Commissioner for Social Housing v Bradnam (Residential Tenancies)

The case involves an application by the Commissioner for Social Housing to the ACT Civil and Administrative Tribunal (the Tribunal) to set aside a termination and possession order made in the absence of the tenant, Mr Bradnam. The Commissioner sought the order due to Mr Bradnam's failure to pay rent, and subsequently sought to evict him. Mr Bradnam applied to set aside the order, arguing that he had not been given an opportunity to present his case and that he was suffering from depression which made it difficult for him to engage with authorities. The Tribunal was required to determine whether the order should be set aside due to a lack of procedural fairness, and if so, whether there was an arguable case that a different outcome would result from a rehearing.

The Tribunal noted that it had the power to proceed with the hearing in Mr Bradnam's absence, as provided for in section 44 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). However, the Tribunal also had the power to set aside the order if it found that procedural fairness had been compromised. The Tribunal considered the principles of natural justice and procedural fairness, which include the right to be heard. While natural justice requires an opportunity to be heard, it does not require that the person actually be heard before a decision is made. However, the Tribunal must exercise its discretion to set aside an order with regard to achieving justice, simplicity, quickness, inexpensiveness, informality, and procedural fairness.

Applying the dual test from Allesch v Maunz, the Tribunal found that Mr Bradnam had a reasonable excuse for his non-attendance due to his emotional state and depression. The Tribunal also found that there was an arguable case that Mr Bradnam's attendance at the hearing may have made a difference to the outcome. Given the length of time Mr Bradnam had been in the premises, his irregular rent payment history, and the possibility of different types of termination orders, the Tribunal could not discount the possibility that a different outcome might result from a rehearing.

Accordingly, the Tribunal set aside the termination and possession order made on 29 September 2016 and adjourned the matter to a later date. The Tribunal ordered that Mr Bradnam be allowed back into the premises and that he pay all current rent as and when it fell due. The Tribunal noted that Mr Bradnam needed to produce medical evidence as to his condition and treatment, and evidence of setting up a direct debit of rent to the Commissioner. The Tribunal also advised Mr Bradnam to consider applying for a rental rebate, the institution of financial management orders, and dealing with CARE urgently.

The Tribunal's final orders were:
1. The termination and possession order dated 29 September 2016 is set aside.
2. The matter is adjourned to Thursday 24 November 2016 at 12.00pm.
3. The tenant is to be allowed back into the premises as of 2.30pm, 27 October 2016.
4. The tenant is to pay all current rent as and when it falls due, first payment to be made on 6 November 2016.