MATTER : an application under the Magistrates Court Act 2004 s 36 for a review order against Steven Heath, Chief Magistrate of the Magistrates Court at Karratha

Courts and judges - Review on the basis of prejudgment - Whether simply exercise of discretion - Factors taken into consideration - Residential tenancy - Whether illegal behaviour - Whether eviction justified

Magistrates Court Act 2004 (WA), s 36

Residential Tenancies Act 1987 (WA), s 75A

1 McKECHNIE J: The Department of Housing applied for an eviction order in respect of the Applicant, Jazma Lawrence, at an address in Karratha, WA. Originally the reasons for the application:

This action is in accordance with s 64 of the Residential Tenancies Act 1987. The tenant has failed to deliver up vacant possession of property once termination notice has been issued against tenants.

2 The matter came on for hearing before the Chief Magistrate on 13 September 2013. By the time the application came on for hearing the Department expanded the application under s 73, s 75A and s 64.

3 Section 73 relates to termination of the agreement where the tenant is causing serious damage or injury.

4 The magistrate dismissed the application under s 64 and the application proceeded under s 73 and s 75A.

5 Some of the evidence which the Department proposed to lead in respect of s 73 was inadmissible hearsay and eventually the application seems to have dropped away.

Termination of social housing tenancy agreement due to objectionable behaviour

(1) A competent court may, upon application by the lessor under a social housing tenancy agreement, terminate the agreement if it is satisfied that the tenant has -

(a) used the social housing premises, or caused or permitted the social housing premises to be used, for an illegal purpose; or

(b) caused or permitted a nuisance by the use of the social housing premises; or

(c) interfered, or caused or permitted any interference, with the reasonable peace, comfort or privacy of any person who resides in the immediate vicinity of the premises,

and that the behaviour justifies terminating the agreement.

...

(3) In deciding if the behaviour justifies terminating the agreement, or making any order or giving any direction referred to in subsection (2), the court may have regard to whether the behaviour was recurrent and, if it was recurrent, the frequency of the recurrences.

(4) Subsection (3) does not limit the issues to which the court may have regard.

7 In respect of the application under s 75A the witness, Ms Leadbetter, deposed that a statement was taken from the applicant at the property regarding two drug raids carried out on 8 and 22 June 2012. The statement was tendered. In that statement the applicant agreed she had been charged with drug related offences and was intending to plead guilty.

I intended to use the money from the drugs which were seized on June 8th to buy decent furniture for the house. I wanted to do my daughter's room up.

9 Prosecution notices were tendered as exhibit B and the statement of material facts as exhibit C. The prosecution notices indicate that the applicant pleaded guilty on 22 October 2012 to a charge of possession of cannabis, possession of a smoking utensil and possession of an iPhone reasonably suspected to have been stolen.

10 On 8 January 2013 the applicant pleaded guilty to a further charge of being in possession of cannabis and being in possession of a smoking utensil.

11 On 8 January 2013 she also pleaded guilty to selling a prohibited drug to another.

12 The statement of material facts in relation to a police raid on 8 June 2012 asserted:

Before commencing the search, the co-accused directed police to a large vacuum sealed bag containing numerous smaller bags of cannabis. On video the accused admitted that she knew the cannabis was at the address. The accused further stated that when she and the co-accused are in possession of cannabis she regularly packs it and supplies it to friends and family. She also admitted to selling cannabis to make a profit.

The items were subsequently seized by Police and later conveyed to Karratha Police Station where they were weighed and re-packaged. The total weight of the cannabis seized was 161.32 grams.

...

Police commenced a search of the laundry area and located a plastic bottle smoking implement and a small clipseal bag of cannabis sitting on top of the washing machine.

13 On 8 December 2012 the applicant sold two clipseal bags containing approximately 2 grams of cannabis to a male person for $100 cash. She made full admissions and in due course pleaded guilty.

14 In crossexamination Ms Leadbetter said that it was clearly evident the applicant is Aboriginal. She has four young children. One of the last court dates was adjourned because the applicant had to travel to Perth with her daughter to seek medical treatment for an ongoing condition. She provided evidence that in March she gave birth to her fourth child and suffered serious medical complications. The witness disagreed she was dealing with a vulnerable tenant because of threats she had made to colleagues about the witness. The witness was aware of the Department's needs to assist vulnerable tenants, where possible, to maintain their tenancies and was aware of the STEP programme called SHAP at the time.

15 Ms Nicholson was called by the Department to give evidence about a phone call she overheard. She heard shouting, lots of shouting, and abusive language. She recognised the voice of Ms Lawrence. She intervened because she had a good rapport with the applicant. Details were given of various phone calls. In crossexamination the witness was not challenged about the phone call but agreed there had been no further threat since 21 January 2013.

16 The witness, Ms Nicholson, was corroborated by the witness, Ms Smith, who was not crossexamined.

17 On behalf of the applicant, Ms Cassidy tendered two support letters which the magistrate received into evidence. One was from the Clinical Director of the Pilbara Mental Health and Drug Service noting the applicant's difficulties. She displayed clear signs of depression, anxiety and panic disorder.

18 The other was from the Principal of the Karratha Primary School in relation to the interests of the children:

Therefore it is very difficult to see the current stability in school continuing if her family is made to leave her current home. ... This upheaval will have a detrimental effect on their schoolbased performance academically, emotionally, socially and physically.

In relation to these applications, I will deal firstly with the section 75A application, because that appears to be determinative. This is a case where it is clear that the premises were used for an illegal purpose. It was both for the possession of drugs, but more significantly, used for the sale of drugs. As has correctly been said, this is a two stage process, and I have to be satisfied that the behaviour justifies the termination of the agreement, and whilst I have letters in support of Ms Lawrence, and I accept the substantial social disadvantage that she faces, in my view, there can be no answer to the use of the premises for the sale of drugs.

The sale of drugs is a blight on the community, and in my short stay here, most of the offences which are before the court seem to be relating to property offences for the purposes of obtaining money to purchase drugs, and those who engage in the sale of drugs, do so for personal gain, and that was, as I read the facts, the object of the exercise entered into by Ms Lawrence. In those circumstances, it is an offence which justifies the termination of the agreement.

Accordingly, the application under section 75A will be granted, and there will be an order that the tenancy agreement for the premises at unit 10, 1928 Ridley Street, Karratha, shall terminate as from next Friday, 20 September, and the tenant shall deliver up possession of those premises. Given the order on that application, the application under 73 will be dismissed (ts 23 - 24).

20 The application for review is brought under the Magistrates Court Act 2004 (WA) s 36 which gives the Supreme Court wide powers to control the Magistrates Court by way of a review order. The Residential Tenancies Act however limits that power:

(1) An order made by a court under this Act is final and binding on all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof.

(2) No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court had or has no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice.

(3) This section applies despite Part 7 of the Magistrates Court (Civil Proceedings) Act 2004.

[T]here has been a breach of natural justice in that the comments made by the Chief Magistrate in delivering his decision indicated prejudgment and/or bias.

22 This is expanded in paragraph 5 of the affidavit in support:

At pages 23-24 of Exhibit 'KC2' (the transcript) are the Chief Magistrate's reasons for his decision. Section 75A(3) of the Residential Tenancies Act 1987 ('the RTA') makes provision for the Court to consider whether the behaviour was recurrent, and the frequency of recurrences and the records indicates that the Magistrate did not turn his mind to this, he was against any activity involving drugs and he would never exercise the discretion available to him pursuant to s 75A of the RTA, if the grounds for termination involved use of the premises for the sale of drugs.

23 The magistrate correctly observed that there was a twostage process. There was no issue as to the first stage. The applicant had clearly engaged in using or permitting the social housing premises to be used for an illegal purpose. It was relevant to consider the extent and seriousness of the illegal purpose weighed against other matters which might affect the exercise of the discretion. This is what the magistrate did. His remarks do not indicate bias or prejudgment. Instead, they indicate a balancing of factors in the exercise of his discretion. He was entitled to take into account the serious effects of crime. There is no basis for the grant of a review order and the application is dismissed.