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The application 1

3. The applicant made an application to the tribunal on 3 March 2026 (the application) seeking resolution of a dispute under the Residential Tenancies Act 1997 (RT Act).

4. The applicant is seeking a variety of orders with respect to various repair and maintenance works to the Forde property and compensation for breach of the PCC in the amount of $15,000.

Issue to be determined

5. The preliminary question that arises here is whether the Tribunal has jurisdiction to determine the application.

6. The respondent objected to the Tribunal’s jurisdiction to hear and determine the application given: (a) their contention that the PCC is not a ‘residential tenancy agreement’ that is governed by the RT Act; and

1 A reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the presently constituted Tribunal 2 (b) the nature of the respondent as a Commonwealth entity.

7. The applicant maintained the Tribunal does have jurisdiction based on three 3 grounds: I. the proper construction of the Court Procedures Act 2004 (ACT) (“CPA”) and its operation as a listed enactment under the Australian Capital Territory (Self-Government) Regulations 1988 (Cth) (“Regulations”); II. the application of Re Residential Tenancies Tribunal (NSW) v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410) (“Henderson”) and the High Court’s treatment of Commonwealth liability under residential tenancy legislation; and III. the proper construction of section 27 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (“Self-Government Act”). Interlocutory Hearing and representation

8. The matter was listed before me on 20 April 2026 for a directions hearing.

9. The applicant represented himself. The respondent was represented by Mr Issac Gill and Mr Damien Kelly of the Australian Government Solicitor.

10. The purpose of the directions hearing was for the Tribunal to determine the manner in which it would hear and determine the preliminary issue of jurisdiction.

11. However, at the commencement of the directions hearing, both parties informed the Tribunal they had previously filed and served written submissions and were ready to proceed with an interlocutory hearing on that date to determine the preliminary issue of jurisdiction. Both parties declined the Tribunal’s offer to relist the matter at a later date with further orders for submissions.

12. Consistent with the objects of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), I determined it was appropriate to immediately hear the preliminary issue of jurisdiction as an interlocutory hearing.

2 Respondent’s Amended outline of submissions dated 17 April 2026 3 Applicant’s supplementary submissions on jurisdiction dated 13 April 2026 at paragraph 2

13. The applicant relied on his application (with annexures) filed on 3 March 2026 and ‘supplementary submissions on jurisdiction’ filed on 13 April 2026.

14. The respondent relied on written submissions filed on 17 April 2026 (amending and replacing their earlier written submissions dated 16 April 2026).

15. Both parties made oral submissions at the interlocutory hearing.

16. The respondent’s representatives also provided the Tribunal with two folders containing joint authorities and legislation at the interlocutory hearing.

17. At the conclusion of the interlocutory hearing the Tribunal reserved its decision.

Application for interim or other orders

18. On 21 April 2026, after the interlocutory hearing had concluded and the Tribunal reserved its decision, the applicant emailed the tribunal seeking leave to file supplementary submissions directed to whether the agreement between the parties meets the definition of a residential tenancy agreement under section 6A of the RT Act.

19. The Tribunal refused that request on the basis the interlocutory hearing had concluded and the Tribunal had reserved its decision.

20. On 23 April 2026, the applicant filed an application for interim or other orders (interim application), again seeking leave to file the abovementioned brief supplementary submissions. The applicant submitted that the issue had not been raised prior to the interlocutory hearing and that he was unable to address it with adequate preparation before the interlocutory hearing.

21. It is established legal principle that once a hearing has concluded parties should not be permitted to provide additional documents, evidence or submissions about the case, in the absence of any orders.

22. In determining the interim application, I formed the view that both parties had sufficient time to properly consider and address the matters raised by the proposed supplementary submissions prior to the interlocutory hearing, noting: (a) whether the application was a ‘tenancy dispute’ related to a residential tenancy agreement was a fundamental issue of dispute between the parties; (b) the respondent first raised this issue in their letter to the applicant dated 4 1 April 2026 and again in written submissions dated 16 April 2026 and 17 April 2026; and (c) both parties declined the Tribunal’s offer to list the matter for a later hearing date, and the opportunity to provide further written submissions.

23. I also noted that at the interlocutory hearing, both parties contended that whether the agreement met the definition of a residential tenancy agreement was not relevant to the issue of jurisdiction.

24. However, notwithstanding the parties’ positions, during the course of preparing these reasons, the Tribunal identified that the question of whether the agreement falls within the statutory definition is relevant to the issues to be determined.

