1 MURRAY J: The applicant, Mr Schaefer, is an elderly gentleman of 70 years of age. He is an aged pensioner. He resides in a unit which, until recently, he rented from the respondent. He has been there since 2002, under a tenancy agreement dated 29 July 2002.

2 As I understand it, he is by no means a bad tenant. He lives quietly, pays the rent and generally complies with his obligations under the lease. The lease has now been terminated. Mr Schaefer continues to reside in the unit, but he is holding over. It is merely the case that, by grace of the respondent, he has not thus far been evicted.

3 By cl 7.1 of the agreement, each of the respondent, trading as Homeswest, and the tenant, Mr Schaefer, are obliged to comply with the Residential Tenancies Act 1987 (WA) (RTA). Apart from that, cl 13.1 provides that, '[t]he tenant must maintain the premises in a clean and tidy condition at all times'.

4 If there is considered to be a breach of the agreement by the tenant, cl 23.1 provides for a notice of breach which must require the breach to be remedied. Under cl 23.3, if that does not occur, notice of termination of the agreement may be given, to apply not less than 14 days from the notice of breach.

5 The proceedings brought by Mr Schaefer to this court have their genesis in an inspection of the unit conducted by the respondent's officer, a Ms Barley, on 1 June 2010. Ms Barley took photographs of the interior. They show that almost the whole of various rooms and areas in the unit are covered with a multitude of different belongings. They are largely papers and open boxes of videos, records and other materials. In one place in the unit there is what appears to be a collection of fishing rods.

6 The kitchen appears to be relatively clear, at least in the sense that it appears to be possible to have access to a sink and a refrigerator. No doubt it is possible for Mr Schaefer to cook a meal. His bed is clear of clutter, but there is a multitude of different items otherwise in the bedroom. A room which may be a lounge/dining area is almost completely covered with various items, many of them stacked in cardboard boxes. At best, there appears to be an area of floor which is clear of these various goods, which would enable a person to have access to them if that person knew what he was looking for and where it was to be found.

7 The photographs were taken on 14 September 2010, but the evidence would suggest that the clutter depicted is that which was the cause of the proceedings which the respondent then initiated.

8 It appears that the parties entered into correspondence. On 17 June 2010, the acting regional manager of the south metropolitan region of the respondent, Ms Covich, wrote to the applicant about the inspection conducted on 1 June. She said that Ms Barley found the property to be, 'excessively filled with items stacked high, and covering the floor in some rooms'. Ms Covich continued:

The Department [of Housing] has a duty to take prudent care and precautions to guard against reasonably foreseeable and not insignificant risk of injury to any person entering the premises. A number of items in your property may constitute a safety hazard. Due to this, the Department will be issuing a work order and seeks your cooperation to clear the excessive belongings from your property to ensure no further action is required in this matter.

9 That happened on the following day. The work order is dated 18 June 2010. It requires the applicant to 'clear excessive belongings' from the unit by 27 July 2010.

10 It is evident that that did not occur. As a result, on 16 August 2010, the respondent issued a Notice of Breach. It is clear that the notice is that referred to in cl 23.1 of the tenancy agreement, and it relies upon and complies with s 62 of the RTA.

11 That notice refers to s 38(1) of the RTA. It is clear that the relevant part of that section is s 38(1)(a), which provides that it is a term of every residential tenancy agreement that the tenant, 'shall keep the premises in a reasonable state of cleanliness'. It is clear that that obligation is reinforced by cl 7.1 of the tenancy agreement, and it expresses the obligation imposed on the tenant by cl 13.1.

12 The notice of breach gave the applicant 14 days to comply with the requirement to rectify the breach. What the applicant did to restore the premises to a reasonable state of cleanliness was up to him.

13 In the event, it appears that he did nothing, and on 16 November 2010 the respondent issued a notice of termination, again relying, not only upon the tenancy agreement, but also upon the provisions of the RTA. The notice appears to me to be valid and in appropriate terms, but again, it relies upon the breach of the tenancy agreement by the failure to comply with s 38(1)(a) of the RTA, a failure to keep the premises in a reasonable state of cleanliness.

14 Vacant possession was to be given under that notice by 29 November 2010. It seems that the 14-day period required for such a notice by the RTA, s 62, was complied with, but the applicant did not vacate the premises.

15 He continued his opposition in the face of that notice, and in the face of an application by the respondent to the Magistrates Court at Fremantle, under s 15 of the RTA, for an order terminating the tenancy and giving possession of the premises to the respondent. That application was made on 12 December 2010.

16 It was heard by the Magistrates Court, Magistrate Lawrence, on 30 March 2011. His Honour made an order under the RTA that the tenancy was terminated forthwith, and the applicant before me was to vacate the premises by 4 pm on 29 April 2011.

17 That did not happen. Instead, on 9 May 2011, the applicant initiated proceedings in this court by way of an application to set aside the orders of the Magistrates Court on the grounds that the magistrate had made an error of law in his interpretation of s 38(1)(a) of the RTA, and the applicant had been denied natural justice in the hearing of the application by the respondent.

18 The latter part of the application before this court may be set aside immediately. The applicant has filed a number of affidavits. They do not demonstrate or seek to provide evidence that, in the Magistrates Court, the hearing of the respondent's application for an order terminating the tenancy was not conducted according to law. Mr Schaefer has advanced nothing before me to suggest that he did not receive the hearing before the magistrate to which he was entitled by law.

19 There is, however, a more fundamental, jurisdictional difficulty in the way of Mr Schaefer having his application dealt with in this court. I will deal with that before making some observations about the merits of the application. I consider it open to me to deal completely with the application, although there was no appearance for the respondent, because Mr Schaefer was able to demonstrate to me that when the court advised him of the date when his application was to be heard, he notified the Fremantle Magistrates Court and an officer of the respondent authority, Ms Hussell, the regional recovery officer of the south metropolitan region, which takes in the Coolbellup area where the unit in which Mr Schaefer resides is located. Having been advised of the date for the hearing, she apparently indicated that the respondent would not attend, but she asked to be advised of the outcome of the proceedings.

20 The jurisdictional difficulty confronting the applicant arises in the following way. I have said that it is clear that the application dealt with by the Magistrates Court was made under the RTA, s 15. Section 12 defines the term 'prescribed dispute' to include 'any matter that may be the subject of an application under this Act' other than a particular type of application not relevant to this case. Section 12A(1) provides:

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.

21 Such a dispute is a minor case within the meaning of the Magistrates Court (Civil Proceedings) Act 2004 (WA): s 12A(2). Under that Act, in respect of the hearing of such a dispute, there are provisions designed to provide a simple, informal procedure calculated to allow such disputes to be determined expeditiously, without undue expense and generally without the parties being legally represented.

22 Where the court is constituted by a magistrate, an appeal will lie to the District Court under Pt 7 of the Act, but only in the cases provided for in s 32(3) of the Magistrates Court (Civil Proceedings) Act, as follows:

Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds -

(a) that the minor case -

(i) was not within the jurisdiction of the Court; or

(ii) was not a minor case;

(b) that in dealing with the minor case there was a denial of natural justice; or

(c) that the judgment was beyond the Court's jurisdiction.

23 It is clear that having regard to the provisions of the RTA to which I have referred, this was a minor case, it was within the jurisdiction of the Magistrates Court, the orders made by the Magistrates Court were within power under the RTA, s 15, and, as I have already said, in dealing with the case his Honour Magistrate Lawrence did not behave in a way which amounted to a denial of natural justice. In the result, no appeal could be taken to the District Court.

24 Nor can proceedings to challenge the decision of the Magistrates Court in this court, in any form which might otherwise have been available to the applicant, be brought in respect of a dispute of this kind.

25 I have mentioned that under the RTA, s 12A(1), the Magistrates Court is given exclusive jurisdiction to hear and determine a dispute of this kind. Section 25 of that Act provides that the magistrate may reserve any question of law for the decision of the Supreme Court. But, of course, in this case his Honour was not asked to do so, and did not do so.

26 The RTA, s 26, provides for the finality of the proceedings in the Magistrates Court:

(1) An order made by a court under this Act is final and binding on all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof.

(2) No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.

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

27 I should observe that s 36 of the Magistrates Court Act 2004 (WA) provides a procedure, not by way of appeal, by which the decision of a magistrate may be reviewed by this court. Section 26(2) is concerned to restrict the availability of that process to a case where the Magistrates Court had no jurisdiction under the RTA in respect of the proceedings or that a party to the case has been denied natural justice. I have already indicated that neither situation applies to this case.

28 It can be seen from s 26(3) that it is designed to override the appellate process to the District Court, which is provided by the Magistrates Court (Civil Proceedings) Act. But so far as this court is concerned, the jurisdictional incapacity to deal with Mr Schaefer's application is made clear by s 26(1), which declares that the orders made by the Magistrates Court are not only final and binding, so that the proceedings may not be reopened at that level, but that no appeal shall lie in respect of any such order. In substance, although not in form, the applicant is seeking to appeal against the decision of the Magistrates Court. The court has no capacity to hear and determine those proceedings.

29 The application is dismissed, but, of course, I make no order as to costs.

30 Having said that, in parting with this case I wish to make some observations about it, in the hope that they may assist the applicant and the officers of the respondent to reach common ground which may result in the applicant being permitted to enter into a new lease and to remain in occupation of the unit in which he currently resides.

31 It is clear that although the original work order simply spoke of Mr Schaefer being required to clear excessive personal belongings from the unit, terminology which seems to have first come from the letter written by Ms Covich on 17 June 2010, the department's concern initially was that the clutter of items all over the unit might constitute a safety hazard, in that someone legitimately coming to the unit might suffer some injury.

32 However, when the Notice of Breach was issued, this line was not pursued. The formal proceedings instituted by the Notice of Breach must be taken to have relied on s 38(1)(a) of the RTA, and the obligation to keep the premises in a reasonable state of cleanliness.

33 Mr Schaefer needs to understand that it was not said that the unit was unclean, in the sense that it was dirty. What was being said was that it was not being kept clean because it was grossly untidy. In my opinion, while it is arguable that that is not the sense in which the tenancy agreement and the RTA, s 38(1)(a), uses the term 'a reasonable state of cleanliness', I think the provision is open to the interpretation placed upon it by the respondent.

34 As matters developed, the debate between the applicant and officers of the respondent degenerated as a result of the applicant's pedantic inquiries and observations, seeking clarification about what he was required to do. How much of his personal possessions, he inquired, was he required to remove? Was he being asked to simply throw away things which were of value, at least to him?

35 When at one time it was said that the respondent would be content if he reduced the clutter by half, Mr Schaefer responded that he could not see how any sensible judgment could be made about which half was to be thrown away and which half could be retained.

36 As to throwing things away, it seems to be clear that the officers of the respondent were trying not to be unreasonable. They have written to the applicant, giving him the particulars of two nearby self-storage facilities which might be reasonably accessible to the applicant's unit. They have told him what the cost of hiring such a unit would be. However, as I have said, Mr Schaefer is an aged pensioner. He says that he cannot afford to meet the cost of the hire of a self-storage facility. I did not, of course, undertake any inquiry as to how Mr Schaefer might order his household budget, but I would have no doubt that his means are limited.

37 I did inquire of him what the items were and why they were of value to him. He responded by saying that they were mainly musical items, recorded in various forms, eg, on vinyl records and on tape. Technology had now consigned these forms of recording to the status of historical interest only. But to Mr Schaefer, these items, which he was able to collect at only modest cost are, as he put it, 'pure gold'.

38 As time allows, he is engaged in recording these items on discs. But having done so, the original items do not lose their interest for him, and he likes to have them immediately accessible in his home so that from time to time he can take pleasure in looking at them and handling them.

39 I asked him if he has had anyone from a sound library undertake an evaluation of the historical interest and worth of these various items. He has not done so. He proposes to dispose of them by will to a charity. If the items are of value and may be sold, the charity would receive a financial benefit from doing so. Mr Schaefer says he would be content for the charity to discard or dispose otherwise of any items which they could not turn to a profit. It is not for me to say how realistic that proposal is.

40 In the circumstances, however, I do strongly suggest to the applicant that, armed with this explanation of his position, he seeks to reopen negotiations with the officers of the department. Abandon pedantic debate about what their orders originally meant. That is water under the bridge. The respondent has an enforceable judgment for possession.

41 And yet they have not been unreasonable, and there is evidence that they would like to arrive at a mutually satisfactory solution which would enable Mr Schaefer to remain their tenant of the unit under a new tenancy agreement. I suspect that that might be possible if he is prepared to dispose of that material which he can assess to be of no value, and if he finds a way to clean up and tidy the interior of the unit by storing the material that he would wish to retain on shelves, or at least in labelled boxes, stacked one on the other.

42 However that may be, so far as these proceedings are concerned, for the above reasons my course is clear and Mr Schaefer's application is dismissed.