Re Young;

[2015] WASC 264

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE YOUNG; EX PARTE BINZER [2015] WASC 264

CORAM:   BEECH J

HEARD:   3 JULY 2015

DELIVERED          :   27 JULY 2015

FILE NO/S:   CIV 1297 of 2015

EX PARTE

JOSIAH JOHN BINZER
Applicant

AND

MAGISTRATE ROBERT YOUNG
Respondent

Catchwords:

Judicial review - Jurisdictional error - Application for review under s 36 of the Magistrates Court Act 2004 (WA) - Magistrates decision under the Residential Tenancies Act 1987 (WA) - Whether magistrate made orders without jurisdiction or power

Legislation:

Magistrates Court Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 26, s 60

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr C Baker

Respondent:     No appearance

Solicitors:

Applicant:     Pilbara Community Legal Service

Respondent:     No appearance

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

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120

Hamersley Iron Pty Ltd v James [2015] WASC 10

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

Rayney v AW [2009] WASCA 203

Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 75 ALJR 542

Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342

BEECH J: 

Introduction

1. This is an application for review of a magistrate's decision made under the Residential Tenancies Act 1987 (WA). The ground of the application is that the learned magistrate made orders 'without jurisdiction or power'. For the reasons that follow, the application must be dismissed because the applicant has failed to establish that the magistrate made any jurisdictional error.

Background

1. The magistrate's decision concerned a residential tenancy agreement (the Agreement) relating to a unit in Bulgarra (the Premises).  On 25 July 2013, the applicant and another person entered into the Agreement with the owner of the Premises, Maru Pty Ltd (the Landlord).  In late August 2013, the applicant's co‑tenant vacated the Premises.  The Agreement was subsequently amended to remove the co‑tenant and the bond was transferred to the applicant as sole tenant.

2. On 6 February 2014, the applicant's brother contacted the Landlord on the applicant's behalf.  He advised the Landlord that the applicant could no longer pay rent and had vacated the Premises.  The Landlord subsequently sent the applicant letters requiring a written notice of termination, informing him that a new tenant was being sought, and reminding him of his continuing obligations under the Agreement.[1]

   [1] Affidavit of J J Binzer sworn 2 April 2015, Annexures A ‑ C.

3. On 24 February 2014, the Landlord changed the locks on the Premises and removed the applicant's furnishings and belongings.

4. Between 6 February 2014 and 24 February 2014, the Landlord did not give any written notifications under the Residential Tenancies Act to the applicant.  Nor did the applicant give any notice of termination to the Landlord.

5. In May 2014, the applicant filed an application to terminate the Agreement at the Karratha Magistrates Court.  The application was heard by a registrar on 5 June 2014.  By consent, the registrar ordered that the Agreement be terminated from that date.

6. The Landlord commenced proceedings in the Magistrates Court, claiming an amount equal to the applicant's unpaid rent and outgoings from 6 February 2014 to 5 June 2014.

The magistrate's decision

1. On 6 February 2015, the learned magistrate heard and determined the Landlord's claim relating to the Agreement.  He also heard an application by the applicant for compensation for the removal of his furnishings and belongings from the Premises.  The applicant seeks judicial review of the magistrate's decision in relation to the Landlord's claim.

2. The Landlord submitted to the magistrate that rent was payable by the applicant until the termination of the Agreement by court order on 5 June 2014.  It sought an order to that effect and a supplementary order that the applicant's security bond be paid to the Landlord.[2]

   [2] Magistrates Court ts 28.

3. In opposition, the applicant argued that the Landlord terminated the Agreement on 24 February 2014 when it changed the locks on the Premises.[3] Accordingly, the applicant contended that his obligations under the Agreement also terminated on that date.  The applicant also submitted that even if the Landlord's actions did not terminate the lease, they should still prevent the Landlord from recovering rent for the period after 24 February 2014.[4]

   [3] Magistrates Court ts 3 ‑ 4, 31.

   [4] Magistrates Court ts 31 ‑ 32.

4. The learned magistrate found that the Agreement remained on foot until 5 June 2014.[5]  His Honour rejected the applicant's argument that the Landlord's actions on 24 February 2014 terminated the Agreement.

   [5] Magistrates Court ts 35.

5. The learned magistrate held that the Agreement might have been terminated if the Landlord had changed the locks with the intention of preventing the applicant from entering the Premises.  However, his Honour found that the Landlord’s intention was to try and find a new tenant for the benefit of both parties.  His Honour accepted the Landlord's evidence that it would have allowed the applicant to resume occupancy if his circumstances had changed.[6]

   [6] Magistrates Court ts 35.

6. The magistrate also pointed to the fact that on 5 June 2014, by consent, the registrar had ordered that the Agreement be terminated with effect from that date.[7]

   [7] Magistrates Court ts 36 ‑ 37.

7. The learned magistrate found that, by its actions on 24 February 2014, the Landlord breached the Agreement and failed to comply with the Residential Tenancies Act.  His Honour held that this was not relevant to the issue of rent.[8] However, it did prevent the Landlord from recovering the applicant's bond.[9]

   [8] Magistrates Court ts 35.

   [9] Magistrates Court ts 37.

8. The learned magistrate ordered the applicant to pay rent and outgoings owing until 5 June 2014 ($14,545), less his bond ($3,400) and compensation for the removal of his belongings and furnishings ($1,600).[10]

   [10] Magistrates Court ts 38.

The application

1. The applicant seeks review of the magistrate's decision on the ground that those orders were made without jurisdiction or power.  In other words, the applicant contends that the learned magistrate made a jurisdictional error.

2. Section 36 of the Magistrates Court Act 2004 (WA) provides for a statutory form of judicial review of magistrates' decisions by this court.[11] Section 26 of the Residential Tenancies Act provides for the finality of orders made under that Act.  I proceed on the assumption, favourable to the applicant and consistent with Kirk v Industrial Court of New South Wales,[12] that s 26(2) is to be construed as not excluding this court's power to review a decision of a magistrate for jurisdictional error.

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

   [12] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [99] ‑ [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

Judicial review for jurisdictional error - legal principles

1. In Kirk,[13] a majority of the High Court endorsed the description of the concept of jurisdictional error given by Hayne J in Re Refugee Tribunal; ex parte Aala.[14]  In that case, his Honour said that a decision‑maker commits a jurisdictional error if they make a decision that exceeds the limits of the functions and powers conferred on them, or if they do something that they lack the power to do.

   [13] Kirk [66].

   [14] Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J).

2. In Hamersley Iron Pty Ltd v James,[15] I quoted McLure JA's outline of some well‑known categories of jurisdictional error:

   While the categories are not closed, the following five categories of jurisdictional error in respect of inferior courts and analogous bodies are well established:[16]

   'First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction.  Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.  Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied (which I understand to be a reference to a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the Court has jurisdiction to entertain.  Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case.  Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case'.

   To these may be added where the decision is made in bad faith and where it is made in breach of natural justice.[17]

   [15] Hamersley Iron Pty Ltd v James [2015] WASC 10 [55] ‑ [56].

   [16] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 ‑ 178; Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181] (McLure JA); Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [16] (Steytler P, Wheeler and McLure JJA).

   [17] Kirk [60].

The disposition of the application

1. It is for the applicant to establish jurisdictional error on the part of the magistrate.

2. The applicant's written submissions contain complaints about the decision of the magistrate and some of his findings.  However, they do not identify any error that is open to be characterised as jurisdictional.

3. In oral submissions, counsel for the applicant identified two alleged jurisdictional errors.

4. First, the applicant contends that the learned magistrate committed a jurisdictional error by failing to apply s 60 of the Residential Tenancies Act. This section limits the circumstances in which residential tenancy agreements can be terminated. The applicant argues that the learned magistrate should have found that the Agreement was terminated by abandonment under s 60(f).[18]

   [18] Supreme Court ts 3 - 4, 7.

5. There are two answers to this contention. The first is that, although the learned magistrate did not find that the Premises had been abandoned, it does not follow that his Honour failed to give effect to s 60. His Honour found that the Agreement was terminated by court order on 5 June 2014 on the ground of hardship.[19] That is consistent with s 60, which provides that a residential tenancy agreement can be terminated by a competent court on certain grounds that include undue hardship.[20]

   [19] Magistrates Court ts 36.

   [20] Residential Tenancies Act, s 60(c), s 74.

6. More significantly, the second answer to the applicant's first contention is that it is essentially a complaint that the learned magistrate failed to make the factual finding invited by the applicant.  Apart from where the existence of the fact is a condition of the decision‑maker's jurisdiction,[21] a complaint about a finding of fact does not, without more, allege or reveal jurisdictional error.[22]

   [21] See Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 [43] (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ).

   [22] See Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 75 ALJR 542 [35] (McHugh).

7. The applicant's submissions[23] refer to evidence given before the learned magistrate by the Landlord's property administrator, Ms Debbie Parker, to the effect that she viewed the Agreement as broken when the locks on the Premises were changed.[24]  However, Ms Parker's subjective opinion was immaterial to the question of whether the Agreement was terminated.  In any event, the fact that there was (perhaps) evidence to support a finding contrary to that made by the learned magistrate does not, of itself, establish a factual or legal error of any kind.  Still less does it reveal jurisdictional error.

   [23] Applicant's submissions dated 5 June 2015 [5].

   [24] Magistrates Court ts 11.

8. Ms Parker also gave evidence that, if the applicant had contacted the Landlord after the locks were changed, he could have resumed his tenancy if he was able to pay rent.[25]  The applicant criticises this evidence and, implicitly, the magistrate's reliance on it, describing Ms Parker's testimony as 'self‑serving'.[26]  The weight to be given to Ms Parker's evidence was a matter for the learned magistrate.  A complaint that his Honour gave too much weight to this evidence does not reveal a jurisdictional error.

   [25] Magistrates Court ts 12.

   [26] Applicant's submissions dated 5 June 2015 [21].

9. Moreover, in placing weight on the fact that a court had ordered that the Agreement was terminated on 5 June 2014, the magistrate did not err.

10. For these reasons, the applicant's first contention fails.

11. The applicant's second contention is that, even if the Agreement was not terminated on 24 February 2014, the magistrate should have found that the applicant was not liable to pay rent after that date.[27]

    [27] Supreme Court ts 5, 7.

12. Again, this contention does not establish any jurisdictional error.  It does not identify any misapprehension of jurisdiction or misconstruing of the Residential Tenancies Act by the learned magistrate.  It is, in essence, a complaint that his Honour made a finding on a mixed question of fact and law that was unfavourable to the applicant.

13. No jurisdictional error is established.

Conclusion

1. For the reasons I have given, the application must be dismissed.