Courts - Review order - Failure to identify act, order or direction of a court officer - Arguably reviewable error - Costs of legal practitioner litigant in person

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 13, s 15, s 19

Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 8(5)

Magistrates Court Act 2004 (WA), s 28, s 36

Review order granted in respect of issues raised in par 2 of the Amended Notice of Originating Motion; application otherwise dismissed

Dobree v Hoffman (1996) 18 WAR 36

Rayney v AW [2009] WASCA 203

Re Hogan; Ex Parte West Australian Newspapers Ltd [2009] WASCA 221

(This judgment was delivered extemporaneously on 15 January 2010 and has been edited from the transcript.)

1 These are my reasons in respect of Mr Bertini's ex parte application made by an amended notice of originating motion dated 1 September 2009. The application is made pursuant to the Magistrates Court Act 2004 (WA) s 36 for a review order. A review order is similar in effect to an order nisi made on application for a prerogative writ.

2 The Magistrates Court Act s 36(3) states that on an application for a review order '[t]he Court may make any review order that is just whether it has been applied for or not'. In Rayney v AW [2009] WASCA 203 the Court of Appeal said that the expression is not intended to empower the Court to make a review order if the decision-maker has not at least made an arguably, reviewable error.

3 In Re Hogan; Ex Parte West Australian Newspapers Ltd [2009] WASCA 221, the Court of Appeal assumed, without deciding, that the test for the grant of a review order is that there is 'an arguable case for relief being one that has some prospects of success'. I will do likewise. It is important to remember that in an application for a review order the criteria are different from the criteria for the grant of leave to appeal. I will deal with those differences in due course.

4 Mr Bertini is the defendant in a civil proceeding in the Magistrates Court. He is being sued to recover legal fees which it is alleged he owes his former solicitor. A complicating feature of the case is that the claimant in that proceeding, although a solicitor, is not Mr Bertini's former solicitor to whom he owed the money. Mr Bertini's former solicitor, Leonard Cohen, assigned the debt to the claimant Melvyn Levitan. Mr Bertini represents himself in this application and the proceeding in the Magistrates Court. The proceeding in the Magistrates Court has been protracted and Mr Bertini has made many applications within it.

5 When this application first came before me I pointed out to Mr Bertini some of the many flaws in it. I directed him to file an amended application, which he did; that is the application that is currently before me. The motion is still deficient in form and substance but it is apparent to me that granting the applicant further time to rectify its problems is unlikely to result in substantial rectification of its defects.

6 I have decided to proceed with the application despite its defects on the basis that through oral submissions and by reading the supporting material I have obtained a sufficient understanding of the application and the base for its parts. The alternative would be to dismiss the application simply on the basis that its form is embarrassing. As the applicant is unrepresented and has communication difficulties, in part because English is his second language, I have tried to deal with the substance of each part of the application on the merits.

7 Turning to par 1 of the application, Mr Bertini's first complaint is that a clerk of the Magistrates Court accepted for filing Mr Levitan's statement of claim dated 24 April 2006 when it did not have attached to it a list of documents that was then required to be filed with it, pursuant to the Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 8(5).

8 As I pointed out to Mr Bertini at the hearing of this application, this grievance does not identify an act, order or direction of a court officer. I can only make a review order in respect of an act, order or direction of a court officer; Magistrates Court Act s 36(1). A court officer is defined to mean a Magistrate or Justice of the Peace when constituting the Magistrates Court, or a Registrar when performing functions delegated to a Registrar under the Magistrates Court Act s 28.

9 In my view, the receipt by a clerk in the registry of a document does not constitute an act, order or direction of a court officer. Consequently par 1 of the application as it reads must fail.

10 I asked Mr Bertini if he would like to apply to review the decision of a Magistrate on 17 October 2008 to extend the time within which Mr Levitan could file his list of documents. Mr Bertini told me that he wanted the Supreme Court to review the clerk's receival of the statement of claim which did not include the list of documents. As I have already ruled, I cannot do that. In any event, there is no material before me from which I could conclude that the Magistrate, in extending time, made a decision that was arguably without jurisdiction or power or that was an abuse of process.

