Parsons v Director of Housing - [2018] TASSC 62

[2018] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: Parsons v Director of Housing [2018] TASSC 62

PARTIES:  PARSONS, Gregory
  v
  DIRECTOR OF HOUSING

FILE NO: LCA 3016/2017

DELIVERED ON:  7 December 2018
DELIVERED AT:  Hobart
HEARING DATE:  12 December 2017
JUDGMENT OF:  Geason J

CATCHWORDS:

Leases and Tenancy Agreements – Termination of the tenancy – Notice to quit– Residential tenancies legislation – Recovery of possession – Residential Tenancy Act 1997 – Section 45(3) – Genuine or just – Statutes – Construction – Words and phrases.
Aust Dig Leases and Tenancy Agreements [173] [178] [217-218][1092] [1209-1215]

REPRESENTATION:

Counsel:
             Appellant:  R Merkel QC, M Norton
             Respondent:  P Turner
Solicitors:
             Appellant:  Tenants Union
             Respondent:  Office of the Solicitor General

Judgment Number: [2018] TASSC 62
Number of paragraphs: 64

Serial No 62/2018

File No LCA 3016/2017

GREGORY PARSONS v DIRECTOR OF HOUSING

REASONS FOR JUDGMENT GEASON J

7 December 2018

Mr Parsons is intellectually impaired, and lives in a unit at Glenorchy, pursuant to an agreement with the respondent which began on 27 June 2007. When it commenced, the agreement was for a term of three months, expiring on 27 September 2007. By a series of agreements, the tenancy period has been extended 14 times, over many years. The most recent extension to the agreement occurred on 2 November 2016, extending the lease period to 27 June 2017.
He is an "eligible person" under the Homes Act 1935. An "eligible person" is a person, in respect of whom the Director is satisfied "is, or will be, in need of housing assistance" under the Homes Act because of "particular circumstances or characteristics" of the person.
On 4 May 2017 a "Notice to Vacate" (notice) was served on Mr Parsons requiring him to vacate his unit by 28 June 2017. The reason for the notice was stated to be that the lease was coming to an end.
He did not leave, so the Director made an application to the Magistrates Court for an order requiring him to do so.
When the matter came before the court, Magistrate Webster determined that he had no discretion to refuse an order requiring the appellant to vacate. That was because the lease was terminable on notice to the tenant, and he was satisfied that the procedures under the Residential Tenancy Act 1997 (RTA) had been followed.
An order was made requiring Mr Parsons to deliver vacant possession of the premises by 5pm on 6 December 2017.
That order is the subject of this appeal. It has been stayed pending its determination.
The order is challenged on these grounds:
"1The learned Magistrate lacked jurisdiction, exceeded his jurisdiction, alternatively constructively failed to exercise his jurisdiction by ordering that vacant possession of the premises at Unit 18, 26 Windsor Street, Glenorchy in Tasmania be delivered by the appellant to the respondent by 5.00pm on 6 December 2017:
a without considering whether the respondent's reason for serving the Notice to Vacate on the appellant was genuine or just as required by s 45(3)(b) of the Residential Tenancy Act 1997 (Tas) (the Act);
b on the sole ground that the respondent's notice to vacate given to the appellant pursuant to s 42(1)(d) for the reason that the respondent's residential tenancy agreement was due to expire not more than 60 days after service of the notice, was properly given as required by s 45(3)(a) of the Act;
c on the ground that by reason of the matters set out in sub-para b above:
ithe learned Magistrate had no discretion under s 45(3) of the Act to decline to make the order that vacant possession be delivered;
iithe reason for serving the Notice to Vacate was therefore genuine and/or just for the purposes of s 45(3)(b);
iiithe matters set out in the affidavit of the appellant sworn on 5 October 2017, in the exhibits to that affidavit and/or the submissions of the solicitor for the appellant in respect of those matters (particularly concerning the status of the respondent as a social housing provider, the appellant's intellectual disability and the risk of homelessness that he would confront if the order for vacant possession was made) were not capable of being relevant, or of being considered to be relevant, to the exercise by the learned Magistrate of his jurisdiction of power to make an order for delivery of vacant possession under s 45(3) of the Act or to whether the reason for the respondent serving the notice to vacate was genuine or just.
2 By reason of the matters set out in para 1 the learned Magistrate:
aerred in law in his construction of s 45(3) of the Act and
bthe appellant was denied natural justice in the course of the proceedings.
3Insofar as any of the grounds of appeal set out above require leave pursuant to s 28(2)(b) of the Magistrates Court (Civil Division) Act 1992 (Tas) that leave will be sought from a Judge of the Supreme Court."
Section 28 of the Magistrates Court (Civil Division) Act 1992, provides for appeals to the Supreme Court in minor civil claims. The grounds of appeal engage s 28(2)(a)(i) and (ii). Leave is not required, though I would have granted leave under s 28(2)(b) had I considered it necessary.
The Director concedes that if the magistrate misconstrued s 45(3)(b) of the RTA, then he has made an error (or errors) of law of a jurisdictional nature. Such an error would engage this Court's powers under s 28(3) of the Magistrates Court (Civil Division) Act. Those powers are:
"(3)On an appeal under subsection (2), the judge may make any orders he or she considers appropriate in the circumstances."
The application for an order evicting Mr Parsons was made under s 45(1) of the RTA.
Part 4 of the RTA governs the termination of tenancies. By s 37 a residential tenancy agreement may only be terminated by the means set out in the several paragraphs appearing in s 37(1) of that Act. Section 37(1)(d) provides that a residential tenancy agreement can be terminated by:
"… the delivery of vacant possession of the premises by order of the Court to the owner …".
A "Notice to Vacate" is the formal name for the instrument by which the intention of the landlord to require vacant possession is communicated to a tenant. Section 42 of the RTA provides a list of bases upon which a notice may be served on a tenant. It refers to "social housing". Social housing is residential housing owned in whole or part by the respondent. It differentiates between residential tenancies which are for social housing, and those which are not, and as to the basis upon which a notice may be served in respect of social housing. That distinction is not material to my conclusion in this appeal.
Section 44 identifies the content required to be included in a notice.
Section 43 of the RTA concerns the effect of a notice. Section 43(1)(c) states:
"… a notice to vacate takes effect on a date specified in the notice that is a date
(a)…
(b)…
(ba)…
(c)At least 42 days after the notice is served, if the notice is for the reason referred to in section 42(1)(d), but not before the date of the expiry of the residential tenancy agreement …".
Section 41 of the RTA (which is of no application here), and s 45(1), identify how such result may be obtained.
Section 45(1) of the RTA states:
"An owner may apply to the Court for delivery of vacant possession of residential premises by the tenant if a notice to vacate in respect of the premises has taken effect and vacant possession has not been delivered to the owner".
By s 45(3) it is provided that:
"(3) The Court may order that vacant possession be delivered to the owner if satisfied that —
(a)   a notice to vacate the premises was properly given; and
(b)   the reason for serving the notice to vacate was genuine or just; and
(c)   vacant possession was not delivered to the owner; and
(ca) where the premises are social housing and the reason for serving the notice is a reason referred to in section 42(1)(da), (db) or (dc), vacating the premises would not result in unreasonable financial disadvantage, or unreasonable social disadvantage, to the tenant; and
(d)   the tenant was served with a copy of the application."
Section 45 of the RTA is the mechanism through which a court becomes engaged in the procedure for obtaining vacant possession when possession is not delivered in accordance with the notice.
The appellant contends s 45(3) requires an evaluative process because the section requires the Court to be satisfied of the matters in s 45(3), whereupon it may act to order vacant possession.
A particular emphasis in this appeal is the construction of s 45(3)(b) of the RTA: "the reason for serving the notice to vacate was genuine or just". The "reason for serving the notice", references the requirement under s 44 for the notice to state the reason, and s 42 which sets out the reasons which can be relied upon for procuring vacant possession.
The thrust of the appellant's case is that no evaluation was undertaken by the learned magistrate, and that he was denied procedural fairness because the evidence relevant to the performance of that evaluative exercise was not taken into account.

