Eastman v Commissioner for Social Housing
[2012] ACTSC 83
•May 30, 2012
DAVID HAROLD EASTMAN v COMMISSIONER FOR SOCIAL HOUSING [2012] ACTSC 83 (30 May 2012)
APPEAL – GENERAL PRINCIPLES – Appeal from Magistrates Court – Magistrate refused to hear challenge to costs sought to be recovered for removal and storage of contents of flat vacated by applicant – application for stay of notice requiring collection of goods and payment of removal and storage costs within specified time – respondent offered undertaking that goods would be released without payment of costs – applicant told court he would not remove goods unless costs waived, and would not pay costs even if appeal unsuccessful – whether goods were subject matter of appeal – whether applicant needed stay or other order to protect goods, or only to pressure respondent into waiving costs – court’s discretion not properly exercised to aid litigant in pressuring other party to abandon claim – application refused.
Uncollected Goods Act 1996 (ACT), s 27
Eastman v Commissioner for Social Housing [2010] ACTSC 71
Eastman v Commissioner for Social Housing [2011] ACTCA 12
Eastman v The Commissioner for Housing in the ACT [2008] ACTSC 1
No. SCA 33 of 2012
Judge: Penfold J
Supreme Court of the ACT
Date: 30 May 2012
IN THE SUPREME COURT OF THE )
) No. SCA 33 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DAVID HAROLD EASTMAN
Applicant
AND:COMMISSIONER FOR SOCIAL HOUSING
Respondent
ORDER
Judge: Penfold J
Date: 25 May 2012
Place: Canberra
THE COURT ORDERED THAT:
(a)The application be refused.
Background
David Eastman is serving a life sentence for the murder of Assistant Commissioner Colin Winchester of the Australian Federal Police. That sentence was imposed in 1995.
For much of the time since 1995, the ACT public housing authorities have been seeking to recover possession of the flat occupied by Mr Eastman for some years before his conviction and sentence. A challenge by Mr Eastman to a Notice to Vacate was rejected in the Residential Tenancies Tribunal in May 2007, by the Master of the Supreme Court in February 2008 (Eastman v The Commissioner for Housing in the ACT [2008] ACTSC 1), by a single judge of the Supreme Court in July 2010 (Eastman v Commissioner for Social Housing [2010] ACTSC 71), and by the Court of Appeal in July 2011 (Eastman v Commissioner for Social Housing [2011] ACTCA 12). In October 2011, Mr Eastman was refused special leave to appeal to the High Court from the Court of Appeal’s decision.
For some reason, the ACT Commissioner for Social Housing (CSH) took possession of Mr Eastman’s flat after the Court of Appeal’s decision but before the High Court had determined whether to give special leave for Mr Eastman to appeal to that court. CSH engaged removalists to pack Mr Eastman’s belongings (the goods), and put them into storage. The storage is currently costing CSH $100 per week.
Recently, Mr Eastman was notified by CSH that unless within the following 21 days he arranged for the goods to be collected, and for payment of removal and storage costs (the past costs) incurred by CSH (specified as $3,122), the goods would be disposed of under the Uncollected Goods Act 1996 (ACT).
Under s 27 of the Uncollected Goods Act, Mr Eastman challenged, in the Magistrates Court, the costs that CSH sought to recover. The challenge was generally based on Mr Eastman’s belief that CSH acted prematurely in removing his goods from his flat before the High Court had given its decision on his special leave application. Mr Eastman said that the Magistrate dismissed the challenge on the ground that s 27 did not give him jurisdiction to deal with a challenge of the kind brought by Mr Eastman. Mr Eastman then appealed to the Supreme Court. That appeal is not yet ready for hearing, and no date has been set for it to be heard
The application
In the meantime, Mr Eastman applied for an order prohibiting CSH from taking any disposal action in respect of the goods. That application, which came before me on 25 May 2012, was described as an application for a stay pending the hearing of Mr Eastman’s appeal. His argument was that if the disposal action were to go ahead as proposed by CSH, then the subject matter of the appeal would be irretrievably destroyed.
This claim was questionable, in that the subject matter of Mr Eastman’s appeal is not the goods that are at risk of being disposed of, but the past costs; that is, the costs that CSH seeks to recover in respect of its past dealings with those goods.
CSH’s undertaking
However, I did not need to determine that question directly, because, at the hearing of Mr Eastman’s application, CSH offered an undertaking that Mr Eastman would be allowed a further 14 days to remove the goods, and would be permitted to remove the goods without being required to pay the disputed costs in advance. Mr Eastman made it clear at the hearing that there was no practical obstacle to the removal of the goods that arose from his incarceration; he said that he had a friend who would be able to collect the goods and arrange storage for them if Mr Eastman asked him to do so.
