Clarkson v St Vincent De Paul Samaritan Services - [2016] ACTSC 235

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Clarkson v St Vincent De Paul Samaritan Services
Citation:	[2016] ACTSC 235
Hearing Date:	3 August 2016
DecisionDate:	3 August 2016
Before:	Mossop AsJ
Decision:	The application is dismissed.
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal from decision of ACT Administrative Appeal Tribunal – Where original tribunal decision involved a denial of procedural fairness – Failure to give reasons – desirability of informing parties of entitlement to obtain reasons – Existence of internal appeal within ACAT provided opportunity to remedy any denial of procedural fairness – Lack of evidence before the Court as to what happened at the hearing of the internal appeal – Onus on appellant to demonstrate case for appeal – No question of fact or law identified – Application dismissed
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 7, 23, 60, 62, 82, 86 Residential Tenancies Act 1997 (ACT), s 125
Cases Cited:	Eastman v Commissioner for Social Housing (2011) 252 FLR 278 O’Donnell v Environment Protection Authority (2012) 268 FLR 48
Parties:	Simon Jon Clarkson (Appellant) Samaritan Services St Vincent De Paul (Respondent)
Representation:	Counsel Self-represented (Appellant) Mr J Harris (Respondent)
Solicitors Self-represented (Appellant) O’Connor Harris (Respondent)
File Number:	SCA 102 of 2015
Decision under appeal:	Tribunal: Australian Capital Territory Administrative Appeals Tribunal Before: Appeal President Stefaniak Date of Decision: 2 October 2015 Case Title: Clarkson v St Vincent De Paul Society Samaritan Services Court File Number: AA 25 of 2015

MOSSOP AsJ:

The application

This is an application for leave to appeal from a decision of the appeal tribunal of the ACT Civil and Administrative Tribunal on 2 October 2015. That in turn was an appeal from a decision of the tribunal made on 3 June 2015.

The requirement for leave

Section 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) provides:

86 Appeals to Supreme Court
(1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from—
(a) a decision of the appeal tribunal; or

...
(3) However, the appeal may be brought only with the Supreme Court’s leave.

Two points should be noted. First, leave is required before an appeal may be brought. Second, any such appeal is an appeal from the appeal tribunal rather than the tribunal at first instance.

Procedural history

On 3 June 2015 there was a hearing before a senior member of the tribunal (the senior member). The transcript of that hearing runs over 61 pages. The order that appears to have been announced by the senior member was that “the occupancy agreement is terminated immediately.” The tribunal also noted the undertaking by the respondent to house the applicant at Samaritan House subject to his conduct.

On 2 October 2015 the appeal President ordered: “The appeal is dismissed.”

Draft notice of appeal

A draft notice of appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACTSC 235
Decision Date: 3 August 2016

CaseChat Overview and Summary

Clarkson sought leave to appeal a decision of the ACT Administrative Appeal Tribunal, which had dismissed his challenge to a decision by St Vincent De Paul Samaritan Services. Clarkson had applied to the Tribunal for internal review of the decision, which was also dismissed. The primary dispute was whether the tribunal's denial of procedural fairness during the internal review process warranted an appeal to a higher court.

The court considered whether there was a question of law or fact that warranted an appeal. Clarkson argued that the tribunal had failed to provide reasons for its decision during the internal review, which constituted a denial of procedural fairness. The court noted that while the tribunal's failure to give reasons was problematic, the existence of an internal appeal process within the Administrative Appeals Tribunal (ACAT) provided an opportunity for Clarkson to remedy any such denial of procedural fairness. However, there was insufficient evidence before the court regarding what had transpired during the internal appeal hearing to establish that a substantial miscarriage of justice had occurred.

The court found that the onus was on Clarkson to demonstrate a case for appeal, and no such question of fact or law was identified. The application for leave to appeal was dismissed. The court emphasised the importance of providing reasons for decisions and highlighted the need for parties to be informed of their entitlement to obtain reasons, but found that in this case, the internal appeal process had been available and no substantial miscarriage of justice was demonstrated. Consequently, the application was dismissed, and no appeal was permitted.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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