Coffs Harbour and District Local Aboriginal Land Council v Lynwood

[2017] NSWCA 317

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317
Hearing dates:	24 November 2017
Date of orders:	24 November 2017
Decision date:	11 December 2017
Before:	Basten JA at [1]; Meagher JA at [27]; Simpson JA at [43]
Decision:	1.   Extend time to file the application for leave to appeal to 13 June 2017. 2.   Grant the applicant leave to appeal. 3.   Allow the appeal and set aside the orders made in the Common Law Division on 19 April 2017. 4.   Direct that the order for possession made by NCAT on 25 November 2016 take effect on 22 December 2017. 5.   Otherwise dismiss the summons for leave to appeal to the Supreme Court. 6.   Order that the plaintiffs pay the costs of the proceedings in the Common Law Division. 7.   Order that the respondents pay the appellant’s costs in this Court. 8.   Grant the respondents in this Court a certificate under the Suitors Fund Act 1951 in relation to the appeal in this Court and, if available, in relation to the appeal in the Common Law Division.
Catchwords:	TENANCIES – Residential Tenancies Act 2010 (NSW) – termination of residential tenancy agreements by order of NSW Civil and Administrative Tribunal – whether Tribunal required to consider matters in Residential Tenancies Act 2010 (NSW), s 154E(1) in exercising power under s 85(3) in relation to social housing tenancy agreements   STATUTORY INTERPRETATION – provision mandating regard to matters in considering whether to exercise a power – ordinary meaning of “whether” – resolution of apparent conflict between provisions in single statute – construing “must” as “may”
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 83 Constitution, s 109 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 45, 48, 50 Interpretation Act 1987 (NSW), ss 9, 34, 35, 35 Legal Practitioners Act 1898 (NSW), ss 9, 10, 11, 12 Magistrates’ Court Act 1989 (Vic), s 56 Residential Tenancies Act 2010 (NSW), ss 83, 85, 87, 88, 89, 90, 91, 136, 137, 143, 147, 151, 152, 154A, 154B, 154D, 154E, 154G, 155; Pt 5; Pt 7, Div 5 Residential Tenancies and Housing Legislation Amendment (Public Housing–Antisocial Behaviour) Act 2015 (NSW) Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.10
Cases Cited:	Brygel v Stewart-Thornton [1992] 2 VR 387 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 128; [1971] HCA 12 Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 In Re Davis (1947) 75 CLR 409; [1947] HCA 53 Julius v Bishop of Oxford (1880) 5 App Cas 214 Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWCATAP 62 Odzic v Commonwealth of Australia [2017] FCAFC 28 Posner v Collector for Inter-state Destitute Persons (Vic) (1947) 74 CLR 461 at 490; [1946] HCA 50 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Victoria v The Commonwealth (1937) 58 CLR 618 Ward v Williams (1955) 92 CLR 496; [1955] HCA 4
Texts Cited:	Mark Leeming, Resolving Conflicts of Laws, (2011, Federation Press)
Category:	Principal judgment
Parties:	Coffs Harbour and District Local Aboriginal Land Council (Applicant) Candy Lynwood (First Respondent) Mary Flanders (Second Respondent) Stella Roberts (Third Respondent)
Representation:	Counsel: D Price with M Wells (Applicant) B Walker SC with P Batley (Respondents)   Solicitors: Turks Legal (Applicant) Tenants’ Union of New South Wales (Respondents)
File Number(s):	2017/143239; 2017/176542
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2017] NSWSC 424 Date of Decision: 19 April 2017 Before: Adamson J File Number(s): 2017/100814

Judgment

1. BASTEN JA: This case turns on the question whether “must” means “may”. The statutory context is the power of the Civil and Administrative Tribunal to make a termination order under the Residential Tenancies Act 2010 (NSW), s 85(3).

