Re Applications Under Section 36 and Section 39 of the Magistrates Court Act 2004 (WA) and the Magistrates Court (Civil Proceedings) Act 2004 (WA); Ex Parte Snook
[2008] WASC 223
•14 OCTOBER 2008
RE APPLICATIONS UNDER SECTION 36 AND SECTION 39 OF THE MAGISTRATES COURT ACT 2004 (WA) AND THE MAGISTRATES COURT (CIVIL PROCEEDINGS) ACT 2004 (WA); EX PARTE SNOOK [2008] WASC 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 223 | |
| Case No: | CIV:2340/2008 | ON THE PAPERS | |
| Coram: | TEMPLEMAN J | 14/10/08 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | PIPPA SNOOK THE STATE OF WESTERN AUSTRALIA DALE GAVIN MILLER NHI DO |
Catchwords: | Courts Application for temporary stay of proceedings in Magistrates Court Application for review order Turns on own facts |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA), s 39 |
Case References: | Re an application under the Magistrates Court Act 2004; Ex parte Snook [No 2] [2007] WASC 255 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- CIV 2341 of 2008
PIPPA SNOOK
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
First Respondent
DALE GAVIN MILLER
NHI DO
Second Respondents
(Page 2)
Catchwords:
Courts - Application for temporary stay of proceedings in Magistrates Court - Application for review order - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 39
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Applicant : Not applicable
First Respondent : Not applicable
Second Respondents : Not applicable
Solicitors:
Applicant : Not applicable
First Respondent : Not applicable
Second Respondents : Not applicable
Case(s) referred to in judgment(s):
Re an application under the Magistrates Court Act 2004; Ex parte Snook [No 2] [2007] WASC 255
(Page 3)
- TEMPLEMAN J:
CIV 2341 of 2008
1 The applicant, Pippa Snook, applies on an urgent ex parte basis to have two matters which are part heard in the Magistrates Court transferred to the Supreme Court pursuant to s 39 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
2 The application was listed for hearing today. However, the applicant's personal circumstances are such that she is not able to attend court to make her application in person. She has therefore requested that I deal with the matter on the papers, but do so on the basis that what is sought is, in essence, a temporary stay of the Magistrates Court proceedings for 24 or 48 hours. This would enable the applicant to adjourn the resumed hearings which are listed for three days commencing tomorrow.
3 I proceed on that basis.
4 The applicant is the tenant of a property at Hillarys. The second respondents are her landlords. The tenancy agreement is not in evidence before me. However, it contains provisions for renewal.
5 In proceedings in the Magistrates Court in 2006, an application was made by the applicant on the basis that she had exercised her right to renew the tenancy. A cross-application was made by the second respondents seeking possession of the premises, apparently on the basis of breaches of the tenancy agreement.
6 The magistrate who heard the matter in the Joondalup Magistrates Court found against the applicant: he ordered that she vacate the property.
7 The applicant applied to this court for review orders and was successful: Re an application under the Magistrates Court Act 2004; Ex parte Snook [No 2] [2007] WASC 255.
8 Simmonds J, who heard the matter, quashed the decision of the learned magistrate on the second respondents' application: reasons [102].
9 The decision of Simmonds J has apparently given rise to some uncertainty. That is because, as I have noted above, the magistrate's decision on the applicant's application was not before Simmonds J. However, at [52] of his reasons, Simmonds J said:
(Page 4)
- It seems to me that the landlords' application had squarely put in issue whether or not there was a tenancy under which the tenant could resist orders being made under [Residential Tenancies] Act s 72.
10 In these circumstances, I think it is clear that by quashing the magistrate's decision on the second respondents' application, Simmonds J must be taken also to have decided that the second respondents could not rely on that part of the magistrate's decision in which he found that the applicant's tenancy had not been renewed.
11 Simmonds J did not consider it would be appropriate to order a re-hearing of the second respondents' application. His Honour held that they should be at liberty to make such further application as they saw fit: [105].
12 The second respondents did make a further application: as did the applicant. The matters are therefore properly before the Magistrates Court, which has jurisdiction to hear them. That was the ruling made by Magistrate Boothman on 24 July 2008 (ts 10 - 11). In my view, the learned magistrate was clearly correct.
13 The application to transfer the applications to this court is made under s 39 of the Magistrates Court (Civil Proceedings) Act 2004. By s 39(4):
The superior court may make such an order if it is satisfied that all or a part of the case is within its jurisdiction and -
(a) involves a claim by the claimant or another party, or an issue, that is outside the Magistrates Court's jurisdiction; or
(b) should be dealt with by the superior court because of its complexity or because of a question of law involved.
14 Given that the Magistrates Court does have jurisdiction, only s 39(4)(b) is relevant. However, in my view, once the issue of jurisdiction has been resolved (as it now has been), the remaining issues of fact and law are not complex.
15 The factual issues are whether the applicant exercised her right to renew her tenancy: and whether there have been breaches of the tenancy agreement. Issues of law will no doubt involve the true construction of the tenancy agreement (which is not among the papers submitted to me).
16 I have read the transcript of the hearings on 23 and 24 July 2008, during which the applicant has been attempting to present her case. The
(Page 5)
- applicant is not legally represented and, with the greatest of respect, appears to have difficulty in separating factual issues from submissions and focusing on the matters it is necessary for her to prove.
17 As a result, the matter seems to have assumed a degree of complexity which it does not warrant.
18 I am not persuaded, therefore, that it is appropriate to have the matters transferred to this court.
CIV 2340 of 2008
19 In this application, the applicant seeks a review order against Magistrate Boothman. The grounds on which the order is sought are as follows:
a) The Magistrate has shown a great deal of Apparent Bias to the self-represented Applicant.
b) The Magistrate has shown excessive ill will to the Applicant.
c) The Magistrate has made statements indicating a pre-determined outcome of the case ie he has pre-judged the matter.
d) The Magistrate has made it impossible for the Applicant to properly present her case.
e) In the above matters the Magistrate has denied the Applicant Natural Justice.
f) In the above matters the Magistrate has failed to afford the Applicant a fair and unprejudiced hearing.
g) In additional matters the Magistrate may be in excess of his Jurisdiction.
h) Has made directions/orders refusing to accept evidence relevant to the case.
20 The grounds are set out in more detail in a letter dated 19 September 2008 written by the applicant to the Chief Magistrate and in an analysis of the transcript. The analysis contains 125 paragraphs in which detailed complaints are set out. However, par 19 and par 20 perhaps best encapsulate the applicant's contentions. They are in the following terms:
19. Magistrate Boothman is at various times during the hearing sarcastic, overbearing, discourteous, argumentative, disruptive, presumptive, scornful, supercilious, arrogant, bullying, overbearing, misusing his powers, attempting to intimidate,
- hectoring, and tyrannical, sneering and taunting, rude, uncivil, unmannerly and insulting.
- 20. Whilst he starts out in a relatively civil manner, his manner deteriorates significantly when his first attempt at a mediated settlement fails. Then after a second attempt where he attempts threats, coercion bullying of myself (end of transcript day 1) and still fails to achieve a settlement, his behaviour becomes all those things in the paragraph, and it is subsequent to this that most, but not all of my complaints arise.
21 The learned magistrate attempted at the commencement of the proceedings and towards the end of the first day, to broker a settlement between the parties. His Honour proceeded on the basis that the outcome of any litigation is uncertain, that the applicant wishes to remain as a tenant in the property and the second respondents wish to obtain rent for the property by letting it. It can hardly be doubted that it would be in the parties' best interests to settle the matter if they could. However, the parties were unable to reach any agreement.
22 As I have noted above, I have read the transcript of the 23 and 24 July hearings. Obviously, I cannot tell the tone of voice used by any of the speakers from the printed word. However, I do not think the applicant's complaints are justified.
23 It must be understood that the magistrate is coming to this matter afresh. He is required to deal with the applications before him and is not concerned with what has gone before. In order to do justice between the parties, it is necessary for the magistrate to receive the applicant's evidence about factual matters. That is to say, the applicant should give her evidence of relevant events, preferably in chronological order, so that the magistrate can understand her evidence as it unfolds.
24 Unfortunately, the applicant appears to have been confusing her evidence about factual matters with submissions and comment so that it has been difficult for the magistrate to understand precisely what the applicant's case is about. What the applicant perceives to be bias or ill will appears to me to reflect the magistrate's attempts to ensure that the applicant gives relevant evidence.
25 Regrettably, the applicant has herself made a number of intemperate remarks. They are set out in par 7 of her analysis of the transcript. For example:
(Page 7)
- Look, I haven't a hope in hell of you making any judgment in my favour, but I'm going to get this on record.
I mean, it seems that it's a total waste of time [giving evidence]. It really does. I do feel browbeaten.
… quite frankly I find it really difficult when you won't listen.
… somewhat browbeaten here and I feel that I'm being bullied into shortening my evidence because there's really no point in putting it before you, because there is no hope of a favourable outcome.
26 As far as I can tell from the transcript, there is nothing to justify the applicant's contention that the magistrate has pre-judged the matter. In my view, he has shown considerable restraint and patience in the face of observations such as those set out above.
27 I therefore see no justification for making a review order on the basis of the magistrate's conduct of the case.
28 For these reasons, I do not think it appropriate to stay the proceedings in the Magistrates Court, which are due to resume tomorrow.
29 The applications will therefore be dismissed.
30 I note that the applicant has named Magistrate Boothman as the respondent to this application. However, the appropriate party is the State of Western Australia which should be named as the respondent.
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