Harris v Commissioner for Social Housing; Towney-Kilby v Comissioner for... [2013] ACTSC 186 | Case summary

Supreme Court of the ACT|2013-09-09|Before: Commissioner For

The applicant is a current resident at Ainslie Village under a long-term lease. The applicant is medicated for a mental illness, and this treatment is seen as being undermined by an increase in antisocial behaviour at R block in which the applicant lives. The applicant no longer feels safe and this is undermining treatment for his mental health problem. The applicant cannot afford private rental accommodation as an alternative.

10. On 9 November 2007 the Commissioner offered Mr Harris unit 3 at 18 Howe Crescent Ainslie. On 14 November 2007 Mr Harris and the Commissioner entered a residential tenancy agreement which included the standard residential tenancy terms set out in the schedule to the Residential Tenancies Act 1997 as well as some additional terms required by the Commissioner which incorporated some rules applicable to flat, townhouses or aged persons units.

12. Mr Harris suffered, and continues to suffer, from a poor memory. He carefully kept a diary to remind him of what he needed to do each day and he also used it to record incidents at his residence involving John. He made those entries contemporaneously or shortly after the events in question and I accept that those entries were generally accurate. On significant issues the entries were corroborated by other documentary material or by the evidence of Mr Sullivan and Mr Kilby. In giving oral evidence Mr Harris did not seek to hide his poor memory of events and his reliance upon documentary material. I accepted that he was, within the limits of his poor memory, giving honest evidence.

13. The plaintiff Gregory Towney-Kilby, who I will refer to, as he was referred to at the hearing, as Mr Kilby, made an application for public housing dated 19 October 2007. The application was supported by a letter from his doctor, Dr Sukumar, which said that Mr Kilby:

... SUFFERS FROM CHRONIC NEUROPATHIC PAIN IN HIS NECK AND HEAD AS A RESULT OF AMOTOR [sic] VEHICLE ACCIDENT. HE HAS BEEN HOMELESS FOR EIGHT MONTHS, LIVING IN HIS CAR. I STRONGLY SUPPORT HIS APPLICATION FOR SUITABLE ACCOMMODATION IN OAKES ESTATE.

14. The application was assessed on 19 October 2007 and he was approved for the Higher Needs Housing category under the relevant determination of the Commissioner. A tenancy agreement was signed between the Commissioner and Mr Kilby on 13 December 2007. It included the same combination of terms as did the agreements of the other two plaintiffs.

15. Mr Kilby's oral evidence was not particularly impressive. He had a tendency to overstate his evidence. He became unnecessarily agitated in the witness box. While I have treated his evidence with considerable caution, the reliability of his evidence is not an issue of great significance because of the existence of contemporaneous records of what occurred between him and John and the defendant.

16. John became a resident of 18 Howe Crescent Ainslie as a consequence of an application made in July or August 2006 which was considered by the Commissioner in September 2006. Even prior to that time, in April 2006, ACT Corrective Services had communicated with the Commissioner advising that John's accommodation was unsatisfactory because he was fearful for his safety and reported a number of stressful and violent encounters with other residents.

17. His application was supported by a letter from a case manager employed by Centacare. That letter recorded that he was 50 years old and had been a resident at "Minosa House" which provided short-term accommodation to homeless adult males. Prior to residing there he had resided at a property leased from the Havelock Housing Association Inc. While residing at the property he had been hospitalised on numerous occasions as a result of unprovoked aggressive attacks by a fellow tenant. The letter recorded that during his residency at Minosa House he had been assaulted by the same individual when he was attending appointments in the city. The letter records:

John suffers from a range of medical conditions including short term memory loss. John is also alcohol dependent. In order to manage these conditions it is imperative that John can is [sic] allocated safe, secure accommodation.

In summary, John is a mature aged and gentle male who is currently residing at MINOSA House. John has also chosen not to return to Havelock Housing, due to experiencing repeated assaults and ongoing harassment/or bullying from a fellow tenant, which resulted in John being admitted to hospital on numerous occasions. John felt he had no other option other than to terminate his tenancy, as his safety was at risk and to ensure his long-term health and mental/emotional well-being.

18. The request for "out of turn" housing was dealt with by three officers of the Commissioner between 25 and 29 September 2006. A recommendation from one officer was approved by his manager and by a person identified as a "director" at Housing ACT. The request for out of turn housing was refused and the effect of that was that John remained on the "High Needs Housing List". The document records the following:

[John] suffers from epilepsy, gastritis and alcohol addiction, these conditions are worsened by stressful environments. ...

[John] had been approved High Needs Housing with effect from the 24 May 2006.

Letter dated 29 July 2006 from Jo Flynn, Minosa House, stating that as a result of the latest assault [John] has had 6 staples inserted into his skull, these attacks are greatly affecting his ability to cope. ...

Undated letter from Samaritan House indicating that [John]is a current resident at Samaritan House and that he would be required to leave after his three-week stay is completed.

19. Prior to making the recommendation that he not be provided with out of turn housing, the document records under the heading "Conclusion":

[John] has been the victim of several physical assaults including an assault with a baseball bat. He is unable to reside in accommodation like Ainslie Village or Havelock House as the perpetrator has known associates and has re-visited Havelock House after the assaults and made threats towards [John].

[John's] current medical issues and his substance abuse issues have been greatly affected in his previous accommodation.

I feel [John's] application is appropriately categorised on the High Needs Housing List.

20. John entered into a tenancy agreement with the Commissioner on 27 February 2007. His lease contained the standard terms as well as additional terms required by the Commissioner which included rules relating to flats, townhouses and aged persons units.

21. Consistently with his history of chronic alcoholism, John had a criminal history which included a series of minor offences. As a result of a conviction in 2006 he was subject to a 15 month good behaviour order and was subject to supervision of ACT Corrective Services, particularly in relation to "a significant alcohol addiction problem". After that he had convictions for minor theft and minor property damage. He was also bound over to keep the peace on two occasions as a result of breaches of the peace. He was dealt with without conviction and subject to a good behaviour order for consumption of liquor in a public place and had charges of minor theft, unlawful possession of stolen property and common assault dealt with pursuant to s 334(2)(a) of the Crimes Act. That section permits, in substance, charges to be dismissed if they are more appropriately dealt with as mental health issues.

22. However, because of the fact that he was a chronic alcoholic who was often intoxicated in public, his criminal history does not adequately reflect the extent of his interactions with the police. The police records which were in evidence disclose that on many occasions he came into contact with police because of his intoxication and on numerous occasions he was taken into police custody for his own protection because of his intoxicated state. A police report from February 2009 provides a useful summary of John's interactions with police:

Since about early 2005, [John], the Defendant now before the Court, has been regularly in contact with members of ACT Policing within the Canberra City precinct. The Defendant is a well-known chronic alcoholic who socialises and loiters in the Canberra CBD area and surrounding flats and as a result, Police have spoken to the Defendant on numerous occasions for a variety of matters, including general anti-social behaviour or for engaging in inappropriate conduct in a public place because of his intoxicated state.

On most occasions when dealing with the Defendant, he is generally very friendly with police and attempts to engage police in conversation by telling jokes. The Defendant is best known to Police for telling officers a joke about "why did the jellybean go to school, because he wanted to be a smartie". The Defendant invariably tells this joke when commencing conversation with people.

23. During most of the period relevant to the issues in this case John was subject to supervision by ACT Corrective Services. It is notable, for the purposes of the events described below, that a period of supervision to which he was subject as a consequence of a good behaviour order is recorded in the ACT Corrective Services case notes as expiring on 9 October 2008.

