Thorpe v Schulz - [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

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.

Factual background

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.
We will refer to the Application, and its outcome, in more detail later in these reasons. Before doing so, however, it is appropriate to mention one further matter. The evidence before the Court on this appeal discloses that, at some stage after early 2002, the appellant lodged a caveat on the title of some land registered in the name of the respondent's mother (Land). It appears that the appellant claimed an interest in the nature of a charge over the Land, pursuant to a retainer said to have been signed by the respondent and his parents, by which they guaranteed the payment of legal fees under the retainer. In March 2010, the appellant filed an originating summons in the Supreme Court and obtained an order extending the operation of the caveat. The respondent's mother has since passed away. The respondent is the executor of her estate, pursuant to a grant of probate in July 2012. The respondent has been unable to conclude the administration of his mother's estate, because the caveat precludes him from dealing with the Land.

The statutory framework for the IC List

As the issues on this appeal concern the operation of the provisions of the Rules which govern the IC List, it is convenient to set out those Rules in full. They provide:
95A.Term used: Inactive Cases List
In this Part ‑
Inactive Cases List means the list kept by the Principal Registrar under rule 95B(4).
95B.    Case taken to be inactive
(1)If no procedural step is taken in a case for 12 months by a party to a case, the case is taken to be inactive unless the Court orders otherwise.
(2)A magistrate or registrar making an order or direction in exercise of a case management power may direct that, unless the order or direction in exercise of the case management power is complied with by a specified date, the case is to be taken to be inactive.
(3)Unless countermanded by a magistrate or registrar before it has effect, a direction made under subrule (2) has effect according to its terms.
(4)The Principal Registrar is to keep a list of cases taken to be inactive.
95C.    Parties to be notified of case being on Inactive Cases List
(1)When a case is taken to be inactive under rule 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 ‑
(i)the fact that the case is on the Inactive Cases List and why; and
(ii)the effect of rule 95D.
(2)If a lawyer representing a party receives a notice under subrule (1), the lawyer is to notify the party as soon as practicable of ‑
(a)the fact that the case is on the Inactive Cases List and why; and
(b)the effect of rule 95D.
95D.    Consequences of case being on Inactive Cases List
The only documents that may be lodged in the Court in relation to a case on the Inactive Cases List are ‑
(a)an application for an order under rule 95E; or
(b)a notice of discontinuance under rule 29; or
(c)a memorandum of consent under rule 53 to an order or judgment that would finally dispose of the case.
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.
95F.     Certain inactive cases taken to be dismissed
(1)A case that is on the Inactive Cases List for 6 continuous months is taken to be dismissed.
(2)If no procedural step is taken in the 6 months after the date on which a case is ordered to be taken off the Inactive Cases List, the case is taken to be dismissed.
(3)If the case is taken to be dismissed under subrule (1) or (2), the Principal Registrar is to take it off the Inactive Cases List.
(4)If a case is taken to have been dismissed under subrule (1) or (2) ‑
(a)a party to the case may apply for an order for costs; and
(b)the Court may make an order for costs.

The Application

The Application was filed by the appellant on 17 July 2015. In it, the appellant sought an order abridging the time for the service and hearing of the Application, and an order that the action be removed from the IC List.
The appellant filed an affidavit in support of the Application. It was four paragraphs long. The appellant deposed:[2]
1.I am the claimant in this case.
2.I make this affidavit in support of an application for an order that the case be taken off the Inactive Cases List pursuant to [r] 95E(2)(a).
3.Notice that the Case is 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.
[2] Appellant's affidavit sworn 17 July 2015.

Magistrate Boon's decision

The Application was heard by Magistrate Boon on 3 August 2015. The appellant acknowledged that he had received a copy of the Notice, albeit 'only recently' but accepted that nothing turned on that.[3] He submitted[4] that the action had
been asleep for some time. There has been no contumelious disregard or breach of orders. It has just been asleep. There are a lot of reasons for that, but what I tell the court in my affidavit is that I intend now to proceed with it in a timely manner and that I will seek a listing conference.
[3] ts 2 (3 August 2015).
[4] ts 2 (3 August 2015).
The appellant submitted that he was unable to provide any further explanation for the delay in progressing the action because '[r] 95E prohibits me from filing any document other than this application'.[5]
[5] ts 8 (3 August 2015).
In dismissing the Application, Magistrate Boon rejected the appellant's claim that the Rules did not permit him to provide an explanation for the delay in progressing the action.[6] Her Honour concluded that she was not satisfied the action would be conducted in a timely way if taken off the IC List. In reaching that conclusion, she considered the appellant's evidence that he intended to proceed with the action in a timely manner, in light of the manner in which the appellant had conducted the action prior to that point. Magistrate Boon was[7]
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. … It's been anything but timely up till now.
[6] ts 11 (3 August 2015).
[7] ts 11 ‑ 12 (3 August 2015).
In addition, her Honour concluded that no material had been put forward by the appellant to establish that there was 'any other good reason' why the action should be taken off the IC List.[8]
[8] ts 11 (3 August 2015).

