Re Michelides; Ex parte Chin - [2008] WASC 256

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
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 an application for a review order pursuant to the statutory provisions I will come to shortly. These contemplate that the proceedings will be initiated by an ex parte application and, as with an application for an order nisi, the initial ex parte hearing may be followed by a further hearing at which a court officer or person affected may be required to show cause as to why a final order should not be made.
The subject notice was lengthy. I will turn to the details of it in due course. In essence, the applicant seeks to set aside a judgment entered against him in the Magistrates Court at Fremantle and certain related orders as to legal costs, notwithstanding that he has previously pursued two appeals concerning this matter both of which were unsuccessful.
The application for a review order was supported by the applicant's first affidavit sworn 23 July 2008 which was lodged with the subject notice. The applicant was granted leave at the initial hearing before me to file a further affidavit directed to certain matters that required clarification. This led to the applicant filing a second affidavit sworn 29 August 2008 and a third affidavit sworn 18 September 2008.
The question immediately before me is whether the applicant has made out an arguable case in respect of the position he contends for which is sufficient to justify the making of a preliminary order (in the nature of an order nisi) requiring that the papers be served and with provision being made for a further hearing.
If such an order be made the judicial court officers in question and the party principally affected, being in this case the legal practitioner who sought to recover certain legal costs, would be afforded an opportunity to show cause at the further hearing.
I must begin by turning to the background to the dispute.

Background

It seems that in mid 2004 the applicant's son, Paul Chin, signed a contract for the purchase of a lunch bar. I note in passing that the applicant himself was a witness to the signature of his son as purchaser on the contract document in question.
The applicant's son, with the assistance of his family, took possession of the subject business but soon formed a view that misrepresentations had been made as to the income of the business. This led to the commencement of legal proceedings.
The applicant, who was familiar with the legal procedures by virtue of his training as a lawyer, had the capacity to advance the claim. However, possibly as a result of what the applicant called 'a conflict of interest situation' (ts 9), the applicant found his way to the presence of a legal practitioner, Tim Thies, who took instructions from him. For ease of reference I will henceforth refer to Mr Thies as 'the respondent' because he is the person to whom the application for an order to review is essentially directed.
It appears from what was put to me at the preliminary hearing that it is a matter of controversy as to the nature of the instructions given to the respondent.
I do not intend to express any concluded view about that aspect of the matter having regard to the limited materials presently before me and the fact that the respondent has not been afforded an opportunity to be heard. However, for the sake of an orderly exposition, and as a means of understanding what later transpired, it will be sufficient to indicate in very general terms that, according to the applicant, a very limited form of legal assistance was required. This was because the applicant himself had the capacity to determine what should be done in the subject proceedings, provided the respondent was available to file and receive legal documents as the case progressed.
I note in passing that the materials before me include an email dated 25 October 2004 sent by the applicant to the respondent which indicates that the applicant would prepare certain of the legal documents and that the respondent would be paid a 'nominal sum' of 25% of all legal costs claimable from the defendants for every stage of the litigation.
On the other hand, it seems that the respondent's understanding was that he was to act for and on behalf of the applicant and his son in the usual way of a legal practitioner supervising the conduct of legal proceedings. The respondent proceeded to charge for his services accordingly in the manner provided for by the costs agreement mentioned below which might arguably be said to override or displace any prior arrangements proposed or contemplated by the applicant.
It is the quantum of these charges which eventually gave rise to a state of disputation between the applicant and his son on the one side and the respondent on the other. However, it appears to be common ground that at about the time the initial instructions were given a written retainer or costs agreement dated 3 November 2004 was prepared and discussed by the parties. This stated that the applicant and his son would be responsible for payment of the respondent's fees and disbursements.
It appears to be common ground that both the applicant and his son were responsible for payment of the respondent's fees and services under and by virtue of the 3 November costs agreement. The subject agreement included provision also for securing the costs by a mortgage or charge upon any land owned by the applicant's son.
I note in passing that the costs agreement was effected by a letter addressed to both the applicant and his son. It was said in the respondent's letter that this document was to establish the terms and conditions upon which legal services were to be provided. Hourly rates and other charges were specified. Both the applicant and his son signed a written acknowledgement that they approved the charging of costs at rates higher than the Scale of Fees approved by the Legal Costs Committee.
I note in passing also that for present purposes the applicant places considerable reliance upon a letter dated 3 November 2004 addressed to the applicant and his son which was signed by the respondent and acknowledges receipt from the applicant of the sum of $500 being a fee for instructions to act in the litigation. The letter says also 'Nicholas to approve bill/time costing'. The applicant's contention is (as appears from par 9 of his first affidavit) that the costs agreement was subject to this assertion as an overriding clause. It is said also that there was never any consensus ad idem between the parties as to what had been agreed.

Subsequent events

The respondent submitted bills for costs to his clients but it seemed to the applicant that these were excessive having regard to the applicant's view of the arrangements made between the parties and the extent of the work performed.
This led to a falling out between the parties with the result that the respondent lodged a caveat against property belonging to the applicant's son on 11 December 2006.
A notice was issued by the applicant's son pursuant to s 138B of the Transfer of Land Act 1893 (WA) which led to the respondent commencing proceedings in the Supreme Court, being CIV 1112 of 2007, seeking orders extending the operation of the caveat. The proceedings were brought against the applicant's son, Paul Chin, and not against the applicant.
The caveat proceedings came on for hearing before Templeman J on 8 February 2007. Orders were made for caveat K 17968 to be extended until further order subject to the respondent commencing proceedings in the Magistrates Court for recovery of the alleged debt.
It seems that in the course of those proceedings the respondent offered to have his bills taxed but the applicant and his son did not act upon this offer and seek a taxation.

