DULUXGROUP (AUSTRALIA) PTY LTD -v- CHAPPLE [2023] WASCA 83 (25 May 2023)

The appeal court may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.

1. This court may make an order under s 43(3) on its own initiative.[3] Often, however, no judicial officer will consider the papers in an appeal until shortly before the appeal hearing. That is what occurred in this appeal. By then most of the costs arising in the appeal will have been sunk - a matter of consequence to the exercise of discretion under s 43(3) which, by its reference to 'likely costs', directs attention to costs yet to be incurred. The practical operation of s 43(3) relies on one or both of the parties' legal representatives bringing to the attention of the court that it is possible that the likely costs of the appeal to the parties will be disproportionate. In this respect the parties' legal representatives' duty to the court to act with independence in the interests of the administration of justice is paramount and, to the extent of any conflict, prevails over the duty to their clients.[4]
2. In this appeal the parties' legal representatives did not inform the court at an early stage after lodgement of the appeal notice that there was a real possibility that the likely costs of the appeal to the parties would be disproportionate in terms of s 43(3).[5] In the future, in any case where such a real possibility exists, that should occur as a matter of course. All that is required is a letter to the Court of Appeal registrar. The letter should, preferably, be a joint letter - but if one party's legal representatives refuse to participate in the sending of such a letter it will suffice if the other party's legal representatives send the letter to the court and copies it to the other side.
3. These reasons will deal with the issues on the appeal as briefly as possible given the nature of the case the subject of the appeal. For the reasons that follow the appeal should be allowed. The magistrate provided legally adequate reasons for the making of the costs order. The Commissioner was in error in concluding to the contrary.

1. The primary reasons contain a comprehensive account of the litigation in the Magistrates Court.[6] It was not suggested that there was any error in the Commissioner's recitation of what occurred in the Magistrates Court. Accordingly, rather than repeat what was said in the primary reasons, these reasons should be read with the relevant part of the primary reasons.
2. In summary:
   1. The respondent, Stephen Chapple, lodged a claim in September 2020 against Dulux seeking $10,249.20.
   2. Dulux had supplied paint to Mr Chapple in 2016 and 2020.
   3. Mr Chapple argued that the render supplied by Dulux in 2016 was the wrong colour as it was darker than the render supplied in 2020.
   4. After a trial on 16 November 2021 Magistrate Malone gave oral reasons dismissing Mr Chapple's claim.
   5. In dismissing the claim the magistrate referred to the evidence of two witnesses called as expert witnesses. Mr Chapple called an Andrew Booth and also tendered Mr Booth's report dated 28 April 2021. Dulux called an Armand Zurhaar and tendered Dr Zurhaar's report dated 8 October 2021. The magistrate concluded that Mr Booth did not have the necessary expertise to give the evidence that he gave. However, the magistrate accepted Dr Zurhaar's expertise and his expert evidence.
   6. Ultimately the magistrate did not accept the premise of Mr Chapple's claim. The claim was dismissed.
   7. The magistrate also ordered Mr Chapple to pay Dulux $7,508 in costs. This comprised $198 for service fees and $7,310 for expenses payable to Dr Zurhaar ($5,610 for the expert report and $1,700 for attending to provide evidence).
   8. In ordering Mr Chapple to reimburse Dulux for the costs of its expert it was necessary for the magistrate to conclude that, because of the existence of exceptional circumstances, an injustice would be done to Dulux if those costs were not ordered to be paid.
3. One matter of significance - both to the litigation and the resolution of the appeal - is that Mr Chapple's claim was lodged as a 'minor case' under pt 4 of the Magistrates Court (Civil Proceedings) Act.
4. It will be necessary, in due course, to summarise the magistrate's reasons for making the costs order. The Commissioner found that the magistrate's reasons were not legally adequate.[7] In the appeal to this court, by ground 1, Dulux contended among other things that this finding of the Commissioner was erroneous as the magistrate did give adequate reasons for the costs order.
5. On appeal to the District Court, Mr Chapple raised three grounds. Grounds 1 and 2 were dismissed and are not in issue in this appeal. By ground 3, Mr Chapple contended that the magistrate denied him natural justice by failing to provide adequate reasons for the costs order. Mr Chapple argued that: (1) the magistrate did not identify the 'exceptional circumstances' that were required for the making of a costs order. It was said that the calling of an expert witness was not of itself an exceptional circumstance; and (2) the magistrate did not inform the parties why the case was exceptional - the circumstances of the case being 'self-evidently unexceptional'.[8]
6. The Commissioner upheld ground 3. His Honour was satisfied that the magistrate did not provide adequate reasons for the costs order. The Commissioner concluded that the magistrate's reasons did 'not identify the relevant fact(s) that made these circumstances exceptional and why that was so'.[9] In coming to this conclusion the Commissioner stated that a fair reading of the magistrate's reasons did not reveal why the relevant circumstances were exceptional.[10] The Commissioner was also satisfied that the magistrate's reasons involved a denial of natural justice.[11] An order was made allowing the appeal and setting aside the order of the Magistrates Court requiring Mr Chapple to pay Dulux's costs of the minor claim in the Magistrates Court in the sum of $7,508.
7. This finding is the subject of ground 1 in the present appeal.
8. Before addressing ground 1, we will mention two unusual aspects of the Commissioner's approach and order in allowing the appeal. First, his Honour set aside the costs order without considering whether the costs issue should be remitted to the magistrate or whether his Honour should himself consider and determine the costs issue. One of those options would be the ordinary result where the magistrate's costs order was tainted due to inadequacy of reasons. To do otherwise unfairly disadvantages the unsuccessful party - its application for costs fails without any determination on the merits. The course adopted by the Commissioner was also inconsistent with the recognition that a failure to provide legally adequate reasons will not always amount to appellable error. The court will only intervene where the inadequacy or insufficiency in the reasons is such as to give rise to a miscarriage of justice.[12] There could be no miscarriage of justice if, properly considered, exceptional circumstances existed whereby an injustice would be done to Dulux if the costs of its expert were not ordered to be paid.
9. Second, in this case the setting aside of the magistrate's costs order had the effect of depriving Dulux of the $198 in costs for service fees. There was no basis for doing so. These were allowable costs in relation to which Dulux was entitled to an order for costs (see [29] - [30] below). This aspect of the Commissioner's order appears to be inadvertent oversight. It was not, however, the subject of any ground of appeal.
10. The Commissioner also ordered that Dulux pay 70 per cent of Mr Chapple's costs of the appeal in the District Court. This finding is the subject of ground 2 in the present appeal.

