Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 44, 56

Residential Tenancies Act 1997 ss 49, 83

Cases cited: Allesch v Maunz [2000] HCA 40

Commissioner For Social Housing v Hutchings & Gottschalk-Krutsky [2016] ACAT 88

1. The termination and possession order dated 29 September 2016 is set aside.
2. The matter is adjourned to Thursday 24 November 2016 at 12.00pm.
3. The tenant is to be allowed back into the premises as of 2.30pm, 27 October 2016.
4. The tenant is to pay all current rent as and when it falls dues, first payment to be made on 6 November 2016.

That the tenant needs at a minimum to produce at the hearing medical evidence as to his condition and treatment, and evidence of setting up of a direct debit of rent to the applicant. The tenant is advised to consider applying for a rental rebate, the institution of financial management orders and dealing with CARE urgently.

1. The parties in this matter were the Commissioner for Social Housing (the Commissioner) represented by Mr Ostopowicz and Mr Bradnam represented by Ms Gould of Canberra Community Law.

1. By an application filed on 18 August 2016 (application), the Commissioner sought a termination and possession order pursuant to section 49(1) of the Residential Tenancies Act 1997 (RT Act) for failure of the tenant to pay rent.
2. A further order pursuant to section 83(c) of the RT Act was sought for the payment of outstanding rent arrears as at the date of termination.
3. Tribunal records indicate that the application and hearing notice were mailed to the respondent at his correct given address by prepaid (normal) post on or about 26 August 2016. The hearing notice advised the respondent that the matter had been listed for hearing on 15 September 2016 at 11.00am. The notice contained the words:

You must attend the hearing in person or send a person to represent you who is properly authorised.

1. The letter was not returned to the tribunal as undelivered. Indeed, Mr Bradnam acknowledged that he probably had indeed received it, but because of his then emotional state, he had not opened it.
2. The respondent did not attend the hearing on 15 September 2016, nor did he send a representative.
3. At the hearing on 15 September 2016, Presidential Member Daniel did not make final orders. She adjourned the matter to 29 September 2016 at 10.00am, and noted on the bench sheet that "...If the tenant does not attend the hearing on 29/9/16, the application may be decided in his absence, and orders with effect as a warrant of eviction may be made."
4. These orders, together with a new listing notice, were sent to the tenant at the same correct address by express post.
5. On 29 September 2016, the matter returned to the tribunal before Senior Member Robinson. There was again no appearance by Mr Bradnam. The tribunal attempted to telephone him, but the number supplied for him by the Commissioner was not working. No contact was possible.
6. Senior Member Robinson made the orders requested by the Commissioner, including making the order as having effect as a warrant.
7. Due notice of this was given to the tenant, and the Australian Federal Police (the AFP). The AFP made contact with Mr Bradnam, and subsequently evicted him. Mr Bradnam then (on 26 October 2016) filed the application for interim or other orders - general. Although what he was actually seeking was unclear from the words used, the Tribunal deduced that he wanted the termination reversed or set aside on the grounds that he "...didn't have an opportunity to tell [his] story to the tribunal." He further alleged that he was unable, due to depression, to engage in conversation with bureaucracy, whether to his advantage or detriment, and that the Commissioner knew this.
8. The matter was urgently listed for 1.30pm on 27 October 2016, and all parties and their representatives were present.

1. It was not in dispute that the tribunal had the power to conduct the hearing on 29 September 2016 as it did, but to avoid doubt, I note that section 44 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) expressly provides that if a party fails to appear either personally or by a representative, the tribunal may proceed to hear the matter in that party's absence.
2. The tribunal's power to set aside a decision made in the absence of one party is found in paragraph 56(c)(i) of the ACAT Act, which provides that:
   1. Other actions by tribunal

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

1. The ACAT Act does not set out any criteria for the exercise of power under section 56, which allows the tribunal a broad discretion.
2. Whilst the tribunal's discretion to set aside matters is broad, it must be exercised with general regard to the area of jurisdiction in which the tribunal is sitting and the law. The starting point for any consideration should be the principles in section 7 of the ACAT Act. These relevantly provide that:
   1. Principles applying to Act

_In exercising its functions under this Act, the tribunal must - _

(a) ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and

(b) observe natural justice and procedural fairness.

1. The concepts of natural justice and procedural fairness encompass the right to a fair hearing. A fair hearing requires, amongst other things, that a person whose interests are affected by a decision must ordinarily be given a right to be heard. As was observed by Kirby J, in his decision in Allesch v Maunz[1]:

[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice" Re Brook and Delcomyn [1864] EngR 418; (1864) 16 CB (NS) 403 at 416 per Erle CJ [1864] EngR 418; [143 ER 1184 at 1190]. The maxim is audi alteram partem, audiatur et altera pars. See Broom, A Selection of Legal Maxims, 10th ed (1939) at 65; cf Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589; The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-396. It is a rule of natural justice or "procedural fairness" Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583. It will usually be imputed into statutes creating courts and adjudicative tribunals ...

1. Section 7 of the ACAT Act expressly include the rules of procedural fairness and natural justice. The right to be heard must be the starting point to any consideration of whether to set aside a decision that has been made in the absence of a party.
2. However, while natural justice requires that a person be given a right to be heard, it does not require that the person actually be heard before a decision can be made. As Kirby J went on to observe in Allesch v Maunz:

[38]... Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests... .

Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. ... Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.

