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

1. 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.

2. 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).

3. 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).

4. These two matters were heard together in a trial 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.

5. On 6 September 2023, Ms Snook applied 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.

6. The matter originally came before me for an ex parte hearing on 28 September 2023.  On 2 October 2023, I granted Ms Snook a review order requiring the learned magistrate and the Housing Authority to satisfy this court that the decision made on 12 July 2023 should not be set aside on the following four grounds only (and otherwise dismissed the application):

   (A)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.

   (B)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.

   (C)That the learned magistrate denied Ms Snook procedural fairness 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.

   (D)That Ms Snook was denied procedural fairness on the basis that she had not received the Housing Authority's Form 32A witness statements prior to the trial.

   See Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386 (Show Cause Reasons)

7. I also ordered a stay of the decision of the learned magistrate and associated enforcement orders made by a registrar of the Magistrates Court until further order.

8. These reasons should be read together with the Show Cause Reasons and the subsequent decision of Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91 (which concerned an application by Ms Snook that I recuse myself) (Recusal Reasons).

9. The Housing Authority was notified of the Show Cause Reasons and filed an appearance.  The Housing Authority was later joined as the second respondent and given the opportunity to file affidavit evidence and submissions and be heard in accordance with the powers contained in O 56A r 3 and r 5 of the Rules of the Supreme Court 1971 (WA).

10. The final review order hearing was held on 19, 21 and 22 March 2024.  Ms Snook represented herself.  The learned magistrate filed a notice of intention to abide and took no part in the hearing.  The Housing Authority appeared and was represented by counsel, leading evidence, making oral submissions and filing written submissions.  The court was also assisted by the appearance of Mr Hannan as amicus curiae who both filed written submissions and made oral submissions regarding the law applicable to the grounds of review.  At the conclusion of the review order hearing, I discharged Mr Hannan from his role as amicus.  I have been greatly assisted by the submissions of Mr Hannan.

11. For the reasons which follow, I am of view that the learned magistrate made a jurisdictional error by misdirecting himself as to the requirements of s 71(3)(b)(i) of the RT Act, and that it is appropriate that the matters JO RSTN 1470 of 2022 and JO RSTN 111 of 2023 be remitted to the Magistrates Court for the re‑determination of limited issues only.

Factual background

1. The factual background regarding the history of the tenancy; the applications made by the parties; the procedural history in the Magistrates Court leading up to the Trial and what occurred at the Trial are detailed in the Show Cause Reasons at [9] ‑ [20] and [39] ‑ [65].

2. The reasons of the learned magistrate are detailed in the Show Cause Reasons at [21] ‑ [27].

3. The procedural history leading up to the final hearing is detailed in the Recusal Reasons at [11] ‑ [18].

Legal principles

1. The legal principles regarding the scope of a review order under s 36 of the MC Act are detailed in the Show Cause Reasons [28] ‑ [33]. By operation of s 36 of the MC Act, combined with s 26(2) of the RT Act, a review order can only be made regarding the learned magistrate's decision if the court is satisfied that:

   (a)the Magistrates Court had or has no jurisdiction conferred by or under the RT Act in respect of the proceedings - that is, the decision was affected by jurisdictional error; or

   (b) a party to the proceedings has been denied procedural fairness.

2. The relevant errors alleged in relation to each ground of review are as follows:

   (a)Grounds A and B: that the learned magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act; and

   (b)Grounds C and D:  that Ms Snook was denied procedural fairness.

3. The relevant provisions of the RT Act are detailed in the Show Cause Reasons at [34] ‑ [37], but as these are central to the grounds to be determined in the final review order hearing, I have repeated these below. I also observe that the RT Act was amended in April 2024.[1] However, the provisions of the RT Act applicable to this final review order hearing are the provisions in existence prior to these amendments.

   [1] Residential Tenancies Amendment Act 2024 (WA) which was assented to on 22 April 2024.

4. The RT Act regulates the relationship between lessors and tenants under residential tenancy agreements.

5. 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;

6. 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.

7. 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

   (b) where the notice was given by the lessor upon a particular ground prescribed by this Act, other than a notice given by a lessor on a ground referred to in section 71C or 71H, that the lessor has established that ground and, in the case of notice upon the ground of a breach by the tenant of a term of the agreement, that the breach is in all the circumstances such as to justify termination of the agreement; 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.

8. The RT Act also stipulates which courts have jurisdiction to hear and determine disputes arising under a residential tenancy agreement or the RT Act. The Magistrates Court has exclusive jurisdiction to determine a 'prescribed dispute', which is any matter that may be the subject of an application under the RT Act, other than an application that is, or involves, a claim for an amount over the prescribed amount.[2]  The prescribed amount is $10,000.

   [2] RT Act, s 12A and s 12.

9. By s 12A(2) of the RT Act, the applicable procedure for a prescribed dispute is that applicable for a 'minor case' under pt 4 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). By s 14 of the RT Act, 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;[3] may hear the application jointly with any other application;[4] and the court is not bound by the rules of evidence.[5]

   [3] RT Act, s 20(a).

   [4] RT Act, s 20(j).

   [5] RT Act, s 21.

Procedural matters concerning the final review order hearing

1. The final review order hearing was listed for 19, 21 and 22 March 2024, with the court sitting between the hours of 10.00 am and 2.00 pm to make allowance for Ms Snook's medical conditions.  Ms Snook was granted leave to appear by way of video‑link or telephone‑link.  Ms Snook's appearances were sometimes by way of telephone‑link due to technical difficulties with Ms Snook maintaining a video‑link or by audio only.

2. The actual substantive review order hearing only took place for part of 21 March and on 22 March 2024, due to a number of interlocutory applications made by Ms Snook, and Ms Snook's own actions during the final review order hearing.

3. On 18 March 2024 (being the day before the first listed day of the final review order hearing), Ms Snook filed an application seeking to adjourn the hearing.  I heard that application on 19 March 2024.  After hearing from the parties in relation to this application, I refused the application and provided oral reasons for so doing.  Those oral reasons concluded at 12.30 pm.  I then outlined the process that the remainder of the final review order hearing would take.  During the course of doing that, Ms Snook emailed my associates to advise that she had stepped away from the link with the court.  The court adjourned for 15 minutes to take steps to reconnect with Ms Snook.

4. During the adjournment, Ms Snook sent an email to my associates, and also to the amicus, in which Ms Snook indicated her disappointment with the decision regarding the adjournment application.  The email also appeared to assert either actual or apprehended bias on my part.  Ms Snook also stated that she no longer had permission to access the video‑link to the court from her location, and was arranging for a friend to drive her to Perth and the court.  Ms Snook indicated that her estimated time of arrival was four hours.

5. Attempts were made by the court to contact Ms Snook to ascertain her whereabouts and the utility of driving four hours to get to the court given court was scheduled to finish at 2.00 pm.  However, there was no answer to the calls made to Ms Snook's number.  A short adjournment was held to attempt to contact Ms Snook by email.  The response to that email from Ms Snook did not clarify the time by which she anticipated arriving at the court.

6. I then heard submissions from the Housing Authority as to how the final review order hearing should proceed.  The Housing Authority submitted that the matter should proceed in Ms Snook's absence.  The amicus did not seek to be heard on this issue.

7. After hearing from the Housing Authority, and considering the matters arising, I concluded that the appropriate course of action was to proceed in Ms Snook's absence to admit the various documents into evidence and to permit the Housing Authority to tender the evidence upon which it relied, including calling Mr Nairn, a Regional Recoveries Officer of the Housing Authority.  The matter would then adjourn until 21 March 2024 as programmed.  I provided oral reasons for that decision.  The amicus was excused from attending for the remainder of the afternoon, as the amicus was granted leave to appear only to make submissions on legal matters to assist the court, and not to cross‑examine witnesses.

8. For the remainder of 19 March 2024, I formally identified the various documents filed by Ms Snook at the ex parte hearing, and accepted them as exhibits in the final review order hearing.

9. The Housing Authority then tendered the only affidavit on which the Housing Authority sought to rely, being the affidavit of Bradley Colin Nairn dated 1 December 2023.  Mr Nairn was then made available for cross‑examination and questions.  As Ms Snook was still not in attendance, I asked Mr Nairn a series of questions regarding aspects of his affidavit.