1. Before turning to the issues in the present appeal it is necessary to refer to some aspects of the relevant statutory framework.
2. Mr Chapple elected to have his claim heard as a minor claim in the Magistrates Court. This had implications for the magistrate's duty to give reasons, the making of a costs order and the right to appeal. It also had implications for the procedure of the Magistrates Court in resolving the claim.

1. Section 31 of the Magistrates Court Act 2004 (WA) applies generally in that court's civil and criminal jurisdiction. It states:

(1) The Court's reasons for a judgment in a case:

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

1. The parties did not address this court on whether a costs order was a 'judgment' for the purpose of s 31(1) of the Magistrates Court Act. It is not necessary to come to a conclusion on this point - and inappropriate to do so given that the question was not the subject of full submissions. Section 31(1) is, in any event, relevant statutory context in considering what suffices in terms of the content and detail of reasons in the Magistrates Court generally.

1. A 'minor case' includes a claim within the Magistrates Court's jurisdiction where the value of the claim or the relief claimed is not more than $10,000 and the claimant has elected to have the claim dealt with under the minor cases procedure.[13]
2. Part 4 of the Magistrates Court (Civil Proceedings) Act deals with the minor cases procedure in the Magistrates Court. The Magistrates Court must deal with a minor case in accordance with the minor cases procedure unless an order is made to the contrary (s 28). No such order was made in the present litigation.
3. The object of the minor cases procedure is provided for in s 27:

(1) The primary object of the Court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties.

(2) The Court may, at any stage of the proceedings, do all things and take all such steps as it considers to be appropriate to achieve that primary object.

1. The Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) apply in every minor case unless the Magistrates Court orders otherwise in a particular case.[14] No such order was made in the present litigation. There are numerous differences between the minor cases procedure under the Magistrates Court (Minor Cases Procedure) Rules and the general procedure that applies under the Magistrates Court (Civil Proceedings) Rules 2005 (WA) to other claims in the Magistrates Court's civil jurisdiction. For example, relevant to the present appeal, the general procedure provides for orders for the use of expert evidence.[15] There is no provision for the use of expert evidence under the Magistrates Court (Minor Cases Procedure) Rules.
2. In Rankilor v Circuit Travel Pty Ltd Newnes JA (Pullin JA agreeing) summarised the nature of the minor cases procedure in the Magistrates Court:

It is evident that the minor cases procedure is intended to provide a speedy, informal and inexpensive process for the resolution of claims not exceeding $10,000. To that end, the Act provides that the court is to act with as little formality as it thinks reasonable and is not bound by the rules of evidence but may inform itself as it thinks fit: s 29(3), (4). Unless the court otherwise directs, all proceedings are to be held in private (s 29(1)) and the parties are not entitled to legal representation (s 30). Ordinarily, the only costs allowable to a successful party are court and service fees, and the costs of enforcing a judgment: s 31.[16]

1. As noted in Rankilor, there is a different regime as to costs in relation to a minor claim in the Magistrates Court. The general provision as to costs in the Magistrates Court's civil jurisdiction is found in s 25 of the Magistrates Court (Civil Proceedings) Act. Relevantly, this states:

(1) The Court may order a party to a case to pay the whole or a part of another party's costs in the case.

(2) A successful party is entitled to an order under subsection (1) that the whole of its costs in the case be paid by the unsuccessful party, unless the Court considers there is good reason not to make such an order or subsection (5) applies.

1. Subsection 25(5) provides an exception where the value of the claim or the relief claimed is not more than the minor cases jurisdictional limit.
2. Section 31 of the Magistrates Court (Civil Proceedings) Act modifies the power to order costs where the claim is a minor case. Section 31(2) states:

A successful party to a minor case is entitled to an order under section 25(1) in relation to the party's allowable costs but not in relation to the party's other costs in the case.

1. The 'allowable costs' include court fees and service fees paid by the successful party.[17] Thus, in the present litigation, the $198 incurred by Dulux for service fees were allowable costs and fell within the prima facie entitlement under s 25(1) as read with s 31(2). However, the $7,310 in expenses associated with Dr Zurhaar were 'other costs'. There was no prima facie entitlement to a costs order in respect of those costs. To obtain a costs order Dulux had to satisfy the criteria under s 31(3) of the Magistrates Court (Civil Proceedings) Act.
2. In that respect, s 31(3) relevantly provides:

Despite subsection (2), the Court may make an order under section 25(1) as to the payment of the party's other costs by another party if it is satisfied that:

(a) because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or

(b) the unsuccessful party's claim or defence was wholly without merit[.]

1. In the present litigation the magistrate relied on s 31(3)(a) of the Magistrates Court (Civil Proceedings) Act in making the costs order in favour of Dulux in respect of the $7,310 in expert costs. The magistrate was satisfied, in terms of s 31(3)(a), that because of the existence of 'exceptional circumstances' an injustice would be done to Dulux if those expert costs were not ordered to be paid.

1. There is a limited appeal right against an order or judgment of the Magistrates Court in a minor case. Relevantly, by s 32(3) of the Magistrates Court (Civil Proceedings) Act, an appeal against a judgment in a minor case may only be made on the grounds:

(a) that the minor case: > > > (i) was not within the jurisdiction of the Court; or
> >
> > (ii) was not a minor case; or > >
>
> (b) that in dealing with the minor case there was a denial of natural justice; or
>
> (c) that the judgment was beyond the Court's jurisdiction

2. Accordingly, an unsuccessful party has no right of appeal on the merits.
3. Mr Chapple, in his appeal to the District Court, relied on s 32(3)(b). He contended that there was a denial of natural justice in dealing with the minor case. Relevantly, in respect of the costs order and Mr Chapple's ground 3 in the District Court appeal, he contended that the denial of natural justice arose by reason of the failure to provide legally adequate reasons. The Commissioner was satisfied that the magistrate's reasons involved a denial of natural justice under s 32(3)(b) of the Magistrates Court (Civil Proceedings) Act.[18]

Disposition - Ground 1: the adequacy of the magistrate's reasons The ground and the parties' submissions

