Blowfield v Centacare Evolve Housing Limited
[2024] TASSC 27
•28 May 2024
[2024] TASSC 27
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Blowfield v Centacare Evolve Housing Limited [2024] TASSC 27 |
| PARTIES: | BLOWFIELD, Rebecca |
| v | |
| CENTACARE EVOLVE HOUSING LIMITED | |
| FILE NO: | 1037/2024 |
| DELIVERED ON: | 28 May 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 14 May 2024 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Landlord and Tenant – Residential tenancies legislation – Recovery of possession – Generally – Application for order for vacant possession – Requirement that magistrate be satisfied that reason for serving notice to vacate was genuine or just.
Aust Dig Landlord and Tenant [217]
Procedure – Civil proceedings in State and Territory Courts – Judgments and orders – Amending, varying and setting aside judgments and orders – Ex parte orders and judgments – Particular cases – Magistrate's order for vacant possession of leased residential premises.
Aust Dig Procedure [1399]
Legislation:
Residential Tenancy Act 1997 (Tas), s 45(3)(b)
Magistrates Court (Civil Division) Rules 1998 (Tas), rr 10, 109, 116
Cases cited:
Allesch v Maunz [2000] HCA 40, 203 CLR 172
Director of Housing v Parsons [2019] TASFC 3
Grassby v The Queen (1989) 168 CLR 1
House v The King (1936) 55 CLR 499
Logan v Director of Housing [2004] TASSC 153, 13 Tas R 324
O'Neill v Schlatter [1998] QCA 175
Parsons v Director of Housing [2018] TASSC 62
Taylor v Taylor (1979) 143 CLR 1
Ybanez v Love [2021] QCA 224
REPRESENTATION:
Counsel:
Appellant: S Royston Respondent: B Cassidy
Solicitors:
Appellant: A Bomford Respondent: Page Seager Lawyers
| Judgment Number: | [2024] TASSC 27 |
| Number of paragraphs: | 39 |
Serial No 27/2024 File No 1037/2024
REBECCA BLOWFIELD v CENTACARE EVOLVE HOUSING LIMITED
| REASONS FOR JUDGMENT | BLOW CJ 28 May 2024 |
1 This is an appeal from an order of a magistrate, Mr A McKee, requiring the appellant, Rebecca Blowfield, to deliver vacant possession of the premises where she lives to the owner of the premises or his agent. The premises are owned by the Director of Housing. The respondent to this appeal, Centacare Evolve Housing Limited, is the Director's agent.
2 The appellant's counsel told me that she was a survivor of family violence, a single mother of four, and a disability support pensioner. She was granted a fixed term tenancy of the premises on 23 August 2022. Her tenancy was extended three times – on 2 November 2022, 14 February 2023 and 9 May 2023. After 1 August 2023 she remained the tenant of the premises. By virtue of s 11(2) of the Residential Tenancy Act 1997 there existed a "new residential tenancy agreement for no fixed period".
3 For most of the time that she has occupied the premises the appellant has been behind in her rent. An officer of the respondent company wrote to her about her arrears of rent on 2 May 2023, 13 June 2023, 22 December 2023 and 4 January 2024. On 7 February 2024, when her arrears amounted to $1,355, she was served with a notice to vacate. On 27 February 2024 the respondent filed an application in the Civil Division of the Magistrates Court seeking an order that she deliver up vacant possession of the premises. That application was served on her on 2 March 2024. It was listed for hearing on 18 March 2024 at 9.15am.
4 The appellant did not attend court on that morning. Mr Matthew Graves from the Tenants' Union of Tasmania attended court, expecting to obtain instructions from her and then to represent her. He initially had the matter stood down but, lacking instructions, he ultimately told the learned magistrate that he was unable to appear. The hearing proceeded ex parte. The learned magistrate made an order for delivery of vacant possession of the property. This is an appeal from that order.
5 The appellant has sworn an affidavit as to her reasons for not appearing in court on the morning of the hearing. Her account of events can be summarised as follows. At about 8.45am she was driving along the East Derwent Highway in Lindisfarne intending to go to court. She stopped at some traffic lights. Another vehicle ran into the back of her car, jolting her. She has multiple sclerosis. A friend drove her to see her general practitioner. He told her to wear a neck brace overnight. She had spoken to a lawyer, Lewis Hickman, three days previously and had asked him to appear for her at the hearing. She assumed that he would be there and would obtain an adjournment. She did not think of phoning the court after her accident. She was "a little bit shocked".
