Cain v New South Wales Land and Housing Corporation

Court of Appeal (NSW)|2014-02-18|Before: Basten JA, Gleeson JA, Leeming JA

Mr A L Tokley SC/Mr A K Flecknoe-Brown (Applicant) Mr N Owens/Mr A Cornish (First Respondent) Submitting appearance (Second Respondent) Solicitors:

Tenants' Union of NSW (Applicant) NSW Land and Housing Corporation (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): CA 2013/189609 Decision under appeal Jurisdiction: 9101 Citation: New South Wales Land and Housing Corporation v Cain [2013] NSWDC 68 Date of Decision: 2013-05-23 00:00:00 Before: Gibson DCJ File Number(s): DC 2012/390440

Judgment 1BASTEN JA: The applicant, Ms Kerry Anne Cain, seeks orders by way of judicial review, setting aside a judgment in the District Court and reinstating orders made in the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). 2The respondent, the New South Wales Land and Housing Corporation ("the Housing Corporation"), is a body corporate established under the Housing Act 2001 (NSW), s 6, and is the landlord of premises in Bundock Street, Coogee, which the applicant occupies under a residential tenancy agreement. 3On 3 August 2011 the applicant was arrested and charged with offences under the Drug Misuse and Trafficking Act 1985 (NSW). On 20 September 2011 the Housing Corporation commenced proceedings in the Tribunal seeking a "termination order", pursuant to s 91 of the Residential Tenancies Act 2010 (NSW). A "termination order" is defined to mean "an order terminating a residential tenancy agreement together with an order for possession of the residential premises": Residential Tenancies Act, s 80. 4That application was not determined by the Tribunal until 19 November 2012, more than a year later. The delay is not explained in the materials before this Court, but it may be inferred that it resulted from unwillingness to interfere with the terms of conditional bail on which the applicant was released on 16 August 2011, requiring her to reside at the leased premises, and the fact that the criminal proceedings in the District Court remained on foot until 9 August 2012. On that day, the applicant received a "Griffith's remand" pursuant to which the proceedings were adjourned until 7 June 2013 for the purpose of allowing the applicant to demonstrate that she had overcome the condition which led to her dealing in cannabis: see Crimes (Sentencing Procedure) Act 1999 (NSW), s 11(1). 5The Tribunal made two orders on 19 November 2012, namely: "1. Specific performance order The tenant is to comply with the residential tenancy agreement in particular, not to cause or permit the premises to be used for any illegal purpose. 2. If the specific performance order is not complied with then the applicant any time prior to 19 November, 2013 may request the re-listing of the application to determine whether the tenancy should be terminated." 6The applicant was convicted of cultivation and supply of cannabis. The cultivation did not take place at the leased premises, but at premises in May Street, St Peters. The Tribunal found there to be no evidence of any actual supply by her "at or in the vicinity of the residential premises". However, 12.5 kilograms of cannabis (being prepared for distribution) were located at the leased premises. 7On 17 December 2012 the Housing Corporation commenced an appeal in the District Court against the orders made by the Tribunal. The appeal was limited to a decision of the Tribunal "with respect to a matter of law": Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act"), s 67(1). (The CTTT Act has since been repealed by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW), s 3(a), which commenced on 1 January 2014.) 8The foregoing background account has been derived from statements in the decision of the Tribunal and the judgment of the District Court. The applicant noted that there were some erroneous statements in the judgment of the District Court but they do not appear to have included the matters referred to above. Neither party sought to place before this Court the initiating process in the Tribunal, nor the notice of appeal in the District Court. 9The jurisdiction of this Court is founded upon s 69 of the Supreme Court Act 1970 (NSW). Although various orders were sought in the summons, it was sufficient for the applicant's purposes to obtain an order quashing or setting aside the judgment of the District Court. In support of such relief the applicant was entitled to rely upon either jurisdictional error or an error of law on the face of the record of the District Court. For the latter purpose, the reasons for judgment constituted part of the record: s 69(3) and (4). There is no privative clause affecting these proceedings in the District Court Act 1973 (NSW), or in the CTTT Act. 10Two errors of law were identified by the applicant, namely findings by the District Court that: (a) the Tribunal had no discretion to decline to make a termination order once its jurisdiction was engaged by an application under s 91 of the Residential Tenancies Act, and (b) on the assumption that the Tribunal did have a discretion, it took into account impermissible considerations. 11The judgment of the District Court was delivered on 23 May 2013: New South Wales Land and Housing Corporation v Cain [2013] NSWDC 68 (Gibson DCJ). The proceedings for judicial review were commenced by summons filed on 21 June 2013. Given that the application, described in the District Court as invoking a "fast track tenancy termination" procedure, it has been pursued in a fairly relaxed manner. It is now two years and five months since the proceedings were commenced. A submission from the Housing Corporation that relief should be refused because it would be futile, given the lapse of time, was abandoned at the hearing of the appeal.

