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[2015] WASCA 10
General information, not legal advice.
Court of Appeal (WA)
2015-01-16
Newnes JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : NINAN -v- NATIONAL AUSTRALIA BANK [2015] WASCA 10
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Citation : NINAN -v- NATIONAL AUSTRALIA BANK [2014] WADC 128
Appellant to show cause why appeal should not be dismissed - Whether grounds of appeal has any reasonable prospect of success - Challenge to interlocutory decisions of registrar - Refusal by registrar to accept appellants' affidavit for filing - Whether affidavit scandalous - Whether any error by registrar
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Application to review registrar's decisions dismissed
Ninan v National Bank of Australia [2014] WADC 128
1 This matter came before the court on 3 December 2014 by way of an amended registrar's notice to attend dated 25 November 2014, to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), and to consider an application by the appellant challenging certain interlocutory decisions of the registrar of this court. The appellant is in Bangkok and appeared by telephone link.
2 The appeal arises out of a decision of Martino CJDC on 18 September 2014 in relation to an appeal brought by the appellant against a decision of a magistrate on 13 June 2014. The appellant had issued proceedings in the Magistrates Court 'minor claims' jurisdiction against the National Australia Bank (bank). On 13 June 2014, the magistrate allowed an application by the bank to strike out the claim and dismissed the appellant's claim. The appellant appealed from that decision to Martino CJDC, and his Honour dismissed the appeal for two reasons. First, each of the grounds of appeal was struck out for having no reasonable prospect of success. Secondly, his Honour was satisfied that none of the grounds had been made out and the appeal should be dismissed.
3 All references below to paragraph numbers are references to paragraph numbers in Martino CJDC's reasons: Ninan v National Bank of Australia [2014] WADC 128.
Procedural background in relation to the appeal
4 On 8 October 2014, the appellant filed an appeal notice. The respondent filed a notice of intention on 15 October 2014. On 10 November 2014, the appellant's case was filed. On 20 November 2014, the registrar issued a notice to attend on 3 December 2014, to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Court of Appeal Rules, on the basis that none of the grounds has a reasonable prospect of succeeding.
5 On 21 November 2014, the appellant applied for a 'review of registrar's decisions', and filed an affidavit in support. The decisions in question concerned the listing of the matter for hearing on 3 December 2014, and the earlier refusal of the registrar to accept an affidavit of the appellant, sworn on 5 November 2014, for filing. The appellant sought orders that this affidavit be filed, and that the 3 December 2014 hearing be vacated, or be rescheduled to a date 10 days after confirmation of the filing of the affidavit.
6 On 25 November 2014, an amended registrar's notice to attend was issued to include the appellant's application dated 21 November 2014.
7 For present purposes, it is relevant to note the following in relation to the proceedings in the Magistrates Court:
For a summary of the magistrate's reasons see [24] - [28].
8 On 3 July 2014, the appellant filed an appeal notice in the District Court appealing the decision of the magistrate to strike out the appellant's case statement [1]. The grounds of appeal were as follows:
9 On 9 July 2014, the bank filed a notice of intention to take part in the appeal. In addition to its contention that the magistrate's decision should be upheld on the grounds relied upon by the learned magistrate, the bank also sought the following orders [3]:
10 The strike-out application was listed before Martino CJDC on 1 September 2014, with the appellant appearing via audio link from Bangkok, Thailand. During this hearing, both parties agreed that Martino CJDC should hear both the strike-out application and the appeal itself [12] - [15].
11 Martino CJDC first dealt with the question of whether there was a right to appeal and whether the District Court had power to strike out an appeal. His Honour found that, by virtue of s 32 and s 40 of the Magistrates Court (Civil Proceedings) Act, an appeal from a minor case is limited to an appeal on grounds pursuant to s 32(3), and that pt 7 applies to the appeal [19]. Section 32(3) provides that an appeal must be on the following grounds:
(i) was not within the jurisdiction of the Court; or
(ii) was not a minor case;
12 In addition, his Honour found that as an appeal from a minor case was subject to pt 7 of the Magistrates Court (Civil Proceedings) Act, s 43 of that Act applied and the court thereby had the power to strike out an appeal [20]. Further, and in any event, his Honour said the court could strike out an appeal in a minor case which was an abuse of process, pursuant to its incidental powers that are necessary for the exercise of its jurisdiction [21].
