Lakovski v Baker
[2010] WADC 94
•25 JUNE 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LAKOVSKI -v- BAKER [2010] WADC 94
CORAM: DERRICK DCJ
HEARD: 11 JUNE 2010
DELIVERED : 25 JUNE 2010
FILE NO/S: APP 7 of 2010
BETWEEN: DENNI LAKOVSKI
Appellant
AND
VANGY MAREE BAKER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE LANGDON
File No :AR 575 of 2009
Catchwords:
Appeal against decision to dismiss minor case claim on basis Magistrates Court did not have jurisdiction - Appeal not made on ground provided for in Magistrates Court (Civil Proceedings) Act 2004 - Ground of appeal struck out - Application to amend Notice of Appeal by adding ground of appeal - Factors relevant to determination of application to amend Notice of Appeal - Denial of natural justice
Legislation:
District Court Rules 2005 (WA)
Family Court Act 1997 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Minor Cases Procedure) Rules 2005 (WA)
Result:
Application to amend Notice of Appeal allowed
Appeal allowed
Representation:
Counsel:
Appellant: In person
Respondent: In person
Solicitors:
Appellant: Not applicable
Respondent: Not applicable
Case(s) referred to in judgment(s):
Burns v Grigg [1967] VR 871
Cameron v Cole (1944) 68 CLR 571
Gallo v Dawson (1990) 93 ALR 479
Gollan v Nugent (1988) 166 CLR 18
Hoskins v Van Den‑Braak (1998) 43 NSWLR 290
Matta v R (1995) 126 FLR 127
Steffan v R (1993) 30 NSWLR 633
Taylor v Taylor (1979) 143 CLR 1
DERRICK DCJ: The appellant appeals against the decision of her Honour Magistrate Langdon dismissing his minor case claim against the respondent. The learned Magistrate dismissed the claim on the basis that the Magistrates Court of Western Australia did not have jurisdiction to deal with the claim.
The appellant's minor case claim
The appellant and the respondent were involved in a relationship from December 2006 until in or around 5 January 2009. The breakdown of the relationship was not amicable.
On 15 April 2009 the appellant instituted a minor case claim against the respondent under Pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) ("the Act"). The appellant's minor case claim ("the Claim") related, in the main, to various items of property which the appellant alleged the respondent had unlawfully removed from his house or unlawfully damaged following the breakdown of their relationship. The total value of the property the subject of the Claim was alleged to be $8,992.00.
On 25 May 2009 the respondent filed a notice of intention to defend the Claim.
On 28 May 2009 the respondent filed a statement of defence to the Claim. In her statement of defence the respondent denied the vast majority of the appellant's allegations. Where she admitted removing or damaging items of property she asserted that her conduct was accidental or otherwise justified.
On 16 June 2009 a pre‑trial conference took place before a Registrar of the Magistrates Court. At the pre‑trial conference an order was made that the appellant file and serve within 28 days a statement of minor case claim pursuant to r 23A of the Magistrates Court (Minor Cases Procedure) Rules 2005 ("the MCR"). An order was also made permitting the respondent to file and serve pursuant to r 25B of the MCR a further statement of defence within 28 days of being served with the appellant's statement of minor case claim. The Claim was listed for trial on 21 and 22 January 2010.
On 9 July 2009 the appellant filed and served his statement of minor case claim ("the Statement of Claim"). The Statement of Claim elaborated upon, but did not substantially alter the description of, the Claim as stated in the document which the appellant had filed to commence the proceedings.
The respondent did not file and serve an additional statement of defence.
The hearing before the Magistrate
On 21 January 2010 the Claim came before the learned Magistrate for trial. Her Honour, after confirming the identity of the appellant and the respondent, asked a series of questions of each of them.
Her Honour asked the appellant if he had been in a de facto relationship with the respondent. The appellant said that he had not been in a de facto relationship with the respondent. The respondent said that she and the appellant had been in a de facto relationship during the period 16 December 2006 until 5 January 2009. Her Honour asked if there were any children from the relationship to which the respondent answered "no". Her Honour asked the appellant if the items that he was claiming, or the amounts that he was claiming for those items, related to "property during that relationship". The appellant said that all of the property belonged to him and that none of the items were acquired during his relationship with the respondent. The respondent said that this was "incorrect". Her Honour asked if there had been any contracts between the appellant and the respondent in relation to the property. The appellant said that there had been a verbal agreement in relation to a car which was item 1 in the Statement of Claim, that the car was registered in his name and the name of the respondent, and that there was no other contract between him and the respondent relating to the remaining items the subject of the Claim. Her Honour asked the respondent if she said that she had "some type of interest in this property". The respondent said that she had an interest in a property situated at 4 Hickson Avenue ("the Premises"). The appellant disputed this assertion saying that he had purchased the Premises solely in his name on 15 January 2007. Her Honour asked the appellant if he had a residential tenancy agreement with the respondent. The appellant said that he did not. Her Honour asked the respondent if she had any agreement with the appellant for her to pay money towards the purchase of the Premises. The respondent said that she did not and that the Premises was purchased "as a family home for us". Her Honour then said to the respondent, "You say you have what we call an equitable interest in this property" to which the respondent answered, "I guess so, yes". At this point her Honour made a ruling in the following terms:
"Now, I have carefully read this file, I have perused all the documents, including [the appellant's] minor case claim, his affidavit in support of that, the letters on file on behalf of [the respondent] through the Pilbara Community Legal Service, and in respect of this matter, it is my view that this court does not have jurisdiction to hear this matter. This is a de facto property dispute.
My orders are going to be that there be no jurisdiction under s 6 of [the Act], that the claim is dismissed and I make no order as to costs, but I do say to both of you that if you want to resolve this matter, if you can't do it amicably, that is if you can't do it between yourselves and with the help of maybe a lawyer, then you need to apply to the Family Court.
There can be an application for leave to have the matter heard out of time, but on the basis of the material before me, I have no power to hear the matter. It doesn't sit within [the Act] … under s 6 and it does appear to, on the face of it, satisfy the requirements under the Family Law Act so for those reasons, those are my orders …"
As soon as the Magistrate had finished speaking the appellant asked if he could speak. He said that he had evidence "here to say that we were not in a de facto relationship" and that he had obtained advice from legal practitioners that "we were not classified as a de facto relationship". To these comments her Honour responded, "That's a matter for dispute and that can be sorted out in the Family Court".
The basis for the Magistrate's decision
It is clear from the terms of the Magistrate's ruling that although her Honour was of the view that the Claim could or might be able to be dealt with as a de facto property dispute under Pt 5A of the Family Court Act 1997 (WA) ("the FCA"), the basis for her Honour's decision that the Magistrates Court did not have jurisdiction to deal with the Claim was that it did not fall within the provisions of s 6 of the Act. That this was the basis for her Honour's decision is confirmed by the terms of the formal orders that that were issued by the Magistrates Court following the hearing. The orders were:
"1.There being no jurisdiction under Section 6 of [the Act], the claim is dismissed.
2.No order as to costs."
There is no question that her Honour had jurisdiction to decide that the Claim was not within the jurisdiction conferred on the Magistrates Court by s 6 of the Act. This jurisdiction was expressly given to her Honour by s 10(1) of the Act.
The notice of appeal
By notice of appeal dated 4 February 2010 filed pursuant to s 32 and s 40 of the Act ("the Notice"), the appellant appeals against the decision of the Magistrate dismissing the Claim. He seeks orders that the Magistrate's decision be set aside, that the Magistrates Court did have jurisdiction under s 6 of the Act to deal with the Claim and that the Claim be re‑listed for trial in the Armadale Magistrates Court. The grounds for the appeal as stated in the Notice are as follows:
"[The respondent] and I were not in a de facto relationship as classified under the De facto Relationship Family Law Act for Western Australia. The minor case claim AR 575/09 and the 35 items claimed have no jurisdiction in the Family Law Court. I cannot lodge any claim in the Family Law Court as instructed by Magistrate Langdon on 21 January 2010 as we were not in a de facto relationship."
As I have already indicated, the basis for the Magistrate's decision that the Claim was not within the jurisdiction of the Magistrates Court was not that the Claim fell within the jurisdiction of the Family Court of Western Australia but rather that the Claim was not within the jurisdiction conferred on the Magistrates Court by s 6 of the Act. The fact that the Magistrate based her decision on the terms of s 6 of the Act is not surprising. Assuming that the nature of the Claim is such that it could be dealt with under Pt 5A of the FCA (as to which I express no opinion), there is no section in the FCA which operates to exclude the jurisdiction vested in the Magistrates Court by s 6 of the Act: see in particular the FCA, ss 8, 36(1), 36(4a), 36(8), 43(1)(b) and 43(2). Accordingly, I will treat the Notice as stating the ground of appeal to be that the Magistrate erred in deciding that the Magistrates Court did not have jurisdiction to deal with the Claim under s 6 of the Act. This will not cause any prejudice to the respondent. It has always been clear from the statement in the Notice of the orders sought by the appellant that the appellant is complaining about the Magistrate's decision that the Claim did not fall within the jurisdiction conferred on the Magistrates Court by s 6 of the Act. Moreover, this issue was canvassed by both the appellant and the respondent during the hearing of the appeal.
Application to add ground of appeal
During the hearing of the appeal the appellant made an application to amend the Notice by adding a ground of appeal alleging that the Magistrate, in dealing with the Claim, denied him natural justice. The application was opposed by the respondent. I reserved my decision on the application.
Rule 56 of the District Court Rules 2005 (WA) ("the DCR") provides that except with the leave of the Court, an appellant is not entitled to seek any relief or rely on any ground that is not set out in the notice of appeal. In my opinion it is appropriate, in determining whether to grant leave under r 56 to amend a notice of appeal by adding a ground of appeal, to take into account considerations similar to those which are taken into account by appellate courts in determining if an application to extend time within which to appeal should be granted. The question which must be asked is whether refusal of the application will work an injustice on the appellant having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application: Gallo v Dawson (1990) 93 ALR 479 at 480. In considering the consequences for the parties of the grant or refusal of the application it will almost inevitably be necessary to make an assessment of the merits of the proposed additional ground or grounds of appeal: Burns v Grigg [1967] VR 871 at 872; Gallo v Dawson (supra) at 480; Matta v R (1995) 126 FLR 127 at 128, 129, 130. In light of these considerations it is convenient to defer dealing with the application to amend the Notice until after I have dealt with the ground of appeal asserting that the Magistrate erred in deciding that the Magistrates Court did not have jurisdiction to deal with the Claim.
Legislative provisions governing the appeal
Section 32 of the Act, so far as is relevant, provides:
"(1)Except as provided by this section, no appeal lies against ‑
(a)an order made by the Court in the course of proceedings in a minor case; or
(b)the judgment of the Court in a minor case.
(2)If a party to a minor case is dissatisfied with the judgment of the Court in the case then –
(a)if the Court was constituted by a magistrate – an appeal lies against the judgment under Part 7 and, subject to subsection (3), Part 7 applies to the appeal;
(b)…
(3)Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds:
(a)that the minor case –
(i)was not within the jurisdiction of the Court; or
(ii)was not a minor case;
(b)that in dealing with the minor case there was a denial of natural justice; or
(c)that the judgment was beyond the Court’s jurisdiction."
Section 40(2) of the Act which appears in Pt 7 thereof provides:
"An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32."
Section 40(3)(b) of the Act provides that the appeal must be conducted in accordance with the DCR.
The Magistrate's decision dismissing the Claim was a judgment within the meaning of s 32. Her Honour's decision was binding on and enforceable between the parties, determined the Claim and was entered in the records of the Magistrates Court: Steffan v R (1993) 30 NSWLR 633 at 636. Accordingly, so far as the present appeal is concerned the combined effect of s 32 and s 40 of the Act is that the appellant may only appeal against the Magistrate's decision on one or more of the grounds specified in s 32(3).
Alleged error in deciding no jurisdiction
The ground of appeal contained in the Notice does not allege that the Claim is not within the jurisdiction of the Magistrates Court or that the Claim was not a minor case. It does not allege that the Magistrate, in dealing with the Claim, denied the appellant natural justice. It does not allege that the Magistrate's judgment was beyond the Magistrates Court's jurisdiction. In short, the ground of appeal contained in the Notice alleging that the Magistrate erred in deciding that the Magistrates Court did not have jurisdiction to deal with the Claim is not one of the grounds of appeal which s 32 of the Act provides can constitute a ground of appeal against a judgment in a minor case. It follows that the ground of appeal is incompetent. I therefore strike it out as is permitted by s 43(4)(a) of the Act and r 57(2)(b) of the DCR.
Determination of application to add ground of appeal
I return now to the appellant's application to amend the Notice by adding a ground of appeal which asserts that the Magistrate, in dealing with the Claim, denied him natural justice. As is apparent from my above reference to s 32 of the Act, a party to a minor case claim can appeal against a judgment in the minor case on the ground that there was a denial of natural justice.
In support of his application to amend the Notice the appellant submitted that his failure to include in the Notice a ground alleging a denial of natural justice was "just an unfortunate missight" (sic). He said that he had made a mistake in not including denial of natural justice as a ground of appeal. He said that when he was "here last time" (which I take to be a reference to his appearance at a directions hearing before a Registrar of the District Court on 4 May 2010) he did not have "all the facts together" and was still waiting for a copy of the transcript. He said that the appeal was put together quite hastily.
As to the merits of the proposed additional ground of appeal, the appellant submitted that he was denied natural justice because the Magistrate did not give him the opportunity to answer any questions or queries that she had about the jurisdiction of the Magistrates Court to deal with the Claim. He submitted that the Magistrate did not permit him to put his case on the issue of jurisdiction. He submitted that if he had been permitted to address the Magistrate on the issue of jurisdiction he would have asked her Honour to identify for him the specific allegations comprising the Claim that she did not consider fell within the Magistrates Court's jurisdiction and would have told her Honour why he considered that the allegations were within the Court’s jurisdiction. He submitted that the Claim was within the jurisdiction conferred on the Magistrates Court by s 6(1)(a)(i) and s 6(1)(d) of the Act.
In opposing the appellant's application the respondent submitted that the appellant had had ample opportunity to submit all the details of his appeal. She contended that to allow the application would cause her prejudice "because she did not believe any of the information … submitted [by the appellant] is correct". She argued that because of the lateness of the appellant's application she was not able to respond at the hearing of the appeal with information that she would have been able to produce if she had been given prior notice of the application.
The respondent's submissions as to the merits of the proposed additional ground of appeal did not go beyond an assertion that she did not believe that the appellant had been denied natural justice.
I accept that the appellant had plenty of time prior to the hearing of the appeal to make an application to amend the Notice by adding the ground which he now seeks leave to add. However, I consider that some leniency should be shown to the appellant in this regard given that he is self‑represented.
I do not consider that the respondent was prejudiced at the hearing of the appeal by the lateness of the appellant's application. The assertion that the Magistrate denied the appellant natural justice is not one in respect of which the respondent needed to adduce further information or evidence to deal with. It was an assertion that could only be responded to by reference to what transpired at the hearing of the Claim.
It remains to consider the consequences for the parties of the grant or refusal of the application. As I have already mentioned consideration of this issue requires me to assess the merits of the proposed additional ground.
In Cameron v Cole (1944) 68 CLR 571 at 589 Rich J said:
"… It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled ex debito justitiae to have any determination which affects him set aside … In such a case there has been no valid trial at all …"
The above statement of principle was cited with approval by Gibbs J (with whom Stephen J agreed) in Taylor v Taylor (1979) 143 CLR 1 at 4 and by Mason P (with whom the other members of the Court agreed) in Hoskins v Van Den‑Braak(1998) 43 NSWLR 290 at 294. Moreover, the principle of natural justice as stated by Rich J applies to persons making claims in just the same way as it applies to persons against whom claims are made. In short, natural justice requires that a litigant be given a reasonable opportunity to present his or her case.
Section 29(3) of the Act provides that in dealing with a minor case the Magistrates Court is to act with as little formality as the Court thinks is reasonable. Section 29(4) of the Act provides that when dealing with a minor case the Magistrates Court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit. However, and as is effectively recognised by s 32(3)(b) of the Act, nothing in these sections detracts from the fundamental requirement that the Magistrates Court accord natural justice to the parties appearing before it in a minor case claim by giving the parties a reasonable opportunity to present their respective cases.
With respect to the learned Magistrate, it is my view that her Honour did not give the appellant a reasonable opportunity to present his case on the issue of the Magistrates Court jurisdiction to deal with the Claim. Although her Honour asked questions of the appellant and the respondent that she clearly considered were relevant to the issue of jurisdiction, her Honour did not direct the appellant's attention to s 6 of the Act and, more importantly, did not give him the opportunity to make submissions to her as to why the Claim, or even some aspects of it, did fall within the terms of the section. Her Honour did not do so despite the fact that after she had delivered her ruling the appellant asked to be heard further on the issue of whether he and the respondent had been in a de facto relationship. I am therefore of the opinion that in dealing with the Claim the Magistrate did deny the appellant natural justice.
It follows, given the conclusion that I have already reached in relation to the ground of appeal that is stated in the Notice, that in my opinion a refusal of the appellant's application to amend the Notice will have significant adverse consequences for him. It will result in him suffering a manifest injustice in that he will effectively be bound by the decision of the Magistrate that the Magistrates Court does not have jurisdiction to deal with the Claim notwithstanding that he was not given a reasonable opportunity to present his case on this issue when the Claim came on for trial. In my view this potential injustice outweighs any prejudice or difficulty that will be caused to the respondent if I allow the application and the appeal on the additional ground.
For the reasons stated above I have decided to:
(1)allow the appellant's application to amend the Notice by adding a ground of appeal which asserts that the Magistrate, in dealing with the Claim, denied the appellant natural justice;
(2)allow the appeal on the ground that the Magistrate, in dealing with the Claim, denied the appellant natural justice;
(3)set aside the decision of the Magistrate that the Magistrates Court does not have jurisdiction to deal with the Claim; and
(4)remit the Claim to the Magistrates Court for a new hearing: the Act, s 43(7)(a) and s 43(7)(c).
Merits of the appellant's submission that the Claim is within the jurisdiction of the Magistrates Court
Given that I have struck out as incompetent the ground of appeal alleging that the Magistrate erred in deciding that the Magistrates Court did not have jurisdiction to deal with the Claim it is not appropriate for me to make any orders in relation to this issue. It will be for the Magistrates Court on the new hearing of the Claim to determine, after hearing submissions from the parties, if the Claim is within the jurisdiction conferred on the Court by s 6 of the Act. Nonetheless, it seems to me that it may be of some assistance to the Magistrate who ultimately presides over the new hearing if I briefly set out my views in relation to this issue. I therefore propose to do so. Obviously, nothing I say should be taken as reflecting any view as to the likelihood or otherwise of the appellant proving his various allegations.
The relevant statutory provisions
Section 5 of the Act provides that the Magistrates Court's civil jurisdiction is set out in the Act.
Section 6, so far as is relevant, provides:
"(1)The Court has jurisdiction to deal with –
(a)a claim for an amount of money that is –
(i)a debt or damages, whether liquidated or unliquidated;
(ii)…;
(iii)…,
where the amount claimed, even if it is a balance after allowing for a payment on account or for any admitted set off or for any other amount, is not more than the jurisdictional limit; …
(d)a claim to recover possession of personal property that is unlawfully detained where the value of the property is not more than the jurisdictional limit;
…"
Section s 6(1)(a) does not attempt to confine the extent of the Magistrates Court's jurisdiction by reference to any causes of action. In "Civil Procedure Western Australia Magistrates Court" at [1845.15] the learned author expresses the view that the best way to construe s 6(1)(a) is to treat the reference to "damages" in the section as meaning any action at law productive of damages. I agree with this interpretation of the section. In my view the section confers on the Magistrates Court jurisdiction to deal with claims for damages founded on, for example, actions in tort and contract provided that the damages claimed do not exceed the jurisdictional limit.
As to s 6(1)(d), it is clear that the section encompasses the tortious actions of trespass, detinue and conversion.
In relation to the use of the term "jurisdictional limit" in s 6(1)(a) and s 6(1)(d), s 4 of the Act provides that in Pt 2 of the Act, in which s 6 appears, "jurisdictional limit" means $75,000. However, s 4 must be read in light of the definition of "minor case" in s 26 of the Act which provides, so far as is relevant, that:
"… minor case means –
(a)a claim within the jurisdiction of the Court where –
(i)the value of the claim or the relief claimed is not more than the minor cases jurisdictional limit; and
(ii)the claimant has elected to have the claim dealt with under the minor cases procedure …"
Minor cases jurisdictional limit is relevantly defined in s 3 of the Act to mean $10,000. Therefore the net result is that in the context of the Claim, the references in s 6(1)(a)(i) and s 6(1)(d) to "jurisdictional limit" must be read as "minor jurisdictional limit", that is, $10,000.
The allegations comprising the Claim
The statement of claim is divided into 35 allegations each of which relates to various items of personal property. The alleged total value of the property the subject of the Claim is, as I have already mentioned, $8,992. The value of the Claim is therefore below the minor cases jurisdictional limit.
I will deal with each of the allegations using the same numbering system as is used in the statement of claim.
Allegation 1
By this allegation the appellant seeks an order requiring the removal of the respondent's name as one of the registered owners of a vehicle registration number 1CYK 169. The basis for seeking the order is said to be that the respondent has not complied with a verbal agreement made between the appellant and the respondent on 4 November 2008 pursuant to which the respondent agreed to deposit into the appellant's bank account amounts to be used by the respondent to make monthly repayments due under a loan agreement relating to the vehicle entered into between the appellant and a third party. In my opinion s 6 of the Act does not vest the Magistrates Court with jurisdiction to deal with this aspect of the Claim.
Allegation 2
The appellant alleges that by reason of the respondent providing false information to the Magistrates Court she obtained an interim violence restraining order ("the VRO") the terms of which required him to move out of the Premises during the period 14 January 2009 to 26 March 2009, a period of approximately 10 weeks. He claims compensation of $300 per week for the period of 10 weeks that he was not permitted to live in the Premises. He asserts that he is not seeking rental payments from the respondent as he never had any rental agreement with her, but that he is seeking compensation as a result of being forced out of the Premises when the respondent had no right to bring this about.
In my view s 6 of the Act does not give the Magistrates Court jurisdiction to deal with this aspect of the Claim. Indeed, I doubt that the allegation as stated discloses a cause of action.
Allegations 3, 4, 5, 6, 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35
In each of these claims the appellant alleges that during the period of the VRO the respondent unlawfully removed from the Premises various items of personal property that belonged to him. He seeks the return of the property or payment of what he asserts to be the value of the property.
In my opinion each of these claims is a claim that the Magistrates Court has jurisdiction to deal with. They are in substance claims in one or more of the tortious actions for trespass, conversion or detinue: Gollan v Nugent (1988) 166 CLR 18 at [24]–[25]. The claims consequently fall within the terms of s 6(1)(d) of the Act in that they amount to a claim to recover possession of personal property that is unlawfully detained where the value of the property is not more than the minor cases jurisdictional limit. To the extent that the individual claims seek damages in the alternative or in addition to the return of the property, they are also claims for damages within the meaning of s 6(1)(a)(i) of the Act.
Allegations 7, 8 and 9
The appellant alleges that while he was prevented from living in the Premises due to the VRO the respondent damaged various areas of the Premises, specifically some floorboards in the main bedroom, some floorboards in the spare bedroom, the rear access door to the carport and the carport roller door. He claims various amounts as compensation for each of these alleged areas of damage.
In my view these claims are in substance claims for damages arising from alleged trespasses to land. The individual claims are therefore within the jurisdiction of the Magistrates Court by virtue of s 6(1)(a)(i) of the Act. The jurisdiction of the Magistrates Court to deal with the claims is not excluded by s 6(5)(a) of the Act. This is not a case in which legal title to the Premises and the land on which it is situated is in issue. It is not in dispute that the appellant is the sole registered proprietor of the Premises.
Allegation 11
The appellant alleges that when he returned to the Premises after the VRO had been cancelled he could not unlock the Premises because the respondent, who was in Karratha at the time, had changed all of the locks to the Premises and had retained possession of all of the keys to the locks. He therefore asserts that he arranged for a locksmith to unlock the Premises at a cost of $150. He claims this amount.
In my view this claim is in substance a claim for damages arising from an alleged trespass to land and is consequently within the Magistrates Court's jurisdiction by reason of s 6(1)(a)(i) of the Act.
Allegation 12
The appellant alleges that when he returned to the Premises after the cancellation of the VRO he discovered a considerable amount of rubbish and debris which had been left at the Premises by the respondent. He contends that he was required to make three trips to the Armadale landfill to dispose of this rubbish and debris. He alleges that each visit to the landfill facility cost him $24. He therefore claims a total of $72.
In my view this claim is again in substance a claim for damages arising from an alleged trespass to land and is consequently within the Magistrates Court's jurisdiction by reason of s 6(1)(a)(i).
Orders
Given that the appellant is self‑represented I do not consider that I should make a costs order in his favour. The orders that I will make are as follows:
1.The ground of appeal that the Magistrate erred in deciding that the Magistrates Court did not have jurisdiction under s 6 of the Magistrates Court (Civil Proceedings) Act 2004 to deal with minor case claim AR 575/09 is struck out as incompetent.
2.The appellant is given leave to amend the notice of appeal dated 4 February 2010 by adding a ground of appeal in the following terms:
"The learned Magistrate, in dealing with minor case claim AR 575/09, denied the appellant natural justice."
3.The appeal on the ground that the Magistrate, in dealing with minor case claim AR 575/09, denied the appellant natural justice is allowed.
4.Minor case claim AR 575/09 is remitted to the Magistrates Court for a new hearing.
Although I have allowed this appeal, I state for the benefit of the parties that in my view the nature of the dispute between them is such that they should not be resorting to litigation to resolve it. They should make every effort to resolve their dispute by communicating and negotiating sensibly between themselves.
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