List of Legislation: ACT Civil and Administrative Tribunal Act 2008, ss 79,

Residential Tenancies Act 1977 (ACT) ss 42, 42A, 42A(1)(c) 42B, 49(3), 49(4)

List of Regulations: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No.2), r. 21

List of Cases: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [[1948] 1 K.B. 223

O'Donnell v Environment Protection Authority [2012] ACTSC 140

Eastman v Commissioner for Social Housing for Social Housing [2011] ACTCA 12

Das v A & A Airconditioning Pty Ltd (Civil Disputes) [2011] ACAT 52

ACT Human Rights Commission v Raytheon Australia Pty Ltd**,** Aerospace Technical Services Pty Ltd, Australian Maritime Surveillance Pty Ltd, Aeronautical Consulting Training and Engineering [2009] ACTSC 55

Thornthwaite v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 11

Zhang & Yuan v Koh [2010] ACAT 6

Pesi v Commissioner for Social Housing in the ACT [2012] ACAT 61

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

Papers: Australian Capital Territory, Parliamentary Debates,

Legislative Assembly, 8 May 2008, 1579, in relation to the

Tribunal: Ms E. Symons, Presidential Member

1. Subject to Orders 3, 4, and 5 below the decision of the Original Tribunal dated 17 September 2012 to terminate the appellant's tenancy and grant a warrant of eviction is confirmed.

1. The warrant of eviction which was issued on 17 September 2012, which on 4 October 2012 was stayed until further order, but no later than 31 December 2012, and subsequently amended on 15 January 2013 to delete the words "not later than 31 December 2012" is stayed until 4pm Monday 4 March 2013.

1. The appellant/tenant shall pay the respondent/lessor rental arrears in the sum of $6,964.42 forthwith.

1. Liberty to relist after execution of the warrant for hearing any claims for compensation or occupancy fee.

1. The appellant, Ms Mangubat, is a tenant of the Commissioner for Social Housing, the respondent. On 5 January 1986, she commenced her tenancy at 4 Litchfield Place, Gilmore in the Australian Capital Territory.

1. At various times between 1994 and 2005 the respondent sent the appellant letters concerning her rental arrears and the appellant entered agreements with the respondent to pay off the rental debts.

1. In August 2009, the appellant's rental account was in arrears in the amount of $1,000. Between 31 August 2009 and 10 May 2010, three Notices to Remedy for arrears were served on the appellant.

1. On 17 May 2010, a Notice to Remedy was served on the appellant. At this time the rental account arrears were $2,014.42. The rent was $350 per week.

1. On 5 August 2010, a Notice to Vacate was served. At this time the rental arrears were $1,614.42.

1. On 13 October 2010, an application (RT 10/760) was made to the ACT Civil and Administrative Tribunal (the Tribunal) by the respondent and conditional termination and possession orders were made. By then, the rental account arrears were $414.42.

1. On 4 November 2010, the respondent sent a letter to the appellant advising her that she had breached the Orders made on 12 October 2010.

1. On 10 November 2010, the respondent sent the appellant a letter requesting her attendance on 16 November 2010 to discuss the breach. The appellant failed to attend the appointment

1. On 13 September 2011, an application was made to the Tribunal by the respondent and the Tribunal granted fresh conditional termination and possession orders. In September 2011 the rental account arrears were $4,774.42.
2. On 24 November 2011, the respondent sent the appellant a letter advising her that the orders made on 28 September 2011 had been breached.

1. On 9 February 2012, the respondent applied to the Tribunal for the termination of the tenancy agreement (RT 12/126). At this time the weekly rent was $380.00 and the rental account arrears were $6,744.42.

1. On 23 February 2012, the respondent applied to the Tribunal for a warrant of eviction due to a breach of the conditional termination and possession order made on 28 September 2011 in proceedings RT 10/760.

1. This application was listed for hearing on 6 March 2012 with the respondent's application for the termination of the tenancy agreement in RT 12/126.

1. On 6 March 2012, the Tribunal ordered the appellant to pay $1,500.00 rent and arrears by 27 March 2012; to apply for a rental rebate by 27 March 2012 and to co-operate with the respondent in the process. The applications were adjourned for a further hearing on 27 March 2012.

1. On 27 March 2012, the appellant did not attend the hearing and the Tribunal made an ex-parte termination and possession order which had effect as if it were a warrant of eviction.

1. On 9 May 2012, on the appellant's application, the order of 27 March 2012 was set aside and the matter was relisted for 21 May 2012. On 21 May 2012, the appellant was ordered to pay rent and arrears at the rate of $900 per fortnight, with the first payment to be made on or before 10:00 am Monday, 28 May 2012 and every fortnight thereafter until 13 August 2012, the date to which the matter had been adjourned part heard. Liberty was granted to either party to relist at short notice. The rent account arrears were $5,614.42 and the weekly rental was $380.00.

1. On 13 August 2012 the matter was adjourned to 27 August 2012 with the Notation that now the appellant is seeking a loan to repay the whole debt by 23 August 2012. The rental account arrears were $7,274.42 and the weekly rental was $410.00.
2. On 27 August 2012, the matter was again adjourned, part heard, to 3 September 2012 and on 3 September 2012, the matter was further adjourned to 17 September 2012. The rental account arrears were $8,504.42 and the weekly rental was $410.00.

