RE MR P G COCKRAM; EX PARTE TEY [2012] WASC 248
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 248 | |
| Case No: | CIV:1503/2012 | 4 JULY 2012 | |
| Coram: | McKECHNIE J | 4/07/12 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KOK YONG TEY |
Catchwords: | Courts and judges Application for review of magistrate after three years Delay unexplained Matter already subject to unsuccessful appeal Inherent jurisdiction Abuse of process |
Legislation: | Nil |
Case References: | Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
KOK YONG TEY
Plaintiff
Catchwords:
Courts and judges - Application for review of magistrate after three years - Delay unexplained - Matter already subject to unsuccessful appeal - Inherent jurisdiction - Abuse of process
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : In person
Solicitors:
Plaintiff : In person
Case(s) referred to in judgment(s):
Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113
(Page 3)
1 McKECHNIE J: The plaintiff applies by notice of originating motion seeking a review order of the decision of a magistrate on 2 July 2009. In other words nearly three years have passed since that decision. The fate of the plaintiff's appeal against the magistrate's decision is set out in Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113 [2] - [7].
2 While framed as an application for review, the grounds are in reality an attempt to circumvent the decision already made by the Court of Appeal.
3 The notice of motion was listed for 6 September 2012. However the plaintiff has written to the court seeking an order to have all files transferred from the Perth Magistrates Court and the District Court to peruse them in detail, make a note of them and rely on evidence on those files. There is no point in contemplating such an order if the application for review is without merit.
Order refused on discretionary grounds.
4 I accept the reasoning of Corboy J in Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 [115] - [117].
5 In my opinion, the application for review should be refused on strong discretionary grounds:
1. The length of time between the decision and any application for review which has not been explained.
2. The history of the proceedings including the decision of the District Court and subsequently Court of Appeal that the appeal be dismissed on the basis that there were no reasonable prospects of success and the disproportion as to costs compared with the subject matter.
3. The likely cost to any respondent to this application if a review order is made.
6 As is apparent from Tey v Optima Financial Group Pty Ltd the plaintiff has incurred an obligation in respect of costs of over $35,000. It would be unfair if the respondent in those proceedings, who would be a person interested in upholding the review order, was made to incur even more costs before the plaintiff has discharged her debt in respect of costs so far incurred.
(Page 4)
Order refused under inherent power
7 In addition to refusing to make an order on discretionary grounds I would also decline to make a review order under the inherent power of the court to prevent its processes being used vexatiously and oppressively.
8 It is an improper purpose to bring collateral proceedings in an attempt to circumvent a decision, especially one made after an appeal.
9 There must be a finality to litigation. These proceedings are an abuse of the processes of the court.
10 For the reasons I have just enumerated, each of those descriptions also applies to these proceedings. I would therefore dismiss the notice of originating motion and make no order for bringing documents into this court.
- AGLC
- Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248
- Case
- [2012] WASC 248
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the court should exercise its inherent jurisdiction to review the magistrate's decision under these circumstances. The court had to balance the principle of finality in legal proceedings against the potential for injustice caused by undue delay. Additionally, the court considered whether the application constituted an abuse of process, given the prior unsuccessful appeal and the unexplained delay.
The court concluded that the delay was significant and unexplained, which weighed heavily against entertaining the application. The court also found that allowing the application would risk setting a precedent that could lead to the abuse of process. The court held that the inherent jurisdiction should not be exercised in these circumstances due to the risk of undermining the finality of legal decisions and the potential for abuse of the court process.
Consequently, the application was dismissed. The court emphasised that the inherent jurisdiction is to be exercised sparingly and only in cases where it is necessary to prevent an abuse of the court's process. The court found that the application did not meet the threshold for exercising this jurisdiction, and the delay and prior appeal were significant factors in this determination.
Orders
Orders of the court
Application dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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