King v Director of Housing
[2013] TASFC 9
•2 October 2013
[2013] TASFC 9
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: King v Director of Housing [2013] TASFC 9
PARTIES: KING, Angela
v
DIRECTOR OF HOUSING
FILE NO: 1144/2012
JUDGMENT
APPEALED FROM: King v Director of Housing [2012] TASSC 82
DELIVERED ON: 2 October 2013
DELIVERED AT: Hobart
HEARING DATE: 16 May 2013
JUDGMENT OF: Tennent, Porter and Wood JJ
CATCHWORDS:
Administrative Law – Decisions to which judicial review legislation applies – Meaning of decision – Particular cases – Director of Housing as a statutory corporation – Decision not to renew lease – Decision to serve notice to vacate – Whether "decisions" – Both decisions substantive and deliberative in nature.
Judicial Review Act 2000 (Tas), ss4(1), 5.
Guss v Commissioner of Taxation (2006) 152 FCR 88, considered.
Aust Dig Administrative Law [1007]
Administrative Law – Judicial review – Reviewable decisions and conduct – Decisions to which judicial review legislation applies – Decisions under an enactment – Decisions under contracts – Director of Housing as a statutory corporation - Decision not to renew lease – Decision to serve notice to vacate – Decisions not made under an enactment – Force and effect derived from contractual relationship and the operation of the general law.
Judicial Review Act 2000 (Tas), s4(1).
Griffith University v Tang (2005) 221 CLR 99, applied.
Aust Dig Administrative Law [1011]
REPRESENTATION:
Counsel:
Appellant: C Gunson and K Mooney
Respondent: P Turner
Solicitors:
Appellant: Benedict Bartl
Respondent: Director of Public Prosecutions
Judgment Number: [2013] TASFC 9
Number of paragraphs: 76
Serial No 9/2013
File No 1144/2012
ANGELA KING v DIRECTOR OF HOUSING
REASONS FOR JUDGMENT FULL COURT
TENNENT J
PORTER J
WOOD J
2 October 2013
Order of the Court
Appeal dismissed.
Serial No 9/2013
File No 1144/2012
ANGELA KING v DIRECTOR OF HOUSING
REASONS FOR JUDGMENT FULL COURT
TENNENT J
2 October 2013
I have read the draft reasons of Porter J in this matter. I agree with those reasons. I would also dismiss the appeal.
File No 1144/2012
ANGELA KING v DIRECTOR OF HOUSING
REASONS FOR JUDGMENT FULL COURT
PORTER J
2 October 2013
Introduction
This appeal primarily concerns whether two associated decisions made by the Director of Housing are subject to review under the Judicial Review Act 2000 (the JRA). The decisions were that the appellant's lease from the Director of a residential property would not be extended or renewed, and that she would be served with a notice to vacate the premises.
The appeal is from the judgment of Blow J (as he then was) dismissing the appellant's application for review under the JRA: King v Director of Housing [2012] TASSC 82. His Honour held that as the decisions were not reviewable, the Court had no jurisdiction. The issues for determination in this appeal involve an examination of the nature of a decision to which the JRA applies. The questions are whether each of the so-called decisions was a "decision", and whether, if it was, it was a decision "made under an enactment". Although the ground of review, that of a denial of natural justice was argued before the primary judge, his Honour dealt only with the question of jurisdiction. Both the jurisdictional question and the natural justice issue were argued in this Court, but in my view, for the reasons which follow, the appeal is without merit.
Background
The appellant had the benefit of public housing. Under the Homes Act 1935 (the HA), the Director of Housing is a corporation sole and is authorised to deal with land under that Act. The agency through which the Director operates is known as Housing Tasmania. On 6 November 2009, the appellant and the Director entered into a fixed term lease which was to expire on 6 February 2010. After that date, a number of agreements to extend the lease term were made. The last of these was on 15 February 2012, extending the lease term to 6 May 2012.
By an undated notice, but apparently served on 20 April 2012, the appellant was given notice that the lease was due to expire on 6 May 2012, and that as it would not be extended or renewed, she must vacate the premises. The notice required the appellant to vacate the premises on 7 May 2012.
By originating application filed on 9 July 2012, the appellant sought review under the JRA "for review of a decision and/or conduct of the Director of Housing made or occurring on or prior to 20 April 2012 … whereby it was decided and she was notified that she was to vacate premises leased by her from the Director of Housing … and that her lease of those premises was not to be extended or renewed". The basis of the relief sought was limited to that provided for in the JRA; no other jurisdictional basis was relied on.
The first ground of the application was that there had been a breach of the rules of natural justice within the meaning of ss17(2)(a) and 18(2)(a) of the JRA, in that the appellant had "been required to vacate the premises, and ha[d] been informed that her lease would not be extended or renewed without any reason given in circumstances where she had been a tenant …. since 6 November 2009 and her fixed term had been routinely extended on 4 occasions prior to the date of the decision".
