| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : YATES -v- CRAYBROOKE NOMINEES PTY LTD [2014] WADC 28 CORAM : DEANE DCJ HEARD : 25 JANUARY 2013 DELIVERED : 7 MARCH 2014 FILE NO/S : BUS APP 1 of 2012 BETWEEN : GAVIN GEOFFREY YATES Appellant
AND
CRAYBROOKE NOMINEES PTY LTD
Respondent
Catchwords: Appeal against entry of default judgment against appellant in Magistrates Court - Whether magistrate erred in ordering that appellant pay a sum of money into court as a condition in setting aside the default judgment - Whether cause of action in indorsement of writ same as in statement of claim - Whether appellant denied procedural fairness in hearing in Magistrates Court - Whether when appellant failed to meet conditions attaching to setting aside of default judgment it then stood against the appellant - Whether judgment then merged so as to prevent appellant arguing an application to strike out the respondent's statement of claim before another magistrate Legislation: Magistrates Court Act 2004
Magistrates Court (Civil Proceedings) Act 2004 (WA) Result: Both appeals dismissed
Representation: Counsel:
Appellant : Mr R V Lonnie
Respondent : Mr B L Nugawela
Solicitors:
Appellant : Forward Law Legal Services
Respondent : Success Legal
Case(s) referred to in judgment(s):
Bale v Mills [2011] NSWCA 226
Batiste v Gilmar-Latham [2001] NSWCA 392
Carrier Air Conditioning Pty Ltd v Thommesen & Ors [2005] WADC 195
Commonwealth Bank of Australia v Cann [2012] WADC 115
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Leslie v GE Commercial Corporation (Australia) Pty Ltd [No 2] [2009] WASCA 28
M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Re Michelides; Ex parte Chin [2008] WASC 256
Re Monger; Ex parte Cross [2004] WASCA 176
Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146
Zurich Australian Insurance Limited v Metal Minerals Insurance Pte Ltd [2007] WASC 62
1 DEANE DCJ: This matter has a long and somewhat convoluted history. The two appeals in question being BUS 1 of 2012 and BUS 2 of 2012 arise out of a number of hearings before and decisions by magistrates in the Busselton Magistrates Court.
2 Before turning to the history of the matter relevant to the two appeals, it is convenient first set out a chronology of events. This chronology is taken from a document filed on behalf the respondent although it accurately reflects in large part the chronology as I understand it adopted by the appellant. It is convenient to refer mainly to the respondent's chronology because various documents that are referred to in the chronology can be found with ease in the appeal book filed on behalf of the respondent, though some of those documents are common to those referred to in the appellant's submissions and two appeal books.
Chronology of events
| No. | Date | Event | Appeal Book pages | | 1. | 21 May 2003 | The defendant made his final payment to the plaintiff, in the amount of $10,578.94. As of this date, the defendant owed the plaintiff the amount of $63,226.46. | - | | 2. | 27 September 2004 | The plaintiff's solicitors wrote to the defendant and requested payment. | - | | 3. | Late 2004 or Early 2005 | Lyall (plaintiff's director) spoke to the defendant. The defendant said words to the effect of 'I can't afford to pay you and I'm not going to pay you because I dispute some of the bulk deliveries'. | - | | 4. | 14 February 2005 | The plaintiff's solicitors wrote to the defendant again and requested payment. | - | | 5. | 23 August 2006 & 12 April 2007 | The plaintiff's solicitors wrote to the defendant again and requested payment. | - | | 6. | 17 October 2007 | A writ was filed at the Busselton District Court in this matter (BUS 7 of 2007) | 4 - 7 | | 7. | 22 December 2007 | Writ served. | - | | 8. | 11 January 2008 | Memorandum of appearance filed. | 8 - 9 | | 9. | February 2008 | Statement of claim filed. | 10 - 19 | | 10. | 29 February 2008 | Plaintiff's sworn affidavit of discovery | - | | 11. | 26 March 2008 | Defence filed. | 20 - 24 | | 12. | 10 December 2008 | Names of parties changed by consent order. | - | | 13. | 10 March 2010 | Plaintiff files Entry for Trial Certificate | 25 | | 14. | 27 May 2010 | At pre-trial conference at District Court, order was made transferring the action to the Busselton Magistrates Court. | - | | 15. | 26 May 2011 | Claimant's Listing Conference Memorandum (Form 32) at Busselton Magistrates Court Case No:229 of 2010) filed with: | 26 – 27 | (a) Statement of Lyall Johnston; | 28 - 37 | (b) Statement of Graham Morris; | 38 - 40 | (c) Statement of Rodney Johnston | 41 - 45 | | 16. | 5 July 2011 | Application that defendant file Listing Conference Memorandum within 14 days, together with affidavit Rodney Johnston sworn 24 June 2011 (both served on 12 July 2011) and affidavit of service sworn 10 August 2011. | 46
47
48 | | 17. | 10 August 2011 | Order made by Magistrate Pontifex that defendant lodge and serve its Listing Conference Memorandum within 14 days. | 49 | | 18. | 23 September 2011 | Application for springing order (for judgment in the claim), together with affidavit of Rodney Johnston sworn 15 September 2011 (both served on 6 October 2011) and affidavit of service sworn 2 November 2011. | 50
51 – 55
56 | | 19. | 2 November 2011 | Order adjourning application for springing order to 16 November at 9.30 am. | - | | 20. | 4 November 2011 | Defendant purportedly files a Listing Conference Memorandum dated 2 November 2011. | 57 | | 21. | 16 November 2011 | The court (Magistrate Edwards) made orders that the defendant file within 7 days of the date of the order witness statements for all witnesses that the defendant intended to call at trial, failing which there be judgment in the amount claimed, together with interest and costs. | 58 | | 22. | 24 November 2011 | Judgment was entered against the defendant as per the springing order made on 16 November 2011. | 58A | | 23. | 5 December 2011 | Application for property seizure (dated 30 November 2011) filed. | 65 - 66 | | 24. | 6 December 2011 | Property seizure order made. | 67 - 68 | | 25. | 9 December 2011 | Property seizure order received by Sheriff/Bailiff | 67 - 68 | | 26. | 31 January 2012 | Transfer of Land Act Application (to register property seizure and sale order) dated 30 January 2012, filed at Landgate. | 69 - 70 | | 27. | 24 April 2012 | The defendant applied to the Busselton Magistrates Court seeking (inter alia) orders setting aside default judgment and suspension of enforcement, together with affidavit of Gaven Yates sworn 20 April 2012. | 71 – 72 73 - 85 | | 28. | 10 May 2012 | Claimant files Response to Application, with affidavit of M Krawitz sworn 10 May 2012. | 86 – 87 88 - 96 | | 29. | 27 June 2012 | The Court (Magistrate Pontifex) inter alia made the following orders: 1. The time for bringing the application to set aside judgment be extended to 20 April 2012. 2. Judgment be set aside conditional upon the defendant paying into the court the sum of $41,951.34 by 25 July 2012; 3. Execution of judgment be stayed until 4 pm on 25 July 2012; and 4. The defendant file his witness statements by 4 pm on 25 July 2012. | 97 | | 30. | 17 July 2012 | Appellant (Defendant) files Appeal Notice in the District Court (BUS 1/2012) | 114 - 116 | | 31. | 26 July 2012 | Appellant (Defendant) then files another application in Magistrate's Court to, inter alia, vary or discharge the orders of Pontifex SM made on 27 June 2012 and for the plaintiff's statement of claim to be struck out, together with affidavit of Andrew Forward sworn 25 July 2012. | 117 – 118 119 - 120 | | 32. | 29 August 2012 | Appellant (Defendant) files written submissions in Magistrates Court in support of 26 July applications. | 121 - 123 | | 33. | 29 August 2012 | Respondent (Claimant) submits written submissions in opposition (by facsimile). | 124 - 126 | | 34. | 29 August 2012 | Appellant's (Defendant's) 26 July applications dismissed with costs. | 127 | | 35. | 18 September 2012 | Appellant files an Appeal Notice at the Busselton Magistrates Court (BUS 2 of 2012). | 144 - 145 | General background to the matter 3 The respondent (who was originally the claimant in this matter), is a company which sells fuel, oil and grease. The respondent asserts that in or about 1992 or 1993 it approached the appellant (who was originally the defendant in this matter) to provide him with bulk deliveries of petroleum products on a cash basis, which it then commenced doing. It is further alleged that in January 1996 an oral agreement was made between Mr Lyall Johnston (Mr Johnston), a director of the respondent acting on behalf of the respondent, and the appellant that the respondent would provide the appellant with petroleum and fuel supplies on a 30-day credit term, which it also commenced to do. In 2001 it would seem that the appellant was experiencing some financial difficulties as a result of which he, according to the respondent, was failing to pay outstanding accounts. 4 After further discussions regarding the problem it would seem that the appellant indicated to the respondent that he would be able to pay the outstanding accounts when he received money for contracts that the appellant was performing. In about May 2002 Mr Johnston, again as a representative of the respondent, advised the appellant that if the respondent did not receive payment of all outstanding amounts then the respondent would not continue to allow the appellant to purchase goods on credit from the respondent. On 16 May 2002 Mr Johnston confirmed with the appellant that the respondent would no longer supply the appellant with fuel on a credit basis. Following this on 21 May 2003, the appellant made his final payment to the respondent in the sum of $10,578.95. According to the respondent as at that date the appellant still owed the respondent the sum of $63,226.46. It should be noted that there is considerable dispute between the parties concerning the precise amount of monies which at that point the appellant allegedly owed the respondent. 