1. On 17 September 2012, Presidential Member Stefaniak made orders that said:
   1. That the Tenancy Agreement has been breached.
   2. That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor by 4:00 pm Monday 8 October 2012.
   3. That the said tenant and any other person claiming right of possession through the tenant's tenancy is to vacate the premises in accordance with this Order.
   4. That a warrant for eviction is to be issued if the respondent has not vacated the property by 4:00 pm on 8 October 2012.
   5. That the tenant shall pay the lessor an occupancy fee at the rate of $58.57 per day from 17 September 2012 until the date that possession is given.
   6. That the tenant is to remove all goods and return the premises in a clean condition by 4:00 pm Monday 8 October 2012.
   7. That any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Goods Act applies to their storage and disposal.
   8. That the tenant/s shall pay the lessor rental arrears in the sum of $6,324.42 forthwith.

2. On 27 September 2012, the appellant lodged an appeal to the Appeal Tribunal (Appeal Tribunal) seeking :
   1. A stay of the warrant of eviction issued by the Tribunal on 17 September 2012 until the appeal is decided; and
   2. The Tribunal set aside the Termination and Possession Order made on 17 September 2012; and
   3. The Tribunal make, in place of the Termination and Possession Order, a Conditional Termination and Possession Order under section 49(3) and (4) (of the Residential Tenancies Act 1977(the RT Act)).

1. On 4 October 2012, the Appeal Tribunal granted a stay of the warrant of eviction until further order, not later than 31 December 2012, and ordered that the appellant make rent payments from 4 October 2012 in accordance with her current obligation to the respondent, or as otherwise agreed by it. The Appeal Tribunal also made orders:
   • giving the parties access to the transcript of the 'hearing below';
   • requiring the parties to file and serve submissions on sections 79 and 82 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) and their witness statements;
   • providing that the Appeal Tribunal is to determine, prior to the hearing, the way the hearing is to proceed under section 82 of the ACAT Act; and
   • setting the matter down for hearing on a date to be fixed (14 December 2012).

1. On 18 October 2012, Mr Emerson-Elliott lodged the appellant's submissions on sections 79 and 82 of the ACAT Act and lodged the Appellant's Statutory Declaration dated 16 October 2012. On 8 November 2012, the respondent lodged submissions on sections 79 and 82 ACAT Act and General Submissions. On 13 December 2012, Mr Emerson-Elliott lodged submissions on section 42A(1)(c) of the Residential Tenancies Act 1997.

1. On11 December 2012, the Appeal Tribunal determined that the appeal would proceed as a review of all of the original decision pursuant to section 82(b) of the ACAT Act and, pursuant to Rule 21(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules) would receive further evidence about questions of fact that existed at 17 September 2012.

1. At the hearing on 14 December 2012 Mr Emerson-Elliott, Advocate from the Welfare Rights and Legal Centre, appeared for the appellant. Ms Tarbet, from the ACT Government Solicitor's Office, appeared for the respondent. At the conclusion of the hearing, the Appeal Tribunal reserved its decision.

1. On 15 January 2013, the Tribunal made the following order:

"By Consent, paragraph 1 of the orders made on 4 October 2012 be amended by deleting the words 'not later than 31 December 2012'."

1. The appellant stated in her application for appeal that the grounds relied on were that the decision by the Tribunal [on 17 September 2012] not to grant a conditional termination and possession order was unreasonable (the First Ground) and that the Tribunal did not have jurisdiction to hear the original application (the Second Ground).

1. The appellant also stated that the Tribunal should deal with the First Ground by ordering that the issue be considered as a new application under section 82(a) of the ACAT Act for the following reason -

This is consistent with the Tribunal's role as a merit review tribunal, and is consistent with the Attorney General's Explanatory Statement on the Bill for the Act that 'The Tribunal is to seek after the substantial merits of a case in accordance with law, but in doing so is not to allow matters of a technical nature to subvert the goal'.

The tenant will argue that the Termination and Possession Order made on 17 September 2012 should be set aside for one or both of the following two reasons:

• The Tribunal's decision that the tenant is not reasonably likely to pay rent that has become payable as well as future rent as it becomes payable (see section 49(3) and (4) of the RT Act) was not reasonable; and
• The Tribunal did not have jurisdiction to hear an application for a Termination and Possession Order based on a breach of a Conditional Termination and Possession Order because the condition precedent for that jurisdiction, as set out in section 42A(1)(c) of the RT Act, has not been satisfied.

1. Sections 79 and 82 of the ACAT Act relevantly provide:

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

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

(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.

82 An appeal tribunal may, as the tribunal considers appropriate, deal with an

(b) as a review of all or part of the original decision on the application by the tribunal.

1. Rule 21 of the Rules, which sets out the general powers of the Tribunal for an appeal, states:

_21. For an appeal to the tribunal, the tribunal - _

(a) has all the powers and duties of the tribunal that made the order appealed

(c) may receive further evidence about questions of fact, either orally in a

hearing, by written statement or in another way; and

(d) may make an order confirming, amending or setting aside the order of the

(e) may make any other order it considers appropriate

1. In submissions lodged on18 October 2012, Mr Emerson-Elliott submitted that section 79 does not serve any purpose in relation to an internal appeal within the Tribunal. In making this submission he relied on what he described as the common-sense statement by Justice Penfold in O'Donnell v Environment Protection Authority [2012] ACTSC 140 at paragraph 47:

Under s. 79(3) of the ACAT Act, the internal appeal from an ACAT decision is an appeal on a question of fact or law. Under s. 82, an appeal tribunal may "deal with an appeal" as a new application or as a review of all or part of the original decision. It is hard to see what purpose is served by requiring the appeal to be "on a question of fact or law" if the appeal process may then be conducted "as the Tribunal considers appropriate" as either a hearing de novo or a rehearing.

