The application was considered in chambers on 20 April 2021 and listed for further consideration in chambers by the Original Tribunal on 27 May 2021. The tenant was not notified of these listings. The orders of 27 May 2021 were sent to CSH and CCL, but not to the tenant. The decision of 6 October 2021 was that day sent to CSH but was not provided to the tenant until 23 March 2022.

The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.

Tenant 202154 in response emailed to ACAT "Hi there, I'm sorry but I haven't been told exactly what any of this is about? Can someone please explain this to me?". The registry provided a short email summary of the situation. The tenant responded "Thank you for getting back to me. So this is in terms of my temporary house. I was in this as my other property in [suburb] burned down, I was placed here on a 6 month lease until a) a property became available in the area I needed or b) if I agreed to stay here long term. This is all so confusing and I've had no contact from housing in regards to this. Anytime I have called my housing manager I have been told they will get back to me but they never do. If someone could call me to explain exactly what is going on, I would really appreciate that." The tenant was referred to CCL. She responded "I don't want legal advice. I just want to know why this is going through court? For what reason?". The registry repeated the referral to CCL.

Tenant 202154 did not attend the Webex directions hearing on 25 February 2022 as she advised she was at work, and she did not attend the hearing of the appeal on 2 March 2022.

Residential tenancy agreement signed 18 February 2021, consisted of the following initialled pages:

• Schedule of Tenancy Details including Initial Rent Table
• Attachment A Standard Residential tenancy terms
• Attachment B - Housing Commissioners Additional Terms
• Attachment C - Rules of the complex Flat/Townhouse/Aged Persons Unit
• Attachment D - Special Conditions

The Schedule indicated that the agreement was for a fixed term 18 February 2021 - 21 August 2021. It also included Attachment E - Energy Efficient Rating Statement, however this was not included in the documents provided to the Tribunal.

The Application for Endorsement was signed 18 February 2021.

Part F(b) stated: The tenant moved into his mother's home at [address] ('the premises') after his previous home, also a property managed by the Commissioner for Social Housing, was subject to a home invasion. The tenants' mother terminated her tenancy and moved out of the premises in order to rent privately, so the lessor entered into this fixed-term tenancy with the tenant, allowing him to remain in the premises short-term while he and the lessor identify a suitable long-term replacement for his former home.

Part F(c) stated: It is expected that this residential tenancy agreement will only be terminated on 30 days notice in order for the tenant and the lessor to enter into a periodic tenancy for the premises or another suitable property

The application was considered in chambers on 20 April 2021, and listed for further consideration in chambers by the Original Tribunal on 27 May 2021. The tenant was not notified of these listings. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH and the tenant.

The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.

Tenant 202155 did not contact the Tribunal in the course of the appeal, nor did he participate in the directions hearings or hearing of the appeal.

Residential tenancy agreement was signed on 8 February 2021 and consisted of the following initialled pages:

• Schedule of Tenancy Details
• Initial Rent Table
• Attachment A Standard Residential tenancy terms
• Attachment B - Housing Commissioners Additional Terms
• Attachment C - Rules of the complex Flat/Townhouse/Aged Persons Unit
• Attachment D - Special Conditions

Schedule 1 indicated the tenancy was for a fixed term 8 February 2021 to 8 May 2021. Schedule 1 also indicated that Attachment D was not a part of the agreement, although Attachment D was included in the bundle and the pages initialled.

The Application for Endorsement was signed 16 March 2021.

Part F(b) stated: [name] (the tenant) became a resident of the Housing ACT property [address] (the premises) with two children on 7 July 2020. [The tenant's] partner, [name] has been the tenant since 2 July 1999 and is the mother of the oldest child. Due to [the partner's] death in January 2021, the lessor and the tenant have entered into a short-term fixed Term Tenancy Agreement, to allow the tenant and his family to remain in the premises while the tenant is being assessed for eligibility for housing assistance in his own right.

