Re Magistrates Court Act 2004
[2020] WASC 424
•24 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE MAGISTRATES COURT ACT 2004; EX PARTE WATT [2020] WASC 424
CORAM: ALLANSON J
HEARD: 12 & 13 NOVEMBER 2020
DELIVERED : 13 NOVEMBER 2020
PUBLISHED : 24 NOVEMBER 2020
FILE NO/S: CIV 2068 of 2020
MATTER: An application under the Magistrates Court Act 2004 section 36 for a review order against the Magistrates Court Perth Registry
EX PARTE
NICOLE WATT
Applicant
Catchwords:
Practice and procedure - Application for injunction to stay enforcement proceedings pending outcome of judicial review - Where applicant applies for review of magistrate's decision under Residential Tenancies Act - Whether applicant has a prima facie case that at trial may entitle her to relief - Turns on own facts
Legislation:
Magistrates Court Act 2004 (WA), s 35, s 36
Residential Tenancies Act 1987 (WA), s 21, s 26, s 80
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In person |
Solicitors:
| Applicant | : | In person |
Case(s) referred to in decision(s):
Nil
ALLANSON J:
I gave my decision and oral reasons for it on the day of hearing. These reasons have been edited from transcript for clarity.
On 23 October 2020, Ms Nicole Watt applied under s 36 of the Magistrates Court Act 2004 (WA) for a review order setting aside an order made in the Magistrates Court at Perth on 30 June 2020 under the Residential Tenancies Act 1987 (WA).
Ms Watt also applied for an interlocutory injunction to restrain the respondent from enforcing the order until the principal application has been determined.
On 12 and 13 November I heard the application for an interlocutory injunction. These are my reasons for dismissing that application.
The evidence
The application for a review order is supported by an affidavit of Ms Watt with 17 attached documents. The affidavit has different dates of swearing in different places, but I assume the correct date is 12 October 2020, the date entered below the signature of the Justice of the Peace.
I have also had regard to the application dated 27 October 2019 filed in the Magistrates Court, by which Ms Watt sought to set aside or vary the orders of the magistrate made on 5 December 2018.
On this application Ms Watt has filed submissions dated 11 November 2020, which I have read. The facts (which I have taken from the affidavit of Ms Watt) can be stated quite briefly.
The facts
On 2 May 2017, Ms Watt entered into a written residential tenancy agreement with Mr Kevin Stevenson for the lease of an apartment in Perth. Mr Stevenson is named as the respondent to the judicial review application.
Mr Stevenson acted through a property manager in relation to the leasing of the premises.
The tenancy was for a fixed term, starting on 2 May 2017 and ending on 1 May 2018. The rent was payable weekly in advance at the rate of $825 for the first six months, after which it increased to $850 a week.
Ms Watt paid a security bond of $3,300.
On 10 March 2018, Ms Watt received a termination notice for non‑payment of rent. She responded with complaints about the state of the premises.
On 16 March 2018, Ms Watt received correspondence informing her that a form 12 had been submitted to the Magistrates Court for an order of possession. Form 12 is the approved form for applying for a court order under the Residential Tenancies Act.
On or about 12 April 2018, Ms Watt left the premises before the term of the lease had expired.
A bond inspection was carried out on 30 April 2018. On 25 September 2018, Mr Stevenson applied for a court order for payment of $14,947.43[1] for outstanding rent, cleaning and repair of the premises.
[1] After payment of the bond of $3,300 to Mr Stevenson.
On 22 November 2018, the Magistrates Court adjourned the application to 5 December, and that is when it was heard.
It appears that the application was dealt with under the minor cases procedure in the Magistrates Court. That procedure is confined to claims for less than $10,000. On 5 December 2018, a magistrate made orders, pursuant to the Residential Tenancies Act, that Ms Watt pay to Mr Stevenson a total of $6,765.20, after payment of the security bond to Mr Stevenson in part satisfaction of the order. The total was made up of outstanding rent, painting and the costs of the application. It did not include compensation for other cleaning and repairs.