24. As mentioned above, James Sullivan took up his lease of unit 4 in April 2006 and John took up the lease of unit 1 on 27 February 2007.

25. Heather Arch lived in the unit below John's, unit 1, for a period up until 11 November 2007 when she moved to alternative accommodation. She was a retired nurse. Shortly after John moved in, she had cause to write to him on 17 March 2007, in very moderate and friendly terms, about noise from his unit. That letter recorded that she had received complaints from neighbours about the noise levels from his flat late at night until morning and that "[l]ast night's noise did not stop until 0900 this morning". The letter concluded: "[p]lease consider your neighbours John". Ms Arch also sent a copy of the letter to the defendant.

26. In her oral evidence, she said that she sent the letter because he was having all night parties starting in the evening at about 9.30pm and going until the same time in the morning. She heard lots of loud music and noises consistent with people or furniture falling over. Subsequent to that she made other telephone complaints to the defendant about the disruption caused by John.

27. She said that when John was on a binge, which could last from a week up until three weeks, she rang the defendant every day. She said that when he was sober he was a very personable person, just "a nice bloke who happened to be a neighbour". When he was drunk she observed that he would talk to himself and stand with his fists clenched and his upper body shaking. When that was the case she felt uncomfortable and kept away from him. She described having called the Commissioner about 50 times during the period between February 2007 and when she moved out on 11 November 2007. She had previously signed a statement saying that she had made several calls to the defendant and I find that she made a significant number of calls to the defendant but not the 50 she referred to in oral evidence. On about 10 September 2007 she noticed that there was a hole in the ceiling of her unit just above her bed. She shone a torch up into it and there seemed to be some reflecting light or something coming through it. She got the impression that there was something in the hole looking down at her, some sort of surveillance device which glinted when she shone a torch up there. She called the police but, although the police attended, their view was that no crime had been committed and they recommended that she call the defendant. She made a telephone complaint to the defendant and a home visit was undertaken the next day, 11 September 2007. This visit confirmed the existence of a hole in her bedroom ceiling which had, by this stage, been filled by Ms Arch with glue and paper to protect her privacy when she was sleeping and dressing. Understandably, Ms Arch was feeling very uncomfortable and felt that she had no privacy in her own home. The details of the incident were recorded the next day, 12 September 2007, in a file note by one of the defendant's officers.

28. As a consequence of John moving in, Ms Arch made a request to transfer to different accommodation in about March or April 2007. In about September or October 2007 she was offered an alternative residence in Spence. She did not accept that offer because when she went to inspect the unit she was assaulted by somebody who threw part of a brick at her which knocked her glasses off her face. She subsequently accepted a second offer of alternative accommodation from the defendant which permitted her to move into a unit in Scullin which was in a complex of 18 units for persons over 65 years old.

29. As indicated above, Mr Harris signed his lease on 14 November 2007. Mr Kilby, who replaced Ms Arch, signed the lease for unit 1 on 13 December 2007.

30. In the early hours of Christmas Day 2007, John returned to the block of units and found himself locked out of the stairwell. He was intoxicated. He used a brick to break a glass panel either in the door to the unit complex or a glass panel immediately adjacent to it in order to get in. This was unnecessary as he could have gone around the back of the units and got in without a key. Either when outside the front door or after having gained entry he said abusive words to Mr Harris who remained in his unit, blaming Mr Harris for locking him out. Mr Harris was upset and intimidated by what had occurred.

31. When Mr Harris emerged from his unit the next day he observed that someone had smeared sausage meat on the wall of the common area down the stairs and left some on the step outside his unit. He initially thought it was dog faeces. He was upset by the incident.

32. On 26 December 2007 Mr Harris, Mr Sullivan and Mr Kilby signed a letter of complaint which was sent to the Commissioner. Mr Harris wrote the complaint and Mr Sullivan and Mr Kilby joined in signing it. It recorded:

We, the under signed residents of Ainslie Flats, 18 Howe Crescent, Ainslie wish to lodge a formal complaint against the resident of Flat 2, whose behaviour when he has been consuming alcohol is extremely anti-social, destructive and upsetting, and apparently this behaviour has caused problems, and has been the source of previous complaints to the Department. We are intimidated by him, and [indecipherable] threatened by him when he is inebriated, and wished to petition the Department for his relocation to another property. We don't know whether previous complaints, specifically from the former resident of flat 1, resulted in any action, or formal warning, but urge the Department to take action on our behalf, as our safety and comfort are being compromised, roughly on a fortnightly basis, probably coinciding with his Centrelink payment, at the very least. We have determined that the individual in question was responsible for the broken window in the right front door of the flats, which occurred between 3 and 3:30 am on Christmas Day, accompanied by [indecipherable] threats and swearing, and the next day he threw raw sausages through the hall and down the stairwell, coming to rest in the foyer, where they remained until one of us cleaned them up. The writer, David Harris (myself) was assured by the Department that I would be allocated a flat in a quiet block, populated by residents over 45 years of age, who were all quiet, non-obtrusive people, as I suffer from a nervous condition, and require that sort of environment in order to lead a calm and peaceful existence, and given the situation as it now exists in this block this has turned out to be far from the reality I set out, and requested, in my application for Priority Housing Allocation. My nervous condition is being seriously affected, and a longer-term resident has assured me that the problem with the resident of flat 2 has been ongoing and long-term.

We are not complaining in a trivial or frivolous manner, we feel we have the right to live a settled, stable life here, and that condition is far from the reality of the situation as it now exists. We don't want to have to resort to involving the Police, which we could easily resort to, given this man's threatening behaviour, as we fear such an action would lead to reprisals against us, so we are appealing to you to take action to resolve this situation. Sincerely, and in good faith, [signed]

33. The end of the letter refers to an attached addendum. That addendum, which is dated 15 January 2008, records:

I would like to add that on 3/1, partly as a result of John's unacceptable actions, I experienced an episode of deep depression and was admitted to the Psychiatric Ward at Calvary Hospital (on 5/1) where I remained until 11/1 until fit for discharge.

I was deeply affected by John's behaviour, and I felt I had "jumped out of the frying pan into the fire", as I left Ainslie Village and took this Unit specifically to get away from the sort of alcoholic/drug-related behaviour John engages in when inebriated (which from my observations and those of Greg in flat 1 and Jim in flat 4 is frequent.)

Apart from the preceding I am happy here, and have no wish to move elsewhere, so I would appreciate any interventions are Department is able to take to resolve this situation.

Please see Hospital Discharge form attached. Refer all to Pamela Hackman, who made aware of the situation personally.

34. This letter was received by the defendant on 25 January 2008. I am satisfied, having regard to the folio numbering in the defendant's files that the hospital discharge form referred to in the addendum was received with the letter.

35. Mr Harris was cross-examined about the reference in the letter to being assured that the residents would be "over 45 years of age ... all quiet non-obtrusive people". He conceded in cross-examination that this was what he assumed and expected but that he had not been told by anybody at ACT Housing that he would be housed with people without alcohol or mental health problems.

36. The hospital discharge form attached to the letter was a "Mental Health ACT Nursing Discharge Summary" which records, in relation to, Mr Harris:

Patient has a history of [bipolar affective disorder] this episode in a depressed phase. Along with his depression there were 2 issues associated with this admission is that the unit he lives in the above unit the occupier is noisy and abusive, the other he was told by his daughter that she does not want anything to do with him. He has since settled with no further thoughts of self harm.

