Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 56, 79, 82

Residential Tenancies Act 1997 ss 41, 47, 49

Cases cited: Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11

Mark v Australian Broadcasting Tribunal [1991] FCA 570; (1991) 32 FCR 476

Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 130

B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219

The Legal Practitioner v The Council of the Law Society of the ACT [2011] ACTSC 207

The Medical Practitioner v The ACT Medical Board [2010] ACAT 63

1. Appeal allowed.
2. Application dated 12 January 2016 for a termination and possession order is dismissed.

1. This appeal arose from a decision of the tribunal to make a termination and possession order (T&P order) under section 47 of the Residential Tenancies Act 1997 (the RT Act). The background can be briefly stated.
2. The appellant was (and remains) a tenant of property leased from the respondent, the Commissioner for Social Housing (the Commissioner).
3. On 12 January 2016, the Commissioner applied to the Tribunal for a T&P order under section 47 of the RT Act. The Commissioner relied on the tenant's non-compliance with a notice to vacate dated 18 June 2015 served on the tenant pursuant to clause 94 of the standard residential tenancy terms. The notice required the tenant to vacate the premises at the end of a 26 week notice period, being on or before 30 December 2015.
4. On 18 February 2016, the tribunal heard the application and then made a T&P order. Paragraphs 1, 2 and 3 of the order were in the following terms:
   1. The residential tenancy agreement is terminated at 10:00am on Tuesday, 29 March 2016.
   2. The tenant must vacate the premises on or before 10:00am on Tuesday, 29 March 2016.
   3. If the tenant fails to vacate the premises as required by paragraph 2 of the Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
5. The appellant appealed from the orders. He did so on 5 grounds, 4 of which were pressed:
   1. The tribunal erred in law when it suspended the operation of the T&P order for more than three weeks.
   2. The tribunal erred in law when determining there is a discretion to decline to issue a warrant after an unconditional termination and possession order is made.
   3. The tribunal erred by failing to apply the correct legal tests when considering whether to adjourn the application.
   4. The tribunal failed to afford the appellant procedural fairness by determining the application without considering the circumstances of the tenant.
6. In these reasons for decision, the word 'tribunal' is used when referring to the tribunal that conducted the original hearing. The word 'Tribunal' is used when referring to the ACT Civil and Administrative Tribunal generally. The words 'Appeal Tribunal' are used when referring to the appeal tribunal that heard this appeal.
7. On 6 July 2016, the Appeal Tribunal heard the appeal. Ms A McCormick appeared for the appellant. Mr C Adkins appeared for the Commissioner. At the conclusion of the hearing, the Appeal Tribunal upheld each ground of appeal, allowed the appeal and ordered that the Commissioner's application for a T&P order dated 12 January 2016 is dismissed. The Appeal Tribunal gave a short explanation for why the appeal was allowed, and stated that more detailed reasons would be published in due course. The Appeal Tribunal now does so.

1. It was common ground that after making the T&P order, section 47(2) of the RT Act permitted the tribunal to suspend the order for a specified period of no more than 3 weeks. Section 47(2) states:

(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.

1. In this case, the tribunal made a T&P order to take effect on 29 March 2016, nearly 6 weeks after the date of the order. It is not clear whether the tribunal realised the statutory limit on the period for which a T&P order could be suspended. The tribunal said:

I am not making any orders suspending it because I have already built the suspension into the [order][1]

1. On appeal, the Commissioner accepted that the tribunal's order was beyond power under section 47(2), but submitted that the tribunal had power under section 56(d) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) to specify the date upon which the order would take effect, and in this case 29 March 2016. Section 56(d) provides:

_(d) take any other action in relation to an application - _

(ii) that is consistent with this Act or an authorising law.

