Akavi v Bellem
[2023] WASC 41
•24 January 2023, 27 January 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AKAVI -v- BELLEM [2023] WASC 41
CORAM: STRK J
HEARD: 24 & 27 JANUARY 2023
DELIVERED : 24 & 27 JANUARY 2023
PUBLISHED : 17 FEBRUARY 2023
FILE NO/S: CIV 1072 of 2023
MATTER: An application under the Magistrates Court Act 2004 (WA) s 36 for a review order against the Magistrates Court Rockingham Registry
BETWEEN: MAERA JEMMA AKAVI
Applicant
AND
TERRI COURTNEY MARIANNA BELLEM
First Respondent
Catchwords:
Practice and procedure - Application for injunction to stay enforcement pending judicial review - Where applicant applies for review pursuant to s 36 of the Magistrates Court Act 2004 (WA) of a decision made in the Magistrates Court under the Residential Tenancies Act 1987 (WA) - Whether applicant has a prima facie case that at trial may entitle her to relief - Balance of convenience - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application granted on 24 January 2023
Operation of injunction extended on 27 January 2023
Category: B
Representation:
Counsel:
| Applicant | : | D M Benson |
| First Respondent | : | No appearance (24 January 2023) In Person (27 January 2023) |
Solicitors:
| Applicant | : | Clayton Utz |
| First Respondent | : | No appearance (24 January 2023) In Person (27 January 2023) |
Cases referred to in decision:
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Rayney v AW [2009] WASCA 203
Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380
Sawitri v Robson [2019] WASC 82
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Table of Contents
Introduction
Factual background
The evidence
Hearing on 24 January 2023 – submissions and disposition
Next steps
Hearing on 27 January 2023 – submissions and disposition
Conclusion
Schedule A - Orders made on 24 January 2023
Schedule B - Orders made on 27 January 2023
STRK J:
(On 24 and 27 January 2023, orders were made and reasons were delivered extemporaneously, which have been edited from the transcripts for clarity.)
Introduction
The applicant, Maera Jemma Akavi, resides in a property known as 13 Oatlands Vista, Wellard (being Lot 84 on Deposited Plan 42934 on Certificate of Title Volume 2591 Folio 256). The respondent, Terri Courtney Marianna Bellem, is the sole registered proprietor of the Wellard property.
On 15 December 2022, Ms Bellem commenced proceedings pursuant to the Residential Tenancies Act 1987 (WA) in the Magistrates Court at Rockingham, described as RSTN 1237 of 2022, which proceeding concerned Ms Akavi's possession of the Wellard property. Following the grant of orders made in favour of Ms Bellem in the Magistrates Court proceeding, including a property (seizure and delivery) order pursuant to the Civil Judgments Enforcement Act 2004 (WA), Ms Akavi faced imminent eviction from the Wellard property.
On 24 January 2023, an ex parte oral application was made in this court on behalf of Ms Akavi for urgent injunctive relief restraining the execution of the property (seizure and delivery) order. Given the urgency with which the application was made, no affidavit had been deposed by Ms Akavi, and counsel sought leave to read an affidavit sworn by Ms Akavi on 10 January 2023 for the purpose of the Magistrates Court proceeding. Upon hearing counsel for Ms Akavi, who had accepted instructions on short notice and on a pro bono basis, I granted the relief sought on an interim basis. My reasons are set out below and the orders made at the conclusion of the hearing on 24 January 2023 are reproduced as sch A to these reasons.
By the orders made on 24 January 2023, among other things, Ms Akavi was to forthwith commence a foreshadowed proceeding in this court for a review order pursuant to s 36 of the Magistrates Court Act 2004 (WA). On 25 January 2023, a notice of originating motion was presented for filing on behalf of Ms Akavi, which was processed on 27 January 2023. Ms Akavi also filed in the proceeding a chamber summons for injunctive relief, a memorandum pursuant to the Rules of the Supreme Court 1971 (WA) O 59 r 9, and a supporting affidavit deposed by Ms Akavi.
