Re the Bailiff;

[2012] WASC 262

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE THE BAILIFF; EX PARTE FRANCIS [2012] WASC 262

CORAM:   McKECHNIE J

HEARD:   4 JULY 2012

DELIVERED          :   4 JULY 2012

FILE NO/S:   CIV 2129 of 2012

EX PARTE

BEVAN DAVID FRANCIS
Plaintiff

Catchwords:

Courts - Judges - Review of a costs order - Wrong legal theories - No grounds for review

Legislation:

Magistrates Court Act 2004 (WA) s 36

Result:

Application refused

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Solicitors:

Plaintiff:     In person

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

Nil

McKECHNIE J: 

An urgent application for review is made

1. This is an application to review decisions of two magistrates under the Magistrates Court Act 2004 (WA), s 36. It has been listed urgently because there is a bailiff's auction which has been advertised to take place at 10.30 am on Tuesday, 10 July 2012 in relation to the applicant's land. I have read the application and the accompanying affidavit filed by Mr Francis.

2. The review order seeks the following.  The two court officers, that is, Magistrate Young and Magistrate Benn, are to show cause as to why their unlawful costs orders, detrimental to the interests of the applicant made under the minor cases provisions of the Magistrates Court (Civil Proceedings) Act 2004 (WA) in MID Minor 5544/2010, should not be set aside.

3. And further that the unlawful costs orders are made in contemptuous disregard to the legislative intent of Parliament, as explained by cl 25(5) of the Magistrates Court (Civil Proceedings) Bill 2003 and the minute of the parliamentary subcommittee meetings dated 16 August 2004 and 27 August 2004 (the reason for the unlawful costs orders). 

4. The parliamentary debates of the legislation subcommittee have been included in the affidavit and I have read them.

Why the application is made

1. The applicants were sued by their local authority, the Shire of Chittering, for outstanding rates.  They admitted they were the registered proprietors of land at 182 Philmore Street, Muchea, within the Shire of Chittering.  They did not dispute that they received rate notices.  However, they objected to paying rates for various specious reasons, including an argument that the constitution precludes the shire from levying rates.  That argument was put to bed some years ago by the Court of Appeal.

2. Magistrate Young, in written reasons, granted summary judgment in favour of the shire.  He specifically dealt with the question of costs in [12] of his judgment as follows:

   Pursuant to section 18(2) of the Magistrates Court (Civil Proceedings) Act 2004, I consider the defendants have no reasonable prospect of successfully defending the claim. In those circumstances it is appropriate that an order for costs be made in favour of the Claimant. Notwithstanding that the amount of the claim is less than $10,000, which would ordinarily mean that the claimant would be limited to costs as provided for in section 25(5) and section 31 of the Magistrates Court (Civil Proceedings) Act 2004, section 25(6) allows for costs to the successful summary judgment application to be awarded. Further, section 31(3)(b) allows the court to order costs to be paid pursuant to section 25(1), where the defence was wholly without merit. I am satisfied that it was so lacking in merit and therefore order that the defendant pay the claimant's costs of the proceedings pursuant to section 25(1) and the costs of a summary judgment application to section 25(6).

3. An effort to stay the judgment before Magistrate Benn was unsuccessful. 

Conclusion

1. The Magistrates Court Act allows a review in certain circumstances, as detailed in s 36. The insuperable difficulty in the way of the applicants is that their arguments are baseless and the theories of law they advance are wrong. Both magistrates applied the law, and in particular the Magistrates Court (Civil Proceedings) Act, correctly.  Magistrate Young made a judicial determination by applying the provisions of that Act to the facts that he found had been established.  There is nothing to ground a review order.  This application is therefore dismissed.