RE MR R H BROMFIELD; EX PARTE TEY [2012] WASC 303

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 303
Case No:	CIV:1649/2012	Heard:	4 & 26 JULY 2012
Coram:	McKECHNIE J	Delivered:	24/08/2012
No of Pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	KOK YONG TEY
Catchwords:	Courts and judges Review order Whether grounds Turns on own facts
Legislation:	Magistrates Court Act 2004 (WA), s 36
Case References:	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

Last Updated: 27/08/2012

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE MR R H BROMFIELD; EX PARTE TEY [2012] WASC 303 CORAM : McKECHNIE J HEARD : 4 & 26 JULY 2012 DELIVERED : 24 AUGUST 2012 FILE NO/S : CIV 1649 of 2012 MATTER : Application pursuant to s 36 of the Magistrates Court Act 2004 for a review order against the decision of Mr R H Bromfield, Magistrate of the Magistrates Court at Armadale EX PARTE

KOK YONG TEY

Applicant

Catchwords:

Courts and judges - Review order - Whether grounds - Turns on own facts

Legislation:

Magistrates Court Act 2004 (WA), s 36

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : In person

Solicitors:

Applicant : In person

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

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

(Page 3)

1 McKECHNIE J: The applicant seeks a review order under the Magistrates Court Act 2004 (WA) s 36 quashing an order of Bromfield SM on 1 July 2011 granting judgment in favour of the City of Gosnells with costs. The grounds are as follows:

1.1 The Plaintiff believed that she was aggrieved by the failure of the learned Magistrate to make appropriate orders. Such orders should have been made that the City of Gosnells to reissue to the Plaintiff

a new and valid Rate Notice

for the financial year ending 2009/2010 referring to the Plaintiff's rights for objections to the appropriate authorities

under Section 6.58

of the Local Government Act 1995 without any penalties to the Plaintiff.

1.2 The Plaintiff believed that the learned Magistrate failed to ascertain the appropriate differential rates applied to her vacant land.

2.1 The Plaintiff believed that she was denied procedural fairness. Throughout the Magistrate Court trial, the respondent's lawyer was adamant not to provide sworn original copies of Rates Notices issued by City of Gosnells to the Plaintiff referred to in the Summary Judgment Application. Only when during the District court appeal hearing on 15 February 2012 the Respondent's lawyers represented by Mr Steven Blyth of Lewis Blyth &…

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 Mr R H Bromfield;

Details

AGLC: Re Mr R H Bromfield; [2012] WASC 303
Case: [2012] WASC 303
Decision Date

CaseChat Overview and Summary

The applicant, Kok Yong Tey, sought a review order under section 36 of the Magistrates Court Act 2004 (WA) to quash a judgment given by Bromfield SM on 1 July 2011 in favour of the City of Gosnells. Tey contended that the magistrate had failed to make appropriate orders, had failed to ascertain the correct differential rates applied to her vacant land, and had denied her procedural fairness. The Supreme Court was required to determine whether the applicant had established an arguable case with reasonable prospects of success to justify a review order.

McKechnie J dismissed the application. The court noted that the applicant, while experienced in litigating, was not a practised litigant and misunderstood the nature of a review order and the powers and limitations of the Supreme Court in respect of such orders. The court held that a review order does not supplant an appeal and is appropriate only where a magistrate ought to do an act and has not, or may be acting beyond jurisdiction. The court found that there was no evidence that the magistrate had failed to exercise jurisdiction or had committed an error sufficient to warrant a review order. The applicant's assertions of procedural unfairness were also not supported by evidence.

The application was dismissed, and no review order was granted.

Orders