BETWEEN: GREGORY MICHAEL MILLER
Appellant
AND
STUART BROWN
First Respondent
GORDON KEAY
Second Respondent
BRIAN MARSHALL
Third Respondent
BRENDA PIMLOTT
Fourth Respondent
JACK RICKS
Fifth Respondent
GRAHAM GREAY
Sixth Respondent
ARTHUR CRABBE
Seventh Respondent
RODNEY ALLISTER
Eighth Respondent
MERVYN GOODCHILD
Ninth Respondent
DAMIEN PAVY
Tenth Respondent
PAUL NARDUCCI
Eleventh Respondent
BRIAN MARRIS
Twelfth Respondent
PETER BACKSHALL
Thirteenth Respondent
IAN COUGHLIN
VALERIE COUGHLIN
Fourteenth Respondent
JOHN MORTIMER
Fifteenth Respondent
WILLIAM LOVE
Sixteenth Respondent
BRIAN SHUGG
Seventeenth Respondent
MARGARET TRIPLETT
Eighteenth Respondent
LEONARD LITTLE
JOAN LITTLE
Nineteenth Respondent
GEORGE BENNETT
MARGARET BENNETT
Twentieth Respondent
ROSE TRIPLETT
Twenty First Respondent
BARRY THOMAS
Twenty Second Respondent
SHANE DAVIS
Twenty Third Respondent

Catchwords:

Appeal from Magistrates Court - Decision that Magistrates Court had no jurisdiction to hear application under the Residential Tenancies Act 1987 - Right of appeal and limited right of judicial review under the Residential Tenancies Act 1987 - Jurisdiction of the District Court to hear appeal - Meaning of "premises" and "residential tenancy agreement" - Whether there was a residential tenancy agreement

Legislation:

Magistrates Court (Civil Proceedings) Act 2004, s 10, s 43
Magistrates Court Act 2004, s 36
Residential Tenancies Act 1987, s 26

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Mr P Bevilacqua
First Respondent     :     No appearance
Second Respondent     :     No appearance
Third Respondent     :     No appearance
Fourth Respondent     :     No appearance
Fifth Respondent     :     No appearance
Sixth Respondent     :     No appearance
Seventh Respondent     :     No appearance
Eighth Respondent     :     No appearance
Ninth Respondent     :     No appearance
Tenth Respondent     :     No appearance
Eleventh Respondent     :     No appearance
Twelfth Respondent     :     No appearance
Thirteenth Respondent     :     No appearance
Fourteenth Respondent     :     No appearance
Fifteenth Respondent     :     No appearance
Sixteenth Respondent     :     No appearance
Seventeenth Respondent     :    No appearance
Eighteenth Respondent     :     No appearance
Nineteenth Respondent     :     No appearance
Twentieth Respondent     :     No appearance
Twenty First Respondent     :    No appearance
Twenty Second Respondent     :    No appearance
Twenty Third Respondent :     No appearance

Solicitors:

Appellant:     Thompson Legal Pty Ltd
First Respondent     :     HHG Legal Group
Second Respondent     :     Not applicable
Third Respondent     :     HHG Legal Group
Fourth Respondent     :     HHG Legal Group
Fifth Respondent     :     Not applicable
Sixth Respondent     :     HHG Legal Group
Seventh Respondent     :     Not applicable
Eighth Respondent     :     HHG Legal Group
Ninth Respondent     :     HHG Legal Group
Tenth Respondent     :     HHG Legal Group
Eleventh Respondent     :     HHG Legal Group
Twelfth Respondent     :     HHG Legal Group
Thirteenth Respondent     :     HHG Legal Group
Fourteenth Respondent     :     Not applicable
Fifteenth Respondent     :     HHG Legal Group
Sixteenth Respondent     :     HHG Legal Group
Seventeenth Respondent     :    Not applicable
Eighteenth Respondent     :     Not applicable
Nineteenth Respondent     :     HHG Legal Group
Twentieth Respondent     :     HHG Legal Group
Twenty First Respondent     :    HHG Legal Group
Twenty Second Respondent     :    HHG Legal Group
Twenty Third Respondent :…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Miller v Brown

Details

AGLC: Miller v Brown [2010] WADC 102
Case: [2010] WADC 102
Decision Date: 2 JULY 2010

CaseChat Overview and Summary

This case is an appeal by the applicant, Miller, against a decision of the Magistrates Court of Western Australia, which found that it had no jurisdiction to hear the applicant's application. The respondent, Brown, is the party against whom the application was made. The application was made under the Residential Tenancies Act 1987, and the dispute concerns whether there was a residential tenancy agreement between the parties and, if so, the validity of an order made by the Magistrates Court. The appeal was brought to the District Court of Western Australia, which has jurisdiction to hear appeals from the Magistrates Court in certain circumstances.

