COMMISSIONER FOR SOCIAL HOUSING IN THE ACT & COTSELL (Residential Tenancies) - [2012] ACAT 42

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING IN THE ACT & COTSELL (Residential Tenancies) [2012] ACAT 42

AA 11/26 and AA11/23
(RT 11/126)

Catchwords: APPEAL – residential tenancies dispute – termination and possession order - occupancy agreement – terms of order incorrect – procedure to be adopted by appeal tribunal - orders to finalise appeal
Legislation: ACT Civil and Administrative Tribunal Act 2008, Part 8, ss. 25, 82
ACT Civil and Administrative Tribunal Procedure Rules 2009
(No 2) Part 7, r. 13, 21

Tribunal: Ms L. Crebbin, General President
Mr A. Anforth, Senior Member
Ms J. Lennard, Senior Member

Date of Orders: 25 June 2012
Date of Reasons for Decision: 25 June 2012

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )
AA 11/ 26
(RT 11/ 126)

BETWEEN:
COMMISSIONER FOR SOCIAL
HOUSING IN THE ACT
Appellant

AND:
JOSEPHINE COTSELL
Respondent

TRIBUNAL:Ms L. Crebbin, General President
Mr A. Anforth, Senior Member
Ms J. Lennard, Senior Member

DATE:25 June 2012
DIRECTIONS

The appellant is to file a statement setting out:
(i)the date he says the agreement should terminate;
(ii)the amount of arrears outstanding;
(iii)the occupancy fee currently paid by the respondent, and;
(iv)an approximation of the amount of arrears as at the date of the proposed termination, assuming that the respondent continues to pay the occupancy fee to that date;
by close of business on 6 July 2012.
Instead of the statement referred to in direction 1 above, the appellant can file and serve a draft amended order by close of business on 6 July 2012.
The respondent is to file any objection to the content of the appellant’s statement or the content of the terms of the draft amended order by close of business on 13 July 2012.
………………………………..
Ms L. Crebbin, General President
for and on behalf of the Tribunal

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )
AA 11/ 23
(RT 11/ 126)

BETWEEN:JOSEPHINE COTSELL
Appellant

AND:COMMISSIONER FOR SOCIAL
HOUSING IN THE ACT

Respondent

TRIBUNAL:Ms L. Crebbin, General President
Mr A. Anforth, Senior Member
Ms J. Lennard, Senior Member

DATE:25 June 2012
DIRECTIONS
The appellant is to file and serve any amended application for appeal, or in the alternative, advise the Tribunal if appeal AA11/23 is to be withdrawn, by close of business on 13 July 2012.

………………………………..
Ms L. Crebbin
General President
For and on behalf of the Tribunal

REASONS FOR DECISION

On 24 April 2012 the appeal tribunal found that a termination and possession order (the order) made by an original tribunal on 25 July 2011 was incorrect because the order referred to the agreement between the appellant and the respondent as being a residential tenancies agreement when the agreement should have been characterised as an occupancy agreement.
The appeal tribunal did not make orders disposing of the appeal but rather, having noted that the order would need to be amended, asked the parties to make submissions about how the order should be corrected.
The appellant Commissioner for Social Housing submitted that because the appeal tribunal had dealt with the application for appeal as a review, it follows that the proper approach of the appeal tribunal should be to set aside the order of the original tribunal and refer the matter back to the original decision maker to be dealt with according to law. We assume this proposition was put on the basis that that is an approach one might usually expect an appellate court to adopt when reviewing an order of a lower court.
The respondent agreed with this aspect of the appellant’s submission. The appeal tribunal does not.
Part 8 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) gives the Tribunal broad powers relating to appeals. The Act, in section 82, says that an appeal tribunal may choose to deal with an application as a new application or as a review. The Act says nothing more about how appeals should proceed, or about what orders should be made to dispose of an appeal once heard, whether as a review or as a new application.
Section 25 of the ACAT Act provides that the tribunal may make rules in relation to its practice and procedure. Section 25 (2) requires the tribunal to consider, inter alia, the requirement for procedures to be as simple, quick, inexpensive and informal as is consistent with achieving justice.
In keeping with section 25 (2) of the ACAT Act, the Tribunal has made rules about appeals that allow for flexibility. Part 7 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules) provides a set of rules that allow an appeal tribunal to tailor its approach to an appeal to meet the requirements of the individual case. In particular, rule 21 provides that an appeal tribunal:
(a) has all the powers and duties of the tribunal that made the order
appealed from; and
(b) may draw inferences of fact; and
(c) may receive further evidence about questions of fact, either
orally in a hearing, by written statement or in another way; and
(d) may make an order confirming, amending or setting aside the
order of the tribunal appealed from; and
(e) may make any other order it considers appropriate.
Rule 21 does not distinguish between the powers of and procedures for an appeal tribunal that is reviewing an original order and the powers of and procedures for an appeal tribunal that is dealing with an appeal as a new application. Rule 21 permits an appeal tribunal to adopt the approach that best meets the objectives of the Tribunal, in the circumstances of the particular case rather than an approach dictated by custom applicable to court proceedings. The discretions contained in rule 21 would serve no useful purpose otherwise.
In this case, having decided that the original tribunal incorrectly described the agreement between the appellant and the respondent as a residential tenancies agreement rather than an occupancy agreement, there is no need for a re-hearing. There is a need to amend the original order by changing the language to that applicable to an occupancy agreement (e.g. ‘occupant’ rather than ‘tenant’), setting a new date of termination of the agreement and amending the amount of arrears so that it states the amount currently outstanding (assuming that the respondent hasn’t paid the arrears in full in the meanwhile). These are fairly straight forward matters that do not require the original tribunal to sit and conduct a re-hearing.
Rule 21 contemplates that the appeal tribunal can receive further evidence about a question of fact - in this case the current amount of arrears – and amend an order. This is what we propose to do. It is a course clearly open under rule 21 and the course most consistent with the objectives of the ACAT Act and the Rules.
The appellant is to file a statement setting out:
(i)the date he says the agreement should terminate;
(ii)the amount of arrears outstanding;
(iii) the occupancy fee currently paid by the respondent, and;
(iii)an approximation of the amount of arrears as at the date of the proposed termination, assuming that the respondent continues to pay the occupancy fee to that date;
by close of business on 6 July 2012. Alternatively, the appellant can file and serve a draft amended order.
The respondent is to file any objection to the content of the appellant’s statement by close of business on 13 July 2012. The appeal tribunal will consider what amended order should issue after considering the documents.
Appeal AA 11/23 was ‘parked’ while appeal 11/26 was considered. The grounds detailed in the amended application for appeal dated 5 September 2011 in that appeal are predicated on the basis that the original order related to a residential tenancies agreement and that the original tribunal could have exercised a discretion to make a conditional termination and possession order under section 49 of the Residential Tenancies Act 1997. Those grounds cannot be sustained in light of the findings of the tribunal in this appeal. The respondent is to file and serve any amended application for appeal complying with rule 13 of the ACAT Rules, or in the alternative, advise the tribunal if appeal AA11/23 is to be withdrawn, by close of business on 13 July 2012. It is not necessary to re-list AA11/23 for the purpose of making these directions at this stage. Further orders dealing with AA11/23 will be considered after the respondent takes the steps directed in this paragraph.

………………………………..
Ms L. Crebbin
General President
For and on behalf of the Tribunal