RE GLYNN; EX PARTE ROYLE & ORS [2002] WASC 254

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 254
Case No:	CIV:2364/2002	Heard:	23 OCTOBER 2002
Coram:	HASLUCK J	Delivered:	23/10/02
No of pages:	7	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	JAMES WILLIAM ROYLE CHRISTOPHER JAMES ROYLE PATRICIA WENDY ROYLE GUY ROYLE ROBERT MAURUCE McMAHON GLYNN
Catchwords:	Certiorari Residential Tenancies Act Whether certain tenancies were tenancies for holiday homes Whether Magistrate exceeding his jurisdiction in holding that the Act applied Whether arguable case concerning jurisdictional error demonstrated
Legislation:	Local Court Act 1904, s 106Q Residential Tenancies Act 1987, s 5 Supreme Court Rules, O 56
Case References:	Re Kennedy; ex parte Crozier [2002] WASC 190 Talbot v Lane (1994) 14 WAR 120 Craig v State of South Australia (1995) 184 CLR 163 J-Corp Pty Ltd v City of Melville, unreported; FCt SCt of WA; Library No 980563; 25 September 1998 Re Alison Ruth Robins SM; ex parte West Australian Newspapers Ltd [1999] WASCA 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE GLYNN; EX PARTE ROYLE & ORS [2002] WASC 254 CORAM : HASLUCK J HEARD : 23 OCTOBER 2002 DELIVERED : 23 OCTOBER 2002 FILE NO/S : CIV 2364 of 2002 MATTER : Application for a Writ of Certiorari and a Writ of Prohibition against ROBERT MAURICE McMAHON GLYNN SM, ALBANY EX PARTE

JAMES WILLIAM ROYLE

CHRISTOPHER JAMES ROYLE

PATRICIA WENDY ROYLE

GUY ROYLE

Applicants

AND

ROBERT MAURUCE McMAHON GLYNN

Respondent

Catchwords:

Certiorari - Residential Tenancies Act - Whether certain tenancies were tenancies for holiday homes - Whether Magistrate exceeding his jurisdiction in holding that the Act applied - Whether arguable case concerning jurisdictional error demonstrated

(Page 2)

Legislation:

Local Court Act 1904, s 106Q

Residential Tenancies Act 1987, s 5
Supreme Court Rules, O 56

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicants : Mr P G McGowan

Respondent : Mr S K Shepherd

Solicitors:

Applicants : Paiker & Overmeire

Respondent : Mallesons Stephen Jaques

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

Re Kennedy; ex parte Crozier & Ors [2002] WASC 190
Talbot v Lane (1994) 14 WAR 120

Case(s) also cited:

Craig v State of South Australia (1995) 184 CLR 163
J-Corp Pty Ltd v City of Melville, unreported; FCt SCt of WA; Library No 980563; 25 September 1998
Re Alison Ruth Robins SM; ex parte West Australian Newspapers Ltd [1999] WASCA 16

(Page 3)

1 HASLUCK J: This is an application for a writ of certiorari which is made pursuant to O 56 of the Supreme Court Rules. The grounds for relief are reflected in the papers dated 27 September 2002.

2 The terms of the proposed relief are that an order do issue calling upon Robert Morris McMahon (the Stipendiary Magistrate at Albany) and the parties listed in sch 1 (the tenants) to show cause before the Full Court of this honourable Court as to why a writ of

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 Re Glynn; Ex Parte Royle

Details

AGLC: Re Glynn; Ex Parte Royle [2002] WASC 254
Case: [2002] WASC 254
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Re Glynn; Ex Parte Royle & Ors was heard by Hasluck J on 23 October 2002. The applicants, James William Royle, Christopher James Royle, Patricia Wendy Royle, and Guy Royle, sought a writ of certiorari and a writ of prohibition against Robert Maurice McMahon Glynn, the Stipendiary Magistrate at Albany, and the tenants of certain sites at Orleans Bay Caravan Park. The applicants challenged a decision made by the Magistrate on 5 July 2000 that agreements of lease between the applicants and the tenants were not bona fide for the purpose of conferring a right to occupy the premises for a holiday, and therefore the Magistrate had jurisdiction under the Residential Tenancies Act 1987 to hear the matters before him. The applicants argued that the Magistrate erred in law in construing s 5(2)(e) of the Act, in concluding that the fact that the sites may be used for other than holidays was a basis for the application of the Act, and in failing to give sufficient reasons for the conclusion that the evidentiary burden cast upon the applicant had not been met.

The legal issues in this case centred around the interpretation of s 5 of the Residential Tenancies Act 1987, which states that the Act does not apply to a tenancy agreement if it was bona fide entered into for the purpose of conferring on a person a right to occupy premises for a holiday. The applicants argued that the Magistrate failed to apply the criteria enunciated in the Act and took into account irrelevant considerations in determining the nature of the dispute before him. The court considered whether the Magistrate exceeded his jurisdiction in holding that the Act applied and whether the applicants had demonstrated an arguable case concerning jurisdictional error.

In his reasoning, Hasluck J noted that at the order nisi stage, the task was to consider whether the applicant could show an arguable case that upon the return of the order nisi before the Full Court, an order absolute would be made. The court found that there was an arguable case in support of the application for an order nisi, as there was a basis for saying that the Magistrate fell into error by taking into account an irrelevant or extraneous consideration which may have had an effect upon the jurisdiction he purported to be exercising. The court was also persuaded that there was an arguable case in regard to the jurisdictional issue, and an order nisi should be made with the result that the matter would then be referred to the Full Court for a determination. The applicants would be responsible for applying for further directions as to how the matter is to proceed before the Full Court.

Final orders:
1. An order nisi should be made in the terms sought, referring the matter to the Full Court for a determination.
2. The applicants should be responsible for applying for further directions as to how the matter is to proceed before the Full Court.

Orders