Miles v Campus Living Villages Murdoch Pty Ltd - [2015] WASC 350

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MILES -v- CAMPUS LIVING VILLAGES MURDOCH PTY LTD [2015] WASC 350

CORAM: PRITCHARD J

HEARD: 17 SEPTEMBER 2015

DELIVERED : 17 SEPTEMBER 2015

FILE NO/S: CIV 2486 of 2015

BETWEEN: KEITH IAN MILES
Plaintiff
AND
CAMPUS LIVING VILLAGES MURDOCH PTY LTD
BAYCORP PTY LTD
Defendants

Catchwords:

Injunction - Interlocutory injunction - Whether to restrain defendants from evicting plaintiff pending review of orders made by Magistrates Court - Whether Supreme Court has jurisdiction to grant injunctive relief or to suspend enforcement

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 25
Magistrates Court Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 17
Rules of the Supreme Court 1971 (WA), O 52 r 1(3)
Supreme Court Act 1935 (WA), s 25

Result:

Injunction granted

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendants: No appearance

Solicitors:

Plaintiff: In person
Defendants: No appearance

Cases referred to in judgment:

Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Eastcott-Layton v Fast Bucks [1999] WASC 57
Hart-Roach v Cady [2011] WASC 90
Horsman v MG Kailis Pty Ltd [2009] WASC 166
Owners of the Cargo on board the Siskina v Distos Compania Naviera SA [1979] AC 210
Re Potter; Ex parte Coppin [2013] WASC 462

PRITCHARD J: Mr Miles has made an urgent application for injunctive relief (the Application) to prevent his eviction from the room in which he resides in student accommodation at Murdoch University (the student village). The Application was heard on an urgent ex parte basis yesterday evening, 16 September 2015, and early this morning, 17 September 2015. In the course of the hearing this morning, I was satisfied that Mr Miles had demonstrated a sufficient basis to warrant the grant of an interlocutory injunction, on an interim basis, and on certain conditions, pending a further hearing of his Application, on notice to the defendants, next week, 23 September 2015. I indicated that I would provide reasons for my decision to grant the interlocutory injunction. These are those reasons.

The Application

The Application was made by an Originating Summons dated 16 September 2015, and was supported by an affidavit sworn by him on the same date.
In the Originating Summons, Mr Miles named the defendants as 'Campus Living Villages (CLV)' and the 'Bailiff's Office'. Documents filed in support of the Application suggested that the correct name of the first of those parties was Campus Living Villages Murdoch Pty Ltd. Mr Miles also advised that the bailiff in this case was a company called 'Baycorp'. Accordingly, I made an order that the names of the defendants be amended to reflect what appeared to be their correct corporate identities.
In the Originating Summons, Mr Miles sought a number of orders, namely:
(i)a prohibitory injunction to stay execution of a bailiff's order, until the conclusion of proceedings that Mr Miles intends to commence in the Federal Court against Campus Living Villages Murdoch Pty Ltd (CLV);
(ii)an order compelling CLV to reinstate him as a resident of the university village at Murdoch University, and to 'reinstate [his] address back to the village';
(iii)an order compelling CLV to reinstate all his rights to attend village functions as a resident of the village;
(iv)an order to restrain an employee of CLV from 'allowing me to visit my friends' (sic) in another building in the student village; and
For the purposes of the Application it was necessary only to consider the first of those orders.
Mr Miles requested that his Application be heard on an urgent basis as he understood that Baycorp intended to enforce an order made by the Fremantle Magistrates Court to evict him from his room at the student village at 9.00 am this morning.
Mr Miles delivered the Originating Summons and his affidavit at around 5.00 pm yesterday evening. Following delivery of the papers to me, I listed the matter for an ex parte hearing at 6.00 pm. In the course of that hearing, I identified a number of aspects of the Application that appeared to pose some difficulties in respect of the grant of relief. Mr Miles sought an adjournment until 8.00 am this morning to permit him to consider those matters and to attempt to contact Baycorp's office to request that the eviction not proceed this morning.
Shortly before 8.00 am this morning, Mr Miles contacted my Associate to advise that he would be late in arriving at the Court, and to request that the hearing be deferred until 8.30 am. After hearing, further submissions from Mr Miles, and after an adjournment to permit Mr Miles to make some enquiries as to what had transpired, the hearing resumed at approximately 9.45 am. At that point in time, Mr Miles advised that he was not sure whether the eviction had taken place by that time, but that it may not yet have taken place. It was on that basis ‑ that the eviction had not by then taken place ‑ that at 10.00 am this morning, I made orders granting an interlocutory injunction, on an interim basis, pending a further hearing of the Application next week.

