Citation : HO -v- LONERAGAN [2011] WADC 133

Practice and procedure - Magistrates Court - Judgment after trial sent to parties by post - Delivery of judgment part of proceedings - Proceedings required to be conducted in open court - Magistrates Court (Civil Proceedings) Act 2004 (WA), s 45 - Failure to comply with s 45 - Judgment liable to be set aside - Judgment effective until set aside

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 45

Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Daubney v Cooper [1829] EngR 48; (1829) 10 B & C 237; (1829) 109 ER 438

Dickason v Dickason [1913] HCA 77; (1913) 17 CLR 50

Ho v Loneragan [2011] WADC 133

Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506

Jackson v Chrisp [2012] WASCA 158

Lednar v The Magistrates' Court [2000] VSC 549

McPherson v McPherson [1936] AC 177

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369

Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435

R v Casey; Ex parte Lodge [1887] VicLawRp 9; (1887) 13 VLR 37

R v Denbigh Justices; Ex parte Williams [1974] QB 759

Revell v Blake (1873) LR 8 CP 533

Russell v Russell [1976] HCA 23; (1976) 134 CLR 495

Scott v Bennett (1871) LR 5 HL 234

Scott v Scott [1913] AC 417

Seapack Melbourne Pty Ltd v Clerk of Courts, Magistrates' Court, Yarram (Unreported, VSC, 12 June 1990)

Wandin Springs v Wagner [1991] VicRp 85; [1991] 2 VR 496

1 JUDGMENT OF THE COURT: This is an appeal from a decision of Curthoys DCJ in the District Court dismissing an appeal by the appellants against a judgment of Magistrate Boon in the Magistrates Court on the basis that the appeal was out of time: Ho v Loneragan [2011] WADC 133.

2 The primary judge found that the appeal was out of time as it was lodged 24 days after the date of the judgment, albeit only 17 days after it was received by the appellants in the post. The appeal was required to be lodged within 21 days after the date of the judgment.

3 The primary judge rejected an argument by the appellants that the time for lodging the appeal ran from the time the judgment was received by the appellants. The appeal raises, however, an important question about the effect of what we were told in argument is a common practice in cases in the Magistrates Court of posting the judgment to the parties rather than delivering it in open court.

4 In January 2008, the appellants agreed to purchase a pharmacy from the respondent. The agreement was in writing. It provided that the sale was to be completed on 31 March 2008 (which was later amended to 30 April 2008) and the balance of the purchase price was to be paid on that date. The sale was not in fact completed until 27 June 2008.

5 The respondent bought proceedings against the appellants in the Magistrates Court claiming the sum of $30,077 by way of interest for the delay in settlement. The appellants denied that interest was payable, contending that the respondent was responsible for the delay in settlement and, further, that the respondent was estopped from claiming interest.

6 The trial was heard by Magistrate Boon. Her Honour reserved her decision. Subsequently her Honour prepared written reasons for decision in which she concluded that the respondent was entitled to recover the amount of $30,077 claimed. Her Honour did not, however, deliver judgment in open court. Instead, the parties were sent by post a document containing the orders constituting the judgment and her Honour's reasons for that judgment.

7 The appellants' solicitors received the judgment, which was dated 10 August 2010, in the post on 17 August 2010. The terms of the judgment were as follows:

It is ordered that the [appellants] pay the [respondent]:

1. the sum of $30,077.00, plus
2. interest thereon at the rate of 6 per cent per annum pursuant to section 12 of the Magistrates Court (Civil Proceedings) Act from 6 October 2008, plus
3. costs to be assessed if not agreed.

8 The appellants wished to appeal against the magistrate's decision. Under s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act), an appeal from the Magistrates Court lies to the District Court. Such an appeal must be commenced 'within 21 days after the date of judgment': s 40(3)(a). To the same effect, r 51 (now see r 51A) of the District Court Rules 2005 (WA) provides that a notice of appeal must be filed and served 'within 21 days after the date of the appealable decision'.

9 The appeal notice was filed by the appellants on 3 September 2010, 24 days after the date of the judgment and 17 days after the appellants received the judgment in the post.

10 The appellants' solicitors recognised that the appeal was more than 21 days after the date on the judgment, and included in the appeal notice an application for 'leave to be granted for an extension of time for the appellants to file and serve the notice of appeal by 3 September 2010' (BAB 12).

11 The appeal came before the primary judge on 12 August 2011.

12 The primary judge noted that there was a threshold question as to whether the appeal was out of time.

13 The appellants argued that it was not but, if it was, that the court had a discretion to extend time and should do so. In support of the contention that the appeal was not out of time, the appellants submitted first, that 'the date of judgment' under s 40(3)(a) of the MCCP Act was the date of service, or notification, of the judgment to the parties. The primary judge rejected that argument, concluding that if that had been intended it would have been expressly provided for in s 40.

