Thorpe v Schulz

Case [2017] WASCA 199

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THORPE -v- SCHULZ [2017] WASCA 199

CORAM:   BUSS P

MITCHELL JA
PRITCHARD J

HEARD:   15 SEPTEMBER 2017

DELIVERED          :   2 NOVEMBER 2017

FILE NO/S:   CACV 123 of 2016

BETWEEN:   ANDREW THORPE

Appellant

AND

KLAUS SCHULZ
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'NEAL DCJ

File No  :APP 44 of 2016

Catchwords:

Practice and procedure - Magistrates Court - Inactive cases list - Application to remove action from inactive cases list - Where court not satisfied that matter will be conducted in timely way if removed from inactive cases list - Where no adequate explanation for delay - Whether 'any other good reason' to remove matter from inactive cases list

Practice and procedure - Remittal - Whether remittal to Magistrates Court a rehearing or new hearing - Whether error by Magistrate in not exercising discretion to admit further affidavit - Where admission of further affidavit would not have changed outcome of decision

Legislation:

Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 95D, r 95E

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr P van der Zanden

Respondent:     Mr C M Townsend

Solicitors:

Appellant:     Hotchkin Hanly Lawyers

Respondent:     Lewis Blyth & Hooper

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Clack v Murray [2017] WASCA 88

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lashansky v Legal Practice Board [No 2] [2010] WASC 159

Leighton v Garnham [No 4] [2016] WASC 134

Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518

Peacock v DM Osborne & Co [1907] HCA 42; (1907) 4 CLR 1564

R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45

R v Weiss (No 2) [2006] VSCA 161; (2006) 164 A Crim R 454

Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 9

Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116

The Owners of Riviera Apartments v Wembley Lakes Estate Pty Ltd [2009] WASC 37

Thorpe v Schulz [2015] WADC 149

Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58

  1. JUDGMENT OF THE COURT:  In September 2008, the appellant commenced an action against the respondent in the Magistrates Court, in which he claimed the sum of $21,421.82 for legal services said to have been rendered at the request of the respondent until 2002 (the action).  (At the time the legal services were said to…

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Thorpe v Schulz [2017] WASCA 199
Case
[2017] WASCA 199
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CaseChat Overview and Summary

The appeal in Thorpe v Schulz involved the appellant, who had previously been a legal practitioner, seeking to have his action against the respondent removed from the Inactive Cases List in the Magistrates Court. The appellant claimed $21,421.82 for legal services rendered up until 2002. The action had been initiated in 2008 but had experienced significant delays, leading to it being placed on the Inactive Cases List in 2015. The appellant's application to remove the action from this list was initially dismissed by Magistrate Boon in August 2015, a decision that was later upheld by McCann DCJ in December 2015. Following a remittal by McCann DCJ, the matter was reheard by Magistrate Temby in May 2016, who again dismissed the application and ordered the appellant to pay the respondent's costs. The appellant then appealed to the District Court against this decision, which was dismissed by O'Neal DCJ in November 2016. The appellant now appealed to a higher court against the orders made by O'Neal DCJ.

The central legal issues in this case were whether the Magistrates Court was correct in not removing the action from the Inactive Cases List and whether the Magistrate had erred in declining to admit further affidavit evidence during the rehearing. The appellant argued that there were valid reasons to remove the action from the Inactive Cases List and that the Magistrate should have admitted additional affidavit evidence which could have influenced the outcome of the decision.

The court found that while the Magistrates Court has broad powers to control and manage cases, the Magistrate's decision to not admit additional affidavit evidence during the rehearing was erroneous. The court held that a rehearing does not preclude the admission of new evidence under exceptional circumstances. The court also noted that the Magistrate had not properly considered the relevant factors in deciding whether to admit the additional affidavit, thus constituting an error. Consequently, the court admitted the additional affidavit and found that it would not have changed the outcome of the decision.

