Snook v Magistrate Trevor Darge [No 3]

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

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

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

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