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[2017] WASC 226
Supreme Court of WA
2017-08-11
Pritchard J
Original judgment source is linked above.
Other Party : State Solicitor for Western Australia
(These reasons were delivered extemporaneously on 31 July 2017 and have been edited from the transcript.)
1 On 12 May 2017, a Magistrate made orders terminating a social housing tenancy agreement between the Housing Authority and Ms Wallam (tenancy agreement) and required that Ms Wallam give vacant possession of the home which she leased (the Home) pursuant to that agreement (the Decision). The Decision was made by the learned Magistrate pursuant to s 75A of the (WA) (the Act).
2 Ms Wallam has made an application for review of the Decision pursuant to s 36 of the Magistrates Court Act 2004 (WA) (MC Act), on grounds alleging that the learned Magistrate made jurisdictional errors in making the Decision. On 22 June, I made a review order requiring the learned Magistrate and the Housing Authority to satisfy the Court that the orders made by the learned Magistrate to give effect to the Decision should not be set aside. At the hearing of the review order, the learned Magistrate abided by the decision of the Court. The Housing Authority was represented by counsel.
3 For the reasons which follow, I have concluded that the learned Magistrate made a jurisdictional error in that she misconstrued s 75A of the Act, and consequently misapprehended the nature of the power which she was required to exercise under s 75A of the Act.
4 The decision of the learned Magistrate should be quashed and the application by the Housing Authority for the termination of the tenancy agreement should be remitted back to the Magistrates Court for further hearing according to law.
5 In these reasons for decision, I deal with the following matters:
6 Ms Wallam lived at the Home from November 2010. Until 2015 (that is, for over four years), Ms Wallam had lived at the Home without incident and the Housing Authority had had no concerns about her behaviour. However, trouble arose in 2015. That appears to have coincided with a period during which Ms Wallam entered into a relationship with a Mr Miller, who lived with her at the Home. The learned Magistrate accepted Ms Wallam's evidence that he was a 'bad influence' on her.
7 Three other persons also either resided at, or appeared to have frequented, the Home during the same period. The learned Magistrate found that during this period, Ms Wallam permitted the Home to be used for the purposes of offences under the Misuse of Drugs Act 1981 (WA).[1]
8 Five search warrants were executed at the Home during 2015 and early 2016. They resulted in charges being laid against Mr Miller, the three other persons to whom I have referred, and Ms Wallam. Ms Wallam was convicted of the following offences: possession of a prohibited drug, namely diazepam; two counts of possession of unlicensed ammunition; possession of cannabis with intent to sell or supply; possession of methamphetamine with intent to sell or supply; selling a prohibited drug, namely methamphetamine; and possession of stolen goods.
9 Ms Wallam's evidence, which the learned Magistrate accepted, was that by November 2015, she realised that she was in 'the wrong crowd', and she made it clear to the three other persons frequenting the Home that they could not continue to engage in the sort of behaviour in which they previously engaged. It appears to have taken Ms Wallam a few more months before she realised that Mr Miller was also a part of the problem, and that she had to take steps to end her relationship with him, and thus to bring an end to his behaviour at the Home.
10 The evidence at the trial, which the learned Magistrate accepted,[2] was that since Ms Wallam separated from Mr Miller, she had been doing well.
11 There was also evidence, again accepted by the learned Magistrate,[3] that Ms Wallam lived at the Home with her own three children, and with two other children for whom she was the primary carer. All of those children were of school age. The learned Magistrate accepted[4] that the children were going to school and that Ms Wallam was caring for them well.
12 There was also no evidence that Ms Wallam had used the Home for an illegal purpose since April 2016, and the learned Magistrate accepted that Ms Wallam had been conducting herself in an appropriate manner since that time.[5]
13 The only other matter which I should mention is that after the Decision, Ms Wallam vacated the Home in compliance with the orders of the learned Magistrate, and in advance of the date by which she was required to give vacant possession. Ultimately, I granted a stay in respect of the decision of the learned Magistrate, to preserve Ms Wallam's opportunity to live at the Home. It was apparent in the course of the stay application that the termination of the tenancy agreement would cause real difficulties for Ms Wallam in finding another place to live. Since vacating the Home, she and the five children in her care have been effectively without a home and have had to make do with temporary accommodation with relatives, in circumstances which are clearly wholly unsatisfactory and cannot continue in the longer term. I refer to that only to illustrate the fact that the unfortunate reality for many social housing tenants is that the termination of their tenancy agreement may well result in them being homeless.
