Von Stalheim v Director of Housing
[2025] TASFC 2
•3 March 2025
[2025] TASFC 2
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Von Stalheim v Director of Housing [2025] TASFC 2 |
| PARTIES: | VON STALHEIM, Kurt |
| v | |
| DIRECTOR OF HOUSING | |
| FILE NO: | 2151/2021 |
| DELIVERED ON: | 3 March 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 10 October 2022 |
| JUDGMENT OF: | Brett J, Jago J |
| CATCHWORDS: |
Procedure – State and territory courts: jurisdiction, powers and generally – Other matters – Associate judge or
master – Appeal against associate judge orders – Notice of appeal filed out of time – Application for
extension of time for appeal – Merits considered – No duty for respondent to facilitate sale of homes to
tenants like appellant – No private right of action created by Homes Act 1935 – No viable cause of actiondisclosed – Grounds of appeal devoid of merit – Futile exercise to extend time for grounds that must fail.
Aust Dig Procedure [1073]
Cases:
Allesch v Maunz [2000] HCA 40, 203 CLR 172
Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1
Elliott v Harris (1974) 8 SASR 458
Pridmore v Magenta Nominees Pty Ltd (1999) FCA 152, 161 ALR 458
Pyrenees Shire Council v Day (1998) HCA 3, 192 CLR 330
Sovar v Henry Lane Park Pty Ltd [1967] HCA 31, 116 CLR 397
State of Tasmania v MFC [2020] TASSC 23
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362
Legislation:
Supreme Court Civil Procedure Act 1932, s 14(a), s 191B
Supreme Court Rules 2000, r 259, r 680A(2), r 680A(3)(a)
Homes Act 1935, s 6A(3A), s 6B, s 15AA(1), s 17(1)
HomeBuilder Grants Act 2020, s 16, s 17, s 18
Acts Interpretation Act 1931, s 10, s 29
REPRESENTATION:
Counsel:
Appellant: Self-represented Respondent: E Lim
Solicitors:
Respondent: State Litigation Office
| Judgment Number: | [2025] TASFC 2 |
| Number of paragraphs: | 57 |
Serial No 2/2025
File No 2151/2021
KURT VON STALHEIM v DIRECTOR OF HOUSING
| REASONS FOR JUDGMENT | FULL COURT BRETT J JAGO J 3 March 2025 |
| Orders of the Court: |
1 Application dismissed.
Serial No 2/2025
File No: 2151/2021
KURT VON STALHEIM v DIRECTOR OF HOUSING
| REASONS FOR JUDGMENT | FULL COURT BRETT J 3 March 2025 |
1 On 3 March 2025, the Court made an order dismissing the application for extension of time. We indicated then that we would publish our reasons for doing so shortly after. These are those reasons. The substantive reasons are explained in the judgment of Jago J. I agree with her Honour. I will,
however, spend a few moments briefly outlining the procedural history of this matter.
2 The application for extension of time was heard on 10 October 2022, by a Full Court comprised of Jago and Geason JJ and myself. It is a matter of record now that, for reasons described by Martin AJ in Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1, Geason J did not sit as a judge after November 2023. His Honour resigned as a puisne judge of this Court on 18 November 2024. He has not written a judgment in this case.
3 It is clear that Jago J and I retain jurisdiction to determine this case, notwithstanding the resignation of Geason J. In Blue Derby Wild Inc v Forest Practices Authority, Martin AJ cited a decision of the Full Court of South Australia in Elliott v Harris (1974) 8 SASR 458, as authority for the proposition “that if a judge of an appellate court desists from hearing a case or dies during the hearing, but a quorum remains, ‘then that quorum can continue with the hearing and the decision of the members of the quorum will be the decision of the court’”. In this case, a quorum is constituted by two judges, by virtue of s 14(a) of the Supreme Court Civil Procedure Act 1932. This authority is directly applicable, given that Geason J is no longer a Judge, and does not have the authority to give judgment in this case.
4 Notwithstanding that we retain jurisdiction to determine the application, we conducted a directions hearing for the purpose of inviting submissions from the parties as to our proposed course, including whether any injustice arises from the fact that the original hearing was conducted by three judges but only two will now be delivering a decision. The respondent appeared at the directions hearing, and did not argue against the position explained above. The applicant did not appear. In any event, we are satisfied that no injustice arises. Jago J and I are in agreement and our decision would have prevailed in the event of any dissent by Geason J. There is no other proper basis for a claim of injustice. Further, given that our conclusion is that we retain jurisdiction to determine the matter, it is arguable that there is no proper basis in any event for us to decline to do so. This would require the reconstitution of the Full Court and the rehearing of the application. This, in our view, would be contrary to the interests of justice.
