Supreme Court of the ACT|2013-06-26|Before: Commissioner For

Faull v Commissioner for Social Housing for the ACT and Residential Tenancies Tribunal; Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121 (26 June 2013)

NORMAN FAULL V COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT AND RESIDENTIAL TENANCIES TRIBUNAL

NORMAN FAULL V COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT

LANDLORD AND TENANT - Termination of the Tenancy - leave to appeal under s 125 of the Residential Tenancies Act 1997 (ACT) - leave granted

APPEAL - General Principles - In General and Right of Appeal - appeals on questions of law - principles determining the scope and consideration of an appeal on questions of law

APPEAL - General Principles - In General and Right of Appeal - appeals on questions of law - requirement for clear identification of questions of law

ADMINISTRATIVE LAW - Prerogative Writs and Orders - writ of certiorari - availability of, under s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) - common law power to issue orders in the nature of certiorari available and entrenched

LANDLORD AND TENANT - Termination of the Tenancy - termination under s 51 of the Residential Tenancies Act 1997 (ACT) - meaning of that section - differences between s 51 and other termination provisions - requirement of intention or recklessness - meaning of 'injury' for s51(c)

ADMINISTRATIVE LAW - Particular Tribunals or Bodies - Residential Tenancies Tribunal - jurisdictional facts required for termination of tenancy under s 51 of the Residential Tenancies Act 1997 (ACT) - failure to apply the statutory test of intention or recklessness - failure apparent from statement of reasons - jurisdictional error made - decision set aside

ADMINISTRATIVE LAW - general principles - content and identification of jurisdictional facts and error - particular requirements for considering the actions of a tribunal

ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT)

Residential Tenancies Act 1997 (ACT), ss 8, 36, 47-52, 106, 125, Sch 1

Court Procedures Rules 2006 (ACT), rr 3553-4, 5052(1)(d)(i)

Community Law Reform Committee, Private Residential Tenancy Law, Report No 8 (1994)

Explanatory Memorandum, Residential Tenancies Bill 1997 (ACT)

Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 4th ed, 2009), 826-831

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Avery v Registrar of Births, Deaths and Marriages [2010] NSWCA 72; (2010) 79 NSWLR 354

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481

Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 38 AAR 55

Bisley Investments Corp v Australian Broadcasting Tribunal (1982) 59 FLR 132

Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302

BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246

CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Collector of Customs v Pozzolanic (1993) 43 FCR 280

Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407

Comcare Australia v Lees [1997] FCA 1415; (1997) 151 ALR 647

Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522

Commissioner for Housing v Key [2004] ACTCA 17

Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Crook v Consumers, Trade and Tenancy Tribunal of New South Wales [2003] NSWCA 370; (2003) 59 NSWLR 300

Cutter v The Queen [1997] HCA 7; (1997) 94 A Crim R 152

Department of Housing v Crook [2003] NSWCTTT 268

Department of Housing v Johnstone [2001] NSWRT 85

Devenport v Commissioner for Housing in the ACT [2007] ACTSC 30

Eastman v Commissioner for Housing in the ACT [2006] ACTSC 52; (2006) 200 FLR 272

Eastman v Commissioner for Housing in the ACT [2008] ACTSC 1

Eastman v Commissioner for Social Housing (2011) 252 FCR 278

Edgley v Federal Capital Press of Australia Pty Ltd [1999] ACTSC 95; (1999) 139 ACTR 1

Federal Commissioner of Taxation v Cainero (1988) 19 ATC 1301

Federal Commissioner of Taxation v La Rosa [2002] FCA 1036; (2002) 196 ALR 139

Ferriday v Repatriation Commission (1996) 69 FCR 521

GPT Re Ltd v Belmorgan Property Developments Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647

HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

Hill v King (1993) 31 NSWLR 654

Hope v Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1

John Flynn Community Group Inc v ACT Heritage Council (2012) 6 ACTLR 266

Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 54 FLR 334

MacIntosh v Lobel (1993) 30 NSWLR 441

Marku v Republic of Albania (2012) 293 ALR 301

Meagher v Stephenson (1993) 30 NSWLR 736

Minister for Immigration and Ethnic Affairs v Wu Shan Ling [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383

