Re Brian Charles Gluestein; Ex Parte Anthony

Link copied
Case Copied 38 min read

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Re Brian Charles Gluestein; Ex Parte Anthony and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2014] WASC 381
Decision Date

CaseChat Overview and Summary

The case of Re Brian Charles Gluestein; Ex Parte Anthony involved a legal dispute before the Western Australian Supreme Court. The applicant, Anthony, sought an interlocutory injunction to prevent the enforcement of a decision made by the Magistrates Court of Western Australia, which had ordered the removal of certain property from his possession. The legal issues in this case centred around the jurisdiction of the court to grant the interlocutory injunction, the scope of appropriate injunctions, and whether the relief sought was a 'necessary consequential order'.

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

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

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.