5 Accordingly, the Court made the order dismissing the application.
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KURT VON STALHEIM v DIRECTOR OF HOUSING
| REASONS FOR JUDGMENT | FULL COURT JAGO J 3 March 2025 |
6 The appellant appeals an order made by Holt AsJ on 2 August 2021 dismissing an action commenced by the appellant by writ dated 18 March 2021.
7 The notice of appeal was filed on 24 August 2021. Pursuant to r 680A(3)(a) of the Supreme Court Rules 2000 an appeal is to be instituted in the case of an appeal from a final judgment, within 21 days of or after the judgment was pronounced. Prima facie then, the appeal is out of time, although I note the appellant contends to the contrary. At the hearing of the appeal it was determined that this Court would defer making a decision as to the extension of time until it had heard and considered submissions relevant to the merit of the appeal generally. The respondent opposes any application to extend time on the basis that the notice of appeal must fail on its merits, but not otherwise. Consideration of the merits of the appeal generally will be the determinative factor in respect to the application to extend time.
The appellant's grounds of appeal
8 The appellant relies upon three grounds of appeal as follows:
1 Holt AsJ erred in law by misconceiving the nature of the Director of Housing's duties as a trustee for the Crown and the effect that this has on the duties imposed upon that office by the Homes Act 1935 and how this affects the interpretation of each and every provision contained therein;
2 Holt AsJ erred in determining the elements of the tort of breach of a statutory duty, when concluding that the tort of breach of a statutory duty must permit a private action, whilst the law states that the relevant statute must preclude a private action;
3 Holt AsJ erred in law when determining the issues relating to damages by failing to note that courts are required to assume, in the absence of other evidence, that public officers will lawfully apply the law as required by statute and that courts are not entitled to assume that public officers will misuse a public office contrary to the law, with the results that, absent other evidence to the contrary, I would have received the builders grant and hence my loss of this represents damages to me.
9 As I understand the appellant's contentions the grounds of appeal require a consideration of:
1 Whether s 6B of the Homes Act compelled the respondent to take actions – in particular provide the appellant with land and/or finance – such that the appellant would have been placed in a position whereby he could have satisfied the eligibility requirements for the Commonwealth HomeBuilder Grant and therefore be entitled to receive a benefit of $25,000, and whether the respondent's failure to do so amounted to a breach of a statutory duty;
2 Whether the Homes Act provides the appellant with a private right of action such that upon proof of a breach of statutory duty, such as alleged above, the appellant is entitled to claim monetary damages; and
3 Whether Holt AsJ erred by not presuming the appellant would have received the benefit of the HomeBuilder Grant had he been able to meet eligibility criteria, and therefore upon proof of it being the Director's failure that gave rise to the appellant not meeting eligibility criteria, Holt
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AsJ should have proceeded on the basis that damages in the form of the lost HomeBuilder grant automatically flowed to the appellant, rather than requiring proof that the appellant would otherwise be eligible for the HomeBuilder grant.
Background
10 The factual matters which formed the basis of the proceedings before Holt AsJ are comprehensively set out in the respondents written submissions:
"3
On 10 March 2021, the appellant filed a writ. The writ was generally endorsed and the appellant indicated the endorsement was the statement of claim ('Statement of Claim').
4
On 22 April 2021, the respondent filed an interlocutory application to strike out, and on 30 April 2021 the respondent filed submissions upon its interlocutory application to strike out.
5
On 29 April 2021, the appellant filed an interlocutory application for summary judgment.
6
The applications referred to in [4] and [5] were heard on 5 May 2021. Holt AsJ made orders, including granting the appellant leave to amend his statement of claim.
7
On 1 June 2021, the appellant filed a writ which was generally endorsed ('Amended Statement of Claim').
8
On 23 June 2021, the respondent filed a further interlocutory application to strike out, and on 6 July 2021 the respondent filed submissions upon its interlocutory application to strike out.
9
On 9 July 2021, Holt AsJ provided the appellant with a further opportunity to state with specificity the various steps that he says the respondent was under a duty to perform which would have resulted in the appellant receiving a benefit of $25,000.00.
