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[2011] ACTSC 11
Supreme Court of the ACT
2011-01-31
Original judgment source is linked above.
2. the applicant pay the respondent's costs of the application
3. the decision of the Tribunal be stayed for twenty-one days.
1. This is an application for leave to appeal from a decision of the ACT Civil and Administrative Tribunal (ACAT), made by Mr C G Chenoweth, acting Presidential Member, on 8 October 2010. Mr Chenoweth, in his reasons for decision, described the proceeding before him as an appeal against a decision by a Member of the Tribunal, dated 24 November 2009, terminating a lease by the present respondent to the present applicant. I have not seen the reasons for that earlier decision, nor have I seen reasons dated 11 March 2010 for orders made by Mr Chenoweth to protect the identity of witnesses. Both parties were represented before Mr Chenoweth, and, apparently without demur, the appeal was dealt with as if it were a new application, as may be done under section 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act).
2. Mr Chenoweth found that the tenancy agreement had been breached. He ordered that it be terminated at 4:00pm on Friday 22 October 2010, and made consequential orders for vacation of the premises.
3. The appeal was lodged on behalf of the applicant by Ms Dalley, supervising solicitor with Welfare Rights and Legal Centre Ltd. Ms Dalley appeared on the hearing of the application, instructed by Mr Emerson-Elliott, an employee of the Centre with carriage of the matter. Mr Emerson-Elliott swore an affidavit in support of the application.
4. On 22 October 2010, I granted a stay of the order of the Tribunal, subject to conditions which, so far as I am aware, the applicant has complied with.
5. Jurisdiction to hear and determine a tenancy dispute is conferred on ACAT by part 6 of the Residential Tenancies Act 1997 (ACT). That Act confers power to make the orders made by Mr Chenoweth. Section 86 of the ACAT Act provides that a party in the position of the present applicant may appeal to this court on a question of fact or law, but the appeal may be brought only with the leave of this court.
6. The application for leave is accompanied by a draft notice of appeal. The draft notice does not challenge any of the findings of fact below, but is limited to questions of law said to arise, being:
(a) Is a tenant vicariously responsible under clauses 70(b) and (c) of the Standard Residential Tenancy Terms set out in Schedule 1 of the Residential Tenancy [sic] Act 1997 for the actions of persons who are not on the subject premises and not under the control of the tenant at the time the actions are committed?
(b) Does clause 74(c) of the Standard Residential Tenancy Terms set out in Schedule 1 of the Residential Tenancy [sic] Act 1997 relieve a tenant of responsibility for the actions of persons who are on the subject premises without the consent of the tenant?
7. The notice of appeal goes on to submit that the questions should be answered (a) no and (b) yes, and that if those answers are given, the court should set the decision aside as wrong in law.
8. It will be necessary for me to set out a brief history of the matter, distilled from Mr Chenoweth's reasons. The premises comprise a residential aged persons' unit in a complex at Kambah. The units are in duplex pairs, in close proximity to each other but with separate fenced back yards or gardens. There are paths within the complex enabling people to move between the units and get to surrounding car parks and streets. The units are all let to persons eligible for public housing and eligible for the aged pension. Many of the residents are considerably older, and a number have significant medical problems. Officers of the respondent provide general support services to the residents, although all of the units are self-contained independent living units with their own kitchens and laundries. The applicant's unit is roughly in the middle of the complex.
9. On 23 April 2008 the parties signed a tenancy agreement commencing on that date, giving the tenant the right to occupation subject to payment of rent fortnightly in advance, with no termination date specified. The tenancy agreement included a schedule in the form of Schedule 1 to the Residential Tenancies Act 1997. Section 8 of that Act requires residential tenancy agreements to contain terms to the effect of the standard terms in the schedule. They are general to residential tenancies rather than specific to public housing or aged persons' units. Terms relevant to the present dispute are:
Tenant must not use the premises for illegal purposes and must
Tenant may be responsible for damage or other breach of tenancy
Termination of tenancy for breach other than nonpayment of rent
10. In a second attachment to the tenancy agreement, which I take to consist of standard clauses used by the present respondent additional to those in the schedule to the Act, the following clause appears:
The only persons who may reside at the Property are:
• The Tenants and other residents named in Item 1; and
• Any other dependants, boarders or other residents for whom the Housing Commissioner has given prior written permission.
