5. Going to Court

This chapter is Contributed by staff of Tenancy WA and current to December 2018

5.1 Court action

The most common tenancy disputes that proceed to the Magistrates Court include:
  • bond disputes (usually where there is a significant amount in dispute);
  • termination for rent arrears;
  • compensation and rent reduction claims for maintenance and repairs; and
  • compensation claims for intentional or negligent damage.

5.1.1 Which jurisdiction at Court?

The Magistrates Court has jurisdiction to hear disputes up to the value of $10,000 in the "minor cases stream". The minor cases stream has simplified rules, and lawyers are only permitted in limited circumstances. As most residential tenancy matters are disputes for less than $10,000 this section addresses the minor cases procedures.

Applications for amounts over $10,000 and up to $75,000 are conducted under the general case rules, not a minor case rules, unless both parties agree it should still be handled as a minor case.

5.1.2 Registrars' powers

Registrars in the Magistrates Court are administrative court officials, who can exercise the authority of the Court when specifically empowered to do so by legislation. The Magistrates Court Act 2004, and the Residential Tenancies Act provide registrars with limited powers in residential tenancies matters.

The Residential Tenancies Act provides at s13A:

13A. Magistrates Court's jurisdiction

(1) For the purpose of exercising the jurisdiction conferred by section 12A and 13, the Magistrates Court is to be constituted by a magistrate.

(2) Despite subsection (1), a registrar of the Magistrates Court may, subject to the directions of a magistrate, exercise the court's jurisdiction in respect of any application that is to be dealt with in accordance with Part 4 of the Magistrates Court (Civil Proceedings) Act 2004 if --

(a) the application is within a prescribed class of applications; and

(b) either --

(i) the application is not disputed; or

(ii) a party to the application does not appear.

And the Residential Tenancies Regulations provides at regulation 7 (explanation of each application added in brackets by the author):

7. Applications prescribed for the purposes of section 13A(2)(a) of Act

(1) The following applications are prescribed for the purposes of section 13A(2)(a) of the Act --

(aa) an application under section 59D(4) of the Act; (Order for repayment of Tenant compensation bonds held at the Court)

(a) an application under section 73(1) of the Act; (Order for termination on an urgent basis where tenant causing serious damage or injury)

(ba) an application under section 76B(1) of the Act; (Order setting aside a notice establishing abandonment)

(b) an application under section 77(1) of the Act; (Order in relation to abandonment, pursuant to 78(A))

(ca) an application under section 78A(1) of the Act; (duplication, Order in relation to abandonment)

(cb) an application under section 78B(1) of the Act; (Review of order in relation to abandonment)

© an application under section 79(10) of the Act; (Process for lessors to pay to the Court the proceeds of the sale of a tenants abandoned goods)

(d) an application under section 79(12) of the Act; (Order for payment of monies from the rental accommodation account, in relation to abandoned goods)

(ea) an application under section 80A(8) of the Act; (Order for payment of compensation to the lessor for the reasonable costs of complying with the requirements with respect to the tenants abandoned documents)

(e) an application under Schedule 1 clause 8(1) of the Act; (Order for disposal of bond)

(f) any other application under the Act that is not an application in respect of which a party objects to a registrar of the Magistrates Court exercising the court's jurisdiction.

As a result, the Registrar is empowered to make final orders (exercise the Court's authority) in matters that are listed in regulation 7, where the application is not disputed, or a party doesn't appear.

The matters listed in regulation 7 are generally lower value issues or urgent issues.

Regulation 7(f) provides for 'any other application' that is not an application where a party objects to the registrar exercising the Court's authority.

Where a registrar has assisted the parties to reach an agreement at the pre trial conference, the registrar can make consent orders reflecting the parties' agreement, (if the parties do not object to the Registrar exercising the authority of the Court). Many matters at the Magistrates Court are resolved by negotiations at the pre trial conference on the first Court date.

A party who misses a Court date and has orders made in their absence should seek advice urgently, as they may be able to set aside or appeal the decision.

The Magistrates Court (Minor Cases Procedure) Rules 2005 set out the powers of the Registrar at a pre trial conference. Below is an extract of the rules:

24. What happens at a pre-trial conference

(1) The purpose of a pre-trial conference is to give you and the other parties an opportunity to settle the case.

(2) The primary role of the registrar at a pre-trial conference is to attempt to bring you and the other parties to a settlement that is acceptable to all of you.

(3) Specifically, the registrar may do any or all of the following --

(a) determine what facts, if any, are agreed by the parties;
(b) order the parties to --

[(i) deleted]

(ii) lodge and serve lists of documents the parties might tender in evidence at the trial in support of their claims or defences; and

(iii) exchange any other documents or information;
© extend the time for making counterclaims or third party claims (even if the time for making those claims has passed);
(d) recommend to the Court that it order you and the other parties to attend before a mediator;
(e) list the case for a further pre-trial conference;
(f) make any other orders necessary to facilitate settlement or ensure the case is ready for trial.
(4) The registrar must notify you and the other parties in writing of any further pre-trial conference.
(5) The Court may consider a recommendation from the registrar under subrule (3)(c) in the absence of the parties.

The registrar may adjourn the hearing or determination at any time, and seek directions from a magistrate, or refer the matter for hearing or determination by a magistrate.(1)

A person dissatisfied with a decision of a registrar may have the option of appealing to a magistrate.(2) See discussion at 4.6.2 (Appealing/ setting aside termination and possession orders).

5.2 Procedure

5.2.1 Application forms

Any application under the Residential Tenancies Act must '(a) be made in writing in a form approved by the Minister; and (b) be accompanied by the prescribed fee (if any).'(3)

The full name and address of the lessor must be listed on the application form. If the premises are managed by a real estate agent, the address of the real estate agency can be stated, but the name of the lessor must still be listed as the respondent.

The following forms are used to commence or dispute a residential tenancy application and can be found on the Magistrates Court website:

Application for Disposal of Bond Money (Form 6): is used for bond dispute where the amount in dispute is not more than the amount held in the bond account, and the bond has not been paid out. When a party lodges a Form 6 application, the Court will send a copy to the other party. If the other party disputes the application, they must return a Form 5 (Notice of Intention to Dispute Application for Disposal of Bond Money) within 7 days of service of the notice. This Form 5 is attached to the Form 6. If the other party does not return the Form 5 within 7 days, then the Court can make an order to dispose of the bond as per the Form 6.

Application for Court Order (Form 12): is used for disputes other than the bond (such as rent arrears, damage to premises and termination), disputes involving a claim for the bond in addition to another claim (such as for compensation for repairs), or a dispute where the amount being sought is greater than the bond.

Application to Vary or Set Aside Order (Form 16): is used to vary or set aside an order that was made in the absence of one of the parties. For further discussion, including additional forms that must be lodged, see 4.6.2 (Appealing/ setting aside termination and possession orders).

The following forms are used to commence or dispute a minor case application, and can be found on the Magistrates Court website under the relevant heading in 'Civil Matters':

Minor Case Claim (Form 4) - under Magistrates Court (Civil Proceedings) Rules 2005 Forms: is used to commence proceedings where a claim does not exceed $10 000 but does not fall under the Residential Tenancies Act (eg boarder/lodger arrangements). Note that a boarder/lodger agreement may be classed as a consumer/trader claim (see discussion below), in which case the claimant will need to lodge a Consumer/Trader Claim Minor Case (Form 6) - under Magistrates Court (Civil Proceedings) Rules 2005 Forms.

Appeal against a Registrar's Decision (Form 18) - under Magistrates Court (General) Rules 2005 Forms: is used to appeal the decision of a Registrar. If the original order was for termination and vacant possession, the applicant also needs to lodge a suspension application and an affidavit (see below).

Application for a Suspension Order (Form 9) - under Civil Judgments Enforcement Act Forms: is used to suspend the enforcement of an order. This is most likely to be used in a residential tenancy matter where a tenant misses their court hearing and there has been a termination and vacant possession order made. It must be lodged with an affidavit.

General Form of Affidavit (Form 2) - under Magistrates Court (Civil Proceedings) Rules 2005 Forms: must be lodged with an Application for a Suspension Order (Form 9) - see above.

5.2.2 Where to lodge the application

A residential tenancy application must be made to the Magistrates Court nearest to the premises the subject of the proceedings.(4) The distance is assessed 'by the most direct route using roads open to the public.'(5)

Note that the application can be made online on the Magistrates Court website, but it will still be heard at the court closest to the rental premises.

However, the Court has discretion to order that the whole or a part of the proceedings be conducted at another place in the State if 'satisfied that it would be more convenient, or fair, to the parties'.(6)

The party wanting to have the proceedings heard in an alternative location will need to make an application to the court. In some cases, the court may suggest that the parties appear via audio link rather than changing the location of the proceedings.

Applications can be lodged in person at the Court Registry or by pre-paid post.(7) Residential tenancy applications (form 6 and 12) and some minor case forms (Form 4) can be lodged electronically on the Magistrates Court website or by fax.(8)

5.2.3 Service

Residential tenancy applications

Once a residential tenancy application (Form 6 or 12) has been lodged, the Court will serve the documents on the other party and set a court date. The Court must notify both the applicant and respondent in writing of the time and place of the hearing.(9) The applicant doesn't need to arrange service on the respondent.

Please note, the Court notification is only for the originating applications, later forms may need to be served on the other party, and applications under the Civil Judgements Enforcement Act (like a suspension application) will need to be served.

Other Minor case claims

In the case of a minor case claim which is not a residential tenancy dispute (e.g. in the case of a boarder/lodger agreement), the requirements for service will depend on whether the matter is a consumer/trader claim or any other minor case claim.

If a consumer/trader claim, the court will give a copy of the claim to the defendant once it is lodged by the claimant.(10) Therefore, no service is required. If the claim is any claim other than a consumer/trader claim, personal service is required.(11) The requirements for personal service are set out in Part 11, Division 3 of the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA).

It is unclear whether a boarder/lodger dispute is classed as a consumer/trader claim (and therefore service is not required) or any other minor case claim (where service is required). At present, there is no case law interpreting this particular point in the WA Magistrates Court legislation. Regulation 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) sets out definitions for both 'consumer' and 'trader'.

The definition of 'consumer' specifically excludes tenants within the meaning of s 3 of the Residential Tenancies Act, but includes 'a natural person who buys or hires goods…or for whom services are supplied for fee or reward'. 'Goods' is defined widely to include 'everything that is the subject of trade or manufacture or merchandise'. Arguably, this is wide enough to include a boarder/lodger 'hiring' residential premises.

The definition of 'trader' specifically excludes a lessor within the meaning of s 3 of the Residential Tenancies Act, but 'means a person who in the field of trade or commerce carries on a business of supplying goods or providing services or who regularly holds himself out as ready to supply goods or to provide services of a similar nature'. Arguably, the definition of 'trader' is wide enough to include a provider of boarding/lodging accommodation.

In summary, the definition of a consumer/trader claim in r 7 as a claim 'that arises out of a contract between a consumer and a trader for the supply of goods or the provision of services' is wide enough to cover a boarder/lodger agreement. This would mean that service of the consumer/trader claim is not required.

5.2.4 Time for determination of proceedings

The first Court dates is usually about 2-3 weeks after the application is lodged with the court. The Residential Tenancies Act requires that proceedings 'be heard and determined wherever practicable within 14 days after they are instituted and, where that is not practicable, as expeditiously as possible.'(12) In practice, the strain on court resources means that applications may take months to be finally determined.

5.2.5 Pre-trial conference

Residential tenancy matters are usually listed for a pre-trial conference before a registrar in the first instance. If the matter is listed before a magistrate, the magistrate can still refer it to a pre-trial conference before proceeding to trial.

Most matters going to Court are given the same listing time, eg 9:30 or 10:15 and the parties are required to wait until their matter is called. This can mean that parties wait for several hours or most of the day for their matter to be called on. However, it is important to let the Court know if you are running late, as your matter might be called on in your absence.

If the hearing is set for a date or time that the party cannot attend, this party will need to contact the court as soon as possible before the hearing and ask for the matter to be adjourned to a later date. It is advisable to do this by writing a letter or email to the court and asking for this to be placed on file (if it is urgent, it is important to also call the court and advise them as a letter or email may not be received prior to the hearing). The court will generally require a good reason why a party cannot attend court (eg if the person is extremely ill in hospital). The court also has facilities to arrange an audio link (this is an option if a party has moved interstate or overseas or is working away).

The pre-trial conference is conducted on a without prejudice basis. This means that anything said or done in the conciliation, or any offers made, cannot be given in evidence in a later trial, however the judicial officer presiding over the conciliation is not disqualified from hearing or continuing to hear the proceedings if they think fit to do so.(13)

Rule 24(1) states that the purpose of a pre-trial conference is to give the parties an opportunity to settle the case. The primary role of a registrar at a pre-trial conference is to facilitate negotiations between the parties to see if they can reach an agreement rather than proceeding to trial.(14) The registrar generally talks to both parties together, but may also talk to each party individually to see what they are willing to agree to.

If the parties reach an agreement to settle proceedings, the registrar or magistrate may draft consent orders which embody the terms of the settlement.(15) Consent orders made under s 23 (3) are valid despite any inconsistency with Part IV or Part V of the Residential Tenancies Act.(16) However, the Act does not provide that those Parts are irrelevant. What is 'fair' under s 23(2) must be considered in light of the Act as a whole and, specifically, what outcomes might be available to a party if conciliation is unsuccessful and the matter proceeds to a hearing. Both parties must consent in writing to the proposed orders before the court will grant these orders. If one party does not comply with a consent order, the other party may apply to the Magistrates Court to enforce the order (for further discussion of enforcement, see 5.1.2. enforcement of judgments).

If no agreement is reached, the matter will either be adjourned for a further pre-trial conference or set down for trial before a magistrate.(17) An example of where a matter may be adjourned for a further pre-trial conference is where a tenant offers a payment plan to pay off the rent arrears and the lessor is willing to come back after a period of time to see if the tenant has made a significant contribution to the arrears. Another example of where an adjournment may be agreed is where the tenant is given a period of time to rectify damage to the premises.

If the matter isn't resolved at the pre trial conference and it is set down for hearing before a Magistrate, the hearing may be on the same day or a later date, depending on the court's capacity. Generally complex matters are not listed before a Magistrate on the same day, as the parties need time to prepare. Straightforward matters may proceed directly before a Magistrate, however most matters will be listed for final hearing on a later date, sometimes a few weeks away and sometimes months away.

It is important to attend any court hearing because the court can make orders in a party's absence.(18) If the party lodging the application does not attend the hearing, the court may dismiss the application. Alternatively, the court may adjourn the matter to a later date when all parties can be present.

5.2.6 Trial

If there is no agreement between the parties at the pre-trial conference, the matter will be listed for a trial before a magistrate.

The parties can continue to negotiate up to the hearing.

The magistrate will make a decision based the evidence before them, the residential tenancies agreement, and the law. The Magistrate may hand down the decision at the end of the hearing, and provide orders, or the Magistrate may reserve their decision, and hand it down on another date.

The Court will be send a written copy of the order to each of the parties after the hearing.

A court order made by a magistrate in a residential tenancy matter where both parties are present is final and binding.(19) No appeal can be made against this order, and judicial review is only permitted in the Supreme Court where there has been a denial of natural justice or where the Magistrates Court had no jurisdiction to make the order.(20) "No jurisdiction to make the order" has a technical legal meaning, which is a 'jurisdictional error' in administrative law.

The procedure for conducting a minor case trial is set out in Part 8 of the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA). This Part states that the trial 'must be conducted in accordance with orders given by the Court', and that the parties must attend the trial in person.(21). This Part also sets out the process for calling witnesses, compliance with witness summons and return of things tendered to the court after trial.(22)

5.2.7 Disclosure orders in Residential Tenancies matters

Terminology

Disclosure
Revealing all relevant information.

Discovery
A process by which the parties involved in a legal proceeding must inform each other of documents they have in their possession and which relate to the matters in dispute between the parties.

Pleadings
Pleadings include formal written statements of an applicant's claim and a respondent's defence. All of the material facts the parties intend to allege at the trial and the issues in dispute are defined in the pleadings. The pleadings show what facts are in dispute and what issues the Court will need to determine.

Statement of claim in Residential Tenancy Matters

Statement of minor case claim - Form 20 in the Civil Forms

Statement of defence in Residential Tenancy Matters

Statement of defence to minor case claim - Form 22 in the Civil Forms

Witness statements in Residential Tenancy Matters

Statement of Intended Evidence of a Witness - Form 32A

List of witnesses

A list of witnesses is sometimes used in cases where witness statements haven't been written.

"Documents to be relied upon"

This phrase refers to all of the documentation that a party will use in the case.
See Rule 25C of the Magistrates Court (Minor Cases Procedure) Rules 2005 which provides for parties to provide "list of documents", and the rules about those lists.

Disclosure orders are helpful to assist with:
  • Understanding the case
  • Narrowing the issues
  • Assessing the merits of the case
  • Increased chance of settlement by negotiation
  • Reduces use of court time
Disclosure is a routine part of civil litigation. It is part of "the rules of natural justice". Disclosure means that parties to a dispute understand the case against them, so each party can prepare and present their case, and the Court can decide the outcome on a fair basis.

If one party doesn't know the case against them until they hear it for the first time in Court, then they won't have a chance to prepare their response, and might not have brought relevant evidence to Court.

Even though the minor cases stream is designed to be a low cost forum to resolve disputes relating to less than $10,000, and the proceedings are meant to be informal, the Magistrates Court (Minor Cases Procedure) Rules 2005 still provides for disclosure to take place.

See Magistrates Court (minor cases) Rules, r24

(3) Specifically, the registrar may do any or all of the following --

(b) order the parties to --

(i) lodge and serve statements of claim and defence; and

(ii) lodge and serve lists of documents the parties might tender in evidence at the trial in support of their claims or defences; and

(iii) exchange any other documents or information;

Some Registrars say they will only make these orders by consent, so it is worthwhile speaking to the other party's representative and trying to agree what disclosure should be provided and what timeframe.

If you can't reach agreement, you can make submission that the Registrar has power under R24 to make the orders, or request that the matter is put before a Magistrate to make the appropriate disclosure orders.

If the matter is already set for hearing, and there is no disclosure, and the other party won't agree to provide disclosure voluntarily, you can make an application to the Court for disclosure orders.

The most important factors to include in disclosure orders is:

What you want disclosed

A clear timeframe.

Example Disclosure Orders

Applicant to lodge and serve Statement of Claim on or before [date]

Respondent to lodge and serve Statement of Defence on or before [date] (usually 1-2 weeks after the statement of claim)

Parties to lodge and serve witness statements, and copies of documents to be relied upon at trial, Applicant to lodge and serve on or before [date], and respondent to lodge and serve on or before [date, usually one to two weeks later, and still a couple of weeks before trial].

Variations

Applicant to lodge and serve list of witnesses and copies of documents to be relied upon, on or before [date].

Parties to lodge an Agreed Statement of Facts at [date].

When are disclosure orders needed?

Disclosure orders are not needed in all cases that are going to trial. If the respondent is fully aware of the case (eg it is an arrears case and the lessor has already provided the rental ledger, or the lessor has already provided all of the photos to support the property condition report) then there may be no need for disclosure orders.

5.2.8 Conduct of the trial and presentation of evidence

Both the tenant and lessor will be given an opportunity to present their cases.

Oral evidence is typically given on the stand, under oath or affirmation. The parties and their witnesses are required to tell the truth and it is an offence to mislead the court.

The person who has lodged the application (the applicant) presents their case first. The applicant provides their oral evidence, any documents in support of their case and calls their witnesses. The respondent with be given the opportunity to cross-examine (question) the applicant and their witnesses.

The respondent then has the opportunity to provide their evidence in response to the applicant's case, provide their documents and call their witnesses. The applicant has the opportunity to cross-examine (question) the respondent and their witnesses.

The magistrate can also question parties and their witnesses on their evidence or clarify any points if necessary.

Minor case proceedings are to be conducted with as little formality as the court thinks reasonable.(23) Further, minor case proceedings must be held in private unless the court orders otherwise.(24) Relatives and friends of a party may attend unless the court orders otherwise.(25)

The court is not bound by the rules of evidence in residential tenancy proceedings, 'but may inform itself upon any matter relating to the proceedings in such manner as it thinks fit.'(26) The same principle applies to minor case proceedings more generally, as set out in s 29(4) of the Magistrates Court (Civil Proceedings) Act 2004 (WA).

5.2.8.1 Witnesses and inspection of documents

Parties to residential tenancy proceedings can choose to call witnesses. The purpose of a witness is to provide evidence relevant to the proceedings.

If a party intends to call witnesses it is important to check whether they can attend on the date and provide them with the date, time and location of the hearing. It is a good idea to meet with witnesses before the first hearing to confirm why they are being called and what questions will be asked. Witnesses are not allowed to sit in on the hearing and will need to wait outside the court room until they are called.

Witnesses can be summonsed to attend court.(27) It is usually possible to obtain an adjournment if a summonsed witness that is crucial to the dispute does not attend (on the other hand, the court is unlikely to grant an adjournment if a witness who has not been summonsed failed to turn up).

The court can require the witness to answer any relevant question put to them by the court or any person appearing before the court - This provision also applies to persons who are present in court without a summons (such as witnesses who turn up without a summons).(28) The court can also require any person appearing before it to make an oath or affirmation that they will answer any relevant questions truly.(29) A person who fails to comply with these requirements commit an offence subject to a fine of $10 000.(30)

Parties wishing to present documentary evidence to the Court may summons the production of any books, papers or documents for inspection and to make copies. The court may retain the document for such reasonable period as it thinks fit.(31) The court also has the power to summons both attendance of witnesses and production of documents.(32)

A person who fails to comply with a summons without reasonable excuse commits an offence subject to a fine of $10 000.(33)

Many people are not comfortable giving evidence, and some tenancy matters cover long periods of time with details of payments and history of communication. In any of these cases it may be better to present the evidence in chief of a witness in a written witness statement or sworn affidavit. The witness will usually still need to come to Court to adopt their statement on the stand, provide any additional evidence, and be available for cross examination by the other party.

The process for summoning a witness in minor case proceedings is set out in r 39 of the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA). A party who wants to call a witness can lodge a Form 46 (Request for a Witness Summons) at the court registry where the trial is to be held. A draft witness summons must also be lodged with the application - In residential tenancy proceedings, this is a Form 13 (Summons to give Evidence and to Produce Documents). If the court approves the request, the applicant must personally serve the witness summons on the witness at least 14 days before the trial date, and provide proof of this on a copy of the witness summons. At the time the witness summons is served (or at a reasonable time before the attendance date), the applicant must give the witness conduct money (an amount that is likely to be sufficient to meet the reasonable expenses of attending court), arrange to enable the witness to attend court or provide means to enable the witness to attend court.

5.2.9 Reservation of question of law

A magistrate is entitled to reserve any question of law for the decision of the Supreme Court.(34) This power can only be exercised by a magistrate, and not a registrar.(35)

The costs of the conduct of matters referred to the Supreme Court are funded from the Consolidated Account.(36)

5.3 Representation

In residential tenancy proceedings

In residential tenancy matters, parties usually present their own case, or are represented by agents who aren't lawyers, and parties are generally not entitled to legal representation.(37) Parties can be represented by lawyers in limited circumstance, see below for details.

A party is still entitled to be assisted by an interpreter, so long as the interpreter's fee does not exceed an amount fixed by the court at the hearing.(38)

A tenant may be represented or assisted by an agent, if the agent is employed or engaged by a non-profit association or similar body to act as an advocate for tenants in proceedings (e.g. a tenant advocate working in a community legal centre or other community agency).(39)

A lessor may be represented by their property manager.(40) A lessor may also be represented by an employee of (or a person acting on behalf of) the property manager as long as this person is registered as a sales representative under the Real Estate and Business Agents Act 1978 (WA).(41)

If the lessor is a body corporate, it can be represented by an officer or employee of the body corporate, so long as this person is not legally qualified and is authorised to conduct proceedings on behalf of the body corporate (whether or not a fee is paid for such representation).(42)

A party being represented by an agent must lodge a written authorisation together with the court application.(43) The authorisation must be in a Form 24 (Authorisation for an Agent to Present a Party's Case).

