The application to set aside the termination and possession order

1. On 28 March 2012 Mr Pesi filed an application seeking orders to set aside the unconditional termination and possession order of 20 February 2012, and stay execution of the warrant. The grounds relied on in that application are as follows:

"as far as I knew I was doing all that the order said and I'm even do (sic) some extra that Housing asked me to. I've been paying more rent that I was told to pay so I'm paying $150 p/fn plus $200 - $400 per month."

1. The application came before me on 9 May 2012 for hearing. Mr Pesi gave oral evidence in support of his application. He acknowledged he was present at the hearing on 6 December 2012, and he recalled being ordered to pay rent and arrears which he said he 'rounded' to $150 per fortnight. He put in place arrangements for those payments to occur. His evidence was that he knew he was supposed to come back to court in February 2012 but he did not recall a specific date being mentioned. He said that he did not receive the engrossed orders of 6 December 2012. In cross examination Mr Pesi said that he was waiting for notice of the date, which did not arrive, and he presumed that because he was doing the right thing he didn't need to go.
2. At the outset of submissions Ms Tarbet, who appeared for the Commissioner, raised a threshold question of whether the Tribunal had the power to set aside the decision of 20 February 2012. Ms Tarbet submitted that the Tribunal was functus officio and that the appropriate course for Mr Pesi to take, should he wish the order to be set aside, was to file an appeal.
3. Ms Yuille, a caseworker assisting Mr Pesi, pointed to paragraph 56(c)(i) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as a statutory source of power.
4. Given the importance of the jurisdictional question, I adjourned the matter for two weeks to allow the parties to file written submissions on this point.

The threshold question of the Tribunal's power to make the orders sought in the application

1. As summarised in the Commissioner's submissions, the doctrine of functus officio is 'once a power has been exercised to determine the rights of the parties, the power is spent and cannot be re-exercised unless there is an express power or implied statutory intent to that effect'.
2. Paragraph 56(c)(i) of the ACAT Act provides:

(i) the order was made after hearing an application in the absence of a party; or

1. On its face, the power provided by paragraph 56(c)(i) would seem to be available to the Tribunal in this matter.
2. The submissions filed on behalf of the Commissioner outlined in detail the reasons why the Tribunal might be considered functus officio in relation to the decision of 20 February 2012, but did not squarely address the question of whether paragraph 56(c)(i) should be interpreted as an express conferral of power as contemplated by the doctrine.
3. In determining whether paragraph 56(c)(i) is available to be exercised in the current matter, it is necessary to consider not only the bare words of the provision, but also the statutory scheme within which it is located.
4. The general structure of the ACAT Act is to establish a Tribunal, with standard powers and procedures, which may be vested with specific jurisdiction either by the ACAT Act itself or by way of an authorising law (in this case the RT Act). Section 56 is located in Part 6 and Division 6.1 of the ACAT Act, which are entitled, respectively, 'Powers and decisions of Tribunal' and 'Powers and decisions generally'. These parts of the ACAT Act set out general procedures and powers applicable to the Tribunal in performing its functions, whether in respect of an application filed under the ACAT Act or pursuant to an authorising law. The legislation provides that the general powers and procedures apply to the Tribunal when dealing with matters under authorising laws, unless there is provision to the contrary in the authorising law.
5. There is no express indication in either the ACAT Act or the RT Act that paragraph 56(c)(i) is not available to be utilised by the Tribunal in relation to order made under the latter legislation. The question that follows is whether such a limitation on paragraph 56(c)(i) should be implied into the legislation. I was not referred to any extrinsic material, such as the explanatory statements for either piece of legislation, which would suggest that this was the intended operation of the legislation. The arguments put on behalf of the Commissioner in relation to the desirability of finality are not so compelling as to lead to the conclusion that paragraph 56(c)(i) must be interpreted as not available, whether in RT Act matters generally, or in relation to an unconditional termination and possession order in particular.
6. I find that paragraph 56(c)(i) is available to be exercised in this jurisdiction.
7. The Commissioner submitted that, even if paragraph 56(c)(i) were available, it was only available for use between the time the order terminating a tenancy agreement was made, and the date on which the warrant for eviction issued. While the basis for this submission as a matter of policy was put as the need for finality, these arguments were not sufficiently strong to require that a limitation to the broad words of the section should be inferred. I was not referred to any intrinsic or extrinsic material which would suggest that the provision was intended to be so limited, in the residential tenancies jurisdiction generally or in relation to an unconditional termination and possession order in particular. Again, in the absence of any material evidencing an intention of the legislature to so limit the application of paragraph 56(c)(i), this interpretation should not be adopted.
8. Accordingly, I find that it is open to utilise paragraph 56(c)(i) in the current matter.

