Michael David Wilks v Tully Motors and Gregory M McIntyre SM

Case •

[2000] QSC 19

•

21 February 2000

IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS  No. 3 of 1999
Before the Hon. Justice Jones
[Michael David Wilks v Tully Motors and Gregory M McIntyre SM]

BETWEEN:      MICHAEL DAVID WILKS

Applicant

AND:                TULLY MOTORS

First Respondent

AND:                GREGORY M MCINTYRE STIPENDIARY MAGISTRATE

Second Respondent

JONES J

Judgment delivered 21st day of February 2000

The application for a Statutory Order of Review is dismissed.

The applicant is to pay the first respondent’s costs of and incidental to this application to be taxed.

Catchwords:   JUDICIAL REVIEW - NATURAL JUSTICE, ON GROUND OF BREACH OF - Review sought of Small Claims Tribunal - Whether denial of Natural Justice occurred at hearing - Letter not part of case not given to Applicant - Applicant alleges hearing continued in his absence - Question of degree - No evidence of breach of natural justice.

Counsel:The Applicant represented himself

Mr D. Morzone for the First Respondent

Solicitors:Pohlmann & Spicer Solicitors & Notary for the First Respondent

Hearing date:    19th July, 1999

IN THE SUPREME COURT

OF QUEENSLAND

CAIRNS  Application No. 3 of 1999

BETWEEN:      MICHAEL DAVID WILKS

Applicant

AND:                TULLY MOTORS

First Respondent

AND:                GREGORY M MCINTYRE STIPENDIARY MAGISTRATE

Second Respondent

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE JONES

DELIVERED THE 21st DAY OF FEBRUARY, 2000

  1. This is an application for a statutory order of review of a decision of Mr.  McIntyre SM, acting in his capacity as a referee of the Small Claims Tribunal at Tully.  The applicant conducted his own case, the first respondent was represented by Mr. Morzone of counsel and the second respondent made no submissions.

Background

  1. The applicant, a former solicitor from Victoria, owns and operates a taxi service at Mission Beach.  The vehicle used in this business, a Ford Falcon station wagon, was serviced by the first respondent at various intervals from 1995 to 1998.[1]  This business relationship deteriorated however, when the applicant became displeased by what he regarded as many unnecessary and expensive repairs to his taxi.  He consequently made a claim for $5,000.00 in the Small Claims Tribunal at Tully, a figure roughly equivalent to that of the repairs undertaken.  It was alleged by the applicant that most of the repairs made during this period were only necessitated by the first respondent’s failure to properly perform the mechanical services required.

    [1] Exhibit MDW-2 to the Affidavit of Michael David Wilks sworn 5th day of July 1999 - Letter from Michael Wilks dated 1st February 1999.

  2. The subject hearing occurred on 20 April 1999, the outcome of which was that the applicant’s claim was dismissed.  Transcripts of these proceedings in the Small Claims Tribunal were not kept, nor were they required to be kept. [2]  However, what is otherwise materially alleged to have occurred and what constitutes the grounds of the application are:

    (a)That the first respondent’s “Response” dated 16th April 1999 and filed with the Small Claims Tribunal was not given, nor were its contents made known to the applicant until after the second respondent delivered the said decision.

    (b)That cross examination of the applicant’s witness was conducted in part while the applicant was out of Court and the applicant had no opportunity to fully re-examine the witness.

    (c)That although a direction was given that all witnesses leave the courtroom, permission was given for the first respondent’s witness to remain in court as he was an employee of the first respondent.

    (d)That when the said witness was in the witness box, the applicant was refused the right to cross-examine him and was only allowed to question him.

    [2] s.14 Small Claims Tribunals Act 1973

  3. These four points give rise then to several questions:  Was there a fair hearing?  Was the applicant given an opportunity to present and prepare his case?  Was the applicant treated prejudicially?  Did the referee act in good faith and fairly listen to both parties?  Essentially, however, there is only one issue to be determined here:  Was there a denial of natural justice?  This will be explored fully below.

  4. Even a brief study of the provisions of the Small Claims Tribunals Act 1973 indicates that the purpose and function of the Tribunal is a conciliatory one.  There is an “attempt to bring the parties to a dispute to a settlement acceptable to all the parties” or, if that fails, “to make such an order with respect to the issue in dispute as is fair and equitable to all the parties to the proceeding.” [3]  Although its jurisdiction is limited in monetary terms, the Small Claims Tribunal would help resolve many hundreds of minor disputes throughout this State.  It should be able to do this with a minimum of interference from other bodies.  Likewise, the Supreme Court would not wish to be inundated with myriad judicial review applications concerning sums of less than $5,000.00.

    [3] s.10 Small Claims Tribunals Act 1973

  5. Thus, it is not surprising that the Act provides for only a very limited scope of judicial supervision of the referees’ decisions.  Section 19 provides:

    Immunity from judicial supervision

    19.     No writ of certiorari, or prohibition, or other prerogative writ shall issue, and no declaratory judgment shall be given in respect of a proceeding taken or to be taken by or before a small claims tribunal or in respect of any order made therein save where the court before which such writ or judgment is sought 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. [my emphasis]

  6. The Full Court of Queensland has held that section 19 “preserves the supervisory jurisdiction of [the Supreme Court] for lack of jurisdiction and denial of natural justice and thus contemplates proceedings in the Supreme Court to challenge the decisions of the Tribunal on these two grounds.” [4]  As a denial of natural justice is the only issue in question here, it seems appropriate for the Court to entertain this application.

    [4] R v Webster, ex parte Trueline Aluminium Pty Ltd [1987] 1 Qd R 45 at 50, per Connolly J.

Was there a Denial of Natural Justice?

  1. The applicant submits that he was denied natural justice in the Small Claims Tribunal by the conduct of the second respondent.  That is all that falls here to be determined.  The grounds alleged which constitute the breaches of natural justice are particularised as follows:

    “(a)During the presentation of the first respondent’s case, the proprietor of the first respondent mentioned a letter filed with the Court.  I said to the second respondent that I had not seen the letter nor had I been given a copy of it.  He made no response to the comment.

    (b)At the completion of the evidence and before the decision was given, I asked the second respondent for a copy of the said letter.  He replied that the document had not influenced him and I could have a copy of it after he had given his decision.

    (c)After the decision was given, I obtained a copy of the “letter” and found that it was a formal document entitled “RESPONSE”.  It contains assertions that I had no opportunity to test by cross-examination of the first respondent’s witness…

    (d)Before the hearing began, the second respondent, quite properly, invited us to explore the possibility of negotiating a settlement.  In that invitation, he stated that machinery does wear out and I should remember that when negotiating with the second respondent…

    (e)During the hearing, I needed to visit the toilet.  Unfortunately it was during the cross-examination of my witness.  I explained my position to the second respondent and sought his permission to leave the Court.  He gave me permission but allowed the hearing to proceed in my absence.  During my absence, my witness gave an answer which was referred to by the second respondent in his decision as being significant.  I had no opportunity to re-examine him in relation to his answer, as I was not aware of either the question or the answer.  The answer related to the status of service procedures in the FORDCARE Plan in the Owner’s Manual given to all new car buyers at the time of purchase.

    (f)Before the hearing began, the second respondent indicated that all witnesses should leave the Court but permitted the witness to be called by the first respondent to remain in Court as he was an employee of the first respondent.” [5]

    [5] Affidavit of Michael David Wilks sworn 5th day of July 1999.

  2. Paragraphs (a), (b), (c) and (d) will be dealt with together as they all relate to the form entitled “Response”.[6]  It is essentially a two-page document prepared by the first respondent in reply to the applicant’s claim in the Small Claims Tribunal.  Although the referee read it, he said that the “Response” did not influence him in any way.  Therefore, the fact that the applicant had not been given a copy of this document before the hearing does not constitute a breach of the rules of natural justice, nor does the fact that the referee made a remark to the effect that “machinery does wear out”.

    [6] Exhibit MDW-1 to the Affidavit of Michael David Wilks sworn 5th day of July 1999

  3. One would expect a Magistrate, in this case acting as a referee, to behave in an appropriate and proper manner.  This would, of course, mean not misleading any of the parties as to what material was influencing his or her decision.  Further, Mr. Gallagher, the principal of the first respondent, deposes in his Affidavit that, “[a]t the conclusion of the hearing the referee indicated to Mr. Wilks and myself that the “Response” was not a document that was required and was not part of the legal documentation in the case.” [7]  In the absence then of any evidence to the contrary, I accept that the “Response” did not influence the second respondent.  Grounds (a), (b), (c) and (d) therefore fail.

    [7] Affidavit of Donnell Thomas Gallagher sworn 12th day of July 1999, paragraph 6.

  4. Paragraph (e), alleging that cross-examination of a witness occurred in the applicant’s absence, relates to events that the applicant could not possibly depose to.  Again, a Magistrate would be most unlikely to allow proceedings to continue when an unrepresented party is momentarily absent from the hearing.  Mr. Gallagher relates the events as follows:

    “I recall during the course of the hearing Mr. Wilks indicated that he wished to go to the toilet which was located on the verandah near the court room.  The referee gave him permission to leave the court room.  His witness was still in the witness box.  The court proceedings came to a stand still until Mr. Wilks had returned back to the court room.  There had been no discussion or issues undertaken or questions made of this witness in Mr. Wilks’ absence.” [8]

I am prepared to accept this statement as true.  The applicant, during oral argument on this application, conceded that, “I can’t dispute that Your Honour.  I wasn’t in Court.” [9]  There is therefore no direct evidence supporting this allegation, so I would be loath to find that the rules of natural justice were breached on this point.  This ground also fails.

[8] Ibid. paragraph 8.

[9] Transcript 14/1

  1. Paragraph (f) relates to the presence of the first respondent’s witness during the hearing.  As he was an employee of the first respondent, I do not see this as significant.  Mr. Justice Helman, in Datatronics (Aust.) Pty Ltd (ACN 059 564 055) v The Southport Small Claims Tribunal at Southport and James Herlihy and Richard James Thompson, found that the “failure by the referee to observe the usual practice of requiring a witness to remain outside the hearing room until called upon to give evidence would not, I think, be sufficient to constitute a denial of natural justice in the circumstances of this case given the informality of the [Small Claims Tribunal] proceedings.” [10]  Likewise, I fail to see how the presence of this witness could offend the principles of natural justice.

    [10] Datatronics (Aust.) Pty Ltd (ACN 059 564 055) v The Southport Small Claims Tribunal at Southport and James Herlihy and Richard James Thompson (26 May 1995, Brisbane) at 3.

  2. There is another ground of this application, which is referred to in the application but not further particularised, and that is that the “applicant was refused the right to cross-examine [the witness] and was only allowed to question [the witness].”  I fail to see the distinction between the two in the context of the Small Claims Tribunal hearing, and the applicant was unable to assist me during oral submissions in this Court.  Furthermore, as Mr. Justice Mackenzie has noted:

    “Where it is alleged that a person has been denied procedural fairness by denial of the right to put his case, ordinarily there will be something which shows with sufficient clarity that that had happened.  The right to put one’s case and the right of a tribunal to regulate proceedings before it coexist.  A decision maker who exercises the right to regulate proceedings does not improperly inhibit the former merely because, having given the parties the opportunity to put the essence of their cases sufficiently, he or she does not allow a party to put the case in precisely the order or degree of detail that the party wishes.  In the end, the point at which a denial of procedural fairness or natural justice occurs is a question of degree [my emphasis].” [11]

    [11] Burton v Referee, Small Claims Tribunal, Gympie [1997] QSC 226 (10 December 1997) at 3.

  3. There must be shown a substantial breach of the rules of natural justice before this Court would grant a prerogative order for review.  There is no evidence of any conduct which approaches such a breach.  For all of the above reasons I am not satisfied that the applicant was denied natural justice at the Small Claims Tribunal hearing at Tully and this application should therefore be dismissed.

Costs

  1. The first respondent has sought the costs of and incidental to this application.  Given that the first respondent “is not the person whose decision [or] conduct … is the subject of the application” [12] and that it has only been made a party to this application because it was a party to the proceedings already determined, I think it is appropriate to make such orders pursuant to the Judicial Review Act 1991.

    [12] s.49(1)(c) Judicial Review Act 1991.

  2. The second respondent, as is the usual and appropriate practice, [13] has indicated through a solicitor from the Crown Law Office that he will abide the order of the Court and does not seek costs against either party. [14]  Further, costs are only awarded against magistrates in very exceptional circumstances.  I have been referred to the decision of the Full Court of the New South Wales Supreme Court in ex parte Blume;  Re: Osborn, where the Court identified the categories of conduct which may give rise to such a claim:

    “[A]n order for costs is not ordinarily made against [a magistrate] unless there is a clear case of serious misconduct:  ex parte Cox (1896) 12 WN (NSW) 172. The rule has been stated that the magistrate must have been perverse or guilty of corruption or gross ignorance: Re: Starr (1896) 12 WN (NSW) 172 (note). But even is he falls into what the Court characterised as an astonishing blunder, he does not necessarily act perversely: ex parte Vincent (1900) 16 WN (NSW) 215.” [15]

In light of my finding to dismiss the application, I am of the view that the second respondent has not committed any acts of serious misconduct, and has not committed any acts of corruption, gross ignorance or perversion.  For these reasons, no order for costs, either in favour of or against the second respondent, will be made.

[13] The Queen v Australian Broadcasting Tribunal;  ex parte Hardiman (1980) 144 CLR 13 at 35 - 36.

[14] The right to make submissions as to costs, however, was reserved.

[15] (1958) SR (NSW) 334 at 339

Orders

  1. My orders will be:

    1.The application for a Statutory Order of Review is dismissed.

    2.The applicant is to pay the first respondent’s costs of and incidental to this application to be taxed.


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

0

Burton v Referee, Small Claims Tribunal, Gympie [1997] QSC 226