RE TEY; EX PARTE TEY [2015] WASCA 57

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 57
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:137/2014	Heard:	19 DECEMBER 2014
Coram:	NEWNES JA	Delivered:	19/03/15
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for stay dismissed
Category:	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,…

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: [2015] WASCA 57
Decision Date: 19 MARCH 2015

CaseChat Overview and Summary

The case of Re Tey involved an application by the respondent, seeking a stay of an order that had been made under section 36 of the Magistrates Court Act 2004 (WA). The order in question mandated that the respondent's application be remitted to the District Court to be heard as an appeal. The application for a stay was brought before the court, which was tasked with determining whether the stay should be granted.

The central legal issue before the court was whether the application for a stay should be considered on its own merits, separate from the broader context of the remitted application. This question was crucial, as the outcome would determine whether the stay was to be granted or dismissed.

The court examined the nature of the application for a stay and its relationship with the remitted application. It concluded that the application for a stay was not suitable to be considered in isolation from the remitted application. The court found that the application for a stay did not present unique facts that warranted a separate consideration, thereby dismissing the application for a stay. As a result, the respondent's application to stay the order remitting the matter to the District Court was unsuccessful.

Orders

Orders of the court

Application for stay 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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