Commissioner for Social Housing in the Act v Pye (Residential Tenancies)
[2009] ACAT 48
•23 October 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING IN THE ACT v PYE (Residential Tenancies) [2009] ACAT 48
RT 560 of 2009
Catchwords: RESIDENTIAL TENANCIES – Notice to Remedy – Procedure – specific performance orders – adjournment – confidential evidence – adversarial approach
Legislation:ACT Civil and Administrative Tribunal Act 2008 (ACT), s 6(h), s 7, s 24, s 38, s 39
Residential Tenancies Act 1997 (ACT) s 83(a), s 83(b)
ACT Civil and Administrative Tribunal Directions 2009 (ACT) s 45 and s 46
Cases:Britten v ACT Housing [2004] ACTRTT 8
Xia v Wang & Bian (Residential Tenancies) [2009] ACAT 21
Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208
APA Life Insurance Ltd v Charles [1981] 2 NSWLR 352
Wright v Victorian Civil and Administrative Tribunal [2001] VSC 35
Scott v Handley (1999) 58 ALD 373
Owners Corporation SP51652 v Consumer Trader and Tenancy Tribunal & Anor [2003] NSWSC 739
Dick v Pillar (1943) 1 KB 497
Wannal Pty Ltd v Jericho Nominees Pty Ltd (1983) 2 SR(WA) 297 Queensland v JL Holdings Pty Ltd [1997] HCA 1
Allen Taylor & Co Pty Ltd v Drew unreported NSWCA (5 May 1982)
Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193
Bates v Port Stephens Holiday Park Pty Ltd [1996] NSWRT 208
Ex parte Herman; Re Mathieson (1960) 78 WN NSW 6
Sullivan v Department of Transport (1978) 20 ALR 323
NSW Department of Housing v Szilagy (1997) NSWRT 182
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Galea v Galea (1990) 19 NSWLR 263
Malaxetxebarria v The State of Queensland[2007] QCA 132
Nipperess v Military Rehabiliation and Compensation Commission[2006] FCA 943.
Tribunal: Mr A Anforth Senior Member
Date of Orders: 23 October 2009
Date of Reasons for Decision: 9 December 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 560 of 2009
BETWEEN:
THE COMMISSIONER FOR SOCIAL HOUSING IN THE ACT Applicant/Lessor
AND:
ASHTON PYE
Respondent/Tenant
Tribunal:Mr A Anforth Senior Member
Date: 23 October 2009
ORDER
1. That the matter is adjourned until Thursday the 10th day of December, 2009 at 10.00am.
2. That the Applicant is to file and serve by 6th November, 2009:
(a) statements from all witnesses relied upon;
(b) an application for a closed hearing in respect of any particular witness and the reasons for the application.
3. That the Respondent is to file and serve by 20th of November, 2009 on Mr Emerson-Elliott:
(a) statements of witnesses in reply;
(b) a response to the Applicant’s application for a closed hearing.
4. That Mr Emerson-Elliott undertakes not to disclose to the Respondent the content of the witness statements in respect of which a closed hearing is sought until further order of the Tribunal..
………..……………………………..
Ms L Crebbin
General President (ACAT)
For: Mr A Anforth (Senior Member)
REASONS FOR INTERIM DECISION
Overview of the dispute:
In this matter the Commissioner for Housing has taken action against the Tenant for the alleged conduct of the Tenant’s children aged 11, 10 and 6. The Tenant and the children live in […] Court (‘the Court’) which is a flat complex of some 62 units, all of which are owned and tenanted by the Commissioner.
The Tribunal made orders on 23 October 2009 adjourning the hearing and permitting the Commissioner to file and serve statements from further witnesses. The Tenant objected to the adjournment and the orders made and has sought a statement of reasons in relation to that decision.
The case raises the issue of when the Commissioner should be able to file with the Tribunal statements from witnesses who wish to remain anonymous to the Tenant for fear of retribution.
More particularly the case raises an issue concerning whether recourse to the Tribunal is appropriate in these community disputes unless and until less community development options have been tried. Recourse to the Tribunal is some times necessary, but in circumstances such as the present recourse to the Tribunal has the real potential to further exacerbate the tensions in the community by setting one resident against another in the litigious setting of the Tribunal.
The history of the dispute:
On 23 July 2007 the parties entered into a residential tenancy agreement in respect of a townhouse at […] Reid known as […] Court. The tenancy agreement was periodic from its inception and was in the Commissioner’s standard terms including the right of the Tenant to a rental rebate depending on the household income.
The premises is a two bedroom unit in which the Tenant lives with his children who are aged 11, 10 and 6. The other units in the Court are also owned and tenanted by the Commissioner.
On 16 July 2009 the Commissioner personally served the Tenant with a Notice to Remedy in which it was alleged that the children of the Tenant damaged cars and harassed other neighbouring residents. The Notice did not give further particulars including the date of the alleged breaches. The statement from Ms Hinchley, housing officer, at paragraph 13 below refers to two events that have post dated the Notice to Remedy but in neither case are the Tenant’s children explicitly identified as being involved. The statement from Ms Carlon at paragraph 14 filed by the Commissioner does not refer to any events post dated the Notice to Remedy and in fact the principal events about which complaints occurred in 2008.
On 23 July 2009 the Commissioner filed an application with the Tribunal seeking an order in the nature of specific performance of the tenancy agreement, namely that the Tenant comply with the terms the tenancy agreement. In a Statement of Particulars the Commissioner alleged that the Tenant had failed to comply with the Notice to Remedy although no particulars were given of any alleged breaches since the Notice to Remedy was served.
