Administrative law - Application for a review order of magistrate's decision - Appeal instituted and heard against magistrate's decision - Substantial overlap between appeal grounds and grounds for review order - Reasons delivered dismissing appeal against decision of magistrate - Whether applicant should pursue any appeal against decision in appeal rather than review order

Magistrates Court Act 2004 (WA), s 36

Application for review order adjourned pending any appeal against decision dismissing appeal

Kirk v Industrial Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531

Rayney v AW [2009] WASCA 203

Re an Application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151

Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Re Michelides; Ex parte Chin [2008] WASC 256

Saldanha v Fujitsu Australia Ltd [2010] WADC 43

1 On 14 April 2010 Ms Marina Saldanha filed an originating motion. The motion had two attachments. The motion itself did not identify the order sought. Attachment 1 is headed 'Grounds For Review Order'. It is clear from this attachment that the applicant seeks a review order under s 36 of the Magistrates Court Act 2004 (WA) against the decision of her Honour, Magistrate Boon SM, on 26 October 2009. The substance of her Honour's decision was to strike out a claim made by Ms Saldanha against the respondent, and to order the Ms Saldanha pay the respondent's costs.

2 This application was made ex parte, in accordance with O 56A r 2 of the Rules of the Supreme Court 1971 (WA)

3 At this hearing, being the first return of this application, Ms Saldanha informed me that she had appealed against the magistrate's decision and that the District Court had delivered reasons for decision dismissing the appeal. This gives rise to issues about:

(1) the relationship between the appeal and this application for a review order; and

(2) whether this application should be adjourned pending any appeal by Ms Saldanha against the decision in the District Court appeal.

4 The background to the decision of Magistrate Boon is conveniently summarised by Wager DCJ in the District Court appeal: Saldanha v Fujitsu Australia Ltd [2010] WADC 43 [1] - [11].

Ms Saldanha commenced a minor case claim against her former employer Fujitsu Australia Ltd (Fujitsu) for unpaid salary ($770), an outstanding incentive payment ($730) and for compensation for being forced to work 40 hours per week instead of the contracted 37.5 hours per week between April 2001 and June 2003 ($8,400). The total claim for $9,900 was filed on 29 June 2009.

Fujitsu filed an application to strike out Ms Saldanha's claim supported by a detailed affidavit setting out the history of earlier proceedings and correspondence between Ms Saldanha and Fujitsu.

The history as set out in the affidavit is that Ms Saldanha had proceeded against Fujitsu in the Western Australian Industrial Relations Commission for compensation for working a 40-hour week when she had been paid for a 37.5-hour week over a period spanning 2001 to 2008. The Full Bench of the Industrial Appeal Court determined that the Industrial Relations Commission did not have jurisdiction to deal with Ms Saldanha's application. Following the Industrial Appeal Court's decision Ms Saldanha stated in open correspondence to Fujitsu's solicitors dated 15 April 2009:

'Re the matter regarding my claim for working in excess of 37.5 hours per week, I think it is best dealt with in the Magistrates Court. Thank you for informing me that I'm likely to have an order for costs made against me in favour of Fujitsu. However I wonder how that is possible given that I told you that I'm going to split my claims so that they are under $10,000 each, thus eliminating the need for lawyers.'

Correspondence from Fujitsu's solicitors to Ms Saldanha in reply dated 5 May 2009 raised that a splitting of the claim into two or more actions to fit within the minor case jurisdiction limit would be an abuse of process. The correspondence also referred to the incentive claim and salary claim.

By letter dated 15 June 2009 Fujitsu's solicitors referred to their previous correspondence when Ms Saldanha had been put on notice that Fujitsu would object to the action being commenced by being split. Fujitsu also sought written advice from Ms Saldanha of any intention to commence any additional action and the basis for any claim over and above the minor case claim she had filed. Fujitsu's application also raised the claim that Ms Saldanha's claim was statute-barred. Fujitsu applied to have legal representation for the hearing of the application.