10. At the conclusion of Mr Nairn's evidence, counsel for the Housing Authority made some brief submissions regarding Ms Snook's apparent suggestion of apprehended bias on my part.  Over the course of Mr Nairn's evidence and those submissions, the court received some further emails from Ms Snook.  Those were read to the court.  Of significance was an email from Ms Snook where she stated:

    As regard to Nairn, there is no point asking him anything without John Pynes being available, as I told the court before, even if I was prepared.

11. Of further significance was an email from Ms Snook indicating that she was two hours away from court.  As that would mean Ms Snook would not arrive until after the scheduled finish time of 2.00 pm, and after the usual court finishing time of 4.15 pm, I instructed my associates to advise Ms Snook that the matter would be adjourned to 10.00 am on 21 March 2024, with Ms Snook having leave to appear in person or by video‑link.  The court then adjourned at 2.19 pm until 10.00 am on 21 March 2024.

1. The court resumed on 21 March 2024, with Ms Snook appearing by video‑link.  At the commencement of the hearing, a list of the various issues that Ms Snook wanted to discuss was identified.  Two of those issues were the following two applications made orally by Ms Snook, or which arose on the emails sent on 19 and 20 March 2024:

   (a)an application that I recuse myself from hearing the final review order hearing; and

   (b)an application that the court appoint a specialist, for example, a clinical psychologist, to examine and report on Ms Snook's degree of cognitive and executive impairment, and necessity of being represented.

2. All of Ms Snook's emails regarding these applications (12 in total) were tendered as Exhibit 49.

3. After hearing from Ms Snook, counsel for the Housing Authority and the amicus in relation to the application that I recuse myself, I adjourned the court pro tem whilst I considered the matters raised in court that morning.  Upon resumption (at which point only an audio‑link could be established with Ms Snook) I refused the application and indicated that I would provide my reasons at a later date.  Those reasons were the Recusal Reasons, which were delivered on 25 March 2024.

4. After refusing the recusal application, I then heard from the parties in relation to Ms Snook's application that the court appoint a specialist to provide a report as to whether Ms Snook needed to be legally represented.  After hearing from the parties I adjourned pro tem to consider the matters raised.  Upon resumption, I refused the application and indicated that I would provide my full reasons at a later date.  Those reasons formed part of the Recusal Reasons, which were delivered on 25 March 2024.

5. At this point, the time of the day was 2.03 pm, and the court was scheduled to conclude for the day.  I outlined to the parties the process that would be followed when the court resumed the next day, including asking Ms Snook to consider which affidavits she wished to rely on.  Ms Snook's attention was drawn to her affidavits sworn 18 February 2024 and 11 February 2024.  I outlined that cross‑examination of Ms Snook would then take place followed by legal submissions from the parties.  Cross‑examination of both Mr Nairn and Ms Snook was previously ordered owing to the factual dispute on the evidence regarding ground of review D.  The court then adjourned at 2.07 pm until 10.00 am on 22 March 2024.

6. The court resumed for the final listed day of the final review order hearing on 22 March 2024.  Ms Snook did not join the court and sent an email to my chambers indicating that she was unable to attend as she had filed appeal notices in relation to my decisions concerning the recusal application and the application to appoint an expert, and was waiting by the telephone to attend any urgent Court of Appeal hearing.

7. Ms Snook was advised by email that the court would delay the start of the day to 10.20 am, and if Ms Snook did not join the court at that time, the hearing may continue in her absence.  Attempts to contact Ms Snook by telephone by both the court and the amicus were not responded to by Ms Snook.  After hearing from the amicus and counsel for the Housing Authority, I decided that the appropriate course of action was for the final review order hearing to continue in Ms Snook's absence.  I provided oral reasons for reaching this decision.

8. As Ms Snook was not present, but had previously indicated her intention to rely on her handwritten affidavit sworn 18 February 2024, I accepted that affidavit into evidence.  Ms Snook was unable to be cross‑examined on this affidavit as she was not present.

9. The Housing Authority then gave their oral closing submissions.  Part way through those closing submissions, at approximately 11.30 am, Ms Snook joined the hearing by video‑link.  After the conclusion of the Housing Authority's submissions, Ms Snook gave her closing submissions, followed by the amicus.  Ms Snook then had an opportunity to make any further submissions in light of the submissions of the amicus.

10. During Ms Snook's oral closing submissions, Ms Snook also at times gave evidence from the bar table and without leave.  I have not had regard to this evidence.

Ms Snook's application for leave to file and rely on written submissions

1. The final review order hearing proceeded in circumstances where Ms Snook had not filed any written submissions for the substantive hearing.

2. Programming orders were made on the following occasions for the filing of affidavit evidence and submissions by Ms Snook:

   (a)28 November 2023:  order 1 required the parties to file their submissions and affidavit evidence by 19 December 2023;

   (b)20 December 2023:  time for Ms Snook to comply with order 1 made on 28 November 2023, be extended to 12 January 2024;

   (c)17 January 2024:  order 9 required Ms Snook to file her submissions and affidavit evidence by 5 February 2024;

   (d)12 February 2024:  order 9 provided for Ms Snook to file her submissions and affidavit evidence by 16 February 2024; and

   (e)19 February 2024:  order 2 provided that Ms Snook was to file her submissions and affidavit evidence by 11 March 2024, and if Ms Snook did not do so, then she would require leave to rely on any additional documents, affidavits or submissions.

3. Ms Snook had filed submissions and affidavits in support of the interlocutory applications that had been made in the lead up to and during the hearing.

4. At the conclusion of the review order hearing, Ms Snook made oral submissions, and sought leave to file written submissions to supplement her oral submissions.  On 27 March 2024, I made the following programming orders in this regard:

   1.By 5 April 2024, the applicant is to file and serve a copy of her proposed additional written submissions and is to also file and serve submissions limited to 2 pages explaining why the applicant should be granted leave to rely on the proposed written submissions.

   2. By 12 April 2024, the Housing Authority is to inform the court and the applicant whether it:

   (a) opposes the applicant being granted leave to rely on the written submissions, and if so is to file and serve written submissions limited to 2 pages outlining the reasons for that opposition; or alternatively

   (b) does not oppose the applicant being granted leave to rely on the written submissions, and if so is to file and serve any written submissions in response by 19 April 2024.

5. Ms Snook did not file her submissions by 5 April 2024, and was granted an extension of time until 12 April 2024 to file those submissions (the consequence of this extension was that the time for the Housing Authority to comply was also extended to 19 April 2024).

6. On 12 April 2024, Ms Snook filed what I understand to be her written submissions, which consisted of four emails attaching submissions and other documents.

7. On 17 April 2024, the Housing Authority filed short submissions opposing Ms Snook having leave to file and rely on the submissions.  The Housing Authority submitted that leave should not be granted because the submissions do not purport to be in relation to any substantive matter arising in the proceedings and are irrelevant.  The Housing Authority also indicated that it did not seek to respond to the submissions.

8. In all the circumstances, I decline to grant Ms Snook leave to rely on the written submissions filed on 12 April 2024.  I have reached this conclusion for the following reasons:

   (a)Ms Snook has had numerous opportunities to file written submissions for the final review order hearing and chose not to do so.  I accept that Ms Snook is self-represented in this matter and has had some health issues.  However, these matters do not explain Ms Snook's persistent refusal to file her submissions by the relevant due dates, or prior to the final hearing.  Ms Snook was able to file submissions and affidavits for the other applications she made in the lead up to and during the course of the hearing; and

   (b)the submissions filed by Ms Snook do not address the substance of any of the four grounds of review.

Ground A - did the learned magistrate misdirect himself as to the requirements of s 71(3)(b)(i) of the RT Act?

1. Ground A concerns s 71(3)(b)(i) of the RT Act, and whether the learned magistrate misdirected himself as to the requirements of this section.

Correct legal construction of s 71(3)(b)(i) of the RT Act

1. Section 71(1) of the RT Act provides that where a lessor gives a notice of termination to the tenant and the tenant fails to deliver up possession of the premises on the day specified, the lessor may, within 30 days after that day, apply to a competent court for an order terminating the residential tenancy agreement and an order for possession of the premises. Section 71(2)(a) provides that subject to s 71, 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 that notice of termination was given by the lessor to the tenant and that it complied with and was given in accordance with the RT Act (in this case, s 64 of the RT Act).

