Re Magistrate T Darge; Ex parte Bajaj
[2023] WASC 5
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE MAGISTRATE T DARGE; EX PARTE BAJAJ [2023] WASC 5
CORAM: ARCHER J
HEARD: 25 OCTOBER 2022
DELIVERED : 20 JANUARY 2023
FILE NO/S: CIV 1448 of 2022
MATTER: An application under the Magistrates Court Act 2004 section 36 for a review order against Trevor Gordon Darge of the Magistrates Court at Perth
EX PARTE
RAMESH BAJAJ
Applicant
Catchwords:
Review of a magistrate's decision - Jurisdictional error - Residential Tenancies Act - Natural justice
Legislation:
Nil
Result:
Limited review order made
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
Solicitors:
| Applicant | : | Not applicable |
Case(s) referred to in decision(s):
Ashwin v Housing Authority [2019] WASC 144
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Rayney v AW [2009] WASCA 203
Re Bajaj; Ex Parte Bajaj [2021] WASC 335
Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357
Re Magistrate G Benn; Ex parte Gething [2019] WASC 380
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
ARCHER J:
Introduction
The applicant, Mr Bajaj, entered into a written residential tenancy agreement with Mr and Ms Pekin (the tenants) in relation to Mr Bajaj's property in Shenton Park. The agreement was for a three-year period expiring 24 November 2019.
On 6 March 2019, before that period expired, the tenants notified Mr Bajaj that they needed to terminate the lease and that the property would be vacated by 18 April 2019.[1] The tenants vacated the property on that date and paid rent to 21 April 2019. On 13 May 2019, the property was re-let (at a slightly higher rental).
[1] Affidavit of Ramesh Bajaj sworn 8 May 2022 (Applicant's Affidavit) attachment RB8 page 8. While the pages of the Applicant's Affidavit and accompanying attachments are numbered consecutively, they appear to have been numbered by hand. Where I refer to an attachment of the Applicant's Affidavit, I will refer to the page number of the individual attachment, rather than the page numbers spanning the entire document.
Mr Bajaj brought proceedings in the Magistrates Court claiming compensation of just under $4,000[2] (Claim), pursuant to the Residential Tenancies Act 1987 (WA). The claim comprised two components. First, damage was said to have been caused by the tenants during the course of their tenancy (Damage Component). Second, amounts were said to have been payable by the tenants to Mr Bajaj following their vacation of the premises during the lease term (Tenancy Component).[3]
[2] Applicant's Affidavit attachment RB1. (The Claim included a component of $2,100 which, it later transpired, Mr Bajaj did not seek. The remaining components totalled $3,971.94.) See also Magistrates Court transcript 28 June 2021 (June 2021 Transcript) pages 7 - 8, and Magistrates Court transcript 27 October 2021 (Trial Transcript) pages 4 and 169 - 170.
[3] Transcript of the learned magistrate's oral reasons given on 9 November 2021 (Magistrate's Reasons) page 3.
The proceedings were heard by his Honour Magistrate Darge, on 27 October 2021. On 9 November 2021, his Honour awarded Mr Bajaj part of what he had sought in his Claim. His Honour also awarded the tenants part of their disbursements in defending the Claim. His Honour made orders as to how the security bond was to be distributed to reflect those awards (Decision).
Mr Bajaj sought a review order in this Court in relation to the Decision under s 36 of the Magistrates Court Act 2004 (WA) (Review Application). However, in his submissions in relation to the Review Application, Mr Bajaj said that he did not want a review order and instead sought that he be given leave to appeal against the Decision and that the appeal be heard by the Court of Appeal (Appeal Orders).
As I will explain, the application for the Appeal Orders was misconceived. However, and despite Mr Bajaj saying that he did not want a review order, I will still consider whether I should make a review order. This is because it seems that at least part of the reason that Mr Bajaj wanted the Appeal Orders was because he mistakenly believed that a review order could not be made in relation to a decision that had been made outside of jurisdiction.[4]
[4] See, for example, ts 7 - 9, 12 - 13, 24, 26 - 31.
As will be seen, I consider that I should make a review order in relation to two specific matters. Both matters relate to communications between the Magistrates Court and the tenants. The content of the communications was innocuous, being evidence and supporting documentation in relation to the Claim and costs incurred. However, it appears that Mr Bajaj may not have been privy to those communications.
This raises the possibility that Mr Bajaj was denied procedural fairness. Of course, it may be that Mr Bajaj was in fact privy to them, or was provided with them separately. There may also be some other explanation for those communications. This is an ex parte application, and I have not heard from anyone other than Mr Bajaj. Further, I only have the materials he chose to put forward. However, on the material currently available to me on this ex parte application, there appears to be an arguable case that Mr Bajaj was denied procedural fairness in these two respects.
Legal Framework
Review Orders[5]
[5] The following summary of legal principles draws from my decision in Re Magistrate G Benn; Ex parte Gething [2019] WASC 380.
Section 36 of the Magistrates Court Act is a statutory judicial review power.[6] Section 36(1) provides:
[6] Rayney v AW [2009] WASCA 203 [27].
(1)If a person is or would be aggrieved by one or more of the following ‑
(a)the failure of a Court officer to do any act or make any order or direction ‑
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
A review order can only be made if the applicant establishes an arguable case that an error of the type identified in s 36(1)(a), (b) or (c) was made. To fall within s 36(1), the error must be either a jurisdictional error,[7] or it must be an error of law on the face of the record.[8]
[7] As to which see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J) and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
[8] Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357. See also Rayney [27] ‑ [34] and Ashwin v Housing Authority [2019] WASC 144 [3] ‑ [9].
In Bajaj v Magistrate Trevor Darge[9] (Bajaj 2021), the Court of Appeal discussed the concept and nature of a jurisdictional error. The Court of Appeal said (citations omitted):[10]
The concept of jurisdictional error was described in the following terms by Hayne J in Re Refugee Review Tribunal; Ex parte Aala:
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
This passage was quoted with approval by the plurality in Kirk v Industrial Court (NSW), and applied by this court in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum.
It is more difficult to demonstrate jurisdictional error on the part of an inferior court than in the case of an administrative decision‑maker. Generally speaking, unlike administrative decision-makers, inferior courts have jurisdiction to decide questions of law, including the proper construction of a statute, and to do so incorrectly.
While the categories are not closed, the following five categories of jurisdictional error in respect of inferior courts and analogous bodies are well established:
First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied ([...] a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
Another category is where the decision is made in breach of natural justice.
[9] Bajaj v Magistrate Trevor Darge [2021] WASCA 218 (Bajaj 2021). Although involving the same applicant as in this case, the proceedings related to a dispute with different tenants.
[10] Bajaj 2021 [50] - [54].
The procedure for making, and in relation to, an application under s 36(1) is set out in O 56A of the Rules of the Supreme Court 1971 (WA).
If a review order is made, and if at the hearing of the review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, the Court may:[11]
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
The Residential Tenancies Act 1987
[11] Section 36(4) of the Magistrates Court Act.
The Residential Tenancies Act 1987 (WA) regulates the relationship of lessors and tenants under residential tenancy agreements.