The matter was listed before the Tribunal on 10 August 2009. Mr Adkins appeared for the Commissioner and Mr Pye appeared in person.
10. On that occasion the Tribunal adjourned the matter for hearing on a date to be fixed by the Registrar and recommended to the Tenant that he seek advice and assistance of Welfare Rights and Legal Centre.
11. Procedural orders were made for the filing of particulars of breaches alleged by the Commissioner including statements from all witnesses relied upon and for the Tenant file his response and witness statements.
12. On 19 August 2009 the Commissioner filed and served the following:
(a) A statement from Ms Julie Hinchey who was the housing manager for the Tenant;
(b) Two photographs of a scratched car;
(c) A statement from Ms Carmen Carlon, another resident of the Court.
13. The statement from Ms Hinchey read:
This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness.
The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.
My full name is Julie Susan Hinchey. I am employed by the Department of Disability, Housing and Community Services. I have been employed by DHCS for 19 Months and have been the Housing Manager responsible for tenancies in Reid, ACT, for approximately 10 months.
In my role as Housing Manager for Reid I manage a number of tenancies, including …all DHCS free standing dwellings in Reid.
My duties as Housing Manager include, but not limited to, assisting tenants sustain their tenancies by complying with their tenancy agreements including mitigating debt, referring clients to support agencies as needed and investigating complaints involving breaches of tenancy agreements.
In relation to the matter before the Tribunal, Mr Pye signed a tenancy agreement for [the premises] on 23 July 2007. Prior to June this year our records indicate three formal complaints were lodged with HACT regarding the behaviour of the children from [the premises].
During June 2009 I received two formal complaints about the behaviour of the children at [the premises]. The complaints allege the children
• had "keyed" a tenant's car
• were jumping on the bonnet of a tenant's car
• had spray painted "swear words" on carports at [the] Court
• vandalise the playground, common areas and damage property at [the] Court
• breaking into storage units at [the] Court.One of the complainants requested anonymity as a previous complaint resulted in severe repercussions. This tenant stated she had been subjected to harassment and name calling from the children for some time and is fearful to go outside her property while the children were present.
On 15 July I spoke with an elderly tenant at [the] Court who stated she believed her many health problems were exacerbated by the stress caused by the children from [the premises] and [the other premises at the] Court who constantly harass her by knocking on her door, using foul language and damaging her property. This tenant stated she is fearful of leaving her property because she is "scared somebody is going to follow me". The tenant stated she cannot be sure the children will be at school during the day because "they don't go to school every single day." I am limited to the information I can provide to the Tribunal in this case because the tenant is fearful of being identified. Threats have been made against her in the past.
On 16 July 2009, while I was at [the] Court I was approached by two residents of the complex who stated the children from [the premises]
• light fires on the BBQ in the common area, burning leaves and paper
• bang on residents doors in the complex
• were seen running around the complex playing with fire extinguishers
• were witnessed jumping on the Domino's Pizza Delivery car.On 22-July 2009 while at [the] Court I saw a large number of catalogues strewn around the BBQ area that had been partially burned.
On 10 August 2009 I received a letter of support for a transfer application for one of the tenants at [the] Court. The letter stated the tenant and her 4 year old child were walking through the complex on the 26th June 2009 when the tenant was approached by a group of young people who attempted to block her path, pulled at her clothing and "began speaking in a very threatening manner to her" Again the tenant did not want to be identified as she is very fearful for her safety and that of her young children. The tenant identified the children as living at [the] Court.
Housing Managers Actions
On 3 July 2009 I telephoned Mr Pye to advise him of the complaints received at HACT regarding the behaviour of his children. I advised Mr Pye the complaints alleged his children were vandalising property at [the] Court, damaged cars at [the] Court and breaking into storage units at [the] Court. Mr Pye stated he would speak with his children regarding the allegations and watch them during the school holidays.
On 16 July 2009 I served a Notice to Remedy (NTR) on Mr Pye by handing him the notice. I advised Mr Pye the NTR related to the behaviour of his children residing at [the premises] and that the behaviour was interfering with the quiet enjoyment of other residents at the complex.
[The] Court is a housing complex consisting of 62 one and two bedroom units. Approximately one third of the tenancies belong to elderly residents, some have been residents for more than 20 years. A number of the tenants are from non-English speaking backgrounds and many tenants have mental health issues.
The tenants I have spoken to have stated the anti social behaviour of the children from [the premises] and [the other premises] becomes more apparent during school holidays and have expressed serious concerns for their quiet enjoyment and safety during these times.
From my dealings with the complaints I formed the view the more vulnerable tenants at the complex are harassed and are afraid to be identified for fear of retribution. The behaviour of the children involved becomes worse during the school holidays as the children have more free time and become bored. In my opinion the [the] Court …is not a healthy area for young children of this age group to spend their formative years. I believe the children are basically good kids but when the children of [the premises] and [the other premises] are forced together for extended periods the children display unacceptable behaviour which I believe will become more brazen as the children get older if not dealt with appropriately.
14. The statement from Ms Carlon read:
I have lived at [the] Court since 1983.
Over the past year I have witnessed the children from [the premises] and [the other premises] vandalising the playground, lighting fires and vandalising cars.
Last year while I was riding my pushbike these same children chased me and tried to grab me on my bike. I am too scared to ride my bike now.
Last year these children kept walking on the carport roof near my property and threw rubbish into my yard. When I asked them to stop they don’t take any notice and say ‘you don’t have the right to tell me what to do’. These children are very rude to me calling me names like ‘half wit’ and ‘mentally retarded’.
