Application for leave to appeal from a decision in the Magistrates Court - Appeal commenced out of time - Principles applicable to grant of extension of time within which to appeal - Reasons for failure to file appeal within time include that the appellant is self-represented - Principles relating to self-represented litigant - Prospects of success of appeal - Prejudice to respondent

Magistrates Court (Civil Proceedings) Act 2004 s 40

Application for extension of time to appeal refused

ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557

Australian Competition and Consumer Commission v 4WD Systems Pty Ltd [2003] FCA 850; (2003) 200 ALR 491

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447

Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Concrete Constructions Group Ltd v Litevale Pty Ltd [2002] NSWSC 670; (2002) 170 FLR 290

du Boulay v Worrell [2009] QCA 63

Hall v Hall [2007] WASC 198

Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129

Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65

Parker v Transfield Pty Ltd [2000] WASCA 382

Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, BC8601930, 16 June 1986

Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128

Sellars v Adelaide Petroleum Pty Ltd (1994) 179 CLR 322

Simonsen v Legge [2010] WASCA 238

Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537

Tobin v Dodd [2004] WASCA 288

Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389

Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

1 DAVIS DCJ: On 9 September 2013, the appellant, Mr Lance, filed an appeal against a decision of Magistrate Scadden made on 28 March 2013 where she dismissed Mr Lance's application to set aside default judgment entered against him.

2 The appeal was brought almost five months out of time. It should have been brought within 21 days: see s 40(3) of the Magistrates Court Civil Proceedings Act 2004 (MCCPA).

3 Leave to bring this appeal out of time is therefore required pursuant to s 40(3) of the MCCPA, and Mr Lance has sought an extension of time within which to appeal. This application and the appeal were heard together. For convenience when I refer to the hearing of both of these matters I will refer to them as the 'appeal' hearing.

4 At the appeal hearing, Mr Lance was self-represented.

5 The respondent did not appear, but filed a notice indicating that she did not intend to take part in the appeal and will accept any order made by the court in the appeal other than as to costs.

6 For the reasons which follow, I consider that the application for an extension of time within which to appeal should be refused and the appeal dismissed.

7 The following facts are taken from the Magistrate's Court file produced for the purpose of the appeal hearing.

8 Mr Lance was in fact the claimant in the Magistrate's Court. He filed a General Procedure Claim on 22 December 2011.

9 His claim against the respondent was for 'damages to face from mistreatment by skin clinic over 16 month period. Skin needling was conducted by defendant who recommended 3 to 4 treatments to fix some scarring.' Mr Lance had seven treatments which commenced in January 2010 and ceased in May 2011. He claimed that his scarring had worsened as a result of the treatments and that he 'needs to seek further treatment to fix the worsened scarring'.

10 The respondent filed a Response to A General Procedure Claim on 16 January 2012 giving notice that she intended to defend the full amount of the claim.

11 A pre-trial conference was arranged for 12 March 2012. Both parties attended that pre-trial conference before Registrar Loh. At that pre-trial conference it was ordered that:

1. the claimant shall lodge and serve a Form 19 Statement of General Procedure Claim (statement of claim) within 14 days;
2. the defendant shall lodge and serve a Form 21 Statement of Defence to General Procedure Claim within 14 days of service of Statement of General Procedure Claim;
3. the parties to provide additional information by disclosing documents relevant to the case and lodge and serve an affidavit containing a list of documents by 23 April 2012;
4. the pre-trial conference to be adjourned to 14 May 2012 at 9.30am.

12 Mr Lance did not file the statement of claim within 14 days as ordered and did not attend the adjourned pre-trial conference date on 14 May 2012. The respondent did attend the pre-trial conference.

13 On 14 May 2012 the registrar adjourned the pre-trial conference to 24 May 2012 and made an order that 'in the event of non-attendance by the claimant at the adjourned pre-trial conference there be judgment for the defendant pursuant to Rule 41(4) of the Magistrate Court (Civil Proceedings) Rules 2005' (Rules).

(1) Unless a registrar or the Court orders otherwise, a party must attend a pre-trial conference.

(4) If party fails to attend a pre-trial conference, the registrar at the pre-trial conference may give default judgment against the party, and in that case Part 5, except rule 24, with any necessary modifications, applies in relation to the default judgment.

15 Both a copy of the orders as made on 14 May 2012 and notice of the adjourned pre-trial conference were posted to the parties on 14 May 2012.

16 At the adjourned pre-trial conference the respondent attended but there was no appearance by Mr Lance.

17 The default judgment was entered on 24 May 2012 by reason of Mr Lance's failure to attend the pre-trial conference. An order was also made that Mr Lance pay the respondent's costs to be taxed if not agreed.

