Tham v Malone (Stipendiary Magistrate) - [2000] WASCA 337

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: THAM -v- MALONE (STIPENDIARY MAGISTRATE) & ANOR [2000] WASCA 337

CORAM: PIDGEON J
IPP J
PARKER J

HEARD: 20 SEPTEMBER 2000

DELIVERED : 20 SEPTEMBER 2000

PUBLISHED : 8 NOVEMBER 2000

FILE NO/S: CIV 1075 of 2000

BETWEEN: PUI-CHING THAM
Applicant
AND
PETER MALONE (STIPENDIARY MAGISTRATE)
First Respondent
M IVEY PTY LTD (ACN 060 813 881)
Second Respondent

Catchwords:

Prerogative writs - Certiorari - Court of Petty Sessions - Whether error of law disclosed on face of record - Turns on own facts

Legislation:

Dividing Fences Act 1961 (WA)

Result:

Order nisi for certiorari discharged

Representation:

Counsel:

Applicant:     Mr R W Bower
First Respondent           :     No appearance
Second Respondent       :     No appearance

Solicitors:

Applicant:     Corsers
First Respondent           :     No appearance
Second Respondent       :     No appearance

Case(s) referred to in judgment(s):

Basell v Meredith, unreported; SCt of WA (Heenan J); Library No 970449, 9 September 1997
Craig v South Australia (1995) 184 CLR 163
Hockey v Gelland (1984) 157 CLR 124
Palmer v Lintott [1981] WAR 157

Case(s) also cited:

Annetts v McCann (1990) 170 CLR 596
Bloch v Bloch (1981) 37 ALR 55
Creasy & Ors v Hot Holdings Pty Ltd & Anor, unreported; FCt of WA (Sheller J); Library No [2000] WASCA 206; 4 August 2000
Heatley v Tasmanian Racing and Gaming Commission (1977) 14 ALR 519
Myers v Myers [1969] WAR 19
Pollit v R (1992) 174 CLR 558
Salemi v MacKellar [No 2] (1977) 137 CLR 396
Sali v SPC Ltd (1993) 116 ALR 625

PIDGEON J: I would discharge the orders. I do so for the reasons to be published by Parker J. I agree with those reasons.
IPP J: I have read the reasons to be published by Parker J. I am in agreement with those reasons and have nothing further to add.
PARKER J: This is the return of an order nisi for a writ of certiorari directed to a Stipendiary Magistrate sitting in the Court of Petty Sessions at Kalgoorlie.
By complaint dated 7 April 1999 the second respondent alleged that the applicant failed to pay half of the estimated value of the dividing fence between adjoining properties they owned being 4C and 6 Albara Street, Kalgoorlie. The complaint alleged that notice had been given dated 7 December 1998. The complaint originally sought an order pursuant to s 13(4) of the Dividing Fences Act 1961 ("the Act").
The complaint was heard and determined by the learned Magistrate, the first respondent, on 29 July 2000. The applicant was represented by counsel at the hearing.
The complaint and charge sheet in the standard combined form is in evidence before this Court. It discloses that the complaint was amended, apparently in the hand of the learned Magistrate, to seek an order pursuant to s 15(7) of the Act. The charge sheet records an order under the hand of the learned Magistrate in the following terms:
"Order that the Defendant pay to the Complainant $1241 being a ½ share of the cost of repairing the dividing fence between 4C and 6 Albara Street, Kalgoorlie."
Section 15(7) of the Act provides in part:
"(7) Where an owner, who has been given a notice pursuant to subsection (1) of this section, fails to advise the owner giving the notice as provided in subsection (3) of this section within fourteen days after the receipt by him of the notice, the owner giving the notice may repair the fence and demand and recover from the owner to whom the notice was given, one-half of the cost of repairing the fence …"
The essence of the distinction between s 15(7) and s 13(4) of the Act is that the former deals with the situation where a fence is repaired whereas the latter deals with the situation where a dividing fence is

constructed; and see Palmer v Lintott [1981] WAR 157, Basell v Meredith, unreported; SCt of WA (Heenan J); Library No 970449, 9 September 1997.