An 'agent' means a person who is not a legally qualified person.(44) A 'legally qualified person' means an Australian lawyer as defined in section 3 of the Legal Profession Act 2008 or a person who holds or has held legal qualifications under WA legislation or laws of 'any other place.'(45) A legally qualified person cannot ordinarily represent a tenant or lessor, while an agent can. An 'Australian lawyer' is defined in the Legal Profession Act 2008 (WA) as 'a person who is admitted to the legal profession under this Act or a corresponding law'.(46) This means that a person who has been admitted as a lawyer cannot generally represent a party to residential tenancy proceedings. A person who holds (or has held) a law degree in WA 'or any other place' is also generally prevented from representing a party to residential tenancy proceedings.

A legal practitioner may only represent a party in certain circumstances. A 'legal practitioner' means an Australian legal practitioner as defined in section 3 of the Legal Profession Act 2008 (WA). An 'Australian legal practitioner' is defined as an Australian lawyer holding a current local or interstate practising certificate.(47) A person who has been admitted as a lawyer but does not yet hold a practising certificate is not considered to be an 'Australian lawyer' and consequently cannot represent a party to residential tenancy proceedings.

Under the Residential Tenancies Act, parties can only be represented by legal practitioners if any of the following apply:

  • All the parties agree and the court hearing the proceedings is satisfied that any party who is not represented will not be unfairly disadvantaged;
  • one of the parties is a legally qualified person;
  • one of the parties is a body corporate and any other party elects to be represented;
  • the court is satisfied that one of the parties is unable to conduct the proceedings without representation by a legal practitioner (Australian lawyer who holds a current practising certificate); or
  • the proceedings are instituted or defended, or the conduct thereof has been assumed, by the Commissioner.(48)

A legal practitioner can represent a tenant against a body corporate (eg Housing Authority or Community Housing) but cannot usually represent in private tenancy disputes unless of the above applies.

A tenant has the right to dispute the lessor being represented by a legal practitioner if none of the above apply, and vice versa.

Any person representing or assisting a party must not demand or receive any fee or reward for doing so, unless they are a legal practitioner, an officer or employee of a body corporate lessor, or a property manager of the premises.(49) Contravention of this requirement is an offence subject to a fine of $5 000.

In other minor case proceedings

Like residential tenancy proceedings, parties in other minor case proceedings are usually self-represented.(50)

Section 30 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) sets out the circumstances in which a party may be represented. The section differentiates between when a party can be represented by a legal practitioner and a person who is not a legal practitioner. It is important to note that reference to 'agent' under this section means 'a legal practitioner or any other person.'(51) This differs from the corresponding section (s 22) of the Residential Tenancies Act where 'agent' excludes a legally qualified person and a legal practitioner.

5.3.1 Costs

The minor case jurisdiction is generally a no-costs jurisdiction, other than the application fees. This means that each party will usually bear their own costs in preparing the case.

The Residential Tenancies Act provides court may only award costs in a residential tenancy dispute where:

  • all parties to the proceedings were represented by legal practitioners (a defined in s 22(6) of the Residential Tenancies Act); or
  • the court is of the opinion that there are special circumstances justifying the award of costs.(52)

However, the court can make an order for payment of the application fee to the successful party.(53)

However the Magistrates Court (Civil Proceedings Act) provides a different test for costs in minor cases at s31:

31. Costs
(1) In this section -- allowable costs means --
(a) the court fees and service fees paid by a successful party; and
(b) the costs of enforcing a judgment.
(2) A successful party to a minor case is entitled to an order under section 25(1) in relation to the party's allowable costs but not in relation to the party's other costs in the case.
(3) Despite subsection (2), the Court may make an order under section 25(1) as to the payment of the party's other costs by another party if it is satisfied that --
(a) because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or
(b) the unsuccessful party's claim or defence was wholly without merit; or
© the proceedings in the minor case --
(i) were commenced but not concluded in a Local Court before 1 May 2005; and
(ii) were, immediately before 1 May 2005, not proceedings that were being heard and determined under the Local Courts Act 1904 Part VIA 3.

The overlap and resulting inconsistency has not been resolved in reported decisions to our knowledge.

In a claim exceeding $10 000 (general procedure claim), the successful party is ordinarily entitled to costs (eg lawyer's fees if the successful party is legally represented).(54) For claims above $10 000, see further discussion below at 5.1.1.2 (Disputes involving more than $10 000).

If the amount of the claim exceeds $10 000, but the court orders that the plaintiff recover less than $10 000, the plaintiff is not entitled to costs 'unless the court is satisfied that at the time of making the application there were reasonable grounds for the plaintiff to believe that the plaintiff had a claim for an amount over the prescribed amount.'(55)

5.3.1.1 Application fees

As at 5 June 2018, the application fees are as follows:(56)

  • $68.45 to lodge a Form 6 or Form 12 application (including a $0.20 Suitor's Fund fee).
  • $19.90 to lodge a Form 6 or Form 12 application (including a $0.20 Suitor's Fund fee) for a financially disadvantaged person (see discussion below).
  • $18.20 to lodge a Form 5 disputing a disposal of the bond application.
  • $39.90 for an individual or eligible entity to lodge a Form 1B appeal against a Registrar's decision; $12 for an eligible individual; and $103 for an entity.
  • $120.20 to lodge a minor case application (including 0.20 Suitor's Fund fee) for an individual or eligible entity; $36.10 (including 0.20 Suitor's Fund fee) for an eligible individual; and $233.20 (including 0.20 Suitor's Fund fee) for an entity.(57)

