Williams v Sadeghpour - [2021] WADC 111

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WILLIAMS -v- SADEGHPOUR [2021] WADC 111
CORAM:   GETHING DCJ
HEARD:   1 OCTOBER 2021
DELIVERED          :   25 NOVEMBER 2021
FILE NO/S:   APP 13 of 2021
BETWEEN:   BRENT GARY WILLIAMS
Appellant
AND
AREZOU SADEGHPOUR
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WARD
File Number            :   PER GCLM 16889 of 2019

Catchwords:

Magistrates Court appeal - Whether appellant denied procedural fairness by a decision refusing to adjourn the trial of the claim - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Claim and counterclaim remitted to the Magistrates Court to be tried before a different magistrate

Representation:

Counsel:

Appellant	:	Mr D A Lenhoff
Respondent	:	In person

Solicitors:

Appellant	:	Lenhoff & Hotz
Respondent	:	Not applicable

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Avsar v Binning [2009] WASCA 219
Blenkinsop v Holland [2018] WADC 146
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Defendi v Szigligeti [2019] WASCA 115
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Jones v Darkan Hotel [2014] WASCA 133
Marks v Coles Supermarkets [2021] WASCA 176
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550
Shilkin v Taylor [2011] WASCA 255
Smart v Prisoner Review Board (WA) [2012] WASC 48
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 149
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

GETHING DCJ:

Introduction

Arezou Sadeghpour, the respondent, is the registered proprietor of Units 4 and 5, 18 Rudloc Road, Morley (Property). In June 2018 Ms Sadghpour agreed to lease the Property to Bianchini & Associates Pty Ltd, with the lessee's obligations being guaranteed by Fabrizio Pio Bianchini. The agreement to lease was subject to the lessee paying a security bond which had to be paid before the lessee could take possession of the Property. It was not paid, so in September 2018 Ms Sadeghpour gave notice terminating the lease.
At some point after the agreement to lease was signed someone left some chattels on the Property. They comprise plant and equipment for business that was going to manufacture bathroom products from marble and granite, as well as raw materials and stock for that business. In addition, there is also a 1997 white Audi motor vehicle (together, the Chattels).[1]
[1] The Chattels are particularised at pars 5 and 6 of the Statement of General Procedure Claim at Matter Book (MB) 577.
Mr Williams, the appellant, claimed the right to remove the Chattels. Ms Sadeghpour took the position that if Mr Williams could satisfy her that he was in fact the owner of the Chattels, and would pay for the costs of storing them, he could remove them.
This issue was not able to be resolved informally, so in December 2019 Mr Williams commenced proceedings against Ms Sadeghpour in the Magistrates Court. Ms Sadeghpour maintained her position in the defence and counterclaim she filed in the Magistrates Court proceedings.
Following a trial on 23 and 24 February 2021, on 26 February 2021 Magistrate Ward (Magistrate) dismissed both the claim and counterclaim (Decision). This followed late filing by Ms Sadeghpour of her witness statements and trial documents. Because of the late filings, Mr Williams had applied to adjourn the trial. The Magistrate refused to do so.
Mr Williams appealed the Decision to the District Court on the basis that he was denied procedural fairness by the decision of the Magistrate to refuse to adjourn the trial.
For the reasons which follow, I agree. The Decision should be set aside, and the claim and counterclaim be remitted to the Magistrates Court to be retried before a different magistrate.