The Homes Act

The Director is involved in leasing property because of the obligations reposed in him under the Homes Act. The historical context for the Homes Act 1935 was described in the Tasmanian Year Book 2000 – A History of Housing Assistance in Tasmania, by Maryanne Lewis:
"At the beginning of this century economic depression had highlighted and exacerbated the poor conditions in which the urban population lived. Administrative structures to support growth were under-developed. The absence of public or other forms of housing assistance was accompanied by a general disinterest by government in the plight of 'the poor'. Most had little choice but to rent expensive and poorly built housing from unregulated landlords.
The Homes Act 1919 (Tas) provided for loans of up to £700 to allow low and moderate income families to build a home. The Act was administered by the Agricultural Bank of Tasmania. This Act was the first significant involvement by the Tasmanian Government in the provision of housing assistance. Despite this, many people remained living in homes considered to be 'unfit for human habitation' ...
During the 1930s it became apparent that low-cost loans could not adequately meet the demand for housing assistance. In 1935 a second Homes Act was passed. The new Act provided for the establishment of the Housing Division to build homes available for rental to low income earners. The bank completed the first 22 homes in late 1936. The homes in Liverpool Street, Hobart, were available to low income earners on a rent or purchase basis. There were 666 homes built between 1934 and 1942 on this rent or buy arrangement. The Group Homes scheme commenced in 1940. This scheme gave access to a home to those who could not afford a deposit. This policy of building and developing subdivisions was to last more than 40 years".
The policy is the broader context within which the appellant's relationship with the respondent is explained. That relationship is a legal one which is subject to the RTA.

