FELLE & COMMISSIONER for SOCIAL HOUSING in the ACT (Residential Tenancies) - [2012] ACAT 82

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FELLE & COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Residential Tenancies) [2012] ACAT 82

AA 33 of 2012

Catchwords: RESIDENTIAL TENANCIES – ex parte unconditional termination and possession order and warrant of eviction – evidence of payment three days before ex parte hearing - natural justice – procedural fairness – error of failure to consider relevant evidence – appeal from refusal to set aside unconditional termination and possession order – no reasonable explanation for failure to appear.

List of legislation: ACT Civil and Administrative Tribunal Act 2008

ss.7, 44, 56, 60, 79 & 82
Residential Tenancies Act 1997 (ACT) s.49

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

, Rule 21

List of cases: Allesch v Maunz [2000] HCA 40
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Commissioner for Social Housing in the ACT and Radovanov (Residential Tenancies) [2011] ACAT 12
Das v A & A Airconditioning Pty Ltd (Civil Disputes) [2011] ACAT 52
Fisher v Commissioner for Social Housing in the ACT [2012] ACAT 32
House v King (1936) 55 CLR 499
Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263;
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695
O’Donnell v Environment Protection Authority [2012] ACT SC 140
Pesi & Commissioner For Social Housing in the ACT (Residential Tenancies) [2012] ACAT 61
Re Minister for Immigration and Multicultural Affairs: ex parte Eshetu [1999] HCA 21
The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63
Thornthwaite v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 11

Tribunal: Ms E. Symons, Presidential Member

Date of Orders: 19 December 2012
Date of Reasons for Decision: 19 December 2012

IN THE ACT CIVIL & )

ADMINISTRATIVE TRIBUNAL ) FILE NUMBER

AA 12/33

YUSAK ANDREAS FELLE

Appellant/Tenant

THE COMMISSIONER FOR SOCIAL HOUSING IN THE ACT

Respondent/Lessor

TRIBUNAL: Ms E. Symons, Presidential Member

DATE: 19 December 2012, as amended on 21 December 2012

AMENDED ORDERS

The Tribunal makes the following orders:
i.Appeal AA 12/33 from decision dated 10 July 2012 allowed;
ii.Decision of 10 July 2012 is set aside;
iii.The Tribunal makes the following orders pursuant to paragraph 49(4) of the Residential Tenancies Act 1997:
A.    The appellant tenant is to pay future rent as it becomes payable under the tenancy agreement, less any rebate granted by the Commissioner for Social Housing, the next payment of rent being due on or before 28 December 2012 and fortnightly thereafter.
B.     If the appellant tenant fails to make a payment of future rent as required by paragraph A above:
a.     The tenancy agreement shall terminate at 5:00 pm the following day; and
b.     Upon termination of the tenancy agreement the lessor is entitled to possession of the premises.
C.     If the tenancy agreement is terminated by operation of paragraph B of this Order the tenant must vacate the premises on or before the date of termination.
D.    If the appellant tenant fails to vacate the premises as required by paragraph C of this Order the respondent lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
E.     This order expires at 5:00pm on 19 June 2013.
iv.Appeal AA 12/33 from decision dated 8 August 2012 is disallowed.
v.The decision of 8 August 2012 is confirmed.

………………………………..