2. The circumstances giving rise to this question are quite straightforward. As at 23 May 2016 each of the respondents was a tenant occupying residential premises under a residential tenancy agreement with the appellant Land Council. The agreements had commenced as fixed term agreements, but the term having expired, each was a “periodic agreement” for the purposes of the Residential Tenancies Act. Pursuant to s 85 of the Act, the landlord was entitled to obtain a termination order from the Civil and Administrative Tribunal if a termination notice, specifying a termination date not less than 90 days in the future, had been served and the tenant had not vacated the premises. It was common ground that an appropriate notice had been given requiring vacation of the premises on 26 August 2016, with which the respondents had not complied. On 1 September 2016 the appellant applied to the Tribunal for a termination order pursuant to s 85(3) of the Act which states:

85   Termination of periodic agreement

…

(3)   The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

3. At the first hearing the Tribunal member was satisfied that the elements of s 85(3) had been met and, in compliance with its terms, he was required to make the termination order. Make the order he did, on 25 November 2016. The respondents were required to vacate the premises by 14 January 2017.

4. An appeal was lodged with the Appeal Panel of the Tribunal, and heard by a Panel constituted by Deputy President Hennessy LCM and Principal Member K Rosser. On 24 March 2017 the Panel delivered its decision, dismissing the appeal but suspending the order for possession for a period of 14 days from that date. [1]

   1. Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWCATAP 62.

5. The respondents resisted a termination order on the basis (undisputed) that their agreements were “social housing tenancy agreements” within the meaning of that term as defined in s 136 of the Act, because the landlord (the appellant) was a “social housing provider.” Accordingly the provisions of Pt 7 of the Act applied. Those provisions included s 154E, which reads as follows:

154E   Exercise of discretion to make termination order

(1)   In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following:

(a)   the effect the tenancy has had on neighbouring residents or other persons,

(b)   the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,

(c)   the landlord’s responsibility to its other tenants,

(d)   the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,

(e)   whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal.

(2)   This section does not limit any other matter that may be considered by the Tribunal under this Act.

6. Section 85 is to be found in Pt 5 of the Act. To the extent that there was inconsistency between s 85 and s 154E, the respondents relied upon s 137, which provides that “[i]n the event of any inconsistency between a provision of this Part [Part 7] and any other provision of this Act …, this Part prevails to the extent of the inconsistency.” Both the Tribunal member and the Appeal Panel rejected the respondents’ submissions, concluding that s 154E only applied in circumstances where the Tribunal was exercising a discretionary power; they held that s 154E had no operation once conditions had been satisfied which obliged the Tribunal to make the order sought. Section 85(3) was such a section. Accordingly, there was no inconsistency.

7. Undeterred, the respondents sought leave to appeal to the Supreme Court on a question of law, pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). Adamson J accepted their submissions, set aside the decisions of the Tribunal and remitted the matter to be heard and determined according to law. [2] From that judgment the Land Council sought leave to appeal to this Court. Immediately following the hearing orders were made granting leave, allowing the appeal and setting aside the orders made in the Common Law Division.

   2. Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424 (“Lynwood”).

Reasons for orders

8. The general proposition that the word “must” imports an obligation and does not merely confer a discretionary power is beyond question. Although by reference to “shall”, rather than “must”, that principle is somewhat awkwardly expressed in s 9(2) of the Interpretation Act 1987 (NSW), which states that “the word ‘shall’, if used to impose a duty, indicates that the duty must be performed.” At least in Victoria, “must” is preferred to “shall” in some recent legislation as a form of “plain English” drafting. [3] The use of “must” to express an obligation is also commonplace in New South Wales legislation, although the Interpretation Act has not caught up with that practice. (Indeed, as s 9(2) recognises, “shall” does not necessarily impose an obligation at all – as in “it shall be lawful to…”, so that s 9(2) is circular.)

   3. See Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 at 445-446 (Tadgell JA).

9. That the word “must” in s 85(3) imposes an obligation on the Tribunal and involves no exercise of discretion was accepted by the Full Court of the Federal Court in Odzic v Commonwealth of Australia. [4] So much was accepted by the primary judge as an “uncontroversial proposition”. [5]

   4. [2017] FCAFC 28 at [97] (Kenny, Robertson and Griffiths JJ).

