Bajaj v Magistrate Trevor Darge - [2021] WASCA 218

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
Rayney v AW [2009] WASCA 203
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 the second and third respondents, Mr and Mrs Palmer, as tenants. Having brought proceedings in the Magistrates Court seeking compensation of $4,068.23, pursuant to the Residential Tenancies Act 1987 (WA) (the Act), Mr Bajaj sought, in substance, a review under s 36 of the Magistrates Court Act 2004 (WA).
The primary judge refused to grant a review order.[1]
[1] Re Bajaj; Ex parte Bajaj [2021] WASC 335 (primary reasons).
The appellant now seeks leave to appeal against the primary decision.[2]
[2] As to the need for leave to appeal against an order dismissing an application for a review order, see Re Hogan; Ex parte Western Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288 [7] ‑ [8], [48], [53].
Whether leave to appeal should be granted involves a broad assessment of whether it is in the interests of justice to do so. The apparent merit of the proposed appeal is a consideration of the first importance.[3] In this case, we are not persuaded that there is sufficient merit in the proposed grounds of appeal to sustain a grant of leave to appeal.
[3] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [44], [117].
We begin by setting out some of the background.

The background

In 2019, Mr Bajaj, as landlord, entered into a written residential tenancy agreement with Mr and Mrs Palmer as tenants. The tenancy was for a fixed term, commencing on 13 May 2019 and continuing until 8 November 2020. The agreement provided for rent of $535 per week.[4]
[4] Primary reasons [25] - [27].
In the lead‑up to 8 November 2020, there were negotiations between the Palmers and Mr Bajaj about extending the term of the lease. In his reasons for decision, the magistrate detailed various email and other communications between the parties.[5]
[5] ts 25 February 2021, 7 - 10.
These negotiations took place against the backdrop of the Residential Tenancies (COVID‑19 Response) Act 2020 (WA) (the RTCR Act), which significantly constrained the rights of landlords to terminate leases.
On 16 October 2020, Mr Bajaj gave Mr and Mrs Palmer a written notice of termination of the residential tenancy agreement. In form, the notice was said to be Form 1C and referred to s 61(a) and s 70A of the Act. The notice said in its terms:
I hereby give you notice of termination of your residential tenancy agreement and require you to deliver up vacant possession of the premises … to be given, 16 November 2020.
On 9 November 2020, Mr Bajaj lodged an application to the Magistrates Court which included the following text:
Fixed term agreement ends in emergency period. Communications on agreements under s12(1) or section 12(2)(a)(i) of [the RTCR Act] to enter in a tenancy agreement of [a] further fixed term, or a mutual agreement on fixed term agreement be terminated had failed. Noting agreement be terminated as s 60(1)(g) applies. Issuing notice of termination under s 12(6) in emergency has no effect ...
Further, the application stated:
Tenant confirms vacating premises by 16 Nov per landlord notice and is notified notice defaults to 29 Mar 2021. For s 21(c) Court may terminate agreement of [the Act] to s 74. Ruling to not terminate fixed agreement, but let turn periodic in emergency cause 'undue hardship' for landlord given conduct in overall circumstance, and refusal for relief cause serious injustice to applicant. Tenant had opportunity to ascertain diligence. Grant would not prejudice respondent. Landlord lost paid work amidst Covid and jobseeker payments cancelled on extension in Sep.
On 15 or 16 November 2020, the Palmers vacated the premises and delivered the keys to Mr Bajaj.[6]
[6] Primary reasons [44].
Mr Bajaj's first application to the Magistrates Court came before the magistrate on 25 November 2020. The magistrate made orders in the following terms:
1.The residential tenancy agreement between the Applicant Lessor and the Respondent Tenants is terminated.
2.The date of termination may be the subject of subsequent proceedings.
3.Application otherwise dismissed.
Subsequently, both parties brought further applications in the Magistrates Court.
The Palmers commenced RSTN/11499/2020. In substance, the application sought termination of the residential tenancy agreement, an order prohibiting Mr Bajaj from bringing further applications against them and an order for compensation for their time in attending court on the earlier matter.
Mr Bajaj commenced RSTN/12110/2020. So far as is material, the application included the following:

This application is made pursuant to Order of the Court on 25 Nov 2020 as subsequent proceedings, from Case: PER/RSTN/10851/2020.

Lessor suffers undue hardship and whilst the Court did terminate the agreement. This application is to claim quantum of damages crystallised in mitigation to rely on date of termination of agreement.

The tenants are in breach of a fixed term residential tenancy agreement ('agreement') to end in the period of Covid‑19 emergency on 8 Nov 2020.

The tenants repudiated on their obligations and handed in vacant possession of the property on 15 Nov 2020 without terminating the agreement required under provisions of [the Act] and the [RTCR Act].

The lessor has since mitigated his loss of rent in re‑letting of property to progress on new residential tenancy agreement to commence 3 Jan 2021.

Lessor submits that date of termination be 2 Jan 2021 and rent loss be effective from 16 Nov 2020.

$3,668.57

Thus, in substance, notwithstanding that he had earlier given notice of termination on 16 October 2020, and notwithstanding that, on his application, the Magistrates Court had ordered on 25 November 2020 that the residential tenancy agreement was terminated, Mr Bajaj claimed that the Palmers had repudiated the residential tenancy agreement by handing over vacant possession when the agreement had not been terminated. Mr Bajaj sought rent for the period between 15 November 2020 and 3 January 2021, the latter being the commencement date of a new residential tenancy agreement he had entered. Mr Bajaj also made a claim in relation to unpaid utilities. In total, he sought an amount of just over $4,000.
On 16 February 2021, the magistrate heard evidence and detailed argument on both applications and reserved his decision.
On 25 February 2021, the magistrate gave detailed oral reasons and made the following orders on Mr Bajaj's application:
1.The Respondent Tenants shall pay the Applicant Lessor the following being:
Water Consumption - $50.00
Total Order = $50.00
2.The Security Bond of $2,140.00 held by the Bond Administrator (Ref No 34134/2019) be disbursed by the Bond Administrator as follows:
(a)$50.00 to Ramesh BAJAJ the Applicant Lessor in satisfaction of the order;
(b)$1,045.00 to Johnathan Martin PALMER the Respondent Tenant; and
(c)$1,045.00 to Breeanna Mary PALMER the Respondent Tenant.
3.Application otherwise dismissed.
The magistrate also dismissed the Palmers' application.

The magistrate's reasons

The magistrate recorded that, when Mr Bajaj's earlier application had come before him on 25 November 2020, he made an order to terminate the residential tenancy agreement, which was what both parties wanted.[7]
[7] ts 25 February 2021, 4.
The magistrate identified the primary issue on Mr Bajaj's application as being whether the tenants were liable to pay the landlord for the rent from 16 November 2020 to 3 January 2021, in circumstances where the landlord said that the tenants breached the lease by vacating early, whereas the tenants contended that they left in accordance with the date stipulated by the landlord in the termination notice.[8]
[8] ts 25 February 2021, 6.
The magistrate carefully examined the substantial correspondence between the parties in the period from September 2020 until November 2020.[9]
[9] ts 25 February 2021, 7 - 13.
After examining the legislative regime, including s 60(1)(g) of the Act,[10] the magistrate found that the email exchanges between the parties constituted an agreement in writing for the tenants to vacate the property at 16 November 2020.[11]
[10] ts 25 February 2021, 14 - 15.
[11] ts 25 February 2021, 15.
The magistrate also noted that, in any event, pursuant to s 20 of the RTCR Act, it was open to the tenant to give a notice of termination of 21 days. That meant that, given the tenants' letter of 5 November 2020 stating the tenants' intention to vacate the premises, even had there been no agreement to terminate the residential tenancy agreement, the landlord's claim would have been limited to no more than 11 days of rent.[12]
[12] ts 25 February 2021, 16.
It is convenient to outline the relevant legislative regime.

Statutory provisions

The Act

As its long title states, the Act regulates the relationship of lessors and tenants under residential tenancy agreements.
Jurisdiction to determine applications made under the Act is vested exclusively in the Magistrates Court.[13] By s 14, proceedings under the Act shall be heard and determined wherever practicable within 14 days after they are instituted and otherwise as expeditiously as possible. The court hearing the application may proceed in such manner as it considers best suited to the purposes of the Act.[14] The court is not bound by the rules of evidence.[15]
[13] The Act, s 12A.
[14] The Act, s 20(a).
[15] The Act, s 21.
Section 26 provides as follows:
(1)An order made by a court under this Act is final and binding on all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof.
(2)No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.
(3)This section applies despite Part 7 of the Magistrates Court (Civil Proceedings) Act 2004.
Part V concerns the termination of residential tenancy agreements. Section 60(1) sets out an exclusive list of circumstances in which residential tenancy agreements shall terminate or be terminated. It provides that despite any Act or law to the contrary a residential tenancy agreement shall not terminate or be terminated except in one of the following circumstances:
(a)where the lessor or tenant gives notice of termination under this Act and -
(i)the tenant delivers up vacant possession of the premises on or after the expiration of the period of notice required under this Act; or
(ii)a competent court, upon application by the lessor, terminates the agreement under section 71;
(b)in the case of a tenancy for a fixed term, where the lessor or tenant gives a notice of termination under section 70A and -
(i)the tenant delivers up possession of the premises on or after the day on which the term of the agreement expires in accordance with that section; or
(ii)a competent court, upon application by the lessor, terminates the agreement under section 72;
(ba)in the case of a particular tenant's interest in the agreement, where the tenant —
(i)gives notice under section 71AB(1) of termination of the tenant's interest together with at least 1 of the documents required under section 71AB(2); and
(ii)vacates the premises on or after the expiration of the period of notice required under section 71AB(5);
(bb)in the case of a particular tenant's interest in the agreement, where the tenant -
(i)gives notice under section 71AD(4) of termination of the tenant's interest; and
(ii)vacates the premises on or after the expiration of the period of notice required under section 71AD(5);
(bc)in the case of a particular tenant's interest in the agreement, where a competent court terminates the tenant's interest under section 71AE;
(c)where a competent court terminates the agreement under section 73, 74, 75A or 75;
(d)where a person having superior title to that of the lessor becomes entitled to possession of the premises;
(e)where a mortgagee in respect of the premises takes possession of the premises in pursuance of the mortgage;
(f)where the tenant abandons the premises;
(g)where the tenant delivers up vacant possession of the premises pursuant to an agreement in writing between the lessor and the tenant to terminate the residential tenancy agreement;
(h)where the agreement terminates by merger;
(i)where every tenant dies. (emphasis added)
Section 70A relates to fixed term tenancies. It provides for either party to give a notice requiring the tenant to deliver up possession subject to stipulated conditions.
Section 72(1) provides that where a party to a residential tenancy agreement gives notice of termination under s 70A and the tenant fails to deliver up possession on the possession day, the lessor may, within 30 days after the possession day, apply to the court for an order terminating the agreement and an order for possession.
Section 74 empowers the court to terminate a residential tenancy agreement if satisfied that either party to it would suffer undue hardship if required to terminate it under any other provision of the Act.

The RTCR Act

Section 12 of the RTCR Act regulates fixed term tenancies that end during the emergency period (a term defined in s 4 of the RTCR Act and relevantly beginning on 30 March 2020 and ending on 28 March 2021[16]), where the parties do not enter into a further tenancy. In such circumstances, subject to the power of either party to apply to the Magistrates Court to modify the terms of the tenancy agreement, the agreement continues on the same terms. By s 12(6), a notice of termination given under s 70A of the Act during the emergency period has no effect. By s 74 of the RTCR Act, the specified day in the notice of termination is taken to be the day after the end of the emergency period.
[16] See reg 3 Residential Tenancies (COVID-19 Response) Regulations 2020 (WA).
Section 17(1) provides that a tenancy agreement cannot terminate or be terminated during the emergency period other than under div 2 of the RTCR Act and that this is so notwithstanding s 60(1) of the Act. However, this must be read with the other provisions of the RTCR Act; as noted at [37] below, s 21 of the RTCR Act incorporates various circumstances of termination as are found in the Act.
Section 20 provides that a tenancy agreement is terminated if the tenant gives notice of termination in accordance with s 67 of the Act not less than 21 days before the day on which the agreement is to terminate.
Section 21 provides various circumstances in which a residential tenancy agreement is terminated. Among them is if s 60(1)(g) of the Act applies.

The Magistrates Court Act

Section 36 of the Magistrates Court Act provides, so far as is relevant, as follows:
(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 grounds of review in the primary proceedings

In the primary proceedings in the Supreme Court, Mr Bajaj advanced the following five grounds of review:
1.The Magistrate misapprehended the statutory requirement in s 17(1) and s 17(2)(a) of the RTCR [Act] at termination of residential tenancy agreement during emergency period governed under Division 2 of the RTCR [Act]. On that the Court terminates agreement on a relevant provision of the [Act] upon hearing an application brought under s 21(1)(c) of the RTCR [Act] and s 60(1)(c) and s 74 of the [Act]. It was incumbent on the Magistrate to be satisfied in weighing factors on discretion in s 74(1) of the [Act] were made out before terminating the agreement in hearing MC/CIV/PER/RSTN/10850/2020. It was open to the Magistrate to visit the issue on termination, or whether termination be brought under provision, s 21(1)(b) of the RTCR [Act], and s 60(1)(g) of the [Act] at the original hearing, but not a subject matter of re-visiting the determination in trial hearing. [s 36(1)(a)]
2.The Magistrate misapprehended the nature or limits of the function and powers conferred in the provisions for s 14 and s 20(m) of the [Act] and dealing with residential tenancy applications. Further, to misdirect himself to hear application of the other party, contesting the issues of termination, an abuse of process to list a trial hearing to redetermine the issue of termination on other provisions namely, s 21(1)(b) of the RTCR [Act], and forming a view of s 60(1)(g) of the [Act]. [s36(1)(c)]
3.The Magistrate misconstrued s 74 of the [Act] given that agreement was terminated, when hearing original application of the applicant and to note that other party delivered the vacant possession. It had become mandatory under s 74(2)(a) of the [Act] to specify date an order of termination was to operate and assessed basing on factors and consider duty of mitigation on breach of agreement brought in subsequent proceedings of the applicant. [s 36(1)(a)]
4.The Magistrate misconceived the authority to exercise a discretion, or failing to ascertain that overall circumstances were appropriate, at duty of mitigation of s 58 and for relief on breach of residential tenancy agreement to compensate for loss and costs, under s 15 of the [Act], not limiting on a discretion under s 74(2)(b) of the [Act]. [s 36(1)(a)]
5.The Magistrate misconstrued s 60(1)(g) of the [Act] that in original proceedings of the applicant, which was the subject of both parties had not conceded to mutually terminate the agreement, nor a court order to terminate that agreement under s 21(1)(b) of the RTCR [Act]. Revisiting the issue of termination as brought in an application by other party, not specifying a statutory cause of action, rather make representation of notice and to determine termination of s 60(1)(g) of the [Act], without alluding, but failing to draw prior attention of the applicant was a failure to accord procedural fairness, or deny a fair hearing and to ignore facts is breach of rules of natural justice.
The judge described grounds 1 ‑ 5 of Mr Bajaj's application as prolix and largely unintelligible.[17] We agree.
[17] Primary reasons [90].

The primary judge's decision

The primary judge considered that, in the legislative framework that applied to the circumstances of the case, it was only if an application falls within the provisions of s 26 of the Act that a review order could issue under s 36 of the Magistrates Court Act.
The primary judge expressed considerable difficulty in discerning the substance of the complaints sought to be made by Mr Bajaj. That difficulty is, with respect, readily understandable and one we have experienced in dealing with the application before this court.
The primary judge understood Mr Bajaj to rely on pt 2 div 2 of the RTCR Act to argue that, notwithstanding that he obtained an order on his first application that the lease was terminated, the lease was nevertheless not lawfully terminated and so continued, in effect, beyond 25 November 2020 when the first Magistrates Court order was made.[18] Further, the judge understood Mr Bajaj to be arguing that consequently the tenants were obliged to continue to pay rent until 4 January 2021.
[18] Primary reasons [79].
The judge considered that such arguments were entirely without merit, given that the orders of 25 November 2020 were made and had not been impugned.[19] The judge emphasised that no challenge was made to the orders of 25 November 2020.[20]
[19] Primary reasons [81] - [82].
[20] Primary reasons [42], [89].
The judge concluded that there was no arguable basis to show any error of a kind that falls within s 36 of the Magistrates Court Act or the more limited review allowed for in s 26(2) of the Act.[21]
[21] Primary reasons [95].

