Eastman v Commissioner for Housing in the Australian Capital Territory [2010] ACTCA 12

Court of Appeal (ACT)|2010-06-11|Before: Gray P, Lander JJ

1. On 14 May 2010, the Court declared as incompetent a purported appeal contained in a notice of appeal filed on 11 August 2009 from a judgment of a Master of this Court given on 6 February 2008. The Court intimated that it would give reasons for its decision at a later time. These are our reasons.

2. David Harold Eastman, who lodged this appeal, was the tenant or sub-lessee of a flat at Jerilderie Court, Reid (the premises) as a lessee of the Commonwealth of Australia under the Leases Ordinance 1918-1972. After the Australian Capital Territory (ACT) gained self-government in 1989, the Commissioner for Housing in the ACT (the Commissioner) became, for all relevant purposes, the lessor of the premises and Mr Eastman thereafter held the premises on lease from the Commissioner.

4. On 5 September 2000, Mrs Bernadette Maher, a delegate of the Commissioner for Housing, wrote to Mr Eastman in the following terms:

The Housing Review Committee considered your appeal against ACT Housing's decision to terminate your tenancy at ... Jerilderie Court Reid on 17 July 2000. As you are aware Mr Collaery represented you at the hearing.

After careful consideration of your case, the Committee recommended to me that your appeal be upheld.

I have agreed with the recommendation and approved for you to retain your tenancy at ... Jerilderie Court Reid 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.

5. The judicial review the author of that letter is referring to was a petition lodged by Mr Eastman under s 475 of the Crimes Act 1900 (ACT) (Crimes Act) on 9 June 2000 which the then Chief Justice, Miles CJ, had referred to the Attorney-General for the ACT.

6. The Residential Tenancies Act 1997 (ACT) (the Residential Tenancies Act) governs all residential tenancies in the ACT and, in particular, governs the tenancy under which Mr Eastman held the premises.

7. On 1 May 2001, Mr Eastman was served with a notice to vacate pursuant to clause 94 of the Standard Residential Tenancy Terms which are contained in the Schedule to the Residential Tenancies Act, which then provided:

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.

8. Mr Eastman was advised that he could seek a review of the Commissioner's decision to terminate the lease. On 8 May 2001 Mr Eastman sought such a review on the grounds:

(a) of estoppel by reason of the undertaking given in Mrs Maher's letter of 5 September 2001;

(d) that there had been no breach of the prescribed terms or covenants either express or implied.

9. On 31 May 2001, the applicant sought an inquiry under s 475 of the Crimes Act into his conviction for murder.

10. On 1 June 2001, the Executive Director of ACT Housing wrote to Mr Eastman advising that the decision to terminate Mr Eastman's tenancy should stand. He made a file note at the same time:

Point (a) Mrs Bernadette Maher's 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 and c) are subjective.

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

11. On 7 August 2001 the then Chief Justice, Miles CJ, directed that an inquiry be held into the matter of Mr Eastman's fitness to plead during the whole or any part of his trial for the murder of Colin Winchester.

12. Mr Eastman did not "vacate" the premises as required and on 8 November 2001 the Commissioner applied to the Residential Tenancies Tribunal (the Tribunal) for a termination and possession order to have effect as a warrant of execution.

13. Section 47(1) of the Residential Tenancies Act provided for the Tribunal's power in this regard:

47 No breach of prescribed terms

(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 prescribed terms (other than for a breach of the prescribed 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.

14. On 26 November 2001, the Tribunal made an order that Mr Eastman's tenancy be terminated with effect from 10 December 2001. Mr Eastman appealed from that decision.

15. On 6 October 2005, Miles A/J (as his Honour then was) delivered his report under s 475 of the Crimes Act.

16. On 22 February 2006, Mr Jon Stanhope, Chief Minister of the ACT, wrote to Mr Eastman advising that the ACT Executive, having considered the report of the former Chief Justice Miles, intended to take no further action in connection with Mr Eastman's fitness to plead.

17. On 30 May 2006, Ryan J allowed Mr Eastman's appeal from the Tribunal and set aside the orders of the Tribunal and remitted the Commissioner's application to the Tribunal. His Honour quashed the decision because Mr Eastman had not been accorded procedural fairness: Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52; (2006) 200 FLR 272. There is no explanation why some five years was allowed to pass between the Tribunal's decision and the hearing before Ryan J.

18. On 18 May 2007, after conducting the further hearing ordered by Ryan J, the Tribunal made the following orders:

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.
That the Applicants [sic] be granted vacant possession of the premises from the 21st day of May 2007.
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.

19. 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".

20. The Tribunal rejected a claim by Mr Eastman 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.

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

22. Mr Eastman applied for leave to appeal to the Supreme Court against the orders made by the Tribunal which he was permitted to do by virtue of s 125 of the Residential Tenancies Act 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.

23. Section 125(2) requires a party dissatisfied with the Tribunal's decision to obtain leave of the Supreme Court. Section 125(1) limits a party's right to appeal to "a question of law".

24. Mr Eastman's application for leave to appeal came on for hearing before Master Harper. Mr Eastman contended that two questions of law arose:

(1) Whether the Respondent's delegate created an estoppel on 5-9-00.

(2) Whether the Tribunal failed to exercise a discretion in the Appellant's favour in circumstances where no reasonable person could have failed to so exercise it.

25. 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. The reasons for the making of those two stay orders do not appear in the appeal book.

26. Section 8 of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) provides that the jurisdiction of the Court is exercisable by a single judge except when exercised by the Master under the rules: s 8(1)(a). Section 9(1) provides for the exercise of jurisdiction by the Master. It provides:

For the purposes of the exercise of jurisdiction given to the master under the rules, this Act has effect, subject to this section, as if the court consisted of the judges and the master.

27. Court Procedure Rules 2006 (ACT), r 5051, identifies the judicial officer who may hear appeals to the Supreme Court. Relevantly, a judge or master could hear an appeal from a decision of the Tribunal. Master Harper had jurisdiction to hear Mr Eastman's application for leave to appeal.

28. Master Harper found 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 his delegate. In relation to the second ground the Master found that Mr Eastman was unable to point to anything about the exercise of the discretion which would come within the purview of Wednesbury unreasonableness (Associated Provisional Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223). He concluded that leave should be refused because if leave were granted, the appeal would be bound to fail.

29. Mr Eastman appealed to this Court against the order of the Master dismissing his application for leave to appeal.

Master Harper erred in finding that if leave were granted the appellant's appeal would be bound to fail.

31. Section 9(2) of the Supreme Court Act provides:

A person who is dissatisfied with an order of the master made in the exercise of jurisdiction given under the rules may appeal, as prescribed under the rules -

(a) for an interlocutory order - to the court constituted by a single judge; and

(b) in the case of any other order - to the Court of Appeal.

32. The order made by the Master was to refuse leave to appeal. Clearly the order made by the Master does not finally dispose of the matter and, in those circumstances, the order was interlocutory: Sanofi v Park Davis Pty Ltd (No 1) [1982] HCA 9; (1982) 149 CLR 147 at 152; Minister for Industrial Affairs v Civil Tech [1997] SASC 6298; (1997) 69 SASR 348 at 352; Reid v Bairn (1985) 60 ALR 419 at 421.

33. Because of the provisions of s 9(2) of the Supreme Court Act, an appeal from an interlocutory order made by a master must be taken to the Supreme Court constituted by a single judge and not to the Court of Appeal.

34. The absence of jurisdiction for the Court of Appeal to hear the purported appeal is reinforced by s 37E(2)(a)(i) of the Supreme Court Act. That section provides:

(2) The following matters may be brought before, and heard by, the Court of Appeal:

(a) appeals in relation to the following orders:

(i) orders of the master, except interlocutory orders (see section 9 (Exercise of jurisdiction by master)).

35. The purported appeal was incompetent. If Mr Eastman wishes to appeal, then an appeal lies as of right to a single judge of the Supreme Court.

36. The Commissioner contended that the appeal was incompetent, but that because of a direction given by Chief Justice Higgins on 6 February 2008, the appeal might be deemed to have been commenced in the Supreme Court rather than the Court of Appeal.

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

38. The Commissioner contended that Mr Eastman's oral statements should be treated as the institution of an appeal to a single judge. That will be for a single judge to determine.

39. As far as this Court is concerned, it is enough for this Court to declare the appeal incompetent and to desist from any further hearing.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the Respondent: ACT Government Solicitor

Court Procedure Rules 2006(ACT)

Leases Ordinance 1918

Procedure Rules 2006

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