Lynn v Goodline Enterprises Pty Ltd [No 2] - [2025] WASC 310

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LYNN -v- GOODLINE ENTERPRISES PTY LTD [No 2] [2025] WASC 310
CORAM:   MCGRATH J
HEARD:   25 JULY 2025
DELIVERED          :   6 AUGUST 2025
FILE NO/S:   CIV 1661 of 2025
BETWEEN:   ELA LYNN
Applicant
AND
GOODLINE ENTERPRISES PTY LTD
Respondent

Catchwords:

Administrative law - Application for a review order under s 36 of the Magistrates Court Act 2004 (WA) - Termination notice under s 70A of the Residential Tenancies Act1987 (WA) - Whether there was a denial of procedural fairness by not properly considering relevant matters - Whether there was jurisdictional error in the Magistrate deciding the matter whilst proceedings having been commenced in District Court and Supreme Court - Turns on own facts

Legislation:

Magistrates Court Act 2004 (WA)
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In person
Respondent	:	Mr S R Pack

Solicitors:

Applicant	:	In person
Respondent	:	Wotton Kearney Lawyers

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

Allen v Contrast Constructions Pty Ltd [2025] QSC 18
Attorney-General (NSW) v Quinn (1990) 170 CLR 1
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Kioa v West (1985) 159 CLR 550
Kirk v Industrial Court of New South Wales [2010] HCA 1
Palmer v Citic Ltd [2017] WASC 253
Rayney v AW [2009] WASCA 203
Re Bajaj; Ex parte Bajaj [2021] WASC 335
Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Teakle v The State of Western Australia (2007) 33 WAR 188

MCGRATH J:

Introduction

The applicant applies for a review order under s 36 of the Magistrates Court Act 2004 (WA) in respect of orders made by the learned Magistrate at a hearing on 8 May 2025 (Orders). Before the learned Magistrate was an application by the respondent to secure termination of a tenancy and take possession of a property pursuant to s 71 of the Residential Tenancies Act 1987 (WA) (RT Act). At the conclusion of the hearing, the orders made by the learned Magistrate were that the applicant pay $20,000 in unpaid rent within 14 days, failing which the respondent could obtain orders for termination and possession of the property. The applicant did not make payment. Subsequently, a property seizure and delivery order was made in favour of the respondent. The applicant now seeks a review of the Orders.
The application for a review order was commenced in this Court on an urgent ex parte basis. On 25 June 2025, I ordered that the applicant serve the Originating Motion and supporting affidavits on the two named respondents and that the matter return for a further hearing. It was necessary to require the appearance of the named respondents, for the reason that it was not possible to discern the history of the matter and the issues properly raised, in light of the applicant's affidavits and the absence of a transcript from the court below. Further, I ordered an interim stay of execution of the Orders until further order of this Court. I did so to permit the respondent the opportunity to appear at the hearing of the application.
Subsequently, the named second respondent in the proceedings made application that it cease to be a party to the proceedings. On 22 July 2025, I ordered that the named second respondent cease to be a party in the proceedings pursuant to O 18 r 6(2)(a) of the Rules of the Supreme Court 1971 (WA) (RSC).

