JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA 
IN CIVIL 

LOCATION	:	PERTH 

CITATION	:	WILSON -v- WESTPAC BANKING CORPORATION [2011] WADC 13 

CORAM	:	BRADDOCK DCJ 

HEARD	:	21 JANUARY 2011 

DELIVERED	:	4 FEBRUARY 2011 

FILE NO/S	:	APP 65 of 2010 

BETWEEN	:	SANDRA LYNNE WILSON
Appellant
 
AND
 
WESTPAC BANKING CORPORATION
Respondent 

ON APPEAL FROM: 

Jurisdiction	:	MAGISTRATES COURT OF WESTERN AUSTRALIA 
Coram	:	MAGISTRATE BOON 
File No	:	ACTION 0872 of 2009 

Catchwords:
Appeal from Magistrates Court - Out of time - Mandatory time limit - Extension of time - Want of prosecution 
Legislation:
Magistrates Court (Civil Proceedings) Act 2004, s 40(3)
District Court Rules 2005, r 51, r 57 
Result:
Appeal dismissed 

Representation:
Counsel:
Appellant	:	In person
Respondent	:	Mr A D McDonald 
Solicitors:
Appellant	:	Not applicable
Respondent	:	DLA Phillips Fox 

Case(s) referred to in judgment(s):

McKeon v Knapton [2009] WADC 170
Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237
Wise & Anor v The Proprietors of Strata Plan 21513 [2008] WADC 80

