Bruce v Phillips
[2014] WADC 177
•28 NOVEMBER 2014
BRUCE -v- PHILLIPS [2014] WADC 177
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 177 | |
| 22/01/2015 | |||
| Case No: | APP:2/2014 | 28 NOVEMBER 2014 | |
| Coram: | SLEIGHT DCJ | 28/11/14 | |
| ALBANY | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | SHAYNE BRUCE MARIA BRUCE DONALD PHILLIPS |
Catchwords: | Practice and procedure Appeal to the District Court No jurisdiction to hear appeal under the Residential Tenancy Act 1987 Remission to the Supreme Court |
Legislation: | District Court of Western Australia Act 1969 Magistrates Court Act 2004 Residential Tenancy Act 1987 (WA) |
Case References: | McCarthy v Hill (Ray White Rockingham) [2013] WADC 78 Miller v McCormick [No 2] [2012] WASC 347 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First named appellant
MARIA BRUCE
Second named appellant
AND
DONALD PHILLIPS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T WATT
Citation : ALB RSTN 440 OF 2013
Catchwords:
Practice and procedure - Appeal to the District Court - No jurisdiction to hear appeal under the Residential Tenancy Act 1987 - Remission to the Supreme Court
Legislation:
District Court of Western Australia Act 1969
Magistrates Court Act 2004
Residential Tenancy Act 1987 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
First named appellant : No appearance
Second named appellant : In person
Respondent : In person
Solicitors:
First named appellant : Not applicable
Second named appellant : Not applicable
Respondent : Not applicable
Case(s) referred to in judgment(s):
McCarthy v Hill (Ray White Rockingham) [2013] WADC 78
Miller v McCormick [No 2] [2012] WASC 347
1 SLEIGHT DCJ: At the hearing of this appeal, I dismissed the appeal and indicated written reasons would follow. These are those written reasons.
Background
2 Mr Donald Phillips is the owner of premises at 14 Panorama Road, Big Grove (the premises).
3 Mr Shayne Bruce and Mrs Marie Bruce were tenants of the premises pursuant to a tenancy agreement.
4 By application dated 19 December 2013 Mr Phillips applied to the Magistrates Court for orders under the Residential Tenancy Act 1987 (WA) (RTA). The application sought orders:
1. Possession of the premises;
2. Payment of rent and utility arrears;
3. Costs associated with cleaning and damages.
5 On 7 January 2014 orders were made by Registrar Rennie that:
1. The tenancy agreement be terminated as from 14 January 2014.
2. Possession be given at 4.00 pm on 14 January 2014
3. The question of rent arrears and damages be adjourned to 11 February 2014.
6 On 10 January 2014 Mr and Mrs Bruce made an application to set aside the order of 7 January 2014 on the grounds that they had not been served with a notification of the hearing date. On 14 February 2014 the application was heard by Magistrate Watt. Magistrate Watt set aside the orders of 7 January 2014 and after a re-hearing ordered that the premises be vacated by 5.00 pm on 15 February 2014. Magistrate Watt also ordered that the question of damages and cleaning costs be adjourned sine die.
7 A notice of the hearing date of the assessment of damages and cleaning costs claimed was issued from the Albany Magistrates Court on 11 March 2014. A copy of the notice was sent to Mr and Mrs Bruce by post to the address of the premises, being 14 Panorama Road, Big Grove. Of course, by this time Mr and Mrs Bruce had vacated the premises pursuant to the order of 14 February 2014. The notice sent by the court was returned to the sender.
8 On 11 April 2014 a hearing was held in the Albany Magistrates Court in the absence of Mr and Mrs Bruce. The court ordered that Mr and Mrs Bruce pay damages in the sum of $5,629.43 and that the security bond of $1,500 held by the bond administrator at Perth be applied to the judgment debt.
9 A copy of the order was sent by the Albany Magistrates Court to Mr and Mrs Bruce on 29 April 2014, but again, the notice was addressed to the address of the premises at 14 Panorama Road, Big Grove.
10 On 26 May 2014 Mr Phillips filed a Means Enquiry Summons pursuant to the Civil Judgment Enforcement Act 2004. The address of Mr and Mrs Bruce stated on the summons was 540 Albany Highway, Albany. The summons was returnable on 8 July 2014.
11 On 8 July 2014 Mr and Mrs Bruce appeared and complained that they had not been advised of the hearing date for the hearing held on 11 April 2014. The Means Enquiry Summons was adjourned sine die and an order made that Mr and Mrs Bruce file an appeal by 15 July 2014.
12 On 15 July 2014 Mr and Mrs Bruce lodged an appeal in the District Court of Western Australia, appealing the decision of 11 April 2014 on the grounds that they had been denied natural justice by not being notified of the hearing date.
Jurisdictional issue
13 A threshold jurisdictional issue arises as to whether the District Court of Western Australia has jurisdiction to hear the appeal.
14 For reasons set out below an appeal to the District Court of Western Australia is misconceived as this court has no jurisdiction.
15 Section 26 of the RTA provides as follows:
(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.
16 The effect of s 26 of the RTA is that an order made by the Magistrates Court under the RTA is final and binding. Normally appeals from the Magistrates Court, when exercising civil jurisdiction, are to the District Court under s 40 of the Magistrates Court (Civil Proceedings Act) 2004. However the effect of s 26 of the RTA is that any such appeal is barred in respect of matters under the RTA: Miller v McCormick[No 2] [2012] WASC 347 [16]; McCarthy v Hill (Ray White Rockingham) [2013] WADC 78.
17 Although normally there are no rights of appeal against a decision of a magistrate under the RTA, under s 36(1) of the Magistrates Court Act 2004, the Supreme Court has power to control the Magistrates Court by way of a review order. The power of the Supreme Court to make a review order is limited under s 26(2) of the RTA to circumstances where the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under the RTA in respect to the proceedings or that a party to the proceedings has been denied natural justice.
18 A question that arises is whether I should remit this matter to the Supreme Court. The power to remit a matter exists under s 36(7) of the Magistrates Court Act 2004 which provides:
(7) If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may —
(a) remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or
(b) adjourn the appeal to enable an application to be made to the Supreme Court —
(i) under subsection (1); or
(ii) under the District Court of Western Australia Act 1969 section 76.
20 In the matter of McCarthy v Hill (Ray White Rockingham) I assumed that the District Court had power to remit a matter to the Supreme Court where an appeal had been lodged in the District Court against a decision in the Magistrates Court under the RTA. In that case I declined to exercise a discretion to remit the matter to the Supreme Court. However, on reflection, I have reservations about whether there is power to remit under s 36(7) of Magistrates Court Act 2004 given that there is no valid appeal before the District Court. Partly because of these reservations I have concluded that it is not appropriate to remit the matter to the Supreme Court. If Mr and Mrs Bruce wish to pursue their grievance they will need to file proceedings afresh in the Supreme Court by way of an application for an order for review.
21 Accordingly, the proceedings before me are dismissed. There will be no order as to costs.
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