Re Potter; Ex parte Coppin
[2013] WASC 462
RE POTTER; EX PARTE COPPIN [2013] WASC 462
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 462 | |
| Case No: | CIV:2798/2013 | 16 DECEMBER 2013 | |
| Coram: | BEECH J | 19/12/13 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for review order dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHARON COPPIN DEAN POTTER |
Catchwords: | Magistrates Application for review order Natural justice Residential Tenancies Act 1987 (WA) Application dismissed by magistrate in unexplained absence of applicant Whether arguable breach of natural justice |
Legislation: | Magistrates Court Act 2004 (WA), s 36 Residential Tenancies Act 1987 (WA), s 17, s 20, s 26 |
Case References: | Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Cameron v Cole (1944) 68 CLR 571 Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418 Ex parte Bone; Robins and the Shire of Greenough [1990] WAR 94 Kioa v West (1985) 159 CLR 550 Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 Miller v McCormick [No 2] [2012] WASC 347 Opitz v Repatriation Commission (1991) 29 FCR 50 R v County of London Quarter Sessions Appeal Committee; Ex parte Rossi [1956] 1 All ER 670 Rayney v AW [2009] WASCA 203 Re Cockram; Ex parte Miller [2009] WASC 350 Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 Seddon v Medical Assessment Panel [2011] WASC 237 Sullivan v Department of Transport [1978] 1 ALD 383 Taylor v Taylor (1979) 143 CLR 1 Wiseman v Wiseman [1953] P 79 Woolworths Ltd v The Commissioner of Police [2013] WASC 413 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
SHARON COPPIN
Applicant
AND
DEAN POTTER
Respondent
Catchwords:
Magistrates - Application for review order - Natural justice - Residential Tenancies Act 1987 (WA) - Application dismissed by magistrate in unexplained absence of applicant - Whether arguable breach of natural justice
Legislation:
Magistrates Court Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 17, s 20, s 26
Result:
Application for review order dismissed
Category: B
Representation:
Counsel:
Applicant : Ms M L Billeam
Respondent : No appearance
Department of Housing and Works : Mr D H Solomon
Solicitors:
Applicant : Pilbara Community Legal Service
Respondent : No appearance
Department of Housing and Works : Solomon Brothers
Case(s) referred to in judgment(s):
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Cameron v Cole (1944) 68 CLR 571
Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418
Ex parte Bone; Robins and the Shire of Greenough [1990] WAR 94
Kioa v West (1985) 159 CLR 550
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
Miller v McCormick [No 2] [2012] WASC 347
Opitz v Repatriation Commission (1991) 29 FCR 50
R v County of London Quarter Sessions Appeal Committee; Ex parte Rossi [1956] 1 All ER 670
Rayney v AW [2009] WASCA 203
Re Cockram; Ex parte Miller [2009] WASC 350
Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360
Seddon v Medical Assessment Panel [2011] WASC 237
Sullivan v Department of Transport [1978] 1 ALD 383
Taylor v Taylor (1979) 143 CLR 1
Wiseman v Wiseman [1953] P 79
Woolworths Ltd v The Commissioner of Police [2013] WASC 413
- BEECH J:
Introduction
1 Ms Coppin applied to the Magistrates Court to set aside an order evicting her from her home which she rented from the Department of Housing and Works. She arrived at court about an hour late on the day appointed for the hearing. By then, her application had been dismissed.
2 The circumstances leading to Ms Coppin's failure to attend on time, and the serious consequences of the eviction order for her and her children are capable of giving rise to considerable sympathy. But this is, in substance, an application for a judicial review of the magistrate's decision. In the circumstances of this case, the only available ground for a review order is that Ms Coppin has been denied natural justice. On this application, the only question for the court is whether it is arguable that Ms Coppin has been denied natural justice.
3 For the reasons that follow, I am not satisfied that that is arguable. Consequently, Ms Coppin's application for a review order must be rejected.
The facts
4 The following facts emerge from the two affidavits filed by Ms Coppin.
5 Ms Coppin has been a tenant at 42 Cleaver Terrace, Roebourne, since July 2012. The Department of Housing and Works (DOH) is the landlord.
