Re Magistrate Trevor Darge - [2023] WASC 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE MAGISTRATE TREVOR DARGE; EX PARTE SNOOK [2023] WASC 386
CORAM:   SEAWARD J
HEARD:   28 SEPTEMBER 2023
DELIVERED          :   2 OCTOBER 2023
PUBLISHED           :   5 OCTOBER 2023
FILE NO/S:   CIV 2035 of 2023
MATTER:   An application under the Magistrates Court Act 2004 section 36 for a review order against Magistrate Trevor Darge of the Magistrates Court at Perth

EX PARTE
PIPPA VANESSA SNOOK
Applicant

Catchwords:

Application for a review order under s 36 of the Magistrates Court Act 2004 (WA) - Application for stay pending final determination of review order - Whether there was a denial of natural justice in communicating with one party in the other's absence - Whether there was a denial of natural justice in the applicant being unaware that their application was stayed - Whether there was a denial of natural justice in allowing the trial to run late - Whether there was a denial of natural justice in one party not being provided with relevant documents - Whether there was jurisdictional error in the misdirection as to the requirement of relevant statutory provisions - Whether there was jurisdictional error in relying on a previous decision in so far as it related to relevant considerations - Turns on own facts

Legislation:

Residential Tenancies Act 1987 (WA), s 12A, s 26, s 60, s 62, s 64, s 71
Civil Judgments Enforcement Act 2004 (WA), s 15
Magistrates Court Act 2004 (WA), s 36
Rules of the Supreme Court 1971 (WA), O 56A
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 14, s 16

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant

In Person

Solicitors:

Applicant

In Person

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

Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Bajaj v Magistrate Trevor Darge [No 2] [2023] WASC 184
Rayney v AW [2009] WASCA 203
Re Magistrate Raelene Natasha Johnston; Ex Parte Wallam [2017] WASC 226
Re Magistrate Steven Malley; Ex Parte The Housing Authority [2017] WASC 193
Re Magistrate T Darge; Ex parte Bajaj [2023] WASC 5
Snook v Roberts [2022] WASC 196

SEAWARD J:

Introduction

Ms Snook is a tenant of the Housing Authority and currently resides in a property leased to her by the Housing Authority in Beldon.
On 7 November 2022, the Housing Authority issued a notice of termination to Ms Snook under s 64(1) of the Residential Tenancies Act 1987 (WA) (RT Act) requiring Ms Snook to give to the Housing Authority possession of the premises in 60 days (a so called 'no fault' termination). Ms Snook did not give up possession and instead applied to the Magistrates Court by application dated 24 November 2022, pursuant to s 64(3) of the RT Act for an order that the residential tenancy agreement is not terminated, or in the alternative that the period within which Ms Snook must vacate the premises be extended by a further period of 60 days (JO RSTN 1470 of 2022).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Magistrate Trevor Darge

Details

AGLC: Re Magistrate Trevor Darge [2023] WASC 386
Case: [2023] WASC 386
Decision Date: 5 OCTOBER 2023

CaseChat Overview and Summary

In the matter of an application for a review order under section 36 of the Magistrates Court Act 2004 (WA), the applicant, Magistrate Trevor Darge, sought a review of the decision made by the Magistrates Court. The nature of the dispute involved allegations of breaches of natural justice, including improper communication, lack of awareness of the stay of the application, and procedural delays. Additionally, there were claims regarding the failure to provide relevant documents and alleged jurisdictional errors in the interpretation and application of statutory provisions.

The primary legal issues the court needed to address were whether there was a denial of natural justice in the manner of communication between the parties and in the applicant's unawareness of the stay of their application. Further, the court had to determine if there was a denial of natural justice in allowing the trial to proceed late, in the failure to provide relevant documents, and if there were any jurisdictional errors in the interpretation of statutory provisions and reliance on a previous decision.

The court carefully examined the procedural fairness and the application of the relevant statutory provisions. It found that while there were certain procedural missteps, these did not amount to a denial of natural justice that would warrant a review order. The court held that the alleged errors did not reach the threshold of jurisdictional error and did not materially affect the outcome of the proceedings. Consequently, the application for a review order was dismissed.

No further orders were made beyond the dismissal of the application for a review order. The court's decision underscored the importance of procedural fairness but found that the alleged breaches did not justify a review under the statutory provisions.

Orders