Muralidharan v Minister for Immigration and Ethnic Affairs [1996] FCA 1342; (1996) 62 FCR 402

Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48

Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431

North Broken Hill Ltd v Tumes [1999] NSWCA 309; (1999) 18 NSWCCR 412

NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509

NSW Land & Housing Corporation v Bullmann [2006] NSWSC 733

NSW Land & Housing Corporation v El Masri [2005] NSWCTTT 702

Osland v Secretary, Department of Justice [No 2][2010] HCA 24; (2010) 241 CLR 320

O'Sullivan v Watson (1986) 7 NSWLR 693

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301; (1987) 16 FCR 465

Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1

Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80; (2011) 55 AAR 300

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212

Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331

Shalom v Health Services Commission [2009] VSC 514

Sobania v Nitsche (1969) 16 FLR 329

TNT Skypak International (Australia) Pty Ltd v Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175

Vetter v Lake Macquarie City Council (2001) 202 CLR 439

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73

Wade v Wynants [2008] ACTSC 6

Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253

Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278

AND: COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT

1. Leave to appeal against the decision of the Residential Tenancies Tribunal on 12 October 2008 be granted.

2. The appeal against the decision of the Residential Tenancies Tribunal on 12 October 2008 be upheld and the decision be set aside.

4. The parties be heard as to any other orders to be made.

AND: COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT

1. The application for an order in the nature and to the effect of certiorari be dismissed.

2. The plaintiff pay the first defendant's costs excluding any costs of any of the appearances in court in respect of the application.

1. Under the Residential Tenancies Act 1997 (ACT) (the RT Act), a residential tenancy cannot be terminated by the landlord before the term of the tenancy ends without an order of a tribunal, unless there is agreement or abandonment by the tenant: s 36 of the RT Act. Prior to 2009, the relevant tribunal was the Residential Tenancies Tribunal; after that it was the ACT Civil and Administrative Tribunal: See ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT).

2. On 12 October 2008, the Residential Tenancies Tribunal (the RT Tribunal), made an order terminating the tenancy that the plaintiff, Mr Norman Faull, had with the defendant, the Commissioner for Social Housing of the ACT (which was established under s 9 of the Housing Assistance Act 2007 (ACT)) and requiring him to vacate the premises, in default of which the Registrar of the RT Tribunal was ordered to issue a warrant of eviction.

3. Mr Faull has now commenced two proceedings in this Court, challenging these orders. The first proceeding is an application for leave to appeal under s 125 of the RT Act (as it was at the time of the decision of the RT Tribunal). Such an appeal may only be taken on a question of law. The second proceeding is an application for judicial review, seeking prerogative relief in the nature of a writ of certiorari to quash the orders of the RT Tribunal.

4. On 14 October 2008, two days after the RT Tribunal's decision was made, Mr Faull, through his lawyers, the Welfare Rights and Legal Centre Ltd, sought a stay of the RT Tribunal's order. I made an interim stay order on that day.

5. The next day, I dismissed the application for a stay, noting that arrangements had been made for short-term accommodation for Mr Faull and that he would have until at least the end of the week before eviction action would be taken.

6. On 17 October 2008, Higgins CJ declared that the stay imposed on 14 October 2008 had been dissolved.

7. On 10 November 2008, Mr Faull applied for leave to appeal against the orders of the RT Tribunal. That application came before Gray J on 9 December 2008. His Honour then gave leave for the draft Notice of Appeal to be amended and, in effect, directed that the application for leave be heard as on the appeal. That is to say, the parties were invited to present as full an argument as would be put on the hearing of an appeal so that the appeal could be determined at the same time if leave were granted. See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at 16. Appropriate directions were given to effect that.

8. On 13 November 2008, Mr Faull sought judicial review of the RT Tribunal's decision. Mr Faull's Originating Application sought an order in the nature of a writ of certiorari to quash the orders of the RT Tribunal and a declaration that, in making those orders, the RT Tribunal had exceeded its jurisdiction. The application was supported by an affidavit by Jaleh Johannessen made the same day.

9. The application for leave to appeal came on for hearing before me on 1 April 2009. It was agreed by the parties, and I accepted, that the hearing of the application for leave should be heard in such a way so as to enable the Court to determine the appeal if leave were granted.

