Mark Andrew Holmes v Commissioner for Social Housing in
[2010] ACAT 33
•13 May 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MARK ANDREW HOLMES v COMMISSIONER FOR SOCIAL HOUSING IN
THE ACT (Residential Tenancies) [2010] ACAT 33
RT 383 of 2010
Catchwords: INTERIM DECISIONS – maintenance of status quo ante
Legislation:Housing Assistance Public Rental Housing Assistance Program 2008
Human Rights Act 2004 (ACT)
Case Law:Magna Alloys & Research Pty Ltd v. Coffey and others (1981) V.R. 23
Re Richard James Squires v Keith Stephenson, Glen Holland, Peter Jacobs, Warren Smith, Rene Herbert, David Barwick, Lew Jackson, David Lomas, Charlie Lucas, Garry Morris, Paul Murphy, Michael Sheehan, Christopher Tregeagle, Tony Baker, Malcolm Miller [1981] FCA 91
Skinner & Skinner [2007] FamCA 831
Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd (1979) V.R. 107
Tribunal: Mr A Morris, Registrar
Date of Orders: 13 May 2010
Date of Reasons for Decision: 19 May 2010
IN THE AUSTRALIN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) RT 383 of 2010
BETWEEN: MARK ANDREW HOLMES
Applicant
AND: COMMISSIONER FOR SOCIAL
HOUSING IN THE ACT
Respondent
Tribunal:Mr A Morris, Registrar
Date: 13 May 2010
ORDER
Noting that it is the opinion of the Tribunal that there are matters of fact and law arising in this matter that require decision, and noting further that the Applicant through his solicitor undertakes:
(a) That no goods in the premises will be removed or disposed of in the interim, and
(b) That the Applicant despite previous other statements to the contrary alleges that he had a relationship with the deceased tenant, and
(c) There being a need to preserve the status quo ante whilst the ACT Civil and Administrative Tribunal determines the matter.
It is ordered that the Applicant be given keys to the property and a right to reside in or occupy the property for rent or a fee payable to the Respondent on terms no less favourable than as set out in the original lease.
................................................
Mr A Morris
Registrar
REASONS FOR DECISION
In this matter, an application was lodged, but at the time of the interim hearing, not yet processed and filed.
The matter came before me on the question of interim relief for the applicant who alleged that the premises were his home up until to the death of the lessee.
There are two sets of facts in this matter – those in dispute and those not in dispute. The facts not in dispute are:
3.1.The Respondent is the lessor of a 2 bedroom unit at 43 Cygnet Crescent Red Hill ACT.
3.2.The property was leased to Annette Marion Smith on a periodic tenancy.
3.3.Ms Smith was the sole tenant on the lease.
3.4.Ms Smith died on 17th April 2010.
3.5.Mr Mark Holmes resided in the unit for at least some of the time before and after Ms Smith’s death.
3.6.That Mr Holmes and Ms Smith conspired over a significant period of time to tell untruths and make misleading statements to both the Commissioner for Social Housing ACT and Centrelink to increase their benefits.
3.7.On 6 May 2010 the Respondent caused an unsigned, undated notice purporting to issue from a “Cara Cannon” to be placed on the wire door of the unit requiring the “unauthorised occupant” to vacate the premises by 7 May 2010.
Upon request by Mr Emerson-Elliot for the Applicant, I listed this as an interim application for 13th May 2010 and dealt with it on an interim basis on that day.
Mr Adkins for the Commissioner has requested reasons for my interim decision.
Relevant matters which are in evidence, but are in dispute are:
6.1.That Mr Holmes and Ms Smith were in fact a defacto couple.
6.2.That Mr Holmes resided most of the time at the unit.
6.3.That Mr Holmes should be regarded as the next-of-kin to Ms Smith.
I heard material related to the matter from both sides in an informal setting. A number of issues appear to need deciding, including:
7.1.What is the status of a person upon the death of the Lessor, who has actively misled the Commissioner as to his status during the lease?
7.2.What is the meaning at law of a person’s “home” and its relevance at law to the responsibilities of the lessor?
7.3.Are there Human Rights issues under the Human Rights Act 2004 (ACT) that arise and need consideration?
7.4.What is the appropriate action to be taken in interim proceedings pending a hearing of the substantive matter?
The only issue that I found it necessary to determine (on an interlocutory basis) was the last of these – namely, the appropriate decision to make pending investigation of the substantive matters.
Evidence adduced by Mr Emerson-Elliot in support of Mr Holmes’ extant relationship with Ms Smith was the Death Notice in the Canberra Times, which, although placed by the family of the deceased, clearly indicated that Mr Holmes was regarded as a member of the family.
10. Mr Holmes’ evidence was compelling in that whatever he had told the Commissioner and others during the lifetime of the lessor, the parties had had a real relationship. I was particularly swayed in this regard by the fact that notwithstanding that the next-of-kin of the deceased had been through her possessions, it was Mr Holmes who appeared to have her ashes for disposal.
11. In its submission, Mr Adkins for the Commissioner made an impassioned request that Mr Holmes be evicted, on the basis that he is not in the queue for housing, and that by allowing him to remain in the house, I am thereby disadvantaging other applicants for housing who have behaved in a more appropriate manner vis-à-vis their applications.
12. Mr Emerson-Elliot for Mr Holmes took the view that the Commissioner had trampled over several of the applicant’s rights including but not limited to his human rights, arbitrary interference and breaches of the Housing Assistance Public Rental Housing Assistance Program 2008.
13. After hearing Mr Emerson-Elliot, I could not be satisfied that the issue was as simple as the Commissioner sought to suggest. I feel that there are issues of law that need to be explored to ensure that a just and legally correct outcome is achieved. Accordingly, I felt that the matter should be referred to a full hearing and that the facts and the law should be considered.
14. I take the view – supported by precedent – that where there are matters of fact and law to be determined, it is necessary to maintain the status quo ante of the parties.
15. A clear statement of this concept (other than in Family Court cases, where that concept is a staple provision of decision making – see Skinner & Skinner [2007] FamCA 831 (3 August 2007) for a recent mention of that principle), is the case of Re Richard James Squires v Keith Stephenson, Glen Holland, Peter Jacobs, Warren Smith, Rene Herbert, David Barwick, Lew Jackson, David Lomas, Charlie Lucas, Garry Morris, Paul Murphy, Michael Sheehan, Christopher Tregeagle, Tony Baker, Malcolm Miller, [1981] FCA 91 (7 July 1981). An issue in that matter concerned the danger to the parties’ positions of interim orders changing their possible outcomes.
16. In that case, it was said (Keely J, in the Victorian Registry of the Federal Court):
“... in my opinion it is not desirable for the court to seek to compare the various considerations relied upon by counsel with other considerations referred to by a court in an earlier case in granting or refusing to grant interim orders. As Lush J. said in Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd (1979) V.R. 107 at p.110:
"The weight to be given to the various considerations shown by the authorities to be relevant will vary from case to case. . . . The authorities refer to the use of the injunction for the purpose of maintaining the status quo or maintaining a state of affairs which is on the balance of convenience appropriate to be maintained until the trial. They refer to avoiding irreparable harm to the plaintiff. . . . There will be other situations in which though the plaintiff's proof of his rights or the infringement of them is not strong, an injunction may be granted because to withhold it would do the plaintiff irreparable harm, while to grant it would not greatly injure the defendant. The possible variety of situations is unlimited."
17. This view was also taken by the Full Court of the Victorian Supreme Court in Magna Alloys & Research Pty Ltd v. Coffey and others (1981) V.R. 23 at p.28 where the statement was cited “as a correct and useful statement of law”.
18. In this case, if I were to accede to the Commissioner’s request, there is ample suggestion that the property would be reallocated. Indeed, it was Mr Adkins’ stated position that there was no earthly reason why it should not be, and that the Commissioner did not acknowledge any right of Mr Holmes – real or potential – to the property, that Mr Holmes asserted.
19. If that happened, and the substantive hearing found that the Commissioner’s position was not wholly or partly correct, there would be no means of redressing Mr Holmes’ position.
20. In the alternative, a delay of 2 or 3 weeks in reletting the property should Mr Holmes be unsuccessful is not going to harm anybody’s interests, and is accordingly the preferred result.
…………………………………..
Mr Athol Morris
Registrar
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 383 of 2010
APPLICANT: MARK ANDREW HOLMES
RESPONDENT: COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
COUNSEL APPEARING: N/A
SOLICITORS: APPLICANT: MR EMERSON-ELLIOTT
RESPONDENT:
TRIBUNAL MEMBER/S: Mr A Morris, Registrar
DATE/S OF HEARING: 13 May 2010 PLACE: CANBERRA
DATE/S OF DECISION: 19 MAY 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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