Bajaj v Magistrate Trevor Darge [No 2]
[2023] WASC 184
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BAJAJ -v- MAGISTRATE TREVOR DARGE [No 2] [2023] WASC 184
CORAM: ARCHER J
HEARD: 25 MAY 2023
DELIVERED : 6 JUNE 2023
FILE NO/S: CIV 1448 of 2022
MATTER: An application under the Magistrates Court Act 2004 section 36 for a review order against Trevor Gordon Darge of the Magistrates Court at Perth
BETWEEN: RAMESH BAJAJ
Applicant
AND
MAGISTRATE TREVOR DARGE
Respondent
BRIANNA PEKIN
Interested Party
Catchwords:
Review of a magistrate's decision - Jurisdictional error - Residential Tenancies Act - No denial of procedural fairness - Discretion to refuse relief - Proportionality
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | No appearance |
| Interested Party | : | In person |
Solicitors:
| Applicant | : | Not applicable |
| Respondent | : | Not applicable |
| Interested Party | : | Not applicable |
Case(s) referred to in decision(s):
Ashwin v Housing Authority [2019] WASC 144
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Hemmett v Market Direct Group Pty Ltd [2018] WASC 214
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
John v Rees [1970] Ch 345
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Nathanson v Minister for Home Affairs [2022] HCA 26
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357
Re Magistrate T Darge; Ex parte Bajaj [2023] WASC 5
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Saldani v Fujitsu Australia [No 2] [2011] WASC 360
ARCHER J:
Introduction
The applicant, Mr Bajaj, entered into a written residential tenancy agreement with Mr and Ms Pekin (the tenants) in relation to Mr Bajaj's property in Shenton Park. The agreement was for a three‑year period expiring 24 November 2019.
On 6 March 2019, before that period expired, the tenants notified Mr Bajaj that they needed to terminate the lease and that the property would be vacated by 18 April 2019.[1] The tenants vacated the property on that date and paid rent to 21 April 2019. On 13 May 2019, the property was re‑let (at a slightly higher rental rate).
[1] Affidavit of Ramesh Bajaj sworn 8 May 2022 (Applicant's Affidavit) Attachment RB8 page 8. While the pages of the Applicant's Affidavit and accompanying attachments are numbered consecutively, they appear to have been numbered by hand. Where I refer to an attachment of the Applicant's Affidavit, I will refer to the page number of the individual attachment, rather than the page numbers spanning the entire document.
Mr Bajaj brought proceedings in the Magistrates Court claiming compensation of just under $4,000[2] (Claim), pursuant to the Residential Tenancies Act 1987 (WA). The claim comprised two components. First, damage was said to have been caused by the tenants during the course of their tenancy (Damage Component). Second, amounts were said to have been payable by the tenants to Mr Bajaj following their vacation of the premises during the lease term (Tenancy Component).[3]
[2] Applicant's Affidavit Attachment RB1. (The Claim included a component of $2,100 which, it later transpired, Mr Bajaj did not seek. The remaining components totalled $3,971.94.) See also Magistrates Court transcript 28 June 2021 (June 2021 Transcript) pages 7 ‑ 8, and Magistrates Court transcript 27 October 2021 (Trial Transcript) pages 4 and 169 ‑ 170.
[3] Transcript of the learned magistrate's oral reasons given on 9 November 2021 (Magistrate's Reasons) page 3.
The Claim was heard by his Honour Magistrate Darge on 27 October 2021. At the conclusion of the hearing, his Honour reserved his decision and made programming orders for written submissions to be filed. On 9 November 2021, his Honour delivered his decision, awarding Mr Bajaj part of what he had sought in his Claim. His Honour also awarded the tenants part of their disbursements in defending the Claim. His Honour made orders as to how the security bond was to be distributed to reflect those awards (Decision).
Mr Bajaj sought a review order in this Court in relation to the Decision under s 36 of the Magistrates Court Act 2004 (WA) (Review Application). In Re Magistrate T Darge; Ex parte Bajaj (Review Application Decision),[4] I gave reasons for making a limited review order (Review Order).
[4] Re Magistrate T Darge; Ex parte Bajaj [2023] WASC 5 (Review Application Decision).
