Re Brian Charles Gluestein; Ex Parte Anthony - [2014] WASC 381

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE BRIAN CHARLES GLUESTEIN; EX PARTE ANTHONY [2014] WASC 381

CORAM: BEECH J

HEARD: 1 OCTOBER 2014

DELIVERED : 24 OCTOBER 2014

FILE NO/S: CIV 2070 of 2014

MATTER :IN THE MATTER OF an application under the Magistrates Court Act 2003 section 36 for a review order against Brian Charles Gluestein, Magistrate of the Magistrates Court Western Australia at Joondalup

EX PARTE
PETA RENAE HELEN ANTHONY
Applicant
AND
THE HOUSING AUTHORITY
Respondent

Catchwords:

Administrative law - Jurisdictional error - Remedy - Whether if rights lost as a result of order made without jurisdiction injunction may be granted requiring the creation of new rights in substitution for the rights lost

Courts and judges - Magistrates - Review order under s 36 Magistrates Court Act - Scope of appropriate injunction - Whether relief a 'necessary consequential order'

Words and phrases - 'Necessary consequential order'

Legislation:

Magistrates Court Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 75A

Result:

Application for interlocutory injunction dismissed

Category: A

Representation:

Counsel:

Applicant: Mr R L Hooker
Respondent: Mr A J Sefton

Solicitors:

Applicant: Tenancy WA
Respondent: State Solicitor for Western Australia

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

American Cyanamid Co v Ethicon Ltd [1975] AC 396
Appleton Papers Inc v Tomasetti Paper Pty Ltd (1983) 3 NSWLR 208
Attorney General v Kowalski [2014] SASC 1
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247
Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Della‑Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561
Heugh v Central Petroleum Ltd [2012] WASC 155
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1
John Fairfax & Sons Ltd v Australian Telecommunications Commission (1977) 2 NSWLR 400
JTA Le Roux Pty Ltd v Lawson [No 2] [2013] WASC 373
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Manonai v Burns [2011] WASCA 165
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration v VFAD [2002] FCAFC 390; (2002) 125 FCR 269
Purton v Jackson [2012] TASFC 2; (2012) 21 Tas R 310
R v Kensington and Chelsea Royal London Borough Council; Ex parte Hammell [1989] 1 QB 518
Rayney v AW [2009] WASCA 203
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591
Tulloh v Chief Executive Officer of the Department of Corrective Services [2014] WASC 368
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
BEECH J:

Introduction

The applicant seeks a review order under s 36 of the Magistrates Court Act 2004 (WA) and an interim or interlocutory injunction relating to a decision of the magistrate terminating the applicant's Residential Tenancy Agreement with the State Housing Authority. In particular, the applicant seeks an interlocutory injunction effectively requiring the State Housing Authority to provide her with alternative housing.
The loss of someone's accommodation is always a matter capable of giving rise to considerable sympathy. That is all the more so in the circumstances of the applicant, who was homeless before she entered the tenancy agreement the subject of this application, and who has been homeless since 1 August 2014 when she ceased to be at those premises. But the role of the court is limited by the nature of the primary proceedings as an application for judicial review. In my view, the limitations of the court's function compel the rejection of the applicant's claim for an interlocutory injunction.
For the reasons that follow, the applicant's claim for an interlocutory injunction must be dismissed.

