Sawitri v Robson
[2019] WASC 82
•8 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SAWITRI -v- ROBSON [2019] WASC 82
CORAM: FIANNACA J
HEARD: 27 FEBRUARY & 7 MARCH 2019
DELIVERED : 8 APRIL 2019
FILE NO/S: CIV 1374 of 2019
MATTER: Residential Tenancies Act 1987 (WA)
BETWEEN: MEITY SAWITRI
Applicant
AND
SEAN ROBSON
Defendant
Catchwords:
Injunction - Interlocutory injunction - Whether to restrain defendant from evicting plaintiff pending review of orders made by Magistrates Court - Extension of interim injunction - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Residential Tenancies Act 1987 (WA)
Result:
Interlocutory injunction granted
Extension to interlocutory injunction granted
Category: B
Representation:
Counsel:
| Applicant | : | In person (27 February 2019) No appearance & Mr A Iskander appeared as McKenzie friend (7 March 2019) |
| Defendant | : | No appearance (27 February 2019) In person (7 March 2019) |
Solicitors:
| Applicant | : | Not applicable |
| Defendant | : | No applicable |
Case(s) referred to in decision(s):
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Cayne v Global Natural Resources plc [1984] 1 All ER 225
Horsman v MG Kailis Pty Ltd [2009] WASC 166
McKenzie v McKenzie [1970] 3 WLR 472
Miles v Campus Living Villages Murdoch Pty Ltd [2015] WASC 350
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Nepal v Minister for Immigration [2015] FCA 366; (2015) 327 ALR 89
Owners of the Cargo on board the Siskina v Distos Compania Naviera SA [1979] AC 210
Pennicuik v City of Gosnells [2011] WASC 63
Santos v The State of Western Australia [2013] WASCA 39
Scarce v Killalea [2003] WASCA 81
SZUTY v Minister for Immigration [2016] FCA 184; (2016) 241 FCR 237
Van der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113
FIANNACA J:
Introduction
These reasons deal with proceedings in respect of an application for an interlocutory injunction which took place before me on 27 February 2019 and 7 March 2019, and the outcome on each of those occasions. Further proceedings in respect of the application took place before Smith J on subsequent dates. As will appear from these reasons, the factual basis on which the matter proceeded ex parte on 27 February 2019 has been brought into question by evidence filed in the application since then. References to factual matters put before the court on 27 February 2019 must be considered in that context.
Summary of the proceedings
On the evening of Wednesday, 27 February 2019, Ms Sawitri ('the applicant') and her husband, Mr Iskander, made an urgent application for injunctive relief ('the Application') to prevent their eviction from a house at 37 Bertram Street, Dianella ('the premises') leased by Ms Sawitri from Mr Robson under a Residential Tenancy Agreement entered into in accordance with s 27A of the Residential Tenancies Act 1987 (WA) (RT Act). The applicant and Mr Iskander reside at the premises with their four children, who are aged from 5 to 12 years old.
The Application was heard on an urgent ex parte basis late in the evening of 27 February 2019. During the course of the hearing, it became apparent that Mr Iskander was wrongly named as an applicant, as he had no standing. However, I gave Mr Iskander leave to appear with the applicant as a McKenzie friend and to make submissions on her behalf.[1] Although it is an exceptional exercise of discretion to allow a McKenzie friend to make oral submissions,[2] I was satisfied there were exceptional circumstances in this case, given the urgency of the application and that, according to Mr Iskander, the applicant has limited ability with English. That appeared to be the case during a brief exchange I had with her.
[1] McKenzie v McKenzie [1970] 3 WLR 472; Van der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113 [28] – [29].
[2] Van der Feltz v Legal Practice Board of Western Australia [28], referring to discussions of the role of a 'McKenzie friend' in Scarce v Killalea [2003] WASCA 81 [47] - [48]; Pennicuik v City of Gosnells [2011] WASC 63 [11] - [14]; Santos v The State of Western Australia [2013] WASCA 39 [10]; Nepal v Minister for Immigration [2015] FCA 366; (2015) 327 ALR 89 [14] - [15]; and SZUTY v Minister for Immigration [2016] FCA 184; (2016) 241 FCR 237 [10] - [12].
On the information provided in the ex parte hearing, I was satisfied that the applicant had demonstrated a sufficient basis to warrant the grant of an interlocutory injunction, on an interim basis, and on certain conditions, pending a further hearing of her Application, on notice to the defendant, Mr Robson, the following week, on 7 March 2019. I indicated that I would provide reasons for my decision to grant the interlocutory injunction. Those reasons are set out at [8] ‑ [57] below.
On Thursday, 7 March 2019, Mr Robson appeared. He sought and was granted leave to have two McKenzie friends with him at the bar table to take notes and advise him. The applicant failed to appear, but Mr Iskander appeared in order to inform the court that the applicant was in Melbourne, and to seek leave to continue to act as a McKenzie friend for the applicant and speak on her behalf. I will deal below with the approach I took in that regard. It is sufficient for present purposes to say that Mr Iskander was permitted to speak on the applicant's behalf in order to answer a number of enquiries I made, which needed to be addressed.
For the proceedings of 7 March 2019, Mr Robson had filed three affidavits and supporting materials. It became apparent that the factual basis on which the hearing had proceeded on 27 February 2019 was incomplete and in some respects either untrue or inaccurate. However, a hearing had been listed for Tuesday, 12 March 2019 in the Magistrates Court for that court to deal with an application by the applicant for an order suspending the enforcement order that authorised the eviction of the applicant and her family from the premises. I considered that to be a relatively short time for the interim interlocutory injunction to continue pending a final determination of the application, which could depend on the outcome of the proceedings in the Magistrates Court.
Having regard to all of the circumstances, I concluded that the balance of convenience justified extending the interim interlocutory injunction until Wednesday, 13 March 2019, so as not to render the application in the Magistrates Court nugatory. However, the extension was granted on condition that the applicant pay into court the sum of $300, being the damages Mr Robson would suffer, by way of loss of rent, by the granting of the extension. Further, Mr Iskander was informed that, if the applicant pursued the remedy in the Magistrates Court, the further prosecution of the application for an interlocutory injunction in this Court would likely be found to be an abuse of process, as Mr Robson had contended. My reasons for the outcome on 7 March 2019 are set out at [58] ‑ [97] below.
