King v Director of Housing
[2012] TASSC 82
•4 December 2012
[2012] TASSC 82
COURT: SUPREME COURT OF TASMANIA
CITATION: King v Director of Housing [2012] TASSC 82
PARTIES: KING, Angela
v
DIRECTOR OF HOUSING
FILE NO: 597/2012
DELIVERED ON: 4 December 2012
DELIVERED AT: Hobart
HEARING DATE: 2 October 2012
JUDGMENT OF: Blow J
CATCHWORDS:
Administrative Law – Judicial review – Reviewable decisions and conduct – Decisions to which judicial review legislation applies – Decisions under an enactment – Particular cases – Director of Housing – Decision not to renew lease – Decisions to serve notice to vacate.
Judicial Review Act 2000 (Tas), s4(1).
Homes Act 1935 (Tas), ss6A, 16(1).
Griffith University v Tang (2005) 221 CLR 99; Australian National University v Lewins (1996) 68 FCR 87, followed.
Aust Dig Administrative Law [1013]
REPRESENTATION:
Counsel:
Applicant: C Gunson, R Meredith
Respondent: P Turner
Solicitors:
Applicant: Benedict Bartl
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASSC 82
Number of paragraphs: 24
Serial No 82/2012
File No 597/2012
ANGELA KING v DIRECTOR OF HOUSING
REASONS FOR JUDGMENT BLOW J
4 December 2012
The applicant, Angela King, is living in a Housing Tasmania home. In or about April 2012, one or more officers of Housing Tasmania decided that her lease would not be renewed, and that she would be served with a "notice to vacate". Those decisions were made by either the respondent, the Director of Housing, or one or more of his delegates. The applicant was given no warning of those decisions, and thus had no opportunity to make representations as to why they should not be made. She has applied to this Court for the review of those decisions under the Judicial Review Act 2000 ("the JR Act"). However the Director contends that (a) this Court does not have any jurisdiction to review either of those decisions under the JR Act, and (b) he and his delegates had no duty to afford procedural fairness to the applicant.
Jurisdiction under the Judicial Review Act
Counsel for the Director submitted that the Court did not have jurisdiction because neither of the impugned decisions was "a decision of an administrative character made … under an enactment" for the purposes of the JR Act.
Section 17(1) of the JR Act reads as follows:
"(1) A person who is aggrieved by a decision to which this 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 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)."
Counsel for the applicant submitted that the impugned decisions were administrative decisions that had been made under the Homes Act 1935. The status and powers of the Director are dealt with by s6A of that Act. That section contains the following relevant subsections:
"(1) The Governor may appoint a State Service officer or State Service employee to be Director of Housing and that officer or employee is to hold that office in conjunction with State Service employment.
(2) …
(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.
(3A) In addition to any other powers conferred under this Act, the Director may —
(a)subject to the approval of the Minister, make grants and allocate funds for housing purposes to local authorities, eligible persons, and community groups;
(b)subject to the approval of the Minister, undertake and participate in joint ventures with private developers and public authorities within the meaning of section 15A(3);
(c)undertake, or cause to be undertaken, housing research and policy development; and
(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 purposes of that Act are referred to in its long title and in s6. The long title 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 16 of that Act provides as follows:
"(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."
Section 6 reads as follows:
"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."
The Director has powers of delegation under s6AB. That section contains the following relevant subsections:
"(1) The Director may, by instrument in writing, delegate to a person who is specified in the instrument the performance or exercise of such of his functions and powers under this Act or any other Act (other than this power of delegation and the power to borrow money) as are specified in the instrument, and may, by instrument in writing, revoke wholly or in part any such delegation.
(2) A function or power, the performance or exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.
(3) …
(4) Notwithstanding any delegation under this section, the Director may continue to perform or exercise all or any of the functions or powers delegated.
(5) Any act or thing done by or to a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by or to the Director and shall be deemed to have been done by or to the Director."
The Homes Act does not contain any provision expressly or specifically authorising the Director to decide not to extend or renew a lease to one of his tenants, or to issue a notice to vacate.