5 In any event on 27 September 2004 the respondent's solicitors issued a letter of demand to the appellant who, it would seem, was still experiencing some financial difficulties. Moreover he disputed some of the alleged bulk deliveries of petroleum products to him. On 14 February 2005 a further letter of demand was sent to the appellant. This did not resolve the issue and as a result a writ of summons was filed by the respondent in the District Court at Busselton on 17 October 2007. The Indorsement of the Claim attached to the Writ claimed the sum of $63,226.46 for petroleum products supplied by the respondent to the appellant at the request of the appellant. In addition the respondent claimed interest from 30 December 2002 until the date of judgment. There was no reference to any specific dates on which or the period during which the petroleum products were allegedly supplied to the appellant. On 8 February 2008 the respondent filed a statement of claim in the District Court claiming payment in the amount of $63,226.46. That document is reproduced commencing at page 10 of the respondent's appeal book and page 15 of the appellant's appeal book 1. It should be noted that in the document the appellant is referred to as trading as Cowaramup Earthmoving but I understand that this fell away. This may be because in par 2 of his defence the appellant pleads he has never traded as Cowaramup Earthmovers [sic]. Whatever the reason the appellant is as currently described in the court documents relevant to this appeal. 6 In that statement of claim par 4 refers to an agreement between the parties (Contract) relating to the seller's supply of petroleum products and the terms on which that was to occur including the terms of payment. Essentially the respondent would supply the appellant with various petroleum products on credit and payment would be made on account as agreed pursuant to the agreement. Although counsel for the appellant made the point that in relation to the particulars pleaded there was no reference to a contract, rather it was reference to an agreement, it seems to me that there is nothing in this observation in the sense that par 4 of the statement of claim makes it quite clear that by the term 'agreement' the respondent was referring to an alleged contract between the parties. 7 The particulars refer to the agreement between the parties being made and amended from time to time partially orally, partially in writing and partially by conduct and this is elaborated upon in the particulars. The statement of claim alleges that between January 2001 and 16 May 2002 the respondent at the request of the appellant supplied amounts of fuel to the appellant in relation to which he paid limited amounts of money only, in that the appellant failed or neglected to pay for some of the fuel delivered albeit that he was provided with monthly invoices from the respondent. 8 It is important to note that it is contended on behalf of the appellant that any monies claimed by the respondent up to October 2001 ie, between January 2001 and October 2001 fall outside the limitation period of six years in relation to which a claim can be made. It is further submitted that on the appellant's calculation the monies claimed by the respondent during that period being the period during which the claim is allegedly barred by the statute of limitations amount to the sum of $21,275.12 (Limitation Act 2005). The amount claimed for the period in question is to be found in the schedule attached to the affidavit of the appellant sworn 20 April 2012 at page 43 of the appellant's appeal book 1. 9 The appellant's defence dated 20 March 2008 and filed on 26 March denies that any such agreement as pleaded by the respondent in par 4 of the statement of claim was ever made between the parties and asserts that throughout the relationship of the parties and in breach of its own alleged agreement with the appellant, the respondent continued to supply petroleum products to the appellant, regardless of whether the appellant had paid for the products which had been supplied during the preceding month or any preceding months. In addition, in par 8.1 of the defence the appellant pleads that any claim by the respondent for petroleum products allegedly supplied to the appellant prior to 8 February 2002 (this date is an error and at the hearing of this matter the court was informed that the date should be 17 October 2001) is barred by the operation of div 2 of pt 2 of the Limitation Act. 10 The action was transferred from the District Court to the Busselton Magistrates Court on 27 May 2010 as the amount involved a claim of less than $75,000. The following day the respondent's solicitors filed a listing conference memorandum at the Busselton Magistrates Court. On 5 July 2011 the respondent filed a Form 23 application seeking orders that the appellant file a listing conference memorandum within 14 days and pay the costs of that application. This was accompanied by an affidavit sworn by Mr Johnston on 24 June 2011 and both documents were served on the appellant. Her Honour Magistrate Pontifex in the Busselton Magistrates Court made an order of the nature sought on 10 August 2011. Counsel for the appellant pointed out that at this time he was not legally represented. It is common ground that the appellant did not file or serve the Form 32 listing conference memorandum as ordered. As a result, on 23 September 2011 the solicitors for the respondent filed an application for springing orders with the court, again supported by an affidavit sworn by Mr Johnston on 15 September 2011. Both documents were served on the appellant on 6 October 2011. The springing order sought essentially that unless the appellant filed a listing conference memorandum within seven days then judgment would be entered for the respondent in the sum of $63,226.46 together with interest and costs of the action. 11 It would appear that the springing order application was originally to have been heard on 2 November 2011 but on that date the hearing was adjourned to 16 November 2011. In the meantime on 4 November 2011 the appellant filed a listing memorandum certificate dated 2 November 2011. By this time the appellant had legal representation and in the form filed he raised the point that part of the respondent's claim was barred by operation of the Limitation Act. 12 When the matter came on for hearing before her Honour Magistrate Edwards on 16 November 2011 it would appear that her Honour extended some latitude to the appellant in the sense that she made an order that was somewhat different to that sought by the respondent in its application. The appellant was ordered to file within seven days of the date of the order witness statements of all witnesses he intended to call at trial, failing which there would be judgment entered against the appellant for the amount claimed by the respondent being $63,226.46 together with interest and costs. The effect was therefore that there would be default judgment entered against the appellant unless he complied with the order in the specified timeframe. It should be noted that neither the appellant nor his solicitor attended before the Magistrates Court on either 2 or 16 November 2011 the reason being, according to his counsel, that the appellant believed he did not have to attend given he had filed his Form 32 listing conference memorandum on 4 November 2011. Further, at the hearing of these appeals counsel for the appellant advised the court that the appellant at the time was working out of Christmas Creek in the north west of Western Australia and he was unaware of the existence of the order until after judgment had been entered against him. As an aside the observation must be made that if this was the case the appellant was presumably in receipt of some form of income by way of wages or a salary. Counsel for the appellant further pointed out that the judgment amount entered by her Honour on 24 November included an amount which the appellant contends was barred by operation of the statute of limitations as well as interest on that part of the judgment debt which was also statute barred. Counsel's argument is that therefore this was an 'unlawful order' as were the consequential orders which followed. 13 The appellant failed to file his witness statements as ordered within the requisite seven day period. As a result on 24 November 2011 judgment was entered for the respondent against the appellant in the amount of $97,949.32. This sum included a claim for the amount of $63,226.46 together with interest in the sum of $33,788.91 and costs in the sum of $933. On 5 December 2011 the respondent filed an application dated 30 November 2011 for seizure of property and that order was made the following day. Three days later on 9 December the property seizure orders were received by the sheriff/bailiff. Following this on 31 January 2012 there was an application pursuant to the Transfer of Land Act 1893 to register the property seizure and sale order. 14 Having become aware of the default judgment entered against him, the appellant on 24 April 2012 made an application to the Busselton Magistrates Court seeking inter alia orders setting aside the default judgment and suspension of the enforcement of the judgment. This was filed together with an affidavit sworn by the appellant on 20 April 2012 which set out the background to the matter and the reasons for the delay. The respondent filed a response to the application on 10 May 2012. 15 The application on the part of the appellant to set aside the default judgment came on for hearing before her Honour Magistrate Pontifex on 27 June 2012. The transcript of those proceedings before her Honour is to be found at pages 98 – 113 inclusive of the respondent's appeal book. 16 In the course of these reasons reference will be made in greater detail to some of the contents of that transcript. At this point however, it is sufficient to note that on the occasion in question the respondent was represented by counsel and the appellant was represented by counsel, being the same counsel who represented the appellant in these appeals. Having heard argument from both counsel as to the application and other matters relating to the action, her Honour Magistrate Pontifex at pages 107 – 111 of the transcript in the respondent's appeal book gave reasons for the orders which she was minded to make, being as appears from page 97 of the respondent's appeal book: 1. Time for bringing the application to set aside judgment is extended to 20 April 2012. 