The Review Order was limited to two specific matters. Both matters related to communications between the Magistrates Court and the tenants. The content of the communications appeared to be innocuous. However, it appeared that Mr Bajaj may not have been privy to those communications. As I noted in the Review Application Decision, this raised the possibility that Mr Bajaj was denied procedural fairness. I said that, on the material currently available to me on the ex parte application, there appeared to be an arguable case that Mr Bajaj was denied procedural fairness in those two respects.
I made orders requiring Mr Bajaj to serve the Review Application Decision, and the orders I made, on the learned magistrate and on Ms Pekin as an interested party.
The learned magistrate filed a notice of intention to abide, save as to costs. Ms Pekin gave notice that she intended to appear. I made orders programming the filing of evidence and submissions and listed the matter for hearing (Review Order Hearing).
Legal framework[5]
Review power
[5] The following summary is largely taken from the Review Application Decision.
Section 36 of the Magistrates Court Act is a statutory judicial review power.[6] Section 36(1) provides:
[6] Rayney v AW [2009] WASCA 203 [27].
(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.
A review order can only be made if the applicant establishes an arguable case that an error of the type identified in s 36(1)(a), (b) or (c) was made. To fall within s 36(1), the error must be either a jurisdictional error,[7] or it must be an error of law on the face of the record.[8]
[7] As to which see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J) and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
[8] Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357. See also Rayney [27] ‑ [34] and Ashwin v Housing Authority [2019] WASC 144 [3] ‑ [9].
In Bajaj v Magistrate Trevor Darge[9] (Bajaj 2021), the Court of Appeal discussed the concept and nature of a jurisdictional error. The Court of Appeal said (citations omitted):[10]
The concept of jurisdictional error was described in the following terms by Hayne J in Re Refugee Review Tribunal; Ex parte Aala:
'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.'
This passage was quoted with approval by the plurality in Kirk v Industrial Court (NSW), and applied by this court in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum.
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.
While the categories are not closed, the following five categories of jurisdictional error in respect of inferior courts and analogous bodies are well established:
'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.'
Another category is where the decision is made in breach of natural justice.
[9] Bajaj v Magistrate Trevor Darge [2021] WASCA 218 (Bajaj 2021). Although involving the same applicant as in this case, the proceedings related to a dispute with different tenants.
[10] Bajaj 2021 [50] ‑ [54].
The procedure for making, and in relation to, an application under s 36(1) is set out in O 56A of the Rules of the Supreme Court 1971 (WA).
If a review order is made, and if at the hearing of the review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, the Court may:[11]
(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 Residential Tenancies Act 1987
[11] Section 36(4) of the Magistrates Court Act.
The Residential Tenancies Act regulates the relationship of lessors and tenants under residential tenancy agreements.
The Magistrates Court has exclusive jurisdiction to determine applications made under the Residential Tenancies Act.[12] By s 14, proceedings under that Act shall be heard and determined wherever practicable within 14 days after they are instituted and, where that is not practicable, as expeditiously as possible. The court hearing the application may proceed in such a manner as it considers best suited to the purposes of the Act.[13] The court is not bound by the rules of evidence.[14]
[12] Section 12A of the Residential Tenancies Act.
[13] Section 20(a) of the Residential Tenancies Act.
[14] Section 21 of the Residential Tenancies Act.
The power to award costs in such matters is governed by s 24 of the Residential Tenancies Act. Section 24 provides:
(1)A competent court hearing proceedings shall not award costs, unless -
(a)all parties to the proceedings were represented by legal practitioners …; or
(b)it is of the opinion that there are special circumstances justifying the award of costs.
(2)Where a party to the proceedings has paid a fee under section 18(1), nothing in subsection (1) is to be taken to prevent a court making an order which requires any other party to the proceedings to pay to the first‑mentioned party the amount of that fee.
By s 26, no appeal lies from a decision under the Residential Tenancies Act. Section 26 also seeks to limit applications under s 36 of the Magistrates Court Act. 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.
On its face, s 26(2) of the Residential Tenancies Act appears to confine the grounds upon which an application can be made under s 36 of the Magistrates Court Act. In Bajaj 2021,[15] the Court of Appeal said it was not necessary to decide whether the principle espoused by the High Court in Kirk v Industrial Court of New South Wales[16] might affect such a construction of s 26(2) of the Act. This was because the Court considered that the appellant's application for leave to appeal could 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.
