Re Magistrate Owen-Conway - [2024] WASC 333

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE MAGISTRATE OWEN-CONWAY; EX PARTE BAJAJ [2024] WASC 333
CORAM:   SEAWARD J
HEARD:   6 SEPTEMBER 2024
DELIVERED          :   11 SEPTEMBER 2024
FILE NO/S:   CIV 2004 of 2024
MATTER:   An application under the Magistrates Court Act 2004 section 36 for a review order against Magistrate Owen‑Conway, Magistrate of the Magistrates Court at Perth

EX PARTE
RAMESH BAJAJ
Plaintiff

Catchwords:

Application for review order under s 36 of the Magistrates Court Act 2004 (WA) - Residential Tenancies Act 1987 (WA) - Whether applicant has established an arguable case of jurisdictional error by the Magistrate - Whether Magistrate had jurisdiction to hear application - Whether application before the Magistrate an abuse of process - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA) s 36
Residential Tenancies Act 1987 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff

In person

Solicitors:

Plaintiff

In person

Cases referred to in decision:

Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Craig v South Australia (1995) 184 CLR 163
Rayney v AW [2009] WASCA 203
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Zucal v Harper (2005) 29 WAR 563

SEAWARD J:

Introduction

Mr Bajaj is the owner of a property in Derby Road, Shenton Park. He rented that property to three tenants, Valencia Tang, Simon Potikoglu and Matthew Cole pursuant to a residential tenancy agreement dated 26 July 2023.
Relations between Mr Bajaj and his tenants deteriorated, resulting in each filing competing applications under the Residential Tenancies Act 1987 (WA) (RT Act) in the Magistrates Court. Both applications came before Magistrate Owen-Conway for their first return dates on 31 July 2024.
The Magistrate made orders in each matter terminating the tenancy agreement. Further, in the tenants' application, her Honour ordered that the tenants' claim for compensation be listed and programmed for trial.
Mr Bajaj applies under s 36 of the Magistrates Court Act 2004 (WA) (MC Act) for a review order and a stay in relation to the decision of the Magistrate in relation the tenants' claim for compensation only.
The matter came before the court on an ex parte basis on 6 September 2024. Mr Bajaj filed an affidavit sworn by himself on 26 August 2024, attaching the relevant documents and also made oral submissions. At the conclusion of the hearing, Mr Bajaj was also given leave to provide to the court and file the written submissions which had formed the basis of his oral submissions.
Mr Bajaj's application raises the following issues:
(1)Has Mr Bajaj established an arguable case that the Magistrate made a jurisdictional error such that a show cause order should be issued?
(2)If so, are there exceptional circumstances to justify the grant of a stay of the relevant orders made by the Magistrate pending final determination of the review order application?
For the reasons set out below, I dismiss Mr Bajaj's application for a review order and a stay.

Background facts

Applications

Mr Bajaj's application was filed on 16 July 2024, and given matter number RSTN/8902/2024. This is not the application the subject of the review order. By his application Mr Bajaj sought the following five orders:
1.The order that the residential tenancy agreement executed 27 July 2023 terminates on 26 July 2024.
2.The order that the tenants handover the vacant possession of the property by midday on 26 July 2024.
3.The order that the tenants and the lessor complete the joint inspection on the condition of the property before midday on 26 July 2024.
4.The order that the tenants and the lessor complete the joint disposal of the security bond, subject to the completion of the property condition and the report.
5.The order that the tenants pay the rent up until the date of termination of the residential tenancy agreement and costs of water usage (remaining unpaid) as on the date of the termination of the agreement.
The tenants' application was filed on 12 July 2024 and was allocated matter number RSTN/8786/2024. This is the application which is the subject of the review order. In their application, the tenants sought the following orders:
• Compensation as a result of a retaliation, breach or breaches of the agreement
• Release of the security bond
The sum of $1,320.00 to be paid to Valencia TANG
The sum of $1,060.00 to be paid to Simon POTIKOGLU
The sum of $1,060.00 to be paid to Matthew COLE
The sum of $0.00 to be paid to Ramesh BAJAJ
• Termination of the agreement
• Termination of the agreement for breach by lessor (Section 75 of the RT Act 1987)
1. Work order to get the leaking roof in the garage fixed.
2. Restraining order. Mr Bajaj has shown he is incapable of acting in a polite, or professional manner while on premise. We ask that all communications be through his agent and that he not attend the property in person.
3. Tenant compensation Bond. Mr Bajaj is frequently slow to respond to and approve repairs. Similarly he has on several occasions resisted compensating tenants and tradespeople. We ask that a tenant compensation bond be put in place so that we may promptly seek necessary repairs without fear of financial loss.
4. Rent reduction.

