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
Chin v Thies [2008] WADC 71
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
Zucal v Harper (2005) 29 WAR 563

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…

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 Michelides; Ex parte Chin

Details

AGLC: Re Michelides; Ex parte Chin [2008] WASC 256
Case: [2008] WASC 256
Decision Date: 7 NOVEMBER 2008

CaseChat Overview and Summary

The case of Re Michelides; Ex parte Chin involved a dispute where Chin sought a review of a decision made by a magistrate in a civil matter. The applicant, Chin, sought relief from a settlement deed and related consent judgment, alleging duress and undue influence, and questioning the magistrate's jurisdiction in handling the matter. The Federal Court was tasked with determining whether the magistrate had the authority to make the orders in question and if the settlement deed and consent judgment were valid.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Re Michelides; Ex parte Chin [2008] WASC 256

Most Recent Citation

Re Pamela Hogan Magistrate Of the Magistrates Court At Perth [2009] WASC 31

Cases citing this decision · 11 of 11 shown

Hemmett v Market Direct Group Pty Ltd
[2018] WASC 214 Para 1

…alia Ltd [No 2] [115]. [18] Cf Saldanha v Fujitsu Australia Ltd [No 2] [122]. [19] Blum v Boothman [8], [18], [20]. [20] Re Michelides; Ex parte Chin [2008] WASC 256 [74] - [76], [96], [110], [146] - [147]; Saldanha v Fujitsu Australia Ltd [2010] WASC 105 [18] - [19], [33], [35]. But cf Saldanha v Fujitsu Australi…
City of Stirling v Murphy
[2018] WADC 35

…Kioa v West (1985) 159 CLR 550 Mowday v Shire of Merredin [2013] WASCA 182 Re Burton; ex parte Lowe [2003] WASCA 306 Re Michelides; ex parte Chin [2008] WASC 256…
Re Magistrate Langdon
[2016] WASC 171

…eneral 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 Aus…
Yates v CRAYBROOKE Nominees Pty Ltd
[2014] WADC 28

…a) Pty Ltd [No 2] [2009] WASCA 28 M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 Re Michelides; Ex parte Chin [2008] WASC 256 Re Monger; Ex parte Cross [2004] WASCA 176 Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 Zurich Australian Insurance Limited v Metal Minera…
Stewart v City of Belmont
[2013] WASC 366

…ntiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Rayney v AW [2009] WASCA 203 Re Michelides; ex parte Chin [2008] WASC 256 Saad v Baron [2012] WASC 507 Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 Tey v City of Gosnells [2010] WASC 96 Timbarra P…
Re Mr R H Bromfield;
[2012] WASC 303

…Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Rayney v AW [2009] WASCA 203 Re Michelides; Ex parte Chin [2008] WASC 256 Tey v City of Gosnells [2010] WASC 96…
Principal Registrar of the Supreme Court v Chin
[2012] WASC 7

…[2010] HCASL 104 Re Hall; Ex Parte Chin [No 2] [2011] WASC 155 Re Justice Kenneth Martin; Ex Parte Chin [2010] WASC 212 Re Michelides; Ex parte Chin [2008] WASC 256 Re Michelides; Ex Parte Chin [No 2] [2010] WASC 169 Re President of the State Administrative Tribunal of Western Australia (SAT), Justice Chaney, Ex…
Chin v Thies
[2010] WASCA 230 Para 16

…te Musk and Magistrate Michelides respectively, and stayed the proceedings in the Magistrates Court until further order: Re Michelides; Ex parte Chin [2008] WASC 256 [152]. His Honour made no order in respect of the decision of Commissioner Herron. No date was set for the hearing of the review order but orders wer…
Re Michelides; Ex Parte Chin [No 2]
[2010] WASC 169 Para 22

…The history in respect of the Fremantle Magistrates proceedings is set out in the reasons for judgment of Hasluck J in Re Michelides; Ex parte Chin [2008] WASC 256. It is also ascertainable in the reasons for judgment of Commissioner Herron in respect of the plaintiff's appeal against those decisions to the Distri…
Saldanha v Fujitsu Australia Ltd
[2010] WASC 105 Para 11

…Finally, Ms Saldanha relied on the decision in Re Michelides; Ex parte Chin [2008] WASC 256. In that case, Hasluck J granted a review order directed to two decision of different magistrates, notwithstanding that one of those decisions had been the subject of an unsuccessful appeal to the District Court. That was a…
Re Pamela Hogan Magistrate Of the Magistrates Court At Perth
[2009] WASC 31 Para 3

…e granted but the operation of a review order is now wider in its scope. That was the analysis conducted by Hasluck J in Re Michelides; Ex Parte Chin [2008] WASC 256.…

View all 11 citing cases →

Cases cited in this decision · 19 of 19 shown

Buckland v The Department of Corrective Services / Visiting Justice Mr R Machell, C/O the Superintendent, Mr R Jennings, Casuarina Prison
[2008] WASC 177 Para 6

…As to other forms of relief, I draw upon certain observations I made recently in Buckland v The Department of Corrective Services [2008] WASC 177 as follows: Wherever the legislature entrusts to any body of persons other than the superior courts the power of imposing an obligation upon individuals or affecting the…
Mills v Hendriksen
[2008] WASC 79 Para 6

…to the nature of the statutory provisions and the circumstances in the particular case: Kioa v West (1985) 159 CLR 550, 615, 633; Mills v Hendriksen [2008] WASC 79 at [113] - [114]. If a body required to act judicially falls into error then relief can be obtained via the prerogative writs of certiorari and prohi…
Re an Application Under the Magistrates Court Act 2004; Ex parte Bartholomew
[2008] WASC 52 Para 1

…In Re Ex Parte Bartholomew [2008] WASC 52 Murray J made the following observations about the making of a review order: The Magistrates Court Act was proclaimed to come into operation on 1 May 2005 (Government Gazette 31 December 2004 p 7127). In the first matter to come before the court, Thompson v Lane [2005] WA…
Re An Application Under the Magistrates Court Act 2004; [No 2]
[2007] WASC 255 Para 1

…r relief, the party moving the court to make an order under s 36(4). In Re an Application under the Magistrates Court Act 2004; Ex parte Snook (No 2) [2007] WASC 255, Simmonds J, at [101], expressed the view that at least in a case of denial of natural justice, as was that case, the discretion within s 36(4) was i…
Re an application under the Magistrates Court Act 2004; Ex parte Brecker
[2007] WASC 151 Para 1

…fficer' is defined by s 3 to mean a magistrate or other judicial officer. In Re an Application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151, Beech J, at [49], held that, consistently with the use of the word 'may' in s 36(4), the powers of this court to make final orders on the hearing of…
Thompson v Lane
[2005] WASC 281 Para 1

…imed to come into operation on 1 May 2005 (Government Gazette 31 December 2004 p 7127). In the first matter to come before the court, Thompson v Lane [2005] WASC 281, which was heard and delivered in December 2005, Simmonds J noted that s 36 was clearly intended to take the place of the prerogative writs of mandam…
Zucal v Harper
[2005] WASCA 76 Para 6

…plication bears a most serious responsibility because the court is asked to disregard the usual requirement of hearing the other side: Zucal v Harper (2005) 29 WAR 563.…
Ridout v O'Brien
[2004] WASC 137 Para 11

…ot seek to litigate matters that were the subject of earlier proceedings by reliance on evidence on which the party failed at trial: Ridout v O'Brien [2004] WASC 137.…
DJL v Central Authority
[2000] HCA 17 Para 3

…t is erroneous, but nonetheless correctly expresses the intention of the court, it may be set aside or varied only on appeal: DJL v Central Authority (2000) 201 CLR 226.…
Perpetual Trustees WA Ltd v City of Joondalup
[1999] WASCA 108 Para 5

…concerning writs of certiorari suggests that an arguable case is one that has some prospect of success: Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108.…
Hot Holdings Pty Ltd v Creasy
[1996] HCA 44 Para 6

…y falls into error then relief can be obtained via the prerogative writs of certiorari and prohibition. For example, in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 the High Court held that a preliminary decision or recommendation made by a mining warden, if it is one which constitutes a condition precedent to an…
Craig v South Australia
[1995] HCA 58 Para 6

…mpeting applications for a mining tenement. These principles are also reflected in the decision of the High Court in Craig v State of South Australia (1995) 184 CLR 163 where it was said at 177 that a body obliged to act judicially falls into jurisdictional error if it mistakenly asserts or denies the existence of ju…
Kioa v West
[1985] HCA 81 Para 6

…rements of procedural fairness may vary according to the nature of the statutory provisions and the circumstances in the particular case: Kioa v West (1985) 159 CLR 550, 615, 633; Mills v Hendriksen [2008] WASC 79 at [113] - [114]. If a body required to act judicially falls into error then relief can be obtained via…
Director Of Public Prosecutions For Northern Ireland v Lynch
[1975] UKHL 5 Para 3

…rse of dismissing the appeal: After the event and in this appeal, Mr Nicholas Chin made much of having his 'Will deflected' employing a line from the DPP for Northern Ireland v Lynch (1975) 1 All England reports [ sic ] Lynch v Director of Public Prosecutions for Northern Ireland [1975] 1 All ER 913; [1975] AC 653. But if it fell to me t…
Bailey v Marinoff
[1971] HCA 49 Para 2

…In Bailey v Marinoff (1971) 125 CLR 529 Barwick CJ expressed the rule in this way: Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my o…
McDonald v McDonald
[1965] HCA 45 Para 10

…h was not available to him or her and could not have been discovered with reasonable diligence before the judgment was delivered: McDonald v McDonald (1965) 113 CLR 529 at 532.…
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott
[1933] HCA 33 Para 5

…damus, Rich, Dixon and McTiernan JJ made these observations in the leading case of The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228: A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under th…
[2008] WADC 71
[2008] WADC 71 Para 3

…On 20 May 2008 the learned commissioner delivered lengthy reasons for decision directed to these issues: Chin v Thies [2008] WADC 71.…
[1975] AC 653
[1975] AC 653 Para 3

…P for Northern Ireland v Lynch (1975) 1 All England reports [ sic ] Lynch v Director of Public Prosecutions for Northern Ireland [1975] 1 All ER 913; [1975] AC 653. But if it fell to me to be satisfied on balance, I would not be so satisfied. Since the judgement he has protested much about the duress but there i…

Legislation cited in this decision · 3

Magistrates Court (Civil Proceedings) Act 2004 (WA)
6 2 mentions (from Para 2)
Magistrates Court Act 2004 (WA)
28 2 mentions (from Para 1)
Transfer of Land Act 1893 (WA)
138B 2 mentions (from Para 3)