The appeal to the District Court from Magistrate Boon's decision

The appellant appealed to the District Court against Magistrate Boon's dismissal of the Application. His grounds of appeal included that Magistrate Boon had failed to properly consider whether the action would be conducted in a timely way in the future, that that requirement could be satisfied by the Court imposing a condition upon any order that the case be taken off the IC List, and that Magistrate Boon had failed to take into account the prejudice suffered by the appellant as a result of the Court's failure to comply with the proper procedure for entering a case onto the IC List (in that the Notice had been sent to his former solicitors).
McCann DCJ upheld the appeal. His Honour rejected the appellant's contention that he was prejudiced by the Court's failure to send the Notice to him, rather than his former solicitors. He concluded that the appellant received notice that the action was on the IC List in sufficient time to seek relief pursuant to r 95E, and that the Application was determined on its merits.[9] His Honour also rejected the appellant's contention that a case could be removed from the IC List on a conditional basis. His Honour held that there was no power in the Rules to do so.[10] However, his Honour accepted that in determining whether to take a case off the IC List pursuant to r 95E(2)(a), the Court was required to consider the powers available to it under the Rules to ensure compliance with any programming orders. His Honour noted that those powers included the power to make orders such as springing orders for the dismissal of a case in the event of noncompliance with programming orders, which could be made to ensure that a case would be conducted in a timely fashion in the future.[11] (For ease of reference, we will refer to the Magistrates Court's powers of this kind, under the Rules, as its contingent sanctions powers.)
[9] Thorpe v Schulz [2015] WADC 149 [59].
[10] Thorpe v Schulz [2015] WADC 149 [62].
[11] Thorpe v Schulz [2015] WADC 149 [63] ‑ [66].
McCann DCJ held that Magistrate Boon erred in that she had focused solely on how the appellant was likely to conduct the case in the future, based on his past conduct, and failed to take into account the potential impact of the Court's contingent sanctions powers, if the action were taken off the IC List.[12] However, his Honour declined to express his opinion as to the overall merit of the Application, or as to what its outcome should be if all relevant matters were considered.[13] Instead, his Honour considered it appropriate that the Application be re‑determined in the Magistrates Court. His Honour therefore ordered that Magistrate Boon's decision be set aside, and that the Application be remitted to the Magistrates Court to be re‑heard and determined by a different magistrate.[14]

The additional affidavit evidence on which the appellant sought to rely at the hearing before Magistrate Temby

[12] Thorpe v Schulz [2015] WADC 149 [69], [77] ‑ [79].

[13] Thorpe v Schulz [2015] WADC 149 [89].

[14] Thorpe v Schulz [2015] WADC 149 [91].

Upon the remittal of the Application to the Magistrates Court it was listed before Magistrate Temby (the learned Magistrate).
On 2 February 2016, the appellant swore a further affidavit in support of the Application (the additional affidavit). The additional affidavit was four paragraphs long. The appellant deposed:[15]
1.I am the claimant in this case.
2.I make this further affidavit in support of my re-listed application for an order that the case be taken off the Inactive Cases List pursuant to [r] 95E(2)(a) - now scheduled for hearing on February 12, 2016.
3.As I previously deposed in my affidavit sworn July 17, 2016, if the case is reactivated I intend to proceed with the claim in a timely manner and to seek a Listing Conference at the earliest opportunity. To that end I have prepared a witness statement to be used in the proceedings which is annexed hereto marked with the letters 'AT‑1'. Subject to advice from my solicitors I expect to be the only witness for the claimant.
4.I have also instructed Guy Douglas of Douglas Cheveralls Lawyers to take‑over the conduct of the action on my behalf. Several extensive (unrelated) litigation proceedings in which I was involved between 2006 and last year have now been resolved and I am in position to give prompt instructions to my solicitors to keep the matter moving.
[15] Appellant's affidavit sworn 2 February 2016.
Annexed to the additional affidavit was a draft witness statement outlining the evidence the appellant proposed to give in any trial of the action.
The Application was listed for hearing before the learned Magistrate on 29 April 2016. At that hearing the appellant's counsel sought to rely on the additional affidavit. He submitted that the hearing was not a 'rehearing' of the Application, but a 'new hearing' and accordingly, that the Court was not limited to a reconsideration of the evidence before Magistrate Boon and that the appellant was entitled to file the additional affidavit.[16]
[16] ts 2 - 3 (29 April 2016).
However, it is apparent from the transcript of the hearing on 29 April 2016 that counsel for the appellant also sought to have the Court admit the additional affidavit in the exercise of its discretion. Counsel for the appellant submitted that the Court had to consider the circumstances in which it would admit the additional affidavit[17] and that the Court had to determine whether 'to exercise the discretion to hear that new evidence'.[18] In support of his submission that the appellant should be permitted to rely on the additional affidavit, counsel for the appellant relied on observations made by McCann DCJ to the effect that it would have been desirable if the appellant had put material before the court indicating his readiness to go to trial, and annexing proofs of evidence.[19]
[17] ts 21 (29 April 2016).
[18] ts 22 (29 April 2016).
[19] ts 3 ‑ 4 (29 April 2016); see Thorpe v Schulz [2015] WADC 149 [74].
It is clear that counsel for the respondent appreciated that the appellant's submissions amounted to an application to adduce the additional affidavit in the exercise of the Court's discretion, and he responded on that basis. Counsel for the respondent accepted that the Court had a discretion whether to receive the additional affidavit.[20] However, he submitted that the appellant bore the onus of persuading the Court that he should be permitted to rely on the additional affidavit and that, in doing so, the appellant would need to explain why the additional affidavit was not before the Court at the first hearing.[21] He submitted that the appellant had to satisfy the Court that there were 'good and proper reasons as to why the evidence on this rehearing should be enlarged to deal with that evidence and the submission we make is there's no good reason given'.[22] Counsel for the respondent then went on to submit that even if the additional affidavit were admitted, it did not advance the appellant's case, because it failed to provide any adequate explanation for the four year delay in progressing the action.[23]

Magistrate Temby's decision

[20] ts 13 (29 April 2016).