14 Secondly, the appellants argued that by reason of the Civil Judgments Enforcement Act 2004 (WA), as the judgment was posted on 10 August 2010 it was effectively given on 12 August 2010. That argument was based on the provision in s 11(a) of that Act that a judgment has effect 'at the time it is given', and the provision in r 87 and r 92 of the Civil Judgments Enforcement Regulations 2005 (WA) that a document served or given by post is taken to be served or given two business days after the day it was posted. His Honour found there was no substance in that argument.

15 Thirdly, it was contended that no valid judgment had been given because the magistrate had not appointed a time and place to deliver judgment. The primary judge rejected that submission, simply observing that if there were no valid judgment there would be nothing to appeal against and the appeal would be incompetent [9].

16 In the alternative, the appellants argued that if the judge found the date of judgment was 10 August 2010, the court had a discretion to grant an extension of time. His Honour found that the District Court had no such discretion.

17 The primary judge did not go on to consider the grounds of appeal. He concluded that judgment was given on 10 August 2010 and the appeal was therefore out of time. Accordingly, he dismissed the appeal.

19 We should interpose that following the hearing of the appeal to the primary judge, but before his Honour had delivered his decision, the appellants made an application in the Magistrates Court, pursuant to the 'slip rule' in s 23 of the Magistrates Court Act 2004 (WA), seeking to have the date on the judgment amended to 17 August 2010 (GAB 453). This application was heard on 26 August 2011. Although the outcome is not referred to in the appeal papers, it must have been dismissed.

20 It is unnecessary to set out the grounds of appeal. By the first ground, the appellants contended that the primary judge should have found that the 'date of judgment' under s 40(3) of the MCCP Act was 17 August 2010, when the judgment was received by the appellants' solicitors.

21 A second ground of appeal was added on the hearing of the appeal, without objection by the respondent. It followed a letter from the court on 17 October 2012, requesting that counsel be in a position to address the effect of s 45 of the MCCP Act, which requires proceedings to be conducted in open court. That ground of appeal was as follows:

The primary judge erred in law in holding at [3] of the reasons that a judgment was handed down on 10 August 2010 when he should have held that the judgment was voidable (and had been avoided) as the appellants had contended that there had not been a judgment (as appears from [9] of the primary reasons) as the judgment had only been posted to the parties and not in open court as required by s 45(1) of the Magistrates Court (Civil Proceedings) Act 2004.

22 Prior to the hearing of the appeal, the appellants abandoned a ground of appeal challenging the primary judge's finding that the court had no discretion to extend the time to appeal. The appellants did so in light of the decision of this court in Jackson v Chrisp [2012] WASCA 158 [128], in which it was held that there is no such discretion.

23 It is convenient to start with the second ground of appeal. The appellants' contention on the appeal to the District Court was that the judgment was void and of no effect because the magistrate had not set a time or place to pronounce it orally. It is implicit in the manner in which the primary judge dealt with the appeal that his Honour found that there was a valid, extant judgment.

24 On the appeal to this court, the appellants put the point a little differently, contending first, that the judgment was voidable and secondly, that it had been avoided by the appellants with the result that it had no effect. In our view, the first part of that proposition is correct, but the second is not. The failure to deliver the judgment in open court rendered the judgment liable to be set aside, but unless and until it is set aside the judgment has effect according to its terms. There has been no application by the appellants to set it aside.

25 The starting point is s 45(1) of the MCCP Act, which provides:

All proceedings in the Court's civil jurisdiction are to be conducted in open court unless this Act, the rules of court or another written law provides otherwise.

26 'Proceedings' is not defined. It is clear, however, that giving judgment is part of judicial proceedings. As Griffith CJ said in Melville v Phillips (1899) 9 QLJ 114, 'pronouncing judgment upon a trial is a judicial proceeding - perhaps the most important part of the judicial proceeding' (116).

27 Section 45 of the MCCP Act reflects the long-standing position at common law that, apart from the exceptional case where the proper administration of justice requires otherwise, judicial proceedings must be conducted in open court. It is the ordinary rule of all courts that their proceedings shall be conducted 'publicly and in open view': Scott v Scott [1913] AC 417, 441, cited with approval in Russell v Russell [1976] HCA 23; (1976) 134 CLR 495, 520, 532; Dickason v Dickason [1913] HCA 77; (1913) 17 CLR 50, 51; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20]. In an oft-cited passage, Bayley J, speaking for the Court of Kings Bench in Daubney v Cooper [1829] EngR 48; (1829) 10 B & C 237; (1829) 109 ER 438, 440, described it as 'one of the essential qualities of a Court of Justice that its proceedings should be in public'. In R v Denbigh Justices; Ex parte Williams [1974] QB 759, 764, Lord Widgery said that it is an 'absolutely fundamental principle of the administration of justice.'

