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 Yahiya vacate a property in Dayton at which she has been living since 2005 (the Property). That order was made in the exercise of the Magistrates Court's power under s 71 of the Residential Tenancies Act 1987 (WA) (the RT Act). Ms Yahiya made an application to set aside that order.[1] That application was heard on 21 July 2016.[2] The learned Magistrate refused to set aside the order to vacate the Property, but made an order extending the time in which Ms Yahiya was to vacate the Property, until 26 August 2016[3] (Order).
[1] Affidavit of Aydin Yahiya sworn 26 August 2016 [33].
[2] Affidavit of Aydin Yahiya sworn 26 August 2016 [54] ‑ [55].
[3] Affidavit of Aydin Yahiya sworn 26 August 2016, Annexure AY11.
Ms Yahiya has commenced proceedings in this Court for a review of the Order (the review application) pursuant to s 36 of the Magistrates Court Act 2004 (WA) (the MC Act). She also seeks a stay of the Order, pending the hearing of that review (the stay application).
For the reasons outlined below, a review order should be made pursuant to s 36(1) of the MC Act, and the Order should be stayed, pending the outcome of the hearing of the review order.
In these reasons for decision, I deal with the following matters:
1.The factual context;
2.The Court's jurisdiction under s 36 of the MC Act in relation to decisions made under the RT Act;
3.Why the review order should be made;
4.The Court's power to grant a stay of a decision the subject of a review order; and
5.Why a stay of the Order should be granted.

The factual context

In support of the review application and the stay application, counsel for Ms Yahiya read three affidavits sworn by his client (on 24, 26 and 29 August 2016). That affidavit evidence was not comprehensive and in some respects was far from clear. Perhaps that was due, in part, to the urgency with which the applications were made. In any event, some of the factual background was explained by counsel for the parties in their oral and written submissions.
Counsel for the defendant read one affidavit in opposition to the grant of the stay application. That affidavit was sworn by Ms Lauren Chalmers, a solicitor. The extent to which the defendant disputes the evidence set out in Ms Yahiya's affidavits is not yet clear.
The facts set out below are drawn from the affidavit evidence and from the submissions of counsel. I set out these facts solely for the purpose of explaining the decision I have reached, and do not make any factual findings at this stage.

The parties

The defendant is a company which is engaged in the development of land at Dayton for residential subdivision. It owns land which is being progressively subdivided in an area known as the St Leonards Estate (the Estate). The Property is located within the Estate. The defendant is the registered proprietor of the Property.
The original developer of the Estate was Sagecorp Properties Pty Ltd. Sagecorp subsequently sold its interest in the Estate to West Swan Estate Pty Ltd, which was the previous name of the defendant.
It appears that the defendant contracted the subdivision of the land to the Little Group, and the Little Group subcontracted the project management of the subdivision of the Estate to a company called Progress Developments.
Since 2005, and save for a three month period in 2008,[4] Ms Yahiya has worked for the developers of the Estate, although it is not clear whether she is employed, or engaged in some other manner, by the defendant, the Little Group, or Progress Developments. Ms Yahiya deposes that she performs the duties of a property manager, caretaker, buyer's agent, site office manager and other roles related to the development of the Estate.[5]

How Ms Yahiya came to live at the Property

[4] Affidavit of Aydin Yahiya sworn 24 August 2016 [26] ‑ [27].

[5] Affidavit of Aydin Yahiya sworn 24 August 2016 [17].

Ms Yahiya claims that she has lived at the Property since 2005, pursuant to an agreement she reached with a director of Sagecorp, Mr Di Lallo, or in accordance with a representation that Mr Di Lallo made, in 2005.
Ms Yahiya's evidence was that:[6]
[T]he rationale for that move [to the Property] was that I was at that time working in that area from about 7 am to 10.30 pm on most days.
Accordingly, Mr Di Lallo suggest that I move there on a permanent basis on the promise that I would not have to pay rent, I would be allowed to stay there until the development was complete and the last block was sold and that I could purchase the property if I chose to do so.
…
As part of the agreement with the developers, I was on call 24 hours a day, 7 days a week to attend to anything that happened at the development.
[6] Affidavit of Aydin Yahiya sworn 26 August 2016 [8] ‑ [9], [13].
Ms Yahiya also provided a copy of a statutory declaration which was apparently made by Mr Di Lallo on 1 July 2015, in which he deposed:[7]
... I initially encouraged Aydin to move out to [the Property] to have a presence onsite.
Aydin was reluctant to move just after having settled into a home in Mosman Park.
I assured Aydin that she would not have to move until the development was completed and sold. Aydin at that time was also to be the selling agent of the developed lots.
It was also loosely agreed that Aydin could purchase [the Property] once subdivided at a reasonable commercial englobo rate.
To the best of my recollection, it was on these ground that Aydin agreed to move to West Swan and for this reason we did not require Aydin to pay rent or enter into a lease agreement.[8]
[7] Affidavit of Aydin Yahiya sworn 29 August 2016, Annexure AY12.
[8] Affidavit of Aydin Yahiya sworn 29 August 2016, Annexure AY12.
Ms Yahiya said that she accepted this offer in around May 2005, gave up a house in Mosman Park that she had been offered by Homeswest, and moved her family to the Property instead.[9] She deposed:[10]
My decision was based on the fact that I was continuously assured that I would never have to move again and that the property was mine for as long as the development lasted or if I purchased the property.
[9] Affidavit of Aydin Yahiya sworn 24 August 2016 [14], [15].
[10] Affidavit of Aydin Yahiya sworn 26 August 2016 [11].
Ms Yahiya's evidence was that she has resided at the Property, in accordance with this agreement, or representation, since 2005. Her case is that the agreement, or Mr Di Lallo's representation, has been continued, or honoured, by the defendant since 2005. Her evidence was:[11]
As the developers changed hands and the ultimate owner of the development is now the defendant, the arrangement was always maintained.
That arrangement was that I would not pay rent, I would pay my utilities and be allowed to stay until the development was completed or I bought the property.
[11] Affidavit of Aydin Yahiya sworn 26 August 2016 [15] ‑ [16].
Counsel for Ms Yahiya submitted that the defendant's willingness to continue to permit Ms Yahiya to remain at the Property on the same basis as Mr Di Lallo initially agreed, has been apparent from the fact that the defendant has never demanded rent from her in relation to the Property.[12]