6 Ms Coppin lives at the property with three of her children.
7 On 27 May 2013, DOH lodged an application under the Residential Tenancies Act 1987 (WA) to terminate the tenancy agreement because of default on the part of Ms Coppin in payment of rent. The application was listed for 27 June 2013. Ms Coppin did not become aware of the hearing on 27 June 2013.
8 The application was heard in Ms Coppin's absence. The registrar ordered that the tenancy agreement be terminated with immediate effect, and that she deliver up possession.
9 Subsequently, Ms Coppin became aware of the eviction order. On 15 July 2013, she attended Roebourne court. She completed an application to set aside the registrar's decision. The application was listed for 29 August 2013 at 9.30 am.
10 The arrears of rent were $3,814.20. Ms Coppin believed that in order to succeed in her application she would need to pay off the arrears of her rent by no later than the court date.
11 She was not able to raise the necessary funds until the morning of the hearing.
12 On 29 August 2013, Ms Coppin attended the Pilbara Community Legal Service office in Karratha at about 8.30 am. Ms Coppin said that she would attend at her bank to obtain the money, and make the payment at the post office prior to returning to Roebourne to attend court. At that stage, Ms Coppin understood that the matter was listed for 10.00 am, although it was in fact listed for 9.30 am.
13 Ms Coppin's bank does not have a branch in Roebourne. She drove to Karratha to withdraw the money. At about 9.30 am she withdrew the funds and then attended the Karratha post office where she paid $6,000 towards her rent at 9.56 am.
14 Based on previous experience in the Roebourne Magistrates Court (on unrelated matters), Ms Coppin expected that her matter would not be called until later in the day. It evidently did not occur to her that she could and should have called the court to inform the court that she would be late.
15 She arrived at the court at approximately 10.30 am. She was informed that her application had been heard and dismissed. The matter was evidently called at 10.05 am and concluded at 10.08 am.
16 There is no evidence as to whether Ms Coppin's arrival at the court was brought to the attention of the magistrate.
17 On 2 September 2013, Ms Coppin made a further application to set aside the order of 27 June 2013. That application was dismissed on 12 September 2013.
18 Ms Coppin did not make any application to set aside the order made on 29 August 2013.
The application
19 Ms Coppin applies for an order under s 36 of the Magistrates Court Act 2004 (WA)that the magistrate show cause as to why the order made on 29 August 2013 should not be set aside. She applies for the order on the ground that she has not been heard in relation to her application to set aside the registrar's decision.
20 On 5 December 2013, the first return date for the application, the court ordered that Ms Coppin give notice of the application to DOH, being a party who would be affected by the setting aside of the magistrate's order. DOH appeared at the hearing of the application on 16 December 2013 after giving notice of its intention to oppose the application.
The legislative framework
21 Section 36 of the Magistrates Court Act provides relevantly as follows:
36. Supreme Court's powers to control Court
(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.
23 Section 26 of the Residential Tenancies Act limits the grounds on which the power under s 36 of the Magistrates Court Act can be exercised in respect of an order made under the Residential Tenancies Act. Section 26(2) of the Residential Tenancies Act provides as follows:
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.
24 In this case, consistently with s 26(2), Ms Coppin contends that she has been denied natural justice.
25 Section 26(1) precludes an appeal against any order made under the Residential Tenancies Act.
26 Section 26 is within pt III of the Residential Tenancies Act, dealing with the determination of disputes. Section 15 invests the court with a range of powers in relation to claims of breach of a residential tenancy agreement, and in relation to disputes under such agreements. Section 14 provides that:
Proceedings under this 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.
27 Also within that part is section 17, which provides as follows:
17. Application to vary or set aside order
(1) A person who is or was a party to any proceedings on an application under this Act may apply to a competent court for an order varying or setting aside an order made in those proceedings if the application was heard in the person's absence.
(2) An application to vary or set aside an order, other than an order under section 84, must be made within 14 days after the making of the order.
28 Section 20 sets out powers of the court, including under s 20(c) a power to proceed to hear and determine an application in the absence of any party.
The test for the making of a review order
29 Like Corboy J in Saldanha v Fujitsu Australia Ltd [No 2],2 I consider the appropriate analogy as to the test for determining whether a review order should issue is with an application for an order nisi.
