HART-ROACH v Cady [No 2] - [2011] WASC 266

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HART-ROACH -v- CADY [No 2] [2011] WASC 266

CORAM: COMMISSIONER SLEIGHT

HEARD: 12 & 21 SEPTEMBER 2011

DELIVERED : 29 SEPTEMBER 2011

FILE NO/S: CIV 1578 of 2011

BETWEEN: RUTH MARY HART-ROACH
Applicant
AND
NEIL CADY
First Respondent
JEWELL HOUSE (YMCA)
Second Respondent

FILE NO/S :CIV 1666 of 2011

BETWEEN :RUTH MARY HART-ROACH
Plaintiff
AND
RONALD MELL CEO, REPRESENTING YMCA PERTH
First Defendant
NEIL CADY
Second Defendant

Catchwords:

Practice and procedure - Application to amend writ of summons - Application to join additional defendants to the writ of summons

Injunction - Interlocutory injunction - Claim under the Fair Trading Act 1987 - Whether the plaintiff has established a serious issue to be tried - Whether the balance of convenience favours the plaintiff - Turns on its own facts

Legislation:

Fair Trading Act 1987 (WA), s 74, s 76
Residential Tenancies Act 1987 (WA), s 3, s 5(1), s 5(2)(d) , s 12, s 12A, s 60(1)(a)

Result:

Application for leave to amend writ granted in part
Interim injunction set aside

Category: B

Representation:

CIV 1578 of 2011

Counsel:

Applicant:     In person
First Respondent           :     Mr N D Billington
Second Respondent       :     Mr N D Billington

Solicitors:

Applicant:     In person
First Respondent           :     Cahill Billington
Second Respondent       :     Cahill Billington

CIV 1666 of 2011

Counsel:

Plaintiff:     In person
First Defendant             :     Mr N D Billington
Second Defendant         :     Mr N D Billington

Solicitors:

Plaintiff:     In person
First Defendant             :     Cahill Billington
Second Defendant         :     Cahill Billington

Case(s) referred to in judgment(s):

American Cyanamid Co v Ethicon Ltd [1975] AC 396
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464
Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148
Commissioner for Fair Trading v Voulon [2005] WASC 229
Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Hart‑Roach v Cady [2011] WASC 90
Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1
Street v Mountford [1985] AC 809
Todd v Novotny [2001] WASC 171
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

COMMISSIONER SLEIGHT: Ms Hart‑Roach resides at Jewell House, an accommodation facility conducted by The Young Men's Christian Association of Perth Inc (the YMCA Perth). A dispute has arisen between Ms Hart‑Roach and the YMCA Perth which initially manifested itself in this court with Ms Hart‑Roach applying for an interim injunction in CIV 1578 of 2011 to prevent the YMCA Perth from evicting Ms Hart‑Roach. On 5 April 2011, an interim injunction was granted restraining the YMCA Perth from evicting Ms Hart‑Roach pursuant to an eviction notice dated 4 April 2011: Hart‑Roach v Cady [2011] WASC 90. A further order was made that, within 10 days, Ms Hart‑Roach file and serve a writ of summons to commence proceedings seeking relief. Ms Hart‑Roach has now commenced those proceedings (CIV 1666 of 2011). An outline of the claims contained in the writ of summons will be given later in this decision.

Applications

There are two substantive applications before me:
(1)an application by Ms Hart‑Roach to amend the indorsement of claim and add additional defendants to the writ of summons; and
(2)an application of the respondents in CIV 1578 of 2011 for the interim injunction to be set aside.
An application is also made by the second respondent in CIV 1578 of 2011 and the first defendant in CIV 1666 of 2011 for a change of name to 'The Young Men's Christian Association of Perth Inc'. This is based on affidavit material before me that the operator of Jewell House is the YMCA Perth, an incorporated body under the Associations Incorporation Act 1987 (WA). The claims of Ms Hart‑Roach are clearly meant to be claims against the YMCA Perth. Accordingly, I conclude that the name of the second respondent in CIV 1578 of 2011 and the first defendant in CIV 1666 of 2011 should be substituted with the name 'The Young Men's Christian Association of Perth Inc'.