25. In those circumstances, and to ensure procedural fairness, on 5 May 2026, the Tribunal granted the interim application and made the following orders: (a) The applicant’s application for interim or other orders dated 23 April 2026 is granted. (b) The applicant’s supplementary submissions dated 23 April 2026 are taken to be filed on 23 April 2026. (c) The respondent must give the Tribunal and the applicant written submissions in reply by 20 May 2026. (d) The Tribunal’s decision continues to be reserved.

26. The Tribunal did not receive any submissions from the respondent as directed.

Material considered

27. In making its decision, the Tribunal took into account documents both parties filed prior to the interlocutory hearing, the two folders of authorities and

4 Attached to the applicant’s supplementary submissions on jurisdiction dated 13 April 2026 legislation handed up at the interlocutory hearing and all written and oral submissions made by or on behalf of the parties.

28. The Tribunal does not intend to individually identify the tendered documents but will refer to them as necessary in this decision.

Jurisdiction

29. The first threshold question for the Tribunal to determine is whether the RT Act applies to the application.

Does the RT Act apply? The parties’ positions

30. The application is brought under the RT Act.

31. Having regard to the issues outlined in the application and the relief the applicant 5 is seeking, it is clear they arise solely out of obligations provided for within the PCC and not the Sublease agreement.

32. However, the applicant would have the Tribunal believe that the PCC and the Sublease agreement are not separate legal agreements and should be treated as one single agreement. The applicant maintained that the ‘agreement’ (by which I understand he intended to refer to the Sublease primarily, but viewed jointly with the PCC) satisfies the statutory definition of a residential tenancy agreement 6 under the RT Act as follows: 7. The agreement between the parties satisfies all three requirements of section 6B. 8. First (s 6B(a)): the agreement complies with section 6A(1) to (3). It gives DHA, as tenant, a right to occupy the residential premises … for use as a home by defence personnel, in exchange for rent. The substantive character of the agreement is plainly residential. 9. Second (s 6B(b)): the agreement is in writing. It is a formal, signed, 25-page written instrument. 10. Third (s 6B(c)): the agreement expressly states that it is a residential tenancy agreement. The document is headed “SCHEDULE 1 – DETAILS OF RESIDENTIAL TENANCY AGREEMENT – ACT”. The 5 Applicant’s written submissions filed with the application dated 3 March 2026, at [23] and [40]- [46] 6 Applicant’s supplementary submissions on jurisdiction dated 23 April 2026, at part 3 footer of every page of the agreement reads “Residential Tenancy Agreement ACT”. The agreement leaves no room for doubt as to its character on its face. 11. All three requirements of section 6B are satisfied. The agreement is therefore a residential tenancy agreement for the purposes of the RTA, regardless of whether any exclusion under section 6A(4) might otherwise be engaged.

33. The applicant ultimately contends that the proceeding should be characterised as a residential ‘tenancy dispute’ because the substance of the dispute relates to 7 rights and obligations under the residential tenancy framework.

34. The respondent submitted that the two agreements are separate, with only the PCC being the subject of the dispute. They contended the PCC is not a residential tenancy agreement, asserting that its purpose was different to a residential tenancy agreement in that it “requires the Respondent to provide certain property care 8 services to the Applicant for a fee”. In short, the respondent argued the dispute is properly characterised as a contract application in the Tribunal’s civil jurisdiction as defined within sections 15 and 16 of the ACAT Act. The respondent then relied on its earlier stated position that the Tribunal does not have the power to bind the Crown in right of the Commonwealth, which I will address later in these reasons.

Consideration

35. Section 72 of the RT Act provides the meaning of a ‘tenancy dispute’ that falls within the scope of that Act, as follows: 72 Meaning of tenancy dispute (1) For this Act, a dispute is a tenancy dispute if it— (a) is between the parties (including between co-tenants) to a residential tenancy agreement; and (b) is about, arises from, or relates to, the agreement. (2) A tenancy dispute includes— (a) a dispute if an application relating to the dispute may be made under part 4 (Termination of residential tenancy agreements) or part 5 (Rental rate increases); and

7 Applicant’s supplementary submissions on jurisdiction dated 13 April 2026, at part 7 8 Respondent’s amended outline of submissions, paragraph 9 (b) a referral of an application and notice of dispute taken to be an application about a tenancy dispute under section 35 (3); and (c) an application for compensation under this Act.

