JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FRIGGER -v- MADGWICKS [2017] WADC 69
CORAM: DAVIS DCJ
HEARD: 22 FEBRUARY & 9 MARCH 2017
DELIVERED : 26 MAY 2017
FILE NO/S: APP 81 of 2016
BETWEEN: ANGELA FRIGGER
First appellant
HARTMUT FRIGGER
Second appellantAND
MADGWICKS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE BOON
Citation :PE CIC 3252 OF 2016
Catchwords:
Appeal - Magistrates Court - Stay of proceedings - Service and Execution of Process Act 1992 (Cth) s 20 - Whether error by magistrate in granting a stay - Summary judgment - Magistrate's refusal to grant summary judgment - Whether appeal from a refusal of summary judgment is available - Whether error by magistrate in any event
Legislation:
Legal Professional Act 2008 (WA) s 68
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 18(7)
Service and Execution of Process Act 1992 (Cth) s 20
Result:
Appeal dismissed
Representation:
Counsel:
First appellant : In person
Second appellant : In person
Respondent: No appearance
Solicitors:
First appellant : Not applicable
Second appellant : Not applicable
Respondent: Not applicable
Case(s) referred to in judgment(s):
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196
Avsar v Binning [2009] WASCA 219
Bulcraig v Hunt [2010] WADC 99
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Cutler v Wandsworth Stadium Ltd [1949] AC 398
De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335
Entores Ltd v Miles Far East Corporation [1955] 2 QB 327
Fertico v Murray River Corn [2002] SADC 89
Frigger v Banning [2016] FCA 359
Hamilton's Ewell Vineyards Pty Ltd v River Horizons Pty Ltd [2012] SADC 173
House v The King (1936) 55 CLR 499
Johannsen Drilling Pty Ltd v Legend International Holdings Inc [2008] NTMC 068
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Norbis v Norbis (1986) 161 CLR 513
Northern Territory v Mengel (1995) 185 CLR 307
O’Connor v SP Bray Ltd (1937) 56 CLR 464
Ravi v Amerind Pty Ltd [2006] WADC 84
Sevior v Morgan [2012] VSC 480
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
St George Bank Ltd v McTaggart [2003] QCA 59; [2003] 2 Qd R 568
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Swanson v Harley (1995) 103 NTR 25; (1995) 125 FLR 182
University of Western Australia v Gray (No 25) (2009) 180 FCR 483; [2009] FCA 1227
DAVIS DCJ: In January 2016 Mr and…
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- AGLC
- Frigger v Madgwicks [2017] WADC 69
- Case
- [2017] WADC 69
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the magistrate had erred in granting a stay of proceedings under the Service and Execution of Process Act 1992 (Cth) s 20, and whether the appeal was valid from the magistrate's refusal to grant summary judgment. Additionally, the court needed to determine if there had been any error by the magistrate in refusing the summary judgment application.
The court found that the appeal was in the nature of a re-hearing, and as such, the plaintiffs had to demonstrate and satisfy the court that there was some legal, factual, or discretionary error on the part of the magistrate. The court held that the fact that a litigant was disappointed with the result did not mean that the appeal court was able to intervene. The court further held that if a judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect them, or did not take into account some material consideration, then their determination should be reviewed, and the appellate court may exercise its own discretion in substitution for theirs if it had the materials for doing so. In this case, the court found no such error on the part of the magistrate and dismissed the appeal.
The court made no orders as to costs in this matter.
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
As this appeal is in the nature of a re-hearing, Mr and Mrs Frigger must demonstrate and satisfy me that there was some legal, factual, or discretionary error on the part of the magistrate: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203. If such an error has been made, I can substitute my decision for that of the magistrate. If no error is shown, I cannot intervene: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. The fact that a litigant is disappointed with the result does not mean that the appeal court is able to intervene: Avsar v Binning [2009] WASCA 219 [37]. So far as a discretionary error is concerned the principles are set out in House v The King (1936) 55 CLR 499 in which the High Court said (504 ‑ 505):It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. In Norbis v Norbis (1986) 161 CLR 513, 518 – 519, Mason and Deane JJ made the following comments elaborating on the principles set out in House:Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.The principles enunciated in House … were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision‑making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of such an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal. As in the hearings before the magistrate, Mrs Frigger was the spokesperson for both her and her husband in this appeal.