CORKERY & COMMISSIONER for SOCIAL HOUSING in the ACT (Residential Tenancies)

Case •

[2013] ACAT 2

•

22 January 2013

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CORKERY & COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Residential Tenancies) [2013] ACAT 2

AA 12/39

RT 01/1618

Catchwords:             RESIDENTIAL TENANCIES – appeal – termination and possession order – stay of warrant for eviction – various Tribunal orders are in the nature of individual steps before making the order – whether Original Tribunal considered material issues – condition precedent for enforcing conditional termination and possession order – Wednesbury unreasonableness – whether there was an error in the decision appealed from – functus officio

List of legislation: ACT Civil and Administrative Tribunal Act 2008

ss.7, 53, 56 & 79

Residential Tenancies Act 1997 ss.42A, 42B, 47, 48 & 49

List of Regulations:   ACT Civil and Administrative Tribunal Procedure Rules 2009 
  (No. 2)

Rules 14 & 22

List of cases:             Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223

Bottles v Commissioner for Social Housing in the ACT [2011] ACAT 19

Commissioner for Taxation (Cth) v Cainero (1988) 15 ALD 368

Fisher v Commissioner for Social Housing in the ACT [2012] ACAT 32

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

List of Texts/Papers: Explanatory Memorandum for the Residential Tenancies
  Amendment Bill 2005

Tribunal:                  Ms E. Symons, Presidential Member

Date of Orders:  22 January 2013

Date of Reasons for Decision:         22 January 2013

IN THE ACT CIVIL &                   )

ADMINISTRATIVE TRIBUNAL )   FILE NUMBER

AA 12/39

RT 01/1618

KRISTY CORKERY
Appellant/Tenant
THE COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
Respondent/Lessor

Tribunal        :          Ms E. Symons, Presidential Member

Date of order:           22 January 2013

ORDER

  1. The appeal is dismissed.
  1. Subject to Orders 3, 4, 5, 6, 7, 8 and 9 below, the decision of the Original Tribunal to terminate the appellant’s tenancy and grant a warrant of eviction is confirmed.
  1. The Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor/s at 10:00 am on 11 February 2013.
  1. The tenant and any other person claiming a right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.
  1. The warrant for eviction issued on 13 August 2012, which was stayed until further order on 5 September 2012, is to lie in the Registry until 10:00 am on 11 February 2013.
  1. The tenant shall pay the lessor an occupation fee at the rate of $10.91 per day from 22 January 2013 until the date that possession is given.
  1. The tenant is to remove all goods and return the premises in a clean condition by 9:00 am on 11 February 2013.
  1. Any goods remaining on the premises after the date for vacant possession will be deemed uncollected goods and the Uncollected Goods Act applies to their storage and disposal.
  1. The tenant shall pay the lessor rental arrears in the sum of $7,692.80 forthwith.

………………………………..

Ms E Symons

Presidential Member

REASONS FOR DECISION

Background

  1. The Tribunal adopts and sets out below the background details in the respondent’s submissions dated 23 October 2012.

  2. The appellant, Ms Corkery, is a tenant of the Commissioner for Social Housing,   the respondent.  She commenced her tenancy on 18 June 1997.

  3. On 11 January 2002, the Residential Tenancies Tribunal made a termination and possession order by consent. The appellant’s arrears were then $723.57.

  4. On 4 June 2007, a Notice of Breach of the tenancy agreement was served on the appellant. The arrears were then $109.65.

  5. On 8 May 2008, a Notice of Breach of tenancy agreement was served on the appellant. The arrears were then $1,116.50.

  6. On 28 July 2008 the Residential Tenancies Tribunal made a conditional termination and possession order by consent, noting rental arrears of $583.42.

  7. On 19 January 2009, the Residential Tenancies Tribunal set aside the orders of 28 July 2008 and replaced those orders with a conditional termination and possession order with an amount of rental arrears of $2,388.45.

  8. On 26 November 2010, a Notice to Remedy was served on the appellant, seeking payment of the rent in arrears within 7 days. At that time the arrears totalled $1,606.30.

  9. On 12 January 2011, the respondent lodged an application with the Tribunal to restore the matter to the list.

  10. On 31 January 2011, the ACT Civil and Administrative Tribunal (the Tribunal) sitting in its original jurisdiction (“Original Tribunal”) made a conditional termination and possession order (“CTPO”) requiring the appellant to pay rental arrears amounting to $2,746.06 by instalments of $50 per fortnight commencing on 4 February 2011.

  11. On 10 February 2011, a Notice of Breach of the order was served on the appellant for failure to pay rent in accordance with the CTPO. The arrears then amounted to $2,746.03.