The circumstances in which the Application was made and heard in the first instance
The Application was heard on 27 February 2019 without documents having been filed to commence the proceedings. Mr Iskander contacted the Court on the after‑hours number and spoke with my Research Associate[3] at 6.20 pm on 27 February 2019, requesting that the Application be heard on an urgent basis, because he and the applicant believed that they and their children would be evicted from the premises, being their home, the following morning around 10.00 am pursuant to an order made in the Perth Magistrates Court. The basis for that belief is discussed later in these reasons.
[3] I was rostered to deal with urgent matters after business hours.
Arrangements were made for the Application to be heard at 8.00 pm. At that time, the applicant and Mr Iskander delivered to my Research Associate a bundle of documents in support of the Application. The documents included an unsigned Notice of Originating Motion and supporting affidavits, purporting to be from the applicant and Mr Iskander, which had not been sworn or affirmed. There were a number of annexures to the affidavits. The documents were accompanied by a letter that was signed by both the applicant and Mr Iskander, which was addressed to this Court, for the attention of the Principal Registrar. As Mr Iskander subsequently explained during the hearing, he and the applicant had sought to file the documents at the Registry of the Supreme Court earlier that day, but had been told the documents could not be accepted because the Application was for an interlocutory injunction and there were no proceedings pending in the Court to which the Application related. I note that the fact that the affidavits were not sworn or affirmed presented an obstacle, in any event.
The application was heard after I had considered the documentary material delivered by the applicant and Mr Iskander. The hearing proceeded upon the undertaking of the applicant that she would swear or affirm the affidavit in her name and a similar undertaking from Mr Iskander in respect of his affidavit, and a further undertaking of the applicant that the affidavits would be filed with the Notice of Originating Motion in the event that I granted the application.
During the hearing, the applicant tendered, at my request, a copy of the Residential Tenancy Agreement (Form 1AA under the RT Act) between Mr Robson (as lessor) and the applicant (as tenant), signed by both parties on 23 November 2018.
The nature of the Application and the court's jurisdiction
The Application was similar to the application made in Miles v Campus Living Villages Murdoch Pty Ltd [2015] WASC 350, in that it sought injunctive relief against the enforcement of a Property (Seizure and Delivery) Order ('the Enforcement Order') made under s 95 of the Civil Judgments Enforcement Act 2004 (WA) (CJE Act) in respect of the premises, following an order made by a Registrar of the Magistrates Court under s 71 of the RT Act that the Residential Tenancy Agreement in respect of the premises (under which the applicant is the tenant) is terminated and the applicant, as tenant, is ordered to deliver up possession of the premises to the lessor (the 'Termination Order'). As in Miles, the Application appeared to seek the grant of injunctive relief as a cause of action in itself, and independently of the pursuit of any cause of action, or other proceeding to review or appeal the orders made in the Magistrates Court, in this Court.
As Pritchard J observed in Miles:[4]
The Court's power to grant an injunction is usually dependent upon there being a pre‑existing cause of action against the defendant arising out of an invasion, actual or threatened, of a legal or equitable right.
[4] Miles v Campus Living Villages Murdoch Pty Ltd [2015] WASC 350 [25], referring to Owners of the Cargo on board the Siskina v Distos Compania Naviera SA [1979] AC 210, 256.
Her Honour provided the following explanation, which is of considerable assistance, of the legislative scheme for the making and enforcement of the relevant orders under the RT Act and CJE Act, and appeals therefrom, and the limited jurisdiction of this Court to intervene (footnote references are incorporated within the text):[5]
Although not entirely clear, the position appears to be that in evicting Mr Miles, Baycorp would be acting pursuant to the Order made by the Magistrates Court [viz. the termination order in that case]. Until that Order is set aside, or suspended, it is not clear how there would be any basis for this Court to grant an injunction to restrain Baycorp from carrying out the eviction. Although Mr Miles has commenced proceedings in the Magistrates Court to set aside the Orders made on 4 September 2015 [viz. the termination and delivery orders], it was not apparent that this Court would have jurisdiction to suspend the operation of the Orders, or to grant injunctive relief, in the absence of proceedings in this Court to set aside or review those Orders.
Under s 15 of the CJE Act, a person against whom a judgment (which includes an order of a court requiring the person to give possession of any property to another person: CJE Act s 3) is given may apply for an order suspending the enforcement of all or part of the judgment. That application may be made to the court that gave the judgment or a court that is dealing with an appeal against the judgment. As Mr Miles had not commenced an application in this Court in respect of the Orders, no power lies in this Court to suspend the enforcement of those Orders under s 15 of the CJE Act.
Under the RT Act, the Magistrates Court has jurisdiction (with some exceptions, which do not appear to be presently relevant) to hear disputes in respect of matters that may be the subject of applications under the RT Act: RT Act s 12A and s 13. Under that Act, applications may be made to the Magistrates Court for relief including orders for the payment of money payable under a residential tenancy agreement (RT Act s 15(2)), or orders terminating a residential tenancy agreement (RTA Act s 71). There are very limited rights of review in respect of the orders made by the Magistrates Court under the RT Act. If an order is made by a Registrar, it can be appealed to a Magistrate: RT Act s 13B. Otherwise, there are no rights of appeal against decisions of the Magistrates Court under the RT Act: RT Act s 26(1).
[5] Miles [26] – [29]. I note that Baycorp, which was the bailiff in Miles, happens also to be the bailiff in the present case.
Section 36 of the Magistrates Court Act 2004 (WA) (the Magistrates Court Act) provides relevantly that:
(1)If a person is or would be aggrieved by one or more of the following -
…
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
'Court officer' is defined in s 3 of the Magistrates Act to include 'a registrar when performing functions delegated to a registrar under section 28 of the Act'. It is not in dispute that the Registrar in the present case was properly delegated, under s 28, the function of hearing and determining an application for termination of the residential tenancy agreement under s 71 of the RT Act.
Arguably, an order made under that section will have been made without jurisdiction or in circumstances that might have justified an order of certiorari (for the purposes of s 36 of the Magistrates Act) if the procedural pre‑conditions for the making of the order have not been met or the tenant has been denied natural justice. The latter was the basis on which Pritchard J considered the Court could hear a review application under s 36 of the Magistrates Act, having regard to the provisions of s 26(2) of the RT Act: see [14] above.