The Magistrates Court has exclusive jurisdiction to determine applications made under the Residential Tenancies Act.[12] By s 14, proceedings under that Act shall be heard and determined wherever practicable within 14 days after they are instituted and, where that is not practicable, as expeditiously as possible. The court hearing the application may proceed in such a manner as it considers best suited to the purposes of the Act.[13] The court is not bound by the rules of evidence.[14]
[12] Section 12A of the Retail Tenancies Act.
[13] Section 20(a) of the Retail Tenancies Act.
[14] Section 21 of the Retail Tenancies Act.
Section 26 of the Residential Tenancies Act provides as follows:
(1)An order made by a court 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 declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.
(3)This section applies despite Part 7 of the Magistrates Court (Civil Proceedings) Act 2004.
On its face, s 26(2) of the Residential Tenancies Act appears to confine the grounds upon which an application can be made under s 36 of the Magistrates Court Act. In Bajaj 2021,[15] the Court of Appeal said it was not necessary to decide whether the principle espoused by the High Court in Kirk v Industrial Court of New South Wales[16] might affect such a construction of s 26(2) of the Act. This was because the Court considered that the appellant's application for leave to appeal could be determined on the assumption, favourable to the appellant, that it was sufficient for him to establish, to the required threshold, jurisdictional error on the part of the magistrate.
[15] Bajaj 2021 [49].
[16] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [99] ‑ [100].
It is similarly unnecessary in this case. As will be seen, I consider that the only arguable instances of jurisdictional error relate to a denial of natural justice.
I will set out other relevant provisions of the Residential Tenancies Act in the discussion of the grounds.
The Magistrates Court proceedings
Later, I will set out Mr Bajaj's grounds of review. In light of those grounds, it is only necessary to summarise the Magistrates Court proceedings in relation to the Tenancy Component.
In the Tenancy Component of his claim, Mr Bajaj claimed the cost of advertising for the re-letting of the property, a portion of a water bill, and rent from the date on which the tenants had ceased to pay (21 April 2019) to the date on which it was re-let (13 May 2019), a period of three weeks.
Advertising costs
Mr Bajaj claimed a total of $306.42 for the advertising costs and part of a water bill. The total sum was not apportioned as between the advertising costs and water bill. However, it appears from the materials filed by Mr Bajaj that the advertising costs were $200.[17]
[17] Applicant's Affidavit attachment RB4 page 123.
The tenants accepted responsibility for some portion of the advertising costs. However, the magistrate accepted that the lease had been in place for almost three years and was soon to expire. While the need for Mr Bajaj to pay advertising costs was brought forward, the costs would have been incurred in any event. Accordingly, the magistrate awarded a small part of the amount Mr Bajaj sought.[18]
[18] Magistrate's Reasons pages 5 and 9.
The magistrate noted that whether, and the extent to which, the tenants were required to pay for the water bill turned on whether they were responsible for the rent payments sought by Mr Bajaj.[19]
Rent claim
[19] Magistrate's Reasons page 6.
Mr Bajaj claimed $1,575, being three weeks of rent at $525 per week, which was said to be payable by the tenants. The three-week period ran from when the tenants vacated the premises to when the premises were re-let. It was common ground that the tenants had not paid rent during this period. However, the tenants claimed that they were not required to pay rent in this period as Mr Bajaj had failed to mitigate his losses.[20]
[20] Magistrate's Reasons pages 6 - 7.
In his reasons, his Honour said that landlords should take steps to ensure that their own losses and the losses of the tenant are minimised. The learned magistrate noted, however, that in certain circumstances it would be unreasonable to expect a landlord to take steps towards re-letting a property until the departing tenants have physically vacated. The magistrate noted that, if the tenants did not actually leave, the landlord may have wasted advertising costs. Further, if a new lease had been signed in anticipation of the tenants leaving, the landlord may be at risk of being sued by the proposed new tenant if it was not possible to give possession of the premises to the proposed new tenant on the date stipulated in the new lease.[21]
[21] Magistrate's Reasons pages 7 - 8.
The magistrate noted that Mr Bajaj had contended that s 58 of the Residential Tenancies Act did not apply, and that there was therefore no duty to mitigate. Section 58 of the Residential Tenancies Act expressly provides that the rules under the law of contract relating to mitigation upon breach of a contract apply to and in relation to a breach of a residential tenancy agreement.[22] The magistrate noted that Mr Bajaj had contended that s 58 did not apply because s 60 did not provide for termination of residential tenancy agreements in the circumstance of a 'break lease'.[23] The magistrate accepted that there is no specific provision in the Residential Tenancies Act to cover a 'break lease'. His Honour correctly noted, however, that, by s 58, the rules applying to breaches of contract would apply to any breach of a residential tenancy agreement.
[22] Magistrate's Reasons pages 7 - 8.
[23] Magistrate's Reasons page 7.
The magistrate said that the tenants had given Mr Bajaj unequivocal notice on 6 March 2019 of their intention to vacate and had repeatedly followed-up with Mr Bajaj in the following weeks seeking his response. Mr Bajaj eventually responded on 21 March 2019, advising the tenants that he did not accept the termination. The property was not advertised for re-letting until 30 March 2019. The first offer to lease the premises was received a few days after it was advertised.[24]
[24] Magistrate's Reasons page 8.
The magistrate considered that Mr Bajaj had delayed engaging with the situation and advertising the property.[25]
[25] Magistrate's Reasons page 9.
Mr Bajaj had submitted to the magistrate that he would have put himself at risk if the tenants not vacated. The magistrate considered that any such risk was limited to losing advertising costs and the possibility of being sued had the existing tenants not vacated after he had leased the premises to a new tenant. The magistrate considered that these risks were slight in the circumstances. The magistrate noted that Mr Bajaj knew Ms Pekin was a legal aid lawyer being transferred to work in another jurisdiction.[26]
[26] Magistrate's Reasons pages 8 - 9.
Ultimately, the magistrate awarded Mr Bajaj one week of rent in the sum of $525. In doing so, the magistrate noted that Mr Bajaj obtained a benefit from the new tenants, in that they paid $10 more per week in rent. The magistrate considered that 'any slight amount which [the tenants] may have owed above [$525] is to be cancelled out by the benefit Mr Bajaj received from leasing out the premises at a slightly higher rental.'[27]
[27] Magistrate's Reasons page 9.
Based on his finding that one week's rent was appropriate, the magistrate awarded Mr Bajaj $35.47 in respect of the water bill. While not explicitly stated, it may be inferred that this represented one-third of the $106.42 claimed for the water bill, rounded down to the nearest cent.
In total, and including the Damage Component findings, the magistrate found that Mr Bajaj was entitled to the sum of $1,371.29.[28]
Costs
[28] Magistrate's Reasons page 11.
Both Mr Bajaj and the tenants sought costs against the other party in the Magistrates Court proceedings.
The magistrate said that he did not consider it was appropriate for either party to get their legal costs as they did not appoint independent lawyers to conduct the case on their behalf.[29]
[29] Magistrate's Reasons page 9.
The magistrate did, however, consider it was appropriate to award to the tenants their disbursements. His Honour ordered Mr Bajaj pay $829.15 in costs to Ms Pekin, representing her travelling and stationery costs. His Honour said that he considered it appropriate to make this order because the expenses had been incurred after the tenants had made an offer to Mr Bajaj in an amount that exceeded his Honour's award.[30]
[30] Magistrate's Reasons pages 9 - 10.
