Fisher and Commissioner for Social Housing in the ACT (Residential Tenancies) - [2012] ACAT 32

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FISHER & COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Residential Tenancies) [2012] ACAT 32

AA 11/49
Catchwords: APPEAL – Residential Tenancy Dispute – conditional termination and possession order - application for warrant for eviction – expiration of conditional order after application made but before decision – interpretation of section 42A(1)(c) and conditional order – identifying the condition – interaction of section 42B and section 49 – exercise of discretion – duty to assist self represented party – remitting application to original tribunal

Legislation:ACT Civil and Administrative Tribunal Act 2008 ss. 6, 7, 36, 79, 82, 92
Residential Tenancies Act 1997 ss. 42A, 42A(1), 42B, 42B(1), 49(1), 49(2), 49(3), 49(4)

ACT Civil and Administrative Tribunal Procedural Rules (No. 2) 2009 s. 21

Cases:Smeaton v WorkCover Authority [2009] VCAT 1195

Tribunal: Ms L. Crebbin, General President

Date of Orders:            10 and 16 April, 9 May 2012
Extempore Reasons for Decision:           10 April 2012
Written Reasons for Decision  19 June 2012
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )
AA 11/49

BETWEEN:
DOUGLAS FISHER
Appellant

AND:
COMMISSIONER FOR SOCIAL HOUSING
IN THE ACT
Respondent

TRIBUNAL: Ms L. Crebbin, General President

DATE: 10 April 2012

ORDER

The Tribunal Orders that:

The appeal is upheld.
The termination and possession order made on 21 December 2011 and the Warrant for Eviction issued on that day are set aside.
Order 2 to 4 of the orders made on 3 January 2012 are re-made as follows:

i)The residential tenancy agreement between the appellant and the respondent in relation to premises at XXXX, continues;
ii)The appellant is to continue to pay rent in the sum of $294.10 each fortnight and a minimum of $40.00 for rent owed each fortnight; and
iii)Payment of rent and rent owed are to be made by way of Centrepay deduction.

The appeal is adjourned for further mention at 12.30pm on 16 April 2012.

It is noted that this order is made pursuant to section 53 of the ACT Civil and Administrative Tribunal 2008.

Ms L. Crebbin
General President

AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: AA 11/49
RT 99/692
Between:Douglas Fisher
Appellant/Tenant

And:Commissioner for Social Housing in the ACT
Respondent/Lessor

Appeal Tribunal: Ms L. Crebbin, General President
Date:16 April 2012
Orders in respect of premises: XXXXX X

The appellant is to file and serve material detailing the nature of the material interest or the conflict of interest that the appellant says is such that the original tribunal should not continue to deal with the application, by close of business on 30 April 2012.

The respondent is to file and serve any written submissions he wishes to make on the question of whether the original tribunal should continue to deal with the application, by close of business on 3 May 2012.

The parties will be notified of whether the application will be remitted to the original tribunal or whether a direction will be made under section 92(3) of the ACT Civil and Administrative Tribunal Act 2008, by close of business on 8 May 2012.

Ms L. Crebbin
General President
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: AA 11/49
RT 99/692
RE:DOUGLAS FISHER
Appellant

AND:COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
Respondent

ORDER
Tribunal:Ms L. Crebbin, Acting Appeal President

Date of Order: 9 May 2012

The Tribunal Orders that:

On considering the submissions made by the appellant’s representative by letter of 1 May 2012 and noting that the respondent makes no submissions, I am satisfied that in addition to orders 1 and 2 of the orders made on 10 April 2012, it is appropriate to order that the application for a warrant for eviction lodged by the respondent on 30 November 2011, be referred back to an original tribunal to hear the application according to law, having regard to the reasons for decision in this matter.

It is noted that the statement of reasons will be made available to the parties on 18 May 2012
CORRECTED ORDERS

The orders made on 10 April 2012 are corrected under section 63 of the ACT Civil and Administrative Tribunal 2008 to make it clear that the note at the bottom of the order refers to order 3 of these orders.

Ms L. Crebbin

Acting Appeal President
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: RT 99/692
RE:COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
Applicant

AND:DOUGLAS FISHER
Respondent

Tribunal:Ms L. Crebbin, General President

Date of Order: 9 May 2012

DIRECTIONS

On noting the orders dated 10 April 2012 and 9 May 2012 in appeal application AA 11/49 and the submissions made by the appellant in that matter by letter dated 1 May 2012, I consider that Appeal President Stefaniak should not continue to take part in the tribunal dealing with the application because of findings made by him as to the credit of the respondent. I therefore direct that:

Appeal President Stefaniak not continue to take part in the tribunal for the application and;
a new tribunal be made up for the application.
ORDER

The Tribunal Orders that:

1. The application be relisted for directions at 10.30am on 25 May 2012.
........................................

Ms L. Crebbin
General President
REASONS FOR DECISION

These reasons explain why an Appeal Tribunal upheld an appeal and set aside a termination and possession order that was made by an original Tribunal on 21 December 2011.