30 Thus, it is necessary for Ms Coppin to establish, at least, an arguable case that she was denied natural justice. For reasons that will emerge, I do not need to deal with the question of whether Ms Coppin must also show a case with reasonable prospects.3
Ms Coppin's submissions
31 Ms Coppin submits, in summary:
(1) the fundamental principle of natural justice is that 'a party needs to be heard';
(2) in this case, Ms Coppin has not been heard;
(3) in the circumstances of this case, the magistrate's failure to adjourn Ms Coppin's application on account of her unexplained absence was, arguably at least, a breach of the requirements of natural justice;
(4) relevant to proposition (3) is that the order Ms Coppin was applying to set aside concerned her residential tenancy, and thus had serious consequences for her;
(5) circumstances that are unknown to the court, as to why a party is absent, are nevertheless relevant to whether proceeding in the party's absence is a breach of natural justice;
(6) the propositions in (3) and (5) are supported by the decision of Simmonds J in Re Cockram; Ex parte Miller;4 and
(7) the existence of the right of a party absent when an order is made to apply under s 17 to set aside the order demonstrates that the making of an order in the party's absence denies that party's right to be heard and is a breach of natural justice.
Is it arguable that there was a denial of natural justice?
32 I do not accept these submissions. In my opinion, for the reasons that follow, it is not arguable that by failing to adjourn the application on 29 August 2013, the court breached the requirements of natural justice.
33 I adopt what Hall J said in Miller v McCormick [No 2]5 as follows:
The provisions of the Residential Tenancies Act and the reference to natural justice in s 26 make it clear that some form of hearing is required. However, as is so often the case, the issue is what type of hearing. In the present case, that question must be guided by the terms of the legislation.
The Residential Tenancies Act is not prescriptive in terms of whether evidence must be on oath, whether witnesses should be examined or cross-examined or whether there should be a process for formally proving documents. To the contrary, it allows for a much more informal approach.
In Russell v Duke of Norfolk [1949] 1 All ER 109, Tucker LJ said:
'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case (118).'
What is required is that the hearing be a fair one, not that it complies with some fixed body of procedural rules. What is fair in a given situation depends upon the circumstances: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 504 (Kitto J). The onus of establishing that the standard of fairness has not been met will lie upon the party who seeks to prove a breach of natural justice. It must be shown that the procedures adopted were unfair in the circumstances or that the applicant has suffered a 'practical injustice': Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 13 - 14 (Gleeson CJ).
The factors that will be relevant in considering the content of the requirements of natural justice in a particular case will include the statutory context: National Companies & Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296, 326 (Brennan J). The consequences of a decision are also relevant. The extent of participation in proceedings permitted by natural justice will tend to increase in proportion to the seriousness of the possible consequences: Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859; (2002) 122 FCR 78, 100 (Weinberg J).
If an oral hearing is required cross-examination may not be an essential element of such a hearing. Cross-examination may be thought to be inappropriate because it increases the length, formality and cost of proceedings: NCSC v News Corp (314) (Gibbs J); Hurt v Rossall (1982) 43 ALR 252, 259 (Fox J).
34 Contrary to Ms Coppin's submissions, I do not accept that it is, even arguably, a fundamental principle of natural justice that a party must be heard. In my view, the relevant fundamental principle of natural justice is that a party must be given a reasonable opportunity to be heard.
35 Natural justice requires that a party to a case is given a reasonable opportunity to present his case.6 Where a party, through no fault of his own, is deprived of that entitlement, any order made against him can, prima facie at least, be set aside.7 Natural justice requires only that a party be given a reasonable opportunity to present his or her case. It is not the function nor the duty of the court to ensure that the party takes the best advantage of that opportunity.8
36 In my view, the provision to an affected party of an opportunity to be heard is at the heart of the hearing rule. That that is so seems to me also to be illustrated by what is required by procedural fairness when a tribunal receives information, adverse to a party's interest, that is credible, relevant and significant. In those circumstances, natural justice requires the tribunal to give that party an opportunity to deal with the adverse information.9
37 In some situations, a failure to adjourn a hearing so as to enable a party to be present or to give evidence may amount to a denial of natural justice. For example, in Opitz v Repatriation Commission,10 Hill J held that, in circumstances where an earthquake prevented the applicant giving evidence that would have been material, the tribunal's refusal to adjourn the hearing on that ground breached the requirements of natural justice. There are even cases in which a failure to grant an adjournment can be a breach of natural justice although no application for an adjournment was made.11
38 Whether in a particular case a failure to adjourn amounts to a denial of natural justice is a fact sensitive question to be decided in all the circumstances of the case.12
39 As I have said, the statutory context is relevant to the content of the requirements of natural justice. The following features of the Residential Tenancies Act should be noticed:
(a) by s 14, the court was required to hear and determine the application as expeditiously as possible;
(b) by s 20(c), the court had express power to hear and determine the application in the absence of any party; and
(c) by s 17, a party in whose absence an order is made could apply within 14 days to vary or set aside the order.