  12. On 1 September 2011, the respondent lodged an application for seeking a warrant for eviction, pursuant to section 42A of the Residential Tenancies Act 1997 (“RT Act”).

  13. On 12 September 2011, the matter was adjourned to 18 October 2011 to allow the appellant to provide documentation requested by the Original Tribunal. The appellant was directed to pay $370 per week in the interim.

  14. On 18 October 2011, the Original Tribunal adjourned the matter generally for further hearing. The parties were given liberty to restore the matter to the list. The appellant was ordered to pay rent in accordance with the tenancy agreement and $20 per week for arrears until further notice.

  15. On 20 December 2011, a Notice of Breach was served on the appellant for failure to comply with the order of 18 October 2011.

Background to the Order being appealed

  1. On 31 January 2012 the respondent sought to restore the matter to the list for breach of the order of 18 October 2011.

  2. On 20 February 2012 the Original Tribunal made an order which evicted the tenant but stayed its effect until 16 April 2012. In the interim, the tenant was ordered to pay rent of $370 per week and $20 per week towards the rent amount in arrears, commencing 24 February 2012, and continuing every fortnight thereafter.

  3. On 23 March 2012 the respondent was notified that the matter had been relisted for 21 May 2012. No other orders were made on that date.

  4. On 21 May 2012 the Original Tribunal ordered that paragraph 1 of the order of 20 February 2012 (that the appellant is evicted but the eviction stayed) continue until 13 August 2012. Other orders were made, including requiring the appellant to pay rent and arrears and adjourning the matter to 13 August 2012. The arrears at 21 May 2012 were $6,278.65.

  5. At 13 August 2012 the rental arrears amounted to $7,252.20. The tenancy agreement between the appellant and the respondent was terminated and the appellant was required to vacate the premises by 3 September 2012. The Deputy Registrar was ordered to issue a warrant for eviction on 3 September 2012.

  6. On 31 August 2012 the appellant lodged an appeal to the Appeal Tribunal (“Appeal Tribunal”) and an application for a stay of the warrant for eviction.

  7. On 5 September 2012, the Appeal Tribunal granted a stay of the warrant for eviction and made orders that the appeal:

    a.   the application for appeal proceed as a review of the decisions of the Original Tribunal comprised of the hearings of 20 February 2012, 21 May 2012 and 13 August 2012; and

    b.   the Appeal Tribunal would consider all of the material before the Original Tribunal.

  8. The Appeal Tribunal also made directions requiring the parties to file and serve submissions. The appeal was set down for hearing on 8 November 2012.

  9. On 8 November 2012, Mr Emerson-Elliott, Advocate from Welfare Rights and Legal Centre, appeared for the appellant. Ms Leticia Holley, from the ACT Government Solicitor, appeared for the respondent. At the conclusion of the hearing Mr Emerson-Elliott requested an adjournment for two weeks so he could pursue further discussions with the respondent in an attempt to settle the matter. Accordingly, the Tribunal adjourned the matter to 22 November 2012.

  10. On 22 November 2012, Mr Emerson- Elliott informed the Tribunal that the matter had not settled. The Tribunal then reserved its decision.

Grounds of Appeal

  1. The appellant stated in her application for appeal that the grounds relied on were:

    The tenant will argue that the Termination and Possession Order made on
    13 August 2012 should be set aside for one or all of the following reasons –

    i.The Order of 13 August 2012 is invalid as there has been no finding by the Tribunal that the tenant either breached her tenancy agreement or breached a previous order of the Tribunal. Such a finding is required before the Tribunal can invoke its power to make a Termination and Possession Order;

    ii.The Tribunal did not have jurisdiction to hear an application for a Termination and Possession Order based on a breach of a Conditional Termination and Possession Order because the condition precedent for that jurisdiction, as set out in section 42A(1)(c), has not been satisfied; and

    iii.The Tribunal erred in failing to give appropriate weight to the evidence before it that the tenant was reasonably likely to pay rent that has become payable as well as future rent as it becomes payable (see section 49(3) and (4)).

The Law

  1. The appeal has been brought pursuant to section 79 of the ACAT Act which relevantly provides:

    79 (1) This section applies if—
                    (a) the tribunal has decided an application (the original
      application    ); and
                    (b) the original application was not an appeal from a decision
      by the tribunal.
         (2).............
         (3) A party to the original application may, by application, appeal the

    decision to the tribunal on a question of fact or law.

  2. Pursuant to subsection 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), this is an appeal on a question of fact or law.

Consideration

The first ground.

