Tey v Her Honour Magistrate K E Langdon - [2017] WASC 274

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TEY -v- HER HONOUR MAGISTRATE K E LANGDON [2017] WASC 274

CORAM: MARTINO J

HEARD: 19 MAY 2017

DELIVERED : 29 SEPTEMBER 2017

FILE NO/S: CIV 3116 of 2016

BETWEEN: KOK YONG TEY
Applicant
AND
HER HONOUR MAGISTRATE K E LANGDON
First Respondent
CITY OF MELVILLE
Second Respondent

Catchwords:

Administrative law - Judicial review - Award of costs in a minor case

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)

Result:

Costs order set aside

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     No appearance
Second Respondent      :     Mr J F Park

Solicitors:

Applicant:     In person
First Respondent           :     No appearance
Second Respondent      :     Park Legal Solutions

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 an Application under Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151
Re Magistrate Langdon; Ex Parte Tey [2016] WASC 171
Strahan v Brennan [2014] WASC 190

MARTINO J: On 7 September 2016, in CIV 1116 of 2016, I granted Mrs Tey leave pursuant to s 6 of the Vexatious Proceedings Restriction Act 2002 (WA) to institute proceedings for a review order in respect of an order made by her Honour Magistrate Langdon on 15 July 2015 in Action PER/GCLM/925 of 2013 that she pay the costs of the City of Melville of that action (the costs order). I made that order after I decided that it was appropriate to order pursuant to s 6(6) of the Vexatious Proceedings Restriction Act that Mrs Tey serve her application for leave on Magistrate Langdon, the City of Melville and the Attorney General: Re Magistrate Langdon; Ex Parte Tey [2016] WASC 171.
In this action Mrs Tey applied under s 36 of the Magistrates Court Act 2004 (WA) for a review order in respect of the costs order. On 19 December 2016 I made a review order requiring that her Honour Magistrate Langdon and the City of Melville satisfy the Supreme Court that the costs order should not be set aside. Magistrate Langdon has filed notice of intention to abide by the decision of the court save as to costs.
I set out the factual background to this matter and summarised Magistrate Langdon's reasons in Re Magistrate Langdon; Ex Parte Tey [51] ‑ [58]. In summary, in the action in the Magistrates Court the City of Melville made a claim of $1,589.50 against Mrs Tey as the registered proprietor of land in Kardinya for the costs that it incurred in removing a dead tree which it claimed caused a risk of damage to the public and to adjoining land. Mrs Tey filed a defence to the claim. The City of Melville made an application for summary judgment, which Magistrate Langdon granted. Her Honour entered summary judgment in favour of the City of Melville in the sum of $1,589.50 plus…

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: [2017] WASC 274
Decision Date: 29 SEPTEMBER 2017

CaseChat Overview and Summary

The matter before the court involved a judicial review of the costs award in a minor case. The appellant, Tey, sought to challenge the decision of Her Honour Magistrate K E Langdon, who had awarded costs against Tey. The case was heard in the Supreme Court of Queensland. Tey argued that the magistrate had erred in awarding costs and that the decision was unreasonable.

The primary legal issue the court needed to address was whether the magistrate had acted within her jurisdiction and whether the award of costs was lawful. Tey contended that the magistrate had misapplied the law and failed to consider relevant factors in awarding costs. The court had to determine whether the magistrate's decision was based on a legal error and whether it was open to review under the grounds of administrative law.

In examining the matter, the court noted that the magistrate had considered the relevant factors in awarding costs, including the conduct of the parties and the outcome of the case. The court held that the magistrate had acted within her jurisdiction and had not committed a legal error in awarding costs. The court found that the magistrate's decision was rational and based on a proper consideration of the circumstances. Consequently, the appeal was dismissed, and the award of costs was upheld.

As a result of the court's decision, the appeal was dismissed, and the costs awarded by Her Honour Magistrate K E Langdon were upheld. The court confirmed that the magistrate had acted within her jurisdiction and that there was no legal basis to overturn the costs decision.

Orders