HUNTER - [2020] WASC 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HUNTER [2020] WASC 11
CORAM:   FIANNACA J
HEARD:   9 JANUARY 2020
DELIVERED          :   9 JANUARY 2020
PUBLISHED           :   20 JANUARY 2020
FILE NO/S:   CIV 1026 of 2020

EX PARTE
SHANE HUNTER
First Plaintiff
MEITY HUNTER
Second Plaintiff

Catchwords:

Applications for review under s 36 of the Magistrates Court Act 2004 (WA) - Leave to file Originating Summons - Application for interlocutory injunction - Jurisdictional error - Alleged failure to accord natural justice - Failure to provide address on lease agreement

Legislation:

Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 102
Magistrates Court (General) Rules 2005 (WA) r 9
Magistrates Court Act 2004 (WA) s 36
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Leave to lodge documents refused

Category: B

Representation:

Counsel:

First Plaintiff	:	In Person
Second Plaintiff	:	No appearance

Solicitors:

First Plaintiff	:	In Person
Second Plaintiff	:	No appearance

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

Ashwin v Housing Authority [2019] WASC 144
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
Kirk v Industrial Court of New South Wales [2010] HCA 1, (2010) 239 CLR 531
Knaggs v Director of Public Prosecutions (New South Wales) & Anor (2007) NSWCA 83; 170 A Crim R 366
Re Glustein; Ex parte Anthony [2014] WASC 381
Re Magistrate T Watt; Ex Parte The Housing Authority [2015] WASC 140
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Re Rules of the Supreme Court 1971 (WA); Ex Parte Nikoloff [2019] WASC 263
Re Rules of the Supreme Court 1971 (WA); Ex Parte Prazmo [2019] WASC 243
Re Rules of the Supreme Court 1971 (WA); Ex Parte Ruba [2019] WASC 92
Sawitri v Robson [2019] WASC 82
Sawitri v Robson [No 2] [2019] WASC 145

FIANNACA J:

(These reasons were delivered orally on 9 January 2020 and have been edited from the transcript).

Introduction

This is an application by Mr Hunter ('the applicant') for leave to lodge documents in the Supreme Court to commence an application under s 36 of the Magistrates Court Act 2004 (WA) for judicial review of a Magistrates Court order, and for an interlocutory injunction to prevent the lessors of premises, from which the applicant and his wife have been evicted, from disposing of property belonging to the applicant and his family.

Background

The order in respect of which the applicant seeks a review is an order made on 11 December 2019 under the Residential Tenancies Act 1987 (WA) (Residential Tenancies Act):
(a)terminating the residential tenancy agreement pursuant to which the applicant and his wife were tenants of premises at an address in Stirling; and
(b)ordering the tenants to deliver up possession of the premises to the lessors ('the eviction order').
The order was to have effect from 19 December 2019.
The order was enforced on 19 December 2019, when the applicant and his family were evicted from the premises after a bailiff attended with police officers, who were there to maintain the peace.
The applicant sought to lodge a notice of originating motion, with a supporting affidavit, on 7 January 2020 in order to commence the proceedings for judicial review and for an interlocutory injunction. The documents were referred to the Acting Principal Registrar for review. The Acting Principal Registrar refused to accept the documents for filing, pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC), which provides as follows:
5. Abuse of process etc., procedure in case of
(1)If any writ, process, motion, application or commission which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
(Subrule (2) is not relevant.)
(3)In all other cases, an application or commission shall be made to a judge in chambers.
(4)Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.
By letter dated 7 January 2020, addressed to the applicant by his name, at the address that he had provided in the documentation, the Acting Principal Registrar informed him that she was of the view that the documents appeared to be an abuse of the court for the following reasons:
(a)you are seeking review of the Magistrate's order dated 11 December 2019. Any such application is governed by section 36 of the Magistrates Court Act 2004 (WA) and must be made pursuant to, and in accordance with, RSC O 56A. Order 56A r 2(1)(b) and (c) provide that such an application must be made ex parte and must be supported by an affidavit; and
(b)you are seeking an urgent interlocutory injunction to prevent the removal and destruction of personal belongings at the property from which you were evicted. Section 79 of the Residential Tenancies Act 1987 (RTA) provides as follows:
Abandoned goods
(1A)In this section –
goods does not include a tenant's document as defined in section 80A.
(1)Where a residential tenancy agreement is terminated and goods are left on the premises that were subject to the agreement, the lessor may, after the expiration of two days from the termination of the agreement, remove and destroy or dispose of the goods if:
(a)the goods are perishable foodstuffs; or
(b)the estimated value of the goods is less than the total estimated cost of the removal, storage and sale of the goods.
(2)Where a residential tenancy agreement is terminated and goods are left on the premises that were subject to the agreement and have not been removed for destruction or disposal under subsection (1), the lessor shall store them in a safe place and manner for a period of not less than 60 days after the day on which the agreement is terminated.
Penalty for this subsection: a fine of $5000.
The Acting Principal Registrar concluded by telling the applicant:
Therefore the relief that you are seeking by way of an interlocutory injunction is already governed by the RTA.
The Acting Principal Registrar then said that the registry would not accept the documents for filing until such time as the applicant had obtained the leave of a judge. She informed him of the process by which he could do so. Although O 67 r 5 requires that the application for leave be made to a judge in chambers ex parte, the Acting Principal Registrar informed the applicant that it was to be made by Form 67, which is a notice of originating motion.[1]
[1] I note that this is because there is no specific form for an ex parte application that originates proceedings, as was the case here.
Accordingly, on 8 January 2020, the applicant filed a notice of originating motion seeking the leave of a judge to file the original documents. It was supported by an affidavit sworn by the applicant on 8 January 2020. The notice and affidavit, which annexed the original documents, were received for filing that day and the matter was listed on an urgent basis to be heard this morning ex parte.

