Harrison v Kaye (No 2)

In the meantime, the respondent to the appeal, Mr Kaye, has had the proceedings relisted to seek an order pursuant to r 5052 of the Court Procedures Rules 2006 (ACT) remitting the proceedings to the ACAT. That application is made in the context that Mr Kaye now concedes, as apprehended by Mossop J when his Honour granted leave to appeal, that the orders made by the Appeal Tribunal should not have been made in Ms Harrison's absence.

The appeal being conceded, the only remaining issue in the proceedings is whether the matter should be remitted to the Tribunal or, alternatively, whether the appeal should be determined by this Court exercising its powers under r 5052. Rule 5202(1)(a) provides: For an appeal to the Supreme Court, the court has all the powers and duties of the court or tribunal that made the order appealed from.

In other words, to adopt the vernacular, in determining an appeal, this Court stands in the shoes of the Tribunal appealed from. It would appear on the proper construction of that rule that this Court could, in a proper case, exercise the powers of the Appeal Tribunal rather than remitting a case to the Tribunal.

Conversely, the Court has power under r 5052(1)(d) to remit the matter to the Tribunal in accordance with any direction the Court considers appropriate. In the case of a specialist tribunal such as the ACAT, which has extensive experience in dealing with residential disputes, and noting that this Court would ordinarily confine its attention to questions of law (although it does have power to determine questions of fact), the usual course would be to remit a matter to the Appeal Tribunal rather than for this Court to immerse itself in the kind of factual disputes identified by Ms Harrison.

Ms Harrison opposes the matter being remitted to the ACAT for two principal reasons. First, she submits that, having regard to her experience in the ACAT, she considers that there is a chance that the Tribunal will again fall into error of law. Secondly, she noted that this Court has jurisdiction to determine the matters raised by her appeal. As already explained, I accept that this Court has jurisdiction, whilst also noting that it would not ordinarily exercise that jurisdiction without there being good reason. That there is a chance that the tribunal might again commit an error of law finds no support in the fact that leave was granted. That is because Mossop J has set out, in his Honour’s customary careful way, the failings of the Tribunal in making the decision appealed from. It may be assumed that the Tribunal to which the matter is remitted, if it is to be remitted, would consider the content of his Honour's judgment and not fall into the same error again.

At the hearing of the application this morning, I heard from Ms Harrison by telephone. I explained that, if I were to entertain the prospect of preserving the hearing date on 5 August for the purpose of determining a conceded appeal only so that this court can determine the substantive application rather than remitting it to the Appeal Tribunal, I would want to be assured that there was no prejudice to Mr Kaye. On that topic, I note that Mr Kaye has affirmed an affidavit in support of his application to have the proceedings remitted in which he has set out, amongst other things, the fact that Ms Harrison has paid no rent since a payment made on 5 March 2026, which took her rental payments up to 13 February 2026. He has annexed to his affidavit a copy of the rental ledger which confirms that evidence. His affidavit is dated 15 June 2026.

I pressed Ms Harrison as to whether she had paid any rent since 5 March 2026. She claimed that she had. Upon my indicating that I would need to see evidence of that, she stated that she would need a week to provide that evidence. Upon my pressing her as to why she would need a week to provide evidence of payments for a period of some three months, she complained that I had not afforded her procedural fairness. Upon my reminding her that I had heard her and was affording her a further opportunity to address me on any matter she wished to address me, she hung up.

In all the circumstances, I am satisfied that it is appropriate, the appeal being conceded, to set aside the orders of the Appeal Tribunal and remit the matter to the ACAT for determination according to law. However, noting the exchange I had with Ms Harrison, I consider it appropriate to give her a short opportunity to provide evidence that she has indeed paid some rent since 5 March 2026. I should note that Ms Harrison argued that she is entitled to rental reduction for various reasons. The Appeal Tribunal’s failure to determine those claims is part of her grievance and her reason for wishing to have the matter remain in this court. Even so, as she frankly accepted, it could not be expected that she should remain in the premises rent free.

Accordingly, unless evidence is provided by Ms Harrison of her having paid at least some rent since 5 March 2026, I would consider that the prejudice to the landlord in not receiving any rent is a compelling reason to remit the matter to the Appeal Tribunal now rather than to allow the matter to abide the period of almost two months until the listing of the appeal. If Ms Harrison were to bring the rent up to date, that is, up to the date of the hearing of the appeal, 5 August 2026, the position might be different.