The second ground of the application was that the decision was an improper exercise of power within the meaning of ss17(2)(e) and 18(2)(e), in that part of the Director's "Procedures supporting the Leases and Tenure Policy" required tenants with an unsatisfactory tenancy history to be advised in writing of the reasons their lease would not be extended. Tenants could appeal a decision that their tenancy history was unsatisfactory. The decisions in this case were said to circumvent that policy document and the appeal process referred to. The originating application did not specify what relief was sought. It was agreed that if the primary judge held that the decisions were reviewable and that the appellant was denied procedural fairness, further submissions would be received about consequential orders under s27 of the JRA.
Various published Housing Tasmania "policy" and "procedures" documents were before the primary judge. The two principal ones were entitled "Leases and Tenure Policy" and "Procedures supporting the Leases and Tenure Policy". The documents showed that Housing Tasmania's stated policy was to first offer a fixed term tenancy of six months, after which most tenants would be offered a lease for no fixed term, subject to the tenant's choice. Some tenants would be required to enter into further fixed term leases "due to previous issues relating to their tenancy". Two months before a fixed term lease ended, a tenancy officer was to review the tenancy. An assessment was to be made as to whether or not the tenancy history was satisfactory. The categories of assessment were "satisfactory", "less than satisfactory", or "unsatisfactory". The assessment determined whether there was an extension for no fixed term, an extension for a fixed term, or no extension with action taken to end the tenancy.
A tenancy history was regarded as unsatisfactory if there had been serious or repeated breaches warranting termination of the tenancy. The tenant would be invited to provide information about any special circumstances that may have contributed to their tenancy history not being satisfactory. Tenants with a less than satisfactory tenancy history would be only offered a further fixed term of up to six months, and advised in writing of the reasons. As to tenants with an unsatisfactory history, the tenancy officer was to recommend no extension, with the tenant required to vacate at the end of the lease. Under the document referred to in the second ground of the application, tenants could apply for a review of decisions concerning management of their lease term. Such reviews were to be conducted by the "Housing Review Committee".
It is common ground that the stated procedures were not complied with. The evidence shows that the appellant was not told before receipt of the notice to vacate that the lease would not be extended or renewed. She was not advised that she was in breach of "acceptable conduct standards" to which she had subscribed, and was not told of any complaints against her. When the appellant asked of Housing Tasmania why it was that she was being evicted, she was told that "the tenancy has not worked out". She w as also told that a review was not available because that process was only available to tenants who had breached their lease. Reasons later requested on her behalf were not provided. The respondent did not provide any explanation to the primary judge as to why the decisions were made, or the published procedures not followed.
The argument before the primary judge proceeded on the basis that there was one decision sought to be reviewed. The Director of Housing successfully argued that the Court did not have jurisdiction to review that decision under the JRA, as it was not a decision to which the Act applied. In his reasons, the primary judge took the view that there were two separate but associated decisions, although nothing seems to turn on his Honour's approach. The argument in this appeal assumed that there were two decisions as described by the primary judge.
For the purposes of the argument at first instance, the primary judge was required to examine provisions of the HA, and the Residential Tenancy Act 1996 ("the RTA").
The provisions of the JRA
Section 17(1) of the JRA provides that a person who is aggrieved by a decision to which the Act applies may apply to the Court for an order of review relating to the decision.
In s4(1) of that Act, the following definition of relevant decisions appears:
"'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)."
The Homes Act 1935
The long title of the the HA is as follows:
"An Act relating to the provision of housing assistance to, and improving the housing conditions of, persons in this State and the undertaking of activities that are consistent with the achievement of those purposes".
Section 6 of the HA is in the following terms:
"6 Extent of powers
The purposes of this Act include the development or use of, or dealing in, any land (whether or not that land has been granted to or acquired by the Director) in such manner as the Minister is satisfied is consistent with the provision of dwelling-houses and services complementary to the provision of those dwelling-houses."
By virtue of s6A, the Governor appoints the Director of Housing. Section 6A(3) provides as follows:
"6A Director of Housing
…
(3) For the purpose of acquiring, holding, disposing of, and otherwise dealing with, land under this Act, the Director shall be a corporation sole by the name of the Director of Housing, and by that name shall have perpetual succession and a seal of office."
Section 6(3A) confers certain powers on the Director, one of which is that he may:
"(d) do all such acts and things as may be required or necessary or appropriate for exercising the powers given to the Director under this or any other Act."
The last provision of the HA which is of relevance is s16. That provides as follows:
"16 Letting of dwelling-houses
"(1) Subject to this section, the Director may let any dwelling-house on such terms and conditions as he sees fit.
(2) The Director shall exercise his powers under this section in such a manner as to ensure that, as far as practicable, the rents received under this section are sufficient to cover —
(a)the cost of the amortization of, and the interest on, the capital cost of the dwelling-houses let under this section; and
(b)the rates and taxes payable on, the cost of the insurance and maintenance of, and the other outgoings payable in respect of, those dwelling-houses."
The Residential Tenancy Act 1996
It is common ground that the Director is subject to the provisions of the RTA. That Act makes provision for the expiry, extension and renewal of fixed period residential tenancy agreements. Sections 11 and 12 are in the following terms:
"11 Expiry
(1) A residential tenancy agreement for a fixed period, unless earlier terminated under Part 4, expires —
(a)on a date specified in the agreement; or
(b)if a date is not specified in the agreement, on a date agreed on by both parties.