10 On 13 July 2021, the appellant filed a document titled 'Steps for Liability'. 11 On 19 July 2021, the appellant filed a document titled 'Steps for Liability 2'. 12
On 2 August 2021, the interlocutory applications were heard. That same day, the learned Associate Judge pronounced judgment on the interlocutory applications – his Honour ordered that the action is dismissed, with judgment to be entered for the defendant, and with the plaintiff to pay the defendant’s costs.
13 On 24 August 2021, the appellant filed the notice of appeal. 14 On 7 October 2021, the respondent received a copy of the notice of appeal." 4 No 2/2025
Proceedings before Associate Judge
11 The pleadings relied upon by the appellant before Holt AsJ stated that the cause of action was "a tort, breach of a statutory duty". The appellant in his argument before Holt AsJ contended, in summary, that s 6B of the Homes Act imposed duties on the respondent to do a number of things, and had the respondent done those things, the appellant would have received the Commonwealth Home Builder Grant.
12 The essence of the pleadings filed by the appellant were summarised by Holt AsJ as follows:
"6
The plaintiff's amended statement of claim comprises 43 paragraphs. The plaintiff says in his pleading that he has been a tenant of the defendant since 1996. The pleading goes on to say that Commonwealth grants of $25,000 each were available for people who were to be the owner/occupiers of houses built pursuant to a building contract entered into between 4 June and 31 December 2020, and that reduced grants of $15,000 were available for building contracts entered into between 1 January 2021 and 1 April 2021. By implication from the pleading the assertion is that the defendant could have provided land and finance so that Housing Department tenants, including the plaintiff, could have accessed the grant. It is said that the failure to do so constituted a breach of statutory duty, and in particular a breach of the duty to take into account a number of the matters set out in the Act.
7 Section 6B of the Act relevantly provides:
'6B Purposes to be taken into account by Director In performing a function, or exercising a power or duty, under this Act, the Director must, to the extent practicable given the financial and other constraints on the performance or exercise of those functions, powers or duties, take into account the following purposes of this Act:
(a)
to enable persons to reside in residential accommodation that is safe, secure, appropriate and affordable;
(b)
to promote, and enable, the provision of safe, secure, appropriate and affordable residential accommodation;
(c)
to provide housing assistance, and enable the provision of housing support services, so as to assist in the economic and social participation of persons who, without such provision, may be restricted, in whole or in part, from economic or social participation in society;
(d)
to encourage and enable the integration, into existing and new housing communities, of –
(i)
persons with diverse characteristics and diverse financial, social and personal circumstances; and
(ii)
residential accommodation that is owned or leased by such persons who reside in it or that is provided to such persons by way of housing assistance;
(e)
to ensure that housing assistance is, and that housing support services are, able to be, provided –
(i) to the persons most in need of such assistance and services; and (ii)
for the period that such assistance and services are required to be provided to those persons;
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(f) to encourage the development of flexible and innovative financial arrangements that facilitate the ownership, leasehold, or occupation, of residential accommodation by persons on low or moderate incomes; (g) to recognise and respect the wishes and needs of persons to whom housing assistance is to be provided, and those persons with whom they reside or are to reside; (h) to provide housing assistance, and assist in the provision of housing support services, in a manner that enables effective scrutiny of such provision and assistance." 8 The plaintiff's case is that had the defendant considered the matters it was required to consider, it would have exercised its powers under the Act so that the Commonwealth grant would have been made, with the plaintiff receiving the benefit of it."
13 That argument was rejected by Holt AsJ. He said at [16]-[17]:
"16 There being nothing in the wording of the Act which could arguably lead to a conclusion as a matter of statutory construction that the Act affords a private right of action sounding in damages for breach of statutory duty, I conclude on this basis that the plaintiff's claim is so clearly untenable that it should be summarily dismissed with judgment.
17 Even if it were arguable that the Act confers a private right of action sounding in damages, there is nothing in the facts currently pleaded, nor in the matters referred to by the plaintiff in his argument, which could possibly result in him recovering the relief sought, namely damages in the sum of $25,000."
14 Further at [22]–[ 23] he said;
"22 There is nothing in either the existing statement of claim or in the steps identified by the plaintiff, which might form part of an amended statement of claim, to show how the grant might have come into the hands of the plaintiff through the exercise of the statutory powers of the defendant.
23 If through some mechanism such as the defendant acquiring land, putting it into the name of the plaintiff and then lending or giving the plaintiff sufficient funds for the plaintiff to construct a residence, a grant could have been obtained, it is impossible to conceive of any process of reasoning which could result in a finding that the defendant had a duty to the plaintiff to do these things, such duty being conformable with the broad purposes, specified in s 6B of the Act to be taken into account in their entirety for the benefit of all Tasmanians needing housing assistance."
15 Having concluded the appellant's claim was "clearly untenable" Holt AsJ summarily dismissed it pursuant to r 259 of the Supreme Court Rules 2000, on the basis that on the face of the claim it was "without any prospect of success". It is not asserted on the appeal that Holt AsJ misapplied the legal principles relevant to an interlocutory application to strike out. Rather the appellant complains Holt AsJ erred in his conclusion that the claim was "without any prospect of success".
The nature of the appeal
16 The appeal is brought pursuant to r 680A(2) of the Supreme Court Rules 2000 which provides:
"(2) A person affected by a judgment of the Associate Judge may appeal against the whole or any part of the judgment by a notice of appeal to –
(a) the Full Court, if the judgment was a final judgment; or 6 No 2/2025
(b) a judge sitting in chambers, if the judgment was an interlocutory judgment and was given in chambers; or
(c) a judge sitting in court, if the judgment was an interlocutory judgment and was given in court."
This was a final judgment.
17 In State of Tasmania v MFC [2020] TASSC 23 it was noted that to succeed the appellant must demonstrate "some legal, factual or discretionary error" infecting the orders made by Holt AsJ. Section 191B of the Supreme Court Civil Procedure Act 1932 provides for appeals against orders by the Associate Judge is to be an appeal by way of a re-hearing.
18 In Allesch v Maunz [2000] HCA 40, 203 CLR 172 at [180], Gaudron, McHugh, Gummow and Hayne JJ said in relation to the distinction between an appeal by way of re-hearing and an appeal by way of a hearing de novo:
"in the former case, the powers of the appellant court are exercisable only where the appellant can demonstrate that, having regard to the evidence now before the appellant court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case those powers may be exercised regardless of error."
19 Accordingly for the appellant to be successful on this appeal he must demonstrate "some legal factual or discretionary error" infecting the orders made by the Associate Judge.
Ground 1
20 By ground 1, the appellant asserts that the Associate Judge erred in some undefined way in his assessment of the respondent's duties. As I understand the appellant's arguments, he contends s 6B of the Homes Act imposed a duty upon the respondent to provide the appellant with affordable accommodation that may be purchased by him, and secondly imposed a duty upon the respondent to provide the appellant with flexible and innovative financial arrangements that would facilitate such a purchase. The appellant contends that if the respondent had fulfilled these duties, the appellant would have been in a position to satisfy the eligibility requirements for the Commonwealth HomeBuilder Grant and would therefore have received a benefit of $25,000. The respondent's failure to fulfil such duties amounts to a breach of statutory duty.
21 In oral argument before this Court the appellant, in reference to this ground submitted:
"The core fundamental point is that the Director of Housing, whilst being a corporation sole, is also in the position of acting as a trustee for the Crown. That is to say that he has certain properties and powers which he holds for the benefit of the Crown, as with any other trustee, and he has an Act which specifies how they are to be used and for what purpose. A failure to utilise them for that purpose under any circumstances leads any decision or any action of the Director of Housing as being corrupt and void."
22 The appellant further submitted:
"The long title of the Housing Act states that the purpose of Act is the provision of housing assistance and improvement of housing conditions and purpose – of persons in this State, the provision of assistance to persons or bodies providing housing support services, and the undertaking of activities that are consistent with the achievement of those purposes. It is my contention, your Honour, that this is not inconsistent with the duties imposed by s6B, and equally, in reverse, the duties contained within s6B are not inconsistent with the long title of the Act.
The director, therefore, must act to ensure that at some point a person is given the opportunity to buy their own home, as contained in s6B and in my case, given the nature
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and extent of the conduct directed against me over a large number of years, there was a reasonable expectation of compensation which could be used to pay for such a dwelling, either with or without litigation.
The Director of Housing's duties contained in s6B require him to use the powers within the Act to provide housing for those who are eligible and by saying that it is to provide housing, I’m not merely referring to rental housing, I am referring to the whole range of support contained within the Act. For the Director of Housing to act in any other way is inherently void and corrupt, and hence invalid. The associate justice in his decision at paragraphs 21 to 24 stated that I did not provide a mechanism by which I could conceivably become eligible for the home builders grant.
The avenue I provided was s17, which allows for the rental purchase of homes, which would have allowed for ownership for the purposes of the Commonwealth Homebuilder Grants Act and the Homebuilder Grants Act 2020. This combined with the director’s duties imposed by the statute and the fact that he is required as a trustee of the Crown provide new to home ownership to the extent desired by a person ought to be enough to satisfy any court.
…the core fundamental point is that the Homes Act is designed to provide a pathway to home ownership. The director had a duty imposed by statute to provide this avenue where a person desires to achieve home ownership and this was pointed to a court."
23 At paras [21] to [23] of his decision Holt AsJ said:
"[21] According to information published by the Tasmanian Government, and publicly available, under the scheme of grants referred to by the plaintiff, applicants had to satisfy eligibility criteria starting with an applicant having to be a natural person. Another criterion is that the applicant owns the land upon which the house is to be built at the time at which the applicant enters into the building contract for the construction of a house. There are several other eligibility criteria which I need not mention.
[22] There is nothing in either the existing statement of claim or in the steps identified by the plaintiff, which might form part of an amended statement of claim, to show how the grant might have come into the hands of the plaintiff through the exercise of the statutory powers of the defendant. [23] If through some mechanism such as the defendant acquiring land, putting it into the name of the plaintiff and then lending or giving the plaintiff sufficient funds for the plaintiff to construct a residence, a grant could have been obtained, it is impossible to conceive of any process of reasoning which could result in a finding that the defendant had a duty to the plaintiff to do these things, such duty being conformable with the broad purposes, specified in s 6B of the Act to be taken into account in their entirety for the benefit of all Tasmanians needing housing assistance".
24 The appellant's contention that the respondent had an obligation pursuant to s 6B of the Homes Act to take action to his benefit is flawed. Section 6B of the Homes Act as set out at [6] above imposes no obligation upon the respondent to do any such thing. Moreover, the appellant has failed to identify with any precision what specific duty he says was imposed upon the respondent which if carried out would have resulted in him being positioned to satisfy the eligibility criteria of the HomeBuilder Grant. For example, he does not identify any obligation upon the respondent to facilitate land or home ownership for his benefit, or any obligation to provide monies which might lead to home or land ownership, and therefore satisfy a fundamental criteria of the HomeBuilders grant.
25 Eligibility requirements for the Commonwealth HomeBuilder Grant are set out in ss 16 to 18 of the HomeBuilder Grants Act 2020. Relevantly here, in the case of a renovation the applicant must own the home and be utilising it as their principle place of residence, and in the case of a new build, own the land upon which the residence is to be built at the time the building contract is entered into.
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There is nothing contained in the pleadings which were before Holt AsJ to establish what duty the respondent had to facilitate the appellant being placed into either of these positions, such that he might become eligible to receive the HomeBuilder Grant. Holt AsJ was correct to conclude there was "nothing in the existing statement of claim or in the steps identified by the plaintiff which might form part of an amended statement of claim, to show how the grant might have come into the hands of the plaintiff through the exercise of the statutory powers of the defendant".
26 No error is demonstrated in the Associate Judge's conclusion that there was nothing in the pleadings to show how the grant may have come into the appellants hands through the exercise of the statutory powers of the respondent.
27 Before this Court the appellant relied upon s 17 of the Homes Act, and argued the respondent had an obligation to offer him a pathway to homeownership either through a direct purchase or through a rental purchase. Again, the appellant's argument ignores the wording of the legislative provision.
28 Section 17 relevantly provides:
"17 Sale of land, whether or not dwelling-house situated on the land
(1) Subject to this Act, the Director may sell to any eligible person land or a share of or interest in land, whether or not there is a dwelling-house situated on the land, if such person or his or her spouse, if any, is not the owner of a dwelling-house within this State.
(1AA) For the purposes of subsection (1), a spouse includes the person with whom a person is in a significant relationship, within the meaning of the Relationships Act 2003.
(1A) A person who desires to purchase land or a share of or interest in land under
subsection (1) shall make application in that behalf, as prescribed, to the Director.(1B) On receipt of an application under subsection (1A) of this section, the Director, if he or she is satisfied that it is proper that the application be granted, may enter into a contract for the sale to the applicant, or to the applicant and any other eligible person stipulated by the applicant, in accordance with the provisions of this Part of the land or a share of or interest in the land. (2) The sale may be at such price and upon such terms and conditions as may be
determined by the Director.… (5) The purchaser of land on which a dwelling-house is situated may occupy as a tenant
the dwelling-house–(a) on such terms and conditions as the Director may determine; and … (6) Subject to this section, if the purchaser has complied to the satisfaction of the Director with the conditions contained in the contract of sale the Director, upon payment by the purchaser to the Director of all moneys owing to the Director under the contract of sale, may transfer land or a share of or interest in land to the purchaser. executed in pursuance of this section shall be borne by the purchaser."
29 The application of basic principles of statutory interpretation, and an application of s 10 of the Acts Interpretation Act 1931 which provides in any act the word "may" is to be construed as discretionary, leads to a conclusion that the section is discretionary in nature, and enlivened by an
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application being made by a prospective purchaser. It in no way mandates the respondent to facilitate the sale of homes to tenants such as the appellant. It would be inapposite for the provision to be interpreted as imposing a duty upon the respondent to be proactive and bring about such sales absent appropriate applications. In any event, there was nothing within the pleadings before Holt AsJ which set out the facts the appellant relied upon to demonstrate the respondent had an obligation or duty pursuant to this legislative provision to facilitate land or home ownership for his benefit. Indeed, it is hard to comprehend the factual basis that might exist, let alone be pleaded, that would establish such an obligation or duty upon the respondent.
30 Ground 1 is without merit and must fail.
| Ground 2 |
31 By ground 2 the appellant asserts Holt AsJ fell into error when he determined the question of whether a statute confers a private right of action is a matter of statutory construction; and secondly by rejecting the proposition that for no private right of action to arise, the statute must expressly preclude it.
32 At [16] Holt AsJ said;
"There being nothing in the wording of the Act which could arguably lead to a conclusion as a matter of statutory construction that the Act affords a private right of action sounding in damages for breach of statutory duty, I conclude on this basis the plaintiff's claim is so clearly untenable that it should be summarily dismissed with judgement" (emphasis added).
33 The starting point for ascertaining the meaning of any statutory provision is always the words themselves, read with an understanding of the context and purpose of the legislation. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362 Kiefel CJ, Nettle and Gordon JJ said at [14]:
"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (footnotes omitted).
34 Whether or not a statute provides for a private right of action clearly necessitates an exercise in statutory interpretation. I do not understand how the appellant asserts a determination can be made as to whether parliament intended to create a private actionable right within a particular legislative provision, without embarking upon an exercise of statutory interpretation. The gravamen of the appellant's argument seemed to me to rest in the assertion that Holt AsJ erred in concluding no private right of action arose in circumstances where it had not been expressly precluded by the words of the statute. To this extent the appellant's argument is circular because the very exercise the appellant seeks this Court to undertake involves an exercise in statutory interpretation. Nevertheless, the appellant did not disavow reliance on this aspect of ground 2, and to the extent it is necessary to determine it, the appellant's argument is clearly without foundation.
35 In Sovar v Henry Lane Park Pty Ltd [1967] HCA 31, 116 CLR 397 at [405] it was said:
"The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The
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legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation : see Martin v. Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department) (1934) 34 SR (NSW) 593, at p 596 , and cases there cited. It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances. Of course, as reported cases illustrate again and again, decisions given upon enactments which seem fairly comparable will not always be easy to reconcile with one another, for upon questions of inference some lack of uniformity of opinion is to be expected. But that is no justification, it seems to me, for seeing the task as other than a genuine exercise in interpretation."
36 There is nothing within the wording of the Homes Act to directly suggest it gives rise to a private right of action. Equally, there is no provision which expressly precludes the availability of such a right of action. Therefore the question becomes whether there is a basis from which the court can properly infer that a private right of action arises. In the absence of clear words of legislative intent to suggest such a right arises, it is difficult to see upon what basis such an inference can be reasonably and properly drawn.
37 In Pyrenees Shire Council v Day (1998) HCA 3, 192 CLR 330 at 347 Brennan CJ held:
"No duty breach of which sounds in damages can be imposed when the power is intended to be exercised for the benefit of the public generally and not for the protection of the person or property of members of a particular class…"
38 It is necessary to consider then whether the statutory obligations contained within the Homes Act exist for the benefit of the general public or a particular person or class of persons.
39 The Homes Act is a scheme of social welfare for the provision of housing assistance. The long title of the Homes Act provides that it is:
"An Act relating to the provision of housing assistance to, and improving the housing conditions of, persons in this State, the provision of assistance to persons or bodies providing housing support services, and the undertaking of activities that are consistent with the achievement of those purposes."
40 Consistent with this, s 2 of the Homes Act states that the purposes of the Act are: (a) to provide, or to enable the provision of, housing assistance to eligible persons; and (b) to assist in the provision of housing support services to eligible persons.
41 The purpose and intent of the Homes Act weighs in favour of it being a statutory scheme directed at the benefit of the community at large, rather than a specified class of individuals. It speaks in terms of "persons in this State". The provision of housing assistance creates benefit to the community as a whole by improving health outcomes, decreasing the likelihood of involvement with the criminal justice system and enhancing employment and educational opportunities with a resultant economic benefit to society via future costs savings. The Act provides the respondent with various discretionary powers directed at furthering the purposes of the Act, but the Act does not create a duty to act in any particular way to any specified person or class of persons.
42 I can identify no provision within the Homes Act that imposes upon the respondent a duty to act for the benefit of the appellant. Moreover, the appellant throughout the course of his submissions did not identify any such provision. Indeed, in the main, the Homes Act is not proscriptive in terms of actions that the respondent must take to protect an individual against a particular type of harm. Instead it
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provides the respondent with various powers expressed in permissive language, which are directed at furthering the purposes of the Act. For example, see s 6A(3A), s 6B, s 15AA(1), s 17(1) of the Homes Act.
43 In my view, it would be extraordinary to extrapolate from such discretionary provisions, a conclusion such as that which is contended for by the appellant namely; that the respondent owed him a duty to provide affordable and appropriate accommodation which may be purchased by him via innovative financial arrangements, and if the respondent failed to provide him with the opportunity to make such a purchase, it amounted to a breach of statutory duty such that he is entitled to a claim for monetary damages. Such a conclusion would be nonsensical and contrary to the text and context of the Act.
44 Having regard to the nature and purpose of the Homes Act there is no proper basis from which it could be inferred that the intention of the legislature was to create a private right. Clearly, the respondent is required to exercise its powers in a manner that benefits the public generally. The operation of the Homes Act is not limited to the benefit of a specified class of persons, as evidenced by provisions such as s 6B, which refers to a wide variety of persons including:
• persons generally: s 6B(a): • persons who, without the provision of housing assistance and housing support services, may be restricted in whole or in part, from economic or social participation in society: s 6B(c); • communities of persons with diverse characteristics with diverse financial, social and personal circumstances and residential accommodation that is owned or leased by such persons who reside in it, or that is provided to such persons by way of housing assistance: s 6B(d); • the persons most in need of housing assistance and housing support services: s 6B(e); • persons to whom housing assistance is provided: s 6B(f). 45 A reading of the whole of the Homes Act supports a conclusion that the statutory obligations operate for the benefit of the public at large and not just a specified class of persons. I can identify no rational reason to infer a legislative intention to create a private right of action which sounds in damages.
46 Even though I am of the view the Homes Act does not create a private right for any individual, I add for the sake of completeness that, even if it did, the pleadings that were before Holt AsJ did not disclose a reasonable cause of action. The pleadings obtusely stated the cause of action to be "a tort, breach of statutory duty" but they did not plead the statutory provision said to give rise to the duty, they did not plead the facts alleged to amount to the breach of the purported duty, they did not plead the basis upon which the appellant claimed he was a person to whom the duty was owed, they did not plead the facts relied upon to demonstrate the appellant would have received the benefit of the grant had the duty been fulfilled, nor did they plead the basis upon which the appellant asserted he was entitled to relief. When considering the allegations of fact contained within the pleadings, it is difficult to comprehend how Holt AsJ could have concluded anything other than, the cause of action was "so obviously untenable that it could not possibly succeed". See Pridmore v Magenta Nominees Pty Ltd (1999) FCA 152, 161 ALR 458 at [24].
47 This ground must fail.
| Ground 3 |
48 As I understand the appellant's third ground of appeal, he asserts Holt AsJ fell into error by not proceeding upon a presumption that if the appellant had been in a position to purchase or build a home,
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he would inevitably have received the benefit of the HomeBuilder Grant, regardless of the existence of the other eligibility criteria as set out in ss 16 to 18 of the HomeBuilder Grants Act 2020, and therefore it follows that upon proof of the Director's failure to fulfil his duty to position the appellant to purchase or build a home, his loss of the benefit of the $25,000.00 HomeBuilder Grant can be presumed without the need for the appellant to establish any further entitlement to relief.
49 The appellant has referred to no authority which supports his proposition. The eligibility criteria is relatively detailed. It includes for example, criteria relevant to citizenship, taxable income, length of occupation of premises and/or ownership of land, prior receipt of like grants, specifications as to the contractors who may be engaged to undertake work pursuant to a grant, and time periods for commencement of works. They are criteria directed at maximising the beneficial use of public monies. Entitlement to the HomeBuilder Grant was not simply premised upon being a home or land owner. It was far more complicated than that. I can identify no sensible reason why the presumption the appellant argues for should arise. Indeed, the contrary conclusion is supported by the detail associated with the eligibility criteria. If Parliament intended that land or home ownership be the fundamental eligibility criteria, and proof of the balance of the criteria was assisted by a presumption, even if rebuttable, they would have said so. There is no justification to cast aside the need to prove the balance of the eligibility criteria. It was therefore necessary for the appellant to demonstrate through his pleadings, why he would, independent from the question of land ownership, meet eligibility criteria. At the very least, fundamental considerations such as whether the appellant had the financial means to enter into a building contract had to be addressed. It was not at all appropriate for eligibility to be presumed.
50 In any event, the difficulty the appellant faces in successfully agitating this ground of appeal again lies in his pleadings. It is necessary to repeat what Holt AsJ said in his decision at [6]:
"The plaintiff's amended statement of claim comprises 43 paragraphs. The plaintiff says in his pleading that he has been a tenant of the defendant since 1996. The pleading goes on to say that Commonwealth Grants of $25,000 each were available for people who were to be the owner/occupiers of houses built pursuant to a building contract entered into between 4 June and 31 December 2020, and that reduced grants of $15,000 were available for building contracts entered into between 1 January 2021 and 1 April 2021. By implication from the pleading, the assertion is that the defendant could have provided land and finance so that Housing Department tenants, including the plaintiff, could have accessed the grant. It is said that the failure to do so constituted a breach of statutory duty, and in particular a breach of the duty to take into account a number of the matters set out in the Act …particularly s 6B."
51 And further at [17] and [22]
"[17] …there is nothing in the facts, currently pleaded, nor in the matters referred to by the plaintiff in his argument, which could possibly result in him recovering the relief sought, namely damages in the sum of $25,000... [22] There is nothing in either the existing statement of claim or in the steps identified by the plaintiff, which might form part of an amended statement of claim, to show how the grant might have come into the hands of the plaintiff through the exercise of the statutory powers of the defendant."
52 It remained fundamental to the appellant having a reasonable cause of action that he plead how the respondent's failure to perform his purported duty caused him to suffer loss. To suffer such loss it was necessary for the appellant to establish he had an entitlement to the HomeBuilder Grant. To simply assert that the only reason he was not eligible for the HomeBuilder Grant was because the respondent had not fulfilled his duty to offer him a home or land to purchase, is tautological. It presumes the very conclusion that purports to be presented as a material fact.
53 The appellant's statement of claim and documents subsequently filed which Holt AsJ treated as an amended statement of claim, disclosed no viable cause of action. The appellant simply did not plead
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the material facts relevant to show that the respondent was a person on whom the statute cast a duty, that he was a person for whose benefit the duty was created and that the respondent had failed to perform the duty in a manner which gave rise to suffering a loss and having an entitlement to relief.
54 I can detect no error in the approach taken by Holt AsJ. This ground of appeal must fail.
Is leave to extend time required?
55 The appellant contends he does not require leave to extend time for the filing of the appeal because he filed the appeal with the Supreme Court Registry on 24 August, and pursuant to s 29 Acts Interpretation Act he had until that date to file his appeal. Section 29 Acts Interpretation Act provides:
"29 Reckoning of time (1) Where by or under any Act any period of time, dated or reckoned from a given day, act, or event, is prescribed or allowed for any purpose that period of time shall be reckoned exclusively of that day, or of the day of that act or event, as the case may be. (2) Where by or under an Act a period is expressed to be a specified number of clear days or a specified number of days at least, that period shall be reckoned exclusively both of the given day or of the day of the specified act or event and also of the day on which the purpose is to be fulfilled."
56 What the appellant's submission fails to recognise however is that r 680A(3)(a) of the Supreme Court Rules 2000 provides an appeal is to be instituted in the case of an appeal from a final judgment, within 21 days of or after the judgment was pronounced. What amounts to the institution of an appeal is defined by r 680A(4) and involves a two-step process. Not only does the notice of appeal have to be filed, but it must also be served on each party directly affected by it. The notice of appeal was not served upon the respondent until 7 October, so even with the reckoning of time provided for by s 29 of the Acts Interpretation Act, the appellant did not complete the process necessary to validly institute the appeal in time. He requires leave to extend the time for the filing of the appeal.
Disposition
57 Because I am of the view that the appellant's grounds of appeal are devoid of merit and must fail, the application to extend time for instituting an appeal is refused. It would be a futile exercise to extend time.
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