1. By ground 1 Dulux alleged that the Commissioner erred in finding that the magistrate failed to give sufficient reasons for the costs order and thereby denied Mr Chapple natural justice for the purpose of s 32(3)(b). The ground separately challenged the Commissioner's findings that:
   1. The magistrate did not give adequate reasons for decision.[19]
   2. The circumstances identified by the magistrate were not exceptional - thereby making a determination on the merits and going beyond the jurisdiction under s 32(3)(b).[20]
   3. As a result of the inadequacy of the reasons there was a relevant denial of natural justice for the purpose of s 32(3)(b).[21]
   4. The magistrate's reasons denied Mr Chapple an opportunity to present his case.[22]
2. Dulux's written and oral submissions were directed to establishing those four propositions. Dulux submitted that the Commissioner conflated the question of whether the magistrate gave adequate reasons with whether the reasons disclosed error - the Commissioner was said to have approached the challenge to the costs order incorrectly by determining whether the magistrate was wrong on the merits to conclude that there were exceptional circumstances.[23] Properly understood, according to Dulux, the reasons were sufficient.[24] There was, in any event, no denial of natural justice in dealing with the minor case.[25] In the latter respect Dulux contended that there was no denial of natural justice as Mr Chapple was not, on the facts, denied an opportunity to present his case in response to unspecified relevant facts that made the matter exceptional.[26]
3. Mr Chapple resisted ground 1 by contending, in effect, that the Commissioner was correct, for the reasons that he gave, to conclude that the magistrate's reasons for the costs order were legally inadequate.
4. Mr Chapple submitted that:
   1. The Commissioner correctly found that the magistrate had not identified what it was that made the circumstances exceptional. No reasoning or intellectual process was disclosed connecting the facts with the finding that the circumstances were exceptional.[27]
   2. The Commissioner did not err by making a finding on the merits - in the impugned passage his Honour was simply pointing to there being a distinct lack of reasons linking what on their face appeared to be unexceptional circumstances with the magistrate's finding that the circumstances were exceptional.[28]
   3. There was a denial of natural justice so far as the magistrate's reasons were legally inadequate.[29]

1. The parties sought to analyse the Commissioner's reasons in great depth. Those submissions missed the point. The Commissioner's reasoning process is not the issue. The substantial issue for determination in this appeal is whether or not the magistrate's reasons for the costs order were legally adequate. The reasons either were - or were not - legally adequate. The correctness standard of appellate review applies.
2. Accordingly, this court must form its own view on the legal adequacy of the magistrate's reasons.
3. The Commissioner set out the background context to the magistrate's reasons.[30] It is not necessary to repeat those matters. The Commissioner also reproduced the relevant portion of the magistrate's reasons.[31] The magistrate unequivocally identified that, in order to award Dulux costs by way of reimbursement of Dr Zurhaar's expert fees, the magistrate had to be satisfied that because of the existence of exceptional circumstances an injustice would be done to Dulux if those costs were not ordered to be paid.[32]
4. In assessing whether that test was satisfied the magistrate reasoned:

In my judgment, it falls [sic - comes] down - [to whether] because of the existence of exceptional circumstances an injustice would be done to the successful party, and the reality is that ... Dulux - who have been put to the expense of employing Dr Zurhaar, who was quite properly the expert. Mr Booth, with all due respect, just didn't have the expertise. They [ie Dulux] would be the ones paying what Mr Chapple describes as being the outrageous fees [of Dr Zurhaar] and are unjustified.

So it would be in a situation where Mr Chapple is basically saying, 'Well, he charged way too much and that's Dulux's fault in some way, and they should have to pay his fees'. Now, Dulux did call the appropriate expert. His evidence was pivotal, really, in the determination of the matter, and it really did show that Mr Chapple had adopted an untenable position, essentially, in bringing the claim, whether he was prepared to resolve it in a certain way or not.

So with bearing in mind that I can only order it in exceptional circumstances, I am persuaded that an injustice would be done in this case to Dulux if I didn't order the payment of Dr Zurhaar's fees.[33]

1. The Commissioner correctly identified that the key parts of the magistrate's reasons were that:[34]
   1. Dulux had been put to the expense of employing Dr Zurhaar, who was the expert.
   2. Mr Chapple's expert, Mr Booth, did not have the relevant expertise.
   3. Mr Chapple had adopted an untenable position in support of his claim.
   4. In contrast, Dulux had engaged an expert, Dr Zurhaar, whose evidence was 'pivotal ... in the determination of the matter'.
2. The Commissioner inferred that these were the 'key circumstances' on which the magistrate relied in finding exceptional circumstances for the purpose of s 31(3)(a) of the Magistrates Court (Civil Proceedings) Act. It is not necessary to so infer. That magistrate expressly stated that these were the circumstances on which he relied. The magistrate's reasons thereby unequivocally identified the relevant facts on which he relied to conclude that there were exceptional circumstances which enlivened the power under s 31(3)(a). To the extent that the Commissioner seemingly held otherwise - saying that the magistrate's reasons did not identify the relevant facts that made the circumstances exceptional[35] - the Commissioner was in error.

