Blanket v The Housing Authority - [2014] WASC 409

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 for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Riley v State Housing Commission, (Unreported, WASC, Library No 950406, 1 August 1995)
Roads and Traffic Authority v Swain (1997) 41 NSWLR 452
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Shepherd v Chief Executive Officer (Housing) [1999] NTSCCA 128; (1999) 154 FLR 162
State Housing Commission v Kickett (Unreported, WASC (FC), Library No 5519 AC, 24 September 1984)
Swain v Residential Tenancies Tribunal of New South Wales (Unreported, NSWSC, Library No 9504317, 22 March 1995)

Table of Contents

Introduction

1. Regulation of residential tenancies under the RT Act

2. The Authority and the Department

3. The factual background

(a) The terms of the Lease

(b) The policies of the Authority and the Department in relation to disruptive behaviour by public housing tenants

(d) The first Termination Notice

4. The Decision

5. The Termination Orders and the s 84 Decision

The s 84 Application

6. Why the Prerogative Writ Application should be dismissed

Grounds for the Prerogative Writ Application

The issues for determination

(a) Whether procedural fairness was required to be afforded to Ms Blanket having regard to the source of the Authority's power to take steps to bring about the termination of the Lease

(b) Whether the Authority was required to afford procedural fairness to Ms Blanket in relation to the Decision

Did the RT Act exclude the presumption that procedural fairness was required?
The words used in s 64
The legislative context ‑ other provisions in pt V of the RT Act
Context: Legislative Purpose
Other bases advanced in support of the conclusion that procedural fairness must be afforded in relation to decisions under s 64 of the RT Act

(d) Whether the Decision was so manifestly unreasonable as to indicate jurisdictional error

(e) Whether relief should be refused for any other reason

7. Why the Review Application should be dismissed

8. Conclusion and orders

PRITCHARD J:

Introduction

Ms Blanket is the lessee of a house owned by the Housing Authority (the Property). The Authority receives administrative assistance from the Department of Housing (the Department) to carry out its functions.
Ms Blanket occupied the Property pursuant to a residential tenancy agreement with the Authority (the Lease). Following a number of complaints which had been made to the Authority about the behaviour of various people at the Property, the Authority decided to take steps to terminate the Lease.
The termination of residential tenancy agreements is regulated by the Residential Tenancies Act 1987 (WA) (the RT Act). Initially, the Authority gave notice of termination to Ms Blanket on the ground that there had been a breach of the Lease which was not remedied (the first Termination Notice). In compliance with s 62 of the RT Act, the Authority gave Ms Blanket seven days' notice to vacate the Property. Ms Blanket failed to vacate the Property within that time.
The Authority then made an application to the Magistrates Court pursuant to the RT Act for an order terminating the Lease, and requiring Ms Blanket to deliver up vacant possession. To obtain such an order, the Authority needed to satisfy the court that the ground on which it relied (that is, Ms Blanket's failure to remedy the alleged breach of the Lease) was established, and that the breach was in all of the circumstances such as to justify termination of the Lease.[1]
[1] Residential Tenancies Act 1987 (WA) s 71(2)(b).
Shortly before the hearing of that application, officers of the Department became concerned that Ms Blanket's failure to remedy a breach of the Lease might not be able to be established because some witnesses were reluctant to give evidence. The Acting Director General of the Department (acting on behalf of the Authority) decided that the Authority should withdraw its existing application to the Magistrates Court for an order terminating the Lease, and instead should issue a fresh notice of termination to Ms Blanket (the second Termination Notice), but without specifying any ground for doing so (the Decision). In compliance with s 64 of the RT Act the Authority gave Ms Blanket 60 days' notice to vacate the Property. Ms Blanket failed to vacate the Property within that time.
The Authority then applied to the Magistrates Court for an order terminating the Lease and for possession of the Property (the s 64 Application). In cases where notice of termination is given without specifying a ground for the termination, an order terminating the tenancy agreement and requiring the tenant to deliver up vacant possession may be made by the court if it is satisfied that notice of the termination was given by the owner to the tenant and that the notice complied, and was given in accordance, with the RT Act.[2]
[2] Residential Tenancies Act 1987 (WA) s 71(2)(a).
Before that application was determined by the Magistrates Court, Ms Blanket made an application to the Magistrates Court pursuant to s 84 of the RT Act (the s 84 Application). In that application, Ms Blanket sought an order that s 64 of the RT Act be modified in its application to the Lease so that the power to terminate under s 64 could not be used in a 'capricious or unreasonable manner'. That application appears to have been made in an attempt to thwart the Authority's decision to seek to terminate the Lease without specifying any ground for doing so.
On 31 October 2012, the Magistrates Court at Fremantle made orders terminating the Lease and requiring Ms Blanket to deliver up vacant possession of the Property (the Termination Orders). The Court also dismissed the s 84 Application (the s 84 Decision).
In the two applications before this Court, Ms Blanket seeks to prevent the Termination Orders from being given effect. Ms Blanket seeks a review order pursuant to s 36 of the Magistrates Court Act 2004 (the MC Act) in respect of the Termination Orders and the s 84 Decision (the Review Application). Ms Blanket also seeks prerogative relief in the form of a writ of prohibition to prevent the Authority acting on the Termination Orders (the Prerogative Writ Application). On 13 April 2013, an order was made for the Review Application and the Prerogative Writ Application to be heard and determined at the same time.
For the reasons outlined below, each of the applications brought by Ms Blanket should be dismissed.
In these reasons for decision, I deal with the following matters:
1.Regulation of residential tenancies under the RT Act;
2.The Authority and the Department;
3.The factual background;
4.The Decision;
5.The Termination Orders and the s 84 Decision;
6.Why the Prerogative Writ Application should be dismissed;
7.Why the Review Application should be dismissed; and
8.Conclusion and orders.

Regulation of residential tenancies under the RT Act

It is convenient to commence with a brief outline of some relevant aspects of the regulation of residential tenancies under the provisions of the RT Act in force at the time of the events in question.[3] In these reasons for decision, I will refer to the RT Act as it was when the first Termination Notice and the second Termination Notice were issued, though I note that provisions of the RT Act relevant to this application have subsequently been amended by the Residential Tenancies Amendment Act 2011 (WA).[4] These amendments became operative on 30 July 2012, and it was not suggested that these amendments applied to the Prerogative Writ Application or the Review Application.
[3] In July 2012, various provisions of the Residential Tenancies Amendment Act 2011 (WA) became operative, including provisions which inserted a new div 3 of pt V of the RT Act. These provisions dealt with the termination of 'social housing tenancy agreements', which are residential tenancy agreements in respect of social housing premises, by providing additional grounds for the termination of those agreements. The parties agreed, and I accept, that these provisions were of no relevance in resolving the present applications.
[4] See, for instance, Residential Tenancies Amendment Act 2011 (WA) s 59, s 63, s 70.
The RT Act applies to all residential tenancy agreements.[5] The RT Act assumes the existence of residential tenancy agreements, but regulates certain incidents of those agreements. Subject to some exceptions, any residential tenancy agreement that is inconsistent with a provision of the RT Act, or which purports to exclude or modify the operation of the RT Act, is void and of no effect.[6]
[5] Residential Tenancies Act 1987 (WA) s 5.
[6] Residential Tenancies Act 1987 (WA) s 82.
Part IV of the RT Act confers various rights and obligations on the parties to residential tenancy agreements, namely the owner[7] and the tenant.[8]
[7] The 'owner' is a person who grants a right of occupancy under a residential tenancy agreement: Residential Tenancies Act 1987 (WA) s 3.
[8] The 'tenant' is the grantee of a right of occupancy under a residential tenancy agreement: Residential Tenancies Act 1987 (WA) s 3.
Section 84 of the RT Act permits a competent court to order that a provision of the RT Act shall not apply to, or in relation to, any residential tenancy agreement, or to order that a provision of the RT Act shall apply in a modified manner. An application for such an order may be made by any person, and the order may be made if the court considers it necessary or desirable in the circumstances.[9]
[9] Residential Tenancies Act 1987 (WA) s 84.
Part V of the RT Act deals with the termination of residential tenancy agreements. The termination of a residential tenancy agreement is prohibited, except in the circumstances set out in s 60 of the RT Act. Relevantly for present purposes, the termination of a residential tenancy agreement is permitted where the owner gives notice of termination under the RT Act and either the tenant delivers vacant possession on or after the expiration of the notice period, or a competent court, upon application by the owner, terminates the agreement under s 71 of the RT Act.[10] It is important to bear in mind that it is not the owner's service of notice of termination which terminates a residential tenancy agreement in that case. Rather, where the tenant does not deliver vacant possession as required by the notice of termination, it is the order of the court which brings about the termination of the agreement.
[10] Residential Tenancies Act 1987 (WA) s 60(1)(a).
The RT Act permits an owner to take steps to bring about the termination of a residential tenancy agreement in certain circumstances. Two of those circumstances are relevant to this case. First, s 62 of the RT Act permits an owner to give a tenant notice of termination of a residential tenancy agreement on the ground that there has a breach of that agreement by the tenant and the breach has not been remedied.[11] Leaving to one side cases in which the breach arises from a failure to pay rent, s 62(3) requires that at least 14 days before giving the notice of termination, the owner must give the tenant a notice specifying the breach and requiring that it be remedied.[12] If the breach is not remedied, then the owner must give the tenant at least seven days' notice of the date by which the premises is to be vacated.[13]
[11] Residential Tenancies Act 1987 (WA) s 62(1).
[12] Residential Tenancies Act 1987 (WA) s 62(3).
[13] Residential Tenancies Act 1987 (WA) s 62(2).
Secondly, s 64 of the RT Act permits an owner to give a tenant notice of termination of a residential tenancy agreement without specifying any ground for the notice. In such a case, the tenant must be given not less than 60 days' notice of the date by which the premises is to be vacated.
Where an owner gives notice of termination to the tenant and the tenant fails to deliver up possession by the date specified in the notice, s 71 of the RT Act permits the owner to apply to a competent court for an order terminating the agreement and an order for possession of the premises.[14] Subsection 71(2) of the RT Act sets out the matters about which the court must be satisfied before making such orders. When both the first Termination Notice and the second Termination Notice were issued, s 71(2) was in the following terms:
(2)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 owner 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 owner upon a particular ground prescribed by this Act, that the owner 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.
[14] Residential Tenancies Act 1987 (WA) s 71(1).
There was no dispute that the Lease is a residential tenancy agreement for the purposes of the RT Act. There was also no dispute that the Magistrates Court is a 'competent court' for the purposes of s 71(2) of the RT Act. There are various requirements for the form of an owner's notice of termination.[15] There was no issue about compliance with these requirements in this case, and there was no dispute that, although s 71(2) is subject to a number of qualifications,[16] none of these were relevant in this case.
[15] Residential Tenancies Act 1987 (WA) s 61.
[16] See especially s 71(3) and s 71(4) of the Residential Tenancies Act 1987 (WA).
It was also not in issue that s 71(2)(b) of the RT Act applies where notice of termination is given on a ground prescribed by the RT Act (such as breach of a residential tenancy agreement, pursuant to s 62 of the RT Act) but does not apply to a case where notice of termination is given by the owner without specifying any ground (under s 64 of the RT Act).

