Re Magistrate Langdon
[2016] WASC 171
•17 JUNE 2016
RE MAGISTRATE LANGDON; EX PARTE TEY [2016] WASC 171
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 171 | |
| Case No: | CIV:1116/2016 | 3 JUNE 2016 | |
| Coram: | MARTINO J | 17/06/16 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Applicant ordered to serve application Application listed for directions on 3 August 2016 at 9.15 am | ||
| B | |||
| PDF Version |
| Parties: | KOK YONG TEY |
Catchwords: | Vexatious proceedings Application for leave to commence proceedings |
Legislation: | Local Government Act 1995 (WA) Magistrates Court (Civil Proceedings) Act 2004 (WA) Magistrates Court Act 2004 (WA) Vexatious Proceedings Restriction Act 2002 (WA) |
Case References: | Columbia Holdings Pty Ltd v City of Armadale [2012] WASC 422 Deputy Commissioner of Taxation v Roget [No 2] [2014] WADC 25 Hunter v Commissioner of Police [2003] WASC 10 Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146 North Ganalaja Aboriginal Corporation v Queensland (1996) 185 CLR 595 Re Michelides; Ex parte Chin [2008] WASC 256 Saldhana v Fujitsu Australia Ltd [No 2] [2011] WASC 360 Shilkin v Taylor [2011] WASCA 255 Tey v Michael Mischin MLC, Attorney General for Western Australia [2015] WASCA 243 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
KOK YONG TEY
Plaintiff
Catchwords:
Vexatious proceedings - Application for leave to commence proceedings
Legislation:
Local Government Act 1995 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Applicant ordered to serve application
Application listed for directions on 3 August 2016 at 9.15 am
Category: B
Representation:
Counsel:
Plaintiff : In person
Solicitors:
Plaintiff : In person
Case(s) referred to in judgment(s):
Columbia Holdings Pty Ltd v City of Armadale [2012] WASC 422
Deputy Commissioner of Taxation v Roget [No 2] [2014] WADC 25
Hunter v Commissioner of Police [2003] WASC 10
Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146
North Ganalaja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Re Michelides; Ex parte Chin [2008] WASC 256
Saldhana v Fujitsu Australia Ltd [No 2] [2011] WASC 360
Shilkin v Taylor [2011] WASCA 255
Tey v Michael Mischin MLC, Attorney General for Western Australia [2015] WASCA 243
- MARTINO J:
Introduction and summary of decision
1 Mrs Tey applies for leave pursuant to s 6 of the Vexatious Proceedings Restriction Act 2002 (WA) (the Act) to commence an application pursuant to s 36 of the Magistrates Court Act 2004 (WA) for judicial review of the decision of her Honour Magistrate Langdon made on 15 July 2015 in action PER/GCLM/925 of 2013.
2 The orders made by her Honour on that day in that action were:
1 The Claimant's Form 23 Application be granted.
2 Summary judgment be entered in favour of the General Procedure Claim pursuant to S 18(2) Magistrates Court (Civil Proceedings) Act 2004.
3 The Listing Conference on Wednesday 22 July 2015 be vacated.
4 The Defendant pay the Claimant the sum of $1589.50 for services rendered on or about 6 September 2010 plus interest at the rate of 6% per annum from the date of these orders until payment (daily rate $0.26).
5 The Defendant pay the Claimant's costs including reserved costs to be assessed if not agreed.
3 I have decided that there is no prima facie ground for judicial review of the first to fourth orders made by her Honour. I have also decided that it is possible that there is a prima facie ground for judicial review of the fifth order made by her Honour. I will therefore order pursuant to s 6(6) of the Act that Mrs Tey serve her application, the accompanying affidavits, her proposed application for judicial review and these reasons on Magistrate Langdon, the Attorney General and the City of Melville. The documents are to be served on her Honour Magistrate Langdon by service on the Registrar of the Magistrates Court at Fremantle. The documents are to be served on the Attorney General by service on the State Solicitor's Office. The documents are to be served on the City of Melville by service on its solicitors
4 Mrs Tey's application pursuant to s 6 of the Act is listed for directions at 9.15 am on Wednesday 3 August 2016.
The order made under s 4 of the Act
5 On 4 May 2015 Le Miere J made an order under s 4 of the Act prohibiting Mrs Tey from instituting proceedings in a court or tribunal without the leave of that court or tribunal: Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146. An appeal against Le Miere J's decision was dismissed: Tey v Michael Mischin MLC, Attorney General for Western Australia [2015] WASCA 243.
Mrs Tey's application
6 On 22 January 2016 Mrs Tey filed a notice of originating motion, a chamber summons and two affidavits, both made by her on 21 December 2015.
7 The notice of originating motion sought the following orders:
The Orders made by Magistrate Langdon on 15 July 2015 in Action No PER/GCLM/925 of 2013 in the Magistrates Court of Western Australia at Fremantle granting judgment in favour of City of Melville (see Annexure KYT),
(a) Be quashed.
