Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Geftlic v Merhi & Ors [2011] NSWCA 241 Hearing dates: 6 July 2011 Decision date: 25 August 2011 Before: Giles JA at [1], Young JA at [22], Handley AJA at [27] Decision: Application dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: JUDICIAL REVIEW - application for certiorari - respondent brought proceedings in Local Court - assessor gave judgment in favour of respondent - applicant appealed to District Court on grounds of jurisdictional error and denial of procedural fairness - appeal dismissed - no relief in relation to Local Court proceedings when relying on same grounds as those in unsuccessful appeal to District Court - (per Giles JA) relief refused as matter of discretion - (per Handley AJA, Young JA agreeing) decision of District Court created binding issue estoppels - no relief in relation to District Court proceedings - (per curiam) no jurisdictional error or error of law on the face of the record. Cases Cited: Craig v The State of South Australia (1995) 184 CLR 163; Hockey v Yelland [1984] HCA 72, (1984) 157 CLR 124; Jackson v Goldsmith [1950] HCA 22, 81 CLR 446; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 1; Marginson v Blackburn BC [1939] 2 KB 426 CA, 438; Meagher v Stevenson (1993) 40 NSWLR 736; Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434; (2008) 263 ALR 556; Ramsey v Pigram [1968] HCA 34; (1968)118 CLR 271; Watt (formerly Carter) v Ahsan [2007] UKHL 51, [2008] 1 AC 696; Wishart v Fraser (1941) 64 CLR 470. Texts Cited: Wade & Forsyth, Administrative Law, 9th ed (Oxford University Press, 2004) Category: Principal judgment Parties: Layla Hassan Geftlic - Applicant Mariam Merhi - First Respondent Local Court of New South Wales - Second Respondent District Court of New South Wales - Third Respondent Representation: Applicant in person (assisted by J M Patel) U Coustas (Solicitor) - First Respondent Submitting appearances - Second and Third Respondents Applicant in person Lexington Law Group Pty Ltd - First Respondent I V Knight, Crown Solicitor - Second and Third Respondents File Number(s): CA 2010/337205 Decision under appeal Citation: Geftlic v Merhi (Garling DCJ, 14 August 2009, unreported) Date of Decision: 2009-08-14 00:00:00 Before: Garling DCJ File Number(s): 1175/09 Judgment 1GILES JA : This is an application for relief in the nature of certiorari. The applicant claims orders quashing a decision in the Small Claims Division of the Local Court and the decision of the District Court dismissing an appeal from the Local Court. 2The applicant was the defendant in the Local Court and appellant in the District Court, and I will refer to her as the defendant. The first respondent was the plaintiff in the Local Court and respondent in the District Court, and I will refer to her as the plaintiff. The second and third respondents, the Local Court and the District Court, entered submitting appearances save as to costs. 3In November 2007 the plaintiff brought proceedings in the Local Court to recover $10,000 allegedly lent to the defendant. The defence filed by the defendant denied all the plaintiff's allegations. 4The proceedings came before an Assessor for hearing on 15 December 2008 and 23 February 2009. The Assessor found that the money had been lent and that the loan was legally enforceable and was repayable. She gave judgment for the plaintiff for $10,000, together with interest and costs and court fees. 5The defendant appealed to the District Court pursuant to s 39(2) of the Local Court Act 2007. Appeal lay "only on the ground of lack of jurisdiction or denial of procedural fairness". 6The appeal came before Garling DCJ on 14 August 2009. On behalf of the defendant, it was submitted that the Local Court had failed to exercise its jurisdiction because it should have required for itself that two witnesses whose statutory declarations were before the Assessor be called for cross-examination, and that there had been constructive failure by the Assessor to exercise jurisdiction because there was no probative evidence justifying the judgment. It was submitted that the defendant had been denied procedural fairness because the Assessor had not reached her decision according to law and had come to it in the absence of the requisite proof. His Honour held that there had been no lack of jurisdiction and no denial of procedural fairness. He ordered that the appeal be dismissed with costs. 7The defendant applied for leave to appeal to this Court from the decision of Garling DCJ, but the appeal was dismissed as incompetent. The defendant then filed her summons seeking relief by way of judicial review. 8The defendant and the plaintiff were legally represented in the Local Court and the District Court. In this application the plaintiff was legally represented, but the defendant was not; however, the defendant had the assistance of a legally qualified person who had represented her pro bono in the District Court, and who spoke for her. 9The claim to relief in relation to the decision of the Local Court may be misconceived. 10Had Garling DCJ varied or set aside the order of the Local Court, the order of the District Court would have been the operative order between the parties. An order confirming the order of the Local Court after a rehearing on appeal would also have become the operative order between the parties: Wishart v Fraser (1941) 64 CLR 470 at 478, 482-3. It is strongly arguable that an order dismissing an all grounds appeal from the order of the Local Court would act as what Dixon J described as "a judicial declaration by a competent court ... establishing the order of the magistrate and preventing it being called in question" ( Wishart v Fraser at 482; see also per Starke J at 478, "a judicial determination by a competent and higher authority that the conviction was right"). 11In the present case there is the additional consideration that the appeal to the District Court was confined to lack of jurisdiction or denial of procedural fairness. For that reason, it may be that the judicial declaration by a competent court was only as to jurisdiction and procedural fairness, and left an operative order for the payment of money made in the Local Court. Or it may be that the judicial declaration as to jurisdiction and procedural fairness was operative between the parties so as to preclude judicial review of the decision of the Local Court and challenge to its order for payment of money on the grounds of lack of jurisdiction or denial of procedural fairness. In Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 1 an appeal to the Full Bench of the Industrial Court, on grounds limited by the grant of leave to appeal, had been dismissed, the application for judicial review was in relation to the decision of both the trial judge and the Full Bench, and the High Court ordered that the orders at both levels be quashed (see at [109], [123]). The present question was not raised. 12These are deep waters: perhaps at the outer limits of possibility, does the institutional entrenchment of the supervisory jurisdiction of the Supreme Court in matters of jurisdictional error recognised in Kirk v Industrial Court of New South Wales bear upon whether judicial review is precluded by a limited appeal, or the extent of any preclusion? The submissions scarcely disturbed the surface of the waters. I prefer not to express a concluded view. 13Even if Wishart v Fraser does not apply by extension so as to exclude judicial review of the decision of the Local Court, the discretion to grant relief is very much moulded by the position which would come about if relief were granted. The District Court has held that there was no lack of jurisdiction and no procedural unfairness in the Local Court. Unless that decision is quashed, there would be stark inconsistency if this Court held that there was lack of jurisdiction or procedural unfairness. 14It is sufficient as to the decision of the Local Court that, the defendant having unsuccessfully exercised a right of appeal on the grounds of lack of jurisdiction and denial of procedural fairness, as a matter of discretion she should not be granted relief when she relies on the same grounds in this Court. It would be a rare case in which two bites at the cherry should be permitted, one by appeal and when the appeal fails another by judicial review. In Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434; (2008) 263 ALR 556 it was considered that the cherry had been permissibly divided, but it was not divided in the present case. 15In the present case the grounds for relief were not clearly formulated, but the complaints were all of the same nature as those which had been made in the District Court although in some respects differing in detail. The defendant wished to go into the pre-hearing management of the proceedings in the Local Court and rulings made by the Assessor as to the evidence which would be received, including as to the circumstances in which the two witnesses were not required for cross-examination. She said that the Assessor "reached her ultimate decision based on mere idle speculation and without any probative evidence that could sustain the decision in law": this is taken from the written submissions, and was the substance of the oral submissions. The complaints were a second bite at the one cherry. As a matter of discretion, relief should be refused. 16The question then is whether there was jurisdictional error or error of law on the face of the record in the District Court. 17There is no basis for jurisdictional error on the part of Garling DCJ. A submission was made in language of procedural unfairness, but it stemmed from a misunderstanding of procedural unfairness and the submission was in truth that the judge had come to the wrong decision. That is not jurisdictional error. If his Honour's decision was wrong, his jurisdiction included making a wrong decision. 18The defendant's submissions did not identify any error of law on the face of the record. The submissions were made on the basis that the record included all the evidence and the submissions in the District Court, but it does not: Craig v The State of South Australia (1995) 184 CLR 163 at 180, as modified by s 69(4) of the Supreme Court Act 1970 so that the record includes the reasons of the court or tribunal. Indeed, the written submissions prepared on behalf of the defendant went far beyond that material. 19The defendant's complaints in the District Court have been earlier mentioned. His Honour found, on the evidence in the District Court, that the lawyer representing the defendant had not asked that the two witnesses be called for cross-examination. His Honour correctly said that it was not for the Assessor to run the defendant's case. His Honour said that he had read the transcript before the Assessor, including the submissions, and the statements of the witnesses, and he concluded that the Assessor's approach to the hearing and her decision did not reveal any denial of procedural fairness. His Honour correctly did not review the merits of the decision. I am unable to see any error of law on the face of the record. 20Although going beyond inquiry into error of law on the face of the record, having read the evidence in the Local Court and the Assessor's reasons I consider that it was entirely open to the Assessor to find that the money had been lent and the defendant was liable to repay it. 21The application should be dismissed with costs. 22YOUNG JA : I agree with my brothers that the result of this application is that it must be dismissed with costs. 23There is a slight disagreement between my brothers as to whether the law requires the application to be dismissed in light of the events (Handley AJA) or whether it is preferable to leave that question open until it can be fully argued (as did not occur in the present case) and dismiss the application on discretionary grounds (Giles JA). Handley AJA appears to doubt whether such a discretion exists where the claim for judicial review is based on lack of jurisdiction or denial of procedural fairness. 24I consider that the conclusion reached by Handley AJA is sufficiently clear that I should respectfully endorse it. 25However, I also consider that the Court does have a discretion to refuse relief under what is commonly called "certiorari" in all cases. It is not uncommon for courts to exercise their discretion against the grant of relief where there has been a denial of procedural fairness but the conduct of the applicant, or his or her failure to object at the time or avail himself or herself of alternative relief, or the minor part played by the lack of procedural fairness, disinclines the Court to grant relief; see eg Wade & Forsyth, Administrative Law , 9 th ed (Oxford University Press, 2004) pp 509-510 and 701-3. 26Thus, had I not been of the view that Handley AJA's view is correct, I would have, for the reasons given by Giles JA, dismissed the claim on discretionary grounds. 27HANDLEY AJA : This is an application to judicially review a decision of the District Court and the Small Claims Division of the Local Court. I have had the benefit of reading the reasons for judgment of Giles JA. I agree that the application fails and should be dismissed with costs but prefer to base my decision on different grounds. 28The respondent sued the applicant in the Small Claims Division to recover money allegedly lent to the applicant. On 23 February 2009, the respondent recovered judgment for $10,000. 29The applicant exercised her right under s 39(2) of the Local Court Act 2007 as amended to appeal to the District Court. Her appeal was dismissed by Garling DCJ on 14 August 2009. 30On 20 September 2010 this Court dismissed as incompetent her application for leave to appeal from that decision. On 12 October 2010, the applicant commenced the present proceedings. 31Section 38 of the Local Court Act provides that, subject to the Act, the judgments and orders of the court are final and conclusive. Section 39(2) of the original Act provided: "A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on the grounds of lack of jurisdiction or denial of procedural fairness." 32Section 39(2) was amended by the Courts and Crimes Legislation Amendment Act 2008 (No 53) Schedule 15 by substituting the District Court for the Supreme Court with effect from 1 September 2008 (s 2). 33Section 39(2) in its original form provided for an appeal to the Supreme Court as of right on grounds which would have supported proceedings for prohibition or certiorari. Section 38 which provided that judgments of the court are final and conclusive does not exclude certiorari for error of law on the face of the record: Hockey v Yelland [1984] HCA 72, (1984) 157 CLR 124. 34The 2008 amendment enabled the District Court on appeal to grant all the relief that the Supreme Court could otherwise have granted in proceedings for prohibition or certiorari other than certiorari for error of law on the face of the record. 35The judgment of Garling DCJ on 14 August 2009 conclusively established, subject to possible judicial review, that the decision of the Small Claims Division was not vitiated for lack of jurisdiction or denial of procedural fairness. That decision established issue estoppels, and possibly cause of action estoppels, on these questions which are binding on the parties and this Court. 36The decision of a lower court between the same parties on the same question is binding on a higher court except on appeal or judicial review: Marginson v Blackburn BC [1939] 2 KB 426 CA, 438; Jackson v Goldsmith [1950] HCA 22, 81 CLR 446; Ramsey v Pigram [1968] HCA 34; (1968) 118 CLR 271; Watt (formerly Carter) v Ahsan [2007] UKHL 51, [2008] 1 AC 696. 37That principle was applied in Wishart v Fraser [1941] HCA 8, 64 CLR 470 per Rich ACJ at 476-7, per Starke J at 478, per Dixon J at 482-3, per McTiernan J at 489 and per Williams J at 491. The court held that it could not entertain an appeal from a conviction by a Court of Petty Sessions which had been confirmed on appeal by the Court of Quarter Sessions. Starke J said at 478 that the judgment of Quarter Sessions "holds the field so as long as it stands unreversed, and precludes this Court making any judicial determination to the contrary". Dixon J said at 483: "... we cannot ignore the order of the Court of Quarter Sessions confirming the conviction and ... unless we are satisfied that it was made without jurisdiction and is totally void, we must regard it as conclusive while it stands." 38Sections 38 and 39 permit challenges to a decision of the Small Claims Division in the District Court and the Supreme Court on some grounds, and in the Supreme Court on an additional ground. Consistently with the decision of this Court in Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434, 263 ALR 556 the dismissal of an appeal to the District Court would not bar an application for certiorari in the Supreme Court for error of law on the face of the record. The remedies are cumulative and an aggrieved litigant has no obligation to elect. However, there could be an Anshun estoppel in an appropriate case. 39However, subject to the availability of certiorari for error of law on the face of the record, the decision of Garling DCJ created issue estoppels which bind this Court and prevent it quashing the decision of the Small Claims Division for lack of jurisdiction or denial of procedural fairness. 40I agree with Giles JA that there is no error of law on the face of the record of the District Court, relevantly, the reasons for judgment of Garling DCJ; and there is no error of law on the face of the record of the Small Claims Division. 41I am reluctant to endorse the decision of Giles JA that it is open to this Court, as a matter of discretion, to refuse to entertain a claim for judicial review for lack of jurisdiction or denial of procedural fairness in respect of the decision of the Small Claims Division. This appears to assume that such relief might have been granted. 42The discretion to refuse prerogative relief is properly exercisable where the alternative and superior remedy has not been exercised: Meagher v Stevenson (1993) 40 NSWLR 736. If the alternative remedy has been exercised the better answer is res judicata. 43I agree with the orders proposed by Giles JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2011