1. The respondent, in its submissions, submitted that in dealing with an appeal the Appeal Tribunal must be satisfied that there exists a question of fact or law, as set out in subsection 79(3) of the ACAT Act, which has been identified in a precise manner and that where no such question is identified the application for appeal should be dismissed as section 79 has not been satisfied and the Tribunal, accordingly, does not have jurisdiction to hear an appeal.
2. The Tribunal has considered the Second Reading Speech [1] in which the Attorney General stated:

While appeal from the tribunal to the Supreme Court will be allowable - with, of course, the leave of the court - to reduce the incidence of appeals to the Supreme Court and to enable the tribunal to best control the quality of its decisions, the legislation provides for internal review of tribunal decisions by presidential members in the first instance.

1. The Tribunal is satisfied that it is clearly intended for this Tribunal to hear appeals from decisions made by the Tribunal at first instance. However, in determining the nature of the appeal the Tribunal is required to look at the terms of the legislation conferring the appeal right and is entitled to be informed by the procedure and practice of courts and other review bodies.
2. The Tribunal accepts the respondent's submission that an appellant does not have standing to an appeal as of right; that an appellant is required to identify a question of fact or law (section 79(3)) and an appellant cannot merely request the re-exercise of a discretion[2].
3. The right of appeal in the Tribunal is found in section 79 of the ACAT Act. It is a statutory right. The Tribunal only has jurisdiction to hear an appeal that falls within its terms. Subsection 79(3) is clear; it sets out the basis for an appeal from an original decision and it necessitates identifying a question of fact or law to be corrected on appeal as a gateway issue. It is up to the Tribunal to then consider the question of fact or law in the appeal proceedings.

1. As stated above, on 11 December 2012 the Appeal Tribunal determined that the appeal would proceed as a review of all of the original decision pursuant to section 82(b) of the ACAT Act and, pursuant to Rule 21(c) of the Rules, would receive further evidence about questions of fact that existed at 17 September 2012. The Appeal Tribunal now sets out its reasons for that decision.

1. In reaching this decision, the Appeal Tribunal had the benefit of submissions from Mr Emerson-Elliott and from the ACT Government Solicitor. Mr Emerson-Elliott requested that the Appeal Tribunal hear the appeal as a rehearing pursuant to section 82(a) of the ACAT Act.

1. Notwithstanding reference in the appellant's submissions to the Tribunal applying a strict test as to when it is appropriate to deal with an appeal as a new application in the civil jurisdiction,[3] the appellant submitted _harm is done if a residential tenancy matter is not dealt with on appeal as a new application as that precludes the Tribunal from hearing material relevant to the circumstances current at the time of the appeal[4]_as opposed to the circumstances at the time of the decision under appeal.

1. He submitted that the Tribunal's application of a strict test as to when it is appropriate to deal with an appeal as a new application in its residential tenancies jurisdiction should be treated with caution as an appeal is not akin to a judicial review but rather involves a merits review of the tribunal's own decision.

1. The respondent submitted that the hearing should proceed by way of review and opposed the suggestion that an appeal from a termination and possession order should proceed routinely by way of a hearing de novo. The respondent referred the Tribunal to the decision in ACT Human Rights Commission v Raytheon Australia Pty Ltd, Aerospace Technical Services Pty Ltd, Australian Maritime Surveillance Pty Ltd, Aeronautical Consulting Training and Engineering [2009] ACTSC 55 in which Master Harper stated in relation to the Administrative Appeals Tribunal:

A decision of the Tribunal is not intended to be open to appeal generally, as is the case, for example, with a judgment of this Court. It must be accepted that there are sound reasons of public policy for this limitation, notwithstanding that some who fail in the Tribunal will have a sense of grievance about it.

1. The respondent also referred to the decision of the Appeal President in Thornthwaite v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 11 (Thornthwaite), where he commented that a relevant concern [in considering section 82 of the ACAT Act] is whether the circumstances have so completely changed from the time of the original decision that it would be a denial of natural justice, or common sense, to not take those changed circumstances into account. Such circumstances were described as an 'exception' to the general rule that no new evidence may be adduced during an appeal by way of review.

1. The Appeal Tribunal notes that the Tribunal has considered section 82 in other decisions, namely Zhang & Yuan v Koh [2011] ACAT 6 and Pesi v Commissioner for Social Housing in the ACT [2012] ACAT 61 and is satisfied that an appeal will ordinarily be conducted as a review of part or all of the decision, except where the interests of justice or effective and timely handling of the application, suggest it should be heard as a new application.