Ms E Symons
Presidential Member

REASONS FOR DECISION

Background

The appellant, Mr Felle, is a tenant of the Commissioner for Social Housing (“the Commissioner”), the respondent. On 1 December 2012 he entered into a Housing and Community Services Tenancy Agreement for the period 1 January 2011 to 31 December 2011 in respect of premises in Currong Apartments. Tenancies at the Currong Apartments are offered only on a fixed term basis and are conditional upon the tenant being enrolled and participating as a student at one of Canberra’s tertiary institutions. Mr Felle is a student at the University of Canberra. After 31 December 2011, Mr Felle remained in the premises on the basis of a periodic tenancy. The Tenancy Agreement’s payment conditions state “The tenant is required to pay 2 weeks rent in advance at the commencement of the tenancy and maintained in credit thereon.”
On 28 May 2012, the respondent lodged an application (“the application”) for resolution of a tenancy dispute and sought an order under section 49 of the Residential Tenancies Act 1997 (RT Act) in relation to the appellant’s tenancy. The respondent relied on the termination notice it had served on the appellant on 30 March 2012 for failure to pay rent, which required him to vacate the premises by 17 April 2012.
On 10 July 2012, the Tribunal heard the application. When the matter was called there was no appearance by or on behalf of the appellant. The Tribunal proceeded to determine the matter in his absence and made an unconditional termination and possession order.
At the respondent’s request on 18 July 2012 a warrant of eviction was issued by the Tribunal as the appellant had not vacated the premises in accordance with the order of 10 July 2012. On 21 July 2012, a member of the Australian Federal Police gave the appellant notice of the proposed eviction on 25 July 2012.
On 23 July 2012, the appellant filed an application seeking orders to set aside the unconditional termination and possession order of 10 July 2012.
On 8 August 2012, the Tribunal made orders dismissing the appellant’s application to set aside the unconditional termination and possession order made in his absence on 10 July 2012. On 9 August 2012, the appellant lodged an appeal from this decision and from the decision made on 10 July 2012.
The grounds of appeal identified in the application are:
(i) failure to accord the Appellant procedural fairness; and
(ii) failure to take into account relevant considerations.
On 12 September 2012, the Tribunal made the following orders in relation to the appeals:
·Appeals set down for hearing on 21 November 2012 at 10 am for one day.
·Appellant to file and serve written submissions by close of business 10 October 2012 identifying the evidence supporting a finding of an error of fact/law, how such error is erroneous, the impact of such an error on each decision appealed and the appropriateness of the orders sought to be made by the Tribunal.
·Respondent to file and serve written submissions by close of business 31 October 2012.
·Appellant to file and serve reply to respondent’s submissions by close of business 14 November 2012.
·Interim order staying termination and Possession Order dated 10 July 2012 until further order.
·Appellant to pay rent of $164.00 per week to Respondent.
·Both appeals to be dealt with at the hearing as reviews of all of each original decision pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008.
Subsequently the hearing date was changed to 12 December 2012 and the timetable for filing of submissions varied accordingly. The Tribunal received the parties’ submissions and the reply and the appellant’s witness statement dated 1 November 2012.
On 12 December 2012 the Tribunal proceeded to hear the appeals. Ms Vanessa Faulder, Solicitor from Welfare Rights and Legal Centre, represented the appellant and Ms Kristy Katavic of Counsel, instructed by Katherine Law-Jamieson, Solicitor from the Australian Capital Territory Government Solicitor, represented the respondent.

Grounds of appeal

Failure to accord the appellant procedural fairness

The appellant stated in the appeal that the basis of the claim that he had not been afforded procedural fairness was:
·the appellant was not legally represented during proceedings on 8 August 2012; and
·the appellant indicated in the Application for Interim or Other Orders that he did not attend the hearing on 10 July 2012 as he was scared. It will be argued that the appellant was unprepared and uncertain of the proceedings (with English being his second language) on 8 August 2012 and that, in light of the admission in the application, the most appropriate action on 8 August 2012 would have been to adjourn the proceedings to allow time for the appellant to seek legal advice and representation. In addition, it will be argued that the Tribunal, in the face of the appellant’s assertion in the application, that he had been informed by a Housing Manager he did not need to attend the hearing on 10 July 2012, warranted the matter being adjourned in order for further evidence to be adduced.

Failure to take into account relevant considerations

The appellant stated in the appeal that the basis of the claim that the Tribunal had failed to take into account relevant considerations was:
· the original decision (10 July 2012) was flawed as the Tribunal did not address the question of whether or not the Tribunal could have been satisfied that the tenant was entitled to a Conditional Termination and Possession Order under section 49(3) and 49(4) of the RT Act.

The Law

Section 79 of the ACAT Act provides:
79(1) This section applies if—
(a) the tribunal has decided an application (the original
application); and
(b) the original application was not an appeal from a decision by
the tribunal.
(2) However, this section does not apply to an application for review of
a decision under the Heritage Act 2004, the Planning and
Development Act 2007 or the Tree Protection Act 2005.
(3) A party to the original application may, by application, appeal the
decision to the tribunal on a question of fact or law.
Section 82 of the ACAT Act provides:
82.An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal—
(a) as a new application; or
(b) as a review of all or part of the original decision on the application
by the tribunal.
Rule 21 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules) which sets out the general powers of the Tribunal for an appeal, states:

21. For an appeal to the tribunal, the tribunal—

(a) has all the powers and duties of the tribunal that made the
order appealed from; and
(b) may draw inferences of fact; and
(c) may receive further evidence about questions of fact, either
orally in a hearing, by written statement or in another way;
and
(d) may make an order confirming, amending or setting aside the
order of the tribunal appealed from; and
(e) may make any other order it considers appropriate.