Background facts

The applicant entered into a Social Housing Tenancy Agreement (Tenancy Agreement) for premises in Clarkson with the State Housing Authority (Housing Authority).
The Housing Authority applied for an order terminating the Tenancy Agreement pursuant to s 75A(1) of the Residential Tenancies Act 1987 (WA).
The application was heard on 16 May 2014. The Housing Authority called three witnesses: Ms Corinne Copes, Mr Neil Sumner and Ms Surina Barrand. The applicant gave evidence, and led evidence from her mother. The magistrate reserved his decision until 29 May 2014.
On 29 May 2014 the magistrate gave his reasons. In the course of his reasons the magistrate:
(a)quoted the provisions of pars (b) and (c) of s 75A(1);
(b)outlined the evidence of Ms Copes, an employee of the Department of Housing, through whom three default notices were tendered, referring to separate occasions in which it was said that there had been unreasonable disturbances at the property;
(c)outlined the evidence of Mr Sumner, who lives two doors down from the applicant, about what he had observed including, on 'numerous occasions', fist fights, loud parties, the police attending, and how on occasions he had been called offensive names. Mr Sumner did not feel safe or secure, and suffered from insomnia as a result of what occurred at the applicant's premises;
(d)outlined the evidence of Ms Barrand, who lives next door to the applicant, about incidents that had occurred at the applicant's premises, including incidents involving fighting, heavy drinking and, on one occasion, a man coming from the applicant's premises and loudly and aggressively banging on her door, causing fear to her and her daughter;
(e)outlined the evidence of the applicant, who the magistrate described as 'play[ing] down the level of behaviour of some of the people who attend or are at' the applicant's premises;
(f)concluded that the evidence was 'overwhelmingly in favour of the Housing Authority's application' and sustained 'its allegations under s 75A(1)(b) and (c)';
(g)described the witnesses called by the Housing Authority as being forthright and unshaken under cross‑examination, finding that Ms Barrand came across as a very caring person who wanted to be a good neighbour, but was living under the constant threat of danger to herself and her daughter from the people that frequented the applicant's property; and
(h)concluded in the following terms:
I am easily satisfied, and on the balance of probabilities, that Ms Anthony, as a tenant at 145 Aldersea Circle, has breached sub‑paragraphs (b) and (c) of s 75A(1) of the Act. The requisite notices having issued, the last in February 2014, I am satisfied that it is appropriate for an order to be made terminating the tenancy (ts 29 May 2014 page 4).
The magistrate ordered that the tenancy be terminated with effect from noon on 20 June 2014 and that the applicant be required to give up vacant possession at that time together with all the keys to the property.
On 1 July 2014 the Housing Authority applied for and obtained a Property (Seizure and Delivery) Order (the Eviction Order) under s 95 of the Civil Judgments Enforcement Act 2004 (WA) (CJE Act).
On 4 July 2014 the applicant filed an application for a suspension order pursuant to s 15 of the CJE Act. The grounds of that application were said to be so as to enable the applicant to seek further advice on judicial review of the decision of 29 May 2014 on grounds that the magistrate acted beyond jurisdiction or contrary to natural justice.
Later on 4 July 2014 the Housing Authority undertook to the applicant's solicitor not to enforce the termination order until after the suspension application was determined.
The suspension application was refused by Magistrate Bromfield on 24 July 2014.
On 30 July 2014 the bailiff attended the applicant's property and left a notice advising that they would return to evict the applicant.
On 31 July 2014 the applicant filed the application for a review order pursuant to s 36 of the Magistrates Court Act the subject of these proceedings.
Very late on 30 July 2014 the applicant's solicitors foreshadowed the application for a review order, and asked the Housing Authority's solicitor whether the Housing Authority would undertake not to enforce the orders of the magistrate pending determination of the review application. On 31 July 2014 the Housing Authority's solicitors indicated that it was not willing to provide any undertaking, and stated that it proposed to proceed with the eviction the next day, unless prevented by an order of the court.[1]
[1] Affidavit of Christopher Curcuruto sworn 28 August 2014 annexures CC 3 ‑ CC 5.
On 1 August 2014 the bailiff attended the premises and retook possession of them on behalf of the Housing Authority. By that date, the applicant had vacated the premises.
After that, the Housing Authority caused repairs to be done to the premises, at a cost of $17,103.49.[2]
[2] Affidavit of Jeremy Campbell Pitts sworn 15 September 2014 [16].
There was evidence that the applicant has been assessed by the Housing Authority as being liable to repay $11,268 of the amount spent on repairs, that being the amount assessed as not being due to reasonable wear and tear.[3]
[3] Affidavit of Jeremy Campbell Pitts sworn 15 September 2014 [17].
On 1 September 2014 the applicant's originating application came before Jenkins J. Counsel for the applicant foreshadowed that, in light of the applicant having been evicted, the application would be amended to seek interlocutory mandatory relief. Programming orders were made for the filing of that application with supporting papers, and for its hearing. The court raised the question of whether the applicant's foreshadowed application for interlocutory relief might require fresh proceedings to be commenced.[4] Counsel for the Housing Authority foreshadowed that the Housing Authority proposed to relet the premises in the very short term.[5]
[4] ts 1 September 2014, 14.
[5] ts 1 September 2014, 12.
On 5 September 2014 the applicant applied for the injunctive relief the subject of this application.
On 9 September 2014 the Housing Authority made an offer to a new potential tenant who, after inspecting the property on 11 September 2014, signed a new Tenancy Agreement on 12 September 2014.[6]

The Residential Tenancies Act 1987 (WA)

[6] Affidavit of Jeremy Campbell Pitts sworn 15 September 2014 [19] - [21].