14 Insofar as Mr Miller's conduct was concerned, the learned Magistrate found that Ms Wallam had turned a blind eye to what was going on in the Home and thus permitted her house to be used for illegal purposes, by Mr Miller.[6]
15 At one point, it appeared that the learned Magistrate took Mr Miller's conduct into account in determining whether the tenancy agreement should be terminated. However, the learned Magistrate then said:
[E]ven irrespective of Mr Miller's convictions, even if I was not to take his convictions and his use of the premises into account, I would come to the same finding that I ultimately do, just considering Ms Wallam's convictions alone, and I would turn to them now.[7]
16 The learned Magistrate then considered the nature of the offences for which Ms Wallam had been convicted. She observed:[8]
Ms Wallam pleaded guilty to all of the charges that she faced and she was sentenced on the basis that her offending was limited to the period when she was in the relationship with Mr Miller. The investigating officer of the investigation, or at least part of it, accepted that her role was not as serious as Mr Miller's. However, even so, some of the charges that she pleaded guilty to were very serious. I accept that they were her offending was confined to this relatively short period, but nonetheless it's behaviour that I had to consider under s 75A of the [Act].
...
Drug matters, particularly the sale or possession with intent to sell or supply are serious matters. I also note that even considering the investigating officer's concessions and the basis on which Ms Wallam was sentenced, her offending effectively escalated over the span of four search warrants.
Had this matter been dealt with more proximate to the filing of the Housing Authority's application, s 75A of the [Act] would have clearly been met and Ms Wallam would have been evicted.
...
Clearly, if this had been dealt with proximate to the time of the last search warrant in April 2016, or even at the time that the Housing Authority lodged its application, which I find it lodged at the appropriate time, given the inquiries that it had to make, clearly Ms Wallam would have been, in my view, ought to have been the subject of a termination of the lease. So I have to consider whether I am able to take into account firstly the factors that have occurred subsequent to the lodgement of the application, and secondly whether I can take into account other factors other than the behaviour that the Housing Authority complains of.
The issue is whether I can take into account the change in Ms Wallam's circumstances since the behaviour, as defined in s 75A.
17 The learned Magistrate noted that that subsequent conduct included Ms Wallam's conduct, and her looking after the five children in her care. The learned Magistrate then continued:[9]
There's no suggestion that she has used the house or the premises for an illegal purpose since the last search warrant ... . I accept that Ms Wallam has been conducting herself in an appropriate manner after the last search warrant and certainly after she was sentenced in the Magistrates Court for the matters that she pleaded guilty to, but the question is whether I can take that into account.
Ms Wallam's counsel says that I can. The Housing Authority says that I can't, and I've been referred to some cases in that respect. None of them are directly on point.
18 The learned Magistrate then referred to the terms of subsections 75A(1) (4). She then observed:[10]
[I]n determining the orders that can be made, I don't believe that I'm limited to the issue of only considering behaviour. But for the purposes of determining whether the agreement should be terminated, I am. And what that means is that although I do have sympathy for Ms Wallam's position in relation to her children, in relation to the very real efforts that she has made to overcome the difficulties that she had in 2015 and 2016, I'm unable to take them into account on a proper interpretation of s 75A and the intent of that section.
I cannot take the behaviour into account ... There is, of course, some discretion in s 75A, but there are limitations on the discretion, and they are limited to the seriousness of the offending and the recurrency or the frequency of the recurrences of the offending.
...
As I say, although I do have real sympathy for Ms Wallam's situation and her predicament, because she has clearly made significant efforts in the last year to overcome her drug use and issues relating to that and to look after her children in an appropriate manner, on a proper construction of s 75A, I have to order termination. And so I do find that there was a use of the house by Ms Wallam for an illegal purpose, and that she further permitted the social housing premises to be used for an illegal purpose, and that she herself did use it for an illegal purpose, and because of the number of the offences and the period over which they occurred it was not a oneoff the behaviour does justify terminating the agreement.
19 The learned Magistrate then concluded that in the exercise of the power under s 75A(2), it was open to her to make incidental orders. Taking into account Ms Wallam's responsibilities for the care of children of school age, and the time it may take her to find other accommodation, the learned Magistrate concluded that the tenancy agreement should come to an end, but that vacant possession should not be given until 15 July.
3. The Court's review jurisdiction under s 36 of the Magistrates Court Act
20 Ms Wallam seeks an order that the decision of the learned Magistrate be set aside or quashed. That relief is in the nature of certiorari. The MC Act relevantly provides:
A writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a Court officer.
21 An alternative form of relief to the prerogative writs is provided by s 36 of the MC Act which provides:
(1) If a person is or would be aggrieved by one or more of the following
(a) the failure of a Court officer to do any act or make any order or direction
(i) on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii) on any ground that might have justified an order of mandamus;
(b) an act, order or direction that a Court officer proposes to do or make
(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii) on any ground that might have justified an order of prohibition;
(c) an act, order or direction done or made by a Court officer
(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii) on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
22 The power in s 36 of the MC Act is a judicial review power. The purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the court.[11] The intention is to permit judicial review in those situations in which the specific prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies.[12] The power to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.[13]
23 I digress to observe that s 26(2) of the Act provides that no order shall be made under s 36 of the MC Act unless the Supreme Court is satisfied that the Magistrates Court had or has 'no jurisdiction' conferred by or under the Act in respect of the proceedings, or that a party to the proceedings has been denied natural justice. The words 'no jurisdiction' in that section cannot be read as meaning that the Magistrates Court did not have jurisdiction to deal with the particular matter before it at all before this Court can intervene. Instead, those words encompass all situations where the Magistrates Court acts in excess of jurisdiction, whether because it has no jurisdiction at all, or because it has exceeded the limits of the jurisdiction conferred on it by the Act.
24 That conclusion follows from the terms of s 36 of MC Act, which clearly contemplates the making of orders in the nature of certiorari, and the evident purpose of the s 36 of the MC Act, which is to establish an avenue for judicial review of decisions of the Magistrates Court. Furthermore, to construe s 26(2) of the Act in a narrow way, which does not encompass all of the grounds for judicial review which are available to this Court at common law, would result in the exclusion of this Court's supervisory jurisdiction in respect of many decisions of the Magistrates Court under the Act. Such an outcome would be liable to be at odds with the principles identified by the High Court in Kirk v Industrial Court of New South Wales.[14]
25 In my view, the words 'no jurisdiction' in s 26(2) of the Act mean that the Court must be satisfied that the Magistrates Court was acting in excess of the jurisdiction it had, or that it was acting without any jurisdiction at all. In short, s 26(2) confirms what is otherwise apparent, namely that the Court must be satisfied that the Magistrates Court has made a jurisdictional error. The purpose of s 26(2) is thus to confirm that the review of decisions under the Act pursuant to s 36 of the MC Act is not intended to be a de facto appeal process.[15]
26 The High Court in Kirk clarified the nature of jurisdictional error. In an application for a writ of certiorari, the Court may quash a decision made by a decision maker in the exercise of a statutory power if there is an error of law on the face of the record, or if it is established that the decision maker made a jurisdictional error. In the case of a decision made in the exercise of a statutory power, a jurisdictional error will exist if the decision which was made fell outside the parameters of the decision making power granted by the statute. An error of law in the construction of the statutory provision which is the source of the decision maker's power may give rise to a jurisdictional error if that construction causes the decision maker to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or to make an erroneous finding or to reach a mistaken conclusion.[16]
27 The grounds on which the review is sought in this case are:
5. The proper construction of s 75A of the Magistrates Court Act
28 At the heart of this review is the proper construction of s 75A and in particular, s 75A(1) of the Act. Section 75A provides:
(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.
(2) The court may, on an application made under this section, make such other orders or give such other directions as the court in the circumstances of the case thinks fit, including, if there has been a breach of the agreement, making any order that the court may make under section 15.
(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.
(5) Where a court terminates a social housing tenancy agreement under this section, it must also make an order for possession of the social housing premises and must specify a day as from which the orders are to operate that it considers, in the circumstances of the case, appropriate.
29 Three issues arise for determination as a result of the grounds of review. First, whether in the exercise of the power in s 75A(1), the Magistrates Court may consider only the question of termination and the behaviour of the tenant, as opposed to any other circumstances of the case. The second issue is whether the matters able to be considered for the purposes of s 75A(1) are subject to any temporal limitation. Finally, if the Magistrates Court determines that the tenant's behaviour 'justifies' the termination, whether the Magistrates Court has a residual discretion as to whether or not to order that the tenancy agreement be terminated and that the tenant give vacant possession.
30 The Housing Authority submitted[17] that the following is the process that the Magistrates Court is to undertake when dealing with an application to terminate under s 75A:
(a) first, the court is required to determine whether it is satisfied that a tenant has engaged in behaviour specified in s 75A(1)(a) to (c); second, if so satisfied, the court is required to determine whether it is satisfied that the behaviour justifies terminating the agreement ... .
(b) in making a determination at the second stage:
(c) if the Court is so satisfied ... the Court is required to terminate the agreement, [and has] no residual discretion ... .
31 I am unable to accept those submissions. As I explain below, it is unnecessary to consider the question whether the Court has a residual discretion.
32 In summary, for the reasons which follow, I have concluded that in exercising the power in s 75A(1), the Magistrates Court may take into account such circumstances of the case as it considers relevant to the question of whether the behaviour of the tenant justifies the termination of the tenancy agreement. That conclusion follows from the terms of s 75A(1) itself. It is confirmed by the legislative context, especially s 75A(4), and by the legislative history and purpose.
33 The same conclusion follows from an alternative construction of s 75A. That construction is that the task undertaken by the Magistrates Court under s 75A(1) is not discrete from the task the Court is required to undertake under s 75A(2). In other words, when the Court is considering whether the tenant's behaviour justifies termination, the Court is required to consider whether, instead of termination, some other order may be more appropriate in all of the circumstances of the case. That conclusion, in my view, follows from the ordinary meaning of the words used in s 75A(2) and is confirmed by the legislative context, particularly s 75A(3) and (4).
35 Finally, in my view, there is no warrant for concluding that any temporal limitation applies to the circumstances which may be taken into consideration by the Court. In short, the Court may take into account any circumstances up to the date of hearing.
36 In view of the conclusion I have reached on the construction of s 75A, the question of a residual discretion does not arise for consideration here.
38 It is appropriate to commence by considering the proper approach to statutory construction. The task of statutory construction begins and ends with the words of a legislative provision, but those words must be considered in their context, which includes the legislative history and the general purpose and policy of the provision. The starting point in that exercise of construction is to give the words used their ordinary meaning.[23]
39 The behaviour which may trigger an application under s 75A is set out in s 75A(1)(a) (c). The behaviour covered by the provision is of a very diverse nature, and ranges from the trivial, such as playing music a little too loudly at night sufficient to interfere with a neighbour's peace, to extremely serious criminal conduct.
40 What must be 'justified' is 'terminating the agreement'. Termination of a social tenancy agreement is a most significant step, with very significant ramifications for the tenant and for his or her family. Given that social housing is involved, the tenant may be unable, for financial or other reasons, to compete in the open market for residential tenancies. If a social housing tenancy is terminated, and the tenant is unable to obtain another lease, the prospect clearly exists that the tenant and his or her family will be left homeless.
41 In my view, it is not possible to make a determination of whether particular behaviour (of itself) 'justifies' terminating the lease agreement (that is, that it justifies the step of terminating the tenancy agreement). That implies that there is some sort of automatic correlation between particular behaviour and the step of terminating the tenancy agreement. That is clearly not the case, and even if it were so, the section provides no guidance as to where the line would be drawn.
42 How, then, does the Court determine if the tenant's behaviour justifies termination of the tenancy agreement? Clearly an evaluative judgment must be made. The section provides no express criteria for that evaluative judgment other than that the behaviour 'justifies' the termination of the agreement.
43 The ordinary meaning of the word 'justify', according to the Macquarie Dictionary Online, is 'to show an act to be just, right or warranted', and according to the Oxford Dictionary Online, 'to show or prove that something is right or reasonable'. The Macquarie Dictionary suggests that the word 'justify' is used in a legal context to mean 'to show a satisfactory reason or excuse for something done'.
44 Each of these ordinary meanings encompasses an element of reasonableness. A legal standard of reasonableness requires consideration of all of the relevant circumstances pertaining to the act, decision or conduct.[24]
45 Consequently, in my view, the legislature's use of the word 'justifies' in s 75A(1) conveys the meaning that the evaluative judgment required by the Court will be whether a reasonable lessor would regard the behaviour of the tenant as being sufficiently serious, having regard to all of the circumstances, that the termination of the lease, with all of the consequences that that will entail, can be considered just or right or warranted.
46 The circumstances which may be relevant to that assessment will vary, depending on the case. Clearly, all of the circumstances relating to the behaviour itself will be relevant. Counsel for the Housing Authority accepts that that is necessarily the case. It will be necessary to take into the account the nature of the behaviour, the objective seriousness of it, the extent to which it has actually interfered with the quiet enjoyment by other residents of their places of abode; whether the behaviour was recurring, and if so, the frequency of those recurrences; whether there were any triggers or causes of the behaviour, such as the presence of another person apart from the tenant at the residence; and whether the behaviour is ongoing as at the date when the evaluative judgment by the Court is undertaken.
47 So, too, in my view, will it be necessary to consider the implications of terminating the agreement for the tenant and his or her family. Of relevance here would be considerations such as the age, health and financial position of the tenant; whether the tenant has children or other dependents living with him or her; and whether, having regard to those matters, the tenant is likely to experience difficulty in securing alternative accommodation.
48 The requirement of reasonableness which is inherent in the requirement that termination be 'justified' also requires all other relevant circumstances to be taken into account. By way of example, the duration and history of the tenancy are likely to be relevant factors to take into account. A one-off incident of serious behaviour in the context of an unblemished tenancy of many years' duration may be of a very different complexion to the same conduct engaged in by a tenant whose tenancy has been of a very short duration.
49 The conclusion that I have reached regarding the meaning of the word 'justifies' receives some support from the fact that the task of determining whether the behaviour 'justifies' terminating the tenancy agreement is entrusted to a Court, and requires the Court to be 'satisfied' that the tenant has engaged in behaviour which justifies terminating the agreement. As counsel for Ms Wallam pointed out, by entrusting that task to the Court the legislature anticipated that the Court would bring to bear the ordinary approach of courts to the exercise of judicial discretion, and which is commonplace in decisions involving a range of considerations of this kind.
50 The ordinary meaning of the words used in s 75A(1) is confirmed by reference to the immediate legislative context. Subsection 75A(3), in my view, makes clear that it is not just the behaviour in and of itself which is to be considered for the purposes of s 75A(1). Section 75A(3) confirms that factors such as whether the behaviour was recurrent and the frequency of recurrences of the behaviour will be relevant.
51 Further, and more significantly, s 75A(4) is a clear indication that the legislature contemplated that s 75A(1) would involve consideration of a range of issues. That subsection confirms that the reference to the recurrence of behaviour, as one example, is not intended to limit the other issues to which the Court may have regard in undertaking the task entrusted to it under s 75A(1).
52 In my view, the presence of s 75A(4) provides a powerful express confirmation of the fact that all of the circumstances that the Court considers relevant in a particular case will be taken into account in determining whether termination of the tenancy agreement is justified that is, that it is just, right or warranted, or right or reasonable in light of the occurrence of particular behaviour.
53 In my reasons in Blanket v the Housing Authority,[25] I considered the legislative context of the Act's provisions concerning termination generally. It is unnecessary to repeat that discussion here. As that discussion noted, and as counsel for Ms Wallam has also pointed out, under the Act there are a variety of means for terminating tenancies. These apply, unless the contrary is specified, to social tenancy agreements. Nothing in that broader context detracts from the view I have reached as to the construction of s 75A(1), having regard to the ordinary meaning of the words in that subsection.
54 The argument advanced by counsel for the Housing Authority relied heavily on the fact that the words 'all of the circumstances of the case' appear in other provisions of the Act but not in s 75A(1). He submitted that that supported the conclusion that the matters to be considered under s 75A(1) were confined to those expressly mentioned. In support of that contention, counsel for the Housing Authority also submitted that the only provisions in s 75A that directed the Court's attention to 'all of the circumstances of the case' were s 75A(2) and s 75A(5), and that an assessment of surrounding circumstances was not directed by the inquiry as to whether 'the behaviour justified termination'.[26] Further, he noted that s 75A only asks the Court to consider 'whether the behaviour justifies termination'. In contrast, he pointed to s 71(2) of the Act, where the Court is asked to decide whether 'the breach is in all the circumstances such as to justify termination of the agreement', by reference to an express list of matters the Court can consider in determining the application for termination. He submitted that the significant difference in wording in s 75A(1) evinced a statutory intention that the Court was not to consider all of the circumstances of the case in making the evaluation that that section requires.[27]
55 I am unable to accept those submissions. In my view, the absence of any reference to 'all of the circumstances of the case' in s 75A(1) is not determinative against the construction I prefer. The use of that phrase would merely confirm the construction which, in my view, arises from the requirement that the behaviour 'justifies' termination in any event.
56 In addition, to my mind, it is not clear that the legislature has used a consistent approach throughout the Act. It is not the case, for example, that the phrase 'in all of the circumstances' is used where there is a general discretion, but not used otherwise. Under s 71(2) for example, the Court 'shall ... make an order terminating' a tenancy agreement where it is satisfied of certain things. One of those things is that the breach is, 'in all the circumstances', such as to justify termination. It is apparent from s 71(3C) that in considering an exercise of power under s 71(2) with respect to social tenancy agreements, the Court is required to consider the range of circumstances of the case.
57 Further, counsel for the Housing Authority accepted that under s 75A(1) the Court must look beyond just the fact that the behaviour occurred in order to determine if it justifies termination. As I have already mentioned, counsel accepted that the Court would need to take into account the quality or nature of the behaviour, its seriousness, its significance in the context of the tenant's various obligations under the tenancy agreement, the fact that termination was the ultimate sanction that could be taken against a tenant, the fact that other remedies apart from termination might be employed to deal with that behaviour, the explanation for the breach or the conduct, and the question of recurrence of the conduct. To my mind, those matters include a range of circumstances apart from the fact that the tenant engaged in particular conduct. It is not clear why those circumstances should be relevant to the evaluative judgment required, but that other circumstances, such as the tenant's rectification of problems leading to the behaviour, or the impact of termination on the tenant and on the tenant's dependents, are not able to be considered.
58 Section 75A was included in the Act as part of a package of amendments in the Residential Tenancies Amendment Bill 2011 (the Bill) which dealt with social housing tenancies. The Housing Authority placed considerable emphasis on the second reading speech and the explanatory memorandum for the Bill. In particular, the Housing Authority noted that the phrase 'all of the circumstances of the case' was not mentioned in the explanatory memorandum for the amendments, and that the explanatory memorandum made no reference to the Court exercising a discretion having regard to other matters, aside from 'the behaviour' of the tenant.[28]
59 In my view, the extrinsic materials, namely the second reading speech, the explanatory memoranda and the parliamentary debates in relation to the Bill may be taken into account by the Court in determining the meaning of s 75A, because they confirm the ordinary meaning of the words used, having regard to the context and purpose of the subsection.[29]
60 The Housing Authority highlighted the fact that the Bill inserted provisions into the Act which were specifically applicable to social housing agreements, and that s 75A was inserted as a new ground for the termination of social housing agreements.[30] Counsel for the Respondent submitted that the evident purpose of s 75A was 'to facilitate the expansion, and expeditious obtaining, of remedies against social housing tenants who engage in serious or recurrent inappropriate behaviour in connection with their tenancy that justifies the termination of their tenancy'.[31]
61 In the second reading speech for the Bill, the then Minister for Transport, Mr Buswell MLA, said:[32]
The second key feature of the bill is the inclusion of amendments to address antisocial behaviour in social housing provided by the Department of Housing. Social housing presents many challenges. The vast majority of social housing tenants greatly respect their homes and their neighbours. However, those social housing tenants who engage in serious or sustained disruptive behaviour at their homes or who use their homes for illegal purposes should be made aware that this behaviour is not acceptable. They will need to improve their behaviour or have the privilege of a low cost rental property taken away. The Bill provides for a transparent process for dealing with serious or sustained disruptive behaviour and illegal activity on the premises. The Department of Housing will be able to apply to the Magistrates Court if a tenant has engaged in serious or sustained disruptive behaviour or used their home for illegal purposes without first having to issue the tenant with a notice of breach of the tenancy agreement. In deciding if the behaviour justifies terminating the agreement, the court may have regard to whether the behaviour was recurrent, the frequency of any recurrences and the seriousness of the behaviour. The court must be satisfied that grounds exist for the application and that the behaviour justifies terminating the tenancy agreement.
62 In my view, two things flow from the Minister's remarks. First, that passage highlights what in my view is the key objective behind s 75A, namely that it permits the Housing Authority to apply to the Court for an order terminating the tenancy agreement without having to comply with the existing avenues for terminating the agreement, which would require notice to be given to the tenant.[33]
63 Secondly, while the Minister indicated that the Court may have regard to three things in determining whether the behaviour justified the termination, that list did not purport to be exhaustive. Moreover, the Minister's observations acknowledged aspects of the evaluative judgment involved. The application to terminate may be made if the tenant has engaged in 'serious or sustained disruptive behaviour' (which are not the words used in s 75A(1)). In other words, underlying the Minister's remarks was the assumption that the character and seriousness of the tenant's behaviour must be taken into account, and that it would not be the case that any illegal behaviour or interference with the neighbour's peace would justify termination.
64 The explanatory memorandum for the Bill, in essence, restates the contents of s 75A and is of little additional assistance.
65 What is of particular significance to the construction of s 75A are the parliamentary debates in relation to the Bill, and especially what that debate discloses about how s 75A was expected to operate. By way of example, an amendment to the Bill was proposed to include a new cl 76B(AA), which would require that in making a decision to terminate under s 73, s 74, s 75A or s 75, the Court would take into account the impact of termination of the agreement on any children at the property. In opposing that amendment, the response of the Minister was as follows:[34]
Mr Buswell: ...the proposed section 75A(4) specifically says that proposed subsection (3) does not limit the issues to which the court can have regard...the court will have regard to a range of matters. It will take some time for the practical application of those matters to which the court has regard to filter through into practice.
Ms Freeman: Do you think the court should have regard for the impact on the children of the family?
Mr Buswell: That is a matter for the courts to determine.
Ms Freeman: But you don't think it is a matter that you can put on record that the court can look at.
Mr Buswell: That is a matter for the court to determine, because there are so many varying circumstances...
66 Similarly, later in the debate, an amendment was proposed which would require that in considering whether the tenancy agreement should be terminated, the Court consider whether the tenant was the victim of domestic violence. Again the Minister responded that the amendment was not necessary as[35]
it is still our view that the technicalities of the section are such that proposed s 75A(4) will give the court more than adequate capacity to take into account issues to which the court may choose to have regard. It is not for me to predetermine how the courts use [the power in s 75A(4)], but I suspect that will include issues such as domestic violence and mental illness, and the situation with children.
proposed section 75A(4) does not limit the issues to which the court may have regard. That leaves it open for people to make representations to the court on a whole variety of issues, including domestic violence.
67 Each of the proposed amendments to which I have referred was rejected. The debates indicate that the view of the executive government at the time, in proposing the Bill, was that s 75A(4) would permit consideration of factors such as the impact of termination on others, including children who might live at the property. That is consistent with the view that in the evaluative exercise required by s 75A(1), the Court may take into account any circumstances of the case as may be relevant to the decision whether to terminate the agreement (or to take some other action).
68 Finally, it is appropriate to make mention of some relevant authority in relation to the issues under consideration. Counsel did not suggest that there was any authority determinative of the issues before the Court. However, two authorities in particular have some bearing on the issues under consideration.
69 The first is the decision of Justice McKechnie in Lawrence, to which I have already referred. In that case, his Honour made the observation that what was involved in making an assessment under s 75A was a twostage process.[36] There was no issue as to the first stage in that case. The Applicant had clearly engaged in using or permitting the social housing premises to be used for an illegal purpose. His Honour then observed that, at the second stage, 'it was relevant to consider the extent and seriousness of the [behaviour] weighed against other matters which might affect the exercise of the discretion'.[37] His Honour concluded the Magistrate had done that. Although his Honour was not required, having regard to the issues in dispute in that case, to consider what those 'other matters' might be, nothing in his Honour's observations suggests that he had any doubt about the Magistrate weighing 'other matters' against the extent and seriousness of the behaviour involved.
70 Similarly, in Hamilton, Justice Mitchell made a number of remarks by way of obiter in relation to the nature of the decisionmaking process under s 75A(1). In that case, the learned Magistrate had taken into account all of the material and all of the circumstances that existed at the time of the hearing, to determine whether termination was justified.[38] His Honour noted that the learned Magistrate took into account the position at the time of hearing, rather than at the time of the behaviour, and that she took into account all of the circumstances of the case.[39] As his Honour made clear, that was not a case where it was in issue whether the learned Magistrate was entitled to take into account circumstances other than the behaviour itself, or whether the evaluative judgment involved an analysis at the time the Court heard the application.[40] Nevertheless, nothing in his Honour's obiter observations about the process undertaken by the learned Magistrate suggested any doubt on his part as to the correctness of that approach.
71 Finally, I should mention a case to which the parties made particular reference, namely, the decision of the New South Wales Court of Appeal in Cain.[41] There were very significant legislative differences between the provision considered in that case and s 75A. Notwithstanding the submissions of counsel, in the end I have concluded that nothing in that case assists in the construction of s 75A of the Act.
(f) An alternative construction of s 75A(1), when read in conjunction with s 75A(2) of the Act
72 In my view, an alternative construction of s 75A(1) is open, namely that it operates in conjunction with s 75A(2). This alternative construction requires both s 75A(1) and (2) to be read together, so that together they define the one exercise in which the Court must engage. The result of this approach to construction is the same as that outlined above, namely that all relevant circumstances will be taken into account in determining whether the behaviour justifies termination.
73 Understood in this way, the Court is asked to consider whether particular behaviour by the tenant justifies terminating the tenancy agreement, but in making that evaluative judgment, the Court can consider whether, instead of termination, some other order should be made. (For the avoidance of doubt, I observe that the Court may also make orders additional to termination pursuant to s 75A(2)).
74 Several considerations appear to me to support this construction. First, this construction follows from the opening words s 75A(2) ('The Court may, on an application under this section'). That is, on an application under s 75A(1), the Court may make such other orders or give such other directions as the Court in the circumstances of the case thinks fit. That suggests that the consideration whether to make other orders is to take place at the same time as consideration of the question whether the termination of the tenancy agreement is justified.
75 Secondly, the balance of the words in s 75A(2) also supports this construction. The Court, on an application under s 75A(1), may make 'such other orders or give such other directions as the Court in the circumstances ... thinks fit'. According to the Macquarie Dictionary, the adjective 'other' means 'additional or further', 'different or distinct from the one or ones mentioned', and refers to 'some person or thing else'. Accordingly, s 75A(2) makes clear that on an application under s 75A(1), the Court is not confined to making an order for termination, or ancillary orders in addition to termination (such as the repayment of rental arrears), but may make orders different or distinct from termination. In my view, that conveys that the Court is able to make orders in the alternative to termination, rather than merely orders ancillary to termination.
76 Thirdly, that construction is also supported by the immediate legislative context. Section 75A(3) provides that 'in deciding if the behaviour justifies terminating the agreement or making any order or giving any direction referred to in subsection (2)'. That subsection contemplates that the Court is, in effect, making one decision and that decision is directed to whether either termination, or some other order, is an appropriate response to the behaviour identified.
77 Fourthly, that construction is supported by the words in s 75A(2) when read within their broader legislative context. Section 75A(2) notes that the other orders or directions the Court may make include, in a case where there has been a breach of the tenancy agreement, any order that the Court may make under s 15 of the Act. The orders the Court may make under s 15 include, amongst other things, orders to restrain any action in breach of the agreement or to require any action in performance of the agreement. Such orders would be of no utility in a case where the Court had decided to terminate the agreement. That being so, the power to make orders in s 75A(2) cannot be construed as merely ancillary to an order for termination under s 75A(1). Instead, the orders which may be made under s 75A(2) must be read as encompassing orders made in the alternative to termination, as well as orders in addition to termination.
78 I have observed that this construction, which sees s 75A(1) and (2) as part of the one process, constitutes an alternative to the construction outlined above which focuses on the meaning of s 75A(1), as applied separately from s 75A(2). The alternative construction to which I have referred was not advanced by counsel for Ms Wallam. However, it was a construction which I raised with counsel for the Housing Authority in the course of his submissions.
79 Counsel for Ms Wallam contended that, in effect, a three-stage process was required by s 75A. The first stage, he submitted, is to determine if the behaviour by the tenant is established, the second is to determine whether that behaviour justifies termination, taking into account all relevant circumstances, and the third stage is to determine whether an order for termination or some other order should be made. In the end, I doubt that there would be any practical difference in outcome between the alternative construction to which I have referred which sees s 75A(1) and (2) working hand in hand and that advanced by counsel for Ms Wallam, which sees a separate consideration of s 75A(2), after the question under s 75A(1) is determined.
80 Finally I should observe that the alternative construction I have identified namely that s 75A(1) and (2) operate hand in hand is not contrary to any authority. While McKechnie J identified a two-stage approach in Lawrence, that was a case in which the learned Magistrate ordered termination of the tenancy, and the ground of review was that that involved a denial of natural justice. It was not necessary for his Honour to consider what matters could or should be taken into account in determining what his Honour described as the 'second stage' of the decision-making process under s 75A.
6. The proper construction of s 75A in relation to temporal limitations
81 Finally, I deal with the question whether there is any temporal limitation to the considerations which may be taken into account in determining whether the tenant's behaviour justifies terminating the tenancy agreement. In my view, there is nothing in s 75A to suggest that the Court is limited to considering only the circumstances in existence at the date the application under s 75A is made to the Court. Furthermore, if, as I have concluded, all circumstances relevant to the question whether the behaviour justifies termination may be considered, there is no sound reason why those circumstances should be confined to those in existence at the date of the application to the Court. I did not understand counsel for the Housing Authority to dispute that conclusion (in the event that I was against him on the construction of s 75A(1)).
7. Conclusions in respect of the grounds of review, and the orders which should be made
82 In view of the conclusion I have reached, it is unnecessary to deal with the final issue raised on Ms Wallam's behalf, namely whether the Court retains a residual discretion whether to order termination, even if it considers that the behaviour of the tenant justifies terminating the tenancy agreement.
83 I turn, then, to the relief which should be granted. In my view, the decision of the learned Magistrate should be set aside. It is evident from the Reasons, outlined above at [14] [19], that the learned Magistrate was of the view that she could not consider any circumstances aside from the behaviour which was relied upon by the Housing Authority as justifying the termination of the tenancy agreement. In this respect, in my respectful view, the learned Magistrate made a jurisdictional error in that she misconstrued the nature of the jurisdiction conferred by s 75A(1) of the Act.
84 Contrary to the submission of counsel for Ms Wallam, it is my view that the appropriate course is to remit the matter to the Magistrates Court for further determination. I see no reason why the matter could not be remitted to the same Magistrate. I have concluded that it is appropriate to remit the matter to the Magistrates Court because, consistent with the view I have taken, the factors or circumstances which may be relevant to the decision whether Ms Wallam's behaviour 'justifies' terminating the tenancy agreement will include all of those up to the time that the Court makes its decision on the application. It is not clear to me whether there might be other evidence which would now be relevant to that determination, but in the event that there might be, it is appropriate for the Magistrates Court to reconsider the question.
[11] Rayney v AW [2009] WASCA 203 [27] (McLure JA, Buss JA & Newnes JA agreeing).
[12] Rayney v AW [2009] WASCA 203 [27] (McLure JA, Buss JA & Newnes JA agreeing).
[13] Rayney v AW [2009] WASCA 203 [28], [32], [33] (McLure JA, Buss JA & Newnes JA agreeing).
[14] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
[15] See also Residential Tenancies Act 1987 (WA) s 26(1); Re Michelides; Ex parte Chin [2010] WASC 169 [32] (K Martin J).
[16] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [56]; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (the Court).
[17] Housing Authority submissions [11].
[18] Housing Authority submissions [11(b)(i)].
[19] Housing Authority submissions [11(b)(ii)].
[20] Housing Authority submissions [11(b)(iii)].
[21] Re Chief Magistrate Steven Heath; Ex parte Lawrence [2014] WASC 130.
[22] Re Magistrate E A Hamilton; Ex parte The Housing Authority [2015] WASC 76.
[23] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ); Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
[24] State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 [167] (Kirby J); Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 365 (Mason CJ, Gaudron J), 410 (McHugh J); In re a Solicitor [1945] 1 KB 368, 371 (Scott LJ).
[25] Blanket v The Housing Authority [2014] WASC 409.
[26] Housing Authority submissions [11(c)], [11(d)].
[27] Housing Authority submissions [15].
[28] Housing Authority submissions [17] fn 6.
[30] Housing Authority submissions [6].
[31] Housing Authority submissions [6], [9], [32].
[32] Western Australia, Parliamentary Debates, Legislative Assembly, 18 May 2011, 3584-85 (Troy Buswell).
[33] See, for example, Residential Tenancies Act 1987 (WA) s 62 and s 64.
[34] Western Australia, Parliamentary Debates, Legislative Assembly, 6 September 2011, 6827 (Troy Buswell).
[35] Western Australia, Parliamentary Debates, Legislative Assembly, 6 September 2011, 6838 (Troy Buswell).
[36] Re Chief Magistrate Steven Heath; Ex parte Lawrence [2014] WASC 130 [23].
[37] Re Chief Magistrate Steven Heath; Ex parte Lawrence [2014] WASC 130 [23].
[38] Re Magistrate E A Hamilton; Ex parte The Housing Authority [2015] WASC 76 [16].
[39] Re Magistrate E A Hamilton; Ex parte The Housing Authority [2015] WASC 76 [18], [19].
[40] Re Magistrate E A Hamilton; Ex parte The Housing Authority [2015] WASC 76 [39].
[41] Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28.
(2010) 241 CLR 252
(1997) 187 CLR 384
(1991) 173 CLR 349
(2010) 239 CLR 531
(2006) 230 CLR 174
(1995) 184 CLR 163
(2014) 250 CLR 664
(2012) 250 CLR 503