2. That conditional upon the defendant [this being a reference to the appellant in these proceedings] paying into court the sum of $41,951.34 by 4.00 pm on 25 July 2012, judgment to be set aside. 3. Execution of the judgment is stayed until 4.00 pm on 25 July 2012. 4. The defendant [again being a reference to the appellant in these proceedings] is to pay the costs of this application including the appearance of 15 May 2012 to be taxed if not agreed. 5. The defendant [again being a reference to the appellant in these proceedings] is to file his witness statements by 4.00 pm on 25 July 2012. 17 The decision made by her Honour Magistrate Pontifex is the subject of the first appeal being BUS 1 of 2012. The grounds of the appeal are that the Learned Magistrate erred in law and in fact by making the setting aside of the default judgment conditional on the appellant paying the sum of $41,951.34 into court by 25 July 2012 in that: 1. Failure by the appellant to satisfy the condition would result in the judgment entered against him by default on 24 November 2011 remaining in force and the judgment debt being immediately enforceable. 2. The judgment debt includes an amount which is barred by the Statute of Limitations and it would be wrong and against the principles of justice to allow the plaintiff [respondent] to enforce a judgment debt which is in part unlawful and defective. 3. The judgment debt includes an amount for interest calculated on that part of the judgment debt which is 'statute-barred' and it would be wrong and against the principles of justice to allow the default judgment to remain in place in those circumstances. 4. The learned magistrate erred in law and in fact by ordering the appellant to pay an amount into court as security for costs as a condition of the appellant being allowed to defend the action when the need to do so was against the facts or not supported by them sufficiently and was an unfair impediment to the appellant's right to defend the action and was further prejudicial to him in that the court was aware of the appellant's financial circumstances and that he had been facing insolvency and in any event the requirement for the appellant to pay $41,951.34 into court was unreasonable in all of the circumstances. 5. The learned magistrate erred in law and in fact by ordering the appellant to pay the respondent's costs of the application to have the default judgment set aside in circumstances where part of the respondent's claim obviously included an amount which was statute barred and the respondent knew or ought to have known that the judgment debt wrongly included an amount for interest on that part of the claim which was statute barred, yet chose to oppose the appellant's application and put the appellant to the cost of applying to have a defective judgment set aside. 18 The appellant's notice of appeal relevant to the above matter was filed on 17 July 2012. It should be noted that on 26 July 2012 the appellant made another application in the Busselton Magistrates Court inter alia to vary or discharge the orders of her Honour Magistrate Pontifex. When that matter came on for hearing on 29 August 2012 before a different magistrate being her Honour Magistrate Hamilton, she took the view that the court did not have jurisdiction to hear the application and make the orders sought and so the application was dismissed. On 18 September 2012 the appellant appealed against that decision which forms the appeal BUS 2 of 2012. 19 Counsel for the appellant submits that the manner in which her Honour Magistrate Pontifex framed the orders the subject of the appeal BUS 1 of 2012 had the effect that if the appellant failed to pay the monies into court within the specified timeframe then the original judgment would stand with the result that the appellant would have to pay the respondent the larger amount of the judgment sum notwithstanding that sum included an amount of money comprising a claim which in the submission of counsel for the appellant was in part statute barred. In addition, counsel for the appellant argues that it was unfair that the appellant was ordered to make a payment into court as there was evidence before the learned magistrate that the appellant was in difficult financial circumstances and therefore it would extremely onerous for the appellant to comply with the order requiring him to pay that amount of money into court. 20 In order to put into context these particular submissions made on behalf of the appellant it is necessary to consider in some detail various aspects of transcript of the proceedings before her Honour Magistrate Pontifex on 27 June 2012. 21 At the outset of those proceedings, having taken appearances of counsel, her Honour was advised by counsel for the respondent that he had recently received an affidavit which appeared to have been filed on behalf of the appellant and while counsel did not have concerns in relation to parts of the document, he did have an issue with that affidavit and another affidavit filed on behalf of the appellant in so far as the material referred to without prejudice communications. Counsel for the respondent said he would oppose that material being before the court. Her Honour then asked counsel for the appellant if he agreed with that observation, this presumably being a reference to the concerns raised by counsel for the respondent and he indicated that he did not have a difficulty with that. 22 This material which is to be found at pages 77 – 78 and 83 – 85 of the respondent's appeal book was therefore not before the learned magistrate because of the objection raised by counsel for the respondent that it breached the 'without prejudice' privilege attaching to it. Counsel for the appellant agreed with this submission. It is the case that those materials do refer, though not in great detail, to the appellant's financial circumstances and in my view would not in any event permit without more information being supplied allow the drawing of the inference that the appellant would not be in a position to pay $41,951.34 into court within 30 days. 23 Counsel for the appellant then made submissions raising a number of issues. He was critical of the manner in which the statement of claim had been drafted and stated in his opinion that there should have been an application to have the statement of claim set aside or to permit an amendment to it to disclose a proper cause of action and a proper account of the damages sought. Clearly that did not occur. He also submitted that there were difficulties concerning exactly what constituted the contract and the amount of monies that could be claimed, pointing out that the judgment that was entered was with respect to the total amount claimed and that included a period during which monies were claimed that was statute barred or subject to the limitation argument. Counsel pointed out that the appellant had in fact filed his Form 32 listing conference memorandum where the only witness was to be the defendant (appellant). Her Honour responded that the appellant was still obliged to file his witness statement with the court no matter how clear the appellant's defence might have been. The learned magistrate was alive to the fact that any component of interest awarded by the court was discretionary and she also was aware that another issue was that in the words of the learned magistrate 'it may well take into account monies which may well be statute barred as well'. 24 Counsel for the respondent submitted that if the court were minded to allow the appellant some leeway it would be necessary to look at the merits of the defence raised in the application and in the action. Counsel pointed out that s 19(3) of the Magistrates Court Act 2004 provides that a court may set aside a judgment and may do so on condition such as payment of costs and other matters. Her Honour was then referred by counsel for the respondent to a number of authorities relevant to delay and the lack of an application to strike out the statement of claim. Reference was also made to the argument concerning part of the claim being statute barred and the principles relating to the point at which the cause of action in any matter accrues. 25 Her Honour Magistrate Pontifex then raised with counsel for the respondent the hypothetical that if it were to be the case that the court believed there were some issues that ought to be tried and therefore if the court were to contemplate conditional leave to set aside the default judgment being granted what would be the respondent's view on conditions that ought to be attached to such an order. It seems to me at that point her Honour was clearly considering the option of applying or attaching conditions to any leave that may be granted to set aside the default judgment. Counsel for the respondent indicated that if that were to occur the respondent would be seeking an order for the costs of the application before the court as well as orders as to other matters. It was then that her Honour directed counsel's attention very specifically to the issue of whether the respondent was seeking an order that some money ought to be paid into court as a condition of setting aside the judgment. Counsel for the respondent agreed that this was an order that would be sought. 