Prerogative writs - Certiorari - Award by Painters' Registration Board of estimated cost of remedying deficient painting - Appeal to Local Court from decision of Board seeking an increase in the award - Increase in award granted by Magistrate - Painter not a party to the appeal - Order absolute for writ of certiorari granted

Painters' Registration Act 1961, s 16D, s 18(1)(b)

Painters' Registration Board Rules 1962, r 11

Order nisi for writ of certiorari made absolute

Allison v Builders' Registration Board of WA, unreported; Local Ct of WA (D W J Brown SM); Plaint No 2475/88; 22 March 1989

Archer v Howell (No 2) (1992) 10 WAR 33

Attorney-General of Gambia v N'Jie [1961] AC 617

Coles-Myer Ltd v O'Brien (1992) 28 NSWLR 525

Gibson v Brooking [1983] WAR 70

Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158

I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Ex parte Official Receiver; In Re Reed Bowen & Co [(1887] 19 QBD 174

R v Ministry of Health; Ex parte Ellis [1968] 1 QB 84

Ex parte Savage and Savage [1989] WAR 46

Savage v Teck Explorations Ltd, unreported; FCt SCt of WA; Library No 7285; 16 September 1988

Sevenoaks Urban District Council v Twynam [1929] 2 KB 440

Shaw v McLeod, unreported; SCt of WA (Pidgeon J); Library No 4707; 8 November 1982

Ex parte Sidebotham; In re Sidebotham (1880) 14 Ch D 458

Re Smith; Ex Parte Rundle (1991) 5 WAR 295

State of Western Australia v Bropho (1991) 5 WAR 75

1 KENNEDY ACJ: I have had the advantage of reading in draft the reasons to be published by Anderson J, with which I am entirely in agreement.

2 WALLWORK J: I agree with the reasons for judgment of Anderson J. There is nothing I wish to add to those reasons.

3 ANDERSON J : This is an application for a writ of certiorari to quash an order made by a Stipendiary Magistrate sitting as a Local Court at Perth. The order was made under s 18 of the Painters' Registration Act and required the applicant, Mr Harding, to pay $15,883.06 to one Susan Lenander.

4 At the conclusion of argument, the Court was unanimously of the opinion that the order nisi should be made absolute and so ordered, indicating that reasons would be published in due course. These are my reasons for joining in that decision.

5 The matter started as a complaint to the Painters' Registration Board under s 16D of the Painters' Registration Act 1961. That section is in the following terms:

"16D. Order to remedy unsatisfactory painting work

(1) Where the Board is satisfied that any painting has not been carried out in a proper and workmanlike manner on any building or other structure the Board may, by order in writing served on the person who carried out the painting, order him to --

(a) ...

(b) pay to the owner of the building or other structure such costs of remedying the painting as the Board considers reasonable ... "

6 The dispute was between Mr Harding, the painter, and Ms Lenander, the owner of 10 Walbeck Road, Kalamunda at which Mr Harding had carried out painting work. The Board investigated the complaint and determined that the painter should pay $890 to the owner.

7 Ms Lenander was dissatisfied with this determination and decided to take it further by exercising the right of appeal conferred by s 18 of the Act. That section is in the following terms:

(a) a decision of the Board refusing, cancelling or suspending his registration, or refusing to re-register him or to annul the suspension of his registration; or

(b) an order of the Board under section 16D ...

may appeal therefrom to a stipendiary magistrate of the local Court nearest to the place where he resides, by causing notice of appeal in the prescribed form to be lodged with the clerk of that Court and served on the Registrar within 28 days after he is notified of the decision or order.

(2) The appeal shall be by way of rehearing, and for that purpose the magistrate may take evidence on oath or affirmation in the same manner and to the same extent as he is empowered to do in the exercise of his ordinary jurisdiction.

(3) The magistrate may confirm, reverse or modify the decision or order appealed from and make such order as to the costs of the appeal as he thinks fit; and any amount payable by one person to another by virtue of the magistrate's order is recoverable as a debt in any court of competent jurisdiction."

8 Ms Lenander instituted her appeal by filling out the prescribed form, ie, a form prescribed by r 11 of the Painters' Registration Board Rules 1962. It was Form 8. That form is titled up as in an action in the Local Court of Western Australia between a person to be named as appellant and the Painters' Registration Board as respondent. In the completed form Ms Lenander was named as appellant and in accordance with the printed part of the form the Painters' Registration Board was named as respondent. This notice notified Ms Lenander's intention to:

" ... move before a Stipendiary Magistrate of the Local Court on a date to be fixed for orders that:

1. The order of the Painters' Registration Board made on 9th March 1998 whereby the Board: requiring

Mr P B Harding to pay Ms Susan Lenander the sum of $890 to remedy faulty painting be modified by the actual amount quoted by two other painters to remedy the painting $2,840 plus $400 remove & refit curtains, & $500 to refit blinds.

2. Cost for removing & reinstalling curtains, pelmets, canvas blinds & venetian blinds, plus accommodation cost for vacating the residents for one week estimated $1,000 + costs."

