matter in a timely way. He undertook (as he had testified) to 'seek a listing conference to get it moving'. He also pointed out that the respondent had always had the option to move the proceedings along and had declined to do so.
Mr Blyth's submission on behalf of the respondent is encapsulated in the following passage which came after he had pointed out that the appellant bore the onus of proof (AB75):
… There's simply been nothing put before the court that satisfies you that it will proceed when you look at the history of the matter of the file, and the bland statement [about the appellant's intentions] … without … explanation just doesn't get him over that mark.
In response the appellant submitted that there was little more that he could do whilst the matter remained on the Inactive Cases List except bring an application to remove it. He asserted that the case was 'ready for trial' and referenced the fact that there had been pleadings and discovery. He said (AB77):
My submission, your Honour, is that whilst there is certainly ample grounds for criticism in the way the matter has been conducted thus far, that's an issue in relation to some other sort of application which Mr Blyth has already flagged. If the court can make an order that satisfies the requirement that a matter be taken from the inactive cases list only for certain things done, then either it gets done or the matter doesn't come off the inactive cases list, and that's the way the court can be satisfied that indeed the matter will be conducted in a timely way.
He then suggested that the court could order that the matter be removed from the list subject to him lodging an application for a listing conference within seven days.
In effect, the appellant advanced two contentions. First, that in considering whether the matter 'will be conducted in a timely way' (as required by par (a)) the court should take into account its power to make orders under sub‑rule (3) and, second, conditions could be imposed which placed the appellant on terms.
The learned magistrate gave her decision and reasons immediately after the conclusion of submissions.
Her Honour commenced by summarising the history of the matter to date. Having regard to a similar chronology which she outlined during submissions, I am satisfied that she was fully cognisant of all relevant matters in that regard and took them into account.
Against that background she concluded (AB78) that the matter had not been dealt with in a timely way. That is obvious, was conceded and is not challenged on appeal.
Her Honour accepted that the court had failed to give the appellant a timely notice of the matter being placed on the Inactive Cases List and in effect found that he did not learn of this until 15 July 2015 (AB78‑79).
Her Honour then noted the absence of any explanation from the appellant as to how the case came to be placed on the Inactive Cases List.
Her Honour then turned to consider whether par (a) had been satisfied and referred to par 4 of the appellant's affidavit. She said (AB79; emphasis added):
That is a statement of his intention, but I've got to look at that in the context of the way this whole thing has been conducted, and in my view, the claim that was lodged in 2008 relating to matters that go back to early 1990's and bills that were rendered in 2000 relating to matters going back to – up to 11 years in the context where there was one application by the defendant for default, effectively a default judgment because of failure to comply with the rules.
Her Honour then pointed to the fact that one aspect of the defence was that the proceedings were statute‑barred and yet still nothing had happened for four and a half years. Her Honour then said (AB79 – 80) (emphasis added):
That is part of the picture, in my view, in assessing whether I can be satisfied that the case will be conducted in a timely way, and in the absence of any explanation as to why it has taken this long, I'm not satisfied, simply on a [indistinct] decision from Mr Thorpe that it will be conducted in a timely way, that is appropriate to exercise my discretion.
I'm not satisfied given the past. It clearly hasn't been conducted in a timely way and I'm not satisfied that it's appropriate in the circumstances of this case to order that the case be taken off the inactive cases list. I'm just not satisfied that it will be conducted in a timely way. It's been anything but timely up to now, so the application is dismissed
Put shortly, her Honour made a finding that, having regard to the unsatisfactory history of delay, she was not satisfied as to the future, the appellant's asseverations notwithstanding.

The grounds of appeal

The appellant relies on the following grounds of appeal:
1.The learned magistrate erred in law in failing to consider whether the requirements of r 95E(2) could be complied within the future conduct of the case or alternatively in failing to give proper consideration as to whether the requirements of r 95E(2) could be complied with in the future conduct of the case.
2.The learned magistrate erred in failing to consider the appellant's submission that the requirements of r 95E(2) could be satisfied by imposing a condition upon an order that the case be taken off the Inactive Cases List.
3.The learned magistrate erred in failing to give reasons or failing to give adequate reasons for not exercising her discretion in the appellant's favour.
4.The learned magistrate erred in failing to take into account the court's failure to comply with the proper procedure for entering a case onto the Inactive Cases List and the prejudice suffered by the appellant as the result of that failure.