Fujitsu's application to strike out Ms Saldanha's claim came before Magistrate Boon on 14 September 2009 when Magistrate Boon adjourned the determination of the application so that Ms Saldanha could obtain legal advice. Her Honour advised Ms Saldanha on 14 September 2009 that if she received legal advice that her claim was statute-barred then Ms Saldanha could communicate with Fujitsu to attempt to amend the dates pleaded in her claim. Her Honour told Ms Saldanha that if Fujitsu did not agree to an amendment of the dates then Ms Saldanha could file an application to amend the dates of her claim.

An ex parte application to amend the third part of her claim relating to compensation so that the majority of the dates were not statute-barred was subsequently filed by Ms Saldanha.

A further application was later filed by Ms Saldanha seeking to have Fujitsu's application in relation to her claim struck out on the basis that Fujitsu had failed to lodge its response to her claim within the stipulated period outlined in s 9(1) Magistrates Court (Civil Proceedings) Rules 2005.

On 26 October 2009 her Honour Magistrate Boon struck the whole of Ms Saldanha's claim out for two reasons, firstly because the dates of the third part of the claim for compensation were statute-barred being dates relating to a period of more than six years before the action was commenced (s 38 Limitation Act) and, secondly, because Ms Saldanha had placed nothing before the Magistrate to negate Fujitsu's application that Ms Saldanha had a clear intention of splitting her claim because her actual claim was for a larger amount than the jurisdictional limit of $10,000. Her Honour Magistrate Boon also dismissed Ms Saldanha's application to amend the claim. Ms Saldanha was advised by her Honour Magistrate Boon that another claim would have to be filed if Ms Saldanha chose to proceed with a claim in relation to non-payment of compensation for a time period other than that originally pleaded in her claim.

Her Honour Magistrate Boon ordered that Ms Saldanha pay Fujitsu's costs pursuant to s 31(3)(a) and s 31(3)(b) Magistrates Court (Civil Proceedings) Act 2004 (the Act) because her Honour determined that the claim was an exceptional case because it was an abuse of process without merit and it was statute-barred.

Her Honour did not deal specifically with Ms Saldanha's application to strike out Fujitsu's application because Fujitsu had failed to lodge its response to the claim within the stipulated period. This application was listed to be heard on 2 November 2009 but fell away in light of the claim being struck out.

5 As mentioned by Wager DCJ, Ms Saldanha's claim in the Magistrates Court was a 'minor case claim'. Part 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) creates a special procedural regime for minor case claims. That regime includes the Magistrates Court (Minor Cases Procedure) Rules 2005 (the Minor Cases Procedure Rules).

6 Attachment 1, the Grounds For Review Order, comprises 12 pages containing 44 numbered paragraphs. The document is broken into six sections. Section 1 is concerned with and headed 'Errors Of Law And Denial Of Natural Justice'. Section 2 relates to costs. Sections 3 and 4 appear to relate to matters of background, which provide overviews of the claims made in the Magistrates Court proceedings. Section 5 is concerned with the orders sought. Section 6 sets out other concerns of the applicant.

7 I do not propose a detailed summary of what is set out in the Grounds For Review Order. The following is a very broad overview.

8 Section 1 of the Grounds For Review Order details a broad chronological procedural history of events in the Magistrates Court proceeding. Ms Saldanha makes a number of complaints about procedural aspects including, in some cases, conduct of the registry of the court. Some aspects are outlined as follows.

9 In September 2009 the respondent filed and served an application for leave to be represented by a lawyer and to strike out the claim on grounds that it was either an abuse of process, or time barred.

10 On 14 September 2009 the magistrate permitted the respondent to be represented by a lawyer.

11 Ms Saldanha attempted to file a further document, being an application to strike out the respondent's application. Initially, the registry would not accept the document for filing. When it was filed on 14 October 2009 the registry did not list the application for 26 October 2009, the date for hearing of the respondent's application, but instead listed it for 2 November 2009. Ms Saldanha complains about this, but it seems to me that nothing turns on this.

12 On 26 October 2009 the magistrate struck out Ms Saldanha's claim as an abuse of process. In par 20 of the Grounds For Review Order, Ms Saldanha claims that the magistrate had no power to do that under the Act or the Rules and complains that there was a breach of natural justice.

