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B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481

Williams v The Queen (1986) 161 CLR 278

Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290

Commissioner of Taxation v Hornibrook (2006) 156 FCR 313

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

Comcare v Etheridge (2006) 149 FCR 522

HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175

Capital TV & Appliances Pty Ltd v Falconer (1971) 125 CLR 591

Roads & Traffic Authority of NSW v Perry (2001) 52 NSWLR 222

Eastman v The Honourable Justice Anthony James Besanko [2011] HCASL 79

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Collins v Administrative Appeals Tribunal (2007) 163 FCR 35

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321

Vetter v Lake Macquarie City Council (2001) 202 CLR 439

Edwards (Inspector of Taxes) v Bairstow [1956] AC 14

Griffiths v Rose (2011) 201 IR 216; [2011] FCA 30

Aronson M, “Unreasonableness and Error of Law” (2001) 24(2) UNSWLaw Jl 315

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No ACTCA 28-2010

No. SCA 40 of 2007

Judges: Gray P, Penfold & Katzmann JJ

Court of Appeal of the Australian Capital Territory

Date: 1 July 2011

IN THE SUPREME COURT OF THE ) No ACTCA 28-2010

) No. SCA 40 of 2007

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DAVID HAROLD EASTMAN

Appellant

AND: COMMISSIONER FOR SOCIAL HOUSING

Respondent

ORDER

Judges: Gray P, Penfold & Katzmann JJ

Date: 1 July 2011

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs.

THE COURT

Introduction

1. The appellant, David Harold Eastman, lived in a flat in Reid in the Australian Capital Territory (ACT) for 14 years. That situation came to an abrupt end when he was taken into custody in November 1995 upon being sentenced to life imprisonment for murder. Throughout the ensuing 15 and a half years, the flat has remained empty and Mr Eastman continues to assert a right to possession. This appeal relates to that claim.

2. After exhausting his appeal rights, Mr Eastman sent a petition to the Chief Justice of the ACT for a judicial inquiry under s 475 of the Crimes Act 1900 (ACT). The Chief Justice refused the application in July 2000. On 1 May 2001 the lessor of the flat, the respondent (“the Commissioner”), gave Mr Eastman notice requiring him to vacate within six months. Through his then solicitor, Mr Eastman protested the notice and sought a review of that decision. On the basis that a delegate of the Commissioner had made a representation to him in September 2000 that he would be able to remain in possession of the flat until his application for a judicial inquiry had been determined, he contended that the Commissioner was estopped from asserting its right to possession. He also contended that the decision to do so was oppressive and unreasonable in the circumstances. Nonetheless, when Mr Eastman failed to surrender possession of the flat in accordance with the notice, the Commissioner proceeded to take action on the notice in the Residential Tenancies Tribunal (“the tribunal”). The tribunal made orders terminating the tenancy and granting the Commissioner vacant possession. Mr Eastman appealed that decision and it was set aside and a new hearing ordered. In the meantime Mr Eastman made a second request for judicial review of his conviction which was acceded to, but the review found no miscarriage of justice had occurred.

3. On 18 May 2007, after the further hearing, the tribunal ordered that the residential tenancy agreement relating to Mr Eastman’s occupation of the flat be terminated and the Commissioner be granted vacant possession. Mr Eastman applied to the Supreme Court for leave to appeal that decision. The Master heard the application and, on 6 February 2008, refused it. After considerable delay, Mr Eastman appealed from the Master’s decision to the Court of Appeal, but in May 2010 the Court of Appeal declared the appeal incompetent and arrangements were made for the appeal to be heard by a single judge of the Supreme Court. On 21 July 2010 the primary judge made orders dismissing the appeal with costs. On the same day Mr Eastman filed a notice of appeal from those orders. Background

4. The background facts are set out in some detail in the decision of the primary judge. Mr Eastman does not take issue with his Honour’s summary. The following account is largely derived from it and otherwise drawn from the other material in the appeal book.

5. On 24 December 1981 Mr Eastman became a tenant or sublessee of a flat in Reid in the ACT (“the tenancy”). The lessor was the Commonwealth of Australia. After the ACT was granted self-government in 1989 the Commissioner, who conducts the public rental housing assistance program in the ACT, became for all relevant purposes the lessor of the premises. From that time, Mr Eastman held the premises on a lease from the Commissioner.

6. When he entered into the lease Mr Eastman signed an acknowledgement of tenancy which included a clause (cl 15) that provided: 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.

7. On 7 November 1995 Mr Eastman was convicted of the murder of Colin Winchester, an Assistant Commissioner of the Australian Federal Police, and sentenced to life imprisonment. He was immediately taken into custody and has remained in custody ever since.

8. On or about 11 September 1996 the Commissioner decided to terminate the tenancy. Mr Eastman then wrote to the Commissioner on 18 September 1996 in response to the Commissioner’s decision, appealing against that decision. He advised that the appeal against his conviction had been set down (for hearing) on 21 October 1996 and he expected a decision before Christmas. He went on: 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.

9. Mr Eastman’s appeal to the Full Federal Court against his conviction 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 also dismissed: Eastman v The Queen (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.

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

11. On 2 June 2000 the Registrar replied to that letter, enclosing a form of petition for a s 475 inquiry and providing certain information.

12. On 9 June 2000 Mr Eastman wrote to the Registrar enclosing a petition for a s 475 inquiry “to be sent to the Chief Justice”.

13. On 12 June 2000 Mr Eastman’s solicitor wrote to the Attorney-General “to put you on notice that Mr Eastman will seek a fresh Judicial Inquiry”.

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

15. On 26 July 2000 the Registrar of the ACT Supreme Court wrote to Mr Eastman advising him that the Chief Justice had directed him to inform Mr Eastman that he had made an administrative decision not to direct an inquiry under s 475. The Registrar’s letter advised Mr Eastman that he had the option of presenting his petition to the Executive. There is no evidence about when Mr Eastman received the letter or when, if at all, he passed the letter on to his solicitor.

16. The following day, 27 July 2000, the Housing Review Committee (“the Committee”) met to hear Mr Eastman’s appeal against the termination of his tenancy. The Committee had regard to various documents and interviewed Mr Eastman’s solicitor, Mr Collaery. Apparently in ignorance of the letter from the Registrar of 26 July 2000, the Committee noted, amongst other things, that Mr Collaery had reported that an application had been made for a judicial inquiry to the ACT Supreme Court, that the submission would take about three months to prepare and that it was likely that a further three months would elapse before a judicial inquiry would be completed and a decision announced. The Committee also noted a submission from Mr Collaery that “this was not a long period to wait for a final outcome from the appeals process” and “Mr Eastman should be given the opportunity to retain the flat until this process was completed”.

17. The Committee recommended that Mr Eastman’s appeal be upheld. It said it was 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.

18. The Committee recommended that Mr Eastman 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.

19. On 5 September 2000 Bernadette Maher, a delegate of the Commissioner, wrote a letter to Mr Eastman to advise him of the outcome of his appeal to the Committee. She stated in the letter: 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.

20. It was this letter that was said to contain the representation giving rise to the estoppel argument. Mr Eastman submitted to us that the reference to the ACT Government should have been a reference to the judges of the Supreme Court, because his request had been made to the Chief Justice. But, as we have already mentioned, the decision on Mr Eastman’s application for a judicial review had already been made, although it does not appear that Ms Maher was made aware of that.

21. On 22 February 2001 the Director of Housing Services wrote to Mr Eastman: I refer to your tenancy of ... Jerilderie Court, Reid and your letter of 18 September 1996 in which you advised 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.

22. On 1 May 2001 the Assistant Manager, Northside Tenancy Team, wrote to Mr Eastman enclosing a “Notice to Vacate (Termination Notice)”. The Termination Notice provided that the ACT Commissioner for Housing intended to apply to the tribunal for a termination and possession order requiring him to vacate the premises if he did not do so by 1 November 2001. The grounds relied on in the notice were pursuant to clause 94 of the prescribed terms of the Residential Tenancies Act 1997 (ACT) (“Residential Tenancies Act”). Clause 94 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.

23. The termination notice gave Mr Eastman 26 weeks’ notice to quit.

24. In the letter enclosing the termination notice, Mr Eastman 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.

25. On the seventh day – 8 May 2001 – Mr Eastman’s solicitor wrote to the Manager, Northside Tenancy Team, seeking a review of the decision to terminate Mr Eastman’s tenancy 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 express and implied.

26. At this point there was no application for a judicial review that was awaiting a decision. Three weeks later, however, on 31 May 2001 Mr Eastman made a further request in writing to the Chief Justice for a s 475 inquiry into his conviction. In that letter he referred to the letter from the Registrar of 26 July 2000 but did not indicate when he had received it.

27. On 1 June 2001 Mr Bob Hutchinson, Executive Director of ACT Housing, made a note to file (without alteration) about the grounds of review raised by Mr Eastman’s solicitor: 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) Ms Bernadette Maher 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.

28. On the same day Mr Hutchinson wrote to Mr Eastman’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.

29. Accordingly, on 8 November 2001 the Commissioner for Housing applied to the Tribunal for a termination and possession order to have effect as a warrant. As the primary judge pointed out, the application was authorised by the terms of s 47(1) of the Residential Tenancies Act, which at the time provided: (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); (b) the lessor has served a termination notice on the tenant in the prescribed form based on that ground; and (c) the tenant has not vacated the premises as required by the termination notice.

30. On 26 November 2001 the tribunal made orders (amongst other things) terminating the tenancy as at 10 December 2001 and granting vacant possession to the Commissioner. Mr Eastman was not present at the hearing, nor was he represented. Mr Eastman had written to the tribunal seeking an adjournment but his request was declined.

31. On 28 November 2001 Mr Eastman appealed to the Supreme Court against the tribunal’s decision on two grounds: that the tribunal had erred in hearing the matter ex parte; and that the Commissioner was estopped by the written undertaking that his delegate had given on 5 September 2000.

32. Meanwhile, on 7 August 2001, Miles CJ directed that a s 475 inquiry be held.

33. On 20 March 2001 the ACT Director of Public Prosecutions (DPP) commenced two actions in the Supreme Court seeking to restrain the conduct of the s 475 inquiry. On 3 May 2002 the DPP’s applications were dismissed: Director of Public Prosecutions (ACT) v Eastman (2002) 130 A Crim R 588. The DPP appealed and on 3 July 2002 the Full Court of the Federal Court allowed the appeal: Director of Public Prosecutions v Eastman (2002) 118 FCR 360. Mr Eastman successfully applied for leave to appeal to the High Court 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) 214 CLR 318.

34. On 6 October 2005 Miles AJ (as the former Chief Justice then was) delivered his report on the s 475 inquiry. On 22 February 2006 the Chief Minister wrote to Mr Eastman, advising that: The Executive has fully considered the report of the Honourable Jeffrey Allan 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.

35. On 2 June 2006 the Court allowed Mr Eastman’s appeal from the tribunal’s decision and remitted the Commissioner’s application to the tribunal, principally on the ground that there had been a denial of procedural fairness: Eastman v Commissioner for Housing for the Australian Capital Territory (2006) 200 FLR 272 (“Eastman v Commissioner”).

36. The tribunal then reheard the application. It is the decision on the rehearing which Mr Eastman now seeks to have set aside. The tribunal’s decision

37. The tribunal accepted that the standard residential tenancy terms contained in Schedule 1 of the Residential Tenancies Act had replaced the terms of the original lease. The tribunal found that cl 94 gave the Commissioner the right to terminate a tenancy without any fault or default on the part of the tenant.

38. It rejected Mr Eastman’s claim that the letter from Ms Maher of 5 September 2000 estopped or precluded the Commissioner from seeking the orders in the tribunal. It found that Mr Eastman had not acted to his detriment in relying on the representation contained in it. In the alternative that the letter did amount to an estoppel, the tribunal found (relying on the letter from the Chief Minister dated 22 February 2006) that “the circumstances of the estoppel were met by the completion of the Judicial Review”.

39. As the primary judge noted, the tribunal accepted that it had a discretion under s 47 of the Residential Tenancies Act whether or not to make the orders sought, but declined to exercise it in Mr Eastman’s favour. It was not disputed before us that there was such a discretion, although in the appeal from the first decision of the tribunal the Court had expressed only a provisional view that the section conferred a discretion. See Eastman v Commissioner at [23]-[34]. The proceeding before the Master

40. At the time of the proceedings before the Master, s 125 of the Residential Tenancies Act then provided that appeals from the tribunal could only be brought by leave and were limited to questions of law.

41. On 4 June 2007 Mr Eastman applied for leave to appeal and filed a draft notice of appeal. In the draft notice of appeal he pleaded: [T]he Tribunal erred in law in:

(a) holding that an undertaking given by the Respondent’s delegate on 5-9-00 did not give rise to an estoppel; and

(b) failing to exercise its discretion under sect. 47 of the Residential Tenancies Act 1997, either by dismissing the Respondent’s application, or by granting it subject to a refund of rent paid since 5-9-00.

42. Despite the way the grounds were formulated in the draft notice of appeal, in the application for leave the questions of law were put as follows: 1. Whether the respondent’s delegate created an estoppel on 5 September 2000. 2. 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.

43. The Master observed that the Court would ordinarily expect the question of law to be clearly stated in the draft notice of appeal but acknowledged that, where the applicant is unrepresented, “a little more flexibility” was appropriate.

44. His Honour found that the estoppel issue was incapable of giving rise to a pure question of law and was invariably one which involved a mixed question of fact and law. For this reason, he held, the first question could not be a question of law within the meaning of s 125(1) of the Residential Tenancies Act. His Honour also found that, even if it were a question of law, the Commissioner could not be estopped from exercising his statutory duty by a previous statement he or his delegate had made. (Ryan J in the first appeal emphatically reached the same conclusion: Eastman v Commissioner at [35])

45. Although the second question on Wednesbury unreasonableness was taken to be a question of law, the Master found that Mr Eastman could not point to anything about the exercise of the discretion that warranted such a conclusion. His Honour also said he could find no power that would have enabled the tribunal to require the Commissioner to refund rent as a condition of an order terminating a tenancy. Consequently, his Honour found that the proposed appeal from the tribunal’s decision would be “bound to fail” and he therefore refused leave. The decision of the primary judge

46. The primary judge upheld the Master’s decision. His Honour held that the first question did not give rise to a pure question of law and the Court’s jurisdiction did not extend to appeals which raised, as this one did, a mixed question of fact and law. He assumed that the second question did raise a question of law but did not find that it was made out. He said that the tribunal’s conclusions were not irrational and were “plainly open”, and noted (as had the Master) that Mr Eastman was unable to point to anything about the discretion that “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”.

47. Although it was unnecessary for him to do so, his Honour also considered whether there was error in the fact-finding, on the alternative basis that he was wrong in his view that the first question did not raise a pure question of law. In that regard he held that – for two reasons – there was no estoppel binding on the Commissioner.

48. In the first place, he said (in effect) that by the time the tribunal heard the application the ACT Government had made a decision on his application, so the circumstances that could have given rise to an estoppel no longer obtained. His Honour did not accept that the representation made in the letter was (as Mr Eastman argued) to the effect that the Commissioner would allow Mr Eastman to retain his tenancy until such time as the ACT Government made its decision and all challenges to that decision had been exhausted. But he noted, for good measure, that in any event the Court had also dismissed Mr Eastman’s application to quash the ACT Government’s decision and all appeals and applications for leave to appeal had been exhausted. The result, his Honour held, was that leave to appeal would be refused because, if the matter were to be remitted to the tribunal, the outcome would be the same.

49. In the second place, his Honour rejected Mr Eastman’s argument that the payment of tens of thousands of dollars in rent constituted a relevant detriment. His Honour accepted Mr Eastman had paid rent in this period but he did not accept that he had done so in reliance on the representation in the letter. He said (at [95]-[96]): 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 … He cannot make out a necessary element of the plea of estoppel.

The appeal

50. The appeal from the primary judge lies under Pt 2A of the Supreme Court Act 1933 (ACT). It is an appeal in the nature of a rehearing. Cf. Allesch v Maunz (2000) 203 CLR 172 (“Allesch”). Consequently, error must be shown: Allesch at [23]. See also Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 at [25]. The grounds of appeal

51. The grounds of the appeal as they appear in the draft notice of appeal are succinctly put. They merely recite that the primary judge “erred in finding that leave to appeal should be refused because if leave were granted the appeal would be bound to fail”. The reason or reasons for the error were, however, obscure. The submissions in support of the appeal

52. Nevertheless, in his written submissions Mr Eastman identified the areas where, he contends, the primary judge fell into error. They are, in substance, as follows: (a) The primary judge erred in his interpretation of s 125(1) of the Residential Tenancies Act. Contrary to his Honour’s decision, the Court has a discretion to grant leave to appeal on a ground which is not exclusively a question of law. In exercising this discretion, a relevant test to apply is that enunciated in Niemann v Electronic Industries Ltd [1978] VR 431 (“Niemann”). The primary judge was wrong to distinguish Niemann. On the application of that test Mr Eastman would have won. (b) The allegation that the Commissioner was estopped from determining the tenancy or recovering possession of the premises until the ACT Government had made a decision on his application for judicial review raised a question of law, rather than a mixed question of fact and law. A question of law “may include such factual issues as are intrinsic to the question of law, and as are essential for the question of law to be understood and considered”. (c) Contrary to the primary judge’s finding, he has “a very arguable case” on the estoppel issue. (d) He also has “a very arguable case” on the question of Wednesbury unreasonableness. The proper test for the exercise of the discretion to grant leave to appeal

53. The reference to Niemann in Mr Eastman’s submissions appears to derive from some remarks of the Master. The Master noted that in one of his previous judgments – namely, Classic Constructions (Aust) Pty Ltd v Conservator of Flora and Fauna [2005] ACTSC 103 (“Classic Constructions”), a decision on an application for leave to appeal a decision of the ACT Administrative Appeals Tribunal (“ACTAAT”) – he had said that certain principles (derived from Niemann) were relevant to an application for leave to appeal a decision of the ACTAAT. See Classic Constructions at [22]: To obtain leave to appeal from an interlocutory order, the appellant must show a doubt about the correctness of the primary judge's decision and that an injustice would be done by allowing the decision to stand. A court will more readily give leave to appeal against an interlocutory decision which has effectively terminated the rights of the applicant for leave. Stricter control is exercised where the decision, like most interlocutory orders, concerns practice and procedure and is not determinative of the parties' rights. It has been said that where an interlocutory order relates to a question of practice or procedure, the availability of an appeal as of right would have a tendency to increase delay and costs by transferring to an appellate court discretions that should be exercised by a chamber judge or master: leave should therefore be reserved for cases with special features warranting appellate review. The requirement for leave is recognised as a warning that interlocutory appeals are not to be brought as a matter of routine. (Emphasis added)

54. The Master was fortified in his view because Higgins J in Ferguson v ACT Electricity and Water [1995] ACTSC 5 applied Niemann in an application for leave to appeal a decision of the Small Claims Court (a tribunal).

55. Niemann has been followed in the Federal Court in applications to appeal interlocutory orders but with an important qualification. See, especially, Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (“Decor v Dart”). The Court in Decor v Dart said that the principles in Niemann offer general guidance, which a court should normally accept, but there will continue to be cases raising special considerations. And, it emphasised (at 399-400), the Court should not regard its hands as tied by anything other than that “the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave”.

56. The Master also incorrectly stated the principles in Niemann. In Niemann the Court held that leave to appeal an interlocutory order should only be granted where the decision was wrong, or at least attended with sufficient doubt to justify granting leave and, additionally, substantial injustice would be done if the decision were left to stand. On a proper reading of the decision in Niemann the threshold imposed upon Mr Eastman is higher than he appears to have assumed. In Niemann, Murphy J (with whom McInerney J agreed) observed (at 441) that: If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.

57. Here, taking up the Master’s inaccurate paraphrase of the principles in Niemann, the primary judge said that whether a decision of the tribunal were attended by doubt or the applicant would suffer an injustice if the decision were allowed to stand were not relevant considerations on an application for leave to appeal under s 125 of the Residential Tenancies Act. His Honour stated (at [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) 170 CLR 321 per Mason CJ at 353 and Toohey and Gaudron JJ at 384 in dealing with an error of law.

58. The plain intention of the legislature is to provide a filter for appeals from the tribunal. What is tolerably clear from the plain words of the section is that it is insufficient to point to a question of law. Something more is required. We agree with the primary judge that it is necessary for an applicant to demonstrate that he or she has at least an arguable case, that the tribunal has erred in its resolution of a question of law and that the result of the error would have been more favourable to him or her. Otherwise, it would be futile to grant leave. We are not convinced that whether the applicant would suffer a substantial injustice if the decision were allowed to stand is irrelevant but, absent an arguable case, it will certainly not justify a grant of leave. Nothing in Niemann suggests otherwise. We did not, however, hear full argument on this question and it is unnecessary to resolve it in this case. On either approach, for the reasons which follow, Mr Eastman must fail. The scope of an appeal from the tribunal

59. At the relevant time the only right of appeal from a decision from the tribunal was that granted by s 125 of the Residential Tenancies Act. Section 125 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.

60. Mr Eastman submitted that the Court in its discretion may hear an appeal involving a mixed question of law and fact and therefore has jurisdiction to entertain an appeal which does not raise a pure question of law.

61. Mr Eastman submitted that the absence of the adverb “only” before the phrase “on a question of law” in subsection (1) is significant, contrasting its omission with its presence in subsection (2). That submission must be rejected. As the Master pointed out, subsection (2) was inserted by the Court Procedures (Consequential Amendments) Act 2004 (ACT). It follows that its terms cannot assist in the interpretation of subsection (1). Moreover, subsection (1) creates the right to appeal, which does not exist otherwise. “Only” would be redundant. In B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481 (“B & L Linings”) Basten JA drew no distinction between the statutory expressions “on a question of law” and “on a question of law alone”. His Honour cited Williams v The Queen (1986) 161 CLR 278 in which the High Court held that, where an appeal lies on a question of law alone, it does not extend to a mixed question of fact and law.

62. Mr Eastman noted that the primary judge had referred to two authorities in which it had been said that an issue of estoppel involves a mixed question of fact and law: Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290 at [28] and Commissioner of Taxation v Hornibrook (2006) 156 FCR 313 at 323. Mr Eastman submitted, in effect, that the cases turned on their facts and did not purport to lay down any statements of general principle. It is difficult, however, to conceive of a case in which an issue of estoppel would not involve at least a mixed question of fact and law unless all the facts had been found or agreed. But this was not such a case. Furthermore, the primary judge did not approach the matter in this way. His Honour said: [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.

63. It was at this point that his Honour referred to the authorities. Having done so, in a passage in his reasons which Mr Eastman frankly confessed to having overlooked, his Honour repeated (at [86]) that it was probably not necessary to state the proposition as widely as the Master did because in this case the question of whether an estoppel arose was a mixed question of fact and law. On this question his Honour was undoubtedly correct.

64. On this appeal the Commissioner relied upon such authorities as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 (“Birdseye”), Comcare v Etheridge (2006) 149 FCR 522, and HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 for the proposition that a mixed question of fact and law is not a question of law for the purpose of s 125(1) of the Residential Tenancies Act. These cases concerned s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which is in substantially the same form as s 125(1) of the former Act. In Birdseye Branson and Stone JJ approved of an observation of Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that an appeal “on a question of law” is narrower than an appeal that merely “involves” a question of law and, the subject matter of an appeal “on a question of law” is the question(s) of law.

65. Decisions of the Federal Court, like those referred to by the Master, insist on the identification of a pure question of law. We recognise that the decisions of the Federal Court (as Allsop P pointed out in B & L Linings at [49]) were reached in the context of Commonwealth law where there is a strict separation of the administrative and judicial functions. This Court is not a federal court exercising federal jurisdiction: see Capital TV & Appliances Pty Ltd v Falconer (1971) 125 CLR 591. Nevertheless, as Allsop P also said in B & L Linings at [75]) an “‘appeal on a question of law’ from a decision of a tribunal wholly or substantially carrying out functions of administrative decision making or review” is a process of review (called an appeal) on an identified question of law, which is the subject matter of the proceeding, and does not extend to finding facts. Cf. Roads & Traffic Authority of NSW v Perry (2001) 52 NSWLR 222 at [63] (an appeal pursuant to s 57 of the Land and Environment Court Act 1979 (NSW) “on a question of law”).

66. As has often been said (for example in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356), it is not an error of law to make a wrong finding of fact. Nor does s 125(1) authorise a review of the facts (as Mr Eastman’s submissions suggest) just because a question of law can be identified, for this would be contrary to the weight of authority and would also involve treating the phrase “on a question of law” as synonymous with “involving a question of law”: B & L Linings at [55]. In the same case Basten JA pointed out (at [131]):

Putting to one side differences between jurisdictional error and errors of law within jurisdiction, the purpose of each procedure is similar in that it is designed to ensure that the tribunal in question operates within its legal limits and applies correct law. The limited scope of judicial review involves an acceptance that other questions are, in accordance with the relevant statutory scheme, to be determined finally by the tribunal. A similar purpose can be identified underlying statutes which confer jurisdiction on a tribunal and provide an appeal limited to questions of law. When, as in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 15 (Moffitt P) and at 22 (Mahoney JA) the courts rail against apparently erroneous fact-finding, they are implicitly acknowledging their impotence to interfere. While it should be accepted that a statutory provision conferring jurisdiction on a court will not be read as subject to any implied limitation (see The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc (1994) 181 CLR 404 at 421) and will be given “no narrow construction” (see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72 at 78 [11]), clear limitations must, nevertheless, be given full effect so as to accord with the expression of parliamentary intention to confer exclusive fact-finding power on the tribunal, without any right of appeal.

67. As the primary judge said at [79]-[81]: [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...

68. So much is apparent from the authorities. See, in particular, Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429.

69. In the present case Mr Eastman did not identify a question of law. The questions he raised concerned alleged factual errors: about the nature of the representation made by the Commissioner’s delegate in the letter, about whether or when the circumstances giving rise to the claimed estoppel eventuated and about whether he would suffer a detriment in reliance on the letter.

70. It is true that on an appeal limited to a question of law there may be a need to look at facts (where, for example, the question is whether the tribunal exceeded the authority conferred upon it by the statute or whether there is any evidence to support a factual finding): Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [55]. But on such an appeal the Court is not permitted to determine issues of fact.

71. The limitation imposed on the Court on an appeal under s 125(1) of the Residential Tenancies Act is a substantial one. There must be an error of law that arises on the facts found by the tribunal or that vitiates the findings that were made, or which led the tribunal to fail to make a finding it was legally required to make: Cf. Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286. Mr Eastman pointed to no such error.

72. Mr Eastman also orally submitted that the Court had an inherent jurisdiction to hear an appeal from the tribunal.

73. That submission must also be rejected. The right to appeal from the tribunal is a statutory right. It is conferred by s 125 of the Residential Tenancies Act. The Court only has jurisdiction to hear an appeal that falls within its terms.

74. The primary judge was correct to hold that the first question – whether an estoppel arose – was not a question of law.

The allegedly arguable case on estoppel

75. Although, for more abundant caution, his Honour went on to consider the facts, and although we are disposed to agree with his Honour’s remarks, it is not necessary to go down this path. Having regard to the submissions made to us, however, we would make two observations. At the time the decision was made to serve the notice of termination on Mr Eastman, a decision had been made by the Chief Justice not to order a judicial inquiry. By the time the second tribunal heard the Commissioner’s application, the judicial inquiry that was later ordered had published its determination. Indeed, 15 months had passed since Mr Eastman had been told that the Executive would take no further action after considering the report of that inquiry. Thus, the circumstances said to give rise to the estoppel did not exist either at the time the notice of termination was served, or when the second tribunal ordered that Mr Eastman vacate the flat. From the bar table Mr Eastman asserted that after the High Court dismissed an application for special leave (Eastman v The Honourable Justice Anthony James Besanko [2011] HCASL 79) on 7 April this year, he made a request for a second judicial inquiry. But there was no evidence before us of such a request. In any event, on no reasonable view could it be said that an application for judicial review lodged after the representation was made could found a case of promissory estoppel.

76. It is inconceivable that Mr Eastman could show that the Commissioner induced him to assume that, after a judicial inquiry had found that there had been no miscarriage of justice, provided he made a further application for another such inquiry, he was entitled to retain possession of the flat until that (or any other such application) had been determined. Moreover, as years went by following the report of the judicial inquiry during which he continued to pay rent, it is equally inconceivable that he could show that he paid the rent in reliance on the Commissioner’s representation (no matter how it is characterised). Wednesbury unreasonableness

77. This question concerns the exercise by the tribunal of its assumed discretion under s 47 of the Residential Tenancies Act. The question raised is whether the tribunal failed to exercise its discretion in Mr Eastman’s favour in circumstances where no reasonable person could have failed to do so (“Wednesbury unreasonableness”, after Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).

78. The Commissioner accepted that the question was a question of law. The primary judge was prepared to assume it did. In Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at [19] the High Court found it unnecessary to examine the relationship between Wednesbury unreasonableness and error of law and, in view of the assumption the primary judge made in Mr Eastman’s favour, and the concession of the Commissioner, neither is it necessary for us to do so. But we note that in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [77] Kirby J, citing Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 33-34, accepted that a view of the facts taken by a primary decision-maker will be an error of law if no reasonable decision-maker could have come to it. Professor Aronson has noted (Aronson M,“Unreasonableness and Error of Law” (2001) 24(2) UNSWLawJl 315 at [78]) that there is “general agreement” in the authorities that “the application of law to fully found facts produces an error of law only where the outcome is clearly not open” and suggested: [T]here is no harm in expressing the requisite clarity in terms of unreasonableness, provided one understands that the level of unreasonableness is equivalent to that required by the Wednesbury test.

79. It therefore seems that the concession was properly made. But whether or not there was a question of law is one thing. Whether or not the discretion was exercised unreasonably is quite another.

80. The tribunal took into account the following matters when considering whether it should exercise its discretion in Mr Eastman’s favour: (a) Evidence that demand for public housing in the ACT always exceeds supply and there was a waiting period of over 1,000 days for standard allocations and there were over 2,000 applications on the Housing Register; (b) The Commissioner understood from the representations made to the Committee by Mr Eastman’s lawyer that the anticipated time frame for the conduct of the judicial review was six months (we interpolate that the Commissioner did not serve the notice of termination within that six months period); (c) The correspondence between the parties showed that “it was clear” that whenever the Commissioner delayed terminating the tenancy he did so on the understanding that a final decision in relation to the judicial review would be made shortly; (d) There was considerable confusion arising from the number of applications for a review; (e) In a letter dated 18 September 1996 Mr Eastman had stated, in relation to his appeal to the High Court “if that decision should happen to be adverse, I will surrender the flat” and he had not honoured that undertaking; (f) It was never the intention of the Commissioner to delay termination of Mr Eastman’s tenancy indefinitely or until all forms of legal process have been exhausted. 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 the Chief Minister on 22 February 2006.

81. Mr Eastman did not argue that any of these matters was irrelevant to the exercise of the tribunal’s discretion.

82. As Perram J said in Griffiths v Rose (2011) 201 IR 216; [2011] FCA 30 at [50]: The threshold erected by this ground is necessarily high. In exercising it [it] is important not to be drawn into a review of the merits of the matter for the question is not whether this court agrees with the decision but rather whether the decision is one at which any decision-maker could have arrived. This entails that the ground is not available where there is mere, or even strong, disagreement with the decision in question. The power is enlivened only when the implied limitations on Parliament’s remit are transcended and that occurs when a level of unreasonableness is reached which, in essence, permits of no contrary view.

83. By the time the matter came before the tribunal the flat had been vacant for almost 12 years. In those circumstances alone and in the face of the evidence about the demand for low cost housing, it was undoubtedly open to the tribunal to refrain from exercising its discretion in Mr Eastman’s favour. More particularly, such a decision could scarcely be described as unreasonable, let alone so unreasonable that no reasonable decision maker could have made it.

84. The decisions of both the primary judge and the Master on this question are unimpeachable. This argument would have no prospect of success. Conclusion

85. The appeal must be dismissed.

86. The appellant should pay the respondent’s costs. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Date: 1 July 2011

Counsel for the appellant: The appellant appeared in person

Counsel for the respondent: Mr Crowe SC

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 12 May 2011

Date of judgment: 1 July 2011

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