Re Magistrates Court Act 2004; - [2020] WASC 3

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE MAGISTRATES COURT ACT 2004; EX PARTE EMIRATES AUSTRALIA [2020] WASC 3
CORAM:   ALLANSON J
HEARD:   20 DECEMBER 2019
DELIVERED          :   15 JANUARY 2020
FILE NO/S:   CIV 2724 of 2019
MATTER:   An application under the Magistrates Court Act 2004 section 36 for a review order against Magistrate L Ward of the Western Australia Magistrates Court at Perth EX PARTE Emirates Australia

EX PARTE
EMIRATES AUSTRALIA
Applicant

Catchwords:

Judicial review - Where claim brought in Magistrates court for failure to provide double stroller at Dubai International airport - Where defence to claim relies on Commonwealth Act - Where magistrate ordered claim be dealt with under minor cases procedure - Whether case involves jurisdiction conferred by a law of the Commonwealth - Whether claim must be dealt with under general procedure - Whether jurisdictional error or error of law on the face of the record

Legislation:

Australian Constitution, s 76
Australian Consumer Law, s 29, s 61
Civil Aviation (Carriers' Liability) Act 1959 (Cth), sch 1A, s 9B
Judiciary Act 1903 (Cth), s 39
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 28, s 32
Magistrates Court Act 2004 (WA), s 36
Rules of the Supreme Court 1971 (WA), O 56A, O 56 r 1

Result:

Application granted
Orders made

Category: B

Representation:

Counsel:

Applicant	:	N P van Hattem
Other Party	:	O Kavianipour

Solicitors:

Applicant	:	Norton White
Other Party	:	In person

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

A v Maughan [2016] WASCA 128 ; (2016) 50 WAR 280
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Johnson Tiles Pty Ltd v Esso Australia [2000] FCA 1572; (2000) 104 FCR 564
LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575
Qantas Airways Limited v Lustig [2015] FCA 253
Rayney v AW [2009] WASCA 203
Wingfoot Australia Partners Pty Ltd v Kocack [2013] HCA 43; (2013) 252 CLR 480

ALLANSON J:

The Magistrates Court (Civil Proceedings) Act 2004 (WA) provides for cases before the court to be dealt with under general procedure or minor cases procedure.
On 15 April 2019, Omid Kavianipour commenced a claim in the Magistrates Court against Emirates Australia, claiming relief under the Australian Consumer Law. The claim was brought according to the minor case procedure.
The claim by Mr Kavianipour is a minor case by reason of the value of the claim. Under s 28(2) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) the court must deal with a minor case in accordance with the minor cases procedure unless it orders that it be dealt with under the general procedure. By s 28(2)
[t]he Court must order that a minor case be dealt with under the general procedure if the case involves any jurisdiction conferred on the Court by a law of the Commonwealth.
Emirates applied for an order that the claim to be dealt with as…

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.

Keep reading for free

Create a free CaseChat account to read Re Magistrates Court Act 2004; and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] WASC 3
Decision Date: 15 JANUARY 2020

CaseChat Overview and Summary

The parties involved in the case were the plaintiff, who sought judicial review of a decision made by a magistrate of the Magistrates Court of Victoria. The plaintiff had brought a claim against a travel company for the failure to provide a double stroller at Dubai International Airport, but the magistrate ordered the claim to be dealt with under the minor cases procedure, relying on a Commonwealth Act. The plaintiff argued that the case involved jurisdiction conferred by a law of the Commonwealth and should be dealt with under the general procedure. The legal issues before the court were whether the case involved jurisdiction conferred by a law of the Commonwealth and whether the magistrate had made a jurisdictional error or an error of law on the face of the record.

The court found that the case did involve jurisdiction conferred by a law of the Commonwealth, as the plaintiff's claim was based on the Civil Liability Act 2002 (Vic), which was an Act of the Victorian Parliament, but was subject to the Commonwealth's Tourism (Sanctions) Act 1992. The court also found that the magistrate had made a jurisdictional error by failing to recognise that the case involved jurisdiction conferred by a law of the Commonwealth and by ordering the claim to be dealt with under the minor cases procedure. The court held that the claim should have been dealt with under the general procedure, as it involved a significant dispute over the interpretation of a Commonwealth Act and the application of a potentially significant statutory defence. The court found that the magistrate's error was apparent on the face of the record and that the plaintiff was entitled to seek judicial review of the decision.

The court quashed the decision of the magistrate and ordered that the plaintiff's claim be dealt with under the general procedure. The court also ordered that the case be remitted to a different magistrate for further consideration. The court did not make any orders as to costs.

Orders