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[2012] WASC 248
General information, not legal advice.
Supreme Court of WA
2012-07-04
Kechnie J
Original judgment source is linked above.
1 McKECHNIE J: The plaintiff applies by notice of originating motion seeking a review order of the decision of a magistrate on 2 July 2009. In other words nearly three years have passed since that decision. The fate of the plaintiff's appeal against the magistrate's decision is set out in Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113 [2] [7].
2 While framed as an application for review, the grounds are in reality an attempt to circumvent the decision already made by the Court of Appeal.
3 The notice of motion was listed for 6 September 2012. However the plaintiff has written to the court seeking an order to have all files transferred from the Perth Magistrates Court and the District Court to peruse them in detail, make a note of them and rely on evidence on those files. There is no point in contemplating such an order if the application for review is without merit.
4 I accept the reasoning of Corboy J in Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 [115] [117].
5 In my opinion, the application for review should be refused on strong discretionary grounds:
6 As is apparent from Tey v Optima Financial Group Pty Ltd the plaintiff has incurred an obligation in respect of costs of over $35,000. It would be unfair if the respondent in those proceedings, who would be a person interested in upholding the review order, was made to incur even more costs before the plaintiff has discharged her debt in respect of costs so far incurred.
7 In addition to refusing to make an order on discretionary grounds I would also decline to make a review order under the inherent power of the court to prevent its processes being used vexatiously and oppressively.
8 It is an improper purpose to bring collateral proceedings in an attempt to circumvent a decision, especially one made after an appeal.
9 There must be a finality to litigation. These proceedings are an abuse of the processes of the court.
10 For the reasons I have just enumerated, each of those descriptions also applies to these proceedings. I would therefore dismiss the notice of originating motion and make no order for bringing documents into this court.
1 McKECHNIE J: The plaintiff applies by notice of originating motion seeking a review order of the decision of a magistrate on 2 July 2009. In other words nearly three years have passed since that decision. The fate of the plaintiff's appeal against the magistrate's decision is set out in Tey
Optima Financial Group Pty Ltd [No 3]