List of legislation: ACT Civil and Administrative Act 2008, s.82

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Human Rights Act 2004, ss.30, 32, 33, 40, 40A, 40B, 40C and

Residential Tenancies Act 1997 (Vic)

List of cases: Canberra Fathers and Children Services Inc & Michael Watson (Residential Tenancies) [2010] ACAT 74

Director of Housing v Sudi [2011] VSCA 266

In the Matter of an Application for Bail by Isa Islam

[2010] ACTSC 147

CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 30 OF 2011

2. The residential tenancy agreement is terminated. Possession

of the premises shall be given to the lessor at 9 am on

3. The tenant and any other person claiming right of possession

through the tenancy is to vacate the premises in accordance with the above order.

4. The deputy registrar is to issue a warrant for eviction for the

Premises, if vacant possession is not given by the appellant at 9 am on Tuesday 29 November 2010.

5. The tenant shall pay the lessor an occupation fee at the rate

of $47.15 per day in addition to the rent from today until the

date possession of the premises is given to the lessor.

6. The tenant is to remove all goods and return the premises

in clean condition by 9 am on Thursday 29 November 2011.

7. The tenant is to pay the lessor the sum of $13,770.92,

payment details to be worked out between the lessor and

Application of the Human Rights Act 2004

1. I will first deal with some legal points, which have application well beyond this case. The first point to deal with is the point raised in relation to the Human Rights Act 2004. The tribunal is well aware of a couple of recent ACT cases involving residential tenancies where the Human Rights Act has actually been used.

2. In Canberra Fathers and Children Services Inc & Michael Watson (Residential Tenancies) [2010] ACAT 74 (which was a case involving an NGO provider), Senior Member Lennard, who is one of the senior members appealed from in this matter, did invoke the Human Rights Act. That was distinguished in a case which I did, in relation to another NGO housing provider for short-term accommodation (Inanna Womens Refuge), where I did not find the Human Rights Act had been breached. Both cases assumed a proper exercise of the power of the tribunal in dealing with Human Rights issues raised.

3. It would appear that in a recent case, the Court of Appeal in Victoria has changed those interpretations and assumptions, i.e. the Director of Housing v Sudi [2011] VSCA 266 (6 September 2011. It is worth quoting the summary of judgment in that case, because it does have direct applicability to ACAT and to ACT jurisprudence.

4. The report of that case as stated in the head note is as follows:

"The Court of Appeal today decided that, where the Director of Housing applies to the Victorian Civil and Administrative Tribunal for possession of public housing, the Tribunal has no power to examine whether the Director's administrative decision to make the application complies with the Charter of Rights and Responsibilities Act 2006 ('Charter').

Under the Residential Tenancies Act 1997 ('RTA'), a landlord who claims to be entitled to possession of premises may seek an order for possession. The Director of Housing, as public landlord, applied to the Tribunal for an order for possession of premises occupied by Mr Sudi and his son.

In the Tribunal, Mr Sudi contended that the Director's decision to apply for possession was itself unlawful. He argued that, in making the decision, the Director had infringed his human rights. Specifically, Mr Sudi contended that the application infringed his right under s 13(a) of the Charter not to have his 'privacy, family [or] home' unlawfully or arbitrarily interfered with.

The critical question was whether the Tribunal had the power to decide the lawfulness of the Director's decision to make the application, as distinct from determining the merits of the application itself. Bell J, sitting as President of the Tribunal, decided that it did.

The Court of Appeal has unanimously overturned this decision, holding that VCAT has no power to conduct what amounts to judicial review of the lawfulness of a decision by an administrative officer to commence proceedings in the Tribunal.

Ordinarily, such questions can only be determined by the Supreme Court, which is the only Victorian court to have a judicial review jurisdiction. Occasionally, questions of legal validity of administrative action can arise - collaterally - in lower court proceedings.

But the Court of Appeal held that the clear legislative intention of both the VCAT Act and the RTA was that the Tribunal should not have such a power.

The existence of such a power would be contrary to the whole nature and purpose of VCAT."

"... [T]he VCAT Act sets up VCAT as a forum for speedy and inexpensive resolution of specific kinds of disputes. The RTA confers jurisdiction on VCAT to hear applications under that Act. In doing so, the RTA is implementing its stated purpose of providing 'for the inexpensive and quick resolution of disputes under [the] Act'. A power to undertake collateral review would be wholly inconsistent with this purpose.

In order to entertain a collateral attack on the validity of an administrative decision while dealing with an application under the RTA, VCAT would have to, in effect, conduct a trial within a trial. VCAT would need to leave the subject of tenancy law and enter the domain of administrative law. It would have to make difficult decisions about whether the challenge falls within the limits (if any) of permissible collateral attack, whether the impugned administrative decision is affected by error and whether the alleged error is jurisdictional. Such a complex, technical and time-consuming inquiry would destroy the advantages of litigating the tenancy dispute in VCAT rather than in a court."

6. The Court then dealt with the Residential Tenancies Act 1997 of Victoria:

"The Residential Tenancies Act

"Nor was there any room for such collateral review under the statutory scheme for obtaining possession of premises.

In a statutory scheme which applies without differentiation to public and private landlords, it would be quite anomalous if the Tribunal were empowered - in cases where application was made by the Director as public landlord - to enquire into the lawfulness of the Director's decision to seek possession. There is simply no basis for implying into the jurisdiction-conferring provisions a power in the Tribunal to conduct such a collateral review. Plainly enough, Division 3 of Part 7 of the RTA was intended to establish a scheme under which landlords could seek to evict, by expeditious process consistent with the requirements of natural justice, those in occupation of premises 'without licence or consent'. More obviously than in most other statutory contexts, the role of the Tribunal under this scheme is as an instrument of legislative policy. That is, once satisfied that the conditions for eviction are met, the Tribunal must evict. It would be wholly inconsistent with this legislative purpose to imply ... a power of collateral review exercisable by the Tribunal in proceedings initiated by the Director.

7. Maxwell P went on to discuss the Charter of Human Rights and Responsibilities Act 2006 (Vic), and said:

Nor, in the Court's view, did the Charter confer such a power on the Tribunal.