On 27 January 2023, the application for injunctive relief was relisted with the benefit of the papers filed. While Ms Bellem had not yet filed an appearance in this proceeding, she appeared in person and was heard. At the conclusion of the hearing on 27 January 2023, various orders were made, which included an order extending the operation of the injunction until 5.00 pm on 3 February 2023. The orders made at the conclusion of the hearing on 24 January 2023 are reproduced as sch B to these reasons, and set out below are my reasons for the same.
Factual background
The context in which Ms Akavi made an urgent ex parte application for interim injunctive relief on 24 January 2023 was as follows.
Counsel for Ms Akavi appeared before the court at a hearing which commenced at 2.52 pm in circumstances where counsel was approached by Law Access at 1.30 pm enquiring as to whether he would accept instructions to bring an urgent application on behalf of Ms Akavi. Counsel did so with limited instructions.[1]
[1] ts 2 (24 January 2023).
Counsel informed the court that he was instructed that Ms Akavi contributed a significant sum of money to the purchase of the Wellard property, which Ms Akavi understood to have been purchased as a family home. Counsel's instructions were that despite Ms Akavi's monetary contribution, the Wellard property was registered solely in Ms Bellem's name and Ms Bellem now asserts that Ms Akavi occupies the Wellard property as a tenant.
The court was informed that the Magistrates Court proceeding was commenced by Ms Bellem against Ms Akavi, in which Ms Bellem obtained orders in her favour on 3 January 2023. At the hearing on 24 January 2023, counsel produced to the court a copy of the order made in the Magistrates Court proceeding on 3 January 2023, which record that on the application of Ms Bellem made on 15 December 2022, it was ordered that:[2]
1.The Tenancy Agreement for rented premises shall terminate as from 10 January 2023 and the Tenant shall deliver up possession of the said premises as from that date.
2.Judgment for the lessor in the sum of $74.50 being the costs of the application.
[2] A copy of the orders made in the Magistrates Court proceeding are now attached to the affidavit of MJ Akavi sworn 25 January 2023, MJA-6.
In the order the reference to 'the Tenant' was a reference to Ms Akavi (who had been known as Maera Jemma Bellem and was so described in the Magistrates Court proceeding);[3] and the reference to the 'said premises' was a reference to the Wellard property (which was also described in the order as the rented premises). I understood that the order had been made by a registrar of the Magistrates Court.
[3] ts 3 (24 January 2023).
Ms Akavi deposed that she did not receive notice of the hearing of Ms Bellem's application before the Magistrates Court until the afternoon of 3 January 2023, after the hearing had proceeded at 9.30 am.[4] Ms Akavi deposed that the hearing had taken place by the time she received notice of the same.
[4] Affidavit of MJ Akavi sworn 10 January 2023, now attached to the affidavit of MJ Akavi sworn 25 January 2023, MJA-9.
Counsel informed the court that after securing orders in her favour on 3 January 2023, Ms Bellem secured from the Magistrates Court a property (seizure and delivery) order, which the Bailiff delegate in Rockingham intended to execute at 3.30 pm on 24 January 2023. By the property (seizure and delivery) order, the Sheriff of Western Australia and the Bailiff delegate at Rockingham were authorised and commanded to enter the Wellard property, with force if necessary, evict persons not entitled to be there, take possession of the Wellard property and deliver it to Ms Bellem's possession (Ms Bellem being the judgment beneficiary).[5]
[5] A copy of the property (seizure and delivery order) is now attached to the affidavit of MJ Akavi sworn 25 January 2023, MJA-10.
Counsel informed the court that on or about 23 January 2023, a notice of intention to deliver property to lawful owner was left at the Wellard property which stated that all persons must have vacated the Wellard property by 24 January 2023 at 3.30 pm or be evicted.[6] It was the imminent execution of the property (seizure and delivery) order which made the application to this court on the afternoon of 24 January 2023 urgent.
[6] Affidavit of MJ Akavi sworn 25 January 2023 par 31, MJA-13.