11 Neither is there material before me which would justify me finding that the decision was arguably wrong on any ground that might have justified an act of certiorari; that is, that there was a jurisdictional error. That is the only ground on which I could grant a review order in respect to an act, order, or direction of a court officer. For these reasons I decline to grant a review order in respect of par 1 of the application.

12 I now turn to par 2. The second paragraph of the application complains that Mr Levitan abused the process of the Court by overcharging Mr Bertini in three bills of costs. These bills were submitted by Mr Levitan in accordance with general orders for costs made against Mr Bertini during the course of the main proceeding in the Magistrates Court. Mr Bertini says that, in accordance with the decision in Dobree v Hoffman (1996) 18 WAR 36, Mr Levitan, being a solicitor litigant, is not able to receive legal professional costs in the Magistrates Court proceedings.

13 As with par 1, there is a problem in that par 2 does not identify a reviewable decision. Putting that issue to one side, par 2 does raise an issue that may have some merit. In Dobree v Hoffman it was determined solicitor litigants are not entitled to charge for their professional time on a party-party taxation. Mr Levitan is recorded in the law almanac as having been admitted to practise on 2 March 1988.

14 In par 2 of the application Mr Bertini refers to three bills of costs. The first bill followed an order of a Magistrate on 10 December 2007 that Mr Bertini's application for a review of a Magistrate's decision be dismissed. The Magistrate ordered that Mr Bertini pay Mr Levitan's costs of the application in any event and payable forthwith; see Mr Bertini's affidavit sworn 22 April 2009 ('the affidavit') at page 434 and the bill at page 432.

15 The bill arguably seeks reimbursement of what the court in Dobree v Hoffman referred to as 'profit costs'. Mr Bertini told me that on 12 June 2008 the bill was assessed by a Registrar at $1021.22. This is more than double the actual bill contained at page 432 of the affidavit. At this point I do not understand why that is so.

16 I have before me the certificate of assessment of the Registrar in the affidavit at page 417. The certificate fails to state the bill to which it refers or the order to which it refers.

17 The second bill referred to by Mr Bertini was also submitted pursuant to an order that Mr Bertini pay Mr Levitan's costs but it was ultimately taxed by a Registrar of the District Court at zero dollars.

18 The third bill of costs was submitted by Mr Levitan and it says that it is pursuant to five different costs orders dated 11 May 2006, 11 August 2006, 7 March 2008, 13 June 2008 and 17 August 2008. The Registrar of the Magistrates Court has reserved his decision in respect to the assessment or taxation of that bill.

19 The orders of 7 March 2008 and 13 June 2008 are before me at pages 72 and 395 of the affidavit. I also have before me the transcript of proceedings on 13 June 2008 when the Magistrate made a costs order against Mr Bertini. In all the voluminous material which Mr Bertini has filed I have not located the other orders or related transcript where the orders were made.

20 Further, the costs orders of 10 December 2007 and 13 June 2008 were the subject of an appeal to the District Court. The grounds of appeal included a ground that relied on Dobree v Hoffman. That case, however, was not mentioned during submissions and the judge did not refer to it when he dismissed the appeal.

21 His Honour did refer to Mr Bertini's application for an extension of time within which to appeal and appeared to determine the appeal on the ground that such an extension would not be granted. The merits of the ground of appeal which referred to Dobree v Hoffman do not appear to have been considered by his Honour.

22 There is no time limit for bringing this application, although delay is a matter for me to take into account when deciding whether it is just to issue a review order. Having regard to all the circumstances, I am persuaded that it is just to grant a review order in order to determine whether Mr Levitan is entitled to his profit costs in the Magistrates Court proceedings.