1. The transcript of the tribunal proceedings does not reveal the power, or any power, upon which the Senior Member relied when determining that the T&P order would take effect on a future date. Reliance on section 56(d) as a source of power appears to have arisen only on the appeal.
2. It is trite but relevant to observe that the Tribunal is a subordinate body created under statute. Any jurisdiction or power it exercises must be conferred by an enactment. It has no general or inherent jurisdiction to make orders, however appropriate or reflective of "good policy" they may seem.[2]
3. Orders or decisions may be within power, even if the decision maker was not aware of the power exercised at the time, but the Appeal Tribunal rejects the submission that section 56(d) of the ACAT Act gave the tribunal a general, residual or other power to make a T&P order that would take effect at some future point in time, meaning in this case 29 March 2016.
4. Section 56(d) permits any "other action" not at large, but action "that is consistent with... an authorising law". In this case, the tribunal's stated intention was to suspend the operation of its order until 29 March 2016. To "build the suspension into the order", rather than make the order and suspend its operation, made no practical difference. To construe section 56(d) as permitting such action would be inconsistent with section 47(2) of the RT Act which limits suspension of a T&P order for a period "of no more than 3 weeks".
5. Whilst not strictly relevant to the appeal, such an approach would also be beyond power and inconsistent with section 49(5) of the RT Act if the Tribunal were to make a T&P order under section 49 of the RT Act and then ordered it to take effect from a date more than 3 weeks after the date of the order.
6. For these reasons, the Appeal Tribunal allowed ground 1 of the appeal.

Ground 2: discretion to issue a warrant for eviction

1. In the proceeding before the tribunal, the appellant requested an adjournment of the hearing of the application on the grounds that there were good prospects that his circumstances would soon materially change. The tribunal was sympathetic to that possibility but elected nevertheless to make the T&P order on the grounds that the appellant had two avenues for resisting the implementation of the order, namely (i) opposing the issue of a warrant for possession; and (ii) appealing to the appeal tribunal.
2. In relation to the issue of a warrant, the tribunal said:

[Your client can] come in and file an application to oppose the issue of the warrant. In which case - and on the hearing of that, he can raise any new change, relevant circumstances. ...

And it is not a certainty that the warrant would be issued. It may, it may not. I can't bind whoever may or may not be here.[3]

1. In relation to an appeal, in response to a comment from Mr Phillipson appearing for the Commissioner that the appellant's circumstances may change, the tribunal said:

Yes, then the appeal tribunal can have regard to those changed circumstances. That is true. Yes.[4]

1. In the tribunal proceeding, the solicitor for Mr Williams raised a concern that the anticipated changed circumstances might not have eventuated within the appeal period, to which the tribunal said:

Well, that would be a matter for you then to argue with the appeal tribunal saying that [it] is not [your] fault that it has been held up, we are still waiting for the decision and you may be up to persuade the appeal tribunal to adjourn the matter.[5]

Anyway, look I think what I will-in the light of-I think because I don't need to speculate at the moment, I can-there is the orders-the availability is there to make an order terminating it at a date sufficiently in the future, that some of the speculation will be taken out and other-and the rest of it may be much clearer. And either by way of the warrant process that I described, or by way of appeal to the appeal tribunal, the tenant will have one of two-the option between two opportunities to review the matter in the light of any new circumstances that have in fact occurred. So I will give him to the end of Easter which should be the 29 March.[6]

1. On appeal, the Commissioner accepted that the tribunal erred when saying that if the Commissioner requested a warrant for eviction the Tribunal could consider changed circumstances and would have a discretion not to issue the warrant. There is no discretion. Section 41 of the RT Act provides:

_On request, the registrar must issue a warrant for the eviction of a person if - _

(a) the ACAT has made an unconditional termination and possession order; and

(b) the person continues to reside at the premises in contravention of that order.(emphasis added).