The legal issues before the court were whether the Magistrates Court had jurisdiction to hear the application, and if not, whether the District Court had jurisdiction to hear an appeal from that court. The court had to determine the meaning of "premises" and "residential tenancy agreement" under the Act, and whether there was a residential tenancy agreement between the parties. The court also had to decide whether there was a right of appeal from the Magistrates Court to the District Court, and if so, whether the appeal was properly before the District Court.

The court found that the Magistrates Court had no jurisdiction to hear the application as there was no residential tenancy agreement between the parties. However, the court held that the District Court did have jurisdiction to hear an appeal from the Magistrates Court, as the appeal was brought under s 40 of the Magistrates Court (Civil Proceedings) Act. The court held that the Magistrate's decision to refuse jurisdiction was a refusal to exercise jurisdiction, and not an error in exercising jurisdiction. The court found that the appeal was properly before it, and that the appeal should be remitted to the Supreme Court for review.

The final orders of the court were that the appeal be remitted to the Supreme Court for review, and that costs of the appeal be paid by the respondent. The court also found that the District Court did not have jurisdiction to hear the appeal, and that the appeal should have been brought directly to the Supreme Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

What is sought in this appeal overlaps with relief that might be granted pursuant to a review order in the nature of mandamus. An order in the nature of mandamus will usually be available where there has been an error which amounts to a refusal or failure, whether actual or constructive, to exercise jurisdiction. If a tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be "an actual failure to exercise jurisdiction" to which mandamus applies: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41]. The option to have this appeal remitted to the Supreme Court pursuant to s 36(7) of the Magistrates Court Act is not open to me because of the express words of s 26 of the Residential Tenancies Act. In disputes concerning residential tenancies, s 26(2) gives a limited right to judicial review. The Supreme Court has jurisdiction on such a review only if satisfied that the Magistrate had or has no jurisdiction to determine the proceedings (a limited form of jurisdictional error) or that there has occurred a denial of natural justice to any party to the proceedings: see Re Burton; Ex parte Lowe & Anor [2003] WASCA 306 at [61]; Re Burton; Ex parte Rowell & Anor [2006] WASC 277 at [4]; De Alwis v Department of Housing and Works t/as HomesWest [2006] WASC 14 at [19]. So far as jurisdictional error is concerned, s 26(2) provides for erroneous assumptions of jurisdiction to be checked by judicial review, but not erroneous refusals to exercise jurisdiction: see Public Service Association (SA) v Federated Clerks' Union (SA Branch) (1991) 173 CLR 132 at 141 ‑ 142, 160 ‑ 161. The Magistrate's decision here was of the second type, that is a refusal to exercise jurisdiction which, as Mr Miller submits, was erroneous. A refusal to exercise jurisdiction, pursuant to s 26(2) of the Residential Tenancies Act, cannot be the subject of judicial review. It is therefore necessary for me to determine whether, in respect of the Magistrate's decision on jurisdiction, Mr Miller has a general right of right of appeal pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act, which allows an appeal against any order made by the Magistrates Court in the course of proceedings in a case, or whether that provision does not apply because of s 26(1) of the Residential Tenancies Act. In disputes concerning residential tenancies, s 26(1) expressly excludes any right of appeal from an order made "under the Act". In submissions filed on behalf of Mr Miller addressing this issue of the District Court's jurisdiction to hear this appeal, it has been submitted that at no time was jurisdiction under the Residential Tenancies Act exercised as there was no order made by the Magistrates Court under the Act, so that s 26(1) could not apply to prevent an appeal from that court to the District Court. I understand this submission to mean that since the Magistrate's decision was one concerning jurisdiction, and not a decision on the substantive issues, it was not an order made in the exercise of jurisdiction under the Residential Tenancies Act.

Citations

AGLC Citation

Miller v Brown [2010] WADC 102

Most Recent Citation

ENGWIRDA and THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728 [2020] WASAT 39

Cases citing this decision · 2 of 2 shown

ENGWIRDA and THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728
[2020] WASAT 39 Para 3

…with John Miller granting exclusive possession to the occupier of each lot, I find that this was not a licence situation[:] [2] Miller v Brown & Ors [2010] WADC 102 at [48].…
Scandolera v Dingwall
[2017] NSWCATCD 41 Para 44

…Anforth also points out that not all illegality will render occupation unlawful, citing Miller v Brown & Ors [2010] WADC 102 where the property was unlawfully subdivided and cottages constructed which where let to family members on a life tenancy basis. The Court held that the unlawful subdivision did not obviate…

View all 2 citing cases →

Cases cited in this decision · 20 of 20 shown

Saldanha v Fujitsu Australia Ltd
[2010] WASC 105 Para 5

…ional error , the aggrieved party may have a choice between invoking a right of appeal or seeking a judicial review: Saldanha v Fujitsu Australia Ltd [2010] WASC 105 at [18]. That is recognised by the provisions of s 36(5)(b) and s 36(7) of the Magistrates Court Act . Section 36(5)(b) allows the Supreme Court to o…
Rayney v AW
[2009] WASCA 203 Para 4

…eme Court for a review order pursuant to s 36 of the Magistrates Court Act . The scheme and purpose of s 36 was explained by McLure JA in Rayney v AW [2009] WASCA 203 at [25] ‑ [28].…
Commissioner of State Revenue v TEC Desert Pty Ltd
[2009] WASCA 128 Para 4

…h Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52 per Dixon J at 67 ‑ 70; Commissioner of State Revenue v TEC Desert Pty Ltd [2009] WASCA 128 per McLure JA at [190], [218] ‑ [226] concerning tenant's fixtures.…
Lighting BY Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd
[2008] WASCA 23 (S) Para 1

…he respondents to remain on the land, charging rent, they became tenants at his will: Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd (2008) 35 WAR 520; [2008] WASCA 23 per Pullin JA at [4]; Le Miere JA at [120], [199] and [200].…
Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd
[2008] WASCA 23 Para 1

…emain on the land, charging rent, they became tenants at his will: Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd (2008) 35 WAR 520; [2008] WASCA 23 per Pullin JA at [4]; Le Miere JA at [120], [199] and [200].…
Re Burton;
[2006] WASC 277 Para 7

…l of natural justice to any party to the proceedings: see Re Burton; Ex parte Lowe & Anor [2003] WASCA 306 at [61]; Re Burton; Ex parte Rowell & Anor [2006] WASC 277 at [4]; De Alwis v Department of Housing and Works t/as HomesWest [2006] WASC 14 at [19]. So far as jurisdictional error is concerned, s 26(2) provid…
De Alwis v Department of Housing and Works
[2006] WASC 14 Para 7

…& Anor [2003] WASCA 306 at [61]; Re Burton; Ex parte Rowell & Anor [2006] WASC 277 at [4]; De Alwis v Department of Housing and Works t/as HomesWest [2006] WASC 14 at [19]. So far as jurisdictional error is concerned, s 26(2) provides for erroneous assumptions of jurisdiction to be checked by judicial review, bu…
Re Burton; Ex parte Lowe
[2003] WASCA 306 Para 7

…of jurisdictional error) or that there has occurred a denial of natural justice to any party to the proceedings: see Re Burton; Ex parte Lowe & Anor [2003] WASCA 306 at [61]; Re Burton; Ex parte Rowell & Anor [2006] WASC 277 at [4]; De Alwis v Department of Housing and Works t/as HomesWest [2006] WASC 14 at [19].…
Re Glynn;
[2003] WASCA 122 Para 1

…therefore within the Magistrate Court's jurisdiction: s 10 of the Magistrates Court (Civil Proceedings) Act ; see also Re Glynn; Ex parte Royle & Ors [2003] WASCA 122 at [3] ‑ [6] .…
Cohen-Hallaleh v Cyril Rosenbaum Synagogue
[2003] NSWSC 395 Para 6

…not a lease does not mean it is not a "residential tenancy agreement" within that definition: see Cohen-Hallaleh v Cyril Rosenbaum Synagogue Pty Ltd [2003] NSWSC 395 at [15], considering a similar definition under the Residential Tenancies Act 1987 (NSW). The definition does not attempt to deal with anything beyon…
Austin Park Pty Ltd v Canon Foods Services Pty Ltd
[2001] WADC 227 Para 10

…efers only to a perpetual tenancy commencing 1 January 1983, is unenforceable for uncertainty: see Austin Park Pty Ltd v Canon Foods Services Pty Ltd [2001] WADC 227 at [19]; Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386. Similarly, to the extent that the "certificate" issued by the late John…
Minister for Immigration and Multicultural Affairs v Yusuf
[2001] HCA 30 Para 6

…here is said to be "an actual failure to exercise jurisdiction" to which mandamus applies: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41].…
Public Service Association (SA) v Federated Clerks' Union
[1991] HCA 33 Para 7

…ed by judicial review, but not erroneous refusals to exercise jurisdiction: see Public Service Association (SA) v Federated Clerks' Union (SA Branch) (1991) 173 CLR 132 at 141 ‑ 142, 160 ‑ 161. The Magistrate's decision here was of the second type, that is a refusal to exercise jurisdiction which, as Mr Miller submit…
Johnson v Perez
[1988] HCA 64 Para 5

…td v Cannington Nominees Pty Ltd ( supra ) at [90], [204], [205]; Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110. The existence of a contract, and the identification and interpretation of its terms, are all approached on an objective basis. When deciding whe…
Radaich v Smith
[1959] HCA 45 Para 8

…illage" with John Miller granting exclusive possession to the occupier of each lot, I find that this was not a licence situation: see Radaich v Smith (1959) 101 CLR 209.…
North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW)
[1940] HCA 7 Para 4

…d until actually severed or removed from the land, the fixture remains part of that land: North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52 per Dixon J at 67 ‑ 70; Commissioner of State Revenue v TEC Desert Pty Ltd [2009] WASCA 128 per McLure JA at [190], [218] ‑ [226] concerning tenant's…
Wacando v The Commonwealth
[1981] HCA 60 Para 2

…o account when construing a part of a written law, although it should not be used to limit or cut down the meaning of a specific part of the statute: Wacando v Commonwealth (1981) 148 CLR 1 per Gibbs CJ at 15 ‑ 16. I do not understand the Magistrate in her reasons, however, to have used the preamble to limit her interpretation…
Grey
[2001] WASCA 240 Para 10

…Act which deal specifically with appeals. I must be satisfied that I have jurisdiction to hear this appeal: Murcia & Associates (a firm) v Grey & Ors [2001] WASCA 240 at [14]. I invited written submissions on this point to be filed.…
[2007] WADC 83
[2007] WADC 83 Para 10

…it has also been held by Keen DCJ that a dismissal of a matter for want of jurisdiction is not a decision under Pt V of the Copyright Act: Lim v Chen [2007] WADC 83. In my view, an order made after consideration of whether or not Mr Miller's applications fell within the Residential Tenancies Act , and therefore w…
[1992] 2 AC 386
[1992] 2 AC 386 Para 10

…for uncertainty: see Austin Park Pty Ltd v Canon Foods Services Pty Ltd [2001] WADC 227 at [19]; Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386. Similarly, to the extent that the "certificate" issued by the late John Miller might be considered a grant of occupancy or evidence of an agreement…

Legislation cited in this decision · 7

Magistrates Court Act 2004 (WA)
36 2 mentions (from Para 3)
Residential Tenancies Act 1987 (WA)
26 2 mentions (from Para 1)
Copyright Act 1968 (Cth)
1 mention (from Para 10)
Local Government Act 1995 (WA)
1 mention
Magistrates Court (Civil Proceedings) Act 2004 (WA)
10 1 mention
Property Law Act 1969 (WA)
1 mention (from Para 11)
Town Planning and Development Act 1928 (WA)
1 mention (from Para 9)