Schaefer v Clerk of Magistrates Court, Fremantle
[2011] WASCA 223
•14 OCTOBER 2011
SCHAEFER -v- CLERK OF MAGISTRATES COURT, FREMANTLE [2011] WASCA 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 223 | |
| THE COURT OF APPEAL (WA) | 14/10/2011 | ||
| Case No: | CACV:112/2011 | 7 OCTOBER 2011 | |
| Coram: | NEWNES JA | 7/10/11 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ERIC JOSEPH SCHAEFER CLERK OF MAGISTRATES COURT, FREMANTLE DIRECTOR GENERAL OF THE DEPARTMENT OF HOUSING |
Catchwords: | Practice and procedure Application for review of decision of Magistrates Court dismissed Appeal against dismissal Application for stay of judgment dismissing application for review No purpose in granting stay No grounds for stay |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SCHAEFER -v- CLERK OF MAGISTRATES COURT, FREMANTLE [2011] WASCA 223 CORAM : NEWNES JA HEARD : 7 OCTOBER 2011 DELIVERED : 7 OCTOBER 2011 PUBLISHED : 14 OCTOBER 2011 FILE NO/S : CACV 112 of 2011 BETWEEN : ERIC JOSEPH SCHAEFER
- Appellant
AND
CLERK OF MAGISTRATES COURT, FREMANTLE
First Respondent
DIRECTOR GENERAL OF THE DEPARTMENT OF HOUSING
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
Citation : SCHAEFER v HOUSING AUTHORITY [2011] WASC 222
File No : CIV 1786 of 2011
(Page 2)
Catchwords:
Practice and procedure - Application for review of decision of Magistrates Court dismissed - Appeal against dismissal - Application for stay of judgment dismissing application for review - No purpose in granting stay - No grounds for stay
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : No appearance
Second Respondent : Mr R E Lyall
Solicitors:
Appellant : In person
First Respondent : No appearance
Second Respondent : Department of Housing and Works - Legal Department
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 NEWNES JA: This is an application by the appellant for urgent interim relief. The appellant seeks a stay of the order of Murray J of 26 August 2011, dismissing the appellant's application to set aside certain orders made in the Magistrates Court under the Residential Tenancies Act 1987 (WA) (the Act). On 7 October 2011, I dismissed the application. These are my reasons for doing so.
Background
2 The proceedings in the Magistrates Court arose out of a dispute between the appellant and the second respondent concerning the appellant's tenancy of a unit which he rented from the second respondent. On an inspection of the unit on 1 June 2010, an officer of the second respondent formed the view that the unit was excessively cluttered. The second respondent issued a work order, dated 18 June 2010, to the appellant requiring him to 'clear excessive belongings' from the unit by 27 July 2010. It seems that the appellant did not do so and, on 16 August 2010, the second respondent issued a notice of breach alleging, in effect, that the appellant was in breach of the tenancy agreement by failing to keep the premises in a reasonable state of cleanliness: see s 38(1)(a) of the Act. The notice required him to rectify the breach within 14 days.
3 It seems that, once again, the appellant did not do so, or at least did not do so to the satisfaction of the second respondent. On 16 November 2010, the second respondent issued a notice of termination of the tenancy. The notice required the appellant to give vacant possession by 29 November 2010. The appellant did not vacate the unit and the second respondent then sought, and on 30 March 2011 obtained, orders in the Magistrates Court, under s 15 of the Act, that the appellant's tenancy of the unit was terminated forthwith and that the appellant was to vacate the unit by 4.00 pm on 29 April 2011.
4 Again, the appellant did not vacate the unit. Instead, on 9 May 2011, the appellant commenced proceedings in the general division of this court, under s 36 of the Magistrates Court Act 2004 (WA), to set aside the orders of the Magistrates Court, on the grounds that the magistrate had made an error of law in his interpretation of s 38(1)(a) of the Act, and further that the appellant had been denied natural justice in the hearing of the application (the review application).
