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[2021] WASC 335
General information, not legal advice.
Supreme Court of WA
2021-09-30
Martin J
Original judgment source is linked above.
(This judgment was delivered extemporaneously on 13 August 2021 and has since been edited from the transcript.)
1 I am dealing with an application filed on 4 July 2021 by the applicant, Mr Bajaj, that seems to be seeking relief pursuant to s 36(1) of the Magistrates Court Act 2004 (WA) (Magistrates Court Act). Mr Bajaj represents himself in these proceedings.
2 Section 36(1) of the Magistrates Court Act says:
If a person is or would be aggrieved by one or more of the following -
and continues under its following subpars (a), (b) and (c) to refer to the prerogative writs of mandamus, prohibition, and certiorari - in the context of the Supreme Court of Western Australia granting analogous, but not the same remedy against the order of a magistrate.
3 By s 36(1) the court is statutorily empowered to grant relief on a ground that might once otherwise have justified a prerogative writ remedy, say for mandamus, prohibition, or for certiorari. A person may apply ex parte under s 36(1) to the Supreme Court for an order to that end. This is called a review order.
4 For those old enough to remember, a review order is akin to what was formerly witnessed as an 'order nisi' - the first step in two stages towards the ultimate obtaining of an order absolute for an issue of a prerogative writ. A review order, like the former order nisi, requires the person who would be affected by the act, order, or direction (ie, here the learned magistrate) to satisfy the Supreme Court at a (later) hearing convened between the participants, that the act, order, or direction should or should not be done, made or set aside, as the case requires (under scenarios akin to prohibition, mandamus and certiorari remedies).
5 Section 36(2) of the Magistrates Court Act says:
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.
An application to the Court for review order -
(a) must be made ex parte ...
7 Mr Bajaj's application filed on 4 July 2021 in this court as CIV 1612 of 2021 (folio document 1) is his application made ex parte seeking a review order against the decision of a magistrate in a Residential Tenancies Action in the Magistrates Court - to which Mr Bajaj was a party.
8 O 56A, r 2(1)(b) says that an application for a review order:
(b) must be titled 'In the matter of an application under the Magistrates Court Act 2004 section 36 for review order against [name of the Court officer], [title of office held] of the [name of court] at [place] EX PARTE [name of applicant], or as the case requires.
9 The title of Mr Bajaj's application (as filed on 4 July 2021) did not manifest that title, as is required. Instead it was headed 'Application for a Judicial Review'. It makes reference, wrongly, to RSC O 56, r 2. The form Mr Bajaj used was 'Form 67A - Application for Judicial Review'. However, that is the form for seeking a generalised judicial review relief under RSC O 56. It is not the correct form for pursuing a s 36 application against the decision of a magistrate.
10 Instead, Mr Bajaj should have used a Form 64 - Notice of Originating Motion, which would then incorporate the required title requirements under r 2(1)(b) of RSC O 56A. Issues as to the incorrect form and missing title are matters that might otherwise be redressed and corrected by the leave of this Court, if this application were to proceed further.
11 The present application is supported by Mr Bajaj's 608 page affidavit, sworn on 22 June 2021 (folio document 2). I note Mr Bajaj swore this affidavit before he filed his commencing application, on 4 July 2021, with the affidavit including documentary attachments A through to S. The submitted material in the affidavit is unnecessarily voluminous. I refer to some of it in the reasons.
12 Essentially, Mr Bajaj's review order application is directed against the decision of Magistrate Darge of 25 February 2021, rendered in a residential tenancy dispute pursuant to the Residential Tenancies Act 1987 (WA) (RTA). Mr Bajaj was a landlord in a dispute with his former tenants over a very small amount of money - on Mr Bajaj's best case. The fundamental question today is whether or not, in all the circumstances presented, a review order ought be obtained ex parte by Mr Bajaj, against the learned magistrate's decision by reason of some jurisdictional problem.
13 Before going further, I must mention briefly, the law relevant to Mr Bajaj's application to this court, particularly the law concerning review orders in respect of residential tenancy disputes. At the outset I mention s 12A(1) of the RTA which affords exclusive jurisdiction to the Magistrates Courts over prescribed disputes (ie, disputes for under $10,000) and to no other court or tribunal. By s 12A(2) of the RTA the applicable procedure for a residential tenancy dispute is that applicable for a 'minor case' under Pt 4 of the Magistrates Civil Procedure Act 2004. See also RTA s 20(a) and s 23 as to settlements by conciliation.
14 By s 26 of the RTA, there is effectively no avenue of appeal allowed against a decision of a decision maker under this legislation.
15 Section 26(1) of the RTA under its heading, 'Finality of Proceedings', says:
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.
16 In relation to the power afforded this Court under s 36 of the Magistrates Court Act to potentially grant judicial review relief, analogous to prerogative writ relief against a decision of a magistrate, s 26(2) of the RTA is relevant. It says:
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 this 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.
