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1. This is an application for leave to appeal from a decision of the appeal tribunal of the ACT Civil and Administrative Tribunal (ACAT) (Appeal Tribunal). The proceedings relate to a residential tenancy governed by the Residential Tenancies Act 1997 (ACT) (RT Act). The applicant is the tenant and the respondent is the lessor. Both tenant and lessor are unrepresented.

2. Under s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), leave is required for any appeal to the Supreme Court. An appeal may be on a question of fact or a question of law.

Lack of material before the court

3. Both parties being unrepresented, the material put before the court for the purposes of the application for leave to appeal was completely inadequate. The application made to the ACAT and its supporting evidence were not before the court. The documents initiating or filed in the internal appeal proceedings in the ACAT were not before the court. However, a transcript of the proceedings before the ACAT at first instance (Original Tribunal) was before the court.

Subpoena to the ACAT

4. Because of the inadequacy of the material put before the court, I permitted the tenant, the applicant for leave to appeal, to issue a subpoena to the ACAT to obtain the material relevant to the internal appeal. Unfortunately, the response to that subpoena involved non-compliance with an order of the Supreme Court and reflected either a misunderstanding of the obligations of the ACAT in response to a subpoena or, alternatively, a casual attitude to non-compliance where the subpoena was issued at the request of an unrepresented person.

5. The one document that was produced in response to the subpoena was a transcript of the proceedings before the Appeal Tribunal. That was sufficient in the circumstances to allow the application for leave to appeal to be dealt with.

6. So far as the failure of the ACAT to comply with the terms of the subpoena, that is something which I will, in due course, refer to the Registrar to address. Chronology

7. Given the inadequacy of the material that has been put before the court, it is worth setting out the chronology of events that is discernible from the very limited material that is available so as to provide some background to the issues arising on the application for leave to appeal.

8. The residential tenancy agreement commenced on 20 September 2025. It provided for rent of $1100 per fortnight and a bond of $2200.

9. On 7 November 2025, a notice to remedy was served on the tenant by the lessor.

10. On 16 December 2025, a notice to vacate was served on the tenant by the lessor.

11. On 16 December 2025, the tenant emailed the lessor’s real estate agent about dishwasher repair and stated that she would not vacate the property and would be paying all rent in January 2026.

12. On 17 December 2025, another notice to remedy was sent in relation to damage to property.

13. On 14 January 2026, the hearing before the Original Tribunal was held. There was no appearance for the tenant. The lessor appeared with two real estate agents. Presidential Member Warwick recorded that she had read the file. The real estate agent identified rent outstanding as at that date of $2121.43. The Original Tribunal made a termination and possession order, which was suspended until 28 January 2026.

14. On 22 January 2026, the tenant sent an email to the ACAT indicating that all rent had been paid up to 22 January 2026.

15. On 28 January 2026, President Daniel made orders in the internal appeal matter AA 9/2026 staying the Original Tribunal’s decision, requiring a transcript to be obtained and written submissions filed in relation to the internal appeal, and listing the internal appeal for hearing on 20 February 2026. President Daniel also ordered that the appeal would proceed by way of review of the original decision pursuant to s 82(1)(b) of the ACAT Act “unless the Appeal Tribunal orders otherwise”.

16. On 20 February 2026, the Appeal Tribunal hearing was held. The Appeal Tribunal made orders refusing removal or referral to the Supreme Court, dismissing the appeal, and staying the orders of the Original Tribunal until 4pm on 23 February 2026.

17. On 23 February 2026, the tenant commenced proceedings SC 79 of 2026 in the Supreme Court. Taylor J directed that the tenant file and serve material relating to her application on the lessor prior to 25 February 2026. The ACAT’s stay of its own orders was continued until that date. The matter was relisted on 25 February 2026.

18. On 25 February 2026, the proceedings SC 79 of 2026 were before Taylor J. Her Honour again directed that the lessor be served and continued the stay of the ACAT’s orders until 2 March 2026.