18 Mr Lance attended the appointment for taxation of the respondent's costs on 27 September 2012. In November 2012 the respondent then filed and served a means inquiry in relation to recovery of her taxed costs from Mr Lance. The means inquiry had been listed for hearing on 25 January 2013.

19 Mr Lance did not bring an application to set aside the default judgment until 22 January 2013.

20 In support of his application to set aside the default judgment Mr Lance filed an affidavit sworn 22 January 2013 in which he stated:

The claimant (myself) will need further treatment to correct the work done on my face by Elisabeth Hoderdyk.

The defendant acted fraudulently and decieved [sic] me in the case of treatment for her own personal amusement.

I am now left with a worse situation than I started with due to the defendant's unfair and unconscionable conduct. Having myself ordered to pay costs on top of my time and expenses is not fair or reasonable.

I was induced into the agreement by fraud and misrepresentation.

I did not attend the second pre-trial conference because the defendant had made one request and one only (formally). That was to have the case dismissed.

Due to the defendant's lawyer and the registrar speaking to each other privately before the trial I did not receive [sic] a fair hearing.

21 Mr Lance's application was listed initially for hearing on 15 February 2013. The means inquiry applied for by the respondent, which had originally been listed for hearing on 25 January 2013, was also adjourned to 15 February 2013.

22 At the hearing on 15 February 2013, which both parties attended, the following orders were made:

1. Claimant to serve defendant with application and affidavit sworn 22 January 2013 within 14 days of the date of this order.
2. Claimant to lodge and serve further affidavit in support of the application deposing to the merits and evidence of his claim and explaining the delay in applying to set aside the Default Judgment within 14 days of the date of this order.
3. Time for the defendant to lodge and serve her response and any supporting affidavit extended for 14 days from the date of the claimant complying with orders 1 and 2 hereof.
4. The application lodged 22 January 2013 adjourned to Special Appointment for 1 hour on 22 March 2013 at 12 noon.
5. Costs of today reserved.

23 There is transcript available for the hearing of 15 February 2013, which I have read. Before making those orders the magistrate at that hearing, Magistrate Cockram, clearly explained (ts 5) that the reason he was ordering the filing of further affidavits was that the affidavit in support of the application needed to address a number of issues and had to set out some evidence to show the basis of Mr Lance's claim, rather than the conclusions set out in his affidavit of 22 January 2013. The magistrate also specifically explained that the affidavit needed to explain the delay in bringing the application to set aside the default judgment.

24 Mr Lance then filed two affidavits, one on 6 March 2013 and another slightly amended version of the same affidavit on 22 March 2013.

25 In that affidavit Mr Lance set out the discussions he had with the respondent before treatment commenced and the steps he took between treatments to stay out of the sun. Mr Lance deposed to the fact that he asked the respondent about the lack of results after the sixth treatment and what he could do, to which the respondent replied 'more treatments'. Mr Lance also set out what happened in October 2011 when he confronted the respondent 'over the treatment which had worsened the scarring on his face'. The exchange which Mr Lance had with the respondent is set out in his affidavit (par 12):

In October 2011 the claimant went to Skin Revision in the Hay Street Mall Perth and confronted the defendant over the treatment which had worsened the scarring on his face after 14 months of treatment. The claimant said 'you have wordened [sic] the scarring on my face'. To which the defendant said 'there is nothing wrong with your face, go and look in the mirror.' The claimant did so and then said 'don't give me that, I want my money refunded.' The defendant looked at the claimant laughed and said 'you're a joke.' The claimant stood looking at the defendant who then changed her tune, moved behind the counter and said 'your [sic] threatening me.' The claimant said 'I'm not threatening anyone. Give me my money back.' The defendant said 'I'm calling the Police.' The defendant got on the phone and called security. Security arrived a short time later. The defendant said 'this guy won't leave my shop.' Security asked the claimant to step outside to discuss the situation. The claimant did so, then left.

26 In relation to his claim, Mr Lance deposed in par 16 to 21 of his affidavit:

In hindsight tha [sic] claimant has realised that the sum of $60,000 for this matter is likely a little excessive. However according to his calculations the defendant had cost him 14 months of restructured living and time out from proper employment. Time which should have netted the claimant $60,000 from employment as he is a qualified logistice [sic] professional. The claimant was also of the understanding that the court normally looks to reimburse the affected party from half the amount that is asked for which would be roughly correct given the circumstances. The claimant was of this understanding from previous dealings with the consumer commission.

When the claimant arrived for the first pre-trial hearing the defence entered the court room and asked the Registrar to apply certain conditions on the claimant's case before the conferenece [sic] began without the claimant being present. The Registrar complied with the defence's request. The claimant feels that this has unfairly affected his claim.