Preliminary issues

Question of fact or law

As stated above, on 12 September 2012 the Tribunal ordered that both appeals be heard as a review under section 82(b) of the ACAT Act.
Ms Faulder, in her submissions, raised issues in relation to the Tribunal’s decision to proceed with the appeals pursuant to section 82(b) and to the Tribunal’s direction that the appellant lodge submissions identifying the evidence supporting a finding of an error of fact/law, how such error is erroneous, the impact of such an error on each decision appealed and the appropriateness of the orders sought to be made by the Tribunal.
The Tribunal’s Directions on 12 September 2012 should have referred to “questions of fact or law” and not “errors of fact or law.”
The appellant submitted that there is no statutory requirement that an appellant identify an error of fact or law and that the reference to ‘question of fact or law’ in subsection 79 (3) of the ACAT Act does not serve any purpose in relation to an internal appeal within the ACAT and relied on the ‘common-sense statement’ by Justice Penfold in O’Donnell v Environment Protection Authority [2012] ACT SC 140 (O’Donnell) that:
“Under s.79(3) of the ACAT Act, the internal appeal from an ACAT decision is an appeal on a question of law or fact. Under s.82, an appeal tribunal may ‘deal with an appeal’ as a new application or as a review of all or part of the original decision. It is hard to see what purpose is served by requiring the appeal to be ‘on a question of law or fact’ if the appeal process may then be ‘as the Tribunal considers appropriate’ as either a hearing de novo or a rehearing.”
The respondent submitted that the framework behind the appeals jurisdiction necessitates identifying a question of a fact or law as a gateway issue pursuant to section 79(3) of the ACAT Act. It is up to the Tribunal to then consider the question of fact and/or law in the appeal proceedings.
Section 79(3) is clear. It sets out the basis for an appeal from an original decision and, read in conjunction with section 82 and Rule 21 of the Rules, provides the power for the Tribunal to determine its procedure for the appeal. The Tribunal agrees with and adopts Acting President Chenoweth’s statements in Das v A & A Airconditioning Pty Ltd (see footnote 1).

Section 82, ACAT Act

Notwithstanding reference in the appellant’s submissions to the Tribunal applying a strict test as to when it is appropriate to deal with an appeal as a new application in the civil jurisdiction[1] the appellant submitted that, in the residential tenancy jurisdiction, ‘harm is done if an appeal is not dealt with as a new application (section 82(a)) as the Tribunal is precluded from hearing material relevant to the circumstances current at the time of the appeal’ as opposed to the circumstances at the time of the decision under appeal.
[1] Das v A & A Airconditioning Pty Ltd (Civil Disputes) [2011] ACAT 52, [19] Acting President Chenoweth: “I do not consider that the option of hearing an appeal as a new application under section 82(a) is one that could be adopted lightly. The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision; if that were so there would be no point in the original hearing...”
The respondent also submitted that on 12 September 2012 the Tribunal determined that both appeals proceed by way of review; this issue should not be re-agitated.
The Tribunal notes that the ACAT Act was not intended to provide a broad right of appeal to the Supreme Court.[2] The Second Reading Speech in relation to the ACT Civil and Administrative Bill 2008[3] states “…to reduce the incidence of appeals to the Supreme Court, and to enable the tribunal to best control the quality of its decisions, the legislation provides for internal review of tribunal decisions by presidential members in the first instance.”
[2] O’Donnell at [71]
[3] The Attorney General (ACT) Parliamentary Debates Legislative Assembly 8 May 2008 at
Having already ruled that the appeals in the present matter are to proceed pursuant to section 82(b) of the ACAT Act, as a review of all of the original decisions, the Tribunal was not persuaded by the submissions that it should revisit that issue.

Rule 21

In relation to Rule 21, the appellant, in submissions lodged on 7 December 2012, stated:
“ 6. This appeal is, in short, about procedural fairness. The Respondent appears to be suggesting that, once a vulnerable tenant with limited English and no understanding of legal processes in Australia obtains legal representation after a termination and possession order has been made by the Tribunal, that legal representative cannot adduce any fresh evidence on appeal, which would allow the tenant’s best case to be considered by the Tribunal.
7. There is nothing in … “the ACAT Act” that favours an unduly unrestrictive approach in determining what evidence the tribunal can consider on appeal. One of the overarching principles of the ACAT Act (section 7(a) in that, in exercising its functions under the Act, the Tribunal must “ensure the procedures of the Tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice”. (emphasis added) “
Pursuant to Rule 21 (c) of the Rules, the Tribunal permitted the appellant to provide evidence about questions of fact that existed at 10 July 2012 and as at 8 August 2012 for each appeal. The Tribunal did not accede to the appellant’s request to permit the appellant, in a review, to bring evidence of new circumstances after the date of the original decision. To do so would make the original hearing pointless and would prevent a proper consideration of whether a question of fact or law arose in the circumstances as they were at the time the decision appealed from was made.

