Re An Application Under the Magistrates Court Act 2004; [No 2] - [2007] WASC 255

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE SNOOK [No 2] [2007] WASC 255

CORAM: SIMMONDS J

HEARD: 28 SEPTEMBER 2007

DELIVERED : 1 NOVEMBER 2007

FILE NO/S: CIV 2362 of 2006

MATTER :An Application under the Magistrates Court Act 2004, s 36 for a Review Order against Mr G D Lawrence, Magistrate of the Magistrates Court of Western Australia at Joondalup

EX PARTE
PIPPA SNOOK
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Application for review order - Final hearing - Review of order for delivery up of vacant possession of residential premises - Whether option to renew lease validly exercised - Natural justice - Whether magistrate denied the appellant an adequate opportunity to consider and seek to meet the case against her - Material issue not sufficiently brought to parties' attention - Self-represented parties - Turns on own facts

Legislation:

Magistrates Court Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 26, s 32(4), s 71, s 72

Result:

Review order made final
Magistrate's decision on landlord's application quashed

Category: B

Representation:

Counsel:

Applicant: Mr A P Skerritt
Respondent: No appearance

Solicitors:

Applicant: Terrace Law
Respondent: No appearance

Case(s) referred to in judgment(s):

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Gudgeon v Black (1994) 14 WAR 158
Hoffman La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Jones v National Coal Board [1957] 2 QB 55
Nguyen Thanh Trong v Minister for Immigration Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463
Re An Application under the Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151
Re Minister for Resources; Ex Parte Cazaly Iron Pty Ltd [2007] WASCA 175
Santa Sobina College v Minister for Education (1985) 58 ALR 522
Snook v Lawrence [2007] WASC 111

SIMMONDS J:

Introduction

This is the return of the substituted form of application for review orders (the Snook application) in respect of an order of the Joondalup Magistrates Court. That order was made on 21 November 2006 and was for the delivery up by the applicant of vacant possession of residential premises in Hillarys (the order for delivery up of possession).
The present return of the Snook application follows orders I made under Rules of the Supreme Court O 56A r 3 for the hearing of the review order that I considered the Snook application sought. I set out the orders so made and the reasons for making them in Snook v Lawrence [2007] WASC 111. The orders so made included an order staying the order for delivery up of possession.
Subsequently to the making of those orders, the landlords applied for a setting aside of the stay order, but did not press that application, in the circumstances I will describe.
At the present hearing, following argument from counsel for the applicant, and from one of the landlords (whom I permitted to participate in the hearing), I made the review order final, and ordered that the decision of the learned magistrate on the landlords' application for an order for delivery up of possession should be set aside. I stated that in the circumstances no order as to costs should be made. I indicated I would publish reasons for those conclusions.
These are those reasons.
I begin this judgment by describing the background to the Snook application. I then describe the history of the proceedings, before turning to consider the merits of the Snook application. My disposition of that application makes it unnecessary to deal with the landlords' application.

The background to the Snook application

The following account is adapted from my judgment in Snook at [32] ‑ [43], which I have also updated.
The proceedings before the magistrate arose out of a lease provided for by a residential tenancy agreement between the applicant, as tenant, and Mr Dale Miller and Ms Nhi Do, as landlords (the Tenancy Agreement).
There were applications from both the tenant and the landlords before his Honour. Only the decision on the application from the landlords is the subject of an application for review orders before me.
The tenant had applied for relief in respect of breaches by the landlords of their obligations under the Residential Tenancies Act 1987 (WA) (RT Act). Those obligations were to provide the premises rented in a reasonable state.
The landlords had applied for immediate possession of the premises rented on the basis that the tenant had remained in the premises after the expiry of the term provided for in the Tenancy Agreement, and the tenant could not take advantage of the provisions in it for 'guaranteed renewal'.
Throughout the proceedings before the learned magistrate, and also for one of the hearings before me, the hearing that resulted in Snook, the applicant was self-represented. The landlords were self‑represented throughout the proceedings before the learned magistrate, and the landlord who appeared in the proceedings before me was self‑represented throughout those latter proceedings.
The matter in the Magistrates Court was heard, and evidence was taken, before his Honour on 11 July, 12 July, and 10 August 2006.
On 15 August 2006, his Honour, on the application of the tenant, adjourned the hearing of submissions to 31 October 2006. This was apparently in part at least on the basis of a letter from a medical practitioner which explained that the tenant was suffering from lethargy as result of her pregnancy, and the lethargy so caused dated back to June 2006.
The tenant was unable to attend the hearing on 31 October 2006. A letter from the medical practitioner referred to confirmed that the tenant's baby was overdue and she would be unlikely to have recovered medically such that she could attend the hearing. At the hearing with the consent of the landlords the hearing was adjourned to 21 November 2006.
At the hearing on 21 November 2006, which the tenant did not attend, the learned magistrate had written submissions from her. He also heard oral submissions from the landlords. At the conclusion of those submissions, the magistrate indicated he had considered the written submissions of the tenant, but required sufficient time to consider the submissions for the landlords.
Later the same day the learned magistrate gave his decision in which he found that the tenant had made out her case to the extent that it was appropriate to order a reduction in rent under RT Act s 32(4). As I have indicated, there was no application before me in respect of those orders.
He also found that the lease had expired on 18 June 2006 and that the option provided for in the lease had not been validly exercised. He so found as the instrument which he appears to have found the tenant had relied upon as the exercise of the option did not specify a period for the renewal. On his Honour's understanding of the law, the result was that an order for delivery up of possession should be made.
However, acting it seems on the basis of RT Act s 71, his Honour suspended the application of the order for delivery up of possession until 22 December 2006. He explained this as follows (21 November 2006, ts 24):
Under the Act, see section 71 subsection (3) to suspend the operation of an order for possession for a period not exceeding 30 days. I am entitled to suspend for up to that period having considered the relative hardship of the parties. I am not entitled to suspend the operation of an order for any longer than 30 days. The tenant is a single mother caring for three children, including a newborn.
By application dated 12 December 2006, the tenant applied at least once for an order suspending the order for delivery up of possession. The outcome of that application or any other such applications was not altogether clear to me. However, it seems that any suspension obtained by the tenant in any other court had expired by the time of the present hearing.