Background

The appellant tenant entered into a residential tenancy agreement with the respondent lessor for the lease of residential premises on 28 March 1994. Initially, the tenancy was a joint tenancy with the appellant’s then domestic partner. The appellant has lived in the premises since that time. An order was made declaring the tenancy to be in the sole name of the appellant on 7 December 2009. Sometime after this the appellant re-partnered. At the time of these proceedings the appellant lived in the premises with his current wife and her two children.
There have been a number of applications to the former Residential Tenancies Tribunal and to this tribunal since 1999 about the tenancy because the appellant has not always paid rent as it fell due. The applications have resulted in conditional termination and possession orders requiring the appellant to continue to pay rent and an amount towards rental arrears. When the first application was made in June 1999 it was said that the appellant and his then partner owed $3,479.65 in rent.
The application that led to the order the subject of this appeal was an application under section 42A of the Residential Tenancies Act 1997 (the RT Act) for the issue of a warrant for the eviction of the appellant (the application for a warrant). The provisions of that section and other sections of the RT Act that are relevant to this decision are set out in a schedule at the end of these reasons.
The application for a warrant was lodged because the appellant failed to make payments of rent and of rent arrears in accordance with a conditional termination and possession order made by the Tribunal on 20 December 2010.
The order of 20 December 2010 read in part ‘‘the residential tenancy agreement …shall terminate unless the tenant complies with the following conditions.” The conditions required the appellant to pay the sum of $345.45 each fortnight for rent and a minimum amount of $40 each fortnight in relation to rental arrears. The order was expressed to expire on 19 December 2011.
The appellant did not pay rent from 2 September to 10 November 2011. The appellant said that this occurred because Centrelink stopped his payments. The reason for and timing of action by Centrelink in relation to the tenant’s payments was unclear. Documents required to notify Centrelink that payments should be resumed were completed by the tenant in late October 2011. It was almost a fortnight before the first resumed payment could be made.
The application for a warrant was lodged with the Tribunal on 30 November 2011, about 3 weeks after payments resumed. The rental arrears were said to be $6,985.38 at that time. The application was heard on 12 December 2011 and the appellant appeared in person. Information about what happened at the hearing is set out later in these reasons. The hearing was adjourned to 21 December 2011 to enable the appellant to obtain further information about an inheritance he said he was going to receive. The appellant appeared in person again on the adjourned hearing, but had no further information to offer about the inheritance. At the end of the hearing the original tribunal allowed the application and made an order terminating the tenancy as of 11 January 2012. The appellant was required to vacate the premises and give possession to the respondent at 9am on 11 January 2012. A warrant for eviction was to be issued on notification that the appellant had not vacated the premises.
An application for appeal was filed on 23 December 2011. The grounds set out in the application for appeal read in part:
2. The order to issue the warrant of eviction was wrong because the order was made for the breach of a conditional order but the conditional order had already expired before the eviction order was made. The eviction order was also unjust because a particular set of circumstances led me to fail to pay rent and I had already put in place a process for paying rent and arrears and payments had been made. It is also unjust because this is home to my wife and 2 children, aged 13 and 14, as well as myself, and I have lived there for 18 years. I am in a wheelchair, my sole income is disability support pension and my wife receives carer pension to look after me.
3. I can provide medical evidence of my hospitalisation.
...
5. I am seeking an order to stay the eviction and a conditional order to enable me to sustain my tenancy and repay my rent arrears.