1. The generally applicable principles dealing with the adequacy of reasons are well-established.[36] In evaluating the adequacy of reasons for decision the critical question is whether the essential path of reasoning to the impugned conclusion is disclosed in sufficient detail and with sufficient certainty to meet the twin objects that: (1) the litigant knows why he or she was unsuccessful; and (2) an appeal court may determine whether the decision involved appellable error.[37]
2. As was stated in Browne v Browne:

The principles relevant to an evaluation of the adequacy of reasons are well established and include the following:

(1) Reasons for decision need not be lengthy or elaborate.

(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.

(3) It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires.

(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.[38] (citations omitted)

1. As to the last point, the authorities accept that the content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.[39]
2. There are four ways in which the nature of the jurisdiction being exercised and the subject matter of the magistrate's decision affected the practical content of the duty to give reasons in the present case:
   1. First, as has been seen (see [20] above), s 31 of the Magistrate's Court Act provides statutory recognition of what suffices for sufficient reasons when providing 'reasons for a judgment in a case' in the Magistrates Court.
   2. Second, the reasons were required in the course of the magistrate dealing with a minor case. This court has accepted that, in dealing with a minor case, the requirements of natural justice are to be viewed in the context of the minor cases procedure of the Magistrates Court.[40] So too, in our view, the adequacy of the magistrate's reasons is to be assessed in the context of the informal and expeditious nature in which it is expected that the Magistrates Court will deal with a minor case.
   3. Third, there is a limited right of appeal against the magistrate's costs order (see [33] - [34] above). An important function of reasons is to facilitate the exercise of a relevant statutory right of appeal. In assessing the adequacy of the magistrate's reasons by reference to whether they deprive the unsuccessful party of an effective right of appeal due regard must be had to the limited grounds which might sustain an appeal. Importantly, no appeal lies on the merits of the decision.
   4. Finally, the decision was a costs determination. The extent to which reasons are required when a court deals with an argument as to costs varies according to context.[41] There are occasions where very brief reasons might suffice. Satellite litigation as to costs should not be allowed to assume a life of its own, disproportionate to its significance. It is in the interests of the parties and the public that disputes as to costs be resolved as quickly, efficiently and inexpensively as possible.
3. The approach to be adopted in assessing the adequacy of reasons in the Magistrates Court was also considered by Martin CJ in Strahan v Brennan.[42]
4. Martin CJ acknowledged that magistrates must give adequate reasons for their decisions. To do so the magistrate's reasons must disclose the underlying intellectual process which gives rise to his or her conclusions. However, the content of the obligation to give reasons is informed by s 31 of the Magistrates Court Act and the status of the Magistrates Court as a summary court. Magistrates are to conduct their business with expedition and with a degree of informality appropriate to the disposition of the large volume of cases which are brought before those courts every day. It is not appropriate to scrutinise a magistrate's reasons with a fine-tooth comb or an eye keenly attuned to the identification of error. Nor is it appropriate to infer error or inadequacy from infelicity of language. Thus the adequacy of a magistrate's reasons must be assessed in the context of that particular case so that what might appear to be unacceptable economy of language might be justified by the manner in which the case was conducted or by the evidence that was adduced.[43]
5. These observations should be understood as correctly describing how, in certain respects, the nature of the Magistrates Court's jurisdiction affects what is required as to the content and detail of a magistrate's reasons for decision.

1. The submissions of both parties proceeded on the premise that a failure to give adequate reasons can constitute a denial of natural justice. However, it may be questioned whether, on the proper construction of s 32(3)(b) of the Magistrates Court (Civil Proceedings) Act, a failure to provide legally adequate reasons will constitute a denial of natural justice in dealing with a minor case.
2. We acknowledge that the duty to provide reasons has been described as a 'function of due process, and therefore of justice'.[44] Also, in Tran v Claydon McLure J (as her Honour was then), with Steytler and Johnson JJ agreeing, said that, in addition to securing a right of appeal, the obligation to give reasons 'is an aspect of procedural fairness to a litigant who is entitled to know why it is that he or she has been successful or unsuccessful'.[45] But determining whether inadequate reasons can constitute a denial of natural justice was not necessary for the decision in Tran or the cases cited in support of the proposition in Tran. Further, in the more recent High Court decision of Minister for Immigration v AAM17 there are observations which - taken to their logical conclusion - support the view that the provision of legally inadequate reasons could not amount to a denial of natural justice in dealing with a minor case.[46] That would be the case if, as was not contested in AAM17, the giving of reasons is not an aspect of the duty to provide procedural fairness but rather a vital incident of the judicial function.[47]
3. Be that as it may, given the grounds of appeal and the manner in which the appeal was argued, it is convenient to turn to the question of whether the magistrate's reasons for the costs order are legally sufficient. If the magistrate's reasons are legally sufficient then, on any view, the appeal to this court must be allowed.
4. Two things are immediately obvious. First, in terms of s 31(1)(a) of the Magistrates Court Act, the magistrate identified the facts he accepted in coming to the costs determination (see [43] ‑ [45] above). The magistrate's reasons for accepting those facts were bound up in and followed the magistrate's findings to like effect made in determining the merits of the substantive claim. There was no suggestion that the reasons for those findings were inadequate. Nor could it be suggested that the magistrate had to repeat the reasons for those findings in the context of the costs determination. To the contrary it may be inferred that the magistrate accepted those facts for the reasons as previously stated in determining the merits of Mr Chapple's minor case.
5. Second, in terms of s 31(1)(b) of the Magistrates Court Act, the magistrate identified the law he applied in coming to the costs determination (see [42] - [43] above). It is plain from the language employed by the magistrate that he had considered and applied the statutory text of s 31(3)(a) of the Magistrates Court (Civil Proceedings) Act. Confirmation in that respect is provided by the magistrate having temporarily adjourned the costs argument so that he could obtain a copy of the Act and read the statutory pro[48]sion to the parties.48
6. Accordingly, the magistrate's reasons satisfied the positive requirements in s 31(1) of the Magistrates Court Act.
7. Mr Chapple said, however - and the Commissioner found - that the magistrate's reasons do not reveal why the relevant circumstances were exceptional. The burden of the contention was that no reasoning or intellectual process is disclosed connecting the facts as found with the conclusion that the circumstances were exceptional.
8. We disagree. The substance of the magistrate's reasoning as revealed by a fair reading of the magistrate's reasons as a whole is that the circumstances were exceptional, such that injustice would be done to Dulux if the expert costs were not ordered to be paid, because of the facts relied on by the magistrate. It was those identified facts as found, in combination, which constituted the existence of circumstances that were exceptional (ie out of the ordinary or unusual). In other words, the existence of exceptional circumstances was found in the combination of the facts identified by the magistrate - namely that: (1) Dulux had been put to the expense of employing Dr Zurhaar as expert; (2) Mr Chapple's expert, Mr Booth, did not have the necessary expertise; (3) Mr Chapple had adopted an untenable position in support of his claim; (4) in contrast, Dulux had engaged an expert, Dr Zurhaar, whose evidence was 'pivotal' in the determination of the claim.
9. The Commissioner rejected that understanding of the magistrate's reasons on the basis that it was difficult to see which of the circumstances, if any, were exceptional - stating that all appeared to be the type of circumstance that might arise in an ordinary case.[49]
10. Two things may be said in relation to that aspect of the Commissioner's decision. First, the magistrate relied on the identified facts in combination as constituting the existence of exceptional circumstances. The magistrate did not rely on the identified facts separately. Accordingly, insofar as this was part of the Commissioner's consideration of the magistrate's reasons, the Commissioner mistook the substance of the magistrate's reasons. Second, in approaching the issue in this way the Commissioner came perilously close to identifying error by considering the merits of the magistrate's decision rather than evaluating whether the magistrate had exposed his essential pathway of reasoning.
11. Properly understood, however, we consider that the Commissioner was not examining the merits of the magistrate's costs determination. Instead the Commissioner was testing his understanding of whether the reasons given by the magistrate revealed why the relevant circumstances were exceptional - the Commissioner was testing whether the facts as identified by the magistrate provided the 'why'. But in doing so the Commissioner did not consider the matter from the correct perspective.
