While the right of appeal can be restricted, it is a right that is firmly embedded in our system of justice. As a result, most people expect that if you receive a decision that you believe is wrong, you should have the right to appeal it to a new decision-maker.
However, there is also a public interest in the determination of disputes, and that there be certainty and finality of claims.
Given the purpose of the minor cases division to enable the resolution of small claims with the maximum degree of efficiency, to act without the need for lawyers, and to minimise complexity and cost, it makes sense to limit avenues of appeal.
Balancing these two competing interests can be challenging. And so, we turn to appeals from the Minor Cases division of the Western Australian Magistrates Court.
The Right of Appeal
The right of appeal from Civil decisions in the Magistrates Court – both Minor Cases and in the General division – is governed by the Magistrates Court (Civil Proceedings) Act 2004 (the MCCP Act). While s. 40(1) of the MCCP Act provides a right of appeal for cases other than minor cases, s. 32 governs minor cases.
There is an important distinction between these two sections. The MCCP Act talks about two types of decisions that can be made in civil actions in the Magistrates Court:
- Decisions in the course of proceedings – typically case management or interlocutory decisions, and
Section 40 permits appeals in matters that are not minor cases in both categories of decisions. Section 32 provides that there is no right of appeal except in limited circumstances, however none of the listed exceptions applies to decisions in the course of proceedings. That means that in minor cases, there is no appeal of case management decisions. Appeals in minor cases are limited to judgments.
However, even for judgments in minor cases, appeals are limited and must meet certain requirements.
Firstly, an appeal against a judgment by a Registrar (typically this will be judgments made administratively) is to a Magistrate, while appeals from judgments made by a Magistrate will be to the District Court.
Secondly, the MCCP Act limits the grounds of appeal against a judgment in a minor case to only the following issues:
- Want of jurisdiction in the case – either the Court or the minor case division lacks the jurisdiction to deal with the claim,
- Want of jurisdiction in the judgment – the decision made is not within the power of the Court, or
- Denial of Natural Justice – typically either a breach of the hearing rule, or the bias rule.
It is not enough that the decision was wrong in fact or law, or even against the weight of the evidence.
Thirdly, Rule 51(3) of the District Court Rules requires that any grounds of appeal must be set out with proper particulars. It is not sufficient to allege the decision was wrong or unfair, it must set out why and/or how the decision was either lacking jurisdiction, or how the appellant was denied natural justice.
A failure to set out proper grounds could result in the grounds being struck out pursuant to either s. 43(4) of the MCCP Act, or Rule 57(2)(b) of the District Court Rules.
Finally, an appeal to the District Court from a decision of a Magistrate is governed by Part 7 of the MCCP Act – which states at s. 40(3) that an appeal must be commenced within 21 days of the date of judgment, unless leave is granted to bring the appeal out of time.
Pursuant to s. 31 of the MCCP Act the general rule is that costs will not be payable in a minor case, however, that does not apply to an appeal to the District Court. In an appeal to the District Court the relevant provision as to costs is found in Rule 59 of the District Court Rules, which provides that the costs of an appeal to the District Court are within the discretion of the Court.
It should not be assumed that an appeal can be commenced and that the parties will be as immune to costs as they normally are in the minor cases division.
An Interesting Quirk
One perhaps unexpected result of the above is that it is surprisingly difficult to appeal from a springing (or self-executing) order, and the judgment which flows from it.
To illustrate, the writer recently obtained a springing order in the minor cases division of the Magistrates Court. The order was made by a Magistrate and provided that the Claimant – who had already been in default of an order to produce witness outlines – file and serve their witness outlines within two weeks, or their claim be struck out and judgment be entered for the Defendants.
Two weeks passed with no outlines, so a few days after the deadline a further order was made by a Registrar striking out the claim, and entering judgment for the Defendants.
The question for the Claimant – who had just had judgment entered against them – was, which decision to appeal?
If they were to appeal the Registrar’s decision granting judgment, they would be bound to appeal to a Magistrate – and likely the very Magistrate who had made the springing order.
If they were to appeal the decision granting the springing order, they would be entitled to apply to the District Court, but the other issues that would arise would be that they were:
- Out of time,
- Unable to appeal because it would be an appeal of a decision made in the course of proceedings, and
- Unable to establish that
- The case or decision was outside the jurisdiction of the Court, as the Court clearly had jurisdiction over the subject matter of the case, and to grant a springing order and dismiss the case; or
- There had been a denial of natural justice, as they had been present when the original programming order for provision of witness outlines were made, and the springing order was a consequence of their default.
In the writer’s situation, the Claimant appealed the judgment to the District Court, and stated in the grounds of appeal that the decision was “unjust and unfair”. The writer sent the Appellant a letter setting out the issues above and advising her that her appeal was unsustainable.
When the appeal was not withdrawn, an application was made for summary judgment, alternatively strike out of all appeal grounds on the basis the grounds were embarrassing, alternatively strike out for want of jurisdiction, plus costs.
The first return of the application for summary judgment was listed together with the first appeal mention. The Registrar, having read the Defendants’ affidavit which annexed our letter pointing out all the issues with the appeal, ordered the appeal struck out for lack of jurisdiction pursuant to s. 65 of the District Court Act. Although we applied for a special costs order on the basis of the letter (which contained a Calderbank Offer), only a normal costs order was made against the Appellant.
And so you see how a Claimant, who had brought a matter in the minor cases division believing they would not be exposed to costs, ended up with their hopeless appeal struck out at the first opportunity, and a negative costs order – on top of their original claim being dismissed.
The lesson to be learned, be sure that you do not have an order made against you in a minor cases claim, because they are very hard to appeal, and bringing an appeal exposes you to the risk of costs.
Another lesson to be learned, while a minor case can probably be brought without legal representation, one needs to be more careful with an appeal that proper advice is sought and the formal requirements complied with. It may not be appropriate for most people to do without legal assistance.
 However, query whether Wednesbury-style unreasonableness may give rise to the sufficient lack of jurisdiction and denial of natural justice.
 And s. 43(7)(e) which applies by virtue of s. 32(2)(a)