RE MAGISTRATE STEVEN MALLEY; EX PARTE THE HOUSING AUTHORITY [2017] WASC 193 (19 July 2017)

2 The Authority has applied under s 36 of the Magistrates Court Act 2004 (WA) for a review order requiring the magistrate to satisfy the court that the decision should not be set aside and for an order that the decision of the magistrate be set aside. The Authority says that the magistrate misconstrued s 71(3)(b)(i) of the RTA in finding that he was satisfied that the Authority was motivated to give the termination notice by the fact that the tenant had taken steps to secure or enforce his rights as a tenant.

3 The central issue is whether actions taken by a tenant in the defence of termination proceedings brought under the procedures set out in the RTA amount to the tenant 'tak[ing] steps to secure or enforce his [or her] rights as a tenant', thus enlivening the reversal of the onus of proof in s 71(4) of the RTA? The applicant argues that this question should be answered in the negative. Tenancy WA, appearing by leave as amicus curiae, argues that, properly construed, defending an application to terminate one's tenancy does constitute taking steps to secure or enforce one's rights as a tenant. A second issue is whether 'motivated' in s 71(3)(b)(i) requires that the fact that the tenant has taken the relevant steps is an actual or operative reason for the lessor giving the notice, as submitted by the Authority, or whether it is sufficient that there is a causal link between the fact of the tenant taking the steps and the lessor giving the notice, as submitted by Tenancy WA. A third issue is whether the magistrate failed to accord the Authority procedural fairness by failing to give the Authority a reasonable opportunity to make submissions and adduce evidence in relation to the potential application of s 71(3)(b)(i) of the RTA prior to dismissing the Authority's application.

4 For the reasons which follow, I have concluded that defending termination proceedings brought under s 71 does not amount to taking 'steps to secure or enforce [one's] rights as a tenant'. Further, the magistrate wrongly construed 'motivated' in s 71(3)(b)(i) to be satisfied by a causal link and failed to enquire whether the fact that the tenant took the relevant steps was an actual or operative reason for the Authority giving the notice. The magistrate made a jurisdictional error in misconstruing s 71(3)(b)(i) of the RTA. Furthermore, the magistrate failed to afford the Authority procedural fairness before dismissing its application pursuant to s 71(3)(b)(i) of the RTA. The magistrate's decision will be set aside and the matter remitted to the Magistrates Court for hearing by a different magistrate.

Authority applies to terminate lease and for possession of premises

5 The Authority let premises in North Fremantle to the tenant under an agreement which created a periodic tenancy in accordance with the RTA. On 20 July 2015 the Authority issued to the tenant a final strike notice for disruptive behaviour. The notice stated that the Authority was satisfied that the tenant had engaged in disruptive behaviour on 21 June 2015 and will now be applying to the Magistrates Court for the termination of the tenancy agreement under the RTA.

6 On 24 July 2015 the Authority applied to the Magistrates Court for an order terminating the tenancy agreement and that the tenant give vacant possession of the premises to the Authority. The application stated that it was brought 'because the tenant has engaged in objectionable behaviour breaching s 75A of the RTA'. Section 75A of the RTA provides that a court may, upon application by the lessor under a social housing tenancy agreement, which the tenancy agreement was, terminate the agreement if it is satisfied the tenant has, amongst other things, caused or permitted a nuisance by the use of the premises or 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. The Authority filed and served a statement of claim which particularised the objectionable behaviour. The tenant filed and served a response which denied or justified his alleged objectionable behaviour.

7 An officer of the Authority recommended withdrawing the application under s 75A of the RTA and proceeding with alternative action under RTA s 64 by giving the tenant 60 days to vacate the premises. The stated reason for the recommendation was that two witnesses who had reluctantly agreed to attend court were afraid of retribution and had indicated they are unlikely to return to give evidence at court. The recommendation was part of a briefing note to the Acting Director General from the Acting Director Client Services. The briefing note stated that approval was sought to proceed with the termination of the tenancy under s 64 of the RTA. The briefing note stated that the grounds were that the tenant has reached maximum strike action against his tenancy in accordance with the Authority's 'Disruptive Behaviour Management Strategy'. The briefing note set out particulars of complaints of disruptive behaviour against the tenant. The Authority accepted the recommendation. The Magistrates Court granted the Authority leave to withdraw the application.

Authority gives termination notice under section 64

8 Section 64 of the RTA provides that a lessor may give notice of termination of a tenancy agreement to the tenant without specifying any ground for the notice. The section provides that where a lessor gives notice of termination under the section, the period of notice must be not less than 60 days before the day on which the tenant is required under the notice to give to the lessor possession of the premises.

9 On 24 March 2016 the Authority gave notice to the tenant of termination of his tenancy agreement requiring him to deliver vacant possession of the premises by 31 May 2016. The tenant did not vacate the premises within the period specified in the notice of termination. The Authority lodged an application under s 71 of the RTA for orders terminating the tenancy and for vacant possession of the premises.

10 On 5 July 2016 the Authority's application came before the magistrate for hearing. Neither party was legally represented. The magistrate conducted the hearing informally. The magistrate stated to the tenant that he had a periodic tenancy and a 60 day notice had been served upon him and because he is on a periodic tenancy, the RTA provides that the Authority can terminate it upon giving due notice. The magistrate stated: 'We're here to find out why should that not occur'. The tenant then made statements to the effect that the Authority withdrew the original application and relied upon the 60 day termination notice and the allegations upon which the s 75A application was based were grossly exaggerated.

11 There was then an exchange between the magistrate and the representative of the Authority. The magistrate stated that the termination has not occurred because the Authority has suddenly decided that they want the house. The Authority representative stated that the mechanism which the Authority originally chose was the s 75A application but the Authority was unable to proceed because it did not have witnesses who were prepared to come to court and so the Authority decided to proceed with termination under s 64. The Authority representative said that the allegations regarding the tenant's conduct were so serious that the Authority felt it necessary to continue with the termination. The magistrate then stated:

Yes. But [the Authority] can't prove them ... otherwise, you would proceed under section 75 if you could prove them, but anyway, I understand what you're saying ...

The tenant then made statements about the Authority's representative's statement that witnesses did not wish to give evidence because of fear of retaliation and intimidation. The magistrate then said he would take a short adjournment and give his decision.

