Jared Sullivan v ACT Housing
[2013] ACTSC 57
•5 April 2013
JARED SULLIVAN v ACT HOUSING
[2013] ACTSC 57 (5 April 2013)
PRACTICE AND PROCEDURE – originating application – action by tenant against landlord – claim for mandatory injunctions and recovery of money – no cause of action – no jurisdiction in court to order relief sought – originating application struck out
Housing Assistance Act 2007 (ACT)
Residential Tenancies Act 1997 (ACT)
No. SC 352 of 2012
Judge: Master Harper
Supreme Court of the ACT
Date: 5 April 2013
IN THE SUPREME COURT OF THE )
) No. SC 352 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: JARED SULLIVAN
Plaintiff
AND:ACT HOUSING
Defendant
ORDER
Judge: Master Harper
Date: 5 April 2013
Place: Canberra
THE COURT ORDERS THAT:
the originating application be struck out.
On 25 October 2012 the plaintiff, who is not legally represented, filed an originating application seeking a number of orders against the defendant, ACT Housing. The matter was listed before me on 30 November 2012. It is not apparent how the matter came to be listed. On that date the plaintiff appeared in person. Ms Bayer announced an appearance for the Commissioner for Social Housing. She told me that her instructions were that there was a jurisdictional issue, in that the matters sought to be agitated by the plaintiff had been determined (at first instance by Senior Member Lennard, and on appeal by Appeal President Stefaniak) in the ACT Civil and Administrative Tribunal (ACAT). Her submission was that the issues had been finally determined in the Tribunal, and that any challenge to them should have been brought by way of appeal to this Court rather than by the institution of a proceeding by originating application.
The orders sought in the originating application were orders requiring ACT Housing to perform a number of acts (for example, to remove a number of signs, to remove certain painted lines and cement barriers in a car park, and to install a new sink in the plaintiff’s unit) and orders for the payment by the defendant to the plaintiff of various amounts of money having a total of $46,000.00.
It is evident that the plaintiff is the tenant of a social housing unit at Oaks Estate. He has been in dispute with the Commissioner for some time, about a number of matters relating to his tenancy of the premises. He brought an application before the Tribunal which was dismissed by Senior Member Lennard in December 2011. An appeal from that decision came before Appeal President Stefaniak during the latter part of 2012. Mr Stefaniak seems to have made an attempt to resolve some of the areas of the dispute, but eventually to have dismissed the appeal.
The Housing Assistance Act 2007 governs the provision of public housing in the Australian Capital Territory. Section 9 of the Act establishes the office of Commissioner of Social Housing as a statutory corporation, and the defendant should have been sued in that name. ACT Housing is not a legal entity. If that were the only shortcoming with the proceeding, it would be readily rectified.
However, as I pointed out to the plaintiff on 30 November 2012, it did not appear to me that this Court had jurisdiction to make the orders he was seeking. The orders seeking the payment of money do not disclose any cause of action known to the law. The orders seeking that the defendant perform specified acts are in the nature of mandatory injunctions and are not orders the Court would make under the general law, in the absence of some statutory conferral of jurisdiction.
I offered the plaintiff the opportunity to obtain legal advice about the application, and offered to stand it over while he did so, but he declined that opportunity, informing me that he had had legal advice, had read the Residential Tenancies Act 1997, and that his understanding was that the Court had jurisdiction.
Section 76 of the Residential Tenancies Act 1997 confers jurisdiction on ACAT to hear and decide matters arising under the Act, with the exception of the making of orders for payment of an amount of more than $25,000.00. Section 77 provides for a saving of court jurisdiction for claims for more than $10,000.00. A money claimant may make any other claim related to the tenancy dispute in a competent court, which may exercise the powers of ACAT under the Act.
I accept that if the plaintiff were able to plead a cause of action against the Commissioner claiming an amount of more than $10,000.00 he could bring the claim in this Court (although it would be expected that the Court would remit the action to the Magistrates Court if the amount was within the civil jurisdiction of that court).
However, on the application presently before the Court, the plaintiff has not pleaded a cause of action capable of entitling him to the relief he seeks.
The originating application must be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate: Katie van den Bos
Date: 5 April 2013
Plaintiff: In person
Counsel for the defendant: Ms M Bayer
Solicitor for the defendant: ACT Government Solicitor
Date of hearing: 30 November 2012
Date of decision: 5 April 2013
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