19. On 26 February 2026, the tenant commenced proceedings SCA 4 of 2026, seeking leave to appeal from the decision of the Appeal Tribunal.

20. On 2 March 2026, both proceedings were listed before me. I made directions for the parties to file submissions and listed the hearing of the application for leave to appeal for 10 March 2026. The temporary stay was continued until 10 March 2026.

21. On 10 March 2026, the application for leave to appeal was heard in this court. The temporary stay was continued until further order. The tenant was given leave to have a subpoena issued to the ACAT returnable on 16 March 2026. This is the subpoena referred to earlier.

Proposed grounds of appeal

22. The draft notice of appeal identified 27 grounds of appeal, each the subject of a narrative description in a paragraph of text. The grounds of appeal extended over 11 pages of single-spaced text. It goes without saying that a notice of appeal drafted in this manner is unhelpful.

23. The principal contentions agitated by the tenant appear to be: (a) She was only somewhat more than one week’s rent in arrears, and this was insufficient to satisfy the requirement that she be 14 days in arrears. There was therefore no legal authority to issue a notice to vacate. (b) She had an intention to remedy the shortfall of rent which arose from temporary financial difficulties. (c) Repairs to her bathroom had not been attended to. (d) Repairs to a dishwasher had not been attended to. (e) She had been unable to access the storage shed for the unit. (f) She was denied procedural fairness because she had not been given notice of the application to the ACAT or the ACAT hearing conducted on 14 January 2026. Number of days in arrears

24. The tenant submitted that it was only if there were 14 days of arrears that a notice to vacate could validly be issued. No particular statutory provision was pointed to which would support this contention.

25. Clause 92 of the standard residential tenancy terms in Sch 1 of the RT Act permits the ACAT to order termination of a tenancy and eviction of a tenant in certain circumstances. It requires that rent has been unpaid for one week, the lessor has served a notice to remedy on the tenant, and all rent has not been paid within a week of the service of the notice to remedy. The lessor is then entitled to serve a notice requiring the tenant to vacate the premises within two weeks of the service of the notice to vacate. The lessor may then apply to the ACAT for an order determining the tenancy and evicting the tenant.

26. Section 49 of the RT Act permits the lessor to apply for a termination and possession order if there is a failure to vacate in accordance with a termination notice, which includes a notice to vacate: cl 6 of the standard residential tenancy terms. The ACAT may make a termination and possession order, make a payment order or refuse to make a termination and possession order. It may only refuse to make a termination and possession order if: (a) the tenant has paid any rent that has become payable and, in the ACAT’s opinion, it is reasonably likely that the tenant will pay future rent as it becomes payable; and (b) the ACAT considers that it is just and appropriate to do so.

27. There is no requirement that the tenant be 14 days in arrears. This ground lacks sufficient merit to warrant a grant of leave to appeal.

Failure to address the case put by the tenant

28. This ground advanced by the tenant was articulated as a failure to accord procedural fairness. For the reasons which follow, I consider that it is better articulated as a failure by the Appeal Tribunal to address the case put by the tenant on the internal appeal.

29. The evidence put before the court for the purposes of the application for leave to appeal is completely inadequate to demonstrate whether or not the tenant was served with the ACAT application. The transcript of the proceedings before the Original Tribunal does not record any enquiry by the ACAT as to service. It appears, however, that there was an ACAT file which may have disclosed service. The transcript does not record any finding by the ACAT as to whether or not the tenant had been served. Any evidence put before the ACAT or present upon the ACAT file was not put before the court.

30. Similarly, as I will explain in more detail later in these reasons, the Appeal Tribunal proceeded on the basis that the ACAT application was served in accordance with the ACT Civil and Administrative Tribunal Procedure Rules 2024 (ACT) (ACAT rules). No finding was made about when the hearing actually came to the notice of the tenant.

31. In her affidavit filed in support of the application for leave to appeal, the tenant deposed to the fact that she only became aware of the ACAT hearing on 16 January 2026 and that she had not received the service copy of the application because it was posted to a mailbox that she had never used. She also deposed to the fact that she had been communicating with the lessor’s real estate agent within a day or two of the 14 January 2026 hearing but had not been told about the lessor’s application or the hearing.

32. In any event, there is no doubt that the applicant invoked the internal appeal process. That had the potential to remedy any denial of procedural fairness in relation to the Original Tribunal hearing.

33. The essential point made by the tenant was that she had not received notice of the application or the hearing and was unable to respond to the application. The answer to that proposition, articulated by the Acting Presidential Member in the Appeal Tribunal, was that she had been served with the application in accordance with rr 20 and 29 of the ACAT Rules, which permitted service upon her by post at her residential address.

34. The tenant said that, had she been given notice of the hearing, she would have done what she did upon being told about the ex parte hearing that had already occurred, namely, pay the amount of the arrears in full: see pages 18-20 of the transcript of the hearing before the Appeal Tribunal (Transcript). She would then have been in a position to make a submission that she had paid the rent and attempt to convince the ACAT that she was reasonably likely to pay future rent as it became payable or, alternatively, seek that the ACAT make a payment order under s 49.

35. The material put before the Appeal Tribunal appeared to include evidence that she had in fact made payment of the rental arrears very shortly after she received notice of the orders of the Original Tribunal which were sent to her by email.

36. The effect of her submission was that in circumstances where she did not in fact receive any notice of the hearing before the Original Tribunal, she was denied the opportunity to put material before the Original Tribunal which might have persuaded it to make a different order. She also sought to deploy, as part of that exercise, her complaints about the alleged prior conduct of the lessor and his agent in failing to remedy a defective dishwasher and failing to tell her of the upcoming hearing even though there were communications with her in the relevant period.

37. The approach taken by the Appeal Tribunal was to focus only upon whether or not there was an error on the part of the Original Tribunal in making the orders in circumstances where there was an unremedied failure to pay rent and no argument put on behalf of the tenant who had been served with the application and listing notice in accordance with the relevant rules.

38. At page 14 of the Transcript, the Acting Presidential Member said: The question before the appeal is, as the orders on … 28 January indicate that the appeal will proceed by way of review of the original decision. So we’re looking to establish if there are any errors made by the Presidential Member when they made their orders on … 14 January terminating them and the residential tenancy agreement and providing for payment of rental arrears and transfer of the bond.

39. The Appeal Tribunal therefore excluded from consideration the substance of the case which the tenant sought to make, namely, that she did not in fact become aware of the ACAT proceedings until after the orders were made and that if she had notice she would have had a course of conduct and arguments reasonably available to her. This was clearly articulated by the tenant (Transcript, pages 18-19): That I at the time I was in temporary financial hardship. I proposed before I was served a copy allegedly the termination notice and all funds to the respondent with regards to a temporary financial instalment plan that the payments to get the rent up to date. Between that time and today’s date the full amount of arrears has been cleared and is the completely different situation as to what it was at the time that the application was filed by the respondent. In which case didn’t come to my attention until 16 January. When it did come to my attention, I sought to clear the arrears in full which is what I would have done previously. And it’s now a very different situation. The respondent is unable to rely on rental arrears being the main issue of this matter as a reason for termination of the tenancy. So there is a significant issue with respect to there being nil rental arrears which forms part of the defective notice of the application there as well with respect to rental arrears.

40. The Appeal Tribunal appeared to understand the point being made as there was the following exchange shortly after: ACTING PRESIDENTIAL MEMBER: And so you’re suggesting that it would have been open to the tribunal to make a termination and possession order, but you would have been arguing that it’s more appropriate for them to make a payment order to provide for you to pay off the rental arrears in instalments? MS HARRISON: At the time. At the time that may have been suitable, yes. If I had have been served. But the issue is that I haven’t been served and it didn’t come to my attention as the respondent’s agent didn’t make any attempt. It might be an email communication to bring it to my attention in that one month timeframe almost I think, which is a long time.

41. From that point, the Appeal Tribunal focused only on the position that existed at the time of the Original Tribunal decision, saying (Transcript, page 20): But if I accept what you say that subsequently you’ve paid off everything that you owe in terms of rental arrears that doesn’t ameliorate the fact that at the time the notice to vacate was properly issued. And, hence, the tribunal was in a position to consider making a termination and possession order.

42. So far as the complaints about the dishwasher were concerned, the Appeal Tribunal considered those only as relevant to a subsequent claim for compensation which remained available and did not appear to consider that they could be relevant to the exercise of discretion as to whether to make a termination and possession order (Transcript, pages 21-22).

43. The approach of the Appeal Tribunal, in confining its consideration to the state of the evidence at the time of the ex parte hearing, is made clear by a subsequent passage (Transcript, page 22): But that’s a matter for the tribunal to consider at the time on the basis of evidence before it. The tribunal would need to be satisfied that the tenant, yourself, was reasonably likely to make the payments required under the order based on the material available at the time. Given, as you say, you had no idea that the hearing was going ahead the tribunal member wasn’t in error in not being so satisfied.

44. In response to this, it was clear that the tenant was arguing that the decision of the Original Tribunal was procedurally unfair because she did not have the opportunity to make her argument because she had not received the application until after the case was heard. She also raised that her argument against the making of a termination and possession order would be stronger because she had paid all the rent owing and in circumstances where there was a defective appliance and where the lessor’s real estate agent knew of the application and the hearing but failed to disclose that to her so as to permit her to attend.

45. It is clear that the Appeal Tribunal considered that service in accordance with the ACAT Rules ended any question about the fairness of the proceedings before the Original Tribunal and any need to consider the arguments that might have been raised but were not because the tenant was unaware of the hearing. That is consistent with the approach then adopted of expressly declining to make any finding as to whether or not the tenant had subsequently paid off rental arrears because “that doesn’t go to establishing that there was error on the part of Presidential Member Warwick when she made the orders for the termination and possession order” (Transcript, page 23).

46. It is also consistent with the Appeal Tribunal’s approach when the tenant subsequently pointed out that she had paid the rent owing on the property, with the Acting Presidential Member saying: “That’s not a question that is before me today. The question is whether you were in arrears at the time in which the termination and possession order was made and I understand from what you’ve told me that you accept that you were” (Transcript, page 25).

47. The Appeal Tribunal did not call on the lessor to make any submissions.

48. The Appeal Tribunal’s reasons for dismissing the appeal commence at page 27 of the Transcript and continue over four pages.

49. The Appeal Tribunal found the application and the listing notice were properly served on the tenant at her residential address.

50. The Appeal Tribunal made no finding as to whether or not, despite service of the notice in a manner authorised by the ACAT Rules, the tenant actually knew that the hearing was listed prior to it occurring, simply recording, “I understand that you say you never received a copy of that application or listing notice and so, therefore, didn’t know about the hearing at the time in which it was conducted”.

51. In relation to the possibility of an order under s 49(3)(c) of the RT Act refusing to make a termination and possession order or a payment order under s 49A of the RT Act, the Appeal Tribunal said “it was properly before the tribunal to consider making a termination and possession order and on the basis of the material that was available to the tribunal at the time, there was no basis to consider a payment plan. The tribunal not being able to be satisfied that the tenant would be able to – was reasonably likely to make the payments required under the order”.

52. The Appeal Tribunal did consider that evidence of a capacity to pay “may have been relevant and something considered by Presidential Member Warwick, if available at the time, [but] would not necessarily have led to a change in the orders made by Presidential Member Warwick” (emphasis added).

53. Then, indicating the approach taken in the Appeal Tribunal, it continued (Transcript, page 28): In any event, to the extent to which as an appeal body, I’m restricted to looking to errors that are made by Presidential Member Warwick in making her orders. I’m not satisfied that it was in error to make a determination in circumstances where there is the possibility that the respondent may not have received a copy of the application and a possibility that there may have been some form of payment plan entered into.

54. The same approach was taken in relation to the dishwasher (Transcript, page 29): Even if it may have been able to be raised before Presidential Member Warwick that doesn’t necessarily mean that there wasn’t termination and possession order is available at the time.

55. The approach to evidentiary matters arising on the appeal was articulated by the Appeal Tribunal as follows: In my view, Ms Harrison to the extent to which she has raised additional material that she wants to put before the tribunal and which was referred to in material provided to the tribunal in relation to seeking a referral to the ACT Supreme Court, in my view, that material was not relevant to the issues before the appeal today and hence would not have made a material difference to the decision I make today.

56. At no point did the Appeal Tribunal indicate that it otherwise considered whether or not to grant leave to receive further evidence about questions of fact pursuant to s 82(2) of the ACAT Act.

57. The Appeal Tribunal then referred to the tenant’s application to remove matters to the Supreme Court, which the Acting Presidential Member had earlier indicated that he declined to do. There was then some brief discussion of a short-term stay of the orders made by the Appeal Tribunal.

58. In addition to not making any decision as to whether or not to give leave to adduce further evidence, the Appeal Tribunal did not make any findings of fact on the following aspects of the tenant’s claim: (a) whether she had not, in fact, had any notice of the proceedings in the ACAT until 16 January 2026, two days after orders were made against her; (b) whether she had made payments on 21 January 2026 that paid all arrears and put her in credit and then made a further payment on 27 January 2026 which retained her credit balance so that, as at the date of the hearing before the Appeal Tribunal, her rent was paid up to date; and (c) any of her complaints about repairs or the failure to give notice of the ACAT hearing in other communications from the lessor’s real estate agent.

59. It is at least reasonably arguable that the Appeal Tribunal misconceived its jurisdiction by treating it as narrower than in fact it was. It is arguable that it did so in two related ways.

60. First, in treating the appeal as strictly limited to the issue of whether, on the material before the Original Tribunal, there was an error of fact or law, the approach taken by the Appeal Tribunal treated its role too narrowly. The scope of s 82(1)(b) of the ACAT Act, which refers to treating an appeal “as a review of all or part of the original decision on the application by the tribunal”, is undoubtedly the subject of decisions of the ACAT and this court, none of which have been addressed for the purposes of this application. However, it is at least reasonably arguable that it is open in such an appeal to contend that there has been a denial of procedural fairness in circumstances where the rules of the ACAT relating to service have been complied with but where, as a matter of fact, the hearing proceeds without the tenant being aware of it. Alternatively, it is arguable that if there was not a denial of procedural fairness because of proper service of the application and notice of the listing, the Appeal Tribunal still had a power to admit further evidence on an appeal. If leave was granted to adduce such evidence about a question of fact, then the Appeal Tribunal could reach a conclusion that there was an error or, more flexibly, a miscarriage of justice arising from the decision of the Original Tribunal. A case in which, as a matter of fact, the tenant was unaware of the upcoming ACAT proceedings would be one where the capacity to receive further evidence on appeal may be significant.

61. It is arguable that focusing solely upon the material that was before the Original Tribunal, and considering only whether there was an error on that material, was too narrow an approach. An example in the Court of Appeal of a challenge to a discretionary decision which demonstrated no error but instead established a miscarriage of justice warranting that the discretionary decision be set aside is Mastalerz v DPP [2025] ACTCA 32.

62. As a consequence, it is reasonably arguable that to ask only whether, on the material before the Original Tribunal which proceeded ex parte, it was open to the Original Tribunal to act as it did, too narrowly defined the scope of the proceedings in the Appeal Tribunal.

63. Second, even if that approach is not correct and the powers of the Appeal Tribunal in an appeal by way of review, rather than a rehearing de novo, do not extend to correcting a miscarriage of justice arising in circumstances where the tenant did not in fact have any notice of the hearing, the order made by the President of the ACAT on 28 January 2026 as to the form of the appeal left open the possibility that it would not remain as a review of the original decision. The terms of the order were: The appeal will proceed by way of review of the original decision pursuant to section 82(b) [sic] of the ACT Civil and Administrative Tribunal Act 2008 unless the Appeal Tribunal orders otherwise. (Emphasis added.)

64. Thus, even if s 82(1)(b) of the ACAT Act involved a strictly error-based review of a discretionary decision (a proposition I doubt), the Appeal Tribunal maintained a discretion to depart from that approach if the circumstances of the case warranted it. If the facts were as the tenant stated them to be, then there was a proper basis to consider more broadly the justice of the circumstances and hence a need to determine whether or not to proceed outside the strict confines of s 82(1)(b). No consideration was given to that. When, early on in the proceedings, the Acting Presidential Member articulated the scope of the review, he did so by stating that it was to proceed by way of a review of the original decision and did not articulate the qualification that existed in the President’s order: see [38] above.

65. In circumstances where rent had in fact been paid up to the date of the hearing in the Appeal Tribunal, it is at least arguable that the acceptance of the factual basis put forward by the tenant may have made a difference to the decision of the Appeal Tribunal. It cannot be said that, even if those matters were accepted, her internal appeal was bound to fail. It may have failed; it may not have failed. That depended upon the exercise of one or more discretions by the Appeal Tribunal. However, it is at least reasonably arguable that the Appeal Tribunal failed to address the questions which it was obliged to in order to properly discharge its obligation on the hearing of the appeal.

66. In those circumstances, I consider it appropriate to grant leave to appeal.

Other grounds

67. None of the other grounds in the draft notice of appeal warrant a grant of leave to appeal.

Orders

68. Given the disorganised and unhelpful manner in which the tenant has articulated her arguments in her draft notice of appeal, the grant of leave to appeal will be confined to the arguable grounds which I have described. The stay of the orders of the ACAT will be continued to the hearing of the appeal.

69. There are also other proceedings commenced by originating application (SC 79 of 2026) which appear to relate to the same subject matter. It is not clear why those separate proceedings have been commenced. It may be that the tenant was under some misconception that they were necessary in addition to an application for leave to appeal. It is simply not clear. They will also be referred to the Registrar for further case management.

70. The orders of the Court in proceedings SCA 4 of 2026 are: (1) The applicant has leave to appeal from the decision of the Appeal Tribunal of the ACAT on 20 February 2026 on the condition that the grounds of appeal are limited to whether the Appeal Tribunal misconceived its jurisdiction or otherwise erred in law by failing to: (a) determine whether to admit the further evidence put forward in support of the appeal; (b) make findings of fact in relation to any such further evidence; (c) determine whether any facts found meant that, upon review under s 82(1)(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACT), the decision of the Original Tribunal should be set aside or varied; (d) consider whether any facts found meant that the Appeal Tribunal should make an order that the appeal be determined under s 82(1)(a); and (e) refuse the application for a termination and possession order. (2) The termination and possession order made by the ACAT on 14 January 2026 is stayed pending the determination of the appeal. (3) The applicant is to file and serve a notice of appeal consistent with order 1 by 25 March 2026. (4) The proceedings are listed before the Registrar at 2:30pm on Wednesday, 1 April 2026 for the setting of the hearing date for the appeal and the making of directions required for the purpose of that hearing. (5) The Registrar is also directed to address the non-compliance by the ACAT with the subpoena issued to it dated 11 March 2026. (6) The costs of the application are the applicant’s costs in the appeal.

71. The order of the court in proceedings SC 79 of 2026 is: (1) The proceedings are listed for directions before the Registrar at 2:30pm on Wednesday, 1 April 2026.

I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: