Fisher v Aboriginal Hostels Ltd & Anor [1998] VSCA 130

Fisher v Aboriginal Hostels Ltd & Anor [1998] VSCA 130 - VSCA 1998 case summary — Zoe

[16]

The respondent's articles of association commit its business to the management of its directors, who are appointed by the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs. The respondent and the Commonwealth have agreed by deed that the Commonwealth will make available to the respondent moneys appropriated by the Commonwealth Parliament for the purpose of meeting the respondent's expenditure; that the respondent will regard itself as an instrument of the Minister for the provision of hostel accommodation for Aboriginal and Torres Strait Islander peoples and act in accordance with a corporate plan prepared pursuant to the deed; that the respondent will appoint the Australian Auditor-General as auditor; and that its staff will be appointed or employed under the Public Service Act 1922 of the Commonwealth. In accordance with its corporate plan the respondent provides a low-cost, temporary accommodation service to Aboriginal and Torres Strait Islander people throughout Australia. The accommodation is provided through 163 hostels of which 52 are operated directly by the respondent and 111 are operated by other organisations which it financially supports. The evidence discloses that by this means 1,356 hostel beds are provided each night throughout Australia - 493,584 a year. Each person occupying a bed in a hostel is charged a tariff for board and lodging according to his or her income and is provided with three meals a day, housekeeping, a safe and sound environment and recreational facilities. Hostels are staffed 24 hours a day, and the staff are usually Aboriginal and Torres Strait Islander people. Tariffs set by the respondent are calculated by balancing three factors - the cost of providing accommodation and other services, the ability of residents to pay and the benefits to the advancement of Aboriginal and Torres Strait Islander people flowing from the respondent's activities. In consequence, the respondent's receipts from tariffs paid by residents equal only a proportion of its cost of operating the hostels and providing accommodation and other services. In the 12 months ended 30 June 1995 the respondent received some $3.3 million by way of income from tariff payments and $245,000 by way of incidental income, whereas its expenditure exceeded $17.6 million. It received a subsidy from the Commonwealth Government in excess of $14 million to operate its 52 hostels. Income and expenditure were of a similar order in the 1996 financial year.

[17]

The respondent operates six categories of hostels. These are described as transient hostels, medical transient hostels, homeless hostels, tertiary education and training hostels, secondary education hostels and aged care hostels. According to the evidence of Alan Liddle, the respondent's regional manager for Victoria, accommodation at the hostels is provided to applicants on a "first come first served" basis and on the footing that persons accommodated have a right to occupy a bed but not a right to occupy a room. The respondent measures occupancy and performance of a hostel in terms of meeting needs by reference to the percentage of occupied beds. The W.T. Onus Hostel is classified as a transient hostel, the object of which is to provide for Aboriginal and Torres Strait Islander people requiring short-term accommodation. It is nevertheless the respondent's policy to accommodate in that hostel, if it has empty beds, Aboriginal and Torres Strait Islander persons having other requirements if hostel accommodation suitable to them is not available in the area. Those who are provided with transient accommodation are expected to stay no more than three months but persons in some categories, such as students, may stay for longer periods until, for example, they complete their studies or find alternative accommodation. Provision of accommodation by the respondent is based always on availability of a bed as opposed to availability of a room. The W.T. Onus Hostel has 11 rooms in which 27 beds are arranged for occupancy. A person seeking accommodation is allocated a bed and will not uncommonly be required to share the room containing it with at least one other person, who will occupy another bed in that room. The hostel contains eight rooms with two beds each, two rooms with four beds each and one room with three beds. No room has one bed only. The hostel had an occupancy rate of 68% in the 1996 financial year; and in the 1995 and 1996 financial years its operating costs exceeded $240,000 of which about a quarter was recouped from tariffs and the like, the remainder being recovered by way of government subsidy.

[21]