28 It follows from s 45 that unless permitted by the MCCP Act or some other written law, the magistrate was bound to deliver judgment in open court. There is nothing in the MCCP Act, the rules of the Magistrates Court or any other written law which empowered the Magistrates Court in this case to conduct the proceedings, including delivering judgment, other than in open court. (We note in passing that the requirement that proceedings be conducted in open court does not apply to a minor case (as defined in s 26): see s 29 of the MCCP Act; but this case was not a minor case.)

29 The respondent's submission that s 13, s 15 and s 16(t) of the MCCP Act permitted the course that was taken, cannot be accepted. Section 13 is a general provision which requires the Magistrates Court to ensure that cases are dealt with justly by ensuring, among other things, they are dealt with efficiently, economically and expeditiously. The requirements of efficiency, economy and expedition are not inconsistent with the need to conduct proceedings in open court, and the general requirement to ensure that cases are dealt with justly would ordinarily make it necessary that that be done. Section 15 allows the court in certain circumstances to make an order on its own initiative without hearing the parties. That clearly has no application to final orders made after the trial of an action. Section 16(t) enables the court to make any order for the purpose of complying with s 13. That also can have no application.

30 It was not, therefore, open to the magistrate to give judgment by posting the orders and her reasons to the parties. Her Honour was required to give judgment in open court. We should say that it was accepted by both parties that what was sent to them constituted a judgment of the court.

31 While the requirement to conduct proceedings in open court is expressly provided for by s 45 of the MCCP Act, the legislature has not, however, prescribed the consequences of a failure to do so. It is to that question it is necessary then to turn.

32 It has long been held that a judicial order of a superior court, even if made in excess of jurisdiction, is at most voidable and has effect unless and until it is set aside: Scott v Bennett (1871) LR 5 HL 234, 245; Revell v Blake (1873) LR 8 CP 533, 544; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 590 - 591; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [151]. The position in relation to inferior courts or tribunals, however, is different. In Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, Dixon J, referring to proceedings in a Court of Petty Sessions, emphasised:

[T]he clear distinction [which] must be maintained between want of jurisdiction and the manner of its exercise. Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend to the exercise of jurisdiction or govern the determination to be made, the judgment or order may be set aside and avoided by proceedings by way of error, certiorari, or appeal. But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable (389).

33 In Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342, a question arose as to the effect of the contravention of an order of a magistrates court prohibiting the publication of anything identifying the alleged victim of a sexual assault. It was held that the court had no power to make such an order. McHugh JA (with whom Hope JA agreed) held that the order was of no effect and could not found a prosecution for contempt. He said:

If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if an order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed (357D).

34 His Honour's statement was applied in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323, 335C, in respect of an order of the District Court of New South Wales prohibiting the broadcasting of certain material in relation to a pending criminal trial, it being held that the District Court had no power to make an order of that sort and that the order was therefore a complete nullity, binding no-one. It was subsequently quoted with approval and applied by the High Court in Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [27], [55] (Gaudron, Gummow and Callinan JJ).

35 While those cases concerned the effect of non-publication orders, the principle is applicable in the present case. In that connection, it is not in doubt that the Magistrates Court had power to make orders of the sort made and that the court's jurisdiction had properly been invoked. What occurred was an irregularity in the manner in which the orders were made; that is, in the exercise of the jurisdiction. The consequence is that the orders made by the magistrate are effective unless and until set aside.

36 That is consistent, too, with the decision of the Privy Council in McPherson v McPherson [1936] AC 177. That case concerned the effect at common law of a failure to conduct proceedings in open court. There a divorce action had been heard in the judges' law library in the court building. On the outer door of the law library was a brass plate on which was endorsed the word 'Private'. At the conclusion of the hearing, the judge made a decree nisi which was subsequently made absolute. The Privy Council found that by hearing the action in the library the court had unintentionally but effectively (and wrongly) excluded the public from the hearing. The appellant submitted that the effect of the irregularity was to render null and void the decrees nisi and absolute. That submission was rejected. Lord Blanesburgh, delivering the judgment of the Privy Council, observed that it was not a case where the decree nisi had been pronounced after a travesty of a judicial proceeding. His Lordship said:

Here their Lordships are dealing with a decree pronounced after a serious trial free from every other defect in procedure, and one entered and remaining on the court files as regular in every respect. To say that such a decree is void would seem to be out of the question. If the law were so to treat it, the remedy would be far worse than the disease it was designed to cure. To say that it is voidable states a result which, their Lordships think, entirely meets the case (203 - 204).

