MALEY v HUTCHINS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and MEAGHER JJA 1 March 1993, 8 April 1993 [1993] NSWCA 170 DISTRICT COURT — prerogative type relief — whether error amenable to correction — Justices Act 1902, s146 — whether error made within jurisdiction or irregularities such as to show that judge hearing application under s127A of the Justices Act 1902 never properly entered into the exercise of his jurisdiction — held: (Mahoney and Meagher JJA; Kirby P dissenting): The District Court is entitled to adopt informal procedures for the speedy determination of disputes — The errors (if any) of the judge were made within jurisdiction and were thus not amenable to correction in the Court of Appeal. CRIMINAL LAW and PROCEDURE — conviction by Local Court — appeal to District Court — appeal by way of rehearing — appellant fails to appear — appeal dismissed and convictions confirmed — late application within time for order setting aside dismissal of appeal — excuse offered for non-appearance by appellant — judge (Freeman DCJ) dismisses application on grounds that appellant had not shown that it was "in the interests of justice" to provide relief — on summons for relief in the nature of prerogative writ to District Court — held: (Mahoney and Meagher JJA; Kirby P dissenting): Relief would be denied because no error was shown in the decision of the judge concerning the "interests of justice". Any such error was not amenable to correction by the Court of Appeal in the exercise of its supervisory jurisdiction. DISTRICT COURT — procedures — informality — whether need for minimum requirements of formality to be observed. Pacific Formwork Pty Ltd v Bignill, Court of Appeal, unreported, 5 August 1992; (1992) NSWJB 102 considered — per Mahoney JA (Meagher JA concurring; Kirby P dissenting): Procedural rules are functional. The District Court may proceed with less formal rules if the parties agree and the interests of justice do not otherwise require. ADMINISTRATIVE LAW — privative section — Justices Act 1902, s146 — whether error of law within jurisdiction. Reischauer v Knoblanche and Ors (1987) 10 NSWLR 40 (CA); Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 (CA); Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (CA) considered. LANDLORD and TENANT - residential tenancy - dispute between landlord and tenant - whether person is "tenant" within extended definition - determination by Residential Tenancies Tribunal - conviction of offences under Residential Tenancies Act 1987 - appeal to District Court - landlord fails to appear - whether order dismissing appeal should be set aside "in the interests of justice". WORDS and PHRASES - "in the interests of justice". Justices Act 1902, s122, s127A, and s146. Residential Tenancies Act 1987, s17, s22, s24, s29, s40, s72, and s119B. Kirby P This application for judicial review concerns the alleged failure of a judge of the District Court (Freeman DCJ) to exercise his jurisdiction under s127A of the Justices Act 1902 as the law requires. 2 UNREPORTED JUDGMENTS A dispute between a landlord and tenant The background facts were largely undisputed. Mr Leo Maley (the claimant) is the owner of a suburban house at 134 Maitland Road, Mayfield, near Newcastle. In February 1990, he allegedly leased a part of his premises to Mr WG Lansbury. A residential tenancy agreement under the Residential Tenancies Act 1987 was executed. Subsequently, in about March 1990, Mr Mite Kristinovski entered into possession of part of the premises and began living there. According to a schedule of payments maintained by the claimant and admitted into evidence, Mr Lansbury paid rent which was accepted by the claimant. Later Mr Kristinovski tendered money for rent but, although this was received, it was allegedly not accepted by the claimant. A dispute arose as to whether Mr Kristinovski was a tenant of the claimant. The dispute eventually led to the claimant's removal of Mr Kristinovski's furniture and belongings from the premises onto the street. The claimant resorted to self-help. Mr Kristinovski was locked out of the premises. Mr Kristinovski commenced proceedings in the Tribunal established by the Residential Tenancies Act. In June 1990 he signed a complaint to the Department of Housing concerning the claimant. Two proceedings were set in train. The first was returned in the Residential Tenancy Tribunal and ultimately heard on 10 September 1990. The Tribunal proceeded in the absence of the claimant who did not appear at the hearing. It found that a residential tenancy agreement existed between him and Mr Kristinovski. It also found that, in his conduct in relation to Mr Kristinovski, the claimant was in breach of certain provisions of the Residential Tenancies Act (s22(1)(b), s24(1) and s29(1)(b) and (c)). That Act significantly modifies the rights of self-help which belonged to a landlord by the common law, subject to the statutes of forceable entry. See now Imperial Acts Application Act 1969, s18. The Tribunal ordered the claimant to pay Mr Kristinovski compensation, being for items belonging to him lost or damaged when they were removed from the premises; anguish and inconvenience suffered as a consequence of breaches of the Residential Tenancies Act; and expenses incurred by Mr Kristinovski in painting the interior of his room before his alleged tenancy was terminated. The total amount ordered was $1,406.75. The landlord is convicted in his absence in the Local Court Subsequently, the second set of proceedings was commenced. On 23 January 1991, eight summonses were issued out of the Local Court at Newcastle alleging breaches of various sections of the Residential