Woodward v Loadman (No 2)
[2008] NTSC 6
•12 FEBRUARY 2008
Woodward & Anor v Loadman & Anor (No 2) [2008] NTSC 6
PARTIES:WOODWARD, Lucinda
and
BRADDY, Vicki
v
LOADMAN, David
and
MINDIL BEACH SUNSET MARKETS ASSOCIATION INCORPORATED
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING GENERAL JURISDICTION
FILE NOS:SC 45 of 2007 (20711094)
LA 6 of 2007 (20625162)
DELIVERED: 12 FEBRUARY 2008
HEARING DATE: 6 FEBRUARY 2008
JUDGMENT OF: OLSSON AJ
CATCHWORDS:
JUDICIAL REVIEW -- APPEALS -- ORDER IN NATURE OF CERTIORARI -- MAGISTRATE
Order in the nature of certiorari against Local Court -- Originating motion seeking certiorari brought and argued without knowledge of privative provision in Local Court Act -- Impugned order of the Local Court based on breach of natural justice -- Order in nature of certiorari recalled and vacated
Local Court Act (NT) s35
JUDICIAL REVIEW -- NATURAL JUSTICE -- DECLARATORY RELIEF -- JURISDICTION
Consideration of standing of applicants to seek alternative declaratory relief -- Legal effect of order made in breach of natural justice -- Whether proposed declaratory relief available and appropriate in circumstances -- Appropriate form of declaration -- Declaration that impugned order did not accord natural justice -- Jurisdiction of Magistrate had constructively not been exercised
Followed
Ainsworth and Another v Criminal Justice Commission (1991-1992) 175 CLR 564
Craig v The State of South Australia (1994-1995) 184 CLR 163
Dixon v The Commonwealth (1981) 55 FLR 34
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Re Refugee Tribunal and Anor; ex parte AALA (2000) 204 CLR 82Applied
Police and The State of South Australia v Lymberopoulos and Others [2007] SASC 247
Ridge v Baldwin [1964] AC 40Considered
Calvin v Carr [1980] AC 574
Director of Public Prosecutions v Gursel Ozakca and Anor (2006) NSWSC 1425
Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 43 SASR 121 O’Brien v Northern Territory of Australia (2003) 12 NTLR 218
R v Chairman of General Sessions at Hamilton; ex parte Atterby [1959] VR 800Referred to
Craig v Workers Compensation Tribunal (2004) 90 SASR 490
Dimes v Grand Junction Canal (1852) 3 HLC 759
In re Racal Communications Ltd [1981] AC 374
Kuek v Wellens [2000] VSC 326
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
R v Sagacia and Others; ex parte Katelaris (1990) 99 FLR 439
Underhill v Murden (2007) NSWSC 761REPRESENTATION:
Counsel:
Appellants:W Piper
Plaintiffs:W Piper
Respondent/1st Defendant: W Priestley
Respondent/2nd Defendant: G Clift
Solicitors:
Appellants:Pipers
Plaintiffs:Pipers
Respondent/1st Defendant: Solicitor for the Northern Territory
Respondent/2nd Defendant: De Silva Hebron
Judgment category classification: A
Judgment ID Number: Ols200801
Number of pages: 14
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINWoodward & Anor v Loadman & Anor (No 2) [2008] NTSC 6
Nos. SC 45 of 2007 (20711094) & LA 6 of 2007 (20625162)
BETWEEN:
LUCINDA WOODWARD
AND:
VICKI BRADDY
Appellants
AND:
DAVID LOADMAN
First Respondent
AND:
MINDIL BEACH SUNSET MARKETS ASSOCIATION INCORPORATED
Second Respondent
CORAM: OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 12 February 2008)
Introduction
On 9 November 2007 I published composite reasons for decision ("the reasons for decision") in relation to two separate matters that had been argued before me.
In matter LA 6 of 2007 Ms Lucinda Woodward and Ms Vicki Braddy ("the appellants") had sought to prosecute an appeal as of right against the second respondent Mindil Beach Sunset Markets Association Inc ("MBSMA") pursuant to s 19 of the Local Court Act. They asserted that a stipendiary magistrate had inappropriately made a summary order on 21 February 2007 that an originating application filed by them on 3 October 2006 be struck out with costs.
In matter SC 45 of 2007 the appellants had filed an originating motion in this Court on 20 April 2007 seeking relief by way of judicial review. They expressly sought an order in the nature of certiorari pursuant to Supreme Court Rule 56, quashing the striking out order to which I have referred.
In the reasons for decision, I pointed out that the core complaint of the appellants in both matters was essentially the same. They appeared before the magistrate as litigants in person. It is said that, whilst hearing a defendant's application to strike out the appellants' claim by way of originating application in the Local Court for want of proper particulars of claim, he had proceeded to make the impugned order. They complained that he had done so without first hearing from the appellants or affording them an adequate opportunity of being heard. He had declined to adjourn the proceedings to enable the appellants to seek legal assistance, saying that, on any view, the claim did not enliven any jurisdiction vested in the Local Court.
On the bases expressed by me in the reasons for decision, I dismissed the purported appeal on the footing that it was technically incompetent, having regard to the provisions of s 19(3) of the Local Court Act. I held that the impugned order was not a final order within the meaning of s 19(1) of the last mentioned statute, the purported appeal had not been instituted within the time prescribed by s 19(3) and there was no power to grant an extension of that time (Collins v Deflaw Proprietary Limited (2000) 157 FLR 121. See also Drover v Northern Territory of Australiaand Ebatarinja (2004) 14 NTLR 140 at 148).
However, I concluded that, in making the impugned order, the appellants had demonstrated serious departures on the part of the learned magistrate from the rules of natural justice. Inter alia, I said:
"[107] The learned magistrate effectively denied the appellants any opportunity to address him as to the course that he proposed to adopt, inappropriately ignored an application for an adjournment to seek legal advice and put their pleadings and particulars in order, failed to render them the assistance as self represented litigants that they were entitled to receive, had plainly prejudged the matter before either party had been given any opportunity to address him at all and then proceeded to deal with the substance of the matter without affording them any such opportunity.
[108] To compound those problems his pre-judgment was patently wrong, insofar as he failed to recognise the obvious enlivenment of at least some jurisdictional aspects arising under s 109 of the Associations Act."
I therefore acceded to the application for Judicial Review and pronounced a formal order quashing the striking out order and an associated order for costs and remitting the proceedings back to the Local Court for hearing before another magistrate.
At the time of the pronouncement of that order I was unaware of the existence and provisions of s 35 of the Local Court Act, which expressly stipulates that the Supreme Court is not to have jurisdiction to make orders in the nature of certiorari, mandamus, prohibition or quo warranto against the Local Court or an officer of that Court.
Indeed, it is common ground that neither counsel who had appeared before me were aware of the content of s 35, with the consequence that the matters had been argued before me on the footing that no such privative provision existed. It was only subsequent to the publication of the reasons for decision that their attention was apparently drawn to that provision by a third party.
At this stage my order has not been perfected by being drawn up, sealed and entered. Accordingly, the parties accept that the proper approach is to recall and vacate the order and receive further submissions as to what course ought to be adopted in the circumstances. I agree that this is the proper course to pursue. I therefore recall and vacate the order made on 9 November 2007 in matter SC 45 of 2007.
What follow are my reasons concerning the supplementary submissions that have been made on behalf of the parties.
The issues
Counsel for the appellants submits that, not only is it open to me to grant alternative relief by way of declaration, but also, it is appropriate to revisit the question of whether or not the impugned order was or was not properly to be categorised as a "final order", in view of what is said to be the unique mode of expression employed in s 19 of the Local Court Act.
As to the latter aspect, I am not persuaded that this is appropriate. My attention has not been drawn to any basis of reasoning that compels me to a conclusion that what I said in the reasons for decision as to the competence of the appeal is manifestly incorrect. It would therefore be inappropriate to also recall the order of dismissal of the appeal and permit the competency issue to be re-argued.
As to the former aspect the appellants have filed a summons in which they seek what I take to be orders both amending the originating motion in matter 45 of 2007 to seek alternative relief by way of declaration and also a formal declaration to the effect that the learned magistrate, in making the impugned order, had failed to accord the appellants natural justice and had exhibited actual bias. I take the reference to actual bias to refer to manifest pre-judgment.
Counsel for the MBSMA concedes that this Court possesses power to grant declaratory relief in proper cases, both pursuant to its inherent jurisdiction and/or s18 of the Supreme Court Act. That section specifically empowers the Court, in relation to any matter in which it has jurisdiction, to make binding declarations of right. However, it was initially argued on behalf of the MBSMA in its written submission that, as no damage to the reputation or standing of the appellants has been demonstrated, the discretion of the Court to make an appropriate declaration ought not to be exercised.
In the course of my judgment in Plenty v Seventh-Day Adventist Church of PortPirie (1986) 43 SASR 121, I referred to various authorities bearing on the circumstances in which the discretion to grant declaratory relief might properly be exercised. I adhere to what I there said.Inter alia, I noted that Starke J, in the course of his judgment in Cameron v Hogan (1934) 51 CLR 358, accepted that a relevant consideration was whether a claimant had suffered some practical injury, either to reputation or to his property.
An interesting illustration of the exercise of the declaratory jurisdiction is to be found in the judgment of the Full Court in O'Brien v Northern Territory of Australia (2003) 12 NTLR 218, where a declaration was made to the effect that a stipendiary magistrate, in directing and causing the plaintiff to be taken into custody absent the proper institution of contempt proceedings, had acted without jurisdiction and/or without power. The Court unhesitatingly made that declaration because of the inherent seriousness of the matter and also because of the impact of the conduct of the magistrate on the plaintiff's reputation.
The case of Ainsworth and Another v Criminal Justice Commission (1991-1992) 175 CLR 564 is also instructive. A report prepared by the Commission made adverse recommendations concerning certain persons involved in the poker machine industry without any notice having been given to the persons concerned. The High Court accepted that such conduct breached the rules of procedural fairness. It held that, although prerogative relief was not available, the persons adversely reported on had a real interest in obtaining a declaration that there had been a failure to observe procedural fairness, because of the harm caused to their business or to their commercial reputation.
Ainsworth is an important authority for present purposes. To paraphrase and adapt the language of Brennan J (as he then was), where an official entity purportedly exercising a statutory function which requires it to observe the rules of natural justice breaches those rules causing damage to some person, prima facie, that person is entitled to a declaration that the action of the relevant entity has occurred in breach of its duty to observe the rules of natural justice. As the judges in that case pointed out (p 581-582), the superior Courts have inherent power to grant declaratory relief, which will be exercised provided that the person seeking it has a real interest and the declaration will have some practical consequence. (See also the discussion of the relevant principles by Gillard J in Kuek v Wellens [2000] VSC 326).
Conclusion
In the instant case the issues raised by the appellants go direct to conduct on the part of the learned magistrate which had the practical effect of negating their ability, in the relevant proceedings, to seek to secure statutory remedies that were plainly open to them if they could establish the evidentiary basis to justify those remedies.
The proceedings focused on what was asserted to be, in effect, a wrongful denial by the MBSMA of the appellants' ability and right to conduct commercial activities at the Mindil Beach Sunset Markets. In my opinion, the subject matter and nature of the appellants' claim to relief and the serious nature of the denial of procedural fairness well justify the exercise of a discretion to grant appropriate declaratory relief. The only question that remains is the form in which any declaratory order ought to be expressed.
Where, in the making of a decision by a tribunal other than a court, there has been a clear breach of the rules of natural justice by reason of procedural unfairness and pre-judgment, the practical and legal effect is normally that there has been failure to comply with a condition of the exercise of the decision-making power and thus jurisdictional error (see per Gleeson CJ in PlaintiffS157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 490), or, to employ the expression used by Gaudron and Gummow JJ in Re Refugee Tribunal and Another; ex parte AALA (2000) 204 CLR 82 at 87-99, “excess of jurisdiction”. In Dixon v The Commonwealth (1981) 55 FLR 34 at 45, 48 the Full Bench of the Federal Court simply described the relevant impugned decision as being “invalid and ineffectual”.
Such a jurisdictional error necessarily vitiates the impugned decision, because the order has not been made in the proper exercise of the relevant jurisdiction. Where the remedy of certiorari is technically available, the purpose of the remedy is essentially to expunge from the record a decision or order that is patently invalid and of no effect, by reason of jurisdictional error.
In the course of his speech in the well-known case of Ridge v Baldwin [1964] AC 40 at 80, Lord Reid commented:
"… there was considerable argument whether in the result the watch committee's decision is void or merely voidable. Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void, and that was expressly decided in Wood v Woad L.R. 9 Ex 190. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded the person affected a proper opportunity to state his case."
I do not take that reasoning to be inconsistent with what was said in the joint judgment of the High Court in Craig v The State of South Australia (1994-1995) 184 CLR 163 at 176 et seq.
In Craig, the High Court was, however, at pains to draw a distinction between the situation of administrative tribunals on the one hand and courts of law on the other (p 179). As to the latter it was said in the joint judgment:
"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error".
(see also what fell from Lord Diplock in In re Racal Communications Ltd [1981] AC 374 at 382-384).
In so commenting the High Court was, of course, directing its attention to possible errors made within jurisdiction, by way of contrast with factors which, by reason of their fundamental nature, go to the issue of whether a conferred jurisdiction has properly been exercised at all.
In the recent case of Police and The State of South Australia v Lymberopoulos and Others [2007] SASC 247 (applying reasoning similar to that expressed in an earlier case of Craig v Workers Compensation Tribunal (2004) 90 SASR 490), Doyle CJ pointed out that, in Craig v The State of South Australia (supra), the High Court had not categorised the effect of a breach by a court of the rules of natural justice as a form of jurisdictional error, but, rather, had indicated that it constituted what he termed "a freestanding ground in its own right", attracting relief of a prerogative nature.
He commented that, in the circumstances then under consideration, the requirement to accord procedural fairness could best be categorised as a restriction on the exercise of the power conferred, within jurisdiction, on the Magistrates Court. He was of the view that, although the requirement is not a condition of jurisdiction, it is analogous to those "imperative duties" and "inviolable limitations", the contravention of which results in jurisdictional error by a statutory decision-maker.
He noted that, in R v Chairman of General Sessions at Hamilton; ex parte Atterby [1959] VR 800, the court had granted prerogative relief notwithstanding a privative provision in the Victorian Justices Act on the basis that the relevant denial of natural justice was "analogous to a defect of jurisdiction".
In Lymberopoulos, Bleby J, whilst generally agreeing with the reasoning of Doyle CJ, made a comment that is particularly apposite to the instant case. He said:
"Denial of procedural fairness, apprehended bias and fraud all strike at the integrity of the judicial process. They do not challenge the integrity of the decision. The decision may well be the same even if the defect in process is cured. Challenge to a decision on those grounds, even though not amounting to a challenge on jurisdictional grounds, goes to the validity of the decision. It is not a form of merit review. It is that type of injustice, where there is no right of appeal, that judicial review is designed to protect."
In Calvin v Carr [1980] AC 574 at 589-590, their Lordships accepted that a decision of a tribunal reached in breach of natural justice is void rather than voidable, given that, until declared to be void by competent court, such a decision could not be considered as legally non-existent. Logically, the same concept is no less applicable to the decision of an inferior court similarly reached.
To employ the language of their Lordships, the decision is invalid or vitiated by the breaching conduct. (see also discussion in R v Sagacia and Others; ex parte Katelaris (1990) 99 FLR 439 at 449-451, Dixon v The Commonwealth (supra) and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 627-633).
This is because there has been an invalid exercise of power, albeit within jurisdiction. It is irretrievably flawed by reason of the procedural unfairness involved and liable to be reviewed by this court. (cf Director of Public Prosecutions v Gursel Ozakca and Anor (2006) NSWSC 1425). I respectfully agree with the view expressed by Rothman J in that case that the end result is that a breach of natural justice, so declared, gives rise to what might properly be described as "a constructive failure to exercise the jurisdiction … conferred".
There is a body of opinion that breach of natural justice by a Court renders a decision of even a superior Court "voidable" at the option of the aggrieved litigant (Dimes v Grand Junction Canal (1852) 3 HLC 759) and is liable to be avoided by appropriate decree. I note that text writers seem to have expressed differing opinions as to the status of decisions of Magistrates Courts (see Jackson, Natural Justice, 2nd Ed at 192 and note 20 there referred to).
I consider that the situation is accurately expressed by the learned author of Hotop, Principles of Australian Administrative Law, 6th Edn at p216 where he discusses the dicta in Calvin v Carr (supra) in these terms:
"This is an eminently sensible approach both from a legal and practical point of view. A decision made an alleged breach of natural justice will not be able to be ignored but will remain effective unless a court is prepared to grant the remedy declaring void or setting aside -- in which event will be rendered a nullity and devoid of legal effect ab initio."
I agree with Mr Piper of counsel for the appellants that the effect of a declaration as to invalidity would be to leave the Local Court proceedings on foot on the basis that, on the grant of appropriate declaratory relief, the result is that no effective striking out order has ever been made, because, to adopt the language embraced by Rothman J in Director of Public Prosecutions v Gursel Ozakca and Anor (supra), those proceedings remain undetermined by reason of the fact that the relevant jurisdiction has been left "constructively unexercised" in law. (See also Underhill v Murden (2007) NSWSC 761).
In the circumstances I propose to make the following orders:
(1)That the originating motion in matter SC 45 of 2007 be amended so as to claim, in the alternative, declaratory relief of the nature specified in the summons filed in those proceedings on 12 December 2007.
(2)That this Court declares that, having regard to the attendant circumstances, the making by the first defendant on 21 February 2007 in Matter 20625162 in the Local Court at Darwin of an order striking out the originating application in that matter and the associated order for costs did not accord the plaintiffs in that matter natural justice. Accordingly, it further declares that the jurisdiction of the learned magistrate has constructively not been exercised as to that order.
I will hear the parties as to the question of the further costs of these proceedings.
_________________________________
0
10
1