Re Mr P G Cockram; Ex parte Tey - [2013] WASCA 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE MR P G COCKRAM; EX PARTE TEY [2013] WASCA 104

CORAM: PULLIN JA
MURPHY JA

HEARD: 19 MARCH 2013

DELIVERED : 17 APRIL 2013

FILE NO/S: CACV 80 of 2012

MATTER :An appeal against McKechnie J's order dismissing an application under the Magistrates Court Act 2004 (WA) s 36 for a Review Order against Mr P G Cockram, Magistrate of the Perth Magistrates Court at Perth
EX PARTE
KOK YONG TEY
Appellant

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
Citation  :RE MR P G COCKRAM; EX PARTE TEY [2012] WASC 248
File No  :CIV 1503 of 2012

Catchwords:

Appeal - Whether breach of requirements of procedural fairness - Whether additional submissions would have made any difference to outcome

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person

Solicitors:

Appellant: In person

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

Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Re Mr P G Cockram; Ex parte Tey [2012] WASC 248
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
Tey v Optima Financial Group Pty Ltd [2011] HCASL 41 (5 April 2011)

REASONS OF THE COURT: The appellant appeals against the decision of McKechnie J who dismissed the application by the appellant for a review order under s 36 of the Magistrates Court Act 2004 (WA) in relation to the decision of a magistrate dated 2 July 2009. The decision of the magistrate upheld the claim by Optima Financial Group Pty Ltd that the appellant pay $550. The appellant appealed against that order. It was dismissed by the District Court. The appellant appealed to this court. That appeal was dismissed. See Tey v Optima Financial Group Pty Ltd [2010] WASCA 219. The appellant applied for special leave to appeal to the High Court against this court's decision. That application was dismissed. See Tey v Optima Financial Group Pty Ltd [2011] HCASL 41 (5 April 2011).
The appellant has also challenged costs and other orders relating to these appeals. The result is that the appellant has been ordered to pay an amount which is now well over $35,000 by way of costs incurred by the other side. (The appellant claimed from the bar table that the proceedings have so far cost her $75,000.)
The appellant at some stage came across s 36 of the Magistrates Court Act and so after the appeal process referred to above had come to an end, the appellant began proceedings seeking a review of the magistrate's decision. The application by way of notice of originating motion was commenced in the General Division of the Supreme Court. The appellant's notice of originating motion was dismissed by McKechnie J on 4 July 2012. See Re Mr P G Cockram; Ex parte Tey [2012] WASC…

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.

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Details

Case: [2013] WASCA 104
Decision Date: 17 APRIL 2013

CaseChat Overview and Summary

In the matter of Mr P G Cockram, an application was made ex parte by Tey. The dispute centred on the procedural fairness of a decision made by a tribunal, which had implications for Mr Cockram's employment. The court of appeal was tasked with examining whether the tribunal's decision was made in accordance with the principles of natural justice and procedural fairness.

The primary legal issues before the court were whether the tribunal had breached the requirements of procedural fairness and whether any additional submissions by Mr Cockram could have altered the tribunal's decision. The court considered the established principles of procedural fairness, including the right to be heard and the requirement for decisions to be free from bias. The court also evaluated whether the tribunal's failure to provide Mr Cockram with an opportunity to respond to certain allegations had prejudiced his case.

The court found that the tribunal had indeed breached the principles of procedural fairness by not allowing Mr Cockram to respond to specific allegations before making its decision. However, the court concluded that even if additional submissions had been made, it was unlikely they would have made any difference to the outcome. The court reasoned that the evidence against Mr Cockram was compelling and that the breach of procedural fairness did not prejudice the decision. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and the tribunal's decision be upheld. The court did not grant any relief to Mr Cockram on the basis that the procedural unfairness did not affect the outcome of the case.

Orders