12 After a short adjournment the magistrate gave his reasons for decision which are to the following effect. RTA s 64(3) provides that after receiving a notice of termination under s 64, if a tenant is of the opinion that the grounds set out in s 71(3)(b)(i) apply, the tenant may apply to a court for an order that the tenancy agreement is not terminated as a consequence of the notice given under s 64. Section 71(3)(b)(i) provides that the court may refuse to make an order terminating the agreement and an order for possession of the premises if it is satisfied that the lessor was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce his rights as a tenant. The tenant has not made such an application but he is objecting based on the grounds as provided in s 71(3)(b)(i) that the lessor was wholly or partly motivated to give notice by the fact that the tenant had taken steps to secure and enforce his rights as a tenant. That is exactly what happened. The Authority's representative 'makes no bones about it'. The Authority applied for termination under RTA s 75A. The tenant opposed the application and disputed the allegations. The Authority was unable to 'put their money where their mouth is' and the application was withdrawn and the tenant was, effectively, denied the opportunity to be heard in relation to those allegations. The present application is, effectively, motivated by the allegations made by others against the tenant which he can no longer dispute. The tenant sought to secure or enforce his rights in defending those matters and those actions brought about the present notice. In those circumstances the application is refused. In this case the Authority's motivation is obvious and should not be condoned.

13 The Authority applies under the Magistrates Court Act s 36 for an order setting aside the order of the magistrate dismissing its application under s 64 of the RTA and in lieu of that order ordering that the tenancy agreement be terminated or alternatively that the proceedings be remitted to the Magistrates Court, differently constituted, for determination according to law.

14 There are three grounds of the application. The first ground is that the magistrate made a jurisdictional error in that he misconstrued s 71(3)(b)(i) of the RTA and thereby misconceived the nature of the court's function and extent of its power or alternatively purported to act in circumstances where the requirements of s 71(3)(b)(i), being a jurisdictional fact, did not exist. The second ground, which was alternative to the first, is that the magistrate made a jurisdictional error in that he purported to make the order dismissing the Authority's application without having first considered and made a determination as to whether he should exercise his discretion under s 71(3)(b)(i) to refuse to make the orders under s 71(2) which is a mandatory consideration preconditioning the existence of the power to refuse to make an order under s 71(2). The third ground is that the magistrate made a jurisdictional error in that he failed to accord the Authority procedural fairness in that he failed to adequately direct the Authority's attention to, and afford the Authority a reasonable opportunity to make submissions and adduce evidence in relation to, the potential application of s 71(3)(b)(i) of the RTA before making an order dismissing the Authority's application.

15 The Authority applied for a review order by an originating motion filed on 16 September 2016. On 13 October I ordered the applicant to serve upon the tenant the originating motion, the supporting affidavits and a copy of the order which included an order that any person with an interest in the matter who wished to appear must file and serve notices of appearance within 10 days of service of the documents. The documents and a copy of the orders were served on the tenant. At a further directions hearing on 27 October I further adjourned the matter to allow time for any response by the tenant. A further directions hearing occurred on 3 November. No notice of intention to appear had been filed by the tenant. I made orders setting the matter down for a substantive hearing on 2 December. I also ordered that any party appearing in response to the application should file and serve any submissions and affidavits by 17 November. The hearing of the applicant's motion took place on 2 December. The Applicant, through counsel, read its written submissions and made further oral submissions. There was no appearance by any other party.

16 On 23 December Tenancy WA filed a notice of motion for leave to present written submissions as amicus curiae and oral submissions, if the court desires, touching on the matters in issue in this proceeding. Tenancy WA also filed written submissions dated 23 December 2016 entitled 'amicus curiae's outline of submissions in support of leave to be heard as amicus curiae, and submissions to assist the court'. At the invitation of the court the Authority filed an outline of submissions dated 11 January 2017 in response to Tenancy WA's application to be heard as amicus curiae.

Tenancy WA's application to make submissions as amicus curiae

17 In essence Tenancy WA sought leave to make submissions as amicus curiae on the grounds that the proper interpretation of RTA s 71(3)(b)(i) is the subject of conflicting decisions in the Magistrates Court and is a matter of public importance, there was no contradictor at the hearing of the Applicant's application and Tenancy WA wishes to assist the court by making submissions in relation to the proper interpretation of RTA s 71(3)(b)(i) and the issue in relation to natural justice raised by the Applicant in its grounds of application.

18 The Authority opposed leave being granted to Tenancy WA to make submissions or adduce evidence as amicus curiae. In particular the Authority submitted that leave should be refused in relation to new issues sought to be advanced by Tenancy WA in relation to:

(a) whether the tenant complained to a public authority, and whether the burden under RTA s 71(4) was thereby enlivened; and

(b) whether the Authority was represented by a 'legally qualified person' before the Magistrates Court.

19 In essence the Authority submitted that leave should be refused because of delay by Tenancy WA in applying for leave and the further costs that will be incurred and further delay likely to be caused before a resolution of the matter if leave is granted. The Authority says that in any event leave should be refused to make submissions in relation to the New Issues because arguments in relation to those issues were:

(a) not positively advanced by the tenant before the Magistrates Court;

(b) not considered by the magistrate and not the subject of the magistrate's decision; and

(c) not sought to be advanced by the tenant either by way of his own application for review or by seeking to raise the issues in opposition to the current application and in support of the magistrate's decision.

20 I granted Tenancy WA leave to make written submissions as amicus curiae on the matters in issue in this proceeding but not to make submissions in relation to the New Issues. I ordered that Tenancy WA's written submissions of 23 December 2016 should stand as the submissions of Tenancy WA on the matters in issue in this proceeding excluding those paragraphs which refer to the New Issues. I granted the Authority leave to file and serve written submissions in reply to the submissions of Tenancy WA. I granted leave for Tenancy WA to make written submissions by its solicitor for the following reasons.

21 In Levy v State of Victoria [1997] HCA 31; (1997) 189 CLR 579 Brennan CJ observed:

The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted ...

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected (604 605). (footnotes omitted)

22 Tenancy WA submitted, and I accept, that this case is likely to set a precedent which will affect the use of RTA s 64 'without grounds' termination notices. The proper interpretation of RTA s 71(3)(b)(i) is the subject of conflicting decisions in the Magistrates Court and is a clear issue in this case. On the hearing of the application there was no contradictor. Tenancy WA has put forward submissions in relation to the proper interpretation of RTA s 71(3)(b)(i) and in relation to the ground of breach of natural justice that are not otherwise before the court. The court is significantly assisted by the submissions of Tenancy WA. Allowing Tenancy WA to make written submissions incurred further costs to the Applicant in making submissions in response. The court has been delayed in delivering its decision by the need to consider the submissions of Tenancy WA and to await and then consider the reply submissions from the Applicant. However, the cost to the applicant and the delay is not disproportionate to the assistance given to the court. Indeed, the assistance to the court by the submissions of Tenancy WA outweighs the cost to the parties and delay by allowing Tenancy WA to make written submissions as amicus curiae.

23 I gave leave to Tenancy WA to make submissions as amicus curiae notwithstanding that it has taken a partisan role in these proceedings and notwithstanding its delay in applying for leave to make submissions as amicus curiae. Tenancy WA became aware of these proceedings on 1 December 2016, the day before the hearing of the application, and attended the court to observe argument at the hearing. Tenancy WA then contacted the tenant to offer legal advice. The tenant instructed Tenancy WA that he did not wish to participate in the proceedings and Tenancy WA ceased to act for him. The written submissions made by Tenancy WA are unequivocally opposed to the application and the arguments advanced by the Authority in support of its application. However, the Authority advanced comprehensive argument in support of the application and the court is assisted by the arguments advanced by Tenancy WA in opposition to the application.

24 I refused leave to make submissions in relation to the New Issues. It is in the public interest that there be an end to litigation and that matters in the court should be managed and determined with a view to promoting the just resolution of litigation, disposing efficiently of the business of the court and maximising the efficient use of available judicial and administrative resources and the associated principles enshrined in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA): Legal Practitioners Complaints Committee v Camp [No 2] [2010 WASC 207 [9] (EM Heenan J). The New Issues raise factual and legal issues relating to the application by the Authority in relation to this tenant and are not matters of general application. The tenant has not raised those matters either before the magistrate or before this court and they were not considered by the magistrate. It is not appropriate for those New Issues to be raised for the first time by an amicus curiae.

25 The magistrate found that he was satisfied that the Authority was motivated to give the termination notice by the fact that the tenant had taken steps to secure or enforce his rights as a tenant. The Authority says that in making that finding the magistrate misconstrued s 71(3)(b)(i) of the RTA.

26 To be satisfied that the Authority was motivated to give the termination notice by the fact that the tenant had taken steps to secure or enforce his rights as a tenant, the magistrate must be satisfied:

(1) the tenant had taken steps to secure or enforce his rights as a tenant; and

(2) the lessor was wholly or partly motivated to give the notice of termination by the fact that the tenant had taken those steps.

To determine if those conditions were satisfied, it is first necessary to identify the steps taken by the tenant to secure or enforce his rights as a tenant. The magistrate found that those steps were the steps taken by the tenant to defend the earlier application brought by the authority for an order terminating the tenancy on the ground of objectionable behaviour by the tenant under s 75A. The Authority says, properly construed, s 71(3)(b)(i) of the RTA does not extend to steps by a tenant to defend proceedings taken by a lessor in exercise of its rights to seek to terminate a tenancy agreement and obtain possession of let premises from a tenant.

27 The Authority says that the magistrate's finding that the Authority was motivated to give the notice of termination by the fact that the tenant had taken steps to defend the earlier application brought by the Authority for an order terminating the tenancy on the ground of objectionable behaviour under s 75A discloses a further error of law. The magistrate found that in giving the notice under s 64 the Authority was motivated by the allegation made by others against the tenant and it wished to terminate the tenancy and was unable to obtain an order terminating the tenancy under s 75A because witnesses of the alleged objectionable behaviour declined to give evidence and in the absence of the evidence the Authority would not be able to establish the objectionable behaviour. The Authority says that that finding is not capable of leading to the finding that the Authority was wholly or partly motivated to give the notice of termination by the fact that the tenant had taken steps to defend the earlier proceedings.

28 There are two interpretation issues. First, the Authority says that the term 'rights as a tenant' in s 71(1)(3)(b)(i) of the RTA refers to rights of a tenant arising as a consequence of the person being a tenant. The ability to defend proceedings to terminate a tenancy is not itself a right 'as a tenant for the purposes of RTA s 71(3)(b)(i)'; that ability is a consequence of proceedings being brought against the tenant and is common to any party against whom legal proceedings are commenced; it is not a right arising as a consequence or incidence of being a tenant. The Authority submits that s 71(3)(b)(i) does not extend to steps by a tenant to defend proceedings taken by a lessor in exercise of its rights to seek to terminate a tenancy agreement and obtain possession of let premises from a tenant. Tenancy (WA) says that each of the actions taken by the tenant in the course of the proceedings in the Magistrates Court to oppose the termination application are 'steps' in the sense of measures or suitable actions in the course of action the tenant took to secure his right to continued occupancy of the premises and are therefore steps taken to secure or enforce the tenant's rights as a tenant.

29 Secondly, the Authority says that the word 'motivated' in s 71(3)(b)(i) requires that the state of mind of the lessor in making the decision be considered and what influenced it rather than an inquiry as to whether there was a causal link between the steps taken by the tenant and the giving of the notice by the lessor. Tenancy WA says that it is sufficient that there is a causal link between the steps taken by the tenant and the lessor giving the notice.

The proper approach to statutory construction and the use of extrinsic materials

30 The proper approach to construction is summarised in the judgment of Buss JA in Van Heerden v Hawkins [2016] WASCA 42 at [94] [96], [100] and [102]:

The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).

The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).

The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).

...

Section 18 of the Interpretation Act provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects. See Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).

...

As Crennan J noted in Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ), not least because such material may confuse what was "intended ... with the effect of the language which in fact has been employed" (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC)' [99]. That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act. In other words, the statutory text, and not nonstatutory language seeking to explain the statutory text, is paramount. See Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22] (Gleeson CJ, Gummow, Hayne & Heydon JJ).

31 Extrinsic material may be considered in ascertaining the meaning of the RTA, and more particularly of s 71(3)(b)(i): Interpretation Act 1984 (WA) s 19(1)(a), (b)(i). Explanatory memoranda, second reading speeches, reports made to or laid before Parliament and 'any relevant material in any official record of proceedings in either House of Parliament' are among the materials identified in s 19(2) as open for consideration.

32 The common law has been radically altered in relation to residential tenancy agreements by the RTA. The RTA limits freedom of contract and sets out rights and obligations that cannot be varied by the parties. The Act involves both procedural reforms and substantive rules. The RTA contains provisions relating to dispute resolution (pt III), the form and terms of residential tenancy agreements (pt IV) and the termination of residential tenancy agreements (pt V).

33 Part IV of the RTA sets out the rights and obligations of lessors and tenants in respect of matters including rent, security bonds, maintenance, repairs and quiet enjoyment. Rent increases must follow notice, are limited in frequency and subject to challenge: RTA s 30, s 31A, s 31B, s 32. Security bonds and an increase in security bonds is regulated: RTA s 31. The lessor must maintain the premises in a reasonable state of repair and must carry out urgent repairs if the need arises: RTA s 42, s 43. The RTA imposes guarantees of quiet possession by the tenant together with regulation of entry by the lessor and special rules as to locks and security of the premises: RTA s 44, s 45, s 46.

34 The lessor's right to terminate a residential tenancy agreement is restricted and regulated by pt V of the RTA. A residential tenancy agreement is any agreement under which a person for valuable consideration grants to another person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises for the purpose of residence (s 3). Thus, pt V of the Act applies to private lessors as well as the Authority or any other social housing provider.

35 Section 60, which is in pt V div 1 of the Act, provides that a residential tenancy agreement shall not terminate or be terminated except in one of the specified circumstances. Relevantly, s 60(a) provides that a residential tenancy agreement shall terminate or be terminated where the lessor gives notice of termination under the Act and the tenant delivers up vacant possession of the premises on or after the expiration of the period of notice required under the Act or a competent court, upon application by the lessor, terminates the agreement under s 71. The effect of these provisions is that a notice to quit, referred to in the RTA as a notice of termination, does not of itself terminate the agreement unless the tenant delivers up possession of the premises or a competent court terminates the agreement.

36 Part V div 2 deals with the circumstances in which a lessor may give a notice of termination and the required period of notice. Section 62(1) provides that a lessor may give notice of termination upon the ground that the tenant has breached a term of the agreement and the breach has not been remedied. Under s 63 a lessor may give notice of termination on the ground that the lessor has entered into a contract for sale of the premises to which the agreement relates. Section 64 provides that a lessor may give notice of termination to the tenant without specifying any ground for the notice. Section 64(2) provides that such a notice of termination without any ground must be not less than 60 days before the day on which the tenant is required under the notice to give to the lessor possession of the premises. Section 64 does not apply to a residential tenancy agreement for a fixed term during the currency of that term.

37 Part V div 4 provides for a competent court to make orders terminating a residential tenancy agreement and for possession of the premises. A competent court is relevantly the Magistrates Court. Section 71(1) provides relevantly that where a lessor gives notice of termination and the tenant fails to deliver up possession of the premises on the day specified, the lessor may, apply to a competent court for an order terminating the agreement and an order for possession of the premises. Section 71(2) provides that subject to that section, a competent court shall, upon application under that section, make an order terminating the agreement and an order for possession of the premises if it is satisfied relevantly:

• that notice of termination was given by the lessor and that it complied with and was given in accordance with the Act; and
• where notice was given by the lessor upon a particular ground prescribed by the Act, that the lessor has established that ground and, in the case of notice upon the ground of a breach by the tenant of a term of the agreement, that the breach is in all the circumstances such as to justify termination of the agreement.

38 Section 71(3)(b)(i) provides that the court may refuse to make orders terminating the agreement or for possession of the premises if it is satisfied relevantly that the lessor was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce his rights as a tenant. Section 71(4) is a reversal of onus provision. It provides that where in any proceedings upon an application under that section the court is satisfied that the tenant had, within the period of six months before notice was given by the lessor, complained to a public authority or taken steps to secure or enforce the tenant's rights as a tenant, the burden shall lie on the lessor to prove that the lessor was not wholly or partly motivated to give notice by that fact.

39 Other provisions of pt V div 4 provide in specified circumstances for the termination of a residential tenancy agreement by court order without any notice of termination. Section 73 provides for termination of an agreement where the tenant has caused serious damage to the premises or injury to the lessor or any person in occupation of or permitted on adjacent premises. Section 74 provides that a competent court may terminate the agreement if it is satisfied that the lessor would suffer undue hardship if the lessor were required to terminate the agreement under any other provision of the Act. Section 75A provides that a court may terminate a social housing tenancy agreement due to objectionable behaviour by the tenant that justifies terminating the agreement. Section 76A deals with termination of the agreement by the lessor if the tenant has abandoned the premises.

40 At common law the lessor can give a notice to quit to the tenant for any reason or no reason at all. The Act modifies the common law by increasing the amount of notice to quit to 60 days. The Act provides that a shorter period of notice may be given, or an application may be made to the court to terminate the tenancy and order the tenant give possession of the premises to the lessor in circumstances where that is justified such as where the tenant has breached the tenancy agreement and failed to remedy the breach or has engaged in objectionable behaviour. Where the lessor gives notice to quit under s 64 the lessor may do so for any reason or no reason at all and it is not possible for the sufficiency of the reason to be challenged in court. That is subject to the qualification that the court has a discretion to refuse to terminate the agreement or order possession of the premises where the lessor was motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce his rights as a tenant.

Interpretation 'secure or enforce rights as a tenant'

41 The better interpretation of s 71(3)(b)(i) of the RTA is the narrow construction contended for by the Authority. 'The tenant had ... taken steps to secure or enforce his rights as a tenant' means that the tenant had taken positive action to enforce or secure rights accruing to him in his capacity as a tenant and does not extend to defending or resisting proceedings against him by a lessor to obtain possession of the premises. A number of factors point to that conclusion. First, the natural and ordinary meaning of the words '[take] steps to secure or enforce his rights as a tenant' does not include defending legal proceedings in which the issue is whether he is entitled to remain a tenant as distinct from rights accruing to him in his capacity as a tenant.

42 Secondly, the scheme of pt V of the RTA is to provide two avenues for a lessor to terminate a residential tenancy agreement, with ground termination and without ground termination. The RTA does not prevent a lessor from terminating a tenancy by a without ground notice of termination where the lessor is motivated to give the notice by circumstances that would justify the lessor giving a 'with ground' notice or applying to the court to terminate the tenancy. For example the lessor may give a without grounds notice where the lessor is motivated to give the notice by the fact that the tenant has, or the landlord believes the tenant has, breached a term of the agreement and the breach has not been remedied. A lessor may choose to terminate the agreement by a without ground notice rather than give notice of termination upon the ground that the tenant has breached a term of the agreement because the lessor does not wish to risk being involved in proceedings in the Magistrates Court which may be expensive, prolonged, uncertain or inconvenient. It is irrational and anomalous that a lessor may give a without grounds notice of termination in such circumstances but cannot give such a notice if the lessor first gives a notice of termination upon the ground that the tenant has breached a term of the agreement and then decides not to proceed with that avenue of termination because the tenant defends the proceedings in the Magistrates Court and proceeding with that course would involve the lessor in the expense and inconvenience of prosecuting a defended proceeding. The construction advanced by Tenancy WA imputes to the legislature an intention which is neither reasonable nor rational. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 321 it was said by Mason and Wilson JJ that when a judge assigns labels such as 'absurd' or 'irrational', he or she is assigning a ground for concluding that the legislature could not have intended a statute to operate in a particular way, and that an alternative interpretation is to be preferred: see also Legal Services Board v GillespieJones [2013] HCA 35; (2013) 249 CLR 493 [48] (French CJ, Hayne, Crennan & Kiefel JJ). In this case it is preferable to adopt a construction that will avoid a consequence which appears anomalous or irrational.

43 Thirdly, the RTA as a whole and the extrinsic material to which I shortly refer shows that the mischief to which s 71(3)(b)(i) is directed is a lessor giving to a tenant notice to terminate his tenancy in retaliation for a tenant complaining to a public authority or exercising or threatening to exercise a right conferred on the tenant as a tenant. The extrinsic material confirms that the meaning of s 71(3)(b)(i) is the narrower meaning, that is the meaning advanced by the Authority.

44 Upon the second reading of the Residential Tenancies Bill 1978 (WA) (the Bill), Senator Carr, Minister for Local Government, noted the following:

... this Bill ... is based upon the recommendations of the working party on residential tenancy law reform which was commissioned in 1983 and reported in 1984. Its chief recommendation was that the legislation be based upon the South Australian Residential Tenancies Act 1978-81.

The South Australian legislation had its origin in the report of A J Bradbrook, MA, LIM, entitled 'Poverty and the Residential LandlordTenant Relationship', which was prepared for the Australian commission of inquiry into poverty.

It is convenient to consider, first, the report of the WA Working Party and secondly the report by Professor Bradbrook.

45 The 'Report of the Working Party on Residential Tenancy Law Reform' (1984) (Working Party Report) was delivered by a working group chaired by R Glanville, Senior Legal Officer at the Department of Consumer Affairs. The terms of reference for the working group included a term '[t]o examine the methods by which a tenancy agreement may be terminated and to make recommendations in relation to the appropriateness of such methods and if considered desirable any alternative procedures which ought be adopted' (page 2).

46 A summary of the working party's findings records at page 3 of the report that:

The Working Party ... found that the current state of landlord/tenant law as it relates to residential tenancies to be deficient.

...

As a consequence the Working Party recommends the implementation of a scheme of legislation in similar terms to the Residential Tenancies Act of South Australia, subject to the minor variations outlined in the body of this report.

47 In expanding upon that recommendation the working party identified rights and remedies relating to the rent and rent increases, the form of tenancy agreements, lessor's rights of entry, repairs and maintenance and the termination of residential tenancy agreements. In relation to the termination of residential tenancy agreements the Working Party Report said:

The Working Party believes that section 81 of the Property Law Act is inadequate ...

The Working Party recommends that more appropriate periods of notice and procedures be laid down to codify the practice of terminating tenancies. In this regard the South Australian legislation with minor modifications as to the periods of notice is considered to offer a fair and reasonable basis for the termination of an agreement.

The Working Party believes that the adoption of such provisions will not only provide security of tenure for tenants who comply with their obligations but also provide, in the context of the Tribunal, speedier redress for the landlord.

The Report recommended that the Residential Tenancies Act 1978 (SA) (SA Act) be largely reproduced.

48 In discussing s 65 of the SA Act, which dealt with the giving of a without grounds termination notice and was ultimately enacted as s 64 of the RTA, the Working Party noted that the rationale behind this section was 'to prevent discriminatory eviction without reasonable notice' (page 29, emphasis added). Thus the recommendation was to preserve the ability of a lessor to terminate a residential tenancy for any reason or for no reason at all, subject to the tenant having a reasonable period of notice.

49 In Blanket v The Housing Authority [2014] WASC 409, Pritchard J said of the legislative purpose apparent in s 64 of the RTA:

... the intention of the Parliament in enacting s 64 of the RT Act was to ensure that owners retained the ability to bring about the termination of a tenancy agreement without needing to specify a particular reason for doing so, but to protect the position of the tenant in that case by requiring a reasonable period of notice to enable the tenant to find alternative accommodation [112].

This assessment of the legislative intention is supported by the second reading speech, the report of the Working Party and the Bradbrook Report to which I will now refer.

50 As I have said the RTA is based on the SA Act which 'had its origin' in the report of Mr A J Bradbrook, 'Poverty and the Residential LandlordTenant Relationship, Australian Government Commission of Inquiry into Poverty' (1973) (Bradbrook Report). Save for semantic differences between the use of defined terms of 'lessor' instead of 'landlord' and 'governmental authority' and 'public authority', RTA s 71(3) is in the same terms as s 73(3) of the SA Act.

51 In the Bradbrook Report the author expressed the view that the interests of landlord and of tenant were in need of legislative protection. Professor Bradbrook recommended reforms to assist a tenant in obtaining a lease which balances fairly the various rights and obligations on both the landlord and the tenant and ensuring that the tenant possesses adequate rights in a number of specific areas such as rent increases, repairs, privacy and security. In relation to termination of the tenancy Professor Bradbrook recommended that the tenant needed protection, for example, when threatened with eviction by the landlord, and the landlord had a number of interests worthy of legislative protection, including that the landlord be able to secure possession of their property with a minimum of expense and delay.

52 In ch 9 of his report Professor Bradbrook considered reform of the law concerning the landlord's right to terminate a tenancy other than a fixed term tenancy. Professor Bradbrook considered two types of reform:

Firstly, we can preserve the right of the landlord to give the tenant a notice to quit without specifying a reason, but permit the tenant to challenge the validity of the notice if he believes that it was given in retaliation for a complaint made by the tenant to a governmental agency or an exercise by the tenant of a remedy provided by statute. (This can be referred to as the problem of 'retaliatory eviction'.) Secondly, we can insist that the landlord specify a reason, and enact legislation specifying a complete list of acceptable reasons. (This can be referred to as the problem of 'discretionary termination'.)

