Eastman v The Commissioner for Housing in the Australian Capital Territory [2008] ACTSC 1

2. Mr Eastman has been a tenant or sublessee of the flat since 24 December 1981, originally as a lessee from the Commonwealth of Australia under the Leases Ordinance 1918-1972. It was not in contention before the Tribunal that after 1989, when the Australian Capital Territory gained self-government, the respondent became, for relevant purposes, the lessor.

3. The applicant lived in the flat until 7 November 1995. On that date, following his conviction in this Court for murder, he was taken into custody. He was sentenced to life imprisonment. Over the years since, Mr Eastman has taken a number of steps open to him to challenge his conviction but, at the date of this decision, the conviction and sentence stand and he remains in custody. He has not lived in the flat since his conviction some twelve years ago.

4. The Tribunal accepted, apparently as common ground, that the standard residential tenancy terms contained in Schedule 1 to the Residential Tenancies Act 1997 had replaced the terms of the original tenancy agreement between the applicant and the Commonwealth. Clause 94 of the standard terms provides:

The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant to vacate at the end of the notice provided that -

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

5. The Residential Tenancies Act applies to all residential tenancies in the Australian Capital Territory. These include tenancies where the premises are the only house or flat owned by the lessor, as well as tenancies where the lessor can be described as a commercial lessor who owns and lets many properties. The present respondent, the Commissioner for Housing, is a statutory officer under the Housing Assistance Act 1987 (and also a public servant under the Public Sector Management Act 1994). The Commissioner conducts the public rental housing assistance program, a program funded by the Commonwealth, and is the lessor of a large number of houses and flats in Canberra.

6. The Tribunal found that the respondent had served the applicant on 1 May 2001 with a notice to vacate under the section, accompanied by a letter informing him that he was entitled to ask for a review of the decision. Following an internal review, the respondent brought proceedings in the Tribunal seeking a termination and possession order. Service of the application was effected by post but did not come to the applicant's attention until shortly before the return date of the application. The applicant contacted the registry of the Tribunal asking for an adjournment. The communication was brought to the attention of the presiding member who nevertheless proceeded to determine the application in the absence of the applicant. The Tribunal ordered that the applicant's tenancy be terminated with effect from 10 December 2001.

7. The applicant appealed from the decision of the Tribunal. The appeal was heard in May 2006 by Ryan J, who set aside the orders of the Tribunal and remitted the application to the Tribunal to be heard and determined according to law.

8. The Tribunal reheard the application, and on 18 May 2007 made the orders which are the subject of the present application for leave to appeal. The power to make the orders is conferred by s 47(1) of the Residential Tenancies Act. The subsection is in the following terms:

47 No breach of standard residential tenancy 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 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.

9. The presiding member was satisfied that the notice was valid and had been properly served, and that the premises had not been vacated. She was satisfied that the Tribunal had the power to make the orders sought. She recognised, however, that, for the reasons explained by Ryan J in Eastman v Commissioner for Housing [2006] ACTSC 52; (2006) 200 FLR 272, the Tribunal had a discretion under the section whether or not to make the orders. She proceeded to consider some of the factors relevant to the exercise of the discretion. She dealt in some detail with an argument which the applicant had raised based upon a letter from the respondent's office dated 5 September 2000 which included the following:

The Housing Review Committee considered your appeal against ACT Housing's decision to terminate your tenancy at 20 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 approve for you to retain your tenancy of 20 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.

10. The applicant submitted that the letter gave rise to an agreement with the respondent and that it would be unconscionable to allow the respondent to terminate the tenancy in those circumstances. He submitted that the letter gave rise to an estoppel.

11. Ryan J had dealt with the same argument in his Eastman decision of 2 June 2006, in particular at paragraphs 34-36.

12. It seems to me that there was a difference in the evidentiary material before Ryan J, in determining an appeal from the 2001 decision of the Tribunal, and the evidentiary material before the Tribunal during the 2007 hearing. Ryan J at paragraph 35 quoted observations by Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 at 217 to the effect that it was an essential ingredient of promissory estoppel that the party relying upon it must 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. In Kurtovic, Gummow J found that the respondent could not point to any change of position on his part which would operate to his detriment if the order, in that case a deportation order, stood. Ryan J at paragraph 36 asked rhetorically how Mr Eastman could point to any change in his position which would operate to his detriment if the assurance in the letter of 5 September 2000 were resiled from. It is apparent that no new evidence was admitted by Ryan J on the hearing of the appeal from the Tribunal, and that there was no evidence given in the ex parte proceedings before the Tribunal of any detriment.

13. However, there was evidence, apparently not in contest, before the Tribunal during the 2007 proceedings, that following the letter of 5 September 2000 the applicant had continued to pay rent to the respondent for the flat on the assumption that the tenancy was protected from termination until the time described in the letter. He had paid many thousands of dollars in rent over the intervening period. This evidence appears inconsistent with the statement by the presiding member at paragraph 27 of her reasons, that:

Mr Eastman is 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.

14. The present application is made pursuant to s 125 of the Residential Tenancies Act, which provides:

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.

15. 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 Classic 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.

16. I noted that the granting of leave to appeal involved the exercise of a discretion, which was to be exercised judicially though not necessarily in the same way as a similar discretion might have been exercised in an earlier case. I noted that it was not the function of the Court, in determining an application for leave, to predict the likely outcome of the appeal, except that, if it was apparent that the appeal had no prospects of success, leave should be refused. I speculated that the legislature may have seen the requirement for leave as a useful filter to relieve the Court and the parties of the time and expense which might be lost if an appeal with minimal prospects were able to be brought without leave, particularly an appeal from a tribunal such as the Residential Tenancies Tribunal where parties are often unrepresented.

17. As is clear from s 125 of the Residential Tenancies Act, quite separately from the requirement for leave, an appeal from the Tribunal lies only on a question of law. It must be accepted that the intention of the legislature was that a decision of the Tribunal as to questions of fact was to be final and not subject to appeal, except perhaps in cases of Wednesbury unreasonableness. A decision of the Tribunal is not intended to be open to appeal generally, as is the case, for example, with a judgment of this Court. No doubt there are sound reasons of public policy for this limitation, notwithstanding that inevitably some who fail in the Tribunal will have a sense of grievance about it.

18. The same limitation applies to appeals from the Commonwealth Administrative Appeals Tribunal to the Federal Court of Australia, where the extent of the limitation has been the subject of relatively recent attention. In Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 38 AAR 55, Branson and Stone JJ said (at para 18) ". . . a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law".

19. In Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522, Branson J, referring to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), quoted with approval the observation of Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119; (1988) 19 ATR 1067 at 1069-1070 that an appeal "on a question of law" is narrower than an appeal that merely involves a question of law. Where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law, as stated in the notice of appeal.

20. Her Honour went on to state explicitly that a mixed question of fact and law is not a question of law within the meaning of the section.

21. In HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291, the Court (Spender, Branson & Siopis JJ) said:

As pointed out in Birdseye . . . and Etheridge . . . , the subject matter of an appeal pursuant to s 44(1) of the AAT Act is the question or questions of law specified in the notice of appeal. . . . As Birdseye and Etheridge also make plain, the grounds required to be specified in the notice of appeal are not grounds of appeal; they are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks. It is not possible . . . to extend the subject matter of the appeal beyond the specified questions of law by itemising, under the heading "grounds", a series of alleged errors (some being errors of law, some being errors of fact and some being errors of mixed law and fact) in the reasons for decision of the Tribunal.

22. In the present case, the applicant, in an interlocutory application for a stay of the Tribunal's orders filed on 4 June 2007, listed the questions of law to be raised 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.

23. The applicant also filed a draft notice of appeal, in which the grounds of appeal were stated to be errors of law by the Tribunal in:

(a) holding that an undertaking given by the respondent's delegate on 5 September 2000 did not give rise to an estoppel; and

(b) failing to exercise its discretion under section 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 September 2000.

24. I should say in passing as to the asserted second error that I have been unable to identify any power in the Tribunal to impose a condition as to refund of rent in an order terminating a tenancy.

25. The question is whether the grounds put forward by the applicant are capable of giving rise to a pure question of law which would attract the appellate jurisdiction of this Court. Normally the Court would expect the question of law to be clearly stated in the draft notice of appeal: see Birdseye at paras 17 and 18. The Court should, however, examine the asserted grounds with a little more flexibility where the applicant is unrepresented, in an attempt to identify a pure question of law if there is one. The question of law must be one which will be determinative of the appeal.

26. It does not seem to me that the estoppel issue is capable of giving rise to a pure question of law. A finding of estoppel will always involve the determination of a mixed question of fact and law: Wiltrading (WA) Pty Ltd v Lumley General Insurance Limited [2005] WASCA 106; (2005) 30 WAR 290 per Steytler P at 302, para 28; Commissioner of Taxation v Hornibrook [2006] FCAFC 170; (2006) 156 FCR 313 per Gyles J at 323, para 32. Consideration of the estoppel issue inevitably requires reconsideration of facts found by the learned presiding member as well as consideration of her application of the law to those facts. The Court does not have power under the Residential Tenancies Act to hear and determine an appeal from a decision of the Tribunal about the estoppel issue.

27. In any event, Ryan J dealt with the estoppel issue in his reasons of 2 June 2006 between the present parties. His Honour said at para 35 of those reasons:

More significantly, a decision by the Commissioner to terminate a tenancy under the Housing Assistance Act 1987 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 . . . 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.

As authority for this proposition of law, his Honour referred to Kurtovic (supra) at 200 and earlier cases there cited.

28. Accordingly, it seems to me that the estoppel argument would be doomed even if the Court had power to hear and determine an appeal about it.

29. This leaves the Wednesbury argument. This is really an invitation for the Court to examine the merits of the Tribunal's decision, something the legislation does not empower the Court to do. It is clear that the evidence adduced by the Commissioner before the Tribunal satisfied the requirements of the legislation so that the Tribunal was empowered to make a termination and possession order in the exercise of its discretion. An appellant who seeks to challenge the exercise of a discretion on Wednesbury grounds faces the task of establishing that no reasonable person exercising the jurisdiction of the Tribunal could have exercised it in the manner in which it was exercised. The applicant is unable to point to anything about the exercise of the discretion which could possibly surmount that hurdle.

30. I am satisfied that if leave were granted, the applicant's appeal would be bound to fail. In those circumstances leave to appeal must be refused.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the respondent: ACT Government Solicitor