Tenancies Act. The informations have been exhibited before this Court. They include alleged breaches of s119B(1) (failure to appear in terms of a s119B(1) notice); s29(2) (changing locks without a tenant's consent or reasonable excuse); s40 (failure to give a receipt for rent tendered on 4 April 1991); s40 (failure to give a receipt for rent tendered on 12 April 1991); s72(1) (unlawfully entering into premises to recover possession); s17(2) (failure to give copy of residential tenancy agreement to the tenant); s22(2) (interfering with tenant's quiet enjoyment); and s24(5) (entering residential premises without consent or authority). When the summonses were returned in the Local Court on 5 April 1991, the claimant appeared before the magistrate to defend the charges. The proceedings were stood over for 14 days. On the new return date, 19 April 1991, the Local Court fixed the hearing to take place on 24 July 1991. It duly came on for hearing that day before Mr Elliott, Magistrate. The exact course of events was not elicited by evidence in these proceedings. But it was not contested that the claimant at first appeared to, and at a certain point walked out of, the proceedings. In his URJ MALEY v HUTCHINS (Kirby P) 3 absence, he was convicted and ordered to pay fines, costs and witnesses' and interpreter's expenses amounting, in all, to $10,523.36. Appeal to the District Court is dismissed in the landlords absence On 12 August 1991 the claimant lodged an appeal to the District Court under s122 of the Justices Act against these latter orders. Such an appeal is conducted by way of rehearing. In the determination of it, the claimant's conduct of the proceedings before the Local Court would have been irrelevant, except insofar as it would probably have made it necessary to proceed to call all the evidence again and impossible to rely upon the transcript of the first hearing, as sometimes happens by agreement. The appeal was mentioned before the District Court on two occasions, the last on 5 December 1991 when it was fixed for hearing on 22 April 1992. On that day, it was returned before Phelan DCJ. The claimant did not appear. In accordance with his powers under the Justices Act, and the settled practice of the District Court, his Honour dismissed the appeals without proceeding to a substantive hearing. He confirmed the claimant's convictions, orders and fines. He ordered the claimant to pay additional costs of the hearing of the appeal to the District Court totalling more than $3,000. The claimant alleges that his failure to attend on the return of his appeal to the District Court was occasioned by a mistake by him as to the date on which the appeal had been set down for hearing. He has sworn an affidavit to that effect. He believed that the hearing date fixed was 29 April 1992. It was in these circumstances that he sought the relief provided by s127A of the Justices Act. It is the conduct of that application which occasions the present proceedings in this Court. An application to vacate the dismissal is rejected $127A of the Justices Act was inserted in the Act in 1974. It reads (relevantly): "127A(2) Where (a) an appeal to the District Court is dismissed upon the failure of an appellant to appear and prosecute the appeal; and (b) within three months after that dismissal the appellant shows to a Judge sufficient cause for his failure to appear and prosecute the appeal, that Judge may, where in his opinion it is in the interests of justice to do so, by order, vacate the order dismissing the appeal and any other order made as a consequence of the failure of the appellant to appear or the dismissal of the appeal. (3) A Judge who makes an order under subs(2) may make the order subject to such conditions as he sees fit... (4) Where an order is made under subs(2), unless the Judge otherwise orders, any stay of execution of the conviction or order against which the appeal was made effected by s123 or s125A(9) and in force immediately before the appeal was dismissed shall continue from the time the appeal was dismissed until the appeal is heard and determined, but no action lies against any person for anything done by that person acting bona fide and without notice of the making of an order under subs(2) to enforce the conviction or order in respect of which the appeal was dismissed." The obvious purpose of the section is to permit the reopening of an appeal dismissed for want of appearance of the appellant. It may be inferred that it was enacted to deal with cases where parties who had appealed to the District Court, for confusion, mistake or misinformation, failed to attend on the return of the appeal. By inference this had happened over the years and called for a facility to provide relief. Like relief is available in civil proceedings in the District Court. 4 UNREPORTED JUDGMENTS See DCR Pt26, RSA. The only conditions for securing the relief under s127A were that the application for such relief should be made promptly (ie within three months after dismissal of the appeal); that the applicant should show to the judge sufficient cause for the failure to appear on the return of the appeal; and that he or she should convince the judge that it was "in the interests of justice" for the judge to vacate the earlier order. As it was made clear to this Court, the claimant's contention is that Mr Kristinovski was not a "tenant" for the purposes of the Residential Tenancies Act. In fact, the claimant alleges that Mr Kristinovski was a squatter, occupying his premises unlawfully and without authority. The jurisdiction exercised under the Residential Tenancies Act, both by the Tribunal and (more relevantly) by the Local Court, rested upon the premise that it was shown to the necessary standard that Mr Kristinovski was indeed a "tenant". It is at this point, and on 21 August 1992, that Freeman DCJ heard the claimant's application. Named as "defendant" to the application was Mr Anthony Hutchins (the opponent) who was the informant whose information against the claimant for the breaches of the Residential Tenancies Act had occasioned his earlier convictions. The opponent disputed the relief sought. In support of the application made by the claimant's notice of motion there was filed a short affidavit, sworn, 19 May 1992, which read, relevantly: "2. I am the landlord of the premises at 134 Maitland Road, Mayfield. 3. I believed the appeals brought before this Court and dealt with ex parte on 22 April 1992 had been set down for hearing on 29 April 1992. 4. I attended Court on 29 April 1992 and informed (sic) of the ex parte decision. 5. I request this honourable Court to set aside the decision and relist the appeals for hearing. 6. In my defence I intend to lead evidence that the summons purportedly served on me was not sealed and thus of no effect. 7. I say that the Court below erred in law and/or fact in finding that the complainant Kristinovski (sic) was a tenant at these premises. 8. I say that at all material times the premises were subject to a lease to a Mr Landsbury (sic) which lease commenced on 15 February 1990 and was due to terminate 14 February 1992." Freeman DCJ heard the representatives of the parties. The transcript of what took place has been exhibited before this Court. After a short opening, his Honour intervened: "HIS HONOUR: I have to form an opinion that it is in the interests of justice to let him in. Now, would it be in the interests of justice to let him argue some specious legal point? If that were his defence, why should I let him in?" It seems fairly clear that Freeman DCJ was there referring to the defence which had equally failed before the Local Court relating to the suggested failure to seal the summons. His Honour's irritation with this point is, perhaps, understandable. The argument was never relied upon in this Court. However, the solicitor for the claimant immediately indicated to Freeman DCJ the real nature of the merits argument which his client wished to advance in the appeal to the District Court if it were revived: " [SOLICITOR]: His argument is that the summonses arose from a finding that a certain person was a tenant of his in certain premises and he denies that." Unfortunately, perhaps still affected by the reliance on the unmeritorious want of URJ MALEY v HUTCHINS (Kirby P) 5 sealing of the summons contained in the claimant's affidavit, Freeman DCJ went on to raise what appear to be three irrelevant considerations of his own: (a) The misdescription of the claimant (who was the applicant in the District Court motion) as a "plaintiff"; (b) The lack of evidence that stamp duty had been paid on the lease to Mr Lansbury when it was tendered before him; and (c) The conduct of the claimant in the initial proceedings before the magistrate ("But doesn't a lot of this arise because he would not speak, would not even admit that he was Leo Maley?"). As the proceedings sought in the District Court would be a rehearing, the misconceived way in which the claimant had conducted them in the Local Court was irrelevant to the "interests of justice" which were properly the focus of Freeman DCJ's attention. The affidavit which I have incorporated was brief to the point of extreme austerity. It stated in two lines the reason for the failure to attend at the return date of the appeal. It asserted a simple mistaken apprehension. So far as the defence was concerned, it made it fairly clear that the claimant was asserting that Mr Kristinovski was not a tenant. If he could make that assertion good, he had a proper defence on the merits. The assertion was probably a statement of law. But the affidavit was not objected to upon that ground. Irregularities in the hearing of the application Unfortunately, the three irrelevancies to which I have referred do not exhaust the unsatisfactory features of the hearing of the motion to the District Court. The proceedings, which encompass but six pages of transcript, appear to have been telescoped by the learned Judge. They were doubtless heard in a busy motion list where excessive verbosity would be discouraged. But a minimum of formality must be observed by courts in disposing of legal proceedings. Cf the observations of Clarke JA in Pacific Formwork Pty Ltd v Bignill, Court of Appeal, unreported, 5 August 1992; (1992) NSWJB 102 and Admax Processing Pty Ltd v Hua Dong Pan, Court of Appeal, unreported, 24 March 1993. This was, after all, an application to be let in to dispute serious criminal convictions which now stand against the claimant. They were criminal convictions in respect of which he would otherwise have been entitled to have an appeal without first demonstrating error on the part of the Local Court. The procedures of such appeals are described by McHugh JA in R v Goldfinch (1987) 30 A Crim R 212 (CA) at 218: "An appeal to the District Court under s122 is not an appeal in the sense that lawyers now use that term. It is an election to have the case retried on new materials. Once a person elects to appeal under s122 the Crown must prove again its case. It may do so by the introduction of new evidence on the issues of liability and sentence... Likewise, the appellant is not bound by the way he conducted the case in the Local Court. He may require the Crown to prove the case against him even though he pleaded guilty before the Local Court. Moreover in an appeal under s122 the sentence is the sentence of the Judge, not that of the Magistrate." Whilst it is true that, at the point the proceedings were before Freeman DCJ, his Honour was not considering the claimant's appeal to the District Court, it was obviously relevant to the elucidation of what the "interests of justice" required to bear in mind the criminal nature of the convictions and the rather peculiar nature of the "appeal" to which the claimant would have been entitled, but for his failure to attend on the proper return date. If the only defence had been one relating to the sealing of the original summons, the irritation in his Honour's hearing of the motion would have been entirely justifiable. But it was made plain that there was 6 UNREPORTED JUDGMENTS a real issue to be tried, viz whether Mr Kristinovski was a tenant. As a glance at the Residential Tenancies Act would have demonstrated to his Honour, that issue is not without complexity. Its complexities might, or might not, have been enlarged by the earlier findings of the Residential Tenancies Tribunal, a matter not adverted to either before Freeman DCJ or in this Court. Elucidating the issue would certainly require some detailed evidence for an extended definition of "tenancy" is provided by that Act. Even if Mr Kristinovski were not a "tenant" at common law, he might have been properly so described under the Residential Tenancies Act. Instead of proceeding to allow the representative of the claimant to prove his case and call his evidence on the motion in the normal way, the whole proceedings before Freeman DCJ were compressed. They amounted, in the end, to nothing more than exchanges between his Honour and the representatives of the parties. The affidavit of the claimant, referred to above, was never formally read. Its content does not appear to have been admitted into evidence. The claimant never gave oral evidence, although his representative at one point said: "SOLICITOR: Your Honour, my client is prepared to give evidence as to his failure to appear in Court." In response to that statement, the following passage appeared: "HIS HONOUR: I assume his evidence will be just what you have told me - that he did not know what date was announced. SOLICITOR: He instructs me he understood the date was the 29th of the 4th, and that is why he failed to turn up. HIS HONOUR: Nobody else was under any misapprehension. But, doesn't a lot of this arise because he would not speak, would not even admit that he was Leo Maley?" There then followed further addresses by the legal representatives which are unrecorded. The proceedings then moved swiftly to their conclusion: "HIS HONOUR: I am not satisfied that the interests of justice require me to set this determination of Judge Phelan aside. The application is refused. I will return the lease." The "lease" referred to was that between the claimant and Mr Lansbury. It was tendered by the claimant's solicitor. It does not appear ever to have been formally admitted into evidence by his Honour. This was doubtless because of the confusion raised by him concerning the suggested absence of stamping - a point raised neither in the District Court nor in this Court by the opponent and one which appears to have been irrelevant. The result of the foregoing is that the proceedings were not, as I would think, conducted according to law. The judge did not address his attention to the relevant considerations. Although the claimant was present and willing to give evidence, no such evidence was received. A form of lease which (to put it no higher) was at least relevant to the issue of tenancy was rejected or certainly not admitted into evidence. Its tender was not ruled upon. The document was merely returned after the judge raised a consideration in respect of it which is conceded to have been irrelevant. The whole proceeding was conducted with an excessive informality. It was not conducted as the Act contemplated an application of this kind, affecting criminal convictions, would be heard. A failure to follow careful procedures in criminal matters - or matters criminal in nature - can lead courts into error as was found in the High Court of the proceedings in this Court in Smith v New South Wales Bar Association [No 2] (1992) 66 ALJR 605 (HC) at URJ MALEY v HUTCHINS (Kirby P) 7 608. Efficiency and economy have a high value in our courts but not when they get in the way of lawful and just procedures. In the end, Freeman DCJ indicated that he would proceed upon an assumption that the evidence given in the claimant's affidavit would be adduced. But then, immediately, he cast doubt upon the statement that the claimant had made a mistake in respect of the hearing date. If there was to be an issue on this matter, or any other matter in the judge's mind, his duty was plain. It was to indicate to the parties that the informal procedure into which he had led them was inappropriate. He would be duty-bound to indicate that there were matters which were troubling him which ought to be formally proved to be dealt with. Then the proceedings would have been commenced and concluded in the ordinary way, ie by the reading of affidavits, ruling upon their content (where objected to), cross examination and the tender of written or other oral evidence. Possible objections to intervention There are two possible objections to the intervention of this Court notwithstanding the above defects in the procedures which were followed in the District Court. The first is the provision of the Justices Act, s146 in effect prohibiting relief in the nature of certiorari. However, that provision is not fatal to the summons. See Ex parte Blackwell re Hatley 1965 83 WN (Pt1) (NSW) 109 and cases there cited. See also Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 (CA); Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (CA). If the judge fails to enter into his jurisdiction, and to exercise it according to law, the prohibition on relief in the nature of certiorari will not prevent the grant of relief by this Court in a proper case. The second and more substantial objection was that, however irregular the judge's exercise of his jurisdiction was, he had in fact entered into its exercise so that the mistakes, if any, were made within jurisdiction and did not take his conduct outside jurisdiction so as to be amenable to relief by order of this Court. This argument presents a difficult question. The borderline between errors within and outside jurisdiction is not always crystal clear. See Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian and Another (1991) 173 CLR 132, 140. See also Reischauer v Knoblanche and Ors (1987) 10 NSWLR 40 (CA) at 47. This case is, I would concede, on the borderline. However, the procedures adopted by Freeman DCJ were so informal that I do not consider that the judge properly conducted the hearing of the summons for an order as s127A of the Act contemplated. The words of Priestley JA in Kopuz (above) at 245 are applicable in this case: "When I said at the outset that this matter was both disturbing and raised a difficult point, the difficulty I had in mind was whether what took place before Saunders DCJ can properly be described as such a failure to exercise jurisdiction as to amount effectively to a failure to exercise jurisdiction at all. In earlier times it probably would not; but following the clarification in Ridge v Baldwin (1964) AC 40 of the way in which the ideas of natural justice (as it was in that case still called) apply in judicial review, and the adopting in the High Court of what was said in Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 by Lord Reid (at 171) and Lord Pearce (at 195), (see R v Dunphy: ex parte Maynes, (1978) 139 CLR 482, at 485, 486, and 496-7, it has been accepted that denial of procedural fairness (to use the latest description) is a matter going to judicial error. 8 UNREPORTED JUDGMENTS With these considerations in mind it seems to me that the better view in the present case is that the combination of the refusal to exercise jurisdiction, even if it should be regarded as having been relevantly acquiesced in, and the rejection of evidence which seems to me to have been relevant, resulted in a denial of procedural fairness to the claimant which vitiated the orders made by the judge in the different appeals, leaving them outside the scope of s146 of the Justices Act and making it appropriate for the powers under s69 to be used. It may be said that the legal representative then appearing for the claimant before Freeman DCJ ought to have taken bolder and further steps in defence of the claimant's rights. He ought to have insisted upon the calling of witnesses or the tender of documents. Much is expected of legal practitioners. Clients are normally bound by their representatives' conduct of their causes. See eg R v Birks (1990) 19 NSWLR 677 (CCA), 683. However cases arise where parties will not be taken to have waived proper proceedings or to have accepted seriously irregular conduct of the proceedings where the professional conduct falls so far short of what the law requires that it does not amount to the proper conduct of the proceedings at all. This, with every respect to the judge, is what occurred here. It is seen most clearly in the failure of his Honour to admit into evidence the lease which was clearly at least relevant to the issue the defence which the claimant wished to advance. That defence was therefore clearly relevant to what the "interest' of justice" required. Whilst one might validly object to the inadequacy of the affidavit read before Freeman DCJ, it did assert matters which, if formally proved and accepted on the return of an appeal by way of full rehearing, would have warranted the conclusion that the "interests of justice" required that the claimant be given his day in court. In argument before this Court it was suggested that it was not shown that the lease was relevant to a defence. In particular, it was suggested that there were two "flats" in the subject premises and that the lease to Mr Kristinovski might have related to the other flat which Mr Lansbury had not occupied. However, this statement is negatived by an affidavit which the Court permitted to be read in these proceedings on the part of the claimant. That affidavit deposed to the fact that the premises leased to Mr Lansbury were on the east side of the Mayfield home and the same flat which Mr Kristinovski claimed the claimant had leased to him. Similarly, there was read, although over the objection of the opponent, an affidavit of the claimant which had been tendered on the hearing in this Court. This spoke of the unfairness which the claimant will suffer if his convictions stand and he never gets a hearing of his case. Conclusion: the order should be quashed I would grant relief. The proceedings in this Court commenced by way of appeal. That was clearly erroneous. But the error was cured and the relief in the nature of the prerogative writ of certiorari was sought and should issue. The District Court, which was belatedly added to the summons, appeared to submit to any order of this Court and was excused. The claimant should have his application under s127A considered by the District Court according law. That is what the interests of justice required on the material before Freeman DCJ. It is also required by the material considered in the proceedings in this Court. Otherwise the claimant will have a large number of serious criminal convictions and a substantial obligation to pay fines, costs and fees without ever having had a proper opportunity to present his case for relief. It was to safeguard against this URJ MALEY v HUTCHINS (Mahoney JA) 9 result that the Justices Act was amended. That amendment to that Act which enacted 127A is beneficial. It should not be given a narrow or unduly technical, still less a hostile, reading. Orders The orders which I would favour are therefore these: 1. Call up the record of the District Court in matter number 91/32/0649 between the claimant and the opponent; 2. Quash the purported order of his Honour Judge Freeman dated 21 August 1992 refusing the application made by the claimant for an order pursuant to s127A Justices Act 1902; 3. In lieu thereof, order that the proceedings be returned to the District Court for rehearing of the claimant's application according to law; 4. Order that the first opponent pay the claimant's costs of the summons to this Court. No order in respect of the costs of the second opponent which submitted; 5. Claimant's purported appeal dismissed as incompetent; and 6. Costs in the District Court reserved to the judge hearing the application. Mahoney JA The plaintiff Mr Maley is the owner of a house near Newcastle. Proceedings have been taken against him because of what he has done there. In 1990 proceedings were brought against him in the Residential Tenancies Tribunal. Mr Maley did not appear to defend the proceedings and orders were made against him involving some $1400. On 24 July 1991 in a Local Court, Mr Maley was charged with breaches of the Residential Tenancies Act 1987. He walked out of the proceedings. He was convicted and fined and ordered to pay amounts totalling, the court is informed, some $10,523.36. On 12 August 1991 he lodged an appeal to the District Court against those convictions. On 5 December 1991, the date for hearing of the appeals was fixed for 22 April 1992. On 22 April 1992, when the appeals were called on for hearing, Mr Maley did not appear. His Honour Judge Phelan dismissed the appeals, confirmed the convictions, orders and fines and ordered Mr Maley to pay further legal costs and expenses. On a date which has not been clearly established before this Court, Mr Maley filed a motion under s127A of the Justices Act, seeking an order that the dismissal of his appeals be set aside and that he be allowed to proceed with them. On 21 August 1992 the motion under s127A came on for hearing at Newcastle before his Honour Judge Freeman. Mr Maley was represented by Mr Boyd, solicitor. The informant, Mr Hutchins, an officer of the Department of Housing, was represented by Mr Kozlowski. His Honour refused Mr Maley's application. Mr Maley instituted or sought to institute proceedings by way of appeal to this Court. Objection was taken to what he had done and, before this Court, proceedings of the nature of an appeal have been abandoned. What Mr Maley now seeks is an order in the nature of certiorari quashing the order made by his Honour Judge Freeman and an order in the nature of mandamus directing the exercise according to law of the discretion under s127A. It is important that the basis of this application be clearly understood. This is not an appeal against the merits of what his Honour did. Mr Cameron, who now appears for Mr Maley, accepted that it is not sufficient that it appear that the decision of his Honour Judge Freeman was wrong, in the sense that it was in the 10 UNREPORTED JUDGMENTS interests of justice that the plaintiff be let in to pursue the appeals. This is an application for prerogative relief. Therefore, before this Court, the case for Mr Maley has been argued on two bases: that the proceedings before Freeman DCJ were so conducted that his Honour acted without jurisdiction; and/or that his Honour failed to exercise the jurisdiction conferred by s127A to the extent that relief in the nature of mandamus should be granted. Prima facie Freeman DCJ had jurisdiction to make the order he did. His Honour recognised that the practical issue posed to the court for Mr Maley by his solicitor Mr Boyd was whether, as his Honour described the matter, "it is in the interests of justice to let him in". Mr Boyd accepted, in my opinion correctly, that in deciding whether an order is to be made under s127A, it is relevant for the court to consider, inter alia, the circumstances in which the applicant did not appear when the appeal was called on for hearing and whether the applicant has such a likelihood of succeeding upon the appeal that it would be "in the interests of justice" that he be allowed to pursue the appeal. In so phrasing the matter, I am conscious that, on such an appeal to the District Court, it is for the prosecutor to commence and to prove his case against the appellant. It is not necessary for present purposes to examine questions of onus. The judge, under s127A, may consider whether, on the evidence before him, the circumstances are such that, as on the rehearing of the proceeding on appeal, the appellant would be convicted. The learned judge dealt with the matter in such a way. In my opinion, what the learned judge did was within the jurisdiction granted to him by s127A. I come now to the question whether the judge failed to exercise his jurisdiction. The submissions of Mr Cameron, for Mr Maley, in this Court were put in various ways but the main thrust of them was that, because of the procedure followed by the parties on the hearing of the application, there had been an