Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52

3. On 7 November 1995, the appellant was convicted in the Supreme Court of the Australian Capital Territory of the murder of Colin Winchester and sentenced to life imprisonment. The following summary of curial and other proceedings in consequence of that conviction is taken from the reasons for judgment of Gray J in Eastman v Minister for Corrective Services [2004] ACTSC 33; (2004) 181 FLR 447 at [2];

`... His appeal against [the conviction] _was dismissed by the Full Court of the Federal Court on 25 June 1997 (_R v Eastman _(1997) 76 FCR 9). His application for special leave to appeal to the High Court from that decision was granted, however, his appeal to that Court was dismissed on 25 May 2000 (_Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1). An issue considered by some of the Justices of the Court was that of the question of the applicant's fitness to plead at his trial. By letter dated 31 May 2001, the applicant first sought an inquiry under s 475 of the Crimes Act 1900 (ACT). On 7 August 2001, the then Chief Justice of this Court, Jeffrey Allan Miles, in his capacity as a judge of the Court directed, pursuant to s 475 of the Crimes Act 1900 (ACT), an inquiry into the matter of the fitness to plead of the applicant during the whole or any part of his trial for the murder of Colin Winchester. In matters SC110/2002 and SC174/2002 the applicant took proceedings under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR Act) seeking to review the actions of Miles CJ with a view to having the terms of the inquiry widened into other matters.'

4. It appears that the Commissioner had made an earlier decision to terminate the appellant's tenancy of the premises. That decision was the subject of an appeal to the ACT Housing Review Committee ("the Committee"). The appellant had invoked the powers conferred on the Committee by the Public Rental Housing Assistance Program ("the Program") made by the Commissioner pursuant to subs 12(1) and (2) of the Housing Assistance Act 1987 which provides;

`(1) For this Act, the commissioner may, in writing, prepare a housing assistance program (a program).

Note Power given under an Act to make a statutory instrument (including a program) includes power to amend or repeal the instrument (see Legislation Act 2001, s 46(1)).

(2) A program may provide for--

(a) the housing agreement to apply to it; and

(b) the commissioner to determine, in writing, fees payable under the program; and

(c) the reconsideration of stated decisions of the commissioner; and

(d) application to be made to the administrative appeals tribunal for review of stated decisions of the commissioner under the program.'

5. Clauses 20 to 23 inclusive of the Program provided, so far as is relevant;

`20. (1) Where the Commissioner makes a decision:

... ...

(e) upon review that a tenant is not eligible for continued assistance under this Program

... ...

he or she must, within twenty-eight days after the date of the decision cause notice in writing of the decision to be given to the applicant.

(2) A notice must include a statement to the effect that the applicant may within twenty-eight days of service of the notice on the applicant lodge an objection in writing with the Commissioner.

(3) Any decision by the Commissioner to terminate a tenancy granted under this program on any ground which is lawfully available in relation to that tenancy, and any action by the Commissioner in pursuance of such a decision, is not a decision on an application for the purpose of this clause or clause 21.

21. (1) A person who is dissatisfied with a decision by the Commissioner on an application may lodge with the Commissioner a written objection within twenty-eight days after notice of the decision is served on the person.

(2) An objection must state fully and in detail the grounds on which it is made.

(3) The Commissioner shall refer to the Housing Review Committee for reconsideration an objection which he or she has decided not to uphold, or an application for the consideration of a late objection which he or she has decided to refuse, and may accept, reject or vary the recommendation of the Housing Review Committee.

(4) The Commissioner must give the objector written notice of his or her decision on an objection.

(5) For the purpose of subclause 21(1), "application" is deemed to include:

(a) a decision to transfer a tenant under paragraph 18(4)(b) or subclause 18(6); and

(b) a decision upon review that a tenant is not eligible for continued assistance.

(6) A person who is dissatisfied with a new dwelling being offered following a decision by the Commissioner under subclause 18(5) may lodge an objection in accordance with subclause (1).

22. (1) If the period within which a person may lodge an objection has ended, the person may nevertheless send an objection to the Commissioner with a written application to treat the objection as having been duly lodged.

(2) An application must state fully and in detail the reasons for the person's failure to lodge the objection within that period.

(3) The Commissioner shall refer to the Housing Review Committee for reconsideration an objection which he or she has decided not to uphold, or an application for the consideration of a late objection which he or she has decided to refuse, and may accept, reject or vary the recommendation of the Housing Review Committee.