The appeal from the Ex Parte Termination and Possession order - 10 July 2012

The Tribunal asked the appellant, at the hearing, to identify the questions of fact or law for the Tribunal to consider in the present appeals. Ms Faulder identified:
·the Tribunal had not given proper consideration to whether this appellant could sustain his tenancy and meet the ongoing rent;
·the Tribunal failed to appropriately exercise the discretion in section 44 of the ACAT Act, which sets out the process for proceeding with a matter in the absence of one of the parties to the application; and
·in the present matter the outcome (eviction) was so potentially adverse, the Tribunal should have adjourned the matter and given the appellant, a vulnerable tenant, the opportunity to be heard.
Ms Faulder also referred the Tribunal to the statements by General President Crebbin in Fisher & Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 32 (“Fisher”):
“At the appeal hearing, the respondent’s representative submitted that the Tribunal should only concern itself with the payment of rent and not consider the personal circumstances of the tenant. However, assessing the likelihood that a tenant will continue to pay rent owed and future rent does require, in my view, consideration of a number of matters in addition to the financial position of the tenant. Evidence about why the default in the rental payments occurred in the first place, what actions the tenant took to remedy the default once it became known and what actions have been taken to reduce the risk of further defaults in future is relevant. The fact of earlier defaults is of course relevant, but it may also be relevant in a particular case to know something of the circumstances surrounding earlier defaults. The personal circumstances of the tenant and any likely change in their circumstances may also be relevant to an assessment of the likelihood that payments will continue to be made in the future in a particular case prospects for employment of the tenant and others in the tenant’s household, chronic health problems of the tenant or any dependants, the availability of social support services and engagement with those services, any special needs of the tenant; are all factual issues that may assist a tribunal to assess the likelihood that payments will continue to be made.”
Ms Faulder submitted that President Stefaniak did not turn his mind to the relevant factors in Fisher; he could not have considered these factors as there was no evidence before him aside from the rental statement and that no effort was made by the Tribunal to telephone the appellant which was a course which President Stefaniak had taken in other matters.

The respondent submitted that:
·the critical issue for the Tribunal was whether the discretion in section 49 of the RT Act was exercised properly;
· the Appellate Tribunal should not disturb the Tribunal’s decision on 10 July 2012 as President Stefaniak did not err when exercising his discretion in subsection 49(1) as he was able to make the requisite factual findings under section 49(1) based on the original application and the information provided orally on behalf of the respondent at the hearing, namely:
i.the appellant failed to pay rent fortnightly
ii.the respondent had served a termination notice on the appellant; and
iii.the appellant had not vacated the premises.
·   President Stefaniak did not err by declining to exercise the discretion available in subsection 49(3);
·   he did not fail to turn his mind to relevant factors, as discussed in Fisher;
·   the decision to terminate the appellant’s tenancy was not invalid because of Wednesbury[4] unreasonableness;
·   an Appellate Tribunal should not disturb a discretionary decision simply because another view could have been taken or a different decision reached;[5] and
· section 44 is permissive and does not require the Tribunal to exercise a power; it does not require the Tribunal to consider whether each of the options available in subsection 44(2) should be exercised.
[4]    Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] 1 KB 223
[5]   Pesi & Commissioner For Social Housing in the ACT (Residential Tenancies) [2012] ACAT 61; The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; House v King (1936) 55 CLR 499

The respondent further submitted that the appellant bears the onus of rebutting the presumption that the discretion was exercised correctly and must show some mistake or incorrectness in President Stefaniak’s decision such as that the Tribunal acted on an incorrect principle, gave weight to extraneous or irrelevant matters or gave no weight or insufficient weight to relevant considerations.