Under s 39(1) of the Charter, the right to argue that administrative action is unlawful because of non-compliance with the Charter can only be asserted when there would be a right to seek review of that action independently of the Charter. Neither the VCAT Act nor the RTA provides any such remedy independently of the Charter.

In my opinion, s 39(1) cannot be invoked as the source of VCAT's power to engage in collateral review on Charter grounds. There are two reasons for this. First, as is plain, the section does not confer upon VCAT any power of judicial review. Secondly, the section does not expand any power of collateral review that VCAT might have under ordinary common law principles. Indeed, it can be argued that the legislative intention disclosed by s 39 is that Charter unlawfulness can be relied upon as a ground in - and only in - a proceeding the object of which is to seek 'relief or remedy in respect of an act or decision of a public authority on the ground that ... [it] was unlawful'. That would, by definition, confine such relief to a direct challenge before VCAT, and would exclude any possibility of collateral review. Mr Sudi has the right to pursue his complaint of non-compliance with the Charter in the Supreme Court. The point of the Court's decision was simply that this could not be done in the Tribunal itself."

8. It is worthy to note that the Victorian Charter of Human Rights and Responsibilities is very much based on and is, in some instances, almost identically worded as the ACT Human Rights Act of 2004 as amended.

9. It is also common knowledge that the ACAT very much owed its existence and its format to closely following, and building on the experience of the VCAT, and that it provides a similar role and has similar powers as the VCAT. ACT Judges and Magistrates often say that the ACAT is not a court, but is a creature of statute and does not have the powers conferred upon it by a court such as the Supreme Court. We are a Tribunal not a Court.

10. Section 30 of the Human Rights 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".

11. Section 32 of the Human Rights Act, dealing with "Declaration of Incompatibility", states as follows:

(a) a proceeding is being heard by the Supreme Court; and

(b) an issue arises in the proceeding about whether a

(2) If the Supreme Court is satisfied that the Territory law is not

consistent with the human right, the court may declare that the law is not consistent with the human right (the declaration of incompatibility).

(3) The declaration of incompatibility does not affect -

(a) the validity, operation or enforcement of the law; or

(4) The registrar of the Supreme Court must promptly give a copy of the declaration of incompatibility to the Attorney-General."

12. Section 33 of the Human Rights Act then provides that the Attorney-General must, on receiving a copy of the declaration of incompatibility, present the declaration, and his or her response, to the Legislative Assembly. In relation to the Bail Act 1992, Penfold J was of the view that it was incompatible with the Human Rights Act (see, In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147) That was a Supreme Court proceeding. I believe the Attorney-General is considering an appropriate response in relation to that view. It is the first time that section has been invoked.

13. What is clear is that it is the Supreme Court which can make a declaration of incompatibility under our Human Rights Act. There are provisions in the Act in relation to the Attorney-General making statements on government bills and to the role of the Scrutiny of Bills Committee. The Welfare and Legal Rights Centre, assisting the appellant in this appeal, has raised the issue of the obligation of public authorities to act consistently with human rights (see, section 40B of the Human Rights Act).

14. It was alleged here that the public authority did not have due regard to the Human Rights Act. Section 40 of the ACT Human Rights Act clearly defines what a public authority is:- an administrative unit, a territory authority, a territory instrumentality, a Minister, a police officer, a public employee, and an entity whose functions are to include functions of a public nature. It excludes from the list (a) the Legislative Assembly or

(b) a court, except when it's acting in an administrative capacity. It is assumed that the ACAT is a public authority.

15. Section 40A of the Human Rights Act states the meaning of "function of a public nature" and includes public housing as a function of a public nature in subsection 40 A(3)(b)(vi). As noted above, section 40B states "Public authorities must act consistently with human rights". Subsection 40B(1) states

(a) to act in a way that's incompatible with a human right or

(b) in making a decision, to fail to give proper consideration to a

16. Subsection 40 B(2) states,

"(2) Subsection (1) does not apply if the act is done or decision

(a) the law expressly requires the act to be done or decision

made in a particular way and that way is inconsistent

(b) the law cannot be interpreted in a way that is consistent

17. In relation to public housing, subsection 40C is the relevant section here. The office dealing with public housing is a public authority. Hence, it has to have due regards in its operations to the Human Rights Act.

Section 40C states,

"40C Legal proceedings in relation to public

contravention of section 40B; and

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

(a) start a proceeding in the Supreme Court against

(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.

subsection (2), grant the relief it considers appropriate

(a) a right a person has (otherwise than because of

(b) a right a person has to damages (apart from this

and "public authority" includes an entity for which a declaration is in force under section 40D, which means other entities, even if they are not public authorities, can choose to be subject to the obligation of public authorities.

18. I do not think too many organisations have come forward to accept the honour of being included in 40D. Non-government bodies and community housing groups do come within the purview of the provision, and have been deemed to be public bodies effectively for the purpose of the legislation.

19. That section does not affect the right a person has to seek relief to an act or a decision of a public authority. For example, someone who was dissatisfied with a planning decision may apply to the ACAT. If they felt their human rights were being affected they would also have the option of applying to the Supreme Court concurrently.

20. If a person has a compensation claim for the loss he or she has suffered as a result of a breach of human rights by a public authority, they may be able to sue the public authority. They can also take an action, it would seem, if they wanted to, in the Supreme Court. But the Supreme Court could not award damages in relation to the breach of the Human Rights Act. Damages would only flow, effectively, from some other law.

21. Therefore, the position under the ACT's Human Rights Act is that a person in a situation such as the appellant in this matter may start a proceeding in the Supreme Court against the public authority, or she can rely on her rights under this Act in other legal proceedings. The right to other legal proceedings would mean those under subsection 40C(5), namely, the right to have the ACAT determine the matter under another Act.

22. There are rights that people have to contest matters - such as to contest an eviction under the Residential Tenancies Act 1997. However, if they want to invoke that the public authority has acted in contravention of section 40B of the Human Rights Act and that they are a victim of that contravention, they will have to start proceedings in the Supreme Court against the public authority.

