Marino v St Bartholomew's House Inc

[2016] WASC 182

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MARINO -v- ST BARTHOLOMEW'S HOUSE INC [2016] WASC 182

CORAM:   MARTINO J

HEARD:   10 JUNE 2016

DELIVERED          :   10 JUNE 2016

FILE NO/S:   CIV 1964 of 2016

BETWEEN:   SHARON JULIE MARINO

Plaintiff

AND

ST BARTHOLOMEW'S HOUSE INC
Defendant

Catchwords:

Injunction - Interlocutory injunction - Boarder or lodger applying for order that the defendant provide accommodation - Balance of convenience

Legislation:

Nil

Result:

Application for an interlocutory injunction dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     In person

Solicitors:

Plaintiff:     In person

Defendant:     In person

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

Castlemaine Tooheys v State of South Australia (1986) 161 CLR 148

MARTINO J: 

(This is an edited version of reasons delivered at the hearing on 10 June 2016.)

1. The plaintiff, Ms Marino, applies against the defendant, St Bartholomew's House Inc, for an injunction requiring the defendant to permit the plaintiff to stay at accommodation at Kensington Street until all legal matters between the plaintiff and the defendant are finalised or for the full length of the contracted term, and also for an injunction restraining the defendant from further denigration, intimidation, humiliation, discrimination and bullying upon the plaintiff.[1]

   [1] The submissions at this hearing were limited to the urgent matter of the plaintiff's accommodation.

2. The application was made today by a notice of originating summons supported by an affidavit made by the plaintiff.  It was listed today urgently.  The defendant had notice of the application this afternoon.  It has not had time to instruct a lawyer, but Ms Ulyett, the defendant's general manager, has attended and I have given her leave in the circumstances to speak on behalf of the defendant.

3. The facts as I see them from the material before me are that on 6 October 2015 the plaintiff entered into a licence to occupy premises at Kensington Street with the defendant.  That licence was for a period of 12 months and it has a Term 11.2.3 that says:

   The landlord may terminate this agreement if the resident is given a termination notice as per policies and procedures for breaches of the house rules, with a minimum notice of two hours and a maximum of seven days.

4. It is clear that disputes have arisen between the plaintiff and officers of the defendant and I am not in a position today to make final findings as to who is in the right and who is in the wrong, but it is quite clear from the passionate way that Ms Marino has spoken today that she feels very strongly that she is not in the wrong and the defendant and its officers have not done the right thing by her or by other residents at the accommodation.

5. These disputes led to a letter from the defendant to the plaintiff that at 23 May 2016 in which Ms Merry, the defendant's manager of housing services, requested a meeting as soon as possible to discuss issues between them and, in particular, what Ms Merry said was communication by the plaintiff in an 'aggressive and threatening manner'.  Following that letter, on 30 May 2016, Ms Merry sent another letter to Ms Marino which was a notice to vacate and, in the letter, Ms Merry said that Ms Marino had not contacted the defendant as requested in the letter of 23 May 2016, that the house rules clearly state that physical violence, verbal abuse, sexual general harassment, racism, stalking and intimidation by a resident or their visitors will result in immediate eviction, that Ms Marino had been reminded on several occasions to engage more respectfully with staff but she had not done so, and so Ms Merry was providing Ms Marino with seven days' notice to leave Kensington Street.

6. As I have said, I am not in a position today to say whether in fact there has been this behaviour by Ms Marino that is set out in that letter, but from the defendant's perspective that is what led to the issue of that letter.

7. Ms Marino did not leave.  She did get some advice from Street Law Centre because they wrote a letter to her on 1 June 2016 explaining some rights she had and proposing that they be involved in some form of mediation.

8. Then, on 7 June 2016 at approximately 12.30 pm, Ms Merry went to the plaintiff's accommodation and asked her to leave and Ms Marino refused to do so.  At approximately 5.30 pm, police arrived and it appears that they arrested Ms Marino after forcing entry into her accommodation and it appears that they charged her with trespass and released her on bail.  When Ms Merry spoke to the plaintiff on 7 June 2016, she offered to give back a week's rent, but the plaintiff refused to accept that.

9. Since being evicted from the premises, Ms Marino, the plaintiff, has been living homeless and this is very difficult for her and her difficulties are compounded by her need to catch up with her studies and pursue her studies for qualification as a counsellor.

10. The principles upon which I consider the application for an injunction are explained in a decision of the High Court in Castlemaine Tooheys v State of South Australia, where the then Mason ACJ said that to obtain an injunction the plaintiff must show that there is a serious question to be tried, that the plaintiff will suffer irreparable injury unless an injunction is granted and that the balance of convenience favours the granting of an injunction.[2]

    [2] Castlemaine Tooheys v State of South Australia (1986) 161 CLR 148, 153 (Mason ACJ).

11. It appears to me on the papers that I have that the agreement between the plaintiff and the defendant was probably not a residential tenancy, but that the plaintiff had a licence as a boarder or lodger and so the Residential Tenancies Act 1987 (WA) does not apply.

12. As I have said, I do not purport to be able to say today who is in the right or who is in the wrong.  I accept that there are two points of view and so, in that sense, there is an issue in dispute that I cannot resolve today.  It seems to me that this application turns on the balance of convenience.  It is quite clear that the relationship between the plaintiff and the defendant has broken down.  It got to the stage where police felt compelled to force their way into the accommodation.  The plaintiff is no longer living at the defendant's accommodation.

13. In my view, it would be completely unsustainable for me to require the defendant to take the plaintiff back into its accommodation in the circumstances where the relationship has broken down in the manner that I assess.  Therefore, I conclude that the balance of convenience does not lie in granting an injunction, and I refuse the plaintiff's application.