Consideration

The Tribunal turns to the matters raised in the previous paragraph.
President Stefaniak had commented at the ex parte hearing that it [making the termination and possession order] was a “bit of a shame” as the tenant was in credit as at 3 November 2011. He also observed that the tenant was only paying “half of what he should have been paying at three (3) monthly intervals which is not in accordance with his tenancy and does not give the Tribunal any confidence that he can actually maintain it”.
The appellant contends that, in relation to the exercise the discretion in section 44 of the ACAT Act, the outcome was so potentially adverse (eviction) for the appellant, the Tribunal should have adjourned the matter and given the appellant, a vulnerable tenant, the opportunity to be heard; this was the first time proceedings had been brought in the Tribunal in relation to this tenancy; and an attempt to telephone the appellant and/or an adjournment would not have prejudiced the respondent.
The respondent acknowledges that there may be cases where credible and relevant probative material is put before a Tribunal which gives rise to a duty to consider an exercise of the power[6] and there may be an obligation to conduct further enquiries[7] but the matter must be readily apparent from the material before the Tribunal.
[6] Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553
[7] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695
The Tribunal notes that after 3 November 2011 the appellant made payments of $1,000 to the respondent on 24 December 2011, $358 on 20 March 2012, $1,000 on 5 April 2012 and $1,000 on 7 July 2012 - some three days before the hearing. This information was provided by the respondent; it was readily apparent and, in this Tribunal’s opinion, created an obligation to conduct further enquiries of the appellant’s personal situation before an ex parte termination and possession was made. These were significant payments. The last payment three days before the hearing is not indicative of a tenant who has abandoned their tenancy or has ceased engaging with the respondent.
The evidence of the appellant’s personal circumstances at that time, which the Tribunal received pursuant to Rule 21(c) of the Rules, showed that:
a.    the appellant had not understood the requirement that he was to pay his rent fortnightly;
b.    he had had a flatmate who had told the appellant she was paying her share of the rent when this was untrue;
c.   his source of income, without the wages he had previously been earning, was from an international scholarship which was paid quarterly;
d.   as an international student, he was also required six monthly to pay approximately $1,400 for a medical check up, insurance and his visa;
e.   he had ceased working in order to concentrate on his studies;
f.    he was sending money back to his home to support his younger siblings;
g.   he had spoken with Linda, his Housing Manager, who had advised he would not have to worry about moving out if he paid rent; and
h.   he had attended an interview with the respondent in March 2012 and lodged an Application for Rental Rebate on 8 March 2012 which was subsequently approved.
Section 44 of the ACAT Act sets out the procedure in the absence of a party. It states:
44(1) This section applies if, at the time set for the hearing of an
application, a party fails to appear either personally or by a
       representative.
(2) The tribunal may—
(a) order that the application be set down for hearing at another
time; or
(b) order that stated other steps be taken before the hearing
proceeds as the tribunal directs; or
           (c) adjourn the hearing; or
           (d) proceed with the hearing in the absence of the party either
generally or in relation to any relief claimed in the application;
or
          (e) if the party is the applicant—dismiss the application; or
          (f) if the party is not the applicant or respondent—remove the
              party from the application.
Subsection 44(2) sets out a range of options which the Tribunal can exercise. The Tribunal accepts that the requirement of section 7(b) of the ACAT Act to observe natural justice and procedural fairness does not, of itself, prevent the Tribunal from exercising the discretion in section 44(2)(d) to proceed with an application in the absence of a party.
However, the evidence in this matter was that this was the first time the respondent had applied for a Termination and Possession Order in relation to this tenancy and the appellant had been making payments of $1,000 each three months since December 2011, the last payment only three days before the hearing. It was not as if this tenant was not paying his rent. This evidence, of itself, the Tribunal finds should have been persuasive in the Presiding Member’s consideration of the powers available to him in subsection 44(2) and, in particular, subsection 44(2)(c). Other than President Stefaniak referring to the appellant having been served with the application[8] and stating that he is ‘satisfied ex parte having heard from the applicant that this is a tenancy going nowhere’[9] it did not appear that he had properly considered subsection 44(2) of the ACAT Act.
[8] Transcript page 5 line 36
[9] Transcript page 7 line 12
The Tribunal has to weigh up the efficient discharge of the Tribunal’s functions against unreasonable delay in concluding litigation.[10] The key word is ‘unreasonable.’
[10] Allesch v Maunz [2000] HCA 40
Given that the appellant was a student in student accommodation provided by the respondent; that the application was seeking to terminate his tenancy and that he had made a payment of $1,000 three days before the hearing, the Tribunal finds to adjourn the matter on 10 July 2012 for a short period would have afforded the appellant a reasonable opportunity to present his case. This would not amount to an unreasonable delay in concluding the litigation. Rather, this would have been in keeping with the Principles in section 7(b) of the ACAT Act.
An adjournment would have afforded the appellant natural justice and the opportunity to ensure that the Tribunal had the information detailed above if he attended on the adjourned date. This would have ensured that all information relevant to the kinds of matters referred to in Fisher were before the Tribunal without unnecessarily delaying the resolution of the matter. Any prejudice an adjournment caused to the respondent would be outweighed by the tenant being heard.
Subsections 49(1), (2) and (4) of the RT Act give the Tribunal discretion. Subsection 49(3) of the RT Act requires the Tribunal to properly consider relevant factors, such as those set out in Fisher in determining whether or not the Tribunal could be satisfied that the appellant could have been entitled to a Conditional Termination and Possession Order as at 10 July 2012.

