Snook v Roberts - [2022] WASC 196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SNOOK -v- ROBERTS [2022] WASC 196
CORAM:   SOLOMON J
HEARD:   14, 15 FEBRUARY & 7 JUNE 2022
DELIVERED          :   8 JUNE 2022
PUBLISHED           :   8 JUNE 2022
FILE NO/S:   CIV 1117 of 2022
BETWEEN:   PIPPA SNOOK
Plaintiff
AND
MAGISTRATE COLIN DOUGLAS ROBERTS
First Respondent
THE HOUSING AUTHORITY
Second Respondent

Catchwords:

Review order – Magistrates Court Act 2004 (WA) - Residential tenancies - Termination – Whether the magistrate acted without jurisdiction – Jurisdictional facts

Legislation:

Magistrates Court Act 2004 (WA), s 36, s 36(1), s 36(4)
Residential Tenancies Act 1987 (WA), s 17, s 20, s 21, s 22, s 26, s 26(2), s 46(2)(e), s 61, s 61(e), s 70(2), s 71(1), s 71(2), s 71(2)(a) - (c), S 75a
Rules of the Supreme Court 1971 (WA), O 56 r 2(1)(a), O 56 r 3(3)(d)

Result:

The order of Magistrate Roberts in RSTN/314/2020 dated 15 November 2021 is set aside

Category: B

Representation:

Counsel:

Plaintiff	:	R Butcher & T Camp
First Respondent	:	No appearance
Second Respondent	:	J King

Solicitors:

Plaintiff	:	Butcher Paull & Calder
First Respondent	:	State Solicitor's Office
Second Respondent	:	Department of Communities

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

D’Amore v Independent Commission Against Corruption [2012] NSWSC 473
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Plaintiff M70/2011 v Minister for Immigration & Citizenship [2011] HCA 32; (2011) 244 CLR 144
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
Re Bajaj; Ex Parte Bajaj [2021] WASC 335
Re Magistrate Johnston; ex parte Wallam [2017] WASC 226

SOLOMON J:

These reasons relate to a review hearing conducted pursuant to s 36 of the Magistrates Court Act 2004 (WA) (MCA), following a review order I made under s 36(1) of the MCA on 15 February 2022.
This matter has a long and tortuous history which it is not necessary to set out in detail in these reasons. The relevant background is set out below.
The applicant, Ms Snook, is the tenant of the second respondent, the Housing Authority at a property in the suburb of Beldon (the property). The Housing Authority is part of a government department which provides social and affordable housing in Perth and regional Western Australia. Whether the 'Housing Authority' is of itself a statutory entity or part of a larger entity is a point that no party raised in these proceedings or the proceedings in the Magistrates Court to which this application relates. In the circumstances, I will not interrogate that issue further; the matter does not lack for issues and diversions.
Ms Snook's tenancy has suffered a long and unhappy journey. Included among the myriad of issues is the concern of the Housing Authority to conduct maintenance on the property, the acrimonious episodes that have unfolded in the Housing Authority's attempts to have maintenance people attend the property, and Ms Snook's unhappiness with the manner in which those attempts have been orchestrated or conducted. Again, it is not necessary here to recount the details.
There was no dispute that the property was governed by the Residential Tenancies Act 1987 (WA) (RTA) and that the rental agreement between Ms Snook and the Housing Authority was a residential tenancy agreement for the purposes of the RTA.
Part V of the RTA is entitled 'Termination of residential tenancy agreements'. Division 2 deals with 'Notices of termination'. Section 61 provides:
Notice of termination of a residential tenancy agreement by the lessor must -
(a)be in writing and in the prescribed form; and
(b)be signed by the lessor or a property manager of the residential premises; and
(c)identify the premises the subject of the agreement; and
(d)specify the day on which possession of the premises is to be delivered up by the tenant; and
(e)specify and give particulars of the ground, if any, upon which the notice is given.
Pursuant to s 61, the Housing Authority issued a 'Notice of Termination' dated 6 January 2020. It was in writing and the prescribed form was signed by the lessor or property manager. It identified the property as the relevant premises. It specified that vacant possession of the property was to be given on 22 January 2020.
As to the requirement of s 61(e) of the RTA, the Notice of Termination provided as follows:
This notice of NOT LESS THAN 7 DAYS is given to you on the ground that you have breached a term of the agreement and the breach has not been remedied (see the Residential Tenancies Act 1987 section 62). Particulars of the breach are:
Section 46(2)(e) of the Residential Tenancies Act 1987.
It is a term of every residential tenancy agreement that the lessor may enter the premises for the purpose of carrying out or inspecting necessary repairs to, or maintenance of the premises, at any reasonable time, after giving the tenant not less than 72 hours' notice in writing before the proposed entry. Specifically, you did not allow access on 10 and 11 October 2019 and 7 and 8 November 2019.
Notice of the breach was given to you on 29/11/2019.
It is apparent that Ms Snook did not comply with the Notice of Termination and did not vacate the property. She remains in the property two and a half years later.
Section 71(1) of the RTA provides as follows:
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.
On 4 February 2020, pursuant to s 71(1), the Housing Authority issued an application in the Magistrates Court (RSTN/314/2020). The application was made by the standard 'Form 12'. The Form 12 filed by the Housing Authority is not of itself illuminating or explanatory. It sought orders for 'Termination of the agreement' and 'Possession of the premises to be delivered up to the lessor'. Under the heading 'Reasons for application: (give full details)' it simply stated 'Non‑access'.
After apparent delays, the application was listed on 6 October 2020. It was adjourned on the application of Ms Snook for 'alleged medical reasons'.[1] It was relisted on 11 January 2021 and again adjourned due to 'alleged medical reasons' associated with Ms Snook.[2] It was ultimately relisted on 15 November 2021. On that morning, Ms Snook filed 70 pages of affidavit material minutes before the hearing. The frustration of the learned magistrate is manifest in his Honour's comments at the subsequent hearing of 8 February 2022 to which I will return.
[1] Transcript, Housing Authority v Pippa Vanessa Snook, Magistrates Court of Western Australia at Joondalup, 8 February 2022, 14.
[2] ts 8 February 2022, 14.
There is some dispute as to how much notice Ms Snook received of the hearing of 15 November 2021 but it is not in dispute that she was aware of the hearing from at least 12 November 2021. It is not in dispute that the hearing proceeded in Ms Snook's absence.
At the hearing of 15 November 2021 before the learned Magistrate, the Housing Authority was represented by a 'regional recovery officer', Mr Nairn.
It is necessary to set out what transpired at the application by reference to the transcript. Relevantly, the matter unfolded as follows:
NAIRN, MR: We're seeking a termination of a tenancy, sir, due to non-access for maintenance required to the property.
HIS HONOUR: When you say non-access, what do you mean by that?
NAIRN, MR: Ms Snook won't allow the contractors to do the work at the property. Negotiations have been on – this matter has been ongoing for over – nearly two years, sir.
HIS HONOUR: Two years?
NAIRN, MR: Yes. And several times we have been in court, and it has been adjourned. And it was adjourned to trial today, sir. So my instruction from management is to seek the order today, whether Ms - -
HIS HONOUR: So how many times have you tried to have access to the property?
NAIRN, MR: Numerous times over the last two years. I've ---
HIS HONOUR: And what does she do?
NAIRN, MR: She negotiates times and won't allow the access. She won't allow the contractors access if they don't ring within two hours and turn up within 15 minutes of them saying they will. Other things are she puts stipulations on certain times. We've tried to arrange a time – we've been to mediation with her.
HIS HONOUR:   Yes.
NAIRN, MR:   And we have tried to arrange times that we can be there between 8 and 1 – five days in a row, to get the work done. And that was not suitable to her, sir.
HIS HONOUR:   So has she allowed access at all?
NAIRN, MR:   Only for general inspection. Not for maintenance – the maintenance that's required to be undertaken to the property.
HIS HONOUR:   So what's the state of the premises?
NAIRN, MR:   I haven't been there myself, sir. It's essential maintenance to maintain our asset. That's my understanding.
HIS HONOUR:   What sort of ‑ ‑ ‑
NAIRN, MR:   I haven't got that list on me, sir. Just bear with me.
HIS HONOUR:   So you're bringing the case.
NAIRN, MR:   Yes, sir. I have a couple of witnesses I was going to call, sir, that would enlarge that.
HIS HONOUR:   I'm just wondering whether it's sufficiently serious enough to justify termination.
NAIRN, MR:   There was gutters and downpipes. There was cracked ridge capping to the ceiling. Soak wells – mould on the eaves, water damage to the kitchen cupboards.
HIS HONOUR:   So is it ‑ ‑ ‑
NAIRN, MR:   It's maintenance to maintain the asset, sir. To ‑ ‑ ‑
HIS HONOUR:   So do you know ‑ ‑ ‑
NAIRN, MR:   ‑ ‑ ‑ a reasonably standard.
HIS HONOUR:   ‑ ‑ ‑ what the value of the property is?
NAIRN, MR:   (indistinct)
HIS HONOUR:   Do you know what the value of the property is, approximately?
NAIRN, MR:   It's in Heathridge, sir. I would say 400. 350, 400.
HIS HONOUR:   Okay. So it's not a – not a flash place by any means.
NAIRN, MR:   Well, it's a housing property – a social housing property, sir. So ‑ ‑ ‑
HIS HONOUR:   Yes.
NAIRN, MR:   ‑ ‑ ‑ you know.
HIS HONOUR:   Well, what about the – what happened at mediation?
NAIRN, MR:   Ms Snook wouldn't agree to anything, sir, that was ‑ ‑ ‑
HIS HONOUR:   What was proposed to try and resolve it? Do you know?
NAIRN, MR:   It was proposed that we get our contractors there between the 8 am and the 1 am, and we put that forward, and she ‑ ‑ ‑
HIS HONOUR:   1 pm?
NAIRN, MR:   1 pm. Yes, sir.
HIS HONOUR:   And she wouldn't?
NAIRN, MR:   She wouldn't agree to it, sir. She would want specific times, and if they're not there in that timeframe – within certain timeframe ‑ ‑ ‑
HIS HONOUR:   Well, you can't ever get contractors there right on time, I would have thought.
NAIRN, MR:   Exactly, sir. Yes. This is what we're dealing with. We – she's unable to be negotiated with, sir. She just won't negotiate with us.
HIS HONOUR:   Really?
NAIRN, MR:   We understand that she has some medical conditions – PTSD and etcetera. But we've tried to work with – in with her over – numerous times, sir. And it just – it's not working.
HIS HONOUR:   So over two years?
NAIRN, MR:   This matter has – yes, sir. This matter was lodged in early 2020. And it has been ongoing since then.
There has been previous history of non – not allowing contractors in.
HIS HONOUR:   Do you know where she's going to live, then?
NAIRN, MR:   I've got no idea, sir.
HIS HONOUR:   I mean, it's a fairly serious ‑ ‑ ‑
NAIRN, MR:   It is, sir. It is.
HIS HONOUR:   ‑ ‑ ‑ matter of termination.
NAIRN, MR:   It is, sir. But we've been here on numerous negotiations to negotiate – to try and get in. And Ms Snook – Ms Snook continues to frustrate us with noncompliance over the – over the period of the matter, sir. She has had numerous advocates act on her behalf, sir. And I – you know, she – it looks like she has got no regard for the court, sir, because she hasn't turned up today.
HIS HONOUR:   If I grant the termination, have you got a period of time that I ‑ ‑ ‑
NAIRN, MR:   Well, we would be looking for forthwith, sir. But we will accept the 30 days the court can give.
HIS HONOUR:   All right. All right. Well, she's not here to answer what you say. And I note the matter has been adjourned on a number of occasions, and as you have pointed out, Mr Nairn, the matter has been ongoing for about two years. There has been all sorts of attempts to try and negotiate and settlement – mediation, and that has not proved acceptable.
So in the circumstances, given that she's not here, given the history of the matter and the delay, the adjournments involved, I will grant your application. There will be an order for termination of the residential tenant's agreement. The tenant shall deliver (indistinct) of the premises, but I will give her some grace in the sense that I will make this to operate from 15 December for 30 days.[3]
[3] Transcript, Housing Authority v Pippa Vanessa Snook, Magistrates Court of Western Australia at Joondalup, 15 November 2021, 2 - 5.
As is plain from that transcript the learned magistrate granted the Housing Authority's application and ordered the termination of the residential tenancy agreement between Ms Snook and the Housing Authority (the Orders).
On 26 November 2021 Ms Snook brought an application under s 17 of the RTA to vary or set aside the Orders. That section permits a party to the proceeding to make such an application in circumstances where the relevant application was heard in that person's absence. In short, Ms Snook contended that she had only learned of the hearing on 12 November 2021, she had a certificate from her doctor stating that she could not attend (which she had sent to the court together with other material in the minutes before the hearing) and that she had a substantive defence to the application. The application was opposed by the Housing Authority.
