SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Clarkson v St Vincent De Paul Samaritan Services

Citation: [2016] ACTSC 235

Hearing Date: 3 August 2016

Decision Date: 3 August 2016

Before: Mossop AsJ

Decision: The application is dismissed.

Catchwords: APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal from decision of ACT Administrative Appeal Tribunal – Where original tribunal decision involved a denial of procedural fairness – Failure to give reasons – desirability of informing parties of entitlement to obtain reasons – Existence of internal appeal within ACAT provided opportunity to remedy any denial of procedural fairness – Lack of evidence before the Court as to what happened at the hearing of the internal appeal – Onus on appellant to demonstrate case for appeal – No question of fact or law identified – Application dismissed

Legislation Cited: ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 7, 23, 60, 62, 82, 86Residential Tenancies Act 1997 (ACT), s 125

Cases Cited: Eastman v Commissioner for Social Housing (2011) 252 FLR 278O’Donnell v Environment Protection Authority (2012) 268 FLR 48

Parties: Simon Jon Clarkson (Appellant)

Samaritan Services St Vincent De Paul (Respondent)

Representation: CounselSelf-represented (Appellant)

Mr J Harris (Respondent)

SolicitorsSelf-represented (Appellant)

O’Connor Harris (Respondent)

File Number: SCA 102 of 2015

Decision under appeal:

Tribunal: Australian Capital Territory Administrative Appeals Tribunal

Before: Appeal President Stefaniak

Date of Decision: 2 October 2015

Case Title: Clarkson v St Vincent De Paul Society

Samaritan Services

Court File Number: AA 25 of 2015

MOSSOP AsJ:

The application

1. This is an application for leave to appeal from a decision of the appeal tribunal of the ACT Civil and Administrative Tribunal on 2 October 2015. That in turn was an appeal from a decision of the tribunal made on 3 June 2015.

The requirement for leave

2. Section 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) provides:

86 Appeals to Supreme Court

(1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from—

(a) a decision of the appeal tribunal; or

...

(3) However, the appeal may be brought only with the Supreme Court’s leave.

3. Two points should be noted. First, leave is required before an appeal may be brought. Second, any such appeal is an appeal from the appeal tribunal rather than the tribunal at first instance.

Procedural history

4. On 3 June 2015 there was a hearing before a senior member of the tribunal (the senior member). The transcript of that hearing runs over 61 pages. The order that appears to have been announced by the senior member was that “the occupancy agreement is terminated immediately.” The tribunal also noted the undertaking by the respondent to house the applicant at Samaritan House subject to his conduct.

5. On 2 October 2015 the appeal President ordered: “The appeal is dismissed.”

Draft notice of appeal

6. A draft notice of appeal filed 14 January 2016 identifies the grounds of appeal as being:

I was a victim of crime not the perpetrator.

7. The orders sought are:

[St Vincent Paul] should find me a safe house to stay and not evict me.

8. On the hearing of the application for leave to appeal Mr Clarkson explained that notwithstanding the termination of his occupancy agreement in May 2015 he presently has accommodation. He explained that he wished to sue the respondent because of damage to or loss of some of his possessions following his eviction.

Evidence in support of application for leave

9. The affidavit filed by Mr Clarkson in support of his application for leave is as follows:

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1) I believe that I was denied natural justice as I was originally told that I being locked out/evicted because I was accused of dealing drugs.

2) But when there was no evidence of this brought new accusations, where I was the victim of crime

3) by [St Vincent De Paul Samaritan services] clients, Keith + Adam + Whitey, who were calling me a paedophile, selling drugs to children

4) and they they argument as cover to try and keep robbing me after I sold my campervan

5) I believe my actions don’t justify eviction, as I was not the instigator.

6) I do not think I seriously breached [St Vincent De Paul Samaritan services] rules.

7) To summarise, I believe I was the victim and [St Vincent De Paul] bent over backwards to help the perpetrators and accepting their accusations as bona fides evidence.

8) In short they evicted the wrong person/s.

10. In support of his application for leave to appeal, Mr Clarkson tended a letter from his treating doctor certifying that he attended on 6 September 2013. An x-ray of his left shoulder on that day showed a fracture of the humerus bone.

11. He also attended on 23 September 2013 after allegedly being assaulted with a cricket bat. An x-ray taken on 21 September 2013 showed a fracture of the fifth metacarpal bone in his right hand.

12. The respondent relied upon an affidavit of its solicitor which annexed documents describing some of the procedural history of the application.

Proceedings before ACAT

The first application to the tribunal

13. The first application made to the tribunal was dated 7 April 2015 and was filed by a solicitor on Mr Clarkson’s behalf.

14. The issues in dispute were identified as:

Mr Clarkson asserts that the agreement he has with St Vincent to Paul should be properly characterised as a tenancy agreement, as his agreement meets the requirements of section 6A of the Residential Tenancy Act 1997 and the exceptions set out in sections 6D to 6F do not apply.