17 I must also refer to s 27 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). This provision directs that a judicial officer, pursuant to the Court's 'primary object', is to attempt to bring the parties to a settlement of their dispute in a minor claim. The process for such a low level financial dispute is to be dealt with informally - under the Magistrates Court (Civil Proceedings) Act 2004 (WA), which deals with so-called 'minor claims' (ie, claims under $10,000). See also s 29 and s 32(1)(a), (2)(a) and 3(a), (b) and (c) of that Act. As seen, generally speaking residential tenancy disputes under the RTA will be 'minor disputes' and be dealt with in the Magistrates Court informally on that basis.
18 The Court of Appeal's decision in Rayney v AW [2009] WASCA 203 (Rayney v AW), published 13 November 2009 is the starting point for the state of the law concerning s 36. The lead reasons of McLure JA, as the learned President then was (and whose reasons ultimately were agreed by Buss and Newnes JJA), explains comprehensively s 36 of the Magistrates Court Act 2004 and its history. Materially, Rayney v AW deals with the nature of a first step s 36(1) review order and its implications. In particular, I incorporate McLure JA's reasons as follows:
25 Judicial review is a supervisory function that is distinct from an appeal or other review on the merits. Judicial review concerns itself solely with the legality of decisions. The focus is on jurisdictional errors. At common law, the scope of judicial review is determined by the availability of the prerogative writs, which include mandamus, prohibition and certiorari. For all intents and purposes, the right and remedy are indistinguishable at common law.
26 The scope of judicial review varies according to the nature and power of the decision-maker. The common law grounds of judicial review applicable to courts and analogous tribunals are significantly narrower than the grounds of review of decisions of administrative tribunals: Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 - 179; Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181].
27 There can be no doubt that the power in s 36 of the Magistrates Court Act is a judicial review power. The purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the Court. The intention is to permit judicial review in those situations in which the specified prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies. That purpose is evident in the language and context of s 35 and s 36. Section 35 takes away the Supreme Court's power to issue a prerogative writ in the form of a writ of mandamus, prohibition or certiorari and substitutes the remedies in s 36(4). A review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted.
28 The language and purpose of s 36 in its broader statutory context compels the conclusion that the power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.
29 Section 36(1) is not solely concerned with the standing of a person to apply for a review order. Importantly, it identifies the purpose and content of a review order. The review order must require the court officer (and any other affected persons) to satisfy the Supreme Court at a hearing that the act, order or direction referred to in pars (a), (b) or (c) of s 36(1) should or should not be done, made or set aside by reference to the grounds of review specified in subpars (i) and (ii) of those paragraphs.
30 The 'hearing' referred to in s 36(1) is the hearing for final relief in s 36(4). Thus, there is an express link between the grounds enlivening the power to make a review order in s 36(1) and the power to grant relief in s 36(4).
31 Section 36(3), when read with s 36(1), provides the source and scope of the court's power to make a review order. The Supreme Court 'may make any review order that is just, whether it has been applied for or not'. Satisfying the threshold (whatever that may be) for an error of a type identified in subpars (i) and (ii) of s 36(1)(a), (b) or (c) (a reviewable error) is a precondition to the exercise of the power to grant a review order. The expression 'that is just' is not intended to empower the court to make a review order requiring the decision‑maker to show cause if the decision‑maker has not made (at least) an arguable reviewable error. The expression 'that is just', in context, means the court has the power to grant a review order whether or not there is an application for such an order and whether or not a specific ground of reviewable error has been relied on by the applicant. The expression also empowers the court in appropriate circumstances (such as the availability of an appeal) to decline to make a review order even if the threshold test of a reviewable error has been established. The power is, in that limited sense, discretionary.
32 The expression that 'the Supreme Court is not satisfied in accordance with the review order' in s 36(4) corresponds with the requirement in s 36(1) that the court officer (and any other affected person) satisfy the Supreme Court in relation to the alleged reviewable error the subject of the review order. The central question in this case is the meaning of the words 'or if it is just to do so' in s 36(4). Those words are not intended to make the power to grant final relief at large. By analogy with the similar expression in s 36(3), the power in s 36(4) is conditioned upon establishing a reviewable error. The expression 'just to do so' is intended to permit the court to grant final relief in relation to a reviewable error falling within s 36(1) even if it falls outside the scope of the reviewable errors identified in the review order. Having regard to the language and statutory purpose of s 36 the expression cannot sensibly be interpreted to mean that the Supreme Court can exercise one or more of the powers s 36(4)(a), (b) or (c) whether or not there is a reviewable error or indeed any error at all. Such an approach would turn the notion of judicial review completely on its head.
33 This construction of s 36(4) is consistent with the scope of the available relief in s 36(4). The power to grant the relief in pars (a) and (b) of s 36(4) corresponds precisely with the relief required to address the acts and omissions specified in pars (a), (b) and (c) of s 36(1). Further, the power in s 36(4)(c) 'to make any necessary consequential orders' can only be a reference to a prior substantive order made under pars (a) or (b) of s 36(4). A consequential order is one which follows logically or of necessity from a prior substantive order: Pera v Pera (2008) 218 FLR 222 [61].
34 In summary, the power to make an order under s 36(4) only arises if the challenged act or omission of the court officer satisfies one or more of the grounds specified in s 36(1)(a), (b) or (c). As neither party contended in the appeal that the magistrate made any reviewable error, it follows that the primary judge did not have the power to make the disclosure error. (my emphasis in bold)
19 I emphasise McLure JA's observations at [31] and [32] in terms of a fundamental need to identify a reviewable error.
20 By way of further explication of the law in this area, I would also mention Corboy J's comprehensive reasons in Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360 (Saldanha v Fujitsu), delivered 22 December 2011.