Whether Tribunal had discretion to refuse order 12The Housing Corporation applied to the Tribunal for an order pursuant to s 91 of the Residential Tenancies Act, which provides: 91 Use of premises for illegal purposes (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted: (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination. (2) In considering whether to make a termination order on the ground specified in subsection (1) (b), the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the unlawful use, (b) any previous unlawful uses, (c) the previous history of the tenancy. (3) The termination order may specify that the order for possession takes effect immediately. (4) A landlord may make an application under this section without giving the tenant a termination notice. (5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. 13In the District Court, the primary judge accepted the submission of the Housing Corporation that "a finding that the defendant had in fact committed the unlawful acts referred to in s 91(1)(a) is sufficient to trigger the issuing of a termination order and that in those circumstances, the section is mandatory": at [41]. She noted, that the termination order need not take effect immediately, stating at [42]: "The terms of ss 91(3) and 91(5) do give the CTTT a limited discretion, namely as to whether or not the order should be immediate and (in circumstances not relevant here, since this is not a fixed term [tenancy]) what should happen in relation to such orders where fixed term tenancies have not yet expired." 14The word "may", "if used to confer a power, indicates that the power may be exercised or not, at discretion": Interpretation Act 1987 (NSW), s 9(1). Nevertheless, such a power can, in particular circumstances, be coupled with a duty to exercise the power: Ward v Williams [1955] HCA 4; 92 CLR 496. The District Court held that s 91(1)(a) conferred a power coupled with a duty, with the result that the Tribunal had no discretion to decline to make the order sought once satisfied that the power was engaged. 15The primary judge described the applicant's interpretation, namely that s 91 involved a discretionary power, as "novel": at [18]. There is, however, no authority against that construction and the correct course is to ask why what is, on its face, a discretionary power should be construed otherwise: Ward v Williams at 505-506. 16The Housing Corporation (and the primary judge) found support for the conclusion that a termination order was mandatory once the condition in paragraph (a) of s 91(1) had been engaged, first, internally (that is within s 91) and, secondly, contextually, that is by reference to the statutory scheme allowing for termination by a landlord, in Pt 5, Div 2 of the Residential Tenancies Act. 17The internal support was derived from the separate operation of paragraphs (a) and (b) in s 91(1). Paragraph (b), permitting a termination order based on the use of the premises for "any other unlawful purpose ... sufficient to justify the termination" involves an evaluative standard with respect to which, it was submitted, the range of factors referred to in sub-s (2) was appropriate. By contrast, the submission continued, the offences identified in paragraph (a) were statutorily deemed to be sufficient to justify termination, leaving no room for the exercise of a discretion, once the identified use was established. That was why the considerations identified in sub-s (2) did not operate with respect to paragraph (a), but only paragraph (b). 18In principle, "may" followed by a list of grounds could operate differentially as between them: Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 at [71] (Gaudron, Gummow and Callinan JJ). Nevertheless, such a conclusion is unlikely and was not countenanced by Gleeson CJ and McHugh J in the same case: Samad at [37]. The Housing Corporation eschewed such a result. It submitted that once a use has been held to be "sufficient to justify the termination" under paragraph (b), there is no discretion to decline to make a termination order. Thus when the preconditions for the exercise of the power are satisfied, there is a duty on the Tribunal to make the order sought. 19This approach is plausible but unacceptable, because it fails to apply the actual language used in sub-s (2). Thus, the factors identified in sub-s (2) are said to be relevant, not to determining whether the use is sufficient to justify termination, but in considering "whether to make a termination order". Subsection (2) assumes that, even if the use is sufficient to justify termination, an order need not necessarily be made. If "may" is not to operate differentially, there must also be a discretion in respect of paragraph (a). 