23. This view accords with the decision of the Court of Appeal of the Victorian Supreme Court in Director of Housing v Sudi. A decision of the Victorian Court of Appeal is, whilst not directly binding on the ACT, a very persuasive authority. ACT courts, such as the Supreme Court, regularly rely very strongly, and look very seriously, at decisions of other states' Supreme Courts and Courts of Appeal. Those decisions are a very persuasive authority.

24. Given that VCAT is building up probably more jurisprudence than we are at ACAT at present (VCAT's population base is, after all, over 15 times that of the ACT.), it is certainly an authority which I intend to follow and I accept the Director of Housing v Sudi as being the latest and definitive view in terms of its interpretation of the Human Rights Act of the ACT. An issue under that Act in relation to a public authority must be brought before the Supreme Court.

25. The other major issue raised before us deals with the nature of appeals. Section 82 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) states that:

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

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

26. There have been some issues raised as to what procedure the appeal tribunal has or, indeed, should take. I have heard learned submissions from the respondent in relation to this. The ACAT Act does give a fair amount of flexibility to the tribunal. The intent in terms of that section is fairly clear from the words used, although I do not believe it was actually ever discussed as often sections are not in the Legislative Assembly in terms of what would be called in the Federal Parliament "the second reading speech".

27. It is up to the appeal tribunal how it deals with the appeal. It could deal with it as a new application, in other words, as a hearing de novo. As was canvassed with counsel, a hearing de novo does not necessarily mean everything is heard again. The tribunal has adopted and will continue to adopt situations where if the evidence of the tribunal below is to be accepted and used on the appeal, then it does not have to be heard again and due regard can be had to it.

28. The tribunal also could receive any additional evidence the parties may wish to bring. That would still constitute a new application effectively. Conversely, if there was some huge problem with the procedures adopted in the tribunal of first instance, it may well be a full hearing de novo in terms of rehearing everything might be appropriate. However, this would be rare.

29. Alternatively, an appeal can be a review of all or part of the original decision by the appeal tribunal. That also has occurred on a number of occasions before this tribunal. There have probably been grey areas which would seem to be of concern to the respondent**.** How an appeal proceeds is normally something that is decided at the direction hearing stage.

30. This tribunal will adopt a reasonably flexible approach consistent with its charter in the ACAT Act to give quick, inexpensive and definitive justice but it is important to properly regulate how appeals are dealt with. For example, this current case was not dealt with as a new application per se.

31. The respondent was very clear that they wished the relevant dates to be what was before the tribunal as at 1 August 2011 and 5 September 2011 and any evidence that may have been missing at that time would be taken into account as relevant evidence as at that time. Hence, this appeal is not a new application. Given that the appellant is not represented here today we probably have not had as much argument on that as we might otherwise have had.

32. I invited the parties to make comment on that when we got to the hearing rather than delay the hearing any further. It has become somewhat academic. Is it appropriate in a situation like this to look at some fresh evidence even if we are considering the appeal under section 82(b) of the ACAT Act, reviewing all or part of the original decision without any new evidence?

33. It is tidier, I would think, if there is likely to be any new evidence, that it be treated as a new application albeit with 90 per cent of the evidence just being accepted from the tribunal below. That enables us a prompt speedy process.

34. If it is not envisaged that there would be any new evidence, I would regard this matter as a review of all or part of the original decision so that the appeal is not treated as a new application. The only issue of concern is whether the circumstances have so completely changed from the time of the original decision that it would be a denial of natural justice or, indeed, commonsense, to not take those changed circumstances into consideration.

35. It would seem to me that clearly if in a tenancy where $10,000 was owed and the tenant evicted, and two weeks later the tenant appealed the original matter, and then said, "Well I've just won $300,000, I can pay the $10,000. I can even give you rent of a year in advance. I'm happy to stay there. Bung me up to the market rent", that new evidence should be admitted and considered.

36. Apart from the fact that perhaps it would be better for that tenant to buy a property, assuming if they were to stay in public housing, would it be reasonable to not take that evidence into account and just say, "well sorry, you are evicted"? I would hope in a circumstance like that, commonsense and natural justice would dictate that whilst the appeal could be dismissed, at the very least the original order should be varied to be an eviction suspended for a period of time (along the lines of what was in the criminal jurisdiction referred to as a "Gallop bond"), and see how the tenant went. After all, Housing would have lost nothing by such a course of action. It would also be reasonable to allow the appeal against eviction because of the further change of circumstance and negotiate a new lease, or continue the old lease at market rent.

37. Any of the above would be a reasonable course of action to take when there was fresh evidence that was not, or that could not be, before the original tribunal, but it would make a nonsense not to take that into consideration even though it was not an appeal dealt with as a new application or a hearing de novo.

38. There will not be many instances where that is the situation. Obviously for efficiency's sake everyone should be encouraged to use as much of the evidence from the tribunal below as appropriate. If there is no real new evidence, then it should be dealt with as a review.

39. Applicants should know at the time they appeal whether they want to go through the original decision, with nothing new to put before the tribunal or whether there are some things which were not put before the tribunal which should be put now, in which case it can be a new application. I would think it should be very rare that we have a complete hearing de novo when none of the evidence before the old tribunal is actually relied upon.

40. I hope that is of some guidance in terms of how internal ACAT appeals should be dealt with.

41. Now I come to an equally important point. ACAT does get quite a few applications to stand aside ex parte orders. I really can't believe that the Australian post system is as bad as a number of litigants say. ACAT regularly have parties saying that they simply do not get mail, especially mail that tells them of things that are going wrong, wants their attendance or wants their attention to certain things. It is quite amazing the only time that they actually do get the mail is when there is an eviction or something similar or a judgement debt or something that really seems to concentrate the mind.

42. However, the tribunal does on a fairly frequent basis set aside ex parte applications. Then there is certainly a tendency to basically hear it all again. In many instances, it is just as quick and simple to do that and then finalise the matter. But it is something that should be not done as a matter of course and my colleague, Mr Thompson, has not only today but also in previous hearings in the general division referred to a two part test.

43. That test is the standard test in terms of dealing with ex parte matters and applications to set aside ex parte matters. The first test is, is there a good reason why the applicant did not turn up at the original hearing? And secondly , if that is the case, is there then a reasonable case? Does the applicant actually have a reasonable case which indicates that the matter should be set aside and the case be heard?

