Supreme Court of WA|2011-12-22|Before: Corboy J

1 Ms Saldanha has been in dispute with her former employer, Fujitsu Australia Pty Ltd, since about late 2007. The dispute concerns benefits that Ms Saldanha claims ought to have been paid under her contract of employment.

2 Ms Saldanha applied to the Western Australian Industrial Relations Commission (the WAIRC) in March 2008 for orders requiring payment of the claimed benefits. The Full Bench held that the Commission did not have jurisdiction to hear and determine the application: Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732. An appeal from the decision was dismissed in June 2009 as being incompetent: Saldanha v Fujitsu Australia Ltd [2009] WASCA 119.

4 Ms Saldanha appealed to the District Court from the orders made by the learned magistrate. The appeal was dismissed by Wager DCJ: Saldanha v Fujitsu Australia Ltd [2010] WADC 43.

5 Ms Saldanha now seeks a review of the orders made by Magistrate Boon and the assessment of costs made by the registrar under s 36 of the Magistrates Court Act 2004 (WA) (Magistrates Court Act). The ex parte application for a review order came before Beech J in May 2010. He adjourned the application to enable Ms Saldanha to decide whether she wished to appeal from the decision of Wager DCJ: Saldanha v Fujitsu Australia Ltd [2010] WASC 105. Ms Saldanha decided not to appeal her Honour's decision.

6 I have concluded that a review order should be made.

7 Section 35 of the Magistrates Court Act provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of, or directed to, a court officer. A court officer is defined by s 3 to mean a magistrate, a justice of the peace when constituting the court or a registrar performing functions delegated under the rules of the court pursuant to s 28 of the Act.

8 Section 36 provides for review by the Supreme Court where a person is or would be aggrieved on certain grounds by an act, order or direction done or made or proposed to be done or made by a court officer. The grounds for review include any ground that might have justified an order of certiorari.

9 The purpose of s 36 of the Magistrates Court Act and the nature of the power conferred by the section were considered by McLure JA in Rayney v AW [2009] WASCA 203. Her Honour observed that:

(a) The purpose of s 36 is to replace and provide a statutory alternative to the common law relating to judicial review of the acts or omissions of officers of the Magistrates Court. The intention is to permit judicial review in those circumstances in which the specified prerogative writs would have been available but also to free the Supreme Court from the technical requirements associated with those remedies [27].

(b) A review order, like an order nisi, is an order to show cause why the relief referred to in s 36(4) should not be granted. Relief can only be granted under that subsection if one or more of the grounds identified in s 36(1)(a), (b) or (c) has been established. Consequently, the review order must require the court officer or any other affected person to satisfy the Supreme Court at a hearing that the act, order or direction referred to in pars (a), (b) or (c) of s 36(1) should or should not be done, made or set aside by reference to the grounds of review specified in sub-pars (i) and (ii) of s 36(1)(a), (b) or (c) [28] [29].

(c) It is a precondition to the exercise of the power to grant a review order that the 'threshold' for an error of the type identified in subpars (i) and (ii) of s 36(1)(a), (b) or (c) is satisfied. The expression 'that is just' in s 36(4) does not empower the Supreme Court to make a review order requiring the decision maker to show cause if the decision maker has not made an arguable error of the kind referred to in those subparagraphs [31].

10 It is apparent that her Honour's reference to s 36 of the Magistrates Court Act freeing the court from technical requirements was to the procedures associated with prerogative writs. Section 36(4)(b) refers to the grant of any relief or remedy 'that could have been granted' by way of mandamus, prohibition or certiorari. That makes clear, in my view, that par (b) of s 36(4) was intended to preserve the substantive law relating to judicial review - an interpretation that is consistent with the comment of McLure JA in Rayney that the intention of s 36 was to permit judicial review 'in those situations in which the specified prerogative writs would have been available' [27]. Consequently, the circumstances in which the court may grant relief under s 36(4)(b) by setting aside an order or direction made by an officer of the Magistrates Court include where the respondent to a review order fails to satisfy the court that the decision under review was not infected by jurisdictional error or nonjurisdictional error on the face of the record.

11 The plurality in Kirk v Industrial Commission of New South Wales [2010] HCA 1; 239 CLR 531 reaffirmed the distinction between jurisdictional and nonjurisdictional error for the purpose of judicial review of the decisions of inferior courts and administrative decision makers: see at [67] [68]. The reasoning of the plurality indicates that the distinction is substantive. Consequently, in my view, s 36 preserves the requirement that an error not going to the court's jurisdiction must be apparent on the face of the record.

12 The plurality in Kirk noted at [71] that it was not possible to attempt to mark the metes and bounds of jurisdictional error. However, they referred to the categories of jurisdictional error identified by Professor Aronson in his paper 'Jurisdictional Error Without The Tears' in Groves & Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 330 at 335 336. The same classification appears at [1.90] in Aronson Dyer & Groves, Judicial Review of Administrative Action (4th ed, 2009).

13 In summary, the categories identified by Professor Aronson are:

(a) a mistaken assertion or denial of the very existence of jurisdiction;

(b) a misapprehension or disregard of the nature or limits of the decision maker's functions or powers;

(c) acting wholly or partly outside the general area of the decision maker's jurisdiction by entertaining issues or making the types of decisions or orders that are forbidden under any circumstance (for example, a civil court trying a criminal charge);

(d) mistakes as to the existence of a jurisdictional fact or other requirement when the relevant Act treats that fact or requirement as something that must exist objectively as a condition precedent to the validity of the challenged decision;

(e) disregarding relevant considerations or paying regard to irrelevant considerations if the proper construction of the relevant Act is that such errors should result in invalidity;

(f) errors of law, 'although where the decision maker is an inferior court or other legally qualified adjudicative body, the error will probably have to be such that it amounts to a misconception of the nature of the function being performed or of the body's powers';

(h) breaching the hearing or bias rules of natural justice.

14 In Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, the High Court adopted a narrow view of what constituted the record of an inferior court for the purpose of certiorari. The record comprised the initiating process (including any pleadings) and the certified order of the court; it did not include the reasons for decision or the complete transcript of the proceedings. However, there are suggestions in the reasons of the plurality in Kirk that what constitutes the record of an inferior court or tribunal for the purpose of judicial review may be determined not by a fixed rule but rather, by reference to the statutory context within which a superior court exercises its supervisory function and the inferior court exercises its jurisdiction. That is most obvious where, as in Kirk, a provision of the legislation constituting the superior court expressly defines what constitutes the record for the purpose of judicial review. However, I am prepared to accept in determining whether a review order ought to be made that it may be arguable that regard should be had to legislative provisions conferring jurisdiction on the Magistrates Court to ascertain whether, by necessary implication, Parliament intended that review under s 36 for nonjurisdictional error could be undertaken by reference to a record that comprised more than the initiating process and the order of the court.