1. The tribunal's mistaken understanding of the law does not vitiate order 3, which went no further than noting that the Commissioner "may request" the Tribunal to issue a warrant if the tenant failed to vacate.
2. The ground of appeal focused upon the tribunal's mistaken understanding that if the Commissioner requested a warrant the Tribunal had a discretion to refuse it which, if exercised, would enable the tenant to remain in the premises notwithstanding the T&P order. The question on appeal was whether that mistaken understanding of the law had a material bearing on the tribunal's decision to make the T&P order.
3. Mr Adkins for the Commissioner submitted that the mistaken understanding had no such bearing and that the tribunal made its decision by reference to the facts and circumstances that existed at the time the Senior Member was considering the application. He submitted that the tribunal's comments about the rights to challenge any application for a warrant, or to challenge the T&P order on appeal, were merely to inform the tenant of further steps he could take if the order were made, but did not have any bearing on the tribunal's decision to make the order.
4. Having perused the transcript, particularly the passages quoted above, the Appeal Tribunal rejected the Commissioner's submission. It is apparent from the transcript that the appellant's perceived options of resisting the issue of a warrant and exercising his appeal rights were the primary reasons for the tribunal deciding to make the T&P order rather than adjourn the application.
5. The Appeal Tribunal considered the ancillary question of whether the tribunal's mistaken understanding about a discretion not to issue a warrant did not materially affect the outcome because the tribunal also had regard to the appellant's appeal rights. The Appeal Tribunal concluded that this approach did not arise because the tribunal also misunderstood the role of the appeal tribunal.
6. The passages quoted above, particularly the propositions that the appeal tribunal could consider changed circumstances and that the appellant might be able to persuade the appeal tribunal to adjourn the hearing of the appeal until further circumstances became known, demonstrated a mistaken understanding of the appeal tribunal's functions. The appeal tribunal's role is not to conduct further merits review based on facts and/or further facts then before it.
7. The Supreme Court[7] and the Tribunal[8] have explained that for an appellant to succeed on appeal to the appeal tribunal the appellant must show error of fact or law in the decision under review.
8. Under section 82 of the ACAT Act, the appeal tribunal may, as it "considers appropriate", deal with the appeal as a new application or as a review of all part of the original decision, but that procedural flexibility does not displace the need for an appellant to demonstrate error in the decision under review.
9. In Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11, Presidential Member Symons said:[9]
   1. An appellant does not have standing to an appeal as of right and is required to identify a question of fact or law (section 79(3)). An appellant cannot merely request the re-exercise of a discretion.

1. In ACT Human Rights Commission v Raytheon Australia Pty Ltd Master Harper stated, in relation to the Administrative Appeals Tribunal:

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

1. Acting President Chenoweth also stated in Das v A & A Airconditioning (Civil Disputes):

"The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision; if that were so there would be no point in the original hearing..."

39Pursuant to subsection 79(3) of the ACAT Act, there must be a question of law or fact identified on appeal that enables the Appeal Tribunal to consider whether the Original Tribunal made an error as to the law or facts raised in those questions. (footnotes omitted)

1. In any event, it is a perplexing proposition that the tribunal would make a T&P order with reliance on the appellant's perceived right to have it set aside on appeal.
2. For these reasons, the Appeal Tribunal was satisfied that the tribunal's misunderstanding of the law concerning the issue of a warrant and the role of the appeal tribunal materially contributed to it making the T&P order. Ground 2 was therefore allowed.

Ground 3: miscarriage of the discretion not to adjourn

1. The parties accepted that ground 3 amounted to a rephrasing of ground 2. The only material distinction between grounds 2 and 3 was that ground 2 focused on the tribunal's mistaken understanding that the appellant would have an opportunity to resist issue of a warrant for eviction, where ground 3 focused on whether that misunderstanding had a material bearing on the tribunal's decision to refuse an adjournment of the application for the T&P order rather than hear and determine it on the day.
2. For the reasons set out in response to ground 2, the Appeal Tribunal was satisfied that the tribunal's misunderstanding about the appellant's right to resist the issue of a warrant and the role of the appeal tribunal on appeal had a material bearing upon the exercise of the tribunal's decision not to adjourn.
3. Accordingly ground 3 was allowed.