As a result of the skin needling performed on the claimant by the defendant he now has worse scarring than he began with and is in need of further treatment by another professional to correct it.

The worsened scarring will contribute to negative first impressions at further employment opportunities and social situations causing the claimant further losses.

The claimant feels that given the circumstance it is extremely unfair and unreasonable for him to be expected to pay the costs in this matter and is applying to the court to set aside default judgment.

The claimant is currently unemployed and has been for the last 14 months, has little money and no income apart from Centrelink benefits.

27 In relation to the delay, Mr Lance's affidavit set out as follows:

1. The claimant was busy trying to complete a training course.
2. The claimant has two other matters to attend to at the courts at present.
3. The claimant has not received any further contact from the defence to bring the matter to his attention.
4. The claimant has received no correspondence from the court in relation to his PO Box application being accepted.
5. Legal Profession Act 2008. There are no time constituents [sic] on applying to set aside costs.

28 An answering affidavit and submissions, including objections to Mr Lance's affidavit, were filed by the solicitors acting for the respondent on 19 March 2013. It is apparent from the affidavit filed on behalf of the respondent that, contrary to Mr Lance's claim that he had not received any further contact from the defence 'to bring the matter to his attention', he had received correspondence from the respondent's solicitors concerning the respondent's bill of costs by letters dated 12 July 2012 and 10 August 2012 (sent to Mr Lance at his PO Box address). That correspondence also confirmed telephone conversations between the solicitors and Mr Lance which had taken place on 4 July 2012 and 8 August 2012. Of course, Mr Lance had attended the taxation of the respondent's bill of costs on 27 September 2012. On 6 December 2012 the respondent's solicitors wrote again to Mr Lance enclosing copies of the application for the means inquiry and advising of the hearing date for the means inquiry. That letter of 6 December 2012 also referred to an earlier letter to Mr Lance of 11 October 2012.

29 Mr Lance's application to set aside the default judgment was heard by Magistrate Scadden on 22 March 2013 and the application was adjourned for decision on 28 March 2013.

30 Unfortunately there is no transcript available for either hearing on 22 or 28 March 2013 and I do not have the magistrate's reasons for decision.

1. Claimant's application to set aside default judgment is refused.
2. Claimant is to pay the defendant's costs of the application to be taxed, if not agreed.

32 Following the order for Mr Lance to pay the respondent's costs, the respondent filed a bill of costs. Mr Lance attended the taxation appointment on 18 June 2013.

33 On 12 July 2013, Mr Lance filed an appeal from Magistrate Scadden's decision, but he did so in the Magistrates Court instead of this court. That appeal was heard on 16 August 2013 and dismissed. Mr Lance then brought his appeal in this court on 9 September 2013.

Principles on an application for extension of time within which to appeal

34 The Court of Appeal in Simonsen v Legge [2010] WASCA 238 [8] set out the relevant matters to consider when a party's appeal is out of time and that party seeks to extend the time for filing a notice of appeal, as follows:

(a) on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;

(b) the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);

(c) nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);

(d) there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:

(iii) the prospects of the applicant succeeding in the appeal; and

(iv) the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198; In de Braekt v Powell [2007] WASCA 55 [11]; [2007] WASCA 55; (2007) 33 WAR 389;

(e) other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];

(f) the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;

(g) in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and

(h) similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].

35 The principles in Simonsen v Legge have been applied in this court in relation to s 40(3) of the MCCPA in Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128 (Herron DCJ). I agree that it is appropriate to apply those principles.

36 The time by which an appeal against Magistrate Scadden's decision of 28 March 2013 was due to be filed was, as I have mentioned, within 21 days.

37 On my calculation, an appeal should have been filed by Mr Lance on or before 18 April 2013. The delay is therefore almost five months.

38 To explain the delay Mr Lance has relied on the fact that he is self-represented and is ignorant of the court rules and time limits.

39 In his affidavit of 10 September 2013 filed in this appeal in support of his application for an extension of time to appeal (par 2) Mr Lance stated:

The appellant is self-represented and was therefore unaware of some of the necessary court processes in his prior application to appeal in the Magistrates Court.

40 In a further affidavit of 14 November 2013 which he was ordered to file in further support of his application for an extension of time Mr Lance stated:

The appellant is self-represented and has appealed to the wrong court as a result of information provided by Registrar Loh on the 18th June 2013 where he stated 'that if the appellant didn't like his decision he could appeal it to a Magistrate'.