   5. Lynwood at [32].

10. The words “must” and “may” are often paired and given discrete meanings. However, it is often the case that a strict dichotomy is not achieved. Thus, it is well understood that the term “may” can, in appropriate circumstances, confer a power coupled with a duty to exercise the power. [6] It is also true that “must”, though more rarely, has been held not to impose an unqualified obligation. In some circumstances the question will be not whether “must” imposes an obligation, but the consequences of failure to comply with the obligation. For example, in Brygel v Stewart-Thornton [7] J D Phillips J, considering the effect of s 56(2) of the Magistrates’ Court Act 1989 (Vic), stated:

“It will be recalled that under s 56(2) ‘a committal proceeding must be conducted in accordance with Schedule 5’. The word ‘must’ is an imperative word and on the face of it therefore the sub-section is mandatory. …

In a passage from Clayton v Heffron [8] … Dixon CJ, McTiernan, Taylor and Windeyer JJ, said this about describing a statutory provision as imperative …: ‘Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. ….’ Thus if, by use of the word ‘must’, s 56(2) were properly regarded as wholly mandatory, non-compliance with any of the requirements of Sch 5 affecting conduct of the committal would render an order made at the conclusion of the committal proceeding altogether null and void. Yet I cannot think that that was what Parliament intended by s 56(2).”

6. Julius v Bishop of Oxford (1880) 5 App Cas 214 and its progeny, including Ward v Williams (1955) 92 CLR 496; [1955] HCA 4; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 128; [1971] HCA 12.

7. [1992] 2 VR 387 at 397.

8. (1960) 105 CLR 214 at 247; [1960] HCA 92.

11. Since Project Blue Sky Inc v Australian Broadcasting Authority,[9] the language of “mandatory” and “directory” to describe statutory provisions is disfavoured. Nevertheless, language of imperative obligation continues to be used and problems may arise in determining the effects of non-compliance. Sometimes the legislature specifies the consequence of non-compliance. Thus, for example, the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) identifies various steps which a sentencing court “must” take in imposing a sentence but expressly provides that a failure to comply “does not invalidate the sentence.”[10]

    9. (1998) 194 CLR 355; [1998] HCA 28 at [93] (McHugh, Gummow, Kirby and Hayne JJ).

    10. Sentencing Procedure Act, s 45(2) and (4); s 48(1) and (3); s 50(1) and (3).

12. On some occasions the context and purpose of the provision demonstrates that a mandatory obligation is imposed, as appears from the judgment of Williams J in Posner v Collector for Interstate Destitute Persons (Vic), albeit in a dissenting judgment:[11]

“Section 56 of the Justices Act (WA) requires, with certain immaterial exceptions, that the summons must be served on the defendant personally. ‘Must’ is a word of absolute obligation and occurs in a section which is concerned with a fundamental principle of justice. It is not merely directory. Compliance is essential to an effective hearing of the summons. … I adhere to what I said in Cameron v Cole [12] that ‘where (as in the present case) service of a particular nature is required to give an inferior court jurisdiction, failure to effect such service will make all the subsequent proceedings null and void.’”

11. (1946) 74 CLR 461 at 490; [1946] HCA 50.

12. (1944) 68 CLR 571 at 604; [1944] HCA 5.