37 The decision in McPherson has been applied in a case where the court was required, by a provision in similar terms to s 45 of the MCCP Act, to conduct proceedings in open court. In Lednar v The Magistrates' Court [2000] VSC 549, orders that each of the three applicants provide a DNA sample were obtained in the Magistrates Court without notice to the applicants and in chambers which were not open to the public. Section 125 of the Magistrates Court Act 1989 (Vic) was in all material respects in the same terms as s 45 of the MCCP Act. Gillard J found that while the Magistrates Court undoubtedly had power to make an order of the kind in question, the orders had been made in breach of the requirement in s 125 that all proceedings be conducted in open court. His Honour expressly applied the reasoning in McPherson to conclude that the orders were voidable, rather than void. Gillard J went on to find that each of the applicants was entitled to have the order against him quashed, even though two of the applicants had already provided samples. His Honour held that by doing so they had not lost their right to have the orders quashed as the court had power to order that the samples be delivered up to be destroyed.

38 A different approach appears to have been taken in the earlier case of R v Casey; Ex parte Lodge [1887] VicLawRp 9; (1887) 13 VLR 37, where the Full Court of Victoria concluded that the failure in that case to give judgment in open court had the result that it was 'not a judgment at all' and everything done under it was void. However, the reasons are extremely brief and there is no explanation of the reasoning which led the court to that view.

39 In Melville v Phillips, the court described a judgment not given in open court as ultra vires, but said (at 116) that if it was accepted by the parties probably no objection could be taken to it afterwards.

40 It is also necessary to refer to two decisions at first instance which were touched upon in the course of argument on the appeal. In Seapack Melbourne Pty Ltd v Clerk of Courts, Magistrates' Court, Yarram (Unreported, VSC, 12 June 1990), the magistrate had delivered judgment by sending it to the clerk of courts who posted a copy to the parties and entered the judgment on the court register. Fullagar J held that as the delivery of judgment was otherwise than in open court it was ultra vires. His Honour referred in that context to, among other cases, Melville v Phillips. He ordered that the judgment be deleted from the register and that the magistrate deliver it in open court. We do not, however, understand his Honour to have concluded that the judgment was a nullity, as opposed to voidable.

41 On the other hand, in Wandin Springs v Wagner [1991] VicRp 85; [1991] 2 VR 496, in similar circumstances McDonald J appears to have concluded that a judgment which the magistrate had sent to the parties by post was a nullity. Having described the posting of the judgment as ultra vires, his Honour went on to say that it 'constitute[d] no determination of or judgment in the action' (499). He ordered that the judgment be removed from the register and, as the magistrate had since retired, that the action be reheard. There was, however, no reference by his Honour to McPherson or Mayas. In our respectful view, the finding that a judgment delivered otherwise than in open court has no effect is contrary to authority and we would not follow it. Similarly, to the extent Ex parte Lodge is authority for such a proposition we do not think it is correct and we would not follow it.

42 In our view, it could not have been intended that any failure to comply with s 45 of the MCCP Act has the effect that the proceedings are of no effect. As the Privy Council aptly put it in McPherson, if that were the case the remedy would be far worse than the disease. In the present case, the failure of the magistrate to give judgment in open court does not mean that the judgment has no effect. In our opinion, her Honour's judgment has effect unless and until it is set aside.

43 Whether it is still open to the appellants to seek to have it set aside was a matter of some tentative debate on the appeal. Counsel for the respondent contended that it was now too late for the appellants to do so. Counsel for the appellants contended it was still open. That, however, is not a matter for this court. It is a matter which can only fall for consideration upon a properly constituted application for such relief brought by the appellants in the appropriate forum. But until it is set aside the judgment has effect, as the primary judge implicitly found.

44 The first ground of appeal can be dealt with quite shortly. As we have said, the MCCP Act makes no provision for circumstances in which judgment is given otherwise than in accordance with s 45 and there is nothing contained in the MCCP Act or the Civil Judgments Enforcement Act upon which it might be found that the date upon which judgment was given was other than the date it bears, 10 August 2010. And as the court pointed out in argument, if, as contended by the appellants, it were the date upon which it was received by the parties in the mail that would lead to very odd consequences if different parties received it on different days. It follows that, as matters stand, the primary judge correctly found that the appeal was out of time and the District Court had no jurisdiction to hear it.