Ground 4: miscarriage of the discretion to refuse a T&P order

1. It was common ground that the Tribunal retains a discretion whether to issue a T&P order under section 47 of the R&T Act, even where a lessor relies upon a so-called 'no cause' 26 week notice to vacate issued under clause 94 of the standard residential tenancy terms. Such is clear from the word "may" in clause 94. It was also common ground that the tribunal recognised it had that discretion. At the commencement of the hearing the Senior Member said "But I have got to exercise the discretion here"[10] which at least recognised the existence of the discretion.
2. The Appeal Tribunal accepted Mr Adkins' submission that the grounds for exercising a discretion not to make a T&P order under section 47 in response to a 'no cause' notice to vacate are much narrower than may be available in response to breaches of a tenancy agreement. Such is implicit from a notice issued 'without cause' for a 26 week period.
3. The conclusions of the Tribunal from time to time upon whether to exercise the discretion may legitimately differ from case to case, but it remains a matter to consider according to the facts and circumstances in each case. In particular, section 47 does not confine the circumstances in which the discretion may be exercised. It is one thing to consider and reject circumstances for why a T&P order should not issue. It is quite another not to consider them at all.
4. In this case, the appellant put forward his personal circumstances as to why an order should not be made. For example, he had been living in the house for eight years, he has six children, there was no suggestion of any breach of any provision of his tenancy agreement and there was a real prospect that he would soon be able to return to his house. These circumstances might not have been sufficient to refuse a T&P order, especially in the context of 'no cause' notice to vacate, but they were relevant considerations when determining whether to exercise the discretion.
5. However the tribunal positively ruled otherwise, stating:

The fact that he is indigenous or that he may have been hard done by or et cetera, is relevant in some contexts, certainly to court sentencing things and things of that kind but the range of relevant issues that I have got to consider in this statute, I would think that would be an appealable error on my part to do that.[11]

1. It is, with respect, difficult to understand why the tribunal thought that it would be an appealable error to consider the personal circumstances of the tenant. Indeed, where the Commissioner's essential function is to assist those in need with affordable housing, that the tenant may have been "hard done by" is an important consideration when deciding whether to exercise the discretion.
2. For these reasons, the tribunal was in error. Accordingly, ground 4 was allowed.

1. Where the Appeal Tribunal upheld all grounds of appeal, the appeal generally was allowed. The question then became what was the appropriate relief.
2. The appellant submitted that the application for the T&P order should be dismissed. The Commissioner did not put a position, but agreed with the Appeal Tribunal's conclusion that it needed to consider whether to hear the application for a T&P order afresh or dismiss it.
3. The Appeal Tribunal concluded that the effluxion of time since the application for the T&P order was brought and the material events that had occurred since it was brought had so significantly changed the factual landscape that it was not appropriate for the Appeal Tribunal to hear the application afresh. Rather, the initiative rested with the Commissioner to decide whether to make a fresh application based on current circumstances.
4. Accordingly, the Appeal Tribunal made orders that the appeal was allowed and that the application for a T&P order is dismissed.

[1] Transcript of proceedings 18 February 2016, page 20, line 10

[2] Mark v Australian Broadcasting Tribunal [1991] FCA 570; (1991) 32 FCR 476; Re Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309

[3] Transcript of proceedings 18 February 2016, page 15, lines 24-31

[4] Transcript of proceedings 18 February 2016, page 16, lines 8 - 13

[5] Transcript of proceedings 18 February 2016, page 17, lines 32 - 35

[6] Transcript of proceedings 18 February 2016 page 19, lines 26 - 30

[7] B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219 at [11] - [18]; The Legal Practitioner v The Council of the Law Society of the ACT [2011] ACTSC 207 at [6] - [17]

[8] The Medical Practitioner v The ACT Medical Board [2010] ACAT 63 at [30] - [34]

[10] Transcript of proceedings 18 February 2016, page 6 , lines 40 - 41

[11] Transcript of proceedings 18 February 2016, page 10, lines 39 - 44