Commissioner for Housing v Ganas - [2003] ACTSC 34

COMMISSIONER FOR HOUSING v BILL GANAS [2003] ACTSC 34 (16 May 2003)

APPEAL – Administrative Appeals Tribunal – nature of appeal.
LEASES AND TENANCIES – public housing program – provision for rehousing on the ground that existing accommodation is no longer suitable for “serious medical or other reasons” – phrase not to be considered ejusdem generis – meaning of phrase “serious . . . . other reasons” – any question as to whether facts fall within that description is one of fact – no ground for invoking more general appellate jurisdiction to challenge findings of fact – error in finding that priority should be granted from date of appellant’s decision rather than date of registration.

Housing Assistance Act 1987 (ACT)
Administrative Appeals Tribunal Act 1989 (ACT), s 46
Supreme Court Act 1933 (ACT), s 20
Magistrates Court Act 1930 (ACT), subs 207(1)
Tenancy Tribunal Act1994 (ACT), s 58
Australian Capital Territory (Self-Government) Act1988 (Cth), ss 28, 48A
ACT Supreme Court (Transfer) Act 1992 (Cth)

Kelly v Apps [2000] FCA 687
FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82 (6 October 2000)
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 24 ALR 513

FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58

De Domenico v Marshall [2001] ACTSC 52
Rose v Snape [2000] ACTSC 115
Harrison v Commissioner for Housing [2003] ACTSC 22
Australian Gaslight Co v Valuer General (1940) 40 SR (NSW) 126
Hope v Bathurst City Council (1980) 144 CLR 1
Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491
Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6
D C Pearce and R S Geddes, Statutory Interpretation in Australia, 4th ed Butterworths, Sydney 1996

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

No SCA 80 of 2002

Judge: Crispin J
Supreme Court of the ACT
Date: 16 May 2003

IN THE SUPREME COURT OF THE     )
  )          No. SCA 80 of 2002
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:COMMISSIONER FOR HOUSING
Appellant

AND:BILL GANAS
Respondent

ORDER

Judge:  Crispin J
Date:  16 May 2003
Place:  Canberra

THE COURT ORDERS THAT:

the appeal be upheld; and
the decision of the Tribunal be varied by deleting the date 20 December 2001 and, in lieu thereof, inserting the date 12 December 2001.

This is an appeal against a decision of the Administrative Appeals Tribunal upholding an appeal from a decision of the respondent rejecting an application for early transfer from the accommodation which he then occupied to a three bedroom house or flat in another location.

The Tribunal noted that in this Territory public housing assistance is provided pursuant to the Public Rental Housing Assistance Program (“the Program”) made under the Housing Assistance Act 1987 (ACT) (“the Act”) to give effect to the housing agreement between the ACT and the Commonwealth. The Program was varied with…

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: [2003] ACTSC 34
Decision Date: 16 May 2003

CaseChat Overview and Summary

The matter before the court was an appeal by the Commissioner for Housing against a decision of the Administrative Appeals Tribunal (AAT). The dispute centred around the rehousing of a tenant under the public housing program, specifically whether the tenant was entitled to priority rehousing on the grounds that their existing accommodation was no longer suitable due to serious medical or other reasons. The Commissioner argued that the AAT had erred in its interpretation of the phrase "serious medical or other reasons" and in the calculation of the priority date for rehousing. The court was required to determine the correct interpretation of the phrase and whether the AAT's findings on the priority date were correct.

The court found that the phrase "serious medical or other reasons" should not be interpreted narrowly, and that any determination of whether a tenant's circumstances fell within this description was a matter of fact. The court held that there was no basis for the Commissioner to challenge the AAT's findings of fact, and that the more general appellate jurisdiction could not be invoked to do so. However, the court did find an error in the AAT's calculation of the priority date, determining that it should be the date of the Commissioner's decision rather than the date of registration.

The court upheld the appeal and varied the decision of the AAT by correcting the priority date to 12 December 2001, rather than 20 December 2001. The court did not disturb the AAT's findings on the interpretation of the phrase "serious medical or other reasons" or its decision to grant priority rehousing to the tenant. The final orders of the court were that the appeal be upheld and the decision of the AAT be varied to reflect the correct priority date.

Orders

Orders of the court

the appeal be upheld; and

the decision of the Tribunal be varied by deleting the date 20 December 2001 and, in lieu thereof, inserting the date 12 December 2001.

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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