12. The admission of competing expert evidence, with one side's expert evidence proving decisive to the determination of the claim, might well be ordinary or usual - and thus not exceptional - in many commercial cases in a superior court involving an amount in issue which is considerably more than the $10,000 jurisdictional limit of a minor case. But this was a minor case in the Magistrates Court subject to the minor cases procedure under the Magistrates Court (Minor Cases Procedure) Rules - a kind of case in which the Magistrates Court's primary object is to attempt to bring the parties to an acceptable settlement.[50] Otherwise, in dealing with a minor case, the Magistrates Court is to act with as little formality as it thinks reasonable.[51] In dealing with a minor case the Magistrates Court is not bound by rules or practice as to evidence.[52] It is therefore unsurprising that the minor cases procedure makes no provision for expert evidence. In any case the use of expert evidence is likely to be disproportionate to the jurisdictional limit of a minor case. Such a procedure is antithetical to the speedy, informal and inexpensive process for the resolution of minor cases that is contemplated by pt 4 of the Magistrates Court (Civil Proceedings) Act.
13. When this is understood, and due regard is had to the circumstances of the litigation between Mr Chapple and Dulux as were identified and relied on by the magistrate in his reasons on the costs determination, it was plainly open to the magistrate to find the existence of exceptional circumstances for the purpose of s 31(3)(a) of the Magistrates Court (Civil Proceedings) Act.
14. Our conclusion that the magistrate's finding of exceptional circumstances was open, as a matter of law, is, of course, not the immediate question, which is whether the reasons were adequate. Nor is that conclusion determinative of that question. In other words, our conclusion that the finding was open is not to find that there are adequate reasons due to the merits of the magistrate's conclusion. It is no more than one means to test the correctness of our understanding of the magistrate's reasons. If the magistrate's conclusion was not open on a given understanding of the magistrate's reasons then that would tend against adoption of that understanding of the reasons. In that sense, the circumstance that the magistrate's conclusion was open on our understanding of the magistrate's reasons tends to reinforce that we have correctly understood the effect of the magistrate's reasons.
15. On our reading of the reasons, the magistrate's reasons are implicitly premised on, and involve, a comparison of the facts he identified and relied on in arriving at the costs determination with the circumstances of the ordinary or usual minor case in the Magistrates Court determined according to the minor cases procedure. Such a comparison is inherent in the notion of exceptional. In this respect it may be inferred from the magistrate's reasons that he considered such a comparison in coming to his decision on Dulux's application for costs. In referring to the incidents of the litigation between Mr Chapple and Dulux, in the context of whether exceptional circumstances existed whereby an injustice would be done to Dulux as the successful party if there was no order for payment of its costs, the magistrate plainly had in mind the differences between the instant case and the ordinary or usual minor case - something with which the magistrate was undoubtedly very familiar.
16. The magistrate's reasons could have been phrased more expansively. The magistrate could have expressly stated that he was satisfied of the existence of exceptional circumstances because of the facts he identified and relied on - and in particular that he reached that conclusion by comparing those identified circumstances with the circumstances of the ordinary or usual minor case in the Magistrates Court determined according to the minor cases procedure. But in delivering reasons on a costs determination in a minor case the magistrate was not required to produce structured written reasons as might have been appropriate in a superior court. The essential requirements in s 31 of the Magistrates Court Act were met. The apparent infelicities in the provision of the magistrate's oral reasons, and the economy with which the magistrate conveyed the central tenet of his conclusion as to Dulux's application for reimbursement of its expert's costs, does not mean that the reasons are legally inadequate. The magistrate's approach was consistent with the requirement to give reasons by a judicial officer in a busy summary court such as the Magistrates Court. That is all the more so where the judicial officer was dealing with an application for costs in a minor case.
17. Read in context and fairly as a whole, the magistrate's reasons disclose the essential intellectual process which resulted in the costs determination. The magistrate was satisfied that the facts as identified amounted to the existence of exceptional circumstances enlivening the power under s 31(3)(a) of the Magistrates Court (Civil Proceedings) Act. The basis for decision is described with sufficient certainty to enable Mr Chapple to know why it is that the result as to costs ensued and to ensure that the statutory right of appeal has been secured - that is all the more given the limited right of appeal available in the circumstances.
18. For these reasons the Commissioner erred in law, in our respectful view, in concluding that the magistrate did not provide adequate reasons when making the costs orders. The magistrate's reasons, albeit brief, were legally adequate. Ground 1 succeeds.
19. It then becomes unnecessary to consider the other strands of argument advanced by Dulux in support of ground 1. It should, however, be evident from what we have said that the Commissioner was in error, in our respectful view, in concluding (at [158] of the primary reasons) that Mr Chapple was denied an opportunity to present his case in response to unspecified relevant facts that made the circumstances exceptional. The magistrate's reasons identified the circumstances on which he relied. Those circumstances were raised in the argument as to whether a costs order should be made in favour of Dulux.[53] Mr Chapple was provided with a fulsome opportunity to present his case in response to those considerations.

