Re Magistrate Trevor Darge
[2023] WASC 386
•5 OCTOBER 2023
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). The grounds for that application were as follows:
The Respondent issued a Notice of Termination dated 7 November 2022 ('the Notice') without specifying any ground for doing so (pursuant to section 64 of the Residential Tenancies Act 1987 ('the Act') in circumstances where:
(a)by letter of 22 June 2022, the Respondent had agreed to consider an application by the Applicant to purchase the property;
(b)the Applicant advised the Respondent that she would purchase the property;
(c)the Applicant has remained in contact with the Respondent in relation to the purchase of the property;
(d)the Applicant remains willing to purchase the property; and
(e)the Respondent was wholly or partly motivated to give the Notice by the fact that the Applicant has taken steps to secure or enforce her rights as a tenant through the Supreme Court.
By application dated 30 January 2023, the Housing Authority applied under s 71 of the RT Act to the Magistrates Court for an order terminating the tenancy agreement and an order for possession of the premises (JO RSTN 111 of 2023).
These two matters were heard together in a trial[1] before Magistrate Darge on 29 June 2023 (Trial). The learned Magistrate delivered his decision and reasons on 12 July 2023 (Reasons), whereby his Honour upheld the Housing Authority's application and ordered that the tenancy terminate on 10 September 2023, and vacant possession be provided on that date. The learned Magistrate also dismissed Ms Snook's application.
[1] I will refer to the hearing on 29 June 2023 as a trial to distinguish from the other appearances.
Ms Snook remains in the premises and the documents indicated that on 13 September 2023 the Housing Authority obtained a Property (Seizure and Delivery) Order under the Civil Judgments Enforcement Act 2004 (WA).
Ms Snook applies under s 36 of the Magistrates Court Act 2004 (WA) (MC Act) for a review order requiring the learned Magistrate to satisfy the court that the decision made on 12 July 2023 should not be set aside. In the event that the court grants Ms Snook a review order requiring the learned Magistrate to satisfy the court that the decision made on 12 July 2023 should not be set aside, Ms Snook also applies for a stay pending the final determination of the review order.
By order of Registrar Watroba dated 19 September 2023, both the learned Magistrate's orders and the Property (Seizure and Delivery) Order were suspended until 6 October 2023 (pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA)), pending consideration by this court of Ms Snook's application under s 36 of the MC Act.
For the reasons I will now detail, I will grant Ms Snook a review order requiring the learned Magistrate and the Housing Authority to satisfy the court that the decision made on 12 July 2023 should not be set aside on only some of the grounds advanced by Ms Snook. I will otherwise dismiss Ms Snook's application. I will also order that the decision of the learned Magistrate (and the associated enforcement action) be stayed until determination of the final review order.
Application and evidence
This matter was listed before me for hearing on 28 September 2023. Ms Snook appeared in person at the hearing of her application.
Ms Snook filed an application which did not contain any grounds of review. Accompanying Ms Snook's application was a five page affidavit which sought to amend the application to add further grounds of review and listed 12 grounds of review. However, that affidavit did not attach any of the documents relevant to the application, including any of the orders, evidence or transcripts from the Magistrates Court. Absent this information, the grounds were not readily understandable.
By correspondence with the court on 18 September 2023, Ms Snook indicated that she was going to file a fresh affidavit with amended grounds. Ms Snook was informed that all materials for the hearing listed for 28 September 2023 were required to be filed by 3.00 pm on 26 September 2023.
Ms Snook did not file any materials by this date. At 4.30 pm on 27 September 2023, Ms Snook emailed the court attaching Registrar Watroba's order dated 19 September 2023 and the transcript of that hearing. Then, at 8.30 am on the day of the review order hearing Ms Snook emailed the court a large quantity of material including numerous transcripts and a document entitled 'Submissions Andamnded [sic] Grounds of Appeal' (Submissions Document).
I was not able to read all of the materials prior to the commencement of the hearing on 28 September 2023. I heard oral submissions from Ms Snook on 28 September 2023 and at the conclusion of the submissions I indicated that I would reserve my decision and deliver it at 3.00 pm on Monday 2 October 2023, so as to ensure that Ms Snook was given notice of the court's decision prior to the expiration of the suspension orders on 6 October 2023.
By email sent to my chambers at 8.45 am on 2 October 2023, Ms Snook provided a further 14 page document headed 'Revised Grounds of appeal in support of a Review Order'.
The material filed by Ms Snook is at times difficult to understand.
Magistrates Court proceedings
The background to the Magistrates Court proceedings is long and tortuous. The s 64(1) termination notice issued on 7 November 2022 follows a previous termination notice issued by the Housing Authority. Unlike the present notice, that notice specified that it was given pursuant to s 62 of the RT Act on the basis that Ms Snook had breached a term of the tenancy agreement. That termination notice was the subject of review proceedings in the Supreme Court where his Honour Justice Solomon granted a final review order: Snook v Roberts [2022] WASC 196. It appears that following this decision the previous termination notice proceedings were discontinued by the Housing Authority, and instead the present s 60(1) termination notice was issued. As outlined by Solomon J, it is not necessary to go into the detail of the history of the matter, other than to note:[2]
Ms Snook's tenancy has suffered a long and unhappy journey. Included among the myriad of issues is the concern of the Housing Authority to conduct maintenance on the property, the acrimonious episodes that have unfolded in the Housing Authority's attempts to have maintenance people attend the property, and Ms Snook's unhappiness with the manner in which those attempts have been orchestrated or conducted.
[2] Snook v Roberts [2022] WASC 196 [4].
There have been seven appearances in the Magistrates Court in relation to these two applications (leaving aside enforcement proceedings): 13 January 2023 (1470 of 2022 only); 23 February 2023 (both matters); 23 March 2023 (both matters); 26 April 2023 (1470 of 2022 only, this hearing being called by the court and proceeding in Ms Snook's absence); 5 May 2023 (both matters); 29 June 2023 (trial of both matters); 12 July 2023 (reasons for decision of both matters).
Ms Snook also has two other sets of proceedings in the District Court currently active. Only one is relevant here, and that is Ms Snook's claim against the Director General of the Department of Communities (under which the Housing Authority is administratively located) seeking specific performance of what she alleges is a contract for sale between the Director General and Ms Snook for the purchase by Ms Snook of her current rented property. Ms Snook has consistently requested that the Magistrates Court proceedings not be heard until after the completion of the District Court proceedings because she says that if the termination order is made, she will be without a home to live in, and she will be unable to secure an investor to assist her in purchasing the house.