Hearing on 31 July 2024

Both applications came before the Magistrate on 31 July 2024. This was the first return date. Two of the tenants, Mr Cole and Ms Tang, were present, but the third, Mr Potikoglu was at work and did not attend.
The Magistrate first considered the issue of termination of the tenancy. Both applications sought an order that the tenancy be terminated, albeit pursuant to different sections of the RT Act. However, by the time of the hearing, the tenants had vacated the premises and left the keys locked in the house on 26 July 2024. The tenants said they adopted this course of action as they had attempted to contact Mr Bajaj by telephone and email and had not received a response. The tenants paid rent up until 26 July 2024.[1]
[1] ts 31/07/2024, 7- 8.
Whilst there was some uncertainty on Mr Bajaj's part as to the legal effect of the tenants vacating the premises, the learned Magistrate concluded that as the tenants had provided vacant possession to Mr Bajaj, after he had issued a notice of termination, the residential tenancy was terminated pursuant to s 60(1)(a) of the RT Act. The Magistrate observed that, pursuant to the terms of s 60(1)(a), the fact that the tenants had delivered vacant possession outside of the time specified in the termination notice did not alter that conclusion. The Magistrate concluded that the residential tenancy terminated on 26 July 2024.[2]
[2] ts 31/07/2024, 9 - 13.
The Magistrate then went on to consider the tenants' compensation claim and spent some time attempting to identify the various components of that claim; the evidence in support; the views of the parties; and whether there could be any agreement between the parties. The Magistrate expressly referred to the quantum of the tenants' claim, being $9,972.23; that the claim therefore fell within the minor case jurisdiction of the Magistrates Court; and that her Honour's primary function was to see whether the matter could be resolved.[3] Her Honour engaged in exchanges with the parties in an attempt to see whether the parties could agree this part of the tenants' application, including aspects of the claims and what information would be needed to establish the claims.[4]
[3] ts 31/07/2024, 34, 40.
[4] ts 31/07/2024, 19 - 26, 32 - 45, 62.
During the hearing, Mr Bajaj submitted that the tenants' claim, being a minor case claim, was an abuse of process; that a trial was a waste of public resources and was interfering with the court and the course of justice.[5] The Magistrate addressed this issue, and stated:[6]
HER HONOUR: … What's left in this is these claims for compensation - so loss of amenity and property damage. And they will all turn on the conduct - the negligent or intentional conduct of one party or the other.
BAJAJ, MR: Correct.
HER HONOUR: So I'm going to have to have a trial about that. You say you've gone and repaired something. They say you have done it in a negligent fashion, and you've caused damage to their property. I don't know what else was said.
[5] ts 31/07/2024, 35, 52.
[6] ts 31/07/2024, 36.
The Magistrate explained that she was going to order that the compensation claim be listed for trial and that the trial processes was intended to be fair and to ensure all parties had a reasonable opportunity to be heard.[7]
[7] ts 31/07/2024, 54 - 55.
It was also apparent from the transcript that not all documents or information were before the Magistrate on 31 July 2024. The tenants stated that they had difficulty with their application as they were only able to attach 10 supporting documents, and they had additional documents that were relevant. The tenants had brought copies of some additional documents to court, however other documents were referred to.[8] Mr Bajaj also appeared to have other documents[9] or witness evidence[10] he wished to rely on that could not be provided to the court or the tenants ahead of the appearance.

Orders of the Magistrate

[8] ts 31/07/2024, 15, 34, 41.

[9] ts 31/07/2024, 24.

[10] ts 31/07/2024, 46.