  1. The appellant stated, in her written submissions dated 5 October 2012, that the Order made on 13 August 2012 (the suspended eviction) was ultra vires as it was not made in accordance with the RT Act. The appellant submitted that:

    (i)section 42A(1)(c) of the RT Act required the Tribunal to find a breach of a conditional order before its power to order an eviction was enlivened, and

    (ii) section 42B(1) required the Tribunal to consider the appellant’s eligibility for a further conditional order before it could order an eviction[1] and that the Presiding Member did not appropriately address these issues before making the order to evict the appellant.

    [1] Fisher v Commissioner for Social Housing in the ACT [2012] ACAT 32

  2. The appellant submitted that there is power in section 53 of the ACAT Act for the Tribunal to make interim orders; that power is limited to orders lasting 12 weeks; pursuant to section 53(1) it must be made prior to the conclusion of the hearing, the power to make an interim order is extinguished when a final order is made and having made a final order the Tribunal is functus officio.

  3. Section 49(5)(b) of the RT Act provides limited power to suspend an eviction on ‘significant hardship’ grounds following an eviction. The appellant submits that there is no power conferred by either the RT Act or the ACAT Act under which the Tribunal can suspend a final order indefinitely.

The second ground

  1. The appellant submitted that section 42A(1)(c) of the RT Act requires that before an application can be made for a warrant for eviction where a conditional order has been breached, the lessor must satisfy the Registrar that ‘the condition [in the conditional order] has been satisfied.’ It is the appellant’s submission that the conditions in the conditional order had not been satisfied, but had been breached.

  2. The appellant referred the Tribunal to the Explanatory Statement for the Residential Tenancies Amendment Bill 2005 (which gave section 42A it’s current wording) and submitted that this suggests that the intention of the legislation was to set out procedures for dealing with a ‘failure’ to comply with a conditional order.

  3. The appellant submitted that the actual wording of section 42A is diametrically opposed to that intention and that there is a high probability that there has been a drafting error in the legislation as the word ‘not’ appears to be left out of section 42A(1)(c). The appellant further submitted that this error is not capable of being addressed by the doctrine of Scrivener’s Error or by ‘the golden rule’ of statutory interpretation.

  4. The appellant acknowledged that this issue was addressed by the Tribunal in Fisher v Commissioner for Social Housing in the ACT (see footnote (1) above) where the Tribunal accepted the respondent’s submission that the intention of the legislation requires that section 42A(1)(c) be read as if the word ‘not’ was included and then stated:

    “Such an interpretation is consistent with the purpose of the legislation and complies with the principles of statutory interpretation.”

  5. The appellant submitted that the Tribunal’s duty was to rule on the words as they stand in section 42A(1)(c), and to point out in its reasons for decision that due to an apparent drafting error in the wording of the legislation or in the wording of the conditional order, an absurdity has occurred that can only be addressed by an amendment to the Act, or by changing the wording of future conditional orders.

The Third Ground

  1. In this ground the appellant submitted that the Tribunal failed to consider and to give appropriate weight to, the new evidence at the hearing on 13 August 2012 that the appellant’s partner had left her and the premises, and that she was eligible for a $2,000 tax refund. Implicit in this evidence was that the appellant would become entitled to a significant rental rebate, making her rent affordable and allowing the Tribunal to be reasonably satisfied that the appellant could pay off the arrears and pay future rent as it fell due. The appellant had indicated that the whole of the tax refund cheque would be paid to the respondent.

  2. The appellant’s submission is that, whilst conceding that the Tribunal referred to this new evidence generally, the Tribunal did not consider it in terms of sections 49(3) and (4) of the RT Act. It therefore, failed to take into account matters that it was obliged to take into account, and thus acted unreasonably, in the terms of the test of unreasonableness in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

  3. The respondent opposed the appeal on a number of grounds:

    i.The Original Tribunal did not act ultra vires because it failed to make a finding of fact or because of some procedural irregularity. Section 42A of the RT Act does not require the tribunal to make a finding of fact before proceeding to consider an application under section 42B, such that a failure to make that finding would amount to jurisdictional error and invalidate any decision made under that provision;

    ii.The Original Tribunal did not otherwise act ultra vires. The order of         13 August 2012 was within the Original Tribunal’s power;

    iii.The respondent’s application for a warrant of eviction pursuant to section 42A of the RT Act was validly made and it was open to the Original Tribunal to consider the application;

    iv.The Original Tribunal did not err in the weight given to the appellant’s evidence;

    v.In exercising its discretion the Original Tribunal was not obliged to consider subsections 49(3) and (4) of the RT Act and did not err by not considering the issue.