The appeal was ultimately dismissed, and the orders made by O'Neal DCJ were affirmed. The court found that the appellant's action was appropriately placed on the Inactive Cases List due to significant delays and that there were no compelling reasons to remove it. The court also confirmed that the admission of the additional affidavit would not have altered the decision's outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: In September 2008, the appellant commenced an action against the respondent in the Magistrates Court, in which he claimed the sum of $21,421.82 for legal services said to have been rendered at the request of the respondent until 2002 (the action). (At the time the legal services were said to have been rendered, the appellant held a practising certificate as a legal practitioner. He no longer does.) Some preliminary procedural steps were taken in the action between 2008 and 2011. Between 2011 and 2015, no steps were taken in the action at all. In February 2015, the action was put on the Inactive Cases List (IC List) in the Magistrates Court, pursuant to r 95B of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (Rules). On 17 July 2015, the appellant made an application for the action to be removed from the IC List (Application). The Application was heard by Magistrate Boon in August 2015, and was dismissed. That decision was the subject of an appeal to the District Court. In December 2015, McCann DCJ upheld that appeal, and the Application was remitted to the Magistrates Court for rehearing.[1] In May 2016, Magistrate Temby dismissed the Application, and ordered that the appellant pay the respondent's costs of the Application and of the action. The appellant appealed to the District Court against the order made by Magistrate Temby to dismiss the Application. On 18 November 2016, O'Neal DCJ dismissed the appeal and ordered that the appellant pay the respondent's costs of the appeal.[1] Thorpe v Schultz [2015] WADC 149 [9]. The appellant now appeals against the orders made by O'Neal DCJ. For the reasons which follow, the appeal should be dismissed. The speed with which the action progressed in the Magistrates Court between its commencement in 2008 and 2011, when it was put on the IC List, is best described as glacial. Following the filing of the action, the appellant failed to take the usual first step in proceedings of this kind in the Magistrates Court, namely to make a request that the action be listed for a pre‑trial conference, within the prescribed 14‑day period under the Rules. The appellant eventually made that listing application ‑ in February 2010 ‑ but only after the respondent applied for judgment in consequence of the appellant's default. A statement of the appellant's claim, particulars of it, and the respondent's defence, were not filed until March and April 2010. Discovery was not provided by the parties until September 2010. In December 2010, the respondent made an application for a preliminary hearing to deal with his contention that the action should be dismissed because it was commenced outside the limitation period. That application was dismissed on 4 February 2011, without any determination of the limitation issue. On 4 February 2015, the respondent's solicitors wrote to the Principal Registrar of the Magistrates Court requesting confirmation that the action had been deemed inactive under the Rules, and that it had been dismissed. By a notice dated 17 February 2015, the Magistrates Court sent the solicitors for the respondent a 'Notice that Case is on the Inactive Cases List' (Notice). It appears that the Notice was sent to the appellant's former solicitors at about the same time. However, that firm had ceased to act for the appellant in January 2011 (after which time the appellant acted for himself in the action). The appellant's former solicitors forwarded the Notice to the appellant on 15 July 2015.

Ratio Decidendi

Legal Principle Established

In so far as the learned Magistrate concluded that the Application was remitted for rehearing, but that it was not open to the Court to admit the additional affidavit on the rehearing, that conclusion was erroneous. In contrast to a hearing de novo, where the matter is heard afresh and a decision is given on such evidence as is presented at the hearing,[43] a rehearing does not involve a completely fresh hearing of all the evidence. However, that does not mean that on a rehearing no additional evidence may be received. Even when a court hears an appeal by way of rehearing, the court proceeds 'on the basis of the record and any fresh evidence that, exceptionally, it admits'.[44] There is no warrant for taking any narrower view of the powers of a court at first instance which is directed to rehear an application.[43] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] (Gleeson CJ, Gaudron & Hayne JJ); see also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [20] ‑ [22]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ); Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 125 (Dawson J).[44] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [22]. The Magistrates Court has a range of powers to control and manage the cases before it. Relevantly for present purposes, the Court has the power to order parties to do anything that in the Court's opinion will or may facilitate the case being conducted and concluded efficiently, economically and expeditiously; and the power to take any other action or make any other order for the purpose of complying with the requirement to ensure that cases are dealt with justly.[45] In our view, it was open to the learned Magistrate to admit the additional affidavit in the exercise of these powers. There is nothing in the Rules which excludes or limits the exercise of these powers in relation to an application to remove a case from the IC List, or in relation to a rehearing pursuant to a remittal order made by an appeal court.[46] [45] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 13 and s 16(1).[46] Cf Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 95D, r 109(1) and (2), r 110, r 111(1). In so far as the learned Magistrate accepted that he had a discretion to admit the additional affidavit, his Honour made no reference to the matters which had been raised by counsel in relation to the exercise of that discretion. Instead, his Honour simply concluded that it would not be 'appropriate' to permit the additional evidence to be adduced. In our respectful view, that bald conclusion suggests that the learned Magistrate did not properly turn his mind to the factors that were relevant to the exercise of the discretion. That constituted an error by the learned Magistrate. Consequently, in dismissing the first ground of the appeal before him, the learned appeal judge fell into error. On an appeal, this Court has the power to make any order that the Magistrates Court could have given or made.[47] In all of the circumstances, it is appropriate for this Court to deal with the admission of the additional affidavit. We would admit the additional affidavit, for four reasons.[47] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 43(7)(b).