The defendant's submissions
29Counsel for the defendant draws my attention to the principles of statutory interpretation set out in Ward v Williams (1955) 92 CLR 496, which he summarises as follows:
(1)Where "a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise" (92 CLR at 505-506) - such a factor suggests that the officer is bound to exercise the power.
(2)A related consideration is whether the proceeding exists "for the protection or enforcement of private rights", as opposed to, for instance, where the statutory provisions "are designed to safeguard or serve [interests] enjoyed in the locality by the public at large" (92 CLR at 507-508).
(3)If "the power is conferred upon a judicial tribunal and to be invoked by a judicial proceeding", that may indicate that the officer is bound to exercise the power. That is essentially because "[j]urisdiction and powers are conferred on judicial bodies, usually for the enforcement of rights and the protection of interests" (92 CLR at 507).The obvious contrast is to an administrative decision-making body.
(4)If the decision-making officer "is interposed between" the body entitled to complain about particular conduct and the person against whom the complaint is made, that may be because the decision-maker "is interposed for the protection of the latter: the decision of the [complainant] is not to be conclusive upon" the person against whom the complaint is made (92 CLR at 507).
(5)Where the officer's decision "goes not only to the existence of [the cause for complaint]; it goes also to the propriety or reasonableness of requiring the person notified to abate it. Why should not the [decision-maker's] authority cover the whole area of" the dispute of which the complainant complains (92 CLR at 507)?
(6)Where "sets of facts may fall literally within one or other head [i.e. of the causes for complaint prescribed in the statute] although varying infinitely in degree and substantiality", a discretion may be intended, because "to abate or remove a relatively minor, unimportant or trivial defect may be so costly or difficult as to make it harsh or unreasonable to require it" (92 CLR at 507).
30The defendant submits, and I agree, that the decision in each case turns upon the particular statutory context, and accordingly reference to other decisions considering terms such as "may", and the nature and extent of the discretion statutorily conferred, would be of limited assistance. It is, however, possible to observe, in the authorities to which he has referred the court, examples of how the considerations summarised above should be applied.
31The defendant submits that the perceived advantages which a landlord might be afforded upon involving "any one or another of the alternative powers under s 84 to 85 (whichsoever may be available in a particular case)" are "matters for the landlord and for Parliament" (written submissions, paragraph 2(a)). It is irrelevant that the landlord would have been better off, if the defendant's construction of s 91(1)(a) is correct, in using the traditional method of service of a notice terminating the lease under s 85, which are mandatory (Howard v B Miles Womens Foundation Inc [2012] NSWSC 1173 at [16] - [18]), and under which the exercise of a discretion relating to the tenant's health and financial difficulties would not have been issues for consideration. The undesirability of the consequences of a court finding that s 91(1)(a) confers a discretion not to terminate is a matter for decision in "some other future case" and for Parliament (written submissions, paragraph 2(c)). I accept this submission; the question is whether the section does in fact confer the discretion.
32The defendant submits that, properly construed, s 91(1) does confer a discretion, and describes this discretion as being "on its face unconfined" (written submissions, paragraph 49):
"Where a discretion is on its face unconfined, the question of whether an administrative decision-maker is bound to take into account, or is bound not to take into account, any particular considerations is to be answered by inference from the context, scope and purpose of the statute conferring the power: 2HD (1979) 144 CLR 45 at 49; Browning (1947) 74 CLR 492 at 505; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [23] per French CJ."
33Illegal activities are not simply a matter of private rights but a matter of public interest. Where tribunal proceedings at the same time as, or after, criminal proceedings, s 91 should be interpreted such that the tribunal's authority may be exercised having regard to the interest of the due administration of justice. The course of criminal justice may produce a range of results. In addition, the landlord's interest may not be prejudiced by the use of the residential premises for illegal purposes (written submissions, paragraph 33). Indeed, "in this case, there is no evidence of any detriment to the landlord or any neighbours" (emphasis added by counsel, written submissions, paragraph 33). The landlord has no immediate right to protect, or liability to avoid in a case such as the present. The landlord should have no fear that it may have criminal liability arising from knowledge that their premises had been used for drug related purposes as the landlord knows that the premises "were once used for such purposes, but it only knows that now as a result of a successful exercise in law enforcement." (Emphasis added by counsel for the defendant, written submissions, paragraph 37). These proceedings have been brought on the basis of past, not current, illegal activities.