Section 60 controls the termination of residential tenancy agreements. Section 60 is in the following terms:
How residential tenancy agreements are terminated
Despite any Act or law to the contrary, a residential tenancy agreement shall not terminate or be terminated except in one of the following circumstances -
(a)where the lessor or tenant gives notice of termination under this Act and -
(i)the tenant delivers up vacant possession of the premises on or after the expiration of the period of notice required under this Act; or
(ii)a competent court, upon application by the lessor, terminates the agreement under section 71;
(b)in the case of a tenancy for a fixed term, where the lessor or tenant gives a notice of termination under section 70A and -
(i)the tenant delivers up possession of the premises on or after the day on which the term of the agreement expires in accordance with that section; or
(ii)a competent court, upon application by the lessor, terminates the agreement under section 72;
(c)where a competent court terminates the agreement under section 73, 74, 75A or 75;
(d)where a person having superior title to that of the lessor becomes entitled to possession of the premises;
(e)where a mortgagee in respect of the premises takes possession of the premises in pursuance of the mortgage;
(f)where the tenant abandons the premises;
(g)where the tenant delivers up vacant possession of the premises pursuant to an agreement in writing between the lessor and the tenant to terminate the residential tenancy agreement;
(h)where the agreement terminates by merger;
(i)where every tenant dies.
One of the circumstances under which, by s 60, a residential tenancy agreement can be terminated is where a competent court terminates the agreement under s 73, s 74, s 75A or s 75. This case concerns s 75A, which provides as follows:
Termination of social housing tenancy agreement due to objectionable behaviour
(1)A competent court may, upon application by the lessor under a social housing tenancy agreement, terminate the agreement if it is satisfied that the tenant has -
(a)used the social housing premises, or caused or permitted the social housing premises to be used, for an illegal purpose; or
(b)caused or permitted a nuisance by the use of the social housing premises; or
(c)interfered, or caused or permitted any interference, with the reasonable peace, comfort or privacy of any person who resides in the immediate vicinity of the premises,
and that the behaviour justifies terminating the agreement.
(2)The court may, on an application made under this section, make such other orders or give such other directions as the court in the circumstances of the case thinks fit, including, if there has been a breach of the agreement, making any order that the court may make under section 15.
(3)In deciding if the behaviour justifies terminating the agreement, or making any order or giving any direction referred to in subsection (2), the court may have regard to whether the behaviour was recurrent and, if it was recurrent, the frequency of the recurrences.
(4)Subsection (3) does not limit the issues to which the court may have regard.
(5)Where a court terminates a social housing tenancy agreement under this section, it must also make an order for possession of the social housing premises and must specify a day as from which the orders are to operate that it considers, in the circumstances of the case, appropriate.
(6)For the purposes of section 16(1), an order made by the court under subsection (2) is to be taken to have been made under section 15(2).
It is not in doubt that the applicant's Tenancy Agreement was a Social Housing Tenancy Agreement relating to social housing premises, as those terms are defined in s 71A of the Act.
Section 26 of the Residential Tenancies Act provides for the finality of orders made by a court under the Residential Tenancies Act as follows:
Finality of proceedings
(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.
The Housing Authority accepts that, consistently with Kirk v Industrial Court of New South Wales,[7] s 26(2) is to be construed as not excluding the Supreme Court's powers to review a decision of a magistrate for jurisdictional error.[8]

Section 36 of the Magistrates Court Act

[7] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [99] ‑ [100].

[8] ts 48.

Section 36 of the Magistrates Court Act provides as follows:
Supreme Court's powers to control Court
(1)If a person is or would be aggrieved by one or more of the following -
(a)the failure of a Court officer to do any act or make any order or direction -
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
(2)The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.
(3)On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
(5)On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -
(a)if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;
(b)if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
(6)When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4).
(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 -
(a)remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or
(b)adjourn the appeal to enable an application to be made to the Supreme Court -
(i)under subsection (1); or
(ii)under the District Court of Western Australia Act 1969 section 76.
(8)A Court officer, on being served with an order made under subsection (4), must obey the order.

The proper construction and operation of s 36 of the Magistrates Court Act was explained by McLure JA (Buss & Newnes JJA agreeing) in Rayney v AW[9] as follows:
(a)the power in s 36 of the Magistrates Court Act is a judicial review power;[10]
(b)the words 'or if it is just to do so' in s 36(4) do not make the power to grant final relief at large;[11]
(c)the power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established;[12]
(d)a review order can only be made if the threshold for an error of a type identified in s 36(1)(a), (b) or (c) is satisfied;[13]
(e)the power in s 36(4)(c) to make 'any necessary consequential orders' is a reference to an order consequential on a substantive order made under par (a) or (b) of s 36(4). A consequential order is one which follows logically or of necessity from a prior substantive order.[14]
[9] Rayney v AW [2009] WASCA 203.
[10] Rayney v AW [27].
[11] Rayney v AW [32].
[12] Rayney v AW [28], [32], [34].
[13] Rayney v AW [31].
[14] Rayney v AW [33].