It will be seen that an order of the type made by the learned Magistrate is contemplated by s 15(7) of the Act.
The applicant seeks to contend inter alia that it was not open to the learned Magistrate to make an order pursuant to s 15(7) of the Act as, it is submitted, on the true interpretation of the Act, there was not a repair of an existing fence but the construction of a fence of a different character from that which had previously existed. It is not suggested that the Act does not allow for an order against an adjoining owner when a fence of a different character is constructed, but it is contended that this is not the subject of s 15(7) of the Act pursuant to which the learned Magistrate purported to act.
In the reasons of the High Court, comprising Brennan, Deane, Toohey, Gaudron and McHugh JJ, in Craig v South Australia (1995) 184 CLR 163 at 175 - 176, it was said:
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and 'error of law on the face of the record'."
The learned Magistrate in this case was sitting as a Court of Petty Sessions. It may be accepted that this is an inferior court within the meaning of that notion as considered in Craig v South Australia (supra). The extent of the ordinary jurisdiction of an inferior court, in the context of certiorari, was considered in Craig v South Australia at 179 - 180. This discussion confirms that what the applicant seeks to advance in this case does not involve jurisdictional error in the relevant sense. One submission of the applicant sought to raise a failure to accord procedural fairness because there was no adjournment to allow the applicant to reconsider its position when the complaint was amended to raise s 15(7) of the Act, but this is without real substance because of the substantial similarity of the factual and legal issues relevant whichever provision of the Act was relied on. There is no issue of fraud.
The issue falls to be determined, therefore, according to whether the applicant can demonstrate an error of law on the face of the record. This was accepted by counsel for the applicant.
The applicant first seeks to contend that as the amendment of the complaint to raise s 15(7) rather than s 13(4) was apparent on the face of the complaint, this is sufficient to demonstrate the error. A complaint may properly be amended, however, so the mere fact of an amendment does not disclose an error of law. It was necessary, therefore, in an attempt to make good the submission that the amendment to the complaint disclosed an error of law, for the appellant to turn to the transcript of the proceedings and evidence. That immediately gave rise to the question whether the transcript was part of the record for relevant purposes.
This issue was considered in Craig v South Australia at 180 - 183. At 182 the following relevant conclusion was reached:
"The determination of the precise documents which constitute 'the record' of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that '[o]rdinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication'"; Hockey v Gelland (1984) 157 CLR 124 at 143 per Wilson J.
In a footnote to that passage their Honours added:
"It is clear from the context that Wilson J used the word "adjudication" in the sense of the actual order or ruling."
There is no statutory prescription which has the effect of modifying the ordinary position for the purposes of this case. It is not open to the applicant, therefore, to seek to rely on the transcript of proceedings and evidence to demonstrate that an error of law occurred. In this case the combined form of complaint and charge sheet in the standard form is the extent of the record for relevant purposes. It contains the documentation which initiated the proceedings, the form of complaint and the adjudication of the Court.
The applicant is not able to demonstrate from this record that any error of law affected the determination of the complaint. As was made clear in Craig v South Australia at 175 proceedings by way of certiorari are not an appellate procedure and there is no scope for a general review of the decision of the learned Magistrate. On the applicable principles there is no basis demonstrated on which the order nisi may be made absolute.
There is another consideration which tells against the grant of a writ of certiorari in the circumstances of this case. Certiorari is a discretionary remedy. It is the scheme of the Act that neighbours in dispute over dividing fences should have a convenient and relatively inexpensive means of resolving the dispute. A Court of Petty Sessions, which has been chosen by the legislature to hear and determine such disputes, is the court most conveniently available throughout the State. Its procedures are summary. To further limit the expense the Act provides that the orders made in respect of such disputes are "final". Hence, the applicant has proceeded by way of certiorari.
In the present case the order made was for the payment of $1241. That sum represents half the expense incurred by the second respondent in respect of the fence which now divides the two properties. In general terms the need for, and the reasonableness of, the expense so incurred has been considered and determined by the learned Magistrate in favour of the second respondent. The essence of the applicant's contention is that the issue was considered and decided under the wrong provision of the Act. It is not the case that the applicant contends there is no provision for an order to be made in the circumstances of this case.
Given these circumstances there are clear and persuasive reasons, as a matter of discretion, against granting a writ of certiorari.
When the return of the order nisi was heard on 20 September 2000 the court ordered that the order nisi should be discharged. It was indicated that reasons would be given at a later date. These are my reasons for joining in that decision.