Errington v Burton
[2003] WASC 195
•14 OCTOBER 2003
ERRINGTON -v- BURTON [2003] WASC 195
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 195 | |
| 14/10/2003 | |||
| Case No: | CIV:1618/2003 | 9 OCTOBER 2003 | |
| Coram: | WHEELER J | 9/10/03 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi made absolute | ||
| B | |||
| PDF Version |
| Parties: | BRADLEY JOHN ERRINGTON ROBERT HUCK BURTON Aranco Nominees Pty Ltd |
Catchwords: | Certiorari Small Claims Tribunal Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
PUBLISHED : 14 OCTOBER 2003 FILE NO/S : CIV 1618 of 2003 BETWEEN : BRADLEY JOHN ERRINGTON
- Applicant
AND
ROBERT HUCK BURTON
Respondent
Catchwords:
Certiorari - Small Claims Tribunal - Turns on own facts
Legislation:
Nil
Result:
Order nisi made absolute
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr G Coad
Respondent : No appearance
Intervenor
(Aranco Nominees Pty Ltd) : Ms D Calver
Solicitors:
Applicant : Geoffrey Coad
Respondent : No appearance
Intervenor
(Aranco Nominees Pty Ltd) : Kim Valenti & Associates
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 WHEELER J: This is the return of an order nisi for a writ of certiorari in respect of a decision of Mr Burton SM, sitting in the Small Claims Tribunal. As is usual in such cases, there was no appearance on behalf of his Worship. However, the other party interested in the application out of which the order nisi arises appeared before me, and was granted leave to intervene. That party was Aranco Nominees Pty Ltd.
2 Counsel for Aranco Nominees Pty Ltd advised me that, although her client did not consent to the making absolute of the order nisi, neither did her client seek to oppose that course. After brief discussion with counsel, in the light of the materials before me, I then made the order nisi absolute. I said then that I would publish brief reasons for that decision. These are those reasons.
3 The underlying dispute was one relating to repair of a motor vehicle, which the applicant, Mr Errington, claimed had been incompetently performed, so that he was put to the expense of having redone work which had already been carried out, but not to a satisfactory standard, by Aranco Nominees Pty Ltd. There had been some correspondence between the parties attempting to resolve the dispute. However, in due course Mr Errington made a claim pursuant to the Small Claims Tribunal Act, for the sum of $4,500. That sum was broken down into a variety of components, being a $1,000 refund, $700 compensation and $2,800 as the cost of having the work performed by another contractor.
4 There was apparently a hearing on 11 September 2002. At that hearing his Worship appointed an assessor to inspect the vehicle in question. No concern is raised about this step. There is before me no record of the proceedings on that date, other than the fact that the appointment of the assessor was made.
5 The assessor in due course reported to his Worship. The report supported Mr Errington's contention that the work had not been properly carried out and contained the observation that the assessor would consider the amount of $4,500 claimed by Mr Errington to be "not at all unreasonable and in fact to carry out the necessary work required for a quality panel job may even cost more …".
6 There was no further hearing. Rather, it appears that his Worship received the assessor's report at some time and that at sometime thereafter, his Worship made an order which is the subject of the present application. The order is made on a form which sets out details
(Page 4)
- of the claim. Under the heading "Nature of issue in dispute", it reads "Claim for $450 to rectify work on a car". As to the formal order of the Tribunal, it reads as follows:
"Because the offer made by the respondent to rectify the work he had done on the claimant's car to the satisfaction of the claimant and the offer of a re-inspection after the work has been done and the fact that the claim was for $450 I dismiss the claimant's claim".
Section 19 of the Small Claims Tribunal Act provides as follows:
"No writ of certiorari, … shall issue, … in respect of a proceeding taken … by or before a Small Claims Tribunal or in respect of any order made therein unless the court … is satisfied that the tribunal had or has no jurisdiction conferred by this Act to take the proceeding or that there has occurred therein a denial of natural justice to any party to the proceeding."
8 However, it is contended that there was a denial of natural justice. The submission as I understood it was that, once his Worship had received the report of the assessor, he should have given the parties the opportunity to make submissions to him. This submission is made either on the basis that there was no adequate hearing on 11 September 2002, but merely the appointment of an assessor; or alternatively on the basis that once the assessor's report was available, the parties should have been afforded an opportunity to make submissions in relation to it. In any event, it seems clear enough that at no time during the proceedings was it suggested to Mr Errington - either in argument before his Worship, or by any communication from his Worship - that the low value of the claim could form part of a reason for dismissing it.
9 The value of the claim as his Worship understood it was clearly a significant factor in his decision, looking to the terms of the order. The error which he made in relation to that value is one which would have been prevented by even the briefest of hearings. I infer therefore that the applicant cannot have been alerted to the relevance of the amount in issue, as his Worship understood it, or afforded an opportunity to make submissions in support of his claim. Had he been afforded such an opportunity, his Worship could not have misapprehended the amount in issue. For those reasons, I was prepared to find that the applicant had
(Page 5)
- not been afforded natural justice, to make the order absolute, to quash the order already made, and to remit the matter to his Worship to be further dealt with in accordance with law.
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