13. In other circumstances, the context may lead to a different conclusion. In the case of In Re Davis [13] a question arose as to the power of the Supreme Court to remove the name of a barrister from the roll in circumstances where the Barristers Admission Board had approved him as a fit and proper person to be made a barrister. Section 9 of the Legal Practitioners Act 1898 (NSW) stated that no candidate “shall be admitted as a barrister unless the Board is satisfied that he is a person of good fame and character”. Section 10 provided that “[e]very candidate whom the Board shall approve as a fit and proper person to be made a barrister shall be admitted as a barrister by the Court on any day appointed for that purpose.” Davis argued that there would have been no power in the court to refuse to admit him, and he should not be disbarred because of circumstances which had occurred before the Board gave its approval for the purposes of s 10. (Davis had, many years earlier, been convicted of breaking and entering a dwelling and had not disclosed his conviction to the Board.) Starke J noted that the word “shall” did not “always impose an absolute and imperative duty to do or omit the act prescribed”, referring to the phrase “it shall be lawful” which may be understood as conferring a power. [14] Starke J also stated that “[t]he word ‘shall’ cannot be construed without reference to its context.” [15] Dixon J dealt with the same provision in the following terms: [16]

“But I am clearly of opinion that to treat s 10 as it now stands as imposing an imperative duty upon the Court without regard to any other condition to admit a candidate to the Bar once he shows the Board’s approval, produces such absurd and inconvenient consequences and is so improbable an intention that some other construction should be adopted, if one is possible. I think that another meaning is open and that the real effect of the section is to provide no more than that, if the candidate has obtained approval of the Board, then his admission shall be in open Court and upon some day appointed for the purpose. Its purpose is not to entitle him to admission independently of every other consideration. When the legislation wishes to give a right to admission it uses the word ‘entitles,’ as for example in ss 11 and 12.”[17]

13. (1947) 75 CLR 409; [1947] HCA 53.

14.    Davis at 418.

15.    Davis at 419.

16.    Davis at 425.

17. Sections 11 and 12 of the 1898 Act provided that persons having been admitted as a solicitor, or as a barrister in another State, ‘shall be entitled’ to be admitted as a barrister.

14. In R v Way [18] the Court of Criminal Appeal considered the operation of s 54B(2) of the Sentencing Procedure Act, which then provided that, with respect to offences listed in a Table to Pt 4, Div 1A, the court “is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting” some other period. [19] It described the provision as “framed in mandatory terms”. [20] However, in Muldrock v The Queen [21] the High Court held that “it was an error to characterise s 54B(2) as framed in mandatory terms.”[22] It said that “[t]he provision must be read as a whole” and it was “a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word ‘unless’.”[23]

    18. (2004) 60 NSWLR 168; [2004] NSWCCA 131.

    19.    Way at [60] (emphasis added by Court).

    20. Way at [62].

    21. (2011) 244 CLR 120; [2011] HCA 39.

    22. Muldrock at [25].

    23. Muldrock at [26].

Application of principles

15. Three broad conclusions can be drawn from the foregoing discussion. First, “shall” and “must” are by no means necessarily interchangeable. Secondly, the statement in s 9(2) of the Interpretation Act, namely that “shall”, if used to impose a duty, indicates that the duty must be performed, is question begging; the real issue will usually be whether the word is used to impose a duty. Thirdly, as is almost universally true, to strip a word from its context in order to give it some generic meaning is a wrong approach, even if the result is correct in a particular case. Context may qualify an apparently mandatory term such as “must” or “is to”.

16. Having regard to these propositions, it is necessary to consider whether s 154E qualifies what may otherwise be seen to be imperative language in s 85(3) of the Residential Tenancies Act. That question may properly be answered by having regard to three factors, namely (i) the terms of application within s 154E; (ii) the factors which it prescribes as mandatory considerations, and (iii) the structure of the legislation, including its historical development.

17. The first consideration is inconclusive. The application of s 154E, in its terms, is to impose a set of considerations upon the Tribunal when the Tribunal is “considering whether to make a termination order for a social housing tenancy agreement”. If the Tribunal has power to make a termination order under s 85(3) with respect to a social housing tenancy agreement, then clearly it must on every application consider whether to make such an order. I agree with the primary judge that that language is not expressly limited to the exercise by the Tribunal of particular functions which may appropriately be described as “discretionary powers”.