[21] ts 12 (29 April 2016).

[22] ts 16 (29 April 2016).

[23] ts 16 (29 April 2016).

Following the hearing on 29 April 2016, the learned Magistrate delivered oral reasons for decision on 20 May 2016.
The learned Magistrate commenced by considering whether the appellant should be permitted to rely on the additional affidavit in support of the Application. His Honour framed the issue for determination in the following way:[24]
Since the District Court upheld the appeal, further evidence has been filed. This brings up the initial question, namely, is the matter before me a rehearing or a new hearing? Do I make a decision based on what her Honour had before her on 3 August 2015 or do I admit the affidavit of the [appellant] dated 2 February 2016?
[24] ts 3 (20 May 2016).
After referring to the parties' submissions on the question whether the matter was a rehearing or a new hearing, his Honour concluded:[25]
I'm persuaded that this is not a new hearing. Judge McCann, in his reasons, referred to the matter being reheard. I am not persuaded that it would be appropriate to permit further evidence to be adduced.
[25] ts 4 (20 May 2016).
His Honour then set out the lengthy history of the Application, and considered the reasons for decision of McCann DCJ. His Honour then concluded:[26]
The past history is helpful in making an assessment in how this case may be conducted going forward.
A line can be drawn from this. Also, the scarcity of information contained in the [appellant's] supporting affidavit … which he had filed two days after becoming aware of the inactive case listing, and even if he was anxious to commence his application under the rule 95 regime to protect his position, it would have been appropriate within the next four weeks that followed to have enhanced his position by detailing how he was going to conduct the litigation in the future.
The combination of both of these factors, that is, the delay and the scarcity of information, leads me to conclude that orders made to ensure compliance with court orders would not be adhered to by the applicant. I am therefore not persuaded that the court orders to control the litigation, not merely on the state of intentions of the applicant, are necessarily likely to achieve the intended outcome of the legislation, namely for the timely resolution of the case.
Even if a springing order was put in place, there is simply no evidence before me on this point. For these reasons, I have come to the conclusion that the application should be dismissed.
[26] ts 7 (20 May 2016).
In view of that conclusion, counsel for the respondent made an application for an order that the appellant pay the respondent's costs of the Application. He also applied for an order that the appellant pay the respondent's costs of the action as a whole (the costs order). Counsel for the respondent did not explain the basis on which he sought the costs order.
Counsel for the appellant indicated that he had 'not had an opportunity to obtain instructions in relation to the cost of the matter as a whole',[27] but he did not dispute that it was open to the Court to make the costs order.
[27] ts 9 (20 May 2016).
In relation to the respondent's application for the costs order, the learned Magistrate's reasoning was confined to an observation which was not fully transcribed:[28]
I think (indistinct) ample (indistinct) for the conclusion that with the event go costs.
[28] ts 9 (20 May 2016).
The learned Magistrate then made the following orders:
1.The application is dismissed;
2.The applicant pay the respondent's costs of and incidental to this application to be assessed, if not agreed; and
3.The claimant pay the defendant's costs of and incidental to the claim, to be assessed if not agreed.

The appeal to the District Court from the decision of Magistrate Temby

The appellant appealed to the District Court against the orders made by Magistrate Temby. There were five grounds of appeal, which in summary were that the learned Magistrate:
(i)erred in failing to admit the additional affidavit on the basis that the hearing was a rehearing, and without considering the principles applicable to the admission of further evidence;
(ii)erred in making a finding that orders to ensure compliance with future court orders would not be adhered to by the appellant, when there was insufficient evidence to support such a finding;
(iii)erred in failing to take into account or give sufficient weight to the finding by McCann DCJ that the Magistrates Court had the power to require the appellant to comply with strict programming orders and if necessary to use sanctions (such as a springing order) to ensure compliance with the timely conduct of the case;
(iv)erred in law in misapprehending the impact of possible orders of that kind, because he found that the appellant would not adhere to such orders;
(v)erred in failing to consider whether the manner in which the case was placed on the IC List amounted to 'any other good reason' for its removal from the IC List.
The costs order was not the subject of any ground of appeal.