Proceedings in the Magistrates Court

In order to determine the appeal, it is necessary to set out the history of the proceedings in the Magistrates Court in some detail, without intending to refer to every document filed or step taken.
To place the proceedings in context, it is significant to note that since July 2020 Mr Williams has been incarcerated at Acacia Prison.[2] He has been assisted by his de facto partner, a Theresa Tan, to whom he has given a power of attorney.
[2] Affidavit of Brent Gary Williams sworn 10 March 2021, par 2 (Williams Affidavit).
Mr Williams commenced the proceedings in the Magistrates Court on 30 December 2019 by lodging a Form 3 - General Procedure Claim.[3] The total amount claimed was $73,953.10. The basis of the claim was expressed in the following terms:
The defendant is falsely claiming ownership and control of chattels and property belonging to the Claimant which are being held unlawfully in units 4 and 5 no 18 Rudloc road Morley being Lot 4 on Strata Plan 15658 and volume 2107 folio 936 which are commercial premises owned by the Defendant. The chattels and property are legally securitized and recorded under the Australia Government Australian financial Security Authority Personal Property Securities Registrar.
The Defendant is unlawfully disposing of the chattels and property belonging to the Claimant to members of the public and unlawfully purporting to own the chattels and property.
The Defendant has made no police report and has refused to do so of a burglary and theft at units 4 and 5 no 18 Rudloc Road Morley were various chattels and property belonging to the Claimant were stolen. The Claimant has filed a police report of the burglary and theft to protect and confirm his ownership of the chattels and property.
The Defendant has not to the Claimants knowledge, made any insurance claim for the burglary and theft of the Claimant's chattels and property located at units 4 and 5 no 18 Rudloc road Morley.
The Claimant is seeking $73,280 for the unlawful sale and or loss or theft of 2 commercial floor grinders and polishers with diamond heads and cutting tools, buffing polisher, 2 commercial wet and dry vacuums, commercial sand blasting unit, various high quality hand tools, for custom wheels and rims and accessories on Audi motor vehicle, assorted new hand crafted ceramic basins, glass basins, stone basins, copper basins, bronze basins, stone sinks, & quality marble and granite stone slabs.
The Claimant is further seeking the return of the balance of the Claimants chattels and property which have not be unlawfully sold and or stolen plus all legal and recovery costs.
[3] MB 587.
On 7 January 2020, Ms Sadeghpour filed a Form 15 - Response to a General Procedure Claim in which she stated an intention to defend the full amount of the Claim.[4]
[4] MB 585.
On 20 January 2020 Mr Williams lodged a Form 19 - Statement of General Procedure Claim in which he developed the basis for the claim in some detail.[5] In summary terms, Mr Williams says that Mr Bianchini was going to operate a business at the Property that would manufacture bathroom products from marble and granite. Mr Williams was going to rent the plant and equipment to operate the business to Mr Bianchini, as well as supply stock and raw material, retaining title until sale. In addition, Mr Williams had requested Mr Bianchini to look after his 1997 white Audi motor vehicle. It was in this context that the Chattels were placed at the Property. Mr Williams was unaware of the dispute between Mr Bianchini and Ms Sadeghpour until sometime later.
[5] MB 577 - 582.
On 4 February 2022, Ms Sadeghpour lodged a Form 21 - Statement of Defence to General Procedure Claim.[6] The essence of the defence was:
The claimant may remove from the defendant's Property all items stored at the Property that the claimant can prove belongs to the claimant, with the Lessee's consent, provided the claimant pays to the defendant the costs of storing the same at the defendant's property for the period stored.
[6] MB 574 - 576.
The same day Ms Sadeghpour also lodged a Form 8 - Counterclaim.[7] In it she asserted:
The claimant is indebted to the defendant in the amount of $58,672.70; being storage costs owing to the defendant by the claimant for the storage of the claimant's alleged goods at the defendant's property at Unit 4 and 5, 18 Rudloc Road, Morley, Western Australia for the period commencing from at least 1 July 2018 and ending on no earlier than 23 September 2019; plus interest and costs.
[7] MB 570.
On 22 April 2020 Mr Williams lodged a Form 17A - Notice of Intention to Defend - General Procedure Counterclaim.[8]
[8] MB 564.
On 22 May 2020 the parties attended a pre-trial conference at which the case did not settle.[9] The registrar made the following orders:[10]
1.The parties must provide additional information by disclosing documents relevant to the case by lodging and serving a Form 35 Affidavit Verifying Disclosure of Documents containing a Form 36 List of Documents by 26 June 2020.
2.The parties are each to lodge a Form 32 Listing Conference Memorandum by 7 August 2020.
3.The matter is adjourned to a Listing Conference on a date to be fixed upon compliance by all the parties with the order to lodge a Form 32 Listing Conference Memorandum.
4.Costs in the cause.
[9] MB 540.
[10] MB 541.
A Form 32 Listing Conference Memorandum must, among other things, annex the statements of intended evidence of each witness who is not an expert witness.[11]
[11] At the time the order was made, this was the effect of Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 43A(3)(d). On 1 June 2020 r 42 and r 43 were repealed and replaced with the current r 42 which does not specify the same requirements.
On 19 June 2020, Ms Sadeghpour lodged a Form 19A - Statement of General Procedure Counterclaim.[12] In essence her position was that Mr Williams never had her permission, or any other right, to enter the Property to place anything on her land, and that, if he did, his actions amounted to a trespass or nuisance which has caused her losses for which she claims damages.
[12] MB 536 - 538.
On 25 June 2020, Ms Sadeghpour lodged a Form 36 - List of Documents,[13] together with an affidavit verifying that list.[14]
[13] MB 521 - 522.
[14] MB 526.
On 26 June 2020, Mr Williams lodged a Form 36 - List of Documents,[15] together with an affidavit verifying that list.[16]
[15] MB 510 - 513.
[16] MB 518.
On 12 August 2020 Mr Williams filed a Form 32 - Listing Conference Memorandum.[17] He annexed (and lodged) statements of intended evidence from:
(a)Fabrizio Pio Bianchini;[18]
(b)Alex Biagio Bianchini;[19]
(c)Theresa Tan;[20]
(d)Rebecca Leath;[21]
(e)Paul Harrison;[22] and
(f)Nicholas Oud.[23]
I note that Mr Williams had sought to file statements of intended evidence from these witnesses on 4 August 2020, but these were rejected by the Registry for being in the wrong format.
[17] MB 421 - 422.
[18] MB 385 - 387.
[19] MB 379 - 381.
[20] MB 405 - 409.
[21] MB 415 - 417.
[22] MB 391 - 396.
[23] MB 403.
Ms Sadeghpour did not file a Form 32 Listing Conference Memorandum, nor statements of intended evidence, by 7 August 2021.
On 9 September 2020, Mr Williams filed an application for summary judgment based on the failure by Ms Sadeghpour to comply with the orders requiring her to file a listing conference memorandum and statements of intended evidence.[24] The specific order sought was:
To have the court grant summary judgment as the defendant has again not adhered to court orders and in this instance has not lodged forms 32 & 32A pursuant to an order made on 22 May 2020 by Registrar Truell ('The Order') where the defendant was to lodge a form 32 listing conference memorandum by August 2020. It has not been done.