The magistrate made no allowance for Ms Pekin's lost wages.[31]
[31] Magistrate's Reasons pages 10 - 11.
Decision
His Honour made orders as to how the security bond was to be distributed to reflect the amount he had awarded Mr Bajaj as part of his Claim and the amount he had awarded the tenants for disbursements incurred in defending the Claim.
The Application
The grounds of the Review Application were:
1.The learned Magistrate erred in law in failing at duty with an application for a court order on a residential tenancy matter brought under the Residential Tenancies Act 1987 (WA)('Residential Tenancies Act') filed on 14 April 2021 for relief in a damages claim in cause of action of breach of terms of an agreement. Upon hearing under s 14 and s 23 of the Residential Tenancies Act on 29 April 202 [sic] the Magistrate refused to exercise jurisdiction in a prescribed dispute under Residential Tenancies Act. But instead made an interlocutory order on procedural matter as to deal on a minor case claim under rules of minor case procedure, which is an order made under Magistrates Court (Civil Proceedings) Act 2004 (WA)('MCCPA') Section 10 is not within jurisdiction of the court to constitute as jurisdictional error.
2.The learned Magistrate erred in law in failing at duty to deal with disputes concerning residential tenancy for minor case in an efficient, economic and expeditious manner to not waste resources, or that judicial and administrative are used as efficiently as possible under the MCCPA. The interlocutory decision by the Magistrate in residential tenancy proceedings are not solely given the power from the Residential Tenancies Act and that determination was not an exercise under the Residential Tenancies Act but a decision.
3.The learned Magistrate erred in law in failing at duty with an application for a court order for ruling upon the objections to a statement of intended evidence of a witness in Form 32A, brought under r 109 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA)('MCCPR') filed on 16 September 2021. The Magistrates Court order made on a procedural matter, upon a hearing of an interlocutory application on 22 October 2021. The order framed upon jurisdiction question under the MCCPA is not the order made under the Residential Tenancies Act. Further in disregard of rules of natural justice the court order is under MCCPA without jurisdiction of the Magistrates Court to constitute as a jurisdictional error.
4.The learned Magistrate erred in law in failing at duty to prevent the procedure of Magistrates Court being abused in dealing with a minor case of residential tenancy matter under MCCPA s 6 of an unjustifiably oppressive applicant pursuit of proceedings the Magistrate failed to prevent misuse of court procedures and rules in a way manifestly unfair to the applicant to bring administration of justice into disrepute. In failing to exercise jurisdiction to deal with the matter within the authority or by procedures under Residential Tenancies Act. The Magistrate had no jurisdiction to determine proceedings but misapprehend or disregards the nature or limits of functions or power in matter where the Magistrate Court recognise existence of jurisdiction under Residential Tenancies Act was an abuse of process to constitute as a jurisdictional error.
5.The learned Magistrate erred in law misconstruing the credibility, an actual bias, disregard a fair hearing, and disregard of decision weighed upon probative logical evidence, or to deny the applicant the natural justice. Failing in duty to not meet a requirement to inform or consent with the parties that the matter of residential tenancy dispute of a minor case was dealt under the rules of minor case procedure under the MCCPA Section 6, but to pursue resultant at injustice and prejudice constitutes as a jurisdictional error.
6.The learned Magistrate erred in law to deny the applicant procedural fairness upon dealing on a matter of residential tenancy dispute of a minor case on jurisdictional issue rather a claim on substantial rights, or that upon breach of rules of natural justice in dealing with a minor case under the minor case procedure that a final court order made upon judgment by the Magistrate giving oral reasons for the decision on 9 November 2022 was not an order made under the Residential Tenancies Act, but an order of the Magistrates Court under the MCCPA Section 10 without jurisdiction or the power to constitute as a jurisdictional error.
7.The learned Magistrate erred in law to misconceive the requirement of lawful termination of a residential tenancy agreement or to meet a provision on Section 60(1) of the Residential Tenancies Act 1987 (WA) and that the legislation maintains silence on early termination or the break lease of a fixed term tenancy agreement. A final order made upon judgment is prejudicial and attend at substantial claim and interest of the respondent under the MCCPA Section 10 as an order made beyond the jurisdiction, or the power to constitute as a jurisdictional error.
8.The learned Magistrate erred in law to misconstrue the requirements and mitigation upon termination of a residential tenancy agreement of an abandonment on Section 60(1)(f) of the Residential Tenancies Act and that disregard the circumstances of a break lease in a fixed term residential tenancy agreement and the award for damages on a claim by the respondent is beyond jurisdiction or the power to constitute as a jurisdictional error.
9.The learned Magistrate erred in law to misconstrue statutory requirement on award of costs and to deny the applicant the procedural fairness and that order made beyond jurisdiction or the power to constitute as a jurisdictional error.
During the hearing in this Court, Mr Bajaj advised that he is a lawyer with a current practising certificate.[32] Nevertheless, it is difficult to discern the substance of the complaints in these grounds. To the extent that it is possible to understand the grounds, a number of them appeared to allege errors that could not be jurisdictional errors. Further, two of the grounds, grounds 1 and 3, appeared to complain about orders made on dates other than the date of the Decision the subject of the Review Application.
[32] ts 11.
Application to remit to the Court of Appeal
Mr Bajaj filed the Review Application on 8 May 2022, and the matter was listed for hearing in this Court on 25 October 2022.
On 29 June 2022, the Court advised Mr Bajaj that, if he wished to file written submissions, he must do so by 4 October 2022. On 3 October 2022, Mr Bajaj sought, and was granted, an extension of time to 7 October 2022. On 10 October 2022, Mr Bajaj advised the Court he would not be able to file submissions for a further two days. On 14 October 2022, Mr Bajaj advised that he would file the submissions prior to 17 October 2022. On the afternoon of 24 October 2022, the day before the hearing, Mr Bajaj filed written submissions.[33] These submissions contained the application for the Appeal Orders referred to earlier.
[33] Submissions for Special Judge Appointment Hearing filed 24 October 2022 (Applicant's Review Submissions).
In his written submissions, Mr Bajaj said that he sought an[34]
order that the application for a review order, under Section 36(1) of the Magistrates Court Act 2004 (WA) be considered, as if were an appeal of a Section 36(5)(b) under the Supreme Court Rules 1997 (WA), Order 56A (3)(c) and refer of appeal (by leave to appeal) in the Supreme Court (Court of Appel [sic]) of Western Australia (“COA”), under the Supreme Court Act 1935 (WA) Section 58(1)(i) and Section 60(3) to commence an appeal.
[34] Applicant's Review Submissions second introductory unnumbered paragraph. See also [8] - [9].
In his written submissions, Mr Bajaj described the Appeal Orders he sought as follows:[35]
[An] order that [the] application for a review order be considered as if invoking an appeal and that applicant has leave to appeal to the full court.
[An] order that [the] application remitted to Supreme Court (Court of Appeal) of Western Australia and be subject of leave to commence appeal by Supreme Court (Court of Appeal) Rules 2005 (WA) and the Supreme Court Act 1935 (WA) Section 58(1)(i).
[35] Applicant's Review Submissions [8] - [11].
I will refer to his application for these orders as his 'Appeal Application'.
