RE MAGISTRATE P ROTH; EX PARTE YAHIYA - [2016] WASC 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MAGISTRATE P ROTH; EX PARTE YAHIYA [2016] WASC 284

CORAM: PRITCHARD J

HEARD: 30 AUGUST 2016

DELIVERED : 5 SEPTEMBER 2016

FILE NO/S: CIV 2484 of 2016

MATTER :An application under the Magistrates Court Act 2004 (WA) s 36 for a review order against P Roth, Magistrate of the Magistrates Court of Western Australia at Midland
EX PARTE
AYDIN YAHIYA
Applicant

FILE NO/S :CIV 2453 of 2016

BETWEEN :AYDIN YAHIYA
Plaintiff
AND
ST LEONARDS ESTATE PTY LTD
Defendant

Catchwords:

Application for review order under Magistrates Court Act 2004 (WA) s 36 - Court's jurisdiction under Magistrates Court Act 2004 (WA) s 36 in relation to decision made under the Residential Tenancies Act 1987 (WA) - Whether arguable case of denial of natural justice - Whether arguable case for order made without jurisdiction - Test for making stay order - Whether special circumstances - Whether just and reasonable to order a stay

Legislation:

Magistrates Court Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA), O 56A

Result:

Review order made
Stay order made

Category: B

Representation:

CIV 2484 of 2016

Counsel:

Applicant: Mr M Khosa

Solicitors:

Applicant: Law on Newcastle

CIV 2453 of 2016

Counsel:

Plaintiff: Mr M Khosa
Defendant: Mr D Barker

Solicitors:

Plaintiff: Law on Newcastle
Defendant: Chalmers Legal Studio

Cases referred to in judgment:

Coppleson v Federal Commissioner of Taxation (1981) 52 FLR 95
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471
Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Laidlaw v Hillier Hewitt Elsley Pty Ltd [2009] NSWCA 44
L'Estrange v F Graucob Ltd [1934] 2 KB 394
Pickersgill v Tsoukalas [2009] SASC 357
Raftland Pty Ltd as Trustee of Raftland Trust v Commissioner of Taxation [2008] HCA 21; (2008) 238 CLR 516
Rayney v AW [2009] WASCA 203
Re Greg Cockram Magistrate of the Magistrates Court of Western Australia at Perth; Ex parte Miller [2009] WASC 350
Re Magistrate D Temby; Ex parte Stanton[2015] WASC 357
Re Magistrate R Bromfield; Ex parte Caratti [2016] WASC 147
Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149
Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360
Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449
Snook v Lawrence [2007] WASC 111
Stampalia v Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7
Varma v Varma [2010] NSWSC 786
Woolworths Ltd v Kelly [1991] 22 NSWLR 189
Zucal v Harper (2005) 29 WAR 563

PRITCHARD J: On 10 June 2016, a magistrate in the Magistrates Court at Midland made an order that Ms Aydin…

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: [2016] WASC 284
Decision Date: 5 SEPTEMBER 2016

CaseChat Overview and Summary

The case of Re Magistrate P Roth; Ex parte Yahiya concerns an application for review under section 36 of the Magistrates Court Act 2004 (WA). The applicant, Yahiya, sought review of an order made by Magistrate P Roth under the Residential Tenancies Act 1987 (WA). The central issue was whether the Court had the jurisdiction to review the magistrate's decision, and if so, whether the decision could be set aside based on an alleged denial of natural justice or absence of jurisdiction. The court needed to determine whether there was an arguable case that the order was made without jurisdiction or on grounds that would justify setting aside the order under judicial review principles.

The court examined the statutory framework provided by the Magistrates Court Act 2004 (WA) and the Residential Tenancies Act 1987 (WA). It noted that while the Act provides a mechanism for judicial review of magistrates' decisions, this power is limited when applied to decisions made under the RT Act. The court considered the threshold for an arguable case, which must be met for a review order to be granted. It also assessed whether the alleged denial of natural justice or absence of jurisdiction constituted sufficient grounds for setting aside the order. The court concluded that there was an arguable case that the magistrate's decision was made without jurisdiction, as it appeared that the magistrate failed to consider a relevant statutory provision.

The court found that it had jurisdiction to review the decision under section 36 of the Magistrates Court Act 2004 (WA). It determined that the application met the threshold for an arguable case, warranting a review. The alleged procedural error, if proven, would constitute a denial of natural justice and an absence of jurisdiction. The court found it just and reasonable to grant a stay of the magistrate's decision pending the outcome of the review, given the arguable case presented. The court also considered the special circumstances and the need to ensure that justice was served.

The final orders of the court included granting a review order, staying the operation of the magistrate's decision, and setting a date for a hearing to determine whether the order should be set aside. The court emphasised the importance of ensuring that any procedural errors were rectified and that justice was served in the context of the residential tenancy dispute.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court's jurisdiction under s 36 of the MC Act in relation to decisions made under the RT Act A person who is aggrieved by an order that has been made by a magistrate may apply to this Court, pursuant to s 36(1) of the MC Act, for an order (called a review order) that requires the magistrate, and any person who will be affected by the order, to satisfy this Court at a hearing that the order should not be set aside.[39] On such an application, the Court may make any review order that is just, whether or not it has been applied for.[40] At the hearing required by a review order, this Court has power to order that the order the subject of the review be set aside, and to grant any relief or remedy that could have been granted by way of a writ of certiorari.[41][39] Magistrates Court Act 2004 (WA) s 36(1).[40] Magistrates Court Act 2004 (WA) s 36(3).[41] Magistrates Court Act 2004 (WA) s 36(4). The grounds on which a person may seek a review order directed to setting aside an order that has been made by a Magistrate are that the order was made without jurisdiction or power, or on any ground that might have justified an order of certiorari.[42][42] Magistrates Court Act 2004 (WA) s 36(1)(c). There is thus a two‑stage process for a review of an order that has been made by a magistrate pursuant to s 36 of the MC Act.[43] At the first stage, a review order can only be made if the threshold for an error falling within one of the specified grounds is satisfied. The issue of the review order triggers the requirement for a hearing at which the Court officer (that is, the magistrate) and any party affected, must satisfy this Court that the order under review should not be set aside. At the second stage, which is the hearing required by the review order, this Court may set aside the order or grant relief analogous to relief by way of a writ of certiorari, if it is satisfied that one or more of those grounds for review has been established.[44][43] Cf Re Magistrate R Bromfield; Ex parte Caratti [2016] WASC 147 [17] (Le Miere J).[44] Rayney v AW [2009] WASCA 203 [28], [32], [34] (McLure JA, Buss & Newnes JJA agreeing); Re Magistrate R Bromfield; Ex parte Caratti [2016] WASC 147 [17] (Le Miere J). As the Court of Appeal has observed, the power in s 36 of the Act is a judicial review power.[45] The purpose of s 36 is to replace, and to provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the Magistrates Court.[46] The intention behind s 36 is to permit judicial review in those situations in which the prerogative writs would have been available, and to free the courts from the technical requirements associated with the prerogative writs.[47] No appeal lies in respect of orders made by the Magistrates Court pursuant to the RT Act.[48] Such orders may be the subject of a review pursuant to s 36 of the MC Act. However, the application of s 36 of the MC Act to orders made under the RT Act is modified, in that the grounds on which a review may be sought are limited to the grounds that the Magistrates Court has no jurisdiction conferred by or under the RT Act, or that a party to the proceedings before the Magistrates Court was denied natural justice.[49]

Ratio Decidendi

Legal Principle Established

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