COMUCE -v- SCOTT [2026] WADC 39

[2026] WADC 39 [2026] WADC 39 [JM] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : COMUCE -v- SCOTT [2026] WADC 39 CORAM : STAUDE DCJ HEARD : 7 MAY 2026 DELIVERED : Ex tempore PUBLISHED : 13 MAY 2026 FILE NO/S : APP 39 of 2026 BETWEEN : DANIEL COMUCE Appellant AND PHILIP SCOTT ELLY SCOTT Respondents Catchwords: Practice and procedure - Refusal by registrar to accept notice of appeal from a decision of a magistrate on an application under the Residential Tenancies Act 1987 (WA) - Where no appeal lies from decision - Application to judge pursuant to Rules of the Supreme Court 1971 (WA) O 67 r 5(3) - Whether notice of appeal is an abuse of process -- 1 of 7 -- [2026] WADC 39 [2026] WADC 39 [JM] Page 2 Legislation: District Court of Western Australia Act 1969 (WA), s 52 District Court Rules 2005 (WA), r 15 Magistrates Court (Civil Proceedings) Act 2004 (WA) Residential Tenancies Act 1987 (WA), s 26 Rules of the Supreme Court 1971 (WA), O 67 r 5 Result: Application dismissed Representation: Counsel: Appellant : No appearance Respondents : No appearance Solicitors: Appellant : Not applicable Respondents : Not applicable Case(s) referred to in decision(s): Re Rules of The Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 -- 2 of 7 -- [2026] WADC 39 STAUDE DCJ [2026] WADC 39 [JM] Page 3 STAUDE DCJ: [This decision was delivered extemporaneously on 7 May 2026 and edited from the transcript.] 1 On 19 March 2026, Mr Comuce sought to lodge an appeal from a decision made in the Fremantle Magistrates Court on 26 February 2026 in FRE/RSTN/82/2025. The notice of appeal, however, describes the decision appealed from as follows: 1. In FRE/RSTN/774/2025, the Magistrate ordered that the respondent tenant pay the applicant lessors: - $10,800 in rent arrears up to 15 May 2025; - $210 for changing locks; - $26.09 for water consumption; - $84 for the cost of the application; Total: $11,120.09. 2. The Magistrate ordered that the $1,200 security bond be dispersed as follows: - $600 to Philip James Scott; - $600 to Elly Joyce Scott; - $0 to the respondent tenant. 3. The Magistrate ordered that the respondent tenant pay the bond balance after bond deduction, namely $9,920.09. 4. In FRE/RSTN/703/2025, the Magistrate dismissed the tenant's application and stated: 'Bond dealt with in FRE/RSTN/774/2025'. 2 The notice of appeal pleads 16 grounds of appeal. The grounds principally plead procedural errors which are said to invalidate the decision. They also allege a breach of natural justice in the conduct of the proceedings. 3 With the notice of appeal, Mr Comuce sought to lodge an affidavit setting out the history of the Magistrates Court litigation and otherwise addressing the grounds of appeal by way of submission. Mr Comuce also sought to file a number of evidential documents relating to the Magistrates Court litigation. 4 In his affidavit, Mr Comuce submits that he has a right of appeal pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA), and that there is a jurisdictional conflict between that Act and the Residential Tenancies Act 1987 (WA) (RTA). -- 3 of 7 -- [2026] WADC 39 STAUDE DCJ [2026] WADC 39 [JM] Page 4 5 It is clearly apparent from these documents that Mr Comuce is seeking to appeal from a decision of the Fremantle Magistrates Court with respect to applications that were made pursuant to the RTA. 6 By virtue of s 26(1) of the RTA, there is no appeal from such a decision. Section 26(1) provides that an order made by a court under the RTA is final and binding and that no appeal shall lie in respect thereof. Section 26(2) provides: No declaratory judgment should be given and no order shall be made under s 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. 7 Section 26(3) provides that s 26 applies despite pt 7 of the MCCPA, which deals generally with appeals from the Magistrates Court to this court with respect to civil matters. 8 The lodgement of the notice of appeal was rejected. The court registry informed Mr Comuce by email on 27 March 2026 that the notice of appeal had been referred to a registrar who had refused to accept the document for filing for the reason that no appeal lies to this court from a decision of a magistrate in an RTA application. 9 By email on 30 March 2026, Mr Comuce was informed that if he sought review of the Magistrates Court decision pursuant to s 26(2) of the RTA, he should make an application to the Supreme Court. 10 Registrar Kubacz wrote to Mr Comuce on 1 April 2026, citing s 26 of the RTA as the reason for the court not accepting the appeal. The learned registrar reproduced s 26 in its entirety in her letter. 11 After further email response from Mr Comuce, the matter was put before Principal Registrar McGivern, who wrote to him on 10 April 2026. 