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…
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- AGLC
- Snook v Roberts [2022] WASC 196
- Case
- [2022] WASC 196
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the magistrate had jurisdiction to make the order terminating the tenancy. Specifically, the court needed to determine whether the magistrate had been satisfied of the jurisdictional facts set out in section 71(2) of the Act. The court had to consider whether the magistrate's failure to be satisfied of the jurisdictional facts rendered the decision a jurisdictional error. The court also needed to consider the consequences of such an error, including whether the matter should be remitted back to the Magistrates Court or whether the orders should simply be set aside.
The court found that the magistrate's failure to be satisfied of the jurisdictional facts required by the statute rendered the decision a jurisdictional error. The court held that the plain wording of section 71(2) established a necessary condition to the mandatory exercise of power, namely that the court must be satisfied before the power is to be exercised. The court found that there was no material before the magistrate upon which his Honour could have been satisfied of the matters in section 71(2), and that the exchange between the magistrate and the representative of the Housing Authority was not directed to the matters in section 71(2). The court held that the precondition to the exercise of the power under section 71(2) was not met, and that the magistrate's order of 15 November 2022 must be set aside. The court considered whether remitting the matter back to the Magistrates Court was appropriate or desirable, but ultimately decided to set aside the orders and leave it to the parties to consider their next steps.
In conclusion, the court found that the magistrate's decision to terminate the residential tenancy agreement was a jurisdictional error because the magistrate had not been satisfied of the jurisdictional facts required by the statute. The court set aside the orders made pursuant to the magistrate's decision and considered the appropriate course of action for the parties. The case highlights the importance of ensuring that jurisdictional facts are properly considered and satisfied before a decision is made, and the consequences of failing to do so.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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.