THE APPEAL By Notice of Appeal of 10 December 1996, the appellants appealed from the whole of the decision of Mr Hannan upon the grounds: "1. That the learned Magistrate erred in deciding that he had no discretion other than to grant an order for a warrant for possession pursuant to sec 48 of the Tenancy Act 1979 upon finding the facts supporting such application proven.

2. That the Magistrate was wrong in law, in that, by the said reasons, he failed to take into account, alternatively, give any or any sufficient weight to the evidence that the Appellants did not consent to the presence of persons on the premises the subject of the said application as is required by the implied covenant described by schedule 4 para. 2.(c) of the Tenancy Act 1979 the breach of such covenant being the stated basis for the issue of the afore mentioned warrant for possession." The appellants seek an order that the matter be returned to the Local Court to be heard and determined according to law, in addition to any other and further orders that this Court sees fit.

THE LEARNED MAGISTRATE'S FINDINGS In his reasons for decision of 13 November 1996, which appear to have been delivered extempore, the learned Magistrate referred to the evidence in some detail and incorporated a number of findings of fact. It must be said that the form of the learned Magistrate's reasons for decision makes it difficult on occasions to distinguish his comments on the evidence from his findings of fact. However, from a thorough reading of his reasons, it is clear that the learned Magistrate found the following:

activities extending over a period of years at the premises constituted a disturbance, nuisance and annoyance to adjoining or neighbouring occupiers;

the persons causing such disturbance, nuisance and annoyance were not the appellants personally, but were a large number of acquaintances, relatives and extended family of the appellants comprising mainly visitors from Maningrida;

on several occasions when a disturbance, nuisance and annoyance to adjoining or neighbouring occupiers had occurred, one of the appellants (Winnie Mason - who is the mother of Anthony Mason, the other appellant) left the premises and slept elsewhere without taking any action to ensure persons on the premises conducted themselves in a manner which would not cause such disturbance, nuisance and annoyance;

the appellant Anthony Mason, who is a quadriplegic, is incapable of taking any physical action to remove from the premises, or control the conduct of, anyone causing a disturbance, nuisance or annoyance; his ability to act is limited to verbal commands;

in January 1996, in answer to a question from a Housing Commission employee as to why twenty or more persons were on the premises, the appellant Winnie Mason replied to the effect that she had invited them there, but once there she could not ask them to leave;

the appellants made some efforts to exclude from the premises persons causing a disturbance, nuisance and annoyance, in particular by: (i) calling for police assistance on a number of occasions; (ii) obtaining a Court order to prohibit Anthony Mason's former wife from entering the premises; (iii) raising the height of the rear fence of the premises in an attempt to prevent persons climbing over it; (iv) occasional use of a padlock and chain on the front gate of the premises to exclude persons entering; and (v) ordering persons to leave the premises

• in particular Anthony Mason's brother and sister;

some attempts to exclude specific trouble-making visitors had been successful, but generally whatever efforts had been made by the appellants in this regard had been in response "to acute problems arising after discrete intervals in time in response to complaints of neighbours ... passed on to the (appellants) by the Housing Commission";

notwithstanding the occasional and, for the most part, largely ineffectual attempts to exclude persons from the premises by command or physical means, the appellants had tacitly allowed the use of the premises by a large number of extended family members, relatives and acquaintances;

the tacit permission granted by the appellants amounted to the giving of consent by the appellants to the presence on, and use of, the premises by the large number of persons who had caused disturbance, nuisance and annoyance to adjoining or neighbouring occupiers.

neither of the appellants has ensured that such persons, at the premises with the consent of the appellants, conduct themselves in a manner that would not cause a disturbance, nuisance or annoyance to adjoining or neighbouring occupiers. APPEAL GROUND NO. 2 - "CONSENT" It is convenient to deal with the appellants' second ground of appeal before considering whether the Local Court has a discretion under section 48 of the Act whether or not to grant a warrant of possession in circumstances where a valid ground is established for a lessor's notice to quit.