The present proceedings

The Snook application was commenced by notice of originating motion dated 18 December 2006 for an order nisi for a writ of certiorari in respect of the order for delivery up of possession.
For the reasons given in Snook I determined the Snook application should be treated as one for a review order under Magistrates Court Act 2004 (WA) (MC Act) s 36.
At the first hearing of the Snook application, on 20 March 2007, the applicant was self‑represented, and one of the landlords of the premises, Mr Miller, appeared. I heard from both. I made orders on that occasion, to the following effects:
•The application for review should be heard before a Judge of this Court sitting in Chambers.
•The application, together with affidavits comprising the affidavits of Ms Snook in support of her application of 9 December 2006 and 20 March 2007 and these orders, should be served upon the landlords of the premises, Mr Miller and Ms Nhi Do (the landlords), to be served by registered mail or equivalent Australia Post service at the address supplied at the hearing.
•The landlords should have liberty to apply to be joined as parties to these proceedings.
•Ms Snook should have liberty to uplift and copy away from the Court the papers in the Court file for the purpose of the service just described, such papers to be refiled with the Court by 4 pm Thursday 29 March 2007.
•The transcript of the proceedings before the learned Magistrate to the extent not annexed to the affidavits referred should be brought into court either at the initiative of Ms Snook or any other party to the proceedings, and that the Registrar of the Magistrates Court at Joondalup should remit to this Court the exhibits before the learned Magistrate.
•This review order should be adjourned for further consideration by a Judge in Chambers in this Court, at a date to be fixed approximately six weeks from today, but to be fixed only after the service referred to above has taken place. On that occasion the Court would give further procedural orders.
•Execution of the order for vacant possession should be stayed until further order, which may be made on application by any party, or in any event by the landlords, such application not to be made before Thursday, 5 April 2007, subject to the liberty to apply below.
•There should be liberty to apply generally.
Those orders were not, however, extracted, and thus no orders were served on the Magistrates Court Joondalup.
By application dated 30 April 2007 one of the landlords, Mr Miller, apparently on behalf of both landlords, applied to remove the stay. An affidavit of Mr Miller in support of the application, and an affidavit of the applicant in opposition to it, were filed.
On 30 August 2007, at the hearing of the landlords' application, at which the applicant was represented by counsel (although different counsel from counsel who represented her at the present hearing), Mr Miller indicated that he would not press the application, at least if the hearing of the Snook application were progressed to a hearing within a period ending on 28 September next.
At the 30 August 2007 hearing it became evident that some but by no means all of the orders made on 20 March 2007 had been met. In particular the directions hearing called for by those orders had not been held. The hearing of 30 August 2007 became that hearing, and I made orders in terms of a minute of orders presented to me by counsel for the applicant and amended at the hearing.
One of the orders then made was for the present hearing.
Another of the orders so made was to give leave to substitute for the Snook application an application in the terms of the substituted application prepared by counsel for the applicant (the substituted Snook application).
The substituted Snook application is an application for orders as follows:
1.A review order to issue against Robert Lawrence, a Magistrate of the Joondalup Magistrates' Court to show cause why the orders made in proceedings 1510/06 and 1799/06 by the decision of Magistrate Lawrence in the Joondalup Magistrates' Court made 21 November 2006 should not be set aside upon the following grounds:
a.in excess of his jurisdiction, having found the tenant had committed one major breach of the tenancy agreement by subletting the premises without the consent of the landlord, but that the landlords had waived their rights in respect of that breach, the Magistrate should otherwise have dismissed the landlord's application;
b.in excess of jurisdiction, and beyond the orders sought by the landlord, the Magistrate sought to determine the validity of the exercise of the option to renew;
c.in denial of natural justice, proceeded with the Hearing despite the Applicant's medical condition;
d.in denial of natural justice, prejudged the matter and failed to afford the Applicant a fair and unprejudiced Hearing;
e.in denial of natural justice, in considering the exercise of the option to renew, considered irrelevant evidence and failed to consider relevant evidence.
2.Until further Order, execution of the Order made 21 November 2006 be stayed.
It will be noted that the substituted Snook application reflects the language of RT Act s 26. That provision, set out in Snook [20], states no order may be made under MC Act s 36
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.
At the hearing of 28 September 2007, the applicant was represented by new counsel. I permitted Mr Miller to participate in the hearing.
Counsel for the applicant indicated at the hearing that he would not press grounds c and d. This left me to consider grounds a, b and e.

