| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WILSON -v- LESTERI [2011] WADC 120 CORAM : STAUDE DCJ HEARD : 18 JULY 2011 DELIVERED : 18 JULY 2011 FILE NO/S : APP 23 of 2011 BETWEEN : SANDRA WILSON Appellant
AND
PUSPA LESTERI
Respondent
Catchwords: Appeal - Appeal from order dismissing application to set aside default judgment - Breach of rules of natural justice Legislation: Magistrates Court (Civil Proceedings) Act 2004 Result: Appeal allowed
Leave to defend granted
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Representation: Counsel:
Appellant : In person
Respondent : In person
Solicitors:
Appellant : Not applicable
Respondent : Not applicable
Case(s) referred to in judgment(s):
Nil
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1 STAUDE DCJ: [This judgment was delivered extemporaneously on 18 July 2011 and has been edited from the transcript.]
Introduction 2 The appellant, Mrs Wilson, is the defendant in a minor case claim brought by the respondent, Ms Lesteri, in the Magistrates Court of Western Australia at Fremantle, case number 1596 of 2010. Ms Lesteri's claim was for the sum of $600 plus costs of $135.05. Ms Lesteri's claim was stated to be as follows: Claimant and defendant entered into a lodging agreement on 25 July 2010. Four weeks into the agreement, the defendant terminated the agreement by handing the claimant an eviction notice. Defendant refuses to refund security bond of $600 to claimant. Claimant seeks return to $600 security bond and allowable costs from defendant. 3 Mrs Wilson entered a notice of intention to defend the claim and in due course, the matter was set down for a pre trial conference at the Magistrates Court at Fremantle at 11.15 am on 1 February 2011. The parties were required to attend the pre-trial conference in person. 4 When the matter was called, there was no appearance by Mrs Wilson and the presiding registrar entered a judgment in default of her appearance in the amount of $735.05. 5 On the same day, an application was made by Mrs Wilson to set aside the default judgment. That application was supported by an affidavit which has two pages and in that affidavit, Mrs Wilson stated: 6 Mrs Wilson's application to set aside the default judgment came before a magistrate on 10 February 2011. The transcript of what occurred on that occasion indicates that there was no appearance by Mrs Wilson and the application was dismissed. 7 The application came on again before his Honour Magistrate Jones on 23 February 2011. I infer that some mistake had been made on the (Page 4)
previous occasion and that the order dismissing the application was set aside. 8 In any event, the transcript of the hearing on 23 February 2011 indicates that both parties were in attendance. 9 His Honour heard from Mrs Wilson who told the court that she was not absent as such on 1 February but in fact was in attendance at the court when the matter was called on, but did not have the opportunity to respond to the call of her name. Mrs Wilson said: The registrar called my name. By the time I got up and turned around, she had disappeared. I had no idea who called me, where or what. 10 On that basis, Mrs Wilson sought to have the default judgment set aside. The learned magistrate responded as follows: You weren't here so you have got to show a good reason why you weren't here on that day, and secondly, you have got to show whether you have got merits to your defence. 11 There was then an exchange about what was claimed by Ms Lesteri and his Honour said, in relation to her claim: She was evicted by you from your boarding house and you wouldn't give her $600 refund of her security bond, if that's what it's called. 12 Mrs Wilson responded: Well, that was not stated on the claim, but I can accept that as the matter at hand. I do not take bonds, first of all. Ms Lesteri was given the terms and conditions under which she could live in my house. She came to a Western home and I had every right to assume that she knew how to live in a Western home and I did accept payment of $1,200 from her on 25 July 2010 as pre-payment of rent for a room as a lodger from 25 July 2010 to 25 July 2011, this being $600 for each four weeks’ rent and the equivalent, and $600 as surety. 13 Mrs Wilson went on to say: Her rent was due on 21 August. She was unable to pay her rent. I gave her four days and after that, I decided that because there has been a fair amount of … (Page 5)
