Wilson v Romanchik

[2013] WASC 192

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WILSON -v- ROMANCHIK [2013] WASC 192

CORAM:   McKECHNIE J

HEARD:   14 MAY 2013

DELIVERED          :   14 MAY 2013

FILE NO/S:   CIV 1696 of 2013

BETWEEN:   SANDRA LYNNE WILSON

Plaintiff

AND

VOLHA ROMANCHIK
Defendant

Catchwords:

Practice and procedure - Application for review order - Previous application dismissed - Res judicata - Abuse of process

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     No appearance

Solicitors:

Plaintiff:     In person

Defendant:     No appearance

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

Wilson v Romanchik [2012] WASC 328

Wilson v Romanchik [2013] WASCA 103

1. McKECHNIE J:  The plaintiff has filed an originating summons for a review order under the Magistrates Court Act 2004 (WA) s 36 in relation to a decision made by the magistrate following an order under the Residential Tenancies Act 1987 (WA) s 97 that the defendant pay the plaintiff $1,565.10 to occupy premises in Second Avenue, Claremont prior to her eviction.

2. The main issue before the magistrate was whether the defendant was a tenant or a lodger.  The answer to this jurisdictional fact determined whether the magistrate had jurisdiction under the Residential Tenancies Act.  The magistrate determined that the defendant was a tenant.

3. A review order is possible if the magistrate had no jurisdiction:  Residential Tenancies Act s 26(2).

4. All this is by way of background because there is a fundamental reason why this application must be dismissed as an abuse of process.  That is because the plaintiff has already litigated the issue in this court.  In Wilson v Romanchik [2012] WASC 328 Master Sanderson dismissed the application to review the decision of the magistrate as to whether the defendant was a tenant.

5. An application for extension of time within which to appeal was refused by the Court of Appeal on the basis that the grounds of appeal had no reasonable prospects of success:  Wilson v Romanchik [2013] WASCA 103.

6. Because this application was filed seeking in substance the same relief only a couple of weeks after the rejection of the appeal, I asked for a notice to be given to Ms Wilson to indicate before me why the matter should not be dismissed as an abuse of process.  She has appeared today and has put forward, in various arguments, that she has not had justice or had her appeal properly determined.

7. One of the reasons she advances is the state of her health when she was before Master Sanderson, so that she was not able to make proper submissions.  However, the Court of Appeal dealt specifically with that matter in [14] to [17].  The court concluded that she was able to make submissions to the Court of Appeal but nothing she said would support a different outcome. 

8. The plaintiff asserts that the magistrate failed to discharge his duty of care.  The Court of Appeal having dismissed the appeal against the decision of Master Sanderson, it is clear that the decision of Master Sanderson creates a res judicata to prevent the plaintiff from further action in respect of the transaction.

9. The plaintiff has exercised her right to seek a review order and exercised her right to appeal against the dismissal of that review order.  Further action on her part to litigate the same matter is an abuse of process.  The application is dismissed.