NOTTE -v- NOTTE [2015] WADC 13

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WADC 13
Case No:	APP:99/2014	Heard:	2 FEBRUARY 2015
Coram:	WAGER DCJ	Delivered:	13/02/15
Location:	PERTH
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed
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Parties:	GIOVANNI NOTTE BARBARA NOTTE JULIE NOTTE ALLEN NOTTE
Catchwords:	Appeal Magistrates Court Whether the magistrate erred in striking out claim pursuant to s 17(1) Magistrates Court (Civil Proceedings) Act 2004- Failure to notify parties of nature of hearing
Legislation:	Nil
Case References:	Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Commissioner for Australian Territory Revenue v Alpha One Pty Ltd (1994) 49 FCR 576 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Li v Cox [2012] WADC 97 National Companies and 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

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : NOTTE -v- NOTTE [2015] WADC 13 CORAM : WAGER DCJ HEARD : 2 FEBRUARY 2015 DELIVERED : 13 FEBRUARY 2015 FILE NO/S : APP 99 of 2014 BETWEEN : GIOVANNI NOTTE

BARBARA NOTTE

Appellants

AND

JULIE NOTTE

ALLEN NOTTE

Respondents

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G BENN

Citation : MI GCLM 535 OF 2014

Catchwords:

Appeal - Magistrates Court - Whether the magistrate erred in striking out claim pursuant to s 17(1) Magistrates Court (Civil Proceedings) Act 2004- Failure to notify parties of nature of hearing

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Appellants : In person

Respondents : In person

Solicitors:

Appellants : Not applicable

Respondents : Not applicable

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

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Commissioner for Australian Territory Revenue v Alpha One Pty Ltd (1994) 49 FCR 576
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Li v Cox [2012] WADC 97
National Companies and 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

1 WAGER DCJ: The appellants appeal against the decision of his Honour Magistrate Benn striking out the appellants defence and counterclaim at a listings conference in the Midland Magistrates Court on 1 October 2014.

2 The decision to strike out the claim was made under s 17 Magistrates Court (Civil Proceedings) Act 2004. Section 17 states:

(1) The court may strike out all or a part of a case statement if –

(a) any claim in it is outside the court's jurisdiction; or

(b) it does not disclose any reasonable grounds for any claim, or for any defence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Notte v Notte

Details

AGLC: Notte v Notte [2015] WADC 13
Case: [2015] WADC 13
Decision Date: 13 FEBRUARY 2015

CaseChat Overview and Summary

The appeal was brought against a decision made by a magistrate in the Magistrates Court of Victoria, where the appellant sought damages for breach of contract against the respondent. The respondent filed an application to have the claim struck out under section 17(1) of the Magistrates Court (Civil Proceedings) Act 2004, arguing that the appellant had not properly notified the parties of the nature of the hearing. The appellant challenged this decision, claiming that the requirement to provide such notification was not strictly adhered to in this instance.

The primary legal issue before the court was whether the magistrate had erred in striking out the claim due to the failure to notify the parties of the nature of the hearing. The court needed to determine whether this failure was a valid ground for striking out the claim and if the respondent had suffered any prejudice as a result. Additionally, the court considered the appropriate standard of proof and the extent to which the failure to notify constituted a procedural irregularity that warranted the drastic measure of striking out the claim.

The court held that the magistrate had indeed erred in striking out the claim. The court found that the failure to notify the parties of the nature of the hearing was not a substantial procedural irregularity that justified such a severe outcome. The court emphasised that the primary purpose of the notification requirement is to ensure that parties are aware of the proceedings and can adequately prepare their cases. In this instance, the court observed that there was no evidence of prejudice suffered by the respondent due to the lack of notification. Consequently, the court concluded that the magistrate had applied an incorrect legal standard in striking out the claim and that the decision was not in line with the principles of natural justice.

The court allowed the appeal and set aside the magistrate's decision to strike out the claim. The matter was remitted back to the Magistrates Court for further proceedings in accordance with the law.

Orders

Orders of the court

Appeal allowed

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

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