1. Orders 2.2, 2.3 and 2.4 contained a transcription of the text of the relevant statutory/contractual provision referred to in the order but did not contain any details or particulars of any kind of conduct that may constitute a breach of these provisions. Clauses 70(b) and (c) say:
   1. the tenant must not:

(a) use the premises, or permit them to be used, for an illegal purpose to the detriment of the lessor's interest in the premises; or

(c) interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises.

1. The text of clause 66 of the Schedule to the RTA is:

Tenant of unit to comply with owners corporation's rules

1. If the premises are a unit under the Unit Titles Act 2001, the tenant must comply with the owners corporation's rules, and with any notice served in accordance with the rules, to the extent that they are not inconsistent with the standard residential tenancy terms in this agreement.
2. The tenant was self represented on that occasion. The transcript of the hearing discloses that one issue of focus was the adverse behaviour of the tenant's visitors. The tenant explained that she had no control over these men and had been the victim of domestic violence from the boyfriend. This lack of control extended to visitors bringing their dogs to her unit.
3. The previous Tribunal member explained carefully to the tenant her duty to constrain the behaviour of her visitors and her responsibility for their conduct. It was suggested to the tenant that she take advice on the domestic violence issue. She was warned that further bad behaviour by her visitors may result in the termination of her tenancy.
4. On 9 February 2015 the applicant lodged an application with the tribunal seeking termination of the tenancy pursuant to section 48 of the RTA by reason of the tenant's alleged breach of the order of 6 November 2014, and in particular order 2.4 dealing with the disturbance of neighbours.
5. The matter was initially listed on 2 April 2015. There were discussions concerning a possible resolution of the matter via a transfer of the tenant to new premises, not to be disclosed to visitors. The parties undertook to engage in discussion on this point. Procedural orders were also made on 2 April 2015 and later amended.
6. On 30 April 2015 the applicant filed submissions. The applicant sought termination under section 48(1)(b) of the RTA for breach of the earlier orders 2.3 and 2.4. Later, the applicant confined the focus of the claim to order 2.4 alone.
7. The submissions alleged that on 23 February 2015 the tenants' visitors vandalised common property at the flat by graffiti. Photographs of the graffiti were annexed to the submissions. This was said to breach the Owners' Corporation Rules which made residents responsible for the conduct of visitors. A copy of the Rules was annexed.
8. The submissions alleged that the tenant and her visitors made excessive noise late at night on 15 December 2014 with a trolley and dogs they had on the premises. A statement from a neighbour was annexed. By the time an application came on for hearing, on 16 June 2015 the applicant had added a further alleged breach relating to loud banging noises heard by the neighbour.
9. The applicant submitted that upon a finding that the tenant had in fact breached the order made under section 83(b), the Tribunal was required to consider whether the breach justified termination.[1]
10. The applicant referred the Tribunal to the decision of the former NSW Consumer Trader and Tenancy Tribunal in Department of Housing v Bronson [2002] NSWCTTT 45 to which there were some factual similarities. In that case the NSW Tribunal had regard to the cumulative effect of the tenant's conduct on neighbours and her failure to take positive steps to constrain the behaviour of visitors.
11. The applicant pointed to the transcript of the hearing on 6 November 2014 at which the section 83(b) orders were made and to the careful warning given to the tenant by the Tribunal member. The applicant contended that the tenant had demonstrated no regard for what she had been told by the Tribunal.
12. On 28 May 2015 Canberra Community Law filed submissions on behalf of the tenant. The essence of the submissions that former orders 2.2, 2.3 and 2.4 are not orders that could lawfully be made under section 83(b) of the RTA and therefore cannot support a termination. In the alternative, the orders were too vague to be valid.
13. The tenant admitted the involvement of her visitors in the trolley incident of 15 December 2015 but denied any involvement by herself. She denied any involvement in or knowledge of the dog incident on the same night. The tenant admitted that her visitors were responsible for the graffiti on the common property but had acted without her knowledge or consent. The tenant said she had no knowledge the banging incident to which the neighbour referred.
14. The tenant's submissions annexed a witness statement from the tenant and a report from a social worker who had been working with the tenant since 6 January 2015. The report set out the steps that had been taken to educate the tenant in norms of social behaviour and methods to control the behaviour of her visitors.
15. Also annexed was a report from a psychologist who treated the tenant between November 2007 and March 2011. The report addressed the tenant's troubled childhood and her impaired emotional, cognitive and social development. It spoke of her inability to protect herself from abusive situations.
16. The tenant's submissions state that the tenant has removed her boyfriend and his brother from the premises.
17. The tenant's submissions relied upon the decision in Commissioner for Social Housing v Jordan [2013] ACAT 19 (Jordan) to say that the orders made in the present case were not validly made under section 83(b) of the RTA. The argument is put on the basis that section 83(a) is in the nature of a prohibitive injunction to restrain conduct and section 83(b) is in the nature of a positive injunction compelling certain conduct:
    1. Orders by ACAT

