Statement of Facts
1. The Applicant is a corporation sole established by the Housing
Assistance Act 1987 whose functions are set out in s.8 of that Act.
2.The Respondent is 21 years of age and, with her 4 year old
daughter, occupies a two bedroom flat leased to her by the Applicant
pursuant to the Applicant's powers contained in s.9 of the Housing
Assistance Act 1987.
3. Under the lease agreement the Respondent was required to pay a
rent of $148.50 per fortnight. The Applicant rebated this amount by
$92.00 per fortnight and thus the Respondent was to pay a net rent
of $56.50 per fortnight.
4. The Respondent currently receives the Sole Parent Pension and
$312.00 per month by way of Child Maintenance payments. Her total
income including Additional Family Payment is $632.65 per fortnight.
5. As of the 12 December 1993 the Respondent had accumulated rent
arrears amounting to $1328.80. The Applicant decided to terminate
her tenancy but took no action to evict her at that stage.
6. The Respondent appealed the decision to terminate the lease to
the Housing Review Committee of the Applicant, an administrative
review body established by the Applicant.
7. The Housing Review Committee recommended that the Applicant not
proceed to an eviction on condition the Respondent make certain
regular payments of rent and arrears to the Applicant.
8. The Respondent defaulted on the condition and, pursuant to s.3 of
the Recovery of Lands Act 1929 ("the Act"), the Applicant determined
her lease. On 2 March 1994 the Respondent was served with a Notice
of Determination of her lease in the form of Form A of the Schedule
to the Act and in compliance with s.3 of the Act. The notice
required her to deliver up possession of the subject land before
17 March 1994.
9. On 17 March 1994 the Respondent was served with a notice in the
form of Form D of the Schedule to the Act notifying her that unless
she delivered up possession of the subject land before 29 March 1994
the Applicant would apply to the Magistrates Court for the issue of
a warrant under s.4 of the Act.
10. The hearing of the Applicant's application for the issue of a
warrant commenced on 10 May 1994. Evidence was taken and some
submissions made on that day.
11. The evidence presented on behalf of the Applicant established
that all the requirements of s.4 of the Act had been satisfied and
that, subject to the issue of discretion raised in this Case Stated,
the Applicant was entitled to the order sought.
12. The Respondent gave evidence in her own case. She stated that
her rent defaults were largely due to her overspending because of a
serious and long-standing gambling habit. She further stated she
had made concerted efforts to cease gambling and had not gambled for
some 4 months prior to the hearing. She also stated that prior to
the hearing she was pregnant, but later the pregnancy miscarried.
At the time of miscarriage she was over 5 months pregnant. The
Respondent said her failure to comply with the condition of the
Housing Review Committee was due to her inability to cope with the
event and sequel of the miscarriage.
13. The Respondent gave evidence that prior to the hearing she had
arranged with her bank to make direct debits from her account to the
Applicant's account for rent and arrears payments. Further, that
she was taking steps to collect a substantial amount of arrears of
maintenance payments from the father of her child. The Child
Support Agency would not assist in the matter, but she was
consulting the Legal Aid Office with a view to obtaining its
assistance in recovering the arrears in the Magistrates Court. She
also stated that if successful in collecting the arrears she would
use the money to satisfy her debt to the Applicant.
14. The Respondent gave evidence to the effect that her
accommodation options were extremely limited. She stated she could
not afford private rental accommodation; that her mother and
stepfather lived in Canberra, but she could not live with them due
to a history of extreme violence suffered by her at the hands of her
stepfather; and that she had no other relatives or friends in the
Australian Capital Territory with whom she could reside.
Argument by Counsel
15. It was argued by Counsel for the Respondent that, under s.4 of
the Act, a Magistrate has a discretion to issue a warrant. Also,
that in the exercise of that discretion the Court may take into
account factors which may mitigate the tenant's failure to comply
with lease covenants. And further, that it was relevant to take
into account the consequences, viz. any hardship to the tenant as a
result of the issuing of a warrant.
16. Counsel for the Respondent argued that a refusal to issue a
warrant would give rise to a statutory tenancy in favour of the
Respondent.
17. The reply by Counsel for the Applicant was that, if s.4 confers
a discretion, it is limited to the scope, object and purpose of the
Act; that the mitigating factors raised by Counsel for the
Respondent are not relevant to the exercise of the discretion; and
that the refusal to issue a warrant would not give rise to a
statutory tenancy, but would render the Respondent a trespasser.
18. Prior to hearing final submissions I indicated to Counsel that I
saw significant uncertainty in the legislation regarding the
existence of a discretion, the method of its exercise if it exists
and the consequences of its exercise in favour of the Respondent.
19. Pursuant to s.192 of the Magistrates Court (Civil Jurisdiction)
Act 1982, the Respondent has requested this Court to state a special
case for the opinion of the Supreme Court. I have acceded to this
request.
Case Stated
The following questions are asked:
1. Does s.4 of the Recovery of Lands Act 1929 confer a discretion
upon a Magistrate, to be exercised in the circumstances of the
particular case, to issue or refuse to issue a warrant therein
described?
2. If a discretion is conferred upon a Magistrate by s.4 of the
Recovery of Lands Act 1929 can the following factors be taken into
account in the exercise of that discretion:
a. Any hardship which would be caused to the lessee or any other
person by the issue of a warrant?
b. Whether any reasonably suitable alternative accommodation in lieu
of the subject land is, or has been since the date upon which the
subject lease was determined, available for the occupation of the
lessee?
c. Conduct of the lessee, including but not limited to:
i) The breach of any lease covenant?
ii) The breach of undertakings given by the lessee to the
Commissioner for Housing to maintain the payment of rent payable
pursuant to the subject lease and to make payments in reduction of
rental arrears that have arisen under that lease?
iii) Disturbance by the lessee of the amenity of neighbouring
householders and the environs surrounding the leased premises?
iv) Any steps taken by the lessee to remedy any breaches by him or
her of lease covenants?
d. Demand for accommodation held by, and under the control of, the
Commissioner for Housing, pursuant to the provisions of the Housing
Assistance Act 1987, by persons eligible to lease such accommodation
from the Commissioner for Housing?
e. The policies stated or inherent in any applicable housing
assistance program prepared by the Commissioner for Housing, and
approved by the Minister, pursuant to s.12 of the Housing Assistance
Act 1987?
3. Does a refusal by Magistrate to issue a warrant applied for under
s.4 of the Recovery of Lands Act 1929, in circumstances where the
subject lease has been validly determined pursuant to s.3 of that
Act, create a statutory tenancy and, if so, what is the source and
terms of the statutory tenancy?