40 In that statutory context, natural justice does not, even arguably, require that, if an applicant for an order setting aside an eviction order with notice of the hearing is, without explanation, absent at the time appointed for the hearing, the application be adjourned to give the applicant a further opportunity to appear on the application. The potential prejudice to the absent applicant, and potential consequential injustice from proceeding in the applicant's absence, are limited, in a significant way, by s 17. That section ensures that any extenuating circumstances that might explain the absence of the applicant can be considered in determining whether to set aside the order. It also enables the court to avoid any injustice to the absent party flowing from an adverse decision made in the party's absence if the court later determines that, in all the circumstances, it is just to do so.
41 Moreover, the statutory requirement for expeditious resolution of all applications militates against a conclusion that natural justice required the court to adjourn the application in Ms Coppin's unexplained absence.
42 Whether the magistrate acted inconsistently with the requirements of natural justice is to be judged objectively, in light of the facts and circumstances known to the court and, perhaps, in light of any additional facts that ought to have been known by the court.
43 All that the court knew in this case was that:
(1) The initial application by DOH was made on notice to Ms Coppin and determined in her absence, as she did not attend.
(2) Ms Coppin's application to set aside that order had been listed, on notice to her, to be heard on 29 August 2013 at 9.30 am.
(3) By 10.00 am Ms Coppin had not appeared, and had not communicated with the court.
44 The court knew nothing of Ms Coppin's reasons for not appearing. There is no suggestion that the Magistrates Court should have known anything about why Ms Coppin was not there. In the circumstances, natural justice did not require the court to adjourn the hearing of Ms Coppin's application to another date, or to stand the matter down and attempt to contact her. In my view, the contrary is not arguable.
45 Ms Coppin relies on what was said by Murphy J in Taylor v Taylor13 as follows:
It is a fundamental principle of justice that a party affected must have the opportunity to be heard before any order is made against him (unless there are special circumstances, such as urgent preservation orders). The Family Court of Australia, as a federal court, is (as the Supreme Court, as a court vested with federal jurisdiction in matrimonial causes, was) vested with the judicial power of the Commonwealth under Ch V of the Constitution. An implication should be drawn from Ch V of the Constitution and from our judicial history that such a basic principle is to be applied in the exercise of that judicial power.
If Mr Taylor had no opportunity to be heard (by reason of some fault attributable to the court or Mrs Taylor) then the right to have the case reopened (at least unless some factor such as acquiescence made the order immune from challenge) would derive from the implication of fundamental justice which would be applicable irrespective of any provision of the Family Law Act. However, the fact that Mr Taylor was not heard by Woodward J was not because he had no opportunity to be heard. It was not the fault of Mrs Taylor nor of the Court. The order was made regularly. There was no breach of the fundamental principle of justice. However, there is a longstanding principle that an order made against an absent party may be set aside where the absence is not the fault of the other party or the Court (even where the absence was the absent party's fault), or where the absence is excusable, and considerations of delay, acquiescence or prejudice are not countervailing. For example, see Reg v London Quarter Sessions [1956] 1 All ER 670, at pp 635-676; Wiseman v Wiseman [1953] P 79, at p 96.
A rule may be recognized that where (in the exercise of federal jurisdiction) an order has been made against a person who, through his own fault (or without the fault of the court or the other party) has not availed himself of an opportunity to be heard, the court may in its discretion set aside the order and allow the matter to be reheard. Such a rule may properly be characterized as a federal common law rule of judicial power. This rule should be excluded only by unmistakable language, that is, express words or necessary implication. Section 79A does not contain language unmistakably evincing an intention to exclude such a common law rule. The discretion to reopen should be applied only with caution. Factors to be considered are the presence or absence of some real explanation for failure to use the opportunity to be heard, delay, acquiescence, prejudice to the other party.
46 In my view, nothing said by Murphy J in these passages assists Ms Coppin's contentions in this case. Murphy J referred to a principle that an order made against an absent party may be set aside where the absence is not the fault of the other party or the court, and even where the absence was the absent party's fault. His Honour characterised that as giving rise to a discretion on the part of the court to set aside the order. Nothing Murphy J said supports the view that, in such circumstances, the order made against the absent party is being set aside on grounds of breach of natural justice. Further, neither of the cases to which his Honour referred14 suggests that the setting aside would be on grounds of natural justice. To the contrary, in R v County of London Quarter Sessions Appeal Committee; Ex parte Rossi,15 Denning LJ said that if a party received proper notice and failed to attend, for example because he was ill, and the court not knowing of it heard the appeal in his absence, the order would have been regularly obtained, so that certiorari would not lie to quash it. However, the original court would have had an implied power to set aside the order made in his absence.
47 In my view, if a person fails to attend a hearing, and the hearing proceeds in the party's absence, subject to a statutory provision to the contrary, the court will generally have an implied or inherent power to set aside orders made in the absence of the party if it is in the interests of justice to do so. The exercise of such a power is not founded upon or dependent on a breach of natural justice. In some but not all cases in which an order is made in a party's absence, there will have been a breach of the requirements of natural justice. Generally (subject to contrary statutory provision), the power to set aside an order made in a party's absence is not limited to cases where there was a breach of the requirements of natural justice. For example, if a party was absent from a hearing because of a car accident on the way to court, the power to set aside could be exercised regardless of whether there had been any breach of natural justice. The source and basis of the power to set aside an order made in a party's absence is the court's overriding duty to do justice.
48 Ms Coppin also relies on the decision of Simmonds J in Re Cockram; Ex parte Miller. In that case, the applicant had not attended the hearing due to one or more serious medical conditions. It appears that, on the assumption that the magistrate had not been apprised of any explanation for her absence, his Honour concluded that there was an arguable case that there had been a denial of natural justice in proceeding in the unexplained absence of the applicant.16 It may be that that conclusion is based on some particular circumstances of the case. If and to the extent that the case might suggest that, generally speaking, a party to proceedings under the Residential Tenancies Act who has notice of an application and who has a good reason for not attending, but does not inform the court, has arguably been denied procedural fairness if the court proceeds to determine the application in the party's unexplained absence, then, for the reasons already given, I respectfully take a different view.
Conclusion
49 For the reasons I have given:
(1) it is not arguable that Ms Coppin was denied natural justice in the Magistrates Court on 29 August 2013; and
(2) consequently, the application for a review order must be dismissed.
1Rayney v AW [2009] WASCA 203 [27] - [31].
2Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 [61].
3 As to which see, for example, Seddon v Medical Assessment Panel [2011] WASC 237 [29] - [31].
4Re Cockram; Ex parte Miller [2009] WASC 350.
5Miller v McCormick [No 2] [2012] WASC 347 [18] - [23].
6Cameron v Cole (1944) 68 CLR 571, 589; Taylor v Taylor (1979) 143 CLR 1, 4, 22.
7Taylor v Taylor (22); Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 [137] - [138].
8Lashansky [138].
9Kioa v West (1985) 159 CLR 550, 629; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 [15].
10Opitz v Repatriation Commission (1991) 29 FCR 50.
11Sullivan v Department of Transport [1978] 1 ALD 383; Ex parte Bone; Robins and the Shire of Greenough [1990] WAR 94, 103 - 104; Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 278 ALR 418; Woolworths Ltd v The Commissioner of Police [2013] WASC 413 [118].
12Civil Aviation Safety Authority v Ovens [32]; Woolworths Ltd v The Commissioner of Police [99] - [100].
13Taylor v Taylor (20 - 21).
14R v County of London Quarter Sessions Appeal Committee; Ex parte Rossi [1956] 1 All ER 670, 675 - 676 and Wiseman v Wiseman [1953] P 79, 96.
15 675 - 676.
16 See [4], [23] - [25].
6