Execution of a lease

[12] ts 11.

In November 2009, Ms Yahiya and West Swan Estate Pty Ltd executed a document entitled 'Standard Residential Property Lease'[13] (the Lease).
[13] Affidavit of Aydin Yahiya sworn 29 August 2016, Annexure AY16.
The Lease was signed by Ms Yahiya, in the presence of a witness. It was signed on behalf of West Swan Estate Pty Ltd by Mr Christopher Lewis. It appears that Mr Lewis is a director of Progress Developments, the project manager for the subdivision. However, counsel for the defendant accepted that when he executed the Lease, Mr Lewis was acting as an agent of West Swan Estate Pty Ltd (now the defendant).[14]

The terms of the Lease

[14] ts 30.

The Lease stated that it would operate for a fixed term of 24 months, commencing on 12 November 2009. The rent was specified as $1 per annum. The Lease further provided that if the tenancy reverted to a periodic tenancy at the end of the fixed term, the rent would be $1 per annum. Ms Yahiya says that she has never paid that (or any) rent, and no rent has ever been demanded from her in respect of the Property.[15]
[15] Affidavit of Aydin Yahiya sworn 24 August 2016 [24].
The Lease contained the following special conditions:[16]
The tenant … is responsible to pay all utilities relating to consumption of water, power, phone etc.
The tenant indemnifies the owner against any claim arising out of their tenancy at the Premises.
The tenant is responsible to attend to all maintenance requirements associated with the Premises in recognition of the low rent.
Should the owner determine (due to market demand) that the Property is to be developed after the initial 12 months of tenancy, the owner shall give the tenant 3 months notice to provide vacant possession and the tenant agrees to vacate the Premises accordingly.
[16] Affidavit of Aydin Yahiya sworn 29 August 2016, Annexure AY16, 22.
Ms Yahiya's evidence in relation to the circumstances in which the Lease came to be executed is of significance for the review application, so I set that evidence out in full:[17]
In or around November 2009, Chris Lewis, the Project Manager of West Swan Estate Pty Ltd (the developers at the time) required me to sign a residential lease agreement.
When I queried the residential lease, I recollect that Chris Lewis said words to the effect of, "the document has to be signed. It's purely for insurance purposes. What is written in there means nothing. Nothing's changed."
[17] Affidavit of Aydin Yahiya sworn 24 August 2016 [21] ‑ [22].
Ms Yahiya initially refused to sign the lease, but eventually did sign it:[18]
Then towards the end of 2009, in or around November, I finally relented.
When I was about to sign the lease document in front of my witness … I remember that she told me not to sign the lease document because of the terms contained in the lease.
I remember that I said to her words to the effect that, "the document was only for insurance purposes and that I had been assured that nothing changed."
To finally convince her, I remember that I called [Mr Lewis'] office and spoke to either Mr Accott's or Mr Lewis' secretary. I cannot remember which.
I was again given the same assurances that the lease was nothing more than a formality. [The witness] heard that conversation as I held the telephone receiver such that [she] could hear the conversation.

Evidence as to the conduct of the defendant after the signing of the Lease

[18] Affidavit of Aydin Yahiya sworn 26 August 2016 [25] ‑ [29].

Ms Yahiya deposed that, after she signed the Lease, 'the existing arrangement prior to the signing of the lease continued', and that, after the term of the Lease expired, 'I continued staying at the property. Again there was not changed in the existing arrangement (sic).'[19]
[19] Affidavit of Aydin Yahiya sworn 26 August 2016 [30] ‑ [31].
As recently as 19 July 2016, Progress Developments sought reimbursement from Ms Yahiya of water service (as well as usage) charges paid by the defendant in respect of the Property.[20] On 5 August 2016, Progress Developments also sought that Ms Yahiya reimburse the defendant for rates charged by the City of Swan in respect of the Property.[21]

Offers to purchase the Property

[20] Affidavit of Aydin Yahiya sworn 29 August 2016, Annexure AY15.

[21] Affidavit of Aydin Yahiya sworn 29 August 2016, Annexure AY18.