The learned Magistrate ordered a relatively lengthy programming timetable for the Magistrates Court matters, programming each to trial on 29 June 2023 (bearing in mind the requirement under the RT Act that tenancy matters shall be heard and determined wherever practicable within 14 days after they are instituted and, where that is not practicable, as expeditiously as possible). Initially, only the Housing Authority's application 111 of 2023 was programmed to that trial date (at the hearing on 23 March 2023). However, at the hearing on 26 April 2023, Ms Snook's matter 1470 of 2022 was also listed for the same trial date. An application by Ms Snook to 'dismiss, stay or adjourn sine die' the Trial was dismissed by the learned Magistrate at the hearing on 5 May 2023.
The Trial took place on 29 June 2023. Neither party was represented. The Housing Authority tendered documents and called two witness. The evidence in chief of each witness consisted of their witness statement filed in accordance with the programming orders made on 23 March 2023. Ms Snook did not file any witness statements in accordance with those orders, but nonetheless gave evidence. At the conclusion of the Trial the learned Magistrate reserved his decision.
Magistrate's reasons
The learned Magistrate delivered his decision and reasons on 12 July 2023.
The learned Magistrate commences by outlining the two applications before the court and provides a procedural history of the applications and the Trial (and the manner in which it proceeded).
His Honour then summarises the requirements contained in s 64 and s 71(3)(b)(i) of the RT Act and considers the evidence relied on by the Housing Authority to establish the existence of the tenancy agreement and the notice of termination. The learned Magistrate concludes that there is no dispute in relation to these matters.
The learned Magistrate then turns to the question of whether Ms Snook can establish the matters referred to in s 71(3)(b)(i) of the RT Act. The learned Magistrate then considers some of the case law in relation to this section and then turns to the onus of proof. The learned Magistrate outlines the requirements of s 71(4) and goes on to the consider the evidence in relation to this question and concludes that Ms Snook bears the onus of proof.
The learned Magistrate then sets out his consideration of the evidence led in this regard, before concluding that he is not satisfied that the Housing Authority was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce his rights as a tenant.
After concluding that he is not satisfied of the requisite motive, the learned Magistrate then concludes that even if he is wrong in that regard, he would still exercise his discretion to order the termination of the tenancy agreement.
The learned Magistrate then orders that the tenancy agreement shall terminate and Ms Snook shall deliver vacant possession on 10 September 2023.
Legal Principles
Section 36 of the MC Act provides for an alternative statutory form of relief to the prerogative writs which are not available in relation to a decision of a Magistrate.[3] The provisions provide for a two stage process whereby a person may apply ex parte under s 36(1) to the Supreme Court for an order requiring the court officer who made the decision (in this case the learned Magistrate) and any person who will be affected by the act, order or direction, to satisfy the Supreme Court at a later hearing that the act, order or direction made by the court officer should or should not be done or made or set aside, as the case requires.
[3] s 35 MC Act.
The procedure for making, and in relation to, an application under s 36(1) is set out in O 56A of the Rules of the Supreme Court 1971 (WA) (RSC). Ms Snook seeks both a review order pursuant to s 36(1) of the MC Act and a stay of execution pursuant to O 56 r 3(3)(d) of the RSC pending the determination of the review hearing (if granted).
Importantly, s 26(2) of the RT Act modifies the application of s 36 of the MC Act in relation to matters arising under the RT Act, by providing that no order shall be made under s 36 of the MC Act unless the Supreme Court is satisfied that:
(a)the Magistrates Court had or has no jurisdiction conferred by or under the Act in respect of the proceedings; or
(b)that a party to the proceedings has been denied natural justice.
The legal principles in relation the application of s 36 of the MC Act were explained in Rayney v AW [2009] WASCA 203 [25] ‑ [34] and Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [47] ‑ [54]. I have not repeated those here, save to say that:
(a)the reference to 'no jurisdiction' in s 26(2) of the RT Act should be taken to mean jurisdictional error;
(b)at the first stage in the process the court is empowered to make a review order requiring the decision-maker to show cause if the material before the court demonstrates an arguable case in relation to a ground of jurisdictional error or a denial of natural justice. That is, if the material demonstrates that the case has reasonable prospects of success; and
(c)an application under s 36 is concerned only with the legality of decisions, and not the merits.
The categories of jurisdictional error in relation to a decision of an inferior court (in addition to a denial of natural justice) were summarised by the Court of Appeal in Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [53] as follows:
First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied ([...] a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
These grounds of jurisdictional error are narrower than the grounds applicable to an administrative decision maker who is not a court or anomalous tribunal.
The RT Act regulates the relationship of lessors and tenants under residential tenancy agreements. The Magistrates Court has exclusive jurisdiction to determine applications made under the RT Act.[4] By s 12A(2) of the RT Act, the applicable procedure for a residential tenancy dispute is that applicable for a 'minor case' under pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). By s 14, proceedings under the RT Act shall be heard and determined wherever practicable within 14 days after they are instituted and, where that is not practicable, as expeditiously as possible. The court hearing the application may proceed in such a manner as it considers best suited to the purposes of the Act[5] and the court is not bound by the rules of evidence.[6]
[4] s 12A RT Act.
[5] s 20(a) RT Act.
[6] s 21 RT Act.
Section 60(1) of the RT Act provides that despite any act or law to the contrary, a residential tenancy agreement shall not terminate or be terminated except in one of the circumstances specified in s 60 of the RT Act. There was no dispute in the present case that a periodical residential tenancy agreement existed between the Housing Authority and Ms Snook. Relevant for present purposes is s 60(1)(a) which provides for a termination:
(a) where the lessor or tenant gives notice of termination under this Act and —
(i) the tenant delivers up vacant possession of the premises on or after the expiration of the period of notice required under this Act; or
(ii) a competent court, upon application by the lessor, terminates the agreement under section 71;
The RT Act provides for a number of different circumstances in which a notice of termination may be given and in the present case it is not disputed that the Housing Authority issued a notice of termination under s 64 of the RT Act which provides:
(1) A lessor may give notice of termination of a residential tenancy agreement to the tenant without specifying any ground for the notice.
