Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52

Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52 - ACTSC 2006 case summary — Zoe

[9]

`20. (1) Where the Commissioner makes a decision:

... ...

(e) upon review that a tenant is not eligible for continued assistance under this Program

... ...

he or she must, within twenty-eight days after the date of the decision cause notice in writing of the decision to be given to the applicant.

(2) A notice must include a statement to the effect that the applicant may within twenty-eight days of service of the notice on the applicant lodge an objection in writing with the Commissioner.

(3) Any decision by the Commissioner to terminate a tenancy granted under this program on any ground which is lawfully available in relation to that tenancy, and any action by the Commissioner in pursuance of such a decision, is not a decision on an application for the purpose of this clause or clause 21.

21. (1) A person who is dissatisfied with a decision by the Commissioner on an application may lodge with the Commissioner a written objection within twenty-eight days after notice of the decision is served on the person.

(2) An objection must state fully and in detail the grounds on which it is made.

(3) The Commissioner shall refer to the Housing Review Committee for reconsideration an objection which he or she has decided not to uphold, or an application for the consideration of a late objection which he or she has decided to refuse, and may accept, reject or vary the recommendation of the Housing Review Committee.

(4) The Commissioner must give the objector written notice of his or her decision on an objection.

(5) For the purpose of subclause 21(1), "application" is deemed to include:

(a) a decision to transfer a tenant under paragraph 18(4)(b) or subclause 18(6); and

(b) a decision upon review that a tenant is not eligible for continued assistance.

(6) A person who is dissatisfied with a new dwelling being offered following a decision by the Commissioner under subclause 18(5) may lodge an objection in accordance with subclause (1).

22. (1) If the period within which a person may lodge an objection has ended, the person may nevertheless send an objection to the Commissioner with a written application to treat the objection as having been duly lodged.

(2) An application must state fully and in detail the reasons for the person's failure to lodge the objection within that period.

(3) The Commissioner shall refer to the Housing Review Committee for reconsideration an objection which he or she has decided not to uphold, or an application for the consideration of a late objection which he or she has decided to refuse, and may accept, reject or vary the recommendation of the Housing Review Committee.

(4) The Commissioner must give the applicant written notice of his or her decision on an application.

(5) If the Commissioner grants an application, the objection to which the applicant relates must be treated as having been duly lodged.

23. Application may be made to the Administrative Appeals Tribunal for a review of a decision by the Commissioner:

(a) disallowing an objection; or

(b) refusing an application under subclause 22(1).'

[29]

`So that in considering Mr Eastman's request for an adjournment, I decline the request for an adjournment on the following basis: (1) In relation to the argument that Mr Eastman had not received the documents, the Tribunal finds that Mr Eastman had sufficient notice of these proceedings, and amongst other things, I take into account the letter dated early May from Mr Eastman's legal representative to ACT Housing. And also that despite the absence of attachments A to E in the information that he received, I don't believe that that would have affected his ability to get legal advice. For one, their content doesn't actually raise a question of any legal issue. And secondly, it couldn't be argued that he needed to see them before he knew that, because they're described in the statement of particulars as being no more than documents which he probably already had copies of in any event, or which his legal representative had copies of.

In relation to the estoppel argument that was raised indirectly through the information actually filed by ACT Housing, but I refer to the letter dated 8 May from Mr Eastman's legal representative to ACT Housing. From the evidence that I have, Mr Eastman was never promised that the delay in proceedings would be indefinite. And certainly since September 2000 he and his legal representatives have been aware that there was a decision to review the question of his continuing tenancy after the judicial review application was decided.

And thirdly, that internal ACT Housing decisions in relation to tenancies are not a matter for this Tribunal to review, but for the Administrative Appeals Tribunal. And Mr Eastman would have been able to lodge an application for review with that body, either on 1 May 2001 when he received the notice to vacate, which is the date of the service of the notice to vacate, or on 1 June 2001 when ACT Housing replied to Bernard [Collaery's] letter.

So that for those reasons I don't see that there's any justification in waiting two more weeks in relation to this. And I take into account how long the matter has been going on. But before I would be of a mind to grant the application that ACT Housing has put, I need to be satisfied that the Act has been complied with absolutely to the letter.'

[37]

`[48] ...... it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are:

(1) that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and

(2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order [Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239; Rosing v Ben Shemesh [1960] VicRp 28; [1960] VR 173; Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Ltd [1984] 2 Qd R 447; cf Macquarie Bank Ltd v Beaconsfield [1992] VicRp 77; [1992] 2 VR 461].

[49] If no reasonable explanation is given for the default, it is not an injustice to deny the party in default a second opportunity to be heard. That opportunity is taken to have been waived or forfeited. Nowadays, the consideration of the reasonableness of an explanation will take into account the legitimate interests of any other party affected by the court's order (including any innocent third parties) as well as the general public. The interests at stake include a general respect for the finality of judicial orders [DJL v Central Authority [2000] HCA 17; (2000) 74 ALJR 706 at 724-725 [90]; [2000] HCA 17; 170 ALR 659 at 684] and for the efficient management of judicial proceedings that is consistent with their fundamental objectives, including the attainment of justice [Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 172].

[50] Similarly, there will be no miscarriage of justice if the party affected by the impugned order cannot demonstrate an arguable case that reopening the matter might reasonably produce a materially different result which is more favourable to that party. If the process by which that order is made is flawed, but it is not shown that the outcome might reasonably be materially different, the party offended by the process may be upset by a sense of procedural injustice. However, upon analysis, that feeling will not find reflection in the ultimate disposition of the rights and duties of the parties with which the law is finally concerned. Correction concentrates on any supposed error in the ultimate judicial orders and not exclusively on the procedures leading to, or reasons given for, those orders.'

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Judgment (67 paragraphs)

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