How is the discretionary power conferred by section 56(1)(c) of the ACT Civil and Administrative Tribunal Act to be exercised?

1. The legislation provides little guidance on how the power conferred by paragraph 56(c)(i) is to be exercised, other than the use of the word 'may' which indicates that the decision is a discretionary one.
2. Both parties submitted that the discretion should be exercised by reference to two factors: first, whether there was a reasonable explanation for Mr Pesi's absence from the resumed hearing on 20 February 2012; and secondly, would his appearance on 20 February 2012 have been capable of affecting the outcome on the day (Allesch v Maunz [2000] HCA 40).
3. It is important to note that the factors potentially relevant to the exercise of discretion under paragraph 56(c)(i) should not be considered as limited to the two factors identified by the parties in this matter. Paragraph 56(c)(i) provides a power that is available to the Tribunal across a multiplicity of jurisdictions, and factors such as the nature of the jurisdiction and decision; whether the requirements of natural justice have been met; the length of time which has passed; reliance upon the decision by the respondent and third parties; whether an order for costs could address the disadvantage suffered by the other party; and other matters may be relevant in appropriate cases.

Applying paragraph 56(c)(i) in the current matter

1. Mr Pesi was present at the hearing on 6 December 2011 when the adjourned date was set. He said that he knew there was to be a further hearing in February 2012, and that he was expecting a notice of that hearing to arrive. When no notice arrived, he took no action to confirm the correctness of his understanding but instead assumed that because he was doing the right thing he "did not need to go."
2. When documents are served by post there is a presumption that the documents are received, however that presumption may be rebutted by evidence of non-receipt. Mr Pesi gave oral evidence that he had not received the documents and his evidence was uncontradicted. This does not mean, however, that I am obliged to accept his evidence.
3. It was submitted on his behalf that Mr Pesi should be believed because he had nothing to lose by attending the Tribunal on 20 February 2012, and there was nothing in his behaviour to suggest he was 'recalcitrant' with respect to his obligations. It was put that Mr Pesi's behaviour since 6 December was " entirely consistent with a commitment to fulfilling his obligations, seizing opportunities to put his affairs in order, and saving his tenancy. It is inconsistent with this behaviour that he would choose to be absent from a hearing."
4. This is an overly favourable description of Mr Pesi's behaviour since 6 December 2011. Despite the seriousness of this matter, even after receiving the Notice of Eviction dated 22 February 2012, Mr Pesi took no action to contact the Tribunal. It was not until police attempted to execute the warrant of eviction in late March 2012 that any steps were taken. An intentional failure to attend the adjourned hearing would be consistent with the failure to act upon receipt of the Notice of Eviction.
5. In the end, it is unnecessary for me to determine whether Mr Pesi is to be believed when he says he did not remember the exact date of the adjourned hearing, or receive the orders of 6 December 2011. This is because even if I accept the truth of both of these assertions, I am not satisfied that his explanation for not attending the adjourned hearing is reasonable.
6. Mr Pesi was present at the Tribunal when the adjourned date was set, and was aware of the adjourned date being set for February 2012. When no notice of listing arrived, he could have contacted the Commissioner or the Tribunal to confirm the listing date, but instead he assumed that he did not need to go. Given the serious nature of the application, and the conduct of the proceedings to that time, such an assumption was not only optimistic but reckless.
7. In the circumstances of this case, given Mr Pesi's presence at the Tribunal when the date was set, his understanding that there was to be a further hearing in February, and the serious nature of the proceedings, I do not consider that a lack of written notice of the adjourned date coupled with lack of recollection of the specific date, is a reasonable explanation for not attending the resumed hearing.
8. As a consequence, I decline to exercise the discretion provided by paragraph 56(c)(i) of the ACAT Act.

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