26 Counsel for the appellant then addressed the court pointing out there would be no prejudice to the respondent if the default judgment was set aside and he reiterated that the statement of claim was defective in that it did not disclose a cause of action. Given the history of the matter counsel for the appellant argued that in the particular circumstances if the appellant was successful in his application then the respondent should not be awarded the costs of the application and court appearance. Relevantly, counsel then said to the learned magistrate that if she was in favour of a payment into court then the appellant would be able to make a modest payment at that point as his financial circumstances to which counsel submitted reference had been made, meant that as a condition of pursuing the claim the appellant could not meet the full amount. Counsel for the appellant made no further submissions and did not descend into any further detail at that point regarding the appellant's financial circumstances, nor did he make the point that in reality the appellant was impecunious. Counsel did not for the assistance of the court make a suggestion or a submission as to what might be an appropriate amount of money to be paid into court as a condition, which would both satisfy the order that her Honour was contemplating and have the effect that the appellant could continue to pursue the matter. 27 A copy of the appellant's affidavit sworn 20 April 2012, in support of his application to have the default judgment entered against him on 24 November 2011 set aside, is found at pages 73 – 76 of the respondent's appeal book. At par 23 he deposes that on his calculations the respondent's claim can only be for $41,951.34 at most, explaining how that amount is arrived at. Nowhere in the affidavit does the appellant refer in any detail to his financial circumstances or his ability or lack thereof to pay any amount of monies into court within any specified period. It is clear that in circumstances such as arose in the proceedings before her Honour Magistrate Pontifex it was incumbent upon the appellant, through his counsel if necessary to provide the requisite level of detail as to his financial circumstances: Leslie v GE Commercial Corporation (Australia) Pty Ltd [No 2] [2009] WASCA 28; Legal Profession Complaints Committee v Detata [2012] WASCA 214. 28 Having heard both counsel her Honour Magistrate Pontifex then went on to deliver comprehensive extempore reasons. The nature of the claim made by the respondent and the current application before her Honour were noted. She then went on to refer in some detail to the history of the matter, including the point raised in the appellant's defence that the claim by the respondent for petroleum products which had been supplied prior to a particular date was barred by operation of the Limitation Act. The history of the matter was further canvassed and reference was made to the application for the subsequent springing order in respect of the failure of the appellant to file a listing conference memorandum and the springing order made by her Honour Magistrate Edwards on 16 November 2011. 29 In the opinion of her Honour Magistrate Pontifex, that order was clear in its terms namely that the appellant was within seven days of the date of the order required to file witness statements for all witnesses he intended to call and failure to do so would result in a judgment being entered in the sum of $63,226.46 with interest and costs. That, in the opinion of her Honour Magistrate Pontifex, made it clear that the judgment sum be entered and that interest and costs be in addition to the judgment sum. Clearly the order was not complied with and so default judgment was entered by the court. Her Honour Magistrate Pontifex noted that the judgment entered by the court was cause for some 'small difficulty' because the court in entering the judgment by its registrar did so for the entirety of the sum being $97,949.32, so it appeared that the registrar had added together the sum claimed with interest and costs giving on the face of it an amount which exceeded the court's jurisdiction. Nonetheless, she noted it was quite clear that the actual court order was for a lesser amount. In relation to s 10 of the Magistrates Court Act her Honour Magistrate Pontifex stated that she considered that the particular judgment concerned had been regularly entered. 30 Although enforcement proceedings were commenced on 5 December 2011 the learned magistrate noted that it was not until April 2012 that the application before her was filed and therefore it was out of time. There was some explanation for this in the affidavit of the appellant as well as the supplementary affidavit of his solicitor and in her view whilst the latter affidavit did not explain the delay per se, it did put the matter into some context. She noted that the respondent objected to the setting aside of the judgment on the basis that the delay was not adequately explained and further on the basis that there was lack of merit in the argument put forward by the appellant as to his defence. 31 In relation to the issue of delay which was in the order of approximately five months, her Honour took a lenient view of the appellant's position, noting that he had complied with the order by filing the listing conference memorandum (albeit without his witness statement attached to it) and she considered the possibility that he may have believed that was all that was needed until he became aware of what had occurred when the bailiffs attended his premises. 32 In relation to the merits of the matter her Honour repeated that in her view the judgment had been regularly entered, albeit for a sum greater than the jurisdictional limit of the Magistrates Court. She noted that a regular judgment in default will not be set aside unless the court is satisfied that there is a defence on the merits of the case. Reference was then made to the argument of counsel in relation to this issue and various authorities on point. She concluded that on the material available before her there was a prima facie defence on the merits to part of the claim but not all of it. She added that in her view there was a real question to be tried and dealt with based on the factual evidence as to the arrangement between the parties and as to whether part of the judgment was statute barred. That meant there was a real argument as to when the cause of action accrued and thus from which time it ran. 33 The learned magistrate specifically noted that this was not a case which in her opinion could be resolved on the balance of convenience by reference to the affidavit material alone. She also stated there was in her view a real issue to be tried as to whether payment of pre-judgment interest should be allowed at the date of the hearing before her. Section 12 of the Magistrates Court Act is discretionary and it was noted there was a long period of time between some of the amounts alleged to be owed being owed, and the claim being made, given that the claim was made approximately five years after some of the amounts allegedly owed were said to have been raised. That posed a question as to whether the discretionary claim for interest would necessitate the respondent mitigating its loss in respect of interest, which was yet another issue. The interest entered in the learned magistrate's view did include interest on those parts of the amount claimed which arguably were statute barred. She noted however, that it was clear there was a large part of the amount claimed where it could be said there was no arguable defence. This was an issue that the appellant had never disputed in the sense of alleging he did not receive the majority of the product and did not pay for it. Her Honour Magistrate Pontifex was not persuaded that there was irreparable prejudice to the respondent in the application being granted. 34 Her Honour then went on to make the conditional orders to which reference has previously been made. These included the conditional order that the appellant pay the sum of $41,951.34 into court by 4.00 pm on 25 July 2012. When her Honour went on to state her reasons for the order that the appellant pay the costs of the application, including the appearance of 15 May 2012, counsel for the appellant interjected and indicated that he had not been heard on that particular issue. At that point he still said nothing about the payment of monies into court in the sense of challenging the amount that her Honour had fixed. A little later counsel for the respondent raised the issue of the payment into court again because he asked her Honour if he could have clarification of the amount that was to be paid into court, as apparently he had missed what her Honour had said about that particular matter. In response her Honour repeated the sum being $41,951.34. She said that figure had been taken from the appellant's affidavit. Again at that point, counsel for the appellant said nothing by way of objection to the amount nominated nor did he elaborate upon why that amount nominated would be onerous upon the appellant because it would in effect prevent him from pursuing the matter. Counsel for the appellant did however request confirmation that the appellant was to file his witness statement by 25 July. He then went on to advise the court that should the matter proceed then the appellant would bring an application in relation to the adequacy of the pleadings in the statement of claim. In response her Honour observed that this was a matter that was for counsel and those instructing him and she did not intend to deal with that issue in the course of the hearing before her. 35 It was following this as has been previously noted that on 17 July 2012 the appellant filed a notice of appeal in the District Court against the decision of her Honour Magistrate Pontifex. 36 Also, as has been previously noted, on 26 July 2012 the appellant filed a further application in the Busselton Magistrates Court to vary or discharge the orders her Honour Magistrate Pontifex made on 27 June 2012 and seeking an order that the respondent's statement of claim be struck out. Not surprisingly the application was opposed by the respondent and when it came on for hearing before her Honour Magistrate Hamilton on 29 August 2012 the applications were dismissed with costs and this founded the second appeal BUS 2 of 2012 filed on 18 September 2012. 