Abraham v Housing Authority

Case [2022] FCA 1145

FEDERAL COURT OF AUSTRALIA

Abraham v Housing Authority [2022] FCA 1145

File number: WAD 173 of 2022
Judgment of: JACKSON J
Date of judgment: 16 September 2022
Date of publication of reasons: 23 September 2022
Catchwords: HUMAN RIGHTS - urgent application for injunction under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) - pending application in Magistrates Court of Western Australia - complaint of alleged racial discrimination made to Australian Human Rights Commission - purpose of s 46PP - preservation of effectiveness of Commission's processes - serious question to be tried - balance of convenience - form of injunction - issues of judicial comity - injunction granted
Legislation:

Racial Discrimination Act 1975 (Cth) s 9

Residential Tenancies Act 1987 (Cth) ss 3, 12, 12A, 60, 62, 64, 70A, 71, 72, 73, 75A, Part V Division 4

Australian Human Rights Commission Act 1986 (Cth) ss 11, 46P, 46PB, 46PD, 46PF, 46PG, 46PH, 46PI, 46PJ, 46PO, 46PP, 46PR, Part IIB Division 1
Cases cited:

Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159

Apotex v Les Laboratoires Servier (No 2) [2012] FCA 748

Ashwin v Housing Authority [2019] WASC 144

Australian Securities and Investments Commission v Triton Underwriting Insurance Agency Pty Ltd [2003] NSWSC 1145

Carlsson v Ford [2019] FCA 584

CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345

Daccache v BOC Ltd [2020] FCA 485

Hilton v Guyot (1895) 159 US 113

Li v Minister for Immigration & Multicultural Affairs [2001] FCA 1414

Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 265 FCR 1

Wood v Lee-Joe [2013] FCCA 1665

Wotton v State of Queensland (No 5) [2016] FCA 1457
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 60
Date of hearing: 16 September 2022
Counsel for the Applicant: Mr CP Shanahan SC
Solicitor for the Applicant: SCALES Community Legal Centre
Counsel for the Respondents: Mr TE Pontré
Solicitor for the Respondents: Department of Communities, Legal & Business Services

ORDERS

WAD 173 of 2022
BETWEEN:

JOHN ABRAHAM

Applicant
AND:

HOUSING AUTHORITY

First Respondent

DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES

Second Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

16 SEPTEMBER 2022

THE COURT NOTES THAT:

1.The applicant undertakes to the Court that he will:

(a)continue to pay rent on the basis set out in the tenancy agreement dated 16 January 2020 as subsequently extended and/or varied; and

(b)continue to pay arrears of water use charges in accordance with the payment plan under which he has made payment to date.

2.The first respondent undertakes to the Court that it will join with the applicant to seek, by minute of consent or by application, a stay or adjournment sine die of Magistrates Court proceeding PER/RSTN/7669/2022 until the first to occur of the events described in s 46PP(3) of the Australian Human Rights Commission Act 1986 (Cth).

THE COURT ORDERS THAT:

1.Pursuant to s 46PP of the Australian Human Rights…

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Abraham v Housing Authority [2022] FCA 1145
Case
[2022] FCA 1145
Decision Date

CaseChat Overview and Summary

The case of Abraham v Housing Authority was heard in the Federal Court of Australia. The applicant, Mr Abraham, sought an injunction against the Housing Authority to prevent them from removing him from his residence. This application was made under s 46PP of the Australian Human Rights Commission Act 1986 (Cth), and it was heard on an interlocutory basis. The primary issue before the court was whether to grant an injunction to prevent the Housing Authority from removing Mr Abraham from his residence until the conclusion of a pending application in the Magistrates Court of Western Australia. This application was brought pursuant to a complaint of racial discrimination made to the Australian Human Rights Commission.

The court considered the purpose of s 46PP of the Australian Human Rights Commission Act, which is to preserve the effectiveness of the Commission's processes. The court found that there was a serious question to be tried, and that the balance of convenience favoured granting the injunction. The court also considered issues of judicial comity, and found that the granting of the injunction would not interfere with the pending proceedings in the Magistrates Court. The court accepted undertakings from the parties, and made orders preventing the Housing Authority from removing Mr Abraham from his residence without first giving fourteen days' written notice to his solicitors.