Mr Williams filed a short affidavit sworn 26 August 2020 in support of this application, setting out the facts going to the non-compliance.[25]
[24] MB 374.
[25] MB 372.
On 2 October 2020, Ms Sadeghpour filed an affidavit sworn 1 October 2020 in opposition to Mr Williams' application filed 9 September 2020.[26] In essence she says that the reason she did not file statements of intended evidence by 7 August 2020 was because she was seeking legal advice.
[26] MB 337 - 338.
On 15 October 2020, Mr Williams filed an affidavit sworn 14 October 2020 in response to Ms Sadeghpour's affidavit of 30 September 2020.[27] In it he reiterates his concerns as to the delays by Ms Sadeghpour in filing statements of intended evidence.
[27] MB 319 ‑ 320.
On 30 October 2020 the Magistrate made the following orders:[28]
[28] MB 314 - 315.
1.The Claimant's application is amended to an application for default judgment due to non-compliance by the Defendant with Order 2 made on 22 May 2020.
2.The Claimant's application is dismissed.
3.Compliance by the Defendant with Order 2 made on 22 May 2020 is dispersed with.
4.By 13 November 2020, the Defendant to lodge and serve all Form 32A - Statements of Intended Evidence of a Witness.
5.Where a party who has served a Statement of Intended Evidence of a witness, does call the intended Witness at the Trial:
(a)That party may not without leave of the Court, lead evidence frm that Witness if the substance of the evidence is not included in the Statement Served;
(b)Subject to objections as to the admissibility of any evidence in a Statement, which objections must be made in writing to the other party and lodged in Court by 12 January 2021, the Statement will stand as the evidence in chief of the Witness; and
(c)That party shall have the Statement ready for tender at the Trial, together with copies for each other party, the Witness and the Court.
6.By 9 February 2021, the parties are to lodge and serve written submissions.
7.By 9 February 2021, the Claimant is to lodge and serve a joint Trial Book of documents (indexed, paginated and in chronological order).
8.Claim listed for Trial for two (2) days on 23 and 24 February 2021 at 10:00am which dates shall be vacated if the hearing fee is not paid by the responsible party within seven (7) days of it receiving advice of the same from the Court.
9.If the Trial dates are vacated by operation of Order 8, the matter shall be relisted for a Status Conference by the Court.
10.Costs of the Application in the cause.
Ms Sadeghpour did not comply with par 4 of the orders made on 30 October 2020 in that she did not, by 13 November 2020, lodge and serve any statements of intended evidence.
On 30 December 2021, Mr Williams applied for summary judgment (Summary Judgment Application). The specific order sought was:[29]
To have the court grant immediate summary judgment as the defendant has not again adhered to the court orders and in this instance has not lodged and served forms 32A pursuant to an order made on 30 October 2020, and this is the 2^nd time the defendant has ignored the same orders. These forms were generally due over 3 months ago.
[29] MB 296.
The same day he also filed an affidavit in support of the Summary Judgment Application, sworn 23 December 2020.[30] In it he deposes, among other things, at par 3 that:
There is a trial already set and its only a few weeks away and my position is being prejudiced by the defendant continually ignoring court orders.
[30] MB 284.
On 6 January 2021, Mr Williams lodged an application seeking an order that Ms Sadeghpour deliver up a metal filing cabinet containing documents pertinent to the case (Documents Application).[31] The same day he also lodged an affidavit in support sworn 29 December 2020.[32]
[31] MB 238.
[32] MB 285 - 286.
The applications lodged by Mr Williams on 30 December 2020 and 6 January 2021 were listed for hearing on 19 February 2021.[33]
[33] MB 258.
On 8 January 2021, Ms Tan sent the following email to the Magistrates Court:[34]
[34] MB 748.
Good Morning Magistrates Court
We are collating all documents for the upcoming trial with the lawyer and in particular the FORM 32A - STATEMENT OF INTENDED EVIDENCE OF A WITNESS
It appears there s [sic] only 5 on file which are from
Alex Bianchini
Rebecca Leath
Theresa Tan
Nicholas Oud
Paul Harrison
This is very concerning as the actual Claimant Brent Gary Williams statement has somehow been overlooked for lodgement
How can we fix this as his statement is crucial to the case
Hope you can help
A registry staff member responded in the following terms:[35]
Thank you for your email.
The court record indicates Brett Gary Williams did not list himself as a witness on his Form 32 - Listing Conference Memorandum elodged on 12 August 2020. Therefore, there is no Form 32A Statement of Intended Evidence of a Witness ('Form 32A') of Brett Gary Williams on the file.
If Brett wishes to lodge a Form 32A he will need to seek leave of the court by making an application, please note this can be heard ex-parte.
Please do not hesitate to contact the court to discuss this matter further.
It is not apparent from the face of either email that this correspondence was copied to Ms Sadeghpour or her lawyer.
[35] MB 748.
On 22 January 2021, Ms Sadeghpour lodged an affidavit sworn the previous day.[36] In it she says, among other things, that the reason for the delay in filing the statements of intended evidence was because the parties had been attempting to settle the matter.
[36] MB 267 - 268.
On 27 January 2021, Mr Williams lodged an affidavit sworn that day. In it he set out in some detail his concerns regarding the continuing failure of Ms Sadeghpour to comply with the orders to file statements of intended evidence and a joint trial book.[37] Among other things he deposed at par 7:[38]
The trial dates are Tuesday 23^rd of February and Wednesday 24^th of February and my lawyer is being hampered preparing for trial due to the continual flouting of court orders and deliberate delays by the Defendant by not lodging and serving documents ordered.
He also disputed that there had been any meaningful attempts to settle the matter.
[37] MB 259 - 261.
[38] MB 260.
On 8 February 2021, Mr Williams, by email from Ms Tan, informed the Magistrates Court that the lawyer he had briefed to appear on the Summary Judgment Application could not attend the hearing listed for 19 February 2021. The court responded by issuing a bring up order for Mr Williams to appear by audio link at this hearing.[39] Mr Williams made some efforts to secure another lawyer to attend this hearing but was not able to do so.[40]
[39] MB 742.
[40] Williams Affidavit, pars 6, 7, 8.
On 18 February 2021, Ms Sadeghpour lodged:
(a)a witness statement for herself, which she signed on 11 February 2021;[41] and
(b)a witness statement for Rahim Meehandoust (Ms Sadeghpour's husband), which he had signed on 12 February 2021.[42]
These documents were served by email and express post on Mr Williams' lawyer, who was then on holidays.[43]
[41] MB 252 - 254.
[42] MB 240 - 245.
[43] Williams Affidavit, par 9.
At 9.50 am on 19 February 2021, Ms Sadeghpour filed an affidavit in opposition to the Documents Application, stating among other things that she had not seen a metal cabinet on the Property.[44]
[44] MB 236.
The Summary Judgment Application and the Documents Application came on for hearing on 19 February 2021, this being a Friday. At the time of this hearing Mr Williams was incarcerated at Acacia prison. He was not represented. He attended this hearing by telephone. Ms Sadeghpour was represented by a Mr C S Williams.[45]
[45] MB 232.
At the commencement of the hearing the Magistrate referred to the documents filed by Ms Sadeghpour the preceding evening. Mr Williams informed the court that his lawyer was on leave and that he had not seen the documents.[46]
[46] ts 2 - ts 3, 19 February 2021.