18. The second consideration cannot be so readily disposed of. In making an order under s 85(3) the Tribunal must first be satisfied that the preconditions to the making of such an order have been met. Secondly, in making such an order it must also make an order for possession of the premises specifying the day on which the order takes or took effect, pursuant to s 83(1) of the Act. Accordingly, there is a second evaluative or discretionary element involved in making the order. Nevertheless, accepting that the Tribunal undertakes a judicial (or quasi-judicial) function, the considerations stated to be mandatory in s 154E(1) have little to do with the factors which are to be addressed in determining an application under s 85. Those considerations allow for findings that the tenant has been, on the one hand, a model tenant or, on the other hand, an intolerably disruptive force within the community, or some position in between. None of those findings has any bearing upon whether a termination notice has been properly given and whether the tenant has in fact vacated the premises or not, within the terms of s 85.

15. Section 85(4) provides that a periodic agreement cannot be terminated pursuant to that provision if the tenant has been in possession for 20 years; it makes no such exception for a model tenant. Yet if s 154E has any application, it must presumably allow the Tribunal at least a power not to make a termination order under s 85(3) in the case of a model tenant who has a social housing tenancy agreement. One would not expect such radical surgery to be undertaken within the terms of a single statute without express provision to that effect. However, accepting that their argument effectively turned s 85(3) into a discretionary power in the case of a social housing tenancy agreement, the respondents contended that such a possibility had been expressly envisaged by s 137 requiring that a provision in Pt 7 must prevail to the extent of inconsistency.

16. Conceding that theoretical possibility, the argument should not be accepted. Within Div 5 of Pt 7, dealing with termination of social housing tenancy agreements, there are provisions equivalent to s 85(3). For example, subdiv 1 deals with what is described as the “eligibility ground”, allowing for a termination notice to be given to a tenant who is not eligible for social housing. [24] Section 147 provides:

147   Termination by Tribunal on eligibility ground

(1)   The Tribunal must, on application by the landlord under a social housing tenancy agreement, terminate the agreement on the eligibility ground if it is satisfied that:

(a)   any notice required to be given, or any review required to be carried out, was given or carried out in accordance with this Subdivision before giving the termination notice on the eligibility ground, and

(b)   a termination notice has been given in accordance with this Subdivision, and

(c)   the landlord has determined, as a result of an assessment under this Subdivision, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies.

(2)   In deciding whether or not to make an order, the Tribunal is not to review the eligibility of the tenant to reside in the class of social housing premises to which the agreement applies.

24. Residential Tenancies Act, s 143.

21. The same repugnancy arises with respect to the terms of s 147 (and indeed s 151 in relation to the “alternative premises ground”) as arises with respect to s 83(5). Section 137 cannot resolve this conflict. By way of contrast, there are other powers conferred under Pt 7, Div 5 which do allow for discretionary termination by the Tribunal, although in each case the section in Pt 7 envisages that termination will take place under a provision in Pt 5, subject to qualifications. [25] Where the Tribunal is exercising a discretionary power, there is no necessary inconsistency in identifying further factors which it shall take into account. Such additional considerations would only give rise to inconsistency, whether either expressly or by implication, if the power-conferring provision set out the only considerations which could be taken into account. There was no suggestion that that difficulty arose with the powers in Pt 5 which were otherwise available to the Tribunal.

    25. See, eg, Residential Tenancies Act, s 154A, s 154B and s 154D.

22. The relationship between s 154E and mandatory powers in sections within Pt 7 cannot be resolved by reference to a paramountcy provision such as s 137, each provision being within Pt 7. On the other hand, if it can be concluded (as it should be) that s 154E has no operation with respect to mandatory powers within Pt 7, it readily follows that it was not intended to have any operation with respect to mandatory powers in Pt 5 of the Act.

23. The third consideration is that which flows from the structure of the Act and its history. However, as was noted above, the power to terminate a social housing tenancy agreement pursuant to s 85 can only arise if the provisions for termination under Pt 5 generally operate with respect to social housing tenancy agreements. In fact, there is no doubt that they do, for two reasons. First, Pt 7, Div 5, does not provide a code with respect to the termination of social housing tenancy agreements. That follows from the terms of s 155:

155   Operation of Division

This Division is in addition to, and does not limit, any other right conferred on a landlord of a social housing tenancy agreement as a landlord under any other provision of this Act.

24. That conclusion is confirmed by the express acceptance throughout Pt 7, Div 5 that termination may occur under various provisions of Pt 5, namely ss 87, 88, 89, [26] and 90 and 91. [27] The absence of express reference in Pt 7, Div 5 to s 85 cannot give rise to any contrary inference in the face of the express language of s 155.

    26. See ss 154A and 154B.

    27. See s 154D.

25. Secondly, there is a curiosity as to the placement of s 154E. Part 7, Div 5 of the Act was replaced and substantially restructured by the Residential Tenancies and Housing Legislation Amendment (Public Housing – Antisocial Behaviour) Act 2015 (NSW). Prior to that, Pt 7, Div 5 had no separate subdivisions, although it had specific provisions dealing with termination on grounds relating to (i) eligibility, (ii) offers of alternative housing, (iii) breach and (iv) failure to enter into an acceptable behaviour agreement. Since the amendments, each ground has been the subject of a separate subdivision, together with a final subdiv 5 capping the period for which an order for possession is not to take effect (s 154G) and dealing with the operation of the Division discussed above (s 155). Section 154E falls within subdiv 4, dealing with termination for breach of agreement. Each of the powers of the Tribunal conferred under subdiv 4 contains a discretionary power, although, absent certain exceptions, there are imperative obligations in s 154D(1) and (2). Accordingly, there is much to be said for the view that the inclusion of s 154E within subdiv 4 was intended to operate with respect to terminations covered by that subdivision. Were it more generally applicable, one would expect it to have been included in subdiv 5 with other miscellaneous provisions which operate generally in relation to the Division. Support for that conclusion is derived from the fact that s 154E is in very similar terms to an earlier provision, s 152, which applied to termination “on the ground of a breach by the tenant”. It is true that that particular phrase was omitted from the replacement provision, but the fact that it appears in subdiv 4 dealing with “Breach of agreement” suggests that the omission was not a deliberate expansion of the scope of the provision, but rather the removal of words which, with the restructuring, had become otiose.

Conclusion

26. For these reasons, s 154E should not be construed as affecting the mandatory terms of s 85(3). Accordingly, the Tribunal was correct in rejecting the respondents’ arguments and the primary judge was in error in accepting them.

27. MEAGHER JA: The ultimate question in this appeal was whether the NSW Civil and Administrative Tribunal is required to consider the matters in Residential Tenancies Act 2010 (NSW) (the Act), s 154E(1) in exercising its power under s 85(3) of the Act in relation to the termination of a social housing tenancy agreement. The primary judge (Adamson J) answered that question in the affirmative: Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424. Taking the opposite view, this Court at the conclusion of argument on 24 November 2017 made the following orders:

1. Extend time to file the application for leave to appeal to 13 June 2017.

2. Grant the applicant leave to appeal.

3. Allow the appeal and set aside the orders made in the Common Law Division on 19 April 2017.

4. Direct that the order for possession made by NCAT on 25 November 2016 take effect on 22 December 2017.

5. Otherwise dismiss the summons for leave to appeal to the Supreme Court.

6. Order that the plaintiffs pay the costs of the proceedings in the Common Law Division.

7. Order that the respondents pay the appellant’s costs in this Court.

8. Grant the respondents in this Court a certificate under the Suitors Fund Act 1951 in relation to the appeal in this Court and, if available, in relation to the appeal in the Common Law Division.

9. Reserve reasons.

28. In what follows, I consider the reasoning of the primary judge and give my own reasons for joining in the orders of the Court. The two critical provisions, and the facts and procedural history giving rise to the appeal, are set out in the judgment of Basten JA.

The primary judgment

29. The primary judge regarded the word “considering” in s 154E as capable of describing any exercise of judgment by the Tribunal, including the process of becoming satisfied of the two conditions in s 85(3), which enliven a power to terminate that “must” be exercised: Judgment [34], [36], [37]. Next, her Honour characterised that obligation as directly inconsistent (in the sense used by Dixon J with reference to s 109 of the Constitution in Victoria v The Commonwealth (1937) 58 CLR 618 at 630) with the requirement in s 154E(1) to consider five matters before deciding to terminate a social housing tenancy agreement: Judgment [41]–[45]. Applying s 137, her Honour resolved that inconsistency in favour of s 154E(1), as the only of the two inconsistent provisions in Part 5. In turn, her Honour held that s 155 was not intended to override the primacy given by s 137 and was not engaged because s 154E did not affect a “right” of a landlord: Judgment [46], [48].

30. To give ss 85 and 154E a “harmonious reading”, her Honour concluded at Judgment [49]:

… the Tribunal, when considering whether to terminate a social housing agreement pursuant to s 85, is obliged to consider not only whether the three matters in s 85 have been established, but also each of the matters listed in s 154E. If, after having had regard to those matters, the Tribunal considers that the social housing agreement ought be terminated, then, as long as the matters referred to in s 85 have been established, then it will proceed to terminate it. If, however, the Tribunal, having regard to the matters in s 154E, does not consider that the social housing agreement ought be terminated, it will decline to do so, notwithstanding that the matters referred to in s 85 have been established by the social housing provider.

31. It was ultimately common ground that the effect of that construction is to read s 85(3) in its application to social housing tenancy agreements as conferring a discretionary power to terminate, in relation to which it is mandatory to have regard to the matters in s 154E(1).

32. Her Honour supported that conclusion by reference to two features of the legislative history of s 154E: Judgment [51]–[60]. First, unlike its precursor, s 154E contained no express limitation to termination “on the ground of a breach by the tenant”. Secondly, the observation that “[e]victing tenants is a last resort” in the Second Reading Speech to Residential Tenancies and Housing Legislation Amendment (Public Housing–Antisocial Behaviour) Act 2015 (NSW) (which inserted subdiv 4 of Part 5) was said to reinforce that a purpose of that legislation was to “maintain the security of tenure of social housing tenants”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 August 2015 at 14.

The proposed appeal

33. By summons filed on 13 June 2017, the applicant sought an order extending the time for filing and service under Uniform Civil Procedure Rules 2005 (NSW), r 51.10(2) and leave to appeal from the primary judgment under Supreme Court Act 1970 (NSW), s 101(2). The applicant had filed a Notice of Appeal on 12 May 2017, the competency of which was properly disputed by the respondents on 6 June 2017. The respondents did not oppose the application for an extension of time. As the proposed appeal raises a question of construction concerning the operation of legislation of public importance and general application, it was plainly one in relation to which leave to appeal should be granted.

34. The proposed grounds of appeal assert error in her Honour’s conclusions: that “considering whether to make a termination order” includes becoming satisfied of the conditions in s 85(3); that s 154E applies to any determination in exercising a power to terminate a social housing tenancy agreement; and that ss 85(3) and 154E are inconsistent.

The construction of s 154E

35. The relevant principles are not controversial. The object is to determine the legal meaning of the statutory language in light of its context and purpose. In doing so, coherence with the language and purpose of the other provisions in the statute is strongly preferred. Thus, any apparent conflict “must be alleviated, as far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], [70], [78] (McHugh, Gummow, Kirby and Hayne JJ). Real conflicts, “requiring the application of a conflict resolution rule” such as s 137, are and ought to be rare: Mark Leeming, Resolving Conflicts of Laws, (2011, Federation Press) at 47.

36. In general terms, Part 5 deals with the termination of residential tenancy agreements, and Part 7 with social housing tenancy agreements, a subset of residential tenancy agreements (s 136). Division 5 of Part 7 specifically addresses the termination of social housing tenancy agreements. The issue between the parties assumes that s 154E is not confined in its operation to subdiv 4 of Div 5 of Part 7, headed “Breach of agreement”.

