Re Her Honour Magistrate Richardson; - [2012] WASC 199

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE HER HONOUR MAGISTRATE RICHARDSON; EX PARTE MILLER [2012] WASC 199

CORAM: HALL J

HEARD: 7 JUNE 2012

DELIVERED : 7 JUNE 2012

FILE NO/S: CIV 3319 of 2011

MATTER :An application under the Magistrates Court Act 2004 (WA) s 36 for a review order against Ms S P Richardson, Magistrate of the Magistrates Court of Western Australia at Armadale
EX PARTE
KEVIN MILLER
SHERYN MILLER
Applicants
AND
CHRISTOPHER McCORMICK
Respondent

Catchwords:

Magistrates Court - Review order - s 36 Magistrates Court Act 2004 (WA) - Residential Tenancies Act 1997 (WA) - Application by tenant to recover security bond - Whether denial of natural justice - Whether arguable case

Legislation:

Nil

Result:

Review order granted

Category: B

Representation:

Counsel:

Applicants: In person
Respondent: No appearance

Solicitors:

Applicants: In person
Respondent: No appearance

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

De Alwis v Department of Housing and Works t/as Homewest [2006] WASC 14
Re Magistrate G Smith; Ex parte Ives [2010] WASC 249
Re Magistrate Greg Cockram, Magistrate of the Magistrates Court at Perth; Ex parte Miller [2009] WASC 350

HALL J: This is an application for a review order pursuant to s 36 of the Magistrates Court Act 2004 (WA). The procedure in relation to such an application is provided for in O 56A of the Rules of the Supreme Court 1971 (WA).
The applicants, Mr and Mrs Miller, say that they are aggrieved by a decision made by her Honour Magistrate Richardson on 7 November 2011. As I understand the papers filed by the applicants, the nature of that decision was that the magistrate dismissed an application brought by them for return of a security bond paid in respect of rental premises. In particular the applicants claim that they were denied natural justice by the magistrate.
The notice of originating motion filed by the applicants refers to proceedings in the Magistrates Court being brought pursuant to sch 1 pt D cl 8(1) of the Residential Tenancies Act 1997 (WA). That clause provides that a competent court may, upon application by a tenant, order that the amount of a security bond be paid to the tenant except in specified circumstances. An application under cl 8 is a prescribed dispute within the meaning of s 12 of the Act, irrespective of the amount claimed.
Section 12A of the Act provides that the Magistrates Court has exclusive jurisdiction to hear and determine a prescribed dispute. 'Prescribed disputes' are 'minor cases' for the purposes of the Magistrates Court Civil Proceedings Act 2004 (WA) and the jurisdiction is to be exercised accordingly.
Section 26 of the Residential Tenancies Act provides that an order made by a court under the Act is final and binding. It also provides that no appeal shall lie in respect of such an order. In particular s 26(2) provides that no order shall be made under s 36 of the Magistrates Court Act in respect of proceedings taken in the Magistrates Court under the Residential Tenancies Act unless the Supreme Court is satisfied that the Magistrates Court had no jurisdiction under the Residential Tenancies Act to deal with the matter or that a party to the proceedings has been denied natural justice.
Normally appeals from the Magistrates Court when exercising civil jurisdiction are to the District Court: s 40 of the Magistrates Court Civil Proceedings Act 2004. However, as a consequence of s 26 of the Residential Tenancies Act any such appeals are barred in respect of matters of this type. This means the only possible avenue for review is under s 36 of the Magistrates Court Act which is the effective replacement for prerogative writs in respect of magistrates. That is the procedure that the applicants are seeking to invoke here. The procedure for obtaining a review order is that a person aggrieved makes an application ex parte, supported by an affidavit. This the applicants have done. The application is then listed before a judge in chambers who may make a review order, refuse the application or make an order under s 36(5). An order under s 36(5) is not appropriate here. If a review order is made, it is then served and listed for hearing.
The ex parte hearing is a preliminary proceeding that can act as a filter to identify matters that are not arguable or have no legal or jurisdictional merit: Re Magistrate G Smith; Ex parte Ives [2010] WASC 249. Neither s 36 of the Magistrates Court Act nor O 56A of the Rules provides an indication of the basis upon which an application for a review order can be made. However, since a review order is analogous to a prerogative writ, the appropriate test would seem to be whether there is an arguable case. That is a low threshold. That was the test applied by Simmonds J in Re Magistrate Greg Cockram, Magistrate of the Magistrates Court at Perth; Ex parte Miller [2009] WASC 350 and by Heenan J in De Alwis v Department of Housing and Works t/as Homewest [2006] WASC 14, both of which also involved proceedings under the Residential Tenancies Act.
The affidavit filed in support of this application is not a model of clarity. However, I must take into account that the applicants are litigants in person. What that affidavit states is that the applicants were the tenants of a rental property in Canning Vale between 20 March 2010 and 5 July 2011. On 9 September 2011 the applicants applied in the Magistrates Court for return of their security bond. The application was dismissed by the magistrate following a hearing on 7 December 2011. It would appear that there was an issue as to whether they were entitled to recover the whole of the bond. This was because the landlord claimed that the applicants had caused damage to the property. A transcript of those proceedings has been handed to me today on this ex parte hearing and that transcript is a lengthy one. It indicates that the magistrate went through a number of different claims made by the parties, both the landlord and the tenants, the applicants to these proceedings.
In the proceedings in the Magistrates Court the applicants disputed that they caused some of the damage that was claimed by the landlord, in particular damage to a lawn. They also claimed that they should not be liable for house cleaning and carpet cleaning. They say that they had photographs showing the condition of the property at the time they vacated. They say that they were not afforded an opportunity to tender those photographs to the magistrate but that, in contrast, the landlord was able to provide his photographs. They also say that they had no opportunity to challenge the information put forward by the landlord. It is in these respects that the applicants say that they were not afforded natural justice.
It is difficult to determine from the transcript, which extends to some 48 pages, whether it is clear that the existence and relevance of the applicants' photographs was made known to the magistrate and whether her Honour refused to receive them. Mr Miller has pointed to a number of references in the transcript where he made reference to having photographs. There does not seem to be any suggestion that those photographs were handed up. At this preliminary stage I am prepared to accept that they were not handed up and that he was not asked to do so. Whether that involves a denial of natural justice is arguable, but obviously the applicants relied to some extent upon guidance from the magistrate.
Mr Miller also says that he had an expectation that he would be given an opportunity to give evidence on oath or challenge evidence advanced by Mr McCormick. I do take into account that this proceeding sat under the minor causes jurisdiction of the Magistrates Court Act, that is, the rules of evidence did not apply and the Magistrates Court was entitled to proceed in a more informal way. Nonetheless, all that needs to be established at this stage is an arguable case. The present (as yet unchallenged) position is that the applicants had relevant evidence available at the hearing that they wished to place before the magistrate but that an opportunity to do so was not afforded. I am prepared to accept that there is at least an arguable case. The strength of that case will be determined on the hearing of this review order.
I will make orders regarding the serving of the relevant papers on the Magistrates Court and the respondent landlord.