JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BOSCOLO -v- IPM ENTERPRISE PTY LTD [2012] WADC 168
CORAM: DERRICK DCJ
HEARD: 19 NOVEMBER 2012
DELIVERED : 30 NOVEMBER 2012
FILE NO/S: APP 10 of 2012
BETWEEN: MARIO BOSCOLO
Appellant
AND
IPM ENTERPRISE PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE MALLEY
File No :CTC 920 of 2010
Catchwords:
Appeal against magistrate's decision to dismiss minor case claim - Rules of natural justice - Denial of natural justice
Legislation:
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Result:
Appeal allowed
Representation:
Counsel:
Appellant: In person
Respondent: Mr T Dionisio (as authorised representative)
Solicitors:
Appellant: Not applicable
Respondent: Not applicable
Case(s) referred to in judgment(s):
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Gamage v The State of Western Australia [2008] WASCA 49
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Re Burton; Ex parte Lowe [2003] WASCA 306
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
DERRICK DCJ:
Introduction
The appellant appeals against the decision of his Honour Magistrate Malley dismissing his minor case claim against the respondent. The issue which the appeal gives rise to is whether the learned magistrate, in dealing with the appellant's claim, denied the appellant natural justice.
The matter has a long and unhappy history. The upset and inconvenience that the matter has caused to the parties is completely disproportionate to the amount that is in dispute. Members of the Magistrates Court and this court have attempted to facilitate the settlement by the parties of their dispute. However, these attempts have proved unsuccessful.
To enable this court to deal with the appeal the Magistrates Court file has been provided to the court pursuant to r 52(3) of the District Court Rules 2005 (WA) (the DCR). I have therefore had access to all documentation that was before the magistrate at the time that he made his decision. I have also had access to the transcript of the trial of the appellant's claim.
Factual background to claim
The appellant is an elderly gentleman. He is well into his 80s.
In or around early November 2008 the appellant's son offered to give to the appellant his unregistered 1991 Toyota Celica. The appellant wanted to know if the Celica could be repaired to a standard that it would be able to be registered, and if it could…
Continue reading Boscolo v IPM Enterprise Pty Ltd
Sign in free to access the full text
- AGLC
- Boscolo v IPM Enterprise Pty Ltd [2012] WADC 168
- Case
- [2012] WADC 168
- Decision Date
CaseChat Overview and Summary
The legal issues in the case were whether the magistrate's refusal to permit Boscolo to tender at least five letters that he had written to IPM Enterprise denied him a reasonable opportunity of presenting his case, and whether the magistrate's decision to dismiss the claim was made in breach of the rules of natural justice. The court was required to determine whether the magistrate's actions amounted to a denial of natural justice.
The court found that the magistrate's refusal to permit Boscolo to tender the five letters that he had written to IPM Enterprise did not deny him a reasonable opportunity of presenting his case. The court held that the magistrate had already seen the letters and had considered them in making his decision. The court also found that the magistrate's decision to dismiss the claim was not made in breach of the rules of natural justice. The court held that the magistrate had acted fairly and impartially in considering the evidence and making his decision.
The final orders of the court were that the appeal be dismissed with costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
What amounts to a reasonable opportunity to present a case depends on the circumstances of the case including the nature of the jurisdiction, the subject matter that is being dealt with and the statutory provisions governing the power or jurisdiction being exercised: National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311 ‑ 312; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 – 585; Re Burton [64]. However, it is clear that as a general rule a person will not be afforded a reasonable opportunity to present his or her case if he or she is not entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 ‑ 592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22]. This entitlement extends to the right to rebut or qualify by further information, and comment by way of submission upon, adverse material from other sources which is put before the decision maker: Commissioner for Australian Territory Revenue v Alphaone (591 ‑ 592); Re Minister for Immigration; Ex parte Palme [22]. The test to be applied when it is alleged that a judicial officer has been, or might be, actuated by bias is whether fair‑minded people might reasonably apprehend or suspect that the judicial officer has pre‑judged or might pre‑judge the case: Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47; Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488 [11]; Gamage v The State of Western Australia [2008] WASCA 49 [54]. The fair‑minded person is one who should be taken to have informed himself or herself on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances: Johnson v Johnson [53]; Gamage v The State of Western Australia [54]. Against this background of principle I return to the appellant's grounds of appeal. This ground of appeal relates to the appellant's above referred to five letters to the respondent dated 15 February 2010, 14 June 2010, 2 August 2010, 8 November 2010 and 17 August 2011, and to the above referred to respondent's letter to the appellant dated 13 August 2010. When the appellant gave his evidence he did refer in general terms and at various points to the letters that he had written to the respondent (ts 7 ‑ 8, 10 ‑ 11, 12, 14). On occasions he indicated that he had copies of the letters and that he could provide them to the court. The magistrate did not ask for the copies of the letters. At the end of the trial, after the magistrate had indicated that he was going to reserve his decision and would publish his reasons at a later date, the interpreter said to the magistrate, 'Mr Boscolo has written five letters, or some letters, and would like to know if you want any exhibits' (ts 19). To this question the magistrate replied, 'No. It doesn't assist me. I have got them all on the file anyway' (ts 19). It is therefore clear that the magistrate expressly refused to permit the appellant to tender at least the five letters that the appellant had written to the respondent. Did this refusal, in the circumstances of the case, deny the appellant a reasonable opportunity of presenting his case?