15. The nature of relief sought included urgent interlocutory relief restraining St Vincent Paul from taking action to evict him and ultimately an order determining that he had a tenancy agreement with St Vincent Paul.

16. Attached to the application was a document headed “Samaritan Services – Occupancy Agreement”.

17. The agreement states:

This agreement does not and is not intended to create a residential tenancy agreement or any rights which attach to such a tenancy. The parties agree that this is an occupancy agreement and is not a residential tenancy agreement.

18. Included in the terms of the document are the following:

in accordance with the terms of this Occupancy Agreement, the attached Service Rules and your Support Plan.

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The occupant or boarder or lodger must not use the premises for any illegal purpose; nor cause or permit a nuisance or interfere with the occupants or community neighbours and not to assign any benefit of this agreement to a third party.

The occupant or boarder or lodger acknowledges that he/she can be evicted with an on the spot verbal or written notice if there is a serious breach of service rules.

The occupant or boarder or lodger acknowledges that he/she can be immediately evicted if there is serious risk to persons or property. This includes verbal threats or any abusive or violent behaviour to anyone on the premises or the surrounds.

…

Depending on the nature of a breach of service rules an occupant/border/lodger may be issued with a warning, notice to remedy and/or a reasonable notice to vacate depending on the circumstances and this will be at the discretion of the service provider and/or the property management. Police may also be called in to be present at any time at the premises.

19. The occupancy is identified as a weekly occupancy. Occupancy fees are paid fortnightly in advance.

20. Also forming part of the document are the “Samaritan services rules”. Those rules include the following:

...

1. The key to this comfort it having respect for self and for others:

…

Violence, aggression or intimidation will not be tolerated.

Samaritan Service values its position in the Queanbeyan community. Any actions taken by a resident that jeopardise our standing in the community would be treated seriously.

2. Samaritan Service has a harm minimization approach to drugs and alcohol:

You are not permitted to bring non-prescribed drugs or weapons into the unit complex and your agreement to stay is an acknowledgement/agreement to random unit searches by staff.

Anyone returning to the units intoxicated or obviously affected by alcohol, illicit substances or having misused prescription drugs may be asked to leave.

Note: Intoxication is not the issue; Samaritan Services promotes a harm minimisation environment which residents are required to respect.

Smoking is not permitted in the units.

…

21. The page containing those rules was signed by Mr Clarkson and dated 17 September 2012.

22. Annexure B to the application was a document headed “Termination Notice (Notice to Vacate) Issued by Grantor (Landlord)”. The grounds identified in that document were:

Breach of the St Vincent de Paul Society rules

The selling and the misuse of illicit substances

Jeopardising the standing of St Vincent de Paul Society

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23. The grounds on which the notice was issued in relation to the occupancy agreement and Samaritan Services’ rules are as follows:

The Occupant or boarder or lodger must not use the premises for any illegal purpose; nor cause or permit a nuisance or interfere with the occupants or community neighbours and not to assign any benefit of this agreement to a third party.

The Occupant or boarder or lodger acknowledges that he/she can be evicted with an on the spot verbal or written notice if there is a serious breach of service rules.

The Occupant or boarder or lodger acknowledges that he/she can be immediately evicted if there is serious risk to persons or property. This includes verbal threats or any abusive or violent behaviour to anyone on the premises or the surrounds

Violence, aggression or intimidation will not be tolerated.

Samaritan Service values its position in the community. Any actions taken by a resident that jeopardise our standing in the community would be treated seriously.

You are not permitted to bring non-prescribed drugs or weapons into the unit complex and your agreement to stay is an acknowledgement/agreement to random unit searches by staff.

Anyone returning to the units intoxicated or obviously affected by alcohol, illicit substances or having misused prescription drugs may be asked to leave.

24. The document refers to two notices to remedy dated 21 May 2013 and 17 September 2014. Those notices were not in evidence.

25. The notice demanded vacant possession by 1 April 2015.

26. The terms of the application to the tribunal indicated that an agreement had been reached not to evict Mr Clarkson until prior to 3.00 pm on 7 April 2016.

27. On 21 May 2015, senior member Lennard determined that the agreement between the parties was an occupancy agreement and dismissed the application made by Mr Clarkson.

Application made on 21 May 2015

28. On 21 May 2015, Mr Clarkson then filed another application for the resolution of a tenancy dispute in which described the dispute as being “no right to terminate-didn’t break the service rules”. It is this application that has ultimately led to the proceedings in this Court.

29. The issues in dispute are identified in the application to the tribunal as: “lockout plus termination of agreement despite being disputed”. The nature of the relief sought is “that the locks not be changed and my agreement continued”. The brief history of the dispute provided was: “they claimed that I was dealing drugs something I have always disputed and the charges from the police are being dropped. Especially the false arrest they claim led me to being evicted.” An application for interim orders filed on the same day sought that Samaritan Services be prevented from locking him out prior to his application being heard.

