Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3)

Supreme Court Act 1935 (WA), s 7, s 58

Vexatious Proceedings Restriction Act 2002 (WA), s 4

Christovao v John Horton & Associates [2012] WASCA 12

MTI v SUL [2011] WASCA 267

Rankilor v Etihad Airways PJSC [2018] WADC 179

von Risefer v Permanent Trustee Co Pty Ltd [2005] QCA 109; [2005] 1 Qd R 681

1. At the conclusion of the hearing today, we made the following orders in the appeal:

(1) The respondent's application in an appeal filed on 1 February 2019 is dismissed.

(2) The appeal is struck out pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act).

1. On 2 November 2016, the appellant commenced proceedings against the respondent in the Magistrates Court of Western Australia, claiming $7,569.50 in damages for an alleged breach of contract. The contract, constituted by the appellant's purchase of an airline ticket with the respondent, was allegedly breached when the respondent refused to allow the appellant to board a flight from Rome on or about 3 August 2016. Until February 2018, the case had been dealt with by the Magistrates Court in accordance with the minor case procedure of that court. The court had dealt with a number of disputed interlocutory applications, in which each party achieved some level of success.
2. The matter was listed for trial in the Magistrates Court on 8 and 9 February 2018. The trial did not proceed, and the court instead dealt with the respondent's application for the matter to be dealt with under the general procedure and for security for costs. The application was made in reliance on s 28(2) of the MCCP Act. Section 28(2) requires the court to order that the minor case be dealt with under the general procedure where the case involves any jurisdiction conferred on the court by a law of the Commonwealth.
3. On 9 February 2018, a magistrate ordered that the appellant's claim be dismissed. His Honour did so after finding that the case was in federal jurisdiction. The magistrate told the appellant that there was an issue as to whether he dismissed the claim and the appellant started again if she wanted to, or whether he transferred the case 'from the minor case jurisdiction to the general procedure jurisdiction'. The appellant indicated that she thought it better 'that I start over again'.[1]
4. Having dismissed the appellant's claim, the magistrate ordered that the appellant pay the respondent's costs of the claim fixed in the sum of $1,250. The magistrate had previously granted leave for the respondent to be represented by a legal practitioner at the hearing of the respondent's application for an order under s 28(2) of the MCCP Act.
5. The appellant did not challenge the order dismissing her claim. However, the appellant did institute an appeal to the District Court seeking to challenge the order allowing the respondent to be represented by a legal practitioner and the costs order. That appeal was dismissed by the primary judge on 31 October 2018. No order was made as to the costs of the appeal to the District Court.
6. On 21 November 2018, the appellant filed an appeal notice in this court against the primary judge's order dismissing her appeal to the District Court.
7. The appellant attempted to file an appellant's case on 14 January 2019. The document was not accepted for filing on the ground that it did not comply with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). On 15 January 2019, the Court of Appeal Registrar extended the time for the appellant to file and serve her appellant's case to 29 January 2019. Her associate also wrote to the appellant explaining the requirements of an appellant's case. An appellant's case has still not been filed.
8. On 1 February 2019, the respondent filed an application in the appeal seeking leave to make an application under s 4(2)(c) of the Vexatious Proceedings Restriction Act 2002 (WA) (VPR Act), and for orders under s 4(1)(c) and (d) of that Act.
9. On 4 February 2019, the appellant filed an application in the appeal seeking, in effect, an extension of time in which to file her appellant's case to 28 February 2019.
10. The Court of Appeal Registrar has issued a notice for the parties to attend a hearing to consider:
    • Whether the appeal should be dismissed on the ground that the appellant has not obeyed the Supreme Court (Court of Appeal) Rules 2005 requiring the filing of an appellant's case;
    • The appellant's application in an appeal filed on 4 February 2019;
    • Whether the Court of Appeal division of the Supreme Court has jurisdiction to make orders under s 4 of the [VPR Act], as sought by the respondent's application in an appeal filed on 1 February 2019 (Respondent's Application);
    • The directions which should be made in the Respondent's Application; and
    • Whether the appeal should be struck out under s 43(3) of the [MCCP Act], on the basis that the likely costs of the appeal to the parties would be disproportionate to amount of the claim in, or the nature of, the case which is the subject of the appeal.
11. It may also be noted that, on 7 May 2018, the appellant commenced new proceedings in the Magistrates Court seeking to engage the general procedure. The respondent says that the claim is substantively identical to that made against it in the earlier proceedings. On 30 May 2018, the respondent applied to the Magistrates Court for a stay of the second proceedings until the present appeal was determined, and for security for costs. On 6 July 2018, a magistrate made orders listing the respondent's application for hearing on 1 October 2018, and ordered that the respondent was not required to lodge and serve a defence pending further orders. The hearing of the respondent's application has been adjourned on a number of occasions over the appellant's objection, and is currently listed for hearing on 22 February 2019.
12. The order of 6 July 2018, so far as it relieves the respondent from the requirement to file a defence until further order, was itself the subject of an appeal to the District Court. That appeal was dismissed by the District Court on 19 December 2018.[2] An appeal to this court against the dismissal was filed in this court on 14 January 2019. That second appeal to this court is not before us today.
13. In support of its application under the VPR Act, the respondent relies on the above history of the litigation against it, as well as a long history of litigation by the appellant in which she has pursued various claims against other persons.

