Magistrates Court Act 2004 (WA), s 35, s 36

Residential Tenancies Act 1987 (WA), s 26

Rules of the Supreme Court 1971 (WA), O 56, O 56A

Order for application for review to be heard by a Judge in chambers

Copies of application and affidavits to be served as directed and then application to be re-listed for further directions

Order to stay execution of order for vacant possession

De Alwis v Department of Housing and Works [2006] WASC 14

Re Burton; ex parte Rowell [2006] WASC 277

Stampalia v The Stewards of the Western Australian Trotting Association [1999] WASC 7

Zucal v Harper [2005] WASCA 76; (2005) 29 WAR 563

1 This is the first return of what is styled an application by way of notice of originating motion for an order nisi for a writ of certiorari in respect of an order in the Joondalup Magistrates Court. The order was made on 21 November 2006 and was for the delivery up by the applicant of vacant possession of residential premises in Hillarys. The basis for the order nisi is laid on two types of ground. One type of ground is the learned Magistrate's denial of natural justice in certain specified respects. The other type of ground is the learned Magistrate's specified errors in respect of the evidence. The applicant represented herself before me.

2 The respondent to this application is the learned Magistrate, for whom a notice has been filed indicating he will abide the result of these proceedings.

3 The landlords of the residential premises are not parties, although in some of the documents prepared by the applicant for filing in these proceedings they appear to be named as parties. As I will indicate, they have been "notified" of these proceedings, although neither copies of the originating process nor the supporting documents for the hearing before me were provided to them until the hearing today.

4 One of the landlords, Mr Dale Miller, attended the hearing, as I will describe, and I permitted him to take part, and provided him with the Court's copies of the applicant's papers for the hearing so he could follow the proceedings.

5 At the conclusion of the hearing, I indicated I would make the orders described at the end of these reasons. In the meantime I provided the statutory and case references that appear in these reasons to the applicant and Mr Miller, and indicated I would provide written reasons after the hearing.

7 I should begin these reasons by describing the procedural basis upon which I treated this application as having been brought, notwithstanding its form. Then I consider the merits of the application. For the reasons I will give, I will treat the application as if it contained a request for a stay of enforcement of the order for vacant possession.

8 The combined effect of the Residential Tenancies Act 1987 (WA) ("the Residential Tenancies Act"), s 26, and Magistrates Court Act 2004 (WA) ("the Magistrates Court Act"), s 35 and s 36, is that these proceedings must be treated as an application for a review order under s 36 of the latter Act. The Court may not make an order under that provision unless it is satisfied as to either one or other of the two bases for doing so referred to in s 26 of the former Act. See Re Burton; ex parte Rowell [2006] WASC 277, Martin CJ.

9 For convenience, I set out those provisions below.

10 The Residential Tenancies Act, s 26 is as follows:

(1) An order made by a court under this Act, or by a registrar acting under section 13A(2), 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.

(3) This section applies despite Part 7 of the Magistrates Court (Civil Proceedings) Act 2004."

11 The Magistrates Court Act, s 35 and s 36 (in material part), are as follow:

"35. Prerogative writs not available against the Court

A writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a Court officer.

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,

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.

(1) The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.

(2) On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.

(3) If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -

(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;

(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;

(c) make any necessary consequential orders.

12 I note that "Court" is defined in Magistrates Court Act, s 3, "unless the contrary intention appears", as the Magistrates Court of Western Australia.

13 I further note that, pursuant to Magistrates Court Act, s 36(2), O 56A provides for the procedure in applications for a review order. It is similar to, but not identical with, the procedure on applications for an order nisi for certiorari in respect of a decision subject to such process: see O 56 for that process. Thus, an application for a "review order" must be made ex parte: O 56A r 2(1)(a). An application for a writ of certiorari may be made ex parte: O 56 r 1.

14 I particularly note O 56A r 3, which in material parts is as follows:

"(1) An application for a review order shall be first listed before a Judge in chambers.

(2) The Judge may -

(a) refuse the application;

(b) make a review order and order that it shall be heard by -

(i) a Judge in chambers or in court; or

(ii) the Court of Appeal;

or

(c) make an order under section 36(5),

and, unless the Judge acts under paragraph (b) or (c), may do any or all of the following -

(d) direct that the application be decided by a Judge sitting in court;

(e) direct that notice of the application be served on such persons as the Judge directs;

(f) adjourn the hearing of the application.

(3) If a Judge makes a review order, whether under section 36(6) or on an application made under rule 2 -

(a) it may include an order as to who, apart from the Court officer named in the application, must be served with the review order;

(b) it must include an order as to how the review order must be served;

(c) it may include an order as to costs, and as to giving security for costs, or otherwise;

(d) it may include an order that the review order operates as a stay of the proceedings in question until such time as the Court specifies in the order or orders otherwise.

..."

15 It will be observed that "review order" is used in Magistrates Court Act, as it is in O 56A, in two senses. One sense is that of an order for review of the order concerned, including an order under O 56A r 3(2)(b). The other sense is that of an order for relief in respect of that order, a final order as referred to in O 56A r 5.

16 This last point emerges most clearly in respect of the Court's power to order a stay of "the proceedings in question until such time as the Court specifies in the order or orders otherwise", in O 56A r 3(3)(d). That provision, read with Magistrates Court Act, s 36(1), in its concluding words, would appear to allow for a stay of the execution of the order for vacant possession on an application for a review order.

18 There is very little authority on applications for review orders. What authority there is appears to be two decisions.

19 One decision is Burton (supra), which was the reasons for decision following a hearing under the review order previously made, that order apparently having been made under O 56A r 3(2)(b).

20 The other, and earlier, decision is that of E M Heenan J, in De Alwis v Department of Housing and Works [2006] WASC 14. That decision was in relation to the making of an order under O 56A r 3(2)(b), in which I note his Honour indicated that, as well as making an order that the application for review under s 36 be heard before a Judge in chambers, and for service of the application as there provided, he made an order to stay the order for the termination of the tenancy and the order for possession in that case.

21 I note, however, that in De Alwis E M Heenan J had the landlord affected by the order represented before him. That is an important consideration, as will shortly appear. In this case, one (but not the other) of the landlords who would be affected by the order was before me, but not as a party to these proceedings. The applicant's affidavit of service of the notice of motion for an order that the order of the Magistrate in this case "be quashed by an order nisi for a writ of Certiorari" includes the statement that "I also notified Dale Miller/Nhi Do, landlords, as interested parties". As will appear, Mr Miller and Ms Nhi Do were the landlords in this case. Mr Miller was present at the hearing before me.

22 However, it appeared both from the applicant and from Mr Miller that neither landlord had been provided with the originating process or the applicant's papers for the hearing until the hearing.

23 I do not consider that a notice such as the one just described was a notice of an application for a stay, unless there were a reference to a stay in the application for the order. There was no such reference in this case, save to the extent such a reference could be drawn out of the reference, following the reference to the order to quash being sought, to "such other orders as are necessary to apply, effect, and implement this order". I do not consider such a reference would be sufficient notice of the possibility of a stay order being sought in their absence at the point of the grant of the "order nisi".

24 There is a power in the Court, in relation to an application for an order nisi for one of the prerogative writs in respect of an administrative decision, to order a stay of that decision. I consider that, in the absence of authority on the corresponding power in relation to a review order, I should accept that the test for the grant of a stay in such a case is that in relation to an application for an order nisi. That test has been located in Stampalia v The Stewards of the Western Australian Trotting Association [1999] WASC 7, which was referred to in Zucal v Harper [2005] WASCA 76; (2005) 29 WAR 563, per Steytler P, Wheeler and Pullin JJA agreeing, at [58] as follows:

"All parties accepted that the test for the grant of a stay in a case of this kind is that identified by Owen J in Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7, namely, whether or not the applicant has demonstrated that 'there are special circumstances sufficient to satisfy the Court that it is just and reasonable to order a stay so as to preserve the subject matter and integrity of the litigation'. Owen J had earlier said (at [9]) that the phrase 'preserving the subject matter of the litigation' is to be understood in a very broad sense (in that case the subject matter of the litigation was a challenge to the disqualification of a trainer for 12 months)."