9 The notice was dated 3 April 1998 and signed by Ms Lenander.

10 The fundamental defect in this form of notice is that there is no provision for the painter to be a party. In fact, he never became a party, although it was against him that the modified monetary order was sought. The appeal went to hearing as an appeal between Ms Lenander and the Painters' Registration Board.

11 Apparently, the Board notified Mr Harding of the appeal and indicated to him that the Board wished to call him as a witness and obtained a proof of evidence from him. As things stood, however, he could not have been present at the hearing because an order had been made for witnesses to be out of court.

12 The appeal was heard over a number of days in October 1998 and in March, July and September of 1999. Towards the end of the hearing, counsel appearing for the Board had second thoughts about the propriety of the Board being respondent and the non-joinder of Mr Harding as a party. Advice was obtained from senior counsel, in consequence of which the Board sought leave to withdraw as a party. The learned Magistrate refused that application. Undeterred, the Board withdrew its instructions to its counsel who then, I gather, withdrew from the hearing. In due course the learned Magistrate handed down her decision and made the order now sought to be quashed. As I have said, Mr Harding was ordered to pay to Ms Lenander $15,883.06.

13 There can be no doubt that this decision must be set aside. In the absence of clear statutory provision, no court has the authority to make a coercive order for the payment of money against a person who is not a party to the proceedings before it. This is a fundamental rule which has been described a "axiomatic": In Re Wykeham Terrace [1971] 1 Ch 204 at 208. The rule has been applied at the highest levels. In Grovenor v Permanent Trustee Co of New South Wales Ltd & Anor (1966) 40 ALJR 329 there had been a testamentary bequest to charitable institutions and a question arose as to the validity of the bequests. The executor of the Will took out an originating summons to have the question determined. Because there was a question as to the validity of a bequest to a charitable institution, the Attorney-General should have been joined. On the matter reaching the High Court, the failure to join the Attorney-General (and certain other persons) was pointed out in argument. The High Court thereupon set aside the orders that had been made below and remitted the matter to the Supreme Court to enable the joinder of the necessary parties. In so doing, the Court said (at 330) that the well-established rules as to the joinder of necessary parties "ought always to be strictly observed".

14 In Delta Properties Pty Ltd v Brisbane City Council [1955] HCA 51; (1955) 95 CLR 11 at 18 the High Court held that the general rule that a person whose rights are in question in curial proceedings must be given a full and fair opportunity of placing before the court his case against the making of an order prejudicial to him is a condition of the efficacy of the order. See also The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395 - 396.

15 In Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1 at 14 the House of Lords held that provisions in the rules of court to the effect that no action will be defeated by reason of the misjoinder or non-joinder of any party did not mean that judgment could be obtained in the absence of a necessary party.

16 In this application, Ms Thatcher, who appeared as amicus curiae, sought to persuade us that the long-established doctrine referred to above is based upon natural justice considerations and the principles of natural justice are satisfied if the party who is at risk of prejudice has been given notice of the proceedings, has been advised that his rights may be affected and has been invited "to be legally represented". In my opinion, that is no answer to the basal proposition that no order binding upon any person can be made in curial proceedings in which that person is not a party. As Mr Zelestis QC, who appeared as senior counsel for the Painters' Registration Board, rightly conceded, the effect of the non-joinder of Mr Harding as a party simply prevented the court from making an order against him. If authority is required for the proposition that an order which directly affects a person's rights against or liabilities to a party should not be made unless the person is actually joined as a party, it may be found in News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 139 ALR 193 at 298.

17 One other observation should be made. In my opinion, the prescribed form of notice of appeal should not name the Painters' Registration Board as a party to an appeal from an order made under s 16D. In investigating complaints against registered painters and considering whether and what remedial orders should be made against a painter, the Board is acting as an arbitrator. The Board should not have any interest in the outcome of such proceedings at any stage of them. To treat the Board as the adversarial party in an appeal from one of its decisions ordering a painter to do work or pay money, is to bring about a situation where the Board must lose its impartiality. As the High Court pointed out in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35 - 36, it is only in exceptional cases that a tribunal whose decision is under review should be "a protagonist".

18 In my opinion, the Painters Registration Board Rules and the forms prescribed by those rules should recognise that in appeals pursuant to s 18(1)(b) of the Act, against orders made under s 16D, the Board is not the contradictor. The forms should provide for that position to be filled by the person against whom the remedy is sought: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at par 46.

19 I am, of course, referring to appeals under s 18(1)(b) against orders made under s 16D. Under s 18(1)(a), appeals also lie against decisions of the Board refusing, cancelling or suspending the registration of a painter and it is plainly appropriate for the Board to be the respondent to such appeals.

20 Finally, I wish to say that the way in which this matter is titled up should not serve as a precedent. It does not comply with O56 r 1. It is quite inappropriate that the tribunal whose decision is under review in certiorari proceedings should be named as a respondent as if in an appeal. Certiorari is not an appellate procedure, but an exercise of original jurisdiction.