Federal Court of Australia

Abraham v Housing Authority [2022] FCA 1145

ORDERS

THE COURT NOTES THAT:

1.    The applicant undertakes to the Court that he will:

(a)    continue to pay rent on the basis set out in the tenancy agreement dated 16 January 2020 as subsequently extended and/or varied; and

(b)    continue to pay arrears of water use charges in accordance with the payment plan under which he has made payment to date.

2.    The first respondent undertakes to the Court that it will join with the applicant to seek, by minute of consent or by application, a stay or adjournment sine die of Magistrates Court proceeding PER/RSTN/7669/2022 until the first to occur of the events described in s 46PP(3) of the Australian Human Rights Commission Act 1986 (Cth).

THE COURT ORDERS THAT:

1.    Pursuant to s 46PP of the Australian Human Rights Commission Act 1986 (Cth) and subject to paragraph 2 of these orders, the respondents must not, themselves or by their officers, employees or agents, take any step to effect the removal of the present occupants of the premises at 2/1 Skytown Place, Queens Park WA 6107 from those premises, or otherwise to obtain vacant possession of the premises, without first giving fourteen days' written notice to the applicant's solicitors.

2.    Nothing in the preceding paragraph prevents the first respondent from taking any step in Magistrates Court proceeding PER/RSTN/7669/2022 up to the time of any judgment given in that proceeding.

3.    There is liberty to apply to vary or discharge the above orders on 72 hours' advance written notice.

4.    No order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Mr Abraham, is a Noongar Aboriginal man. He lives in social housing provided by the first respondent, the Housing Authority, a statutory authority in Western Australia. The Housing Authority has given notice to Mr Abraham to vacate the property, and has commenced proceedings in the Magistrates Court of Western Australia to obtain vacant possession. Because the lease under which Mr Abraham occupied the property created a fixed term tenancy, and the term has expired, the Housing Authority does not need to show cause to obtain an order from the Magistrates Court under the Residential Tenancies Act 1987 (WA) (RTA) terminating the tenancy and giving possession of the property.

2    Mr Abraham has made a complaint to the Australian Human Rights Commission that the fixed term tenancy came about as a result of policies and practices that involve a distinction based on race, in breach of s 9(1) of the Racial Discrimination Act 1975 (Cth), alternatively s 9(1A) of that Act. In this Court, Mr Abraham sought an injunction under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) to prevent his eviction pending the outcome of the complaint. The respondents opposed the grant of the injunction.

3    At the hearing of the matter on 16 September 2022, I made orders under s 46PP of the AHRCA and received undertakings from the applicant and the first respondent. These are my reasons for making those orders and accepting those undertakings.

Factual background

4    This application is interlocutory in nature and it is not necessary or desirable to make firm findings of fact. Unless otherwise indicated, what follows is merely a description of the relevant evidence adduced.

5    Mr Abraham lives in a three bedroom home in a medium density housing complex in Queens Park, a suburb of Perth. The Housing Authority leases the premises for the purposes of providing public housing. Mr Abraham first moved in in January 2020. He did so under a tenancy agreement for a fixed six month term. The term was extended by four deeds of extension, each for a six month period.

6    The tenancy agreement permits three to six people to live at the premises, and it was granted to Mr Abraham on the basis that two of his nephews would live there with him. However there is evidence (in an affidavit of Kate Davis, a lawyer at SCALES Community Legal Centre, affirmed 24 August 2022) that from early in Mr Abraham's tenancy, family members came to stay with Mr Abraham because they were homeless. Mr Abraham's mother, Barbara Abraham, has affirmed an affidavit dated 6 September 2022 in which she says that Mr Abraham 'is a quiet and strong man, and he always steps up to help us'. Mrs Abraham's evidence is that John has looked after three of his nephews since they were little.

7    An officer of the Housing Authority, Sharon Bornshin, has affirmed an affidavit dated 14 September 2022 as to the circumstances of each extension of the tenancy. According to the Housing Authority's file for Mr Abraham, during the first term he breached his obligation to pay water use charges, and there was a concern about the cleanliness of the premises. There are records in respect of the second fixed term of complaints about nuisance or disruptive behaviour at the premises, and Mr Abraham failing to let officers of the Authority have access to the premises to inspect them. There are records of concerns similar to those in the first term having arisen during the third term. However it appears that none of those concerns were serious enough to lead the Housing Authority to refuse to renew the term of the tenancy.

8    During the fourth term, there were further similar concerns, as well as records of overcrowding, of arrears of rent, and of liability for damage to the property. An initial recommendation from within the Housing Authority to renew the tenancy was altered to a recommendation not to renew it, due to concerns about people living at the property who had not been declared to the Authority, as well as high unpaid water bills and property damage. Ms Bornshin recommended that the tenancy not be renewed if the Housing Authority was not able to get access to the premises. But ultimately she was able to get access, so the recommendation not to renew fell away and the fixed term was extended for a further six months, taking the term of the tenancy to an expiry date of 20 July 2022.

