BARLOW and BERGIN (Civil Dispute)

[2011] ACAT 63

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BARLOW AND BERGIN (Civil Dispute) [2011] ACAT 63

XD 165 of 2011

Catchwords:             CIVIL DISPUTE – could residential tenancy proceedings in the Tribunal be a ground for an action for malicious prosecution or an abuse of process? – was the action for malicious prosecution a roundabout way to seek costs in previous tenancy proceedings in the Tribunal? – the character of such action as a belated counterclaim or defence in relation to previous proceedings – Anshun estoppel: prevention of re-litigating matters that have been previously litigated, or could have been raised in previous proceedings – tort of malicious prosecution is limited to criminal law and has limited extension to civil action – instituting tenancy proceedings is not malicious prosecution – no evidence that the lessor’s action was for an ulterior motive.

List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss.16 & 48

List of cases:             A v State of New South Wales [2007] HCA 10

Cachia v Hanes [1994] HCA 14

Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100; [1843] EngR 917; 67 ER 313,
Lawrence v Nikolaidis [2003] NSWCA 129
Port ofMelbourne Authority v. Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Sharp v Biggs [1932] HCA 54

List of Texts/Papers: Sappideen and Vines, Fleming’s The Law of Torts, 10^th ed

Tribunal:                  Mr A. Anforth, Senior Member

Date of Orders:  14 September 2011
Date of Reasons for Decision:         14 September 2011

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          

XD 165 of 2011

BETWEEN:

MICHAELA BARLOW

Applicant

AND:

ROWAN BERGIN

Respondent

TRIBUNAL:            Mr A. Anforth, Senior Member

DATE:  14 September 2011

ORDER

1. The Application is dismissed.

………………………………..

Mr A. Anforth

Senior Member

REASONS FOR DECISION

Background:

1. The Applicant was a tenant of the Respondent in relation to a residential property in Barton. It appears that the residential tenancy had continued for some time as a series of 12 months tenancies. The last tenancy commenced on 25 February 2009 to end on 24 February 2010.

1. The last of the tenancies ended in acrimonious circumstances. The acrimony arose over the Applicant’s refusal to permit the Respondent’s tradesmen access to the property for the purpose of quoting on proposed renovations. The Respondent purported to terminate the tenancy prior to the end of the fixed term by serving Notice of Termination. The Applicant responded with rent strike.

1. The matter came before the Tribunal (RT 10/165) which resulted in an order for the termination of the tenancy on 24 February 2010, payment of rent arrears by the Applicant and an order for the distribution of the bond. In the course of these proceedings the Tribunal made a finding of fact that the Notice of Termination was invalid in that it was not effective to terminate a fixed term tenancy within the fixed term.

1. No order for costs were sought or made in RT 10/165 and the present Applicant did not lodge a cross claim for any breach of quiet enjoyment or other cause of action arising from the purported termination.

2. The Respondent then commenced a second proceeding in the Tribunal
   (RT 190/185) for the outstanding rent arrears, cleaning and other claims. Orders were made on 29 March 2010 in favour of the Respondent. The Applicant was ordered to pay the debt by instalments. No order for costs was made and the Applicant made no counter claims of any kind.

1. The Applicant now brings the present proceedings seeking damages for alleged ‘malicious prosecution’ by the Respondent arising from the earlier proceedings in the Tribunal. More specifically, the Applicant relies upon that part of the Respondent’s earlier claims that sought termination of the tenancy based on the Notice of Termination.

1. The Applicant is a legal practitioner and works for her own conflict resolution consultancy firm. She holds a restricted practicing certificate and is not entitled to practice in the ACT other than in the context of her company. The damages she seeks for malicious prosecution are calculated by reference to a bill of costs drawn on the basis that she was a self represented legal practitioner.

2. The Tribunal took up with the Applicant whether the tort of malicious prosecution has any application in the context of a civil tenancy action brought by a lessor against a tenant. Furthermore, the Tribunal took up with the Applicant how a prosecution (i.e. the institution of a civil tenancy action by a lessor) could be characterised as malicious if it had been largely successful. After hearing submissions, the Tribunal concluded that no such cause of action existed. The Tribunal further concluded, to the extent that it was relevant, that there had been no abuse of process in the Respondent’s institution of the tenancy actions.

Previous Proceedings between the Parties

1. In proceedings RT 09/856, filed on 13 November 2009, the present Respondent sought orders

“To approve the Lessor inspecting the property in accordance with the Tenancy agreement and for visits to the property by building tradesmen before the end of 2009, to make measurements for renovation planning.

1. In her defence to these proceedings the present Applicant stated:

“I contest the application on the grounds that the Lessor Ms Bergin and her agent Mr Rayment:

a. Have acted unlawfully in attempting to evict me six months prior to the end of my fixed term tenancy which expires on 25 February 2010

b. Have acted in a bullying and harassing way and unreasonably refused two compromise offers leading to a loss of opportunity

c. Have no contractual right for the purpose of permitting visits by renovators;

d. Have no contractual right for the purpose of the lessor, as against her agent, conducting a six monthly inspection;

e. Under all the circumstances, are acting unreasonably in not agreeing to my request to forgo that one inspection by way of token compensation for persistent acts of nuisance within the final six months of my fixed term tenancy on 25 February 2010.

1. It appears that, notwithstanding the reference to “persistent acts of nuisance” in paragraph (e) above, no cross-claim was filed in the proceedings.

1. The proceedings were heard on 15 December 2009. The Tribunal made orders:

   (a)terminating the tenancy on 25 February 2010,

   (b)for the inspections of the premises

   (c)the Respondent to give the Applicant 7 days notice of her intentions in relation to the property, so that if the property was to be re-tenanted following vacant possession by the Applicant then the Applicant was to comply with her obligations under clause 64 of the Residential Tenancy Agreement

1. The Applicant vacated the premises and the Respondent subsequently commenced proceedings RT 10/185 against the Applicant for unpaid rent, cleaning and other costs arising from the tenancy agreement.

1. RT 10/185 was finalized at a hearing on 29 March 2010 with orders made in the Respondent favour for a sum to be paid by installments by the Applicant.

1. Neither of the above decisions has been appealed.

The present proceedings (RT 11/165):

1. On 11 January 2011, the Applicant sent an account by way of demand entitled “Itemized Account for reimbursement of costs incurred in defending unlawful action to evict by Mr R Bergin”. This account sought a total of $8320.00 and set out the account, similar to a legal bill, showing dates, activities and unit costs. In the application, it is said that the account was calculated at the rate of $380.00 per hour.

1. The account shows a footer that says “Defence Legal Costs”

1. These proceedings were commenced on 14 February 2011. The application set out the grounds as follows:

The Grounds of the application were:

The respondent engaged in a malicious prosecution of the Applicant, in relation to evicting her for the purpose of renovating. She initiated proceedings against the applicant to evict the applicant 6 months ahead of the end of a fixed term tenancy for the purpose of conducting renovations in her mistaken view that there was a periodic tenancy between them.

The applicant resisted the actions of the respondent, but the respondent persevered. After a four month process, and after the respondent brought the action before the residential tenancies tribunal, the prosecution was terminated when the Tribunal decided in favour of the application – that there existed, in fact, a fixed term tenancy, and that the did not have contractual rights for her purposes under the ACT. The respondent had persevered with the actions, issuing a notice to terminate amongst numerous other actions, eventually bringing the matter before the Residential tenancies Tribunal, which found in the applicant’s favour.

There was no reasonable cause for the prosecution by the respondent because it was contrary to the provisions of the Residential Tenancies Act

There was malice on the respondent’s part in that she had an improper purpose in bringing her actions – to support her intentions to renovate in spite of being advised by the applicant and also the ACT Law Society that her actions were inconsistent with the Residential Tenancies Act as there existed a fixed term tenancy until 25 February 2010.

The applicant, a legal practitioner, suffered actual damage – damage to pecuniary interest, taking time, effort and legal expertise to defend the actions – time, effort and legal expertise that was not able to be used in other productive ways to advance her own employment or business.

1. A conference was held on 6 April 2011. No agreement was reached and the matter listed for hearing on 6 May 2011.

1. On 6 May 2011, the Applicant filed a submission that said:

1 .The applicant has brought this action for damages in the view that no‑one who is law abiding, and who has done nothing wrong, who is brought into litigation which is wrongly based, and which does not succeed, should be then further disadvantaged by not being able to be reimbursed for the costs in either time or effort or professional skill that it has taken to successfully defend that action.

2. In this matter, the applicant claims use of her own professional skill, based on a solicitor's fee of $350 per hour for approximately twenty hours' billed work. The billing of twenty hours is conservative, given that a great deal more than twenty hours was spent during the four month period that the prosecution lasted ‑ between August 2009 and December 2009.

3. It is fundamental to the applicant's argument that she suffered actual damage in that she spent time and effort in defending the action ‑ time that would have been better used in advancing her own business and her own personal interests.

4. The applicant is of the view that costs within the meaning of court rules, are designed to reimburse the work done or expenses incurred by a practitioner or a practitioner's employee. The applicant is a practitioner, holding an in‑house legal practising certificate for her family dispute resolution business, Athena Communications Pty Ltd since July. If the applicant had not acted for herself, she would have needed to employ a solicitor to act for her.

5. In defending the action the applicant has exercised the professional legal skills that she would apply if she were acting for another person. Under her financial circumstances, she would not have been able to afford a lawyer to act for her and in that case she would have not been able to exercise her right to defend the actions of the respondent.

6. While there were two hearings in the Tribunal that does not award costs, a person may apply to the Tribunal for damages. This action is to claim damages, not costs.

7. Two Tribunal proceedings were held.

8. On 17 December 2009 (RT 856 of 2009), the Tribunal ordered that the tenancy was a fixed term tenancy ending on 25 February 2010; that the applicant was to grant access for the purpose of the lessor conducting a routine inspection on Wednesday 23 December 2010 and that the lessor was to give the applicant seven day's written notice of her intention to either renovate or rent the premises at termination of the tenancy, and in this event the tenant was to comply with clause 64 of the tenancy agreement‑ to leave the premises in substantially the same state of cleanliness, removing all the tenant's belongings and any other goods brought onto the premises during the duration of the tenancy agreement; and in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted.

9. On 29 March 2010 (RT 185 of 2010), the Tribunal ordered that the Office of Rental Bond release the bond of $1440 to the lessor; that the sum of $2800 in full and final satisfaction for rent owing less $1440 already deducted from the release of the bond, making a total of $1360 owing; that this sum be paid at the rate of $50 per fortnight to the ACAT with first payment made on 7 April and if any payment is missed the total remaining debt is payable and enforceable immediately. This debt has been paid in full.

HISTORY OF SEVEN YEAR TENANCY FROM JANUARY 2003 TO FEBRUARY 2010

10. The applicant started her tenancy at 29 Darling Street in January 2003, signing up for a one year lease.

11. She sought this accommodation for herself and her adult son who was to return to Canberra because he was injured and needed care to recuperate

12. When the applicant's original tenancy agreement ended in 2004, she asked for, and the lessor agreed to, a three year tenancy ‑ from 2004 to 2007.

13. In January 2007 the applicant asked for a further three year tenancy, but this was not agreed to by the respondent on the grounds that the respondent was not sure of her plans for the next three year period. The applicant and the respondent agreed to a one year fixed term tenancy to 2008.

14. This was followed by a fixed term tenancy from 2008 to 2009 and then from 2009 to February 2010. (Over the years there was 'slippage' from a January to a February commencement date for the fixed term tenancies).

15. During this six year period the applicant made two requests of the respondent. The first to install a screen door to the front entrance. The second to install a deadlock in the door between the garage and the house after a burglary. The respondent agreed to both of these requests.