37. In its terms, s 154E regulates the exercise of “considering whether to make a termination order for a social housing tenancy agreement”. It presupposes that another provision of the Act confers a power or powers “to make a termination order for a social housing tenancy agreement”. It also presupposes that the Tribunal is authorised or required to undertake the function of “considering whether” to exercise that power. In its operation, the section prescribes five matters to which the Tribunal “must” have regard “[i]n” undertaking that function.

38. The interrogative “whether” is ordinarily used to introduce the first (as in this case), or both, of alternative possibilities. In s 154E, its use suggests the possibility of the Tribunal declining to exercise the power of making an order after, and by reason of, having undertaken the function of “considering whether” to do so. The existence of that possibility is essential to there being any utility in s 154E mandating regard to specified matters in the course of the Tribunal’s consideration. Accordingly, given its ordinary and natural meaning, s 154E only mandates regard to matters in considering whether to exercise a power to terminate which is independently discretionary, rather than coupled with a duty to exercise. Adopting that construction, s 154E has no application to a mandatory power, such as that conferred by s 85(3).

39. Furthermore, the prescribed matters in s 154E relate to the tenant’s relationship with his or her landlord and the interests of persons who are not parties to the social housing tenancy agreement, such as neighbours and other tenants of the landlord. They are wholly extraneous to whether the Tribunal is satisfied as to the conditions in s 85(3), which address the termination notice given by a landlord and the vacating of premises by a tenant. Even if becoming so satisfied amounts to “considering”, as held by the primary judge, the Tribunal could not meaningfully have regard to the prescribed matters “[i]n” so considering. On her Honour’s construction, and as the respondent accepts, any regard to the matters in s 154E would have to occur after the Tribunal has undertaken its “considering” function in relation to s 85(3). In this respect, the respondent’s argument must depart from the language of s 154E in order to support a departure from the language of s 85(3).

40. The construction which I have adopted is consistent with the heading to s 154E, which, although not part of the Act, is persuasive extrinsic material: Interpretation Act 1987 (NSW), ss 34(1), 35(2)(a), (5). It is not displaced by the legislative history of s 154E (for the reasons given by Basten JA at [25] above) nor by the quoted observation in the Second Reading Speech, the context of which is as follows:

Evicting tenants is a last resort, but it has to be done in some cases because the obligation of Family and Community Services to neighbours, many of whom are small children, the elderly or those who have other vulnerabilities, including mental illness, cannot be ignored.

41. Finally, it is instructive to contrast s 154E with s 147(2) (extracted by Basten JA at [20] above). Although the latter provision begins with a similar adverbial phrase (“In deciding whether or not to make an order”), its context and subject matter direct its operation to a specific, mandatory power. Rather than prescribing regard to matters, it prohibits regard to the reasons underlying a landlord’s determination as to a tenant’s eligibility, to which the immediately preceding s 147(1)(c) refers.

42. In my view, there is no conflict between ss 85(3) and 154E. Had s 154E been ambiguous, any apparent conflict would be resolved by construing its introductory language in the manner which I have. That makes it unnecessary to consider the operation of ss 137 and 155, which in any case could not resolve any conflict internal to Part 7, such as may arise on the primary judge’s construction, between s 154E and ss 147 and 151.

43. SIMPSON JA: I joined in the orders made on 24 November 2017. The reasons I did so are reflected in the judgment of Meagher JA, which I have read in draft. I also agree with the analysis of Basten JA with respect to the construction of the word “must” as it appears in s 85(3) of the Residential Tenancies Act 2010 (NSW).

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Endnotes

Amendments

12 December 2017 - Coversheet: statute names amended

[10] "Act" amended to "act"

[13] "same provision the following" amended to "same provision in the following"

[32] "s 153E" amended to "s 154E"

Decision last updated: 12 December 2017