Mr Williams raised with the Magistrate a number of times his concern that the late filing of these documents meant that his lawyer has not had any time to prepare for the trial.[47] He made an oral application to adjourn.[48] It is somewhat unclear whether he was seeking to adjourn the trial or just to adjourn the hearing of the Summary Judgment Application and the Documents Application to the commencement of the trial. And then he appears to have withdrawn his application to adjourn and press the Magistrate to deal with the two applications then and there.[49] That is what the Magistrate ultimately did,
[47] For example, ts 4, ts 6, 19 February 2021.
[48] ts 11, ts 12, 19 February 2021.
[49] ts 11 - ts 14, 19 February 2021.
In relation to the Summary Judgment Application, the Magistrate dismissed it on the basis that she could not be satisfied that there was no defence on the merits.[50]
[50] ts 16, 19 February 2021.
The Magistrate went on to consider whether Mr Williams was entitled to default judgment on the basis of Ms Sadeghpour's non‑compliance. Her Honour declined to exercise her discretion to do so on the basis that there had now been compliance, and that if there was any issue in relation to the contents of the affidavits, they could be dealt with at trial.[51] Her Honour added:[52]
Given the content of the affidavits, the claimant's solicitor will be able to adequately deal with them, in my view, in the time between when he returns from his holiday on Sunday and the commencement of the trial on Tuesday morning. So in my view it's not an appropriate exercise of the court's discretion, even if the claimant had intended to apply for default judgment, the cure if any, in relation to the affidavit - the statements, two statements intended evidence is to be dealt with at trial in relation to whether there's any unfairness.
[51] ts 16, 19 February 2021.
[52] ts 16 - ts 17, 19 February 2021.
The Magistrate dismissed the Documents Application, a decision which Mr Williams does not challenge in this appeal.[53]
[53] ts 17 - ts 18, 19 February 2021.
The formal orders made by the Magistrate were that:[54]
In relation to the Claimant's applications lodged 30 December 2020 and 6 January 2021, it is ordered that:
1.Both Applications are dismissed.
2.Claimant to pay Defendant's costs of the Applications fixed in the amount of $418.00.
3.The time for compliance with Order 6 of the Orders made on 30 October 2020 for the parties to lodge and serve written submissions is extended to 22 February 2021.
4.Order 7 of the Orders made on 30 October 2020 is varied to read "by 22 February 2021, each party is to lodge and serve a Trial Book of documents and the Trial Book is to be indexed, paginated and in chronological order."
5.Bring- up order for the Claimant to attend the Trial in person.
[54] MB 234; ts 23 - ts 24, 19 February 2021.
On 22 February 2021, Mr Williams filed a notice of change of address for service, the effect of which was that he would proceed unrepresented.[55]
[55] MB 231.
On 23 February 2021, Ms Sadeghpour filed a notice of change of address for service, the effect of which was that she also would proceed unrepresented.[56]
[56] MB 230.
At 8.30 am on 23 February 2021, Ms Sadeghpour (personally) elodged submissions[57] and a trial book containing 33 documents comprising well over 100 pages (Trial Book).[58]
[57] MB 60 - 66.
[58] MB 75 ff.
On 23 February 2021 Ms Sadeghpour also filed a statement of intended evidence of Augustus Ernest Lee-Steere, signed on 22 February 2021. Mr Lee-Steere described himself as a business consultant for Ms Sadeghpour and her husband.[59]
[59] MB 114 - 117.
There was a further hearing on 23 February 2021, a Tuesday and the day the trial was due to commence. Mr Williams was brought up from prison and appeared in person. He was not represented. Ms Sadeghpour appeared in person and was also not represented. She did, however, have an interpreter to assist her with any language issues.
At the commencement of this hearing, Mr Williams was given a copy of the Trial Book.
Mr Williams informed the Magistrate that he still had not had an opportunity to read the witness statements and stated that he would be prejudiced if the trial proceeded that day. He said that the lawyer who he had previously engaged was never going to be the lawyer who would do the trial. He had spoken to other lawyers about doing the trial, who had advised him that they needed all the witness statements and documents to be provided. He added that being in prison had also made it hard to get things done. He requested an adjournment of two to three months in order to get legal representation at trial. He made the point that there had been several times at which Ms Sadeghpour had been granted leniency, and that he was just asking for the same.[60]
[60] ts 3 - ts 7, 23 February 2021.
Ms Sadeghpour objected to the adjournment and advised the court that she was ready to proceed with the trial.[61]
[61] ts 7, 23 February 2021.
The Magistrate dismissed Mr Williams' application to adjourn the trial, giving the following reasons:[62]
[62] ts 7 - ts 8, 23 February 2021.
I'm prepared to grant you a short adjournment this morning. I'm not prepared to adjourn the trial based on your submissions this morning, Mr Williams My power to grant an adjournment under section 16(1)(c) of the Magistrates Court (Civil Proceedings) Act, the court may do all or any of the following (indistinct) controlling and managing cases and trials: (b) adjourn a hearing to a specified date.
The basis on which you seek the adjournment is that you say that you don't have legal representation. You say that Mr Rouphael was never going to be taking the matter to trial and he's the lawyer who has been on the record until yesterday. So you have been aware throughout this process that Mr Rouphael was never going to be taking the matter to trial. The matter was listed for hearing on 30 October last year. That's some four months ago.
This is a trial of your claim and also the defendant's counterclaim, but your claim in relation to proceedings that you initiated on 30 December 2019. I'm simply not persuaded on the balance of probabilities that the failure to have legal representation at the trial today in circumstances where, one, you've been on notice for the duration of the trial date, so for the past four months, and also where you were undertaking to obtain a trial lawyer.
I understand you say that was predicated on being provided with witness statements. Witness statements were provided very late by the defendants and I certainly acknowledge and accept that. The witness statements are very short in compass. You will be able to read through them this morning and I will give you an adjournment to do that. I'm to balance the prejudice to you and you've been unable to persuade me that an adjournment of the trial for a further two to three months, when I asked you what difference that might make and you said you weren't sure.
