JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE MAGISTRATE T WATT; EX PARTE THE HOUSING AUTHORITY [2015] WASC 140 CORAM : MITCHELL J HEARD : ON THE PAPERS DELIVERED : 24 APRIL 2015 FILE NO/S : CIV 1274 of 2015 MATTER : Application under the Magistrates Court Act 2004 s 36 for a review order against Magistrate Tanya Watt of the Magistrates Court at Katanning EX PARTE
THE HOUSING AUTHORITY
Applicant
Catchwords:
Residential tenancy - Application to terminate social housing tenancy agreement - Review of magistrate's orders - Whether power to order grant of new tenancy on a different premises
Legislation:
Magistrates Court Act 2004 (WA), s 36
Residential Tenancies Act 1987 (WA), s 71 Result:
Orders of the Magistrates Court set aside
Category: B
Representation:
Counsel:
Applicant : Mr S Thackrah
Solicitors:
Applicant : The Housing Authority
Case(s) referred to in judgment(s):AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29Craig v The State of South Australia (1995) 184 CLR 163Hamersley Iron Pty Ltd v James [2015] WASC 10Re Gluestein; Ex parte Anthony [2014] WASC 381Factual background 1 On 21 November 2014 the Housing Authority made an application to the Magistrates Court of Western Australia for an order terminating the tenancy of Mr David Wilding (the Tenant) of residential premises at Broomehill, Western Australia (the Tenancy). The Housing Authority also sought an order that it have possession of the Broomehill premises forthwith.
2 The Housing Authority's application was based on:
1. a notice to the Tenant of breach of the Tenancy agreement (other than failure to pay rent) dated 5 June 2014; and 2. a notice of termination of the Tenancy dated 6 November 2014 on the ground the Tenant had breached a term of the Tenancy agreement and the breach had not been remedied.
3 The alleged breach of the Tenancy agreement involved the failure to maintain the Broomehill premises in a clean and tidy condition, and a failure to maintain the garden area of the premises to a standard commensurate with the standard generally applying to residences in the same street. 4 The Housing Authority's application to the Magistrates Court was heard in Katanning on 19 January 2015. The Tenant attended the hearing and opposed the order. During the course of the hearing the court made orders (Orders) that:
The Department of Housing is to transfer the Tenancy to Albany in a location close to medical facilities within 30 days or so soon after as is practical. Upon transfer the Tenancy at [the Broomehill premises] is terminated and possession returned to the Owner.
5 The magistrate's reasons for making the orders are a little hard to discern, as she did not adopt the usual course of receiving evidence and submissions and then setting out her reasons for decision. Rather, the proceedings on 19 January 2015 proceeded by way of discussion between the magistrate, the Tenant and the officer of the Housing Authority who attended the hearing. 6 The Authority's representative indicated that the reason for the proposed termination was that the Tenant had a large collection of items, including unlicensed vehicles, throughout the front and back yards of the Broomehill premises. The representative indicated that the house was a fire hazard and had a heavy smell of ammonia due to 'letting the cats do their business where they please'. The representative indicated that the Authority had attempted to employ services to clean the property, but the Tenant did not allow that to proceed to a point where it was acceptable (ts 2).
7 The Tenant then gave an account in which he described various matters including caring for cats at the property, significant health issues from which he suffered, how he had attempted to clean the property up by himself and an application for transfer which he had made to get closer to a hospital in Albany. The Authority's representative indicated that the Authority was not prepared to transfer the Tenant to a new tenancy by reason of his failure to maintain the Broomehill premises.
8 During the course of the discussion, the magistrate observed that the Broomehill premises appeared to be a fire hazard and a health hazard on photos with which she had been provided (ts 8). The magistrate said that it was clear to her that the Tenant, by reason of his disability and injuries, was not in a position to upkeep a house like the Broomehill premises and that he needed to move to a smaller place, which did not require so much work, close to a hospital (ts 12 - 13).
9 The magistrate then inquired of the Authority's representative as to whether there was a smaller location in Albany closer to hospitals to which the Tenant could transfer if the magistrate made an order to that effect. The Authority's representative indicated that she was unaware of the current stock in Albany, but that the Authority would comply with an order made by the court (ts 14). After some discussion with the Tenant as to what he would need to leave behind, the magistrate made the Orders (ts 18 - 19).
10 There followed further discussion between the magistrate, the Tenant and the Authority's representative as to what would be involved in the transfer to Albany.
Procedural background
11 On 26 February 2015 the Housing Authority filed an application for a review order under s 36 of the Magistrate's Court Act 2004 (WA), which would require the magistrate and the Tenant to show cause why an order should not be made setting aside the Orders and substituting in lieu orders that the Tenancy be terminated or, alternatively, the proceedings be remitted to the magistrate for determination according to law. The first ground of the application for a review order was:
The learned magistrate acted without jurisdiction by ordering, that the Applicant transfer the Tenant to Albany (by way of the grant of a new social housing tenancy).
