Bajaj v Pekin
[2024] WASCA 55
•17 MAY 2024
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 additional matters that I wish to address.
First, in relation to ground 1, it is unclear whether the appellant challenges the proposition that it is possible to refuse relief at a final hearing under s 36(4) of the Magistrates Court Act 2004 (WA) as a matter of discretion. It appears that the appellant does challenge this proposition insofar as he refers to a 'right of … final relief to set aside' a Magistrates Court order made in circumstances where there was a denial of procedural fairness.[1]
[1] Appellant's submissions par 1.1 WAB 13.
On one level this issue does not matter to the proper disposition of the appeal. Lundberg J has explained why the primary judge was correct to conclude that there was no denial of procedural fairness in the Magistrates Court proceedings. There being no denial of procedural fairness the question of relief does not arise. That said, I adhere to the view I expressed in Hemmett v Market Direct Group Pty Ltd[2] - the making of a final order under s 36(4) may be refused on discretionary grounds (although discretionary reasons will only justify refusal in an 'exceptional' case). The use of the word 'may' in s 36(4) imports a discretion.[3] The observations of Corboy J in Saldanha v Fujitsu Australia Ltd [No 2][4] also support the view I expressed in Hemmett v Market Direct Group Pty Ltd.
[2] Hemmett v Market Direct Group Pty Ltd [2018] WASC 214 [41].
[3] Interpretation Act 1984 (WA) s 56(1).
[4] Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 [115].
The primary judge would have refused relief even if there had been a material denial of procedural fairness.[5] There was no allegation of discretionary error in this respect. In the absence of any such assertion of discretionary error the appeal in this court can only succeed if the appellant establishes ground 3.
[5] Bajaj v Magistrate Trevor Darge [No 2] [2023] WASC 184 [86].
Second, in relation to ground 3, the appellant alleges a denial of procedural fairness and actual or apprehended bias on the part of the primary judge. Among other things the appellant relies on an email exchange between the respondent and the court on 14 and 15 February 2023 which was not copied to him at the time the emails were first sent. The appellant also refers, more generally, to other email communications involving the primary judge's associate, the appellant and the respondent.
It is a serious matter to allege that a judge has acted in a way that is procedurally unfair. Even more so it is a serious matter to allege that a judge was activated by actual bias. In the context of ground 3 there was no proper basis for either allegation ‑ or for the allegation of reasonably apprehended bias. Relevantly:
1.The email exchange of 14 and 15 February 2023 was initiated by the respondent and involved a counter coordinator at the Central Office of the Supreme Court rather than the primary judge's associate.
2.The associate to the primary judge, in responding to the respondent, included the appellant in the email exchange ‑ this included providing the appellant with the whole of the earlier email exchange including the emails of 14 and 15 February 2023.
3.Nothing in the email exchange of 14 and 15 February 2023 ‑ or, for that matter, the subsequent emails - involved anything of substance going to the underlying merits of the appellant's application for determination by the primary judge.
The appellant's written submissions were primarily directed to the allegation of lack of independence and impartiality rather than the allegation of denial of procedural fairness. I am, in any case, unable to identify any arguable basis for the allegation of denial of procedural fairness. The appellant was provided with the email exchange. The appellant was able to deal with anything arising from the email exchange if and to the extent that anything arose that needed to be dealt with. However, on the face of the materials, there was in fact nothing that needed to be dealt with.
As to the allegation of bias, the relevant principles are addressed by this court in the recent decision of Armet v Stephen Browne.[6] In terms of actual bias, neither the emails nor the conduct of the hearing
before the primary judge demonstrate any arguable basis on which to question the primary judge's independence and impartiality. As to apprehended bias, there is no logical connection between the emails and the contended for concern that the primary judge might have been led to decide the case other than on its legal and factual merits. A fair‑minded lay observer would not reasonably apprehend, as a result of the complained of emails, that the primary judge might not bring an impartial mind to the resolution of the case.
[6] Armet v Stephen Browne [2024] WASCA 44 [57] - [59].
In any case, the hearing before the primary judge took place on 25 May 2023. By that time the appellant was well aware of the email exchange of 14 and 15 February 2023, it having been sent to the appellant by the primary judge's associate on 16 February 2023. The appellant did not seek to have the primary judge recuse herself. If, contrary to my view, the emails did provide a ground for disqualification on the basis of bias, the appellant waived any such complaint by proceeding with the hearing on 25 May 2023.
The appeal must be dismissed.
VANDONGEN JA:
I have had the great benefit of having read the separate reasons of both Vaughan JA and Lundberg J, in draft.
I agree that the appeal should be dismissed, and, like Vaughan JA, I also agree with Lundberg J's reasons for dismissing the appeal. I also record my agreement with the additional observations made by Vaughan JA in relation to ground 3.
As the Primary Judge's determination that it would have been appropriate to refuse relief in the exercise of her discretion was not dispositive of the Review Application, and given the Court did not have the benefit of any considered submissions about the issue, it is unnecessary for me to express any views about whether the making of a final order under s 36(4) of the Magistrates Court Act 2004 (WA) may properly be refused on discretionary grounds.
LUNDBERG J:
Introduction
This appeal arises out of proceedings in the Magistrates Court concerning a residential tenancy agreement for a property in Shenton Park. The appellant is the owner of that property. At the relevant time, the tenants were Brianna and Dominic Pekin. I will refer to them collectively as the tenants, and to Ms Pekin as the tenant.[7] The tenancy agreement had a three‑year term, due to expire on 24 November 2019. As events transpired, the tenants terminated the lease prior to the expiry of the term.
[7] Ms Pekin was the author of all communications on behalf of the tenants and appeared in the proceedings in the Magistrates Court and in the Supreme Court before the Primary Judge.
The appellant thereafter initiated proceedings seeking compensation pursuant to the Residential Tenancies Act 1987 (WA) (Residential Tenancies Act). The Magistrates Court has exclusive jurisdiction to determine applications under that legislation.[8] The proceedings in question were required to be conducted under the minor case procedure of that Court.[9]
[8] Residential Tenancies Act, s 12 and 12A.
[9] Magistrates Court (Civil Proceedings) Act 2004 (WA), pt 4.
The appellant claimed an amount of approximately $4,000, for the costs of advertising for the re‑letting of the property, a portion of the water bill, and three weeks lost rent. In the result, a sum of $1,371.29 was awarded to the appellant, with the Learned Magistrate declining to award legal costs to either party, although he considered it was appropriate to award the tenants their disbursements in the sum of $829.15, representing travel and stationery costs (Magistrate's Decision).[10]
[10] Transcript of Magistrate's reasons on 9 November 2021, GAB 832 - 834.
The appellant sought a review order in the Supreme Court in relation to the Magistrate's Decision (Review Application),[11] under the statutory judicial review power in s 36 of the Magistrates Court Act 2004 (WA). Section 36 relevantly states:
[11] Review Application, BAB 64.
36. Supreme Court's powers to control Court
(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.
(2)The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.
(3)On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.
(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 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.
Primary Reasons
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 Correspondence
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.
After the tenant had received notice of the proceedings from the Magistrates Court, the tenant sought procedural advice from the registry of the Magistrates Court by email.[18] An email was thereafter sent to the tenant on 29 April 2021 by a Customer Service Officer of the Magistrates Court, which was the morning of the first hearing in that Court.[19] The email concluded with the words:[20]
Please respond to this email with any documents you wish to rely upon at the hearing and they will be provided to the presiding Magistrate.
[18] Primary Reasons [44].
[19] Primary Reasons [44].
[20] Primary Reasons [44].
The tenant responded to this invitation by sending to the Customer Service Officer various emails which had passed between the parties and text messages she had sent to the appellant in relation to the tenancy.[21]
[21] Primary Reasons [44].
The Primary Judge found that, well before the final trial in the Magistrates Court, the tenant had filed a Statement of Intended Evidence which included all of the Correspondence that was emailed to the Customer Service Officer on 29 April 2021.[22] The Statement of Intended Evidence was found by the Primary Judge to have been served on the appellant prior to the trial and formed part of the evidence at the trial.[23] Further, the Primary Judge found that the appellant was able to challenge or contextualise the Correspondence in cross‑examination or by adducing evidence of his own at the trial.
[22] Primary Reasons [45].
[23] Primary Reasons [45].
In these circumstances, it is far from surprising that the Primary Judge formed the view that there had been no denial of procedural fairness in relation to the Correspondence.[24]
The Costs Documentation
[24] Primary Reasons [47].
The second of the communications about which the appellant complains was sent by the tenants to the Magistrates Court by email on 9 November 2021. The email was sent shortly before the hearing at which the Magistrate delivered his oral reasons. The email concerned the costs claimed by the tenants.
As explained below, it appears an officer of the Magistrates Court emailed the tenant requesting that she send copies of the invoices and vouchers which underpinned the disbursements she had claimed. The tenant did so, but did not copy the appellant to that communication.
The final hearing was scheduled for 2.15 pm on 9 November 2021. At 1.54 pm on that day, a Customer Services Officer from the Magistrates Court emailed the tenant in the following terms:[25]
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.
[25] GAB 1025 - 1026.
Whilst the matter was being called on for hearing, the tenant responded by email, attaching receipts and invoices.[26]
[26] GAB 1025.
The Magistrate then delivered oral reasons explaining the amounts he would award in relation to each component of the appellant's claim.[27] The Magistrate found the appellant was entitled to the sum of $1,371.29. The Magistrate noted that each side had claimed costs, and he explained why he rejected the appellant's claims in this regard. The Magistrate indicated he would, however, award disbursements in favour of the tenants:[28]
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.
[27] GAB 823 - 835.
[28] Primary Reasons [59].
The Magistrate noted that he had asked for vouchers in respect of these costs (which I take to be a shorthand reference to the request contained in the email referred to at [32] above). The Magistrate said he considered the appellant should pay the costs of the airfares and any expenses that the tenants had incurred in relation to the provision of the documents to the Court, and the Magistrate then discussed with the tenant the documents which had been provided in support of the claims.
The total of all the costs awarded in favour of the tenants was $829.15, which included airfares in the sum of $452.70, stationery items of $204.15, and costs of taxis and Ubers of $172.30. The Magistrate declined to award the tenant any portion of her lost salary.
Finally, the Magistrate invited the appellant to comment on any inaccuracies in the calculations and asked if he agreed with them. The appellant stated:
I have nothing to say at the moment.
The Primary Judge noted that the Magistrate did not expressly give the appellant the opportunity to comment on the travel costs and disbursements which were being claimed by the tenants (as to their nature or as to their quantum), or as to whether any such costs should be awarded in favour of the tenants.[29]
[29] Primary Reasons [64].
Nonetheless, the Primary Judge concluded there had been no denial of procedural fairness, essentially for the reasons set out at [41] ‑ [43] below.
The appellant had the opportunity to make written submissions as to costs. In particular, the appellant had received the tenant's submissions in which she claimed costs and he was provided with the Costs Documentation at the hearing on 9 November 2021.[30]
[30] Primary Reasons [68].
Further, for the duration of the proceedings in the Magistrates Court, the appellant had demonstrated to the Magistrate that he 'did not need an express invitation before he would make submissions'. The appellant had demonstrated he would make submissions whenever he had something to say.[31]
[31] Primary Reasons [68].
The Magistrate was aware that the appellant had a practising certificate. There was nothing preventing the appellant from making submissions as to the claimed disbursements. The Magistrate expressly asked the appellant if he agreed with the costs calculations and he declined to make any observation in this regard.[32]
Further matters addressed by the Primary Judge
[32] Primary Reasons [69].
In the event the Primary Judge was incorrect in her conclusion that there had not been a denial of procedural fairness, her Honour proceeded to assess whether any denial of procedural fairness was material and whether the relief should be refused on discretionary grounds.
As to the materiality of any denial, her Honour expressed the view that she would have been reluctant to find that any denial was not material. In this respect, her Honour acknowledged 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'.[33] Her Honour observed that this case might be such a rare case, but, as noted, ultimately accepted the difficulties in reaching such a conclusion.
[33] Primary Reasons [74], referring earlier to the statements of the High Court in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [32] - [33] (Kiefel CJ, Keane and Gleeson JJ) and [46] - [47], [50] - [51], [55] and [59] (Gageler J).
Lastly, turning to the discretion whether to grant relief, her Honour was in no doubt that, had she found a denial of procedural fairness, she would nonetheless have refused to grant any relief. In essence, her Honour accepted the tenant's argument that relief should be refused on the grounds of proportionality, in light of:[34]
(a)the considerable time and resources devoted to the assessment of the issues within the Magistrates Court, which was required to be dealt with as a minor case;
(b)the determination of the appellant's claim by the Magistrate on the merits;
(c)the favourable offer made by the tenants to resolve the claim prior to the trial of the matter; and
(d)the modest sums involved.
[34] Primary Reasons [76] - [86].
Her Honour described the circumstances of the case as falling with the 'exceptional' category in which it would be appropriate to refuse relief even if there had been a material denial of procedural fairness.[35]
[35] Citing the observations of Vaughan J in Hemmett v Market Direct Group Pty Ltd [2018] WASC 214 [41] in this regard.
Grounds of appeal
The grounds of appeal filed by the appellant are extremely difficult to follow. The precise grievances of the appellant in relation to the decision of the Primary Judge are not readily ascertainable from those grounds. The written submissions of the appellant (Appellant's Submissions) do not provide the Court with any further clarity as to the scope of the grounds.[36] Indeed, the Appellant's Submissions strayed well beyond the express terms of the grounds themselves.
[36] WAB 12 - 22.
The three grounds of appeal are as follows:[37]
1.Her Honour on special appointment, learned Judge of the Supreme Court of Western Australia (in chambers) on denying procedural fairness result in miscarriage of justice, failure to act judicially, or in accordance with rules of reason and justice referring paras [76] ‑ [86] of the reasons for the decision on a final review order hearing making an order on the originating application in the matter as dismissed.
2.Her Honour on special appointment, learned Judge of the Supreme Court of Western Australia (in chambers) erred in law, failure to uphold on conduct by Magistrate, breach of the duty to act judicially or in accordance with the rules of procedural fairness but deny the appellant hearing on submissions referring pars [37] ‑ [41] of the reasons for the decision on final review order hearing making an order on the originating application in the matter as dismissed.
3.Her Honour on special appointment, learned Judge of the Supreme Court of Western Australia (in chambers) erred in law, actual or apprehended bias and result in a denial of natural justice as proceedings on a cause not heard referring paras [42] ‑ [75] of the reasons for the decision on a final review order hearing making an order on the originating application in the matter as dismissed.
[37] WAB 10 - 11.
Grounds 1 and 2 appear to challenge the assessment by the Primary Judge of the complaints that the appellant was denied procedural fairness in the Magistrates Court proceedings.
Ground 3 involves a challenge to the Primary Reasons on the grounds of actual and apprehended bias, and a denial of procedural fairness. Although not clear, based on how it is developed in the Appellant's Submissions, this ground focuses attention on certain email communications of a procedural nature passing between the Court and the tenant.
Conduct of the appeal hearing
To assist with the efficiency of the appeal hearing, and as the appellant had filed written submissions in support of the appeal, the Court made an order limiting the time for either party to make oral submissions to one hour.[38]
[38] Order made 26 February 2024.
Late in the evening on the day before the listed appeal hearing, and without leave, the appellant emailed to the court a further set of submissions (Supplementary Submissions).[39] The Supplementary Submissions addressed various matters, most of which bore no relation to the grounds of appeal.
[39] Appellant's submissions entitled 'Supplement in a matter of pending appeal on review decision' dated 7 March 2024.
The Supplementary Submissions traversed the jurisdiction of the Court of Appeal, the nature of the right of appeal, the contempt jurisdiction pursuant to O 55 r 3(1) of the Rules of the Supreme Court 1971 (WA), as well as matters concerning procedural fairness.
Having heard from the appellant as to the asserted relevance of the Supplementary Submissions, the Court ruled that it would only take into account certain matters in the document insofar as they addressed the grounds of appeal, there being no application to amend the grounds of appeal themselves.[40] Accordingly, the balance of the document was disregarded by the Court.
[40] Appeal ts 9 - 10 (ruling the Court would only have regard to pages 10 to 14 of the Supplementary Submissions).
Disposition ‑ Ground 1
On its face, the first ground appears to assert the Primary Judge erred in her conclusion that, even if there was a denial of procedural fairness, and even if the denial was material, the relief should be refused on discretionary grounds. This focus is apparent from the appellant's specific reference within the ground itself to [76] ‑ [86] of the Primary Reasons.[41] However, the Appellant's Submissions appeared to drift into a broader challenge to the Primary Judge's conclusion that there was no denial of procedural fairness.
[41] WAB 11.
I will address both aspects below.
Denial of procedural fairness
The Primary Judge accepted that the Magistrate was required to afford the appellant procedural fairness in the determination of the Review Application. That may also be accepted on this appeal.
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.
Proportionality
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.
The first ground of appeal should accordingly be dismissed.
Disposition ‑ Ground 2
The second ground on its face appears to be directed to the Primary Judge's decision to put to one side the submissions made by the appellant which went beyond the matters covered by the Ex parte Review Order made on 20 January 2023.
Again, the Appellant's Submissions insofar as they relate to this ground have a tendency to muddy the thrust of his complaints. For example, this ground appeared to again raise a challenge to the Primary Judge's conclusion there was no denial of procedural fairness. To the extent this issue is embodied in ground 2, I have addressed the substance of that complaint above.
Focusing then on the terms of the Ex parte Review Order, it is important to recognise that, by its terms, that order was confined to the procedural fairness challenge mounted by the appellant in relation to the Correspondence and the Costs Documentation.[45] To the extent to which the appellant sought to address the Primary Judge on matters travelling beyond the Review Order, it was naturally to be expected the Judge would disregard those matters.
[45] BAB 25, order 1(a) and 1(b).
Indeed, at the hearing before the Primary Judge on 22 February 2023, her Honour made it abundantly plain to the parties that the final hearing would be confined to the matters identified in the Ex parte Review Order. The Primary Judge addressed the parties as follows:[46]
Archer J: So the hearing that will occur is limited to two things. Firstly, the correspondence that I refer to in the primary judgment at paragraph 115. And secondly, the costs documentation that I refer to in the primary judgement at 125. So it is very important that both parties understand that it is irrelevant to raise anything that is not connected to one of those two things. Now Mr Bajaj, your application for review orders canvassed a lot of things and most of those things, I have rejected.
If you are unhappy with the things that I have rejected, you need to appeal them. The review order that's coming up is limited to the correspondence and the cost documentation. Alright? So in terms of the evidence that I will be dealing with, I have the relevant evidence that's already been filed by, Mr Bajaj. Ms Pekin may wish to file evidence in relation to the correspondence and cost documentation. In particular to identify what that actually was and anything contextualising how that came to be provided to the court ‑ if indeed it was. And also, whether or not any of that material provided to Mr Bajaj, and if so when and how.
Then when we actually come to do the submissions, the parties need to be aware of what the relevant issues are. So the first issue is, was there a denial of natural justice in relation to either the correspondence or the cost documentations? So that's question one. Was there a denial of natural justice in relation to either correspondence or the cost documentation? Now the burden of proving that is on Mr Bajaj. So Mr Bajaj has to satisfy me that one of those errors ‑ alleged errors, arguable errors ‑ occurred.
The second question will be if there was a denial of natural justice, was it material? And what that means is ‑ really ‑ if the ‑ if ‑ let's assume there was a denial of natural justice. If there hadn't been a denial of natural justice, could it have made a difference? And I will direct the parties to a ‑ because you're both lawyers so you can read this yourselves. A recent explanation of what that means in the context of procedural fairness and natural justice by the High Court in … Nathanson [2022] HCA 26 at paragraphs 32 and 33. And you'll see when you read those paragraphs that usually, a breach of natural justice will be material.
So that second issue probably isn't going to occupy a lot of time. The third issue is, if there was a denial of natural justice ‑ issue one. If it was material ‑ issue two. Issue three is, should I nevertheless, exercise my discretion to decline to grant relief. Now with issue three, the burden would be on Ms Pekin to show that relief should not be granted. And the sorts of factors that go to that discretion are the same as the factors that relate to judicial review and can include things like delay, acquiescence, proportionality and so on.
So those are the issues that the review order will deal with. Limited to the correspondence and the cost documentation and whether or not there was a failure of natural justice in relation to those two things.
[46] GAB 1139 (ts 68 - 69).
The appellant would have been well aware, or certainly ought to have been, from the Ex parte Review Reasons published by the Primary Judge, and from the clear explanation of her Honour at the hearing on 22 February 2023, that he would not be allowed at the final hearing to advance submissions outside the scope of the Ex parte Review Order. It was quite proper for the Primary Judge to confine the hearing in this manner. Her Honour's explanation to the parties, as extracted in the preceding paragraph, accurately reflected the effect of the statutory regime in s 36 of the Magistrates Court Act 2004 (WA) and the procedure prescribed by O 56A RSC.
The appellant's assertion that the Primary Judge 'breached the duty to act judicially' or failed to act 'in accordance with the rules of procedural fairness' by refusing to address the submissions of the appellant beyond the terms of the Ex parte Review Order is unsustainable and should be rejected.
This ground of appeal should be dismissed.
Disposition ‑ Ground 3
As with the first two grounds, the third ground is somewhat enigmatic. By its terms, ground 3 asserts an error of law by the Primary Judge on the grounds of actual or apprehended bias, and denial of procedural fairness. However, the essence of the complaint which is the subject of this ground was not clearly elucidated in any of the Appellant's Submissions, the Supplementary Submissions, or the appellant's oral submissions at the hearing.
There are some fleeting references by the appellant to certain communications between the Court and the tenant, which generated concern on the part of the appellant. I refer to the email sent by the tenant to the Central Office of the Supreme Court, and the email in response from the Court, which were not immediately copied to the appellant (but subsequently were). These communications occurred on 14 and 15 February 2023.[47]
[47] GAB 1119 - 1120.
The first of these communications is the email from the tenant sent on 14 February 2023. Within the email, the tenant notes that she is a person affected by the order made by the Primary Judge on 20 January 2023, being the order made at the time of the Review Application Decision.[48] The tenant further notes she had contacted the Court by telephone for some guidance in the matter and had been asked to send her query by email.
[48] BAB 25 and BAB 27.
After noting the terms of order 4 made by the Primary Judge, requiring notice to be given to the Court of any intention to oppose the relief, the balance of the email states as follows:
I would like to advise the Court that I do intend to oppose the making of this order. Can you please advise whether this email is sufficient notification of my intention, or whether there is another process I need to comply with in relation to advising my intention.
Can you also please advise whether I should make arrangements to attend the Directions Hearing referred to in Order 5, scheduled for 11am on 22 February 2023. I live in Broome so I will need to make arrangements to appear by audio or video link.
I would also appreciate any assistance in relation to whether I should provide copies of any correspondence and communications referred to in Order 1 prior to the Directions Hearing on 22 February 2023, and if so, in what format should this be provided. Do I need to prepare an affidavit and attach the documents?
I understand from reading the Judgment that Mr Bajaj may have provided transcripts from the hearings referred to in Order 1 on 2 April 2021 and on 9 November 2021. Is it possible to get copies of these transcript if they have been filed with the Court? Or do I need to request the transcripts from the Magistrates Court. I don't believe at this stage that I need to be served with the entirety of the documents filed by Mr Bajaj in these proceedings, but it would be helpful for me to respond if I could receive the transcripts from both of these dates.
The Counter Coordinator at the Court responded to the tenant by email on 15 February 2023. In that email, the Counter Coordinator indicated that the correspondence had been 'placed on file and referred to the Associate'.
The Primary Judge's associate then, quite properly, responded to both the tenant and the appellant, by email on 16 February 2023, attaching the transcripts of the proceedings on 29 April 2021 and 9 November 2021 in the Magistrates Court. This email also included the earlier emails passing between the Counter Coordinator and the tenant.
The email from the associate states:
Your email below will serve as notice of your intention to appear. The Supreme Court Registry will add you as a party to this matter today. Once this is done, you will be able to access all documents filed in this matter electronically.
You may appear at the directions hearing by telephone. You would just need to provide me with a direct telephone number which you will answer shortly before the hearing.
You may alternatively appear at the directions hearing by Microsoft Teams. You would just need to let me know prior to the hearing and I can provide you with a link for you to join.
You do not need to file any material prior to the directions hearing. No substantive orders will be made on that date. The only orders which will be made are, after hearing from the parties, programming orders for the substantive hearing. The programming orders will set deadlines for the filing of any evidence and submissions and fixing a hearing date.
Although you will be shortly added to the matter, for completeness I have attached the two attachments to Mr Bajaj's 9 May 2022 affidavit with the transcripts from 29 April 2021 and 9 November 2021. The full affidavit will be accessible on the eCourts portal.
There is nothing objectionable in any of these communications, all of which came to the attention of the appellant shortly after they were sent, if not immediately. There are no other communications between the tenant and the Court which were the subject of specific complaint by the appellant.
As to the assertion of actual or apprehended bias, no specific complaint has been identified by the appellant in this regard. Having reviewed the transcript of the proceedings before the Primary Judge on 25 May 2023 (which was the final hearing), it appears the matter was conducted in an entirely orthodox fashion. The transcript does record that it was necessary for the Primary Judge to remind the appellant on several occasions that it was impermissible to make submissions in respect of grounds which her Honour had already found were unarguable, and to confine his submissions to the two issues the subject of the Ex parte Review Order.[49] The interjections from her Honour in this regard were appropriate and, indeed, quite necessary to ensure the hearing was properly confined to matters of relevance.
[49] Transcript of hearing before Primary Judge; ts 91, 94, and 96 - 97.
On a broader note, and other than as addressed above, the appellant has failed to identify any particular aspect of the manner in which the Primary Judge is said to have erred in approaching the task of hearing and determining the Review Application. It is certainly not for this Court, on appeal, to rummage through the materials to discover some basis for the appellant's generalised ground of appeal.
Accordingly, I can discern no basis for any legitimate complaint of practical injustice to the appellant arising from the communications between the Court and the tenant, nor any basis for the bias complaints.
The third ground has no merit in my view, and should be dismissed.
Conclusion and orders
I would accordingly dismiss the appeal, with no order as to costs.
ATTACHMENT A
Chronology of Primary Events
| Date | Event |
| 14 April 2021 | Proceedings were filed by the appellant in the Magistrates Court in Perth.[50] |
| 29 April 2021 (morning) | Email sent by a Customer Service Officer at the Magistrates Court to the tenant inviting the provision of documents. Email sent by the tenant to the Customer Service Office in response attaching documents.[51] |
| 29 April 2021 (11.35am) | First directions hearing held before the Magistrate.[52] |
| 27 October 2021 | Final hearing held before the Magistrate at the conclusion of which his Honour reserved his decision and made programming orders for written submissions to be filed by 4 November 2021.[53] |
| 4 November 2021 | The appellant and the tenant filed and served their written submissions.[54] The tenant's submissions indicated she intended to claim costs against the appellant.[55] |
| 9 November 2021 (1.54pm and 2.22pm) | Email sent by the Customer Services Officer at the Magistrates Court to the tenant, which requested invoices and vouchers. Email sent by the tenant to the Customer Services Officer in response attaching receipts and vouchers.[56] |
| 9 November 2021 (2.22pm) | The Magistrate delivered his decision orally and made final orders.[57] |
| 8 May 2022 | Originating motion filed by the appellant in the Supreme Court (CIV 1448 of 2022) pursuant to s 36 of the Magistrates Court Act 2004 (WA).[58] |
| 25 October 2022 | Hearing of the Review Application before the Primary Judge.[59] |
| 20 January 2023 | Primary Judge delivered the Ex parte Review Decision and made the Ex parte Review Order.[60] |
| 14 & 15 February 2023 | Email communications from tenant to Central Office of the Supreme Court, and email in response from the Primary Judge's associate to the tenant.[61] |
| 22 February 2023 | Directions hearing before the Primary Judge.[62] |
| 25 May 2023 | Final hearing before the Primary Judge.[63] |
| 6 June 2023 | Primary Reasons delivered in respect of the Review Application.[64] |
[50] GAB 7 - 9.
[51]GAB 979.
[52] GAB 867 - 900.
[53] GAB 543 - 755.
[54] GAB 782 - 787 and GAB 788 - 796.
[55] GAB 794E - 796.
[56] GAB 1025.
[57] GAB 802 - 803 (order) and GAB 823 - 835 (transcript).
[58] BAB 64 - 68.
[59] BAB 27 - 63 and GAB 1050 - 1051.
[60] BAB 25 - 26 (order) and BAB 27 - 63 (transcript).
[61] GAB 1119 - 1120.
[62] GAB 1137.
[63] BAB 2.
[64] BAB 2 - 23.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HQ
Associate to the Honourable Justice Vaughan
17 MAY 2024
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