37. Mr Harris had in fact attempted to commit suicide on 3 January 2008 having injected, on the evening of 31 December-1 January, a "street deal" of heroin. Mr Harris' diary contains an entry on 1 January 2008: "John playing up". On the 2 January 2008 Mr Harris' diary has an entry: "John causing more trouble". I accept that when such entries were made by Mr Harris, John had behaved in a manner that involved creating unreasonable noise sufficient to disturb the other residents in the block of units.

38. On 3 January 2008 Mr Harris took an overdose of drugs. A suicide note meticulously recorded what he had taken and indicated that he expected to die as a consequence of doing so. However he awoke the next day, vomited and called the ambulance. He was taken by ambulance to the Calvary Hospital at 8.45pm on 4 January 2008. The hospital records state:

Lives alone in Canberra. Estranged from his family for many years. Attended a family reunion just before Christmas in Brisbane. Met up with his father, two sons and a daughter. He states that the reunion went well. His daughter has subsequently rejected his attempts to maintain contact. He recently moved from Ainslie Village to a one bed room flat in Ainslie. He was very happy about this but has subsequently discovered that he has an abusive alcoholic living upstairs, who abused him on Christmas day.

39. Similarly, a history taken at the hospital recorded:

Christmas day co resident at Ainslie Flats smashed front window & smeared raw sausage at his home.

[Daughter] sent text stating she needed space & requesting he not call her.

Felt very upset. Took shot heroin in NYE after 7 yrs abstinence.

40. Mr Harris was discharged from the hospital on the afternoon of 11 January 2008. By this stage he had settled and had no further thoughts of self harm. He was followed up after his discharge by hospital staff as well as his GP and seen again later in January, March, June and October 2008.

41. Following receipt of the plaintiffs' letter on 25 January 2008, on 31 January 2008, a Team Leader from the Complaints Management Unit of the Department of Housing and Community Services wrote to Mr Harris thanking him for his correspondence. It said "[y]our complaint has been passed to Anne Edwards, Manager of the Central Region to coordinate a response". It gave him a complaint reference number (8350) and indicated that he could expect a response advising of the outcome of the investigation by 29 February 2008. It said that if he wanted information on the progress of his complaint or on the complaint handling policy he could contact the Complaint Management Unit on a telephone number which was set out.

42. As a consequence of complaint 8350, Pamela Hackman, a Housing Manager employed within ACT Housing, conducted a "Client Service Visit" at John's property on 22 February 2008. She raised with him the matters raised in complaint 8350, namely, a sausage being thrown down the stairs on Christmas day and antisocial/destructive behaviour when under the influence of alcohol. John denied throwing the sausage down the stairs on Christmas day. He was reminded that any such behaviour would be a breach of his tenancy agreement and would not be acceptable. He insisted that he had not thrown a sausage down the stairs. In relation to the complaint of antisocial and destructive behaviour John agreed that he sometimes "had a drink of alcohol and that he may not be as sociable on occasions". Ms Hackman explained his obligations to him and offered to put him in contact with some support groups that could assist him. He said he would think about the offer. He disclosed that he was illiterate. Ms Hackman said that he could call her and ask her about any ACT Housing letter and she would be happy to explain the contents of those letters to him. John thanked her for her offer and said that he would be mindful of his actions and just simply stay away from the other tenants of block 18 to avoid further conflict.

43. On 9 May 2008 Ms Hackman spoke to Mr Sullivan who said that there were no problems of antisocial behaviour or any other issue with John since Christmas Day 2007 and that he was very happy.

44. On 12 May 2008 an anonymous complaint was received by the defendant about fire alarms being set off by John. It was assigned a complaint number (9161). On the same day a complaint was received from Mr Kilby about John "continuously being noisy in his unit". It was assigned a complaint number (9164). The complaint included a complaint that the mother and father staying with John went off somewhere and left small children with John while he was drunk. Mr Kilby stated that he feared that the baby could get hurt. Mr Kilby is recorded as stating that the tenant had been "an absolute nightmare ever since he moved into the unit". I accept that these complaints about the conduct of John and his guests accurately record what was occurring at the property.

45. As a consequence of the complaints, Ms Hackman did a number of things. Because there was mention in the complaint of concern for the visiting children's welfare, on 20 May 2008 she made a report to "Care and Protection", the name commonly used to describe that part of the Department of Housing and Community Services dealing with child welfare issues. The next day, 21 May 2008, she sent a letter to John giving him a "Notice to Remedy" alleging breaches of various clauses of his lease signed on 27 February 2007. The letter recorded:

Housing ACT has received information indicating that loud noises are coming from your unit consisting of thumping and banging of doors. That the fire alarms in this Complex have intentionally been activated by yourself and further that children have been playing in the stairwell.

46. The notice gave him 14 days to rectify the breach.

47. She also sent him a letter concerning "undeclared residents living in the property" which was relevant to the amount of rental rebate to which he was entitled. He was requested to contact the Housing ACT office to provide the required documentation about these persons within 28 days of receipt of the letter.

48. On 27 May 2008 John attended an office of the defendant in response to receiving a notice to remedy and a letter requesting further documentation about his guests residing at the property. He had a meeting with Ms Hackman. The complaints that had been made were put to John and what occurred is recorded in a contemporaneous file note as follows:

[John] stated that he was looking after the children and that he tried to limit the sugar intake of the children in an attempt to keep them quieter. [John] admitted that the children had lit sparklers in the stairwell for entertainment.

[John] stated that he did try to keep noise levels down to a minimum while his guests were staying in his property but as there were more people staying in his property the noise levels from normal traffic were increased.

I explained to [John] that he had breached his tenancy agreement and had 14 days Notice from the date of the Notice To Remedy to rectify the situation.

[John] stated that he had already rectified the situation by organising temporary accommodation through his church for his guests.

[John] stated that he could not have had his guests stay in the property any longer as he finds it hard to have any person stay with him for a period of longer than two weeks.

I reminded [John] of his obligations under his tenancy agreement.

[John] stated that he would be mindful of any noise generated form [sic] his property.

[John] provided a Statutory declaration stating that his guests entered that property on Friday 2 May 2008 and left the property on 21 May 2008.

49. As a consequence of these actions, Ms Hackman wrote to each of Mr Sullivan, Mr Kilby and Mr Harris in the same terms addressing the complaint signed by all of them which had been given the number 8350. Those letters dated 10 June 2008 were as follows:

Thank you for your letter to Housing ACT Complaints Management Unit regarding your concerns about anti social behaviour from a Housing ACT tenant.

I would like to inform you that Housing ACT has taken your concerns very seriously and appropriate action has been taken to remedy your complaint.

As I am sure you understand, Housing ACT is bound by the Privacy Act, and therefore I am not able to disclose to you the specific details of the action I have and will be taking to address your concerns.

I would urge you to contact the police on 000 in the first instance if you feel intimidated or threatened by the behaviour of your neighbours.

I would like to thank you for raising these issues and if you have any further concerns, please call Housing ACT on [telephone number] so that we can investigate the matter further.

50. Several points can be made, at this stage, about complaint 8350.

(a) Between submitting it and the letter of 10 June 2008 the only direct correspondence in reply from the defendant was the letter of 31 January 2008.

(b) There is no evidence that Mr Harris took any particular steps to follow up the progress of his complaint or obtain information on the complaint handling policy as he was invited to do in the letter of 31 January 2008.