21 In particular, I would indorse what his Honour said commencing at [61] concerning the applicable principles in determining whether or not to make a review order.
22 In broad summary, as is discussed by Corboy J in those reasons, referring to many prior case authorities, the task for the court is to decide whether there is a sufficient basis of arguability in what an applicant, such as Mr Bajaj, has submitted to the court on his materials in seeking a review order under s 36(1). The court must resolve that issue at an early stage under s 36(1), whilst it is necessarily evaluating the matter only on an ex parte basis. It is insufficient for an applicant to identify merely an argued error by the learned magistrate. The alleged error must be a properly arguable jurisdictional ground of error - indicating for instance, that a deciding magistrate had lacked the authority to decide the case. Or as s 26(2) of the RTA itself says, that there has been some potential denial of natural justice in all the circumstances.
Mr Bajaj's five (5) submitted grounds for review
23 Relevantly, I am confronted with five grounds under Mr Bajaj's in person application to this Court, which I have considered. I need to incorporate them by reference as I do below. They read:
1. The Magistrate misapprehended the statutory requirement in s 17(1) and s 17(2)(a) of the RTCRA at termination of residential tenancy agreement during emergency period governed under Divison 2 of the RTCRA. On that the Court terminates agreement on a relevant provision of the RTA upon hearing an application brought under s 21(1)(c) of the RTCRA and s 60(1)(c) and s 74 of the RTA. It was incumbent on the Magistrate to be satisfied in weighing factors on discretion in s 74(1) of the RTA were made out before terminating the agreement in hearing MC/CIV/PER/RSTN/10850/2020. It was open to the Magistrate to visit the issue on termination, or whether termination be brought under provision, s 21(1)(b) of the RTCRA, and s 60(1)(g) of the RTA at the original hearing, but not a subject matter of re-visiting the determination in trial hearing. [s 36(1)(a)]
2. The Magistrate misapprehended the nature or limits of the function and powers conferred in the provisions for s 14 and s 20(m) of the RTA and dealing with residential tenancy applications. Further, to misdirect himself to hear application of the other party, contesting the issues of termination, an abuse of process to list a trial hearing to redetermine the issue of termination on other provisions namely, s 21(1)(b) of the RTCRA, and forming a view of s 60(1)(g) of the RTA. [s36(1)(c)]
3. The Magistrate misconstrued s 74 of the RTA given that agreement was terminated, when hearing original application of the applicant and to note that other party delivered the vacant possession. It had become mandatory under s 74(2)(a) of the RTA to specify date an order of termination was to operate and assessed basing on factors and consider duty of mitigation on breach of agreement brought in subsequent proceedings of the applicant. [s 36(1)(a)]
4. The Magistrate misconceived the authority to exercise a discretion, or failing to ascertain that overall circumstances were appropriate, at duty of mitigation of s 58 and for relief on breach of residential tenancy agreement to compensate for loss and costs, under s 15 of the RTA, not limiting on a discretion under s 74(2)(b) of the RTA. [s 36(1)(a)]
5. The Magistrate misconstrued s 60(1)(g) of the RTA that in original proceedings of the applicant, which was the subject of both parties had not conceded to mutually terminate the agreement, nor a court order to terminate that agreement under s 21(1)(b) of the RTCRA. Revisiting the issue of termination as brought in an application by other party, not specifying a statutory cause of action, rather make representation of notice and to determine termination of s 60(1)(g) of the RTA, without alluding, but failing to draw prior attention of the applicant was a failure to accord procedural fairness, or deny a fair hearing and to ignore facts is breach of rules of natural justice.
24 I observe upon Mr Bajaj's apparent references as seen at the end of his submitted grounds 1, 2, 3 and 4, to what look to be various subparagraphs of s 36(1), indicating the analogous prerogative writ circumstance (ie, reference to prohibition, mandamus or certiorari like relief).
25 This unfortunately is a very document‑heavy application, of low economic value at best to Mr Bajaj. But it turns upon relatively straightforward underlying facts. Specifically, there had been a written residential tenancy agreement for a fixed term entered into by a Mr and Mrs Palmer with Mr Bajaj as their landlord. Mr Bajaj's residential property in question was at 85 Derby Road, Shenton Park.
26 There was no argument that this was a rental agreement that was governed by the terms of the RTA. The tenancy was originally for a fixed term, which ran between 13 May 2019 and 8 November 2020.
27 As the COVID-19 ravaged year 2020 drew towards November, the expiry dated for the fixed term lease had been approaching. The Palmers were still in occupation of the premises and were paying the agreed rent at $535 per week. Up to 8 November 2020, there had been some back and forth negotiations between the Palmers and Mr Bajaj about extending the term of the lease and for the Palmers to stay on while their new home was being finished. However, the discussions were getting nowhere. Mr Bajaj was asking for a higher rent to be paid, but which was not being agreed to by Mr and Mrs Palmer.