20No doubt it is curious that the Legislature identified factors with respect to the exercise of the power only where paragraph (b) was engaged, but the terms of the section do not warrant a rewriting of sub s (2). It cannot be said that it is clear that Parliament intended a particular different outcome: cf R v Young [1999] NSWCCA 166; 46 NSWLR 681 at [5]-[9] (Spigelman CJ); Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 at [50]-[53] (Beazley JA), and at [90]-[92] (in my judgment). 21There is a further difficulty within s 91. There is a temporal discretion implicit in sub-s (3). If the Tribunal may specify that an order for possession takes effect immediately, it may also delay the effect of the order. Indeed, the latter is the expected or assumed position, at least in relation to so much of the order as requires delivery up of possession. But how long may the Tribunal delay the effect of a termination order? If there be an unlimited power to delay an order taking effect, it is difficult to see why there should be no discretion to decline to make an order at all. Further, the discretion of the Tribunal in this respect would appear to be inconsistent with the proposition that s 91 is distinguished from other provisions by providing a "fast track" and certain means for a landlord to determine a tenancy. 22Support for the 'power coupled with a duty' construction was also based on contextual considerations, namely the operation of s 91 within the scheme of some 10 other provisions permitting termination by a landlord in different circumstances. The Housing Corporation relied on the fact that use of the premises for any illegal purpose is a breach of a residential tenancy agreement, which will contain a statutory prohibition to that effect: s 51(1)(a) and (5). Accordingly, in any case covered by s 91 the landlord could give a termination notice based on a breach of the agreement under s 87 and, in the event that the tenant does not vacate, seek a termination order from the Tribunal. In order to obtain such an order, the landlord must satisfy the Tribunal that there had been a breach and that the breach was, in the circumstances of the case, sufficient to justify termination: s 87(4). To that extent, s 87 is reflected in s 91(1)(b). The main difference is the requirement to give a termination notice as a precondition to obtaining an order under s 87: cf s 91(4). The notice must allow the tenant a period of not less than 14 days to vacate: accordingly, the absence of such an element from s 91, it was submitted, demonstrated that the latter section was intended to be a "fast track" provision to achieve the same end. 23The crux of this submission is that where two powers are available, they should not be construed as covering exactly the same ground. That may be accepted as a working hypothesis; but it does not take the matter very far in this case. The fact that s 87 involves the giving of a termination notice is a point of distinction. It may make the use of s 91 more attractive to a landlord, but it provides no firm basis for concluding that the Tribunal empowered to make an order under s 91 has no discretion to decline to do so once the circumstances engaging the power are established, whereas under s 87 such a discretion is conceded. 24On the contrary, where the statute uses the same terminology in various provisions, it will usually (though not necessarily) be appropriate to give it the same meaning in each case. Both ss 87 and 91 confer a power on the Tribunal by use of the word "may": a clear reason must be established to conclude that in one situation the Tribunal has a discretion, but in another it does not. 25The difference in effect between "may" and "must" (or "shall", being the term identified as imposing a duty in s 9(2) of the Interpretation Act) does not depend upon the existence of s 9 of the Interpretation Act; it is an element of ordinary English usage. Nor did the distinction escape the drafter of the Residential Tenancies Act, which uses the language of power and the language of obligation with, to all appearances, deliberate precision: cf the use of "must" in ss 84(3) and 85(3). There is nothing in the surrounding provisions which require a strained construction of s 91.

