MATTER : An application under the Magistrates Court Act 2004 s 36 for a review order against Greg Cockram, Magistrate of the Magistrates Court of Western Australia at Perth

Magistrates - Application for review order under Magistrates Court Act 2004 (WA) s 36 read with Residential Tenancies Act 1987 (WA) s 26 - Whether arguable case of denial of natural justice where orders for termination of tenancy agreement and delivery up of premises made in the absence of tenant - Test for making stay order - Whether test of a danger of imminent irremediable or serious damage met

Magistrates Court Act 2004 (WA), s 36

Residential Tenancies Act 1987 (WA), s 26

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

Snook v Lawrence [2007] WASC 111

Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7

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

1 SIMMONDS J: Mrs Beverley Miller is presently occupying a home in East Victoria Park. She was a tenant in that home under an agreement with Homeswest. The agreement was the subject of an application brought in late May of this year by the Housing Authority, trading as the Department of Housing, for the termination of the tenancy agreement and for the delivery up of the home.

2 The home in East Victoria Park is one that Mrs Miller still occupies and occupied at the time with at least some members of her extended family including a daughter and several children of that daughter as well as children of another daughter. There are as well connections between Mrs Miller and still further members of her extended family that are centred in some way or another on Mrs Miller's residential arrangements.

3 On 11 June 2009 Magistrate Cockram in the Magistrates Court in Perth made an order that terminated the tenancy agreement and called for Mrs Miller to deliver up possession of the East Victoria Park premises. The orders were to take effect from 18 June 2009.

4 Mrs Miller was not at the hearing on 11 June 2009. On the material before me, she suffers from a number of illnesses of some severity, including a complicated type 2 diabetes with end organ affliction and peripheral vascular disease. Her non-attendance before the magistrate on 11 June was due to at least one or more of those conditions.

5 In June 2009, the department told Mrs Miller that it would not enforce the orders made on 11 June 2009 on condition she complied with a trial program against antisocial behaviour. In or about September 2009, that is, at least six weeks ago, the department formed the view that Mrs Miller had not complied with the trial program and gave notice to Mrs Miller that the department was going to proceed to enforce the orders of the learned magistrate. On 22 October 2009, following a meeting with her for the purposes of attempting to conciliate a complaint Mrs Miller had lodged at the Equal Opportunity Commission, the department agreed to extend arrangements for Mrs Miller to occupy the home in East Victoria Park until 2 November 2009.

6 On 28 October 2009 the solicitors for Mrs Miller wrote to the department asking for an extension of her stay in the East Victoria Park home for four weeks. On 29 October 2009 the department responded, declining to grant the extension.

7 Mrs Miller has applied to this court for a review of the Magistrate's decision on 11 June 2009 to make the orders terminating the tenancy agreement and for delivery up of the home in East Victoria Park, as well as for a stay of those orders.

8 I turn first to the principles applicable to that application.

9 The Residential Tenancies Act 1987 (WA) (RTA) s 26 has the effect that applications to this court for orders to review decisions to which s 26 applies can only be made in cases of lack of jurisdiction or denial of natural justice. It is not in contest before me that RTA s 26 applied to the proceedings before the learned magistrate. The proceedings before me then, which are for review orders under s 36 of the Magistrates Court Act 2004 (WA) must be read in the light of RTA s 26. Mrs Miller's application, it was said, falls within the provisions of those two pieces of legislation by reference to what is said in this case to be a denial of natural justice.

10 At this stage in the proceedings the relevant test for making out a denial of natural justice is that of making an arguable case. The reason for that test is of course that these proceedings are merely the first stage of an application for the review of the magistrate's decision under s 36 of the Magistrates Court Act and O 56A of the Rules of the Supreme Court Act 1971 (WA).

11 By an arguable case it is meant one with reasonable prospects of success: De Alwis v Department of Housing and Works [2006] WASC 14 (EM Heenan J) [21] referred to in Snook v Lawrence [2007] WASC 111 [50].