2. Section 71(3)(b)(i) of the RT Act goes on to provide that notwithstanding s 71(2), the court may refuse to make the order if it is 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 their rights as a tenant.

3. Section 71(4) of the RT Act is concerned with the burden of proof in relation to the motivation of the lessor. Section 71(4) of the RT Act provides that where the court is satisfied that the tenant had, within the period of six months before notice of termination 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.

4. No time period is specified s 71(3)(b)(i) of the RT Act for when a complaint to a public authority must have been made, or when the steps taken to secure or enforce a tenant's rights as a tenant must have occurred. The only time period specified is the six month time period referred to in s 71(4) of the RT Act. However, the relevance of that six month time period is limited to the reversal of the onus of proof contained in s 71(4) of the RT Act. It does not limit the evidence that may otherwise be led by a tenant to establish the motivation referred to in s 71(3)(b)(i) of the RT Act.

5. There was no dispute at the final review order hearing as to the above construction of the s 71(3)(b)(i) of the RT Act.

Approach of the learned magistrate

1. In the Reasons, the learned magistrate correctly outlined the law in relation to s 71(2) and s 71(3)(b)(i) of the RT Act.[6]

   [6] Reasons, 9.

2. The learned magistrate held that he was satisfied that the notice of termination was given by the Housing Authority to Ms Snook and that it complied with and was given in accordance with the RT Act (in this case, s 64 of the RT Act).[7]

   [7] Reasons, 7 - 8.

3. The learned magistrate then went on to consider the application of s 71(3)(b)(i) of the RT Act. The learned magistrate first considered whether there were any actions within six months of the issue of the termination notice in November 2022 that led to the Housing Authority's actions in issuing the termination notice. The learned magistrate concluded that there was not, and that therefore Ms Snook bore the burden of establishing the requisite motivation.[8]

   [8] Reasons, 9 - 10.

4. The learned magistrate then went on to consider whether Ms Snook had established the requisite motivation.  In this regard, the learned magistrate held as follows:[9]

   Now, there was some variously detailed comments and arguments that Ms Snook raised in relation to the suggestion that there had been retaliatory eviction.  Essentially, it was this, as I followed it.  There was a long history stretching back to 2008, the inception of the tenancy of the Housing Authority failing to attend to defects in the premises.

   [9] Reasons, 10 - 11.

5. The learned magistrate then went on to consider the evidence of Ms Snook and that called by the Housing Authority,[10] before concluding:[11]

   It seems to me, based on all the evidence that was presented, that the reason for the application was perhaps an overall fatigue and a desire to get the premises back.  These were the motivating factors and not Ms Snook's actions, whatever they may have been, to exert her rights.

   [10] Reasons, 11 - 12.

   [11] Reasons, 12.

6. Accordingly, in the Reasons the learned magistrate has correctly construed and applied s 71(3)(b)(i) of the RT Act.

7. However, as I outlined in the Show Cause Reasons, a different picture emerges from the transcript of the Trial itself. During the Trial, the learned magistrate incorrectly construed s 71(3)(b)(i) of the RT Act by indicating to Ms Snook that she could only ask questions in cross‑examination or give evidence about events which happened in the six months prior to the termination notice being issued in November 2022. The learned magistrate, on more than one occasion, indicated to Ms Snook that this six month period was the only time period in which the Housing Authority's motive was relevant. Examples of these exchanges can be seen at pages 151 ‑ 154, 161, 165, 204 ‑ 205 and 211 ‑ 212 of the transcript of the Trial. By way of example:[12]

   [12] ts 29 June 2023, 151 - 153.

   HIS HONOUR: The section, as I've read - - -

   …

   HIS HONOUR: Says that the only way that this notice is – will be regarded invalid - - -

   …

   HIS HONOUR: - - - is that it was – that had within the period - - -

   SNOOK, MS: You mentioned breaches.

   HIS HONOUR: Had within the period of six months before notice - - -

   SNOOK, MS: I know.  I've got to get there.

   HIS HONOUR: So six months.  So that's why I'm a bit frustrated when you're telling me things about 2008 because I can only - - -

   SNOOK, MS: But so does his affidavit.

   HIS HONOUR: I can only do six months, all right.

   SNOOK, MS: But so does his affidavit, talk about the whole time period.

   …

   HIS HONOUR: Yes, just listen – just listen to me, thanks, Ms Snook.  Yes, thank you.  What he puts in there, he can put in there things that happened years ago, etcetera, etcetera, which may be his reasons for wanting to kick you out of the premises.  Okay.  And they could go back years but because essentially for no fault - - -

   …

   HIS HONOUR: Just listen to me.  And what you have to show is that within six months prior, that there was a complaint to a public authority, or you had taken steps to secure or enforce your rights and that's why they have applied in this time.  So in other words, they - - -

   …

   HIS HONOUR: They made this application in November 2022.

   SNOOK, MS: I know.

   HIS HONOUR: So between May and November 2022, something that you did to enforce your rights or complain to a public authority is the relevant issue.

   SNOOK, MS: I understand that.

   HIS HONOUR: So if you want to put to him to questions about what happened in that six months - - -

   SNOOK, MS: But he's claiming that his motivation is based on all of this.

   HIS HONOUR: Yes, it doesn't matter.  It doesn't matter what he says his motivation is, unless it's a motivation that – that relates to what you've done.

   …

   HIS HONOUR: So you can ask him questions about what happened in those six months and put to him, 'Well, this is the real reason why you wanted to kick me out because I complained about this'.

8. Two other examples are as follows:[13]

   HIS HONOUR: Yes.  No, I appreciate that, but I've continually advised you that if you've complained to a public authority and you did that two years ago and then, two years later, they apply to kick you out, then that's not what the section is designed to protect.

   SNOOK, MS: It's in all the circumstances.

   HIS HONOUR: But there is no all the circumstances.  There's only the six months and this is what was done.  And it's for a specific reason that - - -

   …

   HIS HONOUR: No, no.  I'm just trying to get to the heart of what the section tells me.  And that's – and I appreciate you saying things can develop to a point, but the section is quite clear, that there has to be something within that six months.

   [13] ts 29 June 2023, 161 and 165.

9. One further example occurred during Ms Snook's evidence in chief, where the learned magistrate stated:[14]

   HIS HONOUR: Okay.  So you've brought this application saying that – seeking to engage the court to be satisfied that within the period of six months before the notice was given by the lessor – so six months prior to - - -

   SNOOK, MS: Yes.

   HIS HONOUR: - - - November 2022, that you had complained to a public authority or taken steps to secure and enforce your rights as a tenant, so what are these – what are the complaints or the steps that you want me to take regard to?

Does the approach of the learned magistrate reveal an error?

[14] ts 29 June 2023, 205.

1. I am of the view that the learned magistrate has made an error by misdirecting himself as to the requirements of s 71(3)(b)(i) of the RT Act.

2. The Housing Authority accepted that at certain points during the trial the learned magistrate's comments demonstrated that, at that time, his Honour misunderstood the nature of the task presented by s 71(3)(b)(i) of the RT Act, with respect to the period of time within which the question of motive might be considered.[15] However, the Housing Authority submitted that no jurisdictional error was made because the learned magistrate correctly construed s 71(3)(b)(i) of the RT Act in the Reasons. The Housing Authority submitted that the correct starting point is not whether his Honour understood the correct test during the Trial, but rather whether or not in making the decision as expressed in the Reasons, the learned magistrate understood and applied the correct test. Further, the Housing Authority submitted that if his Honour did misunderstand the law during the Trial, unless the court draws an inference his Honour therefore misunderstood the law in the Reasons, the error during the Trial is insufficient to establish ground of review A.[16]

   [15] Second Respondent's Submissions [16]; ts 22 March 2024, 620.

   [16] ts 22 March 2024, 620.

3. I do not accept this submission. Whilst the learned magistrate has correctly construed s 71(3)(b)(i) of the RT Act in the Reasons, the Trial transcript reveals that the learned magistrate conducted the Trial on an incorrect basis. The examples I have referred to above demonstrate that this misdirection extended beyond merely raising the (in)appropriate construction for submissions from the parties. Rather, it is extended to telling Ms Snook that she needed to identify steps or actions in the six months prior to the termination notice being issued in order to establish the requisite motivation. I therefore consider that this misconstruction infected the entire Trial process and is not something that can be cured by the Reasons correctly construing s 71(3)(b)(i) of the RT Act after the Trial was conducted on the basis of a different construction of the relevant section.

4. The Housing Authority also submits that the conduct during the Trail might, at best, give rise to a submission that Ms Snook was denied procedural fairness in the course of the Trial, in that it had a material impact on the way Ms Snook ran her case at Trial.[17]  The Housing Authority makes two submissions in this regard.  First, that Ms Snook was not denied the opportunity to cross-examine on matters that occurred outside the six month period or to lead evidence of such matters.  The Housing Authority goes on to provide examples of such instances in their written submissions.[18]  Secondly, that a denial of procedural fairness of this type (were it established) falls outside the scope of ground of review A and therefore is not the subject of the final review order hearing.[19]

   [17] ts 22 March 2024, 620 and 622.

   [18] Second Respondent's submissions [17] - [18].

   [19] ts 22 March 2024, 620 and 622.

1. Dealing with the first submission, a review of the Trial transcript as a whole does reveal that Ms Snook, on occasions, appeared to give evidence as to some events occurring outside the six month period, or appeared to cross‑examine on such events (noting that on some occasions the dates are not clear). Ms Snook was given a certain degree of leeway regarding her cross‑examination given she was not represented. However, the Trial transcript also reveals that the learned magistrate on several occasions interrupted Ms Snook indicating that she could only ask questions in cross‑examination or give evidence about events which happened in the six months prior to the termination notice being issued in November 2022, or indicating that what was relevant or required by the section were events occurring within the six month period. Some examples are set out earlier in these reasons. Given the nature of the learned magistrate's comments regarding the six month period, and Ms Snook's status as an unrepresented litigant, I do not consider it can been concluded from a review of the Trial transcript as a whole that the learned magistrate's comments had no effect on Ms Snook, or that Ms Snook was not prevented from giving all the evidence or cross‑examining on all the matters which Ms Snook might have wanted to rely on in support of her case regarding s 71(3)(b)(i) of the RT Act had the learned magistrate not misconstrued the section.

2. In relation to the second submission, it may be that the error made by the learned magistrate can also be characterised as a denial of procedural fairness - both in the manner submitted by the Housing Authority, and also in terms of delivering the Reasons without first providing Ms Snook with an opportunity to be heard as to whether any other evidence should be called given the correct construction of s 71(3)(b)(i) of the RT Act. However, even if the error is characterised as a denial of procedural fairness, I do not consider this means that the learned magistrate did not also make an error in his construction of s 71(3)(b)(i) of the RT Act and thereby misdirect himself as to his task during the Trial. Any denial of procedural fairness only arose following, and as a consequence of, the learned magistrate misdirecting himself as to the appropriate construction of s 71(3)(b)(i) of the RT Act during the Trial.

3. Therefore, I do not accept the submission that any error made by the learned magistrate falls outside the scope of ground of review A. The extracts from the Trial transcript referred to above reveal that the learned magistrate misdirected himself as to the appropriate construction of s 71(3)(b)(i) of the RT Act during the Trial, and therefore misunderstood the nature of the task before him. I do not consider, in all the circumstances, that this misdirection is cured by subsequent correction in the Reasons.

Was the error material?

1. An error will only be jurisdictional if the error was also material to the decision that was made.  Some errors (e.g. bias or unreasonableness in the final result) will, of their nature, always be jurisdictional errors.  However, for most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could (not would) realistically have been different if the error had not occurred.[20]

   [20] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [6] ‑ [7], [14]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [32] ‑ [33], [46], [63].

2. 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].

3. 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.

4. Therefore, ground of review A is established.

5. 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.

Ground D - was Ms Snook denied procedural fairness?

1. It is convenient to next consider ground D.

2. 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.

3. 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.

4. 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.

Evidence of the parties and the Magistrates Court transcripts

Ms Snook's evidence

1. 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.

2. Ms Snook also relied on her affidavit sworn 18 February 2024 in support of this ground, which relevantly provides as follows at par 8:

   I did not receive the affidavits of John Pynes or Brad Nairn for the Trial of 29 June 2023 in any format prior to the day of the trial, lunchtime.  There is a very small possibility that posted ones were in the mail that got wet 1 June 2024 with all my legal files in house floods of 1 June 2023.  But unlikely since all the wet mail was listed before being disposed of.  There has been prior problems with Housing claiming legal mail was delivered and witnessed by hand.  Subsequently all correspondence has been emailed.  Notably all District Court (breach of contract), Magistrates Court (suspension) and all correspondence in this matter and in said Magistrate's Court matter (trial of which this is review), other than said affidavits, has been by email to which, as this court knows, I always type 'received' or similar, which I receive documents by email.

3. Ms Snook was not cross-examined in relation to her affidavits because she did not join the video‑link and participate in all aspects of the review order hearing after I dismissed her application that I recuse myself.

Mr Nairn's evidence

1. The Housing Authority relied on the affidavit of Mr Nairn.  Mr Nairn deposed that he is employed by the Department of Communities, Housing Authority (Department), as a Regional Recoveries Officer.  Mr Nairn has been employed by the Housing Authority for 46 years and has been a Regional Recoveries Officer for approximately six years.

2. Mr Nairn deposed that as a Regional Recoveries Officer, he represents the Housing Authority in tenancy disputes when they reach the Magistrates Court.  As a part of this role, Mr Nairn engages with tenants where possible, prepares matters for court, and presents the Housing Authorities' case in court.

3. Mr Nairn deposed that he has been the Regional Recoveries Officer with primary responsibility for three of Ms Snook's tenancy disputes in the Magistrates Court, including the two relevant to these proceedings.

4. Mr Nairn outlined the file system maintained by the Housing Authority and deposed that the facts contained in his affidavit were based on his examination of the electronic file maintained by the Housing Authority in relation to Ms Snook's tenancy and were true to the best of his knowledge, information, and belief.

5. Relevantly for this ground, Mr Nairn deposed that he attended a directions hearing in the Joondalup Magistrates Court on 23 March 2023.  At that directions hearing, programming orders were made.  A review of those orders (which are attached to Mr Nairn's affidavit) reveals that the following orders were made:

   1.By 20 April 2023, the Applicant is to lodge with the Court and serve on the Respondent a Form 32A - Statement of Intended Evidence of a Witness from each and every witness which the Applicant wishes to call at trial (including themselves), attaching copies of any documents which the witness wishes to tender at trial.

   2. Within 30 days of service of the Applicant's Statements, the Respondent is to lodge with the Court and serve on the Applicant a Form 32A - Statement of Intended Evidence of a Witness from each and every witness which the Respondent wishes to call at trial (including themselves), attaching copies of any documents which the witness wishes to tender at trial.

   3. Where a party who has served a Statement of Intended Evidence of a Witness, does call the intended Witness at the trial:

   (a) that party may not, without leave of the court, lead evidence from that witness if the substance of the evidence is not included in the statement served;

   (b) subject to objections as to the admissibility of any evidence in a statement, the statement will stand as the evidence in chief of the Witness; and

   (c) that party shall have the statement ready for tender at the trial, together with copies for each party, the Witness and the Court.

   4. The Application is adjourned for trial on 29 June 2023 at 10:30am at the Magistrates Court of Western Australia, Central Law Courts, 501 Hay Street, Perth.

6. Mr Nairn then deposed as follows:

   13.On 19 April 2023, I lodged via eCourts a Form 32A- Statement of Intended Evidence of a Witness authored and signed by myself.  A copy of my Form 32A is attached and marked BN-6.

   14. Also on 19 April 2023,1 lodged via eCourts another Form 32A - Statement of Intended Evidence of a Witness authored and signed by Mr John Pynes.  A copy of Mr Pynes' Form 32A is attached and marked BN-7.

   15. On or about 19 April 2023, I downloaded sealed copies of BN-6 and BN-7 from the eCourts portal.

   16.On 20 April 2023 at 3.08 pm, I served sealed copies of BN-6 and BN-7 on Ms Snook, via email to [redacted].  A copy of this email is attached and marked BN-8.

   17. I received confirmation from Microsoft Outlook that the documents had been delivered to [redacted] but that no read receipt (or 'delivery notification') had been sent.  A copy of that confirmation is attached and marked BN-9.

