Commissioner for Housing for the Act v Allan [2007] Actrtt
[2007] ACTRTT 21
•23 July 2007
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION:COMMISSIONER FOR HOUSING FOR THE ACT V ALLAN [2007] ACTRTT 21 (23 July 2007)
RT 111of 2007
Catchwords: The Commissioners social obligations.
Orders for possession in cases of nuisance and annoyance of neighbours.
Breaches which cannot be remedied.
Tribunal:Mr A Anforth, Member
Date: 23 July 2007
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 111 of 2007
RE: COMMISSIONER FOR HOUSING FOR THE ACT
(Applicant/lessor)
AND: KYLEE JANNICE ALLAN
(Respondent/tenant)
DECISION
Tribunal : Mr A Anforth, Member
Date : 23 July 2007
Decision :
The tenancy is terminated and the tenant is to give vacant possession of the premises on or before 8 August 2007.
…………………………….
Member
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 111 of 2007
RE:COMMISSIONER FOR HOUSING FOR THE ACT
(Applicant/lessor)
AND: KYLEE JANNICE ALLAN
(Respondent/tenant)
REASONS FOR DECISION
23 July 2007 Mr A Anforth, Member
REASONS FOR DECISION
(1) The Respondent is the tenant of the Commissioner in premises at 8/4 Merri Place in Condor where she lives with her two small children aged 4 and 5 years. The children’s father, Mr Kaine Gleeson also regularly stays at the premises. The tenancy commenced on 5 September 2002.
(2) The premises are located in a horizontal strata complex in which there are 13 units arranged in a roughly circular manner.
(3) On 12 February 2007 the Commissioner lodged an application with the Tribunal seeking an order for possession of the premise. Attached to the application were the following documents:
(a) A Statement of Particulars setting out the various events relied upon by the Commissioner.
(b) A copy of the residential tenancy agreement
(c) A series of written complaints from various persons, some of whom are identified and others are not.
(d) A copy of a Notice to Remedy dated 13 September 2006 and an affidavit of service indicating that the Notice to Remedy was served on the tenant personally on 13 September 2006.
(e) A copy of a Notice to Vacate dated 5 December 2006 and an affidavit of service indicating that the notice was delivered to the premise on 5 December 2006 and left in the security door. The notice was also served by post on that same day.
(f) Various police records.
(4) The Notice to Remedy alleged that the tenant’s visitors had engaged in aggressive behaviour towards neighbours and had created traffic congestion in the manner in which they parked their vehicles. The Notice also refers to “illegal activities” without specifying what those illegal activities were. It later became apparent that the Commissioner was alleging drug dealing from the premise. The Notice alleged that the above conduct constituted a breach of prescribed terms 70 and 73 of the Residential Tenancies Act 1997 (the Act).
(5) The Notice to Vacate was in the same terms as the Notice to Remedy save that it nominated five specific incidents, being:
“A Notice to Remedy the aggressive behaviour of friends and visitors to your unit towards neighbouring residents, use of the common driveway traffic congestion within the complex and allegations of illegal activity was served on the 13 day of September 2006. The breaches have not been remedied.
Complaints on the 27th of September 2006 refer to abusive language from visitors when a request was made to move a vehicle blocking access in the common area.
On the 28th of September 2006 Kaine Gleeson approached the neighbouring property, verbally abused and threatened the occupant, stating "everything was fine until you moved in and now you are lying to turn everyone against us and you'd better watch out. "
On the 1st of October 2006 at approximately 11.00pm fighting, screaming and swearing was occurring in the Common Area - Kaine Gleeson verbally abused neighbours.
On the 16th of November 2006 further letter of complaint in relation to ongoing alleged illegal activity creating traffic congestion and aggressive and abusive behaviour of visitors to your unit.
Friday 1st of December 2006 a further incident reported about fighting at the premises.”
(6) The Notice required the tenant to vacate the premises on or before 19 December 2006.
(7) Prescribed term 93 of the Act requires that the Notice to Vacate give 14 days notice. Because the Notice served by the Commissioner specifies the 19 December 2006 as the date for possession, the Notice can only be valid if it was lawfully served on 5 December 2006. The Act does not actually specify how a Notice to Vacate may be served. In these circumstances section 247 Legislation Act 2001 may apply, in which case the purported service by the Commissioner by placing the Notice in the security door would not comply with section 247. The postal service by the Commissioner would not be deemed served until the notice was delivered in the normal course of post (section 250 Interpretation Act 2002) which can only occur after its postage on 5 December 2007. Accordingly, if section 247 governs service of the Notice to Vacate then the notice has not been validly served.