In his written submissions, Mr Bajaj also sought:[36]
Any other order that the Court finds reasonable in the circumstances of appeal case.
[An] order that the respondent pays costs and fees and charges, including transcripts fees and charges and reimburse the expenses on the conduct of this case and appeal proceedings, including the costs and expenses of the proceeding in the court below.
[36] Applicant's Review Submissions [8] - [11].
Mr Bajaj attached to his written submissions an appeal notice which he described as an 'exhibit'.
Mr Bajaj's oral submissions in this Court were to the effect that he only wanted the Appeal Orders, not a review order.[37]
[37] See, for example, ts 6 - 7, 24, 26 - 29.
Even putting aside the fact that the Appeal Application was first made the afternoon before the hearing, there are a number of difficulties with it.
First, Mr Bajaj referred to s 36(5) of the Magistrates Court Act. It provides:
(5)On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -
(a)if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;
(b)if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
Mr Bajaj relied on s 36(5)(b). This does not give me the power to remit the matter to the Court of Appeal. If I considered that an appeal lay under the Magistrates Court (Civil Proceedings) Act 2004, my only power under s 36(5)(b) would be to remit the matter to the District Court.
In any event, I do not consider that an appeal lies under the Magistrates Court (Civil Proceedings) Act. By s 26(1) of the Residential Tenancies Act (quoted earlier), no appeal lies in relation to the Decision.[38]
[38] And see the decision of Kenneth Martin J in Re Bajaj; Ex Parte Bajaj [2021] WASC 335 [71].
Second, Mr Bajaj referred to 'O 56A(3)(c)' of the Rules of the Supreme Court 1971. I assume he means O 56A r 3(2)(c).[39] That rule simply refers to the Court's power to make an order under s 36(5) of the Magistrates Court Act.
[39] O 56A r 3(3)(c) refers to costs orders.
Third, Mr Bajaj referred to s 58(1)(i) and s 60(3) of the Supreme Court Act 1935 (WA) to support his Appeal Application.
Section 58(1)(i) of the Supreme Court Act provides that the Court of Appeal has the jurisdiction to hear appeals to the Court under the Magistrates Court (Civil Proceedings) Act. Under s 41 of the latter Act, a party to an appeal pending in the District Court may apply to the Court of Appeal to have the appeal transferred to the Court of Appeal. Under s 42, a party to an appeal made to the District Court may appeal against the District Court's judgment to the Court of Appeal.
Neither situation exists here.
Section 60(3) of the Supreme Court Act provides that an application for leave to appeal may be made ex parte. This does not give me the power to transfer these proceedings to the Court of Appeal, even if I considered (which I do not) that that should occur.
Accordingly, I have no power to make the Appeal Orders. In any event, even if I did, I would not make such orders. It would not be an efficient use of judicial resources.
As foreshadowed earlier, I will nevertheless discuss Mr Bajaj's application for a review order. Further, to the extent that the written submissions appear to deal with matters raised in the grounds of the Review Application, I will treat them as if they had been submissions in support of the Review Application.
A primary contention - minor case jurisdiction
Mr Bajaj's written submissions did not identify which ground he was addressing. In addition, despite being asked to identify which ground he was addressing in his oral submissions,[40] Mr Bajaj was largely unable to do so. It became apparent that many of the grounds were directed to the same issue. This issue appeared to be his primary contention, and related to the nature of the jurisdiction the magistrate was exercising.
The jurisdiction being exercised
[40] ts 3 - 5, 20.
By s 12 and s 12A of the Residential Tenancies Act, any application that can be made under the Residential Tenancies Act must be dealt with as a minor case, unless it involves a claim for more than $10,000. Those sections provide:
12.Terms used
In this Part -
prescribed amount means $10 000 or such other amount as may be prescribed;
prescribed dispute means any matter that may be the subject of an application under this Act, other than an application made under this Act that is, or involves, a claim for an amount over the prescribed amount, but includes an application made under clause 8 of Schedule 1, irrespective of the amount claimed.
12A.Jurisdiction over prescribed disputes
(1)The Magistrates Court has exclusive jurisdiction to hear and determine a prescribed dispute and such disputes are not justiciable by any other court or tribunal.
(2)A prescribed dispute is a minor case for the purposes of Part 4 of the Magistrates Court (Civil Proceedings) Act 2004 and the jurisdiction conferred by subsection (1) is to be exercised accordingly.
Section 13A(1) of the Residential Tenancies Act provides:
13A.Magistrates Court's jurisdiction
(1)For the purpose of exercising the jurisdiction conferred by section 12A and 13, the Magistrates Court is to be constituted by a magistrate.
Section 14 of the Residential Tenancies Act provides that proceedings under that Act shall be heard and determined wherever practicable within 14 days after they are instituted and, where that is not practicable, as expeditiously as possible.
Section 8 of the Magistrates Court (Civil Proceedings) Act provides:
8.Statutory jurisdiction
The Court's civil jurisdiction includes any jurisdiction conferred on the Court by a written law other than this Act, other than jurisdiction conferred on the Court as a court of summary jurisdiction.
Section 26 of the Magistrates Court (Civil Proceedings) Act provides:
26.Terms used
In this Part -
general procedure means the procedure prescribed by Part 3 and the rules of court other than rules of court made for the purposes of this Part;
minor case means -
(a) a claim within the jurisdiction of the Court where -
(i)the value of the claim or of the relief claimed is not more than the minor cases jurisdictional limit; and
(ii)the claimant has elected to have the claim dealt with under the minor cases procedure;
or
(b)a matter within the jurisdiction of the Court referred to in section 8 that is declared to be a minor case for the purposes of this Act by the written law that confers jurisdiction on the Court to deal with the matter; or
(c)any other claim within the jurisdiction of the Court (including a claim within the jurisdiction of the Court by virtue of a consent given under section 6(1)(f)) that the parties agree is to be treated as a minor case.
Section 28 of the Magistrates Court (Civil Proceedings) Act (in Part 4 of that Act) provides:
28.Minor cases procedure, general provisions
(1)The Court must deal with a minor case in accordance with the minor cases procedure unless an order has been made under subsection (2) or (3).
(2)The Court must order that a minor case be dealt with under the general procedure if the case involves any jurisdiction conferred on the Court by a law of the Commonwealth.
(3)The Court may order that a minor case be dealt with under the general procedure if -
(a) all the parties so request; or
(b)the case involves an important principle of law or complex facts or issues.
(4)If a minor case involves a counterclaim that is not a minor case the Court may -
(a)with the consent of the parties, deal with the whole of the minor case under the minor cases procedure; or
(b)otherwise -
(i)order the counterclaim to be dealt with as a separate case under the general procedure; or
(ii)if the claimant so requests, order the whole of the minor case to be dealt with under the general procedure.
(5)Subsection (4) does not affect the operation of section 9.
Mr Bajaj's submissions
Mr Bajaj's submissions in relation to this issue were not entirely clear. However, two themes emerged.
First, Mr Bajaj appeared to contend that, by not dealing with the Claim within 14 days, the magistrate had unlawfully failed to exercise his jurisdiction to deal with the Claim under the Residential Tenancies Act.
