BAJAJ
[2024] WASCA 149
•22 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BAJAJ [2024] WASCA 149
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 22 NOVEMBER 2024
DELIVERED : 22 NOVEMBER 2024
PUBLISHED : 22 NOVEMBER 2024
FILE NO/S: CACV 53 of 2024
BETWEEN: RAMESH BAJAJ
Appellant
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SEAWARD J
Citation: RE MAGISTRATE OWEN-CONWAY; EX PARTE BAJAJ [2024] WASC 333
File Number : CIV 2004 of 2024
Catchwords:
Appeal - Practice and procedure - Application for leave to appeal - Application for stay of listing and programming orders in relation to compensation application made under Residential Tenancies Act 1987 (WA) - Application for leave to appeal dismissed where appeal had no reasonable prospects of success - Application for stay of listing and programming orders dismissed
Appeal against dismissal of application for review order pursuant to s 36 of Magistrates Court Act 2004 (WA) - Where primary judge said to have misconstrued, misinterpreted or misapprehended submissions of appellant - Appeal dismissed - Turns on own facts
Legislation:
Magistrates Court Act 2004 (WA), s 36
Result:
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
Solicitors:
| Appellant | : | In person |
Case(s) referred to in decision(s):
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Rayney v AW [2009] WASCA 203
Re Hogan; Ex parte Western Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288
Re Magistrate Owen-Conway; Ex parte Bajaj [2024] WASC 333
REASONS OF THE COURT:
Overview
This appeal came before the court on 22 November 2024 pursuant to a registrar's notice to attend dated 4 October 2024 to consider the appellant's application for leave to appeal and the appellant's application in an appeal dated 27 September 2024.
The appellant sought leave to appeal against orders made in the General Division by Seaward J on 11 September 2024 dismissing the appellant's application for a review order pursuant to s 36 of the Magistrates Court Act 2004 (WA) and his associated application for a stay in relation to certain orders made by the Magistrates Court on 31 July 2024. Her Honour provided written reasons for those orders: Re Magistrate Owen-Conway; Ex parte Bajaj.[1] The Magistrates Court orders the subject of the application for review relevantly provided for the listing and programming for trial of a compensation claim against the appellant. The appellant's application in an appeal dated 27 September 2024 was largely, but not exclusively, directed to seeking a stay of the Magistrates Court orders pending the hearing of the appeal.
[1] Re Magistrate Owen-Conway; Ex parte Bajaj [2024] WASC 333 (primary reasons).
After considering the appellant's written and oral submissions we refused leave to appeal. It followed that the appellant's application in an appeal dated 27 September 2024 had to be dismissed. We said that we would provide written reasons for our decision. These are our reasons for the orders of the court made 22 November 2024.
Background
The appellant is the owner of a residential property in Shenton Park. He rented that property to three tenants pursuant to a residential tenancy agreement dated 26 July 2023. In July 2024 the appellant and the tenants filed competing applications under the Residential Tenancies Act 1987 (WA) (RTA) in the Magistrates Court. Those applications came before Magistrate Owen‑Conway on 31 July 2024. The magistrate made orders in each matter acknowledging the termination of the residential tenancy agreement. Also, in the tenants' application, the magistrate ordered that a compensation claim on the part of the tenants be listed and programmed for trial.
The primary judge's reasons provide a detailed exposition of:
1.The competing applications in the Magistrates Court [8] - [9].
2.The hearing on 31 July 2024 [10] - [16].
3.The orders made on the applications [18] - [21].
The tenants had already vacated the property by the time of the hearing [11]. Accordingly, the magistrate concluded that the residential tenancy agreement had terminated pursuant to s 60(1)(a)(i) of the RTA [12]. The magistrate made an order acknowledging that in the appellant's application and otherwise dismissed the application [18]. There was also an order made on the tenants' application that acknowledged the termination of the residential tenancy agreement [20]. That order was not challenged before the primary judge [20]. Nor was it sought to challenge that order in this court. The appellant's sole complaint was as to the magistrate's additional orders that the tenants' claim for compensation be listed for trial and various consequential orders programming the matter for trial [21]. We will refer to these as the 'listing and programming orders'.