28 There is no suggestion found in Mr Bajaj's application that the agreed rent was not paid faithfully and on time during the term of the lease by the Palmers. In fact, the evidence is that the stipulated rent (at the rate of $535 per week) was paid right up until 15 November 2020 - under circumstances I will explain.
29 More communications about an extension of term passed back and forth between Mr Bajaj and the Palmers by email and the like (which are the subject of a close consideration under Magistrate Darge's reasons of 25 February 2021) These communications over the Palmers' possible continued occupancy of the Shenton Park premises took place under circumstances where at that time the COVID-19 emergency response legislation (the Residential Tenancies (COVID-19 Response) Act 2020) was in force, constraining significantly for a time the rights of landlords to terminate leases, until the COVID emergency had abated. That issue was part of the background to a looming expiry of the term of that lease, as at 8 November 2020 and the continued occupancy of the premises by the Palmers until 15 November 2020.
30 It was in that context several things happened. Most materially, at 16 October 2020, Mr Bajaj gave to Mr and Mrs Palmer his written notice of termination of their residential tenancy lease - purportedly under s 61(a) of the RTA and using a Form 1C. Under this notice (found at page 22 of attachment I to Mr Bajaj's affidavit sworn 22 June), Mr Bajaj then told the Palmers:
I hereby give you notice of termination of your residential tenancy agreement and require you to deliver up vacant possession of the premises at:
85 Derby Road, Shenton Park, 6008.
31 Within that notice, Mr Bajaj went on to advise the Palmers:
Date on which vacant possession of the premises is to be given, 16 November 2020.
32 That notice of termination, as signed, was given to the Palmers by Mr Bajaj on 16 October 2020.
33 Mr Bajaj then commenced proceedings against his tenants by a Form 12 Application to the Magistrates Court, seeking a court order against the Palmers pursuant to the RTA. This was by his RSTN 10851 of 2020 - lodged by Mr Bajaj on 9 November 2020. That application under the Residential Tenancies Act (found at attachment A to Mr Bajaj's affidavit) contained the following text by Mr Bajaj:
Fixed term agreement ends in emergency period. Communications on agreements under s12(1) or section 12(2)(a)(i) of Residential Tenancies (Covid 19 Response) Act 2020 (WA) to enter in a tenancy agreement of [a] further fixed term, or a mutual agreement on fixed term agreement be terminated had failed. Noting agreement be terminated as s 60(1)(g) applies. Issuing notice of termination under s 12(6) in emergency has no effect ... (my emphasis in bold)
34 I pause to observe that Mr Bajaj's ground 5 appears to raise there an argument that somehow he had suffered procedural unfairness (as was also verbally contended by Mr Bajaj before me). Ground 5 effectively contends in part the learned magistrate denied Mr Bajaj natural justice by failing to refer Mr Bajaj to s 60(1)(g) of the RTA. Yet as seen above, Mr Bajaj's own application of 9 November 2020 displayed, on its face, that Mr Bajaj was already familiar with the very section - given that he expressly refers to it under his reasons stated on the form for (that) application.
Issuing notice of termination under s 12(6) in emergency has no effect.
Tenant confirms vacating premises by 16 Nov per landlord notice and is notified notice defaults to 29 Mar 2021. (my emphasis in bold)
37 I interpolate that the date (ie, 29 March 2021) was the end date for the period of application of the COVID emergency response legislation. Mr Bajaj continued on in his application:
For s 21(c), Court may terminate agreement of Residential Tenancies Act 1987 to s 74. Ruling to not terminate fixed agreement, but let turn periodic in emergency cause 'undue hardship' for landlord given conduct in overall circumstance, and refusal for relief cause serious injustice to applicant. Tenant had opportunity to ascertain diligence. Grant would not prejudice respondent. Landlord lost paid work amidst Covid and jobseeker payments cancelled on extension in Sep.
38 Materially, Mr Bajaj's application had then sought as his claimed relief from the Court, first, termination of the agreement, and second, possession of the premises to be delivered up to the lessor (see application heading titled 'Order required').
39 The RTN 10851/2020 application of Mr Bajaj (which in turn referred to his written notice of termination of 16 October 2020 given to the Palmers) came to be listed for a hearing before a Magistrate on 25 November 2020. It appears, at the time, notice of the application had been given to Mr and Mrs Palmer (who had earlier vacated the premises at 15 November 2020).
40 At the end of that hearing, the Magistrate's Court proceeded to issue three orders. That was on 25 November 2020 (see attachment B to Mr Bajaj's affidavit). The orders as issued by the Magistrates Court were:
1. the residential tenancy agreement between the Applicant Lessor and the Respondent Tenants is terminated.
2. The date of termination may be the subject of subsequent proceedings,
3. Application otherwise dismissed. (my emphasis in bold)
41 I emphasis the words 'is' and 'may' as seen used therein.
42 Those 25 November 2020 orders of the Magistrates Court remain. They have not been upset by Mr Bajaj. They remain in place and are not a subject of potential disturbance by today's application. Consequently, there is a res judicata on the issue of Mr Bajaj's rental agreement with the Palmers now being terminated - at least at the time of the 25 November 2020 orders of the Court. The Palmers were obviously out of possession at 15 November 2020. How those orders came about on 25 November 2020, in the face of the Residential Tenancies (COVID‑19 Response) Act 2020 (WA) Pt 2 div 2, does not really matter. Orders of the Court came to be issued then. Consequently, a termination of the residential tenancy with the Palmers came about no later than when the order to that effect was made in the Magistrates Court, on 25 November 2020: see Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 per Dixon J at 531 - 532.