23 As Mr Bertini is self-represented and this is a legal issue which can be separately considered to the substantive proceeding in the Magistrates Court, I am not persuaded that the delay in bringing this application makes it unjust for me to grant the review in respect of par 2 of the application. In my view, I should only make the review order in respect of orders for costs of which there is an extracted order or a transcript before me evidencing the making of the order. Thus the review order will be made in respect of the orders of 10 December 2007, 7 March 2008 and 13 June 2008. I would expect in any event that any decision by me in respect of those orders would be applied by the parties in respect of similar orders in the Magistrates Court.

24 I now turn to par 3 of the application. Mr Bertini's third complaint is that on 7 March 2008 a Magistrate heard and dismissed his application for leave to file a counterclaim and for leave to 'cite Mr Levitan for contempt of court in accordance with s 15(3)(b) of the Magistrates Act 2004'. His complaint is that this application was heard in his absence when he had previously advised the Court that he would be unable to attend Court on that date.

25 Mr Bertini has advised me that his application was first mentioned on 11 January 2008 and adjourned to 8 February 2008. It was then adjourned to 7 March 2008. I do not have the transcript of proceedings of 8 February 2008. On 17 January 2008, Mr Bertini sent a letter to the Magistrates Court advising it that he would be unavailable between 9 February and 10 March 2008. From the bar table Mr Bertini told me that he told the presiding Magistrate on 8 February 2008 that he would be unavailable on 7 March 2008. I cannot confirm that because I do not have a transcript of proceedings on that date.

26 On 7 March 2008, Mr Bertini failed to appear in the Magistrates Court. The Magistrate proceeded to hear his applications and, without giving reasons, dismissed the application for leave to file the counterclaim and for leave to cite Mr Levitan for contempt.

27 It is a requirement in most proceedings that a judicial decision maker give some reasons for their decision. This was not done in respect to these applications. Even if I accept that the Magistrate was wrong to hear and dismiss the application in Mr Bertini's absence, I have decided to decline to make a review order in respect of the dismissal because of the gross delay in making this application and the age of the counterclaim.

28 Mr Bertini's application was, as I have said, dismissed by the Magistrate on 7 March 2008. I note that pursuant to s 15(2) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) the Magistrates Court could make an order on its own initiative with or without allowing the parties to make submissions or hearing the parties. The mere fact that the application was heard in the absence of Mr Bertini does not mean that the order of the Magistrate was made without jurisdiction or power. In fact, s 15(2) specifically gave the Magistrate the power to make the order.

29 Mr Bertini did not make this application for a review of the Magistrate's decision until April 2009, over a year later. As I have said, Mr Bertini's application to this court could not be dealt with until it was amended, so it was in an intelligible form.

30 Mr Bertini has not prepared a minute of the proposed counterclaim or certainly I have not seen one. His affidavit of 20 December 2007 at page 65 alleges that as a consequence of 'ill advice' received from Mr Levitan he incurred legal fees of some $14,500. This conduct appears to have occurred sometime between 1997 and 2000. Thus that claim would, on the face of it, appear to be statute barred. Mr Bertini attempts to get around this difficulty by saying that Mr Levitan has reneged on an agreement not to sue him if he did not sue Mr Levitan.

31 Nearly two years has elapsed since the Magistrate dismissed the applications of Mr Bertini in this respect. Justice requires that the substantive action in the Magistrates Court be heard without further delay caused by the filing of a counterclaim and the additional proceedings required in respect of it. In this respect I refer to s 13 of the Magistrates Court (Civil Proceedings) Act which provides that in dealing with cases the court is to ensure that cases are dealt with justly. The section says that this principle includes ensuring that cases are dealt with efficiently, economically and expeditiously.

32 On many occasions the presiding Magistrates have expressed concern about the protracted nature of the proceeding in the Magistrates Court and cited that delay as a reason for needing to take certain actions which were not necessarily what Mr Bertini wanted to occur. In my view, however, as I have said, it is important that the substantive action in the Magistrates Court be heard without the delay which would now be caused by the filing of a counterclaim and the additional proceedings required in respect of it.