The primary judge's decision
The appellant invoked s 36 of the Magistrates Court Act seeking an order that the listing and programming orders be set aside on the ground of jurisdictional error [23]. This was put in two ways:
1.The magistrate had no jurisdiction to make the listing and programming orders as in ordering the termination of the residential tenancy agreement the magistrate had made a determination that the tenants' breaches, as alleged by the appellant, had been established and the appellant's alleged breaches, as alleged by the tenants, had been rejected [26].
2.The magistrate had made a jurisdictional error in failing to consider whether an abuse of process would be occurring if the tenants' compensation claim was programmed to trial [27].
The primary judge considered the applicable legal principles for a review order under s 36 of the Magistrates Court Act in orthodox terms [28] - [33]. Her Honour then turned to the terms of the RTA [35] ‑ [49]. In that respect it ought to be observed that s 60(1)(a) of the RTA provides for termination in the circumstance:
where the lessor or tenant gives notice of termination under this Act and:
(i)the tenant delivers up vacant possession of the premises on or after the expiration of the period of notice required under this Act[.]
This form of termination does not require termination by order of the court. Rather, as the magistrate recognised, termination occurs by action being taken conformably with s 60(1)(a)(i) of the RTA. Hence why the magistrate's orders in the competing applications simply acknowledged the fact of the termination of the residential tenancy agreement and did not themselves provide for termination.
The primary judge then considered whether the appellant had established an arguable case of jurisdictional error in relation to the listing and programming orders. The primary judge was not satisfied that the appellant demonstrated an arguable case of jurisdictional error [68].
First, the primary judge was not satisfied that the appellant had established an arguable case on the ground that the magistrate had no jurisdiction to make the orders [50]. The primary judge reasoned that:
1.The magistrate did not make any ruling to the effect of that contended for by the appellant, namely, that the appellant had not breached the residential tenancy agreement [51] - [56].
2.It was not the case that the magistrate did not have jurisdiction to hear the compensation claim or to hear it as a minor case claim [57] - [61].
The primary judge concluded that:
[The appellant] has not established an arguable case that the learned Magistrate did not have jurisdiction to make [the listing and programming orders]. The Magistrate had jurisdiction to hear and programme the tenants' compensation claim pursuant to s 15 and s 12A of [the RTA]. Order 1 in both the tenants' application and [the appellant's] application does not create an Anshun estoppel; or constitute a final disposition of the tenants' compensation claim; or in any way remove or alter the Magistrate's jurisdiction [62].
Second, the primary judge was not satisfied that the appellant had established an arguable case in relation to the ground for review concerning an abuse of process. That ground was premised on the assertion that the magistrate lacked jurisdiction. However, the primary judge had concluded to the contrary. The ground was also premised on an assertion that the magistrate did not consider whether she had jurisdiction. The primary judge did not accept that submission. Finally, so far as the appellant asserted that the magistrate did not consider whether in all the circumstances proceeding to hear and determine the tenants' compensation claim constituted an abuse of process, the primary judge again did not accept the appellant's submission. The primary judge observed that the transcript revealed that the appellant submitted to the magistrate that the compensation claim should be struck out as an abuse of process and that the magistrate did not accept that submission [63] - [67].
The primary judge stated that there was no basis to order a stay of the listing and programming orders so far as she declined to make a review order [69]. Before this court the appellant sought to make something of the circumstance that the primary judge dealt with the application for the review order before addressing the application for a stay. There is no merit in that complaint. There was simply no basis for a stay if the review order was to be dismissed. It was plainly open to the primary judge to deal first with the application for a review order and then, based on the outcome of the application for a review order, consider the stay application.