The procedure for determining Ms Saldanha's application

15 The procedure for a review order is prescribed by O 56A of the Rules of the Supreme Court 1971 (WA) (RSC). Order 56A r 2(1)(a) provides that the application for a review order must be made ex parte. The judge hearing the application may refuse the application or may make a review order to be heard by a judge in chambers or in court or by the Court of Appeal or may make an order under s 36(5) of the Magistrates Court Act remitting the matter to the District Court to be treated as an appeal: O56A r 3(2).

16 Fujitsu sought leave to be heard on Ms Saldanha's application. It noted that O 56A r 3(2)(e) RSC provided that notice of an application for a review order could be served on such persons as the judge directed and contended that the rule necessarily contemplated that the court could, if it considered appropriate, permit the application to be served on another person for the purpose of enabling that person to determine whether they wished to be heard on the application. I accept that the court has a discretion to allow a person who may be affected by a review order to appear and be heard on the application for the order. The application is to be commenced as an ex parte application and first listed before a judge in chambers as such. However, the court may then direct that it be heard between the parties.

17 Fujitsu identified two reasons why it sought leave to appear and be heard on Ms Saldanha's application. First, it was said that there was a risk that matters relevant to the application would not be disclosed by Ms Saldanha's originating motion and the supporting documents that she had filed pursuant to an order made in the application by Pritchard J. Second, there were issues arising out of the history of the matter that were appropriately canvassed at the review order stage. Those issues concerned proportionality between the subject matter of the application and the costs of appearing in answer to a review order in circumstances where Ms Saldanha had pursued an appeal from Magistrate Boon's orders in the District Court but had subsequently chosen not to challenge the decision of that court. Leave was granted for Fujitsu to appear having regard to those matters (I should add that it was not suggested at the final hearing of the application that the documents filed by Ms Saldanha were incomplete).

18 Section 32(1) of the MC (CP) Act states that except as provided by the section, no appeal lies against an order made by the court in the course of proceedings in a minor case or the judgment of the court in such a case. An appeal lies to the District Court against a judgment in a minor case under pt 7 of the Act where the court was constituted by a magistrate (s 32(2)). However, under s 32(3) the appeal may only be on the grounds that:

(a) the minor case was not within the jurisdiction of the court or was not a minor case;

(b) there was a denial of natural justice in dealing with the minor case; or

19 The apparent intention of s 32 is to exclude a right of appeal in respect of interlocutory decisions (s 31(1)(a) refers to an order made by the court in the course of proceedings) and to significantly limit the grounds on which a dissatisfied party may appeal the ultimate disposition of a minor case. It is also apparent that the grounds of appeal permitted by s 32(3) are more restricted than the grounds that might justify an order of certiorari for the purpose of s 36 of the Magistrates Court Act.

20 Ms Saldanha's originating motion is in three parts. The first part identifies the grounds for the application. It states that the decision of the learned magistrate was based on:

(a) evidence that was inadmissible under the MC (CP) Act;

21 The second part (attachment 1) provides a very detailed statement concerning those grounds. The third part (attachment 2) is a copy of a letter dated 21 June 2008 from Ms Saldanha to a Commissioner of the WAIRC. The letter concerns part of her claim that she was denied benefits payable under her contract of employment.

22 It will assist in identifying Ms Saldanha's complaints to first summarise the course of the proceedings she commenced in the Magistrates Court. The summary is drawn from the matters stated in attachment 1 to the originating motion and from the documents that Ms Saldanha provided to the court pursuant to the order made by Pritchard J.

23 Ms Saldanha commenced proceedings in the Magistrates Court by a minor case claim form that was undated but which Ms Saldanha stated was filed electronically on 29 June 2009. She claimed $9,900 comprising:

(c) compensation in the amount of $8,400 'for being forced to work 40 hours per week instead of the contracted 37.5 hours per week between April 2001 and June 2003'.

24 I will refer to the first two components of Ms Saldanha's claim together as the 'Salary Claim' and the third component as the 'Compensation Claim'.

25 Ms Saldanha stated in attachment 1 that as a result of 'inconsistent' advice that she was given by the registry she missed the opportunity to apply for default judgment before Fujitsu filed its response to the claim. According to the attachment:

(a) Ms Saldanha posted a copy of her claim to the registered office of Fujitsu on 2 July 2009. She inquired from the registry staff whether she should file an affidavit of service but was advised that the affidavit would only be required if the defendant did not respond to her claim within 14 days (attachment 1, par 5).

(b) Ms Saldanha contacted the registry on 'around' 23 July 2009 to ascertain if she could submit an application for default judgment. She was advised that Fujitsu had 21 days within which to file a response to her claim as its registered office was located outside Western Australia (par 6).

(c) Ms Saldanha attended the registry on 'around' 8 August 2009 for the purpose of lodging an application for default judgment. However, she was informed that Fujitsu had lodged its response to her claim indicating that it intended to defend the claim. Ms Saldanha alleged that, '[w]hen I pointed out that they [Fujitsu] had missed the deadline, I was told that because I did not file a "proof of service" they [the registry] had no way of knowing when the claim was served and hence had to accept the defendant's "Notice of Defence"' (par 7).

26 Among the documents provided by Ms Saldanha to the court pursuant to the direction made by Pritchard J was a letter dated 10 August 2009 from Fujitsu's solicitors to Ms Saldanha. That letter enclosed a copy of Fujitsu's response to Ms Saldanha's claim. The response was dated 6 August 2009 but the accompanying letter stated that the response had been filed on 10 August 2009.

27 On 1 September 2009, Fujitsu filed an application for leave to be represented by a solicitor and for orders that:

(a) Ms Saldanha's claim be struck out as an abuse of process;

(b) alternatively, that 'claim 3' (the Compensation Claim) be struck out 'on the basis that it was statute barred' (Fujitsu's Application).

28 The application was listed for hearing on 14 September 2009. It was supported by an affidavit sworn by Ms Stanton, a member of the firm of solicitors retained by Fujitsu (Ms Stanton's Affidavit).

29 Ms Stanton stated in her affidavit that Ms Saldanha had claimed a total of $22,947.30 from Fujitsu in the WAIRC. She annexed to the affidavit the letter from Ms Saldanha to the WAIRC that was attachment 3 to the originating motion. The letter, which was dated 21 June 2008, asserted that Ms Saldanha was entitled to be paid for working more than 37.5 hours per week across various periods between April 1999 and April 2007.

30 Ms Stanton also annexed to her affidavit correspondence exchanged between her firm (McCallum Donovan Sweeney (MDS)) and Ms Saldanha shortly prior to and immediately following the commencement of the proceedings in the Magistrates Court. That correspondence was significant for the decision made by Magistrate Boon on Fujitsu's Application. It is necessary to refer to it in some detail:

(a) MDS asserted in a letter dated 23 March 2009 that Ms Saldanha's claim was 'entirely lacking in merit' and that 'if you proceed in the Magistrates Court you are likely to have an order for costs made against you in favour of our client' (attachment 'FAS 2' to Ms Stanton's Affidavit).

(b) Ms Saldanha responded by letter dated 15 April 2009 stating (attachment 'FAS 3'):

Re the matter regarding my claim for working in excess of 37.5 hours per week, I think it is best dealt with in the Magistrates Court. Thank you for informing me that I am likely to have an order for costs made against me in favour of Fujitsu. However, I wonder how that is possible given that I told you that I am going to split my claims so that they are under $10,000 each, thus eliminating the need for lawyers.

