Hart-Roach v Magistrate J a Hawkins
[2010] WASC 282
•13 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HART-ROACH -v- MAGISTRATE J A HAWKINS [2010] WASC 282
CORAM: McKECHNIE J
HEARD: 13 OCTOBER 2010
DELIVERED : 13 OCTOBER 2010
FILE NO/S: CIV 2485 of 2010
BETWEEN: RUTH MARY HART-ROACH
Applicant
AND
MAGISTRATE J A HAWKINS
Defendant
Catchwords:
Courts and tribunals - Whether certiorari lies to quash decision under Residential Tenancies Act 1987 (WA) - Whether breach of rules of natural justice - No new principles
Legislation:
Magistrates Courts Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 26
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Defendant: No appearance
Interested Party : Mr A C Mcintosh
Solicitors:
Applicant: In person
Defendant: State Solicitor for Western Australia
Interested Party : Muries Lawyers
Case(s) referred to in judgment(s):
Nil
McKECHNIE J: On an amended notice of originating motion the applicant seeks a review order under the Magistrates Court Act 2004 (WA), s 36, to set aside orders made by the magistrate for her eviction from unit 4, 76 Broadway, Nedlands. The magistrate has filed a submitting appearance. The other party to the dispute appears by counsel.
Under the Residential Tenancies Act 1987 (WA), s 26, the Supreme Court may not make an order under the Magistrates Court Act, s 36, unless satisfied that the Magistrates Court had or has no jurisdiction conferred by or under the Act or that a party to the proceedings has been denied natural justice. The first limb does not apply and the submissions have centred on the issue of natural justice.
Proceedings in various forms have been ongoing since January 2010. The applicant has filed two voluminous affidavits of 16 September 2010 and 12 October 2010 outlining the proceedings, but it is only necessary to focus on the proceedings that led to the eviction order.
On 9 June 2010 the owner of the premises issued a notice under the Residential Tenancies Act, s 64, requiring the applicant to vacate the unit no later than 11 August 2010. On 12 August 2010 the owner issued proceedings numbered 12178/10 for termination of the periodic tenancy and an order for possession.
Hearings under the Residential Tenancies Act must be expeditious. The magistrate heard the matter on 26 August and then on 3, 8 and 17 September 2010. Proceedings were adjourned on each occasion at the request of the applicant until the hearing on 17 September 2010.
The applicant did not attend court on 17 September 2010. The magistrate made an eviction order in her absence. On 24 September 2010 the magistrate made a suspension order under the Civil Judgments Enforcement Act2004 (WA) until today.
The applicant was aware of the hearing on 17 September 2010. Instead of attending the hearing, she chose to attend the Supreme Court and file papers in connection with this application. She also had a medical certificate dated 15 September 2010 which reads:
To whom it may concern: This is to certify the above person is medically unfit to appear in Court on the 17 of September.
No explanation was given why she was unfit. This certificate was not made available to the Magistrate before the hearing on 17 September 2010. At the hearing on 24 September 2010 the Magistrate outlined the court of proceedings. Referring to the hearing on 17 September 2010 she said:
That matter was listed for hearing to commence at 9 am on that date and orders advising the parties of that hearing date were posted to them on 8 September 2010. Mrs Hart-Roach did not attend that hearing on 17 September 2010 which commenced shortly after 9 am.
I was the presiding Magistrate at the time of the commencement of the hearing. I had been given no advice from any member of staff that Mrs Hart-Roach had made any contact with the Court. The matter had been adjourned to 17 September, 2010, following a hearing on 8 September, 2010, during which Mrs Hart-Roach sought a further adjournment.
At that hearing on 8 September 2010, after making submissions in respect to an adjournment and during the owner's representative's submissions, Mrs Hart-Roach left the courtroom. She did not state why she was leaving and when an orderly followed her to inquire whether she would be returning, she advised the orderly that they could do what they like.
Despite her leaving and against submissions by the owner not to adjourn that hearing, I nevertheless did so. I gave extensive reasons as to why and adjourned the matter to 17 September 2010. Given Mrs Hart-Roach's conduct on 8 September 2010, her non‑appearance on 17 September 2010 was therefore not unexpected. Therefore, having received no contact containing Mrs Hart-Roach's whereabouts and following her conduct on 8 September, 2010, the hearing proceeded in her absence.
Mrs Hart-Roach's (indistinct) affidavit sworn 2 September, 2010, that she had filed in respect of the application had been admitted into evidence by the applicant/owner and was therefore considered by the Court when judgment was given on 17 September, 2010.
It was not until just a few moments before I was delivering my reasons that I was informed that the Court had just heard word from Mrs Hart-Roach that she was running late and would likely be at Court some time after 10 am. No reason for her delay was given and no mention was made that she had obtained a medical certificate for that day.
The affidavit she has filed in support of this application establishes, however, that the reason for delay was that she was attending the Supreme Court in order to file the notice of motion, being annexure RHR2 to that affidavit.
The magistrate then speaks about this motion. She says:
In this current application she claims she has been denied procedural fairness. I note that Mrs Hart‑Roach filed her notice of motion in the Supreme Court at the time of the hearing on 17 September, 2010, was taking place. It would seem, therefore, that the application that she had made relates to previous hearings in this matter that took place before me on 26 August, 2010, 3 September, 2010, and 8 September, 2010. On each of these occasions Mrs Hart-Roach sought and was granted adjournments.
Then she continues one paragraph on:
As previously stated, during the hearing on 3 September, 2010, her lengthy affidavit sworn 2 September 2010 was admitted into evidence. The application, the subject of application number 12178 of 2010 was an application by an owner for termination of the residential tenancy pursuant to a notice issued under section 64 of the Residential Tenancies Act.
The rules of natural justice
The rules of natural justice are flexible and include the right to know the case to be mounted against a person, a reasonable opportunity to be heard and no prejudgment until hearing.
Knowledge of case
The applicant clearly knew the case to be mounted against her. She filed an affidavit responding to the claim and alleging that it was being mounted for an improper purpose.
Right to be heard
I find that the applicant was given a reasonable opportunity to be heard. Her affidavit of 16 September annexes at RHR17 the notice of adjournment to 17 September at 9.00 am, so she was clearly aware of both the date and time.
The matter had been adjourned on three previous occasions and the applicant had deliberately absented herself from part of the hearing on 8 September. She was well aware of the hearing on 17 September and made a choice not to attend at the time listed for hearing but to file documents in the Supreme Court instead.
The inadequate medical certificate has to be seen in the light of the whole history of the proceedings, including the fact that the applicant was apparently well enough to attend court, because she not only attended the Supreme Court for filing but did, it would appear, subsequently attend the Magistrates Court at a time convenient for her though after the matter had been concluded.
No pre‑judgment
The applicant asserts in the affidavit of 16 September 2010 par 17(1) that the magistrate 'made it clear to the applicant that her eviction was inevitable'.
No transcript was filed to give substance to this bare assertion. Having regard to the intemperate nature of some of the applicant's written communications with others, and her extensive allegations against very many people, both in this litigation and other matters, I am not prepared to place weight on her bare assertion in the absence of transcript.
Moreover, the magistrate's subsequent actions do not indicate prejudgment. The proceedings were adjourned several times at the applicant's request over the opposition of the other party. The magistrate received and took account of the applicant's affidavit of 2 September 2010 when the matter went to a full hearing on 17 September 2010. Significantly, the magistrate suspended enforcement of the judgment to enable this court to hear this application for review.
Conclusion
Satisfaction that a party has been denied natural justice is a jurisdictional fact necessary before power to make an order under the Magistrates Court Act, s 36, is enlivened. I am not satisfied as to that jurisdictional fact and the application is therefore dismissed.
0
2