The applicant's application

By originating application filed 31 July 2014 the applicant applies for a review order of the magistrate's order of 29 May 2014. The grounds of that application are in terms that:
1.The learned magistrate erred in law and committed jurisdictional error in misconstruing section 75A of the Act, thereby acting in a manner that might have justified an order of certiorari in [respects set out in par 1(a) ‑ (g) of the grounds].
By application filed 5 September 2014 the applicant seeks what is described as an interim injunction but is, in fact, an interlocutory injunction, in terms that:
The Housing Authority do all things necessary to place the applicant in a Social Housing Tenancy within the meaning of the definition of that term in s 71 of the Residential Tenancies Act 1987 (WA) (the Act) of a kind as comparable as possible to the tenancy in which the applicant and her family resided prior to the Housing Authority having executed the order of Magistrate Gluestein of 29 May 2014 in respect of which a review order is sought under s 36 of the Magistrates Court Act 2004 (WA).

Amendments at the hearing on 1 October 2014

In the course of the hearing of the application on 1 October 2014, the applicant amended the terms of the interlocutory injunction sought as follows:
The Housing Authority do all that is necessary to place, alternatively offer, the applicant in a social housing tenancy:
(a)within the meaning of the definition of that term in s 71A of the Residential Tenancies Act 1987 (WA) (the Act);
(b)of a kind as comparable as possible to the tenancy in which the applicant and her family resided prior to the Housing Authority having executed the order of Magistrate Gluestein of 29 May 2014 in respect of which a review order is sought;
(c)for a period terminating upon the making of any lawful order to terminate the tenancy referred to at (b) above, under the Act, and otherwise subject to the operation of the Act.
At the hearing, the applicant also applied to amend the originating application to delete the original [2], and replace it with an order in the same terms as the interlocutory injunction I have just set out.
The Housing Authority did not oppose those amendments, and I grant leave.

Interlocutory injunctions: Principles

The parties are both content to adopt the outline of principles in Twinside Pty Ltd v Venetian Nominees Pty Ltd:[15]
[15] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [12].
In Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148, 153, Mason ACJ summarised the principles governing the grant or refusal of an interlocutory injunction as follows:
'In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made 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 will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.'
That summary was adopted by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, 217. These principles have been routinely applied in this and other courts in Australia.
These principles were further explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, [65] ‑ [71] (Gleeson CJ and Crennan J agreeing). Their Honours stated that the relevant principles are those stated in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, where the two main inquiries were said to be whether the plaintiff had made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The phrase 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks: [65], [71].
The apparent statement by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396, 407 that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, there will be a serious question to be tried, is not to be followed. The governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought. These principles make it clear that the various considerations identified by Mason ACJ in Castlemaine Tooheys are to be considered together.
As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49, 54 ‑ 55; Todd v Novotny [2001] WASC 171. The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670; Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67 [14].
… The principles relating to interlocutory mandatory injunctions were explained in Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471, 483 ‑ 484, and Films Rover International (679 ‑ 682). In some cases, it is said that an interlocutory mandatory injunction should be granted only if the court has a high degree of assurance that the plaintiff will succeed at trial. However, ultimately the question is as to the balance of the risk of injustice. In considering that balance the court must take into account the nature and consequences of the particular injunction sought.
It is, as the Housing Authority submits, important to keep in mind the purpose of an interlocutory injunction. The power to grant an interlocutory injunction is not to be exercised by unconstrained notions of what appears to be just. The power to grant an interlocutory injunction must be exercised by reference to the rights claimed by the applicant in the proceedings.[16]
[16] Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 [31] (Gaudron, McHugh, Gummow & Callinan JJ).
Relevantly, the purpose of an interlocutory injunction is to preserve the position until the rights of the parties can be determined at the hearing of the suit. A plaintiff seeking an interlocutory injunction must be able to show a sufficiently arguable claim to a right to the final relief in aid of which the interlocutory relief is sought.[17] If the application for an injunction cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears.[18]
[17] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [9] - [11] (Gleeson CJ).
[18] ABC v Lenah Game Meats Pty Ltd [15] (Gleeson CJ).
To put the same point another way, an interlocutory injunction aims to prevent the injustice to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled.[19] As Lord Diplock explained in American Cyanamid Co v Ethicon Ltd[20] 'the object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial'. As was said in Minister for Immigration v VFAD,[21] the stream (interlocutory relief) cannot rise higher than its source (rights claimed at the final hearing).
[19] Twinside Pty Ltd v Venetian Nominees Pty Ltd [11]; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 535; Appleton Papers Inc v Tomasetti Paper Pty Ltd (1983) 3 NSWLR 208, 216.
[20] American Cyanamid Co v Ethicon Ltd [1975] AC 396, 406.
[21] Minister for Immigration v VFAD [2002] FCAFC 390; (2002) 125 FCR 269 [124].
These principles were applied by Le Miere J in dismissing an application for an interlocutory injunction in Heugh v Central Petroleum Ltd.[22]
[22] Heugh v Central Petroleum Ltd [2012] WASC 155 [17] ‑ [22].
If the result of granting an interlocutory injunction is, in practical terms, to determine the substance of the proceedings, the court should evaluate the apparent strength of the plaintiff's claim for final relief.[23] This is a particular manifestation of the broad principle that the practical consequences of the orders sought bear on the requisite strength of the probability of ultimate success.[24]
[23] Kolback Securities Ltd v Epoch Mining NL (536), cited with approval in many cases; see the cases collected in footnote 17 in JTA Le Roux Pty Ltd v Lawson [No 2] [2013] WASC 373 [23].
[24] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [65], [71] (Gummow & Hayne JJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [9] ‑ [10].