Mr Iskander and the applicant were aware of the decision in Miles - a copy of the decision was included in the materials provided to the court. During the course of discussion about the decision on 27 February 2019, Mr Iskander indicated that the applicant wished to commence proceedings in this Court pursuant to s 36 of the Magistrates Court Act for the review of the Termination Order. The application for review would be made on the ground that the applicant was denied natural justice because she was not served with the application made by Mr Robson to the Magistrates Court, and was not given an opportunity to be heard in relation to whether an order should be made terminating her tenancy agreement.
In Miles, Pritchard J identified two bases on which this Court could have jurisdiction to preserve the status quo in such circumstances.[6] The first is the Court's power to grant an interlocutory injunction to prevent the eviction, as a means of protecting the applicant's right in the proposed proceedings for review under s 36 of the Magistrates Court Act. The second is the Court's power to suspend an enforcement order made under the CJE Act, pending the Court's determination of an appeal from the order under the RT Act, [7] which her Honour appears to have considered included a review of such an order.
[6] Miles [31] ‑ [34].
[7] Civil Judgments Enforcement Act 2004 (WA) s 15(1).
In respect of the first basis, her Honour referred to O 52 r 1(3) of the Rules of the Supreme Court 1971 (WA), which provides:
In the case of urgency a person who intends to begin proceedings may make an application for the grant of an injunction before the issue of the writ or originating summons by which the cause or matter is to be begun, and the Court may grant the application on terms providing for the issue of the writ or originating summons, and such other terms, if any, as the Court thinks fit.
As Her Honour noted, the usual practice is that order made in circumstances of the kind described in that rule will usually be subject to a condition that the plaintiff (or applicant) file originating proceedings in the Court.[8]
[8] Miles [33].
In respect of an application for suspension under s 15 of the CJE Act, the Court may make such an order if there are special circumstances that justify doing so[9] and it may deal with the application for suspension in the absence of the person entitled to the benefit of the judgment if it is just to do so.[10]
[9] Civil Judgments Enforcement Act 2004 (WA) s 15(3).
[10] Civil Judgments Enforcement Act 2004 (WA) s 15(2).
In Miles, Pritchard J concluded that she had jurisdiction on both bases, but granted an interlocutory injunction, although she would have granted a suspension order pursuant to s 15 of the CJE Act if that was the proper basis for relief.[11]
[11] Miles [40].
It is not clear to me that I could make an order under s 15 of the CJE Act when an appeal (or s 36 review proceeding) has not yet been commenced, as there is no equivalent of Order 52 r 1(3) of the Rules of the Supreme Court in the CJE Act. However, I was satisfied on the same basis as Pritchard J in Miles that I had jurisdiction to grant an interim interlocutory injunction on the condition that originating proceedings would be commenced for a review under s 36 of the Magistrates Court Act.
The factual basis for the Application
The Residential Tenancy Agreement ('the Agreement') between the applicant and Mr Robson ('the lessor') was for a fixed term starting on 24 November 2018 and ending on 22 November 2019. The applicant was required to pay rent of $350 per week, payable fortnightly starting on 24 November 2018. The Agreement stipulated that payment of the rent was to be made into a specified account, the details of which were set out, and the payment reference was to be '37 Bertram'. The applicant was also required to pay a security bond of $1,400 on signing the Agreement.
Mr Iskander informed me that the basis on which the lessor sought to terminate the Agreement was that the applicant is in breach of the Agreement by failing to pay outstanding rent. He did not provide details as to the outstanding amount, but said that the applicant has been willing to pay the debt, although there is no mention of that in the applicant's affidavit. Mr Iskander informed me that the applicant has not been able to make the payment because the property agent engaged by the lessor has not provided the banking details.
The documents that were annexed to the applicant's affidavit included the Termination Order and the Enforcement Order, an application by the applicant in the Magistrates Court to vary or set aside the order (under s 17 of the RT Act) and an application made by the applicant to suspend the enforcement of the Termination Order, pursuant to pt 3 div 3 of the CJE Act. The documents reveal the following sequence of events.
On 22 January 2019, the lessor filed an application for the Termination Order, pursuant to s 71 of the RT Act. The application was heard and the orders were made on 20 February 2019. The second order was that the Termination Order[12] 'shall operate forthwith'. The applicant was ordered to pay the cost of making the application. The final order was that the lessor 'abandons the balance of the orders sought under the application, electing to pursue those claims (if required) under fresh proceedings'. As the application was not part of the materials produced by the applicant in the present proceedings, it was not necessary, at the hearing on 27 February 2019, to consider what the other orders were.
[12] Described in the Termination Order as 'The Order for Termination of the Agreement and Possession of the Premises'.
On 21 February 2019 the lessor obtained the Enforcement Order, which authorised and commanded the Sheriff of Western Australia and the Bailiff delegate at Perth 'to enter [the premises], with force if necessary, evict persons not entitled to be there, take possession of the property and deliver it into the [lessor's] possession.'
On 25 February 2019, the applicant made an application to the Magistrates Court, pursuant to s 17 of the RT Act to set aside the Termination Order, essentially on the basis that the hearing proceeded in her absence when she had not been served with the application for the Termination Order.
Section 17 of the RT Act provides:
(1)A person who is or was a party to any proceedings on an application under this Act may apply to a competent court for an order varying or setting aside an order made in those proceedings if the application was heard in the person's absence.
(2)An application to vary or set aside an order, other than an order under section 84, must be made within 14 days after the making of the order.
Section 84 has no application in this case.
'Competent court' is defined in s 3 of the RT Act to mean, in relation to an application made under that Act, 'a court that under section 12A or 13 has jurisdiction to hear and determine the application'. For present purposes, the competent court under s 12A is the Magistrates Court.
I note that the application under s 17 was not made by the applicant within 24 days after the making of the Termination Order. However, the application was accepted for filing upon payment of the appropriate fee. The applicant's explanation for the delay is that she was first made aware of the hearing that took place on 20 February 2019 when she received an email from the lessor's 'Acting Agent' ('the lessor's agent') that evening, and that up until Friday, 22 February 2019, she had not received any notification of the application for the Termination Order. She states that she attended the Perth Magistrates Court on Monday, 25 February 2019 and sought a copy of the Termination Order. She states that she then became aware that the lessor's agent had also applied for the Enforcement Order and that such an order had been issued on 21 February 2019.
