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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 184
Decision Date

CaseChat Overview and Summary

Bajaj v Magistrate Trevor Darge [No 2] involved a claim by Mr Bajaj against the tenants. The nature of the dispute was the distribution of a security bond and the associated costs. The case was heard by his Honour Magistrate Darge, who reserved his decision and subsequently awarded Mr Bajaj and the tenants part of their respective claims and disbursements. Mr Bajaj sought a review of this decision under the Magistrates Court Act 2004 (WA). The review was limited to specific communications between the Magistrates Court and the tenants that Mr Bajaj may not have been privy to, raising concerns about procedural fairness.

The legal issues that arose from this case involved the interpretation of section 36 of the Magistrates Court Act 2004 (WA) and whether the communications between the Magistrates Court and the tenants amounted to a denial of procedural fairness to Mr Bajaj. The court had to determine if the communications were significant enough to warrant a review and if Mr Bajaj's procedural rights were indeed affected.

In addressing these issues, the court considered the content of the communications and their potential impact on the fairness of the proceedings. The court concluded that the communications appeared to be innocuous but acknowledged the possibility that Mr Bajaj was denied procedural fairness due to not being privy to them. Based on the available material, the court found an arguable case for procedural unfairness and proceeded with a limited review. The court made orders for Mr Bajaj to serve the Review Application Decision and the related orders on the magistrate and an interested party, Ms Pekin. The magistrate indicated an intention to abide with the review order except regarding costs, while Ms Pekin indicated an intention to appear.

The final orders included the requirement for Mr Bajaj to serve the Review Application Decision and the court's orders on the parties involved. The court also programmed the filing of evidence and submissions and listed the matter for a hearing to further address the concerns raised by the review application. This case underscores the importance of procedural fairness and the role of judicial review in ensuring that all parties have an opportunity to participate fully in legal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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). 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.

Ratio Decidendi

Legal Principle Established

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