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
ApplicantAND
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…
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- Case
- [2014] WASC 381
- Decision Date
CaseChat Overview and Summary
The court considered whether the applicant had a sufficiently arguable claim to a right to the final relief sought. The court found that the applicant needed to establish a reasonably strong probability of ultimate success in order to sustain the interlocutory relief now sought. The court also evaluated the apparent strength of the applicant's claim for final relief, considering the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought. The court concluded that the applicant had not demonstrated a reasonably strong probability of ultimate success, and therefore dismissed the application for an interlocutory injunction.
The court's reasoning was based on established legal principles regarding the purpose of interlocutory injunctions, the requisite strength of the probability of ultimate success, and the practical consequences of the orders sought. The court found that the applicant's claim for final relief was not sufficiently arguable, and therefore the application for an interlocutory injunction was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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]. 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.