9    During that most recent six month term, Mr Abraham's parents were evicted from their home. They are in their 70s and are in poor health. They were caring for seven grandchildren and great grandchildren, sometimes more. In March 2022 Mr Abraham's parents and (at least) six of his other young relatives (who range in age from 2 years old up to 18 years old) came to live with Mr Abraham.

10    The Housing Authority decided not to offer any deed of extension of the most recently expired term. The reasons for that decision expressed in Ms Bornshin's affidavit are: the receipt of a large number of disruptive behaviour complaints since the start of the tenancy in January 2020; information that the police have been called to the premises an even larger number of times, albeit over a different term (April 2020 to January 2022); allegedly unpaid water and liability debts; and smashed windows at the premises. The Housing Authority claims that there are presently liabilities outstanding of $4,958.99 in relation to property damage and $521.77 in relation to water use charges.

11    The Housing Authority posted notice of termination of the residential tenancy agreement to Mr Abraham on 13 June 2022. Mr Abraham and his family have not vacated the premises. On 28 July 2022 the Housing Authority commenced proceedings in the Magistrates Court to terminate the tenancy. Those proceedings had been listed for hearing on 22 September 2022 but, due to the public holiday proclaimed to mark the death of Queen Elizabeth II, the hearing was relisted for 27 September 2022.

12    In the meantime, on 24 August 2022, Mr Abraham submitted a complaint of racial discrimination to the Commission. The content of the complaint will be described below, as will the evidence adduced in this Court that is said to support it. There was no evidence as to the status of that complaint other than the fact that it had been lodged. The respondents to the complaint are the Housing Authority and the second respondent to this application, the Director General of the Department of Communities. Both respondents had the same representation and no distinction was drawn between the position of the Housing Authority and the position of the Director General of the Department. These reasons will only refer to the Housing Authority.

13    Barbara Abraham's evidence is that if John Abraham is evicted 'we won't have any place to go to. Our family members who have houses are already filled with their family and children. It would be overcrowded like it has been here.' According to a family tree produced by Ms Davis, some seventeen family members are living at the property, including Mr Abraham himself and his parents.

14    Ms Abraham says that if her son John is evicted, she and her husband would 'go bush' and camp near Pinjarra, but during the current colder weather 'it's too cold for camping, it wouldn't be good for us, we are now in our 70s'. She does not know what would happen to the grandchildren they care for. Ms Davis affirmed an affidavit dated 6 September 2022 deposing to efforts to secure housing for members of the family, but as at that date those efforts had not borne fruit. She says in her affidavit of 24 August that 'leading agencies' have advised that they are already at capacity.

The applicant's case

15    Both parties filed written submissions and were represented by counsel at the hearing. Counsel for both parties focussed appropriately on the true issues in dispute, and counsel for the respondents properly made a number of necessary concessions, all of which has assisted the Court.

16    According to Mr Abraham, the issue underlying the application for the injunction was what he alleges is the Housing Authority's use of 'without ground' evictions in a disproportionately large number of cases involving Indigenous public housing tenants, compared to tenants who are not Indigenous. This, he says, denies Indigenous tenants the ability to challenge an eviction and put their side of the case, in circumstances where many of them are at risk of homelessness.

17    This is articulated in the particulars of the complaint that Mr Abraham has made to the Commission. It is both a complaint by Mr Abraham on his own behalf and a representative complaint on behalf of a group of people who are Aboriginal current, former or prospective tenants of the Housing Authority.

18    The particulars to the complaint claim that the 'rate of evictions of indigenous tenants by the Housing Authority is unreasonably high in comparison to other state public housing providers'. This is said to impair the fundamental right to housing of Mr Abraham and the group he represents. It is alleged that the 'data showing disproportionate use of fixed term tenancies and s64 termination notices by the Housing Authority against Aboriginal tenants demonstrates that the policies and practices involve a distinction based on race'. Data said to show that are described in the complaint but, as will be seen, whether Mr Abraham had adduced sufficient evidence of that was an issue in this proceeding, so it is convenient to describe that evidence in that context rather than in the context of describing the claims made in the complaint.