6 Mr Hickman has sworn an affidavit in which he said that he did not attend court on the morning of 18 March because Mr Graves had told him that he would represent the appellant provided she turned up and provided instructions.
7 The application for delivery of vacant possession was made pursuant to s 45(1) of the Residential Tenancy Act. For the purposes of the Magistrates Court (Civil Division) Act 1992, such an application constitutes a "minor civil claim": Magistrates Court (Civil Division) (Minor Civil Claims) Regulations 2023, reg 3(2)(b). Many courts have rules that provide for an application for a new trial to be made by a party who does not appear when a judgment or order is made ex parte. Rule 570(2) of the Supreme Court Rules 2000 is an example of such a rule. However there is no equivalent provision in the Magistrates Court (Civil Division) Rules 1998.
8 On 3 April 2024 a solicitor from the Tenants' Union of Tasmania filed an application by the appellant seeking an order pursuant to r 113 of the Magistrates Court (Civil Division) Rules setting aside the order for vacant possession. That application was misconceived. Rule 113 applies only to "any judgment that is not a final judgment". The order for vacant possession was a final judgment,
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not an interlocutory judgment. The learned magistrate dismissed the r 113 application on that basis
on 15 April 2024.9 On 19 April 2024 this appeal was instituted. It was out of time, but an extension of time is not opposed. At the hearing, the appellant relied on two grounds of appeal. They can be summarised as follows:
•
That the learned magistrate erred by ordering vacant possession when he was not properly satisfied that "the reason for serving the notice to vacate was genuine or just" as required by s 45(3)(b) of the Residential Tenancy Act. (Ground 1)
•
That the learned magistrate denied the appellant natural justice by conducting a trial in her absence rather than adjourning the proceedings or entering some sort of interlocutory judgment. (Ground 2)
The "genuine or just" requirement
10 Section 45(3) of the Residential Tenancy Act empowers the Magistrates Court to make an order for vacant possession if satisfied of certain things. By virtue of s 45(3)(b), the magistrate must be satisfied that "the reason for serving the notice to vacate was genuine or just". It appears from the appellant's affidavit that, but for her car accident, she would have instructed Mr Graves that she believed the real reason for the service of the notice to vacate was not that her rent was in arrears, but that she was in temporary accommodation, and had refused an offer from Housing Tasmania of a tenancy in another suburb, where she believed she might not be safe.
11 Although s 45(3)(b) uses the words "genuine or just", it is clear that those words should be interpreted as meaning "genuine and just". In Parsons v Director of Housing [2018] TASSC 62, Geason J considered the meaning of those words at [46]-[55] and concluded that the stated reason for serving the notice to vacate was required to be both genuine and just. That conclusion was not challenged in a subsequent appeal to the Full Court: Director of Housing v Parsons [2019] TASFC 3. In my view the interpretation adopted by Geason J was plainly correct.
12 The learned magistrate delivered brief oral reasons for the order that he made. In those reasons he said that he was satisfied that the reason for serving the notice to vacate was genuine, but did not say why he believed the reason to be genuine.
13 The material before him included details of every rental payment due and every rental payment made since the commencement of the appellant's tenancy in 2022. That evidence clearly established that her rent was in arrears, and that the amount of the arrears had been growing.
14 He also made a finding that the reason for serving the notice was just. According to the transcript he said this:
"As to whether it was just, I'm satisfied it was just to serve the notice to vacate. The tenancy agreement created mutual obligations between the owner and the tenant. The owner agreed to provide exclusive possession of the property in exchange for payment of rental. The tenant has not complied with her obligations under the agreement. The owner should be entitled to regain possession of the property as a result of the tenant not complying with her obligations to pay rent.
I'm aware that this is social housing. I'm acutely aware that there are significant pressures on social housing and significant waiting lists. I'm also of the view it's just [sic] in the circumstances that Ms Blowfield is occupying social housing to the exclusion of others who would qualify for social housing. She's not paying her rent in accordance with the residential tenancy agreement. There are others that would be willing to take up that housing and meet their obligations under a residential tenancy agreement."
15 Section 31AB of the Magistrates Court (Civil Division) Act contains provisions in relation to the procedure for minor civil claims, some of which read as follows:
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"(1) The following provisions apply to a proceeding in respect of a minor civil
claim:
(a) the Court is not bound by the rules of evidence but may inform itself on any matter in any manner that it considers appropriate; (b) the Court may itself elicit by inquiry from the parties and the witnesses and by examination of evidentiary material produced to the Court the issues in dispute and the facts necessary to decide those issues; (c) the proceeding is to take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties; …
(f) the proceeding is to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, the rules of court and a proper consideration of the issues in dispute permit."