The Authority and the Department

Before turning to outline the background facts in more detail, it is also appropriate to mention the position of the Authority, and its relationship with the Department. The Authority was established under the State Housing Act 1946 (WA) and is continued in existence by the Housing Act 1980 (WA).[17] It is a body corporate[18] which is an agent of the Crown in right of the State.[19] The Authority has 'all such powers, authorities and discretions, and may do all such acts and things, as a private person in the State has or may exercise or do',[20] including the power to lease real and personal property.[21] The Authority has an express power to lease a house to any 'eligible person',[22] on a weekly or other periodic tenancy, or for such period as the Authority thinks fit,[23] and on such terms as the Authority thinks fit which shall be set out in a tenancy agreement in an approved form.[24]
[17] Housing Act 1980 (WA) s 6(1).
[18] Housing Act 1980 (WA) s 7(1).
[19] Housing Act 1980 (WA) s 7(3).
[20] Housing Act 1980 (WA) s 12(b).
[21] Housing Act 1980 (WA) s 12(c).
[22] Housing Act 1980 (WA) s 28. An eligible person is a person who satisfies the conditions of eligibility from time to time determined by the Authority and approved by the Minister: see Housing Act 1980 (WA) s 5(2).
[23] Housing Act 1980 (WA) s 29(1).
[24] Housing Act 1980 (WA) s 29(2).
As I have observed, the Authority is able to make use of the services of officers or employees in the Public Service, and may make use of the facilities of a department of the Public Service.[25] This enables the Authority to obtain assistance in the performance of its functions from officers of the Department. The documents relating to the various decisions relevant to the present proceedings suggest that some of those decisions were made by officers of the Department, apparently on behalf of the Authority. No point was taken about that issue, and for present purposes, I have proceeded on the understanding that decisions made by officers of the Department in relation to the Lease and its termination were done by those officers for and on behalf of the Authority.
[25] Housing Act 1980 (WA) s 18A(1), (2).
Subject to some exceptions which are not presently relevant, the RT Act binds the Crown.[26] However, the RT Act permits the Governor, by regulation, to provide that a provision of the RT Act shall not apply to or in relation to, or shall apply in a modified manner to, any prescribed person or agency acting on behalf of the Crown.[27] No such regulations have been made in relation to the Authority, and there was no dispute that in the circumstances the subject of these proceedings the Authority was bound by the provisions of the RT Act.
[26] Residential Tenancies Act 1987 (WA) s 4.
[27] Residential Tenancies Act 1987 (WA) s 6(c).

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.

(a) The terms of the Lease

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.

(b) The policies of the Authority and the Department in relation to disruptive behaviour by public housing tenants

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.
The Department's internal policy documents gave examples of these categories of disruptive behaviour. Examples of serious disruptive behaviour included threats to the health or safety of a person, threatening language directed at neighbours, drunken behaviour which impacted on other residents, car burnouts, dangerous driving and hoon behaviour. The Department's policy was that the response to such behaviour would be to issue a strike, accompanied by a notice of breach of the tenancy agreement.
Policies were also in place in relation to the circumstances in which a residential tenancy agreement would be terminated in accordance with s 62 of the RT Act (upon the ground of breach of the agreement) or in accordance with s 64 of the RT Act. The guidelines in relation to terminations pursuant to s 64 of the RT Act contemplated that a lease would be terminated without any ground being specified only where termination of the tenancy was considered necessary but was not possible through other legal means. Examples of such cases included those involving disruptive behaviour in circumstances where it was anticipated that a court order requiring the tenant to vacate was unlikely to be obtained, such as in cases where witnesses were not prepared to give evidence in court for reasons including fear for their safety or health, following substantiated threats of violence.
I note that the Department's guidelines in relation to terminations in accordance with s 64 of the RT Act expressly referred to the need to 'ensure, to the greatest extent possible, that the tenant is not disadvantaged by the denial of an opportunity to argue their case in court'. Amongst other things, those guidelines required that a written outline of the Department's case for considering termination be provided to the tenant (including references to the evidence relied upon, and process followed, in deciding to issue a strike), that all matters disputed by the tenant be considered, weighed against other evidence, and further enquiries made if necessary, that the tenant be given the opportunity to present their case in person, and that the decision to proceed under s 64 should be approved by the Director General of the Department.

(c) Allegations of disruptive behaviour at the Property

On 26 August 2011, a Senior Case Manager in the Department issued Ms Blanket with a Notice of Breach of Agreement pursuant to s 62 of the RT Act (the Notice of Breach). The conduct said to have constituted a breach of the Lease was set out. In fact, it encompassed five groups of incidents which occurred on various dates between May 2011 and August 2011. Ms Blanket was required to remedy the breach of the Lease within 14 days of the Notice of Breach.
The Senior Case Manager wrote to Ms Blanket on the same date confirming that the Notice of Breach related to five incidents of serious disruptive behaviour which had been discussed with Ms Blanket at a meeting on 24 August 2011. The letter advised that these incidents had been verified following an investigation by the Department. The letter advised Ms Blanket that this was her first 'strike' and that if further serious disruptive behaviour occurred at the Property within the following 12 months, the Department would take steps to terminate the Lease.
It appears that the Department received further complaints in respect of Ms Blanket's tenancy during August 2011. On 30 August 2011, a Case Manager at the Department wrote to Ms Blanket requesting that she attend a meeting with officers of the Department to discuss complaints of disruptive behaviour said to have occurred on 20 and 27 August 2011. The incidents said to have occurred on those dates were described in that letter. The conduct said to have occurred on both occasions appears to have been of a similar nature to that which was the subject of the Notice of Breach.
Officers of the Department met with Ms Blanket on 12 September 2011. At that meeting, the complaints received by the Department in relation to the disruptive behaviour on 27 August 2011 were discussed, and Ms Blanket offered her version of the events.
A Case Manager subsequently considered the information available to the Department, including information provided by independent witnesses, and information provided by Ms Blanket. The Case Manager concluded that a loud disturbance took place at the Property on 27 August 2011, including arguing, screaming, shouting, the use of offensive language, and threatening behaviour towards neighbours. The Case Manager also concluded that the incident was one of serious disruptive behaviour, and that a second strike, accompanied by a Notice of Termination should be issued to Ms Blanket.

(d) The first Termination Notice

On 15 September 2011, an officer of the Authority issued the first Termination Notice to Ms Blanket. The first Termination Notice required Ms Blanket to deliver up vacant possession of the Property by 30 September 2011. The ground for termination of the Lease was said to be that Ms Blanket had 'breached a term of the agreement and that the breach had not been remedied'. The notice described the conduct said to have constituted the breach. It was said to have occurred on 27 August 2011.
It thus appears that the Authority determined to take steps to terminate the Lease on the basis that Ms Blanket had failed to remedy the breach of the Lease which had been notified in the Notice of Breach. That failure to remedy was said to have arisen by virtue of further conduct which itself constituted a breach of the Lease, and which occurred on 27 August 2011.
This first Termination Notice was accompanied by a letter to Ms Blanket from a Case Manager in the Department. The Case Manager advised Ms Blanket that the behaviour which occurred on 27 August 2011 had been discussed with her at the meeting on 12 September 2011 and verified following an investigation by the Department. The Case Manager also advised that because there had been serious incidents of disruptive behaviour at the Property on more than one occasion, and that Ms Blanket had previously been issued with a strike for serious disruptive behaviour, the Department had taken legal action to terminate the Lease.
Ms Blanket did not deliver up possession of the Property by 30 September 2011 as required under the first Termination Notice.
On 5 October 2011, the Authority made an application to the Magistrates Court pursuant to s 71 of the RT Act for an order for termination of the Lease, and for possession of the Property. The reasons for that application were said to be that a notice of breach of the Lease for disruptive behaviour had been served on Ms Blanket on 26 August 2011 and was not rectified within 14 days, and that Ms Blanket was still in occupation.
The Authority's application was subsequently listed for hearing on 11 January 2012. However, following the making of the Decision (which I discuss below), the Authority withdrew this application to the Magistrates Court.

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.

The Termination Orders and the s 84 Decision

Ms Blanket failed to vacate the Property by 8 March 2012.
On 12 March 2012, the Authority filed an application in the Magistrates Court pursuant to s 71 of the RT Act, seeking orders terminating the Lease and for possession of the Property.
The Authority's application was heard on 17 October 2012. On 31 October 2012, the learned magistrate delivered her reasons for decision in respect of that application. The learned magistrate concluded that it was
[N]ot, in my view, unreasonable for the Housing Authority to use section 64. That is a decision entirely within the discretion of the owner and the owner ought not therefore be deprived of applying to the court for a termination of the agreement without grounds. This court has no discretion to refuse to make orders where the owner has served a notice of termination without grounds under section 64 of the [RT Act].
The learned magistrate made orders terminating the Lease and requiring Ms Blanket to give vacant possession of the Property. The Authority has refrained from seeking to enforce the court's orders pending the resolution of the present proceedings.

