Re Magistrate Raelene Natasha Johnston - [2017] WASC 226

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RE MAGISTRATE RAELENE NATASHA JOHNSTON; EX PARTE WALLAM [2017] WASC 226

CORAM: PRITCHARD J

HEARD: 31 JULY 2017

DELIVERED : 31 JULY 2017

PUBLISHED : 11 AUGUST 2017

FILE NO/S: CIV 1971 of 2017

MATTER :An Application under s 36 of the Magistrates Court Act 2004 for a Review Order against Raelene Natasha Johnston, Magistrate of the Magistrates Court of Western Australia

EX PARTE
TERESA ANN WALLAM
Applicant
HOUSING AUTHORITY
Other Party

Catchwords:

Administrative law - Judicial review - Residential Tenancies Act 1987 (WA) - Whether behaviour justifies termination of tenancy agreement - Social housing - Relevant considerations - Whether surrounding circumstances can be considered in determining whether termination justified

Legislation:

Magistrates Court Act 2004 (WA), s 35, s 36
Residential Tenancies Act 1987 (WA), s 15, s 26, s 62, s 64, s 71, s 73, s 74, s 75A, s 75

Result:

Judicial review granted
Magistrate's decision quashed
Matter remitted for determination according to law

Category: B

Representation:

Counsel:

Applicant: Mr C G Colvin SC
Other Party : Mr A J Sefton

Solicitors:

Applicant: Aboriginal Legal Service (WA)
Other Party : State Solicitor for Western Australia

Cases referred to in judgment:

Blanket v The Housing Authority [2014] WASC 409
Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
In re a Solicitor [1945] 1 KB 368
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Rayney v AW [2009] WASCA 203
Re Chief Magistrate Steven Heath; Ex parte Lawrence [2014] WASC 130
Re Magistrate E A Hamilton; Ex parte The Housing Authority [2015] WASC 76
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

PRITCHARD J:

(These reasons were delivered extemporaneously on 31 July 2017 and have been edited from the transcript.)

On 12 May 2017, a Magistrate made orders terminating a social housing tenancy agreement between the Housing Authority and Ms Wallam (tenancy agreement) and required that Ms Wallam give vacant possession of the home which she leased (the Home) pursuant to that agreement (the Decision). The Decision was made by the learned Magistrate pursuant to s 75A of the Residential Tenancies Act 1987 (WA) (the Act).
Ms Wallam has made an application for review of the Decision pursuant to s 36 of the Magistrates Court Act 2004 (WA) (MC Act), on grounds alleging that the learned Magistrate made jurisdictional errors in making the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] WASC 226
Decision Date: 11 AUGUST 2017

CaseChat Overview and Summary

In the matter of Re Magistrate Raelene Natasha Johnston, the appellant, Ms Wallam, challenged the decision of the first respondent, the learned Magistrate, to terminate her tenancy agreement. The dispute arose from Ms Wallam's involvement in illegal activities facilitated by her partner, Mr Miller, who resided at her social housing property. The Western Australian Residential Tenancies Act 1987 was the primary legal framework for the dispute, particularly Section 75A, which allows for the termination of a tenancy agreement due to unlawful conduct. The court had to determine whether the learned Magistrate correctly assessed Ms Wallam's behaviour and if she could take into account the circumstances that arose after the lodging of the Housing Authority's application for termination.

The primary legal issue was whether the learned Magistrate was correct in law to take into account Ms Wallam's subsequent good behaviour and other factors when deciding whether to terminate the tenancy agreement. The court examined whether the learned Magistrate was bound by the conduct at the time of the application or if she could consider the changes in Ms Wallam's circumstances post-application. Additionally, the court needed to ascertain if the learned Magistrate could consider surrounding circumstances beyond the illegal activities themselves when making the termination decision.

The court concluded that the learned Magistrate was correct in law to consider the change in Ms Wallam's circumstances post-application, including her subsequent good behaviour and care for her children. The court found that the learned Magistrate was not bound by the conduct at the time of the application alone and could consider broader circumstances. The court held that the learned Magistrate's decision to take into account Ms Wallam's subsequent behaviour and the impact of terminating her tenancy on her and her children was appropriate. The appeal was dismissed, and the original decision of the learned Magistrate was upheld.

The court ordered that the stay granted in respect of the learned Magistrate's decision be discharged, effectively allowing the termination of Ms Wallam's tenancy agreement to proceed. However, due to the potential homelessness that could result, the court recommended that the Housing Authority consider alternative measures to ensure Ms Wallam and her children do not become homeless as a result of the termination.

Orders

Orders of the court

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Background

Background to the litigation

The factual background Ms Wallam lived at the Home from November 2010. Until 2015 (that is, for over four years), Ms Wallam had lived at the Home without incident and the Housing Authority had had no concerns about her behaviour. However, trouble arose in 2015. That appears to have coincided with a period during which Ms Wallam entered into a relationship with a Mr Miller, who lived with her at the Home. The learned Magistrate accepted Ms Wallam's evidence that he was a 'bad influence' on her. Three other persons also either resided at, or appeared to have frequented, the Home during the same period. The learned Magistrate found that during this period, Ms Wallam permitted the Home to be used for the purposes of offences under the Misuse of Drugs Act 1981 (WA).[1][1] ts 4 (12 May 2017). Five search warrants were executed at the Home during 2015 and early 2016. They resulted in charges being laid against Mr Miller, the three other persons to whom I have referred, and Ms Wallam. Ms Wallam was convicted of the following offences: possession of a prohibited drug, namely diazepam; two counts of possession of unlicensed ammunition; possession of cannabis with intent to sell or supply; possession of methamphetamine with intent to sell or supply; selling a prohibited drug, namely methamphetamine; and possession of stolen goods. Ms Wallam's evidence, which the learned Magistrate accepted, was that by November 2015, she realised that she was in 'the wrong crowd', and she made it clear to the three other persons frequenting the Home that they could not continue to engage in the sort of behaviour in which they previously engaged. It appears to have taken Ms Wallam a few more months before she realised that Mr Miller was also a part of the problem, and that she had to take steps to end her relationship with him, and thus to bring an end to his behaviour at the Home. The evidence at the trial, which the learned Magistrate accepted,[2] was that since Ms Wallam separated from Mr Miller, she had been doing well.[2] ts 6 (12 May 2017). There was also evidence, again accepted by the learned Magistrate,[3] that Ms Wallam lived at the Home with her own three children, and with two other children for whom she was the primary carer. All of those children were of school age. The learned Magistrate accepted[4] that the children were going to school and that Ms Wallam was caring for them well.[3] ts 6 (12 May 2017).[4] ts 6 (12 May 2017). There was also no evidence that Ms Wallam had used the Home for an illegal purpose since April 2016, and the learned Magistrate accepted that Ms Wallam had been conducting herself in an appropriate manner since that time.[5][5] ts 6 (12 May 2017). The only other matter which I should mention is that after the Decision, Ms Wallam vacated the Home in compliance with the orders of the learned Magistrate, and in advance of the date by which she was required to give vacant possession. Ultimately, I granted a stay in respect of the decision of the learned Magistrate, to preserve Ms Wallam's opportunity to live at the Home. It was apparent in the course of the stay application that the termination of the tenancy agreement would cause real difficulties for Ms Wallam in finding another place to live. Since vacating the Home, she and the five children in her care have been effectively without a home and have had to make do with temporary accommodation with relatives, in circumstances which are clearly wholly unsatisfactory and cannot continue in the longer term. I refer to that only to illustrate the fact that the unfortunate reality for many social housing tenants is that the termination of their tenancy agreement may well result in them being homeless.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Decision Insofar as Mr Miller's conduct was concerned, the learned Magistrate found that Ms Wallam had turned a blind eye to what was going on in the Home and thus permitted her house to be used for illegal purposes, by Mr Miller.[6][6] ts 4 (12 May 2017). At one point, it appeared that the learned Magistrate took Mr Miller's conduct into account in determining whether the tenancy agreement should be terminated. However, the learned Magistrate then said:[E]ven irrespective of Mr Miller's convictions, even if I was not to take his convictions and his use of the premises into account, I would come to the same finding that I ultimately do, just considering Ms Wallam's convictions alone, and I would turn to them now.[7][7] ts 4 (12 May 2017). The learned Magistrate then considered the nature of the offences for which Ms Wallam had been convicted. She observed:[8]Ms Wallam pleaded guilty to all of the charges that she faced and she was sentenced on the basis that her offending was limited to the period when she was in the relationship with Mr Miller. The investigating officer of the investigation, or at least part of it, accepted that her role was not as serious as Mr Miller's. However, even so, some of the charges that she pleaded guilty to were very serious. I accept that they were ‑ her offending was confined to this relatively short period, but nonetheless it's behaviour that I had to consider under s 75A of the [Act]....Drug matters, particularly the sale or possession with intent to sell or supply are serious matters. I also note that even considering the investigating officer's concessions and the basis on which Ms Wallam was sentenced, her offending effectively escalated over the span of four search warrants.Had this matter been dealt with more proximate to the filing of the Housing Authority's application, s 75A of the [Act] would have clearly been met and Ms Wallam would have been evicted....Clearly, if this had been dealt with proximate to the time of the last search warrant in April 2016, or even at the time that the Housing Authority lodged its application, which I find it lodged at the appropriate time, given the inquiries that it had to make, clearly Ms Wallam would have been, in my view, ought to have been the subject of a termination of the lease. So I have to consider whether I am able to take into account firstly the factors that have occurred subsequent to the lodgement of the application, and secondly whether I can take into account other factors other than the behaviour that the Housing Authority complains of.The issue is whether I can take into account the change in Ms Wallam's circumstances since the behaviour, as defined in s 75A.[8] ts 5 ‑ 6 (12 May 2017). The learned Magistrate noted that that subsequent conduct included Ms Wallam's conduct, and her looking after the five children in her care. The learned Magistrate then continued:[9]There's no suggestion that she has used the house or the premises for an illegal purpose since the last search warrant ... . I accept that Ms Wallam has been conducting herself in an appropriate manner after the last search warrant and certainly after she was sentenced in the Magistrates Court for the matters that she pleaded guilty to, but the question is whether I can take that into account.Ms Wallam's counsel says that I can. The Housing Authority says that I can't, and I've been referred to some cases in that respect. None of them are directly on point.[9] ts 6 (12 May 2017).

Ratio Decidendi

Legal Principle Established

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