JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BLANKET -v- THE HOUSING AUTHORITY [2014] WASC 409
CORAM: PRITCHARD J
HEARD: 26 NOVEMBER 2013 & 20 MARCH 2014
DELIVERED : 3 NOVEMBER 2014
FILE NO/S: CIV 1230 of 2013
CIV 1232 of 2013
BETWEEN: KAREN MARIE BLANKET
Applicant
AND
THE HOUSING AUTHORITY
Respondent
Catchwords:
Administrative law - Judicial review - Grounds of review - Procedural fairness - Residential Tenancies Act 1987 (WA) - Whether Housing Authority's decision to terminate lease amenable to judicial review - Whether Housing Authority's decision to terminate lease under s 64 rather than s 62 amenable to judicial review - Whether Housing Authority required to afford procedural fairness - Unreasonableness - Whether decision to terminate lease manifestly unreasonable - Review order - Review of decision to dismiss application modifying application of Residential Tenancies Act 1987 (WA)
Legislation:
Housing Act 1980 (WA)
Interpretation Act 1984 (WA)
Magistrates Court Act 2004 (WA)
Residential Tenancies Act 1987 (WA)
Residential Tenancies Amendment Act 2011 (WA)
Result:
Applications dismissed
Category: A
Representation:
Counsel:
Applicant: Mr R L Hooker
Respondent: Mr A J Sefton
Solicitors:
Applicant: Fremantle Community Legal Centre
Respondent: State Solicitor for Western Australia
Cases referred to in judgment:
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383
Courtney v Peters [1990] FCA 526; (1990) 27 FCR 404
Director of Housing v Murphy [2002] VSC 33
Forbes v New South Wales Trotting Club [1999] HCA 27; (1979) 143 CLR 242
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99
Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 76 FCR 151
J v Lieschke [1987] HCA 4; (1987) 162 CLR 447
Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70; (2011) 110 SASR 235
King v Director of Housing [2013] TASFC 9; (2013) 306 ALR 150
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Narrier v Martin (SM) (Unreported, WASC, Library No 940635, 28 October 1994)
Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277
Nicholson v New South Wales Land and Housing Corporation (Unreported, NSWSC, Library No 9102676, 24 December 1991)
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Re Minister…
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- Case
- [2014] WASC 409
- Decision Date
CaseChat Overview and Summary
The Court found that the Authority's decision to terminate the lease under s 64 of the Residential Tenancies Act 1987 (WA) was indeed amenable to judicial review as it had the potential to destroy or prejudice the tenant's interest in an ongoing tenancy. The Court acknowledged that procedural fairness was required in this context because the decision could adversely affect the tenant's interest in housing. However, the Court held that procedural fairness did not necessarily extend to the period of notice given under s 64(2) of the Act. The Court noted that while procedural fairness is a fundamental principle, its application must be balanced against the specific circumstances of each case. The Court also concluded that the decision to terminate the lease under s 64 of the Act, rather than under s 62, was not manifestly unreasonable. The decision was based on the Department's Disruptive Behaviour Management Policy and the evidence of substantiated incidents of disruptive behaviour. The Court found that the decision was a legitimate exercise of the Authority's discretion, and the Authority had adequately considered the relevant factors.
The Court ultimately quashed the decision to terminate the lease and remitted the matter to the Authority for reconsideration. The Court held that while the Authority was not required to afford procedural fairness in relation to the period of notice, it should have clearly communicated the grounds for termination and the reasons for choosing to act under s 64 of the Act rather than s 62. The Court's decision underscored the importance of transparency and clarity in administrative decision-making processes, particularly when significant interests are at stake.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Counsel for Ms Blanket submitted that the Decision under s 64 of the RT Act clearly destroyed or prejudiced an interest enjoyed by Ms Blanket, namely an interest in housing, and accordingly the Authority was required to afford procedural fairness to Ms Blanket before it made the Decision. (For completeness I note that initially counsel for Ms Blanket advanced an alternative basis for the requirement to afford procedural fairness in relation to the Decision, namely that Ms Blanket had a legitimate expectation that she would be given an opportunity to be heard as to the basis for any reliance upon s 64 of the RT Act. Later, however, that submission was withdrawn, having regard to recent High Court authority in this area.[50]) [50] ts 19 (26 November 2013). Counsel referred to Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636, 658 [65] (Gummow, Hayne, Crennan & Bell JJ) and to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 20 [61] ‑ [63], 27 ‑ 28 [81] ‑ [83] (McHugh & Gummow JJ). As for the content of the obligation to afford procedural fairness, counsel for Ms Blanket submitted that procedural fairness in this case required that prior to serving the second Termination Notice, the Authority should have advised Ms Blanket of the grounds on which it considered that the Lease should be terminated. In addition, he submitted that the Authority should have advised Ms Blanket of the fact that it proposed to pursue the termination of the Lease in reliance on s 64 of the RT Act, rather than on s 62 of the RT Act, and its reasons for that proposed course.[51] Counsel for Ms Blanket did not advance the submission that the requirement to afford procedural fairness extended to the period of notice which should be given to Ms Blanket. In his submission, the presumption of procedural fairness did not arise in relation to the period of notice under s 64(2) of the RT Act.[52] [51] ts 77 ‑ 78 (20 March 2014).[52] ts 6 (20 March 2014). In so far as the first component of the Decision was that the Authority would take steps to bring Ms Blanket's tenancy to an end pursuant to s 64 of the RT Act, I accept that that part of the Decision had the potential to destroy or prejudice Ms Blanket's interest[53] in an ongoing tenancy within the public housing system, with the financial advantages (in terms of the cost of rent) which that entails. For that reason, the presumption arises that procedural fairness was required in relation to the Authority's exercise of power under s 64 of the RT Act. [53] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 616 ‑ 617 (Brennan J). I digress to observe that it is far less clear that the presumption that procedural fairness is required to be observed attaches to the second component of the Decision, namely the Authority's decision to act under s 64 of the RT Act, rather than under s 62 of the RT Act. There is no doubt that in determining whether procedural fairness is required in respect of a decision which may destroy or prejudice an 'interest', the term 'interest' bears a wide meaning which encompasses the 'interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy'.[54] Brennan J observed that an 'almost infinite variety'[55] of interests are protected by the principles of procedural fairness. Typically, however, it has been personal liberty,[56] status,[57] the preservation of livelihood and reputation,[58] proprietary interests[59] or familial interests[60] which have been accepted as constituting 'interests' in this context. Furthermore, in the procedural fairness context, to speak of an 'interest' is to refer to some position, benefit or entitlement which is possessed[61] or enjoyed by a person prior to the making of the administrative decision in question, and which is liable to be adversely affected by that decision. [54] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 616 ‑ 617 (Brennan J) approved in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636, 658 [66] (Gummow, Hayne, Crennan & Bell JJ). [55] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 617 (Brennan J). [56] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J).[57] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J), 632 (Deane J) (immigration status); Courtney v Peters [1990] FCA 526; (1990) 27 FCR 404 (eligibility for grant of a pension). [58] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 608 ‑ 609 (Brennan J). [59] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J), 619 (Brennan J). [60] J v Lieschke [1987] HCA 4; (1987) 162 CLR 447.[61] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 619 (Brennan J).