An Appeal Tribunal ordered that the issue of the warrant be stayed following an urgent interim hearing on 3 January 2012. Interim orders were made to enable the tenancy to continue until the appeal could be heard with a requirement that the appellant pay rent and an amount for rent arrears by way of Centrepay deduction. The Appeal Tribunal decided to deal with the appeal as a review of the original decision and made orders requiring each party to file submissions and other material they relied on in relation to the appeal.
The appellant arranged legal representation after the interim hearing. His representative filed an affidavit made by the appellant on 31 January 2012 providing brief information inter alia, about his rent payments, the circumstances that surrounded the failure to pay rent for approximately 2 months and the submissions he had made to the original tribunal about his capacity to pay rental arrears. There were no submissions relating to the grounds of the appeal itself.
The respondent filed submissions on 15 February 2012 that were directed to the grounds of appeal as the respondent understood them based on the application for appeal. The respondent understood the appellant’s case to be that the conditional order made on 20 December 2010 expired on 19 December 2011, before the original tribunal finalised its hearing, and that the Tribunal had no power to make an order on 21 December 2011.
The appeal was heard on 7 March 2012. Ms Faulder of the Welfare Rights and Legal Centre appeared for the appellant and Ms Katavic, of the ACT Government Solicitor’s Office appeared for the Respondent. Ms Faulder indicated that the appellant did not press the argument referred to in paragraph 12 but wished to raise a number of other arguments, some of which concerned matters of which Ms Katavic had no notice and which were not delineated in either the application for appeal or the appellant’s affidavit.
Rather than refuse to consider the new arguments, the appeal tribunal proposed, and the respondent agreed, that the hearing should progress as far as it could that day with the parties having an opportunity to make further written submissions and to later resume the hearing at a later date if necessary. This was an appropriate procedural response given that the appellant was unrepresented at the original hearing and had had only brief legal advice before lodging his application for appeal over the summer holiday period, the serious nature of the orders that were the subject of the appeal and the desirability of the tribunal dealing whenever possible with the substantive issues in dispute.
The hearing progressed as far as possible. It was adjourned with directions requiring the appellant to make further written submissions and to allow the respondent an opportunity to respond.
Submissions were filed by both parties. The hearing resumed on 27 March 2012. At the hearing the grounds of the appeal were clarified and each party given an opportunity to address the grounds by oral submissions in support of the written submissions lodged. The decision was reserved until 10 April 2012 when orders were pronounced upholding the appeal and setting aside the original tribunal’s order of 21 December 2011. Short extempore reasons were given. Submissions were sought from the parties about what further orders should be made, if any, in light of the findings of the Tribunal. On 9 May 2012, after considering the submissions, an order was made referring the matter back to an original tribunal to hear the application according to law, having regard to the Appeal Tribunal’s reasons for decision. A direction was made under section 92 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) for a new tribunal to be made up for the application.
The appellant requested a written statement of reasons. This statement sets out the tribunal’s decision in relation to each ground of appeal.
The order of 21 December 2011 was not valid because it was made after the conditional order dated 20 December 2010 had expired.
This ground was abandoned by the appellant at hearing. It is an argument that has been raised in other matters and it is appropriate that it be dealt with briefly. The Tribunal’s power to consider an application for a warrant when it has issued a conditional termination and possession order is enlivened in the circumstances set out in section 42A(1) of the RT Act. A lessor may apply for a warrant if, amongst other things, the conditional order has not expired. Once enlivened, the Tribunal’s power continues until it has considered the application at a hearing, heard the parties who attend the hearing and either allowed the application or dismissed it. That follows from the provisions of section 36 of the ACAT Act and sections 42B(1) and 42B(2) of the RT Act. The power does not come to an end because the conditional order expires before the Tribunal discharges its obligation to hear and decide the application.
In this case, the conditional order had not expired when the respondent lodged the application for a warrant. It was still current when the Tribunal’s hearing of the application commenced. Its expiry two days before the Tribunal made its decision did not affect the Tribunal’s power to make a decision.
It was appropriate for the appellant to abandon this ground. Had it been pressed, it would have been rejected.
The respondent was not able to apply for a warrant of eviction because the condition precedent in section 42A(1)(c) was not satisfied in this case.
Section 42A(1)(c) of the RT Act provides that a lessor may apply to the registrar of the Tribunal for a warrant for the eviction of a person if the Tribunal has issued a conditional termination and possession order and
...
(c) the lessor satisfies the registrar that the condition has been satisfied;...

The appellant submitted that ‘the condition’ referred to in s42A(1)(c) was the condition imposed in the conditional order made on 20 December 2010 requiring the appellant to pay the sum of $345.45 each fortnight for rent and a minimum amount of $40 each fortnight for rental arrears. As the tenant had defaulted on the conditions, it could not be said that the ‘condition had been satisfied’. The conditional order was worded such that the tenancy agreement would terminate if the condition as to the payment of rent and rent arrears was not satisfied (emphasis added).
The appellant acknowledged that this construction of s42A(1)(c) may not accord with the legislator’s intention but said that it was not possible to stretch the interpretation of section 42A(1)(c) by reading the word “not” into it. The condition precedent to the making of an application for a warrant had not been met and the Tribunal had no power to make the order dated 21 December 2011.
In summary, the respondent submitted that neither section 49(4) (which provides for the making of conditional termination and possession orders), nor section 42A(1) of the RT Act expressly indicates what is meant by the ‘condition’ that founds a conditional termination and possession order. Section 49(4) provides for the Tribunal to make an order such that if the tenant fails to pay the rent that is payable, or rent that becomes payable, the tenancy will terminate on the day after the day that payment was due but not made. The “condition’ must be the failure to pay rent that has become payable. Section 49(4) and section 42A must operate in this way if the purpose of the law is to be given effect to, regardless of the way in which a particular order is expressed.
The respondent said that the proper interpretation of the conditional order made on 20 December 2010 is that order 2 of the order imposed an obligation on the tenant to avoid termination of the agreement by making specified payments. It contains the relevant condition namely, that the tenancy shall terminate unless the tenant complies with the requirements to make the specified payments. If the tenant does not meet the obligation, the condition is satisfied and termination follows. Such an interpretation is consistent with the purpose of the legislation and complies with the principles of statutory interpretation. The appellant had not met his obligations under the order and therefore the condition upon which termination is found was satisfied.
The Tribunal accepts the submissions of the respondent in relation to this ground. It is true that there is tension between the wording of section 49(4) of the RT Act, the wording of the conditional order made in this matter (which is in the form usually used by the Tribunal for such orders) and the wording of section 42A(1)(c) of the RT Act; but it is not an irreconcilable tension.
The construction of section 42A(1)(c) and the order made on 20 December 2010 urged by the appellant is inconsistent with the statutory scheme, as the appellant’s representative concedes. It gives rise to two obvious absurdities:
(a)a tenant who has failed to pay rent as required by an order can rely upon his or her own default as a basis to resist an order for termination, and thereby defeat the rights of the innocent party to the contract constituted by the tenancy agreement. There is ample authority that statutes ought not be construed in a manner that permits such an outcome;

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

The conditional order made on 20 December 2010 should be interpreted in a way that is consistent with the legislative context in which it was made. The interpretation proposed by the respondent is both reasonably open on the face of the order and consistent with the legislative context. It resolves the tension and should be adopted. Having said that, the tension could be avoided in future matters by a re-drafting of the standard form used by the Tribunal for conditional termination and possession orders.

The Tribunal was unable to make the termination and possession order on 21
December 2011 because the respondent had not served a termination notice in
accordance with the requirements of section 49(1)

The appellant contends in summary that on a proper interpretation, section 42B(1) of the RT Act requires that before the Tribunal can allow an application made under section 42A, the lessor is required to serve a new termination notice in accordance with s49(1)(b). This is said to follow from the requirement in section 42B(1) that an application under s42A ‘must be decided as if it were an application under section 49 for a termination and possession order’.
In this case, the respondent lessor did not serve a termination notice on the appellant when he failed to pay rent between September and 10 November 2011, therefore the appellant submits, the requirements of section 49(1) were not met and the tribunal should not have proceeded to allow the application for a warrant.
The reference to section 49 in section 42B(1) is said to be demonstrative of a legislative intent that the whole of the process to be followed for an application for termination for failure to pay rent, must also be followed in an application for a warrant for eviction in relation to a conditional termination and possession order.
The respondent made a number of submissions in support of a contention that this construction of section 42B(1) is incorrect. The Respondent’s alternative construction is primarily based on the need to identify a coherent statutory scheme.
The respondent’s submissions can be summarised by saying that the requirement in section 42B to treat an application under section 42A ‘as if it were an application under section 49’ does not operate to convert the section 42A application into a section 49 application. The two sections operate in different contexts within the legislative scheme.
The Tribunal accepts that section 42B(1) does not require that a lessor who has already obtained a conditional order, start the process for terminating a tenancy agreement and recovering vacant possession of his or her premises again, by first establishing that the tribunal’s power to make such an order is engaged because the requirements of section 49(1) are met. There would be no point in providing that a lessor can make an application for a warrant for eviction under section 42A if that were the case. The source of the Tribunal’s power to make an order in response to an application made under section 42A is contained in section 42B. The power is enlivened if the criteria set out in section 42A(1) are met. The Tribunal does not look to section 49(1) to find its power and does not need to repeat the process of satisfying itself of the matters set out in section 49(1) before it can make the orders provided for in section 42B.
The construction urged by the appellant renders section 42A and section 42B largely, if not wholly, redundant and is inconsistent with the scheme of the legislation. This outcome is avoided by the recognition that the words ‘as if it were an application under section 49’ are simply a device for incorporating by reference, the discretionary powers contained in section 49 into section 42B. It is a device that enables the Tribunal to re-visit the conditional termination and possession order (which would otherwise be self-executing on proof of a failure to make payments in accordance with the terms of the order) and to consider exercising discretions that will allow the tenancy to continue notwithstanding a default in payment. This interpretation is supported by a reading of section 42B(4) which sets out the orders that the Tribunal can make if the application to issue a warrant is dismissed.
This ground of appeal is therefore, not made out. The failure of the respondent to issue a fresh termination notice following the failure of the appellant to pay rent and rent arrears in 2011, does not render the original tribunal’s orders of 21 December 2011 invalid.
I note however that the orders are not expressed in terms that accord with the power to make orders contained in section 42B. There is no order dealing with the disposition of the lessor’s application for a warrant. Rather, the orders are set out as termination and possession orders, including a direction as to the issue of a warrant. This issue was not raised by either party.
The orders are in the standard form used by the Tribunal for orders when an application made under section 42A is allowed. The purpose of the orders is to make it clear that the tenancy agreement is terminated and that possession is to be given by the tenant to the lessor on a specified date. I accept that it is desirable for the orders to be set out in this way to ensure that there is a clear and immediately available record that confirms the termination of the tenancy agreement. Otherwise, the lessor and tenant have to rely on the terms of the original conditional order, findings made under section 42A and orders made under section 42B to provide the record that establishes the fact of termination.
In my view, the order should have included an order made under section 42B(2)(a) allowing the application, as well as an order under section 42B(3) directing the Registrar to issue the warrant sought. The failure to include such orders does not, in my view, affect the validity of the order made on 21 December 2011, but it is appropriate that the standard format for orders made in response to an application brought under section 42A, be re-visited as soon as possible.
The original tribunal made its decision based on inaccurate or incomplete evidence and/or did not exercise its discretion properly
This general heading describes a number of submissions made on behalf of the appellant that were about the substantive matters before the original tribunal rather than issues of technical validity or form. The original tribunal was said to have made errors of law and of fact because it did not exercise its discretion properly, or in the alternative, did not exercise the correct discretion or, in the alternative, exercised its discretion on the basis of inaccurate or incomplete evidence. I am satisfied that this ground is made out and that the exercise by the original Tribunal of its discretion was ineffective.
To deal with the submissions it is necessary to consider the relevant discretions available to the tribunal under section 49 and the transcript of the proceedings before the original tribunal in some detail.
Section 49(2) provides the Tribunal with a discretion to refuse to make a termination and possession order if the tenant has remedied a default by paying any rent arrears, is reasonably likely to pay future rent as it becomes payable; and the ACAT considers it just and appropriate to do so.
Section 49(3) provides the Tribunal with a discretion to make a conditional termination and possession order where the default in payment has not been remedied, but where the tenant is, in the ACAT’s opinion, reasonably likely to pay the rent arrears as well as future rent as it becomes payable and the tenant agrees to pay the arrears and undertakes to pay the future rent.