1. It is convenient to begin by considering the application of s 43(3) of the MCCP Act.
2. Section 40, read with s 32, of the MCCP Act provides for a limited right of appeal to the District Court from a judgment of the Magistrates Court in a minor case. Section 42 of the MCCP Act gives a party to an appeal under s 40 the right of appeal, without leave, to the Court of Appeal against the District Court's judgment in the appeal.
3. In that context, s 43(3) of the MCCP Act provides:

(3) 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. As was noted by this court in Cristovao v John Horton & Associates:[3]

There are therefore two limbs to s 43(3). In determining whether the likely costs of the appeal would be disproportionate, the first limb is concerned with the amount of the claim in the Magistrates Court, and the second limb is concerned with 'the nature of the case which is the subject of the appeal'. Section 43 is not concerned with the substantive merits of the appeal: Defendi v Eden Hill Plasterers [2008] WASCA 269 [16].

The 'nature of the case which is the subject of the appeal' in s 43(3) is not, in our view, confined to the nature of the substantive proceedings in the Magistrates Court. Where, as here, the appeal is against an interlocutory order, it includes the nature of the particular issue in those proceedings which is the subject of the appeal.

1. In this case, the amount of the claim in the case which is the subject of the appeal is the amount of $7,569.50 sought by the appellant in the Magistrates Court. The nature of the case which is the subject matter of the appeal is an appeal from the decision to permit legal representation and award costs in the amount of $1,250.
2. In our view, the likely costs which would be incurred by the parties in this appeal would be disproportionate to the nature of the case which is the subject of the appeal. The experience of this court is that such costs are highly likely to exceed $15,000 in even a simple appeal where one of the parties is legally represented. It is unnecessary to attempt further quantification of the likely costs in this case. Even on this basis, the likely costs of the appeal to the parties is disproportionate to the costs award of $1,250 which is, substantively, the subject of the appeal. There is no discretionary reason in this case for the court to decline to exercise its power under s 43(3) of the MCCP Act.
3. The appellant raised a variety of matters going to the merits of her underlying claims for damages and the procedure adopted in the Magistrates Court. Those matters do not impact on the critical question of the proportionality between the amount at stake in this appeal and the likely costs of this appeal to the parties.
4. The appellant also contends that the respondent has unreasonably incurred costs in the appeal and in the Magistrates Court. However, our assessment of proportionality is based, not on the costs actually incurred by the respondent, but on the costs which are likely to be reasonably and properly incurred in this appeal by a litigant in the respondent's position.
5. We would therefore make an order under s 43(3) of the MCCP Act striking out the appeal. In these circumstances, it is unnecessary to deal with the appellant's application for an extension of time in which to file her appellant's case.

1. We turn to consider the respondent's application under the VPR Act.
2. Section 4 of the VPR Act relevantly provides:

(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or

(b) it is likely that the person will institute or conduct vexatious proceedings,

the Court may make either or both of the following orders:

(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;

(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).

(2) An order under subsection (1) may be made by the Court on its own motion or on the application of:

...

(c) with the leave of the Court:

(i) a person against whom another person has instituted or conducted vexatious proceedings; or

(ii) a person who has a sufficient interest in the matter.

