Re Magistrate E A Hamilton
[2015] WASC 76
•27 FEBRUARY 2015
RE MAGISTRATE E A HAMILTON; EX PARTE THE HOUSING AUTHORITY [2015] WASC 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 76 | |
| 27/02/2015 | |||
| Case No: | CIV:1083/2015 | 25 FEBRUARY 2015 | |
| Coram: | MITCHELL J | 25/02/15 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Review order discharged | ||
| B | |||
| PDF Version |
| Parties: | THE HOUSING AUTHORITY |
Catchwords: | Residential tenancy Application to terminate social housing tenancy agreement Review order of magistrate's decision Turns on own facts |
Legislation: | Residential Tenancies Act 1987 (WA), s 75A |
Case References: | Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Craig v State of South Australia (1995) 184 CLR 163 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Re Chief Magistrate Heath; Ex parte Lawrence [2014] WASC 130 Re Gluestein; Ex parte Anthony [2014] WASC 381 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
THE HOUSING AUTHORITY
Applicant
Catchwords:
Residential tenancy - Application to terminate social housing tenancy agreement - Review order of magistrate's decision - Turns on own facts
Legislation:
Residential Tenancies Act 1987 (WA), s 75A
Result:
Review order discharged
Category: B
Representation:
Counsel:
Applicant : Mr D H Solomon
Interested Party : Mr S Vandongen SC
Solicitors:
Applicant : Solomon Brothers
Interested Party : Tenancy WA
Case(s) referred to in judgment(s):
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Craig v State of South Australia (1995) 184 CLR 163
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Re Chief Magistrate Heath; Ex parte Lawrence [2014] WASC 130
Re Gluestein; Ex parte Anthony [2014] WASC 381
1 MITCHELL J:
2 On 2 February 2015 McKechnie J made a review order, on the application of the Housing Authority, pursuant to s 36 of the Magistrates Court Act 2004 (WA). The review order related to a decision of the Magistrates Court of Western Australia, sitting at Bunbury, to dismiss an application by the Housing Authority made to that court under s 75A(1) of the Residential Tenancies Act 1987 (WA).
Legislation
3 Section 75A(1) of the Residential Tenancies Act provides:
(1) A competent court may, upon application by the lessor under a social housing tenancy agreement, terminate the agreement if it is satisfied that the tenant has:
(a) used the social housing premises, or caused or permitted the social housing premises to be used, for an illegal purpose; or
(b) caused or permitted a nuisance by the use of the social housing premises; or
(c) interfered, or caused or permitted any interference, with the reasonable peace, comfort or privacy of any person who resides in the immediate vicinity of the premises,
and that the behaviour justifies terminating the agreement.
The Housing Authority's application
5 The Housing Authority's application to the Magistrates Court sought termination of a residential tenancy in respect of premises in Bunbury leased to Ms A Preston. The application was, in substance, made on the ground that the conditions of s 75A(1)(b) and s 75A(1)(c) were satisfied.
6 The factual material before me is very limited, comprising only the Housing Authority's application under s 75A(1) and the magistrate's reasons for dismissing that application.
7 It is accepted by all parties that the Housing Authority had entered into a residential tenancy agreement with Ms Preston, and that the agreement was a social housing tenancy agreement, for the purpose of the Act. While the details of the nuisance or interference are not clear on the material before me, it seems to be accepted by all parties that Ms Preston had behaved in a manner described in s 75A(1)(b) and s 75A(1)(c) of the Residential Tenancies Act. In any event, no party sought to challenge the magistrate's finding that the conditions referred to in those sub-paragraphs were satisfied.
Grounds for judicial review
8 All parties before me accept that, in this case, I may set aside the magistrate's decision under s 36(4) of the Magistrates Court Act if, and only if, jurisdictional error is established.1
9 The Housing Authority contends that jurisdictional error was committed by the Magistrates Court in dismissing the Housing Authority's application to that court under s 75A(1) of the Residential Tenancies Act.