These same children continually break into the storage cupboards in the carports 62, 7 and 4. They vandalise the storage cupboard units by breaking the fibro walls of the cupboards.
One Sunday late June I witnessed these children running and jumping on the car bonnet of the car in carport 62.
This same day I witnessed the same children vandalising by scratching two cars in carports No. 4 and belonging to unit 2.
I understand that the information provided in this statement will be used at the Administrative and Appeals Tribunal.
I was instructed by my client to hand write this statement because I have intellectual disability.
15. The Tribunal file contains a document of some 12 pages headed ‘Social Research Society’ under the hand of Michael Patek. It has no relevance to this matter. There is then a character reference for the Tenant to this matter from Mr Patek who says that he is also a resident of the Court. The Tribunal has not studied this document in any detail.
16. On 9 September 2009 the Welfare Rights and Legal Centre notified the Tribunal that they would be acting for the Tenant.
17. The matter was listed for hearing on 8 October 2009.
18. On 2 October 2009 the Tenant filed his affidavit which read:
I, Ashton Pye of [the premises] in the Australian Capital Territory, make oath and say:
1. I am the Respondent/Tenant in these proceedings.2. I have read the statements of Julie Susan Hinchey and Carmen Carlon filed in these proceedings.
3. A number of accusations of bad behaviour by my children are contained in these statements. I will address each of these accusations in this affidavit.
Accusation that my children 'keyed' a tenant's car(s) (Statements of Ms Hinchey and Ms Carlon)
4. To the best of my knowledge my children were not involved in the incident. I have asked my children if they are aware of any such incident and have told me, and I verily believe, that children from NSW who were staying with the tenant of [another premises] were responsible for the scratch to the tenant's car.
Accusation that my children jumped on the bonnet of a tenant's car (Statements of Ms Hinchey and Ms Carlon)
5. I have no knowledge of this incident. I have questioned my children about the accusation and they have told me that they have no knowledge of such an incident either.
Accusation that my children spray-painted swear words on carports (Statement of Ms Hinchey)
6. I witnessed an incident during which a boy I know as 'Keith' from [another premises] spray-painted swear words as described. He had obtained a can of spray paint from a tenant who possesses cans of spray paint as he has a business painting house numbers on the curb side outside houses for a small fee. My children were not involved in the incident.
Accusation that my children vandalized the playground and lit fires in the area (Statements of Ms Hinchey and Ms Carlon)
7. I am aware that when the playground was open (it is currently closed) my children played in the area. On some occasions they used old sheets and cushions to make cubby-houses. This may have looked untidy while the children were playing but in my view it was normal play behaviour and the activity did not impact adversely on any other tenants.
8. I am aware of only one fire that was lit in the area. This was when a boy I know as 'Simon' (visiting [another unit]) stuffed newspaper into a toy car and set it alight. My children witnessed the incident but were not involved in the activity.
9. The playground at [the] Court has been untidy and derelict since I moved into my unit. Its condition is the same today as it was the day I moved in. I believe that it should be cleaned up and renovated.
Accusation that my children were seen banging on doors, running around the complex with fire extinguishers, and jumping on a 'Domino's Pizza Delivery car (statements of Ms Hinchey and Ms Carlon)
10. To the best of my knowledge my children have not been involved in any of these alleged incidents.
Accusation that my children were involved in an incident when Ms Carlon was chased and attempts were made to grab her while on her bicycle (Statement of Ms Carlon)
11. To the best of my knowledge my children have not been involved in any such incident. They have on occasion been shouted at by Ms Carlon, but I have told them to stay away from her as I believe that she is rude and erratic in her behaviour, and I do not want my children having anything to do with her.
Accusation that my children walked on carport roof, threw rubbish, and were rude to Ms Carlon (Statement of Ms Carlon)
12. To the best of my knowledge my children have not been involved in any such incident.
Accusation that my children have broken into the storage units at [the] Court (Statements of Ms Carlon and Ms Hinchey)
13. I am aware that my children and other children did at one stage use the storage units at [the] Court with their owners' permission as cubby-houses. As soon as I was aware that some tenants were unhappy with this activity I told my children not to use the storage units and they have not done so since then.
Accusation that my children were involved in an assault on a tenant walking through [the] Court with a four year old child on 26th June 2009 (Statement of Ms Hinchey).
14. I have no knowledge of any such incident involving my children. I note that the report in Ms Hinchey's statement does not indicate that my children were involved in any way in the incident.
Comment by Ms Hinchey that [the] Court not suitable for children (Statement of Ms Hinchey)
15. I agree completely with the assessment made by Ms Hinchey that [the] Court complex "is not a healthy area for young children of this age group to spend their formative years". In this regard I am currently seeking a priority transfer from [the] Court for my children's sake.
19. On 8 October 2009 Mr Leonard appeared for the Commissioner and Mr Emerson-Elliott, solicitor, appeared for the Respondent. Mr Leonard advised the Tribunal that there may be further witnesses to further breaches by the Tenant’s children but that these witnesses were reticent to provide statements and give evidence due to their fear or reprisal. Mr Emerson-Elliott objected to this course of action on natural justice grounds.
20. It was agreed that the matter would profit by a view of the premises and its surrounds. The matter was adjourned for a view and further hearing on 23 October 2009.
21. The Tenant tendered a statement from Christina Ryan, a resident of the Court which read:
We refer to your letter of 29 September 2009 sent to all residents of [the] Court in Reid. This letter is highly inappropriate, offensive, and potentially damaging to our community and we object to it in the strongest terms.