Proceedings in the Magistrates Court (FR 417/07)

In the manner contemplated by Templeman J's orders the respondent commenced proceedings FR 417/07 on 23 March 2007 claiming the sum of $24,685.61 by way of costs pursuant to the subject agreement.
There were then discussions between the parties seeking to resolve the dispute as a result of which the respondent practitioner prepared a settlement deed. On 4 April 2007 by a Form 39 Written Offer of Settlement the respondent offered to settle his claim in terms of the settlement deed.
At that time the applicant's son was suffering from a psychiatric illness and was under the care of a psychiatrist, Dr Giles. Steps were therefore taken to arrange for the son's signature to the deed to be witnessed by his psychiatrist, with a certification that he was not mentally impaired, he was not suffering from side effects of any drugs as would render him incapable of understanding the deed, and he appeared to sign the deed voluntarily and of his own free will.
It was against this background that the settlement deed was signed and executed by the applicant's son on 10 April 2007.
The applicant then, on 11 April 2007, completed and filed a Form 40 Written Acknowledgement of Receipt of Offer of Settlement. The applicant himself signed the settlement deed on 12 April 2007 and completed a Form 42 Acceptance of Offer of Settlement which was sent to the respondent with a copy of the settlement deed signed by the applicant and his son.
On 13 April 2007 the applicant and his son signed a Form 43 Request for Judgment. This led to judgment being entered for the respondent in respect of action FR 417/07 at the Magistrates Court in the sum of $11,500 on 7 June 2007. The entry of judgment for the respondent by consent was effected by the registrar of the Magistrates Court.

The settlement

The effect of the settlement was that the applicant and his son jointly and severally agreed to pay the respondent $11,500 in satisfaction of the claim and to request the registrar to enter judgment dismissing the respondent's claim. The respondent was to provide a withdrawal of caveat in respect of the subject land upon the basis that the settlement deed could be pleaded as an absolute bar to the commencement or continuation of any legal proceedings by any party against the other.
On 13 April 2007 the respondent was paid the sum of $11,500 in the manner provided for by the settlement deed and in full satisfaction of the respondent's claim for costs. The applicant said at par 6 of his first affidavit that he paid the respondent 'the $5,500 from Paul and $6,000 from me'.
As it happened, the payment made to the respondent to settle the dispute was not the end of the matter.

Further proceedings (FR 944/07)

It seems that the applicant continued to harbour a sense of grievance, a feeling that he and his son had been badly treated. On 20 August 2007 the applicant commenced further proceedings in the Magistrates Court, being FR 944/07. In these proceedings he sought recovery of the so‑called 'extorted sum' of $6,000 plus damages in the sum of $1,500 and costs of $99.80.
This claim was commenced as a 'minor case' under the Magistrates Court (Civil Proceedings) Act 2004 (WA) consistently with the provisions I will come to later which establish that the minor cases jurisdictional limit in the Magistrates Court is $7,500.
This prompted the respondent on 7 December 2007 to apply for orders that the applicant's claim be dismissed on various grounds including that there were no reasonable grounds for any claim and the claim was an abuse of the court's process. In response, the applicant applied for a default judgment.
On 9 January 2008 both of these matters (arising in respect of action FR 944/07) came before Magistrate Musk. Her Honour ruled against the applicant. She ordered that the application for default judgment made by the applicant as claimant in the proceedings was to be dismissed. She held also that the applicant's claim was to be struck out and summarily dismissed. The applicant was required to pay the respondent's costs of the application and of the action to be taxed, if not agreed.

The applicant's appeal to the District Court

The applicant then lodged a notice of appeal to the District Court in respect to the rulings made by Magistrate Musk in action FR 944/07. The appeal was brought on for hearing before Commissioner Herron on 14 May 2008.
The learned commissioner identified two main issues raised by the notice of appeal being, first, whether the Magistrates Court in action FR 944/07 had power or jurisdiction to set aside the consent judgment entered in action FR 417/07 and, second, whether the consent judgment in FR 417/07 had been entered and the settlement deed had been entered into as a result of duress or illegitimate pressure placed upon the applicant by the respondent.
On 20 May 2008 the learned commissioner delivered lengthy reasons for decision directed to these issues: Chin v Thies [2008] WADC 71.
The reasons for decision speak for themselves and there is no need for me to traverse the reasons in their entirety. Put shortly, as to the first issue, having looked at the history of the dispute and the steps preceding the entry of judgment in the Magistrates Court on 7 June 2007 (which included various documents consenting to judgment in the manner contemplated by the settlement deed) the learned commissioner concluded that the judgment entered by consent was properly entered.
The commissioner held that the magistrate's finding that the court did not have power to make any order setting aside the judgment in FR 417/07 was correct as was her finding that the proceedings brought by the applicant in action FR 944/07 were improper.
This amounted to a finding that the orders made by Magistrate Musk striking out the applicant's claim for $6,000, being an attempted recovery by the applicant of part of the amount previously paid to the respondent in satisfaction of his claim for legal costs, were entirely justified.
It followed from the reasons given by the learned commissioner as to the first issue that the applicant's appeal had to be dismissed.
The learned commissioner noted that as a consequence of this ruling it was unnecessary for him to deal with the second issue concerning an alleged duress. However, for the sake of completeness, and because the matter had been fully argued, he proceeded to make some observations about the second issue.
Put shortly, having undertaken a careful review of the evidence bearing upon the circumstances in which the settlement deed came to be signed, the commissioner concluded that there was no element of illegitimate pressure or duress applied by the respondent which would justify setting aside the settlement deed or the consent judgment.
I note in passing that it frequently happens that a court will make observations about issues raised at a hearing even though the case turns upon a ruling made in respect of an earlier point. If the court has jurisdiction to rule upon the decisive point, then the further observations will not generally be regarded as giving rise to jurisdictional error, although in some circumstances they might be characterised as gratuitous or unnecessary.

