11 The orders that can be made by a magistrate in the Small Claims Court are somewhat limited. Relevantly under the Act, s29, he may make:

"(3) ... such one or more of the following orders as may be appropriate:-

(a) an order that requires a party to the proceeding to pay a sum of money not exceeding the prescribed sum to a person specified in the order;

(b) an order that the claimant does not owe money to a person specified in the order;

(c) an order that requires a party to the proceeding (other than the claimant) to perform work to rectify a defect in goods, or a deficiency in services, to which a small claim in the proceeding relates;

(d) an order that dismisses the small claim to which the proceeding relates;

(e) an order that requires a party to the proceeding (other than the claimant) to replace any goods to which the small claim in the proceeding relates,

and such ancillary orders as may be necessary to give effect to the order or orders so made by the magistrate."

(a) any order or determination under the Residential Tenancy Act 1997 arising out of a small claim; and

(b) any other order the magistrate considers appropriate."

(4) An order under subsection (3)(a) may be made to take effect -

(a) immediately or within the time specified in the order;

(c) on default made in complying with some other order made by the magistrate.

(6) An order under subsection (3)(e) shall direct that what is required to be done by the order shall be done within the time specified in the order.

(8) Where an order is made under subsection (3)(a)for the payment of a sum of money, the order is deemed to be a judgment of the Magistrates Court (Civil Division) and is enforceable as provided by the Magistrates Court (Civil Division) Act 1992."

Section 30(1) provides:

"30 (1) On making an order under section 29, a magistrate may adjourn the proceeding to which the order relates to a fixed date or without fixing a date and in either case may give leave to the person in whose favour the order operates to renew the reference to the small claims division of the small claim in the proceeding if the order is not complied with. "

Although s29(3A)(b) is expressed in very wide terms permitting, on the face of it, the magistrate to make "any other order the magistrate considers appropriate", it must be borne in mind that this provision was enacted as a consequential amendment to the Act by the Residential Tenancy Act 1997, s68 and the Third Schedule thereto. That provides for the removal from the original definition of small claim in the Act, s3(2) of a reference to a claim arising out of a lease or tenancy agreement in respect of any premises leased or let to the lessee or tenant for residential purposes (a claim which, like all other small claims, originally was limited to an amount not exceeding the prescribed amount). It also provides for the insertion of an additional subs(3) to the following effect:

"(3) In respect of any matter arising out of the Residential Tenancy Act 1997, a 'small claim' means -

(a) a claim arising out of a residential tenancy agreement within the meaning of that Act; and

(b) an application for an order or determination under that Act."

Whether by design or accident, this definition did not limit such a claim to any particular amount. A further provision inserted subs(3A) above. In my view, the general power to make "any other order the magistrate considers appropriate" must be confined to the context of that subsection, ie, a small claim as defined in s3(3), namely one arising out of a residential tenancy agreement or an application for an order under the Residential Tenancy Act 1997. It is only in respect of such a claim that the magistrate could make any order other than any order or determination under the last mentioned Act arising out of a small claim as thus defined. It is not sufficient, in my view, to broaden indefinitely the powers of a magistrate set out in the rest of s29 in respect of a small claim as defined in s3(2).

12 The first order the learned magistrate made was:

"1 That the Respondent deliver to the Court Registry in good condition by Friday next the items on the Claimant's list (including 3 Beach towels and two white) except the single bed and bedding, the wood and the weight belt and the knife the ski biscuit and the photo of the 3 Claimants. He will deliver his new substitute anchor to Melissa in return for the one he borrowed."

As to this order, the magistrate did not have power to order the return of any goods in specie and the first part of the order is therefore defective. The second part of it seems to fall within s29(3)(e) requiring substitution or replacement of a specific item failure to comply with which direction will give the claimants the right to renew the reference under s30(1). However, although reserving leave to apply, the learned magistrate did not formally adjourn the proceedings and it may be that this part of the order is defective for that reason. Order 2 was:

"2 He shall deliver purple paint to the registry or $30."

This is technically defective because there is no power to order the return of goods in specie. The next order was (again numbered 1):

"1 There shall be liberty to apply any items on the list described in a general way and or substitute money orders."

The laudable intention was to enable identification and/or an assessment of the value of any goods not returned. Unfortunately the order is defective because it proceeds from the false premise that the court had power to order the return of the goods in specie. Order again numbered 2 was:

"2 He shall pursue the insurance claim for the weight belt knife, keep Melissa advised of the progress of the claim and pay her the proceeds of those items when received from the Insurer."

It seems that this item went missing from the family home. There is a suggestion that the prosecutor's wife stole it, presumably out of spite. Anyway, an insurance claim in respect of it appears to have been made, but not immediately accepted by the insurer because one of the insured (the wife) was suspected of being the thief. Again, the intention was laudable but the order beyond power. Order 3 was:

"3 The Respondent will provide an inventory in triplicate of each item returned for the convenience of the Registry in acknowledging receipt and having the Claimants do like wise."

There does not seem to be any power to make such an order. Order 4 was:

"4 The Respondent to pay the Claimants the sum of $420 (or $390 if purple paint provided) plus $28.05 filing fee within 14 days into Commonwealth Account 06 7103 10195217."

The order for payment was within power and a reduction by $30 if the paint was returned seems to me to be a reasonable ancillary order, but I can see no power to direct its payment into a particular bank account. Order 5 was:

"5 Liberty to apply re condition of items and returned or not returned."

I think this, too, is defective although again well intentioned. It proceeds on the premise that there is a valid order to return the goods in specie. Order 6 was:

"6 This order is enforceable in the Magistrates Court Civil Division at Hobart."

13 Due to the above technical defects in the orders which were intended to and had the potential (if within power) to resolve this unedifying family squabble swiftly and sensibly, the orders cannot stand and an order in lieu of certiorari to quash them must issue. However, it is appropriate that I exercise the power to grant such further relief as is just. In accordance, therefore, with Supreme Court Rules 2000, r627(2)(b), I will in addition, instead of ordering that a writ of mandamus issue, order that the learned magistrate perform such lawful duties as are necessary to make enforceable orders in accordance with his findings. On the return of the general order, Mr Lawrence Neasey appeared as counsel for the respondent who submitted to such orders as I might make and I granted Mr Neasey leave to withdraw. As both prosecutor and Interested Parties are unrepresented by counsel, I shall adjourn the further hearing of this matter but will invite Mr Neasey to appear again to make submissions as to the appropriate orders. In general terms, I have in mind orders requiring that the learned magistrate determine the value of such items as have not been returned, order the payment without reference to any particular account of the sums assessed as damages for conversion (which should be corrected by the deduction of $10 as there appears to be an arithmetical error), make findings about the fate of the weight belt knife, ie whether it was converted or detained by the prosecutor, and if so, assess its value and generally make consequential orders requiring the prosecutor to pay to the Interested Parties the amounts assessed as damages due to each of them.

14 If common sense prevails, the prosecutor can save all that trouble by handing over the goods in dispute still in his possession and agreeing and paying the value of what is missing.