The court found that the application met the criteria for an injunction under s 46PP of the Australian Human Rights Commission Act. The court was satisfied that there was a serious question to be tried, and that the balance of convenience favoured granting the injunction. The court also found that the granting of the injunction would not interfere with the pending proceedings in the Magistrates Court, and that issues of judicial comity did not preclude the granting of the injunction. The court made orders preventing the Housing Authority from removing Mr Abraham from his residence without first giving fourteen days' written notice to his solicitors. The court also granted liberty to apply to vary or discharge the orders on 72 hours' advance written notice. No order as to costs was made.

Orders

Orders of the court

1. Pursuant to s 46PP of the Australian Human Rights Commission Act 1986 (Cth) and subject to paragraph 2 of these orders, the respondents must not, themselves or by their officers, employees or agents, take any step to effect the removal of the present occupants of the premises at 2/1 Skytown Place, Queens Park WA 6107 from those premises, or otherwise to obtain vacant possession of the premises, without first giving fourteen days' written notice to the applicant's solicitors.

2. Nothing in the preceding paragraph prevents the first respondent from taking any step in Magistrates Court proceeding PER/RSTN/7669/2022 up to the time of any judgment given in that proceeding.

3. There is liberty to apply to vary or discharge the above orders on 72 hours' advance written notice.

4. No order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

At the hearing of the matter on 16 September 2022, I made orders under s 46PP of the AHRCA and received undertakings from the applicant and the first respondent. These are my reasons for making those orders and accepting those undertakings.Factual background This application is interlocutory in nature and it is not necessary or desirable to make firm findings of fact. Unless otherwise indicated, what follows is merely a description of the relevant evidence adduced. Mr Abraham lives in a three bedroom home in a medium density housing complex in Queens Park, a suburb of Perth. The Housing Authority leases the premises for the purposes of providing public housing. Mr Abraham first moved in in January 2020. He did so under a tenancy agreement for a fixed six month term. The term was extended by four deeds of extension, each for a six month period. The tenancy agreement permits three to six people to live at the premises, and it was granted to Mr Abraham on the basis that two of his nephews would live there with him. However there is evidence (in an affidavit of Kate Davis, a lawyer at SCALES Community Legal Centre, affirmed 24 August 2022) that from early in Mr Abraham's tenancy, family members came to stay with Mr Abraham because they were homeless. Mr Abraham's mother, Barbara Abraham, has affirmed an affidavit dated 6 September 2022 in which she says that Mr Abraham 'is a quiet and strong man, and he always steps up to help us'. Mrs Abraham's evidence is that John has looked after three of his nephews since they were little. An officer of the Housing Authority, Sharon Bornshin, has affirmed an affidavit dated 14 September 2022 as to the circumstances of each extension of the tenancy. According to the Housing Authority's file for Mr Abraham, during the first term he breached his obligation to pay water use charges, and there was a concern about the cleanliness of the premises. There are records in respect of the second fixed term of complaints about nuisance or disruptive behaviour at the premises, and Mr Abraham failing to let officers of the Authority have access to the premises to inspect them. There are records of concerns similar to those in the first term having arisen during the third term. However it appears that none of those concerns were serious enough to lead the Housing Authority to refuse to renew the term of the tenancy. During the fourth term, there were further similar concerns, as well as records of overcrowding, of arrears of rent, and of liability for damage to the property. An initial recommendation from within the Housing Authority to renew the tenancy was altered to a recommendation not to renew it, due to concerns about people living at the property who had not been declared to the Authority, as well as high unpaid water bills and property damage. Ms Bornshin recommended that the tenancy not be renewed if the Housing Authority was not able to get access to the premises. But ultimately she was able to get access, so the recommendation not to renew fell away and the fixed term was extended for a further six months, taking the term of the tenancy to an expiry date of 20 July 2022.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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