53 Professor Bradbrook first considered 'retaliatory eviction'. Professor Bradbrook said that it is pointless to increase the remedies available to the tenant against the landlord unless adequate protection against the notice to quit in retaliation is provided and that legislation designed to prevent retaliatory action is widespread in the United States, Canada, New Zealand and the United Kingdom. Professor Bradbrook gave examples of such legislation including Canadian statutes that declared void any notice to quit given to the tenant in retaliation for 'any complaint made to any governmental authority or any attempt by him to secure or enforce his legal rights'. Professor Bradbrook recommended the adoption of the following legislation:

(1) In any proceeding by a landlord for possession, if it appears to the Residential Tenancies Board that the notice to quit was given in retaliation, because of a complaint by a tenant against the landlord to any governmental authority or because of an attempt by a tenant to secure or enforce his legal rights, the Board may refuse to grant an order for possession and may declare the notice to quit invalid and the notice to quit shall be deemed not to have been given.

(2) For the purposes of subsection (1), any notice to quit served on the tenant within six months of a complaint by him against the landlord to any governmental authority or within six months of any attempt made by the tenant to secure or enforce his legal rights shall be presumed to have been given in retaliation, unless the contrary is proved.

54 Professor Bradbrook then considered 'discretionary termination'. Professor Bradbrook recommended the introduction of a comprehensive list of acceptable reasons for a notice to quit.

55 The RTA, like the South Australian legislation on which it is based, adopts both of Professor Bradbrook's recommendations. Section 60 provides that a residential tenancy agreement shall not be terminated except in one of the specified circumstances. The specified circumstances are set out in pt V. Sections 62 and 63 set out the circumstances in which the lessor may give notice of termination for a specified reason (discretionary termination). Other provisions of pt V div 4 provide other specified circumstances for the termination of a residential tenancy agreement by the court without any notice of termination. Section 64 provides that a landlord may terminate a tenancy without specifying any ground but in such a case the landlord must give not less than 60 days' notice. Professor Bradbrook's recommendation concerning 'retaliatory eviction' is given effect by s 71(3)(b)(i). The language of s 71(3)(b)(i) closely follows the recommendation of Professor Bradbrook. Section 71(4) gives effect to Professor Bradbrook's recommendation for shifting the burden of proof from the tenant to the landlord in relation to retaliatory eviction.

56 In his speech on the second reading of the South Australian Act AttorneyGeneral Duncan said of cl 73(3) of the South Australian Bill, which is materially in the same terms as s 71(3) of the RTA:

Subclause (3) of this clause also provides that the Tribunal may refuse to make the orders if it is satisfied that the notice was retaliatory, or, in the case of a notice given upon the grounds of a breach by the tenant, that the tenant remedy that breach.

The text and scheme of the RTA discloses that the effect of s 71(3)(b)(i) is that the court may refuse to make the orders if it is satisfied that the notice was retaliatory in the sense discussed by Professor Bradbrook.

57 In his report, Bradbrook defined retaliatory eviction as the situation where a termination notice is 'given in retaliation for a complaint made by the tenant to a government agency or an exercise by the tenant of remedy provided by statute'. Immediately after, in suggesting the form of a draft provision to deal with retaliatory eviction, Bradbrook used the expression 'secure or enforce his legal rights'.

58 In his report Professor Bradbrook said that the tenant needs assistance by the law to ensure that he has adequate rights in a number of specific problem areas: for example, his right to live in an adequately maintained dwelling; his right to privacy; his right to have his security deposit safeguarded; his right to adequate notice of an intended rent increase, and his need for an assurance backed up by legislation that if he has children he will not suffer from discrimination at the hands of a landlord in an application for a tenancy. He needs assistance when he is threatened by the landlord with eviction or subjected to pressure to quit. It was in that context that Professor Bradbrook said that it is pointless to increase the remedies available to the tenant against a landlord unless adequate protection against a notice to quit in retaliation is provided and consequently legislation outlawing retaliatory conviction was recommended.

59 The statutory provision of tenants' rights and standards of accommodation are only effective where tenants can complain about violations of those rights and standards with impunity. This policy does not underlie the protection of a tenant from a lessor changing the means by which they pursue the termination of the tenant's residential tenancy agreement on the basis that the tenant intends to defend the previous method in a way that would reduce the practicality or convenience of the former means.

60 The purpose of pt V of the RTA is to simplify and codify the law concerning the termination of residential tenancy agreements. In doing so, Parliament struck a balance between the interests of lessors and of tenants. Prior to the introduction of the RTA, lessors in Western Australia were entitled to terminate a tenancy agreement without specifying a ground. It is apparent from the extrinsic material that the Parliament intended to maintain this termination option, albeit with a requirement for a 60-day notice period. This preserved the ability of a lessor to take possession of their property in a situation where a tenant is given time in which to find replacement accommodation and was the balance struck between the interests of lessor and tenant.

61 Notwithstanding the preservation of a without notice termination right, pt V of the RTA also manifests an intention that a residential tenancy agreement may be terminated without notice, or on shorter notice, if the lessor gives one of a specified number of reasons for termination. So much is apparent from the introduction of a number of grounds for termination of a residential tenancy agreement, and from comments by Professor Bradbrook. Although the giving of a ground was to be encouraged, it was left open to the lessor to opt for a without ground termination, consistent with the view that the lessor should be able to regain possession of their property as long as sufficient notice is provided. This is consistent with the finding of Pritchard J in Blanket that a tenant is not entitled to procedural fairness in respect of a landlord's choice to pursue a s 64 without ground termination rather than termination under another section within pt V of the RTA.

62 It is apparent that s 71(3)(b)(i) was intended to deal with the mischief of retaliatory eviction. 'Retaliatory eviction' was, at the time of the writing of the Bradbrook Report, the enactment of the SA Act and the enactment of the RTA, an eviction in retaliation to a complaint or conduct about or taken by a tenant in relation to the condition or use of a property, and motivated by a purpose of ensuring compliance with housing codes and improving the living standards of persons living in leased accommodation. 'Retaliatory eviction' does not extend to choosing to terminate a tenancy by a without grounds notice after the lessor has given a with ground notice and decided that that means of terminating the tenancy is expensive, inconvenient or uncertain and proceeds to terminate the tenancy by a without grounds notice.

Was Authority motivated by steps taken by tenant?

63 The second basis on which the Authority says that the magistrate made a jurisdictional error in misconstruing s 71(3)(b)(i) of the RTA is that the power of the magistrate to exercise power under s 71(3)(b) of the RTA is conditioned on the applicant having been wholly or partly motivated to give the notice of termination by the fact that the tenant had taken steps to secure or enforce his rights as a tenant. That is, the existence of such motivation is a jurisdictional fact. Alternatively, the Authority says that the magistrate misconstrued the meaning of motivated in s 71(3)(b)(i) and thereby made a jurisdictional error.

64 The Authority says that the magistrate misconstrued s 71(3)(b)(i) in that he incorrectly equated causation with motivation contrary to the proper construction of that provision. The Authority says that the term 'motivated' in s 71(3)(b)(i) requires that the state of mind of the lessor in making the decision be considered and what influenced it rather than an inquiry as to whether there was a causal link between the steps taken by the tenant and the giving of the notice by the lessor. Such a causal link is not sufficient. It is the fact that the tenant took steps to secure the tenant's rights that must have wholly or partly motivated the lessor to give the notice.

65 Consideration of the term 'motivated' in racial discrimination legislation has been interpreted to require a consideration of the alleged offender's state of mind. Further, employment law provisions prohibiting adverse action against a person 'because' the person engages in industrial activity have been construed to require investigation of the state of mind of the decisionmaker.

66 First, in the context of racial discrimination legislation that deems an offence to be 'racially ... aggravated' if 'the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group', it has been held the offence concerns the defendant's state of mind because motive is necessarily a state of mind: RG and LT v Director of Public Prosecutions [2004] EWHC 183 (Admin) (28 January 2004) [14] (May LJ, Nelson J agreeing) cited with approval in Taylor v Director of Public Prosecutions [2006] EWHC 1202 (Admin) (28 April 2006) [13] (Keene LJ, Jack J agreeing).

67 Secondly, in construing a statutory provision which precluded 'adverse action' against a person 'because' the person 'engages in industrial activity' (Fair Work Act 2009 (Cth) s 346(b)), members of the High Court held that this determination is one focusing on the reasons that actually motivated the particular decision maker and the mental processes of that decision-maker: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 254 CLR 243 [7] (French CJ and Kiefel J); [85] (Gageler J). In The Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, the High Court considered, amongst other things, reference to a decisionmaker's 'particular reason' for taking adverse action in s 361(1)(a) of the Fair Work Act 2009 (Cth) and the use of the word 'because' in s 346 of that Act. At [44], French CJ and Crennan J held that '[t]he imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?"' At [127], Gummow and Hayne JJ held that 'it was the reasons of the decisionmaker at the time the adverse action was taken which [should be] the focus of the inquiry'. At [146], Heydon J held that '[t]o search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted'.

68 There is a compelling basis upon which it can be concluded that reference in s 71(3)(b)(i) to action being 'wholly or partly motivated' requires consideration of the actual state of mind of the decision-maker. This is a determination of fact and one that takes into account all of the facts and circumstances of the case and the available inferences.

69 What is required to constitute 'motivation'? In considering s 5 of the Conciliation and Arbitration Act 1904 (Cth) in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 (Bowling) at 619 Mason J (Gibbs, Stephen and Jacobs JJ agreeing) held that it is sufficient that an employer is actuated by a particular reason or circumstance if that reason or circumstance 'is a substantial and operative factor' and that it 'does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section'. In construing 'motivation' under the Workplace Relations Act 1996 (Cth), Madgwick J in Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council [2000] FCA 1231 (Greater Dandenong), at [65], looked for the 'actual, operative and significant reason' for the decision of the decision-maker. However in this instance, it is only required that the lessor was at least 'partly motivated'. Therefore what is required here is something less than in Bowling and Greater Dandenong.

70 Tenancy WA submits that it is sufficient that the steps taken by the tenant to secure or enforce his rights 'brought about' the termination notice. Tenancy WA says that if the steps taken by the tenant to defend the matter caused the Authority to give the notice of termination then the Authority was 'motivated' to do so by the fact of the tenant having taken those steps.

71 In my opinion a causal link between the lessor giving the notice and the tenant having taken steps to secure or enforce his rights as a tenant is insufficient. Section 71(3)(b)(i) requires that an actual or operative reason of the lessor giving the notice be the fact that the tenant has taken the steps. That is the ordinary and natural meaning of s 71(3)(b)(i). The words 'motivated' and 'by the fact' in s 71(3)(b)(i) require an investigation of the reasons of the lessor for giving the notice. Action (in this case giving notice) is motivated by a fact, in this case the fact of the tenant having taken steps to secure or enforce his rights as a tenant, if that fact is an actual or operative reason for the action. Examining whether a fact is an actual or operative reason for an action calls for an inquiry into the mental processes of the person responsible for that action. A mere causal link is insufficient.

72 Tenancy WA submitted that the words 'motivated by' do not require that the fact of the tenant having taken the steps be a direct cause of the lessor giving notice. Tenancy WA submitted that the words 'wholly or partly' supports this interpretation. I do not agree. The words 'wholly or partly' mean that it is sufficient if the fact of the tenant having taken the steps is an operative reason for the lessor giving notice notwithstanding that there may be other operative reasons.

73 Tenancy WA relies upon the dissenting judgment of Bromberg J in Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150. That case concerned s 340 of the Fair Work Act 2009 (Cth) which provided that a person must not take adverse action against another person because that person, amongst other things, had, or had exercised, a workplace right. The appellant alleged that the respondent had contravened this prohibition by moving an employee from a weekend roster to a week roster because he had taken personal leave to which he was, predominantly, entitled. It was common ground that this was adverse action and involved, where the leave was authorised, a workplace right. However, the primary judge dismissed the claim because he found that the adverse action was not taken for the alleged prohibited reason, namely that the employee had exercised a workplace right to take leave. Instead, the primary judge found that the lack of predictability in the employee's attendance and a desire not to have unreliable employees working the weekend roster was the reason the action was taken. On appeal the appellant contended that a contravention should have been found because the permissible reason found by the primary judge was constituted by the same facts as the alleged prohibited reason. Bromberg J held that motivation by the practical effect of the exercise of a workplace right, in the knowledge that the effect is created by the exercise of a workplace right, is capable of constituting a prohibited reason for the taking of adverse action. The majority, Jessup and Perram JJ, did not agree. Their Honours held that in order for the taking of adverse action to contravene the prohibition, it is insufficient that the conduct, which gives rise to the reason for that action, happens to be the exercise of a workplace right. What is necessary is that the actual reason of the decisionmaker, in his or her own mind, be the employee's exercise of a workplace right. An application to the High Court for special leave to appeal was refused.

The learned Magistrate made a jurisdictional error in making the Order in that he misconstrued s 71(3)(b)(i) of the RTA and thereby misconceived the nature of the court's function and extent of its power, alternatively purported to act in circumstances where the requirements of s 71(3)(b)(i), being a jurisdictional fact, did not exist, and, in effect, concluded, contrary to law, that:

1.1 the defence by the applicant of previous proceedings issued under ss 71 and 75A of the RTA (that were withdrawn) amounted to the applicant having taken steps 'to secure or enforce his rights as a tenant'; and/or

1.2 that the applicant was wholly or partly 'motivated' to give the notice of termination of the Agreement to the Tenant under s 64 of the RTA by the fact that the Tenant had taken steps to secure or enforce his rights as a tenant.

75 Section 71(2) of the RTA provides that, subject to that section, the court shall, upon application under the section, make an order terminating the agreement and an order for possession of the premises if it is satisfied relevantly that notice of termination was given by the lessor and that is complied with and was given in accordance with the Act. That is, if the court is satisfied that the notice of termination complied with and was given in accordance with the Act, the court has no discretion, it must make an order terminating the agreement and an order for possession. The magistrate refused to make such orders on the basis that he had power to do so conferred on him by s 71(3)(b)(i). However, the magistrate misconstrued the statutory provision which was the source of that power.

76 The defence by the tenant of previous proceedings brought by the Authority under s 71 and s 75A of the RTA was not capable of amounting to the tenant having taken steps to secure or enforce his rights as a tenant. The magistrate identified the wrong issue and asked the wrong question. The magistrate made a jurisdictional error.

77 The magistrate also erred in finding that the necessary motivation was established. In this case what is necessary is that an actual or operative reason of the Authority decisionmaker, in his or her own mind, be the fact that the tenant had taken steps to secure or enforce his rights as a tenant. The magistrate considered that it was sufficient that the actions of the tenant in seeking to secure or enforce his rights by defending the earlier proceedings 'brought about' the termination notice. The magistrate's language is ambiguous. It is not apparent from that finding whether the magistrate found that the fact that the tenant had taken the relevant steps was an actual or operative reason for the Authority giving the termination notice. However, such a finding would be inconsistent with the magistrate's finding that the 'application is, effectively, motivated by the allegations made by others against [the tenant]'. I conclude that the magistrate considered that s 71(3)(b)(i) empowers the magistrate to refuse to make the orders under s 71(2) if the magistrate is satisfied that there is a causal link between a lessor giving the notice and the fact that the tenant has taken steps to secure or enforce his rights as a tenant. As a result of that erroneous construction of s 71(3)(b)(i) the magistrate failed to ask himself whether the fact that the tenant had taken steps to secure or enforce his rights as a tenant was an actual or operative reason for the Authority giving the notice.

78 The magistrate misconstrued s 71(3)(b)(i) by failing to interpret the provision as requiring that the operative reason the lessor gave the notice was that the tenant had taken the relevant steps. The magistrate identified a wrong issue and asked the wrong question. It was a jurisdictional error.

Alternatively to ground 1, the learned Magistrate made a jurisdictional error in making the Order in that he purported to make the Order without having first considered and made a determination as to whether he should exercise his discretion under s 71(3)(b) to refuse to make orders under s 71(2) of the RTA terminating the Agreement and for possession of the Premises, being a mandatory consideration preconditioning the existence of the authority to refuse to make an order under s 71(2) by reason of the operation of s 71(3)(b) of the RTA.

80 In view of finding that ground 1 is made out, it is unnecessary to consider ground 2. However, I will state my conclusion in a summary way. The power conferred on the court by s 71(3)(b)(i) of the RTA is discretionary not mandatory. The magistrate refused to make the orders under s 71(2) because he was satisfied that the Authority was wholly or partly motivated to give the termination notice by the fact that the tenant had taken steps to secure or enforce his rights as a tenant. The magistrate did not consider whether or not, in the exercise of his discretion, he should refuse to make the orders in circumstances where he was satisfied that the Authority was wholly or partly motivated to give the notice by the fact that the tenant had taken steps to secure or enforce his rights as a tenant. The magistrate misconstrued the statutory provision which conferred on him the power to refuse to make the orders under s 71(2), he failed to exercise his discretion and thereby made a jurisdictional error.

The learned Magistrate made a jurisdictional error in that he failed to accord the applicant procedural fairness/natural justice in that he failed to adequately direct the applicant's attention to, and afford the applicant a reasonable opportunity to make submissions and adduce evidence in relation to, the potential application of s 71(3)(b) of the RTA prior to making the Order.

82 In view of the finding I have made in relation to grounds 1 and 2, it is unnecessary to consider whether or not the applicant has made out ground 3. However, I will state my conclusion in summary form.

83 The content of the requirements of procedural fairness depend on statutory construction and the circumstances of each case. It involves matters of degree and judgment and the forensic context in which the question falls to be determined is relevant: McKay v Commissioner of Main Roads [2013] WASCA 135 [158] (Murphy JA, Martin CJ & Buss JA agreeing). The subject of a decision is ordinarily entitled to have his or her mind directed to the critical issues or factors on which a decision is likely to turn in order to have an opportunity of dealing with them and to put relevant information on material before the decisionmaker and make submissions on the critical issues: Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 [215] (Buss JA, Wheeler & Newnes JJA agreeing).

84 The relevant circumstances include the following. The tenant had made no application under s 64(3) of the RTA nor made any reference to relying on s 71(3)(b)(i) of the RTA. The magistrate made no reference to s 71(3)(b)(i) prior to reserving his decision. In all the circumstances the magistrate did not adequately direct the attention of the representative of the Authority to the possibility that he may treat the tenant's submissions as an application under s 71(3)(b)(i) and may refuse to make an order in reliance upon that provision. The magistrate did not give the Authority a reasonable or proper opportunity to adduce evidence and make submissions in relation to the s 71(3)(b)(i) issue. In all the circumstances the Authority was denied procedural fairness. The magistrate made a jurisdictional error.

85 Section 36(4) of the Magistrates Court Act provides that if the grounds for relief are made out the court, if it is just to do so, may:

(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;

(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;

86 Section 36(4)(a) empowers the court to order that the order be set aside. It is appropriate to order that the order of the magistrate dismissing the Authority's application be set aside.

87 Section 36(4)(b) empowers the court to grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari. Certiorari quashes the legal consequences of the impugned decision. The court cannot substitute its own decision for that which is quashed. The court's sole function is to consider whether to quash the impugned decision.

88 Section 36(4)(c) provides that the court may make any necessary consequential orders. Such an order must necessarily be consequential upon the order made by the court, in this case an order quashing the magistrate's orders. An order terminating the tenancy and that the tenant give possession to the Authority is not an order that is a necessary consequential order upon the order quashing the magistrate's decision an order.

89 The Authority's application is allowed. The decision of the Magistrate of 5 July 2016 is overturned and the matter is remitted for rehearing in the Magistrates Court, constituted by a different magistrate.