(2) If a residential tenancy agreement for a fixed period expires and it is not extended or renewed under section 12, a new residential tenancy agreement for no fixed period is established.
(3) A residential tenancy agreement established under subsection (2) is subject to the same terms and conditions that existed before that establishment.
12 Extension and renewal
(1) A residential tenancy agreement that has expired may only be extended or renewed within 28 days after it has expired.
(2) A residential tenancy agreement for a fixed period may only be extended or renewed by agreement in writing of the owner and the tenant."
Section 37(1) provides that a residential tenancy agreement is terminated only by specified means. Of six specified means, the relevant ones are as follows:
"(b) the delivery of vacant possession of the premises by the tenant to the owner following a notice to vacate by the owner; or
…
(d)the delivery of vacant possession of the premises by order of the Court to the owner; or
...
(e)the recovery of vacant possession of the premises by the owner following abandonment or early vacation of the premises."
Section 42 provides that an owner of residential premises may serve on a tenant of the premises a notice requiring the tenant to deliver vacant possession of the premises, on the grounds that a tenancy agreement expired less than 28 days before the service of the notice, or that a tenancy agreement is due to expire not more than 28 days after service of the notice: s42(1)(b) and (d) respectively. Section 45 enables an owner to apply to the Magistrates Court for delivery of vacant possession if the notice to vacate had taken effect and vacant possession had not been delivered to the owner. The Court could order that vacant possession be delivered to the owner if satisfied that the notice to vacate the premises was properly given, the reason for serving the notice was genuine or just, and vacant possession had not been delivered to the owner: s45(3)(a), (b) and (c).
The primary judge, having noted the term of the lease and the date of service of the notice to vacate, summarised the effect of the provisions of the RTA as follows:
"13 …
· The written residential tenancy agreement expired on the date specified in that agreement, namely 6 May 2012: s11(1)(a).
· By virtue of s11(2), because that agreement expired and was not extended or renewed, a new residential tenancy agreement for no fixed period was established.
· That new residential tenancy agreement can be terminated only in one of the ways listed in s37(1). Under s37(1)(d), it can be terminated by the delivery of vacant possession of the premises by order of the Magistrates Court to the owner. Under s37(1)(b), it can be terminated by the delivery of vacant possession of the premises by the tenant to the owner following the notice to vacate. Under s37(1)(e), it can be terminated by the recovery of vacant possession of the premises by the owner following their abandonment by the tenant.
· Under s45, the Magistrates Court may order that vacant possession be delivered to the owner. Such an order may only be made if the court is satisfied that, amongst other things, a notice to vacate the premises was properly given: s45(3)(a).
14 In practical terms, the result of the decision to serve the applicant with a notice to vacate was that it facilitated the making of an application to a magistrate for an order under s45 for the delivery of vacant possession. Once it had been decided not to extend the term of the applicant's lease, the Director had an opportunity to serve a notice to vacate relying on the expiry of the lease. If the opportunity to serve such a notice had not been taken at the appropriate time, and the applicant had remained in possession of the premises, then the Director might have found himself in a position where, unless the applicant failed to comply with a provision of her new tenancy agreement or committed a nuisance, he would have had no basis for serving a notice to vacate, and thus no basis for an application for an order for vacant possession."
The primary judge's reasons
The decision of the primary judge was based on an application of what the High Court said in Griffith University v Tang (2005) 221 CLR 99 (Tang) about the nature of a decision of an administrative character made under an enactment. In his reasons, the primary judge set out a passage from the joint judgment of Gummow, Callinan and Heydon JJ in Tang, which appears at 130 – 131 [89]. The primary judge only set out the first two sentences of par[89], but as it is the subject of much scrutiny in this appeal, I will set it out in its entirety:
"89The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice."
The primary judge considered a number of other aspects of the joint judgment in Tang, before setting out his conclusions as to whether the specified criteria were satisfied. His Honour's conclusions as to the Director's decisions were as follows:
"20In this case the decisions in question satisfy the first criterion referred to in Griffith University v Tang at par[80] [sic]. The Director and his delegates had the power to let a dwelling-house by virtue of s16(1) of the Homes Act. They had the power to 'do all such acts and things as may be … appropriate for exercising the powers given to the Director' under s6A(3A)(d). Under those provisions, they were empowered to terminate tenancies, and to take steps to obtain vacant possession of leased premises in connection with the termination of tenancies. The decisions in question were thus impliedly authorised by the Homes Act.
21However neither of the impugned decisions satisfied the second criterion. The decision not to extend or renew the applicant's lease was in substance a decision not to take a single step in a decision-making process. The lease could only have been renewed or extended by means of an agreement entered into by both parties. Such an agreement would have conferred new rights on the applicant, but they would have been rights under the general law, not rights under the Homes Act. The decision not to extend or renew the lease … was a decision not to make an offer which, if accepted, would have conferred new rights, and any such new rights would have been rights under the general law. The decision to serve the applicant with a notice to vacate was an effective unilateral decision, but it too was a decision under the general law – a decision that any landlord could make, rather than a decision deriving from the Homes Act.
22… The impugned decisions do not satisfy the second criterion referred to in par[89] of [Tang]. It follows that neither of them is a decision to which the JR Act applies. This application must therefore fail."
