R v Willee; Ex parte Chandler
[2001] TASSC 85
•3 August 2001
[2001] TASSC 85
CITATION: R v Willee; Ex parte Chandler [2001] TASSC 85
PARTIES: R
v
WILLEE, Roger Cedric
CHANDLER, Mark Anthony, Ex parte
CHANDLER, Sarah Jean
OAKLEY, Melissa Anne
OAKLEY, Tanya Louise (Interested Parties)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M111/2001
DELIVERED ON: 3 August 2001
DELIVERED AT: Hobart
HEARING DATE: 23 July 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
Procedure - Inferior courts - Tasmania - Local courts - Orders in nature of certiorari - Whether orders made by a magistrate in the Small Claims Division of the Magistrates Court were beyond power.
Magistrates Court (Small Claims Division) Act 1989 (Tas), ss3(1), 13, 29 and 30(1).
Supreme Court Rules 2000 (Tas), r627(2)(b).
R v Hemming; ex parte Nation B31/1992, distinguished.
Aust Dig Procedure [426]
REPRESENTATION:
Counsel:
Prosecutor: In person
Respondent: L J Neasey
Interested Parties: In person
Solicitors:
Prosecutor:
Respondent: Director of Public Prosecutions
Interested Parties:
Judgment Number: [2001] TASSC 85
Number of paragraphs: 14
Serial No 85/2001
File No M111/2001
THE QUEEN v ROGER CEDRIC WILLEE;
Ex parte MARK ANTHONY CHANDLER;
SARAH JEAN CHANDLER, MELISSA ANNE OAKLEY
and TANYA LOUISE OAKLEY (Interested Parties)
REASONS FOR JUDGMENT COX CJ
3 August 2001
This is the return of a general order directed to the respondent to show cause why a writ of certiorari should not be granted to quash his decision made in the Small Claims Division of the Magistrates Court ("Small Claims Court") on 8 May 2001 on the grounds that the said magistrate:
"(aexceeded his jurisdiction within the term of Section 13(2) of the Magistrates Court (Small Claims Division) Act 1989;
(bexceeded his jurisdiction in making the orders that he made, being orders 1, 2, 1, 2, 3, 4, 5 and 6 (sic) dated 8 May, 2001 and expressing those orders in the terms he expressed them; and
(cdenied the Prosecutor natural justice in that the Magistrate accepted documentary evidence of the values of the items of property, the subject of dispute in the small claim, without providing the Prosecutor with a copy of the said documentary evidence, before the said Magistrate made his said orders, such document being Annexure X, Page 11 to the Affidavit of the Prosecutor sworn 21 May, 2001 and filed herein."
The Interested Parties were claimants in a suit in the Small Claims Court which they instituted against the prosecutor who is their father. This acrimonious and seemingly petty litigation arose after the prosecutor and his wife separated and family loyalties divided. Prior to the institution of this action, proceedings were taken in the Family Court of Australia between the prosecutor and his wife. The Interested Parties sought the return of various chattels in or around the former family home which, although in the joint names of the husband and wife, was in the sole possession of the prosecutor. According to correspondence attached to the prosecutor's voluminous affidavit in support herein, some of the Interested Parties wrote to the solicitor acting for the prosecutor in the Family Law proceedings asking for their return, but the solicitor responded, advising that he was instructed to refrain from dealing with such correspondence until the issues between the prosecutor and his wife had been resolved. In the face of this attitude, the Interested Parties then commenced proceedings in the Small Claims Court on 26 February 2001. Their claim was expressed to be a claim "for retention of property" and in the claim form they described their damage as follows:
"Nov '99 our Mother & Father separated. After April 2000 all communication between us and our father stopped. On several occasions through our Mothers lawyer we have tried to obtain our property from our father (as per attached list). The last occasion was 17th December 2000. When he agreed at a family law conference that we could get out stuff but we arrived at our family home where our father is staying to find a pile of junk outside the front door, our father locked inside the house and a policeman waiting for us. The policeman told us we would have to get a court order to get our things. Our mothers lawyer told us he could not do any more & to obtain our own lawyer. We do not have the finance to get our own lawyer. We have to try Small Claims."
The list which was attached reads as follows:
"LIST OF ITEMS FOR SMALL CLAIMS
FOR TANYA
2 Boxes of magazines which include Dolly and Girlfriend
White school art folder with art work inside
Dolls and dolls clothing and all the toys in the big box in the middle bedroom
All games, puzzles and baby toys in the cupboard of middle bedroom including Fisher Price tea set
One blackboard
Beach towelsSingle bed and any single bed bedding
FOR MELISSA
Heat proof paint ‑ pot belly black
Weight belt and knife (Mark said was stolen)
Ear muff protectors
Boat anchor (Mark said was stolen)
Tennis racquet and other badminton racquets5 1/2 TON OF WOOD Melissa has taken off 1/2 ton because Mark claim she owes him $ 30.00
FOR SARAH
Purple bedroom paint
Danny's things which include brush, choker chain and leadsAll ornaments in middle bedroom which must include the duck Melissa made for Sarah.
FAMILY ITEMS
Christmas tree and decorations which include many that the girls have made
Ski biscuit
A photo of the three girlsRecipe Books etc"
On 15 March 2001, the District Registrar of the Small Claims Court wrote to the three interested parties in these terms:
"TANYA LOUISE OAKLEY, MELISSA ANNE OAKLEY & SARAH JEAN CHANDLER -V- MARK ANTHONY CHANDLER
I refer to the abovementioned action.
Please supply a monetary value on all the items that you are asking to be returned.
Your early response would be appreciated.
Yours faithfully,
(unsigned)
DISTRICT REGISTRAR"
The Registrar's running sheet contains an undated note "please ask claimants to put some money value on items" and a note dated 19 March 2001 "Mr Willee - monetary value supplied plus another item added". The document supplied read as follows:
" LIST OF ITEMS FOR SMALL CLAIMS
FOR TANYA
2 Boxes of magazines which include Dolly and Girlfriend 40.00 White school art folder with art work inside nil Dolls and dolls clothing and all the toys in the big box in the middle bedroom 80.00
All games, puzzles and baby toys in the cupboard of middle bedroom including Fisher Price tea set 90.00
One blackboard 20.00 Beach towels 60.00 Single bed and any single bed bedding 150.00 $440.00 FOR MELISSA
Heat proof paint ‑ pot belly black 20.00 Weight belt and knife (Mark said was stolen) 55.00 Ear muff protectors 15.00 Boat anchor (Mark said was stolen) 85.00 Tennis racquet and other badminton racquets 75.00 5 1/2 TON OF WOOD Melissa has taken off 1/2 ton because Mark claim she owes him $ 30.00 420.00
$670.00 FOR SARAH
Purple bedroom paint 30.00 Danny's things which include brush, choker chain and leads 40.00 All ornaments in middle bedroom which must include the duck Melissa made for Sarah Nil $70.00 FAMILY ITEMS
Christmas tree and decorations which include many that the girls have made 130.00
Ski biscuit 120.00 A photo of the three girls Nil Recipe Books etc" 40.00 $290.00 (Melissa +) ?
Battery Heavy Duty + $100
Total =
$1470.00"
It is not clear who wrote the words and symbols "(Melissa +) ?" above the additional item "Battery Heavy Duty + $100.00".
On or about 3 April 2001, the prosecutor filed a notice of defence in this form (omitting headings and formal parts):
"TAKE NOTE THAT I, MARK ANTHONY CHANDLER
of 3 Norma Street Howrah 7018
Please be advised that Tanya Oakley and Melissa Oakley had not lived at this address for two years before my wife and I separated.
* Intend to defend the claim against me on the grounds outlined below
Details of Defence:
Please be advised that this whole issue is before the Family Law Court. I have a restraint order against my wife and a Defacto of one of my daughters. I believe that their claim relates to household items, which are Family Law Court matters in any event. This claim should not be heard until the Family Law Court issues have been settled. The claimants have already collected items from this property. Please be advised that my wife and daughters stand as one against me.
Because of tensions between us I would only be involved in a telephone linkup.
Date: 02/04/01"
There is no transcript of the hearing which took place on 7 May 2001, but it is clear that some at least of the Interested Parties gave evidence and that the prosecutor was present at it. I infer that he gave oral evidence because in his affidavit in support he placed reliance on the assertion that he had given no written evidence and that this fact gave him a right of re-hearing pursuant to the Magistrates Court (Small Claims Division) Act 1989 ("the Act"), s26. This complaint is, of course, quite unmeritorious and was not allowed as a ground authorised by the general order.
The learned magistrate delivered the following reasons in which the prosecutor was referred to as the respondent and the Interested Parties as the claimants:
" I find as follows,
1 This is an action for conversion or detinue by the Respondents 3 biological daughters for recovery of listed items.
2 After much of the evidence was given I asked Mr Chandler if he had any objection to us going to his home with the Claimants to check out the items (he was not sure of the presence of some). He was amenable to me going but eventually agreed to me and one daughter. We all went out and on arrival he apologized but said his solicitor had said under no circumstances was any one to enter without a warrant. I said ok and adjourned back to the Court. He agreed with this note on return save for the words in brackets which I have added. The case then continued.
3 This is an unfortunate case and filled with deep emotion.
4 The matters before me have not been shown to be in the exclusive jurisdiction of the Family Court and indeed are relating to the Claimants' property about which they were most persuasive and the Respondent has made some admissions in that regard. I have also listened carefully to both parties and it appears to me that the Respondent hasn't made any proper effort to determine what is in the former family home.
5
a) Tanya's claims I consider that all the items on her list with the exception of the bed are her exclusive property. I can't say the bed and accessories are hers as no doubt it was purchased by the parents for her use whilst she remained at home and remains an issue between the Respondent and the Claimant's mother. Accordingly orders will be made
b) Melissa I consider that each of the items claimed by her were hers. I note the Respondent has claimed on his insurance for the stolen items but has replaced the borrowed anchor with a new one and agrees the racquets are there. The Respondent claims the wood was his and it was five tons which he says he sold for $300. I find it was Melissa's wood stored on his Nubeena property for safety and I consider there were 5.5 tons. I am not satisfied it should be reduced for loan of the truck or petrol. Indeed I consider $60 per ton very conservative and allow $330 for that item. She should also be compensated for the battery the Respondent recharged and then broke using it for his own purposes. I allow only $50 for that item as it was not claimed to be new.
c) Sarah's items are more difficult but if the purple paint isn't returned she should recover $30 for that. Her ornaments should be carefully boxed and returned to her. Any dog equipment should also be returned to her as the pet dog was generally regarded as hers and would be beneficial to her present state of mind. I would suggest if the Respondent can be more explicit as to how the dog disappeared he could ease her mind. It is difficult to see anyone wanting to steal a 15 year old dog. I am unable to determine what happened to the dog but Mr Chandler appears to have been unnecessarily secretive.d) The Respondent was amenable to the girls receiving the Christmas tree and I so order its delivery. The recipe books which are admitted by the Respondent or through the mother's mother and mother to them be returned to the girls along with the recipe folder compiled by Melissa. I am not able to say that the Claimants have any specific property claim to the ski biscuit.
Orders:
1 That the Respondent deliver to the Court Registry in good condition by Friday next the items on the Claimant's list (including 3 Beach towels and two white) except the single bed and bedding, the wood and the weight belt and the knife the ski biscuit and the photo of the 3 Claimants. He will deliver his new substitute anchor to Melissa in return for the one he borrowed.
2 He shall deliver purple paint to the registry or $30.
1 There shall be liberty to apply any items on the list described in a general way and or substitute money orders.
2 He shall pursue the insurance claim for the weight belt knife, keep Melissa advised of the progress of the claim and pay her the proceeds of those items when received from the Insurer.
3 The Respondent will provide an inventory in triplicate of each item returned for the convenience of the Registry in acknowledging receipt and having the Claimants do like wise.
4 The Respondent to pay the Claimants the sum of $420 (or $390 if purple paint provided) plus $28.05 filing fee within 14 days into Commonwealth Account 06 7103 10195217.
5 Liberty to apply re condition of items and returned or not returned.6 This order is enforceable in the Magistrates Court Civil Division at Hobart.
Magistrate Willee
7th May 2001
Claim No. H20464/01"
So far as the first ground is concerned, the Act, s13(2) provides:
"(2) The issue in dispute in a small claim is not justiciable by a magistrate in the small claims division if, at the time that a claimant proposes to refer the claim to the small claims division, proceedings relating to the same issue in dispute are pending in, or have been heard and determined by, a court referred to in subsection (1)."
The Family Court would be a relevant court for the purposes of s13(1). The issue in the Small Claims Court was an issue of the entitlement of the three Interested Parties to the return from the prosecutor of the items they claimed. That was not an issue pending in the Family Court. The issues in the Family Court were between the prosecutor and his wife. The learned magistrate was obliged to consider whether on the evidence before him his jurisdiction had been ousted by the proceedings in the Family Court and he determined that it had not been so ousted. He acknowledged that as the bed claimed by one of the Interested Parties was household property and not hers, any issue as to that was one between the parties to the marriage. In my opinion, he had undoubted jurisdiction to resolve the issue of ownership of these items as between prosecutor and Interested Parties. Ground 1 is without merit.
Ground 3 is likewise without any merit. It has not been demonstrated that the learned magistrate accepted documentary evidence of the values of the items of property in dispute. The District Registrar quite properly asked the Interested Parties to put monetary values on them, but that was only in amplification of their claim and was not a matter of evidence. The document amounted to no more than particulars of their claim. The only monetary orders made related to the value of wood ($330), a battery ($50) and paint ($30). As to the wood, the learned magistrate recorded that the prosecutor said he had sold the wood (which he said was only 5 tons) for $300 or $60 per ton. The learned magistrate found that the quantity of wood wrongly converted was 5½ tons and allowed $330 on that basis, using a figure he regarded as very conservative in any event. It was well within the purview of the magistrate's powers to "inform himself as he thinks fit" (s24(1)) to make an estimate of the value of a battery and a tin of paint.
The prosecutor relies on some statements of general principle made by Underwood J in R v Hemming; ex parte Nation B31/1992 in which his Honour said at 3:
"Perhaps by reason of administrative oversight, the learned magistrate received from one of the parties to the proceedings before him, material which was not shown to the other party until after the proceedings had been concluded. Whether this material is described as a defence or just a letter is immaterial. The receipt of that material without disclosure to the respondent constituted a denial of natural justice. In JRL; Ex parte CJL (1986) 161 CLR 342, Mason J (as he then was) said at p350:
'A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented before him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide.' [My emphasis].
See also Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; R v Magistrates' Court at Lillydale; Ex parte Ciccone [1973] VR 122 at p127; The City of St Kilda v Evindon Pty Ltd [1990] VR 771."
For the reasons that I have given, the submission to the Court or to the learned magistrate of a list of claimed values in respect of each item the return of which was sought could not be said to be material of the kind contemplated in the cases cited. The jurisdiction of the Small Claims Court is circumscribed by the monetary value of the claim before it, a "small claim" of the kind in question here being defined as including the ingredient that it not exceed a prescribed amount (s3(1)). A request for the identification by the claimants of the maximum value of their claim was an appropriate course for the Registrar to adopt. There is absolutely no basis for contending that the prosecutor was denied natural justice because he was not shown this document (if indeed that is the case).
The second ground upon which certiorari is sought is that the orders the learned magistrate made exceeded his jurisdiction. Although inelegantly and imprecisely expressed, the claim of the Interested Parties was one falling within that part of the definition of a "small claim" which includes "(e) a claim in tort for damages in detinue or conversion". So far as the claim for the wood and battery was concerned, the learned magistrate found a conversion and assessed damages in respect thereof. It seems he could not find a specific conversion of the paint, so he treated it as still in the possession of the prosecutor and ordered payment of $30 assessed as damages for its value in the event that it was not returned. As to the goods which the Interested Parties sought to have returned, their claim was one in detinue. In an ordinary action for detinue, a plaintiff may obtain judgment for the goods themselves or for their assessed value and damages for their detention. Such an action can properly therefore be described as "a claim in tort for damages in detinue".
The orders that can be made by a magistrate in the Small Claims Court are somewhat limited. Relevantly under the Act, s29, he may make:
"(3) … such one or more of the following orders as may be appropriate:-
(a) an order that requires a party to the proceeding to pay a sum of money not exceeding the prescribed sum to a person specified in the order;
(b) an order that the claimant does not owe money to a person specified in the order;
(c) an order that requires a party to the proceeding (other than the claimant) to perform work to rectify a defect in goods, or a deficiency in services, to which a small claim in the proceeding relates;
(d) an order that dismisses the small claim to which the proceeding relates;
(e) an order that requires a party to the proceeding (other than the claimant) to replace any goods to which the small claim in the proceeding relates,
and such ancillary orders as may be necessary to give effect to the order or orders so made by the magistrate."
Subsection 3A provides:
"(3A) A magistrate may make –
(a) any order or determination under the Residential Tenancy Act 1997 arising out of a small claim; and
(b) any other order the magistrate considers appropriate."
Other relevant provisions are:
"29 …
(4) An order under subsection (3)(a) may be made to take effect –
(a) immediately or within the time specified in the order;
(b) …; or
(c) on default made in complying with some other order made by the magistrate.
(5) …
(6) An order under subsection (3)(e) shall direct that what is required to be done by the order shall be done within the time specified in the order.
(7) ...
(8) Where an order is made under subsection (3)(a)for the payment of a sum of money, the order is deemed to be a judgment of the Magistrates Court (Civil Division) and is enforceable as provided by the Magistrates Court (Civil Division) Act 1992."
Section 30(1) provides:
"30 (1) On making an order under section 29, a magistrate may adjourn the proceeding to which the order relates to a fixed date or without fixing a date and in either case may give leave to the person in whose favour the order operates to renew the reference to the small claims division of the small claim in the proceeding if the order is not complied with. "
Although s29(3A)(b) is expressed in very wide terms permitting, on the face of it, the magistrate to make "any other order the magistrate considers appropriate", it must be borne in mind that this provision was enacted as a consequential amendment to the Act by the Residential Tenancy Act 1997, s68 and the Third Schedule thereto. That provides for the removal from the original definition of small claim in the Act, s3(2) of a reference to a claim arising out of a lease or tenancy agreement in respect of any premises leased or let to the lessee or tenant for residential purposes (a claim which, like all other small claims, originally was limited to an amount not exceeding the prescribed amount). It also provides for the insertion of an additional subs(3) to the following effect:
"(3) In respect of any matter arising out of the Residential Tenancy Act 1997, a 'small claim' means ¾
(a)a claim arising out of a residential tenancy agreement within the meaning of that Act; and
(b) an application for an order or determination under that Act."
Whether by design or accident, this definition did not limit such a claim to any particular amount. A further provision inserted subs(3A) above. In my view, the general power to make "any other order the magistrate considers appropriate" must be confined to the context of that subsection, ie, a small claim as defined in s3(3), namely one arising out of a residential tenancy agreement or an application for an order under the Residential Tenancy Act 1997. It is only in respect of such a claim that the magistrate could make any order other than any order or determination under the last mentioned Act arising out of a small claim as thus defined. It is not sufficient, in my view, to broaden indefinitely the powers of a magistrate set out in the rest of s29 in respect of a small claim as defined in s3(2).
The first order the learned magistrate made was:
"1 That the Respondent deliver to the Court Registry in good condition by Friday next the items on the Claimant's list (including 3 Beach towels and two white) except the single bed and bedding, the wood and the weight belt and the knife the ski biscuit and the photo of the 3 Claimants. He will deliver his new substitute anchor to Melissa in return for the one he borrowed."
As to this order, the magistrate did not have power to order the return of any goods in specie and the first part of the order is therefore defective. The second part of it seems to fall within s29(3)(e) requiring substitution or replacement of a specific item failure to comply with which direction will give the claimants the right to renew the reference under s30(1). However, although reserving leave to apply, the learned magistrate did not formally adjourn the proceedings and it may be that this part of the order is defective for that reason. Order 2 was:
"2 He shall deliver purple paint to the registry or $30."
This is technically defective because there is no power to order the return of goods in specie. The next order was (again numbered 1):
"1 There shall be liberty to apply any items on the list described in a general way and or substitute money orders."
The laudable intention was to enable identification and/or an assessment of the value of any goods not returned. Unfortunately the order is defective because it proceeds from the false premise that the court had power to order the return of the goods in specie. Order again numbered 2 was:
"2 He shall pursue the insurance claim for the weight belt knife, keep Melissa advised of the progress of the claim and pay her the proceeds of those items when received from the Insurer."
It seems that this item went missing from the family home. There is a suggestion that the prosecutor's wife stole it, presumably out of spite. Anyway, an insurance claim in respect of it appears to have been made, but not immediately accepted by the insurer because one of the insured (the wife) was suspected of being the thief. Again, the intention was laudable but the order beyond power. Order 3 was:
"3 The Respondent will provide an inventory in triplicate of each item returned for the convenience of the Registry in acknowledging receipt and having the Claimants do like wise."
There does not seem to be any power to make such an order. Order 4 was:
"4 The Respondent to pay the Claimants the sum of $420 (or $390 if purple paint provided) plus $28.05 filing fee within 14 days into Commonwealth Account 06 7103 10195217."
The order for payment was within power and a reduction by $30 if the paint was returned seems to me to be a reasonable ancillary order, but I can see no power to direct its payment into a particular bank account. Order 5 was:
"5 Liberty to apply re condition of items and returned or not returned."
I think this, too, is defective although again well intentioned. It proceeds on the premise that there is a valid order to return the goods in specie. Order 6 was:
"6 This order is enforceable in the Magistrates Court Civil Division at Hobart."
This is unobjectionable.
Due to the above technical defects in the orders which were intended to and had the potential (if within power) to resolve this unedifying family squabble swiftly and sensibly, the orders cannot stand and an order in lieu of certiorari to quash them must issue. However, it is appropriate that I exercise the power to grant such further relief as is just. In accordance, therefore, with Supreme Court Rules 2000, r627(2)(b), I will in addition, instead of ordering that a writ of mandamus issue, order that the learned magistrate perform such lawful duties as are necessary to make enforceable orders in accordance with his findings. On the return of the general order, Mr Lawrence Neasey appeared as counsel for the respondent who submitted to such orders as I might make and I granted Mr Neasey leave to withdraw. As both prosecutor and Interested Parties are unrepresented by counsel, I shall adjourn the further hearing of this matter but will invite Mr Neasey to appear again to make submissions as to the appropriate orders. In general terms, I have in mind orders requiring that the learned magistrate determine the value of such items as have not been returned, order the payment without reference to any particular account of the sums assessed as damages for conversion (which should be corrected by the deduction of $10 as there appears to be an arithmetical error), make findings about the fate of the weight belt knife, ie whether it was converted or detained by the prosecutor, and if so, assess its value and generally make consequential orders requiring the prosecutor to pay to the Interested Parties the amounts assessed as damages due to each of them.
If common sense prevails, the prosecutor can save all that trouble by handing over the goods in dispute still in his possession and agreeing and paying the value of what is missing.
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