(b) Set aside and dismissed. And Order that:
(c) The Review Order be granted.
8 The chamber summons was entitled:
Plaintiff's Chamber Summons Application to obtaining leave of the court under section 6 of the Vexatious Proceedings Restriction Act 2002.
9 In that summons Mrs Tey sought the following orders:
1. Leave is granted to the plaintiff Kok Yong Tey for the filing of an EX PARTE TEY Originating Motion dated 21 December 2015 in the matter of an application pursuant to s 36 of the Magistrates Court Act 2004 for a review order against the Order made by Her Honour Magistrate Langdon given on the 15th day of July 2015 in Action No PER/GCLM/925 of 2013 held at Fremantle;
2. Leave is granted to the plaintiff Kok Yong Tey for the and hearing of an EX PARTE TEY Originating Motion dated 21 December 2015 in the matter of an application pursuant to s 36 of the Magistrates Court Act 2004 for a review order against the Order made by Her Honour Magistrate Langdon given on the 15th day of July 2015 in Action No PER/GCLM/925 of 2013 held at Fremantle.
10 As Mrs Tey requires leave before she may institute proceedings I regard the notice of originating motion that she has filed as being the form of document by which she proposes to institute proceedings if she is granted the leave for which she applies.
Two directions hearings
11 Mrs Tey's application for leave under s 6 of the Act (the application for leave) was listed for directions on 26 February 2016. At the commencement of the directions hearing Mrs Tey informed me that she did not have copies of the notice of originating motion dated 21 December 2015 or the two affidavits filed by her. I arranged for her to be provided with photocopies of those documents so that she had copies of the documents that were before me. At that hearing Mrs Tey said that she wished me to have before me a copy of the transcript of the hearing before Le Miere J on 4 May 2015 when his Honour delivered his decision in Michael Mischin MLC, Attorney General for Western Australia v Tey. I informed Mrs Tey that if she wished me to consider that transcript then it was for her to obtain the transcript and place it before me.
12 At the directions hearing on 26 February 2016 I directed Mrs Tey's attention to s 6(3) of the Act and I informed her that she needed to ensure that her affidavit in support of her application contained the evidence required by that provision.
13 Mrs Tey asked me to adjourn the directions hearing for three months as she said that amount of time was necessary to obtain the transcript and to provide the information required by s 6(3) of the Act. I said that it did not seem to me that three months would be required but I would adjourn the matter to a further directions hearing in approximately one month's time. Mrs Tey was not available on the first date that I suggested that the hearing be adjourned to, so I adjourned the directions hearing to 11 April 2016, which she told me was suitable for her.
14 Mrs Tey appeared before me on 11 April 2016. She informed me that she had filed an affidavit on 8 April 2016. The affidavit had not reached the file by the time of the hearing on 11 April 2016. I listed the application for leave for hearing on 3 June 2016 and directed that any affidavit or other document that Mrs Tey wished to be considered at that hearing be filed on or before 27 May 2016.
15 Following the directions hearing on 11 April 2016 Mrs Tey filed affidavits sworn by her on 12 May 2016, 24 May 2016, 26 May 2016 and 27 May 2016, all of which were filed by 27 May 2016.
16 On 1 June 2016 Mrs Tey filed an outline of submissions, a chronology and a list of authorities in support of her application. These documents were not filed within the time limited by my direction of 11 April 2016, however at the hearing on 3 June 2016 I informed Mrs Tey that I would nevertheless consider them.
17 At the hearing on 3 June 2016 Mrs Tey informed me that she also wished me to consider two further bundles of documents that she had not had the time to file previously. She informed me that these documents would complete the attachments to her affidavit of 27 May 2016. I allowed Mrs Tey to tender those documents and informed her that I would consider them, although they were not filed within the time limited by my direction of 11 April 2016.
The principles to be applied on Mrs Tey's application
18 Section 6 of the Act requires an application for leave to be accompanied by an affidavit in support of the application: s 6(1). The affidavit accompanying the application is to list all the occasions on which the applicant has made an application for leave to institute proceedings and to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant: s 6(3). Neither the application nor the affidavit are to be served on any other person unless the court or tribunal to which the application is made orders that they are to be served on another person: s 6(4). The court or tribunal considering the application is to dismiss it if the court or tribunal considers that:
(a) the affidavit does not disclose everything required by s 6(3) to be disclosed;
(b) the proceedings are vexatious proceedings; or
(c) there is no prima facie ground for the proceedings: s 6(5).
19 Vexatious proceedings are defined in s 3 to mean proceedings:
(a) which are an abuse of the process of a court or a tribunal;
(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;
(c) instituted or pursued without reasonable ground; or
(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
20 As Pullin J said in Hunter v Commissioner of Police [2003] WASC 10 at [18] the phrase 'prima facie' can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase is at first sight; on the face of it; as appears at first sight without investigation: North Ganalaja Aboriginal Corporation v Queensland (1996) 185 CLR 595, 615 - 616 (Brennan CJ, Dawson, Toohey, Gaudron & Gummow JJ). I agree with his Honour's view that the phrase 'prima facie grounds' in s 6(5) means that there is a legal basis for the claim and that there is some evidence referred to in the affidavit in support of the application which, if accepted, would be capable of sustaining the proceedings.