Effectively you've had conduct of the matter throughout. Mr Rouphael, from my recollection, has only appeared once by telephone and clearly it was the case that he was never going to, now you say, appear at the trial; that you would always be having a trial lawyer.
I'm not persuaded that it's appropriate that it's in the interests of justice and public interest and the use of the courts in terms of the court set aside these two days to hear the matter and it set those days aside on 30 October.
But more importantly, it's also prejudice to the defendant and the defendant is here, ready to go, got their witnesses, an interpreter here, but again, booked very late yesterday and that I thank the registry for being able to organise an interpreter at such late and short notice from the defendant.
I'm simply not persuaded based on your submissions, Mr Williams, that the principles of procedural fairness require that an adjournment be granted. Adjournments are not here just for the asking and the courts list matters. There's simply no reason – you've had effectively conduct of the matter throughout these proceedings. You've been on notice. You say that you've tried to get lawyers. I simply can't be satisfied that an adjournment is in the public interest, having considered all the factors.
So I propose that I will give a short adjournment now for you to read through the witness statements, albeit that Ms Sadeghpour, who also was legally represented until yesterday, her lawyer did read through the pertinent parts of some of them on Friday afternoon, so I don't think it will be all news to you what the witnesses say, but I will certainly give you time this morning to consider the witness statements, which are relatively short in compass.
And there's obviously the bundle of documents, which are indexed and which the defendant, no doubt, will be putting in evidence. So the trial will proceed, but I will give you half an hour or so or 20 minutes for you to look through the documents that you've just been handed.
As he was in custody, Mr Williams was required to remain in the courtroom to look at the documents.
When the Magistrate reconvened, Mr Williams said that he was feeling a 'little bit overwhelmed'.[63]
[63] ts 9, 23 February 2021.
The Magistrate arranged for a registrar to come into the courtroom to mediate with the parties in an endeavour to resolve the issues in dispute. This was unsuccessful.[64]
[64] ts 11 - ts 12, 23 February 2021.
The trial then proceeded. At the outset the Magistrate raised with Mr Williams the fact that he had no witnesses in court. Mr Williams responded that he had not compelled them to come. He went on to say:[65]
Yes, like I said, I was ill prepared for this, your Honour. I thought it would be stood down for a short time.
[65] ts 13, 23 February 2021.
In response to an invitation from the Magistrate, Mr Williams objected to all three of the witness statements filed by Ms Sadeghpour.[66] The Magistrate pointed out to him that he had not filed a statement of intended evidence, nor any other document.[67] Mr Williams responded that he was waiting for the statements of intended evidence before filing his documents, saying:[68]
Again, I ask for the same leniency as the defendants got, your Honour, to allow for some time for me to lodge the relevant documents.
[66] ts 13, 23 February 2021.
[67] ts 14, 23 February 2021.
[68] ts 14, 23 February 2021.
There was a discussion between the Magistrate and Mr Williams about the impact of the non-compliance by Ms Sadeghpour, which ultimately led to Mr Williams making a further adjournment application:[69]
[69] ts 15 - ts 16, 23 February 2021.
WILLIAMS, MR: I would have time to prepare a counter, but they had six months to prepare theirs to my witness statements.
HER HONOUR: Well, I'm at a loss to know that you've had one, two, three, four, five, six witness statements quite properly lodged for and on behalf of you, Mr Williams, on 12 August 2020. It doesn't include a witness statement from you. And that was in accordance with the Registrar's earlier orders. You understand your case is doomed to fail if you don't lead any evidence.
WILLIAMS, MR: Yes, your Honour. That's why I was asking for an adjournment.
HER HONOUR: But what is an adjournment - - -
WILLIAMS, MR: So I can get my case together. Even if it's for a shorter period, your Honour.
HER HONOUR: On what basis? What more are you going to do, given that you've had since August you lodged, 12 August you lodged the other witness statements, in 2020.
WILLIAMS, MR: Well, my witness statement may take their statements into account.
HER HONOUR: Are you making another adjournment application, are you?
WILLIAMS, MR: Yes, your Honour.
HER HONOUR: On what basis?
WILLIAMS, MR: To pull my – summons my witness.
HER HONOUR: And why didn't you summons them before?
WILLIAMS, MR: Because I was waiting to prepare my case till I had their witness statement and if they had have lodged it on time, I would have had five months to prepare, whereas I've only had one business day.
HER HONOUR: Why were the defendant's witness statements so critical to your case?
WILLIAMS, MR: They would have done their witness statements - they would have done their statements based –worked through my statements, then work back to - - -
HER HONOUR: You either have a case or you don't have a case.
WILLIAMS, MR: I have a case. I think I have strong - -
HER HONOUR: But you need to prove it.
WILLIAMS, MR: I think I have strong evidence.
HER HONOUR: Well, where is it? You've had months to prepare it. It's not good enough, Mr Williams.
Ms Sadeghpour again opposed the adjournment.[70] It appears that both Ms Sadeghpour and Mr Williams had been having issues coming up with funds for their lawyers which was the underlying cause of the delays.[71]
[70] ts 17, 23 February 2021.
[71] ts 18 - ts 20, 23 February 2021.
The Magistrate again refused to adjourn the trial, stating:[72]
So nothing is going to change in the next couple of months. My job is to make sure that there's a fair trial. A fair trial means giving you the opportunity. Whether you take up the opportunity to bring witnesses or bring documents is entirely a matter for you. I feel, given the way this matter has proceeded, there's very little that would be achieved through an adjournment.
…
All right. Well, I think there's very little point in having an opening and closing in relation to your case, Mr Williams, if you're not calling any evidence or producing any documents. And for the purpose of the record, I don't propose that it's appropriate that the matter be adjourned so that you can summons your witnesses.
