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
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
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
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)