30. It appears that there was a hearing that occurred prior to 3 June 2015, although the evidence does not disclose the day on which it occurred. In particular the evidence does not disclose whether Mr Clarkson gave any evidence or made any submissions on that occasion.

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The proceedings on 3 June 2015

31. The proceedings were heard before the senior member between 3:52 pm and 5:41 pm on 3 June 2015. The proceedings commenced with the senior member making an enquiry about whether or not Mr Clarkson had managed to recover his pet bird. It appeared that the bird and its cage went missing at the time when Mr Clarkson was locked out of his accommodation. There was then a discussion of the filing of statutory declarations by the respondent.

32. There was some reference to material having been considered at an earlier hearing. In particular the solicitor for the respondent referred to the occupancy agreement that had been referred to previously. He indicated an intention to call evidence going to the breaches of the occupancy agreement alleged by the respondent. There was discussion of the service prior to the hearing of declarations of the witnesses to be called by the respondent.

33. The first of witness was Constable Alan Dwong. He gave evidence that he had had no contact whatsoever with Mr Clarkson. His evidence was that on 22 May 2015 he had been called out to attend a residence at Oaks Estate in response to a complaint that the property was being used as a cannabis and “grow house”. He and a number of other officers attended and were directed to a cupboard in which there were four black pots with soil and what look like traces of dead vegetable matter. He was asked what in his opinion the dead vegetable matter may have consisted of any said “it could have been anything”.

34. He saw a bong in the house which was dirty and stained. He picked it up and smelt it, but could not smell anything. He expressed the opinion that what he observed in the cupboard would be consistent with a grow house that was formerly in use but no longer functioning or the start of a grow house that never came to fruition.

35. In consultation with his team leader he decided there was nothing illegal inside the premises and departed the location.

36. He was shown some photographs of Mr Clarkson’s apartment at 10/12 George Street, the apartment the subject of his earlier evidence.

37. In cross-examination he said that no charges whatsoever were laid as a result of the visit. He was not aware of whether any charges were pending against Mr Clarkson.

38. I observe that the evidence was consistent with there having been a marijuana cultivation operation either in place or in the course of being established at Mr Clarkson’s-former-residence.

39. There was then some discussion between the senior member, the solicitor appearing for the respondent and Mr Clarkson.

40. Shannon Pickles, the director of special works at St Vincent de Paul Canberra/Goulburn, was then called to give evidence. He was shown a statutory declaration that he had made and asked additional questions. He said he was at Samaritan House doing a cleanup. Mr Clarkson explained that “he wasn’t actually a drug dealer because he did not meet the legal definition of being a drug dealer. He would never sell more than an ounce you know”. After an interruption Mr Pickles continued to describe the conversation in which Mr Clarkson said “oftentimes when he sold or whatever it might be he would give things away for free that it would be to assist people that had a mental illness”. He also said that Mr Clarkson said “he had close

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links to bikie gangs in the Fourth Reich and they would often give him the drugs at a subsidised or free rate and that would somehow make up for or give him repayment for the drugs that would then be given away for free”. Mr Pickles said “he had quite scattered ideation at that time that the conversation tended to jump around quite a bit”. Mr Clarkson then interrupted.

41. He then gave evidence about what occurred after the tribunal hearing on 5 May 2015. His evidence was that Mr Clarkson said “he would give away dope for free and he specifically mentioned person named Red ‘that I’ve given away Red some free dope every now and then’ but we just need to understand he is not a drug dealer, therefore he doesn’t understand why we are evicting him.”

42. Mr Pickles then gave evidence about his role and about incidents of violence which came to his attention involving Mr Clarkson. One was an incident between Mr Clarkson and someone else arising out of their dogs having an altercation and threats were made from both sides. At this point Mr Clarkson interrupted the proceedings again. It was clear that Mr Pickles was giving evidence on a hearsay basis by reference to what he had read in written incident reports. His recollection was that Mr Clarkson had threatened to kill the other resident’s dog.

43. He gave evidence that Mr Clarkson had first come to St Vincent Paul as a result of a request made to him by ACT Housing which was going through a complicated and complex eviction process involving Mr Clarkson. ACT Housing sought the support of St Vincent de Paul to “provide intensive supports to try and re-engage him with the community, keep him safe and safely housed”.

44. In cross-examination of Mr Pickles, Mr Clarkson put to him that he was aware from day one that Mr Clarkson was smoking dope. Mr Pickles indicated that he never had an issue with Mr Clarkson personally smoking dope, but the point of contention was him selling marijuana and Mr Clarkson had previously received a formal warning to stop doing that. In the course of his questioning Mr Clarkson said “I’m a stoner I admit to smoking dope big bloody deal. You drink alcohol. You give the alcohol to your mates. You’re not allowed to sell alcohol to your mates but you can give them a bottle.”

