Department of Housing and Public Works v Roesen - [2014] QCAT 558

CITATION:

Department of Housing and Public Works v Roesen [2014] QCAT 558

PARTIES:	Department of Housing and Public Works (Applicant)
v
Paul Roesen (Respondent)

APPLICATION NUMBER:

MCDT2116-14

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

26 September 2014

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Howe

DELIVERED ON:

6 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application dismissed.

CATCHWORDS:

Residential tenancy matters - application for termination for serious breach – retrospective application – common law and statutory presumption against retrospective application of legislation – consideration of extraneous material in construction of the statute – breach of fundamental legislative principle against retrospective legislation

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Represented by Kerylie Sattler and Bernie Courtney, officers of the Department of Housing and Public Works

RESPONDENT:

Paul Roesen appeared on his own behalf

REASONS FOR DECISION

The Department of Housing and Public Works (the department) has applied to the Tribunal to terminate Mr Roesen’s State tenancy agreement on the grounds of serious breach. Mr Roesen has been in the rented premises since approximately 30 March 2010. The department issued Mr Roesen with a notice to leave in form 12 on 19 August 2014. The stated grounds for issue of the form 12 is that he had used the premises for any illegal activity. The application is made on the grounds of serious breach pursuant to s 290A of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
The evidence tendered to support the assertion of serious breach was an affidavit by Ms Sattler whereby she deposed to a conversation she had with Mr Roesen at the rented premises on 12 June 2014 where she asked him whether the police had attended his unit and for what reason. He had responded that police had been to his unit “more than once and on one of the visits it was a drug raid and that the police found a ‘kilo of weed’ in the cupboard and… this belonged to his friend who left it there.” Additionally in her affidavit she said on 29 August 2014 she had received a telephone call from a concerned neighbour who complained about an increase in random people at the unit coming and going at all hours. The caller said the people were “scary” and believed they were “doing drugs”. The caller was anonymous.
A police officer attended at hearing. He said police records showed there had been a drug raid at the rented premises on 14 November 2012 and on 11 August 2013. Drugs were found on both occasions. These were the raids relied on by the Department to found their application for termination of the tenancy because of serious breach.
Subsequent to the raid in August 2013 however the police have raided the premises three times and have not found drugs. Mr Roesen’s evidence is that it took the charges against him arising out of the offence in August 2013 seriously and has had no drugs on the rented premises since then.
Section 290A provides:
“Notice to Leave because of serious breach
(1) The lessor may give a notice to leave the premises to the tenant if the lessor reasonably believes the tenant, an occupant, a guest of the tenant or a person allowed on the premises by the tenant has-
(a) used the premises … for an illegal activity;
…
(3) A lessor may form a reasonable belief that premises or property has been used for any illegal activity whether or not anyone has been convicted or found guilty of an offence in relation to the activity.
(4) In this section –
lessor means -
(a) the chief executive of the department in which the Housing Act 2003 is administered, acting on behalf of the State; or
(b) a community housing provider.”
Section 290A took effect as and from 7 November 2013. The drug raid relied on by the Department to found the application for termination of Mr Roesen’s tenancy on the grounds of serious breach occurred some three months before that was law and the application available to the department.
Does section 290A have retrospective effect? The wording is unclear. Generally, there is a presumption against a statute having retrospective effect. “There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement.”[1]
[1]Fisher v Hebburn Ltd [1960] HCA 80 at [9] per Fullagar J; (1960) 105 CLR 188.
In Czysnok v Jaques Ltd [1993] NSWCA 80, Mahoney JA referred to the following passage in Halsbury’s Laws of England[2] when discussing whether the legislation considered there had retrospective application. “It has been said that ‘retrospective’ is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any statute that operates on cases or facts coming into existence before its commencement, in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct.”
[2]4^th ed volume 44 at para 921.
This common law presumption has been given statutory force in all States and Territories and in the Commonwealth Acts Interpretation Act 1901. In Queensland, by s 20(2) of the Acts Interpretation Act 1954 the repeal or amendment of an Act does not -:
(b) affect the previous operation of the Act or anything suffered, done or begun under the Act; or
(c) affect a right, privilege or liability acquired, accrued or incurred under the Act.
What is meant by affecting rights and liabilities, and not affecting the previous operation of an Act or anything done or begun under the earlier Act? Dixon CJ said in Maxwell v Murphy: “The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate in immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise passed and closed.”[3]
[3][1957] HCA 7 at 7; (1957) 96 CLR 261.