BRADDOCK DCJ:  
Introduction
1		On 9 April 2010, Magistrate Boon in the Magistrates Court of Western Australia at Perth struck out a claim, filed by the appellant, Mrs Wilson.  The matter has a long and somewhat complex history.
2		The proceedings began their life as a general procedure claim number 872 of 2009 in the Fremantle Magistrates Court, brought by Mrs Wilson against 'Westpac Bank' and one Leisa Neylon.  On 10 August 2009, Mrs Wilson sought default judgment for an unliquidated amount and on 2 September Fremantle Magistrates Court dismissed the claim against Ms Neylon, amended the claim to $50,000, ordered default judgment for the original amount in $30,652, gave 'Westpac Bank' leave to defend in the amount of $19,348 and ordered the service of the amended claim on 'Westpac Bank' within 14 days.  On 24 September 2009, the respondent lodged an intention to defend the proceedings in the Magistrates Court, sought that they be transferred to Perth, and lodged an application seeking default judgment be set aside.
3		On 22 September 2009, the claim was transferred to the Perth registry of the Magistrates Court.  It came on for further hearing on 4 December 2009.  On that occasion, the court ordered the default judgment to be set aside.  Three days later, on 7 December 2009, Mrs Wilson lodged an appeal, 92 of 2009, against the decision of the Magistrates Court of 4 December 2009 that her default judgment be set aside.  On 30 December 2009, she sought to amend the name of the then defendant from 'Westpac Bank' to the name of the respondent; Westpac Banking Corporation (the Bank).  On 11 January 2010 the court substituted the Bank as a defendant in the Magistrates Court proceedings and ordered that Mrs Wilson pay the Bank's costs of the application to set aside, forthwith.
4		On 18 January 2010, Mrs Wilson filed and served a statement of general procedure claim against the Bank.  The Bank on 28 January, brought an application to strike out that statement of claim, whilst Mrs Wilson, on 9 February 2010, brought an application for default judgment for failure to file a defence to the statement of claim.
5		On 22 February 2010 the Magistrates Court heard the Bank's first strike out application, held that the statement of claim was embarrassing and ordered Mrs Wilson to file a proper statement of claim.  On 15 March 2010, Mrs Wilson did file and serve a second statement of claim in the proceedings.  On 16 March, the Bank brought a second application, again to strike it out.  On 9 April 2010 that application to strike out came before the Magistrate Boon in Perth.  On that occasion she struck out the second statement of claim and entered judgment for the Bank.
The appeal
6		It is against this decision that Mrs Wilson now seeks to appeal.  She filed her notice of appeal to the District Court on 1 September 2010; appeal 65 of 2010.  In the meantime, on 3 August 2010, his Honour Judge Stevenson dismissed appeal number 92 of 2009 and ordered Mrs Wilson to pay the Bank's costs of that appeal.
7		The Bank filed an answer to this current appeal on 22 September 2010 and then on 6 December 2010 filed a chambers summons seeking to dismiss the appeal on various grounds.  The application was supported by an affidavit sworn by Aaron David McDonald.  Subsequently, it appears that Mrs Wilson filed a notice of entry of appeal on 31 December 2010, although the date of filing of the document on its face is given as 13 August 2010.
The grounds of the strike out application
8		The Bank seeks that the appeal be struck out for a number of reasons:
1.	pursuant to r 54(3) of the District Court Rules; for want of prosecution;
2.	in the alternative, pursuant to s 40(3) of the Magistrates Court (Civil Proceedings) Act, alternatively pursuant to r 51(4) of the District Court Rules; for being filed outside the 21 day appeal period;
3.	in the alternative, struck out pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act; alleging the costs to be disproportionate to the claim;
4.	in the alternative, pursuant to s 43(4) of the Magistrates Court (Civil Proceedings) Act; due to the form of the grounds of appeal.
9		In the alternative, the Bank seeks an order that Mrs Wilson give security for costs of the appeal in the sum of $3,000 by payment into court, pending which all proceedings be stayed.
10		When the matter came on for hearing, the Bank relied upon written submissions on 12 January 2011.  Mrs Wilson handed up, at the conclusion of her oral submissions, a summary of those submissions setting out the grounds upon which she had opposed the application.  Unfortunately these submissions tended to address the substance of the claim rather than the grounds of the current application.
The proposed extension of time
11		The original of the notice of appeal filed on 1 September 2010 bears, in handwriting, the additional words 'seek leave to appeal out of times'? [sic].
12		The first issue is whether the court has power to extend time in relation to these proceedings.  Section 40 of the Magistrates Court (Civil Proceedings) Act provides a right of appeal to this court from a decision of a magistrate.  By s 40(3) it provides:
The appeal must –
(a)	be commenced within 21 days after the date of judgment; and
(b)	be conducted in accordance with rules of court made by the District Court.
13		There is no express provision in the Magistrates Court (Civil Proceedings) Act empowering this court to enlarge the time within which to institute appeal proceedings.  Section 40(3)(a) is mandatory in its terms.
14		Rule 51(4) of the District Court Rules (the Rules) provides:
A notice of appeal must be filed and served within 21 days after the date of the appealable decision.
15		There is nothing expressed either in the Rules which empowers this court to extend the time limit.  There is nothing inconsistent between the Rules and the Act in this regard, the Rules providing for service in the same time period.  Rule 57 enumerates the extensive powers of this court on appeal, but does not include the power to extend time for the filing of such an appeal.
16		The Bank relies upon the decision of McKeon v Knapton [2009] WADC 170.  In that case, Sweeney DCJ considered the same issue in relation to an appeal from a Magistrates Court decision, arising out of a motor vehicle accident.  Sweeney DCJ, having considered and contrasted various other appeal provisions in West Australian jurisdictions, including the Supreme Court (Court of Appeal) Rules 2005, the State Administrative Tribunal Act 2004 and the Criminal Injuries Compensation Act 2003 concluded that there was no power to extend time in relation to an appeal under s 40 of the Magistrates Court (Civil Proceedings) Act.
17		Sweeney DCJ also considered a previous decision of this court in Wise & Anor v The Proprietors of Strata Plan 21513 [2008] WADC 80, in which Keen DCJ came to a contrary conclusion.  I am not persuaded by the reasoning of Keen DCJ and respectfully agree with Sweeney DCJ, that the mandatory 21 day time limit is prescribed by the principal legislation.  It is not a period provided by subordinate legislation, such as the rules of the Supreme Court or the District Court, authorising the filing of the appeal.  The primary legislation both creates the right of appeal and prescribes its operation by time.  This is in distinction to the provisions of the other jurisdictions previously referred to, which may contain express power to extend time, for example, the Criminal Appeals Act 2004, s 28(3).  Alternatively, the time limits are provided in the subsidiary legislation, for example, the Supreme Court (Court of Appeal) Rules 2005, which provide:
Unless another written law expressly provides otherwise, any other appeal to the Court of Appeal must be commenced within 21 days after the decision being appealed.
18		Those rules may be read in conjunction with r 5(4) and O 3 of the Rules of the Supreme Court 1971, which provide for extensions of time.
19		Sweeney DCJ was assisted in her consideration of the issue by the case of Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237, where the right of appeal was found in s 54 of the Government and Related Employees Appeal Tribunal Act 1980, which provided that in s 55(1):
An appeal under s 54 shall be made within 21 days after the date of the tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the Rules of the Supreme Court.
20		Whilst reliance was sought to be placed by the appellants in that case on r 4(1) of the Rules of the Supreme Court of NSW, which provided for extension of time, the Court of Appeal found that Parliament had, by fixing a mandatory time limit, shown an intention contrary to the power to enlarge time contained within the rules and that s 55 of the Act was mandatory.
21		The provision of a statutory right of appeal, the placing of the time limit within the primary legislation, and the failure to make any express provision for the extension of time, in conjunction with that time limit, leads to the conclusion that there is no right of appeal after 21 days have elapsed.
22		Accordingly, I would strike out Mrs Wilson's appeal pursuant to s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act.
The Bank's other grounds
23		In the event that I am not correct in relation to the court's ability to extend time in this instance, I propose to consider a number of the other arguments advanced on behalf of the Bank.
Want of prosecution
24		The Bank argues that the appeal should be dismissed pursuant to r 54(3) of the District Court Rules, for want of prosecution.
25		In the context of this litigation, the argument is persuasive.  The appeal was lodged four months after the decision in question on 1 September 2010, and no step was taken to advance the appeal until 31 December 2010, after the Bank had filed the application to dismiss the appeal or strike out the appeal on various grounds, including delay.  Moreover, it is apparent from the face of the notice of appeal that Mrs Wilson was then conscious of being out of time, as evidenced by the handwritten addendum to the notice on page 2 set out above.  Notwithstanding consciousness of the need for 'leave' to appeal out of time, no step was taken by Mrs Wilson until three weeks after the respondent's chamber summons was filed, over eight months after the magistrate's decision.
26		No proper explanation has been given for the delay, either in filing the appeal or in advancing it, once filed.  No affidavit was filed by the appellant in response to the chamber summons of the respondent.  In oral submissions, the appellant asserted she had 'been unwell' and had to 'rest up'.  She also said that she was not aware of the need to file the appeal within time, however the endorsement on the notice would indicate to the contrary.  In the circumstances, a reasonably cogent explanation would be required and is lacking.
27		The substantive case relates to a transaction between Mrs Wilson and the Bank in 2004.  Prior proceedings in the Magistrates Court in this action (872 of 2009) were determined against Mrs Wilson by Magistrate Bromfield and a costs order made in September 2009.  Those costs were assessed and Magistrate Boon ordered costs to be paid forthwith, on 9 April 2010.  As the chronology shows, whilst proceedings in relation to the filing of a proper statement of claim were ongoing, Mrs Wilson also had on foot an appeal against the decision to set aside her first default judgment.  It was only after the dismissal of that first appeal by Judge Stevenson on 3 August 2010, that this appeal was filed.
28		In my opinion, the chronology clearly indicates a lack of proper prosecution, even after the appeal was filed, and the filing of the appeal only after the dismissal of the early appeal clearly indicates an improper prolongation of this litigation.  Had the appeal been validly filed, I would have dismissed it for want of prosecution.
The form of the appeal
29		The appeal purportedly lodged by the appellant is against the order of the magistrate striking out her second statement of claim.  The decision accordingly was a procedural one, the appellant having had the benefit of a previous order permitting her to file a substitute for her first claim which was struck out.
30		An appeal under the Magistrates Court (Civil Proceedings) Act, s 40, is determined on the materials and the evidence that were before the Magistrates Court, plus any other evidence that is admitted by leave.  The appeal is by way of rehearing, and does not necessitate the demonstration of error in the court below.  Accordingly, detailed technical criticism of the grounds of appeal would not normally be required or entertained.  The respondent seeks also to strike out the appeal by reason of its form, pursuant to s 43(4).  In argument, the respondent urged that the proceedings were scandalous in the allegations made against the learned magistrate, and further, that the grounds were not supported by the evidence, were incoherent, and consisted of unparticularised comments.
31		Given the nature of the appeal, it is not necessary to consider in detail the claim for a strike out on those grounds, but I do find that the grounds lack coherence, particularly considering that the appeal is from a procedural order.
Proportionality and costs
32		It is the undisputed case that the Bank has two outstanding costs orders against Mrs Wilson, which are substantially unsatisfied, and that Mrs Wilson has asserted that she has no money and no property.  The Bank argues that the costs of the proceedings are disproportionate to the claim.  I am not in a position to make any findings as to the true quantum of the claim on the materials before me on this application.  The claim was apparently for a liquidated sum of $50,000, which arose out of a transfer of just over $US2,000 in 2004.  There is no evidence to the proper quantum of the claim, against which to balance the costs incurred or the costs likely to be incurred.  However, if I had been persuaded that the appeal should stand, it would undoubtedly have been appropriate for Mrs Wilson to pay outstanding costs orders before the matter advanced any further.  In light of my decision on the filing of this appeal, there is no question of security for costs arising.
Conclusion
33		The appeal having been lodged some four months outside the statutory 21 day period, there exists no right of appeal to this court and the appeal should be struck out on that ground alone.
34		Furthermore, had there been power to extend time, for the reasons set out above, in considering the argument on want of prosecution, I would not have exercised a discretion to extend the time for the filing of the appeal.
35		The appellant should pay the respondent's costs to be taxed.  In the circumstances, I am not prepared to order that they be paid on an indemnity basis.