On appeal, the respondent’s representative submitted that once the Tribunal is satisfied that the criteria in section 42A(1) are met, the tenant has the onus of persuading the Tribunal that it should exercise one of the discretions available to it under section 49 in the tenant’s favour and not make the order sought by the lessor. The onus borne by the tenant is a heavy one that should be regarded as increasing in circumstances in which there have been repeated defaults of conditional orders. It is for the tenant to provide evidence relevant to the exercise of the discretion and in this case, she said, the tenant had not provided any relevant evidence and had not discharged the necessary onus. It was open to the original Tribunal in those circumstances to make the orders that it did.
I accept that a tenant, who wishes to continue a tenancy notwithstanding a breach of the tenancy agreement, has the onus of persuading the Tribunal that a discretion should be exercised in his or her favour. I do not accept that the onus increases where there are repeated defaults, although the fact that there are repeated defaults may be relevant to the outcome of the exercise of the Tribunal’s discretion.
While it is true that the tenant must provide evidence to support the exercise of the discretion, tenants appearing before the Tribunal who are representing themselves cannot be expected to know the law, know what they are required to establish or what they are required to provide by way of evidence. These applications are set down for hearing immediately. There is no conferencing or other preliminary process that would allow the Tribunal to give direction to the tenant about what is required for the hearing. There is no duty lawyer service at the Tribunal’s premises to advise self represented tenants facing eviction and, while information about sources of legal advice and assistance is readily available, many tenants do not avail themselves of assistance before hearings.
Consistently with its statutory objective to ensure that decisions of the Tribunal are fair and its statutory obligation to comply with the rules of procedural fairness[1], the Tribunal has an obligation to ensure that self represented parties receive a fair hearing by giving them appropriate assistance. That does not mean that a Tribunal member should run the self represented party’s case for them, but the member may need to tell the party what the law requires the Tribunal to consider, to direct attention to relevant evidence and to ask questions to draw out the information it requires. 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 a way that is consistent with achieving justice. The application of the duty was described by his Honour Justice Bell, in Smeaton v WorkCover Authority[2] in this way:
To ensure Mr Smeaton was given a fair hearing, I made an opening statement explaining the procedure I would follow and the main issues in the case, in terms appropriate to the nature of the case and his level of understanding...I brought to his attention the relevant factual and legal issues and, in an appropriate manner, assisted him to articulate his response...Where appropriate, I asked questions of him so that he could fill in some gaps, or elaborate on the factual circumstances of his case...”
[1] Sections 6(e) and 7, ACT Civil and Administrative Tribunal Act 2008
[2] [2009] VCAT 1195
The transcript of the hearing on 12 December 2011 shows that the hearing commenced with the respondent’s representative agreeing with the tribunal member that she was “seeking a termination”. There was no reference to the application being an application for a warrant for eviction under section 42A and no reference, at that stage, to the provisions of section 49 of the RTA.
The representative told the original Tribunal that the appellant resided at the premises with his wife and her two children and that he had lived there since March 1994. She said that his rental account had last been in credit in 2003 and that four conditional orders had been made in relation to the tenancy since 2008. She referred to the various applications to this and the previous tribunal and to the arrears of rent owing when each conditional order was made. She said that there had been 16 attempts to contact the appellant “over the last 12 months” and described both successful contacts made with the appellant and unsuccessful attempts to contact him dating back to 8 December 2010.
The respondent’s representative said that the respondent had made “extensive efforts to try to work with the appellant without any success. There have been referrals made to Woden Community Services. The Housing manager has demonstrated a commitment to assisting (the appellant) by contacting him on nearly a monthly basis over the last 12 months. Mr Fisher has not accepted his responsibilities under his tenancy agreement to pay rent in accordance with that agreement.” She requested that the tenancy be terminated and vacant possession granted as at 6 January 2012.
The member asked the representative where he would find the clause that related to the tenant being “reasonably likely to maintain the” tenancy. There was an exchange between the member and the respondent’s representative that led to the member being referred to section 49 (2). There was no mention of the discretion open to the Tribunal under section 49 (3) and no discussion about what those sections entailed or what legal or factual issues the Tribunal had to consider.
At this point, the appellant interjected, saying “Can I just point out that half of the information she has just given you is incorrect.” He was then asked by the member what he wanted to say and was invited, without further direction, to have his “turn”. The appellant did not request the member to exercise either of the two discretions available under section 49. He made no reference to the legislation, but rather, responded in very general terms to some of the assertions made by the respondent’s representative. It was clear that he opposed the respondent’s application, but it was not clear that he was aware that there was a discretion to be exercised and that he was required to provide evidence to persuade the Tribunal if he could, to exercise the discretion in his favour.
He did not, nor was he asked to; provide evidence that specifically addressed matters relevant to the exercise of the Tribunal’s discretion under either section 49(2) or section 49(3), other than in an incidental way. There is nothing in the transcript to indicate that he was aware of what things might be relevant for the member to know about. The questioning of him by the Tribunal to elicit relevant information was limited.