actual or constructive failure to hear the application. Insofar as the proceeding before Freeman DCJ is recorded in the transcript, the course which was taken was less than fully formal. I mean by this only that, if the matter were conducted with full formality, Mr Boyd, for Mr Maley, would presumably have read the notice of motion and Mr Maley's affidavit of 19 May 1992 in support of it. He would then have called to the witness box any other witness to give evidence and the evidence of such witness or witnesses would have been elicited in examination-in-chief, cross examination and re-examination. Mr Kozlowski for the informant would have proceeded in a similar fashion and at the conclusion of the evidence, counsel would have addressed. In fact, the proceeding, insofar as it is recorded in the transcript, proceeded in a less formal way. Mr Boyd assumed that his Honour had read the notice of motion and the affidavit of 19 May 1992 and argument in the matter proceeded on that basis. His Honour indicated that the documents before him "are of very little assistance to me at all". Mr Kozlowski then detailed facts constituting the context in which the prosecutions were brought and stated what had happened to the parties at various stages leading up to the application which was before his Honour. This was done without objection. Mr Boyd said: "Most of the matter put by Mr Kozlowski is accepted. That is a fair resume of what occurred in the proceedings, I am instructed, but Mr Maley took issue with the summonses themselves, the ground of the action before him". URJ MALEY v HUTCHINS (Mahoney JA) 11 Mr Boyd pointed out that in Mr Maley's affidavit in support of the notice of motion he took "issue with the findings of the magistrate" and claimed that he had "'a defence in that at that time Mr Kristinovski was not a tenant and someone else was". (In the informations laid against Mr Maley, Mr Kristinovski had been named as the tenant of the premises). Mr Boyd indicated that the defence was that a Mr Lansbury was the tenant. He said: "I am instructed he has been located in Muswellbrook and would be available". There was then discussion concerning the admissibility of Mr Lansbury's evidence and of a lease in writing granting a tenancy to him. Mr Boyd had previously referred to the fact that, in the affidavit of 19 May 1992, Mr Maley had said: "7. I say that the Court below erred in law and/or fact in finding that the complainant Kristinovski was a tenant at these premises. 8. I say that at all material times the premises were subject to a lease to a Mr Landsbury which lease commenced on 15 February 1990 and was due to terminate 14 February 1992". Mr Boyd said: "I can tender a document, apparently signed by Mr Walter Lansbury". The lease, which is before this Court, was for a term of twelve months commencing on 15 February 1990 and ending on 14 February 1991. Mr Kozlowski indicated that he did not object to his Honour seeing the document. However, he pointed out that the lease referred to "the east side of the premises" and contended that the premises of which Mr Kristinovski was alleged to be the tenant was "Flat 1" which, Mr Kozlowski said, was "the western side of the premises". No objection was taken to that statement being made. The status of it was not formally ruled upon but it appears to have been acted upon, for His Honour said: "It is a question of whether this lease is relevant to the premises or not". His Honour then said: "Mr Boyd, if all of this arises largely because (a) your client walks out of the court because he has a fit of pique because of what the magistrate does, and (b) because he does not turn up at court, why should I let him in?" Mr Boyd then "addressed his Honour'. He indicated that Mr Maley was "prepared to give evidence as to his failure to appear in court" and his Honour said, "I assume his evidence will be just what you have told me - that he did not know what date was announced". Mr Boyd replied, "He instructs me he understood the date was the 29th of the 4th, and that is why he failed to turn up". Mr Boyd then "further addressed his Honour". At the end of Mr Boyd's address, his Honour said: "T am not satisfied that the interests of justice require me to set this determination of Judge Phelan aside. The application is refused. I will return the lease, Mr Boyd." As I have said, the course followed upon the hearing of the application was less than fully formal. It is desirable that proceedings in the courts, and nonetheless in the District Court, follow the ordinary and conventional course, if for no other reason than that disputes of the present kind will be less likely to occur and speculation and criticism as to what a judge has done may be avoided. However, it is open to the District Court, acting within the terms of the legislation which governs it, to adopt less formal procedures where the parties so agree and the interests of justice do not otherwise require. Procedural rules are functional. It would be sad - and the speedy determination of disputes would be 12 UNREPORTED JUDGMENTS impeded - if courts could not, with the assent of the parties, go to the heart of a dispute and deal with it. Where there are no formal pleadings or no formal identification of issues, a competent judge will often, by dialogue with the lawyers before him, clear away the inessentials and isolate the essential issue. Private cost and public time may be saved by his doing so: provided, of course, he does it in a proper way. In the present case, the judge and the parties endeavoured, I think, to go to the substance of the matter without spending unnecessary time or money on formalities. Statements