Determination

Pursuant to s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 a party to a 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.
Pursuant to r 50(1) of the District Court Rules 2005 an appeal is to be way of a 'reconsideration of the evidence' that was before the Magistrates Court.
The order appealed from in this case is interlocutory in nature and involved the exercise of a discretion. Therefore, the appellant is required to show that the discretion miscarried having regard to considerations set out in innumerable authorities, of which Kennedy; Re Ex Parte West Australian Newspapers Ltd [2006] WASCA 172 is helpful since it dealt with an appeal from an interlocutory decision of the District Court. The contemporary exposition of the fundamental principles go back to House v The King (1936) 55 CLR 499, 504 – 505. Put shortly, an appellate court may interfere with the exercise of a discretion if it is satisfied that the court below has acted on an error of law or irrelevant considerations have been taken into account or relevant considerations ignored. It has sometimes been said that it is sufficient if insufficient weight has been given to a material consideration but that really means that there has in substance been a failure by the court below to exercise the discretion. Sometimes an error may be express, but it may also be implied from the manifest unreasonableness of the decision.
I commence with ground (4) which was not pleaded in the original appeal notice. Pursuant to r 56 of the District Court Rules, the court may give leave to amend, but I am not inclined to do so because, in my opinion, there is no merit in the ground.
Ground (4) relies on the administrative error of the Magistrates Court in sending the notice that the case had been placed on the Inactive Cases List to the wrong address. As a result the appellant received a month's notice of the impending dismissal of his claim instead of the prescribed six months. Mr Douglas did not argue that this mistake vitiated the decision to place the matter on the Inactive Cases List but, rather, contended that the learned magistrate had failed to take it into account and the prejudice thereby suffered by the appellant.
I do not accept that submission. It goes without saying that the court's mistake was serious but, in the final analysis, the appellant received notice that the matter was on the Inactive Cases List in sufficient time to seek relief pursuant to r 93E and his application was determined on the merits.
I turn now to grounds of appeal (1) and (2) and in particular the contention that in making her finding as to the future conduct of the case, the learned magistrate failed to take into account the court's power to impose conditions on an order that the case be taken off the Inactive Cases List.
It is necessary to first to deal with a preliminary point.
Mr Blyth submitted that there is no power under r 93E for the court to make an order removing a matter from the Inactive Cases List on a conditional basis. I accept that submission. Rule 93E is to be contrasted with its equivalents in the Rules of the Supreme Court and District Court Rules which explicitly provide that a case may be removed from the Inactive Cases List on a conditional basis. The omission of such a provision from r 94E must be taken to be informed. So, a matter can either be on the Inactive Cases List, or off it, but never conditionally.
That is not an end of the matter. Clearly, in making a finding in respect of paragraph (a), the court must consider all matters which are relevant to the future conduct of the case if it is removed from the Inactive Cases List. Orders that are sought and which the court is minded to make (a fortiori, enforce) pursuant to sub‑rule (3) and other statutory powers would be relevant considerations. Other provisions may be found in the Magistrates Court (Civil Proceedings) Act s 19(2) and r 5(1), r 40(f) and r 46(4) of the Magistrates Court (Civil Proceedings) Rules.
Mr Blyth submitted to the contrary because, he submitted, sub‑rule (3) would not be enlivened until the court was functus in relation to sub‑rule (2).
I do not accept that submission for two reasons. First, it is inconsistent with the wording of sub‑rule (3) which contemplates that the programming orders can be made by the court simultaneously with ('when') making the order taking the case off the Inactive Cases List. Second, paragraph (a) contemplates that the court must take into account future contingencies, which would include the possibility of orders being made under sub‑rule (3), or under any other provision, including rules empowering the court to enforce its orders.
Pursuant to its powers the court could require the appellant (and the respondent for that matter) to comply with strict programming orders and, if necessary, use sanctions or contingent sanctions (such as springing orders for dismissal of the proceedings) to ensure compliance and, thus, the timely conduct of the case.
I turn now to the magistrate's reasons.
It was certainly open to the arbitrator on the evidence to find (and it is unchallenged) that, having regard to the history of the matter, the appellant's evidence and verbal assurances about his good intentions could not be accepted if he was left to his own devices.
However, I am not satisfied that the learned magistrate took into account the possible impact of programming orders (and orders for enforcement of the same) upon the way in which the case would be conducted in the future. In my opinion the appellant's submission to the magistrate about that was well made.
Her Honour did not expressly deal with it in her reasons, although she undoubtedly did address the relevant aspect of the principle which I have emphasised at [33]. Perhaps this lacuna is the other 'part of the picture' which her Honour took into account. That is to say, perhaps one could infer that such was considered and impliedly dealt with by the learned magistrate on the basis that she rejected the trustworthiness of the appellant's expressed intention and undertaking to get the case moving. In other words, she was not even satisfied that the appellant would comply with his undertaking to cooperate with any court orders.
That possibility is supported by the fact that this factor was explicitly raised in the appellant's submissions just before the learned magistrate delivered her decision. It might be inferred that her Honour considered it and rejected it on the spot, but did not explicitly deal with it in her summary reasons which tended to focus on the past history of the case. Mr Blyth reiterated his submissions below that there was insufficient evidence before the court to make a finding as to the likely conduct of the case in the future. He pointed to the fact that the appellant's affidavit contained only one brief statement on point (paragraph 4) which was little more than a generalised undertaking. He submitted that the appellant should have condescended to particulars as to the current state of readiness of the matter for trial and what he intended to do about it.