   18. Having reviewed the transcript of 29 June 2023 in Magistrate Court proceedings RSTN 1470 of 2022 and RSTN 111 of 2023, I now recall also posting copies of BN-6 and BN-7 to Ms Snook at [redacted] Beldon, on or around 6 May 2023.

   19. I did not receive any Form 32A Witness Statements of Intended Evidence of a Witness from Ms Snook in relation to proceedings RSTN 1470 of 2022 or RSTN 111 of 2023.

   20. I have reviewed the records held by the Housing Authority, and can confirm that we do not have any witness statements from Ms Snook for RSTN 1470 of 2022 or RSTN 111 of 2023.

   21. On my review of those records, I did identify a hand-written affidavit which appears to be sworn by Ms Snook and is dated 23 March 2023, and filed on RSTN 1470 of 2022.  A copy of that affidavit is attached and marked BN-10.

7. As Ms Snook chose not to be present when Mr Nairn gave his evidence in the final review order hearing, I questioned Mr Nairn about his affidavit.  Mr Nairn's evidence in response to those questions was that he independently recalled posting the witness statements to Ms Snook.  Mr Nairn's evidence was that he addressed and filled the envelope and walked the envelop to the records section of the Department where he left it on the counter, where the records section then has Australia Post or a courier come and collect all the mail at the end of the day.  Mr Nairn's evidence was that this was also the standard process he follows for posting mail in the Department.

8. Mr Nairn's evidence was also that he had an independent recollection of and was sure that he had emailed Ms Snook the witness statements after he had lodged them with the e-courts portal.

9. Attachment BN-8 to Mr Nairn's affidavit is an email he sent to Ms Snook on 20 April 2023.  The subject line of the email is 'Sealed Witness Statements' and the following attachments are listed: 'Sealed Form 32A Witness Statement – Brad Nairn.pdf; Sealed Form 32A Witness Statement – John Pynes.pdf'.  The body of the email provides:

   Good Afternoon Ms Snook

   Please find attached the sealed Witness Statements.

   Regards

   Brad Nairn

10. Attachment BN-9 to Mr Nairn's affidavit is an email appearing to be an automatically generated delivery confirmation email.  The email contains the subject line 'Relayed: Sealed Witness Statements' and the body provides as follows:

    Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server:

    pip wood [redacted]

    Subject:  Sealed Witness Statements

11. Mr Nairn's evidence was that he located attachment BN‑9 to his affidavit in a separate file he has in his Microsoft Outlook for Ms Snook.  Mr Nairn confirmed that BN‑9 was the only response he received in relation to the email sending the witness statements, and he does not know what Ms Snook did or did not see.

Transcripts

1. A review of the transcripts reveals that Ms Snook was present at the 23 March 2023 directions hearing when the orders regarding the filing and serving of witness statements were made.

2. Further, at the directions hearing which took place on 26 April 2023 (at which Ms Snook was not present as Ms Snook was not notified of the hearing), Mr Nairn stated that the Housing Authority witness statements had been 'lodged and served last week'.[22]

   [22] ts 26 April 2023, 10 - 11.

3. A further directions hearing took place on 5 May 2023.  Ms Snook was present at that directions hearing.  At that directions hearing, the following relevant exchange occurred:[23]

   [23] ts 5 May 2023, 27 - 29.

   SNOOK, MS: Can I have a copy of – can I have a copy of 111 emailed to me, please? Because I really have never seen it.

   HIS HONOUR: Which email? The – what email?

   SNOOK, MS: Use the win44 one.  We – we hope to have gotten rid of the malware by the weekend.

   NAIRN, MR: Sir, that is how I issued the statement of claim – the witness statements, as well – through that, sir.  So they - - -

   HIS HONOUR: Yes.

   NAIRN, MR:  - - - have already been served.

   SNOOK, MS: I – okay.  So – so I need to clarify this.  Up until now, all the documents that Housing have issued over the many, many years have been to the post box.  I do not use the eCourt portal, because while it was originally designed for solicitors, when they converted it to civilian, when you have matters in more than one jurisdiction and you're a civilian, the system can't handle it.  So with the permission of all the various courts, I've been emailing the courts directly and not making use of the eCourt portal.

   HIS HONOUR: Right.

   SNOOK, MS: And so even when they're - - -

   HIS HONOUR: So what do you want? Do you want it sent - - -

   SNOOK, MS: I – I used - - -

   HIS HONOUR: - - - to you by email – the documents to be emailed or posted to [redacted]?

   SNOOK, MS: Well, they can do both, if they want.

   HIS HONOUR: That – it's not a question of - - -

   SNOOK, MS: I would just like to see what it's supposed - - -

   HIS HONOUR: - - - what they want.  It's what you want, Ms Snook.  You're the one who's complaining that you're not getting things.  How do you want it so that you get it?

   SNOOK, MS: Well, like I said, up until now, they've always posted it.  They did not post anything - - -

   HIS HONOUR: What do you want, Ms Snook?

   SNOOK, MS: - - - to me about a hearing on - - -

   HIS HONOUR: Ms Snook, what - - -

   SNOOK, MS: - - - the 26th.

   HIS HONOUR: - - - do you want? What do you want?

   SNOOK, MS: I suggested they do both so that I get copies.

   HIS HONOUR: Right.

4. A review of the transcript from the Trial reveals that a number of different exchanges took place in relation to the question of the witness statements, prior to Ms Snook giving evidence.

5. The Trial transcript reveals that Ms Snook stated to the learned magistrate that she had massive floods in her house in early June which destroyed all of her records, the phone and dampened her computer.[24]  The flood was again referred to in the following exchange with the learned magistrate:[25]

   SNOOK, MS: Bearing in mind that I have no paperwork, because it all drowned, and I haven't been able to regenerate it.

   [24] Trial ts 29 June 2023, 9.

   [25] Trial ts 29 June 2023, 22.

6. Later in the transcript Ms Snook stated that her email 'is now reconstituted'.[26]

   [26] Trial ts 29 June 2023, 24.

7. The following exchange took place in the first session on 29 June 2023:[27]

   SNOOK, MS: However, I wish to flag, for the transcript, that there has been some 54 hearings before the Magistrates Court in Joondalup, mostly Housing trying to evict me, and one hearing where I had 42 breaches against them.  And they've – any time it has been found in my favour, they never mend anything anyway.  But I will say that anything – I haven't even looked at the affidavits that were sent, because I don't have the material to reject it with, because it's all wet, and I haven't been able to regenerate it.

   …

   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.

   [27] Trial ts 29 June 2023, 27 and 29

8. Spare copies were then provided to Ms Snook.[28]

   [28] Trial ts 29 June 2023, 29.

9. Ms Snook then said to the learned magistrate:[29]

   I didn't know that John Pynes was attending, and obviously, I don't have the paperwork, but I was going to ask - - -

   [29] Trial ts 29 June 2023, 30.

10. The reference by Ms Snook to 'affidavits' is a reference to the witness statements.

11. Ms Snook cross-examined both of the Housing Authority witnesses during the Trial.

12. The following exchange with the learned magistrate in relation to the witness statements also took place:[30]

    [30] Trial ts 29 June 2023, 49 - 50.

    SNOOK, MS: You did not inquire of either party how long this would take.  And I'm faced with lengthy affidavits, which would not - - -

    HIS HONOUR: No, you're not.

    SNOOK, MS: - - - be acceptable - - -

    HIS HONOUR: You are not.  You're - - -

    SNOOK, MS: Yes, I am.  I've just - - -

    HIS HONOUR: You're simply not.

    SNOOK, MS: - - - been given them by the department.

    HIS HONOUR: They're quite short.  There's a – one is - - -

    SNOOK, MS: Well, the - - -

    HIS HONOUR: One is - - -

    SNOOK, MS: - - - paragraph - - -

    HIS HONOUR: One is one page, and one is two pages.

    SNOOK, MS: Yes.  And I would like to - - -

    HIS HONOUR: Well, that's - - -

    SNOOK, MS: - - - disprove every line of them.  None of them should be - - -

    HIS HONOUR: Well - - -

    SNOOK, MS: - - - accepted as existing.  I have evidence against all of that.  I can - - -

    HIS HONOUR: Okay.  Well, you will be entitled to put that evidence.