13 In par 24 of the Grounds For Review Order, Ms Saldanha summarises her position as being denied natural justice. One element set out in support of that is said to be that the magistrate has no power under the Act to strike out a claim that is a minor case (par 24(6)).

14 I would mention here that this last point, also made in par 20, appears to be without substance. Ms Saldanha points to the special procedural regime for minor cases created by part 4 of the Magistrates Court (Civil Proceedings) Act and to s 28(1) of that Act. Section 28(1) provides that the court must deal with a minor case in accordance with the procedure in Part 4 and in the Minor Cases Procedure Rules. Ms Saldanha says that the power to strike out s 17 of the Magistrates Court (Civil Proceedings) Act does not apply to minor case claims. That overlooks r 6A of the Minor Cases Procedure Rules. Rule 6A makes s 17 applicable to minor case claims.

Review under s 36 of the Magistrates Court Act 2004 (WA)

15 Section 36 of the Magistrates Court Act provides as follows:

(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.

(2) The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.

(3) On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.

(4) If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -

(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;

(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;

(c) make any necessary consequential orders.

(5) On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -

(a) if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;

(b) if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.

(6) When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4).

(7) If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may -

(a) remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or

(b) adjourn the appeal to enable an application to be made to the Supreme Court -

(i) under subsection (1); or

(ii) under the District Court of Western Australia Act 1969 section 76.

(8) A Court officer, on being served with an order made under subsection (4), must obey the order.

16 The scheme and purpose of s 36 was explained by McLure JA (Buss and Newnes JJA agreeing) in Rayney v AW [2009] WASCA 203 [25] - [28]:

Judicial review is a supervisory function that is distinct from an appeal or other review on the merits. Judicial review concerns itself solely with the legality of decisions. The focus is on jurisdictional errors. At common law, the scope of judicial review is determined by the availability of the prerogative writs, which include mandamus, prohibition and certiorari. For all intents and purposes, the right and remedy are indistinguishable at common law.

The scope of judicial review varies according to the nature and power of the decision-maker. The common law grounds of judicial review applicable to courts and analogous tribunals are significantly narrower than the grounds of review of decisions of administrative tribunals: Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 - 179; Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181].

There can be no doubt that the power in s 36 of the Magistrates Court Act is a judicial review power. The purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the Court. The intention is to permit judicial review in those situations in which the specified prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies. That purpose is evident in the language and context of s 35 and s 36. Section 35 takes away the Supreme Court's power to issue a prerogative writ in the form of a writ of mandamus, prohibition or certiorari and substitutes the remedies in s 36(4). A review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted.

The language and purpose of s 36 in its broader statutory context compels the conclusion that the power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.

17 For present purposes, it is not necessary to give detailed consideration to what was said by the High Court about jurisdictional error in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71] - [73].

18 When an inferior court makes an order or does an act that is subject to a right of appeal, an aggrieved party may have a choice between invoking a right of appeal or seeking judicial review. Section 36(5)(b) and s 36(7) recognise the relationship between an appeal against a magistrate's decision and a review order. Section 36(5)(b) allows the Supreme Court to order that the application be treated as if it were an appeal, where an appeal lies. Section 36(7) allows the District Court to remit an appeal to the Supreme Court if it considers that a review order ought to be made. Thus, whichever alternative is chosen by the aggrieved party, the court can determine that the other approach is more appropriate and remit or adjourn the case accordingly.

19 Apart from statute, the general law respecting judicial review has started from a presumption that any right of appeal should be pursued in preference to seeking judicial review. See, for example, Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501. In the context of the Magistrates Court Act, the position must be considered as a matter of construction of the statute. It is not necessary to determine whether s 36 should be construed in a manner consistent with the general law (as to which, see by analogy Re an Application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151 [57] - [61]). That is because in this case the applicant has invoked her right of appeal to the District Court.