To illustrate the point, Mr Blyth pointed out that the appellant had testified that he would immediately seek a listing hearing when that was not even possible because the case was then formally still at the pre‑trial conference stage (see [8] above). I do not think much turns on this point, although it is relevant as showing that the appellant might not have properly turned his mind to the matter.
In my opinion there is merit in Mr Blyth's submission, which if correct could explain and/or justify the lacuna in the learned magistrate's reasons.
The appellant did approach the application in a mechanical way. Ideally he could have condescended to particulars of his readiness to go to trial. For example, he might have stated that his witnesses had been proofed and even annexed the proofs of evidence to his affidavit. An applicant for relief under a provision such as r 93E can ill‑afford to be coy about such matters.
The shortcomings in the appellant's evidence also had to be seen in the context of the past history of the matter and the absence of an explanation for the same, which the learned magistrate took into account.
On the other hand, the state of the case and what needed to be done to progress it through to a trial was not entirely unknown. There was some evidence on the file about the issues and the court record showed that the parties had exchanged pleadings and discovery and, under such circumstances, the case could be taken to be amenable to a further pre‑trial conference and/or a listing hearing.
In my respectful opinion the learned magistrate did fail to take an important and relevant consideration into account, namely that the court had the power to control what occurred so that the appellant's sincerity was not necessarily decisive, as her Honour evidently believed. If the court made an order removing the case from the Inactive Cases List and also made programming orders, then the case would either come to be dismissed in a timely way (if the appellant did not cooperate) or it would proceed to trial in a timely way (if he did cooperate).
In my opinion her Honour misdirected herself by focusing exclusively on how she anticipated the appellant was likely to conduct the case in the future, rather than how the case could be conducted under the court's auspices. I reiterate what I said at [30]. The courts are no longer passive onlookers in respect of the management of litigation and may intervene and manage as necessary. In any event, the appellant invited the court to intervene.
Therefore, the exercise of the learned magistrate's discretion miscarried in so far as she failed to consider all relevant matters. The error amounted to an error of law and it is open to the court to intervene and set aside her decision.
The court should not do so unless the error below has worked an injustice or a potential injustice. So, for instance, an interlocutory order might be of little or no substantive consequence to the parties or the substantive merits of the litigation. But this case is not of that nature. The substantive effect of the dismissal of the appellant's application was to consign the case to automatic dismissal pursuant to rule 93D.
I express no view as to substantive merits of how the discretion that fell to be exercised by the learned magistrate should be exercised. It suffices to say that matters which were relevant to the fact finding and discretionary exercise were not considered and the magistrate's decision was vitiated in my opinion.
The appellant made one further submission to the learned magistrate which did not figure in her reasons, namely that the respondent had taken no steps to proceed with the case either. Although it was the appellant's action, the respondent's proprietary interests were directly affected by the security interest claimed by the appellant. He also had a counterclaim. Whilst not overlooking the appellant's responsibilities (including equitable responsibilities having regard to the relief granted by the Supreme Court) the respondent had much to gain by proceeding to trial and did nothing.
I accept that the learned magistrate needed to consider whether the respondent had acquiesced in the case 'going to sleep' as might be implied. However, this was not relied upon as a ground of appeal and I say nothing more about it.
Turning to ground (3), pursuant to s 31 of the Magistrates Court Act 2004 reasons for judgment in a case:
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
This provision was considered by the Court of Appeal in Manonai v Burns [2011] WASCA 165 in which Hall J (with whom Pullin and Murphy JJA agreed) said [56]:
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
In Velez Pty Ltd v Tudor [2011] WASCA 218 the court considered the identical provision in the Workers' Compensation and Injury Management Act Act 1981. After referring to the abovementioned passage in Manonai v Burns Murphy JA said [70]:
In identifying the facts accepted and the reasons for doing so … and the law applied and the reasons for doing so … the arbitrator will in my view still be obliged to expose the reasoning process linking them, and justifying the ultimate result.
His Honour then referred to AK v The State of Western Australia [2008] HCA 8; 232 CLR 438 [44].
It is not necessary to set out the relevant principles any further. Mr Douglas contended that the learned magistrate's failure to expressly set out how she dealt with the appellant's submission about the court's powers under sub‑rule (3) signified that the reasons were inadequate.
I do not accept that submission. In my opinion it is possible to comprehend the learned magistrate's reasons (including omissions) from her decision. As I have said, on my assessment it follows from the reasons that her Honour believed that it was pointless removing the case from the Inactive Cases List, possibly even with programming orders, because the appellant would just not comply. That was a relevant consideration, and was adequately explained. It is also possible to discern that other relevant considerations were not taken into account, namely that the court could control the future conduct of the case in such a way that the case would either be dismissed or proceeded to a hearing in a timely way.

Conclusion

In my opinion ground (2) has been made out because, as a matter of law the determination of the appellant's application in the Magistrates Court failed. I express no opinion as to its overall merit or as to what the outcome should be if all relevant matters are considered, or if it is now too late to remove the case from the Inactive Cases List given that it is taken to be dismissed pursuant to r 93D.
In my opinion it is appropriate that the matter be re‑determined in the Magistrates Court rather than in this court because that court is best placed to rule on matters which are governed by and affect the rules, procedure and running of that court.
For these reasons I am satisfied that the appeal should be allowed, the decision of the learned magistrate set aside and the case remitted to the Magistrates Court to be re‑heard and determined by a different magistrate.