The application for an order setting aside the Termination Order sets out a number of reasons why that should occur. In relevant respects, they may be described as follows:
(1)The Termination Order was made in the applicant's absence;
(2)The information presented in the applicant's absence was misleading;
(3)The 'Acting Agent' (being the property manager engaged by the lessor) failed to comply with the requirements of the RT Act 'with regards to service of documents'. The application claims that 'as a result the application [for the Termination Order] is ineligible'.
(4)The process whereby the Enforcement Order was obtained was made in haste, 'aimed at disadvantaging the [applicant] and to ensure that due process is not afforded the [applicant]'; and
(5)The applicant 'disadvantaged and requires an attending translator to assist with the matter'.
At the time of the application for injunctive relief, no date had been set for the hearing of the application to set aside the Termination Order.
On 26 February 2019, the applicant applied for an order to suspend the enforcement of all or part of the judgment in matter PER/RSTN/1023/2019, being the proceedings for the Termination Order ('the Suspension Application'). In other words, she applied to suspend the enforcement of the Termination Order pursuant to the Enforcement Order. The Suspension Application was supported by an affidavit sworn by the applicant on 26 February 2019, in which she refers to the application to set aside the Termination Order and states that the claimant (the lessor) '[has] been granted a seizure order and intends to enforce before hearing'. The Suspension Application was listed for a hearing on Tuesday, 12 March 2019 at 2.15 pm at the Perth Magistrates Court.
The other facts of relevance, as deposed by the applicant and Mr Iskander and revealed in the other documents filed with the applicant's affidavit, can be summarised as follows.
The applicant states that:
(1)at no stage did she receive notification to attend a hearing before the Perth Magistrates Court on 20 February 2019; and
(2)at no stage did she receive any claims or forms from the lessor 'for the basis of the application made for Termination before the Perth Magistrates Court'.
The applicant forwarded the application to set aside the Termination Order to the lessor's agent by email on 25 February 2019 and sought an undertaking that the Enforcement Order would not be executed until the application was heard in the Magistrates Court. In the email, the applicant stated that if the undertaking was not given by close of business that day, the applicant would apply to this Court for an injunction.
On 26 February 2019, in the morning, the lessor's agent informed the applicant that they disagreed that the applicant had 'any prospect of overturning the Magistrates Court Order'. No undertaking was given as sought by the applicant.
On the afternoon of 26 February 2019, the applicant sent a further email to the lessor's agent, attaching the Suspension Application, and informing the agent that the application was scheduled to be heard on 12 March 2019. Again the applicant sought an undertaking that the lessor would not act on the Enforcement Order, and indicated that if the undertaking was not given, the applicant would apply for an injunction to prevent the applicant's eviction from the premises before the hearing of the application to set aside the Termination Order.
The applicant states that the Suspension Application (Form 9) was served on the lessor's agent on 27 February 2019. She claims that she made attempts to call the agent and sent the agent emails seeking the undertaking not to act on the Enforcement Order before the hearing of the Suspension Application, but no undertaking had been given by the lessor.
The applicant further states that on 25 February 2019, she contacted Baycorp (the Bailiff delegated by the Sheriff to carry out the Enforcement Order) and was informed by someone there that 'the only way they will not enforce the [seizure of the premises under the Enforcement Order] is if directed by the Creditor/Owner or if an order instructing otherwise such as an injunction.'
In his affidavit, Mr Iskander also states that he called the lessor's agent on 25 February 2019 seeking an undertaking on behalf of the applicant that the seizure of the premises under the Enforcement Order would not occur until the application to set aside the Termination Order was heard in the Magistrates Court. He states that no undertaking was forthcoming.
Mr Iskander further states that on 27 February 2019, at approximately 10.05 am, when a representative of Baycorp came to the front door and explained that he was 'intending to enforce a Seizure Order for the property within 24 hours' and that the applicant and Mr Iskander were to vacate the property. Mr Iskander states that he then showed the Baycorp representative the Suspension Application, indicating it was to be heard on 12 March 2019. He states that the representative indicated that the Suspension Application was just an application and the applicant would need to call the Court Registrar and get an order from the court. I take this to be a reference to the Magistrates Court Registrar. Mr Iskander states that the Baycorp representative concluded by saying, 'You are to be out by 10.30 am tomorrow or you will be evicted.' He states that he then called the 'Court Registrar' and was told there was 'nothing they could do to stop the enforcement of the Seizure Order until the Suspension Hearing takes place on the 12th March'. The urgent application for the injunction was made following that advice, on the understanding that the Bailiff would evict the applicant and her family from their home at 10.30 am on 28 February 2019.
At the hearing, Mr Iskander indicated that the family had no residence to go to if they were evicted from the premises the following day.
The merits of the Application
The principles in relation to the grant of an interlocutory injunction are well established.[13] They were summarised by Newnes JA in Mineralogy Pty Ltd v Sino Iron Pty Ltd as follows:[14]
The two main enquiries that arise are whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The first inquiry as to a 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks. The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours the grant of such relief are related, not independent, questions: Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59 [70].
[13] See, eg, Horsman v MG Kailis Pty Ltd [2009] WASC 166 [90] (Beech J).
[14] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87].
As was pointed out by Pritchard J in Miles,[15] in the context of an application such as in this case, the first question may be framed in terms of whether the applicant has established that there is a serious question to be tried in the pending proceedings (or in proceedings to be commenced) and there is sufficient likelihood that the applicant will be entitled to relief in those proceedings if the evidence remains as it is. In relation to the second question, in order to demonstrate that the balance of convenience favours the grant of an injunction, the applicant must first show that, if the injunction is not granted, she will suffer irreparable injury for which damages will not be an adequate compensation.[16]
[15] Miles [35].
[16] Miles [35].
The affidavits on which the applicant relies do not address all of the matters that may be relevant in the determination of an application for review of the Termination Order under s 36 of the Magistrates Court Act. The notification of the hearing of 20 February 2019 would in the ordinary course have been sent by the Magistrates Court, and the materials do not include all of the documentation that one would expect to be on the Magistrates Court file concerning that issue. However, if it is the case, as the applicant has deposed, that she was not served with notice of the proceedings in the Magistrates Court, or given the opportunity to be heard in relation to whether an order should be made to terminate the Residential Tenancy Agreement and requiring her to give up possession of the premises, it would appear that she has an arguable case that she was denied natural justice in respect of the proceedings before the Magistrates Court.
