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 interest and costs.
As the amount of the City of Melville's claim against Mrs Tey in the action in the Magistrate's Court was for less than the minor case jurisdictional limit of $10,000 it was a minor case within the definition of that term in s 26 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
Section 31 of the Magistrates Court (Civil Proceedings) Act provides:
31.Costs
(1)In this section -
allowable costs means -
(a)the court fees and service fees paid by a successful party; and
(b)the costs of enforcing a judgment.
(2)A successful party to a minor case is entitled to an order under section 25(1) in relation to the party's allowable costs but not in relation to the party's other costs in the case.
(3)Despite subsection (2), the Court may make an order under section 25(1) as to the payment of the party's other costs by another party if it is satisfied that -
(a)because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or
(b)the unsuccessful party's claim or defence was wholly without merit; or
(c)the proceedings in the minor case -
(i)were commenced but not concluded in a Local Court before 1 May 2005; and
(ii)were, immediately before 1 May 2005, not proceedings that were being heard and determined under the Local Courts Act 1904 Part VIA 3.
Magistrate Langdon could only order that Mrs Tey pay the City of Melville's costs (other than the allowable costs) if, pursuant to s 31(3) if she was satisfied that:
(a)because of the existence of exceptional circumstances an injustice would be done to the City of Melville if the City's other costs were not ordered to be paid; or
(b)Mrs Tey's defence was wholly without merit.
In her Honour's reasons for decision Magistrate Langdon canvassed the issues raised on the application for summary judgment, as I have summarised at [53] ‑ [58] of my decision in Re Magistrate Langdon; Ex Parte Tey. Her Honour concluded:
It's evident from the statement of defence and the submissions by Ms Tey today that she does not intend to call any expert to refute the evidence of the claimant's witnesses that the tree was a danger and needed to be removed. She has made - Ms Tey has made some allegation in her defence that the tree was poisoned, yet she does not propose to call any expert witness in relation to - or any evidence in relation to how that might be proved.
Accordingly, it is clear from the documents that have been lodged in respect to the claim and in defence of the claim that there is no real question to be tried in respect of defending the claim. There is no defence to the prima facie case of the claimant, and it is certainly my view - it is overwhelmingly my view that the defendant has not satisfied this court that her defence has a reasonable prospect of succeeding. Accordingly, I make the following orders:
(1)The claimant's form 23 application be granted.
(2)Summary judgment be entered in favour of the general procedure claim pursuant to section 18 subsection (2) of the Magistrates Court (Civil Proceedings) Act 2004.
(3)The listing conference on 22 July 2015 be vacated.
(4)The defendant pay to the claimant the sum of $1589.50 for services rendered on or about 6 September 2010, plus interest at the rate of six per cent per annum from the date of these orders until payment, daily rate 26 cents. And,
(5)The defendant pay the claimant's costs to be assessed if not agreed. Yes. Thank you. You're both excused.
TEY, MS: Sorry. The fifth order, your Honour?
HER HONOUR: The defendant pay the claimant's costs to be assessed.
LENNON, MR: Sorry. Just point of clarity on that fifth order, your Honour. Including reserved costs?
HER HONOUR: Of - were there reserved - - -
LENNON, MR: I think, through the hearings, there has been a couple of reserved costs. I just - to my mind, I can think of two, and I just don't want to - - -
HER HONOUR: All right. Yes.
LENNON, MR: - - - miss any. Thank you, your Honour.
HER HONOUR: For clarification, that's appropriate.
LENNON, MR: Thank you, your Honour.
HER HONOUR: The fifth order is the defendant pay the claimant's costs, including reserved costs to be assessed if not agreed. Yes. Thank you. You're excused.
Her Honour did not expressly refer to the limitations on the power to award costs that applied to the City of Melville's claim.
Section 36(1) and s 36(4) of the Magistrates Court Act provide:
36.Supreme Court's powers to control Court
(1)If a person is or would be aggrieved by one or more of the following -
(a)the failure of a Court officer to do any act or make any order or direction -
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
…
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
The power in the section is a judicial review power. The purpose of the section is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the court. The intention is to permit judicial review in those situations in which the prerogative writs of mandamus, prohibition or certiorari would have been available and to free the courts from the technical requirements associated with those ancient remedies. The power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), s 36(1)(b) or s 36(1)(c) has been established: Rayney v AW [2009] WASCA 203 [27] ‑ [28] (McLure JA, Buss & Newnes JJA agreeing).
One of the grounds that is listed in s 36(1)(c) is a ground that might have justified an order of certiorari. Certiorari enables the quashing of an order on the grounds of jurisdictional error: Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 175. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist: Craig v The State of South Australia (177).
If Magistrate Langdon made the costs order without being satisfied that either
(a)because of the existence of exceptional circumstances an injustice would be done to the City of Melville if the City's costs were not ordered to be paid; or
(b)Mrs Tey's defence was wholly without merit
then her Honour would have made a jurisdictional error in making that costs order because she would have disregarded a limit on her powers to award costs.
I bear in mind that magistrates are to conduct their work with expedition and a degree of informality appropriate to the disposition of the large volume of cases brought before them and that it is not appropriate to scrutinise a Magistrate's reasons for decision with a fine tooth comb or with an eye keenly attuned to the identification of error, or to infer error from infelicity of language: Strahan v Brennan [2014] WASC 190 [88] ‑ [90] (Martin CJ).
However there is no reference at all in her Honour's reasons to the limitation on the power to award costs. Counsel for the City of Melville has pointed to the passage of her Honour's reasons that I have quoted and submitted that in saying that 'it is clear from the documents that have been lodged in respect to the claim and in defence of the claim that there is no real question to be tried in respect to defending the claim. There is no defence to the prima facie case of the claim, and it is certainly my view – it is overwhelmingly my view that the defendant has not satisfied this court that her defence has a reasonable prospect of succeeding' her Honour was addressing the limitations contained in s 31(3) of the Magistrates Court (Civil Proceedings) Act. I do not accept that submission. In my view the issue that her Honour was addressing in that passage was whether the City of Melville should be awarded summary judgment. I conclude that her Honour made a jurisdictional error by disregarding a limit on her powers to award costs. Mrs Tey is aggrieved by an order made on a ground that might have justified an order of certiorari.
Section 36(4) provides that the Supreme Court may grant relief. The use of the word 'may' indicates that the court has a discretion as to whether to grant relief: Re an Application under Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151 [48] ‑ [50] (Beech J). Ordinarily, where a court has exceeded its jurisdiction, the Supreme Court will be inclined to exercise its discretion to make an order setting aside the order made in excess of jurisdiction unless it is unjust to do so: Re an Application under Magistrates Court Act 2004; Ex parte Brecker [51] ‑ [61].
The City of Melville submits that I should exercise my discretion not to grant relief because Mrs Tey had a right of appeal to the District Court under s 32 of the Magistrates Court (Civil Proceedings) Act on the basis that and the same order will be the same if the matter is remitted to the Magistrate's Court.
I have regard to the facts that there is a right of appeal to the District Court in a minor case on the grounds of excess of jurisdiction and that the amount of money with which this action is concerned is small. However I do not regard it as beyond doubt that the discretion as to costs will be exercised in the same way if it is exercised in accordance with s 31(3) of the Magistrates Court (Civil Proceedings) Act. I will not, in the exercise of my discretion, refuse to grant relief.
I will set aside the costs order. The consequence is that the City of Melville can apply in the Magistrates Court for a costs order under s 31(3) if it wishes to do so. If it does so there is no reason why the application could not be heard by Magistrate Langdon.