In addition, Ms Yahiya deposed that she has spent a considerable sum on repairs and maintenance of the Property, much of which appears to have been spent from about 2012 or 2013. Ms Yahiya deposed that:[22]
[F]rom 2005 until in or around May 2016 in reliance upon the agreement I have spent approximately $50,000 on substantial repairs and improvements to the Premises.
From 2005, in reliance upon the agreement, I have paid the water usage and water service charges for the Premises ...
[22] Affidavit of Aydin Yahiya sworn 29 August 2016 [18].
Ms Yahiya also deposed that in around 2012 or 2013, the house at the Property required urgent repairs, particularly to the roof. She deposed:[23]
Before I incurred any expenses, I wanted to confirm that the contract to purchase the Premises would be finalised. I asked Chris Lewis to come to the Premises to discuss the situation and re-confirm that arrangement.
When Chris Lewis attended the premises, I showed Chris Lewis the repairs that needed to be done. I recollect that he said words to the effect of "go ahead and fix the roof because the property is yours anyway, it's just a matter of paperwork."
[23] Affidavit of Aydin Yahiya sworn 29 August 2016 [28] ‑ [29].
In a witness statement which it appears Ms Yahiya prepared for use in the Magistrates Court, Ms Yahiya stated that after Mr Lewis gave her that assurance:[24]
I went ahead and built a new pergola and started to fix the house … I have spent well over $40,000 … since around 2012, with the most recent being a new bore pump and the septics. I have re done the barns floors, put shed doors on the shed, put up perimeter wire fencing down the front and side of my house, roof restoration, painted inside and out, floor boards inside as the carpet was rotten from the leaks in the roof, dishwasher, new hot water system, new piping in kitchen, to name a few things.
[24] Affidavit of Aydin Yahiya sworn 26 August 2016, Annexure AY19, 36.
Ms Yahiya deposed that from about 2008 she made a number of offers to purchase the property, but that those offers were ignored for years.[25] There appears, however, to have been some discussion about the precise area of land which might be sold to Ms Yahiya.[26] Ms Yahiya attached to her most recent affidavit, sworn 29 August 2016, copies of email correspondence from Mr Lewis, or other persons, apparently acting on behalf of the defendant, in relation to 'Aydin's lot'. This correspondence appears to have canvassed various options for selling part of the Property to Ms Yahiya and subdividing the surrounding lots.[27]
[25] Affidavit of Aydin Yahiya sworn 26 August 2016 [18], [19].
[26] Affidavit of Aydin Yahiya sworn 26 August 2016 [32]; Affidavit of Aydin Yahiya sworn 29 August 2016, Annexure AY13.
[27] Affidavit of Aydin Yahiya sworn 29 August 2016, Annexure AY13.
In any event, in October 2014 Mr Lewis 'sent [Ms Yahiya] a signed offer based on 2,495 square metres for a purchase price of $795,000 with an expiry of 5 days.'[28]
[28] Affidavit of Aydin Yahiya sworn 26 August 2016 [33].
Regrettably, Ms Yahiya did not accept that offer within the time specified for acceptance.[29] Counsel for the defendant submitted that in fact Ms Yahiya tried to accept the offer about three months later.[30] However, counsel for the defendant submitted that by that time the defendant had expended funds towards the subdivision of the Property, and was not willing to sell the Property for the same price.[31] Even more regrettable is that the parties apparently did not pursue negotiations, or were not able to reach agreement, for the sale of the Property at that point in time or since.

Conduct which the defendant says is consistent with Ms Yahiya accepting the validity of the Lease as a lease under the RT Act

[29] ts 5.

[30] ts 37.

[31] ts 37 ‑ 40.

Annexed to the affidavit of Ms Chalmers was a copy of a caveat lodged by Ms Yahiya over the Property in June 2015. In that caveat, Ms Yahiya described her estate or interest in the land as 'fee simple as lessee', 'pursuant to lessee of the property between the landlords and lessee and the registered proprietor. Pursuant also to a statutory declaration attached dated 24 June 2015.'[32] The statutory declaration attached to the caveat was made by Ms Yahiya which stated that:[33]
I am the lessee of the [Property]. I have been living at [the Property] rent free since 2005 and have the right to remain until the last block is sold in the estate (St Leonards Estate). See attachment 'A', 'B'.
[32] Affidavit of Lauren Chalmers sworn 29 August 2016, Annexure LC1.
[33] Affidavit of Lauren Chalmers sworn 29 August 2016, Annexure LC1.
Attachment A to that statutory declaration was a further document apparently signed by Mr Di Lallo, in which he confirms the terms of the agreement outlined above at [14].
Counsel for the defendant placed some emphasis on the caveat and statutory declaration as an acknowledgement by Ms Yahiya that she occupied the Property as a lessee, presumably pursuant to the terms of the Lease. However, Ms Yahiya's claim to be a 'lessee' might also be consistent with a claim that her counsel says she is considering, namely, that she has an equitable leasehold interest in the property as a result of a claim based on proprietary estoppel. It appears that that claim would be based on the representation made by Mr Di Lallo, and honoured, or effectively continued, by the defendant, including by Mr Lewis on the defendant's behalf, on which Ms Yahiya says she has relied to her detriment. It is not necessary or appropriate to say more about that possible claim at this stage.

