Von Stalheim v Director of Housing
[2022] TASSC 47
•4 August 2022
[2022] TASSC 47
COURT: SUPREME COURT OF TASMANIA
CITATION: Von Stalheim v Director of Housing [2022] TASSC 47
PARTIES: VON STALHEIM, Kurt
v
DIRECTOR OF HOUSING
FILE NO: 2768/2020
JUDGMENT
APPEALED FROM: Kurt Von Stalheim v Director of Housing M2020/623
DELIVERED ON: 4 August 2022
DELIVERED AT: Hobart
HEARING DATE/S: 17 November 2021
JUDGMENT OF: Geason J
CATCHWORDS:
Administrative law – Grounds of review – Jurisdictional matters – Whether counsel acted in bad faith or fraudulently – Whether effect of submissions by counsel was to disable, or constrain the exercise of powers vested in the Court – Bad faith or fraudulent conduct not established – Effect of submissions by counsel was not to disable, or constrain the exercise of powers vested in the Court – Appeal dismissed.
SZFDE v Minister for Immigration [2007] HCA 35; Lazarus Estates Ltd v Beasley [1956] 1 QB 701; Farley (Aust) Pty Ltd v JR Alexander & Sons (Q) Pty Ltd (1946) 75 CLR 487; Craig v South Australia (1995) 184 CLR 163; Minister for Home Affairs v DUA16, Minister for Home Affairs v CHK16 [2020] HCA 46; Lazarus Estates Ltd v Beasley [1956] 1 QB 701, referred to.
Magistrates Court (Civil Division) Act 1992, ss 28(2), 28(3).
Aust Dig Administrative Law [1029]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: E Lim
Solicitors:
Respondent: Office of the Solicitor-General
Judgment Number: [2022] TASSC 47
Number of paragraphs: 26
Serial No 47/2022
File No 2768/2020
KURT VON STALHEIM v DIRECTOR OF HOUSING
REASONS FOR JUDGMENT GEASON J
4 August 2022
The appellant appeals an order made by Magistrate Stanton on 9 November 2020, giving judgment for the Respondent to these proceedings, in a "minor civil claim" in the Magistrates Court.
The appeal is brought pursuant to s 28(2) of the Magistrates Court (Civil Division) Act 1992 (The Act). Section 28(2) is in these terms:
"(2) If a party to a proceeding in respect of a minor civil claim before the Court is aggrieved by any determination, order, ruling or direction of the Court, that party may appeal to a judge of the Supreme Court –
(a) on one or more of the following grounds:
(i) that the magistrate lacked jurisdiction or exceeded his or her jurisdiction;
(ii) that the party was denied natural justice in the course of proceedings; or
(b) if a judge of the Supreme Court grants leave, on any other ground."
The appellant relies upon s 28(2)(a)(ii).
On an appeal this Court exercises the powers set out in s 28(3) of the Act which authorises it to make any orders it considers appropriate in the circumstances.
The appellant lodged six grounds of appeal. At the hearing of the appeal he abandoned five of those grounds and pursued only one, ground 6.
Background
The factual matters which formed the basis of the claim before the magistrate are set out in the respondent's written submissions:
"(a)On 13 March 2020, the appellant commenced proceedings in the Magistrates Court by filing a claim form ('Claim').
(b)The appellant sought damages in the amount of $5,000.00 for the respondent's failure to prevent Chris Kelly from harassing him.
(c) The allegations of facts which can be gleaned from the Claim are as follows:
iThe appellant is a tenant of the respondent.
iiPresumably Mr Kelly is also a tenant of the respondent.
iiiMr Kelly's residential tenancy agreement contained terms requiring him not to interfere with other neighbours.
ivThere were a number of incidents involving Mr Kelly reported to officers of Housing Tasmania.
vIn the early hours of the morning of 12 March 2014 Mr Kelly started playing loud music and yelled demeaning and derogatory comments about the appellant.
viHousing Tasmania staff asked Mr Kelly not to do that again but his residential tenancy agreement was not terminated.
viiMr Kelly was therefore able to continue to harass the appellant until 6 April 2016 when Mr Kelly was transferred to another property.
viiiThe Claim refers to s 6B of the Homes Act 1935[1] and asserts that the respondent did not 'exercise their full powers'.
ixThe only specific act or omission of the respondent pleaded in the Claim was that the respondent did not terminate Mr Kelly's residential tenancy agreement."
The claim in the Magistrate's Court
Because the application before the magistrate was determined by reference to the appellant's claim in that court it is necessary to set it out despite its length:
"The Director of Housing, a Corporation sole, derives his existence and powers from the Homes Act 1935, which contains provides under which this office provides homes for lease.
The Homes Act 1935 contains within its provisions, S. 6B, with Paragraphs (a) and (b), which states that "In performing a function, or exercising a power or duty, under this Asct (sic), the Director must,..., take into account the following purpose of this Act:
(a) to enable persons to reside in residential accommodation that is safe, secure,…;
(b) to promote, and enable, the provision of safe, secure,... affordable residential accommodation;"
The properties are leased pursuant to the Residential Tenancy Act 1997 and all lease agreements were formed, or re-formed, under that Act. He is also known as 'Housing Tasmania' and validly or otherwise, his organisation shall be refereed (sic) to as 'Housing Tasmania' herein.
In particular this tenancy agreement at clause 3.6(b), 3.12, 3.14, 4.3 & 7.2,. These clauses require that tenants do not interfere with other neighbors (sic), and clauses 3.12 & 3.14. If they do so, it is the duty of the staff of the Director of Housing to either prevent this or to enforce the terms of the lease agreement, at clauses 4.3 & 4.7. Obviously ending a lease agreement is one such option.
I commenced living at this residence in June 1996 and have continued to do so since this time.
Mr Chris Kelly commenced living in Unit 2, 409 Wellington Street, Launceston, Tasmania, 7250, in December 2009. Following his arrival a large number of incidents occurred, which were reported to the officers of the Housing Tasmania. The officers of Housing Tasmania were therefore aware of the problems with Mr Chris Kelly and did not exercise their full powers to prevent this form continuing. From the information made available to me by Mr Kelly, they simply asked him to leave me alone.
As a result of this failure to enforce the terms of the lease agreement, on the morning of the 12th March 2014, commencing at 1.25 am Mr Kelly commenced to disturb the peace and quite (sic) of the residence by turning loud music on at 1.45 am and also 3.35 am. Between 3.15 and 3.25 am, Mr Kelly yelled the following comments from the front of the units;
- police told me you called them
- I'll smash you (sic) fucking windows
- Fucking paedo
- Fucking dog
- Fucking rat
- 3,5,6 days left and then I will smash you
- ring the cops out here
- bring your axe out here
-bring your baseball bat out here (I do not know how he found out that I own a baseball bat)
- bring what ever you like
- sniffing my sons under pants
- mother fucker
- burn you (sic) place down
- smash you and 2 or 3 others
- smash you like the paedophile you are
- masturbating
- masturbating over my sons
-call the police and see if I care, they have already been here
- call caroline and see if I care
- you will not have anything left
-I will flatten everything You had better close your windows (Referred to my roses)
- You have been in prison for fucking little boys
- That's what you were in prison for, you paedo
- Unit 1 you paedo
- You think that you are the man
- You think that you run this joint
- With your shiny shoes
- With your fancy pants
This conduct represents forms of less favourable treatment conducted on the basis of an imputed prescribed attribute against me and in its self (sic) a contravention of the Anti Discrimination Act 1998.
I under stand (sic) that Mr Kelly was asked not to do this again, because Housing Tasmania did not wish to have any problems with me but nothing further was done about the situation. However, as the evidence shows this left him able to continue to harass me over the remaining period of time until April 2016.
It is clear from a reasonable reading of the tenancy agreement that the Director of Housings (sic) staff could have ended the tenancy agreement at this time to prevent further conduct, or they could have served a final notice that if there were to be any further conduct of this form they would end the tenancy agreement, they did not do so.
Rather by doing nothing that is clearly within their power they choose to provide protection for harassment on the basis of a prescribed attribute, thereby aiding this form of conduct by giving it protection. Since this is prohibited by the Anti Discrimination Act 1998 the Director of Housing has misused his office, or permitted his staff to misuse their office, so as to enable contraventions of an Act.
By doing nothing to prevent this form of conduct, when the law permits them to do so, the Director of Housing has promoted conduct that is contrary to the Anti Discrimination Act 1998, or permitted his staff to promote contraventions of the Anti Discrimination Act 1998 and since no public office may contravene an Act, the Director of Housing has committed a misfeasance of a public office.
Mr Kelly remained living in this unit for some time after this and was provided with a transfer to another Housing Tasmania property on the 6th April 2016.
It is obvious from the trend of conduct that either the Director of Housing, or his staff did not have due regard to any duties imposed upon them by either the Homes Act 1935, S.6B, nor the tenancy agreement, at clauses 4.3 & 4.7. This resulted in considerable suffering on my part.
It is because of this suffering that I now claim the amount of $5000.00 and in doing so I note the applicability of Burton v Houston [2004] TASSC 57, which was decided on acts of harassment directed against a person because of prescribed attribute for the amount of $4000."
The respondent's application in the Magistrate's Court
Before the magistrate the respondent sought orders entering judgment for the Director of Housing on the basis the claim disclosed no reasonable cause of action and was an abuse of process. It said of the applicant's claim that: [43] "Although the Claim is unclear, the Claim appears to be alleging that the Defendant (the Director of Housing) had a duty to take action to prevent a social housing tenant from interfering with or harassing neighbours (including the Claimant)" and referencing the claim at 2-3. It further asserted, without setting out all matters raised, that the Director failed to perform duties reposed in him to enforce the terms of the Residential Tenancy Agreement with the neighbour when such duty existed (at 46); that the claim failed to identify how the Homes Act "imposes a duty … to ensure persons are not discriminated against" (at 51); failed to identify a basis for the application of the Anti-Discrimination Act 1998; or how it was put that the Director aided or permitted conduct contrary to that Act (at 61); failed to disclose any basis upon which it was asserted the Homes Act applied to a "non-social housing tenant" like the applicant.
The parties filed written submissions, and they were invited to supplement those with oral submissions. The appellant made further oral submissions; the respondent did not. In consequence of those further submissions the magistrate allowed the parties seven days to write to the court and provide references to any authorities relied upon, and affording each of them an opportunity to respond to any submissions that had been made. Both parties proceeded to file further written submissions. On 9 November 2020 the magistrate published his reasons for deciding that there was no basis upon which the appellant's claim could succeed, and that it was an abuse of process, entering judgment for the Director of Housing.
The appeal
Ground 6, the only ground pursued as noted earlier, is in these terms: "Magistrate Stanton was constructively prevented from handing down a decision by the fraud practised by counsel for the Director of Housing and as a result a breach of the rules of natural justice has occurred."
Ground 6 asserts a type of jurisdictional error. In his submissions to this Court the appellant submitted there had been a fraud perpetrated by counsel for the Director of Housing constituted by his misrepresenting the nature of the request to the respondent. As to the principle and the conduct of counsel the appellant submitted:
"Your Honour, fraud is a jurisdictional error, and the ground is raised upon this basis. The authority for that is the High Court's decision of SZFDE v Minister for Immigration [2007] HCA 35 at par17, citing the cases contained within that paragraph. In that particular decision, the High Court was dealing with a matter where the advocate falsely claimed to be a solicitor and a licensed migration agent. In fact, on the 5th of July 2001, the New South Wales Law Society had cancelled his practice certificate. In this particular decision the High Court examined the effect of fraud by covering the entire area of the law, and concluded that the act of fraud invalidates every aspects of the proceeding. At par10 of the decision, the High Court stated that:
'Fraud acted indifferently to all failures in relation where inequity sets a certain standard of conduct.'
And the key issue there, I think, is the standard of conduct...
HIS HONOUR What's the particular fraud that you allege?
MR VON STALHEIM In this matter?
HIS HONOUR The matter before me, yes.
MR VON STALHEIM The particular fraud was that I requested that Mr Kelly's tenancy agreement be cancelled and that he be removed.
HIS HONOUR That was your application. What's the fraud?
MR VON STALHEIM That's the fraud. I never made a request. I've never made a request in relation to Mr Kelly's tenancy agreement. I merely made a vague request that the matter be stopped, and I raised the issue of rental purchase properties, i.e. that I should be moved from that location.
HIS HONOUR: Yes, I understand that. But you have asserted in the ground "the fraud practiced by the counsel for the director". What's the fraud practiced by the counsel for the director that you rely upon?
MR VON STALHEIM: He made the false assertion that I had requested that Mr Kelly's tenancy agreement be ended and that he be removed that way.
HIS HONOUR: So he misstated the nature of your application. Is that what you're saying to me?
MR VON STALHEIM: I'm saying that the Director of Housing misstated the facts to such an extent that Magistrate Stanton's decision was riddled by it.
HIS HONOUR: I see. Thank you.
MR VON STALHEIM: And I believe I cited the various paragraphs within which this occurred, your Honour.
HIS HONOUR: Yes, you have….
MR VON STALHEIM: The consequence is that the decision made by the Tribunal in that instance is properly regarded in law as no decision at all. This is because in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities collected by the High Court in Bhardwaj [2002] 209 CLR 597, pages 614 to 615, all support this. And you can also see another High Court decision in Plaintiff S157/2002 v Commonwealth [2003] 211 CLR 476 at 506….
MR VON STALHEIM: In this particular case, the Magistrates Court was informed that the motive behind my complaints to the delegates of the Director of Housing was to have Mr Kelly's tenancy agreement ended. In actual fact, with a Home Builder grant of $30,000 available, it was directed more at arranging to have the property built for the purposes of forming a rental purchase agreement and use the money to buy a motor vehicle to be able to travel from the new residence to town, as well as solar panels."
In his written reasons the magistrate referred to the substance of the claim on a number of occasions:
"7Despite the form of the particulars of claim, it is possible to glean from them that the claimant relies on the following allegations of fact.
aMr Kelly's residential tenancy agreement contained terms requiring him not to interfere with other neighbours including as set out in clauses 3.6(b), 3.12, 3.14, 4.3, 4.7 and 7.2 of that agreement.
bThere were a large number of incidents involving Mr Kelly reported to officers of Housing Tasmania.
cDespite knowledge of those incidents officers of Housing Tasmania did not exercise the powers of the defendant to "enforce" Mr Kelly's agreement. In particular they did not terminate Mr Kelly's residential tenancy agreement but only asked him to leave the claimant alone.
dThe result of the failure to "enforce" the terms of Mr Kelly's agreement was that in the early hours of the morning of 12 March 2014 Mr Kelly started playing his music loud and yelled demeaning and derogatory comments about the claimant including that he was a paedophile, and associated abuse.
eHousing Tasmania staff asked Mr Kelly not to do that again but his residential tenancy agreement was not terminated.
fMr Kelly was therefore able to continue to harass the claimant until 6th April 2016 when Mr Kelly was transferred to another property.
8The claimant alleges that Housing Tasmania staff could have ended Mr Kelly's tenancy agreement. He alleges that by failing to do so and by only asking Mr Kelly to desist the defendant or Housing Tasmania staff thereby:
aaided Mr Kelly's breaches of the Anti-Discrimination Act 1998 in contravention of s21 of that Act;
bbreached the defendant's duties under s 6B of the Homes Act 1935; and
cbreached a contractual duty owed to the defendant to enforce the terms of Mr Kelly's contract.
…
12First, the claimant asserts the defendant failed to terminate Mr Kelly's residential tenancy agreement. The defendant cannot unilaterally terminate that agreement. Under the Residential Tenancy Act 1997 the remedy for a breach of the agreement by causing a nuisance is for the landlord to serve a notice to vacate. If that notice to vacate takes effect the defendant can apply to the court for an order for delivery of vacant possession. If the court orders delivery of a vacant possession that results in the termination of the agreement. Termination is the legal result of a court order and not a unilateral act of the defendant: s37(1)(d), Part 4 Div 2 Residential Tenancy Act 1997. I nonetheless treat the claimant's claim as alleging that the defendant failed to take steps to terminate Mr Kelly's residential tenancy agreement by serving a notice to vacate and in the event it became effective applying to the court for an order for delivery of vacant possession. His claim for damages would then depend on the prospects of success of that application. I assume those prospects would have been reasonable although it is likely that success would have largely depended on the court believing the claimant's allegations about Mr Kelly's conduct.
…
17The claimant alleges that the defendant's failure to terminate Mr Kelly's residential tenancy agreement is unlawful. To state the proposition is to see its futility. The act must be unlawful in the sense that it would be subject to judicial review. None of the matters raised by the claimant could conceivably result in successful judicial review of any decision of the defendant about whether or not to terminate Mr Kelly's residential tenancy agreement.
…
28The claimant submits that provision gave rise to a duty on the defendant to terminate Mr Kelly's residential tenancy agreement. He asserts failure to do so breached the defendant's duty to the claimant to provide the claimant with safe, secure and appropriate accommodation." (My emphasis.)
I accept the magistrate identified the removal of the appellant's neighbour as the issue central to the appellant's claim in that court.
Discussion
The legal principle relied upon by the appellant, is not in doubt. In SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 the High Court upheld an appeal from the Full Court of the Federal Court because of the fraud committed by the appellant's representative at the Tribunal, the tribunal was "disabled from the due discharge of its imperative statutory functions … a state of affairs which merited the description "of the practice of fraud "on" the Tribunal" [51]. The court was dealing with a case in which relief had been sought before the Federal Magistrates Court. It was contended that a decision of the Refugee Review Tribunal was affected by a fraud committed by a person purporting to be a solicitor when in fact his practising certificate had been cancelled.
As to the concept of fraud the court said at [8]:
"[8] It is convenient first to consider the place of "fraud" in the framework of general legal principle. In his celebrated speech in Reddaway v Banham [1896] AC 199 at 221, Lord Macnaghten spoke of the various guises in which fraud appears in the conduct of human affairs, saying "fraud is infinite in variety"
As to the notion of an advantage procured by a fraud as the basis for vitiating a decision infected by such conduct: Lazarus Estates Ltd v Beasley [1956] 1 QB 701 at 712-3 Denning LJ declared:
"No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…." (References omitted).
Reference was made to the comments Williams J in Farley (Aust) Pty Ltd v JR Alexander & Sons (Q) Pty Ltd (1946) 75 CLR 487 at 493: "Fraud is conduct which vitiates every transaction known to the law. It even vitiates a judgment of the Court. It is an insidious disease, and if clearly proved spreads to and infects the whole transaction."
In Craig v South Australia (1995) 184 CLR 163 at 175-176 the concept of fraud in public law, was held to encompass the notion of acting in bad faith, indicating that it is a broad concept in the public law context, reflecting the importance of considerations fundamental to the administration of justice.
After the hearing the applicant referred to a further decision of the High Court (without objection): Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46. In that case the Court referred to and applied SZFDE (above). The court restated the point that the enquiry focusses upon whether the asserted fraud stultified the core review function entrusted to the tribunal.
To succeed the appellant requires a finding that there was conduct by counsel for the Director of Housing which amounted to him acting in bad faith, or otherwise committing a fraud, which had the effect of precluding the court from fulfilling its statutory obligation to arbitrate upon the minor civil claim. I accept that if counsel acted in bad faith, there is a fraud in the necessary sense and the appeal will succeed provided, I am satisfied the effect of the fraud was to disable the performance of the Court's statutory function.
The respondent submits this ground falls at the first hurdle, because there is no evidence of any fraud by counsel. Ms Lim for the respondent submits "… there is no evidence of counsel's state of mind, and I also observe, as your Honour has, that the appellant hasn't identified any particular statement within the transcript which counsel made which he says constitutes fraud… My submission, your Honour, is that it's plain that counsel for the respondent did not assert as a fact that the appellant asked the director to end Mr Kelly's tenancy agreement. Counsel's reference to terminating the lease is clearly addressing matters raised in the claim and articulating counsel's understanding of the claim. If his understanding was incorrect, my submission is the appellant had the opportunity to clarify what his claim sought. Further, the respondent submits that the Court should find the magistrate's decision was based on the claim and the appellant's submissions… In the claim, the appellant pleaded that if a tenant of the respondent breaches the terms of his or her tenancy agreement:
'It is a duty of the staff of the Director of Housing to either prevent this or to enforce the terms of the lease agreement at clauses 4.3 and 4.7. Obviously, ending a lease agreement is one such option.'
The appellant further pleaded:
'It is clear from a reasonable reading of the tenancy agreement that the Director of Housing staff could have ended the tenancy agreement at this time to prevent further conduct, or could have served a final notice, if there were to be any further conduct of this form, they would end the tenancy agreement. They did not do so.'
I submit, your Honour, that no other particular act or omission of the respondent was asserted by the appellant, and on that basis, my submission is there's no evidence of fraud, and in any event, the magistrate's decision was based on a claim and the appellant's submissions…".
In reply to that submission the appellant said:
"Ms Lim said that there's no evidence as to counsel's state of mind. This is a misleading irrelevance. First of all, state of mind is not important. What is important is that the Court has been misled. Secondly, it is not counsel's state of mind which matters. The state of mind which matters is the person who provides the instructions to counsel. Counsel is merely an agent for the Director of Housing. There is no evidence – and I note that counsel, despite having the opportunity to present the evidence before the Lower Court, or present it by way of a statutory declaration in this court, has not produced any evidence to show that I requested of Housing Tasmania that Mr Kelly's tenancy agreement be ended. I simply did not make that request.
Finally, the evidence of fraud which matters in this instance is the evidence contained within this decision. To the extent that there are numerous references to Mr Kelly's tenancy agreement being ended, that is all the evidence that is required. It proves in and of itself on the face of it that the Court was misled. I think that's the lot, your Honour."
I accept the submissions of Ms Lim. I can find no basis for the suggestion that counsel acted in bad faith or fraudulently. Counsel had done no more than address matters raised in the claim. If one refers to it (above) it is apparent that the thrust of the applicant's claim was directed at the conduct of his neighbour and the Director's response (or lack of response) to it. (That the appellant could have cured any misstatement of his claim before the magistrate, is not determinative, but I note that he chose not to, and in my judgment that is because the counsel's submissions were responsive to the issues articulated in the applicant's claim). The respondent was called upon to reply to what was put in that claim, and that is what he did. If the applicant sought something else, as he now asserts, that was not clear from the terms of the claim.
Bad faith in the conduct of counsel for the Director is not established.
Strictly, it is unnecessary in those circumstances to consider the effect of counsel's submission on the exercise of the court's powers. However the magistrate's decision is in fact responsive to the matters contained in the claim, which as I have said were articulated substantially in terms of a breach of duty to uphold the Act by removing the recalcitrant tenant next door. It is perfectly clear from the terms of the decision, read against the content of the claim that the effect of the submissions by counsel for the Director was not to disable, or constrain the exercise of powers vested in the court.
This appeal is without merit. It is dismissed.
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;
(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."
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