At the conclusion of the hearing, the Magistrate made orders on both applications.
In relation to Mr Bajaj's application, the Magistrate made the following order terminating the residential tenancy agreement.
1.The Residential Tenancy agreement between the parties dated 26 July 2023 (agreement) in respect of the property situated at 85 Derby Road, Shenton Park WA 6008 (property) having been terminated pursuant to section 60(1)(a)(i)of the Residential Tenancies Act 1987, by reason of the Respondent Tenants' delivering vacant possession of the property to the Applicant Lessor on 26 July 2024 pursuant to the Applicant Lessor's Form 1 C - Notice of Termination dated 24 June 2024, the Applicant Lessor's Form 12 - Application lodged on 16 July 2024 for an Order in terms of paragraph 1 and 2 of the same, is dismissed.
The Magistrate considered the remaining orders sought by Mr Bajaj and concluded that she did not have the power to make orders 2 and 3 (relating to the joint inspection and the security bond) as now that an order for termination had been made, the parties were required to follow the process for a final inspection under the RT Act.[11] The Magistrate did not make order 5 of Mr Bajaj's application, as the issue of the payment of rent and water usage was no longer in issue.[12]
[11] ts 31/07/2024, 28 - 32, 59 - 60.
[12] ts 31/07/2024, 8 - 9, 37.
In relation to the tenants' application, the Magistrate dismissed the tenants' application for an order terminating the residential tenancy, and instead ordered the termination of the residential tenancy under s 60(1)(a)(i) of the RT Act. Mr Bajaj does not challenge this order.
The Magistrate then ordered that the tenants' claim for compensation be listed for trial. The Magistrate also made various programming orders programming that application for trial.[13] As Mr Bajaj challenges those orders, I have set them out in full:
[13] ts 31/07/2024, 47 - 50, 55 - 57.
2.The Applicant Tenants' claim for compensation arising from alleged breaches of the Respondent Lessor's obligation to repair and maintain the property; to provide the Respondent Tenants with quiet enjoyment and the Applicant Lessor's obligation to take reasonable care to avoid property damage to the Respondent Tenants in undertaking any repairs is listed for a Trial hearing on a date to be fixed by the Court.
3.By 21 August 2024, the parties shall lodge in the Court a written submission of their respective unavailable dates to attend and conduct a Trial hearing in January, February and March 2025.
4.By 22 August 2024, the Applicant Tenants shall lodge in the Court and serve on the Respondent Lessor (by email) an indexed and paginated Form 32A - Statement of Intended Evidence of a Witness from each and every witness which the Applicant Tenants intend to call at the Trial (including themselves), attaching copies of any documents that the witness refers to and through whom the documents are to be tendered at the Trial hearing.
5.By 22 August 2024, the Applicant Tenants shall lodge in the Court and serve on the Respondent Lessor (at his postal address for service) any device upon which is stored any electronic visual or auditory recording on which the Applicant Tenants intend to rely at the Trial hearing.
6.By 13 September 2024, the Respondent Lessor shall lodge in the Court and serve on the Applicant Tenants an indexed and paginated Form 32A -Statement of Intended Evidence of a Witness from each and every witness which the Respondent Lessor intends to call at the Trial hearing (including himself), attaching copies of any document that the witness refers to and though [sic] whom the documents are to be tendered at the Trial hearing.
7. By 13 September 2024, the Respondent Lessor shall lodge in the Court and serve on the Applicant Tenants (at their respective postal addresses for service) any device upon which is stored any electronic visual or auditory recording on which the Respondent Lessor intends to rely at the Trial hearing.
8. Where a party who has served a Form 32A - Statement of Intended Evidence of a Witness, does call the intended witness at the Trial hearing:
(a) that party may not, without leave of the Court, lead evidence from that witness if the substance of the evidence is not included in the statement served;
(b) subject to objections as to the admissibility of any evidence in a statement, the statement will stand as the evidence in chief of the witness; and
(c) that party shall have the statement ready for tender at the Trial, together with copies for each party, the witness and the Court.
9.The parties' respective addresses for service are as follows: [redacted]

