Re Tey
[2015] WASCA 57
•19 MARCH 2015
RE TEY; EX PARTE TEY [2015] WASCA 57
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 57 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:137/2014 | 19 DECEMBER 2014 | |
| Coram: | NEWNES JA | 19/03/15 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for stay dismissed | ||
| B | |||
| PDF Version |
| Parties: | KOK YONG TEY |
Catchwords: | Practice and procedure Application for stay of order remitting application under s 36 of the Magistrates Court Act 2004 (WA) to District Court to be heard as an appeal Turns on own facts |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004, s 40 Magistrates Court Act 2004 (WA), s 36 |
Case References: | Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASCA 188 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE TEY; EX PARTE TEY [2015] WASCA 57 CORAM : NEWNES JA HEARD : 19 DECEMBER 2014 DELIVERED : 19 MARCH 2015 FILE NO/S : CACV 137 of 2014 EX PARTE
KOK YONG TEY
Appellant
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
File No : CIV 2296 of 2014
Catchwords:
Practice and procedure - Application for stay of order remitting application under s 36 of the Magistrates Court Act 2004 (WA) to District Court to be heard as an appeal - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004, s 40
Magistrates Court Act 2004 (WA), s 36
Result:
Application for stay dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Solicitors:
Appellant : In person
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASCA 188
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
1 NEWNES JA: On 19 December 2014, I dismissed an application by the appellant for a stay of an order of Beech J that an application made by the appellant under s 36 of the Magistrates Court Act 2004 (WA) be treated as if it were an appeal and remitted to the District Court for determination. I said I would provide reasons for my decision. These are the reasons.
2 Stated shortly, the background to the application is as follows. In 2006, the appellant commenced proceedings in the Magistrates Court against a Mr Lewis. On 19 February 2014, the trial of the action was set down to commence on 18 August 2014. Orders as to expert evidence had been made and on 19 February 2014 a further order was made that the appellant have leave to file and serve further expert evidence at any time prior to 30 days before the hearing. On 21 July 2014, the appellant applied for an order that either party have leave to file and serve further expert evidence on or before 18 August 2014. On 13 August 2014, Magistrate Langdon refused the application. The trial proceeded on 18 August 2014 before Magistrate Malley, the appellant's claim ultimately being dismissed.
3 Being dissatisfied with the outcome, the appellant did not take the usual course of appealing to the District Court against the dismissal of her claim, pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). Instead, the appellant brought an application in the General Division of this court under s 36 of the Magistrates Court Act. After amendments made at the hearing before the primary judge, the effect of the application was to seek to have the orders of Magistrate Malley and Magistrate Langdon set aside. In relation to the decision of Magistrate Langdon, the appellant alleged that she had been denied procedural fairness.
4 The primary judge concluded that the application under s 36 was an inappropriate procedure as the appellant's substantive complaint was against the dismissal of the claim and the appellant should have proceeded by way of an appeal to the District Court under the Magistrates Court (Civil Proceedings) Act. In relation to the decision of Magistrate Langdon, his Honour pointed out that an appeal against the judgment dismissing the claim could correct any interlocutory order that caused substantial injustice or otherwise affected the final judgment. He ordered that the s 36 application be treated as if it were an appeal and be remitted to the District Court for determination as an appeal.
5 The appellant applied for the operation of his Honour's order to be stayed because a directions hearing was listed for 13 January 2015 in the District Court.
6 It is unnecessary to traverse the relevant legal principles in any detail. The power to grant a stay is an implied incident of this court's substantive appellate jurisdiction: Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASCA 188; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168. The general principles to be applied on such an application are those set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. In general terms, an applicant must establish that there are special circumstances which justify the grant of a stay, and that will usually require the applicant to establish that the appeal will be rendered nugatory unless a stay is granted. Even then, a stay will generally be refused unless it can be established that the appeal has some reasonable prospect of success.
7 There are no circumstances which would justify a stay. The only consequence if a stay were not granted is that procedural directions would be made in the District Court in respect of the appeal that has been remitted to it. The making of such directions could not render the appeal to this court nugatory or cause the appellant any other substantial prejudice. Any inconvenience or wasted costs that might be involved if the appellant were ultimately to succeed in the appeal to this court would be relatively minor. In that context, it is relevant that the appeal to this court involves a short, discrete point and there is unlikely to be any substantial delay in its determination.
Conclusion
8 It was for those reasons I refused to stay the operation of the order of the primary judge.
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