ADMINISTRATIVE LAW - Wednesbury unreasonableness - whether Tribunal unreasonable in application of its discretion

PRACTICE AND PROCEDURE - grounds of appeal - estoppel - whether issue if estoppel exists gives rise to pure question of law the proper subject of an appeal

Held: Question of whether estoppel arises is a mixed question of fact and law and no appeal lies

ESTOPPEL - creation - whether letter from respondent to appellant created an estoppel

Held: No estoppel existed because representation no longer active and no detrimental reliance

Housing Assistance Act 2007 (ACT)

Housing Assistance Regulations 2008 (ACT) regs 3A, 103A

Residential Tenancies Act 1997 (ACT) ss 7, 8, 47, 125, cl 94

Supreme Court Act 1933 (ACT) ss 9, 37E

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1984] 1 KB 223 applied

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 applied

Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 cited

Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 applied

Commissioner of Taxation v Hornibrook [2006] FCAFC 170; (2006) 156 FCR 313 discussed

Eastman v Commissioner for Housing in the ACT [2008] ACTSC 1 affirmed

Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 distinguished

Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 distinguished

Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd & Ors [2005] WASCA 106; (2005) 30 WAR 290 discussed

ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM A MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. This is an appeal from an order of the Master refusing the appellant leave to appeal from a decision of the Residential Tenancies Tribunal (the Tribunal) made on 18 May 2007 in which the Tribunal ordered:

1. That the residential tenancy agreement relating to the tenant's occupancy of premises at ... Jerilderie Court, REID in the Australian Capital Territory be terminated at 10am on 21 May 2007.
2. That the Applicants be granted vacant possession of the premises from the 21st day of May 2007.
3. That the tenant and any other person claiming a right of possession through the tenant's tenancy is to vacate the premises in accordance with this Order.

2. The appellant applied for leave to appeal from the Tribunal's orders pursuant to s 125 of the Residential Tenancies Act 1997 (ACT) (the Residential Tenancies Act), which was the relevant legislation at the date of the Tribunal's orders and which then provided:

125 Appeals from tribunal to Supreme Court

(1) A party to a proceeding before the Tribunal may appeal to the Supreme Court on a question of law from a decision of the Tribunal in the proceeding.

(2) The appeal may be brought only with the Supreme Court's leave.

3. The application for leave to appeal was heard by Master Harper who on 6 February 2008 ordered that:

1. The stay of the order of the Residential Tenancies Tribunal remains in place until further order of this Court.
2. The applicant pay the respondent's costs of the application.
3. Any steps by way of qualification or enforcement of costs be stayed until further order of this Court.

4. On the same day as Master Harper made those orders the appellant appeared before the Chief Justice and indicated to the Chief Justice that he intended to appeal against the order made by the Master refusing leave to appeal.

Direct that the oral statements of Mr Eastman's intention to initiate an appeal be taken as the institution of the appeal.

Note the Territory's undertaking to prepare all necessary documents for the appeal, other than the notice of appeal if that be required.

6. On 11 August 2009, nearly 18 months after Master Harper made his orders, the appellant filed a notice of appeal purporting to appeal from the Master's orders to the Court of Appeal.

7. That purported appeal was considered by the Court of Appeal which on 14 May 2010 declared the purported appeal incompetent: David Harold Eastman v Commissioner for Housing in the Australian Capital Territory [2010] ACTCA 12.

8. Immediately after the Court of Appeal made that declaration, the appellant applied to have the appeal which he said was instituted on 6 February 2008 heard by a single Judge of the Supreme Court pursuant to s 9(2) of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).

9. With the consent of the respondent I treated the appeal which the Chief Justice said was instituted on 6 February 2008 as an appeal to the Supreme Court of the ACT and made directions for disposition of the appeal, including a direction requiring Mr Eastman to file a fresh notice of appeal from the Master to a single Judge of the Supreme Court and a draft notice of appeal from the Tribunal to the Supreme Court in the event that the appeal from the Master were to be successful.

10. I indicated that I would hear Mr Eastman's appeal from the Master first and if I were of the opinion that leave should be granted hear Mr Eastman's appeal from the Tribunal to the Supreme Court.

11. On 24 May 2010 I heard the appeal from the Master and at its conclusion announced that I was of the tentative view that the appeal should be dismissed but that I would reserve my decision. I indicated at that time that if my tentative view became my final view I would make an order dismissing the appeal but I would make a further order extending the stay order made by the Master for a period of 14 days to enable Mr Eastman to consider my reasons and, if dissatisfied with those reasons, appeal to the Court of Appeal. For the reasons which follow, the appeal will be dismissed. I will make the consequential order.

12. Before embarking upon a consideration of the contentions which have been put, I should mention that during the hearing of the appeal I made an order without objection from Mr Eastman substituting the Commissioner for Social Housing for the ACT Commissioner for Housing as the respondent to this appeal. That order was made necessary by the enactment of the Housing Assistance Act 2007 (ACT) (the Housing Assistance Act) which established a Commissioner for Social Housing and abolished the position of ACT Commissioner for Housing. In the Regulations made under the Housing Assistance Act (Housing Assistance Regulations 2008 (ACT)), any right or asset vested in the Commissioner under the previous Act vests in the Housing Commissioner: Reg 3A. In those circumstances, the demised premises became an asset of the Commissioner for Social Housing.

13. Regulation 103A provides for transitional provisions and it provides that, if before the commencement of the section an application to a court had been made and had not been concluded, the Commissioner for Social Housing was taken to be substituted for the ACT Commissioner for Housing for the purpose of the proceeding. The Housing Assistance Act and Housing Assistance Regulations came into force on 19 March 2008, so it follows that the appeal which the parties and Chief Justice Higgins have treated as initiated on 6 February 2008 was an application to the Court which had not ended. Nothing turns on the substitution of the Commissioner of Social Housing for the former ACT Commissioner for Housing.

14. On 24 December 1981 the appellant became a tenant or sublessee of a flat at Jerilderie Court, Reid as a lessee of the Commonwealth of Australia under the Leases Ordinance Act 1918-1972 (Cth). After the ACT gained self-government in 1989 the ACT Commissioner for Housing became for all relevant purposes the lessor of the premises and Mr Eastman thereafter held the premises on lease from the Commissioner.

15. At that time Mr Eastman signed an acknowledgement of tenancy which included a clause which provided:

1. The Commonwealth may notwithstanding any law or rule of law to the contrary determine the said tenancy at any time during the currency of the second period of the said tenancy or any successive period of the tenancy by giving me fourteen days previous notice in writing.

16. On 7 November 1995 Mr Eastman was convicted of the murder of Colin Winchester, the then Deputy Commissioner of Police in the ACT and sentenced to life imprisonment. He was immediately taken into custody and has remained in custody since that time. His appeal against conviction to the Full Federal Court was dismissed on 25 June 1997: Eastman v The Queen (1997) 76 FCR 9. He applied for and was granted special leave to appeal to the High Court from the order of the Federal Court dismissing his appeal but on 25 May 2000 his appeal to the High Court was dismissed: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1. In their reasons members of the High Court raised the question of the applicant's fitness to plead at his trial but did not decide that question.

17. On or about 11 September 1996 the then ACT Commissioner for Housing apparently decided to terminate the tenancy. The appellant wrote to the Commissioner on 18 September 1996 in response to the Commissioner's decision appealing against that decision and advising:

My appeal has been set down for 21/10/96, and I expect a decision before Christmas. If that decision should happen to be adverse, I will surrender the flat. However, the legal advice I have received is that my prospects of success are very high.

18. On 26 May 2000 the appellant wrote to the Registrar of the Supreme Court advising that he wished to lodge an application immediately for a judicial inquiry under s 475 of the Crimes Act 1900 (ACT) (the ACT Crimes Act) and seeking information in relation to that inquiry.

19. On 2 June 2000 the Registrar of the Supreme Court of the ACT responded to that letter enclosing a form of petition under s 475 of the ACT Crimes Act and providing certain information.

20. On 9 June 2000 the appellant wrote to the Registrar enclosing a petition under s 475 of the ACT Crimes Act "to be sent to the Chief Justice". The petition sought the establishment of a judicial inquiry into the appellant's conviction.

21. On 12 June 2000 the appellant's solicitor wrote to the then Attorney-General "to put you on notice that Mr Eastman will seek a fresh judicial inquiry".

22. On 21 July 2000 the appellant's solicitor wrote to the Chief Justice of the Supreme Court of the ACT asking him not to consider Mr Eastman's letter to the Court until such time as full and proper submissions could be prepared.

23. On 26 July 2000 the Registrar of the Supreme Court wrote to the appellant advising the appellant that the Chief Justice had directed him to inform the appellant that the Chief Justice had made an administrative decision not to direct an inquiry under s 475. The Registrar's letter advised the appellant that the appellant had the alternative of presenting his petition to the Executive which had the responsibility of the ultimate disposal of the matter.

24. On 27 July 2000 the Housing Review Committee which had the responsibility of hearing appeals against the Commissioner's decisions met and recommended that the appellant's appeal against termination of tenancy be upheld. The Committee recommended that the appellant continue to:

• retain his existing tenancy until such time as it is known if a judicial inquiry will proceed, and if it does proceed, until its outcome is known
• be charged a rebated rental despite his stated wish to pay full market rental.

Given all of the above, the committee is persuaded that

• the ongoing stability of Mr Eastman's mental health may be very much dependent on maintaining tenure of his flat
• the appeal process is not yet exhausted and until it is, by the success or failure of a judicial inquiry, Mr Eastman should be allowed to maintain his tenancy at a rebated rental
• the process has gone this far and ought, on the grounds of natural justice, be allowed to proceed to the completion of the judicial inquiry before any further review.

26. On 5 September 2000 Ms Bernadette Maher, a delegate of the Commissioner for Housing wrote to the appellant advising that the Committee had recommended to the Commissioner that the appellant's appeal be upheld. She wrote:

I have agreed with the recommendation and approved for you to retain your tenancy of ... Jerilderie Court, Reid until such time as the ACT Government has made a decision on your application for a judicial review. Once the decision on your application for a judicial review has been made, your tenancy rights will be reviewed.

27. On 22 February 2001 the Director of Housing Services, Helen Fletcher wrote to the appellant:

I refer to your tenancy of ..., Jerilderie Court, Reid and your letter of 18 September 1996 in which you advise that you would surrender the flat if you received an adverse decision on your appeal to the High Court.

ACT Housing agreed not to proceed with legal action to terminate your tenancy of the Jerilderie Court unit pending the outcome of your High Court appeal.

The High Court rejected your appeal in May 2000. While I understand that you have sought a judicial review this process is outside the standard appeal mechanism. Your solicitor, Mr Bernard Collaery, advised the Housing Review Committee in July 2000 that the Judicial Review process would take six months. This period has elapsed and I must now ask that you honour your undertaking and return the keys to ..., Jerilderie Court, Reid.

28. On 1 May 2001 the Assistant Manager, Northside Tenancy Team wrote to the appellant enclosing a "Notice to Vacate (Termination Notice)". The Termination Notice provided that the ACT Commissioner for Housing intended to apply to the Residential Tenancies Tribunal for a termination and possession order requiring him to vacate the premises if he did not vacate the premises by 1 November 2001. The grounds relied on in the Termination Notice were pursuant to clause 94 of the Prescribed Terms of the Residential Tenancies Act. The Termination Notice gave the appellant six months' notice.

29. In the letter enclosing the Termination Notice, the appellant was advised that he could ask for a review of the decision by a Senior ACT Housing Officer. He was also advised that any appeal should be brought within seven days of the date of the letter.

30. On 8 May 2001 the appellant's solicitor wrote to the Manager, Northside Tenancy Team seeking a review of the decision to terminate the appellant's tenancy of the premises on the following grounds:

(a) Estoppel by virtue of an undertaking given on behalf of the ACT Government by Ms Bernadette Maher.

(b) The decision is oppressive.

(c) The decision is unreasonable given the circumstances.

(d) There has been no breach of the prescribed terms or of the covenants expressed and implied.

31. On 31 May 2001 the appellant wrote to the Chief Justice making application under s 475 of the ACT Crimes Act to set up a judicial inquiry into "unsafe conviction for murder". In that communication the appellant wrote:

Since writing to you on this subject on 9.6.00, and reviewing your Registrar's reply of 26.7.00 further compelling evidence has come into my possession of which I was previously unaware, which amply warrants a renewal of my application to you for the setting up of a Judicial Inquiry.

The appellant identified the grounds upon which he relied.

32. On 1 June 2001 Mr Bob Hutchinson, Executive Director of ACT Housing made a note to file:

I have reviewed the David Eastman file and Bernard Collaery's letter of 8 May 2001 and have determined that the decision to terminate Mr Eastman's tenancy should stand. I refer to Mr Collaery's letter at folio 238, and I am of the view that in relation to the points raised in that letter that:

Point (a) Mrs Bernadette Maher (sic) undertaking has been expunged by the advice I have received no formal application for a judicial inquiry has been received by the Executive and that a reasonable time has elapsed for the lodgement of such an application.

Point (b & c) are subjective.

Point (d) Residential Tenancies Tribunal will make that decision.

33. On the same day Mr Hutchinson wrote to the appellant's solicitor saying:

I have reviewed Mr Eastman's file and have considered the contents of your letter of 8 May 2001 and have determined that the decision to terminate Mr Eastman's tenancy should stand.

The case will now be referred to the Residential Tenancies Tribunal for a hearing date.

34. On 7 August 2001 Miles CJ directed that an inquiry be held under s 475 of the ACT Crimes Act.

35. On 10 August 2001 the appellant wrote to the Court Counsellor of the ACT Magistrates Court for the attention of the Chief Justice requesting an inquiry into the evidence of witnesses at his trial and his fitness to plead at trial.

36. On 8 November 2001 the Commissioner for Housing applied to the Tribunal for a termination and possession order to have effect as a warrant. The application was accompanied by a statement of particulars. The appellant had been told in the Termination Notice given on 1 May 2001 that such an application would be made if he did not vacate the property by 1 November 2001.

37. Such an application is authorised by s 47(1) of the Residential Tenancies Act which provides:

(1) On application by a lessor, the Tribunal may make a termination and possession order if satisfied that -

(a) a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms);

(b) the lessor has served a termination notice on the tenant based on that ground; and

(c) the tenant has not vacated the premises as required by the termination notice.

38. On 26 November 2001 the Tribunal made an order terminating the tenancy as at 10 December 2001 and granting vacant possession to the Commission, and a further order that any other person claiming right of possession through the tenant's tenancy is to vacate the premises in accordance with its order and that the order have effect as if it was a warrant for eviction.

39. On 28 November 2001 the appellant appealed to the Supreme Court against the decision made by the Tribunal on 26 November 2001 on two grounds; first, that the Tribunal had erred in hearing the matter ex parte; and secondly, that the Commissioner for Housing was estopped by the written undertaking which had been given by his delegate on 5 September 2000.

40. On 20 March 2001 the ACT Director of Public Prosecutions (DPP) commenced two actions in the Supreme Court seeking to restrain the conduct of any inquiry under s 475 of the ACT Crimes Act. On 3 May 2002 Gray J dismissed the DPP's applications: Director of Public Prosecutions v Eastman (2002) A Crim R 588. The DPP appealed and on 3 July 2002 that appeal was allowed by the Full Court of the Federal Court: Director of Public Prosecutions v Eastman [2002] FCAFC 209; (2002) 118 FCR 360. Mr Eastman sought leave to appeal to the High Court which was granted and on 28 May 2003 his appeal from the orders of the Full Court of the Federal Court was allowed: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318.

41. On 6 October 2005 Miles AJ (as he then was) delivered his report pursuant to s 475 of the ACT Crimes Act.

42. On 22 February 2006 the Chief Minister of the ACT, John Stanhope MLA wrote to the appellant in the following terms:

I refer to my letter of 7 December 2005.

The Executive has fully considered the report of the Honourable Geoffrey Alan Miles. His Honour found that:

(1) there was no miscarriage of justice in your trial; and

(2) it was not shown that it was likely that you were unfit to plead.

Accordingly, the Executive is taking no further action in connection with the matter of your fitness to plead.

43. On 2 June 2006 Ryan J disposed of the appeal brought by the appellant against the Tribunal's orders of 26 November 2001. He allowed the appeal and remitted the Commissioner's application to the Tribunal. His Honour quashed the decision principally on the ground that the appellant had not been accorded procedural fairness: Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52; (2006) 200 FLR 272.

44. It was put to his Honour that even if Mr Eastman had not been accorded procedural fairness the matter should not be remitted to the Tribunal because inevitably the Tribunal would arrive at the same result because there was no discretion to do otherwise. That submission required his Honour to consider whether the Tribunal was given a discretion by s 47 of the Residential Tenancies Act to make any other order than a termination and possession order. His Honour discussed the relevant authorities and said at 285:

In the light of the authorities canvassed above and having regard to the range and variety of grounds for termination afforded by the prescribed terms in Sch 1 to the Tenancies Act as founding a termination and possession order under s 47(1), I am unable to conclude with confidence, without the benefit of full argument on the point, that the Tribunal is bound to make such an order upon being satisfied of each of the matters enumerated in s 47(1)(a), (b) and (c). That is not to say that the discretion which the alternative construction allows to the Tribunal is unfettered.

He then discussed the width of the discretion and concluded at 285-86:

In particular, I am not persuaded that any estoppel arising from the recommendations of the Committee or the decision taken in reliance on that recommendation by Ms Maher as a delegate of the Commissioner would compel the Tribunal to exercise its presumptive discretion by declining to make a termination and possession order.

In the first place, as noted at [6], a decision by the Commissioner to terminate a tenancy is excluded by cl 20(3) of the Program from the purview of the Committee. More significantly, a decision by the Commissioner to terminate a tenancy under the Housing Assistance Act is one taken in the exercise of a public discretion. It may be taken from time to time in the light of existing claims for assistance and the Commissioner's assessment of the priority which should be accorded to those claims. It follows that the Commissioner cannot, by any form of estoppel, including one arising from findings of the Committee or statements of the Commissioner or his delegate, preclude himself or any successor from exercising the discretion at all, or in a particular way, in the future; see Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 at 200 and the cases there cited. In the same case, Gummow J observed (at 217):

Assuming that (i) the doctrine of promissory estoppel were available in the present case, and (ii) that it is an essential ingredient in such an estoppel for the party relying upon it to show that he had so changed his position on the faith of the representation, that he would suffer detriment if the estoppel were not enforced, and that (iii) there was a representation that if the respondent gave no further cause for his deportation, he would be free to continue his life in Australia, nevertheless even then I would not be persuaded that the respondent had changed his position in any relevant sense upon the faith of that representation. How can the respondent point to any change of position on his part which will operate to his detriment if the appellant's deportation order of 28 January 1988 stands? Is the respondent to be heard to say that but for the representation upon which he seeks to rely he would have given further cause for his deportation or otherwise acted in a reprehensible manner? Counsel for the respondent pointed only to alleged "emotional or psychological" detriment which the respondent would suffer if the deportation order were to be implemented, but that, in my view, could not suffice. It would not flow from any change of position which occurred on the faith of the alleged representation before the making of the second deportation order.

In my view, those observations can be paraphrased to apply with equal force to the present case. How, it may rhetorically be asked, can Mr Eastman point to any change of position on his part which would operate to his detriment if the assurance in Ms Maher's letter of 5 September 2000 were resiled from? That is not to say that the recommendations of the Committee and Ms Maher's consequent letter are matters which the Tribunal could not take into account in exercising the discretion which I have imputed to it. However, the considerations outlined above are sufficient to dispose of Mr Eastman's contention that the doctrine of estoppel compels the Court to substitute for the orders of the Tribunal an order that the Commissioner's application for termination of Mr Eastman's tenancy and possession of the premises be refused.

45. His Honour reached the conclusion that Mr Eastman's claim that the respondent was estopped had to be rejected because the respondent could not be estopped by his own actions from exercising his statutory function and, in particular, his statutory discretion.

46. On 9 May 2007 I dismissed an application by the appellant to quash the decision of Miles AJ made on 6 October 2005: Eastman v The Honourable Jeffery Alan Miles [2007] ACTSC 27. On the same day I dismissed an application by the appellant to set aside the decision of the Executive which was communicated by the Executive to the appellant by the Chief Minister of the ACT on 22 February 2006.

47. On 21 April 2008 the Court of Appeal of the ACT dismissed appeals from my orders dismissing the appellant's applications: Eastman v Australian Capital Territory [2008] ACTCA 7; (2008) 163 ACTR 29.

48. On 17 October 2008 the appellant's application for leave to appeal from the orders of the Court of Appeal dismissing the appeals from me was itself dismissed: Eastman v Australian Capital Territory; Eastman v Miles [2008] HCASL 553.

49. In the meantime, on 18 May 2007, after conducting the further hearing ordered by Ryan J, the Tribunal made the following orders:

1. That the residential tenancy agreement relating to the tenant's occupancy of premises at ... Jerilderie Court, Reid in the Australian Capital Territory be terminated at 10am on 21 May 2007 (sic).
2. That the applicants be granted vacant possession of the premises from the 21st day of May 2007.
3. That the tenant and any other person claiming a right of possession through the tenant's tenancy is to vacate the premises in accordance with this order.

50. The Tribunal found that the Commissioner had given notice in accordance with clause 94. It found that clause 94 contemplated that the Commissioner had the right to terminate a tenancy (without any fault or default on the part of the tenant).

51. The Tribunal rejected a claim by the appellant that the letter written by Ms Maher on 5 September 2000 precluded the Commissioner from seeking the orders of the Tribunal and further rejected his claim that the letter amounted to an estoppel.

52. The Tribunal found that even if the letter did amount to an estoppel the appellant had not acted to his detriment in reliance upon the representation contained in the letter of 5 September 2000.

53. The Tribunal found that even if an estoppel had been made out, "the circumstances of the estoppel were met by the completion of the Judicial Review" and the decision of the executive as set out in the letter written by Mr Jon Stanhope, Chief Minister for the Australian Capital Territory, dated 22 February 2006".

54. In its reasons the Tribunal said in a consideration of Mr Eastman's claim of estoppel that Mr Eastman had asserted that he had continued to pay many thousands of dollars in rent based on his assumption that the tenancy was protected from termination. Later in its reasons the Tribunal said that Mr Eastman was not able to point to any conduct or action on his part that would amount to detrimental reliance by him on the assumed state of affairs.

55. The Tribunal recognised that it had a discretion whether to make the orders sought by the Commissioner and said that it had:

... taken into account the submissions made by Mr Eastman in relation to matters which ought to be considered in the exercise of its discretion in relation to the making of a termination and possession order pursuant to s 47. The matters considered are summarised above.

56. Mr Eastman applied for leave to appeal to the Supreme Court against the orders made by the Tribunal pursuant to s 125 of the Residential Tenancies Act. Section 125 is referred to in [2]. In that application, which was heard by the Master, Mr Eastman contended that two questions of law arose:

Whether the respondent's delegate created an estoppel on 5 September 2000.

Whether the Tribunal failed to exercise a discretion in the appellant's favour in circumstances where no reasonable person could have failed to exercise it.

57. On 6 February 2008 the Master refused Mr Eastman's application for leave to appeal. He ordered Mr Eastman to pay the costs of the application. He made an order continuing a stay order made by the Tribunal and also made an order staying his own order for costs: Eastman v Commissioner for Housing in the ACT [2008] ACTSC 1.

58. The Master concluded that a finding of estoppel was a question of mixed fact and law and could not be a question of law within the meaning of s 125(1). He found that, in any event, if a finding of estoppel was a question of law within the meaning of s 125, the Commissioner could not be estopped from exercising the Commissioner's statutory duty by any previous statement of the Commissioner or the Commissioner's delegate. In relation to the second matter identified by the appellant as a question of law, the Master found that the appellant was unable to point to anything about the exercise of the discretion which would come within the purview of Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1984] 1 KB 223 (Wednesbury). The Master concluded that leave to appeal should be refused because if leave were granted the appeal would be bound to fail.

59. An appeal lies from the Master's orders which were interlocutory to a single judge: s 9(2) and s 37E(2)(a)(i) of the Supreme Court Act.

60. The grounds of appeal to this Court from the Master's orders which were amended on the day of the hearing are that the Master erred:

(a) in finding that the question whether Delegate Maher's letter of 5-9-00 created an estoppel was not "a question of law" in the sense of section 125(1) of the A.C.T. Residential Tenancies Act 1997;

(b) in finding that the Appellant's estoppel argument would be doomed, even if the Court had power to hear and determine it;

(c) in failing to find that "a question of law" arose from the Tribunal's having found, contrary to the evidence, that the Appellant was not able to point to any detrimental reliance by him on Delegate Maher's letter of 5-9-00; and

(d) in finding that the Appellant's argument of unreasonable refusal by the Tribunal to stay the termination and possession order it made on 18-5-07, until the Appellant's litigation to quash his murder conviction is finally rejected, or until the Respondent refunds the rent paid by the Appellant since 5-9-00, whichever may occur first, was bound to fail.

61. The appellant seeks an order "quashing" the Master's orders and an order for leave to appeal against the Tribunal's orders made on 18 May 2007.

62. Before I address the appeal itself I need to address one aspect of the Master's reasons which were not subject to attack or criticism but, nevertheless, is deserving of comment. In [15] of his reasons the Master said:

An appeal from the Tribunal to this Court has always been limited to questions of law. The requirement for leave was introduced by the Court Procedures (Consequential Amendments) Act 2004. The Residential Tenancies Act was one of a number of Acts so amended. The amendments were stated to be aimed at improving court procedures as a precursor to the harmonisation of the rules of this Court and those of the Magistrates Court, an objective which was achieved with the making of the Court Procedures Rules 2006. The Attorney-General's explanatory statement to the Legislative Assembly stated that the purpose of the amendments to the legislation governing Tribunals was "to streamline and standardise the appeal process to the Supreme Court". No specific mention was made in the explanatory statement or the second reading speech of the rationale for the introduction of the requirement for leave to appeal. I made reference to some of the applicable considerations in Class Constructions (Aust) Pty Ltd v Conservator of Flora and Fauna [2005] ACTSC 103. I referred to the guidelines formulated by the Supreme Court of Victoria in relation to leave to appeal from an interlocutory order of a single judge in Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431. Some of those considerations were that there was a doubt about the correctness of the decision and that an injustice would be done by allowing it to stand. Leave would more readily be given where the interlocutory decision had effectively terminated the applicant's rights. Leave was much less likely to be granted where the interlocutory order related only to a question of practice or procedure.

63. In my opinion, Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 has no application in a consideration of an application for leave to appeal from a decision of the Tribunal under s 125 of the Residential Tenancies Act. Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 was concerned with an application for leave to appeal from an interlocutory order. In that case the Full Court of the Supreme Court of Victoria laid down the test which should be applied on such applications. The case stands for the proposition that on an application for leave to appeal from an interlocutory decision the applicant must establish that:

(a) the decision complained of is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and

(b) whether a substantial injustice would result if leave were refused supposing the decision to be wrong.

64. However, that test has no application in considering the question of leave to appeal under s 125.

65. Section 125 provides its own test which is that the ground or grounds of appeal raise a question of law. The bifurcated test in Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 is not relevant in determining whether leave should be granted under s 125.

66. It may be that a decision of the Tribunal is attended by doubt and it may be that the applicant would suffer an injustice if the decision were allowed to stand, but that is not a relevant consideration on an application for leave to appeal.

67. The statutory criterion for an application under s 125 which must be made out is whether the applicant can identify a question of law. To obtain leave the applicant also needs to show at least an arguable case that the Tribunal erred in its consideration of that question of law. Finally, an applicant needs to show that if the question of law were determined in the manner contended for by the applicant the decision of the Tribunal might have been different in the sense that it might have been more favourable to the applicant: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason CJ at 353 and Toohey and Gaudron JJ at 384 in dealing with an "error of law".

68. At the relevant time the tenancy agreement between the parties was regulated by the Residential Tenancies Act. That Act provided for a residential tenancy agreement to contain prescribed terms. Section 7 provided:

7 A Residential Tenancy Agreement -

(a) shall contain, or shall be taken to contain, terms to the effect of the prescribed terms; and

(b) may contain any other term -

(i) that is consistent with the prescribed terms; or

(ii) that is inconsistent with the prescribed terms if the term has been endorsed by the Tribunal under section 10.

Any term of a Residential Tenancy Agreement -

(a) that is inconsistent with a prescribed term; and

(b) that has not been endorsed by the Tribunal under section 10 is void.

70. The Tribunal had not endorsed any terms inconsistent with the prescribed terms. "[P]rescribed terms" is defined in the Act as the terms set out in the Schedule. The Schedule includes clause 94, which provides:

1. The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate the premises at the expiration of the notice provided that -

(a) the notice is for 26 weeks; and

(b) the notice does not require the tenant to vacate the premises during a fixed term.

71. The effect of clause 94 is to allow the landlord to give six months' notice requiring the tenant to vacate the premises without the landlord having to give any reason for the request.

72. If the Commissioner makes a request for a termination and possession order, the Tribunal is empowered by s 47 of the Residential Tenancies Act to make such an order if satisfied that:

(a) a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and

(b) the lessor has served a termination notice on the tenant based on that ground; and

(c) the tenant has not vacated the premises as required by the termination notice.

73. It was not disputed on this appeal or before the Master that the Commissioner was entitled to give a tenant six months' notice requiring the tenant to vacate the premises pursuant to clause 94 without having to give any reason for the giving of such notice. Nor was it disputed that the Tribunal could make a termination and possession order if satisfied that the Commissioner had served a termination notice on the tenant in the prescribed form and the tenant had not vacated the premises as required by the notice. A termination and possession order is defined to mean "an order of the Tribunal terminating a residential tenancy agreement and granting vacant possession of the relevant premises to the applicant for the order".

74. The two issues which were agitated were those that were identified as the questions of law before the Master.

75. The purpose of s 125 is to require an applicant to identify a question of law which amounts to an error of law before it can invoke the jurisdiction of the Supreme Court. Because this Court's jurisdiction is limited to a consideration of a question of law which amounts to an error of law, it follows that the Act contemplates that the decisions of the Tribunal on questions of fact will be final. The Act contemplates that this Court's jurisdiction will be limited to circumstances where a question of law was raised and the Tribunal erred in determining that question and the Tribunal's error led to it making orders which it ought not to have made. An error of law occurs where the Tribunal was called upon to decide a question of law and reached a wrong decision on that question. Because an appeal is limited to a question of law, the subject matter of the appeal itself is the question of law which is identified as having been wrongly decided.

76. The question of law must be identified precisely: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321. A question of law is a narrower question than an appeal which involves a question of law. In the latter case the question of law does not need to be the subject matter of the appeal but needs to be only a consideration in the appeal. Because under s 125 the Court's jurisdiction is constrained by the identification of a question of law, the question must be stated precisely and must not include questions which are not questions of law. For example, a purported appeal which raises mixed questions of fact and law is not a question of law within the meaning of s 125 of the Residential Tenancies Act: Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 at 527.

77. The first question which is raised is whether the letter written by Ms Maher on 5 September 2000 created an estoppel. It was the appellant's contention that in the circumstances which have been identified the writing of such a letter meant that the respondent was constrained from seeking to determine the tenancy or recover the premises until such time as the ACT Government had made a decision on the appellant's application for a judicial review.

78. The Master found, as I have said, that the estoppel issue was not capable of giving rise to a pure question of law and with that opinion I respectfully agree.

79. The conclusion that an estoppel has arisen in any particular case depends upon a factual inquiry and factual findings. An estoppel of the kind which the appellant relied upon will only arise where a party (the first party) can establish that it would be unconscionable for another party (the second party) to insist on his or her strict legal rights in circumstances where the second party has induced the first party to assume that a different legal relationship would exist between them and the second party knew that the first party would act or refrain from acting on that assumption, and if as a result the first party would suffer detriment unless the assumption were maintained.

80. The question whether an estoppel arises therefore must be determined by reference to an examination of the facts. First, did the party against whom the estoppel is asserted say or do something which led the party claiming the estoppel to assume that the other party would not insist upon his or her strict legal rights? Next, did the party asserting the estoppel change his or her position as a result of the assumption? Lastly, did that change of that position cause the party asserting the estoppel to suffer detriment?

81. Whether such an estoppel arises depends upon a determination of each of those issues which requires an examination of the surrounding facts and circumstances. The Master said that a finding of estoppel would always involve the determination of mixed questions of law. It may not be necessary to put the proposition so widely. It may be enough to say that in a case such as this the question as to whether an estoppel arose is a mixed question of fact and law.

82. In Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd & Ors [2005] WASCA 106; (2005) 30 WAR 290, the Court of Appeal in Western Australia was called upon to consider whether the respondent was entitled to raise a new defence or whether the respondent was estopped.

83. In his reasons Steytler P said in answer to the claim of estoppel:

However, the issues of waiver, election, estoppel and good faith involved mixed questions of fact and law. Moreover, those issues are quite complex.

84. The respondent also relied upon a decision of the Full Court of the Federal Court in Commissioner of Taxation v Hornibrook [2006] FCAFC 170; (2006) 156 FCR 313. Justice Gyles said at 323:

In my opinion, the contention as to estoppel sought to be advanced in this proceeding is misconceived. It is inappropriate to be raised for the first time on appeal to the Full Court. It is a mixed question of fact and law (see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1). For the same reason, it is inappropriate to be raised on appeal on a question of law pursuant to s 44 of the AAT Act (HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291 at 67).

85. It was the respondent's contention which the Master accepted that those two authorities stood for the proposition that in all circumstances the question of whether or not an estoppel arises is a mixed question of fact and law.

86. As I have said, it is probably not necessary to state the proposition so widely. It is enough to say that in this case the question of whether or not an estoppel arose was a mixed question of fact and law, and therefore not a question of law within the meaning of s 125.

87. But even if it was a pure question of law, which I reject, and the statement or representation made by Ms Maher could if all other necessary elements were made out amount to an estoppel, there are two reasons why no estoppel was binding upon the respondent at the time the matter came to be considered by the Tribunal. First, because any statement or representation made in the letter of 5 September 2000 was spent. The statement or representation was that the Commissioner would allow the appellant to retain his tenancy "until such time as the ACT Government has made a decision on your application for a judicial review. Once a decision on your application for a judicial review has been made, your tenancy rights will be reviewed."

88. That seems to me a clear and unambiguous statement or representation that the appellant could retain his tenancy until the ACT Government decided upon his application for judicial review. Once a decision had been made by the ACT Government adversely to the appellant, the Commissioner would review the appellant's tenancy rights.

89. A decision was made by the ACT Government on 22 February 2006 and that was to take no further action in connection with the appellant's fitness to plead. In my opinion, once that decision was made, any statement or representation made by Ms Maher to the effect that the appellant could retain his tenancy ceased to be binding upon the Commission assuming it had been previously binding.

90. The appellant challenged that decision by an application to have the decision quashed. However, the representation was not to the effect that the Commissioner would allow the appellant to retain his tenancy until such time as the ACT Government made its decision and all challenges to that decision had been exhausted. The statement or representation could not be understood to be any wider than its literal terms.

91. But in any event, even if I am wrong about that, the fact is that at the time that the Tribunal came to consider the Commissioner's application I had dismissed the appellant's application to quash the ACT Government's decision. Of course, the appellant would contend that after that date he appealed from my order dismissing his application to quash the ACT Government's decision but, in due course, the appeal and the application for leave to appeal were dismissed.

92. Even if the representation meant that the ACT Government could not resile from that representation until such time as all appeals and applications for leave to appeal had been exhausted, it is now the fact that all challenges have been exhausted and, in those circumstances, in the exercise of the Court's discretion, leave to appeal would be refused because inevitably if the matter were returned to the Tribunal the Tribunal would arrive at the same decision.

93. Secondly, because the appellant could not make out any detrimental reliance upon the statement or representation made. The appellant claimed that as a result of Ms Maher's statement or representation he paid rent over the period between the making of that statement and the hearing of the Tribunal. He continued to pay the rental due on the apartment which, in total, amounted to tens of thousands of dollars. He says he thereby suffered detriment because he would not otherwise have paid the rent.

94. I accept the appellant paid the moneys claimed. Indeed, there was no dispute about payment, although the precise figure was not agreed but that is not important.

95. However, I do not accept that he paid the rent in reliance upon the statement or representation. The appellant was obliged to pay the rental due if he wanted to retain the tenancy. If he did not pay the rental due under the tenancy he could not retain the tenancy whatever statement or representation was made by Ms Maher. He did not alter or change his position in reliance upon her statement or representation. The appellant cannot prove detrimental reliance.

96. I therefore do not accept, notwithstanding that the appellant has paid rent in the period described, that he has changed his position to his detriment in reliance upon Ms Maher's statement or representation. He cannot make out a necessary element of the plea of estoppel.

97. There are therefore two reasons why there was, even if the Commission was capable of being estopped from exercising his discretion, no estoppel operating to prevent the Commissioner proceeding in the way that the Commission did.

98. The analysis which I have undertaken serves to confirm the first point made; that the question whether an estoppel arose was a mixed question of fact and law.

99. The Master also referred to Ryan J's dicta, to which I have made reference earlier in these reasons (at [44]), and reached the conclusion that Mrs Maher was not capable of acting in a way which would give rise to an estoppel because, as a delegate of the respondent, she had a statutory duty and statutory discretion to discharge which could not be curtailed by her own actions. After citing that dicta the Master said that the estoppel argument would be doomed even if the Court had the power to hear and determine an appeal about it.

100. Justice Gummow's reasons in Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 show that it is not in every case where a public officer has made a statement or representation that has been relied upon by a party that the Court would deny that an estoppel could arise. In some cases where the public officer is acting within power and the statement or representation has only operational effect rather than policy effect, it may be that an estoppel could arise. In this case, the representation did not impact upon a future policy but was operational in nature in that the representation was simply that the Commissioner would not enforce a right that otherwise the Commissioner had to regain the tenancy during a particular period. Such a statement does not operate to fetter the Commissioner's discretion as to the exercise of his statutory powers generally, but only in relation to the operation of those statutory powers in relation to one tenant. In those circumstances it is therefore, in my opinion, by no means certain that the Commissioner or the Commissioner's delegate could not make a representation which would amount to an estoppel in private law.

101. Mr Mossop, who appeared for the respondent and who I might say made very helpful submissions, contended that because of the relevant legislative regime the Commissioner or the Commissioner's delegate could not by conduct or representation create an estoppel of the kind contended for by the appellant.

102. Section 7 of the Residential Tenancies Act which is referred to in [62] of these reasons provided that a residential tenancy shall be taken to contain terms to the effect of the prescribed terms and may contain any other term consistent with the prescribed term, and only contain an inconsistent term if the term has been endorsed by the Tribunal.

103. Clause 94, which is referred to in [64] of these reasons, is a prescribed term and allowed the Commissioner to require the tenant to vacate the leased premises at the expiration of the notice provided the notice is for 26 weeks. As I have explained in [65], no reason is required.

104. Section 8 of the Residential Tenancies Act, which is referred to in [63] of these reasons, provided that any term inconsistent with a prescribed term which has not been endorsed by the Tribunal is void.

105. Section 4(2) of the Residential Tenancies Act at the time provided that ss 43, 47, 48 and 71(1)(a)(ii) applied to all residential tenancy agreements. Section 43 empowered the Tribunal to terminate a residential tenancy if the lessor has breached a prescribed term. Section 47 allowed for termination if the Commissioner relied on clause 94 and s 48 empowered the Tribunal to make a termination and possession order.

106. Mr Mossop contended that Ms Maher's letter of 5 September 2000 was inconsistent with clause 94 and therefore not capable of creating an estoppel. His argument was that because the Commissioner could not include a term in a residential tenancy which was inconsistent with clause 94, the Commissioner could not create an estoppel which had the effect of a term which is inconsistent with clause 94. His argument was to the effect that any estoppel of the kind contended for required the Commissioner to do an act or make a representation which was ultra vires the Commissioner's powers.

107. A party who is given statutory power to do an act cannot extend that party's authority or power not given by the statute by making a representation which the party is estopped from denying. As Gummow J said in Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; 21 FCR 193 at 208:

Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying.

108. However, in my opinion, the representation in Ms Maher's letter of 5 September 2000 is not inconsistent with clause 94. Clause 94 empowers the Commissioner to give a tenant six months' notice without needing to give or indeed have any reason. It is an empowering provision. It is not inconsistent with that clause for the Commissioner to say that a party may enjoy a tenancy for a period of time. I do not think Ms Maher's representation was ultra vires the power given the Commissioner under the Act.

109. I therefore do not accept Mr Mossop's argument. However, I do not need to decide whether the Commissioner or the Commissioner's delegate could by a representation which was intra vires create an estoppel. Whether the Commissioner or the Commissioner's delegate could make a statement or representation which could, if a party to whom the representation was made acted upon it to that party's detriment, amount to an estoppel in law need not be decided on this appeal, because in fact I am of the opinion that there was no estoppel operating at the time that the matter came before the Tribunal. But even if there was such a question is not a question of law which would allow a right of appeal to this Court.

110. The second question which was said to give rise to a question of law which is identified in [56] of these reasons was a claim of Wednesbury unreasonableness. I will assume that the question of Wednesbury unreasonableness is a question of law.

111. The Tribunal accepted in conformity with Ryan J's opinion that the Tribunal had a discretion which it had to exercise in determining whether to make the orders sought by the Commissioner. The Tribunal took into account all things that were relevant to the exercise of that discretion and did not have any regard to any matters that were irrelevant to the exercise of that discretion.

112. It arrived at a conclusion which was plainly tenable. As the Master has said, the appellant was not able to identify anything about the exercise of the discretion which could possibly amount to establishing that no reasonable person exercising the jurisdiction of the Tribunal could have exercised the discretion in the manner in which it was exercised.

113. The same may be said about this appeal. There is nothing in my opinion in the reasons of the Tribunal which suggests or even tends to suggest that the Tribunal acted irrationally in coming to the decision at which the Tribunal arrived. In my opinion, the decision was plainly open to the Tribunal on the facts and circumstances before the Tribunal.

114. The Master concluded that leave should be refused because if leave were granted the appeal would be bound to fail.

115. In my opinion, that conclusion was undoubtedly correct. The appeal from the Master refusing leave to appeal must be dismissed. The appellant must pay the respondent's costs.

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the defendant: ACT Government Solicitor