Apart from the question of notification of the hearing, there is another matter which goes to the question of the Magistrates Court's jurisdiction to make the Termination Order, which would be relevant on any application for review under s 36 of the Magistrates Court Act. As was noted by Pritchard J in Miles,[17] under s 71(2) of the RT Act, before the Court makes an order terminating the agreement and for possession of the premises, the Court must be satisfied that notice of the termination has been given by the lessor to the tenant, and that the notice complied with, and was given in accordance with, the RT Act. Whether that notice was given in this case would be a matter for evidence in the course of the applicant's foreshadowed application to this Court for a review of the Termination Order. At the time of the hearing of the application for the injunction, the only evidence before the Court was the applicant's evidence that she was not given any notice at all of the proceedings before the Magistrates Court or 'the claims or forms for the basis of the application made for Termination'.
[17] Miles [38].
Turning to the balance of convenience, and whether damages would be an adequate alternative remedy, as I have already observed, I was informed at the hearing that, if the applicant and her family were evicted the following day, they would have nowhere else to live. I was satisfied that was a compelling basis for concluding that the balance of convenience favoured the grant of an interlocutory injunction, and that damages would not be an adequate alternative remedy. Furthermore, while giving due weight to the rights of the lessor to have possession of his property if there has been a breach of the Agreement that justified termination, the period for which I intended to adjourn the hearing of the application for an interlocutory injunction was relatively small and would involve a modest financial loss for the lessor from his inability to lease the premises to another tenant, which could be alleviated by an undertaking from the applicant to pay damages, which she was prepared to provide.
I was satisfied, therefore, that an interlocutory injunction should be granted on an interim basis. The order was that 'an interim interlocutory injunction is granted preventing enforcement of the Property (Seizure and Delivery) Order made in the Magistrates Court on 21 February 2019 in respect of [the premises], pending further hearing of the application on Thursday, 7 March 2019 at 2.15 pm, on notice to the defendant [i.e. Mr Robson] and on the following conditions:
(1)The plaintiff [i.e. the applicant] is to file the originating motion for the interlocutory injunction and the supporting affidavits by 4 pm on Thursday, 28 February 2019;
(2)The plaintiff is to file in in the Supreme Court by 4 pm on Thursday, 28 February 2019 an application for review of the [Termination Order] made by the Magistrates Court on 20 February 2019; and
(3)The plaintiff is to serve the defendant, Sean Robson, each of the documents referred to in the first and second conditions of this order by 4 pm on Friday 1 March 2019.
I also gave the parties liberty to apply to change the time or date of the hearing.
The application for the interlocutory injunction was adjourned accordingly to 7 March 2019.
Although the orders did not specify, as a condition, the filing of an undertaking as to damages, the applicant had given an undertaking to do so.
The service of the orders on the defendant would put him on notice that the application for an interlocutory injunction was to be further heard on 7 March 2019, at which time the defendant would have the opportunity to make submissions in relation to whether the interlocutory injunction should be continued or discharged.
Proceedings on 7 March 2019
The issue on 7 March 2019 was whether the interim interlocutory injunction should be extended.
The affidavits on which the applicant sought to rely at the hearing on 27 February 2019 were sworn by her and Mr Iskander respectively on 28 February 2019 and filed on 1 March 2019. Also on 1 March 2019, the applicant filed a Notice of Originating Motion seeking, pursuant to s 36 of the Magistrates Court Act, a review of the Termination Order made on 20 February 2019, on the basis that she was denied natural justice. Attached to the Notice of Originating Motion was the Notice of Originating Motion ('the original Notice') applying for an interlocutory injunction on which the applicant had relied on 27 February 2019, but which had not been filed at that stage. The continued use of the original Notice is inapt, given that the interlocutory injunction must relate to the application for review under s 36 of the Magistrates Court Act. However, I regarded the filing of the original Notice as an application for an interlocutory injunction in the proceedings for review commenced by the Notice of Originating Motion filed on 1 March 2019.
On 5 March 2019, Mr Robson filed three affidavits, being two affidavits affirmed by him on 4 and 5 March 2019 respectively, and an affidavit affirmed by his wife, Ms Arcus, on 4 March 2019. For the purposes of these reasons, it is not necessary to set out the evidence in those affidavits in detail. It will be sufficient to identify a number of salient points.
The applicant's absence
As I noted earlier, the applicant did not appear at the hearing on 7 March 2019, which took place at 2.15 pm. That morning, the court had received a request made on behalf of the applicant for her to appear by video link from Melbourne. I refused that request on the basis that the applicant had been told at the conclusion of the proceedings on 27 February 2019 that the hearing was adjourned until 7 March 2019. Mr Iskander had mentioned that the applicant had planned a trip to Melbourne, but indicated that other arrangements would have to be made. Further, in light of information contained in the affidavits filed by Mr Robson, to which I will come in due course, I considered that it was necessary for the applicant to be present in person. This was, after all, her application. In the circumstances, I did not consider it necessary to enquire about the feasibility of a video link to Melbourne at short notice.
At the commencement of the hearing on 7 March 2019, Mr Iskander informed the court that the applicant was in Melbourne, having been unable to get a flight back to Perth in time for the hearing. He suggested this was due to conditions in Melbourne. For the reasons I outlined in the preceding paragraph, I did not consider that to be an adequate explanation for the applicant's absence.
Mr Iskander sought leave to continue to appear as a McKenzie friend for the applicant and to speak on her behalf. Mr Robson objected to that course on the basis that it is only in exceptional circumstances that a McKenzie friend will be allowed to make oral submissions on behalf of a party, and the applicant had not established exceptional circumstances in this case. While there was force to that argument, I concluded, because of practical necessity, that leave should be granted to Mr Iskander to speak on behalf of the applicant on a limited basis. As will appear below, the practical reality is that the applicant and Mr Iskander have acted together in the events relevant to these proceedings, and there were questions I needed Mr Iskander to answer in order to decide upon the appropriate orders.
Defendant's submissions
Mr Robson filed detailed and helpful submissions in support of the orders sought by him, summarised as follows:
In summary, the defendant respectfully requests that this Court:
(a)in respect of the Review Application:
(i)dismiss the Review Application on the basis that the Supreme Court does not have jurisdiction or the Review Application is an abuse of process; or alternatively
(ii)program the hearing of the Review Application at the Court's earliest convenience;
(b)in respect of the Injunction Application:
(i)dismiss the Injunction Application on the basis that the Court does not have jurisdiction;
(ii)dismiss the Injunction Application on the basis that the plaintiff has not satisfied the applicable test for the granting of an interlocutory injunction; or alternatively
(iii)if the Court grants the interlocutory injunction, make that injunction conditional on the plaintiff paying a sum into Court as security for the undertaking as to damages.