On 5 March 2019, Ms Watt received an email from Salt Property Group, on behalf of Mr Stevenson, advising her of the decision and also advising her that her personal debt was a little over $18,000, less the security bond. Despite the order of the court being for $6,765, the email requested payment of $14,842.13 within 14 days.
Ms Watt applied to have the order of the Magistrates Court set aside on the ground that she had not received a summons to attend court. That application was dated 27 October 2019, but it bears a date stamp of 4 December. I assume that is when it was filed.
On 30 June 2020, after the hearing, the Magistrates Court ordered payment of the outstanding rent in the amount previously ordered. It also ordered compensation for cleaning, painting, repair and replacement of some items, and future rent being approximately one and a half weeks after the termination of the tenancy. The total awarded, less the bond already disbursed, was $12,461.61.
The application for judicial review
On 23 October this year, Ms Watt applied to the Supreme Court for a writ of certiorari alleging jurisdictional error.
Under s 35 of the Magistrates Court Act, a writ of certiorari may not be issued in respect of or directed to a magistrate. This court, however, has power under s 36 of the Magistrates Court Act, to grant any relief or remedy that could have been granted by way of certiorari, and to make any necessary consequential orders if the order made by the magistrate was made without jurisdictional power, or was an abuse of process.
The legislature, however, has made it clear that disputes under the Residential Tenancies Act are to be resolved quickly and finally. An order under the Act is final and binding, and no appeal lies. By s 26(2) of the Residential Tenancies Act, this court may only set aside the decision of a magistrate under s 36 of the Magistrates Court Act if the magistrate had no jurisdiction in respect of the proceedings, or Ms Watt was denied natural justice. The role of the Supreme Court is only to review the legality of the decision, and not to review its merits.
The application for a stay of enforcement or injunction
In applying for an interlocutory injunction, Ms Watt advised the court than examination order proceedings were listed for 16 November 2020, before the Local Court in Sydney.
Ms Watt lives in Sydney, but for some reason travelled to Western Australia on 11 or 12 November 2020. By coming to Western Australia she put herself in the position where she must remain in quarantine in this State, and I am not sure what effect that will have on the proceedings in Sydney on 16 November 2020. It was a foolish thing to do. It does not, however, make this application meaningless, as Ms Watt seeks to restrain enforcement proceedings against her generally.
I proceed on the basis that this court has an inherent power to restrain proceedings for enforcement, pending determination of the judicial review proceedings, in order to preserve the subject matter of the proceedings in this court. But Ms Watt must show some reason why the court should exercise its discretion to restrain proceedings on the judgment.
Principles
In the present case Ms Watt was entitled to a hearing and decision in the Magistrates Court in accordance with law, including the Residential Tenancies Act. She is entitled, in this court, to have the orders made in the Magistrates Court set aside if the court did not have jurisdiction conferred by or under the Residential Tenancies Act in respect of the proceedings, or if she was denied natural justice. That is the subject of her application for review.
The court may grant an injunction if it is necessary to restrain enforcement of the orders made in the Magistrates Court in order to prove the subject matter of the litigation in this court, that is, an injunction to protect the courts own processes.
The considerations to which the court should have regard in an application for the grant of an interlocutory injunction are well established. The court addresses two main inquiries: first, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at trial she will be held to be entitled to relief and, second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused is likely to be outweighed by the injury which the respondent would suffer if an injunction was granted.
The requirement that Ms Watt show a probability that at the trial of this action she will entitled to relief does not mean that she must show it is more probably than not that she will succeed at trial. It is sufficient if she shows a sufficient likelihood of success to justify the restraint she seeks.
Generally, on an application for an interlocutory injunction, the applicant must also provide an undertaking as to damages. In the present matter the damages likely to be suffered by Mr Stevenson if the injunction had been granted might have been met by costs orders in the proceedings in New South Wales or, indeed, in this court. The failure of Ms Watt to offer an undertaking is not necessarily an unsurmountable obstacle. It becomes irrelevant because of my decision on the application.
Consideration
Ms Watt seeks to review the magistrate's decision on six grounds. There were two overlapping statement of grounds in the application, and a further statement of grounds in the submissions that she prepared and sent by email to the court, dated 11 November 2020.