Counsel further informed the court that on 10 January 2023 Ms Akavi had commenced an appeal in the Magistrates Court in relation to the orders made on 3 January 2023, and had also filed an application for the stay of the property (seizure and delivery) order pursuant to the Civil Judgments Enforcement Act.[7] However, both applications had been listed for hearing after the proposed execution of the property (seizure and delivery) order on 24 January 2023.
[7] A copy of the Form 1B (appeal against registrar's decision) and the form 9 (application for suspension order) are now annexed to the affidavit of MJ Akavi sworn 25 January 2023, MJA-7 and MJA-8.
On 13 January 2023, a notice was issued by the Magistrates Court listing Ms Akavi's appeal for hearing on Thursday, 2 February 2023 at 10.00 am.[8] On 19 January 2023, a letter was issued by the Magistrates Court listing Ms Akavi's application for a suspension order for hearing on 31 January 2023 at 9.30 am.[9]
[8] Affidavit of MJ Akavi sworn 25 January 2023 par 29, MJA-11.
[9] Affidavit of MJ Akavi sworn 25 January 2023 par 30, MJA-12.
Counsel pressed for urgent injunctive relief on 24 January 2023 on the basis that an application for a review order pursuant to s 36 of the Magistrates Court Act would be made on grounds which would include the failure to give Ms Akavi prior notice of the hearing before the Magistrates Court on 3 January 2023, denying Ms Akavi procedural fairness.
The evidence
As noted above, at the hearing on 24 January 2023 counsel sought leave to read and rely upon the affidavit sworn by Ms Akavi for the purpose of the Magistrates Court proceeding on 10 January 2023.[10]
[10] ts 2 (24 January 2023).
By her first affidavit Ms Akavi deposed to, among other things, Ms Bellem being her daughter; to having received two termination notices and to not having vacated the Wellard property as demanded in the notices; to being unaware Ms Bellem had applied to the Magistrates Court to evict her from the Wellard property until she received a notice of the hearing of that application on the afternoon of 3 January 2023, after the time for the hearing had passed; to her intention to dispute Ms Bellem's claim for possession of the Wellard property; to the circumstances surrounding the purchase of the Wellard property in 2011, including Ms Akavi having contributed $180,000 as a deposit to the purchase of the Wellard property; to Ms Bellem being registered as the sole registered proprietor of the Wellard property; to having resided at the Wellard property since purchase with Ms Akavi's son and Ms Bellem, with Ms Bellem leaving the Wellard property around 2012; to having paid to Ms Bellem from 2012 to September 2022 the cost of the fortnightly mortgage repayments for the Wellard property; to her understanding that her residence at the Wellard property was an informal family arrangement and to there having been no discussions had between Ms Akavi and Ms Bellem that the arrangement by which Ms Akavi resided in the Wellard property was pursuant to a tenancy agreement; and to Ms Akavi's health and financial position.
Following the grant of injunctive relief and upon filing the originating motion and chamber summons, Ms Akavi swore a second affidavit in support of the continued operation of the injunction. Ms Akavi's second affidavit was sworn on 25 January 2023, to which she attached documents marked MJA‑1 to MJA‑13.
In her second affidavit, Ms Akavi repeated and expanded upon matters deposed in her first affidavit. Ms Akavi's evidence included her explanation of the basis upon which she says that she is entitled to continue to reside in the Wellard property.
At pars 21 and 22 of Ms Akavi's second affidavit, she deposed as follows:
Notices of Termination and Application for Court Order
21.In August of 2021 and October of 2022, Terri issued me with two Notices of Termination. I ignored the Notices because Terri and I had never spoken about the living arrangement at the Property as though it was a tenancy agreement, nor was it ever treated as one. I did not consider the fortnightly mortgage payments to be rental payments.
22. On the afternoon of 3 January 2023, I received a Notice of Hearing in the mail, which stated that a hearing had been listed for 9:30am that same day, together with an Application for Court Order under the Residential Tenancies Act 1987 (WA) (Residential Tenancies Act), which I understood was an application to evict me from the Property. Both documents were dated 15 December 2022. Attached and marked:
(a) 'MJA-4' is a true copy of the Application for Court Order dated 15 December 2022; and
(b) 'MJA-5' is a true copy of the Notice of Hearing dated 15 December 2022.