Counsel for the appellant contended, moreover, that a ready answer to the question in his favour is provided by paragraph (b) of the definition of "rooming house" which, as it was said, expressly contemplates that four people might use a single room in a rooming house and use it, what is more, "in any way". This was perhaps the strongest feature in the appellant's argument. At first blush, and when read in isolation from other sections of the Act, paragraph (b) may appear to support the appellant's contention. In a sense, however, the words "who in any way may use the room or rooms" tend to prove too much, for they suggest that in paragraph (b) the use contemplated is not of "any room or rooms ... for the purpose of residence by any occupier or occupiers ... having a right to the use thereof": cf. the definition of "room". Had it been envisaged that four "people" referred to in paragraph (b) were, on account of their joint use of a room, "residents" - i.e. persons having taken up occupancy of a room - it would hardly have been necessary to use the words "in any way": the use of those words rather suggests that the "people" referred to in paragraph (b) are not (or not necessarily) occupiers of the "room or rooms" referred to in that paragraph. A difficult feature of paragraph (b) is the use in it of the words "in which". In paragraph (a) the words "in which" plainly enough refer back to "building"; and in paragraph (b) the words "in which" seem to do the same: it is not easy, tempting though it may be, to treat them as referring back to the "room or rooms" referred to in paragraph (a). Indeed, the room or rooms referred to in paragraph (b) are, on one view, not (or not necessarily) those referred to in paragraph (a); and it seems to me that the repetition in paragraph (b) of the words "in which", and the use of the words "in any way", tend to support that interpretation. Paragraph (b) can be construed, without violence, merely as prescribing that a building is not a "rooming house" unless it is one in which not less than four persons in all may use the room or rooms in the building in any way. This, admittedly, attributes to "room or rooms" in paragraph (b) a meaning which is not confined to that borne by the same words in paragraph (a) - i.e. any room or rooms available for occupancy by a person to live there as a sole or main residence. Neither the terms of paragraph (b) of the definition of "rooming house" nor the definition of "room" would appear, however, to stand in the way of that construction. On the contrary, they seem to require it. In particular, the latter definition would appear to allow the "room or rooms" in paragraph (b) to cover or extend to rooms in a building which a resident has a right to use in common with others, such as a kitchen, lounge or bathroom "or any other room or area designed or set aside for common use by a resident": see the last few lines of the opening paragraph of the definition of "room" and the definition in s.3 of "facilities", in which "room" seems not to be confined to a room of which a resident takes up occupancy.

[50]

Immediately thereafter he said that boarders and lodgers had until then remained the one segment of the tenancy market untouched by legislative action and that the Bill was intended to remedy that situation. (There is also a reference to "the only segment of the tenancy market as yet untouched by legislation", sc. legislation similar to the Residential Tenancies Act 1980, at the end of the speech.) Examples were given of the reasons people live in rooming houses. They often included "a desire or need for only one room for exclusive occupancy" and "the option of independent living combined with the opportunity for company in common areas such as kitchens, dining rooms and lounges". The Minister informed the House that the exact number of rooming houses then operating in Victoria was difficult to determine but that in 1983 the total number was 917, comprising 730 apartment houses and 187 boarding houses. He said that the latter differed from apartment houses in that meals were provided. It is apparent that the Minister was referring to registered apartment houses and registered boarding houses, for there would be no other source for such precise figures and he concluded by saying that, allowing for non-registered premises, there might be up to 15,000 people "housed in rooming house facilities". In 1983 apartment houses and boarding houses were registered under the Health Act 1958, s.220 of which contained a definition of "apartment" similar to the definition of "room" in s.3 of the Rooming Houses Act. The most important difference was that, whereas the latter speaks of an occupier or occupiers "having a right to the use thereof", the definition of apartment spoke of an occupier or occupiers "having a right to the exclusive use thereof". The Health Act also contained a definition of "boarding-house", in which there was no concept of exclusive use of part of the premises. It included a tent in which more than five persons were lodged or boarded. See also the definition of "common lodging-house". Apart perhaps from the examples given of the reasons people live in rooming houses, this part of the second reading speech does, therefore, support the appellant's submissions: the Rooming Houses Bill was intended to deal with the one remaining segment of the tenancy market; the rooming houses referred to apparently included the kinds of accommodation that had been registered under the Health Act not only as apartment houses but also as boarding houses; and the reference to a right to the exclusive use of a room or rooms to be used for the purpose of residence was omitted from the critical definition.

[56]

(a) The definition of "resident" requires not only that a person live in a room as his or her only or main residence but also that he or she take up occupancy of the room. There are numerous other references to occupancy, which are more consistent with a person or group such as a household filling a room than sharing it with others. One of those references that should be emphasized is in s.14(1), which provides that a bond may be required to be paid by a resident before he or she takes up occupancy. The rest of the section is concerned with the condition of the room and the application, with modifications, of provisions of the Residential Tenancies Act dealing with security deposits.

(b) The word "vacate" is used loosely. There are references to vacating the room, but there are also at least eight references, in ss.6(3), 30, 35(6), 37(a) and (b), 38(2)(c) and 41(7) and (9), to vacating the rooming house and one, in s.37(d), to the resident himself or herself being "forcibly vacated" from both. Cf. s.38(4). It is, nevertheless, apparent that a resident's vacating his or her room is regarded as the correlative of the owner's taking "possession" of it, and a room may be "abandoned". See, for example, ss. 5(2), 6(1) and (2), 21(1) and 22(1)(a) and Part 4.

(c) Section 12 requires the Residential Tenancies Tribunal to have particular regard to the rent payable for a similar room in the same rooming house and the rent payable for a similar room in a similar rooming house in a similar location. If the appellant's construction were correct, one would expect a comparison of similar rights to live in a similar room. Section 17 contemplates that a person or group will have exclusive occupancy of a room. Section 18(j) requires a resident to give the rooming house owner the key to the door to his or her room to allow access under s.43. Section 41(10) stipulates a period during which, in certain circumstances, a rooming house owner must not allow any person to reside in a room vacated by a resident, not just to take up the former resident's right to live in the room.

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Parties

Legislation Cited (6)