Background

Jewell House is an 11‑storey building at 180 Goderich Street, Perth. The building is owned by the Royal Perth Hospital, which has granted to the YMCA Perth a licence to use the building as an accommodation facility. Jewell House has 198 rooms. Some of the rooms are single, some are double and some are family. The YMCA Perth provides accommodation for three types of persons:
(a)disadvantaged persons who have nowhere to live and are provided accommodation on a walk‑in basis;
(b)short‑term guests; and
(c)long‑term guests.
The room occupied by Ms Hart‑Roach is room 413, which is a single, standard room. A standard room has a bed, desk, chair, wardrobe, cupboard, mirror, fan, wall heater, fridge and television, all provided by the YMCA Perth. The ground floor of the building contains a common area. It has a cafe, internet room and lounge room. From the cafe, an occupant can buy breakfast seven days a week and an evening meal on Mondays and Thursdays.
The YMCA Perth provides a change of linen to each room once a week and a change of towels daily, or as required. The YMCA Perth also claims it cleans each room daily (although this is disputed by Ms Hart‑Roach).
When an occupant leaves Jewell House, he or she must place the room key either into a key drop hole at reception or give the key to a service attendant.
At any one time, a large number of people reside at Jewell House. Many of the occupants are itinerant and/or appear to suffer from mental problems. A large number have addiction problems. According to an affidavit of Mr Cady, who is the accommodation manager, the policy of management is designed not to impose a harsh system of regulation, but, at the same time, recognise that it is important to maintain proper order. To achieve this, the YMCA Perth has a three‑tier system of sanctions:
(i)firstly, where there has been an issue with an occupant, the occupant is given a verbal and a written warning. The written warning is a document called a 'Verbal Warning Letter';
(ii)if there continues to be an issue with an occupant, then another warning is given both verbally and in writing. The warning in writing is a document called a 'Final Warning Letter'; and
(iii)if there is a further issue, then the YMCA Perth will proceed to evict by giving the occupant an eviction notice. If necessary, the door of the occupant's room is locked and the occupant escorted from the premises (if necessary with the assistance of the police).

Ms Hart‑Roach's occupancy

Ms Hart‑Roach first obtained accommodation at Jewell House on 18 November 2010. Nothing was signed by Ms Hart‑Roach at the time of the commencement of her occupancy. It was only after she had been issued with a Final Warning Letter, later described in this decision, that it was ascertained she had not signed a registration form and management insisted that she then sign a registration form. Ms Hart‑Roach signed this form on 3 March 2011, but made a notation on the form that she was signing it under duress.
The form signed by Ms Hart‑Roach was a standard Guest Registration Form. The form describes the occupant as a 'Guest'. The Guest Registration Form contains the following information:
(a)it specifies an arrival and departure date;
(b)it specifies the room type and number; and
(c)it has a set of house rules listed on the form. These read as follows:
HOUSE RULES MUST BE FOLLOWED AT ALL TIMES
ANY BREACH OF THESE RULES WILL RESULT IN A WARNING FOLLOWED BY IMMEDIATE EVICTION
• No Smoking in guest rooms or/any other areas of the property/building.
• No use of recreational drugs on Jewell House property.
• No consumption of alcohol in the public areas of Jewell House.
• Anti‑social behavior [sic] from intoxication will not be tolerated.
• No electrical appliances to be used in room (exception clock radio, laptop).
• Guest's keys must be left at reception when guests leave the building.
• Respect must be shown to all guests and staff.
• No disorderly behavior [sic] towards staff & guests.
• Rooms must be kept tidy at all times.
• No cooking at Jewell House.
• Footwear to be worn at all times.
Your signature below denotes acknowledgement of & willingness to abide by this agreement.
The form has a further set of conditions attached to it which read as follows:
I agree that my liability for this bill is not waived and agree to be held personally liable in the event that the indicated person, company or association fails to pay for any part or the full amount of these charges and I shall be responsible for any loss or damage to the premises or its contents.
I agree that use of all facilities are at the risk of the user(s) and that the Hotel will not be held liable for any damage to vehicles, and/or personal injury incurred while on property.
Check‑out time as 10 am and I agree to pay a late check out fee if I exceed this time. If I check out after 2 pm, I agree to pay a fee equal to one additional evening.
Guests settling their accounts by cash are obliged to maintain their account in a credit situation at all times.
All valuables left on the premisis [sic] or in the rooms are the responsibility of the guest. The hotel will not be not be held liable for any loss of items during your stay at the property.
Any monies received by the hotel for weekly long‑term accommodation are non‑divisible. The rate is weekly accommodation and is not applicable to a nightly rate.
Your signature below denotes acknoledgement [sic] and acceptance of these terms and conditions.
The form has an additional notation in bold type which reads:
Please leave your room key at reception when you go out. Reception is open 24 hours.
Although the Guest Registration Form was not signed by Ms Hart‑Roach until 3 March 2011, the form signed by her states the arrival date as 1 December 2010 and the departure date as 15 December 2010.

History of disharmony

The affidavits filed by Ms Hart‑Roach and the respondents reveal a history of disharmony while Ms Hart‑Roach has been a guest at Jewell House.
The history of complaints alleged by YMCA Perth can be summarised as follows.
(a)On 6 December 2010, a number of staff alleged that Ms Hart‑Roach was hanging her sheets to dry on bushes in the Jewell House garden. Ms Hart‑Roach was spoken to by management concerning this.
(b)On 17 December 2010, staff received a complaint from the occupant of the adjoining room (room 412) regarding the noise level of Ms Hart‑Roach's television and complaining that Ms Hart‑Roach was leaving the door of her room open. Ms Hart‑Roach was spoken to by management concerning this.
(c)On 24 December 2010 and 2 January 2011, management received further complaints from the occupier of room 412 regarding the television noise coming from Ms Hart‑Roach's room.
(d)On 30 January 2011, a staff member complained that Ms Hart‑Roach had an argument in the reception room with the occupier of room 216. When Ms Hart‑Roach was spoken to by staff concerning this, Ms Hart‑Roach insisted that the police be called. When the police arrived, Ms Hart‑Roach complained that the occupier of room 417 was not looking after her daughter. The police made some preliminary inquiries, but no further action was taken.
(e)On 15 February 2011, a staff member received a complaint from a guest in room 410 regarding loud noise from Ms Hart‑Roach's room. When the staff member, Ms Amy Coolwell, called to inform Ms Hart‑Roach of the complaint, she was verbally abused by Ms Hart‑Roach. Later, Ms Hart‑Roach attended reception and further screamed at Ms Coolwell. Ms Coolwell, at the invitation of Ms Hart‑Roach, agreed to go to Ms Hart‑Roach's room and investigate the level of the music being played. Ms Coolwell formed the view that the music was at a reasonable level, but with the door open it was louder. Again, Ms Hart‑Roach became angry and screamed at Ms Coolwell. Ms Coolwell subsequently issued Ms Hart‑Roach with a Verbal Warning Letter. This letter stated as follows:
It has come to the attention of Management that your behaviour has not been in line with your Accommodation Agreement.
Description of behaviour - Disrespecting staff, (yelling at staff at reception)
You have 24 hours to rectify this matter, your room will be inspected by the 16/02/11 to ensure that you are complying with your Agreement.
Because you have received this letter, this will be recorded on your registration card. This letter then is your 1st WARNING LETTER; any further breaches of your Residential Agreement WILL result in further disciplinary action.
(f)On or about 28 February 2011, management received a series of letters from the occupant of room 408 complaining about abusive behaviour by Ms Hart‑Roach.
(g)Between 27 February and 2 March 2011, the staff received five letters of complaint from other residents. On receipt of these letters, Mr Cady left at reception a letter for Ms Hart‑Roach asking her to come and speak with Mr Cady to discuss the letters of complaint. In response to this, Ms Hart‑Roach sent a letter to Mr Cady requesting further information concerning the complaints. Mr Cady then issued, on 3 March 2011, another Verbal Warning letter. This letter described the alleged inappropriate behaviour as:
I now have seven letters of complaint from other guests in Jewell House concerning your behaviour. I have requested that you met [sic] with me to discuss these matters and you have not done so.
Mr Cady stated in his affidavit that he then noticed that Ms Hart‑Roach had already been given a Verbal Warning Letter earlier and therefore he then issued a Final Warning Letter which read as follows:
It has come to the attention of Management that your behaviour has not been in line with your Accommodation Agreement.
Description of behaviour
Issued with a Verbal Warning on 15th Feb 2011 - disrespecting staff
This Final Warning Letter - complaint letters from other guests about your behaviour & failing to meet with the Manager to discuss these issues after you were requested to do so.
This letter then is your FINAL WARNING LETTER; any further breaches of your Residential Agreement WILL result in a next day eviction.
(h)Mr Cady stated in an affidavit that after he issued the Final Warning Letter he noticed that Ms Hart‑Roach had not signed a Guest Registration Form. He approached Ms Hart‑Roach who, after initially refusing to sign the form, eventually agreed to do so.
(i)On 2 April 2011, another resident (occupier of room 405) complained that Ms Hart‑Roach had borrowed her iron and not returned it. The allegation was supported by two other residents who claimed to have seen Ms Hart‑Roach with the iron. The police were called in to investigate the matter. Ms Hart‑Roach claimed that the iron was hers, that she had been doing some ironing for the occupant of room 405 and that the occupant of room 405 had become upset when Ms Hart‑Roach declined to do any further ironing for her. The police, after making some inquiries, did not take the matter any further. In the meantime, Ms Hart‑Roach complained to the Commissioner of Consumer Affairs.
(j)On 4 April 2011, a staff member, Ms Coolwell, complained to management that she overheard Ms Hart‑Roach refer to Ms Coolwell as 'the moron behind the counter'. As a result of this, an eviction notice was prepared and given to Ms Hart‑Roach on 4 April 2011.
The eviction notice provided as follows:
It has come to the attention of Management that your behaviour has not been in line with your Accommodation Agreement.
You have received an official Verbal Warning (3^rd March), which is recorded on your Reservation Card and you have received a Final Warning Letter (3^rd March) which is also recorded on your Reservation Card.
This is the final breach of your Residential Agreement and has been recorded below and has also been added to your Reservation Card.
Final Breach of Residential Agreement
Breaching your agreement to stay at Jewell House referring to 'Respect must be shown to all guest and staff' This breach took place in reception area on the 4^th April 2011, and was witnessed by the Guest Service Supervisor and Guest Service Assistant. Where you blatantly referred to the Guest Service Assistant as in front of other guests '... the moron behind the count ...'
This behaviour does not conform to the Jewell House Rules.
As a result of your behaviour you must vacate your room and leave the building by
10.00am on the 5th of April 2011.
As a result of this eviction notice, Ms Hart‑Roach then applied to this court on 5 April 2011 for an interim injunction, which was granted.
(k)Since the injunction was granted, there have been a number of other complaints by the YMCA Perth against Ms Hart‑Roach's behaviour. It is alleged she was smoking on the grounds of Jewell House, she refused to accept linen and towels and it is alleged that she soiled a toilet that had recently been cleaned.
In general terms, Ms Hart‑Roach disputes the allegations raised by YMCA Perth as detailed above. She claims that she has been subject to unreasonable harassment by the YMCA Perth, including false allegations of stealing an iron, duress to sign the Guest Registration Form and general interference with her right to quite enjoyment of her occupancy at Jewell House.
I am not able to resolve what occurred in relation to the incidents alleged by the YMCA Perth or whether Ms Hart‑Roach has been subject to harassment as alleged by her. This is because the evidence presented to me has been presented in affidavit form and has not been tested.

History of proceedings

Ms Hart‑Roach initially commenced proceedings by way of a Notice of Originating Motion seeking the interim injunction which was granted to her on 5 April 2011. The notice of originating motion sought the following orders:
1.That the eviction be estopped until there can be a full hearing of the matters.
2.That Mr Cady cease to provoke and degrade my status as a human being, and ceases to defame or libel me to third parties.
3.That he address all 'complaints' about my conduct to the designated officer, in writing, at the Department of Consumer Protection.
4.That the employees of Jewell House cease to act in a precipitous and irrational manner so that I have some semblance of peace and quiet enjoyment contingent on order 3.
On 15 April 2011, Ms Hart‑Roach commenced proceedings in CIV 1666 of 2011 by a writ of summons containing an indorsement of claim. The indorsement of claim is verbose in its nature and does not succinctly identify the legal basis for the claim by Ms Hart‑Roach. However, it must be taken into account that Ms Hart‑Roach is unrepresented in these proceedings and therefore careful consideration of her indorsement of claim must be made in an effort to identify the legal basis for any claim by her. Having considered the indorsement of claim carefully, I consider that it can be summarised as follows:
(1)YMCA Perth, by the use of its logo 'We Build Strong People, Strong Families, Strong Communities', engaged in conduct that was misleading or deceptive, contrary to s 10 of the Fair Trading Act 1987 (WA) (the FTA 1987);
(2)Ms Hart‑Roach was mislead or deceived by this representation; and
(3)Ms Hart‑Roach seeks compensatory damages pursuant to s 77 of the FTA 1987 (although the indorsement incorrectly refers to s 57 of the FTA 1987).

The basis upon which Ms Hart‑Roach seeks compensatory damages is that the YMCA Perth acted contrary to its logo and thereby engaged in misleading and deceptive conduct by:
(a)failing to provide Ms Hart‑Roach with quiet enjoyment of her room and facilities at Jewell House;
(b)overcharging Ms Hart‑Roach for her occupation at Jewell House;
(c)deliberately and negligently failing to respond to any of the formal complaints of Ms Hart‑Roach;
(d)a maintenance employee waylaying Ms Hart‑Roach in a dark corridor on the fourth floor at Jewell House on the morning of 3 March 2011; and
(e)the second defendant, Mr Cady, applying stringent, coercive pressure for Ms Hart‑Roach to sign a Guest Registration Form.
In a minute of proposed amendments to the indorsement of claim, Ms Hart‑Roach has inserted a preamble to her claim. This preamble is lengthy and does not, in my view, identify any new cause of action. However, the preamble particularises the damages sought by Ms Hart‑Roach as follows:
(1)$5 million for the loss of commercial opportunity during 2011, for the sole attributed cause of the complete disruption and prejudice to Ms Hart‑Roach's life.
(2)Damages for the serial evictions of the plaintiff and the denial of amenity at Jewell House since 19 November 2010, as set out in the indorsed writ.
(3)Further claims for damages remain the subject of further investigation, discovery and interrogatories.
(4)An ex gratia payment of $50,000 to make it possible for Ms Hart‑Roach to move out of Jewell House and to rent alternative accommodation in the commercial market as a tenant, with some rights and privacy.

Relevant legislation

On 1 January 2011 (the commencement date), the Australian Consumer Law (WA) came into effect by virtue of the Fair Trading Act 2010 (WA). The Australian Consumer Law (WA) is a consumer code which has now been adopted by the Commonwealth and the states of Australia. The effect of the Fair Trading Act 2010 was that the FTA 1987 no longer applies, except in limited circumstances, including in relation to acts or omissions that occurred before the commencement date (s 3D of the FTA 1987). Ms Hart‑Roach's claim is based upon misleading or deceptive conduct allegedly occurring before she entered Jewell House, by the YMCA Perth making representations by its logo that 'We Build Strong People, Strong Families, Strong Communities'. In my view, although Ms Hart‑Roach relies in part upon the conduct of YMCA Perth after the commencement date as evidence of the alleged misleading or deceptive, the acts or omissions that are the basis of the claim relate back to prior to the commencement date. Accordingly, any claim Ms Hart‑Roach makes pursuant to the indorsement of claim is pursuant to the FTA 1987. If I am wrong in this conclusion, there are equivalent provisions which apply under the Australian Consumer Law (WA).
Under s 10 of the FTA 1987, a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 74 of the FTA 1987 provides that the Supreme Court may grant an injunction where it is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constituted a contravention of the FTA 1987. The power of the court to grant the injunction may be exercised whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of the kind complained of; and whether or not there is any imminent danger of substantial damage to any person. Under s 76(5), an interim injunction may be granted pending final determination of the application.