The defendant commences proceedings in the Magistrates Court

The defendant says that the Lease was a residential tenancy agreement for the purposes of the RT Act. Its case is that once the fixed term of the Lease expired, it continued to apply as a periodic lease on the same terms,[34] with the result that thereafter it was entitled to terminate the lease in accordance with the provisions of the RT Act.[35]
[34] See Residential Tenancies Act 1987 (WA) s 76C(2).
[35] See Residential Tenancies Act 1987 (WA) s 64.
In September 2015, the defendant commenced proceedings in the Magistrates Court to evict Ms Yahiya from the Property. Initial attempts to do so were dismissed by the Magistrates Court in September 2015 and January 2016.[36]
[36] Affidavit of Aydin Yahiya sworn 26 August 2016, Annexures AY5, AY6.
However, a further notice of termination of the Lease was served on Ms Yahiya later in January 2016. When she failed to vacate the Property, the defendant sought an order from the Magistrates Court compelling her to vacate the Property. Regrettably, copies of the applications filed and transcript from all of the proceedings before the Magistrates Court were not in evidence. However, counsel for the defendant (who appeared in the Magistrates Court) made submissions which explained the course of the proceedings in the Magistrates Court.
On 10 June 2016, the Magistrates Court made an order that Ms Yahiya vacate the Property by 29 July 2016.[37] Ms Yahiya was not present on that occasion, and the solicitors who then represented her were not present either (although it appears that they were given a hearing by telephone[38]).
[37] Affidavit of Aydin Yahiya sworn 26 August 2016, Annexure AY9.
[38] Affidavit of Aydin Yahiya sworn 26 August 2016, Annexure AY9.
As I have already mentioned above at [1], Ms Yahiya's application to set aside that order was heard on 21 July 2016, at which time the Order the subject of the review application was made.

The proceedings commenced in this Court

On 24 August 2016, Ms Yahiya's solicitors filed a Notice of Originating Motion in this Court, seeking injunctive relief in the form of an order that the timeframe in which the Order required Ms Yahiya to vacate 'be extended for a further 4 weeks'. The ground for that application was that an extension of time would give the parties 'sufficient time to confer in order to resolve the issues between them and in the event that such conferral is unsuccessful, then the Plaintiff to commence such action as it may have available to it'. That Notice of Originating Motion was listed for hearing, on an urgent basis, on 25 August 2016. At that stage, it appeared that Ms Yahiya wished to consider a claim against the defendant on the basis of a claim of proprietary estoppel, but that she also wished to challenge the Order, as that was the immediate basis on which she was compelled to vacate the Property on 26 August 2016. However, it was clear that the matter was not ready to proceed at that stage. Accordingly, I adjourned the matter to the following day, 26 August 2016.
On 26 August 2016, Ms Yahiya's solicitor was still not in a position to proceed. The basis upon which Ms Yahiya sought relief was still unclear at that stage. Accordingly, I made orders for Ms Yahiya to file any amended Notice of Originating Motion for injunctive or other relief and any application for review under s 36 of the MC Act by close of business on 29 August 2016, and adjourned the hearing to 30 August 2016. (The defendant undertook not to take any further action to enforce the Order until 30 August 2016.)
By the time of the hearing on 30 August 2016, Ms Yahiya had filed an application for a review order pursuant to s 36 of the MC Act in respect of the Order (that is, the review application), and an amended Notice of Originating Motion, in which she sought a stay of the Order pending the hearing of the review order (that is, the stay application). Ordinarily, an application for a stay of an order, pending its review under the MC Act, would be made in the same proceeding as the application for the review order itself. However, in the present case, two separate proceedings have been commenced in consequence of the way that proceedings were first commenced in this Court.

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]

Review of an order of the Magistrates Court made under the RT Act

[45] Rayney v AW [2009] WASCA 203 [27] (McLure JA, Buss & Newnes JJA agreeing).

[46] Rayney v AW [2009] WASCA 203 [27] (McLure JA, Buss & Newnes JJA agreeing).

[47] Rayney v AW [2009] WASCA 203 [27] (McLure JA, Buss & Newnes JJA agreeing).

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]

The test for the making of a review order

[48] Residential Tenancies Act 1997 (WA) s 26(1).

[49] Residential Tenancies Act 1997 (WA) s 26(2).

Section 36 of the MC Act does not set out the test the Court should apply to determine whether a review order should be made. However, it is now well established that the test to be applied at the threshold stage of seeking a review order is analogous with the test which used to apply in relation to an application for an order nisi.[50] As a result, it is necessary for an applicant for a review order to establish, at least, an arguable case that an error of the type capable of constituting a ground of review for the purposes of s 36 (read in conjunction with s 26 of the RT Act in this case) was made. In addition, some members of this Court have taken the view that, just as in the case of an application for an order nisi, a review order should not be granted unless the applicant has satisfied the Court that his or her case has reasonable prospects of success.[51] I will apply both criteria here.
[50] Re Magistrate D Temby; Ex parte Stanton[2015] WASC 357 [34] ‑ [35] (Beech J); Re Magistrate R Bromfield; Ex parte Caratti [2016] WASC 147 [16] (Le Miere J); Snook v Lawrence [2007] WASC 111.
[51] Re Magistrate D Temby; Ex parte Stanton[2015] WASC 357 [36] (Beech J); Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 [61] (Corboy J).