14 Mrs Wilson then offered to read a statement to the court. The learned magistrate declined this offer and stated: I am going to say that there is no way I will set aside this default judgment and I can tell you also that if my reading is correct, there is going to be legislation brought in to protect unsuspecting overseas students from your predatory-type actions. 15 His Honour continued: You are getting around the ResidentialTenancies Act and you are calling roses by any other name, I have to say, but what you do unfortunately, Ms Wilson, you appear before this court regularly. You do know the procedures and when it comes to the pre-trial conferences, you are generally waiting and if they are one minute late, you are knocking on the door or you are going into the registry at the counter. You know darn well, so you have got no reason, firstly, to suggest that you didn't attend. I'm satisfied that Ms Lesteri, and I have read the documentation in her affidavit, she says that you were not here. I accept that because you normally would be here and knocking on the door if it's one minute late. You knew. You have been in there probably 50 times into that pre-trial conference. 16 Mrs Wilson denied that statement and his Honour continued: Maybe 30 or 50 times, and in fact, you are getting very, very close to being regarded by the Supreme Court of Western Australia as a vexatious litigant, so Ms Wilson, I am not granting your - I don't need to hear from Ms Lesteri. I'm not granting your application to set aside that default judgment. The default judgment stands. You are to pay Ms Lesteri the sum of $600 plus the various court costs. Her claim is $735.05. That remains, and that stands, and I hope that the legislation comes in soon to stop any further predatory-type actions on your behaviour. 17 The hearing was then concluded. 18 Mrs Wilson's notice of appeal sets out the grounds of the appeal as follows: (1) The manner in which Magistrate Jones presided over the hearing of 9 April completely compromised the claim, in that Magistrate Jones insisted that I did not attend court; (2) I was present at all times, but was not properly called. When called, I could not find who had called my name as the lady did not give me two seconds to get from my seat to find who had called. I asked court employees and people present, but could not find the registrar as she had quickly closed the door, thus putting the respondent at a disadvantage; (Page 6)
(3) Magistrate Jones failed to allow the respondent to speak in her defence against the claim. 19 The grounds of appeal mistake the date of hearing and refer to the appellant as the respondent. 20 The notice of appeal sets out a number of points which I find to be Mrs Wilson's attempt to set out her defence to the claim and I read from the third page of the notice of appeal from par 4 as follows: In contracting to rent a room at 43B Second Avenue, Claremont, the appellant deliberately misled the respondent by failing to inform her of the appellant's ignorance of western plumbing, thereby causing damage. The appellant failed to maintain her lodgement in good order, causing a prolonged and odious smell in the house. The appellant is negligent in failing to maintain a reasonable standard of personal cleanliness. The appellant is negligent in failing to advise the respondent that she lacked any knowledge of the usage of kitchen appliances or cooking skills, causing a danger of cooking oil fire and subsequent smoke damage to the house. The appellant is negligent in leaving a quantity of cooking oil on the floor, the walls and storage jars as a result of her attempts to use the cooking stove without any knowledge of the use of the equipment. 21 In the course of the hearing, Mrs Wilson stated that when Ms Lesteri left her house, it was four days after her rent for the next month was due, and that accordingly, she was in arrears of at least four days of rent. Mrs Wilson also said that Ms Lesteri caused damage to her premises. She states that a shower head was damaged and replaced at a cost of $68, and that a wooden credenza in the bathroom, which I understand was made mainly of chipboard, was damaged by water as a result of Ms Lesteri's use of the bathroom and that she had obtained a quote for a replacement in the amount of $403 (which includes $4 for the cost of casters). 22 Mrs Wilson also said that she had to clean Ms Lesteri's room to remove an odour in the room and that she would claim the cost of her time in doing so, notwithstanding that she had not incurred actual financial expense in relation to the cleaning. 23 There was some discussion in the course of the hearing about the nature of the surety, whether it was a bond. This question does not bear on the merits of the appeal, but it is a question which might fall for determination upon a full hearing of the merits of the claim by Ms Lesteri and the counterclaim by Mrs Wilson. This court is not concerned directly with the merits of Ms Lesteri's claim. (Page 7)