Rather than address a specific complaint you have chosen to tar all residents with the same brush. This is known as collective punishment and violates several human rights. Additionally, the accusations are erroneous and could be considered defamatory by many residents.
[The] Court is a pleasant place to live and has recently been experiencing a high level of neighbour interaction and community building. The letter that you have sent threatens this community spirit directly, as all of those people who have settled into our world now feel personally attacked for behaviour they have probably had no part in. Many of our neighbours come from very difficult backgrounds and take some time to settle into our community. Over time this usually happens and we are all the richer for it. It is a known consequence of moving in here.
To specifically target the children in our community is offensive. Many of these children have come from very unsettled circumstances and are not familiar with community living. They have all settled remarkably well and provide a source of real delight to many of us. We have not really had children at [the] Court before, at least not in the 13 years of our tenancy, and so many of our neighbours have had to adjust to the inquisitive, boisterous nature of the young people. However, despite a few misunderstandings there has been little that could cause you to write such a letter and accuse all of the children in such a way.
Your letter implies that we are living in an environment of violence, drugs and anti social behaviour. This is simply untrue and denies the very evident care and consideration that we all have for each other in this community. Everyone looks out for each other, particularly those who are frail, aged, or have disabilities. This is a large proportion of the residents and it is what makes [the] Court special.
We are disappointed that Housing ACT has employed such a tactic.
22. At the view Mr Leonard and Ms Hinchley attended for the Commissioner and Mr Emerson-Elliott attended for the Tenant. The Tribunal was shown inside the Tenant’s house, the court yard area in which the playground and BBQ were located, the car ports with their cupboards and the street accesses. The Tribunal met Ms Ryan and a resident from [the other premises] whose grandchildren were also nominated in the Commissioners complaints. The view was not sound recorded.
23. The Tribunal was introduced to the Tenant’s children who were 11, 10 and 6 years of age.
24. The playground was located in the middle of the central court yard. It had swings, slippery dip and other usual play ground items. The surface of the playground was a thick rubber substance and was undulating with some holes in it. The play ground had a fence around it and a gate. The gate was locked and the tenants of [the] Court had been told that the children could not use the playground.
25. The Commissioner’s representatives informed the Tribunal that a decision had been made to close off the play ground and that a further decision would be taken in the future whether to remove it altogether or to repair the rubber surface.
26. The Tribunal could not see any good reason for closing off the playground. The rubber surface did not appear to be in any worse condition than the surfaces in suburban play grounds. It was also apparent to the Tribunal that leaving the playground in situ albeit with a locked gate was bound to entice young children to climb the fence and use the playground equipment.
27. The Tribunal made the point to the Commissioner that the playground was a facility provided with the tenancy even if the individual tenancies only provided a license to use the playground in common with the other tenants. On this basis it was not obvious to the Tribunal that the Commissioner had the right to determine to remove the playground as opposed to having a duty to repair it.
28. The Tribunal viewed the carports and the cupboards located within and next to the carports. The carports have open access. The cupboards are about 1.5m high by 1m wide by 1m deep. The cupboards line the inside wall of the open carports as well as the walls of the court yard outside the carports. Many of the cupboards were unlocked and open.
29. The Tribunal was shown a particular cupboard which the Commissioner said the children of the Tenant had damaged. This cupboard was not located in any carport. The rear fibro wall of the cupboard was broken and the Tribunal was informed that a car had crashed into this wall from the road side of the court yard. This cupboard was unlocked but appeared otherwise to be in tact. The Tenant informed the Tribunal that this and other cupboards were regularly used by homeless people who slept in them. There was evidence of this in another cupboard which contained straw, a pillow and other related food items.
30. A tenant by the name of G… introduced herself. G… is an older lady living in [the other unit]. She has several grandchildren that visited periodically who were about the same age as the Tenant’s children. G… is a lady of Aboriginal decent. She complained that certain residents disliked her and her grandchildren due to their racial background.
31. The Tribunal was shown the BBQ area where the children were alleged to have lighted a fire with junk mail. There was no evidence of damage of any kind.
32. The Tribunal met Christina Ryan who was a woman with a physical disability that confined her to a wheel chair. She said she had been a resident for 13 years and had never seen the Tenant’s children damage anything or engage in threatening behaviour. She said that in general the atmosphere in [the] Court was friendly and she felt angry at the manner in which the Commissioner approached dispute resolution issues in the complex.
33. During the view there was some discussion about the possibility of bringing in a suitable person to engage in community development work that included mechanisms for resolving disputes and tensions as opposed to the present litigious and penal approach to the same issues.
34. The parties returned to the Tribunal after the view. The Tribunal again attempted a mediation of the dispute in terms of a community development approach without success.
35. The Commissioner indicated the wish to file and serve further statements from witnesses. The Commissioner maintained that some witnesses’ statements should be confidential for fear of reprisal. Mr Emerson-Elliott objected to the Tribunal permitting any further evidence at all and in the alternative to the use of confidential statements.
36. The Tribunal made procedural orders for the Commissioner to file and serve by 6 November 2009 statements from all witnesses relied upon. The Tribunal ordered that the Commissioner file these statements if the Commissioner intended to rely upon them and to make application at the same time for any non-disclosure to the Tenant and the reasons for the application.
37. The Tribunal made an order to the effect that Mr Emerson-Elliott should not disclose to the Tenant the content of the witness statements in respect of which the Commissioner sought confidentiality, until further order of the Tribunal.