25 However, in a case where there has been no notice of the application for a stay of the order sought to be quashed, further considerations apply, as indicated by the following passage from the judgment of Steytler P, in Zucal (supra) at [60]:

"Still less, in my respectful opinion, should the Stewards' exercise of discretion have been interfered with in circumstances in which they had been given no notice of the application for a stay of Harper's suspension. The submission was made to us that, because the Rules of the Supreme Court 1971 (WA) empower the making of applications of this kind ex parte, there was no need to give any notice to the Stewards, or to the other interested parties. I cannot stress strongly enough that this is not the case. The process of applying ex parte exists in order to enable a party to come before the Court quickly and simply and in order to allow for the fact that it may be impractical or otherwise inappropriate to give notice to affected parties of the subject matter of the application as, for example, where there is the risk of imminent damage or where the giving of notice may defeat the very purpose of the application. However, it has long been accepted that 'There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence': Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681, per Isaacs J; and see also Spry, Equitable Remedies, 6th ed, (2001) at 511. Isaacs J went on to say, in Bullock, (ibid):

'But instances occur where justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party, of if irremediable or serious damage be imminent, the other may come to the Court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action. But, when he does so, and the Court is asked to disregard the usual requirement of hearing the other side, the party moving incurs a most serious responsibility.'"

26 I take from that passage that the "most serious responsibility" may be discharged, and that may be shown where there is the "danger of destruction" of "the subject matter of the suit" by one party, or where "irremediable or serious damage be imminent".

27 Here, the applicant described for me the serious difficulty she faced were she to be evicted from the present premises, as she expected to be, once the extension of the suspension of the effect of the execution of the order for vacant possession she had obtained in the Magistrates Court, to which I briefly return below, had ceased to have effect. She would have to make the move out of the premises without assistance. She would be moving three small children, including a child born only recently. She would be moving into a very tight rental market. Were her application to succeed, she would be faced with moving back when her circumstances might well make such a move an unreasonable exercise because of the further disruption it would cause. Were she to remain until the conclusion of her proceedings for a review order, she would, of course, continue to be paying rent, and presumably subject to the other obligations of a tenant. She had already been permitted to remain by way of a suspension by the Magistrates Court of the order appealed from.

28 Mr Miller indicated to me that there had already been substantial delays allowed for the applicant to find alternative accommodation, including the suspension referred to. She had applied to the Magistrates Court for an order to have the effect of further extending the suspension referred to which would be heard in two days time, on Thursday, 22 March 2007. The landlords were entitled to the benefit of the order for vacant possession, once the period of suspension including any extension by the Magistrates Court had expired, and until such time as the order for vacant possession was set aside. Mr Miller further appeared to confirm he was not in a position to make fuller submissions because of the delay in being provided with the originating process in this case. I would anticipate such submissions might (among other things) go to show that there are further detriments to the landlords from further delay in having the benefit of the order for vacant possession.

29 In my view, on the arguments and in the circumstances I have described, I should make an order staying effect being given to the order for vacant possession but on terms that allowed for the landlords to come back to Court to argue that the stay should not be continued. That application should be made so as to allow both parties time to properly prepare for the hearing, but subject to the possibility of the need to apply earlier, as because of a change in circumstances.

The background to the order of the Magistrate

31 I have drawn the first part of the following account from the reasons for the decision of Magistrate Lawrence in the Magistrates Court at Joondalup delivered on 21 November 2006. The remainder is drawn from material in the affidavits filed in support of the application before me, and from the applicant's and Mr Miller's statements to me at the hearing.