Mr Davis, for the appellants, has sought to argue that a "strict" approach should be adopted in relation to whether a lessee has "consented" to the presence of persons on the relevant premises who cause a disturbance, nuisance or annoyance in terms of paragraph 2(c) of Schedule 4 to the Act. In essence, Mr Davis points to the dire consequences for the appellants in having a warrant of possession made against them and submits that the "quasi penal" character of the Act's provisions should be interpreted in a manner favourable to lessees. He submits that the "consent" referred to in paragraph 2(c) of Schedule 4 to the Act means something more than the "tacit permission" found by the learned Magistrate to have been granted by the appellants. In Mr Davis' submission, there is a distinction between mere acquiescence and the positive consent required for a breach of the implied term which is to be read into the appellants' lease pursuant to section 55 and para. 2(c) of Schedule 4 to the Act.

In his submissions, Mr Davis referred me to a number of cases which illustrate a distinction between "consent' and "acquiescence". He emphasised the efforts which the appellants had made to exclude troublemakers from the premises and submitted that nowhere in the evidence is there anything to suggest that the appellants positively signified their consent to the presence of people at the premises who had caused a relevant disturbance, nuisance or annoyance.

I do not set out the various authorities cited by Mr Davis. I do not find them of assistance in the present case. None of the cases deal with the Tenancy Act . I consider that there are very real dangers in applying to para. 2(c) of Schedule 4 to the Act the definition of "consent" adopted in relation to other legislation, concerning in some cases subject matters and/or contexts far removed from the present.

I do not consider that the construction of the word "consent" poses any difficulties in the present context. It is a common word, widely understood to mean voluntary agreement or a "conscious permitting". Consent may be hesitant, reluctant, even grudging, but if voluntarily and consciously given it remains consent. I can find nothing in the reference to "consent" in para 2(c) of Schedule 4 to the Act - or the Act read as a whole - which requires the word to be given anything other than its natural and ordinary meaning. In particular, I can find no basis to require "consent" in the present context to require the communication of permission by the appellants to their visitors. The existence, or otherwise, of consent is a question of fact to be decided in the light of all the evidence. Consent can, of course, be implied from conduct. In the present case, the learned Magistrate's reference to "tacit permission", viewed in the context of his reasons for decision as a whole, simply conveys that while the appellants may well have resented the presence of their troublesome visitors, he found as a fact that they consented to such presence. This was a finding open to him on the evidence and in the light of his findings which I have sought to summarise earlier in this judgment.

It may well be that for cultural reasons the appellants felt themselves obliged to accept the presence on the premises of large numbers of their relatives, members of their extended family and acquaintances. They may well have been reluctant to do so. They may well have preferred that none of the visitors ever came to the premises. None of this, however, contradicts the learned Magistrate's finding that the appellants in fact did consent to the presence of the troublemakers.

I do not consider that there is any substance in this ground of appeal.

APPEAL GROUND NO. 1 - DISCRETION? The learned Magistrate ruled that he had no discretion under section 48 of the Act other than to grant the order for a warrant of possession once the breach of the lease set out in the respondent's notice to quit had been established.

Mr Davis submits that such a discretion exists and the learned Magistrate erred in failing to exercise it.

"(1) Where a lessor has given to a lessee a notice to quit which complies with this Part, the lessor or an agent authorized in writing may, at any time within 60 days after the expiration of the term of the notice, apply to the Local Court for a warrant of possession. (2) The Court shall specify the day on which an order for the issue of a warrant of possession takes effect." It is to be observed immediately that section 48 does not expressly grant the Local Court a power to order the issue of a warrant of possession. That the Court can make such an order is implicit in section 48(2) (and see also sections 42, 51(3) and 51A(4)). Nevertheless, the omission in section 48 of any express reference to the Court's power is curious. One consequence of the omission is the absence of any guidance as to whether the Court's power to make such orders is discretionary or mandatory subject to the lessor's compliance with other relevant provisions of the Act.

Sections 51(3) and 51A(4) of the Act do provide express powers for the Local Court to order the issue of a warrant of possession in specified circumstances. They provide little or no assistance in construing the Court's power to make such orders generally or under section 48 given that the power in section 51(3) is mandatory and that in section 51A(4) is discretionary.

