| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : McCARTHY -v- HILL (RAY WHITE ROCKINGHAM) [2013] WADC 78 CORAM : SLEIGHT DCJ HEARD : 12 DECEMBER 2012 DELIVERED : 12 DECEMBER 2012 PUBLISHED : 21 MAY 2013 FILE NO/S : APP 92 of 2012 BETWEEN : LAWRENCE EDWARD McCARTHY Appellant
AND
BRIAN HILL (RAY WHITE ROCKINGHAM)
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE TEMBY File No : RO 663 of 2012 Appeal Result : APPEAL DISMISSED (Page 2)
Catchwords: Landlord and tenant - Residential Tenancy Act 1987 - No jurisdiction to hear appeal against the magistrate's decision to terminate tenancy - Power to remit to the Supreme Court for an order to review Legislation: Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court Act 2004
Residential Tenancy Act 1987 (WA) Result: Appeal dismissed
Representation: Counsel:
Appellant : In person
Respondent : Ms A Thomas
Solicitors:
Appellant : Not applicable
Respondent : HFM Legal
Case(s) referred to in judgment(s):
Miller v McCormick [No2] [2012] WASC 347
Re Burton; Ex Parte Lowe [2003] WASCA 306
(Page 3)
1 SLEIGHT DCJ: At the hearing of this appeal, I dismissed the appeal for reasons I stated briefly, with more detailed reasons to follow. These are those more detailed reasons.
2 This is an appeal against an order of termination of tenancy made by his honour Magistrate Temby pursuant to the Residential Tenancy Act 1987 (WA) (theRTA) and relating to premises at 5 Willis Street, Warnbro.
Background 3 The premises are owned by the respondent Mr Hill. The appellant, Mr McCarthy, occupied the premises pursuant to a lease document dated 2 December 2011 (the tenancy agreement) which provided for the commencement of a 12-month lease on 3 December 2011 at a weekly rental of $270 per week. This lease agreement was an extension of an earlier 12-month lease. 4 On 20 June 2012 the real estate agents acting for Mr Hill lodged at Rockingham Magistrates Court an application for a court order (Form 12) under the RTA. The application sought in relation to the premises orders for 'Termination of the lease agreement. Vacant possession of the property to owner forthwith. Damages adjourned to a later date for release of bond '. The return date endorsed on the application for the hearing of the application was 10 July 2012. 5 A service copy of the application dated 20 June 2012 also issued from the court. This service copy incorrectly described the premises as 5 Willis Street, Rockingham. 6 On 10 July 2012 a registrar made an order for termination of the tenancy agreement as from 10 July 2012 and ordered Mr McCarthy to deliver up the premises as from 17 July 2012. 7 Mr McCarthy lodged an appeal against the order under s 29 of the Magistrates Court Act 2004 which provides a right of an appeal to a magistrateagainst any decision of a registrar. On 16 August 2012 Magistrate Richardson set aside the order of the registrar and re-listed the matter for a fresh hearing on 25 October 2012. 8 At a hearing before Magistrate Temby on 25 October 2012 evidence was given that Mr McCarthy had fully paid rental up to 15 May 2012. At about this time Mr McCarthy ascertained on his mobile phone that the property at 5 Willis Street, Warnbro was given on a website as the place (Page 4)
of business of a web design company, Webhut Web Design. This website had apparently been created by an earlier tenant. Mr McCarthy claimed that the recording of the premises as the address on the website constituted a substantial breach of privacy. Mr McCarthy complained about the website to the managing agents, Ray White Rockingham. When they failed to resolve the issue to Mr McCarthy's satisfaction he stopped paying rent. At the hearing Mr McCarthy was unable to indicate to the magistrate how the address on the website interfered with his right of quiet enjoyment of the premises and the only inconvenience suffered by him was the occasional item of mail being delivered to the premises addressed to the previous tenants. 9 At an adjourned hearing on 8 November 2012 the magistrate made orders for termination of the tenancy and granted possession to the owner as at 30 November 2012. 10 On 30 November 2012 her Honour Judge Wager made an order staying the orders of Magistrate Temby pending the hearing of the appeal.
Appeal to the District Court: 11 Mr McCarthy appeals to this court against the magistrate's decision. The particulars filed by Mr McCarthy of his purported appeal are on the following grounds (as best I can ascertain from the written documents filed by him): (i) Mr McCarthy claims he was denied natural justice by the agents, Ray White Rockingham, as they failed to disclose the use of the tenancy address on a website for WebHut Web Design. (ii) Mr McCarthy complains that on 19 April 2012 he was abused by the agent's representative in relation to the state of cleanliness of the oven on the premises. (iii) Mr McCarthy complains that Ray White Rockingham incorrectly credited payments for water against rent. (iv) Mr McCarthy complains that Ray White Rockingham failed to answer Mr McCarthy's telephone calls or deal with his complaints. (v) Mr McCarthy complains he was denied natural justice because the Department of Commerce had a conflict of (Page 5)
interest as the holder of tenancy bonds and being the regulator of real estate agents. (vi) Mr McCarthy complains that he did not receive natural justice in relation to the processes of the Magistrates Court as the owner misrepresented to the court that all aspects of the Residential Tenancy Act had been adhered to. 12 For reasons set out below the appeal is misconceived and should be dismissed as this court has no jurisdiction. 13 Section 26 of the RTA provides as follows: (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. 14 The effect of s 26 of the RTA is that an order made by a court under the Act is final and binding. Normally appeals from the Magistrates Court, when exercising civil jurisdiction, are to the District Court under s 40 of the Magistrates Court (Civil Proceedings Act) 2004. However the effect of s 26 of the RTA is that any such appeal is barred in respect of matters under the RTA: Miller v McCormick[No2] [2012] WASC 347 [16]. 15 Although normally there are no rights of appeal against a decision of a magistrate under the RTA, under s 36 of the Magistrates Court Act 2004, the Supreme Court has powers to control the Magistrates Court by way of a review order. The power of the Supreme Court to make a review order is limited under s 26(2) of the RTA to circumstances where the Supreme Court is satisfied that the Magistrates Court had or has no (Page 6)
jurisdiction conferred by or under the RTA in respect to the proceedings or that a party to the proceedings has been denied natural justice. 16 The question that arises is whether I should remit this matter to the Supreme Court. The power to remit a matter exists under s 36(7) of the Magistrates Court Act 2004 which provides: (7) If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may — 17 I conclude that it is not appropriate to remit the matter to the Supreme Court taking into account the following factors: 1. Firstly, Mr McCarthy's occupancy of the premises was pursuant to a written lease agreement dated 2 December 2011 which provided for a term of 12 months, commencing on 3 December 2011 and expiring on 2 December 2012. This lease has now expired and therefore the owner, independently of the order made on 8 November 2012 terminating the tenancy, would be entitled to obtain an order for immediate possession. 2. Secondly, I conclude from the particulars of the grounds of appeal filed by Mr McCarthy that they do not disclose a reasonably arguable case for a review order. As stated above, the grounds of a review order are restricted to: (a) a jurisdictional question; or (b) a denial of natural justice. 18 There are no grounds raised by Mr McCarthy as to the jurisdiction of the court. Accordingly, the sole ground upon which a review order could be made in relation to the issues raised by Mr McCarthy relate to a claim of denial of natural justice. (Page 7)
19 The issue of natural justice relates to the court process itself. The rules of natural justice were explained in the decision of Re Burton; Ex Parte Lowe & Anor [2003] WASCA 306 as follows: The rules of natural justice have two substantive requirements: first, that a decision-maker gives an opportunity to be heard to a person whose interests will be affected adversely by the decision; and, secondly, that the decision-maker be a person who is disinterested or unbiased in the matter to be decided. These two rules are called respectively the "hearing rule" and the "bias rule". It is sometimes suggested there is a third rule required by natural justice - the "no evidence" rule - which requires that the decision be based upon logically probative evidence. See, for example, the grounds for review available under the Administrative Decisions (Judicial Review) Act (Cth), s 5(1)(h), s 5(3), and s 6(1)(h), s 6(3). However, the third suggested rule is not universally acknowledged to be part of the general law of natural justice. In this application, we are only concerned with the hearing rule. It is accepted that the hearing rule is not rigid and that it is necessary to have regard to the particular legislative framework in which a decision must be made in order to determine whether the procedure adopted by a decision-maker is fair in the circumstances of the case. As Mason J said in Kioa v West (1985) 159 CLR 550, at 584 – 585: "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." The content of hearing rule was explained by the Full Court of the Federal Court of Australia in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 591 - 592, in terms recently referred to with approval by Gleeson CJ, Gummow and Heydon JJ in a joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; [2003] HCA 56, at [22]: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would (Page 8)
not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."[63 - 65] 20 In my opinion none of the matters raised by Mr McCarthy on this appeal constitute grounds for complaining that he has been denied natural justice as they do not relate to the court process itself. There was no complaint by Mr McCarthy that he was not given a proper opportunity to be heard before the magistrate. Nor is there any complaint by Mr McCarthy as to any bias on the part of the magistrate. Further, none of the grounds of appeal raised by Mr McCarthy allege the decision of the magistrate was not based upon logical probative evidence. 21 Accordingly, I have been unable to identify any grounds for making a review order and therefore conclude that it is inappropriate to remit the matter to the Supreme Court. Further, I take into account that to remit the matter to the Supreme Court would potentially create an injustice to the owner Mr Hill by denying Mr Hill his entitlement to receive possession immediately.
Orders 22 The orders I make are as follows: 1. The application to remit the matter to the Supreme Court is dismissed. 2. The appeal is dismissed 3. The costs of the respondent of the appeal be paid by the applicant Mr McCarthy, if not agreed, then to be taxed.
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