Faull v Commissioner for Social Housing for the ACT - [2013] ACTSC 121

NORMAN FAULL V COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT AND RESIDENTIAL TENANCIES TRIBUNAL
NORMAN FAULL V COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT
[2013] ACTSC 121 (26 June 2013)

LANDLORD AND TENANT – Termination of the Tenancy – leave to appeal under s 125 of the Residential Tenancies Act 1997 (ACT) – leave granted

APPEAL – General Principles – In General and Right of Appeal – appeals on questions of law – principles determining the scope and consideration of an appeal on questions of law

APPEAL – General Principles – In General and Right of Appeal – appeals on questions of law – requirement for clear identification of questions of law

ADMINISTRATIVE LAW – Prerogative Writs and Orders – writ of certiorari – availability of, under s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) – common law power to issue orders in the nature of certiorari available and entrenched

LANDLORD AND TENANT – Termination of the Tenancy – termination under s 51 of the Residential Tenancies Act 1997 (ACT) – meaning of that section – differences between s 51 and other termination provisions – requirement of intention or recklessness – meaning of ‘injury’ for s51(c)

ADMINISTRATIVE LAW – Particular Tribunals or Bodies – Residential Tenancies Tribunal – jurisdictional facts required for termination of tenancy under s 51 of the Residential Tenancies Act 1997 (ACT) – failure to apply the statutory test of intention or recklessness – failure apparent from statement of reasons – jurisdictional error made – decision set aside

ADMINISTRATIVE LAW – general principles – content and identification of jurisdictional facts and error – particular requirements for considering the actions of a tribunal

ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT)
Australian Capital Territory (Self-Government) Act 1988 (Cth)” (2005), s 48A
Housing Assistance Act 2007 (ACT), s 9
Legislation Act 2001 (ACT), s 142
Migration Act 1958 (Cth), s 430
Residential Tenancies Act 1987 (NSW), s 68
Residential Tenancies Act1997 (ACT), ss 8, 36, 47-52, 106, 125, Sch 1
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148
Workmans Compensation Ordinance 1951 (ACT)

Court Procedures Rules 2006 (ACT), rr 3553-4, 5052(1)(d)(i)

Community Law Reform Committee, Private Residential Tenancy Law, Report No 8 (1994)
David Mossop, “Section 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth)” (2005) 16 Public Law Review 213
Explanatory Memorandum, Residential Tenancies Bill 1997 (ACT)
Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 4^th ed, 2009), 826-831

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Commissioner for Housing v Key [2004] ACTCA 17
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No. SC 969 of 2008
No. SCA 96 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 26 June 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 96 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:NORMAN FAULL
Plaintiff

AND:COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT
Defendant

ORDER

Judge:  Refshauge J
Date:  26 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

Leave to appeal against the decision of the Residential Tenancies Tribunal on 12 October 2008 be granted.

The appeal against the decision of the Residential Tenancies Tribunal on 12 October 2008 be upheld and the decision be set aside.

The defendant pay the plaintiff’s costs.

The parties be heard as to any other orders to be made.

IN THE SUPREME COURT OF THE     )
  )          No. SC 969 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:NORMAN FAULL
Plaintiff

AND:COMMISSIONER FOR SOCIAL HOUSING FOR THE ACT
First Defendant

RESIDENTIAL TENANCIES TRIBUNAL

Second Defendant

ORDER

Judge:  Refshauge J
Date:  26 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

The application for an order in the nature and to the effect of certiorari be dismissed.

The plaintiff pay the first defendant’s costs excluding any costs of any of the appearances in court in respect of the application.

INTRODUCTION

Under the Residential Tenancies Act 1997 (ACT) (the RT Act), a residential tenancy cannot be terminated by the landlord before the term of the tenancy ends without an order of a tribunal, unless there is agreement or abandonment by the tenant: s 36 of the RT Act. Prior to 2009, the relevant tribunal was the Residential Tenancies Tribunal; after that it was the ACT Civil and Administrative Tribunal: See ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT).

On 12 October 2008, the Residential Tenancies Tribunal (the RT Tribunal), made an order terminating the tenancy that the plaintiff, Mr Norman Faull, had with the defendant, the Commissioner for Social Housing of the ACT (which was established under s 9 of the Housing Assistance Act 2007 (ACT)) and requiring him to vacate the premises, in default of which the Registrar of the RT Tribunal was ordered to issue a warrant of eviction.

Mr Faull has now commenced two proceedings in this Court, challenging these orders. The first proceeding is an application for leave to appeal under s 125 of the RT Act (as it was at the time of the decision of the RT Tribunal). Such an appeal may only be taken on a question of law. The second proceeding is an application for judicial review, seeking prerogative relief in the nature of a writ of certiorari to quash the orders of the RT Tribunal.

THE PROCEEDINGS

On 14 October 2008, two days after the RT Tribunal’s decision was made, Mr Faull, through his lawyers, the Welfare Rights and Legal Centre Ltd, sought a stay of the RT Tribunal’s order. I made an interim stay order on that day.

The next day, I dismissed the application for a stay, noting that arrangements had been made for short-term accommodation for Mr Faull and that he would have until at least the end of the week before eviction action would be taken.

On 17 October 2008, Higgins CJ declared that the stay imposed on 14 October 2008 had been dissolved.

On 10 November 2008, Mr Faull applied for leave to appeal against the orders of the RT Tribunal. That application came before Gray J on 9 December 2008. His Honour then gave leave for the draft Notice of Appeal to be amended and, in effect, directed that the application for leave be heard as on the appeal. That is to say, the parties were invited to present as full an argument as would be put on the hearing of an appeal so that the appeal could be determined at the same time if leave were granted. See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 16. Appropriate directions were given to effect that.

On 13 November 2008, Mr Faull sought judicial review of the RT Tribunal’s decision. Mr Faull’s Originating Application sought an order in the nature of a writ of certiorari to quash the orders of the RT Tribunal and a declaration that, in making those orders, the RT Tribunal had exceeded its jurisdiction. The application was supported by an affidavit by Jaleh Johannessen made the same day.

The application for leave to appeal came on for hearing before me on 1 April 2009. It was agreed by the parties, and I accepted, that the hearing of the application for leave should be heard in such a way so as to enable the Court to determine the appeal if leave were granted.

As agreed by the parties also, I heard the judicial review application concurrently. On 2 April 2009, I reserved my decision.

THE FACTS

A number of matters, such as dates, seem to be inaccurate in the documentation of the RT Tribunal such as in its reasons and in the statement of particulars of the applicant. Where source documents are inconsistent with the former documents, I prefer, for the purpose of these reasons, the latter.

While perhaps of no great consequence, such errors are somewhat troubling and do suggest a lack of attention to detail, which affects how I should address the subject matter of these proceedings.

For example, the reasons of the RT Tribunal refer, as do the applicant’s statement of particulars (from which the RT Tribunal may have taken that fact), to the tenancy as having commenced on 12 January 2007 (though the RT Tribunal says 2006), whereas the “Sign-Up Appointment” sheet addressed to Mr Faull refers to the fact that the Tenancy Agreement is to be signed on 15 January 2007 and the Tenancy Agreement itself is dated 15 January 2007; it also expressly states that the tenancy is to start on 15 January 2007.

Accordingly, I find that on 15 January 2007, Mr Faull, having signed a Tenancy Agreement on that date, became a tenant of the Commissioner for Social Housing of the ACT (the Commissioner) in what is commonly called public housing. He was granted a tenancy of a unit in Gordon in a housing complex where there are a number of units. Most of the tenants of the other units are elderly.

The Tenancy Agreement included, of course, the standard residential terms set out in Sch 1 of the RT Act (as required by s 8(1) of that Act) which are, by that section’s operation, included in all residential tenancy agreements. These included cl 70 as follows:

70. The tenant must not:
(a)use the premises, or permit them to be used, for an illegal purpose to the detriment of the lessor’s interests in the premises; or
(b)cause or permit nuisance; or
(c)interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises.

There is also, in the standard tenancy terms of all Tenancy Agreements, a requirement for the tenant to be responsible for visitors or guests. This is set out in cl 73 as follows:

73.The tenant is personally responsible for the actions or omissions of visitors, guests or other people on the premises if:
(a)the action or omission would if performed by the tenant have constituted a breach of this tenancy agreement; and
(b)the person is on the premises with the permission of the tenant.

As for termination other than for the non-payment of rent, standard term cl 93, also included in the Tenancy Agreement, is as follows:

93The tribunal may order the termination of the tenancy and eviction of the tenant on the ground of breach of the tenancy agreement in the following circumstances:
(a)the lessor must serve a written notice requiring the tenant within 2 weeks after the day of service to remedy the breach if it is capable of remedy;
(b)if the breach is not remedied within 2 weeks after the day of service or if the breach is not capable of remedy —the lessor must give a notice to vacate the premises within 2 weeks after the date of service of the notice to vacate;
(c)if the tenant does not vacate the premises within the period of 2 weeks after the date of service of a notice to vacate—the lessor may apply to the tribunal for an order terminating the tenancy and for the eviction of the tenant;
(d)if the tenant breaches the terms of the tenancy on 3 occasions on any ground—on the 3rd occasion the lessor may serve a notice to vacate and need not give the tenant 2 weeks to remedy the breach.