Nature of Ms Hart‑Roach's occupancy

It is not in dispute that the nature of Ms Hart‑Roach's occupancy of room 413 at Jewell House is that of a periodic licence. The licence to occupy is on a recurring basis and, to this extent, it is similar to a periodic tenancy.
It was not contended by Ms Hart‑Roach that she is a residential tenant under the Residential Tenancies Act 1987 (WA) (the RTA). As a licensee, Ms Hart‑Roach is in a position equivalent to a lodger or boarder: Commissioner for Fair Trading v Voulon [2005] WASC 229 [54] ‑ [65] (Hasluck J); Street v Mountford [1985] AC 809, 827 (Templeman LJ). Section 5(2)(d) of the RTA provides that the RTA does not apply where a person is a grantee of a right of occupancy as a boarder or lodger. Accordingly, it is not contended that the notice of eviction on 4 April 2011 was in breach of the RTA, which requires a set period of notice to be given and an order of the court obtained before a person can be evicted. Further, had Ms Hart‑Roach made a claim for injunctive relief based upon the provisions of the RTA, then the Magistrates Court, under s 12A of the RTA, would have exclusive jurisdiction.

Should orders be made allowing Ms Hart‑Roach to amend the writ of summons?

The first defendant named in the writ of summons in CIV 1666 of 2011 is Ronald Mell, representing the YMCA Perth, ABN 37 276 356 812. The second defendant named in the writ of summons is Neil Cady.
Ms Hart‑Roach now seeks leave to amend the writ of summons in two ways.
(1)Ms Hart‑Roach seeks to add, as new defendants, the following:
(i)The Young Men's Christian Association of Perth Inc;
(ii)The Council of Governors of The Young Men's Christian Association of Perth Inc;
(iii)Neale Billington of lawyers Cahill Billington; and
(iv)The Salvation Army, Perth Division.
(2)Ms Hart‑Roach also proposes to amend the indorsement of claim by adding over five pages of preamble and deleting par 6 of the existing indorsement of claim.
Under O 21 r 1 of the Rules of the Supreme Court1971 (WA), a plaintiff may, without leave of the court, amend a writ once at any time before the pleadings in the action began by the writ are deemed to be closed. However, this rule does not apply in relation to amendment which consists of the addition or substitution of a party to an action or an alteration of the capacity in which a party to the action sues or is sued, or the addition or substitution of a new cause of action: O 21 r 3.
Under O 21 r 5(1), the court may at any stage of the proceedings allow the plaintiff to amend the writ and in such manner (if any) as the court may direct. Under O 21 r 5(3), an amendment may be made to correct the name of a party, notwithstanding that the effect will be to substitute a new party, if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intended to be sued.
Under O 18 r 6, the court may order any person who ought to have been joined as a party be added as a party to the proceedings.

I have already found that the YMCA Perth should be substituted as the name of the first defendant. On the basis of the indorsement of claim contained in the writ of summons and the proposed amended indorsement of claim, I see no basis for joining Mr Mell in his personal capacity, the Council of Governors of The Young Men's Christian Association of Perth Inc, Mr Billington and The Salvation Army, Perth Division. An affidavit of Ms Hart‑Roach, filed in support of her application to amend the writ, contains speculation of some form of conspiracy between these entities, but the speculation is not reflected in any way by any cause of action disclosed in the indorsement of claim and the relief sought. Accordingly, I refuse leave for Ms Hart‑Roach to join the additional parties she seeks by amending the writ of summons.
At this stage, I express no opinion as to whether the amended indorsement of claim with its lengthy preamble is valid. This aspect of the indorsement has not been challenged by the defendants at this stage and, in any event, prima facie, amendment is allowed without leave. I express no opinion as to whether there are valid grounds for challenging the indorsement of claim on the basis that it fails adequately to plead a cause of action or that its form should be struck out on other grounds.
In summary, I disallow the proposed amended writ of summons, but Ms Hart‑Roach will be free to file a further amended writ of summons without the additional parties, with the YMCA Perth as the first defendant.

Should the interim injunction be set aside?