Application and grounds of review

Mr Bajaj's originating motion filed 26 August 2024 is at times difficult to comprehend. By that originating motion, Mr Bajaj seeks the following orders:
Notice In the matter of an application under the Magistrates CouRT Act 2004 section 36 for a stay, and the review order against NATASHA OWEN-CONWAY, MAGISTRATE of the MAGISTRATE COURT OF WESTERN AUSTRALIA at PERTH EX PARTE Ramesh BAJAJ; and the affidavit of Ramesh Bajaj sworn on 26 August 2024.
At the hearing below in the *Supreme Court/Court of Appeal, Ramesh Bajaj will apply for an order 2 in a Case No. MC/CIV/PER/RSTN/8786 of 2024 and directions under order 3 to 9, since decision by order 1 be stayed until a review order hearing that order 2 to 9 of the Magistrates Court at Perth made 31 July 2024, be set aside.
Mr Bajaj clarified during the hearing on 6 September 2024 that he was seeking an order that orders 2 - 9 of the orders of the Magistrate made in the tenants' application be set aside on the grounds of jurisdictional error. Further, Mr Bajaj was seeking an order for a stay of orders 2 - 9 pending the final hearing of his review order application.
The grounds of Mr Bajaj's originating motion are also difficult to comprehend and are as follows:
Grounds of application
1. The learned Magistrate erred in law by failure to control procedures and to prevent abuse of its process to strike out claim on failure for appearance by the second applicant at a hearing of the applicant (tenants) Form 12 application for a court order lodged on 12 July 2024 under the Residential Tenancies Act 1987 (WA)("RTA"). Upon a decision made by order 1 at termination of the agreement in a cause of action of the applicant (lessor) Form 12 application for a court order lodged on 16 July 2024 under the RTA, that the Magistrate failed to examine the cause of action of the applicant (tenants) or dealt with at a hearing, the alleged breach(es) on the respondent (lessor) when hearing the application of the applicant (tenants) and determining a claim MC/CIV/PER/RSTN/8902 of 2024. The Magistrate failed to require, applicant brings forward the whole case, and not permit the interested party to litigate on claim for compensation by alleged breach(es) or make directions on deadlines for trial hearing by minor case procedure without jurisdiction. A plea of res judicata applies. Magistrate's failure at exercise of implied power to preserve jurisdiction of the court but give directions to permit proceedings at alleged breaches for compensation; failure to inquire whether court has jurisdiction to advance proceedings using the minor case procedure.
2. The learned Magistrate erred in law in failing at duty to deal with disputes concerning residential tenancy for minor case in an efficient, economic and expeditious manner to not waste resources, or that judicial and administrative resources are used effectively, within authority by a Court constituted by Magistrate exercising nature of function and power under the statute, Magistrates CouRT Act 2004 (WA)("MCA").
3. The learned Magistrate erred in law on failure of duty to protect the procedure of Magistrates Court being abused acting outside statutory jurisdiction at residential tenancy matter under Magistrates Court (Civil Proceedings) Act 2004 (WA)("MCCPA") s 8 and unjustifiably oppressive applicant (tenants) pursuit of proceedings by Magistrate's failure to prevent misuse of court procedures and rules in a way manifestly unfair to the respondent to bring administration of justice in disrepute. A failure to exercise an authority outside the functions, power and the jurisdiction under the MCA. The Magistrate had no jurisdiction on maintenance of an alleged claim that misapprehends, or disregards the nature and limits of functions, or power in proceedings, where the Magistrates Court recognises the maintenance of an action be abuse of process to constitute jurisdictional error. Res judicata be not confined at issue on termination but covers issues or facts which were clearly the part of alleged breach(es) to be dealt that it would be abuse of the process of the court to permit litigation by interested tenant in respect of alleged claim at compensation.
4. The learned Magistrate erred in law giving directions upon an order of alleged claim for compensation by interested party outside of court processes and the procedures to result breach of rules of natural justice constitutes jurisdictional error.
As a result of Mr Bajaj's oral submissions on 6 September 2024 (and his written submissions), and doing the best I can, I understand that Mr Bajaj asserts that the Magistrate made a jurisdictional error in the following two ways:
First, Mr Bajaj submits that the Magistrate did not have jurisdiction to make orders 2 - 9 of the tenants' application for the following reasons:
(1)In order 1, the Magistrate dismissed the tenants' application for termination of the residential tenancy agreement and instead ordered the termination of the residential tenancy agreement pursuant to s 60(1)(a)(i) of the RT Act.
(2)In making order 1, Mr Bajaj submits that the Magistrate made a determination that:
(a)the tenants' breaches of the residential tenancy agreement, as alleged by Mr Bajaj in his application, had been established; and
(b)Mr Bajaj's breaches of the residential tenancy agreement, as alleged by the tenants in their application, had been rejected.
(3)In light of the matters in (1) and (2), the Magistrate had no jurisdiction to list the tenants' compensation claim for trial or programme it to a trial under the RT Act as the claim was the subject of an Anshun estoppel and the matter was res judicata.
(4)To the extent the Magistrate did proceed to list the tenants' compensation claim for trial, and to apply the minor claims procedure, the Magistrate did not have jurisdiction to do so under s 6 or s 8 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).

Secondly, Mr Bajaj submits that the Magistrate made a jurisdictional error in failing to turn her mind to whether an abuse of process would be occurring if the tenants' compensation claim was programmed to trial. Mr Bajaj's submission as to why an abuse of process is alleged appears to arise from the following overlapping matters:
(1)The Magistrates Court, as a court of common law, has implied powers to control proceedings, including to dismiss a proceeding if the matter is an abuse of process.
(2)The Magistrate did not have jurisdiction to make orders 2 - 9 (for the reasons referred to above in relation to Mr Bajaj's first alleged jurisdictional error).
(3)The failure by the Magistrate to turn her mind to and consider whether the court had jurisdiction to consider the tenants' compensation claim as a minor case claim.
(4)The failure by the Magistrate to turn her mind to and consider whether, in light of the above matters, programming the tenants' compensation claim to trial as a minor case claim was an abuse of process which would incur costs and time on behalf of the court and the parties and otherwise be procedurally unfair on Mr Bajaj and inconsistent with the objectives of the minor case procedure.