The decision of Judge O'Neal

O'Neal DCJ (the learned appeal judge) heard the appeal on 18 November 2016 and delivered his reasons for decision extemporaneously. His Honour dismissed the appeal.
In relation to the first ground of appeal, the learned appeal judge noted that a rehearing was typically conducted on the basis of the material before the Court at the primary hearing, unless an order were made for the admission of fresh evidence. He observed that when the Application was re-heard in the Magistrates Court, the appellant's view was that he was entitled to rely on the additional affidavit as of right, and that he did not make an application for the court to receive it as fresh evidence. The learned appeal judge held that in the absence of such an application, the Magistrate did not err in acting only on the basis of the affidavit which was originally before Magistrate Boon.[29]
[29] ts 47 (18 November 2016).
As for the appellant's second ground - that there was no evidence to support the Magistrate's finding that the appellant would not conduct the action in a timely way in the future (even if the Court exercised its contingent sanctions powers) ‑ the learned appeal judge held that the history of the matter, together with the absence of any explanation for the previous delay and the lack of any detailed evidence, provided a proper basis for the conclusion drawn by the learned Magistrate.[30]
[30] ts 50 (18 November 2016).
In so far as the third ground was concerned, the learned appeal judge concluded that the learned Magistrate had considered the Court's contingent sanctions powers. In any event, his Honour held that the existence of such powers, alone, could not 'mandate the restoration of an otherwise unworthy matter to the active list'.[31]
[31] ts 50 (18 November 2016).
In relation to the fourth ground, the learned appeal judge rejected the appellant's contention that the learned Magistrate had misapprehended the potential impact of the Court's contingent sanctions powers, such that if the Court made a springing order and that order was not complied with, there would be a timely resolution of the case, by its dismissal. His Honour concluded that that contention 'overlooks the entire point of provisions such as the [IC List] for the management of increasing case loads with decreasing resources'.[32]
[32] ts 51 (18 November 2016).
Finally, the learned appeal judge held that the learned Magistrate did not fail to consider whether the fact that the Notice was sent to the wrong address amounted to an 'other good reason' for taking the action off the IC List. His Honour appears to have understood the substance of the ground as directed to explaining that any deficiencies in the Application were attributable to the late receipt of the Notice. His Honour held that the learned Magistrate had taken that consideration into account but was not persuaded that any prejudice to the appellant had arisen from his late receipt of the Notice. His Honour went on to note that even the additional affidavit offered 'no coherent explanation for the delay'[33] in prosecuting the action and concluded that[34]
in all of the circumstances here, given the time that the appellant had, abbreviated as it was, and given the forceful notice of the deficiency in his affidavit material given to him by Magistrate Boon, Magistrate Temby made no error by failing to accept the abbreviated notice time as any other good reason within the provisions of [r] 95E(2).
[33] ts 52 (18 November 2016).
[34] ts 52 (18 November 2016).
The learned appeal judge made the following orders:
1.The Appeal be dismissed.
2.The Appellant to pay the Respondent's costs to be taxed, if not agreed.

Grounds of appeal

The appellant's grounds of appeal to this Court are:
1.The Learned Judge erred in law in failing to find that the Learned Magistrate was required to, and failed to, exercise his discretion on the question of whether further evidence should be admitted on the hearing of the appellant's application to remove the case from the Inactive Cases List, as:
a.the appellant indicated an intention to rely on his affidavit sworn 2 February 2016 at the hearing before the Learned Magistrate;
b.upon deciding the hearing was not a new hearing, the position was that the Learned Magistrate had a discretion whether to receive further evidence; and
c.the Learned Magistrate failed to exercise his discretion and instead, having found that the hearing was not a new hearing, treated that finding as determinative of the question of whether further evidence should be received.
2.In the alternative to ground 1, the Learned Judge erred in law in failing to find that the Learned Magistrate failed to give adequate reasons when exercising his discretion on the question of whether further evidence should be admitted on the hearing of the appellant's application to remove the case from the Inactive Cases List.
3.The Learned Judge erred in law in failing to find that the Learned Magistrate had erred when considering whether the case, if taken off the Inactive Cases List, would be conducted in a timely way as:
a.the Learned Magistrate reached his decision relying on a finding that the appellant would not comply with future court orders;
b.that finding was based on the delay in the proceedings and the 'scarcity' of information detailing how the appellant was going to conduct the litigation in the future;
c.that finding could not be upheld in circumstances where:
i.those matters could not sustain a finding that the appellant would not comply with future orders;
ii.the appellant had sworn on oath as to how he was going to conduct the action in the future - by requesting a listing conference; and
iii.the delay was not contumelious, the appellant was not in breach of any court orders and there was no evidence that the respondent had taken issue with the delay;
d.the Learned Magistrate recognised that he was required to take into account the possible impact of programming orders and other orders to enforce compliance, but then did not consider the impact of a springing order because he stated there was no evidence on this issue; and
e.the impact of a springing order is not something requiring evidence and would self-evidently mean that if the appellant did not comply with the order then the case would be dismissed.
4A.The Learned Judge erred in law in failing to find that the Learned Magistrate had erred when failing to:
a.consider whether the case should, pursuant to r 95E(2)(b) of the Magistrates Court (Civil Proceedings) Rules 2005 (Rules), be removed from the Inactive Cases List for 'any other good reason'; and
b.find that the failure by the Principal Registrar of the Magistrates Court to issue to the appellant a notice pursuant to r 95C(l)(b) of the Rules amounted to .a good reason, as such a notice is a precondition to the deemed dismissal of the case under r 95F(l) and without such a notice the case could remain on the Inactive Cases List indefinitely.
4.The Learned Judge erred in law in failing to find that the Learned Magistrate had erred by ordering that the appellant pay the costs of and incidental to the claim as:
a.the Principal Registrar of the Magistrates Court had not issued to the appellant a notice pursuant to r 95C(1)(b) of the Rules that the case was on the Inactive Cases List;
b.a notice pursuant to r 95C(l)(b) of the Rules is a precondition to the deemed dismissal of the case under r 95F(l); and
c.in the circumstances, the dismissal by the Learned Magistrate of the appellant's application to remove the case from the Inactive Cases List did not mean the case was dismissed.

