The Queen v Hemming; Ex Parte

[1992] TASSC 108

Serial No B31/1992

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              The Queen v Hemming; ex parte Nation [1992] TASSC 108; B31/1992

PARTIES:  THE QUEEN
  v
  HEMMING, A, ex parte NATION

FILE NO/S:  M408/1991
DELIVERED ON:  6 July 1992
JUDGMENT OF:  UNDERWOOD J

Judgment Number:  B31/1992
Number of paragraphs:  13

Serial No B31/1992

List "B"

File No M408/1991

THE QUEEN v A HEMMING ex parte NATION

REASONS FOR JUDGMENT  UNDERWOOD J

6 July 1992

Prerogative Writ – Certiorari – Small Claims Division of the Magistrates' Court – Denial of natural justice – Order absolute.

1. The order nisi in these proceedings calls upon a magistrate to show cause why a writ of certiorari should not issue to bring before this Court and have quashed, a determination made by him in the exercise of his jurisdiction in the Small Claims Division of the Magistrates' Court. The learned magistrate appeared by counsel who advised the court that his client would abide the order of the court. Counsel was then given leave to withdraw. The prosecutor also appeared by counsel and the other respondent, the defendant in the Small Claims Division proceedings, appeared in person.

1. The Magistrates Court (Small Claims Division) Act 1989, s32 provides (inter alia) that no writ of certiorari shall issue in respect of any proceeding in the Small Claims Division of the Magistrates' Court except on one or more of the three grounds specified in the section. The only one relevant to these proceedings is "that the party was denied natural justice by the magistrate in the course of the proceedings in respect of which the order was made." "Proceedings" clearly means all the acts done and steps taken from invocation of the jurisdiction of the court to the final order or judgment. See Berry (Herbert) Associates v IRC [1977] 1 WLR 1437 at 1446; Smalley v Robey & Co Ltd. [1962] 1 QB 577 at 581.

1. The prosecutor invoked the jurisdiction of the court by completing and filing a claim in accordance with the provisions of the Act, s12(1) and reg.4. In it he claimed that on 17 October 1988 the respondent, a veterinary surgeon, was contracted to attend and treat his mare and foal in a paddock at Dynnyrne at 4.30pm "but that he did not arrive until 5.50pm." By that time, the claim alleged, the foal had died due to lack of veterinary care. The claim was sent to the respondent with a form containing directions. One of those directions was that a copy of the respondent's defence would be sent to the prosecutor who may either withdraw the claim or do nothing. The form went on to advise that if the claim was not withdrawn a notice of hearing would be issued. The next step in the proceedings was a Registrar's conference, called pursuant to reg7. It proved impossible to resolve the dispute at the Registrar's conference, so the Registrar reported that fact and wrote a letter to Mr. Worsey at the Court of Petty Sessions advising, amongst other things that "the respondent is known personally to both Magistrate Hemming and Sikk".

1. At some stage, either before or after the Registrar's conference, the respondent wrote to the Small Claims clerk and enclosed a copy of the respondent's letter to the Australian Veterinary Association (Tasmanian Division) with respect to the subject matter of the small claim, and a copy of the Association's letter to the prosecutor. The letter that enclosed these documents concluded with the sentence, "I will set out my defence more fully in a further letter." Regulation 6 provides that notice of a defence shall be given on a form provided or approved by the Registrar. So far as I am aware no form has been provided or approved.

1. On 30 October 1990 the respondent wrote the following letter to the Registrar of the Small Claims Division:

"30 October 1990

The Registrar

Small Claims Court

73 – 81 Murray Street

Dear Sir

re L Nation Claims No 39990

I enclose copies of the correspondence between myself and the Australian Veterinary Association (Tas Division) on this matter in 1988. The undated letter to Mr McCulloch was prepared after the hearing earlier this year.

Had Mr Nation requested my attendance at the foal when he first contacted me, I would have been able to attend earlier in the day. When he did ask me to attend, (about 3 pm), I made it clear that I could not come immediately. When he requested urgent attention, (at about 5 pm when I was completing surgery), I attended as soon as I possibly could.

At 4pm when I had to choose which patients treatment to delay, I had examined the pup and its need was evident to me. I had no indication that the foal was in danger because I had not seen it. I was unable to contact Mr Nation to tell him of the delay.

Finally, if I had arrived at 4.45 pm, given the foal's condition by then, the lack of shelter, and the weather, it is extremely unlikely that my treatment would have saved its life.

There are five enclosures.

Yours faithfully

G R Baxter BVSc"

1. According to the affidavit of Mr Huxtable, Deputy Registrar of the Court of Requests Hobart, enclosed with this letter was a copy of:

(i)a letter from the prosecutor to Dr. Holm (Secretary of the Australian Veterinary Association – Tasmanian Division) dated 18 October 1988;

(ii)       a letter from the respondent to the same person dated 30 October 1988;

(iii)      the respondent's letter to the Small Claims clerk referred to above in these reasons;

(iv)      the two letters earlier enclosed with that last mentioned letter to the Small Claims clerk.

^(v)

1. The small claim eventually came before the learned magistrate who heard from both the prosecutor and the respondent and concluded the proceedings by making an order that the claim be dismissed. That order is the subject matter of these proceedings.

1. The unchallenged affidavit evidence of the prosecutor is that, at the hearing before the learned magistrate, he asked if the respondent had filed a defence and that the learned magistrate replied, "He did not and was not required to." After the conclusion of proceedings the prosecutor wrote to an officer in the Court of Requests (Small Claims Division) asking for a copy of the respondent's defence. That officer responded in writing:

"As Mr Baxter did not file a defence, I am unable to exceed to your request. I understand the Magistrate conveyed to you during the court hearing that there was not a defence filed."

1. The prosecutor then inspected the file at the court and discovered the letter dated 30 October 1990. On the return of the order nisi it is not disputed that the letter had never been shown to the prosecutor prior to the conclusion of the proceedings. Whether that letter constituted "a defence" or not, natural justice demanded that it be shown to the respondent, and that he be given a copy on request.

1. Perhaps by reason of administrative oversight, the learned magistrate received from one of the parties to the proceedings before him, material which was not shown to the other party until after the proceedings had been concluded. Whether this material is described as a defence or just a letter is immaterial. The receipt of that material without disclosure to the respondent constituted a denial of natural justice. In JRL; Ex parte CJL (1986) 161 CLR 342, Mason J (as he then was) said at 350:

"A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even–handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented before him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide." [My emphasis].

1. See also Allinson v General Council of Medical Education and Registration [1894] 1 Q.B. 750; R v Magistrates' Court at Lillydale; Ex parte Ciccone [1973] VR 122 at 127; The City of St Kilda v Evindon Pty Ltd [1990] VR 771.

1. It is unnecessary to deal with the question of apparent bias arising from the notation on the file to the effect that the respondent was known to the learned magistrate. There was no material before me to indicate the source of the information noted, nor whether there was any substance in it. However, its existence serves to reinforce the denial of natural justice arising from the failure to disclose the respondent's letter of 30 October 1988 to the prosecutor.

1. The order nisi is made absolute. The order of the learned magistrate is quashed. The small claim is remitted to another magistrate sitting in the Small Claims Division of the Magistrates' Court for determination in accordance with law.