Inghams Enterprises Pty Ltd v Hemming

[1990] TASSC 132

Serial No B55/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Inghams Enterprises Pty Ltd v Hemming [1990] TASSC 132; B55/1990

PARTIES:  INGHAMS ENTERPRISES PTY LTD
  v
  HEMMING, Andrew Peter, Esquire, Magistrate

FILE NO/S:  M208/1990
DELIVERED ON:  30 August 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  B55/1990
Number of paragraphs:  11

Serial No B55/1990
List "B"
File No M208/1990

INGHAMS ENTERPRISES PTY LTD
v ANDREW PETER HEMMING, ESQUIRE, MAGISTRATE

REASONS FOR JUDGMENT  ZEEMAN J

(Delivered Orally)  30 August 1990

1. The applicant, Inghams Enterprises Pty. Ltd., has instituted these proceedings against Mr Andrew Hemming, a Magistrate exercising jurisdiction under the Magistrates Court (Small Claims Division) Act 1989.

1. The proceedings were commenced by way of originating application, which, in its terms, sought a Writ of Prohibition directed to the magistrate restraining him from rehearing a claim made by the applicant against Mr & Mrs Fay, a Writ of Certiorari to bring up his determination determining to have a rehearing and to have that quashed, and a declaration that the decision which he made, which he determined ought to be the subject of a rehearing, remains of full force and effect.

1. The form of the proceedings is to seek the writs and the declaration in the first instance. I am told that that was done upon the basis of the provisions of s32, and in particular subs(2), of the Magistrates Court (Small Claims Division) Act.

1. In my view, at least insofar as the application for the writs is concerned, that is not correct. Subsection (1) of s32 generally prohibits determinations in the Small Claims Division being made the subject of prerogative or declaratory relief. However, the effect of that subsection is mitigated by subs(2) which provides that a party aggrieved by an order made by a magistrate may, within the specified period, apply to the Supreme Court for a writ or judgment of the type referred to in that subsection on one or more of specified grounds but not otherwise.

1. A consideration of how one applies to the Supreme Court for a writ takes one back to O72 of the Rules of the Supreme Court and that normally requires there to be, in the first instance, an application for an order nisi. Such an application, by long established practice, is made ex parte and is not served upon anyone else. In this case the magistrate and Mr & Mrs Fay, the persons interested in upholding the order for a rehearing, were served.

1. Insofar as a declaratory judgment is concerned, it is certainly arguable that that can only be sought by way of an action brought in this court. I do not need to determine that because counsel for the applicant abandoned the application for declaratory relief. In fact, I think it is plain that such a declaratory relief was not required. If I were to quash the order for rehearing, it would necessarily follow that there would be an extant decision of the magistrate which would be enforceable in the normal way.

1. It was agreed by all those who were before me, and that included everybody served, that notwithstanding the irregularity in the way in which the proceedings for the prerogative relief had been instituted, I should proceed to deal with the application upon the basis that it was an application for an order nisi. In the event that I were to grant an order nisi, the parties were content to be required to show cause immediately as to why it should not be made absolute.

1. The originating application set forth a large number of grounds upon the basis of which the relief was sought. Eventually, it was put upon two bases: firstly, that in exercising his discretion to order a rehearing, which discretion is conferred by s26(2) of the Act, the magistrate failed to take into account matters which were relevant to the exercise of his discretion and which he ought to have taken into account; and secondly that as to each of Mr & Mrs Fay, the preconditions to the magistrate's jurisdiction to make an order for rehearing under s26(2) had not been met. During the course of argument, the second assertion was abandoned, so that one is left with the one ultimate submission, and that is that the learned magistrate failed to take into account relevant considerations in coming to the conclusion that in the exercise of his discretion, the proceedings in which he had earlier made a determination should be reheard.

1. Counsel for the applicant submitted, in essence, that the same types of considerations as apply to the setting aside of a default judgment are relevant in the case of a magistrate exercising this type of discretion. To a certain extent, I accept that submission, but I do not think that it assists the applicant in this case. The material before me clearly establishes that there was a hearing before the learned magistrate at which one member of the defendant firm, Mrs Fay, was present and participated. But the hearing was not concluded. The learned magistrate adjourned the proceedings sine die. Subsequent to that, the matter was relisted for hearing and a notice of hearing was sent to the defendant firm. I do not need to find as to whether or not it was sufficient notice. Arguably it was not but I am prepared to assume that it was. That notice was addressed to the firm at an address not occupied by it or by Mr & Mrs Fay. It was the same address as the address to which the summons had originally been addressed, the same address as appeared on the pleadings – no other address had ever been referred to – but the fact is, it was not the correct address. There is evidence before me that previous mail had been forwarded on by the occupant of the other address, but for particular reasons which appear in one of the affidavits, this had not occurred with this notice of hearing. In those circumstances, Mr & Mrs Fay were not precluded from being entitled to having a further hearing merely because they had not drawn the attention of the plaintiff to the error made by the plaintiff. The error was insignificant. It may not have been noticed by Mr & Mrs Fay. It was a very similar address and the earlier mail may have been readdressed without their knowing it. The original fault was the plaintiff's and it certainly was not a matter for Mr & Mrs Fay to direct the attention of the plaintiff to that. I could not be satisfied upon the material before me that they knew there was an error in the address. The important factor, and it is the one upon which I base my decision, is this: Mr & Mrs Fay did not receive notice of the further hearing. Any fault on their part could only be their not having told the plaintiff that the plaintiff had selected the wrong address. I do not think that that could derogate from the proposition that as a matter of right Mr & Mrs Fay were entitled to have a rehearing. The right to be heard and to have a reasonable opportunity to be heard is fundamental, and I refer to the decision of the Full Court in Su v Davern, Serial No 66/1983.

1. I think the position is analogous to the position of where a defendant, who is the subject of a default judgment but has not been served with the originating process, applies to set the judgment aside. Upon the establishment of non service as a matter of fact, such a defendant is entitled as of right to have the judgment set aside. The same principle applies in this case where Mr & Mrs Fay received no notice of hearing. It was not the result of their having moved house and not telling the other side. It all went back to this very small error on the part of the plaintiff. They were entitled as a matter of right to have a rehearing. Any refusal to rehear in those circumstances would probably have resulted in the type of jurisdiction that I am presently being asked to exercise being exercised in their favour.

1. In my view, there is no merit in the application which has been made to me, and I refuse to make an order nisi.