Marsh v Commissioner for Social Housing
[2018] ACTSC 280
•17 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Marsh v Commissioner for Social Housing |
Citation: | [2018] ACTSC 280 |
Hearing Date: | 10 August, 17 October 2018 |
DecisionDate: | 17 October 2018 |
Before: | Mossop J |
Decision: | The application for leave to appeal against orders 1-3 made by the ACT Civil and Administrative Tribunal on 4 May 2018 is dismissed. |
Catchwords: | APPEAL – DECISION BY AN ADMINISTRATIVE TRIBUNAL – ACT Civil and Administrative Tribunal – Application for leave to appeal from interlocutory orders made by Appeal Tribunal – whether arguable basis for challenge to orders – whether appeal would lack utility following execution of termination and possession order – extent of Tribunal’s obligation to give reasons – leave to appeal refused |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 59, 60, 60(4), 79, 83, 83(2) Court Procedures Rules 2006 (ACT), r 5052 Residential Tenancies Act 1997 (ACT), s 40(1) |
Parties: | Luke Marsh (Applicant) Commissioner for Social Housing (Respondent) |
Representation: | Counsel Self-represented (Applicant) K Musgrove (Respondent) |
| Solicitors Self-represented (Applicant) ACT Government Solicitor (Respondent) | |
File Number: | SCA 21 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Civil and Administrative Tribunal Before: Presidential Member Daniel Date of Decision: 4 May 2018 Case Title: Marsh v Commissioner for Social Housing Tribunal File Number: AA 17/2018 |
MOSSOP J:
Introduction
This is an application for leave to appeal from a decision of the Australian Capital Territory (ACT) Civil and Administrative Tribunal (ACAT). On 11 May 2018, Burns J ordered that the application be taken to be an application for leave to appeal against certain orders made by a presidential member of the ACAT on 4 May 2018.
In order to understand the orders to which the application relates it is necessary to provide some background.
Luke Marsh was a tenant of the Commissioner for Social Housing (the Commissioner) in a housing complex in Turner, known as the Northbourne flats. The Commissioner intended to cease using the complex for the provision of public housing. Mr Marsh was the last remaining tenant in that complex. He had a one-bedroom unit within the complex. On at least five occasions he had been offered alternative accommodation in two-bedroom units by the Commissioner. He had refused to accept that alternative accommodation because he wished to live in a three‑bedroom free standing house.
The Commissioner served a Notice to Vacate under the provisions of the Residential Tenancies Act 1997 (ACT) on 7 February 2018. Whether that notice was properly served may be an issue in dispute but that does not matter for present purposes. Mr Marsh did not vacate the premises in accordance with that notice. On 6 April 2018, the Commissioner filed an application in the ACAT seeking a termination and possession order under the Residential Tenancies Act 1997.
That application was heard on 19 April 2018 and a senior member of the ACAT made an order terminating the tenancy on that day. The ACAT ordered that its termination and possession order had effect as a warrant for eviction and authorised officers of the Australian Federal Police (AFP) to enforce the order. Such officers were required to give two days notice of any eviction in accordance with s 40(1) of the Residential Tenancies Act 1997.
On 20 April 2018, Mr Marsh made an application to the ACAT appealing that decision and seeking a stay of the order until the appeal was finalised. An internal appeal from a termination decision is permitted under s 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).
On 27 April 2018, the application for a stay was heard by Presidential Member Daniel. The application was refused, the relevant order being:
1.[The] application for an order … staying the termination and possession order made on 19 April 2018, and requiring the respondent to provide the appellant with three bedroom accommodation, is refused and dismissed.
The presidential member also made directions relating to the preparation of the internal appeal and ordered that it was to proceed as a review of the decision on 19 April 2018 rather than as a hearing de novo.
On 2 May 2018, notice was given to Mr Marsh of an intended eviction time of 2pm on 7 May 2018. This prompted him to make an application to the ACAT on 3 May 2018 for interim orders.
On 4 May 2018, Presidential Member Daniel refused the application and made the following orders:
1.The application for a stay of the orders of 27 April 2018 is dismissed.
2.The further application for a stay of the orders of 19 April 2018 is dismissed.