10. As agreed by the parties also, I heard the judicial review application concurrently. On 2 April 2009, I reserved my decision.

11. A number of matters, such as dates, seem to be inaccurate in the documentation of the RT Tribunal such as in its reasons and in the statement of particulars of the applicant. Where source documents are inconsistent with the former documents, I prefer, for the purpose of these reasons, the latter.

12. While perhaps of no great consequence, such errors are somewhat troubling and do suggest a lack of attention to detail, which affects how I should address the subject matter of these proceedings.

13. For example, the reasons of the RT Tribunal refer, as do the applicant's statement of particulars (from which the RT Tribunal may have taken that fact), to the tenancy as having commenced on 12 January 2007 (though the RT Tribunal says 2006), whereas the "Sign-Up Appointment" sheet addressed to Mr Faull refers to the fact that the Tenancy Agreement is to be signed on 15 January 2007 and the Tenancy Agreement itself is dated 15 January 2007; it also expressly states that the tenancy is to start on 15 January 2007.

14. Accordingly, I find that on 15 January 2007, Mr Faull, having signed a Tenancy Agreement on that date, became a tenant of the Commissioner for Social Housing of the ACT (the Commissioner) in what is commonly called public housing. He was granted a tenancy of a unit in Gordon in a housing complex where there are a number of units. Most of the tenants of the other units are elderly.

15. The Tenancy Agreement included, of course, the standard residential terms set out in Sch 1 of the RT Act (as required by s 8(1) of that Act) which are, by that section's operation, included in all residential tenancy agreements. These included cl 70 as follows:

70. 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 interests in the premises; or

(b) cause or permit nuisance; or

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

16. There is also, in the standard tenancy terms of all Tenancy Agreements, a requirement for the tenant to be responsible for visitors or guests. This is set out in cl 73 as follows:

The tenant is personally responsible for the actions or omissions of visitors, guests or other people on the premises if:

(a) the action or omission would if performed by the tenant have constituted a breach of this tenancy agreement; and

(b) the person is on the premises with the permission of the tenant.

17. As for termination other than for the non-payment of rent, standard term cl 93, also included in the Tenancy Agreement, is as follows:

The tribunal may order the termination of the tenancy and eviction of the tenant on the ground of breach of the tenancy agreement in the following circumstances:

(a) the lessor must serve a written notice requiring the tenant within 2 weeks after the day of service to remedy the breach if it is capable of remedy;

(b) if the breach is not remedied within 2 weeks after the day of service or if the breach is not capable of remedy - the lessor must give a notice to vacate the premises within 2 weeks after the date of service of the notice to vacate;

(c) if the tenant does not vacate the premises within the period of 2 weeks after the date of service of a notice to vacate - the lessor may apply to the tribunal for an order terminating the tenancy and for the eviction of the tenant;

(d) if the tenant breaches the terms of the tenancy on 3 occasions on any ground - on the 3rd occasion the lessor may serve a notice to vacate and need not give the tenant 2 weeks to remedy the breach.

18. In addition, particularly relevant to these proceedings, s 51 of the RT Act relevantly provided for termination by order of the RT Tribunal in certain circumstances, such as follows:

On application by a lessor, the tribunal may make a termination and possession order effective immediately if satisfied that the tenant has intentionally or recklessly caused or allowed, or is likely to cause or allow -

...

(c) if the lessor is a corporation - injury to a representative of the corporation or a member of a representative's family; or

(d) serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises.

19. Paragraph (c) is relevant because s 9(2) of the Housing Assistance Act provides that the Commissioner, Mr Faull's lessor, is a corporation.

20. Complaints were received from time to time from other nearby tenants about the conduct of Mr Faull. The first letter of complaint in the Appeal Book is dated 7 January 2007 but, as that is prior to Mr Faull's tenancy, I assume it was an error and that it was probably written on 7 February 2007. This is reinforced because the applicant's statement of particulars alleges that it was received on 9 February 2007. Other complaints were received in February and March. They raised complaints about his conduct, especially when intoxicated, of inappropriate behaviour with neighbours, abuse, name calling and offensive language, loud offensive music, constant drunkenness and swinging of bats and sticks by him.