43 Since judgment was entered upon Mr Bajaj's application on his cause of action in the Magistrates Court on 25 November 2020, Mr Bajaj cannot later on bring a subsequent RTA proceeding against the Palmers upon the same cause of action that is inconsistent with, or would undermine the Court's orders made and remaining in place regarding the ordered termination of that tenancy agreement at not later than 25 November 2020. See generally Halsbury's Laws of Australia, vol 1 [190‑60].
44 When Mr Bajaj had instituted his first RTN application (9 November 2020) in the Magistrates Court, his tenants had not then vacated his premises, although the fixed term of the lease was to run out at 8 November 2020. However, by the time his RTN application came on for its hearing at 25 November 2020, the Palmers had vacated, either on 15 or 16 November 2020 and they had handed the keys of the premises back to Mr Bajaj, as he eventually told me at the hearing.
45 By reason of the Residential Tenancies (COVID-19 Response) Act 2020 (WA) the Palmers, as Mr Bajaj's tenants, might well have resisted his termination notice and stayed on longer in possession of the rented premises - invoking in their favour Pt 2 of the Act, which emergency relief legislation remained in force until the end of March 2021. They could, on that basis, have argued as tenants against being compulsorily removed under Mr Bajaj's termination notice to them.
46 However, the Palmers did not take that course. In fact, they vacated, most likely, on 15 November 2020. They paid rent to Mr Bajaj up to then, as he accepts.
47 They also delivered back the keys of the premises to Mr Bajaj, as he told me at the hearing. For all intents and purposes then, Mr and Mrs Palmer were out of possession permanently - as Mr Bajaj had required them to be by his 16 October 2020 notice of termination - and as he had sought as his relief pursuant to his first RSTN application 10851/2020.
48 Regrettably, after 25 November 2020 there ensued further disagreements as between Mr Bajaj and his former tenants. The Palmers had paid a security deposit (ie, bond) of just over $2,000. In circumstances of their 15 November 2020 departure, they understandably wanted their bond back. Now Mr Bajaj would not return their bond as they sought.
49 The Palmers lodged their own RTN application in the Magistrates Court on 1 December 2020. This was RSTN 11499 of 2020 (see attachment C to Mr Bajaj's affidavit). Pursuant to that application, Mr and Mrs Palmer sought as I incorporate below:
50 The Palmers claim for termination of their rental agreement with Mr Bajaj was misconceived - because the Magistrates Court had already ordered termination on 25 November 2020. The tenancy agreement was already terminated no later than then. I put to one side issues over the precise date at which that termination occurred - before 25 November 2020.
51 In due course, the Palmers' RTN application came to be listed for a first hearing on 16 December 2020 in the Magistrates Court.
52 But on 16 December 2020, the day the Palmers' RTN application was listed for a first hearing, Mr Bajaj now issued a second RTN application against the Palmers: see attachment E to Mr Bajaj's affidavit.
53 Under his second RTN application, Mr Bajaj now sought to claim from his former tenants further relief. Put simply, Mr Bajaj now asked for more money from them, in a stated amount of $4,047.53. His position as stated looked to be that the Palmers had breached their fixed term residential tenancy agreement with him. Mr Bajaj stated by his second RTN application:
The tenants repudiated on their obligations and handed in vacant possession of the property on 15 Nov 2020 without terminating the agreement required under the provisions of the Residential Tenancies Act 1987 (WA), and the Residential Tenancies (Covid-19 Response) Act 2020. (my emphasis in bold)
The lessor has since mitigated his loss of rent in re-letting the property to progress on new residential tenancy agreement to commence 3 Jan 2021.
Lessor submits the date of termination be 2 Jan 2021 and rent loss being effective from 16 Nov 2020.
56 It will be remembered, of course, that the Palmers had paid all the rent that was due and payable by them to Mr Bajaj up to 15 November 2020. There was now a further claim for rent or for damages, up to 3 January 2021 by Mr Bajaj.
57 There were some further claims by Mr Bajaj in respect of various other things put against the Palmers, including for utilities. They are unnecessary to repeat.
58 In due course, programming orders came to be issued in the Magistrates Court in both these further RTN applications (see attachment K to Mr Bajaj's affidavit). Understandably, it was ordered that the Palmers' RTN application RSTN/11499/2020 and Mr Bajaj's (second) RTN application RSTN/12110/2020, be heard at the same time. On 16 February 2021, those two applications came on to be heard together that day before his Honour, Magistrate Darge. A decision resulting from that hearing is the subject of the present s 36(1) review order application by Mr Bajaj under the Magistrates Court Act.
59 The learned magistrate, having heard extensive in person argument through all of 16 February 2021 - commencing at just after 10.00 am and extending past 5.00 pm - duly reserved his decision at that time (see orders of the Magistrates Court dated 16 February 2021 at attachment K to Mr Bajaj's affidavit).
