Supreme Court of WA|2008-11-07|Before: Hasluck J

The application for review is granted and a review order is made in respect of each of the following decisions; that is, the decision of her Honour Magistrate Musk in the matter of FR 944/07 and that of his Honour Magistrate Michelides in the matter of FR 417/07 of the Magistrates Court at Fremantle, with the review order to be heard by a judge of the Supreme Court in chambers on a date to be fixed.
For the time being no order is made as to the decision of Commissioner Herron in the matter of APP 6/08 in the District Court.
A copy of the notice of motion for review order, a copy of the reasons for judgment and these review orders are to be served upon the judicial officers referred to in Order 1 within 56 days from the date hereof. The affidavits of the applicant specified in the reasons for judgment are to be served on them if they so require.
The proposed respondent, Timothy Robin Thies, is to be served either personally or by registered mail with the notice of motion for review and all subject affidavits together with a copy of these orders and the reasons for judgment granting the review order within 56 days either personally or by registered mail.
This review order operates as a stay of the proceedings specified in Order 1 until further order by this Court.
These proceedings in the Supreme Court and the review orders specified in Order 1 be adjourned for further consideration by a judge in chambers on a date to be fixed, but not earlier than 28 days after service is effected in accordance with these orders.
The applicant and the proposed respondent mentioned in Order 3 above or either of them shall have liberty to apply to have the proposed respondent joined as a party to the proceedings.

Court (Civil Proceedings) Act 2004

RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 (7 November 2008)

41 On 20 May 2008 the learned commissioner delivered lengthy reasons for decision directed to these issues: Chin v Thies [2008] WADC 71.

After the event and in this appeal, Mr Nicholas Chin made much of having his 'Will deflected' employing a line from the DPP for Northern Ireland v Lynch (1975) 1 All England reports [sic] Lynch v Director of Public Prosecutions for Northern Ireland [1975] UKHL 5; [1975] 1 All ER 913; [1975] AC 653. But if it fell to me to be satisfied on balance, I would not be so satisfied. Since the judgement he has protested much about the duress but there is no evidence of it at or immediately before or even immediately after the time of judgement and the tone and mood of his communication, both to the court and to the respondent at the time of judgement, are far more consistent with a genuine desire to end the litigation and to pay the agreed amount promptly.

The findings I have made from Mr Nicholas Chin's argument in this appeal is that his allegations of duress were an afterthought and a last ditched effort to recover a position that he now regrets. There is much to establish that he and his son freely entered into all aspects of the settlement; that they cooperated and communicated several times during April, May and June 2007 with the respondent and with the registrar to bring it about and that they confirmed it without hesitation. There is no corroborative evidence of disability or duress which could properly displace the position as it now stands. As to both appellants I dismiss the appeal.

81 Previously decided cases concerning writs of certiorari suggests that an arguable case is one that has some prospect of success: Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108.

82 Under the former practice the process of applying ex parte existed in order to enable a party to come before the court quickly and simply. A party proceeding by way of ex parte application bears a most serious responsibility because the court is asked to disregard the usual requirement of hearing the other side: Zucal v Harper [2005] WASCA 76; (2005) 29 WAR 563.

95 In Re Ex Parte Bartholomew [2008] WASC 52 Murray J made the following observations about the making of a review order:

The Magistrates Court Act was proclaimed to come into operation on 1 May 2005 (Government Gazette 31 December 2004 p 7127). In the first matter to come before the court, Thompson v Lane [2005] WASC 281, which was heard and delivered in December 2005, Simmonds J noted that s 36 was clearly intended to take the place of the prerogative writs of mandamus, prohibition and certiorari which, by s 35, may not be directed to a court officer of the Magistrates Court. The term 'court officer' is defined by s 3 to mean a magistrate or other judicial officer.

In Re an Application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151, Beech J, at [49], held that, consistently with the use of the word 'may' in s 36(4), the powers of this court to make final orders on the hearing of the review were discretionary. At [55], his Honour held that although the review order required the party to whom it was directed to satisfy the court, 'that the act, order or direction should or should not be done or made or set aside,' the onus of persuasion would lie upon the applicant for relief, the party moving the court to make an order under s 36(4).

In Re an Application under the Magistrates Court Act 2004; Ex parte Snook (No 2) [2007] WASC 255, Simmonds J, at [101], expressed the view that at least in a case of denial of natural justice, as was that case, the discretion within was in the nature of a discretion to refuse relief, upon good grounds.

99 In relation to the mandamus, Rich, Dixon and McTiernan JJ made these observations in the leading case of The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228:

100 As to other forms of relief, I draw upon certain observations I made recently in Buckland v The Department of Corrective Services [2008] WASC 177 as follows:

Wherever the legislature entrusts to any body of persons other than the superior courts the power of imposing an obligation upon individuals or affecting the legal rights, the courts are inclined to hold that such bodies are required to act judicially, that is to say, they must act within jurisdiction and they will be obliged to observe the rules of natural justice by affording to the party likely to be affected notice of the case against him and an opportunity of replying to it. The requirements of procedural fairness may vary according to the nature of the statutory provisions and the circumstances in the particular case: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 615, 633; Mills v Hendriksen [2008] WASC 79 at [113] - [114].

If a body required to act judicially falls into error then relief can be obtained via the prerogative writs of certiorari and prohibition. For example, in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 the High Court held that a preliminary decision or recommendation made by a mining warden, if it is one which constitutes a condition precedent to an exercise of power that affects legal rights, will have the requisite legal effect upon rights to attract certiorari.

In the circumstances of that case, since the minister was required to take the warden's recommendation into account, the warden's decision had a discernable legal effect on the minister's exercise of discretion. Hence, certiorari lay to a challenge a decision by a warden to conduct a ballot for the purpose of determining the party entitled to priority in respect of competing applications for a mining tenement.

These principles are also reflected in the decision of the High Court in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 where it was said at 177 that a body obliged to act judicially 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. Further, such a body will exceed its authority and fall into jurisdictional error if it misconstrues the relevant statutory provisions or other instrument and thereby misconceives the nature of the function it is performing with extent of its powers in the circumstances of the particular case. [41] - [44]

114 In Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 Barwick CJ expressed the rule in this way:

115 It has therefore been said that if a judgment is erroneous, but nonetheless correctly expresses the intention of the court, it may be set aside or varied only on appeal: DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226.

122 The learned author observes that a court may set aside any order made by consent, and intended to carry out an agreement between the parties, upon any ground on which the agreement may be set aside raised in a separate proceeding instituted for that purpose. If judgment was obtained by fraud practised on the court there are three possible courses of action depending on the circumstances; that is, an action may be brought to set aside the judgment; an application may be made in the original action; or an appeal may be taken. An appeal court may order a new trial where fraud in the conduct of the proceedings below is clearly evident. It is not necessary for the plaintiff in a new action to prove the fraud by fresh evidence which was not available to him or her and could not have been discovered with reasonable diligence before the judgment was delivered: McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 at 532.

123 It is therefore necessary in cases of this kind for the plaintiffs to establish that they and the court were deceived and that since the trial they have discovered something material in the sense of fresh facts that either in themselves or in combination with previously known facts would prove fraud. It follows from the public interest in the finality of litigation that a party cannot seek to litigate matters that were the subject of earlier proceedings by reliance on evidence on which the party failed at trial: Ridout v O'Brien [2004] WASC 137.

RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 (7 November 2008)

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RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 (7 November 2008)