Ward v West Coast Suzuki Marine Pty Ltd
[2021] WADC 37
•3 MAY 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WARD -v- WEST COAST SUZUKI MARINE PTY LTD [2021] WADC 37
CORAM: LEMONIS DCJ
HEARD: 18 DECEMBER 2020
DELIVERED : 3 MAY 2021
FILE NO/S: APP 60 of 2020
BETWEEN: BRETT WARD
Appellant
AND
WEST COAST SUZUKI MARINE PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE LEMMON
File Number : GCLM 469/2018
Catchwords:
Civil proceedings in the Magistrates Court - Case became inactive - Plaintiff obtained an order that case no longer be taken to be inactive - Defendant appeals against making of the order
Legislation:
Magistrates Court (Civil Proceedings ) Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr M I Handcock |
| Respondent | : | By its director, Mr Horsley |
Solicitors:
| Appellant | : | Effective Legal |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Brocklehurst v Wolinski [2015] WADC 36
Lashansky v Legal Practice Board (No 2) [2010] WASC 159
Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24
Thorpe v Schulz [2015] WADC 149
LEMONIS DCJ:
This appeal concerns delay in the conduct of a Magistrates Court civil claim.
The appellant is the defendant in the claim and the respondent is the claimant. The appellant previously worked for the respondent. The claim against the appellant alleges that the appellant took certain motors from the respondent's business without authority and without paying, and has retained them.
As a result of the delay in the conduct of the case, the claim became what is described in the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (Magistrates Court Rules) as an inactive case. The respondent applied pursuant to r 95E of the Magistrates Court Rules for an order that the case no longer be taken to be inactive. That application was successful, the learned magistrate making an order to that effect on 12 August 2020.
The appellant appeals against the decision of the learned magistrate to so order.
The appellant is represented by solicitors. At the hearing of the application before the learned magistrate and on this appeal, the respondent was represented by its director, Mr Horsley.
Nature of the appeal
The appeal is brought pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Magistrates Court Act).
An appeal from a decision of a magistrate to the District Court is by way of rehearing. It is not a hearing de novo. Given the appeal is by way of a rehearing it is necessary for the appellant to demonstrate error in the court below. This error must be a legal, factual or discretionary error.[1]
[1] Brocklehurst v Wolinski [2015] WADC 36 [14] - [15] and the authorities referred to in those paragraphs.
The appellant does not press grounds 1 and 2 of the grounds of appeal set out in his appeal notice dated 1 September 2020. The remaining grounds of appeal are to the effect that:
1.there was no evidence before the learned magistrate to justify a finding that the case in the Magistrates Court would be conducted in a timely way (ground 3); and
2.the learned magistrate erred in law by finding that the court's delay in issuing a notice as required by r 95C of the Magistrates Court Rules to the parties was a good reason to grant the order made (ground 4).
I will start by explaining the regime applicable to inactive cases.
Applicable regime
Part 16A of the Magistrates Court Rules sets out a specific regime addressed to cases that are taken to be inactive. Self-evidently, the regime is designed to deal with the consequences of delay in the conduct of Magistrates Court civil claims.
Pursuant to r 95B(1), unless the court orders otherwise, a case is taken to be inactive where no procedural step is taken for 12 months.
Pursuant to r 95C(1), when a case becomes an inactive case, the Magistrates Court is to give all parties to the case written notice that the case is an inactive case and explain the reasons why. Further, the notice is to set out the effect of r 95D.
Rule 95D sets out the documents that may be lodged in the court in relation to an inactive case. They are limited to an application for an order that the case is no longer taken to be inactive, a notice of discontinuance, or a memorandum of consent to an order or judgment that would finally dispose of the case.
Further, pursuant to r 95C(2), if a party who receives the relevant notice is represented by a lawyer, the lawyer is to notify the party as soon as practicable of the matters the subject of the notice.
Pursuant to r 95F where a case is an inactive case for 6 continuous months, it is taken to be dismissed. Further, if no procedural step is taken in the 6 months after the court orders that an inactive case is no longer taken to be inactive, the case is taken to be dismissed. Once a case is dismissed, the dismissal may only be set aside in exceptional circumstances.
The rule that falls for particular consideration here is r 95E. I set it out in full below:
Cases no longer taken to be inactive
(1)A party to an inactive case may apply to the court for an order that the case is no longer taken to be inactive.
(2)The court may order that an inactive case is no longer taken to be inactive -
(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 an inactive case is no longer taken to be inactive, it may make further orders for the conduct of the case in a timely way.
As can be seen, r 95E provides the court with a discretion to order that a case is no longer taken to be inactive where either or both of the criteria set out in r 95E (2)(a) or r 95E (2)(b) apply. Here, the learned magistrate was satisfied that both r 95E (2)(a) and r 95E (2)(b) were engaged.
It is also worth noting the terms of s 13 of the Magistrates Court Act. Section 13 requires the court to ensure that cases are dealt with justly, which includes ensuring:
1.that cases are dealt with efficiently, economically and expeditiously; and
2.that the court's judicial and administrative resources are used as efficiently as possible.
I now identify the principles applicable to an application pursuant to r 95E that the case is no longer taken to be inactive.
Applicable principles
In Lashansky v Legal Practice Board (No 2),[2] Beech J wrote the following in respect of a similar regime operative in the Supreme Court:
The evident scheme of pt 4 is that once a case is on the Inactive Cases List there is curial supervision of whether the case should be permitted to resume progress and, if not, after six months the action is effectively dismissed.
In exercising power under O 29A r 20(2) it will be relevant to inquire 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.
[2] Lashansky v Legal Practice Board (No 2) [2010] WASC 159 [73] - [74].
I consider his Honour's observations have application to the inactive cases regime in place in the Magistrates Court. Further, his Honour adopted previous remarks made by Master Sanderson in Swick Nominees Pty Ltd v Norncott Pty Ltd[3] where Master Sanderson observed that an application for removal from the inactive cases list should not be regarded as mechanical. I apply that observation here.
[3] Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24 [11].
In addition, as McCann DCJ observed in Thorpe v Schulz,[4] provisions relating to inactive cases lists are not intended to be punitive. I agree with that observation.
[4] Thorpe v Schulz [2015] WADC 149 [31].
I will now turn to the procedural history.
The procedural history and the hearing before the magistrate
The procedural history of the proceedings is as follows:
1.On 4 April 2018 the respondent commenced the claim.
2.On 26 April 2018 the appellant's solicitors filed a Form 15 response.
3.On 25 June 2020 the Magistrates Court issued a notice pursuant to r 95C of the Magistrates Court Rules.
4.On 9 July 2020 the respondent applied pursuant to r 95E of the Magistrates Court Rules for an order that the case no longer be taken to be inactive.
Against this procedural background, pursuant to r 95B(1), the case was taken to be inactive on 25 April 2019.
However, as can be seen from the history, the required notice pursuant to r 95C was not issued by the Magistrates Court until 25 June 2020. Furthermore, the notice itself states that the case will be dismissed for want of prosecution where 'the case remains inactive for six (6) continuous months'. It would not be clear to a reader of the notice, in particular a party that is not represented by lawyers, when that six month period commenced.
The hearing of the respondent's application for an order that the case no longer be taken to be inactive took place before the learned magistrate on 12 August 2020. It was relatively brief. This reflected the busy list before the learned magistrate on that day.
The learned magistrate delivered the following oral reasons:[5]
Ultimately, the test that I have to apply here, is a consideration as to whether I can be satisfied the case will be conducted in a timely way if I, in effect, reactivate it. Or if there's any other good reason. Now, looking at the content of any other good reason. The fact that the court has apparently not complied with its obligations to notify the parties until June of this year, is in my view, in that category. It's a good reason for me to allow the application.
But even applying the first part of the test, given the knowledge that Mr Horsley apparently now has about how he would conduct his claim. I'm satisfied that it's unlikely that there would be significant delay of the type that has - was occurred from April 2018 to now anyway. And that the claim can be pursued by him in a timely manner. That's to say nothing about the quality of the claim. That's not an issue for me to determine.
There can, of course, be applications by the defendant that addresses that issue, if the case becomes active again. Taking into account the test I've got to apply in 95 - [rule 95E], I'm going to grant the application. I grant the - the application is granted to remove the case from the inactive cases list. Ms Handcock, do you want to speak to what should now occur, that order having been made?
I suppose I have it within my power, even though I'm strictly speaking just dealing with this application, because of an obligation to deal with cases expeditiously. And there's other considerations. I have power to make an order that, for example, that a statement of claim be filed within a certain time.
[5] ts 23.
In summary, the learned magistrate found that:
1.The fact that the Court itself had not complied with the Court's obligations to notify the parties in accordance with r 95C(1) of the Magistrates Court Rules was a good reason why an order should be made that the case is no longer taken to be active.
2.Further, the learned magistrate was satisfied that the claim will be pursued by the respondent in a timely manner. While the learned magistrate used the word ‘can', in my view against the context of the Rules and the reasons taken as a whole, that word conveys satisfaction that the proceedings will be pursued in a timely manner. Thus, the ground to make an order under r 95E(2)(a) was enlivened.
A preliminary point
As I have explained, while the case became inactive on 25 April 2019, the required notice pursuant to r 95C was not issued by the Magistrates Court until 25 June 2020.
Pursuant to r 95C(1) the notice ought to have been issued when 'a case becomes an inactive case'. I take this to mean reasonably promptly upon that occurring. In this respect, the purpose of r 95C is to ensure the parties are aware that the case is inactive and also are aware of the consequences of it remaining so for 6 continuous months. This then gives to the relevant plaintiff an opportunity to apply for an order that the case is no longer taken to be inactive, thus avoiding automatic dismissal under r 95F. Accordingly, it is a matter of importance that the notice is sent out promptly upon the case becoming an inactive one.
For the purposes of this appeal, the appellant frankly conceded that the likely proper interpretation of the Magistrates Court Rules is that where the requisite notice required by r 95C(1) is not given prior to the expiry of the 6 month period prescribed by r 95F, the operation of r 95F is suspended and therefore the case is not taken to be dismissed. This does seem to me to be the preferred interpretation of the Rules. If it were otherwise, a plaintiff would be deprived of their right to receive notice from the court explaining the consequences of the case being inactive, and what steps needed to be taken to avoid dismissal.
In light of the appellant's concession, the appellant did not press grounds 1 and 2 of the appeal. These grounds were to the effect that the proceedings were taken to be dismissed pursuant to r 95F irrespective of when the r 95C notice was issued.
Accordingly, I will proceed on the basis that at the time the application was before the learned magistrate, the case was inactive, but not dismissed.
Evidence
The evidence before the learned magistrate was quite limited. It comprised:
1.An affidavit of Mr Horsley sworn 9 July 2020.
2.An affidavit of the appellant sworn 2 August 2020.
Mr Horsley in his affidavit says the respondent wants to continue with the case.[6] Mr Horsley says the police had interviewed the appellant regarding the subject matter of this claim.[7] Mr Horsley says that in the police interview, the respondent remarked that he was prepared to pay for the motors if invoiced.[8] Mr Horsley stated that the respondent then sent an invoice to Mr Horsley for the motors, which remains unpaid.[9]
[6] Affidavit of Mr Horsley page 1, first sentence.
[7] Affidavit of Mr Horsley page 1, lines 5 to 7.
[8] Affidavit of Mr Horsley page 1, lines 5 to 7.
[9] Affidavit of Mr Horsley page 1, lines 7 to 10.
Mr Horsley then states in his affidavit:[10]
We then wanted to gain a copy of the interview from Fremantle Detectives under freedom of information act to support this evidence as this is why the Police decided it was not a criminal matter but a civil matter of difference.
The motors were taken and sold without the companies knowledge or consent and the sale not divulged to the company.
Freedom of Information has not been delivered as yet for the interview in question and we would hope to have it soon to support our claim.
[10] Affidavit of Mr Horsley page 1, last 2 lines through to the end of page 2.
The appellant in his affidavit sworn 2 August 2020:
1.States that he ceased working for the respondent on 7 October 2017 and at that time Mr Horsley threatened him that if he did not pay monies allegedly owed, Mr Horsley would go to the police fraud squad.[11]
2.Annexed certain communications between himself and Mr Horsley.[12]
3.Annexed communications from his solicitors to Mr Horsley.[13]
4.Annexed a letter from the respondent's solicitors to the appellant's solicitors.[14]
[11] The appellant's affidavit, par 2.
[12] Annexures BW1 - BW3, and BW8.
[13] Annexures BW4 and BW6.
[14] Annexure BW7.
Of particular importance in this matter are the following annexures to the appellant's affidavit:
1.Annexure BW8, which is an e-mail from Mr Horsley to the appellant. In the e-mail, Mr Horsley stated to the effect that he now had a copy of the transcript of the appellant's interview with the police.
2.Annexure BW6, which is a letter from the appellant's solicitors to Mr Horsley dated 26 April 2018. In the letter, the appellant's solicitors stated to the effect that the WA Police had interviewed the appellant and decided to take no further action.
3.Annexure BW7, which is the letter from the respondent's solicitors in response to the letter annexed at BW6. The responsive letter does not respond to or accept the assertion that police have decided to take no further action.
There is a conflict between what Mr Horsley said in his affidavit, namely that he had not obtained a copy of the police interview, and what he said in his email of 28 November 2019 to the appellant,[15] which is to the effect that Mr Horsley then had a copy of the police interview. The learned magistrate put this to Mr Horsley during the course of the hearing and appeared to accept Mr Horsley's explanation that what he said in the e-mail was false, it being said in 'an attempt to pressure [the appellant] into paying'.[16]
[15] Annexure BW8.
[16] ts 21.
Further, the appellant submits that his solicitor's letter of 26 April 2018 informed Mr Horsley that the police investigation was at an end.[17] The appellant submits that from then onwards, the prospect of a police prosecution could no longer be an excuse for Mr Horsley delaying the conduct of the Magistrates Court proceedings. The difficulty however with this submission is the letter from the respondent's solicitors in response to that letter of 26 April 2018 did not accept that the police investigation was at an end.[18] Therefore, the matter remained one of assertion as set out in the letter of 26 April 2018 from the appellant's solicitors.
[17] Annexure BW6, page 2.
[18] Annexure BW7.
Analysis
The appellant's counsel accepted at the hearing of the appeal that if the appeal was successful, the appropriate order was that the matter be referred back to the learned magistrate for further consideration upon further evidence being filed. That is, the appellant's counsel did not press for an order dismissing the respondent's application that the case is no longer taken to be inactive.
I propose to first deal with ground 4.
Ground 4
The appellant, by ground 4, contends that the learned magistrate erred in law by finding that the Magistrates Court's delay in issuing the required notice pursuant to r 95C of the Magistrates Court Rules was by itself a good reason to grant an order that the inactive case was no longer taken to be inactive.
The appellant's counsel accepted during the hearing that the substantial delay in giving the notice was a relevant matter that informed the exercise of the discretion provided for by r 95E(2). However, the appellant's counsel submitted that by itself, the substantial delay in giving the notice was not a good reason for an order that the case is no longer taken to be inactive.
It seems to me that the substantial delay in providing the notice infects the question of delay overall. So, the substantial delay in giving the notice means it is likely that the delay in the conduct of the case is significantly longer than it would have been if the notice had been given promptly upon the case becoming inactive. This is because the regime is structured in such a way that the giving of the r 95C notice is designed to compel a plaintiff to move quickly, or face the consequence of it being dismissed.
Overall, in my view, the delay in giving the r 95C notice, and its consequent effect, are relevant considerations in assessing the explanation for the delay and its length, and in assessing whether the case will be conducted in a timely manner going forward. However, in my view the delay in giving the r 95C notice is not by itself a sufficient 'good reason' for an order that the case is no longer taken to be inactive. While it may explain the delay and its length, it is not determinative of those matters. Nor does the delay in giving the notice speak to the future conduct of the case.
Accordingly, for these reasons, in my view ground 4 is made out. However, this does not mean that the appeal should be allowed. The learned magistrate also found that the factors in r 95E(2)(a) had been established. That alone justified the making of the order. Ground 3 deals with this finding.
Ground 3
By ground 3, the appellant asserts that the learned magistrate erred in law:
3.by, having determined that the respondent had failed to explain the delay in taking any procedural step in the case, then finding that he was satisfied that the case would be conducted in a timely way pursuant to section 95E (2) (a) of the Magistrates Court (Civil Proceedings) Rules 2005, when there was no evidence before him to justify that finding; and
…
The ground has two components to it. First, the learned magistrate held that the respondent had failed to explain the delay in taking any procedural step in the case. Second, that having so held, the learned magistrate erred in finding that he was satisfied that the case would be conducted in a timely manner.
I am not satisfied that the learned magistrate held that the respondent had failed to explain the delay. In an exchange with the appellant's counsel, the learned magistrate said in reference to the police interview:[19]
I've now made some observations about how this evidence could be obtained by Mr Horsley on behalf of his - the company he represents. I can assume, in looking at how he may progress the claim if I grant his application today, that he will take that advice on board and perhaps pursue the evidence in that way.
[19] ts 21.
In my view, implicit in these remarks is an acceptance by the learned magistrate that the delay in the conduct of the case was associated with the respondent's difficulties in obtaining the police interview. In this respect, there was information before the learned magistrate that the delay arose from a combination of:
1.Mr Horsley seeking a copy of the police interview of the appellant.
2.Mr Horsley not appreciating that there were other avenues available to obtain that interview other than through a freedom of information request.
3.Mr Horsley waiting for the outcome of the police investigation and further seeking to recover the monies from the appellant without the need for the civil case to proceed through to a hearing.
The appellant also submitted there was not sufficient evidence before the learned magistrate as to the freedom of information request because the request itself was not in evidence, nor was there sufficient evidence as to when it was made and when the respondent was aware it had been rejected.
I accept the appellant's submission that it would have been preferable for the respondent to have put into evidence greater detail regarding the freedom of information request.
However, in dealing with the application, the learned magistrate was required by the duties imposed upon him pursuant to s 13 of the Magistrates Court Act to deal with it efficiently, economically and expeditiously. In doing so, the learned magistrate questioned Mr Horsley as to his evidence regarding the freedom of information request and ultimately after having done so, was satisfied that the request and its refusal was a matter which affected the delay.
In doing this, the learned magistrate appeared to accept Mr Horsley's explanation from the bar table that his e-mail to the appellant sent 28 November 2019 falsely asserted that Mr Horsley had a copy of the transcript of the police interview. The learned magistrate recognised the terms of that e-mail did not necessarily mean that the statement in Mr Horsley's affidavit that he had not received a copy of the police interview was false. Instead, an alternative explanation for the e-mail was that Mr Horsley was attempting to pressure the appellant into paying, by falsely stating in the e-mail that Mr Horsley had a copy of the interview.
In my view, it was open to the learned magistrate in all of the circumstances to accept Mr Horsley's explanation regarding the delays associated with the freedom of information request, without the need for Mr Horsley to give further evidence. Accordingly, while the evidence before the learned magistrate as to delay was general and not supported by documentary material, in my view the learned magistrate was still entitled to have regard to that evidence in assessing the application.
Was there sufficient evidence to justify a finding that the case will be conducted in a timely manner going forward?
It seems to me that the critical aspect of ground 3 is whether or not there was sufficient evidence before the learned magistrate to justify a finding that the case will be conducted in a timely way going forward.
For the following reasons, I am satisfied that there was sufficient evidence before the learned magistrate to justify such a finding. In my view, such a finding was open when regard is had to the totality of:
1.The respondent's explanation for the delay, which I have addressed at [51] ‑ [57] above.
2.The length of the delay was elongated because the Magistrates Court sent out the required r 95C notice approximately one year and two months after the case had become inactive.
3.Mr Horsley set out in his affidavit his desire to continue with the claim.
4.That the respondent brought the application promptly upon receiving the r 95C notice.
5.That during the course of the hearing, the learned magistrate informed Mr Horsley that court processes are available to obtain a copy of Mr Ward's police interview. Thus, the obtaining of the interview via the freedom of information route was removed as an obstacle to the prompt future conduct of the case.
As a whole, in my view these reasons provide an adequate basis for the learned magistrate to have been satisfied that the proceedings will be conducted in a timely manner.
In respect of the factor at [59(4)], the appellant's counsel submitted that the bringing of the application promptly only means that the applicant cannot be criticised for a delay in bringing the application. The appellant's counsel submitted that the bringing of the application promptly cannot however be a matter that is supportive of the order sought being made. I disagree.
It seems to me it can be inferred from the respondent making the application within a relatively short time frame after receiving the r 95C notice, that the respondent is committed to continuing with the action and will do so in a timely manner. It therefore is a relevant factor supportive of the order being made, although it is not a determinative factor.
For these reasons, in my view it was open to the learned magistrate on the entirety of the evidence before him to find that the proceedings will be conducted in a timely manner. It was therefore open to the learned magistrate to make the order sought.
Accordingly, ground 3 is not made out. The learned magistrate's finding the subject of ground 3 justified the making of the order. I therefore dismiss the appeal, notwithstanding the appellant's success on ground 4.
I should make one final comment regarding the form of the order made. The Magistrates Courts Rules were amended with effect from 6 April 2019. Prior to then, the inactive cases regime operated by way of the court registrar entering an inactive case on an inactive cases list. The necessary application under the previous regime was to have the case removed from that list.
Here, the learned magistrate made an order in words akin to the previous regime, namely:[20]
The application to remove the case from the inactive cases list is granted.
[20] ts 24.
The respondent's application was for leave that 'this case is no longer taken to be inactive', which is the proper characterisation of the regime under the new rules operative from 6 April 2019. I consider the correct interpretation of the learned magistrate's order is that he granted leave in terms of the application, which is to the effect that the case is no longer taken to be inactive. Thus, the order is consistent with the new Magistrates Court Rules.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CA
Associate to Judge Lemonis
30 APRIL 2021
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