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…

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.

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Details

Case: [2012] WASC 199
Decision Date: 7 JUNE 2012

CaseChat Overview and Summary

In the Magistrates Court of Western Australia, a dispute arose between a tenant and a landlord regarding the recovery of a security bond. The tenant, having vacated the premises, sought to recover the bond under the Residential Tenancies Act 1997 (WA). The court was asked to determine if the magistrate had erred in denying the tenant's application to recover the bond. This involved examining whether the magistrate's decision was affected by a denial of natural justice or whether the tenant had an arguable case for the recovery of the bond.

The primary legal issues before the court were whether the magistrate had failed to adhere to the principles of natural justice and if the tenant had established an arguable case for the recovery of the security bond. The tenant argued that the magistrate had not provided an adequate opportunity to present evidence and had therefore denied them natural justice. Additionally, the tenant contended that they had an arguable case for recovering the bond based on the landlord's failure to provide a bond return schedule.

The court found that the magistrate had not denied natural justice by failing to allow the tenant to present evidence. It was determined that the tenant had not established an arguable case for the recovery of the bond. The court held that the tenant had not shown that the landlord had failed to provide a bond return schedule, and therefore, the application for the bond's recovery was dismissed. The court concluded that the decision of the magistrate was not flawed and upheld the denial of the tenant's application.

Orders