36. The RT Act defines a ‘residential tenancy agreement’ as follows: 6A What is a residential tenancy agreement? (1) An agreement is a residential tenancy agreement if— (a) under the agreement— (i) a person gives someone else (the tenant) a right to occupy stated premises; and (ii) the premises are for the tenant to use as a home (whether or not together with other people); and (iii) the right is given for value; and (b) the agreement is not an occupancy agreement under section 71C. (2) The agreement may be— (a) express or implied; or (b) in writing, oral, or partly in writing and partly oral. (3) The right to occupy may be— (a) exclusive or not exclusive; and (b) given with a right to use facilities, furniture or goods. (4) This section is subject to the following sections: • section 6D (Certain kinds of agreements not residential tenancy agreements) • section 6E (Certain people given right of occupation not tenants). 6B Residential tenancy agreement if agreement written and says it is residential tenancy agreement Despite section 6A (4), an agreement is a residential tenancy agreement if it— (a) complies with section 6A (1) to (3); and (b) is in writing; and (c) expressly states that it is a residential tenancy agreement. Was the respondent a ‘tenant’ using the premises as a ‘home’?

37. There are two separate but related issues which have led me to determine that the arrangement between the parties is not governed by the RT Act: (a) the respondent cannot be a ‘tenant’ under the RT Act because it cannot occupy the Forde property itself ‘as a home’; and (b) this was a commercial arrangement under which the respondent sub-let the premises to eligible Defence personnel. 9

38. In the ACAT case of Chen v United Arab Emirates (Chen), then Senior Member Orlov stated (footnotes omitted): 13. Section 160(1) of the Legislation Act 2001 provides that a reference in an Act to a ‘person’ generally includes a reference to a corporation as well as an individual. The section is a non-determinative provision and may be displaced expressly or by a contrary intention. In this case, the intention that ‘person’ may include a corporation where the RT Act refers to a ‘tenant’ is displaced by a contrary intention. 14. A defining characteristic of a residential tenancy agreement is that the premises are for the tenant to use as a home – i.e. a place for the tenant to live – whether or not it is used as a home for “other people”. A corporation cannot occupy premises for use as a home. Neither can a foreign State. Only a natural person, or a group of natural persons, can do so. In my view, it is clear from the statutory text and context that only a natural person can be a ‘tenant’ for the purposes of the RT Act.

39. This issue was also contemplated in the ACAT case of Diplome Australia Pty Ltd 10 v Singh (Diplome), where Member Hatami stated (emphasis added): The language of the section simply does not envisage the use of premises subject to a residential tenancy agreement for any purpose other than for use by a person as a home.

40. I agree with and adopt the reasoning in Chen and Diplome that a corporation cannot occupy or use premises as a home for itself. Additionally, having reviewed the material and submissions of both parties, I am satisfied the respondent was sub-letting the premises to eligible Defence personnel and therefore, was not using the Forde property as a ‘home’, official place of residence or for its own domestic purposes.

41. I am therefore satisfied the respondent does not meet the definition of ‘tenant’ under the RT Act. For completeness, I am satisfied for similar reasons that the

9 [2023] ACAT 42 at [13]-[14] 10 [2021] ACAT 75 at [17] respondent also does not meet the definition of occupant within the meaning of section 71B of the Act.

42. Incidentally, while the respondent has referred to itself as the ‘tenant’ in the agreements, this does not make it a tenant under the RT Act. That is to say, the respondent may still be a tenant under another legal framework, e.g. a commercial tenant under contract or at common law. However, I make no further comments or findings in this regard as it is not an issue before me.

43. Consequently, I am satisfied that neither the Sublease nor the PCC agreement, either individually or taken together, are residential tenancy agreements within the meaning of section 6A of the Act. The agreements therefore cannot satisfy the requirements of section 6B of the Act.

44. For completeness, I am also satisfied for similar reasons that neither the Sublease nor the PCC agreement are occupancy tenancy agreements within the meaning of section 71C of the Act given it uses similar language as contemplated above.

45. The main consequence of these findings is that the RT Act does not apply to the application.

46. Given the applicant has not met the initial threshold question of whether the RT Act applies, it is not necessary for me to consider the issues raised by the applicant with respect to whether the Sublease and the PCC should be considered one or separate agreements, nor the issues raised with respect to the High Court’s 11 decision of Re Henderson.

Should the proceeding be transferred to the tribunal’s civil jurisdiction?

47. Rule 36 of ACT Civil and Administrative Tribunal Procedures Rules 2024 (ACAT Rules) provides that the Tribunal may make orders (on application by a party or on its own initiative) that an application commenced in one jurisdiction of the tribunal is to be heard in a different jurisdiction of the tribunal.

11 Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority [1997] HCA

48. Part 4 of the ACAT Act provides that a person may make a civil dispute application to the tribunal. This may include an application for damages for breach of contract. While the above findings mean the Sublease and the PCC are not residential tenancy agreements under the RT Act, they may nonetheless be enforceable contracts. I make no findings about the type of agreement they may be, and it is unnecessary for me to consider the legal effect of those agreements in considering whether to transfer the proceedings.

