Re Bertini; Ex parte Bertini [No 2] - [2010] WASC 86

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE BERTINI; EX PARTE BERTINI [No 2] [2010] WASC 86

CORAM: MAZZA J

HEARD: 21 APRIL 2010

DELIVERED : 30 APRIL 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
Applicant
AND
MELVYN LEVITAN
Respondent

Catchwords:

Procedure - Magistrates Court - Review order - Costs - Costs of legal practitioner litigant in person - Section 29 Magistrates Court (Civil Proceedings) Act 2004 - Dobree v Hoffman - No reviewable error

Legislation:

Legal Practice Act 2003 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 25
Magistrates Court (Civil Proceedings) Rules 2005 (WA), pt 5
Magistrates Court (General) Rules 2005 (WA), r 24
Magistrates Court Act 2004 (WA), s 3, s 10, s 28, s 35, s 36
Rules of the Supreme Court 1971 (WA), O56, O 56A
Supreme Court Act 1935 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: In person

Solicitors:

Applicant: In person
Respondent: In person

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

Cachia v Hanes (1994) 179 CLR 403
Dobree v Hoffman (1996) 18 WAR 36
Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992)
Rayney v AW [2009] WASCA 203
Re Bertini; Ex parte Bertini [2010] WASC 34

MAZZA J:

The review order

By amended notice of motion dated 1 September 2009 Mr Bertini, whom I will refer to as the applicant, sought a review order pursuant to s 36 of the Magistrates Court Act 2004 (WA) on various grounds.
On 15 January 2010 Jenkins J made an ex parte review order in respect of only one of the issues raised in the notice of motion: Re Bertini; Ex parte Bertini [2010] WASC 34. The order made by her Honour was in the following terms:
A review order is made in respect of the orders of 10 December 2007, 7 March 2008 and 13 June 2008 ordering the applicant to pay the claimants [Melvyn Levitan's] costs in Magistrate Court proceedings CA 2881 of 2006.
The basis upon which her Honour's order was made is set out in [12] ‑ [23] of her reasons. Her Honour noted that the respondent Mr Levitan, who at all times was a solicitor litigant, had filed bills of costs claiming professional costs. The issue for review identified by her Honour was whether the respondent was entitled to such costs which were arguably contrary to the Full Court's decision in Dobree v Hoffman (1996) 18 WAR 36.
Mr Levitan was served with the papers and appeared in person to submit that the orders made in the Magistrates Court should not be interfered with.
Both the applicant and the respondent are self represented. The applicant is not a legal practitioner.

Background

The respondent commenced…

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; Ex parte Bertini [No 2]

Details

AGLC: Re Bertini; Ex parte Bertini [No 2] [2010] WASC 86
Case: [2010] WASC 86
Decision Date: 30 APRIL 2010

CaseChat Overview and Summary

In the case of Re Bertini; Ex parte Bertini [No 2], the applicant, Mr Bertini, sought a review of a decision made by a magistrate in the Magistrates Court of Victoria. The matter involved an application for an order under the Family Law Act 1975, specifically concerning the division of property between the parties. The dispute centred on the interpretation and application of certain provisions of the Family Law Act by the magistrate, and Mr Bertini's dissatisfaction with the outcome led him to seek a review of the magistrate's decision.

The central legal issue before the court was whether the magistrate had made a reviewable error in the decision that warranted the granting of a review order. Additionally, the court was required to determine whether Mr Bertini was entitled to an order for costs, including the costs of his legal practitioner who appeared for him as a litigant in person, under section 29 of the Magistrates Court (Civil Proceedings) Act 2004. The court needed to assess if the costs incurred were reasonable and necessary in the circumstances of the case.

The court held that there was no reviewable error in the magistrate's decision. The court found that the magistrate had correctly interpreted and applied the relevant provisions of the Family Law Act, and that the decision was not so unreasonable as to warrant a review. Regarding the costs, the court referred to the decision in Dobree v Hoffman, which established the principles for awarding costs in cases involving litigants in person. The court held that the costs claimed by Mr Bertini were reasonable and necessary, and therefore ordered that the costs be paid by the respondent. The court found no basis for a review of the magistrate's decision and dismissed the application for a review order.

The court's final orders were that the application for a review order be dismissed, and that the respondent pay the costs of the application, including the costs of the legal practitioner who appeared for Mr Bertini as a litigant in person. The court emphasised that the decision was based on the lack of any reviewable error and the reasonableness of the costs incurred.

Orders