made from the Bar table were accepted in a manner which in practice is not uncommon in the senior courts. Provided a court acts within the law and in particular the statutory provisions regulating what it may do, I do not think that this Court, in the exercise of its supervisory jurisdiction, should impose formalities which the court and the parties at the trial level see as unnecessary for the proper determination of the issues they present. Approaching the proceeding before the learned judge on this basis, I do not conclude that he failed to exercise the jurisdiction which he was called upon to exercise. Mr Cameron, for Mr Maley, has submitted that there was or may have been a proper case for the exercise of the power under s127A. His Honour accepted, at least for the purposes of the application, that Mr Maley had failed to appear on the appeals because of a mistake as to the date on which they would be heard. Mr Cameron suggested that his affidavit of 19 May 1992 showed that there was a defence of substance, viz, that the tenant was not the person named in the informations. If these facts were accepted, the argument suggested, there was a case for the exercise of the power under s127A. The learned judge did not indicate that he accepted or rejected the contention that Mr Kristinovski was not the tenant and that Mr Lansbury was. He may have concluded that he was skeptical of the evidence of Mr Maley in his affidavit. He may have thought that the lease did not establish that the flat the subject of this dispute was leased to Mr Lansbury. And he may have taken the view that, in the previous proceedings, it had been held that Mr Kristinovski was the tenant of the subject flat and that, if the contrary was to be set up, Mr Lansbury should have been called to establish it. It was in these circumstances that he indicated that he was "not satisfied that the interests of justice require me to set this determination of Judge Phelan aside". As I have said, upon an application such as this, it is not sufficient for Mr Maley to show that his Honour's decision was wrong or that this Court would have come to a different conclusion. It is necessary that he show that his Honour failed or refused to exercise his discretion. I do not think that has been shown. It is appropriate to add two further things. First, this Court is asked, in the exercise of its supervisory jurisdiction, to set aside the judgment of a judge of the District Court. The basis of the application as made to this Court was not apparent at the commencement of the application. It emerged only, piece by piece, as the deficiencies of the case presented for Mr Maley emerged. In the end, the court has been left in the position where it is invited to hold that the learned judge fell into jurisdictional error in circumstances in which he may very well have acted precisely as 127A requires. In addition to the matters to which I have referred, the court does not know what was said during the various addresses of Mr Boyd: no attempt has been made to deal with this matter. I do not think that this is a basis upon which the court should conclude that the learned judge erred. URJ MALEY v HUTCHINS (Meagher JA) 13 In putting the matter this way, I do not direct criticism at those now appearing for Mr Maley. It is not clear what has been the material available to them at various times. It is sufficient to indicate that if the court is asked to exercise its supervisory jurisdiction to set aside a judge's orders, it should be provided by evidence that demonstrates that the judge erred and in what respect. Second, I am conscious of what was urged by Mr Cameron in relation to the convictions, fines and orders to which Mr Maley is subject. If Mr Maley's evidence be completely correct and if what has been said for him be accepted, his error in failing to appear to prosecute his appeals may have imposed hardship on him. The convictions and the sums involved are of some significance. I have therefore examined with some care the course of the proceedings, insofar as it appears from the material which is now before this Court and what has been accepted from the Bar table. The tenancy disputes which he had were before the Residential Tenancies Tribunal. Mr Maley had the opportunity to put his case: he did not do so. That Tribunal apparently concluded that Mr Kristinovski was the tenant of the relevant premises. Mr Hutchins, an officer of the Housing Department, then brought criminal proceedings on that basis. Mr Maley, being dissatisfied with the refusal of an adjournment by the magistrate, walked out of the magistrate's court and allowed the criminal proceedings to be heard in his absence. The case was, it appears, duly proved against him; the contrary has not been urged. His failure to appear on the appeals was, it is accepted, due at least to his own error. The s127A application was presented by him in a less than satisfactory manner and without the evidence of a witness, Mr Lansbury, whose evidence was directly relevant to the strength of Mr Maley's contention. It is, in a sense, because of the informal way in which his case was presented that he now seeks relief from this Court. In all of the circumstances, I am not satisfied that there has been such injustice as Mr Cameron's submissions have suggested. The application should be refused with costs. Meagher JA I agree with Mahoney JA. Summons dismissed with costs. Counsel for the Claimant: RW Cameron Instructed by: JJ Wheeler and Co Counsel for 1st Opponent: JE Thomson Instructed by: Sparke Helmore Withycombe Counsel for 2nd Opponent: S Robinson (Solr) (submitting) Instructed by: HK Roberts, State Crown Solicitor