The s 84 Application

On 28 March 2012, Ms Blanket filed the s 84 Application in the Magistrates Court seeking the following order:
Order under s 84 of the [RT] Act to modify s 64 of the [RT] Act to include clause 23.4 of the Tenancy Agreement which states:
23.4Notwithstanding clauses 23.1, 23.3 and 23.4, the 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.
The reasons given for the s 84 Application were:
Applicant's tenancy is being terminated under s 64 of the [RT] Act by the respondent. Applicant submits that the respondent is utilising the section in an unreasonable manner contrary to the tenancy agreement.
The s 84 Application was heard on 17 October 2012. The learned magistrate delivered her reasons for decision in respect of that application on 31 October 2012. She noted that the s 84 Application sought to modify s 64 of the RT Act so as to give effect to clause 23.4 of the Lease, 'so that in effect, the Authority would be precluded from using s 64 in a capricious or unreasonable manner'. The learned magistrate dismissed the s 84 Application for the following reasons:
Had Parliament intended to modify section 64 by allowing the Housing Authority to restrict the operation of that section by giving effect to clause 23.4, then it is my view the governor by regulation would have exercised the power contained in section 6 of the [RT Act] to exclude the Housing Authority from the operation of the Act, but that has not occurred and so pursuant to section 4 [the RT Act] binds the Crown, which obviously includes the Department of Housing.
Clause 23.4 gives meaning to the restriction already contained in [s 71(4) of the RT Act]. In other words, clause 23.4 merely refers to the restriction already contained in section 71. Otherwise, in my view, clause 23.4 would be void for going beyond the terms of the Act, contrary to [s 82(2)].[28]
[28] Annexure AL2 to the affidavit of Aoning Li sworn 6 February 2013.

Why the Prerogative Writ Application should be dismissed

Grounds for the Prerogative Writ Application

In the Prerogative Writ Application, Ms Blanket seeks an order for a writ of prohibition against the Authority
[F]or the purpose of the Housing Authority being prohibited from acting upon the [Termination Orders],
on the ground that the Housing Authority acted ultra vires, alternatively committed jurisdictional error, in making its decision to bring an application under s 64 of the [RT Act] … without specifying any ground therefor … when the [Decision]:
(a)Was made by the Housing Authority in breach of the principles of procedural fairness to [Ms Blanket].
Particulars
(i)Prior to the making of the [Decision] the [Authority] did not accord [Ms Blanket] any hearing, alternatively any fair hearing, as to whether an application under s 64 of the [RT] Act ought to be made by the [Authority].
(ii)In making [the s 64 application] the [Authority] intended to seek an exercise of jurisdiction from that Court that did not accord [Ms Blanket] a hearing as to any grounds, reasons, or other basis for terminating the [Lease];
(iii)Upon the return of the [s 64 application] before the Magistrates Court on 17 and 31 October 2012, [Ms Blanket] was not in fact accorded a hearing as to any grounds, reasons, or other basis for terminating the [Lease].
(iv)As a consequence of the [Termination Orders] purportedly exercising the jurisdiction of the Magistrates Court under s 64 and s 71(2) of the [RT] Act, [Ms Blanket] is in peril of being compelled to deliver up vacant possession of the [Property] to the [Authority] (and hence suffer eviction) unless the [Authority] is restrained from enforcing those orders.
(b)Was manifestly unreasonable.
Particulars
Particulars (a)(i) ‑ (iv) above are repeated.
Ms Blanket also seeks a declaration to the effect that:
(a)The Decision is of no effect at law by reason of having been made ultra vires, alternatively void for jurisdictional error;
(c)The [Termination Orders] are, likewise, of no effect at law.

The issues for determination

The grounds for the Prerogative Writ Application, and the Authority's response to those grounds, raise five issues for consideration:
(a)Whether procedural fairness was required to be afforded to Ms Blanket having regard to the source of the Authority's power to take steps to bring about the termination of the Lease;
(b)Whether the Authority was required to afford procedural fairness to Ms Blanket in relation to the Decision;
(c)Whether procedural fairness was, in fact, afforded to Ms Blanket;
(d)Whether the Decision was so manifestly unreasonable as to indicate jurisdictional error; and
(e)Whether relief should be refused for any other reason.

I deal with each of these issues in turn.

(a) Whether procedural fairness was required to be afforded to Ms Blanket having regard to the source of the Authority's power to take steps to bring about the termination of the Lease

Counsel for the Authority submitted that the Authority was not required to afford procedural fairness to Ms Blanket in relation to the Decision because the Decision involved the exercise of a contractual right under the Lease, rather than an exercise of statutory power that was amenable to the rules of procedural fairness.[29] This submission was made only in relation to Ms Blanket's contention that she was denied procedural fairness in relation to the Decision and was not expressly put as a submission that the Decision was not amenable to judicial review. However, it is difficult to see why the argument, if it is sound, would be limited in its effect to the requirement to afford procedural fairness alone.
[29] Respondent's written submissions, 22 November 2013 [26] citing State Housing Commission v Kickett (Unreported, WASC (FC), Library No 5519 AC, 24 September 1984) 8 ‑ 9 and Forbes v New South Wales Trotting Club [1999] HCA 27; (1979) 143 CLR 242, 278 (Aickin J).
The submission made by counsel for the Authority was not developed in detail, nor responded to in detail, in the course of the written submissions or the hearing. Given the conclusions I have reached on the other grounds of the Prerogative Writ Application, it is somewhat tempting to leave this issue for determination on another day, particularly as the limits of Australian administrative law principles (especially those concerning the extent to which prerogative relief will be available in relation to decisions made by the state or its agencies, in the exercise of executive power) are far from settled.[30] However, given the submission advanced goes to the heart of the Court's jurisdiction to grant relief in respect of the Decision, it is appropriate that I determine it.
[30] Some of these developing areas of the law are helpfully discussed in Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, 2013) [3.60], [3.110]; see also Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 76 FCR 151, 179 (Finn J); Khuu & Lee Pty Ltd v Corporation of the City of Adelaide [2011] SASCFC 70; (2011) 110 SASR 235, 239 ‑ 240 [17] (Vanstone J, Sulan & Peek JJ agreeing), special leave on this point refused: [2012] HCATrans 108.
In my view, the Decision cannot properly be characterised as one which involved solely the exercise of a contractual right. Although the Lease permitted the Authority to give a notice of termination, the Decision was ultimately made by the Authority pursuant to provisions of the RT Act, and the Decision depended for its legal efficacy upon those provisions. I have reached that view for three reasons.
First, it is necessary to start by closely assessing the nature of the power exercised by the Authority. In my view, the Decision had two components. It constituted a determination that the Lease should be brought to an end, and a determination that the Authority should abandon its reliance on the first Termination Notice and instead pursue an avenue which was available under the RT Act for obtaining an order to terminate the Lease, by issuing a notice of termination without specifying any grounds for doing so, pursuant to s 64 of the RT Act.
It was not open to the Authority to act on either determination solely in the exercise in its contractual entitlements under the Lease. The Lease contains a power for the Authority to give notice of termination, including notice of termination without specifying any ground (clauses 23.3 and 23.4 of the Lease). However, it was not possible for the Authority to actually terminate the Lease in the exercise of any contractual power.[31] That is because the RT Act prohibits the termination of a residential tenancy agreement except in certain circumstances. The applicable exception in this case was 'where the owner … gives notice of termination under this Act' and 'a competent court, upon application by the lessor, terminates the agreement under section 71'.[32] That is, the notice of termination (if it complies with and is given in accordance with the RT Act[33]) is merely the first step in the process by which a residential tenancy agreement may be brought to an end. (The second step in a case of the present kind is that the tenant delivers up vacant possession, or alternatively that a court makes an order terminating the agreement.[34])
[31] Riley v State Housing Commission, (Unreported, WASC, Library No 950406, 1 August 1995) 8, 10 ‑ 11 (Owen J).
[32] Residential Tenancies Act 1987 (WA) s 60(1)(a)(ii).
[33] Residential Tenancies Act 1987 (WA) s 71(1), s 71(2)(a).
[34] Residential Tenancies Act 1987 (WA) s 60(1)(a), s 71(2).
Although the Authority may, under the terms of the Lease, give notice of termination, its power to do so, in such a way as to result in the valid termination of a residential tenancy agreement under the RT Act, necessarily derives from the RT Act. This is not a case where the rights and liabilities of Ms Blanket and the Authority, in relation to the termination of the Lease, are determined solely by the terms of the Lease. Given the terms of s 60(1) of the RT Act, at the very least reliance on s 64(1) of the RT Act was necessary to permit the Authority as the owner of the Property to give the notice of termination without specifying any ground for that notice.
A possible counter argument might be that s 64(1) of the RT Act merely creates an exception from the prohibition on the termination of a residential tenancy agreement which is contained in s 60(1) of the RT Act. However, that argument should be rejected. Subsection 64(2) expressly contemplates that notice of termination will be given 'under this section'. Furthermore, the power to give notice of termination without specifying a ground for that notice will be available to an owner irrespective of the terms of the residential tenancy agreement between that owner and the tenant. An agreement which sought to exclude or modify s 64 of the RT Act would be void and of no effect.[35]
[35] Residential Tenancies Act 1987 (WA) s 82.
For these reasons, the better view of s 64(1) is that it constitutes a source of power pursuant to which an owner may give notice of termination to a tenant. In this case, s 64(1) of the RT Act (together with s 60(1) of that Act) clothed the second Termination Notice with a legal effect which it otherwise would not have had.
Secondly, the second Termination Notice expressly stated that it was given in the exercise of the Authority's right to give notice without specifying any ground for doing so, pursuant to s 64 of the RT Act. Nothing in the second Termination Notice suggested that that notice was given, or given solely, in reliance on the Authority's power under clause 23.4 of the Lease.
Thirdly, in support of his submission, counsel for the Authority relied on two decisions: State Housing Commission v Kickett[36] and Forbes v New South Wales Trotting Club Ltd.[37]Neither of those decisions constitutes an authority which is contrary to the conclusion I have reached. It is appropriate to refer in particular to Kickett.That decision concerned the validity of a notice to quit issued by the State Housing Commission to a tenant. A magistrate at first instance had accepted that the notice to quit was invalid because it was given without the tenant first being afforded natural justice in relation to the grounds for the termination of the tenancy. On appeal, Burt CJ and Wallace J both resolved by the appeal by concluding that the notice to quit was invalid because it was issued by a person without authority to do so. Brinsden J agreed with that conclusion. His Honour also considered the ground of appeal concerning natural justice. In doing so, he concluded that in issuing the notice to quit, the State Housing Commission was exercising a contractual right, rather than a statutory right. However, the legislation in force at the time was rather different from the legislation in force at the time of the events in the present case.
[36] State Housing Commission v Kickett (Unreported, WASC (FC), Library No 5519 AC, 24 September 1984) 8 ‑ 9.
[37] Forbes v New South Wales Trotting Club [1999] HCA 27; (1979) 143 CLR 242, 278 (Aickin J).
Counsel for both parties also drew to my attention a number of other authorities which were thought to be of assistance, if only by analogy. Two of those authorities concerned public housing cases from this State: Narrier v Martin (SM)[38] and Riley v State Housing Commission.[39] Neither is determinative of the present issue.
[38] Narrier v Martin (SM) (Unreported, WASC, Library No 940635, 28 October 1994).
[39] Riley v State Housing Commission (Unreported, WASC, Library No 950406, 1 August 1995) 8, 10 ‑ 11 (Owen J).
Narrier was a decision on an application for an order nisi for a writ of certiorari. The decision is of limited relevance because it is distinguishable on its facts. Further, in so far as Commissioner Martin (as his Honour was then) expressed the view, in granting the order nisi, that the State Housing Commission was required to comply with the requirements of natural justice in making a decision to terminate a tenancy, his Honour appears to have relied on legislative provisions which are no longer in force.[40]
[40] Narrier v Martin (SM) (Unreported, WASC, Library No 940635, 28 October 1994) 8.
Riley concerned an application by a tenant for an injunction to prevent the State Housing Commission from evicting the tenant on the grounds of breach of the tenancy agreement arising from unpaid rent and unsocial behaviour at the leased premises. A magistrate had relied upon the ground of unpaid rent as a basis for granting an order terminating the tenancy, despite the fact that rental arrears had been paid by that date. In declining to grant the injunction, Owen J did not have to consider the source of the Housing Commission's power to issue the notice of termination in that case. In so far as the application raised a question of procedural fairness, Owen J concluded that the plaintiff could succeed only if he could establish that he had been denied procedural fairness as to whether he should be granted a fresh tenancy, a proposition which his Honour doubted had merit.[41]
[41] Riley v State Housing Commission (Unreported, WASC, Library No 950406, 1 August 1995) 8, 11 ‑ 12 (Owen J).
Counsel also drew my attention to a number of authorities from other jurisdictions, dealing with the termination of tenancy agreements in the public housing context. Most are of limited utility given their factual or legislative differences when compared with this case.[42]
[42] See Shepherd v Chief Executive Officer (Housing) [1999] NTSCCA 128; (1999) 154 FLR 162; Roads and Traffic Authority v Swain (1997) 41 NSWLR 452; Swain v Residential Tenancies Tribunal of New South Wales (Unreported, NSWSC, Library No 9504317, 22 March 1995).
Two decisions in particular, however, should be mentioned. The first is Nicholson v New South Wales Land and Housing Corporation,[43] the facts of which bear some similarities to those here. Notice of termination was given to tenants on the ground that their rent was in arrears. However, at the time the tenants were paying off the arrears of rent. Subsequently the Housing Corporation withdrew that notice of termination and issued another notice, in reliance on s 58 of the Residential Tenancies Act 1987 (NSW), which permitted notice of termination to be given without providing any reason for doing so, on 60 days' notice to the tenant. The Housing Corporation submitted that it was not required to afford procedural fairness because the decision to issue the notice of termination was a purely administrative decision which was made in respect of a right arising under the tenancy agreement and not under the legislation. Badgery‑Parker J appeared, at least implicitly, to accept that the Housing Corporation had a contractual right to terminate the tenancy without giving reasons for doing so. However, his Honour conceded that the decision which was challenged was not the decision to terminate the lease but rather the preceding decision by the Housing Corporation that its contractual right should be exercised. Accordingly, the decision does not constitute an authority which is contrary to the conclusion which I have reached.
[43] Nicholson v New South Wales Land and Housing Corporation (Unreported, NSWSC, Library No 9102676, 24 December 1991).
I should also mention King v Director of Housing.[44]The case concerned an application for judicial review of decisions by the Director of Housing not to extend or renew Ms King's tenancy and to serve her with a notice to vacate the premises upon the expiry of her lease. At first instance, Blow J held that the decisions were not reviewable under the Judicial Review Act 2000 (Tas) because neither was a decision 'made under an enactment'. The Court of Appeal dismissed the appeal, on the basis that the decision to serve the notice to vacate was a decision that any landlord could make, rather than one which derived its force from the Homes Act 1935 (Tas). That decision is also factually and legally distinguishable from the present case.
[44] King v Director of Housing [2013] TASFC 9; (2013) 306 ALR 150.
For the same reason, analysis by the High Court of the meaning of the phrase 'a decision of an administrative character made ... under an enactment'[45] (or similar) in judicial review legislation, does not assist in resolving this case.
[45] Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99; Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277.
In my view, the Decision is amenable to judicial review.

