For the reasons set out below, I have come to the view that Ms Woods' Ground 6 should be upheld.
Ms Woods' Ground 6 was to the effect that:
the Act required that nuisances or interferences (within the meaning of s 75A(1)(b) or (c) of) to be sufficiently identified;
without that sufficient identification, the Court could not properly consider, as mandated by the Act, whether Ms Woods had relevantly permitted the nuisances or interferences; and
the Court could not properly consider whether Ms Woods' behaviour (in permitting the nuisances or interferences found in (2) immediately above) justified terminating the Tenancy Agreement.
I accept those propositions. Accordingly, I consider that the Magistrate did not approach the task in the way required by the Act and so committed a jurisdictional error.
In ex parte Wallam, the Housing Authority had submitted that under s 75A of the Act the court was first required to determine if the tenant had engaged in the behaviour specified in s 75A(1)(a) to (c) of the Act. And then, if so satisfied, the court was required to determine whether it was (further) satisfied that the behaviour justified terminating the agreement.[195] That submission was accepted by Pritchard J at [41], [42].
Her Honour in that case was focused on the second question of whether the tenant's behaviour justified termination of the tenancy agreement. Her Honour described that: '[c]learly an evaluative judgement must be made.': [42].
While her Honour noted that no express criteria was provided in the statute for the evaluative judgement, her Honour was clear that the evaluative judgement required consideration of all of the relevant circumstances pertaining to the act, decision or conduct: [44][196]
But it is plain, in my view, that it is the 'behaviour' which has been found to be within the meaning of s 75A(1) which is being assessed.
The alleged 'behaviour' of Ms Woods in this case was the permitting of the nuisances or interferences in s 75A(1)(b) and (c) of the Act. It is not the nuisances or interferences in and of themselves. Those were not the behaviour of the tenant in question on the case made by the Housing Authority at the trial below.
So, it follows, in my view, that a nuisance or an interference which may have occurred, but which was not relevantly permitted by the tenant, could not constitute relevant behaviour of the tenant under the Act, and could not form part of the evaluative judgement as to whether the Tenancy Agreement should be terminated.
As I understand it, the Housing Authority submits in this case that there was a sufficient factual basis for the Magistrate to conclude that Ms Woods had permitted (by omitting to prevent) the nuisances and interferences.[197] These submissions must be to the effect that the Magistrate had found both that Ms Woods had permitted sufficient nuisances and interference, and that her conduct in so doing justified termination of the Tenancy Agreement.
Implicit in this submission appears to be a contention that the Magistrate made some determination which distinguished between the nuisances and interferences which Ms Woods had 'permitted' and only took them into account in assessing whether her conduct (in so permitting those) justified the termination. That is notwithstanding that those permitted nuisances and interferences were not separately identified.
The principal difficulty with that submission is that it is not how the Magistrate expressed her reasoning, and I do not read her Honour's reasons as proceeding in that way.
As noted, at trial the Housing Authority relied on all of the nuisances or interferences about which evidence was led, which included the incidents of domestic violence.
The Housing Authority accepted, properly in my view, that (all of) the incidents of domestic or family violence were taken into account by the Magistrate and not excluded from her Honour's findings as to whether Ms Woods had permitted the nuisances and interferences and termination of the Tenancy Agreement was justified.[198]
I am not able to discern that her Honour was relying on some only 'sufficient' subset of the nuisances and interferences in her reasons.
And, as noted, the Magistrate clearly considered that incidents of domestic violence had been, at least, a significant part of the nuisances or interferences.
The Housing Authority further submitted that a proper interpretation of the Act and the way that such cases are conducted in the Magistrates Court pursuant to the legislation, meant that the Magistrate could not be required to make a finding of fact on each individual allegation (of a nuisance or interference).[199]
At least on the facts of this case, I do not consider that the Magistrate needed, as a matter of law, to identify each act or incident and, then, determine whether Ms Woods had permitted that individual nuisance or interference to carry out the two steps set out in s 75A(1) of the Act.
My view is that, depending on the facts, it may well be sufficient for the Magistrate to make findings about classes or categories of nuisances and interferences and to then make findings that the class or category had been permitted.
Such an approach may commend itself in a case such as this where it appears that the Magistrate has accepted that Ms Woods could not control or be taken to have permitted every act of nuisance or interference, especially some of the domestic violence incidents. That is, there would have been a clear reason to differentiate those which had been permitted because they are the only ones which may be taken into account in assessing whether the permitting conduct by the tenant justified the termination of their tenancy agreement.
The matters under the next two headings support my reasons for upholding Ground 6 and not accepting the Housing Authority's submissions on the point.
[2]
The need to sufficiently identify the nuisances or interferences in this case appears, in my view, from the following.
I understand it to be common ground that the following facts were established by the evidence before the Magistrate; namely:
there was a significant number of nuisances and interferences at, or emanating from, the house;
with one exception, they were not caused by Ms Woods.[200] And, the one caused by Ms Woods was her calling the police at or close to her neighbour's house when, as she gave her evidence, she was seeking police assistance as she was fearful of her ex‑partner. In light of the Magistrate's findings as to the evidence of the neighbours quoted in [76[201]] above,201 and her further findings quoted in [77] above: '... there has been nothing to s[202]est ... the vicinity'202 I think I can proceed, effectively, on the basis that Ms Woods did not cause any of the nuisances or interferences;
a lot of the nuisances and interferences were reported to police;
the nuisances and interferences which were reported to police did not exactly correspond with the nuisances and interferences about which evidence of the particular nuisance or interference was given at the trial (ie, it appears there were many more reports made to police than were the subject of other evidence at the trial);
a lot of the calls made to police were made by Ms Woods,[203] albeit the number was not exactly quantified; and
a significant proportion of the calls made to police concerned domestic violence against Ms Woods;[204] including perpetrated against her by her son, Brian.
The Housing Authority, before the Magistrate, relied on all of the acts of nuisance and interference about which evidence was given (even if it had only made very brief submissions at the trial to identify some of the particular acts).
The Housing Authority accepted that the Magistrate had not made specific findings as to what particular conduct Ms Woods had permitted.[205] That concession was, in my view, properly made.
[3]
The first question which arises under s 75A(1)(b) and (c) of the Act turns on whether Ms Woods had permitted any of the conduct (nuisances and interferences). However, considering ss 75A(1) ‑ (4) of the Act together, whether Ms Woods had permitted all or some of the conduct was only the first step in what McKechnie J identified as a 'two stage process': Re Chief Magistrate Heath; ex parte Lawrence [2014] WASC 130 [23]. For the avoidance of doubt, no party suggested otherwise.
From the above analysis of the trial, the Magistrate's reasons and the parties' responses to the Propositions and Questions document, I have proceeded on the basis of the following 10 paragraphs.
The Housing Authority's only case before the Magistrate was that Ms Woods had 'permitted' the nuisances or interferences by her omission/s to prevent the nuisance or interference. So Propositions 4 and 5.2 provide guidance in this case as to the approach to be adopted.
The Chief Justice's judgment in City of Armadale v Neerigen Brook Estate (including Knox CJ's four propositions as referred to in footnote 190 from Adelaide Corporation) provides guidance as to whether Ms Woods had permitted such conduct as a factual matter and it was not suggested that it was unhelpful or inapplicable here.
There was no assertion that Ms Woods had given express permission or leave.
From that guidance as to the interpretation of 'permit', in my view, it is apparent that there must be some identification of the conduct (nuisances or interferences) said to be permitted. That is because there must be a relationship between the conduct complained of and, here, the asserted omission/s to prevent that conduct.