We are not aware of any basis for the claims to be divided. Indeed, Mr Pettit QC stated...during the hearing of the matter in the Full Bench that your cause of action arose as a result of a single direction to work for 40 hours per week. In that case, there is a single, indivisible cause of action arising at the outset. Even if that statement was incorrect, and there are multiple causes of action, they should be heard together.

If you were to file two claims rather than one when there was no reason to do so, this would be amount to an abuse of process. Both actions could be struck out or alternatively, they could be consolidated into one cause of action. In either case, we put you on notice that our client would seek costs against you in relation to the necessary application. (emphasis added)

(d) By letter dated 15 June 2009 ('FAS 5'), MDS stated that:

As I [Ms Stanton] understand it ... you continue to assert that you are able to commence multiple actions in the Magistrates Court in relation to your claim against the company. We again put you on notice that if you do so, Fujitsu will apply to consolidate those actions on the basis that there is no reason why separate actions are required. It appears that commencement of the actions in this way would be a device to attempt to avoid having to pay Fujitsu's legal fees at the conclusion of the matter.

We will refer to this letter on the question of costs should such an application be necessary. (emphasis added)

(e) By letter dated 13 August 2009 ('FAS 6'), MDS again wrote to Ms Saldanha. The letter:

(i) noted that Ms Saldanha had claimed in the WAIRC an amount that was greater than the claim made in the Magistrates Court;

(ii) referred to that part of Ms Saldanha's letter of 15 April 2009 that is reproduced above and to that part of MDS's letter of 5 May 2009 that is also reproduced above;

(iii) stated that by their letter of 15 June 2009, MDS had again put Ms Saldanha 'on notice that our client would object to you commencing actions in this way';

(iv) requested that Ms Saldanha advise whether she intended to make any other claim in the addition to the claim that she had commenced.

31 Fujitsu also filed submissions in support of its application. Those submissions contended that:

(a) The Compensation Claim was time barred as it related to a period between April 2001 and June 2003.

(b) The proceedings formed part of an abuse of the court's processes as Ms Saldanha intended to commence multiple claims in respect of the same subject matter for the purpose of bringing her claims within the minor case jurisdiction of the Magistrates Court so as to avoid the risk of an order for costs being made against her. The submissions continued:

There is no basis to resolve this dispute in a piecemeal fashion. Unless the claimant is able to state that she does not intend commencing any other claims in relation to her allegation that she was directed to work for 40 hours per week in breach of her contract of employment, the present action should either be struck out, or stayed pending commencement of Ms Saldanha's further claim or claims, in order that an application for consolidation of those claims can be made. (emphasis added)

32 It is appropriate to note two matters regarding the correspondence from MDS and the submissions made by Fujitsu in support of its application having regard to the significance attached to the correspondence by Magistrate Boon and on appeal, by Wager DCJ.

33 First, the correspondence and submissions did not precisely identify why bringing more than one claim might be regarded as an abuse of process. Ms Saldanha was not represented and it is not to be assumed that she would have understood the meaning to be attributed to the expression 'abuse of process' or have appreciated the reasons why multiple claims in respect of the same subject matter might be susceptible to being struck out. She was merely advised that filing two claims rather than one when there was no reason to do so would amount to an abuse of process (MDS's letter of 5 May 2009). It could be inferred from MDS's subsequent letter of 15 June 2009 that the contention was that it was improper for Ms Saldanha to commence multiple claims in order to avoid being made liable for Fujitsu's legal costs 'at the end of the matter'. Why that might be regarded as being improper was not further explained.

34 Second, the gist of MDS's correspondence was that there would be an abuse if Ms Saldanha actually commenced multiple claims. The submissions accompanying Fujitsu's Application were broadly consistent with that approach. Although the application sought to strike out the only claim that had been commenced by Ms Saldanha, it said that the claim should be struck out 'unless [Ms Saldanha] is able to state that she does not intend to commence any other claims'. Ms Saldanha could reasonably conclude from that submission that her claim would not be struck out if she made a statement to that effect. The correspondence and submissions also canvassed the alternative of consolidation of multiple claims (if commenced).

35 Ms Saldanha made an affidavit on 8 September 2009 in response to Fujitsu's Application. She stated in her affidavit that:

(a) She objected to Fujitsu being represented by a solicitor as she would be unfairly disadvantaged.

(b) Fujitsu was seeking to rely on statements made by Ms Saldanha in without prejudice communications.

(c) She did not see why the manner in which she proposed to deal with her claim constituted an abuse of process and she did not accept that her claim was time barred as she had commenced her claim in the WAIRC in March 2008. She had been advised by the WAIRC that she could not commence actions on the same claim in two different courts and that for the purpose of the statute of limitations, the 2008 date would apply.

(d) She objected to Fujitsu's Application being heard prior to the pretrial conference required by the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) (Procedure Rules) being convened.

36 Ms Saldanha stated in attachment 1 that at the time that she filed her affidavit, the court's registry staff refused to allow her to file an application to strike out Fujitsu's Application on the ground that Fujitsu had failed to file a response to her claim within the 14 day period specified in the Procedure Rules. According to Ms Saldanha, she also complained to the registry that she had not been given 10 days notice of the hearing of Fujitsu's Application. She was advised that the registry was unable to ascertain when she had been served with the application as no affidavit of service had been filed by Fujitsu. Ms Saldanha contended in attachment 1 that the hearing on 14 September 2009 ought not to have been convened (and ultimately, she should not have been ordered to pay the costs of the hearing) because first, Fujitsu had not filed an affidavit of service of its application and second, the application had not been served on her at least 10 days prior to the hearing as required by the Procedure Rules.

37 Magistrate Boon gave leave for Fujitsu to be represented by a lawyer over Ms Saldanha's objection at the first hearing of Fujitsu's Application on 14 September 2009. However, leave was only granted for representation at the hearing of the application. Her Honour concluded that Fujitsu should be permitted to be represented having regard to the legal issues entailed in the application.

I'm just wondering whether I have got another option. Can I amend my claim, the current one, and include just the first two items and the third item which appears to be statute barred and things like that I can - as you will notice, I thought that this current bit is within the limit - I mean, within the statute and that's why I only put in the claims between 2001 and 2008. Now it's a question of the date from which it becomes statute barred and if I'm told which particular date it is, then I'm happy to amend it again and just, you know, include the bits that are not statute barred and then it will be just the one claim. (emphasis added)

39 The learned magistrate advised that she was not prepared to permit Ms Saldanha to amend her claim without notice and that she could either apply to amend the claim or she could correspond with Fujitsu to see whether it was prepared to consent to any proposed amendment.