An assertion was made on behalf of the respondent that the appellant had, on several occasions, cancelled his Centrelink deduction. The appellant interjected saying that the rent payments had been stopped by Centrelink rather than cancelled by him. There was no questioning of him about when or why that had happened, when the problem had come to his attention, what steps he had taken to make manual payments of rent, what steps he had taken to re-instate the automatic payments and what steps had been put in place to minimise the risk that Centrelink might cancel his deductions in the future.
He was asked questions that elicited the information that he had a wife who did not work and that there were two teenage children in the house.
After some toing and froing about what contact there had been between the appellant and officers of the respondent, the respondent’s representative was sworn in and questioned about notes on her file recording attempts to contact the appellant. The appellant was invited to ask questions but he declined to do so.
The appellant then made an affirmation. After giving his name and address, he identified that he was “on a disability pension”. This was the only information before the Tribunal on this day about the appellant’s financial circumstances. There was no questioning of the appellant about the amount of his income, about his expenses, his assets or his liabilities. There was no discussion about his wife’s financial circumstances, other than to say that she did not work. There was no discussion of any contribution that she did or could make to the payment of rent.
The appellant has a significant and evident physical disability. He has limited mobility and limited use of his upper limbs. He uses a wheelchair. There was no discussion about the nature and extent of the appellant’s disability, or questioning about whether he receives additional allowances because of it or has additional expenses such as transport costs, medical needs, equipment and support needs. The only reference to his disability came about when the appellant spoke of the failure of the respondent to arrange to have a ramp installed at the house so he could access it and his need to meet the cost of the installation himself.
After affirming, the respondent was asked:
Now, you’ve indicated to the Tribunal so far a number of things where you say what Housing is saying isn’t necessarily right. Do you stand by what you’ve said to start with?----- I certainly do.
All right, what else would you like to say?----That I have done everything Housing have done. I’ve done everything this particular officer’s mentioned to me on the other occasions I have been here. The payments are back on, to the best of my knowledge now. Yes. And I will fix up that arrears. As I advised ...I was waiting for an inheritance to come through. As soon as that came through I’d fix up that $2,600.
The member asked a number of questions to obtain more information about the inheritance, indicated that he would adjourn the hearing for several days to give the appellant an opportunity to provide more information about the inheritance. He then gave an indication of his view. The member said:
...I’ve heard from both...Mr Fisher, on oath and also Ms Boljkovac...But I’m certainly satisfied that Ms Boljkovac has actually accessed what is on the electronic file for Housing which does seem to be at odds in many aspects to what Mr Fisher says...But in the absence of any formal proof to the contrary from Mr Fisher and what seems to be quite strong evidence from Ms Boljkovac, borne out to an extent by the limited number of written file notes and emails on the file that I’ve seen, I’d have to say that Housing has certainly made out their case, and that I am certainly satisfied on the balance of probabilities that they have made numerous attempts to engage with the client and things have gone wrong.
After referring to the various conditional orders made in relation to the tenancy he continued:
I must say in the absence of anything else put before me today I’d have to say I would accept the Housing submission that, effectively, it isn’t likely that the tenant is going to continue to pay future rent as it becomes payable and ACAT under section 49(2) can refuse a termination and possession order if the tenant has paid any rent that’s become payable and is, in ACAT’s opinion, reasonably likely to pay future rent as it becomes payable. I’d have to say at present I think it’s highly unlikely that the tenant is going to be able to continue to pay rent at this point in time, and certainly make any real amends to drop back his debt. And I’m certainly satisfied, just from what I’ve had put before me, that Housing has certainly made out their case, which would mean in the normal circumstances, and having had four actual chances to rectify - and I must say I find the record-keeping of Housing to be fairly persuasive, compared with just some allegations made by the tenant with nothing really to back them up - he may be somewhat mistaken perhaps, in terms of his recollection, but there’s nothing to back that up and he hasn’t come here today with anything to do so.
So overwhelmingly the evidence is in favour of Housing and an eviction would normally follow, except for one thing, and that is the tenant’s indicated that ... he has an uncle who’s died overseas. ... If this is true and the solicitor confirms that yes, he is entitled to $10,000 and yes,... it’s imminent ... yes, the debt can be repaid immediately then clearly that’s good news for everyone. It means that Housing’s debt is wiped and that amount of money owed to the ACT taxpayer has gone back into the Housing coffers. It also means that Mr Fisher can start with a clean slate and it would then mean that rather than me evicting I would probably do a ... conditional eviction of some description. Probably one of the ones where I evict and then suspend it for a few months to see how it goes. And hopefully, if everything goes well and continues to go well that’ll be the end of the matter.
So Mr Fisher, I hope what you’re saying is correct because there is a real chance if it is that (1) the debt’s going to be wiped, and (2) you’ll basically start afresh without having to worry too much, as long as you keep paying your rent. But I will say you’ll be under a conditional order, just to make sure that you do the right thing. But I would think that if you are correct and this debt can be wiped you’re in a very, very strong position to satisfactorily maintain your tenancy and overcome any future dramas because it seems now you’re Centrelink’s been all worked out and you’ve got the capacity now to, if that continues and all the paperwork’s been done, to sustain the tenancy. But with your track record to date I’d have to say I have no - you know, without something like that I’ve got absolutely no confidence that you’re reasonably likely to sustain the tenancy.
So it’s very much dependent on, unfortunately, your deceased uncle and this money coming through, but if that comes through you’ve got a very good chance of saving your tenancy, ...
So hopefully this is all true, because if it isn’t and this man doesn’t exist, then unfortunately next Monday you’ll be evicted.

