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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 5
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Mr Bajaj, sought a review order in relation to a decision made by Magistrate Darge, and subsequently sought leave to appeal to the Court of Appeal. Mr Bajaj claimed that he was aggrieved by certain aspects of the decision and sought to challenge it on the basis of alleged procedural unfairness. The court was required to decide whether a review order should be made under s 36 of the Magistrates Court Act 2004 (WA), and whether leave to appeal should be granted.

The court considered that the application for leave to appeal was misconceived, as it was not an appropriate avenue for challenging the decision in question. However, the court proceeded to consider whether a review order should be made. The court found that there appeared to be an arguable case that Mr Bajaj was denied procedural fairness in relation to two specific matters, namely communications between the Magistrates Court and the tenants that Mr Bajaj may not have been privy to. The court held that, on the material currently available, there was a sufficient arguable case for a review order to be made in relation to these matters.

The court ultimately decided to make a review order in relation to the two matters identified above. The review order required the Magistrates Court and any person affected by the decision to satisfy the Supreme Court at a hearing that the decision should or should not be set aside. The court noted that this was an ex parte application and that it had only considered the material put forward by Mr Bajaj. However, the court found that there appeared to be an arguable case for a review order to be made on the basis of the material currently available.

The court made a review order in relation to two specific matters relating to communications between the Magistrates Court and the tenants. The court found that there appeared to be an arguable case that Mr Bajaj was denied procedural fairness in these respects, and that a review order should be made to ensure that justice is done. The review order required the Magistrates Court and any person affected by the decision to satisfy the Supreme Court at a hearing that the decision should or should not be set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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.

Ratio Decidendi

Legal Principle Established

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