16. During this six year period the applicant paid rent on time except for two occasions when there was an error with internet banking. Over a period of seven years the applicant paid approximately $160,000 dollars in rent.

17. In 2006, the applicant and her son and were seriously inconvenienced on account of major repairs to be done to the main bathroom and kitchen due to significant water damage within the walls. The wall between the second bedroom and the bathroom caved in due to the water damage. There was very strong smell and it became evident that the smell was due to a severe infestation of mould inside the bathroom walls above the kitchen.

18.Given the inconvenience, and under the terms of the Residential Tenancies Act, the applicant asked for a reduction in rent. The respondent agreed to a reduction of one week's rent in spite of several weeks' inconvenience ‑ much less than the applicant had asked for.

19. At one stage, the respondent arranged for renovations to remove the carpet lining on the two balconies, which were then repainted. The applicant cooperated fully with these repairs. No other repairs or renovations were done to the premises over the seven year period. It was not uncommon for the applicant to permit the agent Mr Rayment, to enter the premises while she was not present.

20. For six and a half years, the applicant and the respondent's agent had a good relationship. Routine inspections were routinely made by the agent with subsequent fixing of minor matters by him or by the applicant, as required. There was never any dispute or bad feeling between them.

21. Between 2003 and 2006 the applicant, worked in three casual jobs ‑ as a casual teacher, as a media monitor, and a retail assistant on the weekend. Eventually she obtained ongoing work in the Public Service on an APS6 salary. With that salary, the applicant paid rent and subsidised her son's living as he did not work regularly due to his illness. She also paid for a course of study as a Personal Trainer for him which, over time, he applied to heal himself

THE LESSOR'S PROSECUTION ‑ ATTEMPT TO UNLAWFULLY END THE FIXED

TERM TENANCY SIX MONTHS SOONER THAN ITS EXPIRATION

22. In July 2009 the applicant called the agent to ask if he could have someone look at the oven because she could not turn it on. He replied that he and Ms Bergin were about to leave for three weeks in Brisbane and asked if the matter could wait until their return. The applicant replied that "It would not bring down the government to do so" and agreed.

23. In August 2009, just as the applicant was wondering whether Mr Rayment and Ms Bergin were back from Brisbane and whether something could be done about the stove, she was utterly surprised to receive a letter in the mail from the respondent who stated that she wanted to renovate and asked for the applicant to vacate the premises by November 2009.

24. However, the tenancy agreement was due to run until 25 February 2010 and this letter was six months ahead of the end of that tenancy.

25. Whilst it was the applicant's understanding that under the fixed term tenancy the respondent was not entitled to make this request, the applicant, in the spirit of wanting to be cooperative, suggested a compromise solution saying that she could vacate by November provided that she could forgo some rental payments ahead of a November vacating date, and ahead of the reimbursement of the bond money, as she would need the funds to find and pay for another rental accommodation which would involve four weeks rent for bond and two weeks' rent in advance. The respondent refused this offer of compromise.

LESSOR'S ACTION CONTRARY TO THE RESIDENTIAL TENANCIES AGREEMENT

26. Between August 2009 and December 2009 there was constant weekly, sometimes daily, correspondence or telephone calls between the applicant and the respondent in the respondent's attempt to both secure a vacating date sooner than the end of the fixed term tenancy and to have renovators come to the premises.

27. One of the actions by the respondent was to send the applicant a Notice to Vacate by registered post on 20 August 2009.

28. As the applicant's itemised account shows, there were ongoing dealings of one kind or another. The attached itemised list indicates the ongoing dealings and their nature.

29. The respondent kept on asking for appointment times so that renovators could come to the premises. However, as much as the applicant would liked to have cooperated, as I had done for a period of six and a half years, the open ended character of the requests alarmed the applicant because the requests did not specify particular times or dates. The applicant said that I could not agree to requests that depended upon the renovators' timetable.

30. There was a reason for the applicant not being able to agree to such open ended requests. It was on account of her son's situation ‑ not only was he recovering from a serious illness, but he worked irregular casual days, and also worked night shift on irregular days. For this reason the applicant could never be sure in advance of the days or dates when her son would be working or sleeping.

31. Given that the respondent did not have contractual rights for the purpose of permitting renovators under the act, it was the applicant's view that she was under no obligation to agree to the respondent's terms to her own and her son's detriment.

32. The applicant wrongly and persistently denied that she and the applicant had a fixed term tenancy, and between August 2009 and December 2009 there was ongoing correspondence, informal litigation and increasing acrimony between them.

33. During this time the applicant offered a number of compromise solutions that were all denied by the respondent. The applicant concluded that the respondent would only be happy if the applicant carried all the financial risks. This situation made it very difficult for the applicant.

34. There was an apartment available in the block which was attractive to the applicant, and which would have been suitable. The applicant made enquiries about signing up and had reached agreement on all but the starting date. The applicant I sought agreement from the lessor on an early departure date, but the response was delayed and was unreasonable. During the subsequently delay in obtaining her agreement, the apartment had been let to another person as there would have been approximately one month's delay.

35. Subsequently, the respondent requested a 'routine inspection' to take place in December. The applicant asked if this routine inspection could be waived under the circumstances, as there would soon be another at the end of the tenancy in February, and going by past inspections over a six and a half year period, there was unlikely to be any problem with the apartment.

36. The respondent did not agree to waive the routine inspection. The applicant took the view that this refusal was unreasonable under the circumstances, and that the respondent's true intention was to use the routine inspection as an opportunity to permit renovators to the premises.

37. The lessor took the matter to the Tribunal. The Tribunal ordered that there was a fixed term tenancy to 25 February 2010 and that there was to be a routine inspection in December 2009. The Tribunal did not give an order for renovators to attend the premises because it agreed with my submission that there was no contractual right for that purpose under the tenancy agreement

THE APPLICANT OFFERED COMPROMISE SOLUTIONS THAT WERE ALL REFUSED – THE RESPONDENT EXPECTED, UNREASONABLY, THAT THE APPLICANT WOULD TAKE ALL THE FINANCIAL RISKS.

38. Ahead of the Tribunal hearing, when the lessor kept making demands of one kind or another the applicant replied that she was 'depleted in my resources'. What she meant was that she was depleted in her physical, psychological and financial resources on account of her constant and ongoing battle to defend against the respondent's actions.

39. The applicant offered a compromise solution that she would stop paying rent in order to recoup the bond money so that she could meet the expenses for a new accommodation. The respondent refused, but the applicant had no choice in the matter under the circumstances.

40. The applicant sent an account to the respondent for the time and effort taken to defend the respondent's but this account was ignored.

41. The applicant finally took the view that she could not count on the respondent's acting benignly towards her, and that in order to pay the bond on a new apartment, there was only one thing to do and that was to stop paying rent for the premises. The applicant was not proud to do this, but she felt that she had no choice under the circumstances. Had she not done this, she would not have had the financial resources to pay for new accommodation.

TRIBUNAL DETERMINED THE EXISTENCE OF A FIXED TERM TENANCY AND DID NOT GRANT THE ORDER TO PERMIT RENOVATORS

42. At the Tribunal hearing in December 2009, the Tribunal made an order that there was a fixed term tenancy to 25 February 2010.

43. The Tribunal did not make an order for renovators, on the grounds that, as the applicant had submitted, there was contractual right for that purpose under the agreement.

44. The Tribunal made an order that a routine inspection could and should go ahead.

45. As it happened the applicant had been correct in her interpretation of the respondent's motivation for the routine inspection. When it was time for the respondent to conduct the routine inspection, the respondent and her agent arrived on the premises with measuring tapes and notebooks and took time taking the measurements in the apartment. When the applicant objected to this, saying that this was not the spirit of the routine inspection, the respondent simply laughed saying 'this is for repairs' and continued taking measurements of windows and bathroom.

THE APPLICANT SUFFERED ACTUAL DAMAGE

46. As a consequence of the applicant having to give her ongoing time and attention to these dealings with the respondent, she suffered actual damage. She suffered damage to her pecuniary interest because it took time, effort, legal expertise and legal research to defend the actions. This was time that she was not able to use in other productive ways to advance her own business or personal interests.

CACHIA V HANES [1994] HCA

47. Relying upon this case, the applicant is of the view that a litigant in person who is not a lawyer is not entitled to claim for compensation for the loss of time spent in the preparation and conduct of [a] case.

48. On her interpretation of this case, she believes that there exists an exception known as the "Chorley Exception' which supports the proposition that a legal practitioner is entitled to claim for compensation for the loss of time spent in the preparation and conduct of [a] case, on the grounds that the court is able to quantify a legal practitioner's costs.

49. The applicant is a legal practitioner, having been admitted to the Supreme Court of the Australian Capital Territory on 23 June 2000. She holds a practising certificate as in‑house legal counsel for her conflict resolution company Athena Communications Pty Ltd.

50. At the time of these events she held such a practising certificate from the ACT Law Society. She continues to hold this certificate.

CONCLUSION:

51. The applicant submits that the respondent has conducted a malicious prosecution, which the applicant, a legal practitioner, has successfully defended. The applicant relied upon her knowledge and skill and legal expertise to defend the prosecution. The court is able to quantify a legal practitioner's time. The applicant has provided an itemised account of the time spent. The itemised account is a conservative one as the applicant spent a great more time than is itemised to successfully defend the respondent's unlawful prosecution. The court should award the damages claimed.

1. On 6 May 2011 the Tribunal adjourned the matter to 1 July 2011 part-heard with the following procedural orders:

1.   The Lessor (respondent) to file and serve a copy of her letter dated

August 2009 that advises the lessor’s intention to renovate and allegedly asked the tenant to vacate.

2.  The tenant (applicant) is to file and serve by 20 May 2011:

(a)A statement setting out the kind of inconvenience or other loss arising from the lessor’s breach;

(b)All documents in support of her case;

(c)Any submission on the manner in which compensation is to be assessed.

2.   The lessor (respondent) is to file and serve her response and

evidence by 3 June 2011.

1. On 25 May 2011, the Respondent filed a Response that said:

RESPONSE

1. The following is submitted in response to the applicant's statement of 6 May 2011 and to provide appropriate counter comment.

2. The first five paragraphs of the statement indicate the applicant is seeking costs although she claims damages. The claim seems to be because she is a legal practitioner. The respondent is not. If the respondent was also a legal practitioner presumably she could have submitted a counter claim of similar cost. The many items of perusal of, and preparation of emails and research were all matched by similar efforts by the respondent. Simply put, the exchange of paperwork, emails and phone calls were appropriate correspondence between a lessor and a lessee and should be seen as such. That one party is claiming an enormous sum of money just because she is of the legal profession is not seen as relevant and certainly not just and fair. Moreover the applicant claims she has "done nothing wrong", whereas for some eight weeks she failed to pay rent due and later failed to obey a Tribunal Order.

3. The applicant's principal point is that her tenancy was Fixed. The respondent, as lessor, believed the tenancy was periodic. This was based on : The renting book (2007) page 31 : "Periodic leases automatically start at the end of a Fixed term". The only signed lease was from 7 January 2003 for 12 months. This interpretation was agreed by contact with the Residential Tribunal, Ray White Real Estate and was described as ambivalent by a member at the ACT Law Society.

4. The applicant's paragraph 8 incorrectly states that the first Residential Tribunal hearing ordered that the tenancy was fixed. This is not so.

5. At the second Tribunal hearing on 29 March 2010 an Order was given that the Respondent was to be paid $2800.00, less the bond of $1440.00 with $1360.00 owing. It is naive of the applicant to claim the debt has now been paid because she paid only $800.00, concluding on 18 November 2010 with $560.00 outstanding before being reminded at the ACAT hearing on 6 April this year. The outstanding amount apparently was paid to the Tribunal only on 4 May 2011, up to six months late.

