Saunders v Department of Housing and Works - [2009] WADC 133

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SAUNDERS -v- DEPARTMENT OF HOUSING AND WORKS [2009] WADC 133

CORAM: DAVIS DCJ

HEARD: 19 AUGUST 2009

DELIVERED : Delivered Extemporaneously on 19 AUGUST 2009 typed from tape and edited by the Judge

PUBLISHED : 27 AUGUST 2009

FILE NO/S: CIV 866 of 2009

BETWEEN: WAYNE ANTHONY SAUNDERS
Plaintiff
AND
DEPARTMENT OF HOUSING AND WORKS
Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim and dismiss action - Whether any reasonable cause of action - Whether defendant under any duty of care to plaintiff

Legislation:

Housing Act 1980 (WA)

Result:

Application granted
Statement of claim struck out and plaintiff's action dismissed

Representation:

Counsel:

Plaintiff: In person
Defendant: Ms L White

Solicitors:

Plaintiff: Not applicable
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Pyrenees Shire Council v Day (1998) 192 CLR 330
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
State of New South Wales v Paige (2002) 60 NSWLR 371
Sullivan v Moody (2001) 207 CLR 562
Tobin v Dodd [2004] WASCA 288

DAVIS DCJ: On 20 March 2009 the plaintiff, who is self‑represented issued a writ against the defendant. That was a generally indorsed writ. The indorsement read "Damages $250,000 being for breaches of Department's own guidelines and harassment". After being ordered to file a statement of claim, on 6 May 2009 the plaintiff filed a statement of claim which read as follows:
"The plaintiff has been a tenant through the Department Housing and Works since 2003. Living at units in West Australia the Department have declined priority transfers stating they do not transfer due to harass (sic) and have ignored medical evidence presented to them. The plaintiff seeks damages for emotional stress, compound PTSD, future losses."
It is dated and signed by the plaintiff on 4 May 2009. I understand "PTSD" to stand for post‑traumatic stress disorder which the plaintiff has mentioned to me today was a pre‑existing medical condition at this time.
The defendant by summons dated 9 June 2009 has brought an application to strike out the plaintiff's statement of claim and dismiss the action.
On the first return date of the defendant's application on 2 July 2009 the Principal Registrar ordered that the application be listed for a special appointment before a Judge and that by 30 July 2009 the plaintiff file and serve an affidavit setting out three things:
(a)The conduct of the defendant on which the claim is based;
(b)The injuries which the plaintiff says he has suffered as a result of this conduct; and
(c)The financial loss which the plaintiff says he has suffered as a result.
The plaintiff has filed a document entitled "Affidavit" but it is not sworn. The affidavit attaches some copy documents. Given the plaintiff's self‑represented status and after hearing from the defendant's counsel I have determined to treat that document as a submission setting out the plaintiff's claim.
As the plaintiff is in person, I need to examine with some care the claim which the plaintiff wishes to litigate and determine whether, notwithstanding a poorly expressed or unstructured statement of claim, there are facts alleged which, if proved, would entitle the plaintiff to some relief. The Court must be careful to examine what is put to it by a party in person to ensure that party has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done. Once the facts are established or are ascertainable, it is for the Court to apply the law to determine what, if any, relief a plaintiff is entitled to or how otherwise the litigation should be determined: Tobin v Dodd [2004] WASCA 288 at [13] ‑ [18].
With those principles in mind I turn now to look at what the plaintiff here wishes to litigate.
What is set out in the document entitled Affidavit is:
"The plaintiff has been with the Department since 2003. His first housing allotment was at Light Street, Shoalwater after break‑up with Deb Theunissen, his de facto at the time. The plaintiff had applied for housing in 2002. After leaving this unit due to domestic violence, 2003, through Deb Theunissen, the plaintiff left the State due to violence involving Deb Theunissen's ex‑partner.
The plaintiff returned in 2003, applied after contacting local member (MLA), Norm Marlborough, that he was entitled to housing. The plaintiff's ex had a VRO on him through the Rockingham Courts."
A VRO is a violence restraining order.
"She had given a falsely misleading statement against him in regards to a home invasion at Safety Bay to the police. After receiving the offer of housing at Smith Street, the plaintiff discovered document 19."
I pause here to refer to Document 19, which is a receipt to Deborah Theunissen for a sum of $43.49 for what is stated to be the balance of a debt. It is, however, having regard to the document itself, a receipt not from the defendant in this case, but from the Commonwealth of Australia.
"The Department had on numerous occasions denied the plaintiff a transfer on grounds they do not transfer due to harassment. They ignored supporting medical evidence of exuberated (sic) medical condition. The plaintiff claims damages. The Department has never corresponded after these attacks of false allegations."
By "exuberated" the plaintiff means "exacerbated".
The Affidavit document goes on to set out the plaintiff's alleged injuries, which includes PTSD, nervous breakdown, assaults and other injuries, and his financial losses.
There is attached to this document some documents or excerpts of documents. These are:
1.What is stated to be the policy of the defendant, setting out the criteria for priority assistance. The criteria is as follows:
"An applicant for priority assistance must be eligible for assistance in relation to all Homeswest eligibility criteria and have an urgent housing need and no other viable housing options but public rental housing.
An applicant with a previous tenancy history, including debts, property standards and antisocial behaviour, are to have their application referred to the Regional Manager, Assistant Regional Manager, Manager Rental Service, Manager Customer Service or Area Manager for a decision under the Discretionary Decision‑Making Policy."
After this, there are some guidelines and practices where there are examples, including a medical condition, domestic violence and harassment.
2.Documents relating to violence restraining orders. There are two to which the plaintiff has been a respondent, in applications brought by Ms Nasiri and a Ms Brock, and a third where the plaintiff was the applicant against a Debra Anne Theunissen. That third violence restraining order application was resolved by an undertaking signed by Ms Theunissen.
3.Documents from the defendant, including correspondence from the defendant to the plaintiff. Documents of particular relevance are a letter from the defendant to the plaintiff dated 13 January 2006 with an attached decision review form, a Homeswest decision review form dated 8 August 2006 and letters dated 14 May 2007, 20 August 2007 and 23 October 2007.
4.A letter from the Corruption and Crime Commission to the plaintiff dated 18 September 2007.
5.Documents from Centrelink (being a medical certificate) Fremantle Hospital Department of Emergency Medicine and some Job Capacity Assessment reports from the Australian Government which set out the plaintiff's medical conditions.
6.A document entitled "Conduct" in which the plaintiff sets out particular incidents which he has had with other tenants in Homeswest accommodation and where he states as follows:
"The Department has never followed their three‑tier resolution process and harassed the plaintiff, by offering him a transfer, through recovery officers from Mirrabooka, after receiving out of court settlement for injury 2006".
As I understand the plaintiff's claim, both from these documents and from what he has stated during the hearing today, it is that because of problems with his neighbours, including some violence from his neighbours, and his existing medical conditions, he claims he was entitled to priority assistance from the defendant to transfer him to other accommodation. He claims the defendant breached its guidelines when refusing to transfer him to another Homeswest home, and thereby harassed him and caused him damage and injury.
Relevant to this claim are the defendant's documents, including the defendant's correspondence to the plaintiff which I have mentioned. The letter dated 13 January 2006 advised Mr Saunders that his request for a priority transfer had been declined, that the decision had been reviewed and found to be in line with Homeswest policy. The attached decision review form reads:
"The applicant does not meet the requirement for a priority transfer under the Department's priority transfer section 20 as an urgent need to relocate has not been established. Should the behaviour of neighbours be a concern to the applicant, then these matters need to be addressed with the Accommodation Manager who needs to investigate and take appropriate action where complaints are substantiated."
There are some more detailed reasons set out in that document.
The Homeswest decision review form dated 8 August 2006 makes a recommendation that a priority transfer be declined as the plaintiff's circumstances do not meet the transfer criteria. It states:
"The Department does not transfer tenants due to harassment or antisocial behaviour of their neighbours. When incidents of antisocial behaviour are substantiated, the Department will investigate the complaint and take appropriate action under the Residential Tenancies Act. Applicant must discuss his concerns of harassment with his Accommodation Manager."
By the letter from the defendant to the plaintiff dated 14 May 2007 the defendant confirmed that the plaintiff had accepted the allocation of a property in Guildford. It seems there was a problem with that accommodation which the plaintiff today confirmed. On 20 August 2007 the defendant's Regional Manager of the North Metropolitan Region wrote to the plaintiff to confirm that, following a meeting that day with him, his transfer application would be relisted for the north central zone and an offer of accommodation made as soon as possible. It seems that the plaintiff had requested a particular property in Milford way Nollamara to be allocated to him, but it had already been offered and accepted by someone else. The next letter from the defendant to the plaintiff dated 23 October 2007 stated that the plaintiff had recently declined an offer of accommodation at Milford Way, Nollamara.
Another document relevant to a consideration of the plaintiff's claim is the letter of 18 September 2007 from the Corruption and Crime Commission. This letter dismissed a complaint from the plaintiff that his former partner Ms Theunissen had used a contact in the Department of Housing and Works to influence the properties which had been allocated to the plaintiff to rent. The Commission stated it had assessed the issues in the plaintiff's complaint. It was aware that the Department of Housing and Works has written policies which it must follow when allocating properties for rental. The letter went on to state that housing is allocated according to eligibility and need, the applicant's position on the waiting list and their zone of preference. The Commission advised the plaintiff that its assessment was that the examples that the plaintiff had provided to support the allegations against the Department did not indicate that the Department had breached its policies for allocating properties. There was, the Commission said, no evidence to support the plaintiff's belief that the Department had deliberately chosen to allocate rental properties to him that would cause him to find coincidences between street names and location and incidents or people from his past.
Taking the plaintiff's case at its highest I need to consider whether the plaintiff has an arguable cause of action against the defendant which could be pleaded, or if the plaintiff's present pleadings could be amended to plead a cause or causes of action.
Given the nature of the relief claimed, the basis for it and that damages are claimed, the plaintiff would need to make good a cause of action in tort. If the plaintiff was to re‑plead his action as one of breach in negligence, this would require him to show that the defendant owed him a duty of care, had breached its duty and he suffered damage as a result. Where, as in this case, the defendant is a statutory authority, negligence might be established by showing that the defendant was under a statutory duty to exercise powers in a certain way in a certain situation.
The defendant allocates housing for rental to eligible persons through the State Housing Authority, known as Homeswest, pursuant to the Housing Act 1980 (WA). The relevant sections setting out the powers relating to housing rental are contained in s 25 to s 30. Relevantly s 25 provides for the power to lease "as the Authority thinks fit".
Having regard to the terms of the Housing Act and in the circumstances which I have outlined, I consider that the defendant did not owe the plaintiff any duty of care. What the plaintiff complains of is a breach of the defendant's policy. The policy which the plaintiff has produced and the other documents which I have discussed all make it clear that any decision on an application for priority assistance and transfer from one Homeswest property to another is discretionary.
An exercise of an administrative policy which involves the exercise of a discretion is not enough to establish any duty of care on the part of a statutory authority: see State of New South Wales v Paige (2002) 60 NSWLR 371 at [172] – [177]; Sullivan v Moody (2001) 207 CLR 562 at [57] to [60]; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [27]–[44] and at [84]–[87].
It is pertinent to quote what was stated by The Chief Justice of the High Court, Brennan CJ in Pyrenees ShireCouncil v Day (1998) 192 CLR 330 at 346 and which he affirmed in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [18]:
"In Pyrenees Shire Council v Day, I expressed my opinion that no duty to exercise a statutory power and to exercise it with care can be imposed by the common law on the repository of the power when the statute operating in the particular circumstances, leaves the repository with a discretion whether to exercise it or not. If it were otherwise, the common law would impose on the repository a duty to exercise the power when the legislature had intended the repository to decide for itself whether and in what manner the power should be exercised."
Brennan CJ went on to say that one reason why a court cannot hold a public authority liable in negligence for failing to take some action when the taking of the action is a matter of "policy" is that policy connotes a discretion to be exercised by the public authority, not by the court.
In this case it is in my view it would also be inconsistent with the proper and effective discharge of the defendant's responsibilities in the allocation of housing rentals if it were to be subjected to a legal duty, breach of which would sound in damages, in circumstances where it has a discretion when making a decision as to the allocation of that housing. The defendant here had a discretion when considering the plaintiff's request for transfer of the housing which had previously been allocated to him. The defendant could not be held liable in negligence for failing to take some action when whether to take the action or not is a matter of policy.
I consider that there is no conduct by the defendant which, if proved, would entitle the plaintiff to any relief.
In my view the current pleading discloses no reasonable cause of action and an amendment to this would not cure what I consider to be a fundamental problem with the plaintiff's claim.
I will make orders in accordance with the defendant's application to strike out the plaintiff's statement of claim and dismiss the plaintiff's action, with the plaintiff to pay the defendant's costs of the action, including this application and any reserved costs, to be taxed.