60 On 25 February 2021, the learned magistrate verbally delivered his reserved reasons. He made two key orders: see orders which are found at attachment N and the transcript of proceedings at attachment S to Mr Bajaj's affidavit.
61 First, upon the Palmers' RTN application, an order issued that this application be dismissed.
62 Second, in respect of Mr Bajaj's (second) RTN application - the learned magistrate duly issued orders as follows:
1. The Respondent Tenants shall pay the Applicant Lessor the following being:
Water Consumption - $50.00
Total Order = $50.00
2. The Security Bond of $2,140.00 held by the Bond Administrator (Ref No 34134/2019) be disbursed by the Bond Administrator, as follows:
(a) $50.00 to Ramesh BAJAJ the Applicant Lessor in satisfaction of the order;
(b) $1,045.00 to Johnathan Martin PALMER, the Respondent Tenant; and
(c) $1,045.00 to Breeanna Mary PALMER the Respondent Tenant.
63 Mr Bajaj's ground 5 on his review application made to this court, complains about procedural unfairness to him by reference to s 60(1)(g) of the RTA not being drawn, in effect, to his attention. This complaint must be made about the RTN determination of 25 February 2021 - not his first RTN application that was finally resolved on 25 November 2020 (plainly, on 25 November 2020, the Magistrates Court had ordered termination of the residential tenancy).
64 The learned Magistrate's reference to s 60(1)(g) of the RTA in his verbal reasons as to an agreement to terminate was understandable, considering the exhortation by s 27 to assist disputing parties in minor claims to reach agreement and the informal procedures by which a minor claim proceeding is to be conducted under the RTA (ie, for a dispute less than $10,000). And plainly, this was a very minor claim. In any event, the tenants had vacated the residential premises at 15 November 2020, as Mr Bajaj had demanded them to. In this respect, see also s 60(1)(f) of the RTA, regarding the tenants abandoning premises without agreement.
65 It is thus clear the learned magistrate on 16 and 25 February 2021 was at then, only determining the two subsequent RTN applications I have now mentioned. They were the subject of his eventual orders. Magistrate Darge was not then revisiting or reopening the earlier orders of 25 November 2020 as made to resolve Mr Bajaj's first application. They remained in place.
66 All of this is essentially background to the s 36(1) review order Mr Bajaj now seeks today essentially to quash Magistrate Darge's decision on a basis of an asserted lack of jurisdiction.
67 In terms of the Magistrates Court's jurisdiction to hear residential tenancies claim, I refer generally back to part 3 of the RTA, particularly in respect of the Magistrates Court's jurisdiction over 'prescribed disputes'. Towards such disputes, s 12A says:
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. (emphasis in bold)
... 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.
69 Next, by pt 4 of the RTA, for minor cases, a magistrate is to act informally. Part 4 also authorises and empowers magistrates to dispense, where necessary, with the rules of evidence: see RTA ss 13, 13A and 14. In particular, section 14 says proceedings under the RTA shall be heard and determined 'wherever practicable within 14 days after they are instituted'. Where that is not practicable, then proceedings are to be determined as expeditiously as possible.
71 I have already referred to the legislatively expressed finality of decisions that are rendered under the RTA: see s 26. Consequently, there is no appeal avenue. There still is, however, the limited constitutionally protected recourse to this Court under RTA s 26(2), which as seen, looks to qualify s 36 of the Magistrates Court Act 2004 (WA).
72 To reiterate, s 26 of the RTA says:
(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 proceedings 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) The section applies despite Part 7 of the Magistrates Court (Civil Proceedings) Act 2004. (my emphasis in bold)
73 For this case, it could only be via the limited recourse left via s 26(2) of the RTA that Mr Bajaj might potentially argue to obtain from this Court a review order under s 36(1) of the Magistrates Court Act 2004 (WA).
74 In relation to a judicial officer whose decision is impugned, such as a magistrate, the usual course would be for the State Solicitor's Office to be notified were a review order then to be issued ex parte against the orders of a magistrate. Ordinarily, of course, that judicial officer would not otherwise participate. They would simply abide the outcome. The State Solicitor's Office might intervene to assist the Court or the Attorney General may appear on an amicus basis by leave. The Palmers, as the other interested parties, would, if a review order issued, then need to be notified and given an opportunity to participate as active contradictors.
Obtaining a s 36 review order
75 A s 36(1) review order, as was explained both by Corboy J (in Saldanha v Fujitsu) and by McLure JA in Rayney v AW, is effectively only the first of two stages under a possible two stage application to this Court for s 36 relief - akin to the former 'order nisi' procedure for obtaining prerogative writ relief. To obtain stage two 'order absolute' former prerogative writ analogous relief outcome via s 36(4)(b) (as used to prevail by analogy in the court's exercise of jurisdiction concerning the issue of prerogative writs before amendments to RSC O 56), an inter partes hearing would normally be expected.
76 Essentially, a first stage 'order nisi' is akin to a s 36(1) first stage review order application. It is mandated by RSC O 56A to be heard ex parte. This provides a level of necessary filtration - to essentially weed out wasteful or unmeritorious applications before needless expense might otherwise be incurred. The first stage process is essentially to impose some minimal level of curial quality control - so only applications of arguable merit proceed any further to a (usually) contested hearing.