20 The applicant appealed against the orders of the magistrate. The appeal was heard in February 2010 and reasons for decision were published on 31 March 2010: Saldanha v Fujitsu Australia Ltd [2010] WADC 43. The learned judge concluded that the appeal should be dismissed.

21 It is apparent that the document filed by Ms Saldanha, taken by the learned judge to be the grounds of appeal, is substantially identical in content to the document that is attachment 1 'Grounds For Review Order' to the originating motion that is before me. During the present hearing Ms Saldanha confirmed that there was substantial overlap between the two documents. I also infer that that is so given what her Honour says about the contents of the document. See her Honour's reasons [18], [41] - [64].

22 Because the case was a minor case claim, the general right of appeal in s 40 of the Magistrates Court (Civil Proceedings) Act did not apply. A right of appeal existed under s 32(2)(a) of that Act. As the learned judge stated, the possible grounds for an appeal against a minor case claim are set out in s 32(3). An appeal can only be made on the grounds:

(i) was not within the jurisdiction of the Court; or

(ii) was not a minor case;

(b) that in dealing with the minor case there was a denial of natural justice; or

(c) that the judgment was beyond the Court's jurisdiction.

23 The learned judge stated that Ms Saldanha agreed in part that the appeal was limited to the grounds that there was a denial of natural justice, and that the issues relating to the fairness to the parties and the right to present the case were the relevant matters for consideration in the appeal. Her Honour stated that there is no statutory provision for errors of fact or law to be considered on appeal. See her Honour's reasons [19].

24 In submissions before me, Ms Saldanha emphasised that statement. However, it must be borne in mind that s 36(1) of the Magistrates Court Act does not provide for a review order on a ground of error of fact or law, but rather on the grounds set out in that section.

25 Her Honour's reasons dealt in detail with questions about whether, in various respects, there was a denial of procedural fairness. In each case her Honour concluded that there had been no denial of procedural fairness to Ms Saldanha.

26 Her Honour also dealt with the question of whether it was open to the magistrate to determine that Ms Saldanha's actions had constituted an abuse of the court's process. See her Honour's reasons [34] - [39]. Her Honour concluded that various findings made by the magistrate were open to her and that, given the magistrate's findings of fact, it was open to her Honour to strike out the claim pursuant to s 17(1)(d) of the Magistrates Court (Civil Proceedings) Act.

27 At the hearing before me, Ms Saldanha was unaware of whether the District Court had made an order dismissing the appeal. It emerged that representatives of the respondent were present, in an observing capacity, at the hearing before me. A representative of the respondent informed me that an order dismissing the appeal had been pronounced on 31 March 2010, but that the order had not yet been extracted. Further, she informed me that the question of costs and another topic had not yet been determined, but were listed to be determined on a date in June 2010. The additional topic related to orders relating to paragraphs of an affidavit of Ms Saldanha that her Honour found should be excised from the court's file. See her Honour's reasons [22].

28 I am content to proceed on the basis of that information.

29 On 9 April 2010 Ms Saldanha filed a document in the District Court entitled 'Appellant's Affidavit In Support Of Submissions/Application (Regarding Judgment Delivered By Her Honour Wager DCJ on 31 March 2010)'. That document is some 19 pages. The document requests that the District Court reconsider its decision of 31 March 2010, before the judgment is formally entered. That invitation is based on what are said to be the very substantial number of respects in which Ms Saldanha says that the judge erred. Alternatively, Ms Saldanha requests in this document that the proceedings be remitted to the Supreme Court under s 36(7)(a) of the Magistrates Court Act for a review order, or be adjourned under s 36(7)(b).

30 Ms Saldanha informed me that there has been no response to her document filed on 9 April 2010.

31 Subsequent to the hearing, a copy of the extracted order of the District Court dismissing the appeal was delivered to my Associate.

32 At the hearing before me, Ms Saldanha invited me to consider the document she filed in the District Court on 9 April 2010 as it would set out the arguments that she wished to advance on this application.

33 It is apparent from the 9 April document that Ms Saldanha contends that the learned judge in the District Court erred in a number of respects in dismissing the appeal. In my opinion, the starting point should be that if the applicant wishes to reargue matters that were argued before the District Court and decided adversely to her, that should occur by way of an appeal against the District Court judgment, not by review proceedings under s 36 of the Magistrates Court Act.