The matters of jurisdiction

I consider that I can deal with grounds a and b, which go to the jurisdiction of the magistrate, under this heading.
However, for reasons that will become apparent, I consider I do not need to reach a final conclusion on the points subsumed by grounds a and b.
Counsel for the applicant put to me there was no jurisdiction to make an order for vacant possession because the landlords had not applied for an order for termination of the lease as RT Act s 71 and s 72 required, and the magistrate had made no such order.
Undoubtedly the landlords' application did not include an application for an order of termination of the lease. That application, dated 19 June 2006, which is annexure B to the affidavit of Mr Miller of 27 April 2007, under the heading 'Orders Required', asks only for the following:
1.The Owners are not required to offer the Tenant another fixed term Tenancy Agreement.
2.Order for immediate possession of the property by the Owners.
The background to Order 1 was represented by the following provisions in the Tenancy Agreement, which were among a number of handwritten clauses added at the end of the Tenancy Agreement under the heading 'Additional Conditions', and which appear as annexure 'J' to the affidavit of the applicant of 20 March 2007:
45.This contract guaranteed renewal, save for major breaches of contract by Tenant, such as non-payment of rent.
46.Subsequent contract to be six months or one year. Clause 45 will roll over.
That background does not in my view indicate that Order 1 should be taken to be an application for an order for termination of the Tenancy Agreement.
Further, the only provisions in the RT Act to do with orders for possession are s 71 and s 72. Both provide that an owner may 'apply to a competent court for an order terminating the agreement and an order for possession of the premises' (s 71(1), s 72(1)).
However, it is not clear to me that, in a jurisdiction like that of the Magistrates Court under the RT Act, an application for vacant possession is not properly made if it fails also to ask for an order for termination.
That jurisdiction is one in which parties will frequently be unrepresented, as in this case before the learned magistrate. Provided that there is no prejudice to a party for a failure to ask for the orders in the terms referred to in s 71 and s 72, it does not seem to me that the application is one that should be peremptorily dismissed for such failure.
Further, it seems to me that any prejudice might be removed by the way the matter is dealt with before the magistrate. In this case, as I will indicate, the tenant was in no doubt that the landlords' application was on the basis there was no tenancy under which she could remain in possession.
However, I do not consider it is necessary for me to reach a final view on this matter.
A further matter put to me by counsel for the applicant in respect of the proceedings before the learned magistrate was that of which provision of RT Act s 71 and s 72 the magistrate considered to be the basis of his jurisdiction.
There is some reason to think the magistrate may have thought it was RT Act s 71 that was the basis for his jurisdiction. I note his reference to ordering a suspension of his order for vacant possession under s 71(3) (above). However, in my view, it was clear that the landlords' application was under s 72.
No notice of termination of the tenancy had been given to the tenant for the purposes of s 71(1). The landlords' application, the terms of which I will return to, was not put in terms of any such termination.
Rather, the landlords' application of 19 June 2006 was put in terms of a fixed term tenancy having come to an end. Those terms were that the lease was a fixed term tenancy agreement which on 18 June 2006 had come to an end, and had done so without any possibility for the 'guaranteed renewal' under Tenancy Agreement cl 45. That 'guaranteed renewal' was not possible because a 'major breach' within the meaning of that clause had been committed, and the landlords during the fixed term had indicated to the tenant they regarded such renewal as one the tenant could not rely upon for that reason.
Accordingly, only RT Act s 72 was capable of application.
Although the contrary was put to me, I do not consider that the magistrate lacked jurisdiction because he may have erroneously assigned his jurisdiction to RT Act s 71. The magistrate throughout the hearing proceeded on the basis that he had to determine whether or not, the fixed term having expired, Tenancy Agreement cl 45 and cl 46 had the effect there was a further tenancy. The parties, as I will explain, proceeded at the hearing on the same basis. In that context, it seems to me his Honour's reference to s 71(3) was a slip. If it was not a slip, it did not affect any basis for his order for vacant possession in s 72. An error in attributing jurisdiction, where there was a basis for jurisdiction, and that was the basis on which the decision maker acted, does not mean, in my view, that the magistrate 'had … no jurisdiction' for the purposes of RT Act s 26(2). That is, that provision is concerned with a lack of jurisdiction, not an error as to jurisdiction.
However, counsel for the applicant put to me that the learned magistrate had no jurisdiction because, once he had determined there was no 'major breach' for the purposes Tenancy Agreement cl 45 and cl 46, he had determined the landlords' application. The landlords had not put in issue any other basis for termination of the lease and vacant possession than termination of the lease on 18 June 2006 and the inapplicability of cl 45 and cl 46 on the ground of a major breach or breaches. That application so grounded defined the jurisdiction of the magistrate.
It is not clear to me that such is the case. It seems to me that the landlords' application had squarely put in issue whether or not there was a tenancy under which the tenant could resist orders being made under RT Act s 72. The only such possible tenancy that the landlords sought to meet, in their application or otherwise at the hearing, was one that might be said to have arisen by virtue of the guaranteed renewal under Tenancy Agreement cl 45 and cl 46.

True it is that in their application the landlords only addressed the matter of major breaches, as the basis they said for there being no possibility of such a tenancy. At the hearing, as I will explain, the landlords, in my view, raised as well the matter of whether the guaranteed renewal did not operate because the tenant had failed to exercise the option before the expiry of the lease or in any other way.
However, it seems to me that in an application under s 72 the issue of whether or not there was a tenancy which arose after the expiry of the fixed term, whether by virtue of a provision in the tenancy agreement, or otherwise, is one that either party might see fit to address. I do not consider that the form of the application or the way the matter arose at the hearing to be matters of jurisdiction. Rather, they are matters of the fairness of the proceedings. That is, for my purposes, at most they raise questions of natural justice.
However, I consider I do not need to reach a final conclusion on this point.
The reason why I consider I do not need to reach a final conclusion on the points I have considered under the present heading has to do with the way in which the matter of the operation of Tenancy Agreement cl 45 and cl 45 was dealt with by the learned magistrate. He dealt with that operation not only in terms of whether or not such operation was excluded by a major breach, but also in terms of another aspect of those provisions. That aspect was whether or not the tenant had 'validly exercised' the option the learned magistrate considered those provisions created. He did this after that aspect of the operation of those clauses arose at the hearing.
However, in my view, as I will explain, the way in which the learned magistrate dealt with that aspect was, in the circumstances, a denial of natural justice.