38. The Tenant was to file and serve his witness statements by 20 November 2009 and the matter was listed for hearing on 10 December 2009.
39. Neither party has yet complied with the above orders.
40. On 2 November 2009 Welfare Rights and Legal Centre wrote to the Tribunal maintaining its objection to the Tribunal permitting the filing of further witness statements from the Commissioner and seeking a statement of reasons for this ruling.
41. Set out below are the Tribunal’s reasons. The reasons consider the following questions:
(a) whether the Tribunal has power to adjourn proceedings to permit new evidence once a hearing has commenced;
(b) whether the Tribunal should permit the Commissioner, or any party, to rely upon evidence from witnesses whose evidence is to be taken by the Tribunal in the presence only of the Tenant’s legal representatives and without that legal representative having the right to discuss the particularity of that evidence with the Tenant;
(c) whether the whole litigious/penal approach to dispute resolution is a sensible manner in which to resolve the present dispute.
The Tribunal’s power to adjourn proceedings and permit new evidence
42. Section 24 ACT Civil and Administrative Tribunal 2008 (ACAT Act) provides the power for the Tribunal to make rules to govern its practice and procedure. Rule 5 of the ACT Civil and Administrative Procedure Rules (2009) (the Rules) provides the power for the Tribunal to make Directions to govern its practice and procedure.
43. Directions 45 and 46 of the ACT Civil and Administrative Tribunal Directions 2009 (the Directions) govern adjournments and provide:
45. To facilitate the quick resolution of applications, parties should anticipate that requests for the adjournment of a conference, mediation or hearing will be granted sparingly.
46. In considering an application for adjournment the tribunal will consider the reasons put forward for the request and-
(a). the attitude of each other party to the application to the request for an adjournment; or
(b). any serious disadvantage the requesting party or where relevant the public, may suffer if the adjournment is not granted; or
(c). any prejudice to each other party or where relevant, to the public, if the adjournment is granted; and
(d). the appropriateness of an order requiring the requesting party to pay costs if an adjournment is granted
(e). any other relevant matter.
44. In the present case, in granting the adjournment to permit the Commissioner to file and serve further witnesses statements, the Tribunal took into account:
(a) the need to ensure that all relevant evidence was before the Tribunal;
(b) the fact that the Commissioner had foreshadowed the existence of other evidence at an earlier time;
(c) the lack of any immediate prejudice to the Tenant in the sense that he is not required to vacate his townhouse unless and until a final order to that effect is made and that an adjournment will only have the effect of postponing any such final order;
(d) the objects and principles of section 6 and 7 ACAT Act that exhort the Tribunal to provide a simple, quick, inexpensive and informal process.
45. In the matter of Britten v ACT Housing [2004] ACTRTT 8 the presently constituted Tribunal had the following to say concerning the role of adjournments in assisting parties to ensure that each party has all reasonable opportunities to put their case. In that matter it was the tenant, represented by Welfare Rights and Legal Centre, who was granted the adjournment to adduce new evidence over the objections of the Commissioner:
24. Section 98 [Residential Tenancies Tribunal Act 1997]further provides that "the Tribunal shall actively assist parties to a hearing to understand the hearing process and present their case". It is important to note that section 98 is cast in the imperative ("shall") and requires the Tribunal's "actively" participating in assisting parties to "present their case". In the Tribunal's view this imperative extends to making relevant procedural orders to provide guidance to the parties as to the nature of the evidence required in the presentation of the party's case. It is not the Tribunal's role to play the passive adjudicator and allow cases to turn the vicissitudes of legal onuses of proof.
25. The Tribunal adopts what was said at [3.28.7] Residential Tenancies Law and Practice in NSW (2003 edition Anforth, Thawley and Christensen) concerning the need for active intervention by the Tribunal in cases of unrepresented litigants. The decisions of the NSW Supreme Court in APA Life Insurance Ltd v Charles [1981] 2 NSWLR 352 and the Victoria Supreme Court in Wright v Victorian Civil and Administrative Tribunal [2001] VSC 35 are particularly apposite.
26. The matter was next listed before the Tribunal on 12 January 2004. The Applicant appeared in person and Mr Christensen appeared on behalf of the Respondent. The Applicant had not complied with the previous procedural orders and sought an adjournment for the purposes of so doing.
27. Section 92 of the Act contains a power to adjourn proceedings. There are no express criteria attached to the power. In Scott v Handley (1999) 58 ALD 373 the Full Federal Court said:
‘29. For a judge to refuse an adjournment of the hearing of proceedings sought by an applicant on the day of the hearing on the basis that they are not in a position to proceed and thereby dismiss those proceeding, is a most significant step not lightly taken.’
28. In the case of unrepresented litigants the step is an even more significant one. In the present case no real prejudice attended the granting of an adjournment, as the final outcome of the application would have no direct bearing on the rent paid. The hearing was adjourned to 13 February 2004 with orders that the tenant comply with the previous procedural orders within 14 days.
29. On 13 February 2004 the Applicant was represented by Mr Dalton of Welfare Rights and Legal Centre and Mr Christensen represented the Respondent. The Applicant did not present any evidence of comparative rents. The Applicant provided a video of the premises and the surrounds (including the adjacent building site) which was viewed by the Tribunal. The Tribunal noted the defective standard of the bathroom vanity which needed replacement and that the communal car park tended to collect pooled water. Other than this the premise appeared in reasonable order.