In addition, particularly relevant to these proceedings, s 51 of the RT Act relevantly provided for termination by order of the RT Tribunal in certain circumstances, such as follows:

On application by a lessor, the tribunal 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—
...
(c)if the lessor is a corporation—injury to a representative of the corporation or a member of a representative’s family; or
(d)serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises.

Paragraph (c) is relevant because s 9(2) of the Housing Assistance Act provides that the Commissioner, Mr Faull’s lessor, is a corporation.

Complaints were received from time to time from other nearby tenants about the conduct of Mr Faull. The first letter of complaint in the Appeal Book is dated 7 January 2007 but, as that is prior to Mr Faull’s tenancy, I assume it was an error and that it was probably written on 7 February 2007. This is reinforced because the applicant’s statement of particulars alleges that it was received on 9 February 2007. Other complaints were received in February and March. They raised complaints about his conduct, especially when intoxicated, of inappropriate behaviour with neighbours, abuse, name calling and offensive language, loud offensive music, constant drunkenness and swinging of bats and sticks by him.

On 23 March 2007, a notice was served under cl 93 of the Tenancy Agreement requiring Mr Faull to remedy his behaviour. Further notices were served on 1 May 2007 and 30 August 2007.

On 29 November 2007, a Notice to Vacate was signed by a delegate for the Commissioner and issued to Mr Faull.

Curiously, the affidavit of service of the notice deposes that this Notice to Vacate was served on 27 November 2007 at 12:00 o’clock. Of course, there cannot be service of a notice that had not then been made. This is another of the errors to which I earlier referred.

The Commissioner then applied to the RT Tribunal by application dated 16 September 2008 for termination of the Tenancy Agreement and for a “termination and possession order to have effect as a warrant.” The delay in making the application was not explained, though, for reasons referred to below, the Notice to Vacate was not directly relevant to the application.

The statement of particulars accompanying the application specified that the application was made under s 51(c) and (d) of the RT Act. It set out a series of complaints received by the Commissioner. They may be summarised as follows:

9 February 2007 - Mr Faull was alleged to have made inappropriate contact with a female tenant when he was drunk.

21 February 2007 - Mr Faull was alleged to have been harassing female tenants who lived on their own including standing in front of his door yelling abuse at other tenants.

20 March 2007 - Mr Faull was alleged to have shouted abuse, threatened to attack the complainant, used offensive language, played loud offensive music and swung bats and sticks.

22 March 2007 - Mr Faull was alleged to have shouted and screamed at “all hours of the day and night”, threatening other residents.

23 March 2007 - Mr Faull was alleged to have acted in an offensive and inappropriate verbal and physical manner.

26 March 2007 - Mr Faull was alleged to have threatened to kill all the cats in the complex, and had been “yelling and shouting” in a manner that was very distressing to the complainant.

23 April 2007 - Mr Faull was alleged to have had visitors who did “burnouts” in their cars at the complex and spun the wheels of their cars when driving in the area of the complex. Mr Faull was also alleged to have knocked on doors of residents in the complex asking for money. These activities were said to have disturbed the sleep of residents on the weekend.

7 August 2007 - An officer of the Commissioner visited the complex and recorded that she saw two people who appeared to be drunk, arguing on the road and common areas near Mr Faull’s unit and that one of them then entered Mr Faull’s unit. Mr Faull spoke to the officer and his speech was slurred and his voice raised and, though not aggressive, he appeared to be drunk.

24 August 2007 - The same officer again visited the complex and saw the same two persons were walking through the complex yelling and one, a male, was swearing loudly. The other, a female, appeared distressed. The officer was told by other residents that this behaviour by visitors to Mr Faull’s unit was constant and that they were fearful for their safety.

24 October 2007 - Mr Faull was alleged to have entertained visitors and he and his visitors were screaming, yelling and slamming doors. This had caused visitors to the complainant’s unit to leave when this behaviour starts.

29 November 2007 - An officer of the Commissioner met with residents of the complex who complained of loud music from Mr Faull’s unit at all hours of the day and night, of swearing and yelling heard from the unit, of alleged use of the unit to sell drugs with a large number of cars daily visiting the property and police attendance “continually” at the property as a result, and of Mr Faull and his visitors routinely abusing neighbours. Although it was said Mr Faull swears, he was said to be generally quiet by himself but when he has visitors, which he does “all the time”, the disturbances escalate.

18 December 2007 - Mr Faull was alleged to have approached the complainant after dark and made obnoxious comments.

4 March 2008 - Mr Faull was alleged to have left a large dog unattended at the unit after he was taken to hospital by ambulance requiring neighbours to feed the dog.

13 March 2008 - Mr Faull was alleged to have used bad language and made threats of violence including death threats to neighbours. It was said that police had attended on many occasions.

The application was listed for directions on 22 September 2008. At that hearing, Mr Faull gave an undertaking to the RT Tribunal “that he would refrain from contact with his neighbours and in particular would avoid any loud, aggressive or abusive behaviour”. The RT Tribunal was told by Mr Faull that he was “off the alcohol”. As a result, the hearing of the application was adjourned to 1 October 2008 and directions were made for preparation for the hearing.

On 30 September 2008, the hearing date was, on Mr Faull’s application, vacated and the hearing further adjourned to 8 October 2008. The hearing then proceeded on that date.

It proceeded promptly, the RT Tribunal directing that the parties “dispense with opening submissions, et cetera”. The Member said that she had “read the file. I have a fair notion of what your argument is. I’ve seen the faxes that have been exchanged recently and I’ve had a chance to look through now your letter [from Ms Johannessen, counsel for Mr Faull] dated 7 October”. Neither the faxes nor the letter of 7 October were in the Appeal Book. Thus, the issues before the RT Tribunal must be inferred rather than expressly stated by the parties.

The RT Tribunal accepted that at issue was s 51(c) and (d) of the RT Act, and, correctly, declined to hear about the notices to remedy and to vacate as “not relevant to these proceedings”.

EVIDENCE BEFORE THE RT TRIBUNAL

Counsel for the Commissioner, Mr G McCarthy (who also appeared in the proceedings before me), tendered the documents attached to the application, being the Tenancy Agreement, the various letters of complaint (most significantly redacted to be in part incomprehensible), records of complaints and diary notes of complaints received and visits to the premises by officers of the Commissioner, communications from Directions ACT, a drug and alcohol rehabilitation agency that had been helping Mr Faull, and, curiously in the light of the RT Tribunal’s ruling, the notices to remedy and to vacate.

I note that the annexure to the Tenancy Agreement, setting out the standard terms, was only half copied; it was clearly a double-sided document, but only one side had been copied. Mr McCarthy supplied the other pages to the RT Tribunal but, for some reason, these were not included in the Appeal Book. Since these seemed only to contain the standard terms required by the RT Act, it is probably of no prejudice.

The first witness called before the RT Tribunal was an officer of the Commissioner, Ms Anna Howell. A statement she had made was tendered. In it, she stated that:

I am aware that a number of Mr Faull’s neighbours are very fearful, if not petrified, of him with some of them not leaving their homes because they are scared of him ...
Most of his neighbours are elderly people and are finding it extremely distressing to put up with his behaviour toward them.

In her statement, she said that she had visited the complex at least a dozen times and had seen Mr Faull intoxicated on a number of occasions. She said Mr Faull had also made telephone calls to her in which he sounded intoxicated.

She recounted an incident on 11 September 2008 when, as she walked past Mr Faull’s unit, he “was yelling out and threatening to ‘damage’ me and other people at the complex”. She added later that he was intoxicated at the time. He first shouted “I’m sick of people looking into my property, you better watch out”. He then came out and made the threats.

As she walked past Mr Faull’s unit when returning from the visit she was making, Mr Faull apologised for yelling at her. He did, however, shout at some other residents. Ms Howell then went to visit another resident and left the complex.

She said that following the incident she “was extremely distressed and fearful for [her] safety”.

She also referred to disturbances reported at the complex, some of which she said had been caused by visitors to Mr Faull’s property, but most by Mr Faull. She made reference to statements made by Mr Faull to his neighbours that he had a serious criminal history.

She expanded on these matters in her oral evidence, but, in the circumstances, I do not need to detail that, as most was not in issue and much not directly relevant to the question in these proceedings.

She did recount some serious threats Mr Faull had made, stating that, at the time, he was intoxicated.

As to Mr Faull threatening her on 11 September 2008, she said it made her very distressed; she became lachrymose and had been anxious and suffered high stress levels since then. This had, she said, led to her having problems concentrating, losing sleep and having to seek counselling. She said she remains anxious. She has not been permitted to return to the complex, but in any event, would not do so as she was concerned for her safety.

She had been referred to Davison Trahaire, the Department’s Employee Assistance Provider, “for debriefing and sessions”. She said that at the time of giving evidence she was “travelling ... [u]p and down”.

In cross-examination, Ms Howell agreed that she had made an error in her statement about the number of the unit in which Mr Faull resided.

Ms Howell said that, in the twelve visits she had made to the complex, she had at times seen Mr Faull and she could not recall him being aggressive towards her, apart from, obviously, on 11 September 2008. It was also pointed out to her that, despite his shouting at her, she did continue with her visit to another resident; she explained:

I’m a professional and I knew that the neighbour really needed to speak to me and that I needed to conduct that visit.

She said she was still scared of Mr Faull and was so even when he apologised to her.

She said that she did not visit a general practitioner after the visit and did not obtain “a medical certificate”, presumably a certificate for sick leave purposes. There was no evidence that she needed to or did take any time off work. That is, of course, not to say that the incident was not distressing or that it was acceptable behaviour by Mr Faull. Indeed, he acknowledged that it was unacceptable by his apology. The issue is the nature of the effect of the incident on Ms Howell, as will become evidence later in these reasons.

Ms Howell was also asked about the circumstances of her walking past Mr Faull’s unit. She said she had seen his curtains were tied up high, which she thought was odd. It was suggested that she could see into his property, though she denied that she was inspecting it. The RT Tribunal accepted that Ms Howell glanced at Mr Faull’s window and that his yelling was a response to that.

Ms Howell was unsure about whether she had even held a conversation with Mr Faull when he was not intoxicated.

In re-examination, Ms Howell explained what she did when she first walked past Mr Faull’s unit on 11 September 2008. She said she did not stop and look through the window, she:

glanced, saw [Mr Faull] in my peripheral vision, glanced and glanced back and kept walking.

A number of other witnesses were called. It is only necessary and appropriate to summarise their evidence as showing:

(a) Mr Faull was often drunk, some said on a daily basis;

(b) he was often aggressive and threatening, especially when “fully drunk”, and would make threats and swear;

(c) these events happened frequently, “nearly every day”;

(d) the swearing probably happened every day when Mr Faull was at home;

(e) sometimes the swearing was directed at individual residents and to their faces;

(f) Mr Faull would sometimes go to residents’ homes and bang on their doors; sometimes this would happen on a weekly basis;

(g) the swearing was often angry in tone and abusive; sometimes it was threatening;

(h) the threats made by Mr Faull included threats to kill;

(i) most of the week, Mr Faull would have visitors;

(j) some of the visitors would stay till late at night and cause a disturbance, such as by swearing loudly and playing loud music;

(k) the behaviour of Mr Faull’s visitors would interfere with the ability of residents to sleep in their units;

(l) when Mr Faull was not intoxicated, his behaviour was not as bad, but when he was drunk it was pointless trying to communicate with him;

(m) sometimes Mr Faull’s visitors would arrive by car, but this was not more than fortnightly and there would be periods of some months when it would not happen; when they did, they would “rev” the cars, making a lot of disturbing noise;

(n) the residents were afraid of Mr Faull and his threats were taken seriously;

(o) sometimes Mr Faull would be violent, smashing doors and smashing lights with a bat;

(p) these activities frightened residents of the complex and made them feel as if they could not live in the units anymore; and

(q) the closest neighbours could not use their backyard because it exposed them and the grandchildren to Mr Faull’s inappropriate behaviour.

On cross-examination, the following was also clear:

(i) some of the residents would look into Mr Faull’s residence to see what was happening there;

(ii) at least some neighbours thought there was never a time when they saw him that he had not at least had a few drinks;

(iii) no weapons such as knives, guns or swords were seen in the possession of Mr Faull by any neighbour;

(iv) Mr Faull had never physically touched any of the neighbours violently; and

(v) the Commissioner had, when the proceedings in the RT Tribunal were in contemplation, asked residents to keep records of relevant incidents.

The general practitioner for one of the residents also gave evidence in which she described the problems for which the resident had consulted her. Fearing for her safety because of problems with “her neighbour”, the resident was experiencing anxiety. Her neighbour was never expressly identified as Mr Faull. The doctor prescribed medication, though more recently, the resident had required extra medication to settle her down.

Mr Faull gave evidence. He explained that when he moved into the complex his relations with neighbours was good; he “got on really well with them”. He said that things changed when his daughter and “a mate” came as they were “a bit loud”.

He said he told them to keep the noise down. He also said that hardly any cars came to his property. He said he tried to keep the noise down after he received a notice from the Commissioner. He agreed that he drank a lot of alcohol and said that when he did, he went “into blackouts” which meant that he did not know what he did until people later told him.

He agreed that he yelled at Ms Howell and said that he apologised, though he thought he had a blackout at the time and was a bit unsure. He said he had respect for women; he had never hit a woman and did not intend to do so.

He also agreed that he had screamed at neighbours. He said he was usually happy but “as soon as these other people come in and out of my house, standing over me, I just lost it”.

He identified some of his visitors as troublemakers and asked them to stay away. He had tried to control them. He said that when one of his visitors abused a neighbour he told the visitor to “keep it down”; he could not recall abusing the neighbour himself. Had he not been intoxicated, he would have recalled whether it happened or not. He had also asked a visitor to leave when they became too noisy.

He said he knew that the neighbours were upset with him and said “I do not blame them”. He said he intended to change his life, to give up alcohol. He had started counselling with Directions ACT, a drug and alcohol rehabilitation agency operating in Canberra.

A number of the threats he was said to have made were put to him by his counsel and he said he could not remember making them. He denied swearing when he was sober. He described his neighbours as “nice people” to whom he would wish to apologise.

In cross-examination he said that the disturbances that had been described by the witnesses had now stopped, though they had been going on in the last few months. He also denied asking the owners of the cars, which brought visitors, to arrive and leave in a noisy way. He agreed that some had been noisy but said they had recently quietened down.

He said he was “born an alcoholic” but that he had been “slowing right down off it”

In re-examination, he admitted that he had tried to rehabilitate his alcoholism before. The recent lapse was because of the break up of a relationship in which he was involved. He had a friend who was helping him. She had “been off the grog” herself for some months. He had also gained help from Directions ACT where he had been seeing a counsellor for some time.

DECISION OF THE RT TRIBUNAL

Counsel for both parties made oral submissions and the RT Tribunal reserved its decision. I do not need to summarise the submissions, though some of the issues in them will need to be referred to in the consideration of this matter.

On 12 October 2008 (curiously, a Sunday) the RT Tribunal decided to terminate the tenancy at 10:00 am the next day. This is not “immediately”; the RT Tribunal may not have power to delay the termination.

It also decided that Mr Faull was to vacate by 4:00 pm the following day, namely 14 October 2008, and, in default, a warrant of eviction was to be issued by the Registrar; the RT Tribunal dispensed with need for service of the warrant.

Ms Johannessen deposed, in her affidavit in support of Mr Faull’s application for leave to appeal, that she did not actually receive the decision until 14 October 2008. This, however, appears to mean a statement of reasons, which was sent to her by fax on that day. Curiously, the statement of reasons, to which the orders were attached, was dated 12 October 2008.

On 14 October 2008 I ordered a stay of the decision of the RT Tribunal, although once the Commissioner undertook not to execute the warrant for another two days, Mr Faull having organised short-term accommodation in the meantime, I dismissed the application for a longer stay (see [4]-[5]).

The sealed copy of the decision of the RT Tribunal was not received by Mr Faull’s lawyers until 20 October 2008.

REASONS OF THE RT TRIBUNAL

It is not necessary to set out the reasons in full. They were comprehensive. I shall refer to some particular aspects of them in due course. They may be summarised as follows.

The RT Tribunal confirmed that Mr Faull had entered into a Tenancy Agreement with the Commissioner, though the date was incorrectly stated. It then recited the application and set out the relevant portions of s 51 of the RT Act, as set out above (at [18]).

In the reasons, the RT Tribunal recounted the progress of the proceedings and then recorded in summary the evidence at the hearing. It referred to the documents received in evidence, including the various complaints. Curiously, the RT Tribunal referred to the Notice to Vacate, though it had already at the hearing held, properly, that it was irrelevant. The reasons also noted, though it did not summarise the contents of, the witness statements it had received.

It did refer to a number of documents not reproduced in the Appeal Book. I note that the RT Tribunal declined to mark as exhibits some documents tendered to it. This is undesirable. As I remarked in Grooms v Toohey (2012) 7 ACTLR 1 at 6; [24], though in the context of sentencing proceedings in the ACT Magistrates Court, the marking of documents and items received in evidence is highly desirable so as to make clear what has actually been received in evidence and what has not. This also makes the preparation of an Appeal Book easier and less contentious.

The relevant documents were described as “documents filed prior to hearing” and it was not at all clear that they had all been admitted in evidence; the transcript was quite unclear about a number of them.

After the above, the RT Tribunal then summarised the oral evidence, which I have earlier summarised myself above (at [32]-[60]).

In the reasons, the RT Tribunal then set out in précis what had to be shown under s 51 of the RT Act. It was stated that the Commissioner submitted that Ms Howell had been injured and noted, correctly, that this had to be proved on the balance of probabilities. Such injury, it was noted, could be physical or mental, and the reasons stated that “[s]tress caused by threats or abuse is such an injury”. The RT Tribunal then referred to the decision of Department of Housing v Johnstone [2001] NSWRT 85 which had been relied on by Ms Johannessen, who acted before the RT Tribunal for Mr Faull. The RT Tribunal, however, preferred Department of Housing v Crook [2003] NSWCTTT 268 and stated that it was satisfied that Ms Howell had been injured.

It further stated that Mr Faull’s conduct “is not likely to change”. It also stated that his conduct “constitutes a serious and continuous interference with the quiet enjoyment of the premises by Mr Faull’s neighbours”. The basic concept of quiet enjoyment was set out by the RT Tribunal in its reasons with reference to decisions which had considered what constituted interference with the quiet enjoyment of an occupier of their premises.