Disposition - Ground 2: the costs order made by the District Court

1. Ground 2 challenged the costs order made in the District Court. Dulux's success on ground 1 means that the costs order made in the District Court must be set aside in any event. There is no need to address ground 2. We decline to do so given the nature of the issues advanced by ground 2 - Dulux advanced no more than a series of alleged discretionary errors in relation to the exercise of a costs disposition. An appeal on such a matter of practice and procedure would require leave if the costs orders had been made by a judge or master of the Supreme Court. It is anomalous that there is an appeal as of right against such an order if made in the District Court.

1. The appeal must be allowed. The orders made in the District Court must be set aside. We would make formal orders to the effect that:
   1. The appeal is allowed.
   2. The orders of the District Court made 12 August 2022 in proceedings APP/89/2021 are set aside and in lieu thereof it is ordered that:

(a) The appeal against the orders of the Magistrates Court at Fremantle made 16 November 2021 in proceedings FR/Minor/843/2020 is dismissed.

2. We would hear from the parties as to the costs of the appeal in the District Court and the costs of this appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Chapple v DuluxGroup (Australia) Pty Ltd [2022] WADC 73 (primary reasons).

[3] Magistrates Court (Civil Proceedings) Act s 43(5).

[4] See: Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA) r 23 (see also r 4(a), (e)); Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA) r 3.1.

[5] No criticism of the parties' legal representatives is intended by this observation. Dulux raised s 43(3) of the Magistrates Court (Civil Proceedings) Act at a directions hearing in the District Court. It appears that the response then received dissuaded the parties' legal representatives from raising the point in this court: Appeal ts 4, 13 - 17.

[6] Primary reasons [1], [5] - [37].

[11] Primary reasons [157] - [158].

[12] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [34]; Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [103(g)].

[13] Magistrates Court (Civil Proceedings) Act s 26.

[14] Magistrates Court (Minor Cases Procedure) Rules r 5.

[15] Magistrates Court (Civil Proceedings) Rules r 72.

[16] Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [54].

[17] Magistrates Court (Civil Proceedings) Act s 31(1).

[19] Referring to primary reasons [154], [157].

[20] Referring to primary reasons [154], [157].

[21] Referring to primary reasons [157].

[22] Referring to primary reasons [158].

[23] Appeal ts 7; Appellant's submissions pars 18 - 20.

[24] Appeal ts 6- 9; Appellant's submissions pars 22 - 23.

[25] Appellant's submissions pars 24 - 27.

[26] Appeal ts 9 - 11 (referring to Primary reasons [158]).

[27] Appeal ts 19 - 23, 26; Respondent's submissions pars 17 - 18.

[28] Appeal ts 24 - 26; Respondent's submissions pars 19 - 20.

[29] Appeal ts 17 - 18; Respondent's submissions pars 30, 33.

[30] Primary reasons [127] - [129].

[35] Primary reasons [150], [157]. See also [158].

[36] What follows at [46] - [48] below is drawn from Player v Avery [2022] WASCA 147 [101] - [103].

[37] Browne v Browne [2019] WASCA 1 [80], [86]; Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 [182]; Pave Wealth Services Pty Ltd v Jones [2021] WASCA 7 [121]; L v P [2022] WASCA 40 [101].

[38] Browne v Browne [80]. See also: Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112]; Wilson v Arwon Finance Pty Ltd [181]; L v P [100]; Greenslade v Hiew [2022] WASCA 47 [42].

[39] Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 [56]; DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 [32].

[40] Rankilor v Circuit Travel Pty Ltd [1], [58].

[41] Panegyres v Medical Board of Australia [2020] WASCA 58 [327].

[42] Strahan v Brennan [2014] WASC 190.

[43] Strahan v Brennan [88] - [92].

[44] Mount Lawley Pty Ltd v Western Australian Planning Commission [26].

[45] Tran v Claydon [2003] WASCA 318 [36]. To similar effect see Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [73] (referring to Frichot v Zalmstra (Unreported, FCSCWA, Library No 981291, 13 May 1998), 14 (Owen J)).

[46] Minister for Immigration v AAM17 [2021] HCA 6; (2021) 272 CLR 329 [22] - [25].

[47] Minister for Immigration v AAM17 [25]. See also Wainohu v New South Wales [54].

[50] Magistrates Court (Civil Proceedings) Act s 27(1).

[51] Magistrates Court (Civil Proceedings) Act s 29(3).

[52] Magistrates Court (Civil Proceedings) Act s 29(4).