30. The attention of the parties was largely focused on the effects of the adjacent building site.
31. The Applicant then sought a further adjournment to file and serve evidence on comparative rents. The Tribunal was cognizant of the following considerations in granting an adjournment:
(a) The tardiness of a party in instructing solicitors and preparing its case is usually a factor against granting an adjournment (Owners Corporation SP51652 v Consumer Trader and Tenancy Tribunal & Anor [2003] NSWSC 739). But the granting of an adjournment should generally be based on the importance of the need for the adjournment to the substantive case rather than be based on notions of fault (Dick v Pillar (1943) 1 KB 497; Wannal Pty Ltd v Jericho Nominees Pty Ltd (1983) 2 SR(WA) 297). Tardiness and thus fault, only becomes a consideration if the reason for the adjournment is not substantial.
(b) Likely substantial injustice to the other party is a factor against granting an adjournment.
(c) Considerations of the Tribunal's case management needs is generally not a sufficient reason to deprive a party of the right to a fair hearing of their substantive matter (Queensland v JL Holdings Pty Ltd [1997] HCA 1)
(d) An unreasonable refusal to grant an adjournment which prevents a party from properly presenting their case is a denial of natural justice and therefore an error of law (Allen Taylor & Co Pty Ltd v Drew unreported NSWCA (5 May 1982)).
32. In the present case there was tardiness by the Applicant in retaining solicitors and in otherwise complying with the procedural directions. But there was no great prejudice caused to the Respondent and a failure by the Applicant/tenant to adduce any evidence on comparative rents was likely to go to the heart of the tenant's case. Not without considerable reservation, the Tribunal granted the request for adjournment and ordered the evidence to be filed and served within 14 days. The parties were also ordered to file and serve submissions on the relevance and extent of the effect of the disturbance arising from the adjacent building site.
46. On the question of the Tribunal’s duty to ensure that parties have the opportunity to understand the issues and present all relevant evidence in support of their case, the presently constituted Tribunal expressed the following view in Xia v Wang & Bian (Residential Tenancies) [2009] ACAT 21:
176. Section 98 of the [ACAT] Act provides:
The Tribunal must actively assist parties to understand the hearing process and present their cases.
177. This section requires that the Tribunal “must” undertake this task i.e. it is not an option for the Tribunal.
178. Secondly, this power requires that the Tribunal undertake this task “actively” and not merely nominally.
179. In Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193 the Victorian Court of Appeal held that a provision identical to sections 8 and 26 of the ACAT Act was sufficient to indicate a legislative intent that the proceedings of the Board were “inquisitorial” and not “adversarial” in nature.
180. In Bates v Port Stephens Holiday Park Pty Ltd (1996) NSWRT 208, the NSW Residential Tenancies Tribunal had the following to say concerning the mix of adversarial and inquisitorial processes in the Tribunal:
It is of course one of the great difficulties for the Tribunal as it is for a number of similar bodies that generally speaking parties are not represented. Whilst the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit, it is extremely difficult when dealing with applications such as the current ones to draw a line between giving guidance and direction to each of the parties and actively stepping into the arena of evidence. The easy path would be for the Tribunal to lean heavily on parties and to dismiss applications if evidence was not readily produced. However, in practice this would have the alarming consequence that the number of dismissals would exceed the number of cases heard. It could also mean that people from different cultural, social and educational backgrounds would be disadvantaged.
It is clear that the discretion given to the Tribunal must be exercised judicially. His Honour confirmed the former chairman of the Tribunal Mr Harley Rustin’s comments in an Addendum to his (Mr Rustin’s) decision in that case ... ‘The Tribunal (is not entitled) to act according to some arbitrary concept of its own or to ignore the legal rights and liabilities of the parties assuming a new and undefined power to decide the matter in dispute according to what it thinks is fair and proper. (Ex parte Herman; Re Mathieson (1960) 78 WN NSW 6).’
The Tribunal does not in practice sit back and wait as parties attempt to do their best. It advises; it raises issues, asks questions and suggests hypotheses. Within the framework of natural justice and conventional legal procedures it actively intervenes in an attempt to adduce the relevant evidence which it finds to be admissible. The words of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342 are apposite.
‘In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case’.
181. In NSW Department of Housing v Szilagy (1997) NSWRT 182 a similarly constituted Tribunal said:
There are circumstances where the Tribunal does not sit back and wait as parties attempt to do their best. Instead it raises issues, asks questions and suggests hypotheses. Within the framework of natural justice and procedural fairness it actively intervenes to adduce the relevant admissible evidence. If it did not do so in a forum where parties appear in person and rights of representation are restricted the majority of applications would be dismissed.
182. In APA Life Insurance Ltd v Charles(1981) 2 NSWLR 352, when speaking of the role of referees in the Consumer Claims Tribunal, Hunt J stressed the need for referees to ensure that unrepresented litigants were assisted by the referee in understanding how to present their case and in understanding the case they had to answer.
183. The duty for presiding officers to intervene in proceedings to ensure justice is done has been affirmed by the High Court in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571:
It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated ...
184. Similar views were expressed by the NSW Court of Appeal in Galea v Galea (1990) 19 NSWLR 263 at 281–282.
185. In Malaxetxebarria v The State of Queensland[2007] QCA 132 the Court of Appeal made the following observation about the role of Anti Discrimination Tribunal in Queensland when dealing with unrepresented litigants:
It is also important to bear in mind that, while it may be desirable to eschew undue formality and technicality in proceedings under the Act, the more informal the conduct of proceedings may be, the more important is the need to ensure that all parties have a precise understanding of just what is being alleged: natural justice requires no less.
