Harris v Commissioner for Social Housing - [2013] ACTSC 186

DAVID LEONARD HARRIS v COMMISSIONER FOR SOCIAL HOUSING
GREGORY PHILLIP TOWNEY-KILBY v COMISSIONER FOR SOCIAL HOUSING
JAMES SULLIVAN v COMMISSIONER FOR SOCIAL HOUSING

[2013] ACTSC 186 (9 September 2013)

NEGLIGENCE – personal injury – claim by tenants against landlord for injury resulting from disruptive behaviour of neighbouring tenant of the same landlord – whether duty of care and scope of any duty – relationship between common law and Civil Law (Wrongs) Act 2002 – liability of a public housing authority – consideration of UK authorities – no duty or breach of any duty established

CONTRACT – breach of contract – claim by tenants against landlord for personal injury – claimed breach of tenancy agreement provision requiring quite enjoyment of premises – breach not made out

Australian Capital Territory (Self-Government) Act (Cth) s 48A
Civil Law (Wrongs) Act 2002 (ACT) ss 32, 34, 35, 42, 43, 44, 108, 109, 110, 112, 168
Civil Liability Act 2002 (NSW) s 42
Housing Assistance Act 2007 (ACT) ss 6, 7, 9, 11 37
Housing Assistance Act 1987 (ACT) s 11
Human Rights Act 2002 (ACT) s 12
Residential Tenancies Act 1997 (ACT) ss 47 – 51, 72, 115, 115A, 115B

Explanatory Statement for the Housing Assistance Bill 2006 (ACT)
Explanatory Statement for the Housing Assistance Ordinance 1987 (ACT)

Explanatory Statement for the Civil Law (Wrongs) Bill 2002 (ACT)
Explanatory Statement for the Civil Law (Wrongs) Amendment Bill 2003 (ACT)

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Aussie Traveller v Marklea Pty Ltd [1998] 1 Qd R 1
Caparo Industries Plc v Dickman [1990] 2 AC 605
Department of Housing v Consumer, Trader and Tenancy Tribunal and Anor [2003] NSWSC 150
Devenport v Commissioner for Housing in the ACT and Residential Tenancies Tribunal (2007) 210 FLR 325
Eliezer v Residential Tribunal (2001) 53 NSWLR 657
Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Lyons v Commissioner for Housing [2004] ACTSC 126

Haig v Chesney [1925] SASR 82

Hauser v Commissioner for Social Housing [2013] ACTSC 104

Harris v James (1876) 35 LT 240
Hussain v Lancaster City Council [2000] Q.B. 1
Mitchell v Glasgow City Council [2009] 1 AC 874
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Mowan v Wandsworth London Borough Council (2001) 33 HLR 56
O’Leary v Islington London Borough Council (1983) 9 HLR 81
Peden v Bortolazzo [2006] 2 Qd R 574
Pyrenees Shire Council v Day (1998) 192 CLR 330
R v Shorrock [1994] QB 279
Smith v Scott [1973] Ch. 314
Sullivan v Moody (2001) 207 CLR 562
Australian Safeway Stores v Zaluzna [(1987) 162 CLR 479

No. SC 611 of 2009, SC 612 of 2009, SC 364 of 2010

Judge: Master Mossop
Supreme Court of the ACT

Date: 9 September 2013

IN THE SUPREME COURT OF THE )
) No. SC 611 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:DAVID LEONARD HARRIS
Plaintiff

AND:COMMISSIONER FOR SOCIAL HOUSING
Defendant

ORDER

Judge:  Master Mossop
Date:  9 September 2013
Place:  Canberra

THE COURT ORDERS THAT:

There be judgment for the defendant.

Any application for costs be made within 14 days.

IN THE SUPREME COURT OF THE )

) No. SC 612 of 2009

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:GREGORY PHILLIP TOWNEY-KILBY
Plaintiff

AND:COMMISSIONER FOR SOCIAL HOUSING
Defendant

ORDER

Judge:  Master Mossop
Date:  9 September 2013
Place:  Canberra

THE COURT ORDERS THAT:

There be judgment for the defendant.

Any application for costs be made within 14 days.

IN THE SUPREME COURT OF THE )

) No. SC 364 of 2010

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:JAMES SULLIVAN
Plaintiff

AND:COMMISSIONER FOR SOCIAL HOUSING
Defendant

ORDER

Judge:  Master Mossop
Date:  9 September 2013
Place:  Canberra

THE COURT ORDERS THAT:

There be judgment for the defendant.

Any application for costs be made within 14 days.

Introduction

Each of the three plaintiffs resided in public housing at 18 Howe Crescent, Ainslie. Each plaintiff had a residential tenancy agreement with the defendant, the Commissioner for Social Housing, which was governed by the Residential Tenancies Act 1997. The plaintiffs say that during their tenancies another tenant, who I will refer to as “John”, behaved in a loud, violent and threatening manner and, on occasions, threw rubbish in the common areas of the block of units in which the plaintiffs lived. The plaintiffs say that the defendant was aware of this behaviour, pointing to evidence that there were many complaints made to the defendant and visits by representatives of the defendant to the premises. The plaintiffs bring a claim in negligence against the defendant as well as alleging a breach of the terms of each of their residential tenancy agreements.

The plaintiffs’ claims are brought in three separate proceedings. Those proceedings were heard together and, with some minor exceptions, the evidence in each case was evidence in the others.

The defendant

The defendant, the Commissioner for Social Housing, is a corporation established by s 9 of the Housing Assistance Act2007. As at 2008, s 9(3) of the Act provided that “[t]he chief executive is the housing commissioner.” As at that date, the “chief executive” was defined as the chief executive of the administrative unit responsible for the administration of the Housing Assistance Act 2007: see Legislation Act 2001 s 163. The position is now changed in that what was then referred to as the chief executive is now referred to as the director-general. In the evidence in this case and, in particular, the documentary evidence to which I will refer in these reasons, those administering the public housing programs under the Housing Assistance Act are sometimes referred to as working within “Housing ACT” and sometimes the Department of Housing and Community Services. In administering programs for the provision of public rental housing, I have proceeded on the basis that public servants working within “Housing ACT” or the Department of Housing and Community Services were undertaking activities for which the Commissioner is ultimately responsible and have not needed to place any significance on the different titles given to the administrative units for which they worked.

The property

Fronting onto Howe Crescent in Ainslie is a part of the public housing complex known as the Ainslie Flats. The three plaintiffs and John were, during the relevant period, resident in a part of that complex. The part of the complex in which the four men resided was accessed from a common entrance. There were two flats downstairs and two flats upstairs. The upstairs flats were accessed by a staircase in the central common area. The downstairs flats had entrances to the left and right of the front entrance to the common area. The upstairs flats had entrances to the left and the right of the top of the staircase. Mr Towney-Kilby resided in unit 1 which was on the ground floor to the right of the entrance to the common area. Mr Harris lived in unit 3 which was also on the ground floor and to the left of the entrance to the common area. Mr Sullivan lived in unit 4 which was on the first floor immediately above Mr Harris’ unit and John lived in unit 2 which was on the first floor immediately above Mr Towney-Kilby’s unit and opposite Mr Sullivan’s.

The plaintiffs

James Sullivan

Mr James Sullivan, the plaintiff in proceedings SC 364 of 2010, was the first of the plaintiffs to move in. He moved into his unit on 4 April 2006. He was 58 years old at the time of the hearing. His lease contained the standard terms from the Residential Tenancies Act as well as additional terms required by the Commissioner which incorporated certain rules relevant to flat, townhouse or aged persons units. During the period relevant to this case his teenage daughter lived with him in his flat. By the time of the hearing, he was suffering from lung cancer and his evidence was taken at the Canberra Hospital. His recollection of the details of events was not precise. He did, however, do his best to give truthful and accurate evidence. Mr Sullivan died at The Canberra Hospital on 25 August 2013.

David Harris

David Leonard Harris, the plaintiff in proceedings SC 611 of 2009, was 66 years old at the time of hearing. On 6 August 2007 Mr Harris made an application for “priority housing” with the Defendant. He was assisted in making that application by a case manager working for a program known as ASSIST. This was a program run by Centacare, an organisation associated with the Catholic Archdiocese of Canberra and Goulburn. The letter written by the ASSIST case manager provided:

David has resided at Ainslie Village for six years. David suffers from a mental illness and is on appropriate medications. David also suffers from Osteo-arthritis which is a degenerative condition that will become worse in time. This condition is very painful and David has attended the Pain Management Clinic to be placed on the most appropriate medication.

David is expressing a strong desire to live independently and would like a bed-sit in the Watson, Dickson, Hackett or Braddon area. David would benefit from being placed in a quiet complex on the ground floor. David is distressed by the noise and disruptive behaviour caused by other residents at Ainslie Village which is impacting on his physical and mental well-being.

A further letter in support of his application was provided by his general practitioner Dr Christine Phillips. That letter, dated 16 August 2007, included the following:

David has managed a long term mental illness and chronic pain very effectively for some years, and has been very stable. However, there have been significant changes to his current housing and he has experienced an exacerbation of his illness, with an increase in his depression. This is a direct result of the changes of the criteria of residence receiving accommodation in Ainslie Village, resulting in an increase in threats of physical harm, and aggressive behaviour by residents towards David. There is an urgent need for him to have new accommodation in a safe environment, in the inner north so that he can have access to his pharmacy and medical support. Accommodation in Ainslie would be contra-indicated, however, as it is too close to Ainslie Village.
David is highly intelligent and has been a very stabilising presence at Ainslie Village. Current circumstances there mandate that for his own health he must obtain urgent accommodation elsewhere, and I support his request on compelling medical and psychological grounds.

On 20 August 2007 Mr Harris wrote to “the Director, the Department of Housing” in support of his application for priority housing. He referred to his current situation as being “unbearable” and having “an extremely detrimental effect on my physical and psychological well-being”. He referred, in particular, to the change in management and the new management’s lax attitude and failure to observe the “house rules”. He referred to the fact that the block in which he lived now had two chronic alcoholics whose behaviour was a constant source of conflict and upset. He referred to the noise rule being broken and harassment from other residents. He said “I can no longer continue to live under these circumstances, and respectfully request the earliest possible allocation of a more suitable environment in which to live.”

On 23 August 2007 an officer of the defendant assessed Mr Harris’ application and approved it for the Higher Needs Housing category under the relevant determination of the Commissioner. The assessment records:

The applicant is a current resident at Ainslie Village under a long-term lease. The applicant is medicated for a mental illness, and this treatment is seen as being undermined by an increase in antisocial behaviour at R block in which the applicant lives. The applicant no longer feels safe and this is undermining treatment for his mental health problem. The applicant cannot afford private rental accommodation as an alternative.

On 9 November 2007 the Commissioner offered Mr Harris unit 3 at 18 Howe Crescent Ainslie. On 14 November 2007 Mr Harris and the Commissioner entered a residential tenancy agreement which included the standard residential tenancy terms set out in the schedule to the Residential Tenancies Act 1997 as well as some additional terms required by the Commissioner which incorporated some rules applicable to flat, townhouses or aged persons units.

Although the evidence is not precise, I infer that it was on 14 November 2007 that Mr Harris moved into the property.

Mr Harris suffered, and continues to suffer, from a poor memory. He carefully kept a diary to remind him of what he needed to do each day and he also used it to record incidents at his residence involving John. He made those entries contemporaneously or shortly after the events in question and I accept that those entries were generally accurate. On significant issues the entries were corroborated by other documentary material or by the evidence of Mr Sullivan and Mr Kilby. In giving oral evidence Mr Harris did not seek to hide his poor memory of events and his reliance upon documentary material. I accepted that he was, within the limits of his poor memory, giving honest evidence.

