Chandler v Trezise
[2003] TASSC 130
•3 December 2003
[2003] TASSC 130
CITATION: Chandler v Trezise [2003] TASSC 130
PARTIES: CHANDLER, Mark Anthony
v
TREZISE, Michael Anthony
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M306/2002
DELIVERED ON: 3 December 2003
DELIVERED AT: Hobart
HEARING DATES: 14 November 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure - Inferior courts - Tasmania-Local Courts - Practice - Procedure before trial - Conciliation conference - Limited discretion of Registrar to seek settlement or abandon conference.
Magistrates Court (Small Claims Division) Act 1989 (Tas).
Magistrates Court (Small Claims Division) Regulations 1989 (Tas), regs7, 9.
Aust Dig Procedure [419]
Procedure - Inferior courts - Tasmania-Local Courts - Practice - Trial and judgment - Failure to hold conciliation conference - Subsequent orders invalid.
Magistrates Court (Small Claims Division) Act 1989 (Tas), s26.
Magistrates Court (Small Claims Division) Regulations 1989 (Tas), reg12.
Aust Dig Procedure [420]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: T M Bugg
Solicitors:
Respondent: Dobson Mitchell & Allport
Judgment Number: [2003] TASSC 130
Number of Paragraphs: 24
Serial No 130/2003
File No M306/2002
MARK ANTHONY CHANDLER v MICHAEL ANTHONY TREZISE
REASONS FOR JUDGMENT SLICER J
3 December 2003
The respondent commenced proceedings in accordance with the provisions of the Magistrates Court (Small Claims Division) Act 1989 ("the Act") on 19 February 2002 in the Magistrates Court (Civil Division) for the recovery of fees due in relation to professional services rendered to the applicant. On 20 March 2003, the applicant elected to have the matter transferred to the Small Claims Division in accordance with the Act, s14(2) and entered a defence dated 2 April 2002, outside of the permitted time, but no issue arises because of this default. The dispute was complex and the claims of the applicant involved complaints to the Law Society, the Ombudsman and the Attorney-General. These secondary matters are not relevant to these proceedings, except to explain some instances of conduct or inaction on the part of the applicant.
On 30 April 2002, the District Registrar of the Magistrates Court wrote to the parties advising that:
"… the action has now been transferred to the Small Claims and you will be notified in due course when the matter has been set down for hearing."
A court file note dated 28 May from a court officer to a magistrate (following notice that another magistrate had indicated that he should disqualify himself) evidences an inquiry as to the location of the file since she had "received a letter from the claimant enquiring as to its listing". A note dated 30 May 2002, signed by the magistrate, records:
"Conference. Please list for Thursday 13/6/02 at 9-30 AM CN8."
On 30 May 2002, the District Registrar forwarded to the applicant, a "Notice of Conciliation Conference" relevantly stating:
"The Magistrate has directed a conciliation conference be held in this case and it has been set down:
venue: Conference Room – Please meet Conciliator outside Court No 8
Court 8 is located on the Mezzanine Level of the Magistrates Court Hobart.
date & time: Thursday 13th day of June 2002 at 9.30 am.
The purpose of this conference is to:
·Primarily to reach an early settlement agreeable to both parties, determines the points of disagreement on both sides.
If a settlement is not reached:
·To determine the available evidence supporting your side of the dispute – eg witnesses, photographs.
·To ascertain the likely duration of a court hearing if no settlement is reached.
·To allocate a date for a court hearing if both parties attend the conference.
To ensure an early understanding by both sides and of all matters involved in this claim, please attend with at least 4 copies of a short summary of all the matters you propose to raise in type or clear hand print. The summary need not be longer than one page and may be in (dot) point form, or story form.
Note: If you, do not attend the Conference the matter will be placed before a Magistrate for a one party hearing, for the party present to prove the claim or to have the claim dismissed.
I certify that I have given a copy of this Notice to the parties shown above."
On 5 June 2002, the applicant wrote to the Registrar, advising:
"I MARK ANTHONY CHANDLER am currently in Brisbane on holidays due to stress and doctors orders. Will not be returning until mid August and this claim is still under investigation by Tasmanian Legal Ombudsman and wish to have this claim defer [sic] until after investigations are concluded."
Prior to 13 June, Mr Trezise "received a telephone call from the Small Claims Division to enquire whether the Conciliation Conference was likely to be fruitful" and indicated his "view that the Conference was most likely to be a waste of time". A file note indicates the holding of a telephone conversation between a court officer and the applicant on 12 June, which reads:
"ta Mr Chandler
not available till 8/02
– Ombudsman – not (indecipherable) till dealt ċ. Only (indecipherable)
– you provided add info.
Mail: 17 Calvert Street
Rokeby
– Not Conf 13/6.
Notified for hrg
ta Mr Trezise
Advised no conf notice hrg shortly."
No adjournment of the conference was directed by the District Registrar.
On 12 August, the applicant wrote to the District Registrar, advising:
"I refer to your correspondence on 30/5/02 and 7/8/02. I also refer to my correspondence from Queensland on 5/6/02.
Why am I being shown procedural unfairness again?
I wish to have a conciliation conference that was originally offered by you.
Is it my fault that I was in Queensland from 27/5/02 until 4/8/02?"
The District Registrar replied by letter dated 15 August, advising:
"I acknowledge receipt of your letter dated the 12th August 2002 in relation to the above matter.
I refer you to Regulation 7 (2) of the Regulations under the Magistrates Court (Small Claims Division) Act 1989.
If a registrar believes in respect of a proceeding that a conference would serve no useful purpose the registrar need not comply with subregulation (1) unless directed to do so by a magistrate.
I advise that this matter will remain listed for hearing at 10am on Wednesday 4th September 2002."
to which the applicant replied on 29 August, stating:
"I have now refered [sic] this matter to the Attorney General for investigation and wish this matter to be defer [sic] until the investigation is concluded."
The exchange was completed by the District Registrar who, in a letter of 30 August, stated:
"I refer to your letter dated the 29th August 2002 in relation to the above matter.
You have been advised that the Claimant has indicated that a conciliation conference would not achieve a resolution to this matter and as a result this matter has now been listed for hearing.
This matter was commenced in the Magistrates Court (Civil Division) on the 21st February 2002 and you defended the matter on the 3rd April 2002. This matter has been delayed long enough and will remain in the list for hearing on the [sic] Wednesday the 4th day of September 2002."
The applicant did not attend the hearing on 4 September and on that day, following an ex parte hearing, judgment was entered for the respondent. The applicant sought intervention by this Court by originating application filed 17 September 2002. Concurrently the applicant sought a rehearing of the original claim as permitted by the Act, s26(2)(b). It is not necessary to follow the course of those proceedings, except to record that a further hearing was held on 21 January 2003. The applicant chose not to attend and, following a further ex parte hearing, the order made on 4 September was "restored to its full force and effect".
This hearing has been enlarged to consider the circumstances surrounding, and the effect of, that later order.
Application
The application claims, as a basis of review, error on the grounds that:
"(A)That the magistrate had no jurisdiction under this Act to determine the small claim in respect of which the order was made;
(B)That the magistrate exceeded his jurisdiction under this Act in relation to the small claim in respect of which the order was made;
(C)That the party was denied natural justice by the magistrate in the course of the process in respect of which the order was made."
The Act, s32(2)(a) and (c), provides:
"(2) Notwithstanding subsection (1), a party aggrieved by an order made by a magistrate may, within 14 days after the making of the order, apply to the Supreme Court for an order or judgment referred to in that subsection on one or more of the following grounds but not otherwise:
(a)that the magistrate had no jurisdiction under this Act to determine the small claim in respect of which the order was made;
…
(c)that the party was denied natural justice by the magistrate in the course of the proceeding in respect of which the order was made."
The original application named the magistrate as respondent, but following confused interlocutory hearings caused by the applicant, an unrepresented party, the application and accompanying documentation were served on Mr Trezise, who has now been made the appropriate respondent.
Natural justice
There has been no denial of natural justice or procedural fairness. The applicant believes that his view only ought prevail. He has maintained the position that absent accommodation of his requirement, the legal process ought cease. Yet he has recourse to this Court. He chose not to attend the hearing in September at which he could have raised, as a procedural bar, the non-holding of the conference. His attendance might have permitted the Court to identify the issues and, dependent on outcome, made provision for an appropriate settling of procedural and evidentiary matters. The applicant chose not to attend the hearing of January 2003, claiming at the hearing of these proceedings, as reason, that he was awaiting a reply from the Attorney-General. That disdain shows a lack of understanding of the role of an Attorney and a court. He believes that others ought bear responsibility for his cause. He was treated by the Magistrates Court and its officers in a proper and fair manner.
The ground has no merit.
Jurisdiction
The Act, s25(1) states:
"25 ¾ (1) In a proceeding in the small claims division ¾
(a) evidence may be taken on oath or affirmation;
(b) subject to any lawful claim or right of privilege, the magistrate may, by notice, require a member or an officer of the Council or any other person to appear before him to give evidence and to produce such documents, books, and things (if any) as are specified in the notice; and
(c) evidence may, subject to subsection (2), be given orally or in writing."
Section 9 relevantly provides:
"9 ¾ (1) The record of the small claims division in respect of a proceeding in that division consists of ¾
(a)the claim form filed under section 12(1) that relates to that proceeding or any document relating to that proceeding filed, issued, or given under the Magistrates Court (Civil Division) Act 1992 that relates to a claim that, pursuant to section 14, is transferred to the small claims division for hearing and determination as a small claim;
(b)a summary of the facts of the issue in dispute in the relevant small claim as determined and recorded by the magistrate during the hearing of that small claim; and
(c)any order made by the magistrate in relation to that small claim."
The notation of the magistrate made on 30 May evidences an order made "in relation to [this] small claim".
The Magistrates Court (Small Claims Division) Regulations (No 125 of 1989) ("the Regulations") prescribe matters of procedure, which include:
"7 ¾ (1) Subject to subregulation (2), a registrar shall, before arranging a time and place for the hearing of a small claim in the small claims division, direct the holding of a conference between the parties to the proceeding for the purposes of ¾
(a) defining and limiting the matters in dispute; and
(b) ensuring that the parties are taking all measures necessary for the hearing of the claim to take place expeditiously; and
(c) assessing the time that is likely to be required for the hearing of the claim.
(2) If a registrar believes in respect of a proceeding that a conference would serve no useful purpose the registrar need not comply with subregulation (1) unless directed to do so by a magistrate.
8 ¾ (1) A registrar shall give the parties to a proceeding in relation to which a conference is proposed to be held at least 7 days' notice of the time and place fixed for the conference, unless the parties agree to a shorter period of notice.
(2) A registrar may vary the time or place fixed for a conference if there are reasonable grounds for doing so, and reasonable notice of the variation is given to the parties.
9 ¾ (1) If, during a conference, a registrar believes that there is a reasonable possibility of settling a small claim by conciliation, the registrar may seek to bring about an agreement between the parties.
(2) If the parties to a proceeding enter into an agreement pursuant tohttp:// - GS9@Gs1@EN subregulation (1), section 29(2) of the Act applies as if the agreement were a written application made under section 29(2)(a) of the Act.
…
11 ¾ A registrar may, at any time, adjourn a conference if the registrar considers it appropriate or necessary to do so.
12 ¾ If the claimant and the respondent in a proceeding in relation to which a conference is proposed to be held fail to attend the conference, either personally or by their representatives, a registrar shall not arrange a time and place for the hearing of the relevant small claim."
In this case, neither the applicant nor the respondent attended the conference, but the requirements of reg12 do not apply. The applicant had sought an adjournment and the respondent had, at least, acquiesced, believing, understandably, the exercise to be futile. It was open for the Registrar to adjourn the conference as prescribed by regs8(2) and 11. The Registrar purported to exercise a discretion that the holding of a conference "would serve no useful purpose". He was not entitled to so do. It is possible that the terms of the notice given on 30 May contributed to the error. The notice is headed "Conciliation Conference" and, more correctly, includes "(And Hearing Date if You Fail to Attend on the Day)". It does not, strictly speaking, reflect the regulations. Regulation 7 requires the holding of a conference for the purposes of:
· defining and limiting the matters in dispute;
· ensuring an expeditious hearing; and
· assessing the time required for a hearing.
The discretion to attempt agreement only arises if "during [the] conference" the Registrar "believes that there is a reasonable possibility" of settlement (reg9(1)). The Registrar was not entitled to alter the direction and order the abandonment of the conference on the basis that it would not be productive of settlement at this stage of the proceedings. That discretion could only be exercised during the course of a hearing held in compliance with reg7. The Registrar was only entitled to not hold a conference on an exercise of discretion in accordance with the requirements of reg7(1)(a), (b) and (c).
Here, the notice of 30 May 2002 evidences that a discretion had already been exercised. It was not open to the Registrar to alter a decision made in accordance with reg7(1) by reference to a matter arising by virtue of reg9. Further, the decision to hold a conference had been ordered by a magistrate and, absent a further order made by a judicial officer, the Registrar had no power to alter the procedure, since it could only be exercised "unless directed to do so by a magistrate". The requirement that the power afforded the Registrar by reg7(2) be subject to any directions by a magistrate, is important given the wide powers of delegation afforded the Registrar by reg14.
The hearing in September has not been held in compliance with the Regulations, Pt3. The conference might have been productive in identifying the issues, regularising the pleadings and settlement procedures and evidentiary matters.
Regularity of hearing
The respondent contends that any irregularity of procedure ought not impact on the hearing conducted in September. There is no record of the proceedings conducted on 4 September in relation to the pleadings used, amendments and the like. However, the applicant was entitled to a hearing on its merits (Heatley v Tasmanian Racing Commission (1977) 137 CLR 487; White v Ryde Municipal Council (1977) 2 NSWLR 909) which affords a party the opportunity to contradict material adverse to his or her cause (Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475). A hearing on "its merits" required that attention be given to pleadings or statement of issues and evidentiary matters prior to trial. Those preliminary procedural matters were governed by regulation, non-compliance with which vitiated the hearing.
The unreasonable position adopted by the applicant does not obviate the fact that the hearing of 4 September 2002 had not been held in accordance with law and procedural requirements preparatory to the hearing. Strictly speaking, the matter could not have been listed for hearing because neither party had attended the mandated conference (reg12) and if the decision to abandon its holding, rather than adjournment, was wrong in law, the Registrar ought not have listed the matter for hearing. The error touching the hearing in September impacts on the hearing of January 2003. The Act, s26, relevantly provides:
"(2) Where ¾
(a)an issue in dispute has been determined in accordance with subsection (1); and
(b)the party that did not appear or give written evidence has, within 7 days after he receives notice of the determination, applied for a rehearing to a registrar ¾
the magistrate may order that the small claim to which the proceeding relates be reheard if it appears to him that it is just and reasonable to do so.
…(4) On an order being made under subsection (2) for the rehearing of a small claim
…
(b)the order of the magistrate made on the first hearing thereupon ceases to have effect unless it is restored pursuant to subsection (5).
(5) If the party on whose application the rehearing of a small claim is ordered does not appear or give written evidence at the time and place appointed for the rehearing or any adjournment of the relevant proceeding, the magistrate, if he thinks fit and without rehearing or further rehearing the claim, may direct that the order made on the first hearing of the claim be restored, and that order shall be thereby restored to full force and effect and shall be deemed to have been of effect at all times since the time of its making.
(6) Where a magistrate has directed that an order made on the first hearing of a claim be restored pursuant to subsection (5) a further application does not lie for an order for another rehearing of the matter under subsection (2)."
The applicant's reason for not attending the January hearing, namely that he was awaiting a reply to his complaint made to the Attorney, was unreasonable and shows a lack of understanding of the legal process. However, here the January order was that of restoring the original determination. It would appear on the material placed before this Court that no separate evaluation was made of the claim. That understandable course was permitted by the Act, s26(5). But the original order was flawed because of procedural irregularity and its restoration had no independent effect.
The appeal is upheld and the orders made on 4 September 2002 and 21 January 2003 quashed. The claim by the respondent is remitted to the Magistrates Court (Small Claims Division) to be determined in accordance with law.
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