Bajaj v Pekin - [2024] WASCA 55

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BAJAJ -v- PEKIN [2024] WASCA 55
CORAM:   VAUGHAN JA
VANDONGEN JA
LUNDBERG J

HEARD:   8 MARCH 2024
DELIVERED          :   17 MAY 2024
FILE NO/S:   CACV 72 of 2023
BETWEEN:   RAMESH BAJAJ
Appellant
AND
BRIANNA PEKIN
Respondent

ON APPEAL FROM:
For File No:   CACV 72 of 2023
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ARCHER J
Citation: BAJAJ -v- MAGISTRATE TREVOR DARGE [No 2] [2023] WASC 184
File Number            :   CIV 1448 of 2022

Catchwords:

Appeal - Review order application against a Magistrate's decision made under the Residential Tenancies Act 1987 (WA) - Limited ex parte review order made by Judge as to arguable denials of procedural fairness in the proceedings before the Magistrate - Communications between the tenants and the Court that were not copied to the appellant - Review order application ultimately dismissed by the Primary Judge - No denial of procedural fairness and in any event discretion to grant relief would have been withheld on grounds of proportionality

Appeal - Broad assertions on appeal as to denial of procedural fairness on the part of the Magistrate and by the Primary Judge on review - Broad assertion as to actual and apprehended bias - Appeal grounds and submissions unclear - No discernible error in the approach and conduct of the Primary Judge - No merit in the grounds of appeal - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), pt 4
Magistrates Courts Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 12, s 12A
Rules of the Supreme Court 1971 (WA), O 55, O 56A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

Case(s) referred to in decision(s):

Armet v Stephen Browne [2024] WASCA 44
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Bajaj v Magistrate Trevor Darge [No 2] [2023] WASC 184
Hemmett v Market Direct Group Pty Ltd [2018] WASC 214
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
Re Magistrate T Darge; Ex parte Bajaj [2023] WASC 5
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360

Table of Contents

Contents

Vaughan JA............................................................................................................................... 5

Vandongen JA........................................................................................................................... 7

Lundberg J

Introduction

Primary Reasons

The Correspondence

The Costs Documentation

Further matters addressed by the Primary Judge

Grounds of appeal

Conduct of the appeal hearing

Disposition ‑ Ground 1

Denial of procedural fairness

Proportionality

Disposition ‑ Ground 2

Disposition ‑ Ground 3

Conclusion and orders

ATTACHMENT A Chronology of Primary Events

VAUGHAN JA:

I have the considerable advantage of having read Lundberg J's reasons for decision in draft. I agree with Lundberg J's reasons for dismissing the appeal. I also agree with Lundberg J's proposed orders. There are, however, two…

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: [2024] WASCA 55
Decision Date: 17 MAY 2024

CaseChat Overview and Summary

In Bajaj v Pekin, the appellant, Bajaj, appealed against a decision of the Primary Judge to dismiss his application for a review of a decision made by a Magistrate under the Residential Tenancies Act 1987 (WA). The proceedings involved a dispute between Bajaj and his tenants, Pekin, over the conduct of proceedings in the Magistrates Court and the review of that conduct by the Supreme Court. The central issue before the court was whether the Primary Judge erred in dismissing the appellant's application for a review of the Magistrate's decision on the grounds of procedural fairness and proportionality. Specifically, Bajaj argued that the Magistrate had failed to provide him with procedural fairness by not copying him on communications between the tenants and the Court, and that the Primary Judge should have granted relief on discretionary grounds.

The court examined the grounds of appeal, which were broad and unclear, asserting denial of procedural fairness and actual and apprehended bias by both the Magistrate and the Primary Judge. The court found that the Primary Judge had correctly identified that only two of the appellant's complaints were arguable, both concerning procedural fairness. The court then reviewed the Primary Judge's reasons, which carefully examined whether there had been any practical injustice to Bajaj from the course of the proceedings in the Magistrates Court. The court concluded that Bajaj had ample opportunity to address the substance of the material in question during the hearings, and thus no procedural unfairness had occurred. The court also found that the Primary Judge's refusal of relief on discretionary grounds, based on the concept of proportionality, was not an essential aspect of her reasoning given the conclusion that no procedural unfairness had been demonstrated.

The appeal was ultimately dismissed. The court held that Bajaj had failed to demonstrate any discernible error in the approach and conduct of the Primary Judge, and that the grounds of appeal had no merit. The court found that the Primary Judge's decision to dismiss the application for review was correct, as there had been no denial of procedural fairness and the discretion to grant relief would have been withheld on grounds of proportionality. The appeal was thus dismissed with no orders for costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Review Application raised nine wide‑ranging complaints about the conduct of the proceedings before the Magistrate. Following an ex parte hearing before the Primary Judge, held pursuant to O 56A r 3(1) of the Rules of the Supreme Court 1971 (WA) (RSC), her Honour formed the view that only two of the appellant's complaints were arguable, both of which asserted a denial of procedural fairness. The complaints related to two particular occasions on which communications passed from the tenants to the Magistrates Court, to which the appellant had not been privy. I refer to her Honour's decision (Ex parte Review Decision)[12] and the limited review order made on 20 January 2023 pursuant to O 56A r 3(2)(b) RSC (Ex parte Review Order). There was no appeal to this Court against the Ex parte Review Order. [12] Re Magistrate T Darge; Ex parte Bajaj [2023] WASC 5. A final hearing of the Review Application was then scheduled, pursuant to O 56A r 5(1) RSC, in respect of which the Magistrate filed a notice of intention to abide[13] and the tenant indicated her intention to resist the relief sought by the appellant.[14] [13] GAB 1115.[14] GAB 1119. Throughout the proceedings in the Magistrates Court and in the Supreme Court, the appellant, who holds a practising certificate, represented himself. The tenant, who is a practising lawyer in this State, appeared on her own behalf. In the result, the Primary Judge dismissed the application (Dismissal Order).[15] The present appeal is against that Dismissal Order. The appellant has continued to represent himself on this appeal. The tenant has not taken any active part in the appeal.[15] BAB 1. For the following reasons, I am of the view the appeal should be dismissed. As will be seen, the appeal grounds are difficult to understand. On any view of those grounds, it is unnecessary to set out or examine the complete details of the dispute between the parties or the full history of the proceedings in the Magistrates Court.[16] I will therefore commence the analysis with an examination of the Primary Judge's reasons (Primary Reasons).[17][16] To provide some context, a chronology of primary events is included as Attachment A.[17] Bajaj v Magistrate Trevor Darge [No 2] [2023] WASC 184. In her reasons, the Primary Judge traversed the background to the proceedings, the legislative framework, and her Ex parte Review Decision. The Primary Judge then separately addressed the facts surrounding the communications involving the tenant and the Court, and considered whether a denial of procedural fairness had been shown, whether it was material, and then lastly considered whether in any event the discretion should be exercised to grant relief. As the Primary Judge did, I will refer to the communications in question as the Correspondence and the Costs Documentation. The first occasion on which communications were exchanged with the Court without copying the appellant took place on 29 April 2021. As explained below, on that occasion, the tenant sent an email to the Magistrates Court which attached copies of correspondence which had earlier passed between the parties prior to the first hearing before the Magistrate.

Ratio Decidendi

Legal Principle Established

The true issue for consideration by the Primary Judge was the content of the obligation to afford procedural fairness in the context of the Magistrate Court proceedings. It has often been said that fairness is a practical rather than an abstract concept, and the concern of the law is to avoid practical injustice.[42] What is required by procedural fairness is a fair hearing, not a fair outcome, such that the relevant focus is to enquire as to the decision‑maker's processes, rather than its actual decision.[43][42] For example, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] - [38] (Gleeson CJ).[43] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 - 36 (Brennan J). The Primary Judge carefully examined whether there had been any practical injustice to the appellant from the course of the Magistrate Court proceedings. As her Honour found, in relation to both the Correspondence and the Costs Documentation, there was a strong basis to conclude that, although the appellant was not immediately given notice of the material when it was provided to the Court, the appellant had ample opportunity during the hearings in question to address the Magistrate on the substance of that material. Nothing further has been identified on appeal to cast doubt on the Primary Judge's assessment in this regard. In my view, no error has been demonstrated in the reasoning and the conclusion of the Primary Judge at [42] ‑ [47] in relation to the Correspondence, and at [48] ‑ [70] in relation to the Costs Documentation. Accordingly, to the extent to which the first ground of appeal was intended to capture a direct challenge to the Primary Judge's conclusions as to whether there was a denial of procedural fairness by the Magistrate, it should be rejected. To the extent to which this ground embodies a challenge to the aspect of the Primary Reasons concerning the refusal of relief on discretionary grounds, it should similarly be rejected. Her Honour addressed this issue given the tenant had made submissions directed to the point. The tenant asserted that the application for a review order could be refused on the grounds of proportionality, relying on the observations of Vaughan J (as his Honour then was) in Hemmett v Market Direct Group Pty Ltd.[44] [44] Hemmett v Market Direct Group Pty Ltd [2018] WASC 214 [41]. In the Primary Reasons, the Primary Judge recognised that the refusal of an application for a review order could be dismissed on discretionary grounds, albeit only in exceptional cases. Her Honour concluded that this was an exceptional case, for the reasons set out at [80] ‑ [85] of the Primary Reasons. However, it is unnecessary to explore this aspect of ground 1 any further given the earlier conclusions made by her Honour (with which I agree) that there had been no denial of procedural fairness. The Primary Judge's treatment of the proportionality discretionary issue was thus not an essential aspect of her reasoning in making the Dismissal Order.