RE MR R H BROMFIELD; EX PARTE TEY [2012] WASC 303 (24 August 2012)

1.2 The Plaintiff believed that the learned Magistrate failed to ascertain the appropriate differential rates applied to her vacant land.

1. 2.1 The Plaintiff believed that she was denied procedural fairness. Throughout the Magistrate Court trial, the respondent's lawyer was adamant not to provide sworn original copies of Rates Notices issued by City of Gosnells to the Plaintiff referred to in the Summary Judgment Application. Only when during the District court appeal hearing on 15 February 2012 the Respondent's lawyers represented by Mr Steven Blyth of Lewis Blyth & Hooper admitted that those Rates Notices issued by the City of Gosnells for years ending 30 June 2007, 2008, 2009, 2010, and 2011 were flawed. Mr Blyth asked the Hon Judge Goetze not to use the word 'invalid'. But the Judge did. See District Court transcript of proceedings dated 15 February 2012.

2.2 The Plaintiff was denied procedural fairness because the Magistrates failed to do so.

The Order made by His Honour Magistrate Bromfield on 1 July 2011 in Action No ARM/GCLM/844 of 2010 in the Magistrates Court of Western Australia at Perth granting judgment in favour of City of Gosnells with costs,

(a) Be quashed.

(b) Set aside and dismissed. And Order that:

(c) The Review Order be granted.

2 The notice of motion was accompanied by an affidavit in spartan form, as follows:

1. I am the Plaintiff, and I am unrepresented. I was also a qualified accountant.
2. I confirm that to the best of my knowledge and belief, the contents of NOTICE OF ORIGINATING MOTION FILED 18 April 2012 are true and correct.

3 Because this affidavit gave no information of any use, on 4 July 2012 at a directions hearing, I gave the applicant 21 days to file any supplementary affidavit and adjourned the matter to 26 July 2012.

4 The applicant filed two further affidavits. Affidavit Number Two (2) sets out matters of law in relation to the Magistrates Court Act s 36 and lists a number of cases including Re Michelides; Ex parte Chin [2008] WASC 256. This affidavit does not 'support the application': O 56A r 2.1(c).

5 Affidavit Number Three (3) attaches a number of documents, and what is headed a Brief Summary of Magistrates Court case 844/2010:

(a) The case commenced at Armadale Magistrates Court at 109 Jull Street, Armadale WA where City of Gosnells, the claimant, filed a Form 3 General Procedure Claim on 4 May 2010. The alleged Claim is and was for an amount of $1,778.42. It is a claim of less than $10,000.00. It is a 'minor case' and the alleged claim should have been claimed on a minor case FORM. But it was not. See Annexure 'KYT1'.

(b) I, the Defendant, on 12 May 2010 responded and filed an Intention To Defend accompanied by a sworn affidavit to request that the proceedings be conducted at Perth Registry. The then Armadale Magistrate at first hearing granted the change of venue. See Annexure 'KYT2'.

(c) On 15 September 2010, (i) City of Gosnell's lawyers Lewis Blyth & Hooper filed a FORM 23 application seeking in order 2 Summary judgment against me, the Defendant. See Annexure 'KYT3'. (ii) Accompanied this FORM 23 is the Notice of Appointment of Lawyers. See Annexure 'KYT4'. (iii) And, accompanied this FORM 23 is a 4page FORM 2 affidavit sworn by Wendy Mary Adams. Her 4page affidavit was also accompanied by some 93 pages of documents which I have not copied here for the court. It should be intact in the Magistrates Court file. See Annexure 'KYT5'.

(d) See Annexure 'KYT6' which is not a true copy of the rate notice. This claim against me for an amount of $1,504.11 for financial year 2009/2010 is different from the original claim of $1778.42 in Annexure 'KYT1' of which the year it relates was not stated. The City of Gosnells sued for one year as a test case. The fact is all rates notices issued for years ending 30 June 2007, 2008, 2009, 2010, and 2011 were invalid. The city of Gosnells has not reissued any new rates notices to me, the Defendant, to rectify the defects. The Claimant breached the Local Government Act 1995, the Local Government (Financial Management) regulations 1996 - REG 56, and Valuation of Land Act 1978.

(e) See Annexure 'KYT7'. Magistrates Bromfield delivered judgment in favour of the Claimant, and ordered interests be paid.

(f) Case 844 of 2010 was heard at Perth Magistrates Court on 1 July 2011. The transcript contained over 50 pages which I have not copied for the court.

6 Attached also was the general procedure claim filed by the City of Gosnells. The description of the claim is:

1. The sum of $1612.02 being the amount of council rates and charges for the property at 45 Tarradee Circuit Thornlie WA 6108.
2. Interest at the rate of 11% per annum on a daily balance.
3. Any costs associated with this action.

7 To this claim, the applicant filed an intention to defend the full amount of the claim. It is this claim that led to the judgment by Bromfield SM.

8 On 15 September 2010, solicitors for the City sought orders:

1. There be an order changing the name of the defendant in the proceedings from Kok Tey to Kok Yong Tey.
2. Summary judgment be granted in favour of the claimant against the defendant in the sum of $1,778.42 and aggregate interest of $185.02.
3. The claimant have leave to be represented by Lewis Blyth & Hooper or a legal practitioner in relation to this application.