At my suggestion, CSH agreed to extend the period of grace to 21 days, and I indicated that I was inclined to make an order in terms reflecting the undertaking offered.
Counsel said that CSH would not consider Mr Eastman’s application for waiver of the costs until the goods had been removed, because only then would the total costs that Mr Eastman sought to have waived be quantifiable.
In those circumstances – that is, where CSH was willing to allow 21 days for removal of the goods, without the disputed fee being paid in advance, and where Mr Eastman had indicated an ability to have the goods removed – I could see no reason for making an order of the kind sought by Mr Eastman, which would have left CSH obliged to continue to store Mr Eastman’s goods indefinitely with no guarantee of being able to recover the further costs at any point.
Mr Eastman’s refusal to remove the goods without waiver of costs
However, Mr Eastman then told the court that he had no intention of removing his goods, even if he were not required to pay the past costs before doing so, because he was not willing to remove his goods until CSH agreed to waive recovery of the past costs. He said that until he took possession of the goods, he could not be said to have failed to pay CSH anything and therefore could not be said to have incurred a debt, and went on to explain that even if his challenge to the imposition of the past costs was ultimately unsuccessful, he did not intend to pay those costs. His failure to pay a debt incurred as a result of removing his goods would in turn, he said, expose him to the risk of damage to his currently perfect credit rating; hence his application for an indefinite stay of any disposal of the goods.
Significance of location of goods to resolution of costs dispute
The location of Mr Eastman’s goods has no direct connection with the dispute over the past costs. If the goods were removed into Mr Eastman’s custody then that dispute could be resolved entirely on its own legal merits. Mr Eastman would not be under pressure arising from his desire to protect the goods, and CSH would not be under pressure arising from the mounting costs of continuing storage.
The only sense that I could make of Mr Eastman’s expressed determination not to collect the goods until the past costs were waived was that he hoped to put CSH into a position where it made a commercial decision to waive the past costs in order to induce Mr Eastman to remove the goods quickly, rather than to accrue ever-increasing storage costs throughout the duration of what could be a prolonged appeal process (being costs which might never be recovered even if CSH successfully defended Mr Eastman’s challenge to the imposition of the past costs).
This kind of negotiation, or perhaps oppression, may be a fact of life in some kinds of litigation. It is certainly a fact of life that litigants of modest means are sometimes induced to compromise their claims because of the risks of having to bear substantial costs if they are ultimately unsuccessful and possibly significant costs even if they win. The effect of costs pressures in litigation may sometimes be unfortunate in leading to resolutions that do not necessarily reflect the justice of the case.
This, however, was not a case in which a litigant was hoping that the pressure of legal costs would induce his opponent to abandon the fight. What Mr Eastman appeared to be seeking in this application was to enlist the active help of the court in creating a situation in which CSH could be put under increasing financial pressure, arising from accruing storage costs rather than from legal costs, to abandon its claim against him without the merits of that claim being determined. As a result of the undertaking offered by CSH, Mr Eastman did not need the court’s aid to protect the goods until CSH’s claim was determined; he only needed the court’s aid to put direct economic rather than legal pressure on CSH.
I could not see that supporting Mr Eastman in his attempt, in effect, to blackmail CSH would be a proper exercise of the court’s power, and accordingly I refused Mr Eastman’s application.
Other matters
Determination to ignore adverse outcome of appeal
I am not convinced that a person who informs the court that he will ignore the outcome of an appeal if it turns out to be adverse to him has even the usual claim to the benefit of the court’s discretion in preserving the subject matter of the appeal, but fortunately in this case I did not have to determine that issue.
Status of CSH undertaking
As to the status of the undertaking offered by CSH, although its availability was relevant to my preliminary conclusion that Mr Eastman’s interest in the goods could be protected without making the particular order that he sought, my final decision to dismiss his application without making an order in the terms of the CSH undertaking was based on Mr Eastman’s own announcement that he would not remove his goods unless CSH waived the charges. His position meant that the order I had proposed to make, and the undertaking proposed to be given, would achieve nothing except to delay CSH’s disposal of the goods for a further 21 days and increase its costs (which Mr Eastman had already indicated he would not pay) by a further $300.
Whether CSH might for any reason wish to offer the undertaking directly to Mr Eastman now that he has had an opportunity to reflect on the wisdom of the approach he took in court is a matter for CSH.
Order
For the reasons set out above, I refused Mr Eastman’s application.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Rik Sutherland
Date: 30 May 2012
Counsel for the applicant: The applicant appeared in person
Counsel for the respondent: Mr Bayliss
Solicitor for the respondent: ACT Government Solicitor
Date of hearing: 25 May 2012
Date of order: 25 May 2012
Date of reasons for judgment: 30 May 2012
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