Re Burton; Ex parte Lowe
[2003] WASCA 306
•11 DECEMBER 2003
RE BURTON; EX PARTE LOWE & ANOR [2003] WASCA 306
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 306 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2405/2002 | 20 JUNE 2003 | |
| Coram: | MURRAY J ROBERTS-SMITH J BARKER J | 11/12/03 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL LOWE LILI LOWE |
Catchwords: | Administrative law Certiorari Natural justice The "hearing rule" Residential Tenancies Act 1987 (WA), s 26 Whether there occurred a "denial of natural justice" in hearing before Magistrate in Small Debts Division of Local Court Turns on own facts |
Legislation: | Residential Tenancies Act 1987 (WA), s 12, s 20(a), s 21, s 22, s 23, s 26, s 61(a) Local Courts Act 1904 (WA), s 106I, s 106L, s 106N, s 106Q Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(h), s 5(3), s 6(1)(h), s 6(3) |
Case References: | Alvaro v Fraser & Downsborough Designers Pty Ltd (1990) 20 ALD 762 Canellis v Slattery (1994) 33 NSWLR 104 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Errington v Burton [2003] WASC 195 Hall v University of New South Wales [2003] NSWSC 669 Kioa v West (1985) 159 CLR 550 R v Small Claims Tribunal; Ex parte Amos [1978] Qd R 127 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; [2003] HCA 56 Cooper v Wandsworth Board of Works (1863) 14 CBNS 180 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487 Ridge v Baldwin [1964] AC 40 Salemi v MacKellar (No 2) (1977) 137 CLR 396 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE BURTON; EX PARTE LOWE & ANOR [2003] WASCA 306 CORAM : MURRAY J
- ROBERTS-SMITH J
BARKER J
MICHAEL LOWE
LILI LOWE
Applicants
Catchwords:
Administrative law - Certiorari - Natural justice - The "hearing rule" - Residential Tenancies Act 1987 (WA), s 26 - Whether there occurred a "denial of natural justice" in hearing before Magistrate in Small Debts Division of Local Court - Turns on own facts
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Legislation:
Residential Tenancies Act 1987 (WA), s 12, s 20(a), s 21, s 22, s 23, s 26, s 61(a)
Local Courts Act 1904 (WA), s 106I, s 106L, s 106N, s 106Q
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(h), s 5(3), s 6(1)(h), s 6(3)
Result:
Order nisi discharged
Category: B
Representation:
Counsel:
Applicants : Mr W G Vogt
Solicitors:
Applicants : Eley Palmer
Case(s) referred to in judgment(s):
Alvaro v Fraser & Downsborough Designers Pty Ltd (1990) 20 ALD 762
Canellis v Slattery (1994) 33 NSWLR 104
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Errington v Burton [2003] WASC 195
Hall v University of New South Wales [2003] NSWSC 669
Kioa v West (1985) 159 CLR 550
R v Small Claims Tribunal; Ex parte Amos [1978] Qd R 127
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; [2003] HCA 56
(Page 3)
Case(s) also cited:
Cooper v Wandsworth Board of Works (1863) 14 CBNS 180
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487
Ridge v Baldwin [1964] AC 40
Salemi v MacKellar (No 2) (1977) 137 CLR 396
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1 MURRAY J: I have had the advantage of reading in draft the judgment of Barker J. I agree with it and agree that the order nisi for certiorari should be discharged.
2 ROBERTS-SMITH J: I have read in draft the reasons of decision of Barker J and agree with those reasons and have nothing further to add.
BARKER J:
Introduction
3 The applicants seek to make absolute an order nisi for a writ of certiorari to quash an order dated 21 May 2002 made under the Residential Tenancies Act 1987 (WA) by Mr R Burton SM in the Small Disputes Division of the Local Court at Joondalup.
Background facts
4 At material times, the applicants owned premises at 51 Ellendale Drive, Heathridge, and rented them to Ms Jodie Greenhouse, Ms Kristie Wardlaw, Ms Terri-Lee Lockwood and Ms Brooke Somner (the tenants).
5 By an application made under the Residential Tenancies Act 1987 and dated 21 March 2002, and filed in the Small Disputes Division of the Local Court at Joondalup, the applicants sought orders against the tenants in respect of the premises in the following terms:
"(1) Vacant possession be acknowledged.
(2) Immediate release of bond to cover part of outstanding debt (see statement attached).
(3) Adjournment sine die for costs for cleaning & repairs.
(4) Tenants jointly or severally be ordered to start contribution towards expected cost for cleaning and repairs (estimated at $1000 to $1500 over and above bond)."
6 The application was lodged by Stephen Graham Fairhall, Senior Property Manager, of Century-21 Winning Realty, which firm, at material times, acted as the agent of the applicants.
7 The application came on for hearing before Mr R Burton SM in the Small Disputes Division of the Local Court on 17 May 2002. At the end
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of the hearing, the learned Magistrate made orders, which were formalised by the order dated 21 May 2002, in the following terms:
"(1) The residential tenancy agreement be terminated and the owners be entitled to vacant possession of the premises forthwith.
(2) In part satisfaction of the judgment amount, the security bond of $760 held by Century 21 REBA bond account BankWest Joondalup to be disposed of by payment of $468.40 to the owner and $292.60 to the tenant [sic]."
Ground of application
8 The applicants seek to quash that decision on the ground that the learned Magistrate failed to afford the applicants natural justice.
9 The applicants' application in this Court is supported by the affidavit of Mr Fairhall sworn 9 October 2002. To the extent that the affidavit purports to provide an account of the dealings between the applicants and their agent and the tenants and other persons prior to the hearing of the application before the learned Magistrate on 17 May 2002, it cannot be considered relevant to this application. Whether or not there occurred a denial of natural justice in the course of that hearing, must be assessed by reference to the terms of the application before the learned Magistrate and the manner in which the hearing was conducted.
10 In that regard, of primary importance is the transcript of the proceedings, which is attached to Mr Fairhall's affidavit, and certain other information or documents referred to in Mr Fairhall's affidavit that went into evidence in the course of the hearing. These documents include the relevant lease of the premises, a notice of termination for non-payment of rent dated 7 February 2002, a letter or note dated 11 February 2002 and signed by Brooke Somner, and a schedule or list of loss and damages or expenses claimed by the applicants for breach of the lease which was furnished by Mr Fairhall during the course of the hearing.
The hearing of the application in the Small Disputes Division
11 The application came on for hearing before the learned Magistrate on 17 May 2002.
12 Mr Fairhall appeared on behalf of the applicants, as he was entitled to do under the Residential Tenancies Act, and each of the tenants appeared in person. Ms Candy Somner (Ms Somner's sister), Ms Joanne
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- Ross (Ms Somner's mother) and Ms Greenhouse (Ms Jodie Greenhouse's mother) also attended the hearing.
13 The transcript of the proceedings before the learned Magistrate shows that he identified the various persons present at the hearing, including Mr Fairhall and the tenants. He asked the tenants whether they swore to tell the truth and it is plain enough that each said that she did.
14 Rather than take evidence from each tenant in turn, the learned Magistrate permitted the tenants to answer questions posed by him according to who was familiar with the matter raised. The transcript records both "Female Speakers" or a "Female Speaker" making statements or answers in response to his questions.
15 The hearing effectively commenced with the learned Magistrate asking:
"Can we agree on anything in this matter? The tenants were evicted for non-payment of rent. The property was found vacant, very messy and considered [sic] damage has been done. You agree that you've got to go, is that right? Or you dispute that?"
- The answer then recorded in the transcript is as follows:
"FEMALE SPEAKERS: We moved out when the lease was up.
FEMALE SPEAKER: We weren't evicted. We moved out of our own choice."
17 The question was then raised as to what had happened when the tenancy expired. A "female speaker", obviously one of the tenants, advised the Magistrate that the tenants had moved out when the lease expired and that certain male persons remained. A "female speaker", again obviously one of the tenants, told the Magistrate:
"I spoke to the real estate and signed papers saying that they could stay there."
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- The Magistrate was told that the real estate agent had accepted money from the male persons for rent.
18 Mr Fairhall told the Magistrate that the agent "didn't find out that there were two people staying there." This statement was obviously intended to dispute the tenants' account.
19 The question of the circumstances in which the tenancy had come to an end and whether or not the tenants had held over under the lease was plainly canvassed by the Magistrate in what may be described as an inquisitorial process, whereby the learned Magistrate sought to understand what had happened by questioning the tenants in particular.
20 The tenants suggested that they had given possession of the premises to two male persons with the consent of the agent. However, Mr Fairhall told the Magistrate he disagreed with that. The Magistrate noted the disputed evidence and observed:
"Like most good cases, I'll have to decide who I believe, I suppose, that's about where we're at."
21 The question of the need for cleaning and repairs to the premises was then raised. A "female speaker", again obviously one of the tenants, advised the Magistrate:
"We agreed to pay for, like, with carpet cleaning, because you have to when you move out of a rental, and two door knobs that were broken but we had rung and rung and rung to get maintenance to come and fix them and they weren't fixed, so there's nothing we could have done about it."
22 Mr Fairhall then advised the Magistrate that the total expenses were $2627.59.
23 At this point of the hearing the learned Magistrate appreciated that the application was not one that he could deal with quickly and that it would "take some time", especially in view of the expenses claimed. The hearing was adjourned for a short time while the Magistrate dealt with some other matters in his list. He then resumed the hearing.
24 When the Magistrate resumed the hearing, he recognised there was a question whether the lease had been "taken over by somebody else" apart from the tenants and whether or not the tenants were responsible for unpaid rent and other expenses claimed on behalf of the applicants. At that point he was provided with the schedule of expenses totalling
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- $2627.59. By reference to that document he proceeded to deal directly with the question first as to when the tenants vacated the premises and on what basis, as well as the particular items of expense set out in the schedule.
25 The Magistrate noted that he still had a problem in determining whether the lease had been taken over by somebody, apart from the tenants. That issue was again addressed by some of the tenants and also by Mr Fairhall. One of the tenants indicated that she had spoken to a woman at the office of the agent concerning the fact that they were vacating the premises.
26 Mr Fairhall told the Magistrate that, when he went to the premises in February, he discovered there were persons other than the tenants living there.
27 The question of the extent to which the house was clean or not was further discussed and the tenants, or some of them, appear to have insisted that they kept the house clean. At that point, some of the persons who had accompanied the tenants to the hearing spoke. Ms Somner's sister, Candy Somner, said the house was " … immaculate all the time. It was beautiful."
28 The tenants and Mr Fairhall continued to dispute the question whether the premises had been vacated with the knowledge and agreement of the agent. The Magistrate, at that point, stated:
"No, if it's a fixed term lease, that's the end of it. You go on the day."
- Mr Fairhall then said to the Magistrate:
"No, they haven't gone on the day, so therefore they continue on a periodic tenancy."
"We did go on the day. We came in and told the secretary and then we left."
30 The Magistrate again noted:
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- "If it's a fixed term lease, it expires on the day that the lease expires. That's the end of it. Game, set, match and rubber. If you hold over, it's a different ..."
31 At that point, Mr Fairhall insisted that the tenants had held-over, but it appears that the tenants continued to dispute his statement.
32 At that point, the Magistrate sought to understand what expenses had been incurred. The tenants agreed that they should meet certain expenses in respect of water consumption ($25.90 for the period 27 July to 24 October 2001) and carpet cleaning ($143).
33 A question concerning the need to change the locks on the premises by reason of the tenants' failure to return keys to the office, and the expense of so doing, was then raised. The tenants refused to acknowledge any such expense on that account.
34 However, the tenants agreed they were responsible for the cost of repair of a main bedroom door handle.
35 The tenants also agreed they were responsible for certain light globes (11 at $2.50 each, a total of $32.50 [sic]). They otherwise disputed an allegation that the light fittings were not in order when they left the premises.
36 The tenants told the Magistrate about various expenses they had incurred in repairing things in the house.
37 Mr Fairhall, at that point, said to the Magistrate:
"Can I just request that maybe we resolve the issue of when their tenancy ended and on what grounds they're responsible? Because maybe that might clear up where some of the responsibility lies."
- The learned Magistrate appears to have agreed to that course.
38 The tenants then agreed that they had moved out of the premises six days later than the fixed date and so left on 27 January 2002.
39 Mr Fairhall then referred to the holding-over provision in the tenancy agreement which required rent to be paid at $190 per week. He also referred to the covenant against assignment or sub-letting in the agreement. That invoked further disputation from the tenants. They asserted the agent had accepted rent from the male persons.
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40 The hearing continued in such a vein. It was, as noted earlier, in the nature of an inquisitorial process. It also seems to have followed a course whereby the learned Magistrate sought to achieve not only clarity, but also consensus as to certain facts and as to what expenses the parties should each be responsible for now that the tenants were no longer in possession of the premises.
41 The learned Magistrate then reached the point where he stated:
"I've come to this conclusion, now it's my turn. I've had a chat about it all."
- The learned Magistrate then stated as follows:
"HIS WORSHIP: Part of the difficulty is that proper records have got to be kept by the person whose property is organised. I would have thought there's a breakdown in communications. They've said some things to your agents, which you haven't been told. But that's not their problem. I think it's your problem. They've sworn that they've contacted.
What I do is this. You get the water $25.90, the carpet $143, the water $72 of that second account, you get the door handle $145, you get $50 for the other door, you get $32.50 for the globes, you get $190 for the rent because you stayed an extra week."
"Okay, well, we'll pay it then. That's fine."
- The Magistrate referred to the rent statements before him and then stated:
"I'll just see what the rent statements tell me. Here's rent, this shows rent from, rent to, debit, credit, it looks like they paid rent about the 18th of - - rent from the 29th of January to the 11th of February."
"It looks like it's all paid to me."
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44 Following some further exchange between a "Female Speaker" and Mr Fairhall concerning when rent was paid and not paid, the learned Magistrate stated his conclusion and order in relation to the matter.
45 The Magistrate concluded the proceedings by making the following statement, which eventually led to the formal order dated 21 May 2002:
"I find that the rent has been paid up to date, that leaves - - that totals then, those figures are, enumerate a total of $468.40. I take the $468.40 from the 760 and I order the landlord to pay you, to be disposed of by payment to the owner, that's 468 - - 468.40 and to the tenant 292.60. That comes out - - the tenant paid that, that comes out, that stays in, and that comes out. I've signed that and that's the best I can do in the circumstances where not all the proper information is before me. You get $292.60 back. And you keep the rest. Yes, thank you. That there is the matter, thank you. That's the last matter on the list. You can have those back. Thank you."
46 The order dated 21 May 2002 reflects this determination of the application before the Magistrate.
Nature of proceedings under the Residential Tenancies Act 1987
47 Applications under the Residential Tenancies Act 1987 must be heard and determined by a Magistrate sitting in the Small Disputes Division of a Local Court as provided by Part VIB of the Local Courts Act 1904 (WA): see s 12 of the Residential Tenancies Act 1987 and s 106Q(1)(b) of the Local Courts Act 1904.
48 The jurisdiction of the Small Disputes Division of the Local Court in relation to such applications was created in 1987 and is exercisable in accordance with the relevant rules of court regulating the practice and procedure of a Magistrate sitting in that division of the Local Court: s 106Q(2); s 106Q(6), Local Courts Act 1904. However, there do not appear to be any such rules.
49 The Small Disputes Division of the Local Court is intended to facilitate the quick and informal resolution of actions for small debts and related matters. For example, s 106I(1) of Part VIA of the Local Courts Act 1904 provides that the primary function of the Court hearing an action for a small debt is to attempt to bring the parties to the action to a settlement acceptable to all the parties and the Court may, at any stage of
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- the proceedings, do all such things and take all such steps as it considers to be appropriate for that purpose.
50 By s 106I(2), where it appears to the Court hearing an action for a small debt to be impossible to attain a settlement acceptable to all the parties, the Court shall proceed with the hearing and determination of the action.
51 By s 106I(3), anything said or done by a party for the purpose of attempting to attain a settlement in an action for a small debt shall be deemed to be said or done without prejudice to any evidence or submission which he has adduced or made, or which may subsequently adduce or make, in or in respect of the proceedings, and the saying or doing of that thing shall not disqualify the Stipendiary Magistrate constituting the Court from sitting to hear the action or continue to hear the action, as the case may require.
52 At the hearing of an action for a small debt, or during any attempt to settle the action, a party shall not be entitled to be represented by an agent unless the Court considers that an agent should be permitted to that party as a matter of necessity and approves accordingly: s 106L(1).
53 It is also plain that, as far as possible, the proceedings in the Small Disputes Division should be final. In that respect, s 106N makes provision concerning appeal or judicial supervision of determinations made by the Court in the Small Disputes Division, in these terms:
"(1) Where in an action for a small debt a settlement is brought pursuant to s 106I or an order or judgment is made or given by the court, the settlement, order or judgment shall be final and binding on all parties to the action, and no appeal shall lie in respect thereof.
(2) Subject to subsection (3), no -
(a) writ of certiorari, or prohibition, or other prerogative writ;
(b) summons, rule or order under section 115; or
(c) declaratory judgment
shall issue or be served, made or given in respect of an action for a small debt or in respect of an order or judgment made or given therein.
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- (3) Subsection (2) does not prevent the service, making or giving of a writ, summons, rule, order or judgment mentioned in paragraph (a), (b) or (c) of that subsection if the court before which it is sought is satisfied -
(a) that an action, or an order or judgment made or given in an action, involves matter beyond the jurisdiction of the stipendiary magistrate sitting in the Small Disputes Division of the Local Court; or
(b) that there has occurred in an action a denial of natural justice to a party therein."
55 However, various provisions of the Residential Tenancies Act 1987 reflect the same legislative intent that applications made under the Act should be determined quickly and informally in the Small Disputes Division of the Local Court.
56 For example, by s 20(a) of the Residential Tenancies Act 1987, a Magistrate hearing any application in the Small Disputes Division may hear the application "in such manner as he considers best suited to the purposes of this Act".
57 By s 21, in any proceedings, the Magistrate shall not be bound by the rules of evidence "but may inform himself upon any matter relating to the proceedings in such manner as he thinks fit".
58 By s 22, except as provided in the section, a party to any proceedings shall present "his own case and not be represented or assisted in the presentation of his case by another person". However, a party may be represented by an agent in certain circumstances.
59 By s 23, the Magistrate is authorised to engage in settlement discussions privately with the parties and endeavour to bring about a settlement of the proceedings on terms that are fair to all parties. Nothing said or done in the course of any attempt to settle proceedings may
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- subsequently be given in evidence in any proceedings. The Magistrate is not disqualified from hearing or continuing to hear the proceedings if this course is followed.
60 Section 26 of the Residential Tenancies Act 1987, like s 106N of the Local Courts Act 1904, is intended to make the proceedings in the Small Disputes Division final. It provides:
"(1) An order made by a Magistrate under this Act … is final and binding on all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof.
(2) No writ of certiorari, or prohibition, or other prerogative writ shall issue and no declaratory judgment shall be given in respect of proceedings taken or to be taken under this Act before a magistrate … in respect of any order made therein unless the court before which such writ or judgment is sought is satisfied that the magistrate … had or has no jurisdiction conferred by or under this Act to take the proceedings or that there has occurred therein a denial of natural justice to any party to the proceedings."
The question of "denial of natural justice"
61 The rules of natural justice - or procedural fairness as they are often called today - have been developed to ensure that fair decision-making procedures are followed by decision-makers. In this case, by reason of s 26 of the Residential Tenancies Act 1987, Parliament permits this Court to quash a decision of a Magistrate in the Small Disputes Division of the Local Court only if the Magistrate has no jurisdiction to take the proceedings or there has occurred a denial of natural justice to any party to the proceedings. There is no general right of appeal against a decision of the Magistrate because it may be wrong in fact or law.
62 It is well-established that the exclusion of the prerogative writs by s 26 of the Act cannot be negated by dressing up an error of law or an error of fact as a denial of natural justice: R v Small Claims Tribunal; Ex parte Amos [1978] Qd R 127; Alvaro v Fraser & Downsborough Designers Pty Ltd (1990) 20 ALD 762.
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63 The rules of natural justice have two substantive requirements: first, that a decision-maker give an opportunity to be heard to a person whose interests will be affected adversely by the decision; and, secondly, that the decision-maker be a person who is disinterested or unbiased in the matter to be decided. These two rules are called respectively the "hearing rule" and the "bias rule". It is sometimes suggested there is a third rule required by natural justice - the "no evidence" rule - which requires that the decision be based upon logically probative evidence. See, for example, the grounds for review available under the Administrative Decisions (Judicial Review) Act (Cth), s 5(1)(h), s 5(3), and s 6(1)(h), s 6(3). However, the third suggested rule is not universally acknowledged to be part of the general law of natural justice. In this application, we are only concerned with the hearing rule.
64 It is accepted that the hearing rule is not rigid and that it is necessary to have regard to the particular legislative framework in which a decision must be made in order to determine whether the procedure adopted by a decision-maker is fair in the circumstances of the case. As Mason J said in Kioa v West (1985) 159 CLR 550, at 584 - 585.
"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting."
65 The content of hearing rule was explained by the Full Court of the Federal Court of Australia in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 591 - 592, in terms recently referred to with approval by Gleeson CJ, Gummow and Heydon JJ in a joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; [2003] HCA 56, at [22]:
"Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its
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- nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."
- See also the discussion of the general principles relating to the hearing rule in Hall v University of New South Wales [2003] NSWSC 669 per McClellan J at [66] - [76]; and Canellis v Slattery (1994) 33 NSWLR 104 per Kirby P at 119 - 120.
66 While this statement of principle is designed particularly to deal with the exercise of a statutory power by a public official, the substance of it is also relevant to the exercise of jurisdiction by a Magistrate in the Small Disputes Division of the Local Court when hearing and determining an application made under the Residential Tenancies Act 1987.
67 So, by way of example, for a Magistrate in the Small Claims Tribunal to receive a report from an assessor but not provide the parties to the application before him with an opportunity to make submissions about it involves a denial of natural justice: Errington v Burton [2003] WASC 195.
68 In the instant case, the lease of the premises was concluded on 24 July 2001. An express term of the lease was that it was for a fixed term of 26 weeks, commencing on 24 July 2001 and expiring on 21 January 2002. Other express terms of the lease were as follows:
(1) A weekly rent of $190 was payable in advance on the Tuesday of each week, with the first adjusted payment to be made on or before 7 August 2001.
(2) If the tenants, with the consent of the agent, remain in possession after the expiration of the term, they shall remain as a periodic tenant at a reviewed rent which shall not be less than $190 per week, but otherwise subject to all the terms and conditions of the agreement.
(3) The tenants shall not assign, sublet or part with possession of the premises or any part thereof or grant any licence to occupy the whole or any part.
(4) The tenants are aware that, upon vacation of the premises, rent is payable until all keys are returned to the office. If
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- keys are not returned, the tenants agree to accept responsibility for the expense of a locksmith to replace locks and keys.
69 The lease expired on 21 January 2002.
70 In his affidavit in support of the application before this Court, Mr Fairhall states that it was his submission on behalf of the owners that:
(1) the tenants had remained in possession after the expiration of the term on 21 January 2002;
(2) the tenants did not have authority to sublet the property, but had done so;
(3) two rental payments for the period of rent subject to the holding-over period were received and credited to the tenants;
(4) the keys for the premises were never returned, but possession was deemed to be taken on 19 March 2002;
(5) the total amount outstanding under the agreement was $2627.59.
- The transcript of proceedings does not show that Mr Fairhall expressly put those submissions to the Magistrate in opening the applicant's case or later. However, it seems to me he did put the substance of these submissions in the course of the hearing.
71 The applicants, through Mr Fairhall, now complain that, at the hearing the Magistrate, perhaps because he was "interrupted and side-tracked by one of the tenants raising a different issue", failed to consider "a fundamental issue" of when the tenancy had formally ended in order to determine the tenants' liability under the agreement.
72 While it is clear that each of the tenants and some family members attended the hearing, there is nothing in that fact which invalidates the hearing process undertaken by the learned Magistrate.
73 As noted, the terms of the Residential Tenancies Act 1987 encourage a Magistrate, in dealing with applications in the Small Disputes Division of the Local Court, to undertake a form of hearing that best suits the purposes of the Act. A Magistrate is not bound by the rules of evidence and may inform himself upon any matter in such manner as he thinks fit.
74 For this reason, nor does the manner in which the Magistrate swore in the tenants and received information from them, and the relatives of
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- some of them, of itself involve any denial of natural justice. The Magistrate plainly considered the manner of proceeding he adopted to be a convenient way of getting to the heart of the matters in dispute.
75 The question is whether the Magistrate provided the applicants' agent a proper opportunity to address the questions raised by the applicants' application dated 21 March 2002.
76 As noted, the application required vacant possession to be acknowledged, immediate release of the bond to cover part of an outstanding debt (particulars of which were provided with the application), an adjournment of the application to enable the costs for cleaning and repairs to be claimed, and for the tenants to be required to pay for the cost of cleaning and repairs. By the time of the hearing, the cleaning and repairs to the premises had been effected and the costs were known and advised to the Court by the agent of the applicants in the schedule.
77 The Magistrate directly addressed the question whether vacant possession should be acknowledged. He accepted and understood that it was necessary to determine whether there had been a holding-over on a fixed term tenancy agreement. He accepted that the tenants could be required to meet the costs of proper cleaning and repair expenses. He also understood that the bond the tenants had earlier paid could be applied to meet any outstanding costs they were obliged to pay. The claim for "outstanding debt" which was particularised before him in the schedule included an amount said to be payable on account of unpaid rent as of 19 March 2002.
78 Mr Fairhall, on behalf of the applicants, now complains that the Magistrate failed to find that rent was payable up until 11 May 2002, when the locks on the rental property were changed by the owner.
79 The burden of the argument put on behalf of the applicants is that the Magistrate failed to make a legal determination as to the period for which the tenants were liable to pay rent under the agreement.
80 In my view, it is not at all clear that the Magistrate failed to make such a finding. The applicants' agent claimed unpaid rent to 19 March 2002. At the conclusion of the hearing, the Magistrate made a positive finding that rent had been paid "up to date" and he dealt expressly with the question of other expenses by way of repairs and the like for which the tenants should be considered responsible by quantifying the amount for
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- which the tenants were responsible. He then made an order which required that a portion of the bond be paid to the applicants' agent.
81 It may be said that the reasoning process by which the Magistrate determined the order he should make is not expressed as clearly as it might have been; however, that he in fact made a determination of the matters in issue is clear.
82 The failure to express reasons adequately is not, in itself, in any event, a denial of natural justice for the purposes of a provision such as s 26 of the Residential Tenancies Act 1987: Alvaro v Fraser& Downsborough Designers Pty Ltd (supra).
83 Mr Fairhall also says that he had intended to make a submission that, under s 77 and s 78 of the Residential Tenancies Act 1987, the rent payable by the tenants was payable up until 11 May 2002, when the locks were changed by the owner.
84 Section 77 of the Residential Tenancies Act 1987 provides that:
"(1) Where the owner under an agreement believes that the tenant has abandoned the premises, the owner may apply to a magistrate sitting in the Small Disputes Division for an order declaring that the tenant has abandoned the premises.
(2) A Magistrate may, upon application by an owner under this section, declare that the premises were abandoned by the tenant on a day specified by the magistrate and the tenant shall be deemed to have abandoned the premises on that day."
85 Section 78 of the Residential Tenancies Act provides that:
"(1) Where a tenant under an agreement abandons the premises, the owner shall be entitled to compensation from the tenant for any loss (including loss of rent) caused thereby, but shall take all reasonable steps to mitigate such loss and shall not be entitled to compensation in respect of any loss that could have been avoided thereby.
(2) A magistrate sitting in the Small Disputes Division may, upon application by the owner, order the tenant to pay to
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- the owner any compensation to which the owner is entitled under this section."
86 Not only is the reference to 11 May 2002 inconsistent with the claim by Mr Fairhall that rent was due to 19 March 2002, but it should also be noted that the application made by the agent on behalf of the applicants did not seek an order declaring that the tenants had abandoned the premises. Indeed, the evidence adduced by Mr Fairhall was inconsistent with abandonment. He claimed, both in his statements to the learned Magistrate and in his affidavit in support of this application, the tenants held over after expiration of the tenancy and were responsible for rent until 19 March 2002.
Conclusion and order
87 In this case, it seems to me that the learned Magistrate embarked upon the proper determination of an application made by the applicants under the Residential Tenancies Act 1987. He considered the relevant issues identified by Mr Fairhall on behalf of the applicants at the outset of the hearing. He received evidence on oath from the tenants and other persons and also heard from Mr Fairhall concerning the matters put in issue by the application. To the extent that he failed to make a determination that accorded with the applicants' agent's submissions as to what should be determined, having regard to the terms of the tenancy agreement and the facts adduced in evidence, the learned Magistrate may possibly have made some errors of fact or law. However, as explained, a writ of certiorari cannot go for an error of fact or law made by a Magistrate in the determination of an application under the Residential Tenancies Act 1987, whether it be an error on the face of the record or not. Certiorari can only go if the Magistrate did not have jurisdiction to deal with the matter (which plainly here, he did), or he denied natural justice to the party who now complains of that denial. An error of fact or law cannot be dressed up as a denial of natural justice. Such a ground attempts to negate the exclusion of any right of appeal in relation to such a determination.
88 In all the circumstances, the learned Magistrate plainly had jurisdiction to determine the application before him and, whether or not he got his determination wrong, I am not satisfied that he denied the applicants' agent natural justice in making his determination.
89 For these reasons, I would discharge the order nisi.
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