The appeal to this court

Regrettably, and without intending any disrespect, Mr Bajaj's grounds of appeal and submissions on his application for leave to appeal are, like his application to the primary judge, prolix and unintelligible; indeed all the more so. The grounds, which run to 13 pages, are set out in Annexure A to these reasons. Doing the best we can, we take the substance of the grounds to be as follows:
(1)The primary judge erred in law in [30], [39], [42] and [64] of the primary reasons in disregarding s 74 of the Act and the effect of a notice of termination under s 70A during the COVID‑19 emergency period.
(2)The primary judge erred in law in [43] and [78] ‑ [89] of the primary reasons in failing to have regard to the mandatory consideration of the requirements of s 74(2)(a) of the Act that an order terminating a residential tenancy agreement also specify a day as from which the orders shall operate.
(3)The primary judge erred in law in [49] ‑ [52], [58] and [77] of the primary reasons in failing to find that there was an abuse of process or that the magistrate exceeded the limits of his function and powers conferred under s 14 and s 20 of the Act.
(4)The primary judge erred in law in [59], [60], [63], [65] and [73] of the primary reasons in failing to find that the appellant had been denied procedural fairness by the magistrate.
(5)The primary judge erred in [90] - [100] of the primary reasons in failing to find that the grounds of review disclosed arguable error and had a reasonable prospect of success.
(6)The primary judge erred in law in failing to recognise that the present case raised important considerations as to the relevant principles of law - see primary reasons [11] ‑ [17].

Legal principles

The power in s 36 of the Magistrates Court Act is, in effect, a judicial review power.[22] A review order can only be made if the threshold for an error of the type identified in s 36(1)(a), (b) or (c) is satisfied.[23]
[22] Rayney v AW [2009] WASCA 203 [27].
[23] Rayney v AW [31].
The threshold for determining whether a review order should be made has sometimes been expressed as demonstration of an arguable case and sometimes as a case with a reasonable prospect of success.[24] For present purposes, the question is whether the appellant demonstrated a case with a reasonable prospect of success, since demonstration of an arguable case that did not meet the reasonable prospect threshold would not sustain the grant of leave to appeal.
[24] See, for example, the authorities referred to in Saldanha v Fujitsu [No 2] [2011] WASC 360 [61].
The primary judge considered that s 26(2) of the Act confined the grounds upon which an application could be made under s 36 of the Magistrates Court Act. It is not necessary to decide whether the principle espoused by the High Court in Kirk v Industrial Court of New South Wales[25] might affect such a construction of s 26(2) of the Act. The appellant's application for leave to appeal can be determined on the assumption, favourable to the appellant, that it was sufficient for him to establish, to the required threshold, jurisdictional error on the part of the magistrate.
[25] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [99] ‑ [100].
The concept of jurisdictional error was described in the following terms by Hayne J in Re Refugee Review Tribunal; Ex parte Aala:[26]
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[26] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163].
This passage was quoted with approval by the plurality in Kirk v Industrial Court (NSW),[27] and applied by this court in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum.[28]
[27] Kirk v Industrial Court (NSW) [66].
[28] Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] - [87].
It is more difficult to demonstrate jurisdictional error on the part of an inferior court than in the case of an administrative decision‑maker. Generally speaking, unlike administrative decision-makers, inferior courts have jurisdiction to decide questions of law, including the proper construction of a statute, and to do so incorrectly.[29]
[29] Craig v South Australia (1995) 184 CLR 163 179 - 180; Kirk v Industrial Court (NSW) [67] - [68]; Quinn v Commonwealth DPP [2021] NSWCA 294 [9] - [12], [118].
While the categories are not closed, the following five categories of jurisdictional error in respect of inferior courts and analogous bodies are well established:[30]
First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, 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. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied ( [...] a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
[30] Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181]; Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [16], citing Craig v South Australia (177 - 178).
Another category is where the decision is made in breach of natural justice.[31]
[31] Kirk v Industrial Court (NSW) [60].