Part F(c) stated: It is expected that the lessor will only invoke the 30 day termination clause proposed if the tenant is assessed as eligible for housing assistance (in which case the tenant and the lessor will enter into a periodic tenancy for the premises) or if the tenant is assessed as not eligible because he does not meet the income thresholds, and can instead afford to rent on the private rental market.

The application was considered in chambers on 1 April 2021, and orders made that a signed tenancy agreement showing Attachment D formed part of the agreement should be provided. This order was sent to both CSH (by email) and tenant (by express post) on 8 April 2021. On 9 April 2021 CSH advised the tribunal by email "The tenant has signed an amended version of the tenancy agreement which is attached". The attached document did not indicate a new date of signing but appeared to be the agreement originally lodged, executed on 8 February 2021, but with a different Schedule page 1.

On 22 April 2021 the matter was considered in chambers by the Original Tribunal and listed for further consideration in chambers on 27 May 2021. CSH was directed to provide a copy of the pro forma termination notice that would be issued under the additional term.

The tenant was served with these orders and advised by covering letter that his presence was not required on 27 May 2021. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH and to the tenant.

The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.

The Tribunal received an email reply to initial service of the appeal proceedings from tenant 202156 stating "I don't understand why I am getting this email." The registry provided by email a short summary of the situation. There was no further contact from that tenant.

Residential tenancy agreement was signed 23 December 2020, consisted of the following initialled pages:

• Schedule of Tenancy Details
• Initial Rent Table
• Attachment A Standard Residential tenancy terms
• Attachment B - Housing Commissioners Additional Terms
• Attachment C - Rules of the complex Flat/Townhouse/Aged Persons Unit
• Attachment D - Special Conditions

The agreement indicated it was for a fixed term 23 December 2020 to 23 June 2021. It included Attachment D twice, once signed and dated and once initialled.

The Application for Endorsement was also signed 23 December 2020.

Part F(b) stated: The [address] ('the premises') is an aged persons unit, and the previous tenant was [tenant's name's] father. [tenants name] ('the tenant') was residing in the premises from April 2020 to assist in providing care to her father until he passed away in November 2020. The tenant currently has an application lodged with the Commissioner for Social Housing to be assessed for social housing in her own right. The fixed term tenancy, with the 30 day no cause termination clause, allows the tenant to remain in the premises short term while the application is being assessed and more suitable Annexure Accommodation is located.

Part F(c) stated: It is expected that the lessor will only invoke the 30 day termination clause proposed if the tenant is assessed as eligible for housing assistance (in which case the tenant and the lessor will enter into a periodic tenancy for another premises) or if the tenant is assessed as not eligible because she does not meet the income thresholds, and can instead afford to rent on the private rental market.

The application was considered in chambers on 8 April 2021 and listed for short telephone hearing on 22 April to discuss enforceability of the proposed clause. Parties were directed to provide their telephone numbers for the hearing. A copy of those orders was posted to the tenant and emailed to CSH.

On 22 April 2021 the Original Tribunal had a telephone number for the tenant, and so telephoned the tenant and left a voice message that "an application for endorsement of a term in your residential tenancy agreement has been adjourned. There's no need for you to do anything, but we will send you a notice, and if you have any questions, you should contact your housing manager". The Original Tribunal adjourned the matter to 27 May 2021 for in chambers consideration, the tenant and CSH were sent copies of those orders and advised by covering letter that their participation was not required. The tenants copy of those orders was returned to sender on 7 May 2021. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH and to the tenant.

The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.

Tenant 202157 did not contact the Tribunal in the course of the appeal, nor did she participate in the directions hearings or hearing of the appeal.

Residential tenancy agreement was signed on 28 October 2020 and consisted of the following initialled pages:

• Schedule of Tenancy Details
• Initial Rent Table
• Attachment A Standard Residential tenancy terms
• Attachment B - Housing Commissioners Additional Terms
• Attachment C - Rules of the Complex Flat/Townhouse/Aged Persons Unit
• Attachment D - Special Conditions

The agreement indicated it was for a fixed term of just over one month from 28 October 2020 to 30 November 2020.

The Application for Endorsement was also signed on 28 October 2021. Part F was entirely blank.

