List of legislation: ACT Civil and Administrative Tribunal Act 2008

Residential Tenancies Act 1997 (ACT) s.49

List of Regulations: ACT Civil and Administrative Tribunal Procedure Rules 2009

List of cases: Allesch v Maunz [2000] HCA 40

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223

Commissioner for Social Housing in the ACT and Radovanov (Residential Tenancies) [2011] ACAT 12

Fisher v Commissioner for Social Housing in the ACT [2012] ACAT 32

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259

Re Minister for Immigration and Multicultural Affairs: ex parte Eshetu [1999] HCA 21

AND: THE COMMISSIONER FOR SOCIAL HOUSING IN THE ACT

1. Appeal granted.
2. Decision of 20 February 2012 set aside.
3. Conditional Termination and Possession order for 12 months from 20 February 2012.
4. Appellant to pay rent now assessed at $116.40 per fortnight plus arrears at the rate of not less than $30.00 per fortnight.

AND: THE COMMISSIONER FOR SOCIAL HOUSING IN THE ACT

1. As a result of decision in AA 12/23 this appeal is dismissed.

1. The appellant, Mr Pesi, is a tenant of the Commissioner for Social Housing, the respondent. On 6 December 2011, the Tribunal commenced hearing an application by the Commissioner for an order under section 49 of the Residential Tenancies Act 1997 (RT Act) in relation the appellant's tenancy.
2. The appellant was present at the hearing on 6 December 2011. At the conclusion of the hearing, the Tribunal adjourned the matter part-heard to

10 am on 20 February 2012, and made interim orders requiring the appellant to, among other things, pay a newly assessed rent of $116.40 per fortnight plus rental arrears of $30 per fortnight. 3. When the matter was called on 20 February 2012 there was no appearance by or on behalf of the appellant. The Tribunal proceeded to determine the matter in his absence, and made an unconditional termination and possession order. 4. On 23 March 2012, the respondent requested a warrant of eviction from the Tribunal as the appellant had not vacated the premises in accordance with the order of 20 February 2012. The warrant was granted and served on the appellant on that date. 5. On 28 March 2012, the appellant filed an application seeking orders to set aside the unconditional termination and possession order of 20 February 2012, and to stay execution of the warrant. 6. On 24 May 2012, the Tribunal made orders dismissing the appellant's application to set aside the unconditional termination and possession order made in his absence on 20 February 2012. On 21 June 2012, the appellant lodged an appeal from this decision. This was subsequently allocated the Appeal reference AA 12/31. 7. On 26 June 2012, the appellant lodged an appeal (subsequently allocated appeal reference AA 12/23) from the decision made on 20 February 2012 pursuant to section 79 of the ACAT Act and an application for leave to appeal out of time pursuant to Rule 22 of the Procedure Rules 2009 (No. 2) ("the Rules"). 8. On 3 September 2012 the Tribunal made the following orders in relation to both Appeals: * In appeal AA 12/23, the appellant is granted leave to appeal the decision of 20 February 2012 pursuant to Rule 14(1) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2). * Pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008, appeal AA 12/23 be heard as a review of all of the original decision of 20 February 2012 with the provision that any new evidence provided is limited to the objective circumstances surrounding the decision at the time it was made. * Pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008, appeal AA 12/31 be heard as a review of all of the original decision of 24 May 2012. 9. Both Appeals were set down for hearing on 11 September 2012. The Tribunal proceeded to hear the Appeal AA 12/23 (from the decision made on 20 February 2012) first. At the conclusion of the hearing the Tribunal allowed Mr Pesi's Appeal, set aside the decision of 20 February 2012 and made a conditional termination and possession order for 12 months until 19 February 2012. As a result of this Decision, Appeal AA 12/31 (from the decision of 24 May 2012) was dismissed by consent. 10. The Respondent subsequently requested a written statement of reasons for the orders in both Appeals pursuant to section 60 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The Tribunal now provides the reasons.

1. These appeals have been brought pursuant to section 79 of the ACAT Act which provides:

(a) the tribunal has decided an application (the original

(b) the original application was not an appeal from a decision by

(2) However, this section does not apply to an application for review of

a decision under the Heritage Act 2004, the Planning and

Development Act 2007 or the Tree Protection Act 2005.

(3) A party to the original application may, by application, appeal the

decision to the tribunal on a question of fact or law.