Natural justice

I consider that I can deal with ground e in the substituted Snook application under this heading.
Counsel for the applicant put to me that the magistrate, in considering the operation of Tenancy Agreement cl 45 and cl 46 in terms of whether or not the applicant had validly exercised the option to renew the lease the magistrate considered those provisions created, had denied the applicant an adequate opportunity to consider and seek to meet the case against her on which the magistrate ultimately decided the landlords' application. Indeed, that case was not one the landlords in fact had argued for.
There is no doubt that a decision maker who decides a case on a basis of which a party has not been given sufficient notice so as to afford that party a reasonable opportunity to consider and seek to meet that case denies that party natural justice. An authority often cited for this proposition is Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 590 ‑ 591 (Northrop, Miles and French JJ):
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
See the quotations of this passage in Re Minister for Resources; Ex Parte Cazaly Iron Pty Ltd [2007] WASCA 175 [352] (Buss JA), [1] (Wheeler JA), [2] (Pullin JA), and in Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3^rd ed, 2004) 521.
To consider whether there was such a denial in this case, I must consider in more detail, both the landlords' application, in which the tenant's alleged major breaches were the focus, and also the way in which, apart from the matter of whether the possibility of such operation was excluded by a major breach, the operation of Tenancy Agreement cl 45 and cl 46 arose and was dealt with at the hearings before, and in the decision of, the magistrate.

The landlords' application

The landlords' application was on Form 12, 'Application for Court Order', under the RT Act and dated 19 June 2006.
I have previously set out the application's 'Orders Required'.
On an attachment to the application, under the heading 'Reasons for Application', the following appeared:
We (the Owners of the property) and Pippa Snook (the Tenant) entered into a six-month Fixed Term Tenancy Agreement on 14/12/2005 for the period 18/12/2005 to 18/06/2006.
The fixed term Tenancy Agreement expired on 18/06/2005 however the Tenant is still living at the property.
The fixed term Tenancy Agreement included a clause (number 45) which states 'This contract guaranteed renewal, save for major braches of contract by Tenant such as non-payment of rent'. However, due to the Tenant having committed three breaches of the Agreement during the last six months we gave the Tenant two month's written notice that we were not going to enter into another Tenancy Agreement with her when the first expired on 18/06/2006.
The following paragraph indicated why the landlords considered the three breaches were 'major breaches'. The remainder of the attachment dealt with each of the three breaches in detail.
The learned magistrate concluded that two of the three breaches relied upon were not 'major' breaches, and the third, while a 'major' breach, had been waived: Decision, ts 19 ‑ 21.
He thus concluded that 'the tenant was entitled to the option', which was his characterisation of the effect of Tenancy Agreement cl 45.

How the operation of cl 45 apart from 'major breach' arose and was dealt with at the hearings

On the first day of the hearing of the tenant's and the landlords' applications, and during the course of the learned magistrate's exploration with the parties of the nature of their respective applications, Ms Do said (11 July 2006, ts 5)
We'd like to just stress that the tenant at no point provided us with written or verbal information that she wanted to extend the lease.
The learned magistrate indicated at that point,
if one has an option to extend one has to effectively essentially make application to extend it.
There then ensued the following exchange with the tenant:
SNOOK: I did – I did, sir. They're in the habit of denying that they received letters.
HIS HONOUR: Well, all right, and there'll be an issue of – all right, there'll be an issue of fact that I have to determine –
SNOOK: Sir.
HIS HONOUR: whether you did or not.
This appears to be the first point in the hearing before the learned magistrate where he identified with the parties as an issue the matter of whether the 'option' had been 'effectively' exercised, apart from whether or not the option could be so exercised. It was of course the latter issue that the landlords' application most clearly raised.
The first point in the evidence of the parties to which I was taken where the former issue was clearly addressed was in the testimony of Mr Miller. In his evidence‑in‑chief, he said this (12 July 2006, ts 33):
Um, I guess a couple of final points that we'd like to ‑ we'd like to point to forward, um, as I say we ‑ we gave her 2 months notice that we were not entering into the new tenant agreement, um, that was by a letter dated the 18th of April. Um, Pip failed to exercise the option to enter into another tenancy agreement at any time prior to the expiry of the lease. Um, the first time that she indicated that she wanted to remain in the property, was, um, in court on June the 23rd, after the, um - lease had expired.
Ms Snook then cross‑examined Mr Miller. However, the matter of the exercise of the 'option' was not reached until the learned magistrate raised it, as follows (12 July 2006, ts 65 - 66):
HIS HONOUR: [T]here's been evidence given by Mr Miller, that he received nothing from you, ah, that exercised - for you exercising the option for the lease to continue for a longer period of time. Are you going to be presenting any evidence, ah ‑ -
MS SNOOK: Yes, sir, I ‑ ‑
HIS HONOUR: ‑ ‑ that cause to show that you clearly ‑ ‑
MS SNOOK: Yes.
HIS HONOUR: ‑ ‑ and unequivocally - ‑
MS SNOOK: Yes.
HIS HONOUR: ‑ ‑ manifested an election to enter into the lease for a further period of time? Is there going to be evidence about that?
MS SNOOK: Sir, I have the draft letter, I don't have the final copy of what I sent, because ‑ ‑
HIS HONOUR: So you say a letter was sent, do you?
MS SNOOK: Absolutely, sir. Unfortunately my computer, um, um, had seen better days - ‑
The tenant then indicated to the learned magistrate that the final form of the letter as sent to the landlords was 'composed on a machine at ‑ at Sunseekers Backpackers in Scarborough'.
As a result of this exchange, the learned magistrate indicated he would allow the tenant to 'tender the draft', which the tenant handed up to him and which His Honour identified as 'a handwritten draft' (12 July 2006, ts 67).
Then ensued an exchange with the tenant in which she indicated that there was some one she could contact to obtain a copy of the form of the letter as sent to the landlords. That person was a lawyer in Sydney to whom a copy of the letter she proposed to send to the landlords had been sent. That exchange was as follows (12 July 2006, ts 68 ‑ 69):
MS SNOOK: I - ‑ I did, um, the - - there is somebody we can contact if ‑ ‑ if your Honour ‑ ‑
HIS HONOUR: No, no, no ‑ ‑ you ‑ ‑
MS SNOOK: ‑ - if you wish further ‑ ‑
HIS HONOUR: It's your case, ma'am, not me. I'm not the inquisitor.
MS SNOOK: Sure. I'm offering to you that they - ‑ if you wish, I - ‑ I sent it to somebody for legal - ‑
HIS HONOUR: You should have prepared your case. If you say there's something out there that you want to rely on, you should have prepared your case, you've had … (indistinct) …
MS SNOOK: I wasn't aware until yesterday that they didn't have a copy, I agree that - ‑
HIS HONOUR: Anyway, let's move on with it.
MS SNOOK: It would have helped if my computer hadn't died, because ‑ ‑
HIS HONOUR: Yes.
MS SNOOK: ‑ ‑ most of my letters ‑ ‑
HIS HONOUR: Your computer died - ‑
MS SNOOK: ‑ ‑ died on it.
HIS HONOUR: Mm hm, your computer died. The lawnmower broke down ‑ ‑
MS SNOOK: But I did - ‑
HIS HONOUR: ‑ ‑ and so on and so on. Yes?
MS SNOOK: No, the lawnmower didn't break down - ‑
HIS HONOUR: Well ‑ ‑
MS SNOOK: Um ‑ ‑
HIS HONOUR: ‑ ‑ it wasn't working and you couldn't borrow one from the neighbour- ‑
MS SNOOK: Oh, I see what you mean, yes.
HIS HONOUR:  ‑ ‑ that was why you didn't mow the lawn ‑ ‑
MS SNOOK: Yeah, yeah ‑ ‑
HIS HONOUR: - ‑ and so on and so forth. Yes?
MS SNOOK: Um, all I'm saying is that there is a lawyer in Sydney, who it was sent to for - ‑ to make sure it had been written - ‑
HIS HONOUR: Oh - ‑
MS SNOOK: ‑ ‑ legally correctly. I phoned him last night trying to see if he had a copy on his computer to get to the court in time, and unfortunately he doesn't, but he did send another copy back that the Sunset backpackers so it's possible that they have that, that ‑ ‑ so if it comes to it, we can ‑ ‑
HIS HONOUR: Well it may not.
MS SNOOK: ‑ ‑ try and locate it for ‑ ‑
HIS HONOUR: So it ‑  ‑ so there's a lawyer in Sydney now in the picture as well? All right.
MS SNOOK: What I send all my letters over there for ‑  ‑ for checking.
HIS HONOUR: Yes.
MS SNOOK: That I ‑  ‑
HIS HONOUR: All right, well let's get back, I just wanted to just clear ‑  ‑
MS SNOOK: Yeah.
HIS HONOUR: ‑ ‑ clarify about the option, and I just wanted ‑ ‑ you can get back on to the ‑ ‑
MS SNOOK: Okay.
The handwritten form of the letter, which it appears was taken into evidence (as Exhibit 22: see the hearing of 10 August 2006, ts 123) before the learned magistrate as a result of these exchanges, read as follows:
05/05/06 Draft 2 Nash St
Hillarys
WITHOUT PREJUDICE 6025
Sir/Madam,
My computer has died, so this is handwritten. Notwithstanding the court applications, I am required by law to inform you that we will be taking advantage of Clause 44/45 of our lease, guaranteeing renewal. This does not affect the court case. You are still required to repair the outstanding breaches
Yours Sincerely
Signature
Subsequently, after further exchanges between the tenant and the learned magistrate having to do with the condition of the premises in Hillarys, the learned magistrate noted that neither the landlord nor the tenant had 'any legal advice' and he was 'not going to give you any legal advice' (12 July 2006, ts 71). He then raised with the parties whether there was scope for them to resolve the matter, in the context of his outline of the issues as he had identified them to that point in the proceedings. Those issues as so identified were as follows (12 July 2006, ts 72 ‑ 73):
HIS HONOUR: I just ‑ ‑ I've read all the letters, I read them over night, I'm just saying, ah, there are going to be issues, there are going to be legal issues about whether I'm satisfied the option has been exercised.
If I'm satisfied it ‑ ‑ there was an attempt to exercise the option, I'll then need to determine whether a, ah ‑ ‑ on the evidence, there's been a - - a major breach, for instance by taking in a sub‑tenant before the agreement was settled, ah, and ‑ - and the lesser perhaps, with the dogs and perhaps the major breach, ah, the failing to give access to the place.
So ‑ ‑ so if someone was relying on option, they've got two things to do, they ‑ ‑ they ‑ um, well it's the actual - - the landlord's got to satisfy me on the balance of probabilities that the option wasn't effectively, ah, exercised.
That if it was, effectively exercised, there were major breaches that actually … (indistinct) … any exercise that is, ah actually just ‑ ‑ um, trying to find another word for … (indistinct) … but um ‑ that is just to cut the ground from underneath, the ah ‑ ‑ the option to renew.
But then again, I don't want to be accused at a later stage that I somehow or other railroaded people into - ‑ to settling this matter, but it's ‑ ‑ it's become quite extraordinary, I must say.
Quite extraordinary in the, ah, in the type of matters that come before this court, under the Residential Tenancies Act.
The allegations and counter‑allegations ‑ is going to be the ‑ ‑ the tenant needs to prove to me, beyond reasonable ‑ ‑ oh, on the balance of probabilities, that she suffered loss and is entitled to compensation … (indistinct) …
The landlord's got to convince me about those ‑ ‑ the option. He's got to convince me of that on the balance of probabilities. There's an offer on the table about some months and so on.
To this point, I consider that the learned magistrate had framed the issue of whether or not the 'option' had been 'effectively' exercised in terms of whether or not there had been 'an attempt to exercise the option'. That appears to have been a reference to the issue, as framed by the landlords and responded to by the tenant, of whether or not the letter of exercise of the option referred to by the tenant, or perhaps any letter that might be related to exercise of the option by the tenant, had been received by the landlords.
I was not taken to any cross‑examination of Mr Miller as to whether or not he had received any letter of either sort. However, during his cross‑examination, the tenant raised with the learned magistrate the matter of whether or not she could put into evidence a copy of the letter sent to the landlords. The learned magistrate responded that she could seek to obtain a print out of the letter, and apply, at the hearing then scheduled for 10 August 2006, to 'reopen your case' (12 July 2006, ts 99). He also indicated that the tenant might give evidence as to the sending of that letter, on which he was 'not closing the door' (ts 100). This exchange culminated in the following (ts 100 ‑ 101):
MS SNOOK: It just seems to be quite a crucial document to - ‑ to what your Honour wants, and that ‑ ‑ I'm trying to seek how I can establish its existence.
HIS HONOUR: I've said all I'm going to say on the issue ‑ ‑
MS SNOOK: Mm hm.
HIS HONOUR: ‑ - I think it to be quite clear that I tried to give you as much assistance as I possibly can.
MS SNOOK: Sir.
I was directed to a part of the cross‑examination by the tenant of Ms Do, one of the landlords, on 10 August 2006 (ts 121 - 126). In that cross‑examination, Ms Do confirmed neither she nor Mr Miller had received what the tenant referred to as the 'renewal notice' in relation to what the learned magistrate had the tenant confirm as 'the option business' (ts 121).
Then ensued an exchange between the tenant and the learned magistrate in which the tenant told him she had faxed the handwritten draft to 'somebody in Sydney that passed it to their company lawyer' one of whom in turn had 'emailed me with corrections' (ts 122). She indicated she had a record of the email reply, which, in the absence of proof of posting of the letter to the landlords, she indicated she sought to rely upon to found the 'inference …, knowing it was needed, that one would have posted it' (ts 125).
After the learned magistrate had reminded the tenant that Ms Do had said she 'didn't receive it' (ts 125), referring to the letter the tenant said she had sent to the landlords, and after Ms Do had said to the tenant 'you don't have a copy of the final letter sent' (ts 126), there was the following exchange, largely between the tenant and the learned magistrate, but also towards the end involving Mr Miller (ts 126 - 127):
MS SNOOK: I don't. I haven't even looked for it since. That's the copy I had on record at the time. I was following the path that I needed to prove that it had been sent to Sydney, so I haven't looked for it since.
HIS HONOUR: All right. Well, if you - - if you want to - ‑
MS SNOOK: Because even if I had a copy of the final I can't prove that I posted it. So I'm trying to prove that a lawyer checked it, which would infer that I knew that it was needed and that, therefore, it was ‑ ‑ (TO WITNESS): You know, jolly well, that you can chuck it in the bin and deny that you ever got it.
HIS HONOUR: All right. Well, that's it. That's enough.
MS SNOOK: Whether I have the final or not.
HIS HONOUR: Any further questions?
MS SNOOK: Well, if you want -  ‑
HIS HONOUR: She says she didn't receive it.
MS SNOOK: Do you want me to tender this email record or not, sir?
HIS HONOUR: Yes. Well, I'll take it into account. It's presumably dated and so forth and so on.
MS SNOOK: Yes, sir.
HIS HONOUR: Yes. You can show it to Mr Miller.
MS SNOOK: I'll just mark it, so that you don't have to trawl it.
HIS HONOUR: Have you finished with your questions for Ms Do?
MS SNOOK: Yes, sorry. I shouldn't handed it there. I should have handed ‑  - Handed to Ms Do.
HIS HONOUR: Well, I don't think ‑  ‑ I mean, you can hand it to me as part of your case, since I'm letting you re‑open your case and tender that. If Mr Miller has got any questions about it then I'll allow him to ask you a question about it.
MR MILLER: About this?
HIS HONOUR: Yes.
MR MILLER: It doesn't actually specify what the letter is about. It just says there's an email and ‑  -
HIS HONOUR: So it's put to you that it doesn't specify ‑  ‑
MS SNOOK: It does. It says: 'Re the letter to your landlords.'
MR MILLER: That's right.
HIS HONOUR: I see.
MS SNOOK: "Re the fax to your land ‑  ‑ " Here - ‑ sorry, there: "As regards to your fax of the 5th of May, I suggest that you add that they are required to fix the outstanding problems to make the house habitable, court case or no court case."
MR MILLER: Yes, but it doesn't make any reference to the fact that you actually ‑  ‑ it's a letter stating that you want to exercise your option or the option.
MS SNOOK: Well, it's the fax of the 5th of May. I ‑  ‑
MR MILLER: I know, but you don't have a copy of the fax and ‑  ‑
HIS HONOUR: I see