(b) Whether the Authority was required to afford procedural fairness to Ms Blanket in relation to the Decision

It is well established that when a statute confers power to destroy or prejudice a person's rights or interests, the principles of natural justice regulate the exercise of that power. Observance of the principles of natural justice is a condition which attaches to the statutory power and governs its exercise, so that a failure to fulfil that condition will result in an invalid exercise of power.[46]
[46] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 258 ‑ 259 [11] ‑ [13] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).
However, there is no doubt that the Parliament can exclude the principles of natural justice in relation to the exercise of a statutory power. Given the importance of those principles, their exclusion will require 'plain words of necessary intendment'[47] and cannot be assumed, or spelled out, from 'indirect references, uncertain inferences or equivocal considerations'[48] or from the mere presence in a statute of rights consistent with some natural justice principles.[49]
[47] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ), Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 259 [14] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).
[48] Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396 (Dixon CJ & Webb J) cited in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 259 [14] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).
[49] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Deane & McHugh JJ), Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 259 [14] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).
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).

In the present case, I am not persuaded that Ms Blanket had an 'interest' in whether the Authority relied upon s 62 of the RT Act rather than s 64 of the RT Act, as the basis for issuing a notice of termination. There is nothing to suggest that Ms Blanket was entitled to have the Authority utilise s 62 of the RT Act in the first instance. I am unaware of any decision which would support the conclusion that in this respect Ms Blanket had an 'interest' capable of warranting the conclusion she should be given an opportunity to be heard as to whether the Authority should proceed under s 64 of the RT Act.

Did the RT Act exclude the presumption that procedural fairness was required?

The Authority's case was that the RT Act, and s 64 in particular, clearly evinced an intention that an obligation to afford procedural fairness does not arise in relation to the making of a decision to issue a notice of termination under s 64. Counsel for Ms Blanket submitted that s 64 of the RT Act did not exclude the requirement to afford procedural fairness. His submissions, in summary, were that the cases suggest that very clear language is required before the presumption of procedural fairness will be excluded, and that s 64 does not contain the plain words of necessary intendment which are required in order to exclude the requirement for procedural fairness. In addition, he submitted that an owner will always have a ground for seeking to terminate a tenancy agreement, even if that ground is simply that the owner wants possession of the premises. Consequently, a requirement to afford procedural fairness would serve the purpose of enabling the tenant to draw to the owner's attention any matters relevant to the termination, irrespective of whether those grounds are attributable to the tenant or the tenant's conduct.[62]
[62] ts 4 (20 March 2014).
I am unable to accept these submissions, for the reasons set out below.
The task of ascertaining whether the RT Act excludes the requirement to afford procedural fairness to a tenant before a notice of termination is given under s 64 involves an exercise in statutory construction. That exercise starts with a consideration of the ordinary meaning of the words in s 64, considered within their context. That context includes matters such as the provisions of the Act as a whole and how they work together, and the purpose to which the Act was directed.[63] In my view, on its proper construction, the RT Act clearly evinces the Parliament's intention that the Authority is not required to afford procedural fairness to a tenant when it proposes to issue a notice of termination under s 64 of the RT Act.

The words used in s 64

[63] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby & Hayne JJ); AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390, 398 [10], 402 [24] (French CJ, Gummow, Hayne, Kiefel & Bell JJ); see further Thiess v Collector of Customs [2014] HCA 12 [22] ‑ [23] (the Court); Lacey v Attorney‑General (Qld) [2011] HCA 10; (2011) 242 CLR 573, 591 ‑ 592 [43] ‑ [44] (French CJ, Gummow, Crennan, Kiefel & Bell JJ).

Subsection 64(1) permits an owner to give notice of termination of an agreement to the tenant 'without specifying any ground for the notice'. The word 'specify' means to mention specifically or definitely[64] while one of the ordinary meanings of the word 'ground' is 'the foundation or basis on which [an] ... action rests; motive; reason'.[65] In other words, s 64 of the RT Act permits an owner to give notice of termination to a tenant without telling the tenant of the reason (if any) for giving the notice. The Parliament has thus made clear that the reason why the owner seeks to terminate the agreement is irrelevant under s 64 of the RT Act.
[64] Macquarie Dictionary, full online edition, definition 1.
[65] Macquarie Dictionary, full online edition, definition 5.
Further, I note that s 64 does not contain a temporal limitation. That is, it expressly permits notice of termination to be given to a tenant without any specification - at any prior time ‑ of the reasons for the notice being given.
Counsel for Ms Blanket submitted that there were three alternative constructions of the words 'without specifying any ground' in s 64 of the RT Act. First, he submitted that those words could indicate that there existed one or more grounds for an owner to seek to terminate a residential tenancy agreement but that it was not necessary for the owner, in giving notice of termination, to specify any such ground or grounds. Secondly, those words could mean that there may be a ground for the termination which is related to the tenant, although that ground may not necessarily be based on conduct or alleged conduct of the tenant, but whatever the ground, it does not need to be specified in the notice of termination. Finally, counsel submitted that the third possible meaning of s 64 is that there does not need to exist any ground for the termination at all ‑ that is, that the owner need not have directed his or her mind to any particular ground for termination, or anything done by the tenant, to warrant the termination of the residential tenancy agreement. However, counsel for Ms Blanket submitted that the latter meaning was not tenable because inevitably there will be some motivation or stimulus for an owner to be driven to try and achieve the termination of a residential tenancy agreement.
Counsel for Ms Blanket submitted that on either of the other two possible constructions of s 64, section 64 simply relieved the owner of any obligation to specify those reasons in the notice of termination. He nevertheless submitted that the requirement to afford procedural fairness would have utility because it would enable the tenant to draw to the owner's attention any matter which might be relevant to the owner's decision to seek to terminate the agreement.
I am unable to accept that submission. I am unable to envisage any rational explanation for why the Parliament would have permitted notice of termination to be given without setting out the reason for doing so (under s 64), if it intended that that reason would, as an incident of procedural fairness, be required to be given to the tenant before the owner made the decision to give the notice of termination.
In my view, the words used in s 64 evince an intention that no requirement for procedural fairness, which encompasses a requirement to identify the reasons for seeking to terminate the tenancy agreement, is required before a decision is made under s 64 of the RT Act.

The legislative context ‑ other provisions in pt V of the RT Act

The context in which s 64 appears also supports the conclusion that the RT Act manifests an intention to exclude procedural fairness in respect of decisions made under s 64. That context includes the terms of s 62 and s 63 of the RT Act. Each of those provisions permits notice of termination to be given by specifying a particular ground for doing so. It is also apparent from s 61(e) of the RT Act that the ground (if any) on which notice of termination is given is to be set out, and particularised, in the notice of termination itself. This context also underscores the absence of any rational explanation for why the Parliament would have permitted notice of termination to be given under s 64 without setting out any reason for doing so, if that reason otherwise had to be given in the course of affording procedural fairness to the tenant.
A further important contextual consideration lies in s 71 of the RT Act.
Counsel for Ms Blanket submitted that s 71(2) did not detract from the conclusion that procedural fairness must be afforded in relation to a decision to seek termination under s 64. He submitted that under s71(2)(a) of the RT Act, the court must be satisfied that notice of termination was given by the owner and that it complied with, and was given in accordance with, the RT Act, and that that requirement must be understood as encompassing satisfaction that procedural fairness has been afforded to the tenant.
Subsection 71(2) sets out the matters about which the court must be satisfied before it makes an order terminating a tenancy agreement and for possession of the premises. Subsection 71(2)(a) requires that the court be satisfied that the notice of termination 'complied with and was given in accordance with this Act'. That appears to be a reference both to compliance with the formal requirements of a notice of termination,[66] and compliance with any other requirements such as the notice period,[67] the period which must be given to the tenant to remedy a breach,[68] and other requirements for a valid notice.[69] These requirements must be satisfied in respect of every notice of termination.
[66] See Residential Tenancies Act 1987 (WA) s 61.
[67] See, for example, Residential Tenancies Act 1987 (WA) s 62(2), s 64(2).
[68] Residential Tenancies Act 1987 (WA) s 62(3).
[69] See, for example, Residential Tenancies Act 1987 (WA) s 62(4).
In contrast, s 71(2)(b) focuses expressly on those cases where notice of termination is given on one of the grounds prescribed by the RT Act. In those cases, the court must be satisfied that the owner has established that ground, and in the case of a breach of a term of the agreement, that the breach is such as to justify termination of the agreement. Subsection 71(2)(b) contemplates that there will be cases where notice of termination is given without relying on a particular ground prescribed by the RT Act. (That can only occur under s 64 of the RT Act.) In those cases, it is not necessary for the court to be satisfied that any ground for the notice is established because any such ground (if there was one) is irrelevant to the termination.
Again, I have been unable to identify any rational explanation for why the Parliament would have intended that an owner's reason for seeking to terminate an agreement, be provided as an incident of procedural fairness in relation to s 64, when any such reason is irrelevant for the purposes of the court's inquiry under s 71(2) of the RT Act.

Context: Legislative Purpose

The conclusions that an owner's reason for seeking the termination of an agreement is irrelevant when notice is given under s 64, and that procedural fairness is not required in respect of a decision made under s 64 of the RT Act, are also supported by the legislative purpose which underlies pt V of the RT Act. There are two aspects of that legislative purpose which are presently relevant.
First, it is apparent that the purpose of pt V is to strike a balance between two fundamentally important considerations. On the one hand, there is the position of the owner of the freehold estate in land, who is entitled to enjoy the 'rights' of ownership, including the right to determine the use to which that land is to be put, and for whom the land may represent a significant capital investment. On the other hand, there is the position of the tenant, for whom the certainty and security of residential accommodation will affect, perhaps to a very significant extent, their quality of life. I note that in the case of a tenant living in public housing, the certainty and security of that residential accommodation will assume an even greater significance, given that the tenant may not otherwise be in a position to secure residential accommodation through the private rental market. For that reason, the termination of a public housing tenancy agreement has the potential to result in an acute accommodation crisis for the tenant, and potentially in homelessness.
The balance between the position of owners and tenants has been struck by limiting the ability of the owner and tenant to terminate a residential tenancy agreement, save in the circumstances set out in s 60 of the RT Act, as elaborated on in the balance of pt V. In circumstances where an owner wishes to terminate a tenancy agreement, the balance struck by the RT Act pertains to the grounds on which the termination will be permitted, and the time within which the tenant is required to deliver up vacant possession. Where it is alleged that a tenant is in breach of the agreement, the owner is entitled to give the shortest period of notice (not less than seven days).[70] If the owner sells the land in question, and the premises are not the subject of a current fixed term lease, the period of notice must be not less than 30 days.[71] And at the other end of the spectrum, where maximum freedom is afforded to the owner to determine the use of the land, and so to bring to an end a periodic lease without identifying any ground for doing so, the balance is struck by giving the tenant the benefit of the maximum period of notice (of not less than 60 days).[72]
[70] Residential Tenancies Act 1987 (WA) s 62(2).
[71] Residential Tenancies Act 1987 (WA) s 63(2).
[72] Residential Tenancies Act 1987 (WA) s 64(2).
This legislative purpose informs the question whether procedural fairness is excluded in relation to the exercise of power under s 64 of the RT Act. A requirement to afford procedural fairness by advising the tenant of any reasons for the proposed termination of an agreement would be inconsistent with the underlying purpose of s 64, which recognises the greatest freedom for an owner to determine the use of the land.
The second aspect of the legislative purpose which is presently relevant is the fact that the RT Act applies both to private owners, and to agencies of the State which own land. The Act permits the application of the Act to be modified in relation to a prescribed person or agency acting on behalf of the Crown.[73] The RT Act also permits certain persons or agencies to be prescribed in regulations, and if so, residential tenancy agreements entered into by that person or agency, as an owner, will not be subject to the RT Act.[74] More recently (but of no relevance to the present case) the RT Act has been amended to include provisions which deal with social housing.[75] Other than by these means, the clear intention of the RT Act is that its provisions will apply in the same fashion irrespective of whether an owner is a private individual or corporation, or a person or agency acting on behalf of the State.
[73] Residential Tenancies Act 1987 (WA) s 6.
[74] Residential Tenancies Act 1987 (WA) s 5(2)(f). The Authority has not been so prescribed.
[75] See Residential Tenancies Act 1987 (WA) pt V, div 3.
On Ms Blanket's case, that aspect of the legislative purpose cannot be accommodated. On Ms Blanket's case, if the Authority wished to rely on s 64 of the RT Act to terminate a residential tenancy agreement, the Authority would be required to identify for the tenant the reason for the proposed termination, and the reason why the Authority intended to act under s 64 rather than under another ground (assuming one were open), and seek the tenant's views on those matters. In addition, the Court (under s 71(2)(a) of the RT Act) would need to be satisfied that procedural fairness had been afforded, before it could be satisfied that the notice of termination had been given in compliance with the RT Act. In contrast, when the same legislative provisions are applied in the case of a private owner, the owner is under no obligation to seek the tenant's input prior to giving the notice of termination. It would be inconsistent with the legislative purpose underlying pt V to construe s 64 and s 71 as having two different meanings, depending on whether or not the owner is an agency of the State.
The parties very helpfully provided the court with a comprehensive set of extrinsic materials dealing with the legislative history of the RT Act from its enactment to the present day.[76] Given that the provisions of the RT Act of present relevance were enacted in 1987, the parties acknowledged that the extrinsic materials dealing with more recent amendments to the RT Act were of no, or limited, assistance.
[76] See Interpretation Act 1984 (WA) s 19(2).
To the extent that they were relevant, however, those extrinsic materials confirmed the legislative purposes which I have discerned from the terms of the RT Act itself.[77]
[77] See Interpretation Act 1984 (WA) s 19(2).
The extrinsic materials which pertained to the Residential Tenancies Bill 1987 (WA) confirmed the legislative purpose which I have discerned from the terms of the RT Act itself. In introducing that Bill, the Minister for Local Government, Mr Carr MLA, indicated that the Bill was based on the recommendations of a working party on residential tenancy law reform (the WA Working Party), which recommended in a report that the legislation be based on the South Australian Residential Tenancies Act 1978 (the SA Act).[78]The Minister noted that the SA Act had its genesis in a report of A J Bradbrook entitled Poverty and the Residential Landlord‑Tenant Relationship prepared in 1973.
[78] Western Australia, Parliamentary Debates, Legislative Assembly, 29 October 1987, 5390.
In the latter report, Mr Bradbrook expressed the view that a tenant needed legislative protection in a number of areas, including when threatened by the landlord with eviction, and that a landlord also had a number of interests worthy of legislative protection, including that the landlord be able to secure possession with a minimum of expense and delay.[79] In relation to the termination of a tenancy agreement by a landlord, Mr Bradbrook advocated reform in two areas:[80]
We can preserve the right of the landlord to give the tenant a notice to quit without specifying a reason, but permit the tenant to challenge the validity of the notice if he believes that it was given in retaliation for a complaint made by the tenant to a governmental agency or an exercise by the tenant of a remedy provided by statute. (This can be referred to as the problem of 'retaliatory eviction'.) Secondly, we can insist that the landlord specify a reason, and enact legislation specifying a complete list of acceptable reasons. (This can be referred to as the problem of 'discretionary termination'.)
[79] Bradbrook A J, Poverty and the Residential Landlord-Tenant Relationship, Australian Government Commission of Inquiry Into Poverty (1973) 1.
[80] Bradbrook A J, Poverty and the Residential Landlord-Tenant Relationship, Australian Government Commission of Inquiry Into Poverty (1973) 55.
In relation to discretionary terminations, Mr Bradbrook noted that 'the necessity for legislative intervention in this area is not as fundamental as in the case of retaliatory eviction',[81] and 'while the right of the landlord to regain vacant possession of his property must not be unduly circumscribed'[82] it was nevertheless desirable to introduce a list of acceptable reasons for a notice to quit.[83] However, he immediately acknowledged that the main problem was to determine the reasons which would be acceptable for a notice to quit.[84] In addition, he suggested that if the recommendation to prohibit discretionary terminations was not accepted, consideration should be given to legislative provisions which required a landlord to terminate a tenancy without cause to assume the responsibility of finding alternative housing for a dispossessed tenant.[85] When the SA Act was enacted, discretionary terminations by a landlord were not prohibited but a lengthy period of notice (of 120 days) was required to be given, no doubt in recognition of the need to protect the position of the tenant who would need to find alternative residential accommodation.[86]
[81] Bradbrook A J, Poverty and the Residential Landlord-Tenant Relationship, Australian Government Commission of Inquiry Into Poverty (1973) 57.
[82] Bradbrook A J, Poverty and the Residential Landlord-Tenant Relationship, Australian Government Commission of Inquiry Into Poverty (1973) 57.
[83] Bradbrook A J, Poverty and the Residential Landlord-Tenant Relationship, Australian Government Commission of Inquiry Into Poverty (1973) 57.
[84] Bradbrook A J, Poverty and the Residential Landlord-Tenant Relationship, Australian Government Commission of Inquiry Into Poverty (1973) 57.
[85] Bradbrook A J, Poverty and the Residential Landlord-Tenant Relationship, Australian Government Commission of Inquiry Into Poverty (1973) 58.
[86] Residential Tenancies Act 1978 (SA) s 65.