16 Counsel for the appellant made a submission to the effect that the learned magistrate erred by failing to enquire at the hearing as to the genuineness or otherwise of the stated reason for issuing a notice to vacate. He relied on material that was before the learned magistrate which showed there had been past occasions when the appellant's tenancy had been extended despite her being in arrears at those times, as well as occasions when letters had been sent to her about her arrears without any notices to vacate having been served.
17 In Logan v Director of Housing [2004] TASSC 153, 13 Tas R 324, I dealt with a case in which a notice to vacate stated that the reason it was given was "Rental Arrears". There was evidence that the rent was in fact in arrears. At [6] I said:
"Because the rent was in arrears, it was open to the learned magistrate to hold that the reason for serving the notice to vacate was 'genuine' and thus that par (b) was satisfied."
18 In Director of Housing v Parsons (above) Estcourt J said, at [35]:
"For present purposes the decision in Logan may be confined to the finding by Blow J that because in that case the rent was in arrears, it was open to the learned magistrate to hold that the reason for serving the notice to vacate was 'genuine', and thus that s 45(3)(b) was satisfied. Genuineness of reason is not as self-evident however, where the stated reason for the notice to vacate is that an historically repeatedly renewed tenancy agreement is coming to an end."
19 Mr Parsons had been a tenant of the Director of Housing for almost 12 years. When the Director's application for possession for the premises came before a magistrate, there was evidence suggesting that the true reason for the application was not the one stated in the notice to vacate. In this case the appellant had occupied the relevant premises for about 19 months. The material provided to the learned magistrate revealed that the premises in question were intended to be transitional accommodation. The notice to vacate specified that the reasons for the notice were that the appellant had failed to comply with lease conditions requiring her to pay the rent in full and to pay the rent in advance, and that as of 7 February 2024 she was $1,355 in arrears. The stated reasons for the issue of the notice were inherently plausible. There was nothing in the material before the learned magistrate to suggest that Centacare had a secret ulterior motive for wanting to evict the appellant. In those circumstances, it was open to the learned magistrate to infer that the stated reasons for the issue of the notice were genuine, and reasonable for him to do so without questioning Centacare's representative as to whether the stated reasons for the issue of the notice were genuine. Ground 1 must therefore fail.
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The ex parte hearing issue
20 Ground 2 reads as follows:
"2
The learned Magistrate denied the Appellant natural justice by conducting a trial and entering a final judgment against the Appellant (1) in the absence of the Appellant when His Honour was aware that the Appellant had been previously represented in like proceedings between the parties and (2) in sole reliance of the materials attached to the application for vacant possession rather than:
(a) Adjourning the application for vacant possession to a trial date pursuant to r 97(1) of the Magistrates Court (Civil Division) Rules 1998 (the Magistrates Rules) for a proper consideration of the issues and to allow counsel to seek instructions; or (b) Making an interlocutory judgment against the Appellant in default of her appearance pursuant to rr 83 or 109 of the Magistrates Rules."
21 The reliance on rr 83 and 109 of the Magistrates Court (Civil Division) Rules is
misconceived.
22 Rule 83 does not empower a magistrate to enter an interlocutory judgment. It empowers a magistrate to enter a final judgment when a party fails to attend a directions hearing. It reads as follows:
"If a party fails to attend within 15 minutes after the time fixed for a directions hearing, conciliation conference or listing conference, the Court conducting the conference or hearing may enter judgment or make an order against, and in the absence of, that party, without hearing any evidence."
23 Similarly, r 109 does not empower a magistrate to enter an interlocutory judgment. It empowers a magistrate to enter a final judgment when a party fails to attend when a matter is listed for trial. It reads as follows:
"If a party fails to attend within 15 minutes after the time fixed for trial, the Court may enter judgment or make an order against, and in the absence of, that party, without hearing any evidence."
24 The submissions of counsel for the appellant in relation to ground 2 were based on a premise that, once the final judgment had been entered against the appellant, the Magistrates Court was unable to set that judgment aside because the Magistrates Court (Civil Division) Rules contained no provision empowering a magistrate to set it aside. But that is not the situation. An application for the setting aside of the judgment was possible. Such an application can still be made. There are two sources of jurisdiction – one based on legislative provisions and one based on the implied jurisdiction of the Magistrates Court.