6. This point is raised because of the applicant's insistence that the respondent erred in law and to show that the applicant chose to ignore a Tribunal Order when it suited her.

7. Paragraphs 17 and 18 of the applicant's statement refer to inconvenience due to water damage. She fails to mention that the reason for the damage was that a resident had removed a shower curtain from the bath because it was soiled but instead of cleaning it, disposed of it. As a result water was able over some period to splash uncontrolled on to the floor and into the adjacent bedroom and down into the kitchen ceiling. When asked by the agent on six‑monthly inspections why the bathroom was usually in need of cleaning the applicant said she did not go in there as it was her son's bathroom. It was pointed out that the applicant by law was responsible for the overall condition of the premises.

8. Paragraph 19 of the statement does not mention a number of other maintenance matters attended to during her tenancy. These include:

install new dishwasher

drain clearance (of matter caused by tenants)

garage door repair after break‑in

hot water service repair ‑ twice

install new glass shower screen

install new ensuite bathroom shower screen

dishwasher repair

room heater repair

install new tap

bathroom tile repair.

This list is only to indicate that whenever any repair or replacement was needed it was provided. The applicant was not always present on these occasions and sometimes her son was present.

9. Paragraph 22 is headed "Prosecution". There was no "prosecution". The paragraph then refers to inconvenience with stove serviceability. This was because the oven control panel had been covered with masking tape (presumably to cover the flashing clock numbers) and someone had depressed the auto button. This was fixed quickly by the agent.

10. The respondent has separately sent a copy of her letter dated 4 August 2009 which does not ask the applicant to vacate by November 2009. The respondent was still convinced the tenancy was periodic. There followed letters, emails and at least one phone call which revealed the applicant was keen to seek earlier vacation than February 2010. This reinforced to respondent's view that the applicant, while regarding the tenancy as fixed, believed she could leave earlier if it suited her. The 4 August letter in fact advises the tenant that in February 2010, some six months later that no tenancy extension would be forthcoming. This was no "request" but a helpful 'heads up' and quite a proper action. How it could be construed as an "unlawful attempt" to end the tenancy is a mystery.

11. To resolve the misunderstanding, on 14 August the respondent offered to meet with the applicant. This offer was declined.

12. The applicant's statement in paragraph 25 that she suggested vacating in November and assuming automatic return of the bond to count against rent owing also reinforced the respondent's view that the applicant was ambivalent about departure date.

13. There was also the matter of renovator visits. The requests for these was always seen as reasonable by the respondent. Noting that the tenant had not objected to visits by tradesmen or the agent in the course of the tenancy to effect maintenance or repairs. The visits' purpose was to arrange quotes and some measurements so that planning of the renovations could proceed in advance of the vacating date. The requests were constantly refused. The applicant's son's situation was noted. The respondent notes that the applicant is making much of this now, whereas she was aware that the respondent and her agent had always been flexible and considerate on such matters

14. Paragraph 37 implies that the Tribunal did not give an Order to permit renovator visits because the applicant's submission about contractual rights. In fact the Member stated that while there was no contractual right the applicant could agree to visits if she wished to be cooperative. Her refusal does not seem in concert with the amenable attitude she professes in her statement. Moreover the Tribunal did not order that there was a fixed term lease but only confirmed the property was to be vacated on 25 February 2010.

15. The applicant implies in paragraphs 32 and 33 that only she offered compromise solutions. Indeed the respondent did the same. The parties were unable to agree.

16. In paragraph 34 the applicant refers to another townhouse in the complex to which she wished to move in October. There was no delay in the respondent's reply, indeed the answer was given on the Monday, the day the applicant needed a decision. Again the respondent requested that a visit for renovation quotes be considered but this was denied and it became clear that the applicant was seeking a property to be kept for her for four weeks in advance and it was no surprise that it was rented to another

17. The heading above paragraph 38 is extraordinary. Both parties offered compromise solutions and to suggest that the respondent "expected unreasonably that the applicant would take all the financial risk" is both nonsense and offensive. In effect by refusing limited renovator visits the applicant delayed the renovation by several weeks with significant cost to the respondent. It is not believable the applicant was unaware that this was so.

18. In paragraphs 39 and 41 the applicant admits deliberately not paying rent. In fact as the tenant the applicant ceased to pay rent due on 23 December 2009 although claiming she had paid to 6 January 20 10. She was reminded on a number of occasions to pay but ignored requests to do so. This action was compounded by the refusal to pay overdue rent as ordered by the Tribunal referred to in my paragraph 5 above

19. Paragraphs 42 and 43 repeat assertions about fixed term and renovator visits neither of which were ordered by the Tribunal.

CONCLUSION

20. There was no "malicious prosecution". Indeed, the respondent would like the applicant to explain what was the prosecution and how was it malicious. Between August and November 2009 the respondent and applicant, as lessor and lessee, conducted detailed correspondence by letter, email and telephone to conclude the tenancy and attempt to arrange later renovation. There was disagreement on two main areas, namely whether the tenancy was fixed or periodic and to agree to a tradesman's visits to plan the renovation and prepare quotes.

21. The applicant made more than one attempt to end the tenancy early which the respondent assumed the tenant regarded the tenancy as fixed when it was convenient. The respondent was aware that the applicant was paying some $100.00 per week less than market rent by comparison with All Homes published figures. At neither Residential Tribunal hearings on 17 December 2009 and 29 March 2010 was the type of tenancy formally ordered. If it is the ACAT decision that the tenancy was fixed, it remains the respondent's position that her actions were in sincere good faith in the belief the tenancy was periodic and the applicant's actions tended to support this.

22. The respondent also suffered financial stress as a result of the disagreement. Financial costs were both caused by the delay to plan the renovation and also because of the absence of rent due by deliberate action by the applicant. When the applicant vacated the property on 9 February 2010, she owed eight weeks rent which she had refused to pay until her so‑called "account" had been paid. As a result of not being able to pre plan the renovation, the property remained untenanted until 6 June 20 10 which caused a significant financial cost to the respondent, as mortgage payments, rates, insurance and other costs had to be paid. The property is the respondent's only real estate asset and being on a pension, this caused extra stress.

23. The respondent and her agent/partner were also caused psychological stress particularly as the date of the applicant vacating the property loomed. The applicant changed the intended date more than once and because no rent was being received significant stress was experienced by the respondent who was in hospital at the time following a colon cancer operation.

24. As stated in my paragraph 10 above, the applicant was properly, not unlawfully, advised in August 2009 that there would be no extension in February 2010 as the dwelling was to be renovated. The applicant's claim for over $8000.00 for imagined hurt, together with her refusal to pay rent and ignoring a Tribunal Order all constituted a level of harassment to the respondent which has caused needless time and effort, including those of the Residential Tribunal and ACAT.

1. On 30 May 2011, the Applicant filed a number of other submissions, as set out below:

On 6 August 2009, the applicant wrote to the agent by email saying "I have Rowan's letter which I received yesterday and am in the process of replying. In the meantime, I wonder if you have made arrangements for the oven to be repaired/replaced as we discussed before you went away". (Email attached at Appendix)

On 12 August 2009, the applicant received an email from the respondent saying "I hope our conversation last night clarified things for you. I understand that when you find somewhere new, you will give me 3 weeks notice, and 1 will need to start renovations after the 12 weeks notice (i.e. mid October). In anticipation that you have had a chance to speak to Marcus, I have organised a tradesman to visit at 4.00pm on Thursday 20 August which gives you 9 days notice". (Email attached at Appendix)

On 12 August 2009, the applicant wrote to the respondent saying "I am rather unclear about your message as it is not consistent with my understanding of our last night's conversation. My understanding was that you had not agreed to releasing me from the lease ahead of 25 February and that in light of that, I would speak to Marcus about agreeing on tradesman visiting times ... (Email attached at Appendix)

On 14 August, 2009, the respondent wrote to the applicant saying "we seem to have some misunderstandings. Accordingly Mike and I will call on you at 29 Darling Street at about 11am tomorrow Saturday 15th August. You may consider re‑reading the renting book which could be useful in our discussion. (Email attached at Appendix)

On 14 August 2009, the respondent wrote to the applicant saying "I am sorry you are unavailable to meet with us. For our mutual understanding, may I suggest that you refer to the ACT Government publication "the renting book" which states that the lessor is required to give 12 weeks notice to end the tenancy and the tenant may terminate a periodic tenancy by giving 3 weeks notice. I would like to summarise the points so that we both have clear understandings of where we stand. I would now like to renovate the property before the end of the year, and according to the tenancy agreement this means that your lease would be terminated at the beginning of November. If you find a property to lease between now and then, all you have to do is give 3 weeks notice. The cost of carpet and internal cleaning would not be an issue if I know that I can commence renovations in early November. This depends on my having my renovation person access to the property fairly soon so that planning can commence. If you feel unable to give me this access (after 4.00pm with a weeks notice), then I would require that the property and carpets be cleaned before you leave as I may have to rent the property on a short term lease. Mike and I would like to have our 6 monthly inspection and as Saturdays seem to be a convenient day for you, may I suggest Saturday 22 August at a time to be nominated by you. I hope that this clarifies your position a little better. (Email attached at Appendix)

On 16 August 2009, the respondent wrote to the applicant saying: We have read your email of 15 August. It does suggest that we should have a personal discussion to remove if possible what I see as some confusion. First of all I would like to suggest you re‑read the Renting Book page 35 (half way down) Our Fixed Term Tenancy Agreement ended on 7 January 2004 when it became a Periodic Tenancy. This is confirmed by paragraph 9 of the Agreement we signed in January 2001. In my letter to you of 4 August I stated I may start renovations in February. During our telephone conversation on Thursday evening, the 11th, you told me that you would seek alternative accommodation shortly but did not wish to have to pay 3 weeks rent on two properties concurrently. I gathered from this that you were considering moving before February if suitable premises were found. That I could commence renovations much earlier was a positive possibility which is why I introduced the 3 weeks notice for you to exercise when convenient to you. This course is open to you by paragraph 88 of the Prescribed Terms and the second last paragraph on page 35 of the Renting Book. I believe the situation where we disagree began by the mutual misunderstanding of my paragraph above. My email of 12 August (at 4.32 pm) indicates my position then. Because you seemed reluctant to accept the two alternatives and also declined to agree to a visit by a tradesman I decided to formalise matters by giving you 12 weeks notice to vacate in accordance with paragraph 96(d) of the Agreement, that is because of my bona fide intention to renovate. It was not a notice without cause, The options you outline in your email of 15 August are therefore not agreed principally because it is not a Fixed Term Agreement. The situation as I see it is you were given 12 weeks notice to vacate on 14 August which expires on 6 November 2009. If you wish to vacate earlier, then 3 weeks notice is required. Turning to other matters in your email of yesterday: It would not have been necessary to replace the carpets during your tenancy had they been cleaned . The inconvenience to you during the repairs to the bathroom and kitchen in 2006 was adequately covered in my letter of 28 April of that year. I do not agree that I have acted unlawfully with respect to terminating the tenancy. It certainly has nothing to do with repairs to the oven. Your request came just before our planned departure for Queensland as Mike explained at the time. You indicated a delay in repair was acceptable. Thank you for your kind words on Mike's helpfulness. In summary I am terminating the tenancy because of the intention to renovate. This is quite in accordance with our Tenancy Agreement and the date is 6 November unless you choose to leave earlier. I await your advice of the preferred time for the inspection on Saturday 22 August. It is still my wish for a tradesman to visit at 4 pm on Thursday 20 August. We are both concerned that negotiations have caused you anxiety. Be assured this was never the intention ‑ indeed I have been distressed also. Mike and I hope that we can arrive at an amicable agreement.