13 His Honour then went through each ground of appeal and found none was established. His Honour said:
Ground 1(a)
Whether or not the learned magistrate and the lawyer for National Australia Bank said during the hearing that there was no provision to strike out a minor claim is not relevant to whether or not the court had jurisdiction to strike out the claim. Section 33(b) of the Magistrates Court (Civil Proceedings) Act 2004 provides that Rules of Court made for the purposes of minor cases may specify the circumstances in which any of the court's powers in Part 3 may be exercised. One of the court's powers in Part 3 is the power to strike out a claim, which is granted by s 17. Rule 6A of the Magistrates Court (Minor Cases Procedure) Rules 2005 provides that the court's powers in Part 3 of the Act, except s 14, s 18 and s 25, may be exercised by the court in every circumstance. The learned magistrate was correct to conclude that she had jurisdiction to hear and determine the application to strike out Mr Ninan's claim. This ground of appeal fails.
Ground 1(b)
Her Honour did not make any order for the transfer of land. Her Honour's orders granted leave for a legal practitioner to appear for the National Australia Bank, struck out Mr Ninan' case statement, entered judgment in favour of the National Australia Bank without a trial and dismissed the remainder of the application. This ground of appeal fails.
Ground 1(c)
The fact that the value of the property was greater than the jurisdiction of the Magistrates Court jurisdiction does not mean that the court does not have jurisdiction to decide to strike out a case statement and dismiss a minor case claim commenced in the court. As I have already said, the court did have that jurisdiction. This ground of appeal fails.
Ground 1(d)
Section 30 of the Magistrates Court (Civil Proceedings) Act 2004 restricts the ability of a party in a minor case to be represented before the court. It does not prohibit a lawyer filing documents for a party. In any event, her Honour granted the National Australia Bank leave to be represented by a legal practitioner, as she had power to do under s 30. Even if a lawyer were not permitted to file a document for a party, that would not make her Honour's orders outside of the court's jurisdiction. This ground of appeal fails.
Ground 1(e)
As I have already said, in dealing with the previous ground, s 30 expressly gives the court power to give a party to a minor case leave to be represented by a legal practitioner. It is not correct that the decision to allow the National Australia Bank to be represented by a legal practitioner was made by the learned magistrate on her own initiative. By its application dated 25 March 2014 the National Australia Bank applied for leave to be represented by legal practitioners. In any event, s 15 of the Magistrates Court (Civil Proceedings) Act 2004 allows the court to act on its own initiative, on notice to the parties. Mr Ninan had notice that the court would consider allowing the National Australia Bank to be represented by legal practitioners by the Bank's application dated 25 March 2014. This ground of appeal fails.
Ground 1(f)
This ground does not make sense. The ground does not provide a basis to conclude that the orders made by the learned magistrate were made in excess of her jurisdiction. This ground of appeal fails.
Ground 1(g)
For the reasons I expressed when I considered ground 1(a) the learned magistrate had jurisdiction to strike out a minor claim. This ground of appeal fails.
Ground 2(a)
A party to a minor case is entitled to be afforded natural justice. The nature of the right to natural justice was explained by Newnes JA in Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [57] - [59]. The principles of natural justice require that a party be given a reasonable opportunity to present that party's case. Mr Ninan was given a reasonable opportunity to present his case. He had notice of the purpose of the hearing before the learned magistrate by the National Australia Bank's application dated 25 March 2014. He filed written submissions on the hearing of that application and made oral submissions at the hearing on 13 June 2014. This ground of appeal fails.
Ground 2(b)
This ground does not provide a basis to conclude that Mr Ninan was denied natural justice. This ground of appeal fails.