33 The counterclaim does not raise the same issues that are raised in Mr Levitan's claim. There would be a need for considerable evidence in respect of it. If, as Mr Bertini asserts, his counterclaim is not statute barred, he may commence proceeding in the normal manner against Mr Levitan separate to the current proceeding in the Magistrates Court. In my view, that would be the preferable course now rather than to delay further the proceeding in the Magistrates Court.

34 The second part of the application dismissed by the Magistrate on 7 March 2008 was for leave to cite Mr Levitan for contempt for failing to make full and proper discovery in the Magistrates Court action of receipts which Mr Bertini says that Mr Levitan is in possession of. The issue of discovery has been the subject of applications and submissions to the Magistrates Court. The issue of whether Mr Levitan is in possession of documents which he has failed to discover and which are relevant to the issues between the parties is, in my view, a matter that can be adequately dealt with at trial.

35 In my view, it would not be just to make a review order now in respect of this part of the application when there is a more appropriate way in which the issue between the parties can be dealt with, and at the same time the main or substantive proceeding in the Magistrates Court can be progressed. For these reasons I decline to make a review order in respect of par 3 of Mr Bertini's application.

36 I now turn to par 4 of the application. The fourth complaint made by Mr Bertini is in respect of the issue of specific discovery. An order for general discovery on affidavit by both parties was made on 6 August 2007. On 19 July 2007, Mr Bertini had made an application for specific discovery of documents relating to various payments he says he made in payment of the debt as still claimed from him; see the affidavit at page 177.

37 The application was supported by an affidavit sworn the same date. The affidavit is rambling but in essence it says that Mr Bertini paid various amounts to Mr Levitan. On 6 August 2007 the application for specific discovery was dismissed; see the order at page 188 of the affidavit.

38 Page 3 of the transcript of proceedings on that date states that Mr Bertini had filed written submissions in support of his application. The Magistrate clearly had access to those submissions because he referred to them. The Magistrate heard oral submissions from Mr Levitan. He did not hear from Mr Bertini. He then ruled that there was no basis for making the order for specific discovery sought by Mr Bertini.

39 The Magistrate appears to have accepted Mr Levitan's submission that the documents neither related to his claim or to the defence as filed. The Magistrate said that the large part of the application did not appear to deal with matters which were relevant to issues between the parties; see the transcript at page 14. The Magistrate went on to say that Mr Levitan had not complied with r 8(4) and his Honour then made the order for general discovery.

40 I understand that Mr Bertini does not accept either the submissions made by Mr Levitan or the ruling of the Magistrate. However, in my view, the ruling of the Magistrate was clearly one made within his jurisdiction and power.

41 Mr Bertini alleges that the Magistrate 'avoided his duty to be honest'. I can see nothing in the transcript which would justify such a serious allegation. There are no grounds for me to find that the Magistrate's decision was an abuse of process. Although the Magistrate made his ruling without hearing orally from Mr Bertini, he had obviously had regard to his application, his affidavit and his written submissions.

42 As I have said, the Magistrates Court (Civil Proceedings) Act gives a Magistrate power to determine an application without hearing from the parties. There is nothing in the decision of the Magistrate to warrant me finding that the Magistrate failed to provide procedural fairness to Mr Bertini, neither is there material to warrant a finding of apprehended or actual bias by the Magistrate against Mr Bertini. Thus there are no grounds on which I could grant a review order in respect of this decision.

43 This is one area where there is an important distinction between an application for a review order and an appeal. In respect of an application for a review order the merits of the decision are not in issue, the question is whether there is an arguable error in jurisdiction or power or whether there has been an abuse of process or some other error that would justify the grant of a writ of certiorari. In my view, there is no such arguable error in respect of par 4.

