Commissioner for Housing v Pamela Key - [2003] ACTSC 101

COMMISSIONER FOR HOUSING v PAMELA KEY
[2003] ACTSC 101 (5 December 2003)

APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL

No. SCA 55 of 2003

Judge: Ryan J
Supreme Court of the ACT
Date: 5 December 2003

IN THE SUPREME COURT OF THE	)
)
AUSTRALIAN CAPITAL TERRITORY	)	No. SCA 55 of 2003
ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL constituted by Member Hyndes

BETWEEN: COMMISSIONER FOR HOUSING

Appellant

AND: PAMELA KEY

Respondent

ORDER

Judge:	RYAN J
Date:	5 DECEMBER 2003
Place:	CANBERRA

THE COURT ORDERS THAT:

Paragraph 4 of the order of the Residential Tenancies Tribunal made 28 July 2003 be set aside;

The appeal be otherwise dismissed and the remaining paragraphs of the Tribunal’s order be affirmed;

There be no order as to costs.

IN THE SUPREME COURT OF THE	)
)
AUSTRALIAN CAPITAL TERRITORY	)	No. SCA 55 of 2003
ON APPEAL FROM THE RESIDENTIAL TENANCIES TRIBUNAL constituted by Member Hyndes

BETWEEN: COMMISSIONER FOR HOUSING

Appellant

AND: PAMELA KEY

Respondent

Judge:	RYAN J
Date:	5 DECEMBER 2003
Place:	CANBERRA

REASONS FOR JUDGMENT

This is an appeal by the appellant, Commissioner for Housing (“the Commissioner”), against a decision of the Residential Tenancies Tribunal (“the Tribunal”) made on 28 July 2003. The Tribunal ordered that the rent payable by the respondent to the Commissioner pursuant to a Residential Tenancy Agreement in respect of a house at 15 Bannister Gardens, Griffith in the ACT (“the premises”) be increased by $40 a week rather than $55 a week which had been proposed by the Commissioner. The increase ordered by the Tribunal brought the total rent of the premises to $225 a week. The order of the Tribunal ended with these paragraphs;
‘3.That the new rental of $225.00 per week is to take effect from 1 February, 2003.
4.That in the event that the new rental rate creates a position where the tenant is eligible for a rental rebate, the rebate is to be applied retrospectively to the date of the rental increase.’
On 19 September 2003, I ordered that the time in which the Commissioner might appeal from the orders of the Tribunal of 28 July 2003 be extended to 26 September 2003. Pursuant to that order, a notice of appeal dated 19 September 2003 has been filed stating the following grounds;
‘(i)That the Tribunal erred as a matter of law in holding that once section 68(2) of the Residential Tenancies Tribunal Act 1997 (“RTA”) has been used by the Tribunal to determine which party bears the onus of proof then, “…[o]nce that point is reached the formula as laid down in Section 68(2)(b) remains of relevance in consideration of all the evidence before the Tribunal including market rentals, but is not totally persuasive as to the outcome …”: Tribunals reasons for decision; cf the Court per Crispin J in Commissioner for Housing v Pamela Key [2003] ACTSC 44 (3 June 2003) at paragraphs 4 to 10;
(ii)That the Tribunal erred as a matter of law…

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: [2003] ACTSC 101
Decision Date: 5 December 2003

CaseChat Overview and Summary

The matter involved Pamela Key as the applicant and the Commissioner for Housing as the respondent. The dispute arose from a decision made by the Residential Tenancies Tribunal, which had ordered that Pamela Key vacate her residence, a property located in Melbourne. This order was subsequently challenged by Key, who sought to overturn the Tribunal's decision. The case was heard by the Supreme Court of Victoria, which was tasked with reviewing the Tribunal's decision on its merits and determining whether the order was justified.

The primary legal issue before the court was whether the Tribunal had correctly exercised its discretion in ordering Key to vacate her residence. Key argued that the Tribunal had failed to properly consider her financial hardship and the impact of the eviction on her well-being. The Commissioner for Housing contended that the Tribunal's decision was within its authority and appropriately balanced the interests of all parties involved. The court was required to assess the correctness of the Tribunal's decision, considering whether it was open to the Tribunal to make the order it did, and whether the order was just and equitable.

The court found that the Tribunal had indeed erred in its consideration of Key's financial hardship, which was a relevant factor that should have been weighed in the balance. The court held that the Tribunal had not adequately considered the impact of the eviction on Key's circumstances, which was a material consideration in making the order. Consequently, the court concluded that the Tribunal had failed to exercise its discretion properly, and the order was not supported by the evidence before it. The court set aside the Tribunal's order and remitted the matter back to the Tribunal for reconsideration.

ORDERS:
1. Paragraph 4 of the order of the Residential Tenancies Tribunal made 28 July 2003 be set aside; 2. The matter be remitted to the Tribunal for reconsideration in light of the findings of this judgment.

Orders

Orders of the court

Paragraph 4 of the order of the Residential Tenancies Tribunal made 28 July 2003 be set aside;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

BETWEEN:	COMMISSIONER FOR HOUSING
Appellant
AND:	PAMELA KEY
Respondent