The applicant was specified in the schedule of tenancy details in the agreement as the only tenant, and no other persons were listed as residents.
11. On 23 September 2008, apparently following complaints by a number of other residents of the complex, the respondent gave the applicant a "notice to remedy" alleging breaches of clause 70 of the agreement, and also referring to undeclared residents living at the premises. A further notice to remedy was served on the respondent on 29 April 2009, based on breaches of clauses 70 and 73 of the tenancy agreement and again referring to unauthorised residents. Proceedings were then instituted by the Commissioner in the tribunal. A notice of hearing having been served on the applicant, the Commissioner's application was heard on 13 August 2009. On 17 August 2009 an order under section 83 of the Residential Tenancies Act 1997 (was made, requiring the applicant to comply with clauses 70 and 73 of the agreement. There was no appearance by the applicant at the hearing. The Tribunal accepted unchallenged evidence of a number of disturbances in and around the property attributable to people associated with the applicant. Section 83 lists a number of orders available to the Tribunal, including orders restraining breaches of and requiring performance of residential tenancy agreements.
12. The order was served on the appellant on 17 August 2009. A further application was made on 14 October 2009, seeking a termination and possession order to have effect as a warrant, together with an order that the applicant comply with the tenancy agreement. This application came before a Member of the Tribunal on 24 November 2009. The Applicant attended. The Tribunal Member was satisfied that the previous order had been breached, and made an order for possession and termination, suspended for twenty-one days with liberty to the present applicant to apply. The appeal which came before Mr Chenoweth was instituted by the Welfare Rights and Legal Centre Ltd on 16 December 2009, through Mr Emerson-Elliott as advocate. Following the orders I have mentioned on witness confidentiality, the matter came before Mr Chenoweth on 16 and 17 August 2010. A number of residents of the complex gave evidence, in the absence of the present applicant but with Mr Emerson-Elliott present and able to cross-examine. It emerged that during September 2009 a number of the residents had signed a petition addressed to the Aged and Carer Advocacy Service within ACT Disability, evidently an instrumentality of the ACT Government. The assertions made in the petition were consistent with oral evidence which Mr Chenoweth accepted. He found that there had been a number of children and young people at the unit from time to time, with the applicant yelling and screaming at them to try to get them to leave her alone. A picture emerged of the applicant as a person who was challenged and helpless in the face of young people forcing themselves upon her. Some of the young people rode trail bikes through the complex. There was fear on the part of other residents of break-ins, robbery and vandalism. Some witnesses had had items stolen from their front gardens. Young people had been seen entering the applicant's unit with sleeping bags, pillows and sheets. Residents had been woken by screaming and yelling coming from the applicant's unit, including offensive words. There had been threats that residents complaining about the goings on at the applicant's unit might suffer repercussions. There had been frequent fighting and yelling from the unit, continuing throughout the night. Witnesses had seen young people leaving the unit, crossing the road and starting a fire, requiring attendance by the fire brigade. A young couple had been seen to leave the unit, cross the road and engage in sexual activity. There was evidence of young people drinking alcohol at the front of the unit, and of breaking of glass. Mr Chenoweth accepted that a number of the witnesses were fearful for their safety if they were identified as having complained or made statements to the Commissioner's office. Some witnesses said that the problems arising from the applicant's unit had had a significant effect on their health. During the hearing, one of the residents suffered some kind of stress attack at the Tribunal's offices, after which the advocate for the applicant agreed with counsel for the Commissioner that the remaining witness statements could be admitted into evidence without their makers being called to give oral evidence, with such probative value as the Tribunal considered appropriate.
13. An officer of the Commissioner's office gave evidence of an extensive history of complaints about the applicant and her unit, consistent with the evidence from the residents. Staff of the Commissioner had attempted to find more suitable accommodation elsewhere for the applicant, often at her request. The officer acknowledged that things had been calmer recently at the complex.