(4) The Commissioner must give the applicant written notice of his or her decision on an application.

(5) If the Commissioner grants an application, the objection to which the applicant relates must be treated as having been duly lodged.

23. Application may be made to the Administrative Appeals Tribunal for a review of a decision by the Commissioner:

(a) disallowing an objection; or

(b) refusing an application under subclause 22(1).'

6. Despite the exclusion in cl 20(3) of the Program of any right to object to a decision of the Commissioner to terminate a tenancy and any power in the Committee to reconsider such an objection, the Commissioner apparently referred to the Committee his decision to terminate the appellant's tenancy of the premises. The Committee met on 27 July 2000 when it received submissions from Mr Collaery, the solicitor then acting for the appellant. Those submissions were summarised as follows in the Committee's report:

`Mr Collaery advised the committee that following Mr Eastman's recent appeal to the High Court there was a `persuasive case' developing to seek a judicial inquiry into aspects of Mr Eastman's original trial.

He said that

* an application for a judicial inquiry had already been made to the ACT Supreme Court

* a national law firm was involved in developing the next step, a submission to the Court, probably on a `pro bono' basis

* other solicitors were available to assist and/or takeover the submission if the firm concerned was not prepared to proceed on this basis

* there was also widespread national interest in the submission proceeding

* there was about three months ground work involved in developing this submission

* if successful, it was likely that a further three months would elapse before a judicial inquiry would be completed and a decision announced

* this was not a long period to wait for a final outcome from the appeals process

* Mr Eastman should be given the opportunity to retain the flat until this process was completed

* Mr Eastman's parents were deceased and he had no other family support available to him

* consequently, the flat was his only link to normality and, given his mental state, was of huge importance to his life

* removal of the flat from him at this time was likely to result in him becoming profoundly depressed and (based on Mr Collaery's knowledge of Mr Eastman's past experiences) possibly suicidal.'

7. The Committee's recommendation and the reasons for it were expressed as follows:

`The Committee recommends that the appeal against termination of tenancy be upheld.

The Committee further recommends that Mr Eastman continue to

* retain his existing tenancy until such time as it is known if a judicial inquiry will proceed, and if it does proceed, until its outcome is known

* be charged a rebated rental despite his stated wish to pay full market rental

REASON FOR RECOMMENDATION:

The committee acknowledges that

* this is a very sensitive issue from a number of aspects, not the least of which is the public perception of the lack of availability of Mr Eastman's flat for others on the waiting list and the fact that there are people waiting for allocation of a dwelling such as his

* the Minister has stated his concern that the flat has been unoccupied for a long time and there is a possibility that it will continue to be remain unoccupied for a further period

* the possibility of a further appeal right from a judicial inquiry after the High Court proceedings was completely unexpected

* ACT Housing had given an undertaking that Mr Eastman would retain his flat while he pursued his appeal rights

* Mr Eastman's continued tenure of his flat is likely to be critical to his state of mental health.

Given all of the above, the committee is persuaded that

* the ongoing stability of Mr Eastman's mental health may be very much dependent on maintaining tenure of his flat

* the appeal process is not yet exhausted and until it is, by the success or failure of a judicial inquiry, Mr Eastman should be allowed to maintain his tenancy at a rebated rental

* the process has gone this far and ought, on the grounds of natural justice, be allowed to proceed to the completion of the judicial inquiry before any further review.

8. In the light of that recommendation, a delegate of the Commissioner, Ms Bernadette Maher, on 5 September 2000 wrote to the appellant a letter which, omitting formal parts, was in these terms;

`The Housing Review Committee considered your appeal against ACT Housing's decision to terminate your tenancy at 20 Jerilderie Court Reid on 27 July 2000. As you are aware Mr Collaery represented you at the hearing.

After careful consideration of your case, the Committee recommended to me that your appeal be upheld.

I have agreed with the recommendation and approved for you to retain your tenancy of 20 Jerilderie Court Reid until such time as the ACT Government has made a decision on your application for a judicial review.

Once the decision on your application for a judicial review has been made, your tenancy rights will be reviewed.'

9. Subsequently, on 1 May 2001 the Commissioner gave the appellant notice to vacate the premises on or before 1 November 2001. That prompted Mr Collaery to write the following letter (omitting formal parts):

`We act for David Harold Eastman and have to hand a purported Notice to Vacate dated 1 May 2001.

We are instructed to seek a review of the decision to terminate our client's tenancy of the premises on the following grounds:

a. Estoppel by virtue of an undertaking given on behalf of the ACT Government by Ms Bernadette Maher.

b. The decision is oppressive.

c. The decision is unreasonable given the circumstances.

d. There has been no breach of the prescribed terms or of the covenants express and implied.

It is proposed to amplify these grounds in further correspondence. Please acknowledge receipt of this facsimile.'

10. As a result of Mr Collaery's letter, Mr Hutchinson, the Executive Director, ACT Housing, made a file note in these terms:

`I have reviewed the David Eastman file and Bernard Collaery's letter of 8 May 2001 and have determined that the decision to terminate Mr Eastman's tenancy should stand. I refer to Mr Collaery's letter at folio 238, and I am of the view that in relation to the points raised in that letter that:

Point (a) Ms Bernadette Maher undertaking has been expunged by the advice I have received no formal application for a judicial inquiry has been received by the Executive and that a reasonable time has elapsed for the lodgement of such an application.

Point (b & c) are subjective

Point (d) Residential Tenancies Tribunal will make that decision.'

11. Accordingly, on the same date Mr Hutchinson wrote this letter in reply to Mr Collaery:

`Thank you for your letter of 8 May 2001 regarding a request for a review of the decision to terminate Mr David Eastman's tenancy. I apologise for the delay in responding.

I have reviewed Mr Eastman's file and have considered the contents of your letter of 8 May 2001 and have determined that the decision to terminate Mr Eastman's tenancy should stand.

The case will now be referred to the Residential Tenancy Tribunal for a hearing date.

I am sorry I cannot be of more assistance to you in this matter.'

12. By application dated 6 November 2001, the Commissioner applied to the Tribunal for a termination and possession order in respect of the premises. It seems that a copy of that application and a hearing notice nominating 26 November 2001 as the date of a hearing before the Tribunal was served by post addressed to the appellant at "MMTC, Locked Bag 24 Matraville, NSW 2036". However, the appellant had, before the documents were served, been transferred to the Goulburn Correctional Centre and he did not receive them until 16 November 2001, when he wrote this letter to the Registrar of the Tribunal:

`Your letter of 9-11-01 was not received by me till today, due to it being wrongly addressed to the MMTC in Sydney.

Please note that, like any other Inmate, I am subject to frequent moves, with no notice. It is your responsibility to check my location before posting any letter. Allow 10 days for delivery even if posted to the correct jail. Bill Aldcroft is not my agent - please do not give letters to him in future - send direct to me. If urgent contact is needed, ring the Governor and ask that I be allowed to phone you back. I will do so in about 10 mins, if permitted. Do not sent faxes - they are frequently never received by me. This is the system here. I do not agree with it, but I cannot change it.

I request ADJOURNMENT of the hearing for 14 days, from 26-11-01 to 10-12-01_, on grounds that_

1. Documents supplied by Applicant are incomplete, viz Annexures A to E inclusive are missing from the "Statement of Particulars" sent to me.

2. I want to be represented, and cannot arrange and brief a lawyer by 26-11-01, bearing in mind the communication difficulties here. (I have been trying to get your ph. No put on my approved list, so I could phone you with this information, but have been told it may be 23-11-01 before the number is there).'

13. That letter was not received by the Tribunal until 23 November 2001. On the same date the appellant telephoned a Mr Thompson who sent this email to Mr Sean Egan, of the Tribunal's staff:

`This morning, I received a telephone call from David Harrold Eastman, an inmate of Goulburn jail. He advised me that he had just received a full set of the documents after initially not receiving the attachments in respect of Housings application of evict him from his government flat. He wishes to defend the application and is not in a position to do so himself next Monday, so therefore he has requested an adjournment for two weeks so he can obtain legal representation at any subsequent hearing.

In the alternative, if the presiding member is not in a position to grant his application for an adjournment, he requests that arrangements be put in place for him to appear via an audio or video link.

14. That communication was in fact brought to the attention of the presiding member and was discussed by her with Mr Christensen who appeared for the Commissioner at the outset of the hearing on 26 November at which, as I have said, the appellant was not present or represented. The presiding member is recorded as having said, in the course of that discussion:

`Now I have considered the option of an audio link up, but I'm told that inmates from Goulburn Jail are only entitled to a 5 minute phone call. And that has been the experience of the Tribunal staff that the phone simply cuts out after 5 minutes.