The appeal to Magistrate Michelides (FR 417/07)

The consent judgment in action FR 417/07, being the action originally brought by the respondent in respect of costs allegedly due to him, had been entered by the registrar of the Magistrates Court at Fremantle on 7 June 2007 pursuant to the forms received from the parties. These terms appeared to reflect the agreement of the parties to such an outcome in order to compromise their dispute.
It seems that the applicant's lack of success in his appeal to the District Court made it clear to the applicant that the settlement deed and the related consent judgment for $11,500 in favour of the respondent was and would continue to be an obstacle to the applicant's attempt to recover any portion of the amount paid to the respondent pursuant to the compromise.
Hence, the next step taken by the applicant (after the failure of his appeal to the District Court) was to appeal against the decision of the registrar to enter the judgment, although the time for appealing such a decision had long since expired.
This appeal was brought on for hearing on 2 July 2008 before Magistrate Michelides pursuant to s 29 of the Magistrates Court Act 2004 (WA). It was fully argued on both sides. His Honour reserved his decision and in due course, as appears from the transcript of a further hearing on 17 July 2008, he gave lengthy reasons for decision as to why the appeal had to be dismissed.
His Honour noted in the course of his reasons for decision that the judgment of Commissioner Herron addressed many of the arguments and submissions raised in the further appeal. (He noted in passing also that, contrary to an observation made by the commissioner, there were two separate costs agreements or retainers being one signed by the applicant on 3 November 2004 and the other by the applicant's son, Paul Chin, on 2 November 2004 but delivered on 7 November 2004, although the Commissioner's conclusion was not affected by this matter of detail).
His Honour then held that he was not prepared to extend the time for appealing because the proceedings before him were clearly an afterthought. Further, having regard to the reasoning of Commissioner Herron, his Honour held that he did not have the jurisdiction on appeal to set aside a consent judgment that had been regularly entered.

These rulings were sufficient to dispose of the appeal. Nonetheless, his Honour went on to consider the substantive issues raised in the appeal 'the lynchpin of which is clearly the factual and legal questions of whether duress existed such as to defeat the consent judgment'.
His Honour then held that none of the written material before the registrar at the time she resolved to enter the judgment gave rise to any reasonable conclusion of duress. In his view, it was significant that the consent documentation was signed in April 2007 but the judgment was not entered until 7 June 2007, being a breathing space or period of delay within which remedial action could have been taken, if thought to be necessary.
His Honour made these observations in the course 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 to be satisfied on balance, I would not be so satisfied. Since the judgement he has protested much about the duress but there is no evidence of it at or immediately before or even immediately after the time of judgement and the tone and mood of his communication, both to the court and to the respondent at the time of judgement, are far more consistent with a genuine desire to end the litigation and to pay the agreed amount promptly.
The findings I have made from Mr Nicholas Chin's argument in this appeal is that his allegations of duress were an afterthought and a last ditched effort to recover a position that he now regrets. There is much to establish that he and his son freely entered into all aspects of the settlement; that they cooperated and communicated several times during April, May and June 2007 with the respondent and with the registrar to bring it about and that they confirmed it without hesitation. There is no corroborative evidence of disability or duress which could properly displace the position as it now stands. As to both appellants I dismiss the appeal.
I note in passing that the applicant was required to pay the costs of the unsuccessful appeal. This and other orders for costs arising out of the rulings against him have added to his sense of grievance.

The applicant's application for a review order

It is against this background that the applicant now seeks to challenge the presence of a judgment against him in the Magistrates Court at Fremantle by applying for a review order.
Put shortly, the applicant still feels aggrieved by the fact that he had to pay a large amount by way of costs to the respondent for legal services and wishes to retrieve all or part of the amount paid. However, he recognises that the settlement deed and the related court orders stand in his way. Thus, he seeks to set aside the rulings and consequential orders made by Magistrate Musk in action FR 944/07 and Commissioner Herron in District Court appeal No 6/08 and the rulings made by Magistrate Michelides in dealing with an appeal against the consent judgment in action FR 417/07.
The applicant contends that the judicial officers had no jurisdiction to deal with the matters before them and, in any event, erred in law in making the subject rulings. If all the rulings and orders made against him are held to be flawed, and the consent judgment quashed, he may then be in a position to proceed with his claim in action FR 944/07 for recovery of the sum of $11,500 paid to the respondent, or part thereof, or to commence fresh proceedings claiming that amount or some other form of relief.
A theme running through the various grounds and particulars set out in the applicant's lengthy notice of originating motion is that the settlement between the parties reflected in the settlement deed and subsequent court forms was vitiated by duress and undue influence on the part of the respondent, having regard to the psychiatric condition of the applicant's son and the consequential pressures upon the applicant and his family at that time. The suggestion is that the respondent took advantage of his former clients by arranging for them to sign the settlement deed and the related court documents.
Before dealing with the issues raised by the subject notice of originating motion, and the question of whether the applicant has made out an arguable case that he is entitled to relief, I should point out that the materials before me include reasons for decision and transcripts of hearings that enable me to review the arguments previously advanced on each side. However, as previously indicated, I have not heard from the respondent in respect of the proceedings before me.
It will now be useful to take a closer look at the legislative framework within which this matter must be dealt including the provisions bearing upon the jurisdiction and powers of magistrates with respect to civil litigation.