45. In relation to complaints of violence Mr Clarkson said:

why haven’t I been told of the complaints of violence? For example the one with the dog? He complained that my dog went and sniff his dog. He assaulted me with a cricket bat and broke my arm. It was only just repaired last September. I’ve still got the scars from where I had surgery.

46. In answer to another question from Mr Clarkson, Mr Pickles said:

We’re not evicting you because you’ve done something that’s illegal that’s not our concern. My concern is that you’ve repeatedly done something that’s disrupting the community that we’ve warned you not to do on multiple occasions, and that because of this you are deteriorating very badly. You’re not working with us and causing great concern and if you’re not going to work with us there’s no point for you to be in our service.

47. In answer to a question of the senior member, Mr Pickles said that he did not believe that Mr Clarkson had been charged with offences relating to violence.

48. In re-examination Mr Pickles explained that there were around 80 flats out at Oaks Estate that the respondent used to provide accommodation support to a like number of people who have chronic mental illness. He said that “one of the main ways that we do

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that is by ensuring that the community as a whole is managed so that everyone is supported, everyone feels involved, everyone feels included.”

49. There was further cross-examination by Mr Clarkson. Mr Pickles was asked about his understanding of the reasons for Mr Clarkson’s previous eviction from his ACT Housing accommodation. Mr Pickles gave evidence that he understood that Mr Clarkson was suffering from some victimisation in the community. He also said that he was not being evicted based on anything anyone else in the community was saying. He was being evicted based on evidence received by Mr Pickles’ staff.

50. The next witness was Timothy Coxhead, a community development project officer with St Vincent de Paul Society. He had made a statutory declaration and gave oral evidence. Mr Coxhead was asked to recount a conversation in which Mr Clarkson admitted supplying cannabis in the Oaks Estate community. He was stopped by the senior member who indicated that that question was not necessary because Mr Clarkson did not deny that. Mr Clarkson added “it’s actually my friends and [...]they’re already users. I’m not getting people addicted to a drug. These are people who use dope on a regular basis and just need a cone”.

51. In the light of that admission the solicitor for the respondent moved on.

52. Mr Coxhead gave evidence of an incident on 8 December 2014 when there was a dispute between Mr Clarkson and another resident, in relation to allegations that the other resident had damaged Mr Clarkson’s car, which threatened to become violent. Mr Coxhead intervened to calm the situation because he feared there would be “a punch-up”.

53. He also described another reported incident involving Mr Clarkson whipping another resident with a dog chain and that other resident responding with a cricket bat. That incident was approximately two years earlier. He indicated that his concerns were with violence at his unit and damage to his unit. He gave evidence that on another occasion there was a fight and someone’s head went through a glass coffee table and some broken doors. That incident occurred in about-September or October 2014.

54. He also gave evidence that Mr Clarkson had made accusations of paedophilia against some other residents and that influenced the attitude of other members of the community toward him. He said it was not at all uncommon for Mr Clarkson to accuse people who had caused him offence of paedophilia, including St Vincent de Paul staff.

55. In cross-examination he was asked a series of questions about his knowledge of other inappropriate activities at Oaks Estate. It was suggested that the incident in relation to the damage to the car did not involve any actual violence. Mr Coxhead said neither party was backing down until the time he intervened.

56. He was asked about his evidence that people came in and out of Mr Clarkson’s stairwell at all hours of the day or night. Mr Coxhead said that he had observed that when he was in the community and had also received constant feedback from the people that lived adjoining that stairwell. Particular informants were suggested to him and Mr Coxhead declined to identify them.

57. In the course of his questions Mr Clarkson said “I’ve been selling about a packet of cigarettes a day… 25 to 30 people getting a single cigarette a day”. The senior member confirmed that Mr Clarkson was telling him that 20 to 30 people a day were

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coming to his unit to buy cigarettes and things. Mr Clarkson confirmed that. Mr Clarkson said he was more than happy to stop it.

58. In re-examination Mr Coxhead said in relation to the car damage dispute there were verbal threats made by Mr Clarkson and the other resident to “punch each other up”.

59. After the witness withdrew, the senior member said:

look, I am satisfied that from his own admissions that Mr Clarkson has been supplying, in the sense of giving to people probably occasionally selling, both marijuana and cigarettes. He is not denying it.

60. The senior member indicated that he was “far more interested in the violence” and the solicitor for the respondent indicated that the next witness was directed to that issue.

61. The next witness was William Usher who was a case manager with the respondent. He was responsible for case managing 13 clients to help them with living skills, transport and general crises. Mr Clarkson was one of those clients.

62. He gave evidence that he was involved in an altercation that Mr Clarkson had had with another person entering his unit and assaulting him. He had also had dealings with Mr Clarkson in “the community room” where Mr Clarkson had been quite upset and threatening towards staff and himself. He gave evidence that Mr Clarkson “had really scared a number of volunteers and clients within our community room as well as another staff member”. Mr Clarkson at this point objected on the basis that the evidence was hearsay and opinion evidence. It appears that the senior member disallowed this objection. Mr Usher said that the nature of the threat was such that it caused another volunteer in a different room to have rung the police. He said that this type of threat had occurred on two occasions, once on the day that he had described and another time when Mr Clarkson was agitated.

63. In cross-examination Mr Usher indicated that Mr Clarkson had been agitated because of the potential eviction process. Mr Clarkson had alleged that he was being victimised. He had entered Mr Usher’s office on three occasions and when he became verbally threatening, Mr Usher asked him to leave. He described that Mr Clarkson had been yelling directly in his face.

64. Mr Usher also gave evidence of being involved after an incident in which Mr Clarkson’s ankle was cut rather severely. Mr Usher had called the Australian Federal Police (AFP) because Mr Clarkson had informed him that another person had smashed down his door and assaulted him. The AFP attended, but Mr Clarkson declined to make a formal complaint in relation to the alleged assault.

65. He gave evidence that he had been working at Oaks Estate for four years and Mr Clarkson had been there for two and a half years. He said that there had been other incidents consistent with the nature of supportive accommodation for people with mental health issues, but only two incidents involving an actual aggression by Mr Clarkson.

66. In the course of re-examination the senior member said:

… I don’t think it is an issue that your supplying the drugs free or otherwise and selling it. You’ve told me that 1000 times. I’ve got that. I understand you’ll be saying you had money in your unit from the sale of your [kombi] and I understand you’ll be saying that this chap Keith smashed your door in to try and get it, either your drugs or your money. That’s what you’re telling me.”

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67. Mr Clarkson responded “yes”.

68. The statutory declarations of Mr Usher and of Mr Spence were tendered and became Exhibits 3 and 4. There is no evidence before me as to what was Exhibit 1 or 2. These may have been tendered on an earlier occasion.

69. That was the conclusion of the evidence for the respondent.

70. Mr Clarkson was asked whether he was calling any witnesses. He was not asked whether he wished to give evidence himself. The following exchange took place between the senior member and Mr Clarkson:

Mr Clarkson: I’m a stoner. Everything I do relies on karma. I help other people. People help me out. It depends which dealer you go to, the quality and the price and the dealers only want to have certain customers and if you get a reputation for helping people out, people help you. It’s all about karma. And I’m not giving away huge amounts of drugs all the time.

[The senior member]: well I think the argument for St Vincent is that there is perhaps a bit of negative karma occurring at the centre in the form of conflict and be it verbal albeit with cricket bats---

Mr Clarkson: I’m not doing anything. I am being the victim. I’m being victimised.

71. There was then an exchange between the senior member and the solicitor for the respondent in which the senior member indicated that there were not many instances of violence and on at least one occasion it was Mr Clarkson’s contention that he was the victim. The senior member indicated that on the last occasion he had got the impression from the solicitor’s opening that the violence was of much greater severity. Although not made clear by the senior member, it appears from this point until the conclusion of the hearing the senior member was hearing submissions. However, the form of the hearing appeared to involve a mix of submissions, statements by the senior member, statements by Mr Clarkson and statements by Mr Pickles, with little obvious structure. On occasion Mr Clarkson interrupted other persons as they were speaking. During the course of that process the senior member made a number of statements, including:

(a) “[Y]ou keep trying to convince me that Mr Clarkson has a mental illness and that he gets carried away and that he perhaps even fantasised in some sense like that. I think that’s an argument you don’t have to make. I think Mr Clarkson makes it for you.”

(b) That the tribunal had to engage in a two-step process, first establishing breach and second determining whether the gravity of the breach was such that Mr Clarkson ought to be evicted.

(c) That an additional factor in relation to whether eviction was warranted was the obligations of the government as a funder of social housing projects as housing of last resort.

(d) That situation was different to a commercial lease between a commercial landlord and commercial tenant and that this was a case of solving social problems which is why the tribunal had been given wide discretion in tenancy and occupancy matters.

72. There was a discussion between the senior member and Mr Pickles who identified that there had been a standing offer for Mr Clarkson to move into Samaritan House.

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73. There was no specific opportunity given to Mr Clarkson to make submissions before the senior member said:

[N]o, the order I am going to make is that you housed at Samaritan House, subject to your compliance with the house rules at Samaritan House and that St Vincent to Paul do the best they can. They will consult with Ainslie Village to see whether there is vacancy there for you with a view to securing new long-term accommodation at the village or some other equivalent.

74. After that statement was made, the transcript continues with unstructured contributions from Mr Clarkson, the senior member, the solicitor for the respondent and Mr Pickles. Mr Clarkson continued to argue that he did not do anything wrong and should not be evicted from his apartment. He did so by way of interjection rather than being given any structured opportunity to put his submissions in any coherent way. At one point the following exchange occurs:

Mr Clarkson: why are you evicting me? I’ve done nothing wrong. I haven’t broken the law. What they have alleged they have not proven. They alleged that I was dealing drugs. They are trying to kick me out because I’m dealing drugs. I have not been dealing drugs.

