Boctor v Mahar
[2016] WADC 112
•5 AUGUST 2016
BOCTOR -v- MAHAR [2016] WADC 112
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 112 | |
| Case No: | APP:8/2016 | 17 JUNE 2016 | |
| Coram: | BRADDOCK DCJ | 5/08/16 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | SHAWGI TOBIA BOCTOR SAMIRA BOCTOR HAYDEN BRYCE MAHAR JULIA MAHAR |
Catchwords: | Minor case Appeal to District Court Want of Jurisdiction Natural justice Section 32(3)(b) Magistrates Court (Civil Proceedings) Act 2004 Costs |
Legislation: | District Court Act 1969 s 6, s 65 Magistrates Court (Civil Proceedings) Act 2004 s 25, s 26, s 32, s 43 |
Case References: | Attorney General v Sillem (1864) 11 ER 1200 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- SAMIRA BOCTOR
Appellants
AND
HAYDEN BRYCE MAHAR
JULIA MAHAR
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE TEMBY SM
File No : PE MINOR 4606 of 2015
Catchwords:
Minor case - Appeal to District Court - Want of Jurisdiction - Natural justice - Section 32(3)(b) Magistrates Court (Civil Proceedings) Act 2004 - Costs
Legislation:
District Court Act 1969 s 6, s 65
Magistrates Court (Civil Proceedings) Act 2004 s 25, s 26, s 32, s 43
Result:
Appeal dismissed
Representation:
Counsel:
Appellants : In Person
Respondents : In Person
Solicitors:
Appellants : Not applicable
Respondents : Not applicable
Case(s) referred to in judgment(s):
Attorney General v Sillem (1864) 11 ER 1200
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
- BRADDOCK DCJ:
Introduction
1 The appellants are the former owners of land at 19 Dewey Street in Shelley, Western Australia. In 2005, the appellants decided to prepare for the subdivision of the property, which was an investment property. They took steps to meet the requirements of the City of Canning and the West Australian Planning Commission for that purpose. One of the requirements was to decommission the previous septic tank system. They engaged a contractor called Sepco to remove the septic tank.
2 Subsequently, the appellants swore a statutory declaration dated 15 September 2005, confirming that they had decommissioned the septic system, by emptying and removing two concrete septic tanks and backfilling the ground with sand. They also deposed to the fact that they had removed the drains and back filled with clean sand.
3 The subdivision it was subsequently registered and the appellants then sold property to a Mr Lee. Mr Lee proceeded to obtain planning permission and developed the property with two new dwellings. The purchasers of one of the dwellings, 19A Dewey Street, are the respondents.
4 On 20 November 2014, the respondents noticed that the pavers on their driveway were sinking. The following day a light tap to the pavers revealed a 1 m deep sinkhole. Within the sinkhole was a leach drain that had not been decommissioned. Sand had flowed into the leach drain void creating a hole. The leach drain extended across the driveway and approximately 2 m underneath the garage of the house.
5 The respondents spent $3,484.30 in remedying that situation. They wrote to the appellants requesting compensation. The appellant denied responsibility for the damage. The respondents sued the appellants in the Magistrate's Court at Perth, for this sum.
6 On 25 January 2016, after a hearing before the magistrate, an order was made that the appellants pay the respondents the sum of $3,713.75, forthwith. On 5 February 2016, the appellants filed a notice of appeal from this decision.
The appeal to this court
7 An appeal is a right created only by statute: Attorney General v Sillem (1864) 11 ER 1200, 1207. The nature of an appeal depends upon the terms of the statute which creates the appeal in each instance.
8 Where there is no authorization for an appeal in the relevant statute, any purported proceedings are a nullity: ie of no effect.
9 However, a judge must be satisfied that jurisdiction exists in any matter brought before the court. There is always an implied jurisdiction to determine jurisdiction. Jurisdiction includes all powers and authorities incidental to the exercise of jurisdiction: s 6 District Court Act 1969.
10 The issue squarely raised in this appeal is one of jurisdiction.
The relevant provisions
11 The respondents' claim was filed, in form 4, as a minor case. It proceeded as a minor case in the Magistrate's Court.
12 The Magistrate's Court (Civil Proceedings) Act 2004 (the Act) pt 4, s 26, provides that a minor case means:
(a) A claim within the jurisdiction of the Court where the value of the claim or of the relief claimed is not more than a minor cases jurisdictional limit; and
(b) the claimant has elected to have the claim dealt with under the minor cases procedure;
or … (not presently relevant)
14 Section 32(1) of the Act provides:
Except as provided by this section, no appeal lies against -
(a) an order made by the Court in the course of proceedings in a minor case; or
(b) the judgment of the Court in a minor case.
15 Section 32(2) provides for the procedure to be adopted if there is an appeal, which, in relation to a magistrate's decision, is pursuant to pt 7 of the Act.
16 Section 32(3) then provides:
Despite Part 7, an appeal against a judgment in a minor case may only be made on the grounds -
(a) that the minor case
(i) was not within the jurisdiction of the court; or
(ii) was not a minor case;
or
(b) that in dealing with the minor case there was a denial of natural justice; or
(c) that the judgment was beyond the Court's jurisdiction.
17 I have had the benefit of the full transcript of proceedings before Magistrate Tenby on 25 January 2016. I have also received written submissions from the respondents and the appellants.
18 The minor cases procedure in the Magistrate's Court has a number of advantages. It is intended to facilitate a relatively expeditious and informal hearing of smaller cases, without the parties incurring legal costs. In keeping with that aim, the magistrate in this case, prior to hearing evidence, also urged to parties to resolve the issue themselves.
The arguments of the parties
19 In the Notice of Appeal, the appellants raised five matters which may be summarised as follows:
1. That the magistrate 'refused' a conditional approval letter dated 15 August 2004 from the West Australian Planning Commission.
2. That the magistrate did not take into account a letter from the planning Department of the Canning City Council advising the respondents to take civil action against the developers.
3. That the respondents had no indemnity insurance policy for that property at 19A Dewey Street.
4. That the respondents' only witness when cross-examined said that the damage was caused by a flood of water from the roof and storm water drains were blocked.
5. That the respondent Mr Mahar said he was unemployed and took the photographs of the damage by himself when he was a designer and had his own business.
20 In their submissions, the appellants set out the history of the development of the property, emphasising the fact that they, the appellants, were not the developers but simply subdivided the property. They reiterated arguments that they had made before the magistrate at the hearing. In essence, they sought to argue afresh the merits of the case.
21 The respondents, in their submissions, argued that the notice of appeal did not disclose any basis upon which the appellants were entitled to appeal, under s 32 of the Act. They submitted that the appellants were given opportunity to cross-examine the respondents and witnesses and were also given opportunity to testify, and produce evidence and make submissions. The respondents took objection to additional documents that the appellants were seeking to rely on. In relation to the arguments raised by the appellants, they sought to address each of them.
22 At the hearing of the appeal, on 17 June 2016, the court heard submissions from the appellants on the jurisdictional question. It was clear that this was a matter which the appellants found difficult to address. The court accordingly sought to explore the matters relevant to a determination under s 32 of the Act, on the question jurisdiction.
23 The appellants did not seek to argue that the case was not a minor case. It is abundantly clear that in terms of the quantum of the claim, the fact that the respondents filed a minor case claim, and that it was treated throughout in the Magistrate's Court as such a case that such a proposition would be untenable. It is equally clear that a judgment in the sum of $3,700 was well within the court's jurisdiction.
Natural justice
24 I heard argument from both the appellants and respondents in order to address the only other available ground based on a denial of natural justice, in terms of s 32(3)(b) of the Act. The requirements of natural justice are also referred to as matters of procedural fairness. They are rules to be observed by all who have the duty to act judicially, including courts, tribunals, arbitrators and others. They comprise two basic rules: firstly, that nobody is to be a judge in her or his own cause, and secondly, that nobody is to be 'condemned unheard'. The first requires that the court or tribunal is unbiased between the parties and the second, that both sides of the dispute are given a fair opportunity to present and argue their respective cases.
25 As stated by Aikin J in Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, 500:
It is important to bear in mind the well-known passage from the joint judgment of Dixon CJ and Webb J in Commissioner of Police v Tanos (1958) 98 CLR 383 at page 395:
'For it is a deep rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded adequate opportunity of being heard'.
27 Thus, it can be seen that s 32(3) operates in minor cases where there is, on the face of it, no appeal permitted, to allow a form of judicial review, in limited circumstances. These are where the magistrate had no right to deal with the matter, or deal with it as a minor case, or failed to accord basic procedural fairness to the parties.
28 I have read the entirety of the transcript of the proceedings before the magistrate. No suggestion has been made of any bias on the part of the magistrate by either party. There was no suggestion that the magistrate had any interest in the claim, nor any connections with either of the parties.
29 The appellants, before the magistrate, made extensive submissions in response to the respondents' claim. Mr Boctor was both permitted and assisted by the magistrate to cross-examine Mr Mahar and the respondents' witness. Mr Boctor gave evidence and submitted documents to the court. The transcript of the hearing shows that there was a full exploration of the issues and arguments that Mr Boctor raised. In short, there was a full hearing of the case.
30 At the hearing of the appeal, it was plain that the appellants did not agree with the magistrate's decision, and that they wished to reargue the points that they had previously made.
31 The magistrate, having heard of all the evidence and argument, gave oral reasons for judgment. There is nothing in the transcript of the proceedings that lays any foundation for a claim that the appellants were not given a fair hearing. The magistrate heard both sides in full, in my assessment.
32 Whether or not one agrees with the decision, which the appellants clearly do not, I am of the view that this was a minor case conducted fairly and impartially, according to law.
33 None of the other grounds in the appellants' notice of appeal can assist them, in the absence of jurisdiction in this court to hear this appeal.
34 Where a matter is brought before the court over which the court has no jurisdiction, the court is required to order that the matter be struck out: s 65 District Court Act 1969.
35 The court in these circumstances has power to order costs to the same extent as if the court had jurisdiction: s 65 District Court Act 1969.
36 An appeal to the District Court from a magistrate would be heard under pt 7 of the Act: s 32(2). The powers of the District Court in such an appeal include the ability to make an order as to the costs of the appeal: s 43(7)(e) of the Act.
37 In minor cases, any costs recoverable are limited: s 31 of the Act.
38 Nevertheless the Magistrates Court may make an order under s 25(1) of the Act if satisfied that the unsuccessful party's claim was wholly without merit: s 31(3)(b) of the Act. This court's powers under s 43 of the Act are wider than those of the magistrate in a minor case.
39 The respondents made application for the costs of photocopying and produced a receipt from this court in the sum of $124.50. In my view it is appropriate to order that the appellants pay the sum of $124.50 to the respondents in respect of this cost, which would be for the provision of transcript. It is a proper and responsible step to take when responding to an appeal. Such order is not inconsistent with the approach set out for costs in a minor case.
40 Accordingly I order that:
1. The appeal be struck out.
2. The appellants pay the respondents' costs of $124.50.
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