(c) Mr Sullivan was clearly aware of some action being taken by the defendant as a consequence of being visited on 9 May 2008 by Ms Hackman at which time he indicated that everything was going well and there had been no problems.

(d) Whilst many of the actions of the defendant were not disclosed as a consequence of the defendant's concerns about the operation of the Privacy Act, the defendant did take substantial action in response to the complaints in January (8350) and May 2008 (9161 and 9164).

(e) The picture that was painted to the officers of the defendant by John about the situation was very different from that which was reported by the plaintiffs.

51. There were no further complaints about John made to the defendant in the period between June to October 2008 and Mr Harris' diary does not record any disturbances.

52. Although the criminal history that was in evidence does not identify why this was the case, in the period November 2007 until October 2008 John was subject to supervision by ACT Corrective Services as a consequence of a good behaviour order. The case notes prepared during the course of supervision indicate that John reported to Corrective Services in February, March, April, May, June, August 2008. At those meetings he reported attending Alcoholics Anonymous meetings and being abstinent from alcohol since either September, October or November 2007. In September 2008 he reported consuming alcohol. On 7 October 2008 he failed to report for supervision. The case notes record that the good behaviour order to which he was subject expired on 9 October 2008.

53. Police records disclose that during the period November 2007 until October 2008 John was regularly found in a variety of public places around Canberra making a nuisance of himself whilst intoxicated. Those records disclose intoxicated interactions with police on 1 and 30 November 2007, 11 and 24 February, 9, 10 May, 7 July, 3, 4 September 2008.

54. It is therefore clear that John did not abstain from alcohol use in the manner that he reported to officers of Corrective Services. He was sophisticated enough in his dealings with Corrective Services officers to report what they wanted to hear. Notwithstanding his deceptive conduct, the supervision by Corrective Services may have placed some constraints upon his drinking behaviour. In the period after the expiry of the good behaviour order until February 2009 John's alcohol abuse and, consequently, his disruptive behaviour, worsened.

55. The period between 13 and 17 October 2008 was a period during which John was a substantial source of disruption to his neighbours and had significant involvement with the police. Mr Harris' diary records on 14, 15 and 16 October, "police to John". On 17 October an entry records, "I rang to report a disturbance to police re man across Road and [John]".

56. Mr Kilby made a complaint to the defendant late in the evening of 13 October 2008 (complaint 10505), saying there was loud music every night and the tenant was drunk every night. He claimed that John had a bowling ball that he dropped on the floor to make annoying sounds. He said that John yelled and screamed a lot so that Mr Kilby could not sleep. He also said that John threw rubbish and food scraps throughout the common stairwell on which he slipped and injured himself on exiting his front door. He said he banged his arm on the steel railing as he fell. He said he could not sleep and that was affecting his health. The person who took Mr Kilby's call recorded that "Maintenance" was called to have the stairwell cleaned as it was a hazard to tenants.

57. In oral evidence, Mr Kilby described slipping on food in the stairwell when he was just outside the door of his unit investigating the "ruckus" coming from upstairs. I accept that he slipped on food and fell, banging his right elbow on the metal handrail next to the stairs, and twisting his ankle.

58. On 14 October 2008 at about 11am Mr Sullivan called to complain about John (complaint 10504) saying that he had given the tenant about 10 or 11 chances but he kept repeating the antisocial behaviour and the other tenants wanted it to stop. He said that at about 12.30am on 14 October, John came home drunk and was very loud. Mr Sullivan called the police who came and spoke with him. About 10 minutes after the police left the noise started again. Mr Sullivan approached John and asked him to quieten down in response to which he received verbal abuse and threats to the effect of "you're dead". Mr Sullivan was advised by the Complaints Management Unit to contact the police again. Mr Sullivan said that at about 4am he saw John throwing and tipping rubbish and food scraps around and down the stairwell. He complained of not getting sleep due to the noise from the tenant and said he "can not take much more".

59. Police records establish that an anonymous person, who is likely to have been Mr Sullivan, did make a complaint in the early hours of 14 October about John's conduct. The complaint, as recorded in police records, was that persons inside John's unit had been "yelling and screaming and going off for last 30 min". John was inside by himself and under the effect of cannabis. No other persons were present and there were no signs of any disturbance or damage.

60. At some time, although it is not possible to say when, Mr Sullivan had a conversation with Ms Hackman or one of the other housing managers where he was offered to move to another unit. He declined the offer saying that he did not want to move.

61. It is clear that during this period in October 2008, John was not just making a nuisance of himself at home. At around 3:30pm on 15 October 2008 police were called to the Belconnen bus interchange where John was in an intoxicated state behaving in a threatening, aggressive and agitated state. He became aggressive towards police and threatened to "kill us all". He was placed in protective custody and taken to the city watchhouse. The next day, police were called to attend Lanyon Marketplace, a shopping centre in Conder. John was found there in an intoxicated state, swearing and yelling at shoppers. He became aggressive towards police, saying "I will fucking kill you". He was taken into police custody.

62. On 16 October 2008 John had his television on loud, was banging doors and yelling out his door and windows. In the early hours of 17 October 2008 police were involved again when they were called at around two o'clock in the morning by Mr Sullivan. The complaint, as recorded in police records, was that John was "screaming and yelling from inside his unit. [The complainant] states that this has been going on for the past hour and is a regular occurrence". Police attended and Mr Sullivan told them that John had his television turned up loud and was yelling at it. Police spoke to John who was heavily intoxicated but not making excess noise at the time and the television was turned off. He was advised to be more considerate of his neighbours and he agreed to keep the noise down. John started up again after they left and Mr Sullivan knocked on his door and exchanged words with him. Mr Sullivan went back to his unit and the noise from John continued so Mr Sullivan left the property to buy some cigarettes. When he returned he found the stairs covered with lettuce and vegetable scraps. Later that evening, John was seen by police on a number of occasions drinking in Civic. After being warned by police not to drink in a public place and told to go home he was ultimately arrested for consuming and possessing alcohol in a public place. Because of his disrupted night, Mr Sullivan called his work to inform them that he could not go to work on that day.

63. In response to these complaints made by Mr Kilby and Mr Sullivan, on 20 October 2008 Ms Hackman sent a letter to John making an appointment to discuss complaints that had been made. The appointment was for 2pm on Monday, 27 October 2008.

64. On 27 October 2008 Ms Hackman gave John another notice to remedy, alleging a breach of clause 70 of the standard terms which prohibited a tenant from interfering or permitting interference with the quiet enjoyment of the occupiers of nearby premises. The notice said that:

Housing ACT has received information indicating that you are causing neighbourhood disturbances such as playing loud music at night and anti-social behaviour such as loud screaming and other loud noises that is disturbing other tenants peace and quiet enjoyment of their properties. Food scraps being thrown on the floor of the common stairwell.

65. That notice was given to him when he attended with a worker from ASSIST and had a meeting with Ms Hackman and the Commissioner's Client Support Coordinator. The complaints made in complaints 10505 and 10504 were outlined to John. He said that he had not been noisy or disruptive except on one occasion when he had guests for half an hour on 15 October 2008. He denied owning a stereo and said his radio could not generate much noise. On this issue the support worker from ASSIST corroborated the fact that John did not own any property that could generate loud noise. He was asked about food in the stairwell and John said the only time was when he had guests over and half a hamburger was dropped. He stated that on occasions he did throw bread onto the lawn on and around the gumtree for the birds. He was informed that he was in breach of his tenancy agreement if he left food on the common area stairwells. After being given the notice to remedy and having the contents of it explained to him, John said that he understood what he was required to do. The Client Support Coordinator explained to John that if Housing ACT received any further complaints the next legal notice that may be served may be a notice to vacate. John said that he understood.

66. This information given by John to Ms Hackman was not correct. He had acted in a substantially disruptive fashion over a number of days. However, it is important to note that he made no admissions and that this had the potential to make the defendant's task of managing or evicting him significantly harder.

67. On 29 October 2008 the defendant received a letter dated 26 October 2008 from Mr Harris complaining about John. The letter, although making a complaint about John and the defendant, was a model of courtesy. Mr Harris referred to the problem of antisocial behaviour and alcoholism that John displayed. The letter referred to the disturbances which compelled his neighbours to call police. He continued:

I requested, and was assured I would be moving into a block inhabited by quieter, older people, and this block is certainly not quiet or occupied by older people...

68. The letter then complained about Mr Sullivan waking him when he left early for work and when his teenage daughter stayed there. He referred to a threat by Mr Sullivan to call the police if he didn't turn his TV down. He referred to suffering from bipolar disorder and appealed to Ms Hackman to advise him about obtaining a transfer to more suitable housing. This was a possibility that he had been aware of but had been reluctant to pursue previously because he was friendly with Mr Sullivan and Mr Kilby.

I appreciate your kind attention, and await your advice with anticipation and thank you for your possible consideration, and help, to achieve a more suitable environment, where I can live a peaceful life, which is all I ask, and all I aspire to sincerely and with best wishes, [signature].

70. On 5 November 2008 Ms Hackman wrote to Mr Kilby in response to his phone call to the Complaints Management Unit (complaint 10505) about his concerns about "a Housing ACT tenant playing loud music every night, making loud noises including yelling and screaming and leaving food scraps in the common area stairwell." She said:

I would like to inform you that Housing ACT is taking your concerns very seriously. As I am sure you understand, Housing ACT is bound by the Privacy Act, and therefore I am not able to disclose to you the specific details of the action I have and will be taking to address your concerns.

71. The letter suggested that he call the police if he felt intimidated or threatened by his neighbour.

72. Ms Hackman wrote a letter in similar terms to Mr Sullivan on the same date about complaint 10504.

73. On 14 November 2008 Mr Kilby reported to police that John was with a male known as Paul and that Paul was upstairs yelling out that he had a gun and asking "who wants to die next". Police attended the property a few minutes later and found there was no damage, no noise and no other persons concerned about John. Police observed that the apartment was secure and there was no noise inside.

74. Mr Harris' diary records that in response to this incident he rang ACT Housing.

75. On 17 November 2008 Mr Kilby called the Complaints Management Unit about John (complaint 11081) saying that very recently he was walking around the flats yelling "who's going to die tonight, he's going to die tonight, who's up". He was drunk and went to his unit and started waving around what looked like a gun. The police were called. He made a complaint that John's friend was back and they were still making noise and throwing rubbish in the stairwell.

76. On 27 November 2008 Mr Harris' diary records an entry at 9.30am: "John playing stereo loud!" and at 9.00pm: "John playing music loud again!!"

77. Mr Harris and Mr Kilby first saw solicitors in mid-November 2008. On 8 December 2008 Mr Harris recorded that his solicitors were preparing a letter for Housing that day. On 9 December 2008 he recorded at 6pm "John drunk + loud!! Slamming doors, playing loud music".

78. On 10 December 2008 Mr Kilby made a telephone complaint to the defendant. This was recorded in the defendant's documents as complaint 11421. He described John as "a timebomb". He is recorded as saying:

[p]eople in the complex do not want to come out of their units when he is around. Last night 9/12/08 Mr Kilby claims that the tenant started banging doors at around 11.00pm, he then turned his music up really loud and was hanging out the window screaming "who's going to die tonight". This went on until about 2.00am. Mr Kilby claims that the tenant laughs at them when he comes across them as HACT are doing nothing to stop the disturbances.

79. Consistently with what appears in the defendant's records, Mr Harris recorded in his diary on 10 December 2008 that Mr Kilby rang ACT Housing concerning John. An entry for the evening of the same day records: "John played up again tonight - still shouting at 3 AM!" On 11 December 2008 he has a reminder to "ring Blumers re John + letter to Housing".

80. On 12 December 2008 the support worker who attended the meeting on 27 October 2008 wrote to Ms Hackman saying that "all indications seem to be that when John drinks to excess he has blackouts and cannot remember what has happened, therefore cannot recall his previous anti-social behaviour". He set out the discussions that he had had with John in an attempt to minimise his drinking and deal with detoxification and rehabilitation.

81. On 12, 18 and 23 December 2008 Ms Hackman attempted to make contact with John over his noise and disruptive behaviour complaints. She left a calling card for him on those dates.

82. On 23 December 2008 Ms Hackman had a home visit with Mr Kilby and explained Housing ACT's complaint and legal processes. She asked whether he would be willing to testify in court over his complaints about John. She explained that ACT Housing had a "Disruptive Behaviour Record". This was a collection of standard forms used to record the disturbances in circumstances where legal intervention may be needed. It was sometimes also referred to as a disruptive behaviour pack. It contained instructions on how to fill it out. Mr Kilby expressed an interest in completing one and asked for two more packs to give the other residents.

83. On 1 January 2009 there is an entry in Mr Harris' diary that states: "John making noise at 4 AM!"

84. Ms Hackman wrote to Mr Kilby on 5 January 2009 thanking him for his letter to Housing ACT Complaints Management Unit. This was in response to complaints 11081 made on 17 November 2008 (see [75]) and 11421 made on 10 December 2008 (see [78]). The letter said that Housing ACT had taken his "concerns very seriously and appropriate action has and will be taken to remedy your complaint". It referred to the fact that she had provided him with a Housing ACT disruptive behaviour pack to assist in recording the disruptive and antisocial behaviour with reply paid envelopes for his convenience.

85. On 9 January 2009 Ms Hackman called Mr Kilby to check if he had any questions about the disruptive behaviour packs. He said that he had provided them to Mr Sullivan and Mr Harris and that they should all be submitting the disruptive behaviour packs early next week.

86. On 9 January 2009 Ms Hackman wrote to John referring to the notice to remedy issued on 27 October 2008. In the letter she says:

This letter is to advise you that Housing ACT has received further complaints alleging that you are causing neighbourhood disturbances such as playing loud music and anti-social behaviour such as loud screaming, threatening behaviour and other loud noises such as banging doors that is disturbing other tenant's peace and quiet enjoyment of their properties as well as rubbish being thrown on the floor of the common area stairwell.

87. The letter says that the conduct amounts to a breach of clause 70 of the standard terms of the lease as well as various other provisions. It warns that "if the disruptive behaviour is not remedied and Housing ACT receives further complaints a Notice to Vacate may be served on you from 12 January 2009".

88. On 13 January 2009 there is an entry in Mr Harris' diary that recorded: "John shouting, swearing, playing loud music until 4 AM!" The next day, 14 January 2009, he recorded: "John playing up again today, rang Housing, Police, EPA. No response".

89. On 20 January 2009 Mr Kilby filled out disruptive behaviour pack forms relating to the incident on Christmas Day 2007 as well as the incidents on 13-14 October 2008.

90. At the same time he also recorded complaints in relation to events on 29 November 2008, 30 November 2008, 9 January 2009, 10 January 2009, 18 January 2009 and 19 January 2009. These are complaints which may be summarised as loud music, swearing, threatening behaviour, slamming doors and windows and screaming.

91. Mr Sullivan completed filling out the forms in the disruptive behaviour pack some time shortly after 19 January 2009 and recorded the incidents on 13-14 October 2008, 15 October 2008, 16 October 2008. He also completed documents headed "statement of complaint" which Mr Sullivan filled out with complaints relating to events on 29 November 2008, 30 November 2008 9 January 2009, 10 January 2009, 18 January 2009 and 19 January 2009.

92. Mr Harris completed his forms in the disruptive behaviour pack on 20 January 2009. He described the incident on 13-14 October 2008. He also made complaints about conduct on 29 November 2008, 30 November 2008, 9 January 2009, 10 January 2009, 18 January 2009 and 19 January 2009.

93. On 20 January 2009 Mr Harris' diary entry for 5.30pm recorded "John stood on grass verge and made a gesture pretending to aim a rifle at Greg's window!" On 21 January 2009 his diary entry recorded: "John + boarder (has been staying for two weeks now) playing up all afternoon."

94. On 3 February 2009 the entry in Mr Harris' diary for 5.30pm is "John came home shouting + slamming doors. Houseguest of one month involved".

95. Mr Harris completed his forms in the disruptive behaviour pack sometime after 4 February 2009. He recounted the incident on 25 December 2007, stated that John was frequently inebriated and played his stereo and TV loudly. He said he used abusive and intimidating language such as "somebody is going to die tonight" and that this behaviour had continued throughout 2008 and 2009. He reported events on 14 October 2008 and 17 October 2008. He complained about being put into a block of units with such a person. He referred to the fact that he was taking legal action against the "Department of Housing". He referred to John attacking Mr Kilby with an iron bar on 4 February 2009.

96. This last reference is explained by his diary entry which reports information given to him by Mr Kilby:

John jumping up and down on the floor and playing loud music. Greg had a go at him and he promised it wouldn't happen again! Greg turned John's electricity off, John confronted him with an iron bar, Greg punched him. John later apologised and said he was very angry because he'd been told he has to move by housing. I rang Phil Schubert at Blumers to report incident.

97. There is then a reference to events that happened at 10.30pm and midnight that evening which are explained in police records.

98. Police records show that on 4 February 2009 at about 6pm, police identified John walking along Bunda Street with a piece of timber similar in length to a wooden shovel handle. Police spoke to him and he agreed to place the handle in his backpack and continue home. At around 10pm the same evening, police received a complaint from Mr Kilby that John had a crowbar and was trying to gain entry to his own unit with the crowbar. Police could not find John. Police were called back at about 11.40pm and saw two males standing at the upstairs window. One of them was John. Police asked John to come down and talk with the police to which he replied "Fuck off or I will shoot you". He was waving a broken wooden handled hammer around. After a short period of negotiation police got John to come down to the front lawn. John made several threats towards his neighbours including a threat to jump through Mr Kilby's window and kill him. He was placed under arrest for a breach of the peace. He was subsequently taken by police to the Canberra Hospital. On 6 February 2009 he absconded from hospital. He was found at 3.45pm that day and taken back to the Canberra Hospital.

99. Mr Sullivan made a telephone complaint to the Acting Regional Manager of Central Region of ACT Housing about John's conduct in early February. He complained about incidents on 1 and 3 February where John used a crowbar to attempt or gain access to his unit. He described the incident on 4 February 2009. He said that on 5 February 2009, John was apprehended by the police. He said that on 6 February 2009 John returned and threatened Mr Sullivan. He asked the defendant to find alternative accommodation for himself or remove John. The Acting Regional Manager spoke with another manager at ACT Housing who advised that additional security would be put in place for the weekend and that Mr Sullivan would be visited on Monday 9 February 2009. Mr Sullivan said that he did not see any additional security measures and could not recall being visited on the Monday. I cannot find that those additional measures were put in place or that Mr Sullivan was visited notwithstanding the intention of officers of the defendant to do so.

100. On 6 February 2009 Mr Harris' diary records: "John back! Still disruptive".

101. On 9 February 2009 Mr Harris signed a "witness report" dealing with events on 25 December 2007, 14-17 October 2008 and 4 February 2009. In relation to the incident on 4 February he records that John attacked Mr Kilby with an iron bar, was arrested by the police and threatened to "kill you all". He had a meeting with Ms Hackman and another officer of the defendant and provided them with the incident reports. His diary records: "meeting with Pam +? (Sarah) from Housing Department. Discussed problems with John + gave them incident reports. Advised Phil Schubert [his solicitor]." Mr Kilby signed a "witness report" which confirmed that he had read Mr Harris' statement and confirmed that it was correct.

102. On 17 February 2009 Mr Harris' diary entry states at 11.00am: "John drunk + blasting stereo". The entry for 1.00pm the same day was "police came to John's and took him away in a squad car!" He was arrested by police in relation to an allegation of stalking. On 18 February 2009 Mr Harris recorded: "John came back. Played stereo even louder than yesterday + stomped on floor. Had words with Jim [Sullivan]. Left + caught bus at 1:50 PM". On 19 February 2009 John was arrested for a breach of bail conditions at the Westfield Woden shopping centre. On 20 February 2009 he was arrested again for a breach of bail and this time he was remanded in custody.

103. On 23 February 2009 a representative of the Department of Housing and Community Services wrote to the ACT government solicitor saying:

Advice received from [the Commissioner] on 18th February 2009 was that although discussions have been ongoing in an attempt to resolve these issues, [the Commissioner is] in the process of issuing a Notice to Vacate.

104. Between 20 February and 2 April 2009 John was remanded in custody. On 9 April 2009 charges of common assault, minor theft and unlawful possession of stolen property were dismissed pursuant to s 334(2)(a) of the Crimes Act.

105. John was released on bail on 2 April 2009. The entry in Mr Harris' diary on 2 April is "John back!!" On 3 April 2009 he recorded that John was "playing loud music, etcetera". John was found by police in an intoxicated state at McDonalds in Dickson on the evening of 4 April 2009 and arrested for breaching his conditions of bail. On 8 April 2009 Mr Harris recorded "John extremely drunk, yelling, cursing, playing music extremely loudly, annoying people at bus stop. Fell asleep at bus stop but gone at 1.15".

106. On 10 April 2009 Mr Sullivan called police. John had been playing loud music. Mr Sullivan had spoken to him a number of times about it and had been met with abuse and threats. John came into his unit and began abusing him and threatened to kill him. Mr Sullivan believed he was intoxicated and would not carry out the threat but believed that John may cause a confrontation and violence would result. Police were called and located John asleep on the ground beside a bus stop a short distance away on Chisholm Street in Ainslie. He was very clearly under the influence of an intoxicating substance. When spoken to by police he demonstrated mood swings and was verbally aggressive towards police. He was taken to hospital and ultimately bound over to keep the peace by the Magistrates Court.

107. The entry in Mr Harris' diary on 11 April 2009 recorded "John threatened to stab Jim - police came + took him to jail." On 12 April 2009 Mr Harris recorded: "John playing stereo loudly again still playing [stereo loudly] up to 2 am when Jim [Sullivan] confronted him!"

108. By 17 April 2009 Mr Sullivan was so distressed by the return of John to the premises that he called the Crisis Assessment and Treatment Team at the Canberra Hospital reporting that he felt homicidal and that:

[h]e has been having issues with a man who has been threatening him for 2 years. The man in question was released from jail last friday and has already apparently threatened to kill James.

He reported that he was experiencing severe sleep deprivation and had fallen asleep at the wheel while driving. He described himself as being at the end of his tether and reported that no one will help him. He subsequently received follow-up contact from the CATT. He continued to report significant symptoms even after John had left the property.

109. On 28 April 2009 Mr Harris recorded, "4 police visited John - reason unknown but think he was warned not to appear in public under the influence of alcohol."

110. On 29 April 2009 Mr Harris recorded: "phone call from Pamela Hackman Dept Housing re - court appearance at tribunal against John."

111. On 30 April 2009 Ms Hackman prepared a request to issue a notice to vacate. That was a document which needed to be signed and approved by her manager. It recorded a number of efforts since 11 December 2008 to contact John or otherwise get assistance in dealing with him. It also recorded that between 20 February 2009 and 2 April 2009 he was held in custody on remand. The request was approved by her manager who signed the form under the printed text:

I believe the Housing Manager has explored all appropriate options in assisting the tenant to comply with the Tenancy Agreement. Consistent with the relevant legislation, policies and procedures I AGREE to issue a NTV to the tenant.

112. On 1 May 2009 the defendant gave John a termination notice requiring him to vacate the premises before 17 May 2009. This notice was based on the notice to remedy served on 27 October 2009 and the fact that he had caused an interference with the quiet enjoyment of occupiers of nearby premises. It was served personally on John at his flat. Mr Harris recorded that he was telephoned by Ms Hackman about some documentation relating to John.

113. On 5 May 2009 Mr Harris provided a detailed chronology from November 2008 through 2 April 2009 of disruptive behaviour by John. His letter referred to his and his neighbours' health suffering as a consequence of John's actions. He referred to what he said was an assurance that he was moving into a block where his neighbours were quiet and reasonable. As I have indicated above, that reflected Mr Harris' expectation rather than any actual assurance by a representative of the defendant. He referred to his bipolar disorder and the steps that he had been required to take to deal with John's behaviour. The letter also referred to him having sought legal advice in attempt to resolve the issue. The defendant received this letter on 8 May 2009.

114. On 14 May 2009 Ms Hackman wrote to Mr Harris in response to the statement of complaint that he had provided to Housing ACT in response to her request for further information about the destructive and antisocial behaviour of a neighbour. She said that because of the Privacy Act she could not disclose the specific details of the action that she had taken and would take to address his concerns about his neighbour. She suggested he call the police if he felt threatened or intimidated by his neighbour.

115. On 15 May 2009 an internal document of the defendant records that a complaint of antisocial behaviour was dealt with by referring it to the manager of the central region. It records the response to the complaint was "NTR Served for noise and nuisance 1/5/09 - see attached". The complaint was recorded as being closed on 15 May 2009.

116. On 15 May 2009 Mr Harris recorded, jubilantly: "John moved out - back to Ainslie Village!" On 20 May 2009 John signed a "surrender of keys" document indicating that he had formally handed back the keys to the property.

117. The entry in Mr Harris' diary on 12 March 2009 indicates a desire to add to the records of the consultation with "Dr Chris" (Dr Christine Phillips) a reference to stress due to problems with his neighbour on 14-17 October 2008. This is consistent with Mr Harris at this stage being concerned to generate evidence that might improve his case against the defendant. Similarly the entry on 12 May 2009 recorded: "Dr Glanville Mental Health. Discuss problems with [John] + why I perhaps failed to mention this at our initial appointment. Take last year's diary to confirm...". This further demonstrates the plaintiff's consciousness of the legal process.

118. There was also in evidence some video footage taken from a camera located outside Mr Sullivan's front door. It was taken when John, Mr Sullivan and Mr Kilby resided in their units but the date of the video is not clear. It is likely to be some time after November 2008 when advice from solicitors was first obtained. It shows the front door of John's unit and it is possible to hear rock music in the stairwell. It shows John, in an intoxicated state, leaving his unit and going down the stairs. Mr Sullivan can be heard saying unpleasant things to him through the door. Taking the bait, John responds by kicking the screen door on Mr Sullivan's property. He combines threats of cutting Mr Sullivan in half and blowing up his car with apologies and statements that Mr Sullivan is a "good bloke" and he is trying to be his friend. When John goes down stairs Mr Kilby can be heard being unpleasant to John at the bottom of the stairs.

119. Mr Sullivan described the situation prior to Christmas Eve 2007 as involving disturbances every month, some of a high degree, some of a low degree. It involved loud music after 11 o'clock at night and screaming and yelling coming from John's flat. That is consistent with Ms Arch's evidence. Between January and June 2008, Mr Sullivan described John as clamming up for a while and then the noise would come back. I am satisfied that even during the period from December 2007 to May 2008 noise disruptions caused by John continued. They were not significant enough to warrant complaints to the defendant or at the level prior to the December 2007 incident. As a consequence, Mr Sullivan reported to Ms Hackman in early May 2008 that he was happy with the situation.

120. In May 2008 there was a period of significant disruption caused by the guests staying at John's flat. The complaints arising out of that period led to a notice to remedy being issued. While I am satisfied that there was some noisy behaviour after that it was not sufficient to warrant any complaints to the defendant or even for Mr Harris to make any record or note of disruption in his diary. It constituted a background level of inconsiderate conduct but did not provoke any crisis.

121. Following the expiry of the good behaviour order in October 2008 there was the very significant period of disruption between 13 and 17 October 2008. After this both John's intoxicated behaviour worsened and the recording of his bad behaviour by the plaintiffs increased. Between November 2008 and February 2009 there was continuing incidents of intoxicated disruption. This led to the defendant distributing the disruptive behaviour packs to allow it to gather evidence to support a termination and possession order. The defendant came to the realisation by February 2009 that it would have to give a notice to vacate. That process was interrupted by John's remand in custody in March 2009 but when he was released, he continued to be disruptive. At the end of April the formal decision was made to issue a notice to vacate the premises although steps were still being taken to gather evidence to support the termination if it was contested.

122. In each of the proceedings the defendant has pleaded that at all material times it was acting in the exercise of functions given to it under s 11 of the Housing Assistance Act honestly and without recklessness and as a consequence is entitled to immunity from personal liability granted under s 37 of the Housing Assistance Act. The defendant submits that because of s 37, the defendant is protected from liability and, because the plaintiffs have not sued the Territory, their claims must fail in limine.

123. In 2008, s 37 of the Housing Assistance Act provided:

Protection of officials from liability
- (1) In this section:

(a) the housing commissioner; or

(b) anyone else exercising a function under this Act.

(2) An official is not personally liable for anything done or omitted to be done honestly and without recklessness -

(a) in the exercise of a function under this Act; or

(b) (in the reasonable belief that the conduct was in the exercise of a function under this Act.

(3) Any liability that would, apart from this section, attach to an official attaches instead to the Territory.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any approved housing assistance program or regulation (see Legislation Act, s 104).

124. The Housing Assistance Act 2007 repealed the Housing Assistance Act 1987. Section 11 of the Housing Assistance Act 1987 provided:

Protection and liability of commissioner
- (1) A person who holds, or has held, the office of commissioner is not liable, personally, to an action or other proceeding for or in relation to an act done or omitted to be done in good faith in exercise or purported exercise of any function given to the person as the holder of that office.
- (2) If, by an act or omission of the commissioner or another person acting or purporting to act in good faith for the commissioner, a person sustains a loss or injury that would have entitled that person to a remedy in relation to the loss or injury if the act or omission were an act or omission of an individual -
  - (a) the person sustaining the loss or injury is entitled to the same remedy against the commissioner in the corporate capacity of the commissioner as the person would have been entitled to against an individual; and
  - (b) the liability of the commissioner shall be discharged by the Territory.

125. The terms of this section made it clear that it drew a distinction between personal liability of a person who had held the office of Commissioner and the liability of the Commissioner in its corporate capacity. The provision protected persons holding the office of Commissioner from personal liability but imposed that liability on the body corporate. The Territory was obliged to discharge the liability on the body corporate.

126. The explanatory statement for the Housing Assistance Ordinance 1987 provided:

The person suing is entitled to the same remedy against the Commissioner in his corporate capacity as the person suing would be entitled to against a natural person. The liability of the commissioner will be discharged by the Commonwealth.

127. Upon self-government the obligation on the Commonwealth was amended to be an obligation on the Territory.

128. When the bill for the 2007 Act was before the Legislative Assembly the explanatory statement provided:

This clause protects the Commissioner for Social Housing and anyone else exercising a function under the Act from liability resulting from anything done or omitted in the exercise of a function under that Act or in the exercise of a function under the Act, as long as it was done honestly and without recklessness. Any such liability attaches to the territory instead. This is similar to section 11 of the old Act.

129. The drafting of s 37 of the Act makes an attempt to pick up and modernise the drafting of the old s 11. However it does not do so with sufficient rigour. The old Act drew a distinction between:

(a) the personal liability of an individual who held the office of commissioner;

(b) the corporate liability of the commissioner being a corporation sole established under s 7 of the Act; and

130. Section 11(1) of the old Act excluded any personal liability. Section 11(2) picked up any liability that was excluded by s 11(1) and imposed it on the body corporate. It then proceeded to place an obligation on the Territory to discharge the obligation on the body corporate. Section 37(2) of the new Act excludes personal liability of an official. The reference to "personally" indicates that the subsection is performing the role equivalent to (a) above. However s 37(3) is in general terms and, instead of imposing the liability on the body corporate established by s 9(2) of the Act, imposes the liability on the Territory. This leaves open the argument that the section has the effect of removing all liability from the housing commissioner and imposing it upon the Territory. The effect of that would be that the plaintiffs had sued the wrong defendant and were out of time to sue the Territory.

131. Although the drafting of s 37 is less than ideal I do not think it has the effect for which the defendant contends. First, in terms of the text of the Act there is nothing that expressly precludes the corporation established by s 9(2) from being liable for actions that it takes. Second, subsection (3) only attaches to the Territory liability that would, apart from s 37, have attached to an official. Section 37 only precludes personal liability of an official and does not affect any liability other than personal liability. As a consequence, subsection (3) only imposes upon the Territory a personal liability which would have attached to an official. It leaves unaffected any liability that attaches to the corporation established under s 9(2). Third, this result is consistent with the extrinsic material, namely, the statement in the explanatory statement that the new provision "is similar to section 11 of the old Act". There is nothing in the extrinsic material to indicate that the intention of s 37 was to extinguish entirely any liability of the Commissioner and impose it on the Territory as opposed to merely addressing the personal liability of persons performing the functions of the Commissioner.

132. As a consequence, I do not accept that the plaintiffs had sued the wrong defendant and I do not accept that their claims fail in limine.

Section 112 of the Civil Law (Wrongs) Act - failure to regulate

133. The defendant has also pleaded in each case that the claim is based on allegations that the defendant failed to exercise or consider exercising functions under the Housing Act to prohibit or regulate an activity which it could not have been required to exercise in a proceeding begun by the plaintiff and, as a consequence, is not liable to the plaintiff by virtue of s 112 and chapter 8 of the Civil Law (Wrongs) Act 2002.

134. As at 2008, s 112 of the Civil Law (Wrongs) Act provided:

When public or other authority not liable for failure to exercise regulatory functions

(1) A public or other authority is not liable in a proceeding so far as the claim in the proceeding is based on the failure of the authority to exercise, or to consider exercising, a function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in a proceeding begun by the claimant.

(2) Without limiting what is a function to regulate an activity for this section, a function to issue a licence, permit or other authority in relation to an activity, or to register or otherwise authorise a person in relation to an activity, is a function to regulate the activity.

135. This provision was inserted into the Act along with the other sections in chapter 8 to limit the liability of public authorities. The explanatory statement for the bill explains that these provisions are "based on the NSW Civil Liability (Personal Responsibility) Act 2002" and the NSW equivalent provision, s 44, is framed in almost identical terms. The second reading speech for the NSW bill made it clear that the bill implements the recommendations made by the Ipp Report. The Ipp Report reviewed the liability of public authorities and recommended that legislatures adopt a "policy defence" for public authorities which became s 111. However, the Ipp Report did not recommend the wording used in s 112 of the Civil Law (Wrongs) Act or s 44 of the New South Wales Act. The provision is peculiar in a number of respects: see Aronson, M "Government Liability in Negligence" [2008] MelbULawRw 2; (2008) 32(1) Melbourne University Law Review 44 at 74-76.

136. The defendant submits that s 112 applies and that the defendant could not be liable because the plaintiffs could not have, relevantly, compelled the defendant to remove John from the premises, either in proceedings for prerogative relief or some other form of action. In the present case, the capacity that the defendant had in relation to John was one deriving from the tenancy agreement. It was not one derived from statute except in so far as the Housing Assistance Act 2007 gave the defendant its legal personality: s 9. The functions of the defendant included administering programs for delivering housing assistance: s 11. The defendant did not refer me to any authority in support of its contention that s 112 could be applicable in such circumstances. In my view it is not. Any failure in the present case is a failure to exercise a contractual capacity which exists because of the tenancy agreement between the defendant and John. That is not sufficient, in my view, to constitute "a function of the authority to prohibit or regulate an activity" for the purposes of s 112. In my view, a mere capacity which results from a contract with an entity created by statute is not within the scope of the section. Rather it is aimed at broader regulatory functions and is designed to limit the circumstances where a public authority given the function of regulating a particular subject matter may be sued to a limited class of persons in relation to a limited type of statutory functions. An example of a situation where this might have applied is a case such as Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540. Therefore, I do not accept that s 112 precludes the plaintiffs from succeeding in the present case.

137. The defendant has pleaded in each case that, in so far as the plaintiff alleges the cause of action in contract, that cause of action constitutes a "tenancy dispute" as defined in s 72 of the Residential Tenancies Act 1997 and is not within the jurisdiction of the Supreme Court. At the relevant time s 72 of the Act was numbered s 71H. It fell within Part 6 of the Act which provided a process for the resolution of "tenancy disputes". Section 115 of the Act provided:

(1) The tribunal has exclusive jurisdiction to hear and decide any matter that may be the subject of an application to the tribunal under -

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

(2) However, the tribunal does not have jurisdiction to make an order for -

(a) the payment of an amount greater than $25 000; or

(b) the Self-Government Act, section 48A (Jurisdiction and powers of the Supreme Court).

Note The Self-Government Act, s 48A provides as follows:

(1) The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.

Harris v Commissioner for Social Housing; Towney-Kilby v Comissioner for Social Housing; Sullivan v Commissioner for Social Housing [2013] ACTSC 186

At a glance

Court

Decision date

Before

Source

Judgment (360 paragraphs)

Legislation Cited (32)

Cases Cited (30)

Harris v Commissioner for Social Housing; Towney-Kilby v Comissioner for Social Housing; Sullivan v Commissioner for Social Housing [2013] ACTSC 186 (9 September 2013)