41 The date 18 June 2013 was, of course, the date when the respondent's bill of costs was being taxed.

42 Mr Lance did in fact file an appeal in the Magistrates Court on 12 July 2013. That appeal was heard on 16 August 2013 and dismissed. Mr Lance has deposed to the fact that he was informed by the magistrate on 16 August 2013 that the correct method was to appeal the earlier decision of Magistrate Scadden to the District Court.

43 Mr Lance has deposed that he followed court processes to appeal based on 'incorrect information'. In his affidavit he has further deposed that he had 'not remained idle and has followed court procedure albeit acted on poor advice provided by a member of the junior court'.

44 The difficulty with Mr Lance's explanation is that, even if I accept that he was advised on 18 June 2013 to file an appeal in the magistrate's court, and thus he mistakenly brought his appeal in the magistrate's court on that advice, by 18 June 2013 the time for appealing had already expired.

45 Mr Lance has not explained the delay of two months between the time by which an appeal against Magistrate Scadden's decision of 28 March 2013 was due to be filed - 18 April 2013 - and the time when he says that he received the 'incorrect information' on 18 June 2013.

46 In the hearing before me Mr Lance advised that he was aware that the respondent was proceeding to tax her costs following the orders made on 28 March 2013. Once again, Mr Lance relied upon his alleged ignorance of court procedures and time limits for the filing of an appeal, stating (ts 3):

I didn't appeal Magistrate Scaddan's decision because I felt that - well, it was my understanding as I'm just a layperson representing - self-represented, that it was my opportunity to argue against those costings at that time.

47 The general principles relating to an unrepresented litigant are set out in Tobin v Dodd [2004] WASCA 288 [13] - [18]. In the discussion by EM Heenan J [14], he adopted what the Full Court of the Federal Court of Australia had said in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129 [28]. In that case and many other cases, the following statement by Samuels J in Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, BC8601930, 16 June 1986) has been referred to with approval:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

48 In du Boulay v Worrell [2009] QCA 63 [69], Muir JA (with whom Fraser JA agreed) said:

It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.

49 Given the background as I have set out, at the time of the magistrate's decision on 28 March 2013, Mr Lance was aware that there were court processes and time limits with which he had to comply. Specifically, in relation to his application to set aside the default judgment he was required to explain the delay in making that application and was ordered to file a further affidavit to do so.

50 If he was dissatisfied with Magistrate Scadden's decision, it was up to Mr Lance to find out the court processes and time limits which applied to bringing an appeal from that decision, and to follow those to bring his appeal. Mr Lance was under no special difficulty, nor was he in any different position from any other litigant who must comply with time limits for the bringing of an appeal.

51 The time limits in the MCCPA for bringing an appeal to this court cannot be avoided by Mr Lance relying on the fact that he is not legally represented, or upon advice said to have been given to him by the registrar on 18 June 2013, which was, of course, well after the time for appealing had already expired.

52 After the advice from the registrar upon which Mr Lance has said that he relied, no appeal was filed until 12 July 2013, almost another month.

53 When I asked why he did not appeal between 28 March 2013 and 12 July 2013 Mr Lance stated (ts 3).

Because I was acting on the - I was under the impression that it was my option, my legal right to argue against costings on 18 June. As I appealed already, I wasn't at the time competent in my understanding of what was to be done next or what my rights were. I was a little bit flabbergasted, to put it into simple English, at the decision of Magistrate Scaddan who presented a certain level of attitude towards my application. I admit to a level of incompetence in this matter.

I wasn't aware. That's why I admit to a level of incompetence at the time, both - initially in some of the processes that I should have taken, allowing a couple of months to pass while I let - while I allow court allocation dates to be made instead of making further inquiries. But at the time I'd already taken a further step. I'd already made an appeal. I wasn't aware that it's a rolling process. I was under the idea that I should be arguing some of my points, or putting my case forward to [the respondent's] taxation, which is often the case.

55 In my view Mr Lance's explanations are inadequate. In the particular circumstances of this case, including the background and history of the claim in the Magistrates Court and Mr Lance's own conduct, to allow an extension of time based on the fact that Mr Lance is self-represented would give him a privileged status which, in my view, would be quite unfair to the respondent.

56 Another explanation for the delay is given in Mr Lance's affidavit of 14 November 2013 par 8 - 10:

Fresh evidence became aware to the appellant on the 9th July 2013 that is pertinent to the case. Error of fact. The appellant admits to a level of incompetence regarding this error of fact and his process to appeal.

The evidence was imperfectly understood until the 9th July 2013.

Ignorance of this evidence does not amount to an error of law and fact and the current state of proceedings is plainly unjust.

57 There is no explanation in his affidavit as to what is the 'fresh evidence'. The explanation he gave during the appeal hearing was that on 9 July 2013 he noticed what he described as a 'K' shaped scar on his right upper cheek (which 'bounced out' at him in the mirror ts 4). He also mentioned that he had a 'V' shaped scar on his upper left cheek.

58 The discovery of the 'K' scar on 9 July 2013 was more than two years after Mr Lance's last treatment from the respondent in May 2011.

59 Mr Lance acknowledged in his affidavit and before me that there was some fault on his part (which he described as incompetence) in only noticing the 'K' scar in July 2013 (ts 4). Given this admission I am not sure whether the evidence of the 'K' and 'V' scars can be said to be 'fresh evidence', as opposed to evidence which should or could, with reasonable diligence, have been discoverable at an earlier stage and before the application heard by Magistrate Scadden.

60 Mr Lance gave a further explanation to me that before seeing the 'K' scar he just thought the treatment provided by the respondent had not worked; on 9 July 2013 he realised that his scarring was in excess of what he had before. I am not able to accept that explanation given that from the outset, in his description of his claim in the General Procedure Claim form in November 2011, Mr Lance had claimed that the respondent's treatment had produced 'worsened scarring'.

61 Even if I accept that there was the discovery of the 'K' scar in July 2013 and that this does constitute 'fresh evidence' this does not, in my view, explain all of the delay in bringing the appeal from the magistrate's decision. This is not only because the claim by Mr Lance has, since, November 2011, always been a claim for worsened scarring. It is also because, according to his sworn evidence in this court, he had been relying since 18 June 2013 (some weeks before the discovery of the 'K' scar) on advice from the registrar concerning to whom he should appeal. In other words, according to his sworn evidence he was contemplating an appeal before his discovery of the 'K' scar.

62 I find that Mr Lance has not adequately explained the delay in bringing this appeal, in particular the initial delay between 18 April 2013 and the filing of his appeal in the magistrate's court on 12 July 2013.

The prospects of the appellant succeeding in the appeal

63 When looking at the prospects of success of the appeal I must look at the relevant principles on an application to set aside default judgment.

64 A party seeking to set aside a default judgment must both provide a reasonable explanation as to how the judgment came to be entered and also present a credible case demonstrating that, if the default judgment was set aside and the matter was argued on its merits, that party would have a real prospect of success: Parker v Transfield Pty Ltd [2000] WASCA 382 [3] and [4]; Hall v Hall [2007] WASC 198 [61] - [67].

65 The court has a discretion to set aside a default judgment. There are two fundamental principles relating to the exercise of the discretion. The first is that the discretion is unfettered and no hard and fast rules can be laid down as to how it is to be exercised. The second is that the discretion is to be exercised so as to do justice between the parties, having regard to the particular circumstances of the case: Hall v Hall [63].

66 Having regard to the affidavits sworn by Mr Lance in support of the application to set aside default judgment, in my view there is no reasonable explanation as to how the judgment came to be entered. In fact, it appears from Mr Lance's affidavit of 22 January 2013, as I have set out in [20] above, that he made a conscious decision not to attend the adjourned pre-trial conference because the defendant had requested to have the case dismissed.

67 In addition, having regard to the 'Reasons for Delay' set out in Mr Lance's affidavit in support of the application to set aside the default judgment, which I have set out in [27], his explanations for not bringing an application to set aside the default judgment until 22 January 2013 are also inadequate. His explanation that he did not receive any further contact from the defence to bring the matter to his attention must be rejected, in light of the correspondence he did have with the respondent's solicitors which I have set out in [28] above. Mr Lance was aware that the default judgment was entered, he was aware that the respondent was seeking payment of her costs, and he actually attended the taxation of those costs on 27 September 2012. It was only after the means inquiry was listed for hearing that he then brought the application to set the default judgment aside (and then only three days before that hearing, when he must have had notice of the hearing date shortly after 6 December 2012).

68 As to the merits, Mr Lance's grounds of appeal are as follows:

1. The decision is against the weight of the evidence.
2. The appellant has suffered loss and damage as a result of services rendered by the respondent. Competition and Consumer Act 2010 s. 13(a)(b), part 3-2 division 1 subdivision B s. 60, 61.
3. Magistrate Scadden erred when applying conditions on the appellant to satisfy the burden of proof contrary to the Trade Practices Amendment Act s. 28, 29.
4. The respondent mislead the appellant by making false and misleading statements which lead the appellant to proceed with a verbal contract and purchase services from the respondent contrary to the Competition and Consumer Act 2010 chapter 2 part 2-1 s. 18. Australian Consumer Law.
5. The respondent's unconscionable conduct and indulgence in unfair practices has disfigured and injured the appellant contrary to the Competition and Consumer Act 2010 schedule 2 s.21, 22, part 3-2 division 1 subdivision B s. 60, 61.
6. The appellant paying the respondent's costs is in contradiction of the Competition and Consumer Act 2010 schedule 2 part 4-7 section 213 and should be struck out.

69 Some of the appeal grounds are difficult to understand, however, I have taken into account that Mr Lance is a self-represented litigant and I need to determine whether, notwithstanding poorly expressed grounds, there is merit in the grounds of appeal: Tobin v Dodd [13] - [18].

70 It is apparent that when Mr Lance is referring to the Competition and Consumer Act 2010 he means the Australian Consumer Law (ACL) contained in Sch 2 to the Competition and Consumer Act 2010 (Cth).

71 The ACL came into operation on 1 January 2011. Mr Lance's claim relates to services provided by the respondent during 2010, as well as 2011.

72 I will proceed on the basis, however, that Mr Lance's claims in relation to conduct occurring prior to 1 January 2011 might be brought pursuant to the former Trade Practices Act 1974 (Cth) (TPA) or Fair Trading Act 1987 (WA) provisions.

73 From the submissions he made during the course of the appeal hearing, and as I confirmed with him more than once during the hearing, Mr Lance's claim is based on the provision of services by the respondent without due care and skill, which has left him with an injury, namely worsened scarring.

74 The scarring includes the appearance of the 'K' and 'V' scars, although these were not matters specifically raised before the magistrate.

75 I should observe that scarring to Mr Lance's face was not apparent to me under the lighting in the court room. When I raised this with Mr Lance he advised that his scars were not visible under illuminated light (ts 4; ts 9).

76 Later, however, he claimed that the scarring was obvious as the light changes (ts 9).

77 He also advised me that the 'K' scar resembled a symbol for a street gang in America.

78 Mr Lance also claimed, later during the appeal hearing, that he had a sagging right check. This is a matter which has not previously been raised in any way.

79 Section 40(4) of the MCCPA requires me to take into account the material and evidence that were before the magistrate, unless I give leave to admit other evidence. Leave may only be given to admit other evidence in exceptional circumstances: see MCCPA s 40(5).

80 In the circumstances of this appeal I am not prepared to give leave to admit any evidence concerning the 'K' and 'V' scars, or sagging cheek, or to proceed on the basis of what Mr Lance told me from the bar table. I will proceed, as I informed Mr Lance that I would, on the basis of the evidence which was before the magistrate at the time of the hearing of the application to set aside default judgment.

81 I should observe, however, for the reasons I have discussed when considering this in the context of the issue of delay (see [56] to [61] above), even if I took into account what Mr Lance has told me about the 'K' and 'V' scars, it would make little difference to my consideration of this appeal because in either case, his claim relates to 'worsened scarring'.

82 In relation to Mr Lance's grounds of appeal, from the discussions I had with Mr Lance during the appeal hearing, the main complaint he has about the magistrate's decision is that the magistrate said that Mr Lance would need to provide evidence from a medical practitioner by way of a report as to his scarring and what could be done by way of treatment.

83 The affidavit of Mr Lance sworn 22 March 2012 contains no evidence as to the extent of the scarring to Mr Lance's face before treatment by the respondent and nothing was produced to support his allegation that the scarring on his face had worsened as a result of that treatment. There was also no evidence as to the loss or damage said to have been suffered as a result of the worsened scarring.

84 Mr Lance believed, however, having gone through the provisions of the ACL, that there was no need for him to produce evidence of this type.

85 It was apparent, from particular passages which he read to me during the appeal hearing, that Mr Lance's reference in appeal ground 3 to s 28 and s 29 of the Trade Practices Amendment Act is a reference to pars 28 and 29 of the Explanatory Memorandum for the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010, referring to the evidentiary burden on a respondent where there is a claim for false and misleading conduct in respect of future matters.

86 Based on these and other provisions of the ACL, as I understand Mr Lance's argument, all he needed to prove was that a transaction in trade and commerce took place between him and the respondent. For example, he submitted (ts 17):

Well, basically the - the - the evidence, burden of proof, is stated in the Consumer Practices Act. That is evidentiary in nature. And it's evident to me. I've learned this by things that are applicable in all this, anything that can be gleaned with your five senses.

... it was insisted by the registrar that I go and seek further medical evidence and provide a medical report and given that my case is based on the fact that we have entered into a - a trade agreement and that it's taken place, that is evidence enough and evidence of the matter itself taking place in the course of trade. It is not necessary for - for the appellant to file - to provide - to satisfy the burden of proof further than the fact that it took place in the first place and that the defendant did enter into a trade agreement, did provide representations as to the services that - that could be provided and were to be provided for over a space of time for a certain amount of money and the results that could be achieved.

88 I am not able to accept this argument. Mr Lance bears the onus of proving his loss or damage.

89 Any person who brings a claim for damages for an injury, whether the claim in negligence at common law or under the Civil Liability Act 2002 (WA), or for breach of contract, or as a consumer under the ACL, TPA or other statutory provision, has the onus of proving both the fact and the amount of the damage: Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 [91]; Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 80, 99, 118 and 137 - 138; Sellars v Adelaide Petroleum Pty Ltd (1994) 179 CLR 322, 355 - 359.

90 The High Court has stated that actual loss or damage is an 'essential ingredient' in any claim under the ACL or TPA: see ACL s 236; TPA s 82; Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 526 - 539. Damage is also an 'essential ingredient' in a claim in negligence: Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 [109].

91 For the purpose of the application to set aside the default judgment, it was necessary for Mr Lance to present a credible case demonstrating that, if the default judgment was set aside and the matter was argued on its merits, he would have a real prospect of success.

92 A conclusionary statement by Mr Lance in his affidavits sworn in support of the application to set aside judgment, that his scarring is worsened, was not sufficient.

93 It was necessary for him to provide some evidence as to his injury, and his loss or damage, by way of evidence as to:

(a) the extent of the scarring he had before he underwent treatment by the respondent;

(b) the extent of the scarring following the treatment provided by the respondent and how it has worsened;

(c) what treatment is necessary, and the cost of that treatment; and

(d) what other loss or damage has been actually suffered as a result of the injury.

94 Mr Lance did not provide any such evidence. Accordingly, to the extent that Mr Lance bases his appeal on the magistrate's reference to this lack of evidence in his application to set aside default judgment, or the burden of proof, there is no merit in his appeal. In particular:

(a) there is no merit in appeal ground 1 that the magistrate's decision was 'against the weight of the evidence' given the lack of evidence produced on the application;

(b) there is no merit in appeal ground 2 given the absence of evidence about the loss or damage suffered by Mr Lance; and

(c) there is no merit in appeal ground 3 in relation to the burden of proof.

95 Appeal ground 4 relates to Mr Lance's argument that the respondent engaged in false and misleading conduct. Mr Lance relied on what was set out in his affidavit of 22 March 2013 as to the discussions he had with the respondent before treatment commenced:

The claimant approached Elisabeth Hodedyk at Skin Revision and made enquiries into treatment for 2 small scars on his face. The defendant assessed the scarring on the claimant's face. When asked by the claimant how many treatments would be needed, the defendant said '3 to 4 treatments'. The defendant stated that she 'charges $500 per hour for skin needling treatments.'

When the defendant Elisabeth Hoderdyk was asked by the claimant about results the defendant stated 'the service I provide is properly certified and that I have many happy customers and yes it does work,' the defendant then pointed to completed training certificates on the wall at Skin Revision.

96 As I understand Mr Lance's submissions, what was said about the number of treatments he required and what he could expect to achieve with the treatments are said to be representations which are false and misleading, because the treatments were not rendered with due care and skill and he was not achieving the results that he was looking for (ts 16).

97 There is no evidence upon which it could be concluded that, if the default judgment was set aside and the matter was argued on its merits, Mr Lance would have a real prospect of success in showing that the respondent failed to carry out the treatments with due care and skill.

98 Even assuming that Mr Lance could show an arguable case that the respondent did not carry out the treatments with due care and skill, the question whether conduct is misleading or deceptive must be considered at the time of the conduct that is engaged in - the time when the representation is made - and not by reference to subsequent events: Concrete Constructions Group Ltd v Litevale Pty Ltd [2002] NSWSC 670; (2002) 170 FLR 290 [155], [156].

99 It is true that where it is alleged that a person made a representation with respect to a future matter, the respondent bears an evidentiary onus to show there were reasonable grounds for making it. But a representation that a person will do something in the future will not be shown to be misleading or deceptive at the time it was made simply by showing that when the time came to do that thing, the person did not do it: Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [59].

100 Thus, assuming that the matters in Mr Lance's affidavit as I have set out in [95] are representations, and that they were as to future matters, the fact that the respondent did not subsequently carry out the treatments with reasonable care and skill does not mean that the representations were misleading when they were made.

101 In addition, as I have already discussed in [93] and [94], to show a real prospect of success in any claim for false and misleading conduct, it was necessary for Mr Lance to provide evidence of his injury and loss or damage and he did not provide that evidence.

102 In my view, on the evidence that was before the magistrate, there is no credible case of false and misleading conduct which would have a real prospect of success and thus there is no merit to appeal ground 4.

103 Mr Lance's appeal ground 5 relates to the magistrate's dismissal of his arguments relating to unconscionable conduct on the part of the respondent. The magistrate found that Mr Lance had no evidence to support a claim for unconscionable conduct by the respondent.

104 Mr Lance's argument before me was that there was evidence of unconscionable conduct by the respondent, submitting as follows (ts 23 and ts 25):

Now, in the course of trade, when a person enters into a contract, at the end of that contract if it is doubled in time and the person has paid for those services, and they ask the person servicing it why they haven't achieved the results they were entitled to achieve or told that they could achieve, in twice the amount of time with twice the amount of moneys being spent. You generally not - it - it is not considered good trade to be told - for that person to turn around and tell you that you're a joke. I mean that's flippin' attitude and a complete disrespect for trade and the attitude towards a consumer. The whole consumer - it goes against the grain of Consumer Practices Act. And to - to - to do that is plainly unjust.

....

Unconscionable conduct is based on unfair practices, on misleading - I mean having no conscience, having the - having myself being injured in the course of trade and for the attitude to be, 'you're a joke', for myself, not knowing and entering into the agreement in good faith and not having any prior knowledge of this person or this person's history or this person's heritage and ---

105 During the appeal hearing I raised with Mr Lance the fact that the incident where he said the respondent told him he was 'a joke' was well after the event and not relevant. Mr Lance submitted to me that it was relevant because it showed 'that the person has no conscience. It is unconscionable' (ts 28) and was 'evidence of the conduct of the defendant' (ts 30).

106 Mr Lance has used 'unconscionable' in his arguments and submissions to describe conduct which he considers is unacceptable towards a consumer, however, this is not the type of conduct that is dealt with under s 20 or s 21 of the ACL or s 51AA or s 51AB of the TPA.

107 The legal meaning of 'unconscionable' is very different from the way the word is used in every day speech as a method of expressing disapproval of someone else's behaviour: ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 [5] to [14] (Gleeson CJ).

108 Unconscionable conduct under the ACL or TPA involves a party who suffers from some special disability or is placed in some special situation of disadvantage and an 'unconscionable' taking advantage of that disability or disadvantage by another: ACCC v CG Berbatis Holdings Pty Ltd [5]; see also Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, 461.

109 Unconscionable conduct does not include conduct which is 'merely unfair or unjust': Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 [121]; Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 [291] - [293]; ACC v Lux Distributors Pty Ltd [2013] FCAFC 90 [41].

110 Further, to show that conduct is 'unconscionable' it is necessary to do more than merely show that the respondent's behaviour is misleading or deceptive or otherwise in breach of some other provision of the ACL or TPA: Australian Competition and Consumer Commission v 4WD Systems Pty Ltd [2003] FCA 850; (2003) 200 ALR 491 [185].

111 In Mr Lance's case there is no evidence of 'unconscionable conduct' within the legal meaning of that expression.

112 In my view, there is no merit to Mr Lance's appeal ground 5 and no error by the magistrate in dismissing his argument in relation to unconscionable conduct.

113 For these reasons, after taking into account the matters that were raised by Mr Lance during the appeal hearing, I am not satisfied that any of the grounds raised in his notice of appeal have merit.

114 Applying the principles relevant to an application to set aside default judgment, I consider that the magistrate was entitled to exercise her discretion against allowing Mr Lance's application to set aside the judgment. On the materials which were before the magistrate, Mr Lance did not provide a reasonable explanation as to how the judgment came to be entered and he did not present a credible case demonstrating that, if the default judgment was set aside and the matter was argued on its merits, he would have a real prospect of success.

115 It is now more than 18 months since the respondent obtained judgment by default. The respondent has the benefit of the judgment and obtained a right to proceed as though an appeal would not be filed and in fact did so proceed, at her cost. The respondent incurred costs associated with applications for the taxation of costs and a means inquiry.

116 It has also been recognised, and courts now take into account, the strain which litigation may place on the parties to it and the natural desire of most litigants to be freed from the anxiety, distraction and disruption which litigation causes. Because justice cannot be measured solely in monetary terms, costs orders are not necessarily an adequate balm to the other party: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [100] - [101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

117 In the particular circumstances of this case, I consider that if leave to appeal is granted to Mr Lance, there will be prejudice to the respondent which cannot be wholly ameliorated by a costs order.

118 Balancing all of the factors relevant to determining whether an extension of time should be granted, I am not satisfied that the court should grant to Mr Lance an extension of time within which to appeal in this matter.

119 All of the factors weigh against the grant of an extension of time. The delay was lengthy. Not all of the delay has been adequately explained. There is no merit to Mr Lance's grounds of appeal. There will be prejudice to the respondent if an extension of time is granted.

120 The application for the extension of time within which to appeal must be refused and the appeal must be dismissed, and I will make orders accordingly.