19    The complaint goes on to discuss what it says are discriminatory policies, procedures and practices of the Housing Authority. A central set of allegations are (italics in the original, footnotes omitted):

3.1.2    The Housing Authority disproportionately uses without grounds terminations against Aboriginal tenants. The Housing Authority generally provides public housing tenants with periodic (ongoing) tenancy agreements. If seeking to terminate these tenancies, the Housing Authority will generally use the 'for cause' termination provisions in the RTA. In the usual situation, where 'for cause' provisions are relied upon, if the tenant doesn't vacate in accordance with the Termination Notice, the Housing Authority must then satisfy the Magistrates Court that the termination of the tenancy under the RTA is justified. The Supreme Court of WA has set out a number of matters that the Magistrates Court must consider when assessing whether a termination is justified, including the interests of any children in the home, the likelihood of homelessness, among other matters.

3.1.3     However, there are two ways that the Housing Authority departs from this general approach; firstly, the use of fixed term tenancies and secondly the use of s64 without grounds terminations. These practices avoid any substantive oversight over such evictions by the Magistrates Court (or indeed any other authority). The use of fixed term tenancies and s 64 notices: (i) deprives tenants of the protection of review by the Magistrates Court and the beneficial provisions of the RTA, (ii) provides very insecure housing, and (iii) often results in eviction to homelessness. This approach is disproportionately used against Aboriginal tenants and thus offends against the [Racial Discrimination Act].

20    The complaint points to provisions elsewhere in the RTA permitting the eviction of tenants who have breached their lease, damaged property or caused nuisance to neighbours, including specific provision for social housing tenants. But rather than rely on those provisions, it says, the Housing Authority uses fixed term tenancies as a 'no fault' way of evicting tenants without having to allege or prove grounds for eviction. In doing this for disproportionately more Aboriginal tenants, it is said, the Housing Authority discriminates on grounds of race.

21    Mr Abraham's written submissions in this Court said that '[c]lear and complete data of the practice is difficult to obtain, many attempts to obtain it from the Housing Authority have been unsuccessful'. The evidence adduced on Mr Abraham's behalf relied on the experience of community legal centres that help socially disadvantaged tenants and data available to them. In summary, that evidence was as follows:

(1)    Statistics from data kept by the community legal centre, Circle Green, indicate that about 30% of termination cases from public housing on its database involve Aboriginal and/or Torres Strait Islander clients, likely more, especially since Aboriginal tenants are more likely to go to local tenancy advocates or the specialist Aboriginal housing service, Day Dawn Advocacy.

(2)    Hearsay evidence that a manager at the Housing Authority said at a meeting that anecdotally he would expect that 50%/60% of evictions from public housing in Western Australia are Aboriginal families.

(3)    The Department of Communities has confirmed to Ms Davis that it can readily obtain the numbers of fixed term tenancies provided to Aboriginal and Torres Strait Islander tenants and other tenants respectively.

(4)    Affidavit evidence from Alice Pennycott, a lawyer employed by Circle Green. Ms Pennycott said that Circle Green is the main funded community legal centre working in the area of residential tenancy and housing rights in Western Australia. It has access to a database used by a predecessor service, Tenancy WA, as well as all community legal centres, which records various details about clients and the kinds of assistance they seek. Ms Pennycott was able to identify 90 services over the period 2014 to 2020 that involved RTA s 64 terminations or end of fixed term terminations, where the Housing Authority was the lessor. Of those, 53 could be identified as having been provided to Aboriginal clients, and a further five were in relation to Aboriginal housing that is managed by the Housing Authority. For 19 matters, whether or not the clients were Aboriginal was unknown. Ms Pennycott believes that inconsistencies in data and difficulties in extracting it mean those numbers underrepresent the actual number of services provided to Aboriginal tenants.

22    Mr Abraham submitted that in order for the question to be properly and appropriately determined, the Commission needs time to consider the matter, and that the Housing Authority should not be able to evict him and his family in the meantime. He points to the serious consequences for them if this is permitted to occur.

Statutory framework

23    A number of pieces of legislation bear on this matter. First, there is the RTA. It was common ground that it applies to the tenancy agreement between Mr Abraham and the Housing Authority. Relevant provisions are mostly found in Part V, concerning the termination of residential tenancy agreements. In particular, s 60 confines the circumstances in which such an agreement will terminate. Section 62 authorises notice of termination by a lessor on the ground of breach of a term of the agreement. Section 64, which has already been mentioned, essentially permits termination on 60 days' notice without cause, but not in the case of tenancies for a fixed term. Termination under those tenancies is governed by s 70A, which essentially permits termination on 30 days' notice without cause once the fixed term has expired.

24    Division 4 of Part V of the RTA makes provision for when and how the service of such notices will lead to the termination of the tenancy. That includes that an agreement will be terminated where: the lessor or tenant gives a notice of termination other than notice at the end of a fixed term tenancy under s 70A; the tenant fails to deliver up vacant possession; and a competent court, upon application, terminates the agreement under s 71. It also includes, in the case of a tenancy for a fixed term, where: notice of termination is given under s 70A, and the tenant fails to deliver up possession; and a competent court, upon application by the lessor, terminates the agreement under s 72. The Magistrates Court is a competent court with exclusive jurisdiction over such matters: s 3, s 12, and s 12A.