The Transcript shows the following exchange:
MS BOLJKOVAC: And I say that it would be difficult for the tribunal to give consideration to 49(3) and (4) where it comes to the granting of a conditional – it would be difficult for the tribunal to be satisfied ---
PRESIDENT STEFANIAK: What is that? Is that ---
MS BOLJKOVAC: That’s 49(3) and the subsection 49(4) applies if the tenant in the ACAT’s opinion is reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable.
PRESIDENT STEFANIAK: Well, no, as I’ve indicated, not on that basis – they’re paying rent, but they’re only doing half of what they are actually owe. Well, half of the actual rent for the period they’re trying to catch up on.
MS BOLJKOVAC: Yes.
PRESIDENT STEFANIAK: Let alone any back payments. ...
While the Tribunal is satisfied that President Stefaniak did consider the application of subsections 49(3) and (4) in the above exchange on 10 July 2012, he only had evidence of some of the matters set out in Fisher that might inform the exercise of the discretion in subsection 49(4) and this evidence solely came from the respondent’s documents.
The Tribunal noted the respondent’s submissions that an Appellate Tribunal should not disturb a discretionary decision; that there is a presumption that the discretion was exercised correctly, and that it is not sufficient to set aside a discretionary decision simply because another view could have been taken or a different decision reached.[11]
[11] Pesi & Commissioner for Social Housing in the ACT (Residential Tenancies)[2012] ACAT 61; The Medical Practitioner and the ACT Medical Board (Occupational Discipline) [2010] ACAT 63
Having considered all of the matters before the Appeal Tribunal, the Tribunal is not satisfied that the depth of the Presidential Member’s inquiry, given the fact that the appellant had made a payment of $1,000 just three days before the hearing, was adequate. The Tribunal was not satisfied that he had given sufficient or any proper weight to this relevant consideration when exercising the discretion in subsections 49(4) and 49(1) of the RT Act. This materially affected the presiding member’s decision. The Tribunal refers to and adopts the matters in paragraph 45 above in relation to the exercise of the discretion in section 49.
It follows that having considered all of the matters before the Tribunal; the Tribunal finds that the appellant’s appeal from the decision of 10 July 2012 should be allowed.
On 17 December 2012 the Tribunal sought and obtained the following further information from the respondent:
Rule 21 of the Rules gives the Tribunal a general power to substitute its own judgment in place of the original decision when an appeal is allowed.
The Tribunal makes the orders as set out at the end of this decision.