[15] Bajaj 2021 [49].
[16] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [99] ‑ [100].
It is similarly unnecessary in this case. The Review Order I made was limited to jurisdictional error arguably arising from a denial of procedural fairness.
The Magistrates Court proceedings[17]
The Claim
[17] The following summary is largely taken from the Review Application Decision.
In the Tenancy Component of his Claim, Mr Bajaj claimed:
(a)the cost of advertising for the re‑letting of the property;
(b)a portion of a water bill; and
(c)rent from the date on which the tenants had ceased to pay (21 April 2019) to the date on which it was re‑let (13 May 2019), a period of three weeks.
The amounts awarded
In relation to the advertising costs, the magistrate awarded a small part of the amount Mr Bajaj sought.[18]
[18] Magistrate's Reasons pages 5 and 9.
The magistrate awarded Mr Bajaj one week of rent in the sum of $525.
Based on his finding that one week's rent was appropriate, the magistrate awarded Mr Bajaj $35.47 in respect of the water bill.
In total, and including the Damage Component findings, the magistrate found that Mr Bajaj was entitled to the sum of $1,371.29.[19]
The costs decision
[19] Magistrate's Reasons page 11.
Both Mr Bajaj and the tenants sought costs against the other party in the Magistrates Court proceedings.
The magistrate did not expressly state that s 24 of the Residential Tenancies Act was the applicable provision. However, his Honour demonstrated his close familiarity with the provisions of the Residential Tenancies Act and the minor cases procedure throughout the proceedings. Further, in her closing submissions, Ms Pekin set out the requirements of s 24.[20] I infer that his Honour was referring to s 24(1)(a) of the Residential Tenancies Act when he said that he did 'not consider it's appropriate … for either party to get their legal costs … as they did not appoint independent lawyers to conduct [the] case on their behalf'.[21]
[20] See the Applicant's Affidavit Attachment RB20 page 7.
[21] Magistrate's Reasons page 9.
The magistrate did, however, consider it was appropriate to award to the tenants their disbursements. His Honour ordered Mr Bajaj pay $829.15 in costs to Ms Pekin, representing her travelling and stationery costs. His Honour said that he considered it appropriate to make this order because the expenses had been incurred after the tenants had made an offer to Mr Bajaj in an amount that exceeded his Honour's award.[22]
[22] Magistrate's Reasons pages 9 - 10.
The magistrate made no allowance for Ms Pekin's lost wages.[23]
[23] Magistrate's Reasons pages 10 - 11.
Decision
His Honour made orders as to how the security bond was to be distributed to reflect the amount he had awarded Mr Bajaj as part of his Claim and the amount he had awarded the tenants for disbursements incurred in defending the Claim.
The Application
Mr Bajaj's Review Application set out what were described as nine grounds.
In the Review Application Decision, I noted that Mr Bajaj had advised that he was a lawyer with a current practising certificate.[24] Despite this, I noted that it was difficult to discern the substance of the complaints in his Review Application.[25]
[24] ts 11.
[25] Review Application Decision [40].
I further noted that Mr Bajaj had sought orders remitting his application to the Court of Appeal, which I referred to as his 'Appeal Application'. I explained why the Appeal Application was misconceived.[26]
[26] Review Application Decision [41] ‑ [58].
The Review Application Decision
In the Review Application Decision, I found that, interpreted generously, ground 5 of the Review Application could be said to raise two arguable instances of a denial of procedural fairness.[27]
[27] Review Application Decision [115] ‑ [132].
I found that there was no merit in any of the other grounds.[28] In my Review Application Decision, I explained why. It is unnecessary to repeat the explanation.
[28] Review Application Decision [79], [82], [102], [134], [144], [146] and [157].
As noted earlier, after being notified of the Review Application Decision, the learned magistrate filed a notice of intention to abide, save as to costs. Ms Pekin gave notice that she intended to appear. I made orders programming the filing of evidence and submissions. I listed the Review Order Hearing to occur on 25 May 2023.
Both Mr Bajaj and Ms Pekin filed submissions and affidavits.
Mr Bajaj's submissions
Mr Bajaj's submissions (Final Hearing Submissions)[29] were difficult to understand and largely misconceived. Further, given the limited nature of the Review Order, the submissions were almost entirely irrelevant. In particular, the submissions repeated, at length, many submissions that I had rejected in the Review Application Decision.