Ground 1 of the grounds of appeal

Ground 1 is concerned with the admission of the additional affidavit. As we have noted, the learned appeal judge held that counsel for the appellant sought to rely on the additional affidavit as of right (on the basis that the learned Magistrate was conducting a fresh hearing of the Application).[35] The learned appeal judge held that counsel did not make an application that the additional affidavit be admitted in the exercise of the court's discretion.[36] The learned appeal judge concluded that in the absence of any such application, there was no error by the learned Magistrate in determining the Application solely by reference to the appellant's original affidavit. In essence, ground 1 contends that that conclusion was erroneous because counsel for the appellant did seek to have the additional affidavit admitted into evidence in the exercise of the court's discretion, and the learned Magistrate failed to exercise his discretion as to whether to admit the additional affidavit.
[35] ts 47 (18 November 2016).
[36] ts 47 (18 November 2016).
Ground 1 is made out, for the following reasons.
First, in our respectful view, the learned appeal judge erred in his conclusion that there was no error by the learned Magistrate in proceeding solely on the basis of the appellant's original affidavit, because counsel for the appellant had not made an application to rely upon the additional affidavit. At the hearing of the appeal, counsel for the appellant noted that the learned appeal judge had not been provided with a copy of the transcript of the hearing before the learned Magistrate on 29 April 2016.[37] It is regrettable that the learned appeal judge did not have the benefit of that transcript, which demonstrates that his Honour's conclusion as to what had occurred at the hearing before the learned Magistrate was erroneous.
[37] Appeal ts 14 (15 September 2017).
There is no doubt that the primary basis on which the appellant sought to rely on the additional affidavit was that the hearing before the learned Magistrate was a 'new hearing' (that is, a hearing de novo) of the Application under r 95E of the Rules.[38] However, it is apparent that counsel for the appellant also sought to have the Court admit the additional affidavit in the exercise of its discretion. Although not expressly framed as an oral application to adduce further evidence on the rehearing of the Application, in our view the passages to which we referred above (at [23]) leave no doubt that that was what counsel for the appellant sought to do. As we noted at [24], counsel for the respondent understood, and responded to, the appellant's submissions on that basis.
[38] ts 2 ‑ 3 (29 April 2016).
Secondly, in our respectful view, the learned appeal judge erred in failing to find that the learned Magistrate had erred in refusing to admit the additional affidavit. The learned Magistrate's reasons for that part of his decision are not entirely clear. The learned Magistrate simply concluded that it 'would not be appropriate' to permit the appellant to rely on the additional affidavit. It appears that either the learned Magistrate concluded that it was not possible to admit the additional affidavit on a rehearing of the Application, or alternatively that he failed to properly consider and determine the appellant's application, which was implicit in his counsel's submissions, that the Court should receive the additional affidavit in the exercise of its discretion. On either view, in our respectful opinion, the learned Magistrate fell into error, and the learned appeal judge erred in dismissing the first ground of the appeal before him.
On an appeal from the Magistrates Court, the powers of the District Court include the power to confirm, vary or set aside all or a part of the Magistrates Court judgment, give any judgment and make any order that the Magistrates Court could have given or made, and relevantly for present purposes to order a new hearing in, or trial of, the case to be held in the Magistrates Court, or to make any orders that are necessary as a result of other orders it has made.[39] Those powers clearly permit an appeal court to remit a matter to the Magistrates Court for either a new hearing or a rehearing.
[39] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 43(7)(c) and (f).
A court to which a matter is remitted cannot make any order nor undertake any task inconsistent with the order of remittal.[40] In order to determine the scope of authority of the primary court to deal with a matter remitted to it, it is therefore necessary to ascertain precisely what was remitted by the appeal court.[41] When an appeal court remits a matter to the primary court without any qualification or condition (that is, the remittal is unlimited), the effect of that remittal is that the primary court is obliged to determine all questions of fact and law arising in the matter and is not obliged to make the same findings as it made on the first occasion.[42] In other words, the court conducts a fresh or new hearing. However, if the appeal court places limits on the hearing below, or gives directions as to how the remitted hearing is to be conducted, the primary court must comply with those limits or directions.
[40] Peacock v DM Osborne & Co [1907] HCA 42; (1907) 4 CLR 1564, 1567 ‑ 1568 (Griffith CJ); R v Weiss (No 2)[2006] VSCA 161; (2006) 164 A Crim R 454, 472 [99] ‑ [102] (Maxwell P, Vincent & Nettle JJA); R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45, 52 ‑ 53 [28] (Allsop P & Johnson J, Spigelman CJ, Kirby & Howie JJ agreeing).
[41] R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45, 52 [27] (Allsop P & Johnson J, Spigelman CJ, Kirby & Howie JJ agreeing).
[42] Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518, 522 ‑ 523 [7], 525 [16] (Gleeson CJ), 533 [45] (McHugh J), 539 [67] (Gummow & Hayne JJ), R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45, 53 [29] ‑ [30] (Allsop P & Johnson J, Spigelman CJ, Kirby & Howie JJ agreeing).
The learned Magistrate correctly identified the need to determine whether the hearing of the Application was a rehearing or an entirely new hearing, by reference to the order made by McCann DCJ. In the present case, McCann DCJ did not simply remit the Application to the Magistrates Court, but instead ordered that there be a 'rehearing' of the Application. That order was consistent with his Honour's conclusion that it was necessary for the Application to be remitted to the Magistrates Court to permit consideration of how the existence of the Magistrates Court's contingent sanctions powers might impact on the overall exercise of the Court's discretion under r 95E. However, the terms of the remittal order were not entirely free from ambiguity, because McCann DCJ also ordered that the Application be reheard by a different Magistrate. That part of the order tends to suggest that his Honour intended that the Application should be heard afresh. It is not necessary for present purposes to determine whether the Application was remitted for a new hearing or a rehearing. If the effect of the remittal order was that the Application was to be heard afresh, then the appellant was entitled to rely on the additional evidence. If, on the other hand, the remittal order required a rehearing of the Application, the learned Magistrate had a discretion to admit the additional evidence.