(8) However section 251 Legislation Act 2002 provides that section 247 has no application if the service of the document in question (the Notice to Vacate) is governed by some other law. In the present case regulation 5 Residential Tenancies Regulations 1998 appears to regulate the service of a Notice to Vacate and therefore precludes the operation of section 247 (notwithstanding what appears to be a drafting error in the opening line):
For the Act, section 58 (1) (b) and section 59 (1) (b) a termination notice must be served—
(a) on an individual—(i) by delivering it to the person personally; or
(ii) by leaving it at, or sending it by prepaid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(iii) by leaving it at, or sending it by prepaid post to, the address for service provided by the person under the Act, schedule 1 (Prescribed terms), clause 98; or
(b) on a corporation—by leaving it at, or sending it by prepaid post to, the head office, a registered office or a principal office of the corporation.
(9) There is no provision in the Act which directly authorises the making of regulations to deal with the service of a Notice to Vacate. Section 136 of the Act authorises the making of regulations in general terms, and then lists a range of specific topics in relation to which regulations may be made. One of those specific topics is “the giving of notices to parties before a tribunal hearing” but there is no specific power to prescribe by regulations the mode of service on a Notice to Vacate. For present purposes the Tribunal shall assume the validity of regulation 5.
Regulation 5(a)(iii) permits service by leaving the notice at the address for service provided by the tenant. It does not contain the additional requirement found in section 247 Legislation Act 2002 that the notice be left with any particular person at that address. Regulation 5(a)(iii) would appear to authorise the mode of service adopted by the Commissioner.
Prescribed term 83 deals with the content required in a Notice to Vacate:
83. The notice to vacate shall be in writing, in the form required by the Residential Tenancies Act, and shall include the following information:
(a) the address of the premises;
(b) the ground(s) on which the notice is issued, together with sufficient particulars to identify the circumstances giving rise to the ground(s);
(c) that the lessor requires the tenant to vacate the premises by the expiry of the required notice period and that the tenancy shall end on the day that the tenant vacates the premises.
The Notice served by the Commissioner appears to satisfy these requirement.
The complaints attached to the Commissioner’s applications were:
(a) Frank Corujo, dated 22 August 2006, alleging drug dealing, congestion from parked cars, littering, constant fighting between the tenant and Mr Gleeson, swearing, and acts of violence.
(b) An anonymous and undated complaint, later disclosed to be by the next door neighbour Joanne Bradley, alleging drug dealings from the premises
(c) An anonymous complaint, later disclosed to be by the next door neighbour James Stuart, the partner of Joanne Bradley, relating to an incident on 28 September 2006 when Mr Gleeson is alleged to have attempted to pick a fight with the complainant.
(d) An anonymous complaint, later disclosed to be by Joanne Bradley, of 14 November 2006 describing a series of incidents over the preceding few days. These included drug dealing, domestic fights and swearing that could be heard by the neighbours
(e) An anonymous complaint of 4 December 2006, later disclosed to be by Joanne Bradley, alleging drug dealings from the premises and traffic congesting from people visiting the tenants premises.
There was an anonymous complaint of 5 February 2007, later disclosed to be by Joanne Bradley, concerning an incident in which Mr Gleeson is alleged to have threatened Ms Bradley and Mr Stuart with a baseball bat. The full text of this complaint is as follows:
I have had continued problems with (deleted) (Unit no. 8) and continue to live in fear for my safety and for the safety of property.
I am lodging this complaint about an incident that occurred on last Friday night (2 Feb 07).
I had friends come over to my house in the evening and they had just got a flat tyre on their car. We went out the front of my residence to assist them to change the tyre when we where approached by Kaine Gleeson (who resides at No 8) and an unknown male.
Kaine had in his hand a baseball bat and was holding in a manner as though he was about the swing it. He began to threaten myself and my partner, saying, "You don't understand, when my dealer finds out who tipped the cops of about us, it's not going to be worth living in Canberra anymore - your housing will be burnt down - you don't understand how serious this is! You're lives won't be worth living." The other man that was with Kaine at this time was saying to him, "Come on, let's just smash these cunts."
The men continued to swear at us and make threats, and on a few occasions taking steps forward holding the bat, trying to scare us as we attempted to calm them down. This lasted for approximately 20 minutes with myself negotiating with him to put the weapon down. Kaine eventually threw the bat away and his son (approximately 3 years old) who was also outside with them went and picked the bat up. My partner continued to say to him that we didn't want any trouble, however Kaine continued to verbally abuse and threaten us.