Ms Watt was disadvantaged in several ways in the conduct of the injunction application. First, she is not represented. I have made allowances for errors of form in her documents and for the lack of clarity in her grounds and some of her arguments. It is not, however, appropriate for the court to attempt to anticipate grounds or evidence other than those she has filed, or to seek to raise arguments that she does not raise herself. Second, Ms Watt has, with her own actions, put herself in the position where she had to make this application from quarantine. She had been told that the court would hear her application by telephone from Sydney but chose to travel to Perth. She cannot have been unaware of the consequences of doing that, having spent at least one previous period in quarantine earlier this year when she travelled to Perth. As it was, she appeared by telephone from quarantine when otherwise she would have appeared by telephone from Sydney. Third, Ms Watt was also disadvantaged by the absence of transcript of the proceedings in the Magistrates Court.
I have tried to make proper allowance for the disadvantages that she suffers, but there are limits to what the court can do. The court must also attempt to balance the interest of the respondent, Mr Stevenson, who is also not represented. Although he was able to appear in person, at very short notice, he is, effectively, subject to the same disadvantages.
Ground 1 of Ms Watt's application for judicial review alleges error by the magistrate in the decision of 5 December 2018 in failing to ask if the respondent's recovery of possession of the premises during the lease was prohibited by s 80 of the Residential Tenancies Act. Her evidence before me was that the respondent entered the premises for the purpose of recovering possession while Ms Watt was in possession as a tenant. In her application and evidence in the Magistrates Court she said that she had vacated the premises in April 2018. Ms Watt said in her submissions to this court that the respondent changed the locks some weeks after she vacated the premises. She does not allege that there was any entry by the respondent before then.
Assuming that the landlord re-entered the premises after Ms Watt had vacated them but before the lease had expired, it may have been a matter of days before it expired. I cannot see how that affects the jurisdiction of the magistrate to make the orders that he did. Ms Watt informed me that the magistrate was aware of the facts and issues that she raised in this court.
On an application made under the Residential Tenancies Act, the magistrate had the power, under pt 3 of that Act, to order to payment of compensation for loss or injury caused by breach of the tenancy agreement by the landlord. The magistrate was required to take into account any previous breaches by the lessor or the tenant. There is no evidence that the magistrate did not do so. But, in any event, it was a matter within the jurisdiction of the magistrate to decide.
Ground 2 alleges failures by the magistrate to apply the rules of evidence and the failure to take into account 10 specified matters under the Residential Tenancies Act.
The reference to the rules of evidence is misconceived. Section 21 of the Residential Tenancies Act provides that in any proceedings on an application under the Act, a court is not bound by the rules of evidence, but may inform itself in such manner as it sees fit. The failure to apply the rules of evidence could not be an error.
Some of the listed matters in ground 2 are patently immaterial. For example, Ms Watt asserts that the lease was not terminated, but as it had expired well before Mr Stevenson made his application in September 2018, the question of whether it was terminated is of no consequence.
As another example, Ms Watt referred to s 47(2)(a) of the Residential Tenancies Act, a provision which applies where the tenancy agreement permits the tenant to affix fixtures, renovate or alter the premises. But the tenancy agreement between Ms Watt and Mr Stevenson expressly did not permit those things, and s 47(2)(a) did not apply. None of the other matters to which Ms Watt has referred has been shown to be arguably material to the decision of the magistrate.
Ground 3 alleges that the magistrate failed to find that the respondent lacked clean hands in the assessment of damages. But that ground also is misconceived. The question of clean hands, assuming there was evidence of that matter before the magistrate, does not go to the jurisdiction of the magistrate. In fact, it was entirely irrelevant to the matters before the magistrate. The complaint in ground 3 does not go to the jurisdiction of the Magistrates Court to determine the dispute and make the orders that it did.
Ms Watt also contends in ground 3 that there was no proof of service for the application that was heard in 2018. But that also cannot be material to the decision made on 30 June 2020, which is the decision with which this court is concerned, and which was made on Ms Watt's own application, and at which she appeared.