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).
First, the additional affidavit contained some further evidence relevant to the exercise of discretion under r 95E(2) ‑ namely some further explanation for the appellant's delay in prosecuting the action, together with evidence as to his claimed readiness to proceed to trial.
Secondly, although no direct evidence was given by the appellant as to his reasons for failing to provide that evidence prior to the hearing before Magistrate Boon, some explanation was given by the appellant at the hearing before Magistrate Boon ([13] above). It appears that the appellant was acting under the misapprehension that the Rules (that is, r 95D) precluded him from filing anything other than the Application,[48] or the Application together with an affidavit which addressed only his intention to proceed in a timely fashion in the future.
[48] ts 7 ‑ 8 (3 August 2015).
Thirdly, the reasons for decision given by McCann DCJ made clear that it would have been desirable for the appellant to have 'condescended to particulars of his readiness to go to trial' and that he might have 'stated that his witnesses had been proofed and even annexed the proofs of evidence to his affidavit'.[49] The appellant clearly sought to rely on the additional affidavit in response to his Honour's observations.
[49] Thorpe v Schulz [2015] WADC 149 [74].
Fourthly, there was no suggestion that the respondent would suffer any prejudice by the admission of the additional affidavit. It was apparent that counsel for the respondent was in a position to make submissions in relation to the additional affidavit, and he did so.[50]
[50] ts 13, 18 (29 April 2016).
Ground 1 of the grounds of appeal should therefore be upheld. The additional affidavit should have been admitted in evidence for the purposes of the Application. That conclusion necessitates a reconsideration of the Application as a whole, taking the additional evidence into account. Consequently it is unnecessary to deal with grounds 2, 3 and 4A of the grounds of appeal.
As we have already noted, it is open to this Court to make any order that the Magistrates Court could have made in respect of the Application. Rather than remit the Application to the Court below for yet another hearing, it is appropriate that this Court (which has the necessary material) exercise the discretion under r 95E of the Rules.