On 15 August 2009, the applicant wrote to the respondent: I have consulted The Renting Book on your advice. I understand that we may end our Fixed Term Agreement which expires on 25 February 20 10 by (including but not limited to) the following:

1.       I may give you three weeks' written notice at the end of the 12 month tenancy so that our tenancy resulting in a vacating date of mid March 20 10.

2.        You and I may agree in writing to end our Fixed Term Agreement (FTA) on a date of our choice, whether or not we wait for the expiry date of 25 February 2010.

3.        You may terminate our FTA via the Tribunal on certain conditions.

4.       You may terminate by notice on certain conditions.

5.       You may terminate our FTA by issuing a notice without cause. It seems to me that you are relying upon option #5. You want me to vacate the premises by November 2009. You want me to give you three weeks notice if I should find suitable accommodation between now and then.

My offer of compromise to permit option #2 you have rejected. None of the conditions for #3 or #4 obtain. You are therefore relying upon option #5 whereby you may issue a notice without cause where there exists an FTA. "The lessor can give a notice to vacate the property without any reasons. The lessor must give 26 weeks notice to the tenant to vacate the property. If it is a fixed term tenancy, then the 26 weeks must not expire during the fixed term period. The tenant may vacate the property within the last two weeks of the notice expiring, provided the tenant gives the lessor 4 days notice of an intention to vacate" (page 39). It seems to me therefore, that your intentions, as outlined in your message below, are not consistent with this clause of The Renting Book.

Since the beginning of our tenancy in February 2003, I have paid rent to you in the sum of approximately $150,000 without being a demanding tenant such as asking for carpets to be replaced or painting to be done over a six and a half year period. We suffered detriment during the weeks when repairs were carried out as a result of the serious mold and dampness problem in the second bedroom and bathroom.

One of the reasons that I have sought renewal of my tenancy agreement is my appreciation for the fact that Mike Rayment has been a very good and reasonable property manager and very kind personally. If ever I have given him permission to enter the premises without my being present, or whilst Marcus was sleeping before his night shift, it has been because of the trust and confidence that Mr Rayment's behaviour towards me has inspired over time.

However, I do not have the same trust or confidence in these recent actions on your part to unexpectedly, and unlawfully, end my tenancy six months before the expiry date in response to my request to have the oven fixed. Whilst in the shock of it all I wrote you a letter offering a compromise position in order to accommodate your request, and which you rejected, I now re‑iterate, that vacating six months prior to the end of my fixed term tenancy is not convenient to me, and that your wish to have the property vacated by November is not possible under the terms and conditions of The Renting Book and our FTA , as I understand it. I am sorry if this is disappointing to you.

On 19 August 2009, the applicant wrote to the respondent: "My understanding is that we have a fixed term tenancy. Unless and until this is agreed there is no point in discussing further". (Email attached at Appendix)

On 20 August 2009, the applicant wrote to the respondent: I write in response to your Notice to Vacate which was delivered by Registered post and which I collected today.... (which) contravenes the Residential Tenancies Act 1997. I trust that you may be persuaded of this fact. A great deal of distress is being caused to me not to mention time and effort in having to deal with this unexpected turn of events. I trust that you will therefore decide to put an end to his action. (Email attached at Appendix)

On 20 August 2009, the respondent wrote to the agent: I am addressing this to you as this is your email address and you have acted as property manager for 29 Darling Street during my almost seven years; tenancy. When Rowan unexpectedly wrote to me using this email address some days ago I thought that I was receiving correspondence from you. It was only when I read to the end of the message and saw Rowan's name, that I realised that the message was, unusually, from her. I am writing to you about rowan's Notice to Vacate which was delivered by registered Post and which I collected today. I note that she seeks termination of a periodic tenancy ... I do not doubt her bona fide intention to renovate and her actions are consistent with her view that we hold a periodic tenancy. However, she is estopped from denying the existence of a fixed term tenancy because, as I have previously explained, the record shows that we have a fixed term tenancy due to expire on 25 February.

On 21 August 2009, the agent wrote to the applicant denying the fixed term tenancy: Thank you for letter and email of 20 August. We have sought clarification from the Residential Tenancies Tribunal who have advised that on the expiration of a Fixed Term Tenancy, it becomes a Periodic Tenancy. If an extension is granted, for example by letter or email, it continues to be Periodic unless both parties sign a new lease agreement. This has not been the case with your tenancy. Rowan believes that we can come to some accommodation for your need for flexibility in time of departure and her need for her renovation to commence immediately afterwards. For this to happen she needs access to the property so that planning for the renovation can commence, as this takes some lead time. I await your reply.

On 22 August 2009, the applicant responded to the agent that their advice may have been incorrect, confirming the fixed term tenancy: The advice that has been provided to you by the Residential Tenancies Tribunal may have been given on the basis of not having all the facts before it. It is not the advice that I have. Clause 5 of the schedule to the Residential Tenancy Act states that "A periodic tenancy includes a tenancy which is not specified to be for a fixed term, including such a tenancy which commences on the expiration of a fixed term tenancy". In our case, we have a tenancy for a fixed term to 25 February 2010 which commenced on the expiration of the previous fixed term. There is no requirement for a further signing of a lease. That is my understanding. (Email attached at Appendix)

On 2 September 2009, the agent for 25 Darling Street wrote to the applicant: I have heard back from the owners today who have indicated they would agree to a 3 year lease with a commencing rent of $520 per week .... could you please confirm that you are happy to proceed on this basis.

On 3 September 2009, the applicant wrote to the agent offering to end the fixed term agreement as there was an opportunity to enter a three‑year lease with a lessor of 25 Darling Street. "I have an opportunity to enter into a three year lease with a lessor of 25 Darling Street Barton. I write to ask you therefore, notwithstanding our fixed term tenancy to 25 February 2010, but in view of Rowan's wish to renovate, whether we may reach an agreement to end our tenancy prematurely on the following terms: Full reimbursement of all bond monies to me in the sum of $1440. No need to undergo the expense of shampooing of carpets, Reference attesting to my period of tenancy. If you agree please let me know so that we may do what needs to be done. If you are not happy to agree to these terms, I would intend to see our fixed term tenancy to its end in February 2010. (Email attached at Appendix)

On 7 September 2009, the respondent asks for a written reply to the offer to vacate in order to take up a three year lease at 25 Darling Street. (Email attached at Appendix)

On 7 September 2009, the respondent wrote to the applicant using the agent's email address: Our response is dependent on two things: immediate access to the property so that we can get a realistic time frame for the renovations to commence. If my renovator can give me a date to commence which will ensure that the period without rent is minimised, then perhaps we can negotiate a mutually agreeable departure date. Both parties are obviously concerned about the financial implications of the matter. (Email attached at Appendix)

On 7 September 2009, the applicant wrote to the agent: Rowan's response does not give me certainty. I cannot sign another tenancy agreement without knowing the end date of my current one. The end date of my current tenancy agreement cannot depend upon the renovator's timetable. Also I cannot pay another bond without a guarantee of my current bond being returned in full. I am trying to accommodate you but I simply do not have the financial resources to take these risks. My intention to wait until 25 February was in part to enable me to prepare financially for the move. If I cannot have certainty of end date of current tenancy, my intention is to see out my tenancy until 25 February so that I may have more time to prepare for the financial commitments that the unexpected end of tenancy will incur. (Email attached at Appendix)

On 7 September 2009, the applicant wrote to the agent for 25 Darling Street: This is an interim message. I am still waiting for a final answer from my current lessor. We are still negotiating for a fixed end date and specific terms. She is aware that I have said that I expect to have a response to you by today. (Email attached at Appendix)

On 8 September 2009, the respondent wrote to the applicant saying: We have been trying since the 12 August to arrange for tradesmen to take measurements in order to prepare a renovation plan. The discussion of type of tenancy obviously dominated email traffic, but our inability to acquire the necessary date means we cannot predict the preferred tenancy termination date. If you agree to us having a visit by tradesmen to give us an idea of how long it would take to implement renovations, we can then be flexible as to allowing you to give reasonable notice when you find a place to rent before the expiration of the tenancy. If this is not suitable, then we understand that your tenancy will continue until February with the required amount of notice.

On 8 September 2009, the applicant wrote to the agent for 25 Darling Street asking for a start date of 10 October 2009: This is a difficult situation for me, as it appears to me that my lessor wants me to take all the risks involved in ending our tenancy earlier than the expiry date, notwithstanding that it has been her request that we do so because she wants to renovate. My tenancy agreement with my current lessor ends on 25 February 2010 and indeed, I was hoping that I would be able to extend my tenancy at that time. Before considering the property at 25 Darling Street, I had responded to her notice to vacate by saying that we have a fixed term agreement to 2 5 February 20 10 and that I expected to see out the term there. However, after inspecting 25 Darling Street, I suggested to my current lessor that I would be prepared to vacate if we could agree to some terms, including a vacating date. She is resisting such an agreement, saying that it depends upon her renovator's schedule! I have responded that this does not give me sufficient certainty. If the lessors of 25 Darling Street were to agree to the 10 October 2009 date for commencement, I can put this date to her as a firm offer. I believe that she might accept this. We have agreed that if we cannot reach an agreement, that I will see out my term to 25 February 2010. I am not really sure what else I can do at this stage. (Email attached at Appendix)

On 8 September 2009, the applicant wrote to the respondent suggesting an end date for the new lease at 25 Darling Street to be 10 October 2009. The applicant also proposed that there be a full reimbursement of the rental bond in the sum of $1440, no requirement to undergo expense of carpet clean, reference. She wrote: "You are aware that as a result of twice yearly inspections that there has never been anything substantial that has needed your attention that was due to my actions, and therefore it is unlikely that there would be any risk to you in respect of seeking reimbursement of the bond monies to cover any damages .... I am not really sure what else I can do, as it is not reasonable to me to have to take all the risks. I trust that you will agree, so that we may get on with our lives without this ghastly shadow. This decision must be made irrespective of the renovator's timetable.

On 8 September 2009, the respondent wrote to the applicant: “Nothing can be done until you understand we need immediate access to the property for my renovator. Please nominate a date now".

On 10 September 2009, the respondent wrote to the applicant: We have been puzzled by your use of the term "renovator's timetable". Your recent emails have sought our early agreement to your proposals, the return of bond, non‑cleaning of carpets and a Reference. We understand your view of the matter is only from your side but we have the impression you have either not understood our responses or have chosen to ignore them. Apart from our disagreement in the definition of the tenancy, we believe we have tried to be as co‑operative as possible. Had you agreed to a renovator visit as originally proposed on 12 August, it is likely that by now he could have completed a proposal, we could have initiated purchase of equipment and work could have commenced on or about 10 October. Simply put, an opportunity for a solution to our mutual problem has been lost. Soon I will seek your proposal for a convenient time and date for an inspection in accordance with Prescribed Term 77. Later in the year I will seek a convenient date for an inspection to measure dimensions in accordance with Prescribed Term 82, as a preparation for renovations or repairs. Should I decide not to proceed with any renovation in the New Year, the property will need to be prepared for another tenancy. Amount of bond will be, as customary, related to the result of Final Inspection. (Email attached at Appendix)

On 11 September 2009, the applicant wrote to the respondent: "I should like to clarify the record from my point of view. We held a fixed term tenancy until 25 February 2010. You expressed your wish to renovate and for early termination of our agreement, six months ahead of our end date. In my wish to accommodate you, in spite of the inconvenience to myself, both financial and material, I offered you a compromise solution: That I would be prepared to accede to your wishes provided you would agree, that as soon as I should find accommodation, you would release me from the tenancy. You refused this compromise offer, saying that it would depend upon the renovator's quote and schedule. You sent me a notice to vacate, contrary to the Residential Tenancies Act. Still wanting to find a solution to suit us both, as this uncertainty was causing me distress, I noted the vacancy of, and I applied for tenancy of, 25 Darling Street. I was successful in my application. However, in order to be in a position to sign an agreement, I had to establish a commencement date for the lease. In order to do this I had to know a termination date for 29 Darling Street. I proposed 10 October to you. Further, in order to permit me to financially manage the transition, it being six months before the termination date at which stage I was budgeted for the costs of transition, I asked for your agreement to further terms ‑ that of full refund of the bond, and that of not needing to go to the expense of cleaning the carpets on the understanding that they would be removed. Only by having these terms would I be able to finance the transition. You refused this proposal. You say that I can only see this from my point of view. However, the record shows that I have, in spite of not needing to given our agreement to your wish for us to vacate sooner than 25 February 2010, made two compromise offers, both of which you have not accepted. The record shows, therefore, that it is you who are seeing only your point of view.