12 The Authority also alleged, in effect, that the magistrate acted without jurisdiction by, despite being satisfied of the matters referred to in s 71(2) of the Residential Tenancies Act 1987 (WA) (RTA), determining that the Tenancy should not be terminated until after the Tenant had been transferred by the Authority to an alternative property in Albany. 13 I heard the application for a review order on 25 March 2015. At that time I made the review order, stayed the operation of the Orders until 15 April 2015 or further order and made orders for service of the magistrate and Tenant.
14 The review order was returned before me on 15 April 2015. The magistrate had, by that time, appropriately filed a submitting appearance. There was no appearance by the Tenant and I was satisfied that he had been properly served with the review order giving him notice of the hearing date. In those circumstances I considered it appropriate to proceed with the hearing in the absence of the Tenant. The Authority was content to rely on the application, affidavits and submissions that it had filed.
Statutory background
15 The Tenancy is a residential tenancy agreement to which the RTA applies.
16 Section 60 of the RTA defines the only circumstances in which a residential tenancy agreement shall terminate, one of which is:
17 Section 62(1) of the RTA provides:
A lessor may give notice of termination of a residential tenancy agreement to the tenant upon the ground that the tenant has breached a term of the agreement and the breach has not been remedied.
18 Section 62(3) of the RTA provides:
Where notice of termination is given under this section upon the ground of a breach of the agreement other than the agreement to pay rent, the notice is ineffectual unless a notice specifying the breach and requiring that it be remedied is given to the tenant not less than 14 days before the notice of termination is given.
19 Other grounds on which a lessor may terminate a residential tenancy agreement are provided for in other parts of the RTA. Some of those grounds are specific to a 'social housing tenancy agreement' such as the Tenancy. One ground, provided for by s 71H of the RTA, is where a lessor under a social housing tenancy agreement has offered to enter into a new agreement in respect of alternative premises. However, that process is instigated by the lessor, not the tenant or the court. There was no evidence that the Housing Authority sought to engage the operation of s 71H of the RTA in this case. 20 Section 71(1) of the RTA provides for a lessor who has given notice of termination to apply to a competent court for an order terminating the agreement and an order for possession of the premises.
21 Section 71(2) of RTA provides for the manner in which the court is to resolve the application under s 71(1) of the RTA, in the following terms relevant to the present case:
Subject to this section, a competent court shall, upon application under this section, make an order terminating the agreement and an order for possession of the premises, if it is satisfied: (a) that notice of termination was given by the lessor or tenant to the other and that it complied with and was given in accordance with this Act; and
(b) where the notice was given by the lessor upon a particular ground prescribed by this Act … that the lessor has established that ground and, in the case of notice upon the ground of a breach by the tenant of a term of the agreement, that the breach is in all the circumstances such as to justify termination of the agreement.
22 In considering the circumstances of the case, the court is required to have regard to such of the matters referred to in s 71(3C) of the RTA as may be relevant. 23 Section 71(2) of the RTA operates subject to s 71(3) of the RTA. Section 71(3) provides for the circumstances in which, notwithstanding s 71(2), the court may either suspend the operation of orders made under s 71(2) for a period not exceeding 30 days or refuse to make orders under s 71(2) of the RTA.
24 Section 71(3)(a) of the RTA enables orders to be suspended where the court is satisfied that it is desirable to do so having regard to the relative hardship that would be caused to the lessor by suspending the orders, or to the tenant by not suspending the orders.
25 Section 71(3)(b) of the RTA enables the court to refuse to make orders if it is satisfied that the lessor was wholly or partly motivated by certain complaints or steps to enforce rights by the tenant. Section 71(3)(b) of the RTA also enabled the court to refuse to make orders in this case if it was satisfied that the Tenant had remedied the relevant breach, but required the court to take into account any previous breaches of the agreement by the Tenant.
26 Section 71(5) of the RTA requires the court, subject to s 71(3)(a), to specify the date from which orders terminating a tenancy shall operate.
27 In the above statutory scheme, s 71(2) of the RTA identified the conditions for the existence of the power to terminate a residential tenancy agreement and make an order for possession of the leased premises. The use of the term 'shall' in the chapeau to s 71(2), combined with the limited grounds for refusing to make an order in s 71(3)(b), indicate that the court was under a duty to exercise the power conferred by s 71(2) where the conditions for the existence of that power were satisfied, unless the court was satisfied of one of the matters specified in s 71(3)(b)(i) or s 71(3)(b)(ii) of the RTA.