44 In respect of par 5 of the application, the fifth complaint of Mr Bertini is that on 7 March 2008 his application for summary judgment was also dismissed because he was not present in Court. The application for summary judgment was made on 28 December 2007; see the transcript at page 360.

45 The application raised a considerable number of points. It is fair to say that the merits of it were not determined by the Magistrate because he simply dismissed the application on the non appearance of Mr Bertini. I do have reservations about the appropriateness of the Magistrate dismissing the application without giving Mr Bertini the opportunity to be heard orally and without giving at least some indication as to the merits of the application.

46 However, for the same reasons I gave in respect of par 3 and par 4 of this application, I am of the opinion that this far down the track it would not be just to grant a review order in respect of this decision. It would take considerable time to hear Mr Bertini's summary judgment application because of the number of issues he raises in it. A considerable amount of evidence would need to be considered by the Magistrate. I consider at this stage of the proceedings in the Magistrates Court all the matters raised by Mr Bertini could and should, if they are relevant, be considered at the trial of the proceeding in the Magistrates Court. It would not be in the interests of justice to delay the trial of the action in the Magistrates Court by requiring a Magistrate to determine the summary judgment application at this time.

47 Mr Bertini refers to the decision of the Magistrate on 7 March 2008 as the 'stealth dismissal'. This is unfair. Mr Bertini knew that the applications were listed on that date. They were heard and dismissed in open court. There was no stealth or secrecy by the Magistrate. It is wrong of Mr Bertini to refer to the decisions in that way.

48 In respect of par 6 of the application, the sixth complaint of Mr Bertini is that his application to review the Magistrate's decision of 7 March 2008 was dismissed. Mr Bertini made an application dated 25 March 2008 to review the orders of 7 March 2008. It was heard and dismissed on 7 July 2008.

49 From the bar table, Mr Bertini told me he was not present on 7 July 2008. I have only a transcript of the Magistrate's reasons on that date. There is nothing in them to indicate that Mr Bertini was not present on that date. To the contrary, the Magistrate refers to Mr Bertini's submissions as if he has heard from him in relation to the application.

50 Be that as it may, the Magistrate gave reasons for dismissing the application. In essence the reason was that Mr Bertini had notice of the hearing date on 7 March 2008 and he chose not to attend. He also referred to those applications as adding to the complexity of the proceedings.

51 Reading between the lines, it seems that the Magistrate was of the view that there was little to be gained by hearing those applications and much to be gained by proceeding to a hearing of the merits of the claim; that is, that justice would be assisted by proceeding to a hearing of the merits of the claim rather than dealing with the interlocutory applications made by Mr Bertini.

52 The other issue determined by the Magistrate was the Court had power pursuant to s 19(3) of the Magistrates Court (Civil Proceedings) Act to dismiss the applications in Mr Bertini's absence. In my view, the application in this paragraph fails for the same reasons that the applications in par 3, par 4 and par 5 fail.

53 The Magistrate had the jurisdiction and power to hear the application, the order of the Magistrate is not an arguably reviewable decision and there is no arguably reviewable error made by him in that decision.

54 In respect of this paragraph Mr Bertini also relies on fresh evidence which I believe consists of letters which he says supports his defence. To the extent that that material is relevant to the issues between the parties in the substantive claim in the Magistrates Court, they can be used by Mr Bertini in those proceedings but they do not cause me to conclude that this application should succeed.

55 In respect to par 7 of the application, the seventh complaint made by Mr Bertini is that his application to join the legal firm of Kott Gunning as a third party to the proceeding in the Magistrates Court was not successful. That application is dated 19 July 2007; see page 115 of the affidavit of Mr Bertini. Although Mr Bertini says that he prepared it on 18 July 2007, and that is why he refers to that date in his present application. The application was supported by an affidavit of Mr Bertini sworn 19 July 2007; see page 132 of the affidavit.

