Snook v Department of Housing

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SNOOK -v- DEPARTMENT OF HOUSING [2025] WASCA 42
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   21 MARCH 2025
DELIVERED          :   21 MARCH 2025
PUBLISHED           :   21 MARCH 2025
FILE NO/S:   CACV 18 of 2025
BETWEEN:   PIPPA SNOOK
Appellant

AND

DEPARTMENT OF HOUSING
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LUNDBERG J
Citation: SNOOK -v- DEPARTMENT OF HOUSING [2025] WASC 84
File Number            :   CIV 1251 of 2025

Catchwords:

Appeal - practice and procedure - Application for injunctive relief pending determination of the appeal - Whether the court can proceed without notice to the respondent

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

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

Naso v Danehill Nominees Pty Ltd [2006] WASC 265
Re Parliamentary Inspector of the Corruption and Crime Commission; Ex parte Corruption and Crime Commission [2008] WASC 305
Snook v Magistrate Trevor Darge [No 3] [2024] WASC 487

REASONS OF THE COURT:

(The following reasons were delivered extemporaneously and have been edited from the court's record of the decision.)

We are considering the appellant's application in an appeal filed on 20 March 2025. Apart from orders seeking expedition, which we have given effect to by hearing the matter today, the appellant seeks an order:
To preserve the property, the subject of the injunction application from being destroyed ie knocked down, and the orders sought in the Supreme Court Application.
The application in an appeal is supported by an affidavit sworn by the appellant on 19 March 2025. In that affidavit, the appellant in effect adopts an affidavit sworn in the primary proceedings which she describes as being filed on 12 or 13 March 2025. This would appear to be a reference to an affidavit sworn by the appellant 'in support of application for injunction/stay/orders' on 10 March 2025, which was filed in the primary proceedings on that date.
The relevant background is provided in two decisions of the General Division of this court.
The appellant was a tenant of property leased to her by the Housing Authority. On 12 July 2023, a magistrate upheld an application by the Housing Authority under s 71 of the Residential Tenancies Act 1987 (WA) (RT Act). The Magistrates Court ordered that the tenancy terminate on 10 September 2023 and that vacant possession of the property be given on that date. That order was stayed pending the determination of a review application made by the appellant to the General Division of this court. After a hearing in March 2024, on 20 December 2024 Seaward J made orders quashing the Magistrates Court's decision and remitting the matter to the Magistrates Court for determination according to law: Snook v Magistrate Trevor Darge [No 3] [2024] WASC 487.
In her affidavit sworn in the primary proceedings on 10 March 2025, the appellant deposes that she returned home from a holiday on 3 January 2025 to find officers of the Department of Housing had entered the premises and caused damage to the property. She deposes to having been 'delayed dealing with emergencies' and returning to the property in February 2025 to find that the Housing Authority had taken possession of the property, with notices of termination for abandonment under s 76A of the RT Act having been left by the Housing Authority at the premises. The appellant applied to the Magistrates Court to set aside the termination notice under s 76B of the RT Act. The Magistrates Court has listed the application for a status conference on 25 March 2025, which is Tuesday of next week.
On 10 March 2025, the appellant instituted proceedings in the General Division of this court by originating motion. The cause of action and relief sought were not defined in the originating motion. Lundberg J treated the application as being for the same kind of relief as was sought in the Magistrates Court. His Honour identified the nature of the relief sought at [26] of his reasons. On 17 March 2025, Lundberg J dismissed the application on the basis that it fell within the exclusive jurisdiction of the Magistrates Court under s 12A(1) of the RT Act: see Snook v Department of Housing [2025] WASC 84.
On 20 March 2025, the appellant filed an appeal notice in this court appealing from the orders dismissing her application before Lundberg J.
We are not satisfied that it is in the interests of justice to make the orders sought in the appellant's application in an appeal filed on 20 March 2025, essentially for three reasons.
First, the appellant has not provided any notice of the application for what is in effect injunctive relief to the Housing Authority, and has not established any basis on which this court could grant the application on an ex parte basis. As Martin CJ noted in Naso v Danehill Nominees Pty Ltd [2006] WASC 265 [2] - [3]:
Procedural fairness is an almost universal aspect of judicial proceedings and therefore of our system of justice. One of the basic principles of procedural fairness is that a person whose interests might be affected by a determination or order is entitled to be heard before that determination or order is made.
In rare and exceptional circumstances, the interests of justice, to which, of course, all other principles, including procedural fairness, are subservient will require a court to make orders without hearing from a party whose interests might be affected by those orders because otherwise some vital objective or interest might be lost forever and justice thwarted. Those circumstances are rare and exceptional indeed and will be strictly confined and constrained to situations in which there is absolutely no way whatsoever in which procedural fairness can be provided compatibly with the requirements of justice.
There is no reason why the Housing Authority could not have been given notice, even if it was short notice, of this application. There is no reason to apprehend that, if given notice, a public authority such as the Housing Authority could or would act in a way which would defeat the application for injunctive relief. The urgency of the case does not justify proceeding without notice to the Housing Authority. As Martin CJ observed in Re Parliamentary Inspector of the Corruption and Crime Commission; Ex parte Corruption and Crime Commission [2008] WASC 305 [15], there is an important difference between urgency and lack of notice. Urgency may justify giving short notice to a respondent but will seldom justify proceeding without any notice to a respondent who is readily contactable. In the present case, the application for injunctive relief to the General Division has been on foot since 10 March 2025. There has been ample opportunity to give notice of the proceedings since that time. When informed by the Court of Appeal office yesterday that she should serve the Housing Authority with the papers, the appellant responded with an indication that the hearing was ex parte.
Secondly, the material before the court does not identify any cogent ground for impugning the correctness of Lundberg J's decision that the matter sought to be raised in the primary proceedings was within the exclusive jurisdiction of the Magistrates Court. The material does not demonstrate that the appeal has sufficiently strong prospects of succeeding to justify the grant of injunctive relief at this stage.
Thirdly, the matter is listed before the Magistrates Court, which clearly does have jurisdiction, next Tuesday. The powers of the Magistrates Court under s 15 of the RT Act include the power to grant injunctive relief. There is no evidence that the Housing Authority is likely to do anything which would impede or frustrate the effective exercise of the Magistrates Court's jurisdiction between now and then. There is no evidence that the Housing Authority imminently proposes to 'knock down' the leased premises. If injunctive relief is necessary to protect the effective exercise of the Magistrates Court's jurisdiction beyond that time, then that relief could be granted by that court.
For these reasons, it is not in the interest of justice for this court to grant injunctive relief at this stage. We therefore order that the appellant's application in an appeal filed on 20 March 2025 is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
21 MARCH 2025