In its report, the WA Working Party noted that the rationale behind this section was 'to prevent discriminatory eviction without reasonable notice'.[87] However, the WA Working Party concluded that a shortened period of 90 days' notice would achieve the same end.[88] Ultimately, s 64 of the RT Act required that notice of not less than 60 days be given.
[87] Report of the Working Party on Residential Tenancy Law Reform (WA) (1984) 29.
[88] Report of the Working Party on Residential Tenancy Law Reform (WA) (1984) 29.
These extrinsic materials confirm that the intention of the Parliament in enacting s 64 of the RT Act was to ensure that owners retained the ability to bring about the termination of a tenancy agreement without needing to specify a particular reason for doing so, but to protect the position of the tenant in that case by requiring a reasonable period of notice to enable the tenant to find alternative accommodation.
For these reasons, the conclusion that the Parliament intended to exclude the requirement to afford procedural fairness in relation to a decision made under s 64 of the RT Act is more consistent with the legislative purpose underlying pt V of the RT Act, and should be preferred.[89]
[89] Interpretation Act 1984 (WA) s 18.
Finally, I should make clear that the matters outlined above also support the conclusion that there is no requirement to afford procedural fairness to a tenant in relation to an owner's proposed decision to proceed under s 64 of the RT Act, rather than any other section in pt V of the RT Act. If the reason why the owner seeks to terminate a tenancy agreement is irrelevant under s 64, I can see no basis for concluding that a tenant should be given an opportunity to be heard in relation to an owner's reason for relying on s 64, rather than on any other section in pt V of the RT Act (if any other section is applicable).

Other bases advanced in support of the conclusion that procedural fairness must be afforded in relation to decisions under s 64 of the RT Act

Counsel for Ms Blanket submitted that Nicholson v New South Wales Land and Housing Corporation[90] (to which I referred at [74] above) lent some support to his contention that the requirement to afford procedural fairness pertains to s 64 of the RT Act. Badgery‑Parker J held that a requirement to afford procedural fairness arose because the tenant had a legitimate expectation of security of tenure except in the event of a breach by him of the terms of the tenancy agreement. That basis for the requirement for procedural fairness was not advanced in this case. Nicholson does not constitute an authority which is binding on me in relation to the question of procedural fairness in this case.
[90] Nicholson v New South Wales Land and Housing Corporation (Unreported, NSWSC, Library No 9102676, 24 December 1991).
Finally, counsel for Ms Blanket submitted that if procedural fairness were excluded in relation to the exercise of power under s 64, the tenant would be denied the opportunity to respond to any evidence upon which the order made by the Magistrates Court would be based, and this would undermine the position of the Magistrates Court as a court exercising judicial power under Chapter III of the Constitution.[91] I am unable to accept this submission. As I explained above at [97] ‑ [98], in considering an application under s 71 of the RT Act in a case where the owner has given notice of termination under s 64, the court is only required to consider whether the notice of termination complied, and was given in accordance, with the RT Act. The court is not required to consider any ground the owner may have had for seeking to terminate, or whether that ground was made out. No question arises of the tenant being denied the opportunity to respond to any evidence upon which the court is asked to make an order.
[91] Counsel relied on Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638, 687 ‑ 688 [181] ‑ [188] (Gageler J) as authority for this proposition.
Accordingly, in my view, the Authority was not required to afford Ms Blanket the opportunity to be heard in relation to the reason (or reasons) why it intended to seek the termination of the Lease, or why it intended to proceed under s 64 of the RT Act, rather than s 62 of the RT Act.
However, in case I am wrong in this conclusion, it is appropriate to deal with the final aspect of the procedural fairness ground, namely whether procedural fairness was, in fact, afforded to Ms Blanket.

(c) Whether procedural fairness was, in fact, afforded to Ms Blanket

Counsel for Ms Blanket submitted that if the Authority was required to afford procedural fairness to Ms Blanket, that requirement had not been met in this case. He submitted that Ms Blanket was not afforded the opportunity to ascertain the reasons for the Authority's intended notice of termination under s 64, and was not given the opportunity to be heard in relation to those issues. He submitted that what had to be put to Ms Blanket were the substantive matters that had prompted the Authority to issue a notice of termination under s 64, including the rationale for its decision to abandon reliance on s 62 of the RT Act and instead to proceed under s 64 of the RT Act.[92]
[92] ts 34, 40 (27 November 2013).
I am unable to accept these submissions. In so far as the Decision concerned the Authority's conclusion that it should seek the termination of the Lease, the factual history set out at [34] to [38] above indicates that the Authority's reasons for seeking the termination of the Lease were made known to Ms Blanket, that she was given the opportunity to be heard in relation to those matters, and that her views were clearly taken into account by the Department and the Authority, in the course of considering whether to proceed to seek the termination of the Lease.
In so far as the second component of the Decision is concerned ‑ namely the Authority's decision to proceed under s 64, rather than s 62, of the RT Act ‑ the Authority's reasons for that course of action were not made known to Ms Blanket prior to the issue of the second Termination Notice. However, the focus of the law in any enquiry about procedural fairness is not on fairness in an abstract sense, but rather on practical injustice.[93] In the present case, I am not persuaded that any practical injustice has been demonstrated by the Authority's failure to advise Ms Blanket of the reasons why it intended to abandon its reliance on s 62 of the RT Act and instead to proceed under s 64. The Authority was obviously well aware that by proceeding under s 64, the court would not be required to examine whether Ms Blanket had failed to remedy a breach of the terms of the Lease. And there was no suggestion that there was any material that Ms Blanket could have put before the Authority which it did not already have, or which might have been able to influence its decision whether to proceed under s 64.
[93] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [37] ‑ [38] (Gleeson CJ), 34 [105] ‑ [106] (McHugh & Gummow JJ), 38 ‑ 39 [122] (Hayne J), 48 [149] (Callinan J).
Even if procedural fairness were required to be observed prior to the Decision, it cannot be said that there was any denial of procedural fairness in this case, or that any practical injustice arose.

(d) Whether the Decision was so manifestly unreasonable as to indicate jurisdictional error