(2) Where a lessor gives notice of termination under this section, the period of notice must be not less than 60 days before the day on which the tenant is required under the notice to give to the lessor possession of the premises.
(3) A tenant may, within 7 days after receiving a notice of termination under this section, apply to a competent court for an order —
(a) that the period of notice be extended by a further period of up to 60 days; or
(b) if the tenant is of the opinion that the grounds set out in section 71(3)(b)(i) apply — that the residential tenancy agreement is not terminated as a consequence of the notice.
(4) On an application under subsection (3) the court may, as it thinks fit having regard to the justice and merits of the case —
(a) extend the period of notice for a further period of up to 60 days and make such other orders as to compensation of the lessor for any loss caused by the extension or as to any other matter that it considers is, in the circumstances of the case, appropriate; or
(b) make an order that the residential tenancy agreement is not terminated as a consequence of the notice; or
(c) make an order referred to in section 71(2) and in that case the court must specify the day as from which the order for possession operates, being a day that is the later of —
(i) a day not less than 60 days after the day on which the notice of termination was received; or
(ii) a day within 7 days after the day on which the order was made.
(5) This section does not apply in relation to a residential tenancy agreement that creates a tenancy for a fixed term during the currency of that term.
Section 71 of the RT Act is also relevant to both applications before the learned Magistrate and relevantly provides:
(1)Where a lessor or a tenant under a residential tenancy agreement gives notice of termination to the other under this Act except under section 70A and the tenant fails to deliver up possession of the premises on the day specified, the lessor may, subject to section 62(5)(a), within 30 days after that day, apply to a competent court for an order terminating the agreement and an order for possession of the premises.
(2) Subject to this section, a competent court shall, upon application under this section, make an order terminating the agreement and an order for possession of the premises, if it is satisfied —
(a) that notice of termination was given by the lessor or tenant to the other and that it complied with and was given in accordance with this Act; and
…
(3) Notwithstanding subsection (2) the court may —
…
(b) refuse to make the orders under that subsection, if it is satisfied —
(i) that the lessor was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce his rights as a tenant; or
…
(4) Where in any proceedings upon an application under this section the court is satisfied that the tenant had, within the period of 6 months before notice was given by the lessor, complained to a public authority or taken steps to secure or enforce the tenant's rights as a tenant, the burden shall lie on the lessor to prove that the lessor was not wholly or partly motivated to give notice by that fact.
Denial of natural justice
Ms Snook alleges that she was denied natural justice in the following respects:
Engaging in discussions with the Housing Authority representative prior to the connection of the video link on 13 January 2023
Ms Snook contends that she has been denied natural justice at the hearing on 13 January 2023 where Ms Snook appeared by way of video link and the Housing Authority representative appeared in person. Ms Snook refers to the transcript which reveals that the learned Magistrate engaged in some exchanges with the Housing Authority representative prior to the video link being established and says that this constitutes a denial of natural justice. The exchange is contained on pages 2 ‑ 4 and I have not set it out in full in these reasons.
Ms Snook refers to and relies on the decisions of Archer J in Re Magistrate T Darge; Ex parte Bajaj [2023] WASC 5 and Bajaj v Magistrate Trevor Darge [No 2] [2023] WASC 184. In these decisions, Archer J granted a review order requiring the decision‑maker to show cause in relation to two reasonably arguable cases of a failure to provide Mr Bajaj with natural justice, in the form of Mr Bajaj not being provided with correspondence and communications between another party and the court. However, Archer J declined to make a final review order.
I accept that if a court engages in correspondence or communications with one party to proceedings and does not provide the other party with a copy of those proceedings or the details of that communication, that this may amount to a denial of natural justice. However, it will depend on all the facts and circumstances of the case.
It was not appropriate for the learned Magistrate to engage in such a lengthy exchange with one party prior to the other joining the hearing. The learned Magistrate himself appears to refer to the need to wait for Ms Snook.[7] However, I do not consider it can be said that there is a reasonably arguable case that Ms Snook was denied natural justice as a result of this exchange. The discussion takes place whilst waiting for the video link connection. The content of the discussion is directed to asking the Housing Representative whether she had received the submissions and materials filed by Ms Snook, and upon being advised that the representative has not be provided with the material, providing an outline of the material to the representative. The Housing Authority representative does not make any submissions or appear to provide any additional information to the learned Magistrate. The exchange takes place on the first return date of Ms Snook's application and not at the Trial. Further, Ms Snook was provided with the transcript of this exchange prior to the Trial and so was aware of what occurred prior to that date and was able to make any submissions in response. Even if there had been a denial of natural justice, it was not in any way material to the decision made following the Trial.
Staying Ms Snook's application in 1470 of 2022
[7] ts 13 January 2023, 2.
Ms Snook also submits that she was denied natural justice in that she was not aware or informed that the learned Magistrate was considering staying her application 1470 of 2022, or that he did in fact say her application.
Having reviewed the transcripts, this issue was considered by the learned Magistrate at the hearing on 23 March 2023 and Ms Snook was given an opportunity to respond. The relevant parts of the transcript are at pages 6 ‑ 7 and I have not set them out in full. Orders were then issued by the Magistrates Court staying Ms Snook's application 1470 of 2022. However, at the next hearing on 26 April 2023, the learned Magistrate reversed that stay. I discuss this further below.
In those circumstances, I do not consider that there is a reasonably arguable case as to a denial of natural justice in relation to the stay ordered made by the learned Magistrate on 23 May 2023.
26 April 2023
Ms Snook submits that she was denied natural justice as the hearing on 26 April 2023 was held in her absence.
A review of the transcript for 26 April 2023 reveals that only Ms Snook's matter 1470 of 2022 was listed for hearing on 26 April 2023. The transcript reveals that only the representative from the Housing Authority was present and unsuccessful attempts were made to contact Ms Snook via the video link Microsoft Teams lobby and by telephone. The learned Magistrate then decided to proceed in Ms Snook's absence.[8] The transcript also refers to the hearing notice for the hearing on 26 April 2023 being sent by the court to Ms Snook's email address, although there is a reference to some form of email not being lodged correctly. It is unclear from the transcript what that is a reference to.[9]
[8] ts 26 April 2023, 2.
[9] ts 26 April 2023, 9.
