Abraham v Housing Authority

• Jurisdiction: Australia Federal only
• Judgment Date: 16 September 2022
• Neutral Citation: [2022] FCA 1145
• Date: 16 September 2022
• Court: Federal Court

Federal Court of Australia

Abraham v Housing Authority [2022] FCA 1145

File number:	WAD 173 of 2022
Judgment of:	JACKSON J
Date of judgment:	16 September 2022
Date of publication of reasons:	23 September 2022
Catchwords:	HUMAN RIGHTS - urgent application for injunction under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) - pending application in Magistrates Court of Western Australia - complaint of alleged racial discrimination made to Australian Human Rights Commission - purpose of s 46PP - preservation of effectiveness of Commission's processes - serious question to be tried - balance of convenience - form of injunction - issues of judicial comity - injunction granted
Legislation:	Racial Discrimination Act 1975 (Cth) s 9 Residential Tenancies Act 1987 (Cth) ss 3, 12, 12A, 60, 62, 64, 70A, 71, 72, 73, 75A, Part V Division 4 Australian Human Rights Commission Act 1986 (Cth) ss 11, 46P, 46PB, 46PD, 46PF, 46PG, 46PH, 46PI, 46PJ, 46PO, 46PP, 46PR, Part IIB Division 1
Cases cited:	Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159 Apotex v Les Laboratoires Servier (No 2) [2012] FCA 748 Ashwin v Housing Authority [2019] WASC 144 Australian Securities and Investments Commission v Triton Underwriting Insurance Agency Pty Ltd [2003] NSWSC 1145 Carlsson v Ford [2019] FCA 584 CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 Daccache v BOC Ltd [2020] FCA 485 Hilton v Guyot (1895) 159 US 113 Li v Minister for Immigration & Multicultural Affairs [2001] FCA 1414 Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 265 FCR 1 Wood v Lee-Joe [2013] FCCA 1665 Wotton v State of Queensland (No 5) [2016] FCA 1457
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	60
Date of hearing:	16 September 2022
Counsel for the Applicant:	Mr CP Shanahan SC
Solicitor for the Applicant:	SCALES Community Legal Centre
Counsel for the Respondents:	Mr TE Pontré
Solicitor for the Respondents:	Department of Communities, Legal & Business Services

ORDERS

		WAD 173 of 2022
BETWEEN:	JOHN ABRAHAM Applicant
AND:	HOUSING AUTHORITY First Respondent ; DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES Second Respondent

order made by:	JACKSON J
DATE OF ORDER:	16 SEPTEMBER 2022

THE COURT NOTES THAT:

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

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

2. 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...