21 Mrs Tey seeks leave to apply for a review order under s 36 of the Magistrates Court Act. The test to be applied on an application for a review order is whether the applicant has demonstrated an arguable case with some reasonable prospect of success: Saldhana v Fujitsu Australia Ltd [No 2] [2011] WASC 360 [61] (Corboy J). The test for me to apply on Mrs Tey's application under s 6 of the Act is whether she has established that she has prima facie grounds for an arguable case with some reasonable prospect of success.
22 Before the court or tribunal grants an application for leave it is to order that a copy of the application and accompanying affidavit be served on the person against whom the proceedings are to be instituted, any person who made an application under s 4(2)(c) in relation to the applicant and the Attorney General and give those persons an opportunity to oppose the application for leave.
The evidence in support of the application
23 As I have mentioned s 6 of the Act requires an application for leave to be accompanied by an affidavit which is to list all the occasions on which the applicant has made an application for leave to institute proceedings and to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. Neither of the affidavits filed by Mrs Tey at the same time as the application for leave satisfied these requirements. In any written law words in the singular number include the plural: s 10 Interpretation Act 1984 (WA). As the various affidavits filed by Mrs Tey accompanied the application for leave by the time that application was heard by me on 3 June 2016 I consider that I should have regard to them all at that hearing, even though all of the affidavits did not accompany the application at the time that she filed it.
24 One of the affidavits made by Mrs Tey on 21 December 2015 is expressed to be in support of the notice of originating motion. In that affidavit she deposes that she is the plaintiff, was a qualified accountant and is not represented. She deposes that to the best of her knowledge and belief the contents of the notice of originating motion and the affidavit are true and correct. There is an annexure KYT1 to the affidavit, which appears to be the annexure KYT referred to in the notice of originating summons. The annexure is a copy of orders made on 15 July 2015 in the Fremantle Registry of the Magistrates Court in case PER/GCLM/925/2013 between the City of Melville as claimant and Mrs Tey as defendant. The orders were:
1 The Claimant's Form 23 Application be granted.
2 Summary judgment be entered in favour of the General Procedure Claim pursuant to S.18(2) Magistrates Court (Civil Proceedings) Act 2004.
3 The Listing Conference on Wednesday 22 July 2015 be vacated.
4 The Defendant pay the Claimant the sum of $1589.50 for services rendered on or about 6 September 2010 plus interest at the rate of 6% per annum from the date of these orders until payment (daily rate $0.26).
5 The Defendant pay the Claimant's costs including reserved costs to be assessed if not agreed.
25 The other affidavit made by Mrs Tey on 21 December 2015 is expressed to be in support of her application for leave to institute proceedings made under s 6 of the Act. In that affidavit Mrs Tey deposes that on 4 May 2015, when Le Miere J delivered his decision prohibiting Mrs Tey from instituting proceedings in a court or tribunal without the leave of that court or tribunal she asked Le Miere J if the order affected an appeal by her against his Honour's decision and, to the best of her memory, Le Miere J said that the order did not affect such an appeal and that the order would not affect cases commenced in courts or tribunals before 4 May 2015.
26 The third affidavit filed by Mrs Tey was made by her on 8 April 2016. In that affidavit she criticises the decision made by Le Miere J on 4 May 2015 and deposes that she has appealed to the High Court against the dismissal of her appeal against that decision. She then provides some detail of her professional background as an accountant and a travel agent. Mrs Tey then refers to a speech made by Malcolm CJ in 2004 concerning the desirability of courts being fair and courteous to litigants, the accountability of courts and appeals against sentence.
27 Mrs Tey then deposes to the best of her knowledge and memory the occasions on which she has made application for leave under s 6(3) of the Act. The first application to which she refers relates to two actions in the Fremantle Magistrates Court which were placed on the inactive cases list. She deposes that both of those matters are the subject of an appeal to the District Court. The next occasion to which Mrs Tey refers is also an action in the Fremantle Magistrates Court. Mrs Tey is a defendant to that action. She has attached to her affidavit an order of the court made on 19 August 2015 removing the action from the inactive cases list. The third occasion to which Mrs Tey refers is an oral application she made in the State Administrative Tribunal on 22 January 2016. The application was dismissed. The fourth occasion to which Mrs Tey refers concerns the action in the Fremantle Magistrates Court in respect of which she seeks leave to commence an application for judicial review, namely PER/GCLM/925 of 2013. She has annexed to her affidavit an application she made in that action on 21 December 2015 seeking a stay of the taxation of the claimant's bill of costs until the determination of this application and her proposed application for judicial review.