The first ground

The Law

  1. Section 42A(1) or the RT Act sets out the requirements which are imposed on a lessor, before the lessor can make an application under section 42A. It states:

    Failure to comply with conditional order

    42A (1) A lessor may apply to the registrar for a warrant for the eviction
                of a person if—

    (a) the ACAT has issued a conditional termination and  
         possession order; and

    (b) the order has not expired; and

    (c) the lessor satisfies the registrar that the condition has been

    satisfied; and

    (d) the person to whom the order was directed continues to live
                   at  the premises.

  1. The requirements in this section go to the validity of the application made by a lessor. The respondent submitted that the requirements in this section are not a jurisdictional fact going to the width or limit of the Tribunal’s direction.

  2. There is no contention by the appellant that the Original Tribunal did not have jurisdiction to adjudicate the residential tenancy dispute or that the Tribunal did not have the statutory power to make an order terminating the tenancy. There was also no dispute that the tenant had not paid rent arrears or paid the ongoing rent as directed by the Conditional Termination and Possession Order.

  3. The respondent submitted that the appellant’s first ground of appeal should, therefore, be read as limited to the contention that the Original Tribunal fell into error by failing to expressly state, as a finding of fact, that the order had been breached.

  4. The Tribunal had access to the transcripts of the hearings on 20 February 2012, 21 May 2012 and 13 August 2012. The Tribunal accepts that the transcripts of proceedings are meant to inform and not be scrutinised on review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (per Brennan, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259.)

  5. The Tribunal is satisfied that the transcripts show that the Original Tribunal contemplated the material issues including whether the interim orders had been complied with and whether the lessor was able to show that the Conditional Termination and Possession Order had not expired and the condition had been satisfied due to the tenant failing to make the payments under that order. Each of the transcripts show that the Original Tribunal considered the Conditional Termination and Possession Order, the appellant’s payment and non payment history, her family situation and her financial situation. It was not in dispute that she has continued to live at the premises.

  6. The Tribunal accepts the respondent’s submission that ‘there is no requirement for a Tribunal or other administrative decision maker, in making a decision, to isolate every issue of fact and record a specific finding in respect of each of them. It is sufficient if the substantial or material issues are considered and that, on examining the decision maker’s reasons, the decision maker has kept those issues in mind and not ignored them.’[2]

    [2] Commissioner for Taxation (Cth) v Cainero (1988) 15 ALD 368

  7. As stated in paragraph 45 above, the Tribunal is satisfied that the Original Tribunal kept the material issues in mind on each of the occasions that the matter was before it and considered them. The Tribunal is satisfied that the Original Tribunal did not ignore the material issues.

  8. The Tribunal is also satisfied that there is no requirement that the Tribunal isolate every issue of fact and record a finding accordingly. In the present matter the Tribunal is satisfied that there was no contest in the evidence that the Conditional Termination and Possession Order had become operative as the tenant had not made the payments as required in that order and the appellant was continuing to live at the premises.

  9. It follows that the Tribunal is satisfied that the Original Tribunal did not act ultra vires in failing to make a finding of fact as claimed by the appellant.

  10. The Tribunal is satisfied that there is nothing in the RT Act which requires the Tribunal to give reasons for a decision or to formally state that a tenancy is breached to invoke its power to make a termination and possession order.

  11. Section 42A sets out the requirements for a lessor to meet when applying for a warrant for eviction when there has been a failure to comply with a conditional order. Likewise, sections 47, 48 and 49 of the RT Act set out those matters which the Tribunal has to be satisfied about before making termination and possession orders.

  1. The Tribunal refers to and repeats those matters set out in paragraph 44 and 48 above. The Tribunal is satisfied that there was no jurisdictional error in the Original Tribunal’s consideration of the application under section 42A of the RT Act.

  2. The Tribunal will consider the appellant’s submissions in relation to functus officio at the end of these reasons.

The second ground

  1. The appellant contends that the Original Tribunal had no jurisdiction to hear the respondent’s application for a warrant of eviction pursuant to section 42A of the RT Act because the ‘condition precedent’ in section 42A(1)(c) had not been satisfied. The appellant’s submission is that the conditions in the conditional order had been ‘breached’ as opposed to ‘satisfied’.

  2. The appellant referred to the explanatory memorandum for the Residential Tenancies Amendment Bill 2005 which gave section 42A its current wording and submitted that the intention of the legislation was to set out procedures for dealing with a failure to comply with a conditional order.