The man that was with him also walked towards my guests twice saying to them, "Come on cunts, lets go. I'll fucken smash you cunts."
After Kaine had calmed down he began to walk inside to his house, he turned to us and said, "You'd better not call the police about this, I'm telling you, the police had better not be called or you'll be fucken sorry!"
I was too scared of retribution to call the police that evening, however contacted the police about the incident today. As I fear persecution from this man if he is charged with the threats described above. I requested that the police to not attend the residence however note the incident in case further threats or violence occurs.
Later on in the evening I was disturbed by the occupants of No 8 yelling out things that I assume where directed at my partner and myself. I am unsure as to exactly what they said but I heard the words, "You cunts" used about 4 times. This was at about Sam Saturday morning.
I would like to note that this is a completely unprovoked attack and is causing me an immeasurable amount of stress and anxiety. I can no longer live in my house without being constantly fearful for my safety and that of my guests.
Last night, Sunday 4th February, in a separate incident the tenants disturbed the whole complex with a huge domestic dispute, in which the police attended the complex.
These types of incidents are all too common. Please help us! This is way too much to handle.
The reports from Ms Bradley described the emotional trauma she had experienced by reason of the behaviour of the tenant, Mr Gleeson and their visitors.
The police reports attached to the Commissioner’s application related to:
(a) A series of incident of 10 December 2005, 17 March 2006, 18 April 2006, 13 June 2005, 13 August 2006, 28 and 29 September 2006 in which it was alleged that drug dealing was occurring from the premises
(b) An incident of 14 November 2006 in which the police search the premises and found a quantity of cannabis for which Mr Gleeson was charged.
(c) An incident on 24 February 2006 in which the police attended the premises in response to a report that an unknown male was proposing to visit the premises and do violence to Mr Gleeson.
(d) An incident on 31 October 2005 when the tenant was allegedly overhead by a police officer talking about her “drug dealer, Mark”.
(e) An incident on 3 November and 11 November 2006 in which it was alleged that drug dealing with occurring from the premises. The report also indicates that Mr Gleeson was a known heroine user, including whilst he was in goal.
The matter was listed before the Tribunal on 16 March 2007. Ms Burgess appeared for the Commissioner and the tenant appeared in person. The Tribunal was concerned about the emotional state of the tenant and her capacity to fairly represent herself. The matter was adjourned to 23 March 2007 to permit the tenant to seek assistance from Welfare Rights and Legal Centre.
On 23 March 2007 Mr Alati from Welfare Rights and Legal Centre appeared with the tenant and Ms Burgess appeared for the Commissioner. At the request of the tenants representative the matter was adjourned to 5 April 2007 for directions.
On 5 April 2007 Mr Alati appeared for the tenant and Ms Burgess appeared for the Commissioner. The Tribunal made an order for the Commissioner to file and serve witness statements and submissions by 3 May 2007, the tenant to file and serve the same by 31 May 2007 and for any summons to the Australian Federal Police to be issued by 12 April 2007.
On 4 May 2007 the Commissioner filed and served his/her submissions and witness statements. The filed documents included:
(a) A letter from the tenant to the Commissioner in which she disclosed that she was on a methadone program. She said that “Mr Gleeson is the father of my children. We are no longer together. He has stayed for brief periods at my house but in not resident there”. She asserted that she had made every effort to control the behaviour of her visitors.
(b) A File Note of a meeting between the tenant and the Commissioners staff on 7 December 2006 in which she said that Mr Gleeson was living at the house with her. She said he had no where else to live.
(c) Photographs of the premises and the neighbourhood.
(d) A statement from James Stuart dated 14 April 2007.
(e) A statement from Joanne Bradley dated 30 April 2007.
(f) A letter from Joanne Bradley to the body corporate managers dated 27 September 2007.
(g) A letter from Joanne Bradley to the body corporate managers dated 5 February 2007.
(h) An email from Joanne Bradley to the Commissioner dated 20 march 2007 concerning events of 18 March 2007 and various other incidents.
(i) An email from Joanne Bradley to the Commissioner dated 6 September 2006.
(j) An email from Joanne Bradley of 4 December 2006.
(k) A statement from Frank Corujo dated 3 May 2007 concerning the alleged drug dealing from the premises and the traffic congestion caused by those visiting the premises.
(l) A statement by Peter Bradley, father of Joanne Bradley.
(m) An undated statement from Yvonne Perriman of the Commissioners office.
The statement from Joanne Bradley of 30 April 2007 reads as follows:
My name is Joanne Bradley; I am the owner of the premises at 7/2-6 Merri Place, Conder. I am aware that the information about to give is true to the best of my knowledge. I make this statement knowing that it may be used in the Residential Tenancies Tribunal. I am willing to affirm my statement.
I have been the owner of my premises since June 2006 and have resided in the premises since then. James Stuart resided in my property from June 2006 up until recently.
I first introduced myself to Kylee and her younger brother within the first week I moved into my place. I was just being polite. I formed the opinion that she and her brother were nice people.
Shortly after moving into the property I required the use of a hammer and went to No. 8 to see if the person there could lend me one. I knocked on the screen door to No. 8, the wooden door was open and I was able to see into the premises. 1 saw what I know to be a bong sitting on a table approximately 4 meters away, the bong had smoke coming from it. I also noticed a small child about 3 years old near the table. I spoke to a person I know to be Kylee's brother who then lent me a hammer.
Around this same time I began to notice what seemed to be an unusually large amount of vehicles and motorbikes, frequenting the address of No 8. The vehicles would only be there for a short time, on most occasions about 5 minutes at the most.
Around this same time I also began to hear frequent fights, including yelling and swearing. I could hear a female voice that I know as Kylee Allan and a male voice that I know to be Kaine Gleeson. I informed Housing ACT of what I heard and saw.
These kinds of incidents have occurred regularly since I moved in, increasing in intensity, and still continue, the last incident being only two nights ago. I have contacted the police on numerous occasions about a number of incidents at No. 8. The police also seem to be at the property frequently for reasons unknown to me.
From sitting in my courtyard I have witnessed people approach No 8 and stand at their front door. I have witnessed them get out money from their wallets and hand the money through the screen door and have seen a package being handed back to them before them walking off. On one occasion on a Friday evening (I believe it was one of the football grand final nights) I was in the courtyard of my premises when a car pulled up with two young adult males in it. They left the vehicle and saw myself and my friend looking at them and said to us, "We're getting some weed, yo". They then entered No 8 for approximately 2 minutes before returning to their vehicle and driving off. I reported this vehicle and its registration details to crime stoppers.
On another occasion when I have spoken to Kylee after we had caught the bus home together of an afternoon and I could smell very strongly the smell of marijuana coming from her bag.
On other occasions when I have been speaking to Kylee out the front of our residence people have approached us as asked Kylee, "Do you have any?" Kylee has responded to these people by saying, "Kaine's not here at the moment. Come back later"
I have had property damaged by the occupants of No 8 and their friends. This damage was reported to the police, however charges were not laid.Saturday 29th July 2006.The incident involved my alarm box with strobe light being ripped out of my roof, (I was home at the time and saw Kaine Gleeson and some other men out the front of my property). I assumed that they were working on a car and needed more space and that was why they were in my driveway (there was a car parked across both of our driveways). I continually heard noises out the front up jumped up from to couch to look out my window to see what was happening. On these occasions I saw that they were in fact working on a car. At about 1 am that morning I was awoken to more noises outside my window, and I looked out and saw a couple of the men still standing around. I wasn't sure what the noise was, but I assumed it was just them working on the cars. While was unsure and too scared to investigate and to go out and say anything as they were a group of males and it was just myself at home. When my partner returned home and asked them about it the next day the male threatened my partner with violence. (See details at Attachment A).
When I was driving into my house on Thursday 28 September 2006 Kaine Gleeson was also arriving with his friends. My partner James left the car to open the garage for me and Kaine came over to him and was swearing at him and trying to 'fight1 him. I hopped out of the car and tried to calm Kaine down (he still had a bottle of alcohol in his hand and was obviously drunk) and James went inside the house and got his phone.
The man from No 8 continued to swear and verbally abuse me, saying that everything was fine until we moved in and now we were trying to turn everyone against them and that we'd better watch out.
Kaine’s' friends were laughing while this was happening and after speaking to him for about 15 minutes and telling him that the problem is the drug dealing and the dramas caused he then returned to his house while still yelling things out at us with his friends. (See details at Attachment B)
My partner, our guests and I have also been threatened (See details at Attachment C).