Legal Principles

Review order

Section 36 of the MC Act provides for an alternative statutory form of relief to the prerogative writs which are not available in relation to a decision of a Magistrate.[14] The procedure for making, and in relation to, an application under s 36(1) of the MC Act is set out in O 56A of the Rules of the Supreme Court 1971 (WA) (RSC). The provisions provide for a two stage process whereby a person may apply ex parte under s 36(1) of the MC Act to the Supreme Court for an order requiring the court officer who made the decision (in this case the learned Magistrate) and any person who will be affected by the act, order or direction, to satisfy the Supreme Court at a later hearing that the act, order or direction made by the court officer should or should not be done or made or set aside, as the case requires.
[14] MC Act s 35.
Mr Bajaj seeks both an initial review order and a stay of execution pursuant to O 56A r 3(3)(d) of the RSC pending the final determination of the review hearing (if granted).
Importantly, s 26(2) of the RT Act modifies the application of s 36 of the MC Act in relation to matters arising under the RT Act, by providing that no order shall be made under s 36 of the MC Act unless the Supreme Court is satisfied that:
(a)the Magistrates Court had or has no jurisdiction conferred by or under the Act in respect of the proceedings; or
(b)that a party to the proceedings has been denied natural justice.
The legal principles in relation the application of s 36 of the MC Act were explained in Rayney v AW[15] and Bajaj v Magistrate Trevor Darge.[16] I have not repeated those here, save to say that:
(a)the reference to 'no jurisdiction' in s 26(2) of the RT Act should be taken to mean jurisdictional error;
(b)at the first stage in the process the court is empowered to make a review order requiring the decision-maker to show cause if the material before the court demonstrates an arguable case in relation to a ground of jurisdictional error or a denial of natural justice. That is, if the material demonstrates that the case has reasonable prospects of success; and
(c)an application under s 36 of the MC Act is concerned only with the legality of decisions, and not the merits.
[15] Rayney v AW [2009] WASCA 203 [25] - [34].
[16] Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [47] - [54].
The categories of jurisdictional error in relation to a decision of an inferior court (in addition to a denial of natural justice) were summarised by the Court of Appeal in Bajaj v Magistrate Trevor Darge as follows:[17]
First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied ( [...] a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
[17] Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [53]. See also Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181]; Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [16], citing Craig v South Australia (1995) 184 CLR 163 (177 ‑ 178).
These grounds of jurisdictional error are narrower than the grounds applicable to an administrative decision maker who is not a court or anomalous tribunal.
O 56A r 3(3)(d) of the RSC provides that the court may make an order that the review order operates as a stay of the proceedings in question until such time as the court specifies in the order, or orders otherwise. The test for ordering a stay of the proceedings under this order is:[18]
… whether or not the applicant has demonstrated that "there are special circumstances sufficient to satisfy the Court that it is just and reasonable to order a stay so as to preserve the subject matter and integrity of the litigation".

The Residential Tenancies Act

[18] Zucal v Harper (2005) 29 WAR 563 [58].

