Re Perth Magistrates Court;
[2016] WASC 155
•24 MAY 2016
RE PERTH MAGISTRATES COURT; EX PARTE SCHAEFER [2016] WASC 155
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 155 | |
| Case No: | CIV:1660/2016 | ON THE PAPERS | |
| Coram: | LE MIERE J | 24/05/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Leave to apply for judicial review refused | ||
| B | |||
| PDF Version |
| Parties: | ERIC JOSEPH SCHAEFER |
Catchwords: | Leave to apply for judicial review Where application has no prospect of success Leave refused Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 56 r 2 |
Case References: | Schaefer v Gregory [2015] WASCA 222 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE PERTH MAGISTRATES COURT; EX PARTE SCHAEFER [2016] WASC 155 CORAM : LE MIERE J HEARD : ON THE PAPERS DELIVERED : 24 MAY 2016 FILE NO/S : CIV 1660 of 2016 MATTER : An application under O 67 r 5 for leave to issue an application for judicial review against Magistrate Randazzo of the Magistrates Court of Western Australia at Perth EX PARTE
ERIC JOSEPH SCHAEFER
Applicant
Catchwords:
Leave to apply for judicial review - Where application has no prospect of success - Leave refused - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 56 r 2
Result:
Leave to apply for judicial review refused
Category: B
Representation:
Counsel:
Applicant : No appearance
Solicitors:
Applicant : No appearance
Case(s) referred to in judgment(s):
Schaefer v Gregory [2015] WASCA 222
1 LE MIERE J: The applicant has applied by a notice of originating motion for an order that leave be granted to issue an application for judicial review in terms of the minute filed with the notice of motion. The minute is in the form of a draft form 67A application for judicial review: Rules of the Supreme Court 1971 (WA) O 56 r 2. The application describes the decision to be reviewed as a decision of Magistrate Randazzo on 16 February 2016 whereby the magistrate refused to discuss the possibility of a State-wide precedent from the Court of Appeal upholding Magistrate Randazzo's decision on 4 May 2015.
2 The applicant is, or was, a tenant of Foundation Housing Ltd. On 5 March 2015, he commenced proceedings in the Magistrates Court against Ms Kathleen Gregory in her capacity as the chief executive officer of Foundation Housing. Ms Gregory filed a notice of intention to defend the claim, an application to substitute Foundation Housing as the defendant in the proceedings and an affidavit in which she explained that she was the chief executive officer of Foundation Housing, a corporate entity, and the applicant's claim was against Foundation Housing not against her personally. On 4 May 2015, Magistrate Randazzo ordered that Foundation Housing be substituted as the defendant in the proceedings.
3 The applicant appealed to the District Court, contending that the magistrate was in error in so ordering on the ground that 'personal accountability removed from claim'. On the hearing of the appeal, the applicant confirmed that his grievance was with Foundation Housing, but that Foundation Housing was just a paper company and it was necessary to name Ms Gregory as the defendant as the senior representative of the company to receive the documents and direct them. The judge found that the magistrate was correct in finding that Foundation Housing was the appropriate defendant and dismissed the appeal.
4 The appellant then appealed to the Court of Appeal. In substance, the applicant's contention was identical to the one advanced before the District Court judge. The Court of Appeal found that none of the grounds of appeal had a reasonable prospect of succeeding and dismissed the appeal: Schaefer v Gregory [2015] WASCA 222. The Court of Appeal said that the appeal was misconceived. It is quite clear that the applicant has no claim, and does not seek to make a claim, against Ms Gregory personally. The appeal was based on the misconception that where a claim is made against a corporation, it is necessary to name a representative of the corporation as the defendant. The applicant says that the Court of Appeal decision established a 'State-wide precedent' which would be binding on all State courts disallowing all Foundation Housing employees from appearing and representing Foundation Housing in any court.
5 The applicant applied for special leave to appeal to the High Court. On 7 April 2016, his application for leave to appeal was dismissed. The applicant says that this has now established a nationwide precedent.
6 It appears that at directions hearings in the Magistrates Court subsequent to 4 May 2015, the magistrate has allowed a person or persons to represent Foundation Housing. The applicant seeks a writ of prohibition.
7 The primary purpose of a writ of prohibition is to prevent an inferior court or tribunal from exceeding its jurisdiction. The writ is also available to prevent the execution of some decision already taken which is beyond power.
8 The magistrate continuing to hear the proceedings between the applicant and Foundation Housing and allowing a person to represent Foundation Housing is not beyond the jurisdiction or power of the Magistrates Court. The decision of the magistrate on 4 May 2015, which was subsequently upheld by the Court of Appeal on 6 November 2015, is that the proper defendant in the proceedings is Foundation Housing, not Ms Gregory. Whether Ms Gregory or someone else may represent Foundation Housing at any hearing before the Magistrates Court is a different question. The decision of the Court of Appeal, which the applicant describes as a State-wide precedent, says nothing about whether Ms Gregory or any other person may represent Foundation Housing on the hearing of the proceedings before the Magistrates Court.
9 The applicant's putative application for judicial review has no prospect of success. It is misconceived. The applicant's application for leave to issue the proposed application for judicial review is dismissed.
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