In her second affidavit, Ms Akavi deposed to further matters which inform the balance of convenience, including the following:
Background
5.I currently live alone at the Property. My daughter, Terri Courtney Marianna Bellem (Terri) is the sole registered proprietor on the certificate of title for the Property.
…
34.I am currently recovering from treatment for breast cancer. I also have chronic fibromyalgia with widespread pain, depression and anxiety.
35.I have a limited income, do not have anywhere else to go, and am extremely distressed at the prospect of being evicted to homelessness.
36.If I am evicted to homelessness, my health status and treatment options will be severely impacted.
Hearing on 24 January 2023 – submissions and disposition
As noted above, shortly prior to 3.30 pm on the afternoon of 24 January 2023, through counsel acting on short notice and pro bono, Ms Akavi sought and obtained from this court urgent interim injunctive relief.
At the hearing, counsel for Ms Akavi detailed the circumstances of the purchase of the Wellard property, Ms Akavi's equitable interest in the Wellard property, and the status of the Magistrates Court proceeding. Counsel also outlined Ms Akavi's personal circumstances including her recent health struggles and financial position.[11]
[11] ts 4 - 5 (24 January 2023).
Counsel submitted that in the circumstances the court should be minded to grant injunctive relief pursuant to O 52 of the Rules of the Supreme Court restraining execution of the property (seizure and delivery) order, or alternatively stay of the property (seizure and delivery) order pending the hearing of an application for a review order to be made to this court. Counsel emphasised the urgency of the application and the potential prejudice to Ms Akavi if urgent relief was not granted.[12]
[12] ts 5, 6 - 7 (24 January 2023).
While I accepted that an order suspending the enforcement of a judgment could include an ancillary order as to the operation of a property (seizure and delivery) order,[13] I was not prepared to grant an order suspending the enforcement of the judgment in favour of Ms Bellem granted by the Magistrates Court pursuant to the Civil Judgments Enforcement Act. In circumstances where this court was neither the court that gave the judgment, nor the court dealing with an appeal against judgment, I proceeded on the basis that this court did not have the power under s 15 of the Civil Judgments Enforcement Act to grant a suspension order.[14]
[13] Civil Judgments Enforcement Act s 15(5)(c).
[14] Civil Judgments Enforcement Act s 15(1).
However, I understood that Ms Bellem had secured orders on 3 January 2023 pursuant to the Residential Tenancies Act in circumstances where Ms Akavi deposed that such orders were secured without her having prior notice of the same denying her the opportunity to be heard. Further, she complained that a property (seizure and delivery) order had been granted on the same day as her appeal had been filed and before it could be determined; and the property (seizure and delivery) order was to be executed before her application for a stay could be determined.
The principles governing the grant of interlocutory injunctive relief are well established and were summarised by Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [13], Newnes JA (with whom McLure P and Corboy J agreed) in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87], and the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36 [130] ‑ [131]. In short, it is necessary for the applicant for relief to show that there exists a serious question to be tried, or a prima facie case, and that the balance of convenience favours the grant of an injunction.
On the documents before me at the first court hearing, I was satisfied that Ms Akavi had made out a prime facie case for relief pursuant to s 36 of the Magistrates Court Act. That is, I was satisfied that there was a serious question to be tried in the sense that if the evidence were to remain as it was, there was a probability that at the conclusion of the substantive hearing of the foreshadowed review order application, Ms Akavi would be entitled to relief. With the threat of imminent eviction, I was also satisfied that the balance of convenience favoured the grant of interim relief.