Background

On 4 December 2023, the applicant and the respondent entered into a residential tenancy agreement in respect to a property in Connolly (the Property) for a fixed term for the period 22 December 2023 to 22 February 2025[1] (the Agreement). The lease was subject to the RT Act.
[1] Affidavit of Mr O'Neill sworn 16 July 2025 [6], Annexure TAMO-2.
The terms of the Agreement provided that the weekly rent of $1,100 was to be paid in advance and the maximum number of occupants was two persons. A further term of the Agreement dealt with the right of the tenant to assign or sub-let. It provided that 'the tenant may assign the tenant's interest under the agreement or sub-let the premises only with the written consent of the lessor.'[2]
[2] Affidavit of Mr O'Neill sworn 16 July 2025 [6], Annexure TAMO-2.
The respondent contends that the applicant engaged in advertising seeking to sub-let a room at the Property and points to advertisements on websites in respect to the sub-letting of a room in the property in support of that contention.[3]
[3] Affidavit of Mr O'Neill sworn 16 July 2025 [7], Annexure TAMO-3, TAMO-4, TAMO-5.
On 23 October 2024, the respondent caused a notice of breach of agreement to be issued to the applicant due to sub-letting of rooms at the property without lessor approval.[4] By correspondence from the respondent's property agent, the applicant was informed that she had previously been warned regarding sub-tenants residing at the property and paying rent.
[4] Affidavit of Mr O'Neill sworn 16 July 2025 [8], Annexure TAMO-6.
On 2 December 2024, the respondent caused a notice of termination of the lease to be issued to the applicant advising that her tenancy would terminate at the expiry of the fixed term and requiring the applicant to give vacant possession of the property on 22 February 2025.[5] The applicant did not vacate the property on that date or thereafter.
[5] Affidavit of Mr O'Neill sworn 16 July 2025 [9], Annexure TAMO-7.
On 19 February 2025, the respondent caused a second termination notice to be issued to the applicant advising that her tenancy would terminate after the expiry of the fixed term. The notice required that the applicant give vacant possession of the property on 21 March 2025 in accordance with s 70A of the RT Act.[6] The applicant did not vacate the property on that date or thereafter.
[6] Affidavit of Mr O'Neill sworn 16 July 2025 [10], Annexure TAMO-8.
The respondent also contended that the applicant ceased paying rent on or about 19 December 2024. The respondent produced a report from the property manager stating that the outstanding rent as at 4 July 2025 was $31, 900.[7]
[7] Affidavit of Mr O'Neill sworn 16 July 2025 [6], Annexure TAMO-11.
On 20 February 2025, the respondent caused a further notice to be issued to the applicant relying on unpaid rent, advising that, unless she paid the outstanding rent in full within seven days, her tenancy would terminate and she would be required to give vacant possession of the property by 28 February 2025.[8] The respondent contends that the applicant did not pay the rent, nor did she vacate the property on that date or thereafter.
[8] Affidavit of Mr O'Neill sworn 16 July 2025 [11], Annexure TAMO-9.
On 4 March 2025, an application was made to the Magistrates Court on behalf of the respondent pursuant to s 71 of the RT Act to secure termination of the tenancy and to take possession of the property.[9]
[9] Magistrates Court proceedings - JOO/RSTN/263/2025.
On 11 April 2025, the applicant lodged an absolute caveat in respect to the property.[10]
[10] Affidavit of Mr O'Neill sworn 16 July 2025 [12], Annexure TAMO-10.
On 8 May 2025, the application by the respondent was heard in the Perth Magistrates Court. At the conclusion of the Magistrates Court hearing, the learned Magistrate made the Orders.
On 15 May 2025, the applicant applied to the Magistrates Court for an order to 'suspend the enforcement of a judgment'. That was treated as an application to suspend the enforcement of the Orders.
On 23 May 2025, that application to suspend the enforcement of the Orders was dismissed by Registrar Clark.
On 27 May 2025, a property seizure and delivery order was made by the Magistrates Court.
The applicant seeks review of the Orders of Magistrate Darge, the refusal by Registrar Clark on 23 May 2025 of the application for a suspension order and the subsequent property seizure and delivery order made on 27 May 2025.
As previously mentioned, on 25 June 2025, I ordered an interim stay of the various orders made by the Magistrates Court until further order. The purpose of the interim stay was to allow the respondent the opportunity to appear on the hearing of the application.

Other proceedings

The applicant has commenced other proceedings namely:
(1)Proceedings against Goodline Enterprises Pty Ltd (Goodline Enterprises) and Bridgeline Pty Ltd t/a Harcourts Alliance (Bridgeline) in the District Court (CIV 127 of 2025). The proceedings were commenced on 22 January 2025. On 3 June 2025, the applicant attempted to file a statement of claim which was refused due to non-compliance with the rules of court.[11] The amended statement of claim pleaded a myriad of grounds including misleading and deceptive conduct, unconscionable conduct, fraud, negligence and abuse of process. These proceedings were discontinued by the applicant on 20 June 2025.

(2)Proceedings against Goodline Enterprises and Bridgeline and others in the Supreme Court (CIV 1455 of 2025). On 1 May 2025, the applicant attempted to lodge a Writ of Summons with an Indorsement of Claim. The Registrar refused to accept that document for filing for the reason that it was an abuse of process under O 67 r 5 of the RSC.
(3)Proceedings against Goodline Enterprises and Bridgeline in the Supreme Court by Originating Motion lodged 27 May 2025 (CIV 1553 of 2025). Hill J ordered the Originating Motion be adjourned sine die and that the chamber summons for an urgent interlocutory injunction dated 28 May 2025 be dismissed.
[11] Order of Registrar Nunn made on 6 June 2025.