44. It is a two prong test. Both are needed to succeed. Quite often, people do have a good reason. Examples are: that they were sick, they were depending on public transport, their car broke down, or they had an urgent loved one, like a child, who had to be rushed to hospital. Those are valid reasons. I must say, in terms of this particular case, even though the appellant well and truly knew it was on and was told it was on and was encouraged to come, I have no evidence to disbelieve what she has told me that she actually had a migraine and that she was unable to come.

45. I do find it a little bit strange that neither she nor her mother had any credit on their phone, but I do accept what she told me when I said "Couldn't you go to a public phone or get your mum to?" that the answer in the first instance was "No, she was too crook". The second one was she had not told her mother anything about it because she was ashamed. Now that may or may not be true but at least it is certainly quite plausible.

46. It gives an explanation of why she did not attend even though she was told to be here. I think, she has satisfied the first test as to, on that particular appeal, as to a good reason for not attending. Commonsense would have dictated a day or so later when she was on her feet chasing up the tribunal. That was not done, but that is probably more relevant for the substantive matters before the tribunal.

47. The second point, does the person have a reasonable case? Now, if a person does not have a good case, and if it is clear that the order should stay, the order should stay. Often in this tribunal people apply to have matters set aside. The matter will be heard. Explanations will be given. There will be discussion or, indeed, evidence in relation to the case. And effectively a hearing will take place when there is an application to set aside.

48. In many instances in the past, it has become quite clear to the tribunal that the case is not very good. The member basically got it right because there is no further evidence that would assist the tribunal, even after the person turns up to apply to have the order set aside. So that the second part of the test fails.

49. It is usually noted that, at any rate, even if the tribunal was wrong in doing that, they have effectively heard the case so everyone has had a chance to have their say. But certainly that second part of the test often is not actually reached. On some occasions, quite clearly there is a real issue and the tribunal adjourns the matter further for a hearing, sometimes with an order (if there is concern by either side that a party is trying to just slow the matter down) specifying that someone must turn up for each side and/or an order that the matter will proceed on the next occasion regardless.

50. Sometimes, it is simply stood over because it is quite clear that there is a good reason, first, to miss the hearing, and secondly, the person appears to have a reasonable case to put before the tribunal. But it does have to be a reasonable case. It cannot just be they did not like the order.

51. I make those points in relation to those particular areas of the law that have been raised with the tribunal. I trust they are of assistance to the parties. I would think more so to the respondent than to the appellant, who is here for one particular reason and one particular reason only.

52. There is a fourth principle here. What is the role of an appeal tribunal or, indeed, an appeal court. Superior courts have often been accused of tinkering with lower court decisions for no good reason. That is often done in relation to such things like sentencing in the criminal jurisdiction, or minor readjustments of orders for damages and things like that in the civil area. This is a not uncommon criticism.

53. There is a general consensus that merely tinkering is something that appeal tribunals or appeal courts should not do unless it is essential to redo an order because of natural justice and time factors - for example, which have meant the original order is no longer applicable because of the lapse of time.

54. The general rule on appeals is that an appeal court, or an appeal tribunal in this instance, will be reluctant to interfere with the order of a lower court or tribunal unless there is some manifestly obvious error made which, if it was not rectified, will have a substantive bearing - an adverse bearing - on the case - an adverse bearing that would not be in the interests of justice if it were allowed to stand.

55. It basically means that if the tribunal below got a few little things wrong but the order fundamentally was sound, then it is not going to be interfered with. For example, if someone was after $10,000 for damage to a car, the tribunal below ordered $7,500, it was appealed, and the appeal tribunal thought, "Look, I would have given only $6,000" or, "I would have given $8,500". That is really tinkering unless there is some obvious miscarriage of justice or an obvious injustice if that is not dealt with. And if it is just an opinion, it is far safer just to leave it as it is and that is what normally happens.

56. So we start from the premise that unless there is something obviously wrong, and it would be unjust not to rectify it, in the decision of Senior Member Lennard or Senior Member Anforth, the appeal tribunal has nothing before it that would justify altering the decisions.

57. I must say in this instance this appeal has been fought on the basis of the situation as at the time of the original decision. There has been very little in the way of fresh evidence. The evidence all applies to the situation as at 5 September 2011 or 1 August 2011 or before then. And some of it was evidence not before the original tribunal but it was all evidence that relates to that period of time. So it is all applicable evidence.

58. In terms of 1 August, I think the appellant has given a reasonable explanation as to why she could not be here. Regarding the fact situation on 1 August, we have to look at the fact situation as at 5 September because that is when the appellant was there, that is when she gave some evidence, and that is when evidence was given by the Housing authorities. That is all intertwined with what happened on 1 August, because much of that evidence would have been before Senior Member Anforth when he made his ex parte order.

59. Now, I have already read out, I believe, a statement at page 9 of the transcript of 5 September by Ms Boljkovac. And that basically went through a list of forms sent and contacts that had been made.

Ms Boljkovac also, at page 6, made a number of observations and I will read these into the transcript because this was all the evidence that was before Senior Member Lennard on the 5th and is crucially important. On page 6, paragraph 15, Ms Boljkovac stated:

"Once again I feel this application needs to take into consideration, has there been a reasonable reason why the rent has not been paid? There is - since 5 September 2010 to today there has been two rental payments. One of $150 and one of $300. There has been two conditional orders, yes, granted ex-parte, which Ms Thornthwaite has not complied with.

Housing ACT have no knowledge that Ms Thornthwaite's partner has been in the property, and given the extent of his wages, the arrears could possibly increase. There would be no entitlement to a rebate on $70,000 plus your income, with the full market rent being $330 per week, so that could possibly escalate the arrears even higher.

Once again, Housing ACT has an obligation to share the limited resource that we have with those in the public who need it most and in the most efficient way. And we need to do this in partnership with the tenants who need to understand and accept their obligations. And in this case, Ms Thornthwaite has not accepted her obligations.

Two payment in 12 months is not sustaining a tenancy, or accepting the obligations that rental payments do need to be made. Housing ACT - once again, the housing manager has gone to extensive efforts to contact Ms Thornthwaite regarding her rental arrears and regarding her rental rebate.

On numerous occasions, I can refer to notes that have been entered on the system, where several Housing ACT officers have attended the property, have advised Ms Thornthwaite that she has breached the orders. So Ms Thornthwaite has been aware. Yes, they were granted ex-parte, but has acknowledged that she has been aware of these orders.

This goes back to January 2011, after the first conditional was granted. Payments were not made in response to that. The Housing manager contacted Ms Thornthwaite before the first hearing. I myself contacted Ms Thornthwaite to advise her to attend the hearing. She did advise on the first occasion that she could not attend so I did request that that matter be adjourned. I did contact her after that matter and advised her that the matter had been re-listed for 1 August. I advised her it's imperative that she attend given her non-payment of rent and the level of debt. I also advised her that she should contact Welfare Legal Rights and she has only done so at the last hour after the warrant has been issued.

The debt is over $12,000. There's been income coming into the property for over 12 months. There's only two payments, one of $150 and one of $300, being received in that time. As I said, the debt will probably escalate given that the partner has been there undeclared to Housing ACT for 12 months and the commissioner feels that this application to set aside should be dismissed today and the warrant be executed. There has been very little engagement. There has been virtually no rental payments made in 12 months and given the income that is coming into that property feel that the decision made on 1 August was correct and should proceed today."

"MEMBER LENNARD: I'd like to get some more information, first of all, about the two payments that were made. What dates were they?

MS BOLJKOVAC: 29 January 2011 for $150 and 15 February 2011 for $300.

MEMBER LENNARD: And how were they paid do you know?

MS BOLJKOVAC: It says, I'm assuming by, it says payment received from the account holder so that would be a manual payment of some type.

60. Ms Thornthwaite said, at the bottom of page 7, when asked by

"MEMBER LENNARD: So what made you go in and pay those?

MS THORNTHWAITE: I just wanted to tell them that I knew the order was on there but I was still doing good as, and as I said, the whole time I'd been in there rent was not, I didn't have to think about paying it because it was coming straight from Centrepay to Housing. I wasn't getting it in my bank. It was something that I didn't think about and I have been just full up with my daughter's eye and I know that's no reason and excuse.

MS THORNTHWAITE: I'm saying in relation to the two payments I've been told that I've made four payments and I did make another one and I know it wasn't for the full rent but I did make another one on Saturday. And I've been told there was four payments in the last 12 months and now they're saying there's only two.

MS BOLJKOVAC: I do have a current payment slip at the time of the possible hearing. That might have been the case but from

5 September 2010 to today we've received $450 in rent.

MEMBER LENNARD: But what I'm hearing here is that you knew that there'd been an order made on 12 January 2011 and so you went in and you made two manual payments. After you heard, you knew that that order had been made and that at that time there was nearly $4,000 worth of rent owed. Are you saying to me that you continued to believe that Centrepay was making your payments?

MS THORNTHWAITE: I thought they were and at that time I didn't know that the rent was over $4,000 I was behind and owed $4,000.

MEMBER LENNARD: Did you not read the order? Did you not get the order? It doesn't make sense to me that you were prompted to make two manual payments and yet you say you believe they were coming from Centrepay.

MS THORNTHWAITE: I got told the, I thought it was coming out and the money - - -

MS THORNTHWAITE: No one told me. I just assumed it was coming out of Centrepay because I was still receiving money in January from Centrelink. I paid these two payments on the view that was going on paying back what I owed. Even though I didn't know how much I was in debt I thought those payments were going to what I owed and that the rent was still coming out.

MEMBER LENNARD: And why have you made no payments since 15 February this year?

MS THORNTHWAITE: I haven't received anything. I didn't, and again, I thought it was still coming out. It was something I had not thought about. I didn't think about paying rent from when I moved in there in December 2000. What, given straight from Centrelink 2000, the bank. I didn't even receive that money in my bank account. It was gone away before I got my payments from Centrelink."

61. That is when Ms Boljkovac listed the numerous letters that were sent to the appellant. Ms Boljkovac went on to say:

"MS BOLJKOVAC: There has been numerous correspondence and efforts to contact Ms Thornthwaite. She has been aware that she hasn't been complying. The debt is $12,000 with a substantial amount of regular income coming into that property each fortnight.

MEMBER LENNARD: I find this really kind of hard to set aside, I'm sorry, because on the evidence - and I can understand, really well understand, how well with a daughter with a serious condition that your mind would be elsewhere. But given the amount of contact that you've had from ACT Housing, the fact that we've been - - -

MS THORNTHWAITE: My Housing manager, I've not spoken to

Ray Brown. No one's been - no Housing manager's been to my house. I've asked my mother. I'm at work four days a week. My mum is there three days of the week.

MEMBER LENNARD: But I have evidence that the, the representative of ACT Housing who's here today has spoken to you about this. While I can understand, and I have had the experience that people don't understand what's happening with Centrepay, once there's an order is made and some payments are made I find it quite difficult to accept that explanation."

62. She asked what the total arrears were. That was told to her. There was then further comments made. Ms Boljkovac talks about the fact there were two young children, seeking an adjournment, and worried about placing them at risk. She said, "I recognise there are children in a lot of problems." And Senior Member Lennard said, "I know." There's some further talk there. Ms Faulder says:

"MS FAULDER: - - - when they face eviction. However, albeit the reasons for what's occurred in the past I am not aware of at this stage however I am attempting in a very short, in a very brief adjournment period to put stuff in place so that these repayments are now routine and regular as replacing sporadic as they have been.

MEMBER LENNARD: Look, there are a couple of difficulties in the way. I actually don't accept the evidence that I've heard from the tenant that she believed that these were being paid in one way. And there's a huge amount of evidence from ACT Housing of phone calls and letters. And while, yes, somebody might have tidied up some of them it means that either they've been deliberately ignored or they've been deliberately ignored. I can't think of a second explanation for that volume of correspondence not being responded to.

And, you know, you need to argue is it enough that the rent will be paid at $12,000.

63. There's then some further discussion. Member Lennard on page 12 says:

"MEMBER LENNARD: Might I say though that having said to Ms Thornthwaite that one of the problems is the large amount. Now, one of the problems is the delay compounded by the continual asking for and granting off termination and possession orders on conditions where they're ex parte and the Tribunal get, it's not good for us and it's not good for you".

64. Senior Member Lennard then goes on as to state:

"MEMBER LENNARD: It rests on a number of other things and I think that somebody - I just don't think that I can form that opinion no matter what the evidence is about the likelihood in terms of income only.

The one thing that does concern me is that it does seem to be problematic to ask somebody to vacate a house when they're about to drive to Sydney with a child for an operation. So I'd be inclined to give a further 21 days for the issue of the warrant. The other benefit of that is it gives you some time to seek affordable negotiated settlement because if the warrant's not issued for got 21 days, 21 days to change their mind which is probably going to be easier than changing mine.

So I'm going to dismiss the application to set aside. I'm going to delay the issuing of the warrant from 21 days from today. That's to allow you to go to Sydney to have that operation without this added complication. I don't think that's really fair..I have to say that if the arrears were allowed to get this much, three

weeks longer, in a sense, is not going to make too much of a difference."

"So that will be my decision but that doesn't mean you can't continue some negotiations with Housing along the way. Thank you."

66. There is nothing in that transcript or what I have read out there which I think would indicate that Ms Lennard made any real fundamental errors in what she did. Ms Boljkovac read out a number of contacts with the appellant. A further list has actually been provided to the tribunal. I will not go into that. But just looking at the time Ms Lennard made that order, she was quite clear that she had the ability to assess the parties at the time. There is nothing in there where she felt she could do anything other than just adhere to the ex parte decision made by Mr Anforth, and she was in a position to hear evidence, hear talk and ask questions of the appellant and also Ms Boljkovac appearing for Housing.

67. I think it is probably indicative that Ms Lennard, as the Presiding Member did what members of Tribunals and judicial officers are entitled to do and do on a regular basis, and that is, formed her own opinion on the facts before her. She clearly stated on page 11 of the transcript that there were a couple of difficulties in the case. First and foremost was, "I actually don't accept the evidence that I've heard from the tenant." Then she went on to refer to a huge amount of evidence from Housing. Those are decisions that she has made and she was entitled to make on the evidence. In terms of the evidence that was before her, that was a proper conclusion in the view of this tribunal to actually make.

68. So in terms of that, this tribunal would need then to be very much persuaded with further evidence relevant to the period that may not have been before Ms Lennard to indicate that it is worth having another look. Is there anything further that relates to the period which is something that we need to look at, that was placed before the Tribunal today?

69. Firstly, Exhibit F indicates that - and Mr Adkins took the tribunal through this - Centrelink deductions were proceeding through most of 2010, until

70. It is interesting that the appellant said around about that stage that she and her partner went into Centrelink and actually declared the proof of their then income. Then they indicated that they would not be entitled to any further payments although the appellant then received further payments - until about January 2011, or on her evidence today January or February 2011. If the rent stops coming out of your direct debit back in August 2010, surely you would notice that you would be getting $200 or $300 a week or even a fortnight, more from Centrelink. You would notice that there is more money each pay period in your Centrelink payments.

71. Direct debits stopped in August 2010. There is still a credit being given of $179.40 from 29 August 2010 and that continues. In fact, I think it drops down to $169.50. It continues right up to 20 March 2010. Included in that of course is $150 paid on 29 January 2011 from the account holder and, as we have heard, $300 on 15 February 2011, but the rebate continues up until 20 March 2011 when it ceases. There is no new rebate, no new rebate form and then the debt balloons out to what it is today.

72. The rebates kept continuing but on the appellant's evidence it was not that the Centrelink payments stopped. She is still getting some money and it is more than little bit surprising that she's not aware of that. Indeed, in her evidence she really seemed to indicate initially she was not aware of getting anything much, and that there was very little contact between herself and Housing.

73. She indicated that she had a neighbour next door who had a medical condition, that she also found him going through bins and that he might have taken her mail, and also indicated that she did not get the order of the Tribunal of 12 January 2011, and the order in April 2011. After further evidence was put to the tribunal, I asked her in relation to the order of

12 January 2011 and that she had indicated, again in the transcript of

5 September 2011, that in fact she did get that order. She indicated to me after this was put to her that in fact she did get the order and that is a note which is part of Exhibit G where the Housing officer said:

"Spoke to the tenant, advised she'd breached her ACAT order. The tenant stated she had only received the letter from ACAT last week so wasn't able to make a payment until today. Tenant requested to know what her rental arrears now was. Tenant advised $321 per fortnight was payable on the account and she committed to make that payment today but is financially unable to make the payment due on 14 January. Advised that I am unable to negotiate the ACAT orders, she would need to make payments as stated on the order or provide Housing with vacant possession. Tenant was advised of further things."

"would speak to her Housing manager on his return to work and discuss this call. Spoke later that day to the tenant. Tenant said they were distressed. Only had 250 to last until next pay day. Housing manager discussed with the tenant. Next day, 29 January, home visit provided the tenant with emergency assistance, $200 food voucher and discussed community support. She was advised she was still in breach of the ACAT orders. Would have to remedy ASAP as the case would be referred back for further action."

75. A further $150 was then paid. She suddenly remembered that she actually had received the ACAT order. I believe I also indicated just how much it was and she had some recollection then, although earlier on today she was quite adamant that she had not received any of these orders even though the address to which the order was sent was where she lived.

76. I have considerable problems accepting at face value everything the appellant has said. I think it is clear to me that the second time around she accepted that she was aware of the ACAT order of 12 January and that she was aware of what rent was to be paid and took some steps, but not enough, in relation to that.

77. I have marked in Exhibit G when there was actually some contact made with the tenant. On 20 July, there was this note from the Housing officer saying:

"I called Ms Janelle Thornthwaite in regards to her tenancy. Discussed that he was calling in regards to her rental arrears. Rental payment hasn't been made since February this year and Janelle acknowledged this. I asked Janelle if she was aware that her tenancy had been referred to ACAT for Friday 22 July. She stated she was aware of the hearing. She was asked if she was still working. She said she's employed, works at the school on holidays. She couldn't go to the hearing and so she was told she'd be rung tomorrow to see if they could change the hearing" - which apparently occurred.

78. The officer said that he ended the call by stating to her, "I'm going to send a rebate rental application form, forms with payment options with a reply paid envelope for her to return. Throughout the telephone conversation an unidentified male continued to talk in the background and was trying to talk over Janelle and advising her what to say."

79. There was another file note on 19 July in relation to a telephone conversation, "On 15 June this year I tried to call Janelle in regards to her rental arrears. I called mobile number 0408656775 and there was no answer. I've left a message for Janelle to call the Housing manager urgently."

80. I think the tenant said in answer to the question by

Member Thompson that there were five or six instances of messages being left but that she did not have a message service. I am not quite sure what to make of that. The Housing officer says he left a message. She says she does not have a message answering service. I suppose it is possible that she did not get the message even though the Housing officer left the message. I assume that that was the case.

81. However on 7 June 2011, Shawn Richards spoke to the tenant during a home visit, and advised her to contact Graham Brown to discuss urgently her rental arrears. She said she made contact on 6 June this year, "Matter sent to operation services of ACAT seeking warrant of eviction due to breaching an order. No payment since. That's the second time she's breached the order. Ms Thornthwaite has been provided with all the payment options available to her. She had not provided any method of payment that was sent to her to arrange payment of rental arrears."

82. There are some further internal notes, on 28 April 2011: "I called

Ms Thornthwaite on her mobile, again left a message." "A breach letter was served on Friday the 11th. (That was due to the tenant failing to comply with the CT, matter referred to operation services and that's on the 14th and the 15th $300 is paid.) A breach letter was served on the 11th, rental arrears fact sheet, eviction fact sheet, bank direct debit form, Centrelink rent direct deduction form, six payment vouchers .................support agency fact sheet and sent to exchange in the lease of information, care financial brochure, loan community services, sustaining tenancies program brochure, Welfare Rights and Legal Centre brochure and reply paid envelope served at notice."

83. I have already referred to the contacts made on 28 and

27 January 2011. There is, and again going back into 2010, further attempts to contact the tenant, including quite a few in November 2010 where Housing called and there was no answer.

84. It was pointed out by Housing - in relation to Exhibit E. A notice to vacate was issued on 25 June 2010. It stated in paragraph 2 of that letter, "If you disagree with this action you may request a review by filling out and returning the application for a review of decision attached to this letter." On 6 July, the tenant applies for a review. She was shown by counsel for the respondent the first page of the application for review decision, which is Exhibit D, which states yes in her writing and no - that she doesn't require an interpreter. They are obviously in response to Exhibit E.

85. Having heard the appellant, I think really the evidence we have heard just expands upon what was before Senior Member Lennard on

5 September 2011. I am certainly satisfied that back in January 2011 the tenant certainly knew this was serious. She certainly knew that she had at least received that conditional termination (CT) order and it was for the amount of about $3,900 arrears. I find it somewhat inexplicable that if money was coming in from Centrelink still, she was not aware of that. Having been warned, having had a really serious series of discussions with Housing, having to get the $200 worth of vouchers on 28 January, and having had these discussions on 27 January 2011 where it was painfully obvious there was a problem, she did absolutely nothing about it.

86. I am really uncertain as to why that was so. I do not accept the tenant's explanation as to not being aware of any of this or, indeed, that Centrelink were still making payments. I think that would have been painfully obvious by the 27th and 28 January 2011 that that simply was not the case, that there was a big debt outstanding and that it only could get worse.

I have got no reason to disbelieve the notes by Housing officers when they did actually manage to make contact.

87. I do not and cannot accept one way or the other whether the 5 or 6 messages were left or not, because there was no direct evidence from Housing, and the appellant has stated, on oath, that there was no message answering services on her phone. It is possible, I suppose, someone could seek to leave a message thinking that there is a message service, and there is not. So, I give her the benefit of the doubt on that one. Even so, there is a plethora of contact and attempts to contact, and letters being sent. I do not accept that all of these letters went astray, especially when we are told earlier this morning that she did not get any order from the tribunal and, then she recants on that and states that she did upon being shown clear evidence that she was well aware of the order.

88. I find Ms Lennard was correct, on the evidence before her, in finding that the tenancy, in her view, was not reasonably sustainable. I must say, having heard further evidence today, that I have a similar concern. I note I do not have to decide that because what we have to look at is what the situation was when Ms Lennard dealt with it on 5 September. Were I to decide that, I would have some serious concerns that at this point in time the tenancy is reasonably sustainable. I do not believe it is sustainable.

89. I note the partner has left, but the partner is actually paying the rent payments for the last few weeks. As was put by the counsel for the respondents, there is nothing to say that that might not change tomorrow. It is unfortunate. It is never nice when someone is evicted, but this eviction is warranted. Even if this tribunal was able to deal with matters of human rights, where agencies perhaps do not do what they should do, and even if we could consider that (I think it is referred to as a trial within a trial in the Victorian case) the ACT Human Rights Act is not there to ensure that people can stay in tenancies and not pay rent.

90. It has been clearly stated in a number of decisions in VCAT and indeed accepted here, that tenants have to pay rent. They do not have an automatic right to property. If they want a property in a certain part of town, that right is not automatic. The housing authorities have every right to run their business professionally with a view to looking after the rights of all tenants, and that implies the vast majority of tenants who pay their rent and who take a very dim view of people who do not pay their rent when they have been paying rent themselves, often in circumstances as difficult as the tenants who do not pay rent, or in some instances, more difficult.

91. Accordingly, this tribunal firstly has no option but to dismiss both appeals for the reasons I have given. Whilst I accept the tenant's reason as to why she could not come to the tribunal hearing on 1 August, Senior Member Anforth certainly had ample information before him to justify the second leg. That is, that she did not have a strong case, and, therefore, the facts before him were ample to justify an ex parte eviction. And I think that is amply borne out by the further evidence given on 5 September. I certainly still have those concerns which Senior Member Lennard had.

92. Accordingly, The appeal in relation to Senior Member Anforth's decision of 1 August 201 is dismissed. The appeal in relation to Senior Member Lennard's decision of 5 September 2011 is also dismissed.