At the hearing on 24 January 2023, counsel indicated that Ms Akavi was prepared to file an undertaking as to damages in the usual form.[15] After hearing counsel's submissions, the interim orders reproduced at sch A to these reasons were made at about 3.30 pm on 24 January 2023. I was prepared to grant interim interlocutory injunctive relief in the form promoted as a means of protecting Ms Akavi's right in the foreshadowed proceeding for a review under s 36 of the Magistrates Court Act. I considered it appropriate in all of the circumstances to make it a condition of the operation of the interim order that Ms Akavi file an undertaking as to damages by 10.00 am on 25 January 2022 in the usual form; and to order that Ms Akavi file forthwith an application for a review of a decision of the Magistrates Court pursuant to s 36 of the Magistrates Court Act. The application for injunctive relief was otherwise adjourned to 10.00 am on 27 January 2023 on the understanding that Ms Bellem would be served with papers in the intervening period.
[15] ts 7 - 8 (24 January 2023).
Next steps
In compliance with order 3 of the orders made on 24 January 2023, a notice of originating motion was presented for filing by which Ms Akavi applied pursuant to the Magistrates Court Act s 36 for an order in the following terms:
1.That Registrar Anne-Marie Algefski, Terri Courtney Marianna Bellem, the Sheriff of Western Australia and the Bailiff Delegate at Rockingham satisfy the Supreme Court at a hearing that the orders made in Magistrates Court of Western Australia Proceeding No. ROC/RSTN/1237/2022 on 3 January 2023 (Orders) and the Property (Seizure and Delivery) Order (PSDO) made in that same proceeding on 11 January 2023, which Orders and [PSDO] concern the property known as 13 Oatlands Vista, Wellard in the State of Western Australia (being Lot 84 on Deposited Plan 42934 on Certificate of Title Volume 2591 Folio 256) (Property) should not be set aside.
The grounds of the application were described in the originating motion in the following terms:
And further take notice that the grounds of this application are that the Orders and the [PSDO] were made on grounds that justify an order of certiorari, in circumstances in which:
1.the Applicant did not receive a Notice of Hearing in relation to Terri Courtney Marianna Bellem's application for an order pursuant to the Residential Tenancies Act 1987 (WA) in Magistrates Court of Western Australia Proceeding No. ROC/RSTN/1237/2022 until the afternoon of 3 January 2023, after the scheduled hearing had proceeded on the same day at 9.30am;
2.at the above-mentioned hearing, orders were made in the Applicant's absence that:
(a)the alleged tenancy agreement be terminated as from 10 January 2023;
(b)vacant possession of the premises are to be delivered up from that date; and
(c)judgment for the Lessor be made in the sum of $74.50;
3.on 10 January 2022, the Applicant filed an appeal against the judgment referred to in paragraph 1 herein and filed an application for an order to suspend the enforcement of all or part of that judgment;
4.despite the filing of the appeal and the application for suspension, the [PSDO] was granted on 11 January 2023, upon application by Terri Courtney Marianna Bellem that same day;
5.on 13 January 2023, a Notice of Hearing was issued by the Magistrates Court of Western Australia listing the Applicant's appeal for a hearing in the Magistrates Court of Rockingham on Thursday, 2 February 2023 at 10am;
6.on 19 January 2023, a letter was issued by the Magistrates Court of Western Australia listing the Applicant's application for a suspension order for a hearing at the Magistrates Court of Rockingham on 31 January 2023 at 9.30am; and
7.on or about 23 January 2023, a Notice of Intention to Deliver Property to Lawful Owner was left at the Property which stated that all persons must have vacated the premises by 24 January 2023 at 3.30pm or be evicted.
In compliance with order 2 of the orders made on 24 January 2023, an undertaking as to damages was presented for filing by Ms Akavi on 24 January 2023.
Hearing on 27 January 2023 – submissions and disposition
Ms Akavi's application for injunctive relief was relisted on 27 January 2023. Although Ms Bellem had not filed an appearance as at the hearing, she attended court and was heard, and at the conclusion of the hearing, she filed an appearance in person.
On behalf of Ms Akavi, counsel sought the continued operation of the injunction granted on 24 January 2023 until 3 February 2023. Among other things, counsel informed the court that Ms Akavi's appeal in the Magistrates Court and application for a suspension order might be heard in the intervening period, alternatively abandoned in favour of Ms Akavi solely pursuing relief by way of a review order pursuant to s 36 of the Magistrates Court Act, and a decision had not yet been made in this regard.[16] Counsel was also content for the injunction to be adjourned to 3 February 2023 on an interim basis, affording Ms Bellem an opportunity to take advice and then, if she considered appropriate, oppose the operation of the injunction beyond 3 February 2023.[17]
[16] ts 3, 8 - 9 (27 January 2023).