10 The alleged jurisdictional error is identified in the grounds for the statutory judicial review application:
1. On the proper construction of s 75A(1) of the RTA, the Magistrates Court must make an order for termination where:
1.1 the Court is satisfied there has been behaviour by the tenant of the type referred to in s 75A(1)(a), (b) or (c) of the RTA; and
1.2 the Court is satisfied that the behaviour justifies termination of the tenancy agreement.
2. The learned Magistrate acted without jurisdiction by deciding that, despite being satisfied of both matters referred to in ground 1, the Tenancy Agreement should not be terminated by reason of circumstances other than those referred to in ground 1. Such other circumstances were irrelevant to the issue for determination in the Proceedings.
11 These grounds must be read together, and identify two stages to the Housing Authority's argument.
12 In the first stage, the Housing Authority contends that s 75A imposes a duty to exercise the power which it confers when the conditions for the existence of the power are satisfied. That is, the Housing Authority contends that, in dealing with an application under s 75A(1), the court must terminate the agreement if satisfied that the tenant has engaged in behaviour falling within s 75A(1)(a), s 75A(1)(b) or s 75A(1)(c) and that behaviour justifies terminating the agreement. The effect of the Housing Authority's argument is that 'may' in s 75A(1) means must, and the power conferred is a power, of the kind described in Julius v Lord Bishop of Oxford,2 which is to be exercised upon the court being satisfied of the matters described in the provision.
13 The Housing Authority contends, secondly, that the magistrate dismissed its application despite being satisfied that Ms Preston behaved in a manner described in s 75A(1)(a) - s 75A(1)(c) and despite being further satisfied that the behaviour justified terminating the agreement. The Housing Authority contends that, in doing so, the magistrate purported to exercise a discretion that had not been conferred by the Residential Tenancies Act. It is contended that the magistrate committed jurisdictional error by misconstruing the statute and thereby misconceiving the nature of the function she was performing or the extent of her powers in the circumstances of the particular case;3 and by taking into account irrelevant considerations.4
14 For the purposes of dealing with this argument, I am prepared to assume, without deciding, that s 75A of the Residential Tenancies Act is to be construed as imposing a duty to terminate an agreement when the court is satisfied of the matters referred to in that section. However, even on that assumption, and accepting that the exercise of a residual discretion would involve jurisdictional error on that construction of s 75A, I consider that the application for statutory judicial review on this ground must fail.
The magistrate's reasons
15 The reason why I consider the Housing Authority's application must fail is that I am not satisfied that the magistrate did proceed on the basis that she could dismiss the Housing Authority's application under s 75A(1) even if the conditions for the existence of the power were satisfied. Rather, I am of the view that, when the magistrate's reasons are considered as a whole, the magistrate dismissed the Housing Authority's application only on the ground that she was not satisfied that Ms Preston's relevant behaviour justified termination of the tenancy agreement.
16 In an early part of her reasons the magistrate identified the critical issue for her determination in the following terms (ts 2):
The real issue seems to be whether, on all of the material, and the circumstances as they exist at the time of the hearing, would eviction be justified in all those circumstances.
17 The use of the phrase 'eviction be justified' in this passage is, in my view, merely a shorthand way of expressing the second condition in s 75A(1); ie, that the court is satisfied that the behaviour described in s 75A(1)(a) - s 75A(1)(c) justifies termination of the agreement.
18 In the passage I have just quoted, the magistrate took the view that she should consider the question of whether the relevant behaviour justified terminating the tenancy agreement at the time of the hearing rather than at the time of behaviour. The fact that the magistrate held that the question of whether Ms Preston's behaviour justified termination of the tenancy agreement was to be considered at the time of the hearing explains her reference to events subsequent to the behaviour.
19 The magistrate also took the view that the behaviour referred to in s 75A(1)(a) - s 75A(1)(c) is not to be considered in isolation but in the context of the circumstances of the case. In addressing subsequent events, the magistrate was addressing the question of whether, in the circumstances, Ms Preston's behaviour justified termination of the tenancy agreement.
20 The magistrate then referred to evidence of a change in Ms Preston's behaviour (ts 2 - 3) before saying (ts 3):
So the issue then is, would the eviction be justified.
21 The magistrate turned to consider the material filed by the Housing Authority and noted that the behaviour occurred when Ms Preston's partner was present and there were issues of domestic violence occurring between the two (ts 3 - 4). In the course of that discussion, the magistrate observed (ts 3):
I think it [power imbalance] is something that the court is justified in turning its mind to when it considers whether the eviction is justified in all of the current circumstances.
22 This passage again indicates that the magistrate was considering only whether the behaviour justified terminating the tenancy agreement in the circumstances as they existed at the time the court dealt with the application under s 75A(1).
23 The magistrate then summarised evidence adduced by Ms Preston, before continuing (ts 5):
The department say that the behaviour of the tenant justifies the termination and all the supports that had been put in place for Ms Preston have not stopped the behaviour. While that may be true in a technical sense, there have been, on my findings, significant changes to the behaviour of Ms Preston since the violence restraining order was put in place.
24 The Housing Authority construes the word 'that' in the second sentence of this passage as comprehending the department's submission that 'the behaviour of the tenant justifies termination'. Senior counsel for Ms Preston submits that the word 'that' refers only to the second limb of the preceding sentence. That is, on senior counsel's submissions, the magistrate is indicating that, while it is true in a technical sense that supports have not stopped the behaviour, there have been significant changes to Ms Preston's behaviour since the violence restraining order was put in place.
25 In my view, the construction of this passage advanced by senior counsel for Ms Preston is to be preferred. The subject of the second sentence concerns only the changes to the behaviour. The more natural meaning of the magistrate's reasons is that she is saying that while the relevant behaviour has not stopped altogether, it has improved.
26 Further, even if the first two sentences of the passage, considered in isolation, support the Housing Authority's argument, when the passage is considered in light of the preceding and following reasons it is clear that the magistrate decided the case only by reference to whether the behaviour justified termination of the tenancy agreement in the then current circumstances.
27 The magistrate then said (ts 5):
The decision in relation to the application for termination of tenancy and vacant possession forthwith is a two step process. That was very clearly identified by the court in the Supreme Court decision of Re Chief Magistrate Steven Heath; Ex parte Lawrence [2014] WASC 130.
28 Both parties accepted that the 'two-stage process', referred to by McKechnie J in Re Chief Magistrate Heath; Ex parte Lawrence,5 involved a first stage of considering whether behaviour described in s 75A(1)(a) - s 75A(1)(c) had occurred and a second stage of considering whether that behaviour justified termination of the agreement. The magistrate's reasons, referring to the decision in Lawrence, should be taken to employ the phrase 'two step process' in the same sense.
29 I note that, in Lawrence,6 McKechnie J refers to a decision under s 75A as involving the exercise of a discretion. As the majority noted in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,7 the term 'discretion' is a notion that signifies a number of different legal concepts. Counsel for the Housing Authority submitted that McKechnie J was using the term 'discretion' in the last sense identified by the majority in that case: namely that the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgement. Understood in that sense, the reference to 'discretion' is unobjectionable. For myself, I would not generally refer to a decision about whether a court is satisfied of a specified matter as involving the exercise of a discretion.8 However, in the present case nothing turns on the use by McKechnie J of the term 'discretion' to describe the court being satisfied that the behaviour justifies termination of the agreement.
30 The magistrate then continued (ts 5):
That is, the first step is to establish the behaviour and whether that would ground an eviction.
Now, as I said in the beginning, that's really not been in issue. The real issue is would the current set of circumstances and behaviour justify eviction and that two step process was clearly approved of by McKechnie J in the case I've just referred to.
31 The Housing Authority contends that the first sentence of the passage I have just quoted involves the magistrate considering, and being satisfied of, both stages of the two-stage process referred to my McKechnie J in Lawrence. It contends that the reference to 'the behaviour' in the first sentence is to behaviour of the kind described in s 75A(1)(a) - s 75A(1)(c), and the reference to behaviour that would 'ground an eviction' is to behaviour that would justify termination of the agreement.
32 I do not agree with that construction of the magistrate's reasons. In my view, the reference to behaviour that would 'ground an eviction' is to behaviour, established by the evidence, of a kind described in s 75A(1)(a) - s 75A(1)(c) of the Residential Tenancies Act. That is confirmed by the reference in the third sentence to the real issue being concerned with whether circumstances and behaviour justify eviction. The phrase 'justify eviction' is again being used by the magistrate, in my view, as a shorthand expression of the statutory requirement that she be satisfied that the behaviour justifies terminating the agreement.
33 The reference to the 'two step process … approved of by McKechnie J' in the last sentence of the last quoted passage from the magistrate's reasons also supports the view that the reference to behaviour that would 'ground an eviction' is to behaviour of the kind referred to in s 75A(1)(a) - s 75A(1)(c) of the Residential Tenancies Act. The first stage referred to by McKechnie J involved that question. As senior counsel for Ms Preston observed, if the magistrate had intended to introduce a third stage (comprising a residual discretion) into the process, she would be expected to have said so expressly.
34 The magistrate concluded her reasons in the following manner:
Because of the evidence, particularly that of the children's headmaster or principal, I am satisfied that the detriment that would be suffered by the children would far outweigh any of the current situation - the current circumstances that apply to Ms Preston and her children. And, in my view, eviction is not justified on the current set of circumstances established by the evidence and I dismiss the application.
35 The final sentence of this passage expresses the magistrate's ultimate conclusion in terms of whether eviction (by which I take the magistrate to mean termination of the agreement) is justified.
36 When the magistrate's reasons are considered as a whole it is, in my view, clear that she has been satisfied that behaviour of the kind referred to in s 75A(1)(a) - s 75A(1)(c) has occurred, but she has not been satisfied that the behaviour justified termination of Ms Preston's tenancy agreement.
Other issues
37 I note that during the course of submissions there was some debate as to the matters which could properly be taken into account in deciding whether relevant behaviour justified termination of a tenancy agreement. In fairness to counsel, that debate was generated by questions I asked about the proper construction of s 75A of the Residential Tenancies Act.
38 However, as both counsel made clear, the Housing Authority was not contending that the magistrate erred in taking into account irrelevant considerations in deciding whether she was satisfied that the relevant behaviour justified termination of the tenancy agreement. Such an argument, anticipated in written submissions filed on behalf of Ms Preston, was expressly disavowed by counsel for the Housing Authority.
39 I have considerable sympathy for the view adopted by the magistrate that the question of whether relevant behaviour justifies termination of a tenancy agreement is a question to be answered by reference to the circumstances existing at the time the court hears an application under s 75A of the Act. However, it is unnecessary for me to reach any final conclusion on this question. I am not asked by the Housing Authority to rule that the improvement in Ms Preston's behaviour and the effect termination would have on Ms Preston's children were irrelevant to the magistrate's consideration of whether she was satisfied that Ms Preston's behaviour justified termination of the tenancy agreement.
Conclusion
40 For the reasons I have given, on the assumption that the power conferred by s 75A(1) must be exercised when the court is satisfied of the matters referred to in the provision, the magistrate did not commit the jurisdictional error which the Housing Authority sought to identify. Rather, she determined the case on the basis that she was not satisfied of one of those matters, namely that the behaviour justifies termination of the agreement. The premise for the Housing Authority's application to this court - that the magistrate dismissed the s 75A application by reason of circumstances other than whether she was satisfied that the behaviour justified termination of the tenancy agreement - is not made out. It follows that the application for statutory judicial review must fail.
41 I would, therefore, discharge the review order.
1 Section 26(2) of the Residential Tenancies Act, considered in Re Gluestein; Ex parte Anthony [2014] WASC 381 [25].
2 (1880) 5 App Cas 214. See also Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134 - 135, 138 - 139; Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 [38].
3Craig v State of South Australia (1995) 184 CLR 163, 177 - 178.
4 See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.
5 [2014] WASC 130 [23].
6 [23].
7 [2000] HCA 47; (2000) 203 CLR 194 [19].
8 See Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 [25] - [26].
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