12 It is a separate matter, however, to obtain a stay of the decision in respect of which review orders are being sought. There is no doubt that a stay may be obtained: see O 56A r 3(3)(d). There is however a difficult question having to do with the basis upon which the stay may be obtained. The difficulty lies in the requirement that the application for review orders must be brought on an ex parte basis: O 56A r 2(1)(a). The evidentiary material before the court comes from a single source, the applicants themselves, and there is no contradicter before the court to engage with that material.

13 The authorities concerned with stays in review order proceedings are sparse indeed and so far as I can tell the particular implications for the test for a stay of the ex parte character of the proceedings have been engaged at length only in Snook my decision previously referred to.

14 The basic test for a stay in proceedings of the character of review order proceedings, which I would identify with the order nisi process in relation to prerogative writs, is referred to in Zucal v Harper [2005] WASCA 76; (2005) 29 WAR 563 at [58]. Citing the judgment of Owen J in Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7, Steytler P, with whom Wheeler and Pullin JJ agreed, described that test as 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' with the phrase 'preserving the subject matter of the litigation' to be understood in a very broad sense.

15 I insert that in relation to eviction from residential premises, preserving the subject matter of the litigation is, it seems to me, considered in a very broad way, perfectly capable of covering the impact on the tenant and those dependent on the tenant of such eviction.

16 The authorities on the order nisi to which Snook referred state that there may still be a stay notwithstanding the ex parte character of the proceedings but that a particular burden is cast both on counsel to ensure that all relevant matters are fully before the court and on the court itself.

17 In Snook [26] I said that the test for a stay in the context of ex parte applications for a review order was that for stays in ex parte applications for orders nisi in Zucal [60]. That test is that a danger of destruction of the subject matter of the suit or irremediable or serious damage which is imminent must have been shown.

18 Before me, counsel, as I understood her, submitted that the test from Zucal [60] was not applicable to applications for review orders, notwithstanding my conclusion in Snook, because of the required ex parte character of the hearing of such applications, or at least that that test was not applicable where, as here and unlike in Snook, the court could be satisfied that the other side had had notice, not only of the proceedings for the review order themselves, but also of the application to the court for a stay.

19 In this case I note that the application to the court for a stay was notified to the other side only on the very eve of the proceedings, as counsel properly admitted. At the same time, I should add that the department was undoubtedly not taken by surprise by that application as the department had been informed of the intention to apply for a stay some days before.

20 In my view, however, it is appropriate to test the question whether a stay should be granted by the test in Snook [26] notwithstanding the required ex parte character of the proceedings and notwithstanding the level of notice that was provided in this case. I say that because the substantive matters that Steytler P addressed in the extract from Zucal are necessarily a feature of an ex parte application for a stay, namely the evidence is only from the applicant and there is no contradictor before the court to deal with that evidence.

21 At least one implication of this is of course that prejudice to the other side, as counsel for Mrs Miller frankly acknowledged, is a matter with respect to which the court is dependent on the applicant and, as this case itself illustrates, the applicant, putting the matter at its very lowest, does not have a strong incentive to instruct legal representatives as to matters of prejudice to those whose orders she is seeking to upset. I repeat, however, that this does not mean and in this particular case did not mean that a stay might not be ordered.

22 I turn then to the application of these principles in this case and to the first of the two issues that I have identified, namely, whether or not Mrs Miller has made an arguable case for the making of the review orders she seeks.

23 Mrs Miller's counsel relied on denial of natural justice. The denial of natural justice is rested in Mrs Miller's absence from the proceedings before the learned magistrate in which he made the orders that he did. The explanation for her absence is the one that I previously described. It is not clear whether or not that explanation was before the learned magistrate and indeed whether or not there might have been other explanatory material going to her absence that the learned magistrate had before him.

24 However, I note that even a state of the evidence with respect to such a form of lack of natural justice as this one does not prevent the test of arguable case being met. I refer for this purpose to the decision of his Honour Heenan J in De Alwis [21]. However, that case involved a slightly different set of facts, where the person seeking to resist the eviction being sought against him was initially present in court but then collapsed and was forced to withdraw.