A notice to vacate is a form of notice that any landlord of residential premises may serve on a tenant, when appropriate, pursuant to the Residential Tenancy Act 1997 ("the RT Act"), s42(1). It is a notice requiring the tenant to deliver vacant possession of the premises to the owner. Not surprisingly, s42(1) provides for such notices to be served when the tenant has failed to comply with a provision of a residential tenancy agreement, or when a tenant has caused a nuisance at the premises that is substantial: s42(1)(a) and (g). In this case, the notice to vacate was served under s42(1)(d), which allows a notice to vacate to be served when "a residential tenancy agreement is due to expire not more than 28 days after service of the notice". The Director did not assert that the applicant had failed to comply with any provision of her lease, nor that she was responsible for a nuisance.
In some respects, the RT Act supersedes the common law in relation to the rights of landlords and tenants when residential leases expire. The applicant originally leased the premises in question for a period of three months ending on 6 February 2010. She subsequently entered into four agreements to extend the lease term. The last of those expired on 6 May 2012. She was served with the notice to vacate on 20 April 2012. The applicant has not yet vacated the premises.
That being the situation, the provisions of the RT Act operate as follows:
· 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).
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.
Counsel for the Director made submissions to the effect that neither a decision not to extend the term of a lease nor a decision to issue a notice to vacate could amount to a decision under the Homes Act. He argued that a decision to issue a notice to vacate could only be characterised as a decision under the RT Act, not the Homes Act.
The High Court considered the nature of a "decision of an administrative character made … under an enactment" within the meaning of the Judicial Review Act 1991 (Qld) in Griffith University v Tang (2005) 221 CLR 99. The principal judgment in that case was delivered by Gummow, Callinan and Heydon JJ. At par[89], their Honours said:
"89 The 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."
The respondent in that case had been enrolled as a PhD student. Following an allegation of academic misconduct, an assessment board that had been established in accordance with the university's policies made a finding against her and advised her that she was excluded from candidature. The board's decision was confirmed on an internal appeal to an appeals committee. The university and its council were established by a statute. The council was empowered by that statute to manage and control the university's affairs and property. The relevant disciplinary and appeal processes were established by policies adopted by the council, not under subordinate legislation.
At par[96], their Honours accepted that the decisions in question were authorised by the relevant statute. That is to say, they accepted that the first criterion was satisfied. However they reached a conclusion to the effect that their second criterion was not satisfied. That conclusion resulted from the approach that their Honours took to the distinction between decisions under contracts or other private law sources, and decisions made under enactments. At pars[79] – [81], their Honours said the following (omitting case references):
"79 The 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?
80 The 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? … 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?
81 If 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."
Their Honours went on to refer with approval to the judgment of Lehane J in Australian National University v Lewins (1996) 68 FCR 87. That case concerned a decision not to promote a member of the academic staff of a university. The decision was held not to be a decision made under the statute that governed the university. At par[82] their Honours continued:
"82 For 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."
In this case the decisions in question satisfy the first criterion referred to in Griffith University v Tang at par[80]. 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.
However 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 has the same characteristics as the decision not to give the academic a promotion that was the subject of Australian National University v Lewins (above). It 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.
There is no material difference between the relevant provisions in the JR Act and the legislative provisions that were considered by the High Court in Griffith University v Tang. The impugned decisions do not satisfy the second criterion referred to in par[89] of the High Court's decision in that case. It follows that neither of them is a decision to which the JR Act applies. This application must therefore fail.
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. Housing Tasmania has procedures whereby, whenever a decision is made to terminate a tenant's lease because of non-compliance with a requirement of the lease, that decision can be reviewed in accordance with internal appeal processes. No such rights of review are available to the applicant because her lease has expired, not been terminated. The reasons for the impugned decisions were not disclosed during these proceedings. As counsel for the Director rightly submitted, the Court has no jurisdiction to review those decisions under the JR Act.
The originating application is dismissed.
2
2