1. Pursuant to subsection 79(3) of the ACAT Act this is an appeal on a question of fact or law.

1. The Appellant's case was that, firstly, the presiding member based his decision on 20 February 2012 to terminate the Appellant's tenancy upon a factual error; secondly, the presiding member did not consider the evidence that the Appellant had been complying with the terms of the interim order on 6 December 2011 and thirdly, the presiding member failed to appropriately exercise the discretion in section 44 of the ACAT Act which sets out the process for proceeding with a matter in the absence of one of the parties to the application.
2. The Respondent submitted no error was disclosed by the Appellant's grounds of appeal as:
   • the decision to terminate the Appellant's tenancy was reasonably open to the presiding member on the evidence before him on 20 February 2012;
     • this evidence was that the appellant had failed to pay rent that had become payable, including paying no rent at all between March and November 2011; the appellant's rental history included numerous notices to remedy for failure to pay rent; the appellant's failure to remedy the breach of the tenancy agreement and his failure to provide requested information to the respondent to process rebate applications;
     • the decision to terminate the Appellant's tenancy was not invalid because of Wednesbury unreasonableness and the decision was not infected by a fatal error of fact; and
     • Section 44 is permissive and does not require the Tribunal to exercise a power; it does not require the Tribunal to consider whether each of the options available in subsection 44(2) should be exercised.
3. The Tribunal considered the Transcripts of the proceedings on 6 December 2011 and on 20 February 2012, the written submissions from the parties and the oral submissions at the hearing.

1. The factual error relied upon by the Appellant was that the presiding member explicitly relied on the Appellant's non-payment of rent in the period, 7 March 2011 to 15 November 2011, in his decision to terminate the tenancy on 20 February 2012 when he had earlier accepted the Appellant's explanation on 6 December 2011 as to why he could not pay rent in that period, describing the explanation as "a logical explanation for what has happened". The Appellant submits the termination and possession order was based on an erroneous conclusion and therefore wrongly made.
2. It is clear from the Transcript that the presiding member accepted on 6 December 2011 that:
   • prior to the accident in March 2011, the Appellant had been making rent payments to the Respondent in advance and was about $700 in credit in March 2011; and
   • he did not receive any money after the accident as he was waiting for the insurance to come through and Centrelink would not put him on payments because he was waiting for the insurance. The insurance did not come through.
3. The presiding member adjourned the hearing until 20 February 2012 to allow the parties to sort out the Appellant's actual circumstances from April 2011 until November 2011 and to make any necessary adjustments. The presiding member also ordered the Appellant to pay his rent assessed at $116.40 per fortnight, plus arrears of $30 per fortnight in the interim. The presiding member then said:

"...if that all goes well, we'll just do another basic 12-months condition termination which just means it, you know, just continues. You've been on one before. And you've obviously responded well. So from what you are saying, this appears to have been just a very bad accident. You're just unable to get anything. You're in sort of desperate straits, and it, something obviously happened because of your good record up until then."

"Yes, well, you're about five or six hundred, $700 bucks in front and then suddenly, whamo, and you go down, you can't pay anything. So yes, it's all very logical, what you're saying. All right, well, good luck. Have a good Christmas."

1. On 20 February 2012 the Appellant did not attend the adjourned hearing. A perusal of the transcript shows that evidence had been put before the presiding member that day that the Appellant had "been making the payments required, [pursuant to the interim orders of 6 December 2011] but there was still a substantial time from 7 March to 15 November when no payments were made."
2. The transcript shows that the following exchange in relation to the Appellant's non-payment of rent in this period took place between the presiding member and Ms Boljkovac for the Commissioner:

"President Stefaniak: He could have paid something.

President Stefaniak: All right. On that basis, I'll even though he is not here. See if he'd paid something I'd probably say "Go away until...(indistinct) ...further, but on the basis that he hadn't paid anything, perhaps I think that's sufficient."

1. There is no reference in the transcript of the hearing on 20 February 2012 to the evidence which the presiding member had accepted on 6 December 2011 in relation to the Appellant's non-payment of rent from March to November 2011 and the reasons for it. There also was no evidence on 20 February 2012 contrary to the evidence that the presiding member had accepted on 6 December 2011. Instead, the presiding member made an unconditional termination and possession order to take effect as a warrant of eviction order in respect of the Appellant's tenancy on the basis that he had not paid any rent payments in the period March 2011 to November 2011.
2. The Respondent submitted that there was no error of fact resulting from the presiding member's failure to avert to previous evidence submitted by the Appellant. The application was made pursuant to section 49 of the RT Act on the ground that the Appellant had failed to pay rent and the grant of such an application is a discretion. The original tribunal is entitled to reject or accept evidence as it thinks is appropriate in all the circumstances. If there is some evidence available to the Tribunal on which the finding could be made and unless there is some proof of Wednesbury[1] unreasonableness, the merits of the original decision should be left untouched.
3. Additionally, the Respondent submitted that the transcripts of proceedings are meant to inform and not be scrutinised on review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (per Brennan, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259.)
4. It appeared to the Tribunal that on 20 February 2012 the presiding member focussed on the non-payment of rent in the period March to November 2011 without recollecting or being re-appraised of the evidence which he had previously accepted on 6 December 2011explaining why the Appellant had not paid the rent. To not have considered this evidence on 20 February 2012 and to make an unconditional termination and possession order based on the conclusion that he could have paid some rent in that period was contrary to evidence that the presiding member had previously received and was, the Appellant submits, a fatal flaw and led to an erroneous conclusion.
5. Without scrutinising the transcript, it is readily apparent that there is a clear statement that the non payment of rent in this period was the basis of the presiding member's decision on 20 February 2012 and that there is no reference to the evidence previously accepted by the presiding member on 6 December 2011 as to why the rent had not been paid.
6. While it was not disputed that the Appellant had not paid the rent in the relevant period it appears to the Tribunal that the presiding member's failure not to consider the evidence he had accepted on 6 December 2011 in relation to the reasons for the Appellant's non payment of rent is a failure to take account of a relevant consideration.
7. The Tribunal was satisfied that the presiding member acted unreasonably in terminating the Appellant's tenancy without giving proper weight to this relevant consideration. [2]

The failure to consider the Appellant's compliance with the interim orders of 6 December 2011.

1. The Tribunal noted that Ms Boljkovac informed the presiding member on 20 February 2012 that the Appellant had, in accordance with the interim order of 6 December 2011, made consistent rental payments on 24 and 29 December 2011 and 3, 10, 13, 21 and 30 January 2012 and 9 and 18 February 2012. He also made a rent payment on 3 December 2011.
2. The Appellant submitted that the presiding member did not give any or any appropriate weight to the evidence from Ms Boljkovac that the Appellant had met his rent obligations pursuant to the earlier order and had made the last payment on 18 February 2012, some two days before the resumed hearing on 20 February 2012. There was also evidence before the presiding member that the Appellant had resumed the payments on 11 November 2011, almost four weeks before the hearing on 6 December 2011
3. The Respondent submitted it was open to the presiding member to place what weight he wanted to on this evidence and on all of the other evidence that was presented to him. The compliance with the interim order in this period did not ameliorate or absolve the Appellant of his previous rental history which was not demonstrative of his ability to sustain the current tenancy.
4. While the Tribunal agrees with the Respondent's submission, even from a cursory reading of the transcript it was not apparent what weight, if any, the presiding member had given to this evidence in considering the Appellant's ability to sustain the current tenancy. The Tribunal refers to and repeats its findings in paragraph 27 above in relation to this ground.

Section 44 of the ACAT Act and Natural Justice and Procedural Fairness

(1) This section applies if, at the time set for the hearing of an

application, a party fails to appear either personally or by a

(a) order that the application be set down for hearing at another

(b) order that stated other steps be taken before the hearing

(d) proceed with the hearing in the absence of the party either

generally or in relation to any relief claimed in the application;

(e) if the party is the applicant - dismiss the application; or

(f) if the party is not the applicant or respondent - remove the

1. The Tribunal accepts that the requirement of section 7(b) of the ACAT Act to observe natural justice and procedural fairness does not prevent the Tribunal from exercising the discretion in section 44(2)(d) to proceed with an application in the absence of a party. However, section 44 sets out a range of options which the Tribunal can exercise. The evidence in this matter was that the Appellant had been making regular payments of his rent in accordance with an interim order, the last payment only two days before the resumed hearing.
2. The Appellant submits this evidence, of itself, should have been persuasive in the presiding member's consideration of the powers available to him in section 44 and in particular subsection 44(2)(c). The Appellant further submits that there was no prejudice to the Respondent if an adjournment of a week or two weeks was made to give the Appellant the opportunity to appear.
3. As the application was seeking to terminate the Appellant's tenancy, the Appellant submitted the presiding member should have considered the fact that the Appellant was a public housing tenant and a vulnerable person (see Commissioner for Social Housing in the ACT and Radovanov (Residential Tenancies) [2011] ACAT 12,) and had been self represented in the previous hearing, when exercising the discretions under the RTA and section 44 of the ACAT Act.
4. The Appellant referred the Tribunal to the case of Fisher v Commissioner for Social Housing in the ACT [2012] ACAT 32 ("Fisher") where the General President stated at paragraph 47:

"Consistently with its statutory objective to ensure that the decisions of the tribunal are fair and its statutory obligation to comply with the rules of procedural fairness, the tribunal has an obligation to ensure that self-represented parties receive a fair hearing by giving the appropriate assistance. If that is not done, it may be difficult to be confident that the tribunal has considered the relevant factual and legal issues or has exercised any discretion appropriately and in any way that is consistent with achieving justice."

1. The Appellant submitted adjourning the matter on 20 February 2012, or attempting to contact the Appellant by telephone on 20 February 2012, given the uncontested evidence about his consistent rental payments up to two days before the hearing, would have afforded the Appellant a reasonable opportunity to continue to present his case.
2. The Tribunal has to weigh up the efficient discharge of the tribunal's functions against unreasonable delay in concluding litigation[3]. The Appellant submitted the key word is "unreasonable". In this case it might have been reasonable to assume, if the Appellant had not been paying rent in the intervening period and had also failed to attend the hearing, that he had repudiated the tenancy agreement.
3. The Respondent submitted that the critical issue for the tribunal was whether the section 49 discretion in the RT Act was exercised properly and the original decision maker's decision should not be pored over with a fine-tooth comb with a view to finding an error. The Respondent also submitted that the critical fact was that the Appellant had not made any payments between March and November 2011 and whether or not a member did or did not accept the explanation for that situation does not negate the fact that the Appellant made no payments during that period.
4. The Respondent further submitted that the General President's comments in Fisher do not go so far as to require any tribunal member to step out of the position of being an impartial decision-maker to make a party's case for them to ensure that they are aware of their obligations, including the requirement to attend a further hearing. Thus, on 20 February 2012 section 44 could have reasonably been exercised by proceeding in the Appellant's absence because there was evidence that the Appellant had been before the Tribunal before when conditional termination and possession orders were in place.
5. The fact is that the Appellant had been making the interim order payments consistently and extra payments as well which is not the action of a tenant who is not invested in their tenancy. There was also evidence before the presiding member that the Appellant had been to a meeting with the Respondent in relation to his rental rebate, had resubmitted documentation and was engaged with the Respondent. To have contacted the Appellant or to have adjourned the hearing for a week or two, the Appellant submitted, would not have caused an unreasonable delay in concluding the litigation. The Tribunal concurs.

1. The Tribunal's role is to address the question of fact that has been raised and if an error is found the role is limited to correcting what decision should have been made at the time
2. Having considered all of the matters before it and made the findings in paragraphs 27, 31 and 41 above the Tribunal is satisfied and finds that the presiding member erred in failing to take account of a relevant consideration -the reasons for the Appellant's non payment of rent and the Appellant's compliance with the interim orders when considering the Appellant's ability to sustain the tenancy and making the unconditional termination and possession order. This error materially affected the outcome of the presiding member's decision. Therefore the Appeal should be allowed.
3. Rule 21 gives the Tribunal a general power to substitute its own judgment in place of the original decision when an appeal is allowed.
4. After some discussion with the representatives of the parties the Tribunal made the following orders:
   1. Appeal AA 12/23 allowed;
   2. Decision of 20 February 2012 is set aside;
   3. There be a conditional termination and possession order for 12 months from 20 February 2012;
   4. The Appellant pay rent now assessed at $116.40 per fortnight plus arrears at the rate of not less than $30 a fortnight.

1. As a result of the Tribunal's decision in AA12/23 to set aside the decision of 20 February 2012, appeal AA 12/31 was dismissed by consent.

SOLICITORS: APPLICANT: Welfare Rights & Legal Centre

TRIBUNAL MEMBER: Ms E Symons, Presidential Member

DATE/S OF HEARING: 11 September 2012 PLACE: CANBERRA

DATE/S OF DECISION: 19 November 2012 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] 1 KB 223

[2] Re Minister for Immigration and Multicultural Affairs: ex parte Eshetu [1999] HCA 21

[3] Allesch v Maunz [2000] HCA 40