Ground 4 alleges failure by the magistrate to consider and give weight to evidence of probative value. The weight to be given to evidence is normally a matter within the jurisdiction of the magistrate. On the material before me, I could not find that there were errors in dealing with issues of fact or weight of evidence of such a character that they would take the decision outside the jurisdiction of the magistrate. It is not, for example, alleged that the decision of the magistrate was legally unreasonable by reason of his approach to the evidence, and there is no material before the court to support a finding of legal unreasonableness were I to interpret the ground in that way.
Ground 5 alleges apprehended bias from comments made in the course of proceedings. Apprehended bias, if established, would be jurisdictional error.
Ms Watt relied on three particulars in her submissions and an additional particular she raised in oral submissions. First, she referred to three comments made by the magistrate on 19 June 2020. Second, she said there were 'implications' of prejudgement by the comments made at the ex parte hearing on 5 December 2018 that the respondent's photographs were damaging to her case. And, third, she complained that she had to cross‑examine by audio link as she was required to self‑isolate.
The test for apprehended bias is whether a fair minded observer might reasonably consider that the magistrate might not carry out his functions with an impartial and unprejudiced mind. The test is objective. One of the ways in which an apprehension of bias may arise is where a judicial officer has, in earlier hearings in the same proceedings, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case, or about the credit of a witness whose evidence is of significance on such a question of fact. An apprehension of bias may also be demonstrated by comments demonstrating prejudgment in the course of a hearing.
Ms Watt did not adduce evidence from which the court could find an arguable case of apprehended bias.
Ms Watt referred to three comments by the magistrate. I put them to her in submissions at the hearing. There is no need to repeat them.
Ms Watt did not put the transcript in evidence to enable a full understanding of the comments she complains about. Even without the context of the transcript, those comments do not demonstrate facts from which a fair minded observer would apprehend that a professional magistrate might have impermissibly prejudged any issue, or might not carry out his functions impartially.
I will assume (there being no transcript) that the magistrate did, in 2018, comment on the photographs produced by Mr Stevenson, and say they were damaging to Ms Watt's case. But that is not enough. First, whether the photographs were admissible was a question for the magistrate, not for this court. Second, Ms Watt has not shown what the magistrate said or that any comment might lead an intelligent and reasonable observer to consider that the magistrate might not, in 2020, carry out his functions impartially.
Ms Watt also made the general submission that the magistrate must have been biased or he would not have decided the way he did. There was nothing to support that claim other than the assertion of Ms Watt.
The complaint that she had to appear by telephone, apparently, on one of the days of the hearing must be put in context. First, she had asked to appear remotely, but then chose to come to Perth, which required her to self-isolate (something she repeated in this application). Second, the use of audio or video technology during the pandemic was a common strategy to enable matters to procced. It may, in some cases, have disadvantaged particular litigants, but nothing has been put before me to show that it caused any disadvantage in this case so as to amount to a breach of natural justice.
Ground 6 claims an entitlement to compensation. The existence of such a claim does not affect whether the decision of the magistrate to order compensation was made without jurisdiction, and so would not found the interlocutory relief sought.
Conclusion
In summary, some of the grounds are misconceived. Ms Watt did not adduce evidence from which I could be satisfied that, were that to be the evidence at the final hearing on the application for judicial review, she has a sufficiently arguable case to justify restraining the enforcement of the magistrate's orders.
For completeness, I note that at the hearing Ms Watt presented written submissions which contained a different statement of her grounds. The ground of breach of natural justice, while numbered ground 6, remains essentially the same. The other grounds allege failure to apply the rules of evidence, failure to find the respondent lacked clean hands, and error in regard to the weight given to material before the Magistrates Court. Although differently worded, those grounds add nothing to what was stated in the application for judicial review, and none of them has substance for the reasons I have given.
It is not necessary to consider the balance of convenience. Ms Watt has not shown that her application has sufficient prospects of success to now restrain the enforcement of the orders of the magistrate.
I would dismiss the application for an injunction.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson24 NOVEMBER 2020
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