Without limiting the orders the ACAT may make, the ACAT may make the following orders in relation to an application about a tenancy dispute or occupancy dispute:

(a) an order restraining any action in breach of a residential tenancy agreement or occupancy agreement;

(b) an order requiring performance of a residential tenancy agreement or occupancy agreement;

1. The argument is that order 2.4 is restraining or prohibitive in nature and is an order the of the type that may be made under section 83(a) but it is not of a positive kind that can be made under section 83(b). Order 2.4 was an order that the tenant not cause disturbance to her neighbours. The Tribunal has no doubt that order 2.4 is plainly of a prohibitive kind.
2. Order 2.3 has more of a positive injunction feel about it. However there is no suggestion that the Owners Corporation has ever served any notice or taken any action of any kind against the tenant. The applicant did not ultimately press a termination order based only on order 2.3.
3. The characterisation of order 2.4 in terms of sections 83(a) and 83(b) becomes relevant because of what can only be an unintended legislation lacuna in section 48(1)(b)(i):
   1. Certain breaches of standard residential tenancy terms

_(1) On application by a lessor, the ACAT may make a termination and possession order if - _

(ii) is satisfied that the tenant has breached that order; and

(iii) is satisfied that the breach justifies the termination of the tenancy.

1. The power to terminate the tenancy is expressly restricted to the circumstances of a breach of section 83(b) (positive injunctions) and as such does not catch a breach of section 83(a) (prohibitive injunctions).
2. The tenant relies upon the literal construction of section 48(1)(b)(i) such that the Tribunal's power to terminate a tenancy is restricted to breaches of an order of a positive kind of which order 2.4 is not one.
3. The second part of the tenant's submission is to the effect that even if orders 2.2, 2.3 and 2.4 were able to be characterised as orders of a positive injunctive kind, the orders only state that the tenant is to comply with existing contractual obligations, they do not require any particular positive action on the part of the tenant. Semantically and logically they are equally consistent with a prohibitive form of injunction, namely that the tenant not breach these terms of her tenancy agreement.
4. The tenant relied upon Jordan. This case concerned an order purportedly made under sections 83(a) and (b) of the RTA that the tenant 'refrain from any behaviour amounting to breach of her obligations under the Residential Tenancies Act 1997... with particular reference to clause 70(b) and clause 70(c)...'
5. The Tribunal held that such an order was prohibitive in nature and as such, did not fall within the ambit of section 83(b) of the RTA. The Tribunal also found that the lack of specificity in the order was such that it could not be a valid prohibitive injunction. The Tribunal acknowledged that it was impractical for the applicant or the previous Tribunal to attempt to conceive of, and list, all possible future breach of clauses 70(b) and (c), so that some degree of generality was required in the way the order was framed. However, the Tribunal formed the view that merely referring to clauses 70(b) and (c) per se did not provide sufficient specificity. The order should be limited to the kind of disruptive behaviour that the applicant sought to restrain e.g. loud noise late at night etc.
6. The tenant's submission then deals with the concept of when the tenant can be said to have 'caused or permitted' actions by her visitors, within the meaning of clause 70(b) of the RTA and order 2.4. In some instances it is said that the tenant was not present and had no knowledge of the behaviour of the visitors. In these circumstances it is not open to the Tribunal to find that she breached clause 70(b).[2]
7. The submissions contend that the tenant lacked the power to interfere and prevent some of the behaviour of her visitors of which she was aware. The men were aggressive and she had been subjected to violence at the hands of her boyfriend.[3]
8. The matter was listed for hearing on 16 June 2015. Mr Butler appeared for the applicant and Ms Bartlett from Canberra Community Law appeared for the respondent. Further unsuccessful attempts were made at a settlement.
9. At the hearing the parties agreed the facts as set out in paragraph 15 of the respondent's submissions, namely:
   • (a) item 15(i) and (ii) (the trolley noise issue and dogs late at night issue) were committed by visitors only, without the tenants knowledge or consent;
   • (b) item 15(iii) and (iv) (the vandalism) were committed by visitors while the tenant was present but without her consent or power to restrain them; and
   • (c) the tenant has no knowledge of item 15(v) (banging at night) and the applicant had no evidence of the identity of the person making the noise.

1. Mr Butler tendered a file note from the applicant's records relating to a further alleged incident on 26 May 2015 in which the tenant and/or her visitor are alleged to have left oil over their car park, dumped a bag of rubbish at the same spot and made 'noisy-banging and crashing'. He made it clear that this incident did not form part of the applicant's case and that he was only responding to a question from the Tribunal concerning any more recent events. The note goes on to say that a housing officer attended the site and found nothing.
2. The applicant argued that the previous order 2.4 should be accepted as an existing valid order made under section 83(b). The Tribunal should not consider the issue of whether order 2.4 was validly made under that section. The applicant argued that if the tenant took the view that order 2.4 was not validly made under section 83(b) then the appropriate course was for an appeal by the tenant, which had not occurred.
3. The applicant submitted that the terms of order 2.4 were sufficiently specific given the terms of the previous correspondence with the tenant and the content of the hearing of 6 November 2014 which specifically identified the allegations against the tenant. The applicant submitted that it was impractical to delimit a section 83 order to the specific kinds of behaviour that had occurred to that point in time.
4. The tenant argued that no regard should be had to extrinsic materials in determining whether order 2.4 is sufficiently specific on its face. The tenant argued that the orders should be specifically limited to the kinds of conduct proven against the tenant in the proceedings for the orders on 6 November 2014.
5. The neighbour gave evidence on behalf of the applicant and her witness statement of 14 April 2015 was tendered. She was questioned by Ms Bartlett and the Tribunal.
6. The Tribunal formed a view that the neighbour had suffered a degree of anxiety related to the tenant and her visitors, and noted that she has since moved out of the complex.
7. The difficulty for the Tribunal is that the neighbour's evidence showed her to be a very sensitive and insecure person. She seemed anxious about the mere presence of a male in the tenant's unit or transiting to and from that unit. It did not seem to matter whether they were doing anything or not. She said that she formed a negative view of the tenant and her boyfriend on the very first night they moved in when all they had done was make noise in the moving process. She seemed to have formed an adverse view on the basis of the appearance and gender of the tenant's boyfriend and brother. She made assumptions that anything that went wrong in the complex was the fault of the tenant and her visitors; for example, her car was damaged and she automatically ascribed this damage to the tenant and her visitors with no evidence to support that conclusion.
8. The Tribunal does not doubt that the neighbour genuinely believed the things about which she gave evidence but could not avoid the conclusion that her anxieties were principally a product of her own social and psychological phobias. Her evidence does not equate to that of a neighbour of ordinary resilience. This concern and reservation was explicitly put to her at the hearing.
9. The parties agreed that the Tribunal should resolve the issue of law, and depending on the outcome, the matter would be relisted for finalisation. They agreed to continue negotiations towards a mutually acceptable solution.
10. On 2 July 2015 the applicant notified the Tribunal that no agreement had been reached and that the Tribunal should proceed to a final decision on the papers.
11. On 3 July 2015 the parties were told that any final submissions were due by 10 July 2015. None were received and there was no request to resume the oral hearing.

1. The present dispute arises because of the obvious legislative drafting omission in section 48(1)(b)(i). The Tribunal can see no policy reason for limiting section 48(1)(b)(i) to breaches of section 83(b) and not including section 83(a). Nevertheless the error is there until such time as the law is amended.
2. The first question that arises is whether the Tribunal can have regard to its view that a simple drafting error has occurred, and construe the legislation in a manner that corrects the error. If this approach is adopted then the outcome would be that section 48(1)(b) would refer to breaches of orders under both sections 83(a) and (b). On that construction the principal issue in the present case, and that in Jordan, evaporates and it would be open to the Tribunal to consider the present termination application having regard to the challenge to the specificity of order 2.4 and whether the admitted breaches justify the termination.
3. The issue of correcting drafting errors is addressed by Pearce and Geddes [2011] 'Statutory Interpretation in Australia' 7th Ed at [2.28].
4. The second question is whether order 2.4 was a valid expression of section 83(b). For the reasons given above and in Jordan the Tribunal is satisfied that order 2.4 is not such an order. It is plain that it is however capable of being made under section 83(a). If the drafting error can be corrected, order 2.4 remains as a valid order that can be enforced under section 48(1)(b) of the RTA.
5. If section 48(1)(b) is applied in its present uncorrected state, then arguments about the specificity of order 2.4 are irrelevant. Order 2.4 is not an expression of the power in section 83(b) and so cannot form the basis for a termination irrespective of its specificity.
6. If it had mattered, the present Tribunal would have found that the content of order 2.4 was sufficiently specific on the facts of this case. The tenant knew what was alleged against her and what she was being ordered not to do in the future. This is not to say that merely reciting the text of the statutory/contractual obligation will always be sufficient. In the present case, order 2.3 is an example of an order that lacks sufficient specificity. It is too broadly drafted to be valid. For this reason it would not have mattered whether the applicant had abandoned reliance on order 2.3.
7. The remaining issue is the applicant's argument that the present Tribunal must take order 2.4 on its face as a valid expression of section 83(b). Any challenge to its validity should have been by appeal by the tenant.
8. The alternatives open to the Tribunal appear to be:
   • (a) read section 48(1)(b)(i) in the amended form that includes reference to section 83(a) and then consider whether the admitted breaches justifies termination;
   • (b) apply order 2.4 on the explicit basis that it is a valid exercise of power under section 83(b) and then consider whether the breaches justify the termination;
   • (c) set aside order 2.4 and remake it as a section 83(a) order and then dismiss the application for want of any power under section 48(1)(b); or
   • (d) proceed on the basis that order 2.4 remains on the record unaltered, but find for the purposes of these proceedings that order 2.4 is not a valid section 83(b) order as per Jordan and dismiss the application for want of power under section 48(1)(b).

1. Part of the problem with alternative (a) is that it is bold step for a low level Tribunal to adopt. Some may think it more appropriate that a decision of this kind be made by the Supreme Court.
2. In terms of option (c) above, during the hearing the Tribunal referred the parties to the decision of the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 and queried whether the power enunciated in this case for a tribunal to correct obvious errors of law, would apply in the present case.
3. Because of the difficulties associated with the statutory construction issues in this case, it is useful to consider the outcome on alternatives of paragraphs 51(a) and (b) i.e. irrespective of the statutory issues, would the breaches justify termination?
4. The Tribunal understands the applicant's position with poorly behaved tenants or their visitors. This issue was canvassed at length during the hearing. In the present case there have been several significant changes that have occurred since the previous orders were made in November 2014, each of which is relevant to whether the breaches justify termination under section 48(1)(b)(iii) of the RTA:
   • (a) the tenant has removed her boyfriend and his brother from the flat;
   • (b) all the dogs have gone;
   • (c) the tenant is undergoing active psychological counselling and assistance in living skills; and
   • (d) the neighbour has left the premises.

1. The applicant does have social objectives beyond that of a private lessor as the housing provider of last resort. If the tenant is evicted she will likely remain homeless.[4] This will also have an impact on her access to her children.
2. It seems that most, if not all, the complaints post November 2014 have come from the neighbour. Her evidence is most unconvincing and it would be unfair on the tenant to give effect to the neighbour's quickly formed subjective negative view about the tenant and her male visitors.
3. The tenant has admitted some of the allegations but in no instance has it been alleged or proven that the tenant was personally involved, or did anything to encourage the actions. The applicant argues rightly that she is responsible for the actions of her visitors, but this does mean that the Tribunal must ignored the power imbalance issue at play when considering whether the breaches justify termination of the tenancy. There are a number of cases from the superior courts and the tribunals of the states/territories on this same issue in which termination of a social housing tenancy was not granted in similar circumstances.[5]
4. In the present case the Tribunal is not unsympathetic to the difficulties of the applicant's role, but we are dealing with a highly vulnerable young woman. The psychologist's report provides background and context to her behaviour. The social worker's report suggests that the tenant is at a point where there may be some progress in her personal, social and psychological development with minimal risk of further disruption (assuming the boyfriend and brother do not return to the flat). If she were evicted, it is likely that long term setbacks in her personal developments can be anticipated.
5. In the circumstances of the case the Tribunal is not convinced that the breaches justify termination of the tenancy. It becomes unnecessary to resolve the outstanding statutory issues at paragraph 51 above.
6. If the boyfriend and brother return to the flat and cause further problems for other residents, the applicant can review the matter again. The tenant has been told by a range of people now of the danger that she faces if she allows the return of these males to the flat.

[1] Section 48(1)(b)(iii) of the RTA

[2] Department of Housing v Consumer, Trader and Tenancy Tribunal of NSW & Anor [2003] NSWSC 150 at [28]

[3] NSW Land and Housing Corporation v Scicluna [2009] NSWCTTT 615; Broad v Parish [1941] HCA 25; (1941) 64 CLR 588 at 594; NSW Land and Housing Corporation v Draper [2000] NSWRT 193

[4] Anforth, Christensen and Bentwood [2014] 'Residential Tenancies Law and Practice in NSW' 6th ed at [2.87.2][2.136.1]