Commissioner for Housing v Ganas [2003] ACTSC 34

3. The Tribunal found that the respondent was not "in urgent need of housing" and not therefore eligible for allocation to Priority Category 1. However, it found that he was eligible for allocation to Priority Category 2. The criteria for allocation to that priority category requires a tenant to demonstrate that his or her "current housing is seriously overcrowded, or is no longer suitable because of serious medical or other reasons". The Tribunal did not accept that the respondent's current housing was seriously overcrowded or that it was no longer suitable because of serious medical reasons. It did, however, accept his contention that it was no longer suitable because of "serious . . . other reasons". Those reasons were constituted by the unpleasant nature of the living environment and by anxiety experienced by both the respondent and his wife concerning antisocial behaviour in the residential complex where their current accommodation was located. That conduct included drug taking, defecating and urinating in the stairwell. The Tribunal also took into account the fact that the flat they presently occupied would be too small to provide adequately for the developmental needs of their daughter and that this situation would be exacerbated when a second child, with which the respondent's wife was then pregnant, was subsequently born.

4. The Tribunal found that the decision made by the appellant on 20 December 2001 should have been to assign the respondent to Priority Category 2. It proceeded to make the following order:

The application is to be assigned to a Priority Category 2 and the applicant placed in the Early Allocation Transfer list for a three bedroom house or flat, preferably with a back yard, in any area with effect from 20 December 2001.

6. Whilst the grounds of appeal all alleged errors of law, the submissions made in support of them unavoidably strayed into issues of fact and it may be appropriate to begin by making some observations about the nature and extent of an appeal that may be brought from a decision of the Tribunal.

7. As Mr Kettle pointed out in his written submissions, s 46(1) of the Administrative Appeals Tribunal Act 1989 (ACT) provides that the party to a proceeding before the Tribunal may appeal to the Supreme Court on a question of law. Such a provision would normally exclude, by implication, an appeal based only on perceived errors of fact.

8. However, in Kelly v Apps [2000] FCA 687 a Full Court of the Federal Court of Australia held that s 20 of the Supreme Court Act 1933 (ACT) provided "all appellate jurisdiction that is necessary to administer justice in the Territory": per Wilcox J at [17]. The case had involved an issue as to whether an appeal could be maintained from a decision of the Magistrates Court when it was not of a kind authorised by subs 207(1) of the Magistrates Court Act 1930 (ACT) and that subsection purported to stipulate the appellate jurisdiction of the Supreme Court in relation to decisions under that Act. In affirming that such an appeal was maintainable, the Full Court observed that subs 207(2) provided that nothing in the relevant part of the Magistrates Court Act limited the operation of any other Act making provision for the appellate jurisdiction of the Supreme Court and held that the broad general jurisdiction conferred by s 20(1)(a) of the Supreme Court Act 1933 applied. Indeed, their Honours said that the intention of the legislature seems to have been to "ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory", per Wilcox J at [18].

9. In FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82 I distinguished the decision in Kelly v Apps in holding that an appeal from a decision of the Tenancy Tribunal was confined by s 58 of the Tenancy Tribunal Act 1994 (ACT) to questions of law. That section contains no provision comparable to that contained in subs 207(2) of the Magistrates Court Act. Accordingly, it seemed necessary to resolve the apparent conflict between its provisions and those of s 20 of the Supreme Court Act by reference to the usual principles of statutory construction. Where apparently conflicting provisions are contained within statutes of the same legislature, those principles include, of course, the generalia specialibus non derogant principle that where there is conflict between general and specific provisions, the specific provisions prevail: see, for example Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7_; Leon Fink Holdings Pty Ltd v Australian Film Commission_ (1979) 24 ALR 513. It has been suggested that the generalia specialibus rule should be observed more strictly when the apparently inconsistent provisions are found within a single Act than in separate enactments: see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 4th ed Butterworths, Sydney 1996 at 4.24. However, notwithstanding this observation, it seemed to me that appeals from the Tenancy Tribunal were governed by the specific provisions of s 58 of the Tenancy Tribunal Act 1994 rather than the more general provisions of s 20 of the Supreme Court Act 1933. Accordingly, I held that such appeals lie only in relation to questions of law.

10. My decision in FAI Properties Pty Ltd v Nationwide Travel Canberra was followed by Spender J in FAI Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58 and that decision was, in turn, followed by Connolly J in Harrison v Commissioner for Housing [2003] ACTSC 22.

11. However, in De Domenico v Marshall [2001] ACTSC 52 the appellant sought to rely not only on s 20 of the Supreme Court Act but upon s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self-Government Act), which provides as follows:

(1) The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.

(2) In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance.

(3) The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal.

12. The Self-Government Act is, of course, the Commonwealth statute which, like a constitution, confers and delineates the powers of the ACT legislature. It may be noted that subs 48A(2) authorises the Territory to confer further jurisdiction upon the Supreme Court but does not authorise it to reduce or limit the jurisdiction conferred by sub (1). The Supreme Court Act was also a Commonwealth Act until 1992 and the ACT Supreme Court (Transfer) Act 1992 (Cth), which provided for that Act to be taken to be a Territory enactment, both amended s 20 (formerly s 11) of the Supreme Court Act to its current form and inserted s 48A into the Self Government Act. Whilst s 20 of the Supreme Court Act thus provided that the Supreme Court "has" all original and appellate jurisdiction necessary for the administration of justice in the Territory, s 48A of the Self Government Act provided that the Supreme Court "is to have" such jurisdiction. In this context it seems clear that the future tense was adopted to make it clear that the Supreme Court would continue to have such jurisdiction notwithstanding the transfer of legislative power over the Supreme Court to the Territory. Hence, in my view, this broad jurisdiction is effectively entrenched by s 48A.

13. Section 28 of the Self Government Act expressly provides that a provision of a Territory enactment has "no effect" to the extent that it is inconsistent with a law of the Commonwealth in force in the Territory. Hence, the provisions of a Territory enactment cannot limit the effect of a Commonwealth law such as s 48A either expressly or by implication, whether arising from principles such as the generalia specialibus non derogant principle or otherwise.

14. Consequently, whilst I remain of the opinion expressed in FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd that a general provision of a territory enactment, such as that contained in s 20 of the Supreme Court Act, could be read down by reference to the more specific provisions, such as that contained in s 46(1) of the Administrative Appeals Tribunal Act, I have been obliged to conclude that s 48A of the Self Government Act cannot similarly be read down. On the contrary, s 48A must be given full force and effect notwithstanding any provision of an ACT enactment.

15. Both Higgins J, as he then was, in Rose v Snape [2000] ACTSC 115 and Connolly J in Harrison v Commissioner for Housing [2003] ACTSC 22, have referred to the potential complications which might ensue as a consequence of any finding that numerous provisions in ACT enactments purporting to limit rights of appeal were effectively rendered nugatory by the availability of an alternative source of jurisdiction provided by s 20 and the construction of that section adopted in Kelly v Apps. However, whilst the identification of such difficulties might cast further light on the intention of the ACT legislature as reflected in the provisions of territory enactments purporting to limit the court's appellate jurisdiction, it cannot provide a sound jurisprudential basis for reading down the provisions of a Commonwealth statute effectively entrenching such jurisdiction.

16. Nonetheless, whilst the provisions of subs 48A(1) are substantially similar to the provisions of s 20 of the Supreme Court Act, the Full Court, in adopting a broad construction of the latter section, was not constrained by the need to take into account any accompanying provision of the kind contained in subs 48A(2). As mentioned earlier, it is the Self-Government Act that confers and delineates the legislative power of the ACT Legislative Assembly and, despite the apparent breadth of jurisdiction entrenched by subs (1), it should not be assumed that the legislative power conferred by subs (2) was intended to be inconsequential. Hence, the word "necessary" in subs (1) should not, in my opinion, be construed so broadly that the provision contained in subs (2) would be effectively rendered nugatory or pointless, even if this conclusion requires a more restrictive approach than that adopted by the Full Court in relation to the same word in s 20 of the Supreme Court Act.

17. Whilst there is nothing in s 48A to suggest that the more general jurisdiction thereby provided may be exercised only in special or exceptional circumstances, it does appear that the Commonwealth had intended to limit the scope of the jurisdiction entrenched by subs (1) and that subs (2) was intended to both reserve to the Commonwealth and grant to the Territory significant power to confer further jurisdiction upon the court. In this context, the requirement that it be "necessary for the administration of justice in the Territory" must be seen as imposing a real and not merely a theoretical limitation. This limitation may be of particular significance in relation to appeals because it is by no means self evident that it is necessary for the administration of justice for the Supreme Court to entertain an appeal against every factual finding made by a tribunal when the parties have already had a full hearing on the merits.

18. However, the language employed in the section does not permit the definition of a clear line of demarcation and a decision to exercise or refuse to exercise jurisdiction under subs (1) may be dependent upon a value judgment made in the circumstances of the particular case. As a general principle, it is for the party prosecuting an action or appeal to establish jurisdiction. Hence, in my opinion, an appeal from the Administrative Appeals Tribunal will be limited to a question of law by virtue of s 46(1) of the Administrative Appeals Tribunal Act unless the appellant is able to establish that it is necessary for the administration of justice that the jurisdiction provided by s 48A be exercised.

19. In the present case, the grounds of appeal have been substantially confined to issues of law and, whilst Mr Kettle did submit that some of the issues raised may impinge upon questions of fact, the circumstances do not, in my opinion, warrant a conclusion that it is necessary to exercise jurisdiction under s 48A rather than that provided by s 46(1) of the Administrative Appeals Tribunal Act.

20. This conclusion substantially limits the scope of the present appeal.

21. Mr Kettle submitted that the term "serious medical or other reasons" should be construed ejusdem generis and that the Tribunal fell into error in failing to hold that any serious reason had to be at least related to the state of health of the respondent or members of his family. I am unable to accept this submission. Such a limited construction would effectively prevent the Commissioner from responding sensibly to a wide range of situations in which there may be compelling reasons for rehousing a family. For example, it would mean that the family of a child that had been sexually abused by a next door neighbour could not be urgently relocated even if the offender were released on bail and the child was in a state of constant fear.

22. It was conceded that the Tribunal's construction of the phrase was otherwise correct and, in any event, the meaning of the words "substantial reasons" is, in my opinion, a question of fact rather than one of law. The principle that the meaning of an ordinary English word or phrase, even if used in a statute, is generally a question of fact is well established.

23. The question of whether a particular set of facts comes within the description of such a word or phrase is also generally one of fact: see, for example Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7-8; Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491; Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 11-13.

24. Whilst Mr Kettle suggested that the Tribunal fell into error by comparing the respondent's circumstances with other decided cases rather than by applying relevant principles directly to the facts revealed in evidence, I have been unable to find any appealable error in the manner in which he approached the matter. Consequently, insofar as the appeal seeks to challenge the Tribunal's decision that the applicant be assigned to Priority Category 2, it must fail.

25. In deference to Mr Kettle's submissions, however, I would stress the need for such criteria to be considered in context.

26. The supply of public housing is necessarily limited and the objects of the Act suggest that it should be made available only to those "most in need". Yet even amongst those who fall into this category, some will obviously have even more acute or pressing needs than others. The priority categories have been established with the view to housing or rehousing people who have been able to demonstrate such pressing needs as justify a conclusion that they should be allocated or reallocated housing in preference to other people who have also been found to be among those "most in need" and who may have been on a waiting list for a substantially longer period of time. Hence, it is not merely a question of determining whether someone has a serious need which should be met by a beneficent government but, rather, whether the need is so substantial that it warrants permitting the applicant to effectively "jump the queue" and require other needy people to wait longer for their needs to be met. It is true, of course, that in other contexts beneficial legislation is interpreted liberally, but the benefits thereby bestowed on some are not normally accompanied by corresponding detriments to others.

27. A further difficulty arises from the fact that, whilst the Commissioner is likely to have a reasonable overview of the competing needs of those on waiting lists, and, perhaps, the benefit of a recommendation from an internal review committee, neither the Administrative Appeals Tribunal nor the Supreme Court is likely to enjoy those advantages. Those appearing on behalf of the Commissioner may seek to alleviate this problem by calling some evidence of the general level of need by people within each priority category but the extent to which that might be feasible is unclear. Ultimately, of course, the Tribunal must act upon its own independent assessment of the merits of the appellant's case but that does not mean that it must approach the issues before it without regard to the statutory context within which the relevant decision was made, or the implications which a reversal of that decision may have for others.

28. In making these comments I do not, of course, intend to offer any criticism of the manner in which the Tribunal approached the issues before it in the present case.

29. Before leaving the matter, I should mention one further issue of law which was raised by the appellant in fairness to the respondent. The Tribunal determined that the effective date of the listing should be 20 December 2001, which was the date upon which it concluded that the appellant should have been assigned to Priority Category 2. As Mr Kettle rightly conceded, the program requires that assistance be provided to applicants in the order in which their names appear on the register, and the registration date would have been the date of receipt of the application rather than the date upon which the Commissioner made a decision as to whether the applicant was entitled to priority. Mr Kettle also conceded that the application was actually received on 12 December 2001, though the Tribunal referred to the date of receipt as having been 14 December 2001. The decision to apply the date upon which the decision was made by the Commissioner clearly involved an error of law and, whilst it might be argued that the finding of fact in relation to the date of receipt should not be disturbed on an appeal of this kind, I think that the error would probably have been amended by the Tribunal on a "slip rule" approach had it not been for the error of law that led to the resolution of the issue on a different basis. Accordingly, in upholding the appeal on the ground of that error of law, I think it is appropriate to make an order reflecting the correct date.

30. Since the appeal was conducted ex parte there will be no order as to costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the appellant: ACT Government Solicitor

Counsel for the respondent: No appearance by the respondent