It is evident from this material that the focus of the cross‑examination before the learned magistrate was on whether any letter that might be related to exercise of the option had been received by the landlords. There is, however, no pursuit, at this point or any other to which I was taken, that the letter as sent to the landlords might have differed from the handwritten draft a copy of which was Exhibit 22. Given the evidence of Ms Do, that no letter was ever received, the matter could not be pursued through that evidence. However, the learned magistrate appears to have taken into evidence (although he did not appear to assign an exhibit number to) the record of email advice from the lawyer or another person in Sydney which, as quoted in the tenant's exchange with Mr Miller, indicated there was reason to consider there was a difference between the handwritten draft and any letter produced after that e-mail had been received. I was not taken to any other transcript material in which the content of any letter produced after the email advice from the lawyer or that other person had been received was explored, in evidence or argument.
Finally, I note that the closing submissions by the tenant and Mr Miller for the landlords were relevantly directed only to whether or not a renewal notice of any kind had been provided.
In what the applicant deposed were excerpts from her written closing submissions to the learned magistrate for the final hearing on 21 November 2006 (Snook affidavit of 20 March 2007, annexure 'M'), she submitted, both that there was sufficient evidence she had sent a letter 'taking advantage of guaranteed renewal', and that in any event her application to the court 'constitutes a renewal notice'. As I have already indicated the tenant did not appear to make oral submissions at the final hearing before the learned magistrate, that of 21 November 2006.
Mr Miller's closing submissions to the learned magistrate at the final hearing of 21 November 2006 were relevantly as follow (ts 7):
Pip claims that she did inform us via a posted letter. However, we did not receive such a letter and the only evidence that Pip has to support her claims that such letter exists is an email that she sent to someone she claims is her lawyer in Sydney, yet the email makes no reference to anything even remotely resembling exercising her option for another tenancy agreement either in the subject heading or in the accompanying text, and the other piece of evidence that Pippa's provided to support her claims is a half finished handwritten draft which looks like it's been whipped up in the car‑park midway through this court case.
The questions I would ask is where is the typed letter that she supposedly posted to us, where is the fact that she supposedly sent to the person in Sydney, where is the electronic document that she sent via the email? I suggest that Pip did not provide or has not provided them to the court because they do not exist and that's the reason we did not receive a letter from Pip exercising her option to enter into another tenancy agreement because she did not create or post such a letter.

