List of legislation: ACT Civil and Administrative Tribunal Act 2008,

Tribunal: Mr C.G Chenoweth, Acting Presidential Member

TRIBUNAL: Mr C.G Chenoweth, Acting Presidential Member

1. The warrant for eviction issued on 13 January 2011 is not to take effect and is to lie in the registry until 25 March 2011.

This is an appeal from a decision of President Stefaniak dated 13 January 2011. The decision was to make a termination and possession order ("the Order") terminating the Appellant's tenancy of premises at -[address removed]- ("the Premises"). A warrant for eviction was also issued on that date. In this appeal, the Appellant also seeks a stay of the warrant of eviction.

There had been a number of hearings in the proceedings between the parties leading to the Order. These hearings resulted from an earlier order for eviction made in 2010. Amendments were made to aspects of this order to enable the Appellant to try and meet his rental obligations. The matter was adjourned on several occasions due to the failure of the Appellant to appear. The Appellant's employment and his remuneration varied over time, resulting in changes to the rent payable. The Appellant fell behind in his rent obligations at various times. All of these factors led the Tribunal to make orders in its original jurisdiction to assist the Appellant in meeting these obligations.

These steps taken by the Tribunal prior to 13 January 2011 were appropriate exercises of its power within its original jurisdiction. These steps resulted in the making of the Order. It is the Order, not the individual steps leading to the making of the Order that is the subject of this appeal.

When the appeal was heard, the Respondent's representative submitted that the application should be dismissed because it failed to meet the requirements of section 79 (b) of the ACT Civil and Administrative Act 2008 ("ACAT Act"). The essence of this argument as I understood it was that one or more of the earlier proceedings in the original jurisdiction of the Tribunal somehow constituted an appeal, and that the power to consider an appeal under section 79 following the filing of the appeal notice was therefore extinguished.

Written submissions from the Respondent were handed up. These submissions also argued that there was no matter of fact or law present in the application that would warrant the making of a conditional termination and possession order, if the Tribunal considered that to be appropriate. The submissions dealt with other matters referred to in the notice of appeal.

The Respondent's representative was not able to clarify which of the particular proceedings leading up to the making of the Order constituted an "appeal" such that it exhausted the power under section 79. Nor was the Respondent's representative able to explain why if one or more of those hearings constituted the "appeal," the Respondent had continued to participate in the proceedings without objection. It is clear from the Tribunal's file that the President considered that he was dealing with the matter at first instance, and that the matter was not concluded before him until the making of the Order.

I am satisfied that there is no merit in the Respondent's argument. Until the appeal notice filed by the Appellant on 28 January 2011, there was nothing to bring this matter within the appeal jurisdiction of the Tribunal. Accordingly,

I decided that the appeal should be dealt with as a review of the original decision on the grounds set out in the application to appeal. Accordingly it was dealt with under section 82 (b) of the ACAT Act.

The notice of appeal claimed that the Tribunal was wrong to make a termination and possession order, and that it should have made a conditional termination and possession order under the Residential Tenancies Act. The notice also claimed that in the proceedings leading to the Order, the Appellant had provided evidence on which a properly instructed tribunal should have made a conditional termination and possession order.

Annexed to the notice of appeal was a statement from the Appellant setting out a number of matters which the Appellant claimed showed that the making of the Order was unjust.

The Appellant gave evidence substantially in accordance with the statement annexed to the notice of appeal. He also described his personal circumstances including the medical effect that these proceedings had had on him, and the difficulties that he faced in supporting his children who are living with his ex-partner. It was clear that his employment difficulties had contributed to his failure to pay the rent. He did not advance any argument as to why a conditional order should be made.

The Appellant also criticised his former representative, Welfare Rights and Legal Centre, for failing to keep him fully informed about hearing dates and the terms of various orders. When questioned about these, it was clear that the Appellant had known of the dates of a number of the hearings as he had been present at the Tribunal. His own failure to keep a diary, and to focus on this matter as a priority, appear to be the reasons for his failure to attend.

The Appellant claimed in the first point of his statement annexed to the appeal notice that he had suffered a migraine on the day of the hearing. He participated in the hearing by telephone, but there was a buzz on the line, and it was noisy and hard to hear. I have listened to the audio transcript of the hearing. I am satisfied that the Appellant was able to hear and participate in the Tribunal's proceedings, although I note that he did refer to having a migraine. I do not consider that this constituted an unfair procedure for the Appellant or that it constitutes grounds for review of the decision.

Having considered the Appellant's written material and heard his evidence (including the cross examination by the Respondent's representative) I am satisfied that there are no grounds for overturning the Order. I also note that in proposing the making of a conditional termination and possession order, the Appellant did not provide details of what such an order should include, nor evidence to support those details. Accordingly, this appeal is dismissed.

The Appellant sought extra time prior to the warrant for eviction being exercised, if his appeal was unsuccessful. The Respondent's representative did not object to an additional period. I consider a period of approximately 3 weeks is a reasonable period to enable the Appellant to make other arrangements, having regard to the history of this matter and the proper interests of the Respondent. Accordingly I order that the warrant for eviction lie in the Tribunal's registry, and not take effect, until 25 March 2011.

RESPONDENT: COMMISSIONER FOR SOCIAL HOUSING IN THE

RESPONDENT: Commissioner for Social Housing in the ACT,

TRIBUNAL MEMBER/S: Mr C.G Chenoweth, Acting Presidential Member

DATE/S OF HEARING: 2 March 2011 PLACE: CANBERRA

DATE/S OF DECISION: 7 March 2011 PLACE: CANBERRA

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