Why the review order should be made

Ms Yahiya's grounds of review are that the learned Magistrate denied her natural justice at the hearing on 21 July 2016, and that the Magistrates Court did not have jurisdiction to make the Order.

The alleged denial of natural justice

Ms Yahiya contends that, at the hearing on 21 July 2016, she was denied natural justice.
The principles of natural justice require that a decision‑maker give a person, whose interests are liable to be affected by a decision, the opportunity to be heard in respect of that decision.[52] The question whether natural justice has been denied will depend on whether the procedures adopted by the decision‑maker in relation to the opportunity to be heard were fair. The term 'procedural fairness' has thus been used to describe 'the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case'.[53] The requirements of procedural fairness are essentially practical and will depend upon the legislative framework in all the circumstances of the particular case.[54]
[52] Kioa v West [1985] HCA 81; (1985) 159 CLR 550.
[53] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585 (Mason J).
[54] Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [60]; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 [306] (Kiefel J).
The RT Act makes clear that the Court hearing an application under the RT Act may 'hear the application in such manner as it considers best suited to the purposes of this Act',[55] may 'do all such things that it thinks necessary or expedient in the proceedings,'[56] and is not bound by the rules of evidence, but 'may inform itself upon any matter relating to the proceedings in such manner as it thinks fit.'[57] It is also important to bear in mind that the Magistrates Court is a very busy jurisdiction and its jurisdiction under the RT Act is a particularly busy aspect of its overall jurisdiction. The Magistrates Court must therefore deal with the cases before it as expeditiously and efficiently as possible, and with a degree of informality appropriate to that objective.
[55] Residential Tenancies Act 1997 (WA) s 20(a).
[56] Residential Tenancies Act 1997 (WA) s 20(m).
[57] Residential Tenancies Act 1997 (WA) s 21.
Ms Yahiya's affidavits did not annex all of the documentation in relation to the application made in the Magistrates Court by the defendant for an order that she vacate the Property pursuant to s 71 of the RT Act. Nor did her affidavits annex a copy of any material she filed in support of her application to set aside the order made by the learned Magistrate on 10 June 2016. However, a copy of the transcript of the proceedings on 21 July 2016 was in evidence.
Ms Yahiya submitted that she was denied natural justice at the hearing on 21 July 2016 because the learned Magistrate 'refused to hear what [she] had to say by way of explanation and dismissed [her] application'.[58] Having reviewed the transcript of that hearing, I am not persuaded that Ms Yahiya has an arguable case that she was denied natural justice.
[58] Affidavit of Adin Yahiya sworn 26 August 2016 [57].
The learned Magistrate indicated that he had read an affidavit filed by Ms Yahiya in support of her application to set aside the order made on 10 June 2016.[59] In considering whether the order made on 10 June 2016 should be set aside, the learned Magistrate considered whether the requirements of s 71 of the RT Act had been met. The learned Magistrate asked Ms Yahiya why it was that she said that the notice of the termination of the lease was ineffective. Ms Yahiya submitted that she 'wasn't a tenant', and that she was living at the property as 'a caretaker'.[60] However, the learned Magistrate did not accept Ms Yahiya's submission that she was not a tenant for the purposes of the operation of the RT Act. In reaching that conclusion the learned Magistrate clearly considered Ms Yahiya's submissions, but nevertheless concluded that the RT Act applied and that the defendant was entitled to vacant possession of the Property. His Honour concluded that the question of whether the defendant had misrepresented the situation or was now attempting to avoid the terms of an agreement between it and Ms Yahiya were matters which had to be resolved in a different jurisdiction.[61]
[59] ts 2.
[60] Affidavit of Aydin Yahiya sworn 26 August 2016, Annexure AY10, 19.
[61] Affidavit of Aydin Yahiya sworn 26 August 2016, Annexure AY10, 20 ‑ 21.
Although the learned Magistrate dealt with Ms Yahiya's submissions relatively briefly, that does not mean that she was denied a fair hearing. In my view, Ms Yahiya has not made out an arguable case that she was denied natural justice in relation to the Order.

Whether the Lease is a residential tenancy agreement for the purposes of the RT Act

Counsel for Ms Yahiya submitted that the Magistrates Court had no jurisdiction to make the Order because the Lease did not constitute a residential tenancy agreement for the purposes of the RT Act. There is no doubt that the jurisdiction of the learned Magistrate to make an order that Ms Yahiya vacate the Property, pursuant to s 71 of the RT Act, and to consider whether that order should be set aside or varied (pursuant to s 20(g) of the RT Act), depended on the existence of a 'residential tenancy agreement'. A 'residential tenancy agreement' is defined in the RT Act as:[62]
[A]ny agreement, whether or not in writing and whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence.
[62] Residential Tenancies Act 1997 (WA) s 3.
As I understood his submissions, counsel for Ms Yahiya advanced two arguments for why the Lease does not fall within the scope of that definition. First, he submitted that the Lease did not grant a right to occupy the property 'for valuable consideration'.[63] Secondly, he submitted that the Lease was not a genuine agreement, in that it was not, in fact, intended by the parties that the terms of the Lease would govern the occupation of the property by Ms Yahiya.[64]

Whether the Lease granted a right to occupy 'for valuable consideration'

[63] ts 3.

[64] ts 16 ‑ 17.

Counsel for Ms Yahiya submitted that the Lease did not grant a right to occupy for 'valuable consideration' because the rent (of $1 per annum) did not constitute valuable consideration, or alternatively, because no rent was, in fact, ever demanded from Ms Yahiya.
In my view, it is not arguable that the Magistrates Court did not have jurisdiction on this basis. The Lease provided that Ms Yahiya was to pay rent. Although the rent was the nominal sum of $1 per annum, it has been recognised that nominal consideration (a 'single peppercorn') may constitute valuable consideration to support a simple contract.[65] There are sound reasons why the courts do not weigh the adequacy of consideration in judging whether a particular bargain amounts to a legally enforceable contract.[66]
[65] Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298, 307 (Handley JA); Varma v Varma [2010] NSWSC 786 [462].
[66] Woolworths Ltd v Kelly [1991] 22 NSWLR 189, 193 ‑ 194 (Kirby P).
Furthermore, the term of the Lease which provided for rent of $1 per annum cannot be viewed in isolation from the balance of the terms of the Lease. In particular, that term cannot be viewed in isolation from the special conditions, including that term which specified that Ms Yahiya was responsible to attend to all maintenance required in relation to the premises 'in recognition of the low rent'.[67]
[67] Affidavit of Aydin Yahiya sworn 29 August 2016 Annexure AY16, 22.
Counsel for Ms Yahiya submitted that that special condition could not be relied upon because it was void. In his submission, it constituted an invalid attempt to contract out of the provisions of the RT Act. Section 42 of the RT Act provides that the lessor must maintain the premises in a reasonable state of repair having regard to the age, character and prospective life of the premises.[68] At the time when the lease was entered into, s 82(3) of the RT Act permitted a residential tenancy agreement to contain a provision by which s 42 was excluded, modified or restricted, if the residential tenancy agreement was in writing and was signed by the owner and the tenant. Counsel for Ms Yahiya submitted that in order to exclude, modify or restrict the operation of s 42 of the RT Act, it was necessary for the Lease to have expressly excluded s 42, and that it was not sufficient that the Lease simply included a term which, on its face, was inconsistent with the operation of s 42 of the RT Act.[69] It is not necessary to resolve that question of construction for present purposes for two reasons. First, quite apart from any requirement to pay for the maintenance of the Property, the Lease contained a term for the payment of an amount of money as rent, which constituted valuable consideration. Secondly, in my view, it is not open to Ms Yahiya to rely on the application of the RT Act to support an argument that a particular term of the Lease is void, while at the same time submitting that the RT Act does not apply to the Lease at all.
[68] Residential Tenancies Act 1987 (WA) s 42(1)(b) (as in force at the time of the lease).
[69] ts 15 ‑ 16.
Counsel for Ms Yahiya also submitted that, as no rent was ever demanded from Ms Yahiya, the Lease could not be described as granting a right to occupy for valuable consideration. In my view, that contention is not arguable. An express term of the Lease requires that Ms Yahiya pay rent of $1 per annum. The fact that the defendant has not demanded that rent from Ms Yahiya cannot alter the characterisation of the Lease as an agreement pursuant to which consideration (in the form of money) was to be paid by Ms Yahiya in return for the right to occupy the Property.
However, the fact that no rent was ever demanded from Ms Yahiya in respect of her occupation of the Property is relevant to the question whether the Lease was intended by the parties to operate as a genuine residential tenancy agreement.

Whether the Lease was a genuine residential tenancy agreement or merely a sham

Counsel for Ms Yahiya contended that the Lease could not be regarded as a genuine residential tenancy agreement. Although the argument was not, with respect, adequately developed by counsel for Ms Yahiya, the thrust of the contention appeared to be that entry into the Lease was not intended by the parties to bring about a genuine residential tenancy agreement for the purposes of the RT Act. In other words, it appears to be contended that the Lease constitutes a 'sham' and that it was not intended to have any legal effect on the relations between Ms Yahiya and the defendant with respect to occupation of the Property.

The starting point in considering this contention is the fact that the Lease purports to be an agreement, it is in writing, and it is signed by both Ms Yahiya and Mr Lewis (as an officer or agent of the defendant). A fundamental principle of the law of contract is that absent some vitiating element (such as misrepresentation, duress, mistake, or a claim for equitable or statutory relief), a person who signs a document which is intended to effect legal relations is bound by its terms.[70] For that reason, where parties express their rights and obligations in what appear to be binding legal instruments, courts will ordinarily accord such instruments their purported legal effect, according to their tenor, even if the transactions described do not appear to 'have been commercially sensible'.[71]
[70] Pickersgill v Tsoukalas [2009] SASC 357 [35]; L'Estrange v F Graucob Ltd [1934] 2 KB 394, 403 ‑ 404.
[71] Raftland Pty Ltd as Trustee of Raftland Trust v Commissioner of Taxation [2008] HCA 21; (2008) 238 CLR 516 [133] (Kirby J), citing Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 [53] (Gleeson CJ, McHugh, Kirby, Hayne & Callinan JJ).
However, that principle does not apply when the parties intend that the document will be a 'sham' ‑ that is, that the document should not have any legal effect.[72] In Equuscorp,[73] the High Court described a 'sham' transaction in the following way:
"Sham" is an expression which has a well-understood legal meaning. It refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences.
[72] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 [46] (Gleeson CJ, McHugh, Kirby, Hayne & Callinan JJ).
[73] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 [46] (Gleeson CJ, McHugh, Kirby, Hayne & Callinan JJ). See also, Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449, 453 (Lockhart J).
In Sharrment,[74] Lockhart J observed that:
A "sham" is therefore, for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive.
[74] Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449, 454 (Lockhart J).
Lockhart J referred, by way of example, to a sham transaction in relation to property, which would arise where the parties to the purported agreement 'do not intend to give effect to the transaction, it being agreed between them that there will be no change in the legal and beneficial ownership of the property'.[75]
[75] Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449, 455 (Lockhart J).
Determining whether a document is a 'sham' in this sense requires an examination of the parties' subjective intentions.[76] Evidence of the parties' intentions and conduct at the time of their entry into the impugned agreement, as well as their subsequent conduct, will be admissible to establish their subjective intentions when they entered into the impugned agreement.[77] The parties' intentions may also be established by reference to the form of the transactions and the surrounding circumstances.[78]
[76] Coppleson v Federal Commissioner of Taxation (1981) 52 FLR 95, 99; Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449, 456 - 457 (Lockhart J).
[77] Pickersgill v Tsoukalas [2009] SASC 357 [39] (White J, Anderson & Kourakis JJ agreeing); Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149 [117]; Laidlaw v Hillier Hewitt Elsley Pty Ltd [2009] NSWCA 44 [58] ‑ [59].
[78] Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449, 457 (Lockhart J).
A finding that a written agreement is a 'sham' transaction is very unusual. In the context of agreements apparently made under the RT Act, a finding that such an agreement is a 'sham' is likely to be truly exceptional, given the circumstances in which those agreements will usually operate (for example, if rent is actually paid, and if the occupation of a residential premises actually occurs), and because there appears to be less scope for some sort of advantage or benefit (such as a tax advantage) to be obtained by the parties from executing a residential tenancy agreement without any intention that it should actually govern their relationship.
In the present case, however, Ms Yahiya has put before the Court some evidence which is capable of supporting a conclusion that neither the defendant nor Ms Yahiya intended that the Lease would govern the terms on which Ms Yahiya would be entitled to reside at the Property, but that the agreement or understanding with which the parties had hitherto complied would continue to apply.
As I have already observed, the evidence adduced by Ms Yahiya was not comprehensive. The evidence is not sufficient to enable any conclusion to be drawn about the nature of the agreement or understanding which governed Ms Yahiya's occupation of the Property prior to 2009 (and on her case, which continues to apply). By way of example, it is not possible to determine whether occupation of the Property was part of the terms of Ms Yahiya's employment or formed part of the remuneration the defendant provided for the services she performed as a caretaker or site manager.
In any event, the evidence of the parties' subjective intentions, or from which those intentions might be discerned, presently encompasses the circumstances in which Ms Yahiya came to reside at the Property in 2005; the fact that she was permitted to reside at the Property, apparently on the same basis, after the defendant became the owner of the Property; the representations she says were made to her by agents of the defendant at the time of the parties' entry into the Lease in 2009 and on which she says she relied when she signed the Lease; and the nominal rent which was purportedly charged under the Lease, together with the fact that no rent has ever been demanded from Ms Yahiya, either during the fixed term of the Lease or subsequently.
On its own, that evidence would not have been sufficient to support an arguable case that the Lease was not genuine. The fact that the defendant entered into the Lease and that that Lease contained terms which were not precisely the same as the agreement or understanding on which Ms Yahiya had occupied the Property prior to that point would be entirely consistent with an intention by the defendant that the Lease would govern Ms Yahiya's occupation of the Property in the future. The statements said to have been made by Mr Lewis might, in that context, have been viewed as representations made to induce Ms Yahiya to enter into the Lease.
However, Ms Yahiya adduced some evidence of more recent conduct by the defendant, namely, its demands that Ms Yahiya pay the water service charges and the rates for the Property, which conduct is inconsistent with the terms of the Lease. (The special conditions of the Lease required only that Ms Yahiya pay for 'utilities relating to consumption of water' (emphasis added), and the Standard Terms which were incorporated into the Lease expressly provided that 'the Owner shall bear the cost of all rates, taxes or charges imposed in respect of the Premises other than water consumption charges which the Tenant will pay or reimburse'.[79]) That conduct is arguably capable of supporting an inference that the defendant considers that the terms of the Lease do not now, or perhaps did not ever, govern Ms Yahiya's occupation of the Property.
[79] Affidavit of Aydin Yahiya sworn 29 August 2016, Annexure AY16.
The defendant's conduct is perhaps most accurately characterised, at this point, as having been somewhat inconsistent in relation to whether the Lease governed Ms Yahiya's occupation of the Property.
On balance, I have reached the conclusion that Ms Yahiya has established that it is arguable that the Magistrates Court did not have jurisdiction under the RT Act to make the Order, on the basis that the Lease did not in fact operate to establish legal relations between Ms Yahiya and the defendant in relation to occupation of the Property. As the Court does not yet know what the defendant's evidence will be in response to this question, it is not possible to engage in any evaluation of the prospects of the ground of review beyond concluding (with, it must be said, considerable reservations) that Ms Yahiya has a reasonable prospect of success on this ground.
I would again emphasise, however, that in reaching this conclusion I am very conscious of the fact that the defendant has not yet put before the Court any evidence on which it may wish to rely in relation to the question whether the Lease is genuine. It will have the opportunity to do that at the hearing in respect of the review order. Whether Ms Yahiya ultimately succeeds on a review of the order will depend on an evaluation of all of the evidence adduced by the parties.

The Court's power to grant a stay of a decision the subject of a review order

The procedure for dealing with an application for a review order is set out in O 56A of the Rules of the Supreme Court 1971 (WA) (RSC). If a judge makes a review order, that order 'may include 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'.[80]
[80] Rules of the Supreme Court 1971 (WA) O 56A r 3(3)(d).
Neither s 36 of the MC Act nor O 56A RSC specify the test to be applied for the grant of a stay. However, it is now established that the test which is to be applied is the test which applied in respect of the grant of a stay of a decision the subject of an application for an order nisi.[81] That test is 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.[82]
[81] Re Greg Cockram Magistrate of the Magistrates Court of Western Australia at Perth; Ex parte Miller [2009] WASC 350 [14] (Simmonds J), referring to Zucal v Harper (2005) 29 WAR 563 [58] (Steytler P, Wheeler & Pullin JJ agreeing); Stampalia v Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7 [11] (Owen J).
[82] Re Greg Cockram Magistrate of the Magistrates Court of Western Australia at Perth; Ex parte Miller [2009] WASC 350 [14] (Simmonds J), referring to Zucal v Harper (2005) 29 WAR 563 [58] (Steytler P, Wheeler & Pullin JJ agreeing); Stampalia v Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7 [11] (Owen J).
As a stay can only be granted if a review order is made,[83] it necessarily follows that, before a stay can be granted, the Court will have been satisfied that the applicant has established an arguable case in respect an applicable ground of review, and that that ground of review has a reasonable prospect of success. For the purposes of considering whether a stay should be granted, it is therefore necessary only to consider the additional question of the existence of special circumstances sufficient to satisfy the Court that the order of the Magistrates Court should be stayed so as to preserve the subject matter and integrity of the review proceedings. That test encompasses factors that would normally be taken into account in considering the balance of convenience in relation to the grant of injunctive relief.[84]
[83] Rules of the Supreme Court 1971 (WA) O 56A r 3(3)(d).
[84] Stampalia v Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7 [11] (Owen J).
The impact on a tenant of eviction from residential premises, pursuant to an order made under the RT Act, will be relevant to the question whether special circumstances exist which warrant the making of a stay of an order of that kind.[85]
[85] Re Greg Cockram Magistrate of the Magistrates Court of Western Australia at Perth; Ex parte Miller [2009] WASC 350 [15] (Simmonds J).

Why a stay of the Order should be granted

I am satisfied that Ms Yahiya has established that special circumstances exist which warrant the grant of a stay in respect of the Order, for the following reasons.
First, the loss of an entitlement to occupy a residential property without paying any rent represents the loss of a valuable benefit to Ms Yahiya.
Secondly, the Property has been Ms Yahiya's home for approximately 11 years. Her eviction will no doubt have a significant personal impact, quite apart from its financial impact.
Thirdly, absent the grant of a stay, it appears likely that the defendant will enforce the Order, as it is entitled to do. If that occurs, Ms Yahiya will lose any entitlement to reside at the Property. If the defendant pursues the subdivision of the Property while the review order is being heard, then even if review of the Order is ultimately successful, there is no guarantee that it will be possible, in practical terms, for Ms Yahiya to return to the Property.
Fourthly, counsel for the defendant resisted the stay primarily on the basis that no arguable case existed in respect of the grounds of review, and did not seriously press any balance of convenience considerations which would weigh against a grant of a stay. It was not suggested that the defendant would suffer any prejudice by virtue of the grant of a stay. While Ms Yahiya's continued occupation of the Property precludes its subdivision and sale, it was not suggested that any subdivision and sale could be effected immediately. Nor is it the case that the Property is the last remaining land in the Estate to be developed, so there is no suggestion that Ms Yahiya's continued occupation of the Property would delay the completion of the development of the Estate as a whole.

Conclusion

A review order should be made in respect of the Order, and the operation of the Order should be stayed until the Court has determined the review application.
The parties should confer about the orders which should be made, having regard to O 56A r 3 RSC, and having regard to whether further evidence is to be adduced.
One further observation should be made. Leaving to one side the review application, what is really at stake between the parties is a dispute over whether Ms Yahiya should be permitted to reside at the Property, rent free, until the development of the Estate is completed (which counsel for the defendant estimated to be two years away[86]), and a dispute in relation to acceptable terms for the sale of the Property (there being no objection from the defendant to the sale of the Property to Ms Yahiya on commercial terms). The likely cost of resolving this dispute through litigation, especially if Ms Yahiya pursues an action for equitable relief based on a proprietary estoppel claim, is likely to be significant for all concerned, regardless of the outcome of the litigation.
[86] ts 11.
For that reason, the parties' dispute cries out for a mediated resolution. It is not apparent that that has been pursued, or sufficiently pursued, prior to this point. The parties, through their solicitors, should make every endeavour to reach a compromise, before further resources are expended in litigation.
I will hear the parties on the orders which should be made for the review order and the stay, and which are otherwise necessary to facilitate an expeditious hearing of the review order.