Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 8, 26, 79, 82

Human Rights Act 2004 ss 12, 28, 30, 40, 40B, 40C

Legislation Act 2001 ss 137, 138, 139

Residential Tenancies Act 1997 ss 41, 47, 48, 51, 53, standard terms 23, 47, 70, 83, 93, 94, 96

Cases cited: Campbell v Blackshaw & Evans [2017] ACAT 64

Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74

Commissioner for Social Housing in the ACT v "A" [2015] ACAT 13

Commissioner for Social Housing in the ACT v Massey [2013] ACAT 41

Commissioner for Social Housing v Cook [2020] ACAT 36

Commissioner for Social Housing v Jones [2016] ACAT 75

Commissioner for Social Housing v Lysle [2016] ACAT 26

Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43

Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52

Edwards v Noble [1971] HCA 54

Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48

Hill v Council of the Law Society of the ACT [2020] ACTCA 3

House v R [1936] HCA 40

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Little v Commissioner for Social Housing [2017] ACAT 11

Mansour v Dangar [2017] ACAT 49

NSW Police Force v Newby [2009] NSWCCPD 75

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

R v Fearnside [2009] ACTCA 3

R v Lee [2016] ACTCA 69

Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149

Thornthwaite and Commissioner for Social Housing [2012] ACAT 11

Warren v Coombes [1979] HCA 9

List of

Texts/Papers cited: The Community Law Reform Committee of the Australian Capital Territory, Private Residential Tenancy Law (Report No 8, 1994)

Explanatory Statement to the Residential Tenancies Bill 1997

Residential Tenancies Law: Summary of Recommendations [1994] ACTCLRC 8

Date of Reasons for Decision: 13 September 2021

APPEAL TRIBUNAL: Presidential Member H Robinson

1. The tribunal having determined to dismiss the appeal, the parties are invited to make submissions on the form of orders to be made, having regard to the Residential Tenancies (COVID-19 Emergency Response) Declaration 2021 (No 3) as follows:

(a) The appellant is to file any submission and any evidence to be relied upon in support of that submissions, by 20 September 2021.

(b) The respondent is to file a submission and any evidence to be relied upon in response by 27 September 2021.

(c) The matter will then be finalised in chambers, subject to the matter being listed if the Tribunal considers it necessary to do so.

(d) If the no further submissions are received from the appellant by 20 September 2021, orders will be made shortly thereafter.

1. This is an appeal by a tenant (the tenant) against the decision of the tribunal in Argyle Community Housing Ltd v Pye (RT 784 of 2020) (original decision) terminating the tenant's residential tenancy agreement with the respondent, Argyle Community Housing Ltd ACN 002 761 855 (Argyle or Argyle Housing).

2. The tenant is an older man with significant physical disabilities.

4. On 2 March 2015 the tenant entered into a residential tenancy agreement (the agreement) to rent a property (the property) from Argyle Housing. As is required by law, the agreement incorporates the Standard Residential Tenancy Terms (standard terms) found in Schedule 1 to the Residential Tenancies Act 1997 (RT Act).

5. The property is located in a complex of villas designed for older social housing tenants. The uncontested evidence is that the property has undergone modification to account for the tenant's disabilities.

6. On 27 May 2020 Argyle Housing served three notices on the tenant, as follows:

(a) A 'termination notice' requiring that the applicant give vacant possession of the premises on or before 25 November 2020 (the 26-week notice).

(b) A "breach of your residential tenancy agreement (non-rent)" notice issued for an alleged breach of clause 70 of the standard terms in relation to certain conduct "resulting in a personal protection order" being taken out by another tenant.

(c) A "breach of your residential tenancy agreement (non-rent)" notice issued for alleged anti-social and other behaviours in breach of clause 70 of the standard terms (the breach notices).

7. The 26-week notice was issued pursuant to clause 94 of the standard terms). Under that clause, a lessor may terminate a tenancy "without cause" by providing the tenant with a written notice requiring the tenant to vacate the property prior to the expiration of a 26-week notice period. If a tenant who receives such a notice does not vacate the premises in accordance with it, the lessor may bring an application for a termination and possession order under section 47 of the RT Act.

47 No breach of standard residential tenancy terms

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

(a) a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and

(b) the lessor has served a termination notice on the tenant based on that ground; and

(c) the tenant has not vacated the premises as required by the termination notice.In summary, section 47 of the Act provides for termination where there is no breach of the standard terms, but another ground exists under the standard terms.

(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 were 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.

9. The 'breach notices' were notices to remedy issued for the purposes of clause 93(a) of the standard terms. The standard terms provide that if a tenant fails to remedy a breach notice within two weeks, the lessor may issue a termination notice and, if the tenant does not comply, may apply to the tribunal for a termination and possession order pursuant to section 48 of the RT Act.

48 Certain breaches of standard residential tenancy terms

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

(i) the tenant has breached the standard residential tenancy terms (other than by failing to pay rent that has become payable); and

(ii) the lessor has served a termination notice on the tenant based on the breach; and

(iii) the tenant did not vacate the premises in accordance with the notice; and

(iv) the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the ACAT; and

(v) the breach justifies the termination of the tenancy; or

(ii) is satisfied that the tenant has breached that order; and

(iii) is satisfied that the breach justifies the termination of the tenancy.

_(2) The ACAT may, if satisfied that it is appropriate and just to do so in relation to an application mentioned in subsection (1) - _

_(a) refuse to make a termination and possession order if - _

(i) the tenant has remedied the relevant breach; or

(ii) the tenant undertakes to remedy the breach within a reasonable specified period and is reasonably likely to do so; or

_(b) make a termination and possession order but suspend it for a period of no more than 3 weeks if satisfied that - _

(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 were suspended for the specified period.

_(3) For subsection (1) (a) (i), if the application is about the use of premises for an illegal purpose, the ACAT must also be satisfied that - _

(a) the tenant has used the premises, or permitted the premises to be used, for an illegal purpose; and

(b) the illegal use justifies the termination of the tenancy.

(4) For subsection (3), the matters the ACAT may consider include the following:

11. Unlike section 47 of the RT Act, section 48 of the RT Act expressly requires that the tribunal consider whether the breach justifies termination of the agreement.[1]

12. The interaction of sections 47 and 48 of the RT Act is one matter that arises in this appeal as the tenant says that the use of section 47 is inappropriate or impermissible where a ground exists under section 48 of the RT Act.

13. Turning back to the notices in this case, both the 26-week notice and the two breach notices were served upon the tenant at his residence under the cover of a letter that read:

It has come to my attention that you have breached your residential tenancy agreement on more than 3 occasions during 2020. As a result of these breaches Argyle Housing will be issuing you with a Notice of Termination. If you do not remedy your behaviour over the next 26 weeks, which is the notice period served on you today 27/05/2020, then Argyle may need to take action with the ACAT to end your tenancy sooner.

14. The tenant agrees that he received all three notices and read them. He did not look for another property or take any action in relation to the notices until he sought legal advice in early November 2020. There is some dispute between the parties as to what steps, if any, Argyle Housing took to assist him, and also what steps it should have taken as a community housing provider.

15. The tenant did not vacate the property in accordance with the 26-week notice. Accordingly, on 25 November 2020 Argyle Housing lodged with the tribunal an application for a termination and possession order under section 47 of the RT Act.

16. Argyle lodged the application for a termination and possession order on the standard tribunal form entitled "Application for Resolution of a Dispute under the Residential Tenancies Act 1997". On that form is a text box headed "what is the dispute about? Please set out a brief history of the dispute (attach page if insufficient space)". In that text box, Argyle Housing wrote:

Mr. Pye has repeatedly refused Argyle staff access to the unit to conduct routine inspections which is a breach of his tenancy agreement.

Mr. Pye has also been verbally and physically threatening toward Argyle staff and other residents within the complex.

Previously there was a Tribunal order ... Mr Pye has broken the orders on several occasions. Previous Tribunal hearing documents have been included for your reference.

Repeated anti social behaviour. Continuing since last ACAT application.

Violence and threats to Argyle staff and other tenants.

One tenant has a PPO against Mr Pye due to his threats to her...

17. A bundle of material about the alleged breaches was attached to the application form, including a significant amount of material that related to a previous proceeding before the tribunal. As best I can tell, the relevant notices were not attached to the application form.

18. On 14 December 2020 the tenant's solicitor, Canberra Community Law, filed a notice of representation and supporting documents, primarily going to the tenant's medical circumstances and the hardship he would suffer were his tenancy to be terminated.

19. On 16 December 2020 Argyle filed and served copies of the notices, as well as a copy of the personal protection order referenced in the first breach notice and an email complaint that was the basis for one of the breach notices.

20. The application was first listed for hearing in the tribunal's termination and possession list on 17 December 2020.

21. By way of background, the termination and possession list is a busy 'running' list typically with at least a matter an hour. Proceedings are often informal, and decisions are usually given orally, as the decision was in this case.

22. At the first instance hearing, the tenant's solicitor, understandably given the circumstances, stated that it was unclear what case the respondent had to meet. Argyle's representative clarified that the application was brought on the basis of the 26-week notice.