Witnesses gave statements of intended evidence for a witness back in August 2020. The matter was then listed on 30 October 2020, from memory, for today. There's simply no reason why you couldn't arrange you and/or your lawyer, who was then acting, for the witnesses to be here today. That's the responsibility of a party. It's not a responsibility of the court. You're engaging the court processes. Your onus is on you to make your case. It's not for the court to make your case or anybody else to make your case. So I really can't see how your matter can proceed, in my view.
You've been given ample opportunity, as I stress, opportunity to produce documents, produce evidence and you haven't done so at the trial.
So really it only leaves the counterclaim, as far as I can see …
[72] ts 19 - ts 20, 23 February 2021.
At that point, the Magistrate adjourned for lunch.
On court resuming, Mr Williams maintained his objection to the statements of evidence filed by Ms Sadeghpour.[73]
[73] ts 22 - ts 23, 23 February 2021.
The Magistrate then outlined the basis on which the trial would proceed:[74]
HER HONOUR: All right. Well, the court is in a very difficult situation: (1) it doesn't have a witness statement from Mr Williams himself, and it has got three very late witness statements and, I have to say, a lot – I have to accept what Mr Williams has said – a lot of what is in the witness statements is simply not relevant to these proceedings. It may be the case that the court should just put the witness statements to one side and get the witnesses to give their evidence-in-chief …
Obviously, the purpose of having the witness statements is so that the proceedings may proceed at trial more expeditiously and also so that the other side is on notice as to what evidence may be led. In Mr Williams'case, Mr Williams has failed to put in a witness statement in relation to his evidence. In relation to Ms Sadeghpour's case, she has put in three late witness statements, the contents of which, arguably, are rather irrelevant, largely, to the issues to be determined by this court.
For this trial to proceed for the claims to be determined I'm going to allow Mr Williams to give evidence in-chief, notwithstanding he hasn't given a witness statement. In my view, these proceedings have proceeded in such a manner that it's clear what the issues are between the parties, and if the parties are surprised, taken by surprise in relation to any of the evidence, then the court can deal with that by application from one or other of the parties.
The issues are relatively straightforward and understood by both parties in relation to the claim and the counter-claim. I will make an order that the evidence in one proceeding will be evidence in the counter-claim as well. The witnesses will give evidence under oath or affirmation in the witness box, and it's what is said under oath or affirmation and the documents which are tendered in evidence which forms the evidence on which the court determines the matter. So it's not what is in the file; it's what is said in the witness box.
While the witness is giving evidence the other party can make notes, no interrupting, and then the other party will cross-examine the witness. This applies to both parties. When you're cross-examining a witness under section 30 of the Magistrates Court Act, as you're both self‑represented, I must inform you that you must put your version of the facts to the witness where they differ from your version of events so that they have the opportunity to respond to your version; otherwise, the court may attach less weight to your version of events.
In the process of evidence, evidence-in-chief, you tell the court your evidence, things that you know happened, not what you think happened… cross-examination by the opposing party; then the witness can then clarify any matters arising from cross-examination …
The onus of proof is on the claimant, Mr Williams, in relation to his general procedure claim, and the onus of proof is on Ms Sadeghpour with respect to the counter-claim. The standard of proof is that the court must be satisfied on the balance of probabilities of the claimant's case, and the balance of probabilities on the defendant's case on the counter‑claim.
[74] ts 23 - ts 25, 23 February 2021.
The trial then proceeded. Mr Williams gave evidence. He tendered some documents from the Trial Book. Ms Sadeghour then gave evidence and also tendered some documents. She also called Mr Lee‑Steere. At that point the trial was adjourned for the day. The following day, Mr Williams was again brought up to appear in person. Mr Meehandoust gave evidence. At the conclusion of his evidence the Magistrate adjourned for lunch, advising the parties that after lunch she would hear closing submissions. This is what then occurred after lunch. At the conclusion of closing submissions, the Magistrate adjourned the matter until the afternoon of 26 February 2021, stating she would give reasons then.
At the hearing on 26 February 2021, both Mr Williams and Ms Sadeghpour appeared by audio link. The Magistrate delivered oral reasons, dismissing both the claim and the counterclaim.[75] As the Appeal is focussed on the failure to adjourn the trial, I do not need set out the reasons for decision in any detail. In essence, the Magistrate was of the view that Mr Williams had not proven on the balance of probabilities that he had an immediate right to possession of the Chattels, including the Audi car. As to the counterclaim, Ms Sadeghpiour had not proven on the balance of probabilities that Mr Williams, either personally or by anybody acting on his behalf, was responsible for placing the Chattels, including the Audi, on her land. Relevant to the issues in the appeal, her Honour did observe:[76]
Some latitude and flexibility was granted to both parties to ensure that they were afforded the opportunity to present their respective cases. There are, however, a few unusual features of the trial. However, in my view, both parties were afforded the opportunity to present their cases in accordance with the rules of procedural fairness in order to ensure a fair trial.
[75] ts 144 ff, 26 February 2021.
[76] ts 150, 26 February 2021.
Her Honour then reiterated the procedures which I have set out in detail in the preceding paragraphs, concluding:[77]
Given these factors I form the view – bearing in mind my obligations under section 13 of the Magistrates Court Civil Proceedings Act with respect to ensuring the cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible – that in the circumstances of this case that neither party would suffer any material prejudice as a general tender of both parties' evidence was well known before (indistinct).
So no adjournment was granted of the trial, notwithstanding the late giving of the witness statements by the defendant. So the order was made that all witnesses would give evidence-in-chief in person rather than tendering their witness statements and spending significant time on objections to evidence from self-represented parties to potentially large portions of the statements have been tendered evidence from the defendant and her witnesses, accordingly.
[77] ts 151, 26 February 2021.