1. Accordingly, the Appeal Tribunal determined that the circumstances of this appeal were not such that justified hearing this appeal pursuant to section 82(a) of the ACAT Act. There was nothing in the appellant's submissions that justified the Appeal Tribunal conducting this appeal as an exception to the general rule referred to in Thornthwaite. The Tribunal was also not satisfied that the interests of justice or effective and timely handling of the appeal justified it being heard as a new application. The Tribunal directed that the appeal was to proceed pursuant to section 82(b) of the ACAT Act, as a review of all of the original decision. Pursuant to Rule 21(c) of the Rules, the Appeal Tribunal permitted the appellant to provide evidence about questions of fact as at 17 September 2012.

1. The Appeal Tribunal noted the appellant's concerns about not being able, in a review, to put evidence about the appellant's circumstances after the date of the original decision before the Appeal Tribunal. However, to do so would make the original hearing pointless and would prevent a proper consideration of whether a question of fact or law arose in the circumstances as they were at the time the decision was appealed from.[5]

1. The appellant submitted that the decision by the Tribunal not to grant another conditional termination possession order was unreasonable. This was not developed in any detail in written submissions received by the Tribunal. However, in the hearing the appellant's representative urged the Tribunal to apply the "Wednesbury test". Mr Emerson Elliot, for the appellant said the order by Mr Stefaniak was unreasonable on the evidence before him under the "Wednesbury test"that he took into account issues that he shouldn't have taken into account and didn't take into account issues that he should've taken into account.

1. This appeal relates to a decision made pursuant to sections 42A and 42B of the Residential Tenancies Act 1997 (RT Act). Those sections provide, in summary, that where a conditional termination and possession order has been made by the Tribunal and the lessor satisfies the Registrar that the order remains in force and that the condition precedent to an application for a warrant has been satisfied (that the tenant has not complied with the terms of the order) then the application for a warrant shall be set down for a hearing. Section 42B provides that such application must be decided as if it were an application under section 49 for a termination and possession order. The Tribunal may make an order for the issue of a warrant of eviction, or dismiss the application and confirm the existing conditional termination and possession order, make a new conditional termination and possession order or set aside the existing conditional termination and possession order.

1. In determining whether or not to allow the application or dismiss it the Tribunal is, therefore, required to have regard to section 49 of the RT Act. This will necessarily include an exploration of issues relating to whether the tenant is reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable; and, whether the tenant has agreed to pay the rent that has become payable, and has undertaken to pay future rent as it becomes payable, as required by the RT Act.

1. Thus, this ground of appeal alleges that in the process of hearing the application for a warrant of eviction the Original Tribunal, in deciding that the tenant was not reasonably likely to pay the rental arrears as well as future rent as it became due, and, notwithstanding the tenant's undertaking to pay the arrears and rent, had reached a decision that was unreasonable in all the circumstances.

1. The Wednesbury test referred to by Mr Emerson-Elliott t is found in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[6]. The Appeal Tribunal was urged by Mr Emerson-Elliott to read this case. The test as to unreasonableness as set out in Wednesbury has two parts:
   1. At page 229, the court states:

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must so to speak, direct himself properly in law. He must call his own attention to the matters which is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey these rules, he may truly be said, and often is said, to be acting "unreasonably.""

"...It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere."

1. At page 233, the court summarises the test for unreasonableness:

"....The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority has kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it."

1. The court in the Wednesbury case stressed that the issue of unreasonableness is not to be addressed by an appeal court asking what the appeal court thought was reasonable, but by asking whether the original decision was made where the decision-maker took into account all things that ought to have been taken into account and did not take into account something which was not relevant.

1. Mr Emerson-Elliott drew to the attention of the Appeal Tribunal a number of factors which he said the Appeal Tribunal should take into account, as factors which the Original Tribunal ought to have considered. These include that the tenant is a hard-working single mother, who had survived an abusive relationship and that the tenant had fallen into arrears because she had an obligation to provide for her mother who was unwell, and who lived in a house owned by the tenant in the Philippines, until that house was destroyed by fire. He also said that the tenant's mother's illness and the tenant's need to pay for her mother's relocation into alternative housing had further impacted on the tenant's rental payments. Mr Emerson-Elliot noted that this tenancy was a long one of 26 years standing, that it had been a family home and that the tenant had had no rental problems prior to October 2009.

1. In her Statutory Declaration, the appellant stated that she had maintained regular payments of her rent for over twenty years and that she did not have any rental problems until about September or October 2009. The appellant gave sworn evidence and in cross examination she conceded that from 1994 to 2004 she had been in arrears of rent at various times and had entered into agreements to repay these debts. She asserted that she had always paid her debt, but conceded that there had been about fifteen incidents of falling into arrears during the course of the tenancy. The appellant gave further evidence in relation to the circumstances of family obligation, the trips she undertook to the Philippines, her current work and income situation, her period of unemployment and her children's circumstances.

1. The Appeal Tribunal approached the question of unreasonableness in two steps. Firstly, the Appeal Tribunal examined the evidence available to and the process of the hearing in the Original Tribunal to determine whether that Tribunal took into account matters which ought not to be taken into account, or, conversely, neglected to take into account matters which ought to be taken into account. Secondly, the Appeal Tribunal considered and determined whether in all the circumstances the original decision was one which no reasonable Tribunal could ever have come to. This included the Appeal Tribunal examining submissions about the tenant's circumstances at the time of the original decision.

1. A termination and possession order on condition was made by the Tribunal on 28 September 2011. On 9 February 2012, the respondent/lessor made an application for termination of the Tenancy Agreement. On 23 February 2012, the respondent/ lessor applied to the Tribunal for a warrant of eviction due to a breach of the conditional termination and possession Order made on 28 September 2011, pursuant to section 42A of the Act. The appellant/tenant was in arrears in the amount of $6744.12 at the time of the application.