[17] ts 4 (27 January 2023).
There are very limited rights of review in respect of orders made by the Magistrates Court under the Residential Tenancies Act. If an order is made by a registrar, it can be appealed to a magistrate.[18] As to Ms Akavi seeking relief in this court, counsel referred to s 26 of the Residential Tenancies Act which provides for the finality of proceedings in the following terms:
26.Finality of proceedings
(1)An order made by a court under this Act is final and binding on all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof.
(2)No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.
(3)This section applies despite Part 7 of the Magistrates Court (Civil Proceedings) Act 2004.
[18] Residential Tenancies Act s 13B.
Counsel noted that pursuant to s 26 of the Residential Tenancies Act, this court's jurisdiction under s 36 of the Magistrates Court Act is effectively limited to scenarios where the Magistrates Court does not have jurisdiction, or alternatively there has been a denial of natural justice. In this regard, counsel submitted that Ms Akavi sought relief in the proceeding commenced in this court on the basis that she had not been given prior notice of the hearing before the Magistrates Court on 3 January 2023 and had been denied natural justice. Further, counsel submitted that there arose the question of whether the Magistrates Court at Rockingham indeed had jurisdiction to make orders on 3 January 2023 in circumstances where Ms Akavi maintained that there was, in fact, no residential tenancy agreement as between Ms Akavi and Ms Bellem in respect of the Wellard property.[19]
[19] ts 3 - 5 (27 January 2023).
During the course of the hearing on 27 January 2023, there was a short adjournment so as to allow conferral as between counsel for Ms Akavi and Ms Bellem to occur. I also suggested that the parties give some consideration to whether they might seek that the court refer this matter to mediation.[20]
[20] ts 9, 20 (27 January 2023).
Upon the hearing being recalled, Ms Bellem indicated that she would not oppose the extension of the interim injunction until 3 February 2023 as was proposed by counsel for Ms Akavi.[21]
[21] ts 7, 10 (27 January 2023).
During the course of the hearing on 27 January 2023, counsel addressed the appropriateness of this court extending the operation of the injunction in circumstances where before this court Ms Akavi had applied for a review order pursuant to s 36 of the Magistrates Court Act, but her appeal in the Magistrates Court and application for a suspension order remained on foot. In this regard, counsel referred to and read from the decision of Fiannaca J of Sawitri v Robson [2019] WASC 82, and counsel made the following observations in relation to his Honour's decision to extend the operation of an injunction:[22]
(a)the circumstances of this proceeding are similar in nature to those described in Sawitri v Robinson. An order was made in the Magistrates Court in circumstances were it was alleged that notice had not been given, a property (seizure and delivery) order was then made, and an urgent injunction application was made to this court which was granted on an interim basis;
(b)Fiannaca J raised the possibility that concurrent pursuit of an appeal in the Magistrates Court and review application in this court may constitute an abuse of process, but his Honour also recognised that in circumstances where an application for the suspension of a property (seizure and delivery) order had been made, that application would be frustrated if the order were enforced prior to the hearing of the suspension application; and
(c)Fiannaca J observed that it would not be appropriate to decide the question of whether the review application in this court was an abuse of process when determining the extension of an interim interlocutory injunction, but it was an issue relevant to the assessment of the balance of convenience in the determination of the extension of interim injunctive relief.
[22] ts 4, 13 - 15 (27 January 2023), counsel referring to Sawitri v Robinson [70] ‑ [71], [92] ‑ [93].
Counsel for Ms Akavi submitted that the circumstances deposed to by Ms Akavi dictated that the balance of convenience was such that the injunctive relief granted on 24 January 2023 ought be extended.[23]
[23] ts 15 - 16 (27 January 2023).
After hearing counsel for Ms Akavi and considering Ms Bellem's position, I determined it to be appropriate to extend the operation of the injunction until 3 February 2023, having weighed in the following in the balance.