34The defendant submits that, as in Ward v Williams, supra, the CTTT's role is to be interposed between the landlord and the tenant for the protection of the latter, which is why s 91 looks much less like ss 84 and 85, which leave it entirely in the landlord's hands as to whether and when to issue a termination notice, in contrast to the Tribunal, which by reason of the word "may" exercise a discretion.
35Counsel for the defendant drew my attention to a number of matters on 22 May which he supplemented with a list on 23 May. The submission is that the structure of the Act (items (a) - (e) helps demonstrate that the specific language of s 91 demonstrates the discretion available in relation to s 91(1)(a):
(a)The long title of the Act;
(b)The parts into which the Act is divided (Parts 1 to 12), including their headings;
(c)The Divisions of Part 5, including their headings;
(d)The "general" provisions of ss 80, 81, 82, 83 (i.e. Div 1 of Pt 5);
(e)At least in a general way, each of ss 84 - 85;
(f)The words of each of ss 91(2) to 91(5) and their relationship with s 91(1);
(g)In particular, the use of the word "may" in s 91(1);
(h)The fact that there is no requirement for the landlord to issue a termination notice, which means that the issue is one for determination by the Tribunal;
(i)Any order for possession "may" have immediate effect (s 91(3)), and there are additional protections where the tenancy for a fixed term has not yet expired (s 91(5)).
36While the landlord's interest are served by allowing the landlord to go directly to the Tribunal for expeditious resolution of the problem, s 91's structure makes it clear that the circumstances might, but will not always, warrant immediate ejection of the tenant. That implies there is a discretion. This is in recognition of the variability of the factual issues in cases coming before the Tribunal. If there were no such discretion, then there would only be one possible order, namely a termination order. Both ss 91(3) and 91(5) are directly inconsistent with s 91(1) being mandatory.
37In answer to the plaintiff's submissions as to the evaluative nature of the criteria in s 91(1)(b) and its association with s 91(2), the defendant submits:
(a)Section 91(1)(b) is carefully drafted in limited terms. It refers to the use in question being sufficient to justify termination. It does not say that all of the circumstances of the case require termination (compare the criterion at issue in Leach v R). All that s 91(1)(b) is saying is that there must be, at a minimum, an illegal use of the premises of a certain degree of gravity. The only relevance of s 91(2) is in giving the Tribunal guidance in the evaluative process of deciding whether the particular use has the requisite degree of gravity.
(b)That such a "use", taken in isolation, is "sufficient" to "justify" termination does not say that termination is necessarily the right response to the circumstances. That view is consistent with a recognition that, prima facie, commission of the drug-related offences referred to in s 91(1)(a) might justify termination, but do not require it. The function of paragraph (b) is thus exactly the same as that of paragraph (a), and there is no occasion for the application of the expressio unius maxim (cf plaintiff's submissions para 23).
38For these reasons, the defendant submits that the terms, context, subject matter and purposes of s 91(1) do not suffice to rebut the presumption that the power it confers is discretionary. That discretion does not relate merely to notice proceedings, but to whether termination will be granted at all. Each of ss 84, 85, 86 and 87, and each of the subsections in s 91, confer separate and independent powers on the Tribunal. None of these powers is a gloss on any other. The provisions of s 91 are not designed as a fast track alternative to, for example, s 85 or s 87, both of which could have been used by the plaintiff, but a different process for termination of tenancies, and one which confers significant benefits on the tenant, namely the exercise of an "unconfined discretion", notwithstanding the removal of the notice provisions by reason of the use of premises for illegal purposes.