The central issue in this matter is whether Ms Hart‑Roach should enjoy the benefit of a continuing interim injunction based upon a claim made by her in CIV 1666 of 2011 pursuant to the FTA 1987. It is significant that Ms Hart‑Roach does not make any claim in CIV 1666 of 2011 that the eviction notice of 4 April 2011 was invalid and nor does she claim that she has a right to permanent residence at Jewell House. Ms Hart‑Roach acknowledges that her licence could be terminated on reasonable notice.
In my earlier decision, Hart‑Roach v Cady, I set out a summary of the principles that apply where an application is made for an interim injunction. The same principles apply on the question of whether an interim injunction should continue.
Essentially, there is a dual consideration of:
(1)whether the plaintiff has established a serious issue to be tried; and
(2)whether the balance of convenience favours the plaintiff.
See Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No3) [1998] HCA 30; (1998) 195 CLR 1, 24 (Brennan CJ, McHugh, Gummow, Kirby & Hayne JJ), 60 (Gaudron J), 86 (Callinan J); Fejo v Northern Territory of Australia[1998] HCA 58; (1998) 195 CLR 96, 125 ‑ 126 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne & Callinan JJ), 141 (Kirby J).
The likely success of the plaintiff at trial is a relevant factor to both the question as to whether there is a serious question to be tried and whether the balance of convenience favours granting the injunction: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464, 472. As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo[1991] 2 VR 49, 54 ‑ 55; Todd v Novotny [2001] WASC 171; Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [11].
The power to grant an interim injunction under s 76(5) of FTA 1987 is not an unlimited right. As a general rule, the purpose of an interlocutory injunction is to keep matters in the status quo until the rights of the parties can be determined at the hearing. Preservation of the status quo means preservation of the remedy sought by way of final relief in the action. In other words, the plaintiff seeking an interlocutory injunction must be able to show sufficient relationship to the right contained in the final relief sought. Accordingly, it is necessary to identify the legal or equitable rights which are to be determined in respect of which the final relief is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, 217 (Gleeson CJ), 240 ‑ 241 (Gummow & Hayne JJ), 312 (Callinan J); Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148, 153 (Mason ACJ).
If damages will be an adequate remedy and the defendant will be able to pay them, an interlocutory injunction should not normally be granted: American Cyanamid Co v Ethicon Ltd [1975] AC 396, 408.

Conclusion

I conclude that, in all the circumstances, the interim injunction granted on the 5 April 2011 should be set aside. The reasons for this are as follows.
(1)Ms Hart‑Roach does not plead in CIV 1666 of 2011 that the eviction notice was illegal or seek any remedy by way of injunctive relief or otherwise in relation to the purported eviction.
(2)The claim by Ms Hart‑Roach is for damages only and the interim injunction is not, in my opinion, necessary in order to preserve any cause of action or relief sought. Although one of the items of damage sought by Ms Hart‑Roach is an ex gratia payment of $50,000 to make it possible for Ms Hart‑Roach to move out of Jewell House and to rent alternative accommodation in the commercial market as a tenant, it is difficult to see how such a claim could succeed. Ignoring the description 'ex gratia payment', it is difficult to see how a claim of reliance upon the logo of the YMCA Perth could lead to a loss or damages in a form that would require the YMCA Perth to pay the costs of Ms Hart‑Roach moving to alternative premises, given that at any time she occupied the premises as a periodic licensee. The nature of a periodic licence suggests (without finally deciding the point) that the YMCA Perth is entitled to terminate that licence at the expiration of each period of the licence or after reasonable notice. Accordingly, there is little security of tenure and at any time Ms Hart‑Roach could be subject to incurring relocation costs.
(3)The injunction only restrains the YMCA Perth from evicting Ms Hart‑Roach pursuant to the eviction notice of 4 April 2011 and there is nothing to prevent the YMCA Perth from taking steps to evict Ms Hart‑Roach by other lawful means.
Taking these factors into account, I conclude that Ms Hart‑Roach has not established proper grounds to maintain the interim injunction, either because there is insufficient basis for allowing the injunction to continue to maintain the status quo or because, on the balance of convenience, I am not satisfied that the injunction should continue.
I will hear from the parties as to what consequential orders should follow.

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Citations

HART-ROACH v Cady [No 2] [2011] WASC 266

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

2

Hart-Roach v Cady [2011] WASC 90

Commissioner for Fair Trading v Voulon [2005] WASC 229

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30