40 On 1 October 2009, Ms Saldanha filed an application seeking to have Fujitsu's Application struck out on the ground that Fujitsu had failed to file its response to her claim within the time specified by the Procedure Rules. She sought, in the alternative, leave to amend her claim so as to claim $8,400 for 'compensation for being forced to work for 40 hours per week instead of the contracted 37.5 hours per week for varying periods between April 2003 and June 2007'. The application was accompanied by an affidavit that annexed further correspondence with MDS (Ms Saldanha's October Affidavit). That correspondence indicated that Fujitsu refused to agree to the proposed amendment on the ground that the existing claim for compensation ought to be withdrawn entirely as it was time barred and any substituted claim would lack merit having regard to the terms of Ms Saldanha's employment contract with Fujitsu.

41 Ms Saldanha's October Affidavit also contained a denial that she had deliberately sought to split her claims:

Ms Stanton in her affidavit of 31 August 2009 appears to be accusing me of deliberately splitting my claims in order to avoid having to pay Fujitsu's legal fees at the conclusion of the matter. On the contrary, I decided to structure my claim in the way I did in the hope of avoiding any loopholes in the law which enables Fujitsu to delay this matter further and thus reduce the value of any subsequent claims that may arise from a finding against them with Claim 3. As it is, as a result of the drawn out process in the WA Industrial Relations Commission, a substantial portion of my claim appears to have become time barred (according to Fujitsu).

42 The reference in this part of Ms Saldanha's affidavit to 'Claim 3' was to the Compensation Claim.

43 Ms Stanton made a further affidavit in response to Ms Saldanha's application to strike out Fujitsu's Application. The affidavit concerned the merits of the Compensation Claim and the circumstances in which Fujitsu had been served with Ms Saldanha's claim.

44 Fujitsu's Application was heard by Magistrate Boon on 26 October 2009. Ms Saldanha stated in relation to the allegation that she intended to split her claims:

She [Ms Stanton] said ... 'if you take this to court, there will be huge lawyer's fees', blah, blah, and I said, 'well I don't understand where you're coming from because this is a minor case claim', and I haven't split my claims up. I understand that I have the option to reduce my claim, ok, in the sense if the claim is $20,000, I have the option to reduce it to a lower amount so that it is within the jurisdiction of the court and which is what I have done. (ts 15)

45 Ms Saldanha then denied that she had split her claims but, 'I agree I made a mistake in terms of the dates. I probably shouldn't have put the dates. I should have just put the amounts' (ts 15). She stated that her concern was with establishing whether it was lawful for Fujitsu to pay her for working 37.5 hours per week when she claimed to have worked in excess of that number of hours (ts 17). She realised after writing to MDS that there was 'no question of splitting it because some of it was timebarred ... it was still under the $10,000 whether I split it or didn't split it' (ts 23). Consistent with that position, Ms Saldanha stated in the course of the hearing that she was prepared to amend her claim to ensure that it was not time barred, to confine her claim to less than $10,000 (the limit of the minor case jurisdiction) and to not bring any further claims (that is, to not split her claims). She emphasised on several occasions that she now intended to bring only one claim (ts 17, 19, 23, 24 and 28 and see below).

46 Fujitsu submitted at the hearing that Ms Saldanha could not amend her claim to overcome the limitation issue; it would be necessary for her to commence an entirely new claim as (so it was submitted) it was not possible to 'amend so as to bring a time-barred claim - make a time-barred claim a non-time-barred claim ... you can't cure a statute barred [claim] by amendment because what that, in effect, does is take a whole new claim and allow time to run in relation to it from a date that related to an entirely different claim' (ts 4). The learned magistrate queried with Ms Stanton (who appeared at the hearing for Fujitsu) whether that problem could be overcome by allowing Ms Saldanha to amend her claim so that compensation was only sought for a period that was not time barred when calculated from the date of the hearing. The following exchange then occurred (ts 6):

Stanton, Ms: If we did it from today's date, we would be writing her claim for her and I would have a concern that I hadn't seen the last of it and that we might have further claims and so on, but ---

Her Honour: What if we did it by today's date, but we stipulate - pin her down now that no further claims ---

Stanton, Ms: Other than going on oath I'm not sure how we can.

Her Honour: Yes I know.

Stanton, Ms: I mean, I think she would have to go on oath and thereby be estopped.

47 Later in the hearing, the learned magistrate explained to Ms Saldanha that Fujitsu's allegation of abuse of process was that she had indicated in correspondence that she intended to 'get around this problem of... having legal costs by deliberately splitting your claims'. Ms Saldanha responded (ts 24):

Yes but I haven't done that. I have only got one claim in the court ... so I haven't split the claims. It's just the claim that's before the court and I'm standing here and saying now it's for the whole claim. It's for the entire amount ... the second bit about the claim being struck out on the basis that it's statute barred - given that there was no guidance in the rules, I'm requesting that it be amended as per the rules.

48 In reply to that submission, Fujitsu contended that Ms Saldanha had plainly intended that it and the court 'be put to the risk of inconsistent outcomes and the additional costs and inconvenience of multiple proceedings' and that Ms Saldanha's statements that she had not intended to split her claims at the time that she commenced her claim were 'simply untrue and incredibly disingenuous' (ts 25). There was, however, no submission in reply that Ms Saldanha's statements about her intentions in relation to the future conduct of her claim should be rejected.

49 The learned magistrate held that the Compensation Claim was for a period that was statute barred and 'that in itself would be enough to strike it out' (ts 26). She further held that:

I do note that there's a considerable amount of correspondence which has been annexed to Ms Stanton's affidavit ...

The correspondence indicates that the period of the claim was always between ... April 1999 until either April 07 or March 2008 ... That was always part of the claim by the claimant. This claim form has been lodged seeking only compensation for a limited period up to June 2003. The correspondence annexed to Ms Stanton's affidavit shows that the defendant notified the claimant that she couldn't split claims that way or that she couldn't do it because the claim was for a bigger amount and she indicated a clear intention in that letter to split the claims.

There's nothing before me on oath from the claimant which shows what she's now saying, that she only ever intended to limit herself to the minor case amount. There is just nothing that I can really rely on and my view is that if that had been the case, that should have been set out in the affidavit material or in the correspondence well before now and therefore I accept the submission on behalf of Ms Stanton that this was an attempt to circumvent the requirements that the claims be dealt with at the same time by using this as a vehicle and that does, in my view, amount to an abuse of process. The claimant has had a lot of notice from Ms Stanton's office of that. (ts 26)

50 Her Honour noted that Ms Saldanha's application to amend her claim was for a period commencing in April 2003. She held, 'that's statute barred and it's just not appropriate in the circumstances to allow that amendment' (ts 27). Her Honour concluded by observing that, 'the claimant if she wants to proceed, she will have to file another claim and whether it's in the minor case division or not depends on her' and 'it's just not an amendment that I'm prepared to grant at this stage because it's defective' (ts 27). Accordingly, she ordered that Ms Saldanha's application to amend be dismissed and that her claim be struck out pursuant to Fujitsu's Application.

51 The learned magistrate also ordered that Ms Saldanha pay the costs of Fujitsu's Application. She did so pursuant to s 31(3)(a) and (b) of the MC (CP) Act. Section 31 of the Act provides that a successful party to a minor case is ordinarily only entitled to recover from the other party court and service fees. However, s 31(3) enables the court to make an order requiring the unsuccessful party to pay other costs incurred by the successful party if it is satisfied that:

(a) because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or

(b) the unsuccessful party's claim was 'wholly without merit'.