37 In relation to appeal BUS 2 of 2012 before this court, counsel for the appellant confirmed that the original application before the Busselton Magistrates Court involved the appellant applying for orders that: 1. Until further order of the court: 2. The plaintiff's [respondent's] statement of claim filed on 8 February 2008 be struck out. 3. The orders made by her Honour Magistrate Pontifex on 27 June 2012 be discharged as being null and void and of no legal effect. 4. The judgment be set aside. 5. Execution of the judgment be permanently stayed. 6. The plaintiff [respondent] pay the defendant's [appellant's] costs of this application and of the proceedings in general. 38 This application was supported by an affidavit sworn by the appellant's solicitor, Steven Andrew Forward, on 25 July 2012. However, when the matter came on for hearing before the Magistrates Court on 29 August 2012, the appellant abandoned his application in relation to the orders made by her Honour Magistrate Pontifex on 27 June 2012 being discharged on the basis they were null and void and of no legal effect. He also abandoned his application for ancillary relief. Therefore he submitted the only matter left before the Magistrates Court at that time was the appellant's application to strike out the statement of claim of the respondent. After some discussion between counsel for the appellant and her Honour Magistrate Hamilton, particularly in relation to the issue as to whether and how her Honour had jurisdiction to hear and determine the application, counsel for the appellant advised the court that he wished to confine the application to seeking an order that the statement of claim be struck out or amended. 39 In relation to appeal BUS 2 of 2012 the appellant asserts that the learned magistrate erred in law by: 1. Refusing to consider the appellant's application on its merits or at all; 2. Making a finding that the appellant was seeking a review by her Honour of a decision which had previously been made by a different magistrate on 27 June 2012, setting aside a default judgment which had been entered against the appellant on 24 November 2011; and by 3. Ordering the appellant to pay the respondent's costs of the application. 40 In further argument before this court counsel for appellant reiterated that her Honour Magistrate Hamilton dismissed the strike out application without allowing the appellant any or a fair opportunity to argue the matter and submitted that the apparent reason why this occurred was because the learned magistrate appeared to be of the view that the appellant was seeking a judicial review of the order of Magistrate Pontifex of 24 November 2011. The short point was made that her Honour Magistrate Hamilton was wrong in law in refusing to allow the strike out application to be heard on its merits or at a later date and further was in error in dismissing the application given that she had not in reality had a hearing into the issue. 41 Essentially, the appellant's submission before the Magistrates Court in relation to striking out the statement of claim was that the indorsement of claim dated 17 October 2007 failed to nominate dates within which the petroleum goods were supplied and monies owed and failed to allege a contract between the parties to supply goods. It was said the cause of action is a claim in quantum meruit which is independent of an original contract and is sustained not because it represents an agreement reached between parties but because 'the law will compel the defendant not to disappoint the plaintiff of the fruit of his labour'. In addition it is said that the statement of claim pleads the existence of a contract between the parties which altered and varied over a number of years and it claims a sum of money by way of that breach of contract being an allegation which is not set out in the indorsement of writ. For that reason alone it was said the statement of claim failed. 42 In addition, the statement of claim pleads an oral agreement made 'in or about January 1996' which is outside the limitation period and no particulars of any contract as from 17 October 2001 are pleaded. Further it is said there is a pleading relating to monthly accounts and interest charges outside the limitation period and other reference to events occurring between 1996 and 2003. Although the plaintiff claims the sum of $63,226.46 it is put that there are no particulars provided as to which monies are claimed within the limitation period and those which are claimed outside the period. The same criticism is levelled at the claim for interest and so it is submitted that the statement of claim is flawed and a strike out application should succeed on that basis alone. Moreover, counsel argued that there is a failure in the pleading to distinguish what terms of the contract were made within and without the limitation period, making it impossible to ascertain what monies were said to be owed or properly owed. That it is said is a defect which is not capable of repair and again for that reason the statement of claim should be struck out. Further uncertainty of terms are referred to in par 4 of the written submissions filed on behalf of the appellant which were before her Honour Magistrate Hamilton. Finally, counsel for the appellant made the point that his client was entitled to know in a concise and accurate manner the case against him and due to the uncertainty and defects in the pleadings that had not occurred. As a result it is said the appellant would be prejudiced at any trial were it to proceed on the basis of the claim presently made against him. 43 Once again in relation to this second appeal being BUS 2 of 2012 it is necessary to consider in a little more detail what was said on the occasion of the application before her Honour Magistrate Hamilton on 28 August 2012. The transcript of the proceedings is contained in the appellant's appeal book 2 at pages 73 – 87 inclusive. At the commencement of the hearing her Honour queried the source of her power to set aside an order or orders made by another magistrate. Counsel for the appellant referred her Honour to s 20 of the Civil Judgments Enforcement Act 2004 however her Honour expressed the opinion that such an application would be more appropriately made to the District Court pending the disposition of the appeal which had been lodged in the District Court such application seeking an order that the judgment be stayed. She then expressed a preliminary view that an application may be made to the court to return before the same magistrate in order to reconsider the orders that were originally made. However, her Honour did not believe that there was any power to bring the matter before a different magistrate requesting that the orders originally made be set aside, as they related to payment of monies into court of a particular amount and compliance with orders relating to the filing of witness statements. That she believed would be an issue to be determined by the court to which an appeal was or could be made. 44 Counsel for the appellant then proceeded to take issue with the terms of the springing order made by her Honour Magistrate Edwards, which he submitted was wrong in law because it had the effect of a defective order being enlivened and he argued that the indorsement of claim in its terms was quite different from matters pleaded in the statement of claim. Her Honour Magistrate Hamilton observed that these were all substantive matters to be argued not before her but rather on appeal to another court. It was not a view with which counsel for the appellant agreed and he pressed the point that they could be dealt with before the Magistrates Court. Counsel made the concession that what should have occurred, but did not occur, was that the statement of claim should have been challenged on behalf by the appellant at an earlier stage. Nonetheless, he submitted that if her Honour Magistrate Hamilton could hear that particular argument then she would be in a position to decide the entire issue. On a practical note, her Honour responded that she had no knowledge of the history of the matter, it was merely an application before her at that point and she indicated that she believed it would be something of a waste of her time to consider the whole issue particularly given the application was part of a full court list that day. A short adjournment was granted whilst her Honour considered the matter as to whether she could and should hear the application. 45 When the court reconvened her Honour noted that she understood the appellant wished to be excused from complying with pars 2 and 5 of the orders of her Honour Magistrate Pontifex. Counsel for the appellant then said that if the application was unsuccessful those particular orders would not be sought and he indicated that the focus of the application he now made was to strike out the statement of claim or, failing that, raise the issue of whether it should be amended. He referred to s 17 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) advising the court that her Honour had power to deal with it pursuant to that legislation. Counsel then returned to a submission concerning the appeal to the District Court, in so far as it related to the order that a sum of money be paid into court and he also referred to the limitation argument in relation to some of the monies the subject of the default judgment which was still in existence. The point being made was that the default judgment included some of the monies that were said to be subject to the limitation argument. Once more her Honour Magistrate Hamilton pointed out that this was a different argument and it seemed apparent to her that her Honour Magistrate Pontifex was clearly persuaded to set aside the default judgment on conditions and it followed that when the appellant failed to comply with the conditions in full, the original default judgment stood. The issue of whether or not it should be so was not a matter for her Honour Magistrate Hamilton to determine given it was the subject of an appeal to the District Court. 