JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BAJAJ -v- MAGISTRATE TREVOR DARGE [2021] WASCA 218
CORAM: BEECH JA
VAUGHAN JA
HEARD: 10 DECEMBER 2021
DELIVERED : 16 DECEMBER 2021
FILE NO/S: CACV 75 of 2021
BETWEEN: RAMESH BAJAJ
Appellant
AND
MAGISTRATE TREVOR DARGE
First Respondent
JONATHAN MARTIN PALMER
Second Respondent
BREEANNA MARY PALMER
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: KENNETH MARTIN J
Citation: RE BAJAJ; EX PARTE BAJAJ [2021] WASC 335
File Number : CIV 1612 of 2021
Catchwords:
Administrative law - Jurisdictional error - Application for review order under s 36 of the Magistrates Court Act 2004 (WA) - Whether arguable jurisdictional error by the magistrate demonstrated - Turns on own facts
Legislation:
Magistrates Court Act 2004 (WA), s 36
Residential Tenancies (COVID-19 Response) Act 2020 (WA), s 12, s 17, s 21
Residential Tenancies Act 1987 (WA), s 60
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Case(s) referred to in decision(s):
Craig v South Australia (1995) 184 CLR 163
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 (2011) 244 CLR144
Quinn v Commonwealth DPP [2021] NSWCA 294
Re Bajaj; Ex parte Bajaj [2021] WASC 335
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re City of Joondalup; Ex Parte Mullaloo Progress Association Inc [2003] WASCA 293; 132 LGERA 243
Re Hogan; Ex parte Western Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Saldanha v Fujitsu [No 2] [2011] WASC 360
Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 46 NSWLR 55
WKS v The State of Western Australia [No 4] [2020] WASCA 178
JUDGMENT OF THE COURT:
Introduction
The appellant, Mr Bajaj, entered a written residential tenancy agreement with…
Keep reading for free
Create a free CaseChat account to read Bajaj v Magistrate Trevor Darge and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] WASCA 218
- Decision Date
CaseChat Overview and Summary
The court held that the nature of the proceedings did not permit a review of the evidence and the magistrate's findings of fact. An error about a finding of fact does not constitute or reveal a jurisdictional error and concerns the merits of administrative action, not its legality. The court further held that the termination of the residential tenancy agreement was not a jurisdictional qualification to the magistrate's powers. The application of section 60 was a matter arising in the course of the magistrate's consideration of the powers under the Act and was not preliminary to, or a pre-condition of, the exercise of those powers. Therefore, there was no basis for the court to revisit the magistrate's finding of fact that the parties had agreed in writing to terminate the tenancy agreement. Bajaj's reliance on the doctrine of abuse of process was also misplaced as the Palmers' actions did not amount to a collateral attack on the decision of 25 November 2020.
In conclusion, the court dismissed Bajaj's application for judicial review and upheld the magistrate's decision that the parties had agreed in writing to terminate the tenancy agreement. The court held that the doctrine of abuse of process could not assist Bajaj in this case.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Mr Bajaj's submissions assert error in the magistrate's finding that the parties made an agreement in writing to terminate the tenancy agreement.[32] The nature of these proceedings, being by way of judicial review, does not permit this court to undertake its own review of the evidence and the magistrate's findings of fact, as would occur with a general right of appeal by way of rehearing. An error about a finding of fact 'which does not constitute or reveal a jurisdictional error, concerns the merits of administrative action, not its legality'.[33][32] Appellant's submissions [1.18] - [1.21].[33] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [149]. Termination in accordance with s 60 was not a jurisdictional fact in the sense of a fact that must exist objectively before a power is enlivened.[34] Where a jurisdictional qualification is expressed in powers conferred on a court, there is a strong presumption against its being interpreted as contingent upon the actual existence of a state of facts, as opposed to the decision‑maker's opinion in that regard.[35] In any event, in the present case, the magistrate's powers under the Act arose in the circumstances and manner outlined in [56] above. The fact of, and the circumstances of, termination of the residential tenancy agreement is not expressed to be, and on a proper construction is not, a jurisdictional qualification to the magistrate's powers. The application of s 60 is a matter arising in the course of the magistrate's consideration of the powers under the Act; it is not preliminary to, or a pre-condition of, the exercise of those powers.[36][34] See, for example, Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 [43]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 (2011) 244 CLR144 [57], [107] - [109].[35] Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 391; Re Carey; Ex parte Exclude Holdings [189] - [190].[36] Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 46 NSWLR 55 [44]; Re City of Joondalup; Ex Parte Mullaloo Progress Association Inc [2003] WASCA 293; (2003) 132 LGERA 243 [45]. Consequently, there is no basis for this court to revisit the magistrate's finding of fact that the parties agreed in writing to terminate the tenancy agreement. Mr Bajaj's reliance on the doctrine of abuse of process is equally misplaced. As best we can understand his submissions, he asserts abuse by the Palmers in embarking on a 'collateral attack'[37] on the decision of 25 November 2020 that the tenancy agreement was terminated. While the order did not specify, and left for later determination, the date of termination, it is unmistakably clear that under the order the termination took effect no later than the date of the order, namely 25 November 2020. Yet, Mr Bajaj's case before the magistrate on 16 February 2021 had, as an essential element, that the tenancy agreement had not been terminated by 25 November 2020. The same was not true of the Palmers' case. The doctrine of abuse of process cannot assist Mr Bajaj.[37] Appellant's submissions [3.1].