52 The learned magistrate concluded that Ms Saldanha should pay Fujitsu's costs of its application on each of those grounds. After hearing from Ms Saldanha, her Honour held that:

I have told you I have struck it [the claim] out and that I wasn't satisfied with your submissions and I accepted the submissions that it was an abuse of process and that it was statute barred and so it is without merit and it is exceptional given the extraordinary length that Ms Stanton went to in her correspondence which is annexed to warn you of this. (ts 29)

53 Ms Saldanha's notice of appeal in the District Court from the decision of the learned magistrate contained a number of complaints (there were 44 grounds of appeal). There was no complaint that the court had exceeded its jurisdiction. Consequently, Wager DCJ considered the appeal by reference to whether any of the grounds disclosed a failure to accord natural justice to Ms Saldanha. In particular, she considered whether:

(a) Ms Saldanha was denied natural justice by the learned magistrate ruling that her claim could not be amended to excise that part of the claim that was time barred;

(b) the learned magistrate had heard sufficient argument in relation to the question of whether Ms Saldanha intended to split her claim;

(c) her Honour had wrongly found that any intention on the part of Ms Saldanha to split her claim was an abuse of process;

(d) Ms Saldanha's claim had been conducted according to the Procedure Rules;

(e) the effect of any advice given by the registry of the court concerning service of Ms Saldanha's claim had been to deny Ms Saldanha natural justice;

(f) Ms Saldanha had been denied natural justice by the listing of Fujitsu's Application on 14 September 2009;

(g) Ms Saldanha had been denied natural justice by the registry not allowing her to file her application to strike out Fujitsu's application until 12 October 2009;

(h) Ms Saldanha had been denied natural justice by the learned magistrate allowing Fujitsu to be legally represented;

(i) Ms Saldanha had been denied natural justice by Fujitsu being granted an adjournment of its application on 9 October 2009;

(j) the effect of advice given by the registry to Ms Saldanha about the filing of applications and related matters had been to deny Ms Saldanha natural justice;

(k) Ms Saldanha had been denied natural justice by the learned magistrate not dealing with her application to strike out Fujitsu's Application;

(l) Ms Saldanha had been denied natural justice by the orders for costs made by her Honour.

54 Although Wager DCJ considered the grounds of appeal under the rubric of natural justice, her Honour adopted a liberal approach that sought to deal with the substance of Ms Saldanha's complaints rather than to strictly confine the appeal to the hearing and bias rules that traditionally form the substance of the requirement to accord natural justice. Ms Saldanha represented herself in the appeal and no doubt her Honour hoped that she might finally resolve the disputes between Ms Saldanha and Fujitsu by adopting a broad approach.

55 Some of Ms Saldanha's complaints concerning the 'advice' that she claimed she was given by the staff of the Magistrates Court have already been noted. She stated that she was given inconsistent advice by the staff about filing an application for default judgment (attachment 1, par 7). She further stated that the registry staff listed the hearing of Fujitsu's Application at a time (14 September 2009) that did not comply with r 64 of the Procedure Rules. Consequently, the hearing was adjourned to 9 October 2009 as she had not been given sufficient time to prepare her response to the application. Ultimately, she was ordered to pay the costs of the hearing when she was not to blame for the adjournment (par 9).

56 Ms Saldanha further complained that the registry accepted Fujitsu's response to Ms Saldanha's claim outside the time prescribed by the Procedure Rules. Moreover, the registry staff had refused to allow her to file her application to strike out Fujitsu's Application prior to the hearing scheduled for 14 September 2009. The scheduling of the hearing on 14 September 2009 (and I infer, permitting Fujitsu to file its application and the registry's refusal to allow Ms Saldanha to file her application) was 'extremely unjust' (pars 7 9).

57 The balance of attachment 1 to the originating motion stated in summary that:

(a) Ms Saldanha was unfairly prejudiced by the learned magistrate's decision to permit Fujitsu to be legally represented in the minor case proceedings. Further, Ms Stanton did not refer to any 'legislation or previous cases' at the hearing on 26 October 2009 even though Fujitsu had been granted leave to be represented because of the legal issues that arose in its application (par 19). Moreover, her Honour did not provide assistance to Ms Saldanha (par 10).

(b) Ms Saldanha endeavoured to file a further application to strike out Fujitsu's Application and to amend her claim prior to the hearing scheduled for 9 October 2009. However, the registry staff amended the application by deleting the reference to striking out Fujitsu's claim and providing that the application to amend be heard ex parte. The next day Ms Saldanha was advised by the registry that she could bring an application to strike out Fujitsu's Application. She did not file that application as she was awaiting the outcome of her application to amend her claim (pars 11 14).

(c) The hearing on 9 October 2009 was adjourned despite Ms Saldanha's objection because Magistrate Boon was on leave. Ms Stanton was also unable to attend court on 9 October and the 'substitute lawyer took advantage' of Magistrate Boon's unavailability to obtain a further adjournment (par 15).

(d) The registry accepted Ms Saldanha's application to have Fujitsu's Application struck out on 14 October 2009. However, they did not accept a request that Ms Saldanha's application be heard at the next hearing of the matter (par 16).

(e) Ms Saldanha's application to strike out Fujitsu's Application was not heard by Magistrate Boon on 26 October 2009 notwithstanding a request by Ms Saldanha that her application be heard. The only application that was heard was Fujitsu's Application. The learned magistrate's refusal to hear Ms Saldanha's application was a denial of natural justice (par 18).

(f) Ms Saldanha was denied the opportunity of amending her claim against Fujitsu to ensure that it was not time barred (par 19).

(g) Ms Saldanha's claim was struck out as an abuse of process but there was no provision in the MC (CP) Act or the Procedure Rules conferring power on a magistrate to strike out a claim on that ground (par 20).

(h) The learned magistrate relied on statements made in without prejudice correspondence and an affidavit made by Ms Stanton that was incomplete in striking out Ms Saldanha's claim as an abuse of process (par 21). Further, there was only one claim before the court and Ms Saldanha had advised the court that she did not intend to split her claim (par 21).

(i) The learned magistrate erred in finding that an intention by Ms Saldanha to split her claims constituted an abuse of process. Each claim for compensation for working more than 37.5 hours per week was a separate cause of action. Separate claims could have been made and might have been consolidated. The only consequence of consolidation would have been that the matter would have been removed from the minor case list if the total amount of the consolidated claim exceeded $10,000 (par 22). However, it was unlikely that the total amount of the claim could ever exceed $10,000 given that part of the claim was timebarred (par 23).

(j) The learned magistrate acted unfairly in refusing to allow Ms Saldanha's application to amend her claim in circumstances where Fujitsu had not 'played by the rules' (par 24).