Reconsideration of the Application

Having regard to the material before the learned Magistrate, and to the contents of the additional affidavit, we are not satisfied that the action would be conducted in a timely way in the future if an order were made that the action be taken off the IC List. Nor are we persuaded that there is 'any other good reason' why the action should be taken off the IC List. We have reached those conclusions for the following reasons.
First, in light of the appellant's past conduct of the action, the Court can have no confidence that he would conduct the action in a timely fashion in the future. The appellant did not provide any adequate explanation for his failure to progress the action between 2011 and 2015. In his first affidavit he provided no explanation at all. The explanation he advanced in the course of his submissions before Magistrate Boon ‑ that the action had 'simply been asleep'[51] ‑ was not an explanation. Of even greater significance is that in the additional affidavit, when he had another opportunity to explain his failure to progress the action, the appellant again did not offer any adequate explanation.
[51] ts 9 (3 August 2015).
Although the appellant is no longer practising as a solicitor, he was a solicitor for many years. The modern approach to case management recognises that undue delays have implications well beyond the individual litigants in an action, and that litigation therefore cannot be conducted at an indulgently leisurely pace.[52] The appellant's delay in progressing the action therefore cannot be explained (and certainly cannot be excused) by a claim to ignorance of what is expected of a litigant in the proper and timely conduct of litigation.
[52] See, generally, Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 189 [24] (French CJ).
Some explanation for the appellant's delay might, perhaps, be inferred from his evidence, in the additional affidavit, that 'several extensive (unrelated) litigation proceedings in which I was involved between 2006 and last year have now been resolved and I am in position to give prompt instructions to my solicitors to keep the matter moving'.[53] However, even if that evidence is viewed in its best light, it suggests nothing more than that the appellant was too preoccupied with other matters to give any attention to this action. That is a wholly unsatisfactory explanation for the delay. It is certainly not an explanation which would constitute an 'other good reason' for taking the action off the IC List.
[53] Appellant's affidavit sworn 2 February 2016.
Secondly, although the action is a simple one, it is apparent that it is still not ready for trial. In the additional affidavit, the appellant deposes that he expects to be the only witness called in support of the action. However, the appellant's draft witness statement, which is attached to his affidavit, does not adequately address the evidence that the appellant would need to adduce to establish his cause of action at trial. Counsel for the appellant accepted that that was so.[54] By way of example, the draft witness statement does not set out any evidentiary basis for the respondent's liability for the legal fees claimed. It does not annexe a copy of any retainer agreement (which it appears may have been in writing) nor does it set out the terms of any agreement between the appellant and the respondent by which the respondent agreed to pay the appellant for legal services and when that was to be done, nor does it identify precisely when the legal services in question were performed, or any particulars of the services performed, the number of hours of work involved, the rate charged, or how the total amount claimed was calculated. Further, the draft witness statement does not respond to the issues raised in the respondent's defence, nor does it provide any evidentiary support for the conclusion that the action was brought within the limitation period. Finally, it does not annexe, or refer to, any documentary evidence which might substantiate the appellant's claims.
[54] Appeal ts 7 (15 September 2017).
Thirdly, the fact that the Magistrates Court has contingent sanctions powers, which may be used to facilitate the timely conduct of litigation, does not assist the appellant in the circumstances of this case. The existence of such powers is not, of itself, a sufficient basis on which to conclude that a case will be conducted in a timely fashion if taken off the IC List, nor does it constitute an 'other good reason' for taking a case off the IC List. (Were that not so, no application for a case to be removed from the IC List could ever be refused.) In our view, in circumstances where the evidence provides at least some support for the conclusion that a case should be removed from the IC List, the existence of the Magistrates Court's contingent sanctions powers may provide the court with a further degree of comfort that if the case is removed from the IC List, it will be conducted in a timely way. However, this was not a case of that kind.
Finally, although the appellant did not receive the Notice until several months after it was issued, the appellant did not claim that he had been denied any, or any adequate, opportunity to make an application under r 95E of the Rules. Consequently, in this case is it unnecessary to consider whether a failure by the Principal Registrar of the Magistrates Court to give a plaintiff written notice pursuant to r 95C(1)(b), proximately to the date on which a case is put on the IC List, has any effect on whether, and when, time commences to run for the purposes of r 95F(1) of the Rules.[55] In those circumstances, the delay in the service of the Notice in this case does not constitute an 'other good reason' for taking the action off the IC List.
[55] Cf Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [25], [37] (Newnes JA, Pullin & Murphy JJA agreeing); Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58 [16] ‑ [29] (Le Miere J); Leighton v Garnham [No 4] [2016] WASC 134 [37] ‑ [43] (Le Miere J); Lashansky v Legal Practice Board [No 2] [2010] WASC 159 [61], [72] ‑ [73] (Beech J); The Owners of Riviera Apartments v Wembley Lakes Estate Pty Ltd [2009] WASC 37 [11] (Master Sanderson).
Furthermore, we are not persuaded that the circumstances support the exercise of the court's overall discretion under r 95E to take the action off the IC List. In addition to the circumstances to which we have already referred, the following circumstances strongly weigh against the Court exercising that discretion favourably to the appellant.
First, to describe the action itself as stale would be a considerable understatement. Not only is the action itself stale, having been commenced nine years ago, but the underlying claims (assuming that they were not brought outside the limitation period) are for fees for legal services said to have been performed for the respondent over 15 years ago (for legal work said to have been performed between 1998 and 2002). The overall delay is egregious.
Secondly, the quantum of the fees the subject of the action is relatively modest. While the dismissal of the Application will mean that the appellant can no longer pursue the action, that outcome needs to viewed in context. The appellant was apparently content, for many years, not to pursue the fees he seeks to recover in the action, despite the action being a simple one.
Thirdly, the appellant's failure to provide an adequate explanation for the delay is of particular concern in circumstances where the appellant lodged a caveat over the title to the Land. That course of action gives rise to a sense of unease that the reason for the appellant's delay might have been the collateral benefit that he derived in not proceeding to trial, in the knowledge that the respondent or his mother may eventually accede to payment of the amount claimed by the appellant, in order to secure the removal of the caveat. In those circumstances, if the appellant wished to persuade the Court to exercise its discretion to permit him to pursue the action, it was incumbent upon him to provide a full and frank disclosure to the Court of the reason for his delay in progressing the action. Yet for reasons which are not apparent, he failed to do so.
For these reasons the Application, and the appeal to the District Court, were correctly dismissed.