The appeal from the 8 August 2012 Decision not to set aside the exparte order

The power to set aside an order of the Tribunal is found in section 56(c)(i) of the ACAT Act. It is a discretionary power. It provides:
56 The tribunal may, by order—
(c) amend or set aside a tribunal order if—
(i) the order was made after hearing an application in the
absence of a party;
The appellant appeared at this hearing before Member Daniel. He was unrepresented. Ms Boljkovac represented the respondent.
In response to a question from the Tribunal, Ms Faulder identified the question of law raised in this appeal as “did Member Daniel fail to take into account a relevant consideration when exercising the discretion under section 56 of the ACAT Act?”
The respondent, again, submitted that an appellate Tribunal should not disturb a discretionary decision (see paragraph 48 above). Relevantly, the appellant must show some mistake or incorrectness in the decision – namely that the Tribunal acted on an incorrect principle; gave weight to extraneous or irrelevant matters, or gave no weight or insufficient weight to relevant considerations.
The respondent also referred to the exercise of the discretion to set aside an order made in the absence of a party by the High Court in Allesch v Maunz.[12] The High Court provided a two stage step critical to exercising such a discretion which has been adopted by this Tribunal[13]; both of these steps must be satisfied. The questions to be asked are:
a.whether there was an adequate explanation for the absence of the party; and
b.whether there may be a significantly different result achieved if the matter is reheard on its merits.
[12] (2000) 203 CLR 172
[13] Thornthwaite v Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 11
In the Grounds of Appeal and oral submissions at the hearing Ms Faulder submitted that Member Daniel had only considered part of the appellant’s evidence for his non-appearance on 10 July 2012, namely, that he was afraid; when he had also written in his Application that his Housing Manager, Linda, had told him “If I paid the rent and the debt before the court hearing date I would not have to worry about the court hearing”[14].
[14] See Grounds relied on in Application for Interim and Other Orders lodged 23 July 2012
Ms Faulder submitted that Member Daniel had given no or insufficient weight to what the Housing Manager had told the appellant. Ms Faulder also submitted that the Member should not have considered the option for the appellant to appeal the ex parte decision as this was not relevant and it was given too much weight. The appellant was then unrepresented and would have struggled with identifying questions of fact and law for an appeal.
The respondent submitted that Member Daniel’s finding that she was not satisfied that the appellant had provided a reasonable explanation for not attending was based on the evidence and the appellant’s oral submissions on 8 August 2012, and this finding was reasonably open to her on the evidence before her.
The Tribunal accepts that the transcripts of proceedings are meant to inform and not be scrutinised on review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (per Brennan, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259.)
In considering whether there was an adequate explanation for the appellant not attending the hearing on 10 July 2012, the Tribunal referred to the transcript. It is apparent from the transcript that the appellant sought to answer the Member’s questions as to why he had not attended the earlier hearing on 10 July 2012. He referred to a conversation with the manager, Linda, of the Currong Apartments, where the premises he is currently renting from the respondent is located, to the effect that the manager had told him as long as he paid before the court date he would not have to worry about it.
It appears from the transcript that the appellant was searching for the correct word to describe what it was that Linda said he had to pay before the court date and that he adopted the Member’s suggestion of “arrears” and then when Member Daniel said “So if you paid the rent and the debt before the court date, ‘I would not have to worry.’ So did you pay the arrears, did you?” the appellant replied “Yes, but I didn’t finish them. I think it was half, probably, there.” In his Witness Statement, which was filed in the appeal, the appellant said:
“Prior to this hearing, I spoke with my Housing Manager (“Linda”) who advised me that I would not have to worry about moving out if I paid rent.”
This statement differs somewhat from what the appellant had written in his Application for Interim or Other Orders. The Tribunal is satisfied that it was clear from what the appellant had written in this that the Housing Manager had told him if he paid the rent and the debt he would not have to worry about the hearing. Member Daniel used these same words “rent and debt” when asking the appellant about the conversation with Linda. The appellant frankly conceded that he had paid about half of the debt. This was able to be corroborated by reference to the rent account provided by the respondent. It is clear to the Tribunal that Member Daniel did ask the appellant about this conversation and it was also clear that the appellant understood that the advice was that if he paid the whole debt he would not have to worry about the hearing. The evidence before Member Daniel was that the appellant had not paid the whole debt and still did not attend the hearing on 10 July 2012.
The appellant also told the Member he was ‘scared’ as he had not been involved in court proceedings before. He confirmed this in his Witness Statement.
Ms Faulder submitted that in determining the reasonableness of his explanation for not attending that hearing the ‘reasonableness’ should have been assessed relative to the potential detriment to the appellant and the likelihood of the decision being different.
She said that the Member had also asked the appellant when his course was to end and he had told her it was in September 2013. Member Daniel had then stated “So you really need this accommodation?” and then noted, from the rent account, that the appellant had made two more payments since 10 July 2012, the first of $1,000 on 11 July 2012 and the second of $656 some 14 days later on 25 July 2012. Ms Faulder submitted this showed he acted on the discussion he had had with his Housing Manager.
While it may be the case that the appellant acted on the discussion with Linda, it is not in dispute that he had only partially followed Linda’s advice which was he did not need to attend court if he paid the debt off. The appellant had not paid the debt off on 10 July 2012 or on 8 August 2012.
Member Daniel was not satisfied that the appellant’s explanation for his absence on 10 July 2012 was adequate.
The appellant bears the onus of rebutting the presumption that the discretion was exercised correctly and must show some mistake or incorrectness in the Member’s decision such as that the Tribunal acted on an incorrect principle, gave weight to extraneous or irrelevant matters or gave no weight or insufficient weight to relevant considerations.
The Tribunal is satisfied, from reading the transcript that the appellant told the Member both reasons he had advanced at the appeal hearing as to why he had not attended the hearing on 10 July 2012 and that Member Daniel did consider the evidence of the discussion with Linda as well as the appellant being afraid to attend.
While, in the first instance, the appellant may have adopted the Member’s suggestion that Linda was referring to “arrears” it is clear that the Member then asked the appellant “So if you paid the rent and the debt before the court date, ‘I would not have to worry.’ So did you pay the arrears, did you?” The appellant knew that the proceedings had commenced due to rent arrears.[15] The Tribunal is not satisfied that the Member’s use of the word “arrears” caused any confusion for the appellant. The Member appropriately questioned the appellant about the conversation with Linda.
[15] Witness Statement of Appellant 1 November 2012, paragraph 31
The Tribunal does not accept the appellant’s submission that “In the circumstances, and absent any evidence that suggests Linda informed the Appellant he still needed to attend the hearing, it was not unreasonable for the Appellant to assume this meant that, if he paid something towards the arrears, he would not need to attend the tribunal hearing on 10 July 2012.”
Member Daniel was exercising the discretion available to her in section 56 of the ACAT Act; she was not satisfied that the appellant’s explanation for his absence on 10 July 2012 was adequate. She was entitled to reject or accept evidence she thinks is appropriate in all the circumstances. If there is some evidence available to the Tribunal on which the finding could be made and unless there is some proof of Wednesbury unreasonableness, her decision should be left untouched.
Having found that the appellant was aware of the hearing date and that he did not have a reasonable explanation for his non-attendance, the Tribunal is also satisfied that Member Daniel correctly applied the test in Allesch v Maunz. The Tribunal was not obliged to then consider the prospects of his case.

Conclusion

The Tribunal is satisfied that Member Daniel did consider the reasons advanced by the appellant for not appearing on 10 July 2012 including the conversation with the Housing Manager, Linda, as well as all of the appellant’s circumstances, including that he needed a roof over his head. Her findings and her decision were reasonably open to her on the evidence before her. The Tribunal is not satisfied that there is proof of Wednesbury unreasonableness.
The Tribunal concurs with the respondent’s submissions that Member Daniel correctly exercised her discretion pursuant to section 56(c)(i) of the ACAT Act and that no mistake or incorrectness in the manner in which she exercised the discretion has been demonstrated. The Tribunal is also satisfied that Member Daniel correctly applied the test in Allesch.
The Tribunal is satisfied that Member Daniel afforded the appellant procedural fairness.
The Tribunal has considered the appellant’s submission that Member Daniel gave too much weight to the option for the appellant to appeal the decision of 10 July 2012. In this regard the Tribunal notes the statements of the General President in Fisher at paragraph 47:
“Consistently with its statutory objective to ensure that the decisions of the tribunal are fair and its statutory obligation to comply with the rules of procedural fairness, the tribunal has an obligation to ensure that self-represented parties receive a fair hearing by giving the appropriate assistance. If that is not done, it may be difficult to be confident that the tribunal has considered the relevant factual and legal issues or has exercised any discretion appropriately and in any way that is consistent with achieving justice.”
The Tribunal is satisfied that these statements could equally be applied to Member Daniel on 8 August 2012, knowing that a legal avenue was available to the appellant, who was a self- represented party, to ensure that he was given the appropriate assistance to make relevant enquiries about further legal redress. The Tribunal is not satisfied that Member Daniel gave too much weight to the option for the appellant to appeal. Had she not informed the appellant of this legal avenue she could have been open to criticism.

ORDERS

The Tribunal makes the following orders:
i.Appeal AA 12/33 from decision dated 10 July 2012 allowed.
ii.Decision of 10 July 2012 is set aside.
iii.The Tribunal makes the following orders pursuant to paragraph 49(4) of the Residential Tenancies Act 1997:
A.    The appellant tenant is to pay future rent as it becomes payable under the tenancy agreement, less any rebate granted by the Commissioner for Social Housing, the next payment of rent being due on or before 28 December 2012 and weekly thereafter.
B.     If the appellant tenant fails to make a payment of future rent as required by paragraph (A) above:
a.     The tenancy agreement shall terminate at 5:00 pm the
    following day; and
b.     Upon termination of the tenancy agreement the lessor is
      entitled to possession of the premises.
C.     If the tenancy agreement is terminated by operation of paragraph (B) of this Order the tenant must vacate the premises on or before the date of termination.
D.    If the appellant tenant fails to vacate the premises as required by paragraph (C) of this Order the respondent Lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
iv.Appeal AA 12/33 from decision dated 8 August 2012 is disallowed.
v.The decision of 8 August 2012 is confirmed.

………………………………..

Ms E Symons
Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AA 12/33

APPLICANT: YUSAK ANDREAS FELLE

RESPONDENT: COMMISSIONER FOR SOCIAL HOUSING

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT: Welfare Rights & Legal Centre

RESPONDENT: ACT Government Solicitor

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBER: Ms E Symons, Presidential Member

DATE/S OF HEARING: 12 December 2012 PLACE: CANBERRA

DATE/S OF DECISION: 19 December 2012 PLACE: CANBERRA

PART B

RECOMMENDATION:

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

COMMENTS:

1579