(k) The learned magistrate erred in awarding costs. Section 31(3)(b) of the MC (CP) Act provides for costs to be awarded where the unsuccessful party's claim was wholly without merit. Her Honour could not have reached a conclusion that Ms Saldanha's claim was wholly without merit as a statement of claim had not been submitted (par 25). Further, the Procedure Rules made no reference to costs (the suggestion being, I think, that the learned magistrate lacked the power to order costs) (par 28).

58 The remainder of attachment 1 contained further complaints about the assessment of Fujitsu's costs and concerns about the procedures adopted in the Magistrates Court, the information provided to litigants in that court and the conduct of the court's registry staff. The complaints regarding the assessment of costs concerned the scheduling of the assessment (including a refusal by the registrar who performed the assessment to defer the assessment until after Ms Saldanha's appeal to the District Court was heard) and a suggestion that the registrar who was responsible for undertaking the assessment may not, in fact, have actually performed the assessment.

59 As Beech J observed when this matter first came before him, there is not a complete correlation between the available grounds of appeal under s 32(3) of the MC (CP) Act and the grounds for review under s 36(1)(c) of the Magistrates Court Act. However, his Honour noted that, '[n]evertheless, in this case, when regard is had to what is said in the grounds for review order, the overlap is very substantial indeed. The District Court has heard argument on many of the grounds sort to be agitated in this application for a review order' [34]. It was for that reason that his Honour adjourned Ms Saldanha's application to enable her to consider whether she wished to appeal from the judgment of Wager DCJ. In doing so, his Honour observed:

If Ms Saldanha contends that the District Court erred in relation to those matters then, it seems to me, she should appeal against the decision of the District Court, rather than attempt to run the same arguments in this application for review. As a general rule at least, I do not think the legislature intended, in enacting s 36 of the Magistrates Court, for an application for a review order to be an opportunity to reagitate arguments that have been unsuccessfully put in an appeal against the order sought to be reviewed. Consequently, if there is no appeal against the District Court decision, that decision will stand as a very formidable obstacle to those of Ms Saldanha's contentions in this application which echo arguments in the District Court appeal. [35]

60 I agree entirely with those comments notwithstanding the outcome of this application.

The principles to be applied in deciding whether to make a review order

61 Order 56A RSC does not specify the test for determining whether a review order should issue. The obvious analogy is with an application for an order nisi: see Snook v Lawrence [2007] WASC 111; Re Greg Cockram Magistrate of the Magistrates Court at Perth; Ex parte Miller [2009] WASC 350. The test for the grant of a show cause order has most often been expressed as a requirement that the applicant show an arguable case for the relief sought: see for example, Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282. The Chief Justice in McKay v Commissioner of Police [2006] WASC 189 suggested that 'it would be an inappropriate exercise of the powers conferred upon ... a judge to issue an order nisi unless he or she were satisfied that the arguable case had some reasonable prospect of success' [3]. In Woodley v Minister for Indigenous Affairs [2009] WASC 251 the Chief Justice further explained his view of the appropriate test:

[P]erhaps it would be preferable to formulate the test in terms of, firstly, the applicant satisfying the court that there is an arguable case and, secondly, advancing the proposition that if that case had no reasonable prospect of success it would be inappropriate to grant relief even though there was an arguable case [37].

62 That is the test that I propose to apply to Ms Saldanha's application.

63 Section 13 of the MC (CP) Act concerns the court's duties in dealing with cases and making rules. It provides, among other things, that the court is to ensure that cases are dealt with justly including by, so far as is practicable, ensuring that the parties are on an equal footing. Section 14(1) of the Act provides that the procedure to be followed in a case is that set out in the rules of the court unless another written law provides otherwise. Section 16 of the Act confers wide powers on the court to control and manage cases and trials.

64 Section 17 of the Act expressly confers a power on the court to strike out all or part of a case statement if, among other things, it does not disclose 'any reasonable grounds for any claim' or it is an abuse of the court's process. The court may give judgment where a case statement is struck out but it retains a power to subsequently set aside that judgment (s 17(3)).

65 Section 27 identifies the objects of the minor cases procedure. Subsection (1) provides that the primary object of the court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties. Subsection (4) provides that the court must deal with the minor case if it is unable to achieve a settlement. The court may at any stage of the proceedings do all things and take all such steps as it considers appropriate to achieve that primary object (s 27(2)).

66 Section 28 of the Act states that the court must deal with a minor case in accordance with the minor cases procedure unless an order has been made under subsections (2) or (3) (those sections concern the circumstances in which the court may require a minor case to be dealt with under the court's general procedure). Section 29 provides that the court is to act with as little formality as it thinks is reasonable when dealing with a minor case. The court is not bound by the rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit.

Complaints concerning the conduct of the registry staff

67 The first group of complaints made by Ms Saldanha concerns advice said to have been given by registry staff or 'decisions' that they made regarding the filing and listing of Ms Saldanha's applications to enter judgment in default against Fujitsu or to strike out Fujitsu's Application or in the listing of Fujitsu's Application for hearing. Those matters are not susceptible to certiorari as the registry staff do not exercise a public power a statutory power in performing the purely administrative tasks that are necessarily involved in processing the documents by which the court's procedures are engaged, in facilitating the organisation of the court's business and in dealing with members of the public. As to the kind of decisionmaking power that is susceptible to judicial review, see Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750.

68 I should briefly add in relation to the complaints made by Ms Saldanha that obviously it is not for the registry staff to decline to accept a response to a claim where judgment has not been entered in default. The staff acted correctly in permitting Fujitsu to file its response even if it was lodged more than 21 days after service (and assuming that the claim was served according to r 60 of the Procedure Rules; that is a matter that was disputed by Fujitsu). In any event, the court has power under r 42 of the Procedure Rules to set aside a judgment given in default. A judgment entered in favour of Ms Saldanha would almost certainly have been set aside if Fujitsu had applied under that rule in the circumstances of this matter.

69 Finally, Ms Saldanha complains that the way in which matters were listed resulted in her being liable to pay the costs of Fujitsu's appearance at the hearing on 14 September 2009. That was not a matter that was raised with the learned magistrate when she made her order for costs. It is not a matter that is susceptible to judicial review.

The decision to permit Fujitsu to be represented

70 Section 30(2) MC (CP) Act provides that a party to a minor case is not entitled to be represented before the court. However, a corporation may be represented by one of its officers or by one of its employees who has written authority from one of its officers to do so (s 30(2) read with s 44(2)). Section 30(4) provides that except in the case of a consumer/trader claim, the court may give a party leave to be represented by a legal practitioner where, among other things, the court is satisfied that it is in the interests of justice for the party to be represented. The reference to the interests of justice indicates that the court is given a wide discretion to grant leave for a party to be represented (as would be expected).

71 The learned magistrate carefully drew a distinction between representation for Fujitsu in its application to strike out Ms Saldanha's claim and representation at any trial of the claim. Her Honour held that Fujitsu should only be permitted to be represented on its application having regard to what she characterised as the 'technical legal arguments' raised by that application (ts 6). Ms Saldanha's complaint is that she was placed at an unfair disadvantage in contesting the application as a result of her Honour's ruling.