[The senior member]: all right. Simon, you’re going to have to take the best of the options available to you. All right? Now you can rant and rave at me and carry on all you want. It isn’t going to do you any good.

75. Mr Clarkson’s behaviour seems to deteriorate as there is discussion of a proposal to move him into premises in the suburb of Reid.

76. The transcript records:

[The senior member]: anyway, look the order is Simon is, yes you can appeal to the Supreme Court. Absolutely. The order are making is that the Oaks agreement is terminated immediately. I’ve put a note---

Mr Clarkson: on what grounds?

[The senior member]: I’ve put a note-the tribunal notes the undertaking by the respondent to how the applicant at Samaritan house subject to his conduct.

77. Notwithstanding the announcement of this order, a discussion then continues between the senior member, Mr Clarkson, the solicitor for the respondent and Mr Pickles until the senior member announces that he is going to leave and the proceedings were adjourned at 5:41 pm. The senior member did not give any oral statement of reasons that disclosed his findings in relation to the terms of the agreement, findings of fact in relation to what occurred or findings as to whether what occurred amounted to a breach of the agreement.

78. It is not clear on the evidence before me that Mr Clarkson had given evidence on the first occasion the matter was before the tribunal. He was not clearly told that it was open to him to give evidence on 3 June 2015. Further, he was not given any discrete opportunity to make submissions in any coherent way. Rather the transcript records a piecemeal making of submissions by the solicitor for the respondent into which Mr Clarkson made interjections as well as statements made by the tribunal and discussions with Mr Pickles.

79. The order made by the tribunal which is dated 3 June 2015 provides:

1. The Occupancy Agreement is terminated immediately.

The Tribunal Notes: the Respondent undertaking to house the applicant in Samaritan House subject to his conduct.

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Proceedings before the appeal tribunal

80. Mr Clarkson appealed to the appeal tribunal. The grounds of appeal to the appeal tribunal were:

A. The original tribunal made an error of law in determining that I had supplied marijuana to other residents of Oaks Estate. Supply has a specific legal meaning and the meaning the original tribunal applied was incorrect.

B. The original tribunal fail to abide by the principles of natural justice, and took into account irrelevant considerations as they based their decision upon unproven statements regarding alleged assaults. I was not given notice of these allegations prior to the hearing and I was not given the chance to respond to these allegations.

C. The original tribunal made an error of fact in finding that I was accusing other residents of paedophilia, when in actuality it was other residents who were accusing me of this.

81. The appeal was listed for directions on 2 July 2015. On that date the tribunal made orders requiring the appellant to file and serve “any documentation, submissions, witness statement and any other evidence” by a particular date and gave the respondent and equivalent direction. The matter was listed for hearing on 10 August 2015.

82. On 11 August 2015 the orders of the tribunal were varied so that matter was listed for hearing on 2 September 2015. On 26 August 2015, the orders of the tribunal were varied so that the matter was listed for hearing on 2 October 2015. The delays to the hearing of the appeal were at the request of Mr Clarkson who was for some period an involuntary patient at the adult mental health unit at the Canberra Hospital.

83. There is no evidence as to what occurred before the appeal tribunal. I infer, having regard to the documents provided by the tribunal to this Court that the Samaritan Services’ occupancy agreement dated 17 September 2012 was tendered in the appeal tribunal. That document was similar document to the document that I have referred to above except included a document dated 7 September 2012 headed “Simon Clarkson-risk and a support plan”. That document was signed by him. It identified potential risks as including “very serious tenancy breaches including manufacturing biodiesel and amendments to electrical wiring” and “anti-social behaviour, verbally or in writing identifying neighbours as ‘molesting children’”, “noise when feeling unwell “turning stereo up and ranting and raving to let it out” within his home and “telling his dog” of his concerns”, “medication non-compliance for diagnosed schizophrenia and dissatisfaction with current medication”, “significant personal effects including 3-4 cars, a boat and the contents of a large two-bedroom property”, “pets including a dog and birds”.

Test for leave to appeal

84. In Eastman v Commissioner for Social Housing (2011) 252 FLR 278 (Eastman) the Court of Appeal articulated the approach to be taken to the requirement for leave to appeal in s 125 of the Residential Tenancies Act 1997 (ACT). The effect of that provision is now reflected in s 86 of the ACAT Act and hence the comments are applicable to the requirement for leave in the present case, except for the fact that now the scope of an appeal extends to a question of fact as well as a question of law.

85. In Eastman the Court said at [58]:

The plain intention of the legislature is to provide a filter for appeals from the tribunal. What is tolerably clear from the plain words of the section is that it is insufficient to point to a

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question of law. Something more is required. We agree with the primary judge that it is necessary for an applicant to demonstrate that he or she has at least an arguable case, that the tribunal has erred in its resolution of a question of law and that the result of the error would have been more favourable to him or her. Otherwise, it would be futile to grant leave. We are not convinced that whether the applicant would suffer a substantial injustice if the decision were allowed to stand is irrelevant but, absent an arguable case, it will certainly not justify a grant of leave.

86. In O’Donnell v Environment Protection Authority (2012) 268 FLR 48, Penfold J summarised the approach to be taken as follows:

78. Relying on the Court of Appeal’s comments, the matters I need to consider in deciding whether to give leave to appeal as a pre-requisite to the exercise of a statutorily-limited appeal right are:

(a) whether a question of fact or law has been identified;

(b) whether there is at least an arguable case that the Appeal President erred in his resolution of that question; and

(c) whether the correct resolution of that question would be more favourable to the appellant.

Conclusion on leave to appeal

87. Having read the transcript of the hearing before the tribunal on 3 June 2015 and without the benefit of the transcript of any earlier hearing between 21 May 2015 and 3 June 2015, I conclude that on the material before me, the proceeding before the senior member involved a denial of procedural fairness. It is certainly possible that additional evidence about what occurred at the earlier hearing might affect or qualify that conclusion.

88. The failure to accord procedural fairness arose from the manner in which the proceedings were conducted which did not give Mr Clarkson a fair opportunity to make his submissions. While it is clear that the tribunal has the capacity to determine its own procedures (ACAT Act s 23) and its proceedings may involve a degree of informality which depart from the approach adopted in a court, those powers must be exercised in a way that gives a party a fair opportunity to be heard (ACAT Act s 7). The manner in which the proceedings were conducted, which appeared to involve an unstructured series of exchanges, did not in my view give Mr Clarkson a fair opportunity to make submissions in any organised manner. Rather he was in the position where he was required to interject or put his arguments in relation to what was said by others which were necessarily not comprehensive. I accept that Mr Clarkson’s conduct during the course of the proceedings was at times not good, but that in my view does not relieve a tribunal of an obligation to make it clear to a party when they have the opportunity to make their submissions. A party may be unable or unwilling to make coherent or comprehensive submissions in response to that opportunity, but the party must be clearly given that opportunity.

89. The hearing on 3 June 2015 also did not provide Mr Clarkson with an opportunity to give evidence. I have proceeded on the basis that whatever occurred at the earlier hearing date did give him that opportunity. I have made that assumption because the hearing on 3 June 2015 turned immediately to the evidence to be called by the respondent and it is hard to imagine that on an application by a person in Mr Clarkson’s position that the tribunal would proceed immediately to the hearing of the respondent’s evidence if it had not already heard evidence in one form or another from the applicant.

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That having been said, what does appear in the transcript where the senior member provided an opportunity to Mr Clarkson to call other witnesses would be consistent with that being the only opportunity for the applicant to present evidence in support of his case.

90. As noted above, the tribunal did not give reasons for its decision. Section 60 of the ACAT Act identifies the obligations of the tribunal to give reasons. It provides:

60 Statement of reasons

(1) This section applies if—

(a) the tribunal makes an order on an application; and

(b) within 14 days after the day the order is made, a party asks for a statement of reasons for the making of the order.

(2) The tribunal must give the party a written statement of reasons or a transcript of an oral statement of reasons for the making of the order.

(3) The statement of reasons must set out—

(a) any principles of law relied on by the tribunal; and

(b) the way in which the tribunal applied the principles of law to the facts.

Note For what must be included in a statement of reasons, see the Legislation Act, s 179.

(4) This section does not apply to an order under section 53 (Interim orders) or an order of a procedural nature.

Examples—order of a procedural nature, adjournment, order for default judgement, order joining a party to a proceeding

Note 1 The rules may prescribe a longer period for asking for order details (see s 25 (1) (e) and (2)).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

91. The existence of s 60 gives rise to an implication that the obligation of the tribunal to give reasons is limited to the circumstances identified in the section. In other words, it is only where a request is made that there is an obligation on the tribunal to give reasons. Those reasons may be given either by a written statement prepared in response to the request or by providing a transcript of oral reasons previously given for the making of the order. A separate obligation in relation to the giving of reasons arises where the decision of the tribunal is reserved under s 62 of the ACAT Act.

92. The difficulty with such a process is that for an applicant such as Mr Clarkson, who was unrepresented, did not have ready access to legal advice and had in the past and would in the future suffer from severe effects of schizophrenia, he was practically unable to exercise his entitlement to request reasons. Because reasons were not given orally at the time of the making of the tribunal’s order and he was not told about his entitlement to request reasons, a person in Mr Clarkson’s position may well have considered that there was an element of arbitrariness about the decision which was announced as a fait accompli. It certainly would not have been clear to Mr Clarkson the basis on which the decision was made and whether or not any of the factual or legal contentions which he had sought to put had been taken into account and, if so, how. This case illustrates the practical importance of making it clear, if no reasons or abbreviated reasons for decision are given, that a party has an entitlement to make the request under s 60.

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93. Because of the absence of reasons it is not possible to determine what statutory provisions were applied by the tribunal, what findings of fact it made or the reasons for exercising its discretion (if any) to make the order that it did.

94. However, there is no appeal directly against the decision of the original tribunal. The only appeal is an appeal against the decision of the appeal tribunal. The appeal tribunal has the power under s 82 of the ACAT Act to deal with an appeal as a new application or as a review of all or part of the original decision on the application by the tribunal. It is not at all clear how the tribunal could deal with the matter other than as a new application in circumstances where reasons have not been given for the making of orders at the hearing, in response to a request under s 60 or in the case of a reserved decision pursuant to s 62.

95. The existence of the internal appeal within ACAT gave an opportunity to remedy the denial of procedural fairness that I have identified above. It is that decision which is the subject of the application for leave. Apart from the terms of the order that the tribunal made there is no other evidence before me as to what occurred before the appeal tribunal and no evidence of the reasons that the appeal tribunal ultimately gave for its decision.

96. It is notable that the grounds of appeal to ACAT were limited. Ground A made a legal contention which does not appear to be correct. Ground B insofar as it raised “unproven statements” would have had to have been assessed in the light of s 26 of the ACAT Act which permitted the tribunal to inform itself in any way it thought fit. Ground C raised a question of fact which could have been considered again by the tribunal on appeal and which may or may not have been significant for the question before it depending on what grounds for termination were found and the findings of fact in relation to them.

97. That leaves this Court in the unsatisfactory position of having to determine an application for leave to appeal against a decision without any statement of reasons or a transcript of what occurred at the hearing of the internal appeal.

98. The onus is ultimately on Mr Clarkson to demonstrate that this is an appropriate case in which to grant leave to appeal. Because of the absence of evidence as to the reasons for the decision under appeal, I cannot be satisfied that it is an appropriate case in which to give leave to appeal. It appears to me that having regard to the evidence that was given at the hearing before the senior member, it was open to him to find that under the terms of the occupancy agreement the respondent was entitled to terminate the agreement although the grounds would have depended upon the findings of fact made in relation to Mr Clarkson’s conduct.

99. Mr Clarkson had been given two weeks’ notice of the requirement to vacate the premises. It was open to the tribunal to find that was a reasonable period and consistent with the occupancy principles identified in the Residential Tenancies Act 1997.

100. The occupancy agreement is very poorly drafted in that does not fairly identify the circumstances in which it may be terminated. However, given that it is only a weekly agreement and that board is paid fortnightly in advance, unless there is an implication to be drawn from the terms of the agreement that it can only be terminated for cause then it would be open to the respondent to terminate it on two weeks’ notice without cause. If that interpretation was correct then it would be relevant to the question of

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leave, because even if Mr Clarkson’s occupancy was restored it would be open to be terminated in any event. However, Mr Harris who appeared on the application for leave appeared to concede that the circumstances in which termination was permitted were confined by the particular circumstances described in the agreement. For that reason for the purposes of this application I have proceeded on that basis.

101. A further relevant factor is that Mr Clarkson has not in fact been a resident at the premises since 21 May 2015, more than 14 months ago.

102. The only question of fact identified in the draft notice of appeal relates to whether or Mr Clarkson was the victim of crime not a perpetrator. It is not possible to say whether or not the claim of error in relation to that question of fact was arguable having regard to the absence of information about what occurred before, and the reasons for decision given by, the appeal tribunal. Further, it is not possible to conclude that the correct resolution of that question would be more favourable to the appellant in that it only addressed one of the possible grounds of termination of the occupancy agreement.

103. In summary, my conclusion in relation to leave is that on the evidence before me it has not been demonstrated that there is an arguable question of fact or law arising from the decision of the appeal tribunal. In the absence of evidence of the appeal tribunal’s reasons, it cannot be said that the decision reached is indicative of there having been an error of fact or law. Having regard to the evidence that was before the tribunal at first instance it cannot be said that the dismissal of Mr Clarkson’s application was in the circumstances necessarily indicative of an error. So far as any discretion is concerned, I place some significance on the fact that the ultimate outcome of any appeal, even if successful, would be unlikely to result in a restoration of the occupancy agreement that was in place up until May 2015, because Mr Clarkson has been accommodated elsewhere. I also take into account that there may be some utility in the proceedings in so far as they affect Mr Clarkson’s prospects of making a claim for damages to his property which occurred consequential upon the eviction. However, I note that success on the appeal is not necessarily essential to such a claim and that the nature or quantum of such a claim has not been clearly articulated before me.

104. For these reasons it is appropriate that I dismiss the application for leave to appeal.

Orders

105. The order of the Court is:

1. The application is dismissed.

I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.

Associate:

Date: 19 August 2016

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