93. However, as Ms Lennard said - it is not necessarily the end of the road. Mr Adkins said that there are instances where renegotiations can occur with Housing where people are allowed back in. I do not know the nature of the tenant's relationship with her partner. In fact, the appellant has been probably, understandably guarded in relation to that because of the fact she is on oath. It seemed from the letter from the Welfare Rights and Legal Centre that it was a permanent arrangement.

94. It appears that whilst there are issues with her partner that he gets angry, there are no issues of physical violence. Clearly, the evidence before the tribunal is that he has been paying the $660 per fortnight over the last few weeks. Now whilst it is quite right to say that there is no guarantee, and the tribunal has no satisfaction, that would continue and I strongly suspect it may not, certain possibilities do emerge.

95. The appellant has told us that at this stage there may be a reconciliation. One of the options may be, she and her partner (given that he has a reasonable income) can access the private market. That may not be out of the question. It depends on their relationship. And I do not expect the appellant to tell me about that. She stated it I think as best as she could given her current predicament.

96. The other options of course are that there are other housing providers in the ACT. There are in fact refuges and community providers. Whilst it would be quite inappropriate of this tribunal to order Housing to have a look at that, Housing obviously would probably talk to the appellant about that.

97. The appellant has also indicated her family situation. It would seem there are a number of options there. It is not the case that she is just simply going to be out on the street. She does have a number of options.

98. However, I do not think people can expect, if they only make two or three payments of rent over a 12 month period, to be maintained at the public expense, especially when there is significant private income, at least at that stage available. I cannot understand why - if the appellant were aware of this, and I accept that she was aware of this in January - she and her partner could not have done something.

99. She perhaps had her own reasons for just putting her head in the sand. That's tragic. She is only affecting herself and her children by doing that. This is a tenancy where Housing - and if we are looking at human rights - busted a gust basically, in January and again in April to give her a chance. And the debt kept going up. Now Housing would have been well and truly justified in April in seeking an eviction, but they gave the appellant a further chance there and she did not engage with them.

100. I do not know why. I initially thought it might have been because the appellant was in such a dreadful domestic relationship with her partner that made it possible. And that could explain it. But it seems that that was not the case. So I do not know what the reason was.

101. Clearly she has brought this on herself. It in itself is a tragedy but she does have a number of options. I still do not quite know her exact circumstances, but it seems she probably has more options than a number of other people who have been in a similar situation. So, I encourage her to take advantage of them and use them to the best of her ability to make sure that there is a roof over her head for her two children. It is important for her but it is especially important for her children and her baby to be.

102. I will come to the formalities of the eviction in a second. I ask Member Thompson, if he has anything to add.

103. I found it difficult to get information from the appellant in relation to this. Some of it I just presumed. But what I was concerned about was why Senior Member Ms Lennard did not accept what the appellant had told her in evidence about that, and whether or not she was justified in forming that view. So, that is what I was trying to get at in some of the questions.

104. I can see from the payment sheets - and the only record of payments we have is the one that Housing was supplied in relation to that. We have no records or financial information from the appellant, nor did she have her bank statements here. I do not know what entitlements she had from Centrelink and what they paid her.

105. But the presumption I made was that she was pregnant and expecting a baby up until early last year so that she would not have been working. Hence, she was getting some benefits from Centrelink at that point in time. While the benefits were paid to her, and prior to that, her rental arrears stayed manageable

106. In January 2010, the rental arrears were about $108 and then they started going up gradually. Centrelink kept paying the appellant benefits up until June 2010, when she received the letter of eviction from Housing.

107. On 15 July 2010, there was a payment of $331 and then on 29 July 2010, there was another payment of $331. Still at that stage the appellant's arrears stayed around about, constantly around about, between $1600 and $1200, depending on when the payments were made. A payment of $251.79 was made on 25 August 2010. Another payment was received for $119.34, which brought your arrears at that stage to around about $1000.

108. From that point onwards, there were no payments made but the appellant was still getting credit right up from the housing rebate from that point in time. From 26 August 2010, Housing rebated the appellant right through until 20 March 2011, which is some seven month period. If the appellant's partner's income is taken into account for those seven months, she is going to end up owing a bigger debt. I did not want to push it any further than that, because I did not want her worse off than she is now in relation to that.

109. However, I find it difficult to accept, as Ms Lennard did, that the appellant did not know her rent was not being paid. We can only do something to help her here if we found out that Ms Lennard has made the wrong decisions. Now there are other avenues for the appellant. I note that the appellant is not a lawyer. She said about her right to housing - that the argument in relation to the Human Rights Act. That can be dealt with only in the Supreme Court, not in the tribunal. There is really nothing before us, and nothing produced by the appellant, that would make

Mr Stefaniak or me form the opinion that Ms Lennard was not justified in forming the opinion she did in the first place.

110. Therefore, what the Appeal President said in relation to that is correct, that is, the appeal has to be dismissed. I am not going to push the other matters because I do not think that it is in the appellant's interest interest to do that.

111. The amount of money owed is $13,770.90. I have already ordered that both of the appeals are dismissed for the reasons I have given. And also the order of Senior Member Lennard is varied by the following updated order made in its place. Ms Lennard's order specified dates which clearly are no longer applicable. So the simplest thing is to vary her order by updating it.

• The residential tenancy agreement is terminated. Possession

of the premises shall be given to the lessor at 9 am on

Tuesday 29 November 2010. That is 20 days from now. The maximum I can give is 21 days. So I'll give you 20 days;

• The tenant and any other person claiming right of possession

through the tenancy is to vacate the premises in accordance with that order;

• The deputy registrar is to issue a warrant for eviction for the

premises if vacant possession is not given by the appellant at

113. Further, the tenant shall pay the lessor an occupation fee at the rate of $47.15 per day in addition to the rent from today until the date possession is given. If the tenant wants to do so, she can leave the premises early and does not have to stay there until the 29th of November 2011. The tenant can pay the amount weekly.

114. The tenant is to remove all goods and return the premises in a clean condition by 9 am on Tuesday 29 November. If any goods are remaining after the date of vacate possession, they will be deemed uncollected goods and the Uncollected Goods Act 1996 applies and they are storage and disposal.

115. Further, the tenants are to pay the lessors the sum of $13,770.92. Details of how the payment is to be made are to be worked out between the lessor and the tenant.