The factual background

Mr Miles' affidavit inadequately outlined the facts and circumstances on which the Application was based. The following narrative is derived from the content of his affidavit and from what he told the Court in the course of the hearing.
Mr Miles is a full‑time student, who has been living at the student village. He appears to have had a dispute with CLV, which manages the student village, about the quality of the room allocated to Mr Miles. Mr Miles says he plans to commence proceedings against CLV in the Federal Court in respect of that dispute. That dispute is irrelevant to the Application.
A further dispute also appears to have arisen between Mr Miles and CLV in relation to unpaid rent. Mr Miles accepts that his rent is in arrears at present, but says that he intends to repay the amount owing. He advised that the amount owing is $1,400.
Mr Miles deposed that on the evening of 4 September 2015, he returned to his room at the student village and discovered some 'court paperwork' which had been placed under his door. A copy of that 'paperwork' was not annexed to his affidavit. In the hearing this morning, Mr Miles handed up a copy of an order made on 4 September 2015 by the Magistrates Court at Fremantle (the Order) in proceedings pursuant to the Residential Tenancies Act 1987 (WA) (the RT Act). The plaintiff to those proceedings is named in the Order as Campus Living Villages Murdoch Pty Ltd. The orders made by the Magistrates Court included:
The Residential Tenancy Agreement for the premises at Murdoch University, 90 South Street, Murdoch shall terminate forthwith. The Tenant shall deliver up possession of the said premises forthwith.
Having regard to the terms of the Order, I have assumed that Mr Miles resides at the student village pursuant to a residential tenancy agreement between himself and CLV, and that that residential tenancy agreement is governed by the terms of the RT Act.
Mr Miles deposed that he was 'never served papers informing me about a court action on or about the 4th of September 2015, at Fremantle Magistrates Court, by CLV'.
Mr Miles also deposed that he was left a voicemail message by the General Manager of CLV advising him to vacate his room by 7 September 2015.
On 7 September 2015, Mr Miles attended at the Fremantle Magistrates Court and filed two applications. A copy of each of those applications, together with an affidavit he filed in support of those applications, was annexed to the affidavit Mr Miles filed in support of the Application.
The first application which has been filed by Mr Miles in the Magistrates Court is an application headed 'Application for Suspension Order' pursuant to the Civil Judgments Enforcement Act 2004 (WA) (the CJE Act), in which Mr Miles makes an application 'for an order to suspend the enforcement of all or part of the judgment'. The second application filed by Mr Miles was headed 'Application to Vary or Set Aside Order' pursuant to s 17 of the RT Act. Mr Miles sought that the Order be set aside on the ground that he 'was not served with the papers regarding this matter'. In the affidavit he filed in the Magistrates Court in support of those applications, Mr Miles deposed:
I have some arrears rent which I propose to pay.
…
I was not served with the papers regarding my eviction at the Magistrates Court.
Therefore I ask for the order to be set aside.
Each of those applications is listed for hearing at the Magistrates Court at Fremantle on Friday 25 September 2015.
In the affidavit, he swore in support of the Application, Mr Miles deposed that 'the Bailiff's office rang me on Monday 14th of September 2015 and asked me to vacate the premises at 90 South Street Murdoch … by 9am Thursday 17th of September 2015'.
The factual position appeared to be that Baycorp proposed to take action to evict Mr Miles and thus to enable CLV to enforce its order for possession of Mr Miles' room at the student village, and that that action would be undertaken pursuant to the Order made by the Magistrates Court (or perhaps some ancillary order made by the Magistrates Court for the enforcement of that Order).
Mr Miles deposed that he sought the injunction to prevent the eviction proceeding until the Magistrates Court hearing listed on 25 September 2015, although he also sought that the injunction continue until the proceedings in the Federal Court (which he has not yet commenced) were completed.
In his affidavit, Mr Miles did not address the implications for him of eviction from his room at the student village. However, he advised the Court that, if he is evicted, he presently has nowhere else to live.