77 Now, as seen, it was here essentially only a $2,000 bond argument by the Palmers that was the subject matter of the hearing before the learned magistrate on 16 February 2021, coupled with Mr Bajaj's second RTN application. The two matters later became the subject of verbal reasons and the orders made by the Magistrates Court on 25 February 2021.
78 Mr Bajaj was then pursuing his claims for liquidated rent amounts or for damages (it is not clear which) - for just over $4,000. Essentially, the claim looks to have contended Mr Bajaj had sustained financial loss
- by the Palmers' alleged breach of lease, or that he was entitled to some liquidated amount of greater rent from the Palmers.
79 It is not clear from Mr Bajaj's materials and by his five prolix so‑called grounds, how he actually had put his case. He looks to invoke in his support, pt 2, div 2 of the Residential Tenancies (COVID-19 Response) Act 2020 (WA) to somehow argue, in effect, against the termination order that relief he obtained by order of the Court on his first RTN application, to say the lease could not have been lawfully terminated, and so, it ran on regardless past 25 November 2020 until his new tenants moved in. I cannot accept that as even arguably correct.
80 Mr Bajaj seems to be arguing, fundamentally, that (notwithstanding a termination order as came to be issued in the Magistrates Court at his behest on his first RTN application, at 25 November 2020) that somehow, the as terminated lease was nevertheless, not terminated, and so, continued on past 25 November 2020 until his new tenants took up their occupation of his Shenton Park premises, at 4 January 2021. I also note that his new tenants were then to be paying to Mr Bajaj a higher rent of an extra $90 a week - above the level of the $535 a week rent the Palmers had been paying to him up to 15 November 2020. Had the Palmers insisted on staying on until the end of March 2021, as they might have under the COVID emergency legislation, their rent could not have been lawfully increased unilaterally by Mr Bajaj.
81 There were problematic issues arising over such a lost rent or damages claim running to 4 January 2021, as advanced by Mr Bajaj before the learned magistrate. However, this Court is only concerned with the magistrate's jurisdiction to render those decisions - not with whether they were correct or otherwise. It seems to me, having heard Mr Bajaj in person verbally at the hearing this afternoon and having read his proposed grounds of his review order application and his long affidavit, that a key premise of all his arguments, is fundamentally flawed. They are all essentially premised upon Mr Bajaj seeking to resile from, and to contradict, the termination of the lease with the Palmers under the order of the Magistrates Court that he himself had sought and obtained on 25 November 2020 and which remains in place. At that time, termination of the lease was recognised and ordered by the Court, with the precise date of termination to be ascertained as a subject of later proceedings if ever required.
82 It seems that the 25 November 2020 order was left open as to the precise termination date beforehand, for a purpose of any potential future argument as to the precise date of termination of that lease before 25 November 2020. Leaving that precise termination date issue open then, was a part of the permissible informality in such proceedings and in alignment with the exhortation in the residential tenancy legislation to strive to get the parties to reach a settlement of their dispute by agreement - as the primary objective. The tenants had by then vacated the premises at 15 November 2020. They had handed the keys of the premises back to Mr Bajaj. Consequently, Mr Bajaj's core argument his residential tenancy lease with the Palmers did not terminate by 25 November 2020 and had run on past 25 November 2020 - is misconceived. That lease was ended by not later than 25 November 2020. A misconception lies at the heart of Mr Bajaj's arguments under all his grounds, as I would strive to assess them. But Mr Bajaj's inherent suggestion that the learned magistrate could not proceed to determine both those RTN matters as he did because of a lack of jurisdiction - cannot be accepted
83 In any event, if it matters at all, I agree substantially with the verbal reasons as were provided by the learned magistrate, on 25 February 2021. There were some fundamental problems at that time in terms of Mr Bajaj's entitlement to anything other than $50 for a water utility amount that the tenants had then accepted liability for. They were entitled to their bond back aside from that small amount being deducted.
84 Another underlying problem, in terms of Mr Bajaj's mooted arguments over damages, is whether any so-called breach damages across a seven week period of 15 November 2020 to 4 January 2021 were arguably caused by a breach of the tenants. What was their breach? It will be remembered that they had been given a formal notice to quit the premises by Mr Bajaj in October 2020 and they did that and paid all the rent due and payable up to 15 November 2020.
85 Because the Palmers vacated as they were commanded by Mr Bajaj, it seems more likely that, in fact, the true cause of them leaving at 15 November 2020 - was Mr Bajaj himself. For this case, that causation issue arises for any post 15 November 2020 claimed damages (small‑scale as they must necessarily be) in a context of $535 weekly rent. A potential claim for unpaid rent beyond 15 November 2020, if that is what Mr Bajaj was actually seeking (it is unclear), would not exceed a claim for rent over a period of 10 days, as between 15 November 2020 (when the Palmers left the premises) to 25 November 2020, (when the Magistrates Court order was made confirming then on Mr Bajaj's first RTN application that his lease with the Palmers 'is terminated').
86 Weekly rent of $535 for 10 days would be at $76.43 a day (X 10 days) between the 15 and 25 November 2020. That would produce, at best for Mr Bajaj, only a possible rent claim amount of $764.28. Again, none of this goes towards a potentially arguable jurisdictional error by the learned magistrate.
87 After 25 November 2020, there could arise only questions of breach damages - including as to how such damages were caused and whether, in fact, Mr Bajaj had made reasonable efforts to try and find a fresh tenant in the remaining seven (7) week period of 2020 before his new tenants came to occupy his premises. Additionally, Mr Bajaj would likely need to give credit for the $90 per week higher rent he received from his new tenants up to the end of March 2021. Again, these were all factual questions properly to be determined before the learned magistrate. They do not go anywhere now to support Mr Bajaj's lack of jurisdiction arguments in support of a review order.
88 The learned magistrate held full, indeed exclusive, jurisdiction to reach all the conclusions he did on 25 February 2021. He had exclusive jurisdiction under the RTA to do just that.
89 Mr Bajaj's arguments underlying his grounds are invariably predicated on him denying the efficacy of the Magistrates Court order going to the termination of the tenancy with the Palmers - at not later than 25 November 2020. I reiterate that, in fact, the subject matter of the present application of Mr Bajaj are the decisions rendered by Magistrate Darge not at 25 November 2020, but at 25 February 2021. That is an insurmountable problem for Mr Bajaj.
90 A further problem counting against an issue of a review order are that Mr Bajaj's grounds 1 - 5 as formulated are prolix and largely unintelligible. No review order can or should ever issue upon any of them.
92 It seems that grounds 1, 3 and 4, as framed, look to be seeking relief in the character of a mandamus like order under s 36(1). How or why a mandamus-like order might be potentially available is something I am simply unable to discern an argument for. When I asked Mr Bajaj about this, he said his grounds were also meant to embrace certiorari. Even if that were the case, I still do not follow his arguments under grounds 1, 3 and 4.
93 The only analogous to certiorari relief-specific ground looks to be ground 2. For that ground, an argument about the learned magistrate misunderstanding the nature or limits of the functions and powers (conferred under s 14 and s 20M of the RTA), plus general arguments about an abuse to list a trial hearing to redetermine the issue of termination are also compound and without any potential merit.
94 Longish ground 5 makes reference to an alleged denial of procedural fairness. With respect to Mr Bajaj, I cannot detect any foundational basis for any rational procedural unfairness argument. One of his arguments buried deep in ground 5 appears to be that there was some failure by the magistrate to draw Mr Bajaj's attention to s 60(1)(g) of the RTA. But as already seen, by the very face of hid first RTN application, Mr Bajaj himself had made an explicit reference to that provision in the RTA. There can be nothing in that.
95 In any event, if there was some error to be ascertained out of the reasons of the learned magistrate, it seems to me, at best, it could only be a factual error - and thus it would be an error made within jurisdiction. Those circumstances would not fall within the ambit of s 36(1) of the Magistrates Court Act 2004, or indeed, the more truncated basis of review via s 26(2) of the RTA - in terms of showing an arguable lack of jurisdiction in the learned magistrate under the RTA itself.
96 Consequently, after listening to Mr Bajaj in person verbally seeking to elaborate on his five grounds - which I confess I have experienced some difficulty comprehending - I am not at the end of the day, satisfied that any of them hold any level of potentially arguable future merit.
97 Their small-scale economic value, even if Mr Bajaj could show something, seems to me, at best, to be in the realm of around $4,000 for him. At worst, the claim is for $0. If his claim is a claim for 10 more days extra rent, over a period between 15 November and 25 November 2020, that is only a claim in the realm of about $764, or thereabouts. Plainly, the Palmers were entitled to their bond money back less the $50 utility fee deduction.
98 There is a policy reason for why challenges against RTA decisions are limited. The legislature plainly bars appeals against such decisions. To the extent that it must still recognise a limited constitutional basis for judicial review against jurisdictional error, then the legislature, under principles as were explained in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, [91] - [100] acknowledges a limited scope for some level of judicial review relief in the face of a true jurisdictional error. But that is far from the position here.
99 Manifestly, there was a firm basis in the jurisdiction of the learned magistrate to deal with what were two RTN applications filed in the Magistrates Court, essentially over an argument concerning the return of a $2,000 bond and the cross‑arguments, in effect, from Mr Bajaj over some small amounts claimed for lost rent, or for damages. There was no lack of jurisdiction. On an assessment of the many pages of materials as were submitted to this court (particularly the transcript and reasons for decision of the learned magistrate), I do not detect any arguable basis for a grievance by Mr Bajaj as to his denial of natural justice, or as to any breach of the rules of procedural fairness towards him. Quite the contrary, in fact.
100 Mr Bajaj was afforded a very full and fair hearing in the Magistrates Court during February 2021. Under the circumstances, I refuse and decline to grant a review order under s 36(1) of the Magistrate's Court Act.
101 Given Mr Bajaj represents himself, there will be no order as to legal costs in respect of these proceedings, and his application is thus, dismissed. Orders will issue in the above terms.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
(2006) 32 WAR 501
(2008) 218 FLR 222
(1995) 184 CLR 163
(1939) 62 CLR 464
(2010) 239 CLR 531