23. The tenant's solicitor then argued that the matter should be dismissed because:

(a) the 26-week notice should not have been served with the 'breach' notices, and doing so created confusion as to what the tenant should do to maintain his tenancy; and

(b) the tribunal could not exercise its discretion to terminate the tenancy without considering the 'severe breach' of the tenant's right to privacy and home as provided for in section 12(a) of the Human Rights Act 2004 (HR Act).

24. The Senior Member who presided at the first hearing determined that the matter was not ready for the hearing, and made directions and adjourned it to a further hearing date.

25. The hearing proceeded on 17 February 2021 (second hearing) before a differently constituted tribunal.

26. At the commencement of the second hearing, Argyle's advocate, Ms Renetta Miller, confirmed again that the application was for a no cause eviction in reliance on the 26-week notice. She explained that the submission of the additional material was "an error"[2] and "for transparency of the tenancy".[3]

27. The tenant's solicitor submitted that the 26-week notice was affected by error from the commencement of the process, and needed to be seen in the light of the breach notices served at the same time:

...on the notice and in the letter accompanying the notice are words that indicate that he has six months to rectify his behaviour and, in fact, that's what [Argyle's representative] said at the last hearing of this matter, that this was an opportunity for Mr Pye to rectify his behaviour. So it's not as simple, in my submission, as saying, 'Well, we put in one notice,' which is totally fine, but on the other hand, 'We have issued three notices to remedy,' which I would argue are also invalid if they were for the purposes of a for [sic] cause of section 48 application.

It's a matter of procedural fairness and natural justice for the respondent to be able to respond to the case that is put and in this case it's impossible to tell which way they are intending to go when, on one hand, they are saying, 'Well, we have no cause. We only have to put in this no cause application,' and on the other, 'We're going to make you prepare a case to defend your tenancy on the basis of very serious criminal offending' - - - [4] [errors in original]

28. The Senior Member agreed the situation was problematic:

It's a mixing of a no cause notice with a remedy, the notice to remedy, and the application itself makes no reference to the no cause notice.[5]

29. Accordingly, the Senior Member asked Argyle why the 26-week notice was served at the same time as the breach notices. Argyle's representative explained the situation as follows:

...I believe their intention for that was obviously to serve the no grounds, to action the breaches and then potentially, if the breaches weren't remedied, to look to applying to ...ACAT,[6]

And that [the no grounds notice] was separate to the two breach notices but then obviously if breaches weren't resolved then prior to the termination of the 26 weeks that we would then be pursuing under those breaches.[7]

30. What is apparent from this concession by Argyle, as summarised by the Senior Member, is that Argyle had decided to terminate the tenancy, one way or the other. One option was the 26-week notice process, which they intended to pursue in any case, and the other was by taking action on the basis of the alleged breaches of the tenancy agreement if the matters did not resolve sooner. Presumably, this is what the was meant by the words in the cover letter that said "If you do not remedy your behaviour over the next 26 weeks, which is the notice period served on you today 27/05/2020, then Argyle may need to take action with the ACAT to end your tenancy sooner."[8] However, the language of the notices and the covering letter was not as clear as it could have been. The tenant may well have been left with the impression that he was being given a final warning rather than facing an inevitable termination of this tenancy.

31. Following from this, the tenant's solicitor further submitted that the inclusion of the breach notices and the additional evidentiary material in support of them (the breach material) made the application before the tribunal in substance an application for termination on the 'ground' of an alleged breach of the standard terms for behavioural related reasons. She submitted that Argyle Housing's reliance upon section 47 in those circumstances was inappropriate because it did not allow the tenant an opportunity to contest the allegations of breach of the agreement.

32. The tenant's solicitor then went a step further. She also argued that sections 47 and 48 of the RT Act operate in such a way as to effectively prohibit the bringing of an application for termination under section 47 where the substance of the application is that the applicant has 'breached' the standard terms:

It's a nonsense to say that this is an application to terminate without cause given the huge volume of material seeking to impugn Mr Pye for a breach of section, [sic] clause 70 of the standard residential tenancy terms and that's why section 47 comes into play where it says you can't actually rely on that when your notice to vacate is on the basis of section 47.[9]

33. Clause 70, referenced in her submissions, provides that a tenant must not cause or permit a nuisance[10] or interfere with the quiet enjoyment of the occupiers of nearby premises.[11]

34. The relevant provision is section 47(1)(a) of the RT Act, which provides that:

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

(a) a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); [emphasis added]

35. As I understand the tenant's solicitor's position, it is that section 47(1)(a) effectively prohibits section 47 from being relied upon in circumstances where a 'ground' for termination for breach of the standard terms exists or where, as here, the lessor considers that the tenant has breached the standard terms, and that is a reason for wanting to terminate the tenancy.

36. The Senior Member did not accept this submission:

Well, section 47 doesn't actually say that either. It says, 'ACAT may make a termination and possession order,' on application by a lessor, 'if satisfied that a ground for termination exists under the standard residential terms (other than for a breach),' and although that's very convoluted, it's the serving of the 26 weeks' notice. They have served the notice. The tenant has not vacated and we can make an order.

When dealing with a no cause termination then we don't have to look at anything about whether the tenant has paid rent, damaged the property or behaved himself in any other way, shape or form, but only if there are issues raised by the tenant to ask the tribunal to exercise it's not unfettered discretion under section 47 because of the word 'may,' and it would seem to me that the appropriate thing would have been that if the tenant was to raise that then the landlord should address the issues and only at that point.[12]

37. As the hearing progressed, the Senior Member then went on to state that she accepted that the documentation related to previous proceedings was "background...not evidence of a current breach"[13] and that was how she was treating it. The question before her was whether the requirements of section 47 had been satisfied.

38. There was some further discussion between the parties, and then the tribunal concluded that she was satisfied that the application was based solely on the 26-week notice:

Well, let me say this, that I accept that the application is based solely on the no grounds notice. Now, provided the tenant indicates to me that they agree that that is a valid no grounds notice then I think the appropriate thing is to have a hearing based on the no grounds notice and that would mean that the tenant gets an opportunity make submission to me about why I should exercise my very limited discretion to refuse a termination and possession order in this case and then the applicant should respond to that.[14]

39. However, the Senior Member also accepted that the circumstances under which the application was made did raise human rights issues under the HR Act, including procedural issues, that needed to be properly considered:

Okay. Well, look, I think that the way forward on this is for us to deal with this as a no cause termination. The respondent tenant has made submissions as to why they say this application should be dismissed and that's in - there's a number of things in there. One is the tenant's disability. The other is some human rights issues, but the third, and for me the most important one, is whether or not this is a valid notice because of the way it's been mixed in with a breach, and I understand the reasons why the landlord has served multiple notices to remedy but these things were all served at once and it looks like what you have served is a hybrid notice to remedy and notice to terminate if you don't remedy, and certainly the letter would indicate that this is, in fact, not a no cause application. It's an application for cause. So I think that's what you need to address.[15]

40. The second hearing was then adjourned so these issues could be properly addressed on another occasion. Before doing so, the Senior Member gave Argyle Housing leave to formally amend the application to clarify the basis upon which the orders were sought. However, I am satisfied that this was a matter of form only, given that the Senior Member had made it clear she accepted that the application was being brought under section 47, following upon the issuing of a 26-week notice under clause 94.

41. Argyle filed an amended application and submissions on 1 March 2021. Attached to these submissions are documents entitled "response to discrimination complaint" and a "chronology of his tenancy" (chronology). These appear to have been prepared in response to a complaint under the Discrimination Act 1991. The submissions reiterate that the breach material was filed "in error"[16] by a tenancy officer who was "under the assumption that the entire tenancy history needed to be submitted for transparency."[17] The chronology summarises the issues arising in the context of the tenancy, including complaints allegedly received about the tenant.

42. The matter came back before the same tribunal on 18 March 2021 (the third hearing).

43. On that occasion, the Senior Member identified the issues as: "whether there was a valid notice of termination based on no ground issued under the legislation and the residential tenancy agreement",[18] and how the tribunal should exercise the "very limited discretion"[19] that section 47 gives it and decline to make a termination and possession order because of the tenant's particular circumstances.

44. As at the third hearing, the parties appear to have accepted that the 26-week notice complied with the RT Act, at least in terms of the form. The question was more whether the circumstances of its service were unjust or a breach of natural justice, which the Senior Member considered raised human rights concerns.

45. The tenant's solicitor alleged that the way Argyle Housing had notified the tenant of the eviction, with the 26-week notice coupled with breach notices, was contrary to the principles of natural justice and procedural fairness and was inconsistent with his protected human rights because he could not understand the case he needed to meet.