In her reasoning and discourse with the applicant at the directions hearing in respect to CIV 1553 of 2025, Hill J observed that the orders sought by the applicant in the Originating Motion, namely being that the Magistrates Court orders be varied or set aside, required that the application be brought under O 56A of the RSC.

Legal principles

I turn to the legal principles that I must apply. The relevant legal principles were stated by the Court of Appeal in Rayney v AW[12] and Bajaj v Magistrate Trevor Darge.[13]

Residential Tenancies Act

[12] Rayney v AW [2009] WASCA 203.

[13] Bajaj v Magistrate Trevor Darge [2021] WASCA 218.

The RT Act regulates the relationship of lessors and tenants under residential tenancy agreements. The Magistrates Court has exclusive jurisdiction to determine applications made under the RT Act.[14]
[14] Residential Tenancies Act 1987 (WA) s 12A.
By s 12A(2) of the RT Act, the applicable procedure for a residential tenancy dispute is that applicable for a 'minor case' under pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). By s 14, proceedings under the RT Act shall be heard and determined wherever practicable within 14 days after they are instituted and, where that is not practicable, as expeditiously as possible. The court hearing the application may proceed in such a manner as it considers best suited to the purposes of the RT Act,[15] and the court is not bound by the rules of evidence.[16]
[15] Residential Tenancies Act 1987 (WA) s 20(a).
[16] Residential Tenancies Act 1987 (WA) s 21.
Section 26 of the RT Act provides that no appeal lies from a decision under that Act. Section 26 of the RT Act provides for the application of s 36 of the Magistrates Court Act as follows:
26.Finality of proceedings
(1)An order made by a court under this Act is final and binding on all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof.
(2)No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.
(3)This section applies despite Part 7 of the Magistrates Court (Civil Proceedings) Act 2004.
Part V of the RT Act concerns the termination of residential tenancy agreements. Section 60(1) of the RT Act provides that, despite any act or law to the contrary, a residential tenancy agreement shall not terminate or be terminated except in one of the circumstances specified in s 60 of the RT Act. Section 64 of the RT Act provides the circumstances in which a lessor may give notice of termination of a residential tenancy to a tenant without specifying any ground for the notice.
The respondent contended that the learned Magistrate had before him an application for termination of the Agreement and an order for possession pursuant to s 71 of the RT Act. That section relevantly provides:
71. Application by lessor for termination and order for possession
(1)Where a lessor or a tenant under a residential tenancy agreement gives notice of termination to the other under this Act except under section 70A and the tenant fails to deliver up possession of the premises on the day specified, the lessor may, subject to section 62(5)(a), within 30 days after that day, apply to a competent court for an order terminating the agreement and an order for possession of the premises.
(2) Subject to this section, a competent court shall, upon application under this section, make an order terminating the agreement and an order for possession of the premises, if it is satisfied -
(a) that notice of termination was given by the lessor or tenant to the other and that it complied with and was given in accordance with this Act; and
…
(3)Notwithstanding subsection (2) the court may -
…
(b)refuse to make the orders under that subsection, if it is satisfied -
(i)that giving the notice is retaliatory action taken by the lessor against the tenant because of a matter mentioned in section 26B(2)(a), (b) or (c); or
(ii)in the case of notice given by the lessor upon the ground of a breach by the tenant, that the tenant has remedied the breach, but in every case the court shall take into account any previous breaches of the agreement by the tenant; or
(iii)in the case of notice given by the lessor upon the ground referred to in section 69, that the consequences of the lessor continuing to be bound by the agreement would not be unduly burdensome to the lessor.
(4)Where in any proceedings upon an application under this section the court is satisfied that the tenant had, within the period of 6 months before notice was given by the lessor, complained to a public authority or taken steps to secure or enforce the tenant's rights as a tenant, the burden shall lie on the lessor to prove that the lessor was not wholly or partly motivated to give notice by that fact.