34 I accept that there is not a perfect identity between the available grounds of appeal under s 32(3) of the Magistrates Court (Civil Proceedings) Act and the grounds for review under s 36(1)(c) of the Magistrates Court Act. Nevertheless, in this case, when regard is had to what is said in the Grounds For Review Order, the overlap is very substantial indeed. The District Court has heard argument on many of the grounds sought to be agitated in this application for a review order.

35 If Ms Saldanha contends that the District Court erred in relation to those matters then, it seems to me, she should appeal against the decision of the District Court, rather than attempt to run the same arguments in this application for review. As a general rule at least, I do not think the legislature intended, in enacting s 36 of the Magistrates Court Act, for an application for a review order to be an opportunity to reagitate arguments that have been unsuccessfully put in an appeal against the order sought to be reviewed. Consequently, if there is no appeal against the District Court decision, that decision will stand as a very formidable obstacle to those of Ms Saldanha's contentions in this application which echo arguments in the District Court appeal.

36 At the first return of this application I invited Ms Saldanha to put submissions as to why the application should not be adjourned pending any possible appeal by her against the decision of the District Court in the appeal. She raised several points. I will deal with them in turn.

37 Ms Saldanha pointed out that the order dismissing the appeal was pronounced on 31 March 2010, which was more than 21 days ago. That meant that it was too late for her to institute an appeal. While I accept that an extension of time would be required, the circumstance that this application was commenced on 14 April 2010, less than 21 days after judgment was pronounced in the District Court, would seem to me to be a circumstance that would weigh heavily in favour of the grant of an extension of time. Moreover, if an extension of time was sought and refused, this application for a review order could be brought back on.

38 Ms Saldanha emphasised that she had sought, in her document filed 9 April 2010, that the District Court remit the District Court appeal to the Supreme Court, or adjourn the appeal to enable this application to be commenced and pursued. Because of that, she submitted, it would not be appropriate to adjourn this application in order for her to pursue any appeal against the decision in the District Court. I do not accept that submission. In circumstances where the District Court has published reasons for decision and made an order dismissing the appeal, I think it would be most unlikely that the District Court would exercise a power under s 36(7) of the Magistrates Court Act to remit or adjourn the case. I accept that the power exists, in that the proceedings have not been finally disposed of. Nevertheless, the District Court has determined the merits of the appeal. Having done so, there would seem to be no occasion to adjourn or remit the appeal.

39 Ms Saldanha also made some submissions with reference to costs in support of her application for a review order. She stated that an appeal against the District Court decision would be too expensive. She referred to claims made against her for the costs of the District Court appeal. It is evident that the expense she refers to lies in her possible liability for the costs of the respondent if she is unsuccessful. She does not herself incur costs, being self-represented.

40 I do not accept that this consideration weighs significantly against an adjournment of the kind I have referred to. While the application for a review order under s 36(1) of the Magistrate Courts Act can be heard ex parte, at the hearing required by a review order under s 36(4) both parties will, of course, be involved. I am not persuaded that a hearing under s 36(4) is likely to expose the applicant to significantly less costs than an appeal.

41 Further, Ms Saldanha submitted that she would like to have the 'benefit' of a review order, revealing that there was an arguable case, before exposing herself to potential costs in the event of being unsuccessful. This does not seem to me to be a consideration of any significant weight.

42 Finally, Ms Saldanha relied on the decision in Re Michelides; Ex parte Chin [2008] WASC 256. In that case, Hasluck J granted a review order directed to two decision of different magistrates, notwithstanding that one of those decisions had been the subject of an unsuccessful appeal to the District Court. That was a discretionary decision based on all the circumstances of the application before his Honour in that case. However, in the circumstances of this case as I have outlined them, I consider the appropriate course to be that this application for a review order be adjourned pending any appeal from the District Court judgment.

43 For these reasons, I consider that the present application should be adjourned pending any appeal against the decision of the District Court.