The appeal
There is one ground of appeal which asserts an error of law "by failing to find that each of the impugned decisions were decisions of an administrative character made under an enactment or otherwise amenable to an order of review" under the JRA. At this point, the separation by the primary judge of the impugned decision into two separate decisions needs to be mentioned. Separation may have been thought to assist in the characterisation of what occurred, or to be relevant to what relief may ultimately have been granted. But there is, with respect, an artificiality in that approach, although as I have noted, nothing seems to ultimately turn on the point.
Whilst in strict terms, it would be possible for an owner of a property to make a decision not to extend or renew a lease for a fixed term in isolation, it would almost inevitably be the case that such a decision would be made contemporaneously with, and as part of, a broader single decision. That is because of the terms of ss11 and 12 of the RTA. In practical terms, a decision not to extend or renew would be part of a decision that a lease for no fixed term be created, in which case nothing further need be done; alternatively it would be part of a decision that the owner retake possession. To properly achieve the latter, a notice to vacate would be required. Having said that, I think that the appeal should be considered in accordance with the approach of the parties which is based on the view taken by the primary judge.
Were "decisions" made?
The respondent submits that neither decision had the requisite degree of finality so as to be properly characterised as a "decision". Although this point was argued before the primary judge, his Honour did not expressly deal with it. The references to a decision "in substance", and "an effective unilateral decision" made in par[21] of the reasons might be an allusion to the argument, but in any event there was an implied rejection of the respondent's submissions.
This preliminary point was again argued in this Court, without objection. Rule 664(3) of the Supreme Court Rules 2000 provides that a respondent proposing to contend that some matter of fact or law has been erroneously decided, but not seeking a variation of the judgment or order actually given or made, need not give notice of cross-appeal.
The respondent relies on the well-known passage from the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, which is in the following terms:
"… [A] reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment."
Bond's case established that for a decision to be reviewable, it must be a final or operative decision, as distinct from an interim step taken in reaching a decision, except where that interim step is reviewable by express provision in the relevant statue. Additionally, the decision needs to resolve a substantive issue. As was submitted to the primary judge, the respondent argues that the decisions did not have the requisite degree of finality; they were "simply steps on a continuum" which resulted in either the appellant vacating the premises, which did not occur, or an order for vacant possession being made by the Magistrates Court under s45 of the RTA.
In this context, the respondent had submitted to the primary judge that a series of decisions could be identified: "a decision not to renew; a decision not to apply the policies; a decision to issue a notice to vacate; a decision to serve the notice to vacate; a decision to institute proceedings in the Magistrates Court once the notice to vacate has been served." (That submission may have been the genesis of the primary judge's treatment of the decision sought to be reviewed as involving two decisions.)
In support of the argument, the respondent heavily relies on the reasons of Greenwood J in Guss v Commissioner of Taxation (2006) 152 FCR 88. In that case, the Commissioner had estimated the amount of tax liability of a company, and sent a notice of that estimate, as a result of which the company was obliged to pay the amount. As a director of the company, the appellant was obliged to cause the company to do certain things in relation to payment, failing which he became liable to pay by way of penalty, an amount equal to the unpaid amount of the estimate.
At first instance, it was held that the Commissioner's decision to give the notice was not a decision of an administrative character made under an enactment. On appeal, it was held by Edmonds and Greenwood JJ, Gyles J dissenting, that the decision was not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The judges who were in the majority as to the outcome differed as to the basis for it. Edmonds J held that the decision did not satisfy the second criterion in Tang. Greenwood J took the view that the issuing of the notice was not a "decision", because it did not involve a process of deliberative evaluation.
Earlier in his reasons, Greenwood J said that only two matters were required to be determined in giving the penalty notice to the Director. The first was whether an estimate had been made, and notice of that estimate given to the company. The second was whether Mr Guss was, at the material times, a director. His Honour said that the determination of the latter "… did not give rise to any element of analysis, weighing of competing considerations by reference to any statutory criteria, assessments of the weight or balance to be struck in examining a body of fact or contention, the assessment of the proper application of policy considerations, the evaluation of conflicting merits or other such matters": 106 – 107 [71].
After considering a number of authorities, including Australian Broadcasting Tribunal v Bond (above), his Honour said at 107 – 108 [75]:
"It seems to me, consistent with authority, that a 'decision of an administrative character' in its primary sense (leaving aside for the moment the extended meaning of the term by force of s 3(2) of the ADJR Act) must exhibit two central features. First, there must be a determination, a resolution, a position taken, a judgment made by a decision-maker. Second, that determination must be the emanation of a consideration by the decision-maker or structural organs of an organisation charged with making a determination, of a matter of substance that necessarily involves some feature of deliberation, assessment or analysis that, in the ordinary course, would comprehend those facets of decision-making behaviour described at [71]." [original emphasis]
His Honour went on to refer to a passage from the judgment of Northrop J in Ricegrowers Co-op Mills Ltd v Bannerman (1991) 56 FLR 443 at 453. In that case, Northrop J said that for a "decision", mere thought processes were insufficient; in addition, there must be some overt act by which the conclusions reached as a result of those thought processes are manifested. An overt act might take the form of a verbal or written communication or "take the form of no action when otherwise a definite action would have been taken".