So I think the practical difficulties of getting Mr Eastman on line and then asking him to give his evidence in 5 minutes, given at this stage all he'd be asking for is an adjournment, it means that it was just too difficult. I have a letter from Mr Eastman [dated 16 November].'

15. There was then further discussion of the fact that the appellant and Mr Collaery knew, from 8 May 2001, that an application was "bound to be made" to the Tribunal and of the appellant's reliance on an estoppel said to arise from the matters set out at [6]-[8] above. The presiding member then made this ruling on what she had perceived as an application by the appellant for an adjournment:-

`So that in considering Mr Eastman's request for an adjournment, I decline the request for an adjournment on the following basis: (1) In relation to the argument that Mr Eastman had not received the documents, the Tribunal finds that Mr Eastman had sufficient notice of these proceedings, and amongst other things, I take into account the letter dated early May from Mr Eastman's legal representative to ACT Housing. And also that despite the absence of attachments A to E in the information that he received, I don't believe that that would have affected his ability to get legal advice. For one, their content doesn't actually raise a question of any legal issue. And secondly, it couldn't be argued that he needed to see them before he knew that, because they're described in the statement of particulars as being no more than documents which he probably already had copies of in any event, or which his legal representative had copies of.

In relation to the estoppel argument that was raised indirectly through the information actually filed by ACT Housing, but I refer to the letter dated 8 May from Mr Eastman's legal representative to ACT Housing. From the evidence that I have, Mr Eastman was never promised that the delay in proceedings would be indefinite. And certainly since September 2000 he and his legal representatives have been aware that there was a decision to review the question of his continuing tenancy after the judicial review application was decided.

And thirdly, that internal ACT Housing decisions in relation to tenancies are not a matter for this Tribunal to review, but for the Administrative Appeals Tribunal. And Mr Eastman would have been able to lodge an application for review with that body, either on 1 May 2001 when he received the notice to vacate, which is the date of the service of the notice to vacate, or on 1 June 2001 when ACT Housing replied to Bernard [Collaery's] letter.

So that for those reasons I don't see that there's any justification in waiting two more weeks in relation to this. And I take into account how long the matter has been going on. But before I would be of a mind to grant the application that ACT Housing has put, I need to be satisfied that the Act has been complied with absolutely to the letter.'

16. After further submissions from, and discussion with, Mr Christensen, the Tribunal ultimately made the orders set out at [1] above.

17. An appeal lies to this Court under s 126(1) of the Residential Tenancies Act 1997 (ACT) ("the Tenancies Act") from a decision of the Tribunal. That sub-section provides;

`(1) A party to a tribunal hearing may appeal to the Supreme Court on a question of law from a decision of the tribunal in that hearing.'

18. Mr Crowe SC, who appeared for the Commissioner on the hearing of the appeal, accepted that the Tribunal was required by s 121(1) of the Tenancies Act to have regard, in the performance of its functions, to the rules of natural justice. It was also accepted on behalf of the Commissioner that a failure to accord natural justice, as, for example, by failing to give a party a reasonable opportunity to be heard, is an error of law reviewable under s 126(1) of the Tenancies Act. In my view, there was such a failure in the present case, because the Tribunal had been alerted on Friday, 23 November 2001 that the appellant had only recently received the attachments to the notice of hearing and had not had time to obtain legal representation or arrange to appear in person or by audio link at the hearing fixed for the following Monday, 26 November.

19. Moreover, the Tribunal's refusal of an adjournment seems to have been actuated, at least in part by its apparently mistaken belief, recorded in the extract set out at [14] above, that the appellant's participation, otherwise than in person, could only be achieved by a single telephone call of a maximum of five minutes duration. On the other hand, the appellant asserted, and this was not disputed by Counsel for the Commissioner, that sophisticated audio and video link facilities are available at the Goulburn Correctional Centre and are frequently utilised for relatively lengthy hearings such as bail applications. Moreover, the Tribunal does not appear to have had regard to the mechanism afforded by s 6 of the Removal of Prisoners Act 1968 to procure the issue of a warrant requiring the appellant to be conveyed in custody to this Territory to facilitate the conduct of a hearing such as that before the Tribunal.

20. In these circumstances, I consider that the Tribunal's duty to accord procedural fairness to the appellant required it to grant the adjournment which he requested, at least to the limited extent necessary to explore the possibilities discussed in the last preceding paragraph of enabling the appellant to have some meaningful form of participation in the hearing. It is significant in this context that the Tribunal and the Commissioner's representative were aware that, at least in May 2001, Mr Collaery held a relevant retainer to act as Mr Eastman's solicitor. Despite that awareness it does not seem that any attempt was made to contact Mr Collaery before the Tribunal resolved to entertain the Commissioner's application ex parte. In these circumstances, I have been led to conclude that the refusal of even a limited adjournment was capable of resulting in a denial of natural justice to the appellant. Nor is there any suggestion that an adjournment would have resulted in an injustice to the Commissioner (see Maxwell v Keun [1928] 1 KB 645) or would have compromised the competing claims to a hearing by other litigants before the Tribunal; cp Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841.

21. Mr Crowe SC accepted that the considerations discussed at [18] to [20] above could warrant the setting aside of the Tribunal's orders of 26 November 2001. However, he contended that the Court should only take such a course if it were persuaded that, on a rehearing of the Commissioner's application, the Tribunal might reasonably have come to a different result; see Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 where Kirby J observed, at [48]-[50];

`[48] ...... it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are:

(1) that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and

(2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order [Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239; Rosing v Ben Shemesh [1960] VicRp 28; [1960] VR 173; Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Ltd [1984] 2 Qd R 447; cf Macquarie Bank Ltd v Beaconsfield [1992] VicRp 77; [1992] 2 VR 461].

[49] If no reasonable explanation is given for the default, it is not an injustice to deny the party in default a second opportunity to be heard. That opportunity is taken to have been waived or forfeited. Nowadays, the consideration of the reasonableness of an explanation will take into account the legitimate interests of any other party affected by the court's order (including any innocent third parties) as well as the general public. The interests at stake include a general respect for the finality of judicial orders [DJL v Central Authority [2000] HCA 17; (2000) 74 ALJR 706 at 724-725 [90]; [2000] HCA 17; 170 ALR 659 at 684] and for the efficient management of judicial proceedings that is consistent with their fundamental objectives, including the attainment of justice [Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 172].

[50] Similarly, there will be no miscarriage of justice if the party affected by the impugned order cannot demonstrate an arguable case that reopening the matter might reasonably produce a materially different result which is more favourable to that party. If the process by which that order is made is flawed, but it is not shown that the outcome might reasonably be materially different, the party offended by the process may be upset by a sense of procedural injustice. However, upon analysis, that feeling will not find reflection in the ultimate disposition of the rights and duties of the parties with which the law is finally concerned. Correction concentrates on any supposed error in the ultimate judicial orders and not exclusively on the procedures leading to, or reasons given for, those orders.'

22. I am satisfied that the appellant has provided a reasonable explanation for his failure to appear before the Tribunal on 26 November 2001. Part of that explanation lay in delays experienced in the delivery of mail to and from the Goulburn Correctional Centre. Another aspect of the appellant's failure to appear reflects the Tribunal's misapprehension about the extent to which audio or video links between the Goulburn Correction Centre and the Tribunal were available, and the extent to which the facility afforded by the Removal of Prisoners Act could be utilised to bring the appellant to this Territory.

23. Accordingly, it becomes necessary to consider whether, if the appellant had been given a reasonable opportunity to be heard, he would have had an arguable prospect of achieving a materially different result from that represented by the orders of 26 November 2001. The answer to that question turns principally on whether the Tribunal had a discretion to make any order other than one for termination and possession or to decline to make any order at all.

24. Section 47 of the Tenancies Act 1997 provides;

`(1) On application by a lessor, the tribunal may make a termination and possession order if satisfied that--

(a) a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and

(b) the lessor has served a termination notice on the tenant based on that ground; and

(c) the tenant has not vacated the premises as required by the termination notice.

(2) If--

(a) the tribunal makes an order under subsection (1); and

(b) the tribunal is satisfied that--

(i) were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and

(ii) that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period;

the tribunal may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.'

25. It is well-established that the words "may" and "shall" when used to introduce a power conferred on a body entrusted with discharging public functions frequently import a duty, rather than a discretion, to exercise the power. Thus in Julius v Bishop of Oxford [1880] 5 AC 214 Lord Blackburn observed, at 243 that the expression "shall be let out of prison" was an apt illustration:

`... of the rule that though giving a power is prima facie merely enabling the donee to act, and so may not inaccurately be said to be equivalent to saying he may act, yet if the object of giving the power is to enable the donee to effectuate a right, then it is the duty of the donee of the powers to exercise the power when those who have the right call upon him so to do. And this is equally the case where the power is given by the word "may," if the object be clear. Thus in the Public Health Act_, 1848 (11 &12 Vict. C. 63 s.89), the words are "The Local Board of Health_ may make rates prospectively, in order to raise money for the payment of future charges and expenses, or retrospectively, in order to raise money for the payment of charges and expenses which may have been incurred at any time within six months before the making of the rate;" yet on the application of a judgment creditor a mandamus will go to compel the making of a rate for the purpose of satisfying a judgment within six months after the judgment has been obtained; Rex v. Rotherham Local Board [1858] EngR 269; 8 El. & Bl. 906; Worthington v. Local Board of Moss Side Law Rep. 1 QB 63.' (original emphasis)

26. His Lordship then contrasted the result ordained by that rule of construction with the Act requiring interpretation in the case before the House as to which he said, at 247;

`... The Act is general. It allows prosecutions for immorality in which a parishioner is hardly more grieved than any neighbour. And it applies to clerks who have no preferment, and consequently can have no parishioners; and, if the bishop has no discretion, he must in every case act on the application of any party. I certainly cannot see any sufficient ground for saying that the object of the statute is such as to lead to the conclusion that the Legislature must have intended to oblige the bishop to exercise the power which, prima facie, he is entitled to refuse to exercise. And certainly, if discretion is to be entrusted to anyone, the bishop is the fittest person to whom to trust it. It is very true that bishops are but men, and being human may misuse any discretion entrusted to them; but so are Judges, and so are the parties who make a complaint. And it seems strange to say that the Legislature, which has not provided that there shall always be a prosecution, but has left that to the discretion of any one who likes to interfere, could not trust any discretion to a bishop, who, to say the least, is not more likely to err than any voluntary prosecutor.'

27. Similarly, in Commissioner for Housing v Smith [1995] ACTSC 17 (14 March 1995) Higgins J identified as follows at [15] to [17] a question of interpretation which was seen to arise under s 4 of the Recovery of Lands Act 1929 (ACT);

`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.'

28. Section 4 of the Recovery of Lands Act, which was in terms not dissimilar to s 47 of the Tenancies Act, provided:

`If, after a lease has been determined in pursuance of the last preceding section or otherwise, the lessee or any person apparently in occupation or possession of the land fails to deliver up possession thereof to the Territory within the time within which in the notice determining the lease, or, where the lease has been otherwise determined, in a notice in accordance with Form B in the Schedule to this Act, served on the lessee, the lessee is required to deliver up possession of the land, a magistrate sitting as the Magistrates Court, may, on the application of the Minister, or of any person acting in that behalf for the Minister, if in his opinion the lease has been lawfully determined, issue a warrant, in accordance with Form C in the Schedule to this Act, authorising any member of the Police Force, within a period of not more than thirty days after the date of the warrant, to enter on the land by force and with such assistance as is necessary and deliver possession thereof to the Territory.'

29. After acknowledging the proposition noted at [25] above that in certain statutory contexts "may" has been interpreted to mean "must" or "shall", Higgins J referred to several of the applicable authorities, and observed, at p 5, that, in Re Hassell (1984) 55 ALR 219, Toohey J had been -

`... particularly impressed in relation to relevant provisions of the Repatriation Act 1920 (Cth) that the word "shall" was used, in contrast to "may" in different contexts, thus supporting the view that "may" was intended to confer a discretion.

30. Similar guidance is afforded in the present case by various provisions of the Tenancy Act, referable to powers of the Tribunal including ss 7(a), 39, 40, 41, 42, 50(2) and 53(3) where "shall" is used with the obvious intent of imposing a duty on the Tribunal. Those provisions may be contrasted with others in the same Part of the Tenancies Act, including s 47 itself, where "may" is used with the equally apparent intention of importing a discretion; see eg ss 43, 45, 46, 48, 49 and 50(1).

31. Higgins J in Commissioner for Housing v Smith considered at p 7 that the issue which he had to resolve was put beyond doubt by s 26(3) of the Interpretation Act 1967 (ACT) ("the Interpretation Act"). That sub-section stipulates that;

`Where an Act provides, by using the word "may", that a person, court or body may do a particular act or thing, the act or thing may be done at the discretion of the person, court or body.'

32. After reviewing the legislative history and comparative and preparatory material bearing on s 26(3) of the Interpretation Act, his Honour continued, at p 8;

`The present form of the provision seems to me to support the view that whether or not s4 of the [Recovery of Lands] Act was enacted before or after 11 May 1989, it is to be interpreted as conferring a discretion upon a Magistrate empowered pursuant to its terms to issue an ejectment warrant to grant or refuse a warrant at his or her discretion.'

33. In the light of the authorities canvassed above and having regard to the range and variety of grounds for termination afforded by the prescribed terms in Schedule 1 to the Tenancies Act as founding a termination and possession order under s 47(1), I am unable to conclude with confidence, without the benefit of full argument on the point, that the Tribunal is bound to make such an order upon being satisfied of each of the matters enumerated in s 47(1)(a), (b) and (c). That is not to say that the discretion which the alternative construction allows to the Tribunal is unfettered. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, at 39;

`What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.'

34. Indeed, an example of a narrowly circumscribed discretion is to be found in s 47(2) itself where the discretion to alleviate hardship in the tenant is limited to suspending the termination and possession order for no more than 21 days. Furthermore, even that discretion is exercisable only if the resultant hardship to the lessor would not be equal to, or greater than, that which would be suffered by the tenant if the order were not suspended. It would be inappropriate, without the benefit of submissions by or on behalf of Mr Eastman, to attempt to catalogue the matters which might be taken into account by the Tribunal in exercising the discretion which I have provisionally concluded it has under s 47 of the Tenancies Act. In particular, I am not persuaded that any estoppel arising from the recommendations of the Committee or the decision taken in reliance on that recommendation by Ms Maher as a delegate of the Commissioner would compel the Tribunal to exercise its presumptive discretion by declining to make a termination and possession order.

35. In the first place, as noted at [6] above, a decision by the Commissioner to terminate a tenancy is excluded by cl 20(3) of the Program from the purview of the Committee. More significantly, a decision by the Commissioner to terminate a tenancy under the Housing Assistance Act 1987 is one taken in the exercise of a public discretion. It may be taken from time to time in the light of existing claims for assistance and the Commissioner's assessment of the priority which should be accorded to those claims. It follows that the Commissioner cannot, by any form of estoppel, including one arising from findings of the Committee or statements of the Commissioner or his delegate, preclude himself or any successor from exercising the discretion at all, or in a particular way, in the future; see Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 at 200 and the cases there cited. In the same case, Gummow J observed, at 217;

`Assuming that (i) the doctrine of promissory estoppel were available in the present case, and (ii) that it is an essential ingredient in such an estoppel for the party relying upon it to show that he had so changed his position on the faith of the representation, that he would suffer detriment if the estoppel were not enforced, and that (iii) there was a representation that if the respondent gave no further cause for his deportation, he would be free to continue his life in Australia, nevertheless even then I would not be persuaded that the respondent had changed his position in any relevant sense upon the faith of that representation. How can the respondent point to any change of position on his part which will operate to his detriment if the appellant's deportation order of 28 January 1988 stands? Is the respondent to be heard to say that but for the representation upon which he seeks to rely he would have given further cause for his deportation or otherwise acted in a reprehensible manner? Counsel for the respondent pointed only to alleged "emotional or psychological" detriment which the respondent would suffer if the deportation order were to be implemented, but that, in my view, could not suffice. It would not flow from any change of position which occurred on the faith of the alleged representation before the making of the second deportation order.'

36. In my view, those observations can be paraphrased to apply with equal force to the present case. How, it may rhetorically be asked, can Mr Eastman point to any change of position on his part which would operate to his detriment if the assurance in Ms Maher's letter of 5 September 2000 were resiled from? That is not to say that the recommendations of the Committee and Ms Maher's consequent letter are matters which the Tribunal could not take into account in exercising the discretion which I have imputed to it. However, the considerations outlined above are sufficient to dispose of Mr Eastman's contention that the doctrine of estoppel compels the Court to substitute for the orders of the Tribunal an order that the Commissioner's application for termination of Mr Eastman's tenancy and possession of the premises be refused.

37. It was for the reasons explained above that I ordered on 30 May 2006 that:

(2) The orders made by the Tribunal on 26 November 2001 be set aside.

(3) The application of the respondent Commissioner for Housing be remitted to the Tribunal to be heard and determined according to law.

I can discern no reason why there should be any order as to costs in consequence of those orders.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.