  3. Mr Emerson-Elliott opined that the wording of the section was diametrically opposed to the intention of the legislation as shown in the Explanatory Memorandum, in that the word ‘not’ appeared to have been left out of section 42A(1)(c) and there was a high probability that there was an error in the drafting of the legislation.

  4. The respondent submitted that the clear purpose contemplated by the enactment of section 42A was to allow the Tribunal, rather than the Registrar, to consider enforcing a warrant for eviction – the condition precedent for the enforcement being the failure to comply with a Conditional Termination and Possession Order.

  5. The respondent’s position is that, assuming the person to whom the conditional order was directed continues to live at the premises, all that is required for the Tribunal to consider in an application under section 42A is the existence of a failure to pay rent, or rent in arrears, as directed by the unexpired conditional order; in other words, the ‘condition’ referred to in section 42A is the ‘failure to pay rent that becomes payable.’ If the tenant did not comply with the obligations to pay rent, the condition upon which the termination was based has been satisfied.

  6. The respondent submitted that this interpretation was consistent with the statutory scheme in which conditional termination and possession orders are made – namely the purpose of the Residential Tenancies Act is the regulation of residential tenancies and it provides remedies for the failure of a tenant to meet their obligations to a lessor.

  7. Similar submissions from the appellant and the respondent in the current matter have been considered in an earlier Tribunal decision. In Fisher v Commissioner for Social Housing in the ACT (Residential Tenancies) [2010] ACAT 32 (‘Fisher’) General President Crebbin accepted submissions from the respondent (who was also the Commissioner for Social Housing in the ACT) and held at paragraph 26:

    “...It is true that there is tension between the wording of section 49(4) of the RT Act, the wording of the conditional order made in this matter (which is in the form usually used by the Tribunal for such orders) and the wording of section 42A(1)(c)of the RT Act; but it is not an irreconcilable tension.”

  8. In Fisher General President Crebbin (at paragraph 27) dismissed the appellant’s submissions in relation to the meaning of ‘condition’ for the purpose of section 42A as being inconsistent with the statutory scheme and giving rise to two obvious absurdities –

    (i)that a tenant who had failed to pay rent as required by an order can rely on his (or her) default as a basis to resist an order for termination and defeat the rights of the innocent party to the tenancy agreement, which is a contract; and

    (ii)a tenant who has paid rent as required by the terms of the conditional order is exposed to a termination order.

  9. The Tribunal has considered both parties’ submissions and noted the comments of the General President in Fisher. While the General President has described a ‘tension’ between the wording of section 49(4) and the wording in the Conditional and Termination Orders, this Tribunal is satisfied that appellant’s submissions urging the Tribunal to find that a breach of a conditional order has to be established add to the tension and fail to recognise the matters set out in the following paragraph.

  10. It is apparent to the Tribunal that section 42A is setting out a lessor’s requirements, one of which is to satisfy the Tribunal that the then tenant has not complied with the condition or positive obligation to pay rent and if the Tribunal is so satisfied then the condition on which the termination was based has been satisfied. It is not a question of whether or not the tenant has breached a condition; the issue is whether the tenant has not complied with a condition.

  11. The Tribunal rejects the appellant’s submissions in respect of the proper interpretation of section 42A. The Tribunal is satisfied that the respondent’s application for a warrant of eviction pursuant to section 42A of the RT Act was properly made and the Original Tribunal’s power to consider the application was validly invoked.

  12. Accordingly, the Tribunal finds that the second ground of the appeal discloses no error in the decision of the Original Tribunal and should be dismissed.

The Third Ground

  1. The appellant contends that the Tribunal erred in failing to consider and to give appropriate weight to new evidence that came before it at the hearing on 13 August 2012.

  2. The respondent submitted that this ground, in fact, consists of two parts:

    (i)failing to give appropriate weight to new evidence put before it on 13 August 2012; and

    (ii)failing to consider that evidence in respect of sections 49(3) and 49(4).

  3. The new evidence relied on by the appellant appears to be that:

    (a)     her partner had left her and had also left the premises and, therefore, the appellant had become entitled to a significant rent rebate, making her rent affordable such that the Tribunal could be reasonably satisfied that she could pay her rent arrears and her future rent as it fell due;

    (b)     the appellant was eligible for and about to receive a $2,000 taxation  refund, the whole of which would be paid to the lessor; and

    (c)     the appellant was seeking recovery of a significant amount of money owing to her by her former partner as his unpaid share of the rent over the past five years.

  4. The appellant submitted that the Original Tribunal did not consider this new evidence in the exercise of the discretion in subsections 49(3) and (4) of the RT Act; President Stefaniak was bound to consider this evidence and as he failed to do so he had acted unreasonably and this Tribunal should intervene.

