Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : RE MR P G COCKRAM; EX PARTE TEY [2012] WASC 248

Appeal - Whether breach of requirements of procedural fairness - Whether additional submissions would have made any difference to outcome

Lourey v Legal Profession Complaints Committee [2012] WASCA 112

Re Mr P G Cockram; Ex parte Tey [2012] WASC 248

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Tey v Optima Financial Group Pty Ltd [2010] WASCA 219

Tey v Optima Financial Group Pty Ltd [2011] HCASL 41 (5 April 2011)

1 REASONS OF THE COURT: The appellant appeals against the decision of McKechnie J who dismissed the application by the appellant for a review order under s 36 of the Magistrates Court Act 2004 (WA) in relation to the decision of a magistrate dated 2 July 2009. The decision of the magistrate upheld the claim by Optima Financial Group Pty Ltd that the appellant pay $550. The appellant appealed against that order. It was dismissed by the District Court. The appellant appealed to this court. That appeal was dismissed. See Tey v Optima Financial Group Pty Ltd [2010] WASCA 219. The appellant applied for special leave to appeal to the High Court against this court's decision. That application was dismissed. See Tey v Optima Financial Group Pty Ltd [2011] HCASL 41 (5 April 2011).

2 The appellant has also challenged costs and other orders relating to these appeals. The result is that the appellant has been ordered to pay an amount which is now well over $35,000 by way of costs incurred by the other side. (The appellant claimed from the bar table that the proceedings have so far cost her $75,000.)

3 The appellant at some stage came across s 36 of the Magistrates Court Act and so after the appeal process referred to above had come to an end, the appellant began proceedings seeking a review of the magistrate's decision. The application by way of notice of originating motion was commenced in the General Division of the Supreme Court. The appellant's notice of originating motion was dismissed by McKechnie J on 4 July 2012. See Re Mr P G Cockram; Ex parte Tey [2012] WASC 248. The appellant now appeals that decision.

4 The appellant was issued with a registrar's notice to attend to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal had any reasonable prospect of succeeding. The registrar's notice clearly listed the purpose of the hearing. The appellant filed submissions and an affidavit in support of her appeal late on the afternoon prior to the hearing and was given the opportunity to provide further oral submissions at the hearing.

5 There are eight grounds of appeal, but they raise only two points. One is that the appellant was denied procedural fairness by McKechnie J, and the other is that she is 'aggrieved' by the magistrate's decision and should have a rehearing.

6 The allegation of breach of procedural fairness is based on the fact that the matter was listed for a directions hearing before McKechnie J, and that the appellant did not know that she would have to make submissions as to why the proceeding should not be dismissed. The letter advising her that the matter had been listed for hearing before McKechnie J only stated that the matter was listed for 'directions'.

7 In-person litigants with unmeritorious claims are appearing with increasing frequency in the courts. If a prima facie assessment leads a court to a view that the proceedings should be dismissed summarily on the basis that there is no reasonable prospect of succeeding, or on the basis that the grant of discretionary relief should be refused, or on the basis that the proceedings are an abuse of process, the appellant should be given the opportunity on proper notice to make submissions about why the proceedings should not be summarily dismissed.

8 That did not happen in this case. The appellant was summonsed to court for a directions hearing. She was then invited to make oral submissions about why the proceedings should not be dismissed. The appellant asked for an adjournment to put in written submissions, but that request was refused. The appellant was not given a fair opportunity to prepare what she wished to say

9 If there were something of merit that could have been said by the appellant in opposition to McKechnie J's proposition that the proceedings should be summarily dismissed, the order dismissing the notice of originating motion would have been set aside.

10 However, as the High Court has said, not every departure from the rules of natural justice will entitle the aggrieved party to a new hearing: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145. The High Court gave an illustration which is apposite. The court said that:

if all that happened ... was that a party was denied the opportunity of making submissions ... when, in the opinion of the appellate court the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new [hearing] (145).

The High Court said at 145 that the question is: 'Would further information possibly have made any difference?'. See also Lourey v Legal Profession Complaints Committee [2012] WASCA 112.

11 This court asked the appellant to make the submissions which might have been made had an adjournment been granted and written submissions prepared and filed. The appellant referred to a letter she sent to the Court of Appeal dated 28 February 2013. She also handed up written submissions which she lodged at the Court of Appeal registry late on the afternoon before the hearing, and she made oral submissions. Neither of the documents, nor any of the oral submissions, made points which would have led or would lead to the making of any different order. Thus, the grounds of appeal alleging a denial of procedural fairness will not result in the order of McKechnie J being set aside.

12 The appellant also has grounds of appeal asserting that she was aggrieved by the magistrate's order. The mere fact that the appellant says she is aggrieved by the decision affords no basis for setting aside the magistrate's decision and no basis for setting aside McKechnie J's decision. The grounds do not identify any error in McKechnie J's reasons.

13 McKechnie J said that the application for review should be refused on strong discretionary grounds. McKechnie J referred to the length of time between the decision and the application for review which had not been explained, the history of the proceedings, including the decisions of the District Court and the Court of Appeal, and the disproportion of costs compared with the subject matter. They were good reasons for dismissing the appellant's application.

14 None of the grounds of appeal has any reasonable prospect of succeeding in the sense that no ground has any prospect of establishing that the order dismissing the proceedings should be set aside. The grounds alleging that there was a breach of the requirements of procedural fairness have merit in the sense that the appellant was, in the circumstances, not afforded procedural fairness, but it would be futile to set aside McKechnie J's order and give the appellant the opportunity to make further submissions which would not alter the outcome.

15 The appellant also said that she wished to obtain legal advice about a possible reformulation of the grounds of appeal. Insofar as that amounted to an application for an adjournment, the application should be dismissed. The appellant has had since July 2012 to obtain legal advice.