The passage highlighted in bold print above shows that the member’s intention was to deal with the matter under section 49(2) so that if the appellant paid the whole of the rent arrears, he would consider making some form of conditional order. This appears to conflate the operation of sections 49(2) and 49(3) and overlook the existence of a discretion available even if the appellant was unable to pay the whole of the rent arrears.
The hearing resumed on 21 December 2011. The appellant could not verify his assertion that he was to receive an inheritance and could not provide contact details for the solicitor he said he had spoken to about the inheritance. On hearing this, the member said: “well, they’ve just evicted you then. I don’t believe you quite frankly.” After further discussion of the possible inheritance the appellant told the member that rent had been paid since the commencement of November and that an additional payment of $200 had been made on 20 December 2011. He said that he was able to pay an additional $200 per fortnight towards arrears in the future.
Mr Fisher’s wife attended this second hearing. She confirmed that she did not work. Mr Fisher said that she received a Carer’s Pension. The Tribunal was provided with information about the rebated rent they were required to pay. Mrs Fisher re-iterated the suggestion that a further $200 per fortnight be paid towards the arrears and Mr Fisher asserted that that amount was “easily sustainable”. No further evidence was given about the family’s financial circumstances to establish the basis of the assertion. The member replied:
Well, unfortunately I beg to differ there. I think this is an unsustainable tenancy. I think it’s quite tragic because you’ve got two children of 12 and 14. You’ve obviously got a supportive and caring wife but unfortunately there are four conditional terminations and the debt just keeps growing....There’s been numerous attempts by Housing, 16 attempts to speak with you, help you out, try to get it all back on track since December last year....she read out on the last occasion the litany of attempts, failed attempts to try to actually engage with you and finally at the last hour we had this possibility which I really hoped would come to pass...so unfortunately. I find that Housing has made every conceivable attempt to help maintain this tenancy and, you know, you’ve just really been very casual in the way you’ve approached it...
The termination and possession order was then made.
On appeal, the Tribunal needs to be cautious not to interfere too readily with the exercise of a discretion and not to examine transcripts and reasons microscopically to determine how a discretion has been exercised, but given the serious subject matter of this case and the consequences for the appellant and his family of the exercise of the discretion against him, the Appeal Tribunal should at least be confident that the correct discretion has been exercised and that it has been exercised following consideration of the relevant factual issues.
In this case, the only reference to the relevant law was to section 49(2). That section provides the Tribunal with a discretion to refuse to make a termination and possession order when a tenant has paid rental arrears in full. When it became apparent at the commencement of the resumed hearing, that the tenant was not going to be able to pay the outstanding rent, the issue of whether the discretion given by section 49(3) should be exercised in favour of the tenant, was enlivened. This required the member to consider whether the tenant was, in his opinion, reasonably likely to pay the rent arrears as well as future rent as it becomes payable. The repeated reference to section 49(2), the absence of any reference to section 49(3), and the continued focus on the tenant’s failure to corroborate his story about his prospective inheritance, makes it difficult to be confident that the member did in fact, turn his attention to the provisions of section 49(3). The member expressed an opinion that rent would not continue to be paid and referred to the bare outline of the past history of payments and to his satisfaction that Housing had done everything it could to help “sustain the tenancy” to support that opinion, but the context in which the opinion was expressed was not clear.
In order to exercise the discretion under section 49(3), one would expect the Tribunal to have evidence from the tenant about the tenant’s income, expenses, assets, liabilities and about any other financial resources that may be available to him or her. In this matter, the information about those things was limited to a reference to the fact that the tenant received a disability support pension and that his wife received a carer’s pension. The Tribunal was told about the amount of the rebated rent the tenant had to pay. That information was provided after the member pronounced his decision.
I do not wish to be taken to suggest that there should have been an adjournment to allow the tenant to provide a detailed budget, but it would have been appropriate for the member to ask direct questions of the tenant to gain an understanding of his financial circumstances and for the respondent to provide the Tribunal with the information that it had about those things on its file so that there could be a meaningful assessment of the likelihood that the tenant would be able to continue to make payments of arrears and future rent. The tenant could have been asked to gather material about his financial circumstances during the period of the adjournment, as well as information about the alleged inheritance, so that it could be presented at the resumed hearing. That information would have been relevant for the tribunal to consider had it been in a position to exercise the discretion under section 49(2), in any event.
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 rent 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 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. With the exception of information about Mr Fisher’s engagement with Woden Community Services, no evidence about these things was offered by the tenant, nor sought by the Tribunal. Information made available for the appeal suggested that information given to the original tribunal about several referrals having been made to Woden Community Services and the inference that the appellant had not engaged with the service, was incorrect. There is also some doubt about information given about the frequency of contact with the appellant by the respondent’s officers and the extent to which the appellant responded to contact.
Taking these things into account, I cannot be confident that the member exercised the correct discretion or that if he did; his exercise of the discretion was effective. Further, I am not satisfied that the hearing was fair to the tenant because of the lack of clarity about the legal and factual issues that the Tribunal had to consider and that he would be required to address.
Having reached this conclusion, I made orders on 10 April 2012 setting aside the decision of the original tribunal and asking the parties’ representatives to make submissions about the orders that should now be made. After considering the submissions, I determined that the application should be referred back to an original tribunal to be heard in accordance with the guidance given in this decision. I adopted this course because of the view formed about the failure of the original tribunal to either exercise the correct discretion or to exercise it effectively, and because the evidence required to exercise the correct discretion effectively, was not before the Appeal Tribunal. I decided initially to deal with the appeal as a review of the whole of the original decision. Having done so, it seemed inappropriate to proceed with a re-hearing. I noted that there is no express power in the ACAT Act or in the ACT Civil and Administrative Tribunal Procedural Rules (No 2) 2009 (the ACAT Rules), to remit a matter for re-hearing, but such a course is, in my opinion, consistent with the breadth of the Tribunal’s powers to deal with appeals contained in sections 79 and 82 of the ACAT Act and section 21 of the ACAT Rules.
The appellant’s representative gave notice that while the appellant did not accept that there was a power to refer the matter back to an original tribunal, the appellant objected to the matter being dealt with by the original member because of findings he made about the appellant’s credibility. I considered and accepted the objection. I directed that the original member not continue to deal with the application and that it be allocated to another member using the powers given to the general president under sections 50 and 92 of the ACAT Act.
Finally, I note that the appeal proceeded on the basis that the appellant accepted the validity of the conditional termination and possession order made on 20 December 2010 and of the earlier orders on which it, in turn, had been based. This was an appropriate concession because the time for appealing against or otherwise challenging the 2010 order and earlier orders had long passed. While the Tribuanl’s file does not appear to be complete, the material on the file does give rise to a real question about the basis on which that order was made.

