Ex Parte

Case [2019] WASC 358


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   EX PARTE SNOOK [2019] WASC 358

CORAM:   SMITH J

HEARD:   2 OCTOBER 2019

DELIVERED          :   4 OCTOBER 2019

FILE NO/S:   CIV 2699 of 2019

EX PARTE

PIPPA SNOOK

Plaintiff


Catchwords:

Application for review under s 36 of the Magistrates Court Act 2004 (WA) - Application for judicial review - Application to adjourn hearing of applications to set aside default judgment refused by a Magistrates Court - Natural justice - No jurisdictional error demonstrated

Legislation:

Magistrates Court Act 2004 (WA), s 36
Rules of the Supreme Court 1971 (WA), O 56A

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff : In person

Solicitors:

Plaintiff : In person

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

ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd [2000] WASC 214

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Arabzadeh v Wasim [2018] TASSC 30

Ashwin v Housing Authority [2019] WASC 144

Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38

Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; (2011) 83 NSWLR 23

Certain Children v Minister for Families and Children [No 2] [2017] VSC 251; (2017) 266 A Crim R 152

Defendi v Szigligeti [2019] WASCA 115

Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority [2009] VSCA 171; (2009) 25 VR 290

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859; (2002) 122 FCR 78

Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174

Kazolis v Registrar of Firearms [2018] ACTSC 89; (2018) 331 FLR 395

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41

Preston v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] [2004] FCA 107

Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22; (2001) 206 CLR 57

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116

Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360

Secretary, Department of Human Services v Children's Court of Victoria [2012] VSC 422

Shilkin v Taylor [2011] WASCA 255

Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291

South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378

Starrs v Retravision (WA) Ltd [2012] WASCA 67

Taciak v Lyons [2012] WADC 61

Telstra Corporation Ltd v Smith [2008] FCA 1859

WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93

SMITH J:

1.0 The application

  1. The court has before it a notice of originating motion, filed by Ms Pippa Snook on 25 September 2019, for…

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AGLC
Ex Parte [2019] WASC 358
Case
[2019] WASC 358
Decision Date

CaseChat Overview and Summary

In the case of Ex Parte, the applicant sought judicial review of a decision by the Magistrates Court to refuse an application to adjourn a hearing of applications to set aside a default judgment. The matter was heard in the Supreme Court of Western Australia. The applicant argued that the refusal to adjourn amounted to a breach of the principles of natural justice. The court was required to determine whether the refusal to adjourn the hearing constituted a breach of natural justice and whether the application for judicial review should be granted.

The court considered the nature of the decision being reviewed, which was the refusal to adjourn the hearing. It noted that natural justice requirements are less likely to apply to preliminary decisions. However, if a decision has finality and immediate consequences for the individual, the more likely it is that natural justice requirements apply. In this case, the court held that the refusal to adjourn the hearing was a preliminary decision, which formed part of a broader decision-making process. As such, the opportunity for an adequate hearing was available in later stages of the process.

The court found that there was no jurisdictional error demonstrated in the refusal to adjourn the hearing, and therefore, the application for judicial review should be dismissed. The court held that the decision to refuse an adjournment did not breach the principles of natural justice. The applicant's argument that the refusal to adjourn was unjust was rejected by the court.

The final orders of the court were that the application for judicial review be dismissed, and the applicant pay the respondent's costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Minister for Immigration and Multicultural Affairs v Miah, McHugh J considered an argument that the requirements of natural justice did not apply because a right of appeal lay from the relevant decision. In that context, his Honour identified the following as a factor that 'can often be relevant in determining whether such a right … exclude[s] or limit[s] the rules of natural justice':[21]Nature of the original decision: preliminary or final. Natural justice requirements are less likely to attach to decisions that are preliminary in nature. Examples are decisions to lay charges or commence disciplinary proceedings. The closer a decision is to having finality and immediate consequences for the individual, however, the more likely it is that natural justice requirements apply. (footnote omitted)[21] Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22; (2001) 206 CLR 57 [146]. In Ainsworth v Criminal Justice Commission, Mason CJ, Dawson, Toohey and Gaudron JJ held that 'where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness"'.[22] In Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority, after referring to this principle, Warren CJ, Nettle and Redlich JJA stated:[23]As a rule, a preliminary decision which forms part of a broader decision-making process will not attract a right to be heard if the opportunity for adequate hearing is available in later stages of the process.Of course, there are exceptions. Some preliminary decisions may lead to immediate consequences of such importance to a person affected that the decision-maker is obliged to afford the person a right to be heard before making the decision. Ainsworth v Criminal Justice Commission, Annetts v McCann and Johns v Australian Securities Commission are all examples of this kind. (footnotes omitted)[22] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 578, citing South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, 389 (Mason CJ).[23] Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority [2009] VSCA 171; (2009) 25 VR 290 [12] ‑ [13]. In Rowe v Stoltze, Newnes JA (with whom Pullin and Murphy JJA agreed) stated:[24]What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. (original emphasis)