1. Turning to the specific issue of when a decision made in the absence of a party should be set aside for a lack of procedural fairness, Kirby J concluded at paragraphs 49 and 50 of Allesch v Maunz that:

[49] If no reasonable explanation is given for the default, it is not an injustice to deny the party in default a second opportunity to be heard. That opportunity is taken to have been waived or forfeited. Nowadays, the consideration of the reasonableness of an explanation will take into account the legitimate interests of any other party affected by the court's order (including any innocent third parties) as well as the general public. The interests at stake include a general respect for the finality of judicial orders and for the efficient management of judicial proceedings that is consistent with their fundamental objectives, including the attainment of justice.

[50] Similarly, there will be no miscarriage of justice if the party affected by the impugned order cannot demonstrate an arguable case that reopening the matter might reasonably produce a materially different result which is more favourable to that party. If the process by which that order is made is flawed, but it is not shown that the outcome might reasonably be materially different, the party offended by the process may be upset by a sense of procedural injustice. However, upon analysis, that feeling will not find reflection in the ultimate disposition of the rights and duties of the parties with which the law is finally concerned. Correction concentrates on any supposed error in the ultimate judicial orders and not exclusively on the procedures leading to, or reasons given for, those orders.

1. In oral submissions before the Tribunal, both parties broadly accepted the dual test as the appropriate test to be applied in this case.
2. It should be noted that Kirby J delivered a minority judgment in Allesch v Maunz. The majority observed, in relation to a comparable provision of the Family Law Act 1975 (Cth), that justice as between the parties must be considered when exercising the discretion to set aside:

[28] The consideration which informs the power conferred by s 79A of the Act is that the court be satisfied that there was "a miscarriage of justice". And whether exercising inherent power or a power of the kind conferred by s 79A of the Act, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs. However, where, as here, orders have been carried into effect, injustice may not be capable of remedy except on terms that those orders stand and that the matter be reopened only to a limited extent.

1. Having regard to the judgments of both the majority and Kirby J in Allesch v Maunz it seems apparent as Senior Member Robinson observed in Commissioner For Social Housing v Hutchings & Gottschalk-Krutsky[2] that the purpose of the discretion in paragraph 56(c)(i) is to prevent a 'miscarriage of justice'. Where the 'dual test' is met, the circumstances will usually justify the setting aside of an order.

1. In this matter, Mr Bradnam stated that he had been suffering a panic attack, probably (again, stated by him) as being self-caused due to his not taking his prescribed medications during the relevant period (which I define as the time between receiving his notification of the hearing, and the tribunal's determination of the matter at the last hearing). I note that this finding does not extend to the prior period(s) where Mr Bradnam omitted to pay his rent.
2. I allow that situation to be an excuse for Mr Bradnam's behaviour, inasmuch as although failure to open his mail was his own choice, he made that choice from a position where in his own reality he was not able to function normally.
3. The objective observer would possibly say "But I would open my mail, and be aware of my obligations to others." And they would, all things being equal, be right. But Mr Bradnam was not in the same headspace as a normal observer at that point. And I use what I assess to be Mr Bradnam's view of the world at that time to make the test of how he would have reacted, not how the reasonable otherwise untroubled individual would have reacted to a letter from authority.
4. I say this, having regard to my understanding of what Kirby J said in Allesch v Maunz. It makes no sense to me to argue that "afford[ing] a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made" means that the standard should be taken to be the 'reasonable man' or 'the man in the street' or 'the man on the Clapham omnibus' or any other of the members of that family who are creatures of law whose one aspect of consistency is their normality. Kirby J must have meant to look into the state of mind of the particular case before him. And in the case of Mr Bradnam, I am persuaded that the pressures he enumerated in the hearing had the effect of making him unable to function at a normal or practicable level.
5. For that reason, I am satisfied that he had a reasonable excuse for non-attendance.
6. I now turn to the question of whether had he attended, would it have made a difference?
7. The requirement that the respondent have an arguable case does not require that the Tribunal need to be satisfied that any of these grounds are actually made out. It need only be satisfied that the grounds are at least arguable. I am satisfied that this test is met. The Commissioner did not seriously contest this point.
8. Mr Bradnam has been in the premises for 21 years, either on the same lease or novated variants of that lease with the same lessor (the Commissioner). He does not have a history of always prompt rent payment. Indeed, he appears to hardly ever pay rent in accordance with the regularity envisaged by the lease agreement but rather he pays in large dollops of money every so often. The lessor has not sought to evict him on a regular basis in the past.
9. Moreover, I deduce that the actual amount of rent alleged owing is not clearly or finally determined. I am in no doubt that Mr Bradnam owes a significant sum of rent. But how much is something of an issue, given that there are questions of rental rebates that have not been addressed.
10. It is not for me to enquire into the question of how much rent is owing, or when or whether it will be paid. These are questions for decision by the tribunal that decides the issue of the termination and possession order when it is heard. The question I need to ask is whether there is a chance that if the respondent had been present, at the hearing on 29 September 2016 the decision at that time would have been different.
11. I do not know if the decision would have been different. But after hearing from the tenant and his solicitor, and being aware of the possibility of different sorts of termination orders, including conditional termination orders, I cannot discount the possibility that the existence of such options might have affected the outcome differently.
12. Accordingly, I am satisfied that the respondent had an arguable case and that his attendance (or that of a nominated representative) may have made a difference to the outcome of the initial hearing when the termination and possession order was originally made. For these reasons, I set aside the decision of 29 September 2016.

[1] [2000] HCA 40

[2] [2016] ACAT 88