Jurisdictional error
28 I may set aside the Orders under s 36(4) of the Magistrates Court Act if, and only if, jurisdictional error is established.1
29 In the present case the RTA required the magistrate to consider whether she was satisfied of the matters specified in s 71(2)(a) and s 71(2)(b) of the RTA. If she was so satisfied, then she was required to make an order terminating the Tenancy and an order for possession of the Broomehill premises unless she was satisfied of one of the matters specified in s 71(3)(b)(i) or s 71(3)(b)(ii) of the RTA. The magistrate could also suspend orders which she made for up to 30 days if satisfied that it was desirable to do so, having regard to the matters referred to in s 71(3)(a)(i) and s 71(3)(a)(ii) of the RTA. If the magistrate was not satisfied of the matters specified in s 71(2)(a) and s 71(2)(b) of the RTA she was required to refuse to make orders terminating the Tenancy, as the conditions for the valid exercise of the power to do so would not be satisfied. If the magistrate was satisfied of the matters specified in s 71(2)(a) and s 71(2)(b) of the RTA, and was also satisfied of one of the matters specified in s 71(3)(b)(i) or s 71(3)(b)(ii) of the RTA, then she was empowered but not required to refuse to make orders terminating the Tenancy.
30 That statutory scheme did not leave room for the magistrate to order the Authority to grant a new tenancy to the Tenant in different premises (which is what the Orders in substance required). Nor did the RTA empower the magistrate to make the grant of a new tenancy a condition for the operation of orders terminating the Tenancy.
31 In making the orders, the magistrate misconstrued the RTA, which was the source of the court's jurisdiction, and thereby misconceived the nature of the function which she was required to perform. In particular, she misapprehended the nature or limits of the powers conferred on the Magistrates Court by the RTA, by asserting a jurisdiction to require the Authority to grant a new tenancy to the Tenant where that power simply did not exist. In asserting a power which the court did not have, the magistrate committed jurisdictional error.2
32 Jurisdictional error having been established, and there being no discretionary reason for refusing relief, it is appropriate for this court to order that the Orders be set aside on ground 1 of the application. In those circumstances, it is unnecessary to consider whether the orders should also be set aside for the reasons asserted in ground 2 of the application.
Substituted decision
33 The Housing Authority also sought an order in effect substituting a decision terminating the tenancy. In my view, it is not appropriate to make such an order in this case.
34 The Housing Authority sought to have me infer from the Orders and comments made by the magistrate during the hearing that she was satisfied of the matters referred to in s 71(2)(a) and s 71(2)(b) of the RTA. However, I do not consider it appropriate to draw that inference in the circumstances. There is an important distinction to be drawn between comments which a judicial officer may make during the course of a hearing and the judicial officer's reasons for decision.3 I do not think it satisfactory to draw inferences in this case from comments made during discussions the magistrate had with the parties, when her conclusions were not expressly stated.
35 Further, I have not been provided with the primary material before the magistrate, including the tenancy agreement and the photographic evidence showing the state of the Broomehill premises, and so am not in a position to make my own assessment of whether any finding that the magistrate might have made in relation to matters referred to in s 71(2)(a) and s 71(2)(b) of the RTA was open on the evidence.
36 Finally, the Housing Authority does not point to anything to indicate that the magistrate was, or was not, satisfied of the matters referred to in s 71(3) of the RTA. In reaching that conclusion, I accept that the material before me does not indicate any evidence on which the court might be satisfied of the matters referred to in s 71(3)(b), so that the magistrate might have been justified in refusing to make a termination order under that paragraph. However, the material before me does suggest that it may be open to the magistrate to be satisfied that any termination order should be suspended for up to 30 days under s 71(3)(a) of the RTA.
37 The making of the order sought by the Housing Authority was not, therefore, inevitable. At least in these circumstances, the rule, identified by Beech J in Gluestein,isapplicable:
An application under s 36 is a statutory form of judicial review. Like common law proceedings for judicial review, proceedings under s 36 are concerned with the legality of decisions, not with the merits of decisions. Where, as here, the applicant for relief contends that the orders of the Magistrates Court were made without jurisdiction, the primary relief that flows from such a conclusion is that the order be set aside. If successful, a review application results in a rehearing of the application the subject of the original decision. The court does not make the decision, or make other orders in place of the orders set aside [57]. (citations omitted)
38 For these reasons, I am not prepared to substitute, for the Orders, orders of this court terminating the Tenancy, as sought by the Housing Authority. Once the Orders are set aside, the Magistrates Court will be under an undischarged duty to determine the Housing Authority's application for termination of the Tenancy according to law. No further order of this Court is required to impose such a duty on the Magistrates Court, although to avoid confusion it is convenient to make an order remitting the Housing Authority's application to the Magistrates Court for determination according to law.Orders
39 For the above reasons, I make an order setting aside the Orders, and remitting the Housing Authority's application under s 71 of the RTA to the Magistrates Court for determination according to law.
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1Section 26(2) of the RTA, considered in Re Gluestein; Ex parte Anthony [2014] WASC 381 [25].2Craig v The State of South Australia (1995) 184 CLR 163, 177 - 178; Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [45]; Hamersley Iron Pty Ltd v James [2015] WASC 10 [55].3 See AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [16].