Frigger v Forbes

Case [2012] WADC 38


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   FRIGGER -v- FORBES [2012] WADC 38

CORAM:   COMMISSIONER GETHING

HEARD:   17 FEBRUARY 2012

DELIVERED          :   14 MARCH 2012

FILE NO/S:   APP 39 of 2011

MATTER                :IN THE MATTER of part 6 the District Court Rules 2005

BETWEEN:   ANGELA FRIGGER

Appellant

AND

STEWART FORBES
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE HAWKINS

File No  :CIV 99360 of 2010

Catchwords:

Appeal - Magistrates Court - Summary judgment - Restitution - Mistake

Legislation:

Magistrates Court (Civil Proceedings) Act 2004, s 18

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr D W Thompson

Respondent:     Mr B W Ashdown

Solicitors:

Appellant:     David Thompson Barrister & Solicitor

Respondent:     Holborn Lenhoff Massey

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

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Ayres v Hughes [2008] WASC 306

Bailey v Marinoff (1971) 125 CLR 529

Butler v Bennett [2007] WADC 107

Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 [14]; (2000) 203 CLR 194

Cold Stores Ltd v Electricity Trust of South Australia (1957) 98 CLR 65

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353

Deputy Commissioner of Taxation (Cth) v Robinswood (2001) 24 WAR 284

Evans v Miller [2011] WASCA 89

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268

Gibson v Perceptions (1988) 6 SR(WA) 255

Goodwin v Phillips (1908) 7 CLR 1

Hall v Hall [2007] WASC 198

Hoskins v Armstrong [2008] WADC 168

House v R (1936) 55 CLR 499

Hunt v Knabe (No 2) (1992) 8 WAR 96

Longdate v Danby [1982] 3 All ER 129

Lydon v Lydon [2007] WADC 122

Lydon v Lydon [2008] WADC 61

Meek v Guardian Assurance Co Ltd (1964) 80 WN 940

Norbis v Norbis (1986) 161 CLR 513

Pearce v Button (1986) 8 FCR 408

Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Racovalis v Rescom Mortgages Pty Ltd [2010] VSCA 55

Ravi v Armerind Pty Ltd [2006] WADC 84

Regan v Gibson [2010] WADC 144

Tremelbye (Selangor) Rubber Co Ltd v Stekel [1971] 1 WLR 226

Ventureaxess Capital Pty Ltd v RM Capital Pty Ltd [2005] WADC 128

Wood v Public Trustee (1995) 14 WAR 251

Wright v Doe d. Tatham [1834] 1 AD & E 4

  1. COMMISSIONER GETHING:  The present appeal is from a decision of her Honour Magistrate Hawkins on 23 May 2011 dismissing an application dated 21 December 2010 by the appellant pursuant to Magistrates Court (Civil Proceedings) Act 2004 (WA) s 18(6) (MCCPA). That subsection empowers a magistrate…

Continue reading Frigger v Forbes

Sign in free to access the full text

Details
AGLC
Frigger v Forbes [2012] WADC 38
Case
[2012] WADC 38
Decision Date

CaseChat Overview and Summary

In the matter of Frigger v Forbes, the parties were involved in a dispute that ultimately reached the court. The nature of the dispute was one of restitution due to a mistake, and it was heard in the Magistrates Court. The court was tasked with resolving legal issues pertaining to the ability to set aside a summary judgment and the application of the Magistrates Court Civil Procedure Act 1992 (WA).

The primary legal issue the court had to decide was whether the Magistrates Court had the power to set aside a summary judgment under section 18(6) of the Magistrates Court Civil Procedure Act. Additionally, the court examined whether the power to extend time limits under the Rules of the Supreme Court 1971 (WA) could be invoked to allow for a re-litigation of a decision. The respondent argued that section 18(6) did not permit re-litigation but rather a limited review to correct errors or address injustices such as fraud or denial of natural justice.

The court reasoned that the power to set aside a summary judgment under section 18(6) of the Magistrates Court Civil Procedure Act is not intended to allow for re-litigation of a decision but serves as a mechanism for correcting errors or addressing instances of injustice, such as fraud or denial of natural justice. The court held that the statutory provision provides a framework for setting aside a perfected judgment, similar to the common law power to set aside a judgment, which is limited to cases involving fraud, fresh evidence, errors on the face of the record, or denial of natural justice.

The court concluded that the Magistrates Court did not have the power to extend time limits under the Rules of the Supreme Court 1971 (WA) to allow for re-litigation of a decision. The court found that permitting such a procedure would undermine the finality of decisions made in the Magistrates Court and could lead to abuse of process. Ultimately, the court upheld the limited scope of section 18(6) in setting aside summary judgments, ensuring that it remains a tool for correcting errors rather than an avenue for re-litigation.

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

Counsel submitted that the power to extend time limits in Rules of the Supreme Court 1971 (WA) (RSC) O 3 r 5(1) is an example of such a relevant statutory provision: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. Counsel referred also to the power in RSC O 14 r 12 to set aside a summary judgment where a party fails to appear at a hearing. In order to set aside the judgment the party who did not appear must provide a satisfactory explanation for their absence from the hearing and any delay in applying to set aside the judgment. The party must also show that, had they appeared, they would have been given leave to defend: Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142, 143. The respondent submitted that this power did not apply in the present case as the appellant did appear, by experienced counsel, and was heard. As to MCCPA s 18(6), the respondent submitted that it is not a provision by which a decision can be re‑litigated over again in the hope of achieving a different outcome. If this was allowed, there would be no finality in any case before the Magistrates Court. It would effectively allow for an abuse of process by the ability of a litigant to mount a collateral attack on the validity of the first magistrate's decision. The respondent submitted that an application pursuant to MCCPA s 18(6) is not a re‑hearing de novo. Rather, it is an application to set aside the original decision. Accordingly, the respondent submitted that there must be some basis made out for the exercise of such a judicial discretion which impeaches the validity, or is a form of review, of the basis for the making of the original decision. However, it would be incongruous to allow effectively an 'appeal' from one magistrate to another magistrate through the procedure of s 18(6). The respondent thus concluded that MCCPA s 18(6) involves a more limited review. The respondent submitted that the limited review was essentially a statutory framework within which the common law power to set aside a perfected judgment. Citing the decision of Brennan J in Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195, 198, the respondent submitted that such a judgment may only be set aside in three classes of case:(a) those founded on the inherent jurisdiction of the Court to ensure that its procedures do not effect injustice;(b) those authorised by statute; and(c) those where the judgment is obtained by fraud or by an agreement which is void or voidable. Counsel thus submitted: Therefore section 18(6) provides a statutory basis to re-open a perfected final judgment, and on a proper construction is limited to a case where the judgment is impeachable on such grounds as fraud, fresh evidence, correction of an error on the face of the record (where the judgment or order does not actually record what the Magistrate intended) or where there has been a denial of natural justice by way of a failure to be heard or to be given an opportunity to be heard (such as where through no fault the party was not present or represented, or the party was under a disability and therefore not "effectively heard").