1. At the Trial, the Housing Authority witness, Mr Nairn, gave the following evidence in relation to the Form 32A witness statements:[31]

   [31] Trial ts 29 June 2023, 71.

   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 [redacted].

   SNOOK, MS: No, you didn't.

   HIS HONOUR: Okay.  All right.  Please don't call out.  You can ask questions if you wish to ask questions when the witness has finished their evidence.  Okay.  So is there anything else that you wish to say?

   NAIRN, MR: No, sir.  That's my - - -

   HIS HONOUR: Okay.

   NAIRN, MR: That's my evidence.

2. Ms Snook was then invited to cross‑examine Mr Nairn.[32]  Prior to doing so, there was an exchange about the order of the witnesses, and whether Mr Pynes could give evidence before Ms Snook cross‑examined Mr Nairn, with Mr Nairn being recalled later for his cross‑examination.  The learned magistrate refused to adopt this course, and in that context the following exchange took place:[33]

   SNOOK, MS: I've only - - -

   HIS HONOUR: Your time - - -

   SNOOK, MS: - - - just at - - -

   HIS HONOUR: - - - starts - - -

   SNOOK, MS: - - - lunchtime seen John Pynes' statement.  So if I – see, I haven't got time.  I was going to say if I lead with the questions I intended now, that leaves nothing left - - -

   HIS HONOUR: You can ask the same questions to Mr Nairn and - - -

   [32] Trial ts 29 June 2023, 72.

   [33] Trial ts 29 June 2023, 72.

3. A similar reference to only receiving Mr Pynes' witness statement over lunch is made later in the transcript.[34]

   [34] Trial ts 29 June 2023, 95.

4. Ms Snook gave evidence at the Trial, and the only evidence given by Ms Snook in relation to witness statements was in relation to the lack of a witness statement filed by Ms Snook:[35]

   NAIRN, MR: I don't have any questions, sir.  Ms Snook didn't put in a witness statement so I haven't had an opportunity to have a look at anything like that and I couldn't get anything from her evidence.  I got a couple of things that I will use in my summation.

   SNOOK, MS: I would have had a huge witness statement if I had had the documents but the house flooded.

Witness outlines

[35] Trial ts 29 June 2023, 218.

1. Copies of the witness outlines are attached to Mr Nairn's affidavit as BN‑6 and BN‑7.

2. Mr Nairn's outline contains only one paragraph of substantive text, being:

   I did on the 7^th November 2022 issue a Form 1C Notice of Termination to Ms Pippa Vanessa Snook of [redacted] Beldon.  This notice was issued giving Ms Snook a vacation date of 20 January 2023, The Notice was posted by mail by myself to Ms Snook's residence at [redacted] Beldon and also emailed to Ms Snook along with her lawyers at the time bplawyers [sic].

3. The outline then attaches that Notice of Termination and its covering letter.

4. Mr Pynes' outline consists of 1.5 pages of substantive text addressing the reasons for issuing the Form 1C termination notice. It also attaches one document, being a memorandum to the Director General recommending that a notice of termination pursuant to s 64 of the RT Act be issued to Ms Snook. That attachment is five pages.

Legal principles - procedural fairness

1. There is no dispute that the learned magistrate was required to accord Ms Snook procedural fairness.  However, the more significant question is the content or scope of that obligation, and whether it was breached in this case.

2. The Court of Appeal outlined the principles regarding ascertaining the content or scope of the obligation of procedural fairness in circumstances involving a case in the Magistrates Court in the decision of Defendi v Szigligeti as follows:[36]

   45 It is axiomatic that a court is obliged to accord procedural fairness to a litigant.

   46 However, to say that a court is obliged to afford procedural fairness is only the first step of analysis.  The second step is to identify the content of the requirements of procedural fairness.  The second step is what is critical in most cases.

   47 Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.

   48 The requirements of procedural fairness are not fixed or immutable.  Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances.  The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.

   (citations omitted)

   [36] Defendi v Szigligeti [2019] WASCA 115.

3. In Miller v McCormick [No 2],[37] Hall J (as his Honour then was) considered the scope and content of the obligation of procedural fairness in the context of an application under the RT Act:

   [37] Miller v McCormick [No 2] [2012] WASC 347.

   18The provisions of the Residential Tenancies Act and the reference to natural justice in s 26 make it clear that some form of hearing is required.  However, as is so often the case, the issue is what type of hearing.  In the present case, that question must be guided by the terms of the legislation.

   19The Residential Tenancies Act is not prescriptive in terms of whether evidence must be on oath, whether witnesses should be examined or cross-examined or whether there should be a process for formally proving documents.  To the contrary, it allows for a much more informal approach.

   20In Russell v Duke of Norfolk [1949] 1 All ER 109, Tucker LJ said:

   The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.  Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case (118).

   21What is required is that the hearing be a fair one, not that it complies with some fixed body of procedural rules.  What is fair in a given situation depends upon the circumstances… The onus of establishing that the standard of fairness has not been met will lie upon the party who seeks to prove a breach of natural justice.  It must be shown that the procedures adopted were unfair in the circumstances or that the applicant has suffered a 'practical injustice'.

   (citations omitted)

Did Ms Snook receive the witness outlines?

1. The first matter to consider is whether Ms Snook received a copy of the witness outlines.

2. I accept the evidence of Mr Nairn that the witness outlines of Mr Pynes and Mr Nairn were lodged with the e-courts portal on 19 April 2023 and served on Ms Snook by both email and post.  Ms Snook chose not to attend court to cross‑examine Mr Nairn in this regard.

3. Ms Snook's evidence is that she did not receive a copy of the witness outlines.  I accept that Ms Snook does not have access to the e-courts portal.  However, the email address and postal address that Mr Nairn sent the witness outlines to are the addresses used by Ms Snook.  It is unclear what else Mr Nairn could have done to bring the witness outlines to Ms Snook's attention.  At no point after 6 May 2023 did Ms Snook contact the Housing Authority to explain that the witness outlines had not been received or to request further copies be provided.

4. Ms Snook's explanation for not receiving the witness outlines is somewhat inconsistent.  Ms Snook's evidence is that she has had difficulty with the post to her address and she has had computer issues.  It would seem unlikely that both methods of serving Ms Snook would have failed.

5. Ms Snook also refers to flooding at her address.  However, any flooding would not have meant that Ms Snook did not receive the statements in the post, only that they (and other documents) may have been damaged.  Ms Snook acknowledges that there is a possibility that the witness outlines were received by post and damaged in the flood, but considers that to be unlikely.

6. At one point during the Trial, Ms Snook indicated to the learned magistrate that she hadn't 'even looked at the affidavits that were sent, because I don't have the material to reject it with, because it's all wet, and I haven't been able to regenerate it'.  This exchange, on its face, appears to be inconsistent with the other explanations that the witness outlines were never received at all.

7. Significantly, Ms Snook did not make herself available at the final review hearing for cross‑examination and therefore Ms Snook's evidence and explanations were unable to be tested.

8. In light of the above matters, I am not satisfied that Ms Snook has discharged her onus of proof of demonstrating that she did not receive the witness outlines of Mr Pynes and Mr Nairn prior to the trial.  Whilst Ms Snook's affidavit states that she did not receive the statements, the statements were sent to Ms Snook's preferred email and postal address and at no time after the 5 May 2023 directions hearing (and prior to the Trial) did Ms Snook indicate that she had not received the witness outlines, despite being aware that they were required to be served by 20 April 2023 and despite being aware that they had been emailed and were to be posted.

Was Ms Snook denied procedural fairness?

1. Notwithstanding my above conclusion I have, nonetheless, gone on to consider whether Ms Snook would have been denied procedural fairness if Ms Snook did not receive the witness outlines prior to the Trial.