46. The appellant's solicitor also made submissions on the application of the HR Act, the tenant's rights under that Act, and the "severe and disproportionate"[20] consequences for the tenant of the eviction, which she contested would be contrary to his human rights. In particular, she noted the tenant's medical history and disabilities, and the difficulty the tenant would have in sourcing appropriate, disability friendly accommodation. I have read those submissions but for privacy reasons I do not intend to detail them here. The tenant's solicitor also referred to the chronic shortage of social housing and the likely period of months the tenant may need to wait for a new house. The Senior Member made it expressly clear in her reasons that she accepted the evidence that the termination would have "severely adverse"[21] and indeed "catastrophic"[22] effects on the tenant.

47. The Senior Member then asked the tenant's solicitor about whether, and how, the tribunal should take into account the broader circumstances of the tenant's tenancy, including the alleged breaches and interaction with other tenants. The discussion was as follows:

SENIOR MEMBER: Okay. And, Ms Palk, do you say that I should also take into account the effect of the continuing tenancy on other people living in this complex? So - - -

MS PALK: That's not before you, member. That is not - - -

SENIOR MEMBER: Well, if I'm taking into account all the circumstances, then I'm taking into account all of the circumstances, and one of the explanations that is made in the submissions is that this 26‑week notice on no grounds was what was seen by Argyle as the most efficient way of bringing to an end a difficult and troublesome tenancy.

It's a [sic] very rare that a no ground notice actually has no ground. It's just that the law doesn't require an explanation and it doesn't ask me to test that explanation, but if I'm going to take into account all of the circumstances, surely that is something I have to take into account, not just the impact on Mr Pye.

MS PALK: Well, I would submit that you're not at liberty to do that because section 48 provides a mechanism by which that ought to have occurred and which we argued strenuously at the last hearing it should have occurred if the tribunal was going to take those additional matters into account. So - - -

SENIOR MEMBER: But you're not telling me that I can't take into account any information by way of background if that information is adverse to Mr Pye, otherwise what I've got is I've got a no grounds cause and there will be an automatic termination. Surely there has to be a balancing of things. So you have raised the issue of whether there's any detriment to the lessor. I'm entitled to ask them what would be the detriment to them and their daily operation if the tenancy is sustained. Would you agree with that?

MS PALK: I agree that the tribunal has the discretion to take into account all of the circumstances, but my argument would be that in - and it's your discretion, but part of that consideration ought to be that there was another way that Argyle had at its disposal that it could have sought to terminate the tenancy if it sought to terminate it on the basis of misconduct. It specifically stated in their response that it was requested after the last hearing that they do not rely on any of that material.[23]

48. These submissions go to the crux of this appeal - what material should properly have been before the original tribunal and considered by it, and how can procedural fairness be provided in circumstances where untested allegations are made?

49. The Senior Member then heard evidence from a representative of Argyle Housing as to the impact on it of a decision not to evict the tenant. In doing so, she summarised, for Argyle, the application, including the reference to "a complex and very difficult tenancy"[24] and "verbal abuse, intimidation, harassment and threats"[25] to staff and fellow residents, "many of whom are vulnerable".[26] The Argyle Housing representative agreed with this summary. The Senior Member had reference to the 'high level' chronology prepared by Argyle Housing in constructing this summary.

50. For his part, the tenant denied that there were any issues with the tenancy and made some representations denying some of the allegations. He did not, however, respond to the allegations in the chronology in any detail and nor was he given an opportunity to. The allegations were not examined in detail.

51. At the conclusion of the third hearing, the Senior Member made orders terminating the tenancy and granting vacant possession to Argyle. She stayed those orders for the maximum three weeks until 8 April 2021. The Senior Member then delivered an ex tempore decision. Her reasons, in full, are as follows:

So I have a discretion under section 47 of the Residential Tenancies Act in relation to whether I will grant the relief sought by the applicant or not. I need to remember that the residential tenancy agreement in the ACT sets out a mechanism by which landlords may lawfully terminate a tenancy for no grounds or for no cause upon the servicing of a 26‑week notice to quit, and I have to keep in mind that that is a scheme set up by the legislature.

Whatever we might think about it, it exists and it exists not just in this jurisdiction but in most jurisdictions around Australia that a landlord may terminate a tenancy upon the giving of a sufficient amount of notice for no grounds in certain circumstances, and those circumstances are that they have served a valid notice and that the tenant has not vacated.

The word used in section 47 is 'may', which gives the tribunal a discretion to either grant or refuse to grant the remedy that's being sought. It is acknowledged in the case law that this is a fairly narrow discretion and it has to be applied after examining all the relevant circumstances. They are the circumstances that are put forward by both the applicant and the respondent.

Important issues that have been put forward by the tenant really - I accept what Ms Palk and Mr Pye have said, that this would be catastrophic for the tenant. I understand that he has quite specific needs which arise from both a deteriorating physical illness and the associated mental health issues that surround that.

I accept and I understand that he has lots of support in the area and that he has social, personal and medical support available, and I also note that he has had quite a lot of support through NDIS funding. I also accept that he is likely to be homeless for a long period of time and I know that there's a crisis in social housing and I think that Mr Pye's particular needs, because of the need for disability support, would probably mean that he would have at least a 12‑month wait for new premises, but I am entitled to take into account other factors.

I note that Argyle Housing has not relied on any of the specific breaches alleged to have been committed by the tenant and there is no evidence before me of any of those specific breaches that he is able to respond to, although I also note that Mr Pye has had some comments to make about that. I treat the notion that there have been breaches that justify termination not just with caution, I reject them. I'm not here to determine whether there is a breach that justifies termination. I'm here to determine whether, in all the circumstances, I should exercise my discretion in the applicant's favour or in the respondent's favour.

I understand that there is no immediate prospect of living with a family member because of the disabilities and physical needs of both the tenant and his daughter who lives nearby. I also, however, take into account the submissions made by the lessor and they range across a number of things, one is that this has been a difficult to manage tenancy, and I take that at face value. They say it is difficult without going into any of the details but that there are complaints from other tenants and that there is an ongoing difficulty in communicating with this tenant, but I note that both the tenant and his legal adviser reject any assertion of those difficulties.

I also note that these are over‑55 units and not specifically designed with persons with disabilities, so that there may come a time when [they] wouldn't be suitable for the tenant in any event, but I think the important thing is not whether they are units for persons with disabilities but they are for over‑55 units and I accept that the lessor would have some fairly complex issues dealing with tenants who are ageing; not just because we all get cranky as we get cranky [sic] as we get older, but there would be other physical and personality difficulties to be managed.

But I also note that it is now almost 300 days since the notice to vacate was served well past the vacation date of 25 November and the tenant has conceded that he took no action to find alternate accommodation or to react to the termination notice. He says he just was handed the documents and he really didn't look at it. He says that he hasn't done anything and he's only recently sought advice for both legal issues and from his support worker.

The landlord has given me evidence that the tenant had been aware of this because it was explained to him at the time, but I note that the tenant rejects that. I also note the lessor's view that communications between themselves and the tenant became hostile and difficult when they tried to discuss him finding alternate accommodation, but that simply goes to underline, I think, their submissions that this is a difficult tenancy.

I do accept that the tenant was surprised at the end of October to find that termination was being sought, but you can't wilfully ignore letters and termination notices that are given to you and expect that that will be a good enough reason to avoid termination.

In all the circumstances, and particularly putting emphasis on that this is a process that's provided for within the scheme of the Residential Tenancies Act and the residential tenancy agreement, and that there are adverse effects upon this tenant but none that would justify me refusing the application for termination and possession, however, in these circumstances I think it would be appropriate to suspend for the maximum period of time, that being three weeks from today, the termination and possession order, and also to put the onus on the applicant to make an application for a warrant for eviction if things cannot be sorted out between the parties.

So I'm terminating the tenancy at 4 o'clock today and ordering the tenant to leave the premises at 4 o'clock today, but I'm suspending that order, plus the order that gives the lessor leave to seek a warrant for eviction, for a period 21 days, and I make no other orders.

Okay. Thank you for your time, everybody.[27]

52. The appeal is brought pursuant to sections 79 and 82(b) of the ACAT Act.

53. While the application for appeal raised five grounds, in substance the appeal raises three issues, which the tenant's submissions condensed as follows:

(a) Whether permitting the respondent to rely on untested 'breach' material in a section 47 'no cause' application was contrary to principles of procedural fairness and natural justice and the evidence was therefore outside the scope of the tribunal's discretion (ground 1).

(b) Whether the tribunal's decision to make the termination order under section 47(1) of the RT Act was clearly wrong, or it was otherwise unreasonable or unjust (grounds 2 and 3).

(c) Whether the tribunal failed to give sufficient consideration to the tenant's protected human rights when exercising its discretion (grounds 4 and 5).[28]

54. Because the appeal raised only questions of law, it was dealt with in the usual way, as a rehearing on the evidence. The principles relating to such an appeal were summarised by Presidential Member Daniel in Mansour v Dangar[29] as follows:

...for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal's findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal's primary findings of fact, but may be less constrained in relation to drawing inferences of fact.[30] The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion.[31] [original footnotes retained]

55. The appellants sought to admit new evidence. I have read it, and considered it, and hence it is admitted. However, none of it is determinative of an issue in the appeal.

Ground 1: Whether permitting the respondent to rely on untested 'breach' material in a section 47 'no cause' application was contrary to principles of procedural fairness and natural justice and the evidence was therefore outside the scope of the tribunal's discretion

56. The tenant submits that in permitting the lessor to file with the tribunal and later rely upon material that went to an alleged breach of the standard terms, the tribunal denied the tenant procedural fairness, in that it denied him an opportunity to respond to the allegations, and therefore acted beyond its power.

57. As set out above, the tenant also argues that the RT Act operates in such a way as to prohibit reliance upon alleged breaches of the standard terms as a ground for termination, otherwise than in the context of an application under section 48 of the RT Act (or an application under section 51 of the RT Act, which provides for termination for damage, injury of serious interference without the need for a notice). This ground is considered more thoroughly under the next ground of appeal.

58. Taking the first point, in terms of the acceptance of evidentiary material by the tribunal, two principles must be weighed:

(a) First, the tribunal is not bound by the rules of evidence and may inform itself it any way it considers appropriate in the circumstances.[32] Coupled with the tribunal's statutory imperative to be "simple, quick, inexpensive and informal"[33] this means that the tribunal may take a flexible approach to what documents are admitted into evidence, with the real question being less about admissibility than about what, if any, weight should be given to them - with irrelevant documents given none.

(b) Second, in exercising its functions, the tribunal must observe natural justice and procedural fairness,[34] which means that where the tribunal does propose to consider evidence that is averse to a party, that party should know about the evidence and be given an opportunity to consider and respond to it. How that opportunity is provided will depend upon the circumstances of the case.[35]

59. The way Argyle Housing commenced these proceedings was most unsatisfactory. The application, as drafted and filed, included material that was irrelevant to the application and lacked material relevant to it. It is difficult to see how it could be interpreted as anything other than an application for the tribunal to terminate the tenancy because of the applicant's alleged misbehaviour and breaches of the tenancy agreement. It did not meet the basic requirements for an application for a no cause eviction under section 47.

60. That said, it is not unusual for applications lodged with the tribunal to be less than clear about the grounds relied upon or to demonstrate a misunderstanding as to what may be relevant to an application, particularly where the lessor is self-represented and has not sought legal advice.[36] A misconceived application of this nature is liable to be summarily dismissed, but in considering whether to 'strike out' an application without a substantive hearing, the tribunal must keep in mind its overarching objectives, including that is be as simple, quick, inexpensive, and informal as is consistent with achieving justice.[37] The tribunal must also operate in a way that recognises that parties are often self-represented. The preferable course is often to give an applicant an opportunity to remedy the defect rather than to deny them a hearing.

61. That opportunity to rectify was given by the Senior Member in this case, and I am satisfied it was used appropriately. Despite the content of the application as filed, the lessor subsequently clarified that the application was a 'no grounds' application under section 47 and filed the 26-week notice in support of that. From the conclusion of the first hearing, it should have been apparent that the lessor was relying on the 26-week notice and a no-cause eviction. This was clarified again at the second and third hearings. At least by the time of the second hearing, the tenant knew the grounds of termination relied upon and in that sense the case he needed to meet. I see no error in the Senior Member proceeding in these circumstances.

62. The primary 'breach material' that was relied upon by the original tribunal was the chronology, filed with the amended application. This set out unproven allegations. I will consider the chronology shortly.

63. As to the other adverse material, the Senior Member had clearly at least seen it, but this does not mean that the Senior Member relied upon it, or that it influenced her. Self-represented litigants regularly file all kinds of irrelevant material with the tribunal. Some make applications on multiple grounds, often with ill-defined grounds and accompanied by spurious claims. One of the duties of a tribunal member is to sort through what is or is not relevant and undertake a reasoning process that has regard to only the former. While this no doubt sounds contrived to laypersons, it is part of the legal reasoning process. The Senior Member in this case was very clear as to what limited findings she made and they did not involve findings as to the truth of the allegations against the tenant. Again, I see no error in this approach.

64. In relation to the chronology and some other material, the Senior Member accepted this as setting out the reasons as evidence of the lessor's view that tenancy was "difficult".[38] In doing so, the Senior Member clearly had regard to the chronology insofar as it set out the history of the tenancy, including that complaints had been made against him, and that the difficult nature of the tenancy was a reason why the lessor wanted to end it. The Senior Member did not accept it as evidence that the tenant had breached the standard terms or that the allegations were substantiated:

I treat the notion that there have been breaches that justify termination not just with caution, I reject them. I'm not here to determine whether there is a breach that justifies termination. I'm here to determine whether, in all the circumstances, I should exercise my discretion in the applicant's favour or in the respondent's favour.[39]

65. Only the fact that the allegations were made was considered.

66. Nonetheless, the tenant was given only a brief opportunity to address the fact of the allegations being made. Does this mean the hearing was contrary to principles of procedural fairness?

67. As stated previously, section 47 of the RT Act provides a process by which a lessor may terminate a tenancy without stating any cause, provided the lessor has complied with the procedural requirements of the RT Act and the standard terms. That is, it permits a no-fault, no-cause eviction, albeit after a substantial 26-week (i.e. six month) notice period.

68. It is well established that where there is a valid notice, section 47 of the RT Act neither requires nor invites the tribunal to scrutinise the reasons for issuing a no cause notice.[40] However, as has been made clear in numerous decisions, including by the Supreme Court, the legislature's use of the 'may' in section 47 means the tribunal retains a discretion whether to exercise its power to evict under section 47.[41] The limits of that discretion remain undefined, but where an eviction is contested, and the tribunal must consider whether to exercise its discretion not to terminate a lease, the tribunal may need to look to circumstances that go beyond the notice. Hence, if a tenant claims that the termination is arbitrary or irrational or unjust and asks the tribunal to decline to exercise its discretion on that basis, then the tribunal may be required to consider whether the lessor has a relevant reason even for a 26-week notice. This does not mean that the tribunal can or should evaluate that reason,[42] and nor does it have to determine whether those reasons are substantiated; but if the lessor has no reason, or no rational reason, then that may be one reason why the tribunal would decline to exercise its discretion. As such, I am not satisfied that the tribunal having mere regard to background information and the lessor's perspective is a breach of natural justice when the exercise of discretion is otherwise in question, provided an appropriate level of procedural fairness is observed in the process.

69. This case raises an additional issue. Where the lessor is a public authority for the purposes of the HR Act, as Argyle Housing is, the exercise of the tribunal's discretion will also require consideration of whether the lessor's actions may arbitrarily or unreasonably interfere with a protected human right, including the right to a home and privacy. I will come to the consequences of this shortly, under another ground, but for present purposes I simply observe that human rights may be breached by the arbitrary or disproportionate termination under section 47 and clause 94. Considering human rights issues may require a lessor to present some evidence as to their reasons for termination, as well as scrutiny of the process. I will come to that later.

70. For both those reasons, it may be that in an action under section 47, the lessor needs to address the question of their reason for issuing a clause 94 notice to satisfy the tribunal that it should exercise its discretion. However, for reasons explored further below, this is not the same thing as seeking a termination 'for cause' or relying upon other 'grounds'. Rather, it is something that may occur whenever the tribunal is asked to explore whether to exercise its discretion under section 47.

71. I am satisfied that the tribunal took the breach material into account for this limited purpose only. The tenant was asked about the complaints and presented his version of events in relation to some of them. The fact of the complaints was not challenged, even though their merit was. I do not see any error in this process, or in the Senior Member accepting that the tenancy was a complicated one and that was a reason for the lessor desiring its termination. Section 47 permits termination of the residential tenancy agreement in accordance with a contractual process in such circumstances. If that process was followed, is not within the scope of the tribunal's role under section 47 to go beyond that and consider who was at fault.

72. Accordingly, I am not satisfied there was anything inappropriate in the tribunal's consideration of the breach material.

73. In conclusion, therefore, I am not convinced this ground of appeal is made out. The highly unsatisfactory way the proceedings were commenced was remedied to the greatest extent possible by clarification and adjournments. The complaints and other allegations in the breach material were unsubstantiated and the Senior Member treated them as such. The only purpose for which the breach material was considered was as evidence that the lessor had received complaints about the tenant's conduct and that lessor had some basis for its belief that the tenancy was a difficult one and this was a reason for termination, meaning the decision was not irrational or arbitrary. The Senior Member heard evidence from the tenant in response to the allegation that the tenancy was difficult, noting he disagreed with the assertions and took that into account. She accepted that, at its highest, evidence showed that the lessor considered this a troubled tenancy and that it had received complaints. In a situation where the Senior Member was being asked to exercise her discretion to refuse to terminate the tenancy under section 47 of the RT Act, where the termination was contested, she was entitled and even required to consider evidence of the surrounding circumstances in the limited manner that she did. No breach of procedural fairness or natural justice arises.

Grounds 2 and 3: Whether the tribunal's decision to make the termination order under section 47(1) of the RT Act was clearly wrong, or it was otherwise unreasonable or unjust

74. For the reasons stated above, I am not convinced that the original tribunal erred in considering the 'breach material' in the manner that it did. I will now turn to the tenant's broader argument that the making of an order under section 47(1) was otherwise unreasonable and unjust in circumstances where that evidence was not tested, and where there was an alternative process available that would have allowed it to be tested.

75. The tenant's solicitor's starting position is that section 47 provides for termination for 'no breach' of the standard terms. Section 47(1)(a) expressly provides that the tribunal may only make an order if satisfied that:

a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms).

76. The tenant asks that the tribunal find that the wording of section 47(1)(a) and particularly the bracketed words "other than for a breach of the standard residential tenancy terms" in section 47(1)(a), preclude the making of a termination and possession order for 'no grounds' where there is evidence of a breach, and that breach is a reason for the termination. As I understand the tenant's argument, it is that where the 'reason' for wanting to terminate the tenancy is the conduct of the tenant, then the appropriate (and only permissible) basis to do so is to make out the requirements of the relevant ground. Broadly, this would either through the process for the breach of a clause of the standard terms, followed by an application for termination for breach under section 48 of the RT Act, or perhaps in very serious cases an application under section 51 of the RT Act.

77. So, do the words "other than for a breach of the standard residential tenancy terms" confine the operation of a 'no cause' termination to cases where there is no alleged breach of the agreement, or where the alleged breaches genuinely play no role in the termination proceedings? This requires consideration of how sections 47 and 48 interact, which is a matter of statutory interpretation.

78. Chapter 14 of the Legislation Act 2001 (Legislation Act) provides guidance in relation to the interpretation of Territory Acts.[43] Section 138 of the Legislation Act provides:

138 Meaning of working out the meaning of an Act - pt 14.2

(a) resolving an ambiguous or obscure provision of the Act; or

(b) confirming or displacing the apparent meaning of the Act; or

(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the Act in any other case.

79. Section 139 of the Legislation Act then requires that:

(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

80. Broadly, these statutory provisions require that the courts and tribunal take both a textual and purposive approach that looks to the purpose of the legislation.[44] The 'purpose of legislation' can be gleaned from both the context of the Act, and the surrounding statutory sources.

81. Additionally, section 30 of the HR Act provides that:

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

82. The question is whether the words "other than for a breach of the standard residential tenancy terms"[45] are meant to clarify the relevant provision under which a termination and possession order may be sought, or, as suggested by the tenant, to prevent the use of section 47 where a 'ground' also exists because of an alleged breach of the standard residential tenancy terms.

83. I accept that the interpretation suggested by the tenant may be open on the language of the statute. The Senior Member acknowledged as much in the hearing. It is therefore appropriate to have regard to extrinsic material to determine whether this is the preferred interpretation and an interpretation that is, as far as possible, consistent with human rights.

84. The explanatory statement to the Residential Tenancies Bill 1997 (explanatory statement) states that the proposed clause 45 (which became section 47):

[A]llows the Tribunal to grant a termination and possession order if:

• there is a ground for termination under the prescribed terms other than breach of the prescribed terms;
• the lessor has appropriately served a termination notice on the tenant; and
• the tenant has not vacated.

85. In relation to the '26-week' clause in the standard terms, the explanatory statement states:

[I]mplements the final point in recommendation 150 - that the lessor should be able to terminate the tenancy after expiry of the fixed term in the absence of any grounds provided the lessor gives the tenant 26 weeks notice to vacate.[46]

86. The 'recommendations' referenced in both extracts refer to the recommendations made in the Community Law Reform Committee (CLRC) Report No 8. Private Residential Tenancy Law (December 1994). These recommendations provide:

The proposed Act and standard tenancy agreement should also provide for the lessor to terminate the tenancy after expiry of the fixed term in the absence of any of the above grounds provided the lessor gives the tenant 26 weeks notice to vacate.[47]

87. The 26-week notice period is clearly intended for use "in the absence of" a "ground for termination...under the standard tenancy terms".[48] But what does that mean?

88. The term 'ground' is not defined. It is apparent from the context in which the term is used in the Act that a 'ground' is a legal basis for termination of a residential tenancy agreement under the RT Act. A ground exists where the statutory requirements for it are established.

89. As the Senior Member observed, a 'ground' is not the same things as a 'reason':

SENIOR MEMBER LENNARD: Yes, and, look, I understand that there are very few no cause notices that are actually without reason and there's a difference between being without reason and being for no cause.[49]

90. As the Senior Member acknowledged, a lessor may have a reason for wanting to terminate a lease, but they may not be able to do so unless they can make out a relevant ground. A 'ground' for termination is made out by satisfying requirements related to both a cause or reason, and a process.

91. An examination of the process confirms that at the time the application was filed with the tribunal, there was no alternative 'ground' available to the lessor.

92. The allegations against the tenant may, if substantiated, amount to a breach of clauses 70(b) or (c) of the standard terms, which prohibit a tenant from causing or permitting a nuisance or interfering with or permitting interference with the quiet enjoyment of the occupiers of nearby premises. The starting point for an eviction for a breach of those terms is the process set out in clause 93 of the standard terms, which provides:

Termination of tenancy for breach other than nonpayment of rent

93 The tribunal may order the termination of the tenancy and eviction of the tenant on the ground of breach of the tenancy agreement in the following circumstances:

(a) the lessor must serve a written notice requiring the tenant within 2 weeks after the day of service to remedy the breach if it is capable of remedy;

(b) if the breach is not remedied within 2 weeks after the day of service or if the breach is not capable of remedy - the lessor must give a notice to vacate the premises within 2 weeks after the date of service of the notice to vacate;

(c) if the tenant does not vacate the premises within the period of 2 weeks after the date of service of a notice to vacate - the lessor may apply to the tribunal for an order terminating the tenancy and for the eviction of the tenant;

(d) if the tenant breaches the terms of the tenancy on 3 occasions on any ground - on the 3rd occasion the lessor may serve a notice to vacate and need not give the tenant 2 weeks to remedy the breach.

93. Clause 93 sets out when the tribunal may order the termination of the tenancy on the 'ground' of breach of a clause of the tenancy agreement. Clause 93 then states that the tribunal may order the eviction of a tenant on the 'ground of breach of the tenancy agreement' where a series of process requirements, set out in that clause, are met. That process includes the serving of both a breach notice, which was done in this case, and then, if the breach is not remedied, a "notice to vacate the premises within 2 weeks...". That process was not followed in this case. No termination notice was issued under clause 93. It was therefore not open to the lessor to bring an application for termination and possession under section 48, as at the time it lodged its application with the tribunal, no 'ground' relevant to that section existed.

94. There is no suggestion anywhere in the documents that the tenant's conduct, even if proven, would have been of such seriousness as to warrant termination under section 51.

95. Instead, the lessor had chosen to rely solely on the ground available under clause 94. In doing so it accepted it must wait for 26 weeks from the service of the notice to vacate as a prerequisite to bringing an application in reliance upon that ground.

96. I am therefore satisfied that even if the words in issue in section 48 are intended to exclude applications under other sections, those words do not apply here, as only one 'ground' was clearly available to the lessor under the RT Act, and that was the ground established by the issuing of a notice to vacate under clause 94.

97. If I am wrong on this point, then I am presumably wrong to distinguish the concept of 'ground' from that of 'reason'. That such a distinction is illusory seems to have been at the heart of the tenant's submissions at the original hearing.[50]

98. Even if I were to accept that there is a correlation between a reason and a ground or cause, which I do not, I am not satisfied that the bracketed words in 47(1)(a) prohibit a lessor from making an application under section 47 where an application could instead be brought under section 48. I come to this conclusion largely because I need to consider the provisions in context, and that includes all three of the termination provisions in sections 47, 48 and 49 of the RT Act.

99. Looking broadly, section 49 of the RT Act provides a mechanism for terminating a lease for a failure to pay rent, after the service of relevant notices for that reason. Section 49 provides:

49 Failure to pay rent - termination and possession order

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

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

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

(2) The lessor may apply to the ACAT for a termination and possession order.

_(c) refuse to make a termination and possession order or payment order if - _

(i) 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 becomes payable; and

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

_(4) If the ACAT makes a termination and possession order, it may suspend the order for a stated period of not more than 3 weeks if satisfied that - _

(a) were the order not suspended for the stated period, the tenant would suffer significant hardship; and

(b) the tenant's hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the stated period.

100. Section 48(1)(a) has similar wording to that found in section 47(1)(a) providing that the tribunal must be satisfied that "the tenant has breached the standard residential tenancy terms (other than by failing to pay rent that has become payable)".[51] If I accept the appellant's argument as to the interpretation of these sections, then 48(1)(a)(i) would also operate so as to prevent a lessor from seeking termination for a breach of another standard term where the tenant has also failed to pay rent, the lessor being required to pursue the tenant for unpaid rent first. In practice, the failure to pay rent is usually the most straightforward and objective means to terminate a lease, but I doubt the intention of sections 47, 48 and 49 was to require lessors to pursue termination on that ground in all cases where a debt exists. Indeed, it may do a disservice to tenants were such a requirement to exist, given it would mean that a lessor who simply wished to end a lease may be required to seek a termination under section 49, with the consequent finding of a debt, where a 'no cause' termination may be preferable.

101. A termination under section 47 is of a different character to a termination for breach of a clause under section 48. The grounds upon which section 47 can be relied upon are set out in the standard terms, and go beyond the no fault ground in clause 94. They involve matters beyond the tenant's control, including sale or renovation of the property. In all circumstances to which section 47 applies, a longer notice period is required than is for termination based on breach under section 48, recognising that there is a need to balance rights. Against the longer notice period is less practical opportunity for the tenant to challenge the eviction because the establishment of the ground is a matter exclusively for the lessor, who does not need to prove fault by the tenant, but only the issue of a valid notice. The section 48 route is potentially faster, but the lessor must prove fault, and should recourse to the tribunal be necessary, must also establish that the fault is of such sufficiency to justify the termination of the tenancy immediately,[52] or after a maximum three week stay.[53] It may involve making findings against the tenant.

102. Accordingly, I agree with the original tribunal that sections 47, 48 and 49 are meant to be alternatives, rather than section 47 being read as a mere residual power where others are not available. The processes are distinctly different.

103. Similarly, I agree with the original tribunal that there is no basis to conclude that a lessor who is frustrated by breaches or inappropriate conduct by a tenant must take the demanding action of pursuing a termination for breach under clause 93 and section 48. The lessor may take the less conflict-ridden route of issuing a 26 week notice under clause 94, with planned recourse to section 47 if necessary, and wait.

104. To read the interactions between 47 and 48 otherwise would result in a perverse situation, where a tenant's response to a no-fault termination process could be that such an eviction is not available because the tenant had allegedly breached the tenancy agreement, where it would available if they had not. This does not seem a sensible result.

105. In reaching these conclusions, I have considered section 30(1) of the HR Act, and the requirement that I read the relevant sections as far as possible in a way that is compatible with human rights. Even having regard to a person's right to a home, as per section 12 of the HR Act, I am not satisfied that I should prefer the interpretation offered by the tenant, as it is not a practical interpretation, and in any case the section encompasses a notice period that is a reasonable limitation, having regard to the clear intention of the Act to permit 'no cause' evictions in certain circumstances.

106. For these reasons I am satisfied that the bracketed words in sections 47(1)(a) and 48(1)(a) are there for the avoidance of doubt, to clarify which section each kind of application should be brought under. They are establishing alternatives, not confining section 47 to use as a residual power where there are no reasons that could relate to a ground, and no ground can be established. I find no error in the senior member's reasoning.

107. To summarise, I am satisfied than when presented with a series of complaints about a tenant's behaviour or nuisance, a lessor may do one of three things:

(a) If the allegations are serious enough, commence an action under section 51 of the RT Act for immediate termination, which requires an application to the tribunal and likely a full hearing where the allegations must be tested and substantiated.

(b) If the allegations are capable of remedy, or if the lessor has issued notices to remedy on two previous occasions, and the breach is serious enough to justify termination, commence a process to evict the tenant for a breach of the standard residential tenancy terms, with a view towards an application to the tribunal under section 48 if the tenant does not vacate - the process taking some weeks.

(c) Choose to issue a no-cause, 26-week notice under clause 94 of the standard terms, with a view toward an application to the tribunal under section 47 of the RT Act at the end of that period if the tenant does not vacate - the process taking in excess of half a year.

108. In saying that, I acknowledge Canberra Community Law's argument that 'no grounds' termination can do an injustice to the tenant who feels they can adequately defend the allegations of breach. However, as the Senior Member observed in her reasons, whatever one ultimately thinks of clause 94, the legislature has chosen to make it available. Contractual principles define the relationship between the tenant and the lessor, and the term is clear. There is no textual or purposive reason to read the term in a way that would restrict it, and clear contextual reasons to read it as one of several alternative grounds for termination. The legislation provides some protection in the form of a lengthy notice period, and the tribunal still retains a discretion to refuse to make a termination and possession order under section 47 when a lessor seeks to rely upon the notice.

109. Accordingly, having regard to the reasons of the original tribunal, I am satisfied that there was no error in law, or in the exercise of discretion, in the original tribunal's decision.

110. The remaining question is how that discretion should have been exercised in light of the tenant's reliance on his human rights.

Grounds 4 and 5: Whether the tribunal failed to give sufficient consideration to the appellant's protected human rights when exercising its discretion

111. The tenant submitted that the tribunal failed to consider his submissions that Argyle Housing's conduct in the process of evicting him was incompatible with, or failed to take into consideration, the appellant's protected human rights, and therefore contravened section 40B of the HR Act. In particular, the appellant says that the tribunal "failed to apply any discernible test" in considering his submissions.

112. The tribunal has considered the appropriate method for dealing with issues arising under the HR Act in applications for termination of tenancy on several occasions.[54]

113. Section 40B of the HR Act provides that it is unlawful for a public authority to act in a way that is incompatible with a human right under the HR Act, or in reaching a decision to fail to give consideration to a relevant human right:

40B Public authorities must act consistently with human rights

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

_(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and - _

(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human right.

Note A law in force in the Territory includes a Territory law and a Commonwealth law.

public authority includes an entity for whom a declaration is in force under section 40D.

114. Section 40C then sets out the kinds of legal actions that a person can bring in relation to an alleged breach of their human rights:

40C Legal proceedings in relation to public authority actions

(a) claims that a public authority has acted in contravention of section 40B;and

(b) alleges that the person is or would be a victim of the contravention.

(a) start a proceeding in the Supreme Court against the public authority; or

(b) rely on the person's rights under this Act in other legal proceedings.

115. In exercising its jurisdiction under RT Act, the tribunal is not acting as a 'public authority' under subsection 40(2)(b) of the HR Act. This is because the tribunal in this jurisdiction (residential tenancies) falls within the definition of the term 'court' in the HR Act, and the RT Act proceedings do not involve the ACAT acting in an administrative capacity.[55] However, a person may 'rely upon their rights' under the HR Act in a proceeding that is otherwise before the tribunal, including an application under the RT Act.

116. In Commissioner for Social Housing v Cook[56] (Cook) the tribunal summarised the approach to be taken when a tenant relied on their human rights in the context of an application under section 47 of the RT Act as follows:

23. The Tribunal does not have the jurisdiction to conduct any human rights review of the conduct of the applicant. The Human Rights Act 2004 (the HR Act) establishes the duties of public authorities in respect of human rights. The applicant is a public authority. Section 40C of the HR Act permits a person to rely on human rights in legal proceedings. It is well settled that in this tribunal, a tenant may raise human rights issues in an application for termination of their tenancy. The Tribunal has considered the appropriate method for considering issues arising under the HR Act in applications for termination of tenancy on several occasions. It is not necessary for the present Tribunal to explore these issues in depth. However, it will be useful to summarise the approach we intend to take:

(a) A tenant is entitled to raise human rights issues in response to an application for termination and possession.

(b) Human rights issues are relevant matters to be considered by the Tribunal in the exercise of any discretion.

(c) If a respondent raises and relies on section 40C(2)(b) of the HR Act, then the ACAT may consider whether there has been a contravention of section 40B of the HR Act.

(d) In deciding whether there is a contravention of section 40B of the HR Act, ACAT must also consider whether the human right is subject to any reasonable limit, pursuant to section 28 of the HR Act.

(e) If ACAT arrived at the conclusion that there had been a contravention of section 40B of the HR Act, that contravention must be addressed within the context of ACAT's existing powers and processes. That is, it would be appropriate for ACAT to consider any contravention when exercising discretion whether to make a termination and possession order pursuant to the RT Act.

(f) Where a respondent raises and relies on section 40C(2)(b) of the HR Act, then the onus of proof is with that respondent. It is not for the applicant to establish on each occasion that a termination and possession order is sought, that they have acted in compliance with the requirements of the HR Act.

117. The tenant did not cavil with this summation, although his solicitor did reject the tribunal's definition of 'arbitrary' in Cook, preferring the definition used in Commissioner for Social Housing v "A" [2015] ACAT 13 at [43] ("A") and Commissioner for Social Housing v Jones [2016] ACAT 75. The test set out in "A" is as follows:

42. I do not consider that the effect of section 40C(2)(b) is to place an onus on a public authority lessor to demonstrate reasonableness and proportionality in the orders it seeks under the RT Act. Nor does section 40C(2)(b) by a back door require the tribunal, when for the purposes of the HRA acting as a 'court' conducting 'legal proceedings', to treat itself as a 'public authority' bound to only make orders that comply with the HRA.

