Re Magistrates Court Act 2004;
[2020] WASC 3
•15 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE MAGISTRATES COURT ACT 2004; EX PARTE EMIRATES AUSTRALIA [2020] WASC 3
CORAM: ALLANSON J
HEARD: 20 DECEMBER 2019
DELIVERED : 15 JANUARY 2020
FILE NO/S: CIV 2724 of 2019
MATTER: An application under the Magistrates Court Act 2004 section 36 for a review order against Magistrate L Ward of the Western Australia Magistrates Court at Perth EX PARTE Emirates Australia
EX PARTE
EMIRATES AUSTRALIA
Applicant
Catchwords:
Judicial review - Where claim brought in Magistrates court for failure to provide double stroller at Dubai International airport - Where defence to claim relies on Commonwealth Act - Where magistrate ordered claim be dealt with under minor cases procedure - Whether case involves jurisdiction conferred by a law of the Commonwealth - Whether claim must be dealt with under general procedure - Whether jurisdictional error or error of law on the face of the record
Legislation:
Australian Constitution, s 76
Australian Consumer Law, s 29, s 61
Civil Aviation (Carriers' Liability) Act 1959 (Cth), sch 1A, s 9B
Judiciary Act 1903 (Cth), s 39
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 28, s 32
Magistrates Court Act 2004 (WA), s 36
Rules of the Supreme Court 1971 (WA), O 56A, O 56 r 1
Result:
Application granted
Orders made
Category: B
Representation:
Counsel:
| Applicant | : | N P van Hattem |
| Other Party | : | O Kavianipour |
Solicitors:
| Applicant | : | Norton White |
| Other Party | : | In person |
Case(s) referred to in decision(s):
A v Maughan [2016] WASCA 128 ; (2016) 50 WAR 280
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Johnson Tiles Pty Ltd v Esso Australia [2000] FCA 1572; (2000) 104 FCR 564
LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575
Qantas Airways Limited v Lustig [2015] FCA 253
Rayney v AW [2009] WASCA 203
Wingfoot Australia Partners Pty Ltd v Kocack [2013] HCA 43; (2013) 252 CLR 480
ALLANSON J:
The Magistrates Court (Civil Proceedings) Act 2004 (WA) provides for cases before the court to be dealt with under general procedure or minor cases procedure.
On 15 April 2019, Omid Kavianipour commenced a claim in the Magistrates Court against Emirates Australia, claiming relief under the Australian Consumer Law. The claim was brought according to the minor case procedure.
The claim by Mr Kavianipour is a minor case by reason of the value of the claim. Under s 28(2) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) the court must deal with a minor case in accordance with the minor cases procedure unless it orders that it be dealt with under the general procedure. By s 28(2)
[t]he 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.
Emirates applied for an order that the claim to be dealt with as a general procedure, under pt 3 of the Act, because it involved jurisdiction conferred on the court by a law of the Commonwealth, and also because it involved an important principle of law and complex issues. On 16 August 2019, a magistrate dismissed Emirates' application for the proceedings to be dealt with under the general procedure and listed the matter for a trial of one day.
Emirates seeks orders pursuant to s 36 of the Magistrates Court Act 2004 (WA), to review that decision. Under s 36, the Supreme Court may quash an act, order or direction done or made by a Court officer on the ground that it was done or made without jurisdiction or power.[1] The power conferred by s 36 is intended 'to permit judicial review in those situations in which the specified prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies'.[2]
[1] Magistrates Court Act s 36(1).
[2] Rayney v AW [2009] WASCA 203 [27]; A v Maughan [2016] WASCA 128 ; (2016) 50 WAR 280 [20].
Emirates applies on two grounds:
1.The learned Magistrate erred in failing to apply s 28(2) of the Magistrates Court (Civil Proceedings) Act 2004, which required that the case be dealt with under the general procedure.
2.Further or in the alternative, the learned Magistrate erred in failing to find that the case 'involves an important principle of law or complex facts or issues' within the meaning of s 28(3)(b) of the Magistrates Court (Civil Proceedings) Act 2004, thereby requiring that the case be dealt with under the general procedure.
On 10 October 2019, on an ex parte application by Emirates, I made orders for the magistrate and Mr Kavianipour to satisfy the court that the orders of the magistrate on 16 August 2019 should not be set aside, and stayed the proceedings in the Magistrates Court.
Is the decision reviewable
As a preliminary point, Mr Kavianipour submitted that the court has no power to review the decision of the magistrate. There were several strands to the argument. First, under s 28 of the Magistrates Court (Civil Proceedings) Act, the magistrate had power to decide whether to deal with the matter under minor claims procedure or general procedure. Second, under s 32(1)(a) of the Act, no appeal lies against an order made in the course of proceedings in a minor case. Third, the decision of the magistrate is not a reviewable decision within O 56 r 1 of the Rules of the Supreme Court 1971 (WA).
I do not accept the argument on the preliminary point. First, s 28 confers power on the magistrate to make an order, but s 28(2) limits that power. An inferior court, even when acting wholly within the general area of its jurisdiction, will fall into jurisdictional error by doing something which it lacks authority to do.
If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or 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.[3]
[3] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 177.
The effect of s 28(1) and (2) of the Magistrates Court (Civil Proceedings) Act is to make it a condition of the court proceeding in the minor case procedure that the jurisdiction being exercised is not jurisdiction conferred on the court by a law of the Commonwealth. If jurisdiction is conferred by federal law, the Magistrates Court does not have power to proceed under the minor case procedure and would fall into jurisdictional error in doing so, even though the claim is a minor case.
Second, these proceedings are not an appeal, and s 32 does not apply.
Third, O 56 does not apply to this application. The Rules of the Supreme Court provide specifically for proceedings under s 36 in O 56A.
I am satisfied that the decision is reviewable under s 36 and O 56A if Emirates can show that the magistrate acted without power.
The magistrate's decision is also reviewable for error of law on the face of the record.
The Magistrates Court Act does not purport to limit the power of this court, on review under s 36, to jurisdictional error, but provides for review on any ground that might have justified an order of certiorari:
an order in the nature of certiorari can be made so as to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power irrespective of whether the error of law also constitutes a breach of a condition of the valid exercise of that power.[4]
[4] Wingfoot Australia Partners Pty Ltd v Kocack [2013] HCA 43; (2013) 252 CLR 480 [26].
Consideration
The critical question is whether, in determining the claim brought by Mr Kavianipour, the Magistrates Court will be exercising jurisdiction conferred by a law of the Commonwealth.
Mr Kavianipour's claim was for failure to provide a service, by failing to have double strollers available at Dubai International Airport. He relied on s 29(1)(g) of the Australian Consumer Law, alleging that Emirates made a false or misleading representation that services had accessories or benefits. He further relied on the guarantee of fitness for purpose in s 61(2) of the Act.
Emirates submitted that the claim involves federal jurisdiction because the event or omission founding the claim occurred during international carriage by air, within the meaning of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 (Montreal 1999 Convention). The Montreal 1999 Convention is Schedule IA to the Civil Aviation (Carriers' Liability) Act 1959 (Cth), which, by s 9B, gives it the force of law in Australia. Emirates' defence to the claim arises under the Montreal 1999 Convention.
Chapter III of the Montreal 1999 Convention provides for the liability of the carrier and the extent of compensation for damage. By Article 29:
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non‑compensatory damages shall not be recoverable.
In its response to the claim, Emirates argued that, while the claim is brought under the Australian Consumer Law, the loss or damage claimed is for the inconvenience, discomfort, distress and upset resulting from Emirates' alleged failure to provide double strollers at Dubai International Airport. Emirates submitted that the claim is, in reality, one to which the Montreal 1999 Convention applies, and Emirates can assert defences under the Convention.
A matter that arises under federal law, that is, under a law of the Commonwealth Parliament, is within the original jurisdiction of the High Court of Australia pursuant to s 76 of the Constitution. The jurisdiction of any State court to deal with such a matter is conferred by s 39(2) of the Judiciary Act 1903 (Cth).
A matter arises under a federal law, even if the claim is for relief of a kind available under State law, 'if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth'.[5] Emirates directly asserts a defence arising under the Montreal 1999 Convention and the Civil Aviation (Carriers' Liability) Act. Once that defence is raised, Emirates submitted, the whole of the matter is determined in the exercise of federal judicial power. The matter before the Magistrates Court, accordingly, involves jurisdiction conferred on that court by the Judiciary Act. By s 28(2) of the Magistrates Court (Civil Proceedings) Act, the Magistrates Court must order the case be dealt with under general procedure.
[5] LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575, 581.
Mr Kavianipour submitted that his claim is for misleading advertising, and the claimed defences under the Civil Aviation (Carriers' Liability) Act 1959 are colourable, that is, made for the improper purpose of fabricating federal jurisdiction.[6]
[6] See Qantas Airways Limited v Lustig [2015] FCA 253 [88] ‑ [90].
I do not accept that the defence is colourable. There is a genuine controversy raised by Emirates' defence as to which the court will be required to exercise its jurisdiction.[7]
[7] Johnson Tiles Pty Ltd v Esso Australia [2000] FCA 1572; (2000) 104 FCR 564 [88].
In my opinion, the Emirates' submission is correct. The Magistrates Court will be exercising jurisdiction conferred on it by the Judiciary Act. It must order that the case be dealt with under general procedure.
An order should be made pursuant to s 36(4) of the Magistrates Court Act setting aside the order of 16 August 2019, which dismissed the application by Emirates for the matter to be dealt with under the general procedure, and listing the matter for trial as a minor case. It should not be necessary, in light of these reasons, to make any further consequential orders as to the hearing of the claim in the Magistrates Court.
It is not necessary to deal with ground 2 of the application because ground 1 wholly disposes of the matter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson9 JANUARY 2020
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