How the operation of cl 45 was dealt with in the decision of the learned magistrate

In his decision, the learned magistrate introduced how he proposed to deal with 'the option to renew' as follows (ts 12):
Subsequent to the tenant's application, the landlord has applied for vacant possession of the premises in question on the basis that the tenant has remained in the premises in circumstances where she has not validly exercised an option to renew, that option being contained in the special conditions of the fixed term lease, and in any event that she cannot rely on that condition since she has committed major breaches of the lease.
It will be noted this characterisation of the landlord's application in fact inverts the way in which the landlords had approached their case at the hearings. It is also not clear, in light of that approach, whether or not the reference to validity subsumes more than the factual matter of any attempt by the tenant to exercise the 'option'.
Subsequently, the learned magistrate clarifies his understanding of the landlords' case as follows (ts 13):
In regard to the option to renew, there is the issue of whether the tenant effectively exercised her option to renew. That involves a question of fact whether she actually forwarded the letter, a draft of which was tendered by her in evidence, and whether, if I am satisfied she did, that was an effective exercise of the option.
The learned magistrate's factual finding and other determination were expressed as follows (ts 22):
I am satisfied, as I say, that on the balance of probabilities the tenant did forward the letter purporting to exercise her option to renew the lease. The correspondence she forwarded, however, was silent as I say ‑ as I've already said, as to whether the election was for a period of six months or 12 months.
I'm satisfied on the balance of probabilities of this because I have had before me two parties who are assiduous in terms of their letter writing and because I find that given the personality of the tenant as I have assessed it in the course of this hearing it is not something she would have failed to do, albeit that she failed to specify the time period.
That is, I'm satisfied she sent the letter but I'm also satisfied that the letter does not make any mention of for how long the option is sought to be extended. Among the principles relating to options is that the appropriate question to be asked is what anybody who received the letter subsequently said to amount to the exercise of the option would fairly have understood to be the meaning of it. In all the circumstances of its receipt, see Prudential Assurance v Health Minders (1987) 9 NSWLR 673 at 677.
Certainly as I've already said and emphasised the letter unequivocally evinces a wish to exercise the option but for how long and if there is no mention of the term then can it be said to be understood to mean one term, for instance six months on the basis that the lease was originally for six months or the other being 12 months which is referred to in the option.
The seeds for this situation were sown when the parties hastily cobbled together the additional clauses. The presence of alternative periods may be said to effectively create the need for an unequivocal election for one term or the other. This is, I find, the law in relation to options. It is an issue that has arisen in other residential tenancy disputes in particular where the parties seek, as I say, to hastily or without advice cobbled together clauses.
If the person seeking to rely on the clause does not nominate the period then how can it be said to be unequivocal in the light of the wording of that clause. It is not appropriate for the court to guess or speculate what period was opted for. I am very conscious of the fact that in this point of the reasons it has the effect of essentially the tenant's case falling at what might be expressed as the last hurdle but as a matter of law, that is the position.
Those reasons appear to indicate the learned magistrate took the contents of the handwritten draft letter (Exhibit 22) as being in all material respects the content of the letter sent to the landlords. The basis for any such conclusion is not apparent from his reasons. It was presumably in part the failure in the email from the lawyer or other person in Sydney suggesting changes to the handwritten draft letter to address the term of any renewal of the tenancy, whether six months or 12 months. On that basis, and presumably the burden of proof on the tenant on this issue, the learned magistrate appears to have found that the tenant had only shown a letter was sent to the landlords in terms of the handwritten draft letter.