Mr Robson notes that the applicant has not paid any rent or the bond under the Agreement. In essence, his argument is that this is a simple case, in that –
(1)the Applicant breached the Agreement by failing to pay any rent, after being given numerous opportunities to pay;
(2)the lessor obtained an eviction order after due process in the Magistrates Court, having given the applicant notice of termination; and
(3)the lessor then obtained an enforcement order after due process.
Mr Robson submits, on the basis of the evidence in his affidavits, that the applicant and Mr Iskander have been deceitful and have sought to frustrate the Termination Order by abusing the processes of this Court.
Mr Robson's submission that the Court does not have jurisdiction to grant an interlocutory injunction is dependent on his submission that the court does not have jurisdiction in respect of the review application under s 36 of the Magistrates Court Act, or alternatively the review application is an abuse of process. In either case, if the application for review under s 36 is dismissed, there would be no proceeding in this Court in respect of which an interlocutory injunction could be granted.
Mr Robson's argument that the court does not have jurisdiction in respect of the review application is in fact an argument about the merits of the application, in that he submits the applicant has not been denied natural justice. As I noted above, in outlining the law, this Court does have jurisdiction to review the Termination Order where a denial of natural justice is alleged. The question of whether the applicant has been denied natural justice will need to be determined on the evidence concerning whether the applicant was given notice of the proceedings in the Magistrates Court, about which there would appear to be a dispute.
Mr Robson's argument in relation to abuse of process is that the Magistrates Court is already seized of the matter, both in terms of whether the Termination Order should be set aside because of a denial of natural justice to the applicant and whether the Enforcement Order should be suspended pending the review in the Magistrates Court. Mr Robson submits that the Magistrates Court is the more appropriate court in which to have the relevant issues determined, as the legislature has provided a statutory scheme for an appeal under the RT Act from an order made by a Registrar and for the suspension of an enforcement order under the CJE Act.
As I indicated to Mr Robson during the hearing, I am inclined to agree that, if the applicant pursues her appeal against the making of the Termination Order in the Magistrates Court, it would be an abuse of process to continue with the review application in this Court. However, the proceedings in the Magistrates Court would be frustrated if the applicant were to be evicted pursuant to the Termination Order before the hearing of the application to suspend the Enforcement Order.
Although it was not appropriate, at the hearing of 7 March 2019, to decide the question of whether the review application is an abuse of process, that issue is relevant to my assessment of the balance of convenience in determining whether the interim interlocutory injunction should be extended. There are a number of other factual matters arising from the affidavits filed by Mr Robson that are relevant to that assessment.
Factual matters arising from the defendant's affidavits
Mr Robson's first affidavit relates the history of the leasing of the premises to the applicant. It attaches the applicant's rental application in respect of the premises, her bank statement provided in support of the application, the Agreement, email correspondence both before and after the Agreement was executed and documents, including court forms, relating to the termination proceedings.
The Application to Rent Residential Premises ('Application to Rent') nominated both the applicant and Mr Iskander as applicants for the tenancy. However, the Agreement ultimately was between Mr Robson and only the applicant. I have set out at [25] above the terms of the Agreement relating to the fixed term, rent and bond.
The Agreement provided for the 'giving of notices and information by electronic means' under the Electronic Transactions Act 2011. In respect of both the lessor and the tenant the word 'Yes' was circled to signify each person's agreement to notices and information been given by email. Clause 51C.3 of the Agreement provided that a notice under the agreement may be given to a person, 'if the person has agreed under Part A to the electronic service of notices – by sending a notice to the email address or facsimile number given in Part A'. Such a notice would include a notice of termination given by either the lessor or the tenant under clause 40 (non‑renewal) or clause 42 (termination because of a breach of the Agreement).
A large part of Mr Robson's affidavit and the attachments deals with the notice of termination and the termination proceedings in the Magistrates Court, and, in particular, the service of the notice of termination on the applicant and the steps that were taken to notify her of the court proceedings. Contrary to the assertions that were made by the applicant during the hearing of 27 February 2019, Mr Robson claims that the applicant was informed of the hearing of 20 February 2019 by email sent to the applicant's email address by the property manager he had engaged to deal with the applicant on his behalf, Ms Holman of Stellar Park Property Group (referred to above, adopting the applicant's terminology, as the lessor's agent).[18] That email (attachment SR-17) was sent to the applicant's email address on 30 January 2019 and attached an electronic copy of the Form 12 Application for Court Order dated 22 January 2019 and bearing the stamp of the Magistrates Court of Western Australia, being the application for the Termination Order. Other email exchanges evidenced by copies attached to Mr Robson's first affidavit indicate that the applicant was receiving emails at that address and responding by using that account, including on 29 January 2019, the day before the Application for Court Order was sent to her.[19]
[18] Affidavit of Sean Robson dated 4 March 2019, pp 10 - 11.
[19] Affidavit of Sean Robson dated 4 March 2019, Attachment SR-16
Mr Robson's second affidavit refers to a conversation he had on 5 March 2019 with an officer at the Magistrates Court in which he was informed by the officer that the application for the Termination Order was posted by the court to the address of the 'listed address', being the premises, on 24 January 2019.[20] As I indicated to Mr Robson during the hearing on 7 March 2019, while the Court can have regard to hearsay evidence, if the mailing of the notice to the applicant remains in dispute, it will be necessary for Mr Robson to obtain direct evidence of that fact.
[20] Affidavit of Sean Robson dated 5 March 2019, p 1.
The applicant did not produce the email of 30 January 2019 in the materials on which she relied on 27 February 2019. As at the hearing of 7 March 2019, she had not provided a response to Mr Robson's affidavit.
Matters arising concerns about the applicant's good faith
There are other matters that emerge from Mr Robson's first affidavit that raise concerns about whether the applicant has acted in good faith in these proceedings, and which will require further consideration.
The first concerns representations made by the applicant to Mr Robson concerning her (and Mr Iskander's) good standing as a residential tenant. The Application to Rent provided details of the applicant's previous rental history. It referred to a property in Victoria Park and stated that rent had been paid to a property manager, namely 'Victoria Park Realty (Andrew Ryma)'. Mr Robson states, in his first affidavit, that, before entering into the Agreement with the applicant, he contacted the number provided by the applicant for the property manager and eventually spoke with a person who returned Mr Robson's call and identified himself as Mr Ryma.[21] Mr Robson states that the person confirmed that the applicant and Mr Iskander had lived at the premises in Victoria Park, and said that they had 'paid rent and were great tenants'.[22] Mr Robson states that, after the dispute arose with the applicant, as a result of the applicant's failure to pay the bond or any rent, he tried again to contact 'Andrew Ryma' of 'Victoria Park Realty', but 'the company does not exist or no longer exists'.[23] He states that a 'Google search will return no corresponding results'.[24]
[21] Affidavit of Sean Robson dated 4 March 2019, p 4 ‑ 5.
[22] Affidavit of Sean Robson dated 4 March 2019, p 4.
[23] Affidavit of Sean Robson dated 4 March 2019, p 13.
[24] Affidavit of Sean Robson dated 4 March 2019, p 13.
Significantly, after the Agreement had been signed, Mr Robson received an email from the company with which he had advertised for a tenant for the premises online. The company passed on an email it had received from a person (who was later identified by Mr Robson to be Ms G) who wished to inform him of certain matters concerning the male tenant who had moved into the premises.[25] Ms G wrote that the male person had rented a property leased by her and her husband, had failed to pay any rent for the nine months he had lived at her property, owed them $12,000 and had used court proceedings in the Magistrates Court and the Supreme Court to exploit 'errors … in the tenancy protocol'. Mr Robson states that he subsequently contacted Ms G.[26] She told him that the applicant and a person she referred to as 'Shane', but whom she was able to identify as Mr Iskander, because she had followed them to the premises when they moved, had rented a property from her in Maylands. She said they had stopped paying rent, and when she tried to evict them, they made numerous court applications, including before the Supreme Court. She said she had followed them to the premises because she wanted to warn the new landlord about the issues she had experienced. She had found the premises on the internet and had contacted the online company.
[25] Attachment SR-5 to Affidavit of Sean Robson dated 4 March 2019.
[26] Affidavit of Sean Robson dated 4 March 2019, p 6.
Related to that matter is the fact that Mr Iskander's legal name is Shane Mervyn Hunter. It is not necessary to outline the evidence concerning that issue in Mr Robson's affidavit, or in the affidavit of Ms Arcus, which also deals with the issue, because during the hearing on 7 March 2019, Mr Iskander admitted that he is Shane Hunter.[27] More particularly, he admitted that he is the person by that name who was the appellant in Hunter v The State of Western Australia [2014] WASCA 184, which involved an appeal against convictions for fraud and stealing. The appeal was allowed in part, with the result that the appellant remained convicted of two offences, and a retrial was ordered in respect of two of the charges.
[27] For convenience, I will continue to refer to Mr Iskander by that name, as it is the name he used in the present proceedings.
Mr Iskander said that he had been known by the name Ali Iskander for 12 years, that he adopted the full name Muhammad Ali Iskander when he converted to Islam and that his marriage certificate shows that he used that name when he married the applicant in Indonesia. He claimed to have submitted 'paperwork' to 'Birth, Death and Marriages within the Northern Territory' to change his name, although the process has not been completed. However, the court proceedings in Hunter took place in 2014, and the events the subject of the charges of which he was convicted took place in 2011. At those times it would appear he was using the name Shane Hunter. Further, in light of the orders made by the Court of Appeal, it would appear Mr Iskander was to face further proceedings in the name of Shane Hunter after the appeal. Finally, although it is hearsay evidence at this stage, it is apparent that he was known by the name 'Shane' to Ms G. At the very least, there is information before the court that within the last 12 years Mr Iskander has used both names.
Another matter that raises concerns about the applicant's good faith in these proceedings relates to her claim on 27 February 2019 that she fully intended to pay the outstanding rent, but that since the involvement of Ms Holman (the agent), she has not been provided with details of a bank account into which the money should be paid. That was a significant matter weighing in the balance in favour of granting the interim interlocutory injunction on that date.
Although it was not noticed by me on 27 February 2019, and was not brought to my attention by Mr Iskander, the Agreement stipulated the bank account (with all relevant details) into which the rent was to be paid, on page 2 under the heading 'Rent'.[28] The account was in Mr Robson's name. However, as I understood the applicant's position on 27 February 2019, she was led to believe that the money would need to be paid into the agent's account once Ms Holman became involved, and she (the applicant) was not provided with the account details.
[28] Affidavit of Sean Robson dated 4 March 2019, p 30.
In his first affidavit, Mr Robson states that he engaged Ms Holman's services after his discussion with Ms G, which had raised concerns about the good standing of the applicant and Mr Iskander as tenants.[29] It is apparent from emails attached to Mr Robson's first affidavit (attachments SR‑6 to SR‑9) that, apart from making arrangements to inspect the property, Ms Holman's role from the start was to obtain payment of the bond (which was due on the Agreement being signed) and the first fortnight's rent (which was due in advance on 24 November 2018). Indeed the first email sent by her to the applicant attached a Notice of Termination for Non‑Payment of Rent, although that notice was subsequently found to be defective. Significantly for present purposes, on 4 December 2018 and 10 December 2018 (attachments SR-7 and SR-8), Ms Holman wrote to the applicant by email requesting payment of outstanding rent and providing details of the bank account into which the money was to be paid. In the absence of any explanation from the applicant, the emails contradict her claim that she had not paid the outstanding rent because she was not informed of the bank account details. I will return below to my discussion with Mr Iskander during the hearing of 7 March 2019 concerning this issue.
[29] Affidavit of Sean Robson dated 4 March 2019, p 6 - 7.
The final matter raised by Mr Robson in his first affidavit, which brings into question the need for Mr Iskander to appear as a McKenzie friend for the applicant, is that in his initial dealings with the applicant, she 'spoke perfect English and never said anything about not being proficient or confident in English'.[30] It may be that the applicant would still require assistance in legal proceedings, but I am left to wonder whether the applicant's responses to my questions on 27 February 2019 genuinely reflected her ability with English.
[30] Affidavit of Sean Robson dated 4 March 2019, p 4 [13(a)].