72 In my view, it is not reasonably arguable that certiorari would lie to quash that decision as:

(a) the Procedure Rules expressly permit a magistrate to allow a party to be legally represented in a minor case;

(b) the leave granted by the learned magistrate was limited to representation on Fujitsu's Application;

(d) it cannot be inferred from the decision that the learned magistrate must have erred in the exercise of her discretion in a way that would attract the supervisory jurisdiction of the Supreme Court.

73 Ms Saldanha's originating motion assumed that a denial of natural justice or some other form of error could be demonstrated merely by her complaint that she was placed at a disadvantage because Fujitsu was represented. However, the Act confers a discretion on a magistrate to allow a party to be represented notwithstanding that, ordinarily, the unrepresented party will consider themselves to have been placed at a disadvantage as a result. The discretion must be exercised having regard to s 13(2) MC (CP) Act and the objectives of the minor cases procedure. There are, however, ways in which a magistrate can ensure that the parties remain on an equal footing even if leave is granted for one of them to be legally represented. That may require the court to ensure that the unrepresented party fully appreciates the issues that arise for determination in a claim.

74 This aspect of Ms Saldanha's originating motion was considered by Wager DCJ at [50] - [51]. I respectfully agree with her Honour's conclusion that Ms Saldanha was not denied natural justice by the learned magistrate's decision.

75 The hearing of Fujitsu's application was adjourned on 9 October 2009 by Magistrate Lane for two reasons: first, because it was more appropriate for the application to be determined by Magistrate Boon having regard to its history and second, because Ms Stanton was unavailable to appear on that day. There is no arguable case that certiorari would be granted to set aside Magistrate Lane's decision:

(a) the decision was plainly made within jurisdiction;

(b) her Honour had a wide discretion on whether to grant an adjournment and the matters that she took into account were relevant to the exercise of that discretion.

76 Wager DCJ considered whether Ms Saldanha was denied natural justice by Magistrate Lane's decision at [53] of her reasons. I respectfully agree with her Honour's conclusion that Ms Saldanha was not denied natural justice.

The power to strike out the claim as an abuse of process

77 Section 17 of the MC (CP) Act provides a complete answer to the suggestion in attachment 1 to the originating motion that the learned magistrate had exceeded her jurisdiction by striking out Ms Saldanha's claim as an abuse of process.

The use made of correspondence between Ms Saldanha and MDS

78 It is evident from their contents that the letters written by Ms Saldanha and MDS that were annexed to Ms Stanton's Affidavit were not exchanged in the course of negotiations to settle Ms Saldanha's claims. Accordingly, the letters did not contain without prejudice communications.

Fujitsu's Application and Ms Saldanha's application to amend - the hearing on 26 October 2009

79 The following matters are relevant to a possible review of the learned magistrate's orders made at the hearing on 26 October 2009:

(a) To the extent that the decisions involve the exercise of a discretion, the question is not whether a judge reviewing the decision would have exercised the discretion in a different way. The question is whether there is an error disclosed that is susceptible to judicial review.

(b) As the learned magistrate observed, it was clear from the affidavit material that Ms Saldanha's claim that she was entitled to be compensated for working for more than 37.5 hours per week covered a period well beyond that alleged in her claim (up to April 2007 or perhaps, March 2008). Accordingly, it was not suggested that any claim for compensation made by Ms Saldanha would necessarily be time barred and it could not be said that granting Ms Saldanha an opportunity to amend her claim would be futile. Fujitsu's argument was to the effect that an amendment could not be made as a matter of law.

(c) There was no submission made by Fujitsu that the Salary Claim was time barred. Those claims were lost on the striking out of the claim on the ground that it was an abuse of process.

(d) If the learned magistrate made no error that was susceptible to judicial review in striking out the claim as an abuse of process, any complaint about her decision not to hear Ms Saldanha's application to amend her claim had no practical consequence. That is not to deny, however, the connection between the application to amend and Fujitsu's Application.

(e) Equally, any error affecting the decision to strike out the claim as an abuse of process would have no practical consequence if the claim ought to have been struck out as time barred and incapable of amendment.

80 There are two aspects of the decision to strike out Ms Saldanha's claim that should be emphasised.

81 First, as has been noted, Ms Saldanha stated in the course of the hearing, in effect, that she was prepared to amend her claim to ensure that it was not time barred, to confine her claim to less than $10,000 (the limit of the minor case jurisdiction) and to not bring any further claims (that is, to not split her claims). She emphasised on several occasions that she now intended to bring only one claim if permitted to amend (ts 17, 19, 23, 24 and 28).

82 The learned magistrate dismissed that submission by referring to correspondence between Ms Saldanha and MDS and concluding that there was 'nothing before me on oath from the claimant which shows what she's now saying that she only ever intended to limit herself to the minor case amount'. As I read the transcript, Ms Saldanha accepted at the hearing that she could not in the future bring successive claims - indeed, she went so far as to indicate that the only claim that she could bring that was not time barred was likely to be for an amount that was less than the minor case limit. Ms Saldanha's statements were about the future conduct of her claim; in effect, she accepted Fujitsu's contentions about the potential abuse associated with multiple claims at the hearing. The learned magistrate's ruling, however, concerned Ms Saldanha's intention at the time that she commenced her claim.

83 The second and closely related aspect of the learned magistrate's decision that is significant is that Fujitsu's allegations of abuse of process primarily concerned something that Ms Saldanha had (on Fujitsu's case) intimated that she intended to do but had not actually done. She had not commenced multiple proceedings; the claim that was struck out was her only claim in the Magistrates Court.

84 The question of whether Ms Saldanha had been denied natural justice by the learned magistrate's decision to strike out Ms Saldanha's claim as an abuse of process was considered by Wager DCJ. Her Honour also considered whether the magistrate had failed to accord procedural fairness by not hearing sufficient argument on that question.

85 Wager DCJ identified the principles relevant to abuse of process by reference to the decision of Sleight DCJ in Wise v Proprietors of Strata Plan 21513 [2009] WADC 115 which, in turn, referred to the reasons delivered by Master Newnes (as his Honour then was) in Lee v St George Bank Ltd [2006] WASC 221. Master Newnes referred in his decision to wellknown authorities on abuse of process such as Walton v Gardiner (1993) 177 CLR 378; R v Carroll (2002) 213 CLR 635 and Rogers v The Queen (1994) 181 CLR 251.