Leave to appeal: applicable principles
The appellant accepted, consistently with authority, that any appeal against the primary judge's orders dismissing the application for a review order and a stay order in relation to the listing and programming orders required leave to appeal: Re Hogan; Ex parte Western Australian Newspapers Ltd[2] and Bajaj v Magistrate Trevor Darge.[3]
[2] Re Hogan; Ex parte Western Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288[7] ‑ [8], [48], [53].
[3] Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [3].
The principles that apply on an application for leave to appeal are well established. For present purposes it is sufficient to adopt, without repeating, what was said by this court in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[4]
[4] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] - [118].
In summary, where leave to appeal is necessary, leave may be granted whenever the interests of justice require the grant of such leave. Ordinarily, while not being rigid or exhaustive criteria, two main considerations are taken into account. First, whether the decision is wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered. Second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong.
The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected. Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.
Leave to appeal: the basis for the appellant's application
There are five proposed grounds of appeal. They are best read in full. Accordingly, we have reproduced them in the annexure to these reasons. In substance, however, the appellant asserts that the primary judge misconstrued, misinterpreted or misapprehended his oral and written submissions.
While there are five grounds they are repetitive. Ground 1 challenges the primary judge's recitation of the appellant's argument based on lack of jurisdiction (at primary reasons [26]) which is then addressed by her Honour at primary reasons [50] - [62] (this being the subject of ground 3). Ground 2 challenges the primary judge's recitation of the appellant's argument based on abuse of process (at primary reasons [27]) which is then addressed by her Honour at primary reasons [63] ‑ [67] (this being the subject of ground 4). And ground 5 challenges the primary judge's overall conclusion that there is no arguable case of jurisdictional error at primary reasons [68] (and thus the consequential decision to refuse the stay at primary reasons [69]). So understood the proposed grounds of appeal reduce to grounds 1 and 2.
It is noteworthy that nowhere in the grounds of appeal is there any clear statement by the appellant of how the primary judge misconstrued, misinterpreted or misapprehended his oral and written submissions. There is no clear statement of what it is that the primary judge should have considered and determined in place of what in fact was considered and determined by her Honour. The appellant does no more than assert that the primary judge misunderstood his case with a resultant miscarriage of justice and failure of the judicial function to control the Magistrates Court so far as it proposed to act outside its statutory jurisdiction.
The appellant's written submissions are difficult to understand. They do not, however, remedy the omission to identify how the primary judge is said to have failed to have considered and determined the appellant's case. In that respect the appellant's written submissions do not support the proposed grounds of appeal. For completeness, however, we will now refer to the substance of what can be gleaned from the appellant's written submissions and briefly address those matters as raised by the appellant.
The appellant's submissions in support of the application for leave to appeal
In his appellant's case the appellant advanced a number of submissions in support of proposed ground 1. Initially the appellant submitted that the primary judge erred in not being satisfied that there was an arguable case to make a review order (par 1.1). This submission does not rise above assertion. Nor does it suggest how, if at all, the primary judge failed to consider and determine the case being advanced by the appellant.
Next the appellant submitted that the court has power to grant a review order whether or not a specific ground of reviewable error is alleged or relied on by an applicant (par 1.3).
This submission exceeds the scope of proposed ground 1. It may, however, be accepted as being correct as a matter of law so far as this court has held that the expression 'that is just' in s 36(3) of the Magistrates Court Act means that the court has the power to grant a review order whether or not a specific ground of reviewable error has been relied on by the applicant: Rayney v AW.[5] But the mere acceptance of the appellant's proposition as a matter of law does not mean that the primary judge was in error (or was arguably in error) in refusing a review order under s 36 of the Magistrates Court Act in the circumstances of the present case. The present case is one where the primary judge found that the appellant, as the applicant for the review order, failed to establish, in terms of s 26(2) of the RTA, an arguable case that the Magistrates Court had or has no jurisdiction conferred by or under the RTA in respect of the proceedings or that he had been denied natural justice. It is necessary for the appellant to establish that this conclusion is wrong - or, at the least, that there is sufficient doubt as to the position so as to warrant reconsideration of the primary judge's decision.
[5] Rayney v AW [2009] WASCA 203 [31].
The appellant also submitted that he had argued that there was jurisdictional error on the part of the magistrate. As such it was said to follow, without more, that the primary judge had the power to make a review order and to stay the listing and programming orders (par 1.4). This submission involves a fundamental misconception. It is well established that:
The threshold for determining whether a review order should be made has sometimes been expressed as demonstration of an arguable case and sometimes as a case with a reasonable prospect of success: Bajaj v Magistrate Trevor Darge [48].
Accordingly, an applicant for a review order must establish, at least, an arguable case of error of a kind capable of grounding a review order under s 36 of the Magistrates Court Act - the 'arguable case' must be one that has reasonable prospects of success.
Finally in terms of proposed ground 1, the appellant submitted that there had been no actual hearing on the matter such that he had been denied the 'fundamental right' to present his case (par 1.5). This submission exceeds the scope of proposed ground 1. In any event it is without merit. We have considered the 61-page transcript of the hearing before the primary judge. The appellant was afforded a fulsome hearing that lasted a little over two hours. There is no reasonable prospect of the appellant succeeding on a contention that he was not afforded procedural fairness by being denied a hearing.
We observe that we have omitted reference to parts of the appellant's written submissions in support of proposed ground 1 so far as the remainder of the submissions do no more than raise irrelevancies or refer to trite propositions of law.
As to proposed ground 2, the appellant's written submission simply stated '[a]rguments on ground 3' (par 2.2). There is, however, nothing in the written submissions that addresses proposed ground 3. As to proposed ground 4, the appellant submitted that:
1.The tenants commenced the compensation claim to seek a collateral advantage beyond what the law offered (par 4.1). This, self-evidently, does not identify any error in the primary judge's reasons; it is no more than assertion without analysis.
2.The Magistrates Court failed to use its inherent power to protect its process (par 4.2). Again, this is mere assertion that does not suggest error on the part of the primary judge.
On proposed ground 5, the appellant's written submissions raised the following:
1.The maintenance of the tenants' compensation claim disregarded the jurisdiction or authority of the Magistrates Court given the decision on termination under s 60(1)(a)(i) (par 5.1). This, in substance, reagitated the first argument raised before the primary judge. We deal with this below (see [37]).
2.The appellant was entitled to enforce the Magistrates Court's orders as to termination of the residential tenancy agreement (par 5.2). However, there should be a stay of the listing and programming orders as otherwise the appellant's appeal right would be rendered nugatory (pars 5.1, 5.2). This is relevant to the appellant's application in an appeal dated 27 September 2024 (see [40] - [43] below). But it does not assist the appellant in establishing error, or arguable error, in the primary judge's decision.
3.A question arose as to the independence and impartiality of the primary judge (pars 5.3, 5.4). This plainly exceeded the scope of the proposed ground. As such it must be put aside.
Otherwise the appellant's written submissions failed to address why there should be leave to appeal. In particular, the appellant did not address how, if at all, substantial injustice would result if the listing and programming orders were to remain on foot.
The appellant's oral submissions were not directed to the proposed grounds of appeal save that, at the conclusion of his oral address, the appellant read out the proposed grounds of appeal with minor inconsequential amendments. Nor were the appellant's oral submissions directed to the applicable principles on which this court considers whether to grant leave to appeal. In the circumstances it is not necessary to attempt to summarise the disparate strands of the appellant's oral submissions to the court.