56 In essence Mr Bertini claims that when acting for him in the substantive Magistrates Court claim in 2006 members of the firm of Kott Gunning failed to provide him with competent legal services, and thus the firm owes him $5,000 odd dollars that he paid to them for those legal services as well as damages for pain and suffering.

57 On 6 August 2007 the application to join Kott Gunning was dismissed. I have been unable to find the transcript of proceedings on 6 August 2007. At the hearing of this application I told Mr Bertini that if I did not have the relevant transcript I would be unable to find for him because I would be unable to verify that there was any arguable error made by the Magistrate. That is the first problem with this paragraph of the application.

58 The next issue is that Mr Bertini claims that he was under duress when he withdrew his application to join Kott Gunning on 6 August 2007. However, the only record I have, being the order made that date, is to the effect that the application was dismissed; not that it was withdrawn.

59 I consider that there is insufficient evidence before me to find that there is an arguably reviewable error in the decision made on 6 August 2007. On the face of the order the Magistrate dismissed an application which he had jurisdiction and power to dismiss.

60 I also note that the application was dismissed over two years ago. There has been gross delay in bringing this application to review that decision. It is not in the interests of justice for the hearing of the substantive claim in the Magistrates Court to be delayed further by the bringing of a third party action. If Mr Bertini believes that he has a good cause of action against Kott Gunning then he may bring that claim as a separate proceeding. For these reasons I decline to grant a review order in respect of the matter raised in par 7.

61 In respect of par 8, the eighth complaint of Mr Bertini is that his application before Magistrate Boothman to recuse himself from hearing his case was unfairly dismissed. The application was made on 29 February 2008; see page 384 of the affidavit.

62 The grounds for the application were that Magistrate Boothman had denied him natural justice at two previous interlocutory hearings. It also relied upon an allegation that Magistrate Boothman had given preferential treatment to Mr Levitan and had not acted objectively. It alleged that a reasonable and objective person would have a reasonable apprehension that Magistrate Boothman was biased against Mr Bertini.

63 The application was supported by an affidavit sworn by Mr Bertini on 29 February 2008. On 13 June 2008 Magistrate Bromfield dismissed the application; see the affidavit at page 395. During the course of that hearing Magistrate Bromfield appeared to try very hard to get Mr Bertini to address him about the merits of the application of 29 February. However, Mr Bertini appeared to be preoccupied about procedural issues.

64 Further, Mr Levitan advised Magistrate Bromfield that Mr Bertini had previously made an oral application to Mr Boothman to disqualify himself. Mr Levitan said that application had been refused. Mr Bertini failed to tell Mr Bromfield why he had the power to hear an identical application apparently made on the same grounds. In this application Mr Bertini has not disputed that he did make an oral application to Mr Boothman to disqualify himself.

65 I understand that Mr Bertini does not agree with the decision of Mr Bromfield to dismiss the application but there is no evidence before me that to do so is an arguably reviewable error under s 36(1) of the Magistrates Court Act. It was a decision made within power and jurisdiction. Mr Bertini was given an opportunity to be heard on the application. Indeed, Magistrate Bromfield urged him to address the application rather than surrounding issues. There is nothing in the transcript to indicate that Magistrate Bromfield was biased against Mr Bertini, although he was certainly frustrated by Mr Bertini's failure to address the issue raised by the application. For these reasons I decline to make a review order in respect of par 8 of the application.

66 My conclusion is that I will grant Mr Bertini a review order in respect of the issues raised in par 2 of his application. Otherwise, the application is dismissed.

67 The review order does not in any way prevent the substantive claim in the Magistrates Court from proceeding. It is clear that it should proceed to a hearing as soon as possible. As I have said, Mr Bertini says that he has evidence to prove that his former solicitor agreed not to pursue this claim in the Magistrates Court. If that is so, it can be produced at the hearing. I would also expect that the claimant, Mr Levitan, would only proceed with the claim if there was no such agreement.