Second, Mr Bajaj appeared to contend that, because his Claim had not been dealt with within 14 days, the Magistrates Court did not have jurisdiction to deal with it under the Residential Tenancies Act and did not have jurisdiction to deal with it under the minor cases procedure. He appeared to contend that the Magistrates Court could only deal with the Claim under the general procedure provisions of the Magistrates Court (Civil Proceedings) Act.
Mr Bajaj's propositions appeared to be as follows:[41]
[41] See, for example, ts 9 - 10, 15, 17 - 18, 21, 23.
1.The Claim was first heard in the Magistrates Court on 29 April 2022;
2.The magistrate did not resolve the Claim within 14 days, as required by s 14 of the Residential Tenancies Act;
3.Therefore, after the elapsing of 14 days, the magistrate did not have the jurisdiction to deal with the Claim under the Residential Tenancies Act;
4.Therefore, the Claim did not fall within s 26(b) of the definition of a minor case in the Magistrates Court (Civil Proceedings) Act;
5.Further, the Claim did not fall within s 26(a) of the definition because Mr Bajaj had not elected to have the Claim dealt with under the minor cases procedure;[42]
6.Therefore, the magistrate did not have jurisdiction to deal with the Claim under the minor cases procedure (as it was not a minor case under s 26(a) or (b) of the definition in the Magistrates Court (Civil Proceedings) Act);
7.Therefore, the magistrate could only deal with the Claim under the general procedure provisions of the Magistrates Court (Civil Proceedings) Act.
Discussion
[42] See Applicant's Review Submissions [18]. See also [22].
Plainly, it is not a condition of the jurisdiction to deal with proceedings under the Residential Tenancies Act that the proceedings be dealt with within 14 days. Nor would a failure to deal with a proceeding under the Residential Tenancies Act within 14 days be a failure to exercise jurisdiction under that Act. Even if s 14 of the Residential Tenancies Act was construed as something more than a guideline, it provides only that proceedings under the Residential Tenancies Act shall be heard and determined wherever practicable within 14 days after they are instituted. Having regard to the nature of the Claim and the manner in which it was prosecuted, it was plainly not practicable to deal with it within 14 days.[43]
[43] This can be seen simply by regard to the transcript of the first hearing on 29 April 2021 - attachment RB26 to the Applicant's Affidavit.
The Claim was an application under the Residential Tenancies Act and claimed less than $10,000. Accordingly, the learned magistrate did not err in dealing with the Claim as a 'minor case'. On the contrary, his Honour was required to deal with it as a minor case, unless s 28(2) or (3) of the Magistrates Court (Civil Proceedings) Act applied.
The Claim did not involve any jurisdiction conferred on the Court by a law of the Commonwealth. Accordingly, s 28(2) did not apply.
The Claim did not involve an important principle of law or complex facts or issues. Accordingly, s 28(3)(b) did not apply.
Further, it is not suggested that the tenants requested that the proceedings be dealt with under the general procedure. Accordingly, s 28(3)(a) did not apply. Therefore, his Honour was required to deal with the Claim as a 'minor case'.
For these reasons, there is no merit in Mr Bajaj's primary contention.
Ground 1 - an earlier decision, not under the Residential Tenancies Act
Ground 1 is not directed to the Decision. Rather, it relates to orders made on 29 April 2021. Those orders set deadlines for the filing of witness statements and listed the proceedings for a status conference.[44]
[44] Applicant's Affidavit attachment RB2 page 2.
Ground 1 appears to allege that the magistrate unlawfully failed to exercise his jurisdiction to deal with the Claim under the Residential Tenancies Act by failing to determine the Claim on 29 April 2021. That is, the error alleged in ground 1 appears to relate to Mr Bajaj's primary contention.
I have already explained why I reject that contention. Accordingly, even if orders made prior to the Decision were covered by the scope of the Review Application, there is no merit in ground 1.
Ground 2 - efficient, economic and expeditious manner
Ground 2 asserted that the magistrate erred in law in failing to deal with the Claim in an efficient, economic and expeditious manner.
There is no evidence of this. On the contrary, the learned magistrate tried to prevent the length of the hearing being unnecessarily extended by irrelevant matters but was plainly mindful of the need to ensure that Mr Bajaj was given every reasonable opportunity to present his case. In the circumstances, his Honour cannot be faulted. In any event, even if this error was made, it would not have been a jurisdictional error.
For these reasons, there is no merit in ground 2.
Ground 3 - an earlier decision, not under the Residential Tenancies Act
Like ground 1, ground 3 is not directed to the Decision. Rather, it relates to orders made on 22 October 2021. Those orders[45] dealt with an application made by Mr Bajaj,[46] following a hearing lasting just over 40 minutes. I will refer to this application as the 'Strike Out Application'.
[45] Applicant's Affidavit attachment RB14.
[46] Applicant's Affidavit attachment RB9.
In the Strike Out Application, Mr Bajaj sought various orders.
First, Mr Bajaj sought that parts of Ms Pekin's 'Statement of Intended Evidence' (Statement) be struck out.[47] He submitted that the passages to which he objected offended the rules of evidence.[48] The magistrate acknowledged that such evidence may be given less weight, but correctly pointed out that the court was not bound by the rules of evidence.[49] The magistrate refused to strike out any part of Ms Pekin's Statement. This was not erroneous.
[47] The Statement is attachment RB7 to the Applicant's Affidavit.
[48] Magistrates Court transcript 22 October 2021 (October 2021 Transcript) page 4.
[49] See, in particular, October 2021 Transcript pages 5, 7, 10, 14, 18 - 19 and 22.
Second, Mr Bajaj sought an extension of time be granted for Mr Pekin to serve a statement of evidence. This appeared to be the primary focus of his oral submissions. In short, Mr Bajaj submitted that Mr Pekin had to file a witness statement.
Mr Pekin was not intending to, and did not, give evidence. The magistrate correctly pointed out (repeatedly) that Mr Pekin did not have to provide a witness statement if he was not going to be giving evidence.[50] The magistrate refused to make an order extending time. This was not erroneous.
[50] See, for example, October 2021 Transcript pages 15 - 16.
Third, Mr Bajaj sought that he be permitted to adduce additional documents in addition to the witness statement he had already filed. The magistrate gave Mr Bajaj leave to adduce additional evidence.
Fourth, Mr Bajaj sought that the defendant pay his costs of the application 'if any'. The magistrate refused to make this order. This was not erroneous.
As with ground 1, the error alleged in ground 3 appears to be that, because his Claim had not been dealt with within 14 days, the court did not have jurisdiction to deal with it under the Residential Tenancies Act. I have already rejected this argument in dealing with ground 1.
For these reasons, even if orders made prior to the Decision were covered by the scope of the Review Application, there is no merit in ground 3.
Ground 4 - abuse of process
Ground 4 is particularly difficult to understand. From Mr Bajaj's oral submissions, it appears that this ground alleges that there was an abuse of process because the magistrate failed to stop Ms Pekin from abusing the process.[51]
[51] ts 24, 37, 48 - 53.
During the hearing, I pressed Mr Bajaj to identify the occasions on which he said that this had occurred. He identified two.[52]
[52] ts 44 - 47.
First, Mr Bajaj said that when he entered the courtroom for the first hearing, the magistrate was already talking to Ms Pekin who was appearing by telephone. Mr Bajaj also said that it became plain that Ms Pekin had already sent materials to the magistrate.[53]
[53] ts 45.