I had friends come over to my house on the evening of 2 February 2007. My partner at the time was out the front of my residence assisting them to change the tyre. I then went out the front and saw that Kaine Gleeson and an unknown male (who also resides at No. 8) were standing near my partner. Kaine had in his hand a baseball bat and was holding in a manner as though he was about the swing it. I approached them and asked what the problem was and Kaine started yelling about the police coming over to his house and then said in an aggressive manner, "You don't understand, when my dealer finds out who tipped the cops of about us, it's not going to be worth living in Canberra anymore - your houses will be burnt down - you don't understand how serious this is! You're lives won't be worth living." The other man that was with Kaine at this time was saying to him, "Come on, let's just smash these c**ts." The men continued to swear at us and make threats, and on a few occasions taking steps forward holding the bat, trying to scare us as we attempted to calm them down. This lasted for approximately 20 minutes with myself negotiating with him to put the weapon down. Kaine eventually threw the bat away and his young son who was also outside with them went and picked the bat up and began to play with it. My partner continued to say to him that we didn't want any trouble, however Kaine continued to verbally abuse and threaten us.
The man that was with him also walked towards my guests twice saying to them, "Come on c**ts, lets go. I'll f**ken smash you c**ts." After Kaine had calmed down he began to walk inside to his house, he turned to us and said, "You'd better not call the police about this, I'm telling you, the police had better not be called or you'll be f**ken sorry!" I was too scared of retribution to call the police for attendance, however I contacted them after and reported the incident.
I have felt fearful for my personal safety very often when I return to my home as there are frequently men hanging around the front of my property (these people usually have friends that have gone inside Number 8 and they will wait out the front for them to return). These people often stare at me as I enter my property and I feel fearful that I will be robbed or assaulted, as some of them are very scary looking. (Attachment D)
In the beginning of March 2007 Kylee approached me when I was sitting in my courtyard with a friend. Kylee was crying and apologised to me, asking if she could talk to me for a moment. My friend then said to me that she was going and she then left. On this occasion Kylee stated to me, among other things, that she is only dealing drugs to survive as she has so many expenses, including having to pay full rent because of Kaine residing at the property. Kylee stated to me that Kaine and his friend had been residing at the property and won't pay her any money or help out. (See details at Attachment E). The friend that Kylee stated was residing there was the same man who threatened my partner, our guests and myself on the night of 2 February 2007.
I have had guests leave my house because of the disturbances next door and have had friends refuse to come over as they have said that they don't want to subject their children to the language and the behaviour of my neighbours.
I have had many anxiety attacks because of the incidents involving No 8, and have had to cancel work shifts because of being unable to sleep due to the stress caused by No 8's behaviour. I have increasingly become depressed about the situation and looked into selling my property, which would result in great financial loss to myself.
On occasion I have been unable to get to my driveway because of cars visiting No 8 parked inappropriately on the shared driveway. I have also been verbally abused when asking people to move their cars from my driveway. (See details at Attachment F).
This last weekend included disturbances on Friday, Saturday and Sunday night. The police attended on both Friday and Saturday night.
I am unable to take my rubbish out to the complex hopper at night, as I fear I will become stuck in the cross fire of a fight between the tenants. I also feel uncomfortable sitting in my own courtyard, as it is in direct proximity to No 8.
I am unable to invite people to my house and guarantee their safety. This fear has been confirmed to be valid after my guests were threatened by the tenant at No. 8. I have also on occasion been forced to remain inside my property for periods of up to an hour when I have needed to leave to property, but have been unable to do so as arguments were taking place out the front of No 8.
On one occasion on a Saturday morning a young girl (teenager) was wondering around the complex with no shoes on. I asked the girl if she was all right and she stated that she had slept outside as Kylee had threatened her and kicked her out of the house.8. She said that her belongings where inside No.8 however she was unable to get them or Kylee would 'go off at her. I allowed this girl to use my toilet and made her a cup of tea before offering her a lift home. She refused and I left for work. (Attachment G)
The statement from James Stuart is in very similar term. It is apparent that the two statements were complied by the one author and adopted by the other person.
The matter was listed before the Tribunal on 28 May 2007. Ms Knox, solicitor from the ACT Government Solicitors Office appeared for the Commissioner and Mr Alati from Welfare Rights and Legal Centre appeared for the tenant. Mr Alati took issue with the later service of the Commissioners statements and submissions and sought further time to file and serve a response. The matter was adjourned to 18 June 2007 with further directions for the filing and serving of statements and submissions.
On 4 June 2007 the Commissioner’s representatives filed a statement from Mr Greg Lee. Mr Lee’s statement spoke of the frequency of visitors to the tenant’s premises and his believe that drug dealing was occurring. The statement also speaks of the fights and swearing occurring on the premises.
On 5 June 2007 the tenant’s advisors filed submissions. The submissions are in the nature of a critique of the various statements filed by the Commissioner. Other than general denials the submissions do not purport to introduce any new evidence.
On 18 June 2007 the Commissioner filed a copy of diary entries from Joanne Bradley.
The matter came on for hearing on 18 June 2007. Mr Alati appeared for the tenant and Mr Sharwood of counsel appeared for the Commissioner.
Documents were produced under summons from the AFP. The parties had previously inspected them. Neither party raised any objection to the Tribunal viewing anything in the summons material, although both parties reserved the right to make submissions on the weight to be attached to these documents. The summons material included the police documents which were annexed to the Commissioner’s original application. In addition there were the following documents:
(a) An incident on 4 February 2007 in which the tenant is alleged to have been shouting at someone about “dirty needles”
(b) An incident of domestic violence on 25 February 2007 in which the tenant rang the police complaining that she was having problems in forcing Mr Gleeson to leave the property. The report states that the tenant was hysterical.
(c) An incident of domestic violence on 27 April 2007 in which Mr Gleeson is alleged to have assaulted the tenant.
(d) An incident on 3 February 2007 when the tenant rang the police and was reported to be screaming something about Mr Gleeson.
(e) An incident of 5 January 2007 in which the tenant phoned the police to complain that Mr Gleeson assaulted her.
(f) An incident of 10 October 2006 in which the tenant rang an emergency number and complained that she had been assaulted. The police attended and spoke with Mr Gleeson. The constables reported the smell of cannabis in the premises.
On 18 June 2007 Joanne Bradley gave evidence and was cross examined. She gave evidence in terms of her statement. She said that Mr Gleeson was present at the house every day and often she saw his car still at the premises in the morning.
Ms Bradley expressed the level of her fear of Mr Gleeson and to a lesser extent, the tenant. She described the emotional trauma she had experienced over the last two years due to the behaviour of Mr Gleeson, the tenant and their visitors.
Her father, Peter Bradley testified concerning the fears his daughter had expressed to him. He said that on one occasion when he was visiting his daughter, he observed up to 12 cars pull up at the tenant’s case and the occupants pay a short visit inside the tenants house. Mr Bradley is himself a police officer and expressed the view that these visitors were buying drugs.
Mr Stuart gave evidence in terms of his statement and was cross examined.
Mr Lee gave evidence in terms of the his statement. He is a resident of the complex and is also a police officer. He testified seeing 10-20 cars visit the tenants premises over a weekend. He described the same pattern of the occupants of the cars paying a brief visit to the tenants premises.
The tenant gave evidence and was cross examined. She admitted to being a heroine addict but was endeavouring t break the habit via a methadone program.
The tenant said that Mr Gleeson only visits the premises to care for the children whilst she attends the methadone clinic. He is there every day.
The tenant said that she had tried to keep Mr Gleeson away from the premises because she realised that she was facing eviction largely as a consequence of his behaviour. She was concerned about the prospect of losing the children. The tenant said that Mr Gleeson was not responsive to her requests to stay away from the premises. Notwithstanding this, the tenant also said that she relied upon Mr Gleeson coming to the house each day to care for the children whilst she went to the methadone clinic. These two statements are difficult to reconcile.
The Tribunal accepted the evidence of each of the witnesses for the Commissioner. The Tribunal accepted the evidence of Ms Bradley concerning the trauma she had suffered at the hands of Mr Gleeson which she associated with the presence of the tenant in the house. Ms Bradley said that she would be full of anxiety as long as the tenant lived next door.
At the end of the evidence the Tribunal indicated that it was satisfied that Mr Gleeson had committed a range of serious assaults at the premises and had sold drugs from the premises. The Tribunal indicated that the behaviour of the tenant and Mr Gleeson constituted a breach of prescribed term 70 of the Act :
70. The tenant shall not:
(a) use the premises, or permit them to be used, for an illegal purpose to the detriment of the lessor’s interest in the premises;
(b) cause or permit nuisance; or
(c) interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises.
In so finding the Tribunal noted the effect of prescribed term 73 which makes the tenant personally responsible for the conduct of Mr Gleeson and other visitors to the premises.
73. The tenant is personally responsible for the actions or omissions of visitors, guests or other persons on the premises if:
(a) the action or omission would if performed by the tenant have constituted a breach of this Tenancy Agreement; and
(b) the person is on the premises with the permission of the tenant.
Section 48 of the Act regulates the Tribunal’s power to order the termination of a tenancy:
48(1) On application by a lessor, the Tribunal may make a termination and possession order if satisfied that—
(a) the tenant has breached the standard residential tenancy terms (other than by failing to pay rent due and payable);
(b) the lessor has served a termination notice on the tenant in the prescribed form based on that breach;
(c) the tenant did not vacate the premises in accordance with the notice;
(d) the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the Tribunal; and
(e) the breach justifies the termination of the tenancy.
(2) The Tribunal may, if satisfied that it is appropriate and just to do so in relation to an application referred to in subsection (1)—
(a) refuse to make a termination and possession order where—
(i) the tenant has remedied the relevant breach; or
(ii) the tenant undertakes to remedy the breach within a reasonable specified period and is reasonably likely to do so; or
(b) make a termination and possession order but suspend it for a period of no more than 3 weeks if satisfied that—
(i) were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii) that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period.
The Tribunal was satisfied that the requirements of section 48(1)(a)-(e) had been established.
The breaches by the tenant (including those of Mr Gleeson for which the tenant is responsible) were serious and extended over nearly two years. The breaches had caused considerable trauma to Ms Bradley and to a lesser extent to the other residents of the strata complex. It is hard to image a more serious incident then that when Mr Gleeson threatened Ms Bradley and Mr Stuart with the baseball bat. The Tribunal was satisfied that the breaches justify the termination of the lease per section 48(1)(e). This finding was announced to the parties at the end of the evidence.
The Tribunal raised with the parties the effect of the decision in Davenport v Commissioner for Housing and the Residential Tenancies Tribunal [2007] ACTSC 30. In a case in which the Tribunal finds as a fact that the terms of section 48(1) are satisfied, the effect of the decision in Davenport appears to deny the Tribunal any discretion not to evict the tenant except where section 48(2) applies. Section 48(2) provides that the Tribunal may refuse to make the order termination the tenancy if the tenant has remedied the breach or undertakes to remedy the breach and is reasonably likely to do so.
The Supreme Court specifically held that the Tribunal had no power to make a conditional termination order in cases other than rent default cases.
In the present case it is not possible to remedy the breach. The damage has been done to Mr Bradley and she cannot live next to the tenant. Some breaches are of an ongoing nature and are thus capable of being remedied eg rent arrears, a failure to carry out repairs, a failure to permit access for an inspection etc. Other breaches are complete in time in the past, and it is simply not possible to remedy them eg. an assault, setting fire to the premises etc.
If the Tribunal were disposed to accept some form of undertaking from the tenant not to engage in any of the disruptive conduct in the future, any order made embodying that undertaking would be in the nature of a conditional termination order which the Tribunal has no power to make. There is a difference between remedying a past breach and not perpetrating any future breaches. The later is the essence of the conditional termination order.
In the light of the facts as found by the Tribunal, the Tribunal informed the parties that it had no option but to terminate the tenancy. The remaining issue was the fixing of a date by which possession would need to be given.
The Tribunal then raised with the parties whether, in deference to the interest of the children, the Commissioner would consent to a transfer of the tenant to another property on the condition that the tenant took action to keep her location secret from Mr Gleeson and otherwise exclude him from attending the premises.
The Tribunal is well aware of the difficulties the tenant will face in finding other accommodation in the ACT. As a single mother on Centrelink benefits she will not be able to afford the rent in the private market. Further, it is most unlikely that any landlord in the private market will give a lease to a person on Centrelink who has been evicted from government housing.
If the tenant is unable to find suitable accommodation then the ACT Care and Protection Service is likely to take control of the children and remove them to foster care. This outcome is likely to cause the tenant great stress which may then have implications for her mental health and drug habit reform.
The Commissioner said a transfer would be considered.
The matter was adjourned to 28 June 2007 for a date to be fixed for possession of the premises. At the same time the Commissioner was to advice whether the proposed transfer could be effected.
On 28 June 2007 Mr Alati appeared with the tenant. Also present to support the tenant was Amanda Burton from the ACT Care and Protection Service which is part of the Department of Disability, Housing and Community Services. The Commissioner’s office also forms part of this same department. Thus the department was represented on both sides of the dispute.
Ms Knox of the ACT Government Solicitors Office appeared for the Commissioner.
Ms Knox advised that the Commissioner had determined that no transfer would be offered to the tenant and that an order for possession was being pressed.
Mr Alati and Ms Burton indicated the potentially serious implication for the tenant and her children if the order for possession were made. Ms Burton indicated that the children would be taken from the tenant. Mr Burton told the Tribunal that if the Commissioner transferred the tenant to a location not to be disclosed to Mr Gleeson, that access arrangements between Mr Gleeson and the children could be arranged away from the premises.
The Tribunal urged the Commissioner’s representatives to reconsider its position, but to no effect. The Commissioner was resolute that the tenant be evicted notwithstanding whatever ramification may flow to the children or to the tenant from that course of action..
The Tribunal has no power to compel the Commissioner to transfer the tenant.
In the light of the Commissioners attitude the Tribunal had no option but to fix a date for possession. The matter was adjourned for that purpose.
The date for possession is to be 8 August 2007, this being the maximum period for which the order can be suspended pursuant to section 48(2)(b).
The tenant is to have all rent arrears paid to the date of vacant possession.
Comment:
The tenant is lawfully responsible for the actions of Mr Gleeson and his friends. She probably knowingly participated in some of the drug dealings. But the tenant herself did not perpetrate the assaults and other aggressive behaviour which has upset Ms Bradley and other neighbours. This was Mr Gleeson’s doing.
The tenant did disturb the neighbours by screaming when being subjected to domestic violence.
The Tribunal formed the view that the tenant was herself a victim of Mr Gleeson’s violence. She proved emotionally unable to detach herself from him as the father of her children. Her failure to detach herself from him and exclude him from the premises has brought the tenant to her present position in which is now in serious jeopardy of being homeless and of losing her children.
If the tenant had been relocated to another premise, not to be disclosed to Mr Gleeson, then the interests of her children, Ms Bradley, the tenant and the other neighbours would have been served. However if the tenants is unhoused then the Department of Disabilities, Housing and Community Services will inherent the problems and financial costs flowing from the fragmentation of the family unit and the trauma to the children and the tenant. This may include the cost of foster care, the cost of refuge accommodation for the tenant, the costs to the medical and legal system if the tenant re-engages in heroine abuse.
Merely evicting the tenant may solve the Commissioner’s immediate need to relieve the stress on Ms Bradley, which is important. But the eviction may cause the ACT government as a whole, more problems then it solves.
The Tribunal put these view to the Commissioner and urged the Commissioner to take a “whole of government approach” in reconsidering the transfer option. The Commissioner was resolute in demanding that the eviction proceed and that no transfer would be offered.
The Tribunal is of the view that the Commissioner has certain social obligations when discharging its public housing functions and that the refusal of the Commissioner to countenance the transfer option in the present case is inconsistent with those social obligations.
The public housing operations of the Commissioner for Housing on behalf of the ACT derive from the Housing Assistance Act 1987. The objects of this Act are set out in section 3A and make in abundantly clear that the statutory purpose of the Act is to provide secure, affordable housing to people on low and moderate incomes. Section 11 Housing Assistance Act 1987 provide for the implementation of the Commonwealth-State Housing Agreement through which a large part of the ACT funding for housing is derived. The Commonwealth-Statement Housing Agreement is regularly amended but its constant historical focus is the provision of secure and affordable housing for people on low and moderate incomes. In this sense the objects of the HousingAssistance Act 1987 are consistent with those of the CSHA.
Secure and affordable housing for people and families on low incomes serves the interests of these people as well as serving the interests of the community generally. At its most basic, there is no public interest in having hordes of dispossessed low income families in society. Such circumstances are the breeding ground for crime and other anti-social conduct and the perpetuation of social disadvantage.
More relevantly government tenants are people with human rights, which the Commissioner is obliged to respect.
In relation to the potential threat to the tenant’s children and to her role as their mother, section 11 Human Rights Act 2004 is to the point:
(1) The family is the natural and basic group unit of society and is entitled to be protected by society.
(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.
See also clause 23.1 and 24.1 of the United Nation International Covenant on Civil and Political Rights which forms schedule 2 Human Rights and Equal Opportunities Act 1986, to the same effect. See also Principle 4 of the United Nations Declaration of the Rights of the Child which forms Schedule 3 of the Human Rights and Equal Opportunities Act 1986 which provides that a child shall have the right to adequate housing.
It is to be hoped that the Commissioner will reconsider its attitude to the tenant prior to 8 August 2007 and come to some sensible arrangement for a transfer.
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