Blanket v The Housing Authority

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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

Rayney v AW [2009] WASCA 203

Re Minister…

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Details
Case
[2014] WASC 409
Decision Date

CaseChat Overview and Summary

In the case of Blanket v The Housing Authority, the Court considered whether the Housing Authority's decision to terminate a lease was amenable to judicial review, and if so, whether procedural fairness was required and whether the decision was manifestly unreasonable. The dispute centred on the Authority's decision to terminate a lease under s 64 of the Residential Tenancies Act 1987 (WA) rather than under s 62, and the grounds for the termination. The primary legal issues revolved around the applicability of procedural fairness, the decision's reasonableness, and the appropriateness of the judicial review process. The Court had to determine whether the Authority's decision to terminate the lease was subject to judicial review and, if so, whether procedural fairness was required under the circumstances. The Court also examined whether the decision to terminate the lease was manifestly unreasonable.

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

The factual background The relevant factual background was set out in an affidavit of Mr John Pynes sworn 14 May 2013, an affidavit of Ms Lauren Moore sworn 6 February 2013 and an affidavit of Mr Aoning Li sworn 6 February 2013. There was no dispute in relation to those aspects of the factual background which are relevant to the Prerogative Writ Application and the Review Application. In this section of my reasons I deal with the following factual matters, which were set out in these affidavits:(a)The terms of the Lease;(b)The policies of the Authority and the Department in relation to disruptive behaviour by public housing tenants;(c)Allegations of disruptive behaviour at the Property; and(d)The first Termination Notice. Ms Blanket entered into the Lease on 16 December 2009. The Lease was for a periodic tenancy. The terms of the Lease included that the Authority let the Property to Ms Blanket on condition that she pay the rent and any bond instalments regularly and in all other respects met her obligations under the Lease. Ms Blanket's obligations under the Lease included that she must not allow antisocial behaviour in or around the premises, including but not restricted to loud music, aggressive, threatening or obscene language or behaviour, drunken behaviour, uncontrollable parties, fighting, acts of physical violence, unwanted entry onto neighbouring properties. The Lease also contained terms dealing with its termination by the Authority. In any case where Ms Blanket was in breach of the Lease, the Authority was required to give Ms Blanket notice describing that breach and requiring it to be remedied. Where such a notice was given, the Authority was able to give a further notice terminating the agreement not less than 14 days from the date of the notice of breach. Clause 23.4 of the Lease provided that notwithstanding these clauses in relation to termination:[T]he Authority may at any time give SIXTY (60) days notice of termination of the agreement without specifying any ground for the termination but the Authority will not exercise the right contained in this clause 23.4 in a capricious or unreasonable manner. Mr Pynes deposed that the Authority observed a Disruptive Behaviour Management Policy (the Policy). The Policy provided that the Department would investigate complaints of disruptive behaviour against public housing tenants, would apply 'strikes' against tenants where complaints of disruptive behaviour were substantiated, and would seek to evict tenants based on the severity level and rate of occurrence over a prescribed time period. The Policy provided that a 'first and final strike' would be issued following one proven incident of 'serious disruptive behaviour', and a subsequent incident of the same severity within 12 months would result in eviction proceedings. 'Serious disruptive behaviour' was defined to include aggressive and threatening acts, and activities that intentionally or recklessly caused serious disturbance to neighbours. In the case of 'minor disruptive behaviour', the Policy provided that a strike would be issued for each substantiated complaint of disruptive behaviour, and eviction proceedings would commence in the event that three strikes were issued within 12 months. 'Minor disruptive behaviour' included acts of nuisance and noise related incidents. 'Strikes' were 'valid' (that is, could be relied upon by the Authority) for 12 months after they were issued.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Decision The Decision was made on 30 December 2011 by the Acting Director General of the Department. Mr Pynes referred to the events leading to the Decision in his affidavit. It appears that as the hearing date approached for the Authority's application to the Magistrates Court in relation to the first Termination Notice, it came to the Department's attention that a number of the witnesses who were required to attend at that hearing had expressed concerns about doing so, about ongoing intimidation and threats and about fear of possible retaliation. In his capacity as a Regional Manager of the Department, Mr Pynes reviewed the matter in December 2011 and concluded that it was not appropriate to compel potential witnesses to give evidence in these circumstances. He also concluded that unless these witnesses were called, the Authority's application under s 71 of the RT Act was likely to fail. Mr Pynes deposed that he reviewed the alleged incidents of serious disruptive behaviour that had resulted in the issue of two strikes against Ms Blanket and concluded that 'the substance of the adverse findings constituting the two strikes … had previously been put to her and that, as a result, it was not necessary to again put those matters to her'. He concluded that the complaints alleged had been made out. Mr Pynes decided that it was appropriate to recommend that notice of termination be issued to Ms Blanket under s 64 of the RT Act. In accordance with the Department's policy, he sought the approval of the Acting Director General to proceed under s 64 of the RT Act. In making the Decision, the Acting Director General approved the withdrawal of the extant application to the Magistrates Court and approved the issue of a notice of termination pursuant to s 64 of the RT Act instead. On 4 January 2012, the Manager of Housing Services in the Department issued the second Termination Notice to Ms Blanket, and required Ms Blanket to deliver up vacant possession of the Property by 8 March 2012. The second Termination Notice did not specify any grounds for the termination of the Lease. On the same date, the Manager of Housing Services wrote to Ms Blanket in relation to the second Termination Notice and advised as follows:Having taken into account all matters in relation to the nature of the complaints and the Department's investigation, the decision has been made to issue you with a Notice of Termination under section 64 of the [RT Act].The attached notice gives you 60 days to vacate the premises by Thursday 8 March 2012.The Department has substantiated the following incidents of disturbances, resulting in two serious strikes issued on 26 August 2011 and 15 September 2011 in accordance with its Disruptive Behaviour Management Strategy:[There then followed a description of the incidents between 1 and 23 August 2011, and on 27 August 2011.]The Department has substantiated the incidents after taking into account your explanation of events when officers from the Department discussed these with you on 5 and 24 August 2011, and 12 September 2011; information from independent witness statements; and in some cases records of Police attendance.The Department intends to withdraw the current action before the Court, scheduled for 11 January 2012 and requires you to vacate the premises before 8 March 2012.

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).