21. On 23 March 2007, a notice was served under cl 93 of the Tenancy Agreement requiring Mr Faull to remedy his behaviour. Further notices were served on 1 May 2007 and 30 August 2007.

22. On 29 November 2007, a Notice to Vacate was signed by a delegate for the Commissioner and issued to Mr Faull.

23. Curiously, the affidavit of service of the notice deposes that this Notice to Vacate was served on 27 November 2007 at 12:00 o'clock. Of course, there cannot be service of a notice that had not then been made. This is another of the errors to which I earlier referred.

24. The Commissioner then applied to the RT Tribunal by application dated 16 September 2008 for termination of the Tenancy Agreement and for a "termination and possession order to have effect as a warrant." The delay in making the application was not explained, though, for reasons referred to below, the Notice to Vacate was not directly relevant to the application.

25. The statement of particulars accompanying the application specified that the application was made under s 51(c) and (d) of the RT Act. It set out a series of complaints received by the Commissioner. They may be summarised as follows:

9 February 2007 - Mr Faull was alleged to have made inappropriate contact with a female tenant when he was drunk.

21 February 2007 - Mr Faull was alleged to have been harassing female tenants who lived on their own including standing in front of his door yelling abuse at other tenants.

20 March 2007 - Mr Faull was alleged to have shouted abuse, threatened to attack the complainant, used offensive language, played loud offensive music and swung bats and sticks.

22 March 2007 - Mr Faull was alleged to have shouted and screamed at "all hours of the day and night", threatening other residents.

23 March 2007 - Mr Faull was alleged to have acted in an offensive and inappropriate verbal and physical manner.

26 March 2007 - Mr Faull was alleged to have threatened to kill all the cats in the complex, and had been "yelling and shouting" in a manner that was very distressing to the complainant.

23 April 2007 - Mr Faull was alleged to have had visitors who did "burnouts" in their cars at the complex and spun the wheels of their cars when driving in the area of the complex. Mr Faull was also alleged to have knocked on doors of residents in the complex asking for money. These activities were said to have disturbed the sleep of residents on the weekend.

7 August 2007 - An officer of the Commissioner visited the complex and recorded that she saw two people who appeared to be drunk, arguing on the road and common areas near Mr Faull's unit and that one of them then entered Mr Faull's unit. Mr Faull spoke to the officer and his speech was slurred and his voice raised and, though not aggressive, he appeared to be drunk.

24 August 2007 - The same officer again visited the complex and saw the same two persons were walking through the complex yelling and one, a male, was swearing loudly. The other, a female, appeared distressed. The officer was told by other residents that this behaviour by visitors to Mr Faull's unit was constant and that they were fearful for their safety.

24 October 2007 - Mr Faull was alleged to have entertained visitors and he and his visitors were screaming, yelling and slamming doors. This had caused visitors to the complainant's unit to leave when this behaviour starts.

29 November 2007 - An officer of the Commissioner met with residents of the complex who complained of loud music from Mr Faull's unit at all hours of the day and night, of swearing and yelling heard from the unit, of alleged use of the unit to sell drugs with a large number of cars daily visiting the property and police attendance "continually" at the property as a result, and of Mr Faull and his visitors routinely abusing neighbours. Although it was said Mr Faull swears, he was said to be generally quiet by himself but when he has visitors, which he does "all the time", the disturbances escalate.

18 December 2007 - Mr Faull was alleged to have approached the complainant after dark and made obnoxious comments.

4 March 2008 - Mr Faull was alleged to have left a large dog unattended at the unit after he was taken to hospital by ambulance requiring neighbours to feed the dog.

13 March 2008 - Mr Faull was alleged to have used bad language and made threats of violence including death threats to neighbours. It was said that police had attended on many occasions.

26. The application was listed for directions on 22 September 2008. At that hearing, Mr Faull gave an undertaking to the RT Tribunal "that he would refrain from contact with his neighbours and in particular would avoid any loud, aggressive or abusive behaviour". The RT Tribunal was told by Mr Faull that he was "off the alcohol". As a result, the hearing of the application was adjourned to 1 October 2008 and directions were made for preparation for the hearing.