The transcript reveals that Ms Snook has filed an application in matter 1470 of 2022 to 'dismiss, stay or adjourn the sine die trial [sic] set down on 29 June 2023' and that this application has been listed for 5 May 2023. There is also discussion about this application being filed on the wrong matter, as at the hearing on 23 March 2023 the learned Magistrate only set down the Housing Authority's application for trial and not Ms Snook's application.[10]
[10] ts 26 April 2023, 2 - 5.
The learned Magistrate then refers to receiving the correspondence from the Housing Authority:[11]
… suggesting that there was a potential inconsistent verdict issue with the various cases that are going before this court and the District Court, and staying one wouldn't help.
[11] ts 26 April 2023, 5.
The learned Magistrate then goes on to explain the reasons why he originally stayed Ms Snook's application, being:[12]
And in relation to 1470, I simply stayed that by way of explanation because when I read the reasons for her application, I formed the view that her reasons were related to the District Court proceedings and to matters that I couldn't take account of …
[12] ts 26 April 2023, 5.
The learned Magistrate then indicates that in light of the correspondence received from the Housing Authority, and reviewing Ms Snook's application again, he realised that he had overlooked that aspect of Ms Snook's application which sought to argue that the circumstances referred to in s 71(3)(b)(i) (being reason (e) in Ms Snook's application). In light of these matters, the learned Magistrate indicates that he will instead lift the stay previously ordered in relation to Ms Snook's application in so far as it concerns the matters referred to in reason (e) of the application and that it also be listed for trial on 29 June 2023 at the same time as the Housing Authority's application. The learned Magistrate also indicated that he would consider Ms Snook's application to stay the Trial at the hearing listed for 5 May 2023.
The next hearing was the hearing on 5 May 2023. The transcript reveals that during the course of this hearing, Ms Snook finds out about the hearing on 26 April 2023, and indicates that she was not aware of it and would have attended if she had been.[13] The learned Magistrate advises Ms Snook that a hearing notice was emailed to Ms Snook and the court attempted to call. Ms Snook responds:[14]
SNOOK, MS: Right. Sorry. I was really ill.
HIS HONOUR: Okay.
SNOOK, MS: And my phones were switched off most of the time. I had no idea that there was a hearing and I really apologise to the court. I have not even turned on the computer for some weeks. When I did, what had then happened is that somebody had sent me something on Messenger that – I knew the person really well and I stupidly clicked on it and I got what's called the Maori Warden malware. Because I didn't know I had a hearing and I was so ill. Until two days ago, I didn't get anything done about that malware and so I didn't switch on the computer or the phone with the win44sound [sic], which was the phone that the malware had been sent to.
[13] ts 5 May 2023, 5 - 6.
[14] ts 5 May 2023, 6.
The learned Magistrate then goes on to deal with Ms Snook's application for a stay of the Trial and refuses to grant a stay.
It is unfortunate that Ms Snook did not read the email sent by the court listing the matter for hearing on 26 April 2023 and therefore was not in attendance. However, in all the circumstances I do not consider that there is a reasonably arguable case that Ms Snook's non‑attendance resulted in a material denial of natural justice.
Ms Snook was served with the hearing notice by the court to her email address. It appears that Ms Snook had not read her emails (whether because of malware or because she had been ill). The hearing was not the Trial. The events which took place in Ms Snook's absence resulted in the previous stay on her application (of which Ms Snook says she was unaware) being lifted and her application being listed for trial on 29 June 2023 (which is what Ms Snook thought had already occurred). Further, there was no determination of Ms Snook's application for a stay of the Trial in her absence. Rather, this was considered by the learned Magistrate at the hearing on 5 May 2023.
Allowing the trial to go ahead on 29 June 2023 and for allowing the trial to continue until 6.30 pm
Ms Snook contends that the holding of Trial resulted in a denial of natural justice given her various medical and health issues; her lack of sleep; the fact that she had been expecting legal assistance and the fact that the Trial went until 6.30 pm. Ms Snook also submitted that there was, to the best of her memory, no break during the day of the Trial other than the morning break for her to consider an offer from the Housing Authority.[15]
[15] ts 28 September 2023, 48 - 49.
I do not accept that there is a reasonably arguable case that Ms Snook was denied natural justice in the manner contended.
Ms Snook had more than sufficient notice of the hearing and more than sufficient time to prepare for the Trial. Ms Snook's application was made on 24 November 2022 and the Housing Authority's application was made on 30 January 2023. Matter 111 of 2023 was listed for trial on 23 March 2023. Whilst matter 1470 of 2022 was not actually listed for trial until 26 April 2023, Ms Snook believed that it had been listed on 23 March 2023. Ms Snook's application for a stay or adjournment of the Trial sine die was refused on 5 May 2023. Given, the requirement in the RT Act that matters be dealt with in 14 days (or otherwise as expeditiously as possible), this is more than generous in terms of providing Ms Snook with sufficient time to prepare.
Turning to the events of 29 June 2023, the trial was due to commence at 10.30 am, but started at 10.52 am when Ms Snook was late (having advised the court ahead of the start time).[16] The learned Magistrate questioned the parties as to whether there was any basis for a resolution by settlement or agreement. There was then some discussion about an offer being made by the Housing Authority representative to provide Ms Snook with an additional 45 days to vacate the premises. There was also some confusion as to whether Solomon J had issued an injunction in relation to the trial the previous day. There was then an adjournment of over one hour to enable Ms Snook to consider the offer and attempt to obtain legal advice regarding it and for the court to clarify any orders from the Supreme Court.[17] After the adjournment, Ms Snook indicated she was not willing to accept the offer and the court had been able to clarify that Solomon J had dismissed Ms Snook's application for an injunction.
[16] ts 12 July 2023, 4.
[17] ts 12 July 2023, 5.
The opening statements and calling of evidence did not actually commence until around 2.30 pm[18] that afternoon. In the period of time after the morning adjournment and up until the commencement of the trial Ms Snook spent a considerable amount of time engaging in submissions and exchanges with the learned Magistrate about a wide range of largely procedural matters or matters that were not relevant, had previously been the subject of exchanges and which were often repetitive and circular.
[18] ts 29 June 2023, 66.