It is well established that a decision maker will exceed his or her jurisdiction if the decision maker makes a decision which is manifestly unreasonable: in other words, a decision which is outside the parameters for reasonable decision making contemplated by the statute which confers the decision making power. Having regard to the orthodox position that courts engaging in judicial review do not simply substitute their own view of how the discretion should be exercised for that of the decision maker, various attempts have been made to convey what is meant by jurisdictional error arising from a manifestly unreasonable exercise of discretion. These have included decisions described as 'so unreasonable that no reasonable decision maker could have reached them',[94] or decisions which are irrational. But labels such as these convey the erroneous impression that only a decision which is unreasonable in an extreme sense will manifest a jurisdictional error. The plurality in Minister for Immigration and Citizenship v Li was at pains to point this out when they said that the 'legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision ‑ which is to say one that is so unreasonable that no reasonable person could have arrived at it'.[95]
[94] Cf Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 234 (Lord Greene MR).
[95] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 364 [68] (Hayne, Kiefel & Bell JJ).
The parameters of reasonable decision making contemplated by a statute are discerned by the construction of the statute having regard to its terms, scope and purpose.[96] Because a manifestly unreasonable decision is one which falls outside the parameters of reasonable decision making contemplated by the statute, an error which falls within one of the other well established categories of jurisdictional error (such as where the decision maker misconstrues the statute, takes into account an irrelevant consideration, or fails to take into account a relevant consideration) may also constitute a manifestly unreasonable exercise of the statutory power.[97] Manifest unreasonableness may also be discerned in a decision which is arbitrary, capricious, vague or fanciful,[98] or a decision which, having regard to the scope and purpose of the statute, involved an error in reasoning, or illogical or irrational reasoning, or gave disproportionate weight to some factor.[99]
[96] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 364 [67] (Hayne, Kiefel & Bell JJ).
[97] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 350 [26] ‑ [27] (French CJ), 365 [71] (Hayne, Kiefel & Bell JJ).
[98] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 351 [28] (French CJ), 363 [65] (Hayne, Kiefel and Bell JJ).
[99] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 352 [30] (French CJ), 365 ‑ 366 [72] (Hayne, Kiefel & Bell JJ), 370 ‑ 371 [90] (Gageler J).
Whatever synonyms for manifest unreasonableness might be used, it remains the case that the test for manifest unreasonableness remains a stringent one, and a finding of jurisdictional error on the ground of manifest unreasonableness of the decision will be uncommon.[100] Any other approach would risk a descent into wholesale merits review, where the court engaging in judicial review simply substituted its own view of the proper (or preferable) exercise of the discretion for that reached by the decision maker.
[100] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 377 ‑ 378 [113] (Gageler J).
Counsel for Ms Blanket submitted that the manifest unreasonableness of the Decision arose from the Authority's reliance on s 64 of the RT Act when it initially had grounds for relying on s 62 of the RT Act, where it abandoned reliance on those grounds in circumstances where it anticipated it would have difficulties in establishing those grounds, and where, by relying upon s 64 of the RT Act, the Authority ensured that the Magistrates Court would not have to be satisfied that breaches of the Lease had occurred in order to make an order terminating the Lease. Counsel submitted that by taking this course, the Authority denied Ms Blanket any opportunity to be heard and to influence the decision whether s 64 should be relied upon in those circumstances.[101]
[101] ts 45 ‑ 46, 50, 52 (27 November 2013).
Counsel for Ms Blanket also submitted that manifest unreasonableness lay in the fact that despite the reluctance of some of the witnesses to give evidence, the Authority chose not to subpoena those witnesses, or to determine whether the s 62 proceedings to terminate the tenancy could succeed without their evidence, but instead assumed that the accounts given by those witnesses were accurate, concluded that Ms Blanket had breached the Lease (and thus determined matters which would have been for the Magistrates Court to determine on the s 62 application) and exercised its discretion to terminate under s 64 of the RT Act on substantially the same basis that it would have pursued had the s 62 application remained on foot.[102] He submitted that this approach gave disproportionate weight to considerations of no relevance, or of merely marginal relevance.
[102] Applicant's written submissions, 20 November 2013 [28].
I am unable to agree. The RT Act clearly permits an owner to issue a notice of termination without specifying any reason for doing so, irrespective of whether the owner could have issued the notice on a ground prescribed by the RT Act. However, if the owner chooses to rely upon s 64, the tenant must be given 60 days' notice.
In the present case, it was therefore open to the Authority to have proceeded under s 64 of the RT Act from the outset. Instead, because the Authority considered that it could establish that Ms Blanket had failed to remedy a breach of the Lease, it determined, quite reasonably, that it should give notice of termination under s 62 of the RT Act. Because the Authority could have relied upon s 64 from the outset, it cannot be said that it was manifestly unreasonable for the Authority to do so simply because it initially relied on the power to issue a notice of termination under s 62 of the RT Act.
In any event, having regard to the matters which were taken into account in reaching the Decision, I am not persuaded that the Decision was manifestly unreasonable. The Authority had identified conduct which it considered constituted breaches of the Lease, it had taken steps to ensure Ms Blanket had the opportunity to be heard in relation to whether that conduct should result in the issue of a first, and subsequent, strike, and whether the Lease should be terminated, and taking all of that material into account, it had determined to proceed under s 62 of the RT Act. Nothing in the text, scope or purpose of the RT Act suggests that there was anything unreasonable about the Authority's decision to abandon its reliance on s 62 and instead to give notice of termination under s 64, when information came to its attention to suggest that its witnesses were unwilling to attend the Magistrates Court to give evidence because of allegedly threatening behaviour and concerns about their safety were they to do so.
In my view, the Decision was not manifestly unreasonable.

(e) Whether relief should be refused for any other reason

The relief sought in this case was the grant of a writ of prohibition to prevent the Authority from taking steps to enforce the Termination Orders or of a declaration that the Decision is of no effect. The grant of such relief is discretionary.
Even had I found that the Decision was tainted by jurisdictional error, I would have declined to grant the relief sought, for the following reasons. First, the Magistrates Court made the Termination Orders, and an order requiring Ms Blanket to deliver vacant possession. For the reasons set out below, I am not persuaded that the Termination Orders should be set aside. Secondly, if there was an error in relation to the Decision, it was 'subsumed',[103] or perhaps more accurately overtaken, by the Termination Orders, which remains in force. Thirdly, in these circumstances, the effect of the grant of a writ of prohibition would have left the Authority in an invidious position. A tenant would remain in the Property in circumstances where the Lease had been terminated, despite the fact that the tenant was subject to an order of the Magistrates Court to vacate the Property, but where the Authority was prohibited from taking steps to remedy that situation by enforcing the Termination Orders.
[103] Riley v State Housing Commission, (Unreported, WASC, Library No 950406, 1 August 1995) 8, 10 ‑ 11 (Owen J).
For all of these reasons, the Prerogative Writ Application should be dismissed.

Why the Review Application should be dismissed

Ms Blanket seeks a review, pursuant to s 36(1)(c) and s 36(3) of the MC Act, of the orders made by the learned magistrate on 31 October 2012. Ms Blanket seeks that the s 84 Decision be set aside, and that the Termination Orders 'should not be done or given effect to'. Despite the unusual way in which the latter relief is described, it appears it is tantamount in effect to an order that the Termination Orders be set aside. However, I note that an order under s 36 of the MC Act cannot be made in respect of an order made by the Magistrates Court in proceedings under the RT Act unless the Supreme Court is satisfied that the Magistrates Court had no jurisdiction under the RT Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.[104]
[104] Residential Tenancies Act 1987 (WA) s 26(2).
Section 35 of the MC Act provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of, or directed to, a court officer. Section 36 of the MC Act, however, relevantly provides:
(1)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 ‑
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)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, order or direction should or should not be made or set aside, as the case requires.
…
(3)On any application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may:
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
The power in s 36 of the MC Act is a judicial review power. The purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the court.[105] The intention is to permit judicial review in those situations in which the specific prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies.[106] The power to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.[107]
[105] Rayney v AW [2009] WASCA 203 [27] (McLure JA, Buss JA & Newnes JA agreeing).
[106] Rayney v AW [2009] WASCA 203 [27] (McLure JA, Buss JA & Newnes JA agreeing).
[107] Rayney v AW [2009] WASCA 203 [28], [32], [33] (McLure JA, Buss JA & Newnes JA agreeing).
The grounds for the Review Application are:
1.The learned Magistrate erred in law and committed jurisdictional error in misconstruing s 84 of the [RT] Act, thereby acting in a manner that might have justified an order of certiorari in that she:
(a)Erroneously confined the operation of s 84 of the [RT] Act by reference to ss. 71 and 82 of the [RT] Act;
(b)Misconstrued clause 23.4 of the [Lease] which, relevantly, precluded the Housing Authority from exercising an entitlement to give notice of termination of the [Lease] without specifying any ground for termination, in a capricious or unreasonable manner;
(c)Failed to apply s 84 of the [RT] Act in light of the proper operation of clause 23.4 of the [Lease];
(d)Failed to exercise the jurisdiction of the Magistrates Court to consider whether it was necessary or desirable in the circumstances to grant the [s 84 Application]; and
(e)In turn granted the Housing Authority's application without having properly undertaken the jurisdictional task conferred by s 84 of the [RT] Act that was required of her in determining the [s 84 Application].

No discrete grounds of review were advanced in respect of the learned magistrate's decision to make the Termination Orders. The assumption appears to have been that if the court were to set aside the s 84 Decision, necessarily the Authority would not be able to rely upon the Termination Orders.
In my view, the grant of relief should be refused, irrespective of the merits of the grounds for review, because the s 84 Application was fundamentally misconceived.
The terms of s 84 of the RT Act are discussed above at [15]. The provision is premised on the existence of a residential tenancy agreement, and contemplates that the effect of the s 84 Application will be to modify the way in which a provision of the RT Act will apply to that residential tenancy agreement in the future. There is nothing in s 84 to clearly indicate that it is intended to operate in such a way as to retrospectively affect such rights or liabilities as the parties to that agreement had prior to the making of the order under s 84.[108] Accordingly, even if an order had been made by the learned magistrate in the terms sought by Ms Blanket, that order could not have altered the rights and liabilities of the parties under the RT Act and the Lease as they existed prior to the making of that order.[109]
[108] See Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ); Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194 (Fullagar J).
[109] Cf Director of Housing v Murphy [2002] VSC 33 [33] (Balmford J).
Counsel for Ms Blanket accepted that s 84 of the RT Act does not have a retrospective operation. However, he submitted that the s 84 Application only sought to alter the operation of s 64 of the RT Act to the Lease in the future, and that at the time the s 84 Application was made, s 64 of the RT Act still had work to do in relation to the Authority's application for a Termination Orders under s 71 of the RT Act. He submitted that the prospective effect of an order made under s 84 of the RT Act in this case would mean that the Authority would be unable to continue to rely upon s 64 of the RT Act as the basis for its application for a Termination Orders.[110] I am unable to agree. Section 64 of the RT Act permitted the Authority to give the second Termination Notice. The Authority exercised that power and gave notice of termination to Ms Blanket. After that point, s 64 had no more work to do. In contrast, s 71 of the RT Act is dependent upon the existence of two factual preconditions: it must be the case that the owner gave notice of termination under the RT Act and that the tenant failed to deliver up possession on the day specified in the notice. Those two factual preconditions were satisfied at the time that the Authority's application was made to the Magistrates Court on 12 March 2012. The making of an order under s 84 of the RT Act was not capable of altering that situation.
[110] ts 4 (20 March 2014).
Accordingly, the Review Application should be dismissed.

Conclusion and orders

The Prerogative Writ Application and the Review Application should be dismissed. I will hear the parties as to the orders which should be made.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BLANKET -v- THE HOUSING AUTHORITY [2014] WASC 409 (S)

CORAM: PRITCHARD J

HEARD: ON THE PAPERS

DELIVERED : 27 MARCH 2015

FILE NO/S: CIV 1230 of 2013
CIV 1232 of 2013

BETWEEN: KAREN MARIE BLANKET
Applicant
AND
THE HOUSING AUTHORITY
Respondent

Catchwords:

Costs - Whether special costs order should be made - Whether circumstances justify departure from the usual order as to costs - Public interest litigation - Test case - Access to justice - Turns on own facts

Legislation:

Nil

Result:

Costs order made in favour of the respondent

Category: B

Representation:

Counsel:

Applicant: No appearance
Respondent: No appearance

Solicitors:

Applicant: Fremantle Community Legal Centre
Respondent: State Solicitor for Western Australia

Cases referred to in judgment:

Blanket v The Housing Authority [2014] WASC 409
Collard v The State of Western Australia [No 4] [2013] WASC 455 (S)
Kidd v The State of Western Australia [2014] WASC 99 (S)
Nettheim v Minister for Planning and Local Government (No 2) (Unreported, NSWLEC, 28 September 1988)
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Roe v The Director General, Department of Environment and Conservation (WA) [2011] WASCA 57 (S)
Ruddock v Vadarlis (No. 2) [2001] FCA 1865; (2001) 115 FCR 229
Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; (2007) 98 ALD 651

PRITCHARD J: In these Applications, Ms Blanket's application for judicial review of a decision of the Housing Authority (the Authority), and for a review of the decision of a Magistrate pursuant to s 36 of the Magistrates Court Act 2004 (WA), were dismissed. Following the delivery of my reasons for decision,[111] I made orders by consent for the determination of the question of costs on the papers. These are my reasons in respect of the parties' applications for costs.
[111] Blanket v The Housing Authority [2014] WASC 409. These reasons should be read in conjunction with those earlier reasons for decision. The same abbreviations have been used.
The Authority seeks an order that Ms Blanket pay the Authority's costs of each of the Applications, including reserved costs, to be taxed if not agreed, on the basis that it successfully defended each Application.[112]
[112] Respondent's Outline of Submissions [2].
Ms Blanket seeks an order in each Application that there be no order as to costs on the basis that special circumstances exist to justify departing from the usual order as to costs.[113] Those special circumstances are said to be that each Application should be characterised as a 'test case', or as constituting 'public interest litigation', and that to make the usual order as to costs in cases such as this would constitute 'a significant barrier to accessing justice'.[114]
[113] Applicant's Outline of Submissions [26].
[114] Applicant's Outline of Submissions [31].
For the reasons set out below, in my view the costs order which should be made in each Application is that Ms Blanket pay the Authority's costs, including reserved costs, to be taxed if not agreed.

Principles in relation to the award of costs

The court has a broad discretion to make orders in relation to the costs of, and incidental to, a proceeding.[115] That discretion must be exercised judicially in accordance with established principles and factors directly connected with the litigation.[116]
[115] Supreme Court Act 1935 (WA) s 37; Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
[116] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [65] (McHugh J, Brennan CJ agreeing), [22] (Gaudron & Gummow JJ).
The most important factor which guides the exercise of the costs discretion is the result of the litigation.[117] Generally speaking, the court will make an order that the successful party to an action recover his costs from the unsuccessful party, and this is known as the usual order as to costs. A court will depart from the usual order as to costs only if special circumstances are shown to exist.[118]
[117] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [66] (McHugh J, Brennan CJ agreeing).
[118] Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S) [12] (Martin CJ & Murphy JA); Ruddock v Vadarlis (No. 2) [2001] FCA 1865; (2001) 115 FCR 229; Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1863; (2007) 98 ALD 651 [29] (Marshall J).
I discussed some of those special circumstances in my decision in Collard v The State of Western Australia [No 4].[119]More recently, the principles were discussed by Beech J in Kidd v The State of Western Australia.[120]It is unnecessary to repeat those principles here. It suffices to say that there have been some instances in which the fact that a case can properly be described as a test case, or involves a matter of public interest, has been relied upon (together with all of the other circumstances of the case) as giving rise to special circumstances warranting a departure from the usual order as to costs. There are, however, no fixed exceptions to the usual order as to costs in this context, and in each case the court's discretion must be exercised having regard to all of the facts and circumstances of the case.
[119] Collard v The State of Western Australia [No 4] [2013] WASC 455 (S) [12] - [20].
[120] Kidd v The State of Western Australia [2014] WASC 99 (S) [7] - [13] (Beech J).

The parties' submissions

The Authority's position on costs was that as it was wholly successful in defending the Applications, the starting point for considering the proper exercise of the Court's discretion with respect to costs is that the Authority should be able to recover its costs from Ms Blanket. The Authority submitted that the circumstances of this case did not involve special circumstances which justified departure from that general rule.[121]
[121] Respondent's Outline of Submissions [11].
Ms Blanket pointed to the following factors as warranting a departure from the usual order as to costs in this case. First, it was submitted that the Applications involved the public interest because:
•The Applications raised for consideration the meaning and operation of s 64 of the Residential Tenancy Act 1987 (WA) (the RT Act) and clarification of the meaning of that section 'was essential to future practice and utilisation of the section';[122]
[122] Applicant's Outline of Submissions [19].
•The subject matter of the Applications involved a matter in the public interest and the Applications were brought to advance that public interest[123] in that the Application 'was arguable and sought to resolve a significant issue for the administration … of a statutory provision';[124] and
[123] Applicant's Outline of Submissions [22].
[124] Applicant's Outline of Submissions [21].
•Ms Blanket 'sought clarification on behalf of a large group of individuals'.[125]
[125] Applicant's Outline of Submissions [24].
Secondly, it was Ms Blanket's case that the Applications were test cases and that the construction of the statutory provisions in these Applications 'have a wide significance' in that 'the decision made affects all those who are tenants in public housing'.[126]
[126] Applicant's Outline of Submissions [28].
Thirdly, Ms Blanket submitted that 'from the perspective of a marginalised or disadvantaged litigant, the exposure to adverse costs orders and the uncertainty of this risk in test cases is a significant barrier to accessing justice'.[127]
[127] Applicant's Outline of Submissions [31].

The circumstances of this case do not warrant a departure from the usual order as to costs

The submissions advanced by Ms Blanket have not persuaded me that special circumstances exist in this case to warrant a departure from the usual order as to costs.
Although it is true that these Applications clarified the meaning and operation of s 64 of the RT Act and that the construction of that section may be of relevance in other cases, that factor alone is not sufficient to warrant a departure from the usual order as to costs. Public law cases commonly involve the construction of statutory provisions which have a wide application, yet no special rule in relation to costs has developed in that context. The same point can be made in relation to the submissions that this case was a test case, and had a wide significance because it resolved a question about the administration of the RT Act and clarified the circumstances in which s 64 of the RT Act may be used.
In so far as it was submitted that the arguments advanced by Ms Blanket were arguable, I am unable to accept that submission in respect of the Review Application. That Application was fundamentally misconceived.[128] Quite apart from all of the other circumstances of the case, that fact alone militates strongly against any departure from the usual order as to costs in relation to the Review Application. And while I accept that Ms Blanket advanced an arguable case in the Prerogative Writ Application, that factor of itself does not warrant a departure from the usual order as to costs.
[128] Blanket v The HousingAuthority [2014] WASC 409 [140].
As for the submission that Ms Blanket sought clarification in relation to the meaning and operation of s 64 of the RT Act on behalf of a large number of individuals, that submission fails, first, on factual grounds. There was nothing in the materials before the Court, or in the conduct of the case on behalf of Ms Blanket, to suggest that the Applications were brought on behalf of a large group of individuals. Furthermore, it was apparent that Ms Blanket was pursuing a private interest: the factual context for the Applications was confined to Ms Blanket's attempt to prevent the Authority from terminating her tenancy.
The fact that litigation may advance private interests is not necessarily fatal to its being characterised as being in the public interest,[129] because the question is not what was the plaintiff's subjective motivation in bringing the litigation,[130] but rather, whether the litigation was of a 'public or private character'.[131] However, in my view, the case as a whole did not have a public character. In addition to the factual context, the submissions and the relief sought focused on the individual circumstances of this case, and did not seek to encompass the application of s 64 of the RT Act in a broader context. There was, for example, no suggestion that this case was brought to resolve a legal question which had arisen in a number of cases in relation to the operation of the RT Act or in respect of which there was divergent authority.[132]
[129] Nettheim v Minister for Planning and Local Government (No 2) (Unreported, NSWLEC, 28 September 1988), 3 - 5 (Cripps CJ).
[130] Kidd v The State of Western Australia [2014] WASC 99 (S) [17] (Beech J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [140].
[131] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [140] (Kirby J).
[132] Cf, for example, Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229, 241 [28].
In the end I am left with the conclusion that there was nothing to distinguish this case from the numerous other public law cases where the outcome of the litigation results in clarification of the meaning or operation of a statutory provision,[133] and in that sense may assist future litigants, but where no special costs rule applies.
[133] See Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [75].
Finally, there can be no doubt that the risk of exposure to adverse costs orders may act as a deterrent to litigation. It may also have the effect that the marginalised or disadvantaged litigant (and others besides) may be unable to pursue litigation in the courts. Much has been written about the cost of litigation, and what measures might be taken to increase access to justice, especially for the economically disadvantaged in our society. But for the courts to create exceptions from the usual order as to costs in an attempt to overcome this problem would be to risk replacing one problem, or perceived injustice, with others. By way of example, the usual rule as to costs is predicated on fairness: fairness dictates that the unsuccessful party should ordinarily be liable for the costs of the unsuccessful litigation because if the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did.[134] A general departure from the usual order as to costs would have the unfair consequence (as between the parties to litigation) that the party who successfully defended litigation may have to bear their costs in doing so, notwithstanding that the decision to commence, and pursue, the proceedings was beyond their control. Furthermore, if there were a general departure from the usual order as to costs, so that the parties were free to pursue litigation without any risk of adverse costs orders, that would inevitably lead to an increase in litigation which in turn would add to the 'burden on the scarce resource of the publicly funded justice system'.[135]
[134] Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [68] (McHugh J). The very limited exceptions to that rule which have been developed at common law primarily relate to disentitling conduct by the successful party - see Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [70] (McHugh J).
[135] Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [68] (McHugh J).
There are, of course, other means by which the impact of the usual order as to costs may be ameliorated. It is always open to a successful litigant not to pursue an order for costs, or not to enforce an order for costs made in favour of that party. Alternatively, prior to the commencement of litigation, the parties may be able to reach agreement in relation to the costs of the litigation. In some cases, the Parliament has legislated to adopt different rules in relation to costs orders in litigation[136] or in relation to the payment of costs.[137] In my view, the adoption of different rules of general application in relation to the costs of litigation, which are not premised on the concept of fairness as between the parties to the litigation, raises questions of policy which are properly a matter for the legislature.
[136] See for example, State Administrative Tribunal Act 2004 (WA) s 87(1).
[137] See, for example, Suitors' Fund Act 1964 (WA) s 10 and s 11.

Conclusion

There will be an order in each Application that Ms Blanket pay the Authority's costs, to be taxed if not agreed.