1. The term 'Court' is defined in s 3 of the VPR Act to include 'the Supreme Court' and 'a judge'.
2. Section 7(1) of the Supreme Court Act 1935 (WA) (SC Act) divides the exercise of the Supreme Court's jurisdiction between the General Division and the Court of Appeal. By s 7(4) of the SC Act, the General Division exercises all of the jurisdiction of the Supreme Court other than the jurisdiction referred to in s 58(1) of the SC Act.
3. Relevantly to this case, s 58(1)(i) of the SC Act provides for the jurisdiction of the Court of Appeal to hear and determine appeals to the Court of Appeal under the MCCP Act. Section 58(2) of the SC Act provides for such an appeal to be brought before the Court of Appeal which shall hear and determine the same, 'and questions incidental thereto'.
4. In our view, an application for orders under s 4(1)(c) and (d) of the VPR Act, or for leave to bring such an application under s 4(2)(c) of that Act, is neither part of the determination of an appeal under s 42(1) of the MCCP Act nor incidental thereto. The course proposed by the respondent involves the exercise of original rather than appellate jurisdiction. The effect of the order sought would not be confined to these appeal proceedings, but would stay or restrain the institution of other proceedings. In our view, the Court of Appeal does not gain jurisdiction to deal with such an application merely because it is made by way of an application in an appeal in what is said by the respondent to be one of the vexatious proceedings on which it relies.
5. The same conclusion was reached in MTI v SUL,[4] where it was held that the Court of Appeal does not have jurisdiction to entertain an application under s 4 of the VPR Act.
6. It may be noted that, if the magistrate was correct in holding that he was dealing with a matter arising under the Civil Aviation (Carriers' Liability) Act 1959 (Cth), then this court may be exercising jurisdiction conferred by s 39(2) of the Judiciary Act 1903 (Cth). However, that investiture of jurisdiction is expressly made within the limits of this court's jurisdiction, so that the provisions of s 7 of the SC Act would remain applicable.
7. The respondent makes the alternative contention that this court should make the orders it seeks in the exercise of its inherent jurisdiction to prevent an abuse of its process. For its submissions as to the scope of that power, the respondent principally relies on the decision of the Queensland Court of Appeal in von Risefer v Permanent Trustee Co Pty Ltd.[5]
8. The invitation to make the orders sought by the respondent in the exercise of the court's inherent jurisdiction should not be accepted for three reasons.
9. First, the application in an appeal specifically seeks only orders under s 4 of the VPR Act.
10. Secondly, the power was exercised in von Risefer in a context where the court was satisfied that the appeal to the Queensland Court of Appeal raised baseless allegations, was without discernible merit and was bound to fail.[6] We are not prepared to reach a final conclusion about the possible merits of the appeal in this case in advance of the appellant's filing an appellant's case which discloses her grounds of appeal and arguments in support of those grounds. Nor has there been any determination of the substantive merits of the appellant's contractual claim in the Magistrates Court.
11. Thirdly, the Queensland Court of Appeal recognised that the court does not have a general inherent jurisdiction to restrain a person from commencing new proceedings. However, an order can be made to restrain new proceedings so long as it could be determined that those proceedings constituted an attempt to re-litigate a dispute that had already been concluded. The order made in von Risefer was confined to restraining the issuing of new proceedings arising out of or concerning the allegations made in the proceedings with which the Queensland Court of Appeal was concerned. By contrast, in the present case the minute of orders sought by the respondent seeks to prohibit the appellant's institution of further proceedings against the respondent generally. It is not confined to preventing the appellant from commencing new proceedings challenging the costs order which is the subject of this appeal. As noted above, there has been no determination of the substantive merits of the contractual claim advanced in the Magistrates Court, and the effect of the order dismissing the first proceedings on the appellant's capacity to pursue the second proceedings is yet to be determined.
12. Therefore, the respondent's application in an appeal for orders under s 4 of the VPR Act should be dismissed on the basis that the making of those orders falls outside the jurisdiction of the Court of Appeal. If the application is sought to be pursued by the respondent, it should be made by originating process in the General Division of the court.

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

[2] Rankilor v Etihad Airways PJSC [2018] WADC 179.

[3] Christovao v John Horton & Associates [2012] WASCA 12 [20] - [21].

[4] MTI v SUL [2011] WASCA 267 [36] - [42].

[5] von Risefer v Permanent Trustee Co Pty Ltd [2005] QCA 109; [2005] 1 Qd R 681.

[6] von Risefer [9], [11], [25].