Magistrates Court Act

Section 36(1) of the Magistrates Court Act provides:
36.Supreme Court's powers to control Court
(1)If a person is or would be aggrieved by one or more of the following -
(a)the failure of a Court officer to do any act or make any order or direction -
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
Section 36 of the Magistrates Court Act provides for an alternative statutory form of relief to the prerogative writs which are not available in relation to a decision of a Magistrate.[17] The power in s 36 of the Magistrates Court Act is, in effect, a judicial review power.[18]
[17] Magistrates Court Act s 35.
[18] Rayney v AW [2009] WASCA 203 [27].
Section 36(1) of the Magistrates Court Act provides a two stage process whereby a person may apply to the Supreme Court for an order requiring the court officer who made the decision, and any person who will be affected by the act, order or direction, to satisfy the Supreme Court at a later hearing that the act, order or direction made by the court officer should or should not be done or made or set aside, as the case requires.
Order 56A of the RSC prescribes the procedure for review orders under s 36 of the Magistrates Court Act.
The applicant applied for both a review order pursuant to s 36(1) of the Magistrates Court Act and a stay of execution pursuant to O 56 r 3(3)(d) of the RSC pending the determination of the review hearing, if granted. As I have observed, I granted an interim stay to permit the parties to appear and to make submissions.
Section 26(2) of the RT Act modifies the application of s 36 of the Magistrates Court Act in respect to matters arising under the RT Act, by providing that no order shall be made under s 36 of the Magistrates Court Act unless the Supreme Court is satisfied that:
(a)the Magistrates Court had or has no jurisdiction conferred by or under the Act in respect of the proceedings; or
(b)that a party to the proceedings has been denied natural justice.
The proper construction of s 26 of the RT Act has been stated in previous cases as confining the grounds upon which an application may be made under s 36 of the Magistrates Court Act.[19] I note that the Court of Appeal in Bajaj v Magistrate Trevor Darge[20] stated that it was not necessary to decide whether the principle espoused by the High Court in Kirk v Industrial Court of New South Wales[21] might affect such a construction of s 26(2) of the RT Act. I apply the construction of s 26(2) consistent with the previous authorities.
[19] Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386; Re Bajaj; Ex parte Bajaj [2021] WASC 335.
[20] Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [49].
[21] Kirk v Industrial Court of New South Wales [2010] HCA 1 [99] - [100].
The legal principles in relation to the application of s 36 of the Magistrates Court Act were explained in Rayney v AW[22] and Bajaj v Magistrate Trevor Darge.[23] The reference to 'no jurisdiction' in s 26(2) of the RT Act should be taken to mean jurisdictional error. At the first stage in the process, the court is empowered to make a review order requiring the decision-maker to show cause if the material before the court demonstrates an arguable case in relation to a ground of jurisdictional error or a denial of natural justice. That is, if the material demonstrates that the case has reasonable prospects of success. Further, an application under s 36 is concerned only with the legality of decisions, and not the merits.

Jurisdictional error

[22] Rayney v AW [2009] WASCA 203.

[23] Bajaj v Magistrate Trevor Darge [2021] WASCA 218.

The categories of jurisdictional error in relation to a decision of an inferior court (in addition to a denial of natural justice) were summarised by the Court of Appeal in Bajaj v Magistrate Trevor Darge[24] as follows (citations omitted):
[24] Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [50] ‑ [54].
[50]The concept of jurisdictional error was described in the following terms by Hayne J in Re Refugee Review Tribunal; Ex parte Aala:
'There is a jurisdictional error if 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 power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.'
[51]This passage was quoted with approval by the plurality in Kirk v Industrial Court (NSW), and applied by this court in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum.
[52]It is more difficult to demonstrate jurisdictional error on the part of an inferior court than in the case of an administrative decision-maker. Generally speaking, unlike administrative decision-makers, inferior courts have jurisdiction to decide questions of law, including the proper construction of a statute, and to do so incorrectly.
[53]While the categories are not closed, the following five categories of jurisdictional error in respect of inferior courts and analogous bodies are well established:
First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied ([...] a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
[54] Another category is where the decision is made in breach of natural justice.

Natural justice (Procedural fairness)

In Kioa v West,[25] Mason J stated (citations omitted):[26]
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting …
In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case.
[25] Kioa v West (1985) 159 CLR 550.
[26] Kioa v West (1985) 159 CLR 550, 584 - 585.
In Teakle v State of Western Australia,[27] Buss JA stated (citations omitted):[28]
Absent a clear legislative intent to the contrary, a statutory power conferred on a court must be exercised with procedural fairness … The rules of procedural fairness are concerned with procedures rather than outcomes, and they are therefore rules which govern what a court must do in the course of deciding how a statutory power should be exercised. In other words, the rules of procedural fairness are to be applied to the procedures by which a decision pursuant to the exercise of the statutory power will be made.
[27] Teakle v The State of Western Australia (2007) 33 WAR 188.
[28] Teakle v The State of Western Australia (2007) 33 WAR 188 [63].
Procedural fairness is a practical rather than abstract concept, and the concern of the law is to avoid practical injustice.[29] What is required by procedural fairness is a fair hearing, not a fair outcome, such that the relevant focus is to enquire as to the decision-maker's processes, rather than its actual decision.[30]
[29] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] - [38].
[30] Attorney-General (NSW) v Quinn (1990) 170 CLR 1, 35 - 36 (Brennan J).
A court must afford an applicant procedural fairness during a hearing. The court must be, and appear to be, impartial, and must provide each party to the proceedings before it with an opportunity to be heard, to advance their respective cases, and to answer the case put against them.

Grounds of application

The Originating Motion seeks a review of the Orders, the orders of Registrar Clark made 23 May 2025 and the property seizure and delivery order made on 27 May 2025. I note that the applicant did not advance any separate basis for challenging the orders made on 27 May 2025.
The applicant seeks orders 'quashing the orders' made in the Magistrates Court and also seeks that 'pending the final determination of this proceeding and/or CIV 1553 of 2025, a stay be granted of [the orders]'.[31] Further, the applicant seeks an order 'restoring the applicant to full possession' and 'reinstating her ability to host homestay guests as part of her business operations.'[32]
[31] Originating Motion filed 23 June 2025.
[32] Originating Motion filed 23 June 2025.
The applicant sets out various grounds in the Originating Motion. Her primary contention is that the Orders were made without proper consideration of the pending higher court matters, being the proceedings then current as of 8 May 2025 namely, CIV 1455 of 2025 and CIV 127 of 2025. The applicant contends that the failure by the learned Magistrate to consider those proceedings resulted in 'jurisdictional error and/or denial of procedural fairness'.[33] The further grounds set out by the applicant in the Originating Motion appear intended to provide further particulars of her primary contention. The applicant contends that the learned Magistrate erroneously 'mischaracterised the matters [in the Supreme Court and District Court] as separate, failing to properly disclose the overlap with ongoing higher court proceedings.'
[33] Originating Motion filed 23 June 2025.
Further, the applicant contends that the proceedings in the Magistrates Court constituted an abuse of process given that the applicant had commenced proceedings in the Supreme Court and District Court (higher courts). The gravamen of this ground of review appears to be that the learned Magistrate had no power to make the Orders by virtue of the fact that the applicant had commenced proceedings in the higher courts.
The grounds of review therefore distil down to an allegation that the learned Magistrate denied her procedural fairness and an allegation that the learned Magistrate acted without jurisdiction because she had commenced proceedings in the District Court and Supreme Court.
The applicant makes application for review of the orders of Registrar Clark on the ground that he failed to 'acknowledge or give effect' to the Supreme Court proceedings.[34]
[34] First Affidavit of the applicant sworn 24 June 2025, page 2.
Turning first to the contention that there was a denial of natural justice, I have obtained and read the transcript of proceedings in the Magistrates Court on 8 May 2025, at which the Orders were made. The learned Magistrate noted that the applicant had filed substantial material concerning the issues being raised in the civil proceedings in the higher courts. His Honour invited oral submissions from the applicant who raised her contentions concerning the Agreement and, in particular, a range of matters that the applicant stated she was agitating in the higher courts.
The fact that the applicant had commenced proceedings in the District Court and this Court (CIV 127 of 2025 and CIV 1455 of 2025) was expressly raised by the applicant. The learned Magistrate observed that documents about those proceedings had been filed in the Magistrates Court and further, he ascertained the nature of those proceeding and the matters raised therein in the course of discourse with the applicant. The learned Magistrate formed the view that the commencement of the proceedings in the higher courts was no bar to the making of the Orders.
The applicant has not demonstrated an arguable case that the learned Magistrate failed to consider the proceedings in CIV 127 of 2025 or CIV 1455 of 2025, or otherwise disregarded the matters raised by the applicant in those higher court proceedings, so as to constitute a denial of natural justice to the applicant.
Turning next to the applicant's claim of jurisdictional error or as the applicant contends an abuse of process based on the fact that she had commenced proceedings in the higher courts, there is no merit to this claim. The learned Magistrate was determining a narrow application by the respondent for the termination of the Agreement and an order for possession pursuant to s 71 of the RT Act. The statutory framework for determining that application required that the learned Magistrate hear and determine the application wherever practicable within 14 days, and otherwise as expeditiously as possible, and to make the orders if the relevant conditions were met. His Honour did so.
The applicant contends that the learned Magistrate erred by hearing and determining the application given that there were ongoing proceedings in higher courts, namely CIV 1455 of 2025 in the Supreme Court and CIV 127 of 2025 in the District Court. As I have observed in respect to Supreme Court proceedings CIV 1455 of 2025, Registrar Davies refused to accept the writ of summons and indorsement of claim filed by way of letter dated 8 May 2025. Registrar Davies stated that she refused to accept the documents pursuant to O 67 r 5 of the RSC, as the documents constituted an abuse of process. Further, the District Court proceedings CIV 127 of 2025, commenced on 22 January 2025 and were discontinued by the applicant on 20 June 2025. The applicant's amended statement of claim in CIV 127 of 2025, filed 3 June 2025, was refused due to non‑compliance with the rules of court.
The contention of the applicant is that because she had commenced proceedings in the higher courts, the respondent's proceedings in the Magistrates Court should be stayed, in effect, pending the determination of the higher court proceedings. I do not accept that contention. The existence of the proceedings in the higher courts did not deprive the Magistrates Court of its jurisdiction to make the orders under s 71 of the RT Act. Further, the fact that there are two proceedings in two separate courts, which proceedings have some overlap in respect to subject matter or facts in dispute, does not axiomatically mean that one of the courts, whether or not the higher in the hierarchy of courts, must stay the proceedings before that respective court. The respective court exercises a discretion, with the relevant factors being fact specific.[35]
[35] See by way of example: Allen v Contrast Constructions Pty Ltd [2025] QSC 18 [46] - [49]; Palmer v CiticLtd [2017] WASC 253 [7] - [11] (Le Miere J).
In considering relevant factors and then conducting a balancing exercise, a judicial officer is entitled to form their own assessment in respect to the weight to be given to each factor. The judicial officer will not fall into jurisdictional error merely because a contrarian may have weighed the factors differently. The applicant appears to be seeking to challenge the correctness of the learned Magistrate's refusal to stay the proceedings until the higher court proceedings were finalised. An application for a review order is not a review of the merits of the decision of the learned Magistrate and is not an occasion for the applicant to reagitate the merits of her application to stay the Magistrates Court proceedings.[36]
[36] Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386 [121].
In any event, I note that the learned Magistrate engaged in extended discourse with the applicant who agitated her contentions that formed the basis of her civil proceedings.
During the discourse at the Magistrates Court hearing, the learned Magistrate indicated the following considerations in determining he should make the Orders:
(1)The Magistrates Court would be able to resolve the application more promptly than the Supreme Court would be able to determine the applicant's claims in the higher court civil proceedings, particularly so given that the applicant had only very recently lodged the Supreme Court proceedings.[37]
(2)Ordinarily, a person occupying premises was obliged to pay rent even while litigating claims in respect to the leased premises.[38] The applicant accepted, during the hearing, that she was in rental arrears in the amount of 'around $20,000'.[39]
(3)If the applicant was successful in the civil proceedings then she could obtain damages, including in respect of rent the applicant had paid.[40]
(4)That whilst he was not in a position to make any determination of the merits of those civil proceedings, it appeared that the applicant faced a number of difficulties in those proceedings.[41]
(5)The Supreme Court would be better placed than the Magistrates Court to consider a stay application by the applicant in respect to any orders made by the learned Magistrate. The application before the learned Magistrate was narrow.[42]
[37] ts 14 (8/5/2025).
[38] ts 7 (8/5/2025).
[39] ts 30 (8/5/2025).
[40] ts 19, 22 (8/5/2025).
[41] ts 4, 10, 27, 29 (8/5/2025).
[42] ts 4, 9, 14, 33 (8/5/2025).
Having engaged in extended discourse with the applicant, the learned Magistrate undertook the exercise of balancing the competing factors and determined to refuse a stay and instead proceeded to exercise his jurisdiction under s 71 of the RT Act and determine the application before him. There is no basis for concluding that the learned Magistrate made a jurisdictional error.

Conclusion

The applicant has not demonstrated an arguable case that the learned Magistrate made a jurisdictional error, or failed to afford natural justice to the applicant.
Accordingly, for these reasons, the application must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Hon Justice McGrath
6 AUGUST 2025