Miller v McCormick [No 2]
[2012] WASC 347
•20 SEPTEMBER 2012
MILLER -v- McCORMICK [No 2] [2012] WASC 347
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 347 | |
| Case No: | CIV:3319/2011 | 7 AUGUST 2012 | |
| Coram: | HALL J | 20/09/12 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Review order discharged | ||
| B | |||
| PDF Version |
| Parties: | KEVIN MILLER SHERYN MILLER CHRISTOPHER McCORMICK |
Catchwords: | Magistrates Court Review order Magistrates Court Act 2004 (WA) s 36 Residential Tenancies Act 1997 (WA) Application to recover security bond Whether tenants denied natural justice Turns on own facts |
Legislation: | Magistates Court (Civil Proceedings) Act 2004, s 27 Residential Tenancies Act, Part III |
Case References: | Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78 Hurt v Rossall (1982) 43 ALR 252 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Russell v Duke of Norfolk [1949] 1 All ER 109 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- SHERYN MILLER
Applicants
AND
CHRISTOPHER McCORMICK
Respondent
Catchwords:
Magistrates Court - Review order - Magistrates Court Act 2004 (WA) s 36 - Residential Tenancies Act 1997 (WA) - Application to recover security bond - Whether tenants denied natural justice - Turns on own facts
Legislation:
Magistates Court (Civil Proceedings) Act 2004, s 27
Residential Tenancies Act, Part III
Result:
Review order discharged
(Page 2)
Category: B
Representation:
Counsel:
Applicants : In person
Respondent : In person
Solicitors:
Applicants : In person
Respondent : In person
Case(s) referred to in judgment(s):
Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859; (2002) 122 FCR 78
Hurt v Rossall (1982) 43 ALR 252
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475
National Companies & Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Russell v Duke of Norfolk [1949] 1 All ER 109
(Page 3)
- HALL J:
Introduction
1 Disputes between the landlords of residential premises and their tenants are not unusual. For this reason a cheap, simple and informal mechanism for the resolution of such disputes has been provided for under the Residential Tenancies Act 1997 (WA). These disputes are dealt with in the minor cases jurisdiction of the Magistrates Court. Opportunities for appeal are strictly limited.
2 Clearly the intention of the Parliament was that the time and expense required to resolve disputes between landlords and their tenants should not be disproportionate to their significance. Sometimes, however, animosity between the parties becomes so pronounced that there is a risk that perspective will be lost. The dispute takes on a life of its own. The issues seem to matter so much to the parties notwithstanding that, or even perversely because, the stakes are so low.
Background
3 In the present case the applicants, Mr and Mrs Miller, rented a house in Canning Vale from the respondent, Mr McCormick. The tenancy commenced in March 2010. There were disputes from the start.
4 Prior to taking up residence, the applicants had moved some furniture into the house. There was a storm and some of the furniture was damaged. The applicants sought compensation from the respondent.
5 In the following months there were disputes in regard to the operation of a bore, storage of a refrigerator, the upkeep of gardens, the keeping of pets and damage from a fire caused by a faulty hairdryer in the bathroom.
6 Having commenced very badly, this was a landlord and tenant relationship that was destined to end in the same way. The respondent tried to terminate the lease in June 2011 and the applicants vacated in early July 2011. That, however, did not bring to an end the disputations.
7 The applicants brought proceedings in the Magistrates Court seeking compensation from the respondent for, amongst other things, storm damage to their furniture. The applicants were partly successful in that application.
(Page 4)
8 The applicants then made an application for return of their security bond from the respondent. The respondent claimed that he had a right to retain the bond for loss and damage caused by the applicants. This dispute proceeded to a hearing in the Magistrates Court on 7 November 2011. At the conclusion of that hearing, the magistrate allowed claims by the respondent totalling $1,150 and ordered that the balance of the bond, being $1,050, be released to the applicants within 7 days. It is in respect of the Magistrates Court proceedings on 7 November 2011 that the present proceedings in this court relate.
Review order - s 36 Magistrates Court Act
9 The applicants have sought to review the decision of the magistrate on 7 November 2011 by way of a review order pursuant to s 36 of the Magistrates Court Act 2004 (WA). They claim that the decision of the magistrate should be set aside because they were denied natural justice at the hearing that occurred on that day.
10 In particular, the applicants claim that they were denied the opportunity to give sworn evidence in support of their claim or to tender photographs which they say would have supported one aspect of their claim. They also claim that they were denied the opportunity to cross-examine the respondent. Before turning to what occurred at the hearing, it is necessary to set the proceedings in the Magistrates Court in their statutory context.
Relevant law
11 A person who holds a security bond in respect of a lease of residential premises is required to pay out that bond in accordance with sch 1 of the Residential Tenancies Act: s 29(4). Part D of sch 1 deals with disputes regarding a liability to repay the bond. Clause 8 relevantly provides as follows:
(1) Subject to this clause, a competent court may, upon application by an owner or a tenant, order that the amount of any security bond be paid to the tenant in full, or, where the court is satisfied that the tenant is liable to pay an amount to the owner by reason of a breach of a term of a residential tenancy agreement or for fumigation of the premises as mentioned in section 29(1)(b)(ii), that the amount of the security bond be applied in payment of, or towards, that amount and the balance, if any, be paid to the tenant.
…
(Page 5)
- (3) Where a person makes an application under subclause (1), section 18(2) shall not apply but the court shall give to the other party notice in writing of the application inviting him to indicate by notice in writing in the prescribed form, filed in the office in which the application was filed within 7 days after service of the court's notice, whether he intends to dispute the application.
(4) Notwithstanding any other provision of this Act, where -
(a) a person makes an application under subclause (1) and notice has been given to the other party in accordance with subclause (3); and
(b) that other party does not within 7 days after service of that notice, file in the office in which the application was filed a notice in writing in the prescribed form indicating that he intends to dispute the application,
a competent court may, without conducting a formal hearing, order payment in accordance with the application.
(5) If the other party indicates in the manner referred to in subclause (4) that he intends to dispute the application, section 18(2) and the other provisions of this Act relating to proceedings shall thereupon apply in relation to the application.
…
(8) An application under this clause is a prescribed dispute within the meaning of section 12 irrespective of the amount claimed.
12 The effect of those provisions is that where an application is made by a tenant for return of the security bond and it is disputed by the landlord, the matter is a prescribed dispute that is to be dealt with by a competent court. A competent court in relation to an application made under the Act means a court that under s 12A or s 13 has jurisdiction to hear and determine the application: s 3. An application under cl 8 is a prescribed dispute within the meaning of s 12 of the Act, irrespective of the amount claimed.
13 Section 12A of the Act provides that the Magistrates Court has exclusive jurisdiction to hear and determine a prescribed dispute. 'Prescribed disputes' are 'minor cases' for the purposes of the Magistrates Court (Civil Proceedings) Act 2004 (WA) and the jurisdiction is to be exercised accordingly: s 12A(2).
14 Section 27 of the Magistrates Court (Civil Proceedings) Act 2004 sets out the objectives of the minor cases procedure. The primary object
(Page 6)
- is to attempt to bring the parties to a settlement acceptable to all the parties. Section 29(1) provides that when dealing with a minor case the proceedings are to be held in private unless the court otherwise orders. The court is to act with as little formality as it thinks is reasonable: s 29(3). When dealing with a minor case, the court is not bound by the rules of practice as to evidence, but may inform itself on any matter in such manner as it thinks fit: s 29(4).
15 The Residential Tenancies Act also has provisions relating to the conduct of proceedings, contained within Part III of the Act. Proceedings are to be heard and determined wherever practicable within 14 days after they are instituted and, where that is not practicable, as expeditiously as possible: s 14. A competent court hearing an application may hear it in such manner as it considers best suited to the purposes of the Act: s 20(a). In any proceedings on an application under the Residential Tenancies Act a competent court is not bound by the rules of evidence but may inform itself upon any matter relating to the proceedings in such manner as it thinks fit: s 21. Other than in specified circumstances, a party to proceedings must present their own case and not be represented or assisted in the presentation of their case by another person: s 22. Costs are not awarded other than in limited circumstances: s 24.
16 Section 26 of the Residential Tenancies Act provides that an order made by a court under the Act is final and binding. Lest there be any doubt, it also provides that no appeal shall lie in respect of such an order. In particular, s 26(2) provides that no order shall be made under s 36 of the Magistrates Court Act in respect of proceedings taken in the Magistrates Court under the Residential Tenancies Act unless the Supreme Court is satisfied that the Magistrates Court has no jurisdiction under the Residential Tenancies Act to deal with the matter or that a party to the proceedings has been denied natural justice.
17 Normally appeals from the Magistrates Court when exercising civil jurisdiction are to the District Court under s 40 of the Magistrates Court (Civil Proceedings Act) 2004. However, as a consequence of s 26 of the Residential Tenancies Act, any such appeals are barred in respect of matters of this type. This means that the only possible avenue for review is under s 36 of the Magistrates Court Act which is the effective replacement for prerogative writs in respect of magistrates.
Natural justice
18 The provisions of the Residential Tenancies Act and the reference to natural justice in s 26 make it clear that some form of hearing is required.
(Page 7)
- However, as is so often the case, the issue is what type of hearing. In the present case, that question must be guided by the terms of the legislation.
19 The Residential Tenancies Act is not prescriptive in terms of whether evidence must be on oath, whether witnesses should be examined or cross-examined or whether there should be a process for formally proving documents. To the contrary, it allows for a much more informal approach.
20 In Russell v Duke of Norfolk [1949] 1 All ER 109, Tucker LJ said:
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case (118).
21 What is required is that the hearing be a fair one, not that it complies with some fixed body of procedural rules. What is fair in a given situation depends upon the circumstances: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 504 (Kitto J). The onus of establishing that the standard of fairness has not been met will lie upon the party who seeks to prove a breach of natural justice. It must be shown that the procedures adopted were unfair in the circumstances or that the applicant has suffered a 'practical injustice': Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 13 - 14 (Gleeson CJ).
22 The factors that will be relevant in considering the content of the requirements of natural justice in a particular case will include the statutory context: National Companies & Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296, 326 (Brennan J). The consequences of a decision are also relevant. The extent of participation in proceedings permitted by natural justice will tend to increase in proportion to the seriousness of the possible consequences: Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859; (2002) 122 FCR 78, 100 (Weinberg J).
23 If an oral hearing is required cross-examination may not be an essential element of such a hearing. Cross-examination may be thought to be inappropriate because it increases the length, formality and cost of proceedings: NCSC v News Corp (314) (Gibbs J); Hurt v Rossall (1982) 43 ALR 252, 259 (Fox J).
(Page 8)
The hearing of 7 November 2011
24 On 7 November 2011, the magistrate heard the applicants' application for return of their security bond. The proceedings commenced at 2.16 pm and were concluded at 4.11 pm that day. The transcript of the proceedings is 47 pages long. In accordance with the statutory requirements, neither party was represented. At issue was $2,200 in bond money.
25 At the commencement of the proceedings, the magistrate clarified with the parties that the matter at issue was whether the applicants were liable for loss and damage claimed by the respondent that would be offset against the bond money.
26 The magistrate then asked the respondent to detail each of the amounts that he was claiming. The respondent supported his claims with documents. He was not asked to, and did not, give evidence on oath. Throughout his account of the moneys owed, the applicants interjected on occasion to dispute the claims. The documents produced by the respondent included photographs of alleged damage.
27 It is unnecessary to detail all of the respondent's claims here. A number of them were disallowed and are not the subject of this appeal. Those that were allowed were as follows:
• $100, being an insurance excess for damage caused by the bathroom fire;
• $50 for repairs to a gate;
• $500 for cleaning;
• $250 for gardening; and
• $250 for carpet cleaning.
(Page 9)
29 In regard to cleaning, Mr Miller claimed that the premises were unclean when they moved in. In particular, he said that the cook top was filthy with grease. He said that they had taken photographs of that and had it on their computer. It would seem from the transcript that it was a laptop computer because the following exchange occurred:
MR MILLER: We took photos of it and I've got it on the computer here but I'd, you know, just be forever printing out photos. I mean it was just that badly ---
HER HONOUR: Alright; well, it shows dust and dirt on window sills around power points etc.
MR MILLER: Yes; and it was all like that when we moved in.
30 As regards the gardening, there had been reference to damage to the lawn. In this regard, Mr Miller said that the damage had been caused by pet rabbits and that the respondent had been aware of that and never told them that they could not have the rabbits. The magistrate referred to photos provided by the respondent showing numerous holes and damage to the lawn. Mr Miller then said that the back lawn had been dead when they arrived at the house. However, he conceded that rabbits may have dug holes but said they were not big holes and that he had filled them in.
31 As regards carpet cleaning, Mr Miller conceded that they had not cleaned the carpets when they vacated the premises. However, he denied that any stains on the carpet had been caused by them. When the magistrate put to Mr Miller that it would be expected of a tenant vacating premises that they would clean the carpets, he agreed but said that that was not written into the lease.
32 There was also a dispute about a broken toilet seat. The magistrate did not uphold the respondent's claim in this regard. However, the discussion with Mr Miller also involved references to some photographs. Mr Miller said he had some photographs of the toilet seat taken at the commencement of the tenancy, but, again, they were on his computer. Her Honour said it would have been useful to have printed the photographs off. Mr Miller said that he had no idea what the respondent was claiming and he had no intention of spending $20 on photographs.
33 At the conclusion of the hearing, the magistrate gave oral reasons for allowing some of the claims and disallowing others. There was no complaint by the applicants as to the procedure that had been followed. The procedure was an informal one, in that neither the applicants nor the respondent had been required to give evidence on oath. They were each,
(Page 10)
- however, afforded an opportunity to present their case in respect of each of the claims and dispute matters raised by the other.
34 I do not accept that the applicants were denied natural justice because the magistrate did not require evidence to be given on oath. The provisions of the Residential Tenancies Act permit the informal procedure that was adopted in this case and it was entirely appropriate given the nature of the dispute. The magistrate had the power to take evidence on oath but she was not required to do so. There was no objection from the parties to the procedure that was followed. Both parties were listened to at some length and with admirable patience. They were both given ample opportunity to adequately present their cases.
35 The applicants submit that they expected that evidence would be given on oath on this occasion because that had been the procedure followed in respect of their earlier compensation application. If they truly had that expectation, it is surprising that they made no mention of it on 7 November 2011. In any event, the question is whether the hearing was a fair one, not whether it met the expectations of the applicants as to how it would be conducted. In my view, the proceedings were entirely fair.
36 The applicants also complain that they were not given the opportunity to cross-examine the respondent. They did, however, take every opportunity to dispute matters that they disagreed with. I do not accept that cross-examination was a necessary component of a fair hearing in the circumstances of this case. The informality of the proceedings was entirely appropriate for the nature of the claim. Indeed, to have required evidence on oath and permitted cross-examination could have resulted in the proceedings being longer and more costly than could possibly be justified by the matters at issue. The applicants suggested that had they been able to cross-examine, they would have questioned the respondent on his credibility regarding an allegation that the lease was wrongly dated. This only serves to make the point that cross-examination would have been a waste of time.
37 The applicants also claim that they were denied natural justice by being denied the opportunity to provide evidence that would have refuted some of the claims made by the respondent. In particular, they said that they had photographs available which would have established that the lawns were dead when they commenced their tenancy. It is apparent from the transcript that the applicants did not have photographs available in hardcopy and had made a deliberate decision not to print them out. The magistrate did not refuse to receive photographs, nor did the applicants
(Page 11)
- seek an adjournment so that they could produce them. In any event, this related to a claim of $250 which, on any view, could hardly have justified any delay in concluding the proceedings.
38 Having read the whole of the transcript of the proceedings on 7 November 2011, as well as transcripts of previous proceedings, I consider that there is no merit in the applicants' claims that they were denied natural justice.
Magistrates Court lack of jurisdiction
39 The applicants made another claim in their written submissions. It was that the Magistrates Court had no jurisdiction to deal with the matter because the date on one copy of the lease had been falsified. This was a claim that had been made in earlier proceedings and related to whether the commencement date of the lease was either 20 or 27 March 2010. In the previous proceedings, the magistrate had made a finding that the commencement date was 20 March 2010. There was no doubt that the bond had been paid in respect of that lease. In those circumstances, there is no merit in the applicant's claim that the magistrate was without jurisdiction.
40 In any event, it is difficult to understand the reasoning behind this claim since the application for return of the bond moneys was made by the applicants. As I pointed out to them at the hearing, some of the claims made by the respondent had been resolved in their favour. They could hardly sensibly suggest that the magistrate had jurisdiction to find in their favour but not against them. There was no meaningful response from the applicants.
41 For the above reasons, I am not satisfied that the magistrate denied the applicants natural justice or acted without jurisdiction. Accordingly, the review order is discharged.
4