The disposition of the application

As I have said, the requisite strength of the probability of ultimate success depends on the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought. In this case, two considerations lead me to the conclusion that, even taking into account her evidence about balance of convenience, the applicant needs to establish a reasonably strong probability of ultimate success in order to sustain the interlocutory relief now sought.
First, the interlocutory relief sought is, in every sense, mandatory in nature. It compels positive action on the part of the Housing Authority. That action would not restore any state of affairs existing at any relevant earlier time.[25] Rather, it would create new rights in relation to new premises. These features of the interlocutory injunction sought bear on the risk of injustice to the party against whom the injunction is sought.[26]
[25] cfBusinessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, 503.
[26] Twinside Pty Ltd v Venetian Nominees Pty Ltd [12]; JTA Le Roux Pty Ltd v Lawson [No 2] [17].
Secondly, the interlocutory injunction sought is in terms identical to the final relief sought. The injunction now sought, although characterised as interim or interlocutory, is in terms that do not limit its duration to the period pending final determination of the substantive application under s 36 of the Magistrates Court Act. Rather, the injunction endures indefinitely unless and until a lawful order is made to terminate the original tenancy. This would appear to assume success on the part of the applicant at the hearing for final relief.
I turn to the merits of the applicant's claim for final relief. I will begin with the question of whether there is jurisdictional error. Then I will deal with the question of whether, if jurisdictional error is established, there is any reasonable prospect of final relief requiring the Housing Authority to enter into a new tenancy agreement relating to different premises with the applicant.
In substance the applicant's written and oral submissions advance two broad contentions as to the jurisdictional errors said to have been made by the magistrate.
The applicant's first complaint is that the magistrate failed to make findings to sufficiently identify the behaviour said to have engaged s 75A(1)(b) and (c). It is true that the magistrate did not expressly detail the behaviour by which the conditions in s 75A(1)(b) were satisfied. However, there are a number of obstacles to the success of this contention.
First, the adequacy of the reasons of the magistrate is to be assessed in light of s 31 of the Magistrates Court Act.
Section 31 of the Magistrates Court Act provides:
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
Secondly, what is required by way of reasons must also take into account that no appeal lies from the decision.[27] The need to inform the losing party whether they have any grounds to appeal is a central foundation of what is required by way of reasons.[28] The absence of any right of appeal makes this consideration inapplicable. Of course, this does not mean there is no need for adequate reasons, but it affects what is required in order to make those reasons adequate.
[27] Residential Tenancies Act s 26.
[28] See the authorities referred to in Manonai v Burns [2011] WASCA 165 [53] (Hall J, Pullin & Murphy JJA agreeing).
Thirdly, the adequacy of the reasons must also take account of the statutory imperative of expedition in decision‑making. Section 14 of the Residential Tenancies Act requires a decision under that Act to be made within 14 days of the institution of the proceedings or, if that is not practicable, as expeditiously as possible.
Fourthly, a court can have regard to what can legitimately be inferred from the reasons, read as a whole.[29] The Housing Authority's case was opened on the basis that the incident on 22 November 2013 was the behaviour on which it relied, and that other incidents would be the subject of evidence to establish that, in the context of that history, the behaviour justified the termination of the Tenancy Agreement.[30] Arguably at least, it should be inferred that that is what the magistrate found.
[29] Manonai v Burns [60] (Hall J).
[30] ts 16 May 2014, 4 ‑ 5.