The introduction of a new ground available to the State to terminate a State tenancy, that is on the ground of serious breach, is, in my opinion, far more than procedural governance of existing rights and liabilities. Under the legislation in force prior to introduction of the serious breach ground of termination, the department was restricted to an application to terminate for breach of the tenancy agreement or perhaps an application to terminate on the ground of objectionable behaviour. If the latter, based perhaps on the tenant causing serious nuisance to people occupying premises nearby, the Tribunal was permitted to make a termination order if it was satisfied that the applicant had established the ground of the application and the behaviour justified terminating the agreement.[4] In deciding if the behaviour justified termination the Tribunal could have regard to the recurrence or otherwise of the behaviour.[5]
[4]Section 345(1).
[5]Ibid s 345(2).
If the application was based on breach of a term of the tenancy agreement such as the tenant using premises for any illegal purpose, then the Tribunal was able to make a termination order, but only if it was satisfied the ground of the application was made out and that the breach justified termination.[6] In deciding if the breach justified termination the Tribunal was required to have regard to the seriousness of the breach, any steps taken by the tenant to remedy the breach, whether the breach was recurrent, whether the lessor had acted reasonably about the breach and any other issues it considered appropriate.[7] Furthermore, before issuing a form 12 Notice to Leave the lessor was obliged to first issue a form 11 Notice to Remedy Breach and give the tenant an opportunity to remedy the breach.
[6]Ibid s 337(2).
[7]Ibid s 337(3).
Indeed in the matter at hand, the department’s alternate application for termination is based on Mr Roesen’s breach of clause 19(2)(a) of the tenancy agreement, asserting that the tenant had used the premises for an illegal purpose. Given there has been no form 11 Notice to Remedy Breach, termination on that ground cannot succeed.
The difference in an application by the State to terminate in reliance on grounds such as objectionable behaviour and breach of the terms of the tenancy agreement before s 290A came into effect, and an application for serious breach after section 290A became law, is marked. In applications for serious breach, no form 11 is necessary[8] and the discretionary factors the Tribunal was otherwise required to consider do not apply. All that is necessary to found the application and to succeed on it is for the department to have a reasonable belief that premises or property has been used for an illegal activity regardless of whether anyone has been convicted or found guilty of an offence.
[8]4Walls Ltd t/as Compass Qld v Karina Kjaer-Olsen [2014] QCATA 278.
“There can be no doubt that the general rule is that an amending enactment – or for that matter, any enactment – is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement.”[9] Allowing section 290A retrospective operation affects liabilities or rights and attaches a legal consequence to incidents that occurred before it was law when they had no such legal consequence.
[9]Fisher v Hebburn [1960] HCA 80 at [9] per Fullagar J.
Is the available extrinsic material of assistance in the interpretation?[10] The explanatory notes to the Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013, which introduced section 290A state at page 3 with respect to achievement of policy objectives, “the bill will also allow the department and CHPs to act more swiftly and directly when serious and/or persistent antisocial behaviour is occurring in public and community housing.” I note the present tense usage.
[10]Acts Interpretation Act 1954 (Qld) section 14B.
In discussing antisocial behaviour, the explanatory notes say, “section 290A provides that a lessor may form a reasonable belief that premises are being used for an illegal activity whether or not the tenant has been convicted or found guilty of an offence in relation to the activity. This may be considered to impact on the rights of tenants where eviction action could be taken before any conviction has occurred.” Again, I note the present tense.
The serious breach procedure is acknowledged as being strong action, and a reason justifying it is “(w)aiting for a criminal charge and conviction can take many months to occur, and in the meantime repeated illegal and possibly dangerous activities may be continuing in the rental properties. In some cases police have reported having to attend properties repeatedly where criminal behaviour is occurring on a regular basis.”
In my opinion, the explanatory notes make it clear that section 290A is intended to capture and end summarily ongoing presently occurring misbehaviour or illegal activity. There is no suggestion it is to be used as a penalty to punish past misbehaviour that occurred before the provision became law.
One also notes, and perhaps this is the strongest indication that the amendments were not intended to have retrospective application, there is no mention in the explanatory notes of breach of the fundamental legislative principle against retrospective application of legislation adversely affecting rights and liberties or imposing obligations.[11] Conformity of the legislative amendments with fundamental legislative principles is discussed in the explanatory notes. But there is no mention of any issue arising with respect to retrospectivity. Had the provisions been intended to have retrospective effect, surely that would have been addressed and explained in the explanatory notes.
[11]S 3(g) Legislative Standards Act 1992
Accordingly, I conclude section 290A was not intended and does not have retrospective application. The application seeking termination of Mr Roesen’s tenancy on the basis of serious breach must therefore fail given the circumstances relied on occurred before section 290A became law.
The application is dismissed.