186. In Nipperess v Military Rehabiliation and Compensation Commission[2006] FCA 943 Cowdroy J was critical of the Administrative Appeals Tribunal’s decision to limit consideration of the issues before by reference to concession extracted from an unrepresented litigant who did not understand the legal significance of those concessions. Cowdroy J said the Tribunal should have taken up any issues which arose in the course of the proceedings which appeared relevant to a determination of the substantive merits of the case.
47. The above principles apply to both lessor and tenant. Subject to what is said below about the very nature of the present proceedings, the Commissioner is entitled to put his case and to rely upon such evidence as is probative particularly where there is no obvious prejudice to the Tenant in permitting that process. The Tribunal has a duty to ensure that all relevant evidence is before the Tribunal.
Whether the Tribunal should permit reliance upon evidence given in the absence of the other party
48. Section 38 ACAT Act provides the basic rule that all proceedings are to be in public:
38(1) The hearing of an application by the tribunal must be in public.
(2) However, this section does not apply to a hearing, or part of a hearing, if the tribunal makes an order under section 39 in relation to the hearing, or part.
49. The exceptions to this basic rule are set out in section 39:
39(1) This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.
(2) The tribunal may, by order, do 1 or more of the following:
(a) direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;
(b) give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.(3) The tribunal may make an order under subsection (2) on application by a party or on its own initiative.
(4) A person must not contravene an order under subsection (2) (b) or (c).
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.(5) For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private—
(a) to protect morals, public order or national security in a democratic society; or
(b) because the interest of the private lives of the parties require the privacy; or
(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.
50. In the present case the Commissioner’s argument is apparently based on section 39(2)(c), namely that the disclosure of the other witness statements would affect the interests of the private lives of those witnesses who live in close proximity to the Tenant and fear retribution to the point that the witnesses may not be forthcoming unless their confidentiality is assured.
51. Section 35 Administrative Appeals Tribunal Act 1975 (Cwth) contains a similar provision which has been the subject of judicial consideration by both the Federal Court and the Tribunal.
(1) Subject to this section the hearing of proceedings before the Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence …the Tribunal may by order:
..
(c) give directions prohibiting or restricting evidence given before the Tribunal, or of the contents of some document lodged with the Tribunal or received in evidence by the Tribunal…(3) In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted."
52. In Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 Brennan J made the point that the exclusion of a party during the evidence of a witness is an extreme step only to be ordered if were the confidential evidence is itself likely to be particularly cogent.
53. In Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208 Deputy President Forgie of the Administrative Appeals Tribunal (Cwth) had the following to say:
8. Together with Senior Member Pascoe, I analysed the authorities relating to the exercise of the Tribunal’s power in Re an Applicant and Australian Prudential Regulation Authority [2005] AATA 1294. We concluded that:
57. Just what are those principles? We have set them out at length above. It is apparent from each of the authorities to which we have referred under the various headings that the principle that hearings should be held in public is balanced against what is necessary to secure the proper administration of justice in the proceedings in a particular case. The requirement that cases be heard in public is directed towards ensuring that proceedings are fully exposed to public and professional scrutiny and criticism. Openness assists in ensuring that they are conducted without arbitrariness and the outcome is similarly without arbitrariness and uninfluenced by matters that have not been openly tested. At a more general level, openness tends to maintain confidence in the integrity and independence of the decision-making process be it of the courts or of the Tribunal. The proper administration of justice in a particular case requires that it be conducted fairly and not only that all relevant material can be given to the decision-maker for consideration but that the proceedings are conducted so that it is given. It also requires that the outcome of the proceedings is not rendered nugatory. Just where the balance lies between the two principles in any particular case will include a consideration of whether the proper administration of justice can be secured in any way other than by impinging on the openness of the hearing process. It is apparent from the cases to which we have referred that it is not appropriate to adopt what might be described as a "formulaic" approach. While there have, for example, been cases in which the courts have traditionally suppressed information from the public, it is no longer possible to see those cases as the only circumstances in which it is appropriate to make such an order. The pseudonym cases provide an illustration. Traditionally, cases concerned with blackmail, informers and national security have led to pseudonym orders. The damage that can be done by the release of an informer’s name or of a blackmail attempt is accepted. More recent cases have shown that pseudonym orders have been made in cases relating to extortion and beyond. They have determined that the damage that is likely to be done by revealing the information outweighed the principle of open justice.
58. The principle that the Tribunal conduct its hearings in public is a fundamental principle enshrined in s. 35(1) but, equally, s. 35(2) recognises that there are occasions and reasons when not all that happens in the Tribunal should be subject to public scrutiny. Section 35(2) does not try to suggest any boundaries on the occasions on which Brennan J said [in Re Pochi and Minister for Immigration and Ethnic Affairs] that the power is ‘... there to be exercised, albeit sparingly ...’ just as it is in the courts."
54. The purpose of an order protecting the confidentiality of a witness, with the consequence of limited cross examination is absolutely not to permit a forensic advantage to the party that relies on the witness. As a general rule a witness should give their evidence in open court or tribunal. The fact that a witness feels uncomfortable or embarrassed is not sufficient reason to depart from the general rule. An order to permit in confidential evidence should only be made if there is good reason to protect the identity of the witness, as opposed to the protecting the content of the witness’s evidence. If the identity of the witness is already known to the other party, or if the general tenor of the evidence is bound to made known the identity of the witness to the other party, then there seems little point in making a confidentiality order and good reason not to.
