Re Glynn; Ex Parte Royle
[2002] WASC 254
RE GLYNN; EX PARTE ROYLE & ORS [2002] WASC 254
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 254 | |
| Case No: | CIV:2364/2002 | 23 OCTOBER 2002 | |
| Coram: | HASLUCK J | 23/10/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| 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
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 certiorari and a writ of prohibition should not be issued against the learned Magistrate.
Procedural Matters
3 It is apparent from the relevant documents that the intention of the writ is to quash a decision made at Esperance on 5 July 2000 in respect of the matters listed in the schedule to the application. The applicants challenge a finding that agreements of lease entered into between the applicants and the tenants were not entered into bona fide for the purpose of conferring a right to occupy the premises in question for a holiday with the result that the Magistrate had jurisdiction under the Residential Tenancies Act 1987 to hear the matters before him.
4 The grounds of the application are (1) that the Magistrate was wrong in law in construing s 5(2)(e) of the Act as requiring proof as to the intention of the lessor in granting the lease; (2) that the Magistrate erred in law in concluding that the fact that the sites may be used for other than holidays was a basis upon which it could be concluded that the Residential Tenancies Act applied; (3) that the Magistrate failed to give any or any sufficient reasons for the conclusion that the evidentiary burden cast upon the applicant had not been met.
5 There was a further ground referring to a rebuttable presumption in s 5.
6 This is an application for an order nisi. I remind myself that the order sought is to have the matter returnable before the Full Court. I remind myself also that at the order nisi stage my task is to consider whether the applicant can show an arguable case that upon the return of the order nisi before the Full Court an order absolute would be made.
7 The purpose at this stage is to eliminate those cases which have no prospect of success on a cursory examination by the court of the matters in issue, Talbot v Lane (1994) 14 WAR 120 at 152. I refer also to Re Kennedy; ex parte Crozier & Ors [2002] WASC 190.
(Page 4)
Background
8 The background to the matter is described in the applicants' outline of submissions.
9 It seems that the applicants are the owners of Orleans Bay Caravan Park which is situated at the Duke of Orleans Bay approximately 80 kilometres east of Esperance.
10 The tenants of some 33 of the sites at Orleans Bay commenced proceedings in the Local Court at Esperance for orders that the tenants in each case were subject to the Residential Tenancies Act.
11 Each of the 33 tenants to whom the present application is directed are set out in sch 1 of the notice of motion. One finds in sch 2 details of each of the applications under the Residential Tenancies Act.
12 The applicants' submissions note that by s 106Q of the Local Court Act 1904, matters arising in relation to issues under the Residential Tenancies Act are to be determined by a Stipendiary Magistrate within the Small Disputes Division of a Local Court. The application of the Residential Tenancies Act is constrained by the jurisdiction described in s 5 of the Act.
13 The issue before the Magistrate in regard to the applications made by each of the tenants was whether the tenancy agreement was one entered into for the purpose of conferring on a person a right to occupy premises for a holiday. If that issue had been determined adversely to the tenants, then their tenancy agreements would not be subject to the Residential Tenancies Act and would be determined by the usual commercial considerations.
The Transcript
14 It is clear from the transcript of the proceedings below that reliance was placed by the applicants upon s 5 of the Act, and upon the provisions mentioned earlier. The effect of these provisions is that the Act does not apply to a tenancy agreement where the agreement is bona fide entered into for the purpose of conferring on a person a right to occupy premises for a holiday.
15 That provision has to be considered also in the light of s 5(4) which reads as follows:
(Page 5)
- "An agreement conferring a right to occupy premises for a fixed term of 3 months or longer shall be deemed, in the absence of proof to the contrary, not to have been entered into bona fide for the purpose of conferring a right to occupy the premises for a holiday."
16 It is apparent from the transcript that the learned Magistrate felt compelled to make a ruling as to the application of these provisions. My attention has been drawn to the relevant passage in the course of argument this morning.
17 The learned Magistrate's reasoning in that regard, quite clearly, was bound to have an effect upon all the applications before him. It seems to me that when an attempt is made to obtain an order nisi directed to a decision of the Magistrate on 5 July 2002 it is his ruling in general terms which is brought into issue. His ruling on the jurisdictional issue had a consequential effect on all the applications before him and which are now brought into issue in these proceedings.
The Ruling
18 The learned Magistrate's ruling upon this matter appears at pages 82 to 86 of the transcript. It is said that he fell into error of a jurisdictional kind in that he failed to apply the criteria enunciated in the Act as I have just described it.
19 In particular, one finds at page 86 a reference to his determination that there was no evidence before him as to the intention of the lessor in granting the leases and some further comments which suggest that intention could be regarded as the operative consideration.
20 Again, at page 87 one finds some reference to the question of whether there was a right to occupy conferred in respect of occupation "just" for a holiday. The emphasis given to the word "just' suggests that he is bringing into play a consideration that is not allowed for by the criteria mentioned in the Act.
Conclusion
21 It seems to me, against this background, that a question does arise as to whether the learned Magistrate took into account irrelevant considerations in determining the nature of the dispute before him.
(Page 6)
22 I recognise that there is a degree of complexity in the situation and as to the manner in which the reasoning of the learned Magistrate should be characterised. I have listened with great respect to everything that Mr Shepherd has said as counsel for the respondent in opposing the order nisi. It may well be that the arguments he advances will ultimately find favour.
23 However, for present purposes, I am of the view that there is an arguable case in support of the application for an order nisi. There is a basis for saying that the Magistrate fell into error, that is to say, that he took into account an irrelevant or extraneous consideration which may have had an effect upon the jurisdiction he purported to be exercising.
24 It was put to me by both counsel that the effect of various provisions in the Residential Tenancies Act, and particularly s 12, is to confer an exclusive jurisdiction upon the learned Magistrate. There is a privity clause in s 26 which suggests that the order of a Magistrate is to be treated as final and binding.
25 However, it is clear from s 26 of the Act that this provision will be an avenue for relief by way of a writ of certiorari in special circumstances, namely where it appears that the Magistrate or Clerk acted without jurisdiction.
Orders
26 In my view, as I have indicated, there is an arguable case in regard to the jurisdictional issue. I am therefore persuaded that an order nisi should be made with the result that the matter will then be referred to the Full Court for a determination.
27 I pause to say that I am conscious of an element of procedural complexity in the matter before me. Various tenancy agreements were effected by the decision made by the learned Magistrate on 5 July 2002. There is a procedural question to be resolved as to what materials should be brought before the Full Court. It therefore seems to me that the order I make this morning should provide for the applicants to have the responsibility for applying for further directions as to how the matter is to proceed before the Full Court.
28 I will not canvass the exact detail of that at the moment because I anticipate that counsel will need to confer with a view to ascertaining whether anything can be agreed. However, in summary, I am persuaded
(Page 7)
- that the application for relief is supported by an arguable case and that an order nisi in the terms sought should be made.
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