Gregory Towney-Kilby

The plaintiff Gregory Towney-Kilby, who I will refer to, as he was referred to at the hearing, as Mr Kilby, made an application for public housing dated 19 October 2007. The application was supported by a letter from his doctor, Dr Sukumar, which said that Mr Kilby:

… SUFFERS FROM CHRONIC NEUROPATHIC PAIN IN HIS NECK AND HEAD AS A RESULT OF AMOTOR [sic] VEHICLE ACCIDENT. HE HAS BEEN HOMELESS FOR EIGHT MONTHS, LIVING IN HIS CAR. I STRONGLY SUPPORT HIS APPLICATION FOR SUITABLE ACCOMMODATION IN OAKES ESTATE.

The application was assessed on 19 October 2007 and he was approved for the Higher Needs Housing category under the relevant determination of the Commissioner. A tenancy agreement was signed between the Commissioner and Mr Kilby on 13 December 2007. It included the same combination of terms as did the agreements of the other two plaintiffs.

Mr Kilby’s oral evidence was not particularly impressive. He had a tendency to overstate his evidence. He became unnecessarily agitated in the witness box. While I have treated his evidence with considerable caution, the reliability of his evidence is not an issue of great significance because of the existence of contemporaneous records of what occurred between him and John and the defendant.

The other tenant in block 18

John became a resident of 18 Howe Crescent Ainslie as a consequence of an application made in July or August 2006 which was considered by the Commissioner in September 2006. Even prior to that time, in April 2006, ACT Corrective Services had communicated with the Commissioner advising that John’s accommodation was unsatisfactory because he was fearful for his safety and reported a number of stressful and violent encounters with other residents.

His application was supported by a letter from a case manager employed by Centacare. That letter recorded that he was 50 years old and had been a resident at “Minosa House” which provided short-term accommodation to homeless adult males. Prior to residing there he had resided at a property leased from the Havelock Housing Association Inc. While residing at the property he had been hospitalised on numerous occasions as a result of unprovoked aggressive attacks by a fellow tenant. The letter recorded that during his residency at Minosa House he had been assaulted by the same individual when he was attending appointments in the city. The letter records:

John suffers from a range of medical conditions including short term memory loss. John is also alcohol dependent. In order to manage these conditions it is imperative that John can is [sic] allocated safe, secure accommodation.

In summary, John is a mature aged and gentle male who is currently residing at MINOSA House. John has also chosen not to return to Havelock Housing, due to experiencing repeated assaults and ongoing harassment/or bullying from a fellow tenant, which resulted in John being admitted to hospital on numerous occasions. John felt he had no other option other than to terminate his tenancy, as his safety was at risk and to ensure his long-term health and mental/emotional well-being.

The request for “out of turn” housing was dealt with by three officers of the Commissioner between 25 and 29 September 2006. A recommendation from one officer was approved by his manager and by a person identified as a “director” at Housing ACT. The request for out of turn housing was refused and the effect of that was that John remained on the “High Needs Housing List”. The document records the following:

[John] suffers from epilepsy, gastritis and alcohol addiction, these conditions are worsened by stressful environments. ...
[John] had been approved High Needs Housing with effect from the 24 May 2006.
Letter dated 29 July 2006 from Jo Flynn, Minosa House, stating that as a result of the latest assault [John] has had 6 staples inserted into his skull, these attacks are greatly affecting his ability to cope. ...
Undated letter from Samaritan House indicating that [John]is a current resident at Samaritan House and that he would be required to leave after his three-week stay is completed.

Prior to making the recommendation that he not be provided with out of turn housing, the document records under the heading “Conclusion”:

[John] has been the victim of several physical assaults including an assault with a baseball bat. He is unable to reside in accommodation like Ainslie Village or Havelock House as the perpetrator has known associates and has re-visited Havelock House after the assaults and made threats towards [John].
[John’s] current medical issues and his substance abuse issues have been greatly affected in his previous accommodation.
I feel [John’s] application is appropriately categorised on the High Needs Housing List.

John entered into a tenancy agreement with the Commissioner on 27 February 2007. His lease contained the standard terms as well as additional terms required by the Commissioner which included rules relating to flats, townhouses and aged persons units.

Consistently with his history of chronic alcoholism, John had a criminal history which included a series of minor offences. As a result of a conviction in 2006 he was subject to a 15 month good behaviour order and was subject to supervision of ACT Corrective Services, particularly in relation to “a significant alcohol addiction problem”. After that he had convictions for minor theft and minor property damage. He was also bound over to keep the peace on two occasions as a result of breaches of the peace. He was dealt with without conviction and subject to a good behaviour order for consumption of liquor in a public place and had charges of minor theft, unlawful possession of stolen property and common assault dealt with pursuant to s 334(2)(a) of the Crimes Act. That section permits, in substance, charges to be dismissed if they are more appropriately dealt with as mental health issues.

However, because of the fact that he was a chronic alcoholic who was often intoxicated in public, his criminal history does not adequately reflect the extent of his interactions with the police. The police records which were in evidence disclose that on many occasions he came into contact with police because of his intoxication and on numerous occasions he was taken into police custody for his own protection because of his intoxicated state. A police report from February 2009 provides a useful summary of John’s interactions with police:

Since about early 2005, [John], the Defendant now before the Court, has been regularly in contact with members of ACT Policing within the Canberra City precinct. The Defendant is a well-known chronic alcoholic who socialises and loiters in the Canberra CBD area and surrounding flats and as a result, Police have spoken to the Defendant on numerous occasions for a variety of matters, including general anti-social behaviour or for engaging in inappropriate conduct in a public place because of his intoxicated state.

On most occasions when dealing with the Defendant, he is generally very friendly with police and attempts to engage police in conversation by telling jokes. The Defendant is best known to Police for telling officers a joke about “why did the jellybean go to school, because he wanted to be a smartie”. The Defendant invariably tells this joke when commencing conversation with people.

During most of the period relevant to the issues in this case John was subject to supervision by ACT Corrective Services. It is notable, for the purposes of the events described below, that a period of supervision to which he was subject as a consequence of a good behaviour order is recorded in the ACT Corrective Services case notes as expiring on 9 October 2008.

Chronology of events

As mentioned above, James Sullivan took up his lease of unit 4 in April 2006 and John took up the lease of unit 1 on 27 February 2007.

Heather Arch lived in the unit below John’s, unit 1, for a period up until 11 November 2007 when she moved to alternative accommodation. She was a retired nurse. Shortly after John moved in, she had cause to write to him on 17 March 2007, in very moderate and friendly terms, about noise from his unit. That letter recorded that she had received complaints from neighbours about the noise levels from his flat late at night until morning and that “[l]ast night’s noise did not stop until 0900 this morning”. The letter concluded: “[p]lease consider your neighbours John”. Ms Arch also sent a copy of the letter to the defendant.

In her oral evidence, she said that she sent the letter because he was having all night parties starting in the evening at about 9.30pm and going until the same time in the morning. She heard lots of loud music and noises consistent with people or furniture falling over. Subsequent to that she made other telephone complaints to the defendant about the disruption caused by John.

She said that when John was on a binge, which could last from a week up until three weeks, she rang the defendant every day. She said that when he was sober he was a very personable person, just “a nice bloke who happened to be a neighbour”. When he was drunk she observed that he would talk to himself and stand with his fists clenched and his upper body shaking. When that was the case she felt uncomfortable and kept away from him. She described having called the Commissioner about 50 times during the period between February 2007 and when she moved out on 11 November 2007. She had previously signed a statement saying that she had made several calls to the defendant and I find that she made a significant number of calls to the defendant but not the 50 she referred to in oral evidence. On about 10 September 2007 she noticed that there was a hole in the ceiling of her unit just above her bed. She shone a torch up into it and there seemed to be some reflecting light or something coming through it. She got the impression that there was something in the hole looking down at her, some sort of surveillance device which glinted when she shone a torch up there. She called the police but, although the police attended, their view was that no crime had been committed and they recommended that she call the defendant. She made a telephone complaint to the defendant and a home visit was undertaken the next day, 11 September 2007. This visit confirmed the existence of a hole in her bedroom ceiling which had, by this stage, been filled by Ms Arch with glue and paper to protect her privacy when she was sleeping and dressing. Understandably, Ms Arch was feeling very uncomfortable and felt that she had no privacy in her own home. The details of the incident were recorded the next day, 12 September 2007, in a file note by one of the defendant’s officers.

As a consequence of John moving in, Ms Arch made a request to transfer to different accommodation in about March or April 2007. In about September or October 2007 she was offered an alternative residence in Spence. She did not accept that offer because when she went to inspect the unit she was assaulted by somebody who threw part of a brick at her which knocked her glasses off her face. She subsequently accepted a second offer of alternative accommodation from the defendant which permitted her to move into a unit in Scullin which was in a complex of 18 units for persons over 65 years old.

As indicated above, Mr Harris signed his lease on 14 November 2007. Mr Kilby, who replaced Ms Arch, signed the lease for unit 1 on 13 December 2007.

In the early hours of Christmas Day 2007, John returned to the block of units and found himself locked out of the stairwell. He was intoxicated. He used a brick to break a glass panel either in the door to the unit complex or a glass panel immediately adjacent to it in order to get in. This was unnecessary as he could have gone around the back of the units and got in without a key. Either when outside the front door or after having gained entry he said abusive words to Mr Harris who remained in his unit, blaming Mr Harris for locking him out. Mr Harris was upset and intimidated by what had occurred.

When Mr Harris emerged from his unit the next day he observed that someone had smeared sausage meat on the wall of the common area down the stairs and left some on the step outside his unit. He initially thought it was dog faeces. He was upset by the incident.

On 26 December 2007 Mr Harris, Mr Sullivan and Mr Kilby signed a letter of complaint which was sent to the Commissioner. Mr Harris wrote the complaint and Mr Sullivan and Mr Kilby joined in signing it. It recorded:

We, the under signed residents of Ainslie Flats, 18 Howe Crescent, Ainslie wish to lodge a formal complaint against the resident of Flat 2, whose behaviour when he has been consuming alcohol is extremely anti-social, destructive and upsetting, and apparently this behaviour has caused problems, and has been the source of previous complaints to the Department. We are intimidated by him, and [indecipherable] threatened by him when he is inebriated, and wished to petition the Department for his relocation to another property. We don’t know whether previous complaints, specifically from the former resident of flat 1, resulted in any action, or formal warning, but urge the Department to take action on our behalf, as our safety and comfort are being compromised, roughly on a fortnightly basis, probably coinciding with his Centrelink payment, at the very least. We have determined that the individual in question was responsible for the broken window in the right front door of the flats, which occurred between 3 and 3:30 am on Christmas Day, accompanied by [indecipherable] threats and swearing, and the next day he threw raw sausages through the hall and down the stairwell, coming to rest in the foyer, where they remained until one of us cleaned them up. The writer, David Harris (myself) was assured by the Department that I would be allocated a flat in a quiet block, populated by residents over 45 years of age, who were all quiet, non-obtrusive people, as I suffer from a nervous condition, and require that sort of environment in order to lead a calm and peaceful existence, and given the situation as it now exists in this block this has turned out to be far from the reality I set out, and requested, in my application for Priority Housing Allocation. My nervous condition is being seriously affected, and a longer-term resident has assured me that the problem with the resident of flat 2 has been ongoing and long-term.
We are not complaining in a trivial or frivolous manner, we feel we have the right to live a settled, stable life here, and that condition is far from the reality of the situation as it now exists. We don’t want to have to resort to involving the Police, which we could easily resort to, given this man’s threatening behaviour, as we fear such an action would lead to reprisals against us, so we are appealing to you to take action to resolve this situation. Sincerely, and in good faith, [signed]

The end of the letter refers to an attached addendum. That addendum, which is dated 15 January 2008, records:

I would like to add that on 3/1, partly as a result of John’s unacceptable actions, I experienced an episode of deep depression and was admitted to the Psychiatric Ward at Calvary Hospital (on 5/1) where I remained until 11/1 until fit for discharge.
I was deeply affected by John’s behaviour, and I felt I had “jumped out of the frying pan into the fire”, as I left Ainslie Village and took this Unit specifically to get away from the sort of alcoholic/drug-related behaviour John engages in when inebriated (which from my observations and those of Greg in flat 1 and Jim in flat 4 is frequent.)
Apart from the preceding I am happy here, and have no wish to move elsewhere, so I would appreciate any interventions are Department is able to take to resolve this situation.
…
Please see Hospital Discharge form attached. Refer all to Pamela Hackman, who made aware of the situation personally.

This letter was received by the defendant on 25 January 2008. I am satisfied, having regard to the folio numbering in the defendant’s files that the hospital discharge form referred to in the addendum was received with the letter.

Mr Harris was cross-examined about the reference in the letter to being assured that the residents would be “over 45 years of age ... all quiet non-obtrusive people”. He conceded in cross-examination that this was what he assumed and expected but that he had not been told by anybody at ACT Housing that he would be housed with people without alcohol or mental health problems.

The hospital discharge form attached to the letter was a “Mental Health ACT Nursing Discharge Summary” which records, in relation to, Mr Harris:

Patient has a history of [bipolar affective disorder] this episode in a depressed phase. Along with his depression there were 2 issues associated with this admission is that the unit he lives in the above unit the occupier is noisy and abusive, the other he was told by his daughter that she does not want anything to do with him. He has since settled with no further thoughts of self harm.

Mr Harris had in fact attempted to commit suicide on 3 January 2008 having injected, on the evening of 31 December-1 January, a “street deal” of heroin. Mr Harris’ diary contains an entry on 1 January 2008: “John playing up”. On the 2 January 2008 Mr Harris’ diary has an entry: “John causing more trouble”. I accept that when such entries were made by Mr Harris, John had behaved in a manner that involved creating unreasonable noise sufficient to disturb the other residents in the block of units.

On 3 January 2008 Mr Harris took an overdose of drugs. A suicide note meticulously recorded what he had taken and indicated that he expected to die as a consequence of doing so. However he awoke the next day, vomited and called the ambulance. He was taken by ambulance to the Calvary Hospital at 8.45pm on 4 January 2008. The hospital records state:

Lives alone in Canberra. Estranged from his family for many years. Attended a family reunion just before Christmas in Brisbane. Met up with his father, two sons and a daughter. He states that the reunion went well. His daughter has subsequently rejected his attempts to maintain contact. He recently moved from Ainslie Village to a one bed room flat in Ainslie. He was very happy about this but has subsequently discovered that he has an abusive alcoholic living upstairs, who abused him on Christmas day.

Similarly, a history taken at the hospital recorded:

Christmas day co resident at Ainslie Flats smashed front window & smeared raw sausage at his home.
[Daughter] sent text stating she needed space & requesting he not call her.
Felt very upset. Took shot heroin in NYE after 7 yrs abstinence.

Mr Harris was discharged from the hospital on the afternoon of 11 January 2008. By this stage he had settled and had no further thoughts of self harm. He was followed up after his discharge by hospital staff as well as his GP and seen again later in January, March, June and October 2008.

Following receipt of the plaintiffs’ letter on 25 January 2008, on 31 January 2008, a Team Leader from the Complaints Management Unit of the Department of Housing and Community Services wrote to Mr Harris thanking him for his correspondence. It said “[y]our complaint has been passed to Anne Edwards, Manager of the Central Region to coordinate a response”. It gave him a complaint reference number (8350) and indicated that he could expect a response advising of the outcome of the investigation by 29 February 2008. It said that if he wanted information on the progress of his complaint or on the complaint handling policy he could contact the Complaint Management Unit on a telephone number which was set out.

As a consequence of complaint 8350, Pamela Hackman, a Housing Manager employed within ACT Housing, conducted a “Client Service Visit” at John’s property on 22 February 2008. She raised with him the matters raised in complaint 8350, namely, a sausage being thrown down the stairs on Christmas day and antisocial/destructive behaviour when under the influence of alcohol. John denied throwing the sausage down the stairs on Christmas day. He was reminded that any such behaviour would be a breach of his tenancy agreement and would not be acceptable. He insisted that he had not thrown a sausage down the stairs. In relation to the complaint of antisocial and destructive behaviour John agreed that he sometimes “had a drink of alcohol and that he may not be as sociable on occasions”. Ms Hackman explained his obligations to him and offered to put him in contact with some support groups that could assist him. He said he would think about the offer. He disclosed that he was illiterate. Ms Hackman said that he could call her and ask her about any ACT Housing letter and she would be happy to explain the contents of those letters to him. John thanked her for her offer and said that he would be mindful of his actions and just simply stay away from the other tenants of block 18 to avoid further conflict.

On 9 May 2008 Ms Hackman spoke to Mr Sullivan who said that there were no problems of antisocial behaviour or any other issue with John since Christmas Day 2007 and that he was very happy.

On 12 May 2008 an anonymous complaint was received by the defendant about fire alarms being set off by John. It was assigned a complaint number (9161). On the same day a complaint was received from Mr Kilby about John “continuously being noisy in his unit”. It was assigned a complaint number (9164). The complaint included a complaint that the mother and father staying with John went off somewhere and left small children with John while he was drunk. Mr Kilby stated that he feared that the baby could get hurt. Mr Kilby is recorded as stating that the tenant had been “an absolute nightmare ever since he moved into the unit”. I accept that these complaints about the conduct of John and his guests accurately record what was occurring at the property.

As a consequence of the complaints, Ms Hackman did a number of things. Because there was mention in the complaint of concern for the visiting children’s welfare, on 20 May 2008 she made a report to “Care and Protection”, the name commonly used to describe that part of the Department of Housing and Community Services dealing with child welfare issues. The next day, 21 May 2008, she sent a letter to John giving him a “Notice to Remedy” alleging breaches of various clauses of his lease signed on 27 February 2007. The letter recorded:

Housing ACT has received information indicating that loud noises are coming from your unit consisting of thumping and banging of doors. That the fire alarms in this Complex have intentionally been activated by yourself and further that children have been playing in the stairwell.

The notice gave him 14 days to rectify the breach.

She also sent him a letter concerning “undeclared residents living in the property” which was relevant to the amount of rental rebate to which he was entitled. He was requested to contact the Housing ACT office to provide the required documentation about these persons within 28 days of receipt of the letter.

On 27 May 2008 John attended an office of the defendant in response to receiving a notice to remedy and a letter requesting further documentation about his guests residing at the property. He had a meeting with Ms Hackman. The complaints that had been made were put to John and what occurred is recorded in a contemporaneous file note as follows:

[John] stated that he was looking after the children and that he tried to limit the sugar intake of the children in an attempt to keep them quieter. [John] admitted that the children had lit sparklers in the stairwell for entertainment.
[John] stated that he did try to keep noise levels down to a minimum while his guests were staying in his property but as there were more people staying in his property the noise levels from normal traffic were increased.
I explained to [John] that he had breached his tenancy agreement and had 14 days Notice from the date of the Notice To Remedy to rectify the situation.
[John] stated that he had already rectified the situation by organising temporary accommodation through his church for his guests.
[John] stated that he could not have had his guests stay in the property any longer as he finds it hard to have any person stay with him for a period of longer than two weeks.
I reminded [John] of his obligations under his tenancy agreement.
[John] stated that he would be mindful of any noise generated form [sic] his property.
[John] provided a Statutory declaration stating that his guests entered that property on Friday 2 May 2008 and left the property on 21 May 2008.

As a consequence of these actions, Ms Hackman wrote to each of Mr Sullivan, Mr Kilby and Mr Harris in the same terms addressing the complaint signed by all of them which had been given the number 8350. Those letters dated 10 June 2008 were as follows:

Thank you for your letter to Housing ACT Complaints Management Unit regarding your concerns about anti social behaviour from a Housing ACT tenant.
I would like to inform you that Housing ACT has taken your concerns very seriously and appropriate action has been taken to remedy your complaint.
As I am sure you understand, Housing ACT is bound by the Privacy Act, and therefore I am not able to disclose to you the specific details of the action I have and will be taking to address your concerns.
I would urge you to contact the police on 000 in the first instance if you feel intimidated or threatened by the behaviour of your neighbours.
I would like to thank you for raising these issues and if you have any further concerns, please call Housing ACT on [telephone number] so that we can investigate the matter further.

Several points can be made, at this stage, about complaint 8350.

(a) Between submitting it and the letter of 10 June 2008 the only direct correspondence in reply from the defendant was the letter of 31 January 2008.

(b) There is no evidence that Mr Harris took any particular steps to follow up the progress of his complaint or obtain information on the complaint handling policy as he was invited to do in the letter of 31 January 2008.

(c) Mr Sullivan was clearly aware of some action being taken by the defendant as a consequence of being visited on 9 May 2008 by Ms Hackman at which time he indicated that everything was going well and there had been no problems.

(d) Whilst many of the actions of the defendant were not disclosed as a consequence of the defendant’s concerns about the operation of the Privacy Act, the defendant did take substantial action in response to the complaints in January (8350) and May 2008 (9161 and 9164).

(e) The picture that was painted to the officers of the defendant by John about the situation was very different from that which was reported by the plaintiffs.

There were no further complaints about John made to the defendant in the period between June to October 2008 and Mr Harris’ diary does not record any disturbances.

Although the criminal history that was in evidence does not identify why this was the case, in the period November 2007 until October 2008 John was subject to supervision by ACT Corrective Services as a consequence of a good behaviour order. The case notes prepared during the course of supervision indicate that John reported to Corrective Services in February, March, April, May, June, August 2008. At those meetings he reported attending Alcoholics Anonymous meetings and being abstinent from alcohol since either September, October or November 2007. In September 2008 he reported consuming alcohol. On 7 October 2008 he failed to report for supervision. The case notes record that the good behaviour order to which he was subject expired on 9 October 2008.

Police records disclose that during the period November 2007 until October 2008 John was regularly found in a variety of public places around Canberra making a nuisance of himself whilst intoxicated. Those records disclose intoxicated interactions with police on 1 and 30 November 2007, 11 and 24 February, 9, 10 May, 7 July, 3, 4 September 2008.

It is therefore clear that John did not abstain from alcohol use in the manner that he reported to officers of Corrective Services. He was sophisticated enough in his dealings with Corrective Services officers to report what they wanted to hear. Notwithstanding his deceptive conduct, the supervision by Corrective Services may have placed some constraints upon his drinking behaviour. In the period after the expiry of the good behaviour order until February 2009 John’s alcohol abuse and, consequently, his disruptive behaviour, worsened.

The period between 13 and 17 October 2008 was a period during which John was a substantial source of disruption to his neighbours and had significant involvement with the police. Mr Harris’ diary records on 14, 15 and 16 October, “police to John”. On 17 October an entry records, “I rang to report a disturbance to police re man across Road and [John]”.

Mr Kilby made a complaint to the defendant late in the evening of 13 October 2008 (complaint 10505), saying there was loud music every night and the tenant was drunk every night. He claimed that John had a bowling ball that he dropped on the floor to make annoying sounds. He said that John yelled and screamed a lot so that Mr Kilby could not sleep. He also said that John threw rubbish and food scraps throughout the common stairwell on which he slipped and injured himself on exiting his front door. He said he banged his arm on the steel railing as he fell. He said he could not sleep and that was affecting his health. The person who took Mr Kilby’s call recorded that “Maintenance” was called to have the stairwell cleaned as it was a hazard to tenants.

In oral evidence, Mr Kilby described slipping on food in the stairwell when he was just outside the door of his unit investigating the “ruckus” coming from upstairs. I accept that he slipped on food and fell, banging his right elbow on the metal handrail next to the stairs, and twisting his ankle.

On 14 October 2008 at about 11am Mr Sullivan called to complain about John (complaint 10504) saying that he had given the tenant about 10 or 11 chances but he kept repeating the antisocial behaviour and the other tenants wanted it to stop. He said that at about 12.30am on 14 October, John came home drunk and was very loud. Mr Sullivan called the police who came and spoke with him. About 10 minutes after the police left the noise started again. Mr Sullivan approached John and asked him to quieten down in response to which he received verbal abuse and threats to the effect of “you’re dead”. Mr Sullivan was advised by the Complaints Management Unit to contact the police again. Mr Sullivan said that at about 4am he saw John throwing and tipping rubbish and food scraps around and down the stairwell. He complained of not getting sleep due to the noise from the tenant and said he “can not take much more”.

Police records establish that an anonymous person, who is likely to have been Mr Sullivan, did make a complaint in the early hours of 14 October about John’s conduct. The complaint, as recorded in police records, was that persons inside John’s unit had been “yelling and screaming and going off for last 30 min”. John was inside by himself and under the effect of cannabis. No other persons were present and there were no signs of any disturbance or damage.

At some time, although it is not possible to say when, Mr Sullivan had a conversation with Ms Hackman or one of the other housing managers where he was offered to move to another unit. He declined the offer saying that he did not want to move.

It is clear that during this period in October 2008, John was not just making a nuisance of himself at home. At around 3:30pm on 15 October 2008 police were called to the Belconnen bus interchange where John was in an intoxicated state behaving in a threatening, aggressive and agitated state. He became aggressive towards police and threatened to “kill us all”. He was placed in protective custody and taken to the city watchhouse. The next day, police were called to attend Lanyon Marketplace, a shopping centre in Conder. John was found there in an intoxicated state, swearing and yelling at shoppers. He became aggressive towards police, saying “I will fucking kill you”. He was taken into police custody.

On 16 October 2008 John had his television on loud, was banging doors and yelling out his door and windows. In the early hours of 17 October 2008 police were involved again when they were called at around two o’clock in the morning by Mr Sullivan. The complaint, as recorded in police records, was that John was “screaming and yelling from inside his unit. [The complainant] states that this has been going on for the past hour and is a regular occurrence”. Police attended and Mr Sullivan told them that John had his television turned up loud and was yelling at it. Police spoke to John who was heavily intoxicated but not making excess noise at the time and the television was turned off. He was advised to be more considerate of his neighbours and he agreed to keep the noise down. John started up again after they left and Mr Sullivan knocked on his door and exchanged words with him. Mr Sullivan went back to his unit and the noise from John continued so Mr Sullivan left the property to buy some cigarettes. When he returned he found the stairs covered with lettuce and vegetable scraps. Later that evening, John was seen by police on a number of occasions drinking in Civic. After being warned by police not to drink in a public place and told to go home he was ultimately arrested for consuming and possessing alcohol in a public place. Because of his disrupted night, Mr Sullivan called his work to inform them that he could not go to work on that day.

In response to these complaints made by Mr Kilby and Mr Sullivan, on 20 October 2008 Ms Hackman sent a letter to John making an appointment to discuss complaints that had been made. The appointment was for 2pm on Monday, 27 October 2008.

On 27 October 2008 Ms Hackman gave John another notice to remedy, alleging a breach of clause 70 of the standard terms which prohibited a tenant from interfering or permitting interference with the quiet enjoyment of the occupiers of nearby premises. The notice said that:

Housing ACT has received information indicating that you are causing neighbourhood disturbances such as playing loud music at night and anti-social behaviour such as loud screaming and other loud noises that is disturbing other tenants peace and quiet enjoyment of their properties. Food scraps being thrown on the floor of the common stairwell.

That notice was given to him when he attended with a worker from ASSIST and had a meeting with Ms Hackman and the Commissioner’s Client Support Coordinator. The complaints made in complaints 10505 and 10504 were outlined to John. He said that he had not been noisy or disruptive except on one occasion when he had guests for half an hour on 15 October 2008. He denied owning a stereo and said his radio could not generate much noise. On this issue the support worker from ASSIST corroborated the fact that John did not own any property that could generate loud noise. He was asked about food in the stairwell and John said the only time was when he had guests over and half a hamburger was dropped. He stated that on occasions he did throw bread onto the lawn on and around the gumtree for the birds. He was informed that he was in breach of his tenancy agreement if he left food on the common area stairwells. After being given the notice to remedy and having the contents of it explained to him, John said that he understood what he was required to do. The Client Support Coordinator explained to John that if Housing ACT received any further complaints the next legal notice that may be served may be a notice to vacate. John said that he understood.

This information given by John to Ms Hackman was not correct. He had acted in a substantially disruptive fashion over a number of days. However, it is important to note that he made no admissions and that this had the potential to make the defendant’s task of managing or evicting him significantly harder.

On 29 October 2008 the defendant received a letter dated 26 October 2008 from Mr Harris complaining about John. The letter, although making a complaint about John and the defendant, was a model of courtesy. Mr Harris referred to the problem of antisocial behaviour and alcoholism that John displayed. The letter referred to the disturbances which compelled his neighbours to call police. He continued:

I requested, and was assured I would be moving into a block inhabited by quieter, older people, and this block is certainly not quiet or occupied by older people…

The letter then complained about Mr Sullivan waking him when he left early for work and when his teenage daughter stayed there. He referred to a threat by Mr Sullivan to call the police if he didn’t turn his TV down. He referred to suffering from bipolar disorder and appealed to Ms Hackman to advise him about obtaining a transfer to more suitable housing. This was a possibility that he had been aware of but had been reluctant to pursue previously because he was friendly with Mr Sullivan and Mr Kilby.

He concluded his letter:

I appreciate your kind attention, and await your advice with anticipation and thank you for your possible consideration, and help, to achieve a more suitable environment, where I can live a peaceful life, which is all I ask, and all I aspire to sincerely and with best wishes, [signature].

On 5 November 2008 Ms Hackman wrote to Mr Kilby in response to his phone call to the Complaints Management Unit (complaint 10505) about his concerns about “a Housing ACT tenant playing loud music every night, making loud noises including yelling and screaming and leaving food scraps in the common area stairwell.” She said:

I would like to inform you that Housing ACT is taking your concerns very seriously. As I am sure you understand, Housing ACT is bound by the Privacy Act, and therefore I am not able to disclose to you the specific details of the action I have and will be taking to address your concerns.

The letter suggested that he call the police if he felt intimidated or threatened by his neighbour.

Ms Hackman wrote a letter in similar terms to Mr Sullivan on the same date about complaint 10504.

On 14 November 2008 Mr Kilby reported to police that John was with a male known as Paul and that Paul was upstairs yelling out that he had a gun and asking “who wants to die next”. Police attended the property a few minutes later and found there was no damage, no noise and no other persons concerned about John. Police observed that the apartment was secure and there was no noise inside.

Mr Harris’ diary records that in response to this incident he rang ACT Housing.

On 17 November 2008 Mr Kilby called the Complaints Management Unit about John (complaint 11081) saying that very recently he was walking around the flats yelling “who’s going to die tonight, he’s going to die tonight, who’s up”. He was drunk and went to his unit and started waving around what looked like a gun. The police were called. He made a complaint that John’s friend was back and they were still making noise and throwing rubbish in the stairwell.

On 27 November 2008 Mr Harris’ diary records an entry at 9.30am: “John playing stereo loud!” and at 9.00pm: “John playing music loud again!!”

Mr Harris and Mr Kilby first saw solicitors in mid-November 2008. On 8 December 2008 Mr Harris recorded that his solicitors were preparing a letter for Housing that day. On 9 December 2008 he recorded at 6pm “John drunk + loud!! Slamming doors, playing loud music”.

On 10 December 2008 Mr Kilby made a telephone complaint to the defendant. This was recorded in the defendant’s documents as complaint 11421. He described John as “a timebomb”. He is recorded as saying:

[p]eople in the complex do not want to come out of their units when he is around. Last night 9/12/08 Mr Kilby claims that the tenant started banging doors at around 11.00pm, he then turned his music up really loud and was hanging out the window screaming “who’s going to die tonight”. This went on until about 2.00am. Mr Kilby claims that the tenant laughs at them when he comes across them as HACT are doing nothing to stop the disturbances.

Consistently with what appears in the defendant’s records, Mr Harris recorded in his diary on 10 December 2008 that Mr Kilby rang ACT Housing concerning John. An entry for the evening of the same day records: “John played up again tonight - still shouting at 3 AM!” On 11 December 2008 he has a reminder to “ring Blumers re John + letter to Housing”.

On 12 December 2008 the support worker who attended the meeting on 27 October 2008 wrote to Ms Hackman saying that “all indications seem to be that when John drinks to excess he has blackouts and cannot remember what has happened, therefore cannot recall his previous anti-social behaviour”. He set out the discussions that he had had with John in an attempt to minimise his drinking and deal with detoxification and rehabilitation.

On 12, 18 and 23 December 2008 Ms Hackman attempted to make contact with John over his noise and disruptive behaviour complaints. She left a calling card for him on those dates.

On 23 December 2008 Ms Hackman had a home visit with Mr Kilby and explained Housing ACT’s complaint and legal processes. She asked whether he would be willing to testify in court over his complaints about John. She explained that ACT Housing had a “Disruptive Behaviour Record”. This was a collection of standard forms used to record the disturbances in circumstances where legal intervention may be needed. It was sometimes also referred to as a disruptive behaviour pack. It contained instructions on how to fill it out. Mr Kilby expressed an interest in completing one and asked for two more packs to give the other residents.

On 1 January 2009 there is an entry in Mr Harris’ diary that states: “John making noise at 4 AM!”

Ms Hackman wrote to Mr Kilby on 5 January 2009 thanking him for his letter to Housing ACT Complaints Management Unit. This was in response to complaints 11081 made on 17 November 2008 (see [75]) and 11421 made on 10 December 2008 (see [78]). The letter said that Housing ACT had taken his “concerns very seriously and appropriate action has and will be taken to remedy your complaint”. It referred to the fact that she had provided him with a Housing ACT disruptive behaviour pack to assist in recording the disruptive and antisocial behaviour with reply paid envelopes for his convenience.

On 9 January 2009 Ms Hackman called Mr Kilby to check if he had any questions about the disruptive behaviour packs. He said that he had provided them to Mr Sullivan and Mr Harris and that they should all be submitting the disruptive behaviour packs early next week.

On 9 January 2009 Ms Hackman wrote to John referring to the notice to remedy issued on 27 October 2008. In the letter she says:

This letter is to advise you that Housing ACT has received further complaints alleging that you are causing neighbourhood disturbances such as playing loud music and anti-social behaviour such as loud screaming, threatening behaviour and other loud noises such as banging doors that is disturbing other tenant’s peace and quiet enjoyment of their properties as well as rubbish being thrown on the floor of the common area stairwell.

The letter says that the conduct amounts to a breach of clause 70 of the standard terms of the lease as well as various other provisions. It warns that “if the disruptive behaviour is not remedied and Housing ACT receives further complaints a Notice to Vacate may be served on you from 12 January 2009”.

On 13 January 2009 there is an entry in Mr Harris’ diary that recorded: “John shouting, swearing, playing loud music until 4 AM!” The next day, 14 January 2009, he recorded: “John playing up again today, rang Housing, Police, EPA. No response”.

On 20 January 2009 Mr Kilby filled out disruptive behaviour pack forms relating to the incident on Christmas Day 2007 as well as the incidents on 13-14 October 2008.

At the same time he also recorded complaints in relation to events on 29 November 2008, 30 November 2008, 9 January 2009, 10 January 2009, 18 January 2009 and 19 January 2009. These are complaints which may be summarised as loud music, swearing, threatening behaviour, slamming doors and windows and screaming.

Mr Sullivan completed filling out the forms in the disruptive behaviour pack some time shortly after 19 January 2009 and recorded the incidents on 13-14 October 2008, 15 October 2008, 16 October 2008. He also completed documents headed “statement of complaint” which Mr Sullivan filled out with complaints relating to events on 29 November 2008, 30 November 2008 9 January 2009, 10 January 2009, 18 January 2009 and 19 January 2009.

Mr Harris completed his forms in the disruptive behaviour pack on 20 January 2009. He described the incident on 13-14 October 2008. He also made complaints about conduct on 29 November 2008, 30 November 2008, 9 January 2009, 10 January 2009, 18 January 2009 and 19 January 2009.

On 20 January 2009 Mr Harris’ diary entry for 5.30pm recorded “John stood on grass verge and made a gesture pretending to aim a rifle at Greg’s window!” On 21 January 2009 his diary entry recorded: “John + boarder (has been staying for two weeks now) playing up all afternoon.”

On 3 February 2009 the entry in Mr Harris’ diary for 5.30pm is “John came home shouting + slamming doors. Houseguest of one month involved”.

Mr Harris completed his forms in the disruptive behaviour pack sometime after 4 February 2009. He recounted the incident on 25 December 2007, stated that John was frequently inebriated and played his stereo and TV loudly. He said he used abusive and intimidating language such as “somebody is going to die tonight” and that this behaviour had continued throughout 2008 and 2009. He reported events on 14 October 2008 and 17 October 2008. He complained about being put into a block of units with such a person. He referred to the fact that he was taking legal action against the “Department of Housing”. He referred to John attacking Mr Kilby with an iron bar on 4 February 2009.

This last reference is explained by his diary entry which reports information given to him by Mr Kilby:

John jumping up and down on the floor and playing loud music. Greg had a go at him and he promised it wouldn’t happen again! Greg turned John’s electricity off, John confronted him with an iron bar, Greg punched him. John later apologised and said he was very angry because he’d been told he has to move by housing. I rang Phil Schubert at Blumers to report incident.

There is then a reference to events that happened at 10.30pm and midnight that evening which are explained in police records.

Police records show that on 4 February 2009 at about 6pm, police identified John walking along Bunda Street with a piece of timber similar in length to a wooden shovel handle. Police spoke to him and he agreed to place the handle in his backpack and continue home. At around 10pm the same evening, police received a complaint from Mr Kilby that John had a crowbar and was trying to gain entry to his own unit with the crowbar. Police could not find John. Police were called back at about 11.40pm and saw two males standing at the upstairs window. One of them was John. Police asked John to come down and talk with the police to which he replied “Fuck off or I will shoot you”. He was waving a broken wooden handled hammer around. After a short period of negotiation police got John to come down to the front lawn. John made several threats towards his neighbours including a threat to jump through Mr Kilby’s window and kill him. He was placed under arrest for a breach of the peace. He was subsequently taken by police to the Canberra Hospital. On 6 February 2009 he absconded from hospital. He was found at 3.45pm that day and taken back to the Canberra Hospital.

Mr Sullivan made a telephone complaint to the Acting Regional Manager of Central Region of ACT Housing about John’s conduct in early February. He complained about incidents on 1 and 3 February where John used a crowbar to attempt or gain access to his unit. He described the incident on 4 February 2009. He said that on 5 February 2009, John was apprehended by the police. He said that on 6 February 2009 John returned and threatened Mr Sullivan. He asked the defendant to find alternative accommodation for himself or remove John. The Acting Regional Manager spoke with another manager at ACT Housing who advised that additional security would be put in place for the weekend and that Mr Sullivan would be visited on Monday 9 February 2009. Mr Sullivan said that he did not see any additional security measures and could not recall being visited on the Monday. I cannot find that those additional measures were put in place or that Mr Sullivan was visited notwithstanding the intention of officers of the defendant to do so.

On 6 February 2009 Mr Harris’ diary records: “John back! Still disruptive”.

On 9 February 2009 Mr Harris signed a “witness report” dealing with events on 25 December 2007, 14-17 October 2008 and 4 February 2009. In relation to the incident on 4 February he records that John attacked Mr Kilby with an iron bar, was arrested by the police and threatened to “kill you all”. He had a meeting with Ms Hackman and another officer of the defendant and provided them with the incident reports. His diary records: “meeting with Pam +? (Sarah) from Housing Department. Discussed problems with John + gave them incident reports. Advised Phil Schubert [his solicitor].” Mr Kilby signed a “witness report” which confirmed that he had read Mr Harris’ statement and confirmed that it was correct.

On 17 February 2009 Mr Harris’ diary entry states at 11.00am: “John drunk + blasting stereo”. The entry for 1.00pm the same day was “police came to John’s and took him away in a squad car!” He was arrested by police in relation to an allegation of stalking. On 18 February 2009 Mr Harris recorded: “John came back. Played stereo even louder than yesterday + stomped on floor. Had words with Jim [Sullivan]. Left + caught bus at 1:50 PM”. On 19 February 2009 John was arrested for a breach of bail conditions at the Westfield Woden shopping centre. On 20 February 2009 he was arrested again for a breach of bail and this time he was remanded in custody.

On 23 February 2009 a representative of the Department of Housing and Community Services wrote to the ACT government solicitor saying:

Advice received from [the Commissioner] on 18th February 2009 was that although discussions have been ongoing in an attempt to resolve these issues, [the Commissioner is] in the process of issuing a Notice to Vacate.

Between 20 February and 2 April 2009 John was remanded in custody. On 9 April 2009 charges of common assault, minor theft and unlawful possession of stolen property were dismissed pursuant to s 334(2)(a) of the Crimes Act.

John was released on bail on 2 April 2009. The entry in Mr Harris’ diary on 2 April is “John back!!” On 3 April 2009 he recorded that John was “playing loud music, etcetera”. John was found by police in an intoxicated state at McDonalds in Dickson on the evening of 4 April 2009 and arrested for breaching his conditions of bail. On 8 April 2009 Mr Harris recorded “John extremely drunk, yelling, cursing, playing music extremely loudly, annoying people at bus stop. Fell asleep at bus stop but gone at 1.15”.

On 10 April 2009 Mr Sullivan called police. John had been playing loud music. Mr Sullivan had spoken to him a number of times about it and had been met with abuse and threats. John came into his unit and began abusing him and threatened to kill him. Mr Sullivan believed he was intoxicated and would not carry out the threat but believed that John may cause a confrontation and violence would result. Police were called and located John asleep on the ground beside a bus stop a short distance away on Chisholm Street in Ainslie. He was very clearly under the influence of an intoxicating substance. When spoken to by police he demonstrated mood swings and was verbally aggressive towards police. He was taken to hospital and ultimately bound over to keep the peace by the Magistrates Court.

The entry in Mr Harris’ diary on 11 April 2009 recorded “John threatened to stab Jim - police came + took him to jail.” On 12 April 2009 Mr Harris recorded: “John playing stereo loudly again still playing [stereo loudly] up to 2 am when Jim [Sullivan] confronted him!”

By 17 April 2009 Mr Sullivan was so distressed by the return of John to the premises that he called the Crisis Assessment and Treatment Team at the Canberra Hospital reporting that he felt homicidal and that:

[h]e has been having issues with a man who has been threatening him for 2 years. The man in question was released from jail last friday and has already apparently threatened to kill James.

He reported that he was experiencing severe sleep deprivation and had fallen asleep at the wheel while driving. He described himself as being at the end of his tether and reported that no one will help him. He subsequently received follow-up contact from the CATT. He continued to report significant symptoms even after John had left the property.

On 28 April 2009 Mr Harris recorded, “4 police visited John - reason unknown but think he was warned not to appear in public under the influence of alcohol.”

On 29 April 2009 Mr Harris recorded: “phone call from Pamela Hackman Dept Housing re - court appearance at tribunal against John.”

On 30 April 2009 Ms Hackman prepared a request to issue a notice to vacate. That was a document which needed to be signed and approved by her manager. It recorded a number of efforts since 11 December 2008 to contact John or otherwise get assistance in dealing with him. It also recorded that between 20 February 2009 and 2 April 2009 he was held in custody on remand. The request was approved by her manager who signed the form under the printed text:

I believe the Housing Manager has explored all appropriate options in assisting the tenant to comply with the Tenancy Agreement. Consistent with the relevant legislation, policies and procedures I AGREE to issue a NTV to the tenant.

On 1 May 2009 the defendant gave John a termination notice requiring him to vacate the premises before 17 May 2009. This notice was based on the notice to remedy served on 27 October 2009 and the fact that he had caused an interference with the quiet enjoyment of occupiers of nearby premises. It was served personally on John at his flat. Mr Harris recorded that he was telephoned by Ms Hackman about some documentation relating to John.

On 5 May 2009 Mr Harris provided a detailed chronology from November 2008 through 2 April 2009 of disruptive behaviour by John. His letter referred to his and his neighbours’ health suffering as a consequence of John’s actions. He referred to what he said was an assurance that he was moving into a block where his neighbours were quiet and reasonable. As I have indicated above, that reflected Mr Harris’ expectation rather than any actual assurance by a representative of the defendant. He referred to his bipolar disorder and the steps that he had been required to take to deal with John’s behaviour. The letter also referred to him having sought legal advice in attempt to resolve the issue. The defendant received this letter on 8 May 2009.

On 14 May 2009 Ms Hackman wrote to Mr Harris in response to the statement of complaint that he had provided to Housing ACT in response to her request for further information about the destructive and antisocial behaviour of a neighbour. She said that because of the Privacy Act she could not disclose the specific details of the action that she had taken and would take to address his concerns about his neighbour. She suggested he call the police if he felt threatened or intimidated by his neighbour.

On 15 May 2009 an internal document of the defendant records that a complaint of antisocial behaviour was dealt with by referring it to the manager of the central region. It records the response to the complaint was “NTR Served for noise and nuisance 1/5/09 - see attached”. The complaint was recorded as being closed on 15 May 2009.

On 15 May 2009 Mr Harris recorded, jubilantly: “John moved out - back to Ainslie Village!” On 20 May 2009 John signed a “surrender of keys” document indicating that he had formally handed back the keys to the property.

The entry in Mr Harris’ diary on 12 March 2009 indicates a desire to add to the records of the consultation with “Dr Chris” (Dr Christine Phillips) a reference to stress due to problems with his neighbour on 14-17 October 2008. This is consistent with Mr Harris at this stage being concerned to generate evidence that might improve his case against the defendant. Similarly the entry on 12 May 2009 recorded: “Dr Glanville Mental Health. Discuss problems with [John] + why I perhaps failed to mention this at our initial appointment. Take last year’s diary to confirm...”. This further demonstrates the plaintiff’s consciousness of the legal process.

There was also in evidence some video footage taken from a camera located outside Mr Sullivan’s front door. It was taken when John, Mr Sullivan and Mr Kilby resided in their units but the date of the video is not clear. It is likely to be some time after November 2008 when advice from solicitors was first obtained. It shows the front door of John’s unit and it is possible to hear rock music in the stairwell. It shows John, in an intoxicated state, leaving his unit and going down the stairs. Mr Sullivan can be heard saying unpleasant things to him through the door. Taking the bait, John responds by kicking the screen door on Mr Sullivan’s property. He combines threats of cutting Mr Sullivan in half and blowing up his car with apologies and statements that Mr Sullivan is a “good bloke” and he is trying to be his friend. When John goes down stairs Mr Kilby can be heard being unpleasant to John at the bottom of the stairs.

Overview of disruption

Mr Sullivan described the situation prior to Christmas Eve 2007 as involving disturbances every month, some of a high degree, some of a low degree. It involved loud music after 11 o’clock at night and screaming and yelling coming from John’s flat. That is consistent with Ms Arch’s evidence. Between January and June 2008, Mr Sullivan described John as clamming up for a while and then the noise would come back. I am satisfied that even during the period from December 2007 to May 2008 noise disruptions caused by John continued. They were not significant enough to warrant complaints to the defendant or at the level prior to the December 2007 incident. As a consequence, Mr Sullivan reported to Ms Hackman in early May 2008 that he was happy with the situation.

In May 2008 there was a period of significant disruption caused by the guests staying at John’s flat. The complaints arising out of that period led to a notice to remedy being issued. While I am satisfied that there was some noisy behaviour after that it was not sufficient to warrant any complaints to the defendant or even for Mr Harris to make any record or note of disruption in his diary. It constituted a background level of inconsiderate conduct but did not provoke any crisis.

Following the expiry of the good behaviour order in October 2008 there was the very significant period of disruption between 13 and 17 October 2008. After this both John’s intoxicated behaviour worsened and the recording of his bad behaviour by the plaintiffs increased. Between November 2008 and February 2009 there was continuing incidents of intoxicated disruption. This led to the defendant distributing the disruptive behaviour packs to allow it to gather evidence to support a termination and possession order. The defendant came to the realisation by February 2009 that it would have to give a notice to vacate. That process was interrupted by John’s remand in custody in March 2009 but when he was released, he continued to be disruptive. At the end of April the formal decision was made to issue a notice to vacate the premises although steps were still being taken to gather evidence to support the termination if it was contested.

Section 37 of the Housing Assistance Act

In each of the proceedings the defendant has pleaded that at all material times it was acting in the exercise of functions given to it under s 11 of the Housing Assistance Act honestly and without recklessness and as a consequence is entitled to immunity from personal liability granted under s 37 of the Housing Assistance Act. The defendant submits that because of s 37, the defendant is protected from liability and, because the plaintiffs have not sued the Territory, their claims must fail in limine.

In 2008, s 37 of the Housing Assistance Act provided:

37Protection of officials from liability
(1)In this section:

official means—
(a)the housing commissioner; or
(b)anyone else exercising a function under this Act.

(2)An official is not personally liable for anything done or omitted to be done honestly and without recklessness—
(a)in the exercise of a function under this Act; or
(b)(in the reasonable belief that the conduct was in the exercise of a function under this Act.

(3)Any liability that would, apart from this section, attach to an official attaches instead to the Territory.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any approved housing assistance program or regulation (see Legislation Act, s 104).

The Housing Assistance Act 2007 repealed the Housing Assistance Act 1987. Section 11 of the Housing Assistance Act 1987 provided:

11Protection and liability of commissioner
(1) A person who holds, or has held, the office of commissioner is not liable, personally, to an action or other proceeding for or in relation to an act done or omitted to be done in good faith in exercise or purported exercise of any function given to the person as the holder of that office.
(2) If, by an act or omission of the commissioner or another person acting or purporting to act in good faith for the commissioner, a person sustains a loss or injury that would have entitled that person to a remedy in relation to the loss or injury if the act or omission were an act or omission of an individual—
(a)the person sustaining the loss or injury is entitled to the same remedy against the commissioner in the corporate capacity of the commissioner as the person would have been entitled to against an individual; and
(b)the liability of the commissioner shall be discharged by the Territory.

The terms of this section made it clear that it drew a distinction between personal liability of a person who had held the office of Commissioner and the liability of the Commissioner in its corporate capacity. The provision protected persons holding the office of Commissioner from personal liability but imposed that liability on the body corporate. The Territory was obliged to discharge the liability on the body corporate.

The explanatory statement for the Housing Assistance Ordinance 1987 provided:

The person suing is entitled to the same remedy against the Commissioner in his corporate capacity as the person suing would be entitled to against a natural person. The liability of the commissioner will be discharged by the Commonwealth.

Upon self-government the obligation on the Commonwealth was amended to be an obligation on the Territory.

When the bill for the 2007 Act was before the Legislative Assembly the explanatory statement provided:

This clause protects the Commissioner for Social Housing and anyone else exercising a function under the Act from liability resulting from anything done or omitted in the exercise of a function under that Act or in the exercise of a function under the Act, as long as it was done honestly and without recklessness. Any such liability attaches to the territory instead. This is similar to section 11 of the old Act.

The drafting of s 37 of the Act makes an attempt to pick up and modernise the drafting of the old s 11. However it does not do so with sufficient rigour. The old Act drew a distinction between:

(a) the personal liability of an individual who held the office of commissioner;

(b) the corporate liability of the commissioner being a corporation sole established under s 7 of the Act; and

(c) the liability of the Territory.

Section 11(1) of the old Act excluded any personal liability. Section 11(2) picked up any liability that was excluded by s 11(1) and imposed it on the body corporate. It then proceeded to place an obligation on the Territory to discharge the obligation on the body corporate. Section 37(2) of the new Act excludes personal liability of an official. The reference to “personally” indicates that the subsection is performing the role equivalent to (a) above. However s 37(3) is in general terms and, instead of imposing the liability on the body corporate established by s 9(2) of the Act, imposes the liability on the Territory. This leaves open the argument that the section has the effect of removing all liability from the housing commissioner and imposing it upon the Territory. The effect of that would be that the plaintiffs had sued the wrong defendant and were out of time to sue the Territory.

Although the drafting of s 37 is less than ideal I do not think it has the effect for which the defendant contends. First, in terms of the text of the Act there is nothing that expressly precludes the corporation established by s 9(2) from being liable for actions that it takes. Second, subsection (3) only attaches to the Territory liability that would, apart from s 37, have attached to an official. Section 37 only precludes personal liability of an official and does not affect any liability other than personal liability. As a consequence, subsection (3) only imposes upon the Territory a personal liability which would have attached to an official. It leaves unaffected any liability that attaches to the corporation established under s 9(2). Third, this result is consistent with the extrinsic material, namely, the statement in the explanatory statement that the new provision “is similar to section 11 of the old Act”. There is nothing in the extrinsic material to indicate that the intention of s 37 was to extinguish entirely any liability of the Commissioner and impose it on the Territory as opposed to merely addressing the personal liability of persons performing the functions of the Commissioner.

In the present case the fundamental relationship between the defendant and the plaintiffs was that of landlord and tenant. That was a contractual relationship governed by the terms of the residential tenancy agreement between the parties.

I address below the factors which might be argued to give rise to a duty of care to the extent alleged by the plaintiffs in the present case.

Vulnerability: Although the plaintiffs did not specifically plead the existence of a relevant duty of care, the plaintiffs have specifically pleaded their vulnerability, presumably as a basis for the existence of a duty of care going beyond the orthodox duty owed under s 168 of the Civil Law (Wrongs) Act. The evidence did disclose that the defendant was aware of the particular vulnerabilities of the plaintiffs Mr Harris and Mr Kilby. However, although the plaintiffs had their vulnerabilities, neither the nature of those vulnerabilities nor the landlord-tenant relationship put them in a category that is recognised as one of the special relationships involving an extended duty of care such as school and pupil, employer and employee, bailor and bailee, gaoler and prisoner.

Control: The element of control is a matter of significance. In Modbury the lack of control was a significant factor in rejecting a duty to control the assailants. In the present case the position is more favourable to the plaintiffs in that there was a relationship between the landlord and the disruptive neighbour, namely landlord and tenant. However while there was a degree of control, arising out of the fact that John was also a tenant of the defendant, it was not such as to justify the imposition of a duty of care to protect the plaintiffs. Fundamentally, the defendant had parted with possession of John’s unit when it entered into the lease with him. The degree of control over John was limited to the contractual entitlements of the defendant under the lease. The degree of control was not such that on any particular occasion the actions of John could be controlled.

Assumption of responsibility: At no stage had the defendant assumed responsibility for protecting the plaintiffs against disruption from other tenants. It is correct that the offer of accommodation made to Mr Harris was in response to his desire to escape the disruption that was present at his former residence in Ainslie Village. However the defendant did not assume any responsibility other than that which arises in relation to the physical state of the premises. It did not assume a responsibility to maintain the mental health of the plaintiffs or to ensure the absence of disruption by neighbouring tenants or other residence of the housing complex.

Reliance: Notwithstanding the fact that reliance is out of favour as a criterion for the existence of a duty of care: see Pyrenees Shire Council v Day (1998) 192 CLR 330, Gleeson CJ accepted, in Modbury (at [22]), that it is “sometimes the basis of a duty of care”. However, this is not one of the limited situations of such magnitude or complexity that individuals cannot or may not take adequate steps for their own protection and where “members of the community rely on the relevant public authority, often endowed with extensive powers, to protect them from harm”: Pyrenees Shire Council at [107] per McHugh J. In the present case the plaintiffs were not in such a position. Even recognising the difficulties that they faced as a result of their personal circumstances, the problem of a disruptive neighbour was not one of the limited situations of complexity where they necessarily relied of the defendant to protect them from harm.

Statutory context: This is not a case where the imposition of a duty on the defendant would be inconsistent with a statutory obligation to other persons: Sullivan v Moody (2001) 207 CLR 562 at 582. As Adeels Palace demonstrates, the statutory context in which an occupier operates may be a significant factor in favour of a broad scope of an occupiers’ duty of care. In the present case the Housing Assistance Act 2007 does not clearly support the existence of an extended duty of care. The objects of the Act are set out in ss 6-7 of the Act:

6Objects
(1)The main objects of this Act are—

(a)     to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs; and
(b)    to facilitate the provision of housing assistance for those most in need; and
(c)     to maximise value for money in the provision of housing assistance; and
(d)    to promote a choice of forms of housing assistance, and providers of housing assistance, for entities eligible for housing assistance; and
NoteEntity includes a person—see the Legislation Act, dict, pt 1.
(e)     to facilitate the provision of rental housing that—
(i)has adequate amenity, is of an adequate size and is appropriately located for employment opportunities and necessary services and facilities; and
(i)is coordinated with any support services (provided under other laws) required by consumers of housing assistance to live in the community; and

(f)   to facilitate the provision of an adequate supply of affordable home finance for people on low and moderate incomes; and
(g)    to promote the development of flexible and innovative financial arrangements to facilitate access to home ownership for people on low and moderate incomes; and
(h)    to promote the growth of a community housing sector as a viable alternative to public and private rental housing and home ownership; and
(i)   to promote the establishment of appropriate mechanisms and forums to allow input into housing policy by consumers, and potential consumers, of housing assistance and by representative non-government agencies involved in housing policy and provision.

(2) A person administering this Act must have regard to the objects of the Act to the maximum extent practicable considering the resources available to the person.
7What is housing assistance?
In this Act:
housing assistance means services, programs, assets, rebates and amounts, provided under an approved housing assistance program to help entities who are eligible for assistance under the program to meet their emergency, short-term, medium-term and long‑term housing needs.
Note Approved housing assistance program—see s 19.

The Act permits the approval by the Minister of housing assistance programs: s 19 and guidelines relating to the procedures for the management or operation of such housing programs: s 21. The objects of the Act and the functions of the defendant are matters which may reasonably be deployed both for and against the existence of a duty of care of the type contended for by the plaintiffs.

While the objects of the Act are no doubt worthy ones, they do not clearly support the existence of an extended duty of care. There is recognition in s 6(2) of the inevitable resource constraints on the provision of public housing. In so far as the objects might impose obligations on the defendant in relation to providing housing to the plaintiffs, so too do they support obligations on the defendant in providing housing to John. Therefore, I consider the statutory context as effectively neutral in relation to the existence of the extended duty contended for by the plaintiffs.

Section 110: No oral evidence was led by the defendant in relation to the issues raised by s 110 of the Civil Law (Wrongs) Act. However the annual reports relevant to the activities of the defendant for the financial years ending 2008 and 2009 were in evidence. Those reports disclose that the task undertaken by the defendant was a substantial one. In the 2007-2008 financial year, the defendant was responsible for 11,654 dwellings accommodating 23,168 people. Complaints to Housing ACT were managed by the Complaints Management Unit (CMU). The CMU was responsible for the registration and tracking of all complaints and ensuring that the complaints were dealt with. In the 2007-2008 year the CMU handled approximately 2080 complaints. In the 2008-2009 year the CMU handled 2599 complaints. The largest number of complaints was in relation to disruptive behaviour or neighbourhood disputes with 1133 complaints lodged in 2008-2009.

Thus in determining whether or not the extended duty of care exists I must have regard to the fact that if it exists in relation to the plaintiffs, then it exists in relation to many if not all other public housing tenants. The defendant has a substantial responsibility to provide housing to a large number of disadvantaged people. Any additional duty imposed by the Court will be one which applies not simply to the plaintiffs but in relation to all tenants across the whole of the defendant’s operations. That is potentially a significant burden on the defendant and its capacity to fulfil its statutory mandate in circumstances where the nature of the tenant base of the defendant is such that many tenants will have a range and severity of conditions making them more vulnerable than the population at large to the errant conduct of others. I say “potentially” because the Court is not in a position to determine the scope of the burden imposed. However I have had regard to the fact that such an obligation would be a significant and widespread duty to impose over the top of the contractual relationship between the parties.

Having regard to the state of the authorities in the United Kingdom and the factors, derived from the Australian authorities referred to above, I do not consider that the defendant owed to the plaintiffs a duty of care to protect them from the disruptive conduct of John. As a consequence, it owed them no duty of care to terminate his lease or seek to obtain a termination and possession order for his premises.

This conclusion is sufficient to dispose of the plaintiffs’ claims in negligence. However, in case I am wrong about the scope of the duty owed by the defendant to the plaintiffs, it is also appropriate that I express my views on whether or not, if a duty existed, it was breached and make a contingent assessment of damages.

Breach of duty

The duty of care, if it existed, could only have imposed on the defendant an obligation to take reasonable steps to prevent the disruptive conduct by John. What those reasonable steps comprised would need to be determined in accordance with ss 42, 43, 44 of the Civil Law Wrongs Act.

What was reasonable also needed to be determined having regard to the fact that:

(a) John had a lease from the defendant;

(b) unless John vacated the property, the defendant could only obtain possession of his unit by a termination and possession order granted by the Residential Tenancy Tribunal or, after 2 February 2009, an order of the ACT Civil and Administrative Tribunal: Residential Tenancies Act 1997 s 36;

(c) there are limited grounds upon which a landlord may terminate a lease, which are not without their complexities: Residential Tenancies Act 1997 ss 47-51; Devenport v Commissioner for Housing in the ACT and Residential Tenancies Tribunal (2007) 210 FLR 325; Faull v Commissioner for Social Housing for the ACT and Residential Tenancies Tribunal [2013] ACTSC 121;

(d) the defendant was bound by the Privacy Act 1988 (Cth);

(e) the defendant was bound by the Human Rights Act 2004 which, from 1 January 2009, included provisions which permitted orders to be made against Territory authorities and provided that John had “the right ... not to have his ... privacy [or] home ... interfered with unlawfully or arbitrarily”: s 12.

The evidence establishes that the defendant had a complaints system. A substantial proportion of the complaints made to the defendant were complaints by one tenant against another. The system involved at least, documenting and tracking each complaint until it had been finalised. In the case of the plaintiffs’ complaints it involved referring the substance of the complaint to the manager responsible for the particular public housing development and the taking of steps to address the complaints.

Although I have found that there continued to be a level of disruption throughout the period from December 2007 to May 2009, the three key periods which generated complaints were 25-26 December 2007, 14-17 October 2008 and January-February 2009. By February 2009 the defendant had determined to go down the path of terminating John’s lease but that was delayed by his period of detention on remand. In relation to those periods, the facts that I have set out above demonstrate that the defendant took steps to address the complaints made. The burden of taking those steps fell on Ms Hackman, the relevant housing manager.

The aim of the defendant was to try to get John to behave appropriately and hence to maintain his tenancy. It had to deal with John with a recognition that the best outcome was for him to behave himself so that he could continue to be provided with public housing. Further, the defendant had to deal with him in the context that, if ultimately it sought to evict him, it needed to be able to prove before an independent tribunal that a termination and possession order should be granted.

When each complaint was received the defendant took steps to address the problems raised.

The January 2008 complaint was dealt with by conducting a home visit in February at which John’s obligations were explained to him and an offer was made to put him in touch with organisations to assist him. This action was at least partially successful as there was no incident warranting a further complaint until May 2008. While reporting back on the progress of the complaint did not occur as promised in the letter from the defendant dated 31 January 2008, neither Mr Harris nor any of the other plaintiffs made any attempt to follow matters up.

The May complaints led to the issuing of a notice to remedy and the meeting with John on 27 May 2008 as well as action to address the welfare of the children and the issue of undeclared residents.

Following the October complaints Ms Hackman arranged the meeting of 27 October 2008 and served another notice to remedy. That meeting involved not only the worker from ASSIST to support John but also the defendant’s Client Support Coordinator. It is notable that the defendant was faced with denials of the conduct which were corroborated, in some respects, by the support worker from ASSIST.

After that, as the disruptive behaviour continued, the defendant set about gathering evidence to support a contested termination of John’s tenancy.

In my opinion, the steps taken by the defendant were reasonable having regard to the matters referred to above and the, quite appropriate, emphasis of the defendant on maintaining John’s tenancy by getting him to behave appropriately. Clearly enough the process involved a balancing exercise between the rights of the plaintiffs and the rights of John. From the plaintiffs’ points of view the process may have taken too long. One of the difficulties was that because of the limits imposed by the Privacy Act upon the defendant, the defendant was not fully able to disclose the action that had been taken in response to the plaintiffs’ complaints. This meant that the plaintiffs, reading the letters of 10 June 2008 and 5 November 2008 with a suitable degree of cynicism about letters from the government, might have perceived that nothing was really being done to address their concerns. That impression might have been reinforced by the fact that, contrary to what the plaintiffs were told would be the process, there was no final response to the January 2008 complaint until June 2008, notwithstanding that significant action had been taken in response to it. Any perception of inaction held by the plaintiffs was not consistent with the reality. The chronology above discloses appropriate steps were, in fact, being taken. The conduct of the defendant in responding to the complaints of the plaintiffs and in dealing with the disruptive conduct of John was, in my view, in all of the circumstances, a reasonable response to John’s disruptive behaviour and the complaints of the plaintiffs.

I do not accept the submission that by May 2008 the defendant should have removed John from the property. While that might have satisfied the plaintiffs and was a course which was open to the defendant to pursue and one which might have been able to be achieved, having regard, in particular, to s 44 of the Civil Law Wrongs Act it cannot be said that, if there was a duty, the defendant breached its duty in failing to adopt that course.

Similarly, in relation to the rest of the period up until May 2009, while the defendant may have been able to take a different approach to the problems that John created, it cannot be said that the approach it took amounted to a breach of its duty. It was faced with a difficult exercise balancing the legal rights of the plaintiffs, the rights of John, the limitations on its capacity to remove him from his tenancy and its goal of maintaining, if possible, the tenancy of someone who clearly needed public housing in one form or another. It managed those competing demands in a reasonable manner. As a consequence there was no breach of the defendants duty in failing to terminate or have terminated John’s lease in the period from May 2008 to May 2009.

In Mr Kilby’s case the breach of duty alleged in his case arises out of the incident in October when he slipped on food outside his door. The plaintiff, quite properly, did not put his case on the basis that it was a cleaning case. Rather, it was a case based on the failure by the defendant to have John removed from his tenancy prior to that time. Mr Kilby’s claim cannot succeed because there was no breach of duty in failing to have John removed by that date.

Breach of contract

Before turning to my contingent assessment of damages, I will address the plaintiffs’ contractual claims. Each of the plaintiffs’ leases contained clause 52 of the standard residential tenancies terms required by s 8 of the Residential Tenancies Act 1997. That clause provides that “[t]he lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises”.

The plaintiffs have also alleged a breach of the implied covenant to provide quiet enjoyment of the premises. That entitles the lessee, once in possession, to remain in possession and enjoy it free of interference from the lessor.

In Eliezer v Residential Tribunal (2001) 53 NSWLR 657 McClellan J found that the obligation on a landlord under a statutory provision in similar terms to clause 52 did not impose an obligation on the landlord to require the landlord to control the activities of occupants of the other units within a strata complex who were not also tenants of the landlord. The landlord’s obligation was confined to matters over which the landlord had physical and legal control and did not require the landlord to take proceedings or other steps to control the activities of strangers.

The plaintiff relied upon the decision of Justice Shaw in Department of Housing v Consumer, Trader and Tenancy Tribunal and Anor [2003] NSWSC 150. In that case Shaw J was dealing with an appeal to the Court which was confined to an appeal on a “matter of law”. The case involved harassment and intimidation of one tenant by another. The tenant relied upon s 22 of the Residential Tenancies Act 1987 (NSW) which placed an obligation on a lessor in similar terms to clause 52 of the standard residential tenancy terms. His Honour found that it was open to the Tribunal to find that the Department of Housing was liable. In relation to the meaning of “permit” in the phrase “cause or permit any interference” his Honour said (at [24]-[30):

The applicant sought to apply a maxim of statutory interpretation, noscitur a sociis, to the phrase ‘shall not interfere, or cause or permit any interference’. The applicant submits that the word ‘permits’ takes on a content, in this statutory provision, similar to that of the word ‘cause’. In this sense, the applicant submits, the word ‘permits’ means some kind of volitional activity and, further, mere indifference or an omission, such as failing to take action against the neighbouring tenants, cannot amount to permission on the part of the Department.

The appellant made reference to observations in the High Court in Adelaide City Corp v Australasian Performing Rights Association (1928) 40 CLR 481 where it was said by Isaacs J that the word ‘permits’ is one of extensive connotation and that it should not be restricted to narrow limits. Higgins J focused his mind on the application of the words in the context of concrete facts. His Honour thought that:
To show such permission, it must be shown, inter alia, that the corporation willed the song to be sung, and communicated that will in some way to the singer or his employer. (At 500.)

It was held in Broad v Parish (1941) 64 CLR 588 at 594 that ‘apart from any arbitrary definition [the word permit] connotes an authorisation of a person who has at least de facto control’. Reference was also made by the appellant to English authority on this question of the legal status of the term ‘permission’: Barton v Reed [1932] Ch 362 at 377; Bromsgrove District Council v Carthy (1975) 30 TNCR 34; Lomas v Peek [1947] 2 All ER 574 at 575; and Commercial General Administration v Thomsett (1979) 250 EG 547.
However, it seems to me that none of these authorities take the word ‘permit’ beyond its ordinary Australian connotation, that is, in accordance with the Macquarie Dictionary definition (3rd ed) as meaning, ‘to allow...to do something; let (something) to be done or occur; to tolerate; to agree to’.
On the ordinary meaning of the word ‘permit’, to allow or tolerate a breach of statutory rights seems to properly ground an action to enforce those rights. It has been held that the concept of permission may, in some contexts, include the absence of appropriate steps to influence or control conduct, for example, in anti-discrimination law: Elliott v Nanda (2001) 111 FCR 240 per Moore J. In that case Moore J explained the legislative context of the term and noted the correctness of a ‘wide operation’ (at 292; para261).
As Moore J pointed out in Elliott v Nanda, no doubt depending on its own context, the concept of permission can include indifference or omission: referring to Adelaide City Corp v Australasian Performing Rights Association Ltd (1928) 40 CLR 481 at 487 per Knox CJ; see also Young v Australian Workers Union (1974) 5 ALR 347. Similarly, in Lyver v Victoria [1983] 2 VR 475 at 478 Young CJ held that wilful blindness or failure to take reasonable steps to prevent a contravention of a statutory regime may amount to permission.

He concluded (at [33]-[34]):

Taking no active step to remedy the situation after taking cognisance of the likelihood of further breaches is, in my opinion, sufficient for it to have been open to the tribunal to find that liability for the breaches could attach to the Department.
In all of these circumstances there is no clear or discernible error of law arising from the determination of the tribunal. There was a reasonable factual foundation for the conclusions of the tribunal that there was evidence of harassment, and that the Department was on notice for a significant period before any action was taken. It was therefore reasonably open for the tribunal to find that the Department did permit tenants to breach the quiet enjoyment of another tenant.

It is well established that if a landlord authorises a nuisance then the landlord will be liable to a party claiming in nuisance: Harris v James (1876) 35 LT 240. Further, the landlord may be liable for the tenant’s acts if in leasing the land to the tenant it was reasonably foreseeable that the tenant was likely to do the acts constituting the nuisance: Haig v Chesney [1925] SASR 82; R v Shorrock [1994] QB 279.

In Aussie Traveller v Marklea Pty Ltd [1998] 1 Qd R 1 the Queensland Court of Appeal addressed the circumstances in which a landlord may be held liable for a derogation from the grant or a breach of the implied covenant for quiet enjoyment by the lessee that arises out of conduct of another tenant. In that case a business that made staircases was located next to one which made canvas awnings. The lease for the staircase business included a term requiring it not to cause a nuisance. The sawdust and noise created by the staircase business affected the awnings business. The landlord said that it could not fix the problem and that it had no intention of fixing it unless the awnings business paid higher rent. McPherson JA, with whom Thomas J agreed, held that the landlord could be held liable because, although it had not been shown to authorise or encourage the nuisance, the landlord was capable of correcting it or terminating it by active intervention on its part. That appears to be because McPherson J considered that “the defendant adopted the noise nuisance” created by the staircase business at least by the time that it indicated it had no intention of fixing it unless the awnings business paid higher rent.

The decision in Aussie Traveller was distinguished in Peden v Bortolazzo [2006] 2 Qd R 574. That was a case in which it was asserted that a landlord was liable to neighbour for the nuisance caused by the landlord’s tenant. The Queensland Court of Appeal reviewed the authorities, including Smith and Hussain, and distinguished the cases which had involved two tenants of the same landlord from those where the claimant was merely a neighbour. Thus the decision is consistent not only with the cases from the United Kingdom but also the decision in Eliezer.

In this case, having regard to the facts that I have found and in particular the responses of the defendant to the plaintiffs’ complaints summarised at [191] – [198] above I am not satisfied that the plaintiffs have established that the defendant either:

(a) permitted, in the sense described by Shaw J in Department of Housing, John’s nuisance;

(b) authorised John’s nuisance in the sense contemplated by the older authorities referred to at [205] above;

(c) adopted John’s nuisance by failing to actively intervene so as to correct or terminate John’s behaviour as contemplated in Aussie Traveller.

As a consequence I am not satisfied that the defendant breached clause 52 of the standard terms incorporated into each of the plaintiff’s leases, derogated from its grant of a lease to any of the plaintiffs or otherwise breached the implied obligation to provide quiet enjoyment of the plaintiffs’ leases.

Damages

In case I am wrong in my conclusion as to the existence of a duty of care and breach of duty I will set out my assessment of damages. However it is first necessary to address a preliminary issue raised by the defendant in relation to damages in Mr Harris’ case.

The defendant submitted that it was not enough for Mr Harris to establish that he suffered some aggravation of his pre-existing recognised psychiatric illness. The defendant submitted that pursuant to s 35 of the Civil Law (Wrongs) Act it was not sufficient for the plaintiff to establish that he suffered an aggravation of an underlying recognised psychiatric injury. In order to succeed he would need to establish that he in fact suffered a recognised psychiatric injury.

The defendant pointed to the definition of “mental harm” in s 32 of the Civil Law (Wrongs) Act and s 35 of that Act. Section 32 provides mental harm, to a person, means impairment of the person’s mental condition.

Section 35 provides:

35Mental harm—damages
(1)Damages must not be awarded for pure mental harm to a person resulting from negligence unless the harm consists of a recognised psychiatric illness.

(2) Damages must not be awarded for economic loss for consequential mental harm to a person resulting from negligence unless the harm consists of a recognised psychiatric illness.

The defendant submitted that the legislature had recognised the distinction between “mental harm” and “a recognised psychiatric illness”. The defendant submitted that s 35 permitted recovery of damages if there was for the first time a pure psychiatric injury but not if there was the aggravation of such an injury. I do not accept this submission. It is clear that the purpose of s 35 was not to draw a distinction between a recognised psychiatric illness and the aggravation of a recognised psychiatric illness. Instead, it was designed to draw a distinction between the suffering of mental harm in the form of distress not amounting to a recognised psychiatric illness on the one hand and a recognised psychiatric illness on the other. The intention of the legislature is made clear by the terms of the explanatory statement for the Civil Law (Wrongs) Amendment Bill 2003 which provides in relation to the provisions which are now s 34 and s 35:

[t]he Bill provides that damages are not available for mental harm unless the mental harm is a recognised psychiatric illness. Implementation of this provision will avoid what appear to be early signs of the court is developing a new head of damages for “mere sadness”.

Therefore, in my view, s 35 permits recovery of damages for pure mental harm or economic loss for consequential mental harm when that harm consists of an aggravation of a recognised psychiatric illness.

Assessment of damages – Harris

Mr Harris relied on a letter of Dr Christine Phillips dated 3 April 2009 which expressed the opinion that Mr Harris’ suicide attempt in January 2008 reflected a deep level of distress occasions “in no small part” by the actions of his neighbour. It reported that his mental stability continued to be rather fragile over the next few months although she could not determine how much of this was occasioned by the behaviour of his neighbour and how much by other factors. By May 2008 his mental health was improving. Mr Harris consulted her again on 20 October 2008, after the period of days between 14 and 17 October when John was misbehaving. Mr Harris was quite agitated and described himself as being more suspicious. In Dr Phillips’s opinion the exacerbation of his illness was related to the altercation with his neighbour. He was prescribed antipsychotic medication in order to stabilise his mood. That treatment was effective. She described the events as involving an exacerbation of his long-standing bipolar disorder. Another letter of 22 October 2010 reported that his bipolar illness was very stable she described his ability to manage his condition as excellent.

Dr William Knox reported on Mr Harris’ condition on 7 April 2011. Dr Knox’s opinion was that “the disturbed behaviour of the neighbour was a very significant factor in the deterioration of Mr Harris’ mental health and his suicide attempt.” He describes the stressful circumstances of the disturbed neighbour as involving an aggravation of his underlying Bipolar Disorder.

It is significant that even if I had accepted the plaintiff’s case as to duty and breach, damages would only have flowed for the period from May 2008 to May 2009 because the plaintiff accepted that there was no breach prior to May 2008. I would have assessed general damages at $20,000, all in the past. I would have allowed interest at 4% since November 2008, being the middle of the period from May 2008 to May 2009. I would have allowed past treatment expenses of $1,611. There was some slender evidence of assistance he obtained from others when his bipolar condition was aggravated but this was assistance from charitable organisations which does not give rise to a claim under s 100: Griffiths v Kerkemeyer (1977) 139 CLR 161 per Gibbs CJ at 169-170. The plaintiff has not established the need for future treatment or other damages relating to the future. There was evidence of being placed on Risperidone following the suicide attempt but in final submissions, the plaintiff did not submit that the suicide attempt was a result of any breach of duty on the part of the defendant because it was too early in chronology to have been a matter that could have been avoided by action on the part of the defendant. I would not have made any separate award for a breach of the tenancy agreement.

Assessment of damages - Sullivan

Dr John Saboisky was engaged by the defendant to provide a report in relation to Mr Sullivan. A report of Dr Saboisky dated 28 July 2011 provided his opinion as to what injury condition or disability was caused by the behaviour of John while he was living next to Mr Sullivan. He recorded that Mr Sullivan had a history of having to deal with John as a neighbour, becoming increasingly frustrated and angry with police and ACT Housing and becoming obsessed with the issue. Dr Saboisky said “I think the incidents described are cumulative incidents and led to the adjustment disorder with mixed features”. He said he would benefit from ten sessions of psychological treatment, the suspension of his marijuana use and judicious use of medication which, because Mr Sullivan was a recipient of benefits from Centrelink would cost him around five dollars per month.

Dr William Knox was engaged by the plaintiff. He provided a report dated 7 April 2011. In that report he said:

Mr Sullivan developed a moderately severe degree of mood disorder, likely best diagnosed as Adjustment Disorder with Mixed Anxiety and Depressed Mood. His symptoms were more severe for a period of approximately 6 months during mid to late 2009.

He said that he suffered ongoing clinical impairment even after John left the property. He said that Mr Sullivan continued to suffer with residual mood disorder by way of his Adjustment Disorder although his condition was broadly stable. He recommended counselling with a clinical psychologist at a total cost of approximately $1000.

I would have assessed general damages at $30,000, all for the past. I would have allowed interest on the past component at 4% since November 2009 being the middle of the relevant period. I would have allowed $16,926 for past economic loss for six months plus superannuation of $1861.86 as particularised in the statement of particulars. This was because I accept that by mid-2009 Mr Sullivan was so affected by his interactions with John and so sleep deprived that he was unable to continue working as a bus driver for the Baptist Church. I would have allowed $902.85 for past out of pocket loss. There was some non-specific evidence of Mr Sullivan obtaining domestic assistance from his daughter. I would allow the sum of $1,000 in relation to this assistance. Whether or not Mr Sullivan died prior to judgment I would not have awarded any damages for the future.

I would not have made any separate award for breach of the tenancy agreement.

Assessment of Damages - Kilby

Mr Kilby had a very significant motor vehicle accident on 14 March 2004. He was walking in Dubbo when knocked down by a reversing taxi. He was dragged by the car for some distance and received an injury to his right hip, his neck and his head. He has continued to suffer from chronic left sided neuralgic pain.

He attended the emergency department at The Canberra Hospital on 4 November 2008 stating that he had injured his right elbow and left ankle in a fall about three weeks previously. He complained of twisting his left ankle and hitting his right elbow on a stair. His right elbow was tender and he was unable to fully extend it.

A report of Dr GN Sukumar dated 23 April 2009 was tendered by the plaintiff. That report disclosed that Mr Kilby had consulted the doctor in December 2008 complaining about the aggravation of neck and left-sided head pains since 14 October 2008 when he had fallen down steps at his flat slipping on wet pasta on the floor. He complained of persistent left-sided headaches and that his right elbow was tender and painful with restrictions on movement. He also complained of his left ankle being tender with a reduced range of movement. Dr Sukumar diagnosed an aggravation of his pre-existing cervical spondylitic disease in his neck as well as soft tissue injury to his right elbow and left ankle. A report of Dr P Endrey-Walder dated 5 February 2011 was also tendered. Based on the description of swelling at the tip of the elbow the doctor said he was likely to have suffered traumatic olecranon bursitis and that he remained with symptoms of traumatic ulnar nerve neuropathy. He suggested nerve conduction studies to confirm his provisional diagnosis he also said he remained with some symptoms at the left ankle where there was demonstrable evidence of a restriction in the range of movement secondary to ligament strain, partial tear and subsequent scarring. Dr Colin Andrews reported on the plaintiff on 10 May 2011. He was investigated with a CT SPECT of his cervical spine which revealed no abnormality. Nerve conduction studies showed no problems with his ulnar nerves. The doctor therefore considered that the incident had not resulted in any significant injury to the neck or to his ulnar nerve.

I would have assessed general damages at $5,000, all for the past. Having regard to my doubts as to the reliability of the plaintiff’s evidence, I am not satisfied that an increase in neck pain was due to the incident or anything other than minor discomfort in his ankle. I would have awarded interest at 4% since December 2008. The evidence does not establish a need for gratuitous care that was not provided by a charitable organisation or the likelihood of any loss in the future.

I would not have made any separate award for breach of the tenancy agreement.

Conclusion

The plaintiffs have failed to establish their case against the defendant. Therefore in each proceeding there will be judgment for the defendant.
I certify that the preceding two hundred and twenty-eight (228) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 9 September 2013

Counsel for the plaintiff:  Mr D I Richards
Solicitors for the plaintiff:  Blumers Personal Injury Lawyers
Counsel for the defendant:  Mr J Pappas
Solicitors for the defendant:  ACT Government Solicitor
Date of hearing:  17, 18, 19, 20, 24 June 2013
Date of judgment:  9 September 2013