12 The principal registrar referred to Registrar Kubacz's letter confirming the reason for the rejection of the notice of appeal. The learned principal registrar pointed out that O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC), which is applicable to civil proceedings in the District Court by virtue of s 52 of the District Court -- 4 of 7 -- [2026] WADC 39 STAUDE DCJ [2026] WADC 39 [JM] Page 5 of Western Australia Act 1969 (WA), provides that any process that is presented for filing that appears to be an abuse of the process of the court or a frivolous or vexatious proceeding may be refused by a registrar without leave of a judge or master first had and obtained by the party seeking to file it. 13 I observe in this regard that a proceeding is an abuse of process if it is doomed to fail or is plainly unsustainable. It may also be considered frivolous or vexatious for the same reason. An action is frivolous when it is not worthy of serious consideration, is unsupportable in law, discloses no cause of action, or is groundless. An action is vexatious if it has no reasonable prospects of success: see Re Rules of The Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [26] - [32] (Vaughan J, (as his Honour then was)). 14 Order 67 r 5 of the RSC provides that an application for leave to file such a process can be made to a judge in chambers supported by affidavit. 15 In her letter to Mr Comuce, the learned principal registrar stated: In this case, the notice of appeal is, in my view, properly refused for filing without leave under RSC O 67 r 5 as an abuse of process, in the sense that by reason of s 26 of the Residential Tenancies Act no appeal lies to this court. If, notwithstanding the matters raised in the rejection letter, you intend to apply for leave to file a notice of appeal in this court under RSC O 67 r 5, you may do so by filing an originating motion, which must be supported by an affidavit. 16 The information provided to Mr Comuce was correct and appropriately given. 17 The principal registrar's letter has prompted Mr Comuce to lodge a further notice of appeal, being an appeal from the principal registrar's decision upholding the refusal to accept the appeal notice for filing. The document incorrectly names the principal registrar as the respondent. 18 The appropriate form of an application pursuant to O 67 r 5(3) is by originating motion supported by affidavit, as Mr Comuce was informed by the principal registrar in her letter. 19 The notice of appeal against the principal registrar's decision has been referred to me. Clearly, it is not and cannot be an appeal from a registrar's decision. -- 5 of 7 -- [2026] WADC 39 STAUDE DCJ [2026] WADC 39 [JM] Page 6 20 A registrar has the jurisdiction prescribed in r 8(1) of the District Court Rules 2005 (WA) (DCR), which provides that a legally qualified registrar may deal with any proceedings that a judge may deal with in chambers, other than certain specified proceedings. A decision by a registrar pursuant to O 67 r 5(1) of the RSC is not an appealable decision for the purposes of r 15 of the DCR, as it is not a decision made in any proceeding. A proceeding is not commenced until such time as the process is issued by the court. 21 Order 67 r 5 provides a means by which an application can be made to a judge where an originating process lodged for filing or issue is refused by a registrar. That application is to be made by originating motion, as stated previously. 22 From correspondence on the court file it appears that Mr Comuce has referred in an email on 1 May 2026, and elsewhere, to having lodged an application by originating summons pursuant to O 67 r 5. Be that as it may, the form of the application before me is a notice of appeal. 23 I have taken the view that it is in the interests of justice that the notice of appeal lodged by Mr Comuce with respect to the principal registrar's decision upholding the refusal of the notice of appeal in respect to the Magistrates Court decision be treated as an application under O 67 r 5. 24 At issue then is whether leave to file a notice of appeal from the Magistrates Court decision should be granted. 25 Mr Comuce has requested that my decision be made on the papers. This appears from his email of 2 May 2026, in which Mr Comuce with reference to his personal circumstances requested leave not to appear in person. He requested a determination on the papers, if the court considered it appropriate, otherwise permission to appear by telephone with a French interpreter. 26 In my view, it is appropriate to decide the issue on the papers, as it involves an ex parte application and turns upon a matter of law on which Mr Comuce has made submissions in writing. It involves no factual issues. 27 I find that the decision, the subject of the notice of appeal that Mr Comuce seeks leave to file, is a decision made under the RTA. By virtue of s 26(1) of the RTA, as I have observed, it is a decision -- 6 of 7 -- [2026] WADC 39 STAUDE DCJ [2026] WADC 39 [JM] Page 7 which is final and binding. No appeal lies from it. Section 26(3) clearly states that this section applies despite pt 7 of the MCCPA, so there is no uncertainty about this court's lack of jurisdiction. 28 To the extent that Mr Comuce asserts possible jurisdictional errors and a denial of natural justice, it is to the Supreme Court and only the Supreme Court that he may apply. That court has jurisdiction under s 26(2) of the RTA to deal with such a review. 29 For these reasons, the orders of the court will be as follows: (1) The notice of appeal herein dated 16 April 2026 be treated as an application by originating motion pursuant to O 67 r 5(3) of the RSC, nunc pro tunc. (2) The application be dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. DC Associate to Judge Staude 12 MAY 2026 -- 7 of 7 --