Clarkson v Commissioner for Social Housing in the Act
[2012] ACTSC 167
•November 5, 2012
SIMON CLARKSON v COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
[2012] ACTSC 167 (5 November 2012)
PRACTICE AND PROCEDURE – appeal from ACAT – stay of termination of tenancy – tenant suffering from mental illness – intention to interfere with the quiet enjoyment of others – relevant matters Tribunal entitled to take into account
ACT Civil and Administrative Tribunal Act 1991 (ACT), s 86
Residential Tenancies Act 1997 (ACT), ss 8, 48, 51
No. SCA 70 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 5 November 2012
IN THE SUPREME COURT OF THE )
) No. SCA 70 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: SIMON CLARKSON
Applicant
AND:COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
Respondent
REASONS FOR DECISION
Judge: Burns J
Date: 5 November 2012
Place: Canberra
By an application dated 21 August 2012 the applicant, Simon Clarkson, sought leave to appeal against an order of the ACT Civil and Administrative Tribunal (the ACAT) made 20 August 2012 terminating his tenancy of certain premises owned by the respondent, and ordering that a warrant for eviction issue. An appeal from the ACAT in a case of this nature may be “on a question of law or fact” (s 86 (1) ACT Civil and Administrative Tribunal Act 1991 (ACT)), but can only be brought with the leave of the Court (s 86(3)). The applicant also sought a stay of the orders made by the ACAT.
The application for a stay came before me on 31 August this year, at which time Mr Arthur of counsel appeared for the applicant, and Mr Whybrow of counsel appeared for the respondent. After hearing counsel, I refused the application, and advised that I would publish my reasons at a later time. These are those reasons.
The applicant was a tenant of certain premises in Wanniassa in the ACT owned by the respondent. The premises were a unit, part of a complex of units. On 16 August 2008 the applicant signed a Residential Tenancies Agreement in respect of the premises. In December 2011, the respondent commenced proceedings in the ACAT seeking a warrant of eviction to remove the applicant from the premises.
On 17 April 2012, the ACAT, constituted by Senior Member Lennard, made a Termination and Possession Order terminating the Residential Tenancy Agreement and giving possession of the premises to the respondent at 3:00pm on 17 April 2012. On 17 April 2012, the applicant appealed from that decision. Orders were made by General President Crebbin staying the orders of Senior Member Lennard pending the hearing of the appeal. On 24 April this year, General President Crebbin made an Emergency Guardianship Order appointing the Public Advocate as guardian of the applicant. Thereafter, the Public Advocate has conducted proceedings on behalf of the applicant. A more extensive Guardianship Order was made on 22 May 2012, confirming the appointment of the Public Advocate as guardian of the applicant.
The applicant’s appeal was heard in the ACAT by Appeal President Stefaniak on 20 July and 20 August this year. On 20 August, Appeal President Stefaniak made orders terminating the tenancy at 9:00am on 21 August 2012, with a warrant of eviction to issue. It is from this decision the applicant seeks leave to appeal.
On the hearing of the application for stay of the orders of Appeal President Stefaniak. Mr Arthur abandoned the grounds of appeal set out in the notice of appeal as originally filed, and instead advised that the applicant would seek to proceed on the following grounds:
1.Whether, having found that the tenant was suffering from a mental illness which causes him to act so as to interfere with the quiet enjoyment of occupiers of nearby premises, it was open to the Tribunal for the purpose of making a termination and possession order under Section 51 Residential Tenancies Act to be satisfied that the interference is intentionally or recklessly caused by the tenant?
2.Whether, having found that the tenant was suffering from a mental illness as a result of which he was likely to carry out electrical wiring work which may lead to the risk of fire, it was open to the Tribunal for the purpose of making a termination and possession order under Section 51 Residential Tenancies Act to be satisfied that any resulting damage is intentionally or recklessly caused by the tenant?
3.Whether the exercise of the Tribunal’s discretion under Section 48(2) Residential Tenancies Act 1997 miscarried in that the Tribunal failed to consider relevant matters being that
a.The breaches found last occurred in December 2011 and while the tenant was untreated for his mental condition
b.Treatment commenced in January 2012
c.No breach had occurred for nine months and since treatment commenced
d.Treatment was to continue under statutory supervision
It is convenient at this point to briefly refer to the findings of fact made by the Appeals President, and to consider the terms of the Residential Tenancy Agreement and relevant legislation.
In the course of his reasons the Appeals President made the following findings:
a)the applicant suffers from a mental illness, which has afflicted him for many years. The illness has been diagnosed as schizophrenia;
b)the applicant suffers from delusions, particularly about his neighbours in the residential complex in which he was living at Wanniassa;
c)in December 2011 the applicant wrote and distributed in the residential complex and the surrounding neighbourhood two pamphlets;
d)one of those pamphlets referred by first name to a fellow tenant in the residential complex as “a paedophile” and accused her of gross sexual abuse of her nine month old child;
e)the second pamphlet referred to another tenant by his full name (Mr C) and accuses him of paedophilia and other gross sexual deviancy;
f)that the allegations made by the application in these pamphlets are false, but that the applicant’s delusions are such that he believes them to be true;
g)that the applicant punched Mr C “at some stage”;
h)that Mr C’s 18 year old son has been reluctant to visit him because of allegations made by the applicant that Mr C has engaged in anal intercourse with his son;
i)that the applicant recorded and played so as to be heard by other residents a recording that implied that Mr C was a homosexual, and had been making unwanted advances to the applicant;
j)that the applicant had often referred to a third resident as “a bitch”, “a whore” and “a slut”;
k)that on the day of the ACAT hearing the applicant made offensive gestures towards Mr C;
l)that the applicant had installed electrical cabling and had undertaken electrical work within his unit that was unsafe, and potentially a danger to the applicant and others.
The Residential Tenancy Agreement contained the standard residential tenancy terms set out in Schedule 1 to the Residential Tenancies Act 1997: see s 8 of that Act. Those terms include a prohibition on the applicant interfering with the quiet enjoyment of occupiers of nearby premises. Breach of this condition may permit the lessor to set in train a process of termination of the Residential Tenancy Agreement: see clause 93.
This was not the course adopted by the respondent. The respondent sought a termination and possession order effective immediately under s 51 of the Residential Tenancies Act:
51 Damage, injury or intention to damage or injure
On application by a lessor, the ACAT may make a termination and possession order effective immediately if satisfied that the tenant has intentionally or recklessly caused or allowed, or is likely to cause or allow –
(a)serious damage to the premises or to other property of the lessor; or
(b)if the lessor is an individual – injury to the lessor or member of the lessor’s family; or
(c)if the lessor is a corporation – injury to a representative of the corporation or a member of a representative’s family; or
(d)serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises.
11. It is indisputable that the actions of the applicant as set out in paragraph 8 of these reasons constituted an intentional and serious inference with the rights of other tenants of the units complex to quiet enjoyment of their premises. The fact that the applicant suffered delusions, such that he believed that they had acted unlawfully, is beside the point. His intention in doing what he did was to interfere with their quiet enjoyment of their premises.
12. The state of mind of the applicant at the time he did those acts complained of by the respondent is a question of fact. There was no evidence to suggest that the applicant’s mental illness was such as to preclude him from having the intention required by s 51, or that he did not understand the nature and quality of his actions. Such evidence as there was suggested strongly to the contrary.
13. Once it is established that a ground exists to terminate the lease under s 51, that would be sufficient to justify the making of an order of termination and possession effective immediately. As such the applicant’s prospects of success on proposed ground 1 of the appeal are poor.
14. In the light of this conclusion, it is unnecessary to consider the applicant’s prospects of success on proposed ground 2.
15. The applicant’s proposed ground 3 of appeal is based on the proposition that s 48 of the Residential Tenancies Act applies to the present circumstances. Assuming, for present purposes, that to be the case, I was not satisfied on the evidence that the applicant had an arguable case that the Appeals President discretion was not entitled to take into account, in the exercise of any discretion, that despite now being treated for his mental illness, the applicant continued to believe the allegations he had made about the other tenants in the units complex were true, and had little insight into his illness. In addition, there was evidence of ongoing harassment directed towards Mr C by the applicant.
16. For these reasons I considered that the applicant’s prospects of success on the appeal were not sufficiently strong to warrant a stay of the ACAT’s orders.
17. I will refer the matter back to the Registrar so that she may determine whether the applicant intends pursuing his application for leave to appeal.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate: James Middleton
Date: 5 November 2012
Counsel for the appellant: Mr Arthur
Solicitor for the appellant: Welfare Rights and Legal Centre
Counsel for the respondent: Mr Whybrow
Solicitor for the respondent: ACT Government Solicitor
Date of hearing: 31 August 2012
Date of judgment: 5 November 2012
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