When the trial actually commenced, the learned Magistrate attempted to impose time limits on the various witnesses and parties' addresses in order to conclude the Trial by the end of the day. However, when it became clear that Ms Snook was having difficulty meeting those time limits, the learned Magistrate allowed Ms Snook more time. The Trial then concluded at 6.24 pm.
It is clear from reading the transcript that the learned Magistrate was aware of Ms Snook's health issues, that she had limited sleep the night before due to her injunction application and that Ms Snook had a health issue with one of her dogs. In response, the learned Magistrate allowed Ms Snook to sit instead of stand during the day if she wished.[19]
[19] See by way of example ts 29 June 2023, 2 ‑ 3, 179, 188.
It is also clear from reading the transcript that breaks did take place during the day. There was the morning adjournment of over one hour and lunch was taken at the usual time.[20] In the afternoon session, Ms Snook requested a short comfort break, and one was held.[21]
[20] ts 29 June 2023, 41.
[21] ts 29 June 2023, 189, 192 - 193.
Finally, whilst Ms Snook made references to expecting legal assistance, the Submissions Documents expressly disavows any submission that she was expecting lawyers to appear at the Trial. Rather, [69] of the Submissions Document refers to expecting lawyers to assist in applying for an adjournment of the Trial (which had already been refused on 5 May 2023). For completeness, neither party was legally represented during the trial, as is usual in these matters. Given the length of time Ms Snook had to prepare, and the nature of the relevant issues, I do not consider this is basis for a reasonably arguable case of a denial of natural justice.
Therefore, in all the circumstances, I do not consider that there is a reasonably arguable case in relation to a denial of natural justice based on the listing of the Trial for 29 June 2023 or its continuation and conduct on that date.
Not receiving copies of documents
Ms Snook submits that she was denied natural justice in not being provided with a copy of the following documents: the Housing Authority's application made under s 71 of the RT Act dated 30 January 2023; correspondence sent by the Housing Authority to the court and referred to at the hearing on 26 April 2023; and the witness statements filed and relied on by the Housing Authority at the Trial.
Housing Authority application
It became apparent during the hearing on 5 May 2023 that Ms Snook had not received a copy of the Housing Authority's application in 111 of 2023 dated 30 January 2023. Ms Snook submits that she does not know what the application says or whether it was filed with an affidavit that she may need to respond to.
Although both matters had been identified and discussed at the hearings on 23 February 2023[22] and 23 March 2023,[23] from a review of all of the transcripts as a whole, Ms Snook does not appear to have appreciated prior to 5 May 2023 that there were two matters before the court (111 of 2023 and 1470 of 2022). I can conceive how Ms Snook may have been confused if she had not received a copy of the application and given the almost complete overlap in terms of facts and legal issues in the two applications, and given the number of other court matters she is involved in. Against this backdrop, I accept that Ms Snook may have not have fully understood the references made by the learned Magistrate to the two proceedings at these earlier hearings. However, they were called by the JSO and referred to by the learned Magistrate and the Housing Authority representative during the course of each hearing.
[22] ts 23 February 2023, 6.
[23] ts 23 March 2023, 6 - 7, 12.
The transcripts of 5 May 2023[24] and the Trial[25] reveal that the court sent Ms Snook a copy of the Housing Authority application by post to her address in Beldon. Ms Snook responds by stating that she has had trouble with the mail at that address.[26] However, it appears that other documents seem to have arrived at that address.[27] Therefore, this is not a case of service not being undertaken at all, but rather a case of Ms Snook being served by post as required, but for some reason not receiving this particular document.
[24] ts 5 May 223, 3.
[25] ts 29 June 2023, 23 - 24.
[26] ts 5 May 2023, 3.
[27] ts 29 June 2023, 23 - 24.
Although in her oral submissions before this court Ms Snook submitted that she has still never received a copy of the Housing Authority's application,[28] the transcript of the Trial reveals that Ms Snook was provided with a copy of the application (although it is not clear precisely when) but maintained that it had not been properly served.[29]
[28] ts 28 September 2023, 38.
[29] ts 29 June 2023, 23.
My chambers arranged to obtain a copy of the application. I observe that there is no accompanying affidavit and the application simply provides the following reasons:
Tenant has not vacated by date of vacant possession of 23 January 2023 note don Form 1C Notice of Termination issued 7 November 2022.
I also note that there is no reference in the transcript for the Trial to any affidavit being tendered or referred to at the Trial. It is also clear from the transcripts of 5 May 2023 and the Trial, that by the time of the Trial, Ms Snook was fully aware of the Housing Authority's application and the issues she would need to address (which overlap almost completely with the issues raised by her own application).
In these circumstances, I do not consider the failure of Ms Snook to have received a copy of the application prior to the 5 May 2023 hearing raises a reasonably arguable case of a material denial of natural justice.
Correspondence with court
Ms Snook submits that she has been denied natural justice because she was not and has not been provided with a copy of the correspondence from the Housing Authority that was referred to at the hearing on 26 April 2023.
From my review of the transcript from 26 April 2023, it appears that this correspondence from the Housing Authority was requesting that both matters be heard together and was questioning the decision of the learned Magistrate made on the previous hearing on 23 March 2023 to stay Ms Snook's application on the basis that it was concerned with the District Court proceedings.
The outcome of the hearing on 26 April 2023 was that the learned Magistrate reversed his decision in relation to the stay he imposed on Ms Snook's application and listed it for trial on 29 June 2023 for hearing together with the Housing Authority's application. The transcript reveals that the learned Magistrate reversed the stay only in so far as it related to reason (e) of Ms Snook's application. However, a review of the transcript of the Trial and the Reasons, reveal that the learned Magistrate nonetheless did consider Ms Snook's contentions regarding her actions taken to purchase the property, but the learned Magistrate dismissed these as not being relevant for the purposes of the exercise of his discretion under s 71(3)(b)(ii) of the RT Act.
There is no reference to the correspondence being tendered at the Trial or in any way referred to or relied on at the Trial or in the Reasons.
In these circumstances, I do not consider that there is a reasonably arguable case that any denial of natural justice in not being provided with a copy of the Housing Authority correspondence is any way material to the decision of the learned Magistrate in this matter.
Witness Statements
Ms Snook contends that she did not receive copies of the Form 32A witness statements for the two Housing Authority witnesses at the trial, Mr Nairn and Mr Pynes.