The decision of the primary judge
5 The review application was heard by the primary judge on 22 August 2011. On 26 August 2011, his Honour dismissed it. On the second
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- ground, he found there was no evidence, nor was there any attempt to provide evidence, that the appellant had been denied natural justice. In relation to the alleged error in the interpretation of s 38(1)(a) of the Act, his Honour found that the Supreme Court had no jurisdiction to hear the matter. The dispute between the appellant and the second respondent fell within the exclusive jurisdiction of the Magistrates Court, pursuant to s 12A(1) of the Act and, pursuant to s 12A(2), was a minor case within the meaning of the Magistrates Court (Civil Proceedings) Act 2004 (WA). The limited right of appeal conferred by s 32(3) of the Magistrates Court (Civil Proceedings) Act against a decision in a minor case did not extend to questions of construction of the Act. In any event, s 26 of the Act provided that proceedings in the Magistrates Court were final and no order could be made by the Supreme Court in respect of such proceedings except where it was satisfied the Magistrates Court had no jurisdiction or that a party to the proceedings had been denied natural justice.
6 It was, on the view he reached, unnecessary for his Honour to determine the merits of the appellant's contention that the magistrate erred.
The application for interim relief
7 On 16 September 2011, the appellant filed an appeal notice in this Court. On 5 October 2011, the appellant made the present application, seeking a stay of the order of the primary judge dismissing the review application, pending the determination of the appeal. The application was supported by an affidavit sworn on 5 October 2011. It appears from the affidavit that the appellant was evicted from the unit on 13 September 2011 but his belongings have remained there. The second respondent has told him that he has until 10 October 2011 to remove his belongings from the unit, failing which it will arrange for a contractor to remove and store them, and it will then move to dispose of the goods under s 79 of the Act.
8 The appellant says in his affidavit that he does not have the financial resources to store his belongings and, by this application, he seeks to prevent the second respondent from acting on its ultimatum.
The disposition of the application
9 The question of whether the decision of the primary judge was a judgment to which s 15 of the Civil Judgments Enforcement Act 2004 (WA) applies was not raised on the hearing of the application and I do not think it is necessary to consider the point. It would seem that, if that Act does not apply, there would nevertheless be power in the court to order a
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- stay of the order, whether that power is described in terms of the inherent jurisdiction of the court or as incidental and necessary to the exercise of the express jurisdiction of the court. It was not suggested on the hearing of the application that the court did not have power to grant the stay or that the relevant principles, for present purposes, are not in substance those applicable under the Civil Judgments Enforcement Act, and it is appropriate in the circumstances of this case to proceed on that basis.
10 In my view, the application for a stay must be dismissed. In the first place, it proceeds upon the misconception that a stay of the operation of the order of the primary judge dismissing the review application would have the effect that the appellant would not be required to remove his belongings from the unit pending the determination of the appeal. That is, the effect would be to suspend the operation of the magistrate's order. A stay would not have that effect; it would not of itself affect the validity or enforceability of the magistrate's order. The grant of a stay would therefore not achieve the outcome the appellant seeks and would serve no purpose.
11 In any event, the grounds for a stay have not been made out. It is unnecessary to discuss the relevant principles in any detail. It is sufficient to say that special circumstances must be shown before a successful litigant will be prevented from enforcing the judgment it has obtained. Ordinarily, the operation of an order or judgment will be suspended only if is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where the refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. And even then it will be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
12 In this case, the appellant no longer lives in the unit but he has failed to remove his belongings from it. A substantial, if not the only, reason he has not done so is that he says he has no place to put them and he cannot afford storage charges. It is not suggested that there is some other reason the goods cannot be removed or that there is some good reason why they must remain in situ. On the material before me, I do not consider that any special circumstances have been made out.
13 In any event, I am not satisfied that the appeal has reasonable prospects of success. I have read the appellant's case in which the appellant has set out his grounds of appeal and his submissions in support. Without intending any disrespect to the appellant, they are very difficult to follow. But so far as I understand them, there is nothing which
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- suggests that the primary judge erred in the conclusion to which he came and, having considered the affidavit material and the relevant legislation, no error is apparent.
Conclusion
14 The application is dismissed.
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