46 Counsel for the appellant again said that the application before her Honour Magistrate Hamilton concerned the appellant's challenge to the statement of claim. Her Honour responded in effect that she could not discharge the orders made by her Honour Magistrate Pontifex and further that the appellant, in the light of the history of the matter, could not return to the Magistrates Court and request that the statement of claim be struck out because judgment in the matter had already been pronounced. In other words it seems to me that her Honour was making the clear point that she did not believe she had jurisdiction to deal with any of the arguments or applications raised on behalf of the appellant. Despite this, counsel for the appellant asserted that the judgment entered in default against the appellant was null and void. 47 At page 84 of the appeal book (page 12 of the transcript of the proceedings) her Honour Magistrate Hamilton commenced to give extempore reasons. Counsel for the appellant however, interjected and said he wished to make further submissions, reiterating that his application was for the statement of claim to be struck out. He then developed his argument as to why that should occur, referring to his submission that the indorsement of claim attached to the writ was in relation to a quantum meruit claim whereas the statement of claim alleged a contract the terms of which varied over time. Counsel submitted that the statement of claim therefore pleaded a separate cause of action and would fail as it did not comply with the indorsement of the writ. In addition, counsel argued that the statement of claim referred to particulars some of which were statute barred by the operation of the Limitation Act. This was another reason he submitted why the statement of claim was fundamentally flawed and he further noted that the respondent had chosen not to apply to amend the statement of claim. 48 After hearing these submissions her Honour Magistrate Hamilton continued to deliver her extempore reasons. At page 86 of the appeal book (page 14 of the transcript) her Honour referred to the grounds of the appeal in the District Court and also the application made by counsel for the appellant and the submissions for her. She repeated that she did not have jurisdiction to review the decision of another magistrate, pointing out that it was open to the appellant to seek an order in the District Court that may give him the right to have the original default judgment suspended pursuant to s 15(1)(b) of the Civil Judgments Enforcement Act 2004. In the end her Honour dismissed the appellant's application and ordered that he pay the costs of the application before her Honour to be taxed if not agreed. 49 At the commencement of his submissions in the hearing of these appeals counsel for the respondent submitted that there were threshold questions as to jurisdiction which had not been addressed in the submissions made on behalf of the appellant. He argued that it was necessary to deal with the appeal BUS 1 of 2012 first on the basis that one would not arrive at a position of even considering the second appeal unless the first appeal succeeded. As a matter of logic it seems to me that there is merit in that submission. 50 The respondent raised no jurisdictional issue in relation to the first appeal, accepting that there is a right of appeal from the decision of the Magistrates Court to the District Court pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act and it was not suggested that the first appeal was a minor case. However, counsel for the respondent submitted that there was no application which showed any, let alone any exceptional circumstances that would allow the consideration of materials that were not before the relevant magistrates at all material times. Nonetheless in counsel's submission in respect of the first appeal one starts at a point after default judgment was entered against the appellant on 24 November 2011. As a consequence it was put that to now argue about the basis upon which the default judgment was entered or the adequacy of the pleadings was superfluous. Counsel submitted that failure by the appellant to meet the conditions for setting aside the default judgment by 4.00 pm on 25 July 2012 meant that the judgment against the appellant which had previously been entered stood. It was therefore a final judgment and the cause of action had merged in a final judgment. As a result it was not then open to the appellant to attack the pleadings in the case. This meant that what occurred prior to 27 July 2012 fell away. 51 The judgment was regularly entered against the appellant who then sought to have it set aside. When that application came on for hearing before her Honour Magistrate Pontifex on 27 June 2012 counsel for the respondent submitted that the issue did not concern the pleadings or their adequacy or any limitation periods. Rather, it was an application by the appellant to set aside the default judgment and he was successful in that subject to certain conditions set by the learned magistrate. 52 Her Honour Magistrate Pontifex heard full submissions as to the application before her and when the proposed condition of payment of monies into court was discussed counsel for the appellant, being aware of the amount that was proposed to be ordered be paid into court, in no way indicated to her Honour that failure by the appellant to satisfy the condition would result in the default judgment entered against him remaining in force and the judgment debt being immediately enforceable. On a strict interpretation in my view it cannot be said that the learned magistrate erred in law by making the setting aside of the default judgment conditional upon payment of $41,951.34 into court by the date in question because it is clear from the authorities that the court has power to set aside a default judgment on conditions which include an order that security be given in some form including payment of a sum of money into court: Carrier Air Conditioning Pty Ltd v Thommesen & Ors [2005] WADC 195 [11], [60]; Commonwealth Bank of Australia v Cann [2012] WADC 115. A submission or argument that an order by a magistrate eg, payment of a sum of money into court as a condition in setting aside a default judgment effectively prevents an appellant from defending an action is not of itself persuasive in this case: Batiste v Gilmar-Latham [2001] NSWCA 392. 53 Further, pursuant to s 19(3) of the Magistrates Court (Civil Proceedings) Act a magistrate in exercising a discretion may set aside a judgment on a condition as to payment of costs. It is not suggested that the exercise of the magistrate's discretion in imposing conditions relevant to the setting aside of the default judgment was so unreasonable that in itself it amounted to an error of law. 54 Grounds 2 and 3 of appeal BUS 1 of 2012 essentially can be read together as they raise the same issue and attract the same objection on the part of the appellant. 55 When her Honour Magistrate Pontifex heard the application and made the orders setting aside the default judgment on 27 June 2012 she was well aware of issues such as the limitation argument and the argument concerning when the cause of action accrued and from what time it ran. In making the orders she did the learned magistrate extended the benefit of these proposed arguments to the appellant, noting correctly in my view, that it was not appropriate for her to deal with those issues on the affidavit material before her or in the course of the application which she was hearing on 27 June. In setting aside the default judgment entered against the appellant her Honour Magistrate Pontifex was acceding to the appellant's application that he be given the opportunity to fully argue and ventilate these issues at trial in the Magistrates Court consequent upon the appellant complying with the orders attaching to the conditional leave to defend the action, which the appellant ultimately chose not to pursue. 56 The thrust of grounds 2 and 3 of the first appeal seem to suggest that because of the existence of the limitation argument or issue then the respondent's entire claim should have been dismissed because it was unlawful and defective. It was certainly not possible in my view for her Honour Magistrate Pontifex to determine the merits of such an argument in the application before her giving rise as it did to some complex issues which could only properly and fairly be determined in the course of a trial. In any event, I accept the submission made on behalf of the respondent that of itself a breach of s 13 of the Limitation Act does not render a claim unlawful or defective rather it is a procedural defence available to a defendant to plead if the defendant so wishes: Re Monger; Ex parte Cross [2004] WASCA 176. 57 Ground 5 of appeal BUS 1 of 2012 complains that the learned magistrate erred in law and in fact in ordering the appellant to pay the respondent's costs of the application to have the default judgment set aside in circumstances where part of the respondent's claim included an amount which was statute barred as well as interest on the statute barred part of the claim and this was known to the respondent. In the course of the proceedings before her Honour Magistrate Pontifex on 27 June at page 105 of the respondent's appeal book (page 8 of the transcript of the proceedings) counsel for the respondent indicated that he would be seeking an order that the costs of the application and perhaps some of the wasted costs of execution proceedings be met by the appellant. A little later at page 106 of the respondent's appeal book (page 9 of the transcript) counsel for the appellant repeated an argument he had previously made to the court asserting that the statement of claim was defective and why that was so, submitting that the respondent did not choose to amend their claim. He further asserted that the respondent was seeking the maximum amount of monies they could possibly claim, including monies the subject of the limitation period with interest. Counsel reiterated that if the default judgment was set aside there would be no prejudice to the respondent which was claiming an excessive amount in any event and then said in those circumstances in his submission it was not appropriate, if the application was granted, that the appellant should have to meet the costs of the application, rather they should be in the cause. A little later when her Honour Magistrate Pontifex was delivering her extempore reasons at pages 110 – 111 of the respondent's appeal book (pages 13 and 14 of the transcript) and making orders she said as to order 4 that the appellant was to pay the costs of the application including the appearance of 15 May 2012, to be taxed if not agreed. The explanation given by her Honour for making that order was that there was no reason why costs should not follow the event. Her Honour further noted that to date the appellant had not cured his default. 58 I accept the submission made on behalf of the respondent in relation to ground 5 of the first appeal that this is a situation where the appellant was in fact seeking the indulgence of the court in asking that the default judgment be set aside because the appellant had failed to comply with previous orders of the court. It is the general rule that in those circumstances the party making the application, particularly for the reasons which applied in this case, should pay the costs of the application and costs thrown away: Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146. It seems to me that rather than pointing to any error of fact or law made by the learned magistrate in relation to this ground, the appellant is simply complaining that in his opinion the order was unfair. That is not sufficient to establish ground 5. 59 For the reasons expressed in relation to grounds 1, 2, 3, 4 and 5 with respect to appeal BUS 1 of 2012, I am not persuaded that any of those grounds have been made out and that appeal is dismissed. 60 It is however necessary in my view to make mention of another matter relevant to the first appeal. At the hearing of this matter in the District Court on 24 January 2013 towards the conclusion of the proceedings (ts 102 – 105) the court granted the appellant the limited right, consequent upon conferring with the respondent, to put before the court relevant to these appeals any evidentiary materials that were before her Honour Magistrate Pontifex in relation to the issue of the appellant's finances and his alleged impecuniosity. It was made very clear to counsel for the appellant that if such material existed as alleged, it had to be material that was formally before her Honour at that hearing and not simply part of the court file. By inference of course it could not be material that was produced on a 'without prejudice' basis at the hearing on 27 June 2012. 61 At page 95 of the transcript of this hearing, counsel for the appellant in relation to her Honour Magistrate Pontifex making an order that money be paid into court, indicated that he found that order to be something of a surprise explaining at page 94 of the transcript that considering her Honour's judgment in the transcript and the matters that preceded it, the fact that her Honour was minded to impose such a condition was not flagged in any way. That understanding on counsel's part however is not entirely accurate as can be seen by reference to that portion of the exchange between her Honour and counsel where she raised the possibility of making an order that a sum of money be paid into court as a condition of granting the leave which has previously been referred to in these reasons. Counsel for the appellant went on to explain to this court that to his knowledge at that point her Honour would have had the court file before her and all the information on the file in relation to the matter, so she would have known of the correspondence referring to the likely insolvency and financial circumstances of the appellant. This court pointed out that in large part it would appear that her Honour did take those matters into account because she did not order the whole amount of the judgment to be paid into court and reduced the amount ordered to be paid into court relatively considerably. In addition she was prevented from taking into account any material before her as to the appellant's financial situation that was provided on a 'without prejudice' basis. 62 Counsel for the appellant suggested that on the evidence he believed that was before her Honour Magistrate Pontifex, it would have been apparent that it was very unlikely that the appellant would be able to comply with that particular condition. Counsel was asked if he could direct this court to that particular material and he was unable to do so at the time but indicated that he would pursue the matter and that is when this court indicated that if this was to occur and materials were to be located then a copy would need to be sent to the respondent's instructing solicitors. Counsel for the appellant was further advised by this court that if such material existed and the matter needed to come back before this court then that could occur. As an aside this court made the observation that notwithstanding the materials in relation to this matter had not been perused and studied at great length by it nonetheless it did not appear from the transcript of the proceedings before her Honour Magistrate Pontifex that there had been any real and appreciable airing of this particular concern on behalf of the appellant. Counsel for the appellant replied that there was not, in the sense that this had not occurred. He further explained that he believed at the time that it was not appropriate for him to challenge her Honour when she was giving her reasons for judgment on that issue, but in fairness I do not take the view that her Honour would have interpreted the raising of such a concern as a challenge to her authority or inappropriate behaviour on the part of counsel for the appellant. 63 It was in the light of this particular exchange at the hearing of these appeals that the opportunity to locate that evidentiary material and put it before this court was extended to the appellant. That was to occur, if the appellant's counsel wished to pursue the issue, on or before 31 January 2013 and the respondent was directed to file any submissions in reply on or before 8 February 2013. As I understand it, there has been no attempt to confer on behalf of the appellant with the legal advisors of the respondent regarding the existence of any such evidentiary material and no such material has been put before this court, nor has this court been referred to such material. 64 The appellant did, however, file a further list of legislation and authorities in relation to the issue of principles governing summary judgment and those regarding a default judgment being entered where it is said that the judgment had been obtained irregularly or entered irregularly. These matters were not matters under contemplation when the appellant was granted the limited right to present the material in question before this court. In addition in those submissions the appellant's legal advisors return once more to the issue of whether it was possible for the appellant to comply with the order directing him to pay the amount of money in question into court as a condition of having the default judgment set aside. Again that was not the purpose of the limited right extended to the appellant. This is not a case where either party was granted leave to file additional submissions at large at the conclusion of the hearing of the appeals and the right or leave that was extended to the appellant was not granted on that basis: Bale v Mills [2011] NSWCA 226; M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110. 65 Notwithstanding the above observations mention should be made of the fact that some of the assertions contained in the further list of materials filed on behalf of the appellant are difficult to understand. In par 11(iv) reference is made to the affidavit of Steven Andrew Forward sworn 25 July 2012. It is said that in that affidavit there is reference to the appellant facing bankruptcy and a further reference that on 26 March 2012 the appellant had lodged a declaration of intention to file a personal insolvency agreement. This does not appear from that affidavit as it is reproduced at pages 119 – 120 of the respondent's appeal book nor is the material reflected in a document found at pages 55 and 56 of the appellant's appeal book 2 to which reference is made in par 11(iv). In par 11(v) of the further submissions filed on behalf of the appellant there is a submission that there was further evidence before her Honour Magistrate Pontifex as to the appellant's financial circumstances as set out in a letter dated 23 March 2012 annexed to the appellant's affidavit sworn 20 April 2012. Reference has already been made in these reasons to the 'without prejudice' correspondence which was objected to at that hearing by counsel for the respondent and the fact that no issue was taken to that objection by counsel for the appellant. Paragraph 11(vi) of those further submissions refers to an offer of settlement made by the appellant to the respondent in March 2008 on a 'without prejudice' basis. That also was objected to and did not form part of the evidence before her Honour. In any event I accept the comment in the submissions in reply filed on behalf of the respondent that a mere assertion, in the absence of proof, that the appellant did not have $75,000 could not and does not lead to a conclusion that he therefore could not find significantly less a sum of money within the 30 day period. 66 I further accept the submission made on behalf of the respondent that the limited leave granted by this court relevant to locating that material as to the appellant's financial circumstances that was said to be before her Honour Magistrate Pontifex on 27 June 2012 has not been properly exercised by the appellant and it does not extend to the further materials which have been filed on behalf of the appellant. Even if it were the case that leave had been granted to file submissions of the nature in question, those filed on behalf of the appellant do not advance any of the matters in issue nor do they clarify any of those matters. They do not result in any change to the comments or the findings relevant to the grounds of appeal in BUS 1 of 2012.
Appeal BUS 2 of 2012 67 It seems to me as observed earlier in these reasons that by virtue of the dismissal of appeal BUS 1 of 2012 then this second appeal must fall away. However, it is also the case that during the hearing of these appeals counsel did address the issue of the second appeal and made submissions in relation to it. For that reason it is appropriate to refer to the arguments in any event. 68 The history of appeal BUS 2 of 2012 and the proceedings before her Honour Magistrate Hamilton who dismissed that appeal on 29 August 2012 have been canvassed in some detail in the earlier part of these reasons.
69 In my view after 4.00 pm of 25 July 2012 the status quo in relation to the judgment entered against the appellant remained and the judgment stood so there was no longer any jurisdiction in the Magistrates Court to entertain any further interlocutory applications with respect to the matter. Certainly, by that time the appellant had filed an appeal in the District Court against the decision of her Honour Magistrate Pontifex and that was the appropriate response as the remedy lay in an appeal to the District Court. However, the appellant attempted to have the decision of her Honour Magistrate Pontifex reviewed by another magistrate and clearly there was no jurisdiction to do so which is precisely what her Honour Magistrate Hamilton said. She was also correct in my view in ruling that she had no jurisdiction to entertain an application to strike out the statement of claim or make any orders that it be amended by the respondent and it is this finding or ruling that is the substance of the appeal BUS 2 of 2012. She pointed out it was far too late to do this as the judgment against the appellant had been entered and regularly entered and therefore the matter was at an end. 70 In the first ground of appeal relevant to BUS 2 of 2012 it is asserted on behalf of the appellant that the learned magistrate erred in law by refusing to consider the appellant's application on its merits or at all. Such a claim cannot be substantiated when one reads the transcript of the proceedings before her Honour Magistrate Hamilton which are to be found in the respondent's appeal book at pages 129 – 141. There is nothing in the exchanges between her Honour and the appellant's counsel or indeed counsel for the respondent that in any way indicates that her Honour had pre-judged the matters before her or did not have an open mind. In the end it is the case that on her understanding and interpretation of the relevant law the learned magistrate found favour with the submissions made on behalf of the respondent and dismissed that part of the application that counsel for the appellant stressed was the focus of the argument and for the sake of completeness she made it abundantly clear that she was not sitting as an appeal court on the decision made by a fellow magistrate because there was no jurisdiction in the Magistrates Court to do so. 71 In submissions contained in the respondent's appeal book at pages 124 - 126 to which counsel for the respondent made reference, counsel addressed the issue whether s 20 of the Civil Judgments Enforcement Act 2004 (WA) permits a magistrate to review the decision of another magistrate. That section says that a court can make an enforcement order in respect of a monetary judgment on the application of the judgment creditor or a person given leave under s 13(1)(d) of that legislation. Section 20(2) of the legislation says that a court that makes an enforcement order, or any other order, under this Part may do so on terms as to costs or otherwise. Section 20(3) of the legislation says that after making an enforcement order, or any other order, under this Part the court may make any necessary ancillary or consequential order and may do so on terms as to costs or otherwise. 72 Section 17 of the legislation defines what constitutes an enforcement order in the following terms: (a) a time for payment order made under section 32; or (b) an instalment order made under section 33; or (c) an earnings appropriation order made under section 35; or (d) a debt appropriation order made under section 49; or (e) a property (seizure and sale) order made under section 59; or (f) an order made under section 86. 73 It can be seen that s 20 does not give the court jurisdiction to set aside its own decisions which have been entered and sealed and this jurisdiction is not to be found in any other sections of pt 4 of the legislation. Section 17 of the legislation does not define what constitutes setting aside a judgment but certainly setting aside a judgment order is not, I accept, 'any necessary ancillary or consequential order' pursuant to s 20(3) because in this case the appellant had already instituted an appeal in the case to the District Court. 74 In my view her Honour Magistrate Hamilton was quite correct in stating as she did relevant to that part of the application made on behalf of the appellant requesting that the statement of claim be struck out (or it seems the respondent be directed to amend the statement of claim if the strike out application failed) because the matter was res judicata as at 4.00 pm on 25 July 2012 when in failing to adhere to the conditions attaching to the setting aside of the default judgment, that judgment which in her Honour Magistrate Hamilton's opinion had been regularly entered then stood against the appellant. I accept the submission made on behalf of counsel for the respondent that the doctrine of merger reflects the principle that once there is a final judgment in relation to a matter in a particular jurisdiction, in this case the Magistrates Court, that particular cause of action comes to an end in that jurisdiction. This it seems to me is exactly what her Honour Magistrate Hamilton determined on 29 August 2012. 75 I do not accept that the appellant was denied procedural fairness in the application which came on before her Honour Magistrate Hamilton as she did hear some argument from counsel. In any event even if her Honour had not done so this would not be fatal because in practical terms there was no point in this occurring given that the Magistrates Court had no jurisdiction to deal with the application before it as the judgment had merged and if there was to be an avenue of redress it lay elsewhere. 76 In ground 2 of appeal BUS 2 of 2012 the appellant alleges that the learned magistrate erred in law by making a finding that the appellant was seeking a review by her Honour of a decision which had previously been made by a different magistrate on 27 June 2012, setting aside a default judgment which had been entered against the appellant on 24 November 2011. It is correct that counsel for the appellant in the end told her Honour Magistrate Hamilton that the focus of his application was to obtain an order that the respondent's statement of claim be struck out, however her Honour's observation even if it constituted a finding, that she had no power to review the decision of her Honour Magistrate Pontifex of 27 June 2012 was inescapable because that is the law. In this regard counsel for the respondent made reference to Re Michelides; Ex parte Chin [2008] WASC 256 [128] – [129]. It is unnecessary for the purpose of these reasons to review the circumstances of that case in detail, but again I accept the submissions made on behalf of the respondent that those two paragraphs in the judgment are similar to the position of her Honour Magistrate Hamilton in hearing the matter giving rise to the second appeal found herself in when she was confronted with the issues relating to what had occurred before her Honour Magistrate Pontifex. In the particular case cited above the parties had entered a settlement deed which apparently effected a compromise of the dispute between them. As part of that process the necessary completed forms had been submitted to the court justifying the entry of a consent judgment by the registrar. On appeal, Hasluck J said that the step taken by the registrar was a judicial act and one that could be regarded as giving rise to a perfected order for judgment and would have the result that the initial proceedings in the matter had been finalised or brought to a state of finality. Hasluck J determined that in those circumstances a review of the process could not occur in the court where the consent judgment had been entered but that did not prevent the applicant challenging the judgment obtained in the proceedings by appealing against the decision of the registrar to enter judgment which was a judicial decision. The appeal of course would lie to another court and not the Magistrates Court. |