The hearing on 9 January 2020

The applicant appeared in person, unrepresented. There are two plaintiffs named in the proceedings which the applicant seeks to commence, being the applicant and his wife, Meity Hunter. Ms Hunter did not appear at this hearing, but I am content to accept what was said by the applicant as representing the position of both prospective plaintiffs.
The defendants named in the proceedings are the lessors of the premises from which the plaintiff were evicted, namely Melissa Di Vincenzo and Mario Di Vincenzo.
The question of whether leave should be given to the applicant to file the original documents requires consideration, on a preliminary basis, of the merits of the application he intends to make for review of the Magistrates Court order and for an interlocutory injunction. If there is not an arguable case in respect of either the judicial review point or the application for an injunction, then, in circumstances in which there is a statutory scheme that addresses the manner in which the property of the applicant and his family is to be dealt with by the lessors, with a penalty attaching to a failure to deal with the property appropriately, the commencement of proceedings in this court would properly be regarded as an abuse of process, and leave to file the documents should be refused.[2]
[2] See Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates[2018] WASC 213 (Vaughan J) [26] ‑ [29] for a comprehensive review of the relevant principles and the meaning of 'abuse of process'. See also Re Rules of the Supreme Court 1971 (WA); Ex Parte Nikoloff [2019] WASC 263 (Hill J); Re Rules of the Supreme Court 1971 (WA); Ex Parte Prazmo[2019] WASC 243 (Strk AJ); Re Rules of the Supreme Court 1971 (WA); Ex Parte Ruba[2019] WASC 92 (Strk AJ).
Therefore it was appropriate to hear the applicant's submissions in respect of the merits of his intended application. The applicant was in a position to present his argument in respect of both matters.
I note at this point in time that I have had regard to the fact that the applicant is unrepresented. However, he has experience in dealing with matters of this kind, having previously appeared as a 'McKenzie friend' for his wife in proceedings which involved an intended eviction under the Residential Tenancies Act.[3] I was satisfied that the applicant was in a position to properly present his case. Further, during the course of exchanges between the Bench and applicant, he was informed of potential difficulties or obstacles affecting his application and the arguments that he was putting, both in respect of the law and in respect of factual matters, where there appeared to be no support for factual assertions in his affidavit.
[3] Sawitri v Robson [2019] WASC 82; Sawitri v Robson [No 2] [2019] WASC 145.

The structure of these reasons

I propose, therefore, to rehearse some of the history in this matter as appears from the applicant's affidavit and the documents attached to his affidavit, and to then deal with the orders that he seeks and his arguments in support of those orders. I will then deal with the question of whether there is any merit to the arguments the applicant has put forward in support of the application for judicial review and the interlocutory injunction, in particular, with a view to determining whether there is an arguable case in respect of either of those matters.
I will then express my conclusions in respect of whether leave should be granted to the applicant.

The history of the matter

On 29 June 2019, the applicant and his wife signed a standard residential property lease under the Residential Tenancies Act. The schedule of that lease is an attachment to the applicant's affidavit.[4] I do not have the balance of the lease, but the schedule is sufficient to indicate that the owners of the property that was being leased in Stirling are Mario and Melinda Di Vincenzo. No address was included in the schedule for the owners; nor was there a name or address for the owners' agent, although I do not have any evidence as to whether they were represented by an agent in the process of entering into the lease.
[4] Affidavit of Shane Hunter sworn 7 January 2020, attachment 7. (This is the affidavit on which the applicant proposes to rely in the proceedings for review and interlocutory injunction to be commenced by Originating Motion.) I note that the attachments commence with number 7 (apparently using the page number as part of the affidavit).
I mention the absence of an address for the lessors because the applicant submitted that the failure by the lessors to include their address on the lease should be regarded as indicative of an attitude on their part, which has persisted, of refusing to provide their residential address. As I have said, I do not have the whole of the lease document, but assuming that no address is referred to elsewhere on the lease, the absence of the address appears not to have been a difficulty for the applicant or his wife at the time they entered into the lease agreement. Clearly, they were prepared to do so and to take the benefit of the lease by residing at the premises they were leasing under the agreement for a term of 12 months, commencing on 5 July 2019.
The next significant event is that, by a notice of termination for non‑payment of rent, being Form 1B under the Residential Tenancies Act, the lessor gave notice to the applicant of termination of the residential tenancy agreement and required him to deliver up vacant possession of the premises in Stirling. The notice stipulated that the date on which vacant possession of the premises was to be given was 31 August 2019. It stated:
This notice of not less than seven days is given to you on the ground that you have breached the agreement to pay rent and the rent or any part of the rent due remains unpaid.
It referred to s 62 of the Residential Tenancies Act 1987.
The applicant says that he received the Form 1B on the afternoon of Saturday, 24 August 2019, at approximately 6.30 pm, when Mr Di Vincenzo attended the property and, as the applicant describes it, 'commenced to make a series of aggressive and loud demands'.[5] Of course, I am not in a position, without having heard from the respective defendants, to make any finding in respect of what occurred. In any event, it is not necessary, given the nature of the application with which I am dealing. What the affidavit does indicate is that the applicant had the Form 1B by 24 August 2019.
[5] Affidavit of Shane Hunter sworn 7 January 2020 [5].
The next significant event is that, on 4 September 2019, the lessors made an application for a court order under s 72 of the Residential Tenancies Act by the use of Form 12 (Application for Court Order) for termination of the tenancy agreement and repossession of the property. In that form,[6] the lessors were named and they provided a post office box address in Osborne Park. I will come back later to the requirements of the relevant legislation in terms of the contents of this form. The respondent in the application was named as the applicant and his wife at the premises they were occupying at that time in Stirling under the lease agreement. The reasons for the application were stated as follows:
Termination of residential tenancy agreement due to non-payment of rent.
Notice of termination for non-payment of rent was served to Shane Hunter on 24.08.19 (Form 1B).
[6] Affidavit of Shane Hunter sworn 7 January 2020, attachment 11.
The order required pursuant to the application was:
Termination of tenancy agreement and gain possession of the premises.
Disposal of full bond moneys to the applicant due to unpaid rent.
Recovery or all outstanding charges and obligations pursuant to the lease agreement dated 29 June 2019.
As I said earlier, the application was dated 4 September 2019 and included a notice of hearing that the application was set down for hearing in the Magistrates Court in Perth on Thursday, 26 September 2019, at 9.30 am. The applicant says that he received that form by mail on 8 September 2019.[7]
[7] Affidavit of Shane Hunter sworn 7 January 2020, [6].
The applicant states that on 26 September 2019, he attended the hearing at which time he says:[8]
We submitted a receipt payment of approximately $3000 which had been issued by a family friend. This was to cover all rent and costs. An adjournment was placed to allow for this to be processed.
[8] Affidavit of Shane Hunter sworn 7 January 2020, [7].
He says, in a statement that I do not fully understand, that the payment 'was not received' and that he and his wife were advised that it had been issued in error to another account.[9] In any event, it is not necessary to go further into the details of that matter.
[9] Affidavit of Shane Hunter sworn 7 January 2020, [7].
What is of significance is that, on 3 October 2019, he again attended the Perth Magistrates Court for a hearing and that, at that hearing, the magistrate 'instructed series of key dates for documents and argument to be lodged'.[10] In other words, orders were made to that effect.
[10] Affidavit of Shane Hunter sworn 7 January 2020, [8].
The orders that were made on 3 October 2019 are attachment 12 of the applicant's affidavit, and state:
1.The Parties are to lodge and serve Statements of Intended Evidence by 10 October 2019.
2.The Parties are to lodge and serve legal submissions by 17 October 2019.
3.All parties are to attend in person at trial.
4.The Application is adjourned to trial on 11 December 2019 at 10.15 am at the Magistrates Court of Western Australia, Central Law Courts, 501 Hay Street, Perth.
So, the applicant was aware on that day of what was required, so far as further process was concerned, and when the trial was to be held. I note that there is no evidence in the applicant's affidavit that on either 26 September 2019 or 3 October 2019 he raised any issue in respect of the lack of a residential address for service in the Application for Court Order (Form 12) that had been lodged by the lessors. It would appear that no order was sought for the lessors to provide an address for service, as no such order appears in the orders made on 3 October 2019.
The applicant states that a settlement agreement was sent to the lessors asking them for a signature and giving an undertaking to release payment.[11] This of course indicates that, notwithstanding the absence of an address for service, the applicant was able to forward material to the lessors. He claims that he did not receive any response to his emails and the requests that he made in the hope that the application before the Magistrates Court would be withdrawn.
[11] Affidavit of Shane Hunter sworn 7 January 2020, [9].
At the hearing, the applicant claimed that he was not able to lodge documents with the Perth Magistrates Court, because of the lack of service address for the lessors (who were the applicants in that proceeding). I am not prepared to accept that submission. There was nothing at law to prevent the applicant from lodging documents in the Perth Magistrates Court. The question of service was a separate issue which would affect any reliance upon documents at a later time if they had not been served, but they were required to be lodged before they could be served. It seems to me there is simply no foundation for the applicant's proposition that he could not put before the Magistrates Court, if he so chose, the case that he intended to make at the trial.
On 11 December 2019, the trial took place in the absence of the applicant and his wife.[12] The applicant says that this was due to a series of 'heavy medications' with which he was being treated, which resulted in extreme drowsiness.[13] He says that this related to an ongoing medical condition for which he requires specialist treatment, and that he had been receiving that treatment for the previous three months.[14]
[12] Affidavit of Shane Hunter sworn 7 January 2020, [10].
[13] Affidavit of Shane Hunter sworn 7 January 2020, [10].
[14] Affidavit of Shane Hunter sworn 7 January 2020, [10].
The applicant fails to explain in his affidavit why his wife did not attend the hearing. Further, if it was intended that he would put the case for himself and his wife in the Magistrates Court, and he was not in a position to attend, he has failed to explain why his wife could not inform the court of those facts.
The materials contained in the applicant's affidavit do not indicate whether the hearing on 11 December 2019 was before a magistrate or a registrar. The applicant informed me at the hearing that the orders were made by a magistrate.

The trial having proceeded in the absence of the applicant, orders were made on 11 December 2019. The orders of significance for present purposes are the first two, namely:[15]
1.The Residential Tenancy Agreement for ('Agreement') for premises at [the address in Stirling] ('Premises') is terminated and the Tenants are ordered to deliver up possession of the said Premises to the Lessors.
2.The orders for termination of the Agreement and possession of the Premises shall operate from 18 December 2019.
[15] Affidavit of Shane Hunter sworn 7 January 2020, attachment 13.
The applicant states that, on 19 December 2019, Melissa Di Vincenzo and an older gentleman came to his property with a removal van, and that they said that the applicant and his family had to vacate the property immediately and give Ms Di Vincenzo vacant possession.[16] The applicant makes allegations about the conduct of Ms Di Vincenzo and the other gentleman, but I do not propose to go into the detail of that, because, at this point in time, I have no basis upon which I could weigh the reliability of what is said by the applicant in his affidavit about those matters. I accept, however, that it was not a friendly encounter, and that the applicant ended up closing the door on Ms Di Vincenzo and the other gentleman.[17]
[16] Affidavit of Shane Hunter sworn 7 January 2020, [11].
[17] Affidavit of Shane Hunter sworn 7 January 2020, [11].
The applicant states that, soon after, Mario Di Vincenzo attended the property and demanded that the applicant and his family vacate.[18] He states that Mr Di Vincenzo said he would call the police and have the applicant and his family thrown out. The applicant claims that he told Mr Di Vincenzo to seek legal advice as to the correct procedures, as Ms Di Vincenzo's understanding was incorrect.
[18] Affidavit of Shane Hunter sworn 7 January 2020, [11].
I am not prepared to rely on the assumption in what is said by the applicant in his affidavit that the lessors had adopted an incorrect approach to the enforcement of the eviction order. However, I am prepared to accept, as the applicant alleges in his affidavit, that, after the applicant closed the door on Mr Di Vincenzo, Mr Di Vincenzo knocked on the door and said:[19]
We can do this the easy way or the hard way.
[19] Affidavit of Shane Hunter sworn 7 January 2020, [11].
The applicant claims that he responded:[20]
We will do this the correct legal way.
[20] Affidavit of Shane Hunter sworn 7 January 2020, [11].
The significance of that exchange is that the applicant intends to rely on the statements of Mr Di Vincenzo in the application for an interlocutory injunction, as indicating an attitude or an intention that he may cause detriment to the applicant in respect of his belongings.
The applicant goes on to say that, on Friday, 5 January 2020, at approximately 9.00 am, a bailiff, acting as an agent for the Sheriff's Department, attended at the leased premises, accompanied by two police officers from the Scarborough Police Station.[21] It is not necessary to recite all that is said by the applicant in his affidavit. What is of significance is that the applicant claims he was told by the bailiff that he and his family had 15 minutes to leave the house. The applicant says:[22]
I then explained that this was the first I had been [made] aware of this order being enforced and asked why no notice had been given.
[21] Affidavit of Shane Hunter sworn 7 January 2020, [13].
[22] Affidavit of Shane Hunter sworn 7 January 2020, [13].
It is sufficient to say that that the applicant goes on to say that the exchange from that point onwards was hostile, and that he was effectively told by the bailiff that he would not countenance any delay.
The applicant claims that he spoke with the police officers.[23] He does not refer in his affidavit to anything said by the officers, but at the hearing he said, in effect, that they simply indicated they were only there to assist the bailiff. There is no evidence in the affidavit to suggest that the applicant made any request, at that point in time, for further time to be able to collect his belongings and for the family to take at least those things that could be carried away from the premises.
[23] Affidavit of Shane Hunter sworn 7 January 2020, [13].
The applicant says that his family departed with a small bag of clothing, toiletries and some documents.[24]
[24] Affidavit of Shane Hunter sworn 7 January 2020, [13].
The applicant says that subsequently, as a result of searches, he was able to identify premises in Stirling where the lessors may be residing.[25] He claims to have gone there on 6 January 2020 and knocked on the door but that there was no response. He says that he then left a letter titled 'Final Letter of Demand' in the letterbox and on the front door.[26] A copy of the letter is attachment 18 of the applicant's affidavit.
[25] Affidavit of Shane Hunter sworn 7 January 2020, [16].
[26] Affidavit of Shane Hunter sworn 7 January 2020, [18].
Subsequent to that attendance at those premises, the applicant says that, on 7 January 2020, he received an email from Mr and Ms Di Vincenzo. The email is attachment 19 of the applicant's affidavit. The applicant assured the court that it is the only correspondence from Mr and Mrs Di Vincenzo in respect of the question of collection of property from the premises. In that email, the applicant and his wife are informed as follows:[27]
Be advised that the Abandoned Goods located at [the leased premises in Stirling], are available for collection at the following times ONLY:
-Tuesday, 7th January 2020 between 10am to 11am (Strictly 60 minute duration ONLY); OR
-Wednesday 8th January 2020 between 10.30am to 11.30am (Strictly 60 minute duration ONLY). (underlining and emphasised text in original)
[27] Affidavit of Shane Hunter sworn 7 January 2020, attachment 19. The address of the leased premises is anonymised to protect the privacy of the lessors.
It goes on to say that the arrangements are conditional on the following terms:
ONLY a suitably qualified and licensed removalist producing acceptable valid photographic identification (i.e. Valid Drivers License (sic) and Business Card), will only be permitted to enter the property located at [the Stirling address]. Furthermore, that the suitably qualified and licensed removalist will be required to produce a signed letter of authority from [the applicant and his wife] addressed to the owners of [the Stirling address] authorising the collection of the Abandoned Goods, located at the [Stirling address].
The email goes on to say to the applicant and his wife:
As you have been previously notified by the bailiff and WA Police on 30 January 2020, Shane Mervyn Hunter and Meity Sawitri (alias Ayu Hunter) or any other persons are NOT permitted or authorised in any way to be on the premises located at [the Stirling address]. In the event that you or any other person(s) attend the premises located at [the Stirling address], WA Police will be notified immediately. (underlining and emphasis in original)
Finally, the email goes on to indicate the process that would be followed in the event that the goods are not collected as follows:
Given you have been through this process on many occasions previously, you would be aware that your abandoned goods that have a sale value more than the cost to remove, store and sell the goods at public auction (if applicable) will be stored for at least 60 days, and you will be notified in due course. You will be required to pay for the removal and storage costs in order to claim the abandoned goods and if these are not claimed within 60 days, these will be sold at a public auction.
The way in which the obligations and rights in respect of abandoned goods under the Residential Tenancies Act 1987 was described was not entirely correct, as the provisions of s 79(1), as I indicated earlier, are to the effect that, after the expiration of two days from the termination of the agreement, the lessor may remove and destroy or dispose of the goods, if the goods are perishable foodstuffs or the estimated value of the goods is less than the total estimated cost of the removal, storage and sale of the goods. It is implied of course that, if the value is greater than the cost of the removal, storage and sale of the goods, then the goods cannot be destroyed or disposed of. As I read the provisions of s 79 of the Residential Tenancies Act, they are concerned with the totality of the goods that are said to have been abandoned. It is not a matter of a lessor identifying individual items and determining whether those items are less than the value or the total estimated costs of the removal, storage and sale of the goods. It is a question of whether the totality of the goods are of a value that exceeds the cost of the removal, storage and sale of the goods, which then places the obligation on the lessor to ensure that the goods are stored for a period of not less than 60 days.
The applicant has not described in any detail, in his affidavit, what property there is at the premises. He refers simply to the fact that, within the belongings, are a number of items that belong to his employer:[28]
[s]uch as computer, documents, commercial in confidence, company documents, ASIC documents.
[28] Affidavit of Shane Hunter sworn 7 January 2020, [20].
The applicant claims in his affidavit that:[29]
there is a risk that in light of the landlords (sic) continued efforts to ignore the Legislation as it applies to all parties that they will act with ignorance towards our rights and undermine our position.
[29] Affidavit of Shane Hunter sworn 7 January 2020, [20].
There is no evidence before me of any such indication having been given by the lessors. Whilst it is unfortunate that there appears to have been hostility between the lessors and the applicant in their final dealings before the applicant and his family were evicted, and whilst it may be said that the attitude of the lessor in the email that is attached, on the assumption that it is the only correspondence sent by the lessor in terms of what will happen in respect of the abandoned goods, may be questionable in terms of the prohibition placed on the applicant from retrieving property from the house, there is nothing to indicate that the lessor intends to destroy or damage any property. In fact, the indications are that the lessor (the email was sent by Mario Di Vincenzo) is well aware of his obligations under the Residential Tenancies Act for the storage of goods if the value is more than the cost of removal and storage of the goods.
The applicant has not sought to put before me any evidence of any dealings since the email was sent. There is no evidence in the affidavit as to why a removalist could not be deployed to obtain the belongings from the previously leased premises in Stirling.
The applicant purported to inform me from the bar table that a removalist he had approached was uneasy about having to provide identification. Such a reaction would seem to me to be somewhat unusual, if proof of identification was the basis upon which the lessors were wanting to ensure that the person who was collecting the items was collecting them on behalf of the applicant and his family and not someone else. But, in any event, there is no evidence of that before me, and there is no evidence of any other steps taken by the applicant to secure the removal of his property from the premises.
Those, then, are the factual matters on which the applicant relies, as contained in the applicant's affidavit, and my comments in respect of some of those matters.

Orders sought

The orders that the applicant seeks by the notice of originating motion that was originally filed on 6 January 2020 are numerous. In essence, however, they come down to the following key matters, as drafted by the applicant:
1.an order by the court by means of urgent interlocutory injunction to secure the personal belongings and assets as well as prevent the destruction of personal belongings and property owned by the plaintiffs that remain at the property they were forcibly evicted from on 5 January 2020 at 9 am;
2.an interlocutory injunction to be granted with regards to the order given by magistrate on 11 December 2019;
3.an order by the court to review the magistrate's order and, if found to be a denial of natural justice, to dismiss the application as made by the defendant
It can be said immediately that the last of those orders is misconceived, in that any review of the matter would at most result in the decision being set aside and the matter having to be reheard.
The next order that is sought is in effect for a declaration that the lease be reinstated and that the plaintiffs be given immediate access to the property.
It is not necessary to go beyond those orders, because the essence of the application is that the orders made in the Magistrates Court were in breach of natural justice or without jurisdiction.
Quite separately, the application that is made in relation to the interlocutory injunction is based on a concern about the safety of the property belonging to the applicant and his family.

Proposed application for review of the Magistrate's decision

It is convenient to deal first with the basis of the applicant's argument in respect of the application for an order for review.
In essence, it comes down to this: that, because the lessors failed to put an address for service in the Application for Court Order that was a residential address, that application was invalid. In fact, the argument is that the application could not be made without the notice of termination for non‑payment of rent having been validly issued, and the absence of any address for the lessor on that document also invalidates the notice, and consequently the application for the court order.
The basis of the applicant's argument is that r 102(1) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) ('the Civil Proceedings Rules') provides that a document lodged in relation to a case must contain a residential or business address for service. I accept that the rule applies to a document such as Form 12 that is lodged to commence proceedings for an eviction order under the Residential Tenancies Act.
Rule 9 of the Magistrates Court (General) Rules 2005 (WA) ('the General Rules') provides that a registrar may refuse to accept for lodging any form that does not contain the information required by the form and any document that does not comply with the rules of court made by the court or with any other written law. It is to be noted that r 9 of the General Rules is in permissive terms. It does not oblige a registrar to refuse to accept for lodging a form that does not contain the information required by the form.
The applicant's argument, in essence, is that the failure of the form to contain information that is required by r 102 of the Civil Proceedings Rules means that it was invalid, and that, therefore, the proceedings before the Magistrate on 11 December 2019 occurred without a proper foundation for the jurisdiction to be exercised. In other words, the decision that was made and the orders that were made were without jurisdiction. That argument is without merit. I will return to that argument shortly.
The applicant's argument is also based on a claim that there was a denial of natural justice. In my view, that argument is misconceived. Nothing that he has pointed to in relation to the proceedings in the Magistrates Court would indicate that he was at any time denied the right to be heard or to file documents in support of his case. Nor is there any evidence that, on 11 December 2019, the proceedings before the Magistrate occurred in any irregular way.
The real foundation for the applicant's argument is the jurisdictional point. In that regard, I have been very much assisted by the decision of Smith J in Ashwin v Housing Authority,[30] a case in which the applicant sought review of orders made in the Magistrates Court under s 72 of the Residential Tenancies Act terminating a residential tenancy agreement and ordering the delivery of possession of the premises. In that case, her Honour was required to deal, in part at least, with an argument that the application for orders was invalid (for want of jurisdiction) because it did not have the applicant's signature, although the applicant was named on the document.
[30] Ashwin v Housing Authority [2019] WASC 144 (Ashwin).
In Ashwin, at [3] ‑ [7], Smith J set out the principles that apply in respect of an application for review under s 36 of the Magistrates Court Act 2004, in particular where the challenge is on the basis of jurisdictional error. It is not necessary to restate all that was said by her Honour in those passages. It is sufficient to say that her Honour relied on the explanation given by Beech J in Re Glustein; Ex parte Anthony[31] in respect of the nature of the judicial review under s 36, where his Honour pointed out that proceedings under s 36 are concerned with the legality of decisions, not with the merits of decisions. His Honour said:[32]
Where, as here, the applicant for relief contends that the orders of the Magistrates Court were made without jurisdiction, the primary relief that flows from such a conclusion is that the order be set aside. If successful, a review application results in a rehearing of the application the subject of the original decision.
The court does not make the decision or make other orders in place of the orders set aside. A court engaged in judicial review does not have a general power to make orders aimed at remedying any injustice that flowed from things done as a consequence of or in reliance on the impugned decision.
[31] Re Glustein; Ex parte Anthony [2014] WASC 381.
[32] Re Glustein; Ex parte Anthony [57].
In Ashwin, Smith J said:[33]
To grant an application for a review order made pursuant to s 36 of the Magistrates Court Act and order 56A of the Rules of the Supreme Court 1971 (WA), the court must be satisfied that the application raises an arguable case that jurisdictional error can be established.
[33] Ashwin [4], referring to Re Magistrate T Watt; Ex Parte The Housing Authority [2015] WASC 140 (Mitchell J), [28], Re Gluestein; Ex Parte Anthony [25], and s 26(2) of the Residential Tenancies Act 1987.
As her Honour noted, the court must be satisfied that the case has reasonable prospects of success.[34]
[34] Ashwin [4].
The judicial review that is provided for in s 36 of the Magistrates Court Act 2004 effectively replaces the remedies or relief that were available by way of writs of prohibition, mandamus and certiorari. As Smith J noted in Ashwin, the provision is intended to preserve the substantive law of judicial review, which is applicable to applications under s 36 of the Act.
Smith J then went on to say the following in respect of jurisdictional error, which I respectfully adopt:[35]
Jurisdictional error refers to a failure to comply with one or more statutory preconditions or conditions, to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it.
To describe a decision as involving jurisdictional error is to describe that decision as having been made outside jurisdiction. That is, the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her or does something which he or she lacks the power to do. (footnotes omitted)
[35] Ashwin[8] ‑ [9].
Her Honour then referred to the High Court decision of Kirk v Industrial Court of New South Wales[36] where the plurality observed that it is not possible to mark the meets and bounds of jurisdictional error.[37]
[36] Kirk v Industrial Court of New South Wales [2010] HCA 1, (2010) 239 CLR 531.
[37] Kirk v Industrial Court of New South Wales [71] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); Ashwin [10].

As Smith J noted in Ashwin:[38]
[38] Ashwin [10]. I have omitted parts that are not relevant for the purposes of this application.
Their Honours did, however, refer at [71] to the categories outlined by Professor Mark Aronson in his paper 'Jurisdictional Error without the tears'. In summary, those categories are:
(a)a mistaken assertion or denial of the very existence of jurisdiction;
…
(d)acting on a mistaken assumption or opinion as to the existence of a jurisdictional fact or other requirement when the relevant Act makes the validity of the decision-makers acts contingent on the actual or objective existence of those things rather than on the decision-maker's subjective opinion;
(e)disregarding a relevant consideration which the Act required to be considered or paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute preconditions to the validity of the decision-maker's act or decision; and
…
(h)breaching (the hearing or bias rules of) natural justice.
(footnotes omitted)
I have already dealt with the question of natural justice.
Where the argument is that jurisdiction was lacking because of an omission of information in a form initiating proceedings the court must be satisfied that the inclusion of the information on the form was a precondition for the exercise of jurisdiction.
In Knaggs v Director of Public Prosecutions (New South Wales) & Anor,[39] the New South Wales Court of Appeal dealt with a situation in which a court attendance notice (shortened to CAN), which included several boxes setting out the required information, had been served on the claimant who was charged with an offence of assault occasioning bodily harm. One box, which was headed 'Details of Offence/s', included the particulars of an offence of 'assault occasioning actual bodily harm', contrary to s 59(1) of the Crimes Act 1900 (NSW). As the headnote in the Australian Criminal Reports indicates, the claimant was convicted in the local court and successfully appealed against that conviction in the District Court. He then filed a summons in the Common Law Division of the Supreme Court seeking orders in the nature of certiorari and prohibition and declarations that the conviction was invalid. The claimant raised for the first time that the court attendance notice was defective and invalid and that it did not comply with s 175(3)(b) of the Criminal Procedure Act 1986 (NSW), in that it failed to briefly state the particulars of the alleged offence. The Court of Appeal, in a judgment given by Campbell JA (with whom Mason P and Tobias JA concurred), dismissed the summons. Again, the headnote aptly summarises the Court's conclusion as follows:
Nothing in the statute states that proceedings purportedly commenced without complying with s 175(3)(b) will be invalid or a nullity. Thus, it is only if there is a necessary implication to that effect that such a consequence would arise.
[39] Knaggs v Director of Public Prosecutions (New South Wales) & Anor (2007) NSWCA 83; 170 A Crim R 366 (Knaggs).
In Knaggs, the court decided that, as a matter of construction of the legislation, it could not be concluded that the legislation intended that a contravention of s 175(3)(b) would result in the invalidity of the court attendance notice or of any conviction resulting from proceedings commenced by such a notice. In the judgment of Campbell JA, reference is made to the High Court decision of Berowra Holdings Pty Ltd v Gordon.[40] In Berowra Holdings the majority dealt with the question of when a decision may be regarded as invalid or a nullity because of a failure to comply with a statutory requirement.[41] Their Honours said:[42]
In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is in law no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged all parties to the litigation are subject to it.
None of the above denies the possibility of a defendant denying the plaintiff's right to invoke the jurisdiction of the court, for example, where the plaintiff's right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law and not outside it. Accordingly, the defendant may challenge at an interlocutory level the strength of the plaintiff's alleged case by seeking to have the plaintiff's action struck out for failure to disclose a reasonable cause of action or dismissed as incompetent. Alternatively, the defendant may have recourse to judicial review by a superior court challenging the right of an inferior court to adjudicate the plaintiff's claim and seeking orders to prevent the inferior court continuing to hear the claim. However, the invocation of jurisdiction ordinarily enlivens the authority of the court in question at least in the first instance to decide whether it has jurisdiction (Re Macks; Ex parte Saint (2000) 204 CLR 158).
[40] Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 (Berowra Holdings).
[41] Berowra Holdings (Gleeson CJ and Gummow, Hayne, Heydon & Crennan JJ).
[42] Berowra Holdings [15] ‑ [16], 371.
The majority in Berowra Holdings went on to say:[43]
In the joint judgment of five members of this court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (at 505 [72]), reference was made to 'a basic rule' that a legislature does not intend to cut down the jurisdiction of the courts 'save to the extent that the legislation in question expressly so states or necessarily implies'.
[43] Berowra Holdings [31], 375.
In Knaggs, Campbell JA went on to say:[44]
The requirement created by s 175(3)(b) is an imperfect obligation in the sense that it does not make express provision for the consequences of failure to comply with it. Nothing in the statute states that proceedings purportedly commenced without complying with s 175(3)(b) will be invalid or a nullity or in any other way of no effect. Thus, it is only if there is a necessary implication to that effect that such a consequence will arise.
In a situation like the present, where it is not alleged that the CAN fails to identify all the elements of an offence, I do not find in the statute any necessary implication that any failure of the CAN to 'briefly state the particulars of the alleged offence' should result in either the CAN or a conviction in proceedings begun by the CAN being void.
[44] Knaggs [39] ‑ [40], 376.
Returning to the circumstances of this case, r 102(1) of the Civil Proceedings Rules can also be said to be 'imperfect', in the sense that it does not provide for consequences in the event of a failure to comply by the inclusion of a residential or business address for service. Therefore, as there is no express provision in the statute stating that proceedings purportedly commenced without complying with that particular rule will be invalid or a nullity or in any other way of no effect, it would only be if there is a necessary implication to that effect that such a consequence will arise. In my opinion there is no such necessary implication to be found either in the Magistrates Court Act or the various rules under that Act or in the Residential Tenancies Act that would invalidate the proceedings and invalidate the jurisdiction which the court has to hear the application to terminate the tenancy agreement and order possession of the premises.
I note that in Ashwin, Smith J came to the view that the fact the application was not signed did not invalidate the application. Her Honour did note, however, that s 18 of the Residential Tenancies Act, which provides that any application under the Act is to be made in writing in a form approved by the Minister (which appears to be the case in relation to Form 12), did not expressly require the signature of an applicant on the form that was approved by the Minister. However, as her Honour also said, nor does s 18 specify that strict compliance with the prescribed form is necessary. In my view, that is of significance in this particular case.
It is also relevant to have regard, as did Smith J in Ashwin, to s 74 of the Interpretation Act 1984 (WA) which provides as follows:
Where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance, nor likely to mislead, shall not invalidate the form used.
There is nothing in the provisions of the Civil Proceedings Rules which would deny the application of that section to the forms under the Residential Tenancies Act, in particular the form that must be completed to commence proceedings for termination of an agreement and possession of property.
In my view, therefore, the proposition that the magistrate acted without jurisdiction or denied the applicant natural justice, because of the absence of the address for service for the lessors (being the applicants in those proceedings) in Form 12, is not arguable, and the application to review the order of the magistrate on that basis, in my view, would be doomed to fail.[45]
[45] Which is a basis for concluding that an application constitutes an abuse of process: Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [29].
The conclusion is reinforced, in my view, by the fact that the applicant engaged in the proceedings until the time of the trial, when he failed to appear. While one can accept that he may have been incapacitated to attend the trial, as I noted earlier, there is no explanation why his wife (the second proposed plaintiff) was not able to attend to inform the court of his situation or to put the case for the respondents in those proceedings.
In any event, everything that had happened up until that point in time was consistent with an acquiescence by the applicant in the jurisdiction of the court being exercised.

Conclusion in relation to proposed originating summons for review order

In the circumstances, therefore, I have reached the conclusion that it would be an abuse of process to allow the applicant to file the notice of originating motion, insofar as it purports to challenge the decision of the magistrate to make the orders to which I referred earlier.
If I am wrong in the conclusion that leave should be denied to file the documents, I am satisfied in any event that there is no arguable basis for the order for review. That is because the applicant's case for a review order does not have reasonable prospects of success. In my view, the application would inevitably be refused.

Proposed application for interlocutory injunction

I turn to the application for the interlocutory injunction.
Although there is not any proceeding in this court in respect of which an injunction could be granted on an interlocutory basis, the applicant has submitted that the court has power under s 25(9) of the Supreme Court Act 1935 (WA) to grant an injunction in circumstances where it is necessary to 'prevent any threatened or apprehended waste or trespass'. I accept that the argument put by the applicant is that there is an apprehension that a trespass would occur in respect of his property if Mr and Ms Di Vincenzo are not prevented, by the issue of an injunction, from dealing with the property in a way that is adverse to his interests or his family's interests.
As I noted in discussing the evidence, there is no evidence before me that would satisfy me, or that would even raise as a reasonable prospect, that there is an apprehension that Mr and Ms Di Vincenzo or either one of them would act in a manner that is inconsistent with their obligations under the Residential Tenancies Act in respect of abandoned goods.
In those circumstances, it seems to me that the view that was taken by the registrar was appropriate, namely, that relief in respect of the applicant's goods and the protection of his goods are adequately provided for by s 79 of the Residential Tenancies Act, and it would be an abuse of process to grant an injunction, particularly on an ex parte basis, that would affect the ability of the lessors in this case to exercise their rights under the Residential Tenancies Act.
I earlier referred to the restrictions that have been placed by the lessors on the manner in which the property could be collected from the premises, and I expressed my view that they were perhaps somewhat onerous in preventing the applicants from being present to identify the items that need to be removed from the premises. However, from what the applicant has said, it would appear that, in essence, everything at the premises, in terms of chattels, is the property of the applicant and his wife. In those circumstances it should not be difficult to identify the property for a removalist to take from the premises.

Conclusion in relation to proposed application for interlocutory injunction

In any event, the intended application for an injunction is doomed to fail on the basis that there simply is no evidence to satisfy the court that there is a reasonable apprehension that the property would be dealt with in a manner that would involve a trespass.
In those circumstances I would refuse leave to the applicant in respect of the filing of the notice of originating motion insofar as it seeks the interlocutory injunction.
Even if I am not correct in concluding that leave should be refused, I would still conclude that there is no basis upon which an injunction could reasonably be issued, and so that application would inevitably fail.

Conclusion – leave to file documents refused

For those reasons the application for leave to file the documents to commence the proceedings for judicial review and for an interlocutory injunction is refused.
So far as the application relates to other orders, they necessarily fall away, as I explained in the course of my reasons, because the foundations for those other orders are that an application for an order for review would be granted or an interlocutory injunction would be granted, or both of those matters would occur. Neither has occurred and, therefore, leave is refused in respect of the filing of the originating motion in all respects.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca
20 JANUARY 2020