In considering the matters outlined in this section, I am mindful that there may be explanations for some of those matters that do not reflect adversely on the applicant's credit. It may be, for instance, that Victoria Park Realty and Mr Ryma did exist, but have gone out of business. The lack of an Internet presence is somewhat perplexing, but to draw conclusions from that fact would be speculative.
As for the matters raised by Ms G, Mr Robson states that, while she wanted to bring those matters to his attention, she has said she does not wish to become involved in these proceedings. It may be, therefore, that those matters will not rise above hearsay. There is no independent evidence before me of other proceedings under the RT Act or for an injunction in this Court involving the applicant or Mr Iskander.
However, the evidence which tends to rebut the applicant's claim that she did not know into which account she should pay the rent appears to be cogent and directly affects the applicant's credit and the question of whether she should be granted equitable relief.
During the hearing, I asked Mr Iskander why the rent had not been paid. He made a submission to the effect that Mr Robson had the opportunity to have 'an enforceable order' made in the Magistrates Court for the payment of the rent. I pointed out to him that if money was available to pay in response to such an order, then it could be paid immediately to Mr Robson as rent, given the applicant's obligation under the Agreement. Mr Iskander then said that it was their intention to pay the rent, but the agent (Ms Holman) had refused to provide the bank details. In light of the evidence to which I have referred above, that claim is false. In any event, the applicant at all times had the details of Mr Robson's bank account specified in the Agreement.
In order to avoid any uncertainty about the account into which the rent is to be paid by the applicant, it was identified at the hearing by referring to the account details specified in Ms Holman's emails.
Assessment of the balance of convenience
Notwithstanding the concerns raised by the matters outlined in the preceding section, especially the last-mentioned matter, it remained the case at 7 March 2019 that there was a serious question to be tried in the proceedings for the application to review the Termination Order, in that the applicant had sworn that she did not receive notification of the application in the Magistrates Court for that order. While her case in that regard may well be weakened by the materials produced by Mr Robson, in particular the email of 30 January 2019 from Ms Holman to the applicant, the applicant had not yet responded to that material.
The proper approach in a case such as this, which might be thought to be finely balanced, was identified by Brereton J in Farahbakht v Midas Australia Pty Ltd (No 2) [2006] NSWSC 1323 at [28] where his Honour noted that assessment of the balance of convenience involves 'balancing the risk that greater injustice will be wrought by wrongly refusing an injunction than will be occasioned by wrongly granting one'.[31]
[31] Referring to Cayne v Global Natural Resources plc[1984] 1 All ER 225, 237 (May LJ).
As I said above, a hearing had been listed for Tuesday, 12 March 2019 in the Magistrates Court for that court to deal with an application for an order suspending the Enforcement Order. The factual matters on which Mr Robson relied, in particular the evidence concerning the giving of notice to the applicant of the application in the Magistrates Court for the Termination Order, would be relevant in the proceedings for a suspension order. Moreover, the decision of the Magistrates Court in those proceedings would weigh significantly in the future conduct of these proceedings. If the Magistrates Court were to suspend the operation of the Enforcement Order, proceedings for an interlocutory injunction would become otiose. If the Magistrates Court refused the application, the applicant would have a significant hurdle to overcome in any application for an interlocutory injunction either because it would be an abuse of process or because the decision of the Magistrates Court ought to be given significant weight, given that it is the forum given responsibility under the statutory scheme of the CJE Act for determining whether enforcement should proceed.
However, in the meantime there remained a process in this Court (the review application) in respect of which the plaintiff had an arguable case and which provided a foundation for the issue of an interlocutory injunction to protect the applicant's rights and prevent the proceedings from becoming futile. There has been no suggestion in these proceedings that the presence of the applicant and her family in the premises is in any way compromising the integrity of the premises or Mr Robson's ability in due course to rent them to another tenant. His loss resulting from any delay in eviction of the applicant would be confined to loss of rent. That could be mitigated by minimising the period of any interim injunction - by adjourning these proceedings to the day after the hearing in the Magistrates Court - and by the imposition of a condition that the applicant pay into court a sum of money equal to the rent that would be due for the period between 7 March 2019 and the resumption of these proceedings for final determination of the application for an interlocutory injunction. Indeed, Mr Robson requested that I make such an order if I granted the interim injunction.
Finally, the applicant had given a written undertaking as to damages, dated 26 February 2019, in respect of any injunction or interim injunction made by the Court. That undertaking had to be amended, because it referred to the undertaking being by 'the plaintiff or defendant (as the case may be)', which was likely due to the use of a pro forma precedent. The reference to the defendant was deleted. The undertaking was a further factor which, to some extent, weighed in favour of extending the interim injunction.
Given the relatively short time for which the interim injunction would be extended, and the ability to mitigate any damages Mr Robson might suffer, this was a case, in my opinion, in which a greater injustice would be wrought by wrongly refusing an injunction, which would have rendered futile the applicant's endeavour to have the Termination Order set aside because of a denial of natural justice, than would be occasioned by wrongly granting an interim injunction.
Conclusion on 7 March 2019
Having regard to all of the circumstances, therefore, I concluded that the balance of convenience justified extending the interim interlocutory injunction until Wednesday, 13 March 2019. However, the extension was granted on condition that the applicant pay into court the sum of $300, being the damages Mr Robson would suffer, by way of loss of rent, by the granting of the extension.
Further, as I said to Mr Iskander during the hearing, if the applicant pursues the remedy in the Magistrates Court, the further prosecution of the application for an interlocutory injunction in this Court would likely be found to be an abuse of process. Similarly, if the applicant pursues the appeal in the Magistrates Court against the Termination Order made by the Registrar, it would be difficult to avoid the conclusion that the application for review under s 36 of the Magistrates Act would also be an abuse of process. In those circumstances, it would be expected that the applicant would discontinue the proceedings in this court.
Accordingly, the orders I made on 7 March 2019 were:
(1)The application for the interlocutory injunction is adjourned to 10.30 am on Wednesday, 13 March 2019;
(2)Subject to the plaintiff paying into court the sum of $300 by 10 am, Friday, 8 March 2019, the interim injunction made on 28 February 2019 is extended until Wednesday, 13 March 2019 at 10.30 am; and
(3)The statement of undertaking dated 26 February 2019, signed by the plaintiff, is amended to delete the reference to, 'or defendant (as the case may be)'.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Associate to the Honourable Justice Fiannaca8 APRIL 2019
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