2. In all the circumstances, I am not satisfied that Ms Snook was denied procedural fairness. What was required was for Ms Snook to be given a reasonable opportunity to be heard. That opportunity must be considered in the context of the requirements under the RT Act. As outlined by Hall J, the question is whether Ms Snook was denied a fair trial. I am satisfied that Ms Snook was not denied a fair trial for the following reasons:

   (a)pursuant to s 14 of the RT Act, the two applications before the learned magistrate were required to be heard and determined within 14 days, or as expeditiously as possible. Notwithstanding this requirement, the trial for the applications was not listed for trial until 29 June 2023. Accordingly, Ms Snook had a significant period of time, some five months, within which to prepare for the Trial;

   (b)the proceedings before the learned magistrate were required to be heard as minor cases matters, and as such the learned magistrate was able to proceed in such a manner as he considered best suited to the purposes of the Act.  A review of the Trial transcript reveals that the learned magistrate at all times attempted to ensure fairness to both parties in circumstances where Ms Snook did not file any witness outlines and still gave evidence;

   (c)I am satisfied that Ms Snook was served with the witness outlines by both post and email;

   (d)Ms Snook was aware of the requirement for the parties to file and serve witness outlines.  Ms Snook was present at the directions hearing on 23 March 2023 when this order was made and therefore was aware that the Housing Authority's outlines were due by 20 April 2023, and her witness outlines were due 30 days after this.  Ms Snook was also present at the directions hearing on 5 May 2023 when Mr Nairn clarified that he had filed the witness outlines and served them on Ms Snook by email;

   (e)Ms Snook did not contact Mr Nairn or anyone at the Housing Authority between 5 May 2023 and the Trial to indicate that she had not received the witness outlines and to ask for copies;

   (f)at the Trial, Ms Snook was provided with a copy of the witness outlines and given time over the lunch break to review the outlines;

   (g)the witness outlines are short.  Mr Nairn's outline simply attaches the notice of termination.  Mr Pynes' outline explains the reasons for issuing the notice of termination and attaches a memorandum to the Director General recommending that course of action.  Mr Pynes' outline responds to a matter raised by Ms Snook in her application, being that:

   (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. 

   I am satisfied that Ms Snook, who was familiar with all the factual background regarding her interactions with the Housing Authority regarding her tenancy, would have been familiar with the matters referred to in Mr Pynes' outline, and therefore in a position to cross‑examine Mr Pynes about any aspect of his outline that she disagreed with.  I am also satisfied that this topic was a matter that Ms Snook was aware would be considered at the Trial, given it is raised by her in her own application, and therefore Ms Snook had five months to prepare to present her case on this topic;

   (h)Ms Snook did cross-examine both Mr Nairn and Mr Pynes;

   (i)Ms Snook was permitted to give evidence at the Trial, notwithstanding that she had not filed any witness outline in accordance with the orders made on 23 March 2023.  Ms Snook was therefore given the opportunity to give evidence as to why she said that the termination was in response to actions taken to enforce her rights as a tenant, and to give evidence as to the matters raised in either of Mr Nairn or Mr Pynes' outlines, or both.  This is notwithstanding that the Housing Authority had no notice of the evidence she might give; and

   (j)to the extent Ms Snook was appearing in other court proceedings prior to the Trial, that was Ms Snook's choice, and Ms Snook had been aware for approximately five months of the Trial.

3. Accordingly, even if Ms Snook did not receive the witness outlines until the morning of the Trial, I am satisfied in all the circumstances that Ms Snook was not denied procedural fairness, that Ms Snook was given a reasonable opportunity to be heard and the Trial was fair.

4. Ground of review D is therefore not established.

Grounds B and C

Relevance of the grounds of review

1. Grounds B and C concern the reference by the learned magistrate to the question of 'utility'.

2. The Housing Authority submits that grounds of review B and C are only directed towards the learned magistrate's exercise of discretion under s 71(3)(b)(i) of the RT Act. The exercise of that discretion only arose if the learned magistrate was satisfied that a prohibited motivation had been established. The Housing Authority submits that as the learned magistrate did not reach the conclusion that a prohibited motivation had been established, the learned magistrate had no discretion under s 71 of the RT Act to refuse to make the order sought by the Housing Authority.

3. I accept this submission by the Housing Authority. Section 71(2)(a) of the RT Act provides that subject to s 71, 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 that notice of termination was given by the lessor to the tenant and that it complied with and was given in accordance with the RT Act (in this case, s 64 of the RT Act). The learned magistrate was satisfied of each of these matters.[38]

   [38] Reasons 12 July 2023, pages 7 ‑ 8.

4. Section 71(3)(b)(i), prior to amendment, provides that notwithstanding s 71(2), the court may refuse to make the orders if it is 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 their rights as a tenant. The learned magistrate concluded that he was not satisfied that the Housing Authority was wholly or partly motivated to give the notice by the fact that Ms Snook had complained to a public authority or taken steps to secure or enforce her rights as a tenant.[39]

   [39] Reasons 12 July 2023, page 12.

5. The learned magistrate nonetheless then went on to consider the position if his Honour was wrong about his conclusion as to motivation.  It was in this context that the learned magistrate referred to the concept of 'utility'.  The learned magistrate held as follows:[40]

   If I was wrong about that, and part of the motivation of Mr Pynes in Housing was motivated by her actions in exerting her rights, I would still exercise my discretion to terminate. In McCormack and Crawford there was a discussion from Justice Hill about the meaning of the word 'may' in section 71(3)(b):

   If a magistrate came to a conclusion that part of the motivation for terminate or issuing the notice was the actions of the tenant exerting their rights, that the wording of the section prescribed that the magistrate had a discretion to terminate or refuse to terminate.  This was indicated by the use of the word 'may'.  At paragraph 50 her Honour says:

   If the legislature had intended that upon being satisfied that the lessor's action was retaliatory, the application for termination be refused, this section would have used the directive word 'shall' rather than the permissive 'may'.

   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. Now, in those circumstances I find that the landlord's application 111 is granted and that I do not consider that there is a basis for determining that there is actions in issuing the notice on the part of the Housing Authority that are in breach of section 71(3)(b)(i).

   [40] Reasons 12 July 2023, pages 12 ‑ 13.

6. Accordingly, the matters the subject of grounds of review B and C are only material to the decision of the learned magistrate if Ms Snook is successful in establishing the error identified in ground of review A or ground of review D.

Ground B - did the learned magistrate take into account an irrelevant consideration?

1. When the Reasons are considered as a whole, the reference to 'utility' arises in the context of the learned magistrate assuming that even if (contrary to his Honour's conclusion) Ms Snook had been able to establish the requisite motive, that in the exercise of his Honour's 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 Honour's discretion, and not a reference to a matter which must be established by Ms Snook pursuant to s 71(3)(b)(i) of the RT Act.

2. The question raised by ground of review B is whether, having regard to the concept of utility when considering the exercise of his Honour's discretion, the learned magistrate misdirected himself as to the requirements of s 71(3)(b)(i) of the RT Act or had regard to an irrelevant consideration.

3. The learned magistrate concluded as follows in relation to the exercise of the discretion:[41]

   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.

   [41] Reasons 12 July 2023, page 13.

4. The Housing Authority submits that what the above reveals is that the learned magistrate used the word 'utility' to refer to the tenancy not being beneficial under the RT Act, due to the state of the property and the breakdown of the relationship between the Housing Authority and Ms Snook and that these are relevant matters to have regard to.

1. In Re Magistrate Martin Crawford; Ex parte McCormack,[42] Hill J held as follows in relation to the scope of the discretion in s 71(3)(b)(i) of the RT Act:

   Section 71(3)(b)(i) of the Act does not prescribe the matters that can be taken into account in exercising the discretion. The matters that are relevant are likely to vary from case to case and be fact dependent. However, the duration and history of the tenancy are likely to be relevant factors to take into account as are the other reasons the lessor had for giving notice to terminate the lease. In exercising its discretion, the court should also have regard to the purpose of s 64 of the Act which allows termination of a lease and recovery of possession of the land on reasonable notice in accordance with the Act without any requirement to provide reasons. This reflects the lessor's superior interest in the land.

   [42] Re Magistrate Martin Crawford; Ex parte McCormack [2020] WASC 236 [56].

2. I respectfully agree with her Honour's conclusions in this regard. In addition to the matters identified, I would add the conduct of the lessor and the tenant to the non‑exhaustive list of relevant matters. This is particularly relevant where the discretion is being exercised under s 71(3)(b)(i) of the RT Act.

3. The amicus submitted that the above reasons of Hill J should not be followed.  The amicus submitted that where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except where there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision‑maker may legitimately have regard.[43]  This is an orthodox statement of the law.

   [43] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40.