Ground 2(c)
It appears from the list of authorities that Mr Ninan filed for the hearing of the National Australia Bank's application before me that 'S 80 of RTA Act 1978' is a reference to s 80 of the Residential Tenancies Act 1987. That section prohibits the entering, for the purposes of recovering possession, of premises of which a person has possession as a tenant under a residential tenancy agreement or as a former tenant holding over after termination of a residential tenancy agreement. Mr Ninan does not claim that he was such a tenant. In the details annexed to his minor case claim he claimed that the National Australia Bank had wrongly given notice to his tenants to vacate the premises he had leased to them. Whether or not the notice was valid, the giving of a notice would not constitute a breach of s 80 of the Residential Tenancies Act 1987. Whether or not there had been a breach of the section, the ground does not provide a basis to conclude that Mr Ninan has been denied natural justice because it does not suggest that he was denied a reasonable opportunity to present his case. This ground of appeal fails.
Ground 3(a)
This ground is expanded upon and explained in the chronology that Mr Ninan filed before the hearing before me. The part of the chronology to which I refer is as follows:
'25) 28 March, 2014
Though Registrar Roshan found that reconciliation was not possible at the conference, he failed to set a Hearing date though I insisted. He pretended that he knew nothing of the 'strike-out' application.
He argued under pressure that 'there may be something wrong' in our s 96 application without being specific on what it was.
Apparently, the court had decided to strike out the minor claim as they did not like the s 96 claim filed by me. Later the Court advised that strike out hearing was set for 9 May, 2014 & another 'pre-trial conference' was set for 13 May, 2013.
26) 9 May, 2014
Magistrate Atkins set yet another date 13 June, 2014 to hear the application to strike out. The court & magistrate were focused on illegal strike out of minor claim.
The crime of illegal eviction and land grab was right in front of the court.'
Section 29(3) of the Magistrates Court (Civil Proceedings) Act 2004 requires the court dealing with a minor case to act with as little formality as the court thinks is reasonable. Whatever level of formality the court thinks is reasonable it must not act in excess of its jurisdiction and must afford the parties natural justice. The chronology demonstrates that Mr Ninan was given notice of the proposed dates and the purpose of the hearings. He wished the matter to proceed to a hearing and did not wish the strike out application to be heard. As I have already concluded, it was within the learned magistrate's jurisdiction to determine the strike out application. The chronology and the ground of appeal do not support a conclusion that there has been an excess of jurisdiction or a denial of natural justice. This ground of appeal fails.
Ground 3(b)
For the reasons given when considering ground of appeal 3(a) this ground of appeal fails.
Ground 3(c)
This ground does not add anything that has not been covered by the previous grounds of appeal. For the reasons already provided it fails.
For these reasons none of the grounds in the notice of appeal have any reasonable prospects of success and they should all be struck out. Further, having considered the grounds of appeal, I am satisfied for the reasons that I have given that none of the grounds of appeal have been made out and that the appeal should be dismissed [30] - [44].
Grounds of appeal to the Court of Appeal and disposition
14 The appellant's grounds of appeal to this court are as follows:
DNJ denotes 'Denial of Natural Justice'; OOJ denotes 'Out of Jurisdiction'
15 As a preliminary observation, the grounds of appeal fail to recognise that there is no appeal from the Magistrates Court to this court.
16 It is evident from the terms of each of grounds 1 - 2 and 5 - 11 that none of those grounds is a proper ground of appeal, and none identifies any arguable error by Martino CJDC. Ground 3 of the appeal covers the issue addressed by ground 1(a) of the appeal to Martino CJDC. Martino CJDC's reasons in this respect disclose no arguable error. Ground 4 of the appeal covers the issues addressed by grounds 1(b) and 1(c) of the appeal to Martino CJDC. His Honour's reasons in those respects also disclose no arguable error.
17 No ground, on the most favourable construction that may be given to it, has any reasonable prospect of success. The absence of merit is not remedied by the appellant's submissions in the appellant's case or any of the other material or submissions relied upon by the appellant in this court. The grounds of appeal should be struck out and the appeal should be dismissed.
18 In relation to the appellant's application dated 21 November 2014, it should be observed that the registrar's directions were discretionary decisions of a case-management kind. The appellant's affidavit of 5 November 2014 was replete with conclusory assertions of a scandalous nature. No arguable error has been identified and that application has no merit.