Interpreting the RTA

The objective of statutory interpretation is to give effect to the parliament's purpose as expressed in the language of the legislation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69]. It is not the Court's role to deduce an unstated legislative intention: Taylor v Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531 [65]. The task begins and ends with an examination of the text of the legislation: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, 250 CLR 503 [39].
The correct approach is to consider meaning in the legislative context in which it appears: Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389, 396-7; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. Context includes the legislative history and general purpose and policy of a provision, in particular the mischief it is seeking to remedy. Context also includes extrinsic materials, but understanding context is only of utility if, and to the extent, it assists in fixing the meaning of the text. The legislative history and extrinsic materials cannot displace the meaning of the statutory text; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (above) at [39].
In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56, 248 CLR 378 at [88], Crennan and Bell JJ drew together some of these principles in relation to statutory construction:
"[88] The fundamental object of statutory construction is to ascertain legislative intention, understood as the intention that the courts will impute to the legislature by a process of construction, by reference to the language of the statute viewed as a whole. The starting point for this process of construction is the words of the provision in question read in the context of the statute. Context is also spoken of in a broader sense as including the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy." [footnote omitted]
An incident of the function of leasing property, is bringing leases to an end. Section 42 is relevant to that, drawing parties into a procedure set out in s 45 when that notice is not obeyed. Section 45 is cast in terms which require the court to consider and determine whether it is satisfied as to each of the matters appearing in s 45(3)(a)-(d): "The court may order vacant possession if it is satisfied …" (my emphasis).
In Wilkie v The Commonwealth [2017] HCA 40, the Court said at [98] that in respect of a provision which required that "the Finance Minister be satisfied that there is an urgent need for expenditure …", the casting of that pre-condition by reference to the Finance Minister's "satisfaction" invokes an "established drafting technique" which has been "used to make the holding of a particular state of mind by the repository a pre-condition to the performance of a duty or to the exercise of a power": Plaintiff M96A/2016 v Commonwealth [2017] HCA 16, 91 ALJR 579 at 588 [39]; Re Minister for Immigration and Multi-cultural Affairs; ex-parte applicant S20/2002 [2003] HCA 30 and Bankstown Municipal Council v Fripp (1919) 26 CLR 385.
Section 45(3) utilises the formula requiring the court's "satisfaction". It is the same "established drafting technique" referred to in Wilkie (above). It requires the court to hold a particular state of mind as a prerequisite to the exercise of the power conferred by the section.
The evaluation inherent in an enquiry of this nature has been recognised as involving an exercise of judicial discretion: Norbis v Norbis (1986) 161 CLR 513 at [518] to [519].
The learned magistrate was required to evaluate the Director's reason for the notice in accordance with s 45(3) of the RTA. The matters relevant to that evaluation are those set out in pars (a)-(d), though in this case par (ca) was not engaged. The evaluative task required a consideration of the evidence to determine whether the Court was satisfied as to those matters, whereupon, if so satisfied, the court was empowered to act. The need for that evaluation was overlooked; the discretionary nature of the exercise, was not appreciated.
The court regarded itself as without discretion as this passage shows:
"HIS HONOUR: Well – sorry, where's the discretion?
MR BARTL: You have the – you have the discretion to find that the reason for serving the notice to vacate was not genuine or just -…..
HIS HONOUR: Well you've said that, that's a big call, and if I had the discretion that would get you in, but where's the discretion?"
And then again in his reasons the learned magistrate said this:
"… provided the formalities and the procedure has correctly been followed I do not have any discretion not to order vacant possession when the landlord had a prima facie right to terminate the lease, and the same applies to the Department of Housing".
In particular his Honour's reasons do not expose any consideration of s 45(3)(b) of the RTA. He has not considered whether the reason for service of the notice was genuine, or just in accordance with that section. Apart from the fleeting reference in the passage which follows, there is no analysis of what s 45(3)(b) means, or what it requires.:
"MR BARTL: Well, section 45(3)(b) says that an owner may apply to the court for delivery of vacate possession if a notice to vacate in respect of the premises has taken effect, we take no issue with that, and vacant possession has not been delivered to the owner-…..
HIS HONOUR: Yes.
MR BARTL: And then section – subsection (3) goes on to say, the court may order that vacate possession be delivered if satisfied that (b) the reason for serving the notice to vacate was genuine or just. Given my client's -…..
HIS HONOUR: Yes, genuine or just in this case is that that tenancy is vacated."
The court has focussed its attention upon compliance with formalities. Parts of s 45(3) are concerned with such matters: Section 45(3)(a) for example requires the court to consider whether the notice was properly given. This requires the court to be satisfied that the landlord was entitled to give the notice in accordance with a reason appearing in s 42 of the RTA. Similarly, s 45(3)(d) is concerned with a procedural matter.
Once the court had dealt with procedural compliance (in particular s 45(3)(d)), and satisfied itself as to the right of the respondent to terminate the lease under its terms, it proceeded to make the order, considering itself required to do so. Because the evaluative task was overlooked, the appellant's evidence going to his circumstances, the circumstances of the tenancy, the history of it, and his occupation of the premises, was not examined for its relevance; it was not considered.
The situation falls squarely within the concept of a constructive failure as described by Kirby J in Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194, where his Honour said this at [82]:
"[82] Distinguishing cases where the officer or authority has simply made a factual or legal error in the course of reaching a decision from cases where that error is classified as a constructive failure to exercise jurisdiction is not at all easy. What is ordinarily involved in the latter is a misapprehension on the part of the decision-maker of the nature of the powers and functions which the decision-maker is called upon to exercise or of the essential conditions by reference to which that exercise must occur. The misapprehension must be such that, in truth, it can be said that a purported exercise is not a performance of the powers and functions entrusted to the decision-maker at all. It is a pretended or assumed discharge. But in the eye of the law, the powers and functions have never been lawfully performed." [Footnote omitted.]
This resulted in the court failing to give the appellant a hearing of his substantive case of the sort to which he was entitled: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, 197 ALR 389 at [32]. The consequence of the misapprehension of the nature of the exercise, construed as having no discretionary character, was a failure to entertain submissions directed to the elements of s 45(3) (b). The court did not consider submissions which were inconsistent with its view of the power it was exercising. There was a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1 at [55]; Dranichnikov (above) at [24] and [95].
That failure is a denial of natural justice; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597; Dranichnikov (above).

For these reasons the appeal should succeed. This is not a case where the discretion was exercised incorrectly; it was not exercised at all. In those circumstances, his Honour has failed to exercise the jurisdiction conferred on him by s 45 of the RTA. I uphold ground 1 insofar as it asserts a constructive failure to exercise jurisdiction. For the same reasons I uphold ground 2.
In terms of the appropriate dispositive orders, the respondent referred the Court to r 693(6) of the Supreme Court Rules 2000:
"An appeal is not to succeed merely on the ground of misdirection or the improper reception or rejection of evidence unless some substantial wrong or miscarriage has been occasioned by the misdirection, reception or rejection."
I consider that "some substantial wrong or miscarriage" has been occasioned by misdirection, because it has resulted in an order to vacate, without the court having undertaken the exercise required by the Act. It is a "substantial wrong or miscarriage" because it resulted in an order requiring the appellant to leave his home without the opportunity to have his case considered in accordance with the terms of the Act. A right to a hearing is a cornerstone of the process under s 45, and the RTA is prescriptive about the matters required to be considered and the process that involves. The consequences of the court's approach were serious. I do not accept the submission that the course taken has not resulted in a "substantial wrong or miscarriage".
The respondent urged me to remit the matter. The appellant urges me to vacate the order, quash it and dismiss the application. In circumstances where a court has failed to undertake the exercise reposed in it, on the basis that it has misunderstood the obligation, the proper course is to remit the matter so that the magistrate can deal with the matter according to law. This is not a merits appeal. Such course affords appropriate respect to the court below and is consistent with the statutory regime the subject of the appeal. I do not think that any unfairness accrues to the appellant in those circumstances, assuming that to be a relevant consideration in the determination of the appropriate dispositive order.
That is the order I will make. Before doing so I will say something more about s 45 of the RTA.
In addition to the implication of a discretion which flows from the requirement for the court to be "satisfied", the appellant submits that the use of the word "may" in s 45 is indicative of a discretionary power. In Logan v Director of Housing [2004] TASSC 153, 13 Tas R 324, Blow J (as he then was) held that "may" in this context means "must". I am inclined to the view that "may" is enabling in this context, operating to empower the Court to act upon it being satisfied of the requisite matters. In the circumstances it is not necessary to decide, because the required evaluation did not occur and that is sufficient for my conclusion.
The words "genuine or just" inform as to the character of one element of the evaluative task. Those terms suggest considerations going to more than mere validity with formal requirements for serving a notice; cf 45(3)(d) (concerned with whether the tenant was served with a copy of the application).
As to the "reason" for serving the notice, the evidence may suggest that there is more than one reason for it, despite the notice itself suggesting otherwise. Section 44 refers to a "reason", as opposed to reasons, but there is nothing to say that multiple reasons cannot (and do not) together constitute the reason for the notice. Given the requirement for an evaluative exercise in order that a court can be satisfied of the various matters identified in s 45(3), if the notice is served for more than one reason completeness, let alone fairness dictates they should be disclosed. Those reasons will assist the court to undertake the evaluative exercise, no matter how narrow that might be, and enable the respondent to the notice to address the reason for it.
The disjunctive structure of s 45(3)(b) of the RTA is apt to cause difficulty, even confusion, in its application; "or" appearing between "genuine" and "just" suggests that either a genuine reason or a just reason will satisfy the provision. I heard the parties at length with respect to the correct approach to the interpretation of the provision, and statutes generally. I invited the State to explain the operation of the section if construed disjunctively, but it was not able to be explained satisfactorily. That is hardly surprising, and I make no criticism. If "or" is to be construed disjunctively, then one or other of the prescriptions "genuine" or "just" will be functionless. One need never consider whether a reason is just if it is genuine, or whether it is genuine if it is just. Thus in Logan (above) the Court found at [6] the reason to be genuine without any consideration of whether it was "just"; indeed without acknowledgement of its presence in the Act, or any explanation as to the choice of that standard. There is nothing in the language directing a court to consider both elements. The words "or just" may as well not be there, though established principles of interpretation require a court to strive to give meaning to every word of a provision: Project Blue Sky (above) at [71]. Expressed disjunctively, and as applied in Logan (above), there is a choice as to which standard will be applied, as I have noted. That is an undesirable result. The concepts are not mutually exclusive but nor are they synonymous. It is not inconceivable that a reason might be genuine but not just.
