Snook v Magistrate Trevor Darge [No 3] - [2024] WASC 487

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SNOOK -v- MAGISTRATE TREVOR DARGE [No 3] [2024] WASC 487
CORAM:   SEAWARD J
HEARD:   19, 21 & 22 MARCH 2024
DELIVERED          :   20 DECEMBER 2024
FILE NO/S:   CIV 2035 of 2023
BETWEEN:   PIPPA VANESSA SNOOK
Applicant
AND
MAGISTRATE TREVOR DARGE
First Respondent
HOUSING AUTHORITY
Second Respondent

Catchwords:

Application for review order - Final hearing - Whether the court should set aside an order to terminate residential tenancy and give vacant possession - Whether the learned magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the Residential Tenancy Act 1987 (WA) - Where the learned magistrate considered the 'utility' of the tenancy - Whether the applicant was denied procedural fairness - Whether there has been a jurisdictional error - Self-represented applicant - Turns on own facts

Legislation:

Residential Tenancies Act 1987 (WA), s 60, s 64, s 71(3)(b)(i)
Magistrates Court Act 2004 (WA), s 36

Result:

Application allowed in part
Remitted to Magistrates Court on limited issues

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	No appearance
Second Respondent	:	Mr J Carroll
Amicus Curiae	:	Mr P J Hannan

Solicitors:

Applicant	:	In Person
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office
Amicus Curiae	:	Mr P J Hannan

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

Davie v Manuel [2024] WASCA 21; (2024) 107 MVR 147
Defendi v Szigligeti [2019] WASCA 115
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Miller v McCormick [No 2] [2012] WASC 347
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
Re Magistrate Malley; Ex parte The Housing Authority [2017] WASC 193
Re Magistrate Martin Crawford; Ex parte McCormack [2020] WASC 236
Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91

SEAWARD J:

Introduction

Ms Snook is a tenant of the Housing Authority and is currently the tenant of 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 for an order pursuant to s 64(3) of the RT Act 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).
By application dated 30 January 2023, the Housing Authority applied under s 71 of the RT Act to…

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.

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Details

Case: [2024] WASC 487
Decision Date: 20 DECEMBER 2024

CaseChat Overview and Summary

Snook v Magistrate Trevor Darge [No 3] involved the applicant, Snook, seeking a review of a decision to terminate her residential tenancy and give vacant possession. The case was heard in the Supreme Court of Western Australia. The primary issue was whether the learned magistrate misdirected himself in applying section 71(3)(b)(i) of the Residential Tenancy Act 1987 (WA), specifically in considering the 'utility' of the tenancy rather than the 'realistic' possibility of a different outcome. Additionally, the applicant argued that she was denied procedural fairness as she did not receive copies of the witness statements prior to the trial.

The court needed to determine whether the magistrate's consideration of the utility of the tenancy was a misdirection and whether this error was material, affecting the outcome of the trial. The court also needed to assess whether the lack of timely provision of witness statements denied the applicant procedural fairness. The threshold for materiality in such cases is not demanding, and the court needed to weigh whether the error had a significant impact on the trial's conduct and outcome.

In its reasoning, the court found that the term'realistic' is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. The court held that the magistrate's error was material, as it infected the trial's conduct and could have led to a different outcome. The court found that the error was not fanciful or improbable and thus met the threshold of materiality. Regarding procedural fairness, the court concluded that the applicant was not denied fairness as she had been provided with the witness statements during the trial and had time to review and cross-examine the witnesses. The court dismissed the application on all grounds.

The final orders were that the application for a review order be dismissed, and the original decision to terminate the residential tenancy and give vacant possession stands. The court found no jurisdictional error and no procedural unfairness in the conduct of the trial.

Orders

Orders of the court

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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

The term 'realistic' is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error, but the threshold is not demanding or onerous.[21][21] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [14] ‑ [15]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at 107 - 108 [46] ‑ [47], 134 [127]. I am satisfied that the error made by the learned magistrate was material. The excerpts from the Trial transcript referred to above demonstrate that the error made by the learned magistrate infected the conduct of the Trial. It is not fanciful or improbable to conclude that had the error not been made during the Trial, the conduct of the Trial could (not would) have been different. Therefore, ground of review A is established. In light of my conclusion as to ground of review A, it is not strictly necessary to consider the remaining grounds of review. However, as each was fully argued, and the outcome may be relevant to the type of relief to be granted, I have gone on to consider the remaining grounds. It is convenient to next consider ground D. Ms Snook's case in relation to this ground of review is that she was denied procedural fairness because she did not receive copies of the Form 32A witness statements for the two Housing Authority witnesses called at the Trial, Mr Nairn and Mr Pynes, prior to the Trial. The Housing Authority's case in relation to this ground is that Ms Snook was not denied procedural fairness and that the Trial was fair. By way of overview, the Housing Authority submits that both witness outlines were filed on the e‑courts portal on 19 April 2023; copies were emailed to Ms Snook on 20 April 2023 and also posted to Ms Snook on or around 6 May 2023. Further, Ms Snook was aware of the orders requiring the filing of the witness outlines, and that they had been filed and served. The Housing Authority submits that if Ms Snook did not have a copy of the witness outlines, then that was because Ms Snook took no steps to obtain copies notwithstanding being aware that they had been filed and sent to her. Finally, at the trial, Ms Snook was nonetheless given copies of the statements, and given time over the lunch break to review the outlines, and cross‑examined both Mr Nairn and Mr Pynes. Ms Snook relied on her affidavit sworn 11 February 2024 in support of this ground, which relevantly provides as follows:2.I did not receive, nor sight the witness statements of Brad Nairn nor John Pynes, as submitted for the trial in Perth Magistrates Court, before Trevor Darge, before the day of the trial.3. Until the days before the trial, it was still intended there be an anti-suit injunction argued by Peter Hannan, briefed by Vogt Graham, on a paid basis.4. Then I had retained and paid a solicitor to appear in the Magistrate's court matter.