Halil v Hender No. DCCIV-96-875 Judgment No. D3505

[1996] SADC 3505

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons of His Honour Judge Lunn

Hearing

05/11/96.

Catchwords

PRACTICE AND PROCEDURE Minor civil action review - right of counsel to appear on a review - held a review is not part of a minor civil action and s38(4) MCA does not preclude legal representation as of right on a review. PRACTICE AND PROCEDURE Objection to jurisdiction in Magistrates Court - held failure to comply with MCR30(2) in not taking out an application when filing a defence did not preclude the action being dismissed for want of jurisdiction under s24(1) of the Residential Tenancies Act 1995 - meaning and function of MCR30(2) discussed. RESIDENTIAL TENANCIES Jurisdiction of Tribunal - held under SS110(c) and 24(1) of Residential Tenancies Act 1995 Tribunal had exclusive jurisdiction to deal with claim by a landlord against a tenant for damage to premises - action in Magistrates Court for such a claim dismissed for want of jurisdiction by Magistrate and confirmed on review.

Representation

Appellant SALIH HALIL:
Counsel: MR C DORRIAN - Solicitors: WALLMANS

Respondent MARK HENDER:
Counsel: MR J WHITE - Solicitors: PLAYFORDS

DCCIV-96-875

Judgment No. D3505

2 December 1996

On Appeal from MR HISKEY SM

(Civil)

JUDGMENT NO D3505

HALIL v HENDER

FILE NO 875/96

MINOR CIVIL ACTION REVIEW

The background

For the purposes of this review the following matters were common ground. On about 24 November 1994 the plaintiff/appellant as landlord entered into an agreement to rent a house at Clearview to the defendant/respondent for a term expiring on 6 June 1995. The defendant was obliged not to intentionally or negligently cause or allow damage to the premises. After the expiration of the tenancy the plaintiff claimed from the defendant $2,363 for alleged damage to the premises for which the defendant has denied liability. On 9 April 1996 the plaintiff commenced a minor civil action against the defendant in the Magistrates Court claiming the damages of $2,363. On 18 April 1996 the defendant filed a defence alleging that the agreement between the parties was a Residential Tenancy Agreement and that the Magistrates Court had no jurisdiction in the matter by virtue of Section 24(1) of the ResidentialTenancies Act 1995 ("the RTA 95"). The defendant did not file any application with his defence pursuant to Rule 30(2) of the Magistrates Court (Civil) Rules 1992. On 6 June 1996 the defendant took out an application to strike out the action for want of jurisdiction and to extend the time for complying with MCR30(2). On 20 June 1996 Mr Hiskey SM extended the time under MCR30(2) and struck out the action for want of jurisdiction upon a finding that the Residential Tenancies Tribunal had exclusive jurisdiction over the claim. The plaintiff has instituted in this Court an application under s38(6) of the Magistrates Court Act 1991 ("MCA") for a review of those orders. The review involved three important questions of law. There were other matters debated about a possible defence of res judicata, but I need not go into that.

Legal representation of the parties upon the review

At the commencement of the review the question was raised whether counsel had a right to appear for parties on a review or whether it was only by leave of the Court. This is a perennial question in this jurisdiction. It appears that various Judges of this Court have expressed differing views about it, but as far as I can ascertain there are no published judgments on the point.

Section 3(2) of the MCA defines a "minor civil action" to be "an action founded on ..... a small claim" and other special statutory jurisdictions. Section 10A of the MCA provides that "the jurisdiction of the (Magistrates) Court to hear and determine minor civil actions is to be exercised ..... by" certain Divisions of the Magistrates Court as set up in s7 of the MCA. Section 38 of the MCA deals generally with minor civil actions. Section 38(4) provides:

"The following provisions govern representation in minor civil actions:

(a) Representation of a party by a legal practitioner will not be permitted unless -

(i) another party to the action is a legal practitioner;

(ii) all parties to the action agree;

or

(iii) if the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner."

There are other provisions in s38(4) relating to representation which are not directly relevant to the present point. Section 38(6) of the MCA provides:

"(6) The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the proceedings and, if it appears just to do so, set aside the judgment and give any judgment that should, in the opinion of the District Court, have been given in the first instance. (It is intended that the District Court should give a final judgment on the review and not send the matter back to the Magistrates Court for further hearing or for rehearing.)"

The crucial issue is whether the review procedure set up by s38(6) for minor civil actions is a procedure "in minor civil actions" for the purposes of s38(4) or whether it is a procedure over and above the minor civil action and distinct from it. In other words does s38(4) apply to a review under s38(6)? I am of the view that it does not.

In law a right of appeal, which for this purpose is the equivalent of a review: Smith v St John (1991) 162 LSJS 404, is a statutory creation which is superimposed by legislation over a lower court or tribunal. It is purely a creation of statute and it is a separate jurisdiction from the jurisdiction of the lower court or tribunal: R v London Justices [1895] 1 QB 616 at 627; AG v Sillem (1864) 11 ER 1200. Thus a review under s38(6) is not a proceeding "in minor civil actions" for the purpose of s38(4), but something separate from the minor civil action and above it. The proceeding in the District Court is not a minor civil action, but an independent proceeding of review which is a separate action in its own right for the purposes of the District Court Act 1991.

Sections 10a and 7 of the MCA place minor civil action proceedings into particular Divisions of the Magistrates Court. By those sections any minor civil actions proceeds wholly within those Divisions of the Magistrates Court. Under s38(6) the District Court does not descend into some Division of the Magistrates Court and exercise any jurisdiction of the Magistrates Court over minor civil actions. Rather under s38(6) the District Court reviews the completed minor civil action proceedings in the Magistrates Court, and, then if it sees fit, sets aside the judgment given in the Magistrates Court and substitutes another judgment. However, in doing so the District Court is not hearing or determining a minor civil action: it is conducting a review. Subject to ss38(7) and (8) the District Court conducts the review under its own Rules and its ordinary procedures which include a common law right of a party to appear before a superior Court by counsel unless that right is expressly excluded: Ex parte Evans (1849) 115 ER 1280. Accordingly, I ruled that counsel did not need leave to appear for either party on the review and were entitled to appear as of right.

Jurisdiction of the Residential Tenancies Tribunal

The relevant provisions of the "RTA 95" only came into operation on 30 November 1995. However, no point was taken that the position would have been any different under the Residential Tenancies Act 1978 if it had been applicable.

The point in issue centres on s24(1) of the RTA 95, which provides:

"(1) The (Residential Tenancies Tribunal) has -

(a) exclusive jurisdiction to hear and determine a matter that may be the subject of an application under this Act; ......"

The plaintiff's counsel contended that under the RTA 95 the Tribunal had no jurisdiction to order the tenant/defendant to pay damages to the plaintiff/landlord for intentional or negligent damage to the premises, and so s24(1) did not apply.

The agreement between the parties was a Residential Tenancy Agreement for the purposes of RTA 95. Under s69 of that Act (and s42 of its predecessor) there was a statutory obligation on the defendant not to intentionally or negligently cause or permit damage to the premises. The disputed claim by the plaintiff to the damages sought constitutes a "tenancy dispute" under its definition in s3(1) of RTA 95 as it is "a dispute between parties or former parties to a Residential Tenancy Agreement .... about matters arising under the agreement or (the) Act". Section 110 of RTA 95 (to which neither party referred) provides:

"110. The Tribunal may, on application by a party to a tenancy dispute -

(c) order a person to make a payment (which may include compensation) under this Act (or) a Residential Tenancy Agreement .... or for breach of this Act (or) a Residential Tenancy Agreement ...."

This encompasses the plaintiff's present claim for compensation for breach of either the defendant's statutory obligations or obligations under the Residential Tenancy Agreement. Thus by virtue of s110(c) the Tribunal had jurisdiction to entertain the whole of the subject matter of the Magistrates Court action. Hence, s24(1) of RTA 95 applies to give the Tribunal exclusive jurisdiction. Accordingly, the Magistrate was correct in holding that the Magistrates Court had no jurisdiction and in dismissing the action.

Objection to jurisdiction - MCR30(2)

As the point was argued, it is desirable to say something about the operation of MCR30(2). That provides:

"(2) A party intending to object to the jurisdiction of the Court may only do so on an application filed at the same time as the Defence."

The plaintiff argued that unless the defendant was given an extension of time to comply with MCR30(2) he was precluded from objecting to the jurisdiction of the Magistrates Court to entertain the action. That cannot be correct. If s24(1) of the RTA 95 operates to deprive the Magistrates Court of jurisdiction over the claim, no Rule of Court can give that jurisdiction back to the Court because of some procedural default by the defendant: Slater v Slater [1928] SASR 161. Indeed the authorities are clear that the Court must consider, and give effect to, any jurisdictional point which comes to its attention whether it has been raised by the parties or not: Rothmans Ltd v Saudi Arabian Airlines Corp [1981] QB 368 at 376; NEC v Lockhart (1991) 101 ALR 95 at 97-8. Here the Court was obliged to give effect to s24(1) of the RTA 95 irrespective of either its pleading by the defendant or compliance with MCR30(2).

MCR30(2) is similar in some respects to RR22.02 and 22.03 of the Supreme and District Court Rules 1987. Where a court does not otherwise have territorial jurisdiction over a defendant a voluntary submission by the defendant to the jurisdiction of the court is sufficient to found jurisdiction. There was a good deal of old complicated law about what constituted a sufficient voluntary submission to the jurisdiction and defendants in years past under previous Rules had to tread a tortuous path if they sought to come before the Court to challenge proceedings brought against them without territorial jurisdiction if they were not by the procedures of the challenge to be deemed to have voluntarily submitted themselves to the jurisdiction. (See Cairns "Australian Civil Procedure" 2nd Ed pp79-84; Gascoyne Trading Pty Ltd v Pen-Pak Ocean Products Pty Ltd (1987) 48 SASR 26.) The effect of MCR30(2) is to deem a defendant who files a defence contesting jurisdiction to have submitted to the territorial jurisdiction of the Court unless at the same time he files an application seeking to challenge that territorial jurisdiction of the Court over him. Where jurisdiction is contested on grounds, such as statutory restrictions on jurisdiction, the only effect of non-compliance with MCR30(2) is a penalty in costs, but it cannot in those circumstances confer jurisdiction contrary to a statutory provision. Here there can be no practical consequence in the non compliance with MCR30(2).

The application for review is dismissed and the Magistrate's orders are upheld. I will hear the parties on costs.

In Court on Thursday, 12 December 1996

The Magistrate's order stands that the defendant should have his costs in the Magistrates Court. I allow the defendant the sum of $800 for costs of this review which is to include all orders for costs already made and all disbursements.