24 Because it is a relatively small claim ($600), and in saying that, I do not suggest that it is not important as far as Ms Lesteri is concerned, it was dealt with as a minor case claim under the Magistrates Court (Civil Proceedings) Act 2004. 25 The Act provides, in s 27: The primary object of the court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties. 26 This provision reflects the policy of the legislation which is to enable small claims to be resolved either by negotiation and compromise, or by adjudication by the court without the parties being put to legal expense and in a timely and efficient manner. However, the rules of natural justice apply to the resolution of minor case claims as they do to any matter before a court. 27 In this case, it is Mrs Wilson's contention that she was denied natural justice. 28 Section 40(1) provides: A party to a case that is not a minor case may appeal to the District Court against – (a) any order made by the Magistrates Court in the course of proceedings in the case, or (b) the judgment of the Magistrates Court in that case. 29 Section 40(2) provides: An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32. 30 Section 32 relevantly provides: (1) except as provided by this section, no appeal lies against – (2) If a party to a minor case is dissatisfied with the judgment of the court in the case, then – (Page 8)
(a) if the court was constituted by a Magistrate, an appeal lies against the judgment under Part 7, and subject to subsection (3), Part 7 applies to the appeal. … (3) Despite Part 7, an appeal against a judgment in a minor case may only be made on the grounds – 31 As the order made on 23 February 2011 was by the magistrate and as the grounds of appeal set out in the notice of appeal allege a denial of natural justice, this court may entertain the appeal. 32 There are two basic principles of natural justice. The first is that a party who may be affected by a decision must have the opportunity to be heard; and the second is that the decision-maker may not appear to bring a biased or prejudiced mind to the matter to be decided. 33 Both rules were breached. 34 I am satisfied that the learned magistrate did not hear Mrs Wilson on the merits of the application. 35 Also, the statements made by the learned Magistrate in the course of the hearing on 23 February indicate a bias against the appellant, Mrs Wilson, and a pre-judgment of her defence to Ms Lesteri's claim. 36 My decision in this matter involves no determination of the merits of Ms Lesteri's claim. I indicated to Ms Lesteri at the hearing that it is regrettable that my decision to uphold Mrs Wilson's appeal will require a further hearing in the Magistrates Court. That, it seems to me, is the inevitable consequence of my finding that Mrs Wilson has made out her grounds of appeal with respect to the breaches of the rules of natural justice by the court below. (Page 9)
37 I would make some further observations about this matter. It would seem to me to be quite evident from the fact that Mrs Wilson's application to set aside the default judgment and her affidavit in support were filed on the same day as the pre-trial conference, that is, 1 February 2011. It would appear, therefore, however it occurred, that Mrs Wilson did not respond when the matter was called on for a pre-trial conference, but acted very soon after the default judgment was entered to apply to set aside the decision made in her absence. 38 There was no undue delay. There being an affidavit dated the same day as the default judgment stating that Mrs Wilson had not been able to respond to her name being called, the court hearing the application to set aside the default judgment should have been slow to dispute her evidence that that was in fact what occurred, notwithstanding that Ms Lesteri had filed an affidavit in which she stated simply that she did not see Mrs Wilson at the court on that day. 39 It is an issue that was not appropriately determined in the manner that the learned magistrate saw fit. 40 As to the merits of the defence, it would appear very clear to me from the transcript that his Honour brought to bear on the decision his knowledge of other claims made against Mrs Wilson and his opinion that Mrs Wilson frequently acted in a way that was unfair to overseas students who took lodging at her house. What the basis of his Honour's knowledge and opinion was, whether there is any substance in his comments to Mrs Wilson, I am not concerned to determine. The fact of the matter is that his Honour clearly demonstrated prejudice against Mrs Wilson in the peremptory manner in which the application to set aside was disposed of. In the circumstances, the orders are as follows: 1. The appeal is allowed. 2. The decision of his Honour Magistrate Jones on 23 February 2011 be set aside. 3. The appellant have leave to defend the respondent's claim. 4. The matter be remitted to the Magistrates Court for a hearing by a different magistrate.
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