25 Rule 112(1) of the Magistrates Court (Civil Division) Rules confers a discretionary power to set aside a final judgment in a limited number of situations. It does not apply in the circumstances of this case. It reads as follows:
"(1) The Court, on the application of a party or on its own initiative, may set aside
or vary a final judgment –(a) before it is entered; or (b) after it is entered, if –
(i) the judgment was obtained by fraud; or
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(ii) the judgment does not reflect the intention of the Court; or
(iii) the parties consent."
26 However there is no reason to regard that provision as specifying an exhaustive list of the circumstances in which an application to set aside a final judgment may be made and granted.
27 Rule 10 of those rules provides as follows:
"If the manner or form of commencing a proceeding, taking a step or carrying out a process in a proceeding or doing any other thing is not prescribed by these rules or any Act –
(a) the Court, of its own motion or on the application of a party or a district
registrar, may give directions as to the procedural steps to be taken; or(b) in the absence of any order to the contrary, the Court may adopt, with the necessary modification it thinks fit, the practice and procedure of the Supreme Court."
28 Pursuant to r 10(b), it is open to the Magistrates Court to adopt the practice and procedure of the Supreme Court in relation to the situation where a final judgment is entered against a party who fails to attend a trial.
| 29 | Rule 570 of the Supreme Court Rules, to which I referred earlier, provides as follows: "(1) If, when the trial of a proceeding is called on – |
(a) the plaintiff or applicant appears and a defendant or respondent does not
appear, the plaintiff or applicant –
(i) may prove the claim against that defendant or respondent; and
(ii) is entitled to judgment dismissing any counterclaim or cross-
application brought by that defendant or respondent; or
(b) a plaintiff or applicant does not appear, a defendant or respondent who
does appear –
(i) is entitled to judgment dismissing the proceeding insofar as it is
brought by that plaintiff or applicant; and
(ii) may prove any counterclaim or cross-application brought against
that plaintiff or applicant; or
(c) no party appears, the proceeding may be struck out and wholly
discontinued and no party is entitled to costs.(2) On the application of a party who did not appear at trial made within 14 days after trial, the Court or a judge may set aside or vary any judgment, order or verdict obtained under subrule (1) ".
30 Under r 52(1) of the Supreme Court Rules, the Court or a judge may extend the period of 14 days specified in r 570(2). The application for extension of time may be made after the expiration of the 14 day period: r 52(2).
31 Thus, an application for the setting aside of the order for vacant possession can be made pursuant to those provisions.
32 Inferior courts, including the Magistrates Court of Tasmania, have implied powers that are less extensive than the inherent powers of superior courts such as the Supreme Courts of the
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Australian States. The distinction was explained by Dawson J in Grassby v The Queen (1989) 168
CLR 1 in the leading judgment in that case as follows, at 16-17:"… it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit but it is … fundamental."
33 At 17 his Honour said the following as to when an inferior court will possess an implied
power:
"It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction'".
34 In Taylor v Taylor (1979) 143 CLR 1, the High Court held that the Family Court of Australia, despite being a court of limited statutory jurisdiction, had an inherent power to set aside an order made ex parte.
35 The District Court of Queensland is an inferior court with limited statutory jurisdiction. In O'Neill v Schlatter [1998] QCA 175 the Queensland Court of Appeal held that the District Court had an inherent power to set aside orders made ex parte. That case was cited with approval by Ryan J, with whom McMurdo JA and Bond JA agreed, in Ybanez v Love [2021] QCA 224 at [82].
36 In Allesch v Maunz [2000] HCA 40, 203 CLR 172 at [28], Gaudron, McHugh, Gummow and Hayne JJ explained that a court exercising inherent power "will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a re-hearing or that a re-hearing would work an irremediable injustice to the other side".
37 In the light of these authorities, it is clear that the Magistrates Court of Tasmania has an implied power to set aside the order for vacant possession, and that no time limit applies to an application for such an order. Of course inappropriate or unexplained delay might warrant refusal of an otherwise meritorious application.
38 If there had been no way of seeking to set aside the ex parte order, it would at least have been arguable that the learned magistrate's duty of procedural fairness required him to grant an adjournment in case the appellant had been unable to appear due to circumstances beyond her control, given that the possible consequences would otherwise have been to render a disability support pensioner and her family homeless. It might have been argued that the ex parte judgment was "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505. However that was not the situation. It was therefore not necessary for the learned magistrate to take a course that preserved the appellant's right to challenge the case against her. Ground 2 must therefore fail.
39 For these reasons the appeal is dismissed.
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