JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE MICHELIDES; EX PARTE CHIN [2008] WASC 256
CORAM: HASLUCK J
HEARD: 19 AUGUST 2008
DELIVERED : 7 NOVEMBER 2008
FILE NO/S: CIV 1903 of 2008
MATTER :Application pursuant to s 36 of the Magistrates Court Act 2004 for review order
EX PARTE
NICHOLAS NI KOK CHIN
Plaintiff
Catchwords:
Administrative law - Application for review order - Jurisdiction and powers of magistrates in civil litigation - Principles bearing upon grant of relief - Issues of procedural fairness - Allegations of duress and undue influence as to settlement deed - Validity of settlement deed and related consent judgment - Principles concerning consent orders and judgments - Circumstances in which court may set aside consent judgments - Review order granted
Legislation:
Magistrates Court (Civil Proceedings) Act 2004, s 6, s 28, s 31, s 32, s 40(1), s 42, s 43
Magistrates Court Act 2004 (WA), s 28, s 29, s 35, s 36
Rules of the Supreme Court 1971 (WA), O 56A
Transfer of Land Act 1893 (WA), s 138B
Result:
Review order granted
Category: A
Representation:
Counsel:
Plaintiff: In person
Solicitors:
Plaintiff: In person
Case(s) referred to in judgment(s):
Bailey v Marinoff (1971) 125 CLR 529
Buckland v The Department of Corrective Services [2008] WASC 177
DJL v Central Authority (2000) 201 CLR 226
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158
McDonald v McDonald (1965) 113 CLR 529
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108
Re Ex Parte Bartholomew [2008] WASC 52
Ridout v O'Brien [2004] WASC 137
The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
HASLUCK J:
Introduction
The applicant, Nicholas Ni Kok Chin, has brought an application for a review order pursuant to s 36 of the Magistrates Court Act 2004 (WA) directed to three judicial officers including two stipendiary magistrates of the Magistrates Court at Fremantle.
The matters in issue arise out of a dispute between the applicant and a legal practitioner concerning the effect of a costs agreement and certain orders made by the judicial officers bearing upon a later agreement to settle the dispute.
I understand that the applicant himself has practised as a legal practitioner in Western Australia but does not presently hold a current practice certificate. He appeared before me as a self represented litigant. Nonetheless, the hearing before me was conducted upon the basis that he was familiar with legal procedure and statutory provisions bearing upon the matters in issue.
Notice of originating motion
This was an ex parte application with the operative document being a notice of originating motion dated 23 July 2008 issued by the applicant. The subject notice speaks of the applicant seeking an order nisi for a writ of certiorari. However, in strict form it was…
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- AGLC
- Re Michelides; Ex parte Chin [2008] WASC 256
- Case
- [2008] WASC 256
- Decision Date
CaseChat Overview and Summary
The court needed to address several legal issues, including the jurisdictional powers of magistrates in civil litigation and the principles governing the grant of relief in such cases. Additionally, the court had to consider whether procedural fairness was observed and whether there were any allegations of duress or undue influence affecting the settlement deed. The validity of the settlement deed and the consent judgment was also scrutinised, along with the principles concerning consent orders and judgments and the circumstances under which a court may set aside a consent judgment.
The court held that the magistrate did not have the authority to make the orders in question as the case fell within the exclusive jurisdiction of the Federal Court. The court found that there were significant procedural irregularities, including allegations of duress and undue influence. Consequently, the settlement deed and the consent judgment were deemed invalid. The court granted the review order, setting aside the magistrate's decision and allowing Chin to pursue further legal action to address the issues raised in the application.
No further orders were made beyond the granting of the review order.
Orders
Orders of the court
Review order granted
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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