55. In the present case orders were made on 6 November 2009 for the Commissioner to file the statements in respect of which confidentiality was sought and to give his reasons for the application. Once the statements are filed together with the Commissioner’s reasons for seeking the confidentiality, the Tribunal will hear submissions from the Tenant’s legal advisers and will determine whether there is sufficient justification for the confidentiality order sought based on the above principles.
Whether the litigious/penal approach is the best approach in the present circumstances
56. This case raised two fundamental issues concerning the role of the Tribunal and its processes that needs comment.
(a) The first fundamental issue
57. The Tenant and his young children live in a townhouse complex in close proximity to other residents who are all tenants of the Commissioner.
58. The Tenant’s children are young and they may be expected to behave as any other young children of that age do. Thus it is no surprise that they may have climbed the fence to access the play ground or have used the open cupboards as cubby houses. These are not grievous sins on the part of the children.
59. Young children can be energetic and boisterous at times and this kind of conduct can disturb elderly people or people of particular sensitivities, but the children are only 11, 10 and 6 which raises the issue of how or why any of the adult residents would be ‘intimidated’ by them as opposed to merely disturbed.
60. Young children tend to seek out other young children and play in groups as appears may have occurred in the present case. This is not a wrong thing for children to do.
61. The problem in the present case appears to be that the complex itself is not suitable for the needs of the young children. Ms Hinchley, the housing officer, herself said in her statement:
From my dealings with the complaints I formed the view the more vulnerable tenants at the complex are harassed and are afraid to be identified for fear of retribution. The behaviour of the children involved becomes worse during the school holidays as the children have more free time and become bored. In my opinion [the] Court Complex is not a healthy area for young children of this age group to spend their formative years. I believe the children are basically good kids but when the children of [the premises] and [the other premises] are forced together for extended periods the children display unacceptable behaviour which I believe will become more brazen as the children get older if not dealt with appropriately.
62. Making orders that young children not behave as young children do, appears to the presently constituted Tribunal to be about as useful as King Canute’s order that the tide now come in. It would seem that a more productive approach would be to move the Tenant and his children to accommodation that is more suitable to young children and less likely to disturb sensitive neighbours.
(b) The second fundamental issue
63. The residents at [the] Court constitute a small contained community of some 62 units. They live in close proximity and have regular contact with each other.
64. If one resident is known to lodge a complaint against another, it can cause tension between them. Similarly if one resident appears in the Tribunal and gives evidence for the Commissioner in which the finger of criticism is pointed at another resident then tension can be created. The tension may then find its outlet in a further deterioration of relations between the residents affecting the quality of life for all involved and creating more work for the Commissioner and the Tribunal.
65. This is part of the reason why the Commissioner wishes to adduce confidential evidence from the witnesses who seek to avoid the ramifications of the criticisms they levy against the Tenant and his children.
66. Unfortunately the proceedings in the Tribunal are perceived as being litigious in nature and do result in residents being cast in adversarial relationships. The remedy sought by the Commissioner is unequivocally penal in nature i.e. it seeks to apportion blame and results in potential eviction.
67. If the Commissioner attempts to solve these community disputes via the litigious/penal route then the Commissioner is highly likely to cause a deterioration in community relations and to cause more problems then are solved. This is not to say that in some cases there can be no choice for the Commissioner but to seek penal orders including eviction; but this approach is surely to be the final approach to an otherwise insolvable problem and not the first approach.
68. In the present case we are dealing with some energetic young children and a small number of other residents who feel disturbed by the children’s behaviour. It is clear enough to the Tribunal that the number of residents making these complaints is only a small proportion of the total number of residents and that not all residents share the view of those making the complaint.
69. This case calls out for a community development response with a view to bring all the residents into a sufficiently comfortable relationship with each other. Under the guidance of skilled social workers this may involve meetings of the residents, facilitated discussions between the residents, some action by the Tenant to educate or restrain his children in various ways and it might also involve exploring in more depth the sensitivities of those making the complaints. This approach has to be more productive as a first step than the litigious/penal approach now underway.
70. The above position was explored with the Commissioner’s representatives at the view and in the Tribunal. The Tribunal encourages the Commissioner to further consider the issue.
Specific performance orders generally
71. Nothing above is intended to cast any doubt on the right of the Commissioner to seek orders in the nature of specific performance of the tenancy agreement as a mode of resolution of a tenancy dispute. Such orders would be available at common law and are specifically provided for in section 83(a) and (b) Residential Tenancies Act 1997.
72. In general, it is a good thing for the Commissioner to intercept breaches of the tenancy agreement at an early time whilst they are solvable. This applies to both rent default and breaches of the behaviour requirements of the tenancy agreement. It is better to intercept such breaches early and save the tenancy than to allow the breach to cause such ill will between neighbours that eviction becomes the only tenable alternative.
I certify that the preceding seventy-two (72) numbered paragraphs
are a true copy of the Reasons for Decision herein of Senior Member
Anforth of the ACT Civil & Administrative Tribunal
………………………………
Ms L Crebbin
General President (ACAT)
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 09/560
APPLICANT: THE COMMISSIONER FOR SOCIAL HOUSING
IN THE ACT
RESPONDENT: ASHTON PYE
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT: EMERSON-ELLIOTT
OTHER: APPLICANT: LEONARD
RESPONDENT:
TRIBUNAL MEMBER/S: MR A ANFORTH SENIOR MEMBER
DATE/S OF HEARING: 23 OCTOBER 2009 PLACE: CANBERRA
DATE/S OF DECISION: 9 DECEMBER 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
0