………………………………..
Linda Crebbin

General President

FISHER & COMMISSIONER FOR SOCIAL HOUSING IN THE ACT (Residential Tenancies) [2012] ACAT 32

SCHEDULE OF PROVISIONS

Residential Tenancies Act 1997

42AFailure to comply with conditional order
(1)A lessor may apply to the registrar for a warrant for the eviction of a person if—
(a)the ACAT has issued a conditional termination and possession order; and
(b)the order has not expired; and
(c)the lessor satisfies the registrar that the condition has been satisfied; and
(d)the person to whom the order was directed continues to live at the premises.
(2)On receiving an application for a warrant, the registrar must—
(a)list the application for hearing before the ACAT not earlier than 1 week after the day the notice under paragraph (b) is given to the person; and
(b)give notice to the person to whom the conditional termination and possession order is directed stating—
(i)that an application for a warrant for eviction has been made; and
(ii)the time when, and the place where, the application is to be heard; and
(iii)that the person should seek legal advice about the application if the person wants to continue to live at the premises.

42BHearing of application
(1)An application under section 42A must be decided as if it were an application under section 49 for a termination and possession order.
(2)After considering the application and hearing the parties who attend the hearing, the ACAT must—
(a)allow the application; or
(b)dismiss the application.
(3)If the ACAT allows the application, the ACAT must direct the registrar to issue a warrant for the eviction of the person.
(4)If the ACAT dismisses the application, the ACAT may—
(a)confirm the conditional termination and possession order; or
(b)make another conditional termination and possession order; or
(c)set aside the conditional termination and possession order.

Failure to pay rent
(1)On application by a lessor, the ACAT may make a termination and possession order if—
(a)the tenant has failed to pay rent that has become payable under the residential tenancy agreement; and
(b)the lessor has served a termination notice on the tenant on the basis of the failure to pay rent; and
(c)the tenant has not vacated the premises in accordance with the notice.
(2)If a lessor has made an application under subsection (1), the ACAT may refuse to make a termination and possession order if—
(a)the tenant has paid any rent that has become payable and is, in the ACAT’s opinion, reasonably likely to pay future rent as it becomes payable; and
(b)the ACAT considers it just and appropriate to do so.
(3)Subsection (4) applies if—
(a)the tenant is, in the ACAT’s opinion, reasonably likely to pay the rent that has become payable as well as pay future rent as it becomes payable; and
(b)the tenant agrees to pay the rent that has become payable, and undertakes to pay future rent as it becomes payable, as required by the ACAT.
(4)Instead of making a termination and possession order under subsection (1), the ACAT may order (conditional termination and possession order) that if the tenant fails to pay the rent that has become payable, or future rent as it becomes payable, as required by the ACAT—
(a)the tenancy terminates at a stated hour on the day after the day when any rent becomes payable and is not paid; and
(b)the lessor becomes entitled to possession of the premises and all rent payable is payable immediately.
(5)If—
(a)the ACAT makes an order under subsection (1); and
(b)the ACAT is 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;
the ACAT may suspend the operation of the termination and possession order for a specified period of no more than 3 weeks.

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	AA 11/49
PARTIES, APPLICANT:	Douglas Fisher
PARTIES, RESPONDENT:	Commissioner for Social Housing in the ACT
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT	Ms Faulder, Welfare Rights & Legal Centre
SOLICITORS FOR RESPONDENT	Ms Tarbet, ACT Government Solicitor
TRIBUNAL MEMBERS:	Ms L. Crebbin
DATES OF HEARING:	7 March 2012
PLACE OF HEARING:	ACAT, Canberra

PART B

RECOMMENDATION:

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

COMMENTS: