Eastman v Commissioner for Social Housing [2011] ACTCA 12

Eastman v Commissioner for Social Housing [2011] ACTCA 12 - ACTCA 2011 case summary — Zoe

[52]

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.
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.
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.

[57]

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

[92]

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".
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.
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.
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]):

[109]

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.
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] NSWCA 187; (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] HCA 88; (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.
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] WASCA 106; (2005) 30 WAR 290 at [28] and Commissioner of Taxation v Hornibrook [2006] FCAFC 170; (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:

[113]

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.
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] FCAFC 27; (2006) 149 FCR 522, and HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; (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] FCA 119; (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.
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] HCA 10; (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] NSWCA 251; (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").
As has often been said (for example in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (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]):

[119]

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.
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).

At a glance

Court

Decision date

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Judgment (128 paragraphs)

Eastman v Commissioner for Social Housing [2011] ACTCA 12 (1 July 2011)

Parties

Legislation Cited (4)

Cases Cited (26)