Re Magistrate Hogan;
[2002] WASC 186
RE MAGISTRATE HOGAN; EX PARTE BEMPASCIUTO [2002] WASC 186
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 186 | |
| Case No: | CIV:1372/2002 | 19 JULY 2002 | |
| Coram: | McKECHNIE J | 26/07/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | FRANCESCO BEMPASCIUTO |
Catchwords: | Small claims Error on face of record What constitutes "record" Application for certiorari Confined by statute |
Legislation: | Small Claims Tribunal Act 1974 (WA) |
Case References: | R v Compensation Court of Western Australia; Ex parte State Planning Commission; Re Della-Vedova (1990) 2 WAR 242 Craig v South Australia (1995) 184 CLR 163 Mahony v Industrial Registrar of NSW (1986) 8 NSWLR 1 Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196 Re Capobianco; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998 Re Matthews; Ex parte MacKenzie [2000] WASC 147 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
FRANCESCO BEMPASCIUTO
Applicant
Catchwords:
Small claims - Error on face of record - What constitutes "record" - Application for certiorari - Confined by statute
Legislation:
Small Claims Tribunal Act1974 (WA)
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms M L F Lee
Solicitors:
Applicant : Summers Partners
Case(s) referred to in judgment(s):
R v Compensation Court of Western Australia; Ex parte State Planning Commission; Re Della-Vedova (1990) 2 WAR 242
Case(s) also cited:
Craig v South Australia (1995) 184 CLR 163
Mahony v Industrial Registrar of NSW (1986) 8 NSWLR 1
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196
Re Capobianco; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998
Re Matthews; Ex parte MacKenzie [2000] WASC 147
(Page 3)
1 McKECHNIE J: This is an application for an order nisi directed to the referee of the Small Claims Tribunal arising from an order made by that Tribunal in respect of a dispute over a motor vehicle.
2 The application for an order nisi was filed on 22 March 2002 and adjourned on that date to 24 April 2002 when White AUJ ordered that the matter be adjourned to a special appointment to be fixed and that the minute of amended notice of motion was to stand as the notice of motion.
3 On 27 March 2002, the applicant's solicitors received a copy of the referee's decision.
4 No satisfactory explanation was advanced as to why the decision was not put before White AUJ, nor why an affidavit annexing the reasons was not filed until the day before the hearing of the special appointment.
The claim before the referee
5 On 9 October 2001 the claimant lodged a claim in relation to a Hilux Surf motor vehicle purchased from Mr Bempasciuto. His case was that the vehicle's odometer had been wound back 40,000 kms at some time prior to the purchase of his vehicle on 8 June 2001. The referee accepted that the odometer reading was false and on 8 November 2001 made a finding that the odometer reading was falsely represented to be 55,599 kms when it was in fact 95,599 kms.
6 The claim was then adjourned to enable the claimant to provide evidence as to the difference between the market value of the vehicle at 95,599 kms as opposed to 55,599 kms and also to provide evidence as to the cost or relevant repairs.
7 When the matter came back before the referee on 6 March 2002, Mr Bempasciuto tried to make submissions that the vehicle was sold in good faith and that he had no input into any alteration of the odometer reading. The referee refused to allow these submissions on the basis that she had determined the issue as to the falsity of the odometer reading at the initial hearing on 8 November 2001 and declined to allow the applicant to reopen the issue on the hearing to establish the quantum of the claim.
8 She determined the appropriate amount of compensation was $3550 which comprised:
(Page 4)
- (a) $3000 on the basis that the claimant was entitled to a refund of the difference between the purchase price and the vehicle's actual value;
(b) $220 for replacement of solenoid contacts, and
(c) $330 for replacement of cam belt drive.
The grounds of the application for the writ of certiorari
9 In the amended motion now standing as the grounds, the applicant seeks relief by way of certiorari on seven grounds which may be paraphrased as follows:
• The referee made an error of law on the face of the record in that she failed to appreciate that the representation was purely an innocent misrepresentation for which damages were not available as a remedy because it was purely innocent and neither fraudulent nor negligent;
• It is then claimed there were errors of law in relation to the referee's consideration of the evidence including the fact that she failed to take into account the applicant's evidence that he imported the vehicle from Japan and it was not possible for him to determine whether the odometer had been tampered with, that she failed to question as to when the odometer had been tampered with, that she placed improper weight on the evidence of a witness and a report.
• Finally, the referee made an error of law when she failed to take into account the fact that the complainant had received notice of a possible tampering of the odometer prior to the purchase of the vehicle, yet he chose to complete the purchase without raising his suspicions with the applicant.
10 In an affidavit in support of the application, the applicant asserts:
"I allege that there has been a denial of natural justice insofar as I was not able to put forward my case as I should have been able to."
11 However, the application does not assert a breach of the rules of natural justice, the application having been expressly amended to delete such a claim. The only relevant material is therefore in the brief outline of proceedings before the referee as deposed to by his affidavit, and the referee's reasons for decision.
(Page 5)
The record of the Tribunal
12 In her submissions, counsel for the applicant asserts that:
"… the Small Claims Tribunal has made an error of law which is apparent on the face of the Tribunal's record. There are two requirement (sic):
(a) that the Tribunal has made an error of law;
(b) that error of law is apparent on the face of the Tribunal's record."
13 The record of the Small Claims Tribunal is defined by the statute, s 14:
"14. Records of tribunals
(1) Notwithstanding anything to the contrary provided by or under any Act, rule, or practice, an official record of evidence given before a Small Claims Tribunal shall not be made in any case but the referee who constitutes the tribunal is entitled to make such notes of evidence as he requires.
(2) Notes of evidence made by the referee shall not form part of the record of the reference to the tribunal.
(3) The record of a Small Claims Tribunal shall consist of —
(a) the claim referred to it, as completed by the claimant;
(b) the notation of the nature of the issue in dispute as determined and recorded by the tribunal during the hearing of the claim; and
(c) the order made by the tribunal.
(4) The record of a Small Claims Tribunal kept in the registry shall be open for inspection free of charge by —
(Page 6)
- (a) the parties to the proceeding to which the record relates; and
(b) the Commissioner for Fair Trading,
- and shall be available for production before a Judge of any court for the purposes of any proceeding before him or the court."
14 The Small Claims Tribunal Act provides for reasons to be given. By s 34A it is provided that:
"Written reasons for orders
A tribunal may give reasons in writing for the order made by the tribunal resolving the issue in dispute in a proceeding before the tribunal and, if so requested by a party to the proceeding not later than 30 days after the order is made, the tribunal shall do so."
15 It is undoubted that in certain circumstances the reasons of a tribunal may form part of the record: R v Compensation Court of Western Australia; Ex parte State Planning Commission; Re Della-Vedova (1990) 2 WAR 242.
16 However, in the case of the Small Claims Tribunal, the Act has exhaustively defined the record which does not include the written reasons for decision: s 14(3).
17 The basis of exclusion of the reasons for decision from the formal record can be seen by the nature of the Small Claims Tribunal's jurisdiction. It has exclusive jurisdiction over small claims where a matter has been referred to it.
18 Furthermore, by s 18:
"Proceedings of tribunals final
A settlement or an order made by a Small Claims Tribunal shall be final and binding on all parties to the proceeding in which the settlement or 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 settlement or order is made, and no appeal shall lie in respect thereof."
(Page 7)
19 The scheme is that small claims shall be determined with a minimum of expense (lawyers are generally not allowed), a minimum of formality (the taking of sworn evidence is not mandatory) and in a summary way. No appeal is possible.
20 There may be occasions when the reasons of the referee have relevance to an application for a writ of certiorari as they may expose whether the referee exceeded jurisdiction or failed to comply with the rules of natural justice. However, the reasons are not part of the Tribunal's record. In fact, no part of the Tribunal's record has been put before this Court by the applicant.
21 There is therefore no evidence that the referee has made an error on the face of the record in relation to whether the misrepresentation was innocent or otherwise as set out in grounds 1 and 2 of the application.
22 Furthermore, grounds 3, 4, 5, 6 and 7 are not in any event "errors of law". If they are anything, they are asserted to be errors of fact. This is amply illustrated by grounds 5 and 6 which complain of the weight placed on certain evidence.
The nature of an application for certiorari against the Small Claims Tribunal
23 In any event, I conclude that the grounds for the application are misconceived.
24 This Court's jurisdiction to supervise the Small Claims Tribunal by way of prerogative writs is confined by s 19 which provides:
"Immunity from judicial supervision
No writ of certiorari, or prohibition, or other prerogative writ shall issue, and no declaratory judgment shall be given in respect of a proceeding taken or to be taken by or before a Small Claims Tribunal or in respect of any order made therein unless the court before which such writ or judgment is sought is satisfied that the tribunal had or has no jurisdiction conferred by this Act to take the proceeding or that there has occurred therein a denial of natural justice to any party to the proceeding."
25 A traditional "error on the face of the record" basis for a writ of certiorari is insufficient to give jurisdiction to this Court to intervene.
(Page 8)
26 The jurisdiction under the Act is relevantly set out in s 16(1):
"Jurisdiction
(1) Subject to this Act, a Small Claims Tribunal has, on and after the appointed day, jurisdiction with respect to any claim referred to it that is a small claim, whether the contract out of which it arises was made before or after the appointed day, but does not have jurisdiction with respect to such a claim if the issue in dispute in that claim arose earlier than 2 years before the day on which the claim was referred to a Small Claims Tribunal."
27 There is no allegation that the claim made against the applicant was not a "small claim" as defined under the Act, or that the issue in dispute arose earlier than two years before the day on which the claim was referred to the Tribunal.
28 There is therefore no challenge to the "jurisdiction conferred by the Act to take the proceeding."
29 As I have previously indicated, no allegation of a denial of natural justice is now pursued.
30 In these circumstances the applicant has failed to persuade me that there is an arguable case for an order nisi for a writ of certiorari and the application is therefore dismissed.
0
5
0