The applicant's second complaint is that the magistrate failed to address the essential question of whether the behaviour of the applicant, as found by the magistrate, justified the termination of the Tenancy Agreement. I accept that if the magistrate failed to address that question he would thereby have fallen into jurisdictional error. However, in my view it is far from clear that the magistrate made the error alleged. The magistrate concluded that the previous notices having issued, he was 'satisfied that it is appropriate for an order to be made terminating the tenancy'.[31] To my mind there is a strong argument that that finding reflected the magistrate's satisfaction, in the language of s 75A(1), that the behaviour justified the termination of the Tenancy Agreement. The reference to the previous notices suggests that the magistrate took into account the extent of the recurrence of the behaviour of that kind, in accordance with s 75A(3).
[31] ts 29 May 2014, 4.
For these reasons, while I am satisfied that the applicant has demonstrated a reasonably arguable case of jurisdictional error, I would not put it any higher than that. To my mind the applicant has not demonstrated a high probability of success.
In assessing the applicant's probability of ultimate success, attention must be given not only to whether the applicant establishes jurisdictional error on the part of the magistrate, but also to whether the applicant may establish her claim to consequential relief requiring the Housing Authority to offer a tenancy agreement in relation to similar premises.
Establishing jurisdictional error, without final relief of the kind now sought, would not sustain the interlocutory injunction sought. A declaration of invalidity and an order setting aside the magistrate's orders of 29 May 2014 would not, in themselves, create any right on the part of the applicant or duties on the part of the Housing Authority in relation to different premises. Thus attention must be directed to the potential availability of final relief in the form now claimed in the terms of [2] of the originating application.
For the reasons that follow, I am not satisfied that the prospects of final relief in the terms now sought are sufficient to sustain the grant of an interlocutory injunction in those same terms. Far from having reasonably strong prospects of success, in my opinion the applicant does not have any reasonable prospects of success in this claim for final relief.
The applicant submits that:
(1)if, at the final hearing, the applicant establishes jurisdictional error by the magistrate in his orders of 29 May 2014, that will mean that the applicant has lost her rights relating to the original tenancy in consequence of an order infected by jurisdictional error;
(2)an order infected by jurisdictional error is no order at all in the eyes of the law;
(3)in light of the events that have happened it is not open to restore the rights of the applicant to her original tenancy;
(4)the wrongful loss of her tenancy has resulted, and continues to result, in devastating consequences for the applicant, including that she and her family are homeless;
(5)in those circumstances it would be open to the court, at the final hearing, to avoid or repair the unjust consequences of the jurisdictional error by awarding an injunction that requires the Housing Authority to offer the applicant a tenancy in similar premises, in effect as a substitute for the rights lost by the applicant, as a 'necessary consequential order' under s 36(4)(c) of the Magistrates Court Act; and
(6)if this is not done, the result of success by the applicant would be no more than a pyrrhic victory; she would not obtain any practically useful remedy.
Although I accept propositions (1), (3) and (4), broadly accept proposition (2),[32] and accept that (6) may prove to be correct, I nevertheless consider that proposition (5) does not have reasonable prospects of success at the final hearing of these proceedings.
[32] See [65] below.
An application under s 36 is a statutory form of judicial review. Like common law proceedings for judicial review, proceedings under s 36 are concerned with the legality of decisions, not with the merits of decisions. Where, as here, the applicant for relief contends that the orders of the Magistrates Court were made without jurisdiction, the primary relief that flows from such a conclusion is that the order be set aside.[33] If successful, a review application results in a rehearing of the application the subject of the original decision. The court does not make the decision, or make other orders in place of the orders set aside.[34] A court engaged in judicial review does not have a general power to make orders aimed at remedying any injustice that flowed from things done as a consequence of, or in reliance on, the impugned decision.
[33] See s 36(1) and Rayney v AW [29] (McLure JA, Buss & Newnes JJA agreeing).
[34] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [110] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