Again, I proceeded on the basis that it was necessary for the applicant for injunctive relief to show that there existed a serious question to be tried, or a prima facie case, and that the balance of convenience favoured the grant of an injunction.
Again, I was cognisant that a review order can only be made if the applicant establishes an arguable case that an error of the type identified in s 36(1) of the Magistrates Court Act was made. The relevant classes of error include the making of an order without jurisdiction or power: s 36(1)(c)(i); and the making of an order on any ground that might have justified an order of certiorari: s 36(1)(c)(ii). An arguable case means one that has reasonable prospects of success. The error must be either a jurisdictional error or an error of law on the face of the record to fall within s 36(1),[24] and the grant of relief is pre‑conditioned upon establishing a reviewable error under s 36(1).[25]
[24] Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380 [7] (Archer J).
[25] Rayney v AW [2009] WASCA 203 [31] (McLure JA, Buss & Newnes JJA agreeing).
Arguably, an order made under the Residential Tenancies Act will have been made without jurisdiction or in circumstances that might have justified an order of certiorari (for the purposes of s 36 of the Magistrates Court Act) if the procedural pre‑conditions for the making of the order were not met, or the respondent was denied natural justice. As noted in the grounds stated in the originating motion at pars 1 and 2 (reproduced at [32] above), Ms Akavi contends that she did not receive notice of the hearing on 3 January 2023, at which hearing it was ordered, among other things, that she deliver up possession of the Wellard property. I understand Ms Akavi to complain that there was a denial of natural justice sufficient to ground a reviewable error under s 36(1).
I note that s 18 of the Residential Tenancies Act provides as follows:
18.Form of applications and notice of hearing
(1) Any application under this Act shall —
(a) be made in writing in a form approved by the Minister; and
(b) be accompanied by the prescribed fee (if any).
(2) Before a competent court hears an application the court shall —
(a) give to the applicant notice in writing setting out the time and place of the hearing; and
(b) give to any other party —
(i) notice in writing setting out the time and place of the hearing; and
(ii) such notice of the nature of the application as is required by rules of court or directed by the court in a particular case.
On the documents before me, on 27 January 2023 I was again satisfied that Ms Akavi had made out a prime facie case for relief pursuant to s 36 of the Magistrates Court Act. That is, I was satisfied that there was a serious question to be tried in the sense that if the evidence were to remain as it was, there was a probability that at the conclusion of the substantive hearing of the review order application, Ms Akavi would be entitled to relief. Of course, the question of whether a procedural pre‑condition was not met and whether natural justice was denied will need to be determined at a substantive hearing of the application for review.
I was also satisfied that the balance of convenience continued to favour the short extension of the operation of the injunction until 5.00 pm on 3 February 2023, subject to any further order of the court. In this regard, I weighed in the balance the matters deposed to by Ms Akavi in her second affidavit at pars 5 and 34 to 36 (reproduced at [22] above).
The orders reproduced at sch B to these reasons were made on 27 January 2023. Again, I was prepared to extend the operation of the injunction as a means of protecting Ms Akavi's right in this proceeding for a review under s 36 of the Magistrates Court Act. In circumstances where Ms Akavi had not yet decided whether to pursue relief in the Magistrates Court, alternatively review in this proceeding,[26] I proceeded on the basis that it was not inappropriate to extend the operation of the interim injunction until 3 February 2023.
[26] ts 3, 8 ‑ 9 (27 January 2023), as discussed at [35] above.
Conclusion
For these reasons, urgent interim injunctive relief was granted in favour of Ms Akavi on 24 January 2023, and subject to further order of the court, the operation of the injunction was extended to 5.00 pm on 3 February 2023. The costs of Ms Akavi's application for injunctive relief, including the costs of the hearings on 24 and 27 January 2023 remain reserved.
Schedule A - Orders made on 24 January 2023
Schedule B - Orders made on 27 January 2023
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LP
Associate to the Honourable Justice Strk
17 FEBRUARY 2023
0
6
4