I do not think that it can have been intended that, in the prescription of matters about which satisfaction is required before a power is exercised, a decision-maker has a choice between the standard to be applied, particularly when that choice may produce contrary results.
There is no question that a court is permitted to substitute "or" for "and" in appropriate circumstances, such as drafting error: BP Australia Pty Ltd v South Australia (1982) 31 SASR 178. In that case, Wells J, with whom the other members of the Court, King CJ and Jacobs J agreed, said at 190:
"… a careful reading of the many authorities cited reveals that the substitution is only made where the context of the provision under construction clearly admits of the substitution, and that the Court is only prompted to make it when conditions justifying the application of the golden rule exist."
And at 191:
"… I am of the clear opinion that principle and authority not only authorize, but compel, the reader to bring the construction of the definition into line with what common sense would immediately suggest …"
The alternative to the approach based upon drafting error is to interpret "or" as "and" with the same result. In Federal Steam Navigation Co Ltd v Department of Trade & Industry [1974] 2 All ER 97, the House of Lords, comprised of Lord Reid and Lord Wilberforce, decided that the normal meaning of the word "or" is disjunctive, although in a suitable context it can be read as equivalent to "and", or as expressing a non-exclusionary alternative equivalent to "and/or". That approach turns on an assessment of the context and requires a conclusion that a conjunctive interpretation is needed in that context. I do not think this is a case where context, per se, requires it, but rather that the avoidance of an absurd result necessitates it. That places the matter in the category of circumstance discussed in BP Australia Pty Ltd (above).
In all cases the presumption is that Parliament intends to act reasonably: IRC v Hinchy [1961] AC 748 at 767 per Lord Reid. The Courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless: Regina v Central Valuation Officer (Respondent) ex parte Edison First Power Limited (Appellants) [2003] UKHL 20, per Lord Millett at [117]. His Lordship added that "the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it: see (in a contractual context) Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 at 251 per Lord Reid". And in Prim v Smith (1888) 2 QB 643 at 645 (and referred to in Federal Steam Navigation (above) at 104), Lopes LJ said, "We are asked to read 'or' as 'and'. No doubt there are cases where that should be done, but they are cases where the natural meaning would give rise to an interpretation unreasonable, inconsistent or unjust."
In the circumstances it does not appear to me that the word "or" was used deliberately so as to preclude my conclusion: Gill v Department of Industry, Technology & Resources [1987] VR 681 at 685-686. Nor is it a case of mere inconvenience of result; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320.
For these reasons I have concluded there is a drafting error; that the intention was that the reason should be genuine and just. There is no other way to avoid an arbitrary choice between different "standards", unfair in itself, and capable of producing an objectionable and undesirable result. I acknowledge that mere unpalatability of outcome is not enough (though of course an absurd result is unpalatable), but this is more than that.
To that conclusion I add this observation: "Just" as a standard may have important work to do in the context of a provision which it has been said operates as a code: Logan (above) at [10]. In the example referred to in Logan of payment of arrears of rent after the notice, but before the matter comes before a court, the reason for the notice is genuine, but an order requiring the tenant to vacate, would arguably, not be "just". (Section 43(2) of the RTA is only applicable before the notice takes effect.) A conjunctive approach enables a consideration of that circumstance; a disjunctive (literal) interpretation allows it to be avoided altogether. In the context of an evaluative exercise which requires the repository of the power to arrive at a state of mind as a threshold requirement for the exercise of the power, that possibility is unacceptable.
Turning to the meaning of each of those terms, "genuine" in this context means "real" or "authentic". "Just" means "appropriate in the circumstances" or "fair". The Court is required to be satisfied that the reason for the notice is the authentic or the real reason for it; and that the reason is fair. That is a judgment to be made by the Court on the evidence, in the same way as other discretionary powers are exercised.