Fee reduction or refund

A 'financially disadvantaged person' entitled to a reduced filing fee is defined in the Residential Tenancies Regulations, in Schedule 3 1(b):

(b) In sub-item (a)(i) financially disadvantaged person means --

(i) a person who produces, or in respect of whom there is produced, to a registrar of the court evidence to the satisfaction of the registrar showing that the person holds a Health Care Card, a Health Benefit Card, or a Pensioner Health Benefit Card issued by the Department of Social Security or the Department of Veteran's Affairs of the Government of the Commonwealth; or

(ii) a person who satisfies the registrar that he is, by reason of his financial circumstances, unable to pay the prescribed fee.

Different rules apply for fee reduction for applications that are not under the Residential Tenancies Act (for example, for suspension applications under the Civil Judgement Enforcement Act or for boarder and lodger applications).

5.4 Performance orders (and restraining orders)

Either party to a residential tenancy agreement can apply to the Magistrates Court for relief if a breach of agreement has occurred or a dispute has arisen under the agreement.(58) A party to an agreement for an option to enter into a residential tenancy agreement may also apply for relief if a breach of the agreement has occurred.(59)

The Magistrates Court can make a range of orders requiring an action in performance of the tenancy agreement, or restraining an action that is a breach of the tenancy agreement.(60) The Court may also make other orders such as the payment of compensation for loss of injury, or the payment of rent to the Court until the agreement has been performed.(61) Note that the Magistrates Court is limited to granting only that relief as set out in s 15(2)(a) to (e) - it is not possible to make an application seeking simply an order that a party to the agreement is in breach. The Full Bench of the WA Industrial Relations Commission held that 'A lessor cannot simply apply to the court asking the court to find that the tenant has breached the residential tenancy agreement. It is not within the powers of the Magistrates Court under s 15(2) of the Residential Tenancies Act to make declaratory orders that a residential tenancy agreement has been breached.'(62)

The court may make a specific performance order or restraining order, notwithstanding that an injunction or order for specific performance would not otherwise be available in such circumstances.(63)

Examples of specific performance orders are:

  • for the lessor to conduct maintenance or repairs;
  • for the tenant to enter into a payment plan to pay off rent arrears;
  • for the lessor to deliver up vacant possession of the premises by removing belongings left in the premises;
  • for the lessor to ensure the premises comply with security requirements;
  • for the tenant to remove a sub-tenant from the premises if the lessor has not given consent for a sub-tenant to live at the premises;
  • for the tenant to remove any fixtures that were affixed without the lessor's consent;
  • for the tenant to provide a forwarding address to the lessor when they leave the premises.
  • for the tenant to remove a pet kept at the premises in breach of the agreement
Examples of orders restraining actions in breach of the agreement are:
  • for the tenant not to cause or permit a nuisance;
  • for the lessor to refrain from breaching the tenant's quiet enjoyment;
  • for the tenant to stop using the premises for an illegal purpose; and
In assessing whether to grant a performance order or restraining order, the court must take into account any previous breaches by the lessor or tenant of the agreement.(64)

5.5 Disputes involving more than $10 000

If a claim under the Residential Tenancies Act is for an amount more than $10 000 but not exceeding $75 000, the costs and representation sections under the Residential Tenancies Act do not apply.(65) The claim will either be:

  • a minor case claim - if the lessor and tenant agree in writing as discussed in s 13(3) of the Residential Tenancies Act; or
  • a general procedure claim - if the parties do not agree in writing that the proceedings will be conducted as a minor case claim.(66)

General procedure claims are beyond the scope of this publication and further legal advice should be sought. For now, it is sufficient to note that under the general procedure jurisdiction:

  • Additional documents must be prepared, including a statement of claim and statement of defence.
  • The additional documents must be served personally, or by a bailiff on behalf of the claimant.
  • Parties are entitled to legal representation.
  • Successful parties can usually recover costs from the unsuccessful party (eg lawyer's fees if the successful party is legally represented).(67)
  • The application fees are higher. Therefore, it is beneficial to try and reduce the claim to below $10 000 so the application can be made under the Residential Tenancies Act or as a minor case claim.

Claims exceeding $75 000 must be dealt with by the applicable higher court, in accordance with that court's practice and procedures, and the Residential Tenancies Act.(68)

5.6 Enforcement of judgments

Enforcement of judgements is addressed in the Legal Aid Magistrate's Court Civil Jurisdiction Manual, which is available to Legal Aid partners with logins. The resource addresses both how to enforce a judgement and how to respond if someone is seeking to enforce a judgement against you.

Notes

1 : RT Regulations r 7(4).

2 : Residential Tenancies Act s 13B.

3 : Residential Tenancies Act s 18(1).

4 : Residential Tenancies Act s 13A(3)

5 : RT Regulations r 9.

6 : Residential Tenancies Act s 13A(4); Magistrates Court (Civil Proceedings) Act 2004 (WA) s 22.

7 : Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) r 48.

8 : Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) r 49.

9 : Residential Tenancies Act s 18(2).

10 : Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) r 12.

11 : Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) rr 6, 7. Note that a claimant can ask an enforcement officer, an administrative staff member or a departmental officer to serve the document for them: Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) r 52.

12 : Residential Tenancies Act s 14.

13 : Residential Tenancies Act s 23(2).

14 : Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) r 24(2).

15 : Residential Tenancies Act s 23(3); Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) r 34.

16 : Residential Tenancies Act s 23(4). Parts IV and V contain sections 27A to 81 of the Residential Tenancies Act, including all the standard terms applied to RT Agreements and the ways in which RT Agreements may be terminated. See Explanatory memorandum - Residential Tenancies Amendment Bill 2011 clause 20, for an explanation of the purpose of this potentially very wide-ranging provision.

17 : Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) r 27.

18 : Residential Tenancies Act s 20©; Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) r 26.

19 : Residential Tenancies Act s 26(1).

20 : Residential Tenancies Act ss 26(1),(2) - for further discussion see4.6.2 (appealing/setting aside termination and possession orders).

21 : Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) rr 37, 38.

22 : Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) rr 39-40.

23 : Magistrates Court (Civil Proceedings) Act 2004 (WA) s 29(3).

24 : Magistrates Court (Civil Proceedings) Act 2004 (WA) s 29(1).

25 : Magistrates Court (Civil Proceedings) Act 2004 (WA) s 29(2).

26 : Residential Tenancies Act s 21.

27 : Residential Tenancies Act s 19(1)(a)(i).

28 : Residential Tenancies Act ss 19(1)(b)(iii).

29 : Residential Tenancies Act s 19(1)(b)(ii).

30 : Residential Tenancies Act s 19(2)(b).

31 : Residential Tenancies Act ss 19(1)(a)(ii), (b)(i).

32 : Residential Tenancies Act s 19(1)(a)(iii).

33 : Residential Tenancies Act s 19(2)(a).

34 : Residential Tenancies Act s 25(1).

35 : RT Regulations r 7(3)(a).

36 : Residential Tenancies Act s 25(2).

37 : Residential Tenancies Act s 22(1).

38 : Residential Tenancies Act s 22(4)(b).

39 : Residential Tenancies Act s 22(2)(b).

40 : Residential Tenancies Act s 22(2)(a). Section 22(2)(b) also gives the lessor the option of being represented by an agent employed or engaged by a non-profit association or similar body to act as an advocate for lessors, however, no such service exists.

41 : RT Regulations r 5AA.

42 : Residential Tenancies Act s 22(4)(a).

43 : Residential Tenancies Act s 22(3A).

44 : Residential Tenancies Act s 22(6).

45 : Residential Tenancies Act s 22(6).

46 : Legal Profession Act 2008 (WA) ss 3, 4(a).

47 : Legal Profession Act 2008 (WA) ss 3, 5(a).

48 : Residential Tenancies Act s 22(3).

49 : Residential Tenancies Act s 22(5).

50 : Magistrates Court (Civil Proceedings) Act 2004 (WA) s 30(2).

51 : Magistrates Court (Civil Proceedings) Act 2004 (WA) s 30(1).

52 : Residential Tenancies Act s 24(1).

53 : Residential Tenancies Act s 24(2).

54 : Magistrates Court (Civil Proceedings) Act 2004 (WA) s 25.

55 : Residential Tenancies Act s 13(5).

56 : Magistrates Court of Western Australia, Court Fees, 10 February 2018, 4.

57 : Note that a minor case application is for any other dispute up to $10 000 not covered by the Residential Tenancies Act, and it may also include a service fee if the claim is served by a bailiff: see Magistrates Court of Western Australia, Court Fees, 10 February 2018, 4.

58 : Residential Tenancies Act s 15(1). See also The Civil Service Association of Western Australia Incorporated v Director General, Department of Housing [2014] WAIRComm 76 (4 February 2014) [25], [51] which confirms that either party to a tenancy agreement can make an application under s 15.

59 : Residential Tenancies Act s 15(1).

60 : Residential Tenancies Act s 15(2)(a).

61 : Residential Tenancies Act ss 15(2)(b) - (e). See further discussion below at 5.1.1.1.6 (Compensation orders) and 5.1.1.1.7 (Other orders).

62 : The Civil Service Association of Western Australia Incorporated v Director General, Department of Housing [2014] WAIRComm 76 (4 February 2014) [51(f)].

63 : Residential Tenancies Act s 15(3).

64 : Residential Tenancies Act s 15(4).

65 : Residential Tenancies Act s 13(4).

66 : Residential Tenancies Act ss 13(1), (2).

67 : Magistrates Court (Civil Proceedings) Act 2004 (WA) s 25.

68 : Residential Tenancies Act ss 13(1), (4).


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