3.The application for the appeal to be removed to the Supreme Court is dismissed.
4.A hearing listed on 7 May 2018 is vacated.
This prompted Mr Marsh to make an ex parte application to the Supreme Court that afternoon. Burns J stayed the termination and possession order until Wednesday, 9 May 2018, required the documents filed in Court to be served on the Commissioner and adjourned the proceedings until 9 May 2018.
The proceedings were heard again on 9 May 2018, on which date Burns J directed the Commissioner to file an affidavit setting out what had occurred in the ACAT. His Honour maintained the stay order until the matter was heard before him on 11 May 2018.
On 11 May 2018, his Honour directed that the proceedings be taken to be an application for leave to appeal against the first three of the orders made by Presidential Member Daniel on 4 May 2018 which are set out at [10] above. His Honour declined to continue the stay of the orders that he had previously made. He also made directions permitting the matter to be listed.
The matter was originally listed to be heard before a judge of the Court on 31 May 2018. On that date Mr Marsh sought an adjournment so that he could obtain legal representation. Notwithstanding the adjournment was opposed, it was granted and the matter was subsequently listed for hearing on Friday, 10 August 2018.
At the commencement of the hearing on 10 August 2018, Mr Marsh made a further application for an adjournment based upon his desire to obtain legal representation, his desire to obtain transcripts of proceedings before Burns J, his wish to subpoena mental health records relating to attempts to obtain new housing prior to the current eviction process and because an ex parte order had been made in the ACAT proceedings on 25 June 2018, preventing him from proceeding with the internal appeal until a litigation guardian or guardian for legal matters was appointed. I was not satisfied that there was a proper evidentiary basis for me to conclude that a litigation guardian was required to be appointed for the purposes of the present application. I ultimately granted an adjournment until after lunch so that Mr Marsh could obtain material related to his attempts to get legal representation. When the matter resumed, he provided evidence that showed that he had been given a very limited grant of legal aid to permit him to obtain some advice and investigation of his tenancy issues but that the grant had subsequently been terminated because of his failure to provide instructions. On the day of the hearing, he sought reconsideration of the termination but also made it clear that he did not wish to be represented by a Legal Aid solicitor as he thought that it was inappropriate that a government authority provide legal advice to him in relation to the conduct of another government authority. Although the prospects of him obtaining further legal assistance in those circumstances appeared to be low, I thought it was appropriate to accommodate the possibility that he may be able to obtain further assistance by not precluding the receipt of further submissions in relation to the matter. I therefore heard submissions on the application from Mr Marsh, to the extent that he was able to make submissions, and also from Ms Musgrave who appeared for the Commissioner. At the conclusion of those submissions, I directed that any further written submissions be made by Mr Marsh by 21 September 2018 and that each party have liberty to apply. No further submissions were made by Mr Marsh within the time permitted. However, he did have some communications with the registry on 21 September 2018 which may have been an attempt to exercise the liberty to apply. The matter was therefore relisted on 17 October 2018.
On 17 October 2018 Mr Marsh did not appear.
Competence of the application
Section 86 of the ACT Civil and Administrative Tribunal Act provides:
86 Appeals to Supreme Court
(1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from either—
(a) one of the following:
(i) a decision of the appeal tribunal;
(ii) if the appeal president dismissed the appeal under section 80—the original decision of the tribunal;
(iii) if the appeal president decides not to deal with the appeal under section 85—the original decision of the tribunal; or
(b) a decision of the tribunal in relation to a review of a decision under the Freedom of Information Act 2016.
…
(3) However, the appeal may be brought only with the Supreme Court’s leave.
The orders made by Presidential Member Daniel were made in the internal appeal proceedings. I proceed on the basis most favourable to the applicant, namely, that any decision, including interlocutory or procedural decisions, may be “a decision of the appeal tribunal” for the purposes of s 86(1)(a). Upon that assumption, the application for leave to appeal is an application that can be made in relation to the orders made on 4 May 2018.
Consideration
I will deal separately with each of the orders appealed from.
1. The application for a stay of the orders of 27 April 2018 is dismissed
As will be apparent from the above, of the orders on 27 April 2018, the only substantive order involved a refusal to stay the orders made on 19 April 2018 and require the Commissioner to provide Mr Marsh with three-bedroom accommodation. The application on 4 May 2018 was to stay that order. If that order was stayed, it would not have the effect of either staying the termination and possession order or compelling the provision of three-bedroom accommodation. As a consequence, even if the appellant was successful on this appeal in overturning the refusal to stay the order of 27 April 2018, that would not result in either a stay of the termination and possession order or requiring the Commissioner to provide three-bedroom accommodation.
The Tribunal recognised that issue. The reasons given by the Tribunal are apparent from the transcript of the proceedings:
If I stay my order dismissing the stay … It’s not going to make a stay happen is it?… So that’s not going to achieve what Mr Marsh wants me to achieve for him today … I’m not going to stay the orders of 27 April because they are the orders that set your appeal up to get heard as quickly as possible.
In light of what I have said above, this conclusion and the reasons for it are plainly correct.
So far as the other orders made on 27 April 2017 are concerned, they were procedural orders directed to the preparation of Mr Marsh of the internal appeal. Any stay of those orders would only tend to frustrate his own attempt to appeal from the decision of the Tribunal. There is no reason why this would be appropriate and hence no basis for a grant of leave in relation to those procedural orders.
Leave to appeal should not be granted in relation to this order.
2. The further application for a stay of the orders of 19 April 2018 is dismissed
This is the more substantive order. If an appeal against this order was allowed, then the termination and possession order made on 19 April 2018 would either be stayed, pending determination of the internal appeal, or the matter remitted to the ACAT for determination.
On that issue, Presidential Member Daniel took into account what she had been told by Mr Marsh about the state of the premises. It must be remembered that only a short time earlier at the hearing on 27 April 2018 Mr Marsh had made an application for a stay of the orders which was refused. During the course of those proceedings, he made it clear that the building was uninhabitable. Further, during the course of the proceedings on 4 May 2018, he said that there was no running water in the building and that there had been a lot of water leaking through the building. The presidential member said, “when I decided the stay application on 27 April, I heard a lot from Mr Marsh which led me to consider the property is effectively uninhabitable …”.
The reasons given by the Tribunal were subject to some interruption by Mr Marsh but excluding those interruptions, the reasons of the Tribunal were as follows:
The decision I’m going to make is under section 53 of the ACAT Act.… I have to consider under that Act – and I will just read it out.… If I am satisfied that if an order for a stay was not made, you would be disadvantaged or suffer harm, in a sense, you absolutely will be disadvantaged and suffer harm … if this order for a stay is not made because you will be evicted from your property while waiting on an appeal against orders for eviction.… However, I can only make the order for a stay if I consider it appropriate to protect your position. Because of the wealth of the information you have given me about the condition of this property I am not satisfied that it would be appropriate to stay the eviction. I think – and you may have left the hearing before I said this last … It is unacceptable for Mr Marsh to be residing in premises of the condition he has described to me. I do not think … [it] appropriate to stay the orders such that he stays in there any longer. I understand that this may mean that by the time his appeal gets on he may be successful in his appeal. That will mean he has almost what they call a [pyrrhic] victory. They will have terminated his lease, but the property is now gone. In that situation … Mr Marsh will have to amend his application in relation to compensation and we discussed maybe that application will go to the Supreme Court because it will be more than 25,000.… So … For the Tribunal weighing up all of the considerations, because of the condition of the property and the situations Mr Marsh has described to me, I do not think it is appropriate to stay the eviction order. Indeed, if I could encourage anything, I would try to encourage Mr Marsh to be assisted to move into a more appropriate property ASAP.… I am not going to comment on the number of bedrooms but at least it’s not going to have leaky water and at least it will have electricity and …. So I will make an order dismissing your application for a stay, Mr Marsh. We won’t have to have a hearing on Monday now because I have considered your application and … You may well have the police on Monday because I’m refusing to make the stay of that eviction order.
No arguable error of fact or law is apparent in these reasons.
At the hearing before me, it was also agreed by the parties that the eviction of Mr Marsh from the property, who was the last occupant of the complex to leave, had in fact occurred on either 14 or 21 May 2018. As a consequence, it is now clear beyond doubt that any order granting a stay of the eviction would lack utility as that eviction has already occurred.
In those circumstances, any appeal would lack utility and leave should not be granted in relation to this order.
3. The application for the appeal to be removed to the Supreme Court is dismissed
Section 83(2) of the ACT Civil and Administrative Tribunal Act permits a party to apply to the ACAT to have a matter “removed” to the Supreme Court and the ACAT may do so “if it considers it appropriate”.
Mr Marsh’s application for interim orders, filed with the Tribunal on 3 May 2018, sought relevantly:
Application for supreme court move as ACAT don’t have judicial Authority to hear matters as conflict of interest.
The grounds for the application were stated as:
am appealing matters up untill matters of appeal are finalized nothing can take effect [sic].
Only limited reference was made to the issue of the removal of proceedings during the course of the hearing before the Tribunal. The only references are as follows:
PRESIDENTIAL MEMBER DANIEL: Okay. So the second thing I need to consider is whether the appeal should be heard actually by the Supreme Court and not by the---
MR MARSH: I reckon it should be heard by a Supreme Court myself. I would like it taken to a Supreme Court, please, Miss.
PRESIDENTIAL MEMBER DANIEL: That will be a decision that is made by---
MR MARSH: By who?
PRESIDENTIAL MEMBER DANIEL: By the appeal court.
MR MARSH: No, I make an application.
PRESIDENTIAL MEMBER DANIEL: I know. I’m going to---
MR MARSH: I don’t mind what you do.
PRESIDENTIAL MEMBER DANIEL: Okay.
MR MARSH: I’m (indistinct) by someone higher than you. You (indistinct)
PRESIDENTIAL MEMBER DANIEL: I will refuse that application. I will refuse that application. That’s something you can then---
None of the oral reasons given by the Tribunal later in the hearing appear to have related to the dismissal of the application for this order.
The obligation to give reasons of the Tribunal is a limited one. Section 60 of the ACT Civil and Administrative Tribunal Act provides:
60 Statement of reasons
(1) This section applies if—
(a) the tribunal makes an order on an application; and
(b)within 14 days after the day the order is made, a party asks for a statement of reasons for the making of the order.
(2) The tribunal must give the party a written statement of reasons or a transcript of an oral statement of reasons for the making of the order.
(3) The statement of reasons must set out—
(a) any principles of law relied on by the tribunal; and
(b)the way in which the tribunal applied the principles of law to the facts.
NoteFor what must be included in a statement of reasons, see the Legislation Act, s 179.
(4) This section does not apply to an order under section 53 (Interim orders) or an order of a procedural nature.
Examples—order of a procedural nature
adjournment, order for default judgement, order joining a party to a proceeding
Note 1The rules may prescribe a longer period for asking for order details (see s 25 (1) (e) and (2)).
Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Having regard to the whole of the section, it is apparent that this is intended to cover the full range of orders made by the Tribunal. In other words, the reference to orders on an application in s 60 is in general terms, but carved out from the scope of orders that can be made on an application are orders of the kind in s 60(4). Thus, the position is either that Mr Marsh only had an entitlement to reasons if he made a request for reasons or, alternatively, he did not have any entitlement to reasons if the orders are orders under s 53 or of a procedural nature. There is no evidence that he made an application for reasons in relation to the decision on 4 May 2018. Therefore, it is not necessary to determine whether or not the orders fall within the scope of s 60(4). The failure by the presidential member to expressly address the issue of removal of the appeal in her oral reasons does not disclose an arguable error on her part.
Further, if regard is had to the nature and subject matter of the appeal, the refusal to remove the appeal into the Supreme Court does not of itself indicate any miscarriage in the exercise of the discretion under s 83(2) of the ACT Civil and Administrative Tribunal Act.
Conclusion and order
For the reasons given above, the application for leave to appeal must be dismissed. The order of the Court is:
1. The application for leave to appeal against orders 1-3 made by the ACT Civil and Administrative Tribunal on 4 May 2018 is dismissed.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 17 October 2018 |
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