Her Honour Magistrate Boon found that Ms Saldanha intended to rely on a claim where the value of the claim and the relief sought exceeded the minor cases jurisdictional limit. It was open to her Honour to find that if more than one claim proceeded then judicial resources would be wasted, witnesses would be required to give their evidence on multiple occasions and the parties would be uncertain about the precise case that they were to meet on each occasion. It was also open to her Honour to determine that Ms Saldanha's intention was contrary to the legislative intent of the minor case procedure. [39] (emphasis added)

87 Her Honour further held that Ms Saldanha had not been denied natural justice by the manner in which the learned magistrate had conducted the hearing of Fujitsu's application. She noted that the application was supported by an affidavit and that Ms Saldanha had not filed an affidavit in reply. Her Honour held that:

Although self-represented, Ms Saldanha was aware that evidence could be placed before the court by affidavit ... the application to strike out the claim was adjourned for two weeks for legal advice at Ms Saldanha's request. The period of time before the substantive hearing of the application ended up being extended to a period of six weeks which gave Ms Saldanha sufficient opportunity to obtain legal advice and to file evidence to be considered by Magistrate Boon if she chose to do so. [32]

88 Her Honour also held that Ms Saldanha had not been denied natural justice by the decision to dismiss Ms Saldanha's application to amend her claim. She understood the learned magistrate's findings to be that Ms Saldanha was required to file a new claim as:

(a) the time barred claim could not be 'cured by changing the dates of the claim because it involved a totally different period of employment and a different period of underpayment involving different sums would then be pleaded' [25];

(b) it was not Fujitsu's obligation to clarify Ms Saldanha's case and a new claim would make the terms of the claim clear [25];

(c) Fujitsu had a right to know the claim that it was to meet and it was entitled to 'be clear on the particulars of the claim' [26];

(d) Fujitsu would have been 'compromised' in relation to the claim if the amendment had been allowed [26].

89 It must be emphasised that the comments that follow reflect only a preliminary view intended to do no more than indicate why I consider that a review order should be made having regard to the test earlier identified in the reasons. The comments are not intended to express a concluded view on the merits of Ms Saldanha's complaints. However, it is necessary to express my reasons for granting a review order more fully than might ordinarily be required given the history of this matter, the observations of Beech J at the first hearing of Ms Saldanha's application and Fujitsu's submissions concerning the effect of Ms Saldanha's appeal to the District Court.

90 Several considerations are, in my view, relevant to whether a review order should be made.

91 First, the learned magistrate made a finding of fact about Ms Saldanha's intention at the time that she made her claim that the claim was 'an attempt to circumvent the requirements that the claims be dealt with at the same time by using this as a vehicle' (ts 26). That finding explains why her Honour struck out the claim. However, her Honour also observed that Ms Saldanha could bring a new claim if she wished and that it was a matter for her whether the claim was made in the minor case division of the court (ts 27). Subject to the limitation question, there would be no purpose served by striking out Ms Saldanha's claim while at the same time indicating that a new claim could be brought unless the summary dismissal of the claim was considered to be the appropriate sanction for the abuse alleged by Fujitsu.

92 Second, McHugh J observed in Rogers that (at 286):

Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:

(1) the court's procedures are invoked for an illegitimate purpose;

(2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or

(3) the use of the court's procedures would bring the administration of justice into disrepute.

93 Multiple proceedings commenced against the same party in respect of the same or a similar controversy will ordinarily be unfairly oppressive to that party. Further, there is a public interest in the finality of litigation (see, for example, D'OrtaEkenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 and Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589) and in the efficient allocation of scarce judicial resources. Multiple proceedings between the same parties over the same matter may also bring the administration of justice into disrepute by, among other things, raising the possibility of inconsistent decisions.

94 However, such concerns ordinarily arise on second or subsequent proceedings being commenced. It is usually at that point that an abuse of this kind will be manifested. The undesirable consequences rightly identified by Wager DCJ in the passage of her reasons reproduced earlier at [86] flow from multiple proceedings having been commenced - as her Honour expressly recognised.

95 Third, that appears to have been recognised by Fujitsu at the time that it brought its application. In its written submissions accompanying the application, Fujitsu contended that the action ought to be struck out 'unless the claimant is able to state that she does not intend commencing any other claims'.

96 Fourth, consistent with Fujitsu's written submissions, the correspondence from MDS to Ms Saldanha objected to her possibly commencing multiple proceedings; even the letter written after Ms Saldanha had filed and served her claim requested advice as to whether she intended to make further claims. In my view, Ms Saldanha was not put on notice in the correspondence that Fujitsu would contend that her existing claim should be struck out because of her (alleged) intention at the time that she commenced that claim. Rather, she was informed that Fujitsu would seek to have successive claims struck out or consolidated. Further, Ms Saldanha was not advised that Fujitsu would still move to have her existing claim struck out even if she made a statement to the effect referred to in Fujitsu's submissions. Moreover, Fujitsu did not suggest in its submissions that a statement by Ms Saldanha would not be accepted or that she would be required to confirm any statement on oath.

97 Fifth, a decision to strike out a claim that seeks for the first time to prosecute a cause suggests that it has been found that the claim was made for an improper purpose of the kind coming within the first category of abuse identified by McHugh J in Rogers.

98 Finally, limitation provisions generally bar the remedy rather than extinguish the plaintiff's right. Consequently, a statement of claim will not ordinarily be struck out on the ground that the limitation period expired before the issue of a writ as it is for the defendant to plead the statute: PR Handford, Limitation of Actions (3rd ed, 2011) [5.10.2530]. There may, however, be cases where it is appropriate to strike out a statute barred claim as being frivolous, vexatious or an abuse of process 'where it would be a waste of time and money to allow the plaintiff to proceed' (Handford, [5.10.2530], fn 5).

99 I have respectfully concluded that, arguably, the learned magistrate erred in striking out Ms Saldanha's claim having regard to those considerations:

(a) It is not immediately apparent why Ms Saldanha's claim had to be struck out to satisfy the requirement that her claims be dealt with at the same time - it was the only claim that she had commenced and Ms Saldanha stated at the hearing on 26 October 2009 that she would not bring any further claims. It would appear in those circumstances that the order was not necessary to prevent Fujitsu from being unfairly harassed by multiple proceedings or so as to avoid the court's procedures being used in a way that would bring the administration of justice into disrepute (the second and third categories of abuse identified by McHugh J in Rogers). Ms Saldanha's statements at the hearing recognised and addressed those concerns. The learned magistrate's observation that Ms Saldanha could bring a fresh claim begs the question - why could she not maintain her existing claim given that she had stated that she would not bring further claims? It is acknowledged that one answer to that question concerns whether the claim was time barred but her Honour appears to have considered that striking out the claim was the appropriate response to the abuse that she perceived had occurred.

(b) It is arguable that Ms Saldanha was not motivated by an improper purpose of the kind that would warrant her claim being struck out even if it is accepted that she intended to bring further claims to avoid the risk of being ordered to pay Fujitsu's costs. Ms Saldanha's conduct and the exercise of the court's discretion to strike out her claim must be assessed in the context of:

(i) Fujitsu's correspondence and submissions which did not clearly indicate that Ms Saldanha's intention at the time that she commenced any claim would, in itself, be sufficient to constitute an abuse - Fujitsu's primary position was that there would be an abuse if Ms Saldanha commenced multiple claims;

(ii) the history of Ms Saldanha's dispute with Fujitsu, the amount in issue and Ms Saldanha's personal circumstances it was understandable that Ms Saldanha would wish to avail herself of a 'no cost' jurisdiction if possible;

SALDANHA -v- FUJITSU AUSTRALIA LTD [No 2] [2011] WASC 360 (22 December 2011)

At a glance

Court

Decision date

Before

Source

Judgment (238 paragraphs)