49. In the absence of any application by the applicant to transfer the proceedings, it falls to the Tribunal to consider whether to make those orders on its own initiative.

50. In my view, this question first turns on whether the Tribunal has the power to bind the Commonwealth in its civil jurisdiction.

51. Section 27 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self-Government Act) provides that ACT legislation does not bind the Crown in right of the Commonwealth unless it is expressed to do so by regulation.

52. The power of the ACT legislative assembly to make laws for the Territory is provided in Part IV, section 22 of the Self-Government Act: (1) Subject to this Part and Part VA, the Assembly has power to make laws for the peace, order and good government of the Territory. (2) The power to make laws extends to the power to make laws with respect to the exercise of powers by the Executive.

53. An ‘enactment’ is defined in section 3 of the Self-Government Act as “… a law (however described or entitled) made by the Assembly under this Act…”. It follows that the ACAT Act is an enactment for the purposes of the Self-Government Act.

54. Regulation 5 of the Australian Capital Territory (Self-Government) Regulations 2021 (Cth) (the Self-Government Regulations) lists the enactments that (for the purposes of section 27 of the Self-Government Act) can bind the Crown in right of the Commonwealth.

55. At the time of writing these reasons, the ACAT Act is not listed as an enactment that can bind the Crown in right of the Commonwealth. I also agree with the respondent’s submissions that the inclusion of the Court Procedures Act 2004 is immaterial, as that instrument is not a source of jurisdiction for the Tribunal in the proceeding. However, the inclusion of the Magistrates Court Act 1930 in this provision was considered by then Senior Member Stewart in Jezro Pty Ltd v 12 Australian Postal Corporation Inc (Jezro) (footnotes omitted): 23. ... Under section 22 of the ACAT Act, the Tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under part 4.2 of the Magistrates Court Act 1930 (Magistrates Court Act). Under section 257 of that Act, the Magistrates Court has jurisdiction to hear and decide any personal action at law if the amount claimed is not more than $250,000. That includes the power to grant any relief, redress, or remedy that the Supreme Court may grant in a similar action. … 25. The relevant effect … [is] to allow the Magistrate’s Court Act to be interpreted so that it binds the Crown in right of the Commonwealth. As the Magistrates Court Act would then bind a government, the extended immunity of government entities in section 121(4) would also no longer be available. The question then arises whether that effect on the Magistrates Court Act also carries through to the jurisdiction of the Tribunal under section 22 of the ACAT Act so as to enable civil claims to be brought against Commonwealth entities. … 28. … I note that section 266A of the Magistrates Court Act prevents civil disputes claiming less than $25,000 being started in the Magistrates Court. A civil dispute is defined for this purpose through reference to section 16 of the ACAT Act. It is likely that section 266A would therefore only apply to restrict applications to the Magistrates Court where a valid application could be made to the Tribunal.

56. The parties did not address me on these issues.

57. The parties also did not address the other issues considered in Jezro, including 13 whether Burns v Corbett has application to the Tribunal, and whether hearing and determining the application would involve the exercise of judicial power.

58. In the absence of clear arguments or further submissions, I am not prepared to make any further findings in this regard. Given the uncertainty over the tribunal’s jurisdiction to hear a civil dispute between the parties to this matter, I am therefore

12 [2024] ACAT 80 13 [2018] HCA 15 not satisfied it is appropriate to transfer the proceeding to the tribunal’s civil jurisdiction on the Tribunal’s own initiative under rule 36 of the ACAT Rules.

Conclusion

59. The Tribunal is satisfied that it does not have jurisdiction to hear the application in its residential tenancy jurisdiction because neither the Sublease nor the PCC, individually or taken together, are agreements that are governed by the RT Act. The Tribunal is also not satisfied it is appropriate to transfer the proceeding to the civil jurisdiction under rule 36 of the ACAT Rules.

60. Accordingly, the application is dismissed.

61. This does not necessarily mean the applicant is without a remedy. If the applicant wishes to commence new proceedings in the Tribunal’s civil jurisdiction, both parties should be prepared to address the Tribunal on the issues raised in these reasons as a matter of priority.

62. In the alternative, any litigation about the agreements would need to be commenced in a jurisdiction vested with appropriate authority over the Commonwealth. The applicant may wish to seek legal advice before making any decision about that course of action.

……………………………….. Senior Member S Keller

Date of hearing: 20 April 2026 Applicant: In person Respondent: Issac Gill, Australian Government Solicitor Damien Kelly, Australian Government Solicitor