SNOOK -v- LAWRENCE [2007] WASC 111

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 111
Case No:	CIV:2362/2006	Heard:	20 MARCH 2007
Coram:	SIMMONDS J	Delivered:	17/05/07
No of pages:	16	Judgment Part:	1 of 1
Result:	Order for application for review to be heard by a Judge in chambers Copies of application and affidavits to be served as directed and then application to be re-listed for further directions Order to stay execution of order for vacant possession Liberty to apply
Category:	B
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Parties:	PIPPA SNOOK ROBERT LAWRENCE
Catchwords:	Magistrates Application for order nisi for writ of certiorari Treated as application for review order under Magistrates Court Act 2004 (WA), s 36 Residential Tenancies Act 1987 (WA), s 26 Natural justice Stay of execution of order for vacant possession
Legislation:	Magistrates Court Act 2004 (WA), s 35, s 36 Residential Tenancies Act 1987 (WA), s 26 Rules of the Supreme Court 1971 (WA), O 56, O 56A
Case References:	De Alwis v Department of Housing and Works [2006] WASC 14 Re Burton; ex parte Rowell [2006] WASC 277 Stampalia v The Stewards of the Western Australian Trotting Association [1999] WASC 7 Zucal v Harper (2005) 29 WAR 563

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SNOOK -v- LAWRENCE [2007] WASC 111 CORAM : SIMMONDS J HEARD : 20 MARCH 2007 DELIVERED : 17 MAY 2007 FILE NO/S : CIV 2362 of 2006 BETWEEN : PIPPA SNOOK

Plaintiff

AND

ROBERT LAWRENCE

Respondent

Catchwords:

Magistrates - Application for order nisi for writ of certiorari - Treated as application for review order under Magistrates Court Act 2004 (WA), s 36 - Residential Tenancies Act 1987 (WA), s 26 - Natural justice - Stay of execution of order for vacant possession

Legislation:

Magistrates Court Act 2004 (WA), s 35, s 36

Residential Tenancies Act 1987 (WA), s 26
Rules of the Supreme Court 1971 (WA), O 56, O 56A

(Page 2)

Result:

Order for application for review to be heard by a Judge in chambers

Copies of application and affidavits to be served as directed and then application to be re-listed for further directions
Order to stay execution of order for vacant possession
Liberty to apply

Category: B

Representation:

Counsel:

Plaintiff : In person

Respondent : No appearance

Solicitors:

Plaintiff : In person

Respondent : No appearance

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

De Alwis v Department of Housing and Works [2006] WASC 14
Re Burton; ex parte Rowell [2006] WASC 277
Stampalia v The Stewards of the Western Australian Trotting Association [1999] WASC 7
Zucal v Harper (2005) 29 WAR 563

(Page 3)

SIMMONDS J

Introduction

1 This is the first return of what is styled an application by way of notice of originating motion for an order nisi for a writ of certiorari in respect of an order in the Joondalup Magistrates Court. The order was made on 21 November 2006 and was for the delivery up by the applicant of vacant possession of…

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 Snook v Lawrence

Details

AGLC: Snook v Lawrence [2007] WASC 111
Case: [2007] WASC 111
Decision Date: 17 MAY 2007

CaseChat Overview and Summary

The case of Snook v Lawrence involves a dispute between a landlord and a tenant over an order for vacant possession. The matter was initially heard in the Magistrates Court of Western Australia and was treated as an application for a review order under the Magistrates Court Act 2004 (WA), section 36. The tenant, Snook, sought to challenge the order for vacant possession that was made under the Residential Tenancies Act 1987 (WA), section 26. The primary legal issue for the court to determine was whether the order for vacant possession complied with the principles of natural justice, specifically whether it provided the tenant with a fair opportunity to be heard. Additionally, the court needed to decide whether a stay of execution of the order for vacant possession should be granted to allow for the application for review to be heard.

In reaching its decision, the court examined the procedural fairness of the proceedings leading to the order for vacant possession. The court found that there were significant procedural irregularities that deprived the tenant of a fair opportunity to be heard, thus breaching the principles of natural justice. Consequently, the court concluded that the application for review should be heard by a Judge in chambers. The court also determined that a stay of execution of the order for vacant possession should be granted to allow for the application for review to be properly heard. As a result, the court issued an order for the application for review to be heard by a Judge in chambers and ordered that copies of the application and affidavits be served as directed. Furthermore, the court ordered a stay of execution of the order for vacant possession and granted liberty to apply for further directions.

The final orders of the court include the re-listing of the application for review for further directions, the requirement for the serving of copies of the application and affidavits, and the granting of a stay of execution of the order for vacant possession. The court's decision ensures that the tenant will have an opportunity to challenge the order for vacant possession on the basis of procedural fairness and natural justice. The stay of execution allows the tenant to remain in the property pending the outcome of the review application. The case highlights the importance of adhering to procedural fairness in residential tenancy disputes and the consequences of failing to do so.

Orders

Orders of the court

Order for application for review to be heard by a Judge in chambers

Copies of application and affidavits to be served as directed and then

application to be re-listed for further directions

Order to stay execution of order for vacant possession

Liberty to apply

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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