In a passage applied in many subsequent cases,[35] in Minister forAboriginal Affairs v Peko‑Wallsend Ltd[36] Mason J explained that the limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. That statement was made in the context of identifying the grounds on which the court may review an administrative decision. In my view, it applies equally in the context of identifying the remedies arising from a finding of jurisdictional error.
[35] See, for example Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [44] (Gleeson CJ, Gummow, Kirby & Hayne JJ).
[36] Minister forAboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
The relief sought in the originating application as amended would involve the creation, by the order of the court, of new substantive legal rights in favour of the applicant in relation to premises not the subject of the applicant's previous Tenancy Agreement. Moreover, it would require the Housing Authority, which did not make the decision the validity of which is impugned, to create those rights. In my opinion, to grant such final relief would be fundamentally inconsistent with the character of an application under s 36 of the Magistrates Court Act as proceedings for judicial review.
An order under s 36(4)(c) must be a necessary consequential order, consequential on an order under s 36(4)(a) and (b). To be consequential, the order must follow logically or of necessity from a prior substantive order.[37]
[37] Rayney v AW [33] (McLure JA, Buss & Newnes JJA agreeing).
A common example of a necessary consequential order is an order remitting the original application for hearing, consequential upon the order setting aside the decision made under a jurisdictional error. The need to remit the original application follows logically from the setting aside of the decision on that application. Another common example is of an injunction restraining a party from taking steps to give effect to a decision made under jurisdictional error, consequential on an order setting aside the decision.
The applicant submits that the powers in s 36(4) should not be construed with any undue technicality.[38] I agree. However, in my view, denial of the final relief claimed by the applicant in this case does not reflect undue technicality. Avoidance of undue technicality does not detract from limits to be derived from the fundamental character of the proceedings as one of judicial review. Such limits are no mere technicality.
[38] Applicant's supplementary submissions [9], referring by analogy to the approach taken in construing s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
An order setting aside the magistrate's decision of 29 May 2014 does not, as a matter of logic or of necessity, have a consequence of requiring the Housing Authority to provide alternative premises under a new tenancy agreement. An order requiring that would attempt to create rights for the applicant in substitution for the rights lost as a result of the orders made without jurisdiction. That does not give it the character of a necessary consequential order on the order setting aside the order of 29 May 2014.
It is one thing to undo what has been done under an invalid or ineffectual order made in excess of jurisdiction. Contrary to the applicant's submissions,[39] the final relief claimed does not seek to undo the invalid order of the magistrate, or to undo steps taken in reliance on that order. The applicant accepts that the re‑entry by the Housing Authority and the tenancy to the new tenant cannot be undone. What the applicant seeks is not undoing; it is of a different character. The applicant seeks an injunction requiring that a new thing be done, as a substitute for what she lost.
[39] ts 29.
The applicant emphasises that the order of 29 May 2014, if made without jurisdiction, is 'no decision at all'.[40] That broad conclusionary assertion does not sustain the final relief claimed in [2] of the originating application. Establishing that the Eviction Order and the retaking of possession by the Housing Authority were invalid would be a necessary, but not sufficient, step in the applicant's claim for the injunctive final relief. However, in the relief claimed in the originating application, the applicant does not challenge the validity of the Eviction Order or the validity of the retaking of possession by the Housing Authority. Counsel for the applicant did not develop any submissions in support of a contention that the Eviction Order and the retaking of possession would be declared invalid in these proceedings. Any such invalidity must be demonstrated, not assumed. There are limits on the extent to which the order of 29 May 2014, if made in excess of jurisdiction, can be said to have had no valid consequences of any kind, including the Eviction Order.[41] The Housing Authority's submissions[42] set out cogent arguments for a conclusion that, under the statutory scheme of the Residential Tenancies Act and the Magistrates Court Act, the termination order and subsequent Eviction Order remain effective unless and until set aside. The applicant has not demonstrated a strong prospect of success in this respect.
[40] Applicant's supplementary submissions [6], citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [51] (Gaudron & Gummow JJ), [63] (McHugh J), [152] (Hayne J). For a recent application of this principle, see Tulloh v Chief Executive Officer of the Department of Corrective Services [2014] WASC 368 [24] ‑ [29].
[41] See, in this regard, for example, Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1 [42] (Gray & Downes JJ); Purton v Jackson [2012] TASFC 2; (2012) 21 Tas R 310 [11] ‑ [20] (Blow J, Crawford CJ & Evans J agreeing); Attorney General v Kowalski [2014] SASC 1 [202].
[42] Respondent's supplementary submissions in response [16] ‑ [17].
In any event, even if the invalidity of the Eviction Order and the retaking of possession were established, in my view, that could not sustain the grant, in these proceedings, of an injunction requiring the creation of new rights in relation to different premises, and requiring such rights to be created, not by the decision‑maker whose decision is impugned, but by the Housing Authority.
Whether it would be open to the applicant to bring separate proceedings claiming that in retaking possession the Housing Authority acted without lawful authority, and seeking relief that might include an injunction of the kind now sought, is not necessary to decide. No such proceedings have been foreshadowed. No argument has been developed in support of such a claim. The applicant has not satisfied me that any such proceedings would have prospects sufficient to sustain the interlocutory injunction sought. The applicant put her case entirely on the footing that final injunctive relief could be granted in these proceedings as a necessary consequential order under s 36(4)(c).
The applicant has not identified any cases involving judicial review, whether under s 36 or at common law, in which final relief was granted that created new substantive rights and duties, whether in order to avoid the practical consequences of the decision found to have been made without jurisdiction, or otherwise.
I am mindful that injunctions in public law are still the subject of development in the courts.[43] Injunctions can be granted to:
(a)maintain due administration and to avoid some of the technicalities of prerogative writs;[44] or
(b)protect statutory rights or to restrain apprehended breaches of the law, and to declare rights and obligations in relation to that;[45] or
(c)enforce private rights not enforceable through the prerogative writs.[46]
These categories may overlap.
[43] See for example, Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559; ABC v Lenah Game Meats Pty Ltd [90] (Gummow & Hayne JJ) and the cases referred to in footnote 178 of that decision.
[44] Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 [25] (Gaudron, Gummow, Kirby JJ); Corporation of the City of Enfield v DAC [57] ‑ [58] (Gaudron JJ).
[45] Corporation of the City of Enfield v DAC [18] ‑ [20] (Gleeson CJ, Gummow, Kirby & Hayne JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 [97] ‑ [98] (Gummow J); see generally Aronsen M & Groves M, Judicial Review of Administrative Action (5^th ed, 2013) ch 16 esp [16.40], [16.100] ‑ [16.120].
[46] John Fairfax & Sons Ltd v Australian Telecommunications Commission (1977) 2 NSWLR 400, 405 ‑ 406 (Moffit P, Reynolds JA agreeing); Della‑Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561 569 ‑ 570.
None of these categories supports the grant of the injunction sought in this case.
As I have said, injunctions may be available in a context where a question of whether a particular right or interest is public or private may affect the availability of prerogative relief. In this case, the impediment to the grant of the injunction sought does not lie in the public or private character of the rights or interests of the applicant sought to be protected. Rather, the impediment is that the injunction seeks to create new rights, in different premises, enforceable against the Housing Authority as a substitute for, and in an attempt to repair the loss of, rights defeated as a consequence of a decision made by the magistrate.
The relevant rights of the applicant and duties of the Housing Authority were confined to the original premises. They do not extend to any new premises, whether in an attempt to replace the original premises or otherwise. Unlike in R v Kensington and Chelsea Royal London Borough Council; Ex parte Hammell,[47] relied on by the applicant as 'closely analogous',[48] the statute in this case does not impose a duty on the Housing Authority to ensure that accommodation is made available to an applicant for accommodation.
[47] R v Kensington and Chelsea Royal London Borough Council; Ex parte Hammell [1989] 1 QB 518, cited with approval by Ipp J in Della-Vedova (568 ‑ 569).
[48] Applicant's supplementary submissions [16].
In my view, none of the cases relied on by the applicant[49] provide any support for the injunction sought in this case.
[49] Applicant's supplementary submissions [9] - [18].
The applicant emphasises the harsh consequences for her in the events that have happened, if s 36(4)(b) is construed in a way that does not encompass the final relief she seeks. She submits that those consequences support a broader construction of s 36(4)(b) that would empower the court to grant the applicant the relief she seeks. I do not accept that submission. If the applicant succeeds in establishing jurisdictional error, but does not obtain any relief of practical assistance, that will not be the result of the statutory scheme. The statutory scheme enabled an application under s 36 to have been made at any time from 29 May 2014 when the magistrate made the order. Such an application could have been coupled with an application for a stay of the magistrate's order. The Housing Authority did not retake possession until 1 August 2014, nine weeks after the magistrate's order. In any event, there is a limit to the work that can be done by consequences in a process of statutory construction. For reasons already given, in my view the text and evident purpose of s 36 mean that a claim for the final relief sought by the applicant does not have reasonable prospects of success. To my mind, the grant of the final relief claimed by the applicant would involve a distortion of the nature and purpose of review proceedings under s 36.
These matters seem to me to compel the conclusion that a claim for the final relief sought by the applicant has no reasonable prospects of success.
For these reasons, in my view, the applicant's prospects of ultimate success in obtaining the relief claimed fall well short of sustaining the grant of the interlocutory injunction sought.
There are other matters, of less significance, that further reinforce the unlikelihood of final orders to the effect sought by the applicant.
The orders sought by the applicant contemplate a new tenancy agreement under the Residential Tenancies Act. As the application was originally framed, such an agreement would have been of indefinite duration. During the hearing, the applicant was driven to amend the order to make it terminable in the event of an order terminating the original tenancy. Had such an amendment not been made, the application would have been open to the obvious objection that the relief sought would put the applicant in a better position than if she had won her substantive claim for final relief.
The term of the injunction that makes the new tenancy agreement terminable upon the lawful order terminating the original tenancy is problematic in at least two respects.
First, the injunction sought contemplates a tenancy agreement under the Residential Tenancies Act. However a tenancy terminable in the event of an order subsequently made does not fit into the framework of the Residential Tenancies Act. The Act provides for fixed term and periodic tenancies. The Act creates different regimes, particularly concerning termination of the lease, for these different kinds of tenancies. A tenancy terminable upon the subsequent happening of an event does not fit into this statutory framework.
Secondly, the applicant's proposed final relief would contemplate that, in addition to the injunction sought, the original application for an order terminating the previous tenancy would be remitted to a magistrate for determination. If a termination order were then made, the new tenancy agreement would come to an end. There seems to me to be an air of unreality in the proposed remitter of the original application. The remitted application would involve the magistrate hearing a case about whether the previous tenancy should be terminated. That question would fall to be determined in circumstances where the applicant is not in occupation of the premises the subject of the original tenancy agreement.

Conclusion

For these reasons I would dismiss the application for an interlocutory injunction.
At the hearing on 1 October 2014 the parties did not address submissions specifically to the question of whether a review order should be made. Notwithstanding the considerable overlap between that question and the issues addressed on 1 October 2014 and in these reasons, I think it is appropriate to allow the parties an opportunity to make submissions on whether a review order should, in light of these reasons, be made.