4. However, I do not consider that the above reasons of Hill J conflict with this principle. There is nothing in the reasons of Hill J which is in conflict with the text and purpose of pt V of the RT Act. As I have outlined earlier in these reasons, the relevant statutory provisions include s 60, s 64 and s 71 of the RT Act. These provisions expressly preserve the ability of a lessor to issue a termination notice absent any requirement for reasons. The provisions preserve the ability of the court to terminate a tenancy in these circumstances under s 71 of the RT Act. Further, s 71(3)(b)(i) of the RT Act grants the court the discretion to refuse to terminate a tenancy if satisfied that the lessor was wholly or partly motivated by the fact that the tenant had complained to a public authority or taken steps to secure or enforce their rights as a tenant.

5. The purpose of s 64 and s 71(3)(b)(i) of the RT Act were outlined by Le Miere J in Re Magistrate Malley; Ex parte The Housing Authority as follows:[44]

   60The purpose of pt V of the RTA is to simplify and codify the law concerning the termination of residential tenancy agreements.  In doing so, Parliament struck a balance between the interests of lessors and of tenants.  Prior to the introduction of the RTA, lessors in Western Australia were entitled to terminate a tenancy agreement without specifying a ground.  It is apparent from the extrinsic material that the Parliament intended to maintain this termination option, albeit with a requirement for a 60-day notice period.  This preserved the ability of a lessor to take possession of their property in a situation where a tenant is given time in which to find replacement accommodation and was the balance struck between the interests of lessor and tenant.

   …

   62It is apparent that s 71(3)(b)(i) was intended to deal with the mischief of retaliatory eviction. 'Retaliatory eviction' was, at the time of the writing of the Bradbrook Report, the enactment of the SA Act and the enactment of the RTA, an eviction in retaliation to a complaint or conduct about or taken by a tenant in relation to the condition or use of a property, and motivated by a purpose of ensuring compliance with housing codes and improving the living standards of persons living in leased accommodation. 'Retaliatory eviction' does not extend to choosing to terminate a tenancy by a without grounds notice after the lessor has given a with ground notice and decided that that means of terminating the tenancy is expensive, inconvenient or uncertain and proceeds to terminate the tenancy by a without grounds notice.

   [44] Re Magistrate Malley; Ex parte The Housing Authority [2017] WASC 193.

6. The matters identified by Hill J, and the additional matters to which I also refer, do not conflict with the subject matter, scope and purpose of the RT Act and instead are consistent with them.

7. The submissions of the amicus also refer to the RT Act being a beneficial legislation, in that it is designed to benefit tenants. The Housing Authority submits that pt V of the RT Act cannot be described as being designed to benefit tenants. Rather, as outlined by Le Meire J in Re Magistrate Malley; Ex parte The Housing Authority, pt V of the RT Act is designed to strike a balance between the interests of landlords and tenants. The matters referred to by Hill J, and the additional matters to which I also refer, recognise that balance.

8. In the present case, I am satisfied that the reference by the learned magistrate to the concept of 'utility' was a conclusion reached by the learned magistrate having regard to the history of the relationship between the Housing Authority and Ms Snook and the current state of the premises.  I consider these matters are relevant to the exercise of the discretion.  There was evidence, in the form of Mr Pynes' statement, as to these matters.  The learned magistrate concluded that based on this history, his Honour did not consider he should exercise his discretion to refuse to grant the Housing Authority's application for termination and vacant possession.

9. There may be other factors that are relevant when considering the history of the relationship between the Housing Authority and Ms Snook and whether the discretion should be exercised. However, that does not mean that the learned magistrate erred by misdirecting himself as to the requirements of s 71(3)(b)(i) of the RT Act or in having regard to an irrelevant consideration by considering the history and the state of the premises and reaching the conclusion that his Honour did.

10. At times Ms Snook's oral closing submissions in relation to this ground went further than the question of construction, and instead challenged the merits or the reasonableness of the learned magistrate's conclusion in relation to the exercise of the discretion.  These submissions went beyond the scope of the ground of review.

11. I therefore do not consider that ground of review B has been established.

Ground C - was Ms Snook denied procedural fairness?

1. Ground of review C concerns whether, assuming the learned magistrate did not take into account an irrelevant consideration when having regard to the concept of utility, the learned magistrate denied Ms Snook procedural fairness by failing to inform Ms Snook that his Honour 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 on this topic.

2. The Housing Authority accepts that the concept of 'utility' was not raised by either the Housing Authority or the learned magistrate during the course of the Trial.  The Housing Authority therefore accepts that Ms Snook was denied procedural fairness in not being given an opportunity to address the learned magistrate on the question in the context in which it was relied upon by the learned magistrate.

3. I consider this concession is properly made.

4. As outlined by the Court of Appeal in Davie v Manuel:[45]

   [45] Davie v Manuel [2024] WASCA 21; (2024) 107 MVR 147 [90].

   A person to whom procedural fairness is owed is, ordinarily, entitled to have brought to his or her attention the critical issues or factors on which the decision is likely to turn so as to give the person an opportunity to deal with them.  However, a decision-maker is not usually required to disclose to a person to whom procedural fairness must be accorded the decision-maker's mental processes, provisional views or proposed conclusions before a final decision is made.  The position may be different when the decision-maker's evaluation or conclusion is one that could not have reasonably been anticipated.  In this context, the observations of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, are relevant:

   Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case …

   The general propositions set out above may be subject to qualifications in particular cases.  Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:

   1The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).

   2The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.

   (some citations omitted)

5. In the present case, the concept (or conclusion) of utility was the clear basis upon which the learned magistrate concluded that if his Honour was wrong about his conclusion as to motivation, he would not exercise his discretion to refuse to make the order sought by the Housing Authority.  This topic was not expressly raised by the Housing Authority in the Trial, albeit the underlying history and reasons for the termination were.  It was not raised by the learned magistrate either.  Ms Snook was also unrepresented at the hearing.  In these circumstances it was appropriate for the concept to be raised with Ms Snook, so as to give her the opportunity to address the learned magistrate on this topic, including raising any other matters which Ms Snook considered were relevant to the conclusion or concept of utility on the facts of the case.

6. In these circumstances, I consider ground of review C has been established.  In light of my conclusions as to ground of review A, the error made by the learned magistrate on this ground is also material to the decision and therefore jurisdictional.

Relief

1. I have concluded that the learned magistrate made a jurisdictional error in misdirecting himself as to the requirements of s 71(3)(b)(i) of the RT Act (ground A). I have also concluded that the learned magistrate made a jurisdictional error in denying Ms Snook procedural fairness in so far as his Honour considered the question of 'utility' (ground C).

2. However, I have dismissed grounds of review B and D and otherwise dismissed the various other grounds relied upon by Ms Snook at the ex parte show cause hearing, including a ground that s 64 of the RT Act does not apply to Ms Snook's residential tenancy.[46]

   [46] Show Cause Reasons [111] ‑ [117].

3. Section 36(3) of the MC Act provides that the Supreme Court may make any review order that is just, whether it has been applied for or not. Further, s 36(4) of the MC Act provides that the court may grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari, and make any necessary consequential orders.

4. In light of my findings, I consider it is just in all the circumstances to make an order quashing the decision of the learned magistrate made on 12 July 2023 and remitting the matters to the Magistrates Court, differently constituted, for determination according to law. However, as the jurisdictional errors identified only concern the application of s 71(3)(b)(i) of the RT Act, I will order that the matters JO RSTN 1470 of 2022 and JO RSTN 111 of 2023 be remitted for hearing according to law on the basis that:

   (a)s 64 of the RT Act applies to Ms Snook's residential tenancy agreement;

   (b)the requirements of s 71(2)(a) of the RT Act have been satisfied in the present case, namely that the notice of termination dated 7 November 2022 was given by the Housing Authority to Ms Snook and that it complied with and was given in accordance with the RT Act; and

   (c)the question for determination by the Magistrates Court is whether the Magistrates Court should, notwithstanding s 71(2) of the RT Act, exercise its discretion under s 71(3)(b)(i) of the RT Act to refuse to make an order under s 71(2) of the RT Act if it is satisfied that the Housing Authority was wholly or partly motivated to give the notice of termination by the fact that Ms Snook had complained to a public authority or taken steps to secure or enforce her rights as a tenant.

5. I will hear further from the parties in relation to the precise form of orders to give effect to my decision, and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CH

Associate to the Honourable Justice Seaward

20 DECEMBER 2024