The application was considered in chambers on 16 April 2021 and listed for further consideration in chambers by the Original Tribunal on 27 May 2021. The tenant was not notified of these listings. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH.

The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.

Tenant 202158 contacted the registry by telephone after receiving notice of the appeal application. She provided her email address and was sent the short email summary of the situation and the contact details for CCL. She did not contact the registry again.

Residential tenancy agreement was signed on 12 August 2020 and consisted of the following initialled pages:

• Schedule of Tenancy Details
• Initial Rent Table
• Attachment A Standard Residential tenancy terms
• Attachment B - Housing Commissioners Additional Terms
• Attachment C - Rules of the complex Flat/Townhouse/Aged Persons Unit
• Attachment D - Special Conditions

The Schedule to the agreement indicated it was for a fixed term from 12 August 2020 to 13 February 2021.

The Application for Endorsement was also signed 12 August 2021. Part F(b) stated: Unsafe for tenant to return home due to ex-partner purposefully driving his vehicle into her carport and fencing. Tenant and her children would be at significant risk staying in this property.

The application was considered in chambers on 16 April 2021 and listed for further consideration in chambers by the Original Tribunal on 27 May 2021. The tenant was not notified of these listings. The orders of 27 May 2021 were sent to CSH and CCL, and not to the tenant. The decision of 6 October 2021 was that day sent to CSH and the tenant.

The appeal was lodged on 3 November 2021. On 5 November 2021 the CSH and tenant were emailed a Notice of Listing for a directions hearing to be conducted 22 November 2021.

Tenant 202159 responded to email service of the appeal application by email as follows: "hello, I am very confused by this entire matter. I have no idea what this is in relation to? On the 11th of October I received a letter in the mail with tribunal outcome details on it stating community law have presented on my behalf. There were two hearing dates in early/mid 2021 about this matter also. I have literally never heard about this before receiving the documents in the mail on October 11th with the outcome. Today I have been emailed about this matter in which I'm responding to that email? I have contacted my housing manager [name] about this matter and she has responded saying that she has no idea what this is about. I have also contact community law about this matter and have had no response from them. Please if someone can provide some clarification around what exactly this is and what it will mean for myself that will be great."

Registry provided the tenant with the short email summary of the situation, attaching a copy of the application for endorsement, and received the following emailed response: "Hello, I did not sign that form? Why is my signature on there? I still have no idea what any of this is about and do not understand it at all. What is this in regards to? Please explain further in everyday language I can understand."

The tenant was referred to CCL and had no further correspondence with the tribunal registry. The tenant did not participate in the directions hearings or hearing of the appeal.

[1] Section 56 of the ACT Civil and Administrative Tribunal Act 2008 provides that the Tribunal may 'by order' hear an application jointly with another application.

[2] Commissioner for Social Housing v Social Housing Tenants [2021] ACAT 95

[3] Paragraph 51 reasons of 6 October 2021

[5] Community Law Reform Committee of the Australian Capital Territory, Private Residential Tenancy Law (Report No 8, 1994)

[6] Mansour v Dangar [2017] ACAT 49 at [22]- [23]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46] to [54]

[7] Eg, Kalil v Bray (1977) 1 NSWLR 256, at 261 per Street CJ (Moffitt P and Glass JA agreeing); Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579

[8] See Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283 at [8] to [11] per Refshauge J; Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [40]

[9] See Annexure A: the circumstances included the death of a relative who was the previous tenant, the tenant's own property having become uninhabitable and the tenant having to relocate urgently, and domestic violence

[10] It might seem overkill to parse section 10(1) in this way, but the tribunal does occasionally receive applications to endorse a term which is not part of the agreement, applications where the agreement is not a residential tenancy agreement, or applications that are not signed by all of the parties to the agreement.

[11] The bifurcate approach dictated by section 10(2) applies later, to the exercise of jurisdiction

[13] The original 14 applications lodged by the CSH were caught up in the processing of a backlog of endorsement applications that arose during COVID-19.

[16] Applicant's Submissions dated 11 April 2022

[17] CSH indicated in its submissions that many of the tenancies had ended, but the appeal was continued due to the important legal issues contained therein.

[18] The existence of a power imbalance does not mean that the power has been misused.

[21] Macquarie Dictionary (7th ed, 2017) 'inconsistent'

[22] Miller v Miller [1978] HCA 44 at [11]

[23] Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2

[24] Australian Capital Territory (Self-Government) Act 1988 (Cth), section 28

[25] This is because section 28 of the Self-Government Act expressly incorporates the concept of concurrent operation which is not included in section 10.

[26] Victoria v The Commonwealth [1937] HCA 82

[27] R v Momcilovic [2010] VSCA 50

[28] Miller v Miller [1978] HCA 44; (1978) 141 CLR 269

[29] Australian Boot Trade Employees Federation v Whybrow & Co (Bootmakers Case (No 1)) [1910] HCA 8; (1910) 10 CLR 266; R v Licensing Court of Brisbane; Ex parte Daniell [1920] HCA 24

[30] Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253

[31] Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 per Gageler at 83-85

[32] Metal Trades Industry Association v Amalgated Metal Workers and Shipwrights Union [1983] HCA 28; (1983) 152 CLR 632

[33] Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 at 483

[34] E.g. prohibitions on occupancy of affected premises under Part 3A.3 of the Dangerous Substances Act 2004;

[35] Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 at [33] per Kiefel CJ Bell J Keane J Nettle J Gordon J; citing Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 at 483; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508 at 524 [40]; see also The Commonwealth of Australia v The Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55

[36] There is currently no prescribed form for the notice to vacate

[37] Which form part of the RT Act pursuant to section 126(5) of the Legislation Act 2001

[38] Devenport v Commissioner for Housing in the ACT and Residential Tenancies Tribunal [2007] ACTSC 30

[39] such as the power to suspend an order for a specified period.

[40] As has occurred with termination in relation to personal protection orders, premises affected by asbestos, leaving co-tenants.

[41] For example, under this interpretation the tribunal cannot make a termination and possession order simply by consent of the parties, unless the preconditions for that order as required by other provisions of the RT Act are established.

[42] This segues into the issue of what an additional term means - as pointed out below it is the objective rather than the subjective interpretation of the term which must be adopted.

[43] Residential Tenancies (Criteria) Determination 1998 DI1998-82

[44] ACT Civil and Administrative Tribunal Act 2008, as amended by ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (No 2).

[45] Also included in the instruments repealed was the determination of the prescribed form for a termination notice AF2002-87

[46] Downey v Pryor [1960] HCA 49

[47] We were referred to the second reading speeches which showed that some care was taken in the choice of these words.

[48] Minister for Aboriginal affairs v Peko-Wallsend Ltd (1986) 12 CLR 24

[49] see Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at [4] per Mason and Deane JJ

[50] R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49-50; adopting Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 757-8 and Water Conservation and Irrigation Commissioner (NSW) v Browning (1947) 74 CLR 492 at 505; also Minister for Aboriginal affairs v Peko-Wallsend Ltd (1986) 12 CLR 24; 66 ALR 299 per Mason J.

[51] It is appropriate that this Appeal Tribunal set out principles that, while not binding, might assist consistent and predictable decision making within the Tribunal. See Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 519 per Deane and Mason JJ, also 536-7 per Brennan CJ.

[55] Kalil v Bray (1977) 1 NSWLR 256, at 261 per Street CJ

[56] https://www.communityservices.act.gov.au/hcs/about-housing-act

[57]The wait list in publically available at https://www.communityservices.act.gov.au/hcs/services/social\_housing/waiting\_lists; it shows waiting lines of nearly a year for even priority housing, the most urgent category.

[58] Sometimes an endorsement application form may contain a hint that the lessor and tenant have discussed how the additional term will operate, and sometimes this is in a way which is not apparent on the face of the additional term. In such a situation, the application will be referred to a hearing and the parties requested to provide the necessary information.

[60] Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68; Nursing and Midwifery Board of Australia v Oakleigh [2015] ACAT 83