The RT Tribunal also considered that, following the decision in Eastman v Commissioner for Housing for the Australian Capital Territory (2006) 200 FLR 272, it had a discretion, on finding that the factors in s 51(c) and (d) made out, as to whether to order termination, but it noted that the discretion had to be exercised in the light of the purpose and scope of the RT Act.

The factors urged on behalf of Mr Faull by Ms Johannessen were also set out, including that s 51 of the RT Act was not the appropriate provision under which the Commissioner should have made the application for termination of the tenancy, particularly as Mr Faull was attempting to deal with his alcohol problem, and that the Commissioner is the “landlord at last resort”.

The RT Tribunal concluded that the interests of the neighbours and the lessor outweighed these factors and, accordingly, made the orders for termination and eviction as referred to above (at [2]).

THE CURRENT APPLICATIONS

Leave to appeal on a question of law(a)

As I have noted above (at [7]-[8]), there were two applications before me. As to the first, Mr Faull sought leave to appeal under s 125 of the RT Act. Any appeal under that section must be on a question of law.

The nature of an appeal on a question of law has recently been addressed by Penfold J in CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96 at [15]-[28].

It is clear from the authorities cited by her Honour that the questions of law need to be clearly identified, as pointed out by French CJ, Gummow and Bell JJ in Osland vSecretary, Department of Justice[No 2](2010) 241 CLR 320 at 333; [21].

The questions of law were identified in the draft Amended Notice of Appeal as follows:

(a)Does the element of intent in s 51 of the Residential Tenancies Act 1997 require satisfaction as to the intention element in relation to:
(i)the doing of acts which are alleged to give rise to the outcomes specified in the paragraphs of s 51; or
(ii)the achievement of the outcomes referred to in those paragraphs?

(b)If the Residential Tenancies Tribunal makes an order under s 51 of the Residential Tenancies Act 1997 without being satisfied of the intention of the tenant to achieve the outcomes specified in the paragraphs of s 51, has it acted beyond its jurisdiction?
(c)If the Residential Tenancies Tribunal makes an order under s 51 of the Residential Tenancies Act 1997 without making any finding in relation to the intent element in s 51, has the Tribunal complied with its obligation to give reasons for its decision under s 106 of the Act?
(d)Did the Tribunal err in holding that stress caused by threats or abuse is an injury within the meaning of s 51(c) of the Residential Tenancies Act 1997?
(e)Did the Tribunal err in failing to hold that in the case of mental harm alleged to constitute injury within the meaning of s 51(c) of the Residential Tenancies Act 1997 the victim must suffer from a recognisable psychiatric illness?

(i) The need for and consideration of leave to appeal

Master Harper explained in Eastman v Commissioner for Housing in the Australian Capital Territory [2008] ACTSC 1 at [15] some of the justification for a need for leave. His Honour then referred to the fact that the test for leave has often had regard to the guidelines used for the consideration of leave to appeal from interlocutory decisions, guidelines usually traced to the seminal consideration of that issue in Niemann v Electronic Industries Ltd [1978] VR 431. Of course, the RT Tribunal orders will usually be final orders and the considerations will be somewhat different, though there is no reason in s 125 of the RT Act to limit such appeals to final orders.

In Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 335-7; [8]-[17], Phillips JA, with whom Tadgell and Batt JJA agreed, carefully analysed in some detail the considerations relevant to the grant of leave for an appeal on a question of law from the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the substantive provisions of which are relevantly similar to s 125 of the RT Act.

His Honour noted that the discretion to grant leave, provided for by the legislature in “untrammelled terms”, cannot and should not be fettered. Judicial consideration can only provide guidelines, as described by the High Court in Norbis v Norbis (1986) 161 CLR 513 at 519, 533-4, 537-8.

The guidelines developed by Phillips JA in Hulls were helpfully set out in Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48 at 55-6; [28]-[29] by Warren CJ, with whom Chernov JA and Bell AJA agreed, in the following summary:

·whether leave is granted or not must always depend upon the justice of the particular case;
·if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;
·the applicant need not establish an error below — that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
·although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
·once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
·where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.

Subject to the emphasis of Phillips JA that the guidelines laid out are not hard and fast rules, he states:
When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
[footnotes omitted]

As would be expected, this approach is regularly followed in Victoria but also in Western Australia in Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361 at 373; [18] and subsequently. This is the approach I propose to adopt. It is, in my view, appropriate for this jurisdiction.

I note that in Eastman v Commissioner for Social Housing (2011) 252 FLR 278 at 287-9; [53]-[58], the Court of Appeal considered the proper test for leave to appeal from the RT Tribunal. The Court there noted that Niemann v Electronic Industries Ltd had been followed in this Court and, with an important qualification, in the Federal Court.

The Court of Appeal, however, did not appear to come to a final view, saying (at 289; [58]):

The plain intention of the legislature is to provide a filter for appeals from the tribunal. What is tolerably clear from the plain words of the section is that it is insufficient to point to a question of law. Something more is required. We agree with the primary judge that it is necessary for an applicant to demonstrate that he or she has at least an arguable case, that the tribunal has erred in its resolution of a question of law and that the result of the error would have been more favourable to him or her. Otherwise, it would be futile to grant leave. We are not convinced that whether the applicant would suffer a substantial injustice if the decision were allowed to stand is irrelevant but, absent an arguable case, it will certainly not justify a grant of leave. Nothing in Niemann suggests otherwise. We did not, however, hear full argument on this question and it is unnecessary to resolve it in this case.

I do not consider anything said by the Court of Appeal is inconsistent with the guidelines to which I have referred. Given that, and in the light of the last sentence of the passage I have quoted from the Court of Appeal, I consider that I should adopt the approach of the Victorian and Western Australian Courts of Appeal.

(ii)Question of law

So far as an appeal on a question of law is concerned, the courts have set out some principles to describe the scope and consideration of such an appeal. They may be summarised as follows:

(a) The function of the Court in such an appeal “is limited to the identification of an erroneous answer in respect of a question of law”: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481 (B & L Linings) at 513; [150].

(b) The question of law to be raised on appeal should be carefully drafted and precisely identified as a pure question of law: Edgley v Federal Capital Press of Australia Pty Ltd (1999) 139 ACTR 1 at 2; [3]; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60; [18].

(c) Where an appeal lies “on a question of law”, the subject matter of the appeal is the question or questions of law, as stated in the Notice of Appeal: Comcare v Etheridge (2006) 149 FCR 522 at 527; [13]-[16]. The ambit of the appeal is confined to that question or those questions: Brown v Repatriation Commission (1985) 7 FCR 302 at 304. It is for this reason that it is important to frame the questions carefully. In an appropriate case, the court may itself be prepared to frame the question of law in order to found its jurisdiction: Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300 at 303; [16].

(d) The appeal does not authorise the court to engage in fact finding on the merits of decisions of the tribunal: B & L Linings at 494, [38]; 498, [55]; 503-4, [75]-[77]; Avery v Registrar of Births, Deaths and Marriages (2010) 79 NSWLR 354 at 360-1; [23].

(e) The power of the Court does not extend to making an evaluative judgement based on primary facts as found by the tribunal from which the appeal is taken or exercising a discretionary power vested in that tribunal, unless the finding or order was the only one open: B & L Linings at 510; [139].

(f) The Court cannot, therefore, usurp the fact-finding function of the tribunal from which the appeal is taken: Osland v Secretary, Department of Justice at 332, [19]; 352, [75]. Thus, the hearing of the appeal does not extend to a rehearing of the factual questions before the tribunal from which the appeal is taken on making findings of fact: B & L Linings at 498; [55]; 503-4; [75]; North Broken Hill Ltd v Tumes (1999) 18 NSWCCR 412 at 421; [25]; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 464; [69]-[70].

(g) Even where an error of law is demonstrated, the Court cannot engage in fact finding on the merits of the case: B & L Linings at 504; [78];

(h) A question of law does not include a question of mixed fact and law: Williams v The Queen (1986) 161 CLR 278 at 287, 301-302; Comcare v Etheridge at 527; [16].

(i) An appeal on a question of law is narrower than an appeal “involving a question of law”: TNT Skypak International (Australia) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178.

(j) The question of whether facts found fall within a statutory provision properly construed is generally a question of law: Hope v Council of the City of Bathurst (1980) 144 CLR 1 at 7. This principle is qualified when the statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words “where different conclusions are reasonably possible”: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512. Then, as the relevant material reasonably admits of different conclusions, the particular conclusion reached is a question of fact: Vetter v Lake Macquarie City Council at 450-2; [24]-[28].

(k) It is not a question of law to claim that the decision of the tribunal from which the appeal was taken was against the evidence or the weight of the evidence: Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 410. It is, however, an error of law if there is no evidence or material to support the finding of fact or if the true and only reasonable conclusion on the evidence contradicts the decision of the tribunal from which the appeal is taken: Federal Commissioner of Taxation v La Rosa (2002) 196 ALR 139 at 148.

(l) Whether the decision of the tribunal from which the appeal has been taken has been made with an error of fact, or whether the finding of fact is perverse, illogical or unreasonable are not questions of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.

(m) “The grounds required to be specified in the notice of appeal are not grounds of appeal; they are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks. It is not possible ... to extend the subject matter of the appeal beyond the specified questions of law by itemising, under the heading ‘Grounds’, a series of alleged errors (some being errors of law, some being errors of fact and some being errors of mixed law and fact) in the reasons for decision of the Tribunal”: HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 at 293; [6].

(n) The function of the Court is to determine whether the decision of the tribunal from which the appeal is taken was right or wrong in law on the evidence before it and according to the law as it stands at the time the appeal is heard: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-4; [12]-[14]; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 106-9.

(o) If the Court finds that the tribunal from which the appeal has been taken has made an erroneous decision on a question of law, the power of the Court to make orders that “it thinks appropriate” is not a power which is at large. The orders must be appropriate to the decision reached: B & L Linings at 509-10; [137].

(p) An immaterial error of law will not vitiate the decision of a tribunal from which the appeal is taken: BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 at 254.

(q) If, on the facts already found, and in circumstances where there is no question of finding other facts, there is only one outcome in law, this Court can pronounce that result: GPT Re Ltd v Belmorgan Property Developments Pty Ltd (2008) 72 NSWLR 647 at 671; [101].

See also John Flynn Community Group Inc v ACT Heritage Council (2012) 6 ACTLR 266 at 272-3; [16], though I have noted some additional principles, added some nuance to the application of questions of law, especially in the context of statutory construction, and respectfully differed on the position of the function of the court.

I shall apply the above principles.

Application for an order in the nature of a writ of certiorari(b)

The second proceeding sought the judicial review of the RT Tribunal’s decision, claiming both an order in the nature of a writ of certiorari to quash the orders of the RT Tribunal and a declaration that the RT Tribunal had exceeded its jurisdiction in making the orders.

Rule 3553 of the Court Procedures Rules 2006 (ACT) abolished the prerogative writ of certiorari; Rule 3554, however, empowered the Court to issue an order in the nature of and to the same effect as such a writ. I shall refer to such an order as a certiorari order.

Counsel for Mr Faull, Mr D Mossop, submitted that relief was available under both applications. He frankly stated that the reason for the application for a certiorari order was because of two uncertainties in relation to the appeal: there was a necessity for leave in relation to an appeal and there was some uncertainty about whether an order on appeal would set aside the order of the RT Tribunal ab initio.

It seems to me that this may be redolent of excessive caution. If the grounds for a certiorari order are made out, it is difficult to see that leave would not be granted on those grounds. The ground relied on to support a certiorari order was that of jurisdictional error: Craig v State of South Australia (1995) 184 CLR 163 at 176-180. It seems to me that such an error must be an error of law which would satisfy the Court to uphold an appeal.

As to the question of whether the decision to uphold appeal would amount to setting aside the orders of the RT Tribunal ab initio, authority suggests it does. Mr Mossop referred me to Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225 and Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 at 256-7.

The former decision related to the quashing of a criminal conviction, but the Court there relied on general principles, especially as to appeals which, as the Court pointed out, are not common law proceedings, but creatures of statute so that the scope and effect must be governed by the terms of the relevant statute. The relevant powers of this Court are to be found in r 5052(1)(d)(i) of the Court Procedures Rules, namely a power of “confirming, amending or setting aside the order” from which the appeal is taken. To set aside the order seems to me at least to permit the Court to render it a nullity from the date of its making.

This may not be necessarily so, but such an interpretation is confirmed by Wattmaster Alco Pty Ltd v Button, where the Court considered that ordinarily the setting aside of a decision would render it a nullity. In that case, the statute expressly permitted the Court to specify another date for which the setting aside could be stated to take effect. That does not seem to apply here, unless it could be read into r 5052(1)(e) “make any other order that it considers appropriate”. This is not the place to construe such a wide and apparently unconfined power.

Relying on the decision of Coleridge J in R v Drury (1849) 3 Car & K 190 at 199, Kirby P, with whom Cripps JA agreed, said in MacIntosh v Lobel (1993) 30 NSWLR 441 at 459: “It is a well-known principle of the common law that a judgment reversed is the same as no judgment”.

Mr G McCarthy, who appeared for the Commissioner, did not argue against this approach, though he was careful to preserve his position on the legality of acts done in reliance on the orders before they were set aside, a position that seems clear, in any event, on the authorities to which I have referred.

He then submitted that the application for an order of certiorari should be dismissed as an abuse of process, relying on a decision of the NSW Court of Appeal, Meagher v Stephenson (1993) 30 NSWLR 736.

In that case, the Licensing Court of New South Wales conditionally granted an off-licence (retail) for a premise in Tamworth. One of the unsuccessful objectors commenced an appeal in the NSW Supreme Court and also made an application for orders in the nature of certiorari and mandamus. The trial judge considered that no error of law was demonstrated and so did not need to make any comment or finding on the dual nature of the proceedings. The Court of Appeal thought (at 738):

[i]t would be a sound practice for a single judge faced with such a situation in future to require the appellant to elect which procedure to follow. Where the proceedings relate to determinations by the Licensing Court and the error alleged is an error of law on the face of the record, it is inappropriate and unnecessary to take proceedings for prerogative relief simultaneously with an appeal.

The Court pointed out that certiorari is a discretionary remedy and that the availability of an alternative remedy has always been a relevant consideration.

After considering a number of authorities, the Court said (at 738-9):

Where, as in this case, the same court has both appellate and supervisory jurisdiction, the claim for certiorari for non-jurisdictional error on the face of the record cannot provide any relief which is not also available in the appeal.
The only conceivable advantage accruing to a plaintiff from the joinder of the claim for certiorari in these circumstances is the supposed availability of an appeal as of right to this Court ...
It appears to us that a claim for certiorari that is joined to an appeal under s 146 of the Liquor Act merely for the purpose of securing an appeal as of right to this Court, may well be an abuse of process which could be struck out in accordance with the principles applied in O’Reilly v Mackman [1983] 2 AC 237 at 254, 285. While this principle has proved difficult of application in the United Kingdom in some judicial review cases (see Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624) no such difficulties appear to arise in cases such as the present. Indeed, it may also be open to a respondent to apply to strike out an appeal as of right on the same principles. It may be that there are cases where it is appropriate to take proceedings of the prerogative kind rather than to appeal pursuant to s 146 but there seems no justification, indeed it could be an abuse of process, to take both simultaneously.

I note that in Hill v King (1993) 31 NSWLR 654, a partly differently constituted NSW Court of Appeal held that the same approach applied where certiorari was sought for jurisdictional error.

Mr Mossop submitted that these decisions were not applicable in this Territory because of the different constitutional arrangements that applied. He submitted that s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) entrenched the supervisory jurisdiction of this Court which could not be rejected as an abuse of process, though, it would seem that the usual procedural option of refusal to exercise the jurisdiction on the ordinary discretionary grounds applicable to certiorari (Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 508-12; Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 4^th ed, 2009), 826-831) would still be available.

Mr Mossop referred me to an article he had written, “Section 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth)” (2005) 16 Public Law Review 213. It is elegantly written and persuasive.

I am satisfied that this Court had, as at the time of transfer of the Supreme Court to the body politic that is the Australian Capital Territory, a common law power to issue orders in the nature of certiorari and that s 48A of the Australian Capital Territory (Self-Government) Act renders such a power entrenched, so long as that section remains in its present form. For abundant caution, I add that the conversion in the Court Procedures Rules of the mechanism by which the orders are made is a procedural matter, where the former procedure was not, in my view, entrenched, so long as the power remains.

Accordingly, I do not consider that the application for a certiorari order should be set aside as an abuse of process.

SECTION 51 OF THE RT ACT

The application of the Commissioner to the RT Tribunal was made under s 51 of the RT Act. The relevant terms of the section are set out above (at [18]). A question arises as to how that section should be approached.

Mr Mossop pointed out that it was not the only power that the Commissioner had to approach the RT Tribunal to end Mr Faull’s tenancy. In particular, he referred to s 48 on which the Commissioner could certainly have relied to terminate the tenancy in these circumstances. The evidence suggests that such an application may well have been successful. The section relevantly provides:

(1)On application by a lessor, the tribunal may make a termination and possession order if—

(a) satisfied that—
(i)the tenant has breached the standard residential tenancy terms (other than by failing to pay rent that has become payable); and
(ii)the lessor has served a termination notice on the tenant based on the breach; and
(iii)the tenant did not vacate the premises in accordance with the notice; and
(iv)the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the tribunal; and
(v)the breach justifies the termination of the tenancy;

...
(2)The tribunal may, if satisfied that it is appropriate and just to do so in relation to an application mentioned in subsection (1)—
(a) refuse to make a termination and possession order if—
(i) the tenant has remedied the relevant breach; or
(ii)the tenant undertakes to remedy the breach within a reasonable specified period and is reasonably likely to do so; or

(b)make a termination and possession order but suspend it for a period of no more than 3 weeks if satisfied that—
(i)were the order not suspended for a specified period of no more than 3 weeks the tenant would suffer significant hardship; and
(ii)that hardship would be greater than the hardship that would be suffered by the lessor if the order were suspended for the specified period.

There are other powers of termination by the RT Tribunal, such as under s 47 (termination where no breach of the standard residential tenancy terms), s 49 (failure to pay rent), s 50 (significant hardship to the lessor) and s 52 (tenancy agreement induced by false or misleading statements). Under ss 47, 48 and 49, unlike s 51, the Commissioner, however, has to serve a termination notice. It seems that s 50 would only be available to the Commissioner in limited circumstances.

It is also relevant that, under s 51, the RT Tribunal is expressly empowered to make “a termination and possession order effective immediately”, a provision that does not appear in any of the other sections, which, apart from ss 50 and 52, have provisions for a suspension of the termination order, such as s 48(2)(b). Section 50 requires eight weeks notice of termination, unless the hardship suffered by the lessor in that case would be greater than the tenant’s hardship on earlier termination.

In Devenport v Commissioner for Housing in the ACT [2007] ACTSC 30 (Devenport), the Full Court used the reference to it in the Explanatory Memorandum that was circulated with the Bill that became the RT Act, together with s 142 of the Legislation Act 2001 (ACT), to justify having regard to Community Law Reform Committee, Private Residential Tenancy Law, Report No 8 (1994) for the purposes of construing the RT Act.

In Devenport, the Full Court also relied (at [20]) on the different provisions in ss 48 and 49 to conclude that the express power to make conditional orders under s 49 meant that, in the absence of such express provision in s 48, there was no such power to make conditional orders under it.

The differences on which Mr Faull relied between ss 47 and 48 especially and s 51 of the RT Act were: the express reference to the order under s 51 being one of immediate termination, the absence of notice and the requirement for an intention or recklessness on the part of Mr Faull, none of which were present in the other sections.

What is said to be significant is the absence in s 51 of the lapsing of some time before the tenancy is terminated, which is present in the other provisions and is obviously designed to avoid hardship for the tenant or, possibly, even homelessness. Also significant is the lack of an opportunity for the tenant to remedy any breaches that would otherwise justify termination.

As approved by the Full Court in Devenport, I have had regard to the Community Law Reform Committee’s Report. The relevant passage and recommendation in the Report is as follows:

Urgent applications for termination as a result of danger to the premises or risk of injury to the lessor.
813. The effect of the above recommendations is that in certain cases the lessor may have to wait between five and seven weeks for a tribunal order terminating the tenancy agreement. The Committee agrees with submissions in support of a facility for urgent termination in extreme situations. In extreme situations their may be a significant risk of extensive damage to the premises or of injury to the lessor during this delay. The Committee therefore agrees that in cases where the lessor has a reasonable fear that the premises are about to be severely damaged or further damaged then the lessor should be able to seek an urgent hearing before the tribunal to terminate the tenancy and so reduce the risk of damage. The following recommendations are based on the Residential Tenancies Act 1987 (NSW) [s 68(1)].
Recommendation 152: The proposed Residential Tenancies Act should enable the lessor to apply to the tribunal for an urgent hearing to terminate the tenancy where the premises are at serious risk of severe damage or the lessor has suffered or is likely to suffer injury to him or herself. The Committee also recommends that the tribunal have a discretion to terminate the tenancy if it is satisfied that the tenant has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit:
·serious damage to the residential premises; or
·injury to the lessor, the lessor’s agent or any person in occupation of or permitted on adjoining or adjacent premises.

The Explanatory Memorandum made it explicit that s 51 implemented this recommendation. As originally enacted, the RT Act included only paragraphs (a) and (b) (without the words “if the lessor is an individual”).

This approach is that which is taken by the Consumer, Trader and Tenancy Tribunal of New South Wales to s 68 of the Residential Tenancies Act 1987 (NSW), which is, as noted in the Community Law Reform Committee’s Report, the section on which s 51 of the RT Act is based. Although there are some differences, the comments of the Tribunal in NSW Land & Housing Corporation v El Masri [2005] NSWCTTT 702 are helpful. It said:

The Application is brought pursuant to section 68 of the Residential Tenancies Act 1987. It is without doubt the most serious section of the legislation.
The consequences of a successful Application are serious. It satisfied that the conditions of the section are met the Tribunal may not only terminate the tenancy but must make an immediate order for possession.
The reason the consequences are so serious is because the conduct in question is very serious indeed. The section talks about actual damage or actual injury or the risk of actual damage or actual injury as a result of a tenant’s conduct.
Therefore the Act is saying that certain conduct is simply not acceptable and the consequences are immediate loss of the tenancy. This is of course appropriate if the case is made out.

While there is, as in the ACT, a discretion as to whether the order of termination is to be made, it is certainly not clear that, if made, there is a discretion in the ACT as to whether it has to be an immediate termination; the structure and purpose of the section appear to require immediate termination, though in this case the RT Tribunal did delay termination.

The present form of paragraphs (b) and (c) were inserted on 8 March 2005 and paragraph (d) was inserted on 28 February 2006. The Explanatory Statement for the latter insertion was particularly bland and did not explain why this provision was included in what the Community Law Reform Committee had described as providing for “extreme situations”. The Explanatory Statement simply said:

Clause 16 Damage, injury or intention to damage or injure Section 51(b) – inserts new section 51(c) [sic] into the Act, which provides that the Residential Tenancies Tribunal may evict a tenant who is seriously or continuously interfering with a neighbour’s quiet enjoyment of their property. This is consistent with the existing prescribed clause 70 which states that a ‘tenant shall not interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises’.

Paragraph (d) is, after all, quite a different provision without the obvious element of urgency and serious risk inherent in the other paragraphs.

Nevertheless, the section still provided that such termination under s 51 was only available where the RT Tribunal was “satisfied that the tenant has intentionally or recklessly caused or allowed ...” the relevant outcomes specified in the subsequent paragraphs.

Mr Mossop submitted that the satisfaction of the RT Tribunal about these matters was a jurisdictional fact that was a pre-condition to the exercise of the power of the Tribunal to make an order under the section.

Recently, Dodds-Streeton J in Marku v Republic of Albania (2012) 293 ALR 301 at 329-31; [118]-[124] has helpfully collected and summarised relevant authorities on the content and identification of what a jurisdictional fact is. Her Honour said:

118In Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at [43], the High Court stated that the expression “jurisdictional fact” is generally used:
... to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

119In Cabal v Attorney General (Cth) (2001) 113 FCR 154 at [50], Weinberg J elaborated on the consequences of identifying a “jurisdictional fact”. His Honour stated:
The so-called doctrine of “jurisdictional fact” (assuming that it is correct to so describe it) represents an exception to the principles of restraint which normally govern judicial review. “Jurisdictional fact” enables such review whenever the court determines for itself that a statutorily required fact does not exist. Parliament can stipulate that any action which it authorises depends upon the existence of various preconditions. The legislation may require the existence of those preconditions to be established in the mind of the person or body exercising the power, or in the mind of the reviewing court. Where the power depends upon factual requirements being demonstrated to the satisfaction of the person in whom it is reposed, it is that person's determination of the facts which is decisive. The validity of the exercise of the power is unaffected if the person, acting in good faith and otherwise according to law, considers the facts, and reaches an opinion about them, albeit one which a court would not share. Where the power depends upon the existence of objective facts, the court on judicial review is given the final say as to whether the required facts exist.

120Whether a statutory criterion involves a jurisdictional fact depends principally on statutory interpretation. In Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 (‘Timbarra’), Spigelman CJ stated at [40] to [41]):
Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.

121In Timbarra, Spigelman CJ at [38] recognised that discerning a jurisdictional fact involves inter-related elements of “objectivity” and “essentiality”.
122Factors recognised to be indicative of a jurisdictional fact include the language of the relevant statutory provision, the scope and purpose of the legislative scheme, whether the statutory criterion involves matters of judgment or degree and whether the consequences of invalidity would result in inconvenience (Timbarra at [89] and [91] and Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [30], [32], [56], [58], [63].

123 Spigelman CJ in Timbarra at [44] also observed:
44The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.

Her Honour then referred to a decision of Kaye J in Shalom v Health Services Commissioner [2009] VSC 514 at [28] where his Honour summarised some of the significant factors relevant to the existence of a jurisdictional fact. One of these was:

On the other hand, a factor which militates in favour of a fact being a jurisdictional fact is the question whether what has been described as ‘transcendent’ or ‘important’ values are affected by the exercise of the statutory power. In the absence of clear language, a statutory authority possessing powers which might infringe important rights, is presumed not to have the ability to conclusively determine, for itself, a fact which is critical to the exercise by it of those powers.

I note that Mr McCarthy did not controvert that the satisfaction of the RT Tribunal as to whether Mr Faull intentionally or recklessly caused or permitted the matters set out in paragraphs 51(c) and (d) were jurisdictional facts. I am satisfied that they were.

THE CONTENT OF THE JURISDICTIONAL FACT

The jurisdictional fact is that, in order for the RT Tribunal to exercise a power to make a termination and possession order effective immediately under s 51 of the RT Act, the RT Tribunal must “be satisfied that the tenant has intentionally or recklessly caused or allowed, or is likely to cause or allow” one of the four stated matters in the paragraphs to the section. The reference in the section to “likely to cause or allow” is not relevant; the Commissioner’s case before the RT Tribunal was based on past conduct and not future likelihood. I shall not refer to this part of the section further.

The level of satisfaction is, of course, satisfaction on the balance of probabilities; the proceedings are civil proceedings and there is no suggestion that it should be otherwise. Nevertheless, the consequences of an order are serious, both in that it will terminate a tenancy, which may render the tenant homeless, and that it will do so immediately, that is, there will be no time for the tenant to make any kind of arrangements to find new premises in which to live or to take steps to vacate in an orderly way.

These consequences seem to me to require both that the standard of satisfaction be commensurate with those serious consequences and that the legislation be construed with a degree of care and strictness appropriate to those serious consequences. This perhaps explains the otherwise unexplained and apparently spontaneous reference by the RT Tribunal in its reasons to Briginshaw v Briginshaw (1938) 60 CLR 336. In the seminal formulation of Dixon J in that case at 362:

[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

If, as may appear, this is the approach that is suggested to be adopted when considering a case under s 51 of the RT Act, then I agree.

The question here, then, is what content is to be given to “intentionally or recklessly”, as referred to in the section. These are words frequently encountered in the criminal law. It seems to me there is no reason why they should not be given the same meaning.

This does not necessarily require medical evidence to diagnose or prove, though in the area of psychological or psychiatric illness, it may often be necessary to have that. See, for example, NSW Land & Housing Corporation v Bullmann [2006] NSWSC 733 at [22]-[25].

Terms such as “stress”, “anxiety”, “depression”, “nervousness”, “grief”, “fear”, “fright”, “worry”, “shock”, “humiliation”, “indignity”, “sleeplessness”, “upset”, “fearful”, “distress” and “concern” are part of a very wide continuum that stretches from psychological discomposure to symptoms of a recognised psychological or psychiatric condition. Where the condition is to be placed on that continuum may well require some expert evidence in any particular case, though not necessarily so in every case; the court or tribunal must, however, be astute to ensure that it approaches the case with rigour and not mere empathy.

For example, it is clear that some psychological disturbance will only reach the relevant degree of injury if it lasts for a particular length of time. Transient conditions, even initially severe, may not amount to such a condition. This may require expert evidence to identify.

In my view, this was the approach to the term “injury” in s 51(c) of the RT Act that the RT Tribunal was required to take.

DID THE RT TRIBUNAL MAKE A FINDING OF THE RELEVANT JURISDICTIONAL FACTS?

The first question is to assess whether the RT Tribunal did make a finding of the jurisdictional facts that I have identified.

Section 106 of the RT Act requires the RT Tribunal to provide a statement of reasons if a party requests it within two weeks of an order being made. That is to say, there appears to be no obligation for the RT Tribunal to provide reasons when it makes an order. In this, its character as an administrative tribunal is emphasised. Unlike the exercise of judicial power, the exercise of administrative power is not required to be accompanied by reasons, though even in the case of courts, the parties can waive such a requirement in certain circumstances.

This may be the source of a submission that Mr McCarthy made that, because the decision pre-dated the reasons, I should in some way discount any infelicity in the statement of the reasons. In the first place, Mr McCarthy submitted that the provision of reasons was discretionary. I do not consider that to be an accurate description. The RT Tribunal is not required but presumably may give reasons when making an order. Whether it does or not, however, it is mandatorily required to give reasons if requested within two weeks of it making the order. That, in my view, makes the giving of reasons mandatory if requested. The reasons must clearly be for the decision and must, as directed by s 106(2):

(a)set out the tribunal’s findings on material questions of fact; and
(b)refer to the evidence or other material on which the finding was made; and
(c)give the tribunal’s reasons for making the order.

Mr McCarthy later submitted that the decision is made and the reasons come afterwards, as opposed to “the reasons com[ing] part and parcel with the decision”. This seemed to be the basis for a submission that the court “cannot simply say the omission [to make the necessary finding] was in the reasons and therefore the finding is flawed”. This appeared to lead him to the following submission:

What I am saying is that you can’t simply take the reasons – sometimes the reasons come part and parcel with the decision. And the adequacy of the reasons, if it’s a precondition to the making of the decision, will be a basis to set aside the decision itself because it’s another kind of precondition that isn’t met.

I do not accept the argument. The reasons are, and must be, the explanation for why the decision was made. That they are articulated later does not divorce them from being the rationale and explanation for the decision such that, if they are flawed, the decision must ipso facto be flawed. That is not to say that the decision itself could not have properly been made, but only if based on proper reasons.

In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 225, the High Court made a distinction between the decision and the notice setting out the reasons for decision, so that a failure to comply with the obligation to give reasons did not necessarily impeach the decision itself. That, however, was in part because of the particular statutory provisions involved. Gleeson CJ, Gummow and Heydon JJ accepted that the delivery of reasons may be a condition precedent to the exercise of the power to make the decision, but pointed out that this depends on the construction of the relevant legislation. Gleeson CJ, Gummow and Heydon JJ accepted (at 226), however, that the reasons, if given, may disclose error which attracts curial intervention.

It is well-known that, following a judicial review, the re-making of an administrative decision may result in the same decision being made, but in accordance with law, such as by the proper application of procedural fairness or the actual finding of a jurisdictional fact. Not all decisions would, however, be so replicated, for it may be that the proper application of the law would – and does – lead to a different decision.

It seems to me that if the reasons are flawed in a relevant way, then it must follow that the decision is flawed and, depending on the particular circumstances, may need, as a result, to be set aside.

The obligation to provide reasons has been the subject of consideration in the High Court. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the Court gave consideration to the obligation and its content. Thus, Gleeson CJ said (at 330-1; [5]) of s 430 of the Migration Act 1958 (Cth), the equivalent of s 106 of the RT Act:

When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out ‘the findings on any material questions of fact’. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter, and that, in turn, may indicate that the Tribunal did not consider the matter to be material. It was not suggested, in either of the present cases, that the Tribunal made some finding of fact which it failed to set out. The substance of the complaint was that the Tribunal failed to make a finding upon a particular question.

Similarly, Gaudron J said (at 338; [34]-[35], [37]:

Of more significance to the construction of s 430(1)(c) of the Act is the consideration that, in recording its decision, the Tribunal can only set out the findings which it makes. Conversely, findings which are not made cannot be set out. Once that is accepted, s 430(1)(c) must be construed as requiring the Tribunal only to set out its findings on what it considers material questions of fact.
The corollary to the construction of s 430(1)(c) of the Act set out above is that it is to be inferred from the absence of a reference to, or, a finding with respect to some particular matter that the Tribunal did not consider that matter to be material. As will later appear, there may be cases where that will indicate error of a kind that will ground review under s 476(1) of the Act or, even, jurisdictional error which will ground relief under s 75(v) of the Constitution. For the moment, however, it is sufficient to note that the failure of the Tribunal to make a finding with respect to a particular issue is not, of itself, a failure to observe procedures required by the Act. Thus, the Minister’s appeals must succeed unless the orders of the Full Federal Court are to be upheld by reference to one or more of the grounds specified in the notices of contention filed on behalf of Ms Yusuf and Mr Israelian, respectively.
...
As already indicated, if in its written statement setting out its decision, the Tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is to be assumed, consistently with the clear directive in s 430 of the Act, that the Tribunal has not regarded that question as material. And depending on the matter in issue and the context in which it arises, that may or may not disclose reviewable error. For example, the failure to make a finding on a particular matter raised by the applicant may, in some cases, reveal an error of law for the purposes of s 476(1)(e) of the Act.

Finally, McHugh, Gummow and Hayne JJ said (at 346; [69]):

It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
[footnotes omitted]

It is, of course, necessary to provide some restraint when reviewing the reasons of an administrative tribunal, such as the RT Tribunal. The proper role of a reviewing court has been set out by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Ling (1996) 185 CLR 259, where the court, after referring with approval to Collector of Customs v Pozzolanic (1993) 43 FCR 280, acknowledged (at 272) that:

a court should not be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker. The Court [in Pozzolanic] continued “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

The Court accepted that these propositions were well settled and continued:

They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
[footnotes omitted]

See, also, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 66; [23].

Mr McCarthy submitted that, applying such tests, the RT Tribunal did make the necessary findings and I should not apply a formulaic approach that requires the precise articulation of the words of a finding, if such a finding is fairly to be accepted as having been made, based on a consideration of the whole of the reasons, read in the way required by the High Court.

This was, he submitted, particularly important in the context of the conduct of the proceedings before the RT Tribunal, where a number of matters were not in issue. Thus, Mr Faull did not deny his conduct of swearing, playing loud music and creating a disturbance. Indeed, Mr McCarthy pointed out, in his evidence, Mr Faull had said that he did not blame his neighbours for being upset.

Mr McCarthy submitted that I should approach the case as had Higgins CJ in Wade v Wynants [2008] ACTSC 6 where his Honour was asked to review a decision of a Magistrate in which the appellant had been granted a restricted licence to drive a motor vehicle following its cancellation for driving whilst he had the prescribed concentration of alcohol in his blood. The Road Traffic Authority submitted that such a licence could only be issued if the driver establishes “that there are exceptional circumstances justifying the issue of the licence”. The Authority submitted that her Honour cannot be said to have found such exceptional circumstances as she did not expressly state that she had found them.

The Chief Justice dismissed the appeal. He found (at [29]) that, despite not having expressly mentioned the requirement, his Honour found that he “would not assume that her Honour had overlooked it”. His Honour then set out the evidence relevant to the point and found that such circumstances did amount to exceptional circumstances.

In my view, however, this authority is of limited value in this case, for the obligation there was for the driver to establish the exceptional circumstances. That is a different situation than here where it is the RT Tribunal’s satisfaction that is required.

Even if the lower court does not say that it is satisfied that exceptional circumstances were established, the Court can, on review, look at the evidence, as Higgins CJ did, to determine whether the driver had established the exceptional circumstances. In this case, however, it is in the RT Tribunal’s satisfaction itself that is required.

Of course, there may be situations where the Court can find that the RT Tribunal should have been satisfied and, if that is a question of law in the particular case, set aside the decision but it would, it seems to me, have to refer the decision back to the RT Tribunal to reconsider the position to ascertain whether it can, in accordance with the law, be satisfied as required; except, perhaps, in the exceptional circumstances referred to above (at [90]).

Mr McCarthy submitted that, given the conduct of the proceedings, it was clear that the RT Tribunal had made the relevant finding. This was because there was no submission on behalf of Mr Faull that he was not acting intentionally or recklessly as to the relevant outcomes when he behaved as he did.

He pointed out that in three places in its reasons, the RT Tribunal articulated correctly the test, by using or paraphrasing the words of s 51 of the RT Act. In the light of his submissions about the issue and the absence of a submission that Mr Faull was not acting intentionally or recklessly, Mr McCarthy submitted I should consider that the RT Tribunal in its reasons had, at the very least, implicitly made the requisite finding.

Mr McCarthy submitted that, if the reasons were inadequate because they did not articulate expressly the necessary finding, I should not find error of law if the necessary finding was clearly to be implied. He referred to what had been said in this regard by Lockhart J in Bisley Investments Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 152:

We were referred to no case where it has been held that an administrative tribunal has overlooked or treated as irrelevant or immaterial matters expressly referred to in its reasons for decision and not there expressly stated to have been treated as irrelevant or immaterial.
A reading of the reasons of the Tribunal as a whole establishes to my satisfaction that the matters of fact referred to by it in those reasons were considered by it to be both relevant and material. I do not propose to refer to these matters of fact or to summarise them. They were fully canvassed in argument and were summarised by the respondent in written submissions. I am satisfied that the Tribunal’s reasons do include findings on material questions of fact and a reference to the evidence on which the findings were based.

He also referred to the comments of Foster J in Federal Commissioner of Taxation v Cainero (1988) 19 ATC 1301, on what had been said by Lockhart J. Foster J stated (at 1305):

Quite clearly, in Bisley, the Full Court (Lockhart, Sheppard and Morling JJ) were of the view that sec 43(2B) imposed no requirement upon the tribunal in its statement of reasons to refer specifically to all findings of fact made by it. It was obviously regarded as sufficient if such findings could reasonably be inferred from the tribunal’s statement of reasons in the context in which they were given. As Sheppard J said (at p 255):
The section does not impose upon the tribunal, which is often composed of members who are not trained in the law, any standard of perfection. I consider the provision of the section to be directory rather than mandatory. Substantial compliance is what is required and clearly that is here present.

I do note that in this case, the RT Tribunal Member was a lawyer.

Mr McCarthy also referred to a number of other decisions which made it clear that the reasons of a tribunal cannot be assessed against a standard of perfection (e.g. Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414).

I accept that this is the proper approach to the decisions of the RT Tribunal including in this case.

I note, however, that in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at 482-3, the Court held that a recitation of the facts and conclusions in terms of the statutory language does not show an adequate reasoning process and, accordingly, does not meet the statutory obligations as to the reasons required.

Mr McCarthy also pointed out that if inadequate reasons had been given, then it was not inevitable that the decision had to be set aside. He referred to what Finkelstein J said in Comcare Australia v Lees (1997) 151 ALR 647 at 656:

What are the consequences if the obligation to provide adequate reasons has not been satisfied? There are a number of possibilities. One is that the tribunal can be compelled to provide reasons by the issue of a writ of mandamus or by an order in the nature of mandamus. Another possibility is that a deficiency in the reasons may be such as to lead to the inference that the tribunal erred in law in arriving at its decision in which case the decision is liable to be set aside. The third possibility is that a failure to give adequate reasons is itself an error of law that enables the decision of the tribunal to be set aside. This would only be so if, on the proper construction of s 43(2B), it was intended that a failure to comply with that subsection necessarily so vitiated the decision as to require it being set aside for error of law.
[emphasis in the original]

In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme, the Court held (at 224) that, in an appropriate case, the failure to give reasons may attract the remedy of mandamus. The Court held (at 215, 227-8), however, that a failure to give reasons as required is not a jurisdictional error.

All this may be accepted, but it does not seem to me to address the issue that was raised by Mr Mossop. The RT Tribunal could only make the termination order if satisfied that Mr Faull intentionally or recklessly caused or allowed the outcomes set out in s 51(c) and (d) of the RT Act. This is a jurisdictional fact. The question is not whether the reasons are adequate in the sense that these authorities discuss that issue. It is not a question of whether the reasons have referred to the findings of fact made by it, or whether the important facts have been mentioned.

The issue here is whether the RT Tribunal was actually satisfied that Mr Faull intentionally or recklessly caused or permitted the outcomes set out in s 51(c) and (d) of the RT Act. That involves a consideration of not just whether the actions of Mr Faull were voluntary but whether he intended or had foresight that his actions would bring about those outcomes. This is, as the Court of Appeal said in Crook v Commissioner, Tradings and Tenancy Tribunal of New South Wales at 311; [39], “a difficult question”. It depended not merely on the voluntariness of Mr Faull’s actions, but also his state of mind as to the specific outcomes at the time. In this case, his intoxication was a very relevant factor, not only for voluntariness where the issue was expressly addressed by Mr McCarthy but for whether he was aware of the consequences of his actions at the time he did them in the specific ways set out in the section, and either intended them or proceeded with foresight nevertheless.

There were no submissions on behalf of Mr Faull to the contrary, but that is not sufficient. What is problematic here is that the submissions on behalf of the Commissioner did not address this issue; any consideration was limited to the question of whether Mr Faull’s actions were voluntary. That is necessary but not sufficient for the jurisdiction of the RT Tribunal under this section to be invoked.

Much was made of the fact that Mr Faull conceded in his evidence that his neighbours were justified in being upset. That, however, is only part of what is required. That was Mr Faull’s state of mind at the time he gave evidence. It may provide a basis for inferring that it was his state of mind at an earlier time, but the RT Tribunal had to draw that inference and explain its reasons for doing so.

Further, being upset is not necessarily sufficient for finding “serious or continuous” interference with the quiet enjoyment to which the neighbours were entitled. That may occur without such interference. There was some evidence of the frequency of disturbance; whether that was properly to be considered continuous or serious interference with the quiet enjoyment by his neighbours of their tenancies was a matter to which the RT Tribunal not only needed to give express consideration but also to find that Mr Faull intended that or was reckless about it. The reasons of the RT Tribunal did not address that matter.

Whether the reasons given were otherwise adequate was not a matter raised in this hearing and I do not consider it. What was required from the admission of Mr Faull that he thought his neighbours were entitled to be upset, however, was that the RT Tribunal would have to consider whether it could make a finding that his subsequent acceptance that they were entitled to be upset was sufficient to draw that inference that he intended or had foresight that he was seriously or continuously interfering with the quiet enjoyment to which his neighbours were entitled when he was behaving as he was. That is by no means an obvious or inevitable inference that could be drawn. Indeed, I am inclined to say that it was not capable of being drawn from that fact alone.

Accordingly I am unable to say that the RT Tribunal was simply adopting the submissions made to it such as to satisfy me that it had reached the satisfaction required of it, because the submissions to the RT Tribunal did not address the actual issue of which it had to be satisfied,

In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-5, 619, 646, the High Court held that a decision involving jurisdictional errors is a decision that “lacks legal foundation and is properly regarded, in law, as no decision at all”, that is “the statutory power given to the Tribunal has not been exercised”. See also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506.

The failure of the RT Tribunal to make a finding that gave it jurisdiction to make the orders it did is an error of jurisdiction and requires the decision of the RT Tribunal to be set aside.

CONCLUSION

I am satisfied that the RT Tribunal did not find that Mr Faull, intentionally or recklessly, caused or allowed:

(a) a representative of the Commissioner injury within the meaning of s 51(c) of the RT Act; or

(b) serious or continuous interference with the quiet enjoyment of nearby premises by tenants of those premises.

I do not find that the RT Tribunal could not have made these findings, but I do not consider that they were inevitable on the evidence to the extent that I would be permitted to make such a finding myself in substitution for that of the RT Tribunal.

In my view, there being no relevant distinction between the effect of an order on appeal or of a certiorari order, as both set aside or quashed the finding ab initio, it seems to me that I should grant leave to appeal and uphold the appeal and as a matter of discretion dismiss the application for the prerogative order.

As to costs, the Commissioner should pay Mr Faull’s costs of the appeal.

Mr Faull should pay the Commissioner’s costs of the application for the prerogative order but, in my view, neither the hearing nor any interlocutory appearance was lengthened to any appreciable degree by the inclusion of the consideration of that application, so the costs should not include any of the appearances in court, as these were all involved in both proceedings which were conducted concurrently.
I certify that the preceding two-hundred and nineteen (219) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2013

Counsel for the applicant:  Mr D Mossop
Solicitor for the applicant:  Welfare Rights and Legal Centre Ltd
Counsel for the respondent:   Mr G McCarthy
Solicitor for the respondent:  ACT Government Solicitor
Date of hearing:  1-2 April 2009
Date of judgment:  26 June 2013