27. On 30 September 2008, the hearing date was, on Mr Faull's application, vacated and the hearing further adjourned to 8 October 2008. The hearing then proceeded on that date.

28. It proceeded promptly, the RT Tribunal directing that the parties "dispense with opening submissions, et cetera". The Member said that she had "read the file. I have a fair notion of what your argument is. I've seen the faxes that have been exchanged recently and I've had a chance to look through now your letter [from Ms Johannessen, counsel for Mr Faull] dated 7 October". Neither the faxes nor the letter of 7 October were in the Appeal Book. Thus, the issues before the RT Tribunal must be inferred rather than expressly stated by the parties.

29. The RT Tribunal accepted that at issue was s 51(c) and (d) of the RT Act, and, correctly, declined to hear about the notices to remedy and to vacate as "not relevant to these proceedings".

30. Counsel for the Commissioner, Mr G McCarthy (who also appeared in the proceedings before me), tendered the documents attached to the application, being the Tenancy Agreement, the various letters of complaint (most significantly redacted to be in part incomprehensible), records of complaints and diary notes of complaints received and visits to the premises by officers of the Commissioner, communications from Directions ACT, a drug and alcohol rehabilitation agency that had been helping Mr Faull, and, curiously in the light of the RT Tribunal's ruling, the notices to remedy and to vacate.

31. I note that the annexure to the Tenancy Agreement, setting out the standard terms, was only half copied; it was clearly a double-sided document, but only one side had been copied. Mr McCarthy supplied the other pages to the RT Tribunal but, for some reason, these were not included in the Appeal Book. Since these seemed only to contain the standard terms required by the RT Act, it is probably of no prejudice.

32. The first witness called before the RT Tribunal was an officer of the Commissioner, Ms Anna Howell. A statement she had made was tendered. In it, she stated that:

I am aware that a number of Mr Faull's neighbours are very fearful, if not petrified, of him with some of them not leaving their homes because they are scared of him ...

Most of his neighbours are elderly people and are finding it extremely distressing to put up with his behaviour toward them.

33. In her statement, she said that she had visited the complex at least a dozen times and had seen Mr Faull intoxicated on a number of occasions. She said Mr Faull had also made telephone calls to her in which he sounded intoxicated.

34. She recounted an incident on 11 September 2008 when, as she walked past Mr Faull's unit, he "was yelling out and threatening to 'damage' me and other people at the complex". She added later that he was intoxicated at the time. He first shouted "I'm sick of people looking into my property, you better watch out". He then came out and made the threats.

35. As she walked past Mr Faull's unit when returning from the visit she was making, Mr Faull apologised for yelling at her. He did, however, shout at some other residents. Ms Howell then went to visit another resident and left the complex.

36. She said that following the incident she "was extremely distressed and fearful for [her] safety".

37. She also referred to disturbances reported at the complex, some of which she said had been caused by visitors to Mr Faull's property, but most by Mr Faull. She made reference to statements made by Mr Faull to his neighbours that he had a serious criminal history.

38. She expanded on these matters in her oral evidence, but, in the circumstances, I do not need to detail that, as most was not in issue and much not directly relevant to the question in these proceedings.

39. She did recount some serious threats Mr Faull had made, stating that, at the time, he was intoxicated.

40. As to Mr Faull threatening her on 11 September 2008, she said it made her very distressed; she became lachrymose and had been anxious and suffered high stress levels since then. This had, she said, led to her having problems concentrating, losing sleep and having to seek counselling. She said she remains anxious. She has not been permitted to return to the complex, but in any event, would not do so as she was concerned for her safety.

41. She had been referred to Davison Trahaire, the Department's Employee Assistance Provider, "for debriefing and sessions". She said that at the time of giving evidence she was "travelling ... [u]p and down".

42. In cross-examination, Ms Howell agreed that she had made an error in her statement about the number of the unit in which Mr Faull resided.

43. Ms Howell said that, in the twelve visits she had made to the complex, she had at times seen Mr Faull and she could not recall him being aggressive towards her, apart from, obviously, on 11 September 2008. It was also pointed out to her that, despite his shouting at her, she did continue with her visit to another resident; she explained:

I'm a professional and I knew that the neighbour really needed to speak to me and that I needed to conduct that visit.

