Walsh Nominees WA Pty Ltd v Cook
[2017] WADC 60
•5 MAY 2017
WALSH NOMINEES WA PTY LTD -v- COOK [2017] WADC 60
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 60 | |
| Case No: | APP:54/2016 | ON THE PAPERS | |
| Coram: | SCOTT DCJ | 5/05/17 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Remission to Supreme Court refused | ||
| PDF Version |
| Parties: | WALSH NOMINEES WA PTY LTD PAMELA KAY COOK |
Catchwords: | Residential Tenancies Act 1987 action When judgment or order made Appeal to this court Whether can remit to Supreme Court |
Legislation: | Magistrates Court Act 2004 Magistrates Court (Civil Proceedings) Act 2004 Residential Tenancies Act 1987 |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PAMELA KAY COOK
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE GLUESTEIN
File No : JO 2111 of 2013
Catchwords:
Residential Tenancies Act 1987 action - When judgment or order made - Appeal to this court - Whether can remit to Supreme Court
Legislation:
Magistrates Court Act 2004
Magistrates Court (Civil Proceedings) Act 2004
Residential Tenancies Act 1987
Result:
Appeal dismissed
Remission to Supreme Court refused
Representation:
Counsel:
Appellant : Mr P Lafferty
Respondent : Mr R Cullen
Solicitors:
Appellant : Philip Lafferty
Respondent : Cullen Macleod
Case(s) referred to in judgment(s):
Nil
1 SCOTT DCJ: This is an appeal against the judgment of his Honour Magistrate Gluestein in an action (action) between the appellant as landlord and the respondent as tenant of residential premises, pursuant to a Fixed Term Tenancy Agreement (agreement).
2 In the action:
(a) The appellant lodged a General Procedure Claim (claim) in the Magistrates Court in which it sought $26,743.20 for rent and utility charges owing by the respondent.
(b) The respondent denied the appellant's claim and made a counterclaim for the return of bond monies in the sum of $5,000.
(c) Initially the respondent filed a minor case claim for that sum however that claim was dismissed on 29 May 2014 in order that the respondent's claim for the bond monies could be dealt with in the counterclaim. His Honour and the solicitors for the parties were not immediately made aware of the dismissal of the minor case claim.
(d) The claim and counterclaim were each brought pursuant to the provisions of the Residential Tenancies Act 1987 (RTA). The trial was conducted on 4 and 5 May 2015.
(e) His Honour handed down reasons for decision on 26 February 2016 in which he made findings that:
(i) the appellant repay to the respondent the bond of $5,000;
(ii) the respondent pay the appellant the sum of $1,243.20 for outstanding rent and utility charges;
(iii) there be a costs order, subject to submissions from counsel, taking into account cost orders made on 27 November 2013 and 10 November 2014.
(f) The order which was then extracted was in these terms:
(i) pronouncement of order deferred for 14 days;
(ii) liberty for the parties to lodge submissions on costs.
(g) Submissions on costs were made by the solicitors for the appellant. The solicitors for the respondent filed a minute of judgment as to the claim and counterclaim and costs.
(h) On 19 April 2016 his Honour published further reasons. By then his Honour and the solicitors for the parties were still under the misapprehension that the minor case claim was still on foot. In those reasons his Honour prefaced his determination by saying 'Based on my findings as to costs, I propose making orders, broadly as outlined below, with an invitation to counsel to have input as to the precise wording of final orders'. He then proposed orders which included:
(i) judgment for the respondent in the minor case claim for $3,756.80 being the net sum taking into account the claim for the bond of $5,000 and the sum found in favour of the appellant, namely $1,243.20;
(ii) the claim be dismissed;
(iii) judgment for the respondent on the counterclaim - but with the caveat that there would be no doubling up in favour of the respondent;
(iv) as to costs, on the claim the appellant pay the respondent's costs as from and including 30 August 2014 (reference being made by him to a Calderbank offer made by the respondent). His Honour invited final submissions in terms that 'I invite final submissions and suggest that they be in by say 6th May'.
(i) His Honour and the solicitors for the parties were then made aware of the dismissal of the minor case claim. Further submissions were made by both parties in May 2016 with respect to final orders.
(j) On 17 June 2016 his Honour published further reasons and the following proposed orders:
(i) judgment for the appellant in the sum of $1,243.20;
(ii) judgment for the respondent on the counterclaim in the sum of $5,000;
(iii) the appellant pay to the respondent the sum of $3,756.80, being the difference between the judgment amounts;
(iv) the appellant pay to the respondent 75% of the respondent's costs of the claim and counterclaim to be taxed if not agreed.
(k) Orders in these terms were signed by the registrar on 17 June 2016.
(l) The appeal notice was lodged by the appellant in this court on 6 July 2016.
3 The matter which was to be determined on the papers was whether the appeal was lodged in time or whether the appellant required leave.
4 I sought submissions from the solicitors for the parties as to whether this court had jurisdiction to entertain the appeal in light of s 26 of the RTA. Submissions were filed.
5 Because of my ultimate finding that this court does not have jurisdiction to entertain the appeal it is strictly unnecessary to deal with the question as to whether the appeal was lodged in time.
6 However, given that was the matter which was referred on the papers, I will deal with it.
Whether the appeal was lodged within time
7 Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 (MCCPA) relevantly provides:
40. Appeal from Magistrates Court to District Court
(1) A party to a case that is not a minor case may appeal to the District Court against —
(a) any order made by the Magistrates Court in the course of proceedings in the case; or
(b) the judgment of the Magistrates Court in the case.
…
(3) An appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so.
8 The solicitors for the respondent contend that the appeal notice was filed out of time because the order or judgment of his Honour was made when his Honour published his reasons on 26 February 2016, alternatively on 19 April 2016. As a consequence, the appellant requires leave to lodge the appeal.
9 I do not agree. The learned magistrate published a number of reasons for decision. Each of those reasons were, by their terms, not final. They each invited submissions from the solicitors for the parties. The orders which were finally extracted on 17 June 2016 were different from the orders previously proposed.
10 I am satisfied that the judgment or order from which the appellant lodged this appeal was, and could only have been, the orders made and extracted on 17 June 2016.
11 As a consequence the appeal notice was lodged within time.
Whether the District Court has jurisdiction to hear this appeal
12 Section 26 of the RTA relevantly provides:
(1) An order made by a court under this Act is final and binding on all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof.
(2) No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.
13 In written submissions, counsel for the appellant submitted that the appellant's claim in the Magistrates Court was for an amount which was in excess of the prescribed amount as defined in s 12 of the RTA ($10,000) and as such the matter was not therefore a prescribed dispute within the meaning of that section. As a result it is submitted that this court has jurisdiction to entertain the appeal because the appellant's claim was from the outset a General Procedure Claim and not a prescribed dispute within the meaning of s 12.
14 Counsel submitted that the object of the RTA is to deal with minor case claims in an expeditious and inexpensive manner and so the decisions made in respect of such claims are final and binding.
15 I assume from that submission that it is contended that because the appellant's claim was above the prescribed amount, the provisions of s 12A and s 26 of the RTA do not apply to it.
16 That is not a maintainable submission.
17 The claim and counterclaim were brought pursuant to the RTA. The relevant provisions of s 12, s 12A and s 13 of the RTA are as follows:
12. Terms used
In this Part —
prescribed amount means $10 000 or such other amount as may be prescribed;
prescribed dispute means any matter that may be the subject of an application under this Act, other than an application made under this Act that is, or involves, a claim for an amount over the prescribed amount, but includes an application made under clause 8 of Schedule 1, irrespective of the amount claimed.
12A. Jurisdiction over prescribed disputes
(1) The Magistrates Court has exclusive jurisdiction to hear and determine a prescribed dispute and such disputes are not justiciable by any other court or tribunal.
(2) A prescribed dispute is a minor case for the purposes of Part 4 of the Magistrates Court (Civil Proceedings) Act 2004 and the jurisdiction conferred by subsection (1) is to be exercised accordingly.
13. Jurisdiction over other disputes
(1) If an application made under this Act is, or involves, a claim for an amount over the prescribed amount, any court that is competent to hear and determine a claim founded on contract for the amount of that claim has jurisdiction to hear and determine the application.
(2) To the extent that subsection (1) confers jurisdiction on the Magistrates Court, that jurisdiction is not to be exercised in accordance with Part 4 of the Magistrates Court (Civil Proceedings) Act 2004.
18 By these sections:
(a) if a claim under the RTA is for a sum no greater than the prescribed amount then the Magistrates Court has exclusive jurisdiction to hear and determine that dispute;
(b) that dispute is a minor case for the purposes of pt 4 of the MCCPA;
(c) if the claim is for an amount in excess of the prescribed amount, then any court that is competent to hear and determine a claim founded on contract for that amount has jurisdiction to hear and determine the dispute. That jurisdiction is not to be exercised as a minor case claim.
19 The Magistrates Court is competent to hear and determine this dispute, the amount claimed being within its jurisdictional limit.
20 The provisions of s 26 of the RTA apply to the orders made by his Honour in the action before him. The provisions of s 26 are clear. No appeal lies against the orders made by the learned magistrate. The only relief available to the appellant is that to which s 26(2) refers. That is that no declaratory judgment may be given or order made under s 36 of the Magistrates Court Act 2004 (MCA) unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under the RTA in respect of the proceedings or that a party to the proceedings has been denied natural justice.
Whether the District Court can make an order remitting this appeal to the Supreme Court
21 The appellant submits that if no appeal lies to this court then the learned magistrate, by failing to consider s 60 of the RTA in determining whether or not the agreement had been terminated, erred in law resulting in jurisdictional error. As such, counsel seeks an order remitting this appeal to the Supreme Court.
22 Section 77 of the District Court Act 1969 (DCA) provides:
77. District Court may remit to Supreme Court
Where it appears to a District Court judge that any action or matter brought before the Court ought from its nature, or magnitude, or by reason of the question of law involved to be heard and determined by the Supreme Court, he may make an order, remitting the action or matter to the Supreme Court.
23 Section 36 of the MCA relevantly provides:
36. Supreme Court's powers to control Court
(1) If a person is or would be aggrieved by one or more of the following —
(a) the failure of a Court officer to do any act or make any order or direction —
(i) on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii) on any ground that might have justified an order of mandamus;
(b) an act, order or direction that a Court officer proposes to do or make —
(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii) on any ground that might have justified an order of prohibition;
(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,
…
(7) If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may —
(a) remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or
(b) adjourn the appeal to enable an application to be made to the Supreme Court —
(i) under subsection (1); or
(ii) under the District Court of Western Australia Act 1969 section 76.
25 On the proper construction of s 77 of the DCA, that power arises only where an action or matter is properly 'brought before the court'. In circumstances where the court has no jurisdiction to deal with an appeal, it cannot be said that there is any action or matter 'brought before' it.
26 Pursuant to s 36(7) of the MCA that power arises when the court is 'dealing' with an appeal under the MCCPA. Where, as in this case, the court has no jurisdiction to entertain this appeal, it cannot then be 'dealing' with the appeal so as to enliven the provisions of s 36(7).
27 In the event that the appellant wishes to seek relief against the judgment or orders of the learned magistrate, then it will need to make an application to the Supreme Court under s 36(1) of the MCA, having regard to s 26(2) of the RTA.
28 The appropriate order is that this appeal be struck out. I will hear the parties with respect to costs.
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