43. Rather, when a public authority lessor brings an application under the RT Act, it is open to the tenant to argue that the making of the order would be disproportionate or unreasonable such as to amount to an arbitrary interference with their home, and that, given the nature of the particular provision of the RT Act relied upon and the individual circumstances of the case, the discretionary power to make the order should not be exercised. Where a substantive argument is raised, it is for the applicant lessor to satisfy the tribunal that, after a consideration of all of the circumstances of the case (including whether or not the orders sought by the lessor impermissibly contravene the tenant's rights under the HRA), the orders sought should be made.[57]

118. The difference in the approaches is considered below.

119. The tenant's argument is that the Senior Member did not apply a discernible test when considering human rights. In considering this ground of appeal, it is also important to note the observations of Presidential Member Daniel in Campbell v Blackshaw & Evans [2017] ACAT 64, citing NSW Police Force v Newby [2009] NSWCCPD 75 in relation to the review of oral reasons for decision:

...While the public interest in the provision of reasons remains the starting point, the objectives of timeliness and efficiency mandated by section 5 of the ACAT Act oblige the Tribunal to approach the preparation of written or oral reasons in a proportionate manner.

59. In NSW Police Force v Newby [2009] NSWWCCPD 75 Keating J stated:

To succeed in having the Arbitrator's decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge's (Arbitrator's) reasoning process and merely incorporating counsel's submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor [2007] NSWCA 203 at [30]).

The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).

When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443-444 ('Beale')). A Presidential member on review is not required to comb through the Arbitrator's findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ('Soulemezis') McHugh JA (as he then was) stated at 280:

If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter [1945] NSWStRp 35; (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.

60. The cautions expressed in Collector of Customs v Pozzolanic (1993) 43 FCR 280 as to overzealous scrutiny of reasons for administrative decisions also resonate in the quasi-judicial Tribunal context. It is not the role of the Appeal Tribunal to pore over written or transcribed oral reasons searching for possible inadequacies but rather to consider whether, taken as a whole, the reasons disclose that the Tribunal fell into error. A Tribunal at first instance should not feel obliged to slavishly record every detail of the evidence given by every witness, or to set out fine nuances or points of distinction, in order to demonstrate to a hypothetical Appeal Tribunal or Court that due consideration and weight has been given. The primary audience for reasons remains the parties, and reasons which set out the necessary elements in a manner proportionate to the context of the matter will ordinarily be sufficient.[58]

120. I have approached the analysis of the original tribunal's reasons with that the above in mind. The reasons were oral and given at the conclusion of the hearing, without an opportunity to give the kind of careful consideration to language and words one might if preparing oral reasons. It is not reasonable to expect such reasons to contain the degree of detail expected in a written decision. The question is whether, as a whole, the reasons disclosed an error. In relation to this ground of appeal, any error would lie in whether the Senior Member's reasoning was inconsistent with the established approach to the consideration of HR Act in the context of a section 47 application.

121. In Cook the tribunal applied a three-stage test developed in Canberra Fathers and Children Services Inc & Michael Watson:[59]

(a) It is necessary to consider whether in the circumstances the conduct of [the Commissioner] enlivens or engages a human right;

(b) If so, it is necessary to consider whether the decision to terminate the occupancy agreement amounted to an unlawful or arbitrary interference with the family or home of the respondent, and as a part of that consideration to apply the proportionality test in s28;

(c) If the decision to terminate the occupancy agreement was arbitrary or unlawful, the Tribunal would examine ...whether the rights asserted are subject to any reasonable limitations...

122. Cook was another matter arising from clause 94 and section 47, I am satisfied that that this is a useful framework to consider the Senior Member's reasoning in this case.

Consider whether in the circumstances the conduct of the Commissioner enlivens or engages a human right

123. At both the first and second hearings the respondent tenant raised the issue of human rights in relation to section 12 of the HR Act. This relates to privacy and reputation and provides:

(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and

(b) not to have his or her reputation unlawfully attacked.

124. The Senior Member accepted the 'right to home' is the right engaged. This is consistent with long standing authority that the commencement of a legal process to terminate a tenancy on 26-weeks' notice is an attempt to interfere with the tenant's home without their consent.[60]

125. The Senior Member acknowledged that the tenant's human rights were engaged in relation to both the process and the outcome. Criteria (a) was therefore met.

If so, consider whether the decision to terminate the residential tenancy agreement amounted to an unlawful or arbitrary interference with the home of the tenant, and as a part of that consideration to apply the proportionality test in section 28 of the HRA

126. The next question is whether the Senior Member appropriately considered whether the eviction was an unlawful or arbitrary inference with the home of the tenant, and as a part of that consideration appropriate applied the proportionality test in section 28 of the HRA.

The evidence before the Tribunal is that the Commissioner served a valid notice to vacate on the tenant, in accordance with the process provided for in both the terms of the residential tenancy agreement and the RT Act. The Tribunal is of the view that the Commissioner has not interfered with the respondent tenant's home in a manner that is either unlawful or arbitrary. The Tribunal, therefore, is not required to apply the proportionality test as set out above. That is not to say that in the exercise of its jurisdiction the Tribunal will not be required to consider proportionality in weighing up to the interests of the lessor and the tenant.

The Tribunal, therefore, is not required in this case to determine the question of whether the human right is subject to reasonable limitations. The Tribunal, nevertheless, is of the view that in relation to the residential tenancy, in matters where there is an application for termination and possession made in accordance with the terms of the residential tenancy agreement and the provisions of the RT Act; the human rights issues will have little room in which to operate. The parties are in a legally binding contract. The terms of that contract are contained in the RT Act and the performance of those terms and the rights, obligations and remedies are governed by that Act. The parties must know that the contract can be terminated in accordance with the terms of that contract. An order for termination and possession cannot be said to be an unreasonable limit on the tenant's human rights.

ACAT has a discretion to exercise at the point of determining whether to make the termination and possession order sought. That discretion is not unfettered and must be exercised with scope and purpose of the RT Act in mind. The Tribunal will consider the relevant circumstances of each party, which could include:

(a) the history of the tenancy, including the length of the tenancy;

(b) the powers and functions of the lessor as a provider of public or social housing, including:

(i) the lessor's interest in ensuring compliance with the terms of the residential tenancy agreement;

(ii) the lessor's interest in efficient management of a finite housing stock;

(c) the conduct of the parties in the circumstances giving rise to the application for termination and possession;

(ii) difficulty in finding other suitable accommodation;

(iii) the risk of a prolonged period of homelessness;

(iv) physical or mental health factors.[61]

128. It appears from the Senior Member's reasoning, as set out above, that she applied a similar approach to that in Cook to her decision-making process in this matter. She considered whether the termination process was itself was in breach of the tenant's human rights. In the circumstances, the lawful process had been followed, and human rights issues had little scope to operate. Nonetheless, the consequences for the tenant of the termination, and all the surrounding circumstances, including the potential breach of his human rights, were relevant considerations for the exercise of discretion. She explicitly considered the effect the termination would have on the applicant's human rights in the exercise of that discretion.

129. The tenant takes issue with the tribunal's formulation of arbitrariness in Cook, preferring that adopted in "A" and Commissioner for Social Housing v Jones [2016] ACAT 75, as extracted above. I am not that convinced that the substance of these tests is so different so as to produce a contrary result in this case. Although the tests may be conducted at different stages, ultimately the question under either formulation is whether the application is a disproportionate or unreasonable interference with the tenant's home, and whether for this reason the orders should not be made.[62]

130. To the extent that there is a difference, it lies in who bears the onus at what point in the test, the applicant lessor or the respondent tenant when a HR Act issue is raised.

131. The Senior Member considered the relevant circumstances of each party. Of particular relevance, at the second hearing on 17 February 2020, the Senior Member specifically set out her concerns about the commencement of the process and the manner in which it was commenced and the consequences for the appellant's human rights:

...The other is some human rights issues, but the third, and for me the most important one, is whether or not this is a valid notice because of the way it's been mixed in with a breach, and I understand the reasons why the landlord has served multiple notices to remedy but these things were all served at once and it looks like what you have served is a hybrid notice to remedy and notice to terminate if you don't remedy, and certainly the letter would indicate that this is, in fact, not a no cause application. It's an application for cause. So I think that's what you need to address.[63]

132. The Senior Member went through the circumstances, heard from the appellant's solicitor, and concluded that no breach of natural justice arose in relation to the service of the notices or the filing of the breach evidence. The Senior Member suggested to the tenant's advocate as to why it was not unusual to issue a 26-week notice and a breach notice:

So, Ms Palk, what that looks like then is a not unusual situation where people serve a 26 weeks' notice and then they serve notice on other grounds depending on what happens. Most commonly it's failure to pay rent because someone with that 26 weeks' notice ceases paying rent, but the application is filed after the 26 weeks' notice expires and why shouldn't I just now take this application as being grounded simply on the no cause?

MS PALK: Because of section 47(1)(b). So it's fine for Argyle to serve a notice to vacate. Where there's a no breach situation they can apply for a termination on that basis, but 47(1)(b) requires them to serve a termination based on, serve a termination notice based on that ground. The termination notice they have served requires him to rectify his behaviour and that ---

SENIOR MEMBER: No, the notice of remedy requires him to rectify his behaviour. The termination notice is clearly, if taken alone, it's just a no grounds notice.[64]

133. The Senior Member considered whether the tenant did not know what he had to do in relation to the notices or what case he had to answer and did not accept that. Rather, the Senior Member accepted that this was a no-cause termination, albeit not one that was without reason. The process, while not ideal, was remedied as best as possible, and the Senior Member was satisfied that the appellant was given an opportunity to address why the order should not be made, including the effect of the process on his human rights. I have found no error in the Senior Member's reasoning.

134. If the test in "A" is the correct one, then the Senior Member may have erred in concluding that "... that there are adverse effects upon this tenant but none that would justify me refusing the application for termination and possession".[65] This would be because the tenant had raised a substantive argument about his human rights and, therefore it was for the applicant lessor to satisfy the tribunal that, after a consideration of all of the circumstances of the case the orders should have been made. However, an analysis of the Senior Member's reasons shows that she considered and weighed thoroughly the concerns on both sides, as relevant to the exercise of a discretion under section 47, having regard to the HR Act. These included all the circumstances, including the acknowledged "catastrophic" consequences for the tenant, as well as the broader consequences for Argyle, and other tenants, if Argyle Housing is unable to manage its housing stock. It is apparent that the lessor convinced the Senior Member that after consideration of all the circumstances of the case (including whether or not the orders sought by the lessor impermissibly contravene the tenant's rights under the HRA), the termination and possession sought should be made.[66] Hence, on balance, I am satisfied the test in "A" was in any case satisfied.

135. For completeness, I note that I agree with the Senior Member that it is unrealistic to expect the tribunal to consider whether the termination is "disproportionate" or "capricious, arbitrary or unjust" on the basis of just the effect of the termination on the tenant. Where a tenant raises their human rights, and claims a termination decision is arbitrary, disproportionate or unreasonable, the broader reasons for the issuing of the notices, including why the notices were issued, may of course be considered. This doesn't mean the tribunal can, or must, conduct an investigation into whether the allegations are substantiated. Instead, the tribunal considers whether the lessor has a reason and whether, in light of that reason, and all the other relevant circumstances, including the context established by clause 83, the decision to terminate the tenancy was a breach of the tenant's human rights such that the tribunal should decline to exercise its discretion under section 47. That is what happened at first instance in this case.

136. In this regard, the Senior Member concluded, relevantly to the points in issue:

I note that Argyle Housing has not relied on any of the specific breaches alleged to have been committed by the tenant and there is no evidence before me of any of those specific breaches that he is able to respond to, although I also note that Mr Pye has had some comments to make about that. I treat the notion that there have been breaches that justify termination not just with caution, I reject them. I'm not here to determine whether there is a breach that justifies termination. I'm here to determine whether, in all the circumstances, I should exercise my discretion in the applicant's favour or in the respondent's favour.

137. The Senior Member went on to consider the time available to the tenant to take action in relation to the notices, including to look for other accommodation options, and concluded that he had the opportunity to take steps to address his situation, but did not do so until the November deadline was close. As such, the Senior Member concluded that the tenant's largely unexplained lack of action contributed to the impending adverse effect of the termination. I do not see any reason to disturb that finding or the consideration given to it in the context of the exercise of discretion.

138. Whether the Appeal Tribunal would have exercised its discretion in a different manner is not the question. The Senior Member's reasoning is clear, her decision is within the scope of decisions that could reasonably be made, and I am satisfied she gave due consideration to the tenant's human rights, and indeed to the consequences for him more generally, in the exercise of her discretion. To step in and remake that decision, in the absence of error, is not appropriate.

139. For the reasons set out above, I intend to make orders confirming the original decision, dismissing the appeal, and lifting the stay on the termination and possession order.

140. However, I note that the Residential Tenancies (COVID-19 Emergency Response) Declaration 2021 (No 3) (Covid Declaration) came into effect on 2 September 2020. That declaration has consequences for certain orders and applications made under the RT Act. Accordingly, I will make the following directions:

(a) If the appellant wishes to make any submission on the operation of the Covid Declaration, he is to file any submissions and/or any evidence to be relied upon in support of that submissions, by 20 September 2021.

(b) The respondent is to file a submission and any evidence to be relied upon in response by 27 September 2021.

(c) The matter will then be finalised in chambers, subject to the matter being listed if the Tribunal considers it necessary to do so.

(d) If the no further submissions are received from the appellant by 20 September 2021, orders will be made shortly thereafter.

[1] Residential Tenancies Act 1997 section 48(1)(a)(v)

[2] Transcript of proceedings 17 February 2021 page 5, line 45

[3] Transcript of proceedings 17 February 2021 page 6, lines 16-17

[4] Transcript of proceedings 17 February 2021 page 7, lines 13-26

[5] Transcript of proceedings 17 February 2021 page 7, lines 42-44

[6] Transcript of proceedings 17 February 2021 page 9, lines 43-44

[7] Transcript of proceedings 17 February 2021 page 10, line 10

[8] Breach notice sent from Argyle Housing to Mr Ken Pye dated 27 May 2020

[9] Transcript of proceedings 17 February 2021, page 12, line 30

[12] Transcript of proceedings 17 February 2021 pages 12-13

[13] Transcript of proceedings 17 February 2021 page 13, line 17

[14] Transcript of proceedings 17 February 2021 pages 14-15

[15] Transcript of proceedings 17 February 2021 page 16, lines 1-13

[16] Applicant's response received 1 March 2021 (Applicant's response) page 3 at [7]

[17] Applicant's response page 3 at [7]

[18] Transcript of proceedings 18 March 2021 page 2, lines 32-34

[19] Transcript of proceedings 18 March 2021 page 2, line 35

[20] Transcript of proceedings 18 March 2021 page 3, lines 37-38

[21] Transcript of proceedings 18 March 2021 page 16, line 45

[22] Transcript of proceedings 18 March 2021 page 23, line 42

[23] Transcript of proceedings 18 March 2021 pages 7-8

[24] Transcript of proceedings 18 March 2021 page 13, line 32

[25] Transcript of proceedings 18 March 2021 page 13, lines 33-34

[26] Transcript of proceedings 18 March 2021 page 13, line 35

[27] Transcript of proceedings 18 March 2021 pages 23-25

[28] Application for appeal, Attachment A

[29] [2017] ACAT 49

[30] Mansour v Dangar [2017] ACAT 49 at [22]; For example where the factual finding is clearly affected by error, or where there is no issue or credit or reliability of witnesses: Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; Edwards v Noble [1971] HCA 54; Warren v Coombes [1979] HCA 9

[31] Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149 at [78], House v R (1936) 55 CLR 499

[35] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, page 585

[36] Although I note that for a community housing provider, particularly one providing services to vulnerable persons, such confusion is unfortunate and unsatisfactory and does raise the additional human rights issues considered below.

[38] Transcript of proceedings 18 March 2021 page 25, line 4

[39] Transcript of proceedings 18 March 2021 page 24, lines 13-18

[40] Eg. discussion in Commissioner for Social Housing v Cook [2020] ACAT 36 at [18]

[41] See Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52 per Ryan J at [33]; Commissioner for Social Housing v Jones [2016] ACAT 75 at [11]- [12]

[42] See Commissioner for Social Housing v Cook [2020] ACAT 36 at [14]

[43] Legislation Act section 137(1)

[44] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; Hill v Council of the Law Society of the ACT [2020] ACTCA 3 at [60]; see also R v Lee [2016] ACTCA 69 at [18]- [22]

[46] Explanatory Statement to the Residential Tenancies Bill 1997, clause 94

[47] Residential tenancy law: Summary of Recommendations [1994] ACTCLRC 8

[49] Transcript of proceedings 17 February 2021 page 6, lines 20-21

[50] See transcript of proceedings on 17 February 2021 page 12, lines 4-17; although there appears to be a typographical error in the transcript at line 13 - "Now, those reasons disclose or cause issue" - and hence I have not quoted it in full.

[54] See for instance: Commissioner for Social Housing in the ACT v Massey [2013] ACAT 41; Commissioner for Social Housing in the ACT v "A" [2015] ACAT 13; Commissioner for Social Housing v Lysle [2016] ACAT 26; Commissioner for Social Housing v Jones [2016] ACAT 75; Commissioner for Social Housing v Cook [2020] ACAT 36

[55] The decisions of the ACAT in Thornthwaite and Commissioner for Social Housing [2012] ACAT 11 and Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74 proceeded on the basis that the ACAT was a public authority, and comments in those decisions should be approached with that reservation in mind. The situation is different where the tribunal is acting in is administrative review jurisdictions and 'standing in the shoes' of the original decision maker.

[56] [2020] ACAT 36

[58] Campbell v Blackshaw & Evans [2017] ACAT 64 at [58]- [60]

[59] [2010] ACAT 74; Noting some of the limitations in this outlined above at footnote 58. See also R v Fearnside [2009] ACTCA 3; Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48

[60] Little v Commissioner for Social Housing [2017] ACAT 11

[61] Commissioner for Social Housing v Cook [2020] ACAT 36 at [36]- [38]

[63] Transcript of proceedings 17 February 2021 page 16, lines 5-13

[64] Transcript of proceedings 17 February 2021 page 11, lines 1-16

[65] Transcript of proceedings 18 March 2021 page 25, lines 13-14