Re His Honour Magistrate Bromfield SM

[2012] WASC 253

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RE HIS HONOUR MAGISTRATE BROMFIELD SM; EX PARTE CRISTOVAO [2012] WASC 253

CORAM:   McKECHNIE J

HEARD:   4 JULY 2012

DELIVERED          :   4 JULY 2012

FILE NO/S:   CIV 1339 of 2012

MATTER                :An application for a Review Order against His Honour Magistrate Bromfield SM of the Perth Magistrates Court at Perth

EX PARTE

ROGERIO MARTINS CRISTOVAO
Applicant

Catchwords:

Courts and judges - Magistrates Court - Review order - Review limited by Act - Matter going to jurisdiction disclosed

Legislation:

Magistrates Court Act 2004 (WA), s 36

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     In person

Solicitors:

Applicant:     In person

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

Chin v Legal Practice Board [2011] WASCA 110

Cristovao v Butcher Paull & Calder [No 3] [2010] WASCA 10

Ebner v Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

McKECHNIE J: 

Application for recusal

1. Before dealing with this application, which is a notice of originating motion for a review under the Magistrates Court Act 2004 (WA) s 36, I should deal with an application which Mr Cristavao has made for me to recuse myself on the basis of a letter of 25 June 2012 which he sent to the Principal Registrar, with copies to many other people.

2. He lists seven matters in that letter but most of them seem to relate to a decision which I made in relation to costs and an application to stay an order in relation to costs referred to in Cristovao v Butcher Paull & Calder [No 3] [2010] WASCA 10.

3. The test for apprehended bias is laid down by the High Court in Ebner v Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, and Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; see also Chin v Legal Practice Board [2011] WASCA 110 [3] ‑ [6].

4. Mr Cristavao cites as the first reason:

   McKechnie J has already decided sometime in 2008 on the issues of attempted fraud by Butcher Paull and Calder with regard to their attempted usage of the Unsworn Perverted Affidavit filed in FCWA3009/02 dated 21.3.2003 to defraud me of legal fees which they are NOT entitled to for a sum exceeding $10K (the Attempted Fraud by BPC).

5. The actual matter which I decided was an application to stay an order relating to costs ordered by the Court of Appeal.  It is not a matter referred to in any of the paragraphs of Mr Cristavao's letter, particularly paragraph 1. 

6. There is no basis for believing that a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions the judge is required to decide.  I have also taken into account that there are a number of matters listed before me today involving Mr Cristavao, but my opinion remains that there is no basis for recusal and the application is refused. 

The application for review

1. The applicant supports his application for review under the Magistrates Act 2004 (WA) by an affidavit sworn 27 February 2012.  There is no explanation as to why there was a delay in bringing these proceedings. 

2. It appears that the applicant is the plaintiff in an action against Taylor Woodgate Pty Ltd.  The papers annexed to the affidavit indicate there was a listing conference in the Magistrates Court on 28 March 2011 at which both parties were verbally informed by the court that listing conference would be adjourned to 5 July 2011.  A notice was sent to all parties confirming the listing conference had been adjourned to 5 July 2011.

3. The transcript of the appearance on 5 July 2011 noted there was no appearance for the claimants (applicant) and then his Honour continued:

   HIS HONOUR:   Now, Mr Houghton, if - I see there are some proceedings in the District Court.

   HOUGHTON, MR:   There are, sir. 

   HIS HONOUR:   There haven't been any orders staying these proceedings while that court - pending that appeal?

   HOUGHTON, MR:   No.

   HIS HONOUR:   The position this morning is that the claimant's being obliged to be in attendance at the listing conference and being satisfied that they have been notified, the court can if it considers appropriate, dismiss the claim.

4. The magistrate then made an order dismissing the claim pursuant to the Magistrates Court (Civil Proceedings) Act 2004 (WA) s 19. The applicant was advised by the court on 10 August 2010 and it is indeed the case that he could apply to have the action reinstated.

5. The applicant has listed 10 grounds in support of his assertion that, 'Magistrate Bromfield is in jurisdictional excesses'.  The grounds are not related specifically to the actual hearing before Magistrate Bromfield and seem to have been gleaned from some textbook or other.

6. A right to review or a power to review under s 36 of the Magistrates Court Act is not an appeal and its right is limited to and the power to grant a review order are limited to those matters set out specifically in s 36(1).

7. The magistrate plainly acted within jurisdiction and it was open for him to make the order he made.  There is no substance in the application for review.  I therefore dismiss the application.