Ms Snook has not put on any affidavit evidence in support of this contention. A review of the transcript from the Trial reveals that the following exchange took place in the morning session on 29 June 2023:[30]
HIS HONOUR: And, now, you said that you've – that things have got wet. Would you like another copy of the – Mr Nairn's statement and Mr Pynes' statement?
SNOOK, MS: I haven't – I've never read them.
[30] ts 29 June 2023, 29.
Spare copies were then provided to Ms Snook.[31] Ms Snook then proceeded to cross examine both Housing Authority witnesses and make her case in both matters.
[31] ts 29 June 2023, 29.
The Trial transcript also reveals that Ms Snook says that she had massive floods in her house in early June which destroyed all of her records, the phone and dampened the computer.[32]
[32] ts 29 June 2023, 9.
Further, the Housing Authority witness, Mr Nairn, gave the following evidence in relation to the Form 32A witness statements:[33]
HIS HONOUR: - - - that? And in relation to your form 32A witness statement and the witness statement of John Pynes, what did you do with those - - -
NAIRN, MR: Those - - -
HIS HONOUR: - - - documents?
NAIRN, MR: Those documents were emailed to Ms Snook by myself on 20 April, sir, after they were lodged and sealed with the courts. And then on 5 May, Ms Snook was in court and – I think it was 5 May. And she said that she had not received them, and I posted another copy out the next day, sir.
HIS HONOUR: And where did you post them to?
NAIRN, MR: To 4 Gambia Way.
SNOOK, MS: No, you didn't.
[33] ts 29 June 2023, 71.
On 5 May 2023, the Housing Authority representative confirms that the witness statements had been served on Ms Snook by email to her email address.[34] The date ordered for the filing and serving of these statements was 20 April 2023 and based on the transcript from the hearing on 5 May 2023, they had been filed and served prior to 5 May 2023.
[34] ts 5 May 2023, 27 - 28.
I do not have before me a copy of the witness statements.
In the Submissions Document Ms Snook submits that she had not received the witness statements.[35]
[35] Submissions Document [110].
The lack of any affidavit evidence by Ms Snook in relation to this issue is unhelpful. Based on the information before me, Ms Snook's precise position in relation to the Form 32A witness statements is unclear. It is unclear if Ms Snook is saying she never received the witness statements; or that she never checked her emails; or that she received the statements, but they were destroyed in the floods; or that she received but did not read the statements.
However, I am of the view that on the basis of the material contained in the Trial transcript and the documents before me Ms Snook has established a reasonably arguable case that she had not received the Form 32A witness statements prior to the Trial. As these documents were relied on by Housing Authority at trial, I am satisfied that Ms Snook has established a reasonably arguable case that she was denied natural justice in not receiving copies before trial.
Jurisdictional error
In addition to the grounds of denial of natural justice, Ms Snook submits that the learned Magistrate misdirected himself or misunderstood the nature of his jurisdiction or failed to take into account relevant material in the following respects.
Asking the incorrect question regarding s 71(3)(b)(i) / utility
Ms Snook submits that the learned Magistrate misdirected himself and applied the wrong test in relation to s 71(3)(b)(i) of the RT Act.
Having reviewed the various transcripts I am of the view that there is a reasonably arguable case that the learned Magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act and therefore was under a misapprehension as to the nature of his functions or powers in the following respect (in a manner which is slightly different to that advanced by Ms Snook).
The text of s 71(3)(b)(i) provides a magistrate who is otherwise satisfied of the relevant matters in s 71(2) with a discretionary power to refuse to make an order terminating a tenancy agreement if satisfied that the lessor was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce his rights as a tenant.
There is no requirement in s 71(3)(b)(i) that this motive be demonstrated by facts occurring within the period of six months prior to the termination notice being issued. On its face, s 71(3)(b)(i) permits a tenant to lead evidence of facts over any period of time and invite the magistrate to be satisfied of the relevant motive, and to then exercise their discretion to refuse to terminate the tenancy agreement.
The relevance of the six month time period is limited to the reversal of the onus of proof contained in s 71(4) of the RT Act. That is, in order to reverse the onus of proof, a tenant must lead evidence that within the six month period before notice was given by the lessor, the tenant complained to a public authority or took steps to secure or enforce the tenant's rights as a tenant.
On the face of the Reasons, the learned Magistrate has outlined the operation of s 71(3)(b)(i) consistently with its text.[36] The learned Magistrate then considers some of the case law in relation to this section and then turns to the onus of proof. The learned Magistrate correctly outlines the requirements of s 71(4) and goes on to then consider the evidence in relation to this question and concludes that Ms Snook bears the onus of proof.[37] The learned Magistrate then sets out his consideration of the evidence led in this regard, before concluding that he is not satisfied that the Housing Authority was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce her rights as a tenant.[38]
[36] ts 12 July 2023, 8.
[37] ts 12 July 2023, 9 - 10.
[38] ts 12 July 2023, 10 - 12.
In considering that evidence and the question of motive, the learned Magistrate then does not appear to state that he is to limit the time period in which that evidence must have occurred. However, during the Trial, the learned Magistrate appears to direct Ms Snook that she could only ask questions in cross examination of the Housing Authority witnesses or give evidence about what happened in the last six months on the basis that this is the only time period in which the Housing Authority's motive is relevant. See for example the exchanges at pages 151 – 154, 161, 165, 204 ‑ 205 and 211 ‑ 212 of the transcript of the Trial. I also note in his Reasons, the learned Magistrate does not go on to consider all of facts relied on by Ms Snook in relation to motive, some of which (from the Trial Transcript) appear to be outside the six month time period (although I accept that Ms Snook's evidence and cross examination is at times difficult to follow).
In my view, these exchanges in the transcript from the Trial, coupled with the lack of reference to some of the matters raised by Ms Snook in the Reasons, establish a reasonably arguable case that the learned Magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act in terms of the period of time within which the question of motive might be considered. There is a reasonably arguable case that this misdirection resulted in the learned Magistrate being under a misapprehension as to the nature of his functions or powers and not considering all of the evidence from Ms Snook in relation to motive.
After concluding that he is not satisfied of the requisite motive, the learned Magistrate then concludes that even if he is wrong in that regard, he would still exercise his discretion to order the termination of the tenancy agreement, because:[39]
On the face of it, there seems no utility in continuing with this tenancy where, on the face of it, the premises are deteriorating and, for whatever reason between tenant and landlord, there is no meeting of minds on the repairs to the premises.
[39] ts 12 July 2023, 13.
Ms Snook submits that there is no reference in s 71(3)(b)(i) of the RT Act as to the utility of the tenancy agreement continuing and therefore submits that the learned Magistrate has asked himself the wrong question.
I accept that s 71(3)(b)(i) does not refer to the concept of utility. However, I note that the reference to 'utility' arises in the context of the learned Magistrate assuming that even if Ms Snook had been able to establish the requisite motive, that in the exercise of his discretion he would not order the termination of the tenancy agreement. Understood in this light, the reference to utility is a reference to a matter the learned Magistrate has considered in the exercise of his discretion. Whether the concept of utility is relevant to the learned Magistrate's consideration of s 71(3)(b)(i) is a matter of statutory construction.
However, I understand that Ms Snook further submits that by asking himself the wrong question in relation to utility, the learned Magistrate then misdirected himself by not weighing all material relevant to the exercise of his discretion.
I consider that the ground raised by Ms Snook in relation to utility is closely associated with and forms part of the reasonably arguable case I have referred to above regarding whether the learned Magistrate has misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act.
Finally, I note that Ms Snook also submits that if the question of utility is relevant to the exercise of the discretion, then she was denied natural justice in that utility is not referred to in s 71(3)(b)(i) of the RT Act and the learned Magistrate did not indicate that it was a matter upon which he might rely in reaching his decision. Ms Snook submits that had she been aware of this, she would have made submissions on the issue. I accept that the question of utility does not appear to have been referred to by the learned Magistrate during the trial and Ms Snook did not make submissions on this topic. In light of my conclusion regarding whether the learned Magistrate has misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act, I am satisfied that a reasonably arguable case exists in relation to this aspect of Ms Snook's ground.
Relying on Malley
Ms Snook also submits that the learned Magistrate made a jurisdictional error in relying on the decision of Le Miere J in Re Magistrate Steven Malley; Ex Parte The Housing Authority [2017] WASC 193, in so far as that decision considered and explained the meaning of the terms 'motivation' and 'steps taken' in s 71(3)(b)(i) of the RT Act. Ms Snook's submission is concerned with the correctness of the decision of Le Miere J. As best I can discern, the basis of Ms Snook's challenge is to the correctness of the decision, is that it makes it impossible for a tenant to demonstrate the requisite motivation.
I do not accept such a broad proposition. The question of establishing motivation for the purposes of s 71(3)(b)(i) involves the placing before the relevant magistrate evidence of facts from which the magistrate is invited to draw a conclusion as to the motive of the lessor. Le Miere J also considered whether particular steps taken in that case by a tenant in defending earlier termination proceedings constituted steps taken to 'secure or enforce his rights as a tenant' for the purposes of s 71(3)(b)(i) of the RT Act, and concluded that as matter of statutory construction they did not.
Ms Snook does not identify any legal basis upon which she says the decision of Le Miere J is incorrect, other than it will make it difficult for tenants facing a no‑fault termination to demonstrate motive. Absent the identification of some legal error in the decision of Le Miere J, I do not consider that the ground gives rise to a reasonably arguable case of jurisdictional error.
Ms Snook also submits that the decision in Re Magistrate Steven Malley; Ex Parte The Housing Authority has been superseded by the decision in Re Magistrate Raelene Natasha Johnston; Ex Parte Wallam [2017] WASC 226. A review of these decisions reveals that this is not the case, and that nothing in Re Magistrate Raelene Natasha Johnston; Ex Parte Wallam alters the conclusions reached by Le Miere J in Re Magistrate Steven Malley; Ex Parte The Housing Authority.
No evidence to support the Housing Authority's case in relation to motive
Ms Snook submits that the Housing Authority did not lead any documentary evidence to support the evidence given by Mr John Pynes both orally and in his witness statement as to the motive of the Housing Authority in issuing the termination notice.
Ms Snook relies on the conclusions of Solomon J in Snook v Roberts [2022] WASC 196, where his Honour found that there was no evidence before the magistrate at all in relation to the relevant jurisdictional facts in s 71(2) of the RT Act in that case, and therefore no evidence on which the learned Magistrate in that case could be so satisfied of the relevant jurisdictional facts.
In the present case, there was evidence before the learned Magistrate as to the jurisdictional facts referred to in s 71(2) of the RT Act.[40] There was also evidence before the learned Magistrate as to Housing Authority's motive in relation to issuing the termination notice, being the oral and written evidence of Mr Pynes and Mr Nairn. Whether the learned Magistrate accepted that evidence and if so, the weight he gave to that evidence (including in the absence of any supporting documentation), was a matter for the learned Magistrate. Any error in that regard is an error within jurisdiction and not a jurisdictional error.
Failed to consider social housing and whether s 64 applies to social housing
[40] ts 12 July 2023, 7 - 8.
Ms Snook raises a further issue as to whether s 64 of the RT Act applies to a tenancy agreement in circumstances where the Housing Authority is the landlord. Ms Snook makes submissions that appear to be directed to the unfairness and appropriateness of a social housing provider utilising the so‑called no‑fault termination clause.
I do not consider that Ms Snook has demonstrated a reasonably arguable case in this regard.
Section 64 provides that a 'lessor' may give notice of termination. The reference to the term 'lessor' is included in s 60 and all of the relevant provisions regarding termination in pt V div 1 of the RT Act. The term 'lessor' is defined in s 3 as:
lessor —
(a) means a person who grants the right to occupy residential premises under a residential tenancy agreement; and
(b) includes —
(i) a personal representative, successor or assignee of a lessor; and
(ii) where the context requires, a prospective, or former, lessor;
This definition is sufficiently broad to include the Housing Authority.
Pt V div 3 of the RT Act contains specific provisions relating to social housing providers (which is defined to include the Housing Authority) and social housing tenancy agreements, including specific bases upon which a social housing provider may seek to terminate a social housing tenancy agreement. However, s 71B expressly provides that:
This Division does not limit the operation of the other provisions of this Part in relation to residential tenancy agreements that are social housing tenancy agreements.
Accordingly, the clear and plain reading of the text of s 64 of the RT Act and the broader context does not support Ms Snook's submission.
Further, this question was addressed by Le Miere J in Re Magistrate Steven Malley; Ex Parte The Housing Authority [34] where Le Miere J concluded that the provisions in pt V of the RT Act apply to private lessors as well as the Housing Authority. Ms Snook has not raised any matters addressing the legal correctness of the above interpretation of the RT Act, as distinct from matters of policy as to why (Ms Snook submits) the Housing Authority should not be able to rely on the no breach termination provisions in s 64 of the RT Act. These are not matters sufficient to give rise to a reasonably arguable case of jurisdictional error.
Granting/ failing to grant a stay
Ms Snook makes two contentions in relation to stays.
First, Ms Snook submits that the learned Magistrate erred in lifting the stay of her application in circumstances where, Ms Snook submits, there is no evidence in any court documents or transcripts that the learned Magistrate ever ordered the stay in the first place. As outlined earlier in these reasons, this is not correct. The learned Magistrate stayed Ms Snook's application at the hearing on 23 March 2023[41] and then lifted it (in relation to item (e) of the reasons) at the hearing on 26 April 2023. Accordingly, no jurisdictional error is identified in relation to this contention.
[41] ts 23 March 2023, 6 - 7.
Secondly, Ms Snook submits that the learned Magistrate made a jurisdictional error in failing to grant her a stay of the Trial pending the conclusion of the District Court proceedings. Ms Snook submits that the learned Magistrate says in the later transcripts (several times) that he could not grant a stay. However, no transcript references have been provided. Ms Snook says that this an error as the learned Magistrate had the jurisdiction to grant a stay pursuant to s 16(c) of the Magistrates Court (Civil Proceedings) Act.
I do not consider a jurisdictional error is revealed. The learned Magistrate did not misdirect himself. The learned Magistrate heard Ms Snook's application for a stay of the Trial on 5 May 2023 and dismissed the application for the reasons set out in the transcript. Those reasons did not include that he did not have the power to order a stay. To the extent Ms Snook seeks to challenge the correctness of the decision to refuse to grant a stay, that goes to the merits of the decision and any error of fact would be an error within jurisdiction. I therefore do not consider that there is a reasonably arguable case that a jurisdictional error was made in relation to issues concerning a stay.
Bias / predetermining outcome
During the hearing on 28 September 2023, Ms Snook indicated that whilst she could run a case of bias as against the learned Magistrate, that she was choosing not to.[42]
[42] ts 28 September 2023, 22 - 24.
However, in the additional submissions emailed to my chambers on 2 October 2023, Ms Snook does raise the question of bias on the part of the learned Magistrate. As I understand Ms Snook's submissions, Ms Snook says that first the learned Magistrate demonstrated apprehended bias at and after the hearing on 26 April 2023 (which was conducted in her absence). Ms Snook submits that prior to this hearing, the learned Magistrate:
… believes that, indeed, I was purchasing the house, and indicates that he does not want to duplicate hearings, or waste his court's time, if that was the case. After receiving the correspondence from the Department, he refers to in the hearing of 26 April, magistrate Darge races to trial, and would not consider any applications to halt it …
I do not consider the material establishes a reasonably arguable case in this regard. A review of the transcripts does not support Ms Snook's submissions. The Housing Authority's matter had already been set down for the Trial at the hearing on 23 March 2023. The programming orders had already been made. What occurred on 26 April 2023 was to lift the stay on Ms Snook's application and also list that matter for trial (in two months' time). Accordingly, there was no race to trial as submitted by Ms Snook.
Further, the learned Magistrate did consider Ms Snook's application to stay the Trial at the hearing on 5 May 2023. The fact that Ms Snook disagrees with the learned Magistrate's conclusion in relation to that application is not sufficient to lead to a reasonably arguable case of jurisdictional error.
Secondly, Ms Snook appears to submit that the learned Magistrate had pre‑determined the outcome of her application under s 64 of the RT Act. In her submissions emailed to my chambers on 2 October 2023, Ms Snook states that:
There are a number of comments which His Honour makes on transcripts, showing that he had pre-determined the outcome.
However, Ms Snook does not go on to identify those references. This is a serious allegation and one which, if Ms Snook wishes to make it, ought be supported by evidence or references. The alleged comments are not obvious to me from my review of the transcripts. I do not consider the material establishes a reasonably arguable case in this regard.
Conclusion
Having considered the various matters raised by Ms Snook, I have concluded that Ms Snook has demonstrated a reasonably arguable case in relation to the following grounds only:
(1)That the learned Magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act in terms of the period of time within which the question of motive might be considered, and therefore was under a misapprehension as to the nature of his functions or powers.
(2)That the learned Magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act and took into account an irrelevant consideration by having regard to the question of the 'utility' of the residential tenancy agreement, and therefore was under a misapprehension as to the nature of his functions or powers.
(3)That the learned Magistrate denied Ms Snook natural justice by failing to inform Ms Snook that he would, in the exercise of his discretion, consider the question of the utility of the residential tenancy agreement and provide Ms Snook with an opportunity to make submissions.
(4)That Ms Snook was denied natural justice on the basis that she had not received the Housing Authority's Form 32A witness statements prior to the trial.
I do not consider that there is a reasonably arguable case in relation to the remainder of Ms Snook's grounds.
I will therefore make a review order pursuant to s 36 of the MC Act requiring the learned Magistrate and the Housing Authority to satisfy the court that the decision made on 12 July 2023 should not be set aside on the above grounds only and otherwise dismiss Ms Snook's application.
I will also order a stay of the learned Magistrate's decision and the Property (Seizure and Delivery) Order dated 13 September 2023 until further order of the court pursuant to O 56A r 3(3)(d) of the RSC. I have exercised my discretion to order a stay as the date specified by the learned Magistrate for Ms Snook to provide vacant possession has passed. The Housing Authority has since taken enforcement action in the form of obtaining a Property (Seizure and Delivery) Order. The order of Registrar Watroba made on 19 September 2023 stays that enforcement action until 6 October 2023. In the event that this enforcement action proceeds pending the resolution of the final review order, Ms Snook's review application may be rendered nugatory. I am therefore satisfied that there are special circumstances sufficient to satisfy me that it is just and reasonable to order a stay so as to preserve the subject matter and integrity of the review order application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to Justice Seaward
5 OCTOBER 2023
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