[29] Submissions (Amended) for a Final Review Order Hearing filed 24 April 2023 (Final Hearing Submissions).
To the extent that his Final Hearing Submissions dealt with the matters covered by the Review Order, many did nothing more than reiterate the arguable failures to accord procedural fairness the subject of the Review Order and refer to the need for a magistrate to accord procedural fairness.[30] To the extent that his Final Hearing Submissions went beyond this, the submissions were intertwined with submissions that I had previously rejected in the Review Application Decision.
[30] See Final Hearing Submissions [14] ‑ [16], [21] ‑ [22] and [29].
To the extent that Mr Bajaj made relevant submissions, these are best explained by simply recording what he said:[31]
Materially, the affidavit evidence by the interested party (in the affidavit affirmed 8 March 2023) is a material fact that the plaintiff was not privy to the correspondence nor in costs communication between the Magistrates Court and the interested party. The plaintiff submits that upon the Magistrates Court, liaising with interested party, that the Magistrates Court to have encouraged the presentation of the documents for consideration by the Presiding Magistrate, prior to first hearing on 29 April 2021 by the absence of the knowledge of the plaintiff, and similarly invitation on documents for cost, very narrowly prior to the hearing and a reserved judgment to be delivered on 9 November 2021. The plaintiff was given, no opportunity or be invited to make otherwise submissions, or be heard and to present a case, upon an outcome likely to be adverse (amidst the extraneous material from the interested party) on the interest of the plaintiff and disregard of the application of cause of action in the proceedings by the plaintiff and the abuse of process. The plaintiff further submits in absence of the first correspondence and the communication between the Magistrates Court and the interested party, that the Magistrates Court had dealt with the application for the claim of residential tenancy proceeding, likewise other proceedings on a minor case dealt under the rules procedures under the RTA to determine and assess on claim of compensation in loss and damages. However, the legislation being silent in the case for a breach of residential tenancy agreement in the event of a fixed term residential tenancy agreement, the issue that repeatedly arises and the court's arbitrarily decide upon the outcome that is not in accordance with law, or that directions be sought of the superior courts in assessing on claims at dispute on a very crucial and important subject of the general public concern, or public interest of a repute in administration of justice.
[31] Final Hearing Submissions [28].
Mr Bajaj's oral submissions in the Review Order Hearing did not advance his position.[32]
[32] See, in particular, ts 89 ‑ 90 and 100 ‑ 101.
Mr Bajaj's Final Hearing Submissions also addressed whether, if jurisdictional error was found, the court should decline to order relief. However, he did so based on alleged jurisdictional errors that were the subject of grounds I had found to be without merit in the Review Application Decision.[33] In his oral submissions in the Review Order Hearing, Mr Bajaj contended that, if jurisdictional error was found, relief should be granted because his Claim had never actually been heard in the Magistrates Court.[34]
[33] See Final Hearing Submissions [14] ‑ [15].
[34] ts 94 ‑ 95. See also ts 98.
The first arguable denial of procedural fairness - the correspondence
In the Review Application Decision, I noted that it appeared that Ms Pekin had sent to the court copies of the correspondence between the parties prior to the first hearing before the magistrate.[35] I referred to this material as the 'Correspondence'.
[35] Review Application Decision [98], citing Applicant's Affidavit Attachment RB26 page 9.
In the Review Application, Mr Bajaj alleged that the magistrate's acceptance of the Correspondence constituted an abuse of process. I did not accept this.[36] However, I said:[37]
I have previously commented on how difficult it is to discern the substance of Mr Bajaj's grounds. Mr Bajaj did not appear to assert that he was denied procedural fairness in relation to the Correspondence. However, Mr Bajaj undoubtedly complained about the Correspondence. Further, Mr Bajaj implicitly asserted that he had not been privy to that communication. In my view, it is appropriate that I treat ground 5 as including an allegation that Mr Bajaj was denied procedural fairness in relation to the Correspondence.
Under the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA), a person served with an application (respondent) must, at least three working days before the hearing of the application, lodge and serve a response stating whether the respondent consents or objects to each order sought in the application. Unless the respondent consents to every order sought, an affidavit must also be provided. The response must be in the 'approved form'.
It seems likely that the Correspondence was contained within a response by the tenants. However, Mr Bajaj did not include any such response in his 881 page affidavit. Nor does he refer to such a response having been filed in the body of his affidavit.
If, however, the magistrate received Correspondence from the tenants that was not made available to Mr Bajaj, this could have constituted a denial of procedural fairness, depending on the circumstances.
On the limited information available to me on this ex parte application, it is arguable that there was a denial of procedural fairness. It is appropriate to make a review order in relation to whether there was a denial of procedural fairness in relation to the Correspondence.
[36] Review Application Decision [98]. See also [115] ‑ [116].
[37] Review Application Decision [117] ‑ [121].
Ms Pekin's affidavit explained the relevant facts in relation to the Correspondence.[38] In short, after receiving notice of the Claim from the Magistrates Court, Ms Pekin sought procedural advice from the registry of that court. She received an email response from a Customer Service Officer of the Magistrates Court on the day of the first hearing, 29 April 2021. The response concluded by asking that she '[p]lease respond to this email with any documents you wish to rely upon at the hearing and they will be provided to the presiding Magistrate'.[39] In response to this request, Ms Pekin sent, by reply email, emails between the parties and text messages she had sent to Mr Bajaj in relation to the tenancy.[40]
[38] Affidavit of Brianna Margaret Pekin filed 7 March 2023 (Pekin Affidavit) [3] ‑ [17].
[39] Pekin Affidavit [10] and Annexure C-BP.
[40] Pekin Affidavit [11] and Annexure C-BP.
Later that year, and well prior to the Magistrates Court trial, Ms Pekin filed in the Magistrates Court a 'Statement of Intended Evidence' (Statement). This included all of the Correspondence. Ms Pekin's Statement was served on Mr Bajaj and formed part of her evidence at trial.[41]
[41] Pekin Affidavit [17].
Therefore, prior to the Magistrates Court trial, Mr Bajaj had been provided with the Correspondence. He was able to challenge or contextualise the Correspondence in cross‑examination or by adducing evidence of his own.
In those circumstances, there was no denial of procedural fairness in relation to the Correspondence.
The second arguable denial of procedural fairness - the costs documentation
In the Review Application Decision, I noted that Mr Bajaj had complained about a communication between the Magistrates Court and Ms Pekin in relation to costs, to which it appeared Mr Bajaj was not a party.[42] As to this, I said:[43]
Mr Bajaj did not raise this in the context of a denial of procedural fairness. However, I again consider that it is appropriate that I treat ground 5 as including an allegation that Mr Bajaj was denied procedural fairness in relation to the costs communication.
The magistrate gave the parties leave to file submissions after the hearing, and both parties did so. Ms Pekin's submissions were filed on 4 November 2021. Ms Pekin's submissions sought costs, including the costs of travel, stationery and salary, in a total of $4,522.07. The submissions said that the items could be particularised further.[44]
It appears that an officer of the Magistrates Court emailed Ms Pekin on the morning of the Decision asking her to send copies of the invoices and/or vouchers underlying the disbursements she had claimed, which she did.[45] I will refer to this material as 'the Costs Documentation'.
Mr Bajaj does not appear to have been copied into this exchange.
I am conscious of the fact that this is an ex parte application, and I do not know whether Mr Bajaj was provided with the Costs Documentation externally to the email exchange. Nevertheless, on a review order, all that needs to be shown is an arguable case of jurisdictional error.
In my view, it is arguable that there was a denial of natural justice in relation to the Costs Documentation.
The facts
[42] Review Application Decision [122].
[43] Review Application Decision [123] ‑ [128].
[44] Applicant's Affidavit Attachment RB20 page 9.
[45] Applicant's Affidavit Attachment RB23 pages 2 ‑ 3.
During the first hearing in the Magistrates Court, on 29 April 2021, Ms Pekin advised that, if the matter was not resolved, she would have to travel to Perth for the trial because of the volume of material that was filed and the content of the email correspondence.[46]
[46] Magistrates Court transcript 29 April 2021 (April 2021 Transcript) page 26.
Accordingly, prior to the Magistrates Court trial on 27 October 2021, Mr Bajaj knew that Ms Pekin would travel to Perth if the matter proceeded to hearing and that she would incur costs.
At the conclusion of the trial, his Honour reserved his decision to 2.15 pm on 9 November 2021 and made programming orders for written submissions to be filed by 4 November 2021. Both parties filed written submissions on that date. I will refer to these submissions as their 'Magistrates Court Submissions'. It appears that Mr Bajaj received Ms Pekin's Magistrates Court Submissions on or about the day they were filed.[47]
[47] Applicant's Affidavit Attachment RB20 page 9.
In Ms Pekin's Magistrates Court Submissions, she gave notice of her intention to claim costs. She wrote that her claim for costs included travel, stationery and salary and totalled $4,522.07. She said that those items could be 'particularised further'.[48]
[48] Applicant's Affidavit [23].
Accordingly, prior to the date on which the magistrate's decision was to be delivered, Mr Bajaj knew that Ms Pekin claimed, among other things, travel and stationery costs.
In his Magistrates Court Submissions, Mr Bajaj claimed costs against Ms Pekin.
At 1.54 pm on 9 November 2021, shortly before the decision was due to be handed down, a Customer Services Officer from the Perth Magistrates Court emailed Ms Pekin:[49]
The presiding Magistrate has requested copies of any invoices and/or vouchers in respect of your application for costs.
If you could please respond to this email directly and attach any relevant invoices/vouchers for the Magistrate's consideration for the hearing today.
[49] Pekin Affidavit [22] and pages 83 ‑ 84.
At 2.22 pm, as the matter was being called, Ms Pekin responded, attaching the receipts and invoices that were available to her at such short notice, which I refer to as the 'Costs Documentation'.[50]
[50] Pekin Affidavit [23] and page 83.
Once the matter was called, his Honour delivered oral reasons explaining the amounts he would award in relation to each component of Mr Bajaj's Claim. His Honour found that, in total, Mr Bajaj was entitled to the sum of $1,371.29.[51]
[51] Magistrate's Reasons page 11.
His Honour then moved to the question of costs, noting that each side had claimed costs.
His Honour explained why he rejected Mr Bajaj's claim for costs.[52] As to Ms Pekin's claim, his Honour said he considered it appropriate to award her disbursements:[53]
I do consider it appropriate in respect of the tenants to award the disbursements in respect of the costs of both attending the trial by way of the airfares and also in respect of other associated disbursements incurred after 3 December, I think - or at least December 2019 - when the offer was made by the tenants to the lessor to pay over the bond, given that my eventual finding is for a sum less than the security bond amount.
[52] Magistrate's Reasons page 9.
[53] Magistrate's Reasons pages 9 ‑ 10.
His Honour noted that he had asked for vouchers in respect of those costs. His Honour inquired as to whether there were any accommodation costs. Ms Pekin said there were not, as she had been able to stay with a family member. His Honour said he considered that Mr Bajaj should pay the costs of the airfares and any expenses that Ms Pekin had incurred in relation to the provision of the documents to the court.[54]
[54] Magistrate's Reasons page 10.
His Honour then arranged for a copy of the Costs Documentation to be given to Mr Bajaj.[55]
[55] Magistrate's Reasons page 10. Mr Bajaj confirmed this in these proceedings - see ts 71.
His Honour then discussed with Ms Pekin the documents which showed the airfares had been $452.70 and the stationery items $204.15. His Honour asked if there had been any other expenses. Ms Pekin said that the costs of taxis and Ubers had been $172.30. The total of all of these costs was $829.15. His Honour said he would not award Ms Pekin her lost salary.[56]
[56] Magistrate's Reasons pages 10 ‑ 11.
His Honour invited Mr Bajaj to comment on any inaccuracies in the calculations and asked if he agreed with them. Mr Bajaj said 'I have nothing to say at the moment'.[57]
Was there a denial of procedural fairness?
[57] Magistrate's Reasons pages 11 ‑ 12.
During the hearing on 9 November 2021, his Honour did not expressly give Mr Bajaj the opportunity to comment on whether the travel costs and disbursements claimed by Ms Pekin in her Magistrates Court Submissions should be awarded. Further, his Honour did not expressly give Mr Bajaj the opportunity to comment on the Costs Documentation themselves. The magistrate did not expressly ask Mr Bajaj if he challenged the veracity of the documents or contended that the quantum of the costs was excessive.
If we lived in a world where court resources were unlimited (and the time cost to other parties was ignored), it would be arguable that the magistrate ought to have expressly invited Mr Bajaj to comment on these issues. However, we do not live in such a world.
The content of the obligation to accord procedural fairness, and whether the obligation has been breached, will always depend on the circumstances.
The Claim was required to be dealt with as a minor case in the Magistrates Court.
Mr Bajaj had had the opportunity to make written submissions as to costs. He had received Ms Pekin's Magistrates Court Submissions in which she claimed costs. He was provided with the Costs Documentation during the hearing on 9 November 2021. Further, over the course of the proceedings, Mr Bajaj had demonstrated to the magistrate that he did not need an express invitation before he would make submissions. Mr Bajaj had demonstrated he would make submissions whenever he had something to say. The magistrate was also aware that Mr Bajaj had a practising certificate. There was nothing preventing Mr Bajaj from rising to make submissions as to Ms Pekin's disbursements.
Further, the magistrate did expressly ask Mr Bajaj if he agreed with the calculations. Mr Bajaj declined to say.
In all the circumstances, I am not satisfied that there was a denial of procedural fairness. In any event, as will be seen, I would have declined to grant relief.
Was any denial material?
In case I am wrong about there not having been a denial of procedural fairness, I will discuss whether such a denial would have been material.
Ms Pekin submits that, if there was a denial of procedural fairness, it would not have been material. However, it would only not have been material if there was no realistic possibility that the costs decision could have been different if Mr Bajaj had expressly been given the opportunity to make submissions.[58]
[58] Nathanson v Minister for Home Affairs [2022] HCA 26 [32] ‑ [33] (Kiefel CJ, Keane & Gleeson JJ).
In Nathanson v Minister for Home Affairs, Kiefel CJ, Keane and Gleeson JJ said (citations omitted):[59]
As explained in MZAPC, the materiality of a breach requires consideration of 'the basal factual question of how the decision that was in fact made was in fact made'. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with 'as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined'. The burden falls on the plaintiff to prove 'on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition'.
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of 'reasonable conjecture' is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive 'story' of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, 'reasonable conjecture' does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of 'reasonable conjecture', correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
[59] Nathanson [32] ‑ [33] (Kiefel CJ, Keane & Gleeson JJ). See also Gageler J at [46] ‑ [47], [50] ‑ [51], [55] and [59].
From this, it is apparent that it would be a rare case in which a court would not be satisfied that there was a realistic possibility that a decision‑making process could have resulted in a different outcome where there was a denial of procedural fairness.
This may be such a rare case. Even if Mr Bajaj might have responded to an express invitation, it is very difficult to conceive of something he might have said that might have made a difference. Nevertheless, had I found that there had been a denial of procedural fairness, I would have been reluctant to find that it was not material. '[T]he path of the law is strewn with examples of open and shut cases which, somehow, were not; … of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change'.[60]
Discretion to refuse relief
[60] Ex parte Aala [81], quoting John v Rees [1970] Ch 345, 402, and cited by Gageler J in Nathanson [50].
Ms Pekin submits that, even if there was a denial of procedural fairness, and even if it was material, relief should be refused on discretionary grounds.[61]
[61] Submissions of the Interested Party for Review Order Hearing filed 22 April 2023 (Pekin's Submissions).
In Hemmett v Market Direct Group Pty Ltd,[62] Vaughan J[63] said (citations omitted):
An application for a review order may be refused on discretionary grounds. So too may the making of any final order under s 36(4). For example, an application might be refused on the ground of proportionality, where the order would lack any utility or because there are available appeal avenues. So too where there has been delay (although there is no time limit on the making of an application for a review order) or the review order may fragment criminal proceedings. However, discretionary reasons will only justify refusal of a review order in an 'exceptional' case.
[62] Hemmett v Market Direct Group Pty Ltd [2018] WASC 214 [41].
[63] As his Honour then was.
Ms Pekin submits, among other things:[64]
The Applicant has wasted a significant amount of the court's time and my time on this matter, and continues to file meritless applications without seeking any legal advice.
The Interested Party maintains that the Applicant makes vexatious applications and has a blatant disregard for valuable court resources and causes unnecessary stress and trauma to his tenants, in order to gain 'legal experience'.
The Interested Party submits that this matter should come to an end as it has been more than four years since the property was vacated and the lease ended.
[64] Pekin's Submissions [41(d)-(f)].
Mr Bajaj's conduct in relation to other applications and other tenants is not relevant. However, Ms Pekin's concerns as to the use of court time (and her own) are relevant to proportionality. During the hearing, Ms Pekin confirmed that she contended that relief should be refused on the grounds of proportionality.
Mr Bajaj's Claim sought a total of $3,971.94.[65] As it was a claim under the Residential Tenancies Act for an amount less than $10,000, it was required to be dealt with as a minor case.[66]
[65] Applicant's Affidavit Attachment RB1. The Claim had initially included an additional component of $2,100 which, it later transpired, Mr Bajaj did not seek. See also June 2021 Transcript pages 7 - 8, and Trial Transcript pages 4 and 169 ‑ 170.
[66] See s 12 and s 12A of the Residential Tenancies Act and the Review Application Decision [61] ‑ [76].
The first hearing on 29 April 2021 took over an hour.[67] A hearing on 28 June 2021 also took over an hour.[68] A hearing on 22 October 2021 took over half an hour.[69]
[67] Applicant's Affidavit Attachment RB26.
[68] Applicant's Affidavit Attachment RB25.
[69] Applicant's Affidavit Attachment RB18.
The Magistrates Court trial, on 27 October 2021, commenced at 10.11 am and ran through until 5.22 pm, reflected in 212 pages of transcript.[70] The magistrate's Decision was delivered on 9 November 2021.[71]
[70] Applicant's Affidavit Attachment RB17.
[71] Applicant's Affidavit Attachment RB24.
Given the nature of the Claim, the amount of time it absorbed in the Magistrates Court is extraordinary. Ms Pekin's submission is, in effect, that the time required was greatly increased by meritless arguments and applications advanced by Mr Bajaj in the Magistrates Court. Having reviewed the transcript of the Magistrates Court proceedings, there is much force in Ms Pekin's submission.[72] It is, however, unnecessary to consider this further and I put it aside. For the purposes of determining whether, if there had been a material denial of procedural fairness, relief should be refused, I would simply take into account the fact that the Claim absorbed a great deal of time in the Magistrates Court.
[72] See as an apparent example of misconceived and meritless arguments, Review Application Decision [86] ‑ [87] and [137] ‑ [142] and the Trial Transcript pages 3 ‑ 20. As an example of apparently irrelevant evidence under cross‑examination, see the Trial Transcript pages 41 ‑ 45. As an example of apparently irrelevant cross‑examination by Mr Bajaj, see the Trial Transcript pages 170 ‑ 173.
The learned magistrate fully dealt with Mr Bajaj's Claim on the merits.[73] The magistrate awarded Mr Bajaj $1,371.29. This was substantially less than the offer that the tenants had made in March 2020 of $2,100.[74]
[73] Cf Saldani v Fujitsu Australia [No 2] [2011] WASC 360 [122].
[74] Pekin Affidavit page 10. See also April 2021 Transcript page 8 and June 2021 Transcript page 8.
The learned magistrate ordered that Mr Bajaj pay Ms Pekin's travel costs for airfares ($452.70) and taxis and Ubers ($172.30), and stationery ($204.15), being a total of $829.15. It was entirely reasonable for Ms Pekin to attend the Magistrates Court trial in person. In addition, Mr Bajaj knew, prior to the trial, that Ms Pekin would travel to Perth if the matter proceeded to trial and that she would incur costs. Further, Mr Bajaj knew, prior to the trial, that Ms Pekin claimed, among other things, travel and stationery costs.
In my view, this is an exceptional case in which it would be appropriate to refuse relief, even if there had been a material denial of procedural fairness. Mr Bajaj's Claim has been determined on its merits. Many court hours were expended in doing so. Given the outcome, and the offer that had been made, it is not surprising that Mr Bajaj was ordered to pay Ms Pekin's costs. Mr Bajaj was fortunate that Ms Pekin did not incur accommodation costs. Her travel and stationery costs were modest. To quash the order that Mr Bajaj pay Ms Pekin's costs of $829.15 and remit the question of her costs to the Magistrates Court to expressly give Mr Bajaj the opportunity to be heard would be entirely inconsistent with proportionality.
Conclusion
For these reasons, the Review Application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Judge
6 JUNE 2023
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