The first hearing was on 29 April 2021. The transcript of the commencement of the hearing is as follows:[54]
HIS HONOUR: Good morning.
PEKIN, MS: Hello. This is Brianna Pekin.
HIS HONOUR: Yes, Ms Pekin. This is Magistrate Darge, Perth Magistrates Court. We've called on the matter, somewhat late, due to a very busy day, involving Mr Bajaj ‑ ‑ ‑
PEKIN, MS: Yes.
HIS HONOUR: ‑ ‑ ‑ and yourself and Dominic Pekin.
PEKIN, MS: Yes. Thank you, your Honour.
HIS HONOUR: Mr Bajaj is here and there are, also – as a protocol, I will just explain to Mr Bajaj that I'm removing my mask to speak to you and he, and you may, if you wish, remove your mask when you're speaking to me, Mr Bajaj. …
[54] Applicant's Affidavit attachment RB26 page 3.
At the end of the hearing, the magistrate referred to terminating the audio link with Ms Pekin.[55]
[55] Applicant's Affidavit attachment RB26 page 34.
From this, I assume that Mr Bajaj walked into the courtroom some time after the magistrate said 'good morning' but before he said 'Mr Bajaj is here'. Nothing in what transpired was an abuse of process. Plainly, the matter had been called and the court had telephoned the party appearing by phone, as it was required to do.
In relation to the materials Ms Pekin had sent through, it appears that Ms Pekin had sent to the court copies of the correspondence between the parties.[56] The magistrate's acceptance of those materials did not constitute an abuse of process. It is, however, arguably relevant to ground 5, and I will discuss it further when dealing with that ground.
[56] Applicant's Affidavit attachment RB26 page 9.
Second, Mr Bajaj alleged an abuse occurred when the tenants filed an application and an affidavit in support without the consent or prior knowledge of Mr Bajaj, the day before a hearing.[57]
[57] ts 44. This was the first example he gave, but was about events that were later in time than the first example.
It appears that Mr Bajaj was referring to the tenants' application to attend the hearing of the Strike Out Application by audio-link.[58] The magistrate granted the application on the papers.[59]
[58] The tenants' application and supporting affidavit were filed on 21 October 2021, and are contained within attachment RB13 to the Applicant's Affidavit, at pages 4 - 5.
[59] The magistrate's orders on the papers granting the application are also contained within attachment RB13 to the Applicant's Affidavit, at pages 2 - 3.
The tenants' filing of this application, and the magistrate's granting of the orders on the papers, was not an abuse of process. It was a purely procedural order that could not have caused any prejudice to Mr Bajaj, and in relation to which there could be no legitimate opposition.
For these reasons, there is no merit in ground 4.
Although Mr Bajaj identified these two occasions as the occasions on which he asserted an alleged abuse occurred, he also asserted a further abuse arising from the orders made by the magistrate on the Strike Out Application. He submitted that there had been an abuse of process because the magistrate had not prevented Ms Pekin filing a statement that contained inadmissible material and had not required Mr Pekin to file a witness statement.[60]
[60] See the Applicant's Review Submissions [26] and ts 24 and 48 - 53.
This did not constitute an abuse of process. Indeed, as I noted in my discussion of ground 3, the magistrate did not err in refusing to strike out any part of Ms Pekin's Statement and in refusing to make an order extending time for Mr Pekin to file a witness statement.
Mr Bajaj also asserted a further abuse of process occurred when the magistrate permitted Ms Pekin to file a response after the time at which a response had to be filed under rule 112 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA).[61] It appears he was talking about Ms Pekin's response to his Strike Out Application.[62]
[61] ts 37, 39.
[62] See ts 39.
Mr Bajaj asserted that, under the Magistrates Court (Civil Proceedings) Rules, the magistrate was required to grant the Strike Out Application if a response was not filed within the prescribed time. He said:[63]
And every time when I said, for example, if I put an application 23, there's a requirement under the rules that the other party has to make a response. And if they haven't made a response within the particular time, then [the magistrate's] mandatory duty is to make a – to make the orders and dispose the proceeding.
[63] ts 33.
When asked, Mr Bajaj was unable to identify the rule that required this, and said he had not brought the Magistrates Court (Civil Proceedings) Rules with him to court. When he was provided with a copy of the relevant part of the Magistrates Court (Civil Proceedings) Rules, he said that this alleged requirement had been established by case law. He was unable to recall the name of the case and asked for an adjournment to the afternoon to enable him to find it. I instead gave him leave to email, by 4pm that day, the name of the case or the precise rule that contained this alleged requirement.[64] Shortly afterwards, Mr Bajaj appeared to retract his assertion.[65] Nevertheless, later that day, at 4.26pm, Mr Bajaj did send an email. It went well beyond the grant of leave. Nor did the email identify any case or rule that said what he had, at least initially, asserted.
[64] ts 33 - 37.
[65] See ts 37.6.
In any event, by rule 5(2) of the Magistrates Court (Civil Proceedings) Rules, those rules do not apply in relation to an application under the Residential Tenancies Act.
During his oral submissions, Mr Bajaj made a number of other complaints alleging breaches of procedures. Mr Bajaj appeared to be contending that the magistrate was required to ensure that the procedures were followed strictly,[66] else it would be an abuse of process.[67] This is simply incorrect.
[66] See, for example, ts 23.
[67] ts 53 - 54 (in the context of ts 47 - 52).
Mr Bajaj also alleged that Ms Pekin had filed materials in order to exert pressure on him, and that this was an abuse of process.[68] There is no basis for the allegation that this was Ms Pekin's purpose. Mr Bajaj made a number of other scandalous allegations against Ms Pekin.[69] None were relevant to the Review Application, and none had any foundation. The allegations ought not to have been made and I reject them entirely.
[68] Applicant's Review Submissions [25] and [27].
[69] See, for example, ts 58 - 59.
For completeness, I note that, at 4.38pm on the day of the hearing of the Review Application, Mr Bajaj sent a further email entirely unrelated to the point on which he had leave to communicate with the court. Mr Bajaj said that he had raised what he wrote in this email in his written submissions but had forgotten to do so orally. As I have his written submissions, it is unnecessary to consider whether I should have regard to this communication, sent without leave after I had reserved my decision.
Ground 5 - natural justice, bias and Ms Pekin's Statement
Ground 5 is also particularly difficult to understand. From Mr Bajaj's submissions as a whole, it appears to comprise:
1.an allegation of a breach of natural justice due to the magistrate's failure to inform him that the magistrate was dealing with the Claim under the minor cases procedure and the magistrate's failure to give him the opportunity to explain why the Claim was not a minor case;[70]
2.an allegation of actual bias by the magistrate; and
3.a complaint about the magistrate's failure to reject those parts of Ms Pekin's Statement that allegedly breached the rules of evidence.[71]
Natural justice
Opportunity to explain about s 26(a)
[70] See the second sentence of ground 5 and ts 3 and 22.
[71] I surmise that this is what he was referring to when he wrote in ground 5 'disregard of decision weighed upon probative logical evidence'.
Mr Bajaj appears to assert that the magistrate was required to give him the opportunity to explain that the Claim did not fall within s 26(a) of the definition of a 'minor case' in the Magistrates Court (Civil Proceedings) Act.[72]
[72] See ts 3.
The magistrate was not required to give Mr Bajaj the opportunity to do this. The magistrate was not acting on the basis that the Claim fell within s 26(a). The magistrate was, correctly, acting on the basis that it was a minor case because it was an application under the Residential Tenancies Act (and therefore fell under s 26(b) of the definition).
Materials provided to the magistrate by the tenants
As noted in the discussion of ground 4, it appears that Ms Pekin had sent to the court copies of the correspondence between the parties before the first hearing on 29 April 2021.[73] I will refer to this material as the 'Correspondence '. Mr Bajaj alleged that the magistrate's acceptance of the Correspondence constituted an abuse of process. As I said previously, I do not accept this.
[73] Applicant's Affidavit attachment RB26 page 9.
In oral submissions, Mr Bajaj also appeared to assert that the magistrate's acceptance of the Correspondence gave rise to an apprehension of bias. Apprehended bias was not a ground of review. In any event, I do not consider that it is arguable that a fair‑minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the decision because he accepted the Correspondence.[74]
[74] Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337 [6]. See also Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [12], [20], [21] (Kiefel, Bell, Keane & Nettle JJ).
I have previously commented on how difficult it is to discern the substance of Mr Bajaj's grounds. Mr Bajaj did not appear to assert that he was denied procedural fairness in relation to the Correspondence. However, Mr Bajaj undoubtedly complained about the Correspondence. Further, Mr Bajaj implicitly asserted that he had not been privy to that communication. In my view, it is appropriate that I treat ground 5 as including an allegation that Mr Bajaj was denied procedural fairness in relation to the Correspondence.
Under the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA), a person served with an application (respondent) must, at least three working days before the hearing of the application, lodge and serve a response stating whether the respondent consents or objects to each order sought in the application. Unless the respondent consents to every order sought, an affidavit must also be provided. The response must be in the 'approved form'.
It seems likely that the Correspondence was contained within a response by the tenants. However, Mr Bajaj did not include any such response in his 881 page affidavit. Nor does he refer to such a response having been filed in the body of his affidavit.
If, however, the magistrate received Correspondence from the tenants that was not made available to Mr Bajaj, this could have constituted a denial of procedural fairness, depending on the circumstances.
On the limited information available to me on this ex parte application, it is arguable that there was a denial of procedural fairness. It is appropriate to make a review order in relation to whether there was a denial of procedural fairness in relation to the Correspondence.
Another issue
A similar issue arises in relation to a communication between the Magistrates Court and Ms Pekin in relation to costs, to which it appears Mr Bajaj was not a party.
Mr Bajaj did not raise this in the context of a denial of procedural fairness. However, I again consider that it is appropriate that I treat ground 5 as including an allegation that Mr Bajaj was denied procedural fairness in relation to the costs communication.
The magistrate gave the parties leave to file submissions after the hearing, and both parties did so. Ms Pekin's submissions were filed on 4 November 2021. Ms Pekin's submissions sought costs, including the costs of travel, stationery and salary, in a total of $4,522.07. The submissions said that the items could be particularised further.[75]
[75] Applicant's Affidavit attachment RB20 page 9.
It appears that an officer of the Magistrates Court emailed Ms Pekin on the morning of the Decision asking her to send copies of the invoices and/or vouchers underlying the disbursements she had claimed, which she did.[76] I will refer to this material as 'the Costs Documentation'.
[76] Applicant's Affidavit attachment RB23 pages 2 - 3.
Mr Bajaj does not appear to have been copied into this exchange.
I am conscious of the fact that this is an ex parte application, and I do not know whether Mr Bajaj was provided with the Costs Documentation externally to the email exchange. Nevertheless, on a review order, all that needs to be shown is an arguable case of jurisdictional error.
In my view, it is arguable that there was a denial of natural justice in relation to the Costs Documentation.
Actual bias
Ground 5 alleged actual bias. Mr Bajaj's written submissions alleged 'actual or apprehended bias', but I was unable to discern the basis for that allegation from his written submissions.[77]
[77] Applicant's Review Submissions [30].
In oral submissions, Mr Bajaj made numerous assertions of apprehended bias.[78] The grounds of review did not contain an allegation of apprehended bias. In any event, the matters he alleged in this context are sufficiently addressed in the discussion of ground 4 (in relation to the various abuses alleged), in the discussion of ground 3 (in relation to the magistrate's refusal to strike out parts of Ms Pekin's Statement and refusal to order that Mr Pekin file a statement) and in the discussion above in relation to the Correspondence.
Ms Pekin's Statement
[78] See ts 21, 48 - 49.
In my discussion of ground 3, I explained why the magistrate did not err in refusing to strike out parts of Ms Pekin's Statement.
Conclusion
I have concluded that it is arguable that Mr Bajaj was denied procedural fairness in relation to the Correspondence and Costs Documentation. There is no merit in any other aspect of ground 5.
Ground 6 - not under the Residential Tenancies Act
As with ground 1, the error alleged in ground 6 appears to be that, because the Claim had not been dealt with within 14 days, the court did not have jurisdiction to deal with it under the Residential Tenancies Act. I have already rejected this argument in dealing with ground 1.
For these reasons, there is no merit in ground 6.
Ground 7 - termination
Ground 7 alleges an error in the construction of the Residential Tenancies Act. Mr Bajaj submitted that the magistrate erred in law in construing s 60(1) (as to the circumstances in which a residential tenancy agreement would terminate).
Generally speaking, if a magistrate erred in the construction of a statute, this would not mean the magistrate acted outside of his or her jurisdiction.[79] This general position applies here. Further, and in any event, the magistrate did not make an error in construing s 60. The magistrate did not purport to construe it.
[79] Bajaj 2021 [52].
Mr Bajaj claimed, in effect, that he did not accept the tenants' repudiation of the agreement and that it therefore remained in force until the agreement expired in November 2019.[80] He then submitted that the magistrate should find that the agreement terminated on 12 May 2019, the day before the new lease commenced.[81]
[80] Applicant's Affidavit attachment RB19, being Mr Bajaj's written submissions to the magistrate after the trial (Applicant's Submissions to the Magistrate) [2].
[81] Applicant's Submissions to the Magistrate [6] and attachment RB21 to the Applicant's Affidavit, being Mr Bajaj's amendments to his written submissions to the magistrate after the trial [2].
The date on which the agreement had been terminated was relevant only to that component of Mr Bajaj's claim that related to unpaid rent and water rates. Mr Bajaj claimed he was entitled to be paid rent (and the water cost) for the three weeks between the tenants vacating the premises and the date on which the premises were re-let.
The magistrate found that Mr Bajaj should have acted more quickly to re-let the premises and mitigate his loss. The magistrate therefore found that Mr Bajaj was entitled to be compensated for only part of that time.[82]
[82] Magistrate's Reasons pages 7 - 9.
Section 58 of the Residential Tenancies Act provides:
The rules under the law of contract relating to mitigation of loss or damage upon breach of a contract apply to and in relation to a breach of a residential tenancy agreement.
Although Mr Bajaj's submissions were difficult to understand, he appeared to submit to the magistrate that the duty to mitigate under s 58 did not arise until the agreement was terminated (which he said was on the date the premises were re-let).[83] If this was his submission, it was incorrect. Section 58 makes it plain that the duty to mitigate arises on breach.
[83] See the Applicant's Submissions to the Magistrate [6] - [7], [16] and [17].
As the magistrate correctly observed, it was unnecessary for the magistrate to determine when the agreement was terminated or its manner of termination.[84] All that was relevant was the date of the tenants' breach of the agreement and whether Mr Bajaj failed to mitigate the loss he suffered after the breach.
[84] Magistrate's Reasons pages 7 - 8.
There being no need to make such a determination, his Honour did not make one. His Honour did not purport to construe s 60(1) of the Residential Tenancies Act as to the circumstances in which a residential tenancy agreement would terminate. His Honour did not make the error complained of in ground 7. I further observe that, even if the alleged error had been made, it would not have been a jurisdictional error in the circumstances.
For these reasons, there is no merit in ground 7.
Ground 8 - mitigation
Mr Bajaj submitted that the magistrate erred in law as to the lessor's obligation to mitigate its damages:
(a)where a residential tenancy agreement was abandoned; and
(b)where a fixed term residential tenancy agreement was terminated before the expiration of the fixed term.
For the same reasons as I gave in relation to ground 7, there is no merit in ground 8.
Ground 9 - costs
Ground 9 alleges that the magistrate 'erred in law to misconstrue statutory requirement on award of costs and to deny the applicant the procedural fairness and that order made beyond jurisdiction or the power to constitute as a jurisdictional error'.
From Mr Bajaj's written submissions, it appears that this ground is directed to the magistrate's alleged misconstruction of s 25 of the Magistrates Court (Civil Proceedings) Act. It appears that Mr Bajaj submits that the magistrate erroneously considered that Mr Bajaj was not entitled to his costs because he was a litigant in person.[85]
[85] See the Applicant's Review Submissions [25] and the cases he cites in footnotes 37 and 38.
Section 25 of the Magistrates Court (Civil Proceedings) Act provides:
25.Costs
(1)The Court may order a party to a case to pay the whole or a part of another party's costs in the case.
(2)A successful party is entitled to an order under subsection (1) that the whole of its costs in the case be paid by the unsuccessful party, unless the Court considers there is good reason not to make such an order or subsection (5) applies.
(3)An order may be made under subsection (1) in a case even if the case is outside the Court's jurisdiction.
(4)An order may be made under subsection (1) at any stage of the proceedings in a case.
(5)In a case where -
(a)the value of the claim, or of the relief claimed, by the claimant is not more than the minor cases jurisdictional limit; and
(b)the claimant did not elect to have the claim dealt with under the minor cases procedure or, under section 28(3), the court ordered that the case be dealt with under the general procedure,
the Court may only make an order under subsection (1) in favour of a successful party if the order would be permitted by section 31 were the case being dealt with under the minor cases procedure.
(6)If in a case referred to in subsection (5) judgment is given under section 18 as a result of an application by the successful party, any order made under this section in favour of the party may, in addition to relating to any allowable costs referred to in section 31, include the party's costs of the application under section 18.
(7)The amount of any costs to be paid is to be determined by the Court unless the parties concerned agree on the amount.
(8)The amount of any costs to be paid in respect of work done by a legal practitioner in conducting any proceedings in the case is to be determined under the applicable costs determination.
(9)If the Court orders the costs of a self‑represented party to be paid by another party, the Court may order that the whole or a part of the expenses or losses incurred by the self‑represented party in or in connection with conducting the case be included in the costs.
(10)If the Court is satisfied that due to the acts or omissions of a legal practitioner, whether personally or through an employee or agent -
(a)costs have been incurred improperly or without reasonable cause; or
(b)costs have been wasted by undue delay or by any misconduct or default,
the Court may order all or any of the following -
(c)the legal practitioner to be wholly or partially disentitled to costs from the legal practitioner's client;
(d)the legal practitioner to repay to the legal practitioner's client the whole or a part of any costs that the legal practitioner has been paid by the client for items other than disbursements;
(e)the legal practitioner to pay to the legal practitioner's client the whole or a part of any costs that the client is ordered to pay to another party;
(f)the legal practitioner personally to indemnify any party other than the legal practitioner's client against the whole or a part of the costs payable by the indemnified party.
(11)The Court must not make an order under subsection (10) unless it has informed the legal practitioner of the proposed order and allowed the legal practitioner to call evidence and make submissions in relation to the proposed order.
(12)If an order is made under subsection (10)(c), the legal practitioner must not charge and cannot recover the costs concerned.
Section 25 appears in Part 3 of the Magistrates Court (Civil Proceedings) Act, the part dealing with general procedure. A separate section, s 31, deals with costs in minor cases. Accordingly, s 25 of the Magistrates Court (Civil Proceedings) Act was not applicable.
Section 31 of the Magistrates Court (Civil Proceedings) Act appears in Part 4, the part dealing with minor cases procedure. It provides:
31.Costs
(1)In this section -
allowable costs means -
(a)the court fees and service fees paid by a successful party; and
(b) the costs of enforcing a judgment.
(2)A successful party to a minor case is entitled to an order under section 25(1) in relation to the party's allowable costs but not in relation to the party's other costs in the case.
(3)Despite subsection (2), the Court may make an order under section 25(1) as to the payment of the party's other costs by another party if it is satisfied that -
(a)because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or
(b)the unsuccessful party's claim or defence was wholly without merit; or
(c)the proceedings in the minor case -
(i)were commenced but not concluded in a Local Court before 1 May 2005; and
(ii)were, immediately before 1 May 2005, not proceedings that were being heard and determined under the Local Courts Act 1904 Part VIA 2.
That is, in minor cases, only court and service fees are recoverable unless the Court is satisfied of the matters in s 31(3)(a) or (b).
However, s 24 of the Residential Tenancies Act provides:
(1)A competent court hearing proceedings shall not award costs, unless -
(a)all parties to the proceedings were represented by legal practitioners; or
(b)it is of the opinion that there are special circumstances justifying the award of costs.
(2)Where a party to the proceedings has paid a fee under section 18(1), nothing in subsection (1) is to be taken to prevent a court making an order which requires any other party to the proceedings to pay to the first‑mentioned party the amount of that fee.
Accordingly, neither s 25 nor s 31 of the Magistrates Court (Civil Proceedings) Act were applicable. The power to award costs was governed by s 24 of the Residential Tenancies Act.
The magistrate did not expressly state that s 24 of the Residential Tenancies Act was the applicable provision. However, his Honour demonstrated his close familiarity with the provisions of the Residential Tenancies Act and the minor cases procedure throughout the proceedings. Further, in her closing submissions, Ms Pekin set out the requirements of s 24.[86]
[86] See the Applicant's Affidavit attachment RB20 page 7.
I would infer that his Honour was referring to s 24(1)(a) of the Residential Tenancies Act when he said that he did not consider it was appropriate for either party to get their legal costs as they did not appoint independent lawyers to conduct the case on their behalf.
In any event, as s 25 of the Magistrates Court (Civil Proceedings) Act was not applicable, there is no merit in ground 9.
Conclusion
For these reasons, I would make a review order in respect of whether there was a failure to accord natural justice in relation to the Correspondence and Costs Documentation. The Review Application is otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Judicial Support Officer
17 JANUARY 2023
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