1. On 27 March 2012, a termination and possession order was made ex parte. On 21 May 2012 an application by the appellant/tenant to set aside the order made on 27 March 2012 was granted. The matter was adjourned and the appellant/tenant was ordered to pay $900.00 per fortnight towards the rent and arrears. On 21 May 2012, the arrears were $5174.42.

1. The matter was heard again on 13 August 2012. The respondent/lessor alleged breach of the conditional termination and possession order and asked for an eviction. On 13 August 2012 arrears were $7274.42 - the appellant/tenant had failed to comply with the order with regard to payments of $900.00 per fortnight during the adjournment period.

1. A perusal of the transcript of the hearing on 13 August 2012 shows that the appellant/tenant said to the Tribunal: "yes. I'm sorry, but I breached this one because my mum was sick last June and she just came out from the hospital. She got - her high blood pressure is too high so I need some money to deposit for - but I'm having a loan. I have an interview today. So if I get the loan I pay this rent."[7] Mr Emerson-Elliott submitted to the Appeal Tribunal that the Original Tribunal had acted unreasonably in "requiring" the appellant/tenant seek a loan. The transcript reveals that the application for a loan was the appellant/ tenant's own initiative.

1. The matter was adjourned to give the appellant/tenant an opportunity to borrow money to repay the entire debt, and, to complete rental rebate forms. The hearing resumed on 3 September 2012. It is apparent from the transcript that the appellant/tenant informed the Original Tribunal that she had not been able to obtain a loan. By this date the arrears of rent had increased to $8504.42 and she had not completed the rebate forms. The Original Tribunal expressed the view that it was not able to be comfortably satisfied that the appellant/ tenant could actually maintain this tenancy. The appellant/tenant then suggested that she arrange a direct debit from "my pay". She had also informed the Original Tribunal that she anticipated receiving a tax refund and that this would be paid towards the arrears of rent. The matter was adjourned to 17 September 2012.

1. It is clear from the transcript that the Original Tribunal expected the appellant/tenant to arrange for rent to be paid by direct debit from her wages, that she would complete the rental rebate forms and that the anticipated tax refund would be received and used to reduce the arrears during the adjournment period.

1. On 17 September 2012, the hearing resumed. The transcript of that hearing reveals that the appellant/tenant had not made regular payments and only one payment of $3000.00 towards the arrears on the day before the hearing (the tenant advised that this money had been supplied by her son); that the appellant/tenant had arranged a direct debit from her bank account but had not arranged for a direct debit from her wages; that she had, once again, failed to complete the rebate forms; and, that the arrears stood at $6324.62. The Original Tribunal stated that it had no confidence that the appellant/tenant was able to repay the arrears and pay rent as it fell due. A termination and possession order was made and a warrant issued.

1. Apart from referring to the issue of loan, Mr Emerson-Elliott made no submissions in relation to any factors which were taken into account but ought not to have been taken into account or any matters which ought to have been considered but were not considered by the Original Tribunal. The Appeal Tribunal is of the view that the Original Tribunal had taken the factors outlined by Mr Emerson-Elliot into account; the number of adjournments indicated that the Original Tribunal's sympathy had been aroused and President Stefaniak was giving the tenant opportunities to address the debt and find a solution.

1. The evidence outlined above supports the following finding of facts: irregular payments were made by the appellant/tenant; the tenant failed to take action as requested by the Tribunal or as undertaken to the Tribunal by the tenant to complete the rental rebate forms; and the escalating amount of arrears. The Appeal Tribunal is of the view that the decision of the Original Tribunal was reasonably open to it on the available evidence.

1. The Appeal Tribunal is also of the view that the Original Tribunal extended procedural fairness to the appellant/tenant. The matter was adjourned on several occasions to allow the appellant/tenant to make arrangements to ensure payment of the debt and completion of the rebate forms. The application was filed in February 2012 and not finalised until September 2012. The appellant/tenant was in arrears in the amount of $6744.12 at the time of the original application, and some eight months later the arrears stood at $6324.42. The tenant made only one payment towards rent or arrears between 23 June and 17 September 2012, being $3,000.00 on 3 September 2012. This supports the Original Tribunal's conclusion that the appellant/tenant was not able to pay the rent and repay the arrears.

1. The Appeal Tribunal finds that there was no other reasonable decision open to the Original Tribunal than to issue a warrant eviction.

1. In relation to the specific submissions made by Mr Emerson-Elliott, the Appeal Tribunal accepts this is a tenancy of long-standing - twenty-six years. In determining applications for termination and possession orders and warrants of eviction the Tribunal must apply the law: that is, the Tribunal must consider whether, even though there has been a breach of an existing order, the tenant is reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable; and, whether the tenant has agreed to pay the rent that has become payable, and has undertaken to pay future rent as it becomes payable, as required by the RT Act.

1. The evidence before the Original Tribunal was that the appellant/tenant was not able to pay the debt. In her statement lodged on 28 February 2012 contesting the original application, she said "I just don't have any money to pay in full as I earn only $660 per week". The appellant/tenant was paying rent in the vicinity of $350-$380 per week, full market rent, although she may have been entitled to rebate of rent. In her statutory declaration and sworn evidence before the Appeal Tribunal the appellant/tenant stated that she was not able to service the debt, support her mother and repay the credit card debt she had incurred in her trip to the Philippines. At no time during the many adjournments of the matter before the Original Tribunal made the termination and possession order on 17 September 2012 did the appellant/tenant take positive steps to make regular payments and reduce the debt.

1. The appellant/tenant informed the Appeal Tribunal that she had been unemployed for some time. She had resigned her job on 10 January 2011 "due to becoming overwhelmed by the pressure of work, and stress as I did not get along with my new supervisor"[8]. The appellant/tenant was without income until June 2011 as she had failed to make an application for Centrelink benefits. The appellant/tenant stated she had received a lump sum payment of long service leave of approximately $12,000 which she lived on during this period and which had to cover her own costs, her son's costs and her mother's costs. She said she did not have enough money to properly maintain her rent.

1. The appellant/tenant gave evidence to the Appeal Tribunal that some of the period in which she was in arrears and failing to pay the rent her adult son was living with her and in receipt of income but she did not ask him to contribute to the rent "because it was his first job".

1. The appellant/tenant stated that she really wanted to keep the house, that this is a family home, and she felt safe there. The appellant/tenant did put in place a direct debit from her bank account and in her Statutory Declaration of 16 October 2012 she declared that she has obtained financial counselling and is in the process of preparing a budget to ensure that she can pay the rent and pay off the arrears. The Act requires, inter alia, the tenant to undertake to pay the rent as it falls due. A mere promise by a tenant to pay in the future is not, by itself, enough to satisfy the requirements of the legislation.

1. The Original Tribunal was entitled to take into account factors which go to the reliability of the appellant/tenant. It is necessary for the appellant/ tenant to do more than "promise to pay"; the Act requires more than the tenant's undertaking to pay; there must be evidence before that Tribunal that would allow it to be satisfied that the appellant/tenant is able to pay and intends to pay, for example, that the tenant has demonstrated a process by which payment will be made.

1. The Original Tribunal was satisfied that the appellant/tenant was not reliable: there had been many instances of her falling into arrears during the tenancy, she had consistently failed to complete the rebate forms, she had not been able to budget to make regular payments of rent or arrears, and she failed to take advantage of the many adjournments given, in the words of the Original Tribunal, 'to give the tenant a chance'. While it is admirable that the appellant/ tenant fulfilled her obligations to her mother, on her own evidence the trips to the Philippines were completed in May 2011; at no time since then has she demonstrated a commitment to her obligation to pay rent, nor did she take advantage of the opportunity afforded by the Tribunal to complete rental rebate forms. Had she applied for a rebate and been successful her capacity to repay the arrears and pay rent as it fell due may have been increased.

1. The Appeal Tribunal finds that the decision being appealed was not unreasonable; that the evidence before the Original Tribunal was insufficient for that Tribunal to form the opinion that the appellant/tenant was reasonably likely to pay the arrears and the rent; that any undertaking by the appellant/tenant was a mere promise made in the shadow of the eviction; and, that the appellant/tenant provided no reliable evidence of either the intention or ability to pay the debt. Both paragraphs 49(3)(a) and 49(3)(b) of the RT Act must be satisfied and given the facts before the Original Tribunal, that Tribunal did not form the necessary 'opinion' in relation to the tenant's capacity to pay required by paragraph 49(3)(a) of the RT Act.

The Second Ground of Appeal - Section 42A RT Act

1. In the written submissions dated 13 December 2012, page 1, Mr Emerson-Elliott submits that -

the second ground of appeal [is] that the Tribunal below did not have jurisdiction to hear an application for a Termination and Possession Order based on a breach of a Conditional Termination and Possession Order because the condition precedent that would enliven the Tribunal's jurisdiction, as required by section 42A(1)(c) of the [RT Act], has not been satisfied. Section 42A(1)(c) requires that before an application can be made for a warrant for eviction where a conditional order has been breached, the lessor must satisfy the registrar that 'the condition [in the conditional order] has been satisfied'. In this case the conditions in the conditional order had not been satisfied but had been breached."

1. The respondent does not accept this construction of section 42A of the RT Act. The respondent says that section 42A merely operates as a procedure by which a lessor who has been granted a conditional termination and possession order under sub-section 49(4) of the RT Act may apply for a warrant for eviction of a tenant.

1. Sections 42, 42A, 42B and 49 of the RT Act relevantly provide:

42 (1) This section applies to a conditional termination and possession

(2) The order expires on the date stated by the ACAT in the order.

(3) The expiry day must not be more than 1 year after the day the order is made.

(4) However, subsection (3) does not apply if the ACAT believes on

(b) it would be inappropriate to state an expiry day in accordance with

42A (1) A lessor may apply to the registrar for a warrant for the eviction of a

(a) the ACAT has issued a conditional termination and possession order; and

(c) the lessor satisfies the registrar that the condition has been satisfied; and

(d) the person to whom the order was directed continues to live at the premises.

_(2) On receiving an application for a warrant, the registrar must - _

(a) list the application for hearing before the ACAT not earlier than 1 week after the day the notice under paragraph (b) is given to the person; and

_(b) give notice to the person to whom the conditional termination and possession order is directed stating - _

(i) that an application for a warrant for eviction has been

(ii) the time when, and the place where, the application is to

(iii) that the person should seek legal advice about the

application if the person wants to continue to live at the

42B (1) An application under section 42A must be decided as if it were an application

under section 49 for a termination and possession order.

(2) After considering the application and hearing the parties who attend the

(3) If the ACAT allows the application, the ACAT must direct the registrar to issue a warrant for the eviction of the person.

_(4) If the ACAT dismisses the application, the ACAT may - _

(a) confirm the conditional termination and possession order; or

(b) make another conditional termination and possession order; or

(c) set aside the conditional termination and possession order.

_49 (1) On application by a lessor, the ACAT may make a termination and possession order if - _

(a) the tenant has failed to pay rent that has become payable under the residential tenancy agreement; and

(b) the lessor has served a termination notice on the tenant on the basis of the failure to pay rent; and

(c) the tenant has not vacated the premises in accordance with the notice.

_(2) If a lessor has made an application under subsection (1), the ACAT may refuse to make a termination and possession order if - _

(a) the tenant has paid any rent that has become payable and is, in

the ACAT's opinion, reasonably likely to pay future rent as it

(b) the ACAT considers it just and appropriate to do so.

(a) the tenant is, in the ACAT's opinion, reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable; and

(b) the tenant agrees to pay the rent that has become payable, and undertakes to pay future rent as it becomes payable, as required

_(4) Instead of making a termination and possession order under subsection (1), the ACAT may order (conditional termination and possession order) that if the tenant fails to pay the rent that has become payable, or future rent as it becomes payable, as required by the ACAT - _

(a) the tenancy terminates at a stated hour on the day after the day

when any rent becomes payable and is not paid; and

(b) the lessor becomes entitled to possession of the premises and

(a) the ACAT makes an order under subsection (1); and

(i) were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and

(ii) that hardship would be greater than the hardship that would be suffered by the lessor if the order wer suspended for the specified period;

the ACAT may suspend the operation of the termination and

possession order for a specified period of no more than 3 weeks.

1. Mr Emerson-Elliott further asserts that there is clearly an error in the drafting of sub-section 42A that cannot be 'cured' by use of the tools of legislative interpretation. He says that sub-section 42A(1)(c) should be written as follows:

'the lessor satisfies the registrar that the condition has not been satisfied'.

1. Because the section does not include the word 'not', Mr Emerson-Elliott submitted that the absurd, and 'incurable', result is that a lessor may only apply for a warrant if a tenant has satisfied the conditions of the conditional termination and possession order, but not when the tenant has breached the conditional termination and possession order.

1. The Appeal Tribunal does not accept Mr Emerson-Elliott's submissions in relation to the operation or effect of section 42A(1)(c) of the RT Act. Section 49(4) of the RT Act sets out that if the tenant does not meet the obligations imposed on the tenant by the Tribunal, to pay rental arrears and future rent, under section 49(3) then sub-section 49(4) operates so that:

1. the conditional termination and possession order operates to end the tenancy, pursuant to subsection 49(4)(a) on the day after the tenant's failure to pay the rent; and
2. pursuant to subsection 49(4)(b) the lessor becomes entitled to possession of the premises and all rent becomes immediately payable.

1. The lessor's right to make an application for the issue of a warrant under section 42A of the RT Act arises in the event that the tenant does not vacate premises as required by section 49(4)(b) of the RT Act.

1. If the tenant does not vacate the premises then the lessor may apply to the Tribunal for a warrant for the eviction of the tenant. Section 42A(1) sets out the circumstances when a lessor can make a section 42A application. That is:

1. The Tribunal had made a conditional termination and possession order which had not expired (sub-section 42A(1)(a) and (b)); and
2. The 'lessor satisfies the registrar that the condition has been satisfied' (sub-section 42A(1)(c)); and
3. The tenant continues to live in the premises (sub-section 42A(1)(d)).

1. Mr Emerson-Elliott asserts that the word 'condition' in sub-section 42(1)(c) is referring to the obligation on the tenant to pay rent and arrears as required by the Tribunal under sub-section 49(3)(b). However, the conditional order granted to the lessor under section 49 is a termination and possession order which is only 'activated' or 'triggered' -

"if the tenant fails to pay the rent that has become payable or future rent as it becomes payable, as required by ACAT".

1. If the lessor is able to satisfy the registrar that this has occurred, namely that the tenant has failed to pay rent or arrears as required, then the 'condition' of the conditional termination and possession order is satisfied and sub-sections 49(4)(a) and (b) operate. The tenancy terminates. If the tenant does not vacate the premises then the lessor may apply for a warrant under section 42A in order to obtain vacant possession.

1. If a conditional termination and possession order is in force and the tenant pays rent and rental arrears as required by the Tribunal pursuant to sub-section 49(3)(b), and the tenant otherwise meets the tenant's obligations under the tenancy agreement, then the tenancy continues and neither sub-section 49(4)(a) nor 49(4)(b) operates. There is no basis for an application by the lessor pursuant to section 42A of the RT Act for a warrant.

1. Section 49(4) is intended to operate as a 'self executing' order. The further intervention of the Tribunal, once a conditional termination and possession order is made, is usually only necessary when a tenant does not vacate the premises as required. Obviously, if a tenant does not agree with the lessor's assertion that the tenant has failed to pay rent as required by the Tribunal, then the tenant would resist the section 42A application on that basis and the Tribunal is able to make appropriate orders under section 42B.

1. In the current matter, if it is accepted that there was in place a valid conditional termination and possession order which had not expired as at the date of the respondent/lessor's application on 6 February 2012 or, at latest, when the 'corrected' application was lodged by the respondent/lessor with the Tribunal on 23 February 2012, then the registrar needed to be satisfied that the appellant/tenant had failed to pay rent as required. On the facts of this matter, given the amount of arrears at the time of the respondent/lessor's application ($6744.12) and notwithstanding payments made by the appellant/tenant from time to time until 17 September 2012 (when the arrears were $6324.62), there had been a failure by the appellant/tenant to make payments as had been agreed and set out in the conditional termination and possession order made on 28 September 2011.

1. This view of the operation of section 49 and section 42A of the RT Act is consistent with the decision of President Crebbin in the matter of Fisher and Commissioner for Social Housing in the ACT [2012] ACAT 32. In that matter President Crebbin accepted (at paragraph 26) the lessor's submission (at paragraphs 24 and 25) that :

"...Section 49(4) provides for the Tribunal to make an order such that if the tenant fails to pay rent that is payable, or rent that becomes payable, the tenancy will terminate on the day after the day that payment was due but not made. The 'condition' must be the failure to pay rent that has become payable. Section 49(4) and section 42A must operate in this way if the purpose of the law is to be given effect to, regardless of the way in which a particular order is expressed.

.... the [conditional termination and possession] order imposed an obligation on the tenant to avoid termination of the [tenancy] agreement by making specified payments. It contains the relevant condition namely, that the tenancy shall terminate unless the tenant complies with the requirements to make the specified payments. If the tenant does not meet the obligation, then the condition is satisfied and the termination follows. ...The [tenant] had not met his obligations under the order and therefore the condition upon which termination is found was satisfied."

1. The Tribunal can only make a conditional order under section 49(4) if it is able, under section 49(3), to be satisfied that the tenant is both willing and reasonably likely to meet a payment regime imposed by the Tribunal in relation to arrears and future rent. The obligation on the tenant to make those payments is imposed by the Tribunal in response to the lessor's application under section 49 for a termination and possession order. Under section 49(4) the Tribunal grants that order to the lessor, but the termination and possession order only operates to end the tenancy 'if the tenant fails to pay' rent and arrears 'as required' by the Tribunal following a consideration of the matters set out in section 49(3).

1. As mentioned above, if a tenant asserts that 'the condition' - namely that the tenant has failed to make payments as required - has not been satisfied, then this is certainly a matter that would be considered by the Tribunal in any application by a lessor seeking a warrant pursuant to section 42A. At the time of the application, however, the registrar may have been provided, by the lessor, with information that 'satisfies' the registrar that the tenant has, in fact, failed to make the necessary payments. At the hearing of the application, the Tribunal is obliged by section 42B(1) to consider the matters referred to in section 49. The tenant is, thereby, given the opportunity to raise matters which may be relevant to the Tribunal's decision and the power to make orders set out in section 42B.

1. In the current matter, provided the registrar was satisfied that the appellant/tenant had failed to make payments as had been required by the Tribunal at the time of making the conditional termination and possession order (sub section 42A(1)(c)), and that the respondent/lessor's application otherwise met the criteria of sub section 42(1), the application could be processed and the matter could be listed for hearing in accordance with section 42B.

1. The respondent/lessor, in the amended application of 23 February 2012, seeks the issue of a warrant pursuant to section 42A in relation to the conditional termination and possession order made on 28 September 2011. This application is based on the appellant/tenant's failure to make payments as required. The Tribunal's orders made on 17 September 2012 are the final orders made in relation to that application. It follows from the views expressed above, that the Appeal Tribunal considers that the Tribunal had jurisdiction to hear the respondent/lessor's application.

1. The Tribunal's role is to address the questions of fact or law that have been raised and if an error is found, the role of the Appeal Tribunal is to allow the Appeal and either correct the orders to reflect what the decision should have been at that time or refer the matter back to the original, or a newly constituted, Tribunal with or without directions.

1. Having considered all of the matters before it, the Tribunal is satisfied for the reasons set out above, and finds, that the grounds of appeal disclose no error in the Original Tribunal's decision on 17 September 2012.

1. As the appeal is unsuccessful the Tribunal will make orders confirming the decision of the Original Tribunal dated 17 September 2012 to terminate the appellant/tenant's tenancy and grant a warrant of eviction and in relation to the warrant of eviction being exercised.

Derek Emerson-Elliott - Welfare Rights and Legal Centre

[1] Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 8 May 2008, 1579

[2] paragraph 12, Respondent's Submissions, 8 November 2012

[3] Das v A & A Airconditioning Pty Ltd (Civil Disputes) [2011] ACAT 52 Acting President Chenoweth: "I do not

consider that the option of hearing an appeal as a new application under section 82(a) is one that should be adopted lightly.

The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the

previous decision; if that were so, there would be no point in the original hearing..."

[4] Appellant's submissions 18 October 2012, final paragraph

[5] Pesi v Commissioner for Social Housing in the ACT [2012] ACAT 61

[7] Page 12 Transcript 13 August 2012 lines 7-11

[8] Statutory Declaration Prescila Mangubat 16 October 2012 para.8