Abdul Karim Augustine Elisha v Department of Community Services - Housing NSW

[2020] NSWSC 1092

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Abdul Karim Augustine Elisha v Department of Community Services - Housing NSW [2020] NSWSC 1092

Hearing dates:

14 August 2020

Date of orders:

14 August 2020

Decision date:

14 August 2020

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) the proceedings commenced by way of statement of claim on 18 February, 2020 are dismissed.

(2) There is no order as to costs.

Catchwords:

CIVIL PROCEDURE - summary dismissal - decision of the Department of Housing NSW - refusal of priority housing - where statement of claim discloses no cause of action - allegation of discrimination - reasons for delay

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Uniform Civil Procedure Rules 2005 (NSW), r 13.4, r 14.28, r 51.61, r 59.10

Cases Cited:

Dyason v Butterworth [2015] NSWCA 52

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71

Category:

Procedural and other rulings

Parties:

Abdul Karim Augustine Elisha (Plaintiff)
Department of Community Services - Housing NSW (Defendant )

Representation:

Counsel:

Solicitors:
Abdul Karim Augustine Elisha (Self Represented)
Department of Communities and Justice NSW (Defendant)

File Number(s):

2020/53043

JUDGMENT (REVISED FROM EX TEMPORE)

1. By notice of motion filed on 1 June 2020, the Department of Family and Community Services - Housing (“the Department”) seeks summary dismissal of proceedings brought against it by Abdul Karim Augustine Elisha pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Alternatively, it seeks an order that the statement of claim be struck out in whole under r 14.28 of the UCPR. Those provisions provide the following:

13.4 Frivolous and vexatious proceedings

(1)  If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

2. Mr Elisha brings the proceedings in person and is unrepresented at the hearing before me today. The Department is represented by Mr Fester, who is a solicitor employed as a lawyer within the Department.

3. Although it was the applicant on the motion, the Department, did not rely upon any affidavit in support of its motion. UCPR r 51.61 provides that such a motion must be supported by an affidavit. It was submitted that instead of an affidavit, the applicant relied upon the statement of claim in its terms. In any event, having regard to s 56 of the Civil Procedure Act 2005 (NSW) and given the issues to be considered in this application, I proceeded to hear the matter without that affidavit.

4. The substantive proceedings were commenced by statement of claim on 18 February 2020. Mr Elisha relied upon that document, some written submissions and an affidavit sworn by him on 27 July 2020 annexing a number of documents.

5. The statement of claim is handwritten and does not disclose any cause of action. Rather, what it does is set out a chronology of complaints made by Mr Elisha against the Department. Those complaints can be summarised as follows.

6. First, on 17 August 2005 Mr Elisha applied for priority housing and was denied it. At that stage, he was living with his three children in a one bedroom unit and it was crowded. A decision was made that he was not eligible for priority housing assistance.

7. Secondly, it is pleaded that between 18 and 28 August 2009 he was refused temporary accommodation by the then Department.

8. He also pleads that on 17 January 2011 a letter was sent in relation to Miranda Real Estate to the effect that Mr Elisha was in arrears and had declined to pay it. The explanation then provided was that Mr Elisha had lost his wallet.

9. It is then pleaded that between 4 and 8 July 2009 he made another application for priority housing assistance which was declined. This was despite medical reports.

10. It is next pleaded that on 4 November 2010 his private lease was terminated.

11. It is next pleaded that on 16 November 2009 he changed his preference for housing location and was still unable to obtain housing.

12. It is next pleaded that on 19 October 2010 he lodged a complaint against the Department with the Australian Human Rights Commission, and on 26 June 2015 his psychologist sent a number of letters to the Department describing his need for priority social housing.

13. On 16 October 2015, an employee of the Department, Karen Robinson, made a false statement in an internal memo.

14. Those are the pleadings as provided by Mr Elisha.

15. In his affidavit in support he has annexed a number of documents. They reveal the following. A letter was sent to him from the Department under his previous name of Jack Anthony dated 17 August 2005 which advised him that his application for priority housing had been declined. Reasons were provided. The reasons included that Mr Elisha had not substantiated that his current residence was inappropriate.

16. A letter was sent to him by the Fairfield office of the Department dated 19 January 2010 which indicated that he had not established an inability to resolve his housing need in the private rental market, and reasons were provided for that decision on 17 November 2009. At that time he was going to be evicted because he was in arrears in rent. The reasons disclose that the Department was not satisfied with the reasons given by him for the rental arrears. In addition, reference was made to Mr Elisha's previous interactions with the department. It noted that he had been given temporary accommodation for 28 days previously and he continued to stay in that accommodation, paying for it himself thereafter. He had been assisted by the Department to obtain transitional housing accommodation with community housing and that, perhaps, if he was able to continue that period of stable accommodation he would be able to build a rental history that would assist him in re-joining private sector rental. In those reasons, it was noted that Mr Elisha has been diagnosed with severe anxiety and clinical depression and there were medical reports to support that.

17. Ultimately, those reasons concluded by stating the following:

“Housing New South Wales policy on affordability states that clients can contribute up to 50 percent of the weekly house-holding income plus a 100 percent of eligible rent assistance for suitable private sector accommodation.

On this basis Mr Elisha's affordability level has been assessed at approximately $316 a week and that suitable properties are available in a number of western Sydney areas. It not concluded that it was not considered that he had established that he was able to resolve his housing needs in the private rental market.”

18. Correspondence is also provided between the Department and the Human Rights Commission, after Mr Elisha complained of discrimination. The letter from the Department provides further details as to the reason it had not provided him with accommodation and stated that it had not discriminated against him as he alleges.

19. Following that correspondence, there is also correspondence dated 21 November 2019, stating that he would be eligible for a five year lease. The copy that is before the Court in relation to that document has a handwritten note by Mr Elisha that notes, "[t]hat never happened."

20. There are then a number of reports by a Mr Camacho, who is a psychologist who has been treating Mr Elisha, noting that he was concerned for the family’s welfare and asking the Department to consider his application.

21. There are no more documents then for a period of five years. Then, what is provided is some letters to Housing New South Wales, again by Mr Camacho, complaining that Mr Elisha’s accommodation is unsuitable. In one of those letters, Mr Camacho states that he had spoken to Karen Robinson, an employee within the Department. She told him that Mr Elisha is a difficult client and that she did not accept he was sick at that time. Other letters are also provided of a medical nature.

22. Finally, there is document noting that he also corresponded with the Consumer Trader and Tenancy Tribunal about a hearing, but there is no evidence whether that hearing was ever conducted.

23. That is the evidence relied upon by Mr Elisha in this application.

Submissions

24. Mr Elisha provided written submissions and expanded on them in some detail today. When I asked him to explain the delay in bringing these proceedings, he explained that he had come to Australia from Iraq in 1990 and that all of his siblings owned property and pay tax. He emphasised that he did not want the Court to think that he was a "bludger". It was not he who applied to be on a disability pension, rather it was suggested by Centrelink that he do so.

25. He submitted that he feels that he has been treated unfairly by the Department. He has gone to his local MP and the Minister for Housing, but they have not been able to assist.

26. When I asked him why he did not bring these proceedings in 2005 and 2009, Mr Elisha was not able to answer that, save as to say that he suffers from anxiety and depression. He submitted that he has been mistreated and that he had to get the Human Rights Commission involved. He explained that, although the 2009 letter says he was eligible for a long lease, he never was granted one by the Department.

27. Mr Elisha submitted that housing is a human right, and he feels that different rules were applied for him rather than other people. He accepted that he received transitional housing at one stage, but complained that he had never been given priority housing on a permanent basis.

28. He described how difficult it was to live in a one bedroom unit with three young children and that when he asked for help, he was declined. He noted that there is the Department internal guideline that it is not suitable to have an adult and three children in a one bedroom unit, yet that is what the Department forced him to do in 2005.

29. The nub of his application is that he suffers from mental health conditions, that at the relevant times, he had young children and he cannot understand why he was not given priority housing on those occasions.

30. I explained to Mr Elisha during his submissions that the complaint brought against him today is that his statement of claim does not disclose any cause of action. I also indicated to him that it was difficult for me to identify a cause of action either. He explained that he is not a lawyer and does not understand issues such as that. I indicated that I understood that, but he needed to be in a position to explain the basis upon which he brings these proceedings against the Department. On a number of occasions when I directed his submissions in that way, he responded by repeating what is already contained in his written material to the affect that he feels he has been treated unfairly by the Department of Housing since 2005.

Consideration

31. The principles in relation to summary dismissal of proceedings are well settled. Before a court would dismiss proceedings summarily, it must be satisfied that the proceedings are so obviously untenable that it cannot possibly succeed, manifestly groundless, or so manifestly faulty, that it does not admit of argument; (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 128, 129). In Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 91, Dixon J observed that before summary intervention can be justified the case must be a very clear one and there must be no real question of fact or law to be determined.

32. In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal (Macfarlan JA with whom Beazley P and Ward JA agreed) observed at [3]:

“The High Court decision in Spencer v The Commonwealth (2010) 241 CLR 118 [2010] HCA 28; was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application:

(a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).

(b) The critical question can be expressed as whether there is more than a ‘fanciful’ prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid).

(c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24]).”

33. With these principles in mind, I turn to consider the application by the Department that these proceedings should be summarily dismissed.

34. There are a number of difficulties with the claim brought by Mr Elisha.

35. First, his statement of claim clearly does not disclose any cause of action. It is simply a recitation of grievances he has with the Department arising from events going back to 2005.

36. Secondly, even if there was some cause of action that could be identified, the complaints seem to be well out of time.

37. Thirdly, there is no statutory appeal against the decision of what was then Department of Housing NSW to this Court. A person aggrieved by a decision of the Department has an appeal process available to him. Mr Elisha stated that he had appealed in 2005, but could not remember whether he had done so in 2009. There was no evidence put before the court on that issue.

38. Fourthly, Mr Elisha does not raise any argument that there is any error or fact of law involved in any of the decisions against him, nor is it suggested that the Department was negligent. On that basis, it is difficult to understand how his claim could be framed.

39. Fifthly, this Court does exercise supervisory jurisdiction of administrative decisions. It was conceded on the part of Mr Fester, who appeared for the Department today, that if a person exhausts their internal appeal process, then supervisory jurisdiction of this court may be invoked. He submitted that it is not a matter that would go to New South Wales Civil and Administrative Tribunal. I have not checked that legislation myself, but I will accept that from a representative of that Department who, no doubt, specialises in that area.

40. UCPR r 59.10 provides that the time limit for judicial review is three months. Time can be extended if the case is a reasonable one and there has been an adequate explanation for the delay. In the present matter, the time extension would be up to 15 years and, regrettably, Mr Elisha has not been able to provide any satisfactory explanation for the delay.

41. I have had regard to the medical reports before me that show he suffers from anxiety and depression. I have had regard to that material. The documents before me suggest that, to some extent, so has the Department. But that does not explain why, given that on-going problem, he was not able to act on this in 2005, 2009 or 2015, nor as to why he brings these proceedings in 2020.

42. It is well settled that, even if some form of jurisdictional error could be established, the granting of relief in the nature of the prerogative writs is discretionary. The discretionary factors to have regard to include whether an applicant has exhausted their other avenues of appeal or review. There is no evidence before me to suggest that Mr Elisha did that on each occasion. Further, in order to establish judicial review it has to be shown that there was either jurisdictional error or error of law on the face of the record in the primary decision. None has been identified nor am I able to glean any from the primary decisions that I have read from 2005 and 2009.

43. The only possible way that Mr Elisha could bring proceedings in this court, it seems to me, would be by way of a judicial review. Any such proceedings are well out of time. The discretionary factors that are relevant to an extension of time, both under UCPR r 59 and at Common Law in cases such Dyason v Butterworth [2015] NSWCA 52 are as follows: how long the delay is, whether there is a reasonable case, whether there is any prejudice caused by the delay to the parties and whether there is any matter of principle involved. Even having regard to those matters as to whether it would be appropriate to extend time, if Mr Elisha could identify some form of error, I am not satisfied that such leave would be granted.

44. Even having regard to the high test of being satisfied that the claim is so obviously untenable that it could not possibly succeed, on the material before me I have come to that conclusion.

45. There is no doubt that Mr Elisha is a man who suffers from anxiety and depression and that his grievances against the Department have grown over the years. The Court is sympathetic to his needs for housing, however nothing in the material before me establishes any basis for him to seek any remedy in the Supreme Court.

46. The Department did not seek costs.

ORDERS

47. Accordingly, I make the following orders:

1. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) the proceedings commenced by way of statement of claim on 18 February, 2020, are dismissed.

2. There is no order as to costs.

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Amendments

20 August 2020 - [32] citation correction

Decision last updated: 20 August 2020