25    In this case, the Housing Authority has served notice of termination under s 70A of the RTA and made application under s 72. In such an application, and with a presently immaterial exception, the Magistrates Court is obliged to make an order terminating the tenancy agreement and an order for possession of the premises: s 72(2); Ashwin v Housing Authority [2019] WASC 144 at [93]-[94] (Smith J). The Magistrates Court has power to suspend the operation of the orders for a maximum period of 30 days: s 72(3)(a). There are also provisions permitting applications for termination in cases of the tenant causing serious damage or injury (s 73), or in cases of objectionable behaviour in relation to a social housing tenancy agreement (s 75A).

26    Next, there is the Racial Discrimination Act. For present purposes it is only necessary to refer to s 9(1), which says:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

27    Finally, there is the AHRCA. It establishes the Commission, with functions including to inquire into and attempt to conciliate complaints of unlawful discrimination: s 11(1)(aa). Detailed provisions as to that function are found in Part IIB - Redress for unlawful discrimination.

28    Part IIB Division 1 of the AHRCA provides for conciliation of complaints by the Commission. Under s 46P, a written complaint may be lodged with the Commission. That is what Mr Abraham has done here. Section 46P(1A) requires that it be reasonably arguable that the acts, omissions or practices alleged in the complaint are unlawful discrimination. Section 46P(2)(a) provides for the complaint to be lodged by the complainant on their own behalf or on behalf of one or more other persons who are aggrieved, and s 46PB imposes certain conditions for a representative complaint. Mr Abraham's complaint here is made on his own behalf and on behalf of a wider class of people who are Aboriginal current, former, or prospective tenants of the Housing Authority, including further members of the Abraham family.

29    If a complaint is made under s 46P of the AHRCA, it must be referred to the President of the Commission: s 46PD. Under s 46PF(1), the President must consider whether to inquire into the complaint having regard to certain specified matters, and may terminate the complaint without inquiry. The President has power to hold conciliation conferences: s 46PJ. She has compulsory powers to obtain information relevant to an inquiry under Division 1: s 46PI.

30    The AHRCA makes provision for complaints to end in various different circumstances. They may be withdrawn with the President's leave: s 46PG. The President may also terminate a complaint on various grounds, including where she is satisfied that the alleged acts, omissions or practices are not unlawful discrimination: s 46PH(1). The President must terminate the complaint if satisfied that it is 'trivial, vexatious, misconceived or lacking in substance', or if 'there is no reasonable prospect of the matter being settled by conciliation': s 46PH(1B). The President must also terminate the complaint if satisfied that there would be no reasonable prospect that the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) would be satisfied that the alleged acts, omissions or practices are unlawful discrimination: s 46PH(1C).

31    Termination of a complaint on various grounds is a necessary precondition to the commencement of court proceedings. That is because a person who was 'an affected person in relation to the complaint' may make an application to this Court or to the Circuit Court alleging unlawful discrimination only if the complaint has been terminated on specified grounds and the President has given notice of termination (and with respect to some grounds of termination, if leave is given by the court): s 46PO(1) and s 46PO(3A). The unlawful discrimination alleged in the application to the court 'must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint' or 'must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint': s 46PO(3).

32    The court has power to grant a wide range of remedies if satisfied that there has been unlawful discrimination by a respondent, including an order requiring the respondent to vary the termination of a contract or agreement: s 46PO(4)(e). Section 46PO(6) authorises the court concerned to grant an interim injunction pending the determination of the proceedings.

33    Those provisions operate only if a proceeding alleging unlawful discrimination has been commenced in a court, which is not the case in this proceeding. The application in this case is brought under s 46PP of the AHRCA, which states:

46PP    Interim injunction to maintain status quo etc.

(1)    At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may grant an interim injunction to maintain:

(a)    the status quo, as it existed immediately before the complaint was lodged; or

(b)    the rights of any complainant, respondent or affected person.

(2)    The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

(3)    The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.

(4)    The court concerned may discharge or vary an injunction granted under this section.

(5)    The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

34    The only other provision of the AHRCA which need be noted here is s 46PR, which provides that this Court (and the Circuit Court) 'are not bound by technicalities or legal forms' (subject to Chapter III of the Constitution).

The purpose of s 46PP

35    The Housing Authority's principal submissions against the granting of any injunction depended on the purpose of the power under s 46PP. The Authority referred to the usual considerations that govern the grant of interlocutory injunctions, namely whether there is a serious question to be tried and the balance of convenience. It acknowledged that these principles need to be applied having regard to the particular statutory context. It submitted that in that context, whether there is a serious question to be tried should depend on both:

(a)    whether the complaint is not fanciful or so lacking in merit that any reasonable Commission would decline to entertain it; and

(b)    whether there is a probability of an entitlement to a remedy in this Court.

36    The Housing Authority did not submit that Mr Abraham's complaint fell short in relation to the first of these, but on grounds described below the Authority did submit that the complaint failed to satisfy the second. As will be explained, that was essentially because there was no evidence, the Authority said, to support the allegation that its policies, procedures and practices involved discrimination on grounds of race.

37    However in my view there is no strict requirement on an applicant under s 46PP to satisfy the Court at the time of making that application that if the subject matter of the complaint becomes the subject matter of an application to the Court seeking remedies for unlawful discrimination, there is a probability of success in that latter application. In exercising statutory injunction powers, the court is not constrained by the traditional methods of equity, even though those methods represent a sound basis for undertaking a preliminary assessment which should then be reviewed against the statutory context: see Australian Securities and Investments Commission v Triton Underwriting Insurance Agency Pty Ltd [2003] NSWSC 1145 at [25] (Barrett J). Relevant features of the statutory context here are that an application under s 46PP(1) is only open to be made while a complaint is current: s 46PP(1) and s 46PP(3). Section 46PP(1) expressly provides that the purpose of the injunction is the maintenance of the status quo before the complaint and maintenance of the rights of any complainant, respondent to the complaint or affected person. These aspects of the statutory power indicate that it was granted in order to help preserve the effectiveness of the inquiry and conciliation processes of the Commission in relation to a complaint. It should be exercised principally with that purpose in mind.

38    That is consistent with the course of authority on s 46PP in this Court. The Housing Authority relied on an observation of Emmett J in Li v Minister for Immigration & Multicultural Affairs [2001] FCA 1414 at [36] that the power or jurisdiction conferred by s 46PP 'is limited to the orders necessary to ensure the effective exercise of the powers of the Commission and the jurisdiction of the Court in the event of an application being made to the Court under the [AHRCA] following the determination of a complaint'. But it does not appear that the purpose of the power was in issue before Emmett J and in any event his Honour's reference to ensuring the effective exercise of the jurisdiction of the Court does not mean that the application must fail unless a serious case to be tried (or a probability of success) in the Court is demonstrated at the time of making the application under s 46PP.

39    The scope and purpose of the power was, however, in issue in Carlsson v Ford [2019] FCA 584. The consideration of the issue by Besanko J appears at [25]-[28]:

[25]    The applicant points to the terms of s 46PP of the Act and makes the point that there is no other relevant proceeding before the Court other than the application for an interim injunction under that section. He submits that the character of the injunction sought does not 'partake entirely of the injunction available in the exercise of equitable jurisdiction'. He submits that the usual requirement that a plaintiff must be able to show a sufficient colour of right to the final relief in aid of which the [interim] relief is sought (Australian Broadcasting Commission v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 190 [sic 199] per Gleeson CJ at [9] and [11]) is subject to significant modification. He points to the fact that no final relief can be sought in the application because the Court's jurisdiction does not arise unless and until a complaint has been terminated by the President of the Commission. The applicant submits that the remedy provided by s 46PP of the Act is sui juris [sic generis] and that it extends to the grant of an injunction quia timet. He contends that the jurisdiction must be exercised in a manner which is consistent with the objects of the Act and that includes the effective exercise of the right of the applicant to lodge a complaint (Picos v Servcorp Limited [2014] FCA 922).

[26]    For their part, the respondents submit, as I understood it, that there was no practical difference in this case between the test for an interim injunction under s 46PP of the Act (a complaint pending before the Commission), and the test for an interim injunction under s 46PO(6) of the Act (complaint terminated and proceedings pending before the Court). That is because it should be assumed that the complaint will not be settled by conciliation and the complaint will be terminated. Furthermore, it should also be assumed that the complaint will be terminated under s 46PH(1C) because the President will be satisfied that there is no reasonable prospect that the Federal Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.

[27]    The respondents' submission is that the usual tests on an interlocutory injunction apply (as to which see Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57; Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238).

[28]    I do not accept the respondents' argument. It seems to me that the two powers (i.e., ss 46PP and 46PO(6)) operate in two different contexts. Section 46PP is designed to empower a court to grant relief in an appropriate case to an applicant who has a complaint pending and by reason of that fact is unable, at least in the ordinary case, to bring substantive proceedings in the Court. The section provides that an applicant is not required to give the usual undertaking as to damages. The usual tests on an interim or interlocutory injunction must be applied having regard to that context. Of course, a claim without any merit would not form the basis for an injunction under s 46PP, but that is not this case. By contrast, a claim for an interim injunction under s 46PO(6) after proceedings have been commenced and pending the determination of the proceedings involves the usual tests for an injunction. At the risk of stating the obvious, an interim injunction might be granted under s 46PP, but on the complaint being terminated and a proceeding in the Court instituted, not under s 46PO(6).

40    In Daccache v BOC Ltd [2020] FCA 485 at [30], McKerracher J relied on that passage to hold as follows (italics in original):

I consider that the purpose of s 46PP is to protect the complaint-making and resolution process. The mediation role of the Commission is facilitated by the interim preservation of the status quo, ensuring in an appropriate case, as close to a level playing field as possible, while attempts to achieve a conciliated outcome are pursued.

41    I respectfully agree with Besanko J's analysis in Carlsson and McKerracher J's summary of it in Daccache. Those passages are inconsistent with any proposition that a s 46PP application must fail if there is insufficient evidence, at the time of the s 46PP application, to establish that there will be a probability of success in a later court application under s 46PO.

42    Once the principal purpose of s 46PP is understood to be the preservation of the processes of the Commission, it becomes apparent that an asserted lack of evidence is not fatal to an application under that section. Aspects of the Commission's functions involve inquiring into a complaint, including with the assistance of compulsory powers to obtain information. It will be open to the Court, in appropriate circumstances, to grant an injunction in order to allow those processes to take their course and in making a decision under s 46PP the Court is entitled to take into account the possibility that the Commission's processes will bring relevant material to light. That is not mere speculation, for that possibility, arising out of the Commission's statutory process, is one of the things that s 46PP is designed to protect.

43    Another case on which the parties relied, Wood v Lee-Joe [2013] FCCA 1665 at [12] and [26] (Judge Manousaridis), can be read to suggest that an applicant must always produce evidence which, if that evidence remains the same in court, establish a probability that the applicant will be held to be entitled to relief. Counsel for the Housing Authority described it as a 'dual limb approach' under which both the maintenance of the Commission's processes and the maintenance of prospective relief in this Court are important. However if Wood is indeed authority that an applicant under s 46PP must satisfy both of those 'limbs', I observe that it was decided before Carlsson, and I respectfully decline to follow it.

44    I do not suggest that counsel for the Housing Authority put it so strongly as to say that unless both 'limbs' are satisfied, an application under s 46PP must fail. But in mounting a defence of the injunction application based principally on an asserted absence of evidence adduced now establishing unlawful discrimination, the Authority's submissions invited the Court to focus on the wrong question. The focus must instead be on whether it is appropriate to grant the injunction to preserve the status quo that subsisted before the complaint was made to the Commission and, by extension, to preserve the utility and effectiveness of the Commission's functions of inquiry and conciliation. As Besanko J acknowledged in Carlsson, a claim without any merit would not form the basis for an injunction under s 46PP. But to posit that there is insufficient evidence, at this stage, to establish Mr Abraham's claim does not mean that it has no merit, especially when that merit has to be assessed in the context of the particular non-curial process to which s 46PP is directed.

The Housing Authority's submission that there was no serious question to be tried

45    Turning in that context to consider the Housing Authority's submission that there is no serious question to be tried, the submission is based on the following alleged matters:

(1)    In terms of the elements of s 9(1) of the Racial Discrimination Act, the Authority does not contest that by seeking the termination of Mr Abraham's tenancy, it has done an act that has the potential effect of impairing his human rights to housing. The issue, though, is whether the Authority's actions were based on race.

(2)    Mr Abraham's complaint that they were based on race depends on whether the Authority has adopted a policy or practice which means that the Authority uses 'without cause' terminations in a disproportionately high number of cases where tenants are Aboriginal. In assessing whether there was discrimination, it is necessary to make comparisons: see Wotton v State of Queensland (No 5) [2016] FCA 1457 at [539] (Mortimer J). Here, that requires comparison between the circumstances of Aboriginal tenants and the circumstances of tenants who are not Aboriginal.

(3)    There is no evidence of any written policy of the Authority favouring without cause terminations in the case of Aboriginal tenants. The Authority's written policy on the subject of granting fixed term tenancies, in so far as it is relevant, says that this will happen after an 'Adverse History Assessment' has been completed. It makes no reference to race.

(4)    Nor was disproportionately high use of without cause terminations for Aboriginal tenants established by Ms Davis's evidence that about 30% of cases where Circle Green have assisted tenants facing termination involve Aboriginal tenants. That said nothing about how many of those are without cause terminations.

(5)    The same may be said of the hearsay evidence from the Housing Authority manager that anecdotally he would expect that 50%/60% of evictions from public housing in Western Australia are Aboriginal families.

(6)    Ms Pennycott's evidence that 53 (or 58) out of 90 clients of tenancy legal services who were facing without cause terminations were Aboriginal does not provide a logical or sufficient basis for the proposition that such action was taken against Mr Abraham based on race, because there is no evidence that permits the Aboriginal persons whose tenancies have been terminated on that basis to be compared to non-Aboriginal tenants with a similarly serious track record of non-compliance with tenancy conditions.

46    I will assume, without deciding, that these arguments would provide a sound basis for dismissing any application under s 46PO if it were to be based solely on the evidence that Mr Abraham has adduced to date, even if that evidence were to be accepted in its entirety in that application. But for the reasons given, that is not the test in relation to s 46PP, or at least is not a test that must be applied in all circumstances. The ultimate question for the Court is whether justice requires an injunction to maintain the status quo, or the rights of the applicant, and that has to be answered where the purpose of the provision is to protect the effectiveness and utility of the processes of the Commission. Those processes may continue and may prove effective even if Mr Abraham presently has insufficient evidence that could be adduced in a court of law to establish a claim for unlawful discrimination; a claim that he has not yet brought and cannot yet bring. The effectiveness of those processes may follow from one or both of an inquiry by the Commission (potentially assisted by its information gathering powers) and a successful conciliation process. The Court has no basis to proceed on an assumption that those things will not bear fruit (nor to assume that they will), noting the evidence that ongoing attempts are being made to find alternative arrangements for housing Mr Abraham and his family.

47    Further, the Court is entitled to take into account the stage at which the proceeding has been brought - in this case, before Mr Abraham even has a right to commence court proceedings to seek vindication of an allegation of unlawful discrimination - along with the urgency with which those assisting him have had to bring the application, and the fact that the statistical evidence which the Housing Authority says is lacking is uniquely in the possession of the Authority. There is evidence of the latter point in Ms Davis's affidavits.

48    The determination of whether there is a serious (or prima facie) case 'does not call for a substantial inquiry', and it is recognised it occurs before the advantages of discovery and other procedural aids: see Apotex v Les Laboratoires Servier (No 2) [2012] FCA 748 at [18] (Bennett J). Thus in Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159 at 163, Forster, Woodward and Wilcox JJ said:

However, applying the 'serious question' test, it is clear that the inquiry whether there is a serious question to be tried must be answered with reference to the circumstances of the case. There may be cases in which the facts are so clearly and comprehensively established at the time of the application for the interim order that the court would conclude that the applicant had no arguable case. At the opposite extreme there may be cases in which the applicant has had little opportunity to ascertain the facts and to adduce evidence but there is some material to suggest an entitlement to relief. Upon further investigation that material may turn out to be capable of ready refutation or explanation but, in the meantime, it may be appropriate for the court to intervene. Everything must depend upon the circumstances of the case, including the extent to which the applicant has had an opportunity to present the facts to the court and the consequences of granting or of refusing relief. This is what was meant by Woodward J when, in Bullock [v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464] (at 472) and in Jungpradit v Hurford (unreported, Woodward J, 21 August 1985), he spoke of considering together the two tests of 'serious question' and 'balance of convenience'. The overriding principle is that referred to by Dawson J in [A v] Hayden [(1984) 59 ALJR 1] (at 5) 'that a court ought not to be misled by an overstrict application of verbal formulae to depart from its primary duty to do complete justice in the cause'.

Appropriate to grant injunction

49    With those principles in mind, and in view of where the balance of convenience lies (see below) I determined that it was appropriate to intervene here. I took judicial notice of the fact that the percentage of the general population who identify as Aboriginal is lower, by an order of magnitude, than the high percentage (a majority) of clients seeking assistance for without cause terminations who are Aboriginal, as suggested by Ms Pennycott's evidence. That in itself is suggestive of a disproportionate use of without cause terminations for Aboriginal tenants as distinct from non-Aboriginal tenants. It is true that this could also be explained by other matters such as, for example, a higher rate of Aboriginal people occupying social housing in the first place, but the Housing Authority produced no evidence of this. The relevant statistics are in the Authority's power, the dispute is at an early stage, and the purpose of the injunction power is to protect processes of the Commission which do not require evidence that could be adduced in a court of law in order to proceed. I therefore considered that the fact and contents of the complaint, which the Authority disputes but tacitly accepts the Commission may entertain, along with the evidence that had been adduced to support it, were sufficient in the present circumstances to favour the Court intervening to preserve the status quo.

50    The Authority also relied on the specific evidence about the circumstances of Mr Abraham's tenancy, including the high number of disruptive behaviour complaints and the even higher number of times the police have been called to the premises between April 2020 and January 2022. It submitted that those matters, as well as unpaid water and (contested) tenant liability debts, and smashed windows at the premises, explained the decision to pursue the termination of the tenancy; not racial discrimination. But even if that is so, it would not address Mr Abraham's complaint that the ability to pursue a without cause termination after the expiry of a fixed term tenancy is the result of different treatment that is based on race.

Balance of convenience

51    The need for intervention was also supported by the likelihood that if the Magistrates Court proceeding runs its course, the consequence for Mr Abraham and his family will be homelessness. That will include children. The Authority rightly conceded that this weighs very heavily in the balance of convenience. It also rightly conceded that damages would not be an adequate remedy.

52    I accept, as the Authority submitted, that it has a legitimate countervailing interest in achieving a situation where other residents of the housing complex and other neighbours can live without disturbance. I also accept that the factor of whether there is a serious question to be tried and the factor of balance of convenience bear on each other, so that if the serious question is weak, an applicant may be required to show a relatively stronger case in relation to balance of convenience: see e.g. Daccache at [27]. Nevertheless, the gravity of the consequences for Mr Abraham, his elderly parents and the children who live with them is such that even allowing for the relatively sparse nature of the evidence to establish the claim of unlawful discrimination, I considered it to be in the interests of justice to preserve the status quo by granting an injunction that would allow those persons to stay in the home pending, at least, the completion of the Commission's inquiries and conciliation. The interests of the Authority in minimising disturbances at the property cannot outweigh that, in the circumstances. There was no direct evidence from neighbouring residents as to the effect of any disruptive behaviour on them and no suggestion of any imminent risk to the safety of any person.

Form of the injunction and undertakings

53    There were issues at the hearing about the form of any injunction to be granted, and whether undertakings should be required. These were largely resolved as a result of discussion between bench and bar table and conferral between the parties. But it is appropriate to describe them briefly.

54    The main concern that I had about the form any injunction was to take concerned judicial comity, given that any injunction had the potential to interfere with the proceedings in the Magistrates Court. In CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345, the plurality (at 395-396) adopted the following explanation of comity from Hilton v Guyot (1895) 159 US 113 at 163-164:

'Comity', in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

55    Thus, in CSR it was said (at 396):

For this reason, the cases also emphasise that the power to grant injunctions in restraint of foreign proceedings should be exercised with caution. And that is so whether the injunction is sought in the exercise of the inherent or equitable jurisdiction.

56    In Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 265 FCR 1 at [11], Allsop CJ expressed emphatic agreement with the application of those principles to comity between State and Territory Supreme Courts and the Federal Court. No submission was made to me that the status of the Magistrates Court as an inferior court made any difference. I was therefore concerned to minimise any incursion on the processes of the Magistrates Court that might have been occasioned by any injunction granted by this Court.

57    In the end, though, the issue was resolved (at least for present purposes) by the parties' agreement that if this Court were minded to grant an injunction restraining the eviction of Mr Abraham, it would be appropriate for them to approach the Magistrates Court to seek a stay of the proceeding in that court. That is reflected in an undertaking that the Authority gave to this Court. But the injunction itself is framed so as not to interfere with the Magistrates Court process.

58    Other issues about the form of the injunction concerned the parties' understandable desire to make provision for certain contingencies. For example, the Housing Authority pointed out that an injunction prohibiting it from taking any steps to gain possession of the premises would prohibit even a proceeding in which it sought to 'show cause', which would have been outside the scope of Mr Abraham's complaint of unlawful discrimination. However it said it had no intention at present of pursuing a 'for cause' eviction. Given the uncertainty around that, and given the remaining uncertainty about the course of the Magistrates Court proceeding, I considered it preferable not to attempt to make provision for every contingency but rather to frame the injunction as a restraint on relevant steps without 14 days' advance notice, with liberty to apply within that time to discharge or vary the injunction. As undesirable as it can often be for the Court to engage in ongoing supervision of the parties' conduct, I considered it necessary to make provision for that in this case. In light of the terms of s 46PP(3) of the AHRCA and the purpose of the statutory power, however, I did accept a submission by the Housing Authority that the injunction should terminate if the complaint to the Commission terminates in any of the circumstances contemplated in the section.

59    Another issue concerned a suggestion in the evidence (I put it no higher than that) that Mr Abraham may stop paying rent at the premises, as well as a submission by the Authority that any injunction should be conditional on compliance with the terms of the existing tenancy agreement as well as payment of alleged unpaid water use charges and liability for property damage. Mr Abraham did not concede the liability for property damage, but did concede the liability for water use charges (which, his senior counsel said, he is already paying under a payment plan). And he did through senior counsel confirm his intention to keep paying rent. Undertakings about both those conceded matters were proffered and in the circumstances I considered it appropriate to accept those undertakings, and to require no further undertaking.

60    The Court records its gratitude to Mr Shanahan SC and to SCALES Community Legal Centre for acting on a pro bono basis. In light of their agreement to do so, there was no issue about the costs of the injunction and it was appropriate to confirm that there would be no order as to costs.

Associate:

Dated:    23 September 2022