14. The applicant gave evidence in which she denied that the incidents complained about had been as serious as was claimed. She said that the young people who had been causing trouble had moved on, following directions made to them by her son. She was cooperating with efforts by staff of the Commissioner for a transfer to a bigger home where her son could live with her and care for her.
15. As he was entitled to do, Mr Chenoweth preferred the evidence given in the Commissioner's case to that of the applicant. He found that the conduct complained of had occurred, and that the applicant either condoned it or was unable to take the steps necessary to prevent it. There was no indication that she had ever called the police herself. Her failure to do so, or to take other effective steps, had led to a significant loss of amenity for other residents in the complex. Over a substantial period of time the applicant had permitted her unit to be the site of a significant nuisance to other occupants of the complex. There had been under-age drinking on her premises, and damage to the unit. There had been an atmosphere of threat to the other residents, generated to some extent by visitors to her unit, amounting to a breach of clause 70 of the agreement. The conduct of the people gathering at the unit and surrounds was attributable to the applicant under clause 73.
16. Mr Chenoweth went on to consider whether the breaches justified the termination of the tenancy. He said that he had regard not only to the evidence of the witnesses but also to the nature of the complex. The effect of such breaches was greater on a group of older people living in a complex designed specifically for them, and where their age, medical condition and general insecurity made them more vulnerable to behaviour which in other contexts might not warrant termination. Taking those considerations into account, the breaches justified the termination of the tenancy.
17. He was not able to conclude that there had been a breach of the additional term 1 (Persons who may live at Property). He was not satisfied that other persons had resided at the property, as opposed to spending the occasional night there. He noted that a number of the other tenants of the complex may have had members of their families or friends to stay overnight, without those persons residing at the premises.
18. Mr Emerson-Elliott's affidavit in support of the application went to matters relevant to whether or not I should grant a stay of the Tribunal's orders pending my decision on the leave application, but was not relevant to the application for leave itself.
19. The applicant, whilst accepting the findings of fact by the tribunal, challenges the step by which the tribunal concluded that those facts established breaches of clause 70 of the tenancy agreement, read in conjunction with clauses 73 and 74. Specifically, the applicant challenges the conclusion of the tribunal that she permitted nuisance, and that she permitted interference with the quiet enjoyment of the occupiers of nearby premises. She submits that the factual findings do not lead to the conclusion that the conduct of the persons at and in the vicinity of her unit was permitted by her.
20. She further submits that the Commissioner did not satisfy the onus of proving to the tribunal that those persons were on the premises with her consent. Further, she says that much of the conduct complained of did not take place within the boundaries of the property of which she was the tenant, although it may have taken place on common areas within the complex. Some of it seems to have taken place "across the road" which would place it outside the complex, although visible and audible from it.
21. As to the submission about clause 70 of the tenancy agreement, it seems to me that Mr Chenoweth made a finding of fact that the applicant had permitted nuisance and permitted interference with the quiet enjoyment of the occupiers of nearby premises. These, it seems to me, were findings of fact rather than conclusions of law.
22. It does not seem to me that the conclusions of the tribunal were dependent on clause 73. I accept that that clause applies only to visitors, guests and other people physically within the tenanted property. The word "premises" is not defined in the tenancy agreement but is used throughout attachment A in a way which is consistent only with that intended meaning. In the Commissioner's additional terms, specific reference is made to aged persons' units, flats and townhouses where there will generally be common property as part of a complex. Specific requirements are imposed upon tenants of such properties, and a set of "rules of the complex" are also attached to the agreement. Clauses 73 and 74 must be construed as having been drafted by or on behalf of the Commissioner and must be read as limited to the tenanted area. Those clauses are therefore relevant to some of the conduct complained of but irrelevant to a large part of that conduct. They do not seem to me crucial to the determination of the dispute between the parties.
23. The tribunal found that, within the meaning of the wording of clause 70, the applicant permitted nuisance and permitted interference with the quiet enjoyment of the occupiers of nearby premises. Those findings were consistent with the facts found by the tribunal. I am in no real doubt about the correctness of the decision of the tribunal.
24. There is little authority as to the principles to be applied in considering an application for leave to appeal from the tribunal. The issue arose in Classic Constructions (Aust) Pty Ltd v Conservator of Flora and Fauna [2005] ACTSC 103, an application for leave to appeal to this court from the Administrative Appeals Tribunal, a predecessor of the present Tribunal. The Administrative Appeals Tribunal Act 1989 (ACT) was initially in virtually identical terms to the Administrative Appeals Tribunal Act 1975 (Commonwealth), which provided for an appeal as of right to the Federal Court of Australia, limited to a question of law. The ACT Act was amended to require a grant of leave for an appeal. I noted the parallel to appeals from an interlocutory order made by a single judge, which in most jurisdictions lie only by leave. I referred to the guidelines formulated by the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431. It has since been doubted whether the court in that decision intended to lay down guidelines at all: see for example Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397. More recently the principles were set out in some detail by Refshauge J in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44. However, the principles governing the grant of leave to appeal from an interlocutory decision are not necessarily fully applicable to an application for leave to appeal from the Tribunal. Decisions of the Tribunal will frequently have determined substantive rights between the parties. I noted in Classic Constructions that the Administrative Appeals Tribunal had in common with the then Small Claims Court the characteristic that many matters coming before it involved self-represented parties. It could be assumed that often the losing party would have an understandable sense of grievance and might be less than entirely objective about the prospects of an appeal succeeding. This suggested that the legislature saw the requirement for leave as a useful filter to relieve the court and the parties of the time and expense which might be lost if an appeal with minimal prospects were able to brought without leave. I noted the dicta of McGarvie J in McKenna v McKenna [1984] VicRp 58; [1984] VR 665, in which his Honour warned of the danger of developing a formula from earlier decisions as to the exercise of a judicial discretion, and the importance of retaining the flexibility which the law conferred on the judge called upon to exercise the discretion.
25. One of the principles which Refshauge J listed as applicable to an application for leave to appeal from an interlocutory decision was that generally the applicant bears the onus of satisfying the court that the decision sought to be appealed from is attended with sufficient doubt to warrant reconsideration on appeal and that substantial injustice would result if leave to appeal were refused.
26. Whilst an appeal to this court is not limited by the legislation to a question of law, the draft notice of appeal does not challenge any of the findings of fact of the Tribunal, and it does not appear to me from a perusal of the reasons that there would be any prospect of a challenge to the findings of fact succeeding.
27. The questions of law set out in the draft notice of appeal would not in my view be determinative of the appeal. That is to say, the answers to the questions urged on behalf of the applicant (no to the first question and yes to the second) would not demonstrate that the decision of the tribunal was wrong in law.
28. I am not persuaded that there is any real doubt about the correctness of the decision of the Tribunal. It follows that I am not persuaded that the decision is attended with sufficient doubt to warrant reconsideration on appeal.
29. Leave to appeal will accordingly be refused. The application will be dismissed with costs.
30. I note that the Tribunal has adopted a practice of giving the applicant twenty-one days to vacate the premises. I take account of the fact that the applicant is an elderly person eligible for public housing, and thus presumably of limited means. I also take account of the respondent's position as the provider of public housing in the ACT. A further consideration is that the stay which I granted in October 2010 was subject to liberty to apply on twenty-four hours' notice, and that no application has been made, from which I infer that the vacation of the premises by the applicant is not a matter of such urgency that it cannot wait for another three weeks.
31. I accordingly extend the stay of the decision of the Tribunal, on the same terms as previously, for twenty-one days from the date of publications of these reasons.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Solicitors for the applicant: Welfare Rights and Legal Centre
Solicitors for the respondent: ACT Government Solicitor
Lucas
Commissioner for Social Housing for the ACT [2011] ACTSC 11
(2008) 2 ACTLR 44
(1991) 33 FCR 397