28 The fourth affidavit made by Mrs Tey was made by her on 12 May 2016. In that affidavit she annexes an undated letter to her from the associate to Le Miere J informing her that the application for leave that she makes in this action was listed for directions before Le Miere J on 12 February 2016. Also annexed to that affidavit is a letter from Mrs Tey to Le Miere J's Associate dated 8 February 2016 in which she said that she was unable to attend the directions hearing on 12 February 2016 and that she objected to Le Miere J hearing her application. Mrs Tey deposes that she telephoned Le Miere J's Associate on 8 February 2016 who informed her that the hearing on 12 February 2016 was moved to 26 February 2016.
29 Mrs Tey deposes that she attended court on 26 February 2016 and appeared before me and that on that day I referred to the provision of s 6(3) of the Act and adjourned the application to a further short directions hearing on 11 April 2016. Mrs Tay deposes that she 'learned the monumental effect of the order made by Justice Le Miere on 4 May 2015' despite Le Miere J informing her that his order did not affect cases which she had already commenced. Mrs Tey then deposes that she appeared before me on 11 April 2016 and that I listed her application for hearing on 3 June 2016 and directed that any documents for that hearing be filed by 27 May 2016.
30 Mrs Tey then deposes that Le Miere J's judgment was damaging to 'my names, my social status and my credentials'. She deposes that on 11 April 2016 she presented to me copies of her Bachelor of Business degree, a letter dated 27 January 1978 from the firm of Coopers and Lybrand confirming her work experience with that firm and a certificate of her membership of the Australian Society of Accountants.
31 Mrs Tey then refers to an essay on the Vexatious Proceedings Act 2008 (NSW) written in 2010 by a student. She then makes complaint about the decision of Magistrate Langdon made on 15 July 2015 and attaches to her affidavit copies of her listing conference memorandum and her statement of intended evidence in that action. Annexed to that statement of intended evidence is a copy of a letter from Mrs Tey to the City of Melville dated 17 August 2010 in which Mrs Tey objected to the City 'to trespass my property' and said:
The tree was poisoned. Someone has poisoned it. It was a criminal offence. It was a premeditated act. Under the Criminal Code, it is against the law to destroy evidence.'
32 Mrs Tey deposes that to the best of her memory no witness statement was filed by the claimant in that action and the claimant failed to file a listing conference memorandum as ordered by the court. Mrs Tey deposes that Magistrate Malley ordered that the claimant file a listing conference memorandum, but Magistrate Langdon dispensed with it.
33 The fifth affidavit filed by Mrs Tey was made by her on 24 May 2016. Mrs Tey deposes that Annexures KYT1 to KYT9 are true copies and that to the best of her knowledge and memory the contents of Annexures KYT1, KYT3, KYT8 and KYT9 are true and correct. There are six attachments to the affidavit. Annexure KYT6 is the second page of Annexure KYT5, Annexure KYT 7 is the third page of KYT5 and Annexure KYT9 is the second page of Annexure KYT8. The seven documents are copies of:
1. A letter from Mrs Tey to the Registrar of the Fremantle Magistrates Court dated 10 May 2016 requesting that the court's record of an order made on 24 June 2015 in PER/GCLM/925 of 2013 be amended (Annexure KYT1);
2. An order made by the court on 24 June 2015 that the claimant's application dated 27 May 2015 be struck out (Annexure KYT2);
3. A letter from Mrs Tey to the Registrar of the Fremantle Magistrates Court dated 23 May 2016 following up her letter of 10 May 2016 (Annexure KYT3);
4. A facsimile dated 23 December 2014 from the lawyers for the claimant to the Registrar of the Fremantle Magistrates Court enclosing the claimant's statement of general procedure claim in action 925 of 2013 (Annexure KYT4);
5. The claimant's statement of general procedure claim in action 925 of 2013 (Annexures KYT5, KYT6 and KYT7); and
6. Mrs Tey's statement of defence to general procedure claim in action 925 of 2013 (Annexures KYT8 and KYT9).
34 The sixth affidavit filed by Mrs Tey was made by her on 26 May 2016. Mrs Tey deposes that Annexures KYT1 to KYT3 and all copies in exhibit 1 are true copies and that to the best of her knowledge and memory the contents of Annexures KYT1, KYT2 and KYT3 are true and correct. Annexure KYT2 is the second page of Annexure KYT1, which is a copy of a letter from Mrs Tey to the Chief Executive Officer of the Department of the Attorney General dated 26 May 2016 in which Mrs Tey enquires whether it is the practice of the Department to allow court documents to be filed and served by facsimile and complains about the refusal of her application for the adjournment of the taxation of costs in PER/GCLM/925 of 2013. Annexure KYT3 is a copy of a letter from Mrs Tey to the Registrar of the Fremantle Magistrates Court dated 11 May 2016 requesting that a taxation of costs that had been relisted on 25 May 2016 be relisted at a later date. Exhibit 1 to the affidavit is a copy of an application by Mrs Tey dated 11 May 2016 in PER/GCLM/925 of 2013 for an adjournment of the taxation of costs in that action and of her affidavit in support of the application.
35 The seventh affidavit filed by Mrs Tey is an affidavit made by her on 27 May 2016. Mrs Tey deposes that all exhibits are true copies and that KYT2 is true and correct. There are eighteen attachments to the affidavit, which are called exhibits. All of the attachments relate to Fremantle Magistrates Court action PER/GCLM/925 of 2013.
36 The first attachment is exhibit 2. There is no exhibit 1. Exhibit 2 is a copy of the claimant's bill of costs lodged on 20 November 2015 which costs have been assessed and allowed at $6,777.26. Exhibit 3 is a copy of notice of a pre-trial conference to be held on 25 March 2014. Exhibit 4 is a copy of an order made on 25 March 2014 directing the claimant to lodge and serve a statement of general procedure claim within 21 days, the defendant to lodge and serve a statement of defence within 21 days of being served with the statement of claim and the parties to lodge a listing conference memorandum by 27 June 2014 and correcting a data entry of the defendant's name.
37 Exhibit 5 is a copy of a letter from Mrs Tey to the solicitors for the claimant enclosing an application made on 6 February 2015 and an affidavit of Mrs Tey in support, a copy of that application and of the affidavit in support. The application sought an order that the claimant's claim be struck out with costs. In her affidavit in support of the application Mrs Tey deposed that the claimant did not lodge and serve its statement of general procedure claim within 21 days as required by the order made on 25 March 2014, did not lodge that statement of claim until 23 December 2014 and served it on Mrs Tey by mail on 14 January 2015. Exhibit 6 is a copy of an order made on 25 March 2015 dismissing Mrs Tey's application, extending the time for compliance with the orders made on 25 March 2015(sic - 25 March 2014) and listing the action for a listing conference on 27 May 2015. Exhibit 7 is a copy of an order made on 27 May 2015 adjourning the listing conference to 22 July 2015, extending the time for the filing of a listing conference memorandum to 22 July 2015, in default the claim was to be struck out and awarding costs to Mrs Tey of $25.
38 Exhibit 8 is a copy of an application by Mrs Tey dated 15 April 2015 seeking the suspension of the orders made on 25 March 2015, orders that the claimant give disclosure and inspection of documents and costs with Mrs Tey's affidavit made 15 April 2015. Exhibit 9 is a copy of an order made on 6 May 2015 dismissing Mrs Tey's application, directing her to lodge her statement of defence by 13 May 2015 in default judgment was to be entered against her, awarding costs of the response to the application to the claimant, listing the action for a listing conference on 27 May 2015 and extending the time to lodge a listing conference memorandum to 20 May 2015.
39 Exhibit 10 is a copy of a facsimile from the claimant's solicitors to the Registrar of the Fremantle Magistrates Court dated 26 May 2015 enclosing an application and affidavit in support, a copy of the application and a copy of the affidavit in support. The application was received by the court on 27 May 2015. In it the claimant sought an order that the time with compliance with the orders made on 6 May 2015 be suspended, summary judgment and costs. The affidavit in support was made by the claimant's manager of legal services on 26 May 2015. Exhibit 11 is a copy of an order made on 24 June 2015 striking out the claimant's application.
40 Exhibit 12 is a copy of a letter dated 30 June 2015 from the claimant's solicitors to Mrs Tey enclosing an application and affidavit in support, a copy of the application and a copy of the affidavit which was made by the claimant's manager of legal services on 26 May 2015. The application and the affidavit were the same as the application and the affidavit that had been lodged by the claimant on 27 May 2015. Exhibit 13 is a copy of Mrs Tey's response dated 9 July 2015 to the claimant's application in which she objected to the application and a copy of Mrs Tey's affidavit made on 9 July 2015. Exhibit 14 is a copy of a letter from the Fremantle Magistrates Court to Mrs Tey dated 3 July 2015 informing her that her request for pre-trial conference notes had not been approved and confirming that the hearing on 15 July 2015 was in relation to the application dated 27 May 2015. Exhibit 15 is a copy of an order made on 15 July 2015 granting the claimant's application, entering summary judgment against Mrs Tey and ordering that she pay the claimant $1,589.50, interest and costs.
41 Exhibit 16 is the transcript of the hearing on 25 March 2015 before Magistrate Langdon. Exhibit 17 is the transcript of the hearing on 6 May 2015 before Magistrate Langdon. Exhibit 18 is the transcript of the hearing on 27 May 2015 before Magistrate Malley. Exhibit 19 is the transcript of the hearing on 15 July 2015 before Magistrate Langdon.
42 At the hearing on 27 May 2015 the lawyer for the claimant informed Magistrate Malley that he was seeking an adjournment because the application for summary judgment had been lodged the previous day. After hearing submissions Magistrate Malley said that he would adjourn the summary judgment application to 17 June and adjourn the listing conference to 1 July. Mrs Tey informed his Honour that the proposed date for the hearing of the summary judgment application did not allow her sufficient time to be ready. His Honour said that he would list the summary judgment application on 24 June and the listing conference on 8 July. Mrs Tey said that these dates were still too soon for her. His Honour said that he would list the summary judgment application on 8 July and the listing conference on 21 July. The following exchange between his Honour and Mrs Tey then occurred:
TEY, MS: 8 July.