Disposition

Many of the appellant's grounds and submissions focus on s 74 of the Act. The appellant asserts that s 74 was the foundation of his first application and so the magistrate's orders of 25 November 2020 were also so founded. The second step of this submission does not follow. Bearing in mind his Honour's evident familiarity with the provisions of the Act, the provision in the orders of 25 November for later determination of the date of termination strongly suggests that the magistrate was not acting under s 74, which by subs (2) explicitly requires the court to specify the date the order takes effect. In any event, as explained below, that provision is not the source of the power exercised by the magistrate in Mr Bajaj's second application. As the primary judge emphasised, the subject-matter of the proceedings instituted by Mr Bajaj is the magistrate's exercise of power in the second application, which his Honour heard on 16 February 2021 and determined on 25 February 2021.
It is not in doubt that the tenancy agreement between Mr Bajaj and the Palmers was a residential tenancy agreement within the meaning of the Act. Both parties made applications, pursuant to s 15 of the Act, for relief in relation to the residential tenancy agreement. Consequently, by s 12A of Act, read with s 13A, the magistrate had jurisdiction to hear and determine the applications that were before him on 16 and 25 February 2021.
The applications before the magistrate required attention to whether the tenancy agreement had been terminated. In considering that question, the magistrate correctly understood the statutory framework, namely that a tenancy agreement can only be terminated in accordance with s 60 of the Act.
The statutory foundation for the magistrate's finding that the tenancy agreement between Mr Bajaj and the Palmers was terminated was, as his Honour said, s 60(1)(g) of the Act. Having concluded that the parties made an agreement in writing to terminate the tenancy agreement, the magistrate applied s 60(1)(g) of the Act in proceeding on the basis that the agreement to terminate was effective and the residential tenancy agreement was thereby terminated.
By s 21(1)(b) of the RTCR Act, that conclusion was unaffected by the RTCR Act - the residential tenancy agreement was terminated if s 60(1)(g) of the Act applied. Thus, Mr Bajaj's submission that the magistrate committed jurisdictional error by ignoring the RTCR Act is unfounded.
For these reasons, the premise of grounds 1 - 3, namely that the magistrate's power was derived from s 74 of the Act, is misconceived.
Further, some of Mr Bajaj's submissions assume or assert that the primary judge or magistrate relied on termination under s 60(1)(b) of the Act, following service of a notice under s 70A of the Act, contending that this overlooks the effect of s 12(6) and s 74 of the RTCR Act. The premise of these submissions is flawed because, as already explained, the magistrate relied upon s 60(1)(g) of the Act, not s 60(1)(b).
The magistrate gave careful and detailed consideration to the communications between the parties, concluding that they gave rise to an agreement in writing for the residential tenancy agreement to be terminated. The magistrate's consideration of the evidentiary material does not reveal any arguable basis for jurisdictional error.
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].
For these reasons, grounds 1 ‑ 3 are entirely without substance.
There is no basis to consider that the primary judge erred in his conclusion, adverse to the appellant, concerning procedural fairness. In circumstances where Mr Bajaj's first application explicitly referred to s 60(1)(g)[38] and where, at the hearing before the magistrate, attention was given to the email correspondence between the parties, it was not incumbent on the magistrate to specifically draw to Mr Bajaj's attention the effect of that provision or its potential application.
[38] See [10] above.
Mr Bajaj's assertion that there was actual bias on the part of the magistrate is entirely without foundation.[39]
[39] The demanding test for making out such an allegation is explained in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 [68] ‑ [74] and summarised in WKS v The State of Western Australia [No 4] [2020] WASCA 178 [341].
Ground 4 is without merit.
Absent merit in one of the preceding grounds, neither ground 5 nor 6 could sustain a review order, nor could they sustain the grant of leave to appeal against the refusal to make such an order.
Otherwise, Mr Bajaj's diffuse, confusing and often unintelligible submissions do not reveal any arguable basis for the making of a review order or for finding error on the part of the primary judge.
We are not persuaded that the magistrate made any error of fact or law, much less any error of the kind referred to in [53] and [54] above, or any jurisdictional error.

Conclusion

Mr Bajaj has fallen well short of demonstrating that his appeal has sufficient merit to justify the grant of leave to appeal. The primary judge's decision is not attended with sufficient doubt to warrant its being reconsidered. Consequently, we would refuse leave to appeal and dismiss the appeal.

That conclusion is reinforced by considerations of proportionality, which is part of what informs the interests of justice. Bearing in mind the insubstantial sum of money in dispute - about $4,000 - and the point correctly made by the magistrate at [25] above, even if an arguable basis for the making of a review order were demonstrated, it is at least doubtful that it would be in the interests of justice to deploy scarce public judicial resources in relation to a claim of this magnitude.

Annexure A

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
16 DECEMBER 2021