In the course of her reasons, Her Honour made a Jones v Dunkel inference against Mr Williams, finding that 'Mr Williams' failure to call Mr Frank Bianchini supports an inference that his evidence would not have assisted Mr Williams' case'.[78]
[78] ts 155, 26 February 2021.
The formal orders made were:[79]
1.The Claim and Counterclaim are both dismissed.
2.By 26 March 2021 the parties are to lodge and serve a Form 23 - Application and supporting Affidavit in relation to any claim for the costs of the proceedings.

District Court Appeal

[79] MB 54.

By appeal notice filed 15 March 2021, Mr Williams appealed the Decision (Appeal). This was within the required 21‑day time limit from the date on which the Decision was made.[80]
[80] Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 40(3).
On 8 April 2021 Ms Sadeghpour filed a notice of respondent's intention, indicating an intention to argue that the Decision should be upheld on the grounds relied on by the Magistrate.
On 10 August 2021, Mr Williams, having obtained the leave of the court, filed an amended appeal notice (Amended Appeal Notice). The Amended Appeal Notice limited the appeal to the decision of the Magistrate to refuse the appellant's application made on 23 February 2021 to adjourn the trial and consequent decision on 26 February 2021 to dismiss his claim. Detailed grounds were annexed to the Amended Appeal Notice.
Mr Williams obtained legal representation later before the appeal was heard, and his lawyers filed written submissions. Ms Sadeghpour also filed written submissions.
Mr Williams sought to rely on an affidavit which was sworn on 10 March 2021 and filed 15 March 2021.[81] The general rule is that the District Court must decide the appeal on the material and evidence that were before the Magistrates Court. The court may give leave for a party to admit other evidence, but only in exceptional circumstances.[82] The Williams Affidavit provides background information in support of the contention that he was denied procedural fairness. It does not, for example, seek to place before the District Court new evidence going to the substance of the dispute in the Magistrates Court which ought properly to have been placed before that court at the time of trial.[83] I am satisfied that the circumstances are exceptional, and that Mr Williams should be given leave admit the Williams Affidavit in the Appeal.
[81] Being the Williams Affidavit.
[82] MCCPA s 40(4), (5).
[83] In contrast to the position discussed by the Court of Appeal in Shilkin v Taylor [2011] WASCA 255 [67] ‑ [68] (Newnes JA, with whom Pullin & Buss JJA agreed).
The Appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court.[84] The appeal is thus to be undertaken by way of a rehearing.[85] It is not sufficient for Mr Williams to satisfy the court that a decision other than that made by the Magistrate is correct and preferable.[86] Mr Williams must demonstrate that there has been an error of a recognised genre that falls to be corrected and which entitles him to the orders that he seeks.[87] Specifically, the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the Magistrate the subject of the appeal was the result of some material legal, factual or discretionary error.[88] A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law.[89] The onus is on Mr Williams, as the appellant, to demonstrate this error.[90]

Determination of the Appeal

[84] District Court Rules 2005 (WA) (DCR) r 50(1).

[85] Blenkinsop v Holland [2018] WADC 146 [14] (Gething DCJ) (Blenkinsop); Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] ‑ [10] (Bowden DCJ).

[86] Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks).

[87] Avsar v Binning [2009] WASCA 219 [37] (Owen JA, with whom Miller & Newnes JJA agreed).

[88] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (judgment of the court); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ); Marks [124]; Blenkinsop [14].

[89] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 - 367 (Deane J).

[90] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court); Blenkinsop [14].