HIS HONOUR: Yes.
TEY, MS: Is Wednesday:
HIS HONOUR: Yes, it's a Wednesday.
TEY, MS: Yes.
HIS HONOUR: You will get something. The documents will state what the date is. So 28 July for the summary judgment and - - -
TEY, MS: Hearing.
HIS HONOUR: - - 24th of - - -
TEY, MS: No, no. 21 July.
HIS HONOUR: 21, I should say, of July for the listing conference. (ts 27/5/15 19 - 20)
43 As I have said the order issued by the court on 27 May 2015, which is exhibit 7 to Mrs Tey's affidavit, recorded that the listing conference had been adjourned to 22 July 2015, it did not record that the summary judgment application had been adjourned to any date.
44 At the hearing on 15 July 2015 Mrs Tey submitted to Magistrate Langdon that the claimant's application had been struck out. Magistrate Langdon informed Mrs Tey that if an application is struck out then the party who lodged the application can ask the court to relist it. Her Honour informed Mrs Tey that the lawyer for the claimant had written to the court asking for the application to be relisted. Her Honour asked Mrs Tey if she had been at court on the day that the application had been struck out. Mrs Tey said that she had not. After hearing submissions her Honour adjourned for a short period and then gave reasons for giving judgment in the claimant's favour.
45 Mrs Tey informed me that the two bundles of documents that she handed to me at the hearing on 3 June 2016 completed exhibit 10 and exhibit 12 of her affidavit of 27 May 2016.
46 The documents which completed exhibit 10 were copies of a letter to Mrs Tey from the City of Melville's solicitors dated 1 May 2015 enclosing the documents referred to in the particulars of the City of Melville's statement of general procedure claim, a letter from Reed Engineers Pty Ltd to Ms R Gilosca dated 23 April 2009 concerning a tree on a property adjoining 11A Barclay Road, Kardinya recommending that the tree be removed before more damage is caused, a copy of a report dated 4 March 2010 to the City of Melville by Jonathan Epps, Consultant Arboriculturist, concerning a tree at 9 Barclay Road, Kardinya in which Mr Epps expressed the opinion that the tree was dead and must be made safe to prevent damage to property and/or persons, a notice from the City of Melville to Mrs Tey dated 6 January 2010 requiring her to remove a dead tree on 9 Barclay Road Kardinya to ground level to make it safe, a letter from the City of Melville to Mrs Tey dated 9 February 2010 informing her that should the tree still be standing on 24 February 2010 the City's contractor would proceed at Mrs Tey's expense to remove the tree, a letter from the City of Melville to Mrs Tey dated 16 August 2010 informing her that unless within 24 hours the tree was made safe the City and its contractor would undertake work to make the tree safe and that it would recover the cost of the work from her, a letter from the City of Melville to Mrs Tey dated 2 September 2010 in reply to the letter from Mrs Tey dated 17 August 2010, referring to discussions with Mrs Tey and requesting a response within seven days to the City's offer to remove part of the tree at the City's expense and a statement of account from the City of Melville to Mrs Tey dated 1 February 2012 in the sum of $1,589.50 for tree pruning.
47 The documents which completed exhibit 12 were copies of the affidavit by the City of Melville's manager of legal services of 26 May 2015 and of the annexures to that affidavit which were the same documents as the additions to exhibit 10 that Mrs Tey provided to me.
Mrs Tey's outline of submissions, chronology and list of authorities
48 Mrs Tey's outline of submissions contains three paragraphs:
1. There is compelling evidence that, the learned Magistrate did not properly conduct the hearing and follow procedural fairness, and consider all evidence put before her to the date of the last hearing on 15 July 2015.
2 Magistrate Langdon could not justify to dismiss the case and grant summary judgment against the defendant Kok Yong Tey in favour of the Claimant City of Melville on the weight of the evidence in court file in Action .PER/GCLM/925 of 2013 held at Fremantle. Her exercise of discretionary power was in question.
3 The claimant's (City of Melville) claim has no merit in that all the documents filed by the claimant, the claimant has not proved and justified its claim.'
49 Her chronology is a brief chronology of the action commenced in the Magistrate's Court by the City of Melville against her.
50 Her list of authorities refers to a paper delivered by Malcolm CJ titled 'The Role of the Chief Justice', the decision of Hasluck J in Re Michelides; Ex parte Chin [2008] WASC 256 and a list of cases in which Mrs Tey has been successful.
The claim made by the City of Melville in the action in the Magistrates Court and the defence raised by Mrs Tey
51 In the action in the Magistrates Court the City of Melville made claim against Mrs Tey as the registered proprietor of land at 9 Barclay Road, Kardinya, within the boundaries of the City of Melville. It claimed in its statement of general procedure claim that at all material times there was on Mrs Tey's land a dead Port Jackson fig tree which caused a risk of damage to the public and adjoining land, referring to an arboriculture report dated 4 March 2010 and Reed Engineer's report dated 23 April 2009, that it served notices on Mrs Tey pursuant to sch 3.1, cl 9 and s 3.25 of the Local Government Act 1995 (WA) requiring her to prune and remove the tree to ground level, that Mrs Tey failed to do so, that the City of Melville instructed a contractor to do so and it made claim against Mrs Tey pursuant to s 3.26 of the Local Government Act for the costs that it incurred with that contractor, namely $1,589.50.
52 In her statement of defence to the claim Mrs Tey stated that a summary of the facts relevant to the defence was that she did not admit that the tree caused a risk of damage to the public and adjoining land, she denied that the tree was dead, that she did not admit the service of notices on her or that the City of Melville had incurred the expense it claimed, that she did not admit those matters on the basis that there was no evidence that the notices in the form of letters sent were signed by persons expressly authorised to do so and that various staff members of the City of Melville with different job titles had signed the letters. In that statement of defence Mrs Tey stated that the legal basis of her defence to the claim was s 9.49 of the Local Government Act and that her basic contention was that the notices given by the City of Melville to her were not technically and properly given because there was no evidence that the persons who signed the letters were approved to do so.
The decision of Magistrate Langdon
53 In her reasons for decision Magistrate Langdon referred to the issues raised by the parties in the action. Her Honour then referred to and quoted s 3.26(2) and s 3.26(3) of the Local Government Act. Her Honour said that she accepted the submission of the lawyer for the City of Melville. Her Honour then referred to and quoted from the judgment of Davis DCJ in Deputy Commissioner of Taxation v Roget [No 2] [2014] WADC 25 as to the principles to be applied in an application for summary judgment.
54 Her Honour then referred to a submission by Mrs Tey that the application for summary judgment had not been served on her and said that when her Honour had asked Mrs Tey if she had received and read the application and the annexures to it Mrs Tey had indicated that she had done so. Her Honour referred to Mrs Tey's submission that the tree was not dead and that the notices given to her were not signed by an authorised person pursuant to s 9.49 of the Local Government Act.
55 Her Honour quoted s 9.49 of the Local Government Act. Her Honour said that after reading all the documents she found that sch 1 (no doubt her Honour was referring to sch 3.1), s 3.25 and s 3.26 of the Local Government Act were complied with and that there was no dispute by Mrs Tey that the notices were given. Her Honour then noted that the City of Melville had informed Mrs Tey of her right to appeal to the State Administrative Tribunal against its decision to remove the tree, but that she had not appealed against the decision. Her Honour said that Mrs Tey had failed to comply with the notice from the City of Melville to make the tree safe and accordingly the City had the power to remove the tree and to recover the cost of removal as a debt due from Mrs Tey.
56 Her Honour referred to cl 9 of sch 3.1 of the Local Government Act and said that the City of Melville had relied upon the expert opinions of a horticulturist and an engineer that the tree was unsafe, posed a danger to persons and required removal. Her Honour held that the notices given to Mrs Tey were given under pt 3, div 3 of the Local Government Act, specifically s 3.27 (no doubt her Honour meant s 3.25) and that it would be an absurdity if the City of Melville were required in respect of every letter and notice to authenticate the letter or notice with the common seal of the City. Her Honour said that there was nothing in s 3.25 to require the common seal to be affixed to the notices given to Mrs Tey. Her Honour said that s 9.49 referred to the authentication of documents and does not use the word 'notice' whereas s 3.25 deals with notices and how they are to be given and by whom they are to be given. Her Honour said that it was proper for the City of Melville to rely upon s 3.25 rather than s 9.49. Her Honour said that even if s 9.49 were to apply that section provides that an employee of the local government who purports to be authorised by the CEO can sign a document. Her Honour said that she preferred the submission that s 3.25 and not s 9.49 applied in this case and that there was no dispute that the notices were given to Mrs Tey.
57 Her Honour then noted that Mrs Tey did not intend to adduce any expert evidence to refute the evidence that the tree was a danger and needed to be removed. Her Honour referred to Mrs Tey's allegation that the tree had been poisoned and said that Mrs Tey did not propose to call any evidence to prove that assertion.
58 Her Honour said that it was clear from the documents that had been lodged that there was no real question to be tried, there was no defence to the prima facie claim of the City of Melville and that it was overwhelmingly her view that Mrs Tey had not satisfied the court that her defence had a reasonable prospect of succeeding. Her Honour entered summary judgment in favour of the City of Melville in the sum of $1,589.50 plus interest and costs.
Mrs Tey's proposed grounds of judicial review
59 The four grounds on which Mrs Tey seeks to apply of judicial review are:
1 That I had sought legal counsel, and had given pro bono advice from counsel that I the Plaintiff do have an arguable case.
2 It was arguable, on the materials before the learned Magistrate that the Magistrate's interpretation of sections 3.25 and 9.49 of the Local Government Act 1995 was wrong as a matter of law because she failed to give appropriate weight to the requirement that a Notice under the Local Government Act 1995 must be properly issued.
3 That the order that the Defendant pays the costs of the entire case did not pay any regard to the fact that the claim is a minor case. And that the Magistrate did not give time to the Plaintiff Kok Yong Tey to challenge the question of costs against her orders made and as well against orders sought for costs by the Claimant's lawyers on 15 July 2015.
4 There was no justifiable reasons given by the Claimant's lawyers to ask for costs on 15 July 2015.
60 As I understand those proposed grounds Mrs Tey wishes to make two challenges to the learned Magistrate's decision: a challenge to the entry of summary judgment and a challenge to the costs order.
The entry of summary judgment
61 Having heard Mrs Tey as I understand her case there are two bases on which Mrs Tey wishes to challenge the entry of summary judgment: one basis is that the application for summary judgment was struck out on 24 June 2015. The other basis is that the notices under s 3.25 of the Local Government Act served on Mrs Tey were not effective because they had not been endorsed with the common seal of the City of Melville or signed by the Chief Executive Officer or by an employee of the Chief Executive Officer who purports to be authorised by the Chief Executive Officer to sign the notices. In my view there is no prima facie ground for judicial review on either basis.
62 As I have noted there was some lack of clarity at the hearing on 27 May 2015 as to when the application for summary judgment was to be heard and the order issued following the hearing on 27 May 2015 did not specify when the application for summary judgment was to be heard. Mrs Tey did not attend the hearing on 24 June 2015. I infer that the City of Melville's lawyers also did not attend. The application appears to have been struck out of the list on that day. It was not determined on its merits. The court relisted the application for hearing on 15 July 2015 and Mrs Tey was given notice of that hearing date. In my view the learned Magistrate was able to hear and determine the summary judgment application on 15 July 2015.
63 The other basis on which Mrs Tey seeks to challenge the decision of the learned Magistrate concerns the endorsement of the notices under s 3.25 of the Local Government Act. In my view the learned Magistrate was clearly correct in holding that s 9.49 deals with the authentication of documents and not the giving of notices. Section 3.25 requires only that the local government give a notice in writing. The provision for a local government to give a notice in writing contained in s 3.25 is similar to the provision in s 33 of the Bush Fires Act 1954 (WA) for a local government to give a notice in writing. In Columbia Holdings Pty Ltd v City of Armadale [2012] WASC 422 Pritchard J held that a notice under s 33 of the Bush Fires Act did not require that the notice be issued by the council or Chief Executive Officer of the local government. As her Honour said at [31] the Local Government Act contemplates that a local government will perform its functions by acting through persons other than the Chief Executive Officer. The City of Melville had given Mrs Tey notices required by s 3.25. There was no need for those notices to be endorsed with the common seal of the City of Melville or signed by the Chief Executive Officer or by an employee of the Chief Executive Officer who purports to be authorised by the Chief Executive Officer to sign the notices.
64 The learned Magistrate was satisfied that Mrs Tey had received the notices. In my view the learned Magistrate was clearly correct in her decision that the City of Melville was entitled to summary judgment on its claim. Her Honour applied the test in s 18(2) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) of whether Mrs Tey had satisfied the court that the defence had a reasonable prospect of succeeding. This test required her Honour to have a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial: Shilkin v Taylor [2011] WASCA 255 [40] (Newnes JA). Her Honour applied the correct test and was satisfied to that standard. I conclude that Mrs Tey has not demonstrated that she has prima facie grounds for an arguable case with reasonable prospects of success in her challenge to the entry of summary judgment against her.
The costs order
65 The claim made by the City of Melville was for the sum of $1,589.50. This is not more than the minor cases jurisdictional limit under the Magistrates Court (Civil Proceedings) Act. The court could therefore only make an order for costs other than court fees, service fees and the costs of enforcing judgment if satisfied that because of exceptional circumstances an injustice would be done to the City of Melville if the City's costs were not ordered to be paid or Mrs Tey's defence was wholly without merit: s 25(5) and s 28(3) Magistrates Court (Civil Proceedings) Act. In awarding costs to the City of Melville her Honour does not seem to have considered that limitation on the power to award costs. Her Honour did say Mrs Tey had not satisfied the court that her defence has a reasonable prospect of succeeding (ts 15/7/15 page 52), but as I read her Honour's reasons, her Honour may have there been referring only to the issue of whether the City was entitled to summary judgment, not to the issue of whether Mrs Tey's defence was wholly without merit.
66 It is possible that in making the costs order her Honour made an error of law and so exceeded her jurisdiction by failing to have regard to the limitation on the power to order costs. It is on her application for judicial review of the costs order that Mrs Tey may have a prima facie ground that she is entitled to a review order. Pursuant to s 6(6) of the Act I order Mrs Tey to serve her application, the accompanying affidavits and these reasons on the learned Magistrate, the Attorney General and the City of Melville.