With respect, correctly in my view, the Magistrate stated that was the approach to be adopted, albeit her Honour did so more expressly in the second enquiry as to whether the conduct justified terminating the Tenancy Agreement: see her Honour's reasoning set out in [69[206]] above.206
In my view, the identification of the conduct (here the nuisances or interferences) would not necessarily need to be of individual acts of nuisance or interference, but may have been by a class or category. That would be sufficient if to do so would provide a sufficient description of the complained of nuisances so that the relationship between those and omissions/s could be assessed.
Further, and in any event, as with respect the Magistrate correctly identified, such identification of the conduct would also be necessary for the Court to carry out the second task of considering whether termination of the Tenancy Agreement was justified.
The nuisances or interferences relied upon here by the Housing Authority included domestic violence incidents against Ms Woods and in respect of which she had made calls to the police. Some, at least of those, involved her son, Brian. However, the Magistrate's reasons do not suggest that only Brian was involved in such domestic violence against Ms Woods. The Magistrate referred to Ms Woods being a victim of family violence and lacking any power to change or effect the behaviour of other people at the property.[207]
The Magistrate's findings, quoted in [98] above, to the effect that it was unlikely that Ms Woods could have stopped all of the behaviour (which was not identified) but had power to do more than she did, is to the effect that Ms Woods had not permitted all of the unidentified and undifferentiated nuisances and in[208]ferences.208
[4]
It is unnecessary for me to determine Ms Woods' other Grounds where I have upheld Ground 6.
However, in the event that I am wrong to uphold Ground 6 then I state for completeness my determination, in short form, of the other Grounds.
I would not have upheld Ground 1. With respect, I do not accept that the only circumstances in which a tenant 'permits' conduct is as set out in the Ground (in the second (a) ‑ (c) therein). I do not consider Ms Woods' formulation there is supported by the authorities which I have considered above (as to 'permit').
There is, in any event, in my judgement, a difficulty with determining Ground 1 in the circumstances where the nuisances and interferences complained of were not sufficiently identified by the Magistrate.
I would have upheld Ground 3. I would have accepted that where Ms Woods had called the police, then she could not be said, within the meaning of the Act, to have permitted the nuisance or interference which had caused the calling of the police, or which resulted from the calling of the police.
I would have upheld Ground 4 to the extent that the Magistrate had relied on the calling of the police by Ms Woods.
I would not have upheld Ground 4 to the extent that it relied on an acceptance of Ground 1.
[5]
I have upheld Ground 6.
I have found that the Magistrate made a jurisdictional error in making the Termination Order. Consequently, I would make an order setting the Termination Order aside.
I will hear the parties, as needs be, as to the formulation of final orders and any other orders.
[6]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[5] Its lack of significance is further illustrated by the Housing Authority's meticulously prepared counsel in this Court not being aware of the document until the second hearing in this Court: 2 July 2025 ts 31.
[7] Rayney v AW [2009] WASCA 203 [25] ‑ [27], [31] (McLure JA for the Court).
[14]
[8] See also Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [47] (Beech and Vaughan JJA); Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36; (2023) 414 ALR 26 [17] (Buss P, Mitchell and Beech JJA).
[15]
[9] In this respect, I accept the Housing Authority's submissions made by its further supplementary submissions filed 20 June 2025 [6].
[16]
[10] 'MJW-4' to Ms Woods' affidavit at page 55 and following.
[17]
[11] Tendered 18 October 2023 ts 4; 'MJW-4' to Ms Woods' affidavit at page 58.
[18]
[12] 'MS-1' to Ms Stevenson's affidavit at pages 6 - 35.
[19]
[13] Tendered 18 October 2023 ts 6; 'MJW-4' to Ms Woods' affidavit at page 60.
[20]
[14] 'MS-2' to Ms Stevenson's affidavit at pages 36 - 38.
[21]
[15] Tendered 18 October 2023 ts 7; 'MJW-4' to Ms Woods' affidavit at page 61.
[22]
[16] 'MS-3' to Ms Stevenson's affidavit at pages 39 - 44.
[23]
[17] Tendered 18 October 2023 ts 9; 'MJW-4' to Ms Woods' affidavit at page 63.
[24]
[18] 'MS-4' to Ms Stevenson's affidavit at page 45.
[25]
[19] Tendered 18 October 2023 ts 10; 'MJW-4' to Ms Woods' affidavit at page 64.
[26]
[20] 'MS-5' to Ms Stevenson's affidavit at pages 46 - 55.
[27]
[21] Tendered 18 October 2023 ts 10; 'MJW-4' to Ms Woods' affidavit at page 64.
[28]
[22] 'MS-6' to Ms Stevenson's affidavit at pages 56 - 59.
[29]
[23] Tendered 18 October 2023 ts 11; 'MJW-4' to Ms Woods' affidavit at page 65.
[30]
[24] 'MS-7' to Ms Stevenson's affidavit at page 60.
[31]
[25] Tendered 18 October 2023 ts 11; 'MJW-4' to Ms Woods' affidavit at page 65.
[32]
[26] 'MS-8' to Ms Stevenson's affidavit at pages 61 - 63.
[33]
[27] Tendered 18 October 2023 ts 12; 'MJW-4' to Ms Woods' affidavit at page 66.
[34]
[28] 'MS-9' to Ms Stevenson's affidavit at page 64.
[35]
[29] Tendered 18 October 2023 ts 12; 'MJW-4' to Ms Woods' affidavit at page 66.
[36]
[30] 'MS-10' to Ms Stevenson's affidavit at pages 65 - 70.
[37]
[31] Tendered 18 October 2023 ts 13; 'MJW-4' to Ms Woods' affidavit at page 67.
[38]
[32] 'MS-11' to Ms Stevenson's affidavit at pages 71 - 74.
[39]
[33] Tendered 18 October 2023 ts 57; 'MJW-4' to Ms Woods' affidavit at page 111.
[40]
[34] 'MS-12' to Ms Stevenson's affidavit at pages 75 - 78.
[41]
[35] Tendered 18 October 2023 ts 59; 'MJW-4' to Ms Woods' affidavit at page 113. Notwithstanding that this has a separate exhibit number, it appears to be the same document as exhibit 11, noted above. Ms Stevenson's affidavit adduces the other exhibits tendered in the Magistrates Court but not exhibit 13.
[37] Magistrate's reasons ts 4; 'MJW-3' to Ms Woods' affidavit at page 42.
[44]
[38] 18 October 2023 ts 14; 'MJW-4' to Ms Woods' affidavit at page 68.
[45]
[39] 18 October 2023 ts 5; 'MJW-4' to Ms Woods' affidavit at page 59.
[46]
[40] Tendered 18 October 2023 ts 5; 'MJW-4' to Ms Woods' affidavit at page 59.
[47]
[41] 'MS-2' to Ms Stevenson's affidavit at page 36.
[48]
[42] 'MS-2' to Ms Stevenson's affidavit at page 37.
[49]
[43] 'MS-2' to Ms Stevenson's affidavit at page 38.
[50]
[44] 'MS-4' to Ms Stevenson's affidavit at page 46.
[51]
[45] 'MS-5' to Ms Stevenson's affidavit at page 47.
[52]
[46] 'MS-5' to Ms Stevenson's affidavit at page 48.
[53]
[47] 'MS-5' to Ms Stevenson's affidavit at page 49.
[54]
[48] 'MS-5' to Ms Stevenson's affidavit at page 50.
[55]
[49] 'MS-5' to Ms Stevenson's affidavit at page 51.
[56]
[50] 'MS-5' to Ms Stevenson's affidavit at page 52.
[57]
[51] 'MS-5' to Ms Stevenson's affidavit at page 53.
[58]
[52] 'MS-5' to Ms Stevenson's affidavit at page 54.
[59]
[53] 'MS-5' to Ms Stevenson's affidavit at page 55.
[60]
[54] 'MS-8' to Ms Stevenson's affidavit at page 61.
[61]
[55] 'MS-8' to Ms Stevenson's affidavit at page 62.
[62]
[56] 'MS-8' to Ms Stevenson's affidavit at page 63.
[63]
[57] 'MS-10' to Ms Stevenson's affidavit at page 65.
[64]
[58] 'MS-10' to Ms Stevenson's affidavit at page 66.
[65]
[59] 'MS-10' to Ms Stevenson's affidavit at page 67.
[66]
[60] 'MS-10' to Ms Stevenson's affidavit at page 68.
[67]
[61] 'MS-10' to Ms Stevenson's affidavit at page 69.
[68]
[62] 'MS-10' to Ms Stevenson's affidavit at page 70.
Legislation Cited (4)
Residential Tenancy Act 1987(WA)
Tenancies Act 1987
Court Act 2004
Control Act 1988
Cases Cited (3)
Ms Woods is a person 'aggrieved' by the Termination Order and brings her application under ss 36(1)(b) or (c) of the MC Act. The application for a review order and for final relief were heard together.
The principles applicable to Ms Woods' application under the MC Act were stated as follows in Rayney v AW:[7]
s 36 is a judicial review power;
s 36(3) when read with s 36(1) provides the source and scope of this Court's power to make a review order;
judicial review as a supervisory function is distinct from an appeal or other review of the merits;
judicial review concerns itself solely with the legality of decisions and the focus is on jurisdictional errors;
the common law grounds of judicial review applicable to courts and analogous tribunals are significantly narrower than the grounds of review of decisions of administrative tribunals;
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 Magistrates Court;
a review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted;
satisfying the threshold for an error of a type identified in s 36(1)(c) is a precondition to the exercise of the power to grant a review order. Before a review order can be made the decision‑maker must have made (at least) an arguably reviewable error;[8] and
the expression 'that is just' in s 36(3) empowers this Court in appropriate circumstances to decline to make a review order even if the threshold test of a reviewable error has been established. The power is, in that limited sense, discretionary.
See also Re Magistrate Johnston; ex parte Wallam [2017] WASC 226 (ex parte Wallam) [20] - [26] in which Pritchard J, as she then was, applied the above principles to a review of a decision made under s 75A of the Act. And, there, Pritchard J also discussed the interaction between s 26(2) of the Act and s 36 of the MC Act.
Proposition 1: The hearing below, and in this Court, proceeded on the basis that there was, relevantly, a 'nuisance' or an 'interference' within the meaning respectively of the Act.
Proposition 2: The hearing below, and in this Court, proceeded on the basis that Ms Woods did not herself 'cause' a nuisance or herself 'interfere' or 'cause' the interference within either s 75A(1)(b) or (c) of the RT Act.
The Housing Authority submitted that the hearing proceeded in the Magistrates Court 'primarily' on the basis that Ms Woods did not cause the conduct herself but rather permitted the conduct by omission. The Housing Authority drew attention to evidence of Mr Farrugia which I have cited above as to the one incident.[165] Ms Woods accepted that submission of the Housing Authority, if it was understood that incident was the only instance of Ms Woods causing the 'nuisance' herself.[166]
Accordingly, Proposition 2 may be accepted save for that one incident. For the avoidance of doubt, I consider that is consistent with the evidence at trial.
Proposition 3: Using conduct to describe the nuisance and interference together, the case below turned on whether Ms Woods 'permitted' the conduct.
Proposition 4: The proper interpretation of 'permitted', in s 75A(1)(b) and (c) as a cognate of 'permit', is to be approached by reference to the principles and observations made by Quinlan CJ in City of Armadale v Neerigen Brook Estate Pty Ltd [2020] WASC 137 at [54] ‑ [68].
The Housing Authority accepted this fourth proposition.[168] As I understood it, Ms Woods also accepted this proposition as long as the question of interpretation was always considered within its statutory context.[169] With respect, that is what I understood the Chief Justice to be doing in the above cited passages.
Perhaps an analogous point was made by the Housing Authority by its submission that the principles and observations made by the Chief Justice, as identified above, did not prescribe distinct tests; and whether certain conduct had been permitted is a question of fact, to be inferred from all of the evidence and the conduct of the person said to have given permission. Again, this may be accepted as a general proposition and is in accordance with the Chief Justice's approach.
Proposition 5: Following those principles and observations: one may permit conduct by:
giving express permission or leave for that conduct: City of Armadale v Neerigen Brook Estate Pty Ltd [55], [61]; or
indifference or omission - to adopt the language of Knox CJ in Adelaide Corporation v Australasian Performing Right Association Ltd.[171]
The Housing Authority and Ms Woods[172] accepted this fifth proposition as far as it went. However, with respect, correctly in my view, the Housing Authority submitted that it was not 'necessarily possible to categorise all conduct into either giving express permission, or giving permission by omission'.[173] As I understood it, the Housing Authority's qualification to this proposition was not operative in the present facts. So much is apparent from the parties' acceptance of Proposition 7, as set out below.
Proposition 6: There was no assertion in the hearing below that Ms Woods had given express permission or leave for the conduct to occur.
Proposition 7: The case below proceeded on the basis that the Housing Authority asserted that Ms Woods had omitted to prevent the conduct and had thereby 'permitted' it.
The parties accepted this seventh proposition.[175]
Proposition 8: The Housing Authority did not identify in the Court below any particular acts as being the conduct[176] it relied on.
The Housing Authority did not accept this eighth proposition as expressed and submitted that in the Magistrates Court it had made 'very brief submissions' 'identifying the particular acts as being the conduct relied on'.[177] The page of the transcript which the Housing Authority referred to reflected that the Housing Authority had identified in the court below, in effect, all of the incidents about which evidence had been led. That leads, naturally enough, to the next proposition.
Proposition 9: As a result of Proposition 8 above, the Housing Authority should be taken to have relied in the Court below on all acts which were the subject of evidence led below as the 'conduct' (as defined in Proposition 3 above).
The Housing Authority accepted this ninth proposition.[178] Ms Woods accepted this proposition as well.[179] In the course of doing so, Ms Woods drew my attention to the Minor Case statement (filed below on 7 September 2023 by the Housing Authority).[180] In that document the Housing Authority said it relied on incidents set out therein at [3.1] ‑ [3.22]. A similar statement was not repeated at the trial by the Housing Authority.
Ms Woods submitted[181] that the lay advocate appearing for the Housing Authority[182] before the Magistrate had, in a global way, referred to each of the incidents in the Minor Case statement in its closing submissions before the Magistrate.
With respect, I do not think that is correct and do not accept the submission. The Housing Authority's advocate did (in a short closing) refer to 'incidents ... as alleged' but did not make any mention of the Minor Case statement. Further, that passage of the transcript,[183] when read in full, strongly suggests that the incidents 'as alleged' were those alleged by the documentary evidence tendered and the oral evidence given at the trial.
The Housing Authority subsequently supplied a copy of the Minor Case statement to the Court. I do not need, I think, to set out the incidents from [3.1] ‑ [3.22] here as:
not all of them were the subject of evidence at the trial;
none was, on its face, describing an incident of domestic violence or other violence against Ms Woods; about which there was evidence; and
the Magistrate did not expressly refer to the Minor Case statement or the incidents set out therein in her Reasons.
The acceptance of Proposition 9 is not inconsistent with the Housing Authority's submission on Proposition 8.
Proposition 10: The case below proceeded on a factual basis that Ms Woods had knowledge of the conduct at the material times.