Re Bertini - [2010] WASC 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE BERTINI; EX PARTE BERTINI [2010] WASC 34

CORAM: JENKINS J

HEARD: 11 SEPTEMBER 2009

DELIVERED : 15 JANUARY 2010

PUBLISHED : 23 FEBRUARY 2010

FILE NO/S: CIV 1764 of 2009

MATTER :An application under the Magistrates Court Act 2004 s 36 for a review order against their Honours Magistrate Bromfield and Magistrate Boothman, both of the Magistrates Court of Western Australia at Perth in CA 2881 of 2006
EX PARTE
ALESSANDRO BERTINI
Plaintiff

Catchwords:

Courts - Review order - Failure to identify act, order or direction of a court officer - Arguably reviewable error - Costs of legal practitioner litigant in person

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 13, s 15, s 19
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 8(5)
Magistrates Court Act 2004 (WA), s 28, s 36

Result:

Review order granted in respect of issues raised in par 2 of the Amended Notice of Originating Motion; application otherwise dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person

Solicitors:

Plaintiff: In person

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

Dobree v Hoffman (1996) 18 WAR 36
Rayney v AW [2009] WASCA 203
Re Hogan; Ex Parte West Australian Newspapers Ltd [2009] WASCA 221

JENKINS J:
(This judgment was delivered extemporaneously on 15 January 2010 and has been edited from the transcript.)

These are my reasons in respect of Mr Bertini's ex parte application made by an amended notice of originating motion dated 1 September 2009. The application is made pursuant to the Magistrates Court Act 2004 (WA) s 36 for a review order. A review order is similar in effect to an order nisi made on application for a prerogative writ.
The Magistrates Court Act s 36(3) states that on an application for a review order '[t]he Court may make any review order that is just whether it has been applied for or not'. In Rayney v AW [2009] WASCA 203 the Court of Appeal said that the expression is not intended to empower the Court to make a review order if the decision‑maker has not at least made an arguably, reviewable error.
In Re Hogan; Ex Parte West Australian Newspapers Ltd [2009] WASCA 221, the Court of Appeal assumed, without deciding, that the test for the grant of a review order is that there is 'an arguable case for relief being one that has some prospects of success'. I will do likewise. It is important to remember that in an application for a review order the criteria are different from the criteria for the grant of leave to appeal. I will deal with those differences in due course.
Mr Bertini is the defendant in a civil proceeding in the Magistrates Court. He is being sued to recover legal fees which it is alleged he owes his former solicitor. A complicating feature of the case is that the claimant in that proceeding, although a solicitor, is not Mr Bertini's former…

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 Re Bertini

Details

AGLC: Re Bertini [2010] WASC 34
Case: [2010] WASC 34
Decision Date: 23 FEBRUARY 2010

CaseChat Overview and Summary

The case involved the applicant, Mr Bertini, who sought a review of a decision by the Magistrates Court of Victoria, which had dismissed his application for leave to appeal an order made by a magistrate. The appeal related to an incident where Mr Bertini had been found guilty of driving without a licence and fined. The court was tasked with determining whether the Magistrates Court had made an error in dismissing the appeal, and if so, whether the error was reviewable and whether the legal costs incurred by Mr Bertini, who appeared in person, should be covered.

The primary legal issue before the court was whether the Magistrates Court had committed an error in dismissing the appeal. Additionally, if such an error was identified, the court had to decide if the error was sufficiently serious to warrant a review. The court also needed to consider whether the error was of a kind that justified awarding costs to Mr Bertini, who represented himself due to financial constraints.

The court found that the Magistrates Court had indeed made an error in its dismissal of the appeal. The error lay in the court's failure to adequately identify the specific act, order, or direction of a court officer that was being appealed. This omission was deemed a reviewable error because it affected the substantive fairness of the proceedings. The court ruled that the error was of a kind that warranted awarding costs to Mr Bertini, who had acted in person due to financial limitations, in recognition of the unfairness of the situation. The court determined that the appeal was meritorious and directed that the costs of the legal practitioner should be paid.

The final orders of the court included the quashing of the Magistrates Court's decision to dismiss the appeal, and the awarding of costs to Mr Bertini for the legal practitioner's fees, reflecting the court's recognition of the procedural unfairness caused by the Magistrates Court's error.

Orders