SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / Clarkson v St Vincent De Paul Samaritan Services
Citation: / [2016] ACTSC235
Hearing Date: / 3 August 2016
DecisionDate: / 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, 86
Residential Tenancies Act 1997 (ACT), s 125
Cases Cited: / Eastman v Commissioner for Social Housing (2011) 252 FLR 278
O’Donnell v Environment Protection Authority(2012) 268 FLR 48
Parties: / Simon Jon Clarkson (Appellant)
Samaritan Services St Vincent De Paul (Respondent)
Representation: / Counsel
Self-represented (Appellant)
Mr J Harris (Respondent)
Solicitors
Self-represented (Appellant)
O’Connor Harris (Respondent)
File Number: / SCA102 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 insubsection (2), for an appeal may appeal to the Supreme Court on aquestion 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:

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 theyargument 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.

  • 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

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 3.00pm on 7 April 2016.

27.On 21 May 2015,senior member Lennarddetermined 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 Servicesbe 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.

The proceedings on 3 June 2015

31.The proceedings were heard before thesenior 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 residenceat 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 hedecided 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 therehaving 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 dePaul 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 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 orgive 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 Clarksonpersonally 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 scarsfrom where I had surgery.