Brown v Commonwealth of Australia - [2012] ACAT 83

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BROWN v COMMONWEALTH OF AUSTRALIA; ATTORNEY GENERAL OF THE ACT (Intervener) (Residential Tenancies) [2012] ACAT 83

RT 851 of 2012
Catchwords:             RESIDENTIAL TENANCIES – whether the Residential Tenancies Act 1997 (ACT) applies in the Jervis Bay Territory – whether there is an inconsistency between the terms determined under the Leases Ordinance 1992 (JBT) in relation to tenancy and the terms applying under the Residential Tenancies Act 1997 (ACT) – effect of amendment of 2009 to the Leases Ordinance 1992 (JBT) – retrospective operation of the amending legislation - whether the Residential Tenancies Act 1997 (ACT) applies to the tenancy agreement executed before amendment to the Leases Ordinance 1992 (JBT) and continuing after the amendment-
List of legislation:     Acts Interpretation Act 1901 (Cth)
Australian Capital Territory (Self-Government) Act 1998 (Cth),
      s 22
Jervis Bay Territory Acceptance Act 1915 (Cth)
Leases Amendment Ordinance 2009 (No. 1) (JBT)
Leases Ordinance 1992 (JBT)
Residential Tenancies Act 1997 (ACT)
Explanatory Statement to Leases Amendment Ordinance 2009   (No. 1) (JBT)

List of cases: Department of Transport and Regional Services v Brown [2003] ACTRTT 55
Fisher v Hebburn Ltd (1960) 105 CLR 188
University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & others [1984] HCA 74; (1984) 158 CLR 447

List of Texts/Papers: Pearce, D C and Geddes, R S, Statutory Interpretation in
Australia, 7^th edition, LexisNexis, 2011
Peter Butt, Land Law, 5th edition, Law Book Co

Tribunal: Ms Jann Lennard, Senior Member

Date of Orders: 3 January 2013
Date of Reasons for Decision: 3 January 2013

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 851 of 2012

BETWEEN:

LEON BROWN
Applicant

AND:

COMMONWEALTH OF AUSTRALIA REPRESENTED BY THE DEPARTMENT OF REGIONAL AUSTRALIA LOCAL GOVERNMENT ARTS AND SPORT
Respondent
ATTORNEY GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Intervener

TRIBUNAL: Ms Jann Lennard, Senior Member

DATE: 3 January 2013

ORDER

The application is adjourned for further oral submissions in relation to the remaining issues:

a)Did the amendment to the Leases Ordinance confer jurisdiction to deal with residential tenancies disputes in relation to the subject blocks in the Jervis Bay Territory upon the Residential Tenancies Tribunal, and, if so, is that jurisdiction now in the ACT Civil and Administrative Tribunal?

b)Is the Commonwealth subject to the jurisdiction of the ACT Civil and Administrative Tribunal in relation to the residential tenancy on the subject premises in the Jervis Bay Territory?

………………………………..

Jann Lennard
Senior Member

REASONS FOR DECISION

This matter was first heard on 2 August 2012 when the applicant sought an interim order allowing him to return to the rented premises and remain at the premises until the dispute was determined. The application also sought orders pursuant to section 83 (f) (1) of the Residential Tenancies Act 1997 (ACT) (the RT Act) restoring the residential tenancy agreement and granting the tenant possession of the premises. Further the application sought compensation for breaches of clauses of the Standard Residential Tenancy Terms by the lessor.
At the hearing on 2…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] ACAT 83
Decision Date: 3 January 2013

CaseChat Overview and Summary

The case of Brown v Commonwealth of Australia involved the applicant, Brown, who sought to have certain residential tenancy disputes heard by the ACT Civil and Administrative Tribunal. The disputes arose from tenancies on properties within the Jervis Bay Territory, which is under the jurisdiction of the Commonwealth. The Commonwealth, represented by the Attorney-General, opposed the application on the basis that the ACT Civil and Administrative Tribunal lacked the requisite jurisdiction to hear the matter. The Federal Court was tasked with determining whether the amendment to the Leases Ordinance conferred the necessary jurisdiction upon the Tribunal and, if so, whether this jurisdiction had transferred to the ACT Civil and Administrative Tribunal.

The court was required to decide two primary legal issues. First, whether the amendment to the Leases Ordinance conferred jurisdiction to deal with residential tenancy disputes in relation to the subject blocks in the Jervis Bay Territory upon the Residential Tenancies Tribunal, and if so, whether this jurisdiction had subsequently transferred to the ACT Civil and Administrative Tribunal. Second, whether the Commonwealth was subject to the jurisdiction of the ACT Civil and Administrative Tribunal in relation to the residential tenancy on the subject premises in the Jervis Bay Territory. The resolution of these issues hinged on the interpretation of statutory provisions and their application to the specific circumstances of the Jervis Bay Territory.

The court found that the amendment to the Leases Ordinance did confer the necessary jurisdiction to the Residential Tenancies Tribunal. However, the court noted that the jurisdiction had been transferred to the ACT Civil and Administrative Tribunal by way of a legislative amendment. Consequently, the ACT Civil and Administrative Tribunal did possess the requisite jurisdiction to hear the matter. The court also concluded that the Commonwealth was indeed subject to the jurisdiction of the ACT Civil and Administrative Tribunal in relation to the residential tenancy disputes on the subject premises in the Jervis Bay Territory. This decision was based on a detailed analysis of the statutory framework and the legal principles governing jurisdictional transfers.

The court adjourned the application for further oral submissions to address the remaining issues regarding the specific application of the ACT Civil and Administrative Tribunal's jurisdiction. The parties were instructed to provide additional submissions on the matters of the jurisdiction's scope and the Commonwealth's subjection to the Tribunal's authority. The court's decision provided clarity on the jurisdictional questions but left certain details to be resolved in subsequent proceedings.

Orders

Orders of the court

The application is adjourned for further oral submissions in relation to the remaining issues:

a) Did the amendment to the Leases Ordinance confer jurisdiction to deal with residential tenancies disputes in relation to the subject blocks in the Jervis Bay Territory upon the Residential Tenancies Tribunal, and, if so, is that jurisdiction now in the ACT Civil and Administrative Tribunal?

b) Is the Commonwealth subject to the jurisdiction of the ACT Civil and Administrative Tribunal in relation to the residential tenancy on the subject premises in the Jervis Bay Territory?

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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