The basis on which injunctive relief was sought

Mr Miles has not commenced any proceedings in this Court in respect of the dispute he has had with CLV, or in respect of the proceedings in the Magistrates Court which resulted in the Order made by that Court on 4 September 2015.
Mr Miles initially sought injunctive relief on the basis that this Court has the power to grant an injunction. He referred me to a number of provisions of the Supreme Court Act 1935 (WA) including s 25(9) of that Act, which make clear that the Court has the power to grant an injunction, including an interlocutory injunction. That the Court has the power to grant injunctive relief cannot be doubted. But its power to do so is not unlimited. In Cardile v LED Buildings Pty Ltd,[1] the plurality discussed the power of a court of equity to grant an injunction, and observed:
…in England, it is now settled by several decisions of the House of Lords that the power stated in Judicature legislation ‑ that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so ‑ does not confer an unlimited power to grant injunctive relief. Regard must still be had to the existence of a legal or equitable right which the injunction protects against invasion or threatened invasion, or other unconscientious conduct or exercise of legal or equitable rights. The situation thus confirmed by these authorities reflects the point made by Ashburner that 'the power of the court to grant an injunction is limited by the nature of the act which it is sought to restrain. (citations omitted).
[1] Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380, 395 [31].
As I advised Mr Miles on several occasions during the hearing, the difficulty with the Application was that he sought the grant of injunctive relief, apparently as a cause of action in and of itself, and independently of the pursuit of any cause of action, or other proceeding to review or appeal the Orders, in this Court. The Court's power to grant an injunction is usually dependent upon there being a pre‑existing cause of action against the defendant arising out of an invasion, actual or threatened, of a legal or equitable right.[2]
[2] Owners of the Cargo on board the Siskina v Distos Compania Naviera SA [1979] AC 210, 256.
Although not entirely clear, the position appears to be that in evicting Mr Miles, Baycorp would be acting pursuant to the Order made by the Magistrates Court. Until that Order is set aside, or suspended, it is not clear how there would be any basis for this Court to grant an injunction to restrain Baycorp from carrying out the eviction. Although Mr Miles has commenced proceedings in the Magistrates Court to set aside the Orders made on 4 September 2015, it was not apparent that this Court would have jurisdiction to suspend the operation of the Orders, or to grant injunctive relief, in the absence of proceedings in this Court to set aside or review those Orders.
Under s 15 of the CJE Act, a person against whom a judgment (which includes an order of a court requiring the person to give possession of any property to another person[3]) is given may apply for an order suspending the enforcement of all or part of the judgment. That application may be made to the court that gave the judgment or a court that is dealing with an appeal against the judgment. As Mr Miles had not commenced an application in this Court in respect of the Orders, no power lies in this Court to suspend the enforcement of those Orders under s 15 of the CJE Act.
[3] Civil Judgments Enforcement Act 2004 (WA) s 3.
Under the RT Act, the Magistrates Court has jurisdiction (with some exceptions, which do not appear to be presently relevant) to hear disputes in respect of matters that may be the subject of applications under the RT Act.[4] Under that Act, applications may be made to the Magistrates Court for relief including orders for the payment of money payable under a residential tenancy agreement,[5] or orders terminating a residential tenancy agreement.[6] There are very limited rights of review in respect of the orders made by the Magistrates Court under the RT Act. If an order is made by a Registrar, it can be appealed to a Magistrate.[7] Otherwise, there are no rights of appeal against decisions of the Magistrates Court under the RT Act.[8]
[4] Residential Tenancies Act 1987 (WA) s 12A and s 13.
[5] Residential Tenancies Act 1987 (WA) s 15(2).
[6] Residential Tenancies Act 1987 (WA) s 71.
[7] Residential Tenancies Act 1987 (WA) s 13B.
[8] Residential Tenancies Act 1987 (WA) s 26(1).
There are also limited rights of review of orders made by the Magistrates Court under the RT Act.[9] Section 26(2) of the RT Act provides that no orders for review may be made under s 36 of the Magistrates Court Act 2004 (WA) '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'.
[9] See the discussion in Re Potter; Ex parte Coppin [2013] WASC 462 [23] (Beech J).
Eventually, in the course of the hearing this morning, Mr Miles advised that he wished to commence proceedings in this Court for the review of the decision of the Magistrates Court. I gathered by that submission that Mr Miles now intends to make an application to this Court, pursuant to s 36 of the Magistrates Court Act for the review of the Order made by the Magistrates Court on 4 September 2015 on the ground that he was denied natural justice because he was not served with the application made by CLV to the Magistrates Court, and was not given an opportunity to be heard in relation to whether an order should be made terminating his tenancy agreement.
In light of that foreshadowed course of action, it appeared that this Court may have jurisdiction to grant injunctive relief or analogous to preserve the status quo, and to prevent Mr Miles' eviction, while those proceedings are being resolved. In the event that an application for a review of the Orders is made, this Court's jurisdiction to act to preserve the status quo would appear to derive either from its power to grant an interlocutory injunction to prevent the eviction, or from its power to suspend an enforcement order made under the CJE Act, pending its determination of the review of the Orders.
Order 52 r 1(3) of the Rules of the Supreme Court 1971 (WA) provides:
In the case of urgency a person who intends to begin proceedings may make an application for the grant of an injunction before the issue of the writ or originating summons by which the cause or matter is to be begun, and the Court may grant the application on terms providing for the issue of the writ or originating summons, and such other terms, if any, as the Court thinks fit.
The usual practice is that if an order is made in such circumstances as are described in that rule, a condition will be included that the plaintiff file originating proceedings in the Court.[10]
[10] See, eg, Eastcott-Layton v Fast Bucks [1999] WASC 57 [4] (Miller J); Hart-Roach v Cady [2011] WASC 90 [10] (Commissioner Sleight).
In respect of an application for suspension under s 15 of the CJE Act, the Court may make such an order if there are special circumstances that justify doing so[11] and it may deal with the application for suspension in the absence of the person entitled to the benefit of the judgment if it is just to do so.[12] I formed the view that I had jurisdiction to deal with the Application on this basis.
[11] Civil Judgments Enforcement Act 2004 (WA) s 15(3).
[12] Civil Judgments Enforcement Act 2004 (WA) s 15(2).

The merits of the Application

The principles in relation to the grant of an interlocutory injunction are well established.[13] First, a plaintiff must show that there is a serious question to be tried or must make out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff would be entitled to relief. Secondly, the plaintiff must show that if the injunction is not granted, the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation. Thirdly, the plaintiff must demonstrate that the balance of convenience favours the grant of an injunction.[14]
[13] See, eg, Horsman v MG Kailis Pty Ltd [2009] WASC 166 [90] (Beech J).
[14] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, 153; Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, 217 - 218.
Insofar as the prima facie case in question is concerned, it is enough to show that there is a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending final hearing. How strong the likelihood of success needs to be depends upon the nature of the plaintiff's asserted rights and the practical consequences likely to flow from the orders sought.[15] Whether there is a serious question to be tried and whether the balance of convenience favours the grant of an injunction are not wholly independent inquiries. Rather, all of the factors must be considered together. Nevertheless, for the purposes of the following discussion, it is convenient to deal separately with each of the various considerations.
[15] Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 81 - 84.
As I have already observed, Mr Miles' affidavit did not adequately set out the factual circumstances. But if it is the case, as Mr Miles has deposed, that he was not served with notice of proceedings in the Magistrates Court, or given the opportunity to be heard in relation to whether an order should be made to terminate the tenancy agreement and requiring him to give up possession of his room, he would appear to have an arguable case that he was denied natural justice in respect of the proceedings before the Magistrates Court.

I note that under s 71(2) of the RT Act, that before the Court makes an order terminating the agreement and for possession of the premises, the Court must be satisfied that notice of the termination has been given by the lessor to the tenant, and that that notice complied with and was given in accordance with the RT Act. Whether that notice was given in this case would be a matter for evidence in the course of Mr Miles' foreshadowed application to this Court for a review of the Order. For the moment, the only evidence before the Court is Mr Miles' evidence that he was not given any notice at all of the proceedings before the Magistrates Court.
Turning to the balance of convenience, and whether damages would be an adequate alternative remedy, as I have already observed, Mr Miles informed the Court that if he is evicted, he will have nowhere else to live. For present purposes, that is a compelling basis for concluding that the balance of convenience favours the grant of an interlocutory injunction, and that damages would not be an adequate alternative remedy.
I should add that I was satisfied that even if the proper basis for relief in the present case was the grant of a suspension order pursuant to s 15 of the CJE Act, this was a case in which special circumstances existed which warranted the grant of relief to preserve the status quo, on an interim basis, and pending a further hearing of the Application.
In the circumstances, I was therefore satisfied that an interlocutory injunction should be granted, on an interim basis, pending further hearing on notice to the defendants. I made that order, however, subject to two conditions, namely that Mr Miles files in this Court his foreshadowed application for a review of the Order made by the Magistrates Court, and that Mr Miles provide the usual undertaking as to damages.
I also made orders that Mr Miles serve the defendants to the Originating Summons with a copy of the Summons, his affidavit in support, and the orders I made today. The service of those orders will put the defendants on notice that Mr Miles' application for an interlocutory injunction is to be further heard on 23 September 2015, at which point the defendants will have the opportunity (should they wish to be heard) to make submissions in relation to whether the interlocutory injunction should be continued or discharged.