Magistrates Court Act

Section 4 of the Magistrates Court Act 2004 provides that a court of record called the Magistrates Court of Western Australia is established. By s 6(1) a magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including that Act and other written laws. By s 9 the Magistrates Court has the jurisdiction conferred on it by the Act and by other written laws.
Section 10 of the Magistrates Court Act provides that the court's civil jurisdiction is set out in the Magistrates Court (Civil Proceedings) Act 2004.
It follows from the provisions mentioned earlier that the Magistrates Court Act constitutes the Magistrates Court. The provisions of that Act must be considered in conjunction with the appeal provisions of the Magistrates Court (Civil Proceedings) Act in defining the avenues of relief available to a party who wishes to challenge decisions or rulings made in the course of civil proceedings.
Accordingly, before turning to the Magistrates Court (Civil Proceedings) Act I must turn first to pt 4 and pt 5 of the Magistrates Court Act which contains miscellaneous provisions concerning the conduct of the court's business.
Section 28 provides that the rules of court can delegate certain powers to the registrar. By s 29 a person may appeal to a magistrate in respect of a decision made by a registrar.
Section 35 of the Magistrates Court Act provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a court officer. However, by s 36, if a person is aggrieved by the failure of a court officer to do any act or make any order or direction on any ground that might have justified an order of mandamus or certiorari, the person may apply to the Supreme Court for a 'review order'.
If granted, a review order will require the court officer and any person affected to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside as the case requires. The procedure for making such an application is prescribed by the Rules of the Supreme Court.
Section 36(3) provides that on an application for a review order, the Supreme Court may make any review order 'that is just', whether it has been applied for or not. The Supreme Court may grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari or make any necessary consequential orders.
By s 36(5) the Supreme Court may, if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act in respect to the matter in question, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
I pause to note that in the present case the applicant has applied for relief by way of a review order with a view to quashing or obtaining other relief in respect of a ruling made by a magistrate in civil proceedings. This application has been made after the applicant had made an unsuccessful appeal to the District Court against the ruling in question pursuant to the appeal provisions I will come to in a moment. It is also made after the applicant had taken a separate unsuccessful appeal against the registrar's decision to enter a consent judgment against the applicant.
I will have more to say about this state of affairs later but it is important to keep in mind that certiorari has traditionally be regarded as a form of review when a tribunal or court has made a jurisdictional error. It is a discretionary remedy and the existence of a right of appeal from the tribunal concerned may sometimes be a discretionary reason for withholding relief: Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158.
I am conscious, of course, that the application before me arises under new legislation which excludes relief by way of certiorari and affords a new form of relief by way of a 'review order', which allows for the relief where such an order would be 'just'. However, that can only mean what is 'just' according to law. I must also keep steadily in mind that the presence of an avenue of relief by way of appeal must have a bearing upon what is 'just' in the circumstances of the case.

Rules of the Supreme Court 1971 (WA)

The procedure in the Supreme Court concerning review orders under the Magistrates Court Act is covered by the Rules of the Supreme Court 1971 (WA) including a new O 56A that was gazetted in 2005.
By O 56A r 2 an application to the court for a review order must be made ex parte. It must be for an order requiring the court officer and any person affected by the court officer's act to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be made or set aside as the case requires.
By O56A r 3 the judge may refuse the application or make a review order and order that it should be heard by a judge in chambers or in court or by the Court of Appeal. The judge may direct that notice of the application be served on such persons as the judge directs. An order can be made that the review order operates as a stay of the proceedings in question until such time as the court specifies in the order or orders otherwise.
The statutory provisions and related rules do not specify the criteria governing the refusal or making of a review order. However, the requirement that the application be made ex parte and with provision for service upon parties likely to be affected and a further hearing in the event of a review order being made suggests that the applicant must make out an arguable case that he or she is entitled to relief by way of a review order. It is a means of filtering out unmeritorious cases so that parties will not be exposed to unwarranted expense.
Previously decided cases 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.
Under the former practice the process of applying ex parte existed in order to enable a party to come before the court quickly and simply. A party proceeding by way of ex parte application 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.
Let me now turn to the civil jurisdiction of the Magistrates Court.

Magistrates Court (Civil Proceedings) Act 2004 (WA)

Section 6 of the Magistrates Court (Civil Proceedings) Act provides that the court has jurisdiction to deal with various matters such as a claim for a debt or a claim to recover possession of personal property. Certain forms of claim are specifically included such as a claim in which the title to land is in question or a claim for damages for libel or slander.
Part 4 contains provisions concerning the procedure in 'minor cases' being a claim within the jurisdiction of the court where the value of the claim is not more than the minor cases jurisdictional limit, presently being $7,500, and after 1 January 2009, being $10,000.
By s 28 the court must deal with a minor case in accordance with the minor cases procedure unless an order is made for a minor case to be dealt with under the general procedure pursuant to a request by the parties or because the case involves an important principle of law or complex facts or issues.
By s 31 a successful party to a minor case is entitled to an order under s 25(1) in relation to the party's allowable costs. The effect of s 25 is that a successful party is entitled to an order for its costs to be paid by the unsuccessful party unless the court considers there is a good reason not to make such an order.
By s 32 no appeal lies against an order made by the court in the course of proceedings in a minor case unless the court was constituted by a magistrate in which case an appeal lies against the judgment under pt 7. Thereupon, subject to s 32(3), pt 7 applies to the appeal.
By s 32(3), despite pt 7, an appeal against a judgment in a minor case may only be made on the grounds that the minor case was not within the jurisdiction of the court or was not a minor case or that in dealing with the minor case there was a denial of natural justice.
It emerges from this that the appeal provisions lie within pt 7 of the Act. By s 40(1) a party to a case that is not a minor case may appeal to the District Court against any order made by the Magistrates Court in the course of proceedings in the case or the judgment of the Magistrates Court in the case provided the appeal is commenced within 21 days.
The appeal is to be conducted in accordance with the rules of court made by the District Court. By s 42 a party to an appeal made to the District Court may appeal to the Court of Appeal against the District Court's judgment on the appeal.
By s 43(7) of the Act the appeal court may give any judgment and make any order that the Magistrates Court could have given or made and may make an order as to the costs of the appeal.
It was pursuant to the appeal provisions in pt 7 of the Act that the applicant brought an appeal to the District Court, being the appeal dealt with by Commissioner Herron in his reasons for judgment dated 20 May 2008 mentioned earlier.
Having looked at the legislative framework I must now return to the nature of a review order and the circumstances in which such an order will be made. This brings me to certain previously decided cases.

The making of a review order

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] 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 mandamus, prohibition and certiorari which, by s 35, may not be directed to a court officer of the Magistrates Court. The term 'court officer' 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 the review were discretionary. At [55], his Honour held that although the review order required the party to whom it was directed to satisfy the court, 'that the act, order or direction should or should not be done or made or set aside,' the onus of persuasion would lie upon the applicant for 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 in the nature of a discretion to refuse relief, upon good grounds.
It is useful, for present purposes, to come to a clear understanding about how s 36(1) and (4) are intended to operate. The provisions are difficult to read because the draftsman has collapsed into two subsections what, in my respectful view, might have been more clearly expressed at greater length in separate provisions.
One thing is clear. I respectfully agree that the section is designed to be a statutory process of review by the Supreme Court of the acts, orders and directions of the Magistrates Court and of the refusal of that court to perform an act, make an order, or give a direction, in proceedings before it. It is designed to replace the formerly available prerogative writs of mandamus, prohibition and certiorari, but s 36(1) is to be read on its own terms and it would be a mistake, in my opinion, to put s 36(1) into the framework of the grounds it would have been necessary to make out to obtain a formerly available form of prerogative relief. That is not to say that it will not be instructive to consider, on a review under s 36, whether the act done, order made, direction given or refusal to do any such thing of which complaint is made, is of a kind and in circumstances which would ground an order in the nature of mandamus, prohibition or certiorari. Section 36(1) makes that inquiry directly relevant to the exercise of the powers on review, in any event. [16] - [20]
The observations made by Murray J did not bear directly upon the question of how the relief by way of a review order made pursuant to s 36 of the Magistrates Act is affected by or should be related to the relief by way of appeal which, as I have already noticed, is also available to a litigant such as the applicant. However, his Honour's observations certainly suggest that the principles to be derived from cases concerning the prerogative writs will be of assistance in determining whether discretionary relief should be afforded by way of a s 36 review order, albeit that a review order can be regarded as wider in its scope.
In other words, the structure of the legislative framework suggests that s 36 provides, as the name of the order suggests, a form of review which is directed principally to matters of jurisdiction and procedure. It is not intended to replicate the relief available on appeal by way of a rehearing of the evidence and factual matters in controversy at the original hearing.
It will therefore be useful to keep in mind the principles bearing upon the grant of relief by way of the prerogative writs including the principles mentioned earlier whereby relief may be refused as a matter of discretion where other avenues of relief are available or have been exercised. Rulings within the legal system are generally made with a view to finalising disputes between the parties.
In relation to the mandamus, 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 the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. [242]
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 legal rights, the courts are inclined to hold that such bodies are required to act judicially, that is to say, they must act within jurisdiction and they will be obliged to observe the rules of natural justice by affording to the party likely to be affected notice of the case against him and an opportunity of replying to it. The requirements 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 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 exercise of power that affects legal rights, will have the requisite legal effect upon rights to attract certiorari.
In the circumstances of that case, since the minister was required to take the warden's recommendation into account, the warden's decision had a discernable legal effect on the minister's exercise of discretion. Hence, certiorari lay to a challenge a decision by a warden to conduct a ballot for the purpose of determining the party entitled to priority in respect of competing 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 jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Further, such a body will exceed its authority and fall into jurisdictional error if it misconstrues the relevant statutory provisions or other instrument and thereby misconceives the nature of the function it is performing with extent of its powers in the circumstances of the particular case. [41] - [44]

Let me now return to the present case with a view to making some general observations.

General observations

The applicant's contentions as reflected in the grounds forming part of the subject notice, and as outlined to me in the course of argument, proceed from the premise that the applicant and his son were overcharged by the respondent practitioner and that the settlement deed was entered into as a result of duress. The applicant is therefore firmly of the view that because the assumptions underlying this view of the matter have not been accepted by the judicial officers the orders made by them are flawed and must be set aside.
I note in passing that it emerged in the course of argument that the applicant has complained about these matters to the Legal Practice Board but this has not yet led to any outcome.
However, I am obliged to keep in mind that it is not enough for an applicant simply to assert that he is aggrieved by certain conduct, or to submit (as the applicant does in his notice) that the 'dictates of her conscience' should have compelled Magistrate Musk to act 'otherwise'. In order to obtain relief the applicant must satisfy the court that he is entitled to relief having regard to the nature of the remedy sought and the relevant provisions and legal principles.
I indicated in earlier discussion that there was a disagreement between the applicant and the respondent as to the nature of the original instructions and the quantum and value of the legal services provided. There is a further difference of opinion as to whether the costs agreement entered into by the parties was conditioned by the requirement (per the respondent's 3 November letter) that time costed bills were to be approved by the applicant.
Nonetheless, it is clear from the materials before me that a settlement deed was entered into between the parties which purported to compromise the matters in issue and provide for a payment to be made to the respondent in full satisfaction of the respondent's claim for legal costs. If the compromise purportedly effected by the deed is valid this would have the effect of disposing of the differences between the parties as to all areas of disputation including differences as to the scope of the original instructions and as to whether the costs agreement was conditioned by any special requirement concerning time costing.
The settlement deed became the basis for entry of a consent judgment and for the prescribed payment of $11,500 to be made. That amount embraces the sum of $6,000 which the applicant sued for later. Accordingly, it is obvious that the applicant cannot recover the whole or any part of the amount paid in satisfaction of the claim unless the settlement deed and the related orders can be disposed of. The validity of the settlement deed, and thus the consent judgment, is the crucial issue.
This reality is reflected in the ruling made by Magistrate Musk in action FR 944/07 in which she held that the applicant's claim to retrieve a portion of the payment made was barred by the provisions of the settlement deed and the terms of the related orders. Her ruling was carefully reviewed by Commissioner Herron on appeal. There is force in Commissioner Herron's reasoning (as summarised in earlier discussion) that courts will generally not vary or set aside perfected judgments. In most cases the appropriate way to challenge the judgment is by appeal. There is force also in the reasoning of Magistrate Michelides in respect of the appeal against the registrar's decision in action FR 417/07. He held that the time to appeal should not be extended. Further, as the settlement deed underlying the consent judgment appeared to have been entered into freely it could not be impugned for duress.

Further observations

As I have indicated, it is not enough for the applicant simply to rely upon a state of grievance. It follows from my review of the legislative framework and decided cases concerning review orders that in order to make out an arguable case that it would be 'just' to grant a review order the applicant must show that the judicial officer to whom the review order is directed has misconceived or exceeded his or her jurisdiction, or infringed the rules of natural justice or erred in law.
Further, as appears from my earlier observations, the fact that an appeal has been taken against the ruling complained of in the manner allowed for by the Magistrates Court (Civil Proceedings) Act, followed by a further appeal against the registrar's decision to enter the consent judgment, are matters which weigh against the grant of a review order which is a form of discretionary relief.
In the absence of any demonstrated jurisdictional error or irregularity in the procedures governing the entry of judgment, or obvious flaw in the reasoning of the judicial officers in question, it becomes difficult for the applicant to establish to the satisfaction of this court that facts and matters exist which make it just for the orders of the judicial officers identified in the notice of originating motion to be set aside or varied.
Nonetheless, there are features of this case which have caused me concern, and compel me to review the situation at greater length. In making these further observations I wish to make it clear at the outset that I do not wish to be taken as being critical of the judicial officers. The applicant trained as a legal practitioner but the fact is, in representing himself, he did not present his case in a cogent way. His notice of motion and the supporting affidavits raise a host of issues and it has been difficult at times to discover the connecting thread. I sense that the three judicial officers who dealt with this matter previously were probably faced with difficulties of the same kind.

Specific observations

It appears from Cairns: Australian Civil Procedure (5th ed) at 496 that once a proceeding is concluded by the regular entry of the judgment the judicial role of the court is at an end. If a party is dissatisfied the only remedy is to appeal to a higher court. A court may reconsider a judgment before it is formally entered, but it may not do so after the formal entry save for prescribed exceptions such as the slip rule.
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 opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. [530]
It has therefore been said that if a judgment 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.
In the latter case, Kirby J reviewed the various considerations bearing upon the basic rule at some length at 262 to 264. He noted that the law, for very good reasons, places a high store on the finality of judgments. There would be little point in having courts to resolve disputes if no ultimate finality could be reached. People would not be able to order their affairs with certainty following the outcome of legal proceedings, but could be subjected to repeated attempts by their opponents to engage them in fresh disputation on issues they thought had been decided.
However, he went on to say that, on the other hand, because courts were constituted by decision‑makers who are fallible human beings, errors and oversights can occur. This may produce a result that would be manifestly unjust if the judgment were allowed to stand. Thus, where the earlier decision has been announced but not yet perfected it is usually possible to remedy the error and prevent injustice by having the matter relisted and persuading the court to correct the error.
He went on to observe:
Where a court is subject to appellate or other judicial review, it will often be possible within the judicial hierarchy, an error being shown, to obtain correction of a perfected order and the substitution of an order unaffected by the error brought to light. Apart from this, other means have been developed to afford exceptional relief from the affront to justice which would be done by the enforcement of a perfected order where this is in some way tainted by manifest error combined with demonstrable injustice. [92]
Justice Kirby went on to observe that in addition to these methods of overcoming the mistakes and injustices that can sometimes arise in perfected orders, the law has devised means of permitting collateral attack on such orders. This can be mounted in separate proceedings where it is alleged that the judgment was obtained through fraud. But it can also arise where it can be shown that there has been a serious denial of procedural fairness. Such remedies are necessary to maintain the integrity of the court process. He said also that the courts have been reluctant to provide an exhaustive list of the exceptions to the general rule of finality.
It is against this background that it will now be useful to turn to various observations made in Seaman: Civil Procedure Western Australia at par 43.3 to par 43.16. The learned author notes that the purpose of the rule concerning consent orders is to save costs and court time by enabling parties to give rapid effect to agreements between them without the necessity of an attendance in court or in chambers. Registrars are empowered to settle, sign and seal orders, in order to give final effect to settlements. However, the making of orders by consent is a judicial act and even when all parties consent the court may decline to make them.
While encouraging parties to litigation to settle their differences the court is jealous to protect its processes, and will not accede to an application for consent orders made in consequence of compromise arrived at by some parties to a proceeding where the effect of the orders will or may be to stifle the hearing and determination of other aspects of the proceeding which involve one of the parties to the proposed consent orders.
The learned author observes that a court may set aside any order made by consent, and intended to carry out an agreement between the parties, upon any ground on which the agreement may be set aside raised in a separate proceeding instituted for that purpose. If judgment was obtained by fraud practised on the court there are three possible courses of action depending on the circumstances; that is, an action may be brought to set aside the judgment; an application may be made in the original action; or an appeal may be taken. An appeal court may order a new trial where fraud in the conduct of the proceedings below is clearly evident. It is not necessary for the plaintiff in a new action to prove the fraud by fresh evidence which 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.
It is therefore necessary in cases of this kind for the plaintiffs to establish that they and the court were deceived and that since the trial they have discovered something material in the sense of fresh facts that either in themselves or in combination with previously known facts would prove fraud. It follows from the public interest in the finality of litigation that a party cannot 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.
The decided cases suggest also that the Supreme Court has an inherent jurisdiction to rectify situations which may perpetuate an injustice to litigants, although the discretion to recall or vary orders or judgments will rarely be exercised and only with caution. It is most likely to be exercised where the order is procedural rather than substantive. It is least likely to be exercised where the judgment finally disposes of proceedings: Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 407. See also Seaman: Civil Procedure at par 43.4.10.
Before returning to the circumstances of the present case it will be useful to refer also to Cheshire & Fifoot: Law of Contract (9th Aust ed) at par 13.1 to par 13.13. The authors of the text define the elements of actionable duress as follows: the use of illegitimate economic or psychological pressure in order to compel a party to assent to a transaction; the pressure causes the party to assent or was a cause of the assenting; the party had no reasonable alternative but to assent.
It is said that a threat to carry out a lawful act may amount to actionable duress. The ultimate question must be whether it is 'unconscionable for the party who issued the threat to take the benefit of the contract' (par 13.5). If the elements of duress are established the complainant may seek to have the transaction set aside. The learned authors note that in the contemporary commercial world the principle of unconscionability often effects an apparent merger between duress and undue influence with the result that if one party to a transaction exerts an influence which prevents the other party from exercising an independent judgment in the matter in question the complainant can set aside the contract.
These principles and earlier discussion could be taken to suggest, as I have previously indicated (but without finally deciding) that the reasoning of Magistrate Musk and Commissioner Herron was consistent with the principles reflected in the decided cases.
A settlement deed apparently effecting a compromise of the dispute between the parties had been entered into and this had led to the submission of completed forms to the court justifying the entry of a consent judgment by the registrar. The step taken by the registrar was a judicial act and one that could be regarded as giving rise to a perfected order or judgment with the result that the initial proceedings had been brought to a state of finality. Accordingly, it was consistent with the reasoning in Bailey v Marinoff and similar cases for Magistrate Musk and Commissioner Herron to determine that they had no power to vary or set aside a judgment that had been regularly obtained.
However, it emerges from my review of the decided cases, that it was open to the applicant to challenge the judgment obtained in the original proceedings (FR 417/07) by taking an appeal against the decision of the registrar to enter judgment, which was a judicial decision.
I digress briefly to say that the registrar's decision to enter judgment, albeit by consent, clearly was a judicial decision because it required a determination by the registrar on behalf of the court that she had power to enter judgment for one of the parties. This is illustrated by the reality that it would not be open to the parties to obtain purportedly by consent that which they could not obtain by a judicial ruling in response to a contested application.
The applicant proceeded with an appeal when the matter came before Magistrate Michelides pursuant to s 29 of the Magistrates Act as an appeal from the decision of a registrar. By s 29(1) a person dissatisfied by a decision in the exercise of 'any' of the court's jurisdiction or powers delegated to the registrar may appeal to a magistrate. The appeal must be commenced within 21 days but the magistrate has power to extend even if the time limit has elapsed. The appeal is to be by way of a new hearing of the issue that was before the registrar.
As I have indicated in earlier discussion, it was undoubtedly open to his Honour to conclude that such an appeal was out of time, and that time should not be extended. It was open to him also to conclude that in the case of a perfected judgment, which had apparently been regularly obtained, there was no proper basis to set aside the judgment, unless it was tainted by duress.
His Honour concluded, for reasons similar to those given by Commissioner Herron in the earlier appeal, that the allegations of duress had not been made out. It seems that his Honour, like the other judicial officer, gave weight to the fact that, on the face of it, the applicant and his son had entered into the settlement arrangements freely and at a time when the son was subject to medical care.
However, it will be apparent from my review of the relevant statutory provisions and the decided cases that a number of important points emerge. First, it is clearly open to a court to set aside a consent judgment in order to rectify an injustice by way of an appeal in circumstances where an agreement underlying the consent judgment can be set aside for fraud or duress or pursuant to equitable principles concerning unconscionable conduct.
Second, the question of whether time should be extended to permit the prosecution of an appeal may be affected by the strength of the complainant's case in respect of the injustice complained of. Third, the rules concerning duress and undue influence allow for relief to be provided where there has been a form of economic duress, and notwithstanding that the conduct complained of is lawful. The question is whether the will of the complainant was overborne by unconscionable conduct, and the conduct complained of was a cause of the complainant entering the disputed agreement.
This brings me back to the circumstances of the present case. In dealing with the applicant's allegations Commissioner Herron and Magistrate Michelides placed the emphasis upon the outward indications that there was an agreement to settle apparently entered into freely. However, I have been unable to discern in their reasons a fully considered response to a central feature of the applicant's complaint, as reflected in the affidavits before me, that he and his son terminated their contractual relationship with the respondent in the manner allowed for by the costs agreement at an early stage; that is, on or about 22 February 2005.
In that regard, the applicant points to the respondent's email letter dated 22 February 2005 directed to the applicant and his son which commences 'I acknowledge termination of my retainer in the above matter and Paul's request to have his file back.' At that time, it is said, the amount ostensibly outstanding by way of legal costs was the sum of $3,500 as suggested by the respondent's invoice 5028 dated 3 March 2005.
There is therefore evidentiary materials before me to suggest that the contractual relationship between the parties was brought to an end as at 22 February 2005, being three months after the costs agreement was signed in early November 2004. It is not clear to me on these materials how it came about that thereafter the respondent was able to keep rendering further bills progressively which amounted in the end to a total figure close to $25,000. There is also the question of whether the costs agreement was subject to a collateral contract of the kind contended for by the applicant (said to have been effected by the respondent's letter to the applicant dated 3 November 2004) whereby time costs bills were to be approved by the applicant.
I feel obliged to emphasize again that at this stage I have heard from one side only and it should not be thought that I have arrived at any conclusion as to whether the respondent's final claim can be justified or not. However, the fact is that I have before me also the transcripts of various hearings and at no stage does it seem that any information or answer was provided to any of the courts as to how it came about that a claim for legal costs could be increased so dramatically in respect of comparatively uncomplicated civil proceedings, and in circumstances where the clients had purported to terminate the retainer. The nature of the services performed by the respondent and the reason why the termination of the retainer was apparently disregarded does not appear to have been explained in the earlier proceedings.

To my mind, this state of affairs lends some weight to the applicant's basic assertion that in addition to their general state of psychological frailty both he and his son were subjected to a form of economic duress in that there seemed to be no way they could stop the legal costs running on and increasing other than to enter into a settlement of the kind reflected in the settlement deed. According to the applicant, this economic pressure led to a compromise obtained by unconscionable conduct on the respondent's part whereby they agreed to pay $11,500, which then became the amount of the consent judgment.
I digress briefly to say again that the issue I have just described was not clearly presented in the materials before me, or in the course of argument. It was simply one of a number of issues underlying the applicant's sense of grievance, and with many of his contentions being directed to the psychological state of the applicant and the presence of a caveat affecting the son's land. I can readily understand how it came about that the judicial officers overlooked the significance of this point in the course of their reasoning.
However, when the matter to which I have given emphasis is considered in conjunction with the other matters relied upon by the applicant, it strikes me as a matter of importance and one that calls out for explanation. It is referred to in ground (d)(vi) of the notice of originating motion as a reason why Magistrate Michelides should not have dismissed the appeal brought pursuant to s 29 of the Magistrates Act. Further, and in any event, as I indicated in earlier discussion, s 36 of the Act confers a broad power upon the Supreme Court because it permits the court to make any review order 'that is just' whether it is applied for or not.
I am therefore of the view that on the evidentiary materials presently before me the applicant has made out an arguable case for relief by way of a review order upon the basis that Magistrate Michelides and the other judicial officers failed to give sufficient weight to matters of the kind I have just mentioned in dealing with the issue of duress.
I am of the view also that, in this complicated area of the law concerning challenges to or the setting aside of perfected judgments, the applicant did not act unreasonably in seeking to commence fresh proceedings (FR 944/07) with the result that time went by before he reverted to what is arguably the correct course, namely, an appeal against the registrar's decision in the original proceedings (FR 417/07). There is therefore an explanation for delay before Magistrate Michelides sufficient to justify an extension of time.
It emerges, then, that it is arguable, having regard to these matters, that Magistrate Michelides ought to have extended time for an appeal against the registrar's decision. It is arguable that he ought then to have set aside the consent judgment upon the basis that the underlying agreement, being the agreement reflected in the settlement deed, was voidable for duress. It is arguable, having regard to the passage from Seaman, that in a case of allegedly unconscionable conduct, it is open to challenge the validity of a prior judgment in fresh proceedings (such as action FR 944/07), and it may amount to a jurisdictional error by a judicial officer to disregard that possibility.
I am conscious, as I have indicated, that the availability of an appeal process, and the circumstances that in this case appeals have been taken and have failed, weighs against the grant of discretionary relief to the applicant. However, the fact remains that an important feature of the applicant's challenge to the validity of the settlement deed and the related consent judgment does not appear to have been fully addressed, and in circumstances that might arguably amount to jurisdictional error or an infringement of the rules of natural justice.
I noted in earlier discussion that in determining whether an order to review should be granted, the Supreme Court is vested with a broad power to grant relief if that is thought to be just. As I have indicated, I consider that the applicant has an arguable case for obtaining relief in that regard, and that a preliminary order should be made by me, notwithstanding the earlier appeals. Orders must be made also providing for the application and supporting affidavits to be served upon the respondent so that the respondent will be afforded an opportunity to respond to the issues reflected in these reasons for decision.
It is probably appropriate that the respondent be joined as a party to the application in due course. However, any determination in that regard should be deferred until he has had an opportunity to be heard.
The application is formally directed to the three judicial officers. I have been persuaded, in the context of an ex parte application, and having heard from one side only, that there is an arguable case that the judicial officers in question erred in failing to find that the applicant and his son were subjected to duress in respect of the disputed settlement deed.
However, as the supporting affidavits are very lengthy, and the two magistrates affected by the orders to be made are generally familiar with the matter, I consider that it will be sufficient for directions to be given that they are to be served with a copy of the notice of motion only and a copy of these reasons for judgment. It may well be that as they have no direct or tangible interest in the outcome they will be content simply to abide the outcome of any ruling made eventually by the Supreme Court in these proceedings. Directions will be given for the affidavits to be served upon them if they so require. The proposed respondent (that is, the practitioner Mr Thies) is to be served with the notice of motion, all supporting affidavits and these reasons.
Finally, let me say this. Even if it be contended in due course that Magistrate Musk and Commissioner Herron did not err in that, for the reasons I have given, there is a basis for arguing that they had no power to set aside a perfected order, nonetheless, two factors weigh against such a stance. First, as I have indicated, the decided cases allow for the possibility of fresh proceedings being brought to challenge an existing judgment in cases of fraud or unconscionability. Second, if relief be granted to the applicant in the end by setting aside the consent judgment, it might also be necessary in order to afford full and 'just' relief to deal with the orders made in action FR 944/07. Hence, upon the precept that all necessary parties should be before the court, I consider that a review order should be directed to Magistrate Musk. I doubt that it is open to me to make a review order in respect of the decision of Commissioner Herron because s 36 speaks of a review order being directed to the act of a court officer. That term is defined to mean a magistrate, JP when constituting the court, or a registrar when performing functions delegated to a registrar under s 28 of the Act.
I will hear from the applicant as to the exact form of the orders to be made, but in the absence of further discussion they will be in these terms:
1.The application for review is granted and a review order is made in respect of each of the following decisions; that is, the decision of her Honour Magistrate Musk in the matter of FR 944/07 and that of his Honour Magistrate Michelides in the matter of FR 417/07 of the Magistrates Court at Fremantle, with the review order to be heard by a judge of the Supreme Court in chambers on a date to be fixed.
2.For the time being no order is made as to the decision of Commissioner Herron in the matter of APP 6/08 in the District Court.
3.A copy of the notice of motion for review order, a copy of the reasons for judgment and these review orders are to be served upon the judicial officers referred to in Order 1 within 56 days from the date hereof. The affidavits of the applicant specified in the reasons for judgment are to be served on them if they so require.
4.The proposed respondent, Timothy Robin Thies, is to be served either personally or by registered mail with the notice of motion for review and all subject affidavits together with a copy of these orders and the reasons for judgment granting the review order within 56 days either personally or by registered mail.
5.This review order operates as a stay of the proceedings specified in Order 1 until further order by this Court.
6.These proceedings in the Supreme Court and the review orders specified in Order 1 be adjourned for further consideration by a judge in chambers on a date to be fixed, but not earlier than 28 days after service is effected in accordance with these orders.
7.The applicant and the proposed respondent mentioned in Order 3 above or either of them shall have liberty to apply to have the proposed respondent joined as a party to the proceedings.
8.There shall be general liberty to apply on 7 days notice to any party affected or likely to be affected by the application.