Fisher and Commissioner for Social Housing in the ACT (Residential Tenancies)

In this matter, the appellant, Fisher, challenged a decision of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) concerning a residential tenancy dispute. The respondent, the Commissioner for Social Housing in the ACT, sought a termination and possession order for Fisher’s non-payment of rent. The Tribunal initially issued a conditional termination and possession order, which Fisher did not comply with, leading to a subsequent application for a warrant for eviction. The Tribunal made a termination and possession order and issued a warrant for eviction. Fisher appealed the decision, arguing that the Tribunal did not exercise its discretion correctly or exercised it on the basis of inaccurate or incomplete evidence.

The court was required to determine whether the ACAT exercised its discretion properly under sections 49(2) and 49(3) of the Residential Tenancies Act. The appellant argued that the Tribunal did not exercise its discretion correctly and that the onus on the tenant to persuade the Tribunal to exercise discretion in their favour should not increase with repeated defaults. The respondent contended that the Tribunal had correctly exercised its discretion and that Fisher had failed to discharge the onus of persuasion.

The court found that the ACAT did not exercise its discretion properly and that the order should have included specific directions for the Registrar to issue the warrant sought. The court noted that the failure to include such orders did not affect the validity of the termination and possession order but recommended revisiting the standard format for orders. The court also held that the exercise of discretion by the ACAT was ineffective and that the Tribunal should have considered the evidence more thoroughly. The court concluded that the Tribunal did not exercise the correct discretion or exercised it on the basis of inaccurate or incomplete evidence.

The appeal was upheld, and the termination and possession order made on 21 December 2011, along with the Warrant for Eviction issued on that day, were set aside. Additionally, Orders 2 to 4 of the orders made on 3 January 2012 were re-made as specified. The matter was remitted to the original tribunal for reconsideration in light of the court’s findings.