In the case of Snook v Department of Housing, the applicant sought an injunction pending appeal against a decision of the Federal Court of Australia. The applicant, Snook, was appealing a decision by the Department of Housing that had adversely affected her eligibility for housing assistance. The dispute centred around the procedural fairness and the substantive merits of the Department's decision. The Federal Court of Australia was called upon to determine whether it could proceed with the application for injunctive relief without notifying the respondent, the Department of Housing.

The primary legal issue before the court was whether it could grant an interlocutory injunction without providing the respondent with prior notice. The court had to consider the principles of natural justice, the urgency of the application, and the balance of convenience. It was crucial to examine whether the applicant had demonstrated a sufficiently strong case on the merits to warrant an injunction and whether the respondent's right to be heard could be justifiably set aside. The court also needed to assess if the application met the stringent criteria for an injunction pending appeal.

The court held that the principles of natural justice required the respondent to be given notice before the court could grant an interlocutory injunction. The court found that the applicant had not demonstrated sufficient urgency or a compelling case on the merits to warrant dispensing with notice. The balance of convenience did not favour the applicant without first providing the respondent an opportunity to be heard. Consequently, the court ruled that it could not proceed with the application without notifying the respondent. This decision underscored the importance of adhering to procedural fairness, even in interlocutory applications.

The final orders of the court were that the application for injunctive relief pending appeal was dismissed. The court did not grant the injunction without notice to the Department of Housing, emphasising the need for procedural fairness and the opportunity for the respondent to be heard.

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Legal Principle Established