25 While this case is not as strong on its face as De Alwis, it seems to me that there is an arguable case with some prospects of success that there was here a denial of natural justice in the Magistrates Court proceedings in what was the first substantive hearing in the matter, a denial to be found in proceeding in the unexplained absence of the applicant. Of course, to repeat, an explanation may go to significantly qualify the position that I have described to the point where a deprivation of natural justice is not shown.

26 That arguable case would perhaps not have sufficient strength for the making of a review order if, even had Mrs Miller been present, it were clear that there is nothing she could reasonably have said against the orders being made against her.

27 However, in this case I am satisfied that I do not have any indication of such a position; indeed, to the contrary, there is material which would suggest that Mrs Miller might well have had matters to put to the learned Magistrate which at the very least might have caused him to stay his hand in the making of the orders that he did on 11 June 2009.

28 The bases for the orders that were applied for, and in respect of which the magistrate made his decision on 11 June 2009, were two. They were both breaches of the tenancy agreement in respect of which notices under the RTA were served on Mrs Miller, so far as the evidence before me would indicate, and following which there were the proceedings initiated in the Magistrates Court.

29 The first breach or set of breaches was a failure to maintain, to which the ability of Mrs Miller to maintain her premises as affected by her illness might have been relevant to the learned magistrate's determination, and in respect of which Mrs Beverley Miller might have been in a position to indicate that there was now a prospect of the management of that condition which would address the failure to maintain.

30 The second kind of breach was the use of the premises for illegal purposes, which was supported by two electronic mail documents that apparently were before the learned magistrate. One was as to the execution of drug warrants at the premises in East Victoria Park in late 2008 and the other was a description of visits to those premises in the first half of 2009 which showed no incidents to report. The argument Mrs Miller might have made in respect of that material is that there had been attempts made with some success to address the problem referred to, removing it therefore as a basis upon which termination might properly proceed.

31 This is not to say that those arguments in relation to the two bases for the orders on 11 June 2009 would necessarily have been availing, just that I could not conclude there were simply none Mrs Miller could have put.

32 I therefore conclude that there is indeed an arguable case of denial of natural justice and therefore a basis upon which review orders could be made.

34 As to that application, there is strong evidence, if I may so characterise it, of Mrs Miller's position from a social worker for the Department of Health and from the Department of Child Protection, all broadly to the same effect. That effect is that Mrs Miller's extended family would be seriously and adversely affected by Mrs Miller's eviction from the home in East Victoria Park.

35 The evidence includes that her eviction would mean that, regardless of what arrangements might possibly be made for her accommodation and for the accommodation of the other members of the family currently living with her, they could not all be accommodated together. That would result in a disruption of the family that would have both physical and emotional impacts. There are particular members of the extended family who have been or are currently staying with Mrs Miller at the East Victoria Park home who have particular disabilities that would make them especially sensitive to such impacts. There were grandchildren referred to. I notice also that the grandchildren are either only early teenagers or very young and include one infant.

36 It seems to me that this material satisfies the test that I have previously indicated I should follow with respect to a stay and ex parte proceedings of this character, that is to say, that the test is met of a danger of irremediable or serious damage imminent from the enforcement of the order whose stay is being sought.

37 It may be that the strength of the case for a stay is affected by the relative strength or weakness of the arguable case for the issue of the review orders. That would be consistent with the approach adopted by the courts in relation to interlocutory injunctions.

38 However, it is a little difficult to see how, given the stringency of the test that I have described I must follow, a danger of imminent irremediable or serious damage, that could be significantly affected by the strength or the weakness of the case for the review orders. At the same time, at the very least the possibility that it might be affected by that should be recognised.

39 That having been said, and accepting for the sake of the analysis that the case for the review orders is of a kind relatively close to the borderline of arguability given the skeletal character of the material before me, nonetheless, even in the face of such evidence, the test of a danger of imminent irremediable or serious damage is met.

40 It seems to me then, for the reasons that I have described, that review orders should be made and that a stay order should also be made.