Disposition of the balance of the appeal - ground 4 of the grounds of appeal

In light of that conclusion, the costs order made by the learned Magistrate does not inevitably need to be set aside. Consequently, we turn to consider ground 4 of the grounds of appeal, which is directed to the costs order made by the learned Magistrate.
As we noted at [31], the learned Magistrate made the costs order on the basis that costs of the action should follow the 'event'. His Honour did not expressly identify the 'event' that he had in mind. As we understand the appellant's submissions, his contention is that the 'event' that the learned Magistrate must have had in mind was the deemed dismissal of the action by virtue of the operation of r 95F(1) of the Rules (presumably on the basis that by the date of the hearing before Magistrate Temby, the action had been on the IC List for more than six months.)[56] The appellant contends that it was not open to the learned Magistrate to conclude that the action could be regarded as having been taken to be dismissed at that point, because the giving of a written notice, in compliance with r 95C(1), is a precondition to a deemed dismissal of a case under r 95F(1) of the Rules. The appellant further contends that that precondition was not satisfied in this case, because the Principal Registrar of the Magistrates Court did not give the Notice to the appellant.
[56] Appellant's Outline of Submissions [72].
The substance of ground 4 was not raised before the learned appeal judge. A party will only be allowed to raise a new point on an appeal in exceptional circumstances, and if two requirements are met: the interests of justice must require determination of the new point, and there must be no prejudice to the party against whom the new point is taken.[57] No exceptional circumstances have been shown to exist. Nor do the interests of justice require the determination of the issues the appellant now seeks to raise in ground 4, especially as we are not persuaded that the appellant has established any error in the learned Magistrate's exercise of his discretion in relation to the costs order.[58] Further, there was no appeal to the District Court against the costs order independently of the appeal against the dismissal of the Application.[59] The learned appeal judge cannot be said to have made any error of fact or law in failing to uphold a ground of appeal which was not before him. No miscarriage of justice has been established that might justify this Court in upholding the appeal on a ground not raised before the learned appeal judge.
[57] Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [52] (Martin CJ, Buss JA agreeing).
[58] Cf House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
[59] The Appeal Notice (Blue AB11) only refers to the dismissal of the Application. The grounds of appeal before the District Court (Blue AB16 ‑ 17) are concerned only with the dismissal of the Application.
As we have already observed, the appellant does not now dispute that he received the Notice, nor does he claim that the late receipt of the Notice denied him the opportunity to bring the Application and to have it heard within six months of the action being put on the IC List. In our view, it cannot be said that the Notice did not constitute a 'notice' for the purposes of r 95C(1) or that the appellant was not given the Notice.[60] Further, even if the appellant's receipt of the Notice some months after it was issued by the Principal Registrar is capable of giving rise to questions about the operation of r 95F(1), it is not necessary to resolve those questions for present purposes. That is because we are not persuaded that the learned Magistrate made the costs order on the basis that the dismissal of the Application meant that the action was, or would be, taken to be dismissed by virtue of the operation of r 95F(1).
[60] Cf Clack v Murray [2017] WASCA 88 [10] (Mitchell JA).
The issues underlying ground 4, including the operation of r 95F of the Rules, were not the subject of any determination by the learned Magistrate, as they did not arise for determination in relation to the Application itself. However, the operation of that rule was referred to in the course of the parties' submissions concerning the admission of the additional affidavit. In that context, one of the arguments advanced by counsel for the respondent was that if the remittal order made by McCann DCJ required a new hearing of the Application, then the court should treat the Application as having been made, afresh, after the action was dismissed by the operation of r 95F of the Rules. Counsel for the appellant disputed that the Rules operated in that way.[61] The learned Magistrate did not address those arguments or the operation of r 95F in his reasons. Furthermore, when counsel for the respondent applied for the costs order he did not refer to, nor rely upon, r 95F. It therefore cannot be inferred that the learned Magistrate made the costs order on the assumption that the dismissal of the Application would have the result, by virtue of the operation of r 95F, that the action itself was dismissed. In our view, it is equally open to conclude that the learned Magistrate made the costs order on the basis that the dismissal of the Application meant that the action was, for all practical purposes, permanently stayed.
[61] ts 7 (29 April 2016).
Under r 95D, once a case is put on the IC List, the only documents that may be lodged in the case are an application for an order to remove the case from the IC List, a notice of discontinuance of the case, or a memorandum of consent to an order that would finally dispose of the case. In this case, there was nothing to suggest that the appellant would file a notice of discontinuance or that the parties would consent to orders finally disposing of the action. Consequently, following the dismissal of the Application by the learned Magistrate, the effect of r 95D was that until such time (whenever that may be) as the action was taken to be dismissed under r 95F(1), the appellant could not take any further step in the action. In those circumstances, we are not persuaded that there was any error by the learned Magistrate in concluding that in that 'event' the appellant should pay the respondent's costs of the action as a whole. The learned Magistrate's wide discretion to make cost orders[62] clearly permitted an order of that kind.
[62] Magistrates Court (Civil Proceedings) Act 2004 s 25(1), (2), (4).

We note, for completeness, that r 95F(4) permits a party to apply for an order for costs, and for the Court to make an order for costs, after a case is taken to be dismissed under r 95F(1). The purpose of that rule is to avoid any argument as to whether costs may be sought, and ordered, notwithstanding that a case has been taken to be dismissed under r 95F. Nothing in that rule precluded the learned Magistrate from making the costs order in this case.
In any event, on the basis of our reasoning and conclusion in reconsidering the Application in the context of ground 1 of the grounds of appeal, the appellant would not suffer any injustice if the learned Magistrate's order for costs stands.
Ground 4 should be dismissed.

Conclusion and orders

For these reasons, although the appellant has made out ground 1, the appropriate order is that the appeal to this Court is dismissed. The parties should be heard in relation to costs.