9 The application was listed for hearing on 4 October 2010 at 10.00 am. Supporting the application for summary judgment was an affidavit from the rates supervisor from the City of Gosnells setting out the basis of the claim. Left unexplained in the applicant's affidavit is what happened between October 2010 and the judgment on 1 July 2011 when judgment was given:

1. Judgment to the Claimant in the sum of $1504.11 together with interest calculated at the rate of 11% per annum,

(a) on $268.00 on and from 29 August 2008; and

(b) on $1101.27 on and from 28 August 2009 to judgment.

1. Defendant to pay Claimant's allowable costs of the claim fixed in the sum of $165.95.
2. Application dated 29 September 2010 is dismissed.
3. Hearing of application dated 16 June 2011 is vacated, and the hearing brought forward to 1 July 2011 and dismissed.

10 The applicant also annexes a copy of what is said to be a tax invoice issued on 24 July 2009 addressed to Ms Kok Y Tey, 9 Barclay Road, Kardinya WA 6163, in respect of property number 240565 in the sum of $1,504.11. The amount in the rate notice is different from the amount claimed in the general procedure claim of $1,612.02. It is this latter amount upon which judgment was entered. However, the affidavit of the rates supervisor annexed a copy of the rate notice and further says:

1. The City of Gosnells claims the sum of $1,612.02 against the defendant in respect of Tarradee Circuit and that relates to the City of Gosnells tax invoice in respect of property No 240565, being Tarradee Circuit, for the financial year 2009/2010 directed to the defendant dated 24 July 2009, which provides an amount due by Friday 28 August 2009 to be $1,504.11, a copy of which tax invoice (otherwise known as a rates notice) is annexed and marked 'I'.
2. That invoice indicates a balance of $402.84 brought forward from the financial year 2008/2009 - in other words, there were outstanding rates of $402.84 from the financial year 2008/2009 applicable to Tarradee Circuit and the defendant as at 24 July 2009.
3. By Section 6.51 of the Act headed 'Accrual of Interest on Overdue Rates or Service Charges', the City of Gosnells is entitled to impose interest at a rate set in its annual budget on a rate or service charge, which includes rates and taxes in respect to Tarradee Circuit and includes the invoice annexed hereto dated 24 July 2009.

11 The applicant asserts that the rate notice is not a true copy of the rate notice. She says, in the brief summary of the case at (d), which I have already set out, that the amount of $1,504.11 is different from the original claim of $1,778.42. However, the rates supervisor explained how the claim was calculated.

12 I am conscious that the applicant is a litigant pro se. The considerations when dealing with litigants in person have been recently gathered together in Tey v City of Gosnells [2010] WASC 96, and I apply those principles in considering the applicant's case. The applicant has some experience in the Magistrates, District and Supreme Courts, but this experience does not convert her into a practised litigant or a knowledgeable one. She misunderstands the nature of a review order and the powers and limitations of this court in respect of review orders.

13 Faced with such a litigant who has selected what to file in evidence, there are limits to judicial intervention. Nevertheless, despite being given the opportunity to supplement the first inadequate affidavit with such material as she would wish to put before the court, there is nothing in the subsequent affidavits that justify an order for review.

14 The Supreme Court's powers to control the Magistrates Court are set out in the Magistrates Court Act s 36. The purpose is set out in Rayney v AW [2009] WASCA 203. The principles are gathered together by Hasluck J in Re Michelides; Ex parte Chin from [95]. The limits of a general power of review are explained in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163.

15 However, a review order does not supplant an appeal. In essence, a review order may be appropriate where a magistrate ought to do an act and has not, or may be acting beyond jurisdiction. There is no basis for a review order if a magistrate makes a wrong decision within jurisdiction.

16 The test for obtaining a review order is that the applicant establishes an arguable case, one with reasonable prospects of success. While I accept that the applicant is a litigant in person, it remains the fact that there is no evidence whatever that would raise an arguable case to justify a review order. It is not asserted that the magistrate lacked jurisdiction to grant judgment on a general claim and clearly the magistrate had jurisdiction to do so under the Magistrates Court (Civil Proceedings) Act 2004 (WA).

17 There is no evidence that the magistrate, whether constructively or actually, refused to exercise jurisdiction.

18 There is no arguable case that the magistrate has done or failed to do any act which would engage the powers of the court under the Magistrates Court Act s 36.

19 The applicant asserts in pars 2.1 and 2.2 that she believes she was denied procedural fairness. It is difficult to follow what is the allegation. If it is, as par 2.2 suggests, that the applicant was denied procedural fairness because the magistrate did not use the word 'invalid', then no procedural unfairness is shown.

20 In the absence of transcript, there is no proof of the assertions made in par 2.1. Even if there was, the actions of counsel do not appear to support an arguable case of procedural unfairness.

21 Nor is there any evidence of error by the magistrate sufficient for me to remit the matter to the District Court under the Magistrates Court Act s 36(5)(b). Based on par 2.1 of the application, it may be that the applicant has already appealed against the magistrate's decision. If so, I infer she was unsuccessful.