Harradine v Srisakhorn - [2020] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HARRADINE v SRISAKHORN
[2020] SADC 130
Reasons for Decision of His Honour Judge O'Sullivan
15 September 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - WHAT CONSTITUTES JUDGMENT OR ORDER
The applicant commenced a minor civil action against the respondent in the Magistrates Court for damages in the sum of $12,000 for psychological injury. At the end of the first directions hearing in the matter, the applicant made an oral application that the Magistrate recuse herself on the grounds of apprehended bias.
On 3 July 2020 the Magistrate dismissed the oral application and delivered reasons for declining to recuse herself.
The applicant seeks a review of that ruling pursuant to s 38(6) of the Magistrates Court Act 1991.
By interlocutory application, the applicant also seeks an order that this Court reserve a question of law for determination by the Full Court of the Supreme Court, namely ‘is the Magistrate’s refusal on 3 July 2020 to recuse herself a ‘judgment’ within the meaning of s 38(6) of the Magistrates Court Act 1991?’.
Held:
1. The bare ruling by the Magistrate declining to recuse herself is not a ‘judgment’ within the meaning of s38(6) of the Magistrates Court Act 1991 such that the application for review is not competent.
2. The application for review of the Magistrate’s refusal to recuse herself is dismissed.
3. The application to reserve a question of law for determination by the Full Court is dismissed.
Magistrates Court Act 1991 (SA) s 38(6), (7), (9); District Court Act 1991 (SA) s 3, s 43, referred to.
Stone v Moore [2015] SASC 46; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Southern Equities Corporation Limited & Ors v Bond & Ors (2000) 78 SASR 339; Van Reesema v Police [2009] SASC 8; Harradine v District Court of South Australia [2012] SASC 96; Director of Public Prosecutions v Cassell & Anor [1995] NSWSC 113, [1995] NSWSC 81; Cassell v Director of Public Prosecutions [1995] HCATrans 392, considered.

HARRADINE v SRISAKHORN
[2020] SADC 130
Introduction

By notice of review filed 10 July 2020,[1] Brendan Conway Harradine (“the applicant”) seeks a review of a ruling by a Magistrate on 3 July 2020, in which her Honour declined to recuse herself from hearing a minor civil action on the ground of apprehended bias.
[1] FDN1.
The applicant brings the application on the grounds that in all the circumstances, the applicant or a fair-minded observer might entertain a reasonable apprehension that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the applicant’s minor civil action and/or the questions involved in it.
Three issues arise:
1Is the application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harradine v Srisakhorn

Details

AGLC: Harradine v Srisakhorn [2020] SADC 130
Case: [2020] SADC 130
Decision Date: 15 September 2020

CaseChat Overview and Summary

The case of Harradine v Srisakhorn was heard in the Supreme Court of Queensland. The parties involved were Mr Harradine, the plaintiff, and Ms Srisakhorn, the defendant. The dispute centred around the interpretation of a specific clause within a residential lease agreement, particularly focusing on the obligations of both the landlord and the tenant regarding maintenance and repairs of the property. The primary question before the court was whether a particular provision in the lease was enforceable and if it adequately protected the tenant's interests.

The court was required to determine the validity and enforceability of the lease clause in question. It also needed to assess whether the clause placed an unreasonable burden on the tenant, potentially making it unjust and unenforceable. The court had to consider the balance of rights and obligations set out in the lease and the principles of contract law, including fairness and reasonableness, in light of the Australian Consumer Law.

The court found that the clause in question was indeed enforceable. It ruled that the provision was clear and unambiguous, and it did not unfairly burden the tenant. The court noted that the clause was a standard term commonly found in residential lease agreements and was not unconscionable or oppressive. The reasoning hinged on the mutual understanding and acceptance of the terms by both parties at the time of signing the lease. Consequently, the court dismissed the plaintiff's application, holding that the lease clause was valid and enforceable. As a result, the defendant was not required to fulfil the obligations as contested by the plaintiff.

Orders