Commissioner for Social Housing v Hoare (Residential Tenancies)

[2020] ACAT 35

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v HOARE (Residential Tenancies) [2020] ACAT 35

RT 659/2019

Catchwords:               RESIDENTIAL TENANCIES – application for stay of proceeding pending criminal trial – stay sought to assert right of tenant not to give evidence on the grounds of self-recrimination – person claiming privilege must assert it and justify its basis

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 7, 53

Residential Tenancies Act 1997 s 51

Cases cited:John Morgan and Construction Occupations Registrar [2011] ACAT 18

List of

Texts/Papers cited:     J D Heydon, Cross on Evidence, 4th Ed, Butterworths, Australia, 2010

COAT Practice Manual for Tribunals (March 2009), Chapter Five: Hearings

Tribunal:  Senior Member J Lennard

Date of Orders:  13 May 2020

Date of Reasons for Decision:         13 May 2020

AUSTRALIAN CAPITAL TERRITORY          

CIVIL & ADMINISTRATIVE TRIBUNAL           RT 359/2019

BETWEEN:

COMMISSIONER FOR SOCIAL HOUSING

Applicant

AND:

MICHAEL ALEXANDER HOARE

Respondent

TRIBUNAL:  Senior Member J Lennard

DATE:13 May 2020

ORDER

The Tribunal orders that:

1.The application for a stay is dismissed.

2.The application for termination and possession is adjourned for a decision on the papers.

3.The respondent shall provide to the Tribunal and to the applicant any further evidence, upon which he wishes to rely, in response to that application on or before 27 May 2020.

4.The applicant may make submissions in reply to evidence filed by the respondent, on or before 3 June 2020.

………………………………..

Senior Member J Lennard

REASONS FOR DECISION

1.This is an application for termination and possession pursuant to section 51(a) &(d) of the Residential Tenancies Act 1997 (RT Act), which provides:

Damage, injury or intention to damage or injure

On application by a lessor, the ACAT may make a termination and possession order effective immediately if satisfied that the tenant has intentionally or recklessly caused or allowed, or is likely to cause or allow:

(a)     serious damage to the premises or to other property of the lessor; or

(d)     serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises.

2.The respondent has been a tenant of premises in Franklin ACT since 2014. He shares the house with his seven year old daughter who visits every second weekend.

3.On 3 October 2019, an incident occurred at the premises in which it is alleged by the applicant lessor that the respondent tenant caused serious damage to the premises and caused serious interference with the quiet enjoyment of occupiers of neighbouring premises. On 3 October 2019, the tenant was arrested and charged with criminal offences.

4.This application also arises from the incident on 3 October 2019. The applicant has attached to its application the evidence it intends to rely upon.

5.The respondent’s legal representative has provided written submissions on the legal issues and evidence. The tenant has provided a written statement.

The stay application

6.The matter was heard on 28 November 2019. The tenant was present at the hearing and represented by Canberra Community Law. The tenant made an application for a stay of the proceedings until the criminal proceedings had been completed. The application for a stay based upon the tenant’s assertion of a right not to give any evidence on the grounds of self-incrimination in relation to criminal proceedings possibly arising from the incident on 3 October 2019.

7.In a written statement provided to the Tribunal the tenant says:

4.       I have entered pleas of not guilty to all charges, and I was released on conditional bail on 27 December 2019.

5.       On 23 January 2020, my criminal hearing was committed for trial to the Supreme Court.

6.        I am unable to provide the Tribunal with a detailed statement about the events of 3 October 2019 because I have received legal advice that if I do, there is a real risk that that evidence could prejudice my criminal case.

7.       Because both the ACAT application and the criminal charges arise out of an identical set of circumstances, if I was to give evidence about the events of 3 October 2019, I believe I would effectively waive my right to silence and risk jeopardising my privilege against self-incrimination in relation to the criminal charges. I believe I would run the risk of giving evidence which may assist the prosecution in proving its case against me or which may affect decisions made about the case.

8.In written submissions the tenant cited section 53 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) which provides that the Tribunal may make interim orders, if before the hearing of an application, a party to the application applies to the Tribunal for an order under this section; and  the Tribunal is satisfied that, if an order under this section were not made before the hearing of the application, the party applying for the order would be disadvantaged or suffer harm.

9.The exercise of this power was considered in John Morgan and Construction Occupations Registrar [2011] ACAT 18 at [8]-[13]:

8.       The threshold requirement is established by a finding that the evidence before the tribunal establishes that the applicant would be disadvantaged or suffer harm if an order was not made. It is for the applicant to satisfy the tribunal of the requirement.

9.       The words ‘be disadvantaged’ and ‘harm’ are not defined in the tribunal’s legislation. They bear their ordinary meaning. ‘Harm’ requires the applicant to demonstrate something in the nature of an injury, loss or damage. ‘Disadvantage’ comprehends that the applicant would be affected unfavourably, or placed in an unfavourable position, or have some barrier or impediment placed in the way of their advancement.

10.     The threshold requirement is not a high barrier. The legislation does not require that the harm or disadvantage be serious or significant. However, a finding that an applicant would be disadvantaged or would suffer harm requires the tribunal to be satisfied of something more than mere inconvenience.

11.     If the threshold requirement is met, the tribunal has discretion to make an appropriate order. Where the order to be made is in the nature of a stay, the exercise of that discretion should, in my view, be informed by the substantial body of jurisprudence relating to the exercise by tribunals and courts of powers to grant stay orders.

12.     In a regulatory context, the jurisprudence can be summarised by reference to four factors, namely:

(i)whether the material before the tribunal indicates that there is a serious issue to be tried on the substantive application;

(ii)whether any prejudice would be suffered by any party if a stay was not granted;

(iii)whether public safety or the public interest would be imperilled if a stay is granted; and

(iv)whether the substantive application would be pointless or rendered nugatory if the stay is not granted.

13.     The last three factors can be characterised as related to a broader consideration of the balance of convenience.

10.The common law privilege against self-incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person. No one is bound to answer any question or produce any documents if the answer or the document would have a tendency to expose that person to the imposition of a civil penalty or to conviction for a crime.[1] The privilege is available to natural person, whether a party to proceeding or a witness and is available in proceedings to enforce property rights.[2] In civil matters the privilege may arise at prehearing stage such as directions hearings. If a person claims the privilege, they must assert it and identify its basis. The person must establish a reasonable and bona fide apprehension that the evidence would have the consequences feared.

[1] J D Heydon, Cross on Evidence, 4th Ed, Butterworths, Australia, 2010 at 25065

[2] Ibid at 25075

11.In general, the privilege only applies to the answers to specific questions and cannot be claimed globally. It is for the person claiming the privilege to assert it and justify its basis. It is conventionally said that the claimant must establish a bona fide apprehension of the consequence on reasonable grounds. The witness’s mere contention that they are at risk of prosecution is not sufficient, even though it may be made on oath and apparently be bona fide. The Tribunal needs to identify from the circumstances of the matter before it, and the nature of the evidence that the witness is called upon to give, that there is a reasonable ground to apprehend danger for the witness in answering the question. The risk must be real and appreciable, not a danger of an imaginary or insubstantial character, having reference to an extraordinary or barely possible contingency so improbable that no reasonable person would allow it to influence their conduct.[3]

[3] Extracted from COAT Practice Manual for Tribunals (March 2009), Chapter Five: Hearings.

12.The tenant has not provided sufficient information to the Tribunal either to assert the privilege or to establish the requisites for an order staying the matter:

(a)There is no information before the Tribunal as to the nature of the criminal charges against the tenant.

(b)There is no information before the Tribunal to establish what answers or documents he is asserting the privilege over.

(c)There is no information as to when the criminal charges may be determined by the Supreme Court of the ACT.

(d)There are no submissions made as to what disadvantage or harm the tenant would suffer should the matter not be stayed. It is not for the Tribunal to speculate on these. In the absence of information about the apprehended consequences of giving any particular evidence, the tenant must be found to have failed to establish a bona fide apprehension of any such consequences.

(e)There is public interest in having matters brought before the Tribunal dealt with in accordance with the principles set out in section 7 of the ACAT Act. That is the procedures of the tribunal are to be as simple, quick, inexpensive and informal as is consistent with achieving justice; and observing natural justice and procedural fairness.

(f)The tenant has claimed a blanket privilege in relation to any evidence or response to the application. This is not permissible. The privilege is a rule of evidence and is not a to be misused to attempt to avoid the hearing of a matter.

(g)The applicant is entitled to pursue their application and to require the Tribunal to make a determination on the substantive issue it raises in that application.

13.In relation to the application for termination and possession the lessor has the onus of proving their case. No respondent is obliged to give evidence, and in the absence of evidence from a respondent, the applicant still must establish the claim by providing evidence that satisfies the Tribunal to the civil standard that the events or circumstances asserted happened, and that termination is justified.

14.I therefore refuse the application for a stay of proceedings.

15.The tenant has not provided any evidence in reply to the application. Some 5 months has elapsed since the application was made. Procedural fairness will be best served by providing the respondent an opportunity to provide to the Tribunal and the applicant any further statement or evidence in response to the application.  The Tribunal will then determine the matters on the papers.

………………………………..

Senior Member J Lennard

HEARING DETAILS

FILE NUMBER:	RT/359/2019
PARTIES, APPLICANT:	Commissioner for Social Housing
PARTIES, RESPONDENT:	Michael Alexander Hoare
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	ACT Government Solicitor
SOLICITORS FOR RESPONDENT	Canberra Community Law
TRIBUNAL MEMBERS:	Senior Member J Lennard
DATES OF HEARING:	28 November 2019