The RT Act regulates the relationship of lessors and tenants under residential tenancy agreements.
There is no dispute that a fixed term residential tenancy agreement dated 26 July 2023 existed between Mr Bajaj and the tenants.
The RT Act details how a residential tenancy agreement can be terminated. Section 60(1) of the RT Act provides that despite any act or law to the contrary, a residential tenancy agreement shall not terminate or be terminated except in one of the circumstances specified in s 60 of the RT Act. Relevant for present purposes is s 60(1)(a) which provides for a termination:
(a) where the lessor or tenant gives notice of termination under this Act and —
(i) the tenant delivers up vacant possession of the premises on or after the expiration of the period of notice required under this Act; or
(ii) a competent court, upon application by the lessor, terminates the agreement under section 71;
The requirements for a notice of termination are contained in s 61 of the RT Act.
Section 62 of the RT Act is concerned with notices of termination by a lessor on the ground of a breach of term of a residential tenancy agreement. Relevantly, s 62 provides:
(1) A lessor may give notice of termination of a residential tenancy agreement to the tenant upon the ground that the tenant has breached a term of the agreement and the breach has not been remedied.
(2) Where a lessor gives notice of termination under this section, the period of notice shall be not less than 7 days before the day on which the tenant is required under the notice to give the lessor possession of the premises.
(3) Where notice of termination is given under this section upon the ground of a breach of the agreement other than the agreement to pay rent, the notice is ineffectual unless a notice specifying the breach and requiring that it be remedied is given to the tenant not less than 14 days before the notice of termination is given.
Section 71 of the RT Act is concerned with an application by a lessor for termination of a residential tenancy agreement and an order for possession. Section 71 relevantly provides:
(1) Where a lessor or a tenant under a residential tenancy agreement gives notice of termination to the other under this Act except under section 70A and the tenant fails to deliver up possession of the premises on the day specified, the lessor may, subject to section 62(5)(a), within 30 days after that day, apply to a competent court for an order terminating the agreement and an order for possession of the premises.
(2) Subject to this section, a competent court shall, upon application under this section, make an order terminating the agreement and an order for possession of the premises, if it is satisfied —
(a) that notice of termination was given by the lessor or tenant to the other and that it complied with and was given in accordance with this Act; and
(b) where the notice was given by the lessor upon a particular ground prescribed by this Act, other than a notice given by a lessor on a ground referred to in section 71C or 71H, that the lessor has established that ground and, in the case of notice upon the ground of a breach by the tenant of a term of the agreement, that the breach is in all the circumstances such as to justify termination of the agreement; and
…
(5) Subject to subsection (3)(a), where the court terminates a residential tenancy agreement and makes an order for possession of the premises under this section, it shall specify the day as from which the orders shall operate, being within 7 days after the day on which the orders are made.
The RT Act also stipulates which courts have jurisdiction to hear and determine disputes arising under a residential tenancy agreement or the RT Act.
Section 15(1) of the RT Act provides that:
Where a lessor or tenant under a residential tenancy agreement or a party to an agreement for an option to enter into a residential tenancy agreement claims that a breach of the agreement has occurred or that a dispute has arisen under the agreement, the lessor or tenant may apply for relief to a competent court.
As to which court is the competent court, s 12A(1) of the RT Act provides that the Magistrates Court has exclusive jurisdiction to hear and determine a prescribed dispute. A prescribed dispute is defined in s 12 as being any matter that may be the subject of an application under the RT Act, other than an application that is, or involves, a claim for an amount over the prescribed amount. The prescribed amount is $10,000.
Section 12A(2) provides that:
A prescribed dispute is a minor case for the purposes of Part 4 of the Magistrates Court (Civil Proceedings) Act 2004 and the jurisdiction conferred by subsection (1) is to be exercised accordingly.
Part 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) details the court procedures to be followed when hearing a minor case claim. Section 27(1) provides that the primary object of the Magistrates Court, when dealing with a minor case, is to attempt to bring the parties to a settlement acceptable to all.
If an application made under the RT Act is, or involves, a claim for an amount over the prescribed amount, then pursuant to s 13(1) of the RT Act, any court that is competent to hear and determine a claim founded on contract for the amount of that claim has jurisdiction to hear and determine the application. Determining which is the competent court will involve consideration of the jurisdictional limits of each court. To the extent the competent court is the Magistrates Court (that is, the matter involves a claim for between $10,001 - $75,000) the matter is not to proceed as a minor case under the Magistrates Court (Civil Proceedings) Act 2004 (WA), unless the parties so consent in writing (s 13(2) and s 13(3) of the RT Act).
Section 14 of the RT Act provides that proceedings under the RT Act shall be heard and determined wherever practicable within 14 days after they are instituted and, where that is not practicable, as expeditiously as possible.
Section 20 of the RT Act provides that a competent court hearing any application may exercise a number of different powers. Relevant for present purposes are the powers to:[19]
(a)hear the application in such manner as it considers best suited to the purposes of the act;
(b) decline to entertain the application if it considers that the application is frivolous;
(c) adjourn the hearing to any time or place or to a time and place to be fixed; and
(d) generally give all such directions and do all such things that it thinks necessary or expedient in the proceedings.
[19] RT Act s 20(a), s 20(b), s 20(h) and s 20(m).
Section 21 of the RT Act provides that a competent court is not bound by the rules of evidence.

Issue 1 - has Mr Bajaj established an arguable case that the Magistrate made a jurisdictional error?