Conclusion as to power 26Whether the Tribunal had power to decline to make an order once the preconditions to the exercise of a statutory power were established was a question of law and, in all probability, a jurisdictional question: the answer was not said to depend on the facts. The answer given by the District Court was erroneous. The order made by the Tribunal should not have been set aside on this ground. 27It remains to consider whether the Tribunal took into account irrelevant matters in the exercise of its discretion.

Taking irrelevant matters into account 28Although the primary basis upon which the District Court overturned the orders in the Tribunal depended on the construction of s 91 considered above, it also determined that the Housing Corporation was entitled to succeed because the Tribunal improperly took into account two critical matters in exercising its discretion in favour of the tenant. However, the language in which the errors were identified was somewhat unclear. 29Broadly speaking, factors which a court or tribunal takes into account may be characterised as mandatory, permissible or prohibited. The Tribunal having been held not to have any discretion to refuse to make a termination order, no question arose as to a failure to take into account mandatory considerations, although such an error would have been an error of law. Having found that the Tribunal had no discretion, it is arguable that the District Court identified particular factors as irrelevant, in the sense of prohibited considerations. At [46] the Court said: "I first note that it appears from the transcript that the Tribunal was led into error by reason of the parties mistakenly addressing as to the matters specified in s 152(1) .... As a result, the CTTT had regard to a number of subjective considerations concerning the defendant and was influenced by what was said as to the approach being taken by the District Court to the defendant's sentencing proceedings. Whether or not the provisions of s 91(1)(a) permit the exercise of any discretion, this was of itself a legal error. However, the legal error goes much further than being a consideration of factors under s 152(1). The list of factors in s 152(1) [does] not include a consideration of the tenant's financial hardship or the fact that the tenant is on a disability pension." 30Section 152 of the Residential Tenancies Act provides: 152 Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act. 31It is not necessary to determine whether s 152 operated in the present case: it is expressed to impose an obligation on the Tribunal when considering whether to terminate "a social housing tenancy agreement", "on the ground of a breach by the tenant". The Housing Corporation is a "social housing provider" and the tenancy agreement in the present case was, therefore, a "social housing tenancy agreement", as defined in s 136. However, it is at least arguable that s 152 only applies where the landlord relies upon the conduct of the tenant as constituting a breach of the agreement (under, for example, s 87) as opposed to an application under s 91, which relies on conduct falling within the scope of that section which would be, but is not specified as, a breach of a tenancy agreement. The reason it is not necessary to determine the question is twofold. First, although the Tribunal recorded an agreement between the parties that the tenant "has breached the residential tenancy agreement" and that both advocates had referred to s 152, it is not clear that the Tribunal purported to apply the provisions of s 152. Secondly, if the Tribunal did apply s 152, there is no complaint that it failed to have regard to the mandatory considerations set out in sub-s (1) and, as sub-s (2) makes clear, the section imposes no constraint on the factors at which the Tribunal may look. 32Although the judgment identified two matters as "not relevant", arguably it treated them as possibly permissible, but used in an impermissible way. Whether or not that would constitute an error of law (albeit within jurisdiction) would require further analysis. 33The first matter identified as erroneous was the statement of the Tribunal that "there are significant factors in the personal history of the [tenant], which are supported by the medical evidence supplied, for which she should be granted some consideration". The Housing Corporation identified those matters as "presumably a history of drug dependence, and various medical and mental health issues". The medical issues included the back pain for which the applicant said she used cannabis, but also two brain aneurisms for which she was being treated. The submission contended that those matters: "... are not relevant to the decision under s 91(1), at least not as matters for which the applicant ought merely be 'granted some consideration'. They could only become relevant to the exercise of a discretion under s 91(1) to the extent that they explain or mitigate the circumstances giving rise to the application for a termination order, or to the extent that they indicate the effect of the order sought on the applicant. The Tribunal did not suggest that those considerations were relevant for either of those purposes; rather, simply holding that they were to the applicant's advantage in the balance for some unspecified reason." 34The fact that they were permissible considerations in two ways suggests that the Tribunal was entitled to take them into account and that the alleged error lay in the failure to identify precisely how they were taken into account. 35Although the Court does not have the notice of appeal to the District Court, there was no suggestion that one of the grounds of challenge to the decision of the Tribunal was the inadequacy of its reasons. It is, in any event, tolerably clear that the six factors identified by the Tribunal, of which four favoured an exercise of discretion in the tenant's favour, were used in precisely the manner identified. Reference to such factors by the Tribunal did not demonstrate error of law. 36The second factor identified, and the manner in which it was said to constitute error are best revealed by repeating the whole of the passage in the District Court judgment relating to this issue: "[48] In addition, the ability of the defendant to take part in the sentencing exercise by the District Court in its criminal jurisdiction is a matter for that court to tailor its programme to take account of changes in the defendant's place of occupation. The fact that such orders are in place does not bar the Tribunal from exercising its functions in accordance with the Act, or require the Tribunal to make orders of a specific performance nature in order to fit in with that rehabilitation programme. [49] Further, the exercise of the discretion was in error because it was based on inferences that were no more than a surmise. The highest that the Tribunal Member could put the impact of termination upon the defendant was that such an order 'may' impact upon her ability to receive medical treatment and attend rehabilitation programmes. Counsel for the defendant submits that the Tribunal Member was entitled to infer that the defendant would be homeless and unable to find other accommodation, but the Tribunal member notes facts to the contrary in his own judgment." 37What the Tribunal actually said in respect of these issues was as follows: "· The respondent has given undertakings to the District Court on rehabilitation and she should be given the opportunity to demonstrate to the court that she can rehabilitate herself and not rely on cannabis for relief of her backpain. · The termination of the tenancy may hinder the respondent tenant in completing the medical treatment and rehabilitation programs. The Tribunal takes guidance from the District Court and makes orders for specific performance that that respondent comply with the Residential Tenancy Agreement with the provision to re-list the matter if the respondent fails to comply with such orders." 38The submissions for the Housing Corporation stated that "in the absence of a finding (on the balance of probabilities) that the termination of the tenancy would hinder the applicant in the respects identified, the Tribunal did no more than identify a theoretical possibility", such a possibility not being a "relevant consideration". 39This submission is not to be accepted. The reference by the primary judge to a "surmise" may properly be understood as a reference to an inference drawn by the Tribunal, but not made out on the balance of probabilities. However, there is no basis for concluding that the Tribunal must disregard future events unless satisfied on the balance of probabilities that they will occur. (No sentencing judge could ever take prospects of rehabilitation into account if that approach were mandatory: it would require a clear statutory provision to have that effect.) Assuming that the Tribunal had power to decline to make a termination order, there is no basis for reading the statute as excluding either the personal history of the respondent, the nature of the offending, the sentencing in the District Court for the offence, the possibility of repetition in the future or the likely effect of the termination order on the tenant's health and medical treatment. 40No error of law on the part of the Tribunal was identified in respect of either of the considerations referred to in its reasons and relied upon in the District Court.

Orders 41The order of the District Court setting aside the decision of the Tribunal was erroneous, the errors of law being apparent from the reasons given by the Court. The operation of the orders was stayed by consent; that stay will automatically cease to operate upon the order of this Court setting aside the orders below. There are, the Court was informed, no outstanding issues raised on the appeal but unresolved in the District Court: there is therefore no need to remit the matter for further hearing. The orders in the Tribunal are effective in their terms. Neither party sought costs here or in the District Court. 42This Court should uphold the application for review and make the following orders: (1) Set aside orders 1-5 made in the District Court on 23 May 2013. (2) In lieu thereof, dismiss the appeal from the decision of the Consumer, Trader and Tenancy Tribunal. 43GLEESON JA: I agree with the reasons of Basten JA and the orders proposed by his Honour. I also agree with the reasons of Leeming JA. 44LEEMING JA: I agree with the orders proposed by Basten JA and the entirety of his Honour's reasons. I add the following merely by way of elaboration on the principal point of construction, in deference to the quality of the parties' submissions. 45The construction of s 91(1) favoured by the primary judge displaces the ordinary meaning of "may". That ordinary meaning is confirmed by s 9 of the Interpretation Act 1987 (NSW). Accordingly, it is necessary to discern a contrary intention: s 5(2). In accordance with ordinary principles of statutory construction, a contrary intention may be discerned from the text or the context (which may include the legislative purpose: see for example Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9; 232 CLR 314 at [19]). There is no simple formula for discerning a contrary intention: Deputy Commissioner of Taxation (NSW) v Mutton (1988) 79 ALR 509 at 512 (Mahoney JA). 46The text of s 91 is an unpromising starting point for discerning a contrary intention. It is plain that "may" where used in precisely the same context in s 91(5) bears its ordinary meaning connoting a discretion. 47The respondent's main point on the text of s 91 was that s 91(1)(b) confers an evaluative discretionary judgment ("sufficient to justify the termination") such that there would be no occasion for a further exercise of discretion. That has some force, but it is far from compelling. A natural meaning of s 91(1)(b) is that the Tribunal must first be satisfied that there has been sufficiently serious unlawful use to engage power to make a termination order without necessarily first giving a termination notice. If so, the Tribunal may then have regard to more general considerations in the exercise of the discretion to make the order. That accords with the terms of s 91(2), as Basten JA observes. 48Section 91 is to be construed "so that it is consistent with the language and purpose of all the provisions of the statute": Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131 at [24] (original emphasis, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]). The power in s 91 is therefore to be read with the other powers conferred in Division 2. Division 2 is headed "Termination by Landlord" and comprises 12 sections identifying the circumstances when a termination order issues from the Tribunal. The first two sections (ss 84(3) and 85(3)) commence "The Tribunal must, on the application by a landlord, make a termination order if ..." and are followed by nine provisions in the form "The Tribunal may, on the application by a landlord, make a termination order if ..." (ss 86(4), 87(4), 89(5), 90(1), 91(1), 92(1), 93(1), 94(1), 95(3)) (emphasis added). 49The change in language from "must" to "may" is a remarkable feature of the structure of the Division. It is a large task to disregard the prima facie purposeful shift in language between the first two and the last nine conferrals of power. 50The respondent sought to meet this by pointing to s 94, which provides that the Tribunal may, on the application by a landlord, make a termination order where a tenant (a) has been in possession for a period of at least twenty years, (b) is holding over, and "(c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case". It was said that if the discretionary language of paragraph (c) were satisfied, there could be no further discretion remaining. That is so. However, accepting as I think it must be that this is a case where there is superfluous language, a consistent legal meaning is achieved by regarding the words of (c) as confirmatory of the discretion, rather than reading "may" as "must". 51Language such as that in s 94 is not unusual. For example, it is seen in s 14 of the Civil Procedure Act 2005, which provides that "the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case." It could not be suggested that "may" in s 14 is other than discretionary; the language is an instance of what Nourse LJ called an "emphasis of the obvious": Omar Parks Ltd v Elkington [1992] 1 WLR 1270 at 1273. The respondent's submission based on s 94 recalls that rejected in Omar Parks: "If a long experience of legislative drafting had brought with it a conviction that an Act of Parliament never included words of surplusage, that would no doubt have been a persuasive point. But that is not our experience ..." 52At the level of purpose, the primary judge relied upon the consideration that s 91 provided a "fast track" mechanism for terminating residential tenancy agreements and recovering possession. That may be acknowledged, but it does not assist. Where s 91 applies, the ordinary step of first serving a termination notice (which is required for termination under ss 84, 85, 86, 87 and 88) may be bypassed, and plainly enough, that effectuates the legislative purpose. A general legislative purpose that the power be exercised promptly is too general a consideration to answer the much narrower question whether the ordinary meaning of "may" in s 91 has been displaced by a contrary intention. (The same reasoning may be seen in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [53].) 53Finally, the respondent's construction leads to results which are fairly described as "absurd" or "irrational" or "unjust", to use the language in Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 87 ALJR 985 at [48]. A tenant who takes a holiday or is hospitalised may permit a relative to occupy the premises. If that relative's spouse supplies a prohibited drug on the premises, even if the tenant is completely unaware and has no reason to suspect, then the landlord can, according to the respondent, compel the Tribunal to make a termination order. Considerations of that nature confirm, to my mind, that there is no sound basis to discern a contrary intention so as to displace the ordinary meaning of "may".

Amendments 03 October 2014 - The word "a" has been added to the quote from Omar Parks Ltd v Elkington, so that it now reads "If a long experience..." Amended paragraphs: 51 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2014

Civil and Administrative Legislation (Repeal and Amendment) Act 2013(NSW)

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

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