Meyers v Commissioner for Social Housing

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Elkaim J,Loukas-Karlsson J,Charlesworth J
• Judgment Date: 07 August 2019
• Docket Number: File Number: ACTCA 49 of 2018
• Date: 07 August 2019

[2019] ACTCA 19

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Elkaim, Loukas-Karlsson and Charlesworth JJ

File Number: ACTCA 49 of 2018

Daniel Patrick Meyers

(Appellant)

and

The Commissioner for Social Housing

(First Respondent)

Australian Capital Territory

(Second Respondent)

Representation:

Counsel

J Maconachie QC with P Tierney (Appellant)

V Thomas with S Richards and N Oram (Respondents)

Cases Cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Coles Supermarket Australia Pty Ltd v Harris [2018] ACTCA 25; 278 IR 219

Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51

Coulton v Holcombe (1986) 162 CLR 1

Department of Housing v Consumer, Trader and Tenancy Tribunal and Anor [2003] NSWSC 150

Donoghue v Stevenson [1932] AC 562

Duncan v Ryan and The Australian Capital Territory [2002] ACTSC 47

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540

Harris v Commissioner for Social Housing; Towney-Kilby v Commissioner for Social Housing; Sullivan v Commissioner for Social Housing [2013] ACTSC 186; 8 ACTLR 98

Jones v Dunkel (1959) 101 CLR 298

Kuehne v Warren Shire Council [2011] NSWDC 30; 180 LGERA 383

Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280

Meyers v Commissioner for Social Housing [2018] ACTSC 193

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide & Anor (1975) 11 SASR 504

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997

Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180

Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330

Southern Union Insurance Co of Australia v Altinier [1969] 2 NSWR 333

Stovin v Wise [1996] AC 923

Sullivan v Moody [2001] HCA 59; 207 CLR 562

Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422

Warren Shire Council v Kuehne [2012] NSWCA 81; 188 LGERA 362

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) ss 40, 41, 42, 43, 108, 109, 110, 111, 112, 114, 168

Civil Liability Act 2002 (NSW) ss 43A, 44

Companion Animals Act 1998 (NSW) s 34

Court Procedures Act 2004 (ACT) s 21

Court Procedures Rules 2006 (ACT) r 2900

Dog Control Act 1975 (ACT)

Domestic Animals Act 2000 (ACT) ss 14, 22, 23, 25, 45, 49, 49A, 53, 56, 57, 59, 63, 64, 65, 70, 121, 123, 128, 129, 130, 131, 133

Housing Assistance Act 2007 (ACT) ss 10, 11, 12, 37

Legislation Act 2001 (ACT)

Public Sector Management Act 1994 (ACT)

Residential Tenancies Act 1997 (ACT) s 48

Supreme Court Act 1970 (NSW) s 65

Texts Cited:

PW Young QC. Declaratory Orders (Butterworths, Sydney, 1984) 2 ^nd Ed

APPEAL — GENERAL PRINCIPLES — In General and Right of Appeal — Appeal against decision of a single judge — Appellant mauled during dog attack at public housing complex — Duty of Care — occupier of land — statutory power to seize dogs — appeal dismissed

Decision:

• (1) The Notice of Contention is upheld.

• (2) The appeal is dismissed.

• (3) The appellant is to pay the respondents' costs of the appeal.

Elkaim J

1 I have read the judgment of Charlesworth J in draft. I agree with the ultimate result proposed by her Honour and with almost the whole of her Honour's reasons. I do not however agree with her Honour's conclusion on the Notice of Contention.

2 My point of difference is that I do not think the second stage of her Honour's inquiry as to the applicability of s 112 is a necessary step. In other words I am of the view that once Mr Meyers had established his standing, no more was necessary to overcome the protection provided to the second respondent by s 112.

3 Because the ultimate result remains the same, I will state my views on s 112 briefly.

4 Section 112 states:

112 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.

5 Charlesworth J refers to obiter support for the appellant's approach in Warren Shire Council v Kuehne [2012] NSWCA 81; 188 LGERA 362 ( Kuehne).

6 Section 44 in the Civil Liability Act 2002 (NSW) is analogous to s 112 in the ACT Act. Similarly s 34 in the Companion Animals Act 1998 (NSW) is analogous to s 22 in the Domestic Animals Act 2000 (ACT) ( Domestic Animals Act).

7 On appeal from a decision in favour of the plaintiff in the District Court of NSW ( Kuehne v Warren Shire Council [2011] NSWDC 30; 180 LGERA 383), Whealy JA, with whom McColl JA agreed, said this:

148. Similarly, I would not be prepared to find that the primary judge was in error in relation to the conclusion he reached concerning s 44 of the Civil Liability Act. The primary judge dealt with this issue at 63–66. Essentially, his Honour held that the respondents would have had standing so as to bring proceedings under s 65 Supreme Court Act to obtain an order forcing the Council to issue a declaration under s 34 Companion Animals Act. At Red 66, his Honour said:

“In my view Mr Kuehne, either living in Garden Avenue, or as the parent of children living there, and Dylan, as a resident of Garden Avenue, did have an interest substantially greater than the public at large. The family living in Garden Avenue would in my opinion have personally benefited from the making of an order under Section 34 to the extent that it would have potentially prevented a significant threat to their safety and, even at a lower scale, to their capacity to pursue their lives without harassment from the Wilson dogs.”

149. Section 44(1) of the Civil Liability Act 2002 (NSW) is in the following terms:

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

(1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.”

150. Mr Sheldon argued that the respondents had not satisfied s 44 because they could not demonstrate that any action they might have brought under s 65 Supreme Court Act would have been successful. In my opinion, s 44 is concerned with the issue of standing, rather than the issue as to whether a particular plaintiff would succeed on the merits in proceedings instituted alleging failure of an authority to exercise or to consider exercising a function to prohibit or regulate an activity.

151. In the present matter, Mr Kuehne and his family had complained to the Council about the children being chased by the Wilson dogs. If they were not satisfied with the Council's action and considered that proceedings should be taken in an endeavour to force the Council to at least consider taking action to regulate the dogs' activity, they would have been entitled to do so. The power of the Court in any such proceedings would have been sufficiently wide, even if it took the view that the Council should not be forced to act under s 34, that it might be required, nonetheless, to take action of a lesser kind, for example declaring the dogs a nuisance.

152. In any event, I consider that no error has been demonstrated in relation to the primary judge's finding on this point.

8 There is no direct equivalent to s 65 of the Supreme Court Act 1970 (NSW) in the ACT. I do not however think that jurisdiction is the issue. The issue is whether or not s 112 is concerned with more than just standing. Does it also require a conclusion that a court could not have compelled the second respondent to make a declaration under s 22(2)? If this declaration was not made then, in turn, the dogs could not have been seized under s 57(b) of the Domestic Animals Act.

9 Whealy JA at [150] in Kuehne thought s 44 was concerned with standing only and did not require a resolution of “the issue as to whether a particular plaintiff would succeed on the merits in proceedings….”.

10 Whealy JA did not deal with the matter in any more detail than set out above, no doubt because the appeal had been decided on a separate question. Nevertheless I am of the view that his Honour's approach was correct.

11 In Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 511, Aickin J said this:

In my view the authorities to which I have referred above establish that it is an essential requirement for locus standi that it must be related to the relief claimed. The ‘interest’ of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourably. What is required is that the plaintiff's interest should be one related to the...