Returning to Guss' case, after considering cases involving notices under the Income Tax Assessment Act, Greenwood J said at 111 [88]:
"It is true that there are many examples in the authorities of a notice being issued or an instrument being brought into existence affecting legal rights and obligations which is taken to be the decision of the decision-maker. However, in each of those cases the issue of the notice or the instrument is a decision because it reflects an operative determination or resolution of a question in issue (normally of substance) arising out of a process of deliberative evaluation of relevant facts and circumstances upon which the issue of the instrument or notice is predicated. …".
At 112 [91] – [92], his Honour said that the decision was one involving "no evident operative determination or resolution emanating from the engaged process of reasoning or a consideration of particular facts and circumstances the resolution of which are required to enable a document, notice or instrument to issue as the overt manifestation of the decision". His Honour then turned to the extended definition of "decision" set out in s3(2) of the Administrative Decisions (Judicial Review) Act, which is in almost identical terms to s5 of the JRA. Section 5 is in the following terms:
"5 Meaning of 'making of a decision' and 'failure to make a decision'
In this Act, a reference to the making of a decision includes a reference to —
(a) making, suspending, revoking or refusing to make an order, award or determination; or
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; or
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; or
(d) imposing a condition or restriction; or
(e) making a declaration, demand or requirement; or
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do anything else —
and a reference to a failure to make a decision is to be construed accordingly."
At 113 [99], Greenwood J referred to what Mason CJ had said in Bond about the section:
"The examples of a decision listed in the extended definition are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute …": [170 CLR 321 at 336].
Greenwood J said that the section "does not bring each class of conduct within the scope of a 'decision' unless engaging in the nominated subject-matter also involves an operative determination of a matter in issue derived from the engaged process of reasoning". The act falling within the section must be the emanation of a deliberative process of the kind his Honour had described at [75] and [82] of his reasons (see above). In the end result, his Honour concluded at 113 – 114 [102], that the decision to issue the penalty notice flowed from a clinical fact that Mr Guss was a director of a company: "No process of reasoning, even a rudimentary process, was involved in the election to give a penalty notice … ".
The respondent submits that the statements of Greenwood J, particularly as to the direct meaning of "decision" should be applied to the present case, and more particularly, to the same effect. As put in writing, the submission is that in this case, "a decision was simply made not to extend or renew and to insist on possession being delivered up at the expiration of the term. That did not involve anything of the kind identified by Greenwood J at [71] and [82]."
In Guss, Gyles J, at 92 [9], referred to Greenwood J's reasons, and the suggestion that the decision might not be "deliberative" in the sense his Honour discussed. Gyles J referred to the passage from the judgment of Mason CJ in Bond, at 337, which is set out above. At 92 [10], Gyles J observed that Bond's case involved a proceeding which was effectively an inter partes determination. At 92 [11], his Honour said:
"However, many administrative decisions are authorised or required by a statute which involve no determination of an issue in that sense. The operative decision is solely whether to act or not to act and may be wholly unilateral. This was such a case. The decision to issue the notice was a final determination of that question. Whilst, in a loose sense, it was a step along the way to recovery of tax, it was, and is properly regarded as, a discrete and independent step complete in itself that is expressly provided for by the statute.
His Honour further said at 94 [17] that "[g]iving of the notice in the present case necessarily involved a deliberate decision to do so. It matters not that the decision to act may have been easily made and difficult to challenge."
Edmonds J seems to have accepted that the decision involved a substantive determination: see 100 [38] – [39].
I reject the respondent's submission on this point. Counsel for the respondent did not suggest that there is anything in Greenwood J's interpretation of the law which differed in any material way from that of the other judges in the case, or which is at odds with general principle. It was essentially the characterisation of the purported decision in that case which was the issue, and it is that which produced the different views. Looking at the decisions made by the Director in this case, I think that they were ones which had the required characteristics of a reviewable decision, subject to the requirement that they be decisions made under an enactment.
In this case, the lease was due to expire. Something needed to be done. The decisions were not to extend or renew the lease, and to serve a notice to vacate. They were a decision not to act, and one to act. They were unilateral decisions which, together, amounted to a final determination of what was required to be done by the Director in the circumstances. That final determination of what was required to be done in the circumstances involved a deliberative evaluation of relevant facts and circumstances which gave rise to the decisions not to extend or renew the lease for a fixed term, and to serve the notice to vacate. Adopting the words of Gyles J, although in a loose sense the decisions may not of themselves have given rise to the recovery of possession, together they can be properly regarded as a discrete and independent step complete in itself. I hold that they were "decisions" within the meaning of the JRA.
A decision under an enactment?
The appellant argues that the decisions qualify as decisions "under an enactment" because they satisfy the second limb of the test propounded by the majority judgment in Tang, particularly as the test is explained in the last three sentences of par[89]; (set out above at [25]). The appellant says that the decisions affected existing legal rights or concerned the creation of new rights, all such rights being ones which may not owe their existence to the relevant enactment itself, but to the general law or other statute.
The submissions are first, that the refusal to offer an extension or renewal of the lease was a decision not to create a new legal right in the appellant. That legal right was a right to accept the offer and, the appellant submits, "hence the decision meets the second limb of the … test that the decision must itself confer alter or otherwise affect legal rights and obligations." Second, as a right to a lease for no fixed period was created by s11(2) of the RTA in the event that a landlord did nothing after the expiry of a fixed term, the refusal to extend or renew had the effect of preventing the tenancy for no fixed period position under s11(2) from being established. The decision was a positive one not to allow that to occur. The notice to vacate had the obvious effect that the appellant was required to relinquish possession.
At one point, the submissions as to what rights of the appellant were affected by the decisions ventured into the area of a suggestion that immediately before the decisions were made, the appellant, had, by virtue of s11(2), a right of occupation beyond the expiry date of the lease. The combined operation of ss11 and 12 of the RTA may be the subject of some debate, but it is reasonably clear that the scheme operates so that upon the expiry of a fixed term lease, there is a holding over for 28 days, during which a number of things can occur. They are as follows. First, the extension or renewal of the lease for a fixed term. Second, the owner does nothing so that an agreement for no fixed period comes into force by virtue of the Act. Third, the owner may serve a notice to vacate under s42(1)(c).
It is not necessary to deal further with this issue. As I understand the eventual position adopted by counsel for the appellant, after exchanges with the Bench, it is that upon the expiry of a fixed term lease, there is an inchoate right to a statutory agreement for a no fixed period. The crystallisation of that right depends on what action is taken by the owner within the 28 day period. A decision not to allow an agreement for no fixed term to be created, and to serve a notice to vacate, has the effect of extinguishing that interest.
For present purposes, it can be assumed without resolving the question, that the decisions affected existing legal rights of the appellant, or related to the creation of new ones. The real difficulty with the appellant's submission is in relation to the full statement of the second criterion of the test of the majority in Tang. This statement is that the "decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment". [my emphasis]. The appellant, having identified what rights may be affected or created by the decisions, asserted that they were decisions made under an enactment. This was because they were made under s16 of the HA, which allows the Director to let dwelling houses. The appellant's principal focus was on what rights were affected or created by the decisions, and how that was so, and not on the source of force or effect of the decisions.
It will be recalled that the section gave the Director power to let any dwelling-house on terms and conditions as he saw fit. The appellant rightly says that the section embraces the power not to let on a particular occasion, and to terminate lease arrangements. The exercise of all of those powers is governed by the RTA, but it is the appellant's case that the relevant decisions were made under s16(1) of the HA. No real attempt was made to address the qualification raised by the words I have emphasised in the second criterion. That the decisions were not derived from the HA, in the sense of taking their force from the legislation, was the essence of the primary judge's reasons.
It is necessary to consider Tang in greater detail. Griffith University was established by statute which conferred on it a general power to do all things necessary or convenient in connection with the performance of its functions, as well as a power to delegate functions to committees. Ms Tang was excluded from a PhD candidature, on the basis that she was guilty of academic misconduct. That finding was made by a board established under the University's policy on academic misconduct, and confirmed on an internal appeal to the University appeals committee. The Higher Education (General Provisions) Act 1993 (Qld) conferred upon universities an effective monopoly to confer higher education awards, and Griffith University had the benefit of that monopoly.
It was held by a 4:1 majority (Kirby J dissenting) that the decisions were not properly regarded as having been made under an enactment. In a separate judgment, Gleeson CJ at 111 [20] said:
"So far as appears from the evidence, the relationship between the appellant and the respondent was voluntary. Neither party was bound to continue in the relationship, although the respondent would have had a legitimate expectation that certain procedures would be followed before the appellant terminated the relationship. The Griffith University Act provided the legal context in which the relationship existed. The Higher Education (General Provisions) Act also provided part of the wider context. On the other hand, the decision of the appellant, which was to terminate that relationship, was not a decision which took legal force or effect, in whole or in part, from the terms of either statute."
At 111 [21] – [22], his Honour rejected the proposition that there was a qualification to the test, or an alternative test, of whether the legal force or effect on the decision is of such a kind that it could result from the exercise by any member of the public of a power or capacity not derived from statute. At [22] his Honour said that: "As a free-standing test it suffers from the defect that the answer to the question posed may depend upon the level of abstraction at which the decision, or its legal effect, is described."
It is desirable to set out parts of the plurality's judgment which were either set out or referred to by the primary judge in this case. At 128 – 129, Gummow, Callinan and Heydon JJ said that there was a line of authority in the Federal Court, including the judgments of Kiefel and Lehane JJ in Australian National University v Lewins (1996) 68 FCR 87 at 96 – 97, 101 – 103, which assisted in fixing the proper construction of the phrase "decision of an administrative character made … under an enactment". Their Honours continued (omitting footnotes, save those relating to Federal Court authority):
"79The decision so required or authorised must be 'of an administrative character'. This element of the definition casts some light on the force to be given by the phrase 'under an enactment'. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
80The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins [(1996) 68 FCR 87 at 103], does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? [General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 169.]
81If the decision derives its capacity to bind from contract or some other private law source, then the decision is not 'made under' the enactment in question. Thus, in Lewins, a decision not to promote to Reader a member of the staff of the Australian National University was not 'made under' the Australian National University Act 1991 (Cth) ('the ANU Act'). Lehane J explained: [Lewins at 103]
'In this case, the relevant statutory power (in s 6(2)(k) of the ANU Act) is simply one "to employ staff". Obviously that, taken together with the general power to contract, empowers the University to enter into contracts of employment, to make consensual variations of employment contracts and to enter into new contracts with existing employees. But I cannot see how it is possible to construe a mere power to employ staff as enabling the University unilaterally to vary its contracts with its employees or to impose on them, without their consent, conditions which legally bind them – except, of course, to the extent that contracts of employment may themselves empower the University to make determinations which will be binding on the employees concerned.
82For these reasons, a statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. A legislative grant of capacity to contract to a statutory body will not, without more, be sufficient to empower that body unilaterally to affect the rights or liabilities of any other party. The power to affect the other party's rights and obligations will be derived not from the enactment but from such agreement as has been made between the parties. A decision to enter into a contract would have no legal effect without the consent of the other party; the agreement between the parties is the origin of the rights and liabilities as between the parties."
At 127 [76], the plurality referred to Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 CLR 234. At 241, in a joint judgment of five justices, the High Court said that for a decision to be made under an enactment, the particular Act must be the "source of [the] power to make the decision, or the source of the decision's legal effect". The plurality in Tang referred with approval to a number of Federal Court decisions, in addition to the judgment of Lehane J in Australian National University v Lewins. Statements of the proposition that the decision must derive its force from the enactment appear in the cases referred to.
Those cases, and the statements of principle, include the following. In General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164, Davies and Einfeld JJ at 169 said that a decision taken under an enactment is an action or a refusal to act "which, by virtue of the statute, affects legal rights and/or obligations". Their Honours went on to say at 172, that the ADJR Act was "concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment". In that case the respondent was given the legal capacity of a natural person, including the capacity to enter into contracts. The decision sought to be reviewed involved the entry of contracts. It was held that there was a mere conferral of capacity to act, and the validity of the contracts and of acts done were governed entirely by the law of contract, not by the relevant statutes.
In Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269, the relevant decision was one by the DCT to vote against a motion put to a meeting of creditors under PtX of the Bankruptcy Act 1966 (Cth). Black CJ at 273 said:
"A decision that is neither expressly authorised or required, nor impliedly required, by an enactment but which has as its sole source of authority general powers of administration conferred by an enactment is unlikely to be one that is given force or effect by an enactment or by a principle of law applicable to the enactment."
In Australian National University v Lewins (above), the ANU had promulgated a statement on policy and procedures in the exercise of general powers of administration conferred by its statute. The policy provided for the criteria to be applied in determining applications for promotion to Reader, and established procedures for dealing with applications. Kiefel J agreed with the reasons of Lehane J referred to in Tang. Davies J noted that it was not sufficient for Mr Lewins' success that the statement of policy for promotions and procedure raised a legitimate expectation that it would be complied with, or that there may be principles of law such as legitimate expectation or estoppel which would entitle him to enforce it. His Honour said that it must appear, amongst other things, that "the subject decision has force and effect by virtue of an empowering enactment".
I have set all of this out to show that it is abundantly clear that for a decision to be one under an enactment, it must be more than the exercise of a public power which affects legal rights in some way. The decision must be more than one expressly or impliedly authorised by the statute. The meaning of the second criterion of the plurality in Tang is plain. To use the description given in Aronson and Groves, Judicial Review of Administrative Action, 5th ed (2013), at 93 [2.550], "… the decision must make a present or contingent difference in the realm of legal rights or obligations, and it must do this because of the force it derives from the relevant enactment" [original italics, my bolding].
In my view, that is where the appellant fails. Whilst the authority for the Director to act in the way he did comes from the HA, the force or effect of the decisions does not. The decisions derived their force from the contractual relationship between the parties, as that relationship is governed by the RTA. The lease agreement provided for an expiry date. A decision not to extend or renew the lease beyond that expiry date has force because of the ordinary relationship between parties in that position. The service of the notice to vacate is to be treated in the same way. The decision derives its force from the relationship as governed by the RTA. As the primary judge said, the decision to serve the notice to vacate was a decision that any landlord could make, rather than a decision deriving from the HA. That the RTA governed the circumstances in which the Director had to deal with the expiry of the lease, and the issue of a notice to vacate, is irrelevant. The decisions operate because of the general law.
The overwhelming weight of authority, applied to the facts of this case, compels the view that the decisions are not reviewable under the JRA. It has been recognised that this established approach to the interpretation of a "decision under an enactment" may be unduly restrictive and impose limits on statutory judicial review, as distinct from that available under the common law: see the discussion in Lane and Young, Administrative Law in Australia, (2007), at 92 – 93 [2165], and the article referred to: Aronson, "Is the ADJR Act Hampering the Development of Australian Administrative Law?" (2005) 12 A J Admin L 79.
The primary judge, having determined that the application must fail on the basis that the decisions did not satisfy the second criterion of the plurality's test in Tang, went on to say:
"23 Some people might see this result as most unfair. According to the evidence relied on by counsel for the applicant, she is a single mother with three young children; she is dependent on a pension; she cannot afford to move into the private rental market; and eviction from her Housing Tasmania home would result in her and her three children becoming homeless. There is no suggestion that she has breached any term of her lease, nor that the premises have been damaged during her occupancy of them. Despite persistent enquiries, no explanation has been given for the decisions that she sought to challenge. … The reasons for the impugned decisions were not disclosed during these proceedings. …"
Counsel for the appellant stresses the special nature of the relationship between the Director and persons having the benefit of public housing. It is argued that the Director's housing role is one of public and social benefit, and is entirely different from that of the commercial motivations of private landlords; the HA does not impose any profit making obligation on the Director. Counsel referred to Nicholson v New South Wales Land and Housing Corporation, unreported Supreme Court of New South Wales, 24 December 1991, per Badgery-Parker J. In that case (BC102676 at 11 – 12), his Honour said:
"The position of a Housing Department tenant as compared with a private tenant is a matter of considerable value, because of the benefits of reduced or subsidised rent. To be deprived of it is to put the tenant back into the private housing market, a market which, by definition, he is incapable of competing in. To deprive him of his tenancy is therefore to deprive him of a very substantial benefit indeed. There is no question as to the right of the Department as the matter of contract to terminate the tenancy, but the decision to do so is an administrative decision which carries the capacity to deprive the tenant of substantial benefits, namely the availability of accommodation at a subsidised rent, and of security of tenure which, if not his right, was his reasonable expectation."
No doubt those observations are valid in relation to the role of the Director and his functions under s16(1) of the HA. However, to the extent that it might have been suggested that these considerations in some way impact on the question of whether the second criterion in Tang is satisfied, I would disagree. The fact of any special relationship cannot alter the analysis of the source of the force or effect of the Director's decisions. The ground of appeal must fail.
Denial of natural justice?
Because of the fate of the ground of appeal, in strict terms it is unnecessary to decide this issue. However, it is probably desirable to briefly say something about it, at least in deference to the arguments which have been put.
The appellant submits that the Director, as a statutory corporation in a special relationship with tenants, must comply with the rules of natural justice when exercising his powers in respect of leases. In particular, that includes operating in accordance with the published policies and procedures. The appellant relies on the well-established proposition that there is a duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention: Kioa v West (1985) 159 CLR 550 at 584; Annetts v McCann (1990) 170 CLR 596 at 598; Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 352 [74]. The appellant says that the requirement is wide enough to include the exercise of a discretionary power to confer a right: Plaintiff M61/2010E at 352 [75].
It may be accepted for the moment that the exercise of the Director's relevant statutory power is regulated by the principles of natural justice. To have arrived at that point, the appellant would have succeeded in her argument that the decisions were made under an enactment; that is, the decisions which affected her rights derived their force from the HA. The respondent argues however, not that the provisions of the HA clearly exclude the principles of procedural fairness, but that those of the RTA do. The respondent says that the Director is in no different a position than an ordinary landlord. The provisions of the RTA impliedly exclude procedural fairness in relation to decisions about leases. In particular, the provisions as to the termination of tenancies operate as a code. The combined operation of ss42(1) and 45 means that no tenant has any entitlement to be heard when a notice to vacate is served. Section 42 enables service of such a notice when a fixed term lease is due to expire or has expired; s45 enables an owner to apply to the Magistrates Court for delivery of vacant possession.
It may well be correct that by the terms of the RTA and the subject matter, Parliament can be taken to have excluded the need for procedural fairness in relation to the creation, expiry and termination of leases. However, the question of the appellant's right to procedural fairness, and the content of that right, can more readily be determined on a basis not expressly argued. It seems to me that those things would be directly governed by the Director's policies and procedures publications.
It is well established that representations that persons be given an opportunity to be heard before decisions are made, may give rise to a duty to do so. It is the making of the representation which creates the duty: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; Geelong Community for Good Life Inc v Environment Protection Authority (2008) 20 VR 338. (The duty to accord procedural fairness on this basis, and in the same context as this case, was acknowledged by Badgery-Parker J in Nicholson v New South Wales Land and Housing Corporation (above) at 9 – 10.) Departures from the representations may amount to a breach of the duty. To be entitled to relief an applicant must show that the departure was unfair in the sense of affecting the fairness of the process: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.
Ignoring the difficulty which may be created by implying from one Act the exclusion of the duty to accord procedural fairness in respect of decisions made under another, if the right to procedural fairness arises from the representations made in the Director's publications, it is very difficult, at the least, to see how the respondent's argument for the exclusion of the duty arises at all. This is so, even if the argument is applied to the HA, and not the RTA. The Director's published procedures are simply ones adopted by him for the purposes of discharging his statutory responsibilities. On the face of things, as a person to whom the representations were directed, the appellant was entitled to the benefit of those procedures. If the requirements for a "decision" within the meaning of the JRA had been met, and subject to unfairness being shown, the appellant may have been entitled to relief on that basis. It is neither possible nor desirable to say anything further.
Outcome
For the reasons which I have given, I would dismiss the appeal.
File No 1144/2012
ANGELA KING v DIRECTOR OF HOUSING
REASONS FOR JUDGMENT FULL COURT
WOOD J
2 October 2013
I agree with the reasons of Porter J and would also dismiss the appeal.
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