The Amended Appeal Notice makes it clear that the only issue in the appeal is whether Mr Williams was denied procedural fairness by the Magistrate on 23 February 2021 when Her Honour refused his application to adjourn the hearing.
The following observations by the Court of Appeal in Defendi v Szigligeti conveniently summarise the relevant principles:[91]
It is axiomatic that a court is obliged to accord procedural fairness to a litigant.
However, to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. The second step is what is critical in most cases.
Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.
The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.
[91] Defendi v Szigligeti [2019] WASCA 115 [45] - [48] (judgment of the court) (references omitted).
The Court of Appeal went on to outline some relevant features of the legislation and rules governing the procedures of the Magistrates Court. This included a reference to MCCPA s 13 which relevantly provides, that in dealing with cases, the court is to ensure that cases are dealt with justly, which includes ensuring that cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible.
Additional considerations apply where one of the parties is a litigant in person. These principles applied to the trial before the Magistrate, but also equally apply to the determination of the Appeal.
As a litigant in person, Mr Williams was at first instance entitled to some leniency in relation to compliance with the court rules.[92] The court was required to approach the documents in which he articulated his claim with some flexibility.[93] The court needed to be astute to ensure that, in a poorly expressed or unstructured document in which he set out his case, there was no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[94] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[95] The same principles applied at first instance once Ms Sadeghour became a litigant in person.
[92] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court) (Glew).
[93] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[94] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J) (Ibrahim); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed) (Tobin).
[95] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim [21]; Glew [10]; Tobin [14].
At the same time, the court at first instance needed to ensure that any latitude given to either party as a litigant in person did not deprive the other of their right to procedural fairness and a fair hearing.[96] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[97] As the Court of Appeal recently observed:[98]
1.The court's obligation is to ensure a fair and just trial for all parties …
2.A self-represented litigant is subject to the practice and procedure of the court as much as any other litigant …
3.The court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair trial to both parties (the application of the principle depending on the circumstances of the case) … Among other things a trial judge should usually inform a self-represented litigant of the manner in which the trial is to proceed and his or her right to examine witnesses and object to evidence. Also, it will usually be of importance to ensure that a self-represented litigant understands the distinction between evidence and submissions ...
4.A trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised …
5.All the more so the trial judge's role in providing information to the self-represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self‑represented litigant …
[96] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[97] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court) (Zerjavic).
[98] Zerjavic [75] (references omitted).
Mr Williams in the Williams Affidavit deposes that the lawyers he had sought to engage for the Trial would only look at representing him for the Trial once all evidence and documents were available.[99] He also deposes that as at 19 February 2021:[100]
… I was lost in all the process and was too scared to speak up anymore and again wanted the request an adjournment for the trial so I could seek legal representation and so forth, but I was too scared as I did not know the legal system and felt totally intimidated by both the Judge and the Defendants lawyers.
He goes on to depose as to the efforts he went to from prison to try and secure a lawyer to appear for him at the trial.[101]
[99] Williams Affidavit, pars 11, 2 - 12.
[100] Williams Affidavit, par 17.
[101] Williams Affidavit, pars 22, 23.
Mr Williams also deposes that the trial book included evidence that was never disclosed on 25 June 2020 when Ms Sadeghpour provided her discovery.[102]
[102] Williams Affidavit, par 24.
In support of the contention that the Magistrate erred in refusing to adjourn the Trial, at the hearing of the Appeal counsel for Mr Williams submitted that:[103]
(a)Mr Williams was in prison at all material times;
(b)although Ms Sadeghpour was ordered to file her witness statements by 30 October 2020, she did not do so until 22 February 2021;
(c)Mr Williams had not seen Ms Sadeghpour's witness statements by the time the trial was due to commence on 23 February 2021;
(d)had Mr Williams received the witness statements within the timeframe ordered by the Court, he would have been better prepared for the trial;
(e)for the same reason, Mr Williams had been unable to prepare written submissions and contribute to a joint trial book of documents;
(f)Mr Williams was only given the 100 plus page trial book prepared by Ms Sadeghpour on the first day of trial; and
(g)the adjournment provided by the Magistrate of 20 to 30 minutes was insufficient to give Mr Williams a reasonable time to prepare for trial.
[103] Appellant's Submissions, filed 21 September 2021.
In support of the contention that the Magistrate made the correct decision in refusing to adjourn the trial, Ms Sadeghpour made the points that:[104]
(a)Mr Williams has known at least since she filed the defence in April 2020 that her position was that if he could prove that the Chattels belong to him and he paid for storage costs, she would consent to him removing the Chattels from the Property;
(b)Mr Williams had nearly 4 months' notice of the trial;
(c)the statements of evidence filed by Mr Williams did not contain any admissible evidence to the effect that Mr Williams owned the Chattels;
(d)Mr Williams did not lodge any intended witness outline for himself;
(e)notwithstanding the prior disclosure of the statements of evidence, Mr Williams chose not to call any witnesses to give evidence at the trial;
(f)although she did file her witness outlines late, the witness outlines did not make any mention of ownership of the Chattels, their focus being on the financial loss she suffered due to her inability to lease the Property to another tenant;
(g)although the Magistrates Court does have the power to adjourn a trial, that power needs to be exercised taking into account not only the interests of the application, but also the interests of the respondent and the interests of due administration of justice in the Magistrates Court more generally; and
(h)after refusing the adjournment application, the Magistrate allowed Mr Williams to give evidence and produce any documents he wanted to, so affording him a fair and just trial.
[104] Respondent's Submissions filed 28 September 2021.
It is evident from the history of the proceedings which I have described that Ms Sadeghpour was given considerable leniency by the court in the time she was given to comply with the orders of the court to file her statements of intended evidence. It is evident from the transcript that the reason for her late compliance was that she was seeking funds to pay her lawyers.[105]
[105] ts 18 - ts 20, 23 February 2021.
The learned Magistrate made a quite pragmatic attempt to allow the Trial to proceed on a basis that was fair to both parties, as I have set out at [64] - [65].
However, in my respectful view, in the particular circumstances of this case, those arrangements did not go far enough.
This is for four reasons. The first is that Mr Williams was in prison, limiting his ability to prepare. So, for example, he had not been able to read the witness statements filed prior to the hearing on 23 February 2021. And, while he had 20 to 30 minutes to look at the Trial Book, he was confined to the courtroom.
The second is that, from the history of the proceedings I have set out in some detail, it is evident that Mr Williams had a longstanding complaint that Ms Sadeghpour's serial non‑compliance with the orders to file her witness statements was prejudicing his ability to prepare for the trial. He made two specific applications to seeking orders to compel Ms Sadeghpour to comply with the orders, being his applications of 9 September 2020 and the Summary Judgment Application. So, it cannot be said that his adjournment applications were a last‑minute idea.
The third is that the Trial Book contained documents which were not in Ms Sadeghpour's list of discovered documents, so there was a clear element of surprise in the Trial Book.
The fourth is that Mr Williams' position of deferring making arrangements for trial pending receipt of Ms Sadeghpour's statements of intended evidence was a not unreasonable one, in particular given what he was being told by the lawyers he had sought to engage.
For these reasons, on the balance, I am of the view that the decisions of the Magistrate not to adjourn the Trial had the effect of depriving Mr Williams of a reasonable opportunity to prepare for the Trial. Ms Sadeghpour was allowed considerable leniency by the court in her compliance with the obligation to file her statements of intended evidence. Fairness dictated that Mr Williams be afforded an equivalent level of leniency. He was not. The latitude given Ms Sadeghpour had, in my view, the effect of depriving Mr Williams of his right to procedural fairness and a fair hearing.
I am satisfied that in refusing Mr Williams' applications to adjourn the trial, both on 19 and (in particular) on 23 February 2021, the Magistrate denied him a reasonable opportunity to present his case. This is an error of law.
Moreover, it is a material error of law. For example, had Mr Williams called Mr Bianchini and he had given evidence in accordance with his statement of intended evidence, it may well be that the Magistrate would have come to a different decision on the merits.[106]
[106] MB 388 - 390.
The appropriate orders are:
1.The Appeal be allowed.
2.The orders of the Magistrates Court on 26 February 2021 dismissing the claim and counterclaim be set aside.
3.The claim and counterclaim be remitted to the Magistrates Court for hearing by a different magistrate.
I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SVH
Associate
24 NOVEMBER 2021