44. She said she was still scared of Mr Faull and was so even when he apologised to her.

45. She said that she did not visit a general practitioner after the visit and did not obtain "a medical certificate", presumably a certificate for sick leave purposes. There was no evidence that she needed to or did take any time off work. That is, of course, not to say that the incident was not distressing or that it was acceptable behaviour by Mr Faull. Indeed, he acknowledged that it was unacceptable by his apology. The issue is the nature of the effect of the incident on Ms Howell, as will become evidence later in these reasons.

46. Ms Howell was also asked about the circumstances of her walking past Mr Faull's unit. She said she had seen his curtains were tied up high, which she thought was odd. It was suggested that she could see into his property, though she denied that she was inspecting it. The RT Tribunal accepted that Ms Howell glanced at Mr Faull's window and that his yelling was a response to that.

47. Ms Howell was unsure about whether she had even held a conversation with Mr Faull when he was not intoxicated.

48. In re-examination, Ms Howell explained what she did when she first walked past Mr Faull's unit on 11 September 2008. She said she did not stop and look through the window, she:

glanced, saw [Mr Faull] in my peripheral vision, glanced and glanced back and kept walking.

49. A number of other witnesses were called. It is only necessary and appropriate to summarise their evidence as showing:

(a) Mr Faull was often drunk, some said on a daily basis;

(b) he was often aggressive and threatening, especially when "fully drunk", and would make threats and swear;

(d) the swearing probably happened every day when Mr Faull was at home;

(e) sometimes the swearing was directed at individual residents and to their faces;

(f) Mr Faull would sometimes go to residents' homes and bang on their doors; sometimes this would happen on a weekly basis;

(g) the swearing was often angry in tone and abusive; sometimes it was threatening;

(h) the threats made by Mr Faull included threats to kill;

(i) most of the week, Mr Faull would have visitors;

(j) some of the visitors would stay till late at night and cause a disturbance, such as by swearing loudly and playing loud music;

(k) the behaviour of Mr Faull's visitors would interfere with the ability of residents to sleep in their units;

(l) when Mr Faull was not intoxicated, his behaviour was not as bad, but when he was drunk it was pointless trying to communicate with him;

(m) sometimes Mr Faull's visitors would arrive by car, but this was not more than fortnightly and there would be periods of some months when it would not happen; when they did, they would "rev" the cars, making a lot of disturbing noise;

(n) the residents were afraid of Mr Faull and his threats were taken seriously;

(o) sometimes Mr Faull would be violent, smashing doors and smashing lights with a bat;

(p) these activities frightened residents of the complex and made them feel as if they could not live in the units anymore; and

(q) the closest neighbours could not use their backyard because it exposed them and the grandchildren to Mr Faull's inappropriate behaviour.

On cross-examination, the following was also clear:

(i) some of the residents would look into Mr Faull's residence to see what was happening there;

(ii) at least some neighbours thought there was never a time when they saw him that he had not at least had a few drinks;

(iii) no weapons such as knives, guns or swords were seen in the possession of Mr Faull by any neighbour;

(iv) Mr Faull had never physically touched any of the neighbours violently; and

(v) the Commissioner had, when the proceedings in the RT Tribunal were in contemplation, asked residents to keep records of relevant incidents.

50. The general practitioner for one of the residents also gave evidence in which she described the problems for which the resident had consulted her. Fearing for her safety because of problems with "her neighbour", the resident was experiencing anxiety. Her neighbour was never expressly identified as Mr Faull. The doctor prescribed medication, though more recently, the resident had required extra medication to settle her down.

51. Mr Faull gave evidence. He explained that when he moved into the complex his relations with neighbours was good; he "got on really well with them". He said that things changed when his daughter and "a mate" came as they were "a bit loud".

Faull v Commissioner for Social Housing for the ACT and Residential Tenancies Tribunal; Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121

At a glance

Court

Decision date

Before

Source

Judgment (433 paragraphs)

Faull v Commissioner for Social Housing for the ACT and Residential Tenancies Tribunal; Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121 (26 June 2013)

Legislation Cited (18)

Cases Cited (62)