Claim 1 - no jurisdiction

I am not satisfied that Mr Bajaj has established an arguable case in relation to his ground of review that the Magistrate had no jurisdiction to make orders 2 - 9 in the tenants' application for the following reasons.
First, I do not accept that the Magistrate made a determination that Mr Bajaj had not breached the tenancy agreement as alleged by the tenants such the Magistrate had finally determined the application; or that an Anshun estoppel arises; or the matter was res judicata. Rather, the Magistrate did not make any ruling in this regard.
There is nothing in the wording of the orders made by the Magistrate in either matter which supports Mr Bajaj's submission. Order 1 in each matter states that the tenancy agreement was terminated on 26 July 2024 pursuant to s 60(1)(a)(i) of the RT Act, by reason of the tenants delivering vacant possession of the property to Mr Bajaj pursuant to his notice of termination. There is no reference to any ruling regarding breaches by Mr Bajaj.
Further, there is no reference in the transcript to the Magistrate making a finding that Mr Bajaj had not breached the tenancy agreement as alleged by the tenants. Rather, the Magistrate explains that she is not ordering the tenancy agreement be terminated as a result of any breach by Mr Bajaj, as the tenants had not served Mr Bajaj with a termination notice in accordance with the requirements of s 60(1)(a) of the RT Act:[20]
[20] ts 31/07/2024, 15 - 16.
HER HONOUR: What is the basis of your claim for termination?
COLE, MR: Well, basically, my understanding is that we have a contract with Mr Bajaj to deliver a property in fair working order , which - - -
HER HONOUR: Yes. But have you issued a breach notice?
COLE, MR: Several dozen.
HER HONOUR: And have you issued a termination notice for noncompliance with the breach notice?
COLE, MR: No.
HER HONOUR: Okay. That's the end of that, then.
…
HER HONOUR: … Your application for termination can't be granted because you haven't issued a notice pursuant to your breach notices.
The Magistrate goes on to explain that she will list the compensation claim for trial and make the associated programming orders so all relevant evidence can be filed, and the Magistrate can then review the tenants' claims for compensation and decide whether to accept them and if so the amount of compensation owed:[21]
HER HONOUR: … But as I see it, there's a falling-out, whatever the reason; there always is. The fixed-term tenancy, they indicate that they don't want to stay, but they don't do anything about it. They issue various breach notices, which may or may not be valid. I don't know. They say that you've damaged this, and you didn't repair that, and this has now been damaged. That's really the guts of their claim. But they don't terminate because they don't issue a notice of termination based on any of those breach notices. You have. You've brought it to an end by your notice. I'm satisfied of that.
BAJAJ, MR: My only - can I - - -
HER HONOUR: But hang on. Hang on. What's left in this is these claims for compensation - so loss of amenity and property damage. And they will all turn on the conduct - the negligent or intentional conduct of one party or the other.
BAJAJ, MR: Correct.
HER HONOUR: So I'm going to have to have a trial about that. You say you've gone and repaired something. They say you have done it in a negligent fashion, and you've caused damage to their property. I don't know what else was said.
(emphasis added)
[21] ts 31/07/2024, 36.
The Magistrate then goes on to outline the various issues and questions that may arise during the trial.[22] I am satisfied from the transcript that the Magistrate did not make any finding as to whether Mr Bajaj breached the tenancy agreement and/or whether any compensation is payable. On the contrary, the whole purpose of listing the compensation claim for trial was to enable those issues to be considered fairly and for a determination to be made at the conclusion of the trial:[23]
COLE, MR: … You 're not making judgment today, sorry .
HER HONOUR: No, I'm not making judgment.
COLE, MR: Yes.
HER HONOUR: My job today is to try and make the parties understand these are the issues that you will have to address in the -
COLE, MR: Yes.
HER HONOUR: - hearing.
[22] ts 31/07/2024, 37 - 40.
[23] ts 31/07/2024, 40.
Finally, assuming for now that in making order 1 in Mr Bajaj's matter the Magistrate accepted that the tenants breached the tenancy agreement as alleged by Mr Bajaj, this does not mean that Mr Bajaj may not also have breached the tenancy agreement. The two questions are independent and the answer to one question does not determine the answer to the other.
Secondly, in light of the above, I do not accept Mr Bajaj's submission that the Magistrate did not have jurisdiction to hear the tenants' compensation claim or to hear it as a minor case claim.
The tenants' claim for compensation for breach of the residential tenancy agreement was in the amount of $9,972.23. Therefore, the Magistrates Court had exclusive jurisdiction to hear the tenants' compensation claim pursuant to s 15 and s 12A(1) of the RT Act, and was required to deal with the application in accordance with the rules applicable to a minor case claim (s 12A(2) of the RT Act). Section 8 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) relevantly provides that the Magistrate Court's civil jurisdiction includes any jurisdiction conferred on the Magistrates Court by a written law. In the present case, that jurisdiction was conferred by the RT Act.
During his oral submissions, as I understood them, Mr Bajaj also submitted that the learned Magistrate had amended or converted the tenants' compensation claim from one under the RT Act, to an application under the Magistrates Court (Civil Proceedings) Act 2004 (WA) and programmed the compensation claim to trial in a purported exercise of jurisdiction under those acts. Mr Bajaj submitted that this was not appropriate, and the Magistrate did not have any jurisdiction under those acts.
To the extent this was Mr Bajaj's submission, I do not accept it. For the reasons outlined above, the Magistrates Court had jurisdiction to hear and determine the tenants' compensation claim under the RT Act and the Magistrate was required to apply the minor case procedure to that claim. That is what the Magistrate proceeded to do.
For completeness, order 2 describes the tenants and Mr Bajaj inconsistently. On one occasion the tenants are described as the 'applicant' and on the other as the 'respondent'. The same occurs for Mr Bajaj. The precise reason is unclear. It may be an error on the part of the Magistrates Court, or it may be related to whether the respective references are to the tenants' application or to the tenancy agreement. Either way, I do not consider these descriptors demonstrate an arguable case that the Magistrate made a jurisdictional error. What is clear from the orders and the transcript is that order 2 is directed to programming the tenants' compensation claim for trial, which for the reasons I have outlined above is a matter within the jurisdiction of the Magistrates Court.

For these reasons, Mr Bajaj has not established an arguable case that the learned Magistrate did not have jurisdiction to make orders 2 - 9 of the orders made in the tenants' application. The Magistrate had jurisdiction to hear and programme the tenants' compensation claim pursuant to s 15 and s 12A of the RT Act. Order 1 in both the tenants' application and Mr Bajaj's application does not create an Anshun estoppel; or constitute a final disposition of the tenants' compensation claim; or in any way remove or alter the Magistrate's jurisdiction.

Claim 2 - abuse of process

I am not satisfied that Mr Bajaj has established an arguable case in relation to his ground of review concerning an abuse of process for the following reasons.
First, Mr Bajaj's case is premised on his assertion that the Magistrate did not have jurisdiction to hear and programme the tenants' compensation claim as a minor case claim under the RT Act. For the reasons outlined above, I have concluded that the Magistrate did have jurisdiction to hear and programme this claim under the RT Act and was required by the RT Act to hear it in accordance with the minor case procedure.
Secondly, Mr Bajaj's case is premised on his assertion that the Magistrate did not consider whether she in fact had jurisdiction to hear and determine the tenants' compensation claim as a minor case claim. I do not accept this submission. The Magistrate spent some time in exchanges with the parties understanding the various aspects of their respective applications. The Magistrate expressly referred to the tenants' compensation claim remaining outstanding following the dismissal of the tenants' termination application, and concluded that as the tenants' claim was for $9,972.23, it fell within the minor case jurisdiction limit.[24] I consider that a fair reading of the transcript as a whole reveals that the Magistrate did consider whether the tenants' claim for compensation was a matter over which the Magistrates Court had jurisdiction, and that the matter was one falling within the minor case procedure.
[24] ts 31/07/2024, 34 - 36, 54.
Thirdly, Mr Bajaj's case is also premised on his submission that the Magistrate did not consider whether, in all the circumstances, proceeding to hear and determine the tenants' compensation claim constituted an abuse of process. I do not accept this submission. The transcript reveals that Mr Bajaj did make a submission that the compensation claim should be struck out as an abuse of process.[25] The Magistrate did not accept that submission and instead ordered that the compensation claim be listed for trial. [26] The Magistrate's final orders were made after having heard and considered the competing cases for termination of the tenancy agreement; having ordered termination pursuant to s 60(1)(a)(i) of the RT Act; having had an extensive exchange with the tenants regarding their claim for compensation and what it concerned; having attempted to resolve the matter without proceeding to trial; and after both Mr Bajaj and the tenants had indicated that they had additional documents and/or evidence that they had been unable to attach to their applications and which they wanted to rely on. The Magistrate concluded that the fairest process was to order each party file their witness outlines and bundles of documents and the compensation claim could then be the subject of trial where all issues could be determined. Accordingly, I consider on a fair reading of the transcript the Magistrate did consider Mr Bajaj's submission that a trial of the compensation claim would be an abuse of process and did not accept that submission. Mr Bajaj has not, in light of the above matters and my conclusions in relation to the jurisdiction of the Magistrate to hear and determine the claim, identified any jurisdictional errors in that decision.
[25] ts 31/07/2024, 35, 51 - 53.
[26] ts 31/07/2024, 36, 53.
In these circumstances, Mr Bajaj has not established an arguable case that the Magistrate did not consider whether the tenants' compensation claim was an abuse of process, such that any failure could be said to amount to a failure by the Magistrate to consider or exercise jurisdiction and amount to a jurisdictional error.

No arguable case

For the above reasons I am not satisfied that Mr Bajaj has demonstrated an arguable case that the Magistrate made a jurisdictional error in making order 2 - 9 in the tenants' application. I therefore decline to make a review order.

Issue 2 - has Mr Bajaj established that a stay should be ordered?

As I have concluded that Mr Bajaj has not established an arguable case that the Magistrate made a jurisdictional error, there is no basis upon which to order a stay and I decline to make such an order.

Conclusion and orders

For the reasons outlined above, I make the following orders:
1.The applicant's application for a review order and stay of orders 2 - 9 made by Magistrate Owen-Conway in matter RSTN/8786 of 2024 on 31 July 2024 (as amended), is dismissed.
2.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to Justice Seaward
11 SEPTEMBER 2024