The application under s 17 of the RTA came before the same magistrate on 8 February 2022. In dismissing Ms Snook's application, the learned magistrate made the following observations which quite understandably reflect some frustration with Ms Snook's conduct in the history of the various proceedings:
HIS HONOUR: I thought there's a fairly strong inference that she has been unreasonable in allowing tradesmen to attend the premises. Yes. All right. Thank you. All right. Well, look, there's no point standing the matter down. Mr King has specific instructions not to agree to anything and I can understand why because, even if a schedule is set out about tradesmen attending, that type of thing, given the history of the matter, there's little likelihood that anything agreed to today would be adhered to.
Of course, I have the submissions by both Mr Davies and Mr King. I'm not going to repeat those except just to paraphrase a couple of aspects that I have to consider. The first is, I must consider that the – Ms Snook has a valid or good reason not to attend court on the date in question, 15 November. If she gets over that hurdle, I then have to go on and consider what her prospects – whether there are real prospects of success arguing the case on its merits. So it's two limbs that I have to consider.
This has a very unfortunate history. An inordinate number of days have been wasted because of the actions of Ms Snook. I'm told from the bar table by Mr King that she's a former tenant's advocate so she knows the proceedings very well. And I can't help but be drawn to the reasonable inference that Ms Snook is doing everything in her power to avoid this matter coming to a head in court. One only has to consider the fact that the matter was listed on three separate occasions, 6 October '20, 11 January '21 and 15 November '21 for trial and they were adjourned because of alleged medical reasons.
Yet – and I must say, on the day in question, the 15th, it wasn't drawn to my attention that a medical certificate had been filed because she served by email massive documentation, over 70 pages only minutes before I was due to go into court with a busy list. But having said that, upon reading that medical certificate subsequently, I would not have been satisfied that that was a sufficient reason not to attend court. It says she:
…requires a minimum of six months for an improvement.
So the matter is going to – just go on and on and on.
And if she wanted to rely upon a medical certificate, as I say, I would not have accepted it and I would have required her to arrange for a doctor to give evidence in court as to her state of why she could not attend a hearing of which she is well versed in the procedures. I further note, according to submissions of the Housing Authority, that on the very day of the court – and this is irrespective of filing 70-odd pages immediately before the court – she's attending the Housing Authority when she should have been in court at 9.18 am on 15 November, attending the Housing Authority's Joondalup offices to personally serve a District Court claim. Well, she can't be too sick if she can do that.
I further note in the submissions from the Housing Authority that submitting the medical certificate by the respondent does not meet the (indistinct) requirements. And, further, that Ms Snook has still not provided a comprehensive psychiatric report ordered by the court on 6 October '20. So she wants her cake and to eat it as well. Doesn't comply with the psychiatric report, yet, wants to rely upon a medical reason as to why she can't be here.
It was put by Mr Davies that she had only become aware of the hearing only a few days beforehand. I don't know why that would be. Apparently, it was by her advocate who resides in Queensland and video evidence was arranged for him to attend the hearing, that he may have given an incorrect date. There's no evidence of that, it would appear. And, indeed, she goes out on 13 November, two or three days beforehand, to obtain a medical certificate.
And, again, I say and form the irresistible conclusion that she will do anything to try and avoid this matter coming to a head. But as I say, I do not accept she has a valid reason for not being here and, as I've said already, I expected a medical certificate to be filed and, of course, I would have rejected it if it had have been brought to my attention. One can't have hearings adjourned on three separate occasions relying upon medical grounds without a doctor being called to give evidence.
I note there is a long history of this matter. It's absolutely ridiculous that a residential tenancy matter that should be resolved within a matter of weeks or a few months has been ongoing since it was filed on 4 February '20, a period of almost two years at the time of the determination in November. Almost two years. And it's quite clear then as to the validity of her defence there does not appear to be an adequate case, in my view, of it being successful, her defence.
In fact, to the contrary. It would appear to me as though the Housing Authority who have gone through a mediation with her over an extended period of time, have tried to facilitate her demands about tradesmen attending the premises and that obstacles are always presented that makes it difficult. Any wonder the Housing Authority have wanted to proceed with this matter. I don't believe there are real prospects of a defence in the matter. She has the benefit of a tenancy under the Housing Authority and, yet, she's trying to dictate terms to the Housing Authority who own the asset.[4]
[4] ts 8 February 2022, 13 - 15.

Supreme Court proceedings

This matter was initially brought on an urgent basis on 14 February 2022 as Ms Snook was to be evicted from her home the following morning pursuant to the Orders. Ms Snook sought both a review order pursuant to s 36(1) of the MCA and a stay of execution pursuant to O 56 r 3(3)(d) of the Rules of the Supreme Court 1971 (WA) (RSC). Ms Snook proposed various grounds of reviewable error that would enliven the court's discretion to grant the orders sought.

Pursuant to O 56 r 2(1)(a) of the RSC, the matter was initially heard ex parte. At the conclusion of the hearing on 14 February 2022 I ordered that the Orders be stayed and I relisted the matter for 2.30 pm the next day (15 February 2022) so that the Housing Authority could be served and heard in relation to the review order sought.
At the hearing of 15 February 2022, I heard from both parties in relation to the application for a review order.

Power to Review

Section 36(1) of the MCA provides that:
If a person is or would be aggrieved by one or more of the following –
…
c)an act, order or direction done or made by a Court officer -
a.on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
b.on any ground that might have justified an order of certiorari
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act,
The powers of the Supreme Court under s 36 of the MCA are circumscribed in relation to decisions of the Magistrates Court under the RTA. Section 26 of the RTA provides:
(1)An order made …
(2)No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by this court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.
The principles in relation to s 36 of the MCA in respect of decisions under the RTA were recently explained by Kenneth Martin J in Re Bajaj; Ex Parte Bajaj.[5] The principles need not be repeated.
[5] Re Bajaj; Ex Parte Bajaj [2021] WASC 335 [13] ‑ [22].

Review Order

In her urgent application for a review order, Ms Snook contended that she came within both exceptions provided for by s 26(2) of the RTA because the Magistrates Court had lacked jurisdiction to make the Orders and because she had been denied natural justice.
As to the denial of natural justice, Ms Snook primarily pointed to the absence of adequate notice of the hearing, her absence from the hearing and the provision of documents just prior to the hearing which included a request for an adjournment accompanied by a certificate from a general medical practitioner in relation to Ms Snook's medical condition.
As to the absence of jurisdiction, Ms Snook contended that in making the Orders, the learned Magistrate had lacked jurisdiction because the requirements of s 71(2) 'being jurisdictional facts, did not exist'.[6]
[6] Applicant's Submissions (14 February 2022) [15].
In my extempore decision at the hearing of 15 February 2022 accompanied by brief oral reasons, I determined that I would grant the review order but only on the basis that the magistrate may have acted without jurisdiction or power. I did not grant the review order on any of the grounds advanced by Ms Snook in relation to the denial of natural justice.
I also programmed the provision of additional materials by the parties for the review hearing. On 15 March 2022 the Housing Authority filed a notice of intention to abide by the outcome of the review hearing.

Review Hearing

The materials provided to me for the review hearing were the supplementary submissions of the applicant dated 26 April 2022, and an affidavit of Pippa Vanessa Snook dated 14 April 2022. The applicant also relied on material filed in her initial application for a review order; her submissions of 14 February 2022, the affidavit of Pippa Vanessa Snook sworn 14 February 2022, and the affidavit of Thomas George Camp dated 15 February 2022.
On the morning of 7 June 2022, about an hour and half before the hearing, Ms Snook filed a further 100‑page affidavit. I was only able to look at it very briefly prior to the hearing. My initial impression was that it did not add materially to the issues for my consideration at the hearing. I invited counsel for Ms Snook to draw my attention to those parts of the affidavit that he considered to be relevant. Whilst explaining that he too had not had an opportunity to consider the affidavit at any length, counsel did not suggest that it contained anything material to the matters for my consideration at the review hearing. Having considered the affidavit further following the hearing, my initial impression was confirmed. It remains for me to observe that Ms Snook's filing of voluminous material at the eleventh hour is most unsatisfactory. It causes the justifiable frustration felt in the Magistrates Court which is prone to lead to error.
As I have outlined, the only ground to which I had regard in the determination of the review hearing were those advanced in relation to s 71(2) of the RTA regarding the absence of jurisdiction. The meaning of 'no jurisdiction' in s 26(2) of the RTA for the purposes of this court's supervisory function under s 36 of the MCA was explained by Pritchard J in Re Magistrate Johnston; ex parte Wallam [2017] WASC 226.[7] The expression encompasses a circumstance where the decision was made outside the parameters of the decision-making power granted by the statute.[8]
[7] Re Magistrate Johnston; ex parte Wallam [2017] WASC 226 [20] – [26].
[8] Ibid [26].
There is no dispute that the Housing Authority's application in the Magistrates Court for an order terminating the residential tenancy agreement was governed by s 71(2) which provides:
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
(c) where the notice was given by a lessor upon a ground referred to in section 71C or 71H, in respect of the relevant matters referred to in subsection (3A).
The essence of Ms Snook's contention is that the power of the magistrate to order the termination of the residential tenancy agreement is conditional upon the magistrate's satisfaction of the matters in s 71(2)(a) - (c), and that state of satisfaction is thus a 'jurisdictional fact'. Ms Snook submits, in effect, that there was no basis before the learned magistrate upon which his Honour could have reached such a state of satisfaction, nor did he so much as turn his mind to that requirement.
A jurisdictional fact is a fact that serves as a condition precedent to the decisionmaker's exercise of jurisdiction. Whether the statutory provision has that effect turns on the proper construction of the statute.
Where the jurisdictional fact involves not the objective existence of a fact but the mental state of the decision maker, the issue is not straight forward. These 'facts' are sometimes referred to in the authorities as a 'jurisdictional fact of a special kind'.
The issue was discussed by McClellan CJ in D'Amore v Independent Commission Against Corruption as follows:
The term 'jurisdictional fact' has received considerable judicial attention. It is a concept that is not without difficulty. As Spigelman CJ observed in Timbarra Protection Coalition Inc v Ross Mining NL[1999] NSWCA 8; (1999) 46 NSWLR 55 at [39]: 'The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction'. Perhaps because the term is shorthand for an interpretive conclusion, it is often used to refer to jurisdictional requirements of all kinds, be they objective or subjective: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at 243–244. In Timbarra, it was accepted that a 'true' jurisdictional fact is objective, in the sense that its existence does not depend on the decision-maker's opinion or belief. The Chief Justice said at [42]: at [39]: 'The appellation "jurisdictional fact" is a convenient way of expressing a conclusion — the result of a process of statutory construction'. Perhaps because the term is shorthand for an interpretive conclusion, it is often used to refer to jurisdictional requirements of all kinds, be they objective or subjective: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at 243–244. In Timbarra, it was accepted that a 'true' jurisdictional fact is objective, in the sense that its existence does not depend on the decision-maker's opinion or belief. The Chief Justice said at [42]:
Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker — “opinion”, "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact (citations omitted).
Some cases have applied the label 'jurisdictional fact' to statutory formulations containing words involving the mental state of the primary decision-maker. In Eshetu, Gummow J said at [130]: 'The "jurisdictional fact", upon the presence of which jurisdiction is conditioned, need not be a "fact" in the ordinary meaning of that term'. His Honour acknowledged that the precondition might consist of elements of opinion or belief. Gummow J noted that although use of the term jurisdictional fact is 'an awkward one in such circumstances', it is not necessarily incorrect. Other cases in which a decision-maker's state of satisfaction has been referred to as a jurisdictional fact include Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54'; (2002) 211 CLR 540 at [183] (Gummow and Hayne JJ); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37]‑[38] (Gummow and Hayne JJ); Commissioner of Police v Ryan [2007] NSWCA 196; (2007) 70 NSWLR 73 at [47] (Basten JA); and SZMDS at [20] (Gummow ACJ and Kiefel J), [102] (Crennan and Bell JJ). The description of decisions as to 'satisfaction' as jurisdictional facts is consistent with the view that these decisions are not immune from judicial review, although their subjective nature will often limit the scope of review: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 (Dixon J); see also Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHC 6; [1977] AC 1014; (2004) 78 ALJR 992 at [37]–[38] (Gummow and Hayne JJ); Commissioner of Police v Ryan [2007] NSWCA 196 ; (2007) 70 NSWLR 73 at [47] (Basten JA); and SZMDS at [20] (Gummow ACJ and Kiefel J), [102] (Crennan and Bell JJ).
A jurisdictional fact involving a state of mind will often involve an element of 'evaluative judgment'. French CJ referred to Eshetu and GrahamBarclay Oysters with approval in M70, where the Chief Justice said at [57]:
Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact.[9]
[9] D’Amore v Independent Commission Against Corruption [2012] NSWSC 473, [67] – [70].
Notwithstanding the complexity associated with the issue, it is tolerably clear that where a power is expressly conditioned upon the formation of a state of mind by the decisionmaker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact.[10]
[10] See alsoPlaintiff M70/2011 v Minister for Immigration & Citizenship [2011] HCA 32; (2011) 244 CLR 144; Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [130] – [137]; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [183].
How that state of mind is properly to be reached is a different matter that will invariably turn on the proper application of the relevant statute. Generally however, where a state of satisfaction is a jurisdictional fact and there is no evidence upon which the decisionmaker could have achieved the necessary state of satisfaction yet a decision is made, the decisionmaker commits a jurisdictional error.[11]
[11] Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 [23] – [24]; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, 432.
On the plain wording of s 71(2) the court is required ('shall') to make an order terminating the residential tenancy agreement 'if it is satisfied'. In my view those words establish a necessary condition to the mandatory exercise of power. The court is required to reach a level of satisfaction before the power is to be exercised.
Given the informal manner in which the court is to operate under the RTA, that level of satisfaction might be quite easily obtained. Part III of the RTA, and in particular s 20, s 21 and s 22 confer upon the relevant court broad powers to determine matters in a fairly informal manner without being bound by the rules of evidence. However, those broad powers do not diminish the requirement that the court must be satisfied of the matters set out in s 71(2); they simply provide for a less onerous process by which the level of satisfaction may be reached. In addition, in my view, those provisions do not permit a court to order the termination of a residential tenancy agreement without some material before the court that provides the basis upon which the level of satisfaction has been fulfilled. Less still do the provisions empower a court to order the termination of a residential tenancy agreement without so much as turning its mind to whether the elements of s 71(2) have been satisfied.
In my respectful view the passages of transcript of the proceedings of 15 November 2021 set out above make it quite plain that there was in reality no material before the learned magistrate upon which his Honour could have been satisfied of the matters in s 71(2). The exchange between the learned magistrate and the representative of the Housing Authority was not directed to the matters in s 71(2), and on the contrary, appears to have been largely directed to the period following the Notice of Termination.
It follows in my respectful view that the precondition to the exercise of the power under s 71(2) was not met. Accordingly, pursuant to s 36(4) of the MCA I have concluded the learned magistrate's order of 15 November 2022 must be set aside.

Appropriate Orders

The usual orders consequential upon my reasons, would be to set aside the Orders and remit the matter back to the Magistrates Court for determination according to law. I raised with the parties whether remitting the matter back to the Magistrates Court was appropriate or desirable given that remitting the matter would require the parties to relitigate the efficacy of a notice of January 2020 which relies upon conduct prior to that time. The parties will thus be engaged in a forensic battle concerning matters that transpired 2½ to 3 years ago. I enquired whether the Housing Authority considered that to be a desirable course or whether it was content to have the Orders set aside and then consider whether it wished to bring any application for termination of the residential tenancy agreement afresh.
Counsel for the Housing Authority advised that he considered the matter should be remitted back to the Magistrates Court because the conduct of Ms Snook up to the date of the ultimate hearing would be relevant to the remitted application. When I expressed some doubt as to whether that would be so, counsel directed my attention to the decision in Re Magistrate Johnston; Ex parte Wallam. That decision concerned an application under s 75A of the RTA which confers upon the Magistrates Court a broad power to terminate a residential tenancy agreement in a range of circumstances. The power is quite different from the power conferred by s 71(2)(b) which relates to a breach the subject of a notice. Counsel suggested that s 71(3C) in effect expanded the power in s 71 so as to permit the Magistrate Court to have regard to conduct subsequent to the notice.
I have considerable doubt about the statutory construction suggested by the Housing Authority. However, it is not necessary for me to decide the matter. The parties are content for the matter to be remitted back to Magistrates Court and I will so order. If on further reflection, the Housing Authority resolves to adopt a different approach, that course will remain open to it.
Ms Snook also sought orders requiring the Housing Authority to provide particulars of access relating to the alleged breach. It is not appropriate for this court to make the orders sought by Ms Snook in relation to particulars of access. Those are matters for consideration by the Magistrates Court in accordance with the particular regime applicable under the RTA.
Ms Snook also sought her costs of the application from the Housing Authority. The parties each made oral submissions regarding costs. I have concluded that it is not appropriate to order costs against the Housing Authority. Its appearance at the initial application for a review order was at the request of the court. Subsequently, the Housing Authority filed a notice to abide the outcome. The appropriate outcome in respect of costs is that there be no order as to costs

Orders

The Orders of Magistrate Roberts made on 15 November 2021 in RSTN 314/2020 are set aside.
The matter is to be remitted to the Magistrates Court for determination.
There is no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
8 JUNE 2022