Faull v Commissioner for Social Housing for the ACT

Faull brought an appeal against the Commissioner for Social Housing for the ACT regarding the termination of a tenancy. The dispute arose from a decision of the Residential Tenancies Tribunal, which Faull sought to appeal under section 125 of the Residential Tenancies Act 1997 (ACT). Faull argued that the Tribunal had made a jurisdictional error by failing to properly apply the statutory test under section 51 of the Act in terminating the tenancy. This required the Court to determine the appropriate scope and principles for considering an appeal on questions of law, including the requirement for a clear identification of the legal questions involved. The Court also needed to consider whether the common law power to issue orders in the nature of certiorari was available under section 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth).

The Court considered whether the Tribunal had correctly identified and applied the jurisdictional facts necessary for terminating a tenancy under section 51 of the Act. The appeal hinged on the interpretation of section 51 and the meaning of ‘injury’ within the context of the Act. The Court found that the Tribunal had failed to properly apply the statutory test of intention or recklessness, a fundamental requirement for terminating a tenancy under section 51. This failure was apparent from the Tribunal's statement of reasons, and thus constituted a jurisdictional error. Given that the Tribunal had not applied the statutory test correctly, the Court concluded that the decision was flawed and should be set aside.

The Court granted leave to appeal and upheld the appeal, setting aside the Tribunal's decision. The Court ordered that the Commissioner pay Faull's costs and directed that the parties be heard regarding any further orders to be made. This outcome emphasised the importance of tribunals correctly applying jurisdictional facts and statutory tests when making decisions on tenancy terminations. The decision underscored the need for tribunals to carefully consider and articulate their reasoning, particularly in cases involving statutory interpretation and jurisdictional errors.