You say that by my not permitting your renovator to give a quote, is the reason for our not having been able to reach an agreement, and that you are puzzled by my comment that we cannot reach an agreement based on the renovator's timetable.

I say that you, by not agreeing to either my first compromise offer, or the second compromise offer which included the termination date of 10 October 2009, it is you who have caused two opportunities for a solution to our problem to be lost ‑ always remembering that all of this started with you wanting to unlawfully end our tenancy agreement six months before the end date. It is still open for you to change your mind and agree to my second proposal, as I would be keen to take up the 25 Darling Street option, bearing in mind that even if you agree to the 10 October termination date, I still need to have the new owner's agreement, and I would need to be clear on whether I am in a financial position to make the transition ‑ hence the terms about the bond and the carpet. I trust that you will see that I have not been uncooperative, but on the contrary, have tried to accommodate you. At the same time, I have not been prepared to bear all the risks. I am very sorry to see that such a long term arrangement between us has deteriorated into this petty squabble." (Email attached at Appendix)

On 11 September 2009 the respondent, using the agent's email address, wrote to the applicant seeking a renovators visit: We have a new "window of opportunity" you may consider. Our renovator is now able to commence the dismantling part of a renovation on Monday 21 September. This gives you hardly any time to re‑organise but if it suits please let me know. (Email attached at Appendix)

On 11 September 2009, the respondent wrote to the applicant: "I agree to your request to terminate our lease agreement from the 10 October as long as you agree to two visits next week by my renovator." (Email attached at Appendix)

On 11 September 2009, the applicant wrote to the respondent: Thank you for your proposal. I have been in touch with the new owners to let them know that you have agreed to a termination date of 10 October 2009. It remains now to see whether they will agree to this date. I don't expect any problems. However, if they disagree, there will be problems with my being able to meet the requisite cost. As for the visits by your renovator, I need to check with Marcus's work timetable ‑ as you know, he works shifts. Can you please give me an idea of how much time the renovator will need. I await the new lessor's agreement to 10 October 2009 being the commencement date. (Email attached at Appendix)

On 11 September 2009, the agent wrote to the applicant: Bad luck about No 25. We understand it was recently renovated and transition would have been easy. Thinking positively, there may be other rentals you can apply for in the near future. Assuming you would want a quick response from us for early termination of the agreement, we would be happy to oblige subject to two things: A builder being able to accept the work as soon as you leave. I can't be positive about this but hope so, Having plans ready. So again I request that our builder visit the property, next week on Monday and Wednesday after 4 pm. Each visit would take about an hour. He can then start to draw up plans. We hope you can agree. (Email attached at Appendix)

On 11 September 2009, the applicant wrote to the agent: I have just read your message to my home email and I did not want to leave work without responding. I am very disappointed to have missed out on 25 Darling Street for reasons of prevarication on Rowan's part. It is Friday afternoon and after a month of uncertainty I am weary, demoralised and unable to give you any certainty about your requests except to say that, at this minute, I do not want to even think about moving until 25 February 2010. I do not want to spend the next six months under the conditions that have prevailed for the last one. I would therefore urge you to please just let me be. I expect that Marcus might be finishing night duties soon, and then it will be easier to arrange a renovator's visit. I cannot give you any other reassurances at this stage. (Email attached at Appendix)

On 22 September 2009, the respondent wrote to the applicant requesting an inspection of the property in the following week. (Email attached at Appendix)

On 26 September 2009, the respondent wrote to the applicant requesting a reply to her wish to have an inspection of the property. (Email attached at Appendix)

On 30 September 2009, the respondent sent a further email requesting a time and date to carry out an inspection.

On 4 October 2009, the respondent wrote to the applicant advising of an inspection on 24 October 2009.

On 2 November 2009, the respondent and her agent wrote to the applicant requesting a visit.

On 2 November 2009, the applicant wrote to the respondent: We have a fixed term tenancy to 25 February. As long as I pay my rent, I am entitled to a 'quiet enjoyment' of the property, something which has not been permitted to me in the course of your recent actions. With all due respect, your renovation plans are of no interest to me. It is open to you to do what ever you wish after 25 February 2010.

On 5 November 2009, the lessor applied to the Tribunal "to approve the lessor inspecting the property in accordance with the Tenancy agreement and for visits to the property by building tradesmen fore the end of 2009 to make measurements for renovation planning". While the Tribunal made the order for the periodic inspection, it DID NOT make the order to permit tradesmen's visit. It also made an order that there was a fixed term tenancy to 25 February 2010.

On 23 December 2009, a house inspection took place. Contrary to past practice when the agent attended alone, on this occasion the agent was accompanied by the respondent, who attended with measuring tapes and a notebook. The applicant understood these actions to be contrary to the order made by the Tribunal. The result of the inspection was "generally satisfactory". (Email attached at Appendix)

On 1 January 2010, in light of the bad faith actions of the lessor, and in the belief that those bad faith actions would mean that she would not be treated benignly or lawfully, the applicant wrote to the respondent:

Further to your recent routine inspection, I propose the following terms as full and final settlement of matters between us:

1. As my rent has always been paid in advance, no rent is due, it having been paid up to 6 January 2010.

2. As the payment of a bond is not a prescribed term, and as it covers four weeks' rent, there is no rent due between 7 January and 3 February 2010.

3. I vacate the premises between 3 and 10 February 2010.

On 11 January 2010, the applicant wrote to the respondent noting a further refusal to compromise and sending an account for the time taken to defend the respondent's actions. "Again you have not accepted a compromise offer on my part, but continue to make demands of me. I therefore seek reimbursement of costs that I have incurred in defending against your illegal actions in attempting to evict me six months before the end of my fixed term tenancy. I attach my account. My compromise offer dated 1 January 2009, was made in light of your actions during the routine inspection that was carried out on 23 December 2009. You and your agent carried out this inspection, having been granted an order by ACAT (the Tribunal). You had not been granted an order to permit renovators. At the time of the hearing I stated that I did not want the routine inspection to be used as a 'de‑facto' opportunity to act for the renovator. While your agent was making a routine inspection, you took measurements of the kitchen window, the lounge room French doors, the upstairs bathroom and the en‑suite to the main bedroom. When I asked 'What is Rowan doing ‑ that is not part of a routine inspection", your agent did not reply, but you, still with your back to me, scoffed at me, saying 'I am  the owner and this is for the purpose of repairs".

On 29 March 2010, the Tribunal made an order that the rental bond was to be released to the lessor. The Tribunal made a judgement for the lessor in the sum of #2800 in full and final satisfaction for rent owed and for cleaning and gardening costs less $1440 already deducted from the release of the bond.

On 14 February 2011 the tenant filed claimed damages for defending the malicious prosecution on the part of the lessor.

STATEMENT SETTING OUT THE KIND OF INCONVENIENCE AND OTHER

LOSS ARISING FROM THE LESSOR'S BREACH

On account of the respondent's actions to evict me from the premises at 29 Darling Street Barton ACT 2600, six months ahead of the end of a fixed term tenancy, after having leased the property for six and a half years, I suffered the following inconvenience and loss.

LOSS OF CONFIDENCE ‑ SHOCK AND ANGER

1.   Loss of confidence and shock at the unexpected response after asking for the oven to be looked at as it was not working.

2.    Loss of confidence and shock as there had been no foreshadowing of the action by the lessor to prematurely end my tenancy ‑ just a note in the mail.

3.    Loss of confidence and shock as, after seven years, I had a reasonable expectation that the lease would be renewed in February 2010, as it had been renewed during the previous seven years.

4.    Loss of confidence, shock and confusion arising out of the ambiguity of the situation as it evolved.

5.    Loss of certainty at the apparent illegality of the action and the manner of its delivery ‑ in particular the Notice to Vacate which I collected on 20 August 2009 by registered post.

6.    Loss of certainty and disbelief at the lessor's serial refusal of compromise offers, all of which were refused on account of her not wanting to share some of the risk expecting me to bear it all.

7.    Loss of confidence and security at the continuing unremitting actions in spite of my advice that we had a fixed term tenancy.

8.    Loss of composure and serenity with anger at being treated with contempt after my having been a good tenant for a period of six and a half years.

DISQUIET/ANXIETY

9.    Anxiety at the way my son might respond to the notice to early vacate, given his own personal circumstances and state of mind.

10. Anxiety about having to meet unexpected expenses of a projected premature move.

11. A constant state of anxiety between August 2009 and February 2010 as to how to deal with the lessor's actions ‑ not knowing what rabbit she would pull out of her hat to have her own way.

12. Ongoing anxiety between August 2009 and February 2010 about my responsibility to defend her actions for the sake of my son's well‑being as much as for my own.

13. Ongoing anxiety at making compromise offers which were always refused.

14. Embarrassment when dealing with the new agent for a potential lease on another property on account of the lessor's delay in giving a response to my proposal, resulting in the property being leased to another party.

15. Disquiet and concern at seeing my son's concern for me in dealing with these matters.

16. Embarrassment at the lessor and her agent making private enquiries about me to the Act Law Society with defamatory innuendo that somehow I was doing something wrong and/or unlawful, when it was they who were acting wrongly and unlawfully.

17. Hurt, anxiety and embarrassment at the subsequent ACT Law Society breach of my privacy by giving them the personal details to which they were not entitled.

18. Embarrassment at the ACT Law Society not acting courteously towards me, a member of their society, by not informing me of their enquiry.

19. Embarrassment at having to bear the defamatory innuendo in the subsequent legal letter from the lessor's legal representative accusing me of acting wrongly after I sent them my account.

20. Distress and anxiety as evidenced by one of many examples of journal entries. One example is the entry of 5 August where I write ... I have a letter from my landlady to say that she intends to renovate and that she wants to make arrangements to bring workmen to get quotes. The letter brings me to tears as the thought of having to leave here...

21. Loss of privacy. On Friday 14 August 1 write in my journal: at work I receive an arrogant message from the lessor saying that she and her husband will come to my house tomorrow to talk to me at 11.30. I immediately respond to say that I shall not be available ... I sleep early and all night I am aware of the pain in my hip.

22. Loss of composure. On 20 August 2009 in which I write: Do not think that your silence does not hurt me ‑ or cause me grief... the strike from the lessor takes the form of a Registered Post notice that I need to wait to collect this morning causing sleeplessness and worry. I try to comfort Marcus who is angry – the rabbit she's pulled out of her hat. Today rent is due and I am loathe to pay it. (The Registered Post contained the Notice to Vacate)

23. Apprehension. On 25 August I wrote: It was with serous apprehension that I opened my letter box expecting a red and while slip from the lessor ... their actions are truly spoiling my quiet enjoyment of the premises for which I pay a good amount in rent ... my landlady's actions are causing me grief. If it weren't for those actions, I would not feel this awful apprehension about what she might do next. It's a kind of tyranny bullying and it reminds me of the actions against me by N's relatives all those years ago after he died ... but I am stronger now and have more knowledge about the law, but that does not mean necessarily that I shall prevail in this legal battle, nor does it mean that I do not suffer personally from the bullying actions.

LOSS OF SECURITY

24. After making a new life for myself and my son in Canberra, while living in my apartment, it came to mean a great deal to me after six and a half years. It represented security and safety. The lessor's actions caused a loss of that security. On 26 August I wrote in my journal: I reflect that giving up this apartment means a lot in symbolic terms. I have felt safe here and now I feel unsafe. It has been a refuge and now I see myself out in the cold.

PHYSICAL SYMPTOMS IN RESPONSE TO THE LESSOR'S ACTIONS

25. Sleeplessness, often being awake in early morning or late at night as evidence by my journals entries.

26.  Severe joint pain in hips which journal entries show correlated with lessor's actions.

27. Constant preoccupation when at work to the extent that I was not able to focus on my tasks to my own professional detriment as evidenced by my personal journals.

DEMANDS MADE ON MY PERSONAL TIME

28. Between August 2009 and December 2009, the lessor's emails, telephone calls, messages by registered post, actions in the Tribunal, all required my time and attention.

29. The time I spent on dealing with these conversations and correspondences, was time that I might have otherwise spent attending to matters in my own personal life.

30. The time that I spent on dealing with these conversations and correspondences, while outlined in my bill of costs to the lessor, is in fact a mere sample of the actual time that was taken in being preoccupied with the action.

31. The time taken to defend the lessor's actions is set out in the accompanying bill of costs. As a legal practitioner, I can give no better indication of the time and trouble that it has taken me to defend the lessor's unlawful actions.

DEMANDS MADE ON MY PROFESSIONAL EXPERTISE

32. Lessor's emails, telephone calls, messages by registered post, actions in the Tribunal, all required my professional legal expertise.

33. The time I spent on dealing with these conversations and correspondences, was time that I might have otherwise spent as In‑House Legal Counsel for my company Athena Communications Pty Ltd.

34. The time that I spent on dealing with these conversations and correspondences, is outlined in my bill of costs to the lessor charged at a legal practitioner rate of $360 per hour, which is not unreasonable.

35. The time specified in my bill of costs is a conservative estimate of the time I took to defend her actions. Whilst it may have taken me six minutes to send an email response, what is not accounted for is the time that it took me to consider what I would say in that response, including any time taken to research the response.

36. The time taken to defend the lessor's actions is set out in the accompanying bill of costs. As a legal practitioner, I can give no better indication of the time and trouble that it has taken me to defend the lessor's malicious prosecution.

SUBMISSION ON THE MANNER IN WHICH COMPENSATION IS TO BE ASSESSED

1.    The lessor's agent in this matter, Mr Rayment, has expressed outrage that I "want to take [his] money". He does not recognise that by these words he is denying that his actions and the lessor's actions, in their malicious prosecution, took away my peace of mind and my time.

2.    The actions were malicious because they were unlawful, bullying and unremitting even in the face of legal advice, not only from me, but also from the ACT Law Society. The actions were not legally based. When they finally brought the matter to the Tribunal in December 2009, the tribunal did not give all the orders that they sought. While it made an order that a routine inspection should take place, it also made an order that there was a fixed term agreement to 25 February 2010 (which they had serially denied) and did not make an order to permit renovators because there was not contractual right for that purpose under the agreement.

3.    I submit that I am entitled to compensation for having successfully defended the lessor's malicious prosecution.

4.    I submit that the pain and suffering that I experienced, while documented to some extent in my personal journals, and while outlined in the accompanying statement of inconvenience and other loss arising from the lessor's breach, is not documented with doctor's certificates because I could not afford to permit myself to be overwhelmed by the events. I had no one to assist me. I did not want to burden my children or my friends with my worries. As a widow for many years, I am accustomed to living an independent life, and simply dealing with whatever burden comes my way.

5.    For this reason I submit that the loss caused to me is simply evidenced by my itemised account ‑ one which evidences the time and trouble and the legal expertise, that it took me to successfully defend the prosecution.

6.    I submit that I am entitled to seek damages for the time, effort and professional legal skill that I was drawn to employ in order to defend against the lessor's actions. As a litigant in person and as a person admitted as a legal practitioner in the Australian Capital Territory, I submit that after Cachia v Hanes [1994] HCA, (Cachia) I am entitled to the same costs as if I had employed a solicitor to act for me on the basis that a person wrongfully brought into litigation ought to be indemnified against the expenses to which she is unjustly put.

7.    I am a legal practitioner who exercised my professional legal skill in conducting my case. I have quantified the time and effort that it has taken me to defend the respondent's unlawful actions and I claim the sum according to the itemised account billed at the legal practitioner rate of 5380 per hour.

8.    I rely on the fact that while Cachia is law for the proposition that a litigant in person who is not a lawyer/legal practitioner/solicitor/counsel is not entitled to claim for compensation for the loss of time spent in the preparation and conduct of the case, there exists an exception recognised in Cachia which is known as the Chorley exception. The exception supports the proposition whereby a practitioner can claim the costs for his/her own time in a case in which that practitioner is a party.

9.    Cachia has not been overruled.

10. The majority in Cachia interchange the words lawyer, legal practitioner, practitioner, solicitor and counsel throughout their discussion in obiter. The emphasis through out the majority judgment is not so much on the title but upon the profession and on 'professional skill and labour'. Reading the majority judgment is critical. At no time does the majority narrow the Chorley exception to only a solicitor but refers repeatedly to a legal practitioner. Essentially the varying words all mean the same thing.

11. In response to a possible suggestion that the exception is so narrow to require a person to have a practising certificate as a solicitor, is not supported by Cachia.

12. A more recent case on point is Lawrence v Nikolaidis [2003] NSWCA 129 (Lawrence) demonstrates the interpretation that the Court of Appeal has taken of Cachia. The majority (Hodgson JA with Beazley JA agreeing) on that appeal on point said:

“Where the self‑represented litigant is a solicitor, the solicitor can recover the reasonable costs of doing what is truly professional work in relation to the case”.

13. Again the emphasis in Lawrence is on 'truly professional work' which would apply to a legal practitioner, lawyer, counsel or other such relevant and appropriately qualified lawyer.

14. In this case, the applicant/tenant relies upon the Chorley exception to claim damages for the time and skill taken to defend the respondent's malicious prosecution.

15. The actions were malicious because they were unlawful, bullying and unremitting even in the face of legal advice from the Law Society and the tenant. The actions were not legally based and the lessor and her agent did not succeed.

16. My account for costs is the only way that I can demonstrate the damage that was caused to me by these actions.

SUBMISSION QUESTIONING THE PROBITY OF EVIDENCE SUBMITTED BY RESPONDENT TO THE ACAT ON 20 MAY 2011 ‑ LETTER TO APPLICANT DATED 4 AUGUST 2009

BACKGROUND

1. On 6 May 2011, Mr A Anforth, Senior Member of the ACT Civil and Administrative Tribunal, made an order that the lessor (respondent in this matter) "file and serve a copy of her letter dated August that advises the lessor's intention to renovate and allegedly asked the tenant to vacate".

2.    On 27 May 2011, the applicant collected a Registered Post article at the Kingston Post Office, which was from Mr Rayment, agent for the respondent. It contained two items: a signed letter from the respondent saying "as ordered by ACAT, I enclose a photocopy of my letter of 4 August 2009". The enclosed document states in part: "...I would like to inform you that I may start renovations on the house after our lease expires on 25 February 2010..."

3. The applicant, on reading the enclosure, which was not signed, was of the view that it was not a true copy of the original letter, but instead believed it to be a construction in order to avoid liability.

4. The respondent should have provided the court with her Notice to Vacate, which was delivered by Registered Post to the applicant on 20 August 2009, and which requested that the applicant vacate the premises on 6 November 2009 ‑ three months ahead of the end of the fixed term tenancy which was due to expire on 25 February 2010.

SUBMISSION

5.    The applicant respectfully submits that the respondent has misled the court by providing this evidence because it is not a true copy of the letter that the applicant received from the respondent at the time in August 2009, for the following reasons:

a.It refers to a fixed term tenancy to expire on 25 February 2010 which the applicant does not recall being in the original letter.

b. It does not mention an October/November 2009 vacating date which the applicant recalls being in the letter.

c. It is inconsistent with the respondent's Notice to Vacate that was delivered to the applicant by Registered Post on 20 August 2009 and which mentioned a vacation date of 6 November 2009.

d. It is inconsistent with the respondent's own later email to the applicant in which she says "I decided to formalise matters by giving you 12 weeks notice to vacate..."

e. It is not signed and therefore cannot be a photocopy as the respondent attests

f. It is not the evidence that the Tribunal sought ‑ the Tribunal sought evidence of the respondent's notice to terminate the tenancy agreement before the end of the expiry of the tenancy.

g. The respondent should have provided a true copy of the Notice to Vacate which was received by the applicant by Registered Post on 20 August 2009)

h. It is not signed and therefore cannot be a photocopy as the respondent attests

6.  The applicant also submits that the respondent should have provided to the Tribunal a true copy of her "Notice To Vacate" which was sent to the applicant's address by Registered Post on 20 August 2009.

7.    The applicant also submits that the respondent should also have provided to the Tribunal a copy of her email correspondence to the applicant stating (the applicant's emphases)

a. Our Fixed Term Tenancy Agreement ended on 7 January 2004 when it became a Periodic Tenancy. This is confirmed by paragraph 9 of the Agreement we signed in January 2003 ... I decided to formalise matters by giving you 12 weeks notice to vacate in accordance with paragraph 96(d) of the Agreement, that is because of my bona fide intention to renovate. It was not a notice without cause. The options you outline in your email of 15 August are therefore not agreed principally because it is not a Fixed Term Agreement. The situation as I see it is you were given 12 weeks notice to vacate on 14 August which expires on 6 November 2009. If you wish to vacate earlier, then 3 weeks notice is required ... In summary I am terminating the tenancy because of the intention to renovate. This is quite in accordance with our Tenancy Agreement and the date is 6 November unless you choose to leave earlier. I await your advice of the preferred time for the inspection on Saturday 22 August. It is still my wish for a tradesman to visit at 4 pm on Thursday 20 August.

8. The applicant submits that the Respondent should provide the Tribunal a true copy of the Notice to Vacate which was sent to the applicant by registered post and received by her on 20 August 2009, and which stated a vacating date of 6 November 2009 thus causing a breach of the tenancy agreement.

1. On 17 June 2011, the Respondent filed a further submission:

   1.   The following comments are submitted in response to the letter and (to us) its

   extraordinary amount of paperwork by the applicant, Ms M Barlow, dated 30 May 2011. Not all the statements in the letter will be addressed as the letter is daunting enough in its size and in the respondent's view, requiring needless time for ACAT consideration.

Inconvenience

2.   The 'loss of confidence' statements imply that the tenant expected the tenancy to

continue for as long as she wished. The respondent, as lessor, had every right to forecast the end of the tenancy as renovation was intended. Indeed the advanced knowledge should be seen as helpful.

3.   The Notice to Vacate was issued as the lessor sincerely believed the tenancy to be periodic and because the tenant had indicated her intention to seek early alternative accommodation.

4.   That the respondent expected the applicant to "bear all" of the risk is nonsense.

Both sides offered compromises and there was no ill will by the respondent.

Disquiet/Anxiety

5.   These points repeat earlier comments by the applicant and were covered in my

letter delivered to ACAT on 25 May. The respondent gave no personal data of the applicant to the ACT Law Society. Discussion was strictly hypothetical.

Security

6.   The applicant's anxiety is noted. As stated above she could not have expected an

endless tenancy and 6 months' notice is considered helpful.

Demands on Personal Time & Professional Expertise

7.   Noted. The amount of paper in the letter by the applicant indicates she could make the time available. The respondent spent at least a similar amount of time and effort in the correspondence between August and November, without access to legal advice.

Compensation

8.   Paragraph 1 is extraordinary. Mr Rayment has never suggested that the tenant

wanted to "take his money". It is an offensive remark.

9.   Paragraph 2 contains two errors. The Law Society did not so advise me and the

Tribunal did not order that there was a fixed term lease.

10.    Paragraphs 3 and 4. There was no "malicious prosecution". The respondent is a

self funded retiree without the resources to engage legal advice, except once, later in the year. The applicant did tell my agent and me that she was employed full time in a Federal Government Department.

11.    The remainder of the compensation submission is a repeat of the applicant's claim that she deserved compensation because she is a lawyer. The respondent is not. The whole dispute was a series of correspondence between a lessor and a lessee and does not deserve the attempted upgrading to some sort of court case involving a prosecution defended by a member of the legal profession.

Chronology

12.    The respondent has copies of all correspondence between the parties. It is of

surprise that the applicant would burden ACAT with the implied need to read all these documents, noting the first eight or so pages contain some repeated documents and the applicant's personal slant on them It must have taken a long time to prepare all the paperwork which presumably impacted on the applicant's day job or the private work for Athena Communications P/L mentioned in her professional expertise section.

Probity of Respondent's Evidence

13.    At the hearing on 6 May Mr Anforth asked the applicant if she had a copy with

her of the letter the respondent had sent in August 2009 informing of the intention to renovate. She did not. The respondent was ordered to provide it. The copies of the letter dated 4 August provided to ACAT and the applicant are genuine. It was the first action taken by the respondent concerning the intended renovation and concluding the tenancy. The copies were not signed ‑ of course not as they are photocopies taken from my file. The original document is still on my computer.

14.    The applicant states she believes the letter to be a "construction in order to avoid

liability" and later that the respondent has "misled the court". The applicant also sent a personal letter repeating her accusation and advising that it is "an offence to construct evidence in legal proceedings" and suggesting it be withdrawn.

15      A sympathetic interpretation of the applicant's statements is that she forgot about the letter's existence. But the letter was the origin of the whole dispute and there is no doubt it is the correct document. A less understanding interpretation is that the applicant, with words throughout her submissions like "malicious"," bullying", "unlawful" is showing an attitude not in keeping with her submission.

16     The respondent takes great exception to the applicant's insulting statements

which impugns on the respondent's and her partner/agent's honesty and probity. An apology is in order.

17 The reference to the Notice to Vacate is covered in my paragraph 3 above.

Conclusion

18. It is still the respondent's view that the tenancy was periodic. Current advice from

a reputable Real Estate Agency is that a tenancy can only be regarded as fixed when it is authorised by a signed lease. This echoes the advice I had in August 2009. That the applicant has adopted so fierce an attitude to the periodic/fixed status is not and has not been understood unless it is a means of stating imagined hurt and to seek compensation. It was certainly caused a disproportionate level of stress and angst to the respondent.

19. According to current practice in the ACT, even if a tenancy is fixed term, if the tenant wishes to vacate early, they are obliged to give two weeks' notice and to pay rent to the nominal tenancy end date (or a replacement tenant is found ‑ the latter was not applicable in this case). On 27 January 2010 the applicant gave seven days' notice to vacate. Four days later this was changed to 25 February. In the event the property was vacated on 9 February and the lessor informed the following day. These actions all contributed to confusion and demonstrated that the applicant intended to vacate according to her own timetable and treated the matter cavalierly.

20 On her departure the applicant owed seven weeks' rent ($2940.00). Numerous requests to the applicant to pay were refused, until her "account" had been paid. It was the respondent's view that the applicant needed to accumulate bond and rent money for her next rental and used the excuse of her 'account' to finance this at the respondent's expense. So much for the applicant to make accusations of unlawfulness. At the first Tribunal hearing on 29 March 2010, the applicant was ordered to pay an amount of outstanding rent by fortnightly instalments to the Tribunal. The sum was $1360.00 and a penalty was to apply for non payment. In the event the applicant paid only $800.00 concluding on 18 November 2010. The applicant was reminded by a remark by my agent at the Tribunal hearing on 6 April 2011. The outstanding $560.00 was not received until 26 May this year.

21. Further complicating the respondent's financial situation was the applicant's refusal to allow the renovator access to the property to take measurements and thus provide quotes. It was suggested by the Member at the first Tribunal hearing that Ms Barlow could allow reasonable tradesperson access in the spirit of cooperation. The applicant was surely aware that her refusal would cause significant delays to the renovation and such was the case. So much for the applicant bearing 'all the risk' Noting the need to pay mortgage costs, rates, levies, insurance and other costs, the delay to completion is estimated to be six‑eight weeks. The property was not rented until early June 2010.

22. Apart from the financial problems, the applicant's attitude, particularly towards the end of 2009 and early 2010 could at best be described as recalcitrant. The question of psychological and physical stress was covered in my submission dated 25 May 2011. The applicant's utter lack of compromise about renovator visits also prevented the arranging of finance for the project and added more stress to the respondent who was in hospital having just had a major operation for cancer when the applicant announced her departure earlier than anticipated. This means that the respondent was forced, in a seriously weakened state of health, to commence preparations for renovations from scratch. Much of this could have been avoided if prior planning had been allowed by the tenant.

23. It should also be noted that the tenant paid for some years, significantly less than market rent for the property. (see Allhomes historical data)

The Hearing

1. A hearing was held on 1 July 2011. During the hearing the parties identified the relevant documents. The Tribunal also discussed the matter with the parties. In the course of the discussion the Respondent accepted that she was mistaken in her assumption that the tenancy was a periodic tenancy. The Tribunal noted that the service of a Notice to Vacate within a fixed term was a breach of the lease and that the Notice was invalid.

1. The Tribunal queried the existence of any tort of malicious prosecution and the indicia of the tort, assuming it existed.

1. At the end of the hearing, the Tribunal made the following Orders:

   1. The tenant is to file and serve by 15 July 2011:

   (a) Authorities establishing the existence of a tort of malicious

   prosecution;

   (b) Submission on why that tort has occurred in this case,

   (c) A copy of her practicing certificate

   2. The Lessor is to file and serve by 30 July 2011, submissions in reply

   3. The matter will then be the subject of a decision in writing.

1. On 18 July 2011, the Applicant filed a further submission as follows:

SUBMISSION ESTABLISHING THE TORT OF MALICIOUS PROSECUTION AND THAT THE TORT HAS OCCURRED IN THIS CASE ‑ in response to order of the Tribunal dated 1 July 2011

PREAMBLE
The applicant has brought this action for damages in the view that no‑one who is law abiding, and who has done nothing wrong, who is brought into litigation which is wrongly based, and which does not succeed, should then be further disadvantaged by not being able to be reimbursed for the costs in either time or effort or professional skill that it has taken to successfully defend that action.

TORT OF MALICIOUS PROSECUTION
Malicious prosecution is a tort that reflects these circumstances - and which enables a person to seek a civil claim for damages against their prosecutor. It is not restricted to criminal law matters. It is a tort that is governed by the common law. To succeed in such a cause, the onus is on the plaintiff to prove each of the following elements:

1 .The prosecution proceedings (normally criminal but also civil) were initiated by the   

prosecutor against the plaintiff

2. termination of the prosecution proceedings was in the plaintiffs favour

3. there was no reasonable cause for the prosecution

4. there was evidence of malice on the prosecutor's part

5. the plaintiff suffered actual damage

FIRST ELEMENT ‑ PROCEEDINGS WERE INITIATED BY THE RESPONDENT

In August 2009, the respondent initiated proceedings to evict the applicant six months ahead of her fixed term tenancy that was due to expire on 25 February 2010. On 20 August she served a notice to Terminate, the date of termination to November 2009. The reason that she gave was that she was to renovate. She made repeated requests to have renovators come to the apartment for the purpose for the measurements for the renovations. The applicant refused these re renovators to come to the apartment, and as a result, the respondent took the Tribunal.

SECOND ELEMENT ‑ TERMINATION OF THE PROSECUTION WAS IN THE PLAINTIFF'S FAVOUR
At the Tribunal hearing on 17 December, the Tribunal determined that there was a fixed term tenancy to expire on 25 February 2010. The respondent had denied the existence of such a fixed term tenancy. Also, the Tribunal did not give the order for renovators to come to the apartment in response to the applicant's submission that "there were no provisions for that purpose under the tenancy agreement".

THIRD ELEMENT ‑ THERE WAS NO REASONABLE CAUSE FOR THE PROSECUTION
The respondent acted contrary to the provisions of the Residential Tenancies Act by issuing a Notice to Vacate before the end of a fixed term tenancy. As such there was no reasonable cause for her actions.

In Sharp v Biggs [1932] HCA 54, Starke J cites Lord Esher M R in Brown v Hawkes:

‘that the plaintiff should prove a want of reasonable and probably cause for the action of the defendant ... and if he fails in doing this his case is at an end. The question whether there is an absence of reasonable and probable cause is for the judge...

The applicant in both words and behaviour consistently resisted the respondent's actions which were on‑going and which persevered from August 2009 to December 2009.

FOURTH ELEMENT ‑ THERE WAS EVIDENCE OF MALICE OR IMPROPER PURPOSE ON THE PROSECUTOR'S PART
Whilst the applicant can accept that, as the respondent claims, she was of the view that she was entitled to issue the notice to vacate for the purposes that she claimed, it is also true that she might have desisted in her actions given advice that she was not entitled to make the demands that she continued to make.

Instead, the respondent did not desist in her actions, even after she was aware that her actions may not have been correct or lawful. The applicant submits that, whilst it is not materially possible to know what is in a person's mind, a person's actions will be evidence of a person's mind and that one may reasonably infer intention or improper purpose. The applicant submits that whilst it may be the case that the respondent was not clear as to her rights as a lessor under the tenancy agreement in the beginning of her actions, as time went on, her persistence amounted to a demonstration of malice and improper purpose, as she continued to press her requests even when provided with legal advice that under the fixed term tenancy she was not entitled to those requests even after the Tribunal did not grant her those requests as there was no contractual right for that purpose under the agreement.

In December 2009, having failed in her request for an order for renovators visits, but having obtained an order for a 'routine inspection' from the Tribunal, the respondent,            unusually, and as she had never done before in six and a half years of tenancy, came to the apartment purportedly for the routine inspection with her agent and proceeded to take measurements of windows and bathrooms. The applicant inferred from these actions that the respondent's request to the Tribunal for an order for a 'routine' inspection was not for that purpose at all, but for a defacto 'renovator's visit an order which the Tribunal had not granted. The applicant submits that at that point, she was confirmed in her inference of malice on the part of the respondent.

FIFTH ELEMENT ‑ THE PLAINTIFF SUFFERED ACTUAL DAMAGE
The applicant suffered actual damage as submitted to the Tribunal in her earlier submissions. The applicant submits that the quantum of damage may be determined by reference to the High Court Case Cachia v Hanes [1994] HCA 14 ‑for damages to be assessed in line with the bill of costs that the applicant submitted to the respondent, and which is before the Tribunal, indicating the time that she, as a legal practitioner, using her professional knowledge and skills, had spent in successfully defending the respondent's actions.

A LEGAL PRACTITIONER IS ENTITLED TO RECOVER THE COST OF TRULY PROFESSIONAL WORK
Cachia v Hanes [1994] HCA 14 is law for the proposition that a litigant in person who is not a lawyer/legal practitioner/counsel is not entitled to claim for compensation for the loss of time spent in the preparation and conduct of her case. There is an exception recognised in Cachia which is known as the Chorley exception. This exception supports the proposition that a practitioner can claim the costs for his or her own time in a case in which that practitioner is a party. Cachia has not been overruled.

The majority in Cachia interchange the words lawyer, legal practitioner, practitioner, solicitor and Counsel throughout their discussion in obiter. The emphasis throughout the majority judgment is not so much on the 'title' but upon the profession and on 'professional skill and labour'. At no time does the majority narrow the Chorley exception to only a solicitor but refer repeatedly to a legal practitioner.

The suggestion that a person need have a practising certificate as a solicitor is not supported by Cachia.

Lawrence v Nikolaidis [2003] NSWCA 129, demonstrates the interpretation that the Court of Appeal has taken of Cachia. The majority (Hodgson JA with Beazley JA agreeing) on that appeal on point said;

'Where the self‑represented litigant is a solicitor, the solicitor can recover the reasonable costs of doing what is truly professional work in relation to the case.’

The emphasis in Lawrence is on 'truly professional work' which would apply to a legal practitioner, lawyer, counsel or other such relevant and appropriately qualified person.

It was held by Meagher JA (contra) that:

'A solicitor acting for himself is entitled only to charge those reasonable expenses which required the exercise of professional legal expertise This is supported not only be general principle but also by the decision of the High Court in  Cachia v. Hanes. This principle has nothing to do with the broad question of reasonableness; it has everything to do with the narrower question of whether the item in respect Of which costs are claimed can be accurately classified as one requiring the exercise of professional legal skill'.

EXERCISE OF PROFESSIONAL LEGAL EXPERTISE
The applicant is a legal practitioner admitted to the Supreme court of the ACT in 2000. At the time of the proceedings she was the holder of a restricted practising certificate as in‑house legal counsel for her company Athena Communications Pty Ltd. A copy of the certificate is attached at Appendix "A".

The applicant submits that the bill of costs that she submitted to the respondent in defending the respondent's actions, a copy of which is before the court, can accurately be classified as work which required the exercise of her professional legal expertise.

DAMAGES IN THE ALTERNATIVE
Should the Tribunal not be persuaded that the tort of malicious prosecution has been proven, the applicant submits that damages will flow from the respondent's breach as already submitted by the applicant to the tribunal in the course of these proceedings.

In documents already before the court, the applicant contends that the damage to her quiet peace and enjoyment' of the premises, and the attendant ongoing need to defend the actions of the respondent, is damage that can be reimbursed, after Cachia, according to the bill of costs that the applicant submitted to the respondent, demonstrating the actual time and professional skill needed to successfully defend the actions.

1. The Respondent filed a final submission on 28 July 2011

   RESPONSE TO THE APPLICANT'S SUBMISSION DATED 18 JULY 2011

Firstly, it should be noted that because of her financial circumstances at this time, the Respondent is unable to afford legal advice in relation to this matter. Therefore her response to the Applicant's assertions are based on her own interpretation of events and her desire for the Applicant's obsessive pursuit of these claims to be finally concluded. Moreover it was not possible to obtain the Applicant's latest submission until 25 July because of the Respondent's absence in Sydney, as explained in the email to Mr Anforth (copy attached).

1. The Respondent accepts that her interpretation of the lease as a periodic tenancy was incorrect and that the lease was in actual fact a fixed term tenancy. This was a genuine mistake on the part of the Respondent based on the ambiguous definition in the ACT Government Rental Book, and advice taken from Real Estate agents. Notwithstanding assertions by the Applicant, that the tenancy was fixed, this was not stated by the Tribunal until the hearing on 1 July this year. That the Applicant informed the Respondent that the tenancy was fixed was assessed as an opinion, not shared by the Respondent.

2. The first letter sent to the Applicant dated 4 August 2009 (which is on file) demonstrated good will to the tenant, allowing her to stay until the end of her lease in February. The phrase: "even though I am only required to give you 3 months notice", demonstrated that the Respondent believed that the lease was periodic. Naive? Perhaps; malicious? ‑No.

3. Much of the subsequent correspondence between the participants was generated by the Applicant herself. The very first letter sent to her requested some visits by trades people so that the Respondent could get quotes for the planned renovation, in order to organise finance. The Applicant's refusal was recalcitrant to say the least. In the previous 7 years she had always managed to make the property available for routine 6 monthly inspections and, importantly, visits by tradespeople to effect repairs or maintenance. All requests for access to do with the renovation were predicated by an acknowledgement of a time suitable to the Applicant. If she had agreed to this request, it is unlikely this whole disagreement would have arisen.

4. The Applicant states that the prosecution was "malicious". The dictionary defines malicious as being in law; "vicious, wanton or mischievous in motivation or purpose" It can be seen that the original letter was far from "malicious" in intent, and that subsequent correspondence was reasonable in tone, using words like "accommodating" and "flexibility" in relation to the Applicant's departure.

The Applicant could also have avoided time consuming correspondence if she had agreed to:

·A routine and legitimate 6 monthly inspection.

·Pay her rent. She agreed that she would not leave the premises until the end of the lease in February 2010. She stopped paying rent in December 2009.

·Surrender the bond in lieu of unpaid rent

Notwithstanding the Applicant's assertions that because she is a legal practitioner (when the Respondent is not so qualified) she should be entitled to claim a large sum of money for her hours of work on correspondence does not indicate a just and fair understanding of what was simply a normal , albeit sometimes perplexing exchange between a lessor and a lessee.

In conclusion, I believe that the Applicant has not adequately demonstrated that she suffered malicious prosecution and is not entitled to damages. She left the tenancy at a time to suit herself. She refused to pay rent, I believe in order to accumulate bond money for her next tenancy. If there is a victim, the Respondent has suffered considerable financial loss as a result of unpaid rent, delay in the commencement of the renovation, and subsequent re-rental of her own property. I believe the Applicant is undertaking a persistent campaign of wilful harassment and it is now time for everyone involved, including ACAT and the ACT taxpayer that these proceedings are terminated.

Findings

1. The Tribunal found that the parties were in a tenancy relationship. The tenancy consisted of a series of 12 month fixed term tenancies, the last fixed term commencing on 24 February 2009, to expire on 24 February 2010.

1. The Respondent served a Notice to Vacate on the Applicant on 17 August 2009, requiring the Applicant to vacate on 9 November 2010.

1. As this notice was served during a fixed term it amounted to a breach of the lease and the Applicant could have served the requisite notice and vacated without penalty after that date.

1. In proceedings RT 09/856 and 10/185 the Tribunal heard and determined two applications by the present Respondent. In both cases, the Respondent was either wholly and substantially successful.

1. No counter claim was lodged in either of these proceedings by the present Applicant.

1. No appeal was lodged in relation to either of these proceedings.

   Characterisation of the Claim

2. The Applicant asserts in her submissions that this claim is a claim for the tort of malicious prosecution, not a claim for costs.

1. A number of the items on the account, adding to approximately $2000 relate to time spent in relation to proceedings.

1. In those circumstances, it is difficult to avoid the inference that this application is a roundabout way to seek costs in the Tribunal, when no application had been made for such costs and section 48 of the ACT Civil and Administrative Tribunal Act states that each party must bear their own costs in the Tribunal unless the Tribunal otherwise orders.

1. The Applicant relies on the decision of the High Court in Cachia v. Hanes [1994] HCA 14. This case was an appeal from the NSW Court of Appeal which disallowed, on a taxation of costs, many of the costs of a litigant in person who was a consulting engineer, based on an hour basis for the time he spent in conducting the case. The majority of the Court maintained the position that a litigant in person is not entitled to recover costs outside of normal out-of-pocket expenses. While that case recognized that the situation may be different for a solicitor acting in person, the case is only relevant where there are costs orders made in favour of a party. As the Tribunal did not make orders for costs in the two proceedings that case is not relevant.

Anshun Estoppel

1. The Applicant has sought to reopen issues going to the merits of the prior determination by the Tribunal. She is also now propounding what is in effect a counter claim or even belated defence to the prior actions in the Tribunal.

1. The Applicant now frames her counter claim or belated defence in terms of a malicious prosecution and seeks damages. Whether such a claim is framed in terms of a malicious prosecution, a breach of her quiet enjoyment or a derogation from the grant by the lessor, in issuing the invalid Notice of Termination, such a claim could have been brought in the context of the earlier proceedings. Any damages awarded to the Applicant in those earlier proceedings would have acted as a set off against the lessor’s claim. No such counter claim or defence was lodged by the Applicant in those earlier proceedings.

1. The applicant is estopped, by the Anshun principle, from re-litigating matters that have been previously litigated or that could have been raised in the previous litigation.

1. Anshun estoppel arises from the decision of the High Court in Port ofMelbourne Authority v. Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 in which the High Court endorsed the “extended principle” expressed by Wigram VC in Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100, at 115; [1843] EngR 917; 67 ER 313, at 319:

   “where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

Malicious Prosecution

1. The Tribunal considers that the above basis would be sufficient to dispose of this application.

1. However, out of deference for the Applicant’s submissions, the Tribunal will consider her claim for malicious prosecution.

1. The Tribunal notes it has jurisdiction to deal with a “damages application” under s. 16 (b) of the ACAT Act. An action for tort is a “damages application”.

1. Traditionally, the tort of malicious prosecution was limited to malicious prosecutions of the criminal law. The extension of the tort to civil actions is very limited and pertains to matters of a defamatory kind (Sappideen and Vines Fleming’s The Law of Torts, 10^th ed at p693). The present action does not come within this category.

2. The Applicant purported to rely upon the decision of the High Court in A v State of New South Wales [2007] HCA 10. That case concerned a malicious criminal prosecution and is no authority for the extension of the tort to alleged malicious civil proceedings. In that case, the majority noted :

For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause.

1. The Tribunal is of the view that the institution of a tenancy action cannot constitute a malicious prosecution within the concept of that tort at common law.

1. It may be that the institution of a tenancy action may constitute an abuse of process at common law. But the essence of this tort is the use of the civil process for ulterior purposes (Sappideen and Vines Fleming’s The Law of Torts, 10^th ed at p 707). There is neither suggestion, nor evidence that the leesor’s in this case instated the proceedings for any ulterior purpose.

2. In any event, even if the tort of malicious prosecution did exist in relation to civil tenancy actions, or even if the lessor did have an ulterior purpose, the fact remains that the lessor was largely successful in her action in securing both possession of the premises and rent arrears. In these circumstances the Tribunal cannot see how it is possible for either alleged tort to arise.

3. On all the bases referred to above, the Applicant’s claim fails and the Application is dismissed.

4. By way of obiter, the Tribunal notes that if there has been any abuse of process, then that abuse lies in the institution of the present action by the Applicant.

5. The issue of costs is reserved and the parties have leave to relist for that purpose within 30 days of the publishing of these reasons.

   ………………………………..

   Mr A. Anforth

   Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      XD 165 of 2011

APPLICANT:               MICHAELA BARLOW

RESPONDENT:           ROWAN BERGIN

COUNSEL APPEARING:      APPLICANT:          N/A

RESPONDENT:      N/A

SOLICITORS:  APPLICANT:           N/A

RESPONDENT:      N/A

OTHER:  APPLICANT:          IN PERSON

RESPONDENT:      IN PERSON

TRIBUNAL MEMBER:     Mr A. Anforth

DATE/S OF HEARING: 6.05.11 & 01.07.11             PLACE: CANBERRA

DATE/S OF DECISION:  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )       CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: