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Re Magistrate Steven Malley

Re Magistrate Steven Malley

Case [2017] WASC 193 19 July 2017

Jurisdiction

Residential Tenancies

Procedural Fairness

Civil Litigation & Procedure

Property Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MAGISTRATE STEVEN MALLEY; EX PARTE THE HOUSING AUTHORITY [2017] WASC 193

CORAM: LE MIERE J

HEARD: 2 DECEMBER 2016

DELIVERED : 19 JULY 2017

FILE NO/S: CIV 2617 of 2016

MATTER :An application under the Magistrates Court Act 2004 section 36 for a review order against Magistrate Steven Malley of the Magistrates Court at Fremantle

EX PARTE
THE HOUSING AUTHORITY
Applicant

Catchwords:

Residential tenancy - Application to terminate social housing tenancy agreement - Review order of magistrate's decision under Magistrates Court Act 2004 (WA) s 36 - Whether s 71(3)(b)(i) of Residential Tenancies Act 1987 (WA) misconstrued - Whether defending termination proceedings brought under s 71 of Residential Tenancies Act 1987 (WA) amounts to 'tak[ing] steps to secure or enforce ... rights as a tenant' - Whether 'motivated' - Whether procedural fairness accorded

Legislation:

Conciliation and Arbitration Act 1904 (Cth), s 5
Fair Work Act 2009 (Cth), s 361(1), s 340, s 346
Interpretation Act 1984 (WA), s 19(1)(a), s 19(1)(b)(i)
Magistrates Court Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 60, s 64, s 71(2), s 71(3)(b)(i), s 75A, pt V
Workplace Relations Act 1996 (Cth)

Result:

Application granted

Category: A

Representation:

Counsel:

Applicant: Mr A J Sefton & Mr T E Pontre
Amicus Curiae : Mr G M G McIntyre SC

Solicitors:

Applicant: State Solicitor for Western Australia
Amicus Curiae : Tenancy WA

Case(s) referred to in judgment(s):

Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231
Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council [2000] FCA 1231
Blanket v The Housing Authority [2014] WASC 409
Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 254 CLR 243
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Legal Practitioners Complaints Committee v Camp [No 2] [2010 WASC 207
Legal Services Board v Gillespie‑Jones (2013) 249 CLR 493
Levy v State of Victoria (1997) 189 CLR 579
McKay v Commissioner of Main Roads [2013] WASCA 135
RG and LT v Director of Public Prosecutions [2004] EWHC 183
Taylor v Director of Public Prosecutions [2006] EWHC 1202
The Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Van Heerden v Hawkins [2016] WASCA 42
LE MIERE J:

Summary

The applicant, the Housing Authority, issued a notice of termination to a tenant under s 64 of the Residential Tenancies Act 1987 (WA) (RTA) requiring the tenant to give to the Authority possession of the premises in 60 days. The tenant did not give up possession. The Authority applied under s 71 of the RTA to the Magistrates Court for an order terminating the tenancy agreement and an order for possession of the premises. Section 71(2) provides that subject…

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 Steven Malley

Details

AGLC: Re Magistrate Steven Malley [2017] WASC 193
Case: [2017] WASC 193
Decision Date: 19 JULY 2017

CaseChat Overview and Summary

The case before the court involved an application by the Department of Communities to terminate a social housing tenancy agreement. The application was reviewed under section 36 of the Magistrates Court Act 2004 (WA). The respondent, Magistrate Steven Malley, challenged the decision of the Department to terminate the tenancy agreement, arguing that the magistrate had misconstrued section 71(3)(b)(i) of the Residential Tenancies Act 1987 (WA). The respondent also contended that the defending of termination proceedings under section 71 of the Act did not amount to taking steps to secure or enforce rights as a tenant and was not motivated as required by the Act.

The court examined whether the defending of termination proceedings constituted taking steps to secure or enforce rights as a tenant. The court considered the legislative intent behind section 71(3)(b)(i) of the Act and whether the defending of termination proceedings fell within the definition of taking steps. The court also considered whether the respondent's actions were motivated as required by the Act. In addition, the court assessed whether procedural fairness was accorded to the respondent during the decision-making process. The court concluded that the magistrate had not misconstrued the Act and that the respondent's actions did not amount to taking steps to secure or enforce rights as a tenant.

The court found that the magistrate's decision to terminate the tenancy agreement was valid and that the respondent had not demonstrated any error in the decision-making process. The court also found that procedural fairness had been accorded to the respondent. The court dismissed the application for a review order and upheld the decision of the Department to terminate the tenancy agreement. The respondent was ordered to pay the costs of the application.

Orders