  5. Mr Emerson-Elliott conceded that he had not, at the hearings under appeal, expressly asked the Original Tribunal to exercise the power or function in subsections 49(3) and 49(4) of the RT Act. He maintained that the Original Tribunal should have exercised this function without an express request and, further, that the exercise of this discretion must be considered under the Wednesbury test.

  6. He had brought this new evidence to that Tribunal’s attention[3] on 13 August 2012. He conceded that the Original Tribunal referred to the new evidence, however, submitted that it did not consider this evidence in terms of subsections 49(3) and 49(4) of the RT Act. In failing to take the new evidence into account it acted unreasonably in the terms of the Wednesbury test and determined the section 42B application without ever addressing the tenant’s eligibility for a condition termination and possession order.

    [3]     Page 85 Transcript lines 12 – 24, lines 35-36, Page 86 lines 6-10, Pages 86 lines 40-45, Page 87 lines1-2

  7. A lessor may apply for a warrant for failure to comply with a conditional termination and possession order under section 42A. Section 42B of the RT Act requires that such an application be decided “as if it were an application under section 49 for a termination and possession order.”

  8. The respondent submitted that the Tribunal was empowered to allow such an application if satisfied of the matters in section 42A(1) and that it was not under a duty to consider the exercise of the discretion in section 42B(4) which applies if the Tribunal decides to dismiss the application for a warrant.

  9. The respondent also submitted that the Tribunal was empowered to make a termination and possession order if satisfied of the matters set out in section 49(1). The respondent further submitted that the Tribunal was not under a duty to consider the exercise of the discretion in subsections 49(2) or 49(3) and 49(4) in the absence of any request that the discretion be exercised or in the absence of relevant and credible material pointing clearly to the relevance of that discretion.

  10. For this Tribunal to intervene, in accordance with the Wednesbury test, it would have to come to the conclusion that the Original Tribunal, in making the decision on 13 August 2011, took into account factors that ought not to have been taken into account or failed to take into account factors that ought to have been taken into account or made a decision that was so unreasonable that no reasonable authority would ever consider imposing it. The Tribunal cannot intervene to overturn the original decision simply because it disagrees with it.

  11. The Tribunal concurs with the respondent’s submission that it has long been accepted at common law that the weight given to various considerations is generally for the decision maker and it is not for a court or other review body to determine[4].

    [4] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

  12. It is readily apparent that President Stefaniak had presided over the hearing of this matter on 20 February 2012, 21 May 2012 and on 13 August 2012 and had available to him a wealth of evidence on which to base his decision. A perusal of the transcript of 13 August 2012 shows that the Original Tribunal referred to the evidence[5] (‘the new evidence’) that Ms Corkery’s partner had left the premises, she had had a rebate application processed and her rental account was in evidence, she was expecting to receive a $2,000 taxation refund which she said she would pay to the lessor and that she said she had put an application in for small claims to have her former partner pay half of the rent.

    [5] Pages 85 – 89 of Transcript

  13. The Original Tribunal also had evidence that Ms Corkery’s son, Zachary, who had caused her emotional and financial problems, and his girlfriend were planning to move out of the subject property. President Stefaniak asked the Appellant numerous questions about these matters. He looked at the entirety of Ms Corkery’s circumstances. At the two earlier hearings he had given her the opportunity to demonstrate she was able to sustain the tenancy.

  14. The reality is that the Original Tribunal on 13 August 2012, in considering Ms Corkery’s evolving situation, including the new evidence referred to above, declined to give her another adjournment and terminated her tenancy. This was not the outcome the appellant sought.

  15. As stated above, the Tribunal is satisfied that President Stefaniak turned his mind to the evidence of Mrs Corkery’s evolving situation over a period of six months, including the new evidence before the Tribunal on 13 August 2012, and he was not satisfied that her tenancy was sustainable.

  16. The Tribunal is satisfied that it was reasonably open to the Original Tribunal on the evidence before it to come to the decision it did on 13 August 2012. The Tribunal is certainly not satisfied that the Original Tribunal’s decision, on the evidence before it, was so unreasonable that no reasonable authority could ever have come to it.

  17. The appellant’s third ground of appeal fails.

Functus Officio

  1. Mr Emerson-Elliott conceded at the hearing that he had not raised functus officio as a ground of appeal until the hearing. He submitted it was implicit in the first ground of appeal as the Order made on 20 February 2012 was tainted as there were no relevant findings.  The first ground of appeal stated:

    “The Order of 13 August 2012 is invalid as there has been no finding by the Tribunal that the tenant either breached her tenancy agreement or breached a previous Order of the Tribunal. Such a finding is required before the Tribunal can invoke its power to make a Termination and Possession Order.”

  2. It appeared to the Tribunal that this ground of appeal was more specifically directed to the fact that the Original Tribunal had, on 20 February 2012, made an eviction order and stayed or suspended that order. Mr Emerson-Elliott’s submission was that the eviction order was a final order and at the end of the suspension the Original Tribunal was functus officio.

  3. The Tribunal has perused the transcript of the proceedings on 20 February 2012. Mr Emerson Elliott specifically raised the functus officio argument[6] in those proceedings. President Stefaniak resisted that argument by specifically stating that he regarded himself as part heard in the matter and that this was a procedure he had followed in numerous previous hearings describing it as “a step between a conditional order and a straight eviction.”

    [6] Transcript page 31 lines 26-27; page 33 line 6

  4. Ms Katavic submitted on 20 February 2012 that the Tribunal’s jurisdiction was enlivened by the application brought pursuant to section 42A and the Tribunal’s powers were set out in section 42B. She then said[7]

    “...if the Tribunal considers an opportunity for the tenant to perhaps demonstrate an ability to meet what has been conditions in the past, then that would mean that it dismisses the application under section 42A. But if it dismisses it, it has a variety of other things that it may do. And it is obliged to consider the application as if it were a termination and possession order under section 49, and therefore it has the power to suspend such an order pursuant to section 49(5).”

    [7] Transcript page 33 lines 24-30

  5. Ms Katavic submitted, in considering the lessor’s application for a warrant under section 42A, the Tribunal could allow the application as the lessor had met the requirements in section 42A and 42B (2)(a) and issue a warrant for eviction. If the Tribunal then wanted to afford the tenant an opportunity to demonstrate an ability to meet her obligations to pay the rent and the debt, the Tribunal would have available to it the power under section 53 of the ACAT Act to stay the order for a period up to 12 weeks and then relisting it.

  6. The Original Tribunal commenced the hearing on 20 February 2012; it did not finalise the hearing that day, or on 21 May 2012. It finalised the hearing on 13 August 2012 when orders were made, inter alia, terminating the residential tenancy agreement, giving possession of the premises to the lessor at 10:00 am on Monday 3 September 2012 and requiring the tenant and any other person claiming a right of possession through her tenancy to vacate the premises in accordance with the Order. These Orders also provided for the Registrar to issue a warrant for eviction at 10:00 am on Monday, 3 September 2012.

  7. It is apparent from the transcript of the hearing on 20 February 2012 that President Stefaniak was trying to assist the tenant to meet her rental obligations in order to demonstrate that her tenancy may be sustainable. Mr Emerson-Elliott conceded at the appeal hearing that he had not lodged an appeal from the decision of 20 February 2012 as he wanted to ensure that his client was able to continue in the tenancy for as long as possible and the orders of 20 February 2012 did that.

  8. On 21 May 2012, Ms Tarbet appeared for the Lessor. Mr Emerson-Elliott again represented the tenant. Ms Tarbet submitted that the Tribunal, on      20 February 2012, had exercised its functions in relation to the Lessor’s application for a termination and possession order on the basis of a failure to comply with the conditional order and the issuing of warrant for eviction and there was nothing further President Stefaniak could do. In other words, President Stefaniak was functus officio.

  9. It appears to the Tribunal from a perusal of the transcript of 21 May 2012 that President Stefaniak rejected Ms Tarbet’s submission stating what he had ordered on 20 February 2012 was –

    “...  effectively a Gallop or a Griffith bond where it’s hanging over your head and basically if you foul up you’ll be evicted.” [8]

    [8] Transcript page 64 lines 43-44

  10. On 21 May 2012 President Stefaniak found there was sufficient evidence, admittedly not on oath, to make him believe, with some further supervision the tenant was capable of sustaining a tenancy. He adjourned the matter part heard to 13 August 2012, continued the eviction order until 13 August 2012 and made other orders to assist the tenant meet her rent obligations.

  11. Neither party lodged an appeal from the decision of 21 May 2012.

  12. It was not until the appellant lodged the appeal from the Tribunal decision of 13 August 2012 that the appellant also sought to appeal the earlier decisions of 20 February 2012 and 21 May 2012.

  13. Division 7 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules) sets out the procedure for conducting appeals within the Tribunal. The time for filing appeals is set out in Rule 14 of the Rules. Rule 14(1) states:

    A notice of appeal to the tribunal must be filed in the tribunal not

    later than 28 days after the day the decision is made, or any further

    time the tribunal allows.

  14. The appeals from the decisions of 20 February 2012 and 21 May 2012 were made well outside the 28 day period. No application for leave to appeal either or both of these decisions out of time was lodged. Rule 22(2) of the Rules is mandatory; it provides

    (2) The person must apply to the tribunal for leave to appeal.

  15. In these circumstances, it appears to the Tribunal that the only course of action the Tribunal could take is to dismiss the appeals from the decisions of 20 February 2012 and 21 May 2012.

  16. It would, therefore, not be strictly necessary for the Tribunal to deal with the issue of functus officio. However, as both representatives for the parties had each, during the earlier proceedings, raised this issue and as Mr Emerson-Elliott again raised this issue at the appeal hearing it is desirable for the Tribunal to express its view on the matter.

  17. Upon the ACAT taking over the residential tenancies jurisdiction a number of provisions in the Residential Tenancies Act 1997 were recast or omitted to simplify or reorder the existing provisions. For example, section 104(l) which provided “any other order the tribunal considers appropriate” is now found in section 56(d) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).  This subsection states:

    56  The tribunal may, by order –
      
        ....................................        
         (d )take any other action in relation to an application –

    (i)  that the tribunal considers appropriate; and

    (ii) that is consistent with this Act or an authorising law.

  18. The Tribunal has already referred above to section 53 of the ACAT Act which provides the Tribunal with similar powers to make interim orders.

  19. It goes without saying that in taking such other action the tribunal must observe natural justice and procedural fairness.[9]

    [9] Section 7 ACAT Act

  20. The Tribunal has considered a similar issue in Bottles & Commissioner for Social Housing in the ACT Residential Tenancies [2011] ACAT 19, which was an appeal from a decision of President Stefaniak dated 13 January 2011, to make a termination and possession order and for a warrant to issue. In that case President Stefaniak had, prior to the final hearing on 13 January 2011, made similar orders in 2010 evicting the tenant, suspending the eviction, continuing the suspension, ordering the tenant to pay rent and arrears at specified rates, adjourning the matter part heard and granting the parties liberty to relist at short notice. On appeal, Acting Presidential Member Chenoweth found that in making these orders the Original Tribunal had done so to assist the appellant in meeting his obligations. Acting Presidential Member Chenoweth said, at paragraph 3 –

    “These steps taken by the Tribunal prior to 13 January 2011 were appropriate exercises of its power within its original jurisdiction.     These steps resulted in the making of the Order. It is the Order, not the individual steps leading to the making of the Order [of 13 January 2011] that is the subject of this appeal.”

  1. Acting President Chenoweth’s comments are equally applicable to the current appeal.

  2. It is clear from the transcripts that President Stefaniak considered he was dealing with the matter at first instance on 20 February 2012, 21 May 2012 and on 13 August 2012 and that the matter was not concluded before him until he made the orders the subject of this appeal on 13 August 2012. He had the relevant powers under the ACAT Act to take the course of action he did on 20 February 2012, 21 May 2012 and 13 August 2012.

  3. The Tribunal also notes that although Mr Emerson Elliott raised the functus officio argument on 20 February 2012 and Ms Tarbet raised the same argument on 21 May 2012, both representatives continued to participate in the proceedings without further objection or appeal. Indeed, Mr Emerson Elliott conceded that he was primarily interested in keeping his client, the tenant, in occupation for as long as possible.

Conclusion

  1. The Tribunal’s role is to address the questions of fact or law that have been raised and if an error is found the role is limited to correcting what decision should have been made at the time.

  2. Having considered all of the matters before it the Tribunal is satisfied and finds that:

    a.the appeals from the decisions made on 20 February 2012 and 21 May 2012 were lodged out of time and, accordingly, are dismissed; and

    b.the grounds of appeal disclose no error in the Original Tribunal’s decision on 13 August 2012.

  3. The appeal is dismissed.

  4. As the appeal is unsuccessful the Tribunal will make orders in relation to the warrant of eviction being exercised.

………………………………..

Ms E Symons

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      AA 12/39

APPLICANT:                KRISTY CORKERY

RESPONDENT:            COMMISSIONER FOR SOCIAL HOUSING

COUNSEL APPEARING:       APPLICANT:   

RESPONDENT:

SOLICITORS:  APPLICANT: Welfare Rights & Legal Centre

RESPONDENT: ACT Government Solicitor

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER: Ms E Symons, Presidential Member

DATE/S OF HEARING:  8 and 22 November 2012     PLACE: CANBERRA

DATE/S OF DECISION:    22 January 2013                PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS:


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