The denial of natural justice

In my view the approach taken by the learned magistrate in his reasons for decision just described represented a denial of natural justice to the applicant in the sense outlined in Alphaone.
The hearing before the learned magistrate was in the relevant respect conducted on the basis that there was an issue as to whether or not an attempt to exercise the 'option' had been made prior to the expiry of the option. The matter of whether or not the content of any documentary attempt was sufficient to constitute in law an exercise of the option of course made relevant the matter of the content of any letter relating to the exercise of the option. That in turn made a relevant issue the matter of whether or not the text of the handwritten draft letter (Exhibit 22) was in all material respects the text of the letter found to be sent to the landlords.
However, the way the learned magistrate approached his decision meant that the issue just described was not drawn to the parties' attention.
The learned magistrate faced a difficulty in that respect, in adversarial proceedings, a difficulty which he appears to have drawn to the parties' attention as I have indicated. That difficulty was the limits on the extent to which he could intervene in the proceedings, limits that preserved to the parties to adversarial litigation their 'control over the issues for decision and presentation and gathering of evidence' and that also protected 'the neutrality of the judge': Aronson et al, 525; see also Jones v National Coal Board [1957] 2 QB 55, 63 ‑ 64 (Denning, Parker and Romer LJJ). As Jones would seem to indicate, exceeding those limits may result in the judge denying the parties natural justice.
However, the principles of natural justice appear to me to have required at the least that the learned magistrate have directed the parties' attention to an issue, that of the content of the letter sent to the landlords, on which the tenant had not presented direct evidence, which the conduct of the proceedings by the parties had not addressed, but which the analysis of the learned magistrate had brought into focus as a relevant issue. At least this was the case where, as here, both parties were self-represented, and where the effect of the learned magistrate's exchanges with the tenant, as would seem likely to have been apparent to his Honour, appears to have been to direct her away from any possibility of engagement with the issue in question.
On that basis, I concluded that the tenant, the applicant before me, was denied natural justice before the learned magistrate in the respect indicated.
I note my discretion in relation to relief under MC Act s 36: see Re An Application under the Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151, [48] ‑ [50] (Beech J).
That discretion appears to me to be one, in a case of denial of natural justice, at least of the sort in this case, in the nature of a discretion to refuse relief: see Nguyen Thanh Trong v Minister for Immigration Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463, 477 ‑ 478 (Merkel J); Aronson, et al 458.
I see no reason to refuse relief, at least as to the quashing of the decision of the learned magistrate on the landlords' application. In particular, I consider, on the extracts from the hearing of 10 August 2006 above, it is possible the applicant might have sought and obtained a copy of the document she claimed had actually been sent to the landlords had there not been the denial of natural justice I have found. That document, had it been produced, might have affected the end result. See on the relevance of such a consideration Santa Sobina College v Minister for Education (1985) 58 ALR 522, 540 (Beaumont J).
Nor is there material before me which would indicate the applicant was guilty of conduct, such as delay in the bringing of the Snook application, which might warrant refusing relief: see Hoffman La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 320 (Lord Denning), referred to with apparent approval in Gudgeon v Black (1994) 14 WAR 158, 179 (Malcolm CJ, Pidgeon and Nicholson JJ agreeing).
On that conclusion, I ordered that the review order should be made final, and the decision of the learned magistrate on the landlords' application should be quashed.
I did not consider it would be appropriate to order a rehearing of the landlord's application, in view of the time that had passed and the events that have happened since the landlords' original application was made and was determined. Those events included the continued occupation of the residential premises in Hilary by the applicant. Rather, it appeared to me that the landlord should simply be left at liberty to make such further application as he saw fit in the circumstances as they now are.
In the circumstances of this case, I also determined that no order as to costs was appropriate.
It is well established that no order as to costs against a person in the position of the learned magistrate would normally be appropriate: see Kendall C and Curthoys J, Civil Procedure in Western Australia, [56.0.9] and [66.1.1]. I did not consider this is a case in which there was sufficient reason to depart from that approach.
As to the position of the landlords, I had the power to order costs against them, of course: O 56A r 5(2). However, I considered they did not contribute to the denial of natural justice I concluded was shown.
Further, although they applied to lift the stay of execution of the order appealed from, the application was not pressed to a hearing, as a result of the landlords' acquiescence in the manner of bringing the matter of the application of the review order to a hearing which resulted in the present decision.
I also noted that no claim for costs against the landlords was pressed on me.
In those circumstances, I did not consider an order for costs against the landlords would be appropriate.