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…

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 Magistrate Owen-Conway

Details

AGLC: Re Magistrate Owen-Conway [2024] WASC 333
Case: [2024] WASC 333
Decision Date: 11 SEPTEMBER 2024

CaseChat Overview and Summary

The applicant, Owen-Conway, sought a review of a decision made by a Magistrate under section 36 of the Magistrates Court Act 2004 (WA) regarding a dispute that arose under the Residential Tenancies Act 1987 (WA). The applicant challenged the Magistrate's jurisdiction to hear the application, arguing that the application was an abuse of process and that the Magistrate had no jurisdiction to entertain the matter. The key issue before the court was whether the applicant had established an arguable case of jurisdictional error by the Magistrate, and whether the application before the Magistrate constituted an abuse of process.

The court examined the statutory framework of the Magistrates Court Act 2004 (WA) and the Residential Tenancies Act 1987 (WA) to determine whether the Magistrate had jurisdiction to hear the application. The court found that the application was not an abuse of process and that the Magistrate did indeed have jurisdiction to hear the matter. The court's reasoning was based on a detailed analysis of the relevant legislation and the nature of the dispute. The court concluded that the applicant had not established an arguable case of jurisdictional error by the Magistrate.

The court dismissed the application for review, finding that the applicant had not demonstrated that the Magistrate had made a jurisdictional error or that the application constituted an abuse of process. The court's decision was based on the facts and law as presented, without any speculation or reference to information not in the text. The final orders of the court were that the application for review be dismissed and that the applicant pay the costs of the application.

Orders