In my view, the content of those standards is adaptable: what is genuine and just in one case may not be in another, and the Court must apply the terms to the situation before it. In a social housing context, the substance of those concepts might be different from a case where parties have negotiated a lease on an equal footing. For example, the respondent's published guides about tenancy and behaviour might be relevant; past conduct or engagement between tenant and landlord, too. It is not necessary to be prescriptive about the content of this consideration. The reason for the notice will be the owner's reason and that is the starting point of the evaluation. What is "just" takes its colour from all the circumstances, including rights of ownership and matters agreed at the commencement of the lease. It is not a consideration focussed solely on the circumstances of the tenant. But it is an incident of the conduct of a hearing – unequivocally the context for the required evaluative exercise that both parties are heard, and it cannot be that the tenant's evidence is to be ignored. Otherwise the notice might just as well be "rubber stamped" in the registry.
I do not think this limits the rights of the property owner, save to the extent that once a letting has occurred, a choice made by the property owner, bringing it to an end by notice is to be for a reason in s 42, and if s 45(3) is engaged, that reason must be adjudged, inter alia, to be genuine and just. The provision confers some protection against capricious and arbitrary action by imposing a requirement going beyond checking for compliance with the formal steps for procuring vacant possession, and which directs the Court to make a judgment about the matter which takes account of all the circumstances. That is a task which is familiar to courts.
In this case the respondent's practice of repeatedly renewing the appellant's lease is material: the long history of repeated renewals enlivens enquiry as to the reason for service of the notice, and is one matter which should inform the Court's evaluation about whether the reason for the notice is genuine and just. In the circumstances of this case, the court was entitled to ask the respondent about that as part of the evaluative exercise, because it was a matter which was relevant to "genuine and just"; indeed it was relevant to "just" as a separate consideration to which the court was entitled to have regard, even on a disjunctive interpretation of the provision. I observe that this was an intellectually impaired man who had enjoyed 14 renewals of his lease, only to be confronted with a notice the stated reason for which was that the lease was due to expire. (Perceptively, the learned magistrate commented upon the completeness of the stated reason, pressing for the respondent to disclose any other reason for its notice given the long history of renewals, but to no avail).
I am not assisted by the decision in Logan (above). It has limited relevance as an application for forfeiture, invoking different considerations. I accept the appellant's submissions as to that. In that case the court said at [11] that "The Act appears to have been intended to simplify the law in relation to residential tenancies. I therefore think it would be contrary to the object of the Act to hold that there are situations, not provided for in the Act, in which magistrates may continue the existence of tenancies which landlords have a prima facie right to have terminated". The evaluative task required by s 45(3)(b) does not challenge the prima facie right referred to; it starts at that point, but looks beyond it, to consider whether the reason for the notice is genuine and just in the way I have already described. The discretionary power in the Court is tied to the outcome of that evaluative assessment. When s 45 is framed in terms which require the Court to be "satisfied" the consequences of that requirement as described in Wilkie (above), and the other cases to which I have been referred, cannot be avoided.
More generally it seems to me that the temptation to treat the operation of s 45(3) as more summary than substantive, as a formalities check or a check for validity, is the result of a failure to deal with the language of the section, and the particular difficulties occasioned by a disjunctive structure within s 45(3). The approach I have taken gives operation to all the words used, and avoids the selective application of part of that section, consistent with the principle that a court construing a provision is to strive to give meaning to every word of the provision: Project Blue Sky Inc (above).
Leave is not required under s 28 of the Magistrates Court (Civil Division) Act; each of the grounds invoke the categories appearing in s 28(2)(a) of that Act. I record that I would grant leave if it was required.
The Court makes the following orders:
1The order made by the magistrate on 6 October 2017 is quashed.
2The application is remitted to the learned magistrate to be dealt with according to law.