Leave to appeal: disposition
The appellant's written submissions filed as part of his appellant's case do not support the proposed grounds of appeal. We have, however, reviewed the transcript of the hearing before the primary judge as well as the written submissions that were before the primary judge. It is not easy to discern with precision the points being articulated by the appellant throughout the course of his oral address to the primary judge. Nor do the written submissions provide a clear and coherent pathway explaining the appellant's argument in support of the s 36 review order. We are, however, satisfied that the primary judge encapsulated the essence of the argument being advanced by the appellant in the summary that her Honour provided at primary reasons [26] and [27]. We are unable to identify any respect in which the primary judge arguably misconstrued, misinterpreted or misapprehended the appellant's submissions in his case for the s 36 review order.
If, in some way, the primary judge had misconstrued, misinterpreted or misapprehended the nature of the appellant's case for a s 36 review order, it might have been expected that the appellant would have identified - with precision - how this was so in his grounds of appeal or in his written submissions in support of the grounds of appeal in the appellant's case. It is noteworthy that the appellant did not even attempt to do so in his oral submissions to this court.
In the circumstances none of the proposed grounds of appeal had a reasonable prospect of succeeding.
Separately, to the extent that - outside of the scope of the proposed grounds of appeal - the appellant sought to reagitate his argument that the magistrate had no jurisdiction to make the listing and programming orders, we were satisfied that there is no arguable case of jurisdictional error. To the contrary the primary judge was correct in rejecting the assertion that there was an arguable case of jurisdictional error for the reasons that her Honour gave at primary reasons [50] - [62]. Importantly, as the primary judge correctly concluded, the magistrate made no determination that there had - or had not - been a breach of the residential tenancy agreement by either the appellant or the tenants. The magistrate's orders acknowledging the termination of the residential tenancy agreement were squarely based on s 60(1)(a)(i) of the RTA. The tenants' contention of breach and claim for compensation in respect thereof was a continuing matter of controversy for hearing and determination within the jurisdiction of the Magistrates Court.
For these reasons the appellant failed to establish that the primary judge's decision was wrong or attended by such sufficient doubt that it was in the interests of justice that there be leave to appeal.
The foregoing sufficed for dismissal of the application for leave to appeal. Even if, contrary to the foregoing, the appellant had shown that the primary judge's decision was attended with sufficient doubt to warrant its being reconsidered, we would not have granted leave to appeal. The appellant has not identified any respect in which his substantive rights are adversely affected by the listing and programming orders. At the most the appellant will need to deal with the tenants' claim in the Magistrates Court. If, contrary to our view, the appellant's argument of res judicata or Anshun estoppel had some merit, the argument could be raised in the Magistrates Court in answer to the tenants' compensation claim.
The application in an appeal dated 27 September 2024
The appellant's application in an appeal dated 27 September 2024 sought enforcement of the Magistrates Court order as to the termination of the residential tenancy agreement (par 1) and a stay of the listing and programming orders pending the hearing and determination of the appeal (pars 2 and 3). The application also sought any other order this court considered to be reasonable and proper together with costs (par 4).
It is not part of this court's appellate jurisdiction to enforce the orders of the Magistrates Court. Paragraph 1 of the appellant's application in an appeal dated 27 September 2024 was wholly misconceived and had to be refused.
By contrast, this court is able to stay the listing and programming orders. However, it would only be appropriate to do so if the appeal had reasonable prospects of success. That was not the case in circumstances where, for reasons already given, we would refuse leave to appeal. The refusal of leave to appeal inevitably led to the dismissal of the appeal making untenable the application for a stay of the listing and programming orders.
Nor were there any other orders that were reasonable and proper in the circumstances.
Conclusion
For these reasons we made orders that:
1.The appellant's application for leave to appeal against the orders of the Supreme Court of Western Australia made on 11 September 2024 in action CIV/2004/2024 is dismissed.
2.The appeal is dismissed.
3.The appellant's application in an appeal dated 27 September 2024 is dismissed.
4.There is no order as to costs.
We made no order as to costs as the appellant did not join the tenants as parties to the appeal.
Proposed Ground of Appeal
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AR
Associate to the Honourable Justice Vaughan
22 NOVEMBER 2024
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