Mr Davis for the appellants submits that on general principles the Court's power to issue a warrant of possession is discretionary. It is not surprising that Mr Davis has not been able to find any authorities which deal with a similar situation as the present, i.e. where a court has an implied power to make an order of the present kind, that is one affecting the rights between a lessor and lessee. One would usually expect such a power to be not only granted expressly but accompanied by clear guidance as to the circumstances when it is to be, or may be, exercised.

Mr Davis referred to Statutory Interpretation in Australia, by Pearce and Geddes (4th Edit.) at para [11.10]:

"In contrast with provisions concerned with assumption of jurisdiction, provisions which empower courts to grant relief of a specified kind are usually not treated as imposing an obligation to exercise that power ... The foregoing appears to be the standard approach, fitting as it does with the general common law and equitable rules relating to the discretion the courts exercise with regard to remedies." Mr Hunter for the respondent referred me to the passages immediately following the above in Pearce and Geddes:

"However, there are cases where the view has been taken that once an issue has been determined in a particular way, the court has no discretion but to grant the relevant relief. ... The basis for the difference in approach in these cases seems to lie in the fact that the relevant legislation clearly intended the benefit of the relief sought to flow automatically once the court had established the relevant facts. The more usual approach of vesting a discretion in the court was displaced in the particular statute." In the present case, is the general principle to be applied such that the power to order the issue of a warrant of possession is discretionary - or does section 48 clearly intend a lessor to have such an order once the Court is satisfied that the lessor was entitled to give a notice to quit under section 47 of the Act and the procedural requirements of the Act have been complied with?

In considering this question, it may be instructive to consider the legislative history of section 48 of the Act.

Section 48 first appeared as part of the Tenancy Act 1979 (Act No. 43 of 1979). At that time the power to issue warrants of possession was vested in a Tenancy Tribunal (constituted by a Magistrate) - a body created by the Act.

Section 48 of the 1979 Act provided detailed procedures for an application for the issue of a warrant. Sections 48(7) and (8) provided:

"(7) Where the Tribunal proceeds to hear and determine an application in accordance with sub-section (5), the Tribunal shall make an order terminating the agreement and an order for possession of the premises if it is satisfied - (a) that notice to quit was given by the lessor or lessee to the other and that it complied with and was given in accordance with this Act; and (b) where the notice was given by the lessor upon a particular ground prescribed by this Act that the lessor has established that ground and, in the case of a notice given upon the ground of a breach by the tenant of a term of the agreement, that breach is in the circumstances of the case such as to justify termination of the agreement. (8) Notwithstanding the provisions of sub-section (7) the Tribunal may - (a) suspend the operation of orders made under sub-section (7) for a period not exceeding 90 days if it is satisfied that it is desirable to do so having regard to the relative hardship that would be caused to the lessor or to the lessee; or (b) refuse to make orders under that sub-section if it is satisfied that in the case of notice given by the lessor upon the grounds of a breach by the lessee that the lessee has remedied the breach. It is to be noted that, subject to the procedural matters referred to in sections 48(7)(a), where the lessor relied upon a statutory ground in issuing a notice to quit and this ground was proved, the Tribunal was required to make an order for the issue of a warrant of possession (subject to the limited discretion in section 48(8)(b) for the Tribunal to refuse such an order where the relevant breach of the lease had been remedied by the lessee). In the case of a notice to quit where the lessor relied upon a contractual ground alone, the Tribunal was to exercise a broader discretion. The Tribunal in such cases was also to be satisfied that "the breach is in the circumstances of the case such as to justify termination of the lease". As to this distinction between applications based on statutory grounds and those based on breach of contract under the repealed provisions, see generally the decision of Muirhead J in R v Tenancy Tribunal Ex p NT Housing Commission , unreported judgment of the Supreme Court of the Northern Territory delivered on 27 April 1984.

Section 48 of the Act was subsequently amended in a number of respects by Act No. 19 of 1982. The effect of the amendments is not relevant in the present context.

Section 48 was further amended - to its present form - by Act No. 31 of 1990. The effect of that Act was to abolish the Tenancy Tribunal and confer its jurisdiction on the Local Court. While neither counsel for the appellants nor for the respondent has referred me to the legislative history of section 48, given what I perceive to be the curious absence of an express power in the Act as it presently stands to grant warrants, I have referred to the Second Reading speech and debate relevant to the Bill which became Act No. 31 of 1990. That speech and the debate sheds no light on the present issue - and in particular reveals nothing as to why former subsections (3) to (7) of section 48 were omitted entirely and section 48 enacted in its present form.

The legislative history of section 48 to which I have referred provides no direct assistance in determining whether the implied power in the Act to order the issue of a warrant is discretionary or mandatory (within the limits that I have referred to regarding compliance with the Act's procedural requirements generally). However, given the history of section 48, it would appear to be at least questionable whether by enacting the provision in its present form the legislature intended that the Local Court should have general discretion whether to order the issue of a warrant of possession in circumstances where the lessor has served a notice to quit on valid (and subsequently established) grounds and otherwise complied with the Act's provisions.

Consideration of the Act generally serves only to reinforce doubts that the Local Court was intended to have such a discretion.

At common law, there were several methods of recovering possession of leased premises, not all of which involved proceedings in a court. In particular, re-entry by way of self-help was available as a remedy for termination of a tenancy agreement, whether such termination occurred by expiry of a fixed term or for breach of the tenancy agreement in certain circumstances. Section 42 of the Act abolishes the common law in this regard. Section 42 provides that it is unlawful to enter premises in possession of a lessee save in accordance with "an order of a court". Accordingly, the procedures for recovery of possession of leased premises in the Northern Territory are governed by the provisions and procedures set out in the Act, notwithstanding that those provisions and procedures may be at variance with the conditions of the lease entered into between the parties.

In substance, the Act provides a code governing the repossession of premises including: (a) the grounds of recovery and the time provided by notices to quit (sections 47 and 47A); (b) the form of a notice to quit (section 42A); (c) the consequences of a defective notice to quit (section 45); and (d) limits on the operation of a notice to quit in specified circumstances (section 47B). Analysis of the Act's provisions indicates that the legislation provides a substantial measure of restriction upon the circumstances in which a lessor can terminate a lease. It should not be overlooked that a lease is a commercial agreement in which both the lessor and lessee undertake various obligations. The Act restricts the grounds upon which a lessor can terminate a lease and thus potentially deprives the lessor of at least some of the value of his property. Against this background, can the legislature have intended that the Local Court would have an overriding general discretion not to order the issue of a warrant of possession where the lessor has established one of the statutory grounds and otherwise complied with the Act?

Considering the Act as a whole, I consider the answer must be no.

The Act provides a measure of protection for lessees by restricting the grounds upon which a lessor may issue a notice to quit, by imposing procedural requirements and abolishing the common law right of a lessor to re-enter by way of self-help on termination of a lease (whether by expiry of a fixed term or upon contractual breach). Section 47B of the Act expressly limits the operation of an otherwise valid notice to quit in specified circumstances. If the legislature had intended that there should be discretion to mitigate the effects of a valid notice to quit in other circumstances, this could - and I am satisfied would - have been provided for expressly. Section 48(2) does provide the Local Court with power to postpone the date upon which a warrant of possession is to take effect. No limit is placed on the length of such a postponement (in contrast to the repealed section 48 (7)(a) providing a maximum for postponement of 90 days). Accordingly, the Local Court has a wide discretion to take account of the effect of a warrant of possession on the lessee and alleviate the practical consequences of the lessee's eviction.

I consider that the legislature's intent in Part VII of the Act is clear, i.e. that subject to section 47B, once the Local Court is satisfied that: (a) pursuant to the Act the lessor was entitled to give the notice to quit; (b) the ground specified in the notice has been established; and (c) such notice complies with the requirements of the Act and has been duly served on the lessee, the Local Court is required to order the issue of a warrant of possession. Accordingly, I am satisfied that the learned Magistrate did not err in deciding that in all the circumstances he had no discretion other than to grant an order for the warrant of possession.