5. Resolving disputes

Contributed by x current to 29 May 2017

5.1.1 Court action

1. The majority of residential tenancy matters are disputes about less than $10,000. The Magistrates Court has exclusive jurisdiction over residential tenancy matters involving claims of $10,000 or less (known as "prescribed disputes").(1) For the purposes of this section, we are only dealing with prescribed disputes. A tenant who is appealing a matter which involves more than $10,000 should seek further advice.

5.1.1.1 Disputes involving $10 000 or less

5.1.1.1.1 Registrars' powers

5.1.1.1.2 Procedure

5.1.1.1.3 Representation

5.1.1.1.4 Costs

5.1.1.1.5 Performance orders (and restraining orders)

5.1.1.1.6 Compensation orders

5.1.1.1.7 Other orders (including order that rent be paid to MC)

5.1.1.2 Disputes involving more than $10 000

5.1.1.3 Appeals

If the tenant was present at the hearing

The decision was made by a Magistrate

2. A tenant who is unhappy with a decision made by a Magistrate at a hearing that they attended, has limited options for appeal.

3. A Court order made by a Magistrate in a residential tenancy matter where both parties were present is final and binding (s26(1) Residential Tenancies Act 1987 (RT Act)) and no appeal can be made against that order.

4. Notwithstanding the bar on appeals, where there has been a denial of natural justice, or where the Magistrates Court had no jurisdiction to make the order (s.26(2) RT ACT), a tenant can apply for a review order under s 36 of the Magistrates Court Act 1987 (WA). An application for a review order must be made to the Supreme Court. Applications for review orders are beyond the scope of this publication at present.

5. A tenant who believes they may have been denied natural justice or that the Magistrates Court had no jurisdiction to make an order should seek further legal advice as soon as possible. The Supreme Court rules don’t specifically provide a limitation date for judicial review, and the general limitation period of 6 years is likely to apply for making an application for a review order, however it may be futile to do so where the lessor has already retaken possession of the premises, and almost certainly where the lessor has already re-let them to a third party.(2)

The decision was made by a Registrar

6. In a residential tenancy matter, a Registrar can only exercise the Court’s jurisdiction if the application is not disputed or if a party to the application does not appear. (s 13A (2)(b) RT Act).

7. This means that where both parties are present, Registrars can only make orders by consent.

8. A decision by a registrar to enter judgment by consent, is a judicial decision which can be appealed against. (Re Michelides; ex parte Chin [2008] WASC 256, per Hasluck J at [129] – [130])

9. A person who is dissatisfied by a decision made by a registrar may appeal to a Magistrate under s 29 of the Magistrates Court Act 2004 (WA).(3) *There is an absolute right to appeal against a Registrar's decision, even if it was by consent*(4).(5)

10. Magistrates Court Act 2004 [WA] s 29(4) provides that the appeal is by way of a "new hearing". A "new hearing" is a hearing de novo – see Priority Networking v Peterson [2018] WASC 36. In an appeal de novo, "the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error."(6) Hearing the matter afresh means that the court must take into account the facts and circumstances as they are at the time of the appeal hearing. That means that if the tenant does not consent at that time, consent orders cannot be made, and those being appealed against ought to be discharged (cancelled).

11. In Darcy & Darcy(7) the parties agreed to final consent orders being made by a Registrar of the Federal Magistrates Court following a conciliation conference. The Federal Magistrates Act 1999 (Cth) provided that such orders could be appealed against within a certain time, which could be extended. Under the Federal Magistrates Rules 2001 (Cth) an appeal against a Registrar's decision had to proceed "by way of a hearing de novo"(8). One of the parties appealed against the consent order, merely on the basis that they had withdrawn their consent. The court noted its concern over:

"[…] the policy implications of a party being permitted, for any reason (or even no reason at all) to resile from final orders made on the basis of prior consent merely based on the happenstance that those orders were approved by a Registrar and not a Federal Magistrate. It would not be well for parties or practitioners to treat the review process as a de facto seven (7) day “cooling off period” on final orders approved by a registrar."

Notwithstanding that,

"The comments of the majority of the judges of the High Court in Harris,(9) and of the learned judges in the other authorities referred to above, lead [to the conclusion that] the mere fact of the Applicant withdrawing her consent and making her application that the consent orders be discharged brings the matter within the scope of the Court’s discretion to review the decision without the Court needing to have regard to the factors traditionally pleaded in support of an application under s.79A. The absence of the Applicant’s consent is the state of affairs as at the time of the rehearing before me."

12. These cases (Darcy & Darcy and the cases referred to therein and Priority Networking) taken together are strong authority for regarding the right to appeal to a Magistrate from the decision of a registrar as an absolute right for a new hearing before a Magistrate, with 21 days to make an application (noting that time period can be extended by the Court even if it has elapsed.(10) It should be noted here that, if this right exists, it would be one that a lessor would be entitled to use, in just the same way as a tenant.

13. A tenant who wished to appeal the making of consent orders by a Registrar would be entitled (under s 13B RT Act) to appeal to a Magistrate. That is a process that we will go on to discuss in the context of appealing a Registrar's decision that was made in the absence of the tenant.

If the tenant was not present at the hearing 14. If the tenant was not present at the Court hearing, there are two different processes for appealing the decision, depending on whether the decision was made by a Magistrate or a Registrar.

The decision was made by a Magistrate 15. If the tenant was not present when the order was made, they can make an application under section 17 of the RT Act to vary or set aside the order. The Act requires that the application must be made within 14 days after the making of the order.(11) A late application would require an order of the Court to extend this limitation date, and this may not be provided.

16. The relevant form is Form 16: Application to Vary or Set Aside Order.

17. The cost for lodgement of this application is $65.00, unless the tenant is eligible for the fee to be reduced in which case it is $19.70 and upon lodgement the tenant will be given a date for the hearing.

18. At the hearing, it seems that the Court will usually expect the tenant to show that they had a valid reason for non-attendance at the original proceedings and to show that they have an arguable case on the merits, that is, that they may be successful at a new hearing. (Note however that on the face of it, s 17, gives an unqualified right to a tenant to appeal a decision made in their absence.)

19. If the tenant is successful, the Court may set aside the order and give the tenant a date to come back for rehearing, or it may immediately hear the case. It is often the case that the tenant has not received any disclosure at this stage, and in these circumstances the tenant ought to seek disclosure orders and a date for rehearing which gives them enough time to prepare subsequent to receiving disclosure.

The decision was made by a Registrar

20. Where the decision was made by a Registrar, the RT Act provides two apparently possible avenues of appeal: via s 17 and s 13 B.

21. Section 17 provides as follows:

17. Application to vary or set aside order (1) A person who is or was a party to any proceedings on an application under this Act may apply to a competent court for an order varying or setting aside an order made in those proceedings if the application was heard in the person's absence. (2) An application to vary or set aside an order, other than an order under section 84, must be made within 14 days after the making of the order.

5.1.2 Enforcement of judgments

5.1.2.1 By tenant

5.1.2.2 By lessor

5.1.3 Suspending Enforcement

Notes

1 : Residential Tenancies Act 1987 Act (WA) ss 12 – 12A.

2 : See the discussion below, at [52], and the footnote discussing De Alwis v Miriklis BC9603898 (Unreported) WASC 1996.

3 : Residential Tenancies Act 1987 (WA) s 13B; Magistrates Court Act 2004 (WA) s 29.

4 : But see Form 6 Application for Disposal of Bond Money, which has a section for the respondent to sign if she consents to the bond being disposed of as sought by the application: "Form of Consent: I/we consent to an order being made in the terms of the application and acknowledge that this consent may not be withdrawn." It is unclear quite what the effect of this "acknowledgment" in the form is, but there is an argument that it is void to the extent of any inconsistency with the Magistrates Court Act 29, which provides for a hearing de novo. That would only be the case where the consented to order was made by a Registrar, however. And it is not clear whether Registrars actually do make such orders, although they would appear to have authority to, because they have the power to make orders where the matter is not disputed. It may not be possible or consequential for a party to acknowledge something that is incorrect in certain circumstances, even if that acknowledgement is in a ‘form approved by the minister’. Parties seeking to appeal against a consent bond disposal order should seek further advice.

5 : It should be noted that a consent order made by a Magistrate (or Judge) not made by a Registrar cannot be overturned just because a party later changes their mind. However consent orders may still be overturned "on the same basis as the underlying agreement may be set aside". That would depend upon the existence of a ground which would render a simple contract void and includes grounds such as illegality, misrepresentation, duress, fraud, undue influence, abuse of confidence, or non-disclosure of a material fact where disclosure is required. It might also include situations where the tenant did not understand what they were consenting to, perhaps because they are hearing impaired or a person for whom English is not their first language. Because in the Residential Tenancies context appeals against decisions made against Magistrate's decisions are so severely curtailed by s 26, it is difficult to see how consent orders made by a Magistrate could be overturned in any event, unless the decision can be overturned with a judicial review order.

6 : Lacey v Attorney-General of Queensland [2011] HCA 10 at [57]. An appeal de novo can be made without having to show any error was made (CVW Group Holdings Pty Ltd -v- Addison [2011] WASC 267 at [17]). See also Harris v Caladine [1991] HCA 9; (1991) 99 ALR 193, per Brennan J at [14] and Toohey J at [5].

7 : Darcy v Darcy [2012] FMCAfam 664 (17 August 2012).

8 : Federal Magistrates Rules 2001 (Cth) reg 20.03.

9 : Harris v Caladine [1991] HCA 9; (1991) 99 ALR 193.

10 : Residential Tenancies Act 1987 (WA) s13B and Magistrates Court Act 2004 (WA) s29(2)-(3)

11 : The Court has the power to extend the 14 day period under s 20(f) Residential Tenancies Act 1987 (WA).

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