32 The proceedings before the Magistrate arose out of a lease provided for by a residential tenancy agreement between the applicant, as tenant, and Dale Miller and Nhi, as landlords.

33 There were applications from both the tenant and the landlords before his Honour.

34 The tenant had applied for relief in respect of breaches by the landlords of their obligations under the Residential Tenancies Act. Those obligations were to provide the premises rented in a reasonable state.

35 The landlords had applied for vacant possession of the premises rented on the basis that the tenant had remained in the premises in circumstances where she had not validly exercised the option to renew provided for in the residential tenancy agreement, and where in any event she could not validly rely on the option as she had committed major breaches of the obligations arising under the lease.

36 Throughout the proceedings before the learned Magistrate, and also before me, the applicant was self-represented.

37 The matter in the Magistrates Court was heard, and evidence was taken, before his Honour on 11 July, 12 July, and 10 August 2006.

38 On 15 August 2006, his Honour, on the application of the tenant, adjourned the hearing of submissions to 31 October 2006. This was apparently in part at least on the basis of a letter from a medical practitioner which explained that the tenant was suffering from lethargy as result of her pregnancy, and the lethargy so caused dated back to June 2006.

39 The tenant was unable to attend the hearing on 31 October 2006. A letter from the medical practitioner referred to confirmed that the tenant's baby was overdue and she would be unlikely to have recovered medically such that she could attend the hearing. At the hearing with the consent of the landlords the hearing was adjourned to 21 November 2006.

40 At the hearing on 21 November 2006, which the tenant did not attend, the learned Magistrate had written submissions from her. He also heard oral submissions from counsel for the landlords. At the conclusion of those submissions, the learned Magistrate indicated he had considered the written submissions of the tenant, but required sufficient time to consider the submissions for the landlords.

41 Later the same day the learned Magistrate gave his decision in which he found that the tenant had made out her case to the extent that it was appropriate to order a reduction in rent under Residential Tenancies Act, s 32(4).

42 He also found that the lease had expired on 18 June 2006 and that the option provided for in the lease had not been validly exercised. He so found as the instrument by which the tenant had sought to exercise the option did not specify a period for the renewal. On his Honour's understanding of the law, the result was that an order for vacant possession should be made.

43 However, pursuant to Residential Tenancies Act, s 71, his Honour suspended the application of the order for vacant possession until 22 December 2006. He explained this as follows (21 November 2006, TS 24):

"I am entitled to suspend for up to [the 30 days referred to in s 71] having considered the relative hardship of the parties. I am not entitled to suspend the operation of an order for any longer than 30 days. The tenant is a single mother caring for three children, including a newborn."

44 By application dated 12 December 2006, the tenant applied for an order suspending the order for vacant possession. This application was made to the Magistrates Court Joondalup, and was made under Civil Judgments Enforcement Act 2004 (WA), Pt 3 Div 3. I understood that that application or a similar one had been successful, with effect at least until the day after the hearing before me, on Wednesday, 21 March 2007.

45 This case emerges from the affidavits of the applicant sworn in support of the application before me. Those affidavits were sworn on 19 December 2006 and 20 March 2007. They are principally made up for annexures including transcripts of the hearings before the learned Magistrate at which he took evidence. The transcript of the hearing on 21 November 2006 was provided to this Court by the Joondalup Magistrates Court. There is no transcript for the hearings on 15 August and 31 October 2006.

46 The case the applicant has put is in terms of denial to her of natural justice. That denial is located in the absence of procedural fairness that is particularised in the affidavit of 19 December 2006 under a number of headings. Those particulars, after discussion with the applicant at the hearing before me, appear to me to reduce the following matters:

1. The learned Magistrate proceeded despite the applicant being ill and unable to testify properly, as indicated by medical certificates stating she was unfit to testify;

2. The applicant was not informed of the final hearing on 21 November 2006 in time to properly prepare for that hearing;

3. The applicant was not afforded a fair and unprejudiced hearing.

47 The applicant, after I had rehearsed the list above with her, indicated she was not then satisfied her case was suitably so reduced. However, the list did cover at least a part of that case.

48 In the affidavit of 20 January 2007, various references are made to the transcript of hearings in the case, as well as to matters of exchange between the applicant and the learned Magistrate, and other matters to do with the hearing, which were not reproduced or referred to in the transcript.

49 It seems to me that that the matters I listed, if established, would indeed go to show that the appellant was denied natural justice. At this stage, they are of course simply allegations which, subject to further argument and evidence, are capable of being supported by the material in the affidavit referred to.

50 The application for a review order should be granted in respect of the matters just referred to if those matters disclose an "arguable case" of the denial of natural justice: De Alwis (supra), E M Heenan J, at [21]. It seems to me that the applicant has shown an arguable case for the making of the review order sought, in respect of the matters just referred to.

51 As a further hearing for procedural orders would be appropriate, as I will indicate, the applicant will have an opportunity, on further consideration of the matter, to determine if there is matter in her affidavits of 19 December 2006 and 20 March 2007 which she would also wish to have considered as arguable grounds for a review order.

52 The affidavit of 19 December 2006 also sets out what are described as errors of the learned Magistrate "in fact and law". Those errors appear to reduce to:

1. An error in the construction of the requirements of the lease for the valid exercise of its option;

2. An error in his Honour's failure to use the landlords' understanding of the instrument to determine whether those requirements were met;

3. An error in his Honour's use of a "draft copy" of the instrument, rather than the final version of that instrument.

53 In that last respect, the affidavit of 19 December 2006 refers to (although does not annex) the final version of the instrument of renewal, which it is said "does request 12 months".

54 It seems to me the errors "in fact and law" are not capable of being viewed as denials of "natural justice", within the limitations on review in Residential Tenancies Act, s 26(2), except to the extent that they refer to matter tending to show bias, as the applicant contended they did.

55 It may be, however, that the errors "in fact and law" are capable of being seen as going to whether or not "the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings". Although I have considerable doubt that they are capable of being so seen, I note the approach taken by E M Heenan J in De Alwis (supra), at [20], to the corresponding matters before him. In view of the newness of the Residential Tenancies Act, it may be that the errors in fact and law referred to, if established, would be seen to remove the basis for the jurisdiction of the learned Magistrate to make the order of vacant possession allowed for under that legislation. Given that the review order has been allowed for in the respects previously indicated, I consider, as E M Heenan J did in De Alwis, that the applicant should have the opportunity to show, if she can, that the errors of fact and law she relies upon, if made out, go to the jurisdiction of the learned Magistrate under the Residential Tenancies Act to make the order for vacant possession.

56 I consider the orders following from these reasons and after discussion with the parties should be the following.

57 The present application for review should be heard before a Judge of this Court sitting in chambers.

58 The application, together with the affidavits I have referred and these orders, be served upon the landlords, to be served by registered mail or equivalent Australia Post service at the address supplied at the hearing.

59 The landlords shall have liberty to apply to be joined as parties to these proceedings.

60 The applicant have liberty to uplift and copy away from the Court the papers in the Court file for the purpose of the service just described, such papers to be refiled with the Court by 4 pm Thursday 29 March 2007.

61 The transcript of the proceedings before the learned Magistrate to the extent not annexed to the affidavits referred to be brought into court either at the initiative of the applicant or any other party to the proceedings, and that the Registrar of the Magistrates Court at Joondalup shall remit to this Court the exhibits before the learned Magistrate.

62 This review order be adjourned for further consideration by a Judge in chambers in this Court, at a date to be fixed approximately six weeks from today, but to be fixed only after the service referred to above has taken place. On that occasion the Court will give further procedural orders.

63 Execution of the order for vacant possession be stayed until further order, which may be made on application by any party, or in any event by the landlords, such application not to be made before Thursday 5 April 2007, subject to the liberty to apply below.

64 There be liberty to apply generally to any party.