RE MAGISTRATE HOGAN; EX PARTE BEMPASCIUTO [2002] WASC 186

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 186
Case No:	CIV:1372/2002	Heard:	19 JULY 2002
Coram:	McKECHNIE J	Delivered:	26/07/02
No of pages:	8	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
PDF Version

Parties:	FRANCESCO BEMPASCIUTO
Catchwords:	Small claims Error on face of record What constitutes "record" Application for certiorari Confined by statute
Legislation:	Small Claims Tribunal Act 1974 (WA)
Case References:	R v Compensation Court of Western Australia; Ex parte State Planning Commission; Re Della-Vedova (1990) 2 WAR 242 Craig v South Australia (1995) 184 CLR 163 Mahony v Industrial Registrar of NSW (1986) 8 NSWLR 1 Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196 Re Capobianco; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998 Re Matthews; Ex parte MacKenzie [2000] WASC 147

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE MAGISTRATE HOGAN; EX PARTE BEMPASCIUTO [2002] WASC 186 CORAM : McKECHNIE J HEARD : 19 JULY 2002 DELIVERED : 26 JULY 2002 FILE NO/S : CIV 1372 of 2002 MATTER : Application for a Writ of Certiorari against MAGISTRATE HOGAN, Referee of the Small Claims Tribunal EX PARTE

FRANCESCO BEMPASCIUTO

Applicant

Catchwords:

Small claims - Error on face of record - What constitutes "record" - Application for certiorari - Confined by statute

Legislation:

Small Claims Tribunal Act1974 (WA)

Result:

Application refused

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Ms M L F Lee

Solicitors:

Applicant : Summers Partners

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

R v Compensation Court of Western Australia; Ex parte State Planning Commission; Re Della-Vedova (1990) 2 WAR 242

Case(s) also cited:

Craig v South Australia (1995) 184 CLR 163
Mahony v Industrial Registrar of NSW (1986) 8 NSWLR 1
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196
Re Capobianco; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998
Re Matthews; Ex parte MacKenzie [2000] WASC 147

(Page 3)

1 McKECHNIE J: This is an application for an order nisi directed to the referee of the Small Claims Tribunal arising from an order made by that Tribunal in respect of a dispute over a motor vehicle.

2 The application for an order nisi was filed on 22 March 2002 and adjourned on that date to 24 April 2002 when White AUJ ordered that the matter be adjourned to a special appointment to be fixed and that the minute of amended notice of motion was to stand as the notice of motion.

3 On 27 March 2002, the applicant's solicitors received a copy of the referee's decision.

4 No satisfactory explanation was advanced as to why the decision was not put before White AUJ, nor why an affidavit annexing the reasons was not filed until the day before the hearing of the special appointment.

The claim before the referee

5 On 9 October 2001 the claimant…

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 Magistrate Hogan;

Details

AGLC: Re Magistrate Hogan; [2002] WASC 186
Case: [2002] WASC 186
Decision Date

CaseChat Overview and Summary

The case involves an application for a writ of certiorari against Magistrate Hogan, the referee of the Small Claims Tribunal, by Francesco Bempasciuto. The applicant seeks to challenge a decision made by the Small Claims Tribunal in relation to a dispute over a motor vehicle. The legal issues before the court were whether the referee had made an error of law on the face of the record, and whether the applicant had a valid basis for seeking a writ of certiorari against the referee. The court found that the applicant had not demonstrated that the referee had made an error of law on the face of the record, and that the application for a writ of certiorari was misconceived. The court held that the Small Claims Tribunal's record was defined by statute and did not include the written reasons for decision. Furthermore, the court held that the grounds for the application were not errors of law, but rather errors of fact. The court also held that its jurisdiction to supervise the Small Claims Tribunal by way of prerogative writs was confined by statute and that the applicant had not demonstrated a denial of natural justice. Therefore, the application for a writ of certiorari was dismissed.

Orders