Re Bajaj; Ex parte Bajaj - [2021] WASC 335

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE BAJAJ; EX PARTE BAJAJ [2021] WASC 335
CORAM:   KENNETH MARTIN J
HEARD:   13 AUGUST 2021
DELIVERED          :   13 AUGUST 2021
PUBLISHED           :   30 SEPTEMBER 2021
FILE NO/S:   CIV 1612 of 2021
MATTER:   IN THE MATTER OF RAMESH BAJAJ

EX PARTE
RAMESH BAJAJ
Applicant

Catchwords:

Magistrates Court Act 2004 (WA) - Residential Tenancies - Termination - Application for review order -Whether denial of procedural fairness - Whether arguable case - Whether Magistrate acted outside of jurisdiction - Turns on own facts

Legislation:

Magistrates Court Act 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Residential Tenancies (COVID-19 Response) Act 2020 (WA)
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant

In person

Solicitors:

Applicant

In person

Case(s) referred to in decision(s):

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531
Rayney v AW [2009] WASCA 203
Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 13 August 2021 and has since been edited from the transcript.)

Introduction

I am dealing with an application filed on 4 July 2021 by the applicant, Mr Bajaj, that seems to be seeking relief pursuant to s 36(1) of the Magistrates Court Act 2004 (WA) (Magistrates Court Act). Mr Bajaj represents himself in these proceedings.
Section 36(1) of the Magistrates Court Act says:
If a person is or would be aggrieved by one or more of the following -
and continues under its following subpars (a), (b) and (c) to refer to the prerogative writs of mandamus, prohibition, and certiorari - in the context of the Supreme Court of Western Australia granting analogous, but not the same remedy against the order of a magistrate.
By s 36(1) the court is statutorily empowered to grant relief on a ground that might once otherwise have justified a prerogative writ remedy, say for mandamus, prohibition, or for certiorari. A person may apply ex parte under s 36(1) to the Supreme Court for an order to that end. This is called a review order.
For those old enough to remember, a review order is akin to what was formerly witnessed as an 'order nisi' - the first step in two stages towards the ultimate obtaining of an order absolute for an issue of a prerogative writ. A review order, like the former order nisi, requires the person who would be affected by the act, order, or direction (ie, here the learned magistrate) to satisfy the Supreme Court at a (later) hearing convened between the participants, that the act, order, or direction should or should not be done, made or set aside, as the case requires (under scenarios akin to prohibition, mandamus and certiorari remedies).
Section…

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 Re Bajaj; Ex parte Bajaj

Details

AGLC: Re Bajaj; Ex parte Bajaj [2021] WASC 335
Case: [2021] WASC 335
Decision Date: 30 SEPTEMBER 2021

CaseChat Overview and Summary

The matter of Re Bajaj; Ex parte Bajaj involved a dispute between the applicant, Bajaj, and the Magistrates Court of Western Australia. Bajaj applied for a review of a decision made by the Magistrates Court in relation to the termination of a residential tenancy agreement. Bajaj argued that the decision was made without procedural fairness and that the Magistrate had acted outside of their jurisdiction.

The legal issues before the court were whether the denial of procedural fairness was a valid ground for review, whether Bajaj had established an arguable case for review, and whether the Magistrate had acted outside of their jurisdiction. The court was required to determine if the decision of the Magistrates Court was legally sound and if Bajaj had a reasonable chance of success in a full hearing.

The court found that Bajaj had not established an arguable case for review as there was no evidence of procedural unfairness in the decision-making process. The court held that the Magistrate had followed the correct procedure and had not acted outside of their jurisdiction. The court emphasised that the decision to terminate the tenancy was based on the specific facts of the case, and Bajaj's arguments did not provide sufficient grounds for a review. The court dismissed Bajaj's application for review, finding that there was no basis for a full hearing on the matter.

The court made no orders as the application for review was dismissed. Bajaj was required to bear their own costs of the application.

Orders